Delhi Transport Corporation vs Bishan Swaroop
2009 Latest Caselaw 625 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P.(C) NO. 8216/2006

%                              Dated: 24.02.2009

DELHI TRANSPORT CORPORATION                               .... Petitioner

                         Through Mr.Ravi Kant, Advocate

                                   Versus

BISHAN SWAROOP                                            .... Respondent

                         Through Mr.S.L.Kashyap, Advocate.


HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether reporters of Local papers may be
      allowed to see the judgment?                                NO
2.    To be referred to the reporter or not?                      NO
3.    Whether the judgment should be reported in                  NO
      the Digest?


V. K. SHALI, J. (Oral)

*

1. The present writ petition has challenged the award dated 8th July,

2005 passed by Sh. D. C. Anand, Presiding Officer, Labour Court-I in

new LCA No. 51/2005 and old LCA No. 719/1991 in the case titled

Workman/claimant Bishan Swaroop Vs. M/s DTC.

2. By the impugned award dated 8th July, 2005 the claim petition of

the respondent/workman under Section 33(C)(2) of the Industrial

Disputes Act, 1947 was partially allowed by directing the

petitioner/management to pay an amount of Rs. 19,782.70 to the

respondent/workman within a period of one month on account of the

overtime of the respondent/workman with the petitioner/management.

3. The brief facts leading to the filing of the petition are that the

respondent/workman had filed the petition under Section 33(C)(2) of

the Industrial Disputes Act, 1947 against the petitioner/management

claiming various amounts which was on account of the overtime having

been rendered by him for 2320 hours and 35 minutes between the

period 1st February, 1986 to 25th April, 1988. It was stated that the

respondent/workman has worked as Conductor, and accordingly, he

was entitled to overtime calculated @ 8.50/- per hour which came to

roughly Rs.19782.70/-.

4. The petitioner/management in their written statement of the

statement of claim in para 3 sub para 3 stated as under:

"That the contents of Para III are incorrect, misconceived, wrong and hence denied. The workman work 2320 hours of overtime work from 1.2.1986 to 25.4.1988. The workman was paid Rs. 19,782.70 for overtime wages. No amount is payable in regard to overtime work."

5. After filing of the written statement the parties have adduced their

evidence in support of their respective claims. The

petitioner/management filed an affidavit of one Raj Kumar in which it

was stated that the respondent/workman has actually worked for 7

hours 20 minutes overtime for which he was actually paid his wages.

It was also denied that the respondent/workman had actually worked

for 2320 hours and 35 minutes.

6. The learned Labour Court arrived at a finding of fact and directed

the payment of Rs. 19782.70/- to the respondent/workman by the

petitioner/management on the ground that such a huge amount would

not have been paid by the petitioner/management to the

respondent/workman without obtaining his signatures on some

documents or without any documentary evidence in their record. The

petitioner/management had failed to adduce the evidence to show that

this payment has actually been made by the petitioner/management to

the respondent/workman, and accordingly, arrived at the said

conclusion.

7. I have heard the learned counsel for the petitioner/management,

however, as the respondent/workman has not appeared either in

person or through his counsel consequently there is no assistance

rendered from their side.

8. I have perused the record carefully and given the careful

consideration to the submissions made before me.

9. I feel that there is nothing wrong with the finding of fact arrived

by the learned Labour Court No.-I in granting a sum of Rs. 19782.70/-

to the respondent/workman for 2320 hours and 35 minutes overtime,

which has been calculated @ Rs. 8.50/-. The contention of the learned

counsel for the petitioner/management that the respondent/workman

had not worked for these many hours and further that he had only

worked for 7 hours and 20 minutes for which he was paid the wages

does not seem convincing on account of the fact that the

petitioner/management in its written statement has made a categorical

admission that the respondent/workman had worked for 2320 hours

and 35 minutes from 1st February, 1986 to 25th April, 1988 for which

he had been actually paid a sum of Rs. 19782.70/-, therefore, the

factum of the respondent/workman having worked for these many

hours has been admitted by the petitioner/management although in the

same paragraph they have made a contrary averment also denying the

averment made in the corresponding para 3 of the statement of claim

being incorrect, misconceived, wrong and denied. The

petitioner/management has failed to adduced any evidence on record,

despite an opportunity having been given to show that this payment of

Rs. 19782.70/- has been actually made to the respondent/workman.

10. Section 58 of the Evidence Act, 1872 though strictly may not be

applicable to the proceedings before the learned Labour Court but the

principle under the said section is very well governing the adjudication

of any dispute before any forum including the learned Labour Court.

The said section lays that a fact which is admitted need not be proved

by the opposite side. In their written statement, para 3, the

petitioner/management have admitted that the respondent/workman

had actually worked for 2320 hours and 35 minutes. Plea of the

petitioner/management is that he has been paid a sum of Rs.

19782.70/- which was due and payable to the respondent/workman for

the aforesaid period. This was a fact which was specially within the

knowledge of the petitioner/management, and accordingly, the onus to

prove the payment of the aforesaid amount was squarely on the

petitioner/management which it has miserably failed to discharge.

11. On the contrary, the petitioner/management has taken a

contradictory stand in the affidavit which has been filed in which it has

been stated that the respondent/workman has actually worked only for

7 hours and 20 minutes for which the overtime charges have been paid

to him. This time is totally in-comprehensible in view of the admission

having been made by the petitioner/management in the written

statement. I, therefore, feel that there is no perversity and illegality in

the order passed by the learned Labour Court. And accordingly, the

challenge to the said order by the petitioner/management must fail

against the impugned award dated 8th July, 2005 and the writ petition

is dismissed. The parties are left to bear the cost. The stay order

dated 16th April, 2007 which was granted against the operation of the

impugned ward dated 8th July, 2005 also stand vacated.

FEBRUARY 24, 2009                                      V.K. SHALI, J.
KP