Delhi District Court
Ajay Kumar Gupta vs Bombay Mercantile Co-Operative Bank … on 23 December, 2024
Ajay Kumar Gupta Vs. Bombay Mercantile Co-operative Bank Ltd.
LC No.192/2023
IN THE COURT OF DR. SURENDER MOHIT SINGH,
DISTRICT JUDGE
PRESIDING OFFICER: LABOUR COURT-08
ROUSE AVENUE DISTRICT COURTS: NEW DELHI
LC No.192/2023
CNR No. DLCT-13-001067-2023
Sh. Ajay Kumar Gupta
S/o Late Kishan Lal
R/o 55-A, Malviya Nagar,
New Delhi - 110017
...Applicant
Versus
Bombay Mercantile Co-operative Bank Ltd.
(Through its AGM)
36, Netaji Subhash Marg,
Daryaganj, New Delhi - 110002
Also At:
Bombay Mercantile Co-operative Bank Ltd.
(Through its Managing Director)
36, Netaji Subhash Marg,
Head Office: 78, Zain Rangoonwala Building,
Mohammad Ali Road,
Mumbai - 400003
... Management
Date of Institution : 20.03.2023
Date of Award : 23.12.2024
ORDER
1. Applicant Sh. Ajay Kumar Gupta has filed present
application under Section 33C(2) of I.D. Act, 1947 seeking
direction to the management to pay Rs.3,68,603/- towards leave
encashment earned wages along with interest @ 18% per annum
till the date of realization with costs.
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Ajay Kumar Gupta Vs. Bombay Mercantile Co-operative Bank Ltd.
LC No.192/2023
2. As per the applicant, he was working with the
management on the post of OL-1 (clerical job) and retired from
the services on 31.05.2022 at the age of 58 years. It is further
submitted that at the time of retirement, the management had
made the payment of certain amount but had not made the
payment qua earned leave which as per his service record are 175
(one hundred seventy five) days and accordingly he applied for
payment against said earned leave vide letter dated 12.04.2022
after receiving the letter date 03.03.2022 through which
intimation of retirement was given to him.
3. It is averred that after retirement, the applicant visited
the Delhi branch office of management and also contacted the
Mumbai office for clearing his due against earned leave but no
attention was given to his requests. He further requested the
management vide his letters dated 20.06.2022, 22.06.2022 and
27.06.2022 to release the amount but management failed to
process its obligation till date.
4. The applicant got served a legal notice dated
12.07.2022 upon management calling upon it to release the
payment against earned leaves, but management refused to make
the payment on false and fictitious grounds by stating that
applicant was not a workman but rather was an officer and no
amount is due and payable on account of earned leaves.
5. That due to such an arbitrary, illegal, unjust and
malafide action on the part of the management, the applicant
suffered immeasurable mental agonies, financial hardship and
physical harassment and accordingly present application under
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Ajay Kumar Gupta Vs. Bombay Mercantile Co-operative Bank Ltd.
LC No.192/2023
Section 33C(2) of I.D. Act, 1947 has been filed seeking direction
to the management to pay Rs.3,68,603/- towards leave
encashment/earned wages along with interest @ 18% per annum
till the date of realization with costs.
6. The management i.e. Bombay Mercantile Co-
operative Bank Ltd. has filed reply contesting the claim inter alia
contending that the applicant is not a workman as he was
promoted/re-designated as Officer Level-I from Staff in Clerical
Cader w.e.f. 01.12.2014 vide order dated 21.11.2014 which was
duly accepted by the applicant and, hence, the present claim
application is liable to be dismissed.
