Delhi District Court
Sh.Chhedi Lal vs Management Of Dda Through Its Secretary on 31 July, 2012
IN THE COURT OF SH. CHANDRA GUPTA
PRESIDING OFFICER LABOUR COURTX
KARKARDOOMA COURTS, DELHI.
LCA. No. :64/06
Date of Institution of the case :14.07.2006
Date on which reserved for order :30.07.2012
Date on which order is passed :31.07.2012
Unique ID no. 02402C03677422006
Sh.Chhedi Lal, S/o Sh. Shiv Ram,
C/o DDA Mazdoor Union (Regd.),
Room No. 95, Barrack No. 1/10,
Jam Nagar House Shahjahan Road,
New Delhi110011. .................Applicant/Workman
Versus
Management of DDA through its Secretary,
Vikash Sadan, INA, New Delhi.
...........Respondent/Management
O R D E R
This is an application under section 33C (2) of the I.D. Act filed by the applicant/workman Sh. Chhedi Lal, against the respondent/management of M/s D.D.A. It is stated by the applicant/workman in the application that the applicant/workman had been engaged as Security Guard/Chowkidar and worked for the period w.e.f. 06.01.1983 to 17.06.1990 and posted under Deputy Director Horticulture DivisionV, D.D.A. and he performed his duty I.D. No. 64/06 Page 1 out of 31 12 hours per day in a six days week for the duty of watch and ward of the building of the said Division of D.D.A.; that the services of the applicant/workman was transferred from Horticulture DivisionV of D.D.A. to MCD w.e.f.18.06.1990; that as per the policy of the respondent/management of D.D.A. the Security Guards/Chowkidars had to perform their duty of 12 hours per day in a week (i.e. 6 days week) and the said procedure continued upto the date of 10.05.1995 and the 8 hours duty were fixed by the respondent/management of D.D.A, the copy order of EO No. 1549 dated 10.05.1995 issued under the signature of Ms Suman Verma Director (Personal) of D.D.A. and the same is filed by the management in LCA No. 196/93 in the Court of Sh. D.K. Malhotra, Ld.Presiding Officer Labour Court No.IV, Delhi; that the work of maintenance/watch and ward of building, the employment in agriculture operation etc. or horticulture etc. are the schedule employment under the Minimum Wages Act 1948; that the D.D.A is a local self authority created by the Parliament so the establishment of D.D.A. is also covered under schedule employment of the Minimum Wages Act, 1948; that as per Rule25 of Minimum Wages (Central) Rule 1950 the applicant/workman is entitled extra wages at double the rate when a worker works in a employment for more than 9 hours on a day or for more than 40 hours in any week (6 days), he shall be entitled over time wages at double the ordinary rate I.D. No. 64/06 Page 2 out of 31 of wages including weekly day of rest as provided under Rule23 of the said Rule; that the respondent/management also circulated the instruction about payment of extra wages under the Minimum Wages Act, 1948 to employees covered under schedule employment of the said Act; that the applicant/workman performed 72 hours in a week instead of 48 hours in a week (6 days excluding rest days) during the period w.e.f. 06.01.1983 to 17.06.1990 so the applicant/workman entitled extra wages after 48 hours in a week at the double wages of the ordinary rate of wages and the workman performed extra duty 104 hours in a month and accordingly the applicant/workman is entitled to the extra wages for overtime under the Minimum Wages Act for the said period of Rs.77,532.00 as per calculation chart annexed as annexure with the claim application; that Sh. D.K. Malhotra, Ld.Presiding Officer Labour CourtIV has awarded the payment vide order dated 08.03.2004 in LCA No.196/93 to one of the similar situated workman Sh. Lakhan Singh S/o Sh. Teja Singh for period of 1981 to 31.01.1993 for performing the duty of 12 hours duty i.e. extra work for 4 hours in a day along with 12 % interest per annum also; that the attendance register w.e.f. 06.01.1983 to 17.06.1990 are within the possession of the Deputy Director, Horticulture DivisionV, D.D.A. New Delhi; that the demand notice on behalf of the workman by the D.D.A. Mazdoor Union were served I.D. No. 64/06 Page 3 out of 31 to the management of D.D.A. dated 08.04.2006 &12.08.2006 and 12.06.2006; that in view of the above, the workman is entitled extra wages at double the rate of Rupees 77,532.00 for the period w.e.f. 06.01.1983 to 17.06.1990 along with interest @ 12% per annum.
