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2015 DIGILAW 1129 (JHR)

C. M. S. Securitas Limited v. State of Jharkhand

2015-09-17

SHREE CHANDRASHEKHAR

body2015
ORDER : Aggrieved by order dated 28.08.2008 in M.J. Case No. 04 of 2007, the present writ petition has been filed. 2. The petitioner is a company registered under the Societies Act. The respondent no. 2 was employed as Armed Security in the petitioner's company on payment of Rs. 3060/- per month. The respondent no. 2 was issued appointment letter which contained several conditions which included conditions for medical reimbursement. The respondent no. 2 filed an application under Section 33C(2) of the Industrial Disputes Act, 1947 seeking calculation of benefit for overtime, medical reimbursement etc. The said application has been allowed vide order dated 28.08.2008. Aggrieved, the petitioner has approached this Court. 3. The writ petition was filed on 11.06.2009 and it has been listed on as many as 14 occasions however, no counter-affidavit has been filed on behalf of the respondent no. 2. The learned counsel for the petitioner has raised a question of jurisdiction of the Labour Court to entertain the application under Section 33C(2) of the Industrial Disputes Act, 1947 and therefore, the writ petition is disposed of at this stage itself. 4. The learned counsel for the petitioner submits that, the claim raised by the respondent is neither admitted by the management nor supported by an award or settlement and therefore, the Labour Court had no jurisdiction to entertain the application. The learned counsel relies on a decision in “U.P. Electric Supply Co. Ltd. vs. R.K. Shukla”, reported in (1969) 2 SCC 400 , whereunder, the Hon'ble Supreme Court has held ; “14. ..... in order that a claim may be adjudicated upon under Section 33C(2), there must be an existing right and the right must arise under an award, settlement or under the provisions of Chapter VA, or it must be a benefit provided by a statute or a scheme made thereunder and there must be nothing contrary under such statute or Section 33C(2)....” 5. It is well settled that Section 33C(2) of the Industrial Disputes Act, 1947 confers jurisdiction on the Labour Court only if the claim raised by the workman is either admitted by the management/employer or there is an award or settlement in favour of the workman and the workman seeks calculation of benefit under the award/settlement. In “State Bank of India Vs. In “State Bank of India Vs. Ram Chandra Dubey and Others” (2001) 1 SCC 73 , the Hon'ble Supreme Court has held that, the jurisdiction of Labour Court under Section 33C(2) extends to computation of a preexisting benefit or one flowing from a preexisting right. In “U.P. State Road Transport Corporation Vs. Birendra Bhandari”, (2006) 10 SCC 211 , the Hon'ble Supreme Court has reiterated that “the benefit which can be enforced under Section 33C(2) is a preexisting benefit or one flowing from a preexisting right”. 6. In the writ petition, the petitioner has taken a plea that claim for overtime, hospitalization, conveyance allowance, house rent allowance etc. are payable in terms of the Company's Rules and it was not automatic. The learned counsel for the respondent no. 2 has contended that the claim raised by the respondent no. 2 was a matter of record on the basis of which, the Labour Court has allowed application under Section 33C(2) of the Industrial Disputes Act, 1947. It is contended that the employment of respondent no. 2 with the petitioner company is not denied and thus the petitioner cannot deny that the respondent no. 2 was entitled for payment of medical expenses, overtime wages and other allowances. A perusal of order dated 28.08.2008 would disclose that the respondent no. 2 claimed payment under as many as 12 heads. One of the claims is payment on account of illegal E.S.I deduction. The petitioner has taken a stand that medical reimbursement is permissible as per company's Medical Treatment and Attendance Rules. The petitioner has further asserted that there are other conditions for reimbursement of medical expenses. It further appears that a First Information Report was lodged against respondent no. 2 and others for assaulting the company's officials on 14.08.2007. Accordingly, the respondent no. 2 was suspended with effect from 27.08.2007 and a disciplinary proceeding has been initiated against him. The Labour Court noticed the documents filed by respondent no. 2 and considered the evidence of the witness (P.W.2) produced by respondent no. 2. The respondent no. 2 has examined himself as P.W.1. In Paragraph nos. 6 and 7 of the impugned order dated 28.08.2008 the trial court has noticed the evidence of the witnesses. I find that neither the respondent no. 2 nor P.W. 2 asserted that the claim for payment made by the respondent no. 2. The respondent no. 2 has examined himself as P.W.1. In Paragraph nos. 6 and 7 of the impugned order dated 28.08.2008 the trial court has noticed the evidence of the witnesses. I find that neither the respondent no. 2 nor P.W. 2 asserted that the claim for payment made by the respondent no. 2 requires no decision by the management and it was automatic. Though, the opposite party-company did not file its reply opposing application under Section 33C(2), I find that the Labour Court has allowed the said application without recording a finding that the claim raised by the respondent no. 2 has been admitted by the management. The right flowing to a workman for which application under Section 33C(2) can be filed, must be an admission of the benefits to the workman prior to filing of the application under Section 33C(2) of the Industrial Disputes Act, 1947. 7. Considering the above facts, I find that order dated 28.08.2008 in M.J. Case No. 04 of 2007 suffers from serious infirmity in law. The Labour Court had no jurisdiction to entertain the application under Section 33C(2) of the Industrial Disputes Act, 1947. Accordingly, the writ petition stands allowed. 8. I.A. No. 3601 of 2015 stands disposed of. Petition allowed.