Delhi District Court
Application Was Filed By The vs Director on 17 November, 2007
1
IN THE COURT OF MS. REKHA RANI : POLC - XIII:
KARKARDOOMA COURTS: SHAHDARA : DELHI
LCA NO. 488/2006 Date of Institution : 02.12.2006
Order Reserved on: 02.11.2007
Date of Order : 17.11.2007
BETWEEN
WORKMAN
SH. SAWALI MANJHI S/O JAKKAN MANJHI
C/O DELHI ENGINEERING WORKERS UNION,
WZ275/1, GALI NO.10, LAJWANTI GARDEN,
NEW DELHI - 110046.
AND
MANAGEMENT OF
(i) M/s JAIN PLASTIC
(ii) M/s SHAKKARWAL PLASTIC
BOTH AT
A105, PHII, MAYAPURI,
NEW DELHI110064
ORDER
1. Application was filed by the claimant under section 33C(2) of the Industrial Disputes Act, 1947 (hereinafter called as Act) pleading therein the following facts :
He worked with the management for five years as 'Karigar' and his last drawn wages were Rs.3000/ per month. He worked honestly and diligently and never gave any cause of complaint to the management. Management made him work for twelve hours a day but did not pay him overtime allowance. Management denied him statutory benefits. When he demanded the same management terminated his services on 01.04.2006. He sent a demand notice to LCA NO.488/2006 2 the management on 20.04.2006 vide registered post. Management did not reply to the notice.
He has prayed for an amount of Rs.28,503/ out of which Rs.3695/ on account of earned wages for March 2006, Rs.5543/ on account of leave encashment for 45 days, Rs.11085/ on account of bonus for the year 200304, 200405 and 200506, Rs.3695/ on account of overtime allowance and Rs.695/ on account of arrear of minimum wages for February 2006.
2. Management no.1 namely M/s Jain Plastic contested his claim vide its written statement pleading therein that there was no relationship of employer and employee between the claimant and the management. It is stated that the claimant was never employed by it, therefore, the claim is not maintainable.
3. Management no.2 namely M/s Shakkarwal Plastic contested the claim vide its separate written statement stating therein that he was appointed as a daily wager and he worked only for 83 days and therefore his claim is not maintainable. It is denied that the applicant was not given statutory benefits and that when he demanded the same management got annoyed and harassed him and then terminated his services. It is stated that management closed its factory w.e.f. 31.03.2006 so there was no question of termination of his services on 01.04.2006. It is stated that he lastly worked on 06.01.2006 and has been paid LCA NO.488/2006 3 his wages till date. It is stated that Payment of Bonus Act is not applicable to it as it had less than 10 persons in its employment. It is stated that he never worked for overtime so there is no question of overtime allowance. It is denied that he is entitled to any relief.
4. Following preliminary issue needed adjudication before proceeding further :
1. Whether the claim is maintainable u/s 33(C)(2) of the Industrial Disputes Act, 1947.
PRELIMINARY ISSUE
5. In Tara & Ors. Vs. Director, Social Welfare & Ors., 1998 LLR 882, the Apex Court has held as under :
"It is clear that the question of maintainability of the applications under section 33C(2) was required to be determined at the threshold and the question of examining the appellants' claim on merits relating to their status could have been gone into only thereafter if the applications were held to be maintainable under Section 33C(2)."
QUA MANAGEMENT NO.1 (M/s JAIN PLASTIC)
6. Claim is not maintainable under section 33(C)(2) of the Act against LCA NO.488/2006 4 management no.1 since it has totally denied the existence of any relationship of employer and employee between the parties. This court as executing court under section 33(C)(2) of the Act cannot determine whether there existed any such relationship between the parties.
7. In the case of Life Insurance Corporation of India, Agra Vs Presiding Officer, Central Government Industrial Labour Court, Kanpur 2004 (101) FLR 338, the Corporation denied the relationship of master and servant on payment of wages. The Hon'ble court observed as follows :
"There is no document to prove his employment conclusively...The corporation denies relationship of master and servant on payment of wages... This controversy cannot be decided without evidence and is outside the scope of section 33C of the Industrial Disputes Act. The controversy falls in the ambit of section 10 of the Industrial Disputes Act. The Labour Court could not have computed the wages under section 33C of the Industrial Disputes Act unless the question of his employment was adjudicated by competent Court in a reference..."
