Delhi District Court
Mohabbat Singh Negi S/O. Sh. Jaypal ... vs M/S. Formula One Corporate Solutions ... on 29 June, 2015
Mohabbat Singh Negi Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 16/12
BEFORE LABOUR COURT - XI: KARKARDOOMA COURTS: DELHI
PRESIDING OFFICER: Mr. ANAND SWAROOP AGGARWAL
(Delhi Higher Judicial Service)
(Additional District & Sessions Judge, Delhi)
REFERENCE CASE (ID NO). 16/12
UNIQUE CASE IDENTIFICATION NO. 02402C0022032012
In the matter of:
Mohabbat Singh Negi s/o. Sh. Jaypal Singh Negi,
R/o. 383A, DDA Flats, Gazipur, New Delhi.
New Address:
255C, DDA Flats, Gazipur, Delhi.
C/o. Sh. Asgar Ali and Sh. G. C. Joshi Advocates,
Chamber No. 29495, Civil Wing,
Tis Hazari Court, Delhi110054. ......... Workman/Claimant
Vs.
M/s. Formula One Corporate Solutions Pvt. Ltd.,
(Presently: M/s. Formula Corporate Solutions India Pvt. Ltd.)
2/6, 2nd Floor, West Patel Nagar,
Delhi 110008. ......Management
Date of institution : 10.01.2012
Date of reserving for award : 01.06.2015
Date of award : 29.06.2015
AWARD:
1.TERMS OF REFERENCE Vide Order No. F3(276)/11/Ref./WD/LAB/919 dated 27.12.2011 Deputy Labour Commissioner (West District), Labour Department, Government of N.C.T. of Delhi, Delhi referred following industrial dispute between workman Mohabbat Singh Negi, S/o Sh. Jaypal Singh Negi, R/o. 383A, DDA Flats, Gazipur, New Delhi. C/o Sh. Page 1 of 22 (ANAND SWAROOP AGGARWAL)
POLCXI/KKD/DELHI/29.06.2015 Mohabbat Singh Negi Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 16/12 Asgar Ali and Sh. G. C. Joshi Advocates, Chamber No. 29495, Civil Wing, Tis Hazari Court, Delhi110054 and management M/s. Formula One Corporate Solutions Pvt. Ltd., 2/6, 2nd Floor, West Patel Nagar, Delhi110008 u/s. 10(1) (c) and 12(5) of the Industrial Disputes Act, 1947 vide Govt. of NCT of Delhi, Labour Department Notification No. F.1/31/616/Estt/2008/7458 dated 03.03.2009 for adjudication by this court : ''Whether the superannuation given to Sh. Mohabbat Singh Negi S/O Sh. Jaypal Singh Negi by the management is legal or his services have been terminated illegally and /or unjustifiably by the management; and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. CASE OF THE WORKMAN AS PLEADED IN THE STATEMENT OF CLAIM.
(i) The workman was in continuous service under the management at the post of 'Driver' and workman performed his duties honestly and no adverse order, report or remark was ever made against the workman during his employment. The last drawn salary of the workman was Rs. 9,568/ per month.
(ii) The workman never received letter dated 13.04.2010 issued by the management, in respect of "Superannuation Retirement". The correct and exact date of birth of the workman is 15th day of June 1954 and this has been duly shown always in the government records as well as the records of the management, therefore, the workman cannot be retired by way of superannuation and his date of retirement would be 15.06.2012 The management has been doing colourable exercise of power while passing superannuation of the workman and the order of termination of the workman is illegal and against the principal of natural justice.
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(iii) The workman being a member of Delhi Private Car Drivers Union and hence after gaining knowledge about his termination vide the above said letter, the workman agitated against the illegal acts of the management and sent a notice dated 18.05.2010, through union, thereby calling upon the management to recall/withdraw the said letter of superannuation retirement of the workman. But despite the service of the said legal notice the management failed to comply with the terms of notice and did not allow the workman to resume on his duties w.e.f. 01.07.2010.
(iv) The workman at no point of time ever represented that his date of birth is 15.06.1952. The workman has always represented and mentioned his date of birth as 15.06.1954 which is very much clear from the documents filed by the workman i.e. ESI Card, family register, Election ID card, notice of salary from M/s. Sumitomo Corporation dated 1.09.1985, Letter of Confirmation from M/s. Sumitomo Shoji Kaisha, Ltd dated 01.03.1986, Notice of salary dated 23.04.1986, Notice of salary dated 1.04.1987, Notice of salary dated 1.04.1988, Copy of Affidavit dated 6.11.1985.
(v) The services of the workman has been wrongly, deliberately and with malafide intention terminated on the ground of superannuation by the management.
