Delhi District Court
Applicant / vs M/S. B. S. E. S. Yamuna Power Ltd on 1 February, 2017
Sumer Singh Vs. M/s. B.S.E.S.YPL & Anr. LCA No. 669/16
BEFORE LABOUR COURT - XI: KARKARDOOMA COURTS: DELHI
PRESIDING OFFICER: Mr. ANAND SWAROOP AGGARWAL
(Delhi Higher Judicial Service)
(Additional District & Sessions Judge, Delhi)
LABOUR COURT APPLICATION No. 669/16
UNIQUE CASE IDENTIFICATION NO.: 02402C0265202013
In the matter of:
Sumer Singh s/o. Sh. Kabool Singh,
R/o. Patti Rampur Khekra, Railway Road,
Near Block, Kasba Khekra,
Distt. Baghpat, U.P.,
through Mr. V K Sharma (President),
A.P.S. & SSW Employees Union (Regd.)
5/24, Nehru Ekta Colony, SecVI, R. K. Puram,
New Delhi - 22.
..... Applicant / Workman / Complainant
Vs.
1. M/s. B. S. E. S. Yamuna Power Ltd.,
through Chief Executive Officer,
Shakti Kiran Building, Opp. Karkardooma Courts,
Delhi - 110092.
2. The Contractor
M/s. Property Guards Security Services Pvt. Ltd.
RZ - 379/21, Tughlakabad Extn.,
New Delhi - 110019.
.... Managements
Date of institution : 21.08.2013
Date of reserving for decision : 30.01.2017
Date of decision : 01.02.2017
LABOUR COURT APPLICATION UNDER SUB - SECTION (2) OF
SECTION 33C OF THE INDUSTRIAL DISPUTES ACT, 1947
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DECISION:
1. CASE OF APPLICANT / WORKMAN AS PLEADED IN APPLICATION
UNDER SUB - SECTION (2) OF SECTION 33C OF THE INDUSTRIAL
DISPUTES ACT, 1947
"1. That the applicant / workman has been working as security guard with the
management w.e.f. 31.09.2010 most sincerely and diligently and his last drawn
salary was Rs.5500/ per month.
2. That the management was not paying the applicant / workman wages @
overtime wages, rate of double prescribed by the Delhi Government. The
management was taking duty of 12 to 16 hours ad day although and the applicant
is thus, entitled to receive the following of over time wages at the rate of double
wages less paid to him.
Period 0110.2010 to 31.12.2010
Calculation performa overtime hours one month 152 hours ...... 4 = 38 duty in
month x per day rate.
Period 01.01.2011 to 31.12.2010
114 duty x 203 = 23,142/
Period 01.01.2011 to 31.12.2011 12 months
38 x 12 = 456 x 256 = 1,16,736/
Period 01.01.12 to 05.04.2012
38 x 3 = 114 x 256= 29, 184/
Calculation of minimum wages arrears
01.01.2010 to 31.12.2010 rate of minimum wages is Rs.5278 ÷ = 203 paid amount
4000 + 550 = 4550 less amount 728 per month x 3 = 2184
01.01.2011 to 30.08.2011 minimum wages Rs.6656 ÷ 26 = paid amount 5000 +
687 - 7752 with 9936/
Total Rs.1,78,998/
Leave per annum 45 days 45 x 3 = 135 x 256 = 34, 560
Total Rs. 2,13,558/
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3. That the management had not been allowing the applicant / workman to
avail earned leave, and National holiday and festival holidays from 01.10.2010 to
05.04.2012 and the applicant is thus entitled to receives wages against leave and
over time wages.
4. That the management was not paying overtime wages and double the wages
to the applicant and was taking 12 to 16 hours duty daily although from the day of
this appointment and the workman is entitled to received following payments
against overtime wages etc. The applicant / workman is thus entitled to received
Rs. 2,13,558/ (Rupees two lacs thirteen thousand five hundred fifty eight only)
from the management as existing wages and benefits provided under the Delhi
Govt. Act and shop and establishment Act.
It is, therefore most respectfully prayed that the Hon'ble court may kindly
be pleased to determine the aforementioned existing wages against a leave /
difference overtime wages less paid wages etc. in favour of the applicant in the
facts and circumstances of the case as explained above, in the interest of justice."
1A. Pursuant to order dated 06.08.2016, ld ARW filed CHART OF LEGAL
DUES CORRECT AMOUNT AS PER CALCULATION with the following
details.
