Delhi District Court
H. K. Mishra vs M/S. Sun Chem Pvt. Ltd. Lca No. 12/08 on 21 December, 2013
H. K. Mishra Vs M/s. Sun Chem Pvt. Ltd. LCA No. 12/08
BEFORE SH. ANAND SWAROOP AGGARWAL: PO LC - XI:
KARKARDOOMA COURTS: DELHI
LABOUR COURT APPLICATION (LCA) No. 12/08.
UNIQUE CASE ID No. 02402C0064402010.
In the matter of:
H. K. Mishra S/o Sh. K. K. Mishra
R/o. H. No. 1758, Multani Mohalla, Rani Bagh
Delhi - 110034
Also at: L - 194, Jalwayu Vihar
Sector - 25, NOIDA, UP 201301.
....Applicant/workman.
V/s.
M/s Sun Chem Pvt. Ltd.
F2, D. S. I. D. C. Industrial Complex,
Rohtak Road, Nangloi, Delhi - 110 041.
...Management
Date of Institution : 02.05.2008.
Date of reserving for order : 18.12.2013.
Date of order : 21.12.2013.
Application under Section 33C (2) of the Industrial Disputes Act, 1947 for recovery of money.
JUDGMENT :
1. In this application under Section 33C (2) of the Industrial Disputes Act, 1947 applicant/workman alleged/pleaded as under:
(i) Applicant/workman joined the services of the management in the month of November, 1985 and was doing the job of marketing besides the clerical duties such as to prepare bills, maintaining attendance register, to do dispatch work and also other misc. jobs.
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(ii) Last wages drawn by the applicant/workman were Rs.3500/ per month.
(iii) The management terminated the services of the applicant/workman w.e.f. 06.08.1997. The applicant/workman has not been paid wages for the period from 01.12.1996 to 06.08.1997 inspite of the best efforts made by the applicant/workman.
(iv) At the time of termination of service, 30 days leaves were lying at the credit of the applicant/workman for which after termination of service, applicant/workman is legally entitled the wages.
(v) The provisions of Payment of Bonus Act, 1965 are duly applicable to the management. Even earlier the management was duly paying the statutory bonus to all the employees but no bonus for the financial year 199697 was paid to the applicant/workman, whereas the management had already paid the minimum bonus @ 8.33% to all other employees. Hence, the applicant/workman is also entitled the bonus for the above mentioned financial year.
(vi) The applicant/workman earlier filed an application under Section 33C (2) of the Industrial Disputes Act, 1947 for the payment of the above mentioned dues before the Presiding Officer, Labour Court No. III. The management in its reply disputed the claim of the applicant/workman. Labour Court No. III vide its order dated 16.02.2002 held that the said earlier application was not maintainable and if in the reference case the award goes in favour of the applicant/workman, applicant/workman has right to file fresh LCA for computation of earned wages, leave wages and bonus for the year 199697.
(vii) The reference of I. D. at that time was pending before Labour Court No. V and the said Court passed an award dated 30.05.2005 in favour of the Page 2 of 13 (ANAND SWAROOP AGGARWAL) PO LC - XI : KKD COURTS: DELHI H. K. Mishra Vs M/s. Sun Chem Pvt. Ltd. LCA No. 12/08 applicant/workman. Management challenged the said award dated 30.05.2005 by filing a Writ Petition before the Hon'ble High Court of Delhi. On 28.11.2007 a settlement was arrived in between the parties and the management agreed to pay a sum of Rs.95,000/ to the applicant/workman in terms of the impugned award and management made the payment to the applicant on 12.12.2007 before the Hon'ble High Court of Delhi. The said settlement was only in respect of the amount awarded in favour of the applicant/workman and not in respect of the other dues. Since the award was passed in favour of the applicant/workman hence the applicant/workman has a full right to file the present claim.
