Delhi District Court
V. M. Puri S/O. Late Sh. M. R. Puri vs M/S. Hindustan Insecticides Ltd on 9 December, 2015
V. M. Puri Vs. M/s. Hindustan Insecticides Ltd. LCA No. 38/14
BEFORE LABOUR COURT - XI: KARKARDOOMA COURTS: DELHI
PRESIDING OFFICER: Mr. ANAND SWAROOP AGGARWAL
(Delhi Higher Judicial Service)
(Additional District & Sessions Judge, Delhi)
LABOUR COURT APPLICATION (LCA) NO. 38/14
UNIQUE CASE IDENTIFICATION NO. 02402C0125592013
In the matter of:
V. M. Puri s/o. Late Sh. M. R. Puri,
R/o. 130A, Humayunpur, New Delhi.
.....Workman / Applicant
Vs.
M/s. Hindustan Insecticides Ltd.
Core6, 2nd Floor, CGO Complex,
7, Lodhi Road, New Delhi 110 003 ....Management / Respondent
Date of Institution : 11.04.2013 Date of reserving for Decision : 16.11.2015 Date of Decision : 09.12.2015
APPLICATION U/S. 33 C (2) OF THE INDUSTRIAL DISPUTES ACT, 1947 FOR RECOVERY OF SUM OF Rs.2,17,880/ (sic) DECISION
1. CASE OF THE WORKMAN AS PLEADED IN LABOUR COURT APPLICATION
(i) The applicant was working with the respondent and during harness one subordinate of the applicant namely Mr. P. C. Talwar was promoted to the post of Establishment Assistant (Special Grade) in super - session of the applicant, as such the applicant approached the Managing Director of the respondent but his representation was not considered by the management of respondent. Thereafter Page 1 of 25 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/09.12.2015 V. M. Puri Vs. M/s. Hindustan Insecticides Ltd. LCA No. 38/14 the applicant approached the Conciliation Officer under Section 12 (4) of the Industrial Disputes Act, 1947 and on the basis of the report submitted by the Conciliation Officer the following reference was made to the ld. Industrial TribunalII: "Whether promotion of Shri P. C. Talwar as Establishment Assistant (Special Grade) in supersession of Shri V. M. Puri is illegal and/or unjustified and, if so, whether Shri V. K. Puri should be promoted to the said post and what directions are necessary in this respect?"
(ii) The applicant filed his statement of claim which was duly replied by the management. Thereafter, the evidence was led by the parties and the ld. Industrial Tribunal after appreciating the facts and material on record passed an award dated 30.11.1987 in favour of the applicant and the operative portion of as detailed in para. 67 of award is as under: "(i) The management is hereby directed to promote Shri Puri to the post of Special Grade Establishment w.e.f. 19.02.1977 notionally by creating promotion post till 31.01.1979 when he stood promoted to higher post. He will get all the benefits of this proforma promotion i.e. financial difference of high pay with allowances of proforma post and the post held by him and counting of this service period for all other purpose of seniority experience for promotion etc. according.
(ii) From 01.02.1979 onward Shri Puri will be given option to retain and continue with post of Superintendent (Accounts) of availing posting against the proforma post of Asstt. Establishment Special Grade upto when the said post was upgraded and redesignated as Personal Supervisor and thereafter against the said upgraded proforma post until he is actually posted to the same post on vacation by Shri Talwar by operation and implementation of this Award with all connected benefits of such posting including the counting of such notional posting experience as actual experience for further promotion if any in the line.
(iii) It is further clarified and directed that in case Shri Puri avails later part of the option under the (ii) directions, he shall retain the emoluments he Page 2 of 25 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/09.12.2015 V. M. Puri Vs. M/s. Hindustan Insecticides Ltd. LCA No. 38/14 has received or will receive by virtue of holding the post of Accounts Superintendent being on higher side than the post of Estt. Assistant Special Grade without any deductions by way of adjustment etc. under the terms of this Award for any earlier or subsequent emoluments he is found entitled of course during this period he will not get separate any salary as Asstt.
Establishment Special Grade by way of double payment for two posts."
3. The respondent assailed the said award dated 30.11.1987 by way of Civil Writ Petition No. 1626/1998 in the High Court of Delhi. The Hon'ble High Court vide order dated 02.12.1988 passed in CW No. 1626/88 directed the respondent to pay to the applicant the financial difference of high pay the grievances of permanent post and the post held by him. Pursuant thereto a sum of Rs.14,539.95 was given to the applicant vide a cheque dated 05.09.1989 on the basis of some calculation made by the respondent. Since the said order was an interim order as such the applicant accepted the said sum of Rs.14,539.95.
4. The Hon'ble High Court vide order dated 13.09.2004 disposed of the aforesaid writ petition being infructuous while nobody appeared on behalf of the applicant on the said date.
5. The applicant after having come to know about the disposal of the aforesaid writ petition immediately filed application for revival of the aforesaid writ petition.
Since the writ petition was disposed of and the award dated 30.11.1989 attained finality. The applicant filed an application in 2006 before the Hon'ble High Court of Delhi alongwith the calculation of the amount which was due and payable by the respondent in terms of the award dated 30.11.1987. The said application was dismissed by the Hon'ble High Court of Delhi vide order dated 21.12.2006.
