@JUDGMENTTAG-ORDER
Ram Mohan Reddy
1.The employer aggrieved by the order dated 1.1.2010 in Application No. 12/2008 on the file of the II Additional Labour Court, Bangalore recording a finding that the respondent was a workman failing within the definition of the said term under Section-2(s) of the Industrial Disputes Act, 1947 (Act'' for short) and computing benefits in terms of money in a sum of Rs. 35,287/- payable by the petitioner together with interest at 8% per annum from 9.4.2008, in exercise of jurisdiction u/s 33-C (2) of the Act, has presented this petition.
2. In a proceeding instituted by the respondent claiming to be a workman failing within the definition of the said term under Section-2(s)and a legal vested right to recover Rs. 74,370/- towards wages for the months of January to March-2005; leave salary, notice pay, ex-gratia and bonus by invoking Section 33-C(2) of the Act, the petitioner - employer filed statement of objections inter alia contending that the respondent was not a workman and disputed the right to monetary benefits. The Labour Court in the premise of the pleadings of the parties framed five points for consideration. The first of which related to whether the respondent was a workman as defined under Section-2(s) of the Act and by the order impugned answered that point in the affirmative holding that the respondent was a workman and hence entitled to monetary benefit.
3. Having heard the learned counsel for the parties, there is considerable force in the submission of Sri Ramachandran, learned counsel for the petitioner that in a proceeding u/s 33-C(2), the question of determining as to whether the applicant was a workman falling within the meaning of the said term u/s 2(s) of the Act was beyond the jurisdiction of the Labour Court as held by the Apex Court in
4. In Municipal Corporation case, the Apex Court at paragraph-13 observed that the claim of the workmen doing the same kind of work entitled to be paid wages at the same rate as the regular workmen on the principle of equal pay for equal work'' being disputed, without an adjudication of their dispute resulting in acceptance of their claim to that effect, there could be no occasion far computation of the benefit on that basis to attract Section 33-C(2).
5. In Drijpal Singh''s case at paragarph-10 the Apex Court observed that it is well settled that the workman can proceed u/s 33-C(2) only after the Tribunal has adjudicated on a complaint u/s 33-A or on a reference under Section-10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman and further in
6. In the admitted facts of this ease, respondent was appointed as an Assistant on 3.10.1997, confirmed on 1.6.1998 and discharged duties in the Accounts Department where he was under training and paid a consolidated salary of Rs.2,720/- and subsequently redesignated as Executive (Accounts) w.e.f. 1.10.2003 discharging duties of writing out cheques and filing. Thus prima facie the petitioner - employer had placed before the Labour Court material to establish that the respondent did not fail within the definition of the term, ''workman'' u/s 2(s) of the Act. In that view of the matter, it cannot but be said that the observations of the Apex Court in the aforesaid decisions apply and therefore the Labour Court was not justified in recording a finding that the respondent was a workman failing within the definition of the said term under Section-2(s) of the Act so as to compute in terms of money the benefits.
7. In the result, this petition is allowed. The order impugned is quashed end Application No. 12/2008 is dismissed.
