The Chief Officer, Sangli Municipal Council Vs. Shri Masoom Akbar Patharwal and Others - Court Judgment

Excerpt:
labour and industrial - overtime wages - section 33-c (2) of industrial disputes act, 1947 - order for payment of overtime wages challenged - nothing on record to prove that workers entitled for overtime wages - order of labour court set aside - matter remanded back to labour court with direction to applicants to produce any circular or notification issued by government or municipality entitling them for overtime wages. - indian evidence act, 1872 section 24: [v.s. sirpurkar & deepak verma,jj] dying declaration - multiple murders by accused - dying declaration not implicating one accused - evidence of eye witnesses however completely fixing his criminal liability ocular evidence found credible held, absence of his name in dying declaration would be of no help to accused. - 2. the respondents-employees claim in the applications filed before the labour court that they had worked as drivers and cleaners with the municipal council and though originally they were required to perform the duty of eight hours, sometime in 1968, a circular was issued changing their duty hours as well as the place of work. ganesh razak & another, (1995)illj395sc .it has been held that when the application for recovery of monitory benefits is filed the entitlement for such claim ought to have been earlier adjudicated by competent forum or recognised by the employer and where the basis of claim or entitlement of workmen to a certain benefit is disputed, there being no earlier adjudication or recognition by the employer, the dispute relating to entitlement is not incidental to the benefits claimed and is, therefore, clearly outside the scope of the proceedings under the said section so far as the issue regarding delay is concerned, this court in the case of deputy engineer, zilla parishad (works) sub-division, urmed and others v. in addition, from the records and proceedings as well as from the impugned order passed by the learned presiding officer of the labour court, it is evident that no circulars or rules were relied upon by the applicant to show that they were entitled for over-time at double the rate for working hours beyond eight-hours. this could have been done even by submitting circulars or rules which lay down that employees of the municipal council like the petitioners were entitled for overtime wages and that too at double the rate of normal wages for working beyond eight hours on every working day. r & p as well as the writ to go forthwith to the labour court at sangli.orderb.h. marlapalle, j.1. the petitioner-municipal council has challenged the legality of the order passed by the learned presiding officer, labour court at sangli on 5th july, 1991 by which three different applications i.e. application no. 69 of 1990, application no. 75 of 1990 and application no. iii of 1990 under section 33-c(2) of the industrial disputes act, 1947, came to be allowed for the claim for recovery of over time wages.2. the respondents-employees claim in the applications filed before the labour court that they had worked as drivers and cleaners with the municipal council and though originally they were required to perform the duty of eight hours, sometime in 1968, a circular was issued changing their duty hours as well as the place of work. subsequent circulars, issued till 1984, were also filed along with the applications to show that these claimants were working for more than eight hours and almost for 12 hours everyday. it is also contended that the employees were called in two shifts and each shift was of 12 hours duration. the calculation regarding the wages of over time is submitted by way of statement before the labour court.3. the municipal council, opposed the claim by filing reply before the labour court and it mainly emphasised on the tenability of the claims on the ground of delay and estoppel, etc.4. on behalf of the claimants, one shri p.g. naik and one shri rajaram dnyanu bhandavale were examined and they stated in their deposition that the circulars submitted along with the applications indicated that the claimants' duty hours were 12 hours every day and they were entitled for overtime wages at double the rate. the municipal council, it appears, did not dispute the calculations regarding the recovery amounts, but it is clear in the reply filed by the municipal council that it contended before the labour court that the claimants were not entitled for the over-time wages.5. by the impugned order, all the three applications came to be allowed and while admitting these writ petitions this court had directed the petitioner-municipal council to deposit the amounts directed by the labour court and liberty was granted to the workmen to withdraw the same on the condition that the payment would be subject to the final decision of this court in these petitions. this order was passed on 18th december 1991 and admittedly the municipal council has deposited the amount which was in turn withdrawn by the claimants concerned.6. the scope of the provisions of section 33-c(2) of industrial disputes act has been set out by the apex court in the case of municipal corporation of delhi v. ganesh razak & another, : (1995)illj395sc . it has been held that when the application for recovery of monitory benefits is filed the entitlement for such claim ought to have been earlier adjudicated by competent forum or recognised by the employer and where the basis of claim or entitlement of workmen to a certain benefit is disputed, there being no earlier adjudication or recognition by the employer, the dispute relating to entitlement is not incidental to the benefits claimed and is, therefore, clearly outside the scope of the proceedings under the said section so far as the issue regarding delay is concerned, this court in the case of deputy engineer, zilla parishad (works) sub-division, urmed and others v. shantaram ramaji & others, : (1997)iillj262bom held that though the provisions of article 137 of the limitation act are not applicable to the proceedings under section 33-c(2) of the industrial disputes act, the question of delay in moving such an application has to be decided by the labour court on considering the facts and circumstances of each case.7. the contention of the municipal council that some of the applicants had earlier claimed similar benefits and therefore, the fresh applications were not maintainable, has been dealt with by the labour court.8. it has been pointed out that the earlier applications were not for therecovery of the over-time wages and more particularly for the period whichwas set out in the respective applications. the issue of estoppel has, therefore, been turned down. the issues of estoppel and res judicata have beenrightly turned down by the labour court and the same does not require anyinterference at the hands of this court.9. admittedly there was nothing before the labour court to say that the provisions of the factories act, 1948 were applicable to the applicants. in addition, from the records and proceedings as well as from the impugned order passed by the learned presiding officer of the labour court, it is evident that no circulars or rules were relied upon by the applicant to show that they were entitled for over-time at double the rate for working hours beyond eight-hours.10. it was necessary for the applicants before the labour court to bring on record the evidence to show that their claim was either adjudicated or accepted by the employer before they filed the recovery applications. this could have been done even by submitting circulars or rules which lay down that employees of the municipal council like the petitioners were entitled for overtime wages and that too at double the rate of normal wages for working beyond eight hours on every working day. this has not been done. therefore, the impugned order of the labour court cannot be sustained. in addition the issue regarding delay has been dealt with by the labour court in a very casual manner and the same is required to be considered as per the law laid down by this court in the case of deputy engineer (supra). it is possible that the applicants will be able to submit copies of the circulars or rules, which have recognised their entitlements of the claim of over-time wages as raised in the applications filed before the labour court and there may be sufficient evidence which the applicants may be able to put up before the labour court. it is therefore, necessary to afford an opportunity to the applicants/respondents to lead necessary evidence of these two important questions viz. thedelay in approaching the labour court as welt as their right either adjudicated or recognised by the municipal council or the government for payment of over-time wages at double rate or at any other rate, afresh.11. for the reasons stated in the foregoing paragraphs, the writ petitions are allowed and the impugned order dated 5th july, 1991 passed by the labour court at sangli is hereby quashed and set aside. the labour court at sangli is hereby directed to decide the applications (ida) nos. 69 of 1990, 75 of 1990 and 111 of 1990 afresh by giving an opportunity to the applicants to submit evidence to support their claim that their entitlement for over-time wages was recognised by the employer or by the government or by any award and also on the point of delay. the petitioner shall co-operate with the labour court and submit before the court all the necessary circulars or copies of rules relevant to the claim made by the applicants, in case, such circulars or rules are not available with the claimants. needless to mention that the amounts received by the individual claimants pursuant to the order passed by this court in these petitions on 18th december 1991 shall be subject to the order to be passed by the labour court in the fresh decision.12. in view of the passage of time, it is directed that the labour court shall dispose of the applications referred to hereinabove as expeditiously as possible and in any case, within a period of six months from the receipt of writ from this court. r & p as well as the writ to go forthwith to the labour court at sangli. rule made absolute accordingly. no order as to costs.13. petition allowed.