However there was no determination of the quantum of amount to be paid by the Page 3 of 25 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/09.12.2015 V. M. Puri Vs. M/s. Hindustan Insecticides Ltd. LCA No. 38/14 respondent to the applicant.
6. The said order dated 21.12.2006 was impugned by the applicant by way of Letters Patent Appeal being LPA No. 259/2007. After hearing the parties the Hon'ble Division Bench of the Hon'ble High Court of Delhi has been pleased to dispose of the said LPA vide order dated 01.03.2013 and the operative portion of the said order is as under: "In the event there is a dispute with respect to computation of money payable under an award, the appellant has the right to approach the Labour Court under Section 33 (c) (2) by filing an appropriate application for computation of the amount payable to him in terms of the Award. Admittedly, the appellant has not availed that remedy.
In view of the above, we are not inclined to entertain this appeal and accordingly. The appeal is rejected. The appeal shall not stand in the way of the appellant to obtain his remedy for enforcement of the award by filing appropriate application and the respondent is also equally entitled to defend such application, if any, filed. Counsel for the appellant submitted that such an application will be filed within four weeks from today. The said statement is recorded. The application, if filed, shall be decided without reference of the orders passed in the writ petition on its own merit."
7. In terms of order dated 01.03.2013, the applicant has been given liberty by the Hon'ble Division Bench of the High Court of Delhi to the applicant to file an appropriate application under the provisions of the Industrial Disputes Act, 1947 for seeking the recovery of the amount due and payable by the management in terms of award dated 30.11.1987. Hence, the present application.
8. The award dated 30.11.1987 has already attained finality and the respondent is liable to pay to the applicant a sum of Rs.4,13,820/ as per following details: Page 4 of 25 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/09.12.2015 V. M. Puri Vs. M/s. Hindustan Insecticides Ltd. LCA No. 38/14 ANNEXURE - A 3 Name of official / Name of Difference Period Total amount salary drawn by person respondent No.2 promoted in supersession of respondent No.2 / salary drawn (1) (2) (3) (4) (5) 1 Shri V. M. Puri Total Mr. Kara, Dy. Rs. 297/ 1.1.1995 to Rs.11,888.00 emoluments Manager, per month 1.5.1988 Rs.2,728/ per month Personal (40 months) Rs.3,025/ per month 2 Shri V. M. Puri Mr. Rama Rs.222/ 1.6.1988 to Rs.13,320/ Rs.4,063/ per month Krishana per month. 1.5.1993 Personal (60 months).
Manager Rs.4,285/ per month 3 Arrears on account Rs.3000/ 1.1.1992 to Rs.51,000/.
of revision of New p.m. 1.5.1993
Pay Scales (17 months).
4 Shri V. M. Puri Dy. General Rs.2,950/ 1.6.1993 to Rs.1,41,600/
Rs.6,650/ per month Manager p.m. 31.5.1997 (48
Rs.9,600/ per months) upto
month the date of
retirement
Total Rs.2,17,800.00
Total Rs. 2,17,800.00
Interest @ 10% per annum w.e.f. 31.5.1997 to 28.2.2006 Rs. 2,17,800.00 (sic)
Grand Total Rs. 4,13,820.00
Rupees four lacs thirteen thousands eight hundred and twenty) (not inclusive of leave encashment / P.F. Difference / production incentive / expenses on engagement of counsel).
Page 5 of 25 (ANAND SWAROOP AGGARWAL)POLC - XI/KKD/DELHI/09.12.2015 V. M. Puri Vs. M/s. Hindustan Insecticides Ltd. LCA No. 38/14 With these averments workman prayed to compute and determine the payment of money in terms award dated 30.11.1987 and direct the respondent to pay the same to the applicant.
2. STAND TAKEN BY MANAGEMENT IN WRITTEN STATEMENT OF DEFENCE Management in the written statement of defence pleaded that averments of workman regarding reference having being made to Industrial Tribunal - II and passing of award dated 30.11.1987 needed no reply being matter(s) of record.
Management denied the averments made by workman regarding order dated 02.12.1988 passed by Hon'ble High Court in C. W. No. 1626/88 and submitted that vide order dated 02.12.1988 the Hon'ble High Court was pleased to pass an order to the effect that the respondent will pay to the applicant the financial difference of high pay with allowances of proforma post and post held by him as directed by the Tribunal in para. 67 of the award. In compliance with the order dated 02.12.1988 of the Hon'ble High Court, the respondent on 05.09.1989 paid a sum of Rs.14,539.95 vide D. D. No. 019814 alongwith statement of account showing details on the basis of which that amount was arrived at. The said details are as under: "HINDUSTAN INSECTICIDES LTD.
