Delhi District Court
Sh. Rahul Kumar Doddi vs Also At on 12 October, 2021
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
PRESIDING OFFICER, LABOUR COURT-IX
ROUSE AVENUE COURTS COMPLEX, NEW DELHI
LCA No. 127/18 CNR No. DLCT13-004560-2018
Sh. Rahul Kumar Doddi
S/o Sh. D Sanjeev
R/o C-19, Malviya Nagar
New Delhi-110017 ......Workman
Versus
M/s. Avante Business Solutions Pvt. Ltd.
Through its Director
Sh. Himanshu Shekhar Mishra
722, Green Heavens
Plot No. 35, Sector-4
Dwarka, New Delhi-110078
Also at:-
M/s. Avante Business Solutions Pvt. Ltd.
Through its Director
Sh. Himanshu Shekhar Mishra
Plot No. 2, Shiv Park
Old Palam Road
Dwarka, New Delhi-110078 ......Management
Date of Institution : 25.10.2018
Date of Order : 12.10.2021
LCA No. 127/18
Rahul Kumar Doddi v. M/s. Avante Business Solutions Pvt. Ltd. Page 1-14
LABOUR CLAIM APPLICATION FOR CLAIMING 3 DAYS
OUTSTANDING SALARY U/SEC. 33C (2) OF INDUSTRIAL
DISPUTES ACT, 1947
ORDER
BRIEF FACTS AND REASONS FOR DECISION :-
1. Vide my separate order I shall dispose off the present labour claim application of the workman filed u/Sec. 33C (2) of the Industrial Disputes Act, 1947 for recovery of amount due on the management.
2. The present claim is filed by the workman also in reference to Section 15(3) of The Payment of Wages Act, 1936. It is submitted by the workman that he was employed by the management on 15.01.2014 without issuing any appointment letter.
No training was provided to the workman. He was selected for the job of Business Development as Senior Executive since 15.01.2014 on monthly salary of Rs.30,000/- per month. However he was doing other work such as he accompanied the Director to receive his wife Ms. Manjula Mishra and his daughter from New Delhi railway station who were coming from Hyderabad. The workman LCA No. 127/18 Rahul Kumar Doddi v. M/s. Avante Business Solutions Pvt. Ltd. Page 2-14 was also doing work from the residence of the Director at 722, Green Heavens, Plot No.-35, Sector-4, Dwarka, New Delhi. The workman was working barefoot at the residence. The management had issued E-mail dated 23.01.2014 as provisional offer letter which was unreasonable and biased except to the salary amount which was never accepted by the workman. The management was showing to extract free of cost work from the workman without making him payment as the workman came to know that the employer was doing the same with the previous employees. When the salary was asked on 03.02.2014 then the employer denied and started using abusive language against the workman on which police was called. Salary upto 31.01.2014 was paid by the management at police station under signature of Director by Ms. Indu Phillips for a sum of Rs.17,000/-. The salary was paid at police station- Dwarka North. The management has sent frivolous legal notice dated 12.02.2014 and made false complaint before police and before ld. MM at Dwarka Court on 02.12.2015. Civil suit no. 25970/2016 before Hon'ble Dwarka Courts is pending between the parties in which the management is claiming recovery of salary paid as extortion amount paid to the workman. The management has not paid the balance amount of salary from 01.02.2014 to 03.02.2014 which comes to Rs.3,200/- taking salary LCA No. 127/18 Rahul Kumar Doddi v. M/s. Avante Business Solutions Pvt. Ltd. Page 3-14 of Rs.30,000/- for a month and taking the period of month as 30 days. The demand notice was sent to the management on 24.01.2018 and 23.05.2018 which was not responded by the management. The present claim was filed before present Court on 25.10.2018.
3. Written statement is filed by the management claiming that workman has filed his case before Deputy Labour Commissioner, Hari Nagar which was concealed by the workman. It is claimed that workman had to undergo a training for a period of 15 days only thereafter he is eligible to claim salary as full time employee of the management. Other claims of the workman are generally denied. Hence the management has prayed for dismissal of the present claim of the workman.
