D KRISHNAN Vs. SPECIAL OFFICER VELLORE COOP

JUDGEMENT

(1.) Leave granted.

(2.) Appellant Nos. 1 and 2 were appointed to the respondent mill vide orders dated 4th April 1977 and 19th February 1979 respectively. Both were promoted to various posts in the course of their service and appellant No.2 was put in charge of the employees canteen in the year 1991 whereas appellant No.1 given the same charge in February 1996.

(3.) Mr. Colin Gonsalves, the learned senior counsel for the workmen-appellants, has submitted that though proceedings under Section 33 C(2) of the Act were indeed in the nature of execution proceedings but this provision also visualized some enquiry, be it a casual one, and as the Labour Court and the learned Single Judge of the High Court had taken a particular view on the evidence, the Division Bench ought to have stayed its hands and not taken a different view. It has been pleaded that there was a difference between the terminology of Sections 33 C(1) and section 33 C(2) inasmuch as section 33 C(1) dealt with money due to a workman from an employer under a settlement or award etc., whereas section 33 C(2) was much wider in its application and visualized an entitlement with respect to money even if a pre-existing right was created by a Statute and as in the present case, section 59 of the Factories Act visualized payment of overtime wages, a simple enquiry under section 33 C(2) was fully justified. In this connection, the learned counsel has placed reliance on Chief Mining Engineer East India Coal Co.Ltd. vs. Rameshwar & Ors. (1968) 1 SCR 140. He has also pleaded, that even assuming for a moment, that there was some evidence to raise a suspicion that the appellants were Managers and not workmen, the dominant purpose of their employment had to be seen and the dominant purpose being that of workmen, even if they were delegated some minor managerial activities, would not change the nature of their appointment. It was also submitted that all the judgments cited by the Division Bench pertained to cases where the workmen claimed "equal pay for equal work" and which did involve the determination of a right, but in the present case, keeping in view the provisions of Section 59 of the Factories Act, and the dominant purpose of the employment of the appellants, the aforesaid judgments were not applicable.