NEW DELHI DETAILS OF ARREARS IN RESPECT OF SHRI V. M. PURI FROM 31.1.1979 to 31.8.1989 for Rs.14,539.95 PERIOD B. P. D.A. C.C.A. H.R.A. DIFFERENCE TOTAL P.F. NETT 31.1.79 845.00 378.90 50.70 187.50 to 775.00 352.70 46.50 187.50 31.7.79 70.00 26.00 4.20 100.40 605.65 46.00 Page 6 of 25 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/09.12.2015 V. M. Puri Vs. M/s. Hindustan Insecticides Ltd. LCA No. 38/14 1.8.79 to 845.00 404.30 50.70 187.50 31.10.79 775.00 375.90 46.50 187.50 70.00 28.40 4.20 102.60 307.80 24.00 1.11.79 845.00 429.60 50.70 187.50 to 775.00 399.20 46.50 187.50 30.11.79 70.00 30.40 4.20 104.60 104.60 8.00 1.12.79 965.00 349.30 57.90 187.50 to 920.00 281.30 55.20 187.50 30.1.80 45.00 68.00 2.70 115.70 227.65 18.00 31.1.80 1010.00 349.30 60.60 187.50 to 965.00 281.30 57.90 187.50 30.1.81 45.00 68.00 2.70 115.70 1388.40 108.00 31.1.81 1055.00 349.30 63.30 187.50 to 1010.00 281.30 60.60 187.50 30.1.82 45.00 68.00 2.70 115.70 1388.40 108.00 31.1.82 1100.00 349.30 66.00 187.50 to 1055.00 281.30 63.30 187.50 31.7.82 45.00 68.00 2.70 115.70 697.95 54.00 1.8.82 to 1540.00 47.30 75.00 375.50 31.12.82 1365.00 49.70 75.00 375.50 175.00 2.00 173.70 865.00 69.00 1.1.83 to 1600.00 47.70 75.00 375.50 31.12.83 1420.00 49.70 75.00 375.50 180.00 2.00 178.00 2136.00 171.00 1.1.84 to 1660.00 47.70 75.00 375.50 31.12.84 1540.00 49.70 75.00 375.00 120.00 2.00 118.00 1416.00 113.00 1.1.85 to 1720.00 47.70 75.00 375.00 31.12.85 1600.00 49.70 75.00 375.00 120.00 2.00 118.00 1416.00 113.00 1.1.86 to 1780.00 47.70 100.00 548.30 31.12.86 1660.00 49.70 100.00 512.90 120.00 2.00 35.40 153.40 1840.80 113.00 1.1.87 to 1780.00 47.70 100.00 548.30 31.12.87 1720.00 49.70 100.00 530.90 60.00 2.00 17.40 75.40 904.80 56.00 Page 7 of 25 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/09.12.2015 V. M. Puri Vs. M/s. Hindustan Insecticides Ltd. LCA No. 38/14 1.1.88 to 1840.00 47.70 100.00 566.30 24.8.88 1780.00 49.70 100.00 548.90 60.00 2.00 17.40 75.40 586.15 43.00 25.8.88 1940.00 47.70 100.00 596.30 to 1870.00 49.70 100.00 575.90 31.12.88 70.00 2.00 20.40 88.40 373.55 22.00 1.1.89 to 2010.00 47.70 100.00 617.30 31.8.89 1870.00 49.70 100.00 575.90 140.00 2.00 41.40 179.40 1435.20 88.00 15693.95 1154.00 NET DIFFERENCE = Rs.14539.95"
Management denied averment of applicant that the order dated 02.12.1988 was an interim order inasmuch as in the said order it was specifically mentioned that such payment will be made subject to the result of the writ petition and if the petitioner succeeds the question whether the petitioner would be entitled to interest will be decided at the time of hearing on the main petition. Management further pleaded that said payment alongwith the statement of account was accepted by the counsel for the applicant and the applicant, thereafter, never raised any disputes on the statement of account on the basis of which the said amount of Rs.14,539.95 was received by him and, thereafter, vide order dated 05.09.1989 Hon'ble High Court was pleased to dispose off the application as the necessary payment had already been paid to the applicant. Management admitted that the applicant after having come to know about the disposal of writ petition filed application under Order 9 Rule 13 CPC for setting aside the order dated 13.09.2004. However, management denied the averment of applicant to the effect that award dated 30.11.1987 attained finality. Management submitted that vide said order (i.e. order dated 13.09.2004) it was held that now the applicant is not entitled to any further relief in terms of impugned award. Management also pleaded that the claim of the applicant to Page 8 of 25 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/09.12.2015 V. M. Puri Vs. M/s. Hindustan Insecticides Ltd. LCA No. 38/14 recover an amount of Rs.4,13,820/, out of which Rs.2,17,800/ is an amount of interest calculated @ 10% by the applicant, is liable to be rejected as the applicant is guilty of misusing the Hon'ble Court for unlawful monetary and other gain by demonstrating illegal provisions of the Industrial Disputes Act, 1947. As pleaded by management, the Industrial Disputes Act, 1947 clearly states that there is no legal provision for claiming interest on the amount recoverable, thus, the applicant is misguiding the Hon'ble Court by his such acts and wasting the precious time of the Court. As per management, the applicant is not entitled to any claim whatsoever.
3. REJOINDER In the rejoinder workman denied the case as pleaded by management in WS and reaffirmed the averments made in the application.
4. On 01.08.2014, this Court passed the following order: "01.08.2014 Present: Ms. Richa Aggarwal, proxy counsel for Ms. Bhanita, adv.
for workman.
Mr. Aditya Narain Singh, adv. for the management.
