Delhi District Court
Sh. Sunil Aggarwal vs . M/S. Sahara India Parivar Did No. 10/07 on 17 March, 2012
Sh. Sunil Aggarwal Vs. M/s. Sahara India Parivar DID No. 10/07
IN THE COURT OF DR. P S MALIK THE PRESIDING OFFICER
IN
LABOUR COURT XI, KARKARDOOMA COURTS, DELHI
Computer ID No. 02402C0007912007
Type of Case Direct Industrial Dispute
Date of Institution 04.01.2007
Evidence concluded on 12.09.2011
Final arguments heard on 27.02.2012
Date of Award 17.03.2012
WORKMAN Vs. MANAGEMENT
Sh. Sunil Aggarwal S/o Jagat Raj 1. The Regional Manager / Area
Gupta, R/o A - 12, Flat No. C - 3, Officer, M/s. Sahara India
Durg Mahendergarh Apartments, Pariwar , Area Office, 3rd Floor,
Shalimar Garden Extension - II, Building No. 2, Harman Plaza,
Ghaziabad, U.P. West Patel Nagar, New Delhi.
2. M/s. Sahara India Pariwar,
Sahara India Bhawan, 1,
Kapurthala Complex, Lucknow,
U.P. Through its Managing
Director.
PRESENT:
None for the parties.
AWARD :-
1. The claimant namely Sunil Aggarwal filed this direct industrial dispute before this
court U/S 10 (4A) of the Industrial Disputes Act against the respondent /
Management M/s. Sahara India Pariwar.
2. As per claim the claimant Sunil Aggarwal was appointed by the respondent / Management M/s. Sahara India Pariwar on 10.03.1994 as an "Officer" at Gandhi Nagar branch. He worked there as a "Branch AWARD Page 1 of 12 Sh. Sunil Aggarwal Vs. M/s. Sahara India Parivar DID No. 10/07 Manager" upto 08.10.1998. Thereafter he was transferred to Kalkaji branch. He claimed to have achieved commendable targets at all his places of posting / working. He was suspended in the year 2002 and continued to be under suspension until 18.06.2004. A warning / reinstatement dated 25.06.2004 was issued to this claimant and he stated to have joined his services on 19.07.2004. On 29.03.2005 he was transferred to Chandigarh regional office. He took transit leave from 16.05.2005 to 21.05.2005. He joined his services as Chandigarh office until 23.05.2005 due to some physical ailments. Some more letters were exchanged between this claimant and the Management. But as per claim subsequently he was not allowed to join his duties after 23.05.2005. Thereafter the claimant got a demand notice issued on 01.05.2006 and completed other legal formalities to raise and bring this industrial dispute in this court for adjudication.
3. A written statement / reply was filed on behalf of the respondent / Management with preliminary objections that this court had no territorial jurisdiction to entertain the present claim; that the claimant was not a workman U/S 2 (s) of the Industrial Disputes Act. The case of the claimant was denied on merits and it was pleaded that this claimant was placed under suspension on account of some financial irregularities committed by him. After considering the replies of this claimant the suspension was revoked on 25.06.2004 and a warning was issued to him. The respondent / Management had also pleaded that after his transfer to Chandigarh regional office, he delayed his joining there on one or the other pretexts. For this reason a show cause notice was issued to this claimant on 08.07.2005. As per the respondent / Management after considering all the replies and conduct of this claimant his services were dispensed with vide letter dated 17.011.2005.
4. In this background of the pleadings of the parties, the Ld. Predecessor vide its orders dated 24.01.2009 framed the following issues :
1. Whether this court has territorial jurisdiction to entertain the present claim?
2. Whether claimant was not covered under the definition of workman under the Industrial Disputes Act?
3. Whether the services of the claimant were terminated AWARD Page 2 of 12 Sh. Sunil Aggarwal Vs. M/s. Sahara India Parivar DID No. 10/07 illegally and / or unjustifiably and if so to what relief was he entitled?
