Jammu and Kashmir State Industrial Development Corporation Ltd v. Industrial Tribunal-cum-Labour Court & Anr.

considering rival contentions of the parties, passed the impugned award.

3. I have heard learned counsel for the parties and considered the matter.

4. In terms of impugned Award, the Labour Court has held respondent no.2 entitled to the relief claim by him in his petition. The Labour Court has also held that respondent no.2 is entitled to leave encashment salary of 10 months as per J&K Service (Leave) Rules.

5. Learned counsel appearing for the petitioner-Corporation has submitted that the petitioner company has been constituted by the orders of Government of Jammu and Kashmir. The company is, thus, a Government owned company and has been established, among others, with an object to develop and promote industries in the state of Jammu and Kashmir. It is stated that the petitioner-corporation has its own rules, regulating the conditions of service of its employees. He also states that insofar as leave rules are concerned, maximum limit for accumulation of earned leave and cash in lieu thereof at the time of retirement was fixed as 180 days. However, vide order dated 17. 10. 2008, the petitioner corporation adopted J&K Civil Service (Leave) Rules, 1979. Maximum limit for accumulation of earned leave and cash in lieu thereof got, accordingly, enhanced to 300 days. It is also averred that one has to have 300 days of earned leave to his credit for claiming maximum admissible amount of cash in lieu of salary and that if somebody has less than 300 OWP no.688/2016 days to his credit then his entitlement would get proportionately reduced. It is stated that respondent No.2 was working in the petitioner- corporation as Senior Manager and retired on superannuation on 30th June, 2010. At the time of retirement, respondent No.2 was drawing monthly salary of more than Rs. 37,000/- that was later revised to more than Rs.44,000/- Learned counsel for petitioner-corporation has also stated that upon retirement, respondent No.2 had earned leave of 236 days to his credit and, accordingly, cash in lieu thereof was paid to him. It is averred that respondent no.2 is not a ‘workman’ as defined in Industrial Disputes Act (for short “the Act”) as he was working as Senior Manager with monthly salary of more than Rs.44,000/-. Respondent no.2 moved an application before respondent No.1 in terms of Section 33 C (2) of the Act, for directing release of balance amount of cash in lieu of leave on the ground that maximum limit of cash in lieu of leave salary has been enhanced to 300 days. It is stated that the petitioner corporation filed its objections and claimed that whatever was due to respondent no.2 had already been paid to him and that nothing more was due. Without adverting to basic factors going to the root of the matter and concerning jurisdiction, respondent no.1 has passed an impugned award, directing petitioner-corporation to pay balance amount on account of cash in lieu of 300 days of leave salary. According to learned counsel, only workman can approach Labour Court under the Act. Respondent No.1 has jurisdiction to pass orders in respect of and on the application of a workman, which respondent no.2 was not and that order passed on the application of a person to whom the Act does not apply, is ex facie OWP no.688/2016 without jurisdiction, particularly when respondent no.2 was not a workman and that having regard to definition of the workman in the Act, respondent no.2 is not a workman. Respondent no.1 has authority to pass award only in favour of workman, as such, the impugned award in favour of respondent no.2, who is not a workman, is without jurisdiction and as such a nullity. He also contends that assuming though not admitting that respondent no.2 is a workman, still the award is without jurisdiction, in that it goes beyond the scope of Section 33 C (2) of the Industrial Disputes Act and under the said section, the authority can pass orders when there is dispute about computation or manner of computation and that when there is no dispute about computation but the very entitlement of the workman is denied and disputed, the workman is supposed to approach appropriate authority and cannot resort to Section 33 C (2) of the Act and the dispute qua entitlement can be gone into only if reference is made in terms of Section 10 of the Act and that payment ordered to be made could be adjudicated upon or decided under Payment of Wages Act, assuming that other conditions fulfilled. Respondent No.1, it is next stated, has purportedly passed orders in exercise of powers under Section 15 of Payment of Wages Act. Respondent no.1 has no jurisdiction to pass orders under Payment of Wages Act. He also avers that admittedly and as noticed by respondent no.1, maximum limit for accumulation of leave has been enhanced from 180 to 300 days only in 2008 and till then respondent no.2 could not have accumulated more than 180 days of earned leave and that respondent no.2 has thereafter remained in service for 01 year and 8 months and, therefore, respondent could earn a OWP no.688/2016 maximum of 56 days after the limit was enhanced. There was no question of having earned leave of 300 days. Respondent no.1 has failed to appreciate that 300 days is the maximum limit and that one has to have earned leave of 300 days to claim full payment; that respondent No.1 has totally gone wrong and misdirected itself while passing the order.

