Delhi District Court
Lca154/2016 ( Old Lca No:07 Of 2012), ... vs . Management Of Lal Bahadur on 24 April, 2019
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IN THE COURT OF Ms. VEENA RANI, PRESIDING OFFICER
LABOUR COURT SOUTHWEST DISTRICT, DWARKA COURTS ,
NEW DELHI
LCA154/2016 ( Old LCA No:07 of 2012)
INDUSTRIAL DISPUTE BETWEEN :
Sh. Chandrika Parsad S/o Sh. Ram Khilawan
Through Jagriti Labour Union, Chamber No:X1,
Civil Side, Tis Hazari Courts, Delhi110054 .....Workman
VERSUS
Management of Lal Bahadur Shastri
Senior Secondary School, Sector3,
R.K. Puram, Delhi .....Management
Date of Institution : 25012012
Date of Arguments : 29032019
Date of Award : 24042019
AWARD
1. The Workman has filed the present direct Industrial dispute u/s
33(c)(2) of the Industrial Dispute Act 1947. The case of the workman as
stated in the claim is that he was working as "Lab Assistant" with the
management and on 30062006 he was terminated by the
management. The workman stated to have made a complaint before the
Labour Office but management did not take him back in his services,
therefore, the present case has been referred to this court by the Labour
Office.
LCA154/2016 ( Old LCA No:07 of 2012), Sh. Chandrika Parsad Vs. Management of Lal Bahadur
Shastri Senior Secondary School
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2. It is averred that workman has filed a claim before the court for
his reinstatement with full back wages, in which the court had passed an
order dt. 08092010 and reinstated the workman with 40 percent
unemployment allowance. It is stated that the management were
directed to make the down payment to the management and
management paid Rs.1,06,920/ to the workman, which amount was not
as per the order passed by the court.
3. It is further averred that grade pay of Lab Assistant's was
Rs.4000 to Rs.6000/ per month in every school. It is stated that when
the workman was dismissed, he was given Rs.5075/, which amount
was also accepted by the court and same is also mentioned in the order
of the court dt. 08092010. It is submitted that as per the order of the
court the management was required to pay 40 percent of the amount of
Rs.19830/ per month to the workman as the court has admitted the
last drawn payment of workman as Rs.19830/. It is further submitted
that workman is entitled to receive Rs.4,58,400/ for 50 month and 08
days as unemployed allowance but the management had paid only
Rs.109,820/, therefore, the amount of Rs.3,48,780/ is still due and
payable by the management to the workman towards unemployment
allowance.
4. The workman stated to have sent a demand letter to the
management demanding the said dues of Rs.3,48,780/ but management
did not pay the balance amount to the workman. Workman also made a
complaint to the Labour Office in this regard but all in vain.
5. Workman prayed for payment of above remaining/balance dues,
as per order dt. 08092010, along with the prevailing interest.
6. Notice of the claim was sent to the management. Management
LCA154/2016 ( Old LCA No:07 of 2012), Sh. Chandrika Parsad Vs. Management of Lal Bahadur
Shastri Senior Secondary School
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appeared and filed written statement to the claim of the workman.
Management raised preliminary objections that the proceedings u/s
33(c)(2) of ID Act are akin to execution proceedings. It is stated that
matter of grade/pay scale was neither in issue before this court nor any
directions have been passed in the award relating to grade/pay scale. It
is stated that at that time workman was working on consolidated pay as
stated by him in his clam statement also. No adjudication took place
regarding matter of grade/pay scale in ID No:31/2017, therefore, the
application is not maintainable and liable to be dismissed. It is
submitted that instant application is not maintainable as the award
passed by the court has already been satisfied in presence of the Asstt.
Labour Commissioner on 31012011 under proper receipt. It is denied
that management had not paid amount as per award to the workman. It
is stated that the management had complied with the directions of the
court and reinstated the workman and paid him 40% back wages as per
last drawn wages/salary of Rs.5075/. Management denied the other
averments of the workman and stated that the workman is not entitled to
the relief claimed in the instant application. Management prayed for
dismissal of the application of the workman.
7. Workman filed replication to the written statement of the
management and in his replication the workman has controverted the
averments of the management made in written statement and reiterated
his stand made in his instant application.
8. From the pleadings of the parties the following issues were
framed on 26092012;
(1) Whether the workman is entitled to the monetary dues claimed
by him, ? OPW
(2) Relief
LCA154/2016 ( Old LCA No:07 of 2012), Sh. Chandrika Parsad Vs. Management of Lal Bahadur
Shastri Senior Secondary School
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9. Workman has examined himself as WW1 and filed his evidence
by way of affidavit which is exhibited as Ex.WW1/A. In his evidenciary
affidavit the workman has reiterated the contents of the statement of
claim. The documents are exhibited as Ex.WW1/1 to Ex. WW1/14.