Notice of filing of the application was sent to the respondent/management who had appeared and contested the application of the workman by filing written statement. In the written statement filed by respondent/management it has taken the preliminary objection that the present dispute filed by the applicant is false, frivolous and baseless and is liable to be dismissed; that the applicant has not come to this Hon'ble Court with clean hands and has concealed material facts; that the present claim filed by the applicant is highly belated and is not tenable in the eyes of law; that without prejudice to the rights and contentions available to the management it is submitted that the present claim has been filed by the applicant after more than 16 year of accrual of alleged cause of action; that it is well established principal of law that law protect only those persons who are vigilant of their rights and not those people who sleep over their right for long period and when one fine morning they come out of their slumber, they realize that they are also entitled for certain reliefs; that the entire foundation of the present claim is based upon the award passed by Hon'ble Court of Sh. D.K. Malhotra on I.D. No. 64/06 Page 4 out of 31 17.03.2004 in favour of Sh. Lakhan Singh; that after passing of the said award in favour of Sh. Lakhan Singh by the court even applicant has thought that he should also test his luck by filing the present false, frivolous and baseless claim; that except the copy of the award passed by Hon'ble Court of Sh. D.K. Malhotra, POLC, Karkardooma Court applicant has not filed any other documents to substantiate his claim; that in fact entire claim of the applicant is founded upon assumptions and presumptions without being supported by any cogent reasons; that the applicant was never employee of the management in fact he was working on daily wages and was engaged temporarily by the management for execution of specific work and was paid as per the provisions of rules of Minimum Wages Act as applicable in Delhi from time to time; that the applicant has not worked with the management after 1990 and is working with the MCD. On merits, it is submitted that the applicant was employed on muster roll i.e. daily wages; that the applicant worked with the management till 1990 and after that he never worked with the management; that the applicant can be removed any time from the services as per Govt.India Rules as contained in CPWD Manual Vol.III; that the muster roll workers are engaged on temporary basis for execution of specific work and are paid as per the provisions and rules of Minimum Wages Act applicable in Delhi from time to time; that it is denied that the I.D. No. 64/06 Page 5 out of 31 applicant has worked for more than 8 hours with the management when he was working with the management on daily wages; that it is denied that the applicant has worked for 12 hours with the management upto 10.05.1995; that the applicant has always been paid as per rules and regulations of Govt.of India made applicable to DDA employees; that the applicant is not entitled for any amount as claimed by him in this petition; that the applicant has not worked for more than 8 hours with the management; that the applicant has never raised the alleged claim for more than 16 years before filing of the present claim petition; that the applicant is not entitled for any amount on the basis of other employees quoted under para 9 of the statement of disputes after lapse of 16 years; that the workman deliberately and with malafide intentions is asking for the record which is more than 20 years old and digging out the record is Hercules task and the record is traceable or not cannot be said with certainity; that it wrong to state that the record is in possession of Dy.Director, Horticulture DivisionV, DDA. All other allegations are denied. Hence, it is prayed that the claim be dismissed.
In Rejoinder, all the averments of statement of claim are reaffirmed and of the written statement are denied by the workman.
An application has been moved on behalf of the workman I.D. No. 64/06 Page 6 out of 31 for production of documents by the management, on record, on which vide order dated 05.12.2006, on record, the management has been directed to produce the concerned documents at the time of workman evidence.
On the pleadings of the parties vide order dated 18.12.2006, the following issues were framed:
(i) Whether the workman is entitled to the recovery of any amount from the DDA, and if so, to what amount is he entitled from the DDA?
(ii)Relief.
No other issue arose or pressed and the case was adjourned for workman evidence.
In support of his case, workman himself appeared as WW1, filed his affidavit by way of evidence Ex.WW1/A. In his affidavit, he has reiterated all the averments of his statement of claim. He has relied upon the documents Exts.WW1/1 to WW1/3, on record.
Sh. Ashwini Kumar, LDC Record Room, MACT/ Labour appeared as WW2 in workman evidence, in which he relied upon record containing 3 documents starting from page no.83 to 87 which is the copy of the attendance sheet and deposed that it is correct that in attendance sheet the name of Chander Pal is fixed of his duty 4 I.D. No. 64/06 Page 7 out of 31 P.M. to 4 A.M., Sh. Brahm Prakash, duty is shown as 9 P.M. to 9 A.M, Sh. Pratap Singh his duty is shown from 4 P.M. to 4 A.M and Sh. Lakhan Singh, S/o Sh. Teja Singh, duty is shown as 9 P.M. to 9 A.M. etc. Sh.B.K. Prasad, AR for the workman appeared himself as WW3 in workman evidence, in which he relied upon the demand notices Exts.WW3/1 and WW3/2 which were sent to the management.
