Delhi District Court
Through vs M/S Trivedi & Sons on 10 December, 2021
Shri Rajiv Ranjan Vs. M/s Trivedi & Sons
LC No. 55/19
IN THE COURT OF SHRI TARUN YOGESH
PRESIDING OFFICER: LABOUR COURT-08
ROUSE AVENUE DISTRICT COURTS: NEW DELHI
LC NO.55/19
CNR No. DLCT13- 001032-2019
In the matter of:
Shri Rajiv Ranjan
S/o Shri A.L. Shah
R/o B-12/201, SLF, Ved Vihar,
Ankur Vihar, Ghaziabad-201102
Uttar Pradesh.
Through:
Shri Markandey Shukla
Secretary, Jagriti Labour Union
(Regd. No. 6854)
5/511, Sangam Vihar,
Wazirabad, Delhi-110084
... Workman
Versus
M/s Trivedi & Sons
Through Director
1/284, Sultan Singh Building
Kashmiri Gate, Delhi-110006
...Management
Date of Institution of the case : 15.02.2019
Date of passing the Award : 10.12.2021
Page No. 1 of 9
Shri Rajiv Ranjan Vs. M/s Trivedi & Sons
LC No. 55/19
AWARD
1.Applicant Shri Rajiv Ranjan has filed application under Section 33C(2) of I.D. Act, 1947 for directing management to pay Rs.9,37,393/- along with interest and cost.
2. As averred by claimant, he had been working with M/s Trivedi & Sons as 'Computer Operator' and his last drawn wage was Rs.9,000/-. It is averred that legal benefits including appointment letter, attendance card, leave book, pay-slip, yearly and casual leave, overtime, bonus, minimum wage, ESI, PF, etc. were not provided by management despite repeated requests and his services were eventually terminated on 31.07.2018 without notice pay, retrenchment compensation and clearing outstanding dues in violation of Section 25F of I.D. Act, 1947.
3. Demand notice dated 15.11.2018 seeking reinstatement in service with back wages was replied by management raising false and frivolous pleas of part-time job, advance Rs.10,000/- and application under Section 33C(2) of I.D. Act was thereafter filed by claimant seeking a sum of Rs.9,37,393/- towards arrears of earned wages, overtime and difference of minimum wage.
4. M/s Trivedi & Sons has filed written statement disputing employer-employee relation by claiming monthly retainment as applicant had offered his services for four hours only from 12:00 p.m. to 4:00 p.m. four days in a week from Monday till Thursday. Management, in addition, has also referred to various judgments for contending that power of Labour Court under Section 33C(2) of I.D. Act extends to interpretation of award or settlement and jurisdiction Page No. 2 of 9 Shri Rajiv Ranjan Vs. M/s Trivedi & Sons LC No. 55/19 of the Court does not extend to deciding entitlement of the workman.
5. Following issues were settled on 05.07.2019 after rejoinder and completion of pleadings:
i. Whether the workman was a part time employee of the management even the workman worked only for four hours daily in four days a week to cover in the definition of Section 2(s) of I.D.Act? ii. Whether the workman had abandoned the job in the July 2018 after he got full time job or service of the workman has been terminated illegally and unjustifiably by the management? .. OPW iii. Relief.
6. Following additional issue w.r.t. jurisdiction of Labour Court under Section 33C(2) of I.D. Act was thereafter framed on 03.02.2020 upon application filed by management:
"Whether application/plaint filed by the workman is not maintainable u/s 33C(2) of Industrial Dispute Act for want of prior adjudication or settlement of claim. ...OPM"
7. Matter continued to be listed for arguments on preliminary issue till judicial file was received in this Court and application under Section 36 of I.D. Act for restraining management from availing service of legal practitioner was filed by workman on 20.03.2021. Arguments were addressed but application was later on dismissed as withdrawn on the basis of statement of AR for workman.
