Delhi District Court
Sh. Jai Singh (Since Deceased) vs M/S Bloom Public School on 31 March, 2023
IN THE COURT OF MS. MANSIHA TRIPATHY
PRESIDING OFFICER : LABOUR COURT-III
ROUSE AVENUE COURTS COMPLEX : NEW DELHI
CNR No.DLCT13-000260-2009
L.C No.1110/2016
Sh. Jai Singh (since deceased),
S/o Sh. Sho Chand,
R/o House No.113, Village Khera Kalan,
Delhi - 110082.
Through Delhi Bhawan Va Anya Nirman
Asangathit Majdoor Sangh (Regd. 02/09),
Branch Office C-36-A, Gali No.15,
Madhu Vihar, New Delhi - 110059. ...Workman.
VERSUS
1.M/s Bloom Public School, C-8, Vasant Kunj, New Delhi - 110070.
2. M/s A2Z Maintenance and Engineering Services Pvt. Ltd., 0-116, First Floor, Shopping Mall, Arjun Marg, DLF City, Phase-I, Gurgaon - 122002, Haryana. ...Management.
(Management no.2 impleaded as party pursuant to order dated 03.02.2011.) Date of institution of case : 07.12.2009 Date on which Award is passed : 31.03.2023
-:A W A R D:-
1. This is an application under Section 33 C (2) of the Industrial Disputes Act 1947 filed on behalf of workman Sh. Jai Singh, S/o Sh. Sho Chand against M/s Bloom Public School (hereinafter referred to as management no.1). Brief facts of the case necessary for adjudication of the present application as alleged by workman are that he was appointed as a school driver, since December 2006 by management no.1 on last drawn wages of Rs.7,150/- per month and he worked honestly and diligently and never gave any chance of complaint to the management (L.C No.1110/2016) (Sh. Jai Singh Vs. M/s Bloom Public School) Page No.1 of pages 19 and worked to the entire satisfaction of management no.1. The management no.1 deliberately did not provide the labour facilities like attendance card, slip of EPF, ESIC card etc., despite his repeated demands and on his consistent demand, only ESI card with three months raw slip were provided to him and even after continuously deducting money from the salary in the name of EPF and ESI, the facilities were not being given to him continuously, rather, his signatures were obtained on various papers, which he signed due to service compulsion. The workman further stated that he was continuously going for his duty and suddenly from the afternoon of 10.12.2008, he was not assigned work and was made to sit by the manager Mr. Manmohan Sharma. Further, despite going to duty continuously, he was not given salary for the month of December 2008, January 2009, February 2009 and March 2009 and on 28.04.2009, upon his insistence to release due salary, Mr. Manmohan Sharma, without giving any reason and giving notice and paying any kind of money etc. terminated him from the services and also gave him various threats. It was alleged that during the course of his employment with management no.1, he performed duty upto 14 hours daily, but was not paid overtime allowance and was also paid less amount towards his earned wages. It was also alleged that at the time of appointment, despite commitment to grant yearly bonus, no bonus was given to him during his employment with management no.1. It was stated that after termination of his services, a Demand Notice was sent to the management no.1, through registered AD but no reply to the said notice was received. Being aggrieved, the workman has filed the claim for recovery of due wages / benefits as the management no.1 withheld the earned wages, overtime, bonus, leave money etc. He prayed for direction to management no.1 to pay outstanding earned wages, overtime wages, bonus and leave encashment amounting to Rs.88,780.34/-, as per calculation chart below:-
Sl. No. Particulars Amount
1 Arrear of earned wages:-
(i). according to last drawn wages of
(L.C No.1110/2016) (Sh. Jai Singh Vs. M/s Bloom Public School) Page No.2 of pages 19
Rs.7,150/- for the month of
December 2008. Rs.7,150/-
(ii). according to last drawn wages
of Rs.7,150/- for the month of
January 2009. Rs.7,150/-
(iii). according to last drawn wages
of Rs.7,150/- for the month of
February 2009. Rs.7,150/-
(iv). according to last drawn wages
of Rs.7,150/- for the month of
March 2009. Rs.7,150/-
(v). according to last drawn wages
of Rs.7,150/- for the month of April
2009 for 28 days. Rs.6,683.34/-
2 Outstanding overtime wages :-
A. During the month December
2008, overtime of 4 to 6 hours per
day was done. But according to 4
hours daily, worked for 108 hours.