After examining WW3, the applicant/workman has closed his evidence.
Thereafter, Sh. Manish Baijal, Deputy Director, Administration, DGW(CPWD), Nirman Bhawan appeared as WW4 in additional workman evidence allowed vide order dated 07.02.2008, on record, in which he has deposed that he cannot verify the signature on office memorandum No.3/2/83EC(V) dt.19.09.1986, Mark 4/A at point A. He cannot deny or admit the signature of Sh. S.S. Mehra, Deputy DirectorII at point A on the said document Mark 4/A. He cannot comment on the settlement dt.05.09.1986 Mark 4/B. The office memorandum number 42(1)/84EC(X) (Vol.I) dated 18.09.1986 is pertaining to ECX, Mark 4/C. He cannot comment on the Gazette of India dated 23.05.2002 Mark 4/E and another Gazette of India Mark 4/F. I.D. No. 64/06 Page 8 out of 31 Sh. Daya Krishna Sharma, Director (Administration) CPWD, New Delhi appeared as WW5 in additional workman evidence, filed his affidavit by way of evidence Ex.WW5/A. He has relied upon photocopies of documents Exts.WW5/1 and WW5/2, on record.
Thereafter, additional workman evidence was closed on behalf of the applicant/workman.
In support of its defence the respondent/management has examined Sh. Azad Singh, the Deputy Director/Horticulture Division V of the respondent/management as MW1 who has tendered his affidavit by way of evidence Ex.MW1/A. After examining MW1, evidence on behalf of the respondent/management was closed.
I have heard the submissions of ARs of both the parties and also have gone through the file. AR for the workman has relied upon citations: 2005 IX AD (S.C.)261 R.M.Yellati Vs. The Asstt.Executive Engineer; 2010 LAB I.C. 1089 Director Fisheries Technical Division Vs. Bhikubhai Meghajibhai Chavda; (1970) 1 SCR51 Town Municipal Council, Athani Vs. Presiding Officer, Labour Court, Hubli & Ors; (1968) 1 SCR 140 Chief Mining Engineering, East India Coal Co. Ltd. Vs. Rameshwar and Ors; (1964) 3 SCR 709 Bombay Gas Co. Ltd. Vs. Gopal Shiva & Ors.;
I.D. No. 64/06 Page 9 out of 31 H.D. Singh Vs. Reserve Bank of India (1965) Supp.2 SCR 842; 2000 LAB I.C. 3796 Om Prakash Mathur, Petitioner Vs. M/s Panjon Ltd. and Others, Respondents, in support of his submissions.
My issuewise findings are as under: Issue nos.1 & 2 It is seen from the record that the applicant has appeared in workman evidence as WW1, tendered his affidavit by way of evidence Ex.WW1/A as also relied upon documents Exts.WW1/1 to WW1/3. In his affidavit by way of evidence Ex.WW1/A, the workman has reiterated the contents of his application and deposed that he had been performing his duties as Security Guard/Chowkidar for the period w.e.f. 06.01.1983 to 17.06.1990 under the Dy.Director (Horticulture), DivisionV of DDA; that he performed his duties of 12 hours per day under the instructions of the said officer/Asstt. Engineer/Junior Engineer in a six days week for the duty of watch and ward of the said division of DDA; that his services were transferred from Horticulture DivisionV of DDA to MCD on 18.06.1990; that as per the policy of the management of DDA Security Guard/Chowkidars had to perform the duty of 12 hours including him in six days week and the said procedure continued upto the date 10th May 1995; that the work of maintenance, watch & ward I.D. No. 64/06 Page 10 out of 31 of building and the employment in agriculture operation or horticulture are the schedule employment under the Minimum Wages Act and accordingly he was entitled extra wages double the rate after 48 hours in a week and accordingly he was entitled for wages of four hours per day for the period w.e.f. 06.01.1983 to 17.06.1990 of Rs. 77,532.00 for overtime wages as per his calculation chart attached with his statement of claim which is the part and parcel of his claim application; that the management of DDA also circulated the circular for the payment of extra wages under Minimum Wages Act 1948 covered under the Minimum Wages Act; that Sh. D.K. Malhotra, Ld.Presiding Officer, Labour Court No. IV had awarded for the payment of extra wages to Sh. Laxman Singh S/o Sh. Teja Singh who is a similar situated workman and also working with the said division was granted extra wages for four hours as he performed his duty of 12 hours in a day along with 12% interest; that the attendance register of Sh. Laxman Singh who was granted double overtime wages by Sh. D.K. Malhotra, Ld.Presiding Officer of Labour Court No. IV and his attendance register was submitted by the management in LCA No. 196/93 which proves that there was a procedure to fix the duty of Chowkidars/Security Guards for 12 hours in a week; that he was entitled to extra wages of double the rates of Rs. 77,532.00 for the period w.e.f. 06.01.1983 to 17.06.1990 along with interest of 12% per I.D. No. 64/06 Page 11 out of 31 annum.
