The vs State Of Uttar Pradesh And Others on 26 July, 2008

[Cites 18, Cited by 0]

Delhi District Court

The vs State Of Uttar Pradesh And Others on 26 July, 2008

                                       1


IN THE COURT OF SH. HARISH DUDANI: PRESIDING OFFICER, LABOUR
         COURT NO. XVII, KARKARDOOMA COURTS, DELHI

                              LCA No. 211/2006

BETWEEN

The Claimant
Sh. Raghuveer Singh,
R/o Didwadi Village,
P.O. Police Station Samalamba,
Distt. Panipat, Haryana

Also at:
C-12/5, Gali NO.9, Chander Shekhar Marg,
Shalimar Gaon,
Delhi

AND

The management of
Smt. Sushila Rana,
W/o Sh. Bhupender Singh Rana,
R/o Village Kadipur,
P.S. Samaypur Badli,
Delhi.

                                  ORDER

1. This is an application under Section 33C(2) of the I.D. Act filed by the claimant on 25.04.2003. Briefly stated facts relevant for disposal of the application are as under:

2. The workman/claimant has filed the above noted application under Section 33C(2) of the I.D. Act stating therein that the management is registered owner of bus bearing no. DL-1P-2625 and the workman was working as Driver under the employment, control and supervision of the management since long back and he was getting monthly salary of Rs. 5,000/-. The management was not providing statutory facilities i.e overtime, Contd.....

bonus, leave, ESI facility, PF facility etc. and the workman was demanding the same from the management. The workman was working sincerely and diligently to the satisfaction of the management and never gave any chance of complaint to the management. Unfortunately, on 09.11.96 the aforesaid bus met with an accident while the workman was plying the same under the employment of the management and since November 96, the management stopped paying the salary of the workman and the management illegally terminated the services of the workman w.e.f. 01.01.97. The workman was forced to contest the police case and MACT case before the concerned courts at his own costs and expenses. The management is liable to make payment of a sum of Rs. 3,90,000/- on account of salary from 01.11.96 to April,2003 @ Rs. 5,000/- per month , a sum of Rs. 3,90,000/- as overtime wages for 78 months @ Rs. 5,000/- per month , a sum of Rs. 21,000/- as bonus, Rs. 35,000/- as leave encashment amount and Rs. 14,600/- as ESI facility @ Rs. 200/- per month i.e management is liable to pay in total a sum of Rs. 8,50,600/- to the claimant but the management failed to pay the same despite legal notice dt. 26.03.2003.

3. Management has filed reply to the application U/s. 33-C(2) of the I.D. Act and has contested the same. In the reply management has taken the objection that the application is not maintainable under the provision of Section 33C (2) of the Industrial Disputes Act, 1947. It is denied that the claimant has been employed in the employment of management since long as alleged. It is stated that the bus was purchased by respondent under Red Line Contd.....

scheme and its operation came to an end in July 98 as per notification of Delhi Government. It is denied that the monthly salary of the claimant was Rs. 5,000/- or that the management was not providing the statutory facilities and the claimant was demanding the same. It is stated that claimant was working as relieving driver and he has never worked more than seven hours and no question of payment of overtime wages arises. As per the nature of work of the claimant he is not entitled to any facilities such as bonus, ESI facility and PF etc. The claimant has been working as relieving driver w.e.f. 01.11.96 to 01.01.97. It is stated that on 09.11.96, the claimant while driving the bus in rash and negligent manner committed accident which resulted in death of a boy. It is stated that the claimant has worked with the management for a short period of two months as relieving driver w.e.f. 01.11.96 to 01.01.97 and he was paid Rs. 20/- per hour + Rs. 25 as diet money and the duty of the claimant extended between 2 to 7 hours per day depending upon the availability of the regular driver and the claimant was never given duty for more than 7 hours in a day. The period for which amount has been claimed, the claimant has not worked with the management. It is denied that claimant is entitled to amounts as claimed. It is stated that application U/s. 33C(2) of the Industrial Disputes Act , 1947 is liable to be dismissed.

