Delhi District Court
An Application U/S 33 C (2) Of The ... vs Presiding on 27 February, 2007
IN THE COURT OF MS. REKHA RANI : POLC - XIII :
KARKARDOOMA COURTS: SHAHDARA : DELHI
LCA.461/2006
BETWEEN
SH. PRAN NATH DUGGAL S/O SH. CHARAN DASS C/O
ENGINEERING & ALLIED KARAMCHARI UNION (REGD.), 23,
ADMINISTRATIVE DIVISION, CANTEEN BHAWAN, OKHLA
INDUSTRIAL AREA, PHASE-3, NEW DELHI.
AND
THE MANAGEMENT OF : M/S BATRA BROTHERS (A.L. BATRA
GROUP), E-42/3, OKHLA PHASE-II, NEW DELHI-20.
ORDER
1. An application U/s 33 C (2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) was filed by the applicant claiming an amount of Rs.3,54,240/- from the respondent. Out of the total amount he has claimed Rs.2,740/- towards arrears of wages w.e.f. 1.7.2001 to 20.7.2001, Rs.10,500/- towards bonus for the year 1998-99 to 2001, Rs.11,000/- towards leave encashment from 1997-2001 and Rs.3,30,000/- towards overtime work from 1.7.91 to 1.7.2001. It is pleaded that he worked with the management from 2.2.1991 to 20.7.2001 @ wages of Rs.5,500/- per month. It is stated that his services were terminated on 21.7.2001 without any notice or payment. It is further pleaded that he sent a demand notice to the management by registered post on 18.12.2001 demanding an amount of Rs.3,54,240/- but the management did not reply. Hence the application.
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2. Respondent contested his claim vide its written statement. It is stated that the claim is beyond the scope of Section 33 C (2) of the Act and that the claim can be adjudicated only U/s 10 of the Act. It is further pleaded that applicant was appointed w.e.f. 26.7.1998. He was allegedly paid his full and final payment on 26.7.2001. It is further stated that he was again appointed on 11.4.2000 and he worked upto 8.8.2000. It is stated that no overtime was ever taken from him during the period of his employment. It is further stated that earned leave can be accumulated only upto 30 days which he has already availed off. It is denied that any bonus is due to him.
3. Following issues were framed by my Ld. Predecessor on 1.11.2002 :
1. To what amount, if any, and under which head the workman is entitled to?
4. Both sides adduced evidence. My findings on the above issue are as follows :ISSUE NO. : 1
5. In this case the period of employment of the applicant with the respondent is itself in dispute. The applicant has claimed to have worked with the management w.e.f. 2.2.1991 to 20.7.2001. Respondent has denied the same. It is stated that he was appointed on 26.7.1991 and he 2 worked upto 26.7.1998. He allegedly collected his full and final payment on 26.7.1998. It is further pleaded that he was appointed on 1.4.2000 and he worked only upto 8.8.2000. Now a question arises whether his claim with respect to the period during which relationship of employer and employee is in dispute can be adjudicated in proceedings U/s 33 C (2) of the Act.
6. Following judgments state that if there is a dispute as to whether the claimant was a workman of the respondent during a particular period, the same cannot be adjudicated U/s 33 C (2) of the Act as the same are in the nature of execution and not adjudicatory.
In Life Insurance Corporation of India, Agra Vs Presiding Officer, Central Government Industrial Labour Court, Kanpur 2004 (101) FLR 338, the Corporation denied the relationship of master and servant on payment of wages. The Hon'ble court observed as follows :
"...The corporation denies relationship of master and servant or payment of wages... This controversy cannot be decided without evidence and is out-side the scope of section 33-C of the Industrial Disputes Act. The controversy falls in the ambit of section 10 of the Industrial Disputes Act. The Labour Court could not have computed the wages under section 33-C of the Industrial Disputes Act unless the question of his employment was adjudicated by 3 competent Court in a reference..."
In Central Group and Others And Motiram S. Thakare 2005 - II - LLJ 492, Labour Court's jurisdiction under section 33-C(2) of the Act read with Rule 62 of the Industrial Dispute (Central) Rules, 1957 to decide the status of the claimant as workman arose for consideration. The Hon'ble High Court observed that Labour Court could not adjudicate upon the status of the claimant as a workman under section 33- C(2) of the Act. I quote the relevant observations :
12."But the Labour Court does not enjoy the power to decide about the status of the claimants approaching the Labour Court under the said provisions of Law, nor the issue in relation to the status of the claimants can be said to be an incidental one.
