Delhi District Court
Fresh Application Was Filed Wherein It ... vs New Delhi Municipal Council 2005 I on 1 August, 2011
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IN THE COURT OF SH. DAYA PRAKASH: PRESIDING OFFICER LABOUR
COURT NO. XVI:ROOM NO.10: KARKARDOOMA COURTS : DELHI
LCA NO. 189/07
1. Prakash
2. Jora Singh
3. Krishna Lal
4. Surjan
5. Deep Chand
6. Mahender
7. Rajender Singh
8. Jagbir singh
9. Chandvir
10.Balbir
11.Krishna Chand
12.Surender
13.Jai Narayan Singh
14.Krishan Kumar
15.Ranbir Singh
16.Ram Chander
17.Suraj Bhan
18.Bheem Singh
19.Kartar Singh
20.Mahabir
21.Balwan
22.Ajeet Singh
23.Rajender Prasad
24.Narayan Singh
25.Tara Chand
26.Nafeh singh
27.Surat Singh
28.Mahender Singh
29.Indarawati
30.Sardare
LCA No.189/07 1/16
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31.Baljeet Singh
32.Kuleep
33.Om Prakash
34.Anup Singh ...... Workmen
VERSUS
MCD
Through its commissioner
Town Hall, Chandni Chowk
Delhi. .... Management
Date of Institution : 03.04.07
Judgment reserved : 19.07.11
Date of decision : 01.08.11
O R D E R
1. Fresh application was filed wherein it is stated that all the workmen are in the category of Group 'C' & 'D' and are entitled to the amounts of Summer Uniforms and Winter Uniforms. It is stated that the all the workmen are entitled to the amount of liveries (Uniform & Stitching charges) as per calculation refereed as under :
Sl. Name of Workman Designation Uniform Amount Due No Due w.e.f (In Rupees) 1 Sri Prakash Mali 1995 to 2005 7668 2 Jora Singh Mali 1995 to 2005 7668 LCA No.189/07 2/16 3 Sl. Name of Workman Designation Uniform Amount Due No Due w.e.f (In Rupees) 3 Krishana Lal Mali 1995 to 2005 7668 4 Surjan Mali 1995 to 2005 7668 5 Deep Chand Mali 1995 to 2005 7668 6 Mahender Mali 1995 to 2005 7668 7 Rajender Singh Mali 1995 to 2005 7668 8 Jagbir Singh Mali 1995 to 2005 7668 9 Chandvir Mali 1995 to 2005 7668 10 Balbir Mali 1995 to 2005 7668 11 Krishan Chand Mali 1995 to 2005 7668 12 Surender Mali 1995 to 2005 7668 13 Jai Narayan Singh Mali 1995 to 2005 7668 14 Krishan Kumar Mali 1995 to 2005 7668 15 Ranbir Singh Mali 1995 to 2005 7668 16 Ram Chander Mali 1995 to 2005 7668 17 Suraj Bhan Mali 1995 to 2005 7668 18 Bheem Singh Mali 1995 to 2005 7668 19 Kartar Singh Mali 1995 to 2005 7668 20 Mahabir Mali 1995 to 2005 7668 21 Balwan Mali 1995 to 2005 7668 22 Ajeet Singh Mali 1995 to 2005 7668 23 Rajender Prasad Mali 1995 to 2005 7668 24 Narayan Singh Mali 1995 to 2005 7668 25 Tara Chand Mali 1995 to 2005 7668 26 Nafeh Singh Mali 1995 to 2005 7668 27 Surat Singh Mali 1995 to 2005 7668 28 Mahender Singh Mali 1995 to 2005 7668 29 Indarawati Mali 1995 to 2005 7668 30 Sardare Mali 1995 to 2005 7668 LCA No.189/07 3/16 4 Sl. Name of Workman Designation Uniform Amount Due No Due w.e.f (In Rupees) 31 Baljeet Singh Mali 1995 to 2005 7668 32 Kuldeep Mali 1995 to 2005 7668 33 Om Prakash Mali 1995 to 2005 7668 34 Anup Singh Mali 1995 to 2005 7668 It is prayed that this court may kindly compute the benefits of liveries in terms of money.
