Delhi District Court
Between The vs The on 3 August, 2015
IN THE COURT OF SH. RAMESH KUMARII, PRESIDING OFFICER:
LABOUR COURT NO. IX, KARKARDOOMA COURTS: DELHI
Unique Case ID No. 02402C0296072012
LCA 09/12
Date of institution 10.10.2012
Date of order 03.08.2015
BETWEEN THE WORKMAN
Shri Satpal S/o Sh. Ram Kumar, R/o E167, Yadav Nagar, Samay Pur, Badli, New
Delhi110042.
AND
THE MANAGEMENT OF
M/s Kaushik Orthopaedic Corporation, C112, Gali No.6, Near Shakti Bhog Atta
Mill, Samaypur, Delhi110042.
ORDER
1 By this order I shall dispose off the claim of the claimant as filed by him directly under section 33 (C) (2) of the Industrial Disputes Act, 1947 against the management for recovery of amount due on the management.
2 Brief facts as stated by the workman in his claim are that he had been working with the management since 2003 as skilled worker and his monthly last drawn salary was Rs.4,000/ per month. The workman always performed his duties according to the directions of the management with hard labour and honestly and he never afforded any chance of any complaint to the management during his entire service period nor there was any charge sheet against him but despite that, the management had not been providing various legal facilities such as maintenance of proper service record, appointment letter, attendance card, attendance register, minimum wages, bonus yearly LCA 09/12 1/9 and casual leave and leave book etc. to the workman and when the workman demanded the same, the management got annoyed and started harassing him after adopting anti labour practices. It is further that that in the month of May'2010, the workman demanded the increased/revised minimum wages by the Govt. of NCT of Delhi along with arrears, the management got annoyed and Shri Arun Kaushik terminated the services of the workman on 28.05.2010 without payment of earned wages for the month of May'2010 without giving/offering any notice or notice pay, retrenchment compensation. It is further stated that after the illegal termination of the services of the workman by the management, the workman challenged the termination of his services by filing a Direct Industrial Disputes u/s 10 (4A) of the Industrial Disputes Act before the Presiding Officer of Labour Court No.VII, Karkardooma Courts, Delhi and the same was numbered and registered as DID No.44/2011 and notice of the claim was issued to the management and after due service of the Hon'ble Presiding Officer of Labour Court No.VII, Karkardooma Courts, Delhi, appeared and filed his written statement and during the course of adjudication of the aforesaid direct industrial disputes, the proprietor of the management and the workman had entered into an agreement on 07.06.2012 and as per settlement the management was required to pay Rs.30,000/ in full and final settlement of previous claim and management was further provide the workman fresh appointment from 20.06.2012. It is further stated that as per the settlement dated 07.06.2012 the management had paid Rs.10,000/ in cash and Rs.20,000/ by way of an account payee cheque and accordingly, a settlement award was in terms of settlement was passed on 02.07.2012. It is further stated that as per the settlement dated 07.06.2012, the management was required to provide the workman fresh appointment with effect from 20.06.2012 and accordingly, workman reported for duty in the factory of the LCA 09/12 2/9 management on 20.06.2012 but Sh. Arun Kaushik, the proprietor of the management refused to reinstate the workman however, the workman keeps reporting for duty in the factory of the management on 21.06.2012, 22.06.2012 and 23.06.2012 but in vain. The management has knowingly and willfully not reinstated the workman despite the settlement dated 07.06.2012 and consequent award dated 02.07.2012 and thus the workman is entitled for full back wages w.e.f. 20.06.2012 till the date of reinstatement. The detail of money dues on the management towards the applicant workman are as follows :
Period Back Wages @ Minimum Wages 20.06.12 - 30.06.12 Rs.2,842/ 01.07.12 - 30.09.12 Rs.25,584/ 3 It is further stated that aforesaid amount is undisputed due amount of the
workman on the management and the management is liable to pay the workman and the workman is entitle to get aforesaid amount. Hence, the management is also liable to pay full wages to the workman till the date of his reinstatement.
