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Delhi District Court

Shri Ram Veer & 7 Workmen vs M/S Ess Ee Couriers on 5 August, 2010

IN THE COURT OFSH. SUKHDEV SINGH,ADJ/POLC­VII
(EAST­DISTRICT), KARKARKOOMA COURTS, DELHI.
LCA No 40/2005
Unique Case ID No. 02402C0023132005
Shri RAM VEER & 7 Workmen
Through Skypak Service Specialists
Ltd & ESS EE Couriers Employ Union
Regd. 487
Present Office: 8/440, Trilok Puri,
Delhi. Claimant
Versus
M/s ESS EE Couriers,
LB­35, Tolstoy House, 17 Tolstoy Marg,
New Delhi.
.......Management
Date of institution of the Suit : 24.01.2005
Date on which order was reserved : 05.08.2010
Date of decision : 05.08.2010
O R D E R

Workmen have filed a claim petition under Section 33 (C) (2) of the Industrial Disputes Act, ( hereinafter referred to as 'the Act') on account of payment of less wages by the Management.

2 It is, inter alia, stated in the common claim petition that the Management had been paying less wages than the Minimum Wages decided by Delhi Government. It is further stated by them that when the Union made the demand from the Management, the Workmen were suspended. They have detailed the amount claimed by them in Statement of Account annexed with the claim petition. Hence, the present claim.

3 Notice of the claim petition was given to the Management, however, they have not appeared. Hence, they have been proceeded exparte.

4 In support of their claim, the Workmen viz.; S/Shri Suresh Kumar, K. Rajbhar, Santan Kumar, Ramvir Singh, Netrapal, Ram Chander and Shri B.D Tiwari have tendered their evidence by way of affidavit Ex.WW.1/A to Ex.WW.7/A. They have relied upon their respective appointment letter and statement of account. 5 None has put appearance on behalf of the Workmen to argue the matter. I have perused the material placed on record.

6 Firstly, from the testimony of the Workmen and documents relied upon by them, it has to be seen whether LCA No. 40/2005 Page 2/5 the Workmen have any existing/pre­existing right or Award in their favour. Before examining their testimony and documents on record, it would not be out of place to have a look to Section 33 (C) (2) of the Act. The same is reproduced hereunder:

Recovery of money due from an employer­ (1)..................................... (2) 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.

The interpretation to this Section has also been given by the Hon'ble Supreme Court in UOI & Anr. Vs. Kankuben (Dead) by L.Rs & Others, 2006 SCC L& S, 1700 where it has been laid down that :­ ``Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of LCA No. 40/2005 Page 3/5 money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33­C (2) of the Act. The benefit sought to be enforced under Section 33­C (2) of the Act is necessarily is pre­existing benefit or one flowing from a pre­existing right. The difference between a pre­existing 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 Act while the latter does not.'' 7 In the light of the above decision, it has to be seen whether the Workmen have a pre­existing right or not. If the affidavits/testimonies of Workmen are perused which are more or less common except the amount being claimed, it is noticed that they have claimed the amount towards payment of less wages as prescribed by the appropriate Govt. Whether the Workmen were being paid less wages than the wages under Minimum Wages Act or not at the relevant time and on demanding the same, their services were suspended and later on, terminated by the Management is the question which requires determination on the basis of evidence.

However, a bare perusal of Section 33 ( C ) (2) of the Act shows that the court cannot go into any question which requires determination. The power is of executory in nature. The fact that it requires determination with regard to their entitlement, their claim in the present petition cannot survive under Section 33­C (2) of the Act. 8 In view of the above, I am of the opinion that the Workmen have failed to prove their case and their claim petition deserves dismissal. Therefore, the same is dismissed. File be consigned to Record Room. Announced in open court (SUKHDEV SINGH ) Dated:05.08.2010 Addl. Distt. & Sessions Judge POLC­VII, Karkardooma Courts, Delhi.