4. The claimant has filed rejoinder to the written statement/reply of management. In the rejoinder the claimant has reiterated the contents of the application U/s. 33 C(2) of the Industrial Disputes Act, 1947 and has controverted the allegations of management as stated in the WS/reply.

Contd.....

5. From the pleadings of parties following issues were framed by my ld. predecessor on 27.09.2004:-

1. Whether the application U/s. 33 C(2) of the I.D. Act is not maintainable as pleaded in WS? OPM

2. To what amount, if any is the claimant entitled to recover from the management? OPW

3. Relief.

6. To prove his case the workman examined himself as WW1.

7. On 25.07.2008, the case was fixed for M.E. but the management failed to appear and the case was proceeded under Rule 22 of the Industrial Disputes (Central) Rules 1957 and ME was closed. The management has not examined any witness.

8. I have heard AR for claimant on the application under Section 33C(2) of the I.D. Act and carefully perused record.

ISSUE NO.1

9. The claimant has filed the present application under Section 33C(2) of the I.D. Act alleging that he has been working with the management as Driver at the salary of Rs.5000/- per month and bus no. DL-1P-2625 which workman was driving, met with an accident on 09.11.1996 and since November 1996 the management stopped paying salary of workman and the management illegally terminated the services of workman w.e.f. 01.01.1997. In the W.S./reply to application under Section 33C(2) of the I.D. Act the management has taken the objection that the claim petition is based upon the allegation of Contd.....

illegal termination of the services of workman which cannot be subject matter under Section 33C(2) of the I.D. Act and the workman has made claims for the period during which he has not worked with the management and the same cannot be adjudicated under Section 33C(2) of the I.D. Act and the present application of the claimant is not maintainable.

10. In Para 8 of Uttar Pradesh State Road Transport Corporation vs. State of Uttar Pradesh and others, 2002-LLR-582, Hon'ble High Court relied on the decision of Hon'ble Supreme Court in Municipal Corporation of Delhi vs. Ganesh Razak and another, 1994(68) FLR 997 where in it was held that:-

"It is clear that there has been no earlier adjudication by any forum of the claim of these workmen of their entitlement to be paid wages at the same rate at which the regular workmen of the establishment are being paid and there is no award or settlement to that effect. In short this claim of the workmen has neither been adjudicated nor recognised by the employer in any award or settlement. The real question therefore is: Whether in these circumstances, without a prior adjudication or recognition of the disputed claim of the workmen to be paid at the same rate as the regular employees, proceedings for computation of the arrears of wages claimed by them on that basis are maintainable under Section 33C(2) of the Act? In our opinion, the question for decision is no longer res integra begin long settled by earlier decisions of this Court. Some of the decisions have been referred by the High Court in the impugned judgment, but the application of the settled principle made by the High Court is erroneous.

This decision itself indicates that the power of the Labour Court under Section 33C(2) extends to interpretation of the award or Contd.....

settlement on which the workman's right rests, like the Executing Court's power to interpret the decree for the purpose of execution, where the basis of the claim is referable to the award or settlement, but it does not extend to determination of the dispute of entitlement or the basis of the claim if there be no prior adjudication or recognition of the same by the employer. This decision negatives instead of supporting the submission of learned counsel for the respondents The High Court has referred to some of these decisions but missed the true import thereof. The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of the proceeding under Section 33C(2) of the Act. 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 33C(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 of enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power under Section 33C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution.

The workman's claim of doing the same kind of work and their entitlement to be paid wages at the same rate as the regular workmen on the principle of equal pay for equal work being disputed without an adjudication of their dispute resulting in acceptance of their claim to this effect, there could be no occasion for computation of the benefit on that basis to attract Section 33C(2). The mere fact that some other workmen are alleged to have Contd.....

made a similar claim by filing writ petitions under Article 32 of the Constitution is indicative of the need for adjudication of the claim of entitlement of the benefit before computation of such a benefit could be sought. Respondents claim is not based on a prior adjudication made in the writ petition filed by some other workmen upholding a similar claim which could be relied on as a adjudication ensuring to the benefit of these respondents as well. The writ petitions by some other workmen to which some reference was casually made, particulars of which are not available in these matters, have therefore, be held that the Labour Court as well as the High Court were in error in treating as maintainable the application made under Section 33C(2) of the Act by these respondents."

