Delhi District Court
Between The vs The on 16 February, 2015
IN THE COURT OF SH. RAMESH KUMARII, PRESIDING OFFICER,
LABOUR COURT NO. IX, KARKARDOOMA COURTS: DELHI
Unique Case ID No. 02402C0142112014
LCA 36/14
Date of institution 10.05.2014
Date of Order 16.02.2015
BETWEEN THE WORKMAN
Sh. Rakesh (deceased workman), through his father/L.R. Sh. Puran S/o Sh.
Chandra Bhan, R/o H.No. G155, Jahangirpuri, Delhi.
AND
THE MANAGEMENT OF
M/s Vinayak Hospital, Plot No.2 A, Main Road, Derawal, Model Town, Delhi.
ORDER
1 Vide this order I shall dispose off the statement of claim as filed by applicant on behalf of the deceased workman under the provisions of the Industrial Disputes Act against the management.
2 Brief facts as stated by the applicant in the present claim are that the applicant is father of the deceased workman and mother of deceased workman has already been passed away and during the course of employment the deceased workman was unmarried, hence the applicant is the legal heir of the deceased workman. It is further stated that the workman had been working regularly with the above said management since 01.09.05 and worked upto May 2007 and during the course of employment the management had given threat to terminate his service, due to which the workman consumed poison in sadness, whereafter the workman LCA 36/14 1/6 died in one of hospital of Delhi but the management never asked about the workman nor paid his earned wages, overtime etc.. It is further stated that the last drawn salary of the workman was Rs.4500/ and he used to perform 8 hours duty in a day and he was also getting overtime and two year's overtime and 13 month's salary are still due against the management but the management did not make any payment despite his talking with the management on various times. It is further stated that the management also did not pay earned wages of the workman w.e.f. 01.09.05 to 25.05.07, national holidays, weekly off and overtime charges for four house per day. It is further stated that that on 23.07.07 the concerned Labour Inspector prepared his report no.3689, copy of which is enclosed alongwith statement of claim and the Labour Inspector enquired from the management on 11.06.07 about the records of its establishment and proceedings under Minimum Wages Act are pending against the management and therefore, it is prayed that an award be passed in favour of the applicant thereby directing the management to pay earned wages and overtime etc. of the deceased workman.
3 The management was served and it filed its written statement thereby taking preliminary objections that the present claim is not maintainable in law in as much as the workman has concealed the fact and stated falsehood; that the workman has settled his account fully and finally on 03.05.07, hence he is not entitled to claim any due much less than the dues of over time and earned wages from the management; that the workman has vaguely stated that he was not paid wages towards his overtime work but he has not specified as to from which date and upto which date he is entitled for overtime wages; that the workman has not specified number of hours nor quantified the amount of overtime wages, as such the present LCA 36/14 2/6 claim is not maintainable and is liable to be dismissed; that the workman was initially appointed w.e.f. 1.09.05 and he was subsequently terminated w.e.f. 24.04.06 on disciplinary grounds for commission of misconduct, whereafter the workman submitted his application dt. 2.05.06 seeking apology for his misconduct and requested the management for appointing him afresh and the management considered his application and gave him fresh appointment w.e.f. 02.05.06 on probation for six months at the consolidated wages of Rs.3500/ per month at the post of Ambulance Driver, thus the workman was on the employment of the management w.e.f. 02.05.06; that the workman again committed misconduct on various dates for which he was issued a warning letter on 31.01.07 as he misbehaved with kitchen staff and created nuisance on 29/30.01.07 while he was on night duty and the workman consumed wine and watched porn CDs; that the workman was issued warning letter on 06.04.07 for his unauthorized absence from duty on 05.04.07 and his services were terminated w.e.f. 01.05.07 and his dues were cleared on 30.05.07 by settling his account fully and finally and hence, there was no employer and employee relationship between them after termination of his services on 01.05.07. On merits it is denied that the workman was in the employment of the management w.e.f. 01.09.05 to May 2007 continuously and it is submitted that the workman was initially appointed on 01.09.05 and his services were terminated w.e.f. 24.04.06 on disciplinary grounds; that the workman was appointed afresh w.e.f. 02.05.06 and his services were again terminated w.e.f. 01.05.07. It is denied that the workman was not paid his remaining wages, overtime wages etc or that last drawn salary of the workman were Rs.4500/ per month or that the workman is entitled to overtime wages for two years and remaining earned LCA 36/14 3/6 wages for 13 months. It is further stated that Sh. Puran, father of the workman has stated in police station Jahangirpuri, that Rakesh, deceased, was jobless at the material time and he was suffering from depression and on the day of death he was drunken and he then consumed poison whereafter he died because of consumption of poison. All other facts of the statement of claim were denied by the management and it is prayed that the claim of the applicant be dismissed being not maintainable. 4 Rejoinder was not filed by the workman and thereafter, the matter was fixed for arguments on maintainability of present case.
