Delhi District Court
Shri Daya Shankar vs M/S The National Tile Works on 5 June, 2023
Shri Daya Shankar Vs. M/s The National Tile Works
LC No. 699/22
IN THE COURT OF SHRI TARUN YOGESH
PRESIDING OFFICER: LABOUR COURT-08
ROUSE AVENUE DISTRICT COURTS: NEW DELHI
LC No. 699/22
CNR No. DLCT13-003009-2022
In the matter of:
Shri Daya Shankar
S/o Shri Ram Lakhan Dubey
Aged about 56 years,
R/o House No. 295,
Khirni Peer Wali Gali,
Near Loni Railway Station,
New Vikas Nagar, Loni,
Ghaziabad, U.P - 201102
... Workman
Versus
M/s The National Tile Works
A-161/162, S.P. Mukherjeet Market,
Jhandewalan, Behind Saran Petrol Pump,
M.M. Road (Rani Jhansi Road),
New Delhi-110005.
...Management
Date of Institution : 27.05.2022
Date of Order : 05.06.2023
ORDER
1. Application under Section 33-C(2) of the Industrial Disputes Act claiming Rs.3,06,377/- towards (a) arrears of Page No. 1 of 17 Shri Daya Shankar Vs. M/s The National Tile Works LC No. 699/22 minimum wages; (b) bonus; (c) earned leave AND (d) conveyance allowance has been assailed by respondent inter alia on following grounds:
i. Application under Section 33-C(2) of I.D. Act is not maintainable in the absence of - (a) prior adjudication by the Court/Authority or (b) admission of benefits by the employer.
ii. Shri Daya Shankar has voluntarily abandoned the services of management by remaining absent w.e.f. 28.02.2014 whereas LIR No. 8705/2016 titled Daya Shankar Vs. M/s National Tile Works alleging termination of service by the employer is pending before Shri Mukesh Kumar, Ld. POLC-01, Rouse Avenue District Courts, New Delhi.
iii. Provisions of the Payment of Bonus Act, 1965 are not applicable as 3-4 persons were working in the management.
iv. Management has never assured about conveyance allowance which was neither included in the terms of employment nor settled between the parties.
2. Application for computation of service benefits has been also assailed by adverting to (a) registered letter dated 26.04.2014 calling upon the workman to join duty within 07 days and (b) reply dated 15.05.2014 in response to false and frivolous notice dated 29.04.2014 asking the workman to join his duty with immediate effect. Management, in addition, has also mentioned Page No. 2 of 17 Shri Daya Shankar Vs. M/s The National Tile Works LC No. 699/22 about compromise effected between parties on 08.03.2016 in course of conciliation proceedings and adverted to registered letter dated 10.03.2016 calling upon workman to join duty with immediate effect followed by reply/rejoinder dated 27.03.2016 in response to false, frivolous and baseless reply dated 18.03.2016.
3. Averments in para 1 to 25 of application have been denied in para-wise reply on merit contending absence from duty w.e.f. 28.02.2014 and Shri Hemant Kaushik for respondent has adverted to para 10 of application wherein applicant Shri Daya Shankar has admitted monthly salary paid up to February 2014.
4. Shri Jai Narain for applicant has urged for computation of difference in wages between the amount paid to Shri Daya Shankar and minimum wages payable to applicant under the Minimum Wages Act, 1948 by relying upon following paras of judgment of Hon'ble High Court of Delhi passed in Central Secretariat Club Vs. Geetam Singh 244 (2017) DLT 571 :
"27. The above discussion leaves no manner of doubt that minimum wages are the basic entitlement of the workman, and an industry which employs workmen without paying them minimum wages has no right to continue. Obviously for this reason, employment of workmen without paying minimum wages to them, constitutes a criminal offence, for which punitive sanctions are provided in Section 22 of the Minimum Wages Act, 1948. Possibly on account of the fact that the Minimum Wages Page No. 3 of 17 Shri Daya Shankar Vs. M/s The National Tile Works LC No. 699/22 Act, 1948 is a self-sufficient legislation, on the requirement and necessity of paying minimum wages, and on the criminality inherent in failing to do so, employment of workmen without paying minimum wages is not among the ― unfair labour practices enumerated in the 5th Schedule to the Industrial Disputes Act, 1947. Even so, employment of ― "workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen" is specified as an unfair labour practice. No less insidious, in the perception of this court, would be employment of workmen without paying the minimum wages, as stipulated in the Minimum Wages Act, 1948.
28. This Court is, therefore, constrained to observe that any reluctance on the part of an employer, to award minimum wages for a workman for the period during which he had admittedly worked, is not only illegal and immoral but also invites criminal liability. Such an attitude erodes the very foundations of a socialist society which the preamble of the Constitution professes us to be, and belies the promises held out to every citizen by the Constitution of India."
