Delhi District Court
Smt. Suman Devi W/O Late Sh. Balakaram vs Ganesh Razzaq Reported As 57 ( 1995) Dlt ... on 29 July, 2008
IN THE COURT OF MS. MAMTA TAYAL, POLC-I,
ROOM NO. 50, KARKARDOOMA COURTS, DELHI.
LCA No.09/2007
DATE OF INSTITUTION: 24.07.2004
RESERVED FOR ORDERS: 14.07.2008
DATE OF DECISION: 29.07.2008
BETWEEN
Smt. Suman Devi W/O Late Sh. Balakaram
R/O C-71 B, Begampur Extn.
Delhi - 110041. ...... Applicant
AND
Delhi Development Authority
Vikas Sadan,
New Delhi - 110001.
...... Management
ORDER
1 This is an application U/S 33 C (2) of the Industrial Dispute Act filed by the widow of workman Late Sh. Balakram against management claiming a sum of Rs.1,66,612/- as due from the management on account of overtime wages from 1984 to 1993.
2 Claim of the applicant was contested by the management by filing detailed written statement. 3 No rejoinder was filed by the applicant. On the pleadings of the parties, following issue was framed on 19.11.2007:-
I) Whether the claim of the claimant is not maintainable in view of preliminary objection no.3 of w/s?
The issue was disposed of holding that claimant be given an opportunity to lead evidence to prove her claim.
4. Thereafter, the case was listed for worker evidence. But neither the worker appeared nor filed her affidavit in evidence despite repeated opportunities. She even did not deposit the cost imposed on her. Hence, worker evidence was closed. I have perused the file. As noted, applicant has not come forward to substantiate her claim with any evidence despite ample opportunities. In circumstances, I am satisfied that applicant has no dispute with the management. Hence, she is ! " # $ % & ' ( % % ) not entitled to any relief or amount as claimed in the present case. The petition of worker u/s 33 C (2) is accordingly dismissed. File be consigned to the record room. Announced in the open court (MAMTA TAYAL) on 29th July, 2008 PRESIDING OFFICER LABOUR COURT-I (SIX COPIES ATTACHED) KARKARDOOMA COURTS, DELHI * + , - .
/ 0 1 2 3 0 0 4 I.D. No.09/2007 29.7.2008 Present : None.
Vide my separate order, dictated and announced in the open court. Application is disposed off. File be consigned to Record Room.
(MAMTA TAYAL) ADJ/POLC-I 29.07.08 5 6 7 8 9 : ; < = > ; ; ?
The facts necessary for disposal of present application in brief are that the claimant's husband had been working as security guard w.e.f. 06.03.84 with the management. It was averred that since his appointment he was made to work overtime for 12 hours but he was never paid any overtime wages. He worked with the management till 1993, hence he is entitled to overtime wages of Rs.1,66,612/- from the management. He has given a break up for his claim, which is as under:-
SN PERIOD AMOUNT(Rs.
)
1 4 hours overtime for the year 6600/-
1984 for 1200hours @ Rs.1100/-
per month
2 4 hours overtime for the year 6900/-
1985 for 1200hours @ Rs.1150/-
per month
3 4 hours overtime for the year 6600/-
1986 for 1100hours @ Rs.1200/-
per month
4 4 hours overtime for the year 6075/-
1987 for 900hours @ Rs.1300/-
per month
5 4 hours overtime for the year 8100/-
1988 for 1200hours @ Rs.1350/-
per month
@ A B C D
E F G H I F F J
SN PERIOD AMOUNT(Rs.
)
6 4 hours overtime for the year 7700/-
1989 for 1100hours @ Rs.1400/-
per month
7 4 hours overtime for the year 9300/-
1990 for 1200hours @ Rs.1550/-
per month
8 4 hours overtime for the year 9152/-
1991 for 1100hours @ Rs.1646/-
per month
9 4 hours overtime for the year 11076/-
1992 for 1200hours @ Rs.1846/-
per month
10 4 hours overtime for the year 11803/-
1993 for 1200hours @ Rs.2046/-
per month
TOTAL 83306/-
DOUBLE 1,66,612/-
3 In its reply the management contended that the
application U/S 33 C-2 is maintainable as the claim filed by the claimant is highly belated. The claimant has filed the present claim after passing of the award in favour of Sh. Lakhan Singh on 17.03.2004. It was stated that the workman was working on daily wages. All the averments of the claimant regarding were denied because the claimant was not entitled to any amount K L M N O P Q R S T Q Q U whatsoever.
4. Rejoinder was filed on behalf of claimant in which he reaffirmed all his contentions and controverted the defence raised by the management.
5. On the pleadings of the parties following preliminary issue was framed on 19/11/2007 : --
(i)Whether the claim of the claimant is not maintainable in view of preliminary objection no.3 of w/s?
6. Arguments on preliminary issue were advanced by both the sides. I have perused the entire records carefully and given my thoughtful consideration to the matter.
My findings on the aforesaid issue are as follows:-
ISSUE No.1 The management has contended that the functions of the court exercising jurisdiction U/s 33-C(2) of the ID Act, are akin to those of an Executing Court and the amount claimed by the V W X Y Z [ \ ] ^ _ \ \ ` workman cannot be granted by the court in the absence of any prior adjudication of the same in some other proceedings. The ld. AR of the workman has on the other hand, contended that what he is asking for are statutory entitlements and do not need any prior adjudication.
