Delhi District Court
R/O Rzc85 vs M/S Premier Shield Pvt. Ltd on 16 May, 2015
IN THE COURT OF SHRI NARINDER KUMAR
ADDITIONAL DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER : LABOUR COURTXIX
KARKARDOOMA COURTS : DELHI.
LCA No. 25/2012
Unique Case ID No. 02402C0 092502012
Shri Rishi Pal Singh
S/o Shri Manohar Singh
C/o Shri Sanjay Sharma - Adv.
R/o RZC85, 86, Patel Garden Karoa
New Delhi - 110 059 ............CLAIMANT
Versus
M/S Premier Shield Pvt. Ltd.
EA156, Inderpuri,
New Delhi 110 028 ............MANAGEMENT
Date of institution of the case : 30.3.2012
Date of passing the Award : 16.5.2015
A W A R D
Present Labour Claim Application came to be filed on 30.3.2012
under Section 33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred
to as the 'Act'), with prayer that the amount due to the applicant from the
management towards overtime be determined and management be directed to
pay him the amount so determined.
LCA No. 25/2012 1 of 9
Case of claimant :
2. In brief, claim of the applicant is that he remained in employment
of the management from 01.2.2011, on the post of Security Guard on monthly
wages @ Rs.7500/. He has been performing duties to the satisfaction of the
management, but the management was not providing him minimum facilities
required to be provided under labour rules. He has alleged to have worked
overtime with the management, but he was not paid overtime charges/wages.
In para No. 4 of the application , the applicant has given details of the
overtime wages issued to him as under :
(a) Overtime wages 7 hours per day as per double the rate.
(b) Monthly wages Rs.7500/.
(c) Per day wages for 8 hours Rs.250/.
(d) Per 1 hour Rs.31.25 and as per double the rate.
(e) 31.25 X 14 h Rs.437.50 per day
As claimed by him, overtime wages w.e.f. 01.2.2011 till 31.1.2012 come to
Rs.1,59,687.50.
Further, it is case of the applicant that although he repeatedly put forth
his demand before the management, the management withheld the due amount
illegally and with malafide intention . He is alleged to have made other
complaints to the Labour Department, whereupon Labour Inspector visited the
management establishment, but even then management did not pay him
overtime wages.
LCA No. 25/2012 2 of 9
Version of Management :
3. In its reply, management has opposed the claim put forth by the
applicant.
A preliminary objection has been raised regarding maintainability of the
claim. Management has pleaded that this court is not competent to exercise
jurisdiction under Section 33C(2) of the Act as to discharge functions of an
Industrial Tribunal and to entertain a claim, which is not based on an "existing
right".
Further, it has been pleaded that the matter should have been subject of
an industrial dispute by way of reference U/S 10 of the Act.
On merits, management has denied that it has not been providing
minimum wages available under labour laws. As further pleaded, the applicant
never raised any industrial dispute in respect of any such demand, although he
was in service since February 2011 as alleged by him. Management has denied
that it has been exploiting applicant to put in work for 15/16 hours, or that he
was being paid only for eight hours.
As regards details of overtime wages claimed by the applicant,
management has disputed the same while pleading that he is not at all entitled
to any such amount. As pleaded by the management, applicant has concocted
the facts to extract a sum of Rs.1,59,687.50 from it and that no payment is due
to the applicant or has been withheld.
As regard allegation of filing a complaints with Labour Office,
management has disputed the same. It has also disputed visits of any Labour
LCA No. 25/2012 3 of 9
Inspector.
Rejoinder :
4. Workman has filed rejoinder, reiterating the version put forth by
him in the claim and controverting the pleas put forth by the
respondent/management. The applicant has denied that application is not
maintainable U/S 33C(2) of the Act. In para No. 1 of the rejoinder, it has been alleged that the application is not premature, same having been filed after termination of his services. Applicant has controverted other pleas put forth in the written statement.
Points for determination :
5. From the pleadings of the parties, following issue was framed on 16.11.2012 :
"To what amount of monetary relief is workman entitled, as prayed for?"
Evidence :
6. In order to prove his case, applicant has stepped into witness box as WW1 and tendered in evidence his affidavit Ex.WW1/A and documents Ex.WW1/1 to WW1/7.
On the other hand, management has examined its Personnel Manager Shri KS Pardesi as MW1. MW1 has tendered in evidence his affidavit Ex.MW1/A .
7. I have heard learned Authorized Representatives for the parties and gone through the records.
LCA No. 25/2012 4 of 9 Discussion :
ISSUE NO. 1 : (To what amount of monetary relief is workman entitled, as prayed for?)
8. In his affidavit, applicant has testified that he joined employment with the management on 01.2.2011, on the post of Security Guard, at monthly wages to the tune of Rs.7500/. In para No. 5, he has testified about the overtime wages for the period 01.2.2011 to 31.1.2012 and that total sum due from management comes to Rs.1,59,687.50, as described above. He has also testified that despite repeated demands, management failed to pay these overtime wages and that too illegally.
9. As to the steps taken by him, applicant has tendered in evidence documents Ex.WW1/1 to WW1/7.
Ex.WW1/1 is copy of notice dt. 20.1.2012 sent to the Asstt. Labour Commissioner, by the claimant through its Union to the effect that management made him to work at the management establishment for 15 hours, as Security Guard, but did not pay overtime charges/wages and ultimately on 18.1.2012 terminated his services and as such his earned wages for the months of December and January and overtime charges since the year 2011 were due.
