Delhi District Court
Sh. Azad Singh 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.DLCT13-000245-2008
LC No.2333/2016
Sh. Azad Singh, S/o Late Sh. Chetan Prakash,
R/o VPO Barthal, New Delhi-110077.
Through Rajdhani Audhyogik General Workers
Union, Office - C 36A, Gali A -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 vide order dated 09.08.2010.) Date of institution of case : 20.05.2008 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 claimant Sh. Azad Singh, S/o Sh. Chetan Prakash 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 employed by the owner / management no.1 on 02.12.2004 as a bus driver, on the last drawn salary of Rs.5,175/- per month and he worked honestly and diligently and never gave any chance of complaint to the management and worked to the entire satisfaction of management no.1. During the (L.C No.2333/2016) (Sh. Azad Singh Vs. M/s Bloom Public School) Page No.1 of pages 22 service, the management deliberately did not provide the labour facilities, despite his repeated demands and even though the management continued to get papers signed from him on pretext of labour facilities, which he continued to sign as per the desire of management due to the helplessness, no facilities were never provided to him. He worked for 12 to 14 hours with honesty and diligence but was never paid the over time amount and he was paid less amount towards earned wages. It was further averred that at the time of appointment, he was assured of yearly bonus, but no bonus was given to him. Further on 29.01.2008, when he was on duty, Sh. Manmohan Sharma, Manager of management, without giving any notice and assigning any reason illegally terminated his services by illegally withholding his earned wages. He further averred that he wrote a complaint to the Labour Office in this regard and during the proceeding neither anybody appeared on behalf of management nor documents pertaining to him were produced nor any payment was made and in this regard, a written report was received by him from the Labour Inspector. Further he also sent a Demand to the management no.1, through registered AD but despite receiving of the same, the said management did not reply to the said notice. He also averred that he also filed a claim before the Labour Conciliation Officer but despite best efforts management no.1 neither paid the back wages etc. nor reinstated him and intentionally kept on delaying the matter. 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.2,81,879.92/-, as per calculation chart below:-
Sl. No. Particulars Amount 1 Arrear of earned wages:- Rs.5,000/-
29 days in the month of January 2008, Last Salary Rs.5,175/- + E.S.I + E.P.F and minimum of Rs.5,000/- is (L.C No.2333/2016) (Sh. Azad Singh Vs. M/s Bloom Public School) Page No.2 of pages 22 to be taken from the owner.
2 Outstanding overtime wages :-
A. Worked for 96 hours in January 2008.
Last drawn Salary Rs.5,175/-, single wages according to Rs.28.43/- per hour comes to Rs.2,729.28/-, whose double salary is Rs.5,458.56/-, as per Rs.5,458.56/- rules.
The arrears of overtime wages done in the previous service, as above, are to be taken as under:-
Year 2007:-
B. Worked for 1224 hours from 01.01.2007 to December 2007.
Accordingly to last drawn Salary of Rs.5,175/-, single wages comes to Rs.34,798.32/-, whose double salary is Rs.59,596.64/-, as per rules. Rs.59,596.64/-
Year 2006:-
C. Worked for 1224 hours from January 2006 to December 2006.
Accordingly to last drawn Salary of Rs.5,175/-, single wages comes to Rs.34,798.32/-, whose double salary is Rs.59,596.64/-, as per rules. Rs.59,596.64/-
Year 2005:-
D. Worked for 1224 hours from January 2005 to December 2005.
Accordingly to last drawn Salary of Rs.5,175/-, single wages comes to Rs.34,798.32/-, whose double salary is Rs.59,596.64/-, as per rules. Rs.59,596.64/-
Year 2004:-
E. Worked for 104 hours from 02.12.2004 to 31.12 2004.
Accordingly to last drawn Salary of Rs.5,175/-, single wages comes to Rs.2,956.72/-, whose double salary is Rs.5,913.44/-, as per rules. Rs.5,913.44/-
3 Wages for overtime work done during annual holidays:-
(L.C No.2333/2016) (Sh. Azad Singh Vs. M/s Bloom Public School) Page No.3 of pages 22 From 02.12.2004 to 29.01.2008 according to 23 days per year and last drawn Salary of Rs.5,175/-, yearly single wages comes to Rs.4,577/-, whose double salary is Rs.9,154/-, as per rules. With this for the last three years Rs.27,462/- (i.e. Rs.9,154/- X 3) is to be taken. Rs.27,462/-
4 Annual leave money Yearly 15 days annul leaves are entitled, Yearly 15 days festival leaves are entitled, but management has granted only 7 days festival leaves and yearly 8 leaves are yet to be taken.
