Delhi District Court
Sh. Sanjay Kumar vs M/S Top Security Ltd on 27 September, 2014
IN THE COURT OF SH. SANJEEV KUMAR
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER LABOUR COURT
KARKARDOOMA COURTS, DELHI.
LCA NO. 111/14
IN THE MATTER BETWEEN:
Sh. Sanjay Kumar
S/o. Sh. Kalu Lal
C/o Tops Security Employees Union (Regd.),
52C, Okhla Industrial Estate, PhaseIII,
New Delhi20 .........Workman
Versus
M/s Top Security Ltd.
B53, Shivalik Malviya Nagar,
New Delhi17 .....Management
DATE OF INSTITUTION : 29.01.2013
DATE OF ARGUMENTS : 27.08.2014
DATE OF ORDER
: 27.09.2014
ORDER
1. By this order I shall decide application u/s 33C(2) of the ID Act filed by the applicant/workman.
2. Brief facts as stated in the application are that he has been working with the management since 06.12.06 as security LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 1 out of 34 guard and his present wages is Rs. 8872/ per month which used to be transferred directly into his account. The management never gave salary slip. The management in furtherance of unfair labour practice used to deduct Rs. 175/ per month from the earned wages of each workman illegally and unjustifiably on account of alleged training charges; though management used to take training charges from its client. The aforesaid illegal practices has been started by the management from March, 2008 and thus a sum of Rs. 10150/ (175x 58) is due towards management.
3. Notice of the application was issued to the management. Management filed reply in which preliminary objection was taken by the management that the application is not maintainable as management is making deduction from the salary of the claimant legally and justifiably. It is stated that management is a security service provider which provide security personnel to various establishment, clients on contractual basis. The personnel engaged for the said purpose specially Security Guards, Gunmen and Supervisors need a proper and continues training to perform the work efficiently. Even as per 'Private Security Agencies (Regulation) Act, 2005' every private Security Agency has to ensure imparting of training and skills to its private security guards LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 2 out of 34 and supervisors and completion of the prescribed security training successfully is one of the eligibility to be employed as private security guard. Since training provide to the security guard is continuous training & an ongoing process, the training is conducted 34 times in a month. The duration of the training varies according to the design & module of the training program from 4 to 16 hours. Training is conducted by & under the expert guidance of the exservicemen and former police personnel and the security guard were provided certificate for the training under gone by them and with such certificate the person become eligible to be a security guard or supervisors and may join the job in the private security agency. For continuous training & updation, up gradation & keep up the security guards with the ever changing environment a nominal fees is being taken by the management. Even all persons have given an undertaking that they will participate in the training and will pay the fee of the training. Therefore, even if the management is taking a nominal amount from the personnel against the imparted training to them, is not illegal but valid and justified. Hence, the application is liable to be dismissed.
4. Further objection taken by the management is that the present claim filed u/s 33C(2) of ID Act is not maintainable as the LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 3 out of 34 claimant can claim relief Under Section 15 of the Payment of Wages Act 1936.
5. On merit contents of application is denied except para no.1 which is about salary and date of appointment of applicant/ workman. The management has denied that management is engaged in unfair labour practice and never gave the pay slips. It is also denied that the management is deducting any amount from the earned wages of the workmen illegally and unjustifiably. Accordingly, it was prayed that the application filed by the applicant is liable to be dismissed.
6. No rejoinder was filed by workman to the reply/W.S. of the management. From the pleading of parties, following issues were framed:
1. Whether the management is entitled to deduct the sum of Rs.175/?
2. Whether the claimant is entitled for relief as claimed in the application? OPW
3. Relief.
6. After framing of issues, case was fixed for workman evidence for 17.07.14, however, on that day itself Ld. AR for both LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 4 out of 34 parties have submitted that since it is undisputed facts that management was deducting Rs.175/per month from the salary of the claimant and only issue is that whether the workman is entitle to sought the relief claimed in an application u/s 33C (2) of ID Act or not or that management is entitle to deduct the said amount on the ground of providing training for which evidence is not required as both issues are legal issue, hence no evidence is required and they will not lead any evidence and will argue straight way.
