VISHNU KUMAR MANGLA Vs. DHANESHWAR GUPTA

JUDGEMENT

(1.) In this appeal short question arises about the maintainability of an application preferred by the appellant before the Labour Court under Section 33-C (2) of the Industrial Disputes Act. This application was rejected by the Labour Court vide orders dated 17 th April, 2008 on the ground that it was not in the nature of execution petition passed on existing rights but involved dispute which could be adjudicated only by means of industrial dispute under Section 10 of the Industrial Disputes Act. The Learned Single Judge has upheld the order of the Labour Court vide impugned judgment dated 18 th September, 2009. Before taking note of the provisions under Section 33 of the Act and its scope, we will have to first find out the claims which were made by the appellant/workmen in his application under Section 33C (2) of the Act before the Labour Court.

(2.) As per the averments made in the said application, the appellant joined the respondent management as a part-time Accountant on 10 th April, 1986. In April, 1998 he was made full time Accountant. His last drawn salary was Rs. 12,000/- which consists of Rs. 8000/- as wages and Rs. 4000/- as conveyance allowance for discharging out-door duties and functions. According to him, he was also looking after the work of two other sisters concern. On 8.9.2006 he sent a representation to the respondent management for the release of due salary unpaid since November,2005 which was followed by a legal notice dated 26 th September, 2006. Instead of paying the salary, his services were terminated on 30 th September, 2006. Thereafter on 27 th July, 2007 he filed an application under Section 33-C(2) of the Act asking for the following reliefs:

(3.) In the reply submitted by the respondent, it took the decision that the provisions of Payment of Gratuity Act, 1972 and Payment of Bonus Act, 1965 were not applicable as the total number of employee employed by the management were three. The respondent also took the decision that appellant did not work from November, 2005 till September, 2006 and, therefore, no such salary or wages were payable. On this basis, it was also submitted that this application for disputed claim was not maintainable and reliance was placed on the judgment of Supreme Court in the case of MCD Vs. Ganesh, Razak, 1995 1 SCC 235 wherein the Supreme Court has held that the claim which is not based on existing right is not maintainable, the proceedings under Section 33C (2) are in the nature of execution proceedings and the Labour Court has no jurisdiction to first decide the entitlement of the workmen and on that basis to pay the benefits.