Ex.WW1/1 is the order E.O.No.1549 dated 10.05.1995 of the respondent/management in respect of fixation of 8 hours duty for the Security Staff or payment of overtime allowance for the extra duty hours, Ex.WW1/2 being a circular No. EM3 ((31)82/1257015 dated 31.10.1986 of the respondent/management in respect of the para 3 of the demands submitted by DDA Mazdoor Union in respect of payment of extra wage under Minimum Wages Act, 1948 to the employees covered under schedule employment, Ex.WW1/3 being the copy of a order of Sh. D.K. Malhotra, Presiding Officer Labour Court IV, Delhi in LCA No. 196/93 between the workman Sh. Lakhan Singh S/o Sh. Teja Singh and the management of D.D.A., Vikas Sadan, Delhi.
This witness has been cross examined in the workman evidence in which he has deposed that he had been working with the respondent/management since 06.01.1983; that initially he was appointed as muster roll worker in DDA in the year 1979 and thereafter his services were brought on work charges establishment in time scale w.e.f. 06.01.1983; that it was correct that his duty in the DDA was as Security Guard; that it was wrong to suggest that he was not the permanent employee of the DDA; that he was appointed as work charge in the year 1976; that it was wrong to suggest that he I.D. No. 64/06 Page 12 out of 31 had worked with DDA for 8 hours only; that it was correct that he was transferred to the MCD on 18.06.1990; that at the time of his transfer or before that he never raised any dispute against DDA in respect of his claim; that he personally requested the Executive Engineer and the concerned engineer for extra wages for 4 hours for the period w.e.f. 06.01.1983 to 17.06.1990; that he met Sh. Asmuddin, Assistant Engineer; that he assured him that he would get the difference of 4 hours of his wages; that he never raised any dispute against the DDA till date for the reason as he was under
impression that duty hours in the DDA are 12 hours but recently one Sh. Lakhan Pal who was also working as security guard with the DDA has been awarded by the labour court difference between the 8 hours and 12 hours of salary; that he did not write any letter to the DDA as to why he was not paid wages for 12 hours instead of 8 hours; that he knew Sh.Lakhan Singh as he had worked with him; that his duty was also of 12 hours; that he came to know about the passing of the award by the labour court in favour of Sh. Lakhan Singh from Lakhan Singh himself as he was working in DDA; that after passing of the award by the labour court, he also took the decision to approach the labour court in respect of the present claim; that it was wrong to suggest that he could be removed from DDA as per Govt.of India rules as contained in CPWD manual volume 3; that he know I.D. No. 64/06 Page 13 out of 31 what he had written in claim petition; that he had signed the claim petition after going through the same; that he did not have any record with him to show that he had worked for 12 hours with the DDA; that he had filed the claim petition on the basis of the award passed by labour court in favour of Lakhan Singh by the labour court; that attendance register showing the period of duty are with the management of DDA; that it was wrong to suggest that he had not worked for more than 8 hours with the DDA; that it was wrong to suggest that he did not work for 12 hours under the direction of the concerned officer with the DDA; that DDA never wrote any letter to him calling upon to produce any document to show that he was working for more than 8 hours; that it was wrong to suggest that he was deposing falsely.
The applicant/workman has led the evidence of WW2 Sh. Ashwani Kumar, LDC Record Room, MACT/Labour in workman evidence who has deposed that the record contain 3 documents starting from page No. 83 to 87 which is the copy of attendance sheet; that it was correct that in attendance sheet the name of Sh. Chander Pal is fixed of his duty 4 P.M. to 4. A.M; that Sh.Brahm Prakash, duty was shown as 9 PM to 9 AM; that Sh. Pratap Singh his duty was shown from 4 PM to 4 AM; that Sh. Lakhan Singh S/o Sh.
