Delhi District Court
Applicant/ vs Respondent/ on 30 August, 2014
IN THE COURT OF SH. CHANDRA GUPTA
PRESIDING OFFICER LABOUR COURTX
KARKARDOOMA COURTS, DELHI.
LCA No. : 101/09
Date of Institution of the case : 06.08.2009
Date on which reserved for order : 23.08.2014
Date on which order is passed : 30.08.2014
Sh.Lawrence Messy
S/o Sh. Bahadur Messy,
R/o Quarter No.4,
1, Church Lane, New Delhi110001.
.................Applicant/Workman
Versus
M/s Diocese of Delhi,
The Church of North India,
Through its Secretary,
1, Church Lane, New Delhi110001
........Respondent/Management
O R D E R
This is an application under Section 33C (2) of the Industrial Disputes Act, 1947 (as amended upto date) filed by the applicant/workman Sh.Lawrence Messy, against the respondent/management M/s Diocese of Delhi. It is stated by the applicant/workman in the application that he had been engaged by the management vide appointment letter dated 26.06.1971 in the capacity of 'Peon' in the grade of 1105150 w.e.f. 01.07.1971; that later on, 17.02.1972 a confirmation letter was given to the workman/claimant by the management; that the last drawn salary of the LCA No. 101/09 Page 1 out of 46 workman/claimant was Rs.5,000/ per month; that the workman got detailed order in respect of his appointment wherein the workman was provided with the facility of P.F. and medical etc.; that the workman had performed his duties to the best of his responsibilities and to the satisfaction of the management; that the workman had never given any chance to the management for any complaint in respect of his duties whatsoever; that the workman had worked with the management with hard work and devotion during the entire tenure of his services; that the workman had been working since 01st July, 1971 under the management and entitled to get all consequential benefits such as allowance, medical facilities, bonus HRA etc.; that the workman at the time of joining the duties of the management, the management had obtained the signatures and thumb impression on various papers on the pretext that this was the rules and procedures and was the formal part of recruitment process and only appointment letter had been issued in this respect; that the management vide letter dated 20.08.1999 had issued a circular wherein the management had proposed a salary revision to various staff members working in different capacity; that the workman/claimant had never been given that proposed salary during his tenure of duties; that the workman had written letter to the management in respect of the benefits of his salary but the management never paid any response or reply to the contents of the letter in respect of releasing dues of the workman/claimant; that the workman/claimant had also made verbal request to the Secretary of the management and also to the Bishop, who was the supreme authority of the Church but only the assurance LCA No. 101/09 Page 2 out of 46 were received by the workman/claimant in this respect; that the proposed salary revision was availed by various other staff members of the organization; that the workman/claimant was unable to understand for what reason, his salary hike had not been given to him; that the workman/claimant had written various letters in respect of releasing the dues of salary revision; that the workman/claimant health deteriorated during the office hours on 20.06.2000 and in this respect, the workman had informed his ill health to the personal secretary of the secretary of the management; that the management had not taken proper steps to look after the health of the claimant; that the workman/claimant had taken proper treatment in respect of his medical problem, various doctors had advised the workman/claimant to take proper rest in order to cure his disease; that the copy of those letter had been given to the management with request to provide medical leave; that the claimant had written a letter to the management that for sometime, light work be allotted to the workman/claimant as the doctor of the workman/claimant had advised the workman/claimant that to take some light work from the management looking the ill health of the workman/claimant; that the management had after the above mentioned episode, tried their level best to harass the workman/claimant by not giving him salary and other benefits; that the management had illegally obtained the services of the workman/claimant by not giving him the presence of doing his duties, the workman had worked with the management upto 2005; that the management had illegally terminated the workman from his services without assigning any reason or without providing LCA No. 101/09 Page 3 out of 46 any opportunities resulting which the workman had suffered harassment, mental torture, mental agony as well as financial losses due to this illegal termination; that the workman had also served a legal demand notice dated 11.08.2005 upon the management through UPC but despite receiving the legal notice, the management had not made any provisions to resume the services and to release the salary and other benefits of the workman/claimant; that since the date of termination, the workman was unemployed and was totally dependent upon the mercy of his relatives and friends as the management had not paid the wages and salary to the workman since May, 2000 and also illegally terminated him from the services; that the arrears of the workman was Rs. 8,84,584/ for bonus, over time, gratuity and other allowances; that the action of the management for not giving salary or other remuneration was wrong as well as superannuation service were not given to the workman/claimant which was illegal, unjustified, malafide; that the workman was regular and permanent employee of the management and had unblemished and interrupted record of services; that the services as well as salary of the workman/claimant were not given assigning any reason which amounts to unfair labour practice on the part of the management; that the services of the workman had been terminated by refusal of work without assigning any reason; that in case of retrenchment, no notice was given, no notice pay was either offered or paid to the workman at the time of termination of his services; that the work against which the workman was working was permanent work; that the workman had not committed any misconduct if there was any alleged misconduct LCA No. 101/09 Page 4 out of 46 having been committed by the workman, the management had not served any memo or charge sheet and no/any domestic inquiry was conducted against him and he was not offered any opportunity to be being heard; that even otherwise the retirement benefits were not released by the management and applicant was legally entitled for recovery of all the benefits in view of Section 33C (2) of the I.D. Act; that the industrial dispute had arisen within the territorial jurisdiction of this Hon'ble Court and the Hon'ble Court had got the jurisdiction to try and entertain the present statement of claim; that the workman was entitled for superannuation benefits and full back wages since May, 2000 upto retirement date with all consequential benefits.
