Delhi District Court
Dinesh S/O. Sh. Ram Lakhan vs M/S. Anil Arora on 30 November, 2015
Dinesh Vs. M/s. Anil Arora ID No. 83/11
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. 83/11
UNIQUE CASE IDENTIFICATION NO. 02402C0091362011
In the matter of :
Dinesh s/o. Sh. Ram Lakhan,
R/o. RZ- 470/318, Gali No. 7,
Gitanjali Park, West Sagarpur,
New Delhi-110046.
C/o. Rashtriya Rajdhani Sheshtra Engineering & General Mazdoor Union(Regd.),
C-139, Karampura, New Delhi-110015
......... Workman/Applicant
Vs.
M/s. Anil Arora,
3/86, Ramesh Nagar,
3rd Floor, New Delhi-110015 ..........Management
Date of Institution : 17.03.2011
Date of reserving for award : 26.10.2015
Date of award : 30.11.2015
AWARD :
1.Vide Order No. F-3(680)/Ref./WD/LAB/197 dated 04/03/2011 Deputy Labour Commissioner (West District), Labour Department, Government of N.C.T. Of Delhi referred following industrial dispute between workman and management 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 services of Sh. Dinesh S/o Sh. Ram Lakhan 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?"Page 1 of 15 (Anand Swaroop Aggarwal)
POLC XI/KKD/Delhi /30.11.2015 Dinesh Vs. M/s. Anil Arora ID No. 83/11
2. CASE OF THE WORKMAN AS PLEADED IN THE STATEMENT OF CLAIM.
(i) Workman was working with the management with hard labour and honesty on the post of 'Fitterman' for 07 years with his last drawn salary of Rs. 6448/-.
(ii) Work of the workman during his service tenure was always good and satisfactory. Management was not given any opportunity to have any complaint against him. For this reason management never put any charge on the workman.
(iii) During the service tenure the management had not provided appointment letter, attendance card, ESI card, pay slip, earned leave, casual leave etc., which are available to the workman under the labour laws. Even the name of the workman was not written in the attendance register nor workman was being paid wages on wages register.
(iv) Workman was continuously making oral demand for legal facilities as abovesaid and management, having annoyed on this account, did not pay salary to the workman for the months of May and June, 2010.
(v) When on 10.07.2010 workman demanded salary for the months of May and June, 2010 the management angrily terminated the services of the workman on 10.07.2010.
(vi) Since 10.07.2010 till 20.09.2010 workman regularly visited the management for work and for taking his salary but the management neither paid salary to the workman nor took the workman on duty.
(vii) On 20.09.2010 workman through union made a written complaint to the Asst. Labour Commissioner, Labour Office, Karampura, New Delhi. On the instructions of the Asst. Labour Commissioner, Labour Inspector Mr. P.P.Sikri, through notice called the management on 01.10.2010 in the labour office and discussed with Mr. Anil Arora the issues of payment of salary for the months of May and June, 2010 and reinstatement of workman in previous service. During the discussion, management refused to pay the salary and reinstate the workman in service. Management even did not appear in the labour office on 08.10.2010 with record of its employees.
(viii) On 15.10.2010 workman sent a demand notice to the management raising a demand for salary for the months of May & June, 2010 and reinstatement in the service Page 2 of 15 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Dinesh Vs. M/s. Anil Arora ID No. 83/11 with back wages and all legal facilities but management did not reply the demand notice.
(ix) Workman filed claim for recovery of salary from 01.05.2010 till 10.07.2010 before the Authority under the Shops and Establishment Act, 1954 which is pending adjudication.
(x) Workman through union raised an industrial dispute before Conciliation Officer. Management intentionally did not participate in the conciliation proceedings. As the matter could not be settled, Conciliation Officer furnished failure report u/s. 12 (4) of Industrial Disputes Act, 1947 to his superior officers. Hence, this reference.