Ld. counsel for management has filed details of amount of Rs.14,539.95 paid to workman vide order dated 05.09.1989 passed by Hon'ble Delhi High Court. Copy supplied. Ld. proxy counsel for workman submits that no further documents are to be filed by workman. Heard on issues.
At the outset, it is noted there appears to be clerical mistake on Page No. 3 of Calculation Sheet attached by workman alongwith application under Section 33 C (2) of Industrial Disputes Act, 1947 as Annexure A3 is mentioned in the Para No. 8 of the application. However, the said document mentions itself as Annexure - WR2/1. For identification purposes Court has now marked the said Calculation Sheet as Annexure - A3. On Page No. 3 total of Rs.2,17,800.00 and Rs. 2,17,800.00 has been shown as Rs.4,13,820.00 which is apparently not correct. Be that as it may.Page 9 of 25 (ANAND SWAROOP AGGARWAL)
POLC - XI/KKD/DELHI/09.12.2015 V. M. Puri Vs. M/s. Hindustan Insecticides Ltd. LCA No. 38/14 On the basis of material available on judicial file following issues are framed:
(i) Whether workman is entitled to recover a sum of Rs.
2,17,880.00 in terms of averments made in application under Section 33 C (2) of Industrial Disputes Act, 1947 as per Calculation Sheet Annexure - A3? OPW
(ii) Whether workman is entitled to interest on amount, if any, even due and payable to the workman by the management? If so, to what date and what period? OPW
(iii) Relief.
Ld. counsel for management submits that following issues may also kindly be framed:
(i) Whether the workman is liable to estopped from filing present Labour Court Application in as much as workman accepted the payment of Rs.14,539.95 vide order dated 05.09.1989 passed by Hon'ble Delhi High Court?
(ii) Whether the claim filed by the workman is barred by the limitation?
Heard ld. counsel for management in this regard. To my mind, in the facts and circumstances of this case issue no. (i) as pressed hereinabove need not be framed in as much as in the order dated 05.09.1989 passed by Hon'ble Delhi High Court, it is specifically mentioned that an amount of Rs.14,539.95 was accepted without prejudice, rights and contentions raised in the petition. Also as per law no limitation is prescribed by any statutory provisions for filing of application under section 33 C (2) of the Industrial Disputes Act, 1947. Even otherwise, keeping in view the litigation within the parties and also the Order dated 01.03.2013 passed by Hon'ble Delhi High Court in LPA No. 259/2007 between the same parties, this application cannot be said to be time barred under any circumstance. Hence, issues as pressed by ld. counsel for management need not be framed. Put up on 08.09.2014 for WE."
5. EVIDENCE Workman appeared in witness box as WW1 V. M. Puri and tendered his examination in chief vide evidence affidavit Ex.WW1/A and relied upon documents namely Ex. P1 - Award dated 30.11.1987; Ex. P2 - Order dated 16.02.2006 passed by Hon'ble Ms. Justice Gita Mittal, Hon'ble High Court of Page 10 of 25 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/09.12.2015 V. M. Puri Vs. M/s. Hindustan Insecticides Ltd. LCA No. 38/14 Delhi; Ex. P3 - Order dated 01.03.2013 passed by Hon'ble The Chief Justice and Hon'ble Mr. Justice V. K. Jain, Hon'ble High Court of Delhi in LPA No. 259/2007 and Ex. P4 - Statement of claim showing the amount due from management on account of non - implementation of the award of Industrial Tribunal dated 30.11.1987. WE was closed on 30.01.2015.
Management examined MW1 Mr. Probir Kumar Ghosh, Assistant Administrative Officer and tendered his examination - in - chief vide affidavit Ex.
MW1/A. Management relied upon documents namely Ex.MW1/1 - Details of arrears in respect of Sh. V M Puri from 01.01.1979 to 31.08.1989; Mark - A -
True typed copy of the order dated 02.12.1988 passed in C. W. No. 1626/88; Mark
- B - True typed copy of the order dated 05.09.1989 passed in C. W. No. 1626/88;
Mark - C - True typed copy of the order dated 19.02.1990; Mark - D True typed copy of the order dated 13.09.2004 passed in C. W. No. 1626/88 and Mark -
X - General Power of Attorney dated 20.06.2007. Vide order dated 16.11.2015 ld.
counsel for management showed the original of document Mark - X to the Court and it was ordered that the said document marked as Mark - X may be read as an exhibited document. ME was closed on 07.10.2015 by Mr. Arvind Kumar, Adv.
for management.
6. ARGUMENTS I have heard Ms. Bhanita Patowary, Adv. for workman and Mr. Arvind Kumar, Adv. for management. Ld. counsel for the workman filed written synopsis as well and relied upon case laws reported as (i) National Textile Corporation Vs. Vijay Kumar Aggarwal (2002) IV LLJ 909 (Bombay); (ii) M. D. Oswal Hosiery Vs. D. D. Gupta & Ors. 54 (1994) DLT 1; (iii) State of Kerala Vs. E. K. Bhaskaran Pillai AIR 2007 SC 2645 and (iv) Jasbir Singh Vs. Union of India 2004 (115) DLT 351.