4. On the pleadings of the parties and averments made following issues are framed in the case on 29.01.2019:
1. Whether the workman falls within the definition of workman as provided under Section 2(s) of I.D. Act? OPW
2. Whether the workman is entitled to the recovery of amount as prayed for in the present case? OPW LCA No. 127/18 Rahul Kumar Doddi v. M/s. Avante Business Solutions Pvt. Ltd. Page 4-14
3. Relief.
5. Workman/Sh. Rahul Kumar Doddi has got examined himself as WW-1 being the sole witness in the case and closed his evidence vide separate statement of AR for workman dated 01.05.2019. The management did not produce any evidence and thereafter it was proceeded ex-parte at the stage of final arguments vide order dated 01.10.2021.
6. It is noted vide order dated 29.01.2020 the present Court has held the right of the claimant to recover due money from the management u/Sec. 33C (2) of the Industrial Disputes Act, 1947. Cost was also imposed on the management which remains unpaid. The matter was proceeded further for recording of evidence and evidence was recorded. The witness was examined and evidence was closed in the presence of management. No cross-examination of workman was done.
7. Final arguments are heard and record perused.
7.1 The AR for workman has relied on following citations:
(i) Maheshwar Singh v. M/s. Indomag Steel Technology LCA No. 127/18 Rahul Kumar Doddi v. M/s. Avante Business Solutions Pvt. Ltd. Page 5-14 Ltd. In WP (C) No. 12886/2006
(ii) Arkal Govind Raj Rao v. Ciba Geigy of India Ltd.
1985 AIR 985 8. ISSUE NO. 1
1. Whether the workman falls within the definition of workman as provided under Section 2(s) of I.D. Act? OPW 8.1 The case of the workman is under Sec. 33C (2) of Industrial Disputes Act 1947 on which there is no prescribed period of limitation in which the said application has to be filed. The same was held in case titled as Union of India (through General Manager, Western Railway) v. M. Narayana & Ors. 2001 (3) L.L.N. 946 = Equivalent citations: 2001 (90) FLR 210, (2002) IVLLJ 912 Bom from Hon'ble High Court of Bombay at para no. 8 which is reproduced hereasunder:
8. There is no doubt about the proposition of law that there is no period of limitation prescribed under Section 33-C(2) of the Industrial Disputes Act, 1947 to claim money/benefits from the employer. A workman can file such application even after 50 years claiming over time wages for the overtime work done by him while in the service of the LCA No. 127/18 Rahul Kumar Doddi v. M/s. Avante Business Solutions Pvt. Ltd. Page 6-14 employer, 50 years back. Theoretically reading the letters of law one would be right to opine that there is no limitation provided for in the said provision and the Courts cannot legislate or read any law of limitation in the said section. In my opinion the intention and purpose of the legislature in not providing for limitation is that if the workman claims his dues such as difference in wages or other amounts while in employment he would jeopardise his employment itself. It was therefore contemplated that if a workman applies for his dues within a reasonable period the claim should not be denied only on the ground of delay. The intention was -that no real, bonafide and genuine claim should suffer merely because there is some time lag. I am sure that the legislature by not prescribing the limitation intended to encourage stale and old claims to be raked up after decades. We also must realise the object of the Industrial Disputes Act was and is early and expedient settlement of industrial disputes and not to keep them alive for years or decades together. If that is done the whole purpose of the Act would be defeated, In my opinion the claim for overtime wages filed by the workmen in the year 1991 for the period from 1973 to 1979 cannot be encouraged. It must be remembered that in the huge railway administration it becomes unmanageable to maintain and preserve such old records to meet such stale and old claims of the so-called overtime work. During such a vast period sea-changes take place. Though there is no limitation prescribed under Section 33-C(2) of the Act there is absolutely no explanation given by the workmen why they had kept quiet for a period of more than 18 years. A reasonable lapse of time, perhaps need not be explained. But when there is such an unreasonable delay in the lodgment of the claims it becomes the duty of the claimants to put forward some plausible reason why they were interested to file such a claim after such a very long lapse of period. Ordinarily the workmen are not expected to say anything about the period of limitation, however, the present is an extraordinary and unusual case of delay of 18 LCA No. 127/18 Rahul Kumar Doddi v. M/s. Avante Business Solutions Pvt. Ltd. Page 7-14 years, they are certainly bound to say something about such unusual delay in claiming overtime wages. There is not even a whisper in the application filed by the workmen to explain their conduct of filing the claim, after the lapse of 18 years.