As such yearly entitlement of leave is 23 (i.e. 15 + 8) and in the last three years, 69 days money is to be taken which according to last drawn Salary of Rs.5,175/- comes to Rs.13,731/-. Rs.13,731/-
5. Outstanding bonus:-
According to yearly 8.33%, outstanding bonus for the last three years as per last drawn Salary of Rs.5,175/- comes to Rs.15,225/-. Rs.15,225/-
Rs.2,81,879.92/-
2. Notice of the application was issued to the management no.1, who appeared through its AR and filed Written Statement.
3. In its Written Statement to the statement of claim, management no.1 stated that the workman has never worked under the said management, rather, he was an employee of an independent contractor i.e. M/s A2Z Maintenance & Engg. Services Pvt. Ltd. (hereinafter referred to as management no.2) and drew his salary and all other benefits including PF, ESI etc. from them and as such allegation that his services were terminated by the management no.1 on 29.01.2008 is false, erroneous and without any basis and hence the workman does not fall under the (L.C No.2333/2016) (Sh. Azad Singh Vs. M/s Bloom Public School) Page No.4 of pages 22 scope and ambit of the definition of 'workman' under the Industrial Disputes Act, 1947 vis-a-vis the Management. Further, the Management no.1 was hiring workers to meet the requirement of temporary workers through the contractor/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 the management 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 found out that the workman was employed by the contractor / management no.2 and the said contractor has been complying with all the provisions of the applicable labour laws with respect to the workman. The provident Fund and ESI etc. of the workman was being deposited in the code numbers of the contractor i.e. HR/25339 and 1331219-90 respectively. Further the claim is liable to be rejected on the ground of misjoinder of necessary party, as the contractor, immediate employer has not been made a party to the present claim petition. It was 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 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.
(L.C No.2333/2016) (Sh. Azad Singh Vs. M/s Bloom Public School) Page No.5 of pages 22
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 17.03.2009:-
(i). Whether application of the claimant is not
maintainable? OPM.
(ii). To what amount, if any, the claimant is entitled to be
paid by the management? OPW.
(iii). Relief.
6. Thereafter, case was fixed for workman's evidence on 21.04.2009. In his evidence, workman tendered his evidence by way affidavit as WW-1 on 03.06.2009 and was also partly cross examined on 01.08.2009. An application for impleading M/s A2Z Maintenance & Engg. Services Pvt. Ltd. as a party was also filed filed on behalf of management M/s Bloom Public School on 01.08.2009, which was allowed by my Ld. Predecessor vide order dated 09.08.2010. Vide order dated 11.03.2011, management no.2 was proceeded against exparte. Subsequently, upon moving of an application by management no.2 for setting aside of order dated 11.03.2011, the order of proceeding exparte qua management no.2 was set aside vide order dated 18.02.20212 and management no.2 was allowed to file its Written Statement. Accordingly, management no.2 filed its Written Statement. Vide order dated 21.10.2011, management no.1 was also proceeded against exparte, and an application for setting aside of said order was also preferred on behalf of management no.1, which was allowed by Ld. Predecessor of this court vide order dated 26.11.2011.
7. 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 workman is entitled to monetary relief (L.C No.2333/2016) (Sh. Azad Singh Vs. M/s Bloom Public School) Page No.6 of pages 22 as claimed in the present claim? OPW.
(ii). Relief.
8. No other issue arose or pressed for and then the case was adjourned for evidence of the workman on 22.11.2012. Thereafter, on 18.09.2013, workman was cross examined by both the managements and then workman's evidence was closed and case was fixed for leading of Management Evidence. On 21.08.2014, management no.1 examined-in-chief Sh. Manmohan Sharma, its Administrative Officer as M1W1 and his cross examination was deferred. On 18.10.2014, an application was filed on behalf of management no.2 for amendment in its Written Statement, which was allowed vide order dated 05.12.2014 by the Ld. Predecessor of this court subject to cost of Rs.15,000/- and case was fixed for filing of amended Written Statement by management no.2. Accordingly, amended Written Statement was filed on behalf of management no.2 on 13.01.2015.