Last drawn wage was Rs.7,150/-
and per day wage was Rs.238.33ps,
according to which he owes
Rs.3,176/-, whose double is
Rs.6,352/-, as per rules. Rs.6,352/-
B. During the month January 2009,
according to 4 hours daily, worked
for 108 hours. Last drawn wage was
Rs.7,150/- and per day wage was
Rs.238.33ps, according to which he
owes Rs.3,176/-, whose double is
Rs.6,352/-, as per rules. Rs.6,352/-
C. During the month February 2009,
overtime of 4 to 6 hours per day was
done. But according to 4 hours
daily, worked for 96 hours. Last
drawn wage was Rs.7,150/- and per
day wage was Rs.238.33ps,
according to which he owes
Rs.2,859/-, whose double is
Rs.5,719/-, as per rules. Rs.5,719/-
(L.C No.1110/2016) (Sh. Jai Singh Vs. M/s Bloom Public School) Page No.3 of pages 19
D. During the month March 2009,
overtime of 4 to 6 hours per day was
done. But according to 4 hours
daily, worked for 108 hours. Last
drawn wage was Rs.7,150/- and per
day wage was Rs.238.33ps,
according to which he owes
Rs.3,176/-, whose double is
Rs.6,352/-, as per rules. Rs.6,352/-
E. During the month April 2009,
overtime of 4 to 6 hours per day was
done. But according to 4 hours
daily, worked for 96 hours. Last
drawn wage was Rs.7,150/- and per
day wage was Rs.238.33ps,
according to which he owes
Rs.2,859/-, whose double is
Rs.5,719/-, as per rules. Rs.5,719/-
3 Annual leave money
Yearly 27 days leave should be
allowed but management had taken
the work. According to which, on
the last drawn wage was Rs.7,150/-,
the amount of 27 days comes to
Rs.6,435/- and its double i.e.
Rs.12,870/- should be allowed. Rs.12,870/-
4 Outstanding bonus:-
A. During the year 2005-2006, from
December 2005 to March 2006, as
per the last drawn wages of
Rs.7,150/-, entitled for Rs.2,983/-. Rs.2,983/-
A. During the year 2006-2007, from
March 2006 to March 2007, as per
the last drawn wages of Rs.7,150/-,
entitled for Rs.7,150/-. Rs.7,150/-
Rs.88,780.34/-
2. Notice of the application was issued to management no.1, who appeared (L.C No.1110/2016) (Sh. Jai Singh Vs. M/s Bloom Public School) Page No.4 of pages 19 through its AR and filed Written Statement.
3. In its Written Statement to the statement of claim, management no.1 stated that no employer-employee relationship exists or has been existed between the workman and management no.1. Further the Management no.1 was hiring workers to meet the requirement of temporary workers through the contractor, M/s.
A2Z Maintenance & Engg. Services Pvt. Ltd., O-116, 1st Floor, Shopping Mall, DLF City, Phase-I, Gurgaon, Haryana (hereinafter referred to as management no.2), who was also holding a valid license issued by the competent authority vide license No.CLA/12DLC/SW/06/10 dated 04.04.2006. Even management no.1 has obtained the necessary registration, as required under the Contract Labour (Regulation & Abolition) Act, 1970. It was also stated that on making enquiries, the management no.1 found out that the workman was employed by the contractor / management no.2 and had worked under their supervision and direct control for a brief period of July 2007 till 09.04.2008, whereafter, he left the services of contractor without informing them. Further the workman had thereafter, rejoined his services on 23.08.2008 and has once again left their services without any information on 10.12.2008. It was further stated that the condition precedent, for determination of an amount of money allegedly due to a person and the computation of certain benefits capable of being computed in terms of money, just like the execution proceedings before a Civil Court, is the existence of a pre- existing / recognized / pre-determined and/or a pre-adjudicated declaratory decree and in the instant case, the computation claimed is clearly outside the ambit and scope of the jurisdiction of Labour Court under Section 33-C (2) of the Industrial Disputes Act 1947. It further stated that management no.1 functions only 200 days in a year. The functional timings of the management in general are 7:50 am. to 2.00 p.m. (5 days a week). Moreover, out of the 200 working days, approximately 30 days are towards examination with reduced school timings i.e. 7.50am to 12:00 noon. The management no.1 denied the claim of the workman as raised by him through the present claim and reiterated that workman had never been an employee (L.C No.1110/2016) (Sh. Jai Singh Vs. M/s Bloom Public School) Page No.5 of pages 19 of the management no.1 and had been working with the contractor / management no.2 and as such the present claim, as filed by the workman, is false, fabricated and liable to be dismissed.