Judgment:
ORDER

B.H. Marlapalle, J.

1. The petitioner-Municipal Council has challenged the legality of the order passed by the learned Presiding Officer, Labour Court at Sangli on 5th July, 1991 by which three different applications i.e. Application No. 69 of 1990, Application No. 75 of 1990 and Application No. III of 1990 under section 33-C(2) of the Industrial Disputes Act, 1947, came to be allowed for the claim for recovery of over time wages.

2. The respondents-employees claim in the applications filed before the Labour Court that they had worked as drivers and cleaners with the Municipal Council and though originally they were required to perform the duty of eight hours, sometime in 1968, a circular was issued changing their duty hours as well as the place of work. Subsequent circulars, issued till 1984, were also filed along with the applications to show that these claimants were working for more than eight hours and almost for 12 hours everyday. It is also contended that the employees were called in two shifts and each shift was of 12 hours duration. The calculation regarding the wages of over time is submitted by way of statement before the Labour Court.

3. The Municipal Council, opposed the claim by filing reply before the Labour Court and it mainly emphasised on the tenability of the claims on the ground of delay and estoppel, etc.

4. On behalf of the claimants, one Shri P.G. Naik and one Shri Rajaram Dnyanu Bhandavale were examined and they stated in their deposition that the circulars submitted along with the applications indicated that the claimants' duty hours were 12 hours every day and they were entitled for overtime wages at double the rate. The Municipal Council, it appears, did not dispute the calculations regarding the recovery amounts, but it is clear in the reply filed by the Municipal Council that it contended before the Labour Court that the claimants were not entitled for the over-time wages.

