Delhi District Court
A Claim Was Filed U/S 33C(2) Of The ... vs Abdulhampeed Abruirasheed on 29 October, 2007
IN THE COURT OF MS. REKHA RANI : POLC - XIII :
KARKARDOOMA COURTS : SHAHDARA : DELHI
LCA NO.04/07
Date of Institution : 17.12.1996
Award reserved on : 25.10.2007
Date of Award : 29.10.2007
BETWEEN
SH. SON PAL C/O ALL INDIA GENERAL MAZDOOR TRADE
UNION (REGD.) 163, BALMUKUND KHAND, GIRI NAGAR,
KALKAJI, NEW DELHI-19.
AND
MANAGEMENT OF : M/S N.G. ELECTRONICS, B-249, OKHLA
PHASE-I, NEW DELHI-20.
ORDER
1. A claim was filed U/s 33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) by the claimant on the following averments :
He worked with the management since January 1992 as 1 wireman and his last drawn wages were Rs.1700/- per month. He worked upto October 1996. He has claimed an amount of Rs.71992/-
out of which Rs.5252 is on account of annual leave @ 15 days per annum w.e.f. January 1992 to October 1996, Rs.18,208/- on account of weekly off of 52 days w.e.f. January 1992 to October 1996 Rs.26262 on account of bonus @ 20% per annum w.e.f. January 1992 to October 1996, Rs.21010 towards overtime allowance at double rate w.e.f. January 1996 to October 1996 and Rs.1206 on account of arrears of earned wages w.e.f. 1.10.96 to 18.10.96.
2. Management contested his claim vide its written statement. It is pleaded that the claim is not maintainable U/s 33 C (2) of the Act as it is not based on any pre-existing right, not it is predetermined and the same cannot be determined in execution proceedings. It is also stated that the claim is not maintainable against the firm N.G. Electronics as the same has been dissolved in year 2000 and a new company in the name and style of M/s N.G. Technologies Ltd. was registered. Status of the claimant is not denied. 2
3. It is denied that management did not give weekly off. It is stated that he was working six days in a week and there was no occasion to claim weekly off. It is further stated that there is no provision for encashment of weekly off.
4. Regarding annual leave it is stated that the same was availed of by the workman and the leave record maintained by the management does not show any leave due to the workman. It is also stated that annual leave cannot be accumulated/encashed for more than 45 days.
5. It is further stated that bonus and overtime allowance were paid to him as and when fell due and nothing is due to him on account of the same.
6. An ex.parte order was passed by my Ld. Predecessor granting all benefits as prayed for to the workman.
7. The management challenged the order and the Hon'ble High 3 Court vide its order dated 8.8.06 quashed the order of my Ld. Predecessor and remanded the case for afresh trial.
8. I have carefully perused the material available on record and also heard Ld. AR for both sides.
Overtime allowance
9. Workman has claimed overtime allowance at double rate w.e.f. January 1996 to October 1996 amounting to Rs.21010/-.
In Special Officer, Vellore Co-operative Sugar Mills, Ammundy Post. Vellore v. Presiding Officer, Labour Court, Vellore & Ors. 2005 LLR 653 Hon'ble Mr. Justice Markandey Katju, on the claim of the claimant for overtime allowance held that as per Section 101 & 102 of the Indian Evidence Act, 1872, burden of proof lies on the workman and observed as follows :
"In our opinion, it was incumbent upon the claimant for overtime allowance to mention which officer or supervisor asked him to work overtime, and when and where, but 4 the details have not been given in the present case. In our opinion, merely mentioning that the claimant worked overtime for a certain number of hours without clearly stating who ordered him to do overtime and without giving other details cannot sustain a claim for overtime allowance."
In case of Arora Industries vs Abdulhampeed Abruirasheed, 2006 LLR 397, it was held that a claim for overtime for six years by a workman under section 33C(2) of the Industrial Disputes Act will not be tenable since it is not based on the existing right of the workman and, as such, the Labour Court has committed gross error in allowing the claim which is liable to be set aside in writ petition.
