Delhi District Court
Between vs Presiding Officer on 5 May, 2007
:1:
IN THE COURT OF SH. HARISH DUDANI: PRESIDING OFFICER,
LABOUR COURT NO. XVII, KARKARDOOMA COURTS, DELHI
LCA NO. 19/2006
BETWEEN
The Claimant/workman
Sh. Sanjay Tiwari S/o Sh. Gangaseva Tiwari
C/o Iron and Steel Mazdoor Morcha Delhi (Regd.)
B-370, Bada Bagh, Near Hans Cinema, Azadpur,
Delhi- 110033.
AND
M/s Shri Krishna Rolling Mills
B-72/4, Wazirpur Industrial Area,
Delhi- 110052.
Proprietor: Sh. Surender Jindal, Sh. Subhash Goyal and Sh. Mahavir Prasad
ORDER
1. This is an application U/s 33C(2) of the I.D. Act, 1947 filed by the claimant/workman on 01.04.2002. Briefly stated facts relevant for disposal of the application are as under:
2. In the application under Section 33C(2) of the I. D. Act the claimant has stated that he has been employed with the management for the last 2 years i.e. since 01.08.1999 as Mistry-II and his last drawn salary was Rs.1800/- per month. The management was not providing the legal facilities i.e. minimum wages, appointment letter and overtime wages although the workman was made to work for more than 12 hours everyday and on demand of the legal facilities from the management by the claimant, the management started remaining annoyed. On 06.10.2000, claimant through his union made complaint to the Labour Department and the Labour Inspector visited the :2: management but the management did not allow the claimant to come before the Labour Inspector and the management obtained signatures of claimant on blank papers, vouchers etc. and terminated the services of claimant on 02.08.2001 and dues of the claimant were not paid. The claimant sent notice of demand dt. 07.08.2001 to the management but the management did not send any reply to the same. It is stated that management is liable to pay a sum of Rs.5673/- on account of earned wages from 01.06.2001 to 02.08.2001 @ Rs.2745/- per month, a sum of Rs.2745/- as leave wages for 2 years @ Rs. 2745/- per month, as sum of Rs.5490/- on account of bonus for the years 1999-00, 2000-01, as sum of Rs.66063/- on account of overtime wages from 01.08.1999 to 02.08.2001 @ 4 hours per day, a sum of Rs.4264/- on account of difference of wages from 01.08.1999 to 31.01.2000, a sum of Rs.4710/- on account of difference of wages from 01.02.2000 to 31.07.2000 and a sum of Rs.4450/- on account of difference of wages from 01.08.2000 to 30.11.2000 i.e. in total the management is liable to pay a sum of Rs.93395/- to claimant alongwith interest and cost.
3. The notice of application was issued to the management and the management has filed WS and has contested the same. In the WS management has stated that the present claim has been filed by the claimant with sole purpose of blackmailing the management and there is not cause of action for filing the present application. It is stated that the present application has been filed in the month of March 2002 after filing of another complaint under Section 20(2) of the Minimum Wages Act before the Authority of Sh. S. :3: P. Singh, Deputy Labour Commissioner, Nimri Colony, Ashok Vihar, Delhi and the said complaint was duly contested by the management but the workman has withdrawn the said complaint on 01.04.2003. It is stated that workman had himself resigned in the month of August 2001. It is stated that the claimant had worked with the management as a Helper from January 2001 to August 2001 only and he was getting salary of Rs. 2419/- per month as per provisions of The Minimum Wages Act. It is denied that the claimant has been employed with the management for the last 2 years or since 01.08.1999 as alleged. It is stated that the claimant left the job of management vide resignation letter dt. 31.08.2001. It is also denied that the management was not providing the legal facilities and on demand of same services of claimant were dismissed as alleged. It is denied that the signatures of claimant were obtained by the management on blank papers or that the management terminated the services of claimant w.e.f. 02.08.2001. It is also denied that the salary has not been paid to claimant from 01.06.2001. It is stated that the claimant has received all his full and final settlement dues from the management. It is stated that claimant is not entitled to amount claimed.
4. Claimant has filed rejoinder to the WS of management. In the rejoinder claimant has reiterated the contents of application under Section 33C(2) of the ID Act and has controverted the allegations of management as stated in the WS.