Notice of filing of the application was sent to the respondent/management who had appeared and contested the application of the applicant/workman by filing its reply. In the reply filed by the respondent/management, it has taken the preliminary objections that the present claim petition was not maintainable as the same was outside the ambit of the Industrial Disputes Act, 1947; that hence, the claim filed under Section 33C (2) of the I.D. Act was outside the jurisdiction of this Hon'ble Court; that the respondent, Church of North India was part of the 'One Holy, Catholic and Apostolic Church, the body of Christ'; that the objects and purpose of the Church of North India, operating through Synod, Diocese and Pastorate was to proclaim by word and deed the gospel of Jesus Christ who was the Lord and Master of the Church, for the salvation and good of all mankind through unity, witness and service and through LCA No. 101/09 Page 5 out of 46 worship and other activities of the Church which promoted spiritual growth, self reliance, social justice and moral regeneration; that the organization of the Church was on a territorial basis; that the unit of such a territorial organization was Dioceses which was under the charge of the Bishop; that it was the duty of every Diocese to spread the knowledge of the Gospel throughout its territory and to provide the spiritual needs of the members of the church; that the Diocese of Delhi was one of the Dioceses of CNI having its territorial area in Delhi for the purpose of attainment of the above object; that Diocese of Delhi managed its financial needs out of the contributions and offerings of the various churches within its territory; that, however, these churches also thrived on the donations, offerings and voluntary contributions of its congregations; that the respondent craved leave to produce the constitution of the respondent (in the book form) at the later stage to substantiate its above contentions as the same was not readily available; that Dioceses of Delhi (CNI) was neither an Industry nor the claimant was a 'Workman' under the Industrial Disputes Act, 1947 (as amended upto date); that Dioceses of Delhi (CNI) was neither an industrial concern nor had its any business and commercial activity to generate income and profit; that it was an organization in the service of God; that, therefore, the present claim under reply in its present form was not maintainable and was liable to be dismissed being barred under law and outside the statutory jurisdiction of this Hon'ble Court; that the claim of the claimant was hopelessly barred by time as prescribed under law; that the claimant had not come before this Hon'ble Court with clean hands and had LCA No. 101/09 Page 6 out of 46 concealed the true facts; that the claimant had presented an altogether concocted and false story without an iota of truth into it; that the claimant was employed with the respondent as a peon in the month of May 1971 upon terms and conditions as mentioned in his engagement letter; that besides the agreed upon salary, the claimant was given one servant quarter; that from the very beginning of his services, the conduct of the claimant had always been against the respondent organization; that not only would the claimant keep himself unauthorizedly absent during most of his service tenure with the respondent but was also against the service rules and conditions; that the claimant would most of the times during his entire tenure from joining till leaving the services on VRS on 20.10.2001, keep himself unauthorizedly absent and would indulge into unlawful activities; that till the time the claimant continued his services with the respondent, he was given the agreed upon salary; that the claimant withdrew his salary till the year and month May, 2000; that the last withdrawn salary of the claimant was Rs.4,275/ which claimant withdrew under his signature; that from the month of May onward, the claimant absented himself from reporting to the office without any prior approval or leave sanction; that on 6th July, 2000 the respondent wrote a letter thereby informing him about the unauthorized leave; that in the month of July, 2000 the claimant wrote a letter to the office of the respondent thereby informing them about his alleged illness; that however, no medical certificate was provided which was essential for sanctioning of the medical leave; that accordingly, the respondent wrote a letter dated 25.07.2000 thereby requesting the claimant for LCA No. 101/09 Page 7 out of 46 providing the relevant papers of his medical certificates; that the said letter was duly received by the claimant; that despite receipts of the letters, the claimant kept himself absented from the service of the respondent; that in the year 2001, the claimant sought his voluntary retirement which was approved by the respondent vide letter dated 04.06.2002 thereby informing the claimant of the acceptance of the VRS and also intimating him of the settlement of account; that vide the above letter the respondent also asked the claimant to hand over the vacant possession of the allotted quarter and to settle his dues; that for reasons not known to the respondent, the claimant did not come forth for settlement of his dues nor did he hand over the vacant possession of the allotted quarter; that however, on 27.11.2002, the respondent received a letter from the claimant thereby acknowledging his Voluntary Retirement and also seeking assistance from the office of the respondent; that upon his obtaining the voluntary retirement the computation of the dues payable to the claimant as on 27.09.2001 came to Rs. 74,954/; that in the Gratuity Account of the claimant, the amount comes to Rs. 79,183/; that however, for the claim of Gratuity the claimant cannot approach this Hon'ble Court as the gratuity provisions were regulated under its own law; that as such in the instant claim petition the gratuity was not admitted herein; that for reasons not known to the respondent, the claimant did not approach the respondent for settlement of his dues; that the claimant was also not vacating the allotted quarter to the respondent despite several requests and reminders made to him for the same; that on the contrary, the claimant was attempting to encroach upon the land of LCA No. 101/09 Page 8 out of 46 the respondent besides creating nuisance and other illegal activities; that the alleged claim of the claimant was baseless, and unfounded. On merits it was submitted that most of the time during his entire tenure with the respondent, the claimant had been found guilty of dereliction of his duties as well as keeping himself unauthorizedly absent; that, however, the alleged allowances were not applicable in the case of the claimant as he was allotted as quarter by the respondent; that therefore, the alleged claim of HRA was out and out false and incorrect; that however, it was submitted that from the month of May, 2000 the claimant absented himself without approval; that he did not submit any medical certificate to substantiate his claim as alleged; that no such letter had been annexed alongwith the claim; that as such the respondent herein could not suitably reply thereto; that it was denied that the respondent herein ever harassed the claimant or that the salary was not given to the claimant as alleged; that it was denied that the respondent had illegally obtained the services of the claimant by not giving him the presence of doing his duties as alleged; that it was the claimant who absented himself from the services without approval and information; that after long period of unauthorized leave, he sought his voluntary retirement which was approved by the respondent; that accordingly, the claimant retired under VRS with effect from 20.10.2001 but for reasons best known to the claimant, he did not come to settle his account and return the allotted quarter to the respondent; that no legal notice as alleged was ever received by the respondent; that even the claimant had not put any date of the alleged notice in the paragraph under reply; that it was LCA No. 101/09 Page 9 out of 46 denied that the claimant was ever terminated by the respondent and that the alleged arrears of the claimant was Rs. 8,84,584/; that on the contrary he took voluntary retirement from the services with effect from 20.10.2001; that it was the claimant who did not came forth for settlement of his account nor did he vacated the alloted quarter; that the amount payable to the claimant as on the date of VRS came to Rs. 74,954/; that no termination of services was done by the respondent; that on the contrary the claimant took VRS and he was relieved as per rules and law; that no industrial dispute as alleged ever arose between the claimant and the respondent; that the present claim was outside the ambit of the Industrial Disputes Act; that the respondent was not an industry as defined under the Act. All other allegations were denied. Hence it was prayed that the instant application/statement of claim of the applicant/workman be dismissed.
No rejoinder to the reply of the respondent/management was filed by the applicant/workman, on record.