7. Final arguments heard from Sh. Prabhakar, Ld. AR for workman and Sh. Atul Tripathi, Ld. AR for management.Issue No. 1 & 2
8. Since both issue no.1 and 2 are interconnected, therefore, I shall decide the same together. Ld. AR for management has argued that the relief sought in the application by the claimant that is computation of benefits of Rs. 175/ per month which according to applicant is illegal deduction cannot be claimed in an application u/s 33C(2) of ID. Act. He argued that proceeding u/s 33C(2) is in the nature of execution and only the computation of benefit which is granted in any settlement or award or where there is any existing right to claim benefits can be claim as LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 5 out of 34 proceeding u/s 33C (2) of the ID Act and since neither any award or settlement has been passed in favour of the workman/claimant nor he has any existing rights to claim the amount deducted by management, therefore, relied sought by workman cannot be claimed in an application u/s 33C(2) hence present application is not maintainable and liable to be dismissed. He further argued that if claimant want the said reliefs he should have approach either u/s 10 of the ID Act making it an industrial dispute or should have file application before prescribed authority as provided under the Payment of Wages Act. In support of his contention he has relied upon judgement Central Bank Of India Ltd. Vs P.S. Rajgopalan and another,1964 AIR SC 743, MCD Vs. Ganesh Razek & Anr., (1995) 1 SCC 235, Workman of MCD vs MCD,W.P(c) No. 2505/2007 DHC.
9. On the other hand Ld. AR for workman/applicant has argued that the relief sought by applicant can very much claim in the application u/s 33C (2) of the ID Act as any illegal deduction in the salary is violation of existing right of workman and thus, he can claim the said benefit. Hence, the application is maintainable.
He further argued that applicant has liberty to approach for relief LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 6 out of 34 against illegal deductions in salary to either prescribed authority provided under Payment of Wages Act or before Labour Court in an application u/s 33C(2) of ID.Act. In support of his contention he has relied upon Md. Ismile Vs. Presiding Officer Government Industrial Tribunalcumlabour courtJabalpur & Ors. FLR 1980 (40) 415
10. I have heard the arguments of both parties, and carefully gone through the record. Section 33C(2) of the I.D. Act provides that:
" Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government [within a period not exceeding three months] (2) [ provided that where the presiding officer of a Labour Court considers it necessary or expedient to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit."
11. From perusal of the section it is evident that an application u/s 33C (2) can be filed when an employee is entitle to LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 7 out of 34 received any money or for computation of benefit which is capable of being computed in term of money. In this case workman is claiming amount which according to him is illegally deducted by management from his salary thus same is due towards him. In "Central Inland Water Transport Corporation Ltd. v. The Workmen"AIR 1974 SUPREME COURT 1604 it is held that : "...11. The only question which arises for determination in this Court is whether the Labour Court had jurisdiction to adjudicate on the issues referred to it under Section 33C (2) of the Industrial Disputes Act. Subsection (2), which is part of Section 33C dealing with "the recovery of money due from an employer'' reads as follows:
"(2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that any be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government.'' It is now wellsettled 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 workmen from his employer, or if the workman is entitled to any benefit which is capable of being computed in term of money, the Labour Court proceeds to compute the LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 8 out of 34 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.
Rameswar, (1968) 1 SCR 140 = (AIR 1968 SC 218) it was reiterated that proceedings under Section 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 it to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between an Industrial workmen and his employer."
12. In "Namor Ali Choundhury v. Central Inland Water Transport Corporation Ltd." AIR 1978 SUPREME COURT 275 4. it is held by Supreme Court that : "In our judgment the High Court has committed an error in so narrowly interpreting S. 33C(2) of the Act. The said provision runs as follows :
"Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 9 out of 34 under this Act, be decided by such Labour Court as may be specified in this behalf by appropriate Government." There are two parts of the subsection as it stands after its amendment by Act 36 of 1964. The first part is concerned with the money claim simpliciter and the second part speaks about computation in terms of money of any benefit to which the workman is entitled. Although for appreciation of the point at issue there is no substantial difference between the two, we shall confine our discussion to the money claim only pure and simple. On a plain reading of the wordings of the Statute it would be found that where any workman is entitled to receive from employer any money and if any question arises as to the amount of money due, then the question may be decided by the Labour Court. The expression "if any question arises as to the amount of money due" embraces within its ambit any one or more of the following kinds of disputes : (1) Whether there is any settlement or award as alleged?