4. In rejoinder to the Written Statement of the management no.1, all the averments of the said management were denied and that of Statement of claim were reaffirmed by the workman.
5. Thereafter, from the pleadings of the parties, following issues were framed, vide order dated 15.07.2010:-
(i). Whether the workman is entitled to the amount claimed as acknowledged and pre-existing right? OPW.
(ii). Relief.
6. Thereafter, case was fixed for workman's evidence. In his evidence, workman tendered his evidence by way affidavit as WW-1 on 11.11.2010 and his cross examination was deferred for 18.01.2010. On 11.11.2010, an application for impleadment of M/s A2Z Maintenance & Engg. Services Pvt. Ltd. was also filed on behalf of management M/s Bloom Public School. On 18.01.2011, none appeared on behalf of management and accordingly it was proceeded against exparte and cross examination of workman by management was recored as 'Nil. Opportunity given.' and case was fixed for exparte final arguments on 25.1.2011. On 25.01.2011, order dated 18.01.2011 was set aside by Ld. Predecessor of this court and case was fixed for arguments on the aforesaid application of management for impleadment of M/s A2Z Maintenance & Engg. Services Pvt. Ltd. on 03.02.2011. On 03.02.2011 application of management no.1 for impleading M/s A2Z Maintenance & Engg. Services Pvt. Ltd. as a party as management no.2 was allowed by my Ld. Predecessor and notice was directed to be issued to management no.2 in the present matter. Vide order dated 21.10.2011, management no.1 was proceeded against exparte. Subsequently, upon moving of an application by management no.1 for setting aside of order dated 21.10.2011, the order of proceeding exparte qua management no.1 was set aside vide order dated (L.C No.1110/2016) (Sh. Jai Singh Vs. M/s Bloom Public School) Page No.6 of pages 19 26.11.2011. Management no.2 filed its Written Statement on 17.04.2012.
7. In its Written Statement, management no.2 stated that workman has never worked under the said management and he was infact an employee of management no.1 and for this reason, the workman had filed his demand and claim petition against management no.1 only and management no.2 has unnecessarily been dragged into the case. The workman had never made any claim whatsoever at any point of time against the management no.2 and all the grievances of the workman was only against the management no.1. Further the initial claim was filed by the workman against the management no.1 only, while the management no.2 has been impleaded only at the pretext of management no.1, who had filed an application before the Court for its impleadment as necessary party and it has been unnecessarily harassed by the management no.1 to shun its responsibility towards the workman by impleading it as party in the matter. It was also stated that no cause of action has been pleaded by the workman against the management no.2 and also no relief has been prayed against it by the workman. It was also stated that the instant claim petition under Section 33C (2) of Industrial Disputes Act is barred by limitation as a workman is entitled to present his claim within one year from the date on which the money became due to the workman from his employer and in the present case, the workman has not claimed any money from management no.2, rather, it was impleaded after two years of the pending litigation between the workman and management no.1 and as such the claim of the workman is barred qua management no.2.
8. Rejoinder to the Written Statement of management no.2 was also filed on behalf of workman. Thereafter, vide order dated 18.08.2012 issues were again framed in the matter, which are as under:-
(i). Whether the claimant is entitled to the monetary relief, as prayed for?