(vi) The workman is entitled to reinstatement in his services back alongwith full benefits and continuity of services yet, without prejudice to his rights, workman is eligible to receive his legal dues alongwith following amounts:
a. Entire earned wages up to this date.
b. Wages for earned leave.
c. One month's notice pay in lieu of the notice.
d. Payment of gratuity as per the Payment of Gratuity Act., 1972.
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Mohabbat Singh Negi Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 16/12
e. Payment of bonus under the Payment of Bonus Act., 1965.
(vii) The workman further sent a demand notice on dated 09.08.2010 through
registered AD, which was duly served upon the management but the management did not reply the same for the reasons best known to it.
(viii) The workman is jobless since his termination and could not get any job despite several efforts. The workman is at the verge of starvation and the management is liable for the same.
With these averments, workman prayed for passing appropriate order whereby the management be directed to reinstate the workman in earlier place of work, with full back wages, all other benefits alongwith consequential relief and benefits and continuity of service in favour of the workman.
3. STAND OF THE MANAGEMENT AS PLEADED IN THE WRITTEN STATEMENT OF DEFENCE.
Management took certain preliminary objections such as that (i) since claimant has never been terminated by the management at any point of time the dispute raised by the claimant is not an 'industrial dispute', hence, the same being not legally maintainable, is liable to be rejected; (ii) since the dispute raised by the claimant does not fall under the definition of 'industrial dispute' as defined u/s. 2(k) of the Industrial Disputes Act, 1947 nor the same is covered under as deemed 'industrial dispute' under the definition of section 2A of the Industrial Disputes Act, 1947, the same is not legally maintainable under the provisions of Industrial Disputes Act 1947, is, therefore, not a valid dispute to be entertained or adjudicated; (iii) since the claimant has never been dismissed, discharged, retrenched or otherwise terminated by the management, who has Page 4 of 22 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Mohabbat Singh Negi Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 16/12 been legally and validity retired from the services on reaching his age of superannuation, the dispute without having been espoused by substantial number of workmen employed in the establishment is not an 'industrial dispute' and is, therefore, not legally maintainable; (iv) the claimant has not approached this Court with clean hands and has suppressed and misrepresented some material facts with ulterior motive. The address given by the claimant in the statement of claim seems to be his incorrect address as per the records of the management and the claimant is guilty of concealing correct address and filing false affidavit before this Court, due to which his claim is liable to be rejected and claimant deserve no relief from this Court on this ground alone and (v) the dispute against "M/s. Formula One Corporate Solutions" is not legally maintainable as the correct name of the management is "Formula Corporate Solutions Pvt. Ltd.".
ON MERRITS, while denying the case as pleaded by workman in the statement of claim, management pleaded that claimant joined the services of management w.e.f. 01.12.2006 as 'driver' and letter of superannuation dated 13.04.2010 issued by the management was duly received by workman which was given to him by hand but after receiving the same the workman refused to sign on the letter as acknowledgment. The workman in his own legal notices and claim before the conciliation admitted to have received the letter dated 13.04.2010 and the story that workman never received letter dated 13.04.2010 cannot be believed and seems to be an after thought. Workman joined the services of the management w.e.f. 01.12.2006 and as per terms and conditions of his employment the workman was to be retired from the services on reaching the age of 58 years. It is wrong that the date of birth of workman was 15.06.1954. Infact, as per documents submitted by workman to the management at the time of his employment (i.e. his valid driving license during the relevant period), the date of birth of workman Page 5 of 22 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Mohabbat Singh Negi Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 16/12 is 01.07.1952 and on the basis of this the workman has validly and legally been retired from the services of the management w.e.f. 01.07.2010 (i.e. on reaching his age of 58 years). The decision of the management in regard of his retirement vide letter dated 13.04.2010 was, therefore, bonafide and genuine and cannot be said to be false, frivolous and baseless, as alleged. The management never received any notice dated 18.05.2010 claimed to have been got sent by the workman through union calling upon the management to withdraw the said letter of superannuation. Since the workman never sent any notice dated 18.05.2010 nor the management received any such notice, the question of management for compliance or noncompliance of the notice did not arise. Since after the retirement the workman never visited the establishment of the management the question of the management not allowing the workman to resume his duty w.e.f. 01.07.2010 did not arise. Even in the ESI card submitted by the workman his date of birth is 01.07.1954 and not 15.06.1954 as claimed by workman and rest of documents submitted by the workman cannot be treated as authentic documents for the purpose of his date of birth. Since there were various contradictions in the documents submitted by the workman to this effect, the decision of the management treating his date of birth as 01.07.1952 as his correct date of birth was justified and workman had been rightly and validly retired from the service. The action of the management is, therefore, bonafide and without any malafide intention or motive. The claimant cannot be allowed to take benefits of his own mistakes/errors and no request in regard to change of the date of birth could have been accepted at the fag end of his service. Since the workman has never been terminated by the management and workman has been validly and legally retired from the services on reaching the age of superannuation, the question of reinstatement in service does not arise. Even otherwise, the prayer of workman for the amount of gratuity and bonus cannot be entertained in present claim Page 6 of 22 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Mohabbat Singh Negi Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 16/12 as entitlement and grant of gratuity and bonus, if any, can be adjudicated by the forum/authority appointed under the Payment of Gratuity Act, 1972 and Payment of Bonus Act, 1965. Since false and baseless notice dated 09.08.2010 was got sent by the claimant raising the same issues which had earlier been decided, the same was not liable to be replied. Since the workman has never been terminated by the management at any point of time, the question of management being liable for his being unemployed does not arise. Even otherwise the workman has never been unemployed as alleged. At last management prayed for passing an award in favour of management and against the claimant.
