D.KRISHNAN & Anr. vs Special Officer, Vellore Co-operative Sugar Mill & Anr.

the parties, as was required in the present case. In the

written submissions filed on behalf of the respondents, a

specific plea was also taken that the appellants were, in

fact, Managers and not workmen as the salary that they

were drawing was more than the limit prescribed under

section 2(a) of the Act and the Labour Court for this

additional reason as well, had no jurisdiction in the matter.

The Labour Court in its award dated 24th May 2002

observed that only documentary evidence had been

submitted by the parties and on an examination of the

various documents on record, in particular the time cards

produced by the appellants and the various representations

made by them calling for overtime wages, held that the

appellants had indeed worked overtime and were entitled to

payment accordingly. The plea of the respondent

Management that the appellants were, Managers and not

workmen was repelled by observing that as the plea had

not been taken in the written statement and only in the 4

written submissions, it did not warrant acceptance. The

Court also held that though an application under section

33 C(2) of the Act was in the nature of an execution and a

determination of a claim could not be made thereunder,

but as section 59 of the Factories Act 1948 provided for the

payment of overtime wages and as the documents on record

had proved the performance of overtime work, the

behaviour of the Management was "reprehensible and was

liable to be punished", more particularly, as the award in

the case of Jayavelu had become final and had not been

challenged. The application was accordingly allowed. The

respondent Management thereupon challenged the award

in the Madras High Court. The High Court in its judgment

dated 8th December 2003, dismissed the writ petition

thereby confirming the award of the Labour Court. The

judgment of the learned Single Judge was challenged by

way of a writ appeal before the Division Bench of the High

Court. The High Court in its impugned judgment dated 2nd

March 2005, observed that the reliance of the Labour Court

on documentary evidence alone, and that too in a case of 5

claim of overtime wages, was not tenable and that it was

unusual on the part of the respondents (appellants herein),

being workmen not to enter the witness box to substantiate

their claim. The Division Bench also held that the punch

time cards which formed the basis of their case did not

constitute sufficient proof, as the burden of proof in such a

matter rested on the person claiming overtime. The

Division Bench also observed that the specific stand of the

respondent was that the workmen had never been

authorized by anybody to work overtime and for this

additional reason, the claim must fail. The Court finally

concluded that in the light of the settled position of law,

proceedings under section 33 C(2) of the Act could only be

effective in case of a pre-existing right and as the claim of

the respondent workmen was disputed, this was not a

matter for decision under this provision. The writ appeal

was accordingly allowed and the judgment of the learned

Single Judge and the award of the Labour Court were

quashed. The present appeal has been filed against this

order of the High Court.

6

3. Mr. Colin Gonsalves, the learned senior counsel for the

workmen-appellants, has submitted that though

proceedings under Section 33 C(2) of the Act were indeed in

the nature of execution proceedings but this provision also

visualized some enquiry, be it a casual one, and as the

Labour Court and the learned Single Judge of the High

Court had taken a particular view on the evidence, the

Division Bench ought to have stayed its hands and not

taken a different view. It has been pleaded that there was

a difference between the terminology of Sections 33 C(1)

and section 33 C(2) inasmuch as section 33 C(1) dealt with

money due to a workman from an employer under a

settlement or award etc., whereas section 33 C(2) was much

wider in its application and visualized an entitlement with

respect to money even if a pre-existing right was created by

a Statute and as in the present case, section 59 of the

Factories Act visualized payment of overtime wages, a

simple enquiry under section 33 C(2) was fully justified. In

this connection, the learned counsel has placed reliance on

Chief Mining Engineer East India Coal Co.Ltd. vs. 7

Rameshwar & Ors. (1968) 1 SCR 140. He has also

pleaded, that even assuming for a moment, that there was

some evidence to raise a suspicion that the appellants were

Managers and not workmen, the dominant purpose of their

employment had to be seen and the dominant purpose

being that of workmen, even if they were delegated some

minor managerial activities, would not change the nature of

their appointment. It was also submitted that all the

judgments cited by the Division Bench pertained to cases

where the workmen claimed "equal pay for equal work" and

which did involve the determination of a right, but in the

present case, keeping in view the provisions of Section 59 of

the Factories Act, and the dominant purpose of the

employment of the appellants, the aforesaid judgments

were not applicable.

4. Mr. Dayan Krishnan, the learned counsel for the

respondents has, however, disputed the claim of the

appellants and has referred to the counter affidavit and the

written submissions filed before the Labour Court. It has

been contended that in order to raise a claim for overtime 8

wages, it was essential that the overtime work should be

authorized by a competent authority and no such

authorization being on record, the claim under section 59 of

the Factories Act was not tenable. It has also been pleaded

that the proceedings under section 33 C(2) were in the

nature of execution proceedings and no determination of a

right could be made and for this submission the learned

counsel has placed reliance on Municipal Corporation of

Delhi vs. Ganesh Razak & Anr. (1995) 1 SCC 235 and

State of U.P. & Anr. Vs. Brijpal Singh (2005) 8 SCC 58.

4. We have considered the arguments advanced by the learned

counsel for the parties. The fact that proceedings under

Section 33 C(2) are in the nature of execution proceedings

is in no doubt, and such proceedings presuppose some

adjudication leading to the determination of a right, which

has to be enforced. Concededly there has been no such

adjudication in the present case. It will be seen that the

reliance of the appellant-workmen is exclusively on

documentary evidence placed on record which consisted

primarily of the punch time cards and the representations 9

that had been filed from time to time before the

respondents. It is also true that the claim raised by the

appellants had been hotly disputed by the respondents.

