New Kashmir Metal Works And Rolling Mills v. Labour Court And Another

1. The petitioner has questioned the jurisdiction of respondent 1 Presiding Officer, Labour Court, Jammu, to entertain an application under S. 33C (2) of the Industrial Disputes Act, 1947 (hereinafter to be referred to as the Act) filed before him by respondent 2 claiming certain reliefs against the petitioner.

2. Respondent 2 who claims to be an ex-employee of the petitioner filed an application before respondent 1 under S. 33C (2) of the Act, alleging therein, that his service which extended over a period of twenty-two years was illegally terminated by the petitioner on 9 December 1973. He also alleged that the termination of his service was mala fide. Respondent 2, therefore, claimed a sum of Rs. 19,986 from the petitioner on account of gratuity, retrenchment compensation, notice pay, unavailed leave, bonus, arrears of pay and overtime allowance. This claim of the respondent was resisted by the petitioner inter alia on the grounds that there was no relationship of employer and employee between it and respondent 2 and that respondent 2 did not fulfill the requirements of a workman as defined in S. 2 (s) of the Act.

3. Keeping in view the pleadings of the parties, respondent I raised the following preliminary issues:

(i) Is that the Labour Court has no jurisdiction to entertain the instant petition?

(ii) Is that Sri Kartar Singh is not competent to conduct this case in view of S. 36 of the Industrial Disputes Act?

(iii) Is that the petitioner is not a workman as defined under S. 2 (s) of the Industrial Disputes Act?

4. After hearing the parties and perusing the record produced before him, respondent 1 vide his order dated 23 February 1976 decided all the issues against the petitioner inter alia holding that he had jurisdiction to entertain and dispose of the application; that respondent 2 was a workman as defined in S. 2 (s) of the Act; and that relationship of employer and employee was established between the parties. It is this order, which has been impugned in this writ petition. It is useless to burden the judgment with a detailed narrative of the respective contentions of the parties contained in their pleadings, as the grounds which have been ultimately pressed before me, would be thoroughly reflected in their arguments, which I shall reproduce and discuss hereinafter.

5. Mehta appearing for the petitioner, has taken two points before me. His first point is that respondent 1 had no jurisdiction to entertain the application, as the petitioner had categorically denied that any relationship of employer and employee existed between it and respondent 2. Proceedings under Sub-sec. (2) of S. 33C are, according to the learned counsel, in the nature of execution proceedings, wherein right of the workman to claim the relief is not in dispute, and what is in dispute, is only the calculation of the amount claimed. In the alternative, the learned counsel has argued that even if respondent 1 had jurisdiction to decide the right of respondent 2 to claim these reliefs, yet he had no right to grant the same, as an Industrial Tribunal alone had jurisdiction to grant these reliefs under Sch. III to the Act.

6. Sri Bhalgotra, appearing for respondent 2 has on the other hand argued that respondent 1 was competent to decide the right of respondent 2 to claim the reliefs mentioned in the application as well as competent to grant the same in his favour, irrespective of the nature of the dispute raised by the petitioner in relation to the respondent's right to claim the various reliefs. In the alternative the learned counsel has contended that the petitioner having itself admitted, and there being also a finding of the Labour Court to the effect that there was relationship of employer and employee between the petitioner and respondent 2 the plea of disputed right raised by the petitioner was only of academic interest.

7. The two questions, which, therefore, fall for determination are:

(i) what was the dispute involved in the present case? and

(ii) whether respondent 1 could in exercise of the powers vested in him under S. 33C of the Act, adjudicate upon the said dispute?

8. Chapter II of the Act deals with authorities, who have to exercise certain powers or perform certain functions under the Act. Out of these authorities, we are for the purpose of this writ petition, concerned with only Labour Courts and Industrial Tribunals. Labour Courts are established by the appropriate Government in exercise of the powers vested in it under S. 7 of the Act for the adjudication of industrial disputes relating to any matter specified in the Sch. 11 and for per forming such other functions as may be assigned to them under the Act. Industrial Tribunals are created under S. 7A of the Act in the like manner for the adjudication of industrial disputes relating to any matter, whether specified in Sch. II or Sch. III. The Central Government may also establish a National Tribunal under S. 7B of the Act for the adjudication of industrial disputes involving questions of national importance creating interest in or affecting industrial establishments situated in more than one State.