11. In the application under Section 33C(2) of the I.D. Act the claimant has stated that the bus which he was driving, met with an accident on 09.11.1996 and the management stopped paying salary to the workman since November 1996 and the management terminated the services of workman w.e.f. 01.01.1996. By way of application under Section 33C(2) of the I.D. Act the claimant has claimed a sum of Rs.3,90,000/- on account of salary from 01.01.1996 to April 2003 @ Rs.5000/- per month. In the W.S. the management has taken the plea that the claimant has worked as relieving Driver on the bus between 01.11.1996 and 01.01.1997 @ Rs.20/- per hour and Rs.25/- as diet money. The management has disputed the status of employment of the claimant with the management and rate of wages. As per case of the claimant, he was not in the employment of management after 01.01.1997. The claimant Contd.....

has nowhere stated that he had raised any industrial dispute wherein status of his employment has been determined or it has been held that termination of his service was illegal.

12. In State of U. P. & Anr. vs. Brijpal Singh- 2005-LLR-1191 respondent was appointed as seasonal clerk on temporary and ad hoc basis and his services were terminated on 03.07.1987 and workman filed writ petition and by interim order High Court stayed operation of order of termination and the respondent/workman filed application for payment of salary and bonus from July 1987 to July 1993 in Labour Court and the Labour Court allowed the application and the High Court dismissed the writ against that order.

13. In para 12 in State of U. P. & Anr. vs. Brijpal Singh (Supra) Hon'ble Supreme Court referred to the decision in State Bank of India vs. Ram Chandra Dubey & Ors. (2001) I SCC 73 wherein it was held that:

........... When a quesiton arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceedings to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several fractors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. ...........

Contd.....

14. In State of U. P. & Anr. vs. Brijpal Singh (Supra) it was held that:

13. Thus it is clear from the principle ennciated in the above decisions that the appropriate forum where question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. Thereafter, the Labour Court, in the instant case, cannot arrogate to itself the functions of an Industrial Tribunal and entertain the claim made by the respondent herein which is not based on an existing right but which may appropriately be made the subject matter of an industrial dispute in a 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 undetermined 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 I. D. Act to disregard his dismissal as wrongful and on that basis to compute his wages. It is, therefore, impossible for us to accept the arguments to Mrs. Shymala Pappu that the respondent- workman can file application under Section 33C(2) for determination and payment of wages on the basis that he continues to be in service pursuant to the said order passed by the High Court in Writ Petition No. 15172 of 1987 date 28.10.1987. The argument by the learned counsel for the workman has no force and is unacceptable.

Contd.....

15. In the present case the plea of the workman is that his services have been terminated illegally w.e.f. 01.01.1997. The claimant has claimed salary for the period during which he was not in the employment of management i.e from 01.01.1997 to April 2003.

16. In Central Inland Water Transport Corporation vs. The workman, AIR 1974 SC 1604 it was held that:

...Moreover, if we assume that the Labour Court had jurisdiction to make the investigation into the circumstances of the dismissal, a very anomalous situation would arise. The Labour Court after holding that the dismissal was wrongful would have no jurisdiction to direct reinstatement under Section 33C (2). And yet if its jurisdiction to compute the benefit is conceded it will be like conceding its authority to pass orders awarding wages as many times as the workman comes before it without being reinstated..."

17. In view of decision in Central Inland Water Transport Corporation vs. The workman (Supra), this court cannot compute the benefits for the period after alleged wrongful termination of services of the workman by the management under provision of Section 33C(2) of the I.D. Act. Even claim of the workman for wages from 01.11.1996 to 31.12.1996 is also disputed by the management. In the circumstances, the claim of the claimant for a sum of Rs.3,90,000/- on account of salary from 01.11.1996 to April 2003 is not maintainable under Section 33C(2) of the I.D. Act.