5 Ld.AR for applicant has not advanced his arguments on maintainability despite giving various opportunities. On the other hand Ld.AR for management has advanced his arguments and submitted that all the dues have already been cleared in full and final and there is nothing due against the management. Ld.AR for management further submitted that even otherwise the present claim in the present form is not maintainable as there was no employer and employee relationship after termination of the services of the workman on 01.05.07 and he has prayed that the present claim is liable to be dismissed and may kindly be dismissed. 6 The applicant has claimed payment of two year's overtime and 13 month's salary from the management. The management stated that the workman himself left the job and his services were terminated w.e.f. 01.05.07 after settling his account in full and final and thereafter, there was no employer and employee between the workman and the management. It is, therefore, clear that nothing is admitted by the management nor there is any fact which can be computable without adjudicating the rights of the parties first particularly the relief aspect. 7 Primafacie present petition is not maintainable keeping in view the written LCA 36/14 4/6 statement of the management that there is no adjudication with respect to relationship in between the workman and the management. Once relationship itself is disputed, no claim can be maintained particularly u/s 33 C (2) of the Industrial Disputes Act and this court is taking the support of the judgment of our own Hon'ble High Court of Delhi titled as "Vishnu Kumar Mangla Vs Dhaneshwar Gupta & Sons LPA no.603/09:, wherein it was interalia held that matters which can be considered u/s 33 C(2) of the I.D Act, 1947 are such matters where the relief sought for is capable of being computed and it was interalia held that in case relationship itself is denied, it can not be held that there is any preadjudication with respect to the rights of the claimant. All the facts as stated by the workman in his claim u/s 33 C(2) of the I.D Act are disputed facts and are liable to be adjudicated upon first and as such the claim is not maintainable u/s 33 C(2) of the I.D Act.
8 In a case titled as Vishnu Kumar Mangla (Supra), the court has relied upon one judgment titled as MCD Vs Ganesh, Razak, 1995 1 SCC 235 in which it was interalia held that the claim which is not based on the existing rights is not maintainable u/s 33C (2) of the Industrial Disputes Act, 1947 as the proceedings under this section are in the nature of execution proceedings and the Labour Court has no jurisdiction to first decide the entitlement of the workman and on that basis to pay the benefits. It was further held in Vishnu Kumar Mangla (Supra) as under: "The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workman to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to the entitlement is not incidental to the benefit claim and is, therefore, clearly outside the scope of a LCA 36/14 5/6 proceeding u/s 33 C(2) of the Act. 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 recognized by the employer and thereafter for the purpose or 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".
9 Keeping in view the fact that the reliefs which are sought for by the applicant/LR of the deceased workman in the present claim are not calculable without a trial and keeping in view the proceedings under section 33 C (2) of the Industrial Disputes Act which are in the form of execution of the claim where rights ought to have been already adjudicated upon and where rights can be adjudicated upon on the basis of admission, this court is of the opinion that present claim in the present form is not maintainable and the same is hereby dismissed. 10 File be consigned to Record Room.
PRONOUNCED IN OPEN COURT (RAMESH KUMARII)
ON 16.02.2015 PRESIDING OFFICER:
LABOUR COURTIX/
EAST/KARKARDOOMA COURTS:
DELHI
LCA 36/14 6/6