Delhi District Court
A Claim Was Filed U/S 33 C (2) Of The ... vs Presiding on 24 January, 2008
IN THE COURT OF MS. REKHA RANI : POLC - XIII :
KARKARDOOMA COURTS: SHAHDARA : DELHI
LCA.124/06
Date of Institution : 27.1.2004
Award reserved on : 24.12.2007
Date of Order : 24.1.2008
BETWEEN
SH. PRADESHI RAWAT R/O A-60, CHHATARPUR EXTN.,
MEHROLI, NEW DELHI.
AND
THE MANAGEMENT OF : M/S L.B. EXPRESS LTD. A/294,
ROAD NO.6, RASHTRIYA RAJMARG SANKHYA-8,
MAHIPALPUR, NEW DELHI-37.
ORDER
1. A claim was filed U/s 33 C (2) of the Industrial Disputes Act, 1947 (hereinafter called the Act) by the applicant for recovery of Rs.1,00,444/- from M/s L.B. Express Limited (hereinafter called the management) pleading therein following averments :
He was working with the management of M/s Elbee Services Limited. Name was later on changed to M/s Elbee 1 Express Limited. He worked from 13.1.2000 to 24.8.2000. Then he met with a serious accident. Management promised to pay him proper compensation and reimbursement of medical expenses but management stopped payment of his wages w.e.f. 1.5.03. He worked with the management upto 30.4.04. Thereafter management terminated his services without any notice or payment. He has prayed for payment of amount of Rs.1,00,444/-
out of which he has claimed Rs.33096/- on account of earned wages w.e.f. 1.5.03 to 30.4.04, Rs.6048 on account of overtime allowance for 509 hours, Rs.1400/- as night allowance w.e.f.
1.5.03 to 30.8.03, Rs.10000/- as bonus w.e.f. 13.1.2000 to 30.4.04 and Rs.50,000/- for accident compensation. A separate application was also filed U/s 33 C (2) of the Act by the applicant for payment of his dues as mentioned above.
2. My Ld. Predecessor vide his order dated 27.1.04 dealt with the claim U/s 33 C (2) of the Act.
3. Management was proceeded ex.parte.2
4. Claimant examined himself as WW-1 and thereafter closed his evidence. I have carefully perused the material available on record and also heard Ld. AR for the workman.
5. Claim was filed U/s 33 C (2) of the Act by the applicant as is clear from his application dated 27.1.04. My Ld. Predecessor dealt with the same accordingly.
6. Applicant has claimed an amount of Rs.33096/- as earned wages w.e.f. 1.5.03 to 30.4.04. To be eligible for payment of the same applicant has to place on record some documentary evidence to show that he worked with the management for the said period but was not paid wages.
7. This court in proceedings U/s 33 C (2) of the Act does not have jurisdiction to determine whether the applicant worked with the management for the said period.3
8. In Life Insurance Corporation of India, Agra Vs Presiding Officer, Central Government Industrial Labour Court, Kanpur 2004 (101) FLR 338, the Corporation denied the relationship of master and servant or payment of wages. The Hon'ble court observed as follows :
"There is no document to prove his employment conclusively ... The corporation denies relationship of master and servant or payment of wages... This controversy cannot be decided without evidence and is out-side the scope of section 33-C of the Industrial Disputes Act. The controversy falls in the ambit of section 10 of the Industrial Disputes Act. The Labour Court could not have computed the wages under section 33-C of the Industrial Disputes Act unless the question of his employment was adjudicated by competent Court in a reference..."
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In the case of Central Group and Others And Motiram S. Thakare 2005 - II - LLJ 492, Labour Court's jurisdiction under section 33-C(2) of the Act read with Rule 62 of the Industrial Dispute (Central) Rules, 1957 to decide the status of the claimant as workman arose for consideration. The Hon'ble High Court observed that Labour Court could not adjudicate upon the status of the claimant as a workman under section 33-C(2) of the Act. I quote the relevant observations :
13.The issue relating to the status of the claimant as the workman is not dependent upon the issue of entitlement of the amount and on the contrary, the issue relating to entitlement of amount claimed depends upon the status of the claimant as that of the workman.
14. Considering the provisions of law, the scope of powers of the Court under Section 33-C(2) of the said Act and the law laid down by the 5 Apex court, therefore, it is apparent that the issue relating to the status of the claimant as being the workman or employee of the opponents in such proceedings cannot be adjudicated upon the Labour Court in such proceedings on the assumptions that such an issue is an incidental issue.
(emphasis mine)
9. The applicant has placed on record photocopy of the order of Secretary (Labour) bearing number F.No.F-24 (2637)/04/Lab./2658-62 vide which the Secretary referred the dispute of termination of services of applicant to Mr. Vinod Goel, Labour Court No.VI for adjudication. Applicant has not placed anything on record to show what was the outcome of the reference.