5. Hon'ble High Court of Delhi in aforesaid case was seized with the matter related to difference in wages between the Page No. 4 of 17 Shri Daya Shankar Vs. M/s The National Tile Works LC No. 699/22 amount paid to employee and the minimum wages payable under the Minimum Wages Act, 1948. Allowing the claim for statutorily prescribed minimum wages for the period when the employee had admittedly worked for the Club, Hon'ble High Court of Delhi after exposition of concept of minimum wages in paras 14 to 24 of the reported judgment has held -
"Non payment of minimum wages, to a workman is, therefore, unconscionable and unpardonable in law. It strikes at the very route of our constitutional frame work and belies the aspiration set out in the preamble thereto. It is the most basic feature or the basic structure of the constitution which, it is trite, is inviolable and immune from amendment. Any attempt to erode the value enshrined in the preamble to our constitution has, therefore, to be quelled with a heavy hand, if we are, as we profess to be, a "sovereign, socialist, secular, democratic, republic".
6. I have considered his submissions and perused judgment of Hon'ble Court on the point of entitlement to minimum wages prescribed under the Minimum Wages Act, 1948.
7. It is well settled law that jurisdiction of Labour Court under Section 33-C(2) of the Industrial Dispute Acts, 1947 is akin to that of an executing court and Labour Court under Section 33-C(2) is not empowered to act as original court adjudicating upon entitlement of the workman to the money Page No. 5 of 17 Shri Daya Shankar Vs. M/s The National Tile Works LC No. 699/22 which do not stand adjudicated a priori as held by Hon'ble High Court of Delhi in Vice Chancellor Vs. Dal Chand 2018 LLR 16.
8. Section 20 of The Minimum Wages Act provides for adjudication of claim arising out of payment of less than the minimum rates of wages. The statutory provision reads as under:
20.Claims - (1)The appropriate Government may, by notification in the Official Gazette, appoint [any Commissioner for Workmen's Compensation or any officer of the Central Government exercising functions as a Labour Commissioner for any region, or any officer of the State Government not below the rank of Labour Commissioner or any] other officer with experience as a Judge of a Civil Court or as a stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising out of payment of less than the minimum rates of wages [or in respect of the payment of remuneration for days of rest or for work done on such days under clause (b) or clause
(c) of sub-section (1) of section 13 or of wages at the overtime rate under section 14,] to employees employed or paid in that area.
(2) [Where an employee has any claim of the nature referred to in sub-section (1)], the employee himself, or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf, or any Inspector, or any person acting with the Page No. 6 of 17 Shri Daya Shankar Vs. M/s The National Tile Works LC No. 699/22 permission of the Authority appointed under sub-section (1), may apply to such Authority for a direction under sub-section (3):
Provided that every such application shall be presented within six months from the date on which the minimum wages [or other amount] became payable:
Provided further that any application may be admitted after the said period of six months when the applicant satisfies the Authority that he had sufficient cause for not making the application within such period.
[(3) When any application under sub-section (2) is entertained, the Authority shall hear the applicant and the employer, or give them an opportunity of being heard, and after such further inquiry, if any, as it may consider necessary, may, without prejudice to any other penalty to which the employer may be liable under this Act, direct -
(i) in the case of a claim arising out of payment of less than the minimum rates of wages, the payment to the employee of the amount by which the minimum wages payable to him exceed the amount actually paid, together with the payment of such compensation as the authority may think fit, not exceeding ten times the amount of such excess;Page No. 7 of 17
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(ii) in any other case, the payment of the amount due to the employee, together with the payment of such compensation as the Authority may think fit, not exceeding ten rupees, and the Authority may direct payment of such compensation in cases where the excess or the amount due is paid by the employer to the employee before the disposal of the application.] (4) If the authority hearing any application under this section is satisfied that it was either malicious or vexatious, it may direct that a penalty not exceeding fifty rupees be paid to the employer by the person presenting the application.
(5) Any amount directed to be paid under this section may be recovered -
(a) if the Authority is a Magistrate, by the Authority as if it were a fine imposed by the Authority as a Magistrate, or
(b) if the Authority is not a Magistrate, by any Magistrate to whom the Authority makes application in this behalf, as if it were a fine imposed by such Magistrate.
(6) Every direction of the Authority under this section shall be final.
Page No. 8 of 17Shri Daya Shankar Vs. M/s The National Tile Works LC No. 699/22 (7) Every Authority appointed under sub- section (1) shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), for the purpose of taking evidence and of enforcing the attendance of witnesses and compelling the production of documents, and every such Authority shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898 (5 of 1898)."
