Delhi District Court
Date Of Institution 01.12.2016 vs Sh. Vineet Khurana on 7 July, 2023
1
IN THE COURT OF Ms. MONIKA SAROHA
PRESIDING OFFICER, LABOUR COURT NO. 02,
ROUSE AVENUE COURT COMPLEX: NEW DELHI
CNR No. DLCT13-014024-2016
LCA No. 1024/2016
Date of institution 01.12.2016
Date of Award 07.07.2023
Sh. Ashok Khanna,
S/o Sh. Ram Chandra Khanna,
R/o 592, Niti Khand-2, Indirapuram,
Uttar Pradesh-201010.
The requisite details of the workman in compliance of judgment of
Hon'ble High Court of Delhi titled as Director General of Works
(CPWD) Vs. Laljeet Yadav & Ors. W.P.(C) No.2540-2021, DOD
16.07.2021 are as follows:
Permanent Address of the workman:
R/o 592, Niti Khand-2, Indirapuram,
Uttar Pradesh-201010.
Any other address of workman available on record:
Details not furnished.
Name and Mobile Number of A.R. for workman:
Sh. Arjun Kumar and Sh. Sudhir Ranjan Singh,
Mobile Numer : 9810592257
Details of one of immediate family member of the workman:
Details not furnished.
LCA No. 1024/16
2
Aadhar Card and Phone Number of workman:
Details not furnished.
.....Applicant/Workman.
Versus
1.Sh. Vineet Khurana, S/o Sh. Banarsi Das Khurana R/o 289, Kohat Enclave, Pitampura Delhi.
2. Sh. Vimal Khurana, S/o Sh. Banarsi Das Khurana R/o 45, Sarita Vihar, New Delhi.
3. Khurana Calender Company, 2685, Roshan Pura, Nai Sarak, Delhi-110006.
4. Metro Binding House, F-115, Panchsheel Garden, Sarovar Road, Naveen Shahadara, Shahadara, Delhi-110032.
5. Khurana Enterprise, 9038/14, Shindi Pura, Karol Bagh, New Delhi-110006.
Management No. 1, 2, 3 and 5 represented by Sh. Hitender Kumar Nahata and V.P. Singh.
R/o-: 4735/XI, Prakash Deep Building, DMA Road, Dariyaganj, New Delhi-110002, Contact No. 9910290400.
...Managements.
LCA No. 1024/16 3AWARD
1. Vide this order, I shall dispose off the claim under Section 33-C (2) of the Industrial Disputes Act, 1947 filed by the applicant/claimant against the managements.
CLAIM OF THE WORKMAN
2. According to the claimant, he was an employee of the managements and working with the managements since February, 1993 on the post of 'Supervisor/Manager' on the last drawn wages of Rs.13,000/-. He alleges that the managements terminated his services verbally in April 2016 without assigning any reason, issuance of notice, charge sheet and without conducting any domestic enquiry. According to the claimant, the managements failed to pay his dues i.e., the arrears of earned wages, bonus, leave encashment, double overtime and arrears of minimum wages etc., to him at the time of termination of his employment. He prays in this application for directions to the managements to pay the following amount-:
a) A sum of Rs.1,80,000/- (Rupees one lakh eighty thousand only) for the total overtime during the period of his service.
b) A sum of Rs. 1,49,500/- (Rupees one lakh forty nine thousand five hundred only) as gratuity for the total number of years worked.
c) A sum of Rs. 39,000/- (Rupees thirty nine thousand only) as notice waiver amount.LCA No. 1024/16 4
(In total Rs. 3,68,500/- (Rupees three lakh sixty eight thousand five hundred only) alongwith interest).
2.1 On the basis of the averments in the claim, notice was issued to the managements. The AR for the management Nos. 1, 2, 3 and 5 appeared and filed written statement. None appeared for the management No. 4, therefore, vide order dated 06.03.2017, Ld. Predecessor proceeded exparte against the management No. 4.