9. Section 10 of the Act provides that where the appropriate Government is of the opinion that any industrial dispute exists or is even apprehended, it may refer the dispute for adjudication to a Labour Court together with any matter appearing to be connected with or relevant to the said dispute, if such dispute relates to any matter specified in Sch. II and in similar circumstances to an Industrial Tribunal in case the dispute relates to any matter specified either in Sch. II or Sch. III. An industrial dispute, under the said section even if it relates to any matter specified in Sch. III may also be referred to a Labour Court provided it is not likely to affect more than hundred workmen. Under Sub-Sec. (1-A) the Central Government may in similar circumstances refer an industrial dispute to a National Tribunal which involves a question of national importance or is of such a nature that industrial establishments situated in more than one State are likely to be interested in or affected by such dispute. Obviously, therefore, the only forums to adjudicate upon an industrial dispute are the Labour Courts, the Industrial Tribunals or the National Tribunals; the remedy of arbitration by mutual agreement under S. 10A of the Act apart no other authority under the Act is competent to adjudicate upon an industrial dispute. Furthermore an industrial dispute can be adjudicated upon only on a reference being made either to a Labour Court or to a Tribunal by the appropriate Government or the Central Government as the case may be and that too when such a dispute pertains to any matter specified in Sch. II or Sch. III. “Industrial dispute” has been defined under S. 2 (k) of the Act in the following words:

“‘Industrial dispute’ means any dispute of difference between employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person.”

10. It, therefore, follows that any matter referred to in the aforesaid Sch. II is not an industrial dispute proprio vigore so as to attract the provisions of S. 10 of the Act, but would become so only if connected with either the employment or non-employment or terms of employment or with conditions of labour of any person mentioned in S. 2 (k) of the Act. A dispute with regard to retrenchment compensation for instance — a matter mentioned in item 10 of Sch. III — would not be an industrial dispute triable only by an Industrial Tribunal under S. 10 of the Act, if what has been disputed is not the relationship of employer and employee between the parties, but whether the compensation is payable to the workman under S. 25F or under S. 25FFF of the Act, as in such a case the dispute would not pertain to either employment or non-employment or the terms of employment or the conditions of labour of the workman. It would be a simple dispute of calculating the amount of compensation. Similarly a dispute with regard to payment of bonus would not become an industrial dispute where bonus has not been claimed on the basis of any term of employment but has been claimed on the basis of a statutory provision. Illustrations can be multiplied to bring out a distinction between industrial dispute and other dispute both pertaining to matter specified in Schs. II and III. I am not, therefore, prepared to accept the argument advanced by Sri Mehta that a dispute irrespective of its nature, which pertains to any matter mentioned in Sch. III, would be triable by an Industrial Tribunal alone.

11. Before answering the aforesaid two questions it may be necessary to notice a few judgments passed by the Supreme Court on the point involved. The basic authority is Central Bank of India v. Rajagopalan [A.I.R 1964 S.C 743]. In this case, the employers had disputed the right of the workmen to claim additional allowance for operating adding machine under the Sastry award. Their principal contention before the Supreme Court was that proceedings under S. 33C are in the nature of execution proceedings where the right of workmen to claim relief is settled. If, therefore, the right of the workmen to claim relief under this section is disputed by the employer, the Labour Court becomes powerless to grant the relief. The Court traced out the entire history of the Act and observed that the Act was initially designed to meet cases of collective disputes between the workmen and their employer and that individual workmen could not enforce their existing rights, without raising an industrial dispute, in the sense, that they did not want any change in their conditions of service, but, only wanted to enforce their existing rights. This omission was realized by the Legislature and the Act underwent a number of changes till the insertion of S. 33C, which provided a speedy remedy to individual workmen to enforce their existing rights. The Supreme Court, therefore, held that where an employee wanted to enforce any existing right, without involving an industrial dispute triable under S. 10 of the Act, or a dispute to be settled by a different forum under the Act or any other law, the Labour Court under S. 33C (2) would be competent to decide the dispute as the decision of the dispute in such a case would be only incidental to the reliefs claimed by the workman. The following observations made by Gajendragadkar, J., who spoke for the Court are pertinent:

“In our opinion, on a fair and reasonable construction of Sub sec. (2) it is clear that if a workman's right to receive the benefit is disputed, that may have to be determined by the Labour Court. Before proceeding to compute the benefit in terms of money, the Labour Court inevitably has to deal with the question as to whether the workman has a right to receive that benefit. If the said right is not disputed, nothing more needs to be done and the Labour Court can proceed to compute the value of the benefit in terms of the money; but if the said right is disputed, the Labour Court must deal with that question and decide whether the workman has the right to receive the benefit as alleged by him and it is only if the Labour Court answers this point in favour of the workman that the next question of making the necessary computation can arise. It seems to us that the opening clause of Sub-sec. (2) does not admit of the construction for which the appellant contends unless we add some words in that clause. The clause

“where any workman is entitled to receive from the employer any benefit”

does not mean

“where such workman is admittedly, or admitted to be, entitled to receive such benefit.”

The appellant's construction would necessarily introduce the addition of the words “admittedly, or admitted to be” in that clause, and that, clearly is not permissible. Besides, it seems to us that if the appellant's construction is accepted, it would necessarily mean that it would be at the option of the employer to allow the workman to avail himself of the remedy provided by Sub-sec. (2), because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the Labour Court to entertain the workman's application. The claim under S. 33C (2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by Sub-sec. (2). As Maxwell has observed

“where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts or employing such means, as are essentially necessary to its execution.”

We must accordingly hold that S. 33C (2) takes within its purview cases of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers.”

12. The Court, therefore, held that right of the workman to claim additional allowance under the Sastry award, was an existing right, and if this right was disputed by the employer, a decision on the dispute would be only incidental to the grant of claim which the Labour Court was fully competent to give under S. 33C (2) by interpreting the Sastry award just as an executing Court would interpret a decree or order sought to be executed. It was, in this sense, that a Labour Court acting under Sub-sec. (2) of S. 33C was held to be an executing Court. The Court also drew a comparison between Sub-secs. (1) and (2) of S. 33C and held that Sub-sec. (2) was wider in scope than Sub-sec. (1) and may include in its ambit, claims other than the ones, based upon settlements or awards or provisions of Chap. V-A of which Sub-sec. (1) spoke. It, therefore, pointedly remarked:

“In this connexion, we may incidentally state that the observations made by this Court in the case of Punjab National Bank Ltd. [A.I.R 1963 S.C 487], that S. 33C is a provision in the nature of execution should not be interpreted to mean that the scope of S. 33C (2) is exactly the same as S. 33C (1) (at page 489-490).

13. Nevertheless, the Supreme Court kept apart, an industrial dispute, or any other dispute, the decision whereupon would not be merely incidental but primary to the relief claimed by a workman, from the jurisdiction of Labour Court, acting under S. 33C (2). To illustrate it the Court observed:

“If an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, it would not be open to him to make a claim for the recovery of his salary or wages under S. 33C (2). His demotion or dismissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal or demotion is unlawful and, therefore, the employee continues to be the workman of the employer and is entitled to the benefits due to him under a pre-existing contract cannot be made under S. 33C (2).”

The Court eventually held:

“The legislative history to which we have just referred clearly indicates that having provided broadly for the investigation and settlement of industrial disputes on the basis of collective bargaining, the Legislature recognized that individual workmen should be given a speedy remedy to enforce their existing individual rights, and so, inserted S. 33A in the Act in 1950 and added S. 33C in 1956. These two provisions illustrate the cases in which individual workmen can enforce their rights without having to take recourse to S. 10 (1) of the Act, or without having to depend upon their union to espouse their cause. Therefore, in construing S. 33C we have to bear in mind two relevant considerations. The construction should not be so broad as to bring within the scope of S. 33C cases which would fall under S. 10 (1). Where industrial disputes arise between employees acting collectively and their employers, they must be adjudicated upon in the manner prescribed by the Act, as for instance, by reference under S. 10 (1). These disputes cannot be brought within the purview of S. 33C. Similarly, having regard to the fact that the policy of the Legislature in enacting S. 33C is to provide a speedy remedy to the individual workman to enforce or execute their existing rights, it would not be reasonable to exclude from the scope of this section cases of existing rights which are sought to be implemented by individual workmen. In other words, though in determining the scope of S. 33C we must take care not to exclude cases which legitimately fall within its purview, we must also bear in mind that cases which fall under S. 10 (1) of the Act for instance, cannot be brought within the scope of S. 33C.”