4. REJOINDER Workman filed rejoinder to the WS of the management denying the stand taken by the management and reaffirming the averments made in statement of claim.
5. ISSUES Vide order dated 16.07.2012 following issues were framed:
(i) As per terms of reference.
(ii) Relief. 6. EVIDENCE
Workman appeared in the witness box as WW1 Mohabbat Singh Negi and filed his examinationinchief vide affidavit Ex. WW1/A. Workman relied upon documents:
Ex.WW1/1 Legal Notice dated 09.08.2010 sent to management; Ex.WW1/2 Reminder to legal notice dated 09.09.2010 sent to management by workman; Ex.WW1/3 (also exhibited as Ex. WW1/W7x) ESIC Card of workman; Ex.WW1/4 Election Identity Card of workman; Ex.WW1/5 Copy of 'Parivar Register' issued by Gram Panchayat of Jalwal Village, Tehsil Partap Nagar, Tehri Garhwal; Ex.WW1/6 Page 7 of 22 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Mohabbat Singh Negi Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 16/12 Notice of salary dated 01.09.1985 issued by Sumitomo Corporation; Ex.WW1/7 Notice of salary dated 23.04.1986 issued by Sumitomo Corporation; Ex.WW1/8 Notice of salary dated 01.04.1987 issued by Sumitomo Corporation; Ex.WW1/9 Notice of salary dated 01.04.1988 issued by Sumitomo Corporation; Ex.WW1/10 Letter of Confirmation dated 01.03.1986; Ex.WW1/11 Affidavit of workman. Workman in his crossexamination confronted with documents Ex.WW1/M1X Photocopy of Driving License of workman; Ex.WW1/M2X PAN Card of workman; Ex. WW1/M3X Another Driving License of workman; Ex.WW1/M4X Letter dated 26.09.2007 sent by management to workman with Sub: Change of Address; Ex.
WW1/M5X - Declaration for ESIC Temporary Identity Card; Ex.WW1/M6X Letter of Appointment dated 01.12.2006; Ex.WW1/M7X (also exhibited as Ex. WW1/3) Photocopy of ESIC Card. WE was closed on 04.02.2013 by ld. counsel for workman.
Management examined MW1 Sh. Deepak Kumar, Asst. Manager (HR) of the management by tendering his examinationinchief vide affidavit Ex. MW1/A and relied upon documents; Ex.MW1/1 Driving License of workman valid up to 15.03.2008; Ex.MW1/2 Letter of Superannuation Retirement dated 13.04.2010 sent by management to workman; Ex.MW1/3 Reply on behalf of management to statement of claim. Management witness MW1 Mr. Deepak Kumar confronted the documents in crossexamination; Ex.MW1/W1X Board Resolution; Ex.MW1/W2X Letter of Appointment dated 15.04.2004; Ex.MW1/W3X Memorandum and Articles of Association of management. ME was closed on 24.11.2014.
7. MANAGEMENT'S APPLICATION FOR SEEKING CORRECTION IN TYPING / INADVERTENT ERROR IN THE CROSS EXAMINATION OF THE WORKMAN WW1.
On 15.04.2013 an application was moved by management for seeking correction Page 8 of 22 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Mohabbat Singh Negi Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 16/12 in the cross - examination of the workman. Workman filed reply to the same. On 05.08.2013 court has passed the following order: "05.08.2013 Present : Workman with Sh. Rahul Lal advocate.
Sh. K.K. Makhija Advocate with Sh. Deepak Kumar Assistant Manager for the Management.
Heard on the application moved by the Management for seeking correction in typing / inadvertent error in the cross examination of WW1 Mohabat Singh. Put up at 4.00 p.m. for orders.
(ANAND SWAROOP AGGARWAL) POLC XI / KKD./ DELHI 05.08.2013 05.08.2013 (4.00 p.m.) Present : None.
