IN THE COURT OF DR. [ENTITY], PRESIDING OFFICER, LABOUR COURT NO. IX, KARKARDOOMA COURTS, DELHI [CASE NUMBER] UNIQUE ID NO. 02402C0318822009 BETWEEN THE APPLICANT Sh. [ENTITY], S/o Sh. Ratan Chand, C/o Shops & Commercial Workers Union (Regd.), T551, Gali Punjabi wali, Factory Road, Nabi Karim, New Delhi 55. AND THE MANAGEMENT OF M/s. Premier Colour Cartoon Pvt. Ltd., A82/3, Wazirpur Industrial Area, Ashok Vihar, Delhi 52. Date of Institution : 23.10.2009 Date on which order on application reserved : 18.10.2011 Date of passing order on application : 20.10.2011 ORDER
1. The workman/applicant (in short called as workman) filed an Application before this court u/[SECTION] of [ACT] (in short [ACT]). This application is to be decided by this order.
2. The main facts as mentioned by the workman in this application are to the effect that he had been working regularly with the management since 22.04.2001 at the post of 'Assistant Machineman' drawing last wages @ Rs. 4300/ per month; that he had been working honestly and sincerely with the management during the tenure of his service; that when he demanded certain legal facilities due to him from the management, it became annoyed and illegally terminated his services w.e.f. 15.12.2006 without any justified reasons; that an Industrial Dispute (in short [CASE NUMBER] was decided earlier pertaining to the dispute [CASE NUMBER] raised by the workman and it was decided in favour of the workman and against the management vide order dt. 17.01.2008 passed by Ld. Predecessor of this court; that by that award, the workman was entitled for reinstatement with full back wages and other consequential benefits as per law; that management paid Rs. 76,253/ to the workman towards his dues w.e.f. 01.11.2006 to 23.04.2008 through banker's cheque; that the entire amount as per award has not yet been paid from the management side to workman side; that the total said amount comes to the extent of Rs. 1,04,812/ as per details given in para 8 of the statement of claim. Lastly, a prayer has been made directing the management for making payment of such amount to workman herein as per rules.
3. The averments of the statement of claim were strongly denied in the reply/written statement (in short called as reply) filed on behalf of the management.
4. It has been mentioned in the reply, inter alia, that this court has no jurisdiction to try this application u/[SECTION] of [ACT]; that there was no existing right in favour of the workman and against the management pertaining to this matter; that the workman has not come before this court with clean hands; that he has already received his entire amount in sum of Rs. 76253/ vide banker's cheque in terms of the award dated 17.01.2008; that nothing remained due to him thereafter against the management; that there is no prior recognition by the management in favour of the workman of any dues as mentioned in this claim petition nor there is any prior adjudication for such dues in favour of the workman and against the management by any competent forum. Lastly, a prayer was made for dismissal of his application.
[CASE NUMBER]
5. In the rejoinder filed to reply of management, averments made in the statement of claim of the workman were reiterated and those made in the reply of the management were denied.
6. On the basis of pleadings of the parties, following issues were framed in this case on 17.02.2011:
1. Whether the petition of the workman is maintainable u/[SECTION] of [ACT]?
2. To what amount, if any, the workman is entitled to receive from the management?
7. From the side of the workman, he himself examined as WW1 and also filed his affidavit as Ext. WW1/A on record and then evidence of the workman was closed.
8. From the side of the management, MW1 Sh. [ENTITY] was examined who also filed his affidavit Ex. MW1/A on record in support of the contentions of the management and then the evidence of the management was also closed.
9. Oral final arguments were heard from both sides which were almost the repetitions of averments of pleadings of both the sides on record.
10. During the course of oral final arguments, Ld. ARW relied upon an authority of Hon'ble Delhi High Court namely [PRECEDENT] decided by Hon'ble Delhi High Court on 13.08.2009 in W.P. (c ) no. [SECTION]41/2009, in support of the contentions of the workman.
11. On the other hand, Ld. AR for management relied upon authority of the Hon'ble Supreme Court of India namely MCD vs. [ENTITY] & Another J.T. 1994 (7)SC 476 in support of the contentions of the management.
12. I perused the entire judicial file minutely and my issuewise [CASE NUMBER] decision is as under: ISSUE NO. 1:
13. In my considered opinion, the primary burden of proof of this issue was upon the workman.
14. In coming to this conclusion, I also find support from an important judgment of Hon'ble Delhi High Court given in the case of UCO Bank vs. Presiding Officer & Another 1999 V AD (Delhi)
514. In para 13 of this judgment, Hon'ble Delhi High Court held mainly to the effect that principles regarding burden of proof are stipulated in [SECTION] of [ACT] (in short [ACT]) and that [SECTION] of [ACT] were relevant on his aspect and the Hon'ble Delhi High Court further held in this judgment that General Principal, which is laid down in these Sections, particularly under [SECTION] and [SECTION] of [ACT] was that he who asserts must prove i.e. burden of proof is the obligation to adduce evidence to the satisfaction of the Tribunal or Court to establish the existence or nonexistence of a fact contended to by a party. It was further held in his judgment that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it, for a negative is usually incapable of proof.
