Delhi District Court
Aadhar Card And Phone Number Of Workman vs Z-43 on 25 May, 2023
IN THE COURT OF MS. MANSIHA TRIPATHY
PRESIDING OFFICER : LABOUR COURT-III
ROUSE AVENUE COURTS COMPLEX : NEW DELHI
CNR No. : DLCT-13-000651-2010
LCA No. : 333/2016
Date of Institution of the case : 08.09.2010
Date on which award is passed : 25.05.2023
Sh. Ram Vinod Singh,
S/o Sh. Jato Singh,
R/o Near T-34, Okhla Phase-II,
New Delhi - 110020.
The requisite details of the workman in compliance of judgment
of Hon'ble High Court of Delhi titled as Director General of
Works (CPWD) Vs. Laljeet Yadav & Ors. W.P.(C) No.2540-
2021, DOD 16.07.2021 are as follows:
Permanent Address of the workman:
Details not furnished.
Any other address of workman available on record:
359, Jhuggi, Sanjay Colony, Okhla Phase-2,
New Delhi-110020.
Name and Mobile Number of A.R. for workman:
Sh. Ranjeet Singh (Secretary),
Mobile Numer : Details not furnished.
Details of one of immediate family member of the workman:
Details not furnished.
Aadhar Card and Phone Number of workman:
Details not furnished. .....Applicant/Workman.
Versus
M/s Allied Holdings Ltd.
(Sh. Gopal Swaroop Gupta,
Owner and Sh. Dilip, Contractor)
(LCA No.333/2016) (Sh. Ram Vinod Singh Vs. M/s Allied Holdings Ltd.) Page No.1 of pages 13
Z-43, Okhla Industrial Area, Phase-2,
New Delhi - 110020.
(Sh. Satender Verma, Authorized
Representative of the Management,
Mobile No.9811107837.) ...Management.
-:O R D E R:-
1.By this order I shall dispose off the present petition under Section 33-C (2) of the Industrial Disputes Act, 1947 (as amended up to date) filed by the applicant/claimant against the management. Brief facts of the case leading to filing of the present application as alleged by the claimant are that he was working with the management since 01.07.2004 on the post of Helper on the last drawn wages of Rs.2,865/-. The management terminated his services verbally on 07.11.2005 without assigning any reason, issuance of notice, charge sheet and without conducting any domestic enquiry. The claimant alleged that at the time of termination of his services, minimum wages payable to him should have been Rs.3,166/- per month and that the management failed to pay his dues i.e., the arrears of earned wages, bonus, leave encashment, double overtime and arrears of minimum wages etc. He prayed for directions to the management to pay a sum of Rs.14,950/- towards arrears of earned wages, bonus, leave encashment, double overtime and arrears of minimum wages alongwith interest @ 18% per annum from the date of accrual till its realization. He also prayed for Rs.2,000/- towards compensation for delayed payment, Rs.2,000/- towards litigation cost and Rs.5,000/- towards fees of Authorized Representative. The details of amount claimed as per calculation (LCA No.333/2016) (Sh. Ram Vinod Singh Vs. M/s Allied Holdings Ltd.) Page No.2 of pages 13 chart of the claimant is reproduced below-:
Details Monthly wages Amount
1.Outstanding earned
wages / duration
From 01.10.2005 to
07.11.2005. Rs.3,166/- Rs.3,904/-
2. Minimum bonus
according to Bonus Act
From 01.07.2004 to
07.11.2005. Rs.3,818/-
3. Yearly 15 days leave with
pay
From 01.07.2004 to
07.11.2005 for 16 months
i.e. 20 days amount. Rs.2,110/-
4. Double overtime
128 X 2 = 256 hours i.e. 32
days. Rs.3,268/-
5. Previous minimum wages
arrears
From 01.08.2004 to
31.01.2005 i.e. 6 months,
Rs.2,895/- less Rs.2,865/- =
Rs.29/-; Rs.29 X 6 =
Rs.174/-; Rs.174/-
From 01.02.2005 to
31.07.2005 i.e. 6 months,
Rs.3,044/- less Rs.2,865/- =
Rs.179/-, Rs,179 X 6 =
Rs.1,074/-; Rs.1,074/-
From 01.08.2005 to
30.09.2005 i.e. 2 months,
Rs.3,166/- les Rs.2,865/- =
Rs.301/-, Rs.301/- X 2 =
Rs.602/-. Rs.602/-
Rs.14,950/-
(LCA No.333/2016) (Sh. Ram Vinod Singh Vs. M/s Allied Holdings Ltd.) Page No.3 of pages 13
2. Notice of the application was issued to the management upon which Sh. Brij Lal, Ld. AR for the management appeared and filed reply to the instant application stating therein no employer employee relationship exists between the claimant and management and as such the present application under Section 33 (C) (2) of the Industrial Disputes Act, 1947 seeking computation of amount towards earned wages, bonus, leave wages, overtime and arrears of minimum wages is incompetent.
