Delhi District CourtThe Management Of vs . on 21 January, 2010IN THE COURT OF MS. RENU BHATNAGAR
       PRESIDING OFFICER LABOUR COURT­X
           KARKARDOOMA COURTS, DELHI.


                                                LCA No. : 49/09
                    Date of Institution of the case : 13.12.1995
               Date on which reserved for Order : 21.01.2010
                   Date on which Order is passed : 21.01.2010


             Between
      1.       The Management of 
              State Trading Corporation of India
            Jawahar Vyapar Bhawan, Janpath
                  New Delhi.
                           &
         2.       M/s Vanguard Detective & Fire Services
                  C­ 13, 2 FS Apartment
                   Mayur Vihar
                  Delhi ­110099    
                         Vs.
                    Its workmen 
          1.       Ram Chander
                    S/o Sh. Munshi
                    R/o H. No­ 217, Pocket 6­I
                    Rohini, Sector 2
                    New Delhi­ 110085.

            2.      Om Prakash 
                     S/o Sh. Harnarayan Singh
                     Village & P.O. Nonad
                      Distt. Rohtak (Haryana) 
                      
              3.     Jai Deo Singh
                     S/o Sh. Chater Singh
                     R/o Gali No­ 6, Rohilla Tailar
                     Sankar Garden
                     Bahadurgarh (Hr).

           4.       Bhopal Singh
                     S/o Sh. Chandru Singh
                     R/o Village & P.O. Kakrouli
                     Distt. Muzafarnagar (UP)

            5.       Jagjit Singh
                     Sh. Sukh Lal
                      R/o Village & P.O. Khari Jat
                      District Rohtak

             6.     Suresh Kumar
                     S/o Sh. Surya Singh
                     R/o V. Malhamazar
                     P.O. Chattra
                     Bhadurpur
                     Distt Sonepat (Haryana)

            7.       Asha Ram
                      S/o Sh. Puttu Lal
                      R/o 24, Rajpura Road
                      Delhi­ 110054

              8.      Chander Pal
                        S/o Sh. Harbans
                       R/o Village & P.O. Pura
                       District Muzaffarnagar(UP)

             9.       Sharwan Singh
                       S/o Sh. Nutha Singh
                        R/o H.No. 94, Mandir Wali Gali
                        Kai Pachi
                        Azadpur
                        Delhi­ 110033

              10.         Mahesh Chand
                            S/o Shri Subadar Singh
                            R/o X­ 1569, Scooter Market
                            Raj Singh Colony
                             Delhi

                11.        Rattan Lal
                             S/o Sh. Babu Lal
                             R/o H.No. B­ 366, Sector 19
                             Noida, Ghaziabad (UP)                 


O R D E RThis is an application under section 33­C (2) of

theI.D. Actfiled by the workmen against the managements

of   M/s   State   Trading   Corporation   of   India   and   M/s

Vanguard   Detective   &   Fire   Services.   The   present
 application is filed by workman Ram Chander for himself

and as attorney for applicants No­ 2 to 11 , it is stated that

the   Management   No­1   is   a   Government   of   India

undertaking   and   the   primary   object   of   establishing

Management   No­1   by   the   Central   Government   is   to

channelise a trading in the country; that on 7th September,

1990   Management   No­1   entered   into   an   agreement   with

Management No­2 vide its letter dated 7th September, 1990

for deployment of security services at different branches of

STC New Delhi; that the services of the workman were to

be  retained  in view  of the temporary stay order from the

Hon'ble   High  Court   of   Delhi   in  the   year   1989   in  Petition

No­   CWP   2144/89   against   illegal   termination   of   their

services   and   has   directed   by   the   Management   No­1   to

Management   No­2;   that   Management   No­1   who   are   the

principal   employers   are   responsible   for   the   payment   of
 wages   and other  benefits,   have been  paying  wages  to  the

