Delhi District Court
M/S. Batra Press vs Batra Press Page No. 2 Out Of 13 on 19 November, 2014
IN THE COURT OF SH. SANJEEV KUMAR
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER LABOUR COURT
KARKARDOOMA COURTS, DELHI
LCA NO. 160/14 (Old LCA No.124/10)
Sh. Manish Kumar, S/o. Sh. Satyadev Kumar,
C/O. Universal Prodist Labour Federation (Regd.),
In front of A92, Okhla Phase II,
New Delhi : 02.
.........Workmen
Versus
1.M/s. Batra Press,
Through Directors
D20/2 Okhla Phase II,
New Delhi.
2. Sh. Maninder Singh Batra @ Raju Batra,
W33,First Floor, Rajouri Garden,
New Delhi.
3. Smt. Baljeet kaur,
2602Hadsen Loin, Delhi.
4. Smt. Manmeet Kaur,
D141 Ashok Vihar, Phase : I,
New Delhi .......Managements
Date of Institution : 19.10.2010
Date of order : 19.11.2014
LCA No. 160/14 Manish Kumar vs. Batra Press Page No. 1 out of 13
ORDER : 1 Vide this order, I shall dispose off the application filed by the workmen U/s. 33 C(2) of ID Act, 1947. 2 The brief facts as stated in the application are that the applicant was working with the respondent since October, 2001 as 'Fitter Man'. When the applicant demanded legal facilities provided by Delhi Government, the management has illegally terminated the services of workmen without paying earned wages and overtime etc. The applicant filed industrial dispute and in the said case reply filed by the management/respondent in Labour Court that the R1/Batra press has been closed and due to which the workman has withdrawn that case. It is further stated by applicant that owner of R1 was Mr. R.S. Batra who has expired and his property has devolved among his son Maninder Singh (herein after called as R2) in the ratio of 50% and daughters Baljeet Kaur and Manmeet Kaur (herein after called as R3 and R4 respectively) in the ratio of 25% each. The R2 to R4 do not want to pay balance dues of the workmen given in the annexure A. Therefore, to compute the said dues present application has been LCA No. 160/14 Manish Kumar vs. Batra Press Page No. 2 out of 13 filed. As per annexure the details of amount is as under:
Notice pay one month Rs. 3200/
Grauity of 17 days Rs.12000/
Chhatni compensation Rs.12000/
Earned wages, overtime
Oct. Nov. 2008 Rs. 7292/
Bonus for the year 2006 to 08 Rs. 9600/
Earned leave 45 days Rs. 4800
TOTAL : Rs.48,892/
And thus applicant has claimed a total sum of Rs. 48,892/ alongwith 18% interest from the management. 3 Notice of the application was sent to the respondents But despite service none appeared on behalf of the respondent therefore, respondents were proceeded exparte. Exparte evidence was led by the applicant through affidavit Ex. WW1/A. He also relied upon document WW1/1 to WW1/6.
4 Thereafter, exparte final arguments were heard from Sh. S.B. Dubey AR for applicant.
5 The applicant has almost repeated the same contents in his affidavit Ex WW1/A as stated by him in his statement of claim/application in para 2 alone). Beside this he has relied upon documents WW1/1 which is demand notice dt.15.12.2008 sent LCA No. 160/14 Manish Kumar vs. Batra Press Page No. 3 out of 13 through union, WW1/2 is postal receipt, 1/3 is complaint dt. 16.12.2008 filed by workman through Union before Assistant Labour commissioner, WW1/4 is the notice of Advocate sent on behalf of Ms. Baljeet Kaur (R3) to one Ms. Graphle paper product where by she informed that property of Rajinder Singh (Proprietor of R1) has expired and his property has devolved 50% in his son and remaining 50% in his two daughters, W1/5 is the copy of will of Rajinder Singh, WW1/6 is the statement of claim filed by applicant through union before Sh. Sanjay Gaur, PO Labour court demanding earned wages and overtime and back wages. It is the case of the workman that he is the employee of respondent no. 1 and was working with the R1 from 2001.