9. No other issue arose or pressed for and then the case was adjourned for evidence of the workman on 22.11.2012. Thereafter, on 18.02.2013, an application (L.C No.1110/2016) (Sh. Jai Singh Vs. M/s Bloom Public School) Page No.7 of pages 19 for informing the court about the death of workman and impleadment of his LRs was preferred on behalf of workman and the said application was allowed by the Ld. Predecessor of this court vide order dated 04.04.2013. On 21.01.2014, wife/ legal heir of deceased workman namely Ms. Savitri Devi was examined-in-chief as WW-2 and her cross examination was deferred for 15.02.2014. On 15.02.2014, WW-2 was cross examined on behalf of management no.1 and her cross examination for management no.2 was deferred. On 03.06.2014, WW-2 was also cross examined on behalf of management no.2 and thereafter, workman's evidence was closed and case was fixed for leading of management evidence. On 18.07.2014, management no.1 examined-in-chief Ms. Tarveen Kaur, its Administrative Officer as M1W1 and her cross examination was deferred for 12.08.2014. Opportunity was also accorded to the management no.2 on 18.07.2014 to file the affidavit of another management witness, on request of it's Counsel that the witness, whose affidavit has been filed on record, has left the services. On 12.08.2014, none appeared on behalf of management no.2, accordingly, opportunity of management no.2 to lead evidence was closed. On 24.03.2015, an application for recalling and setting aside of order dated 12.08.2014 was filed on behalf of management no.2, which was allowed by the Ld. Predecessor of this court vide order dated 02.06.2015. On 04.08.2015, management no.2 led its evidence by recording examination-in-chief of Mr. Kunwar Atuleshwar Singh as M2W1 and his cross examination was deferred. On 12.02.2016, an application for substitution of M1W1 Ms. Tarveen Kaur by Mr. Manmohan Sharma was filed on behalf of management no.1, which was allowed vide order dated 12.02.2016. An application for dropping the witness, whose affidavit was previously filed/had been examined-in-chief, was also filed on behalf of management no.2 on the ground that the said witnesses have left the company, which was allowed by the court and accordingly, management no.2 filed affidavit of Mr. Suresh Kumar Pradhan in its defence. On 18.03.2016, management no.1 filed evidence by way of affidavit of Sh. Manmohan Sharma and examination-in-chief of said witness was recorded on (L.C No.1110/2016) (Sh. Jai Singh Vs. M/s Bloom Public School) Page No.8 of pages 19 29.08.2016 as M1W1 and his cross examination was deferred. Thereafter, on 18.11.2016 and 30.05.2017, M1W1 was further partly cross examined and his further cross examination was deferred for 11.07.2017 on the ground that Labour Inspector was not present alongwith the Conciliation Proceedings. On 21.07.2017, application under Section 11 of the Industrial Dispute Act for cross examining the witness of management no.2 was filed on behalf of management no.1. On 21.07.2017, it was submitted on behalf of management no.2 that they do not wish to lead any further evidence. On 18.08.2017, management no.1's witness Sh. Sandeep Kumar (the then Senior SSA, EPFO, Gurgaon, Haryana) was examined, cross examined and discharged as M1W2 and case was fixed for leading of remaining management evidence on 25.08.2017. Vide order dated 25.08.2017, aforementioned application of management no.1 filed on 21.07.2017, was allowed by Ld. Predecessor of this court thereby allowing the management no.1 to cross examine M2W1 as well as summon the witnesses from EPFO, Gurgaon and case was fixed for management evidence on 08.09.2017. On 19.09.2017, management no.2 witness M2W1 Sh. Suresh Kumar Pradhan was examined-in-chief and cross examined on behalf of management no.1 and his cross examination by workman was deferred for the next date of hearing. Vide order dated 13.10.2017, Management Evidence was closed and case was fixed for final arguments.
10. Workman led his evidence and stepped in the witness box as WW-1 and tendered his evidence by way of affidavit as Ex.WW1/A, wherein he reiterated on oath the averments made in his statement of claim. He relied on the documents Ex.WW1/1 to Ex.WW1/6, which are as under:-
(i). Copy of Demand Notice Ex.WW1/1;
(ii). Original registered AD postal receipt Ex.WW1/2;
(iii). Copy of driving license Ex.WW1/3;
(iv). Copy of vehicle badge Ex.WW1/4;
(v). Copy of certificate issued by Vehicle Authority and
approved by School Management Ex.WW1/5; and
(L.C No.1110/2016) (Sh. Jai Singh Vs. M/s Bloom Public School) Page No.9 of pages 19
(vi). Copy of challan receipt of challan deposit in the name of workman Ex.WW1/6.