REPLY OF THE MANAGEMENT
3. In it's reply the managements took the stand that no employer-employee relationship exists between the claimant and managements and as such the present application under Section 33 (C) (2) of the Industrial Disputes Act, 1947 seeking computation of amount towards earned wages, bonus, leave wages, overtime and arrears of minimum wages is not maintainable.
3.1 It was further stated in the reply that the claimant is a family friend and because of this relationship with (particularly Mr. Vinod Khurana, the brother of Sh. Vineet Khurana and Sh. Vimal Khurana) the claimant used to visit managements' office on regular basis and used to sit at the godown of the managements at Shahadara to carry out his personal works. It is also the case of the managements that LCA No. 1024/16 5 sometimes the claimant used to help the managements in conducting some of management's work in lieu of occupying its godown.
3.2 Further according to the reply, this application is not maintainable as per Section 7 Schedule-II of the I.D. Act as the matters regarding the adjudication of bonus do not fall within the jurisdiction of labour courts. It was also stated that the application is not maintainable in view of the fact that the Labour Court has no jurisdiction to determine the amount sought to be computed because the amount claimed is not based on any existing right, award, settlement as stipulated under Section 33 (C) (2) of Industrial Disputes Act, 1947 and no enquiry can be held to determine the new right of the claimant in absence of prior determination of the disputed questions.
3.3 In rejoinder to the Written Statement of the management, the claimant denied the averments of the management as made in its written statement and reaffirmed the contents of his application filed under Section 33 C (2) of Industrial Disputes Act, 1947.
ISSUES FRAMED
4. On the basis of the pleadings, the following issues were framed by the Ld. Predecessor on 09.10.2017.
LCA No. 1024/16 6i) Whether the petition is not maintainable due to lack of jurisdiction in view of preliminary objection No.4 of the W/S of the managements? OPW
ii) Whether the workman is entitled to the amount claimed for in the petition? OPW
iii) Relief.
After the issues were framed, the matter was listed for workman's evidence.
WORKMAN'S EVIDENCE
5. The workman appeared in the witness box as the sole witness and filed his evidence by way of affidavit. In this affidavit, the averments of the claim, as mentioned above were reiterated. The workman relied upon the following documents:-
i) Ex. CW1/1 - This claim/application bearing his signatures at point A.
ii) Ex. CW1/2 - Demand notice.
iii) Ex. CW1/3 - Reply to demand notice.
iv) Ex. CW1/4 to Ex. CW1/10 - Affidavits of persons
working in the vicinity of his workplace in support of his claim (affidavits of Mr. Vinod Khurana, Mr. Raj Bahadur, Mr. Praveen Kumar, Mr. Devi Charan, Mr. Dinesh Gupta, Mr. Ramesh Chand, Mr. Santosh Kumar1).
1 Although none of these affidavits were exhibited neither were these witnesses examined by the claimant at the time of his evidence.
LCA No. 1024/16 7v) Mark CW1/11 (collectively) - Copies of pages of the daily book maintained by this witness regarding the work done by the claimant.
5.1 The claimant was cross-examined at length by the AR of the management Nos. 1, 2, 3 and 5. No other witness was examined and upon request, the evidence of the claimant was closed and the matter was listed for management evidence.
MANAGEMENT'S EVIDENCE
6. Sh. Vineet Khurana and Sh. Vimal Khurana appeared in the witness box as the two witnesses of the managements.
6.1 Sh. Vineet Khurana deposed in his testimony that he is the Proprietor of Khurana Enterprises and is well aware of the facts of this matter. He tendered his evidence by way of affidavit, Ex. MW1/A which bore his signatures at point A and B and relied upon the following documents:-
i) Ex. MW1/1 (Colly.) - Copy of reply dated 16.06.2016 of the management to the Legal notice dated 01.06.2016 of the workman alongwith postal receipt regarding sending of the reply.