Page 11 of 25 (ANAND SWAROOP AGGARWAL)POLC - XI/KKD/DELHI/09.12.2015 V. M. Puri Vs. M/s. Hindustan Insecticides Ltd. LCA No. 38/14
7. My ISSUEWISE findings are as under: ISSUE No. 1 Whether workman is entitled to recover a sum of Rs.2,17,880.00 in terms of averments made in application under Section 33 C (2) of Industrial Disputes Act, 1947 as per Calculation Sheet Annexure - A3? OPW Order dated 13.09.2004 (Mark - D) passed in W.P. (C) No. 1626/1988 filed by herein against the award dated 30.11.1987 (Ex. P1) reads as under : "13.09.2004 Present : Mr. Rajendra Dhawan with Ms. Shefali Dhawan for the petitioner None for the Respondent W. P. (C) No. 1626/1988 The Petitioner is aggrieved by the Award dated 30 th November, 1987 in ID No. 156/1977 (Old No.) 30/1984 (New No.) The reference that was made on 29th November 1987 was as follows: "Whether promotion of Shri P. C. Talwar as Establishment Assistant (Spl. Grad) in suppression of Shri V. M. Puri is legal and/or unjustified and if so, whether Shri V. M. Puri should be promoted to the said post and what directions are necessary in this respect?"
Pursuant to the Award, Respondent No.2 Mr. V.M. Puri has been paid a sum of Rs.14,539.95 sometime in 1989.
It is stated by learned counsel for the petitioner that Mr. Puri as well as Mr. Talwar who is also concerned with the reference, have both superannuated. He says that his client is not keen to take back the amount given to Mr. Puri after such along period of time and also in view of the fact that the dispute is more than 25 years old. I think it is a very fair view taken by the Petitioner.
Under the circumstances, since the issues raised in the Award is now academic, it is not necessary for me to determine the correctness otherwise of the answer to the reference. It is, however, made clear the interpretation given to the Rules of the Petitioner by the learned Tribunal will not be binding upon the Petitioner nor will it be treated precedent.
There is not appearance on behalf of Mr. Puri or on behalf of Mr. Talwar. It is made clear that since the matter is dismissed & infructuous, they will not be entitled to any further relief in terms of impugned Award.Page 12 of 25 (ANAND SWAROOP AGGARWAL)
POLC - XI/KKD/DELHI/09.12.2015 V. M. Puri Vs. M/s. Hindustan Insecticides Ltd. LCA No. 38/14 Writ petition is, accordingly, disposed of."
Order dated 01.03.2013 (Ex.P3) passed in LPA No.259/2007 filed as Shri V. M. Puri Vs. Hindustan Insecticides Ltd. And Ors reads as under: "O R D E R 01.03.2013 The appeal, at the instance of the workman, is directed against the order in the writ petition wherein and whereby the claim of the appellant as on 28th February, 2006 for entitlement of sum of Rs.4,13,820/ was rejected. At the instance of the appellant, a reference was made with regard to the promotion as Establishment Assistant (Specific Grade) and he obtained the following award:
(i) The management is hereby directed to promote Shri Puri to the post of Special Grade Establishment w.e.f. 19.2.77 notionally by creating promotion post will 31.1.79 when he stood promoted to higher post. He will get all the benefits of this proforma promotion i.e. financial difference of high pay with allowances of proforma post and the post held by him and counting of this service period for all other purposes of seniority experience for promotion etc. accordingly.
(ii) From 1.2.79 onward Shri Puri will be given option to retain and continue with post of Superintendent (Accounts) of availing posting against the proforma post of Asstt. Establishment Special Grade upto when the said post was upgraded and redesignated as Personnel Supervisor and thereafter against the said upgraded proforma post until he is actually posted to the same post on vacation by Shri Talwar by operation and implementation of this Award with all connected benefits of such posting including the counting of such notional posting experience as actual experience for further promotion if any in the line.
(iii) It is further clarified and directed that in case Shri Puri avails later part of the option under the (ii) directions, he shall retain the emoluments he has received or will receive by virtue of holding the post of Accounts Superintendent being on higher side than the post of Estt. Assistant Special Grade without any deductions by way of adjustment etc. under the terms of this Award for any earlier or subsequent emoluments he is found entitled of course during this period he will not Page 13 of 25 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/09.12.2015 V. M. Puri Vs. M/s. Hindustan Insecticides Ltd. LCA No. 38/14 get separate any salary as Asstt. Establishment Special Grade by way of double payment for two posts."
The award was questioned by the Management in the writ petition which was rejected. It appears as an interim arrangement, a sum of Rs. 14,539/ was paid to the workman appellant which he has received. At the time when the writ petition was taken up for hearing, the appellant claimed the said sum of Rs.4,13,820/ as an amount payable as per the award, as on 28th February, 2006. This contention has been rejected and for that reason, the appellant has made the present grievance, In our opinion, the question of entitlement in the principal sum / amount of award cannot be determined by this Court. In the event there is a dispute with respect to computation of money payable under an award, the appellant has the right to approach the Labour Court under Section 33 (c) (2) by filing an appropriate application for computation of the amount payable to him in terms of the award. Admittedly, the appellant has not availed that remedy.
