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Delhi District Court

Industrial Tribunal vs The on 16 March, 2023

IN THE COURT OF AJAY GOEL, PRESIDING OFFICER
    INDUSTRIAL TRIBUNAL-01, ROUSE AVENUE
    DISTRICT COURT, D.D.U. MARG, NEW DELHI
 PREVIOUSLY WORKMAN AS PRESIDING OFFICER,
   LABOUR COURT-06, ROUSE AVENUE DISTRICT
        COURT, D.D.U. MARG, NEW DELHI.

LCA No.                             2385/19
Date of Institution                 11.04.2022
Date of Award                       16.03.2023


BETWEEN THE WORKMAN
Sh. Vinod Tiwari S/o Sh. Durga Prasad, Aged: 50 Years Mobile
No. 9899864274, R/o H. No. 14, Gali No. 5, Ambedkar Nagar,
Haiderpur, Delhi-110088.
Through Sh. Umesh Dubey General Secretary, Mob. No.
9818981841, Rashtriya Majdoor Shang, (Regd. 1433), 157,
Pratap Khand, Vishwakarma Nagar, Shahdara, Delhi-110095.

                             AND
THE MANAGEMENT OF
1. M/s Maonj Cable Ltd.
90/3, Industrial Complex, Haider Pur, Merath Wali Gali, Delhi-
110088.
2. Mr. Manoj Garg (Director)
BP-47, Shalimar Bagh, Delhi-110088.
3. Mr. Rajender Kumar Garg (Managing Director)
BP-47, Shalimar Bagh, Delhi-110088
4. Mr. Balwan Jindal (Additional Director)
G-3, H. No. 139, Rohini, Sector-11, Delhi-110085


                           ORDER

1. Vide this order, I shall dispose off the statement of claim as filed by the workman directly in labour court under section 33 C (2) of the Industrial Dispute Act, 1947 (for short 'I.D. Act') against the management with a prayer that the management be directed to pay earned salary for the month of LCA No. 2385/19 Page 1 of 16 July and August 2019, notice pay and benefits u/s 25 F of the I.D. Act, minimum bonus for the period 2018-2019 and 2019- 2020 under bonus Act, money for 45 days, overtime money and service compensation according to 15 days per year, alongwith 18% interest.

2. Brief facts as stated by the workman in his statement of claim are that workman had been working with the management since 19.07.1997 as a Helper and his last drawn salary was Rs. 13145/- per month; that the main work of the management was manufacturing of the cables used by railways and to do this work more than 100 workers were engaged therefore, the Industrial Employment Standing Oder) Act 1946 applies to the management and the conditions of service of the applicant/employee are Modal Applicable by Standing Orders; that the management vide its letter dated 04.09.2019 on the false pretext of closure, terminated the services of the workman on 29.08.2019; that the management before removal of the workman, did not pay the outstanding amount to him as per terms of service i.e. earned salary for the month of July and August 2019, notice pay and benefits u/s 25 F of the I.D. Act, minimum bonus for the period 2018-2019 and 2019-2020 under bonus Act, money for 45 days, overtime money and service compensation according to 15 days per year.

The the workman sent a demand notice on 04.09.2019 to the management however, management did not reply and comply the same; that presently also the factory of the management is running and management is earning profit from its business; that management No. 1 is the factory where the workman was working, management No. 2 is its Director, LCA No. 2385/19 Page 2 of 16 management No. 3 is its managing Director and management No. 4 is the Assistant Director and his residential address.

Lastly it is prayed that this court may kindly pass an award in favour of the workman thereby directing the management to pay his dues as stated above alongwith 18% interest.

3. Notice of the claim were issued to the all the managements. Since no one appeared on behalf of management No. 4 and 2 despite services, management No. 4 was proceeded exparte vide order dated 26.02.2020 and management No. 2 was proceeded exparte vide order dated 25.01.2022.