"OVERTIME WAGES @ DOUBLE
That the work man every day 4 hours duty as per one duty and also
all Sundays two duty total Duties in a month 38 Duties :
1. Period of 01022010 to 3112011 = 12 Months
Minimum wage Rs.5278 per day amount 203/
Per month 152 Hours - 4 = 38 Duties x 38 = 7714 X 12 = 92568
Period 1022011 to 13022012 12 Months 12 days MW
5278 per day Rs.203/ PM 38 duties x 203 = 7714 PM x 12 months x 12
days = Rs.95004/
2 MINIMUM WAGE ARREARS
(a) Period - 27012010 to 30082010 = 7 months
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MW 5278 paid 4550 less paid 728 P.M. x 7 months = Rs.5096/
(b) 1022011 to 30082011 = 7 months
MW 6656 paid 5687 less paid Rs.969 per month 969 x 7 = 6,783/
LEAVE AMOUNT
As per shops and Establishment Act 15 days per year claim last 3 years
15 days x 3 years = 45 days x Rs.256 Per day Rs.11,520/
Total amount 210971"
1B. On 30.01.2017 also ld. ARW filed another CALCULATION CHARTII.
2. CASE AS PLEADED BY B.S.E.S. YPL MANAGEMENT NO.1 IN
WRITTEN STATEMENT OF DEFENCE.
No employer - employee relationship ever existed and / or exists between
management no.1 and the workman. Claimant being an employee of management
no.2 was working under the direct control and supervision of the contractor /
service provider. The contractor namely M/s. Property Guards Security Service
Pvt. Ltd. is a separate legal entity and is registered under Company Act. BSES has
no control on the management no.2. The service provider has independent legal
identity and has separate PF & ESIC Code for compliances. Its PF Code is
MH/44568 and ESI Code is 20310433950011001. The contractor / service
provider is fully and solely responsible for payment of wages and other benefits as
claimed. The contractor / service provider is engaged by BSES for providing
security services. Since there is no employer - employee relationship between the
claimant and management no.1, the question of allowing or denying the earned
leave, National and festival holiday by the management no.1 does not arise. At last
management no.1 prayed for dismissal of application in hand.
3. CASE AS PLEADED BY M/S. PROPERTY GUARDS SECURITY
SERVICES PVT. LTD. (MANAGEMENT NO.2) IN THE WRITTEN
STATEMENT OF DEFENCE.
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Management no.2 in the WS, while denying the case as pleaded by
workman in the labour court application, pleaded that claim (LCA) regarding the
service of the complainant is matter of record that when he had joined the services
of the management and on what salary he was working with the management. The
management no.2 has never terminated the services of workman in any manner and
it is the workman himself who abandoned the services of the management w.e.f.
04.04.2012 and inspite of the best efforts to resume his services made by
management no.2, workman did not join the services with the management. There
is nothing due towards the workman from the management no.2 because the
workman has taken his entire dues from the management before the Deputy Labour
Commissioner, and he has signed the paper in this regard before him. The
allegations levelled against the management regarding due payment, chargesheet,
notice, inquiry, ESI and EPF do not arise because the management no.2 has never
debarred any of its employees from their legal benefits but this workman himself
has abandoned the services of the management no.2 on his own without any prior
information and any kind of notice to the management no.2 and because of this
misconduct the management has suffered a lot. Management no.2 denied that it
has ever taken a duty from the workman more than 12 to 16 hours in a day and had
not paid to the workman against the overtime work performed by him.
Management no.2 had always paid to the workman as per work performed by him
according to the system prescribed and determined as per law and there is nothing
pending towards the workman and against the management no.2 under any of the
heads as mentioned in labour court application. There arises no question of not
paying of wages to any of the workman by the management no.2. Management
no.2 has always paid to its entire workmen their salary and wages regularly as per
the law. The management no.2 has never taken any overtime work from the
workman more than the duty period / hour as determined by the system of the
management. The averments regarding the wages of the workman and its
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pendency or non payment by the management no. 2 are wrong and denied. Even
the contents regarding the working hours of the workman from 12 to 16 hours in a
day are also wrong and denied. The facts regarding minimum wages arrears of the
workman are also wrong and denied because, as such, no amount of workman is
pending with the management no.2. Even no overtime amount is pending with the
management no.2 because management no.2 has never taken the any overtime
from the workman. The management no.2 had never stopped the workman to avail
the time (sic) of national holiday and other important festivals during the course of
his employment with the management no.2. At last management no.2 pleaded that
workman is not entitled to any relief from management no.2.