9. It is, therefore, evident from aforesaid provision of law that statutorily prescribed minimum wages is to be decided by Commissioner for Workman's Compensation or any Officer of the Central Government or the State Government or any other officer duly appointed by appropriate government by notification and Labour Court under Section 33-C(2) of I.D. Act is not empowered to Act as original Court adjudicating upon entitlement to minimum wages which has not been adjudicated a priori as held by Hon'ble Mr. Justice C. Harishankar in Vice Chancellor Vs. Dal Chand (Supra).
10. Section 33C(2) of the Industrial Dispute Act, 1947 reads as under:
"33C. Recovery of money due from an employer:
(1) xxxxxxxxx (2) Where any workman is entitled to receive from the employer any money or any benefit Page No. 9 of 17 Shri Daya Shankar Vs. M/s The National Tile Works LC No. 699/22 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 to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit."
11. Scope and ambit of Section 33-C(2) of I.D. Act has been discussed in para 13 of the judgment titled "Jeet Lal Sharma Vs. Presiding Officer, Labour Court-IV & Anr." 2000 IV AD (Del) wherein Hon'ble High Court of Delhi after referring to a series of judgments of Hon'ble Apex Court titled (i) "Punjab National Bank Vs. K. L. Kharbanda" reported in 1962 (1) LLJ 234; (ii) "Central Bank of India Vs. P.S. Rajagoplan" reported in 1963 (2) LLJ 89; (iii) "Bombay Gas Company Limited Vs. Gopal Bhiva" reported in 1963 (2) LLJ 608; (iv)"Chief Engineer Mining, East India Coal Company Limited Vs. Rameshwar"
reported in 1968 (1) Lab I.C.6 SC and (v) "Municipal Corporation of Delhi Vs. Ganesh Razak" reported in 1995 (1) SCC 335 has recorded following observation:Page No. 10 of 17
Shri Daya Shankar Vs. M/s The National Tile Works LC No. 699/22 "13. When the claim is based on adjudication or settlement it poses no difficulty. However there may be cases where the workman would be held entitled to receive the money as pre-existing right on the basis of the agreement between the employer and employee or as per established service conditions which have culminated into right in favour of the workman..."
12. The term 'pre-existing right' has been discussed by Hon'ble High Court of Delhi in Para-8 & 9 of its judgment titled "Shri Vishnu Kumar Mangla Vs. Dhaneshwar Gupta & Sons, 2012 SCC Online Del 1233" :
"8 Therefore, for the maintainability of such an application, it is a pre-condition that the workman is "entitled to receive" money claimed by him. This entitlement is referable to "pre-existing right" and those pre- existing rights would be established if it has earlier been adjudicated upon and provided for i.e. entitlement is recognized by the employer. This recognition can be either in the form of settlement or as per the service conditions."
"9 When we examine the matter from the aforesaid angle, we find ourselves in agreement with the approach of the learned single Judge insofar as gratuity and bonus is Page No. 11 of 17 Shri Daya Shankar Vs. M/s The National Tile Works LC No. 699/22 concerned. It has been contested by the respondent that these acts are not applicable to the respondent. There are authorities provided under both these judgments where claim can be raised in these proceedings and the authorities can determine the applicability of the Act. Unless there is termination, there cannot be in "pre-existing right"."
13. Labour Courts under Section 33-C(2) of I.D. Act, 1947 are empowered to decide any question in respect of 'pre-existing right' but dispute regarding number of employees working in the company can be decided only by way of industrial dispute under Section 10 of I.D. Act, 1947 as held by Hon'ble Supreme Court of India in para-12 & 13 of its judgment tiled Central Inland Water Transport Corporation Ltd. Vs. Workman & Anr. (1974) 4 SCC 696 which are reproduced below for reference:
"12. It is now well-settled that a proceeding under section 33-C(2) is a proceeding, generally, in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to a workman from his employer, or if the workman is entitled to any benefit which is capable of being computed in terms of money, the Labour Court proceeds to compute the benefit in terms of money. This calculation or computation follows upon an existing right to the money or benefit, in Page No. 12 of 17 Shri Daya Shankar Vs. M/s The National Tile Works LC No. 699/22 view of its being previously adjudged, or, otherwise, duly provided for. In Chief Mining Engineer, East India Coal Co. Ltd. v. Rameshwar & Ors. it was reiterated that proceedings under section 33-C(2) are analogous to execution proceedings and the Labour Court called upon to compute in terms of money the benefit claimed by workmen is in such cases in the Position of an executing court. It was also reiterated that the right 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 an industrial workman and his employer."