5. From the pleadings of parties following issues were framed by my ld. :4: predecessor on 16.07.2003:
1. Whether application of workman is not maintainable in view of preliminary objections? OPM.
2. To what amount, if any, the workman is entitled to get from the mgnt.
3. Relief.
6. To prove his case claimant examined himself as WW1 and Sh. Ranjeet Mishra as WW2 and WE was closed on 29.01.2005. As per order dt. 11.04.2005 management has been proceeded ex-parte. The management has not examined any witness.
7. I have heard AR for claimant and carefully perused record. My findings on specific issues are as under:
ISSUE NO. 1
8. By way of present application under Section 33C(2) of the I. D. Act the claimant has claimed earned wages from 01.06.2001 to 02.08.2001, leave wages for 2 years, arrears of minimum wages for 2 years and overtime wages. In the WS management has taken the plea that the claimant has worked with the management only from January 2001 to August 2001 at the salary of Rs.2419/- per month and the claimant left the job of his own after submitting resignation letter dt. 31.08.2001. The management has taken the plea that the earned wages of workman from 01.06.2001 have been paid. The management has also taken the plea that the claimant had filed a claim before the authority under Minimum Wages Act but the claimant has withdrawn the said claim hence the present application under Section 33C(2) :5: of the I. D. Act is not maintainable. The management has not examined any witness in order to prove that how in view of the filing of application under the Minimum Wages Act the present application under Section 33C(2) of the I. D. Act is not maintainable as by way of present application the claimant has not only claimed arrears of wages but he has claimed other benefits also.
9. In Jeet Lal Sharma vs. Presiding Officer, Labour Court-IV and Anr., II-2001(1) All India Services Law Journal 237 it was held that the point which is emphasised is that entitlement to receive money i.e. pre-existing right can be based on (i) adjudication (2) settlement (3) service conditions. If the right to get a particular benefit is there, the application under Section 33- C(2) would be maintainable and jurisdiction of Labour Court will not be barred merely because employer has denied the same.
10. By way of present application under Section 33C(2) of the I. D. Act the claimant has also claimed arrears of wages w.e.f. 01.06.2001 to 02.08.2001. The management has admitted that during the said period for which arrears of wages have been claimed, claimant was in the employment of management. However, the management has taken the plea that the claimant had left the services of management in the month of August 2001 after submitting resignation letter dt. 31.08.2001. As management has admitted that workman was in the service of management from 01.06.2001 to 02.08.2001 i.e. the period for which the earned wages have been claimed by way of present application, hence the application is maintainable under Section 33C(2) of the I. D. Act. This issue stands answered accordingly. :6: ISSUE NO. 2
11. By way of present application under Section 33C(2) of the I. D. Act the claimant has claimed a sum of Rs.5673/- as earned wages from 01.06.2001 to 02.08.2001 @ Rs.2745/- per month as minimum wages. In the application under Section 33C(2) of the I. D. Act in the affidavit Ex. WW1/A claimant has stated that he was employed with the management as Mistry-II but in the written statement management has stated that the claimant was employed with the management as Helper from January 2001 to August 2001 and he was getting Rs.2419/- per month as salary. Apart from filing his own affidavit and affidavit of WW2 Sh. Ranjeet Mishra, the claimant has not adduced any other evidence to prove that he was employed as Mistry with the management. The claimant has filed copy of demand notice dt. 07.08.2001 Ex. WW1/1 and as per said demand notice the same has been issued on behalf of WW2 Sh. Ranjeet Mishra also. The workman has also filed on record Ex. WW2/1 which is notice dt. 11.01.2002 issued by Labour Inspector to the management and the same has been issued in respect of workman Sh. Ranjeet Mishra also. Hence as per Ex. WW1/1 and Ex. WW2/1 Sh. Ranjeet Mishra (WW2) is also in litigation with the management. In the circumstances the affidavit of Sh. Ranjeet Mishra/WW2 is of no help to the workman in the absence of any other evidence on record. The management has admitted the employment of claimant with the management as Helper w.e.f. January 2001 to August 2001 @ salary of Rs.2419/- per month. Although the management has taken the plea that the claimant has taken all :7: wages from the management but the management has not produced any record in order to prove that the wages from 01.06.2001 to 02.08.2001 have been paid to the claimant. In the circumstances, the claimant shall be entitled to wages from 01.06.2001 to 02.08.2001 @ 2419/- per month (the rate of salary as admitted by the management in the written statement).
