Fincap Financial Corporation Ltd vs Prem Singh & Another
2011 Latest Caselaw 2218 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision: 26th April, 2011

+                                 W.P.(C) 8344/2010

         FINCAP FINANCIAL CORPORATION LTD. ..... Petitioner
                      Through: Mr. Narendra Kalra, Advocate.

                                      versus

         PREM SINGH & ANOTHER                             ..... Respondents
                      Through: None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may             No
         be allowed to see the judgment?

2.       To be referred to the reporter or not?            No

3.       Whether the judgment should be reported           No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

CM No.5580/2011 (of the petitioner for preponing the hearing) & W.P.(C) 8344/2010.

1. The writ petition was filed in September, 2010 impugning the order

dated 6th May, 2010 of the Industrial Adjudicator under Section 33C(2) of

the Industrial Dispute Act, 1947 finding a sum of `1,03,430/- to be due

from the petitioner employer to the respondent workman on account of

overtime, earned leave, casual leave, bonus etc. during the period of

employment from 1st January, 1998 to 6th January, 2011.

2. The petition having been filed late was accompanied with an

application for condonation of delay.

3. The writ petition remained under objections and was filed and re-

filed repeatedly and came up first before this Court on 15th December,

2010 when none appeared for the petitioner and the same was re-notified

for 25th January, 2011.

4. On 25th January, 2011, the counsel for the petitioner sought time to

file a further affidavit for condonation of delay in filing the writ petition.

The matter was accordingly adjourned to 4th February, 2011 when again

request was made for adjournment and the matter was adjourned to 4 th

March, 2011. On 4th March, 2011, the presiding Judge was on leave and

the matter was adjourned to 6th July, 2011.

5. CM No.5580/2011 has been filed for preponing the date of hearing

contending that the respondent workman in the meanwhile had applied for

recovery under Section 33C(1) and in which proceedings Recovery

Certificate was issued and in execution whereof warrants of arrest of the

officials of the petitioner have been issued. It is further stated that the

petitioner has handed over a cheque dated 23rd April, 2011 of `1,03,430/-

to the SDM executing the Recovery Certificate. Though the application is

dated 15th April, 2011 but the same has also been got listed for the first

time today i.e. after the date of 23rd April, 2011 of the cheque. The counsel

for the petitioner however states that the SDM has been orally requested

not to present the cheque and the cheque has not been encashed till date.

6. Be that as it may, the counsel has also been heard on the writ

petition.

7. It is inter alia the case of the petitioner employer that the respondent

workman had earlier raised an industrial dispute with respect to the

termination of his employment and of which reference was made and

which was decided against the respondent workman and the writ petition

preferred by the respondent workman against the said award was also

dismissed. It is urged that thus the question of anything being due from

the petitioner to respondent workman does not arise.

8. It is not as if the Industrial Adjudicator while deciding the

application under Section 33C(2) was oblivious of the aforesaid fact. In

fact the respondent workman had in the proceedings under Section 33 C(2)

relied upon the certified copy of the written statement filed by the

petitioner in the said reference under Section 10 of the ID Act and in which

the employment of the respondent workman during the aforesaid period

from 1st January, 1998 to 6th January, 2001 was admitted.

9. Merely because the reference on the dispute as to termination has

been decided against the respondent workman would not come in the way

of an order under Section 33 C(2) with respect to dues of the period of

employment. The petitioner has also not chosen to place the award on the

reference or the order of this Court dismissing the writ petition

thereagainst in the paper book. Similarly, the written statement in the

award filed in the reference has also not been filed. Upon the same being

put to the counsel for the petitioner he contends that the same is not

disputed.

10. The counsel for the petitioner has next urged that the claim under

Section 33 C could have been made only within one year. Reference in this

regard is made to the proviso to Section 33C(1). However what was before

the Industrial Adjudicator was an application under Section 33C(2) and not

under Section 33 C (1) and there does not appear to be any such limitation

for an application under Section 33C(2). Moreover even if the proviso to

Section 33C(1) were to be held applicable, the same also provides for

entertaining the application even after one year for sufficient cause. In the

present case, considering that the dispute had been raised and in which had

the respondent workman succeeded he would have been entitled to all back

wages etc.; sufficient cause is found for not filing the application under

Section 33C(2) earlier.

11. Considering all the aforesaid facts particularly the delay at each

stage on the part of the petitioner, no case for entertaining the petition is

made out. The petition is dismissed in limine. No order as to costs.

The date of 6th July, 2011 is cancelled.

RAJIV SAHAI ENDLAW (JUDGE)

APRIL 26th ,2011 pp..