It is well settled that U/s 33-C(2), the court acts as an executing court and can only compute the recognised or already adjudicated benefits in favour of the workman and cannot decide the workman's entitlement thereto. In MCD vs. Ganesh Razzaq reported as 57 ( 1995) DLT 364, the Hon'ble Supreme Court has held as follows :
Para 12: "The labour court has no jurisdiction to first decide the workman's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33-C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recoganised by the employer and thereafter for the purpose of a b c d e f g h i j g g k implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the labour court's power Under Section 33-C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution." The above position of law has been reiterated thereafter by the Hon'ble Supreme Court in a number of cases including 'State of UP vs Brij Pal Singh reported as (2005) 8 SCC
58.
Even the judgment relied upon by AR for workman reported as 'Jeet Lal Sharma vs. POLC-IV & Anr, 84 (2000) DLT 706, reiterates the same proposition of law that U/S 33-C (2) workman can file application only when he is entitled to receive money claimed by him and the entitlement refers to the existing rights which would be established if it has been earlier adjudicated upon and recognised by the employer. If entitlement to receive money is in dispute application U/S 33-C l m n o p q r s t u r r v (2) is not maintainable. It was further held that once employee accepts the entitlement as one of the service conditions, the application will be admissible. If the claim is based on accepted service conditions application is valid.
In the present case, the management has disputed the entitlement of the workman to overtime allowance. There is nothing on record placed by workman to show that as per service conditions he was entitled to receive overtime allowance. He has merely filed a copy of an office order of DDA dated 10.05.1995 which says overtime allowance will be paid to the staff which is required to perform duties on more than eight hours after obtaining prior approval for performance of extra duty from competent authority. Firstly this order is of May, 1995 whereas the workman is claiming overtime allowance for period much prior to that. Secondly, it is clearly mandated that prior approval of competent authority for performance of extra duty is a condition precedent before any overtime allowance can be paid. It is not even pleaded by the workman that any prior permission of competent authority for overtime in his case was taken. In fact, the claim itself is totally w x y z { | } ~ } } vague. No actual dates have been specified when the workman was allegedly asked to work for overtime. He has claimed overtime allowance for the whole year starting from 1985 till 1992. Even the amount calculated for any particular year does not match with the overtime period claimed and salary for that year. Besides this, as per workman he was made to work overtime daily since very beginning i.e. w.e.f. 21.08.1974 which is the date of his joining. However, in his application he has claimed overtime from 1985. There is no explanation as to why he is not claiming payment for period from 21.08.1974 to 1984. Besides this in the detail annexed with the application he has demanded overtime for 1984 as well which is not demanded in the main application. The entire claim is contradictory and vague. Even the amount calculated is not commensurate with the period claimed for any particular year.
In the recent judgment reported as Union of India vs Kunkuben (Dead)by LRs and others (2006 LLR 494), the Hon'ble Supreme Court has held Overtime Allowance cannot be claimed U/s 33-C(2) of the ID Act on the ground that the workman's entitlement to the same requires prior adjudication.
In view of this the claim of the workman under the Head 'A' is not tenable under Section 33-C(2) of the ID Act.
AR for the management has also contended that the claim of the workman is liable to be rejected being time barred. AR for workman relying upon the case of 'Collector Land Acquisition Anantnag & Anr. vs. Mst. Katiji & Ors.' submitted that Limitation Act enables the court to do substantial justice disposing of the matters on merits. He pointed out that the workman was waiting for decision of labour court in a similar matter filed by another workman against DDA. When the claim of said workman was allowed by labour court-IV vide order dated 08.03.2004, the present application was filed by the workman. In my considered opinion pendency of another similar case in the court cannot be a ground for the claimant for not filing his own claim. Every case is decided on its own facts. In fact, the workman should have been more vigilant and motivated when his co-worker filed his case way back in 1993. Even otherwise there is no explanation as to why the present claim was filed more than two years after the said judgment. The case relied upon by AR for workman does not help him at all as in that case the total delay was of four days whereas in present case the workman is claiming overtime for the work done in 1985 to 1992. Admittedly, no specific limitation period is provided for an application U/S 33-c (2) under I.D Act, still the court has to see the delay in approaching the court as a stale claim as held in 'Krishi Utpadan Mandi Samiti vs. Pahal Singh 2007 LLR 579'. Same was the view expressed by Hon'ble Bombay High Court in the case of 'Union of India vs. Narayana M (2002) IVLLJ (Supp) Bom. 912'. There is no sufficient explanation in our case for the delayed claim.
For the foregoing reasons, I hereby hold that the relief sought by the workman/applicant does not fall under the domain of Section 33-C (2) of the I.D. Act and is otherwise highly belated. The application is devoid of any merit and is accordingly dismissed. File be consigned to Record Room. Announced in the open court on (MAMTA TAYAL) 29th September, 2007 PRESIDING OFFICER LABOUR COURT-I KARKARDOOMA COURTS DELHI