Copy of the award dt. 892010 is Ex. WW1/1. Certificate issues by the
management to the workman dt. 19112011 is Ex.WW1/2 in which
Lab Assistant is written. Wages register for 2004 is Ex.WW1/3. Copy
of office order of management dt. 152013 is Ex. WW1/3.
Advertisement by the management for Lab Assistant is Ex. WW1/5
and details of salary of Lab Assistant is mentioned in Ex. WW1/6. RTI
reply by the Delhi Government dt. 1332013 in which pay of Lab
Assistant is mentioned Rs.2,92,10/, are Ex.WW1/7 to Ex. WW1/9. A
copy of the advertisement for the post of Lab Assistant by the Lal
Bahadur Shastri Sr. Secondary School is Ex. WW1/10. Advertisement
by the Ved Vyas DAV Public School for the post of Lab Assistant is
Ex.WW1/11 and Ex. WW1/12. It is stated that as per the school
broacher of the management in which post of Lab Assistant is
described is Ex. WW1/13. Copy of the claim filed before the Labour
Office is Ex. WW1/14.
10. The workman has been cross examined by the AR of the
management.
11. Management has examined Sh. Indu Shekhar as MW1, who has
filed his evidence by way of affidavit Ex.MW1 and documents are
Ex.MW1/1 to Ex. MW1/3. The copy of the receipt dt. 31012011 is
Ex. MW1/1, which made before the Asstt. Labour Commissioner. The
wages register for the period February 2011 to March 2012 are
Ex.MW1/2. MW1 deposed that workman never worked as Lab
Assistant with the management and an office order dt. 12072004, in
LCA154/2016 ( Old LCA No:07 of 2012), Sh. Chandrika Parsad Vs. Management of Lal Bahadur
Shastri Senior Secondary School
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this regard is Ex.MW1/3.
12. AR for the workman has also cross examined the MW1.
13. I have heard the authorized representative of the workman as
well as management and my findings on the issues are as under:
14. ISSUE NO:1
Onus to prove this issue is upon the workman. The workman has
examined himself as WW1. In his evidenciary affidavit the workman
has reiterated the contents of the statement of claim. The documents are
exhibited as Ex.WW1/1 to Ex. WW1/14. Copy of the award dt. 89
2010 is Ex. WW1/1. Certificate issues by the management to the
workman dt. 19112011 is Ex.WW1/2 in which Lab Assistant is
written. Wages register for 2004 is Ex.WW1/3. Copy of office order of
management dt. 152013 is Ex. WW1/3. Advertisement by the
management for Lab Assistant is Ex. WW1/5 and details of salary of
Lab Assistant is mentioned in Ex. WW1/6. RTI reply by the Delhi
Government dt. 1332013 in which pay of Lab Assistant is mentioned
Rs.2,92,10/, are Ex.WW1/7 to Ex. WW1/9. A copy of the
advertisement for the post of Lab Assistant by the Lal Bahadur Shastri
Sr. Secondary School is Ex. WW1/10. Advertisement by the Ved Vyas
DAV Public School for the post of Lab Assistant is Ex.WW1/11 and
Ex. WW1/12. It is stated that as per the school broacher of the
management in which post of Lab Assistant is described is Ex.
WW1/13. Copy of the claim filed before the Labour Office is Ex.
WW1/14.
On the other hand the management has examined Sh. Indu
Shekhar as MW1, who has filed his evidence by way of affidavit
Ex.MW1. The copy of the receipt dt. 31012011 is Ex. MW1/1, which
LCA154/2016 ( Old LCA No:07 of 2012), Sh. Chandrika Parsad Vs. Management of Lal Bahadur
Shastri Senior Secondary School
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made before the Asstt. Labour Commissioner. The wages register for
the period February 2011 to March 2012 are Ex.MW1/2. MW1
deposed that workman never worked as Lab Assistant with the
management and an office order dt. 12072004, in this regard is
Ex.MW1/3.
The perusal of the AWARD dated 08.09.2010 framed the
following issues:
1. ISSUE No.1 - Whether the management is not an industry
within the meaning of Section (j) of ID Act 1947 ? OPM {This
issue was decided against the management}
2. ISSUE No.2 - Whether the claimant abandoned his job by
remaining absent from 11.05.2005 to 30.06.2006? OPM {This
issue was decided against the management}
3. ISSUE No.3 - Whether the management was indulging in unfair
labour practice ? OPW
4. As per terms of reference.
(ISSUE No.3 & 4 were decided against the management}
In the RELIEF - it was observed by the Ld. Labour Court :
"35. As the termination of the service of the workman has
been rendered illegal, he is entitled to be restored back into the same
position that existed at the time of the termination."
