Natwarlal Amrutlal Shah vs Employees State Insurance Scheme

J.N. Bhatt, J.—A short, but interesting question, which has figured in this Letters Patent Appeal under Clause 15 of the Letters Patent is, as

to whether the impugned order of the learned single Judge, whereby, the claim for an amount of Rs. 2,06,068/- made by the respondent-

workman, who was working with E.S.I. Scheme, Ahmedabad, towards overtime wages due and payable, setting aside the order passed by the

Labour Court, is justified or not, to which our answer, upon assessment and evaluation of the facts and circumstances and the principles of law is,

in the negative, in favour of the workman, for the following reasons.

At this stage, admitted aspects may be narrated so as to comprehend, fully, the merits of this Letters Patent Appeal.

The appellant was appointed as watchman with respondent-E.S.I. Scheme, Ahmedabad (hereinafter known as ''the Corporation''). He made an

application for the recovery of dues of overtime, etc. before the Labour Court. The Recovery Application No. 2082 of 1990 was granted on 16-

5-1994 against the respondent. Thus, the amount of Rs. 2,06,068/- towards overtime was granted, and accordingly, direction was issued to the

respondent-Corporation for payment, which came to be questioned by the respondent by filing Special Civii Application No. 2294 of 1995, which

came to be allowed by the learned single Judge. Hence, this Letters Patent Appeal under Clause 15 of the Letters Patent.

There is no dispute about the fact that the appellant was working as a watchman and he was working from 8-00 p.m. to 8-00 a.m. The

respondent in its reply, as at Ex. 4, before the Labour Court, has in clear terms stated that the appellant-original applicant workman was engaged

as a watchman, who had to work from 8-00 p.m. to 8-00 a.m. Thus, it is an admitted fact that the appellant was working 12 hours in a day. There

is, also, no dispute about the fact that the workman has to work for a period of 8 hours and any work taken by the master beyond the period of 8

hours is subject to overtime payment as per the Rules prevalent, at the relevant time.

The Labour Court, considering the facts and circumstances, found the case of the appellant justified, and therefore, granted the application u/s

33C(2) of the Industrial Disputes Act and awarded the amount towards the overtime claim made by the appellant to the extent of Rs. 2,06,068/-

against the original claim of Rs. 2,22,009.85 ps.

The respondent being aggrieved by the order of the Labour Court, questioned the same before the learned single Judge, successfully, and

hence, at the instance of the original applicant, this Letters Patent Appeal, before us.

The appellant, original-applicant, had invoked the powers u/s 33C(2) of the Industrial Disputes Act, 1947, which reads as under :

33-C(2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms 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 president 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.

Making an application u/s 33C(2) of the I. D. Act, the appellant claimed the aforesaid amount towards the overtime dues which were not

disputed by the other side. It appears that the learned single Judge has rejected the claim and has set aside the order of the Labour Court, mainly,

on the ground of making such a claim before the Labour Court late. In other words, the delay is held to be fatal in claiming the overtime amount. In

our opinion, the approach of the learned single Judge, with due respect, is not in consonance with or compatible to the relevant proposition of law

on this score. In our opinion, the very aim, design and desideratum of the provisions of Section 33C(2) of the I. D. Act, while viewed in the light of

the benevolent legislation, and that too, in absence of any specific provision with regard to prescription of time for the recovery of amount with the

help of Section 33C(2), cannot be construed to limit and circumscribe the right of the workman for the recovery of the legitimate dues payable by

the master or the management concerned. In our opinion, therefore, rejection of the claim in the impugned judgment of the learned single Judge on

the ground of delay is not justified. We may make it clear that failure of the Legislature to make any provision for limitation cannot be deemed to be

an accidental omission. In the facts and circumstances and keeping in mind the benign provisions, of a weaker sections of the society, it would be

legitimate to infer that the Parliament in its wisdom has deliberately did not provide for any limitation u/s 33C(2). Even from the different

perception, a workman or a person who is the beneficiary u/s 33C(2) of the I. D. Act, hails from a lower strata of the society and he would not be

conscious of the period of limitation for the recovery of legitimate dues. In all probabilities, this may be one of the reasons, Parliament has not

prescribed the period of limitation for the recovery of said dues while incorporating provisions in Section 33C(2) of the I. D. Act.

The view, which we are inclined to take, at this juncture, is very much reinforced by host of decisions and pronouncements of the Apex Court.

However, we cannot resist the temptation of mentioning two decisions, at this juncture :

(1) Decision rendered in Bombay Gas Co. Ltd. Vs. Gopal Bhiva and Others, .

(2) Decision rendered by the Apex Court in The Punjab Co-operative Bank Ltd. Vs. R.S. Bhatia (Dead) through Lrs., .

We have, therefore, no hesitation in finding that the appellant, original applicant workman, is entitled to the amount due and payable towards

arrears of overtime by the respondent-Corporation, and therefore, while reversing the order of the learned single Judge, the order of the Labour

Court is required to be restored.

Accordingly, this appeal is allowed. The impugned judgment of the learned single Judge is quashed and set aside and the order of the Labour

Court is restored. The respondent-Corporation is directed to pay the amount due and payable to the appellant, as expeditiously as possible, but

not later than 30th April, 2001, failing which, the Corporation shall liable to pay interest at the rate of 12 percent per annum from 1st May, 2001,

till the date of payment, with cost which is quantified at Rs. 2,000/-.

In view of the order passed in the main Letters Patent Appeal, the Civil Application does not assume any survival value. Hence, it shall stand

disposed of accordingly. Rule discharged.

Rule discharged.