4. REJOINDER
Workman filed common rejoinder to the separate WSs of both the
managements denying the stands taken by the managements.
5. ISSUES
On 25.08.2014 court passed the following order:
"25.08.2014
Present: Mr. V K Sharma, ARW.
None for management no.1
Mr. S K Ojha, adv. for management no.2 with Mr.
Sunil Singh, Head (Operations) with the
management.
Copy of the documents filed by management no.2
on 14.08.2014 supplied to ld. ARW. Put up at after lunch for
orders.
Sd/
(ANAND SWAROOP AGGARWAL)
POLC - XI / KKD / DELHI / 25.08.2014
Present: None.
Vide separate detailed order application moved by
workman seeking production of records from management
stands disposed off with certain observations. On the basis of
material available on judicial file following issues are framed:
(i) Whether workman is entitled to recover a sum of
Rs.2,13,558/ in terms of averments made in LCA under section
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33 C (2) of the Industrial Disputes Act, 1947? If so, from which of
the managements? OPW
(ii) Relief.
No issue is being framed regarding limitation aspect
inasmuch as provisions of Limitation Act, 1963 do not apply to
proceedings under Industrial Disputes Act, 1947. Also, Industrial
Disputes Act, 1947 does not provide any limitation for filing an
application under section 33 C (2) of Industrial Disputes Act,
1947. Also, issue of abandonment of his services with
management no.2 by the workman is not relevant for the
purposes of present application under section 33 C (2) of
Industrial Disputes Act, 1947. Proceedings dated 10.06.2013
pertains to payment of arrears of wages only. Put up for WE on
26.09.2014. Management no.1 to file documents in terms of
order passed separately."
6. APPLICATION MOVED BY WORKMAN FOR SUMMONING THE
RECORDS FROM THE MANAGEMENTS.
On 22.03.2014 workman moved an application for summoning certain
documents from the management no.1 and no.2. This application was disposed of
vide separate detailed order in following terms:
" ORDER
25.08.2014
1. This order shall disposed off an application moved on
22.03.2014 by workman for summoning following record(s) from
the managements, i.e., (i) Full Attendance sheet; (ii) Overtime
register; (iii) Leave register; (iv) Wages register; (v) Bonus register;
(vi) Appointment letter and (vii) Contractor Agreement etc.
2. Both the managements contested the applicationinhand.
Management no.1 replied that the question of management no.1
having the abovesaid record(s) or being responsible for not
producing the same does not arise as workman has never been an
employee of management no.1. However, management no.1
produced the agreement between management no.1 and
management no.2. In this manner, request of workman for
producing the Contractor Agreement vide sl. no. (vii) stands
satisfied.
3. Management no. 2 in the reply stated that the management
never kept the documents in their possession more than one year
after the expiry of any contract and management used to destroy
the entire documents after the expiry of any contract. Also,
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management no.2 pleaded that entire documents mentioned by
workman in para. no. 2 of application have already been destroyed
by management as these are very old documents. Management
no.2 also pleaded that workman himself abandoned his services
after taking his full and final from management no.2. Management
no.2 also filed an affidavit of Mr. Sunil Singh as regards reasons for
non production of record(s) by the management no.2.
4. I have heard Sh. V. K. Sharma, ARW, Sh. Rajesh Kumar,
adv. proxy counsel for Ms. Ritu Gupta, adv. for management no.1
and Mr. S. K. Ojha, adv. for management no.2. and gone through
material available on judicial file with very carefully.
5. Management no.1 has filed on judicial record its agreement
with management no.2 but it has pleaded that there is no question
of management no.1 having the record(s) production of which is
sought for by the workman. In a way management no.1 has
expressed its inability to produce the record(s) sought by the
workman. Be that as it may. Obviously, management no.1 must
be possessing all those record(s) which it was supposed to receive
from management no.2 in terms of the agreement between both the
managements. The case is at its initial stage of trial; the effect of
nonproduction of abovesaid record(s) by management no.1 shall be
considered during the trial of this case or at the time of its final
disposal. However, it is deemed appropriate to give a liberty / an
opportunity / direction to management no.1 to file on record
necessary documents which it might have received from
management no.2 in terms of its agreement with management no.2
with regard to employment of workman and concerning the claims
made by workman herein. Management no.1 to produce such
documents within 20 days from today without fail. Obviously, legal
consequences will follow on account of non production of abovesaid
documents.