7. It is further averred that applicant has deliberately
concealed the Memorandum of Understanding and Addendum of
Settlement executed on 27.10.2017 between the
management/bank and its Employees Union and Officers
Association whereby it was decided that Clause No.19 which
entitles the employees to have leave encashment to remain
inoperative till further review and no employee shall be allowed
to encash his/her privilege leave as per Clause No.19 except to
the employees retiring upto 31.03.2018 and in the case of death
of any employee. It is contended that present proceedings under
the provisions of Section 33C(2) of the Industrial Disputes Act,
1947 cannot be maintained before this court as the applicant
herein is neither the ‘Workman’ nor there is an existence of any
right in his favour. All the other averments in the claim
application have been denied in corresponding paras of reply on
merit and it is prayed that present claim application be dismissed.
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Ajay Kumar Gupta Vs. Bombay Mercantile Co-operative Bank Ltd.
LC No.192/2023
8. From the pleadings of the parties following issues
were framed vide order dated 20.09.2023 :-
(1) Whether the present petition is maintainable on
account of claimant being not a workman? OPM
(2) If issue no.1 is not decided in favour of the
management, whether the Memorandum of Understanding
arrived at between management and employees Union with
respect to withholding of leave encashment is legally binding
upon workman? OPM
(3) If issue no.1 & 2 are decided against the management,
whether the claimant is entitled to the relief claimed? OPW
(4) Relief.
9. In support of his case, applicant Sh. Ajay Kumar
Gupta got examined himself as WW-1 and tendered his evidence
affidavit as Ex.WW-1/A by reiterating the averments made in the
claim application and relying upon following documents :-
Identification Mark Description
Ex. WW-1/1 (OAR) Photocopy of Aadhar Card.
Ex. WW-1/2 Original appointment letter dated
30.08.1990.
Ex. WW-1/3 Original confirmation letter dated
25.03.1991.
Ex. WW-1/4 Original office order/relieving order
dated 22.10.2014.
Ex. WW-1/5 Copy of salary slip for the month of
May, 2011.
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Ajay Kumar Gupta Vs. Bombay Mercantile Co-operative Bank Ltd.
LC No.192/2023
Ex. WW-1/6 Original Form-N Register of Leave for
the calendar year, 2022.
Ex. WW-1/7 Copy of letter dated 12.04.2022
addressed to management.
Mark-A Photocopy of letter sent to management
through e-mail dated 20.06.2022.
Mark-B Photocopy of letter sent to management
through e-mail dated 22.06.2022.
Ex. WW-1/10 Copy of legal notice dated 12.07.2022
addressed to management.
Ex. WW-1/11 Original reply dated 27.07.2022 of
management to legal notice.
10. Applicant/WW-1 was cross-examined by AR for
management on 27.03.2024 and during the course of cross-
examination, the applicant deposed that he was lastly posted in a
Clerical Grade. He affirmed the suggestion that vide letter dated
21.11.2014 his post was re-designated as Officer Level-I w.e.f.
01.12.2014 to which he verbally tendered his protest with the
management. He further deposed that he was served with
retirement letter dated 03.03.2022 photocopy of which is marked
as Mark-X-1 and was paid retirement dues on the basis of letter
dated 15.06.2022, photocopy of which is marked as Mark-X-2.
Vide separate statement, AR for applicant closed the WE on
27.03.2024.
11. Management on the other hand got examined MW-1
Sh. Azizur Rehman Khan, Attorney of Respondent who tendered
his evidence affidavit in evidence as Ex.MW-1/A and relied upon
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Ajay Kumar Gupta Vs. Bombay Mercantile Co-operative Bank Ltd.
LC No.192/2023
following documents:-
Identification Mark Description
Ex. MW-1/1 (OSR) Photocopy of Attorney dated 09.02.2018.
Ex. MW-1/2 Original re-designation order dated
21.11.2014.
Ex. MW-1/3 Original letter dated 03.03.2022 addressed
to claimant.
Ex. MW-1/4 Original letter dated 15.06.2022 addressed
to claimant.
Ex. MW-1/5 Original Memorandum of Understanding
and Addendum of the settlement dated
27.10.2017.
Ex. MW-1/6 Original circular dated 15.12.2017 issued
by management.
