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2010 DIGILAW 979 (JHR)

Ram Janam Singh v. Ashok Kumar Jain

2010-10-08

PRADEEP KUMAR

body2010
JUDGMENT : Pradeep Kumar, J. Heard learned Counsel for the Petitioner and learned Counsel for the Respondent. This writ application is directed against the Award dated 19.8.2004 passed by the Presiding Officer, Labour Court, Ranchi in M.J. Case No. 5 of 1999, by which order the Presiding Officer, Labour Court, Ranchi in an application filed u/s 33C(2) of the Industrial Disputes Act, 1947, claiming a sum of Rs. 86,100/- and an interest at the rate of Rs. 15% per annum on the ground that his services was legally terminated by the Proprietor of M/s. Ashok Enterprises, Upper Bazar, Ranchi, came to a finding that since there is no adjudication by under any reference that the termination of services of the Petitioner-claimant was illegal and since provision of Section 33C(2) of the I.D. Act is a provision of execution of an Award or order to get the admitted amount payable to the employee and it cannot be adjudicated u/s 33C(2) of the I.D. Act until and unless right to get amount is adjudicated upon dismissed the application. 2. It is submitted by the learned Counsel for the Petitioner that the aforesaid finding of the Labour Court is perverse since the Petitioner, who was appointed in the Upper Bazar Shop as Salesman-cum-Bill Clerk on 8.12.1977 in the shop of the Respondent-Company and he worked there on 4.4.1994, he was transferred to Main Road Shop of the Company where he worked till 8.4.1998. It is further submitted that on 8.4.1998 the Petitioner illegally terminated without any notice and compensation and he is entitled to his terminal benefits. Accordingly, he filed an application on 22.3.1999 u/s 33C(2) of the I.D. Act before the Labour Court, Ranchi, demanding retrenchment compensation for 20 years, gratuity, leave wages and for interest. It is further submitted that the learned Presiding Officer, Labour Court, Ranchi, gave a finding that the claim is not based on any existing right nor it has been held that his termination was due to closure of shop. The Labour Court also wrongly found that the claim application was bad for non-joinder of necessary party since the Management of Main Road Shop of M/s. Ashok Enterprises was not made a party and as such the impugned award is bad and only fit to be set aside. 3. The Labour Court also wrongly found that the claim application was bad for non-joinder of necessary party since the Management of Main Road Shop of M/s. Ashok Enterprises was not made a party and as such the impugned award is bad and only fit to be set aside. 3. On the other hand, learned Counsel appearing for the Petitioner has submitted that since the management-Respondent had taken no approval of the order of discharge or dismissal u/s 33(2)(b) of the I.D. Act and as such he will be deemed to be continuing in service and hence he was entitled to all benefits. He has relied upon the judgment of Jaipur Zila Sahkari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and Ors. 2002 (92) FLR 667 (SC) 4. On the other hand, learned Counsel appearing for the Respondent-Management has submitted that since there was no decision or adjudication in favour of the workman that he is entitled to any back wages or any other wages. In that view of the matter, since now it is settled that a proceeding u/s 33C(2) of the I.D. Act, is a proceeding, generally in the nature of execution proceeding, wherein, the Labour Court calculates the amount of money due to the workmen from his employer, or if the workman is entitled to any benefit, which is capable of being computed in terms of money, then the Labour Court proceeds to compute the same. Since, in this case where no admitted claim, the Labour Court rightly rejected the application. He has relied upon a judgment in the case of Central Inland Water Transport Corporation Ltd. v. The Workmen and Anr. 1974 (29) FLR 56 (SC) 5. After hearing both the parties and going through the record, I find that the learned Presiding Officer, Labour Court, Ranchi after considering the pleadings of the parties and evidences while deciding the first issue whether the claim application is maintainable or not? Came to a funding that the Respondent-Ashok Kumar Jain, who had many establishments, but the Petitioner at the time of his termination was working in the Main Road Establishment and since as per the evidence it is an admitted case that he was working in Main Road Establishment since 4.4.1994 till he was terminated on 8.9.1998 due to closure of the establishment, hence in absence of Ashok Enterprises, Main Road Ranchi the application was not maintainable. I find that it is a finding of fact and requires no interference by this Court in its writ jurisdiction. 6. Moreover, I find with regard to the claim of the Petitioner of retrenchment compensation, the learned Court relying upon the judgment reported in the case of Banaras Ice Factory Ltd. v. Their Workman, came to a finding that retrenchment compensation can be claimed only against an existing establishment, since the Petitioner's service was terminated due to closure of the establishment, he cannot claim notice pay and retrenchment compensation and hence the petition was not maintainable. Moreover, with regard to other claim like gratuity the Court rightly came to a finding that the employee is entitled to get gratuity u/s 1(2)(b) of Payments of Gratuity Act when more than 107 persons are working in an establishment and as per Section 1(4)(1) the employee is entitled to get gratuity when he worked for 5 years and came to a finding of fact that he worked for only 4 years from 1994 to 1998. Accordingly, he was entitled to any gratuity and lastly that since none of the claim can be passed u/s 33C(2) of the I.D. Act. 7. I also find that as per the judgment of Supreme Court in the case of Central Inland Water Transport Corporation Ltd., relied by the Respondent an application u/s 33C(2) of the I.D. Act is only maintainable when the claim of the employee is admitted and existing claim and as such the application was rightly dismissed. 8. I find no merit in the writ application, the same is accordingly dismissed.