6.2 Thereafter, Sh. Vimal Khurana appeared in the witness box as the second witness of the management. He deposed that he is the LCA No. 1024/16 8 Proprietor of Khurana Calender Company and tendered his evidence by way of affidavit Ex. MW2/A which bore his signatures at point A and B. 6.3 Both these management witnesses were not cross-examined by the workman despite opportunity. No other witness was examined and upon request, the evidence of the management was closed. The matter was then listed for final arguments.
ARGUMENTS
7. The AR of the management advanced lengthy arguments on 05.06.2023 which were heard by this court. No arguments were advanced by AR for the workman before this court despite three opportunities given on 05.06.2023, 08.06.2023 and today. This matter was pending in this court since almost seven years, accordingly the matter is being decided on the basis of available record and arguments of the AR of the managements, without further delay.
ISSUE-WISE FINDINGS
8. I have carefully gone through the record. Issue wise findings on the basis of the material on record are as recorded under:-
ISSUE No.1:-
Whether the petition is not maintainable due to lack of jurisdiction in view of preliminary LCA No. 1024/16 9 objection No.4 of the W/S of the managements? OPW 8.1 The maintainability of the present application u/s. 33 C(2) of the Act has been challenged by the management in the written statement itself. It has been submitted on behalf of the management that the claimant has never been its employee and no employer-
employee relationship ever existed between the claimant and the management and as such until and unless this disputed question of relationship is adjudicated in a separate claim under s. 2A or s. 10 (4) (A) of the ID Act and a finding is returned in such proceedings, no claim of money/benefit is maintainable by the claimant against management under proceedings under section 33C(2) of the Industrial Dispute Act, 1947.
8.2 Section 33C is reproduced below for proper appreciation of the applicable law:-
"Section 33C : Recovery of Money Due from an Employer -
(1) x x x (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 (within a period not exceeding three months).
(3) x x x (4) x x x LCA No. 1024/16 10 (5) x x x"
In Chief Mining Engineer, East India Coal Co. Ltd. v. Rameshwar & ors., (1968) 1 SCR 140 Hon'ble Supreme Court highlighted the ambit and scope of section 33C(2) of the Industrial Disputes Act and made following pertinent observations:-
"It is clear that the right 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 an industrial workman and his employer..."
This decision was thereafter followed by Hon'ble Apex Court again in Central Inland Water Transport Corpn. Ltd. v. Workmen (1974) 4 SCC 696. The relevant extract from the judgment is reproduced herein below :-
"12. It is now well-settled that a proceeding under section 33C (2) is a proceeding, generally, in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to a workman from his employer, or if the workman is entitled to any benefit which is capable of being computed in terms of money, the Labour Court proceeds to compute the benefit in terms of money. This calculation or computation follows upon an existing right to the money or benefit, in view of its being previously adjudged, or, otherwise, duly provided for. In Chief Mining Engineer, East India Coal Co. Ltd. v. Rameshwar & ors., it was reiterated that proceedings under 33C (2) are analogous to execution proceedings and the Labour Court called upon to compute in terms of money the benefit claimed by workmen is in such cases in the Position of an executing court. It was also reiterated that the right 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 LCA No. 1024/16 11 in relation to the relationship between an industrial workman and his employer."