In view of the above, we are not inclined to entertain this appeal and accordingly, the appeal is rejected. The appeal shall not stand in the way of the appellant to obtain his remedy for enforcement of the award by filing appropriate application and the respondent is also equally entitled to defend such application, if any, filed. Counsel for the appellant submitted that such an application will be filed within four weeks from today. The said statement is recorded. The application, if filed, shall be decided without reference of the orders passed in the writ petition on its own merit."
The last line of Order Ex.P3 reads that, "........The application, if filed, shall be decided without reference of the orders passed in the writ petition on its own merit.". Thus, it is held / observed that this application under section 33 C (2) of the Industrial Dispute Act, 1947 deserves to be decided by this Court without reference to orders passed in the writ petition on its own merits and reliance by management on order dated 13.09.2004 (MarkD) is misconceived / not to any benefit to the management in view of order dated 01.03.2013 (Ex.P3) passed in LPA No. 259/2007.
Details of claim(s) made by workman are as under: Page 14 of 25 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/09.12.2015 V. M. Puri Vs. M/s. Hindustan Insecticides Ltd. LCA No. 38/14 ANNEXURE - A 3 Name of official / Name of Difference Period Total amount salary drawn by person respondent No.2 promoted in supersession of respondent No.2 / salary drawn (1) (2) (3) (4) (5) 1 Shri V. M. Puri Mr. Kara, Dy. Rs. 297/ 1.1.1995 to Rs.11,888.00 Total emoluments Manager, per month 1.5.1988 Rs.2,728/ per month Personal (40 months) Rs.3,025/ per month 2 Shri V. M. Puri Mr. Rama Rs.222/ 1.6.1988 to Rs.13,320/ Rs.4,063/ per month Krishana per month. 1.5.1993 Personal (60 months).
Manager Rs.4,285/ per month 3 Arrears on account Rs.3000/ 1.1.1992 to Rs.51,000/.
of revision of New p.m. 1.5.1993
Pay Scales (17 months).
4 Shri V. M. Puri Dy. General Rs.2,950/ 1.6.1993 to Rs.1,41,600/
Rs.6,650/ per month Manager p.m. 31.5.1997 (48
Rs.9,600/ per months) upto
month the date of
retirement
Total Rs.2,17,800.00
Total Rs. 2,17,800.00
Interest @ 10% per annum w.e.f. 31.5.1997 to 28.2.2006 Rs. 2,17,800.00 (sic)
Grand Total Rs. 4,13,820.00
Page 15 of 25 (ANAND SWAROOP AGGARWAL)
POLC - XI/KKD/DELHI/09.12.2015
V. M. Puri Vs. M/s. Hindustan Insecticides Ltd. LCA No. 38/14
Rupees four lacs thirteen thousands eight hundred and twenty) (not inclusive of leave encashment / P.F. Difference / production incentive / expenses on engagement of counsel).
Workman is claiming principle sum of Rs.2,17,800/ and interest to the tune of Rs.2,17,800/ @10% per annum w.e.f. 31.05.1997 to 28.02.2006.
Workman again repeated these details in Ex.P4 with the only difference that in Ex.P4 workman claimed interest @10% per annum w.e.f. 31.05.1997 to 28.02.2006 to the tune of Rs.1,90,575/, making total of the claims made by workman as Rs.4,08,375/.
THE WORKMAN IS CLAIMING HIS ABOVE ENTITLEMENT(S) ON THE BASIS OF AWARD EX.P1 operative portion of which reads as under: "(i) The management is hereby directed to promote Shri Puri to the post of Special Grade Establishment w.e.f. 19.02.1977 notionally by creating promotion post till 31.01.1979 when he stood promoted to higher post. He will get all the benefits of this proforma promotion i.e. financial difference of high pay with allowances of proforma post and the post held by him and counting of this service period for all other purpose of seniority experience for promotion etc. according.
(ii) From 01.02.1979 onward Shri Puri will be given option to retain and continue with post of Superintendent (Accounts) of availing posting against the proforma post of Asstt. Establishment Special Grade upto when the said post was upgraded and redesignated as Personal Supervisor and thereafter against the said upgraded proforma post until he is actually posted to the same post on vacation by Shri Talwar by operation and implementation of this Award with all connected benefits of such posting including the counting of such notional posting experience as actual experience for further promotion if any in the line.
(iii) It is further clarified and directed that in case Shri Puri avails later part of the option under the (ii) directions, he shall retain the emoluments he has received or will receive by virtue of holding the post of Accounts Superintendent being on higher side than the post of Estt. Assistant Special Grade without any deductions by way of adjustment etc. under the terms of Page 16 of 25 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/09.12.2015 V. M. Puri Vs. M/s. Hindustan Insecticides Ltd. LCA No. 38/14 this Award for any earlier or subsequent emoluments he is found entitled of course during this period he will not get separate any salary as Asstt. Establishment Special Grade by way of double payment for two posts."
