Delhi District Court
Braham Prakash vs M/S Delhi Development Authority on 23 April, 2008
IN THE COURT OF MS. MAMTA TAYAL, POLC-I,
ROOM NO. 50, KARKARDOOMA COURTS, DELHI.
LCA No. 15/2006
BETWEEN
Braham Prakash
S/O Sh. Chunni Lal
Through Delhi State General Majdoor Union
H. No. F-235, Vijay Vihar,Phase-II,
Delhi-110085. ...... Workman
AND
M/s Delhi Development Authority
Vikas Sadan,
New Delhi -110001.
...... Management
Date of Institution : 16.02.06
Reserved for Order : 11.04.08
Date of Order : 23.04.08
ORDER
1 This is an application U/S 33 C (2) of the Industrial Dispute Act filed by the workman, Braham Prakash who was working as Security Guard against management Delhi Development Authority claiming a sum of Rs.1,76,066/- as due from the management on account of unpaid overtime allowance.
2 The facts necessary for disposal of present application as contended by the workman in brief are that the claimant as per service conditions was required to perform duty for eight hours a day but actually he was made to work for twelve hours a day i.e. from 06.03.81 to 31.12.92. No overtime allowance was ever paid to him. The workman has come forward with this application now when another employee of DDA has been granted overtime allowance by another labour court vide order dated 08.03.2004. The claimant had sent a demand notice to the management but no action has been taken. He has given a break up for his claim, which is as under:-
SN PERIOD AMOUNT(Rs.) 4 hours overtime for the year 1981 for 4930/- 11200hours @ Rs.850/- per month 4 hours overtime for the year 1982 for 5400/- 21200hours @ Rs.1200/- per month 4 hours overtime for the year 1983 for 6300/- 31200hours @ Rs.1050/- per month 4 hours overtime for the year 1984 for 6600/- 41200hours @ Rs.1100/- per month 4 hours overtime for the year 1985 for 6900/-
51150hours @ Rs.1150/- per month
! " # $ % & '
( ) * * +
SN PERIOD AMOUNT(Rs.)
4 hours overtime for the year 1986 for 6600/- 61100hours @ Rs.1200/- per month 4 hours overtime for the year 1987 for 6075/- 7900hours @ Rs.1300/- per month 4 hours overtime for the year 1988 for 8100/- 81200hours @ Rs.1350/- per month 4 hours overtime for the year 1989 for 7700/- 91100hours @ Rs.1400/- per month 4 hours overtime for the year 1990 for 9300/- 101200hours @ Rs.1550/- per month 4 hours overtime for the year 1991 for 9152/- 111100hours @ Rs.1646/- per month 4 hours overtime for the year 1992 for 11076/-
121200hours @ Rs.1846/- per month
TOTAL 88033/-
DOUBLE 1,76,066/-
3 In its reply the management contended that the
application U/S 33 C-2 is not maintainable as the claim filed by the claimant is highly belated. The claimant has filed the present claim after passing of the award in favour of Sh. Lakhan Singh on 08.03.2004. It was stated that the workman was working on daily wages. All the averments of the claimant regarding amount claimed were denied saying that the claimant was not entitled to any amount whatsoever.
4 Rejoinder was filed on behalf of claimant in which he reaffirmed all his contentions and controverted the defence raised ,
- . / 0 1 2 3 4 5 6 7 7 8 by the management.
5 On the pleadings of the parties following issues were framed by the ld. Predecessor on 31/05/2006 : -
(i) To what amount, if any, the claimant is entitled ?
6 Thereafter case was posted for evidence of the workman. The workman filed his own affidavit towards evidence while Mr. Ram Gaya Prasad, Deputy Director (Horticulture -V) of the management appeared as MW1.
7 Written final arguments were filed on behalf of workman while oral submissions were made on behalf of management. I have perused the entire records carefully and given my thoughtful consideration to the matter.
My findings on the aforesaid issue are as follows:-
ISSUE NO.1 :-
8 it is contended by ld. AR for management that the 9 : ; < = > ? @ A B C D D E functions of the court exercising jurisdiction U/s 33-C(2) of the ID Act, being akin to those of an Executing Court, the amount claimed by the workman cannot be granted by the court in the absence of any prior adjudication of the same in some other proceedings. The ld. AR for the workman has on the other hand, contended that what he is asking for are statutory entitlements and do not need any prior adjudication.
9 It is well settled that U/s 33-C(2), the court acts as an executing court and can only compute the recoganised or already adjudicated benefits in favour of the workman and cannot decide the workman's entitlement thereto. In MCD vs. Ganesh Razzaq reported as 57 ( 1995) DLT 364, the Hon'ble Supreme Court has held as follows :
Para 12: "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 recoganised by the employer and thereafter for the purpose of implementation or enforcement thereof some A F G H I J K L M N O P P Q 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."
