Delhi District Court
Smt. Kamlesh S/O Shri Shiv Prakash vs M/S Adigear International on 8 July, 2015
IN THE COURT OF SHRI NARINDER KUMAR
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER : LABOUR COURT - XIX
KARKARDOOMA COURTS : DELHI
LCA No. 43/2014
Unique Case ID No. 02402C0 058762014
Smt. Kamlesh S/o Shri Shiv Prakash
R/o A109, Rajapuri,
Gali NO. 23 Bharat Vihar, Delhi ..............................Claimant
Versus
M/S Adigear International
A40, Mayapuri Industrial Area PhaseI,
New Delhi - 110 064 .......................Management
Date of institution of the case : 11.2.2014
Date of passing the award : 08.7.2015
A W A R D
Present claim under Section 33C(2) of the Industrial Disputes Act,
1947 (hereinafter referred to as the 'Act'), came to be filed by the claimant on
11.2.2014 claiming earned wages for the month of December and January 2014
@ Rs.7254/ which were not paid by the management.
The claim came to be opposed by the management by filing
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written statement denying that claimant is entitled to any such amount. One of
the preliminary objections raised by the management is on maintainability of
claim, on the ground that only after adjudication of a complaint or on a
reference, a claim U/S 33C(2) of the Act is maintainable.
Claimant did not file any rejoinder.
2. From the pleadings of the parties, following Issues were framed on
20.10.2014 :
1.Whether the workman is entitled to the monetary relief, as claimed for?
2. Relief
3. The workman filed her affidavit, but despite ample opportunities she did not turn up to tender her evidence and thus, failed to lead any evidence. The matter was listed for the first time for evidence of workman for 19.12.2014, then adjourned to 17.1.2015, 28.2.2015 and 16.5.2015 but workman did not step in the witness box. Hence, her evidence was closed by order of Court. Management also opted not to lead any evidence.
4. I have heard learned Authorized Representatives for the parties and have gone through the record.
ISSUE No. 1 :
5. The onus to prove this issue was upon the workman . Through the present claim U/S 33C(2) of the Act, claimant has demanded her earned wages for the month of December and January 2014 @ Rs.7254/ which were allegedly not paid by the management, but she has failed to lead any evidence or to prove the documents annexed to her affidavit.
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6. Section 33C(2) of the Act reads as under: "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 it do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit."
In case M/s Punjab Beverages Pvt. Ltd., Chandigarh vs Suresh Chand and Another (1978) 2 Supreme Court Cases 144, it was observed as under:
"But the right to the money which is sought to be calculated or 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 the industrial workman, and his employer."
It is not competent to the Labour Court exercising jurisdiction under Section 33C(2) to arrogate to itself the functions of an industrial tribunal and entertain a claim which is not based on an exiting right but which may appropriately be made the subject matter of an industrial dispute in a reference under Section 10 of the Act.
It was further observed that "the workman, who has been dismissed, would no longer be in the service of the employer and though it is possible that on a reference to the Industrial Tribunal under Section 10 the Industrial Tribunal may find, on the material placed before it, that the dismissal was unjustified, yet until such LCA No. 43/2014 3 of 6 adjudication is made, the workman cannot ask the Labour Court in an application under Section 33C(2) to disregard his dismissal as wrongful and on that basis to compute his wages. The application under Section 33C(2) would be maintainable only if it can be shown by the workman that the order of dismissal passed against him was void ab initio. Hence it becomes necessary to consider whether the contravention of Section 33C(2)(b) introduces a fatal infirmity in the order of dismissal passed in violation of it so as to render it wholly without force or effect, or despite such contravention, the order of dismissal may still be sustained as valid." In this regard, reference may also be made to decision in Central Bank of India Ltd. vs P.S. Rajagopalan (1964) 3 SCR 140 it was held as under:
"The workman can proceed under Section 33C(2) only after the Tribunal has adjudicated, on a complaint under Section 33 A or on a reference under Section 10, that the order of discharge or dismissal passed by the employer was not justified and has set aside that order and reinstated the workman".
"If an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, it would not be open to him to make a claim for the recovery of his salary or wages under Section 33C(2). His demotion or dismissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal or demotion is unlawful and, therefore, the employee continues to be the workman of the employer and is entitled to the benefits due to him under a preexisting contract, cannot be made under Section 33C(2)."
It was further observed as:
"We would, however, like to indicate some of the claims which would not fall under Section 33C(2), because they formed the subject matter of the appeals which have been grouped together LCA No. 43/2014 4 of 6 for our decision along with the appeals with which we are dealing at present. If an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, it would not be open to him to make a claim for the recovery of his salary or wages under Section 33C(2). His demotion or dismissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal or demotion is unlawful and therefore, the employee continues to be the workman of the employer and is entitled to the benefits due to him under a preexisting contract, cannot be made under Section 33C(2)."
In this regard reference may also be made to decision in Chief Mining Engineer, East India Coal Co. Ltd. vs. Rameshwar (1968) 1 SCR 140, State Bank of Bikaner and Jaipur vs. R.L. Khandelwal (1968) 1 LLJ 589. In Union of India vs Kankuben, 2006 AIR(SC) 1784; State Bank of India vs Ram Chandra Dubey, 2001 (1) SCC 73; Municipal Corporation of Delhi vs Ganesh Razak and Another 1995 1 SCC 235.
7. Case of claimant is that on 16.01.2014 management illegally terminated her services. She has not challenged the same. Present claim u/s 33C(2) would have been maintainable only if it was firstly proved by the workman in the industrial dispute u/s 10(4A) that the order of termination of her services passed by the management was void ab initio.
Accordingly, this court holds that the present claim u/s 33C(2) of the Act is not maintainable. In view of above discussion , this issue is decided against the claimant.
LCA No. 43/2014 5 of 6 ISSUE No. 2/Relief. :
8. In view of the findings under Issue No. 1 above, the claim of the claimant is dismissed and she is held not entitled to any relief.
File be consigned to Record Room.
ANNOUNCED IN OPEN COURT
ON 8th day of July 2015 (Narinder Kumar)
Addl. District & Sessions Judge
Presiding Officer, Labour CourtXIX
Karkardooma Courts, Delhi
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