The management No. 1 and 3 contested the matter and filed its reply/written statement taking preliminary objections that the present claim of the workman is totally false and frivolous; that the workman has not come before the court with clean hand and has suppressed the material facts; that there is no relationship of employee and employer between the workman and the management; that the present claim is sheer misuse of the legal provision of the I.D. Act 1947; that the management started working on 15.03.1990 and after few years of working, since management was not having much work, management stopped working; that the management paid all the legal dues of their workers working at that time; that thereafter management against started working in year 2009-2010 by the name of Manoj Cable Ltd.; that management never employed/engaged more than 100 workmen during its work tenure; that management was running its business by engaging approx 52 workmen and some time daily wagers/job work as per the work load; that the management went into loss in the last two LCA No. 2385/19 Page 3 of 16 years; that management paid to its workmen without any work and also tried to find some work; that management had taken loan of Rs. 46 crores, which management failed to pay due to non availability of work and bank declared management NPA ; that the management did not follow unfair labour practice; that management issued notice to all its workman in June 2019 intimating that management is going to close its factory due to financial loss and with regard to the same the management also affixed notice in the premises of the management; that the management also sent a reminder notice to the workman in the month of September 2019; that the management also intimated the labour office in the month of June 2019 regarding the same.

In parawise reply it has been stated that there was no relationship of employee and employer between the workman and the management. Rest of the contents of the claim were categorically denied being false and baseless.

Lastly, it has been prayed that the claimant is not entitled to any relief and application of the applicant be dismissed.

4. The workman thereafter filed rejoinder to WS of management No. 1 and 3 wherein all the contents of the written statement were denied and the facts of the statement of claim were reiterated and reaffirmed as correct and it is prayed that an order be passed in favour of the workman in terms of prayer made by him in claim.

5. After the completion of the pleadings of the parties, following issues were framed vide order dated 08.03.2022:-

1. Whether the workman is entitled to LCA No. 2385/19 Page 4 of 16 recover the amount from the management as prayed for in his application under section 33 (C) (2) of the Industrial Dispute Act? OPW

2. Whether the application of the claimant under section 33 (C) (2) of the Industrial Disputes Act is maintainable? OPW

3. Whether relationship of employee and employers existed between the claimant and the management? OPW

4. Relief.

After the framing of issues, both the parties were given opportunity to lead their evidence to prove their respective contentions/pleas. The workman accordingly produced himself in witness box as WW1 and tendered his evidence by way of affidavit Ex WW1/A and relied upon documents i.e. Aadhar card of the workman as Ex WW1/1, ESIC Card is Ex WW1/2, copy of LIC payment receipt is Ex. WW1/3, photocopy of cheque bearing no. 386045, dated 22.12.2016 amounting to Rs. 8386/- is Ex. WW-1/4, photocopy of letter dated 04.09.2019 of National Labour Union is Ex. WW1/5. The workman was also cross-examined on behalf of the management. The workman closed his evidence on 03.12.2022.

Thereafter matter was fixed for management's evidence. The management examined Sh. Akshay Bharadwaj, Accountant of the management as MW1 and tender his evidence by way of affidavit Ex MW1/A and relied upon documents i.e. letter of SBI to management dated 02.07.2019 declaring management as LCA No. 2385/19 Page 5 of 16 NPA as Mark A, attachment/possession notice of SBI dated 07.09.2019 as Mark B, Rule -8(1) Possession notice dated 07.09.2019 as Mark C, copy of balance sheet of management as on 31.03.2020 as Mark D. He was also cross-examined by Ld. AR for the workman and accordingly management closed its evidence on 09.02.2023.

6. I have heard the arguments of the parties and perused the record.

7. On perusal of record, my issue-wise findings are as follows:-

Issue No.1 Whether the claimant is entitled to recover the amount from the managements as prayed for in his application under section 33(c) (d) of the Industrial Disputes Act? OPW Issue No. 2. Whether the application of the claimant under section 33 (c) (2) of the Industrial Disputes Act is maintainable? OPW and Issue No. 3 Whether the relationship of employee and employers existing between the claimantand the managements?

All these issues are taken up together, being interconnected.

The present application has been filed under Section 33 (c) (2) of the Industrial Dispute Act, 1947, which reads as under:

"Where any workman is entitled to receive from the employer 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 LCA No. 2385/19 Page 6 of 16 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)".

(provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit).