Ex. MW-1/7 Original Memorandum of Understanding
dated 30.01.2019.
Ex. MW-1/8 Original Memorandum of Settlement
dated 22.12.1995.
12. MW-1/Sh. Azizur Rehman Khan was cross-examined
by AR for applicant on 16.08.2024 and during the course of
cross-examination MW-1 admitted ‘that as per the terms and
conditions of the appointment of the claimant, he was entitled for
leave encashment.’ MW-1 denied ‘that as on the date of
retirement of the claimant he was having 175 earned leaves to his
credit. Vol. he was having only 137 earned leaves to his credit.’
He admitted ‘that post of Peon and Clerks were re-designated as
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Ajay Kumar Gupta Vs. Bombay Mercantile Co-operative Bank Ltd.
LC No.192/2023
Officer Level-1 and 1-A. Again said that only the Clerks were re-
designated as Officer Level-1A and not the Peons. Even after the
re-designation of the claimant’s post from Clerk to Officer
Lever-1, his work profile as well as salary remained the same.
Again said, the work profile got changed.’ He further admitted
‘that even after re-designation to Officer Level-1, the claimant
was not provided the benefits associated with the officer level
viz. fixed petrol/books and stationery and other allowances.’
MW-1 denied ‘that the claimant post was re-designated as
Officer Level-1 only to avoid payment of his dues earned over
his tenure with the management.’ Vide separate statement MW-1
has closed the ME on 16.08.2024.
13. ARs for applicant and management have addressed
their submissions/arguments by adverting to pleadings and
testimony in support of their respective contentions.
14. I have minutely perused the record and considered
their rival submissions.
FINDINGS:-
15. Before deciding the maintainability of the present
application let us examine the scope of Section 33C(2) of
Industrial Dispute Act, 1947.
16. Section 33C(2) of the Industrial Dispute Act, 1947
reads as under:
“33C. Recovery of money due from an
employer:(1) xxxxxxxxx
(2) Where any workman is entitled to receive
from the employer any money or any benefit
which is capable of being computed in terms
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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.”
17. For the exercise of jurisdiction of the Labour Court
under Section 33C(2) of the I.D. Act, the following ingredients
are essential: (1) Workman should be ‘entitled to receive’ from
the employer any money or any benefit capable of being
computed in terms of money and (2) The question should have
arisen as to: (3) The amount of money actually due or (4) The
amount on which the money should be computed.
18. It is well settled law that jurisdiction of Labour Court
under Section 33-C(2) of the Industrial Dispute Acts, 1947 is
akin to that of an executing court and Labour Court under
Section 33-C(2) is not empowered to act as original court
adjudicating upon entitlement of the workman to the money
which do not stand adjudicated a priori as held by Hon’ble High
Court of Delhi in Vice Chancellor Vs. Dal Chand 2018 LLR 16.
19. Scope and ambit of Section 33-C(2) of I.D. Act has
been discussed in para 13 of the judgment titled “Jeet Lal Sharma
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Ajay Kumar Gupta Vs. Bombay Mercantile Co-operative Bank Ltd.
LC No.192/2023
Vs. Presiding Officer, Labour Court-IV & Anr.” 2000 IV AD
(Del) wherein Hon’ble High Court of Delhi after referring to a
series of judgments of Hon’ble Apex Court titled (i) ” Punjab
National Bank Vs. K. L. Kharbanda” reported in 1962 (1) LLJ
234; (ii) “Central Bank of India Vs. P.S. Rajagoplan” reported in
1963 (2) LLJ 89; (iii) “Bombay Gas Company Limited Vs. Gopal
Bhiva” reported in 1963 (2) LLJ 608; (iv)”Chief Engineer
Mining, East India Coal Company Limited Vs. Rameshwar”
reported in 1968 (1) Lab I.C.6 SC and (v) “Municipal
Corporation of Delhi Vs. Ganesh Razak” reported in 1995 (1)
SCC 335 has recorded following observation:
“13. When the claim is based on adjudication
or settlement it poses no difficulty. However
there may be cases where the workman
would be held entitled to receive the money
as pre-existing right on the basis of the
agreement between the employer and
employee or as per established service
conditions which have culminated into right
in favour of the workman…”
20. It was also held that application under Section 33-
C(2) of I.D. Act would be maintainable and jurisdiction of
Labour Court will not be barred merely because employer has
denied the same in case the right to get a particular benefit is
included in the service conditions. Relevant paras of judgment of
Hon’ble High Court of Delhi in Jeet Lal Sharma (supra) w.r.t
jurisdiction of Labour Court are reproduced below for reference:
“The point which is emphasized is that
entitlement to receive money i.e. pre-existing
right can be based on (1) adjudication (2)Page:9 of 14
Ajay Kumar Gupta Vs. Bombay Mercantile Co-operative Bank Ltd.
