STATE OF GUJARAT Vs. AMBALAL MAFATLAL PRAJAPATI

JUDGEMENT

(1.) HEARD learned advocates for the parties. The employer-opponent in Recovery Application No.1714/1998 has approached this Court under Articles 226 and 227 of the Constitution of India, challenging the order made under the Recovery application on 16.04.2009, ordering payment of Rs.31,590/- as over time wages to the employee.

(2.) THE brief facts giving rise to the present application are as under. THE workman had claimed that he was working in the department as daily rated watchman since June, 1996. THE workman was receiving wages at Rs.20 per day and except that he was not paid any other allowances. He worked in the concerned department continuously up to 04.08.1998 and his working average hours were from 8:00 to 8:00. Thus, as per the say of the workman, he discharged duties of 12 hours in a day. Whereas, he was paid wages as per the minimum wages counting 8 hours duty. His repeated request for paying him over time for the work done after the period of regular duty was unheeded. THE workman, therefore, was constrained to take out an application under Section 33-C(2) which was forcefully resisted by the employer saying that the Recovery Application for such wages would not be maintainable and workman did not work for more than 6 hours for which he was paid Rs.20/- per day as per the prevalent rules. THE applicant and opponent put up their rival cases. Ultimately, the Court came to the conclusion that the workman was entitled to receive Rs.31,590/- towards over time wages. THE Labour Court, upon the record and material available, ordered payment of Rs.31,590/- to the workman vide its order dated 16.04.2009, which is subject matter of challenge in this petition.

(3.) MR. T.R. Mishra, learned advocate for the respondent-workman at this juncture submitted that this submission is contrary to the record. MR. Mishra further contended that the employer cannot brush aside each and every demand of over time by characterizing it to be non-existing or disputed. In a given case the proposition of law laid down by the Apex Court in case of Union of India and Another Vs. Kankuben(Dead) by LRS. And Others (supra), may hold good but in a given case when workman is in a position to establish beyond doubt that he is and he was entitled to receive the over time wages, then for such a case the over time wages cannot be denied and the recovery proceedings cannot be refused on such a submission. Shri Mishra relying upon the decision of this Court in case of "State of Gujarat Vs. Akbalsing Rameshwarsing reported in 2008-I-LLJ, page-254, contended that in such a case the application under Section 33-C(2) of the Industrial Disputes Act, would certainly be maintainable. MR. Mishra further relying upon another judgment of the Division Bench of this Court in case of "Natwarlal Amrutlal Shah Vs. Employees' State Insurance Scheme reported in 2001 (4) L.L.N. 1203. He especially relying observation of Paragraph-8 in the judgment, submitted that, "Parliament in its wisdom has deliberately did not provide for any limitation under Section 33-C(2) of the I. D. Act and there was also dispute with regard to the claim of over time by the workman concerned.