6. On the other hand, it is the case of respondent no.2 that petitioner- Corporation has itself adopted the J&K Civil Service Leave Rules, 1979 and, therefore, respondent no.2 is entitled to all the benefits emanating from the said Rules. Consequently, respondent no.2 approached the Labour Court.

7. The case set up by parties requires perusal of Section 33-C (2) of Industrial Disputes Act, which is reproduced hereunder: “(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 within a period not exceeding three months: Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.”

8. As it appears from perusal of Section 33-C (2), a workman is entitled to receive any money or any benefit from employer. The said money or benefit is to be computed in terms of money. If any question arises about the money due or about the amount at which such benefit should be computed, such a question is to be decided by Labour Court in accordance with rules which may be made under the Act. OWP no.688/2016 It is settled law that in an application preferred under Section 33- C (2) of the Act, the Labour Court has no jurisdiction and cannot adjudicate upon the dispute of entitlement or the basis of claim of workmen and the Labour Court can only interpret the award or settlement on which the claim is based. The Labour Court’s jurisdiction under Section 33-C (2) of the Act is like that of an executing court and without prior adjudication or recognition of the disputed claim of the workmen, proceedings for computation of the arrears of wages and/or difference of wages claimed by workmen shall not maintainable under Section 33-C (2) of the Act.

9. As to whether respondent no.2 was working as workman or not, is required to be taken note of and decided by the Labour Court. Who is workman is to be seen within the definition of Section 2(s) of the Act. “(s) "workman" means any person (including an apprentice) 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 an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person— (i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or (ii) who is employed in the police service or as an officer or other employee of a prison; or is employed mainly (iii) who administrative capacity; or in a managerial or (iv) who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.” OWP no.688/2016

10. Thus, Section 2 (s) of the Act provides that workman means any person including an apprentice 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 the Act regarding an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute. However, a person, who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957), shall not be called or termed as “workman”. Similarly, a person, who is employed in the police service or as an officer or other employee of a prison, shall also not called as “workman”. A person who is employed mainly in a managerial or administrative capacity shall also not be called as “workman”. Insofar as person, who, being employed in a supervisory capacity, draws wages exceeding Rs.10,000/- per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature, shall also not be called or fall within the definition of “workman” under and in terms of provisions of Section 2(s) of the Act. In the instant case, respondent no.2 squarely falls within the provisions of Section 2(s) (iii) and 2(s)(iv) of the Act, and, therefore, he cannot be said to be a “workman” and as a consequence of which, the Labour Court – respondent no.1 lacked jurisdiction to entertain the OWP no.688/2016 application of respondent no.2 under Section 33-C (2) of the Act and resultantly, impugned order warrants interference.

11. For the reasons discussed above, writ petition is allowed and impugned Award dated 30th June 2015, passed by respondent no.1 (Industrial-cum- Labour Court, J&K, Srinagar), in a petition titled as Mohd Ayoub Mir v. Managing Director, is quashed.

12. It is, however, made clear here that respondent no.2 is free to initiate appropriate proceedings and/or avail the appropriate remedy as may be available to him under law for redressal of his grievances, if any.

13. Disposed of. Srinagar 16.05.2023 Ajaz Ahmad, PS (Vinod Chatterji Koul) Judge Whether approved for reporting? Yes/No. OWP no.688/2016