Contd.....

18. The claimant has also claimed a sum of Rs.3,90,000/- (Rupees Three Lacs Ninety Thousand Only) on account of overtime wages. In Union of India and another v. Kunkuben (Dead) by LRs. And Ors. etc. etc. 2006 LLR 494 Hon'ble Supreme Court held that a claim for overtime by a workman, under section 33C(2) of the Industrial Disputes Act will not be tenable in view of the settled law that such a claim is to be adjudicated on the basis of the existing right of the workman, hence the Labour Court misdirected itself in allowing the claim of the workman which was erroneously upheld by the learned Single Judge and the Division Bench hence the same is liable to be set aside.

19. The claimant has not proved as to who had authorized him to work beyond working hours and on which dates he had rendered overtime work. In Special Officer, Vellore Co-operative Sugar Mills, Ammundy Post, Vellore vs. Presiding Officer, Labour Court, Vellore and Ors., 2005 LLR 653 it was held that a claim for overtime, made by the employees, will not be tenable when they have failed to prove as to who has authorised them to work beyond working hours and the reliance upon the time-card and its punching will not be sustainable since it only reflects the entry and exit and not working of overtime. Hence, the claim not being based on existing right could not be allowed by the Labour Court and the Learned Single Judge erred in upholding the said order. It was further held that the burden of proof of having worked for overtime lied upon the workmen and they have failed to prove as to who has authorized them to work overtime and as such their claim, in the absence of proof, will not be tenable more so when the employer has categorically stated that the Contd.....

claimants were never asked to work overtime. Hence the claimant is not entitled the amount as claimed on account of overtime wages.

20. By way of present application under section 33C(2) of the Industrial Disputes Act the claimant has also claimed a sum of Rs.21,000/- on account of bonus. The claimant has nowhere stated in the application under section 33C (2) of the Industrial Disputes Act that the management had employed the minimum number of employees as stipulated in The Payment of Bonus Act, 1965 and that the management was liable to make payment of bonus. The claimant has also nowhere stated in the application under section 33C(2) of the Industrial Disputes Act that for the previous years the management had made payment of bonus to the claimant and the management was covered by The Payment of Bonus Act, 1965. In the circumstances, the claimant shall not be entitled for amount of Rs.21,000/- as claimed on account of bonus.

21. By way of application under section 33C(2) of the Industrial Disputes Act the claimant has claimed Rs.35,000/- on account of leave encashment and Rs.14,000/- on account of ESI facility. The claimant has nowhere stated as to for how much period and at what rate he has claimed the leave encashment. However, the management has disputed the employment of claimant under the management.

22. Hence, for deciding the controversy between the parties this court has to firstly decide whether the claimant was appointed by the management and if the claimant was appointed then on which date he was appointed by the management and whether the services of the claimant were terminated Contd.....

illegally by the management on 01.01.1997 and thereafter the court can decide about the entitlement for the benefits as prayed by way of present application U/s 33 C(2) of I.D. Act.

23. In Tara and Ors. v. Director Social Welfare and Ors. 1998 II LLJ 632 Hon'ble Supreme Court held :

"This is obvious from the fact that the status and nature of employment of the appellants is itself disputed and unless there is a prior adjudication on merits of the status which is the foundation for making the claim for wages at the specified rates, the question of moving an application under Section 33 C(2) for computation of the wages does not arise.

We find that the Labour Court has recorded some findings which may be relevant for the disputed status of the appellants as Anganwadi workers/helpers even though it has rightly reached the conclusion that the applications do not lie under Section 33 C(2) of the Act. It is clear that the question of maintainability of the applications under Section 33 C(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 33 C (2). In view of the conclusion rightly reached Contd.....

by the Labour Court that the applications were not maintainable under Section 33 C(2), its other findings relating to the status and nature of employment of the Anganwadi workers/helpers were wholly uncalled for. All such findings are, therefore, not to be construed as deciding any point relating to the status of the appellants.

