Anu Shenny vs Labour Court, Ernakulam District & Ors.

The Petitioner is the Opposite Party/Management in C.P.No.32/2019 filed by the Respondent No.2/Workman under Section 33-C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the ‘ID Act’), on the files of the Labour Court, Ernakulam. The Petitioner has filed this Writ Petition challenging Ext.P22 Order allowing the Claim Petition filed by the Respondent No.2, declaring that the Respondent No.2 is entitled to recover an amount of Rs.3,58,782/- from the Petitioner towards arrears of overtime wages and directing payment of the same within three months from the date of Ext.P22 Order, failing which interest at the rate of 9.5% per annum is ordered from the date of the Claim Petition (25.06.2019).

I heard the learned Counsel for the Petitioner, Sri. K.A. Hazan, and the learned Counsel for the Respondent No.2, Sri. Manu Govind.

The learned Counsel for the Petitioner contended that the Labour Court has no jurisdiction to consider the claim of the Respondent No.2 towards arrears of overtime wages as the Petitioner had disputed the entitlement of the Respondent No.2 for overtime wages. The Petitioner has specifically denied the claim of the Respondent No.2 that he had worked overtime in the establishment of the Petitioner. The Respondent No.2 claimed overtime wages for a period of nearly six years on the allegation that he worked overtime for twelve hours without any break. The Labour Court granted overtime wages even without excluding regular holidays and the festival holidays. The fixation of wages is also without any basis. The learned Counsel cited the decision of the Hon'ble Supreme Court in Municipal Corporation of Delhi v. Ganesh Razak and Another [(1995) 1 SCC 235], in which it is held that the jurisdiction under Section 33-C(2) of the ID Act is like that of an executing court; that without a prior adjudication or recognition of the disputed claim of the workmen to be paid at the same rate as the regular employees, proceedings for computation of the arrears of wages claimed by them on that basis is not maintainable under Section 33-C(2) of the ID Act; and that the Labour Court cannot adjudicate the dispute of entitlement or the basis of claim of the workmen. The learned Counsel cited the decision of this Court in KMJ Public School v. Ance [2020 (5) KLT 609] in which this Court held that when the disputed question is whether the workmen were the full-time regular employees or were working only for a few hours, the Labour Court cannot adjudicate on such issues under Section 33-C(2) of the ID Act. The learned Counsel cited the decision of the Hon'ble Supreme Court in Ravinder Singh v. Janmeja Singh and Others [AIR 2000 SC 3026] to substantiate the point that no amount of evidence can cure the defect in the pleadings. The learned Counsel cited the decision of this Court in D+H Solutions India Private Limited v. Jayakrishnan Ramachandran Nair [2026 (2) KHC 51] in which this Court held that a petition under Section 33-C(2) of the ID Act cannot be filed without prior independent adjudication of the claim by the Labour Court or Industrial Tribunal, as proceedings under this provision are execution like in nature and require pre-existing adjudicated rights or employer recognition of entitlement. The learned Counsel cited the decision of the Gujarat High Court in Gujarat Water Supply and Sewerage Board and Others v. Ketanbhai Dinkarray Pandya [2003 (7) SLR 458] in which the Gujarat High Court set aside the Order of the Labour Court allowing the claim for overtime wages on the ground that there is no adjudication by a competent court or authority when the claim was not admitted by the Management. The learned Counsel concluded his arguments praying to set aside Ext.P22 Order and to dismiss the Claim Petition filed by the Respondent No.2 before the Labour Court finding that the claim is not maintainable under Section 33-C(2) of the ID Act.

On the other hand, the learned Counsel for the Respondent No.2 contended that the Labour Court is perfectly justified in entertaining and allowing the claim of the Respondent No.2 for overtime wages. It is clear from Ext.P16 evidence of the Petitioner itself that it is an admitted fact that the Respondent No.2 had done overtime work in the establishment of the Petitioner. The Labour Court has considered the claim on the basis of the admitted facts and it did not involve any adjudication on disputed facts. The learned Counsel cited the decision of the Hon'ble Supreme Court in Central Bank of India Ltd. v. P.S. Rajagopalan [AIR 1964 SC 743] to elaborate the scope of jurisdiction under Section 33-C(2) of the ID Act. It is held in the said decision that Section 33-C(2) applies even if the right to benefit is disputed by the employer; that the Labour Court has jurisdiction to determine whether the workman has the right to receive benefit; and that the claim under Section 33-C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by Section 33-C(2). The learned Counsel contended that even if it is assumed that the Labour Court has made any adjudication as to the entitlement to the overtime wages, the said adjudication is only incidental to the main determination as to the question whether the Respondent No.2 is entitled to get overtime wages.

I have considered the rival contentions.

In view of the legal propositions laid down in the above decisions, it is well settled that there could not be any adjudication of rights in a proceeding under Section 33-C(2) of the ID Act. The proceeding under Section 33-C(2) of the ID Act can be resorted to only to enforce an established right. It is an admitted fact that the Respondent No.2 was the employee of the Petitioner during the relevant time. If the Respondent No.2 wanted to enforce his right to any normal benefit arising out of the employment, he can very well resort to the proceedings under Section 33-C(2) of the ID Act. But here the claim of the Respondent No.2 is for wages for overtime work. The Petitioner has not admitted that the Respondent No.2 had done overtime work in her establishment. So it is a matter to be proved by the Respondent No.2. The question whether the Respondent No.2 has proved that he had done overtime work or not is a matter that requires adjudication. Such adjudication is not an ancillary or incidental adjudication. Such adjudication is essential to establish the right of the Respondent No.2. If the Petitioner had admitted that the Respondent No.2 had done overtime work in her establishment, then of course, the Respondent No.2 could have resorted to the proceedings under Section 33-C(2) of the ID Act to claim any benefit out of the same. In such a situation, if a question arises as to the rate of wages entitled to the Workman, the same could be adjudicated by the Labour Court as an incidental or ancillary question.

The contention of the Counsel for the Respondent No.2 that the overtime work done by the Respondent No.2 is admitted by the husband of the Petitioner who was examined on behalf of the Petitioner as DW1. The specific case of the Respondent No.2 in Ext.P3 Claim Petition and in Ext.P4 Proof Affidavit is that he had been working continuously for 12 hours from 6 PM to 6 AM and thus doing 4 hours of overtime work. There is no admission of this claim in the evidence of DW1. The finding of the Labour Court in Ext.P22 Order is that the oral testimony of DW1 would show that the Respondent No.2 had been deputed for 14 hours from 5 PM to 7 AM in night shifts and he had been doing day shift from 7 AM to 5 PM and hence there is an admission by DW1 that the Respondent No.2 had worked overtime. First of all, there could not be any admission beyond the case of the Respondent No.2. Secondly, the evidence of DW1 is to the effect that the Respondent No.2 did not have work from 9 PM to 4 AM during the night shift and there were intervals during the day shift. The Labour Court acted illegally in selectively choosing parts of the evidence of DW1 to enter a finding in favour of the Respondent No.1. Such interpretation of the evidence of the parties to arrive at a finding on disputed facts amounts to adjudication, which is impermissible in the proceedings under Section 33-C(2) of the ID Act. Hence, the award of overtime wages to the Respondent No.2 on the basis of the above finding in Ext.P22 Order is unsustainable.

Accordingly, this Writ Petition is allowed, setting aside Ext.P22 Order and dismissing the Claim Petition No.32/2019 filed by the Respondent No.2 before the Labour Court, Ernakulam.