(xi) The act of the management in, all of sudden, terminating the services of the workman on 10.07.2010 is illegal, unreasonable and unjustified inasmuch as before terminating the services of the workman management nor served any notice nor paid notice pay in lieu of notice nor served any chargesheet nor conducted any domestic inquiry nor paid any notice pay/retrenchment compensation etc. under the provisions of 25 F of the Industrial Disputes Act, 1947.
(xii) During his service tenure of 7 years the workman worked for more than 240 days in each calendar year.
(xii) Workman is unemployed since 10.07.2010. Despite much efforts the workman did not get any service. Workman is able to make both ends meet with the help of his brother and other family members.
With these averments the workman prayed for an order directing the management for making payment of salary from 01.05.2010 to 10.07.2010. Also workman prayed for an award in his favour and against the management directing the management to reinstate the workman in service with continuity of service and full back wages w.e.f 10.07.2010 alongwith all legal facilities.
3. STAND OF MANAGEMENT AS PLEADED IN WRITTEN STATEMENT OF DEFENCE.
PRELIMINARY OBJECTIONS (1) The reference made by Deputy Labour Commissioner, Govt. of NCT of Delhi is totally misconceived, untenable and without application of mind inasmuch as the applicant is not a Page 3 of 15 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Dinesh Vs. M/s. Anil Arora ID No. 83/11 'workman' as defined in the Industrial Disputes Act, 1947 and, therefore, there is no question of alleged termination of services of applicant and hence the terms of reference is void abinitio and is liable to be dismissed.
(2) There was no relationship of workman and employer between the applicant and the management and there is no industrial dispute in existence between the parties as per the provisions of Industrial Disputes Act, 1947.
ON MERITS Management in the WS, while denying the case as pleaded by the workman in the statement of claim, pleaded that applicant had never worked with the management under the employment of the management; rather applicant was working under the employment of Ram Murat at his house and applicant used to do the job of assembling radio assigned by Ram Murat at his house and applicant was being paid by Ram Murat and not by management. The applicant was the workman of Ram Murat and not of the management and there is absolutely no relationship of workman and employer between the applicant and the management. There was no fixed salary of applicant as alleged and he was being paid by Ram Murat. Applicant is not a 'workman' and there is no relationship of workman and employer between the parties. The present false petition has been filed by applicant on the asking and instigation of Ram Murat only to harass the management. Management further pleaded that question of keeping good behaviour and any complaint against his work culture does not arise as applicant never remained in the employment of the management and, thus, applicant is not entitled to any legal facilities as alleged.
There is no question of any termination of services of the applicant as he was not a workman of the management. Management denied the averments made by workman regarding complaint dated 20.09.2010 & proceedings pursuant thereto and, rather, pleaded that Conciliation Officer in the labour department had adopted completely biased attitude against the management and management was not given proper hearing and management had given his detailed reply to the Conciliation Officer but the same was not taken on record by the Conciliation Officer rather the management was forced by the Conciliation Officer to sign on some blank documents/papers given by them. Management denied dispatch of legal notice dated 15.10.2010 by the workman and its service upon the management. Management also submitted that copy of said notice dated 15.10.2010 has not been supplied to management with the claim petition. Management denied the averments of the workman regarding pendency of claim before the Authority under the Shops and Establishment Act, 1954, and pleaded that Page 4 of 15 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Dinesh Vs. M/s. Anil Arora ID No. 83/11 same cannot be replied without copy of the same. Management also denied that applicant worked for 07 years and for 240 days in a calander year. Further management pleaded that applicant is gainfully employed and doing the work as already mentioned. At last management prayed for dismissal of the claim petition filed by the workman.
4. REJOINDER In rejoinder, workman denied the case as pleaded by management in its WS and reaffirmed the averments made in statement of claim.
5. ISSUES On 30.01.2012 following issues were framed :-
(i) Whether there existed any relationship of employer and employee between the management and the workman? OPW/OPM.
(ii) As per terms of reference.
(iii) Relief, if any.
