Delhi District Court
Shri Pintu S/O Shri Bikau Prasad vs M/S Adigear International on 10 July, 2015
IN THE COURT OF SHRI NARINDER KUMAR
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER : LABOUR COURT - XIX
KARKARDOOMA COURTS : DELHI
LCA No. 21/2014
Unique Case ID No. 02402C0 056672014
Shri Pintu S/o Shri Bikau Prasad
C/o Readymade Garments Export Employees Union
I441, Karampura
New Delhi - 110 015 ..............................Claimant
Versus
M/S Adigear International
A40, Mayapuri Industrial Area PhaseI,
New Delhi - 110 064 .......................Management
Date of institution of the case : 11.2.2014
Date of passing the award : 10.7.2015
A W A R D
Present claim under Section 33C(2) of the Industrial Disputes Act,
1947 (hereinafter referred to as the 'Act'), came to be filed by the claimant on
11.2.2014 claiming earned wages for the month of December 2013 @ Rs.8008/
which were not paid by the management with interest and litigation expenses.
2. The claim came to be opposed by the management by filing written
statement denying that claimant is entitled to any such amount. One of the
preliminary objections raised by the management is on maintainability of claim,
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on the ground that only after adjudication of a complaint or on a reference, a
claim U/S 33C(2) of the Act is maintainable.
Claimant did not file any rejoinder.
3. From the pleadings of the parties, following Issues were framed on
28.11.2014 :
1.Whether the present claim is maintainable and if yes, what sum of money the claimant is entitled to? OPW
2. Relief
4. The workman did not file his affidavit in evidence despite availing ample opportunities for the purpose and thus, failed to lead any evidence. The matter was listed for the first time for evidence of workman for 09.2.2015. Thereafter, vide order dt. 26.5.2015, matter was adjourned to 10.7.2015 and listed for WE by way of last opportunity, but neither claimant has come present nor led any evidence. Hence, his evidence stands closed by order of Court. Management has opted not to lead any evidence.
5. Heard. File perused.
ISSUE No. 1 :
6. Onus to prove this issue was upon the workman . By way of present claim U/S 33C(2) of the Act, claimant has demanded earned wages for the month of December 2013 @ Rs.8008/ which were allegedly not paid by the management, but he has failed to lead any evidence. For want of any evidence, claimant cannot be held entitled to any money from the management.
Case of claimant is that on 01.1.2014 management illegally terminated LCA No. 21/2014 2 of 6 him services. He has not challenged the same.
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 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 Pvt. Ltd., Chandigarh vs Suresh Chand and Another (1978) 2 Supreme Court Cases 144, 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."
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 matter of an industrial dispute in a reference under Section 10 of the Act.
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 LCA No. 21/2014 3 of 6 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." In this regard, reference may also be made to decision in Central Bank of India Ltd. vs P.S. Rajagopalan (1964) 3 SCR 140 it was held as under:
"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 and has set aside that order and reinstated the workman".
"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 preexisting contract, cannot be made under Section 33C(2)."
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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 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 33C(2)."
In this regard reference may also be made to decision in Chief Mining Engineer, East India Coal Co. Ltd. vs. Rameshwar (1968) 1 SCR 140, State Bank of Bikaner and Jaipur vs. R.L. Khandelwal (1968) 1 LLJ 589. 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.
7. There is none to tell on behalf of workman if the claimant has filed any claim U/S 10 of the Act challenging termination of his services. In view of the well settled law on the point of maintainability of suchlike claim, present claim U/S 33C(2) of the Act cannot be said to be maintainable, when the management denied the right/benefit claimed by the claimant and for want of adjudication of right/benefit in a separate claim/reference U/S 10 of the Act.
LCA No. 21/2014 5 of 6 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.
So, when the claimant is not entitled to any sum, as prayed, this issue is decided against the claimant.
ISSUE No. 2/Relief. :
8. In view of the findings under Issue No. 1 above, the claim of the claimant is dismissed and he is held not entitled to any relief.
File be consigned to Record Room.
ANNOUNCED IN OPEN COURT
ON 10th day of July 2015 (Narinder Kumar)
Addl. District & Sessions Judge
Presiding Officer, Labour CourtXIX
Karkardooma Courts, Delhi
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