Teja Singh, duty was shown as 9 PM to 9 AM etc. I.D. No. 64/06 Page 14 out of 31 The Applicant/workman has also led the evidence of WW3 Sh.B.K.Prasad, AR for the workman in his workman evidence who has deposed that the demand notices Ex.WW3/1 and Ex.WW3/2 were sent to the management DDA. This witness has been cross examined in workman evidence in which he has deposed that he had issued the demand notices at the instance of the workman vide registered AD Post. WW4 Sh. Manish Baijal Deputy Director, Administration, DGW (CPWD), Nirman Bhawan, Delhi has also been led by the workman in the workman evidence in which he has deposed that he cannot verify the signature on office memorandum No.3/2/83EC(V) dt.19.09.1986, Mark 4/A at point A; that he cannot deny or admit the signature of Sh.S.S.Mehra, Deputy DirectorII at point A on the said document Mark 4/A; that he cannot comment on the settlement dt. 05.09.1986 Mark 4/B; that the office memorandum number 42 (1)/84 EC(X) (Vol.I) dated 18.09.1986 is pertaining to ECX, Mark 4/C; that he cannot comment on the settlement dated 15.11.1989 Mark 4/D;
that he cannot comment on the Gazette of India dated 23.05.2002 Mark 4/E and another Gazette of India Mark 4/F. The applicant/workman has also led the evidence of WW5 Sh.Daya Krishna Sharma, Director (Administration) CPWD, New Delhi who has tendered his affidavit by way of evidence Ex.WW5/A as also relied upon photocopies of documents Exts.WW5/1 & WW5/2.
I.D. No. 64/06 Page 15 out of 31 Ex.WW5/1 is the office memorandum dated 19.01.2004 of the Government of India, Directorate General of Works Central Public Works Department in respect of payment of overtime allowance for CPWD Workers, Ex.WW5/2 being the record retention schedule in respect of records common to all departments.
It is further seen from the record that the management has led the evidence of MW1 Sh. Azad Singh, Deputy Director, Horticulture DivisionV, DDA, Vikas Sadan, INA, New Delhi in management evidence who has tendered his evidence by way of affidavit Ex.MW1/A vide which he has deposed that the applicant has not come to this Court with clean hands and concealed material facts from this Hon'ble Court; that the present claim filed by the applicant is highly belated and is not tenable in the eyes of law; that the present claim has been filed by the applicant after more than 16 years of accrual of alleged cause of action; that except the copy of the award passed by the Hon'ble Court of Sh. D.K. Malhotra, POLC, Karkardooma Courts applicant has not filed any other documents to substantiate his claim; that the applicant was never employee of management in fact he was working on daily wages and was engaged temporarily by the management for execution of specific work and was paid as per the provisions of rules of Minimum Wages Act as applicable in Delhi from time to time; that the applicant has not I.D. No. 64/06 Page 16 out of 31 worked with the management after 1990 and is working with the MCD; that the applicant was employed on muster roll i.e. daily wages; that the applicant worked with the management till 1990 and after that he never worked with the management; that the applicant can be removed any time from the services as per Govt.India Rules as contained in CPWD Manual Vol.III; that muster roll workers are engaged on temporary basis for execution of specific work and are paid as per the provisions and rules of Minimum Wages Act applicable in Delhi from time to time; that the applicant has not worked for more than 8 hours with the management at the time when he was working with the management on daily wages ; that the applicant had not worked for 12 hours with the management upto 10.05.1995; that the applicant had always been paid as per rules and regulations of Govt. of India made applicable to DDA employees; that the applicant is not entitled for any amount as claimed by him in this petition; that the applicant has not worked for more than 8 hours with the management; that the applicant has never raised the alleged claim for more than 16 years before filing of the present claim petition; that the applicant was not entitled for any amount on the basis of other employees quoted under para 9 of the statement of disputes after lapse of 16 years.