Hence the claim as filed by the workman is within the prescribed period of limitation. However the claimant has relied on Sub-Clause (3) of Section 15 of The Payment of Wages Act, 1936. As per own averments of workman his salary was Rs.30,000/- per month as per Sub-Clause (6) of Section 1 of The Payment of Wages Act, 1936. The Act is applicable when the salary of the workman does not exceed Rs.18,000/- per month. The workman has failed to show by way of evidence any higher sum of consumer expenditure survey by NSSO, the Central Government or notification in the official gazette to this effect. Hence it is held that the Payment of Wages Act is not applicable to the case of the workman.
8.2 On reading of evidence of workman which is WW1 it is established that workman was employed with the management on 15.01.2014 and thereafter his service was terminated on 03.02.2014. Since the service was not for 240 days only wage amount is claimed by the workman. Since work including non LCA No. 127/18 Rahul Kumar Doddi v. M/s. Avante Business Solutions Pvt. Ltd. Page 8-14 managerial work was taken by the workman as working at home and collecting wife and daughter of the Director from the railway station then this case falls under the definition of workman as defined under Industrial Disputes Act, 1947. Hence issue no. 1 is decided in favour of workman and against the management.
9. ISSUE NO. 22. Whether the workman is entitled to the recovery of amount as prayed for in the present case? OPW 9.1 The workman remains non cross-examined of which opportunity was given to the management hence evidence of workman remains unrebutted and unimpeached and hence can be believed.
9.2 One of the argument of management in written statement is that the no pay had to be given to workman as they had not cleared probation. However the above argument cannot be sustained in law as laid down in case titled People's Union For Democratic vs Union Of India & Others dated 18 September, 1982 Equivalent citations: 1982 AIR 1473, 1983 SCR (1) 456 as LCA No. 127/18 Rahul Kumar Doddi v. M/s. Avante Business Solutions Pvt. Ltd. Page 9-14 under.:
3. Magistrates and Judges in the country must view violations of labour laws with strictness and whenever any violations of labour laws are established before them, they should punish the errant employers by imposing adequate punishment. The labour laws are enacted for improving the conditions of workers and the employers cannot be allowed to buy off immunity against violations of labour laws by paying a paltry fine which they would not mind paying, because by violating the labour laws they would be making profit which would far exceed the amount of the fine. If violations of labour laws are to be punished with meagre fines, it would be impossible to ensure observance of the labour laws and the labour laws would be reduced to nullity. They would remain merely paper tigers without any teeth or claws.
5:1. It is true that the present writ petition cannot be maintained by the petitioners unless they can show some violation of a Fundamental Right, for it is only for enforcement right that a writ petition can be maintained in this Court under Article 32. But, certainly the following complaints do legitimately form the subject matter of a writ petition under Article 32; namely, (i) the complaint of violation of Article 24 based on the averment that children below the age of 14 years are employed in the construction work of the Asiad Projects, (ii) allegation of non- observance of the provisions of the Equal Remuneration Act 1946, is in effect and substance a complaint of breach of the principle of equality before the law enshrined in Article 14; and (iii) the complaint of non-observance of the provisions of the Contract Labour (Regulation and Abolition) Act 1970 and the Interstate Migrant Workmen (Regulations of Employment and Conditions of Service) Act 1979 as it is a complaint relating to violation of Article 21. Now the rights and benefits conferred on the workmen employed by a contractor under the provisions of the Contract Labour (Regulation and Abolition Act 1970 and the Inter-State Migrant Workmen LCA No. 127/18 Rahul Kumar Doddi v. M/s. Avante Business Solutions Pvt. Ltd. Page 10-14 Regulation of Employment and Conditions of Service) Act 1979 which became enforceable w.e.f. 4-6-1982 are clearly intended to ensure basic 462 human dignity to the workmen and if the workmen are deprived of any of these rights and benefits to which they are entitled under the provisions of these two pieces of social welfare legislation, that would clearly be a violation of Article 21 by the Union of India, the Delhi Administration and the Delhi Development Authority which, as principal employers, are made statutorily responsible for securing such rights and benefits to the workmen; and (iv) the complaint in regard to non-payment of minimum wage to the workmen under the Minimum Wages Act 1948, is also one relating to breach of a Fundamental Right enshrined in Article 23 which is violated by non-payment of minimum wage to the workmen....