The question that arises in this situation is whether

reliance only on the documentary evidence was sufficient to

prove the case. We are of the opinion that the reference to

Municipal Corporation's case (supra) is completely

misplaced as in that matter, the fact that different

categories of workers were doing identical kind of work was

virtually admitted but different scales of pay were

nevertheless being paid to them. It is also relevant that

oral evidence had been adduced by the workmen to

supplement the documentary evidence and it was in that

situation that the Court felt that an application under

section 33 C(2) was maintainable. We find that the claim

by the appellants herein has been disputed from the

beginning and that the documents filed by the appellants

themselves suggest that they were unsure of their own

status. We have also perused the representations which

have been filed as additional documents. A perusal of the 10

letter dated 10th February 1996 from S.Karuthiah Pandian,

Special Officer shows that the appellant D.Krishnan was

being posted as a Canteen Manager. The subsequent

letters dated 20th May 1996, 20th January 1997, 20th

February 1997, 15th April 1998 and 6th August 1998 were

all written by the appellant D.Krishnan identifying his post

as that of Manager of the canteen and in the body of the

last letter, a specific plea has been made that amongst the

several duties entrusted to him, he had to instruct 4

workers to come in the morning, to prepare breakfast and

a complaint that on one particular day, one C.

Uttharakumar, a Clerk working under him had refused to

follow his orders. We also find similar letters written by the

second appellant, K. Shanmugam and they too are on the

record as additional documents. We are, therefore, of the

opinion that in the light of the categorical statements time

and again in the very documents relied upon by the

appellants in support of their case, that they were, prima-

facie, Managers and it would, therefore, be beyond the 11

jurisdiction of the Labour Court to determine their status in

proceedings under Section 33 C(2) of the Act.

6. In this view of the matter, we find that the judgment

reported in Municipal Corporation's case (supra) was

clearly applicable to the facts of the present case. In this

case, it was observed that:

"In these matters, the claim of the respondent-workmen who were all daily- rated/causal workers, to be paid wages at the same rate as the regular workers, had not been earlier settled by adjudication or recognition by the employer without which the stage for computation of that benefit could not reach. The workmen's claim of doing the same kind of work and their entitlement to be paid wages at the same rate as the regular workmen on the principle of "equal pay for equal work" being disputed, without an adjudication of their dispute resulting in acceptance of their claim to this effect, there could be no occasion for computation of the benefit on that basis to attract Section 33-C(2). The mere fact that some other workmen are alleged to have made a similar claim by filing writ petitions under Article 32 of the Constitution is indicative of the need for adjudication of the claim of entitlement to the benefit before computation of such a benefit could be sought. Respondents' claim is not based on a prior adjudication made in the writ 12

petitions filed by some other workmen upholding a similar claim which could be relied on as an adjudication enuring to the benefit of these respondents as well. The writ petitions by some other workmen to which some reference was casually made, particulars of which are not available in these matters, have, therefore, no relevance for the present purpose. It must, therefore, be held that the Labour Court as well as the High Court were in error in treating as maintainable the applications made under Section 33-C(2) of the Act by these respondents.

In Brijpal Singh's case (supra), this is what the Court

had to say:

"It is well settled that the workman can proceed under Section 33-C(2) only after the Tribunal has adjudicated on a complaint under Section 33-A or on a reference under Section 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman. This Court in the case of Punjab Beverages (P) Ltd. vs. Suresh Chand held that a proceeding under Section 33-C(2) is a proceeding in the nature of execution proceeding in which the Labour Court calculates the amount of money due to a workman from the employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to compute the benefit in terms of money. Proceeding further, this 13

Court held that the right to the money which is sought to be calculated or to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between the industrial workman, and his employer."

7. Mr. Gonsalves, has, however urged that a pre-existing

right could also emanate from a statute, in this case from

Section 59 of the Factories Act, which provided for the

payment of overtime wages and in this view of the matter, all

that the Labour Court was called upon to do was to make a

calculation of the amounts due to the appellants. The facts of

the case are, however, not as clear cut and dried, as has been

contended. The Division Bench has observed that though

section 59 of the Factories Act undoubtedly provided for extra

payment as overtime wages, but according to Rule 78B of the

Tamil Nadu Factories Rule, 1950, only an employee

authorized to work overtime by an overtime slip would be

entitled to claim an overtime allowance. The specific case of

the respondent-Management, which has not been contested 14

by the appellants even during the course of the arguments

before us, is that no such slips had ever been issued.

Additionally, we are of the opinion that in the absence of any

supporting oral evidence by the workmen which would also

result in their cross-examination, a mere reliance on the

documents filed by them is insufficient for determining the

factual basis of the issues involved, in proceedings under

Section 33-C(2) of the Act. In this view of the matter, Mr.

Gonsalves's argument based on Rameshwar's case (supra) or

the scope and ambit of Section 33 C(1) vis-`-vis Section 33 C

(2), is also unacceptable.

8. Mr. Gonsalves has finally submitted that in the light of

the judgment of this Court in Damodar Valley Corporation

vs. Workmen (1974) 3 SCC 57 and State of Karnataka &

Ors. vs. C.Lalitha (2006) 2 SCC 747, an order made by a

Court was required to be made applicable to all those similarly

circumstanced and as Jayavelu, who was identically placed,

had been granted the benefit of overtime wages by the Labour

Court, the appellants too were entitled to the same relief.

This submission is however not acceptable on account of the 15

lack of particulars with respect to Jayavelu's matter. It is,

thus, not possible to evaluate the matter as being identical on

facts. We, thus, find no merit in the appeal. It is accordingly

dismissed, with no order as to costs.

.....................................J. (TARUN CHATTERJEE)

.....................................J. (HARJIT SINGH BEDI )

New Delhi, Dated: May 16, 2008