"13. In a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of (i) the plaintiff's right to relief; (ii) the corresponding liability of the defendant, including, whether the defendant is, at all, liable or not; and (iii) the extent of the defendant's liability, if any. The working out of such liability with a view to give relief is generally regarded as the function of an execution proceeding. Determination No. (iii) referred to above, that is to say, the extent of the defendant's liability may sometimes be left over for determination in execution proceedings. But that is not the case with the determinations under heads
(i) and (ii). They are normally regarded as the functions of a suit and not an execution proceeding. Since a proceeding under section 33C (2) is in the nature of an execution proceeding it should follow that an investigation of the nature of determinations (i) and (ii) above is, normally, outside its scope. It is true that in a proceeding under section 33C (2), as in an execution proceeding, it may be necessary to determine the identity of the person by whom or against whom the claim is made if there is a challenge on that score. But that is merely 'Incidental'. To call determinations (i) and (ii) 'Incidental' to an execution proceeding would be a perversion, because execution proceedings in which the extent of liability is worked out are just consequential upon the determinations (i) and (ii) and represent the last stage in a process leading to final relief. Therefore, when a claim is made before the Labour Court under section 33C (2) that court must clearly understand the limitations under which it is to function. It cannot arrogate to itself the functions-say of an Industrial Tribunal which alone is entitled to make adjudications in the nature of determinations (i) and (ii) referred to above, or proceed to compute the benefit by dubbing the former as 'Incidental' to its main business of computation. In such cases, determinations (i) and (ii) are not 'Incidental' to the computation. The computation itself is consequential upon and subsidiary to determinations (i) and (ii) as the last stage in the process which commenced with a reference to the Industrial Tribunal. It was, therefore, held in State LCA No. 1024/16 12 Bank of Bikaner and Jaipur v. R. L. Khandelwal that a workman cannot put forward a claim in an application under section 33C (2) in respect of a matter which is not based on an existing right and which can be appropriately the subject matter of an industrial dispute which requires a reference under Section 10 of the Act."
The law pronounced in the above said judgment has since been consistently followed by the Hon'ble Supreme Court in later decisions. In Municipal Corporation Of Delhi vs Ganesh Razak, 1995 SCC (1) 235 the legal principal on the issue was summed up as follows :-
" ..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 33C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under section 33C(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 requires 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."
8.3 Applying the above discussed law to the present facts, this court is of the view that, this application is not maintainable in this court. The claimant has claimed that he worked as an employee of management from February, 1993 continuously till April 2016. On the other hand, the Management claimed that it never had any kind of LCA No. 1024/16 13 employer-employee relationship with the claimant and thus had no liability to pay any amount to the claimant. In the witness box also both the parties remained firm on their stand regarding the relationship.
8.4 Thus, from the pleadings and the evidence there is apparent dispute on the issue of relationship between the claimant and the management as well as entitlement of the claimant to receive any amount from the management. There is nothing on record to suggest that prior to filing of the present application, the claimant has ever raised any Industrial Dispute against the management to get the disputed question of relationship as well as entitlement to the benefits claimed by him adjudicated by the competent authority in appropriate proceedings. The claimant has failed to show any pre-existing right as defined in Section 33 (c) 2 of the I.D. Act, 1947 as admittedly there is no earlier adjudication in form of award or settlement or recognition by the employer to the benefits claimed by him. In view of the well settled position of law discussed above, this court doesn't have jurisdiction to first decide the claimant's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under section 33C(2) of the Act. Therefore, it is held that the present application/ petition filed by the claimant u/s 33-C(2) of the ID Act, 1947 is not maintainable. This issue is accordingly decided against the claimant and in favour of the management.
LCA No. 1024/16 14ISSUE No. 2:-
Whether the workman is entitled to the amount claimed for in the petition? OPW 8.5 In view of the findings given in issue no.1 above, the claimant is not found entitled to any relief in this petition.
Accordingly, this issue is decided against the claimant and in favour of the management.
RELIEF
9. In view of the findings given in issue nos.1 and 2, the claimant is not entitled to any relief against the management.
10. Considering the findings given in issues above, the application filed by the claimant under Section 33-C (2) of the Industrial Disputes Act, 1947 is accordingly dismissed.
11. File be consigned to the record room after due compliance.
Digitally signedAnnounced in the Open Court MONIKA by MONIKA SAROHA today on 07.07.2023. SAROHA Date: 2023.07.07 16:15:32 +0530 MONIKA SAROHA Presiding Officer, Labour Court -2 Rouse Avenue Courts, New Delhi.
LCA No. 1024/16