15. On this point, I, further find support from an important judgment of Hon'ble Allahabad High Court on this point given in the case of [PRECEDENT]. The Hon'ble High Court held in para 11 of this judgment mainly to the effect that [SECTION] of [ACT] postulates that whoever desires any court to give judgment as to any legal right or liability dependent [CASE NUMBER] on the existence of facts which he asserts, must prove that those facts exist. It was further held that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Reference was also made by the Hon'ble High Court to the provisions of [SECTION], [SECTION] and [SECTION] respectively of the [ACT] pertaining to burden of proof in such like cases.
16. Before proceeding further with this issue, I refer to provisions of [SECTION] of the [ACT] which are reproduced below for quick reference: "33C. Recovery of money due from an employer (1) (2)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 to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.] (3) (4)"
17. On this point, I also refer to judgment of Hon'ble Supreme Court of India on this point given in [ENTITY]'s Case (Supra). Para 12 of this judgment is to the following effect: "The High Court has referred to some of these decisions but missed the true import thereof. The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under [SECTION] of [CASE NUMBER] the Act. The labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under [SECTION] of the Act. It is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power under [SECTION] like that of the Executing Court's power to interpret the decree for the purpose of its execution."
18. Now turning to evidence of workman on record pertaining to this issue, he admitted in his crossexamination, interalia, that it was correct that he received Rs. 76253/ from the management vide banker's cheque before labour office; that the management offered him to join duties; that it was correct that he was getting his salary on wages register; that he did not lodge any complaint regarding nonpayment of salary by the management within time.
19. I have also seen mark 'P' put on record vide which the Deputy Labour Commissioner concerned made an observation at the end of this document that the workman got received Rs.76253/ from the management in compliance to award dated 17.01.2008 and that a fresh dispute arose between the parties herein thereafter. From this document namely Mark 'P' coupled with own admissions of the workman in his crossexamination to the above effect and further coupled with other material on record, I am of the considered opinion that the award dated 17.01.2008 passed by Ld. Predecessor of this court stands fully satisfied by the management by way of payment of Rs. 76253/ to the workman from the management side. During the course of oral final arguments from both sides, it was submitted from both sides that a fresh industrial dispute has been raised by the workman for payment of dues after settlement of [CASE NUMBER] award dated 17.01.2008 which is reportedly not yet decided either way.
20. In view of the above mentioned reasons, I am of the considered opinion that the present claim petition appears to have been filed by the workman seeking claim of dues from the management regarding which there does not appear to be either any prior adjudication in favour of the workman and against the management or any prior recognition of any of these dues by the management side in favour of the workman. Hence, the workman is not found entitled to claim such dues from the management in the present facts and circumstances of this case and as per mandate of [SECTION] of [ACT] and further as per mandate of [ENTITY]'s case (supra) which has been heavily relied upon from the management side in support of its contentions. The workman has miserably failed to satisfy this court by way of any cogent evidence, either oral or documentary, to the effect that this present claim petition is maintainable u/[SECTION] of [ACT] for the dues claimed in it against the management.
21. With due respect, the authority relied upon by the workman in support of his contentions pertaining to [PRECEDENT]'s case (supra) is not found helpful to the workman at this stage because to my considered view, the facts and circumstances of the instant case are quite different from the facts and circumstances of the cited decision on behalf of workman. On the basis of above mentioned discussion, I am of the considered opinion that the workman has miserably failed to prove issue no. 1 in his favour. Hence, this issue is decided against the workman and in favour of the management.
[CASE NUMBER] ISSUE NO. 2 :
22. In view of the findings of this court on issue no. 1 to the above effect, the workman is not found entitled to receive any amount from the management pertaining to this matter. Hence, this issue is also decided against the workman and in favour of the management.
RELIEF :
23. In view of the findings of this court on issue nos. 1 and 2 above, the claim of the workman herein is not found maintainable u/[SECTION] of [ACT] and he is not found entitled to claim any relief in this matter against the management.
24. The application under discussion is disposed of in view of the above order. No order as to costs. Judicial file be consigned to Record Room as per rules.
Announced in the open court today (DR. [ENTITY]) i.e. on 20.10.2011 Presiding Officer Labour Court No. IX Karkardooma Courts, Delhi [CASE NUMBER]