Application moved on 15.04.2013 by the Management for seeking correction in the cross - examination of the workman as well as its reply given by the workman perused. Other material available on the judicial file also perused. By the present application Management wants that the depositions made by the WW1 Mohbat Singh in his cross - examination to the effect that "...... It is wrong to suggest that my actual date of birth is 15.06.1952 ....." be read as "...... It is wrong to suggest that my actual date of birth is 01.07.1952 .....". It is submitted by the ld. counsel for the Management that date of 15.06.1952 has been 2 written due to clerical mistake, otherwise stand of the Management as per WS is that date of birth of workman is 01.07.1952. It is noteworthy that a suggestion in conformity with the stand of the Management has been given in the later part of the cross - examination of the WW1 Mohbat Singh which was replied by him as "...... It is wrong to suggest that my actual date of birth is 01.07.1952 .....". The stand of the Management which the Management wants to bring on record by seeking the correction has already come on record. To my mind, when specific stand of the Management in its WS is that date of birth of workman is 01.07.1952, there was no reason for the ld. counsel for the Management to give a suggestion to the effect that the date of birth of workman was 15.06.1952. In all likelihood date of 15.06.1952 in the cross - examination of the WW1 Mohbat Singh has been written due to typographical / clerical mistake. Hence it is ordered that for all practical purposes date of 15.06.1952 coming in the cross - examination of WW1 Mohbat Singh be read as 01.07.1952. Application stands dispose off as allowed. Page 9 of 22 (ANAND SWAROOP AGGARWAL)
POLCXI/KKD/DELHI/29.06.2015 Mohabbat Singh Negi Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 16/12 Put up on 16.09.2013 for ME."
8. ARGUMENTS I have heard Sh. Deepak Arora, Adv. for workman and Sh. K. K. Makhija Adv. for the management and perused the record.
Ld. counsel for management relied upon case laws reported as (i) Devi Prasad Vs. Taj Sats Air Catering Ltd. 2014 LLR 604; (ii) Union of India Vs. Ram Sua Sharma C. A. No. 3626/1996 dated February 15, 1996; (iii) Amco Batteries Ltd., Bangalore Vs. Mariappa 2006 LLR 927; (iv) Gurcharan Singh Sethi Vs. Union of India and Others 2002 - IV - LLJ (Suppl) 716; (v) State of Haryana Vs. Satish Kumar Mittal and Another (2010) 9 SCC 337; (vi) G. M., Bharat Coking Coal Ltd., West Bengal Vs. Shib Kumar Dushad and Others (2000) 8 SCC 696; (vii) Regional Provident Fund Commissioner Vs. Bhavani 2008 LLR 661; (viii) Hindustan Lever Ltd. Vs. S. M. Jadhav and Another (2001) 4 SCC 52; (ix) Managing Director, Orissa Textile Mills Ltd. & Ors. Vs. Mandardhar Naik II 1996 LLJ 748; (x) Central P & D Inst. Ltd. Vs. Union of India and Another (2005) 9 SCC 171; (xi) Asstt. Engineer, Rajasthan Dev. Corp. & Anr. Vs. Gitam Singh 2013 LLR 225; (xii) Span India Pvt. Ltd. Vs. Ram Sunder and Anr. decided on 5 October, 2006 by Hon'ble Mrs. Justice Manju Goel, Judge, Delhi High Court; (xiii) M/s. Purafil Engineers, Pune Vs. Shaikh Anwar Abdul Rahman 2000 LLR 268; (xiv) Ms/. Trina Engineering Company (P) Ltd. Vs. The Secretary (Labour) & Ors. 2006 LLR 51; (xv) R. K. Kitchen Equipments, Mumbai Vs. Majid Yusuf Hurape & Ors. 2003 LLR 920; and (xvi) General Manager, Haryana Roadways Vs. Rudhan Singh (2005) 5 SCC 591. Material on judicial file perused. I have given a thoughtful consideration to the facts and circumstances of this case as they arise on the basis of material available on judicial file. I have also perused the abovesaid case laws with utmost regards with a query in mind as regards their applicability by in the totality of - Page 10 of 22 (ANAND SWAROOP AGGARWAL)
POLCXI/KKD/DELHI/29.06.2015 Mohabbat Singh Negi Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 16/12 facts and circumstances of this case keeping in mind doctrine / principles of precedents.
