Delhi District Court
Shri Kislaya Chandra Jha S/O Shri Tej ... vs M/S Uni Air Cargo Pvt. Ltd on 4 April, 2015
IN THE COURT OF SHRI NARINDER KUMAR
ADDITIONAL DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER : LABOUR COURT-XIX
KARKARDOOMA COURTS : DELHI.
LCA No. 51/2011
Unique Case ID No. 02402C0 051822010
Shri Kislaya Chandra Jha S/o Shri Tej Narayan Jha
C/o Universal Prowtist Labour Federation (Regd.)
F-30/5, Opposite A-92,
Okhla Industrial Area Phase-2,
New Delhi - 110 020 ............Claimant
Versus
M/S Uni Air Cargo Pvt. Ltd.
A-111, Mahipalpur Extension
Road No. 4, Gali No. 10,
New Delhi - 110 037 ............Management
Date of institution of the case : 22.02.2010
Date of passing the Award : 04.04.2015
AWARD
Claimant named above, filed this statement of claim under Section
33C(2) of the Industrial Disputes Act (hereinafter referred to as the Act),
claiming certain dues/benefits from the management.
Case of claimant/workman :
2. In brief, case of the claimant, as per his statement of claim is that
he joined with the management as Cargo Assistant on 01.7.1993 and the last
drawn monthly wages, drawn by him were @ Rs.5000/-.
On 08.2.2007 while he was handling/loading a box weighing 1400 kgs, at
the godown of the management, his right foot got injured. Management
assured him of compensation but ultimately did not pay any amount.
It is case of the claimant that from time to time he has been raising
LCA No. 51/2011 1 of 11
demands like appointment letter, attendance card, payslip, yearly and casual
leave, overtime, bonus, leave book etc. but the management did not provide
him any such facility. Ultimately, on 01.6.2009, the management expelled him
from service without making him payment of wages for the month of May 2009,
dues towards overtime, amount due towards earned leave, bonus. He was not
served with any notice or paid any service compensation . As alleged by the
claimant, his services have been termination in violation of Section 25-F of the
Act.
As regards steps taken by him after termination of his service, workman
has alleged that he sent demand notice dt. 29.8.2009 to the management but
the management failed to give any response.
3. Claimant has alleged that the management has withheld his dues which
are as under :
1.Earned wages w.e.f. 01.5.2009 to 31.5.2009 @ Rs. Rs. 5,000/- 5,000/- per month
2. Leave wages for the last three years, i.e. @ 15 days per Rs. 7,500/-
year
3. Bonus for the last three years Rs.15,000/-
4. Overtime for the period 01.6.2006 to 01.6.2009 Rs.1,55,937/-
TOTAL Rs.1,83,437/- Version of Management :
4. In its written statement, management has pleaded that the management company was incorporated as a private limited company on 10.10.2001, although it started functioning from July 1996. In this way, management has denied the claim of claimant that he started working with the LCA No. 51/2011 2 of 11 management since 1993.
Case of management is that actually the claimant joined management in October 1996. He absented from duty w.e.f. 15.4.2010.
Management has denied the incident dt. 08.2.2007 while pleading that the claimant was not detailed for any loading/unloading of goods on that day. Rather, on that day, during the process of loading by the loading party of Param Cargo Movers, the claimant entered in drunken condition and a packet weighing 1400 kgs fell on his right leg. He was immediately removed to Indian Spinal Injury Centre, Vasant Vihar, New Delhi. The entire expenditure to the tune of Rs.1,55,000/- for treatment of the claimant was borne by the management.
After the claimant suffered injuries on 08.2.2007 in the manner indicated above, he remained on leave up to March 2008, i.e. for about an year. Payment of this period was made to the claimant at his residence. He joined office in April 2008. Upto 15.4.2009, his services were utilized for light duties.
5. Case of management is that the claimant was duly paid all his dues and other expenses upto 15.4.2009 and he acknowledged the same.
Management has denied to have removed the claimant from service but pleaded that he started absenting from duty from 15.4.2010, without intimation, and as such management has not violated any statutory provisions.
On the aforesaid pleas, management has prayed for rejection of the claim.
LCA No. 51/2011 3 of 11 Points for determination :
6. From the pleadings of the parties, following issues were framed on 29.7.2010 :
ISSUES :
1. Whether the workman is entitled to the amount claimed as acknowledged and pre-existing right? OPW
2. Relief.
Evidence :
7. In order to prove his case, workman has stepped into witness box as WW1 and tendered in evidence his affidavit Ex.WW1/A and documents Ex.WW1/1 to WW1/4.
On the other hand, management has examined MW1 - Shri Kuldeep Singh - its Director. MW1 has tendered in evidence his affidavit Ex.MW1/A and documents Ex.RW1/1 to RW1/5.
8. I have heard learned Authorized Representatives for the parties and gone through the records.
Discussion :
Issue no. 1Whether the workman is entitled to the amount claimed as acknowledged and pre-existing right? OPW
9. As noticed above, this is a case wherein workman has claimed recovery of wages for one month; amount due against earned wages for three years; bonus for three years and payment of overtime charges. In its written statement, management has disputed the claim of the workman on the plea that he is not entitled to any such amount.
Present claim u/s 33C(2) of the Act came to be instituted on 22.02.2010. As alleged by the workman himself, his services stood terminated w.e.f.