Ex.WW1/2 is copy of complaint dt. 06.2.2012, sent by the workman through Union to the Labour Inspector to the effect that in pursuance to his notice dt. 03.2.2012, he went to the management establishment on 04.2.2012 but he was not allowed to join duties.
Ex.WW1/3 is complaint dt. 18.2.2012, made by the workman through Union , to the Head Factory Inspector, Labour Department, complaining that LCA No. 25/2012 5 of 9 Management did not pay him overtime from February 2011 to January 2012 and that his services were terminated by the management w.e.f. 18.1.2012.
Ex.WW1/4 is copy of complaint dt. 13.2.2012 by the workman through Union to the Asstt. Labur Commissioner regarding nonpayment of yearly bonus by the management.
Ex.WW1/5 dt. 14.2.2012 is copy of complaint, by the workman through Union , to the Labour Inspector with prayer for reinstatement in service.
Ex.WW1/6 is copy of identity card purported to have been issued by the management to the applicant.
10. So far as overtime wages are concerned, in his crossexamination applicant has admitted that there was no specific written direction issued by the management for overtime. He also admitted to have not served any demand notice on the management.
11. On the other hand, MW1 Shri KS Pardesi - Personnel Officer of the management, has testified in his affidavit Ex.MW1/A about the legal objections of the management to the maintainability of claim and also denied the claim put forth by the applicant in his application as well as in the affidavit. He has further testified that workman absented from duties from 18.1.2012, without permission and information and that thereupon on 25.1.2012, Shri BK Sharma - Branch Manager of the management issued him notice but claimant did not report for duty after having received the same.
In his crossexamination MW1 denied to have received any complaint filed by the claimant with the Labour Department. It is in crossexamination of LCA No. 25/2012 6 of 9 MW1 that principal employer used to maintain attendance record of Security Guards. He further admitted regarding existing agreement between the management and principal employer.
12. Ex.WW1/7 is warning/notice dt. 25.1.2012 from the management to the applicant to the effect that he was absent since 18.1.2012 without permission and that he was required to furnish his explanation and also to join his duties.
As regards warning/notice Ex.WW1/7 to him by the management, claimant has admitted to have not replied the same, the reason being that he was unauthorizedly absent.
13. Learned AR (workman) has referred to Ex.WW1/M1 to submit that in view of this document, it can safely be said that the claimant used to do overtime job and is as such entitled to overtime for the extra work done.
A perusal of crossexamination of WW1claimant would reveal that this document initially marked as Mark A (Page 10 only) was exhibited as Ex.WW1/M1 when the workman was questioned by learned AR(Management) on this document. Workman was performing his job as Security Guard with M/S Mannapuram Gold Finance & Leasing Ltd. Workman has not examined any official from the said finance company to duly prove Ex.WW1/M1. In order to prove that he discharged his duties by putting in extra time, he should have summoned someone from the said finance company. From the cross examination of the claimant, it appears that learned AR (management) questioned him about the document Mark A (only nine pages) suggesting that it LCA No. 25/2012 7 of 9 did not bear signatures of management official, on the stamp available on it. The other question pertained to availability of stamp of the finance company (on page 10 only) of this document. . The workman admitted in his cross examination that this document Mark A did not bear signatures of any management official and that it showed attendance record as prepared by him. Simply because learned AR (management) put this document to the witness claimant in his crossexamination , it cannot be said that the management admitted the genuineness of this document. In the given situation , non examination of any official from the said finance company adversely affects the case of the claimant. Had any such official been examined by the claimant, the management would have crossexamined him on the entries regarding the time recorded in this document. By his nonexamination , management has also not been able to test the genuineness of this document. Therefore, document Mark A Ex.WW1/M1 does not help the applicant.
14. As noticed above, claimant has admitted in his crossexamination that no specific direction was issued in writing by the management to put overtime. Had any such direction been issued by the management, then the Court could say about entitlement of the workman to overtime charges and proceed to calculate amount. Management has placed on record copy of agreement Ex.MW1/W2 executed between the management and the aforesaid finance company. There is no provision in this agreement regarding payment of any overtime charges by the management in case the said finance company ever made any security guard to work overtime.
LCA No. 25/2012 8 of 9 The fact remains that workman has not led any cogent and convincing evidence that there was any provision/ service condition that workman could be asked to do overtime work or that at any point of time he actually put any extra work by way of overtime while working with the finance company, so as to hold him entitled to claim overtime charges, as prayed in the claim.
In view of the above discussion , this Court comes to the conclusion that workman has failed to prove that he is entitled to any monetary relief by way of overtime charges from the management as prayed in the claim. This issue is therefore, decided against the claimant and in favour of the management. Relief :
15. In view of the findings recorded under Issue No. 1 above, the claimant is not entitled to any relief as claimed in his claim. Claim of the claimant is accordingly dismissed.
File be consigned to Record Room.
ANNOUNCED IN OPEN COURT ON 16th Day of May 2015 (Narinder Kumar) Addl. District & Sessions Judge Presiding Officer Labour CourtXIX Karkardooma Courts, Delhi LCA No. 25/2012 9 of 9