w w w . L a w y e r S e r v i c e s . i n



M.D. Oswal Hosiery v/s D.D. Gupta


Company & Directors' Information:- J G HOSIERY PRIVATE LIMITED [Active] CIN = U18101TZ2001PTC009707

Company & Directors' Information:- K D S HOSIERY PRIVATE LIMITED [Active] CIN = U18101PB2001FTC024327

Company & Directors' Information:- R M H HOSIERY PRIVATE LIMITED [Active] CIN = U17125DL2007PTC167271

Company & Directors' Information:- P R OSWAL HOSIERY PRIVATE LIMITED [Active] CIN = U74899DL2004PTC124189

Company & Directors' Information:- P T M HOSIERY PVT LTD [Active] CIN = U52322WB1994PTC062394

Company & Directors' Information:- M G HOSIERY PRIVATE LIMITED [Active] CIN = U17124TZ2002PTC010195

Company & Directors' Information:- B M OSWAL HOSIERY PRIVATE LIMITED [Active] CIN = U51311PB1985PTC006334

Company & Directors' Information:- D K OSWAL HOSIERY (INDIA) PRIVATE LIMITED [Active] CIN = U18101UP2004PTC028524

Company & Directors' Information:- D D HOSIERY PVT LTD [Active] CIN = U18101WB1973PTC028694

Company & Directors' Information:- M. B. HOSIERY PRIVATE LIMITED [Active] CIN = U18101WB2008PTC125110

Company & Directors' Information:- L C OSWAL HOSIERY PRIVATE LIMITED [Active] CIN = U18101PB1989PTC009968

Company & Directors' Information:- R R HOSIERY PRIVATE LIMITED [Active] CIN = U18101MH1984PTC034394

Company & Directors' Information:- K K HOSIERY PRIVATE LIMITED [Active] CIN = U18204MH2014PTC251777

Company & Directors' Information:- B B HOSIERY PRIVATE LIMITED [Strike Off] CIN = U74999MH2015PTC267158

Company & Directors' Information:- DD LIMITED [Active] CIN = U74120UP2015PLC073414

Company & Directors' Information:- DD LIMITED [Active] CIN = U74120DL2015PLC305725

Company & Directors' Information:- M C S HOSIERY PRIVATE LIMITED [Strike Off] CIN = U51311WB2001PTC093781

Company & Directors' Information:- S P HOSIERY PVT LTD [Strike Off] CIN = U51311PB1985PTC006113

Company & Directors' Information:- M D OSWAL HOSIERY PVT LTD [Strike Off] CIN = U99999DL1980PTC010815

    Civil Appeal No. 1446 of 1974

    Decided On, 25 February 1994

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE ANIL DEV SINGH

    For the Appearing Parties: G.N. Agarwal, Advocate.



Judgment Text

ANIL DEV SINGH, J.


(1) THIS is a writ petition challenging the order of the labour Court, Delhi dated 5/10/1974 whereby the second respondent (workman) was held entitled to receive back wages for the period September 1,197 1/07/1973, at the rate of Rs. 144. 00 p. m. amounting to Rs. 3,292. 00, from the petitioner (employer). Facts as appear from petition are as under:-


(2) PETITIONER is a manufacturer of Hosiery goods at Delhi. Respondent No. 2was working with the petitioner as a cutter. On 12/07/1972 respondent No. 2 filedan application before the Labour Court, Delhi, in the form of a "statement of claim", with the allegations inter-alia, that he was appointed as a cutter by the management on piece rate basis with effect from 19/10/1970, that the petitioner refused to give him work from 1/09/1971 and that his monthly wages ranged between Rs. 250. 00-350 per month. On 24/10/1992 statement of the second respondent was recorded by the Labour Court wherein he stated that he was appointed as a cutter and was earning Rs. 250. 00 to Rs. 350. 00 per month on piece rate fbasis. On 18/07/1973 Labour Court made an award whereby it was inter-alia held that the second respondent was entitled to half the back wages from the date of his removal till 1/08/1973 and also directed that he will be continued in service. According to the award the monthly wages of the petitioner were required to be calculated by taking his three months average salary, preceding the date on which he was removed. It is the case of the petitioner that after the award, the second respondent was approached by the petitioner to join duty but he failed to do so and instead filed an application under Section 33-C (1) of the Industrial Disputes Act,1947 (for short 'the Act'). However, the Labour Welfare Officer advised the said respondent to move an application under Section 33-C (2) of the Act. Consequently, the respondent moved an application under Section 33-C (2) before the Labour court. The Labour Court by its order dated 5/10/1974 directed the petitioner to continue the second respondent in service and to pay a sum of Rs. 3,292. 00 to him for the period for which he was refused work. The petitioner feeling aggrieved by the order of the Labour Court, moved the present petition and this is how the matter is before this Court.


(3) MR. Aggarwal, learned Counsel appearing for the petitioner submits that the application of the second respondent under Section 33-C (2) before the Labour court was not maintainable inasmuch as the same was filed pursuant to the award of the Labour Court and the respondent could have moved only under Section 33-C (1). It is the submission of the learned Counsel that the application lay to the central Government only as is provided in Section 33-C (1) itself.


