1 W.P.No.4111.10 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4111 OF 2010 Indra Singh Jatar Singh ... Petitioner v/s M/s.Enercon (India) Ltd. & ors. ... Respondents Mr.A.V.Bukhari i/by Mr.Burhan Bukhari for the petitioner. Mr.R.V.Paranjpe for respondent Nos.1 to 3. CORAM: SMT.NISHITA MHATRE, J. DATED: 26TH JULY, 2010 P.C.: 1. Rule, returnable forthwith by consent. 2. The petition has been preferred against the order of the Labour Court dated 9.6.2009. By this order, the claim of the petitioner filed under Section 33-C(2) of the Industrial Disputes Act, 1947 (in short, “the I.D.Act”) has been dismissed. The petitioner claimed overtime wages and wages in lieu of privilege leave and weekly off days 2 W.P.No.4111.10 in this application. 3. The Labour Court framed issues on 7.7.2008. Evidence was accordingly led by the petitioner of his witness. The respondents did not examine any witness. Thereafter on 17.11.2008, after the petitioner was cross-examined, a new issue was framed by the Labour Court as to whether the petitioner was a workman under Section 2(s) of the I.D. Act. 4. The Labour Court while passing the impugned order dated 9.6.2009 held that the petitioner was not a “workman” as he was designated as a senior cook/guest house attendant. The Labour Court also concluded that junior cooks used to assist him and, therefore, this indicated that he was supervising the duties of his assistants and thus he fell within the exclusive clause of Section 2(s). The Labour Court concluded therefore that the petitioner was not a “workman”. 5. In my opinion, this conclusion drawn by the Labour Court appears to be baseless. Firstly, the Labour Court ought not to have framed a new issue after the evidence of the petitioner was closed. Parties must have notice of the issues on which they are expected to lead evidence and the facts that they required to prove. Moreover, the Labour 3 W.P.No.4111.10 Court should have considered the fact that the petitioner’s evidence was not rebutted by the respondents. His cross- examination also does not indicate that he has wavered from his deposition in his examination-in-chief that he was a workman. He has described the nature of work that he was performing and, therefore, the finding of the Labour Court on this issue is erroneous; especially since the issue as to whether the petitioner is a workman, has been framed after his evidence was closed. Besides, it is now well settled that it is for the employer who disputes the status of the applicant in an application under Section 33-C(2) of the I. D. Act to establish that the applicant is not a workman. This has not been done by the employer in the present case. Merely because the petitioner admitted that he was a senior cook and that he had others to assist him, it would not mean that he was not a workman. The petitioner was performing the work himself and was also assisted by others. This admission cannot possibly lead to the inference that he was in the managerial, administrative or supervisory cadre. Therefore, the finding of the Labour Court that the applicant is not a workman is incorrect. 6. The Labour Court has then considered the merits of the case, assuming that the petitioner is a workman. The Labour 4 W.P.No.4111.10 Court has dismissed the claim only because the employer has denied that the applicant is entitled to any amount. According to the Labour Court, once there is a dispute regarding the entitlement, its jurisdiction is ousted. This finding of the Labour Court is incorrect. The jurisdiction of the Labour Court under Section 33-C(2) cannot be ousted merely by the employer making a bald statement that he does not concede that amounts are payable to the workman. Further more, the Labour Court has not given any other reason besides the aforesaid one for denying the petitioner any relief. 7. In the case of Mahalaxmi Co-op. Housing Society Ltd. v/s Dilip Singh Parocha & ors., reported in 2007 I C.L.R. 475, the Division Bench of this Court has clearly delineated the circumstances in which the jurisdiction of the Labour Court under Section 33-C(2) can be invoked. In para 40, the Division Bench has culled out the propositions of law which emerge from various judgments of the Supreme Court dealing with the judgment of the Labour Court to entertain and decide an application under Section 33-C(2). The Labour Court ought to have referred to these propositions of law before denying the claim of the workman. 5 W.P.No.4111.10 8. The contention of the learned advocate for the respondents that in view of the judgment in Glaxo Smith Kline Pharmaceuticals Ltd. v/s Abhay Raj Jain & anr., reported in 2008 (6) Bom.C.R. 602, the application itself was not maintainable before the Labour Court in Mumbai is unacceptable. This was not an issue framed by the Labour Court. In any event, the petitioner was issued letter of appointment in Mumbai and was employed in Mumbai and it is only on some occasions that he was required to work for a few days at various sites at which the work of the Company was in progress. In these circumstances, the contention that the Labour Court had no jurisdiction is unsustainable. 9. Rule made absolute. 10. The application under Section 33-C(2) is remanded to the Labour Court only for the purpose of computation of the amounts due and payable to the petitioner. 11. Parties are free to lead evidence on this issue. ..... 6 W.P.No.4111.10 7 W.P.No.4111.10