LCA NO.488/2006 5
8. In the case of Central Group and Others And Motiram S. Thakare 2005 II LLJ 492, Labour Court's jurisdiction under section 33C(2) of the Act read with Rule 62 of the Industrial Dispute (Central) Rules, 1957 to decide the status of the claimant as workman arose for consideration. The Hon'ble High Court observed that Labour Court could not adjudicate upon the status of the claimant as a workman under section 33C(2) of the Act.
QUA MANAGEMENT NO.2 (M/s SHAKKARWAL PLASTIC)
9. Management no.2 has disputed the status of the claimant. It is stated that he was only a daily wager who worked with the management for 83 days only. Applicant has claimed to have worked with the management for five long years. The relief claimed by him is for a very long period from 2003 to 2006. Neither his status as a workman is admitted nor the period of employment is admitted. The same being disputed cannot be adjudicated in these proceedings as is evident from the following judgments.
10. In the case of South Central Railway, Secunderabad vs. Labour Court, Hyderabad, And Another 1983 FJR Vol63 P. 171 it was held that the jurisdiction of Labour Court is different from that of a Civil Court and it must be shown to have jurisdiction which depends on the status of LCA NO.488/2006 6 the claimant as workman. It was further held that proceedings U/s33 C (2) of the Act are in the nature of execution proceeding. Therefore, Labour Court cannot go into the question whether the claimant is a workman in these proceedings.
11. In the case of Management, Elko Computers (P) Ltd., Chennai v. C.K. Jayachandran and another 2006 LLR 979 claimant who was Assistant Manager (Marketing) of the company filed a claim petition under section 33C (2) of the Act claiming wages for two months. The employer disputed his status as a workman. It was held that Labour Court does not have jurisdiction to adjudicate upon the disputed status of the claimant. It was held that it enjoys very limited jurisdiction under section 33C(2) of the Act and it cannot arrogate to itself the functions of the Tribunal under Reference under section 10 of the Act.
12. Period of employment is also in dispute. Applicant claimed to have worked for five years and management says that he worked only for 83 days. In Om Prakash Mathur v. Panjon Ltd. & ors 86(2000) DLT 593 duration of employment of workman was in dispute. Hon'ble Court observed that where there is a dispute as to whether the workman had worked during a particular LCA NO.488/2006 7 period or not the same cannot be adjudicated u/s 33 C (2) of the act.
"Since there is a dispute about the entitlement of the petitioner to draw the salary for this period including the aspect as to whether he worked during this period or not, this aspect needs adjudication for which claim of the petitioner under Section 33 © (2) of the Industrial Dispute Act would not be maintainable. Moreover, petitioner has himself raised industrial dispute and sougnt reference under Section 10 of the Act and this aspect can be properly gone into in the aforesaid reference."
OVERTIME ALLOWANCE
13. Applicant has claimed an amount of Rs.3695/ towards overtime allowance at double rate for working overtime. Management disputed the same. Applicant has not given particulars on the basis of which he has claimed overtime. In case of Special Officer, Vellore Cooperative Sugar Mills, Ammundy Post. Vellore v. Presiding Officer, Labour Court, Vellore & Ors. 2005 LLR 653 Hon'ble Justice S. Markandey Katju, on the claim of the claimant for overtime allowance held as under :
"In our opinion, it was incumbent upon the claimant for overtime allowance to mention LCA NO.488/2006 8 which officer or supervisor asked him to work overtime, and when and where, but the details have not been given in the present case. In our opinion, merely mentioning that the claimant worked overtime for a certain number of hours without clearly stating who ordered him to do overtime and without giving other details cannot sustain a claim for overtime allowance."
BONUS
14. Every employer employing 20 or more employees is liable to pay bonus to its employees in respect of each accounting year. Management has pleaded that Bonus Act is not applicable to it as it had less than 10 employees. As an executing court, this court cannot go into the question as to whether the management had more than 20 persons in its employment to be liable to pay bonus to its employees.
LEAVE ENCASHMENT
15. Applicant has claimed leave encashment for 45 days. Management has stated that he worked only for 83 days. As discussed above this court cannot adjudicate upon the period of his employment in these proceedings. LCA NO.488/2006 9
16. The period of employment as well as status of the claimant as a workman being disputed his claim is not maintainable against the management no.2 as well.
17. The application is accordingly held to be not maintainable under section 33C(2) of the Act. File be consigned to record room.
Announced in the open PRESIDING OFFICER
court today. LABOUR COURT NO. XIII
Date : 17.11.2007 KARKARDOOMA COURTS
DELHI
LCA NO.488/2006