5:4. The word "begar" in Article 23 is not a word of common use in English language, but a word of Indian origin which like many other words has found its way in English vocabulary. It is a form of forced labour under which a person is compelled to work without receiving any remuneration. Begar is thus clearly a film of forced labour. S. Vasudevan v. S.D. Mittal AIR 1962 Bom. 53 applied.
5:5. It is not merely 'begar' which is constitutionally prohibited by Article 23 but also all other similar forms of forced labour. Article 23 strikes at forced labour in whatever form it may manifest itself, because it is violative of human dignity and is contrary to basic human values. To contend that exacting labour by passing some remuneration, though it be inadequate will not attract the provisions of Article 23 is to unduly restrict the amplitude of the prohibition against forced labour enacted in Article 23. The contention is not only ill founded, but does not accord with the principle enunciated by this Court in Maneka Gandhi v. Union of India that when interpreting the provisions of the Constitution conferring LCA No. 127/18 Rahul Kumar Doddi v. M/s. Avante Business Solutions Pvt. Ltd. Page 11-14 fundamental rights, the attempt of the Court should be to expand the reach and ambit of the fundamental rights rather than to attenuate their meaning and content. The Constitution makers did not intend to strike only at certain forms of forced labour leaving it open to the socially or economically powerful sections of the community to exploit the poor and weaker sections by resorting to other forms of forced labour. There could be no logic or reason in enacting that if a person is forced to give labour or service to another without receiving any remuneration at all, it should be regarded as a pernicious practice sufficient to attract the condemnation of Article 23, but if some remuneration is paid for it, then it should be outside the inhibition of that Article. To interpret Article 23 as contended would be reducing Article 23 to a mere rope of sand, for it would then be the easiest thing in an exploitative society for a person belonging to a socially or economically dominant class to exact labour or service from a person belonging to the deprived and vulnerable section of the community by paying a negligible amount of remuneration and thus escape the rigour of Art. 23. It would not be right to place on the language of Article 23 an interpretation which would emasculate its beneficient provisions and defeat the very purpose of enacting them. Article 23 is intended to abolish every form of forced labour.
In these circumstances of the case Section 33 C (2) of Industrial Disputes Act, 1947 is held applicable and the workman is held entitled to recovery of Rs.3,200/- from the management as his three days salary from 01.02.2014 to 03.02.2014. The workman is also held entitled for interest on the salary @9% p.a. from date of filing of this claim till the recovery of due amount as LCA No. 127/18 Rahul Kumar Doddi v. M/s. Avante Business Solutions Pvt. Ltd. Page 12-14 pendentelite and future interest. The workman has claimed interest @18% which workman fails to justify that how he could have earned such interest on the wage money received by him. The workman demanded compensation for a sum of Rs.32,000/- for delay in making of this payment claiming that penalty upto 10 times can be imposed upon the employer for not making the due payment. However, it is already held that The Payment of Wages Act 1936 is not applicable to the case of the workman and hence no compensation is allowed to the workman to this effect. The cost of litigation is awarded to the workman for the reason that the management did not cross examined the workman but also did not led any evidence and delayed the due course of justice unjustifiably. Hence cost for a total sum of Rs.15,000/- under Sub- Clause (7) of Section 11 of Industrial Disputes Act, 1947 is allowed to the workman.
10. ISSUE NO. 3: R E L I E F 10.1 In view of findings under issues above the order is passed accordingly wherein workman is held entitled to recovery of Rs.3,200/- from the management as his three days salary from 01.02.2014 to 03.02.2014. The workman is also held entitled for LCA No. 127/18 Rahul Kumar Doddi v. M/s. Avante Business Solutions Pvt. Ltd. Page 13-14 interest on the salary @9% p.a. from date of filing this claim till the recovery of due amount as pendentelite and future interest. The workman is also awarded the cost of litigation for a total sum of Rs.15,000/- under Sub-Clause (7) of Section 11 of Industrial Disputes Act, 1947. Accordingly application stands disposed off.
File be consigned to record room after due compliance. Announced in the open Court on 12.10.2021. JOGINDER Digitally signed by JOGINDER PRAKASH PRAKASH NAHAR Date: 2021.10.18 NAHAR 15:47:36 +0530 (JOGINDER PRAKASH NAHAR) PRESIDING OFFICER LABOUR COURT-IX ROUSE AVENUE COURT COMPLEX/NEW DELHI LCA No. 127/18 Rahul Kumar Doddi v. M/s. Avante Business Solutions Pvt. Ltd. Page 14-14