4. Relief.
5. The claimant examined him as WW1 and almost reiterated his claim. He relied upon 26 documents. Ex. WW1/1 is the copy of letter dated 08.08.2002 written by the claimant to the respondent / Management. Ex. WW1/2 is the copy of letter dated 08.08.2002 written by the claimant to the other department of respondent / Management. Ex. WW1/2 is the original show caused notice given by the respondent / Management to the claimant and Ex. WW1/4 is the copy of its reply given by the claimant. Ex. WW1/5 and Ex. WW1/6 are the original office orders dated 25.06.2004. Ex. WW1/7 is the original warning letter received by the claimant from the respondent / Management. Ex. WW1/8 is the copy of the joining report dated 19.07.2004 of the claimant. Ex. WW1/9 is the original office order dated 22.01.2005. Ex. WW1/10 is the copy of office order dated 29.03.2005. Ex. WW1/11 is the copy of letter dated 21.04.2005 requiring no dues certificate from the claimant. Ex. WW1/12 is original relieving letter dated 03.04.2005. The copy of joining letter of claimant dated 14.05.2005 at Chandigarh is Ex. WW1/13. Ex. WW1/14 is the original leave application of the claimant dated 02.06.2005 with copy of his medical report and fax report. The original letter regarding leave application of the claimant dated 13.06.2005 is Ex. WW1/15. Ex. WW1/16 is the original notice dated 08.07.2005 received by the claimant from the respondent / Management and copy of its reply to this notice by the claimant along with three postal receipts is Ex. WW1/7. Ex. WW1/18 is copy of another reply dated 14.07.2005 by the claimant to Ex. WW1/15. Ex. WW1/19 is copy of an application of claimant dated 21.07.2005 along with 3 postal receipts and fax receipt. Ex. WW1/20 is copy of letter for joining dated 08.08.2005 written by the claimant to the respondent / Management. Leave application of the claimant along with fitness certificate is Ex. WW1/21. The copy of another application dated 08.08.2005 written to top Management for joining along with four postal receipts is Ex. WW1/22. The copy of another letter written to top Management for joining along with 2 postal receipts and one UPC receipt is Ex. WW1/23. Ex. WW1/24 is the copy of legal notice. Ex. WW1/25 is AWARD Page 3 of 12 Sh. Sunil Aggarwal Vs. M/s. Sahara India Parivar DID No. 10/07 original letter dated 12.12.2004 written to the respondent / Management by the claimant. Ex. WW1/26 is another original letter dated 14.05.2003 written to the respondent / Management by the claimant.
6. During the cross - examination a direct question was asked by the respondent / Management to this witness that the witness had pleaded in his claim to have worked as a Branch Manager upto 08.10.1998, but in the evidence affidavit he deposed to have worked as a Branch Worker. The witness was asked to explain the correct proposition regarding his post of working. The witness stated that whatever he deposed in the court was correct.
7. During the cross - examination he admitted to have worked at Chandigarh office till 14.05.2005. Ex. WW1/M1x is the photocopy of his joining at Chandigarh office. This document bears his signatures at point 'X'. He further stated to be on a sanctioned leave from 16.05.2005 to 21.05.2005. He admitted that he did not work with the respondent / Management at Chandigarh office after 21.05.2005. Voluntarily he stated to have informed the respondent / Management at Chandigarh and Area Office at Delhi through fax that he would be on medical leave thereafter. But he could not show any sanction received from the respondent / Management thereby approving his medical leave after 21.05.2005.
8. During the course of cross - examination this claimant admitted to have taken loan in the sum of Rs.1,00,000/ from the Bank of Maharashtra in the year 2003. In his cross - examination this witness further admitted his signatures at point 'A' on Ex. WW1/M4x. This document Ex. WW1/M4x is an explanation purportedly furnished by the claimant to the respondent / Management regarding default in repayment of personal loan amount of Rs.1,00,000/ from the Bank of Maharashtra.
9. The respondent / Management examined one Sh. Sharad Chandra Srivastava as MW1 who was an Assistant Manager in the respondent / Management M/s. Sahara India Pariwar. He relied upon a document Ex. WW1/M3x containing about 39 pages. This document Ex. WW1/M3x shows the performance of the claimant in the office. This witness further exhibited a document Ex. MW1/1. This is a letter dated 17.11.2005 dispensing ther services of the claimant. The record of attendance of the claimant for the months of May, 2005 to July, 2005 was exhibited as Ex. MW1/2. During his cross -
AWARD Page 4 of 12Sh. Sunil Aggarwal Vs. M/s. Sahara India Parivar DID No. 10/07 examination it became clear that the documents Ex. WW1/M1x, Ex. WW1/M2x and Ex. WW1/M3x show this claimant as a Senior Officer in the Management's establishment.
