Delhi District Court
Shri Moti Lal Sharma vs M/S Tool Room And Training Centre on 14 August, 2008
1
IN THE COURT OF MS. NISHA SAXENA, POLC, FAST
TRACK-XXI, KARKARDOOMA COURTS, DELHI
LCA No. 04/08/96
Shri Moti Lal Sharma,
C/o Engineering Workers Lal Jhanda Union(Regd.),
I-441, Karampura,
New Delhi-110015. ........Workman
Versus
M/s Tool Room and Training Centre,
Delhi Administration,
Wazirpur Industrial Area,
Delhi-110052. .......Management
Date of Institution : 12.08.96
Date of reserving for award : 13.08.08
Date of award : 14.08.08
ORDER
01. This is an application under section 33-C(2) moved by the claimant stating that he had been working with the management as a Technician for the last 15 years at the last drawn salary of Rs. 3800/- per month. He was charge-sheeted on 16.06.90. The management imposed a punishment of stoppage of three increments vide order dated 31.07.92 but in fact management stopped his five increments. He was not given 2 increments for another two years and his DA was also deducted as detailed below :-
Month Increment Percentage of Deduction of Deduction of deduction DA DA special pay amount May, 1994 40 104.00% 41.60/- 150 June 40 104.00% 41.60/- 150 July 40 114.00% 45.60/- 150 August 40 114.00% 45.60/- 150 September 40 114.00% 45.60/- 150 October 40 114.00% 45.60/- 150 November 40 114.00% 45.60/- 150 December 40 114.00% 45.60/- 150 January, 1995 40 125.00% 50.00/- 150 February 40 125.00% 50.00/- 150 March 40 125.00% 50.00/- 150 April 40 125.00% 50.00/- 150 May 80 125.00% 100.00/- 150 June 80 125.00% 100.00/- 150 July 80 136.00% 108.80/- 150 August 80 136.00% 108.80/- 150 September 80 136.00% 108.80/- 150 October 80 136.00% 108.80/- 150 November 80 136.00% 108.80/- 150 December 80 136.00% 108.80/- 150 Total 1120/- 1409.60/- 3000 Grand Total 5529.60/-
Through this application, the workman has claimed two increments, DA that was deducted and special pay of Rs. 150/-.
02. The stand of the management is that the claimant was not entitled for any increment and DA ; that the suspension period 3 was treated as "not spent on duty" and therefore, there was no question of any increment for the period of suspension.
03. From the pleadings following issues were settled.
1. Whether the application is maintainable?
2. To what amount, if any the applicant is entitled?
04. On the pleadings, parties were called upon to lead their respective evidences. In support of his case, workman examined himself as WW1 and proved his affidavit as Ex. WW1/A and the documents relied upon are Ex. WW1/1 to Ex. WW1/3. On behalf of the management Shri U.K. Gupta has been examined who proved his affidavit Ex. MW1/A and the documents relied upon are Ex.
MW1/1 to Ex. MW1/3.
05. I have heard AR for workman Shri Avdhesh Singh. Despite opportunities granted none appeared on behalf of management to address arguments.
06. My findings on the issues are as hereunder.
Issue No. 1 :-Whether the application is maintainable?
First the court has to decide whether the application is maintainable under section 33-C(2), or not. The proceedings 4 conducted under section 33-C(2) are analogous to the execution proceedings and the labour court like an executing court in the execution proceedings would be competent to interpret the award on which the claim is based. The power of the executing court is only to interpret the adjudication already made by a decree and not to adjudicate upon the disputes or claim which required adjudication for its enforcement in the form of a decree. In the instant case, the stand of the management is that the claimant Moti Lal Sharma was issued charge-sheet for serious misconduct and consequent upon enquiry a minor penalty of stoppage of three increments with cumulative effect was imposed upon him vide order dated 31.07.92. Moti Lal Sharma was suspended w.e.f. 13.6.90 and his suspension was revoked vide order dated 31.07.92 and was reinstated with immediate effect. The period of suspension was treated as "not spent on duty". It was further mentioned in the said order that the pay and allowances during the period of suspension shall be limited to the subsistence allowance already paid to him as per rules. The workman has relied upon document Ex. WW1/3, the order passed by the 5 management on 31.07.92 which is as under :-
"1. Whereas Shri Moti Lal Sharma was placed under suspension vide Order No. Admn./TRTC/53-79/3067 dated 13.6.1990.