On the pleadings of the parties, vide order dated 10.05.2010, the following issues were framed:
(i) Whether the management is not an industry under Section 2 (j) of I.D. Act?
(ii)Whether the claim is barred by limitation as alleged in preliminary objections of the written statement?
(iii)Whether the workman is entitled to recover any amount as mentioned in the claim LCA No. 101/09 Page 10 out of 46 application?
(iv) Relief.
No other issue arose or pressed for and the case was adjourned for workman evidence.
In support of his case, applicant/workman himself appeared as WW1 in workman evidence, tendered his affidavit by way of evidence Ex.WW1/A as also relied upon documents Exts.W1/1 to W1/9 in the same, on record.
After examining WW1, evidence on behalf of the applicant/workman has been closed, on record.
In support of its defence the respondent/management has led the evidence of Sh. Prabhakar Mahlan (Rev.), Honorary Secretary of the respondent/management as MW1 in the management evidence who has tendered his affidavit by way of evidence Ex.MW1/A as also relied upon documents Exts. MW1/1 to MW1/4 (page nos. 12) and Mark A to D in the same, on record.
After examining MW1, evidence on behalf of the respondent/management has been closed, on record.
Final arguments have been heard. Parties have also filed written submissions, on record, as also the AR for the respondent/management has relied upon citations viz. Canara Bank Vs. Presiding Officer, Central, (1994) IILLJ 1026 P H, (1994) 106 PLR 375; The Central Bank of India Limited Vs. P.S Rajagopalan etc., 1963IILLJ89; Hindustan Antibiotics Ltd. Vs. The workmen & Others, 1967 SCR (1) 652; Deputy Engineer, Zilla Parishad LCA No. 101/09 Page 11 out of 46 Vs.Shantaram Ramaji & Others, 1996 (5) Bom CR 504.
It is seen from the record that though issues in respect whether the respondent/management is an industry under Section 2 (j) of the I.D. Act as also whether the instant claim of the applicant/workman is barred by limitation as alleged in preliminary objections of the reply/written statement along with the issue in respect of the entitlement of the applicant/workman to recover any amount from the respondent/management as mentioned in his instant claim application and relief, if any, have been framed, on record, however, it is felt appropriate that the issue in respect of the entitlement of the applicant/workman to recover any amount against the respondent/management as mentioned in the instant claim application and relief, if any, be taken up first. Accordingly, the said issues viz. issue nos.3 and 4 are taken up for consideration as follows: ISSUE NOS. 3&4 It is seen from the record that the applicant/workman has appeared as WW1 in workman evidence, tendered his affidavit by way of evidence Ex.WW1/A as also relied upon documents Exts.W1/1 to W1/9 in the same, on record. In his affidavit by way of evidence Ex.WW1/A he has reiterated the contents of his instant application to the effect that the applicant/workman had been engaged by the respondent/management vide appointment letter dated 26.06.1971 in the capacity of 'Peon' in the Grade of 1105150 w.e.f. 01.07.1971; that later on 17.02.1972 a confirmation letter was given to the applicant/workman by the respondent/management; that the last LCA No. 101/09 Page 12 out of 46 drawn salary of the applicant/workman was Rs.5,000/ per month; that the applicant/workman got detailed order in respect of his appointment wherein the applicant/workman was provided with the facility of P.F. and medical etc.; that the applicant/workman had performed his duties to the best of his responsibilities and to the satisfaction of the respondent/management; that the applicant/workman had never given any chance to the respondent/management for any complaint in respect of his duties whatsoever; that the applicant/workman had worked with the respondent/management with hard work and devotion during the entire tenure of his services; that the applicant/workman had been working since 01st July, 1971 under the respondent/management and entitled to get all consequential benefits such as allowance, medical facilities, bonus, HRA etc.; that the applicant/workman at the time of joining the duties of the respondent/management, the respondent/management had obtained the signatures and thumb impression on various papers on the pretext that this was the rules and procedures and was the formal part of recruitment process and only appointment letter had been issued in this respect; that the respondent/management vide its letter dated 20.08.1999 had issued a circular wherein the respondent/management had proposed a salary revision to various staff members working in different capacity, the applicant/workman had never been given that proposed salary during his tenure of duties; that the applicant/workman had written a letter to the respondent/management in respect of the benefits of his salary but the respondent/management never paid any response or reply to the LCA No. 101/09 Page 13 out of 46 contents of the letter in respect of releasing dues of the applicant/workman; that the applicant/workman had also made verbal request to the Secretary of the respondent/management and also to the Bishop, who was the supreme authority of the Church but only the assurance were received by the applicant/workman in this respect; that the proposed salary revision was availed by various other staff members of the organization; that the applicant/workman was unable to understand for what reasons, his salary hike had not been given to him; that the applicant/workman had written various letters in respect of releasing the dues of salary revision; that the applicant/workman's health deteriorated during the office hours on 20.06.2000 and in this respect, the applicant/workman had informed his ill health to the personal secretary of the secretary of the respondent/management; that the respondent/management had not taken proper steps to look after the health of the applicant/workman; that the applicant/workman had taken proper treatment and doctors had advised the applicant/workman to take proper rest in order to cure his disease; that the copies of those letters had been given to the respondent/management with request to provide medical leave; that the applicant/workman had written a letter to the respondent/management that for sometime, light work be allotted to the applicant/workman as his doctor had advised him to take some light work from the respondent/management keeping in view the deteriorated health; that the respondent/management after the above mentioned episode had tried their level best to harass the applicant/workman by not giving him salary and other benefits; that LCA No. 101/09 Page 14 out of 46 the respondent/management had illegally obtained the services of the applicant/workman by not giving him the presence of doing his duties; that the applicant/workman had worked with the respondent/management upto 2008; that the respondent/management had illegally terminated the services of the applicant/workman without assigning any reason or without providing any opportunities resulting which the applicant/workman had suffered harassment, mental torture, mental agony as well as financial losses due to this illegal termination; that the applicant/workman had also served a legal demand notice dated 11.08.2005 upon the respondent/management through UPC but despite receiving the legal notice, the respondent/management had not made any provision to resume the services and to release the salary and other benefits of the applicant/workman; that since the date of termination, the applicant/workman was unemployed and was totally dependent upon the mercy of his relatives and friends as the respondent/management had not paid the wages and salary to the applicant/workman since May, 2000 and also illegally terminated him from the services; that the arrears of the applicant/workman was Rs. 8,84,584/ for bonus, over time, gratuity and other allowances; that the action of the respondent/management for not giving salary or other remuneration was wrong as well as superannuation service were not given to the applicant/workman which was illegal, unjustified, malafide because the applicant/workman was regular and permanent employee of the respondent/management and had unblemished and uninterrupted record of services; that no notice was given, no notice pay was either LCA No. 101/09 Page 15 out of 46 offered or paid to the applicant/workman at the time of illegal termination from services; that the applicant/workman had not committed any misconduct and he had not been chargesheeted and no domestic enquiry was conducted against him.
