Delhi District Court
Bd vs Win Medicare Pvt. Ltd on 16 January, 2008
IN THE COURT OF MS. MAMTA TAYAL, POLC-I,
ROOM NO. 50, KARKARDOOMA COURTS, DELHI.
LCA No. 85/2006
DATE OF INSTITUTION: 17.11.2006
DATE OF DECISION: 16.01.2008
BETWEEN
Sh. Samarendra Das
S/O Sh. Bhagaban Das
R/O Narijang, Via Tirtul,
Distt. Jagat Singhpur,
Orissa.
At Present:
BD-11, Janakpuri,
New Delhi.
...... Workman
AND
1. Win Medicare Pvt. Ltd.
14th Floor, 98,
Nehru Place,
New Delhi -110019.
2. Sh. Harsh Mudgal
Dy. General Manager (HRD)
Win-Medicare Pvt. Ltd.
14th Floor, 98,
Nehru Place,
New Delhi -110019.
...... Management
ORDER
1 This is an application U/S 33 C (2) of the Industrial Dispute Act, 1947 (hereinafter referred as the Act) filed by the claimant, Sh. Samarendra Das against management. The brief facts of the application as set out by the claimant are that he had been sincerely and diligently working as a sales representative with management since 1996. After completion of probation period, he was given confirmation letter dated 04.01.1997 and he was posted at Jamshedpur. He was thereafter transferred to Mirzapur, UP in August,2000. He joined there on 01.09.2000. It was alleged that though the claimant achieved the targets given by the management still he was not considered for promotion to PSO. During his posting at Mirzapur, he had to be on long medical leave on account of viral hepatitis. Though he had sufficient leaves in his account still his dues were not paid and on his request for dues, he was transferred to Delhi. He made a representation on which he was permitted to join on 05.04.2004 in Delhi. However, he was neither treated at par with the other PSRs nor he was paid incentives, allowances and travel expenses as per rules. Meanwhile there was a settlement between the management and FMRAI ! " # # $ whereby the salary of PSRs was revised. Again the claimant was not given the benefits admissible thereunder. It is further stated by the claimant that he is entitled to receive from the management the dues as follows:-
i) Salary (wages) for July,2003 to December,2003 amounting Rs.28,686/-
ii) Vehicle allowance for April,2004 to November,2006 amounting Rs31,500/-
iii) COD settlement amount (arrears) from 1st April, 2004 to November,2006 amounting Rs.1,10,000/-
iv)Long pending expenses and deduction expenses of Rs.52,576/-
v) Travel expenses from 5th April,2004 to October,2006 amounting Rs.48,000/-
vi)Long pending incentives amounting Rs.2,50,000/- for the year 2004, 2005 and 2006.
2 Written statement/reply was filed on behalf of management. It was contended that the claimant did not come within the definition of 'workman' as provided under Industrial Disputes Act. It was further pleaded that the present application was not maintainable because the claim of the applicant has neither been adjudicated previously nor it is based on any award.
% & ' ( ) * + , - - .
On merits, the relationship was admitted but the entitlement of the workman for the dues as claimed was specifically denied. It was submitted that claimant was not entitled to any incentives or the benefits of settlement with FMRAI as his performance was not satisfactory. Similarly his claim for the past dues, allowances and travel expenses was traversed.
3 In rejoinder the claimant controverted the defence raised by the management and reaffirmed his own averments. 4 On the pleadings of the parties following preliminary issue was framed on 11.04.2007 : -
"Whether the application under Section 33-C(2) of the Industrial Disputes Act, 1947 is maintainable?
5 I have heard both the ARs at length on the preliminary issue, perused the entire record and carefully considered the matter.
My findings on the preliminary issue are as under:
Preliminary Issue :-
/ 0 1 2 3 4 5 6 7 7 8 6 It is settled law that the functions of the court exercising jurisdiction U/s 33 C (2) are akin to those of an executing court and the amounts claimed by the claimant cannot be granted by the court in absence of any prior adjudication of the claim in some other proceedings. In petition U/s 33 C (2), the court has very limited jurisdiction and it cannot arrogate to itself the functions of Industrial Tribunal in a reference U/s 10 by proceeding to determine claimant's right instead of computing the claims. The sole purpose of Sec. 33 C (2) is the implementation or execution of an award. The court is within its rights to interpret the award or settlement on which the claimant bases his claim U/s 33 C (2) but where the claim is disputed, there cannot be any occasion for computation U/s 33 C (2). Where the management disputes the relationship itself or the status of the claimant, the proper proceedings to decide the same would be in the form of reference by the appropriate Government under the Act. In this regard reliance is placed on the cases reported as 'Central Bank of India Ltd. Vs. P.S. Rajgopalan AIR 1964 SC 743', 'Union Bank of India Vs. S.S. Dhaliwal 1980 Lab. I.C. 26' and 'State of UP & Anr. Vs. Brijpal Singh (2005) 8 SCC 58'.
9
: ; < = > ? @ A A B 7 In the celebrated judgment of the Apex Court in the case of 'MCD Vs. Ganesh Razak & Anr. (1995) 1 SCC 235', Their Lordships held that labour court cannot adjudicate dispute of entitlement of cases of claim of claimant U/s 33 C (2). 8 In the case of 'Central Group and Ors Vs. Moti Ram S. Thakery 2005-II-LLJ 492, Bombay High Court', it was held that U/s 33 C (2) Labour Court does not enjoy power to decide about the status of the claimant nor issue in relation to the status of the claimant can be said to be an incidental one.
9 The case of management, 'Eiko Computers (P) Ltd. Chennai Vs. C.K. Jayachandran and Anr. 2006 LLR 979' is a direct authority on the facts of present case. In that case also claimant U/s 33 C (2) was working as Assistant Manager Marketing. The employer had claimed that he was not a workman. Hon'ble Madras High Court held that in petition U/s 33 C (2), the Labour Court cannot decide the status of the claimant as workman and therefore the petition was not maintainable.
C D E F G H I J K K L 10 In the case in hand also the management has disputed the status of claimant as workman and applicability of Industrial Dispute Act to him. Not only this, the management has also disputed the entitlement of the workman for various amounts as claimed by the claimant on the plea that from July,2003 to March,2004 he was absent without any intimation or leave application; necessary papers for vehicle allowance as per rules were never submitted by the workman; the incentives and benefits under the settlement with FMRAI were not payable on account of poor performance of the claimant and there were no other outstanding dues. It is the specific plea of the management that the claimant had received all his legal dues/ wages and he was not entitled to any of the sums claimed either on account of poor performance or by virtue of the rules. This controversy, as noted above can also not be decided in the proceedings U/S 33 C (2) of I.D. Act. In an application U/S 33 C (2) the court can proceed to compute the money due only if the entitlement is not disputed. The court cannot first proceed to decide entitlement and then compute the sum claimed. Hence, I hold that the claim under section 33 C (2) as filed by the present claimant is not maintainable. Issue is M N O P Q R S T U U V accordingly decided in favour of the management and against the claimant.
11 For the above detailed reasons, the petition U/s 33 C(2) is hereby dismissed. File be consigned to the record room. Announced in the open court on (MAMTA TAYAL) 16th January, 2008 PRESIDING OFFICER LABOUR COURT-I KARKARDOOMA COURTS DELHI W