IN THE COURT OF SHRI NARINDER KUMAR ADDL. DISTRICT & SESSIONS JUDGE PRESIDING OFFICER : LABOUR COURT - XIX KARKARDOOMA COURTS : DELHI [CASE NUMBER] Unique Case ID No. 02402C0 058622014 Shri [ENTITY] S/o Shri Abdul Hanan C/o Readymade Garments Export Employees Union I441, Karampura New Delhi - 110 015 Claimant Versus M/S Adigear International A40, Mayapuri Industrial Area PhaseI, New Delhi - 110 064 Management Date of institution of the case : 11.2.2014 Date of passing the award : 14.7.2015 A W A R D Present claim under [SECTION] of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act'), came to be filed by the claimant on 11.2.2014 claiming earned wages for the months of December 2013 and January 2014 @ Rs.8008/, which were not paid by the management with interest, and litigation expenses. 2. The claim came to be opposed by the management by filing written statement denying that claimant is entitled to any such amount. One of the [CASE NUMBER] 1 of 6 preliminary objections raised by the management is on maintainability of claim, on the ground that only after adjudication of a complaint or on a reference, a claim U/[SECTION] of the Act is maintainable. Claimant did not file any rejoinder. 3. From the pleadings of the parties, following Issues were framed on 20.10.2014 : 1.
Whether the workman is entitled to the monetary relief as prayed for? OPW
2. Relief
4. The workman did not file his affidavit in evidence despite availing ample opportunities for the purpose and thus, failed to lead any evidence. The matter was listed for the first time for evidence of workman for 19.12.2014. Thereafter, vide order dt. 22.5.2015, matter was adjourned to 14.7.2015 and listed for WE by way of last opportunity, but neither claimant has himself come present nor led any other evidence. Hence, his evidence stands closed by order. Management has opted not to lead any evidence.
5. Heard. File perused.
ISSUE No. 1 :
6. Onus to prove this issue was upon the workman . By way of present claim U/[SECTION] of the Act, claimant has demanded earned wages for the month of December 2013 and January 2014 @ Rs.8008/ which were allegedly not paid by the management, but he has failed to lead any evidence. For want of any evidence, claimant cannot be held entitled to any money from [CASE NUMBER] 2 of 6 the management.
Case of claimant is that on 16.1.2014 management illegally terminated his services. He has not challenged the same.
[SECTION] of the Act reads as under: "Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government within a period not exceeding three months:
provided that where the presiding officer of a Labour Court considers it necessary or expedient so it do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit."
In case M/s [PRECEDENT], it was observed as under:
"But 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."
It is not competent to the Labour Court exercising jurisdiction under [SECTION] to arrogate to itself the functions of an industrial tribunal and entertain a claim which is not based on an exiting right but which may appropriately be made the subject matter of an industrial dispute in a reference under [SECTION] of the Act.
[CASE NUMBER] 3 of 6 It was further observed that "the workman, who has been dismissed, would no longer be in the service of the employer and though it is possible that on a reference to the Industrial Tribunal under [SECTION] the Industrial Tribunal may find, on the material placed before it, that the dismissal was unjustified, yet until such adjudication is made, the workman cannot ask the Labour Court in an application under [SECTION] to disregard his dismissal as wrongful and on that basis to compute his wages. The application under [SECTION] would be maintainable only if it can be shown by the workman that the order of dismissal passed against him was void ab initio. Hence it becomes necessary to consider whether the contravention of [SECTION] introduces a fatal infirmity in the order of dismissal passed in violation of it so as to render it wholly without force or effect, or despite such contravention, the order of dismissal may still be sustained as valid." In this regard, reference may also be made to decision in [PRECEDENT] it was held as under:
"The workman can proceed under [SECTION] only after the Tribunal has adjudicated, on a complaint under [SECTION] or on a reference under [SECTION], that the order of discharge or dismissal passed by the employer was not justified and has set aside that order and reinstated the workman".
"If an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, it would not be open to him to make a claim for the recovery of his salary or wages under [SECTION]. His demotion or dismissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal or demotion is unlawful and, therefore, the employee continues to be the workman of the employer and is entitled to the benefits due to him under a preexisting contract, cannot be made [CASE NUMBER] under [SECTION]."
It was further observed as:
"We would, however, like to indicate some of the claims which would not fall under [SECTION], because they formed the subject matter of the appeals which have been grouped together for our decision along with the appeals with which we are dealing at present. If an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, it would not be open to him to make a claim for the recovery of his salary or wages under [SECTION]. His demotion or dismissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal or demotion is unlawful and therefore, the employee continues to be the workman of the employer and is entitled to the benefits due to him under a preexisting contract, cannot be made under [SECTION]."
In this regard reference may also be made to decision in [PRECEDENT], [PRECEDENT]. In [PRECEDENT]; [PRECEDENT]; [PRECEDENT].
7. There is none to tell on behalf of workman if the claimant has filed any claim U/[SECTION] of the Act challenging termination of his services. In view of the well settled law on the point of maintainability of suchlike claim, present claim U/[SECTION] of the Act cannot be said to be maintainable, when the management denied the right/benefit claimed by the claimant and for want of [CASE NUMBER] 5 of 6 adjudication of right/benefit in a separate claim/reference U/[SECTION] of the Act. Present claim u/[SECTION] would have been maintainable only if it was firstly proved by the workman in the industrial dispute u/[SECTION] that the order of termination of his services passed by the management was void ab initio.
So, when the claimant is not entitled to any sum, as prayed, this issue is decided against the claimant.
ISSUE No. 2/Relief. :
8. In view of the findings under Issue No. 1 above, the claim of the claimant is dismissed and he is held not entitled to any relief.
File be consigned to Record Room.
ANNOUNCED IN OPEN COURT ON 14th day of July 2015 ([ENTITY]) Addl. District & Sessions Judge Presiding Officer, Labour CourtXIX Karkardooma Courts, Delhi [CASE NUMBER] 6 of 6