LCA154/2016 ( Old LCA No:07 of 2012), Sh. Chandrika Parsad Vs. Management of Lal Bahadur
Shastri Senior Secondary School
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"46. Award of back wages is discretionary. It is the duty of the
court to take judicial notice of the common course of events.
Therefore, in view of the facts and circumstances of the case, the
interest of justice would be served if the workman awarded back
wages @ 40% of the last drawn salary since the date of the
termination."
At the very inception the contention of the managementherein
has been that the claimantherein was not eligible for the post of
Laboratory Assistant as the claimantherein was only 10+2 with Arts
who was appointed on adhoc basis as Laboratory Attendant (Ls.
Bearer) on humanitarian grounds on the special recommendation of the
Sh. Chaman Lal the then Junior Engineer with the Land &
Development Office (brother of the claimant). The management has
also contended that the scope of the S.33c2 of the ID does not
contemplate adjudication on any issue relating to the position / grade
etc. of a workman. According to the management the workman is
seeking execution of the AWARD under the garb of the provision of
S.33c2 of the ID Act. The management had complied with the
AWARD by granting workman awarded back wages @ 40% of the last
drawn salary since the date of the termination.
The contention of the claimantherein is that when the Labour
Court had passed an AWARD in favour of the workman then the
management ought to have complied with the directions of the court in
full spirit including the aspect of the "same position that existed at the
time of the termination."
LCA154/2016 ( Old LCA No:07 of 2012), Sh. Chandrika Parsad Vs. Management of Lal Bahadur
Shastri Senior Secondary School
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Section 33C(2) in The Industrial Disputes Act, 1947
"Where any workman is entitled to receive from the
employer any money or any benefit which is capable of being
computed in terms of money and if any question arises as to the
amount of money due or as to the amount at which such benefit
should be computed, then the question may, subject to any rules
that may be made under this Act, be decided by such Labour Court
as may be specified in this behalf by the appropriate Government;
within a period not exceeding three months:
Provided that where the presiding officer of a Labour Court
considers it necessary or expedient so to do, he may, for reasons to
be recorded in writing, extend such period by such further period
as he may think fit.]
As per Municipal Corporation Of Delhi vs Razak {reported in 1995
SCC (1) 235 ; JT 1994 (7)476} :
"8.Reference may be made first to the Constitution Bench decision
in Central Bank of India Ltd. v. PS. Rajagopalan {reported in 1964
AIR 743, 1964 SCR (3) 140} on which Shri Rao placed heavy
reliance. That was a case in which the question of maintainability of
proceedings under Section 33C(2) of the Act was considered in a
claim made by the workmen on the basis of the Sastry
Award. ......................This decision itself indicates that the power
LCA154/2016 ( Old LCA No:07 of 2012), Sh. Chandrika Parsad Vs. Management of Lal Bahadur
Shastri Senior Secondary School
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of the Labour Court under Section 33C(2) extends to interpretation
of the award or settlement on which the workman's right rests, like
the Executing Court's power to interpret the decree for the purpose of
execution, where the basis of the claim is referable to the award or
settlement, but it does not extend to determination of the dispute of
entitlement or the basis of the claim if there be no prior adjudication
or recognition of the same by the employer. This decision negatives
instead of supporting the submission of learned counsel for the
respondents."
"9. Another decision on the point is Bombay Gas Co. Ltd. v. Gopal Bhiva {1964 AIR 752, 1964 SCR (3) 709} wherein also Gajendragadkar, J., (as he then was) speaking for the Bench, referring to the above Constitution Bench decision, stated that the proceedings contemplated by Section 33C(2) are analogous to execution proceedings and the Labour Court, like the Executing Court in the execution proceedings governed by the Code of Civil Procedure, would be competent to interpret the award on which the claim is based. It is obvious that the power of the Executing Court is only to implement the adjudication already made by a decree and not to adjudicate a disputed claim which requires adjudication for its enforcement in the form of decree. The Executing Court, after the decree has been passed, is however competent to interpret the decree for the purpose of its implementation. This position was settled by the above Constitution Bench decision and has been the consistent view of this Court ever since then."
LCA154/2016 ( Old LCA No:07 of 2012), Sh. Chandrika Parsad Vs. Management of Lal Bahadur Shastri Senior Secondary School 10 "10. Next case on this point is Chief Mining Engineer East India Coal Co. Ltd. v. Rameswar {1968 AIR 218, 1968 SCR (1) 140} wherein the above decisions were relied on. It was held that the right to the benefit which is sought to be computed under Section 33 C(2) must be "an existing one, that is to say, already adjudicated upon or provided for". The propositions on the question as to the scope of Section 33C(2) deducible from the earlier decisions of this Court were summarised and they include the following, namely:
(SCR pp. 142144) "(1) The legislative history indicates that the legislature, after providing broadly for the investigation and settlement of disputes on the basis of collective bargaining, recognised the need of individual workmen of a speedy remedy to enforce their existing individual rights and therefore inserted Section 33A in 1950 and Section 33C in 1956. These two sections illustrate cases in which individual workmen can enforce their rights without having to take recourse to Section 10(1) and without having to depend on their union to espouse their case."
