Delhi High Court

M/S Devika Estate Management Pvt. ... vs M/S Devika Estate on 22 April, 2009

Author: V.K.Shali

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                 Writ Petition (Civil) No.18086/2005

                                    Date of Decision : 22.04.2009

M/s Devika Estate Management Pvt. Ltd.       ......Petitioner
                     Through: Mr. Gajendra Giri, Advocate


                                Versus

M/s Devika Estate                            ...... Respondent
                           Through : Mr. Mukul Sharma, Advocate
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether Reporters of local papers may be
      allowed to see the judgment?                     YES
2.    To be referred to the Reporter or not ?          NO
3.    Whether the judgment should be reported
      in the Digest ?                                  NO

V.K. SHALI, J. (Oral)

1. The petitioner in the instant writ petition has challenged the

award dated 21st December, 2004 passed by the Industrial Tribunal-II

in ID No. 11/2003 in case titled M/s Devika Estate Mangement Pvt.

Ltd. Vs. Its Workman, represented by All India General Mazdoor

Trade Union. By virtue of the aforesaid award the four points of

references which were made by the appropriate government to the

learned Industrial Tribunal have been answered in negative.

2. The learned Industrial Tribunal has grossly erred by not

granting the benefit of HRA, annual increment, conveyance allowance

and the uniform allowance despite the fact the respondent admitted

that similar benefits are given to the other employees. It was also

contended that in a similar matter bearing ID No. 3/2001 in case titled

M/s New Tech Electro System Vs. Its workmen represented by All

India General Mazdoor Trade Union, the workmen of the said case

were granted the benefit of HRA of Rs.1000/- travelling allowance of

Rs.600/-, washing allowance of Rs.150/- and tea allowance of

Rs.150/- per month by the same Industrial Tribunal, and therefore,

this resulted indiscrimination.

3. Per contra, the respondent in its counter affidavit denied the

claim of the petitioner. It was essentially urged that all the four claims

referred by the petitioner are general non specific and without any

merit. In addition to this, that the learned Labour Court has

appreciated the evidence adduced by the respective parties and arrived

at a finding that the petitioner is not able to prima facie establish any

such benefit is entitled to be given to the petitioners.

4. I have considered the submissions made by the respective sides

and perused the record. The following four points of references were

made to the learned Labour Court are as under:

(i) Whether the demand of the workmen for payment of house rent allowance is justified and if so, to what directions are necessary in this respect?

(ii) Whether the demand of the workmen for Annual Increment is justified and if so, to what directions are necessary in this respect?

(iii) Whether the demand of the workmen for Conveyance allowance is justified and if so, to what directions are necessary in this respect?

(iv) Whether the demand of the workmen for uniform is justified and if so, to what directions are necessary in this respect?

5. After the reference was made the parties are also directed to

adduce evidence. It will be pertinent here to mention that as to how

the learned Industrial Tribunal has dealt with each of the claim raised

by the petitioner. Instead of dealing with the same here it will be

pertinent to reproduce the exact language of the learned Industrial

Tribunal which read as under:

(4) The first claim of workmen is with regard to house rent allowance. To prove its entitlement WW-1 Sh. Sri Narain filed his affidavit dated 16.10.2003 and relied upon the documents Ex.WW1/1 to Ex.WW1/15. In his affidavit he deposed that he was working with the management. In his affidavit he claimed house rent allowance at the rate of Rs.1000/- per month. Similar type of statement has been made by all the other witnesses. I have also gone through the documents relied upon by the workmen. In Ex.WW1/1 house rent allowance of Rs.1000/- has been shown. In demand letter Ex.WW1/2 also the demand of house rent allowance of Rs.1000/- per month has been shown. The workmen have not shown any basis for their demand of house rent allowance @ Rs.1000/- per month. The workmen have also not shown that nay other industry is providing similar facility to their employees. Consequently, it is held that the workmen have failed to show their entitlement for house rent allowance.

(5) The next claim of workmen is with regard to annual increment. To prove its entitlement WW-1 Sh. Narian in his affidavit claimed annual increment 20%. Similar type of statement has been made by all the other witnesses. I have also gone through the documents relied upon by the workmen. In Ex.WW1/1 rate of annual increment has not been mentioned. In demand letter Ex.WW1/2 annual increment @ 20% has been mentioned. The workmen have not shown any basis for their demand of annual increment @ 20%. The workmen have also not shown that nay other industry is providing similar facility to their employees. Consequently, it is held that the workmen have failed to show their entitlement for annual increment.

(6) The next claim of workmen is with regard to conveyance allowance. To prove its entitlement WW-1 Sh. Sri Narian in his affidavit claimed conveyance allowance @ Rs. 700/- per month. Similar type of statement has been made by all the other witnesses. I have also gone through the documents relied upon by the workmen. In Ex. WW1/1, the conveyance allowance @ Rs.700/- has been mentioned. In demand letter Ex.WW1/2 conveyance allowance @Rs.700/- has been mentioned. But the workmen have not shown any basis for their demand of conveyance allowance @ Rs.700/- per month. The workmen have also not shown that nay other industry is providing similar facility to their employees. Consequently, it is held that the workmen have failed to show their entitlement for conveyance allowance.

(7) The other claim of workmen is with regard to uniform. To prove its entitlement WW-! Sh. Sri Narian in his affidavit claimed two terricot uniform, shoes and socks every year. Similar type of statement has been made by all the other witnesses. I have also gone thought he documents relied upon by the workmen. In Ex.WW1/1, only the uniform, shoes and socks have been mentioned. In demand letter Ex.WW1/2 also the uniform, shoes and socks have been mentioned, but no justification has been given. The workmen have not shown any basis for their demand of uniforms. The workmen have also not shown that any other industry is providing similar facility to their employees. Consequently, it is held that the workmen have failed to show their entitlement for uniforms.

6. An analysis of the evidence adduced by the petitioner

hereinabove by the Tribunal would clearly show that the petitioner or

its members of the Union could not have granted any benefit. They

ought to prima facie establish such a benefit is to be given to them.

This is consistent with the fundamental principle that one who assert

must prove. The learned Tribunal has come to a finding that the

petitioner as a union has failed to establish its claim or the rate at

which the HRA, travelling allowance and uniform allowance is to be

given so much so even the petitioner has not been able to establish

that in the similar industry such a benefit were given to the workers.

Therefore, if the petitioner has not been able to establish his claim

before the learned Tribunal, the High Court could not sit as a court of