(4) THERE is no one present on behalf of the second respondent to oppose the petition. In the circumstances, I have no option but to decide the matter in absence of the Counsel for the said respondent.


(5) IN order to appreciate the submission advanced by the learned Counsel for the petitioner, it would be appropriate to extract Section 33-C of the Act in so far a sit is relevant, for the purpose of the resolution of the controversy.


" (1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of (Chapter V-A or chapter V-B), the workman himself or any other person authorised by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue: provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer: provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period. (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. "


(6) ACCORDING to Section 33-C (1) a workman to whom any money is due fro man employer under a settlement or an award or under the provisions of Chapter 5 A or 5b may move an application to the appropriate Government for recovery of money due to him. Therefore, for invoking Section 33-C (1) a workman has to demonstrate that money is due to him under a settlement or an award or under the provisions of Chapter 5 A or 5b of the Act. On the other hand under Section 33-C (2)of the Act a claim before the Labour Court not based on settlements, awards or made under the provisions of Chapter 5a or5b thereof may also be competent but the aforesaid three categories of claims mentioned in Section 33-C (1) are not excluded therefrom and fall within its purview and field of operation. Section 33-C (2) has a wider scope than Section 33-C (1). The words limiting the area of operation of Section 33-C (1) are not to be found in Section 33-C (2). Section 33-C (2)applies when a workman has an existing established right to receive from the employer any money or benefit which is capable of being computed in terms of money and in such an eventuality he can move the Labour Court for realisation of the amount due to him.


(7) THE history of the legislation, as noticed by the Supreme Court in The central Bank of India Ltd. v. P. S. R Rajagopalan etc. AIR 1964 S. C. 743, indicates that Section 33-C of the Act was inserted for providing speedy remedy to enforce the individual existing rights of the workmen falling within its purview, without having to take recourse to Section 10 (l)of the Act or without the aid of their unions to espouse their cause. As already noticed the words of limitation which are found in Section 33-C (1) are missing in Section 33-C (2) to make its operation go beyond the operation of Section 33-C (1) and give it a wider magnitude. If the operation of section 33-C (2) is wider than Section 33-C (1), it does not stand to reason why a case where the workman who has an existing right to recover the money due to him under the award, settlement and under Chapter 5a and 5b or otherwise cannot invoke Section 33-C (2) especially when the employer does not dispute the right of the workman. The Supreme Court in The Central Bank of India v. P. S. Rajagopalan (supra) has laid down that the three categories of claims mentioned in section 33-C (1) also fall under Section 33-C (2):-


"it is unnecessary in the present appeals either to state exhaustively or even to indicate broadly what other categories of claims can fall under sec. 33-C (2). There is no doubt that the three categories of claims mentioned in Sec. 33-C (1)fall under Sec. 33-C (2) and in that sense. Sec. 33-C (2) can itself be deemed to be a kind of execution proceedings; but it is possible that claims not based on settlements, awards or made under the provisions of Chapter VA, may also be competent under Sec. 33-C (2) and that may illustrate its wider scope. "


(8) THEREFORE, it follows that classes of claims which are mentioned in Section33-C (1), can still attract the provisions of Section 33-C (2) especially in a case like the present one. As is apparent from the impugned order the petitioner in its affidavit before the Conciliation Officer admitted that the average earning of the workman for the months of June, July and August, 1971 be taken as Rs. 28,799. 00. In view of there being no controversy over this aspect, the claim would squarely fall under section 33-C (2) of the Act. Once there is an admission of the existing right of the workman by the employer in regard to the benefit which the former is entitled to receive from the latter. Section 33-C (2) of the Act would come into play. Learned counsel for the petitioner cited various decisions of the Supreme Court and of this court as also of the Patna High Court namely, Punjab National Bank Ltd. v. K. L. Kharbanda, AIR 1963 S. C. 487, U. P. Electric Supply Co. Ltd. v. R. K. Shukla and Others, 1970 3 Labour Industrial Cases 276; S. Manomani v. The Labour Court quilon and Another, 1969 2 Labour Industrial Cases 1448 and Bharat Kalakendra Private Limited v. Ved Prakash Agarwal and Others, 1974 28 Indian factories and Labour Reports 244, in order to draw a distinction between the provisions of Section 33-C (1) and 33-C (2). These authorities are of

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no assistance to the learned Counsel for the petitioner as in none of the above cases there was a virtual admission of the right of the workman by the employer before the Labour court as in the present case. In any event, before the Labour Court the petitioner did not plead or urge that Section 33-C (2) of the Act was not attracted or the Labour court did not have the jurisdiction to entertain the claim of the second respondent under it. Before the Labour Court there was not even a whisper of the plea that the claim of the respondent would fall under Section 33-C (1) and not under Section 33-C (2). The petitioner is raising the controversy for the first time in the writ petition. A small man had been held entitled to a small sum of money 20 years back by the labour Court. He cannot be denied this sum on a hyper technical plea, which was not raised before the Labour Court. (9) I see no reason to interfere with the impugned order of the Labour Court. Consequently the petition is dismissed but without any order as to costs.
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