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Judgment
K.P. Sivasubramaniam, J.—The petitioner prays for the issue of a Writ of Certiorari to call for the records relating to the Award of the first
respondent dated 24.5.2002 in C.P.Nos.147 and 141 of 1999 and to quash the same. The management is the writ petitioner.
In the claim statement filed by the workers/second respondents in both the writ petitions, the petitioner had stated that the workers/second
respondents were working in the respondent''s Mill from 19.2.1979 and they used to work normally from 6.00 a.m to 6.00 p.m. It is further stated
that they have worked over time from 15.2.1996 to 31.5.1997 as detailed in the annexure. There are punch cards available with the management,
which if, produced can reveal the working time of the workers/second respondents. In spite of demand for the over time wages, the same was not
considered by the management. Therefore the second respondents prayed for computation of the money value of the benefits u/s 33-C(2) of the
Industrial Disputes Act, 1947.
In the counter filed by the respondent/the writ petitioner herein, the management contended that the claim was highly belated. The
workers/second respondents were never directed to do any over time and no order was issued for the payment of any over time. The employees
did not also do any over time work. It was further contended that the proceedings u/s 33-C(2) are in the nature of execution proceedings and no
claim for entitlement can be sought to be established in a proceeding u/s 33-C of the Act. A written submission was also filed by the management
contending that the salary of the workers/second respondents were above the statutory limit of salary and hence the employees were not workmen
within the meaning of Section 2(S) of the Act.
On a consideration of the said claims, the Labour Court came to the conclusion that there was sufficient proof to establish that the
workers/second respondents were doing over time work and hence granted the Award as prayed for. Hence, the above writ petition by the
management.
Learned counsel for the petitioner has raised the following contentions before this Court:-
i. The workers/second respondents are not workmen within the meaning of Section 2(S) of the Act in view of the fact that they were receiving
salary of more than Rs.1,600/- as prescribed under the Act.
ii. The provisions of Section 33-C(2) of the Act cannot be availed for deciding the disputed claims. The proceedings are in the nature of execution
proceedings and hence the Award of the Labour Court, in computing the overtime wages is beyond the scope of Section 33-C(2).
iii. The evidence relied upon by the Labour Court, viz., the Punch Cards, will not show the actual period during which the employees had worked.
The Punch Card cannot be treated as evidence of actual working hours. Learned counsel contends that the mere fact of an employee leaving the
premises at a particular point of time, cannot lead to the inference that he was working during the said period.
Learned counsel for the workers/second respondents contends that the issue that the employees were not workmen, was never raised before
the Court below. As regards the punch cards, the burden of proof to disprove the same lies on the management and no evidence at all had been let
in on behalf of the management to disprove the entries in the punch cards.
Learned counsel also contends that u/s 33-C(2) of the Act, it was open to the Labour Court to decide the issue on the available material and
unlike Section 33-C(1) no prior adjudication or settlement was necessary. Reliance was placed on some of the judgments of this Court and of the
Supreme Court to which reference will be made later.
I have considered the submissions of both sides.
In the context of whether employees are workmen within the meaning of Section 2(S) of the Act, a perusal of the counter affidavit shows that
there is no such pleading on behalf of the management. Even in the written submissions to which reference is made by the learned counsel, all that is
stated is that the employees are not workmen and that their salary is more than the limit prescribed u/s 2(S) of the Act and therefore, they are not
entitled to invoke the jurisdiction of this Court.
No further details are given as to how the employees are not workmen and as to what was the actual salary received by them. As stated
earlier, there is no pleading at all in the counter to the said effect nor was any evidence let in before the Labour Court to establish that the
employees were receiving more than Rs.1,600/- per month as salary. It is settled proposition of law that even assuming that there is any evidence,
no amount of evidence can be looked into on an issue over which there is no pleading by the petitioner. Therefore, I am unable to entertain the
objection of the learned counsel for the petitioner in the context of Section 2(S) of the Act. Submissions in the written arguments without either
pleading or evidence cannot be looked into.
On the issue that the punch cards cannot be treated as evidence of actual working hours also, the burden is heavy on the management. It is
seen that no oral evidence had been let in on the side of the management to establish that the employees did not work during the hours as could be
seen from the punch cards. I am inclined to hold that the punch cards establish prima facie evidence and if the same is to be disputed, the
management ought to have adduced proper evidence to disprove the same.