There is no dispute as regards maintenance, by management no.2,
of record(s) which is sought be to be produced from the
managements by the workman. No direction for production of
record(s) can be given to management no.2 in view of reply
submitted by it. Obviously, in the course of trial management no.2
shall show that as per law it was entitled to destroy the record(s) in
terms of its reply. If management no.2 fails to do so, legal
consequences will follow in due course. Also, on account of
management no.2 destroying the record(s) workman shall be
entitled to prove his case on judicial file through other lawful means
with the permission of Court, if any, so required. Also, it is noted
that as per noting dated 10.06.2013 only the payment of arrears of
wages was made.
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6. Application moved by workman stands disposed off in view
of above observations."
7. EVIDENCE
Workman examined himself as WW1 Mr. Sumer Singh. Management no.2
examined MW1 Mr. Sunil Singh, Manager. Management no.1 examined MW2
- Mr. Rakesh Koul, Deputy General Manager.
8. ARGUMENTS
I have heard Mr. V K Sharma, Adv for workman, Ms. Ritu Gupta, Adv for
management no.1 and Mr. S. K. Ojha, Adv for management no.2. Written
arguments have also been filed by management no.2. I have gone through the
material available on judicial file very carefully.
9. My ISSUEWISE findings are as under:
ISSUE No.1
Whether workman is entitled to recover a sum of Rs.2,13,558/ in terms of
averments made in LCA under section 33 C (2) of the Industrial Disputes
Act, 1947? If so, from which of the managements? OPW
As per workman he was employed with the management since 31.09.2010
till 05.04.2012. By the application in hand workman is seeking to recover overtime
wages inasmuch as management was taking duty for 12 to 16 hours a day from the
workman. Also workman is claiming arrears of wages (e.g. the difference between
wages paid and minimum wages) paid to the workman inasmuch as workman was
allegedly paid wages less than minimum wages. Further workman is claiming
leave encashment.
Case of the management no.1 is that there existed no employer - employee
relationship between the management no.1 and workman, and workman was an
employee of management no.2 with whom management no.1 had contract for
providing security services. As per management no.1 workman worked under the
direct control and supervision of his employer namely management no.2 /
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contractor / service provider.
As per management no.2 claims of the workman regarding his date of
joining of service with the management and salary which was being paid to him are
matters of record. However management no.2 pleaded that it never terminated the
service of workman and it is the workman himself who abandoned his service with
management no.2 w.e.f. 04.04.2012.
Here management no.1 and no.2 had entered into a contract.
Clause 10 of said contract reads as under:
"10.0 Security Agency shall maintain following registers / logbooks and
present it for inspection by OfficerinCharge of the company. (At the cost of
Security Agency)
10.1 Material Inward register, AnnexureVII
10.2 Material outward register, AnnexureVII
10.3 Material Issued on returnable basis - Annexure - VIII
10.4 Vehicle Movement Register - Annexure - IX,
10.5 Format for night checking - AnnexureX,
10.6 Mobile Van Register - AnnexureXI
10.7 Report on Mock drill - Annexure - XII
10.8 Daily attendance record - AnnexureXIII
10.9 Certificate for Compliances of Statutory Laws - AnnexureXV."
Clause 13 of said contract reads as under:
"13.0 Payment Terms:
13.1 The Security Agency shall raise monthly bills in the 1 st week of every
month for the previous month strictly in the format provided by the
Company. The Security Agency shall submit the following documents
alongwith the Invoice for its certification by the Officer - in - charge. Officer
incharge shall certify the Bills within 3 days for its onward transmission to
finance department:
13.1.1 Invoice. (One bill for one month)
13.1.2 Challans evidencing deposit of Provident Fund.
13.1.3 Challans evidencing contribution of ESIC.
13.1.4 Copy of Attendance Register.
13.1.5 Report on Security Checks done during the month,
13.1.6 Copy of the Inspection registers duly signed by Officerin
Charge of the company......"
Clause 15 of said contract reads as under:
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"15.0 Statutory Obligations:
The Security Agency shall take all steps, necessary or
otherwise, to comply with the various applicable laws / rules /
regulations / notifications, including, but not limited to, the provisions of
Contract Labour (Regulation & Abolition Act), 1970 as amended, Minimum
wages Act, 1948. Workmen's Compensation Act, 1923 as amended,
Employees State Insurance Act 1948, Employees Provident Funds and
Miscellaneous Provisions Act, 1952, Payment of Bonus Act, 1965, and all
other applicable laws and rules framed there under including any statutory
approval required from the Central / State Governments, Ministry of
Labour".