This witness has been cross examined on behalf of the I.D. No. 64/06 Page 17 out of 31 workman in management evidence in which he has deposed that he had personal knowledge about this case; that it was correct that the workman was appointed on pay scale on work charge basis vide Ex.MW1/W1; that it was correct that the workman was relieved to MCD on/w.e.f.18.06.1990 vide Ex.MW1/W2; that it was correct that the service condition of workman has been dealt as per CPWD manual volume III; that he cannot admit or deny due to want of knowledge if a suggestion was put to him that the CPWD had fixed the duty hours of the chawkidars of 8 hours per day or 48 hours in any week; that it was correct that Ex.WW1/2 was issued by his department whereby the duty hours of the chawkidars were covered under the schedule employment under Minimum Wages Act, 1948; that it was correct that the document Ex.WW1/1 was issued by the office of Director (Personal) of DDA; that he had seen the workman working in the Nursery during the period 06.01.1983 to 17.06.1990; that it was correct that the attendance of the workmen are marked by the officers of the DDA; that it was correct that the officers of DDA fix the duty hours as well as the duty of the chawkidars; that it was correct that the time of duty were also marked in the attendance register in regard to chawkidars and security guards; that he did not know if the pay vouchers of the workman were available or not; that earlier they were having one division which was later on bifurcated I.D. No. 64/06 Page 18 out of 31 into three divisions; that he was not aware if Lakhan Singh had got payment of his period as he was not posted during his tenure; that he knew about the case of Lakhan Singh; that he was not aware if Lakhan Singh was also working with the present workmen and his duty hours were fixed 12 hours as chowkidar like present workmen; that he was not aware if Lakhan Singh has got the payment under the Award or not; that it was wrong to suggest that they had deliberately withheld the attendance register as well as other service record such as pay voucher etc. of this workman; that it was correct that the DDA was following the work charge manual of CPWD volume3; that it was wrong to suggest that the DDA was also taking 12 hours duty from Chowkidars/Security Guards as per CPWD Manual; that he must had been seen the order passed by Smt. Suman Verma, Director (Personal) DDA Ex.WW1/1; that he did not know if he had seen the order dt. 31.10.1986 passed by ADII EM of DDA; that he did not know anything about the circular marked A; that it was wrong to suggest that he was deposing falsely.
It is thus seen from the record that it is the case of the applicant/workman that he by virtue of having been employed as security guard/chowkidar with the respondent/management and worked for the period w.e.f. 06.01.1983 to 17.06.1990 posted under Deputy Director Horticulture DivisionV, D.D.A. and having I.D. No. 64/06 Page 19 out of 31 performed his duties for 12 hours per day in a six days week for the duty of watch and ward of the building of the said Division of D.D.A. at minimum wages is entitled to overtime allowance for the period of duty performed by him at his above mentioned post of security guard/chowkidar with the respondent/management over and above 8 hours of duty fixed for/in respect of his employment of 8 hours of duty per working day w.e.f. 06.01.1983 to 17.06.1990 the period of his employment with the respondent/management at his above mentioned post/duty with it whereas it is the case of the DDA management that the workman has not performed duties @ 12 hours per day in a week and has instead performed duties only for 8 hours per working day in a week as fixed by it in this regard and was thus not entitled to any overtime allowance as claimed by him as is evident from the written statement filed on behalf of the respondent/management to the instant application moved on behalf of the applicant/workman as also the suggestions put to the workman in his cross examination on behalf of the respondent/DDA as WW1 in workman evidence though it is admitted by the DDA that the applicant/workman had been working on daily wages with the respondent/management and was engaged by the respondent/management temporarily for execution of specific work and was paid as per the provisions of Rules of Minimum Wages Act I.D. No. 64/06 Page 20 out of 31 as applicable in Delhi from time to time as is evident from the affidavit by way of evidence of the MW1 Sh. Azad Singh, the Deputy Director/Horticulture DivisionV of the respondent/management as also vide the testimony of this management witness in his cross examination on behalf of the workman in management evidence as MW1 when he states that it was correct that Ex.WW1/2 was issued by his department whereby the duty hours of the chowkidars were covered under the schedule employment under Minimum Wages Act 1948; that it was correct that the document Ex.WW1/1 was issued by the office of Director (Personnel) of the respondent/management; that it was correct that the attendance of the workmen were marked by the officers of the DDA; that it was correct that the officers of DDA fixed the duty hours as well as the duty of the chowkidars; that it was correct that the time of duty was also marked in the attendance register in regard to chowkidars and security guards and also it was correct that the workman was appointed on pay scale on work charge basis vide Ex.MW1/W1; that it was correct that the workman was relieved to MCD w.e.f. 18.06.1990 vide Ex.MW1/W2.
It is thus seen from the record that it has been admitted by the management that the services of the workmen in respect of their emoluments, fixation of duty hours and entitlement were covered under the schedule employment under Minimum Wages Act 1948 (as I.D. No. 64/06 Page 21 out of 31 amended upto date). Vide section 12 of the Minimum Wages Act 1948 (as amended upto date) provision has been made for payment of minimum rates of wages. Section 13 (1) of the ibid Act deals with fixing hours for a normal working day etc. and weekly off day whereas Section 14 (1) deals with overtime.
Thus it is seen that in regard to any scheduled employment in respect of which minimum rates of wages have been fixed under the provisions of Minimum Wages Act, 1948 (as amended upto date), the number of hours for a normal working day as also provision of a rest day as also payment of overtime rate for work on a day of rest or in excess of the number of hours constituting a normal working day has been provided which has been further specified vide the provisions of Rules 23, 24 and 25 of the Minimum Wages (Central) Rules 1950.