With these averments, applicant/workman has claimed his entitlement to the following dues: Sl. No. Particulars Amount (Rs.) 01 Earned wages w.e.f. 01.12.1996 to 06.08.1997 Rs.28,702/ 02 30 days leave wages Rs.03,500/ 03 Bonus for the year 1996 - 97 @ 8.33% Rs.03,500/ Total Rs.35,702/
2. The management in its written statement has taken a preliminary objection that claim for earned wages, leave as well as for bonus cannot be claimed under Section 33C (2) of the Industrial Disputes Act, 1947 as these items are covered under Schedule III of the Industrial Disputes Act, 1947 and jurisdiction of this Labour Court is barred with regard to these items. As per management there are different statutes available for remedy in case of items claimed by the applicant/workman and applicant/workman should go to the proper forum which is Page 3 of 13 (ANAND SWAROOP AGGARWAL) PO LC - XI : KKD COURTS: DELHI H. K. Mishra Vs M/s. Sun Chem Pvt. Ltd. LCA No. 12/08 authority under the prescribed Acts for payment of wages and bonus, and appropriate authority is Dy. Labour Commissioner of the appropriate Government Further management has taken preliminary objection that mandatory demand notice before filing a claim under the Industrial Disputes Act, 1947 has not been sent to the management and, therefore, this application is liable to be rejected. ON MERITS, management has alleged that applicant/workman has already received his wages from 01.12.1996 to 06.08.1997. Also management has denied the averments of applicant/workman that he was not paid wages for a long period i.e. 01.12.1996 to 06.08.1997 for 8 months, wages for leave and the bonus for the financial year 1996 97. Management has also denied the averments of the applicant/workman that settlement was arrived only in regard to award and not in regard to other dues. As per management the averments made by applicant/workman regarding previous litigation between the parties are matter of record.
3. Despite opportunity given, applicant/workman did not file rejoinder to the written statement of the management.
4. Vide order dated 16.09.2011, ld. predecessor of this court framed the following issues :
1. Whether the claimant is entitled to receive any amount? If yes, what amount? OPW.
2. Relief, if any.
5. Applicant/workman appeared in the witness box as WW1 H.K. Mishra and his evidence was closed on 20.12.2012 on the statement of Mr. R.K. Sahni, Advocate. Management examined MW1 Mr. S.K. Jain Director of the Page 4 of 13 (ANAND SWAROOP AGGARWAL) PO LC - XI : KKD COURTS: DELHI H. K. Mishra Vs M/s. Sun Chem Pvt. Ltd. LCA No. 12/08 management and closed its evidence on 08.05.2013.
6. I have heard Mr. R.K. Sahni, Advocate for the applicant/workman and Sh. O.P. Tiwari, Advocate for the management. Ld. counsel for the management relied upon case laws reported as : (i) Tara & Ors. vs. Director, Social Welfare & Ors. 1998 LLR 882; (ii) Searsole Chemicals Limited vs. H.C. Shah & Ors. MANU/MH/0391/1988; (iii) Gulabdevi Memorial Hospital Trust vs. Presiding Officer, Labour Court and Anr. MANU/PH/0167/1993; (iv) Union of India Vs. Babu Lal MANU/DE/0195/1997; and (v) H.P. State Electricity Board And ..... vs. Ranjeet Singh & Ors. (2008) 4 SCC 241. Material available on record is carefully perused.
7. Management in this case has raised a preliminary objection as regards maintainability of the claims made by the applicant/workman as regards earned wages, leave encashment and bonus through an application U/s. 33C (2) of the Industrial Disputes Act, 1947. As per management all these items are covered under Schedule III of the Industrial Disputes Act, 1947 and jurisdiction of the Labour Court is barred with regard to these items. Section 33C(2) of the Industrial Disputes Act, 1947 falls in Chapter VII which deals with MISCELLANEOUS provisions in the Industrial Disputes Act, 1947. Section 33 C(2) of the Industrial Disputes Act, 1947 reads as under : Section 33C (2) : "Where any applicant/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 Page 5 of 13 (ANAND SWAROOP AGGARWAL) PO LC - XI : KKD COURTS: DELHI H. K. Mishra Vs M/s. Sun Chem Pvt. Ltd. LCA No. 12/08 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."
