Delhi District Court
Sh. Amar 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.DLCT-13-000244-2008
LC No.2332/2016
Sh. Amar Singh, S/o Sh. Hotilal,
R/o C-97, Rangpuri Pahadi,
New Delhi - 110070
Through Rajdhani Audyogik General
Workers Union, Office-C 36A,
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.
(Impleaded as management no.2 pursuant to the order dated 09.08.2010) ...Management.
Date of Institution of the 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 workman Sh. Amar Singh, S/o Sh. Hoti Lal against M/s Bloom Public School (hereinafter referred to as management no.1). Brief facts relevant for the adjudication of the present application as alleged by the workman are that on 01.10.2000 he was appointed as a school driver on the last drawn salary of Rs.6,500/- 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. The management no.1 deliberately did not provide the labour facilities like attendance card, slip of EPF, ESIC card etc., despite his repeated (L.C No.2332/2016) (Sh. Amar Singh Vs. M/s Bloom Public School) Page No.1 of pages 20 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. It was also stated that when he raised a demand for loan and management did not give loan to him, rather, took his signatures on EPF form and took out money from his EPF account. Further the management kept on taking 12 to 14 hours work daily from him, which is on the record of management and it never paid any amount towards the overtime for the extra work of 4 to 6 hours daily performed by him. He further averred that at the time of appointment, management had assured him of yearly bonus but did not give bonus to him, despite his oral demand. On 22.11.2006, 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. The workman wrote a complaint to the Labour Office in this regard and during the proceeding Mr. Manohan Sharma appeared on behalf of management, but to no avail. Further, he also sent a Demand Notice to the management through courier but despite service, the management did not reply to the said notice. The workman also wrote a police complaint against the management. It was also stated that he filed a claim before the Labour Conciliation Officer but despite best efforts management neither paid the back wages etc. nor reinstated him in service. 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.6,43,342.70/-, as per calculation chart below:-
Sl. No. Particulars Amount 1 Arrear of earned wages:-
(i). according to last drawn wages of (L.C No.2332/2016) (Sh. Amar Singh Vs. M/s Bloom Public School) Page No.2 of pages 20 Rs.6,500/- for the month of October Rs.6,500/-
2006.
(ii). according to last drawn wages of Rs.6,500/- from 01.11.2006 to Rs.4,766.30/-
22.11.2006.
2 Outstanding overtime wages :-
A. In October 2006 (excluding weekly holidays), by doing 4 hours daily overtime, 100 hours work have been done in 25 days. According to last drawn wages of Rs.6,500/- and per day wages of Rs.35.71/-, single wages comes to Rs.3,570/-, whose double is Rs.7,140/-, as per rules. Rs.7,140/-
B. From 01.11.2006 to 22.11.2006, 76 hours overtime have been done.
Single wages comes to Rs.2,713.96/-, whose double is Rs.5,427.92/-, as per rules. Rs.5,427.92/-
3. According to above, overtime money is to be taken as under:-
Firstly from the date of appointment 01.10.2000 to 30.09.2006, excluding weekly and national holidays, according to 306 days per year, by doing 4 or 6 hours daily overtime, in the 6 years more than 7344 hours work have been performed, the wages of which has not been given by the management. According to last drawn wages of Rs.6,500/- and per day wages of Rs.35.71/-, single wages comes to Rs.2,62,254.24/-, whose double is Rs.5,24,508.48/-, as per rules. Rs.5,24,508.48/- 4 Arrear of overtime work performed during the yearly festival holidays :-
According to 23 days every year for the last six year (01.10.2000 to 22.11.2006), on the last drawn wages of Rs.6,500/-, 6 years, single wages (L.C No.2332/2016) (Sh. Amar Singh Vs. M/s Bloom Public School) Page No.3 of pages 20 comes to Rs.34,500/-, whose double is Rs.69,000/-. Rs.69,000/-
5 Yearly outstanding - festival holidays money:-
Every year 15+12+03 = 30 days should have been allowed, out of which only 7 days casual are allowed.