Ex.W1/1 being copy of an application dated 10.09.2001 of the applicant/workman to the respondent/management expressing his inability to discharge his services as a Peon with the respondent/management in which post he had initially being employed with the respondent/management in the year 1971 on the ground of his health being not upto the mark and accordingly, praying for his premature/voluntary retirement from his service as a Peon with the respondent/management, Ex.W1/2 being copy of Memorandum dated 20.06.2000 of the respondent/management to the applicant/workman in respect of his having attained the age of superannuation of 65 years in respect of his services as a Peon with the respondent/management and thereby no longer deemed to be in service of the respondent/management with effect from the said date and for vacation and handing over the vacant possession of the residential quarters allotted to him by the respondent/management, Ex.W1/3 being copy of letter dated 25.07.2000 of the respondent/management to the applicant/workman in respect of non receipt of his original birth certificate at any point of time in the office of the respondent/management, Ex.W1/4 being copy of certificate dated 17.02.1972 of the respondent/management in respect of the applicant/workman having been confirmed in the post of a Peon with the respondent/management w.e.f. 01.01.1972 on completion of his LCA No. 101/09 Page 16 out of 46 probation of six months satisfactorily with it, Ex.W1/5 being copy of certificate dated 26.06.1971 of the respondent/management in respect of the applicant/workman being appointed as a Peon with the respondent/management with effect from 01.07.1971 and being on probation for a period of six months, Ex.W1/6 being certificate dated 22.05.1971 of the respondent/management in respect of the applicant/workman being appointed as a temporary Peon for one month in the first instance on a consolidated salary of Rs. 95/ per month with effect from 17.05.1971 with the respondent/management, Ex.W1/7 being letter dated 04.06.2002 of the respondent/management to the applicant/workman accepting his application dated 10.09.2001 opting for his voluntary retirement from his services as a Peon with the respondent/management and voluntarily retiring him from his services/duties as a Peon with the respondent/management with effect from 20.10.2001, the date when the VRS was adopted by the respondent/management, Ex.W1/8 being letter dated 06.07.2000 of the respondent/management to the applicant/workman intimating to him that he was absenting from his duties with the respondent/management with effect from 12.05.2000 without obtaining any prior sanctioned leave, Ex.W1/9 being another copy of letter dated 04.06.2002 of the respondent/management to the applicant/workman accepting his application dated 10.09.2001 opting for his voluntarily retirement from his service/employment with the respondent/management as a Peon and voluntarily retiring him from his services/employment as a Peon with the respondent/management with effect from 20.10.2001, the date when VRS was adopted by the LCA No. 101/09 Page 17 out of 46 respondent/management.
This witness has been cross examined at length on behalf of the respondent/management in which he has deposed that he had filed his instant application against the respondent/management as mentioned therein; that the respondent/management was the head office of the churches throughout India; that he could not tell who was the controlling authority of the respondent/management, Bishop was the head priest of the church; that he had joined the respondent/management on 17.05.1971 as Peon; that he had worked with the respondent/management till 11.05.2000; that the contents of paragraph no. 12 of his affidavit by way of evidence wherein it was mentioned that he had worked with the respondent/management upto 2008 was incorrect; that the contents of his affidavit by way of evidence Ex.WW1/A, which were in the language English had not been read over and explained to him in the language Hindi which he understood; that he could not read and write the language English nor understood the same; that he had not also been read over and explained the contents of his instant application/statement of claim which were in the language English by his counsel at the time of the filing of the same and accordingly he was not aware of the contents of his instant application/statement of claim as also his affidavit by way of evidence Ex.WW1/A which were in the language English; that he had filed the instant application for an amount of Rupees Eight Lacs Only which was due to him from the respondent/management on account of his pay and allowances for the period of five years and nine months prior to which he was relieved from his service by the LCA No. 101/09 Page 18 out of 46 respondent/management along with gratuity and pension; that he was born in the year 1940; that he had received an amount of Rs. 4,500/ from the respondent/management as his last drawn salary for the month of April, 2000; that he was staying in the premises mentioned hereinabove since the year 1971 in which his father used to reside prior to him; that it was wrong to suggest that he had filed a false application/statement of claim against the respondent/management or that the amount as claimed by him was not due to him from the respondent/management; that it was wrong to suggest that he was deposing falsely.
After examining WW1, evidence on behalf of workman has been closed, on record.
