Delhi District Court
The Brief Facts Of The Case vs Britannia Biscuits Co. Ltd on 24 May, 2007
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IN THE COURT OF MS. DEEPA SHARMA: PRESIDING
OFFICER: LABOUR COURT-XI : ROOM NO.45:
KARKARDOOMA COURTS: DELHI.
I.D.NO. 295/2004 (OLD ID NO. 336/1988)
BETWEEN
The management of
M/s. Madan Leathers,
6009, Arya Samaj Road,
New Delhi-5.
AND
Its workman
Shri C.L. Seth
As represented by
The Mercantile Employees Association,
H-347, New Rajinder Nagar,
New Delhi-60.
AWARD
Secretary (Labour) Delhi Administration has referred
this dispute arising between the parties named above for
adjudication to this Labour Court vide notification No.
F.24(1105)/88-Lab/9997-10002 dated 19/05/1988 with the
following term of the reference:-
"Whether Sh. C.L. Seth has left the job at
his own 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?
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1.The brief facts of the case, as per the Statement of Claim, are that the claimant had been in the employment of the management since March, 1981 and was working as an Accountant and drawing the monthly wages of Rs. 2,000/-, divided between M/s. Madan Leather, Delhi; M/s. Madan Leathers, Sonepat and M/s. Goldie Garments, Delhi. That the claimant is the member of Mercantile Employees' Association. That the management terminated the services of the claimant w.e.f. 01.04.1986 in violation of provisions of section 25-F of Industrial Disputes Act. It is submitted that the termination is illegal and amounts to unfair labour practices and the claimant is entitled for reinstatement with all consequential benefits including the wages for the intervening period. He filed a complaint before Mercantile Employees' Association dated 10.11.1986 and a demand notice dated 11.11.1986 was sent to the management through registered post. He raised a dispute before Conciliation Officer. It is prayed that the management be directed to reinstate him with all consequential benefits including wages for the intervening period.
2. The claim is contested by the management. It is submitted that the management is engaged in trading of leather and for the said purpose have an office situated at 6009, Arya Samaj Road, Dev Nagar, Karol Bagh, New Delhi. That the -3- claimant Sh. C.L. Seth was engaged in the vocation of maintenance of accounts and undertakes to maintain the accounts books of various firms and he is a professional in maintaining accounts and had a wide clientage. He was maintaining management's books and accounts also and was being paid Rs. 400/- per month. During the period January, 1986 to March, 1986, he came to the establishment only for 5 to 6 times and thereafter stopped coming, though the management sent messages to come and complete the accounts books. It is submitted that the claimant raised the present dispute with the sole purpose to harass the management. It is submitted that the claimant is a professional Accountant engaged in maintaining the books for his numerous clients and thus the relationship of employer and employee does not exist between the parties. It is further submitted that he used to visit the premises of the management at his own convenience twice/thrice in a week and in order to maintain the accounts books and remained in the office for less than an hour. It is denied that he was being paid Rs. 2,000/- per month divided between the managements of M/s. Madan Leathers, Sonepat and M/s. Goldie Garments, Delhi. It is submitted that he is not a workman within the meaning of Industrial Disputes Act.
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3. The claimant filed its Rejoinder in which he has denied the contentions in the Written Statement. It is submitted that the management is a group of four partnership firm and all of them have same partner namely Sh. Ram Parkash Thukral and his sons namely Sh. Arun Kumar Thukral, Sh. Lalit Kumar Thukral and Sh. Deepak Kumar Thukral. The details of the activities of the firm is as under :-
Sl. Particulars Remarks
No.
1 Madan Leather, Bahalgarh Road, Here we have our
Sonepat (Haryana). Leather Tannery
2 Madan Leathers, 6009, Arya Samaj Here we deal in all
Road, Dev Nagar, New Delhi-5. types of Leather. 3 M/s. Goldie Garments, 6009, Arya Here we are Samaj Road, Dev Nagar, New Delhi- manufacturing
5. Leather goods like Leather Garments, Ladies Hand Bags, Brief Cases, Shoes, etc. We specialise in Snake Skin Articles.
4 Remauldy's, 285, Palika Bazar, Here we have a Connaught Place, New Delhi-1. Show Room/ Sales Depot for all types of leather goods.
5 Total investment in the Business The total investment in this business is approx. Rs. 9 lakhs.
4. The workman has also given the total turnover of the various firms which are as under -
01.04.1979 to 31.03.1980 Rs. 16,67,846.55/- 01.04.1980 to 31.03.1981 Rs. 23,90,987.26/- -5- 01.04.1981 to 31.03.1982 Rs. 47,67,858.33/-
5. It is further submitted that he has been employed by the principal employer i.e. M/s. Madan Leathers at 6009, Arya Samaj Road, Dev Nagar, Karol Bagh, New Delhi and he used to devote more than 8 hours in a day for maintaining the accounts. It is denied that he was a part time employee. It is submitted that the Written Statement of the management is liable to be rejected.
