Vishnu Kumar Mangla vs Dhaneshwar Gupta And Sons
2009 Latest Caselaw 3858 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P.(C) No. 11814/2009

%                 Date of Decision: 18 September, 2009


# VISHNU KUMAR MANGLA                      ..... PETITIONER
!            Through: Mr. Anuj Aggarwal, Advocate.

                                VERSUS

$ DHANESHWAR GUPTA & SONS                             .....RESPONDENT

^           Through: NEMO.

CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper 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 the Digest?NO

S.N.AGGARWAL, J (ORAL) The workman in this writ petition seeks to challenge an order dated

17.04.2008 in L.C.A. No. 08/2007 passed by the Labour Court by which

his claim under Section 33-C (2) has been rejected.

2. Heard on admission.

3. The petitioner was working as a part-time employee with the

respondent management since 10.04.1986. He became a full-time

employee with the respondent since April 1998 and his last drawn wages

were Rs. 12,000/- per month. He alleged his termination from the service

of the respondent w.e.f. 30.09.2006. After he was allegedly terminated

by the respondent management, he filed a Legal Claim Application being

L.C.A. No. 08/2007 under Section 33-C (2) before the Labour Court and

claimed an amount of Rs. 2,05,385/- (Rs. 1,32,000/- on account of earned

wages for the period from 01.11.2005 to 30.09.2006; Rs. 55,385/- on

account of gratuity and Rs. 18,000/- on account of bonus). The

respondent in its written statement to the claim application of the

petitioner denied the applicability of the Payment of Gratuity Act as well

as the Payment of Bonus Act to the respondent establishment stating

that these Acts were not applicable to its establishment as only three

employees were working with it. The respondent also denied the claim of

the petitioner for earned wages for the period from 01.11.2005 to

30.09.2006 on the ground that the petitioner absented himself from

service w.e.f. 01.11.2005 and, therefore, he was not entitled to the

wages claimed by him in L.C.A. No. 08/2007.

4. There is a dispute between the parties on both these counts

regarding right of the petitioner for earned wages and also for payment

of gratuity and bonus to him. The petitioner says that he had worked

with the respondent establishment for the period from 01.11.2005 to

30.09.2006 and, therefore, he is entitled to wages for the said period

earned by him. The management denies the said fact and claims that

the petitioner had abandoned the service of the respondent management

w.e.f. 01.11.2005. This certainly gives rise to a dispute as to whether the

services of the petitioner were terminated by the respondent

management as alleged by him or whether he had abandoned the

service of his own. This dispute by no means could have been

entertained in a claim application under Section 33-C (2) of Industrial

Disputes Act, 1947. This dispute could have been decided only by way of

an independent industrial dispute under Section 10 of the Industrial

Disputes Act, 1947. In the same way, since the management disputes

the applicability of the Payment of Gratuity Act and the Payment of Bonus

Act to its establishment, the question whether the petitioner is entitled

for payment of gratuity and bonus also gives rise to a dispute which can

be decided only by way of an industrial dispute under Section 10 of the

Industrial Disputes Act, 1947. The provisions of Section 33-C (2) are in

the nature of execution and presupposes an existing right in favour of the

workman which can be passed on (i) adjudication, (ii) settlement and (iii)

service conditions. Since in this case, there was no adjudication or

settlement and as no service conditions were either pleaded or proved by

the petitioner before the Court below, his alleged claim under Section 33-

C (2) could not have been granted unless the dispute with regard to the

above was adjudicated.

5. In view of what has been stated above, I do not find any infirmity,

illegality or perversity in the impugned order that may call for an

interference by this Court in exercise of its writ jurisdiction under Article

226 of the Constitution. This writ petition, therefore, fails and is hereby

dismissed in limine.

SEPTERMBER 18, 2009                                    S.N.AGGARWAL, J
'BSR'