Delhi District Court
Through vs M/S Sarabjeet Associates Pvt. Ltd on 3 November, 2018
IN THE COURT OF SHRI LOKESH KUMAR SHARMA
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER : LABOUR COURT - XIX
DWARKA COURTS : NEW DELHI
LIR No: 6720/16
Sh. Jagjit Singh
S/o Sh. Harvinder Singh
R/o: H.No. WZ1, L19, 1st Floor,
Street No. 14, New Mahavir Nagar,
New Delhi - 110018
Through
Hindustan Engineering and
General Mazdoor Union,
D2/24, Sultanpuri, New Delhi.
....CLAIMANT
VERSUS
M/s Sarabjeet Associates Pvt. Ltd.
B103/4, Phase - I,
Naraina Industrial Area,
New Delhi - 110028
....MANAGEMENT
Date of institution of the case : 14.07.2015
Date of passing the Award : 03.11.2018
A W A R D
1.A reference dated 21.04.2015 was received for adjudication by this Court which was sent by Dy. Labour Commissioner, under Section 10(1)(c) and 12(5) of I.D.Act, read with Notification no. F.1/31/616/ESTT./2008/7458 dated 03.03.2009, on a complaint filed by Claimant against the LIR No: 6720/16 Page 13 of 13 Management, wherein the following reference was to be answered: "Whether the services of Sh. Jagjit Singh s/o Sh. Harvinder Singh have been retrenched illegally and/ or unjustifiably by the management and if so, to what relief is he entitled?"
2. Notice of reference was issued to Claimant after which the Claimant had appeared and filed his statement of claim, claiming therein, that he had joined the management at the post of Data Entry Operator/ Executive Assistant on 06.01.2006 and his last drawn salary was Rs. 26,500/ per month. The workman was stated to have worked with utmost efficiency, dedication and honesty without affording any chance of complaint to the management of any nature whatsoever. Although his appointment was stated to be at the post of Executive Assistant, however, he was doing the work of skilled category without having any administrative and financial powers, neither he was authorized to appoint anybody nor he was authorized to sanction anybody's leave nor any employee was working under him.
Workman was stated to have deprived of the statutory benefits such as appointment letter, attendance card, overtime, wages slip, ICard, casual as well as earned leaves. That on 09.07.2014, the management had asked the workman to sign on a bond which the workman had termed as "Slavery Bond Agreement" and upon his refusal to do so, LIR No: 6720/16 Page 13 of 13 the management after having levelled false allegations of data theft against him had abruptly terminated the services of workman on 03.11.2014 in an illegal and arbitrary manner.
It was further stated that management had dispensed with the services of workman without any retrenchment compensation as well as had not paid him any leave encashment and bonus etc and therefore, he was entitled to an amount of Rs. 2,58,846/ along with interest thereon at the rate of 18 percent per annum.
A demand notice dated 17.12.2014 was also stated to have been sent by the workman to the management, however, management had neither replied nor complied with the same. Even the proceedings before the Conciliation Officer as well as Labour Commissioner had failed so it was prayed by the workman that the management be directed to pay his legal dues as detailed in para no. 5 of the claim petition.
3. Notice of the statement of claim was sent to the Management which was duly served upon it and Management had also appeared and contested the statement of claim on merits by filing its WS, wherein, it had taken the plea of workman having worked with it only for a period of three years. It was also stated that workman was not able to perform his duties efficiently and used to take frequent LIR No: 6720/16 Page 13 of 13 leaves.
Regarding other paras which were either not specifically admitted or essentially and purely constituted matter of record, same were denied by it as incorrect.
4. Initially the defence of management was struck off due to nonfiling of written statement on time, however, vide order dated 17.12.2016, the management's application for restoration of its defence was allowed after which the WS was taken on record.
5. Workmen had also filed his replication to the said written statement wherein he had denied the contents of WS as wrong and reiterated the contents of his statement of claim as correct.