In management evidence, the management has led the evidence of Sh. Prabhakar Mahlan (Rev.), Secretary of the respondent/management, who has appeared in the management evidence as MW1, tendered his affidavit by way of evidence Ex.MW1/A as also relied upon the documents Exts.MW1/1 to MW1/4 (page nos.12) and Mark A to D in the same. In his affidavit by way of evidence Ex.MW1/A he has reiterated the contents of the reply/written statement of the respondent/management and has deposed to the effect that the claim petition was not maintainable as the same was outside the ambit of the Industrial Disputes Act, 1947; that hence, the claim filed under Section 33C (2) of the I.D. Act was outside the jurisdiction of this Hon'ble Court; that the objects and purpose of the Church of North India, operating through Synod, Diocese and Pastorate was to proclaim by word and deed the gospel LCA No. 101/09 Page 19 out of 46 of Jesus Christ who was the Lord and Master of the Church, for the salvation and good of all mankind through unity, witness and service and through worship and other activities of the Church which promoted spiritual growth, self reliance, social justice and moral regeneration; that the organizational structure of the Church of North India was on territorial basis; that the unit of such a territorial organization was Dioceses which was under the charge of a Bishop; that it was the duty of every Diocese to spread the knowledge of the Gospel throughout its territory and to provide the spiritual needs of the members of the churches; that the Diocese of Delhi was one of the Dioceses of CNI having its territorial area in Delhi for the purpose of attainment of the above object; that Diocese of Delhi managed its financial needs out of the contributions and offerings of the various churches within its territory; that, however, these churches also thrived on the donations, offerings and voluntary contributions of its congregations; that Diocese of Delhi (CNI) was not an Industry; that Diocese of Delhi had no business activity to generate income and profit; that it was an organization in the service of God; that the claimant had concealed the true facts in the above claim petition; that the claimant had presented an altogether concocted and false story without an iota of truth into it; that the claimant was employed with the respondent as a peon in the month of May 1971 upon terms and conditions as mentioned in his engagement letter; that besides the agreed upon salary, the claimant was given one servant quarter; that from the very beginning of his services, the conduct of the claimant had always been against the respondent organization; that not only LCA No. 101/09 Page 20 out of 46 would the claimant keep himself unauthorizedly absent during most of his service tenure with the respondent but was also against the service rules and conditions; that the claimant would most of the times during his entire tenure from joining till leaving the services on VRS on 20.10.2001 keep himself unauthorizedly absent and would indulge into unlawful activities; that till the time the claimant continued his services with the respondent, he was given the agreed upon salary; that the claimant withdrew his salary till the year and month May 2000; that the last withdrawn salary of the claimant was Rs. 4,275/ which claimant withdrew under his signature; that from the month of May onward, the claimant absented himself from reporting to the office without any prior approval or leave sanction; that on 06.07.2000 the respondent wrote a letter thereby informing him about the unauthorized leave; that in the month of July 2000 the claimant wrote a letter to the office of the respondent thereby informing them about his alleged illness; that however, no medical certificate was provided which was essential for sanctioning of the medical leave; that accordingly, the respondent wrote a letter dated 25.07.2000 thereby requesting the claimant for providing the relevant papers of his medical certificates; that the said letter was duly received by the claimant; that despite receipt of the letters, the claimant kept himself absent from the service of the respondent; that in the year 2001, the claimant sought his voluntary retirement which was approved by the respondent vide letter of intimation dated 04.06.2002 thereby informing the claimant of the acceptance of the VRS and also intimating him of the settlement of account; that vide LCA No. 101/09 Page 21 out of 46 the above letter the respondent also asked the claimant to hand over the vacant possession of the allotted quarter and to settle his dues; that for reasons not known to the respondent, the claimant did not come forth for settlement of his dues nor did he handed over the vacant possession of the allotted quarter; that on 27.11.2002 the respondent received a letter from the claimant thereby acknowledging his voluntary retirement and also seeking assistance from the office of the respondent; that upon his obtaining the voluntary retirement the computation of the dues payable to the claimant as on 27.09.2001 came to Rs. 74,954/; that in the Gratuity Account of the claimant, the amount came to Rs.79,183/; that however, for the claim of Gratuity the claimant could not approach this Hon'ble Court as the gratuity provisions were regulated under its own law; that as such in the instant claim petition the gratuity was not admitted therein; that for reasons not known to the respondent the claimant did not approach the respondent for settlement of his dues; that the claimant was also not vacating the allotted quarter to the respondent despite several requests and reminders made to him for the same; that on the contrary, the claimant was attempting to encroach upon the land of the respondent besides creating nuisance and other illegal activities; that the alleged claim of the claimant was baseless, and unfounded; that the alleged claim was grounded on lies, fabrication and concocted story without an iota of truth into it; that as such the claim petition of the claimant was liable to be rejected; that the respondent/management had filed its reply/written statement through the then Secretary of Diocese of Delhi namely Rev. Suresh Kumar, LCA No. 101/09 Page 22 out of 46 whose signature he could identify at Point 'X' of the written statement; that the said Rev. Suresh Kumar had been transferred to some other church and was no more working as Secretary of Diocese of Delhi.
Ex.MW1/1 being certified copy of letter dated 30.10.1971 of the applicant/workman to the respondent/management requesting for allotment of staff quarter to him, Ex.MW1/2 being copy of the payment of wages register of the respondent/management in respect of payment of salary to the applicant/workman for the month of May, 2000 amounting to Rs.4,275/, Ex.MW1/3 being letter dated 06.07.2000 of the respondent/management to the applicant/workman to the effect that he was absenting from his duties with the respondent/management with effect from 12.05.2000 without obtaining any prior sanctioned leave which was in violation of the service agreement, Diocesan Staff which he had signed, Ex.MW1/4 being copy of letter dated 25.07.2000 of the respondent/management to the applicant/workman to the effect that he was absent from his duties with the respondent/management with effect from 11.05.2000 on account of alleged illness, hence, he was required to submit appropriate medical certificate in this regard to the respondent/management, Mark A being the constitution of the respondent/management in booklet form, Mark B being the copy of letter dated 04.06.2002 of the respondent/management to the applicant/workman (also Exts.W1/7 and W1/9 in workman evidence) accepting his application dated 10.09.2001 requesting/opting for voluntary retirement from his services/employment as a Peon with the respondent/management and voluntarily retiring him from his LCA No. 101/09 Page 23 out of 46 services/employment as a Peon with the respondent/management with effect from 20.10.2001 the date when the VRS was adopted by the respondent/management, Mark C being copy of letter dated 27.11.2002 of the applicant/workman to the respondent/management with reference to the letter dated 04.06.2002 of the respondent/management to the applicant/workman accepting his application dated 10.09.2001 requesting for voluntary retirement from his services as a Peon with the respondent/management and voluntarily retiring the applicant/workman from his services as a Peon with the respondent/management w.e.f 20.10.2001, the date when the VRS was adopted by the respondent/management (Exts.W1/7 and W1/9 in workman evidence and Mark B in management evidence, on record), requesting for release of the Provident Fund amount deposited in his respect on the part of the respondent/management to him and Mark D being the statement of account dated 27.09.2001 of the respondent/management in respect of the salary detail of the applicant/workman with effect from April and May, 2000 to September, 2001 totaling an amount of Rs.74,954/.
