Sher Singh vs The Presiding Officer, Central ...
2009 Latest Caselaw 1964 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+          WP (C) Nos. 2084/1993, 2085/1993,
       2087/1993,2088/1993,2089/1993,108/1994,765/94


%                              Judgment delivered on: 11.05.2009

Sher Singh                                ...... Petitioner
                           Through: Mr. Ashok Aggarwal, Advocate
                           with Mr. Anuj Aggarwal, Advocate

                      versus

The Presiding Officer,
Central Government Labour Court,                     ..... Respondent

                           Through:   Mr.    Kumar    Rajesh     Singh,
                           Advocate

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.     Whether the Reporters of local papers may           Yes
       be allowed to see the judgment?

2.     To be referred to Reporter or not?                  Yes

3.     Whether the judgment should be reported             Yes
       in the Digest?

KAILASH GAMBHIR, J. (Oral)

*

1. This order shall dispose of seven petitions filed by the

respective petitioners assailing the order of the Labour Court

whereby the individual applications filed by these workmen

under Section 33-C(2) of the I.D.Act were dismissed.

2. Brief facts relevant for deciding the present petition

are as under:-

The petitioners were working in the capacity of

Cabinmen under the respondent management. They claimed

overtime in their capacity as Cabinmen from the period w.e.f

8.4.1964 to 4.3.1980. The General Manager of the Railways was

the only Competent Authority to decide classification of

different workmen in the Railways as per existing rules. In the

said classification, the petitioners fell in the category of

continuous workers and the management could take only 8

hours per day duty from them. The Management had, however,

taken 12 hours duty from all these cabinmen from the period

w.e.f. 8.4.1964 to 4.3.1980 but denied the overtime allowance to

them in utter disregard of the rules and in violation of the law.

They infact started paying overtime w.e.f. 5.3.1980 but the

payment from 8.4.1964 to 4.3.1980 was withheld without any

cogent reasons. The petitioners filed separate claims under

Section 33-C(2) of the I.D. Act before the Labour Court for the

grant of overtime allowance for the period from 8.4.1964 to

4.3.1980. The said claims were rejected by the Labour Court.

Aggrieved with the said orders the petitioners preferred these

petitions.

3. Mr. Ashok Aggarwal, counsel for the petitioner

submits that all the petitioners were working in the capacity of

Cabinmen and had claimed enhanced over time for the period

from 8.4.1964 to 4.3.1980. Counsel further submits that all the

petitioners were continuous workers and as per Section 71-B of

the Indian Railway Act, 1890 any railway servant whose

employment is continuous shall not be employed for more than

54 hours a week in any month. Counsel thus states that since all

these petitioners had been working for more than 54 hours a

week, therefore, they were entitled to an overtime for the period

effective from 8.4.1964 to 4.3.1980 during which period they

had continuously been doing overtime work and thus entitled to

overtime allowance. Counsel for the petitioner has also placed

reliance on the judgment of this court in General Manager,

Northrn Railway Vs. Presiding Officer, Central

Government , Labour Court W.P. ( C ) 2690 to 2694 of

1984 and 2664 & 2665 of 1984 claiming that the issue so far

as classification of the category of the present workers as

"Essentially Intermittent" is concerned got finally settled and

based on the said decision, the services of the petitioners could

not have been considered as that of „Essentially Intermittent‟.

Counsel thus submits that once it was held by this court that

there was no valid classification of the petitioners in the

category of essentially intermittent workers, therefore, all these

petitioners ipso facto became entitled for an overtime allowance

claimed by them in their applications under Section 33 -C(2) of

the I.D. Act. Counsel for the petitioners also submits that it was

the statutory right of the petitioners to claim the over time

allowance which could not have been denied to them, treating

them as an „essentially intermittent‟ workers that too when the

controversy was put to at rest by the order of this court dated

30.4.1986.