It is seen from the record that it is the claim of the applicant/workman that he is covered under the provisions of Minimum Wages Act and the Minimum Wages (Central) Rules 1950 as framed there under for the purpose of payment of his wages as also fixation of his working hours along with payment of overtime dues to him as provided in the same to which there is no effective rebuttal on the part of the respondent/management which on the contrary has admitted that it is correct that the applicant/workman was paid as per I.D. No. 64/06 Page 22 out of 31 provisions of Rules of Minimum Wages Act as applicable in Delhi from time to time in its written statement as also vide the affidavit by way of evidence of MW1 Sh. Azad Singh Deputy Director (Horticulture) DivisionV of the respondent/management to the effect that the applicant/workman was paid as per the provisions of Rules of Minimum Wages Act, 1948 as applicable in Delhi from time to time.
It is further seen from the record that vide Ex.WW1/1, on record which is copy of EO No. 1549 dated 10.05.1995 of the respondent/management on the subject of fixation of 8 hours duties for security staff or payment of overtime allowance for the extra duty hours it has been mentioned that the duty hours for security staff is 8 hours with the respondent/management and in case of urgency, where security staff is required to perform duties for more than 8 hours, overtime allowance will be paid after obtaining the prior approval for performance of extra duty from the competent authority which document/workman exhibit has been admitted by the MW1 as having been issued by the office of Director (Personnel) of the respondent/management as also it is evident from Ex.WW1/2 which is circular No. EM3 (31)82/1257015 dated 31.10.1986 of the respondent/management in respect of the payment of extra wage under Minimum Wages Act, 1948 to the employees covered under I.D. No. 64/06 Page 23 out of 31 schedule employment, admitted by the MW1 Sh. Azad Singh as having been issued by the respondent/management whereby the duty hours of the chowkidars were covered under the schedule employment under the provisions of Minimum Wages Act 1948 (as amended upto date) and consequently the Minimum Wages (Central) Rules 1950 framed there under in terms of payment of minimum rates of wages to them, fixation of hours for a normal working day and weekly day off as also payment of overtime allowance to them as provided therein.
In view of above discussion I find that the applicant/workman has the pre existing right to claim the relief of overtime for the work done by him over and above the hours of duties fixed in order to be eligible for the same under the provisions of the Minimum Wages Act 1948 as also the Minimum Wages (Central) Rules 1950 as framed there under as brought by him vide his instant application in order for the same to be maintainable in law in this Court.
Now coming to the submission/contention of the applicant/workman that he had worked for 12 hours in a working day with the respondent/management during his admitted period of employment with it as chowkidar w.e.f. 06.01.1983 to 17.06.1990 in order to be eligible to his claim for overtime allowance for the I.D. No. 64/06 Page 24 out of 31 number of hours of work done by him over and above the hours of duties fixed in respect of his said employment with the respondent/management for the said period, it is seen from the record that the said contention/submission of the applicant/workman of having worked with the respondent/management for a period of 12 hours in a working day during his period of employment with it, as abovesaid, has been refuted by the respondent/management in its written statement filed to the instant statement of claim of the applicant/workman as also by way of cross examination of the workman in workman evidence as also in its management evidence.
However, it is seen from the record that an application has been moved on behalf of the applicant/workman under the provisions of Section 11 (3) (b) of the I.D. Act, 1947 (as amended upto date) for directions to the respondent/management for production of the record viz. register of wages, wage slips as required under form X and XI as per Rules 26 (1) & (2) of Minimum wages (Central) Rules 1950 for the period 06.01.1983 to 17.06.1990 including the attendance register in respect of the applicant/workman pertaining to the employment of the applicant/workman with the respondent/management for the period alleged to which no reply in rebuttal has been filed on the part of the respondent/management and vide order dated 05.12.2006, on record, a direction has been issued to I.D. No. 64/06 Page 25 out of 31 the respondent/management to produce the said documents/record at the time of recording of workman evidence, however, no such record in rebuttal of the claim of the workman in respect of his having allegedly worked for a period of 12 hours per working day in a week i.e. six days in a week during the period of his employment as chowkidar/security guard with the respondent/management w.e.f. 06.01.1983 to 17.06.1990 which is a "scheduled employment"
covered under the provisions of the Minimum Wages Act, 1948 (as amended upto date) in respect of the payment of minimum wages, fixation of duty hours/weekly rest day off and payment of overtime rate to the applicant/workman has been produced at the time of recording of workman evidence or even thereafter in the management evidence led on behalf of the management in the instant application, on record, despite direction of this Court to the respondent/management in this regard vide the relevant order passed in this regard, as above said, on record.