2. Notice of application was issued to management. AR for management appeared and filed WS/Reply wherein it is stated that the present claim is not maintainable in view of the fact that the Labour Court under section 33 C (2) of ID Act cannot first decide right to entitlement and then compute the amount due under the said entitlement. It is further stated that the application of the applicant is not maintainable and is liable to be rejected as the same is not in accordance with the rule 62 (2) of the Industrial Dispute (Central) Rules 1957 and has not moved on the prescribed 'Form K3' of the said rules. It is further stated that this court is having no jurisdiction to decide the claim of the applicant in the present application, it is an admitted fact that there is no prior adjudication or settlement between the parties on the question of payment of cost and stitching charges if liveries are not provided to them. It is further stated that there are no such provisions for purchase of uniforms from an open market by the employees themselves. It is further submitted that the claimants have not taken any permission from the management before the alleged purchase. It is submitted that the uniform can not be purchased from the open market but is the LCA No.189/07 4/16 5 prerogative of the management to provide the same to the workman. It is further stated that the uniform cannot be computed in terms of money as such this court has no jurisdiction to entertain the present application under section 33 C (2) of ID Act. It is submitted that apparently there are the disputed questions of facts in the present case as such the same can only be adjudicated u/s 10 of the ID Act and this court has no jurisdiction to entertain the present application without prior adjudication of the issues. It is further submitted that in the absence of preexisting right section 33 C (2) cannot be used to by pass the necessity of adjudication of the Industrial Dispute to establish a substantive right under section 10. It is further stated that the relief claimed by the applicant by way of present application is not covered under section 33 C (2) of Industrial Dispute Act, 1947 as the matter in dispute has not yet been adjudicated upon by any court of competent jurisdiction and there is no prior settlement or award against the employer in this regard.
3. Subsequently, Rejoinder to the W.S. of the management was filed wherein the workman has denied the allegations made in the WS and reiterated the averments contained in the claim.
4. After completion of pleadings, following issues were framed on 02.04.08 :
1. Whether petition u/s 33C(2) of I.D. Act is maintainable or not?
2. Relief.
Issue no. 1 was taken as preliminary issue.
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5. Arguments were heard on the point of maintainability. Order on preliminary issue was passed vide order dated 12.08.08 by my Ld. Predecessor wherein it was held that the petition filed under section 33 C (2) of ID Act is not maintainable.
6. On 15.09.10 file was remanded back by Hon'ble High Court of Delhi. Thereafter, case was adjourned for WE on the issue of entitlement which was already framed on 02.04.08.
Relief?
7. Sh. B. K Prasad was examined as WW 1 and Sh. Sri Prakash was examined as WW 2.
8. Sh. B. K Prasad was examined as WW 1 and relied upon the documents Ex. WW1/1 to WW1/7.
In cross examination of WW 1, he deposed that he was not a workman of MCD. He admitted that his name was not appearing in the list of witnesses on behalf of union. He further stated that he had given a written representation to the MCD regarding the payment of uniform and stitching charges but the same has not been filed on record. He admitted that in the appointment letter there was no provision of payment/ issue of uniform/stitching charges. He stated voluntarily that workman has right to receive these after completion of one year. He further stated that workmen had been told that if the workmen were not wearing uniform they would not be given washing allowance. He admitted that LCA No.189/07 6/16 7 the instructions to wear uniform was not in written form.
WW 2 Sh. Sri Prakash, in evidence by way of affidavit, supported the averments made in the claim.
In cross examination, he stated that he had been claiming the uniform as they were getting the same from the management. There was no provision for payment for supply of uniform. He stated voluntarily that they had been getting the said facilities after completion of one year. He further stated that he had not taken any written approval from the department for stitching uniform himself. He suggested it wrong that he had never got the uniform stitched. He had not been provided uniform and dress allowance since 1995. He further suggested it wrong that MCD can take the work from the workman even without providing uniform/stitching and dress allowance. He further suggested it wrong that he was paid all the uniform by the management. He stated voluntarily that uniforms were not supplied for the period 1995 to 2005.
9. No MW has been examined on behalf of management. Hence, ME was closed.
10. Final arguments heard on behalf of both the parties.
AR for workman stated that several category of employees were deputed in the department of MCD to perform its obligatory functions. It is stated that the workmen are entitled to get the benefits of liveries/uniforms and washing allowance to wash these liveries supplied by the management. It is further stated that the workmen in the category of Group C and D like Choudhary, Mali, LCA No.189/07 7/16 8 Chowkidar, Sweeper, Machineman, Hedgmen, pump Operator, Blacksmith, Bhisti, Bullackman, Asst. Pump Driver, Painter, Beldar, Driver, Fitter, Tech. Supervisor, etc. are entitled to the cost including stitching charges and quantum of liveries as per the orders issued by the Deptt. Of Personnel & Training, Govt. Of India. It is further stated that as per rules they should have been distributed the uniform but the employees have neither properly been distributed uniform nor cash payment in lieu of uniform has been paid to them since 1995.
On the other hand, AR for management has stated that the application of the applicant is not maintainable and is liable to be rejected as the same is not in accordance with the rule 62 (2) of the Industrial Dispute (Central) Rules 1957 and has not moved on the prescribed 'Form K3' of the said rules. It is further stated that this court is having no jurisdiction to decide the claim of the applicant in the present application, without prior adjudication of the issues involved in the present case under section 10 of the ID Act. It is further stated that for entitlement of a claim under section 33 C (2) of ID Act there must be an existing right in favour of the workmen and against the management.