At the outset it is noted that the scope of Section 33C(2) of the Industrial Disputes Act, 1947 is indeed limited in that the right or the benefit which is sought to be computed in the proceedings thereunder must be an existing right, that is to say, a right already adjudicated upon or provided for. In other words it is only an existing right that can constitute the foundation of a claim U/S. 33C(2) of the Industrial Disputes Act, 1947. It is further noted that applications moved U/S. 33 C(2) of the Industrial Disputes Act, 1947 are to be decided by such Labour Court as may be specified in this behalf by the appropriate Government U/S. 33C(2) of the Industrial Disputes Act, 1947. Power has been conferred on the Labour Court only and not on the Tribunals constituted U/S. 7A of the Industrial Disputes Act, 1947. U/S. 7 of the Industrial Disputes Act, 1947 Labour Court has jurisdiction with regard to matters as prescribed in the Second Schedule and for performing such other functions as may assigned to them under the Industrial Disputes Act, 1947. Tribunals constituted U/S. 7A of the Industrial Disputes Act, 1947 have the jurisdiction regarding matters specified in Second Schedule or Third Schedule and for performing such other functions as may be assigned to them under the Industrial Disputes Act, 1947. The jurisdiction as is referred to in Section 7 or 7A of the Industrial Disputes Act, 1947 is of significance for the appropriate Page 6 of 13 (ANAND SWAROOP AGGARWAL) PO LC - XI : KKD COURTS: DELHI H. K. Mishra Vs M/s. Sun Chem Pvt. Ltd. LCA No. 12/08 Government while making a reference U/S. 10 of the Industrial Disputes Act, 1947. Section 33C(2) of the Industrial Disputes Act, 1947 does not make any reference to Schedule II or Schedule III of the Industrial Disputes Act, 1947. Section 33C(2) of the Industrial Disputes Act, 1947 is applicable when applicant/workman is entitled to receive any money or any benefit which is capable of being computed in terms of money. On what account money is recoverable by applicant/workman from the employer is not of much relevance, so far as Section 33C(2) of the Industrial Disputes Act, 1947 is concerned. Therefore, Section 33 C(2) of the Industrial Disputes Act, 1947 has to be read independently and unaffected by the contents of Schedule II or Schedule III of the Industrial Disputes Act, 1947. In this background it is totally immaterial whether the items with regard to which claim has been made in an application U/S. 33C(2) of the Industrial Disputes Act, 1947 fall in Schedule II or Schedule III of the Industrial Disputes Act, 1947. Reliance by ld. counsel for the management on the judgment of H.P. State Electricity Board And...... vs. Ranjeet Singh & Ors. (supra) is of no help to him in as much as observations in the said judgment regarding the claim of bonus has been made on a reference case and not on an application U/S. 33C(2) of the Industrial Disputes Act, 1947.
Full Bench of Hon'ble Bombay High Court in case law reported as Kohinoor Tobacco Products Pvt. Ltd. Vs. Presiding Officer, Second Labour Court and Ors. MANU/MH/0298/1985 has ruled out that depending upon what the actual controversy between the parties is, proceedings for recovery of bonus under Section 33C(2) of the Industrial Disputes Act, 1947 are maintainable. Also it is observed that the Payment of Bonus Act, 1965 is complete Code as far as the right Page 7 of 13 (ANAND SWAROOP AGGARWAL) PO LC - XI : KKD COURTS: DELHI H. K. Mishra Vs M/s. Sun Chem Pvt. Ltd. LCA No. 12/08 to bonus is concerned. It is not a complete Code as far as the remedies are concerned. Application under Section 33C(2) of the Industrial Disputes Act for claiming bonus under Section 10 of the Industrial Disputes Act is maintainable. In my considered opinion, so far as the claim of the applicant/workman raised through an application U/s. 33C(2) of the Industrial Disputes Act, 1947 is for enforcement of existing right of the applicant/workman which is capable of being computed in monetary terms, application U/s. 33C(2) of the Industrial Disputes Act, 1947 is maintainable, even if same pertains to items as mentioned in Schedule III of the Industrial Disputes Act, 1947. Also it is noted that whether or not right claimed through such an application is an existing right or not is to be decided by the court on the basis of actual controversy involved in the facts and circumstances of each individual case. Accordingly, the objection raised by the management is held to be without any merits and same is overruled.
