Jagbir Singh Bajwa vs Modistone Ltd.

Rajiv Sahai Endlaw, J.—The petition impugns the order dated 5th June, 2004 of the Labour Court dismissing the application of the Petitioner u/s 33C(2) of the I.D. Act, 1947 as not maintainable.

Notice of the petition was issued.

The Respondent has however failed to appear and was proceeded against ex parte. The counsel for the Petitioner has been heard.

The Petitioner was employed as the Territory Manager with M/s Bombay Tyres International Ltd. since taken over by the Respondent. The Petitioner in or about 1989 filed the application u/s 33C(2) of the Act claiming to be a workman and entitled to receive, pertaining to the period of his service with the Respondent, the monies/benefits mentioned in the Statement of Claim and seeking determination of the amount due to him and a direction to the Respondent to pay the same.

It was the case of the Petitioner in the Statement of Claim that a large sum of money had fallen due to him from the Respondent employer on the basis of the Monthly Quota Achievement Records for the period March, 1986 to November, 1986. It was pleaded that such amount of money had accrued to the Petitioner on account of declared Sales Incentive Scheme circulated and published by the employer and on the rates mentioned therein. The Petitioner in this regard also relied upon the letter of appreciation issued by the employer to him. It was further the case of the Petitioner that the employer had declared a lockout w.e.f. 29th November, 1986 and though the lockout was lifted prior to the filing of the application u/s 33C(2), the monies accrued to the Petitioner on account of the said Incentive Scheme had not been settled by the Respondent.

The Respondent contested the said application by contending that the Petitioner was not a workman; that he was employed at Chandigarh and the Labour Court at Delhi had no jurisdiction; that no scheme as Sales Incentive or otherwise was implemented and the allegations of the Petitioner were wholly misconceived and untenable and no amount towards Sales Incentive was due from the Respondent to the Petitioner. Needless to state, the Petitioner filed a rejoinder reiterating his claim.

The impugned order reveals that though a preliminary issue as to maintainability was framed but the application u/s 33C(2) was thereafter dismissed in default; upon restoration the Respondent was proceeded ex parte and as such the Petitioner was permitted to lead evidence and had led evidence.

Though the Respondent remained ex parte, the Labour Court relying on the Supreme Court decision in Municipal Corporation of Delhi Vs. Ganesh Razak and Another, dismissed the application on the ground that the power of the Labour Court u/s 33C(2) of the Act was in the nature of "execution" and does not extend to determination of the dispute of entitlement or the basis of the claim if there was no prior adjudication or recognition of the same by the employer. It was further held that where the very basis of the claim or the entitlement was disputed, the dispute was outside the scope of proceeding u/s 33C(2) of the Act. It was held that in the face of the denial by the Respondent of the Incentive Scheme, the petition was not maintainable.

The counsel for the Petitioner has at the outset contended that the Respondent having been proceeded against ex parte and having failed to even cross examine the Petitioner, the application ought not to have been dismissed.

There is no merit in the said contention. Merely because Respondent is proceeded against ex parte would not make a proceeding maintainable which otherwise is not maintainable.

I have perused the record of Labour Court requisitioned in this Court. In the Statement of Claim there is no reference to any document from which the claim of the Petitioner could be computed. The counsel for the Petitioner has referred to Inter Office Memo dated 8th April, 1986 recording Sales Incentive. The said document is unsigned. Similarly the Petitioner has filed a chart giving particulars of targets for sale and the sales achieved but the same is also unsigned.

The counsel for the Petitioner has drawn attention to page 205 of the Labour Court record which is a Statement of Emoluments paid or credited by the Respondent to the Petitioner for the earning year ended 31st March, 1986. From the same also, the Sale Incentive to which the Petitioner may have been entitled to from March, 1986 to November, 1986 cannot be deciphered. I have also perused the affidavit by way of evidence filed by the Petitioner before the Labour Court. From the statements therein also, no material from which the entitlement of the Petitioner to receive any money from the Respondent can be computed. The Petitioner in his affidavit by way of evidence has stated a sum of Rs. 16,485/- to be due to him towards Sales Incentive. However the Petitioner, to deduce the said amount has relied on several factors which are not decipherable from any document and as such no error can be found in the order of the Labour Court holding the petition to be not maintainable.

There is no merit in the writ petition; the same is dismissed. No order as to costs.