4. Refuting the said submissions of Mr. Ashok Aggarwal,

counsel for the respondent submits that no fault can be found

with the findings given by the Labour Court in the impugned

order dated 7.2.1992 as the findings of the Labour Court cannot

be termed as illegal or perverse. Contention of the counsel for

the respondent is that firstly, the petitioners had claimed an over

time allowance for a period of about 16 years i.e. from 8.4.1964

to 4.3.1980 by filing the respective applications in the year 1983.

Counsel for the respondent also submits that petitioners failed to

place on record any documentary proof to show that they had

worked over time for the period from 1964 to 1980. Counsel for

the respondent further submits that respondent management

produced on record a letter dated 19.3.1963 to show that such

records were maintained by the respondent/management only

for a period of five years and not beyond the said period and

therefore, in the absence of any record, the claim for overtime

allowance could not have been considered pertaining to such a

long period even if the contention of the counsel for the

petitioners was accepted as correct. Counsel for the respondent

further submits that the opportunity to the petitioners was given

to raise an Industrial Dispute after seeking reference under

section 10 of the I.D. Act but such remedy was not availed by the

petitioners.

5. I have heard counsel for the parties at considerable

length and gone through the record.

6. The Labour Court had dismissed the applications

moved by these petitioners primarily on the ground that all these

petitioners failed to bring on record any sufficient material to

show that they had actually worked over time in excess of the

time permissible in the aforesaid rules. Indisputably, the

workmen never raised the dispute for over time allowance for a

period of about 16 years i.e. from 1964 to 1980 till the year 1983

when for the first time application under Section 33-C (2) of the

I.D. Act was preferred by them. Reference has also been made

by the Labour Court to the letter dated 19.3.1963 produced by

the management which permits the management to maintain the

over time allowance records only for a period of five years. In

this background, the tribunal observed that as to whether the

applicants had worked for excess hour duty for the claimed

period could not have been established by the workmen on the

basis of the evidence produced by them in these cases. The

Labour Court thus found that no inference can be drawn from

the evidence of the applicants regarding their entitlement to the

overtime allowance claimed by them for the period starting

from 1964, and therefore, in the absence of any such evidence

placed on record no relief that too under Section 33 -C(2) of the

I.D. Act could have been granted to the applicants/petitioners.

It is no more res integra, that under Section 33 -C (2) of the I.D.

Act, the workman is entitled to seek only that benefit which is

capable of being computed in terms of money and if any dispute

arises as to the computation of the amount than the remedy

available to the workman is to raise an Industrial Dispute by

seeking reference under Section 10 of the I.D. Act. In this regard

in Central Inland Water Transport Corpn. Ltd. v. Workmen,

(1974) 4 SCC 696 the Hon'ble Apex court explained the nature

of proceedings in following manner:

12. It is now well-settled that a proceeding under Section 33-C(2) is a proceeding, generally, in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to a workman from his employer, or if the workman is entitled to any benefit which is capable of being computed in terms of money, the Labour Court proceeds to compute the benefit in terms of money.

In Municipal Corpn. of Delhi v. Ganesh Razak, (1995) 1 SCC 235,

the Apex Court explained the scope of S. 33-C (2)in following terms:

12. The High Court has referred to some of these decisions but missed the true import thereof. The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under Section 33-C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33-C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the

interpretation is treated as incidental to the Labour Court's power under Section 33-C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution.

7. Undoubtedly, in the instant cases the petitioners had

claimed over time allowance for a period w.e.f. 8.4.1964 to

4.3.1980 i.e. for 16 years period that too by moving an

application in the year 1983 and curiously without placing any

material on record to support or substantiate the claim of

overtime of such a long period. The Labour Court in given

circumstances rightly dismissed the applications moved by the

petitioners giving opportunity for seeking relief under Section 10

of the I.D. Act. The order dated 30.4.1986 of this High Court in

W.P. (C ) No. 2690 to 2694 of 1984 (Supra) dealing with the

classification aspect would be of no help to the present

petitioners in view of the facts of the present case.

8. In the light of the above discussion, I do not find

there is any infirmity, perversity or illegality in the impugned

order. All these petitions are devoid of any merit and therefore,

the same are hereby dismissed.

May 11, 2009                               KAILASH GAMBHIR, J.
pkv