Delhi District Court
Smt. Pushpa W/O Sh. Mukesh Kumar vs The Management Of M/S Adigear ... on 19 September, 2015
IN THE COURT OF SHRI NARINDER KUMAR
ADDITIONAL DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER : LABOUR COURT-XIX
KARKARDOOMA COURTS : DELHI
LCA No. 42/2014
Unique Case ID No.02402C0 058742014
Smt. Pushpa W/o Sh. Mukesh Kumar,
D-240, J.J. Colony, Budh Nagar, Delhi.
C/o Readymade Garments Export Employees Union,
1-441, Karampura, New Delhi-110015.
.........Claimant
Versus
The Management of M/s Adigear International
A-40, Mayapuri Industrial Area
Phase-I, New Delhi - 110064. .........Management
Date of institution of the case : 11.02.2014
Date of passing the award : 19.09.2015
AWARD
This is a claim application filed on 11.02.2014, u/s 33C(2) of the
Industrial Disputes Act, (hereinafter referred to as the Act) whereby claimant
has claimed earned-wages for the month of December 2013 and January
2014, @ Rs.7254/- p.m., with 24% p.a. in her favour and against the
management with Rs. 5000/- litigation expenses and also to impose 10 times
penalty upon the management.
Case of claimant :
2. In brief, case of the claimant, as set out in the application is that she has
been serving with the Management as 'Thread Cutter' w.e.f. 25.04.2009 and
LCA No. 42/2014 Page 1 of 5
her last drawn wages were @ Rs.7,254/- p.m.
Further, it is the case of the claimant that she was requesting
management for maintenance of proper service record and to provide her legal
facilities, but in vain. Since she has been raising demands for legal facilities,
the management got annoyed and ultimately, terminated her services on
16.01.2014, without any notice or charge sheet or enquiry. Thereafter,
management did not make payment of her dues and she filed complaint before
the Labour Department, Hari Nagar. The Labour Inspector visited the
management, but the claimant was not reinstated. As a result, Wages only for
the month of November 2013 were paid by the management. Since earned
wages for December 2013 and January 2014 have not been paid, she has
filed this claim application.
Version of the management.
3. In its written statement, the management has raised preliminary
objections to the maintainability of the claim application. As pleaded by the
management, last drawn salary of the workman was 8,086/- per month.
Case of the management is that claimant herself left the job on
17.01.2014 as she remained unauthorizedly absent from duty and never
turned up for duty.
On merits, management has denied all the averments put forth by the
claimant and accordingly, prayed for the dismissal of the claim application.
LCA No. 42/2014 Page 2 of 5
Points for determination :
4. From the pleadings of the parties, on 20.10.2014, following issues were
framed:-
1.Whether the workman is entitled to the monetary relief as prayed for?
2. Relief.
5. When case was pending for evidence of the workman, despite ample opportunities, workman did not lead any evidence. Vide order of even date, evidence of the workman has been closed after affording ample opportunities to the claimant to lead her evidence.
Workman having not led any evidence in support of her case, Ld. AR(M) has opted not to lead any evidence on behalf of management. Discussion Issue No. 1 (Whether the workman is entitled to the monetary relief as prayed for?)
6. Onus to prove this issue was on the claimant. However, as noticed above, the workman has not stepped into the witness box to prove her case, despite opportunities. Therefore, this court has no option, but to hold that the workman has failed to prove this issue.
7. Furthermore, it may be mentioned here that present claim of the claimant cannot be said to be maintainable u/s 33C(2) of the Act for want of proof or admission of any pre-existing right of the claimant. LCA No. 42/2014 Page 3 of 5
8. Section 33C(2) of the Act 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 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 it do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit."
In case M/s Punjab Beverages Pvt. Ltd., Chandigarh vs Suresh Chand and Another (1978) 2 Supreme Court Cases 144, it was observed as under:
"But the right to the money which is sought to be calculated or to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between the industrial workman, and his employer."
It is not competent to the Labour Court exercising jurisdiction under Section 33C(2) to arrogate to itself the functions of an industrial tribunal and entertain a claim which is not based on an exiting right but which may appropriately be made the subject-matter of an industrial dispute in a reference under Section 10 of the Act.
It was further observed that "the workman, who has been dismissed, would no longer be in the service of the employer and though it is possible that on a reference to the Industrial Tribunal under Section 10 the Industrial Tribunal may find, on the material placed before it, that the dismissal was unjustified, yet until such adjudication is made, the workman cannot ask LCA No. 42/2014 Page 4 of 5 the Labour Court in an application under Section 33C(2) to disregard his dismissal as wrongful and on that basis to compute his wages. The application under Section 33C(2) would be maintainable only if it can be shown by the workman that the order of dismissal passed against him was void ab initio. Hence it becomes necessary to consider whether the contravention of Section 33C(2)(b) introduces a fatal infirmity in the order of dismissal passed in violation of it so as to render it wholly without force or effect, or despite such contravention, the order of dismissal may still be sustained as valid."
9. Herein, as per case of the claimant herself, the management terminated her services on 16.01.2014. There is none for the claimant to tell that the claimant raised any industrial dispute under Section 10 of the Act or that the same has been adjudicated upon. So the claim of the claimant for wages, which has been disputed, is not maintainable u/s 33C(2) of the Act.
This issue is accordingly decided against the workman and in favour of the management.
Issue No. 2/Relief:-
10. As a result of findings under issue no. 1, claimant is not entitled to any relief as prayed for. The claim is hereby dismissed.
Case file be consigned to Record Room.
ANNOUNCED IN OPEN COURT ON 19th Day of September 2015 (Narinder Kumar) Addl. District & Sessions Judge Presiding Officer Labour Court-XIX Karkardooma Courts, Delhi LCA No. 42/2014 Page 5 of 5