14. This view has been consistently followed by the Supreme Court (See East India Coal Company v. Rameshwar [A.I.R 1968 S.C 218], Uttar Pradesh Electric Supply Company, Ltd. v. R.K Shukla [(1969) 2 SCC 400 : A.I.R 1970 S.C 237], Central Inland Water Transport Corporation Ltd. v. Its Workmen [1975-II L.L.N 160], Sahu Minerals and Properties, Ltd. v. Labour Court, Ranchi [1975-II L.L.N 315] and Punjab Beverages (Private), Ltd., Chandigarh v. Suresh Chand [1978-I L.L.N 655].

15. In Chief Mining Engineer case [A.I.R 1968 S.C 218] (vide supra), Shelat J., explained “existing right” in the context of the scope of Sub-sec. (2) by saying.

“It is clear that the right to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between an industrial workman and his employer. Since the scope of Sub-sec. (2) is wider than of that Sub-sec. (1) and the sub-section is not confined to cases arising under an award, settlement or under the provisions of Chap. V-A there is no reason to hold that a benefit provided by a statute or a scheme made thereunder, without there being anything contrary under such statute or S. 33C (2), cannot fall within Sub-sec. (2). Consequently, the benefit provided in the bonus scheme made under the Coal Mines Provident Fund and Bonus Scheme Act, 1948, which remains to be computed must fall under sub-sec. (2) and the Labour Court, therefore, had jurisdiction to enter and try such a claim, it being a claim in respect of an existing right arising from the relationship of an industrial workman and his employer.”

16. The scope of S. 33C (2) was determined by Shah, J., in Uttar Pradesh Electric Supply Company case [(1969) 2 SCC 400 : A.I.R 1970 S.C 237] (vide supra) in the following words:

“Where retrenchment is conceded, and the only matter in dispute is that by virtue of S. 25FF no liability to pay compensation has arisen the Labour Court will be competent to decide the question. In such a case the question is one of computation and not of determination, of the conditions precedent to the accrual of liability. Where however, the dispute is whether workmen have been retrenched and computation of the amount is subsidiary or incidental, in our judgment, the Labour Court will have no authority to trespass upon the powers of the Tribunal with which it is statutorily invested.”

17. The Supreme Court appears to have discussed, the ambit and scope of S. 33C (2) more illustratively, when Palekar, J., speaking for the Court observed:

“In a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of

(i) the plaintiff's right to relief;

(ii) the corresponding liability of the defendant, including, whether the defendant is, at all, liable or not; and

(iii) the extent of the defendant's liability, if any.

The working out of such liability with a view to give relief is generally regarded as the function of an execution proceeding. Determination (iii) referred to above, that is to say, the extent of the defendant's liability may sometimes be left over for determination in execution proceedings. But that is not the case with the determination under heads (i) and (ii). They are normally regarded as the functions of a suit and not an execution proceeding. Since a proceeding under S. 33C (2) is in the nature of an execution proceeding it should follow that an investigation of the nature of determinations (i) and (ii) above is, normally, outside its scope. It is true that in a proceeding under S. 33C (2), as in an execution proceeding, it may be necessary to determine the identity of the person by whom or against whom the claim is made if there is a challenge on that score. But that is merely ‘incidental.’ To call determinations (i) and (ii) ‘incidental’ to an execution proceeding would be a perversion, because execution proceedings in which the extent of liability is worked out are just consequential upon the determinations (i) and (ii) and represent the last stage in a process leading to final relief. Therefore, when a claim is made before the Labour Court under S. 33C (2) that Court must clearly understand the limitation under which it is to function. It cannot arrogate to itself the functions — say of an Industrial Tribunal which alone is entitled to make adjudication in the nature of determinations (i) and (ii) referred to above, or proceed to compute the benefit by dubbing the former as ‘incidental’ to its main business of computation. In such cases determinations (i) and (ii) are not ‘incidental’ to the computation. The computation itself is consequential upon and subsidiary to determinations (i) and (ii), as the last stage in the process which commenced with a reference to the Industrial Tribunal. It was, therefore, held in State Bank of Bikaner and Jaipur v. R.L Khandelwal [1968-I L.L.J 589], that a workman cannot put forward a claim in an application under S. 33C (2) in respect of a matter which is not based on an existing right and which can be appropriately the subject matter of an industrial dispute which requires a reference under S. 10 of the Act.”