In addition to clause no. 15, as reproduced hereinabove, management no.2
is bound to comply with the provisions of the Acts namely (1) The Payment of
Wages Act, 1936 (4 of 1936); (2) The Industrial Disputes Act, 1947 (14 of 1947);
(3) The Minimum Wages Act, 1948 (11 of 1948); (4) The Employees' Provident
Funds and Miscellaneous Provisions Act, 1952 (19 of 1952); (5) The Payment of
Bonus Act, 1965 (21 of 1965); (6) The Contract Labour (Regulation and Abolition)
Act, 1970 (37 of 1970); (7) The Payment of Gratuity Act, 1972 (39 of 1972); (8)
The Equal Remuneration Act, 1976 (25 of 1976) and (9) The InterState Migrant
Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (30 of
1979 as mentioned in THE SCHEDULE to the Private Security Agencies
(Regulation) Act, 2005 in view of section 13 (1) (j) of the Private Security
Agencies (Regulation) Act, 2005. Rules 74, 76, 77, 78 and 80 of the Contract
Labour (Regulation and Abolition) Central Rules, 1971 read as under:
"74. Register of contractors - Every principal employer shall maintain in
respect of each registered establishment a register of contractors in Form
XII.
76. Employment Card (i) Every contractor shall issue an employment card
in Form XIV to each worker within three days of the employment of the
worker.
(ii) The card shall be maintained upto date and any change in the
particulars shall be entered therein.
77. Service Certificate - On termination of employment for any reason
whatsoever the contractor shall issue to the workman whose services have
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been terminated a Service Certificate in Form XV.
78. Muster Roll, Wages Registers, Deduction Register and Overtime
Register - (1) (a) Every contractor shall in respect of each work on which he
engages contract labour
(i) maintain a Muster Roll and a Register of Wages in Form XVI and Form
XVII respectively:
Provided that a combined Register of Wage - cum - Muster Roll in
Form XVIII shall be maintained by the contractor where the wage period is
a Fortnight or less;
(ii) maintain a Register of Deduction for damage or loss, Register of Fines
and Register of Advances in Form XX, Form XXI and Form XXII
respectively;
(iii) maintain a Register of Overtime in Form XXIII recording therein the
number of hours of, and wages paid for, overtime work, if any;
(b) Every contractor shall, where the wage period is one week or more,
issue wage slips in Form XIX, to the workmen at least a day prior to the
disbursement of wages;
(c) Every contractor shall obtain the signature or thumb impression of the
worker concerned against the entries relating to him on the Register of
Wages or Muster Roll - cum - Wages Register, as the case may be, and the
entries shall be authenticated by the initials of the contractor or his
authorised representative and shall also be duly certified by the authorised
representative of the principal employer in the manner provided in rule 73.
(d) In respect of establishments which are governed by the Payment of
Wages Act, 1936 (4 of 1936) and the rules made thereunder, or Minimum
Wages Act, 1948 (11 of 19848) or the rules made thereunder, the following
registers and records required to be maintained by a contractor as employer
under those Acts and the rules made thereunder shall be deemed to be
register and records to be maintained by the contractor under these rules,
namely :
(a) Muster Roll;
(b) Register of Wages;
(c) Register of Deductions;
(d) Register of Overtime;
(e) Register of Fines;
(f) Register of Advances;
(g) Wage Slip;
(2) Notwithstanding anything contained in these rules, where a
combined or alternative form is sought to be used by the contractor to avoid
duplication of work for compliance with the provisions of any other Act or
the rules framed thereunder for any other laws or regulation or in cases
where mechanised pay rolls are introduced for better administration,
alternative suitable form or forms in lieu of any of the forms prescribed
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under these rules, may be used with the previous approval of the Regional
Labour Commissioner (Central).
80. (1) All registers and other records required to be maintained under the
Act and rules, shall be maintained complete and uptodate, and, unless
otherwise provided for, shall be kept at an officer or the nearest convenient
building within the precincts of the workplace or at a place within a radius
or three kilometers.
(2) Such registers shall be maintained legibly in English and Hindi or in the
language understood by the majority of the persons employed in the
establishment.
(3) All the registers and other records shall be preserved in original for a
period of three calendar years from the date of last entry therein.
(4) All the registers, records and notices maintained under the Act or rules
shall be produced on demand before the Inspector or any other authority
under the Act or any person authorised in that behalf by the Central
Government.
(5) Where no deduction or fine has been imposed or no overtime has been
worked during any wage period, a 'nil' entry shall be made across the body
of the register at the end of the wage period indicating also in precise terms
the wage period to which the 'nil' entry relates, in the respective registers
maintained in Forms XX, XXI, and XXIII respectively."