Workman in his cross examination deposed as under: "I joined the management company on 25.09.1958 as a LDC and I retired on 31.05.1997 while working as Labour Welfare Officer. During my service tenure, for the first time I was promoted as UDC but year of promotion I do not remember; then I was promoted as Assistant in the year 1969; thereafter I was promoted to Superintendent in the accounts department in the year 1979 and lastly I was promoted as Labour Welfare Officer but year of promotion I do not remember. The present matter u/s. 33 C (2) of the Industrial Disputes Act, 1947 has been filed with respect to the post of Establishment Assistant (Special Grade) to which Mr. P.C.Talwar was promoted on 19.02.1977. There was no other person except Mr. P.C.Talwar who was promoted by withholding my promotion. It is correct to suggest that on 31.01.1979 I was promoted as Superintendent in Accounts department.
It is correct to suggest that post of Superintendent is senior to post of Establishment Assistant...."
Admittedly, workman stood promoted to Superintendent in Accounts department on 31.01.1979, which post was senior to the post of Establishment Assistant to which workman was directed to be promoted w.e.f. 19.02.1977 till 31.01.1979 by notionally creating the promotion post. Workman was entitled to get all the benefits of this proforma promotion i.e. financial difference of high pay with allowances of proforma post and the post held by him. Obviously this financial difference pertained to the period from 19.02.1977 till 31.01.1979 only but details in Annexure - A3 / Ex.P4 not pertain to this period.
A careful perusal of the details given in Annexure - A3 / Ex.P4 reveals that workman is, interalia, claiming, the differences in the salary drawn by workman Mr. V. M. Puri and the persons namely Mr. Kara, Dy. Manager, Personal; Mr. Rama Krishna, Personal Manager and Dy. General Manager Page 17 of 25 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/09.12.2015 V. M. Puri Vs. M/s. Hindustan Insecticides Ltd. LCA No. 38/14 allegedly promoted in supersession of the workman herein. In the Labour Court Application there are no pleadings qua the promotion of Mr. Kara or Mr. Rama Krishna but in the written synopsis filed by ld. counsel for workman after addressing final arguments in this case is mentioned that, ".... in 1985 the post of Deputy Manager personal was vacant. Instead of promoting the applicant being eligible candidate for the said post, Mr. Kara was appointed directly from outside.
Again in 1988 post of personal Manager was vacant and instead of promoting the applicant being eligible candidate for the said post, Mr Rama Krishna was appointed directly from outside. Both of them have resigned after 23 years of their appointment and despite the existing vacancy at the relevant post, the applicant was deprived of his right to be promoted. [calculation filed by workman].....".
At the outset it is observed that mentioning of certain facts for the first time in the written synopsis filed after the conclusion of final arguments does not serve any purpose and cannot be considered by the Court. Be that as it may. It is observed that merely because the award Ex. P1 mentioned that workman will get all the benefits of this proforma promotion i.e. financial difference of high pay with allowances of proforma post and the post held by him and counting of this service period for all other purposes of seniority experience for promotion etc. according, does not mean that workman's entitlement for promotions in future stood established. The relief granted to the workman was only to the extent that the period from 19.02.1977 till 31.01.1979 during / for which workman was given notional promotion shall be counted for all purposes of seniority experience for promotion etc. When so understood it cannot be said that workman had a existing / well established right as per award Ex.P1 to claim his appointment / promotion in Page 18 of 25 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/09.12.2015 V. M. Puri Vs. M/s. Hindustan Insecticides Ltd. LCA No. 38/14 place of Mr. Kara or Mr. Rama Krishna or as Deputy General Manager or to claim wages at par with Mr. Kara or Mr. Rama Krishna or as Deputy General Manager.
Workman has filed this application under section 33 C (2) of the Industrial Dispute Act, 1947. At this stage it would be pertinent to refer to case law titled as Delhi Transport Corporation Vs. Ved Prakash MANU / DE / 0143 / 2015 wherein it has been observed as under: "8. The pivotal issue, that is the scope of powers of the Labour Court under Section 33C(2) of the ID Act needs careful consideration. Section 33C(2) of the ID Act reads as under: "33C. Recovery of money due from an employer (1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of [Chapter VA or Chapter VB] the workman himself or any other person authorised by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue:
Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer:
Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period.
(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:] Page 19 of 25 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/09.12.2015 V. M. Puri Vs. M/s. Hindustan Insecticides Ltd. LCA No. 38/14 [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.]"
9. The law relating to Section 33C(2) of the ID Act is no more res integra in view of the law laid down by the Hon‟ble Supreme Court of India in various judgments. The crux of the provision is that the workman can file an application under 33C(2) of ID Act only when he is „entitled to receive´ money claimed by him. His entitlement to receive money is referrable to a preexisting right which would be established if it has been earlier adjudicated upon or provided for, that is, recognised by the employer. The recognition can be either in the form of settlement or as per the service conditions.
10. The proceedings under Section 33C(2) of the ID Act are in the nature of executive proceedings in which the Labour Court calculates the amount of money due to workman from his employer or if the workman is entitled to any benefit which is capable of being computed in terms of money. However, the right of money which is sought to be calculated or 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 relationship between the industrial workman and his employer.
11. In "Central Inland Water Transport Corporation Ltd. vs. The Workmen & Anr.', (1974) 4 SCC 696, it was observed as under: "12. It is now wellsettled 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. Thiscalculation 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. [AIR 1968 SC 218 : (1968) 1 SCR 140 : 1968 (1) Lab LJ 6] it was reiterated that proceedings under Section 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 Page 20 of 25 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/09.12.2015 V. M. Puri Vs. M/s. Hindustan Insecticides Ltd. LCA No. 38/14 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."