LC No.192/2023
settlement (3) service conditions. If the right
to get a particular benefit is there, the
application under Section 33-C(2) would be
maintainable and jurisdiction of Labour
Court will not be barred merely because
employer has denied the same.”
“What is the meaning of the expression
“entitlement to receive”. No doubt it is
referable to pre-existing right. However
where the workman claims a benefit flowing
from a pre-existing right and approaches the
Labour Court under Section 33-C(2) for
computation of the right in terms of money
and the employer disputes the existence of
the right, the Labour Court will have the
jurisdiction to determine the question
whether the right exists and if the existence
of right is established then to proceed to
compute the benefit flowing there from in
terms of money or on its decisions recovery
proceedings can start (New Taj Mahal Café
Private Limited versus Labour Court
reported in 1970 (2) LLN 51 and East India
Coal Company Limited (supra). In deciding
the maintainability of the application under
Section 33-C(2) what is to be looked at is the
claim set up in the applications and not what
the other side contends in its reply. The fact
that the employer by his plea raises some
dispute does not mean that jurisdiction of
Labour Court to deal with the question is
taken away.”
21. The term ‘pre-existing right’ has been discussed by
Hon’ble High Court of Delhi in Para-8 of its judgment titled
“Shri Vishnu Kumar Mangla Vs. Dhaneshwar Gupta & Sons,
2012 SCC Online Del 1233″ :
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Ajay Kumar Gupta Vs. Bombay Mercantile Co-operative Bank Ltd.
LC No.192/2023
“8 Therefore, for the maintainability of such
an application, it is a pre-condition that the
workman is “entitled to receive” money
claimed by him. This entitlement is referable
to “pre-existing right” and those pre-existing
rights would be established if it has earlier
been adjudicated upon and provided for i.e.
entitlement is recognized by the employer.
This recognition can be either in the form of
settlement or as per the service conditions.”
22. In view above settled position of law let us now
examine the facts of the present claim application.
23. In support of his case, AR for applicant argued that
applicant is workman and entitled for leave encashment of 175
days as per the service conditions of the bank i.e. Memorandum
of Settlement dated 22.12.1995 and the said fact is admitted by
MW-1 during the cross-examination. He also argued that the
Supplementary Memorandum of Settlement dated 27.10.2017 is
not applicable to the claimant as he is not a member to the Union
who has signed on it. It is also argued that the said Memorandum
of Settlement dated 27.10.2017 is a false, fabricated and
manipulated document signed by management and dummy
Union after hatching a conspiracy just for the purpose of
avoiding the payment to the workman. AR for the workman
relied upon the judgment of Dattaram Atmaram Sawant And
Anr. Vs. Vidharbha Konkan Gramin Bank, WP No.12161-2019
decided on 02nd May, 2024, Jeet Lal Sharma Vs. Presiding
Officer, Labour Court-IV & Anr. 2000 IV AD (Del), J. Bernard
Philip Leo Vs. The Assistant Director of Survey and Land
Records Coimbatore, W.P. No.19126/2017 decided on
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LC No.192/2023
28.02.2020 and Sukhram Prasad Mani Vs. The State of
Jharkhand, W.P. (S). No.2340/2019.