9. My ISSUEWISE FINDINGS are as under: ISSUE No. 1: As per terms of reference.
(''Whether the superannuation given to Sh. Mohabbat Singh Negi S/O Sh. Jaypal Singh Negi by the management is legal or his services have been terminated illegally and or/ unjustifiably by the management; and if so, to what relief is he entitled and what directions are necessary in this respect?") Management has taken preliminary objection to the effect that dispute raised by claimant does not fall under the definition of 'industrial dispute' u/s. 2(k) of the Industrial Disputes Act, 1947 nor the same is covered u/s. 2A of the Industrial Disputes Act, 1947 and, therefore, the same is not legally maintainable under the provisions of the Industrial Disputes Act, 1947. HERE admittedly / undisputedly age of retirement of workman from the employment under the management is 58 years. As per workman his correct and exact date of birth is 15th June 1954 and his date of retirement from the employment under the management would be 15.06.2012. On the other hand, as per the management, as per documents submitted by the workman to the management at the time of his employment (i.e. his valid driving license during the relevant period) the date of birth of workman is 01.07.1952 and on the basis of this the workman has validly and legally been retired from the services of the management w.e.f. 01.07.2010 (i.e. on reaching his age of 58 years). It is in this background that abovesaid reference has been made by appropriate govt. for adjudication by this Court. Section 2A (1) of the Industrial Disputes Act, 1947 reads as under : "2A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute : (1) Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference Page 11 of 22 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Mohabbat Singh Negi Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 16/12 between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute."
It is not a case of discharge or dismissal of the workman. As the defence / stand taken by management suggests it is not even a case of 'retrenchment' inasmuch as case of workman is covered under proviso (b) to section 2(oo) of the Industrial Disputes Act, 1947 which defines the term 'retrenchment'. As per section 2A(1) of the Industrial Disputes Act, 1947, any dispute or difference between the individual workman and his employer connected with, or arising out of, discharge, dismissal or retrenchment or otherwise termination shall be deemed to be an individual industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute. Here vide Ex. MW1/2 - Letter of Superannuation Retirement dated 13.04.2010 workman has been made to retire w.e.f. 01.07.2010 on the ground of workman allegedly attaining the age of superannuation i.e. 58 years. Workman is disputing the same. Thus, it can be said that there exists dispute or difference between the workman (the individual workman) and the management as regards retrenchment or otherwise termination of services of workman. Abovesaid document Ex. MW1/2 has / had the effect of terminating (bringing to an end) the services of workman by the management. In any case there is dispute / difference between the workman (the individual workman) and the management whether this case is covered u/s. 2 (oo)(b) of the Industrial Disputes Act, 1947 or not. Thus, case of the workman herein is held to be covered u/s. 2A(1) of the Industrial Disputes Act, 1947. Case law Devi Prasad Vs. Taj Sats Air Catering Ltd. relied upon by ld. counsel for management with regard to preliminary objection under consideration has no application in this case. In the said case workman Page 12 of 22 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Mohabbat Singh Negi Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 16/12 had approached the Industrial Tribunal prior to his retirement with the contention that since the similarly situated employees and drivers of Taj Sats Care Catering Ltd. at Mumbai are being retired at the age of 60 years, he should not be retired at the age of 55 years, that too, without any pensionary benefits etc. Here workman has approached after workman stood retired by the management.
Management has also taken a preliminary objections to the effect that claimant is guilty of concealing correct address and filing false affidavit before this Court, due to which his claim is liable to be rejected and claimant deserves no relief from this Court on this ground alone.
Workman in his crossexamination as regard his address deposed as under : "I am residing at 383 - A, DDA Flats Gazipur, Delhi for the last 15 years. I used to inform the Management regarding the change in my residential address, if any.
It is correct that 255 C, DDA Flats, Gazipur, Delhi is my residential address and I am residing there for the last 6 years. This is my own house. I have sold out my property 383A, DDA Flats, Gazipur, Delhi four years back and my correct address now a days is 255 C, DDA Flats, Gazipur, Delhi. I had also informed the Management regarding that change in my residential address.
I cannot say as to why I have filed evidence affidavit on the basis of wrong address. It is correct that I have also mentioned my wrong address in my examinationinchief dated 05.11.2012. It is also correct that I have filed my affidavit along with the claim petition by giving wrong address. Even in my authority letter I have submitted my address 383A, DDA Flats, Gazipur, Delhi".
What is pertinent to note is that workman in his crossexamination reproduced hereinabove also deposed that, ".... I had also informed the Management regarding that change in my residential address....". Workman in his crossexamination has been made to depose as under : Page 13 of 22 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Mohabbat Singh Negi Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 16/12 "At this stage a photocopy of a letter regarding the change of address is put to this witness. Same is Ex. WW1/M4x. This witness admits that the document Ex. WW1/M4x is the photocopy of his letter given to the Management regarding his change of address".
Document Ex. WW1/M4x (dated 26.09.2007) mentions the old address of workman as 383A, DDA Flats, Gazipur, Delhi - 110096 and new address as 255 C, DDA Flats, Gazipur, Delhi. Hence workman during his employment with management did inform the management regarding his new address. In this background, the above referred depositions made by workman regarding his address(es) are to no legal consequences. Matter can also be looked from another perspective. Here address of workman is not a determinative factor for determination of dispute involved herein. Thus inconsistent / incorrect depositions made by workman as regards his address cannot be taken to be having any effect on the entitlement or otherwise of the workman on the merits of the case.