(2) Whether any workman is entitled to receive from the employer any money at all under any settlement or an award etc?
(3) If so, what will be the rate or quantum of such amount?
(4) Whether the amount claimed is due or not?
Broadly speaking, these will be the disputes which will be referable to the question as to the amount of money due. If the right to get the money on the basis of the settlement or the award is not established, no amount of money will be due. If it is established, then it has to be LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 10 out of 34 found out, albeit, it may be by mere calculation, as to what is the amount due. For finding it out, it is not necessary that there should be a dispute as to the amount of money due also.
The fourth kind of dispute which we have indicated above obviously and literally will be covered by the phrase, "amount of money due". A dispute as to all such questions or any of them would attract the provisions of S. 33C(2) of the Act and make the remedy available to the workman concerned."
13. As far as judgement "Central Bank of India Ltd. v. P. S. Rajagopalan"AIR 1964 SUPREME COURT 743 relied upon by Ld. ARM is concerned same goes against the management. In this case Hon,ble Supreme Court has held that:
19. "We have already noticed that in enacting S. 33C the legislature has deliberately omitted some words which occurred in S. 20(2) of the Industrial Disputes (Appellate Tribunal) Act, 1950. It is remarkable that similar words of limitation have been used in S. 33C(1) because S. 33C(1) deals with cases where any money is due under a settlement or an award or under the provisions of Chapter VA. It is thus clear that claims made under S. 33C(1), by itself can be only claims referable to the settlement, award, or the relevant provisions of Chapter VA. These words of limitations are not to be found in S. 33C(2) and to that extent, the scope of S. 33C(2) is undoubtedly wider than that of S. 33C(1). It is true that even in respect of the larger class LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 11 out of 34 of cases which fall under S. 33C(2) after the determination is made by the Labour Court the execution goes back again to S. 33C(1). That is why S. 33C(2) expressly provides that the amount so determined may be recovered as provided for in sub sec. (1). It is unnecessary in the present appeals either to state exhaustively or even to indicate broadly what other categories of claims can fall under S 33C(2).
There is no doubt that the three categories of claims mentioned in S. 33C(1) fall under S. 33C(2) and in that sense, S. 33C(2) can itself be deemed to be a kind of execution proceeding; but it is possible that claims not based on settlements, awards or made under the provisions of Chapter VA, may also be competent under S. 33C(2) and that may illustrate its wider scope....."
14. Thus from the aforesaid judgements it is evident that where applicant is claiming any amount is due to him from management he can claim the same in an application u/s 33C(2) even though no settlement or award has been passed in favour of workman or amount is not covered u/s VA or VB of ID. Act. As scope under section 33C(2) is much wider than u/s 33C (1).
15. Undoubtedly in Municipal Corporation of Delhi vs. Ganesh Razek & Anr., (1995) 1 SCC 235 relied upon by Ld. ARM Hon,ble High Court has held that back wages cannot be claimed in an application u/s 33C (2) unless granted in an award. Hon,ble Supreem Court held as under:
"12. The High Court has referred to some LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 12 out of 34 of these decisions but missed the true import thereof. The ratio of these decisions clearly indicates that 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 33 C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compare the benefit so adjudicated on that basis in exercise of its power under Section 33 C(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 required 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. In the case of State Bank of India vs. Ram Chandra Dubey & Ors. , (2001) 1 SCC 73, this Court held as under:
"7. When a reference is made to an Industrial Tribunal to adjudicate the question not only as to whether the termination of a workman is justified or not but to grant appropriate relief, it would consist of examination of the question whether the reinstatement should be with full or partial back wages or none. Such a question is one of fact depending upon the evidence to be produced before the Tribunal. If after the termination of the employment, the workman is gainfully employed elsewhere it is one of the factors to be considered in determining whether or not reinstatement should be with LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 13 out of 34 full back wages or with continuity of employment. Such questions can be appropriately examined only in a reference. When a reference is made under Section 10 of the Act, all incidental questions arising thereto can be determined by the Tribunal and in this particular case, a specific question has been referred to the Tribunal as to the nature of relief to be granted to the workmen.
