Delhi District Court
Sh. Shiv Prasad vs M/S N.D.M.C on 17 November, 2007
1
IN THE COURT OF MS. NISHA SAXENA, POLC, FAST
TRACK-XXI, KARKARDOOMA COURTS, DELHI
LCA No. 03/06/96
Sh. Shiv Prasad,
C/o New Delhi Nagar Palika Karamchari Union,
6, C.W.C,
Lodhi Colony,
New Delhi-3. ..........Workman
Versus
M/s N.D.M.C.,
Parliament Street,
New Delhi-1.
............ Management
References : 1. Tata Consulting Engineers & Associates
Staff Union vs. Tata Consulting Engineers and others 1996
LLR 708.
2. Awdhesh Kumar Singh vs. Ganesh Polytecs Ltd,
Raipur Rania 2204 LLR 483.
3. MCD vs. Sham Lal & other 2003 IV AD (Delhi) 397.
4. Union of India & Another vs. Kankuben (dead) by
L.R.s and others etc. etc., 2006 LLR 494.
Appearances : AR for the workman Shri K.K. Sharma.
AR for the management Shri Vikas Nagpal.
ORDER
01. This is an application under section 33-C(2) of the 2 Industrial Disputes Act moved by the workman claiming an amount of Rs. 4,36,172/- alongwith interest @ 18% per annum from the management. He has stated that he was working as a Chowkidar at Youth Centre, Lodhi Colony, NDMC w.e.f. 16.10.91. He has alleged that the management took 24 hours duty and did not provide him any national holidays or weekly offs, though he had been demanding the same. The management did not even pay him salary for the month of May, 1995. The management did not give any response to the final demand notice dated 20.12.95. He has sought an amount of Rs. 4,36,172/- against the management alongwith interest @ 18% thereon. He has also given details of the amount claimed by him as overtime allowance. The stand of the management is that the present application under section 33-C(2) of the I.D. Act is not maintainable as it is not for computation of any amount. It has been submitted that the workman was transferred from Labour Welfare Department and posted at Youth Centre, Lodhi Road w.e.f. 1.2.91 instead of 16.10.91. It is denied that the management took 24 hours duty from him and did not 3 provide him with any holidays. He used to perform duty only for 8 hours in a day by rotation with other two sub-staff. He availed all National and Gazetted holidays and also availed weekly rest after and before every six working days. The workman was given all benefits as provided to every chowkidar in NDMC and he never submitted any demand in this regard. The management has admitted the fact that the claimant was not paid for the month of May, 1995, but it was due to his absence from duty during the month. He applied for casual leave for 6 days going to his native village Sultanpur w.e.f. 4.5.95 to 6.5.95 and 8.5.95 to 10.5.95 (7.5.95 being sunday). Thereafter, he remained absent from duty without information and sanction of leave. He joined the duty on 31.5.95. No application for leave was submitted by him due to which his salary could not be released.
02. To decide the present application, following issues need to be settled.
1. Whether the application is maintainable?
2. If application is maintainable, what amount is due 4 to the applicant from respondent?
03. Both the parties were called upon to lead their respective evidence. In support of its case, claimant Shiv Prasad Shukla examined himself as WW1. He also filed his additional affidavit by way of evidence. He proved his affidavit as Ex. WW1/A and Ex. WW1/A1 and relied upon the documents Ex. WW1/1 to Ex. WW1/5. In support of its case, management examined Dr. Mamta Kochar who filed her affidavit as Ex. MW1/A and proved on record documents which are Ex. MW1/1 to Ex. MW1/3.
04. I have heard AR for workman Shri K.K. Sharma and AR for the management Shri Vikas Nagpal and gone through the entire record including the written submissions placed on record.
