SCA/10380/2008 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10380 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= HABIB S HALANI - Petitioner(s) Versus S.G.S. INDIA LIMITED - Respondent(s) ========================================================= Appearance : MR TR MISHRA for Petitioner(s) : 1, None for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 13/08/2008 ORAL JUDGMENT In this petition, the petitioner has challenged the order dated 30.10.2007 passed by the labour court, Jamnagar in recovery application No.92 of 2000 whereby the labour court has rejected the recovery application preferred by the present petitioner. SCA/10380/2008 2/10 JUDGMENT Being aggrieved by the said order dated 30.10.2007, the petitioner is before this court. The petitioner approached the labour court by way of above referred recovery application with a claim that during tenure of his employment with the respondent, he was made to work overtime everyday and that he was required to put in work for almost 12 hours i.e. from 9.00 a.m. to 10.00 p.m. or 11.00 p.m. everyday and the respondent was not making payment for the said overtime work at double rate of his normal wages. Therefore, the petitioner preferred the said recovery application for claiming the payment of overtime work allegedly put in by him during tenure of his employment with the respondent. As per the discussion in the award, it transpires that the petitioner claimed Rs.72,908/- towards unpaid amount of overtime wages for the period from April, 1990 to April, 1996. For such claim, the petitioner preferred the recovery application in 2000. After considering the application, the evidence of the petitioner and the respondent and the scope of section 33C(2) as well as the material available on record, the labour SCA/10380/2008 3/10 JUDGMENT court rejected the recovery application for diverse reasons including the reason that in its view, based on the evidence available on record, the petitioner had failed to establish his claim and that the claim made by the petitioner was outside the scope of section 33C(2). The labour court also found that the claim and conduct of the petitioner was not acceptable because the petitioner had come out with the claim after having tendered resignation and cessation of his employment pursuant to availing benefit under VRS. The labour court also arrived at the conclusion that the petitioner had failed to prove his allegation and assertions in establishing his claim. Upon such findings, the labour court rejected the recovery application. Mr. Mishra appears for the petitioner. At the outset, he submitted that in view of the legal position settled by virtue of the recent judgment of the Hon'ble Apex Court, it is true that the nature of claim, which was made by the petitioner before the labour court, would not be maintainable and would not fall within the purview of section 33C(2), however, SCA/10380/2008 4/10 JUDGMENT recently the Hon'ble Apex Court has referred the issue of scope of section 33C(2) to the Larger Bench. He further submitted that the claim of the petitioner was that he was paid at the rate of Re.1/- for the overtime work and that he had asked for production of certain documents however the same were not produced on the ground that the said documents were not available since the demand for production of documents was for such documents which happened to be 7 to 10 years old and that therefore, the petitioner could not establish his claim and assertions in absence of those documents, which the respondent corporation did not produce. Mr. Mishra also submitted that the labour court has erred in rejecting the recovery application. From detail examination of the order of the labour court, it comes out that the labour court has not rejected the recovery application merely on the ground of limited scope of section 33-C(2). In fact, the labour court has gone into the details of all the contentions, which were raised by the petitioner before it and has recorded its findings of fact on SCA/10380/2008 5/10 JUDGMENT each of the grounds and all the findings of fact are against the petitioner. During his submission, Mr. Mishra has not been able to successfully assail the said findings of fact by the labour court. It is pertinent that the labour court has discussed the evidence of petitioner and has, on the appreciation and examination of petitioner's evidence, noticed that the petitioner admitted that at any point of time, during his employment, the petitioner had never raised any grievance or demand for overtime payment or for payment of the balance amount allegedly short paid for the overtime work put in by him and had never made any complaint in past before preferring the application. The labour court has, thus, formed a well reasoned opinion that the claim made by the petitioner is an afterthought which is unjustified. In this view of the matter, no fault can be found with the labour court in taking into account the said conduct of the petitioner who approached the court with his claim for payment of wages for overtime allegedly put in by him for the period from April, 1990 to April, 1996, in 2000 i.e. after 4 SCA/10380/2008 6/10 JUDGMENT years and that he had also tendered resignation and availed benefit of VRS. Besides this, the labour court has also recorded that the petitioner, in his evidence, admitted that he did not know at what rate the payment of overtime was made to him. In view of the deposition of the petitioner, the labour court arrived at a conclusion that the petitioner failed to establish that he was paid only at the rate of Re.1/- for the overtime work put in by him and/or that he was made to work every day from 9.00 a.m. to about 9.00 p.m. or 10.00 p.m. The labour court has also recorded finding of fact that primary responsibility of proving or establishing the base of his claim was of the petitioner and the petitioner failed to discharge the same. It is also relevant to note that in his recovery application and in his evidence before the court the petitioner alleged that he was made to put in overtime work everyday for which he made the claim for the period of six years and that too 4 years after tendering resignation under the VRS from service. The important part of his claim is that SCA/10380/2008 7/10 JUDGMENT though petitioner alleged, as mentioned in the order, that he had been working from 1991, yet he claimed overtime from April, 1990 i.e. for the period even before he started working for respondent. It is pertinent that the petitioner instituted the claim for the period from April, 1990 to April, 1996 in 2000 and after much time from the presentation of the recovery application, the petitioner tendered application before the labour court asking for direction against the respondent to produce the documents. By his said application, the petitioner demanded production of documents for the period from 1990 to 1996, though his claim was only for the period from April, 1990 to April, 1996. In the present case, no fault can be found with the labour court in accepting the submission of the respondent that since the demand for production of documents was made for 7 to 10 years old documents the same were not traceable and/or available. This court is also not inclined to accept that merely because the respondent could not produce the said documents, the labour court should have drawn adverse inference and should have allowed the recovery application. SCA/10380/2008 8/10 JUDGMENT Such submission is not acceptable or sustainable and it would not be justifiable to draw adverse inference when the claim is lodged after almost 4 years and to substantiate his claim, demand for production of documents by the opponent is made and that too for more than 6 or 7 years old documents. Such inquiry would amount to fishing and roving inquiry. On such ground interference with the order of the labour court cannot be made, more particularly, when the labour court has arrived at and recorded findings of fact on other issues also which are held against the petitioner. Besides this, the issue of limited scope of proceedings under section 33C(2) is also present in this case and as per the legal position which exists as of now the claim would not fall within the scope of section 33(C). It is true that by the judgment of the Hon'ble Apex Court the said issue has been referred to the Larger Bench, however, the legal position settled by the judgments of the Hon'ble Apex Court and this Hon'ble Court prevails as of now. SCA/10380/2008 9/10 JUDGMENT Further, in the judgment where the issue has been referred to the Larger Bench, the point in question was regarding workman's entitlement for lay off compensation i.e. a statutory benefit which was allegedly denied and was being opposed on ground that since VRS amount was accepted, no claim would survive. In the present case, the labour court has recorded findings of fact and on merits the petitioner failed to establish his claim about overtime i.e. he failed to establish that he had worked for almost 12 hours everyday and/or that he was not paid for such overtime or that the respondent made short payment for the overtime work put in by him. Thus, in view of the facts of present case and in light of the findings of facts recorded by the labour court the said judgment of the Hon'ble Apex Court does not help the petitioner. On over all consideration of the impugned order of the labour court, it is not possible to hold that SCA/10380/2008 10/10 JUDGMENT the labour court has committed any error of jurisdiction or of law in rejecting the application and that therefore, the present petition fails. Thus, present petition is rejected. No order as to costs. [K.M.Thaker, J.] kdc