Delhi District Court
Sh.Prakash Singh vs M/S P.K Hydraulic on 16 May, 2012
1/9
IN THE COURT OF SH.S.S.MALHOTRA, PRESIDING OFFICER LABOUR COURT
IX, KARKARDOOMA COURTS/ DELHI
ID no.572/11
Unique case I.D no.02402C0335552011
Sh.Prakash Singh
s/o Sh.Roopa Singh
B118 A, Rajiv Nagar, Delhi
c/o Engineering Workers Lal Jhanda Union,
C12, Ramgarh, G.T Karnal Road,
Delhi33 Workman
Vs
M/s P.K Hydraulic,
A96/7, Wazirpur Industrial Area,
Delhi52 Management
Date of Institution : 04.11.2011
Date on which order is reserved: 16.05.2012
Date of order : 16.05.2012
ORDER
16.05.2012 1 Vide this order, I shall dispose off the preliminary issue as framed by this court with respect to maintainability of the present claim filed by the claimant directly u/s 10(4) A of the I.D Act after the Central amendment in section 2 (A) of the I.D Act.
Prakash Singh V P K Hydraulic 2/9 "Whether the present claim is not maintainable because of amendment in the central Act in section 2(A) r/w section 10(4) A of the I.D Act? OP parties. 2 Before disposing off the present matter, brief facts as stated by the claimant in nutshell are that the workman has filed the present claim stating therein that he had been working with the management since April, 2003 at the post of 'turner' and his last drawn salary was Rs.6000/ p.m . He was working honestly and diligently and there was no complaint against him regarding his performance but the management was not providing him all the legal facilities like wages slip, PF, leave book etc.and even facility of ESI and PF was introduced few years back after his persistent requests of the workman. Subsequently, the workman joined the Engineering Workers Lal Jhanda Union and who had taken up the matter for raising their salaries and for introduction of new ESI cards and complaint was filed against the management with EPF Authorities who visited the premises and inspected the records. The management therefore, became annoyed and vindictive towards the workman and when the workman reported for duty on 15.1.2011, he was not allowed to join his services and thereafter terminated him illegally on the same day without giving any showcause notice, without conducting any inquiry and also without paying the retrenchment compensation which is violation fo section 25 F of the I.D Act, 1947. The workman thereafter served a notice through his union on 22.9.2011 asking them to reinstate him with full back wages and also wrote a complaint to the Assistant Labour Commissioner but the management has neither Prakash Singh V P K Hydraulic 3/9 complied with the said notice nor paid the earned salary for the month of December, 2010 and January, 2011 and as such the workman has filed the present claim with a prayer that the management be directed to reinstate him with full back wages and continuity of service alongwith other benefits.
3 Management was served and it has filed the written statement taking preliminary objections that the statement of claim has been filed before the Labour Court without exhausting remedy for 45 days of conciliation proceedings before the Conciliation Officer which fact goes to the root of Jurisdiction and, therefore, this court may dismiss the present suit by framing up of a preliminary issue. It is further stated that no demand notice was ever served and as such the present dispute is not an Industrial Dispute for want of adjudication and even otherwise the services of the claimant have never been terminated and he himself has started absenting from his duty. On merits, it is denied that the workman was working as a 'turner' and his last drawn salary was Rs.6000/p.m and his services were terminated illegally on 15.1.2011. It is submitted that the claimant was working with the management since 2.3.06 and his last drawn salary was Rs. 5850/ p.m. It is also submitted that the last working date of the workman was 9.11.2010 and on 10.11.2010 which was a a weekly off of the management and from 11.11.2010, the workman started absenting from his services. He came to the management on 24.1.2011 and tendered his resignation before the management and as such all the facts of the claim are denied word by word. Fact with respect to terminating the services or with respect to Prakash Singh V P K Hydraulic 4/9 approaching the Labour Court or serving notice upon them are denied . It is stated that the workman was otherwise gainfully employed and , therefore, the present claim is liable to be dismissed.
4 Rejoinder was filed in which contents of the written statement were controverted and the facts of the statement of claim were reaffirmed and reiterated as correct. 5 After completion of the pleadings, following issues were framed vide an order dt. 3.3.2012: 1 Whether the present claim is not maintainable because of amendment in the Central Act in section 2(A) r/w section 10(4) A of the I.D Act? OP Parties 2 Whether the workman himself has resigned after accepting the full and final settlement on 24.1.2011? OPM 3 Whether the services of the workman have been terminated illegally and/or unjustifiably by the management? OPW 4 Relief Issue no.1 was taken up as a 'preliminary issue'. I have heard arguments of the Ld.ARM. Ld.ARW has not turned up to argue the matter on 15.5.2012 nor on 16.5.2012.