6. Vide order dated 09.03.2017, ld. Predecessor of this Court was pleased to frame the following issues :
1. Whether the workman has taken full and final settlement? O.P.M.
2. In terms of reference.
3. Relief.
7. In order to discharge the onus of proving the issues, the workman had appeared as his own witness and filed in evidence, his examination in chief by way of affidavit LIR No: 6720/16 Page 13 of 13 Ex. WW1/A wherein he had reiterated the contents of his statement of claim on solemn affirmation. Besides this, he had also placed on record the following documents :
1. copy of the experience certificate of the workman dated 01.11.2014 is Ex. J1;
2. passbook of the workman has been placed on record as Ex. J2;
3. copy of the recovery order dated 27.07.2016 passed by Tehsildaar, Delhi Cantt in favour of the workman as Ex. J3;
4. corrigendum letter dated 28.07.2016 issued to Ex. J3 is Ex. J3(A);
5. copy of the Confidentiality Agreement dated 09.07.2014 is Ex. J4;
6. certain SMS(s), emails and letters exchanged between the parties are Ex. J5 to J15;
7. copy of the reference in this case is Ex. J16;
In his cross examination conducted by ld. AR for the management, it was deposed by the workman that he had received an amount of Rs. 1,69,000/ before the Labour Inspector, Hari Nagar and it was volunteered by him that the same was the amount of his gratuity. Last drawn salary received by the workman was pertaining to September 2014 @ Rs. 37,000/ per month. However, it was admitted and volunteered by the workman that the said amount also included one month's salary in lieu of his notice pay. However, it was denied by him that the aforesaid amount was LIR No: 6720/16 Page 13 of 13 received by him towards full and final settlement of his claims with the management. Sh. Sarabjit Singh Batra was stated to be Director of company whose signatures could have been identified by the witness as well, however, no appointment letter was issued to him by the management. Experience certificate was stated to be carrying signatures of Sh. Sarabjit Singh Batra. Witness has also admitted his signatures at pt. A on document Ex. WW1/D1 and Ex. WW1/D2 and Ex. WW1/D3 which were the photocopies of one receipt executed by the workman dated 03.11.2014 regarding the cheque issued to him along with one incentive slip pertaining to cash payment of Rs. 5,000/ and notice for termination of his service dated 03.11.2014. He had also identified the signatures of Sh. Sarabjit Singh Batra at pt. A on Ex. WW1/D3. It was however denied by him as wrong that his claims were settled as full and final before the Labour Inspector and nothing was due to him from the management's side. Other formal suggestions were also denied by him as wrong and incorrect. Thereafter workman's evidence was closed.
8. In rebuttal one Sh. Harpreet Singh Kohli who was stated to be an employee of the management working at the post of Senior Sales Manager had appeared in the witness box and filed in evidence, his examination in chief by way of affidavit Ex. MW1/A wherein he had reiterated the stand of management as contained in the written statement on solemn LIR No: 6720/16 Page 13 of 13 affirmation stating that since the workman was not performing his duties efficiently hence, the services of workman were terminated. Besides this, he had also placed reliance on the documents Mark A to C which were already exhibited during the cross examination of workman as Ex. WW1/D1 to Ex. WW1/D3.
During his cross examination conducted by Sh Harbinder Singh, father as well as AR for workman, it was deposed by the witness that he had started working with the management as Senior Sales Manager since 07.01.2010 and continued to do the same even on the date of his deposition. A suggestion put to him contrary to this was denied by him as incorrect. However, later on it was admitted by him that he was working with M/s Machine Dealers which was stated to be the trading company of present management itself. However, further it was deposed by the witness that his salary and other perks were being paid to him from the account of present management only. He had also admitted the correctness of order Ex. MW1/WX1 and the payment made by the management to the workman in compliance thereof. No written warning or memo was stated to have been ever issued to the workman regarding his non performance. He had also denied the suggestion as wrong that the workman had not entered into any full and final settlement with the management or that workman was never paid his dues after full and final settlement.LIR No: 6720/16 Page 13 of 13
It was though admitted to be correct by the witness that management had informed its clients in India and abroad not to employ the present workman who was stated to be involved in data theft. Witness could not tell if the management had paid him his bonus for the year 2013 along with his leave encashment or compensation etc in terms of Section 25 of I.D.Act or not. However, the matter was stated to have been settled with the workman in full and final which was duly accepted by the workman himself. Other formal suggestions were denied by him as wrong and incorrect and thereafter management's evidence was also closed.
In the light of the aforesaid testimonies of the witnesses, my issue wise findings are as under: Issue no. 1. Whether the workman has taken full and final settlement? O.P.M. The onus to prove this issue was upon the management who had produced the documents Ex. WW1/D1 which is the copy of receipt executed by the workman in favour of management acknowledging the receipt of the certain amount by way of cheque. However, it shall be pertinent to mention here that the workman during his cross examination had categorically stated that the amount of Rs. 37,000/ received by him from the management had also LIR No: 6720/16 Page 13 of 13 included the amount of one month's salary in lieu of his notice and no contrary suggestion was ever put to him by the management so as to rebut this contention of the workman. Not only this, but also, the management had also admitted and relied upon the fact that an amount of Rs. 1,69,000/ was paid by it to the workman before the Labour Inspector which according to the workman, was stated to be the amount of his gratuity. Hence, had it been the case of a full and final settlement arrived between the parties and there was nothing left out to be paid to the workman, then why the management had paid the aforesaid amount before the Labour office had remained a question which was though required to be answered and explained by the management but it remained unexplained throughout for the reasons best known to the Management.
