Allahabad High Court
M/S Hotel Gulmarg Lucknow Thru ... vs Presiding Officer Labour Court ... on 31 October, 2022
Bench: Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 20
Case :- WRIT - C No. - 29802 of 2019
Petitioner :- M/S Hotel Gulmarg Lucknow Thru Partner Anwar Wahab
Respondent :- Presiding Officer Labour Court U.P. And Anr.
Counsel for Petitioner :- Jay Shrinet,Kirti Kar Tripathi,Shrikant Tripathi
Counsel for Respondent :- C.S.C.
Hon'ble Manish Kumar,J.
1. The case has been called in the revised list.
2. This Court vide its order dated 24.10.2019 had issued notice to respondent no. 2.
3. As per the Office report dated 22.09.2022, the notice was sent by the speed post plus AD on 13.11.2019 since then neither any undelivered cover/AD received back nor any power has been filed on behalf of respondent no. 2. The Joint Registrar (J)(N) has also submitted his report dated 26.09.2022 stating therein that the notice sent on 13.11.2019 was not received back nor any vakalatnama has been filed till date. Hence service of notice is deemed sufficient upon opposite party no. 2 in view of Chapter VIII Rule 12, Explanation II of High Court Rules. Even today, when the matter was taken up in the revised list, no counsel has put in appearance on behalf of respondent no. 2.
4. The present writ petition has been preferred for quashing of the judgment and order dated 26.09.2018 passed by respondent no. 1 i.e. Presiding Officer, Labour court, U.P. Lucknow in Misc. Case No. 44 of 2019 filed under Section 33-C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act, 1947').
5. Learned counsel for the petitioner has submitted that the respondent no. 2 had filed an application under Section 33-C(2) of the Act, 1947 for payment of wages for the month of March, 2005; wages upto 10.04.2005; one month notice pay; retrenchment compensation for 17 years i.e. 510 day wages @ 88.46 per day; earned leave wages for 135 days and bonus for the year 2001-02, 2002-03 & 2003-04 @ 8.33%. It is further submitted that the Presiding Officer, Labour court has decided the matter in favour of the opposite party no. 2 and allowed her claim to the tune of Rs. 69,440/- in a most arbitrary and illegal manner.
6. It is further submitted that an objection has been raised on behalf of the petitioner before the Presiding Officer that the claim filed by the respondent no. 2 under Section 33-C(2) of the Act, 1947 is not maintainable and the respondent no. 2/claimant before the Labour court had not adduced any evidence along with her claim, though, onus was upon her to prove the same.
7. It is further submitted that the proceedings under Section 33-C(2) of the Act, 1947 are the proceedings of an execution of the decree or the settlement arrived between the employee and the employer. The Presiding Officer under Section 33-C(2) of the Act, 1947 is not empowered to adjudicate the claim and in support of his submission, he has relied upon the judgment dated 04.02.2022 of Hon'ble the Supreme Court in the case of M/s. Bombay Chemical Industries vs. Deputy Labour Commissioner & Anr. passed in Civil Appeal No. 813 of 2022 and the judgment dated 20.10.2022 passed by Hon'ble the Supreme Court in the case of Municipal Corporation of Delhi vs. Razak [1995 SCC (1) 235].
8. It is further submitted that the plea of onus of proof upon the respondent no. 2 was taken after the cross-examination of respondent no. 2 where she had stated that after perusal of the record/file, there is no document on the record pertaining to the service of her husband; there is no document on the record to show the salary of the husband of the petitioner; there is no evidence that for how many days, her husband had worked/employed; there is no evidence that her husband was retrenched from the services. Even then, the order has passed by the Presiding Officer in favour of the respondent no. 2 by simply saying that the judgment relied by the petitioner is not applicable on the facts of the present case.
9. On the other hand, learned standing counsel is not in a position to dispute the submission raised by learned counsel for the petitioner.
10. Considering the submissions raised by learned counsel for the parties, going through the record and the judgments relied by learned counsel for the petitioner, as per Section 33-C(2) of the Act, 1947, the Labour court is empowered to execute a decree or a settlement entered into between the employee and the employer. Under Section 33-C(2) of the Act, 1947, the Labour court exercises the power of a executing court like execution court. From the case laws referred by the learned counsel for the petitioner, it is clear that the court below under Section 33-C(2) of the Act, 1947 cannot adjudicate the dispute. Here in the present case, after going through the cross-examination of respondent no. 2, it is clear that she had not adduced or enclosed any evidence in support of her claim made under Section 33-C(2) of the Act, 1947. The claim made by respondent no. 2 was not for pre-existing right or benefit. The claim was filed for her right or benefit which has been distinguished by Hon'ble the Supreme Court in the case of M/s. Bombay Chemical Industries vs. Deputy Labour Commissioner & Anr. (supra) and held that the former falls within the jurisdiction of Labour court exercising powers under Section 33-C(2) of the I.D. Act while the latter does not.
11. In view of the discussion made hereinabove, the writ petition is allowed. The judgment and order dated 26.09.2018 passed by respondent no. 1 i.e. Presiding Officer, Labour court, U.P. Lucknow in Misc. Case No. 44 of 2019 is hereby quashed.
Order Date :- 31.10.2022
Nitesh