LCA No. 51/2011 4 of 11 01.06.2009.
10. Although, the claimant has testified in his affidavit that he is entitled to wages for the month of May 2009, earned wages as against earned leave for three years; bonus for three years and overtime for the month of June, he has not brought on record any material to suggest that any other employee of the management was ever paid bonus or overtime. He, admittedly, met with accident on 08.02.2007 in the course of employment and as such he remained on leave up to 31.03.2008. Workman has admitted in his cross examination that he joined management on 11.04.2008 and further that full salary was paid to him during his stay at his house, although, he did not perform any duty. It has also been admitted that for 18 months period of his stay at his house, he was paid salary by the management.
11. It is pertinent to mention that the management has examined MW1 Sh. Kuldeep Singh, its Managing Director. MW1 has tendered into evidence his affidavit Ex. MW1/A and documents Ex. RW1/1 to RW1/5.
Affidavit of MW1 is to the effect that after the injury suffered by the workman on 08.02.2007, he was removed to hospital and all his medical expenses were borne by the management. There is nothing on record to suggest that the workman had to incur any such expenditure for his medical treatment.
12. MW1 has testified in his affidavit that the workman was paid full salary at his house upto March 2008. He joined the company in April 2008 and according to the management, he so continued only upto 15.04.2009.
LCA No. 51/2011 5 of 11 MW1 has further testified disputing the claim of the claimant towards annual leave, bonus and overtime. It may be mentioned that statement of MW1 Sh. Kuldeep Singh has gone unchallenged for want of cross examination. The workman was offered ample opportunities for cross examination of MW1 but the opportunities were not availed of.
Since the workman has not led any cogent and convincing evidence regarding his entitlement to any amount towards annual leave, bonus or overtime, this court finds that workman is not entitled to annual leave, bonus and overtime.
13. In view of the fact the services of the workman, as per his own case stood terminated w.e.f. 01.06.2009 and having come across decisions in Union of India vs Kankuben, 2006 AIR(SC) 1784; State Bank of India vs Ram Chandra Dubey, 2001 (1) SCC 73; Municipal Corporation of Delhi vs Ganesh Razak and Another 1995 1 SCC 235; M/s Punjab Beverages Pvt. Ltd., Chandigarh vs Suresh Chand and Another (1978) 2 Supreme Court Cases 144 on the maintainability of suchlike claim where relationship between the parties already ceased to exist, this court raised the question as to the maintainability of this claim. Learned AR (W) referred to decision in Central Bank of India Ltd. vs P.S. Rajagopalan (1964) 3 SCR 140 and submitted that in view of this decision, present claim can safely be said to be maintainable.
14. 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 LCA No. 51/2011 6 of 11 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."
In case M/s. Punjab Beverages case (Supra), 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." In this regard reference may be made to decision in Chief Mining Engineer, East India Coal Co. Ltd. vs. Rameshwar (1968) 1 SCR 140.
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-
LCA No. 51/2011 7 of 11 matter of an industrial dispute in a reference under Section 10 of the Act. In this regard reference may be made to decision in State Bank of Bikaner and Jaipur vs. R.L. Khandelwal (1968) 1 LLJ
589. It was further observed that "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 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."
"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 LCA No. 51/2011 8 of 11 and has set aside that order and reinstated the workman."
In this regard, reference may also be made to decision in The Central Bank of India's case (supra) cited by Ld. AR(W) himself wherein it was held as under:
"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 as:
"We would, however, like to indicate some of the claims which 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 LCA No. 51/2011 9 of 11 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 C(2)."
15. Herein, it is the case of the workman himself that the management terminated his services w.e.f. 01.06.2009. In other words, relationship of workman and the management no more existed between the parties since 01.06.2009. In view of the above well settled law, the present claim that the workman continued to be workman of the employer and that he was entitled to the benefits claimed herein by way of pre existing right or benefit could not be made or adjudicated in the claim u/s 33C(2) of the Act.
Admittedly workman filed a separate claim u/s 10 (4A) of the Act on the same day i.e. 22.02.2010. In view of the well settled law, until adjudication of the Industrial Dispute u/s 10 (4A) of the Act, the workman could not ask labour court, by way of present claim/application u/s 33C(2), to regard his termination from services as wrongful and to compute his wages on its basis. In other words, present claim u/s 33C(2) would have been maintainable only if it was firstly proved by the workman in the industrial dispute u/s 10(4A) that the order of termination of his services passed by the management was void ab initio.
16. Accordingly, this court holds that the present claim u/s 33C(2) of the Act filed on 22.02.2010, when he also directly filed an industrial dispute u/s 10 (4A) LCA No. 51/2011 10 of 11 of the Act before this very court challenging termination of his services and claiming reinstatement in service with continuity in service, full back wages and all other consequential benefits, was not maintainable as on 22.02.2010. In view of above discussion, this issue is decided against the workman and in favour of the management.
Issue no. 2/Relief
17. In view of findings on issue no. 1 above, this claim filed by the workman deserves to be dismissed. Same is hereby dismissed.
Case file be consigned to Record Room.
ANNOUNCED IN OPEN COURT ON 4th Day of April 2015 (Narinder Kumar) Addl. District & Sessions Judge Presiding Officer Labour Court-XIX Karkardooma Courts, Delhi LCA No. 51/2011 11 of 11