10 The above position of law has been reiterated thereafter by the Hon'ble Supreme Court in a number of cases including 'State of UP vs Brij Pal Singh reported as (2005) 8 SCC 58. 11 Even the judgment relied upon by AR for workman reported as 'Jeet Lal Sharma vs. POLC-IV & Anr, 84 (2000) DLT 706, reiterates the same proposition of law that U/S 33-C (2) workman can file application only when he is entitled to receive money claimed by him and the entitlement refers to the existing rights which would be established if it has been earlier adjudicated upon and recoganised by the employer. If entitlement to receive money is in dispute application U/S 33-C (2) is not maintainable. It was further held that once employee accepts the entitlement as one of the service conditions, the application will be admissible. If the claim is based on accepted service conditions application is valid.
Q R S T U V W X Y Z [ \ \ ] 12 In the present case, the management has disputed the entitlement of the workman to overtime allowance. There is nothing on record placed by workman to show that as per service conditions he was entitled to receive overtime allowance. He has merely filed a copy of an office order of DDA dated 10.05.1995 which says overtime allowance will be paid to the staff who is required to perform duties for more than eight hours after obtaining prior approval for performance of extra duty from competent authority. Firstly this order is of May, 1995 whereas the workman is claiming overtime allowance for period much prior to that. Secondly, it is clearly mandated that prior approval of competent authority for performance of extra duty is a condition precedent before any overtime allowance can be paid. It is not even pleaded by the workman that any prior permission of competent authority for overtime in his case was taken. The claim as prepared also totally lacks credibility. No actual dates have been specified when the workman was allegedly asked to work for overtime. He has claimed overtime allowance for every single day of year after year starting from March, 1981 to December, 1992. But the amount ^ _ ` a b c d e f g h i i j calculated for any particular year does not match with the overtime period claimed and salary for that year. Besides this, as per workman he was made to work overtime daily since very beginning i.e. w.e.f. March, 1981 which is the date of his joining. It means he started working overtime from March, 1981 and not prior to that. However, in his application he has claimed overtime for the full year of 1981 which is contrary to the facts pleaded by him. Further he says that he worked overtime every single day of the year during every year of his service. Still the number of hours of overtime allegedly done by him are not same for every year. The entire claim is contradictory and vague. Even the amount calculated is not commensurate with the period claimed for any particular year. 13 In the recent judgment reported as Union of India vs Kunkuben (Dead)by LRs and others (2006 LLR 494), the Hon'ble Supreme Court has held Overtime Allowance cannot be claimed U/s 33-C(2) of the ID Act on the ground that the workman's entitlement to the same requires prior adjudication. 14 AR for the management has also contended that the k l m n o p q r s t u v v w claim of the workman is liable to be rejected being time barred. AR for workman pointed out that the workman was waiting for decision of labour court in a similar matter filed by another workman against DDA. When the claim of said workman was allowed by labour court-IV vide order dated 08.03.2004, the present application was filed by the workman. In my considered opinion pendency of another similar case in the court cannot be a ground for the claimant for not filing his own claim. Every case is decided on its own facts. In fact, the workman should have been more vigilant and motivated when his co-worker filed his case way back in 1993. Even otherwise there is no explanation as to why the present claim was filed more than two years after the said judgment. Admittedly, no specific limitation period is provided for an application U/S 33-c (2) under I.D Act, still the court has to see the delay in approaching the court as a stale claim as held in 'Krishi Utpadan Mandi Samiti vs. Pahal Singh 2007 LLR 579'. Same was the view expressed by Hon'ble Bombay High Court in the case of 'Union of India vs. Narayana M (2002) IVLLJ (Supp) Bom. 912'. There is no sufficient explanation in our case for the delayed claim. Besides this, it is also expedient to note here that in the case relied upon by the workman, allowed by x y z { | } ~ the other court, the management witness had admitted that the concerned workman had worked for 12 hours a day, every day during his tenure as chaukidar whereas there is no such admission in the present case. In the said case the workman had also proved in the court the copies of his attendance record but the same have not been produced or proved here.
15 AR for workman has also contended that workman moved an application for production of attendance record by the management and the same having not been produced by the management despite directions, the claim of the workman ought to be taken as proved. On perusal of records, it is revealed that the management had taken a plea that the records sought by the management for 1981-92 in the year 2007 being very old records were not available and therefore they were not produced. Even otherwise initial onus was on the workman to prove his case and only if he was able to show some cogent evidence, the burden could have shifted to the management. As discussed above, the workman in the present case has not been able to give even an iota of evidence in support of his claim.
16 For the foregoing reasons, I hereby hold that the relief sought by the workman/applicant does not fall under the domain of Section 33-C (2) of the I.D. Act and is otherwise highly belated. The application is devoid of any merit and is accordingly dismissed. File be consigned to Record Room.
Announced in the open court on (MAMTA TAYAL) 23rd April, 2008 PRESIDING OFFICER LABOUR COURT-I KARKARDOOMA COURTS DELHI