D. Krishnan & ANR. Vs. Special Officer,
Vellore Coop. S.M.&
ANR. [2008] INSC 954 (16 May 2008)
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO ................/2008 (Arising out
of SLP (Civil) No. 17518/2006) D. Krishnan & Anr. ....Appellants Special
Officer, Vellore Coop.
S.M. & Anr. ..Respondents
HARJIT SINGH BEDI,J.
1. Leave granted.
2. Appellant Nos. 1 and 2 were
appointed to the respondent mill vide orders dated 4th April 1977 and 19th
February 1979 respectively. Both were promoted to various posts in the course
of their service and appellant No.2 was put in charge of the employees canteen
in the year 1991 whereas appellant No.1 given the same charge in February 1996.
The appellants claimed that as
they had put in overtime 2 work for a specific number of hours each day, they
were entitled to overtime wages for the said period. They repeatedly made
representations to the Labour Welfare Officer and to the employers claiming
payment, and though an assurance was held out to them that as a similar claim
by another employee, one Jayavelu, was pending before the Labour Court, the
decision in that case would also be made applicable to their case. It appears
that the Labour Court, in the meanwhile, rendered its decision in favour of Jayavelu
and he was ordered to be paid his overtime wages which were in fact defrayed.
Frustrated in their efforts to get the benefits given to Jayavelu, the
appellants filed an application under section 33 C(2) of the Industrial
Disputes Act, 1947 (hereinafter called the "Act") making a claim for
overtime wages. The respondent submitted its counter and took a specific plea
that the appellants had not been directed to do any overtime work and as a
matter of fact they had never done so. It was also pleaded that Jayavelu's case
had no similarity vis-`-vis the case of the appellants and that proceedings
under section 33 C(2) being in the 3 nature of execution proceedings, the
Labour Court could not have, under this jurisdiction, determined the rights of
the parties, as was required in the present case. In the written submissions
filed on behalf of the respondents, a specific plea was also taken that the
appellants were, in fact, Managers and not workmen as the salary that they were
drawing was more than the limit prescribed under section 2(a) of the Act and
the Labour Court for this additional reason as well, had no jurisdiction in the
matter.
The Labour Court in its award
dated 24th May 2002 observed that only documentary evidence had been submitted
by the parties and on an examination of the various documents on record, in
particular the time cards produced by the appellants and the various
representations made by them calling for overtime wages, held that the
appellants had indeed worked overtime and were entitled to payment accordingly.
The plea of the respondent Management that the appellants were, Managers and
not workmen was repelled by observing that as the plea had not been taken in
the written statement and only in the 4 written submissions, it did not warrant
acceptance. The Court also held that though an application under section 33
C(2) of the Act was in the nature of an execution and a determination of a
claim could not be made thereunder, but as section 59 of the Factories Act 1948
provided for the payment of overtime wages and as the documents on record had
proved the performance of overtime work, the behaviour of the Management was
"reprehensible and was liable to be punished", more particularly, as
the award in the case of Jayavelu had become final and had not been challenged.
The application was accordingly allowed. The respondent Management thereupon
challenged the award in the Madras High Court. The High Court in its judgment dated
8th December 2003, dismissed the writ petition thereby confirming the award of
the Labour Court. The judgment of the learned Single Judge was challenged by
way of a writ appeal before the Division Bench of the High Court. The High
Court in its impugned judgment dated 2nd March 2005, observed that the reliance
of the Labour Court on documentary evidence alone, and that too in a case of 5
claim of overtime wages, was not tenable and that it was unusual on the part of
the respondents (appellants herein), being workmen not to enter the witness box
to substantiate their claim. The Division Bench also held that the punch time
cards which formed the basis of their case did not constitute sufficient proof,
as the burden of proof in such a matter rested on the person claiming overtime.
The Division Bench also observed that the specific stand of the respondent was
that the workmen had never been authorized by anybody to work overtime and for
this additional reason, the claim must fail. The Court finally concluded that
in the light of the settled position of law, proceedings under section 33 C(2)
of the Act could only be effective in case of a pre-existing right and as the
claim of the respondent workmen was disputed, this was not a matter for
decision under this provision. The writ appeal was accordingly allowed and the
judgment of the learned Single Judge and the award of the Labour Court were
quashed. The present appeal has been filed against this order of the High
Court.