12. By way of present application the claimant has also claimed a sum of Rs.2745/- on account of leave wages for 2 years @ Rs.2745/- per month. Although the claimant has claimed a sum of Rs.2745/- on account of leave wages @ 15 days per annum for the last 2 years but the claimant has nowhere stated that during the said period he had not taken any leave and on that account he is entitled to leave wages for 30 days from the management. The claimant has also not proved that either he had not taken leave during the last two years or that if he had taken leave then on which dates he had taken the leave. It is also to be noted that the claimant has taken the plea that he was in the employment of management since 01.08.1999 but the management has stated in the written statement that claimant was in the employment of management since January 2001. The management has not admitted the employment of claimant since 01.08.1999 as stated by the claimant. Apart from filing affidavit of WW2 Sh. Ranjeet Mishra, the claimant has not adduced any other evidence on record to prove his employment with the management prior to January 2001. Hence, the claimant is not entitled to amount of Rs.2745/- as claimed on account of leave wages.
13. By way of present application under Section 33C(2) of the I. D. Act the :8: claimant has also claimed a sum of Rs.5490/- on account of bonus for the year 1999-00 and 2000-01 @ Rs.2745/- per month. The claimant has neither stated in the statement of claim nor in his affidavit Ex. WW1/A that the management had employed 20 or more workmen and the provisions of The Payment of Bonus Act 1965 were applicable to the management. The claimant has failed to prove that he is entitled to amount of Rs.5490/- as claimed on account of bonus.
14. By way of present application the claimant has also claimed a sum of Rs.66063/- on account of overtime wages from 01.08.1999 to 02.8.2001. In Union of India and another v. Kunkuben (Dead) by LRs. And Ors. etc. etc. 2006 LLR 494 Hon'ble Supreme Court held that a claim for overtime by a workman, under section 33C(2) of the Industrial Disputes Act will not be tenable in view of the settled law that such a claim is to be adjudicated on the basis of the existing right of the workman, hence the Labour Court misdirected itself in allowing the claim of the workman which was erroneously upheld by the learned Single Judge and the Division Bench hence the same is liable to be set aside. In the application under Section 33C(2) of the I. D. Act claimant has only stated that he is entitled to a sum of Rs.66063/- on account of overtime wages from 01.08.1999 to 02.08.2001 @ 4 hours per day but in his affidavit Ex. WW1/A claimant has stated that he was being made to work for 12 hours. In the affidavit Ex. WW1/A the claimant has nowhere stated as to on which dates he had rendered overtime work and which official of the management had ordered him to do overtime work. The :9: claimant has not filed any document on record to show that he has rendered overtime work for the management. In Special Officer, Vellore Co- operative Sugar Mills, Ammundy Post, Vellore vs. Presiding Officer, Labour Court, Vellore and Ors., 2005 LLR 653 it was held that a claim for overtime, made by the employees, will not be tenable when they have failed to prove as to who has authorised them to work beyond working hours and the reliance upon the time-card and its punching will not be sustainable since it only reflects the entry and exit and not working of overtime. Hence, the claim not being based on existing right could not be allowed by the Labour Court and the Learned Single Judge erred in upholding the said order. It was further held that the burden of proof of having worked for overtime lied upon the workmen and they have failed to prove as to who has authorized them to work overtime and as such their claim, in the absence of proof, will not be tenable more so when the employer has categorically stated that the claimants were never asked to work overtime. Hence the claimant is not entitled the amount as claimed on account of overtime wages.
15. By way of present application the claimant has also claimed arrears of wages from 01.08.1999 to 31.01.2000 considering his salary as Rs.2514/- per month during the said period, arrears of wages from 01.02.2000 to 31.07.2000 considering his salary as Rs.2585/- per month and arrears of wages from 01.08.2000 to 30.11.2000 considering his salary to be 2690/- per month. In the written statement the management has denied that the claimant has worked with the management prior to January 2001. Apart from filing his :10: own affidavit Ex. WW1/A and affidavit of Sh. Ranjeet Mishra Ex. WW2/A the claimant has not adduced any evidence to prove that he was in the employment of management prior to January 2001. The plea of the claimant is that he was employed with the management as Mistry and he was getting wages of Rs.1800/- per month but in the WS management has stated that claimant was employed as Helper and he was getting wages of Rs.2419/- per month. The claimant has not adduced any evidence in order to prove that he was employed as Mistry with the management and not as Helper and he was getting wages of Rs.1800/- per month and not Rs.2419/- as stated by management. The management has not admitted the period of employment as claimed by the claimant, the management has also not admitted the post and the rate of wages as stated by the claimant.