8. My issuewise findings are as under : ISSUES NO. 1 : "Whether the claimant is entitled to receive any amount? If yes, what amount? OPW."
Applicant/workman in this case has raised a claim to the tune of Rs. 28,702/ for earned wages from 01.12.1996 to 06.08.1997. I have perused the award dated 30.05.2005 passed in I.D. No. 486/98 between the applicant/workman and the management. Also I have perused the order dated 28.11.2007 passed by the Hon'ble Delhi High Court in W.P. (C.) 4603/2007 vide which above award dated 30.05.2005 was challenged. Vide order dated 28.11.2007 a settlement was arrived at between the parties as regards to the claims of the applicant/workman under the Page 8 of 13 (ANAND SWAROOP AGGARWAL) PO LC - XI : KKD COURTS: DELHI H. K. Mishra Vs M/s. Sun Chem Pvt. Ltd. LCA No. 12/08 award dated 30.05.2005. Award dated 30.05.2005 was for the period from 06.08.1997 till the date of superannuation of applicant/workman on 30.07.2004. Claims made in the applicationinhand pertains to the period prior to 06.08.1997. Accordingly it is held that claims made in the applicationinhand were not settled vide order dated 28.11.2007 passed by the Hon'ble Delhi High Court.
The case of management is that applicant/workman has been paid wages for the aforesaid period vide documents Ex. WW1/M1x and Ex. WW1/M2x. WW1 H.K. Mishra in his crossexamination has deposed as under :
".....It is correct that I had received salary for the month of July, 1997 before the labour inspector on 06.01.1998. Vol. I received the aforementioned salary under protest to sustain my life. It is correct that the documentary Ex. WW1/M1x bears my signatures at point A and I made the signatures under protest. It is correct that I have not mentioned the fact that I had already received my salary for the month of July, 1997. Vol. I received the said salary on the asking of the Labour Inspector Sh. R.K. Sharma....".
This claim petition was filed on 02.05.2008. Admittedly applicant/workman received salary for the month of July, 1997 on 06.01.1998, although under protest. But still applicant/workman has raised claim for salary for the period from 01.12.1996 to 06.08.1997 in this application. To my mind, to be fair enough, applicant/workman must have mentioned the factum of recovery of salary for July, 1997 on 06.01.1998, although under protest, in the application in hand.
In his crossexamination the applicant/workman was crossexamined as regards complaint, if any, made by him before the labour authority on account of alleged nonpayment of salary for the aforesaid period by the management to him. In his crossexamination applicant/workman has deposed that a complaint was Page 9 of 13 (ANAND SWAROOP AGGARWAL) PO LC - XI : KKD COURTS: DELHI H. K. Mishra Vs M/s. Sun Chem Pvt. Ltd. LCA No. 12/08 made by him before the Labour Department for nonpayment of wages in time and deposed that the said complaint is Ex. WW1/4. Ex. WW1/4 in fact is earlier labour court application filed by the applicant/workman against the management and it is not a complaint made by workman to labour authority for non payment of salary in time to the workman.
Applicant/workman in his cross examination has further deposed as under : ".......At this stage a bunch of documents Ex. WW1/M2x collectively having pages 21 is shown to this witness who after going through the same with vision glasses replied that I cannot admit or deny my signatures on the document Ex. WW1/M2x at points A to G (This witness further submits that he cannot see properly despite his vision glasses). I cannot see and admit or deny. It is wrong to suggest that I am not admitting my signatures deliberately......"
