Delhi District Court
Sh.Pramod Kumar vs M/S Peacock Home Appliances (P) Ltd on 11 May, 2012
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IN THE COURT OF SH.S.S.MALHOTRA, PRESIDING OFFICER LABOUR COURT
IX, KARKARDOOMA COURTS/ DELHI
ID no.60/12
Unique case I.D no.02402C0087712012
Sh.Pramod Kumar
s/o Sh.Jagarnath Singh
c/o Bhartiya Audhyogik
General Kamgar Union(Regd)
Affiliated to Indian Federation of Trade Unions,
Opp.B126, Phase I, Mayapuri Industrial Area,
New Delhi64 Workman
Vs
M/s Peacock Home Appliances (P) Ltd.
C338, Bhorgarh, Narela,
Delhi40 Management
Date of Institution : 24.3.2012
Date on which order is reserved: 27.4.2012
Date of order : 11.05.2012
ORDER
11.5.2012 1 Vide this order, I shall dispose off the preliminary issue as framed by this court with respect to maintainability of the present claim filed by the claimant directly u/s 10(4) A of the I.D Act after the Central amendment in section 2 (A) of the I.D Act.
Pramod Kumar Vs M/s Peacock Home Appliances (P) Ltd.
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"Whether the present claim petition is maintainable in view of central amendment in section 2(A) of the I.D Act? OPW"
2 Brief facts as stated by the claimant in nutshell are that the workman has filed the present claim stating therein that he had been working with the management since last 8 years at the post of 'Karigar' and his last drawn salary was Rs.5600/ p.m . The management was functioning at CB103, Narayana in the year 2004 and thereafter it shifted to C10/48, Kirti Nagar where it worked in the year 2005 and then it has started functioning at Narela, Delhi and the workman had been working with the management at all the three places i.e. Narayana, Kirti Nagar and at Narela. The management was not providing him all the legal facilities and even ESI card was provided much later than his actual date of appointment . The workman was prevented from doing his duties on 11.7.2011 without any reason and then the workman issued a demand notice through his Union by registered A/D on 1.9.2011 and since the notice was not complied with, he filed the matter before the Deputy Labour Commissioner where also the Labour Inspector submitted his report. The workman is unemployed and he has accordingly, filed the present claim directly before this court and has prayed that the management be directed to reinstate the workman with full back wages and continuity of service alongwith other benefits.
Pramod Kumar Vs M/s Peacock Home Appliances (P) Ltd.
3/73 Present claim was received before this court on 24.3.2012 and the matter was fixed for arguments on the aspect of maintainability of the claim petition in view of the Central amendment in section 2(A) of the I.D Act and, the Ld.Authorized Representative for the workman appeared on 30.3.2012 and sought some more time to argue the matter and accordingly, a preliminary issue was framed. Ld.Authorized Representative for the workman has argued two folds i.e.the workman has approached the Labour Commissioner before approaching this court and as such there is proper compliance of the Central amendment in the I.D Act and secondly even the workman has not exausted the remedy of approaching the Conciliation Officer then the Central amendment in no way has repealed the provisions of the State amendment Act in Delhi in I.D Act in 2003. 4 By taking the first argument of the Ld.ARW first, that the complaint was filed before the Labour Commissioner, the court has inquired as to how a complaint filed before the Labour Commissioner is equivalent to the statement of claim filed before the Conciliation Officer to which it was argued that they both are one and same person. This Court had given sufficient time to the Ld.ARW to show that the Labour Commissioner and Conciliation Officer are one and same department/authority or whether there is such notification that both the different authorities have same powers under the I.D Act but despite having obtained the time, no such notification was filed. Court is of the opinion that the office of the Labour Commissioner and office of Conciliation Officer are two separate entities and claim before the Conciliation Officer only & not before the Pramod Kumar Vs M/s Peacock Home Appliances (P) Ltd.
4/7Labour Commissioner is a condition precedent for the purpose of complying the provisions of section 2(A) as amended upto date. Therefore, this contention of the Ld.ARW is of no avail.
5 Now, coming to the second contention of the Ld.ARW that this amendment in section 2(A) of the I.D Act on 15.9.10 is not having any effect on the State amendment in section 10(4) A of the I.D Act as by way of this amendment, the Central Government has not repealed the provisions of section 10(4) A of the I.D Act which amendment was brought by Delhi State in the year 2003.
I have perused the section 10(4) A of the I.D Act as amended upto today reads as under:
10(4)A: Notwithstanding anything contained in Section 9C and in this section, in the case of a dispute falling within the scope of section 2A, the individual workman concerned may, within twelve months from the date of communication to him of the order of discharge, dismissal, retrenchment or termination or the date of commencement of the Industrial Dispute(Delhi Amendment), Act, 2003 whichever, is later, apply in the prescribed manner, to the Labour Court or the Tribunal, as the case may be, for adjudication of the dispute and the Labour Court or Tribunal, as the case may be, shall dispose of such application in the same manner as a dispute referred under subsection(1)".
Pramod Kumar Vs M/s Peacock Home Appliances (P) Ltd.5/7
6 After amendment of section 2 A, provisions of section 2 A(2) & 2A(3) were inserted which reads as under:
(2) Notwithstanding anything contained in section 10, any such workman as is specified in sub section (1) may, make an application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of forty five days from the date he has made the application to the Conciliation Officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an Industrial dispute referred to it by the appropriate Government.
(3) The application referred to in subsection (2) shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in subsection (1).
7 I have heard the arguments and perused the record.
8 Section 10(4) A was inserted by State Government and it started with the words"
notwithstanding anything contained in section 9C". Section 2(A) (2) of the I.D Act was amended by Central Government and it also started with the words"
notwithstanding anything contained in section 10". Therefore, prima facie this court is of the opinion that the amendment brought by the Central Government impliedly Pramod Kumar Vs M/s Peacock Home Appliances (P) Ltd.
6/7nullifies the State amendment in section 10(4) A of the I.D Act. 9 Looking it from different angle and with the help of article 254 of the Constitution of India, Act also supports the above reasoning. Article 254 of the Constitution of India reads as under:
254 Inconsistency between laws made by Parliament and laws made by the Legislature of States(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to one of the matters enumerated in the Concurrent list, then, subject to the provisions of Clause (2), the law made by parliament, whether passed before or after the law made by the Legislature of such State, or as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State.
Provided that nothing in this clause shall prevent parliament from enacting at any time any law with respect to the same matter including a law adding to, amending , varying or repealing the law so made by the Legislature of the State".
Pramod Kumar Vs M/s Peacock Home Appliances (P) Ltd.
7/710 This Article is self explanatory and requires no interpretation and this court is of the opinion that the workman is unable to convince on merits that the amendment in section 2(A) of the I.D has not repealed the provisions of section 10(4) of the I.D Act. Therefore, preliminary issue is answered in negative. The claim is, therefore, dismissed. However, the workman is at liberty to file claim afresh after fulfilling the requisite formalities as provided in the Act.
File be consigned to the Record Room.
ANNOUNCED IN OPEN (S.S.MALHOTRA)
th
COURT ON 11 MAY , 2012 PRESIDING OFFICER
LABOUR COURTIX/KKD COURTS:DELHI
Pramod Kumar Vs M/s Peacock Home Appliances (P) Ltd.