Delhi District Court
Sh. Mohan vs M/S Hydmark Applicon on 24 September, 2009
LCA No. 16/2008
1
IN THE COURT OF SH. S.K. KAUSHIK,
ADDITIONAL DISTRICT & SESSIONS JUDGE,
PRESIDING OFFICER LABOUR COURT NO. XII,
KARKARDOOMA COURTS, DELHI
LCA No. 16/2008
INDUSTRIAL DISPUTE BETWEEN
Sh. Mohan
S/o Sh. Lalta Prasad,
R/o B - 161,
70 Futta Road,
Katariawali Gali,
Prem Nagar, Nangloi,
Delhi.
.........Workman
AND
M/s Hydmark Applicon
A - 5/4, Mayapuri Industrial Area,
Phase - II,
New Delhi 110064
.........Management
Date of institution : 31.05.2008
Date of argument : 11.09.2009
Date of order : 24.09.2009
ORDER
1. This order shall dispose of an application filed by the workman LCA No. 16/2008 2 Sh. Mohan S/o Sh. Lalta Prasad, R/o B - 161, 70 Futta Road, Katariawali Gali, Prem Nagar, Nangloi, Delhi under section 33 C(2) of The Industrial Disputes Act (in short Act) alleging that he was working with the management as Fitter w.e.f. 23.08.98 and his last drawn monthly wages were Rs.2,660/; that he was working to the entire satisfaction of the management; that management was not providing legal benefits like appointment letter, wages slip, leave book, bonus etc.; that on repeated oral demand of the legal facilities management only provided ESI facility but did not provide other legal facilities; that when he repeatedly demanded for the legal benefits management got annoyed and illegally terminated his services on 08.08.06 without any notice, prior information and retrenchment compensation. Workman stated that he is entitled to receives the payment of following bonus as per provisions of payment of Bonus Act 1965 @ 8.33% per year:
LCA No. 16/20083
Year Period Amount of Bonus
2003 01.06.03 to 30.5.04 Rs. 2,660/
2004 01.06.04 to 30.5.05 Rs. 2,660/
2005 01.06.05 to 30.5.06 Rs. 2,660/
2006 01.06.06 to 08.8.06 Rs. 490/
Total Rs. 8,470/
2. He has alleged that he is entitled to leave wages @15 days per year as detailed below: Year Period Amount 2003 01.06.03 to 30.5.04 Rs. 1,330/ 2004 01.06.04 to 30.5.05 Rs. 1,330/ 2005 01.06.05 to 30.5.06 Rs. 1,330/ 2006 01.06.06 to 08.8.06 Rs. 260/ Total Rs. 4,250/
3. He thus claimed that he is entitled to received Rs.12,720/ on account of bonus and leave wages and prayed for computing his entitlement to receive this amount from the management under LCA No. 16/2008 4 Section 33C (2) ID Act.
4. Notice of the application was given to the management. Management contested the application by filing reply. By way of preliminary objections management alleged that application of the workman is not maintainable as he had received the bonus for the period he worked and so far as the earned leave is concerned it is submitted that either the claimant had availed the facilities of earned leaves due to him or had received the money in lieu thereof. It is alleged that application of the claimant is beyond jurisdiction of the court because as per Section 21 of payment of Bonus Act, the claimant should have approached the authority under the Bonus Act. On merits management denied that the claimant joined the establishment of the management on 23.8.98 as Fitter and his last drawn salary was Rs.2,660/ per month and it is stated that claimant joined the management w.e.f. 18.3.02. Management denied that LCA No. 16/2008 5 workman worked to the entire satisfaction of the management. It is stated that management was providing all legal facilities to its workmen and claimant did not demand for legal facilities at any point of time as alleged. Management denied that it terminated the service of the claimant on 08.8.06 and stated that rather claimant along with other coworkers did not turn up to resume his duties w.e.f. 08.6.06 on account of their demand of increase in salary to the tune of Rs.2,000/ each. Management stated that claimant has already filed Industrial Dispute pertaining to alleged termination of service and the same is pending disposal. Management denied that workman is entitled to bonus in the sum of Rs. 15,481/ as per the provisions of payment of Bonus Act @8.33% per annum. It is stated that claimant had already received the bonus for the period 2003 onwards except the last financial year 2006 - 2007 for the reason that w.e.f. 08.8.06 he remained absent from his duty. Management denied that claimant is entitled to get leaves wages @15 days per year and stated that LCA No. 16/2008 6 claimant had either availed the facilities of earned leave or had taken money in lieu thereof. Management admitted that it received demand notice from the claimant and stated that it duly replied the notice. Management reiterated that workman has no existing right in his favour and as such the application is liable to be dismissed.