9. In its amended Written Statement, management no.2 stated that the workman has never worked under the said management from 2004 to 06.02.2007. It used to work as contractor with management no.1 and had started its services from 01.06.2006 onwards. It was also stated that the workman was infact an employee of the management no.1 and for this reason, he 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 its employee i.e. 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 (L.C No.2333/2016) (Sh. Azad Singh Vs. M/s Bloom Public School) Page No.7 of pages 22 it by the workman. It was further claimed that the workman was never terminated by the management no.2 and that the workman himself abandoned the job as he was not interested to work with management no.2 being employee of the contractor and as such workman has no grievance whatsoever against the management no.2. It was also stated that the instant claim petition under Section 33C (2) of Industrial Disputes Act is barred by limitation. Further 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. It was further stated that the workman had joined the management no.2 only on 01.06.2005 as driver, on submission of his application for job. Further the management no.2 had started their services with the management no.1 as contractor w.e.f. 01.02.2006 as such there was no question of appointing the workman as driver before 2006 with the management no.2. It was also stated that since the working of the workman was in school, which always had a scheduled time in general from 7.30 AM to 2.00 PM, there was no question of doing overtime. The workman was being provided with all the facilities like ESI and PF by the management no.2 from the first day of his joining and he was well aware of the same as he had filled the application form to enroll himself under ESI and PF. It was also stated that the management no.2 had never taken any signatures of workman on papers etc. The workman had never demanded bonus, as alleged, from the management no.2 as he had worked with it for a short period. It was further stated that the workman had joined the management no.2 only on 07.02.2007 and had no relation of any kind before 2007 and the workman had claimed all his dues during the course of his employment except wages for the month of January 2008 for 29 days and the same was already paid to him when he left the services of his own and there is no due left with the management no.2. Further no overtime has ever been done by the workman, as (L.C No.2333/2016) (Sh. Azad Singh Vs. M/s Bloom Public School) Page No.8 of pages 22 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.
10. Rejoinder to amended Written Statement of management no.2 was also filed on behalf of workman on 06.02.2015, wherein all the averments of the management were denied and that of Statement of claim were reaffirmed by the workman.
11. Thereafter, case was again fixed for leading of workman evidence for 10.04.2015. Thereafter, on 18.11.2016 and 30.05.2017, M1W1 was further partly cross examined and on 30.05.2017 his further cross examination was deferred for 11.07.2017 on the ground that Labour Inspector was not present alongwith the Conciliation Proceedings. On 11.07.2017, while recording his statement, Labour Inspector submitted that the conciliation file was not traceable despite best efforts and thereafter, Ld. AR for the workman submitted that he has no further question to be asked from M1W1 Sh. Manmohan Sharma. On the said date, management no.2's witness namely Sh. Suresh Kumar Pradhan was examined-in-chief, cross examined and discharged as M2W1 and then case was fixed for further proceedings / remaining ME, if any, on 21.07.2017. 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 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. Accordingly, on 08.09.2017, M1W2 was partly examined-in-chief and on 15.09.2017, M1W2 further examined and discharged. On 15.09.2017, management no.1 witness M2W1 Sh. Suresh Kumar Pradhan was also cross examined on behalf (L.C No.2333/2016) (Sh. Azad Singh Vs. M/s Bloom Public School) Page No.9 of pages 22 of management no.1 as well as workman and then Ld. Predecessor of this court, vide his order dated 15.09.2017, closed the management evidence and case was fixed for final arguments on 19.09.2017. On 19.09.2017, Ld. Counsel for management no.1 brought before the court original contract dated 01.06.2015 executed between management no.1 and management no.2 and sought permission to further cross examine M2W1 and confront the abovesaid document to him, which was allowed, and accordingly, M2W1 Sh. Suresh Kumar Pradhan was further cross examined by management no.1 and discharged and then case was fixed for management evidence, if any / final arguments on 26.09.2017. On 26.09.2017, it was submitted that no further ME is to be led and accordingly, ME was closed and case was fixed for final arguments.