16. In Tara and Ors. v. Director Social Welfare and Ors. 1998 II LLJ 632 Hon'ble Supreme Court held :
"This is obvious from the fact that the status and nature of employment of the appellants is itself disputed and unless there is a prior adjudication on merits of the status which is the foundation for making the claim for wages at the specified rates, the question of moving an application under Section 33 C(2) for computation of the wages does not arise. We find that the Labour Court has recorded some findings which may be relevant for the disputed status of the appellants as Anganwadi workers/helpers :11: even though it has rightly reached the conclusion that the applications do not lie under Section 33 C(2) of the Act. It is clear that the question of maintainability of the applications under Section 33 C(2) was required to be determined at the threshold and the question of examining the appellants' claim on merits relating to their status could have been gone into only thereafter if the applications were held to be maintainable under Section 33 C(2). In view of the conclusion rightly reached by the Labour Court that the applications were not maintainable under Section 33 C(2), its other findings relating to the status and nature of employment of the Anganwadi workers/helpers were wholly uncalled for. All such findings are, therefore, not to be construed as deciding any point relating to the status of the appellants.
17. In Commissioner, Coimbatore Municipal Corporation v. Presiding Officer, Labour Court & Ors., 1994 I-L.L.J. 535, it was held that proceedings U/s 33C(2) of the I.D. Act are in the nature of execution proceedings and in the absence of adjudication of rights, money benefit cannot be computed and non-existing right cannot be adjudged in Section 33C(2) proceedings.
18. Hence for deciding the entitlement of claimant for difference of wages :12: from 01.08.1999 to 30.11.2000 this court has to firstly decide whether the claimant was in the employment of management prior to January 2001 and whether the claimant was working as Mistry with the management and whether the claimant was being paid wages @ 1800/- per month as stated by the claimant. The claimant apart from filing his own affidavit and affidavit of Sh. Ranjeet Mishra(WW2) has not produced any other evidence to prove his entitlement regarding the arrears of wages as claimed from 01.08.1999 to 30.11.2000 and the claimant has also not proved that there has been any earlier adjudication by any forum of these claims of the claimant. In Uttar Pradesh State Road Transport Corporation vs. State of Uttar Pradesh and others, 2002 LLR 582, it was held that:
........it was only after the entitlement has been adjudicated upon or recognised by the petitioner Corporation then thereafter for the purpose of implementation or enforcement thereof, if some ambiguity remains to be interpreted then it was to be treated as incidental to be dealt by Labour Court under Section 33C(2) in same way as the Executing Court exercises its power to interpret the decree for the purpose of its execution.
19. As per decisions in Municipal Corporation of Delhi vs. Ganesh Razak and another, 1994 (68) FLR 997 and Uttar Pradesh State Road Transport Corporation vs. State of Uttar Pradesh and others (Supra) this court has jurisdiction only to implement the adjudicated or recognised right of the claimant. As the entitlement of the claimant has not been earlier adjudicated or recognised by the employer, hence the claim of the claimant :13: for arrears of wages is not maintainable under Section 33C(2) of the ID Act.
20. In view of aforesaid discussions the claimant shall be entitled to the wages from 01.06.2001 to 02.08.2001 @ 2419/- per month alongwith interest @ 6% per annum from the date of filing this application i.e. 01.04.2002 till realization of the amount. The application U/s 33C(2) of the I.D. Act stands disposed off accordingly. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT TODAY i.e. ON 05.05.2007 (HARISH DUDANI) PRESIDING OFFICER LABOUR COURT NO. XVII KARKARDOOMA COURTS, DELHI :14: LCA NO. 19/2006 05.05.2007 Present: None.
Application of the claimant/applicant under Section 33C(2) of the ID Act disposed off vide separate order. File be consigned to record room.
POLC/05.05.2007