The above cited judgments make it clear that the purpose of the provision of S.33(C)(2) ID Act is limited. It is clear 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. 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.
LCA154/2016 ( Old LCA No:07 of 2012), Sh. Chandrika Parsad Vs. Management of Lal Bahadur Shastri Senior Secondary School 11 In D. Krishnan & Anr vs Special Officer (decision dated 16 May 2008 Arising out of SLP (Civil) No. 17518/2006) it was held :
"4. We have considered the arguments advanced by the learned counsel for the parties. The fact that proceedings under Section 33 C(2) are in the nature of execution proceedings is in no doubt, and such proceedings presuppose some adjudication leading to the determination of a right, which has to be enforced. Concededly there has been no such adjudication in the present case."
At this juncture it would be very essential to quote the relevant paragraph of the order dated 24.08.2015 passed by the predecessor of this court on the application of the claimant who sought amendment to the claim. The point of the grade of the claimantherein was specifically raised visàvis the entitlement of the workman according to the 6th Pay Commission. The said application of the claimantherein was dismissed by the predecessor of this court and it was held therein:
"4. Bare perusal of dated 08/09/.10 shows that the claimant had mentioned in the statement of claim that he was drawing salary of Rs.2800/ per month. He no where mentioned his pay scale. As per the said award, he is entitled to 40% of the last drawn salary and not to 40% of salary as per 6th pay commission.
"5. In statement of claim upon which the Award dated 08/09/10 was passed, the claimant had taken plea that he was working as Lab. Assistant with the management since July 1998. The management had taken preliminary issue that the claimant was not eligible for the LCA154/2016 ( Old LCA No:07 of 2012), Sh. Chandrika Parsad Vs. Management of Lal Bahadur Shastri Senior Secondary School 12 post of Lab. Assistant as his education qualification was only 10+2 with Arts. He was appointed Lab Attendant on humanitarian grounds on the recommendation of his brother who was the then Junior Engineer. This preliminary objection shows that the management had contested the claim of the claimant that he was Lab. Assistant, that question was not decided by the then Ld. POLC. The question has still not decided. It cannot be decided in execution proceedings like u/s 33 (C)(2) ID Act 1947."
Thus it is clear that this court has already given a finding that the question of whether the claimantherein was the Lab Assistant or Lab Attendant was not decided by the then Ld. POLC cannot be decided in execution proceedings like u/s 33 (C)(2) ID Act 1947. Nothing has been brought on record to show that the above order dated 24.05.2015 was challenged by any party. Thus the views in the said order stands unchallenged to this date. Any contrary view (without challenge in the superior courts) would led to this court reviewing / revising its own order which is not permissible under the ID Act.
In view of the above cited case laws and the facts and circumstances of the present no relief is made out in favour of the workman. The issue No.1 decided in favour of the management and against the workman.
15. The issue No.2 relating to Relief is also decided in favour of the management and against the workman. The present application of the workman is dismissed and disposed of. No Relief. No directions.
LCA154/2016 ( Old LCA No:07 of 2012), Sh. Chandrika Parsad Vs. Management of Lal Bahadur Shastri Senior Secondary School 13 File be consigned to Record Room.
Announced in the open court.
Dated:24042019 ( VEENA RANI ) Presiding Officer Labour Court SouthWest District,Dwarka Courts,ND Judge Code : DL0271 LCA154/2016 ( Old LCA No:07 of 2012), Sh. Chandrika Parsad Vs. Management of Lal Bahadur Shastri Senior Secondary School 14 IN THE COURT OF MS.VEENA RANI :PRESIDING OFFICER LABOUR COURT, SOUTHWEST DISTICT, DWARKA COURTS, NEW DELHI LCA154/2016 ( Old LCA No:07 of 2012), Sh. Chandrika Parsad Vs. Management of Lal Bahadur Shastri Senior Secondary School 24042019 Present : Sh. Markandey Shukla, ARW along with workman.
Sh. Anjani Kumar, AR for management.
Vide my separate Award, the present case/application of the workman is dismissed and disposed of. No Relief. No directions. File be consigned to Record Room.
Announced in the open court.
Dated: 24042019 ( VEENA RANI ) Presiding Officer Labour Court SouthWest District,Dwarka Courts,ND Judge Code : DL0271 LCA154/2016 ( Old LCA No:07 of 2012), Sh. Chandrika Parsad Vs. Management of Lal Bahadur Shastri Senior Secondary School