12. Workman led his evidence and stepped in the witness box as WW-1 and tendered his evidence by way of affidavit as Ex.WW1/1, wherein he reiterated on oath the averments made in his statement of claim. He relied on the documents Ex.WW1/1 to Ex.WW1/12, which are as under:-
(i). Copy of complaint dated 04.02.2008 filed before the Labour Office Ex.WW1/1;
(ii). Copy of report of Labour Inspector dated 12.05.2008 (hand written) Ex.WW1/2;
(iii). Copy of Demand Letter Ex.WW1/3;
(iv). Copy of registered AD postal receipt Ex.WW1/4;
(v). Copy of registered AD Card Ex.WW1/5;
(vi). Copy of log book register in respect of school bus Ex.WW1/6;
(vii). Copy of claim dated 10.03.2008 filed before the Labour Conciliation Officer Ex.WW1/7;
(viii). Copy of challan / document issued by Enforcement Staff Tpt. Deptt., G.N.C.T. of Delhi in the name of claimant / workman Ex.WW1/8;
(L.C No.2333/2016) (Sh. Azad Singh Vs. M/s Bloom Public School) Page No.10 of pages 22
(ix). Copy of certificate issued by Institute of Driving Training & Research in the name of workman Ex.WW1/9;
(x). Copy of authorization card issued by the Vehicle Authority in the name of claimant / workman Ex.WW1/10;
(xi). Copy of application written by the management to the Secretary (STA), Transport Department, in the name of claimant / workman Ex.WW1/11 and
(xii). Copy of identity card of workman Ex.WW1/12.
12.1 Workman was cross examination by AR of the management no.1 and management no.2 and discharged.
12.2 Thereafter, on the statement of Ld. AR for workman, workman's evidence was closed on 18.09.2013 and case was fixed for leading of management evidence.
13. 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.
14. 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). Original letter dated 05.09.2007 by management no.2 to the management no.1 requesting for issuance of authorization card in respect of claimant from Transport Department Ex.M1/W1/1;
(ii). Copies of EPF Annual Statement for the period from 01.04.2005 to 31.03.2006, in respect of claimant, as submitted by the management no.2, Mark A;
(iii). Copies of wage register of the management no.2 in respect of the claimant, for the months of August 2007 to January 2008 Mark B;
(L.C No.2333/2016) (Sh. Azad Singh Vs. M/s Bloom Public School) Page No.11 of pages 22
(iv). Copies of wage register of the management no.2 for the months of February & March 2008 as Mark C;
(v). Copy of registration certificate in favour of the management no.1 issued under Contract Labour Act showing the management no.2 as its contractor Mark D; and
(vi). Copy of license certificate in favour of the management no.2 issued under Contract Labour Act showing the management no.1 as its principle employer Mark E. 14.1 He was cross examined by Ld. AR for workman and discharged.
15. M1W2 Sh. Sandeep Kumar, who was a summoned witness from the office of EPFO, Gurgaon, Haryana, produced record pertaining to Code No.GNGGN00253390000000852 for the period 2010 to 2018 belonging to member Azad Singh Ex.M1W2/A (colly.). He stated that he searched for PF Nomination Form, Annual Contribution Card and Annual Statement pertaining to the abovesaid code number and the same are not traceable on the basis of particulars supplied by management no.1.
16. 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. He relied on the following documents:-
(i). Copy of contract for employment of Security / Housekeeping / Maintenance issued by management A2Z Maintenance & Engineering Services Pvt. Ltd. in the name of workman Mark M2W1/1;
(ii). Copy of License bearing No.CLA/12DLC/ SW/06/10 dated 04.04.2006 issued by the competent authority in the name of A2Z Maintenance & Engineering Services (L.C No.2333/2016) (Sh. Azad Singh Vs. M/s Bloom Public School) Page No.12 of pages 22 Pvt. Ltd. Mark M2W1/2;
(iii). Copy of statement of PF contribution made by A2Z Maintenance & Engineering Services Pvt. Ltd. during financial year April 2006 to March 2007 under Code : I- E/HR/25339 Mark M2W1/3;
(iv). Copy of Form-3A regarding contribution card for currency period from 1st April 2007 to 31st March 2008 under Account No.HR/25339/852 Mark M2W1/4;
(v). Copy of letter written by A2Z Maintenance & Engineering Services Pvt. Ltd. to the Employee's State Insurance Office regarding submission of ESI Return (April 07 to September 07) under ESI Code No.13- 31219-90 Mark M2W1/5; and
(vi). Copy of FORM-6 of A2Z Maintenance & Engineering Services Pvt. Ltd. for the period 01-04.2007 to 10.09.2007 Mark M2W1/6.
