1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7568 OF 2008 The Secretary, Balasaheb Vishwanath Bhogade, Shri Siddheshwar Cancer Hospital and Research Center and others ..Petitioners. Vs. Santosh Gangadhar Sakhare ..Respondent. .... Mr. R.S. Alange for the Petitioners. None for the Respondent. .... CORAM: DR. D.Y. CHANDRACHUD, J. 19th November, 2008. P.C. : 1. The Respondent was employed as a medical social worker with the Petitioners who conduct a cancer hospital at Solapur. On 30th September, 2004 the Respondent was directed to proceed on leave with effect from 1st October, 2004 on the allegation that he had indulged in serious acts of misconduct. The Respondent accordingly proceeded on leave. The Respondent filed an application under Section 33-C(2) of the Industrial Disputes Act, 1947 for the recovery of his wages for the period between October 2004 till April 2005. This 2 was the period during which the Respondent was told by the employer to proceed on leave. Admittedly, the relationship of employer and employee continued during the aforesaid period. The Court has been informed that the services of the Respondent were terminated on 28th April, 2005. The termination forms the subject matter of a complaint of unfair labour practices viz. Complaint (ULP) 34 of 2005 which is pending. In that complaint a preliminary issue was framed as regards whether the Respondent was a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and hence an employee within the meaning of Section 3(5) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The issue was answered in the affirmative on 22nd June, 2006 by the Labour Court. The Petitioner has filed a revision before the Industrial Court which is pending. 2. In these proceedings the order of the Labour Court allowing the claim under Section 33-C(2) of the Industrial Disputes Act, 1947 has been questioned. Admittedly, the Respondent was an employee of the Petitioner for the period during which the claim under Section 3 33-C(2) was preferred. The Respondent was directed to proceed on leave by the Petitioner. Consequently there can be no dispute about the position that so long as the relationship of employer and employee continued to hold the field, the Petitioner was liable to pay wages to the Respondent. Thus, the conclusion of the Labour Court insofar as it allows the application under Section 33-C(2) and directs the Petitioner to pay an amount of Rs.29,960/- together with interest cannot be faulted. The Petitioner has no justification to withhold the payment of wages. The Respondent has a pre-existing right to receive his wages in pursuance of the contract of employment which continued to subsist at the material time. 3. However, it has been urged that the Labour Court while deciding an application under Section 33-C(2) had no jurisdiction to decide the question as to whether the Respondent is a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. Insofar as this submission is concerned, the Petitioner is supported by a judgment of a Learned Single Judge of this Court (Hon'ble Mr. Justice R.M. S. Khandeparkar) in Central Group v. 4 Motiram S. Thakare1. The learned Single Judge has held that while deciding an application under Section 33-C(2) the Labour Court cannot deal with an issue relating to the status of an applicant as a workman since such an issue is not an incidental issue, but relates to a jurisdictional fact. The Learned Single Judge held that at the same time the jurisdiction of the Labour Court under Section 33-C(2) would not be ousted merely because the status is disputed. The Labour Court had to determine in every case as to whether on the basis of material placed before it, there was either no dispute or where there was an admission in that regard or an adjudication on that issue by the competent Court and yet it was sought to be disputed. In view of the judgment of the Learned Single Judge, there is merit in the submission that the Labour Court cannot in the course of deciding an application under Section 33-C(2) embark on an adjudication on the question as to whether the applicant is a workman under Section 33- C(2). However, insofar as the facts of the present case are concerned, it is evident that by the time the Labour Court decided upon the application under Section 33-C(2) on 15th July, 2008 there was a determination in the course of the complaint of unfair labour 1 2006(1) Mh. L. J. 422. 5 practices filed by the workman against his termination, of the issue as to whether he is a workman. As already noted earlier, that issue has been decided in favour of the workman by an order dated 22nd June, 2006 of the Labour Court. The issue has not attained finality since a revision application is pending. Therefore for the purposes of the disposal of the application under Section 33-C(2), the Labour Court was entitled to proceed on the basis that the Respondent has been held to be a workman in the complaint of unfair labour practices and that determination unless set aside by a higher forum still continues to hold the field. In the circumstances, particularly having regard to the fact that the impugned order directs the Petitioner to pay to the Respondent workman his earned wages for the period during which the contract of employment continues to subsist, no interference is warranted under Article 226 of the Constitution. However, it would be necessary to clarify that the dismissal of this Petition shall not stand in the way of an adjudication of the merits by the Industrial Court in the pending revision (Revision No.109 of 2006) of the question as to whether the Respondent is a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and Section 3(5) of the 6 Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. Subject to the aforesaid clarification, the Petition shall stand dismissed. *****