6
3. Mr. Colin Gonsalves, the
learned senior counsel for the workmen-appellants, has submitted that though
proceedings under Section 33 C(2) of the Act were indeed in the nature of
execution proceedings but this provision also visualized some enquiry, be it a
casual one, and as the Labour Court and the learned Single Judge of the High
Court had taken a particular view on the evidence, the Division Bench ought to
have stayed its hands and not taken a different view. It has been pleaded that
there was a difference between the terminology of Sections 33 C(1) and section
33 C(2) inasmuch as section 33 C(1) dealt with money due to a workman from an
employer under a settlement or award etc., whereas section 33 C(2) was much
wider in its application and visualized an entitlement with respect to money
even if a pre-existing right was created by a Statute and as in the present
case, section 59 of the Factories Act
visualized payment of overtime wages, a simple enquiry under section 33 C(2) was
fully justified. In this connection, the learned counsel has placed reliance on
Chief Mining Engineer East India Coal Co.Ltd. vs.
7 Rameshwar & Ors. (1968) 1
SCR 140. He has also pleaded, that even assuming for a moment, that there was
some evidence to raise a suspicion that the appellants were Managers and not
workmen, the dominant purpose of their employment had to be seen and the
dominant purpose being that of workmen, even if they were delegated some minor
managerial activities, would not change the nature of their appointment. It was
also submitted that all the judgments cited by the Division Bench pertained to
cases where the workmen claimed "equal pay for equal work" and which
did involve the determination of a right, but in the present case, keeping in
view the provisions of Section 59 of the Factories Act,
and the dominant purpose of the employment of the appellants, the aforesaid
judgments were not applicable.
4. Mr. Dayan Krishnan, the learned
counsel for the respondents has, however, disputed the claim of the appellants
and has referred to the counter affidavit and the written submissions filed
before the Labour Court. It has been contended that in order to raise a claim
for overtime 8 wages, it was essential that the overtime work should be
authorized by a competent authority and no such authorization being on record,
the claim under section 59 of the Factories Act
was not tenable. It has also been pleaded that the proceedings under section 33
C(2) were in the nature of execution proceedings and no determination of a
right could be made and for this submission the learned counsel has placed
reliance on Municipal Corporation of Delhi vs. Ganesh Razak & Anr. (1995) 1
SCC 235 and
4. We have considered the
arguments advanced by the learned counsel for the parties. The fact that
proceedings under Section 33 C(2) are in the nature of execution proceedings is
in no doubt, and such proceedings presuppose some adjudication leading to the
determination of a right, which has to be enforced. Concededly there has been
no such adjudication in the present case. It will be seen that the reliance of
the appellant-workmen is exclusively on documentary evidence placed on record
which consisted primarily of the punch time cards and the representations 9
that had been filed from time to time before the respondents. It is also true
that the claim raised by the appellants had been hotly disputed by the
respondents.
The question that arises in this
situation is whether reliance only on the documentary evidence was sufficient
to prove the case. We are of the opinion that the reference to Municipal
Corporation's case (supra) is completely misplaced as in that matter, the fact
that different categories of workers were doing identical kind of work was
virtually admitted but different scales of pay were nevertheless being paid to
them. It is also relevant that oral evidence had been adduced by the workmen to
supplement the documentary evidence and it was in that situation that the Court
felt that an application under section 33 C(2) was maintainable. We find that
the claim by the appellants herein has been disputed from the beginning and that
the documents filed by the appellants themselves suggest that they were unsure
of their own status. We have also perused the representations which have been
filed as additional documents. A perusal of the 10 letter dated 10th February
1996 from S.Karuthiah Pandian, Special Officer shows that the appellant
D.Krishnan was being posted as a Canteen Manager. The subsequent letters dated
20th May 1996, 20th January 1997, 20th February 1997, 15th April 1998 and 6th
August 1998 were all written by the appellant D.Krishnan identifying his post
as that of Manager of the canteen and in the body of the last letter, a
specific plea has been made that amongst the several duties entrusted to him,
he had to instruct 4 workers to come in the morning, to prepare breakfast and a
complaint that on one particular day, one C.
Uttharakumar, a Clerk working
under him had refused to follow his orders. We also find similar letters
written by the second appellant, K. Shanmugam and they too are on the record as
additional documents. We are, therefore, of the opinion that in the light of
the categorical statements time and again in the very documents relied upon by
the appellants in support of their case, that they were, prima- facie, Managers
and it would, therefore, be beyond the 11 jurisdiction of the Labour Court to
determine their status in proceedings under Section 33 C(2) of the Act.