workman through Management No­2; that the management

have   not   paid   bonus,   leave   encashment   and   terminal

benefits to the workman since the date of their joining and

that   they   are   legally   entitled   to   the   benefits   as   per   the

Annexures   'A',   hence,   the   workmen   have     claimed   the

amount   towards   bonus,   leave   encashment,   terminal

benefits as per Annexures 'A' said amount along with the

interest and cost.Notice   of   filing   of   the   application   was   sent   to   the

management   who   had   appeared   and   contested   the

application of the workman by filing written statement.   In

the written statement filed by Management No­1 they have

taken the preliminary objection that the workman are the

employees   of   Security   Contractor   and   there   is   no

relationship   between   the   Management   No­1   and   the
 workman and as such they cannot claim any benefit from

Management   No­1   since   the   bonus   and   the   terminal

benefits were to be paid by Management No­2.  On merits it

is   admitted   that   Management   No­2   had   entered   into   the

contract on 07.09.1990 but in this regard, it is mentioned

that it  were  the workman of M/s.  Management  No­2 who

approached   Hon'ble   High   Court   and   filed   a   petition   for

regularization of their services in STC/ Management No­1;

that in fact Hon'ble High Court had dismissed the petition

for   regularization   of   the   workmen   on   13.09.1995,   on   the

ground   that   there   is   no   relationship   of   employer   and

employees   between   the   workman   and   Management   No­1

whereas as far as the payment of wages and other benefits

were given to the contractor and hence the payments were

released  by the  Contractor/Security Agency.     It  is  further

stated by the Management No­1 that without prejudice to
 the   above,   it   is   submitted   that   the   contract   with

Management No­2 has been terminated in pursuance to the

order   of   Hon'ble   High   Court   of   Delhi;   that   the   security

guards   of   Management   No­2   formed   the   Association   and

filed a petition before Hon'ble High Court claiming for their

dues   and   regularization   of   their   services   in   STC   which

petition   was   dismissed   by   Hon'ble   High   Court   vide   order

dated   13.09.1995   and   against   the   order   of   Hon'ble   High

Court,   the   Workers   Association   filed   SLP   before   Hon'ble

Supreme   court   which   was   also   got   dismissed;   that

Management No­1 paid the bonus to the contractor as per

the contract and it is the contractor who had to disburse the

amount of Rs. 1,48,973/­ and unable to produce the details

of balance amount despite request; that the contractor vide

letter   dated   16.12.1993   mentioned   that   due   to   non­

availability   of   security   guards,   he   could   not   disburse   the
 balance   amount;   that   further   the   amount   of   leave

encashment   at   the   rate   of   25   per   cent   has   been   paid   to

Management  No­2  along  with  monthly   salary  bills  as per

the agreement, hence, it is stated that since the workman

are   the   employees   of   Management   No­2,   they   are   not

entitled to any relief.In the Written Statement filed by Management

No­2 it is stated that Management No­1 had released bonus

for the period of 1st October, 1990 to 31st March, 1991 and 1st

April, 1991 to 31st March, 1992 which has been disbursed to

the   eligible   security   guards   as   per   their   entitlement   by

Management No­2; that bonus for the period 1st April, 1992

to 30th September, 1996 amounting to Rs. 9,59,000/­ is held

by STC, similarly, terminal benefits/gratuity  for the period

1st  October, 1990 to 30th  September, 1996 i.e. for five years

amounting of Rs. 10.38 lakhs approximately is also held by
 Management   No­1;   that,   however,   leave   encashment   in

respect   of   security   guards   is   the   responsibility   of

Management No­2 and Management No­2 shall be paying

up to the security guards as per their entitlement as soon

as   Management   No­2   receive   the   dues   from   Management

No­1; that in this connection Letter No­ VAN/SEC/STC/SCJ

dated   18   June,   1996   was   sent   by   Management   No­2   to

Management   No­1   asking   to   settle   the   dues;that

entitlement   of   security   guards   is   not   denied   but   the

individual   entitlement   will   have   to   be   verified   from   the

records   which   can   be   settled   only   after   receiving   the

payment from Management No­1, hence, it is prayed that

the appropriate orders be passed.In   rejoinder   all   the   averments   to   the   written

statement   of   the   management   no­1  are   reaffirmed   by  the

workmen and of the written statement of management no.
 1 are denied.No   rejoinder   to   the   written   statement   of

management no­2 is filed by the workman.On the pleadings of the parties vide order dated