All the relevant facts needed for the just decision of the case are available on the record. Management had not been able to produce anything to suggest that there was no relationship of employee and employer between the workman and the management or that the workman has not come to this court with clean hands and has suppressed material facts.

Before proceedings further, the scope of provisions of Section 33 (C) (2) of the Act is required to be seen which is now settled in Jeet Lal Sharma and Presiding Officer, Labor Court IVth and Another [2000 (85) FLR 268] Single Bench of our Hon'ble High Court has explained the scope of application u/s 33 (C) (2) of the Act as follows:

"To invoke jurisdiction of the Labour court under the present Section 33-C (2) either of the two ingredients must be present. The first is that workman must be entitled to receive from the employer any money or benefit which is capable of being computed in terms of money and the second one is that a question must have arisen as to the amount of money due, or as to the amount at which such benefit should be computed. A plain reading to the section shows that the labour court has jurisdiction to decide both ingredients. Thus in a case where both these ingredients are satisfied or either of these LCA No. 2385/19 Page 7 of 16 ingredients is satisfied, the Labour Court will have jurisdiction to determine the question. The Legislature has empowered the labour court to decide a dispute as to the right of workman to receive from the employer any money or any benefit which is capable of being computed in terms of money and also has authorised it to decide the question as to the amount of money due or as to the amount at which such benefit should be computed."

In MCD VS Ganesh Razak and Another 1995-1 L.L.N. S.C. 402 relied upon by learned authorised representative of the management, the Apex Court has analysed the legal position on the basis of its earlier decisions and has held as follows:

"........The Labour Court has no jurisdiction to first decide the workmen'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 recognised by the employer and thereafter for the purpose of implementation enforcement thereof or some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power interpret the decree for the purpose of its execution.

In State of U.P. VS Brijpal Singh 2005 VIII AD (SC) 250, it was held:

"15. Thus it is clear from the principle enunciated in the above decisions that appropriate forum where question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of Act is made. Thereafter, the Labour Court, in the instant case, cannot arrogate to itself functions of an Industrial Tribunal and entertain the claim made by the respondent herein which is not LCA No. 2385/19 Page 8 of 16 based on an existing right but which may appropriately be made the subject matter of an industrial dispute in reference under Section 10 of the I.D. Act. Therefore, the Labour Court has no jurisdiction to adjudicate the claim made by the respondent herein under Section 33C(2) of the I.D. Act in an undertermined claim and until such adjudication is made by the appropriate forum, the respondent- workman cannot ask the Labour Court in an application under Section 33C(2) of the 1.D. Act disregard his dismissal as wrongful and on that basis to compute his wages. It is therefore, impossible for us to accept the arguments of Mrs. Shymala Fappu that the respondent-workman can file application under Section 33C(2) for determination and pay rent of wages on the basis that ne cominues to be in service pursuant to the said order passed by the High Court in Writ Petition No. 15172 of 1987 dated 28.10.1987. The argument by the learned counsel for the workman has no force and is unacceptable. The Labour Court, in our opinion, has erred in allowing the application filed under Section 33C(2) of the L.D. Act and ordering payment of not only the salary but also bonus to the workman although he has not attended the office of the appellants after the stay order obtained by him. The Labour Court has committed a manifest error of law in passing the order in question which was rightly impugned before the High Court and erroneously dismissed by the High Court. The High Court has also equally committed a manifest error in not considering the scope of Section 33C(2) of the I.D. Act. We, therefore, have no hesitation in setting aside the order passed by the Labour Court in Misc. Cases No. 11 of 1993 dated 23.8.1995 and the order dated 9.1.2002 passed by the High Court in C.M.W.P. No. 36406 of 1995 as illegal and incalled for. We do so accordingly."

In Jeet Lal Sharma's Case (Supra) our High Court quoted and followed the Ganesh Razak's Case (Supra) and has also held as follows:-

"It is clear form the above legal position that without prior adjudication or settlement on the point of entitlement (.e., entitlement in general, period of entitlement and rate of entitlement) application U/S 33- C (2) of the Industrial Disputes Act, 1947 is not maintainable. In the present LCA, there is no claim of applicant/petitioner that there is any prior adjudication or settlement as regards entitlement of leave encashment for 188 days as claimed. I am of the considered view that present LCA is not maintainable under Section 33 C (2) of Industrial Disputes Act 1947. Hence the same is dismissed. File be consigned to record room."