10. The respondent / Management also examinaed one Mr. Rahat Hussain Khan as MW2. He was working as a Branch Manager in the Bank of Maharashtra, Asaf Ali Road, Delhi. He expressed his unability to produce the record of loan taken by the claimant from his bank. He stated that it was not available. However, he stated that the document Ex. MW2/1 was issued through his branch. This document Ex. MW2/1 is a letter dated 22.12.2004 purportedly written by an Assistant General Manager, Bank of Maharashtra to Sh. R. S. Dubey, Assistant General Manager, Sahara India thereby requesting a cooperation in realizing the loan amount taken by Sh. Sunil Aggarwal. He also requested a cooperation from the addressee in getting it realized from the guarantor one Sh. Dinesh Sharma an another employee of Sahara India also.
11. From the material available on record and the pleadings of the parties, it appears that the respondent / Management is having a well built corporate structure. This structure of the respondent / Management is well diversified into Central Office, Regional Offices, Area Offices and Branch Offices. The documents were scribed by the people like Assistant Director Worker in Human Resosurce Department, Head Office or Area Manager Worker, Area Office. In the entire evidence of the respondent / Management, it has not disclosed its identity. It is not clear as to who is appearing on behalf of the respondent / Management and who is authorizing an advocate appearing on behalf of the respondent / Management.
12. As per public information available "Sahara Pariwar" is an Indian conglomerate company head quartered in Lucknow, Uttar Pradesh, India. Its diversified business has interest in financial service, housing finance, mutual funds, life insurance, city development, real estate activities, print and television media, film production, sports, information technology, health care, tourism, hospitality and consumer products.
13. The claimant impleaded the respondent / Management as M/s. Sahara India Pariwar i.e. a limited company. This court has seen the material available on record. There is not even a single piece of paper showing AWARD Page 5 of 12 Sh. Sunil Aggarwal Vs. M/s. Sahara India Parivar DID No. 10/07 that the written statement or the so called Management's affidavit was really filed by the respondent / Management Company. It appears to have been filed by some "Management" with illegible signs. Similarly MW1 Sh. Sharad Chandra Srivastava has no where filed any authorization from the Board of Directors / Managing Director / Directors of this company. He has not filed any Resolution of any Board of Directors of the said respondent / Management company. There is no Articles of Association showing the constitution of the Board of Directors. Everything has been kept in dark.
14. The Management has not given a chance to this court to look into the fact as to who is defending this claim of the workman. Everything cannot run by presumption. It cannot be presumed here that whoever appeared in the name of the respondent / Management was really the respondent / Management.
15. A company is a legal persona and has a definite identity. There is a specific legal procedure to be followed by a company in instituting / defending legal claims. But the same has not been duly followed here in this case. There is no linkage between the legal persona impleaded in these proceedings and the people contending that they were appearing for this legal persona. Link or relation of this nature cannot be thrust forcibly by the appearing persons.
16. This court has no objective mechanism to ascertain the identity of the person or persons who apparently defended or tried to defend this claim.
17. It is not sufficient for a party just to file an authorization in Form 'F' Industrial Disputes Act. That party has to give its identification and authentication also. The party which authorizes its attorney / AR to appear before this court has to give its own particulars also. For each party e.g. a natural person, a legal person, a society, a trust, a limited company or a private limited company, this requirement of identification may vary. But in all cases, it is a sine qua non so that the court is in a position to identify the parties and ascertain that the proceedings before it are not collusive in nature. In the present case, the respondent / Management has totally failed in giving any identification of its authenticity or genuineness.
18. This view of this court is also substantiated by Part 16 Instructions AWARD Page 6 of 12 Sh. Sunil Aggarwal Vs. M/s. Sahara India Parivar DID No. 10/07 to Civil Courts in Delhi Delhi High Court Rules. The observations of this court are in tandem with Rules contained therein.
19. The same is the intention of the legislature enshrined in Section 119 CPC where all unauthorized persons are restrained from addressing the courts during adjudication.
20. Conversely, this evidence in the name of the Management's evidence does not bind the respondent / Management itself. In case any adverse order is passed against the Management, then no law would make that adverse order binding on the Management because legally the Management had not participated nor did anyone appeared in this case on behalf of the Management. Consequently, if the evidence led by the Management is taken on record, it would simply pave the way for this Management to accept or reject the court's verdict, and that too as per its own choosings. This evidence does not bind the respondent / Management.
21. In these circumstances, this court has no hesitation in rejecting this piece of evidence led by the so called Management as being inadmissible in law. It is totally insufficient to link it to the respondent / Management which is in fact a company i.e. a person incorporate.