12. I have seen the claim, reply, evidence, documents and considered the submissions advanced by both the parties and I feel that the present LCA deserves to be dismissed :
(i) AR for management states that the petition under section 33 C (2) is time barred and cites Kapur S.K. Vs. New Delhi Municipal Council 2005 I LLJ P. 219 stating that the claim as old as 1995 onwards is being made in the LCA No.189/07 8/16 9 present petition and delayed claim bars the entitlement of the workman. On the other hand, AR for workman states that Limitation Act is not applicable in the proceedings under section 33 C (2) and cited Chief Mining Engineer East India Coal Co. Ltd. Vs. Rameshwar and ors., 1968 SCR 140 wherein our Lordship of Hon'ble Supreme Court has held that :
"There is no justification in introducing a period of limitation provided in the limitation act into the provisions of section 33 C (2)."
I have perused the authorities cited by AR for workman and AR for management. The citations by AR for workman relates to those cases where the right of the workman has already been established. While the present case is with respect to the decision of the right by this court e.g in Chief Mining Engineer East India Coal Co. Ltd. Vs. Rameshwar and ors., 1968 SCR 140. The only question was for implementation of award. The entitlement and right was already decided by the court. In that circumstances it was held by their Lordship of Supreme Court that Limitation Act is not applicable rather to say there is no limitation in application under section 33 C (2) of ID Act. Similarly in Town Municipal Council, Athani Vs. Presiding Officer, Labour Court, Hubli & ors.,(1970) I SCR 51 where the right was already there as there was a question of the entitlement of benefit. In National Buildings Construction Corporation Vs. Pritam Singh Gill and ors., (1973) 1 SCR 40, the workman was seeking legal benefit during suspension period after dismissal order was passed against him. Naturally right is there with the workman and under that LCA No.189/07 9/16 10 circumstance it was held by their Lordship of Supreme Court that Right cannot be defeated by law of Limitation. In Bombay Gas Co. Ltd. Vs. Gopal Bhiva and ors., (1964) Vol. 3 SCR 709, what was to be decided was to implementation of the award.
Hence, the cases cited by the AR for workman are with respect to those decisions where the right was already decided in favour of workman and in such cases, it was held by the superior court that Limitation Act is not applicable.
(ii) However, there are other set of cases where the Supreme Court has held that the delayed claim is bad claim as the Labour law or Tribunal was called upon to decide upon the right of the workman. In such cases the delay was a ground for negating the claim of the workman. In the present case the right of the workman has not been decided yet. The workman in the present case is seeking to decide his right as well as to calculate on the basis of decision of the right. In such cases, the workman should have approached the court as early as possible. Hence, this fact goes against the workman as claim as old as of 1995 is being made in the present petition filed in the year 2006.
State of Punjab Vs. Sh. Kali Dass & ors. 1997 LLR 349, Hon'ble Punjab and Haryana High court has discussed on the point of delay and limitation in raising the Industrial Dispute and denied the relief to the workman after raising the Industrial Dispute after expiry of three years.
(iii) Section 33 C (2) provides as under :
"Where any workman is entitled to receive from the employer LCA No.189/07 10/16 11 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.)"
In Jessop & Co. M. Mukherjee, 1975 Lab IC 1307, the following principles, for grant of relief under section 33 C (1) and C(2) were given :
(1) Where any money is due under a settlement or an award or under the provisions of chapter 5A, s 33 C (1) will be attracted.
(2) The money due under s 33 C (1) may be a specified amount or may have to be arrived at by arithmetical calculation or verification simplicitor.
In other words, in cases where there is no dispute as to the amount or as to its computation s 33 C (1) would apply.
(3) Section 33 C (1) is more comprehensive than s 33 C (1). It applies not only to cases of a settlement or award or to cases under chapter 5A of the Act, but to other cases as well.
(4) when money due is not specified or the benefit capable of being computed in terms of money, has not been determined, s 33 C (2) would be attracted in as much as the labour court, by a process of computation to be found out and applied by it, has to determine the amount of money due. In LCA No.189/07 11/16 12 other words, in cases of disputes as to calculation or computation of money due or benefit capable of being computed in terms on money, s 33 C (2) has to be invoked.
(5) Section 33 C (2) also enables a labour court to inquire into and decide upon the right to receive the money to be computed, provided that the determination of that right is incidental or ancillary to the computation.