8. The principles enunciated in the decisions referred by either side can be summed up as follows:
Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33 C(2) of the Act. The benefit sought to be enforced under Section 33 C(2) of the Act is necessarily a pre existing benefit or one flowing from a preexisting right. The difference between a preexisting right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 14 out of 34 proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages."
16. But since in this case issue is not grant of back wages but grant of money which has been according to management has been illegally deducted by management therefore said judgement is not applicable.
17. In another judgement relied upon by management i.e. Workman of MCD vs MCD WP(C) 2505/2007 dt. 12 May 2009 is concerned in that case issue was whether relief claimed by applicants i.e. liveries and stitching and washing allowances in an application u/s 33C(2) is maintainable and whether application can be rejected after framing a preliminary issue on the maintainability. The Hon,ble High Court dismissing the writ petition of workman has held that :
" 16. The courts and tribunals of limited jurisdiction while exercising their powers under any LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 15 out of 34 enactment or statute cannot assume any power by implication just because they feel that in the absence of such implied power, his jurisdiction under S. 33C(2) could be better exercised. If the legislature did not confer adequate powers on the specified authority under S. 33C(2), a more reasonable inference would be that the nature and scope of the powers under S. 33C(2) is very limited and the legislature was conscious of the fact that, for holding such a limited and narrow enquiry, it was unnecessary to confer powers invariably associated with formal and complicated enquiries of a judicial or quasi judicial character.
17. In Union of India v. Kankuben,(2006) 9 SCC 292, the Apex Court explained that whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33C(2) of the Act. The benefit sought to be enforced under Section 33C(2) of the Act is necessarily a preexisting benefit or one flowing from a preexisting right. The difference between a pre existing right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33 C(2) of the Act while the latter does not.
18. Furthermore, the contention of the counsel for the petitioner that the rates claimed by the petitioners were admitted rates on which payment was earlier made, is required to be considered along with other concomitant facts, which being disputed question of facts require adjudication under S.10, I.D. Act.
19. Thus, in view of the above discussion, it is manifest LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 16 out of 34 that the nature of power or the scope of enquiry under S. 33C is limited and pertains to a preexisting benefit or one flowing from a preexisting right.
20. In the present petitions, I do not feel that the tribunal committed any error in dismissing the applications filed by the petitioners under S. 33C (2). First of all the MCD raised the dispute to the entitlement of the petitioner's to liveries etc. But even if it be taken that the petitioner's had right to liveries and stitching and washing allowance as per the rules of the MCD, but still certain question of facts as to whether they were entitled to purchase them from open market and what cost should be allowed for such purchase, why did they raise this question of reimbursement after a lapse of 67 yrs. etc. and certainly are such questions cannot be answered by a court exercising execution jurisdiction. The said issues require adjudication on merits after formal enquiry, which can be gone into only under S. 10 of the ID Act.
21. The Labour Court in exercise of its powers under Section 33C(2) of the Act cannot enlarge the scope of the said provision by arrogating to itself the function of adjudicating the dispute relating to the claim of the nature made by the workmen, herein. The limitations placed on the Labour Court under Section 33C(2) of the Act are of such a nature which do not permit it to entertain a claim put forward by a workman in respect of a matter which is not based on an preexisting right and which can be adjudicated upon in an industrial dispute under Section 10 of the Act."
18. As stated above in the present case applicant/ workman is not seeking any benefits which workman is entitle but he is seeking money which is due to him on account of alleged LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 17 out of 34 illegal deduction from his wages thus in my view above said judgement is also not applicable to the present. Hence, in my view relief claimed by workman can be claimed in an application u/s 33C (2) of the ID. Act.
