Delhi District Court
The vs Director on 12 May, 2007
IN THE COURT OF MS. REKHA RANI : POLC - XIII :
KARKARDOOMA COURTS : SHAHDARA : DELHI
LCA NO. 105/2006
BETWEEN
SH. BRIJ MOHAN GUPTA S/O SH. R.D. GUPTA, C/O SH. R.D. SHARMA,
ADVOCATE, 144, SARAI KALE KHAN, NIZAMUDDIN RLY.
CROSSING, NEW DELHI-13.
AND
MANAGEMENT OF : M/S SHREE ACIDS & CHEMICALS LTD.,
(FERTILIZER DIVISION) THROUGH ITS MANAGING DIRECTOR, B-
36/10, G.T. KARNAL ROAD, INDUSTRIAL AREA, DELHI-33.
ORDER
1. The applicant filed the present application under section 33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) pleading therein following facts. He was employed as Secretarial Assistant with the management and his last drawn wages were Rs.5393/- per month. He worked diligently. There was no complaint against him. Respondent did not gave him, bonus for the period 2001-02 and wages for the month of May and June 2002. Respondent had been pressurising him to resign from his job. He was forced to sign resignation letter. Despite signing letter of resignation management has not cleared his dues. He sent many letters to the respondent to clear his dues but respondent did not reply to any of his letters. He has claimed earned wages for the month of May and June amounting to Rs.10,786/-, encashment of earned leave amounting to Rs.7589, bonus for two years amounting to Rs.10786/-, gratuity amounting 1 to Rs.18375/- and notice pay amounting to Rs.16179/-.
2. Management contested the claim vide its written statement. It is pleaded that worker resigned from his services vide resignation letter dated 24.6.2002. as such claim is not maintainable. It is further pleaded that he resigned from his services on 24.2.2002 and filed the present claim only on 15.4.2004 without any explaining the delay. It is alleged that he received his full and final payment and collected payment vide voucher no. B0055 dated 3.7.2002 for a sum of Rs.3286/-. It is further pleaded that salary for the month of June 2002 was deducted in lieu of notice as workman himself resigned from his services voluntarily. It is further stated that he did not file any application before the competent authority for the payment of gratuity.
3. I have carefully perused the material available on record. I have also heard Ld. AR for both sides.
4. In Tara & Ors. Vs. Director, Social Welfare & Ors., 1998 LLR 882, Hon'ble Apex Court has held as under :
"It is clear that the question of maintainability of the applications under section 33C(2) was required to be determined at the threshold and the question of examining the appellants' claim on merits relating to their status could have been gone into only thereafter if the applications were held to be maintainable under Section 33C(2)."2
5. Worker interalia has claimed an amount of Rs.16,179/- on account of notice pay @ Rs.5393/- per month. He has alleged that the management obtained his signatures on letter of resignation under coercion and pressure. Wages in lieu of notice have been claimed on the ground that he was forced to resign and the resignation was not voluntary. Management had denied the same. It is stated that he left the services voluntarily by tendering his resignation on 24.6.2002.
6. Worker has further claimed earned wages for the month of May and June 2002. Management had denied that the same is due to him. It is stated that wages of June 2002 was adjusted in lieu of notice as the workman tendered resignation.
7. It is therefore in dispute whether the workman resigned voluntarily or under pressure. If he resigned voluntarily he is not entitled to any notice pay as claimed in clause V para 5 of his application. He has further claimed wages for the month of June 2002. Management claims to have adjusted the same against the period of notice required for tendering resignation. It again requires determination whether the resignation was voluntarily or forced. If the resignation is found to be forced he will be entitled to all consequential benefits.
8. In the case of State of U.P. & Anr. vs. Brijpal Singh 2005 LLR 1191 the employer was appointed as a seasonal clerk on temporary 3 and ad hoc basis. His services were terminated on 03.07.1987. Workman filed writ petition and by interim order High Court stayed operation of order of termination. Workman filed application for payment of salary and bonus from July 1987 to July 1993 in Labour Court. Labour Court allowed the application. High court dismissed the writ petition. Hon'ble Apex Court held as under :
"It is well settled that the workman can proceed under Section 33C(2) only after the Tribunal has adjudicated on a complaint under Section 33A or on a reference under Section 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman. This court in the case of Punjab Beverages Put. Ltd. V. Suresh Chand, (1978) 2 SCC 144, held that a proceeding under Section 33C(2) is a proceeding in the nature of execution proceeding in which the Labour Court calculates the amount of money due to a workman from the employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money proceeds to compute the benefit in terms of money. Proceeding further, this Court held that 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. This court further held as follows :
"it is not competent to the Labour Court 4 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 existing right but which may appropriately be made the subject matter of an industrial dispute in a reference under Section 10 of the Act."
9. In view of aforesaid, it clear that the relief prayed for by the workman depends on adjudication upon the fact whether his resignation was voluntarily or forced. It cannot be decided in these proceedings which are in the nature of execution proceedings. Disputed issues cannot be adjudicated in execution proceedings. In MCD Vs. Ganesh Razak and another, 1995, -1-LLJ-395 the claim of the workman of daily rated casual worker to be paid wages at the same rate as a regular worker had not been earlier adjudicated or recognised by the employer and it was held by the Hon'ble Apex court that in absence of such adjudication or recognition the stage for computation of that benefit could not reach. Hon'ble Supreme Court has held as follows :
''Where the very basis of the claim of the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication 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 proceedings under section 33(c)(2) of the Act. The 5 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 33 (c)(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 there of some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power under section 33(c)(2) like that of the execution court's power to interpret the decree for the purpose of its execution.''
12. The claim as such is not maintainable. Before parting with the order I may also add that the claim is vague too. Applicant has not specified as to when he was forced to resign. Therefore in the absence of date of his forced resignation it is difficult to know even his service period.
13. In view of aforesaid, issue is decided against the applicant and in favour of the management. Claim is held to be not maintainable U/s 33 C (2) of the Act. Ordered accordingly. File be consigned to record room.
Announced in the open PRESIDING OFFICER
Court on 12.05.2007 LABOUR COURT NO. XIII
KARKARDOOMA COURTS, DELHI.
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