According to 23 days every year, for the last 6 years, on the last drawn wages of Rs.6,500/-, Rs.34,500/- is to Rs.34,500/- be taken.
6 Bonus:-
Every year according to 8.33 %, for the last four years, on the last drawn wages of Rs.6,500/-, Rs.26,000/- is to be taken. Rs.26,000/-
Rs.6,43,342.70/-
2. Notice of the application was sent to the management no.1 who had appeared and contested the claim of the workman by filing its Written Statement, wherein it claimed that no employer-employee relationship exists or has ever existed between the workman and the Management no.1 and hence the workman does not fall under the scope and ambit of the definition of 'workman' under the Industrial Disputes Act, 1947 vis-à-vis the Management. Further the management no.1 received the notice dated 28.11.2006 from the Labour Inspector vis-a-vis alleged illegal termination of the workman and on being informed that the workman has never been employed by the management no.1, Labour Inspector issued a notice dated 15.02.2007 and directed the employer of the workman, M/s. A2Z Maintenance & Engg. Services Pvt. Ltd (hereinafter referred to as management no.2), upon which, M/s. A2Z Maintenance & Engg. Services Pvt. Ltd./ management no.2 filed their reply to the claim raised by the workman, wherein it clearly admitted that the workman has been their employee and prior to that he was working with International Security. Moreover, the workman was also (L.C No.2332/2016) (Sh. Amar Singh Vs. M/s Bloom Public School) Page No.4 of pages 20 offered to resume the services his employer M/s. A2Z Maintenance & Engg. Services Pvt. Ltd. / management no.2 but he purposely did not avail offer of his employer. It was further stated that 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 and the management no.1 also obtained the necessary registration, as required under the Contract Labour (Regulation & Abolition) Act, 1970. It was also stated that the workman is an employee of M/s. A2Z Maintenance & Engg. Services Pvt. Ltd. / management no.2 and was working under the supervision and direct control of the said contractor. Further the said contractor was issued a letter dated 15.02.2007 by the Labour Officer, wherein the contractor was informed about the dispute raised by the workman and the stand taken by the management no.1 and was asked to file their reply on 07.03.2007. Accordingly, the contractor filed a detailed reply dated 06.03.2007 admitting therein that the workman had joined their services on 01.06.2005 and that the workman was earlier working with M/s International Security. The contractor had also stated that the said workman had worked with their organization since 01.06.2005 till 30.09.2005 and thereafter continuously absented himself. The said contractor had also given the provident fund A/c number of the workman i.e. DC/25339/845, which was also reflected in the Annual Returns filed by the said contractor in the year 2005-2006. 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 categorically denied that the workman was working continuously with the management no.1 since 1.10.2000. It also denied (L.C No.2332/2016) (Sh. Amar Singh Vs. M/s Bloom Public School) Page No.5 of pages 20 that the workman used to work for a period of 12 hours. It claimed that the 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 and the claim for overtime is concocted, false and hence denied. It was further stated that on making enquiries from his employer/management no.2, the management no.1has been informed that the provident Fund, ESP etc. of the workman was being deposited by his said employer in the code numbers allotted to it by the respective authorities, Therefore, his employer was granting him all the benefits under the applicable labour laws. It also denied that manager Sh. Manmohan Sharma had taken any signature of the workman on any papers or that on the basis of said papers, withdrew the provident fund amount of past service of the workman. It also denied that workman has been terminated from duty by the management no.1 on 22.11.2006 or on any other date.
3. 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.
4. 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.
5. 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 his cross examination was deferred. On 22.08.2009, an application for impleading M/s A2Z Maintenance & Engg. Services Pvt. Ltd. as a party was also filed on behalf of management M/s Bloom Public School, which was allowed (L.C No.2332/2016) (Sh. Amar Singh Vs. M/s Bloom Public School) Page No.6 of pages 20 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. Thereafter, 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.
6. In its Written Statement, management no.2 claimed that workman has never worked under the said management and that he was infact an employee of the management no.1 and had filed the claim petition vide ID No. 18/2008 against the management no.1 and that the 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 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 further stated that 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.