12. It is only when the entitlement has been earlier adjudicated or recognized by the employer and thereafter for the purpose of its implementation or enforcement thereof some ambiguity requires interpretation, that interpretation is treated as incidental to the Labour Court‟s powers under Section 33C(2) of the ID Act like that of the executing court‟s power to interpret the decree for the purpose of its execution. However, if the entitlement to receive money is in dispute, an application under Section 33C(2) of ID Act will not be maintainable and the appropriate course would be to seek a reference under Section 10 of the ID Act.
13. The Apex Court in 'Municipal Corporation of Delhi vs. Ganesh Razak & Anr.', (1995) 1 SCC 235, held as under: "12. The High Court has referred to some of these decisions but missed the true import thereof. The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement for 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 33 C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution."
14. Where a dispute between the workman and the management arises regarding a claim for relief, it involves an investigation directed to the determination of (i) workman's right to relief; (ii) the corresponding liability of the management, including whether it is at all liable or not; and lastly
(iii), the extent of liability of the management, if any. Since the proceedings Page 21 of 25 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/09.12.2015 V. M. Puri Vs. M/s. Hindustan Insecticides Ltd. LCA No. 38/14 under Section 33C(2) of the ID Act are in the nature of execution proceedings, it is only the determination under head (iii) i.e., the extent of liability of the management that falls under its scope along with the matters „incidental‟ to such determination. However, the determination under heads (i) and (ii) are normally regarded as the function of a suit and not an execution proceedings. They can also not be called as „incidental‟ to the execution proceedings because the extent of liability worked out in execution proceedings are consequent upon determination of (i) and (ii) above and represent the last stage in the process leading to final relief.
15. The Hon‟ble Supreme Court of India in Central Inland Water Transport Corporation Ltd. (supra) took a similar view and it was held: "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 Page 22 of 25 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/09.12.2015 V. M. Puri Vs. M/s. Hindustan Insecticides Ltd. LCA No. 38/14 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 [1968 (1) Lab LJ 589 : (196768) 3 FJR 462 : (1968) 38 Com Cas 400] that a workman cannot put forward a claim in an application under Section 33 C(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."
In these proceedings under section 33 C (2) of the Industrial Dispute Act, 1947 this Court cannot adjudicate the entitlement, as such, of the workman for his appointment / promotion at the post which were held by Mr. Kara or Mr. Rama Krishna or the post of Deputy General Manager. Even at the cost of repetition it is observed that the award Ex. P1 by itself did not create such a right in the workman to claim promotion in future or salary differences as claimed by workman.
Workman has also claimed a sum of Rs.51,000/ @ Rs.3000/ per month as arrears on account of revision of new pay scales. First of all it cannot be said that such a right, by itself, of the workman is coming out of the specific terms of award Ex.P1. Even otherwise workman has not even pleaded as to what pay scales he was already getting and what were the new pay scales after the revision of pay Page 23 of 25 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/09.12.2015 V. M. Puri Vs. M/s. Hindustan Insecticides Ltd. LCA No. 38/14 scales so as to entitle the workman to receive Rs.3000/ per month from the management from the period from 01.01.1992 to 01.05.1993. Workman could very well have atleast pleaded the pay scales which he was getting and revised pay scales but workman has not even done so. It is also pertinent to note that period of the claims made on account of salary differences of the workman and that of Mr. Rama Krishna is also covered in that of workman and Mr. Kara. And partly the period regarding which claims have been made on account of salary differences in the salary of workman and that of Deputy General Manager is also covered in the period for which salary differences have been claimed by the workman qua Mr. Kara.
In my considered opinion, workman is not entitled to any of the claims as made by him in Annexure - A3 or Ex.P4 on the basis of award Ex.P1. None of case laws relied upon by the ld. counsel for workman has no application in the facts and circumstances of this case. Issue no.1 is accordingly decided against the workman.
ISSUE No.2 Whether workman is entitled to interest on amount, if any, even due and payable to the workman by the management? If so, to what date and what period? OPW In view of my findings on Issue no.1 the question of awarding interest in favour of workman does not arise. Even otherwise there is no provisions, as such, in the Industrial Dispute Act, 1947 authorising the Labour Court to award interest on its own on the amount, if any, found due and payable by the management to workman.
ISSUE No. 3 : Relief.
In view of my above findings, workman is held to be entitled to no relief.
Page 24 of 25 (ANAND SWAROOP AGGARWAL)POLC - XI/KKD/DELHI/09.12.2015 V. M. Puri Vs. M/s. Hindustan Insecticides Ltd. LCA No. 38/14
8. Parties to bear their own costs.
9. A copy of this decision be sent to Office of the concerned Deputy Labour Commissioner for further necessary action in terms of section 33 C (4) of the Industrial Disputes Act, 1947. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 09.12.2015 (ANAND SWAROOP AGGARWAL) POLCXI: Karkardooma Courts: Delhi* Page 25 of 25 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/09.12.2015