Delhi District Court
Shri Deepak Saxena vs M/S Shogi Communication Ltd on 25 May, 2022
Deepak Saxena Vs. M/s Shogi Communication Ltd.
LC No. 264/17
IN THE COURT OF SHRI TARUN YOGESH
PRESIDING OFFICER: LABOUR COURT08
ROUSE AVENUE DISTRICT COURTS: NEW DELHI
LC NO.264/17
CNR No. DLCT13 0062712017
In the matter of:
Shri Deepak Saxena
S/o Shri Chand Swarup Saxena
Aged about 42 years
Through: Shri O.P. Atri, General Secretary
Samast Audhyogik Shramik Vikas Union (Regd.)
C16, Ankur Enclave, Karawal Nagar,
New Delhi110090
... Workman
Versus
M/s Shogi Communication Ltd.
34, Flat Staff Road, Civil Lines,
Delhi110054.
(Owner - Shri Anant Bindal)
...Management
Date of Institution of the case : 22.05.2017
Date of passing the Award : 25.05.2022
AWARD
1. Application under Section 33C(2) of Industrial Dispute Act,
1947 has been filed claiming Rs.33,334/ as outstanding dues against
monthly wages and overtime.
Page No. 1 of 9
Deepak Saxena Vs. M/s Shogi Communication Ltd.
LC No. 264/17
2. As averred by claimant Shri Deepak Saxena, he had been
working as 'Driver' with respondent since 01.12.2016 and his last
drawn monthly wage was Rs.20,000/. It is averred that service benefits including appointment letter, yearly leave, casual leave, bonus, overtime wages etc. were not provided to claimant despite verbal requests and his services were eventually terminated by management on 20.04.2017 by obtaining signatures on blank documents and vouchers without payment of outstanding dues.
3. Legal notice demanding outstanding dues was replied raising false averments of full and final settlement and application under Section 33C(3) of I.D. Act was thereafter filed claiming Rs.33,334/ which includes Rs.16,667/ as monthly wage for period 27.03.2017 to 20.04.2017 and remaining Rs.16,667/ as overtime wage @ 4 hour daily for period 27.03.2017 to 20.04.2017.
4. Respondent M/s Shogi Communication Ltd. has contested the application inter alia on following grounds:
i. Claimant is not a Workman as defined under Section 2(s) of I.D. Act, 1947 and application is liable to be dismissed with heavy cost;
ii. Registered office of respondent M/s Shogi Communication Ltd. is situated at Plot No. 7475, Industrial Area, Shoghi, Shimla 171219, Himachal Pradesh whereas Corporate Office is situated at A57, Sector6, Industrial Area, Noida201301, Uttar Pradesh and no other branch of the company is situated in Delhi or any other part of country;
iii.Claimant was never employed by the company and address of Page No. 2 of 9 Deepak Saxena Vs. M/s Shogi Communication Ltd.LC No. 264/17
respondent mentioned in the application is residential address of Director Shri Anant Bindal where claimant used to render personal service to his family members.
5. Averments in the application have been disputed in corresponding paras of reply by insisting that claimant was never employed by M/s Shogi Communications Ltd. and following issue was settled on 17.11.2018 after rejoinder and completion of pleadings:
i. Whether the petitioner/claimant is entitled to the amount claimed in his application under Section 33C(2) of Industrial Disputes Act?... OPW ii. Relief.
6. Averments in the application have been reiterated by Shri Deepak Saxena in affidavit Ex.WW1/A tendered in evidence and claimant's evidence was closed on 10.01.2019 after recording his crossexamination.
7. Respondent, on the other hand, has examined Shri Gopal Kumar Gupta who has tendered his affidavit Ex.MW1/A in evidence and relied upon following documents:
i. Photocopies (colour printouts) of payment vouchers dated 07.01.2017, 11.01.2017, 07.02.2017 and 07.03.2017 referred as Ex.MW1/A to Ex.MW1/D;
ii. Photocopy (colour printout) of relevant page of attendance register of March 2017 Ex.MW1/E;
iii. Memorandum and Article of Association containing Incorporation Certificate of respondent company Ex.MW1/F; iv. Computerized printout of certificate of ImporterExporter Code Page No. 3 of 9 Deepak Saxena Vs. M/s Shogi Communication Ltd.
LC No. 264/17Ex.MW1/G;
v. Photocopy of retail invoice dated 29.12.2016 Ex.MW1/H; vi. Photocopy of retail invoice dated 08.03.2017 Ex.MW1/I.
8. Matter continued to be listed for arguments till judicial file was received in this Court by way of transfer on 25.02.2021.
9. I have gone through pleadings and evidence.
10. 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 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 Page No. 4 of 9 Deepak Saxena Vs. M/s Shogi Communication Ltd.LC No. 264/17
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. 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 Central Inland Water Transport Corporation Ltd. (Supra) is reproduced below:
"12 It is now wellsettled that a proceeding under section 33(C)(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. This calculation or computation follows upon an existing right to the money or benefit, in view of its being previously adjudged, or, Page No. 5 of 9 Deepak Saxena Vs. M/s Shogi Communication Ltd.LC No. 264/17
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 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 Page No. 6 of 9 Deepak Saxena Vs. M/s Shogi Communication Ltd.LC No. 264/17
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) 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 Page No. 7 of 9 Deepak Saxena Vs. M/s Shogi Communication Ltd.LC No. 264/17
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 subjectmatter 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 Cooperative Supermill & Anr. (2008) 7 SCC 22; (ii) Municipal 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 Page No. 8 of 9 Deepak Saxena Vs. M/s Shogi Communication Ltd.
LC No. 264/17On Line 298 AND (vi) Vice Chancellor Vs. Dal Chand 2018 LLR.
15. Issue No.1: Whether the petitioner/claimant is entitled to the amount claimed in his application under Section 33C(2) of Industrial Disputes Act?... OPW
16. Respondent's contention that Shri Deepak Saxena was never employed by the company rather rendering personal service to family members of Shri Anant Bindal, Director M/s Shogi Communication Ltd. cannot be adjudicated under Section 33C(2) of Industrial Disputes Act, 1947.
FINDING: Testimony of WW1 Shri Deepak Saxena and MW1 Shri Gopal Kumar Gupta are inconsequential as employeremployee relation has been disputed by respondent M/s Shogi Communication Ltd. Issue No.1 is decided against the applicant in the absence of admission of employeremployee relation.
17. RELIEF: Application under Section 33C(2) of I.D. Act, 1947 claiming Rs.33,334/ along with interest and cost is dismissed.
18. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT
DATED: 25.05.2022 Digitally signed
by TARUN
TARUN YOGESH
YOGESH Date:
2022.05.31
14:30:20 +0530
(TARUN YOGESH)
PRESIDING OFFICER - LABOUR COURT08
ROUSE AVENUE COURTS: NEW DELHI
Page No. 9 of 9