7. In rejoinder to the Written Statement of the management no.2, all the averments of the said management were denied and that of Statement of claim were reaffirmed by the 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 as (L.C No.2332/2016) (Sh. Amar Singh Vs. M/s Bloom Public School) Page No.7 of pages 20 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 10.09.2014, workman was cross examined by the management no.1. Since none was present on behalf of management no.2 on 10.09.2014, management no.2 was proceeded against exparte and then on the statement of workman, WE was closed and case was fixed for leading of management evidence. On 18.11.2014, management no.1 examined-in- chief Sh. Manmohan Sharma, its Administrative Officer as M1W1 and his cross examination was deferred on that day. On 23.12.2014, MW-1 Mr. Manmohan Sharma was partly cross examined and his further cross examination was deferred. On 24.03.2015, an application was filed on behalf of management no.2 for setting aside of order dated 10.09.2014, vide which it was proceeded against exparte, and the said application was allowed by Ld. Predecessor of this court vide order dated 02.06.2015 and management no.2 was permitted to cross examine the workman. Accordingly, on 06.10.2015, WW1/workman was cross examined by Ld. AR for the management no.2 and then WE was closed and case was fixed for remaining cross examination of MW-1 Mr. Manmohan Singh and also for filing of affidavits of witnesses of management no.2. Thereafter, on 18.03.2016, affidavit of Sh. Suresh Kumar Pradhan was filed on behalf of management no.2 and he was examined-in-chief as M2W1 and his cross examination was deferred. Thereafter, MW-1 was further cross examined on 02.02.2016 and 29.08.2016 and discharged and case was fixed for cross examination of management no.2 witness Sh. Suresh Kumar Pradhan. Thereafter on 02.06.2017, M2W1 Sh. Suresh Kumar Pradhan was further cross examined and discharged and case was fixed for remaining ME. On 11.07.2017, M1W1 Sh. Manmohan Sharma was further cross examined and discharged and case was fixed on 21.07.2017 for further proceedings / remaining ME, if any. 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 (L.C No.2332/2016) (Sh. Amar Singh Vs. M/s Bloom Public School) Page No.8 of pages 20 management no.1. Also, it was submitted on behalf of management no.2 that they do not wish to lead any further evidence. Thereafter, on 18.08.2017, management no.1's witnesses Sh. Kamal Malhotra (the then Senior SSA, EPFO, Dwarka, New Delhi) and Sh. Sandeep Kumar (the then Senior SSA, EPFO, Gurgaon, Haryana) were examined, cross examined and discharged as M1W2 and M1W3 respectively. On 18.08.2017, one more witness i.e. Sh. Ashok Kumar (the then Labour Inspector, Labour Office, Hari Nagar, Distt. South West, Delhi) was examined as M1W4 and then 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. On 19.09.2017, management no.2 witness M2W1 Sh. Suresh Kumar Pradhan was cross examined on behalf of management no.1 and case was fixed for ME, if any/final arguments on 06.10.2017. Vide order dated 06.10.2017, Management Evidence was closed and case was fixed for final arguments.
9. Management no.1 in support of its defence examined three witnesses i.e. Sh. Manmohan Sharma, Sh. Kamal Malhotra (the then Senior SSA, EPFO, Dwarka, New Delhi) and Sh. Sandeep Kumar (the then Senior SSA, EPFO, Gurgaon, Haryana) as M1W1, M1W2 and M1W3 respectively.
10. 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 application for employment submitted by workman with the management no.2 Ex.M1/MW1/1;
(ii). Copies of EPF Contribution Card for the year 2003-04 and 2004-05 in respect of the claimant, as submitted by his previous employer M/s International Security of India Mark A & B respectively;
(L.C No.2332/2016) (Sh. Amar Singh Vs. M/s Bloom Public School) Page No.9 of pages 20
(iii). Copy of EPF statement for the year 2004-05 in respect of the claimant, as submitted by his previous employer M/s International Security of India Mark C;
(iv). Photocopies of Written Statement of the management no.2 filed during the conciliation proceedings before the ALC, Pratap Nagar, New Delhi Mark D;
(v). Copy of registration certificate in favour of the management no.1 issued under Contract Labour Act showing the management no.2 as its contractors Mark E; and
(vi). Copy of license certificate in favour of the management no.2 issued under Contract Labour Act showing management no.1 as its principal employer Mark F. 10.1 M1W1 was cross examined by Ld. AR for the workman and discharged.