Management is relying upon document Ex. WW1/M2x to show the payment of salary for the month of December, 1996 to June, 1997 to the applicant/workman. Applicant/workman has neither admitted nor denied his signatures at points A to G on Ex. WW1/M2x. However, applicant/workman has further deposed that he cannot see properly without his vision glasses. He further replied that he cannot see and admit or deny. In my considered opinion, by making above referred depositions applicant/workman has in fact avoided to identify his signatures on Ex. WW1/M2x. According to the stand of the applicant/workman that he cannot see properly despite the fact that he was wearing vision glasses, does not appear to be plausible. It is not the case here that applicant/workman is an illiterate person having nothing to do with reading or writing. Here the Page 10 of 13 (ANAND SWAROOP AGGARWAL) PO LC - XI : KKD COURTS: DELHI H. K. Mishra Vs M/s. Sun Chem Pvt. Ltd. LCA No. 12/08 applicant/workman was doing the clerical as well as marketing job with the management. In such circumstances, the possibility of applicant/workman wearing such vision glasses, and even after wearing of wearing glasses applicant/workman would not be able to read/ identify his signatures is the least. May be that signatures on Ex. WW1/M2x at points A to G are found to be having different appearance, but that does not necessarily mean that the applicant/workman did not sign the same in as much as workman in his cross examination, when confronted with signatures at points A to G on Ex. WW1/M2x, has not specifically and empathetically deposed that signatures at points A to G on Ex. WW1/M2x are not pertaining to him. In the totality of the facts and circumstances of this case, it is observed that the possibility of applicant/workman's receiving the salary vide Ex. WW1/M2x cannot be ruled out altogether. Admittedly, the applicant/workman has received salary till July, 1997. By Ex. WW1/M2x he can be said to have received salary from December, 1996 to June, 1997. However, applicant/workman is entitled to recover his six days salary for the month of August, 1997 which come out to Rs.700/.
Applicant/workman is also claiming 30 days leave wages and bonus for the year 199697 @ 8.33%. Here it is not the stand of the management that applicant/workman is not entitled to leave encashment and bonus. In fact management is denying the averments of the applicant/workman that he was not paid the wages for leave and bonus for the financial year199697. This means that stand of the management is that applicant/workman has been paid leave wages and the bonus for the financial year 199697. When entitlement of the applicant/workman to leave wages and the bonus for the year 199697 has not been Page 11 of 13 (ANAND SWAROOP AGGARWAL) PO LC - XI : KKD COURTS: DELHI H. K. Mishra Vs M/s. Sun Chem Pvt. Ltd. LCA No. 12/08 disputed by the management and in fact the management is taking the stand that money against the leave encashment and bonus for the financial year 199697 has already been paid to the applicant/workman by management, application U/s. 33C (2) of the Industrial Disputes Act, 1947 is maintainable under such circumstances qua claims towards bonus and leave encashment. In this case management has not produced any proof of payment of leave encashment and bonus for the year 199697. Accordingly, in my opinion management is liable to pay encashment to the tune of Rs.3,500/ and bonus for the year 199697 @ 8.33% to the tune of Rs. 3,500/. In the facts and circumstances of this case, it is immaterial that the applicant/workman has not filed any proof to show that 30 days leave were lying to his credit in as much as no such stand was taken by the management in its written statement. The only stand taken by the management in its written statement is that payment in this regard has been made to applicant/workman. Accordingly applicant/workman is held to be entitled to Rs. 700/ towards six days wages for the month of August, 1997 plus Rs.3,500/ towards leave encashment for 30 days and Rs.3,500/ towards bonus for the financial year 199697. Thus workman is held to be entitled to recover Rs.7,700/ from the management. Issue no. 1 stands decided accordingly.
ISSUE NO. 2 : Relief, if any.
In view of my findings on issue no. 1, applicant/workman is held to be entitled to recover a sum of Rs.7,700/ from the management.
9. Further a sum of Rs.5,000/ is allowed to the workman as cost of litigation payable to the workman by the management.
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10. Applicationinhand stands disposed off accordingly.
11. A copy of the judgment be sent to the concerned Office of the Deputy Labour Commissioner for necessary action.
12. File be consigned to Record Room after completing due formalities. PRONOUNCED IN THE OPEN COURT ON 21.12.2013.
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