Admittedly / undisputedly age of retirement of claimant from the employment of management is 58 years. However claimant and management are at issue as regards date of birth of claimant. As per workman his date of birth is 15.06.1954. But as per management date of birth of workman is to be treated as 01.07.1952. Thus, there is consequential issue / dispute as regards date of retirement of claimant and, hence, the present reference. Workman in his cross - examination has deposed that, ".... At this stage a photocopy of an appointment letter is put to this witness. Same is Ex.WW1/M6x. This witness admits that the document Ex.WW1/M6x is the photocopy of his appointment letter bearing his signatures at point - A.....". Clause 14 of the Letter of Appointment Ex. WW1/M6x reads as under : "14. Your date of birth mentioned in the matriculation/higher secondary certificate shall be deemed to be correct and conclusive proof of your date Page 14 of 22 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Mohabbat Singh Negi Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 16/12 of birth. No request in regard to the change in date of birth at the fag end of service will be entertained."
Workman in his crossexamination deposed that, "I have studied upto 8th class....". Thus, there is no question of workman having matriculation / higher secondary certificate. Despite his having studied upto 8th class the workman in his crossexamination deposed that, "...I do not have any certificate of date of birth issued by the school in which I studied. Name of my said school is Dharkot Junior High School, District Tehri, Uttrakhand.....". Workman has not even summoned any witness from the school to prove his date of birth as per records of the school. Workman in the statement of claim alleged that correct and exact date of birth of workman is 15 th day of June 1954 and this has been duly shown always in the government records as well as the records of the management. Obviously burden of proof lies on the workman to prove the averments made in the statement of claim. The burden is on the workman to establish the same by placing acceptable and clinching material in support thereof. Workman in his crossexamination was confronted with driving licence Ex. WW1/M1x and workman admitted that this documents Ex. WW1/M1x is the photocopy of his driving licence. Ex. WW1/M1x is driving licence in the name of workman for Vehicle Class; LMV (Comm.) with Date of issue: 11.02.2002 and Validity: 10.02.2005 and it mentions the Date of Birth as 01.07.1952. Ex. WW1/M2x - PAN CARD of workman, which is an admitted document mentions date of birth of workman as 16.07.1953. Ex. WW1/M3x admittedly another driving licence of workman mentions the date of birth of workman as 01.07.1952. Ex. WW1/M5x admitted ESI Nomination Form of workman and Ex. WW1/M7x admitted ESI Card of workman mentions his date of birth as 01.07.1954. Ex. WW1/5 'Parivar Register' mentions the date of birth of workman as 15.06.1954. But it is noteworthy that in Ex. WW1/5 the figures 156 are written in ink Page 15 of 22 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Mohabbat Singh Negi Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 16/12 different from the ink in which rest of contents of said document have been written. Also notably in none of the other entries in the same column date is mentioned and in rest of entries only the year of birth is mentioned. Date of birth 156, but in different ink, is mentioned only in the column against the name of workman only. There are no initials nearby figures 156 which could have suggested that these figures have been added by the authority issuing the same. No person from the authority purportedly issuing Ex. WW1/5 has been summoned by workman prove either the document Ex. WW1/5 or that figures 156 have been added by the authority purportedly issuing Ex. WW1/5. Importantly figures of 156 are not there in the photocopy of Ex. WW1/5 filed by workman alongwith list of documents at serial no.4 and page no.7. Ex. WW1/5 nowhere mentions date of its issue. Its first hand appearance does not rule out possibility of its nonexistence in the year 2006. Further it is pertinent to note that heading of relevant column in Ex. WW1/5 is "Janamtithi yadi gayat ho athwa sambhavit janam tithi". Thus, it can be said that contents of Ex. WW1/5 as mentioned in this column cannot be said / accepted to be correct and exact date of birth of workman. When Ex. WW1/5 has entertained doubts about is reliability on the face of it, it does not matter if no suggestion was given to workman that it is a false and fabricated document. In the totality of facts and circumstances discussed above, in my considered opinion, Ex. WW1/5 cannot be accepted as conclusive proof of date of birth of workman as 15.06.1954. Election I. Card of workman Ex. WW1/4 mentions the age of workman as 40 years as on 01.01.1994. This also suggest that workman was born in 1954 and not in 1952.
