Delhi District Court
Sh. Rajesh Varma vs M/S. Adecco Flexione Workforce ... on 29 July, 2016
IN THE COURT OF SHRI UMED SINGH GREWAL
POLCXVII ROOM NO. 22 :KKD COURTS: DELHI
LCA 368/16 (Old No. LCA 38/10).
Unique ID No.02402C0147992010.
IN THE MATTER OF:
Sh. Rajesh Varma,
S/o Sh. B.L. Varma
C/o Shops & Commercial Workers Union Regd. 780,
Ballimaran, Delhi110006.
R/o 69A, Amritpuri East of Kailash, New Delhi110065.
..............Workman
Vs.
M/s. Adecco Flexione Workforce Solution Ltd.
39, Ist Floor, Pusa Road, Karol Bagh,
New Delhi110005.
............. Management
DATE OF INSTITUTION : 26.05.2010.
DATE ON WHICH AWARD RESERVED : 29.07.2016.
DATE ON WHICH AWARD PASSED : 29.07.2016.
O R D E R:
1.This order shall dispose off petition under Section 33 C(2) of the I.D. Act, 1947 (hereinafter referred as "the Act") for earned wages, wages for earned leaves and bonus.
2. Claimant's case is that he had started working with the management as Counter Salesman since 21.07.06 at the last drawn LCA 368/16. 1/7 salary of Rs.7,774/ per month. His duty was to show items to the customers and to educate them about their use. His service was terminated illegally w.e.f. 11.02.10. The management withheld his following dues to which he is entitled: a. Earned wages from 21.11.09 to 11.02.10 @ Rs.7774/ p.m. Rs.21,100.85.
b. Wages for earned leave due 45 days Rs.11,661.00.
c. Bonus for the year 2009 @ 8.33% Rs. 7,777.00.
Total Rs.40,535.85.
3. Written statement is to the effect that claimant was engaged by the management as Retail Sales Executive w.e.f. 21.07.06 on contract basis for 12 months at a consolidated salary of Rs.6,648/ per month. Simultaneously, he was provided the appointment letter and terms and conditions of the employment, which were duly received and accepted by him. His service automatically came to an end on 26.12.2009 due to expiry of contract. His salary to the tune of Rs.7,228/ is lying with it unpaid, for which the management had already prepared a cheque, but the claimant did not appear for collection.
4. Following issues were framed on 08.10.2010: a. Whether the workman proves that he is entitled for claims made?
LCA 368/16. 2/7b. Whether the management proves that he is not entitled any relief except a sum of Rs.7,228/?
c. What relief.
5. In order to substantiate the case, the claimant tendered his affidavit in evidence as Ex. WW1/A mentioning all the facts stated in the statement of claim. He relied upon following documents : i. Ex. WW1/1 termination letter.
ii. Ex. WW1/2 demand notice dated 25.03.10.
6. The management examined its Regional Manager Compliance as MW1, who deposed that claimant was engaged by the management as Retain Sales Executive w.e.f. 21.07.2006 on fixed term contract on a salary of Rs.6648/ per month. The term of appointment was 12 months. The claimant had accepted the terms and conditions of his employment. His contract was extended from time to time. He further deposed that the management is engaged in the business of supply of workforce to different establishments as per their requirements. In the same way, the claimant was posted by the management with M/s. World Space Inc. which has already filed for bankruptcy protection in US Court after failing to obtain new financing. That company stopped all marketing activities in India and hence service of the claimant was no more required by the company. Due to closure of M/s.
LCA 368/16. 3/7World Space Inc., the contract of employment of the claimant could not be extended and hence it came to an end due to efflux of time on 26.12.2009.
He further deposed that full and final dues of Rs.7,228/ which were lying unpaid, are being produced before this Court vide cheque No. 391130 dated 10.10.11 for payment to the claimant.
7. Ld. ARW did not appear to argue the case.
Issue Nos. a & b.