11. M1W2 Sh. Kamal Malhotra (the then Senior SSA, EPFO, Dwarka, New Delhi) was a summoned witness, who produced letter dated 05.08.2005 issued by International Security of India having EPF Code No.DL-12006 vide Ex.M1W2/1 and the statement of EFP account in the name of Sh. Amar Singh S/o Sh. Hoti Lal having EPF Code No.DL/12006/738 showing withdrawal of PF accumulation deposited by his employer M/s International Security of India and showing date of his leaving service of International Security of India on 31.02.2005 vide Ex.M1W2/2.
11.1 He was cross examined by Ld. AR for workman and discharged.
12. M1W3 Sh. Sandeep Kumar, who was a summoned witness from the office of EPFO, Gurgaon, Haryana, produced before the court certified document showing establishment details of M/s A2Z Infra Engineering Ltd., B-38, Institutional Area, Sector-32, Gurgaon, Haryana having EPF Code No.GGN/25339 Ex.M1W3/1; certified copy of statement of account bearing No.GGN/25339/845 pertaining to Sh. Amar Singh for the period from 2010-11 to 2017-18 showing (L.C No.2332/2016) (Sh. Amar Singh Vs. M/s Bloom Public School) Page No.10 of pages 20 accumulation of EPF contributions in the name of said member deposited by M/s A2Z Infa Engg. Ltd. Ex.M1W3/2 and certified copies of statement of account bearing no.GGN/25339/829 in the name of Sh. Jagdish Chand, A/c No.GGN/25339/847 in the name of Tilak Raj, A/c No.GG/25339/848 in the name of Sh. Satish showing date of joining by these three members in the EPF Code No.GGN/25339 in the name of M/s A2Z Infa Engg. Ltd. as 01.06.2005 Ex.M1W3/3 (colly).
12.1 The said witness was cross examined by Ld. AR for workman as well as by Ld. AR for the management and discharged.
13. M1W4 Sh. Ashok Kumar (the then Labour Inspector, Labour Office, Hari Nagar, Distt. South West, Delhi) deposed that summoned record could not be produced as same pertains to very old period and is not traceable and filed a letter in this respect, signed by the Assistant Labour Commissioner, District South West vide Ex.M1W4/1.
14. 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, and also relied upon a document i.e. copy of license certificate bearing No.CLA/PE/011/DLC/SW/06 dated 04.04.2006 Mark A. 14.1 He was cross examined by Ld. AR for workman as well as by Ld. AR for the management no.1 and discharged.
15. Thereafter, final arguments were advanced by Ld. ARs for the parties. I have given thoughtful consideration to the submissions of the parties and perused the record carefully.
16. My issue wise findings are as follows:-
17. Issue No.1:-
(i) Whether application of the claimant is not
maintainable? (OPM)
17.1 The maintainability of the present application u/s. 33 C(2) of the Act has
(L.C No.2332/2016) (Sh. Amar Singh Vs. M/s Bloom Public School) Page No.11 of pages 20
been challenged by both the managements.
17.2 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.
17.3 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 01.10.2000 till his alleged termination on 22.11.2006, whereas he was employee of management no.2 only for a limited period of 01.06.2005 to 30.09.2005. 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 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. 17.4 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 :-
(L.C No.2332/2016) (Sh. Amar Singh Vs. M/s Bloom Public School) Page No.12 of pages 20 "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 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 (L.C No.2332/2016) (Sh. Amar Singh Vs. M/s Bloom Public School) Page No.13 of pages 20 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."