19. I do not find another contention of ARM that the workman had remedy to file complaint against alleged illegal deduction of amount from wages before the authority provided under section 15 of Payment of Wages Act hence he cannot seek the said remedy in an application u/s 33C(2) hence he can not seek the relief in an application u/s 33C (2) of the ID Act. Undoubtedly, the relief has been provided in section 15 of Payment of Wages Act in case of illegal deduction from wages by management. Undoubtedly, as provided in proviso of sub section 2 of section 15 of Act there is a limitation of 12 month in filing the complaint u/s 15 of the Payment of Wages Act which has already been expired. In my view workman can claim relief against illegal deduction in wages either in section 15 of Payment of wages Act or in 33C(2). However in case he seek relief in section 33C(2) in such event workman loss valuable right of getting compensation in the form of penalty imposed on management which could be ten time of amount LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 18 out of 34 illegally deducted though he escapes from period of limitation as there is no period of limitation to file an application u/s 33C(2) ID Act. In support of my argument I rely upon judgment Md. Ismile Vs. Presiding Officer, Labour Court, Jabalpur and Ors. FLR1980(40) 415 in this case the claimant/workman was appointed as (NMDC) I Surveyor in National Mineral Development Corporation in the pay scale of 230500/ after retirement from the service Madhya Pradesh Govt. Since his pension was not finalized by the state Government, Corporation fixed his adhoc pay in the pay scale of 180360/. As soon as his pension was fixed by Madhya Pradesh Govt. he requested for fixation of his pay in terms of appointment but since nothing was done by the National Medical Development Corporation, therefore, workman filed the application u/s 33C (2) of the ID Act for payment of differences in wages. The application was opposed by the NMDC on the ground that the application is not maintainable in section 33C(2) as petitioner got remedy u/s 15 of the Payment of Wages Act. The objection was sustained by Tribunal. However High Court of Madhya Pardesh held that the remedy provided under the Payment of Wages Act do not barred the workman to claim relief u/s 33C LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 19 out of 34 (2) of the ID Act. The relevant provision of judgement in para no. 8 is reproduced as below:
".... however, the Division Bench decision of this court in Laxman tulsiram Vs. Dayalal Meghji and Co. (supra) is the solitary decision which has taken a contrary view and has held that in view of section 22 of the Payment of Wages Act claim coul dbe entertained under Section 2( vi) and 15 of the Payment of Wages Act and not under section 33C(2) of the Industrial Disputes Act. This has been followed by another Division Bench decision in Managing Direor, N.C.D.C. Ltd. vs. G.C. Agarwal (Supra) with great respec we express out doubt about the correctness of the decision in Laxman Tulsiram Vs. Dayalal Meghji and Co. (Supra). The Supreme court in Shri Ambika Mills and co,. V. S.B. Bhatt (Supra) has only said that the matter whih lie within the jurisdiction of the authority under the Paymen tof Wages Act are excluded from the jurisdiction of the ordinary civil Courts i.e. claims arising out of the deducting or delay in payment of wages. The jurisdiction conferred on the authority is limited by Section 15 and it is excluded as prescribed by Section 22 i.e. there is bar of civil suit only and the provision cannot be read as to debar Labour Court u/s 33C(2) from entertaining such claim. The Supreme Court in application under Section 33C(2) may also include a claim which is not based on settlement, award or made under the provisions of Chapter VA as mentioned in Section 33C (1). the Supreme court in Bombay Gas Co. V. Gopal Bhiv (Supra) has upheld that order of the Labour Court allowing a similar claim LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 20 out of 34 under Section 33C(2) although such a claim was barred under Section 15 of the Payment of Wages Act there being a limitation of one year under that Act but the claim was preferred after 7 years.
Therefore, it is clear that the decision of the Division Bench of this Court in Laxman Tulsiram v. Dayalal Meghji and Co (Supra) is not only contrary to the trend of judicial decisions on the point in question but it also goes contrary to the decisions of the Supreme Court in cases mentioned above. Accordingly, we overruled the decisions of this court in Laxman Tulsiram V. Dayalal Meghji and Co. (Supra) and Managing Director, National Coal Development Corporation Ltd. v. G.C. Agrawal (supra) ...."
19. Hence, in these circumstances, I held that the relief claimed in the application by the applicant/workman can be sought in the u/s 33C (2) of the ID Act despite the fact that same relief was available to workman in Payment of wages Act.
20. It is undisputed fact that management started making deduction of Rs.175/ from the salary of workman from march, 2008 though the workman was working with the management prior to March, 2008 and thus if it proved that said deduction is illegal then it is violation of existing right of the workman to get wages which was paid to him prior to illegal deduction as to get full wages is a right of workers. Therefore, I reject the contention of LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 21 out of 34 Ld. ARM that relief sought in the application cannot be claim in the application and hence application u/s 33C(2) ID Act is not maintainable.