2.1 It was further stated that the claimant was in employment of M/s Dileep Contractor from 01.01.2005 to 30.11.2005, as per the terms of appointment letter dated 01.01.2005, and he was paid his full and final amount on 03.12.2005. It was claimed that the claimant had raised industrial dispute before the Labour Court vide I.D. No.32/2006 alleging therein illegal termination of his services and in that case he had admitted his signature on the appointment letter dated 01.01.2005 issued by M/s Dileep Contractor, salary register of M/s Dileep Contractor as well as full and final receipt dated 03.12.2005 signed by him in token of his having received the amount towards earned wages, leave wages and bonus from M/s Dileep Contractor.
2.2 It was stated that as per the information available with the management, the claimant was employed with M/s Dileep Contractor since 01.01.2005 as helper on the last drawn wages of Rs.3,166/- per month and in terms of the agreement of the (LCA No.333/2016) (Sh. Ram Vinod Singh Vs. M/s Allied Holdings Ltd.) Page No.4 of pages 13 management with M/s Dileep Contractor, the claimant was deployed at the premises of the management, however, no employer-employee relationship existed between the claimant and the management. It was reiterated that the claimant was neither in employment with the management nor his services were terminated on 07.11.2005 nor a sum of Rs.14,950/- is due or payable to the him by the management towards earned wages, bonus, leave wages, over time and arrears of minimum wages.
2.3 It was also stated that the instant application as filed by the claimant seeking computation of bonus is not maintainable as per Section 7 Schedule-II of the I.D. Act as the matters regarding the adjudication of bonus does not fall within the jurisdiction of labour courts. It was also stated that the application is not maintainable in view of the fact that the Labour Court has no jurisdiction to determine the amount sought to be computed because the amount claimed is not based on any existing right, award, settlement as stipulated under Section 33 (C) (2) of Industrial Disputes Act, 1947 and no enquiry can be held to determine the new right of the claimant in absence of prior determination of the disputed questions.
3. In rejoinder to the Written Statement of the management, the claimant denied the averments of the management in its written statement and reaffirmed that of the application filed under Section 33 C (2) of Industrial Disputes Act, 1947. In addition it was stated that the beneficiary of the work performed by the claimant was management and as a (LCA No.333/2016) (Sh. Ram Vinod Singh Vs. M/s Allied Holdings Ltd.) Page No.5 of pages 13 principal employer it was responsible to pay dues of the claimant. It was also added that the agreement between the management and M/s Dileep Contractor was camouflage and sham and the work of management being perennial in nature couldn't have been outsourced to contractor.
4. From the pleadings of the parties, vide order dated 04.08.2011 the following issues were framed:-
1. Whether the application filed by the workman u/s 33-C(2) of the ID Act, 1947 is maintainable? OPW.
2. Relief.
5. Thereafter, claimant/workman led his evidence and stepped into the witness box as WW-1. He tendered his evidence by way of affidavit Ex.WW1/A, wherein he reiterated on oath the averments made in his application under Section 33 C (2) of Industrial Disputes Act, 1947.