17.5 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 (L.C No.2332/2016) (Sh. Amar Singh Vs. M/s Bloom Public School) Page No.14 of pages 20 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."
17.6 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. 01.10.2000 as a Driver continuously till the date of his alleged termination of services on 22.11.2006. Management no.1 has denied any kind of employer-employee relationship with the workman for any period whatsoever and has stated that workman was initially an employee of independent contractor M/s International Sercurity of India and subsequently joined 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 it has admitted the relationship of employer-employee with the workman for the brief period of 01.06.2005 to 30.09.2005 and contended that service of workman was never (L.C No.2332/2016) (Sh. Amar Singh Vs. M/s Bloom Public School) Page No.15 of pages 20 terminated by it, rather the workman voluntarily left the services of management no.2 after 30.09.2005 while 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.
17.7 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 LIR No.3745/2016 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 against the workman. Since, it has been adjudicated that there was no relationship of employer and employee between the workman and management no.1, the present application of the workman is not maintainable against management no.1. However, considering that the management no.2 has admitted its relationship with workman as employer and employee and it has been adjudicated that the duration of such relationship was for a period from 01.06.2005 to 30.09.2005, the present application is maintainable only in respect of management no.2 for the benefits/ entitlement claimed for the limited period of employment admitted by it.
17.8 The issue is decided accordingly.
18. Issue no.2:-
To what amount, if any, the claimant is entitled to be paid by the management?
18.1 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.2 for the period from 01.06.2005 to 30.09.2005 and if so, to what amount.
18.2 Earned Wages:-
The workman has claimed earned wages for the period for the period (L.C No.2332/2016) (Sh. Amar Singh Vs. M/s Bloom Public School) Page No.16 of pages 20 from 01.10.2006 to 22.11.2006. As it has been adjudicated that the workman was employee of management no.2 only for the period from 01.06.2005 to 30.09.2005, he is not entitled to any earned wages for the period 01.10.2006 to 22.11.2006.
18.3 Overtime Wages:-
The workman has claimed over time wages for the period from 01.10.2006 to 22.11.2006, 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 tenure with it from 01.06.2005 to 30.09.2005. 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.2 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. 18.4 Bonus:-
(L.C No.2332/2016) (Sh. Amar Singh Vs. M/s Bloom Public School) Page No.17 of pages 20 The workman has claimed yearly bonus for the last four years @ 8.33% per annum, but the claim to bonus has been disputed by the management no.2 on the ground that the workman has worked for a very short period and was not entitled to any bonus.
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 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 last drawn wages of Rs.6,500/- for the period 01.06.2005 to 30.09.2005 from management no.2.
18.5 Leave Enacahsment:-
Lastly, the workman has claimed leave enacashment of annual leave @ (L.C No.2332/2016) (Sh. Amar Singh Vs. M/s Bloom Public School) Page No.18 of pages 20 15 + 12 + 3 = 30 days per annum for last six years, which has been disputed by the management no.2 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. 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 and leave not less than 5 days after completion of 4 months of continuous employment. It also lays down that any part of such un-availed 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 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 annual leaves. The workman is accordingly entitled to encash the same. The workman had worked for the period 01.06.2005 to 30.09.2005 with management no.2 and consequently had completed 4 months of continuous service with management no.2. Therefore, workman is held entitled to encashment of 5 days of annual leave at the last drawn wages of Rs.6,500/- per month.
(L.C No.2332/2016) (Sh. Amar Singh Vs. M/s Bloom Public School) Page No.19 of pages 20
19. Relief:-
In view of my finding on issue no.2, workman is held entitled to Bonus of Rs.2,167/- ( for the period of 01.06.2005 to 30.09.2005 @ 8.33 % per annum as per last drawn wages of Rs.6,500/- per month) and leave encashment of Rs.1084/- ( for 5 days as per last drawn wages of Rs.6,500/- per month), thereby a total amount of Rs.3,251/- from management no.2. Ordered Accordingly.
20. 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.2332/2016) (Sh. Amar Singh Vs. M/s Bloom Public School) Page No.20 of pages 20