24.10.1996,  the then Presiding Officer has framed following

issues:­1. Whether   there   is   relationship   of   employee/   employer

  between the applicant and Respondent No­1?2. To what amount if  any the  applicants/each applicant  is

  entitled   as   his   existing   right   from   Respondent   No­1   or

  Respondent no­2?No other issues arose or pressed and the case was

adjourned for evidence on behalf of workmen/applicant.In   support   of   his   case,   workman   Ram   Chander

appeared as WW1 and filed his evidence by way of affidavit

Ex. AW1/1 and relied upon the documents Ex. AW1/2 to Ex.
 AW1/11.After   examining   WW1,   the   evidence   on   behalf   of

workman was closed.In   support   of   its   defence,   the   management   has

examined MW1 Sh. Jai Pal Singh, Marketing Manager of

the   management,   who   has   filed   his   evidence   by   way   of

affidavit Ex. MW1/A.

      After   examining   MW1,   the   management   has   also

closed their evidence.I   have   heard   submissions   of   AR   for   the   workmen

Since management no­2 is ex­parte in this case vide order

dated 7.10.09 and none was appearing for management no­

1,   the   matter   was   adjourned   for   award   vide   dated

26.11.2009   giving   liberty   to   management   no­1  to   advance

oral   arguments   or  to   file   written   arguments,   however,   no

arguments   are   advanced   by   management   no­1,   hence,   I
 proceed to decide this case on the basis of record since it is

very old mater.My issue wise findings as under:­


ISSUE NO.1


      So far as this issue is concerned, Learned AR for the

workmen has stated that it is held by the court of Sh. N.K.

Gupta as well as in the Hon'ble High Court that there is no

relationship   of   employer   and   employee   between   the

workmen and the management no. 1 and as such she states

that she does not press the claim of the workmen against

the management no. 1.  She has also stated that the similar

statement was made by Learned AR for the workmen before

the   Learned   Predecessor   Court   as   reflected   in   the   order

sheet   dated   01.07.2004.     In   view   of   this   submission   of

Learned AR for the workmen, this issue is decided against

the workmen and in favour of the management no. 1.ISSUE No. 2Before deciding this issue, it is necessary to know the

ambit of provision ofSection 33[c] [2]I.D. Act.   The scope

of the powers and scope of the court undersection 33 (c) (2)of I.D. Act has been defined by Delhi High Court in the case


titledJeet Lal Sharma Vs. Presiding Officer LabourCourt­IV  reported as  ''2000 LLR 443''  wherein it is held


that :­


          "INDUSTRIAL   DISPUTES   ACT,  1947- Section 33­C(2) 'Recovery of money

          from an employer' - Scope of and the

          Implications of Apex Court's decision

          in Municipal Corporation of Delhi v.Ganesh   Razak   Petitioner,   the

          security   supervisor   retired   from

          MCD   on   30.11.1993   -   Filed

          application   undersection   33­C(2)   of
 the Act claiming encashment of leave-   Labour   Court   by   an   order   dt.1.6.1998 dismissed the application in

relying upon the judgment in Ganesh

Razak - Petitioner filed writ petition

in   the   High   Court   -   Claiming

encashment   of  leave on  the   basis  of

service   conditions   is   one   of   the

existing   right   which   entitles   the

workman to make claim.HELD   :   If   entitlement   is   based   on

service conditions, one does not have

to   take   recourse   to   reference   undersection 10of the Act for adjudication