6 I have considered the arguments and gone through the record. As per the case of the workman, the owner of the R1 RS Batra has expired and his property was devolved among R2 to R4. Thus from the pleading it is evident that R1 was proprietorship concern and same came to an end/closed as soon as the sole proprietor Sh. R.S. Batra dies. An application u/s 33C(2) cannot be filed against a closed industry.
7 Further As per reply EXWW1/6 of Manmeet Kaur/R4 LCA No. 160/14 Manish Kumar vs. Batra Press Page No. 4 out of 13 file in industrial dispute in response to statement of claim file by applicant in Labour Court respondent no.4 has denied the relationship of employeremployee between her and applicant. Hence the applicant was very well aware that relationship of employeremployee is disputed. It is settled law that in an application u/s 33C(2) relationship of employeremployee cannot be determine. Even otherwise nowhere it has been alleged by applicant that R1 is being run by R2 to R4 after the death of R.S. Batra. R2 to R4 had been only made party as they are the legal heir of proprietor of R1 and according to applicant property of owner of R1 has been devolved among them. Merely devolving of property do not make R2 to R4 employer of applicant and they do not inherent the industry and therefore applicant do not become employee of R2 to R4. Hence, in my view there is no relationship of employer - employee between the applicant and R2 to R4 and Further since R1 has been closed after the death of its sole owner therefore applicant relationship has come to an end with R1. Hence no relief can be claimed against R1 or against those person who has inherited the R1 being legal heir of its sole owner. The proceedings u/s. 33C(2) are in the nature of execution proceedings LCA No. 160/14 Manish Kumar vs. Batra Press Page No. 5 out of 13 and once it is shown that the relationship of master and servant has come to an end, rightly or wrongly, it is not open to the Labour court to proceed on the basis that it still exists and commute the monetary benefits to which the workman may, in the event entitled to as held in Canara Bank v. Presiding officer 1994 LLR 189 (P&H).
8 Even otherwise on merit, of Manmeet Kaur/R4 applicant has claimed Rs.3200/ as notice pay but he has not explained either in the application or in his evidence on what ground he is claiming the notice pay. It appear he is claiming the same on the ground that he has been retrenched as he has also claimed Rs.12000/ as retrenchment compensation. On the one hand he has stated that he was terminated illegally be management on the other hand he is claiming the retrenchment compensation which can be given to a workman when he has retrenched legally. Hence there is a contradiction in the relief claim by him and facts he has stated. Further the issue whether workman was terminated illegally or he is entitle to retrenchment compensation cannot be decided in the application u/s 33C(2) ID Act and can be decided only in dispute raised u/10 of ID Act as the proceedings u/s LCA No. 160/14 Manish Kumar vs. Batra Press Page No. 6 out of 13 33C(2) is only in the nature of execution and only benefits which are predetermined either through an adjudication or in an award or settlement entered between management and workman which needs to be computed in term if money can be computed in application u/s 33C(2) ID.Act as held in State of Utter Pardesh & another vs Brijpal Singh Civil Appeal no.5910/2005 dt. 27.09.2005 where in Honble Supreme Court has held that:
"It is well settled that the workman can proceed under Section 33C(2) only after the Tribunal has adjudicated on a complaint under Section 33A or on a reference under Section 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman. This Court in the case of Punjab Beverages Pvt. Ltd. Vs. Suresh Chand , (1978) 2 SCC 144 held that a proceeding under Section 33C(2) is a proceeding in the nature of execution proceeding in which the Labour Court calculates the amount of money due to a workman from the employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to compute the benefit in terms of money. Proceeding further, this Court held that 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. This Court further held as follows:
"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 existing right but which may appropriately be made the LCA No. 160/14 Manish Kumar vs. Batra Press Page No. 7 out of 13 subject matter of an industrial dispute in a reference under Section 10 of the Act."