IN THE CASE IN HAND, this Court is concerned ONLY with claims of
workman towards overtime wages, wages paid less than minimum wages and leave
encashment and is not concerned with the circumstances under which relationship
of employer and employee ceased to exist between management no.2 and the
workman.
ON THE BASIS OF EVIDENCE ON RECORD it is evident that workman
was an employee of management no.2 / the contractor / service provider, who had a
contract for providing security service with management no.1 (the principal
employer).
CLAIMS OF WORKMAN ARE towards overtime wages, wages paid less
than minimum wages and leave encashment for the period of employment of
workman. Workman is claiming overtime wages for four hour overtime work
daily and eight hours overtime work on four Sundays in a month at the rate double
of the normal minimum wages. Workman is claiming overtime for 38 duties (i.e.
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each day extra work for 4 hours on 30 days in a month is equal to one duty on each
day and eight hours work on each Sunday is equal to 2 duties on each Sunday) per
month for the period of his employment.
WORKMAN IS ALSO CLAIMING difference of wages paid to him and
the minimum wages. LASTLY WORKMAN IS CLAIMING leave encashment as
per section 22 of the Shops and Establishments Act, 1954.
As per management no.2 nothing is due towards the workman from the
management no.2 because workman has taken his entire dues from the
management no.2 before the Deputy Labour Commissioner and workman has
signed the paper in this regard before the Deputy Labour Commissioner. As per
management no.2 it had always paid to the workman as per work performed by
him according to the system prescribed and determined as per law, and there is
nothing pending towards the workman and against management no.2 under any of
the heads as mentioned in the Labour Court Application.
As per document Ex.MW1/1 what was paid to the workman in the Office
of the Deputy Labour Commissioner was the payment towards arrears of wages to
the tune of Rs.3500/ for the period from 01.09.2011 to 28.02.2012. Thus,
payment of Rs.3500/ to the workman was towards arrears of wages for the period
from 01.09.2011 to 28.02.2012 and nothing more. Thus, stand of management as
pleaded in the WS that entire dues of workman have been paid to him before
Labour Commissioner is without any substance. The management no.2 could have
well substantiated its stand in WS, had it would have produced before the Court all
relevant statutory records, as mentioned above, which it was bound to maintain and
preserve but management no.2 has not done so. Even the management no.1 has not
produced the records which might have been provided to management no.1 by
management no.2 in terms of contract between management no.1 and no.2.
THIS IS DESPITE THE ORDER DATED 25.08.2014 passed by this Court
on the application moved by workman seeking summoning of records from the
Page 14 of 20 (ANAND SWAROOP AGGARWAL)
PO-LC- XI:KKD:DELHI:01.02.2017
Sumer Singh Vs. M/s. B.S.E.S.YPL & Anr. LCA No. 669/16
managements. If management no.2 destroyed the records, it acted in complete
violation of statutory provisions and it cannot take benefits of its own wrongs. In
view of proceedings initiated by workman against the managements before labour
authorities or this Court managements were supposed to preserve the records even
beyond the statutory period but they did not do so. It is settled law that nobody can
be permitted to take benefits on its own wrongs.
FURTHER Hon'ble Supreme Court of India in a case law reported as
"Gopal Krishnaji Kaetkar Vs. Mohd. Haji Latif & Ors." AIR 1968 SC 1413 has
observed / ruled as under:
"5.
................................................................................................
Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withhold important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v. Ghana Sambandha Pandara Sannadhi, 44 Ind App 98: MANU/PR/0053/1916 : AIR 1917 PC 6 at p. 8 Lord Shaw Observed as follows:
A practice has grown up in Indian procedure of those in possession of important documents or information lying by trusting to the abstract doctrine of the onus of proof, and falling, accordingly, to furnish to the Courts the best material for its decision With regard to third parties, this may be right enough - they have no responsibility for the conduct of the suit but with regard to the parties thee suit it is, in their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition.
This passage was cited with approval by this Court in a recent decision - Biltu Ram v. Jainandan Prasad. Civil Appeal No. 941 of 1965 D/1541968 (SC). In that case, reliance was placed on behalf of the defendants upon the following passage from the decision of the Judicial Committee in Mt.Bilas Page 15 of 20 (ANAND SWAROOP AGGARWAL) PO-LC- XI:KKD:DELHI:01.02.2017 Sumer Singh Vs. M/s. B.S.E.S.YPL & Anr. LCA No. 669/16 Kunwar v. Desraj Ranjit Singh, 42 Ind App 202 at p. 206:
AIR 1915 PC 96 at p. 98:
But it is open to a litigant to refrain from producing any documents that he considers irrelevant, if the other litigant is dissatisfied it is for him to apply for an affidavit of documents and he can obtain inspection and production of all that appears to him such affidavit to be relevant and proper. If he fail, so to do, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents.