In case of Gujarat Water Supply and Sewerage Board & Anr. vs. Ketanbhai Dinkaray Pandya, Amroll, 2003 LLR 1118. In LPA Hon'ble Division Bench made the following observation :
"Labour Court has wrongly jumped to the conclusion that all the workmen were working 12 hours per day but paid the 5 salary for only 8 hours per day, therefore, they were entitled for overtime of 4 hours per day. The disputed questions need to be adjudicated upon by a competent authority or Court. Under section 33C the Labour Court acts only as an executive Court and could not have undertaken the exercise of deciding, awarding and executing the claim of the workman in one go. Learned single Judge, therefore, erred in upholding the award of Labour Court while dismissing the petition of employer. The employer-Board has raised bonafide dispute before the Labour Court regarding the claim of overtime wages of the workmen, which should have been first adjudicated either by the competent authority under the Minimum Wages Act or by the Labour Court in reference proceedings under Section 10 of the I.D. Act. In absence of it, all the recovery applications filed before the Labour Court by the respondent - workmen under Section 33C(2) of the I.D. Act were not maintainable. Factually also, the Labour 6 Court has erred in appreciating the evidence on question whether the workman did not work overtime, if so, to what extent? The conclusions are arrived at in absence of evidence in that regard. Awards granting overtime wages to 43 workers in applications under section 33(C)(2) of the I.D. Act, in the absence of adjudication by competent authority though there was a bonafide dispute over overtime wages are under challenge in these Letter Patent Appeals."
In case of Union of India and Anr. vs. Kankuben (Dead) by Lrs. and Ors. etc. etc., 2006 LLR 494, the Hon'ble Apex 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. 7
In the case of Pune Municipal Corporation and Suryakant Pandurang Dharwad, 2002 (95) FLR 559 It was held as under :
"It is not enough merely to say that the employees are entitled to get the wages under the law. If the law requires the claimant to establish their existing right to get a certain claim, they must show their existing right and the source of such right or the basis thereof. The source could be either a statue, say the Bombay Shops and Establishment Act or the Payment of Bonus Act or the Minimum Wages Act etc. The pleading has to be clear at least to that extent. It cannot be said that the existing right is established by merely saying that the workmen is entitled to get certain amounts "under law". The alleged law has to be identified and established by specific pleadings in the application. The opposite party or the employer cannot be taken by surprise and cannot be kept in dark in respect of the alleged source of the existing right. The employer must know under what provisions of law or under what terms of the contract, the claim is made against him 8 and under what provisions he is liable to make such payment. Neither the employees nor the labour Court has identified the source of the existing right to grant the overtime wages at double the rate as awarded by the labour Court ... It is, therefore, clear that the applicant or the claimant has to first establish his right to make a claim of money from the employer. In the absence of the existing right having been established, the labour court has no jurisdiction to determine and compute the claims made under section 33-C2 of the ID Act. This provision is more or less of the nature of execution of the established claims of the workmen. Under these provisions no claims or no new terms of contract can be established or disputed questions can be adjudicated for the first time. It is pertinent to note that in the applications filed by the workmen, it is nowhere indicated that under what law or under what contract they were claiming the amount of overtime wages."9
10. In Tara & Ors. Vs. Director, Social Welfare & Ors., 1998 LLR 882, the Hon'ble Apex Court has held as under :
"It is clear that the question of maintainability of the applications under section 33C(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 section33C(2)."
11. In view of Tara & Ors. (supra) preliminary issue to the following effect was framed :
"Whether the claim is maintainable U/s 33 C (2) of the Industrial Disputes Act 1947?"
12. In view of judgments quoted above claim for overtime allowance is not maintainable because workman has merely made a vague plea that he worked daily for 4 hours w.e.f. January 1996 to 10 October 1996. No details were pleaded as required vide judgment in Special Officer, Vellore Co-operative Sugar Mills, Ammundy Post. Vellore (supra). Keeping in view the same Mr. Markande Shukla Ld. AR for the workman stated on 19.9.07 that he did not press claim for overtime allowance.
Weekly off
13. Ld. AR for management has rightly contended that there is no provision for encashment of weekly off so claim for such encashment is not maintainable.
Arrears of earned wages
14. Workman has claimed earned wages from 1.10.96 to 18.10.06. Management in its written statement did not controvert the same as being due to the workman. In fact AR for management Sh. Arvind Kumar on 11.10.07 stated that management has not disputed that it is to pay arrears of wages to the workman w.e.f. 1.10.96 to 18.10.96. He added that since the workman abandoned employment there was no occasion to pay the same.
