Delhi District Court
Shri Rajperumal vs Jagprani Bandhu A Bulletin On Social ... on 20 May, 2015
IN THE COURT OF SHRI NARINDER KUMAR
ADDITIONAL DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER : LABOUR COURT-XIX
KARKARDOOMA COURTS : DELHI.
LCA No. 77/2014
Unique Case ID No. 02402C0 120982014
Shri Rajperumal,
S/o Sh. R. Munnu Swami,
R/o F-71, Poorbi Marg, Vasant Vihar,
New Delhi.
...........Workman
Versus
Jagprani Bandhu A Bulletin On Social Awareness,
At F-71, Poorvi Marg, Vasant Vihar, New Delhi-110057
Through its Founder and Editor Sh. J.N. Chaudhary.
..........MANAGEMENT
Date of institution of the case : 22.04.2014
Date of passing the award : 20.05.2015
AWARD
This is a Labour Claim Application (LCA) u/s 33 (C) (2) of Industrial
Dispute Act (hereinafter referred to Act) wherein the claimant has claimed
a sum of Rs. 5,34,017/- from the management named above.
In brief case of the claimant is that he got employed with the
management w.e.f. 26.12.2001 as Security Gaurd and his last drawn
monthly salary was @ of Rs. 2050/-, but the management did not provide
the salary from 26.12.2001 to 01.11.2008 and from 30.12.2008 the
management started paying him Rs. 2050/- per month only. He made
LCA No. 77/2014 1 Of 7
demands for payment of arrears of his salary as per minimum wages but
the management refused to pay the same.
Version of Management :
2. It is case of the management that workman was never in its
employment. As further claimed by the management the claimant was
actually employed as a security guard at his premises as security gaurd
for his personal security and security of the property. He was being paid
Rs 2000/- per month for each period of eight months. The claimant
refused to accept his salary for two months @ Rs 2050/-, so he had to
pay this amount to the claimant through Sh. H.G.H.S. Dhaliwal, IPS, Dy.
Commissioner of Police, South District, New Delhi. The claimant
encashed the same from Punjab National Bank and then refused to work
any further.
Respondent has further claimed that wife of the claimant was
working as a domestic help at F-3/10. The claimant never demanded any salary from him, as further claimed by the respondent so as to ultimately approach the SHO.
Respondent has also claimed that this is a false case put forth by the claimant in connivance with some criminal.
3. During pendency of this claim, respondent/management has filed application MA no. 68/15 raising objections to the maintainability of the claim u/s 33(C)(2) of the Act. The objection is that since no claim of amount of money has been adjudicated upon after determination of LCA No. 77/2014 2 Of 7 relationship of workman and employer between the parties. This claim is not maintainability and even this court has no jurisdiction to adjudicate the claim.
Despite opportunities claimant has not filed reply to the application filed by the respondent.
In support of the objections raised in the application filed by the respondent/management, reliance has been placed on : -
1. Union of India Vs. Kankuben since reported in 2006 (9) SCC 292
2. State Bank of India Vs. Ram Chandra Dubey since reported in 2001 (1) SCC 73
3. Municipal Corporation of Delhi Vs. Razak since reported in 1995 SCC (1) 235
4. Punjab Beverages Pvt Ltd., Chandigarh Vs. Suresh Chand & Ors since reported in 1978 (2) SCC 144 It may be mentioned here that the management filed an application u/o 7 Rule 11 CPC with prayer for rejection of the claim. Workman has not cared and dared to file reply to the application despite opportunities. . Points for determination :
4. From pleadings of the parties, following issue has been framed today:-
"Whether this claim is not maintainable u/s 33C(2) of the ID Act, in view of the objection raised by the management in the application that there is no pre-existing right or benefit of the claimant and no claim of any amount of money has been adjudicated upon after determination of relationship of workman and employer, and that the claim is liable to be rejected?"
LCA No. 77/2014 3 Of 7
5. Section 33C(2) of the Act reads as under:-
"Where any 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 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 it do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit."
6. In case M/s Punjab Beverages Pvt. Ltd., Chandigarh vs Suresh Chand and Another (1978) 2 Supreme Court Cases 144, it was observed as under:
"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.
It is not competent to the Labour Court exercising jurisdiction under Section 33C(2) to arrogate to itself the functions of an industrial tribunal and entertain a claim which is not based on an exiting right but which may appropriately be made the subject-matter of an industrial dispute in a reference under Section 10 of the Act."
It was further observed as under:-
"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 Section 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 LCA No. 77/2014 4 Of 7 Labour Court in an application under Section 33C(2) to disregard his dismissal as wrongful and on that basis to compute his wages. The application under Section 33C(2) would be maintainable only if it can be shown by the workman that the order of dismissal passed against him was void ab initio. Hence it becomes necessary to consider whether the contravention of Section 33C(2)(b) introduces a fatal infirmity in the order of dismissal passed in violation of it so as to render it wholly without force or effect, or despite such contravention, the order of dismissal may still be sustained as valid."
7. In this regard, reference may also be made to decision in Central Bank of India Ltd. vs P.S. Rajagopalan (1964) 3 SCR 140 it was held as under:
"The workman can proceed under Section 33C(2) only after the Tribunal has adjudicated, on a complaint under Section 33 A or on a reference under Section 10, that the order of discharge or dismissal passed by the employer was not justified and has set aside that order and reinstated the workman."
"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 Section 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 Section 33C(2)."
It was further observed:-
"We would, however, like to indicate some of the claims which LCA No. 77/2014 5 Of 7 would not fall under Section 33C(2), because they formed the subject matter of the appeals which have been grouped together for our decision along with the appeals with which we are dealing at present. 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 Section 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 preexisting contract, cannot be made under Section 33C(2)."
In this regard reference may also be made to decision in Chief Mining Engineer, East India Coal Co. Ltd. vs. Rameshwar (1968) 1 SCR 140, State Bank of Bikaner and Jaipur vs. R.L. Khandelwal (1968) 1 LLJ 589. In Union of India vs Kankuben, 2006 AIR(SC) 1784; State Bank of India vs Ram Chandra Dubey, 2001 (1) SCC 73.
8. Herein, as noticed above, claimant has claimed arrears of salary amounting to Rs. 5,34,017/-. Management has raised objection that the claimant was not entitled to ask for any claim after he was paid last two months's salary @ Rs. 2050/- and had refused to work any further expressing that he wanted to do business.
Workman has nowhere alleged that he raised any dispute before the Labour Commissioner or requested for any reference u/s 10 of the Act. It is also not his case that relationship of workman and employer still LCA No. 77/2014 6 Of 7 exists between him and the management.
9. In the given facts and circumstances and applying the well settled law, this court finds that this is a case where management has disputed entitlement of the workman to receive money, no relationship of employee and employer exists between the parties and no pre existing right has been got adjudicated u/s 10 of the Act, present claim is not maintainable u/s 33C(2) of the Act.
This issue is therefore decided against the workman. Conclusion
10. In view of the above findings under the preliminary objection, the claim of the claimant deserves to be rejected being not maintainable u/s 33 C(2) of the Act and the same is accordingly rejected. However, workman shall be at liberty to resort to appropriate remedy u/s 10 of the Act.
File be consigned to record room.
ANNOUNCED IN OPEN COURT ON 20th Day of May 2015 (Narinder Kumar) Addl. District & Sessions Judge Presiding Officer Labour Court-XIX Karkardooma Courts, Delhi LCA No. 77/2014 7 Of 7