KMJ Public School and The Principal, KMJ Public School v. C. Mance and Others (Writ Appeal)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **WEDNESDAY, THE 09TH DAY OF SEPTEMBER 2020/18TH BHADRA, 1942** ## **WA.No.769 OF 2020** **AGAINST THE JUDGMENT IN WP(C) 14087/2019(I) OF HIGH COURT OF KERALA DATED 5/5/2020** ## **APPELLANTS/RESPONDENTS 1 AND 2** - **1 KMJ PUBLIC SCHOOL REPRESENTED BY ITS MANAGER, KANJIRAMATTOM MOSQUE, KANJIRAMATTOM ERNAKULAM DISTRICT - 682315, .** **2 THE PRINCIPAL, KMJ PUBLIC SCHOOL, KANJIRAMATTOM MOSQUE, KANJIRAMATTOM , ERNAKULAM DISTRICT.682 315.** **BY ADVS.** **SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.AVINASH P RAVEENDRAN SMT.ARYA RAGHUNATH SMT.VAISAKHI V. SMT.SNEHA SUKUMARAN MULLAKKAL** ## **RESPONDENTS/PETITIONERS & RESPONDENT NO.3:** **1 C.M.ANCE AGED 39 YEARS S/O.MOHAMMED, CHULIKKOTTIL HOUSE, KULAYETTIKKARA, MARITHAZHAM P.O., KANJIRAMATTOM- 682315, ERNAKULAM DISTRICT.** WA No.769/2020 -:2:- - **2 JAMALUDHEEN.A.K., AGED 61 YEARS S/O.KASIM, THIRANDITHOTTIL, KULAYETTIKKARA P.O., KANJIRAMATTOM- 682315.** - **3 MUMTHAS BABU, AGED 41 YEARS W/O.BABU, EDAMPADATH HOUSE, KANJIRAMATTOM P.O682315, ERNAKULAM DISTRICT.** - **4 LALITHA A.K., AGED 45 YEARS W/O.KRISHNANKUTTY, MANAKKADU VEEDU, KANJIRAMATTOM P.O- 682315, ERNAKULAM DISTRICT.** - **5 LABOUR COURT, ERNAKULAM- 682031.** **R1 TO R4 BY SRI. T.M. MOHAMMED YOUSEFF-SR.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18-082020, THE COURT ON 09-09-2020 DELIVERED THE FOLLOWING:** WA No.769/2020 -:3:- **==> picture [66 x 12] intentionally omitted <==** ## **J U D G M E N T** Dated this the 9[th] day of September, 2020 ## _**Shaffique, J.**_ Appeal is filed by respondents 1 and 2 in WP(C) No. 14087/2019. By the impugned judgment, the learned Single Judge allowed the writ petition setting aside an order passed by the Labour Court, Ernakulam in Claim Petition No.49/2014 and remitting the matter back to the Labour Court to consider the claim petition afresh. Claim petition No.49/2014 was filed by the writ petitioners u/s 33C(2) of the Industrial Disputes Act. They claimed payment of salary as per the provisions of Minimum Wages Act. The concerned notification fixing the minimum wages was produced as Ext.P18. 2. The appellants herein who were appearing for the Management took up a contention that writ petitioners were not regular employees whereas they were working on part-time basis in the school managed by them and therefore they were not entitled to claim minimum wages as stated in Ext.P18, whereas WA No.769/2020 -:4:- they have been paid the wages which is due to them in accordance with the contract between the parties. The writ petitioners however took up a contention that they were regular employees of the Institution and they filed a reply affidavit denying the contention urged by the management by contending that they were working from morning to evening. The petitioners have also adduced evidence before the Labour Court. However, the Labour Court by its order dated 20/2/2019 formed an opinion that Section 33 C(2) does not envisage an enquiry as to whether the writ petitioners were entitled for the minimum wages as claimed by them especially on account of the dispute that the writ petitioners have denied the liability to pay such minimum wages. It was held that in the absence of any pre-existing right or admitted liability of the employer, no determination can be made under S.33 C(2) of the I.D. Act. 3. The learned Single Judge however placed reliance on the judgment of a learned Single Judge of this Court in _**G4S Security Services (India) Ltd. v. Satheeshkumar K and Others**_ [2010 (1) KLT 463] wherein it was held that while considering an application u/s 33 C(2), it is open for the Labour WA No.769/2020 -:5:- Court/Industrial Tribunal to consider whether the claim for minimum wages can be granted or not. 4. Learned counsel for the appellants though initially raised a contention that schools had been excluded from the purview of Industrial Disputes Act, in so far as the proposed amendment has not come into force, such a contention does not survive. However, it is argued that the Minimum Wages Act, 1948 prescribes a mode for fixation of minimum wages, in which event, an application u/s 33 C(2) is not maintainable. Learned counsel submits that whether the petitioners were entitled for being paid the full minimum wages on account of the fact that they were part-time employees is a matter which cannot be adjudicated by the Labour Court while considering an application u/s 33 C(2). Smt.Vaheeda Babu, learned counsel for the appellants also placed reliance on the judgment of the Apex Court in _**Krishnan and Another v. Special Officer, Vellore Co.op. S.M and Another**_ [(2008) 7 SCC 22]. 