- (1.)THIS petition is directed against the order of the Labour Court, dated 31-3-75, passed on an application under Section 33c (2) of the Industrial Disputes Act (hereinafter referred to as the "act" filed by Sridhar Sahu, opposite party No. 2 (hereinafter referred to as O. P. No. 2) in that Court. The petitioner is a partnership firm registered under the Indian Partnership Act, 1932. The O. P. No. I was appointed in the petitioner's firm as a salesman since the year 1956.
(2.)ACCORDING to the petitioner, O. P. No. 2 was in the habit of remaining absent unauthorisedly. In the years 1972 and 1973 the O. P. No. 2 remained absent respectively for 15 2 and 141 working days. All warnings and requests to O P. No 2 for rectifying himself in that direction proved futile. O. P. No. 2 unauthorisedly remained absent for most pans of the months of October and November, and for whole of December, 1973. In January, 1974 he came to the petitioner's establishment and expressed his desire not to continue in the employment of the petitioner and wanted his dues with some ex gratia payment. He was offered his full pay for the month of November, 1973, even though he was absent for 20 days in that month, and was also offered t month's pay as ex gratia. O. P. No, 2 refused to accept the same and demanded Rs. 3,000 to which the petitioner's management did no, agree. O. P. No. 2 on various dates and occasions appeared before the petitioner and demanded fantastically heavy amount on the threat that if such amounts were not paid he would carry the matter to Court. The petitioner at one stage agreed to pay him a month's pay and Rs. 500 as ex gratia payment, but O. P. No. 2 did not agree to accept that amount. Thereafter O. P. No. 2 made a petition before the Assistant Labour Commissioner, Cuttack demanding Rs. 5,000 as his dues from the petitioner. The petitioner refuted the claims of O P. No. 2 before the Assistant Labour Commissioner as illegal, fictitious and not maintainable in law, and asserted that the petitioner never removed O. P. No, 2 from service, and maintained that it was O. P. No. 2 who himself remained unauthorisedly absent from his duties and requested the Asst. Commissioner to direct O. P. No. 2 to report to his duties within a reasonable time, failing which he would be deemed to have lost his lien in service under the petitioner. A copy of the petitioner's statement filed before the Assistant Labour Commissioner was sent to O. P. No. 2 but he never chose to join his employment in the petitioner's firm. The application of O. P. No. 2 before the Assistant Labour Commissioner was dismissed, and thereafter he on 19-10-74 made an application before the Labour Court purporting it to be under Section 33c (2) of the Act alleging therein termination of his service by the petitioner and on that basis claiming benefits as mentioned in the statement attached thereto. The said application of O. P. No. 2 was registered as Industrial Dispute Misc. Case No. 109/74 before the Labour Court. The petitioner opposed that petition inter alia on the ground that it was not maintainable in law and the amount claimed was fictitious. It was also asserted that O. P, No. 2's service was never terminated and so his claim to retrenchment benefits was absurd and frivolous. The Labour Court proceeded to decide the dispute and contested fact about the termination of service of O. P. No 2. and by its order dated 31-3-75 it partly allowed O. P. No. 2's claim holding, that he is entitled to get Rs. 1,330 from the petitioner as retrenchment allowance under Section 25f of the Act. The petitioner by this writ application has challenged the above-mentioned order of the Labour Court as illegal and without jurisdiction.
(3.)MR. Nanda, the learned Counsel for the petitioner, contends that in the proceeding initiated on the petition under Section 33c (2) of the Act filed by O. P. No. 2 the Labour Court did not have the jurisdiction to decide the disputed and contested fact as to whether the services of O P No. 2 were terminated or if he was retrenched from service by the petitioner, as such matters are to be adjudicated exclusively by the Industrial Tribunal on a reference as contemplated under the Act, On the other hand, Mr. Misra, the learned Counsel for O. P. No 2, contends that the Labour Court's jurisdiction under Section 33c (2) to compute the benefits of O. P. No. 2 is not ousted merely because his employer disputed the above facts. According to Mr. Misra the said facts being incidental to the claim in question the Labour Court in order to ascertain the claim made under Section 33c (2) has to decide the said facts even though disputed by the employer.