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1991 DIGILAW 157 (GAU)

Sailesh Chandra Dey v. Presiding officer, Labour Court, Gauhati & Anr.

1991-09-11

S.N.PHUKAN, U.L.BHAT

body1991
U. L. Bhat, C. J.- Petitioner is a former employee of M/S Moloy Bin Company Ltd. of which the Secretary is respondent no. 2 herein. Petitioner was working as an accountant and for some reason or the other he tendered resignation which was accepted. However, the sum due to him by way of leave salary, out-station allowance, gratuity, bonus, un-paid salary and Provident Fund were allegedly not paid to him. He, therefore, filed an application before the respondent no. 1, the statutory authority, claiming the amount under Section 33 (C) (2) of the Industrial Disputes Act, 1947 (for short, the Act). The appl­ication was resisted by the second respondent who contended, interalia, that the petitioner had ceased to be "workman" of the second res­pondent on the date of the application under Section 33 (C) (2) and hence he is not entitled to invoke section 33 (C) (2) of the Act. The Labour Court accepted this contention and rejected the applica­tion. Hence, the present petition filed under Article 226 of the Constitution. 2. Section 33 (C) (2) reads as follows :- "(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". It is clear that the claim can be made by a "workman". 3. The expression 'workman' has been defined in Section 2 (s) of the Act. It is clear that the claim can be made by a "workman". 3. The expression 'workman' has been defined in Section 2 (s) of the Act. Leaving aside the exception, the definition runs thus : In this context, unless there is anything repugnant in the subject or context,- *** *** *** "Workman, means any person 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 art Industrial dispute, including any such who has been dismissed, discharged or retrenched in connection with or as a consequence of that dispute, or whose dismissal, discharge, retrenchment has led to that dispute, but does not include..............." "Workman as denned above takes in not only a person actually in employment, but takes in also dismissed, discharged or retrenched workers, though the inclusive definition is in relation to Industrial Disputes. The legislature policy to treat former workman as workman for a limited person is clearly discernable from the inclusive definition. The question is whether that a former workman can be treated as a 'work­man' for the purpose of Section 33 (C) (2) of the Act. 4. The definition begins with the words "In this Act, unl­ess there is anything repugnant in the subject or context." Whenever a definition is to be construed and its application is to be considered, the Court has to consider whether there is any­thing repugnant in the subject or context and if there is nothing repugnant in the subject or context, the definition has to be applied in the subject or context. If, however, there is any repugnancy the court must further consider to what extent, if at all, the definition can be imported into the subject or context and if it can not be so im­ported, to determine what other meaning can be ascribed to the par­ticular expression in the context or subject. 5. Section 33 (C) (2) contemplates a situation where any wor­kman is entitled to receive any money or benefit which can be com­puted in terms of money and there is any question arising as to the amount of money due. In such a situation the workman is entiled to approach before the Labour Court under Section 33 (C) (2). 5. Section 33 (C) (2) contemplates a situation where any wor­kman is entitled to receive any money or benefit which can be com­puted in terms of money and there is any question arising as to the amount of money due. In such a situation the workman is entiled to approach before the Labour Court under Section 33 (C) (2). Neither on principle nor on precedent can it be said that the Legislature int­ended to use the expression 'workman' in Section 33 (C) (2) in its narrow sense as a workman in actual employment of the employer on the date of the application. Section 33 (C) (2) has been enacted to ensure the workman an efficacious and speedy modality to coll­ect the amount due to him from the employer. There is no reason why this efficacious remedy should be denied to a person who was an employee of the employer bat has ceased to be under such emp­loyment on the date of the application. Such denial will frustrate the legislative purpose behind section 33 (C) (2) since an employer who owes such dues to his workmen need only to terminate his ser­vice to prevent him from invoking Section 33 (C) (2). To import the definition in Section 2 (a) in all it's vigour in to Section 33 (C) (2) lead to spell out a clear repugnancy with the scheme of section 33 (C) (2) and the legislative intendment. To hold that the expression "Wor­kman" occurring in Section 33 (C) (2) could take in a former Wor­kman could subserve the legislative purpose. The only limitation is that his claim must be in respect of an existing right arising from Ms erstwhile relationship as an emplyoee of the employer. 6. In Supreme Court in National Building Construction vs. Pritam Singh Gill and Ors, (1972) 2 SCC 1 on almost identical facts took the view the "Workman" as used in Section 33 (C) (2) included 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. Petitioner is entitled to inv­oke Section 33 (C) (2). We, therefore, find that the order of the Labour Court is who­lly erroneous in law and, therefore, can not stand. We see aside the order dated 24.4.86 passed by the Presiding Officer, Labour Court in Misc. Petitioner is entitled to inv­oke Section 33 (C) (2). We, therefore, find that the order of the Labour Court is who­lly erroneous in law and, therefore, can not stand. We see aside the order dated 24.4.86 passed by the Presiding Officer, Labour Court in Misc. Case No. 10 of 1984 (Annexure-A to the petition) and re­mit the proceeding to the Labour Court for fresh disposal of the matter in accordance with law. The Civil Rule is accordingly disposed of, but without cost.