21. What deduction are permissible from the salary of workman is provided u/s 7 of Payment of Wages Act,1936 which are as follows:
7. Deductions which may be made from wages.
(1) Notwithstanding the provisions of [the Railways Act, 1989 (24 of 1989)] the wages of an employed person shall be paid to him without deductions of any kind except those authorised by or under this Act.
[Explanation I].--Every payment made by the employed person to the employer or his agent shall, for the purposes of this Act, be deemed to be a deduction from wages.
Explanation II.--Any loss of wages resulting from the imposition, for good and sufficient cause, upon a person employed of any of the following penalties, namely:--
(i)the withholding of increment or promotion (including the stoppage of increment at an efficiency bar);
(ii) the reduction to a lower post or time scale or to a lower stage in a time scale;
(iii) suspension;
shall not be deemed to be a deduction from wages in any case where the rules framed by the employer for the imposition of any such penalty are in conformity with the requirements, if any, which LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 22 out of 34 may be specified in this behalf by the State Government by notification in the Official Gazette.] (2) Deductions from the wages of an employed person shall be made only in accordance with the provisions of this Act, and may be of the following kinds only, namely:--
(a) fines;
(b) deductions for absence from duty; etc (b) deductions for absence from duty;
(c) deductions for damage to or loss of goods expressly entrusted to the employed person for custody, or for loss of money for which he is required to account, where such damage or loss is directly attributable to his neglect or default;
[(d)deductions for houseaccommodation supplied by the employer or by Government or any housing board set up under any law for the time being in force (whether the Government or the board is the employer or not) or any other authority engaged in the business of subsidising houseaccommodation which may be specified in this behalf by the State Government by notification in the Official Gazette;
(e) deductions for such amenities and services supplied by the employer as the [***] State Government [or any officer specified by it in this behalf] may, by general or special order, authorise; Explanation The word "services" in [this clause] does not include the supply of tools and raw materials required for the purposes of employment; [(f)deductions for recovery of advances of whatever nature (including advances for travelling allowance or conveyance allowance), and the interest due in respect thereof, or for adjustment of overpayments LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 23 out of 34 of wages;
(ff) deductions for recovery of loans made from any fund constituted for the welfare of labour in accordance with the rules approved by the State Government, and the interest due in respect thereof; (fff)deductions for recovery of loans granted for housebuilding or other purposes approved by the State Government, and the interest due in respect thereof;
(g) deductions of incometax payable by the employed person;
(h) deductions required to be made by order of a Court or other authority competent to make such order;
(i) deductions for subscriptions to, and for repayment of advances from any provident fund to which the Provident Funds Act, 1925 (19 of 1925), applies or any recognized provident fund as defined [in clause (38) of section 2 of the Income tax Act, 1961 (43 of 1961)] or any provident fund approved in this behalf by [the appropriate Government], during the continuance of such approval;
(j) deductions for payments to cooperative societies as approved by [the appropriate Government] [or any officer specified by it in this behalf] or to a scheme of insurance maintained by the Indian Post Office;
[(k) deductions, made with the written authorisation of the person employed for payment of any premium on his life insurance policy to the Life Insurance Corporation of India established under the Life Insurance Corporation Act, 1956 (31 of 1956), or for the purchase of securities of the LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 24 out of 34 Government of India or of any State Government or for being deposited in any Post Office Savings Bank in furtherance of any savings scheme of any such Government;] [(kk) deductions made, with the written authorisation of the employed person, for the payment of his contribution to any fund constituted by the employer or a trade union registered under the Trade Unions Act, 1926 (16 of 1926), for the welfare of the employed persons or the members of their families, or both, and approved by 10[the appropriate Government] or any officer specified by it in this behalf, during the continuance of such approval;
(kkk) deductions made, with the written authorisation of the employed person, for payment of the fees payable by him for the membership of any trade union registered under the Trade Unions Act, 1926 (16 of 1926);] [(l) deductions, for payment of insurance premia on Fidelity Guarantee Bonds; tc" 1[(l) deductions, for payment of insurance premia on Fidelity Guarantee Bonds;
(m) deductions for recovery of losses sustained by a railway administration on account of acceptance by the employed person of counterfeit or base coins or mutilated or forged currency notes;
(n) deductions for recovery of losses sustained by a railway administration on account of the failure of the employed person to invoice, to bill, to collect or to account for the appropriate charges due to that administration, whether in respect of fares, freight, demurrage, wharfage and cranage or in respect of sale of food in catering establishments or in respect of sale of commodities in grain shops or otherwise; LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 25 out of 34