11. Thereafter, wife/legal heir of deceased workman namely Ms. Savitri Devi stepped into the witness box as WW-2 and tendered her evidence by way of affidavit as Ex.WW2/A and relied upon the documents, which were exhibited by WW-1 in his deposition.
11.1 She was cross examined by Ld. AR for the management no.1 & 2 and discharged. Then workman's evidence was closed and case was fixed for management evidence.
12. Management no.1 in support of its defence examined two witnesses i.e. Sh. Manmohan Sharma and Sh. Sandeep Kumar as M1W1 and M1W2 respectively.
13. M1W1 Sh. Manmohan Sharma tendered his evidence by way of affidavit as Ex.M1/W1/A, wherein he reiterated on oath the averments made in the Written Statement, filed by management no.1. He relied on the following documents:-
(i). Copy of license and registration certificate of the management no.2 and 1 respectively, obtained under Contractor Labour (Regulation & Abolition) Act 1976 Mark A; and
(ii). Copy of documents showing that the claimant was an employee of management no.2 Mark B. 13.1 M1W1 was cross examined and discharged.
14. M1W2 Sh. Sandeep Kumar, who was a summoned witness from the office of EPFO, Gurgaon, Haryana, deposed that the summoned record from the department does not belong to the present case.
15. Management no.2 in support of its defence examined one witness i.e. Sh.
Suresh Kumar Pradhan as M2W1, who tendered his evidence by way of affidavit as Ex.M2W1/A, wherein he reiterated on oath the averments made in the Written Statement, filed by management no.2.
(L.C No.1110/2016) (Sh. Jai Singh Vs. M/s Bloom Public School) Page No.10 of pages 19 15.1 He was cross examined by Ld. AR for the management no.1 and discharged.
16. Thereafter, final arguments were advanced by Ld. ARs for the parties. I have given thoughtful consideration to the submissions of both the parties and perused the record carefully.
17. My issue wise findings are as follows:-
18. Issue No.1.:-
(i). Whether the workman is entitled to the amount claimed as acknowledged and pre-existing right?
18.1 The maintainability of the present application u/s. 33 C(2) of the Act has been challenged by both the managements.
18.2 It has been submitted on behalf of the management no.1 that there has never been a relationship of employer and employee between the workman and management no.1 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 holding existence of such relationship, no claim of money/benefit is maintainable by the workman against management no.1 under proceedings under section 33C(2) of the Industrial Dispute Act.
18.3 Similarly, it was submitted on behalf of the management no.2 that the workman has claimed his employment and consequent benefits from the period of his alleged appointment in December 2006 till his alleged termination on 28.04.2009, whereas he was employee of management no.2 only with effect from July 2007. It was further submitted that the workman had claimed all his dues before leaving his services and there was no due left with the management no.2. It was further submitted that no overtime has ever been done by the claimant, as alleged, and the leaves and holidays were availed by him during his service tenure and as such no dues whatsoever is left with the management no.2. It was claimed that since the relationship / period of employment of workman with management (L.C No.1110/2016) (Sh. Jai Singh Vs. M/s Bloom Public School) Page No.11 of pages 19 no.2 as well as entitlement of workman to overtime allowance was in dispute, these questions as to the period of relationship and entitlement of the workman to the benefit claimed by him can't be decided in the present proceedings under section 33C(2) of the Industrial Dispute Act.
18.4 The scope and ambit of section 33C(2) of ID Act,1947 was examined by Hon'ble Apex Court in Chief Mining Engineer, East India Coal Co. Ltd. v. Rameshwar & ors. (1968) 1 SCR 140 , which 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 later 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 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 (L.C No.1110/2016) (Sh. Jai Singh Vs. M/s Bloom Public School) Page No.12 of pages 19 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 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, (L.C No.1110/2016) (Sh. Jai Singh Vs. M/s Bloom Public School) Page No.13 of pages 19 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."
18.5 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 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."