"13. In a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of
(i) the plaintiff's right to relief; (ii) the corresponding liability of the defendant, including, whether the defendant is, at all, liable or not; and (iii) the extent of the defendant's liability, if any. The working out of such liability with a view to give relief is generally regarded as the function of an execution proceeding. Determination No.
(iii) referred to above, that is to say, the extent of the defendant's liability may sometimes be left over for determination in execution proceedings. But that is not the case with the determinations under heads (i) Page No. 13 of 17 Shri Daya Shankar Vs. M/s The National Tile Works LC No. 699/22 and (ii). They are normally regarded as the functions of a suit and not an execution proceeding. Since a proceeding under section 33-C(2) is in the nature of an execution proceeding it should follow that an investigation of the nature of determinations
(i) and (ii) above is, normally, outside its scope. It is true that in a proceeding under section 33-C(2), as in an execution proceeding, it may be necessary to determine the identity of the person by whom or against whom the claim is made if there is a challenge on that score. But that is merely 'incidental'. To call determinations (i) and
(ii) 'Incidental' to an execution proceeding would be a perversion, because execution proceedings in which the extent of liability is worked out are just consequential upon the determinations (i) and (ii) and represent the last stage in a process leading to final relief.
Therefore, when a claim is made before the Labour Court under section 33-C(2) that court must clearly understand the limitations under which it is to function. It cannot arrogate to itself the functions- say of an Industrial Tribunal which alone is entitled to make adjudications in the nature of determinations (i) and (ii) referred to above, or proceed to compute the benefit by dubbing the former as 'Incidental' to its main business of computation. In such cases determinations (i) and (ii) are not 'Incidental' to the computation. The Page No. 14 of 17 Shri Daya Shankar Vs. M/s The National Tile Works LC No. 699/22 computation itself is consequential upon and subsidiary to determinations (i) and (ii) as the last stage in the process which commenced with a reference to the Industrial Tribunal. It was, therefore, held in State Bank of Bikaner and Jaipur v. R. L. Khandelwal that a workman cannot put forward a claim in an application under section 33-C(2) in respect of a matter which is not based on an existing right and which can be appropriately the subject-matter of an industrial dispute which requires a reference under section 10 of the Act." (Emphasis be laid)
14. Aforesaid principle of law has been uniformly followed in cases titled (i) D. Krishnan & Anr. Vs. Special Officer, Vellor Co-operative Supermill & Anr. (2008) 7 SCC 22; (ii) Municipal Corporation of Delhi Vs. Ganesh Razak & Anr. (1995) 1 SCC 235; (iii) State Bank of India Vs. Ram Chandra Dubey & Ors. (2001) 1 SCC 73; (iv) State of U.P. and Anr. Vs. Brijpal Singh (2005) 8 SCC 58; (v) Delhi Transport Corporation Vs. D.D. Gupta Presiding Officer 1996 SCC On Line 298 AND (vi) Vice Chancellor Vs. Dal Chand 2018 LLR.
15. Arrears of bonus and conveyance allowance being disputed by respondent in paras 6 & 7 of preliminary objections cannot be treated as 'pre-existing right' and similarly prayer for earned leave and difference in wages between the amount paid to employee and minimum wages payable to him under the Page No. 15 of 17 Shri Daya Shankar Vs. M/s The National Tile Works LC No. 699/22 Minimum Wages Act, in the absence of adjudication, is beyond jurisdiction of Labour Court under Section 33-C(2) of I.D. Act.
16. As regards reliance placed upon the judgment of Hon'ble High Court of Delhi in Central Secretariat Club Vs. Geetam Singh (Supra), Hon' ble Justice C. Hari Shankar in his later judgment in Vice Chancellor Vs. Dal Chand (supra) has categorically held that Labour Court under Section 33-C(2) of I.D. Act is not empowered to act as original Court adjudicating on entitlement to money which do not stand adjudicated a priori.
17. Para 19 of the judgment of Hon'ble Supreme Court of India in Haryana Financial Corporation & Anr. Vs. Jagdamba Oil Mills & Ors. (2002) 3 SCC 496 being relevant is extracted below:
"19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark upon lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statues, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes."Page No. 16 of 17
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18. Application under Section 33C(2) of I.D. Act, 1947 claiming Rs.3,06,377/- towards (a) arrears of minimum wages; (b) bonus; (c) earned leave AND (d) conveyance allowance is therefore dismissed.
19. Judicial file be consigned to record room.
ANNOUNCED IN THE OPEN COURT DATED: 05.06.2023 Digitally signed TARUN by TARUN YOGESH YOGESH Date: 2023.06.06 14:43:00 +0530 (TARUN YOGESH) PRESIDING OFFICER - LABOUR COURT-08 ROUSE AVENUE DISTRICT COURTS:
NEW DELHI Page No. 17 of 17