6. But Shah, J, speaking for the Court, stated:
The observation of the Judicial Committee do not support the proposition that unless a party is called upon expressly to make an affidavit of documents and inspection and production of documents is demanded, the Court cannot raise an adverse inference against a party withholding evidence in his possession. Such a rule is inconsistent with illustration (g) of Section 114 of the Evidence Act, and also an impressive body of authority.'' Obviously, all concerned are bound to follow the law as laid down by Hon'ble Supreme Court of India in above referred case law.
In the totality of the facts and circumstances of this case, on account of nonproduction of relevant / requisite statutory records, by the managements, concerning the claims made by workman herein an adverse inference to the effect that had the managements produced the said records the same would not have supported the stand of management no.2 that nothing is due from management no.2 to the workman and that management no.2 had always paid to the workman as per the work performed by him according to the system prescribed and determined as per law. Further it is pertinent to note that workman is relying upon Ex.WW1/E. This document could have been controverted by the managements by producing relevant records but none of the managements have done so. In the totality of the facts and circumstances of this case Ex.WW1/E cannot be discarded altogether merely because original thereof has already been produced by the workman inasmuch as obviously original of this document must have been in Page 16 of 20 (ANAND SWAROOP AGGARWAL) PO-LC- XI:KKD:DELHI:01.02.2017 Sumer Singh Vs. M/s. B.S.E.S.YPL & Anr. LCA No. 669/16 the possession of the managements and managements have not produced the requisite / relevant statutory records as mentioned above. It is pertinent to note that Ex.WW1/E mentions about Day Shift from 08.00 to 20.00 and Night Shift from 20.00 to 08.00. From this it is evident that workman was being made to work for 12 hours in one shift and, thus, it can be said that workman worked for 4 hours overtime daily. But managements have not produced records to show that workman was paid overtime wages as per law. The minimum wages for unskilled worker as notified by appropriate Government are as under: Minimum Wages w.e.f. Unskilled Worker 01.02.2009 Rs.3934.00 01.08.2009 Rs.3953.00 01.02.2010 Rs.5278.00 01.02.2011 Rs.6084.00 01.04.2011 Rs.6422.00 01.10.2011 Rs.6656.00 01.04.2012 Rs.7020.00 Thus, workman is held to be entitled to recover OVERTIME WAGES as under from the management no.2:
31.09.2010 to 31.01.2011 = (5278.00 / 26) x 38 x 4 = Rs. 30856.00 01.02.2011 to 31.01.2012 = (6084.00 / 26) x 38 x 2 = Rs. 17784.00 and = (6422.00 / 26) x 38 x 6 = Rs.56316.00 and = (6656.00 / 26) x 38 x 4 = Rs.38912.00 01.02.2012 to 05.04.2012 = (6656.00 / 26) x 38 x 2 = Rs. 19456.00 and (7020.00 / 26) x 4 = Rs.1080.00 Total = Rs.164404.00 (OT) Also workman is entitled to recover for ARREARS OF MINIMUM WAGES as under: 31.09.2010 to 31.12.2010 = (Minimum Wages - Amount paid) x 3 = (Rs.5278 -Page 17 of 20 (ANAND SWAROOP AGGARWAL)
PO-LC- XI:KKD:DELHI:01.02.2017 Sumer Singh Vs. M/s. B.S.E.S.YPL & Anr. LCA No. 669/16 Rs.4550) x 3 = Rs. 2184.00 In the month of January 2011 workman was paid Rs.5687/ and, hence, there is no arrears of minimum wages.
01.02.2011 to 30.08.2011 = (Minimum Wages - Amount paid) x months = (Rs.6084 - Rs.5687) x 7 = Rs. 2779.00 Total arrears of minimum wages = Rs. 2184/ + Rs.2779/= Rs.4963/ (AoMW) Also workman is entitled to LEAVE ENCASHMENT for one year of service = 15 x 7020 / 26 = Rs. 4050/ (LE) Total entitlement of workman towards overtime wages + arrears of minimum wages + leave encashment = Rs.164404/ (OT) + Rs.4963/ (AoMW) + Rs.4050/ (LE) = Rs.173714/.