5. By the impugned order, all the three applications came to be allowed and while admitting these writ petitions this Court had directed the petitioner-Municipal Council to deposit the amounts directed by the Labour Court and liberty was granted to the workmen to withdraw the same on the condition that the payment would be subject to the final decision of this Court in these petitions. This order was passed on 18th December 1991 and admittedly the Municipal Council has deposited the amount which was in turn withdrawn by the claimants concerned.

6. The scope of the provisions of section 33-C(2) of Industrial Disputes Act has been set out by the Apex Court in the case of Municipal Corporation of Delhi v. Ganesh Razak & another, : (1995)ILLJ395SC . It has been held that when the application for recovery of monitory benefits is filed the entitlement for such claim ought to have been earlier adjudicated by competent forum or recognised by the employer and where the basis of claim or entitlement of workmen to a certain benefit is disputed, there being no earlier adjudication or recognition by the employer, the dispute relating to entitlement is not incidental to the benefits claimed and is, therefore, clearly outside the scope of the proceedings under the said section So far as the issue regarding delay is concerned, this Court in the case of Deputy Engineer, Zilla Parishad (Works) Sub-Division, Urmed and others v. Shantaram Ramaji & others, : (1997)IILLJ262Bom held that though the provisions of Article 137 of the Limitation Act are not applicable to the proceedings under section 33-C(2) of the Industrial Disputes Act, the question of delay in moving such an application has to be decided by the Labour Court on considering the facts and circumstances of each case.

7. The contention of the Municipal Council that some of the applicants had earlier claimed similar benefits and therefore, the fresh applications were not maintainable, has been dealt with by the Labour Court.

8. It has been pointed out that the earlier applications were not for therecovery of the over-time wages and more particularly for the period whichwas set out in the respective applications. The issue of estoppel has, therefore, been turned down. The issues of estoppel and res judicata have beenrightly turned down by the Labour Court and the same does not require anyinterference at the hands of this Court.

9. Admittedly there was nothing before the Labour Court to say that the provisions of the Factories Act, 1948 were applicable to the applicants. In addition, from the records and proceedings as well as from the impugned order passed by the learned Presiding Officer of the Labour Court, it is evident that no circulars or rules were relied upon by the applicant to show that they were entitled for over-time at double the rate for working hours beyond eight-hours.

10. It was necessary for the applicants before the Labour Court to bring on record the evidence to show that their claim was either adjudicated or accepted by the employer before they filed the recovery applications. This could have been done even by submitting circulars or rules which lay down that employees of the Municipal Council like the petitioners were entitled for overtime wages and that too at double the rate of normal wages for working beyond eight hours on every working day. This has not been done. Therefore, the impugned order of the Labour Court cannot be sustained. In addition the issue regarding delay has been dealt with by the Labour Court in a very casual manner and the same is required to be considered as per the law laid down by this Court in the case of Deputy Engineer (supra). It is possible that the applicants will be able to submit copies of the circulars or rules, which have recognised their entitlements of the claim of over-time wages as raised in the applications filed before the Labour Court and there may be sufficient evidence which the applicants may be able to put up before the Labour Court. It is therefore, necessary to afford an opportunity to the applicants/respondents to lead necessary evidence of these two important questions viz. thedelay in approaching the Labour Court as welt as their right either adjudicated or recognised by the Municipal Council or the Government for payment of over-time wages at double rate or at any other rate, afresh.

11. For the reasons stated in the foregoing paragraphs, the writ petitions are allowed and the impugned order dated 5th July, 1991 passed by the Labour Court at Sangli is hereby quashed and set aside. The Labour Court at Sangli is hereby directed to decide the Applications (IDA) Nos. 69 of 1990, 75 of 1990 and 111 of 1990 afresh by giving an opportunity to the applicants to submit evidence to support their claim that their entitlement for over-time wages was recognised by the employer or by the Government or by any award and also on the point of delay. The petitioner shall co-operate with the Labour Court and submit before the Court all the necessary circulars or copies of rules relevant to the claim made by the applicants, in case, such circulars or rules are not available with the claimants. Needless to mention that the amounts received by the individual claimants pursuant to the order passed by this Court in these petitions on 18th December 1991 shall be subject to the order to be passed by the Labour Court in the fresh decision.

12. In view of the passage of time, it is directed that the Labour Court shall dispose of the applications referred to hereinabove as expeditiously as possible and in any case, within a period of six months from the receipt of writ from this Court. R & P as well as the writ to go forthwith to the Labour Court at Sangli. Rule made absolute accordingly. No order as to costs.

13. Petition allowed.