Union of India (UOI) vs Presiding Officer, Central Government Labour Court

R.M. Datta, J.—This Rule was directed against (1) the Pre siding Officer, Central Government Labour Court at Calcutta, (2) the said Labour Court and (3) the Respondent No. 3 Jitendra Mohan Biswas who had been an employee under the South Eastern Railway until he resigned on January 19, 1971, by his letter of the same date whereby he prayed for the acceptance of his resignation with immediate effect. In compliance with the said request the South Eastern Railway Administration accepted the said resignation.

By his letter dated January 13, 1975, Biswas applied u/s 33C(2) of the Industrial Disputes Act, 1947 and claimed diverse sums and benefits on account of his arrears of remuneration and other dues.

It is contended on behalf of the Petitioner Union of India representing the South Eastern Railway that the admitted position being that Biswas had voluntarily resigned from his service he had also ceased to be a workman within the meaning of the Industrial Disputes Act, 1947, with effect from January 19, 1971 and as such, he was not entitled to pursue this special remedy provided under Sub-section (2) of Section 33C of the Industrial Disputes Act, 1947. Under the circumstances, it is urged that the said Labour Court had no jurisdiction under the Industrial Disputes Act, 1947, to entertain the said application.

On the basis thereof an application was filed by the South Eastern Railway before the said Labour Court for the decision of the preliminary question of law as to the jurisdiction of the said Labour Court to proceed with the said purported application of Biswas. The said Labour Court by its order dated August 7, 1975, rejected the preliminary objection and held that the said application by Biswas u/s 33C(2) of the Industrial Disputes Act, 1947, was maintainable and gave notice to proceed with the hearing of the said case.

It was against this decision that the Union of India made the present application and obtained the Rule nisi.

The only short point is whether the Respondent No. 3 Biswas was a workman even after resignation of his post so as to entitle him to take recourse to the summary procedure as provided u/s 33C(2) of the Industrial Disputes Act, 1947, for the recovery of the money due to him. The relevant portion of the provisions of Section 33C reads as follows:

33C. Recovery of money due from an employer. Where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter V-A, the workman himself or any other person authorised by him in writing in this behalf, or in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate-Government for the recovery of the money due to him and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue:

Provided that every such application shall be made within one year from the date on which the money became due to the workman from employer:

Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the Applicant had sufficient cause for not making the application within the said period.

(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 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.

(3) ...

(4) ...

(5) ...

Explanation....

Section 2, Clause (s) of the said Act defines a workman as follows:

In this Act, unless there is anything repugnant in the subject or context,

(s) Workman means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of that dispute or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any person--

(i) who is subject to the Army Act, XLVI of 1950, or the Air Force Act, XLV of 1950, or the Navy (Discipline) Act, XXXIV of 1934, or

(ii) who is employed in the Police Service or as an officer or other employee of a prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensum or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

Mr. N. Sanyal, appearing on behalf of the Petitioner, contends that such an application u/s 33C can be made only by a workman, i.e. a person who is still under the employment or by the persons specifically mentioned in the said provisions and in the manner provided thereunder. It is contended that to be a workman one must be a person who is employed in any industry or he might be a person who must be dismissed from service or whose service has been discharged or who has been retrenched as provided by the said definition clause.

To my mind, the argument advanced by Mr. Sanyal does not lead to any logical conclusion. The section itself provides that in some cases the workman himself may apply and in other cases even some person authorised by him in writing can also apply. Furthermore, in the case of death of the workman his assignee or heirs may also apply. The definition clause makes it specifically clear that the expression ''workman'' would include any person who has been dismissed from his employment, whose service under the employer has been discharged or who has been retrenched. To my mind, this definition of workman is by no means exhaustive and it contemplates various other situations under which a person can apply to recover his claim for wages, gratuity, pension etc. Take for example, the case of retirement which has not been specifically mentioned in the definition clause. Even though it is not provided under the said definition of workman, to my mind, a person who has retired can also apply under this procedure. Similarly, the case of resignation, though not specifically provided in the definition section, such a person can also apply u/s 33C for recovery of money due from the employer. In fact, Section 33C(1) itself provider that even persons who has authority from the workman or who are heirs and legal representatives of the deceased workman can also apply.

It seems that the real emphasis should be put not on the persons who are entitled to apply but in respect of the recovery of the arrears of money due from the employer in respect of the period when he was so employed as a workman under the employer. If that condition is fulfilled, viz., that the recovery is for and in respect of the period when he was so employed and if the recovery relates to or arises out of his employment, when he was so employed, then an application would lie to the said Labour Court and in such case there will be no want of jurisdiction in respect of the said Labour Court if it would entertain, try and determine such a claim for recovery of money due from the employer.

This is a case of voluntary resignation. The employee has resigned. His resignation has been accepted by the employer. Even then the employee has still the right of action against the employer for his unpaid wages and other emoluments; because he might have tendered his resignation so far as his post was concerned but that does not mean that he has relinquished or abandoned his right to recover his arrears of salaries or gratuity or pension or any other emoluments that might be still due and payable by the employer. From that point of view a workman would mean and include a person who is an ex-employee an ex-workman but who has a claim for money against the employer for the relevant period of his service. Under such circumstances he must have an outstanding claim on account of his being a workman and for the period or part of the period during which he was under the employment of the employer.

The point has been dealt with a length in the case of Bennett Coleman and Co. (P) Ltd. Vs. Punya Priya Das Gupta, . In that case the Supreme Court observed as follows:

The scheme of all these acts dealing with industrial questions is to permit an ex-employee to avail of the benefits of their provisions, the only requirement being that the claim in dispute must be one which has arisen or accrued whilst the claimant was in the employment of the person against whom it is made.... The contention that the Respondent was not entitled to maintain his application as he was not in the service or the Appellant company on the date of his claim before the Labour Court be sustained.

The point was also considered in a later Supreme Court decision in the case of National Building Construction Corporation Vs. Pritam Singh Gill and Others, in which case the Supreme Court while dealing with the construction of Section 33C(2) of the Industrial Disputes Act, 1947, observed as follows:

Section 33C(2) must be so construed as to take within its fold a workman, who was employed during the period in respect of which he claims relief, even though he is no longer employed at the time of the application. In other words, the term workman as used in Section 33C(2) includes all persons whose claim, requiring computation under this sub-section is in respect of an existing right arising from his relationship as an industrial workman with his employer. By adopting this construction alone can we advance the remedy and suppress the mischief in accordance with the purpose and object of inserting Section 33C in the Act.

To my mind, the principles laid down by the above two Supreme Court cases apply directly to the case before me and accordingly, I do not think that this application has any merit and the Rule nisi must be discharged and the application must be dismissed with costs and I make an order accordingly.