5. Workman did not file replication to the written statement. From pleadings of the parties following issues were framed:
1. To what amount, if any, is the workman entitled from management? OPW
6. Both the parties were directed to lead evidence by way of affidavit. Workman filed his affidavit Ex.WW1/A. He relied upon five documents Ex.WW1/1 to Ex.WW1/5. He was cross examined by AR for the management. Management filed affidavit of its Proprietor MW1 Sh. A. P. S. Oberai, who tendered his affidavit in evidence as LCA No. 16/2008 7 Ex.MW1/A. He relied upon six documents Ex.MW1/M1 to Ex.MW1/M6. He was cross examined by AR for workman.
7. I have heard authorities representatives (hereinafter to be referred as AR) for the parties and have gone through the records. Findings on the issue are as under:
ISSUE NO. 1
8. Workman has claimed entitlement to receive the amount as per his statement of claim on account of bonus and leave wages. Management has disputed the entitlement of the workman to these benefits by alleging that he had been paid bonus and he had either enjoyed the leaves or had received the leave wages. Thus according to the management, workman does not have any existing right to receive any benefit under these heads.
LCA No. 16/20088
9. Law on the subject has been dealt elaborately by Their Lordships in the judgments reported as MCD VS Ganesh Razak and Another :
1995 1 L.L.N. S.C. 402, Jeet Lal Sharma vs. Presiding Officer, Labour Court IVth and Another : 2000 (85) FLR 268, Municipal Corporation of Delhi VS Raghunath Rath & Others : [2003 (99) FLR 114] Delhi, Jagannath Bhagwandas Shrivastav and Others VS. Harish Thadani and another : 1993 L48. LC. 2508 and Basant Lal vs. Management of M/S A.F. Ferguson & Co. & Anr. : 2002 LLR 612 (Delhi). As per law laid by Their Lordships in these judgments if entitlement to receive money is in dispute, application U/s 33C (2) will not be maintainable. It has been held that from the scheme of Section 33 C and language of sub sec (2) thereof, the only limited question that a Labour Court can decide under this sub section is "that amount at which any benefit should be computed", provided however, that the workman "is entitled to receive from the employer any, money or any benefit".LCA No. 16/2008
9
10. In a judgment reported as J.B. Shrivastav Vs. Harish Thadani :
1993 LAB I.C. 2508 Their Lordships held as under:
"Section 33C(2) postulates the existence of relationship of an employer and workman and the entitlement of a workman to certain benefits. The only dispute that can be decided by the Labour Court under this section is in a very narrow compass, that is , relating to the computation of the amount of money that may be due. Where the very foundation is absent, the remedy provided to a workman U/s 33C(2) cannot be availed of. The power of the Court in a proceeding U/s 33C(2) is in the nature of an execution proceeding, and, therefore, when a claim is made before a Labour Court U/s 33C(2), that Court must clearly understand the limitations under which it is to function. It cannot arrogate to itself a power to make adjudication in the nature of determination which some other authority or Court is competent to do."
11. In the judgment reported as H.P. State Electricity Board Vs. Ranjeet Singh: 2008 LAB. I.C. 1697 (SC) Their Lordships have held that the Labour Court cannot decide the entitlement of bonus as it is not covered by second schedule of the ID Act. In the judgment LCA No. 16/2008 10 reported as Union of India and Anr. Vs. Kankuben (Dead) by LRs. and Ors. etc. :2006 LLR 494 (SC) Their Lordships held that claim of overtime allowance U/s 33(2) will not be tenable unless the same is adjudicated on the basis of existing right. According to the principle of law laid down by Their Lordships in the judgements referred hereinabove, the prayer of the workman for computing his entitlement to receive leave wages cannot be entertained through this application U/s 33 C(2) as first he has to get his right to receive leave wages adjudicated by raising a dispute because the management has disputed the existence of his right to receive the leave wages.
12. In view of the foregoing discussion I hold that application of the workman is not maintainable U/s 33 C(2) ID Act as he has failed to even to show that he has any existing right to receive bonus and leave wages or that the management had admitted his such right or that such right had been adjudicated previously by a competent LCA No. 16/2008 11 forum. This issue is accordingly decided against the workman.
13. In view of the foregoing findings on the issue application is dismissed. File be consigned to Record Room. The order be sent to the server (www.delhicourts.nic.in).
Announced in Open Court on this 24 day of September 2009 th S.K. Kaushik Presiding Officer Labour Court No. XII, Karkardooma Courts, Delhi