22. The evidence of the Management has been rejected for the reasons as aforesaid.
Now the evidence in this case is that led by the claimant only. This court has to see if the case is proved only on the basis of the evidence tendered by the claimant. This court would would consider that aspect of evidence which was obtained during the cross - examination of the claimant.
ISSUE NO. 1 :
22. In this issue this court has to adjudicate upon the factum if his court does not have a territorial jurisdiction to entertain the present claim.
23. In this case the respondent / Management's case has already been discarded by this court. But otherwise also there is sufficient material available on record to show that this court in Delhi has a territorial jurisdiction to adjudicate upon this industrial dispute. This is undisputed that at the time of termination of service, the claimant was working at regional office at Chandigarh. His joining report there i.e. Ex. WW1/M1x is available on AWARD Page 7 of 12 Sh. Sunil Aggarwal Vs. M/s. Sahara India Parivar DID No. 10/07 record. But it is also similarly undisputed that this regional office Chandigarh was subordinate to the area office at Delhi. In a similar manner as the regional office at Delhi was subordinate to the area office of Delhi. Hence from the material available on record, it is clear that both the regional offices at Chandigarh and Delhi were subordinate to the area office situated at Delhi.
24. Even letters and documents were referred to the area office at Delhi, therefore, there is no prejudice caused to either of the parties, if the other one has instituted a legal claim in any of the two alternative courts having territorial jurisdiction i.e. the courts at Delhi and the courts at Chandigarh. It was simply a matter of choice for the one to institute this industrial dispute. Hence this issue is held to be "Not Proved" by the Management.
ISSUE NO. 2 :
25. In this issue this court has to adjudicate upon the factum if the claimant was not covered under the definition of workman under the Industrial Disputes Act.
26. During the course of his cross - examination on 18.10.2010 it was specifically admitted by the claimant that a Branch Manager was over all incharge of the concerned branch and he used to exercise all the powers related to that branch. These powers extended from managing the daily affairs of the branch including disbursing the salary of the employees. He used to sign the cheques issued on behalf of that branch. He also used to recommend leaves and loans of the employees working in that branch.
27. All the documents that pertained to this claimant while he was working as a Branch Manager in Delhi prior to his suspension and reinstatement and transfer to the Chandigarh branch show him as a Branch Manager Worker.
28. During the course of arguments it was argues that "Worker" is a suffix which every officer or workman in the company used to wear. It was a symbolic respect given to the work in the daily routine of the Management's establishment. It is a common practice in that establishment to use words like General Manager Worker, Assistant Director Worker , Senior Officer Worker, Branch Manager Worker etc. This court has entertained a view that AWARD Page 8 of 12 Sh. Sunil Aggarwal Vs. M/s. Sahara India Parivar DID No. 10/07 this suffix "Worker" in the designation of peopl in Management's establishment is independent of the meaning given to 'workman' in Section 2 (s) of the Industrial Disputes Act. These both are unrelated nomenclatures and concepts.
29. In the present case, the claimant although has been using the word "Senior Officer Worker" in his designation. This suffix "Worker" is merely a symbolic expression and has nothing to do with his official powers, privileges and responsibilities. What reverberates the true meaning to the designation of the claimant as "Senior Officer". It shows that he was senior among other officers. No evidence has come on record which could show the precise extent and scope of powers and duties of a senior officer in a branch. (This includes those circumstances in which the evidence of the Management was discarded).
30. The lengthy sets of arguments were put forward by both the parties but those thousands words could not substitute the need of a well defined admissible proof that can establish the real nature of the work, powers, privileges and responsibilities of a Senior Officer in the Management's establishment. Although the claimant in his cross - examination had admitted to be having a power of recommending leave applications etc. and disbursing salaries of the branch employees but it was never shown by any piece of evidence that he was in a physical / official capacity to control and supervise the work of other employees who were junior to him.
31. It has been shown on record by the claimant that he performed some outstanding duties and achieved some targets as a Branch Manager. But even in that case also he was not in a position to assess the work of his junior colleagues. The entire work of this claimant and other pear workers of that branch was assessed by some higher authorities. This claimant was questioned by those higher authorities on some points which those higher authorities called a 'financial irregularities.' The merits of those 'financial irregularities' is not a subject matter to be adjudicated here by this court, but it shows that even work done by this claimant and his peers was assessed by someone else who was superior to him. He did not assess as an authority any work of any employee junior to him.