6. EVIDENCE :
Workman appeared in the witness box as WW-1 Dinesh Kumar by tendering his examination-in-chief vide affidavit Ex. WW1/A. Workman relied upon documents namely Ex. WW1/1- Statement of claim filed before Conciliation Officer; Ex. WW1/2- Application dated 29.11.2006; Ex. WW1/3- Complaint dated 20.09.2010 made through union to the Asst. Labour Commissioner; Ex. WW1/4- Report (dated 09.11.2010) of the Labour Inspector Mr. P.P.Sikri; Ex. WW1/5- Demand Notice dated 15.10.2010; Ex. WW1/6- Postal Receipt dated 16.12.2010. Workman in his cross-
examination was confronted with document namely Ex. WW1/M1X (colly. 3 three pages)- Leaflet. WE was closed on 30.01.2013 by ARW.
Management examined MW1 Mr. Anil Arora who tendered his examination-in- chief vide affidavit Ex. MW1/A and relied documents already exhibited as Ex. WW1/M1X- (colly. 3 three pages)- Leaflet. ME was closed on 31.07.2013 by ld. Counsel for the management.
7. APPLICATION OF WORKMAN SEEKING PRODUCTION OF RECORDS FROM THE MANAGEMENT.
On 24.03.2014 workman moved an application seeking production of records Page 5 of 15 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Dinesh Vs. M/s. Anil Arora ID No. 83/11 namely (i) Appointment letter of workman; (ii) Attendance card of workman; (iii) Muster roll of management; (iv) Wages register; (v) Workman's application for job;
(vi) Pay slip & Leave record; (vii) Any written agreement, (viii) Records related to ESI & PF and (ix) Registration of management from the management. Instead of filing formal reply to this application on 07.06.2014 Mr. Anil Arora made the following statement:-
''Statement of Mr. Anil Arora S/o Mr. Sant Ram Arora.
On SA I state that workman was not my salaried employee.
Accordingly, there was no occasion at all for me to maintain the documents, as detailed in the application moved by workman, as regards the workman. During the alleged service period of the workman as mentioned in the application workman never worked under me as my employee. Therefore, I am not able to produce any of the documents as sought by the workman.'' This application of workman was dismissed vide detailed order dated 04.07.2014 .
8. ARGUMENTS I have heard Mr. Kirori Lal AR for workman and Mr. Gautam Pal Adv. for management. Ld. ARW relied upon case laws reported as Public Works Department Vs. Dev Sukh & others 2004 LLR 158 and Automobile Association of Upper India Vs. PO Labour Court II & Anr. 2006 LLR 851.
Ld. Counsel for the management relied upon case laws reported as (i) Chintaman Rao and Anr. vs. State of Madhya Pradesh AIR 1958 Supreme Court 388;
(ii) Mangal Prasad Vs. Management of M/s. Modern Food Industries and Anr. 2012 (4) JCC 2566 and (iii) Anukampa Enterprises Vs. Shri M M Faridi: DOD 18.10.2006 by Hon'ble Mr. Justice Shiv Narayan Dhingra, Judge, High Court of Delhi. I have gone through the material available on judicial file and the case laws very carefully. I have given a thoughtful consideration to the facts and circumstances of the case as arise on the basis of material available on judicial file.
9. My ISSUE-WISE findings are as under :-
Issue No. 1 Page 6 of 15 (Anand Swaroop Aggarwal)POLC XI/KKD/Delhi /30.11.2015 Dinesh Vs. M/s. Anil Arora ID No. 83/11 Whether there existed any relationship of employer and employee between the management and the workman? OPW/OPM.Issue No. 2
As per terms of reference.
(Whether the services of Sh. Dinesh S/o Sh. Ram Lakhan 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?) Here, as per workman, workman was working with the management on the post of 'Fitterman' for 7 years and his services were illegally terminated on 10.07.2010 in violation of provisions of Section 25 F of the Industrial Disputes Act, 1947.
Management in the WS pleaded that workman/applicant never worked with the management in the employment of the management and rather applicant was working under the employment of Ram Murat at his house and applicant used to do the job of assembling radio assigned by Ram Murat at his house and applicant was being paid by Ram Murat and not by management. The applicant was the workman of Ram Murat and not of the management and there is absolutely no relationship of workman and employer between the applicant and the management. There was no fixed salary of applicant as alleged and he was being paid by Ram Murat. Applicant is not a 'workman' and there is no relationship of workman and employer between the parties. The present false petition has been filed by applicant on the asking and instigation of Ram Murat only to harass the management.