2. Now in view of Order No. Admn./TRTC/53-79/1042 dated 31st July, 1992 Shri Moti Lal Sharma is hereby reinstated with immediate effect.
3. The suspension period shall be treated as 'NOT SPENT ON DUTY' accordingly pay and allowances during the suspension period shall be limited to subsistence allowance already paid to him as per the Rules."
It is further stated by management witness that the claimant was assigned the additional work of Team Leader vide order dtd. 02.05.1985 on certain conditions. The management vide order dated 31.07.92 withdrew the special pay for the Team Leadership from Shri Moti Lal Sharma. Ex. MW1/3 in respect of withdrawal of additional work of team leadership from the claimant is as under :-
"WHEREAS Shri Moti Lal Sharma, Technician, was given the additional work of Team Leader vide office Order No. Admn./I-25- 6 78/TRTC/9167 dated 2.5.1985 subject to the following conditions :
1. The drawal of special pay will be subject to his good performance and satisfactory conduct.
2. He maintains discipline and creates team spirit amongst the employees of EDM Section.
3. He will work in shift system/overtime as and when required.
4. The orders will remain in force so long as he is required to work as Team Leader.
As per Clauses (1) and (2) given above and in view of this Office Order No. Admn./TRTC/53-79/1042 dated 31st July 92 the additional work of Team Leadership of Shri Moti Lal Sharma is hereby withdrawn.
This order shall come in force with immediate effect."
It is further stated by the management witness that the claimant next increment was to become due in the normal course on 1.6.93 but due to punishment imposed upon him it became effective on 1.6.96. In his cross-examination, the workman has denied the suggestion that the management withdrew special increment to him. He stated that he did not receive any letter in 7 this regard from the management and particularly dated 31.07.92, though he has himself relied upon the documents and proved the same as Ex. WW1/3. The workman has also admitted that previously he was issued letter for grant of increment and whenever he was granted increment. The workman has himself stated that he has not challenged the letter dated 31.07.92 proved as Ex. WW1/3 which means that since the order dated 31.07.92 is not challenged by the management it still holds validity. The labour court under section 33-C(2) cannot grant any benefit to the workman since the main dispute still subsists between the parties. In MCD vs. Ganesh Razak 1995(1) LLJ 395, it was stated that "The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workman to a certain benefit is disputed, there being no 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 workman's entitlement and then proceed to compute 8 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 upon or recognized by the employer and thereafter, for the purpose of implementation or enforcement thereof, some ambiguity requires interpretation, that the interpretation is treated as incidental to the labour courts power under section 33C(2) like that of the executing court's power to interpret a decree for the purpose of its execution." I also place reliance upon Bombay Gas Company Ltd vs. Gopal Bhiva (1963) 2 LLJ 608. In view of the aforesaid observations, I hold that the workman cannot put forward the claim in an application under section 33-C(2) in respect of the matter which is not based on an existing right and which can appropriately be the subject matter of an industrial dispute which may require adjudication under section 10A of the Act. I accordingly hold that the application is not maintainable. Issue No. 1 is accordingly decided in favour of the management and against the workman.
07. Issue No. 2 :- To what amount, if any the applicant is entitled?
9Since the application itself is not maintainable, he is not entitled for any relief or any amount from the court. Application under section 33C(2) is accordingly dismissed. File be consigned to the record room.
ANNOUNCED IN THE OPEN COURT ON: 14.08.2008 (NISHA SAXENA) PRESIDING OFFICER, LABOUR COURT, KARKARDOOMA COURTS, SHAHDARA, DELHI 10