5. On the other hand, learned senior counsel Sri.T.M.Mohammed Youseff appearing on behalf of the workmen would contend that the factual materials available in the case by WA No.769/2020 -:6:- itself would indicate that writ petitioners were workmen engaged by the management. It is pointed out that as per the bye-law of CBSE, the cadre strength of non teaching staff has been specifically mentioned which includes driver, sweeper etc. Their working hours are also specifically mentioned. That apart, the attendance registers produced in the case will belie the fact that they were only part-time workers. It is argued that consideration of the question as to whether the workmen were part-time or fulltime is an ancillary issue which could be decided by the Labour Court, while adjudicating on an application under Section 33 C(2) of the I.D. Act. Following are the judgments relied upon by the learned counsel for the respondents. (i) _**Bombay Gas Co. Ltd v. Gopal Bhiva**_ [AIR 1964 SC 752] (ii) _**Chief Mining Engineer, M/s East India Coal Co. Ltd Bararee Colliery Dhanbad v. Rameshwar and Others**_ (AIR 1968 SC 218) (iii) _**Hindi Prachar Press v. State of Kerala and Others**_ (1982 KLT 285) (iv) _**Vimal Printers v. Omana**_ (1982 KLT 923) WA No.769/2020 ## -:7:- (v) _**Municipal Corporation of Delhi v. Ganesh Razak and Another**_ [(1995) 1 SCC 235] (vi) _**Deepak Photos v. State of Kerala**_ (2000 (3) KLT 511) (vii) _**M.A.Haridas and Others v. Labour Court and Others**_ (2006 (2) KLT 641) ## (viii) _**G4S Security Services (India) Pvt.Ltd**_ (supra) 6. This is a case in which the appellants had disputed that the workmen were employed on a regular basis. According to them, they were working only for two or three hours a day. The question is whether while considering an application under S.33 C(2) of the I.D. Act, the Labour Court can consider the question whether the workmen are employed on a regular basis or on a part-time hourly basis. S.33C (2) of the I.D. Act reads as under: ## _“_ _**33-C:- Recovery of money due from an employer** (1) xx_ _(2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government; within a period not exceeding three months:_ _Provided that where the presiding officer of a Labour Court_ WA No.769/2020 -:8:- _considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.”_ The Apex Court held that the above provision is in the nature of execution proceedings which presupposes some adjudication leading to the determination of a right which has to be enforced. 7. In _**Krishnan's case**_ (supra), it was held that when the management had disputed that the workmen was employed in his establishment, and prima facie it would appear that they were Managers, it would be beyond the jurisdiction of a Labour Court to determine their status in a proceedings u/s 33(C)(2) of the I.D. Act. Reference was also made by the Apex Court to the judgment in _**State of U.P and another v. Brijpal Singh**_ [(2005) 8 SCC 58]. Paragraph 10 of the judgment in _**Brijpal Singh's case**_ (supra) was extracted, which reads as under:- _“_ _**10.** It is well settled that the workman can proceed under Section 33-C(2) only after the Tribunal has adjudicated on a complaint under Section 33-A or on a reference under Section 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman. This Court in the case of Punjab Beverages (P) Ltd. v. Suresh Chand [(1978) 2 SCC 144 :] held that a proceeding under Section 33-C(2) is a proceeding in the nature of execution proceeding in which the Labour Court calculates the amount of_ WA No.769/2020 ## -:9:- _money due to a workman from the employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to compute the benefit in terms of money. Proceeding further, this Court held that the right to the money which is sought to be calculated or to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between the industrial workman, and his employer”._ 8. A similar view was taken by a learned Single Judge of this Court in _**M.Karunakaran v. Grassim Industries Ltd.**_ [1997 (1) KLJ 789]. While interpreting S.33C(2), it was held that the Labour Court is not authorised to decide the question of entitlement of the petitioner for the arrears of salary claimed by him before approaching the Labour Court u/s 33 C(2). There must be an adjudication or decision by a competent authority on the question of entitlement for the arrears of salary claimed by the petitioner. 9. As far as entitlement of minimum wages is concerned, when there is no dispute raised by the management with reference to the employment, it is well settled that the entitlement of minimum wages could be considered in a petition WA No.769/2020 -:10:- u/s 33C(2) of the I.D. Act. [ _**Managanese Ore (India) Ltd v. Chandi Lal Saha**_ - (AIR 1991 SC 520)], _**Deepak**_ (supra), _**Hindi Prachar Press**_ (supra) and _**G4S Security Services (India) Pvt. Ltd**_ (supra)]. 