IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 WP(C).No. 17608 of 2005(U) -------------------------- PETITIONER(S): --------------- 1. K.K. ACHUTHAN, S/O. KORAN, AGEAD 92, PUTHIYAPURAYIL HOUSE, POST CHOVVA, MUNDAYAD, KANNUR.(DIED) *ADDL.2ND PETITIONER: C. PRAKASAN, S/O. LATE ACHUTHAN, RESIDING AT PUTHIYAPURAYIL HOUSE, POST CHOVVA, MUNDAYAD, KANNUR. (* IMPLEADED AS PER ORDER ON I.A.6301/09 DT. 23.6.2009) BY ADV. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU RESPONDENT(S): --------------- 1. SREEDHARAN VAYALOMBRAN, S/O. RAMMUNNI, VELLAYANDAVIDE, P.O. MANANTHERI, KANNUR. 2. THE LABOUR COURT, KANNUR. ADV. SRI.P.M.PAREETH FOR R1 GOVERNMENT PLEADER MR. K.SANIL KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).17608/05 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- COPY OF THECLAIM PETITION FILED BY R1 EXT.P2:- COPY OF NOTICE DT:4.9.2000 ISSUED BY SECRETARY OF CANNANORE DISTRICT LORRY DRIVERS AND CLEANERS ASSOCIATION. EXT.P3:- COPY OF ORDER OF R2 DT.3.3.2005 ALLOWING THE CLAIM PETITION. EXT.P4:- COPY OF THE DEPOSITION OF R1 IN M.C.102/97 RESPONDENT'S EXHIBITS:- NIL okb //True Copy// P.A. to Judge C.K.ABDUL REHIM, J. ------------------------------ W.P.(C)No.17608 OF 2005 ------------------------------ Dated this the 23rd day of June, 2009 J U D G M E N T ---------------------- 1. The deceased original petitioner was the respondent in Claim Petition No.3/01 on the files of the Labour Court, Kannur, which was filed by the 1st respondent herein, under Section 33C(2) of the Industrial Disputes Act 1947 (for short the Act). Ext.P3 order passed by the Labour Court is under challenge in this writ petition. During pendency of this writ petition the original petitioner died and his legal representative was impleaded as additional 2nd petitioner. 2. The claim before the Labour Court was that, the 1st respondent herein was a workman employed as Driver under the deceased petitioner in his Lorries, from 1997 onwards, and on 14.7.2000 he was denied employment. The dispute raised against the denial of employment is pending conciliation before the District Labour Officer. During the period when he worked he was paid only a paltry amount of Rs.50/- as Batta, and he is entitled for getting fair wages as per the provisions in the Motor Transport Workers Payment of Fair Wages Act. Hence the 1st respondent claimed difference in wages for the period from April 1997 till 14.7.2002, under Section 33C(2) of the Act. W.P.(C).17608/05 2 3. The petition was defended before the Labour Court, disputing the claim that the 1st respondent was a workman as defined under Section 2(s) of the Act. He was only a 'Badali' worker who used to work only for 6 or 7 days in a month when other workers take leave. There was no employer-employee relationship and 1st respondent was working under various other Lorry owners also, are the contentions. The denial of employment was also disputed. 4. On the basis of the rival contentions the Labour Court raised the following issues for consideration: “(1) Whether the petitioner is a permanent employee under the respondent ? (2) Whether the petitioner is entitled to Rs.1,34,749/- as claimed in the petition ? “ After taking evidence the Labour Court found that the applicant is entitled to get fair wages as per the Motor Transport Workers Payment of Fair Wages Act, 1988. Accordingly the claim petition was allowed directing the petitioner herein to pay a sum of Rs.1,18,610/- with interest @ 6% per annum from the date of order till realisation. 5. One of the points raised by the Labour Court for consideration is whether the petitioner is a permanent employee under the respondent. In this context the learned counsel appearing for the petitioner contended that the Labour Court W.P.(C).17608/05 3 was lacking jurisdiction to decide such an issue in a proceedings under Section 33C(2) of the Act. In this regard he placed reliance on various decisions of this Court. In Fibre Foam(P) Ltd. Vs. Kannan Nair (1979 KLT 30) this Court observed as follows: “According to the petitioner the jurisdiction under Section 33C(2) can be exercised by the third respondent only when there is no dispute regarding the very status of the claimants and the opposite party. The expression “Where any workman is entitled to receive from the employer any money or any benefit” would indicate that S.33C(2) can be invoked only when the workman is legally entitled to receive any money or any benefit from the employer. If the very liability of the employer on the one part to pay and the right of the employee on the other to receive any compensation is in dispute, S.33C(2) cannot possibly be invoked.” Similar question was considered in a subsequent decision of this Court in Divisional Personnel Officer, S. Railway Vs. L. Kamalam and others reported in (1989 (58) FLR 427 (KER). In the said decision it is stated that if the workman is entitled to any benefit which is capable of being computed in terms of money, that can be computed and the workman given the money. The said calculation or computation should be on the basis of an existing right to money or benefit which had been previously adjudicated. If the right to the money or benefit which is sought to be computed is disputed, the Labour Court cannot adjudicate W.P.