REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO      ……………./2008   (Arising out of SLP (Civil) No. 17518/2006)

D. Krishnan & Anr. ….Appellants

Vs.

Special Officer, Vellore Coop. S.M. & Anr.          ..Respondents

J U D G M E N T

HARJIT SINGH BEDI,J.

1. Leave granted.

2. Appellant Nos. 1 and 2 were appointed to the respondent

mill  vide  orders  dated  4th April  1977  and  19th February

1979 respectively.  Both were promoted to various posts in

the course of their service and appellant No.2 was put in

charge of the employees canteen in the year 1991 whereas

appellant  No.1  given the  same charge  in February  1996.

The appellants  claimed that as they had put in overtime

work for a specific number of hours each day, they were

entitled  to  overtime  wages  for  the  said  period.   They

repeatedly  made  representations  to  the  Labour  Welfare

Officer and to the employers claiming payment, and though

an assurance was held out to them that as a similar claim

by another employee, one Jayavelu, was pending before the

Labour Court, the decision in that case would also be made

applicable to their case.  It appears that the Labour Court,

in  the  meanwhile,  rendered  its  decision  in  favour  of

Jayavelu and he was ordered to be paid his overtime wages

which were in fact defrayed.  Frustrated in their efforts to

get the benefits given to Jayavelu, the appellants filed an

application under section 33 C(2) of the Industrial Disputes

Act, 1947 (hereinafter called the “Act”) making a claim for

overtime wages.  The respondent  submitted its counter and

took  a  specific  plea  that  the  appellants  had  not  been

directed to do any overtime work and as a matter of fact

they had never done so.  It was also pleaded that Jayavelu’s

case had no similarity vis-à-vis the case of the appellants

and that proceedings  under  section  33 C(2)  being  in the

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nature  of  execution proceedings,  the  Labour  Court  could

not have, under this jurisdiction, determined the rights of

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

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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

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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.

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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.

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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

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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

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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

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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

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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

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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

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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

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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-à-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

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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

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