This witness has been cross examined at length on behalf of the applicant/workman in the management evidence in which he has deposed that he was working as Secretary Diocese of Delhi (Church of North India) since the year 2010; that he had been elected to the said post; that it was correct that the termination of the services of the applicant/workman did not take place during his tenure. Vol. The services of the applicant/workman were not terminated but he had taken voluntary retirement from the services of the management;
LCA No. 101/09 Page 24 out of 46 that management had written to the applicant/workman to collect his full and final settlement/dues but he had not come to the office to collect the same; that it was wrong to suggest that the Green Park Free Church was an independent entity; that the management had written to the applicant/workman to collect his dues; that Mark B had been served upon the applicant/workman as also had been acknowledged by him; that acknowledgment of the applicant/workman in this regard had not been filed on record; that it was wrong to suggest that the Mark B had not been served upon the applicant/workman; that the management had alloted residential accommodation to the applicant/workman on his application Ex.MW1/1; that there was endorsement of the allotment of the residential accommodation to the applicant/workman on the part of the respondent/management on Ex.MW1/1 itself.; that Diocese of Delhi meant jurisdictional area of the Church of the North India; that it was correct that the Church of North India was instituted in the year 1970; that it was correct that the management had filed a suit against the applicant/workman for recovery of the quarter alloted to him; that he could not say whether there was any dispute regarding title of the quarter qua the management; that it was wrong to suggest that he was deposing falsely in this regard; that it was correct that he was holding power of attorney on behalf of the management in the said proceedings; that it was wrong to suggest that he was deposing falsely being the Secretary of the management.
Thereafter, management evidence has been closed, on record.
LCA No. 101/09 Page 25 out of 46 It is seen from the record that vide his instant application and the affidavit by way of evidence of the applicant/workman Ex.WW1/A in the same, it is the case/claim of the applicant/workman that he was entitled to his salary and consequential benefits from the respondent/management since May, 2000 till the year 2005 till when the applicant/workman has alleged to have worked with the respondent/management in his instant application and till which year the respondent/management is alleged to have illegally obtained the service of the workman/claimant by not giving him the presence of doing his duties with it and allegedly illegally terminated him from the services, the arrears of the applicant/workman amounting to Rs.8,84,584/ for alleged bonus, overtime, gratuity and other allowances for the said period (his claim for bonus, I find, being not maintainable in this Court in view of the provisions of the "The Third Schedule" to the Industrial Disputes Act, 1947 (as amended upto date) whereas his claim for gratuity being not maintainable in this Court, being not covered under the provisions of the Industrial Disputes Act, 1947 (as amended upto date) under the provision of which the instant application has been moved on behalf of the applicant/workman, on record, being governed by the provisions of separate specific Act viz. Payment of Gratuity Act, 1972 in its respect with specific authority delineated in the same in respect of the same) in the face of the case of the respondent/management in opposition to the instant application and affidavit by way of evidence of the applicant/workman Ex.WW1/A in the same by way of its written statement and affidavit by way of evidence of the MW1 Sh.Prabhakar LCA No. 101/09 Page 26 out of 46 Mahlan (Rev.), Secretary of the respondent/management in management evidence filed in opposition to the same, on record, to the effect that the applicant/workman had been voluntarily retired from his services as Peon with the respondent/management on his application dated 10.09.2001 (Ex.W1/1 in workman evidence) to the respondent/management in this regard on the part of the respondent/management with effect from 20.10.2001 vide letter dated 04.06.2002 of the respondent/management to the applicant/workman in this regard (Exts.W1/7 and W1/9 in workman evidence as also Mark B in management evidence) and that an amount of Rs. 4,275/ towards salary for the month of May, 2000 had been disbursed to the applicant/workman on the part of the respondent/management vide Ex.MW1/2 which is the extract of the payment of wages register of the respondent/management in respect of its employees including the applicant/workman for the said month and that thereafter the applicant/workman had been unauthorizedly absent from his duties as a Peon with the respondent/management till his voluntary retirement from services with the respondent/management on 20.10.2001 despite letters dated 06.07.2000 and 20.07.2000 having been written by the respondent/management to the applicant/workman in this regard Exts.MW1/3 and MW1/4 respectively, on record, and that an amount of Rs.74,954/ is due from the respondent/management to the applicant/workman on account of computation of the due salary in his respect as on 27.09.2001 vide Mark D, on record, and an amount of Rs.79,183/ in the gratuity account of the applicant/workman, however, for the claim for gratuity, the claimant cannot approach this LCA No. 101/09 Page 27 out of 46 Hon'ble Court as the gratuity provisions are regulated under its own law; that as such in the instant claim petition the gratuity is not admitted herein; that for reasons not known to the respondent/management, the claimant/workman did not approach the respondent/management for settlement of his dues.
It is seen from the record that though the applicant/workman is claiming for his alleged arrears for an amount of Rs.8,84,584/ against the respondent/management on account of his arrears towards salary and other dues like bonus, overtime, gratuity etc. for service rendered with the respondent/management with effect from May, 2000 till the year 2005 till which the applicant/workman is alleged to have worked with the respondent/management as alleged by him in his instant application on the ground that the respondent/management had illegally obtained the services of the workman/claimant by not giving him the presence of his duty, he having worked with the respondent/management upto the year 2005 (though in his affidavit by way of evidence Ex.WW1/A in the same, he has mentioned that he had worked upto the year 2008 with the respondent/management) and that the respondent/management had illegally terminated the services of the applicant/workman without assigning any reason and/or without providing any opportunities resulting which the applicant/workman had suffered harassment, mental torture, mental agony as well as financial losses due to this illegal termination, though no date of alleged termination has been mentioned on the part of the applicant/workman qua the respondent/management in this regard, LCA No. 101/09 Page 28 out of 46 however, it is seen from the record that no dispute in the nature of an industrial dispute as envisaged under the provisions of Section 10 (1) of the Industrial Disputes Act, 1947 (as amended upto date) r/w Section 12 (5) of the same has been preferred/raised by the applicant/workman against the respondent/management in respect of his allegations against the respondent/management in the instant application, as abovesaid, viz. to the effect that his services had been terminated illegally on the part of the respondent/management (though no date has been mentioned in this regard in the instant application, on record) and that he was entitled to his dues towards his arrears of salary and other benefits amounting to Rs.8,84,584/ against the respondent/management as claimed in the instant application upto the year 2005 till when the applicant/workman alleges that he had worked/was entitled to work/serve with the respondent/management since in his cross examination as WW1 on behalf of the respondent/management in workman evidence, the applicant/workman deposes that he had filed the instant application for an amount of Rupees Eight Lacs Only which was due to him from the respondent/management on account of his pay and allowances for the period of five years and nine months prior to which he was relieved from his service by the respondent/management along with gratuity and pension as also that he had received an amount of Rs. 4,500/ from the respondent/management as his last drawn salary for the month of April, 2000 (though the respondent/management having alleged payment of the salary of the month of May, 2000 amounting to Rs.4,275/ to the applicant/workman on its part vide Ex.MW1/2) in LCA No. 101/09 Page 29 out of 46 the face of the case of the respondent/management of the applicant/workman having been voluntarily retired from his services as a Peon with the respondent/management on his application dated 10.09.2001 to the respondent/management in this regard (Ex.W1/1 in workman evidence, on record) with effect from 20.10.2001 vide its letter dated 04.06.2002 to the applicant/workman in this regard (Exts.W1/7 and W1/9 in workman evidence and Mark B in the management evidence, on record) and of the applicant/workman having been absent from his duties as a Peon with the respondent/management unauthorizedly with effect from May, 2000 vide its letters dated 06.07.2000 (Ex.W1/8 in workman evidence and Ex.MW1/3 in management evidence) and 25.07.2000 (Ex.MW1/4 in management evidence) on account of his alleged illness and of the applicant/workman having not submitted any valid medical certificates to the respondent/management in this regard as also of the applicant/workman having not approached the respondent/management for settlement of his dues at any point of time consequent to his voluntary retirement of service with the respondent/management vide letter dated 04.06.2002 of the respondent/management to the applicant/workman in this regard on his application to the respondent/management dated 10.09.2001 in this regard, as abovesaid, in the instant proceeding, on record.