NOW undoubtedly initial onus is on the workman to prove his case as pleaded by him in the statement of claim. Workman is supposed to discharge this onus on the basis of principle of preponderance of probabilities. No straight jacket formula exists to determine as to whether workman has been able to discharge this initial onus or not and each case deserves to be considered/decided on the basis of peculiar facts and circumstances of each case as emerging out on the basis of entire material available on judicial file. It is the duty of the court to scrutinize the facts from all angles to come to a conclusion as to whether the pleas advanced by the workman or the management are worth reliance by the court, while the court acting as a reasonably prudent person, keeping in view the totality of facts and circumstances of the case by particularly Page 7 of 15 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Dinesh Vs. M/s. Anil Arora ID No. 83/11 keeping in mind as to whether the workman or the management has been able to prove/substantiate the case as pleaded in the statement of claim/written statement of defence by leading cogent and convincing evidence. While appreciating the evidence led by the parties, court is bound to keep in mind that neither party can be expected to lead the evidence which such party, quite possibly in a given factual situation, cannot lead on judicial record. Nobody can be compelled to do a thing which he/she cannot possibly do in a given factual situation.
What is to be noted is that despite specific averments/depositions of the workman that workman was working with the management for 7 years, management in the WS did not specifically plead as to for what period of time workman/applicant worked under the employment of Mr. Ram Murat in terms as pleaded by the management in the WS. Management has not even pleaded that management was not even in the existence/not running the business at the point of time when workman might have joined the management in terms of averments made by the workman in the statement of claim.
Workman in his cross-examination has deposed as under:
".....I have not placed any document on record showing the length of my service with the Management firm. I have also not placed any document on record showing my working with the Management for 240 days in a calender year. I also did not file any salary slip and wages register etc. on judicial file. Vol. The Management did not provide me the same despite repeated demands.
I joined my services with the Management in June, 2003 as a Fitter....."
What deserves to be noted is that the management has not pleaded/led evidence as to what employees were employed by the management and what record the management maintained qua such employees. Management has also not pleaded/led evidence that it provided/maintained all the records as has been referred in the above referred cross-examination of the workman in respect of employees which management admittedly employed as its employees. Management has not even pleaded that it never employed any employee. In this background, to my mind failure on the part of the workman to produce documentary proof regarding his employment with the management in the form of salary slip, wages register cannot be said to be fatal to the Page 8 of 15 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Dinesh Vs. M/s. Anil Arora ID No. 83/11 case of the workman.
Also workman in his cross-examination deposed as under :-
"......I have placed on record document Ex. WW1/2 showing my working with the Management and the said document bears the signatures of the proprietor of the Management Sh. Anil Arora at point A. It is correct that there is nothing written on the document Ex. WW1/2 that I was working with Sh. Anil Arora and that the name of the Management is written on the same as M/s. S.S. Electronics including the period of my employment with it. Vol. Firstly the Management was under the name of Sh. Anil Arora and later on it was transferred by his father in the name of Anil Arora. I cannot tell as to when the same was transferred in the name of Anil Arora.
It is correct that there is no mention about M/s. S.S. Electronics in my claim petition as well as in my evidence affidavit. I have also not placed any document on record in this regard. At present the Management is in the name of Anil Arora.....".