24. On the other hand, it is argued by AR for the
management that applicant is not a workman and he is not
entitled for present claim/leave encashment amount as per the
Supplementary Memorandum of Settlement dated 27.10.2017
agreed between the management and the Union. It is further
argued that both MOS i.e. MOS dated 22.12.1995 (heavily relied
by the applicant) and Supplementary MOS dated 27.10.2017 are
signed by the same management and Union, hence, the allegation
that the Trade Union is Dummy of management is false and
frivolous. It is further argued that there is no pre-existing right in
favour of claimant and there are issues in the present application
which needs adjudication and accordingly without adjudication
the claimant is not entitled to get relief under Section 33-C(2) of
I.D. Act. He relied upon Municipal Corporation of Delhi Vs.
Ganesh Razak reported in 1995 (1) SCC 335, Jeet Lal Sharma
Vs. Presiding Officer, Labour Court-IV & Anr. 2000 IV AD
(Del), Basant Lal Vs. Management of M/s Ferguson and
Company and Anr. 1996 (2002) DLT 770 and Bombay Chemical
Industries Vs. Deputy Labour Commissioner and Anr, 2022 (2)
Scale 903 cases.
25. In “Municipal Corporation of Delhi Vs. Ganesh
Razak” reported in 1995 (1) SCC 335 the Hon’ble Supreme
Court held that :
“The ratio of these decisions clearly
indicates that where the very basis of
the claim or the entitlement of thePage:12 of 14
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LC No.192/2023
workman to a certain benefit is
disputed, there being no earlier
adjudication or recognition thereof by
the employer, the dispute relating to the
entitlement is not incidental to the
benefit claim and is, therefore, clearly
outside the scope of a proceeding
under S. 33C(2) of the Act. The Labour
Court has no jurisdiction to first decide
the Workman’s entitlement and then
proceed to compute the benefit so
adjudicated on that basis in exercise of
its power under S. 33C(2) of the Act. It
is only when the entitlement, has been
earlier adjudicated or recognised by the
employer and there after for the
purpose or implementation or
enforcement thereof some ambiguity
requires interpretation that the
interpretation is treated as incidental to
the Labour Court’s power under S. 33-
C(2) like that of the executing Court’s
power to interpret the decree for the
purpose of its execution.”
26. In the present application the management is not only
disputing the number of days of leave encashment but also
disputing the very basis of the claim/entitlement i.e. MOU of
1995. Management is also disputing the entitlement of present
claim of the applicant on the ground that he is not a ‘Workman’
as per Industrial Disputes Act, 1947. On the other hand, applicant
is also disputing the applicability as well as genuineness of the
Supplementary Memorandum of Settlement dated 27.10.2017.
27. Hence, applying the ratio of Municipal Corporation of
Delhi Vs. Ganesh Razak reported in 1995 (1) SCC 335, the
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LC No.192/2023
present claim application is clearly outside the scope of
proceeding under Section 33C(2) of the Act. This court has no
jurisdiction to first decide workman’s entitlement and then to
compute the benefit so adjudicated under Section 33C(2) of I.D.
Act, 1947.
28. Accordingly, I am of the considered opinion that the
present claim application cannot be decided under Section
33C(2) and needs proper adjudication by way of Reference
under Section 10(1)(c) read with Section 12(5) of the Industrial
Disputes Act, 1947.
29. In view of the outcome of above findings, the present
application under Section 33C(2) of I.D. Act, 1947 is dismissed.
File be consigned to record room.
Announced in the open court on Digitally
Dt: 23.12.2024 signed by
SURENDER
SURENDER MOHIT SINGH
MOHIT Date:
SINGH 2024.12.24
17:27:38
+0530
(Dr. Surender Mohit Singh)
District Judge,
POLC-08/RACC
New Delhi
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