It is seen from the record that though the applicant/workman has alleged that he had been working with the respondent/management since May, 2000 when the respondent/management has allegedly not considered his application LCA No. 101/09 Page 30 out of 46 for leave on medical grounds or given him light duties as asked by him and instead had illegally obtained the services of the applicant/workman by not giving the presence of his duties, the applicant/workman having worked with the respondent/management upto the year 2005 and, in fact, had terminated the applicant/workman from his services without assigning any reason or without providing any opportunities resulting which the applicant/workman has suffered harassment, mental torture, mental agony as well as financial losses due to this illegal termination and that the services of the applicant/workman had been terminated by refusal of work on the part of the respondent/management without assigning any reason as alleged by him in his instant statement of claim and affidavit by way of evidence Ex.WW1/A filed in the same, on record, and thereby he was entitled to all his service benefits on account of his service with the respondent/management for the said period amounting to Rs.8,84,584/ as also alleged in the same along with in his deposition in his cross examination as WW1 in workman evidence, when he states/deposes, " I have filed the instant application for an amount of Rupees Eight Lacs only which is due to me from the respondent/management on account of my pay and allowances for the period of five years and nine months prior to which I was relieved from my service by the respondent/management along with gratuity and pension", however, no evidence in this regard i.e. of the applicant/workman having worked with the respondent/management for the said period has been led on the part of the applicant/workman in the instant proceeding, on record, and nor any dispute in respect of LCA No. 101/09 Page 31 out of 46 his alleged illegal termination from services on the part of the respondent/management on the date alleged viz. prior to a period of five years and nine months from the year 2005 when he is alleged to have been illegally relieved from his services by the respondent/management, in the nature of an industrial dispute as envisaged under the provisions of Section 10 (1) of the Industrial Disputes Act, 1947 (as amended upto date) r/w Section 12 (5) of the same qua the respondent/management has been raised/initiated/instituted on the part of the applicant/workman with the competent authority viz. the Labour Department or the Labour Authority of the appropriate Government concerned for the adjudication of the same in order for the determination of his entitlement or otherwise to the amount claimed towards his alleged service benefits and ancillary dues for the period with effect from the date of his alleged termination of service on the part of the respondent/management till the year 2005, as abovesaid, as claimed by him in the instant application in the face of the case of the respondent/management that the applicant/workman had obtained voluntary retirement of his services with the respondent/management by submitting an application dated 10.09.2001 (Ex.W1/1 in workman evidence, on record) in this regard to the respondent/management, with effect from 20.10.2001 vide letter dated 04.06.2002 of the respondent/management to the applicant/workman in this regard (Exts.W1/7 and W1/9 in workman evidence and Mark B in management evidence), on record.
It is seen from the record that the applicant/workman has LCA No. 101/09 Page 32 out of 46 himself admitted to his application dated 10.09.2001 given to the respondent/management requesting for voluntary retirement of his services with the respondent/management by proving the same as Ex.W1/1 in his workman evidence, on record, as abovesaid, as also the grant of voluntary retirement of his services on the part of the respondent/management to him on the same vide its letter dated 04.06.2002 to the applicant/workman in this regard by proving the same as Ex.W1/7 as also Ex.W1/9 in his workman evidence in his instant application, as abovesaid, on record, without raising any dispute in this regard with the respondent/management as envisaged under the provisions of Section 10 (1) of the Industrial Disputes Act, 1947 (as amended upto date) till the filing of the instant application on 06.08.2009 on his part in this Court i.e. after a lapse of a period of about nine years from the date the applicant/workman alleges that the respondent/management had illegally obtained the services of the claimant/workman by not giving the presence of his duties and had illegally terminated the applicant/workman from his services without assigning any reason or without providing any opportunities resulting which the workman has suffered harassment, mental torture, mental agony as well as financial losses due to this illegal termination, though the applicant/workman had allegedly worked with the respondent/management upto the year 2005, for recovery of the amount as claimed in the same allegedly due to him from the respondent/management on account of his pay and allowances for the period of five years and nine months prior to which he was relieved from his service by the respondent/management along with gratuity LCA No. 101/09 Page 33 out of 46 and pension as deposed by him in his cross examination as WW1 on behalf of the respondent/management in workman evidence in the instant proceeding, as abovesaid, on record.