In none of the documents discussed till this time date of birth of workman is mentioned as 15.06.1954. Thus, workman can be said to have failed absolutely to prove his averment that date of 15.06.1954 has been duly shown always in the government Page 16 of 22 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Mohabbat Singh Negi Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 16/12 records as well as the records of management. Except Ex. WW1/5, which has already been discarded by this Court, no other so called government record has even been produced by workman, which mentions his date of birth as 15.06.1954. Even attention of the Court has not been drawn towards any record(s) of the management mentioning the date of birth of workman as 15.06.1954. Merely because Ex. WW1/3 and Ex. WW1/M5x mention the date of birth of workman as 01.07.1954 does not mean that management was bound to treat the date of birth of workman as falling in the year 1954 inasmuch as workman is supposed to prove, as alleged by workman himself, by leading cogent and convincing evidence that his correct and exact date of birth is 15.06.1954. Workman in his crossexamination deposed that, "......My date of birth as 01.07.1954 in my ESI card was mentioned on the basis of the documents submitted by me to the Management. The photocopy of the same is Ex. WW1/M7x......" but except Ex. WW1/3 (which has also been exhibited as WW1/M7x) and Ex. WW1/M5x no document has been produced by workman showing in date of birth even as 01.07.1954. PAN CARD Ex. WW1/M2x mentions a different date of birth of workman (i.e. 16.07.1953).
Workman is also relying upon Ex. WW1/6 to Ex. WW1/11 to prove that his date of birth is 15.06.1954. All of these documents mention the date of birth as 15.06.1954. Notably Ex. WW1/11 is purportedly affidavit of workman himself, which, obviously, cannot be acted upon as proof of date of birth of workman in the absence of other supporting / corroborative proof in this regard. Also notably name of father of Mohabat Singh in Ex. WW1/11 is mentioned as Chupal Singh and not Jaypal Singh as is mentioned in the order of reference. Also Ex. WW1/11 has been signed differently than by the workman in the present proceedings. Even the documents Ex. WW1/6 to Ex. WW1/10, in the absence of supporting / corroborative reliable documentary evidence cannot be accepted as conclusive proof of date of birth of workman as Page 17 of 22 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Mohabbat Singh Negi Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 16/12 15.06.1954. Workman in his crossexamination deposed that, ".......The documents showing my date of birth as 15.06.1954 has already been placed on the judicial file as Ex. WW1/5 to Ex. WW1/11. In documents Ex. WW1/6 to Ex. WW1/10 I had got my date of birth mentioned as 15.06.1954 on the basis of affidavit which is Ex. WW1/11, given by me to the Management.......". Meaning thereby that except the affidavit Ex. WW1/11, workman is having no conclusive / authoritative proof of his date of birth as 15.06.1954.
MW1 Mr. Deepak Kumar in his evidence affidavit Ex. MW1/A deposed as under : "4. That as per record, the claimant Shri Mohabbat Singh Negi at the time of his employment with the management had filed his driving license as his proof of date of birth according to which his date of birth is 01.07.1952. The copy of the said driving license for the period from 16.3.2005 to 15.3.2008 given at the time of his employment by the claimant may be read as Exb. MW1/1. The claimant during his employment also submitted his copy of renewal license for the period 20082011 Exb. WW1/M3x in which also his date of birth was mentioned as 1.7.1952. The claimant apart from the above driving licenses never submitted any other document as his proof of age and the management on the basis of MW1/1 had duly treated his date of birth as 01071952 from the date of his joining till retirement and never treated the date of birth of the claimant as 15.06.1952 as claimed by the claimant.
5. That on the basis of his date of birth as 01071952, the claimant has validly and legally been retired from the service of the management w.e.f. 01072010 i.e. on reaching his age of 58 years vide letter dated 13.4.2010. The said letter of retirement dated 13.4.2010 was given to the workman by hand but the claimant on receipt of the same did not sign the said letter as acknowledgment. The letter dated 13.4.2010 may kindly be read as Ex. MW1/2.
6. That infact Sh. Mohabbat Singh, after the receipt of the letter of his retirement dated 13.4.2010, approached and submitted to the management that his date of birth has been wrongly recorded by the management and claimed that his actual date of birth is 15061954. The workman was given Page 18 of 22 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Mohabbat Singh Negi Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 16/12 opportunity to submit documents in support of his claim and he filed certain documents. He submitted his Pan Card (Exb. WW1/M2x), E.S.I. Card (Ex. PW1/3 & Ex. WW1/M5x), his Voter Identity Card (Ex. PW1/4) and copy of the family member register (Ex. PW1/5). He also submitted some more documents which are Ex. PW1/6, PW1/7, PW1/8, PW1/9 & PW1/10 in support of his date of birth.
7. That on consideration of documents submitted by the claimant, contradiction in the date of birth of claimant was found even in his own documents wherein the different date of birth of the claimant had been shown.