6 I have perused the record. Initially in the I.D Act, 1947 every claim was to be filed before the Conciliation Officer first and it was the Conciliation Officer only who was referring the matter to Labour Courts. However, subsequently keeping in view the huge pendency before the Conciliation Officers and also keeping in view the rise in Prakash Singh V P K Hydraulic 5/9 filing of the proceedings before the Conciliation Officer, the Delhi State Government vide amendment in Industrial Disputes Act, 2003 introduced the provisions of section 10(4) A of the I.D Act thereby giving liberty to the workman that he may file the claim directly before the court so as to delay being caused in referring the matter to the Conciliation Officer first and also keeping in view the time taken by the Conciliation Officer, the amendment was brought in thereby giving liberty to the workman either to file directly before the Labour Court or to file conciliation proceedings before the Conciliation Officer. These amendments remained in force up to 2010 and Central Government vide amendment in Central Act on 15.9.2010 brought the amended provisions of section 2(A) of the I.D Act which made the conciliation proceedings mandatory prior to approaching the Labour Court.
7 Keeping in view these facts, present objection was taken up in the written statement and keeping in view the objection taken by the management, this issue was framed and was treated as a 'preliminary issue'.
8 The contention of the Ld.ARW is that this amendment in section 2(A) of the I.D Act on 15.9.10 is not having any effect on the State amendment in section 10(4) A of the I.D Act as by way of this amendment, the Central Government has not repealed the provisions of section 10(4) A of the I.D Act which amendment was brought by Delhi State in the year 2003.
Prakash Singh V P K Hydraulic 6/9 9 Ld.ARM on the other hand has argued that once the amendment has been made by the Central Government in the Industrial Disputes Act then this subsequent amendment by the Central Government in the Industrial Disputes Act had an overriding effect over the law enacted by State Legislature & as such the present claim as filed by the workman directly u/s 10(4) A of the I.D Act, as amended by Delhi Government is not maintainable.
10 Keeping in view the rival contentions of both the parties, court is of the opinion that this controversy can be disposed off with the help of provisions as enumerated in section 10(4) A , section 2(A) of the I.D Act and article 254 of the Constitution of India. 11 Section 10(4) A and section 2(A) of the I.D Act as amended upto date reads as under: 10(4)A: Notwithstanding anything contained in Section 9C and in this section, in the case of a dispute falling within the scope of section 2A, the individual workman concerned may, within twelve months from the date of communication to him of the order of discharge, dismissal, retrenchment or termination or the date of commencement of the Industrial Dispute(Delhi Amendment), Act, 2003 whichever, is later, apply in the prescribed manner, to the Labour Court or the Tribunal, as the case may be, for adjudication of the dispute and the Labour Court or Tribunal, as the case may be, shall dispose of such application in the same manner as a dispute referred under subsection(1)".
Prakash Singh V P K Hydraulic 7/9 12 After amendment of section 2 A, provisions of section 2 A(2) & 2A(3) were inserted which reads as under:
(2) Notwithstanding anything contained in section 10, any such workman as is specified in sub section (1) may, make an application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of forty five days from the date he has made the application to the Conciliation Officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an Industrial dispute referred to it by the appropriate Government.
(3) The application referred to in subsection (2) shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in subsection (1).
13 Section 10(4) A was inserted by State Government and it started with the words"
notwithstanding anything contained in section 9C". Section 2(A) (2) of the I.D Act was amended by Central Government and it also started with the words"
notwithstanding anything contained in section 10". Therefore, prima facie this court is of the opinion that the amendment brought by the Central Government impliedly nullifies the State amendment in section 10(4) A of the I.D Act.
Prakash Singh V P K Hydraulic 8/9 14 Looking it from different angle and with the help of article 254 of the Constitution of India, Act also supports the above reasoning. Article 254 of the Constitution of India reads as under:
254 Inconsistency between laws made by Parliament and laws made by the Legislature of States(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to one of the matters enumerated in the Concurrent list, then, subject to the provisions of Clause (2), the law made by parliament, whether passed before or after the law made by the Legislature of such State, or as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State.
Provided that nothing in this clause shall prevent parliament from enacting at any time any law with respect to the same matter including a law adding to, amending , varying or repealing the law so made by the Legislature of the State".
15 This Article is self explanatory and requires no interpretation and this court is of the opinion that the workman is unable to convince on merits that the amendment in section 2(A) of the I.D has not repealed the provisions of section 10(4) of the I.D Act.
Prakash Singh V P K Hydraulic 9/9 Therefore, preliminary issue is answered in negative. The claim is, therefore, dismissed. However, the workman is at liberty to file claim afresh after fulfilling the requisite formalities as provided in the Act.
File be consigned to the Record Room.
ANNOUNCED IN OPEN (S.S.MALHOTRA)
COURT ON 16th MAY , 2012 PRESIDING OFFICER
LABOUR COURTIX/KKD COURTS:DELHI
Prakash Singh V P K Hydraulic