Kairali Heritage vs A. Balakrishnan and Anr. and Labour Court, Kannur

WP(C) NO. 8559 OF 2011 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 10[TH] DAY OF JANUARY 2023 / 20TH POUSHA, 1944 WP(C) NO. 8559 OF 2011** **AGAINST THE ORDER/JUDGMENTCP 1/2010 OF LABOUR COURT, KANNUR PETITIONER/S:** KAIRALI HERITAGE P.O.NARATH, KANNUR DISTRICT-670 603,, REPRESENTED BY ITS DIRECTOR,, MR.ANANTHAKRISHNAN. BY ADVS. SRI.E.K.NANDAKUMAR SRI.P.BENNY THOMAS SRI.P.GOPINATH SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI ## **RESPONDENT/S:** 1 SRI.A.BALAKRISHNAN AND ANOTHER THYKANDY, PAYYAMBALAM, KANNUR-670 001. 2 THE LABOUR COURT KANNUR-670 002. BY ADV SRI.KISHOR B. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 8559 OF 2011 2 **P.V.KUNHIKRISHNAN, J --------------------------------------W.P.(C) No. 8559 of 2011 -------------------------------------Dated this the 10[th] day of January, 2023** ## **JUDGMENT** The above writ petition is filed challenging Ext.P5 award passed by the Labour Court, Kannur in claim petition No.1/2010. 2. The 1[st] respondent herein filed an application under Sec.33C of the Industrial Dispute Act. The short facts narrated in the claim petition are like this: The 1[st] respondent was a workman of the petitioner. According to him, he joined the service on 8.7.2005 and continued till 3.1.2008. It is his further case that he was denied employment by the Management. He had given a written request to the Management on 5.3.2006 to keep his wages and pay the same in lumpsum on demand as the petitioner was a bachelor and living alone. It is the case of the 1[st] respondent that the petitioner agreed the same. But the 1[st] respondent was not paid wages after March 2006 is the case. He demanded entire wages in October 2007, but the wages was not WP(C) NO. 8559 OF 2011 3 paid. Hence, the claim petition is filed for the arrears of wages amounting to Rs. 77,350/- for the period from March 06 to 3.1.2008. 3. The petitioner Management filed a counter statement contending that the petition is not maintainable. It is contended that the 1[st] respondent was the personal assistant of the then licencee of the Bar, Sri.P.N.Sasikumar. He was one of the Director of the Company, Cannanore Country Club and Resorts Pvt. Ltd. upto February 2007. It is also specifically contended that there was no employer—employee relationship between the petitioner and the 1[st] respondent. 4. To substantiate the case, PW1 and RW1 were examined before the Labour Court. Exts.P1 to P7 were marked and Exts.R1 to R6 were marked on the side of the petitioner. 5. After going through the evidence and the documents, the Labour Court found that the 1[st] respondent is entitled to recover the salary as prayed for by him for the period from March, 2006 to 3.1.2008 amounting to Rs.77,350/-. Hence, the claim petition was allowed. Aggrieved by the same, this writ petition is filed. 6. Heard the learned counsel for the petitioner and the WP(C) NO. 8559 OF 2011 4 learned Government Pleader. 7. The short point raised by the petitioner is that there is no employer-employee relationship between the petitioner and the 1[st] respondent. When the employer-employee relationship is disputed, the Labour Court has no jurisdiction to adjudicate an application under Sec.33C(2) of the Industrial Disputes Act. The petitioner relied the judgment of the Apex Court in **Bombay Chemical Industries v. Dy. Labour Commissioner and anr** . [2022 (5) SCC 629]. 8. This Court considered the contentions of the petitioner. I think there is some force in the argument of the petitioner. A perusal of paragraphs Nos. 7 and 8 of the award will show that the petitioner disputed the employer-employee relationship. But, the Tribunal found that it is a matter ancillary to the facts to be determined in an application under Sec.33C(2) of the Industrial Disputes Act. It will be better to extract paragraph 8 of Ext.P5 award. “8. When the respondent in an application under Sec.33C(2) of the Industrial Disputes Act just denies the master and servant relationship that by itself will not take away the jurisdiction of the Court to determine whether there is any such WP(C) NO. 8559 OF 2011 5 relationship existing between the petitioner and the respondent. It is a matter ancillary to the facts to be determined in an application under Sec.33C(2) of the Industrial Disputes Act. In such circumstances, even though the status of master and servant is denied that is a fact that can be enquired by this Court in the application and on that reason the petition cannot be held to be not maintainable. I, therefore, find that the petition is maintainable.” 