8. That since document submitted by the workman from Ex. PW1/6 TO PW1/10 were in regard to the employment of the workman with M/S Sumitomo Corporation which is a different and separate legal entity from the management and during which period he was not in the employment of the management, the management was not under any obligation to consider the date of birth mentioned in these documents as correct as the same were also not authentic documents for the purpose of date of birth. The E.S.I. Card of the claimant (Ex. WW1/M5x) is/was bearing the date of birth as 01071954 and not 15061954 as claimed by him whereas his Pan Card WW1/2x was bearing his date of birth as 16.7.1953. The workman during his employment with the management had submitted his renewed driving license Exb. WW1/M3x for the period 2008 to 2011 according to which also his date of birth is 1.7.1952 which also proved the stand of the claimant incorrect. In view of the various contradiction in the documents submitted by the workman to this effect, the management rightly and validly treated the date of birth of the workman as 01071952 which was entered in the record of the management at the time of his employment on the basis of his driving license submitted by the workman and there was no valid reason for the management to reconsider its decision on the retirement of the claimant w.e.f. 1.7.10." Notably Ex. MW1/3 is infact another copy of WS filed before this Court. Even as per clause 16(e)(iii) of appointment letter Ex. WW1/M6x (which required the workman to submit relieving letter from last employer of workman), workman was not supposed to furnish documents Ex. WW1/6 to Ex. WW1/10 to the management at any stage except as per depositions made by MW1 Mr. Deepak Kumar. None of these Page 19 of 22 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Mohabbat Singh Negi Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 16/12 documents Ex. WW1/6 to Ex. WW1/10 is relieving letter as contemplated by clause 16(e)(iii) of Ex. WW1/M6x. Workman in the statement of clam did not plead that workman submitted documents of his date of birth in terms of clause 16(e) of the appointment letter Ex. WW1/M6x. In view of above detailed discussion it can be said that workman has failed to prove that his correct and exact date of birth is 15.06.1954 and that this date has always been duly shown in the government records and records of the management.
In the totality of facts and circumstances of this case it cannot be said that management malafidely terminated the services of workman vide Ex. MW1/2. Workman in the statement of claim pleaded malafides on the part of management but has failed to even plead the facts giving rise of malafides on the part of management against the workman or facts in the nature of conduct of management which would have suggested that management had any malafides against the workman. Workman was well in advance informed about his retirement w.e.f. 01.07.2010 vide letter Ex. MW1/2 (dated 13.04.2010). Workman falsely / wrongly pleaded in the statementof claim that workman never received letter dated 13.04.2010 but in his crossexamination workman deposed that ".... I was given a letter dated 13.04.2010 by the Management in the office hours by hand which I refused to receive....". This refusal on the part of workman cannot be said to be proper. Also Ex. WW1/1, (para. 2 beginning) specifically mentions that workman had received letter dated 13.04.2010 issued by management in respect of Superannuation Retirement. When the workman had received the letter Ex. MW1/2 dated 13.04.2010, quite possibility, the depositions made by MW1 Mr. Deepak Kumar in para. 6 of his evidence affidavit may be true. Ex. WW1/5 nowhere mentions the date of its issue. The first hand appearance of this document does not suggest that it warm existence at the time of workman joining Page 20 of 22 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Mohabbat Singh Negi Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 16/12 management in 2006. Workman in the statementofclaim also pleaded about issuance of notice dated 18.05.2010 to the management. But this averment of workman is not worth reliance inasmuch as workman has neither produced the copy of said notice dated 18.05.2010 nor any proof of dispatch of the same to management or receipt of the same by the management. MW1 Mr. Deepak Kumar in his crossexamination has been made to depose that, "... It is wrong to suggest that workman was working with the management since 2004 ...". But workman neither in the statementofclaim nor in the rejoinder nor in the evidence affidavit gave details of his employment since the year 2004. Also workman has failed to establish on judicial file that M/s. Formulaone Manpower Solutions Pvt. Ltd. and M/s. Formulaone Corporate Solutions Ltd. / M/s. Formula Corporate Solutions India Pvt. Ltd. have been managed / controlled by the same set of persons. As per Ex. MW1/W2x - Memorandum and Articles of Association of Formula Corporate Solutions India Pvt. Ltd., Formulaone Corporate Solutions Private Ltd. was originally incorporated on 28.01.2004 and it was changed to Formula Corporate Solutions India Pvt. Ltd. w.e.f. 20.01.2010. Thus, name of management in the year 2004 was Formulaone Corporate Solutions Private Limited and not Formulaone Manpower Solutions Pvt. Ltd. In the totality of facts and circumstances of this case no illegality, malafides etc. can be attributed on the part of management in retiring the workman w.e.f. 01.07.2010 and workman can be said to have failed to prove his case on judicial file. Reference is accordingly answered against the workman and in favour of management. Parties to bear their own costs. ISSUE No.2: Relief In view of my above findings the workman is held to be entitled to no relief.
10. A copy of the award be sent to the Office of the concerned Deputy Labour Page 21 of 22 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Mohabbat Singh Negi Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 16/12 Commissioner for further necessary action.
11. File be consigned to Record Room after completing due formalities. PRONOUNCED IN THE OPEN COURT ON 29.06.2015.
(ANAND SWAROOP AGGARWAL) POLCXI, Karkardooma Courts, Delhi* Page 22 of 22 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015