13.The issue relating to the status of the claimant as the workman is not dependent upon the issue of entitlement of the amount and on the contrary, the issue relating to entitlement of amount claimed depends upon the status of the claimant as that of the workman.4
14. Considering the provisions of law, the scope of powers of the Court under Section 33-C(2) of the said Act and the law laid down by the Apex court, therefore, it is apparent that the issue relating to the status of the claimant as being the workman or employee of the opponents in such proceedings cannot be adjudicated upon the Labour Court in such proceedings on the assumptions that such an issue is an incidental issue.
18.It is, therefore, to be held that the Labour Court while dealing with the application under Section 33-C(2) of the Industrial Dispute Act, 1947 cannot deal with the issue relating to the status of the applicant as the workman and such an issue is not an incidental issue in such proceedings but it relates to jurisdictional fact and in the absence of such jurisdictional fact, the Court is not empowered to entertain the application under section 33-C(2) of the said Act.
21.Obviously, therefore, in terms of law on the point, the Labour Court could not have proceeded to adjudicate the issue relating to the status of the applicant and also regarding the right 5 of the respondent, as the same was squarely beyond the scope of powers of the Labour Court under section 33-C(2) of the said Act. Besides, the Labour Court also erred in holding that such issues are incidental to the main issue under Section 33-C(2). Hence, the impugned order cannot be sustained and is liable to be set aside, and the application under Section 33-C(2) of the said Act is liable to be dismissed."
In South Central Railway, Secunderabad vs. Labour Court, Hyderabad, And Another 1983 FJR Vol- 63 p 171 it was held that the jurisdiction of Labour Court is different from that of a Civil Court and it must be shown to have jurisdiction which depends on the status of the claimant as workman. It was further held that proceedings U/s33 C (2) of the Act are in the nature of execution proceeding. Therefore, Labour Court cannot go into the question whether the claimant is a workman in these proceedings. I quote the relevant observations:
"The scope of a Labour Court's jurisdiction under section 33-C(2) of the Act has been held to be in the nature of an execution proceeding. If so, when the right of the petitioner to a particular 6 status is denied, that cannot form the subject - matter of an execution proceeding and, therefore, cannot form the subject - matter of a petition under section 33-C(2). Though the Labour Court may initially entertain the petition, when the employer denies that the petitioner is a workman, it cannot go into that question, for, under section 33-C(2) a right vested in a workman may be enquired into even if that right is denied, but not whether a person claiming the right is a "workman" at all. If the status of the "workman" is determined in some proceeding, or is admitted and only the right to the benefit accruing to the workman under any award, settlement or statute is denied, notwithstanding the denial, the right to that benefit may be determined and the amount computed in terms of money and awarded under section -33C(2). When a right to a benefit due to a workman is denied, not on the ground that he is not a workman at all, but on the ground that such a benefit did not accrue to him, then, notwithstanding the denial of the right, since proceeding under section 33-C(2) is said to be in the nature of an execution proceeding, that right may be enquired into,. In that sense it is not entirely in the nature of a mere 7 execution proceeding. To that extent, the scope of section 33-C(2) may be slightly wider than that of strict execution proceedings before a Civil Court. But, that does not certainly go further than that and clothe the Labour Court with the jurisdiction to enquire into the status of the person as to whether he is a workman or not. Section 33-C(2) proceeds on the basis that the application is made by a workman and does not comtemplate an enquiry as to whether he is a workman or not.
...
So, on the terms of the Section itself, the question whether a workman is entitled to receive from the employer any money or benefit, may be enquired; but not whether he is a "workman" at all or not."
(Emphasis added)
7. The claimant has prayed for arrears of wages w.e.f. 1.7.01 to 20.7.2001 amounting to Rs.2,740. Respondent has denied that he has worked w.e.f. 1.7.2001 to 20.7.2001. Respondent has denied that applicant worked for this period. It is stated that he never worked with the respondent after 8.8.2000. Thus, as stated above, it cannot be adjudicated here whether applicant was a workman of the respondent between 1.7.2001 to 20.7.2001.
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8. He has further claimed bonus from 1999-2001. Respondent has again disputed that he worked for the year 1999 or 2001. It is further stated that he has worked only for four months in the year 2000 I.e. 1.4.2000 to 8.8.2000. It again cannot be adjudicated here whether he was a workman of the respondent for the year 1999 or 2001 or for the full year of 2000.
9. He has claimed leave encashment for the year 1997 to 2001. It is in dispute whether he worked for the year 2001 with the respondent or not. Moreover, claimant himself in his cross-examination stated that he did not know on what basis he was claiming leave encashment.