(o) deductions for recovery of losses sustained by a railway administration on account of any rebates or refunds incorrectly granted by the employed person where such loss is directly attributable to his neglect or default;] 34 [(p) deductions, made with the written authorisation of the employed person, for contribution to the Prime Minister's National Relief Fund or to such other Fund as the Central Government may, by notification in the Official Gazette, specify;
35[(q) deductions for contributions to any insurance scheme framed by the Central Government for the benefit of its employees. 36 [(3) Notwithstanding anything contained in this Act, the total amount of deductions which may be made under subsection (2) in any wageperiod from the wages of any employed person shall not exceed--
(i) in cases where such deductions are wholly or partly made for payments to cooperative societies under clause (j) of subsection (2), seventyfive per cent. of such wages, and
(ii) in any other case, fifty per cent. of such wages:
Provided that where the total deductions authorised under subsection (2) exceed seventyfive per cent. or, as the case may be, fifty per cent. of the wages, the excess may be recovered in such manner as may be prescribed.
(4) Nothing contained in this section shall be construed as precluding the employer from recovering from the wages of the employed person or otherwise any amount payable by such person under any law for the time being in force other LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 26 out of 34 than37 [the Railways Act, 1989 (24 of 1989)].
22. As discussed above management has made deduction of Rs.175/ per month from the salary of the workman/applicant and said deduction does not fall in any of the head in which management can make deduction as per section 7 of Payment Of Wages Act, hence, onus is upon the management to proved that deduction made by it from the salary is not illegal.
23. Ld. AR of management has contended since management is providing training to the applicant as per the mandate of the section 10 (d) of the Private Security Agency (Regulation) Act, 2005 and therefore management is entitle to deduct the amount of Rs. 175/ from salary of workman to meet the expenses of training. Further the ground taken by the management is that the workman has agreed to the said deductions. Therefore now workman cannot challenged the deduction.
24. On the other hand Ld. AR for workman has argued that Private Security Agency (Regulation) Act no where impose obligation on the workman to get training but it impose obligation on the management to employ only personnel as security guard who has completed training successfully or to provide training to LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 27 out of 34 personnel before employing them. Therefore, if any expenses is to be made by the management on providing the training to the security guards, same is to be bear by the management and not by the workman. Hence, any deduction made by the management on the ground of providing training is illegal and unjustified as same is not permissible in view of section 7 of the payment of wages Act. So far as other contention that the workman has consented to the said deduction of the amount from his salary and therefore cannot challenge the deduction. Ld AR has argued that no such undertaking has been given but even it is presume that the undertaking has been given, same is given under the pressure of management as workman has no power equal to the management. Hence, the said undertaking given by the workman which allow deduction beyond section 7 of payment of wages Act is not valid. Hence, in these circumstances, the deduction of Rs.175/ monthly from salary of applicant made by the management is illegal.
25. I have considered the arguments and gone through the record. The management in the preliminary objection no.2 has taken the ground for deducting the amount of Rs.175/ from the salary of the workman/claimant that management is a security service provider which provide security personnel to various LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 28 out of 34 establishment, clients on contractual basis. The personnel engaged for the said purpose specially Security Guards, Gunmen and Supervisors need a proper and continues training to perform the work efficiently. Even in Private Security Agencies Regulation Act, 2005 every private Security Agency has to ensure imparting of training and skills to its private security guards and supervisors and completion of the prescribed security training successfully is one of the eligibility to be a private security guard. Since training provided to the security guard is continuous training & an ongoing process, the training is conducted 34 times in a month. The duration of the training varies according to the design & module of the training program from 4 to 16 hours. Training is conducted by & under the expert guidance of the exservicemen and former police personnel and the security guard were provided certificate for the training under gone by them and with such certificate the person become eligible to be a security guard or supervisors and may join the job in the private security agency. For continuous training & updation, up gradation & keep up the security guards with the ever changing environment a nominal fees is being taken by the management. Hence the deduction is not unjustified or illegal.