5.1 He relied on the following documents:-
I. Legal Demand Notice dated 14.08.2010 -
Ex.WW1/1;
II. Postal receipt - Ex.WW1/2; and III. Acknowledgment Card - Ex.WW1/3.
5.2 He was partly cross examined by Ld. AR of the management on 04.10.2019. Thereafter, on 29.11.2019, 17.01.2020, 05.03.2020, 28.08.2020 and 04.09.2020 his cross examination could not be recorded for the one reason or other (LCA No.333/2016) (Sh. Ram Vinod Singh Vs. M/s Allied Holdings Ltd.) Page No.6 of pages 13 and on 25.02.2021, since he was not present, court notice was directed to be issued to him for 24.03.2021. On 24.03.2021, 04.08.2021, 05.10.2021, 27.11.2021, 12.01.2022, again court notices were directed to be issued to the claimant. Vide order dated 20.05.2022, passed by Ld. Predecessor of this court, claimant/workman's evidence was closed due to his none appearance despite repeated service of court notices.
Management chose not to lead any evidence in its defence. Therefore, case was fixed for final arguments.
6. Both the parties failed to address oral arguments or to file written submissions despite opportunity. Hence, I proceed to decide the instant application under Section 33-C (2) of the Industrial Disputes Act, 1947 on the basis of material available on record.
7. I have carefully gone through the record. My issue wise findings are as under:-
8. ISSUE No.1:-
Whether the application filed by the workman u/s 33-C(2) of the ID Act, 1947 is maintainable? OPW.
8.1 The maintainability of the present application u/s. 33 C(2) of the Act has been challenged by the management.
8.2 It has been submitted on behalf of the management that the claimant has never been its employee and no employer-
(LCA No.333/2016) (Sh. Ram Vinod Singh Vs. M/s Allied Holdings Ltd.) Page No.7 of pages 13 employee relationship ever existed between the claimant and the management and as such until and unless this disputed question of relationship is adjudicated in a separate claim under s. 2A or s. 10 (4) (A) of the act and a finding is returned in such proceedings, no claim of money/benefit is maintainable by the claimant against management under proceedings under section 33C(2) of the Industrial Dispute Act, 1947.
8.3 At this stage, it will be useful to have a look at the relevant provision of law, which is reproduced herein below for easy reference:-
"Section 33C : Recovery of Money Due from an Employer -
(1) x x x (2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government (within a period not exceeding three months).
(3) x x x (4) x x x (5) x x x"
8.4 In Chief Mining Engineer, East India Coal Co. Ltd. v. Rameshwar & ors. (1968) 1 SCR 140 Hon'ble Supreme Court highlighted the ambit and scope of section 33C(2) of the Industrial Disputes Act and made following pertinent (LCA No.333/2016) (Sh. Ram Vinod Singh Vs. M/s Allied Holdings Ltd.) Page No.8 of pages 13 observations:-
"It is clear that the right to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between an industrial workman and his employer..."
8.5 The decision was thereafter followed by Hon'ble Court in Central Inland Water Transport Corpn. Ltd. v. Workmen (1974) 4 SCC 696. The relevant extract from the judgment is reproduced herein below :-
"12. It is now well-settled that a proceeding under section 33C (2) is a proceeding, generally, in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to a workman from his employer, or if the workman is entitled to any benefit which is capable of being computed in terms of money, the Labour Court proceeds to compute the benefit in terms of money. This calculation or computation follows upon an existing right to the money or benefit, in view of its being previously adjudged, or, otherwise, duly provided for. In Chief Mining Engineer, East India Coal Co. Ltd. v. Rameshwar & ors., it was reiterated that proceedings under 33C (2) are analogous to execution proceedings and the Labour Court called upon to compute in terms of money the benefit claimed by workmen is in such cases in the Position of an executing court. It was also reiterated that the right to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between an industrial workman (LCA No.333/2016) (Sh. Ram Vinod Singh Vs. M/s Allied Holdings Ltd.) Page No.9 of pages 13 and his employer."
"13. In a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of (i) the plaintiff's right to relief; (ii) the corresponding liability of the defendant, including, whether the defendant is, at all, liable or not; and (iii) the extent of the defendant's liability, if any. The working out of such liability with a view to give relief is generally regarded as the function of an execution proceeding. Determination No.
(iii) referred to above, that is to say, the extent of the defendant's liability may sometimes be left over for determination in execution proceedings. But that is not the case with the determinations under heads (i) and (ii). They are normally regarded as the functions of a suit and not an execution proceeding. Since a proceeding under section 33C (2) is in the nature of an execution proceeding it should follow that an investigation of the nature of determinations
(i) and (ii) above is, normally, outside its scope. It is true that in a proceeding under section 33C (2), as in an execution proceeding, it may be necessary to determine the identity of the person by whom or against whom the claim is made if there is a challenge on that score. But that is merely 'Incidental'. To call determinations (i) and
(ii) 'Incidental' to an execution proceeding would be a perversion, because execution proceedings in which the extent of liability is worked out are just consequential upon the determinations (i) and (ii) and represent the last stage in a process leading to final relief.