6. In this view of the matter, we
find that the judgment reported in Municipal Corporation's case (supra) was
clearly applicable to the facts of the present case. In this case, it was
observed that:
"In these matters, the claim
of the respondent-workmen who were all daily- rated/causal workers, to be paid
wages at the same rate as the regular workers, had not been earlier settled by
adjudication or recognition by the employer without which the stage for
computation of that benefit could not reach. The workmen's claim of doing the
same kind of work and their entitlement to be paid wages at the same rate as
the regular workmen on the principle of "equal pay for equal work"
being disputed, without an adjudication of their dispute resulting in
acceptance of their claim to this effect, there could be no occasion for
computation of the benefit on that basis to attract Section 33-C(2).
The mere fact that some other
workmen are alleged to have made a similar claim by filing writ petitions under
Article 32 of the Constitution is indicative of the need for adjudication of
the claim of entitlement to the benefit before computation of such a benefit
could be sought. Respondents' claim is not based on a prior adjudication made
in the writ 12 petitions filed by some other workmen upholding a similar claim
which could be relied on as an adjudication enuring to the benefit of these
respondents as well.
The writ petitions by some other
workmen to which some reference was casually made, particulars of which are not
available in these matters, have, therefore, no relevance for the present
purpose. It must, therefore, be held that the Labour Court as well as the High
Court were in error in treating as maintainable the applications made under
Section 33-C(2) of the Act by these respondents.
In Brijpal Singh's case (supra),
this is what the Court had to say:
"It is well settled that the
workman can proceed under Section 33-C(2) only after the Tribunal has
adjudicated on a complaint under Section 33-A or on a reference under Section
10 that the order of discharge or dismissal was not justified and has set aside
that order and reinstated the workman. This Court in the case of Punjab
Beverages (P) Ltd.
vs. Suresh Chand held that a
proceeding under Section 33-C(2) is a proceeding in the nature of execution
proceeding in which the Labour Court calculates the amount of money due to a
workman from the employer, or, if the workman is entitled to any benefit which
is capable of being computed in terms of money, proceeds to compute the benefit
in terms of money. Proceeding further, this 13 Court held that the right to the
money which is sought to be calculated or 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 the industrial workman, and his employer."
7. Mr. Gonsalves, has, however
urged that a pre-existing right could also emanate from a statute, in this case
from Section 59 of the Factories Act,
which provided for the payment of overtime wages and in this view of the
matter, all that the Labour Court was called upon to do was to make a
calculation of the amounts due to the appellants. The facts of the case are,
however, not as clear cut and dried, as has been contended. The Division Bench
has observed that though section 59 of the Factories Act
undoubtedly provided for extra payment as overtime wages, but according to Rule
78B of the Tamil Nadu Factories Rule, 1950, only an employee authorized to work
overtime by an overtime slip would be entitled to claim an overtime allowance.
The specific case of the respondent-Management, which has not been contested 14
by the appellants even during the course of the arguments before us, is that no
such slips had ever been issued.
Additionally, we are of the
opinion that in the absence of any supporting oral evidence by the workmen
which would also result in their cross-examination, a mere reliance on the
documents filed by them is insufficient for determining the factual basis of
the issues involved, in proceedings under Section 33-C(2) of the Act. In this
view of the matter, Mr.
Gonsalves's argument based on
Rameshwar's case (supra) or the scope and ambit of Section 33 C(1) vis-`-vis
Section 33 C (2), is also unacceptable.
8. Mr. Gonsalves has finally
submitted that in the light of the judgment of this Court in Damodar Valley
Corporation vs. Workmen (1974) 3 SCC 57 and State of Karnataka &
Ors. vs. C.Lalitha (2006) 2 SCC
747, an order made by a Court was required to be made applicable to all those
similarly circumstanced and as Jayavelu, who was identically placed, had been
granted the benefit of overtime wages by the Labour Court, the appellants too
were entitled to the same relief.
This submission is however not
acceptable on account of the 15 lack of particulars with respect to Jayavelu's
matter. It is, thus, not possible to evaluate the matter as being identical on
facts. We, thus, find no merit in the appeal. It is accordingly dismissed, with
no order as to costs.
.....................................J.
(TARUN CHATTERJEE)
.....................................J.
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