of the matter.   That situation would

have become necessary only if there

was a dispute about the entitlement

to   get   the   leave   encashed.     The

dispute is not about the entitlement
 to  get  the leave encashed  but  about

the   number   of   days   to   which   the

petitioner   is   entitled.     Such   a

question could have been decided by

the   labour   Court   in   these

proceedings.     As   mentioned   above

merely   because   employer   disputes

this aspect, is no ground to oust the

jurisdiction   of   labour   Court   undersection 33­C(2).    The matter is to be

looked   into   on   the   basis   of   claim

made   by   the   petitioner   in   his

application and not the reply filed by

the management.  Once it is accepted

that   this   is   one   of   the   service

conditions   of   the   workman   that   he

would   be   entitled   to   get   the   leave

encashed   upto   a   particular   limit,

claiming   this   leave   encashment   by
           filing application undersection 33­C

          (2) would be admissible.  If there is a

          dispute as to how much leave was to

          credit   of   petitioner   which   he   could

          encash,   such   a   dispute   can   be

          decided   in   these   proceedings   which

          is   incidental   to   the   main   issue.Adjudication   can   be   about   the

          entitlement  and not  when  the claim

          is   based   on   accepted   service

          conditions.     The   matter   was   not

          examined by the Labour Court from

          this angle at all.B)   WORDS   &   PHRASES   ­

          'Entitlement to receive' - Meaning of.


HELD   -   However   where   the   workman   claims   a


benefit   flowing   from   a   pre­existing   right   and


approaches   the  Labour   Court   undersection   33­C(2)
 for   computation   of   the   right   in   term   of   money   and


the employer disputes the existences of the right, the


Labour Court will have the jurisdiction to determine


the   question,   whether   the   right   exists   and   if   the


existence of the right is established than to proceed


to compute the benefit flowing therefore in terms of


money or on its decisions recovery proceedings can


start."So far as the claim against the management no. 1 is

concerned, in view of the fact that there is no relationship

between   the   workmen   and   the   management   no.   1   and   in

view   of   the   statement   of   Learned   AR   for   the   workmen

wherein  the   workmen  are  not  pressing   any claim   against

the management no. 1, it is held that the workmen are not

entitled to any claim/relief  against management no. 1. Qua
 management   no.   2,   the   workmen   have   claimed   leave

encashment, bonus and terminal benefits for the different

periods   as   mentioned   in   Annexure   'A'   attached   with   the

claim.   Management   No. 2 in the Written statement has

admitted   the   relationship   of   employer   and   employee

between it and the workmen.  He has admitted, his liability

towards bonus, leave encashment etc. However it is stated

that individual entitlement will have to be verified from the

records and further since management no. 1, who was the

principal employer has not released the bonus from April,

1992   to   September,   1996   and   terminal   benefits   from

October 1990 to 30th September, 1996 are also not released

by management no. 1,  they cannot be paid unless and until

released   by   management   no.   1.     Similarly   the   leave

encashment   will   be   released   after   receiving   from   the

management no. 1.In   this   case   only   workman   Ram   Chander   has

appeared and deposed as General Power of Attorney Holder

on behalf of other workmen.   The other workmen have not

appeared in this case to substantiate the averments of their

application nor they were cross examined.In civil matters,

the Power of Attorney Holder cannot substantiate the main


witnesses as is held in the case titled asJanki Vashdeo


Bhojwani   Vs.   Indusind   Bank   Ltd.reported   as    AIR


2005 SC 439, wherein it is held that:­


          "A.   Civil   Procedure   Code,   Order   3

          Rule 1­ Power of Attorney­ Statement

          and   cross­examination   of   power   of

          attorney   on   behalf   of   plaintiff   or

          defendant­   Not   permissible­   He

          cannot   be   allowed   to   appear   and

          depose  as a witness on behalf  of the

          principal   in   the   matters   of   his
          personal   knowledge­   He   can   appear

         only as a witness in his own capacity

         to depose with regard to the acts done

         by   him   on   behalf   of   the   principal   -Whether a person was a co­sharer in