It has been held by the Hon'ble Supreme Court of India vide citation Punjab Beverages Pvt. Ltd., Chandigarh vs. Suresh Chand and Anr. and Management of Hindustan Copper Ltd. vs N.K. Saxena and Ors., AIR 1978 SC 995 (1):
MANU/SC/0273/1978: (1978) 2 SCC 144: "4........ It is now well settled, as a result of several decisions of this Court, 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 his 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. 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 LCA No. 101/09 Page 34 out of 46 relationship between the industrial workman and his employer. Vide Chief Mining Engineer East India Coal Company Ltd. Vs. Rameshwar, (1968) 1 SCR 140: (AIR 1968 SC 218). 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 existing right but which may appropriately be made the subject matter of an industrial dispute in a reference under Section 10 of the Act. Vide State Bank of Bikaner Vs. R.L.Khandelwal, (1968) 1 LAB LJ 589 (SC). That is why Gajendragadkar, J., pointed out in The Central Bank of India Limited Vs. P.S. Rajagopalan etc. (1964) 3 SCR 140: (AIR 1964 SC 743) that "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 LCA No. 101/09 Page 35 out of 46 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)." 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............"
LCA No. 101/09 Page 36 out of 46 In the case of Municipal Corporation of Delhi vs. Ganesh Razak and another 1995 (1) SCT 408 (SC) : 1995 (1) SCC 235, the Hon'ble Supreme Court of India has held as under:
"11. In Central Inland Water Transport Corporation Ltd. Vs. The workmen and Anr., MANU/SC/0292/1974: (1975) 1 SCR 153, it was held with reference to the earlier decisions that a proceeding under Section 33C(2) being in the nature of an execution proceeding, it would appear that an investigation of the alleged right of reemployment is outside its scope and the Labour Court exercising power under Section 33C(2) of the Act cannot arrogate to itself the functions of adjudication of the dispute relating to the claim of reemployment. Distinction between proceedings in a suit and execution proceedings, thereafter was pointed out. It was indicated that the plaintiff's right to relief against the defendant involves an investigation which can be done only in a suit and once the defendant's liability had been adjudicated in the suit, the working out of such liability with a view to give relief is the LCA No. 101/09 Page 37 out of 46 function of an execution proceeding. This distinction is clearly brought out in that decisions as under: 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) and (ii). They are normally regarded as the functions of a suit and not an execution proceeding. Since a proceeding under Section 33C(2) is in the nature of an execution proceeding it should follow that LCA No. 101/09 Page 38 out of 46 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 33C(2), as in an execution proceeding, it may be necessary to determine the identity of the persons 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 33C(2) that court must clearly understand the limitations under which it is to function.
It cannot arrogate to itself the functionssay 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 LCA No. 101/09 Page 39 out of 46 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 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 MANU/SC/0372/1967 that a workman cannot put forward a claim in an application under Section 33C(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.
12. The High Court has referred to some of these decisions but missed the true import thereof. The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no LCA No. 101/09 Page 40 out of 46 earlier adjudication or 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 proceeding under Section 33C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognized by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity required interpretation that the interpretation is treated as incidental to the Labour Court's power under Section 33C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution."
It has thus been held by the Hon'ble Supreme Court of India vide citation State of U.P. and another, Appellants vs. Brijpal Singh, Respondent, MANU/SC/2466/2005: (2005) 8 SCC 58.
"Whenever a workman is entitled to receive LCA No. 101/09 Page 41 out of 46 from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33C(2) of the Act. The benefit sought to be enforced under Section 33C(2) of the Act is necessarily a preexisting benefit or one flowing from a preexisting right. The difference between a preexisting right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33C(2) of the Act while the latter does not."
It has been held vide citation viz. The Central Bank of India Ltd. and Ors. v. P.S. Rajagopalan and Ors. (1963IILLJ89) as already observed in Punjab Beverages Pvt. Ltd. (supra).
".........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 LCA No. 101/09 Page 42 out of 46 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 pre existing contract, cannot be made under Section 33C(2)..."
It has further been held vide citation Canara Bank Vs. Presiding Officer, Central Government I.T. cum Labour Court and Ors., (1994) IILLJ 1026 P H: (1994) 106 PLR 375 ".... It is by now well settled that the proceedings under Section 33C(2) are in the nature of execution proceedings and once it is shown that the relationship of master and servant had come to an end, rightly or LCA No. 101/09 Page 43 out of 46 wrongly, it is not open to the Labour Court to proceed on the basis that it still exists and compute the monetary benefits to which the workman may in the event, be entitled to. This is precisely what the Labour Court has done in the instant case. Interestingly enough, major portion of back wages has been denied to the workman on the ground that he was gainfully employed as a practicing lawyer. As a Lawyer he could not be permitted to be in the employment of any organization but Labour Court has given a declaration that he continues to be in the service of the petitioner Bank. Such a declaration could not be given in proceedings under Section 33C(2) of the Act and at the most such a dispute could give rise to an industrial dispute within the meaning of the Act so as to be adjudicated on a reference made under Section 10. The Labour Court in proceeding under Section 33C(2) of the Act only executes the pre existing rights of workman and if a dispute arises as to whether a particular right exists or not, the same shall have to be decided by LCA No. 101/09 Page 44 out of 46 the Labour Court itself. It cannot, however, in these proceedings create rights in favour of workman which did not otherwise exist. This can only be done when an industrial dispute is raised and the same is decided on a reference under Section 10 of the Act. While examining the scope of the provisions of Section 10 and Section 33C(2) of the Act, the Apex Court in The Central Bank of India Ltd.
v.P.S.Rajagopalan etc. (1963IILLJ89) observed as under (p.97):
".........We would, however, like to indicate some of the claims which would not fall under Section 33C(2) ...... 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 LCA No. 101/09 Page 45 out of 46 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)......."
In view of my above observations and findings as also the case law on the subject, as abovesaid, I find that the applicant/workman has not been able to prove/establish his entitlement to the amount claimed in the instant application, as abovesaid, his claim for bonus and gratuity being not maintainable in this Court in view of my observation, as abovesaid, and in fact his claim for the same in the instant proceeding is untenable in view of Exts.W1/1, W1/7 and W1/9 proved in the workman evidence in the same, as abovesaid, on record.
In view of my above findings, the issue nos. 1 and 2 framed in the instant application, as abovesaid, have become redundant and no finding need be given on the same. Accordingly, I find no merit in the instant application moved on behalf of the applicant/workman. The same is hereby, accordingly, dismissed. File be consigned to the record room.
Announced in the open Court
on 30.08.2014 (CHANDRA GUPTA)
Presiding Officer Labour CourtX
Karkardooma Courts, Delhi.
LCA No. 101/09 Page 46 out of 46