V. Pentayya vs The Joint Manager Food Corporation of India and Another

Bhaskar Rao, J.—The simple question this writ petition gives rise to is, whether an application made u/s 33C(2) of the Industrial Disputes Act by a retired workman for recovery of certain monies due for the period during which he was in employment from the employer is maintainable.

The brief facts that gave rise to the above question are: The Petitioner worked as a Khalasi in the Food Corporation of India 1st respondent for 20 years and retired in August, 1986 voluntarily under a special scheme. Thereafter, he filed C.M.P.33/89 on the file of the 2nd respondent labour-court for recovery of certain amounts due from the Corporation. The labour court having heard the counsel for the Food Corporation of India on the preliminary issue as regards the maintainability of the application made by a retired workman, returned the papers for presentation, before a proper court on 10-9-1990 holding that the application is not maintainable. It is this order of the 2nd respondent that is challenged in this writ petition.

Heard the learned counsel appearing for both parties.

Section 2(s) of the Industrial Disputes Act defines ''workman'' thus:

(s) "Workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory 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 such person-

(i) who is subject to the Air Force Act, 1950.

(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 one thousand six hundred rupees per mensem 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."

The above definition specifically excludes certain categories of employees from its sweep, and thus it is an exclusive definition in nature.

In Govt. Soap Factory, Bangalore v. Labour Court, AIR 1970 Mysore 225 the question arose was exactly similar to the one on hand. There respondent Nos. 2 and 3 made an application u/s 33C(2) of the Industrial Disputes Act after their retirement from the factory for recovery of certain monetary benefits that stood due. In that context following the decision of the Madras High Court in Manicka Mudaliar v. Labour Court, Madras, 1961 (1) Lab L.J. 592 wherein Rajamannar, C.J., speaking for the Bench held that an application u/s 33C(2) of the I.D. Act may be made by a person who was a workman during the period in respect of which he was entitled to any benefit, the Mysore High Court concluded that it was competent for respondents 2 and 3 to make the application u/s 33C(2) of the I.D. Act even though they had retired from employment of the factory. The Supreme Court had also the occasion in Bennett Coleman and Co. (P) Ltd. Vs. Punya Priya Das Gupta, to deal with a question of present nature. There, the Supreme Court held:

"Similar provisions are also to be found in Section 33C(2) of the Industrial Disputes Act. Claims under that section include those for compensation in cases of retrenchment, transfer of an undertaking and closure under Ch.VA of that Act, all of which would necessarily be claims arising after termination of service and the claimant would obviously be one in all these cases who would not be presently employed in the establishment of the employer against whom such claims are made. Likewise the claim for gratuity u/s 17 read with Section 5 of the Act would itself be one which, accrues after the termination of the employment. These provisions, therefore, clearly indicate that it is not only a newspaper employee presently employed in a particular newspaper establishment who can maintain an application for gratuity. 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 employee was in the employment of the person against whom it is made."

Therefore, the real test is not one as to whether the claimant is presently or formerly a workman, but the clinching fact is that the claim should relate to the period during which the person was a workman. In this case, admittedly, the petitioner was a workman as per the definition noted supra. No doubt, he is not presently employed, as he took voluntary retirement. Further, it is also not in dispute that the claim for certain amounts made relates to the period during which the petitioner was a workman. In view of this, the application made by him before the Labour Court is maintainable. Accordingly, the impugned order is set aside holding that the application is maintainable, and the Labour Court is directed to dispose of the application on merits according to law. The writ petition is allowed. No costs. Advocate''s fee Rs. 250/-.