16.1. He was cross examined and discharged.
17. Sh. Ashok Kumar, the then Labour Inspector (SWD) was examined in this matter as a court witness, who deposed that report of Conciliation Office (the conciliation file No.C-49/2008/LO/SWD) was not traceable. He produced the record (i) Extract of Dispatch Register (dispatch no.689/08 dated 11.03.2008, (ii) another dispatch no.781/08 dated 27.03.2008 and (iii) Notice dispatch no.904/ 16.04.2008, bearing the entries of issuance of notices to management no.1 in file no.No.C-49/2008/LO/SWD vide Ex.CW1/1. He deposed that notices were sent by post and no notice was issued to management no.2.
18. 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.
19. My issue wise findings are as follows:-
(L.C No.2333/2016) (Sh. Azad Singh Vs. M/s Bloom Public School) Page No.13 of pages 22
20. Issue No.1:-
(i) Whether application of the claimant is not
maintainable? (OPM)
20.1 The maintainability of the present application u/s. 33 C(2) of the Act has
been challenged by both the managements.
20.2 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 saparate 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.
20.3 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 on 02.12.2004 till his alleged termination on 29.01.2008, whereas he was employee of management no.2 only for a limited period of 07.02.2007 to 28.01.2008. It was further submitted that the workman had claimed all his dues before leaving his services except wages for the month of January 2008 for 29 days and that the same was already paid to him when he left the services of his own and there is 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 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.
(L.C No.2333/2016) (Sh. Azad Singh Vs. M/s Bloom Public School) Page No.14 of pages 22 20.4 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 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 (L.C No.2333/2016) (Sh. Azad Singh Vs. M/s Bloom Public School) Page No.15 of pages 22 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, 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."
(L.C No.2333/2016) (Sh. Azad Singh Vs. M/s Bloom Public School) Page No.16 of pages 22 20.5 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."
20.6 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. 02.12.2004 as a Driver continuously till the date of his alleged termination of services on 29.01.2008. Management no.1 has denied any kind of employer-employee relationship with the workman for any period whatsoever and has stated that workman was employee of independent 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 it has admitted the relationship of (L.C No.2333/2016) (Sh. Azad Singh Vs. M/s Bloom Public School) Page No.17 of pages 22 employer-employee with the workman for the brief period of 07.02.2007 till 28.01.2008 and contended that service of workman was never terminated by it, rather the workman voluntarily left the services of management no.2 w.e.f. 29.01.2008 after taking all 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. 20.7 In view of the settled case law, these question obviously could not have been decided in the present proceedings under s.33C(2) of the ID Act. The workman had also raised an industrial dispute vide L.I.D. No.11/2016 separately wherein the question of existence of relationship of employer and employee between the workman and management no.1 was in issue and the same has been decided in favour of the workman by holding that there existed a relationship of employer and employee between management no.1 and the workman w.e.f. 02.12.2004 to 06.02.2007 and thereafter, the workman was an employee of management no.2 w.e.f. 07.02.2007 to 29.01.2008. Since, the issue of relationship between the workman and both management no.1 and management no.2 as well as the respective period of his employment with both managements stand adjudicated in those proceedings, the present application is maintainable. 20.8 The issue is decided accordingly.
21. Issue no.2:-
(ii). To what amount, if any, the claimant is entitled to be paid by the management?
21.1 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 and if so, to what amount.
