A resigned employee is entitled to invoke S.33C(2) benefits under the Industrial Disputes Act, 1947, contrary to previous restrictive interpretations.

1. The only issue to be considered in the above writ petition is as to whether the petitioner is a workman under the Industrial Disputes Act, 1947 to invoke S.33C(2). The petitioner contends that he was an employee of the 1st respondent, who had been so employed between 20/04/1990 and 18/03/2001, on the latter date of which he resigned from the service. The petitioner’s employment was one covered under the Bechawath Award and he claimed that the amounts paid were not in accordance with the Bechawath Award, which was accepted by a settlement between the management and the representative unions of the 1st respondent.

2. The Labour Court under S.33C(2) first considered the issue as to whether the petitioner was a workman entitled to invoke the provisions of S.33C(2). The Labour Court relied on a Division Bench decision of this Court in Everestee v. District Labour Officer, 1999 KHC 379 : 1999 (2) KLT 560 : 1999 (2) KLJ 1 : ILR 1999 (3) Ker. 142 to find that the petitioner is not a workman. The learned counsel would however contend that a later decision of another Division Bench of this Court in Thomas P. K. and Others v. Sahitya Pravarthaka Co - Op. Society, Kottayam and Others, 2014 (3) KHC 195 : ILR 2014 (3) Ker. 429 : 2014 (3) KLJ 342 : 2014 (3) KLT 761 would indicate that even retired employees would come within the ambit of the definition of ‘workman’ for the purpose of invoking S.33C(2).

3. The latter Division Bench decision also noticed Everestee, (supra). Thomas P. K. (supra), was on the question of whether a retired workman could invoke S.33C(2). It was found that the definition under S.2(s) does not fetter the right of a retired workman to invoke S.33C(2). Everestee, (supra), was a case in which the workman had tendered resignation pursuant to a Scheme for voluntary retirement and had gone out of the employment, as per the terms of the Scheme. The specific finding of the Division Bench was that the employee having voluntarily tendered his resignation pursuant to a retirement scheme and the resignation having been accepted by the management he cannot be treated as a workman to invoke the jurisdiction under S.10 of the Industrial Disputes Act, 1947.

4. The decision in Everestee, (supra), was on the question of whether a reference could be made under S.10 and herein, the question is whether there could be a claim raised under S.33C(2). The division Bench in Thomas P. K., (supra), followed the judgment of the Hon’ble Supreme Court in National Building Construction Corporation Ltd. v. Pritam Singh Gill, AIR 1972 (2) SCC 1 wherein it was held that S.33C was designed to suppress the difficulties faced by individual workers in getting relief in respect of their existing rights without having resort to S.10 of the Act. Therein an employee, who was terminated had approached the Labour Court under S.33C and had sought for computation of benefits in terms of money.

5. The Labour Court relied on Everestee, (supra), to hold that as in the case of a voluntarily retired employee, an employee who has resigned from the service of the establishment has by his voluntary action of resignation gone out of the definition of a ‘workman’ under S.2(s). However, the Labour Court failed to notice that, that was a case in which a voluntarily retired employee had sought for a reference under S.10. The Division Bench held that, he would not be a workman under S.2(s) to enable such a reference. This substantially distinguishes the aforesaid case from Thomas P. K., (supra).

6. The Hon’ble Supreme Court in National Building Construction Corporation Ltd. v. Pritam Singh Gill, AIR 1972 (2) SCC 1 helds so in paragraph 7:
“To accept the argument of the appellant, it would always be open an unfair, unsympathetic and unscrupulous employer to terminate the services of his employee in order to deprive him of the benefit conferred by S.33C and compel him to have resort to the lengthy procedure by way of reference under S.10 of the Act thereby defeating the very purpos