(C).17608/05 4 on that in a petition filed under Section 33C(2). The question as to whether a workman is entitled to the benefit is beyond the purview of the jurisdiction of the Labour Court under Section 33C(2) of the Industrial Disputes Act. 6. In yet another decision of this Court, in Indian Tourism Development Corporation Vs. Labour Court (1987 (1) KLT 29), it is observed that the power given under Section 33C(2) empowers the Labour Court to enable the workman to execute or implement his existing individual undisputed rights arising under an award or settlement. But where a dispute between the workman and the employer arises in regard to interpretation of the award or settlement, the said dispute can be resolved only under Section 36A. In a recent decision of a Division Bench of this Court in Radhakrishnan Nair Vs. Vadayar Service Co-operative Bank Ltd. (2004 (3) KLT SN 58 (Case No.81)) observed as follows:- “Since the question whether there is any employer-employee relationship between the petitioner and the society itself is disputed by the management and as Section 33C(2) being in the nature of execution proceedings, quantification of amount and the question whether minimum wage can be payable can be raised only when such dispute is decided between the parties. In the absence of any pre-existing right, the quantification of any amount under Section 33C (2) will not actually arise and the Labour Court has no jurisdiction in such circumstances”. W.P.(C).17608/05 5 7. The Hon'ble Supreme Court in Namor Ali Choudhury and others Vs. Central Inland Water Transport Corporation Ltd.(AIR 1978 SC 275) held that; “The expression “If any question arises as to the amount of money due” embraces within its ambit any one or more of the following kinds of disputes:- (1) Whether there is any settlement or award as alleged ? (2) Whether any workman is entitled to receive from the employer any money at all under any settlement or an award etc. ? (3) If so, what will be the rate or quantum of such amount ? (4) Whether the amount claimed is due or not ?” The said decision further says that if the right to get the money on the basis of the settlement or the award is not established, no amount of money will be due. 8. In view of the settled legal precedents as above, it is evident that in the case at hand there existed a clear dispute between the parties with respect to their employer-employee relationship or rather with respect to entitlement of any quantified or quantifiable amount due from the employer. It could not be said that there is any amount of money due which is undisputed and is capable of being computed. Therefore on the basis of the issue No.1 framed by the Labour Court itself, it is clear and evident that the claim raised by 1st respondent was not one coming within the ambit of Section 33C(2). The Labour W.P.(C).17608/05 6 Court would not have ventured in exercising jurisdiction for resolving such a dispute under Section 33C(2) of the Act. 9. Learned counsel for 1st respondent contended that the petitioner is estopped from raising the question regarding jurisdiction of the Labour Court in this writ petition, because maintainability of the claim petition was not disputed before the Labour Court itself. In support he had cited decision of the Hon'ble Supreme Court in Sohan Singh Vs. General Manager Ordnance Factory, Khamaria, Jabalpur (AIR 1981 (SC) 1862). In the said case in an appeal by certificate under Article 133(1)(a) of the Constitution of India, while setting aside the order of the High Court of Madhyapradesh, the Hon'ble Supreme Court observed that on the facts of the said case the view taken by the High Court with respect to maintainability of a petition under Section 33C(2) before the Labour Court was not correct, because the jurisdiction of the Labour Court was not challenged by the respondent in that court. But on the facts of this case it is evident that the employer had disputed the employer-employee relationship and the Labour Court has raised an issue on that point. It is evident from the contention raised by the petitioner before that court itself, that he was questioning maintainability of the petition under Section 33C(2). Further it is settled law W.P.(C).17608/05 7 that an order passed without jurisdiction is a nullity in the eye of law. Therefore interference of this Court is perfectly justified, and Ext.P3 order suffers from lack of jurisdiction. 10. In the result Ext.P3 order of the 2nd respondent Labour Court in CP.No:3/2001 is hereby quashed. But it is made clear that this will not in any way preclude the 1st respondent from pursuing his dispute against the alleged denial of employment or will affect any of his rights or claims against the petitioner if available under any other statute. The writ petition is allowed to the above extent. C.K.ABDUL REHIM, JUDGE. okb