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Judgment
1 The appellant has filed this appeal under clause 15 of the Letters Patent challenging order dated 09.05.2019 passed by learned Single Judge
dismissing Special Civil Application No.8881 of 2019.
2 In the written statement filed before the Labour Court, Rajkot in Central Recovery Application No.3 of 1993 filed by the workman it was
specifically opposed that the applicant â€" workman had not submitted his statement of claim or calculation for specific amount showing the specific
sum of hours on the particular days showing overtime if performed by the appellant, to which, the Labour Court concluded as under:
“4 I heard the arguments of the parties. The learned counsel for the applicant referred Gujarat Water Supply and Sewerage Board and others,
2000 Lab. I.C.3535 Guj., wherein the Gujarat High Court has held that the claims of the workman for overtime wages under Minimum Wages Act is
not a new right or entitlement. It is a preÂexisting statutory right of the workman. The Labour court has jurisdiction to entertain and examine such
claims. The Labour court in the present case has exercise its powers under Section 33(c) applying his mind and has given the reasons in support of its
conclusion which was findings of facts based on legal evidence.
5 But the Gujarat High Court in Gujarat Water Supply and Sewerage Board V/s Ketanbhai Kinkare Pandya, Amreli, 2003 III CLR 306, has held that
the Labour Court as well as the Learned Single Judge of the High Court errored for granting claim for overtime wages in the absence of adjudication
by the competent authority as there was a bonaÂfide dispute on overtime wages. Similarly, The Gujarat High Court in Assistant General Manager V/s
Rajender Kaur 2012 III CLR 81, has held that the proceedings under Section 33(c)(2) of the Industrial Disput4s Act is in the nature of execution
proceedings wherein the claims by way of settlement and/or benefits for the workman admitted by the employer or adjudicated resulting into the
award can be entertained.
6 The Delhi High Court in Vice Chancellor V/s Dalchand, 2018 LLR Page 16, has held that the jurisdiction of the Labour Court / Industrial Tribunal
under Section 33(c)(2) of the Industrial Disputes Act, 1947, is akin to that of an executing Court and that the sine qua non for the exercise of such
jurisdiction is the prior existence of an adjudicatory resolution determining that the entitlements of the workman concerned, to certain moneys or
benefits. The Labour Court, ex3rcising jurisdiction under Section 33(c)(2) is, applying the law laid down in these decisions, not empowered to act as an
original court adjudicating on the entitlement the workman to the moneys claimed by him, but can only act as as executing court, executing the right of
the workman, the entitlement where to stands adjudicate a priori.
7 Thus in the light of the aforesaid judgments, the application is not maintainable because the application is not maintainable because the application is
not supported with any order or award of the appropriate Court or Tribunal. It is true that the opposite party has admitted that he workman /
application did overtime but explained that he was given compensative leave in lieu of overtime.
Thus the issue of overtime has been disputed, therefore, adjudication in terms of money regarding overtime was essential for maintainability of the
application.â€
3 Upon challenge, the learned Single Judge, by relying on such clear findings and reasoning of labour Court, held in paras 3 to 7 as under:
“3. It is misconceived to argue that an answer to the suggestion made to the witness evidenced admission that overtime wages were not paid to the
workman. Only suggestion was that he has not been given the wages for the overtime and such a suggestion was accepted. In the opinion of this
Court, reply to such a suggestion would not amount to admission of the fact that the workman had worked overtime.
In the recovery proceedings, it was obligatory for the workman to quantify his entitlement; in the instant case, no such quantification was made and
thus, assuming that application under section 33(C)(2) was maintainable, in absence of necessary details, no orders thereon were possible.
As to the scope of section 33C, it has been settled by now that jurisdiction under the said provision is not akin to the one under section 7 or 10 of the
I.D.Act. While sections 7 and 10 focus on adjudication of the rights, section 33(C) focuses on recovery on the basis of the rights already adjudicated
or the entitlement of which is not disputed or cannot be disputed. In the instant case, the plea by the respondent in the written statement that petitioner
was compensated by compensative leave, was advanced which was not denied and thus, the matter required adjudication and would not fall for
consideration under section 33(C)(2) of the I.D.Act.
Learned counsel for the petitioner has sought reliance on order passed in Central Recovery Application No.3 of 1993 below Exh.50 which was
concededly quashed by the High Court in Special Civil Application No.7067 of 2001 while remanding the matter to decide the issue of jurisdiction.
Thus, the order which came to be quashed cannot be placed reliance on in the present proceedings.
It is submitted that without complying with the said order in the writ petition, the Court below rendered the decision on merits. The submission
seems to be misconceived inasmuch as, it is clearly held in para 7 of the impugned order that the dispute involved in the case would require
adjudication which clearly means that Court has refused to exercise the jurisdiction under section 33(C)(2) since it did not possess.â€
4 Assailing the above order passed by the learned Single Judge, Mr. Gogia, learned counsel for the appellant, would contend that an application Exh.50
was filed by the workman under Section 33(C)(3) of the Industrial Disputes Act, 1947 to appoint a Commissioner to compute amount or money value
of overtime work performed by the workman and the above fact remained undisputed. Learned counsel for the appellant relying on sub section (3)
of Section 33(C) of the Act submitted that when Labour Court was satisfied for appointment of Commissioner, who was empowered to take an
exercise of taking evidence as may be necessary and submit the report and based on the above, the Labour Court can determine the amount and other
such circumstances of the case, the above aspect has not been considered by the Labour Court as well as the learned Single Judge and submitted that
the impugned orders are required to be quashed and set aside. Learned counsel for the appellant further referred to other such decisions and
admission on the part of the Principal of the respondent school vide Exh.46 wherein cross examination reveals that the working hours of the school
is from 8.00 am to 4.00 pm and the workman was performing duties, in all, for 16 hours and no amount of overtime was paid for 8 hours.
We have not been persuaded by the above submissions canvassed by learned counsel for the appellant in view of catena of decisions rendered by this
Court and the Apex Court to which Labour Court made reference and admittedly the overtime wages was neither ascertained nor established and
based on some evidence which has surfaced on record of the crossÂexamination of Principal of School, more particularly, when compensatory leave
in lieu of extra time was given, we find no substance in this appeal.
Accordingly, this appeal stands dismissed.