As per management Ex. WW1/2 contains forged and fabricated signatures of Sh. Anil Arora. It is noted that summons served upon Mr. Anil Arora, memo. of appearance and letter of authority filed on his behalf have been signed in full by signing as Anil Arora. Ex. WW1/2 also contains signature as Anil Arora in full. But Mr. Anil Arora signed the WS, evidence affidavit and his evidence by signing as 'Anil' only. The facts suggest that after coming to know that workman is relying upon Ex. WW1/2 signed by Mr. Anil Arora in full, Mr. Anil Arora started to sign as 'Anil' subsequently to make an impression that Ex. WW1/2 has not been signed by him. This fact coupled with the fact summons served upon Mr. Anil Arora, memo. of appearance and letter of authority filed on his behalf bear signature in the same manner as signature is there on Ex. WW1/2, suggest that in all likelihood Ex. WW1/2 bear the signature of Mr. Anil Arora. It is alright that it is not mentioned in Ex. WW1/2 that workman was employed by S.S. Electronics or Anil Arora but one fail to understand, had workman not been employed, as such, there was no occasion for Anil Arora to sign on Ex. WW1/2. Presence of Ex. WW1/2 in original before this court is also immaterial as workman has deposed that he gave photocopy of this document in the school of his son. Non-examination of any witness from the school is also immaterial in the facts and circumstances of this case. Signature of Anil Arora on Ex. WW1/2 with the name of S.S. Electronics (New Delhi) 3/86, Ramesh Nagar on Ex. WW1/2 suggest that quite Page 9 of 15 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Dinesh Vs. M/s. Anil Arora ID No. 83/11 possibly initially name of firm was S.S. Electronics and later on it was changed to the name of Anil Arora. Absence of pleadings as regards S.S. Electronics is also not to much consequences inasmuch as even the management had full opportunity to bring on record its stand in that regard and no prejudice in any manner can be said to have been caused to management in any manner for want of pleadings of workman qua S.S. Electronics.
MW1 Mr. Anil Arora in his cross-examination deposed as under:
".....It is wrong to suggest that in June, 2003 workman Dinesh started service under me at a monthly salary of Rs.3600/- It is wrong to suggest that workman Dinesh was working under me for assembling 2, 3, 5 band transistor radio and FM. (Vol. Workman Dinesh never worked under me and I used to give material for assembling to Sh. Ram Murat and he used to get the work done through, inter alia, workman Dinesh and I used to pay to Ram Murat for the work done by him.)................................ There was no written agreement between myself and Ram Murat. (Vol. He used to take material from me for assembling and return me the assembled goods.).......".
It is noteworthy that workman is not able to produce documentary evidence as suggested to him in his cross-examination and, equally, even the management is not able to produce documentary evidence to support the stand taken by it in the WS. As per management workman has filed this case at the asking/instigation of Ram Murat only to harass the management but management has not even pleaded as to there existed any dispute between the management and Ram Murat so as to motivate Ram Murat to instigate workman to file a false case. Somewhat inconsistent with the stand taken by management in the WS, workman has been made to depose as under:-
"......It is wrong to suggest that I used to take raw material from Sh. Anil Arora and used to assemble the same as radio at the house of co-workman Sh. Ram Murat and used to handover the complete radio sets to Sh. Anil Arora and used to take the payment through Ram Murat...."
Thus, management can be said to have failed to establish on judicial record the stand taken by it regarding employment of workman by Ram Murat.
Workman in his cross-examination has been made to depose as under:-
"......At this stage a document Ex. WW1/M1x has been put to this Page 10 of 15 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Dinesh Vs. M/s. Anil Arora ID No. 83/11 witness. This witness admits the document Ex. WW1/M1x bears his name at point A. Vol. The document Ex. WW1/M1x does not bear my own handwriting but the same was written by Sh. Anil Arora in his own handwriting in my presence. The words written on Ex. WW1/M1x as '3B' and '5B' specifies 3 bands and 5 bands of radio set. How many pieces I prepared in a date with specific date have been mentioned on the document Ex. WW1/M1x. I was working with the Management on monthly salary basis. It is wrong to suggest that I was working with the Management not on salary basis but I was working there at part time and piece rate..."
MW1 Mr. Anil Arora relied upon Ex. WW1/M1X in his evidence affidavit. MW1 Mr. Anil Arora deposed as under:-
"....It is correct to suggest that in my affidavit there is reference to payment to Dinesh on piece rate basis. (Vol. Kindly read my complete sentence from A to A in my affidavit Ex. MW1/A.). I used to pay Rs.16/- per piece to Ram Murat. There is no documentary proof on record regarding the aforesaid per piece rate....."