9. I am not in a position to accept the above stand of the Labour Court, especially in the light of the dictum laid down by the Apex Court in **Bombay Chemicals Industries's** case (supra). In **Bombay Chemicals Industries's** case (supra), the Apex Court considered a similar situation and observed like this : “7. At the outset it is required to be noted that respondent No.2 herein filed an application before the Labour Court under S.33(C)(2) of the Industrial Disputes Act, demanding difference of wages from 01.04.2006 to 31.03.2012. It was thus the case on behalf of respondent No.2 that he was working with the appellant as a salesman. However, the appellant had taken a categorical stand that respondent No.2 was never engaged by the appellant. It was specifically the case on behalf of the appellant that respondent No.2 had never worked in the establishment in the post of salesman. Therefore, once there was a serious dispute that respondent No.2 had worked as an employee of the appellant and there was a very serious dispute WP(C) NO. 8559 OF 2011 6 raised by the appellant that respondent No.2 was not in employment as a salesman as claimed by respondent No.2, thereafter, it was not open for the Labour Court to entertain disputed questions and adjudicate upon the employer - employee relationship between the appellant and respondent No.2. 8. As per the settled proposition of law, in an application under S.33(C)(2) of the Industrial Disputes Act, the Labour Court has no jurisdiction and cannot adjudicate dispute of entitlement or the basis of the claim of workmen. It can only interpret the award or settlement on which the claim is based. As held by this Court in the case of Ganesh Razak and Another (supra), the labour court's jurisdiction under S.33(C)(2) of the Industrial Disputes Act is like that of an executing court. As per the settled proposition of law without prior adjudication or recognition of the disputed claim of the workmen, proceedings for computation of the arrears of wages and / or difference of wages claimed by the workmen shall not be maintainable under S.33(C)(2) of the Industrial Disputes Act. 9. In the case of Kankuben (supra), it is observed and held that whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under S.33 - C (2) of the ID Act. It is further observed that the benefit sought to be enforced under S.33 - C (2) of the ID Act is necessarily a pre - existing benefit or one flowing from a pre - existing right. The difference between a pre - existing right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under S.33 - C (2) of the ID Act while the latter does not. WP(C) NO. 8559 OF 2011 7 10. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, when there was no prior adjudication on the issue whether respondent No.2 herein was in employment as a salesman as claimed by respondent No.2 herein and there was a serious dispute raised that respondent No.2 was never in employment as a salesman and the documents relied upon by respondent No.2 were seriously disputed by the appellant and it was the case on behalf of the appellant that those documents are forged and / or false, thereafter the Labour Court ought not to have proceeded further with the application under S.33(C)(2) of the Industrial Disputes Act. The Labour Court ought to have relegated respondent No.2 to initiate appropriate proceedings by way of reference and get his right crystalized and / or adjudicate upon. 11. Therefore, the order passed by the Labour Court was beyond the jurisdiction conferred under S.33(C)(2) of the Industrial Disputes Act. The High Court has not appreciated the aforesaid facts and has confirmed the same without adverting to the scope and ambit of the jurisdiction of the Labour Court under S.33(C)(2) of the Industrial Disputes Act.” 10. In the light of the above dictum laid down by the Apex Court, I am of the considered opinion that Ext.P5 will not stand because, the petitioner raised a specific contention regarding the employer-employee relationship between the petitioner and the 1[st] respondent. In such circumstances, according to me, the Labour Court erred in adjudicating the claim petition. But I WP(C) NO. 8559 OF 2011 8 make it clear that the 1[st] respondent is free to agitate his claim regarding the employer-employee relationship before the appropriate forum in accordance to law. Therefore, Ext.P5 can be set aside, leaving open all other contentions of the 1[st] respondent. Therefore, this writ petition is allowed in the following manner : - 1) Ext.P5 is set aside. - 2) I make it clear that the 1[st] respondent is free to agitate his claim regarding the employer-employee relationship before the appropriate forum in accordance to law. ## **SD/-** **P.V.KUNHIKRISHNAN JUDGE** SKS WP(C) NO. 8559 OF 2011 9 ## APPENDIX PETITIONER'S EXHIBITS : EXT.P1 TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT INSPECTOR ABKARI WORKERS WELFARE FUND DATED 1.8.2007 EXT.P2 TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT ABKARI WORKERS WELFARE FUND INSPECTOR DATED 25.4.2008 EXT.P3 TRUE COPY OF THE CLAIM PETITION DATED 16.1.2009 FILED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT EXT.P4 TRUE COPY OF THE COUNTER STATEMENT DATED 21.4.2010 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXT.P5 TRUE COPY OF THE ORDER DATED 25.11.2010 IN CP NO. 1 OF 2010 PASSED BY THE 2ND RESPONDENT RESPONDENT'S EXHIBITS : NIL