Therefore, when a claim is made before the Labour Court under section 33C (2) that court must clearly understand the limitations under which it is to function. It cannot (LCA No.333/2016) (Sh. Ram Vinod Singh Vs. M/s Allied Holdings Ltd.) Page No.10 of pages 13 arrogate to itself the functions-say of an Industrial Tribunal which alone is entitled to make adjudications in the nature of determinations (i) and (ii) referred to above, or proceed to compute the benefit by dubbing the former as 'Incidental' to its main business of computation. In such cases, determinations (i) and (ii) are not 'Incidental' to the computation. The computation itself is consequential upon and subsidiary to determinations (i) and (ii) as the last stage in the process which commenced with a reference to the Industrial Tribunal. It was, therefore, held in State Bank of Bikaner and Jaipur v. R. L. Khandelwal that a workman cannot put forward a claim in an application under section 33C (2) in respect of a matter which is not based on an existing right and which can be appropriately the subject matter of an industrial dispute which requires a reference under Section 10 of the Act."
8.6 The law pronounced in the above said judgment has since been consistently followed by the Hon'ble Court in later decisions. In Municipal Corporation Of Delhi vs Ganesh Razak, 1995 SCC (1) 235 the legal principal on the issue was summed up as follows :-
" ..where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being, no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under Section 33C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated (LCA No.333/2016) (Sh. Ram Vinod Singh Vs. M/s Allied Holdings Ltd.) Page No.11 of pages 13 on that basis in exercise of its power under section 33C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power under Section 33C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution."
8.7 Now I shall examine the facts of the present case in light of the settled legal position as stated above. In the instant case, the claimant has claimed that he has worked as employee of management w.e.f. 01.07.2004 as a helper continuously till the date of his alleged termination of services on 07.11.2005. Management has claimed that it never had any kind of employer-employee relationship with the claimant for any period whatsoever and as such had no liability whatsoever to pay any amount to the claimant towards earned wages, bonus, leave wages, over time and arrears of minimum wages or otherwise. Management claimed that the claimant was in employment of M/s Dileep Contractor from 01.01.2005 to 30.11.2005, as per the terms of appointment letter dated 01.01.2005 and was deputed by his said employer in the premises of the management under agreement with the management and that he was paid his full and final amount by his said employer on 03.12.2005. Thus, there is apparent dispute on the issue of relationship between the claimant and the management as well as entitlement of the claimant to receive any amount from the management. There is nothing on record to suggest that prior to filing of the present (LCA No.333/2016) (Sh. Ram Vinod Singh Vs. M/s Allied Holdings Ltd.) Page No.12 of pages 13 application, the claimant has ever raised any Industrial Dispute against the management to get the disputed question of relationship as well as entitlement to the benefits claimed by him adjudicated by the competent authority in appropriate proceedings. The claimant has failed to show any pre-existing right as defined in Section 33 (c) 2 of the I.D. Act, 1947 as admittedly there is no earlier adjudication in form of award or settlement or recognition by the employer to the benefits claimed by him. In view of the well settled position of law discussed above, this court doesn't have jurisdiction to first decide the claimant's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under section 33C(2) of the Act. Therefore, I hold that the present application/ petition filed by the claimant u/s 33-C(2) of the ID Act, 1947 is not maintainable. Resultantly, issue is decided against the claimant.
9. -:RELIEF:-
In view of my finding on issue no.1, the claimant is not entitled to any relief against the management. The application filed by the claimant under Section 33-C (2) of the Industrial Disputes Act, 1947 (as amended up to date) is accordingly dismissed.
10. File be consigned to the record room after due compliance.
(Announced in the open Court on 25.05.2023) (MANISHA TRIPATHY) Presiding Officer Labour Court-II Dwarka Courts, Delhi (LCA No.333/2016) (Sh. Ram Vinod Singh Vs. M/s Allied Holdings Ltd.) Page No.13 of pages 13