The last suggestion given to workman in his cross-examination reproduced hereinabove is somewhat not consistent with the stand taken by management in the WS. If workman was employed by Ram Murat and not by management herein, there was no reason for the management to maintain document like Ex. WW1/M1X. The possibility of management maintaining document like Ex. WW1/M1X cannot be ruled out altogether even if workman was employed on monthly salary basis. This document contains details qua other persons also. May be that by preparing this document management wanted to know as to how many radios were assembled by each person. And the employment of workman on piece rate basis does not take out the case of the workman altogether beyond the provisions of section 2 (s)/25 F of the Industrial Disputes Act, 1947.
Workman in the statement of claim made specific averments regarding complaint dated 20.09.2010 made to Asst. Labour Commissioner and proceedings conducted by Labour Inspector pursuant to said complaint. Management baldly denied these averments made by workman and rather pleaded that Conciliation Officer in the labour department had adopted completely biased attitude against the management and management was not given proper hearing and management had given his detailed reply to the Conciliation Officer but the same was not taken on record by the Page 11 of 15 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Dinesh Vs. M/s. Anil Arora ID No. 83/11 Conciliation Officer rather the management was forced by the Conciliation Officer to sign on some blank documents/papers given by them but MW1 Mr. Anil Arora regarding the conciliation proceedings in his cross-examination deposed as under:-
".......Que. : It is put to you that workman Dinesh had initiated proceedings before the conciliation officer and you did not attend the said proceedings?
Ans. : As and when I used to receive notices, I attended the labour office at Karampura.
Court Que. : Kindly tell as to when you visited the labour office at Karampura and appeared before which office / officer?
Ans. : I do not remember the dates of my visits to the labour office and also I do not remember the name of the officer. I visited the labour office on about 15 - 16 times.
I did not file any reply in the labour office to the statement of claim filed by the workman Dinesh....".
Above depositions made by MW1 Mr. Anil Arora are contradictory/inconsistent with the stand taken by the management in its WS to the effect that management had given detailed reply to the Conciliation Officer but the same was not taken on record by the Conciliation Officer.
MW1 Mr. Anil Arora regarding proceedings of the Labour Inspector deposed as under:
".....Que. : It is put to you that on 20.09.2010 workman made a complaint to labour office at Karampura and thereafter labour inspector Sh. P.P. Sikri had visited you business premises on 01.01.2010?
An. : It is correct that labour inspector Sh. P.P. Sikri had visited my business premises.
Que. : It is put to you that in the presence of Sh. PP. Sikri you admitted that workman Ram Murat is working under you since last 3 and a half years and Kuber is working under you since two and a half years?
Ans. : It is wrong to so suggest. It is wrong to suggest that I had also admitted that Raju Bhaskar was working under me as a fitter. It is wrong to suggest that I had told in presence of the labour inspector that I would settle the matter with the workman.
Que. : It is put to you that labour inspector had called you in his office on 08.10.2010 and you did not attend the office?
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Ans. : I do not remember as matter is old....."
In view of above depositions report Ex. WW1/4 cannot be discarded. Workman is relying upon demand notice dated 15.10.2010 Ex. WW1/5 dispatched to management vide postal receipt dated 16.10.2010. Ex. WW1/5 mentions correct address of management. MW1 Mr. Anil Arora in his cross-examination deposed that, ''......I did not receive the letter Ex. WW1/5...''. It is alright that postal receipt dated 16.10.2010 does not mention the complete/detailed address of management but that does not mean that workman never dispatched the demand notice to management inasmuch as, as a practice postal department does not mention the detailed/complete address as mentioned on the envelope on the postal receipt. Also it is noteworthy that there is no cross-examination of workman regarding dispatch of demand notice. Original postal receipt is available in connected ID No. 80/11 titled as Raju Bhaskar Vs. M/s. Anil Arora. Thus, management can be taken to have been served with demand notice dated 15.10.2010 but management did not reply the demand notice and adverse inference may be drawn against the management on that account in the totality of facts and circumstances of this case.
