Delhi District Court
Mahesh vs M/S Ramsawroop Das Subhash Chand Jain on 18 September, 2023
IN THE COURT OF MS. MANISHA TRIPATHY
PRESIDING OFFICER : LABOUR COURT-III
ROUSE AVENUE COURTS COMPLEX : NEW DELHI
CNR No.DLCT13-000989-2021
LC No.53/2021
Sh. Mahesh, S/o Sh. Chotelal,
(Aged about 47 years), Mobile No.9899848679
Adhar Card No.9044 9218 4172,
R/o House No.1011, Bhajan Pura, Delhi.
Through Sh. S. K. Bansal, Advocate,
Secretary : All India Foodgrain Kirana
Chemical and General Works Federation (Regd.),
100, Tilak Bazar, Delhi - 110006.
Mobile No.9899848679.
The requisite details of the workman in compliance of judgment
of Hon'ble High Court of Delhi titled as Director General of
Works (CPWD) Vs. Laljeet Yadav & Ors. W.P.(C) No.2540-
2021, DOD 16.07.2021 are as follows:
Permanent Address of the workman:
Detail not furnished.
Any other address of workman available on record:
Detail not furnished.
Name and Mobile Number of A.R. for workman:
Sh. Sudesh Bansal and Sh. Sanjeev Bansal,
Ld. AR for the workman.
Mobile Number : 9899848679.
Details of one of immediate family member of the workman:
Detail not furnished.
Aadhar Card and Phone Number of workman:
Adhar Card No.9044 9218 4172
Mobile No.9899848679.
...Workman.
(LC No.53/2021) (Sh. Mahesh Vs. M/s Swaroop Dass Subhash Chand Jain & Ors.) Page No.1 of pages 11
Versus
1.M/s Swaroop Dass Subhash Chand Jain, 4123, Gali Satte Wali, Nai Sarak, Delhi - 110006.
Owner Sh. Subhash Jain, Sh. Rahul Jain.
2. M/s Tarun Cards, 3949/2, Ishwar Market, Gali Satte Wali, Nai Sarak, Delhi - 110006.
Owner Sh. Subhash Jain, Sh. Rahul Jain.
3. Sh. Subhash Jain, Sh. Rahul Jain.
R/o A-46, Kamla Nagar, Near Jain Corner, Delhi - 110007.
(Ms. Vibha Padiyar, Authorized Representative of the Managements Mobile No. Detail not furnished.
Email address : Detail not furnished.) ...Managements.
Date of Institution of the case : 12.03.2021. Date on which reserved for Award : 14.08.2023. Date on which Award is passed : 18.09.2023.
-:O R D E R:-
1. This is an application under Section 33 C (2) of the Industrial Disputes Act 1947 filed on behalf of claimant Sh.
Mahesh S/o Sh. Chote Lal against the managements.
2. Brief facts of the case necessary for adjudication of the present application as alleged by claimant are that he had been working with the managements since 27.01.2001 on the post of helper at the last drawn monthly wages of Rs.9,500/- and he worked honestly and diligently to the entire satisfaction of both managements no.1 & 2 and thus has clean antecedent. The managements were not providing labour facilities such as (LC No.53/2021) (Sh. Mahesh Vs. M/s Swaroop Dass Subhash Chand Jain & Ors.) Page No.2 of pages 11 appointment letter, attendance card, leave book, pay slip, annual leave, casual leaves, overtime allowance, minimum wages, slip of EPF, ESIC card etc. and on raising oral demands for the said facilities, the managements got annoyed and first started harassing him and thereafter, when he persisted with his demands for these legal facilities, they started to withhold his earned wages and kept on taking work from him giving false assurances. When he insisted for release of withheld wages, he was terminated from the services on 01.03.2021 without clearing his due wages. Thereafter, on the same day i.e. 01.03.2021 he sent a Demand Notice to the managements, through speed post, but managements did not reply to the same. He prayed for direction to managements to pay outstanding earned wages, overtime allwance, leave allowance, minimum wages and arrears of minmum wages alongwith interest to him, as per calculation chart below:-
Sl. Particulars Amount No. 1 Arrear of earned wages:-
From 01.09.2010 to 28.02.2021 @ Rs.14,842/- as per minimum wages declared by the government in September 2020 and Rs.15,492/- thereafter. Rs.92,302.90/-
2 Overtime wages :-
From 01.09.2010 to 28.02.2021 at the rate of double the monthly wages for overtime of 4 hours per day at the rate of fixed minimum wage of Rs.14,842/-
for September 2020 and (LC No.53/2021) (Sh. Mahesh Vs. M/s Swaroop Dass Subhash Chand Jain & Ors.) Page No.3 of pages 11 Rs.15,492/- thereafter. Rs.92,302/-
3 Amount of yearly holidays:-
45 days of paid annual leave for three years at the rate of minimum wage of Rs.15,492/-
per month. Rs.23,238/-
5 Outstanding bonus:-
Three years minimum bonus at
the rate of minimum wages of
Rs.15,492/- per month.