10. I may also refer to the document placed on record by the applicant and proved as Mark B. It is letter of Labour Officer dated 15.12.03 vide which applicant was informed that 6 management against which applicant had filed a claim was found closed. Mark C is letter of the labour and employment department, Government of India dated 3.12.05 vide which Labour Commissioner Mumbai was advised to take up the claim of the applicant with the management situated at Mumbai. So it is not even clear whether the applicant worked with the management at Mumbai or at Delhi.
11. It is further not clear that if the management was closed way back in 2003 as is evident from letter Mark B dated 15.12.2003 how the applicant worked with it in 2004.
12. It is further not clear as to whether he worked at Mumbai or Delhi office of the management at the time of accruel of cause of action.
13. These issues need to be determined in reference and not in the present execution proceedings.
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14. Applicant has claimed overtime allowance of Rs.6048/- for 504 hours w.e.f. 1.5.03 to 30.8.03. Claim is vague and material facts are lacking.
15. In Special Officer, Vellore Co-operative Sugar Mills, Ammundy Post. Vellore v. Presiding Officer, Labour Court, Vellore & Ors. 2005 LLR 653 Hon'ble S. Markandey Katju, on the claim of the claimant for overtime allowance held as under :
"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 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."8
16. In case of Union of India and Anr. vs. Kankuben (Dead) by LRs. and Ors. 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.
17. In case of Arora Industries v. Abdulhampeed Abruirasheed, 2006 LLR 397 Hon'ble Gujarat High Court held that a claim for overtime for six years by a workman under Section 33 C (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.
18. In case of Gujarat Water Supply and Sewerage Board & 9 Anr. vs. Ketanbhai Dinkaray Pandya, Amroll, 2003 LLR 1118, fourty three workers claimed overtime wages in application under section 33(C)(2) of the Act. Labour Court passed an order allowing overtime wages. Ld Single Judge dismissed the writ petition of the management. In LPA Hon'ble Division Bench accepted the appeal and made the following observation :
"Unfortunately, the Labour Court has completely miread this evidence and came to the perverse finding that it is proved from the evidence of workman Ketan Pandya and Dy. Executive Engineer, Shah Chauhan that the workmen were working for 12 hours per day instead of 8 hours per day and paid salary for 8 hours, therefore, they were entitled for overtime of 4 hours per day. Unfortunately, neither the Labour Court nor the learned single judge of the Court, considered this aspect i.e., any complaint in writing as well as the evidence and the Labour Court has wrongly jumped to the 10 conclusion that all the workmen were working 12 hours per day but paid the 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 11 reference proceedings under Section 10 of the I.D. Act. In absence of it, all the recovery applications correctly filed before the Labour Court by the respondent - workmen under Section 33C(2) of the I.D. Act were not maintainable."
19. He has further claimed Rs.1400/- as night allowance for 70 days w.e.f. 1.5.03 to 30.8.03 and bonus for four years and accident compensation. These claims are not maintainable as it has not already been adjudicated upon before competent court whether the applicant worked with the management for the said period or not.
20. Although the management is ex.parte the court is required to adjudicate upon the claim of the workman on merits. In other words, the claim is not to be mechanically decreed merely because it has not been contested by the management as was observed by our own Hon'ble High Court in M/s Dolly International v. Workman C/o All India General Mazdoor Trade Union Civil Misc. 12 petition No.3624-3630/06 dated 4.4.2006 as under :
"The Labour Court, even if it was justified in proceeding ex.parte, has no jurisdiction to grant relief without determining or adjudicating upon the merits of the dispute referred to it. The adjudication has to be made upon the merits of the reference."
...
The spirit and intendment of the provision permitting ex.parte proceedings appears to be that the absence of the party should not be permitted to hinder or effectuate the progress of the proceedings. In order to effectuate the intention of the legislature, the industrial adjudicator has to imagine as if the person is present before it, but is unwilling to adduce evidence or to press his case. It is then of necessity that the adjudicator has to pass an order on the basis of the evidence placed before 13 it by the other party who, in fact, participates in the proceedings. Such intention of the legislature is to be found in the use of the words, "as if he had duly attended". (Emphasis mine) ...
In 1997 I LLJ 923 entitled Tamil Nadu Housing Board, Madras v. The Presiding Officer, II Additional Labour Court, Madras & Anr., it was held that even though the management may remain absent, the labour court was required to consider and give reasons for passing the award in favour of the workman. It no reasons were given, not even the facts of the case stated, the award could not be considered to be a speaking order and as such, was not sustainable.
...
Therefore, the proceedings before the industrial 14 adjudicator must show that there was adequate material before the adjudicator in support of the claim laid by the claimants and that the industrial adjudicator has applied mind to it."
21. In view of aforesaid, claim is not maintainable U/s 33 C (2) of the Act. File be consigned to record room.
DATE : 24.1.2008 PRESIDING OFFICER
LABOUR COURT NO. XIII
KARKARDOOMA COURTS
DELHI.
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