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SCA/10381/2008 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10381 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.M.THAKER
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to civil judge ?
=========================================================
UMESHSING
SANJAYSING - Petitioner(s)
Versus
S.G.S.
INDIA LIMITED - Respondent(s)
=========================================================
Appearance
:
MR
TR MISHRA for
Petitioner(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 13/08/2008
ORAL JUDGMENT
In
this petition, the petitioner has challenged the order dated
29.10.2007 passed by the labour court, Jamnagar in recovery
application No.61 of 2000 whereby the labour court has rejected the
recovery application preferred by the present petitioner. Being
aggrieved by the said order dated 29.10.2007, the petitioner is
before this court.
The
petitioner approached the labour court by way of above referred
recovery application with a claim that during tenure of his
employment with the respondent, he was made to work overtime everyday
and that he was required to put in work for almost 12 hours i.e. from
9.00 a.m. to 10.00 p.m. or 11.00 p.m. everyday and the respondent was
not making payment for the said overtime work at double rate of his
normal wages. Therefore, the petitioner preferred the said recovery
application for claiming the payment of overtime work allegedly put
in by him during tenure of his employment with the respondent. As per
the discussion in the award, it transpires that the petitioner
claimed Rs.48,718.85 towards unpaid amount of overtime wages for the
period from December, 1993 to December, 1996. For such claim, the
petitioner preferred the recovery application in 2000. After
considering the application, the evidence of the petitioner and the
respondent and the scope of section 33C(2) as well as the material
available on record, the labour court rejected the recovery
application for diverse reasons including the reason that in its
view, based on the evidence available on record, the petitioner had
failed to establish his claim and that the claim made by the
petitioner was outside the scope of section 33C(2). The labour court
also found that the claim and conduct of the petitioner was not
acceptable because the petitioner had come out with the claim after
having tendered resignation and cessation of his employment pursuant
to availing benefit under VRS. The labour court also arrived at the
conclusion that the petitioner had failed to prove his allegation and
assertions in establishing his claim. Upon such findings, the labour
court rejected the recovery application.
Mr.
Mishra appears for the petitioner. At the outset, he submitted that
in view of the legal position settled by virtue of the recent
judgment of the Hon’ble Apex Court, it is true that the nature of
claim, which was made by the petitioner before the labour court,
would not be maintainable and would not fall within the purview of
section 33C(2), however, recently the Hon’ble Apex Court has referred
the issue of scope of section 33C(2) to the Larger Bench. He further
submitted that the claim of the petitioner was that he was paid at
the rate of Re.1/- for the overtime work and that he had asked for
production of certain documents however the same were not produced on
the ground that the said documents were not available since the
demand for production of documents was for such documents which
happened to be 7 to 10 years old and that therefore, the petitioner
could not establish his claim and assertions in absence of those
documents, which the respondent corporation did not produce. Mr.
Mishra also submitted that the labour court has erred in rejecting
the recovery application.
From
detail examination of the order of the labour court, it comes out
that the labour court has not rejected the recovery application
merely on the ground of limited scope of section 33-C(2). In fact,
the labour court has gone into the details of all the contentions,
which were raised by the petitioner before it and has recorded its
findings of fact on each of the grounds and all the findings of fact
are against the petitioner. During his submission, Mr. Mishra has
not been able to successfully assail the said findings of fact by the
labour court. It is pertinent that the labour court has discussed the
evidence of petitioner and has, on the appreciation and examination
of petitioner’s evidence, noticed that the petitioner admitted that
at any point of time, during his employment, the petitioner had never
raised any grievance or demand for overtime payment or for payment of
the balance amount allegedly short paid for the overtime work put in
by him and had never made any complaint in past before preferring the
application. The labour court has, thus, formed a well reasoned
opinion that the claim made by the petitioner is an afterthought
which is unjustified.
In
this view of the matter, no fault can be found with the labour court
in taking into account the said conduct of the petitioner who
approached the court with his claim for payment of wages for overtime
allegedly put in by him for the period from December, 1993 to
December, 1996, in 2000 i.e. after 4 years and that he had also
tendered resignation and availed benefit of VRS.
Besides
this, the labour court has also recorded that the petitioner, in his
evidence, admitted that he did not know at what rate the payment of
overtime was made to him. In view of the deposition of the
petitioner, the labour court arrived at a conclusion that the
petitioner failed to establish that he was paid only at the rate of
Re.1/- for the overtime work put in by him and/or that he was made to
work every day from 9.00 a.m. to about 9.00 p.m. or 10.00 p.m. The
labour court has also recorded finding of fact that primary
responsibility of proving or establishing the base of his claim was
of the petitioner and the petitioner failed to discharge the same. It
is also relevant to note that in his recovery application and in his
evidence before the court the petitioner alleged that he was made to
put in overtime work everyday for which he made the claim for the
period of three years and that too 4 years after tendering
resignation under the VRS from service. It is pertinent that the
petitioner instituted the claim for the period from December, 1993 to
December, 1996 in 2000 and after much time from the presentation of
the recovery application, the petitioner tendered application before
the labour court asking for direction against the respondent to
produce the documents. By his said application, the petitioner
demanded production of documents for the period from 1990 to 1996,
though his claim was only for the period from December, 1993 to
December, 1996. In the present case, no fault can be found with the
labour court in accepting the submission of the respondent that since
the demand for production of documents was made for 7 to 10 years old
documents the same were not traceable and/or available. This court is
also not inclined to accept that merely because the respondent could
not produce the said documents, the labour court should have drawn
adverse inference and should have allowed the recovery application.
Such
submission is not acceptable or sustainable and it would not be
justifiable to draw adverse inference when the claim is lodged after
almost 4 years and to substantiate his claim, demand for production
of documents by the opponent is made and that too for more than 6 or
7 years old documents. Such inquiry would amount to fishing and
roving inquiry. On such ground interference with the order of the
labour court cannot be made, more particularly, when the labour court
has arrived at and recorded findings of fact on other issues also
which are held against the petitioner.
Besides
this, the issue of limited scope of proceedings under section 33C(2)
is also present in this case and as per the legal position which
exists as of now the claim would not fall within the scope of section
33(C). It is true that by the judgment of the Hon’ble Apex Court the
said issue has been referred to the Larger Bench, however, the legal
position settled by the judgments of the Hon’ble Apex Court and this
Hon’ble Court prevails as of now.
Further,
in the judgment where the issue has been referred to the Larger
Bench, the point in question was regarding workman’s entitlement for
lay off compensation i.e. a statutory benefit which was allegedly
denied and was being opposed on ground that since VRS amount was
accepted, no claim would survive. In the present case, the labour
court has recorded findings of fact and on merits the petitioner
failed to establish his claim about overtime i.e. he failed to
establish that he had worked for almost 12 hours everyday and/or that
he was not paid for such overtime or that the respondent made short
payment for the overtime work put in by him.
Thus,
in view of the facts of present case and in light of the findings of
facts recorded by the labour court the said judgment of the Hon’ble
Apex Court does not help the petitioner.
On
over all consideration of the impugned order of the labour court, it
is not possible to hold that the labour court has committed any error
of jurisdiction or of law in rejecting the application and that
therefore, the present petition fails. Thus, present petition is
rejected. No order as to costs.
[K.M.Thaker,
J.]
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