8. Both these issues are interconnected and hence are being taken up together.
Claimant's case is that he had joined the management on 21.07.2006 at the last drawn salary of Rs.7774/ per month and his service was terminated on 11.02.10. He was not paid earned wages from 21.11.09 to 11.02.10 total of which comes out to Rs.21,100/. He further deposed that he was entitled to a sum of Rs.11,661/ for encashment of 45 earned leaves. He is also entitled to a sum of Rs.7,774/ as bonus for the year 2009 at the rate of 8.33 per cent.
On the other hand, Ld. ARM argued that service of the claimant was terminated on 26.12.2009. The claimant has not filed any document to prove that he had worked with management from 26.12.2009 to 11.02.10. One month's salary amounting to Rs.7228/ was still due towards management which has already been paid to the claimant as reflected by order dated 14.10.11. He LCA 368/16. 4/7 further argued that as per terms and conditions of service and employment letter, the claimant was not entitled to encashment of earned leave and bonus as his employment was on contractual basis initially on 12 months and it was extended from time to time and ultimately it came to an end on 26.12.2009.
9. In order to succeed under Section 33C(2) of the Act, the claimant is required to show that either there was adjudication of right in his favour or there was settlement or the claim has been admitted by the management or that his claim is covered as per service conditions. Earned wages of the claimant for one month from 21.11.2009 to 26.12.2009 have been admitted by the management and that amount has already been paid to him as reflected by order dated 14.10.11. The management terminated his service on 26.12.2009, but the claimant's case is that he had worked with the management till 11.02.10 as his service was terminated on 11.02.10. It is mentioned in termination letter that service of the claimant shall come to an end after closure of office on 26.12.2009. It means that termination letter is dated prior to 26.12.2009. There is nothing in the termination letter which may suggest that it is dated 11.02.10. The claimant did not exhibit or mark any document to prove that he had received the termination letter on 11.02.10. The claimant had raised industrial dispute bearing No. LC 1310/16 (Old No. DID 52/10), Sh. Rajesh Varma Vs. M/s.
LCA 368/16. 5/7Adecco Flexione Workforce Solution Ltd. In that case, it has been held that claimant had not worked with the management upto 11.02.10. It has further been held that his service was terminated by the management on 26.12.2009. Moreover, it has been admitted by the claimant also in cross examination that he had not placed on record any document to show that he had worked with the management after 26.12.2009. Due to these reasons, he is not entitled to earned wages after 26.12.2009.
10. As per Jeet Lal Sharma Vs. Presiding Officer, Labour CourtIV and another, 84 (2000) DLT 706, under Section 33C(2) of the Act, the workman shall be entitled to receive money if there is preexisting right and this entitlement or preexisting is found in twin expressions - 1. The entitlement has been earlier adjudicated or 2. The entitlement is recognized by the employer. Hon'ble High Court of Delhi further held that the claimant is also entitled to relief under that Section if service conditions provide so. Following observation of the Hon'ble High Court is relevant : "...If this entitlement depends upon an adjudication of the rights for the first time, then the adjudication cannot come within the purview of this section... If on the other hand, the right is potently there, it has to be found out by reading of any document, settlement or award, that could be done within the purview of this Section.
LCA 368/16. 6/711. In the case in hand, the employment letter dated 21.07.06 and Standard Terms of employment have been filed by the claimant. In both those documents, there is not a single word to the effect that the claimant shall be entitled to earned wages or bonus. In fact, his employment was on contractual basis for 12 months which could be extended from time to time and ultimately came to an end on 26.12.2009. His right for encashment of earned leaves and bonus has not been supported by appointment letter and terms and conditions of his employment and he so, is not entitled to a single penny under those heads.
12. In view of above discussion, both these issues are decided in favour of the management and against the claimant.
Issue No. c.
13. Consequent to decision on issue Nos. a & b, it is held that the claimant is not entitled to a single penny from the management. His petition is dismissed. Order is passed accordingly. Parties to bear their own costs.
File be consigned to Record Room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 29.07.2016. POLCXVII/KKD, DELHI.
LCA 368/16. 7/7