4 The management has contested the present case and filed written statement thereby taking preliminary objections that no demand notice has been served by the applicant and the present application is rather an abuse of process of law and the present application without prior adjudication, award or settlement is not maintainable in the eyes of law is liable to be dismissed. It is further stated that claim of the claimant is not maintainable as the claimant is not the workman as defined u/s 2 (S) of the ID Act. It is submitted that admittedly the application concerned left the job of his own without any reason and filed a false case before the Labour Courts and to settle the matter, it was compromised that the management shall pay a sum of Rs.30,000/ in lumpsum and will LCA 09/12 3/9 offer a fresh job on fresh terms and conditions against a fresh post. It is further stated that at that time the applicant requested that as he is doing the job with other management and as such he will join the present management w.e.f. 20.06.2012 and as such it was further settled that the applicant shall move a fresh application for fresh post on 20.06.2012 and the applicant did not move any application for appointment nor joined and as such the applicant cannot be said himself as a workman, hence, there is no relationship of employer/employee between the management of the claimant and as such this Hon'ble Court has no jurisdiction to adjudicate to upon the present claim and the same is liable to be rejected on this ground. It is further stated that the claimant has concealed the fact that he obtained a loan of Rs.15,000/ from the management on the pretext that the same will be treated as an advance after his joining with the present management and the same was no complied by the claimant, as such the claim of the claimant is not maintainable and the same is liable to be dismissed. It is further stated that this Hon'ble Court has no jurisdiction to try and adjudicate the claim of the claimant as the claimant is neither the workman nor there exits any relationship of workman and the management nor he is entitled for any salary as he was not appointed on fresh job and till the date of appointment he cannot be said as an employee/workman and as such the claimant cannot be calculated in terms of monetary benefits. On merits all the averements of statement of claim have been denied word by word and it is prayed that the claim of the claimant is liable to be dismissed and may kindly be dismissed. 5 The workman filed rejoinder in which he denied all the facts of written statement and reiterated and reaffirmed the facts of the statement of claim as correct and it is prayed that an award may kindly be passed in favour of the workman in terms of the prayer made by him in the statement of claim.
LCA 09/12 4/9 6 After the completion of pleadings, following issues were framed by my Ld. Predecessor vide order dated 13.02.2013:
1 Whether there is any employeremployer relationship in existence in between the claimant and the management before filing of the present claim under section 33 (C) (2) of the Industrial Disputes Act? OPW.
2 Whether the present claim as framed is maintainable under section 33 (C) (2) of the Industrial Disputes Act with respect to the terms of settlement in the previous I.D. No.44/11? OP Parties.
3 Whether the workman is entitled to the relief claim as stated by him in statement of claim?OPW.
4 Relief.
7 After framing of the issues, the matter was fixed for workman's evidence. The workman examined himself as WW1 in support of his case. On the other hand the management examined Sh. Arun Kaushik, Proprietor of the management, as MW1. It is also a matter of record that the management had moved an application for granting additional opportunity to lead management evidence which was dismissed vide order dt. 04.06.14 and thereafter, matter was fixed for final arguments. 8 Ld. ARs for both the parties did not advance their arguments despite various opportunities.
9 Record perused. On perusal of record my issuewise findings are as follows: ISSUE NO.1 & 2 10 In nutshell the claim of the workman is that earlier he has filed his case u/s 10 (A) of the Industrial Disputes Act against the management against his illegal termination by the management before the court of Sh. Satender Kumar Gautam, Ld. POLCVII, LCA 09/12 5/9 Karkardooma Courts, Delhi which was registered as DID No. 44/2011 but in that case both the parties had entered into an agreement on 07.06.12 and their statement were recorded on 07.06.12 itself and as per settlement dt. 07.06.12 the management had paid Rs.10,000/ in cash and Rs.20,000/ by way of account payee cheque no.506594 dt. 07.06.12 to the workman and accordingly a settlement award was passed on 02.07.12. As per the settlement dt. 07.06.12 the management was required to provide the workman fresh appointment w.e.f. 20.06.12 and he reported for duty in the management on 20.06.12 but Sh. Arun Kaushik, the proprietor of the management refused to reinstate him despite his various visits on 21.06.12, 22.06.12 and 23.06.12 but in vain and as such the workman is entitled to Rs. 28,426/ towards full back wages w.e.f. 20.06.12 till the date of reinstatement. On the other hand the defence of the management in written statement is that it was compromised that the management shall pay a sum of Rs.30000/ in lump sum and will offer a fresh job on fresh terms and conditions against a fresh post and at that time the applicant requested that as he is doing the job with other management and as such he will join the present management w.e.f. 20.06.12 and as such it was further settled that the applicant shall move a fresh application for fresh post on 20.06.12 but the applicant did not move any application for appointment nor joined and as such there exists no relationship of employer/employee between the parties. 11 The workman in support of his case has relied upon documents i.e. Ex.WW1/1 which is the certified copy of my statement dt. 7.06.12 before the court of Sh. Satender Kumar Gautam, Ld. POLC, Ex.WW1/2 which is the certified copy of statement of the proprietor of the management Sh. Arun Kaushik dt. 7.06.12 before the court of Sh. Satender Kumar Gautam, Ld. POLC, Ex.WW1/3 which is the certified copy of photocopy of cheque, Ex.WW1/4 which is the certified copy of the award dt. 2.07.12 LCA 09/12 6/9 and Ex.WW1/5 is application dt. 4.07.12.