(iv) The petitioners are not clear whether payment with respect to uniform and stitching charges are part of the service conditions or not. If these are part of the service condition, then claimants are entitled to receive the same. If these are not part of the service condition, then they have to prove the existence of their right through Industrial Dispute. It is a fact that no industrial dispute has been raised by the petitioners till now with respect to payment of uniform as well as stitching charges. WW1 Sh. B.K. Prasad, who deposed as President of the MCD, General Mazdoor Union, stated that he filed the present suit/petition on the basis of service condition under which workmen are entitled to uniform and stitching charges. While stating so, it is admitted by WW1 that in the appointment letter, there is no provision of payment/issue of uniform/stitching charges. Similarly, WW2 stated that there is no provision for supply of uniform. WW2 further stated that, "it is incorrect to suggest that there is no provision in the general service condition to pay for uniform and washing allowance." He further stated that he has not read General Service Conditions. If payment for supply of uniform and stitching charges is part of the General Service Condition, then my LCA No.189/07 12/16 13 inference is that such service condition has not been placed on record. Since such general service condition has not been placed on record, the petitioner has failed to prove the right with respect to the same.
In MCD v/s Rohtash, C.W.P.No.1216 & C.M.No.2224/95 dt. 28.02.96, P.554 it has been held that:
"Determination of the dispute relating to service condition could be undertaken only on a reference of the dispute. Such prior determination is necessary for computation of benefits under Section 33C(2)."
(v) For uniform, usually a block year is provided. For each block year, MCD passes resolution in the house and on the basis of resolution, circulars are issued. It is well established that circular has no legal enforceability unless backed by resolution of the house of the MCD. Even if, the circular can be enforced, then the circular has a validity only for the period of block year. Once the block year is lapsed, then any payment or enforceability of the circular is also lapsed. The entitlement with respect to the block year is similar to the entitlement to Govt. Servant for LTC. If in a particular block year, Govt. Servant does not avail his LTC then by the end of the block year, his claim lapses. There is no provision for payment of LTC after the block year. It is a facility to be used and then the Govt. Servant is entitled for reimbursement. Anyhow, the Govt. Servant has to prove that he used the benefit and on the basis of that, he is entitled for reimbursement. In the present LCA, none of the workmen has LCA No.189/07 13/16 14 proved by enclosing receipts that they have purchased the uniform. Further, they have also not proved by receipt that they incurred expenses of stitching. Unless and until, the receipts are filed, the workmen are not entitled for reimbursement.
(vi) A circular dt. 28.09.99 was filed by the management wherein it was held that,"Nondistribution of the available items of uniform will be all lapsed on the part of concerned department, which may please note."
(vii) The claimants have placed on record certain circulars of various dates of various block years. These circulars only provides for stitching charges with the directions to collect the unstitched uniform from the stores. Why the workmen could not collect the uniform from the store and if the uniform was not available, whether they made any complaint to the Higher Authorities during the block year or not. Such vital facts, which are necessary, has not been placed on record by the petitioners.
(viii) AR for management also placed on record O.M. No. F14/9/72 JCA dt. 31.10.72 stating that "in no case should uniforms be supplied after the expiry of the season for which they are intended. It has not been possible to agree to such relaxation as the concerned employees cannot obviously use the uniforms in the season which has already expired." If uniform cannot be supplied by this O.M. after expiry of season, then how can the equivalent money can be given to the workmen.
LCA No.189/07 14/16
15 In Punjab Water Supply & Sewerage Board Vs. Ranjodh Singh (2007) 2 SCC 491, our lordship of Hon'ble Supreme Court has held that:
"a policy decision cannot be adopted in terms of a circular letter/executive instruction."
(ix) Vide O.M No. 23/9370JCA dated 4.12.71, it is provided that the supply of uniform is subject to the condition that these cannot be claimed as a right and that the uniforms do not become the personal property of the employee.
(x) In the same O.M mentioned above it is provided that in no case should uniforms be supplied after the expiry of the season for which they are intended. The life of uniforms should be reckoned on a seasonal basis. It is further provided that in this very O.M that the reimbursement of stitching charges at the prescribed rates should be done only after the stitched uniforms are produced with the bill of the stitching charges.
(xi) There is no circular or resolution placed on record by the petitioners that in the absence of supply of uniform, they are entitled to the cost of the uniform. The petitioners have given some cost. Whether that cost is correct or not, has not been verified. That could have been verified if the petitioners have purchased the uniform with a receipt. Vital facts which are required have not been provided by the petitioner.
LCA No.189/07 15/16
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13. In view of the authorities and the above reasons, I feel that workmen are not entitled to any relief. Hence, the application of the claimants is dismissed. File be consigned to the record room after necessary compliance by Ahlmad.
Announced in the Open Court (DAYA PRAKASH)
st
on 1 August, 2011 Additional District & Session Judge
Presiding Officer labour Court XVI
Karkardooma Courts : Delhi.
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