11
15. Workman is accordingly held entitled to wages @ Rs.1700/- per month w.e.f 1.10.96 to 18.10.96. It is pertinent to mention here that in para 1 workman has given his last drawn wages as Rs.1700/- per month which is not denied by the management in the written statement.
Bonus
16. Workman has claimed bonus @ 20 % w.e.f. January 1992 to October 1996. Management has denied that is is liable to pay the same on the plea that the same already stood paid as and when it became due. On 19.9.07 management was directed to produce its records showing payment of bonus to the workman. Management has filed an affidavit stating therein that the record is not available. As such, plea of the management that the bonus was paid as it fell due is not proved.
17. Worker has claimed bonus @ 20 % per annum. This court U/s 33 C (2) which is in the nature of executing proceedings cannot 12 determine the amount of allocable surplus of the employer. Payment of Bonus Act prescribes minimum bonus @ 8.33% per annum payable during the accounting year.
18. In Jeet lal Sharma V. Presiding Officer, Labour Court IVth and another 2000 (85) FLR 268 the question relating to ambit and scope of powers of labour court U/s 33 C (2) was adjudicated upon. It was held :
"When the claim is based on adjudication or settlement it poses no difficulty. However, there may be cases where the workman would be held entitled to receive the money as pre-existing right on the basis of the agreement between the employer and employee or as per established service conditions which have culminated into right in favour of the workman. Take for example, when a workman is not paid his wages for a particular period, he shall be entitled to file application under Section 33 C (2) of the Act claiming wages for that period as he is entitled 13 to receive the same at the rate agreed upon and at which the employer has been paying to him in the past. There is no adjudication or settlement but he is entitled to receive the wages of the period in dispute.
This is as per the terms of employment.
...
Same may be the position in respect of the payment of minimum bonus.
19. In view of aforesaid workman is held entitled to bonus @ 8.33% per annum.
20. He has claimed the same w.e.f. January 1992 to October 1996.
21. Ld. Authorised Representative for management has stated that the claim for bonus for 4 years is not admissible. It is stated that the claim is stale and is barred by time. Workman hasnot placed any document on record which may show that he ever complained against 14 the management for not giving bonus for so long. As such, workman is held entitled to minimum bonus @ 8.33% per annum on the last drawn wages for the last three years w.e.f. 1994-96. Encashment of earned leave
22. Workman has claimed an amount of Rs.5252/- on account of annual leave w.e.f. January 1992 to October 1996 @ 15 days per annum.
23. Management contended in para 2 of the written statement that workman from time to time applied for leave and the same has been availed of by him after being sectioned by the management and the leave record maintained by the management does not show any leave due for encashment. It is further pleaded that in any case the annual leave cannot be accumulated and /or encashed for more than 45 days. So Sh. Markande Shukla, Ld. Authorised Representative for the workman vide his statement made in the court on 19.9.2007 restricted claim for leave encashment of earned leave upto 45 days. 15
24. Vide order dated 19.9.07 management was directed to produce the leave record of the workman. Management filed an affidavit stating therein that the record is not available.
25. Management is in possession of the best evidence to prove its plea that the workman has already availed off earned leave after the same was sanctioned by it.
26. In the absence of any record to prove the same, it is presumed that workman did not avail of earned leave. The same is accordingly liable to encashment. Workman is held entitled to encashment of 45 days at the last drawn wages of Rs.1700/- per month.
27. In 1980 MPLJ 118 (124) (DB) it was held that the effect of section (79 of Factories Act) merely is that so long as such other law, award, agreement, settlement or contract of service continues, it will have application to the workman if the benefits conferred by it are more favourable in matters of leave than the provisions of Section 79 to 82 and then the provisions of section 79 to 82 shall to that extent, 16 not apply.
28. It is stated on behalf of the management that M/s N.G. Electronics Ltd. closed in the year 2000 and M/s N.G. Technologies Ltd. was registered. Mere change of name of the management will not defeat the claim of the workman. It is not alleged that the reconstituted concern has not taken over the assets and liabilities of the earlier concern.
29. As such claimant is held entitled to the relief as stated above. Appropriate government be informed. File be consigned to record room.
Announced in the open PRESIDING OFFICER Court on 29.10.2007 LABOUR COURT NO. XIII KARKARDOOMA COURTS, DELHI 17