10. He has further claimed overtime payment w.e.f. 1.7.1991 to 1.7.2001 amounting to Rs.3,30,000/-. Employment is admitted only w.e.f. 26.7.1991 to 26.7.1998 and 1.4.2000 to 8.8.2000. Management has stated that no overtime work was ever taken from him. Following judgments are relevant in this regard :
11. Special Officer, Vellore Co-operative Sugar Mills, Ammundy Post. Vellore v. Presiding Officer, Labour Court, Vellore & Ors. 2005 LLR 653 Hon'ble S. Markandey Katju, on the claim of the claimant for overtime allowance held that as per Section 101 & 102 of the Indian Evidence Act, 1872, burden of proof lies on the workman in that case to prove that he in fact worked overtime.9
12. In case of Arora Industries vs Abdulhampeed Abruirasheed, 2006 LLR 397, Hon'ble Gujarat High Court held that a claim for overtime for six years by a workman under section 33C(2) of the Industrial Disputes Act will not be tenable since it is not based on the existing right of the workman and, as such, the Labour Court has committed gross error in allowing the claim which is liable to be set aside in writ petition.
13. In case of Gujarat Water Supply and Sewerage Board & Anr. vs. Ketanbhai Dinkaray Pandya, Amroll, 2003 LLR 1118, fourty three workers claimed overtime wages in application under section 33(C)(2) of the Act. Labour Court passed an order allowing overtime wages. Ld Single Judge dismissed the writ petition of the management. In LPA Hon'ble Division Bench accepted the appeal and made the following observation :
"Unfortunately, the Labour Court has completely misread this evidence and came to the perverse finding that it is proved from the evidence of workman Ketan Pandya and Dy. Executive Engineer, Sh. Chauhan that the workmen were working for 12 hours per day instead of 8 hours per day and paid salary for 8 hours, therefore, they were 10 entitled for overtime of 4 hours per day. Unfortunately, neither the Labour Court nor the learned single judge of the Court, considered this aspect i.e., any complaint in writing as well as the evidence and the Labour Court has wrongly jumped to the conclusion that all the workmen were working 12 hours per day but paid the salary for only 8 hours per day, therefore, they were entitled for overtime of 4 hours per day. The disputed questions need to be adjudicated upon by a competent authority or Court. Under section 33C the Labour Court acts only as an executive Court and could not have undertaken the exercise of deciding, awarding and executing the claim of the workman in one go. Learned single Judge, therefore, erred in upholding the award of Labour Court while dismissing the petition of employer. The employer-Board has raised bonafide dispute before the Labour Court regarding the claim of overtime wages of the workmen, which should have been first 11 adjudicated either by the competent authority under the Minimum Wages Act or by the Labour Court in reference proceedings under Section 10 of the I.D. Act. In absence of it, all the recovery applications correctly filed before the Labour Court by the respondent - workmen under Section 33C(2) of the I.D. Act were not maintainable. Factually also, the Labour Court has erred in appreciating the evidence on question whether the workman did not work overtime, if so, to what extent? The conclusions are arrived at in absence of evidence in that regard. Awards granting overtime wages to 43 workers in applications under section 33(C)(2) of the I.D. Act, in the absence of adjudication by competent authority though there was a bonafide dispute over overtime wages are under challenge in these Letter Patent Appeals."
(Emphasis mine)
14. In case of Union of India and Anr. vs. Kankuben (Dead) by Lrs. and Ors. etc. etc., 2006 LLR 494, the 12 Hon'ble Apex Court held that a claim for overtime by a workman, under section 33C(2) of the Industrial Disputes Act will not be tenable in view of the settled law that such a claim is to be adjudicated on the basis of the existing right of the workman, hence the Labour Court misdirected itself in allowing the claim of the workman which was erroneously upheld by the learned Single Judge and the Division Bench hence the same is liable to be set aside.
15. In case of Special Officer, Vellore Co-operative Sugar Mills, (Supra) it was also observed :
"In our opinion, it was incumbent upon the claimant for overtime allowance to mention which officer or supervisor asked him to work overtime, and when and where, but the details have not been given in the present case. In our opinion, merely mentioning that the claimant worked overtime for a certain number of hours without clearly stating who ordered him to do overtime and without giving other details cannot sustain a claim for overtime allowance." (Emphasis added)
16. Claimant has not mentioned which officer or supervisor asked him to work overtime. When he was asked by him and where he was 13 required to work overtime. Respondent denied that any overtime work was ever taken from the claimant. MW-1 Sh. C.B. Rora stated no overtime work register is maintained as no overtime work is even taken from any employee. Workman as WW-1 himself stated in his cross- examination that he did not have any proof of working overtime.
17. He is therefore not entitled to any payment even for the admitted period of his employment.
18. Rest of his claim for the disputed period is not maintainable. Ordered accordingly. File be consigned to record room.
DATE : 27.02.2007 PRESIDING OFFICER
LABOUR COURT NO. XIII
KARKARDOOMA COURTS DELHI.
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