Further in this case Supreme Court held that :
"Thus it is clear from the principle enunciated 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 respondentworkman 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 of Mrs. Shymala Pappu that the respondentworkman 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 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 I.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 LCA No. 160/14 Manish Kumar vs. Batra Press Page No. 8 out of 13 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. Case 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 uncalled for. We do so accordingly."
9 In the case of Municipal Corporation of Delhi vs. Ganesh Razek & Anr., (1995) 1 SCC 235 . Hon,ble Supreem Court held as under :
"12. 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 a proceeding 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 compare 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 thereof some ambiguity required 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.
In the case of State Bank of India vs. Ram LCA No. 160/14 Manish Kumar vs. Batra Press Page No. 9 out of 13 Chandra Dubey & Ors. , (2001) 1 SCC 73, this Court held as under:
"7. When a reference is made to an Industrial Tribunal to adjudicate the question not only as to whether the termination of a workman is justified or not but to grant appropriate relief, it would consist of examination of the question whether the reinstatement should be with full or partial back wages or none. Such a question is one of fact depending upon the evidence to be produced before the Tribunal. If after the termination of the employment, the workman is gainfully employed elsewhere it is one of the factors to be considered in determining whether or not reinstatement should be with full back wages or with continuity of employment. Such questions can be appropriately examined only in a reference. When a reference is made under Section 10 of the Act, all incidental questions arising thereto can be determined by the Tribunal and in this particular case, a specific question has been referred to the Tribunal as to the nature of relief to be granted to the workmen.
8. The principles enunciated in the decisions referred by either side can be summed up as follows:
Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33 C(2) of the Act. The benefit sought to be enforced under Section 33 C(2) of the Act is necessarily a preexisting benefit or one flowing from a pre existing right. The difference between a pre existing right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33C(2) of the LCA No. 160/14 Manish Kumar vs. Batra Press Page No. 10 out of 13 Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi judicial proceeding. Further when a question 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 proceeding 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 factors 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. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages."
11 The workman has claimed earned wages and over time of Rs. 7292/ but in his affidavit Ex. WW1/A he has not deposed for which period earned wages or overtime not paid to him or how many hours a day he done overtime. He has not filed any documents to prove that he was not paid earned wages or LCA No. 160/14 Manish Kumar vs. Batra Press Page No. 11 out of 13 overtime is due. Similarly, in his affidavit he has not deposed that any leave amount is due. No document has been filed by him to prove that his 45 days earned leave were due. No application has been filed to summoned the documents to proved the same. Hence he has failed to proved that he is entitle to computation of earn wages, overtime or leave wages.
12 The workman has also claimed gratuity of Rs. 12000/. There is specific authority constituted under Payment of Gratuity Act. Hence, gratuity cannot be computed in an application u/s 33C (2) of the I.D. Act. In this regard I rely upon State of Punjab vs Labour Court Jullandhar AIR1979SC1981. 13 The workman has also claimed bonus of Rs. 9600/ for the period of 2006 to 2008. As per Supreme Court judgement HP State Electricity Board and others vs. AIR 2008 SC 1602 labour court Labour court can decide the matter specify in item 6 of second schedule of labour court. pItem 6 of second Schedule says that Labour court deals with all matters except those in 3rd schedule bonus appear in item 5 in 3rd schedule therefore, could not be decided by Labour court. Hence, I held that this court has no power to decided whether the workman is entitled for bonus LCA No. 160/14 Manish Kumar vs. Batra Press Page No. 12 out of 13 therefore, he is not entitled for computation of bonus amount. However he is at liberty to approach any other forum as per law for claiming the bonus amount.
14 Therefore in view of above discussion, I held that there is no merit in the application and same is hereby dismissed. Announced in the open court on 19th November, 2014.
(SANJEEV KUMAR) POLC/KKD /19.11.2014 LCA No. 160/14 Manish Kumar vs. Batra Press Page No. 13 out of 13 LCA No. 160/14 Manish Kumar vs. Batra Press Page No. 14 out of 13