24. In Commissioner, Coimbatore Municipal Corporation v. Presiding Officer, Labour Court & Ors., 1994 I-L.L.J. 535, it was held that proceedings U/s 33C(2) of the I.D. Act are in the nature of execution proceedings and in the absence of adjudication of rights, money benefit cannot be computed and non- existing right cannot be adjudged in Section 33C(2) proceedings.

25. The claimant has not proved that there has been any earlier adjudication by any forum of these claims of the workman. In Uttar Pradesh State Road Transport Corporation vs. State of Uttar Pradesh and others (Supra) it was held that:

........it was only after the entitlement has been adjudicated upon or recognised by the petitioner Corporation then thereafter for the purpose of implementation or enforcement thereof, if some ambiguity remains to be interpreted then it was to be treated as incidental to be dealt by Labour Court under Section 33C(2) in same way as the Executing Court exercises its power to interpret the decree for the purpose of its execution.

Contd.....

26. In Jagannath Bhagwandas Shrivastav and others v Harish Thandani and Another, 1994 LAB.I.C. 2508, it was held that:

5......................................................................

........................................................................ ........................................................................ It is clear from the scheme of the S.33C and language of sub-sec.(2) thereof that the only limited question that a Labour Court can decide under this sub-section is "the amount at which any benefit should be computed", provided, however, that the workman "is entitled to receive from the employer any money or any benefit". This section postulateshe existence of relationship of an employer and workman and the 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. 33C(2) of the Act, as observed by Supreme Court in CIWT Corporation v Workmen 1974 LIC 1018: (AIR 1974 SC 1604), is in the nature of an execution proceeding, and, therefore, when a claim is made before a Labour Court under S. 33C(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."

27. As per aforesaid decisions in Municipal Corporation of Delhi vs. Ganesh Razak and another (Supra) and Uttar Pradesh State Road Contd.....

Transport Corporation vs. State of Uttar Pradesh and others (Supra) this court has jurisdiction only to implement the adjudicated or recognised right of the claimant. As the entitlement of the claimant has not been earlier adjudicated or recognised by the employer, hence the claim of the claimant is not maintainable under Section 33C(2) of the ID Act. This issue stands answered accordingly.

ISSUE NO. 2

28. In findings on issue no. 1 above it has been held that the claim of the claimant is not maintainable U/s 33 C(2) of the I.D. Act. In Tara and Ors. v. Director Social Welfare and Ors. (Supra) it has been held by Hon'ble Supreme Court that the question of maintainability of the application U/s 33 C (2) of the I.D. Act 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 U/s 33 C(2) of the I.D. Act. Hence, in view of decision of Hon'ble Supreme Court in Tara and Ors. v. Director Social Welfare and Ors. (Supra) the claim of the claimant cannot be examined on merits as the application of the claimant is not maintainable U/s 33 C(2) of the I.D. Act. This issue stands answered accordingly.

Contd.....

ISSUE NO. 3

29. In findings on issue no. 1 above it has been held that the claim of the claimant is not maintainable U/s 33 C(2) of the I.D. Act. Hence, the claimant is not entitled to reliefs as prayed. The application U/s 33C(2) of the I.D. Act stands disposed of according. File be consigned to record room. ANNOUNCED IN THE OPEN COURT.

TODAY i.e. ON 26.07.2008.

(HARISH DUDANI) PRESIDING OFFICER LABOUR COURT NO. XVII KARKARDOOMA COURTS, DELHI 18 LCA NO. 211/2006 26.07.2008 Pr. Sh. Pradeep Kumar Jha, ARW with workman/claimant in person.

None for management.

Application under Section 33C(2) of Industrial Disputes Act stands disposed of vide separate order of today. File be consigned to Record Room.

POLC/26.07.2008 19

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Delhi District Court

The vs State Of Uttar Pradesh And Others on 26 July, 2008