8. Shri Markandey Shukla for workman and Shri Jitesh Pandey for management have addressed their submissions upon additional Page No. 3 of 9 Shri Rajiv Ranjan Vs. M/s Trivedi & Sons LC No. 55/19 issue. AR for management, in addition, has also adverted to judgments of Hon'ble Supreme Court of India titled (i) Central Inland Water Transport Corporation Ltd. Vs. The Workmen & Anr. (1974) SCC 696; (ii) Municipal Corporation of Delhi VS. Ganesh Razak & Anr. (1995) 1 SCC 235 referred in written statement and relied upon judgments titled (iii) HSBC Ltd. Vs. Anju Bala Gupta & Ors. MANU/DE/2227/2013 of Hon'ble High Court of Delhi and (iv) U.P. State Road Transport Corporation Vs. State of U.P. & Ors. MANU/UP/0234/2002 of Hon'ble High Court of Allahabad for seeking dismissal of application under Section 33C(2) of I.D. Act.
9. Shri Markandey Shukla for workman, per contra, submits that judgments cited by AR for management are not applicable as disputed facts w.r.t. employer-employee relation and arrears of wage, overtime and difference of minimum wage are required to be adjudicated by holding trial.
10. I have perused application and reply meticulously and considered their rival submissions. Section 33C(2) of the Industrial Dispute Act, 1947 reads as under:
"33C. Recovery of money due from an
employer :
(1) xxxxxxxxx
(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 Page No. 4 of 9 Shri Rajiv Ranjan Vs. M/s Trivedi & Sons LC No. 55/19 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:
Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit."
11. It is well settled law that jurisdiction of Labour Court under Section 33C(2) of the Industrial Dispute Acts, 1947 is akin to that of an executing court and Labour Court under Section 33C(2) is not empowered to act as original court adjudicating upon entitlement of the workman to the money which do not stand adjudicated a priori.
12. The scope and ambit of Section 33C(2) of I.D. Act, 1947 was examined by Hon'ble Supreme Court of India in Chief Mining Engineer, East India Coal Co. Ltd. Vs. Rameshwar (1968) 1 SCR 140 which was thereafter followed by Hon'ble Supreme Court of India in Central Inland Water Transport Corporation Ltd. Vs. Workman & Anr. (1974) 4 SCC 696.
13. Para 12 and 13 of the later judgment of Hon'ble Apex Court is reproduced below:
"12 It is now well-settled that a proceeding under section 33(C)(2) is a proceeding, generally, in the nature of an execution Page No. 5 of 9 Shri Rajiv Ranjan Vs. M/s Trivedi & Sons LC No. 55/19 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 section 33(C)(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 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 Page No. 6 of 9 Shri Rajiv Ranjan Vs. M/s Trivedi & Sons LC No. 55/19 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 33(C)(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) Page No. 7 of 9 Shri Rajiv Ranjan Vs. M/s Trivedi & Sons LC No. 55/19 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 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."
14. Aforesaid principle of law has been uniformly followed in cases titled (i) D. Krishnan & Anr. Vs. Special Officer, Vellor Co- operative Supermill & Anr. (2008) 7 SCC 22; (ii) Municipal Page No. 8 of 9 Shri Rajiv Ranjan Vs. M/s Trivedi & Sons LC No. 55/19 Corporation of Delhi Vs. Ganesh Razak & Anr. (1995) 1 SCC 235;
(iii) State Bank of India Vs. Ram Chandra Dubey & Ors. (2001) 1 SCC 73; (iv) State of U.P. and Anr. Vs. Brijpal Singh (2005) 8 SCC 58; (v) Delhi Transport Corporation Vs. D.D. Gupta Presiding Officer 1996 SCC On Line 298 AND (vi) Vice Chancellor Vs. Dal Chand 2018 LLR.
15. Since claimant's right to recover Rs.9,37,393/- towards arrears of wage, overtime, difference of minimum wage and corresponding liability of management cannot be decided in the present proceedings so preliminary issue settled on 03.02.2020 is decided in favour of management.
16. Application under Section 33C(2) of I.D. Act, 1947 seeking recovery of outstanding dues along with interest and cost is accordingly dismissed.
17. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT
DATED: 10.12.2021 Digitally signed
TARUN by TARUN
YOGESH
YOGESH Date: 2021.12.10
15:02:21 +0530
(TARUN YOGESH)
PRESIDING OFFICER - LABOUR COURT-08
ROUSE AVENUE COURTS: NEW DELHI
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