In view of the same an adverse inference is drawn against the respondent/management in respect of the contention/submission on behalf of the applicant/workman of his having worked for 12 hours per working day in a week i.e. six days in a week, excluding one day per week towards rest day during the period of his employment with the respondent/management, as abovesaid, as I.D. No. 64/06 Page 26 out of 31 provided vide provisions of citations 2005 IX AD SC 261 R.M. Yellati Vs. The Assistant Executive Engineer & 2010 LAB. I.C. 1089 Director, Fisheries Terminal Division Vs. Bhikubhai Meghajibhai Chavda.
It is laid down vide the above citations " However, applying general principles and on reading the aforesaid judgments, we find that this Court, has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping up in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of dailywaged earners, there will be no letter of appointment or termination. There will also be no receipt of proof of payment. Thus in most cases, the workman (the claimant) can only call upon the employer to produce before the Court the I.D. No. 64/06 Page 27 out of 31 nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case".
"In this regard, it would be pertinent to mention the observation of threeJudge Bench of this Court in the case of Municipal Corporation, Faridabad V. Siri Niwas (2004) 8 SCC 195): (2004 AIR SCW 5184), where it is observed:
" A Court of Law even in a case where provisions of the Indian Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against his contentions. The matter, however, would be different where despite direction by a court the evidence is withheld."
I.D. No. 64/06 Page 28 out of 31 It is further seen from the record that no objection has been taken by the respondent/management in respect to the jurisdiction of this Court to try and adjudicate upon the instant dispute between the parties in the instant application moved on behalf of the applicant/workman under the provisions of Section 33C (2) of the I.D. Act, 1947 (as amended upto date) against the respondent/management. All that there has been pleaded in opposition to the instant application is that the same is belated and the amount as claimed by the applicant/workman in the same against the respondent/management is not due to him against it. Vide provisions of citations (1970) 1 SCR 51, Town Municipal Council, Athani Vs. Presiding Officer, Labour Court, Hubli & Ors, (1968) 1 SCR 140, Chief Mining Engineer, East India Coal Co. Ltd. Vs. Rameshwar and Ors., (1964) 3 SCR 709, Bombay Gas Co. Ltd. Vs. Gopal Bhiva & Ors. it has been held that no period of limitation has been prescribed in law in respect of application u/s 33C (2) of the I.D. Act, 1947 ( as amended upto date).
In view of the same it cannot be held that the instant application moved on behalf of the applicant/workman against the respondent/management in respect of relief as claimed by him in the same against the respondent/management is not maintainable in law on account of delay.
I.D. No. 64/06 Page 29 out of 31 In view of my above discussion looking into the fact that the applicant/workman has worked for 12 hours per working day in a week (i.e.6 days in a week) during the period of his employment with the respondent/management, as abovesaid and his scheduled employment is covered under the provisions of Minimum Wages Act, 1948 (as amended upto date) thereby entitling him to overtime rate as provided therein in respect of the work done by him over and above the number of hours of work fixed for a normal working day vide the provisions of Section 12,13 and 14 of the Minimum Wages Act, 1948 (as amended upto date) along with Rules 23, 24 and 25 of the Minimum Wages (Central) Rules 1950 as framed there under which has admittedly not been paid on the part of the respondent/management to the applicant/workman, overtime rate for the period w.e.f. 06.01.1983 to 17.06.1990 @ 4 hours per day amounting to Rs. 77,532.00 as claimed by the applicant/workman against the respondent/management on the said account vide the instant application to which calculation of overtime dues for the concerned period, as abovesaid, on the part of the applicant/workman, I find from the record there is no effective rebuttal on the part of the respondent/management, is ordered in favour of the applicant/workman and against the respondent/management. Accordingly, the issues are decided in favour of the I.D. No. 64/06 Page 30 out of 31 applicant/workman and against the respondent/management.
In view of my above findings, the instant application is disposed of with direction to the respondent/management to make payment of an amount of Rs. 77,532.00 to the applicant/workman towards overtime dues for the period w.e.f. 06.01.1983 to 17.06.1990 as claimed by him vide the instant application within a period of four months of the date of the order, failing which the same would also attract interest @ 8% per annum w.e.f. the same. The file be consigned to the record room.
Announced in the open court on 31.07.2012 (CHANDRA GUPTA) Presiding Officer Labour CourtX Karkardooma Courts, Delhi.
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