05. My findings on the issues are as hereunder :-
1. Whether the application is maintainable?
2. If application is maintainable, what amount is due to the applicant from respondent?
The stand of the management is that the present 5 application is not maintainable as the claim of the workmen has not been admitted by the management that he worked for 24 hours. Since the claim of the workman is not admitted by the management, the court cannot compute the amount under section 33-C(2) of I.D. Act. In support of its case, management has examined MW1 Dr. Mamta Kochar who has categorically stated that the claimant was never asked for duties for more than 8 hours in a day. He availed all national and gazetted holidays as well as weekly offs after every 6 working days and had been paid all the benefits as are provided to the said category of chowkidars in NDMC. It has been specifically denied that the claimant worked 24 hours continuously with the management. The management has also claimed that the workman absented himself from his duties during the month of May, 1995. He applied for casual leave for 6 days for going to his native place from 4.5.95 to 10.5.95 (7.5.95 being sunday) but thereafter, he remained absent from his duties without any information or sanctioned leave. He reported for duty on 31.5.95 but subsequently also no application was 6 submitted by him before sending the duty list for the month of May, 1995 for the release of his earned wages as the same can be released only after the leave availed has been sanctioned by the competent authority and that also if due in his account. MW1/2 is a leaf from the attendance roll register which is showing attendance of the claimant in the month of May, 1995. It shows that he attended duty only upto 3rd May, 1995. From 4.5.95 to 10.5.95, he remained on casual leave and thereafter, he did not report for duty. The workman has also relied upon this document and proved the same as Ex. WW1/5. Ex. MW1/3 is the letter addressed to the claimant by Office Superintendent wherein the claimant has been directed to submit leave application from 4.5.95 to 30.5.95 to enable the office to regularize the period of absence. However, the claimant never got his leave regularized for the month of May, 1995 as is evident from the record. In his cross- examination, WW1 Shiv Prasad Shukla has stated that he was performing duty for 24 hours. He never slept during duty hours. He used to be awake for 24 hours while performing his duty. He 7 also submitted that he used to take lunch, dinner and go to toilet while he was on duty. He has denied the suggestion that he was performing duties for 8 hours and rest of the period he used to do other things like resting, taking food etc. The workman has submitted overtime period from 1991 to 1995. It is beyond comprehension a to how a person can keep awake for 24 hours for a period of 5 years. The claim of the workman that he worked for 24 hours for 5 years without sleeping even for an hour cannot be believed. The same is absolutely unbelievable. He has further stated that though national holidays and other gazetted holidays were granted to him but he did not go home during these holidays because there was no other person to look after the centre. He stated that he did not know if he had given in writing to the management requesting the department to grant him national and gazetted holidays as his rest days. He has stated that he did not remember if he had given a complaint to the department in writing with respect to non-availing of the above-said holidays. He admitted that he applied for casual leaves for 6 days for going to 8 his native place w.e.f. 4.5.95 till 10.5.95. He admitted that he did not intimate to the department for non-joining duty after 10.5.95. The claimant has relied upon Ex. WW1/4 which is a circular issued by Assistant Welfare Officer. He has admitted that Ex. WW1/4 neither bears his name nor disclosed that he was ordered to perform overtime duties. He admitted that it was nowhere written in the documents that the employees named therein were required to work overtime. He has no records to show that he ever made any written demand of overtime wages w.e.f. 1991 till his demand notice dated 20.12.95.
06. In view of the above observations and the evidence brought on record, I am of the view that claim of overtime is not maintainable under section 33-C(2) as there is no prior adjudication of the same nor is it an admitted claim. I am supported in my opinion by Tata Consulting Engineers & Associates Staff Union vs. Tata Consulting Engineers and others 1996 LLR 708, wherein it was held that Section 33-C(2) is only for computing the dues that an employee is entitled in law. 9 Jurisdiction under section 33-C(2), as has been repeatedly held by the Apex Court, does not extend to the adjudication of any right which is claimed by the employee. The claim of overtime by workman under section 33-C(2) of I.D. Act cannot be entertained by the court since it is not based on existing right. I am also supported in my opinion by Awdhesh Kumar Singh vs. Ganesh Polytecs Ltd, Raipur Raina 2004 LLR 483 and MCD vs. Sham Lal & other 2003 IV AD (Delhi) 397. In the same strain is Union of India & Another vs. Kankuben (dead) by L.R.s and others etc. etc., 2006 LLR 494, wherein the Hon'ble Supreme Court has held that a claim for overtime by a workman under section 33-C(2) of the I.D. Act will not be tenable in view of the settled law that such a claim is to be adjudicated on the basis of existing right of the workman, hence, the Labour Court misdirected itself in allowing the claim of the workman.
07. In view of the above observations and case laws, I hold that the claim of overtime by the claimant under section 33-C(2) is not maintainable. As regards the wages for the month of May, 10 1995 is concerned, since the service for the said period is not regularized and he absented himself from duty for the whole month, he is not entitled for Rs. 3000/- also. Accordingly, both the issues are decided in favour of the management and against the workman. Application under section 33-C(2) is dismissed. File be consigned to the record room.
ANNOUNCED IN THE OPEN COURT ON: 17.11.2007 (NISHA SAXENA) PRESIDING OFFICER, LABOUR COURT, KARKARDOOMA COURTS, SHAHDARA, DELHI 11