18.6 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 workman has claimed that he has worked as employee of management no.1 w.e.f. December 2006 as a Driver continuously till the date of his alleged termination of services on 28.04.2009. Management no.1 has denied any kind of employer-employee relationship with the workman for any period whatsoever and has stated that workman was an employee (L.C No.1110/2016) (Sh. Jai Singh Vs. M/s Bloom Public School) Page No.14 of pages 19 of its contractor M/s A2Z Maintenance & Engg. Services Pvt. Ltd. (management no.2). Management no.2 (who was initially not a party to the present claim/ application and against whom the workman has not claimed any relief) was impleaded on behest of management no.1 and initially denied any kind of relationship with the workman in its written statement as well as evidence by way of affidavit, but subsequently during his cross examination, its witness admitted the relationship of employer-employee with the workman w.e.f. July 2007 and contended that service of workman was never terminated by it, rather the workman voluntarily left the services of management no.2 after taking all his dues. Thus, there is apparent dispute on the issue of relationship of employer-employee between the workman and the management no.1 and the period of his relationship/employment with management no.2.
18.7 In view of the settled case law, these question obviously could not have been decided in the present proceedings under Sec.33C(2) of the ID Act. The workman had also raised an industrial dispute vide LID No.341/2016 separately wherein the question of existence of relationship of employer and employee between the workman and both the management no.1 as well as management no.2 was in issue and the same has been decided in favour of the workman by holding that the workman was employee of management no.1 for the period 26.12.2006 to 28.04.2009 whereas he never joined and did not have relationship of employer and employee with management no.2. Since, it has been adjudicated that the management no.1 had relationship with workman as employer and employee and the duration of such relationship was for a period from 26.12.2006 to 28.04.2009, the present application is maintainable in respect of management no.1 for the benefits/ entitlement claimed for the said period.
18.8 The issue is decided accordingly.
19. Issue no.2:-
(ii). Whether the claimant is entitled to the monetary relief, (L.C No.1110/2016) (Sh. Jai Singh Vs. M/s Bloom Public School) Page No.15 of pages 19 as prayed for?
19.1 I shall specifically deal with question as to whether or not the workman is entitled to the various benefits claimed by him in the present application from management no.1 for the period from 26.12.2006 to 28.04.2009 and if so, to what amount.
19.2 Earned Wages:-
The workman has claimed earned wages for the period from December 2008 to 28.04.2009. The management no.1 claimed that the workman had left his services in December 2008 and it was not even the case of management no.1 that any earned wages for the period of December 2008 to 28.04.2009 was paid to the workman. Therefore, the workman is entitled to the earned wages for the period of December 2008 to 28.04.2009 @ last drawn wages of Rs.7,150/- per month. However, while granting relief to the workman in industrial dispute between the parties vide LID No.341/2016, amount payable towards earned wages for the above said period has already been included as part of lump sum compensation payable to the workman by the management no.1. Consequently, same is not being computed / granted separately in this application. 19.3 Overtime Wages:-
The workman has claimed over time wages for the period from December 2008 to March 2009, but management no.1 disputed his entitlement of the same on the ground that school functioned only for 200 days a year and functional timing of the school were 7.50 AM to 2.00 PM, (five days a week), out of which approximately 30 days were towards examination with reduced school timings of 7.50 AM to 12.00 noon. The claimant being a driver had only to bring the children at a specified time and thereafter leave them at their respective homes. Thus, the duty hours of the claimant were divided in two parts, first when the children were brought form their homes and second when they were left at their respective homes. In the circumstances, it was claimed, the occasion for doing any over time could never arise and as such the claimant was not entitled to any (L.C No.1110/2016) (Sh. Jai Singh Vs. M/s Bloom Public School) Page No.16 of pages 19 overtime allowance.
Admittedly, there is neither any prior adjudication nor any settlement on entitlement to overtime allowance to the workman. Admittedly overtime allowance was never given to the workman by management no.1 during his tenure with it from 26.12.2006 to 28.04.2009. There is no document in form of appointment letter or policy or standing order recognising entitlement of the workman to overtime allowance. No legal provision is cited either by virtue of which the workman would have necessarily been entitled to overtime allowance by implication of law. The entitlement of the workman to overtime is disputed by management no.1 and in absence of any earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement to overtime allowance is, outside the scope of present proceeding under Section 33C(2) of the Act. 19.4 Bonus:-
The workman has claimed yearly bonus for December 2005 to March 2007 @ 8.33% per annum. It is not the case of the management no.1 that the workman was not entitled to the bonus for any reason. It also failed to produce any document/ bonus register of the relevant period of employment to show that the bonus was paid to the workman. However, considering that the workman came in employment of management no.1 in 26.12.2006, he is entitled to claim bonus w.e.f. 26.12.2006 only and not prior to that.
