Lsp IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 524 of 2009 Seth Cursondas Netha Girgaum Sanitarium Trust ..Petitioner v/s. Jayantilal Damji Pandit ..Respondent Arshad Shaikh a/w. Sanjay Udeshi i/b. Sanjay Udeshi & Co. for the petitioner. Viral Shukla i/b. Shukla & Associates for the respondent. CORAM CORAM CORAM : : : A.M.KHANWILKAR,J. A.M.KHANWILKAR,J. A.M.KHANWILKAR,J. DATED DATED DATED : : : APRIL 06, 2009. APRIL 06, 2009. APRIL 06, 2009. P.C. . Heard Counsel for the parties. 2. Rule. Rule returnable forthwith, by consent. 3. Mr. Viral Shukla waives notice for the respondent. 4. As short question is involved, petition is taken up for final hearing forthwith, by consent. 5. This Writ Petition takes exception to the Judgment and order passed by the 10th Labour Court, Mumbai dated 13-10-2008 in Application (IDA) No. 158/1992. The said application was filed by the respondent under Section 2 33C(2) of the Industrial Disputes Act, 1947 against the petitioner claiming money benefits of Rs. 94,966/-. 6. The petitioner contested the claim of respondents. In the reply, it is specifically stated that there was no relationship of employer-employee between the parties. According to the petitioner the respondent was given power of attorney for specific purpose to represent the trust, but was not an employee of the trust as such. The respondent on the other hand insisted that he was in the employment of petitioner trust. In support of that stand the petitioner produced certain documents amongst others at page-60 and 57 of the paper book. The petitioner demonstrated the discrepancy in the said document to substantiate its stand that the documents were forged and fabricated. In that, the respondent abused his position as power of attorney and used the letter head of the trust for fabricating these documents. In view of the stand taken by the petitioner, obviously, the issue as to the relationship of employer and employee between the parties was a contentious issue and could not be addressed in proceedings under Section 33C (2) of the Act-until that issue was to be resolved by the competent forum. Till then the question of respondent claiming any benefit in terms of provisions of Section 33C of the Act does not arise. The petitioner amongst others 3 pointed out that the document at page-60 clearly indicates that letter head mentions year 197__, which presupposes that it was printed to be used for period after 1970. However,the letter is dated 25-11-1967. Besides this document, even the document at page 57, prima-facie, supports the claim of the petitioner that the said letter head was printed alongwith the letter head at page-60-as even this document mentions the date as 197__ which means it was printed for the purpose of using it for the period after 1970. 7. Suffice it to observe that the stand of the petitioner is a triable issue which could not be addressed in proceedings under Section 33C of the Act. To get over this position, the Court below has answered the same on the assumption that the material on record does not disclose any dispute about the existence of relationship between the parties of employer and workman. As aforesaid, it is not open to the authority before whom proceedings under Section 33C(2) of the Act is instituted to address the issue of relationship between the parties. That has to be done by some other competent authority and not in the summary proceedings. On this count alone the impugned judgment and order deserves to be set aside. 8. Indeed, Counsel for the respondent tried to 4 persuade me to examine all other documents on which respondent had relied before the Labour Court including the oral evidence of the parties. However, that is not the scope of the enquiry under Section 33C(2). That remedy is available only to person whose status as workman is indisputable. 9. In the circumstances, this petition succeeds. The impugned judgment and order is set aside with observation that it will be open to the respondent to first seek declaration before the Court of competent jurisdiction about his status as that of workman and existence of relationship between the parties of employer and workman. Only whereafter it will be open to the respondents to pursue remedy under Section 33C, if so advised. All questions in that behalf are left open and will have to be decided on its own merits in accordance with law. 10. In so far as the amount deposited by the trust which is lying with the lower authority, the same be made over to the trust on trust giving solvent surety to the extent of said amount with undertaking to bring back the said amount alongwith the accrued interest if the Court of competent jurisdiction so directs in the appropriate proceedings. 5 11. Petition disposed of on the above terms. Ordered accordingly. [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.]