18. In Sahu Minerals and Properties, Ltd. v. Labour Court, Ranchi, (1975-II L.L.N 315] (vide supra), where relationship of employer and workman was not in dispute but the only dispute was in regard to the basis of calculating the compensation, the Court held that such a dispute could not take away the right of the Labour Court to grant relief to the workman under S. 33C (2) after deciding the dispute. Alagiriswami, J., speaking for the Court observed (in Para. 4 at page 318):

… “the present case stands on an even stronger footing. Even the employer does not dispute that the workmen are entitled to compensation. It only says that the compensation should be calculated on a particular basis different from the basis on which the workman claims. The claim also falls under Chap. V-A.

19. In Punjab Beverages (Private), Ltd., Chandigarh v. Suresh Chand [1978-I L.L.N 665] (vide supra) power of the Labour Court to grant relief to the workman under S. 33C (2) on the basis of an existing right was defined by Bhagwati, J., in these words (in Para. 4 at page 667)

“It is now well settled, as a result of several decisions of this Court, that a proceeding under S. 33C (2) is a proceeding in the nature of executive proceeding in which the Labour Court calculates the amount of money due to workman from his employer, or if the workman is entitled to any benefit which is capable of being computed in terms of money proceeds to compute the benefit in terms of money. But the right to the money which is sought to be calculated or to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between the industrial workman, and his employer. Vide Chief Mining Engineer East India Coal Company Ltd. v. Rameshwar [A.I.R 1968 S.C 218] (vide supra). It is not competent to the Labour Court exercising jurisdiction under S. 33C (2) to arrogate to itself the functions of an industrial Tribunal and entertain a claim which is not based on an existing right but which may appropriately be made the subject matter of an industrial dispute in a reference under S. 10 of the Act. Vide State Bank of Bikaner v. R.L Khandelwal [1968-I L.L.J 589]. That is why Gajendragadkar, J., pointed out in Central Bank of India, Ltd. v. P.S Rajagopalan, etc., [A.I.R 1964 S.C 743] (vide supra), that

“if an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, it would not be open to him to make a claim for the recovery of his salary or wages under S. 33C (2). His demotion or dismissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal or demotion is unlawful and, therefore, the employee continues to be the workman of the employer and is entitled to the benefit due to him under a pre-existing contract cannot be made under S. 33C (2).”

The workman, who has been dismissed would no longer be in the service of the employer and though it is possible that on a reference to the Industrial Tribunal under S. 10 the Industrial Tribunal may find, on the material placed before it, that the dismissal was unjustified, yet until such adjudication is made, the workman cannot ask the Labour Court in an application under S. 33C (2) to disregard his dismissal as wrongful and on that basis to compute his wages.”

20. The authority — Payment of Wages Inspector v. Surajmal Mehta [A.I.R 1960 S.C 590], does not help respondent 2 as the facts of that case are clearly distinguishable from the facts of the present case. In that case some employees of the Barnagar Electric Supply and Industry Company had claimed compensation under S. 15 (2) of the Payment of Wages Act on the ground that transfer compensation under S. 25FF of the Act was wages within the amended definition of S. 2 (vi) (d) of the Payment of Wages Act. The main ground upon which the employee's claim was resisted was that a dispute in regard to right of the employees to claim compensation under S. 25FF could be decided only by a Labour Court under S. 33C (2) of the Act and not by an authority under the Payment of Wages Act. It was in this background that the Court relying upon Rajagopalan case [A.I.R 1964 S.C 743] (vide supra), made certain observations with regard to the powers of a Labour Court under S. 33C (2) of the Act and held that such a right could not be adjudicated upon under S. 15 (2) of the Payment of Wages Act but under S. 33C (2) the Act. The question whether or not a dispute falling under S. 10 of the Act was involved never fell for determination in the said case.