Here there is no admission on the part of the management regarding management employing any employee during the period (alleged) of the employment of the workman by the management. Thus, workman cannot be asked to produce co- employee as a witness to support the case of workman as pleaded in the statement of claim.
Discrepancy in mentioning the last drawn salary of workman in Ex. WW1/5 and Ex. WW1/1 does not go to the root of the matter in the totality of facts and circumstances of this case. The depositions made by workman that. ''...I used to make the radio in its complete body....''. does not benefit the management in any manner. The fact that workman did not make any complaint with any authority against the management for its non providing the workman legal facilities like appointment letter, casual leaves etc. does not in any way affect the case of workman in the totality of facts and circumstances of this case.
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In view of above detailed discussion it is observed that as the workman has led evidence which workman could have led in the facts and circumstances of this case and pleadings of management in the WS are contradictory/inconsistent with the evidence on record, the preponderance of probabilities suggest that case as pleaded by workman in the statement of claim regarding his employment by management and illegal termination of his services by management is worth reliance by this court. Thus, issue no. 1 is decided in favour of workman and against the management. The case laws relied upon by ld. Counsel for management do not help the management in the totality of the facts and circumstances of this case.
MERELY because management terminated the services of workman in violation of provisions of section 25 F of the Industrial Disputes Act, 1947 does not mean that workman is automatically entitled to be reinstated in service with full back wages. Each case deserves to be decided keeping in view specific facts and circumstances of the case. Whether workman is entitled to reinstatement with or without back wages or lump-sum compensation is a matter of discretion of this Court (Four Judges Bench Judgment in United Commercial Bank Ltd. Vs. Secretary, U.P. Bank Employees Union and Ors. AIR 1953 SC 437 relied upon). Here management is a sole proprietorship concern. Also keeping in view the stand taken by management in the WS, in my considered opinion, order for reinstatement of workman in service with the management may not result in co-ordial industrial relations between the management and the workman. Hence, no case for reinstatement of workman in service with the management is made out.
Workman in the statement of claim pleaded that workman is unemployed since
10.07.2010 and despite much efforts the workman did not get any service and, that, workman is able to make both ends meet with the help of his brother and other family members. Except the vague/bald averments no material has been brought on record by workman to prove these averments. Workman is having vast experience in his field of workman and cannot be believed to be totally unemployed/not earning anything throughout uptodate since the date of termination of his services. Workman has not even examined any of his family members. Workman in his cross-examination Page 14 of 15 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Dinesh Vs. M/s. Anil Arora ID No. 83/11 deposed as under:-
''.......I am a married man. My family consists of myself, my wife and my three school going children. The total monthly expenditure of my family is about Rs. 7000/-. As I am unemployed at present, my wife use to bear the same by doing the household work in the nearby houses. I tried to search for a job for myself at Kirti Nagar, Mayapuri, Patel Nagar etc. but could not get a job for myself...''.
Workman has not examined his wife. There is nothing on judicial file to show that workman made serious sincere efforts to get alternative service after is services were terminated by management. Hence workman is held to be not entitled to full back wages.
In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the tune of Rs. 90,000/- (Rs. Ninety Thousand Only) to the workman for illegal/unjustified termination of his services by the management and for consequences thereof / back wages would meet the ends of justice. If this amount of Rs. 90,000/- (Rs. Ninety Thousand Only) is not paid to workman within one month of award coming into force management shall be liable to pay interest @ 9% per annum on this amount from the date of the award till its payment. A sum of Rs. 20,000/- (Rs. Twenty Thousand Only) is also awarded to workman as costs of litigation payable by the management. ISSUE NO. 2 IS DECIDED ACCORDINGLY.
ISSUE NO. 3: Relief, if any.
AS ABOVE
10. Copy of the award be sent to Office of the concerned Deputy Labour Commissioner for further necessary action.
11. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 30.11.2015.
(ANAND SWAROOP AGGARWAL) PO-LC-XI, Karkardooma Courts, Delhi Page 15 of 15 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015