Learned counsel for the second respondents/workers have rightly relied on the judgment of the Supreme Court in Damodar Valley
Corporation v. Workmen 1973 L.I.C 1035 relying on the observation that the management had not adduced any evidence while it was their duty
to explain and give particulars regarding how and in what capacity the workers were employed and how they were not eligible for the allowance.
When the records produced by the management (Punch Card) itself disclose that the workers were on the work spot during the particular
period, the burden is on the management to prove that they were not doing any work. The management not having discharged the burden, I am
unable to entertain the said objection also.
Now coming to the issue as to whether the Labour Court was right in entertaining the claim u/s 33-C(2), it is seen that the conclusions of the
Labour Court are based on the punch cards produced by the management itself. Therefore, the decision of the Labour Court rested on the
admitted and undisputable materials. No further evidence was required to prove the mutual claim. In this context, learned counsel for the
petitioner/management relied on the judgment of the Punjab and Haryana High Court in Municipal Committee, Mansa vs. Presiding Officer,
Labour Court, Bathinda and another 1997 (1) SLR 422, in support of the contention that the scope of the provisions u/s 33-C(2) was limited and
cannot be enlarged to determine either the status of the workmen or the nature and duties of the workmen, and that the questions decided by the
Labour Court regarding the status of workman as a Clerk in that case, was held as not within the scope and ambit of Section 33-C(2).
Per contra, learned counsel for the second respondents refers to the judgment of the Andhra Pradesh High Court in Rajendranagar
Municipality v. B.V.Perraju 1995 L.I.C 2102. In that case, apart from upholding the claim of the employees for over time wages, the learned
Single Judge of the Andhra Pradesh High Court went into the details of the scope of Section 33-C(2). Learned Judge after considering the various
decisions, held that the fact that there was a dispute over the claims of the worker cannot mean that the claim petition cannot be entertained or
decided u/s 33-C(2). Learned Judge also held that it was not necessary that the existence of the right should have been admitted by the employer.
Further reference is made to the judgment of the Supreme Court in Chief Mining Engineer East India Coal Co. Ltd. Vs. Rameswar and
Others, , the Supreme Court after considering the scope of Section 33-C(2) held as follows in para-5 of its judgment:-
It is clear that the right to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided
for and must arise in the course of and in relation to the relationship between an industrial workman and his employer. Since the scope of sub
Section (2) is wider than that of sub-section (1) and the sub-section is not confined to cases arising under an award, settlement or under the
provisions of Chapter VA, there is no reason to hold that a benefit provided by a statute or a Scheme made thereunder, without there being
anything contrary under such statute or section 33-C(2), cannot fall within sub-section (2). Consequently, the benefit provided in the bonus scheme
made under the Coal Mines Provident Fund and Bonus Schemes Act, 1948 which remains to be computed must fall under sub-section (2) and the
Labour Court therefore had jurisdiction to entertain and try such a claim, it being a claim in respect of an existing right arising from the relationship
of an industrial workman and his employer. The contention that the Labour Court had no jurisdiction because the claim arose under the said
scheme or because the benefit was monetary or because it involved any substantial question between the Company and the workmen must, in view
of the said decisions, fail"".
Therefore the Supreme Court has categorically held that the Labour Court had jurisdiction to try the claim in relation to an existing right. The
scope of sub Section 2 of Section 33-C is wider than Sub Section (1) and the sub Section 2 was not confined to cases arising under an award,
settlement or under the provisions of Chapter VA.
For all the aforesaid reasons, I am inclined to hold that the claim of the petitioner in having been determined on admitted facts and admitted
materials produced by the management itself, it was competent that the Labour Court to have entertained the said issue.
The contention that Section 33-C is only in the nature of an execution proceeding resultant either on an Award or Settlement, will apply only to
claims u/s 33-C(1) and not u/s 33-C(2). With the result, I do not find any merit to interfere with the Award of the Labour Court and the same is
dismissed. It is now represented that the amount due to be paid to the workers had already been deposited before the Labour Court. The
respondents are entitled to withdraw the same.