Abovesaid amount is primarily payable by management no.2 who is employer of workman.
AT THIS STAGE it would be relevant to refer Section 21 of the Contract Labour (Regulation and Abolition) Act, 1970 reads as under: "21. Responsibility for payment of wages - (1) A contractor shall be responsible for payment of wages to each worker employed by him as contract labour and such wages shall be paid before the expiry of such period as may be prescribed.
(2) Every principal employer shall nominate a representative duly authorised by him to be present at the time of disbursement of wages by the contractor and it shall be the duty of such representative to certify the amounts paid as wages in such manner as may be prescribed. (3) It shall be the duty of the contractor to ensure the disbursement of wages in the presence of the authorised representative of the principal employer.
(4) In case the contractor fails to make payment of wages within the prescribed period of makes short payment, then the principal employer shall be liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contract labour employed by the contractor and recover the amount so paid from the contractor either by deduction from any amount payable to the contractor under any contract or as a debt payable by the contractor."
Page 18 of 20 (ANAND SWAROOP AGGARWAL)PO-LC- XI:KKD:DELHI:01.02.2017 Sumer Singh Vs. M/s. B.S.E.S.YPL & Anr. LCA No. 669/16 Section 2 (1) (h) of the Contract Labour (Regulation and Abolition) Act, 1970 reads as under: "2. Definitions - (1) In this Act, unless the context otherwise requires ......................................................................................................................
(h) "wages" shall have the meaning assigned to it in clause (vi) of section 2 of the Payment of Wages Act, 1936 (4 of 1936)."
And section 2 (vi) of the Payment of Wages Act, 1936 reads as under: "2. Definitions - In this Act, unless there is any thing repayment in the subject or context: ..............................................................................................................................
(vi) "wages" means all remuneration (whether by way of salary, allowances, or otherwise) expressed in terms of money or capable of being so expressed which would, if the terms of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, and includes
(a) any remuneration payable under any award or settlement between the parties or order of a Court;
(b) any remuneration to which the person employed is entitled in respect of overtime work or holidays or any leave period;
(c) any additional remuneration payable under the terms of employment (whether called a bonus or by any other name);
(d) any sum which by reason of the termination of employment of the person employed is payable under any law, contract or instrument which provides for the payment of such sum, whether with or without deductions, but does not provide for the time within which the payment is to be made;
(e) any sum to which the person employed is entitled under any scheme framed under any law for the time being in force, but does not include (1) any bonus (whether under a scheme of profit sharing or otherwise) which does not form part of the remuneration payable under the terms of employment or which is not payable under any award or settlement between the parties or order of a Court;
(2) the value of any houseaccommodation, or of the supply of light, water, medical attendance or other amenity or of any service excluded from the computation of wages by a general or special order of (the appropriate Government);
Page 19 of 20 (ANAND SWAROOP AGGARWAL)PO-LC- XI:KKD:DELHI:01.02.2017 Sumer Singh Vs. M/s. B.S.E.S.YPL & Anr. LCA No. 669/16 (3) any contribution paid by the employer to any pension or provident fund, and the interest which may have accrued thereon;
(4) any travelling allowance or the value of any travelling concession;
(5) any sum paid to the employed person to defray special expenses entailed on him by the nature of his employment; or (6) any gratuity payable on the termination of employment in cases other than those specified in subclause (d)."
In view of above statutory provisions management no.1 being the principal employer is also liable to pay the abovesaid amount to the workman and then recover the same from the management no.2. Accordingly it is held that workman is held to be entitled to recover abovesaid amount of Rs.173714/ from management no.2. Further management no.1 is liable to pay the said amount to the workman and recover the same from management no.2 in terms of section 21 (4) r/w. section 2 (h) of the Contract Labour (Regulation and Abolition) Act, 1970 and further read with section 2 (vi) of the Payment of Wages Act, 1936. Also, workman is held to be entitled to recover a sum of Rs.25000/ as cost of litigation from management no.2. Issue no.1 is decided accordingly.
ISSUE No.2: Relief.
As above
10. Copy of this decision be sent to appropriate government in terms of section 33 C (4) of the Industrial Disputes Act, 1947.
11. File be consigned to record room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 01.02.2017 (ANAND SWAROOP AGGARWAL) POLCXI, Karkardooma Courts, Delhi* Page 20 of 20 (ANAND SWAROOP AGGARWAL) PO-LC- XI:KKD:DELHI:01.02.2017