In view of this, I have no hesitation in holding that all dues of the workman were not settled between the parties in full and final and management had failed to successfully discharge the onus of proving this issue which is accordingly answered in negative and decided in favour of workman and against the management.
Issue no. 2. In terms of reference Whether the services of Sh. Jagjit Singh s/o Sh. Harvinder Singh have been retrenched illegally and/ or unjustifiably by the management and if so, to what relief is he entitled?LIR No: 6720/16 Page 13 of 13
From the language of the issue itself, it becomes amply clear that the onus to prove the same was upon the workman who had stated in his cross examination that no appointment letter was ever issued to him by the management right from the day one of his services till the last date. Not only this, the workman as well as the management both had relied upon the alleged notice of the termination of his services Ex. WW1/D3 vide which the management was stated to have dispensed with the service of the workman with immediate effect after paying of one month's notice salary to him in lieu of the notice period. It is interesting to see that in the absence of having issued any appointment letter to the workman as specifying and defining the terms and conditions governing his service with the management, what prompted the management to have terminated the services of the workman by a written document. It is also not clear as to from where the management had borrowed the connotation of "one month notice pay" being paid to the workman in lieu of waiver of the notice period while terminating his service. Not only this, but also, though the management had taken the plea of unsatisfactory working performance of the workman, however, no previous written warning or notice asking the workman to improve or enhance his performance has been placed on record to support and corroborate its contentions.
So far as the allegations of data theft leveled by LIR No: 6720/16 Page 13 of 13 the management against the workman are concerned, no FIR in this regard was ever lodged by it nor even the Management had ever taken the recourse of redressal of aforesaid grievance before any of the law enforcement agency including the police as well as court of law. Hence, this plea also does not hold water in it about the workman having committed any theft of data as alleged.
Since the terms and conditions of employment of workman were never defined, hence, I have no hesitation in holding that the removal of workman from his service could not be termed as termination or dismissed as mentioned in the said letter Ex. WW1/D3 and at best, it could have been considered only as his retrenchment and that too without giving him any previous warning or caution to improve his performance and efficiency in the specific areas as per the desires and wishes of the management or payment of any retrenchment compensation. This act on the part of the management could not be held to be justified though not illegal. Therefore, this issue is also answered in affirmative and decided in favour of the workman and against the Management.
Issue no. 3. Relief - In view of my findings to the issue(s) no. 1 and 2 above, the statement of claim as filed by the workman is allowed and keeping in view the total length of his service as is reflected from document Ex. J1, which LIR No: 6720/16 Page 13 of 13 was not countered or refuted by the management, the total period of service of workman comes to around 8 years and 10 months which could be easily rounded off to 9 years for the sake of convenience and thus I am of the considered opinion that the workman was entitled to claim and receive four and a month's salary from the management as his retrenchment compensation which comes to Rs. 1,20,000/ (rounded off).
Besides this, it appears that management had contested the present case of workman as a matter of its prestige issue due to which the workman was put under unnecessary mental, physical and emotional harassment and due to which he had litigated for more than three years. Accordingly, management is also directed to pay the workman, a sum of Rs. 30,000/ towards compensation for his mental agony and pain due to present litigation.
Hence, award for an amount of Rs. 1,50,000/ is accordingly passed in favour of workman and against the management. It is further clarified that the said sum shall be payable by the management within a month from the date of publication of this award. In case of default, the said amount shall also carry an interest of 8 per cent per annum till the date of its realization.
Award is passed accordingly and reference LIR No: 6720/16 Page 13 of 13 stands answered in the aforesaid terms. Copy of this award be sent to the Labour Commissioner for publication. Case file be consigned to record room.
ANNOUNCED IN THE OPEN COURT DATED: 03.11.2018 Digitally signed by LOKESH LOKESH KUMAR KUMAR SHARMA Date: 2018.11.03 SHARMA 12:35:59 +0530 (LOKESH KUMAR SHARMA) ADDL. DISTRICT & SESSIONS JUDGE PRESIDING OFFICER LABOUR COURT XIX DWARKA COURTS : DELHI LIR No: 6720/16 Page 13 of 13