32. All these observations show that this claimant was not a Manager or a Supervisor as defined in Section 2 (s) (iv) of the Industrial Disputes Act. He is not debarred from seeking relief under the provisions of the AWARD Page 9 of 12 Sh. Sunil Aggarwal Vs. M/s. Sahara India Parivar DID No. 10/07 Industrial Disputes Act. Hence this issue is also decided as "Not Proved" by the respondent / Management.
ISSUE NO. 3 :
33. In this issue this court has to adjudicate upon the factum if the services of the claimant were terminated illegally and / or unjustifiably by the Management.
34. From the pleadings and evidence available on record it is clear that the relations between the claimant and the respondent / Management were not very cordial. These were a bit strained. Even in the year 2002 a show cause notice Ex. WW1/3 was given to this claimant for the reasons which that notice termed as the "financial irregularities". The claimant furnished a reply Ex. WW1/4. The respondent / Management was alleged to have suspended this claimant, but subsequently he was reinstated with a warning issued to him by the respondent / Management. This court has observed that the episode of those financial irregularities and pursuant action came to an end through this letter of reinstatement of the claimant back in his service. After that the claimant was transferred to the Chandigarh Branch Office vide letter dated 29.03.2005 and this letter is Ex. WW1/1. This claimant joined the Chandigarh office vide his joining report Ex. WW1/M1x and thereafter he proceeded on leave and did not join the Chandigarh office after 21.05.2005. (An admission during his cross - examination).
35. Apparently there is no relations between these two episodes of his service tenure i.e. first one at Delhi prior to his reinstatement and the second one at Chandigarh office after his reinstatement and transfer. As per record during this period of suspension this claimant had applied a loan from Bank of Maharashtra on the strength of some documents which were subsequently found as to have been forged by this claimant. A letter written by this claimant to the General Manager Worker, Human Resource Department, Head Quarter dated 22.02.2005 which was received by the respondent / Management on 05.03.2005, is available on record which is Ex. WW1/M4x. This letter is in the form of confession as to how he procured that loan from the Bank of Maharashtra. In doing so he took the services of some intermediaries to which he admitted to have paid a professional fees also.
AWARD Page 10 of 12 Sh. Sunil Aggarwal Vs. M/s. Sahara India Parivar DID No. 10/07
36. This confessional letter in itself is sufficient to show that this claimant engaged himself in defrauding the Bank and obtained through this illegal means a sum of public money in the nature of personal loan.
37. In its content this letter is very emotional. It portrays a set of circumstances in which this claimant faced a time of mental agony, dispair and social humiliation etc.; he anticipated the future of his family being spoiled. In such a combination of circumstances he resorted to have some monetary gain and in doing so he took the services of a broker; forged some documents and procured a loan of Rs.1,00,000/ from the Bank.
38. From the contents of this confessional letter, it is apparent that offences punishable under I.P.C. were being committed by those who wrote it. But the intention and the objectives of the perpetrators were quite clear. They cannot be covered up under a well sophisticated syntax of Idioms and / phrases.
39. When the deeds of this claimant came to the notice of the respondent / Management, a show cause notice bearing no. 03/271307 dated 03.02.2005 was served on this claimant. His termination of services was consequent to these such activities of fraud and forgery.
40. This is well settled a proposition of law that those who seek protection of law must respect it. A person who was committing such frauds and forgery and that too with a feeling of impunity, as it is evident from the nature of explanation dated 22.02.2005 i.e. Ex. WW1/M4x can not come and move a court to extend its protection to save him from the lawful consequences of what he did in his turn.
41. Hence this court holds that the guilt of this claimant is clear and evident from the material available on record by him. Even without going into the details of the allegations and defences by the respondent / Management the termination of claimant's services does not appear to be illegal and unjustified. This issue is hence decided accordingly.
RELIEF :
42. In view of the findings of this court on the issues no. 1, 2 and 3 the claimant is held to be not entitled for any relief.
AWARD Page 11 of 12 Sh. Sunil Aggarwal Vs. M/s. Sahara India Parivar DID No. 10/07
43. A copy of this order be sent to the office of the Labour Commissioner for necessary action.
44. The original documents be returned against acknowledgment back to the party which has filed them and further subject to the filing of the certified copies of the same.
45. File be consigned to the Record Room after completing due formalities. ANNOUNCED IN THE OPEN COURT ON 17.03.2012.
AWARD Page 12 of 12