21. The conclusions which evidently emerge from the above discussion may be summed up as below:

(i) A dispute in regard to any matter referred to in Sch. II or Sch. III shall not per se constitute an “industrial dispute” to be dealt with under S. 10. it would be so only if it is connected with the employment or non-employment or terms of employment or with the conditions of labour of a workman.

(ii) A Labour Court acting under S. 33C (2) shall have power to decide any dispute raised by an employer with regard to the workman's right to the relief claimed provided such right is an existing one. A simple denial of the workman's right by the employer in such a case would not be enough to oust the jurisdiction of the Labour Court.

(iii) Where, however, the dispute raised is either an industrial dispute triable under S. 10 or any other fundamental dispute to be tried by a different forum under the Act and the reliefs claimed by the workman would automatically flow from its decision going in favour of the workman, the Labour Court acting under S. 33C (2) shall have no jurisdiction to adjudicate upon the same.

(iv) An existing right is one which is either admitted or is already adjudicated upon or is provided for, e.g, under Chaps. V-A and V-B of the Act and must arise in the course of and in relation to the relationship between an industrial workman and his employer.

(v) The scope of Sub-sec. (2) is wider than that of Sub-sec. (1) of S. 33C and a claim not based upon any settlement, award or provisions of Chaps. V-A and V-B may also be raised under Sub-sec. (2) provided it is based upon an existing right.

22. Adverting now to the facts of the present case, it has been noticed that the petitioner had categorically denied that respondent 2 was its employee. The case of respondent 2 on the other hand was that his service had been illegally terminated by the petitioner. In other words he had pleaded wrongful discharge or dismissal from service. This dispute on terms of S. 2 (k) was undoubtedly an industrial dispute pertaining to the employment or non-employment of respondent 2 irrespective of the fact whether it related to his discharge or dismissal under item (3) of Sch. II or it related to his retrenchment under item (10) of Sch. III. It was not a dispute based upon an existing right which arose in the course of and in relation to the relationship between a workman and his employer. In any case, therefore, the dispute could have been tried only under S. 10 of the Act either by a Labour Court or by an industrial Tribunal on a reference made to it by the appropriate Government. Respondent 1 had clearly no jurisdiction to decide the same under S. 33C (2) of the Act for giving other consequential reliefs to respondent 2.

23. This inevitably brings me to the question whether or not the petitioner had conceded before respondent 1 that relationship of employer and employee existed between it and respondent 2. Barring the statement of respondent 1 himself which occurs in the impugned order, 1 do not find any other material on the record which can either substantiate or corroborate the same. More often than not, we find such statements being challenged before superior Courts by parties adversely affected thereby. Such challenges by and large tend to cause doubt upon the fairness and integrity of the officers presiding subordinate Courts or Tribunals. Such happenings are highly undesirable. Courts or Tribunals basing their findings on admissions would be well advised to take care to record the statement of the parties making admissions. This would save the superior Courts from the predicament in which they might have to land sometimes in such circumstances.

24. Be that as it may, even an admission during the course of trial could not have invested respondent 1 with jurisdiction to try the application. Respondent 2 had himself raised a probable industrial dispute before respondent 1 in so far as he had taken the plea that determination of his service was illegal and mala fide. This plea could have been either admitted by the petitioner or denied by it either on the ground that his service had not been so terminated or that he was not the employee of the petitioner at all. In the event of admission no industrial dispute could have possibly survived, but in the case of resistance an industrial dispute did arise which could not have been adjudicated upon except by taking recourse to S. 10 of the Act. The moment relationship of employer and employee was denied by the petitioner, respondent 1 should have taken his hands off and left respondent 2 to seek remedy under S. 10 of the Act. He had no business to proceed with an inquiry as to whether or not such a relationship existed as it was the exclusive domain of either a Labour Court or an Industrial Tribunal exercising power under S. 10 of the Act.

25. In the result, the petition is allowed and the proceedings pending between the parties under S. 33C (2) of the Act, before respondent 1 are quashed. There shall be no order as to costs.