21.2 Earned Wages:-
The workman has claimed earned wages for the period for the period of 29 days for the month of January 2008. Management no.2, which was admittedly the employer of the workman w.e.f. 07.02.2007 to 29.08.2008, claimed that the (L.C No.2333/2016) (Sh. Azad Singh Vs. M/s Bloom Public School) Page No.18 of pages 22 workman had voluntarily left its services w.e.f. 29.08.2008 after taking all his dues upto January 2008. Copy of wage register of the management no.2 in respect of the claimant, for the months of August 2007 to January 2008 Mark B was produced by management no.1, but its authencity and genuineness was challenged by the workman. Yet, original wage register of the relevant period was not produced by management no.2 to substantiate its plea of payment of claimed earned wages to the workman. Since, management no.2 has failed to prove the payment of earned wages to the workman as claimed by him, the workman is entitled to receive earned wages for 29 days as per last drawn wages of 5,175/- per month from management no.2.
21.3 Overtime Wages:-
The workman has claimed over time wages for the period from 02.12.2004 to 29.01.2008, but managements 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 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.2 during his entire tenure. 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 (L.C No.2333/2016) (Sh. Azad Singh Vs. M/s Bloom Public School) Page No.19 of pages 22 entitled to overtime allowance by implication of law. Since the entitlement of the workman to overtime is disputed by both managements, 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.
21.4 Bonus:-
The workman has claimed yearly bonus for the last three years @ 8.33% per annum. Entitlement of workman to bonus has not been disputed by management no.1 even though it claimed that the liability to pay bonus to the workman was that of management no.2. On the other hand, the entitlement of workman to claim bonus from it has been disputed by the management no.2 on the ground that the workman has worked for a very short period. Both management no.1 and 2 neither claimed that they had paid any bonus to the workman nor they produced any evidence to that effect.
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 posses 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 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 u/s. 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 (L.C No.2333/2016) (Sh. Azad Singh Vs. M/s Bloom Public School) Page No.20 of pages 22 settlement but he is entitled to receive the wages of the period in dispute. This is as per the terms of the employment.... Same may be the position in respect of the payment of minimum bonus...."
In the instant case, since the management no.2 was employer of the workman w.e.f. 07.02.2007 to 29.01.2008 and it is not the case of the management no.2 that the workman was not eligible for bonus on account working less than 30 days in accounting year 2007-2008, it is liable to pay bonus @ 8.33 % for the said period to the workman. Similarly, for the accounting year 2005-2006 and 2006- 2007 management no.1, being the employer, is liable to pay bonus @ 8.33 % for the said period to the workman. The workman accordingly is held entitled to bonus @ 8.33% per annum from his respective employer for last three year. 21.5 Leave Enacahsment:-
Lastly, the workman has claimed leave enacashment of annual leave @ 15 days per annum and unveiled festival leave @ 8 days per annum, which has been disputed by the managements 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 to their respective homes after school has remained unrebutted. Therefore, I hold that the the workman was not entitled to festival leaves as claimed by him.
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. It also lays down that any part of such unavailed leave shall be added to the privilege leave in respect of the succeeding period to which such person is entitled to, subject to maximum of three times the (L.C No.2333/2016) (Sh. Azad Singh Vs. M/s Bloom Public School) Page No.21 of pages 22 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 full wages for the period of such privilege leave as is due to him.
Since the workman had not completed 12 month's employment with management no.2, he is not entitled to any privilege leave for the period of his employment with management no.2 from 07.02.2007 to 29.01.2008.
Management no.1 was in possession of the best evidence to prove if the workman already availed off annual leaves 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 annual leaves. The workman is accordingly entitled to encash 45 days annual leave as per last drawn wages of 5,175 per month to be paid by management no.1.
22. Relief:-
In view of my finding on issue no.2, workman is held entitled to earned wages of Rs. 5,000/- ( for 29 days as per last drawn wages of 5,175 per month from management no.2), Bonus of Rs. 15,525/- ( @ 8.33.per annum as per last drawn wages of 5,175/- per month, out of which Rs. 10,350/- for the year 2005- 2006 and 2006-2007 to be paid by management no.1 and Rs.5,175/- for the year 2007-2008 to be paid by management no.2 ) and leave encashment of Rs.7,763/- ( for 45 days as per last drawn wages of 5,175/- per month), thereby a total amount of Rs.28,228 out of which Rs.18,113 to be paid by management no.1 and Rs.10,175/- to be Paid by management no.2. Ordered Accordingly.
23. 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
(L.C No.2333/2016) (Sh. Azad Singh Vs. M/s Bloom Public School) Page No.22 of pages 22