Karnataka High Court
C.J.Shivakumar vs The Managing Director Bmtc on 16 February, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2018
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION NO.42656 OF 2014 (LK)
BETWEEN:
C.J. Shivakumar
S/o Late C.R. Puttajunjaiah,
Aged about 44 years,
R/at Ashwatha Kate Beedi,
Chelur, Gubbi Taluk,
Tumkur District.
...Petitioner
(By Sri. M.C. Basavaraju, Advocate)
AND:
The Managing Director,
BMTC, Central Offices,
K.H. Road,
Shanthi Nagar,
Bengaluru - 560 027.
...Respondent
(By Smt. H.R. Renuka, Advocate)
This writ petition is filed under Articles 226 and
227 of Constitution of India praying to quash the
impugned order dated 02.01.2014 passed by the
Principal Labour Court, Bengaluru in application
No.8/2012 vide Annexure-A to this writ petition and etc.
This writ petition coming on for Preliminary
Hearing in 'B' Group, this day, the Court made the
following:
2
ORDER
Though matter is listed in Preliminary Hearing in 'B' Group, with the consent of the learned advocates appearing for the parties it is taken up for final disposal.
2. Heard Sri.M.C.Basavaraju, learned counsel appearing for petitioner and Smt.H.R.Renuka, learned counsel appearing for respondent-Corporation and perused the records.
3. Petitioner herein filed an application under Section 33(C)(2) of the Industrial Disputes Act, 1947, claiming a sum of Rs.3,14,440/- as wages for the period from 05.06.2008 to 21.07.2010 with interest at 10% per annum and cost from respondent-Corporation contending inter-alia that he has suffered injuries while on duty, as such, he was entitled for "INJURY ON DUTY WAGES" i.e., as per IOD Wages".
4. In the application filed before Labour Court, it was contended that applicant had developed severe weakness in the entire body and became unconscious, 3 resulting in fracture of back bone was and as such was shifted to the hospital for treatment. He also contended that during the period of treatment and thereafter, he could not discharge his duties as driver on account of doctor having advised him to discharge light duties and had also advised him to take rest. Hence, he sought for wages for the period from 05.06.2008 to 21.07.2010 and sought for this period being treated as 'Injury On Duty'.
5. On petitioner's prayer being turned down by Corporation, application in question came to be filed and respondent-Corporation filed its statement of objections and denied the averments made in the claim petition and also contended that claim petition itself is not maintainable, since there was no determination by any competent authority Court qualifying the claim by adjudicating it. It was further contended that applicant had remained unauthorizedly absent from 23.12.2002 and on call letter dated 12.03.2003 being issued to report to duty, applicant has appeared before the 4 competent authority on 20.03.2003. Other contentions raised by the applicant came to be denied.
6. Before the Labour Court, applicant got himself examined as AW1 and got the documents marked Ex.A1 to A12 documents. Assistant Administrative Officer of the Corporation was examined as RW1 and through him, Ex.R1 to R7 were got marked.
7. Having heard the learned Advocates appearing for both the parties and on evaluation of the evidence tendered by the parties, Labour Court rejected the application on the ground that applicant had failed to prove the alleged accidental injury having been sustained and expenses having been incurred and also on the ground that the claim of the applicant has not been adjudicated and compensation has not been quantified.
8. It is the contention of Mr.M.C.Basavaraju, learned counsel appearing for applicant that Labour Court erred in not considering the provisions under 5 Section 33(C)(2) of Industrial Disputes Act, 1947 in proper perspective in as much, any money due to an employee from his employer which has remained unpaid, the remedy available to the employee is under Section 33(C)(2) of Industrial Disputes Act, 1947 only and as such, Labour Court was not justified in rejecting the application. He would further elaborate his contention that Labour Court was not at all justified in arriving at a conclusion that applicant had failed to prove the alleged accident though Ex.A3 would disclose the injuries sustained by the claimant, on account of which he was not able to discharge his duties as driver and the very fact that Corporation had itself entrusted light work would fortify the claim of the applicant. Hence, he has prayed for allowing the writ petition by quashing the impugned order and granting wages as claimed in the application filed under Section 33(C)(2) of Industrial Disputes Act, 1947.
9. Per contra, Smt.H.R.Renuka, learned counsel appearing for the Corporation would not only defend the 6 order passed by the Labour Court but would also contend that finding recorded by the Labour Court is based on proper evaluation of evidence and she submits that Section 33(C)(2) of Industrial Disputes Act, 1947, being execution proceedings it would empower jurisdictional Labour Court to pass an order only in the event of there being quantification of the amount to which an applicant would be entitled to and not in its absence thereof.
10. Having heard the learned advocates appearing for the parties and on perusal of records, it would disclose that petitioner has sought for payment of Rs.3,14,440/-, on the ground said amount is to be treated as 'Injury on Duty Wages' for the period from 05.06.2008 to 21.07.2010 with interest at 10% per annum. A bare reading of Section 33(C)(2) of Industrial Disputes Act, 1947 would disclose that for any money due to the employee by his employer, such recovery proceedings to recover the said amount can be resorted by invoking said provisions. Any claim which could be 7 computed in terms of money which has been arrived at by way of settlement awarded or undisputed or an quantified amount, can be the subject matter of the proceedings under Section 33(C)2 of Industrial Disputes Act, 1947. In other words, the right to money must be an existing right which has already been adjudicated or decided by a competent or appropriate authority. If there being no adjudication or the amount to which an employee would be entitled to has not been quantified by the employer or any other statutory authority and there being a serious dispute with regard to such claim or entitlement then such claim would fall outside the scope of Section 33(C)(2) of Industrial Disputes Act, 1947. The law decision laid down by the Hon'ble Apex Court in the case of State of U.P. and another V/s. Brijpal Singh reported in 2005 8 SCC 58 referred to by Labour Court would fortify this view.
11. Writ petitioner in the instant case has claimed "INJURY ON DUTY" WAGES for the period from 05.06.2008 to 21.07.2010 in a sum of Rs.3,14,440/-. As 8 to the basis on which this amount has been claimed or its quantification having been done by competent authority or appropriate authority is not forth coming from the records of the Labour Court. In fact, petitioner has failed to prove alleged the incident or accident on the basis of which he is making a claim. There being a serious dispute with regard to this factual aspect itself and there being no adjudication or the said claim having not been recognized or accepted by the employer at any point of time during the course of the employment, the Labour Court was fully justified in rejecting the claim. Hence, this Court finds that there is no infirmity either on facts or in law calling for interference at the hands of this Court.
Hence, the following order.
ORDER
i) Writ petition is hereby dismissed;
ii) Order dated 02.01.2014 passed by the III
Additional Labour Court, Bangalore in
application No.8/2012 is hereby affirmed. 9
iii) It is made clear that if the petitioner is having any other remedy available in law, he would be entitled to prosecute his claim in the manner known to law and no opinion is expressed in that regard.
Ordered accordingly.
SD/-
JUDGE SB