Delhi District Court
Worker Filed An Application U/S 33 C (2) ... vs Ganesh Razak And Another on 14 January, 2008
IN THE COURT OF MS. REKHA RANI : POLC - XIII :
KARKARDOOMA COURTS: SHAHDARA : DELHI
LCA.4/06
Date of Institution : 6.10.2003
Award reserved on : 2.1.2008
Date of Order : 14.1.2008
BETWEEN
SH. JASWANT SINGH RANA S/O SH. CHETRAM RANA C/O D-
416, KARKARDOOMA COURT, DELHI.
AND
THE MANAGEMENT OF : M/S KUNCHALS STORE P. LTD.
THROUGH ITS DIRECTOR, M-14, GREATER KAILASH-I
MARKET, NEW DELHI-48.
ORDER
1. Worker filed an application U/s 33 C (2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) on the following averments :
He worked with the management as salesman w.e.f.
November 1997 at wages of Rs.4500/- per month. Management did not give him appointment letter and increment. He complained to the labour office against the management which annoyed the 1 management and he was suspended w.ef.. 5.9.02. Management paid him subsistence allowance @ 50% of his wages whereas he was entitled to 100% wages. Management also did not pay him bonus for the period 2000-03. He worked 10 hours in a day and management did not pay him double his wages w.e.f. 1.9.98 to 12.2.02 as overtime allowance.
2. So he has claimed 100% wages as subsistence allowance for the period 4.9.02 to 31.5.03, bonus from 2002-03 and overtime allowance from 1.9.98 to 12.2.02 @ of double his wages.
3. Management contested his claim vide its written statement. It is alleged that he misbehaved with the management and a large crowd collected in front of its shop. Consequently an enquiry was conducted. Management did not find reply of the applicant satisfactory so ultimately he was dismissed from service. It is alleged that Bonus Act is not applicable to it. So no bonus is payable to the applicant as prayed. It is further stated that despite having received suspension allowance applicant did not report for 2 duty and mark his attendance. It is stated that management sent him several letters but he did not mark his attendance in the register. Regarding overtime allowance it is stated that applicant was never asked to work overtime from 1.9.99 to 12.2.02.
4. My Ld. Predecessor framed following issues on 22.9.04 :
1. To what amount workman is entitled to?
2. Relief.
5. Applicant examined himself as WW-1 and thereafter closed his evidence. Management examined Hemant Gupta its director as MW-1 and thereafter closed its evidence. I have perused the material available on record and also heard Ld. AR for the parties.
ISSUE NO. 1
6. Management has placed certified copy of the award of Mr. Chandra Bose, Presiding Officer-Labour Court XVI in a dispute raised by the applicant against his dismissal bearing no.01/06. Ld. 3 Labour Court adjudicated upon validity of the domestic enquiry held by the management against the applicant. Vide this order dated 5.11.07 court held that a fair and proper domestic enquiry was held against the applicant and he was given full opportunity to defend himself. As such dismissal was held to be justified.
7. Applicant has not shown as to how he was entitled to 100% subsistence allowance. He admitted in his cross- examination that he received letters to mark his presence. Management has pleaded that despite having received suspension allowance he did not report for duty and mark his presence.
8. Applicant has further claimed bonus from 2000-03.
Management has denied that the same is payable to him on the ground that Bonus Act is not applicant to it.
9. Proceedings U/s 33 C (2) are in the nature of execution proceedings. Claim of the applicant having not been adjudicated earlier nor admitted by the management is not maintainable in view 4 of MCD Vs. Ganesh Razak and another, 1995, -1-LLJ-395 wherein it was held as under :
''Where the very basis of the claim of the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication 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 a proceedings under section 33(c)(2) of the Act.
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 or enforcement there of some ambiguity requires interpretation 5 that the interpretation is treated as incidental to the Labour Court's power under section 33(c)(2) like that of the execution court's power to interpret the decree for the purpose of its execution.''
10. Applicant has further claimed overtime allowance. Management has stated that he was never asked to work overtime.
11. In Special Officer, Vellore Co-operative Sugar Mills, Ammundy Post. Vellore v. Presiding Officer, Labour Court, Vellore & Ors. 2005 LLR 653 Hon'ble 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 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 6 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."
12. In case of Union of India and Anr. vs. Kankuben (Dead) by LRs. and Ors. etc. 2006 LLR 494 the Hon'ble Apex 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.
13. In case of Arora Industries v. Abdulhampeed Abruirasheed, 2006 LLR 397 Hon'ble Gujarat High Court held that a claim for overtime for six years by a workman under Section 33 C (2) of the Industrial Disputes Act will not be tenable since it is 7 not based on the existing right of the workman and as such the Labour Court has committed gross error in allowing the claim which is liable to be set aside in writ petition.
14. In case of Gujarat Water Supply and Sewerage Board & Anr. vs. Ketanbhai Dinkaray Pandya, Amroll, 2003 LLR 1118, fourty three workers claimed overtime wages in application under section 33(C)(2) of the Act. Labour Court passed an order allowing overtime wages. Ld Single Judge dismissed the writ petition of the management. In LPA Hon'ble Division Bench accepted the appeal and made the following observation :
"Unfortunately, the Labour Court has completely miread this evidence and came to the perverse finding that it is proved from the evidence of workman Ketan Pandya and Dy. Executive Engineer, Shah Chauhan that the workmen were working for 12 hours per day instead of 8 hours per day and paid salary for 8 hours, therefore, they were entitled for overtime of 4 hours 8 per day. Unfortunately, neither the Labour Court nor the learned single judge of the Court, considered this aspect i.e., any complaint in writing as well as the evidence and the Labour Court has wrongly jumped to the conclusion that all the workmen were working 12 hours per day but paid the salary for only 8 hours per day, therefore, they were entitled for overtime of 4 hours per day. The disputed questions need to be adjudicated upon by a competent authority or Court. Under section 33C the Labour Court acts only as an executive Court and could not have undertaken the exercise of deciding, awarding and executing the claim of the workman in one go. Learned single Judge, therefore, erred in upholding the award of Labour Court while dismissing the petition of employer. The employer-Board has raised bonafide dispute before the 9 Labour Court regarding the claim of overtime wages of the workmen, which should have been first adjudicated either by the competent authority under the Minimum Wages Act or by the Labour Court in reference proceedings under Section 10 of the I.D. Act. In absence of it, all the recovery applications correctly filed before the Labour Court by the respondent - workmen under Section 33C(2) of the I.D. Act were not maintainable. Factually also, the Labour Court has erred in appreciating the evidence on question whether the workman did not work overtime, if so, to what extent? The conclusions are arrived at in absence of evidence in that regard. Awards granting overtime wages to 43 workers in applications under section 33(C)(2) of the I.D. Act, in the absence of adjudication by competent authority though there was a bonafide dispute 10 over overtime wages are under challenge in these Letter Patent Appeals. Paras 15, 16, 25, 29, 40 and
41."
15. In view of aforesaid, it is clear that claim is not maintainable U/s 33 C (2) of the Act. File be consigned to record room.
DATE : 14.1.2008 PRESIDING OFFICER
LABOUR COURT NO. XIII
KARKARDOOMA COURTS
DELHI.
11