12 I have perused the aforesaid documents relied by Ld.AR for workman and after perusing these documents it is revealed that the workman and management had settled the dispute amicably on 07.06.12 which was pending before the court of Sh. Satender Kumar Gautam, Ld. POLCVII. Hence, the rights of both the parties were not decided on merits. The workman by way of present application is claiming full back wages w.e.f. 20.06.12 till the date of reinstatement. The management has taken preliminary objection in written statement that it is well settled that proceeding u/s 33 (C) (2) are in the nature of execution proceeding and once it is shown that the relationship of master and servant is not present then the Labour Court cannot proceed on the basis to commute the monetary benefits. This court is very much convinced with the contention of the management that once employer and employee relationship itself is disputed, no claim can be maintainable particularly u/s 33 C (2) of the Industrial Disputes Act. This court is taking the support of the judgment of our own Hon'ble High Court of Delhi titled as Vishnu Kumar Mangla Vs Dhaneshwar Gupta & Sons LPA no.603/09, wherein it was interalia held that: "matters which can be considered u/s 33 C (2) of the I.D Act, 1947 are such matters where the relief sought for is capable of being computed and it was interalia held that in case relationship itself is denied, it can not be held that there is any preadjudication with respect to the rights of the claimant". All the facts as stated by the workman in his claim u/s 33 C (2) of the I.D Act are disputed facts and are liable to be adjudicated upon first and as such the claim is not maintainable u/s 33 C (2) of the I.D Act".
13 In the case titled as Vishnu Kumar Mangla (Supra), the Hon'ble High Court of Delhi has relied upon one judgment titled as MCD Vs Ganesh, Razak, 1995 1 SCC 235, LCA 09/12 7/9 in which it was interalia held that: "the claim which is not based on the existing rights is not maintainable u/s 33 C (2) of the I.D Act, 1947 as the proceedings under this section are in the nature of execution proceedings and the Labour Court has no jurisdiction to first decide the entitlement of the workman and on that basis to pay the benefits". It was further held in Vishnu Kumar Mangla (Supra) as under:"The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workman to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to the entitlement is not incidental to the benefit claim and is, therefore, clearly outside the scope of a proceeding u/s 33 C(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 33 C(2) of the Act. It is only when the entitlement, has been earlier adjudicated or recognized by the employer and thereafter for the purpose or implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power under section 33 C (2) like that of the executing Court's power to interpret the decree for the purpose of its execution".
14 Keeping in view the fact that the relief which the workman has sought for in the present claim is not calculable without a trial and since it has been proved on record that the rights of the parties have not been adjudicated upon so far, this court has no jurisdiction to entertain the present claim under section 33 C (2) of the Industrial Disputes Act. Keeping in view the law points cited herein above and also keeping in view the proceedings under section 33 C (2) of the Industrial Disputes Act which are in the form of execution of the claim, it is held that the present claim of the workman under LCA 09/12 8/9 section 33 C (2) of the Industrial Disputes Act is not maintainable in the present form. Issue no.1 and no.2 are decided against the workman.
ISSUE NO.3 15 The onus to prove his issue was upon the workman and the workman was required to prove that he is entitled to the relief claim as stated by him in the statement of claim. Since the present claim is not maintainable in the present form, it is held that the workman is not entitled to any relief against the management. Issue no.3 is decided against the workman.
RELIEF (ISSUE NO.4) 16 Keeping in view the findings of this court on issue no.1 to 3, the claim of the workman under section 33 (C) (2) of the Industrial Disputes Act, 1947 is dismissed 17 Judicial file be consigned to Record Room as per rules.
PRONOUNCED IN OPEN COURT (RAMESH KUMARII)
ON 03.08.2015 PRESIDING OFFICER:
LABOUR COURTIX/
EAST DIST./KARKARDOOMA COURTS:
DELHI
LCA 09/12 9/9