10. The narrow distinction that has been raised in the present case is that the management does not admit that the workmen are employed on a regular basis whereas according to them, they were only part-time drivers and sweepers. The parttime drivers were working for three hours a day and sweepers two hours a day. Therefore, according to them, whatever is paid as monthly salary was sufficient for the work that they have been doing. The jurisdiction that could be exercised by a Labour Court under Section 33 C (2) is well settled. As already mentioned, if it is just a claim for minimum wages by a regular employee, there need not be any adjudication at all. But the question is, when a claim for minimum wages is made by part-time employees, whether such a claim could be adjudicated by the Labour Court? It is settled law and as held by the Apex Court in _**Central Bank of India v. P.S.Rajagopalan**_ (AIR 1964 SC 743) that Labour Court in a proceeding under S.33C (2) is exercising jurisdiction WA No.769/2020 -:11:- analogous to execution proceedings and while doing so, Labour Court would be competent to interpret the award on which the claim is based. In _**Chief Mining Engineer's case**_ (supra), the Apex Court further considered the jurisdictional aspects in an application under Section 33C(2). It was held that when the Labour Court is called upon to compute in terms of money, the benefit claimed by a workman, it stands in the position of an executing Court and therefore, it is possible to interpret the award of settlement when such benefit is claimed under such award or settlement. In _**Municipal Corporation of Delhi**_ (supra), a 3 Judge Bench of the Apex Court had occasion to consider the entire gamut of the jurisdiction conferred on a Labour Court under Section 33C(2). The question considered was whether daily rated/casual workers of the appellant Municipal Corporation of Delhi could claim the same pay as the regular employees on the principle “equal pay for equal work”, in an application u/s 33 C (2). After referring to judgments in _**Central Bank of India's case**_ (supra), _**Bombay Gas Company Ltd.**_ (supra), _**Chief Mining Engineer, M/s East India Coal Company Ltd.,**_ (supra) and _**Central Inland Water Transport**_ WA No.769/2020 -:12:- _**Corporation Ltd. v. Workmen**_ [(1974) 4 SCC 696], it was held that the claim of the workmen who were all daily rated/casual workers to be paid wages at the same rate as the regular workers had not been earlier settled by adjudication or recognition by the employer without which the stage for computation of that benefit could not reach. In so far as the principle of equal pay for equal work was disputed, without an adjudication of the said dispute, there could be no occasion for computation of the benefit on that basis to attract S.33C(2). 11. In the case on hand, contention of the appellants is that when the workmen are employed only for a few hours, their minimum wages, if any, is to be computed by an adjudicatory process in terms of S.20 of the Minimum Wages Act, 1948 or there has to be an adjudication by the Labour Court that the workmen are regular employees of the establishment concerned. 12. It is settled law that the jurisdiction vested in the Labour Court under S.33C(2) is akin to that of an execution court. But the execution court cannot adjudicate on the question as to whether the workmen were regularly employed or they were working only for a few hours. The contention of the learned WA No.769/2020 -:13:- counsel for workmen is that such an adjudication is ancillary to an adjudication in terms of S.33C(2). Labour Court can exercise the power under S.33C(2) when the workmen is entitled to receive from the employer any money, or if any question arises as to the amount of money due. Apparently, when the disputed question is whether the workmen were full time regular employees or were working only for a few hours, the Labour Court cannot adjudicate on such issues. In fact, in _**Municipal Corporation of Delhi**_ (supra), when piece rated workers claimed the pay of regular employees on the ground that they were doing the very same work, Apex Court held that such an adjudication cannot be undertaken by the Labour Court while exercising jurisdiction under Section 33C(2) of the ID Act. In the case on hand, Ext.P18 reflects monthly wages to be paid to regular employees, and their entitlement for the same would arise only if they were working as regular employees and not on part time basis. Under such circumstances, the Labour court was justified in dismissing the claim petition. Consequently, the judgment of the learned single Judge is liable to be set aside. In the result, the appeal is allowed setting aside the WA No.769/2020 -:14:- judgment of the learned single judge and the writ petition stands dismissed. However, it is made clear that the workmen shall be entitled to approach the proper forum to claim their legal entitlement. **Sd/A.M.SHAFFIQUE JUDGE Sd/GOPINATH P.** Rp True Copy **JUDGE** PS to Judge