In Municipal Corporation of Delhi VS Raghunath Rath & Others [2003 (99) FLR 114] Delhi, wherein Single Bench of our Court relied upon Ganesh Razak's Case (Supra) and has been follows:-

"...............Ld. Counsel has relied upon the judgment of the Supreme Court in Municipal Corporation of Delhi VS Ganesh Razak and Another, wherein it was held that the claim of the respondents-workmen, who were daily daily wage worker, to be paid wages at the same rate as the regular employees had not been earlier settled by adjudication or recognition by the employer without which the stage for computation of that benefit could not reach. It was held that the workmen's claim of doing the same kind of work and their entitlement to be paid wages at the same rate as regular workmen on the principle of "

equal pay for equal work" being disputed, without an adjudication of their dispute resulting into acceptance of their claim to that effect, there could be no occasion for computation of benefit LCA No. 2385/19 Page 10 of 16 on that basis to attract section 33-C (2) of the Act. The respondent's claim being not based on prior adjudication could not be computed by the Labour Court."

In Jagannath Bhagwandas Shrivastav and Others VS. Harish Thadani and another 1993 L48. LC. 2508, Bombay Single Bench of Bombay High Court has held as follows:

"It is clear from the scheme of the S. 33 C and language of sub sec (2) thereof that the only limited question that a Labour Court can decide under this sub-section is that amount at which any benefit should be computed", provided however, that the workman "is entitled to receive from the employer any, money or benefit". This section postulates the existence of any relationship of an employer and workman and entitlement of a workman to certain benefits. The only dispute that can be decided by the Labour court under this section is in a very narrow compass, that is, relating to the computation of the amount of money that may be due. Where the very foundation is absent, the remedy provided to a workman under the sub- section cannot be availed of. The power of the court in a proceeding U/S 33 C (2) of the Act, as observed by Supreme Court in CIWT Corporation Vs. Workmen 1974 LIC 1018:

(AIR 1974 S C 1604), is in the nature of an execution proceeding, and, therefore, when a claim is made before a Labour Court under 5.33 C (2), that Court must clearly understand the limitations under which it is to function. It cannot arrogate to itself to make adjudication in the nature of determination which some other authority or Court is competent to do. Thus, where there is a controversy in regard to very fact whether the person concerned was in employment or not, the question of computing the reliefs will not arise."

In Basant Lal vs. Management of M/S A.F. Ferguson LCA No. 2385/19 Page 11 of 16 & Co. & Anr. 2002 LLR 612 (Delhi), our Honourable High Court observed as follows:

"The issues, such as, whether the petitioner received a raw deal as a Chartered Accountant or whether he ceased to be workman or not, are not the questions, which can be decided in an application under Section 33 C (2) of the Act. There has been no determination or the adjudication of the pre-existing right of the petitioner of the benefits of which computation can be sought......"

In the light of above authorities, it is clear that court has to see whether the amounts sought to be recovered are covered under 33 (C) (2) of the Act or not and whether pre- existing right is there or not. The plea has been taken by the management in para -6 that workman is not involved in any unfair trade practice and did not cross the number of worker more than 100 during the total work tenure and the management always did their work with approx. 52 workers and some time with daily wages/job work as per the work load. It was further submitted that the workmen are casual labour and are not entitled to any relief. But this plea is not entertained by the court because the plea has been taken by the management that workman has already taken his full and final settlement amount from the management. During the cross-examination, only this suggestion of full and final payment given to the workman so no contrary pleas can be taken. The workman has brought on record the ESIC card/receipt/payment of the wages by cheque in all 11 cases. There were 28 cases out of which 17 cases have been dismissed as relationship was not proved, but these 11 cases are on different footing which includes the present case of workman. It was upon LCA No. 2385/19 Page 12 of 16 the management to prove that the ESIC card is forged and has not been issued or that workman was not working with them. Even it has come on the record that either the cheques have been given by the present management or the ESIC card is in the name of Manoj Cable Company Pvt. Ltd., which admittedly proved by the statement given by witness Sh. Akshay Bhardwaj of management that the name of the Management has been changed to Manoj Cable Ltd. It is also made out that even though the workman was working with Manoj Cable Company Pvt. Ltd., and the argument of management that they joined the services of M/s Manoj Cable Ltd., is discarded. Even otherwise the argument that full and final settlement has been given to the workman also does not hold water because no such document has been produced by the management in their evidence. Even in the cross-examination management witness MW-1 Akshay Bhardwaj has admitted that he has not filed on record any document till date to show that full and final payment has been made to the workman. So, management has failed on both these counts.