Rs.46,476/-
Total Rs.2,45,318/-
3. Notice of the application was issued to managements and accordingly managements appeared through Ms. Vibha Padiyar, Ld. AR for the managements and filed Written Statement.
4. In its Written Statement, the managements stated that the claimant has filed the claim petition against three managements namely M/s Swaroop Dass Subhash Chand Jain, M/s Tarun Cards and Sh. Subhash Jain and Sh. Rahul Jain and he claims to have worked with two difference firms under the name and style of M/s Swaroop Dass Subhash Chand Jain and M/s Tarun Cards but has not specified the duration of his employment with the either of these firms. It was further stated that the claim petition as filed by claimant under Section 33 C (2) of I.D. Act is not maintainable as there is neither any award in favour of the claimant nor there is any settlement between the claimant and the managements. It was further stated that there was no employer employee relationship between the claimant (LC No.53/2021) (Sh. Mahesh Vs. M/s Swaroop Dass Subhash Chand Jain & Ors.) Page No.4 of pages 11 and the managements as claimant was never an employee working under the managements. The managements denied that the claimant was working under them at their addresses as helper since 27.01.2001 on the monthly salary of Rs.9,500/-. It was stated that since the claimant never worked under the managements, therefore, question of termination of his services on 01.03.2001 does not arise. The managements also denied receipt of legal demand notice as well as the claim of the claimant to the tune of Rs.2,46,318/- or any other amount whatsoever.
5. In rejoinder to the Written Statement of the managements, all the averments of the said managements were denied and that of Statement of claim were reaffirmed by the claimant.
6. Thereafter, case was fixed for admission denial of documents and framing of issues, however, after careful perusal of record, the case was fixed for arguments on maintainability of the application under Section 33 C (2) of I.D. Act.
7. I have heard the arguments advanced by Ld. ARs for the parties on the maintainability of the instant application and given thoughtful consideration to the submissions made and also have also carefully perused the record.
8. The maintainability of the present application u/s 33 C(2) of the Act has been challenged by the managements.
8.1 It has been submitted on behalf of the managements that the claimant has never been its employee and no employer- employee relationship ever existed between the claimant and the (LC No.53/2021) (Sh. Mahesh Vs. M/s Swaroop Dass Subhash Chand Jain & Ors.) Page No.5 of pages 11 managements and as such until and unless this disputed question of relationship is adjudicated in a separate claim under s. 2A or s. 10 (4) (A) of the act and a finding is returned in such proceedings, no claim of money/ benefit is maintainable by the claimant against managements under proceedings under section 33C(2) of the Industrial Dispute Act, 1947.
8.2 At this stage, it will be useful to have a look at the relevant provision of law, which is reproduced herein below for easy reference:-
"Section 33C : Recovery of Money Due from an Employer -
(1) x x x (2) 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).
(3) x x x (4) x x x (5) x x x"
8.3 In Chief Mining Engineer, East India Coal Co. Ltd. v. Rameshwar & ors. (1968) 1 SCR 140 Hon'ble Supreme Court highlighted the ambit and scope of section 33C(2) of the Industrial Disputes Act and made following pertinent observations:-
"It is clear that the right to the benefit which (LC No.53/2021) (Sh. Mahesh Vs. M/s Swaroop Dass Subhash Chand Jain & Ors.) Page No.6 of pages 11 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 an industrial workman and his employer..."
8.4 The decision was thereafter followed by Hon'ble Court in Central Inland Water Transport Corpn. Ltd. v. Workmen (1974) 4 SCC 696. The relevant extract from the judgment is reproduced herein below :-
"12. It is now well-settled that a proceeding under section 33C (2) is a proceeding, generally, in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to a workman from his employer, or if the workman is entitled to any benefit which is capable of being computed in terms of money, the Labour Court proceeds to compute the benefit in terms of money. This calculation or computation follows upon an existing right to the money or benefit, in view of its being previously adjudged, or, otherwise, duly provided for. In Chief Mining Engineer, East India Coal Co. Ltd. v. Rameshwar & ors., it was reiterated that proceedings under 33C (2) are analogous to execution proceedings and the Labour Court called upon to compute in terms of money the benefit claimed by workmen is in such cases in the Position of an executing court. It was also reiterated that the right 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 (LC No.53/2021) (Sh. Mahesh Vs. M/s Swaroop Dass Subhash Chand Jain & Ors.) Page No.7 of pages 11 an industrial workman and his employer."
