Madhya Pradesh High Court
Unipack Corrugators India Private Ltd. vs Babu Lal Rajak on 9 August, 2012
1
HIGH COURT OF MADHYA PRADESH AT JABALPUR
Writ Petition No : 3186 Of 2010
Unipack Corrugators India Private Ltd.
V/s
Babu Lal Rajak & Another
Present : Hon'ble Shri Justice Rajendra Menon.
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Shri Rajesh Maindiretta, learned counsel for the petitioner.
Shri Arvind Shrivastava, learned counsel for respondent No.1.
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ORDER
9.8.2012 Challenging an order dated 22.12.2003 passed by the Presiding Officer, Labour Court Sagar exercising jurisdiction in a proceeding held under Section 33-C (2) of the Industrial Dispute Act and directing for payment of unpaid wages to the tune of Rs.36,000/- along with bonus and leave encashment to respondent No.1 employee, this writ petition has been filed.
2. Petitioner company has filed this writ petition interalia contending that respondent No.1 Shri Babu Lal Rajak, who was working in the establishment of the petitioner, as a Printing Operator, filed an application before the Labour Court Sagar under Section 33-C(2) of the Industrial Dispute Act wherein it was averd by him that he was appointed as a Printing Operator on 2.4.1999 on a monthly pay of Rs.4,000/-. It was 2 his case that for the work done between 1.12.2001 to 31.8.2002 salary at the rate of Rs.4,000/-, as per contract of appointment, has not been paid, therefore, he claimed Rs.36,000/- as unpaid salary. That apart it was stated that in the year 1999-2000, 2000-2001 and 2001-2002 bonus of Rs.12,000/- has not been paid. Further claim to the extent of encashment of leave upto particular period amounting to Rs.6,000/- was also claimed. Notices were issued and petitioner appeared before the Labour Court and thereafter an ex-parte award was passed on 22.12.2003 which is impugned in this writ petition.
3. Initially when the ex-parte order was passed, the company filed an application under Order IX Rule 13 CPC seeking recall of ex-parte order. This application was rejected by the Labour Court and, therefore, the rejection of the said application was challenged before a Division Bench of this Court in W.P. No.5572/2007 and the Division Bench vide order Annexure P-4 dated 9.2.2010 dismissed the writ petition and held that proceeding ex-parte in the matter was right, but liberty was granted to the petitioner to challenge the original order passed under Section 33-C(2) and, therefore, this writ petition.
4. Shri Rajesh Maindiretta, learned counsel argued that in a proceeding under Section 33-C(2) of the Industrial Dispute Act, the Labour Court gets jurisdiction to adjudicate the matter only if there is a prior adjudication of the dispute between parties and if an order has been passed on such adjudication, the same can be executed in a proceedings under Section 33-C(2). It is argued that, in the present case, as there is no prior adjudication of the dispute by any appropriate forum the application under Section 33-C(2) was not maintainable and, therefore, in exercising 3 jurisdiction it is stated that the Labour Court has committed error. In support of his contention he invites my attention to the following judgments :
1. State of Uttar Pradesh & Anr. vs. Brijpal Singh 2005(8) SCC 58
2. D. Krishnan & Anr. Vs. Special Officer, Vellore Coop.
S.M. & Anr. 2008(7) SCC 22
3. Municipal Corporation of Delhi vs. Razak 1995(1) SCC 235
5. Thereafter it was argued by him that, in the present case the claim of employee/respondent No.1 has not been properly established, inspite thereof the application has been allowed which is not correct and, therefore, interference be made. Accordingly, on the aforesaid two grounds challenge is made to the impugned action.
6. Shri Arvind Shrivastava, learned counsel for respondent No.1 refute the aforesaid and argued that the application was maintainable under Section 33-C (2) and in allowing the application the Labour Court has not committed any error. It was further emphasized by him that when the respondent employee raised the claim, he entered the witness box and as he has established his claim by leading proper evidence the Labour Court has not committed any error in awarding the amount by allowing the application, accordingly, it is submitted by him that no case is made out for interference.
7. I have heard learned counsel for the parties at length and perused the record and considered the judgment relied upon by Shri Rajesh Maindiretta. Shri Maindiretta is not right in contending that the Labour Court gets jurisdiction to determine the monetary benefit in a proceeding under Section 33-C(2) only if there is a prior adjudication of the dispute by 4 the competent Court or authority. This contention of the petitioner cannot be accepted. The Labour Court gets jurisdiction to adjudicate an application or a claim for monitory benefit under Section 33-C(2) of the Industrial Dispute Act if the right on the basis of which the monetary benefit is claimed is an existing legal right, enforceable in law and the only relief claimed is that executing right which is already existing between the parties either by virtue of the contract of appointment and agreement or by an order passed by the Court of law or any other competent authority. What is prohibited under Section 33-C (2) is creation of right by the Labour Court at first instance and, thereafter directing for its quantification and payment in terms of money. That being the legal position, it is not necessary that in every proceedings under Section 33-C(2) there should be an order of a Court or authority, which is put to execution. The workman concerned can get a right existing in his favour legally enforced by resorting to such proceedings, if it is established that the claim or benefit is based on a right which is already available to the workman by virtue of some contract/agreement or order. In the present case the workman worked for by virtue of the contract of service between the parties, is engaged to work as Printing Operator for monthly salary of Rs.4,000/- and when the amount payable in pursuance to contract of service is not paid inspite of work done in furtherance to this contract, he sought for payment and bonus in accordance to statutory rules and unpaid earned leave as per the contract of service. Accordingly, it was a case where the right of the employee to receive the benefit was already existing by virtue of contract entered into between parties or by virtue of statutory provisions, i.e.. the Payment of Bonus Act and as this existing benefit was computed in terms of money by 5 the Labour Court exercising jurisdiction in proceedings under Section 33-C (2). It is not a case where Labour Court first created the right in favour of workman and thereafter directed for its payment. On the contrary it is case where the right was already existing by virtue of contract of service and it is this contract or right which has been executed by that Labour Court. That being so, I am of the considered view that in exercising jurisdiction under Section 33-C(2) the Labour Court has not committed any error and first contention advanced by Shri Rajesh Mindiretta is devoid of substance.
8. As far as the second ground is concerned, records indicate that the petitioner was proceeded ex-party, the employee concerned Shri Babu Lal Rajak entered to witness box gives his statement, in support of his contention and exhibit produced various documents which is marked as P-1, P-2 & P-3 and it is on the basis of these evidence and material that have came on record that claim adjudicated. As the claim adjudicated on the basis of evidence and material available on record after examining the evidence in detail, the order passed by the Labour Court does not call for any interference, as it is on the basis of a claim established on the evidence and material available on record.
9. Accordingly, in the facts and circumstances of the case I see no ground to interfere into the matter, as Labour Court has directed for payment of amount which has determined on due appreciation of evidence available on record.
10. Accordingly, finding no merit the petition is dismissed.
(Rajendra Menon) Judge ss*