Payment of Bonus Act prescribes minimum bonus @ 8.33% per annum payable during the accounting year subject to fulfillment of eligibility of minimum 30 working days in the accounting year. In Jeet Lal Sharma v. Presiding Officer, Labour Court IVth and Anr. 2005 (85) FLR 268 the question relating to ambit and scope of powers of labour court U/s 33 C (2) was adjudicated upon and it was held :-
"13.When the claim is based on adjudication or settlement it poses no difficulty. However, there may be cases where the workman would be held entitled to receive the money as pre-existing right on the basis of (L.C No.1110/2016) (Sh. Jai Singh Vs. M/s Bloom Public School) Page No.17 of pages 19 the agreement between the employer and employee or as per established service conditions which have culminated into right in favour of the workman. Take for example, when a workman is not paid his wages for a particular period, he shall be entitled to file application under Section 33 C (2) of the Act claiming wages for that period as he is entitled to receive the same at the rate agreed upon and at which the employer has been paying to him in the past. There is no adjudication or settlement but he is entitled to receive the wages of the period in dispute. This is as per the terms of employment.... Same may be the position in respect of the payment of minimum bonus....."
In view of aforesaid workman is held entitled to bonus @ 8.33% per annum as per the last drawn wages of Rs.7,150/- only for the period w.e.f. 26.12.2006 to March 2007 from management no.1 out of the bonus claimed for the period of December 2005 to March 2007.
19.5 Leave Enacahsment:-
Lastly, the workman has claimed leave encashment of annual leave @ 27 days, which has been disputed by the management no.1 claiming that the school was functional only for approximately 200 days in a year and that all holidays and leaves were duly availed by the workman. Testimony of management witness in this regard that the school functioned only for about 200 days a year and was not functional on holidays and also that the workman as a driver was only required to drive school bus to bring children from their homes to school in the morning and then drop them to their respective homes after school has remained unrebutted.
Coming to the annual leave, Section 22 of Delhi Shops and Establishments Act 1954 prescribes that every person employed in an establishment shall be entitled to privilege leave of not less than 15 days after every 12 month's continuous employment and leave not less than 5 days after completion of 4 months of continuous employment. It also lays down that any part of such unveiled leave shall be added to the privilege leave in respect of the (L.C No.1110/2016) (Sh. Jai Singh Vs. M/s Bloom Public School) Page No.18 of pages 19 succeeding period to which such person is entitled to, subject to maximum of three times the the period of privilege leave to which he is entitled after every 12 month's employment. It further lays down that upon cessation of employment, the employee shall be entitled to encash full wages for the period of such privilege leave as is due to him.
Management was in possession of the best evidence to prove its plea that the workman has already availed off the privileged leave after the same was sanctioned by it. In the absence of leave register or any record to prove the same, it can be presumed that workman did not avail of all of his annual leaves, as claimed by the management no.1 and that he had accumulated 27 days of annual privileged leave during his period of employment. The workman is accordingly entitled to encash the same as per the last drawn wages of Rs.7,150/-.
20. Relief:-
In view of my finding on issue no.2, workman is held entitled to Bonus of Rs.1,907/- ( for the period w.e.f. 26.12.2006 to March 2007 @ 8.33 % per annum as per last drawn wages of Rs.7,150/- per month) and leave encashment of Rs.6,435 /- ( for 27 days as per last drawn wages of Rs.7,150/- per month), thereby a total amount of Rs.8,342/- from management no.1. Ordered Accordingly.
21. File be consigned to the Record Room after due compliance.
(Announced in the open
Court on 31.03.2023) (MANSIHA TRIPATHY)
Presiding Officer Labour Court-III
Rouse Avenue Courts, New Delhi
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