8. So far as the claim of the workman is concerned, before deciding the same it is important to note here that workman has filed the LIR in this court itself challenging the termination and claiming reinstatement with fullback wages, but that case has already been dismissed by this court. So, the question of compensation does not arise.

9. Accordingly, the claim no. 2 claiming compensation u/s 25F of ID Act and claim no. 6 service compensation for every year computed for 15 days pay is discarded because, it cannot be held that services of the workman were terminated illegally and that has attained finality because there is no order of any superior LCA No. 2385/19 Page 13 of 16 Court whereby this finding has been stayed. Rather the order has not been challenged and resjudicata applies.

10. Now, as per the observations made by the superior courts and law discussed above, it is crystal clear that this court can only grant the payment which is admitted by the management and if adjudication is required for same amount that can not be given u/s 33 (2) of the Act. So far as the claim no. 3 is concerned the maximum compensation is available with the workman under payments of Bonus Act and the same is also disputed as tenure of service is not proved and amount of wages is not proved and % of compensation is also not determined. So the claim is not maintainable on this count as well as on the count that other equal and efficacious remedy is available to the workman. To the same effect is claim no. 4, the workman has not brought on the record as to how many leave were taken and what amount is due and being disputed amount the same cannot be given and hence, it is also discarded.

11. Claim no. 5 is also discarded because, it has not been borne out from the record as to how much hours the workman has worked for overtime and this is also disputed amount. Now, coming to claim no. 1, it has come in the evidence before labour officer that almost each of the workmen claimed 3 months salary i.e. June, July and August 2019, but herein before this court, the salary has been taken up for July and August 2019, though, there is dispute regarding the month. This court is proceeding as per the statement of claim and not as per the claim made before the labour officer. Management has not proved that workman had been paid for this period against his work. So this claim is tenable, but the question is as to for how much amount.

There is nothing on the record to suggest that salary stated by the workman was being paid by the management and this is only one sided story, which cannot be accepted. There is no proof of the same, rather suggestion was given by the management to the workman that this was not the salary paid by the management. Thus, onus was upon the workman to prove same.

12. Reliance is placed upon judgment passed by Hon'ble Allahabad High Court, 2013 LLR 927 titled as U. P. State Warehousing Corporation and Another Vs Presiding Officer and Another wherein Hon'ble High Court in para No. 17 observed that "It is settled law that the person who files a claim is required to prove his case. The Industrial Dispute was raised at the instance of the union and even though, the provisions of the Evidence Act is not applicable in industrial proceedings, nonetheless, the burden of proof is upon the union and its worker to prove their claim before the Labour Court".

13. Mere statement of claim will not give rise to the right to the workman and this is when it has not been proved that what was the salary of the workman. The actual amount paid by management to him can be recovered. The same can be seen from ESIC account or PF account or register or bank statement. Accordingly, in these circumstances, the claim is partly accepted to the extent that workman is only entitled for the amount actually paid by the management to the workman as salary for the two months as claimed, which the Management is liable to pay to the workman. The workman is entitled to 9% interest from the date of accrual till realisation. Issue no. 1, Issue no. 2 and Issue no. 3 are decided accordingly.

The workman can show the same in the execution LCA No. 2385/19 Page 15 of 16 petition, if any, while initiating the recovery proceedings. In the light of above observation, the claim stands disposed off in the above terms and is partly allowed.

File be consigned to record room.

Announced in the open court on 16.03.2023 (AJAY GOEL) Presiding Officer: Industrial Tribunal-01 RADC, New Delhi 16.03.2023 Previously working as Presiding Officer:Labour Court-06, RADC, New Delhi.