"13. In a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of (i) the plaintiff's right to relief; (ii) the corresponding liability of the defendant, including, whether the defendant is, at all, liable or not; and (iii) the extent of the defendant's liability, if any. The working out of such liability with a view to give relief is generally regarded as the function of an execution proceeding. Determination No. (iii) referred to above, that is to say, the extent of the defendant's liability may sometimes be left over for determination in execution proceedings. But that is not the case with the determinations under heads
(i) and (ii). They are normally regarded as the functions of a suit and not an execution proceeding. Since a proceeding under section 33C (2) is in the nature of an execution proceeding it should follow that an investigation of the nature of determinations (i) and
(ii) above is, normally, outside its scope. It is true that in a proceeding under section 33C (2), as in an execution proceeding, it may be necessary to determine the identity of the person by whom or against whom the claim is made if there is a challenge on that score. But that is merely 'Incidental'. To call determinations (i) and (ii) 'Incidental' to an execution proceeding would be a perversion, because execution proceedings in which the extent of liability is worked out are just (LC No.53/2021) (Sh. Mahesh Vs. M/s Swaroop Dass Subhash Chand Jain & Ors.) Page No.8 of pages 11 consequential upon the determinations
(i) and (ii) and represent the last stage in a process leading to final relief.
Therefore, when a claim is made before the Labour Court under section 33C (2) that court must clearly understand the limitations under which it is to function. It cannot arrogate to itself the functions-say of an Industrial Tribunal which alone is entitled to make adjudications in the nature of determinations (i) and (ii) referred to above, or proceed to compute the benefit by dubbing the former as 'Incidental' to its main business of computation. In such cases, determinations (i) and (ii) are not 'Incidental' to the computation.
The computation itself is consequential upon and subsidiary to determinations (i) and (ii) as the last stage in the process which commenced with a reference to the Industrial Tribunal. It was, therefore, held in State Bank of Bikaner and Jaipur v. R. L. Khandelwal that a workman cannot put forward a claim in an application under section 33C (2) in respect of a matter which is not based on an existing right and which can be appropriately the subject matter of an industrial dispute which requires a reference under Section 10 of the Act." 8.5 The law pronounced in the above said judgment has since been consistently followed by the Hon'ble Court in later decisions. In Municipal Corporation Of Delhi vs Ganesh Razak, 1995 SCC (1) 235 the legal principal on the issue was summed up as follows :-
" ..where the very basis of the claim or the entitlement of the workmen to a (LC No.53/2021) (Sh. Mahesh Vs. M/s Swaroop Dass Subhash Chand Jain & Ors.) Page No.9 of pages 11 certain benefit is disputed, there being, no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under Section 33C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under section 33C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power under Section 33C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution."
8.6 Now I shall examine the facts of the present case in light of the settled legal position as stated above. In the instant case, the claimant has claimed that he has worked as employee of managements w.e.f. 27.01.2001 as a helper continuously till the date of his alleged termination of services on 01.03.2021. Managements have claimed that they never had any kind of employer-employee relationship with the claimant for any period whatsoever and as such had no liability whatsoever to pay any amount to the claimant towards earned wages, bonus, leave wages, over time and arrears of minimum wages or otherwise. Managements claimed that the claimant was never their employee at any point of time. Thus, there is apparent dispute (LC No.53/2021) (Sh. Mahesh Vs. M/s Swaroop Dass Subhash Chand Jain & Ors.) Page No.10 of pages 11 on the issue of relationship between the claimant and the managements as well as entitlement of the claimant to receive any amount from the managements. There is nothing on record to suggest that prior to filing of the present application, the claimant has ever raised any Industrial Dispute against the managements to get the disputed question of relationship as well as entitlement to the benefits claimed by him adjudicated by the competent authority in appropriate proceedings. The claimant has failed to show any pre-existing right as defined in Section 33
(c) 2 of the I.D. Act, 1947 as admittedly there is no earlier adjudication in form of award or settlement or recognition by the employer to the benefits claimed by him. In view of the well settled position of law discussed above, this court doesn't have jurisdiction to first decide the claimant's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under section 33C(2) of the Act. Therefore, I hold that the present application/ petition filed by the claimant u/s 33-C(2) of the ID Act, 1947 is not maintainable.
9. The application filed by the claimant under Section 33- C (2) of the Industrial Disputes Act, 1947 (as amended up to date) is accordingly dismissed.
10. File be consigned to the record room after due compliance.
(Announced in the open Court on 18.09.2023) (MANISHA TRIPATHY) Presiding Officer Labour Court-III Rouse Avenue Courts, New Delhi (LC No.53/2021) (Sh. Mahesh Vs. M/s Swaroop Dass Subhash Chand Jain & Ors.) Page No.11 of pages 11