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26. The Private Security Agency Regulation Act, 2005 has been passed on 23rd June, 2005 and same has come in force on 15.03.06. Hence the Act has been passed during the employment of workman. The object of the Act as appeared from statement of object and reason is regulate the functioning of securities Agencies. Section 9(2) of the Act provide that:
9(2) "Every private security agency shall ensure imparting of such training and skills to its private security guards and supervisors as may be prescribed:
Provided that the person carrying on the business of private security agency, before the commencement of this Act, shall ensure the required training to its security guards and supervisors within a period of one year from the date of such commencement......."
Thus from the section 9 (2) of the ID Act make it mandatory to security agency to provide training to its security guards, supervisors.
27. Further section 10 (d) of the above Act imposed obligation on the security agency not to employ any person as security guard or supervisor unless he has competed training.
28. The rule 5 of The Private Security Agencies Central LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 30 out of 34 Model Rules, 2006 provide what kind of training is to be given to the security guards
29. I did not find any provision in the above Act or rule wherein it is mentioned that the management can charge any money from the security guards or supervisor for providing training. The Act only put obligation upon security agency to provide training to the security guard and supervisor. In my view security agency are free to charge money from those establishment who engaged security guards because they are getting trained personnel to provide security to their establishments. Why the workers be punished because they have to take training rather they should be rewarded for taking training because now they are trained security guard and would render better service. In my view Security agency have no right to deduct any money from the salary of Security guards even if security guard is benefited from training as they got training certificate or it increase their employability. They are not coming to a training school but employer is giving training because it is mandatory for him. Section 7 of the Payment of Wages Act forbid any other deduction from the salary of an employee except those provided in that section. Management has failed to led any LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 31 out of 34 evidence or provide any statutory law which authorize him to make deduction on the ground of providing training.
30. As far as another contention of Ld. AR for management that workman has consented to the deduction and given undertaking is concerned, no such undertaking has been produced by him. His contention that since no rejoinder has been filed by workman therefore content of WS/reply remained un rebutted is not tenable because rejoinder is not part of pleading.
Onus was on the management to proved that workman has consented but management did not choose to led any evidence. Hence management failed to proved that workman consented for deduction.
31. Even otherwise I am fully agree with the contention of the Ld. AR for workman even if worker has given consent for the deduction of the Rs.175/ from his salary that consent is in valid as they might have given the said undertaking under the pressure of losing the job.
32. Further there cannot be any consent against the statue. As stated above section 7 of Payment of Wages Act provide deductions which could be made from an employee salary any deduction beyond the said deduction no deduction can be made LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 32 out of 34 even by consent of employee as same will be violative of section 7 of above Act and thus will be illegal. Workman has no bargaining power and therefore, management can misuse to make illegal deductions if it is allowed to make deduction with the consent of workman and even in such situation will give salary less than minimum wages. It will entirely defeat the object of Payment of Wages Act, Minimum Wages Act or Bonded Labour Abolition Act which has been passed to save the workers from exploitation of management. Hence, in these circumstances, I held that management has failed to proved that it is entitle to deduct any amount from the wages of worker on the ground of providing training, and same is legal or justified, where as workman has been able to prove that amount of Rs.175/ per month was illegally deducted from his salary and thus he is entitle to recover the same from management. Therefore, in view of the aforesaid discussion, issue no.1 and 2 decided accordingly in favour of the workman and against the management.
Relief
33. In view of my finding of issue no.1 and 2 I held that the claimant is entitled for the amount which has been illegally LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 33 out of 34 deducted from his salary. Since it is undisputed fact that management has deducted Rs. 175/ per month from date of his joining from March, 2008. As per applicant 58 months deduction was made and the amount comes to Rs.10150/ which has not been disputed by management. Therefore, I grant the applicant/workman an amount of Rs. 10150/ (Ten Thousand One Hundred Fifty Only). Hence, present application is thus allowed. Copy of the order be sent to the concerned government.
File be consigned to record room.
Announced in the Open Court on 27th September, 2014 (SANJEEV KUMAR) Presiding Officer, Labour Court, Karkardooma Courts, Delhi.
LCA No.111/14 Sanjay Kumar Vs. Tops Security Ltd. Page no. 34 out of 34