         the  property  purchased  and had the

         source  of income   to contribute  to  its

         purchase   price,   are   the   matter   of

         personal   knowledge   of   such   person­

         His power of attorney  cannot depose

         in that regard­ If the party does not

         depose   personally   and   appear   for

         cross­examination, he will be deemed

         to have failed to prove his case."Since   except   workman   Ram   Chander,   the   other

claimants  have not   appeared to substantiate the facts  of

their services, which were in their personal knowledge, It is

held that they have failed to prove their claims by leading
 evidence, hence, they are not entitled to any relief.So far as the workman Ram Chander is concerned, he

has   appeared   and   substantiated   and   proved   all   the

averments   of   his   statement   of   claim.     Since   management

no.   2   has   admitted   its   liability   towards   the   payment   of

leave   encashment,   terminal   benefits   etc.   and   since

management no. 2 has not led any evidence nor specifically

pleaded in the Written statement about any specific amount

towards these heads,  from the statement of workman Ram

Chander,   it   is   proved   that   he   is   entitled   to   leave

encashment   and   terminal   benefits   etc   as   claimed   in

Annexure 'A'. The vague reply of management no. 2 to the

effect   that   individual   entitlement   has   to   be   verified   from

the   record   shows   that   he   has   not   disputed   the   legal

entitlement of the workmen, which is based on the service

condition as held inJeet Lal's case (supra).In view of above discussion since the management no.

2 has not disputed the entitlement of the workman to leave

encashment   and   terminal   benefits,   the   workman   Ram

Chander is entitled to receive the same.So far as the  claim for bonus is concerned as per the

judgment of Hon'ble Supreme Court, labour courts are not

competent to grant any relief of bonus under theBonus Act.

It   is   held   by   the   Hon'ble   Supreme   Court   in   case   of   H.P.

State   Electricity   Board   &   anothers   Vs.   Ranjit   Singh   and

others 2008 LLR 765 SC as under :"A. PAYMENT OF BONUS ACT, 1965-Section 22- Reference of industrial

            dispute   for   adjudication   under   the

            Act - Expression 'Bonus payable' - It

            cannot   be   said   that   it   relates   to

            quantum   and   not   payability.     Para15.
 B.   INDUSTRIAL   DISPUTES   ACT,

1947,   -Section   33C(2)Recovery   of

money   due   from   an   employer   by   the

workman   -   Bonus   -   Entitlement   -

Could   not   be   decided   by   Labour

Court   since   such   powers   are   vested

with Industrial Tribunal - It can be

claimed by a workman - Only he has

an existing right.The Labour Court can decide only the

matters specified in Second Schedule,

of   the   Industrial   Disputes   Act,

whereas, 'bonus' appears as Item 5 in

the   Third   Schedule   which   is   to   be

decided by the Industrial Tribunal.

The question of entitlement to bonus

could   not   have   been   decided   by   the

Labour Court as if it is of pre­existing

right   since   there   must   be   an
            agreement   by   both   sides   about

           existence   of   such   right.     If   there   is

           dis­agreement  by the  parties  or even

           by one party, this has to be decided by

           the   competent   authority   under   theIndustrial Disputes Act."In view of above discussion, it is held that   workman

Ramchandran is entitled to recovery from respondent no­2

of RS, 6490.23 towards leave encashment and Rs. 3862.50

towards   terminal   benefits   along   with   interest   @   9   %   per

annum .  The other workmen are not entitled to any relief.Application disposed off accordingly. File be consigned

to record room.Announced in the open court 
on 21.01.2010                         (Renu Bhatnagar)           
                                Presiding Officer Labour Court­X
                                     Karkardooma Courts, Delhi 
                                                             LCA­ 49/08



21.01.2010

Present:  NoneThe award is passed separately. Ahlmad is

directed   to   send   six   copies   of   this   award   to   appropriate


Government. The file be consigned to Record Room.(Renu Bhatnagar) 
                                      POLC­X/ 21.01.2010