6. On the pleadings of the parties, following issues were framed by my Ld. Predecessor on 05.04.1991 :-
1. Whether the claimant is not a workman under Industrial Disputes Act, 1947? BOM.
2. Relief as per reference.
7. The workman has examined himself and the management has examined two witnesses. All the witness have been duly cross examined. I have heard the arguments and have perused the relevant records and my findings on all the issues are as under.
8. In the present case, the claimant has claimed himself to be a workman of the management of M/s. Madan Leathers situated at 6009, Arya Samaj Road, Karol Bagh, New Delhi and -6- has alleged that the management is the principal employer and it has other partnership concerns at Sonepat of the same name i.e. M/s. Madan Leather and M/s. Goldie Garments, Delhi, where father and sons were the partners and that he was employed by the management and he was made to work at other sister concern at Sonepat as well as at M/s. Goldie Garments, Delhi, and he was paid the monthly salary of Rs. 2,000/-. The case of the management is that he was a professional Accountant who used to work for different firms and that his services were also employed by the management on the basis of contract and that he used to work for the managements as per his own choice and he had no fixed hours of his working with the management and that the management had no control over his work and so he was not a workman within the meaning of Industrial Disputes Act and there exists no relationship of employer and employee. From these contentions of the parties, one thing that emerges is that the workman had worked for the management. The workman has clearly stated that he had been regularly working for the management and as per the directions of the management he used to work for the other sister concerns of the management i.e. M/s. Madan Leathers at Sonepat and M/s. Goldie Garments, Delhi. During the cross examination, the workman has also admitted of having work with M/s. Hipnotics situated at Ashok Hotel and he has volunteered that it is also a -7- company of the management. The management witness MW1 has admitted that M/s. Hypnotique pertains to his brother, therefore this company also pertains to be of the family member of the senior partner of the management whose name is disclosed by the workman in his Rejoinder as Sh. Ram Parkash Thukral and which fact had not disputed by the management at any point of time. The management witness has also admitted in his cross examination that the claimant was maintaining the accounts of Sonepat and Delhi units of M/s. Madan Leathers and was also maintaining the accounts of M/s. Goldie Garments. He has further stated, in his cross examination, that he and his father whose names have been disclosed by him as Sh. Ram Parkash Thukral used to give instructions to the workman as to how to maintain the accounts of M/s. Madan Leather, Delhi and Sonepat. He has also volunteered that his brother was the owner of M/s. Goldie Garments and he might have given instructions in this regard. This management witness has further stated that the claimant used to maintain the cash book, ledger, sales register, stock register bills and cash memo on daily basis for both M/s. Madan Leather, Sonepat and Delhi. This statement of MW1 demolishes the case of the management that the workman used to work on contract basis as he used to perform his duties as and when he had desired and had no fixed time. This witness has clearly stated that the workman used to -8- work on daily basis for both M/s. Madan Leathers, Sonepat and Delhi. He has also admitted that accounts of salary used to be put on cash book and ledger on these instructions. He has further stated that as per his knowledge his father used to give instructions to the workman for maintaining the records in respect of two units of M/s. Madan Leathers and has further stated that the workman was looking after the sales books and income tax matters of their concerns. MW1 has further stated in his cross examination that the workman was regularly working in another concern of his brother namely M/s. Goldie Garments. The management witness MW2 has also stated that the accounts of M/s. Goldie Garments were maintained at 6009, Arya Samaj Road, Dev Nagar, Karol Bagh, New Delhi, which is the office address of the management. This witness has further stated that the workman was employed in M/s. Goldie Garments as an Accountant. The evidence of the management witnesses conclusively prove that all the three concerns named by the workman i.e. M/s. Madan Leathers, Sonepat; M/s. Madan Leathers, New Delhi and M/s. Goldie Garments, New Delhi were family member's partnership concern including Sh. Ram Parkash Thukral and his sons Sh. Arun Kumar Thukral, Sh. Lalit Kumar Thukral and Sh. Deepak Kumar Thukral and that they also had other company in the name of M/s. Hipnotics and the workman was directed to maintain the accounts of these 4 -9- concerns and he was regularly working for these companies and was also paid accordingly. The evidence of these witnesses further prove that the workman was working under the supervision and instructions of the senior partner of the concern i.e. Sh. Ram Parkash Thukral and he used to perform the duties of any of these concerns as per the directions of Sh. R.P. Thukral. He was although appointed with M/s.Madan Leathers, 6009, Arya Samaj Road, Dev Nagar, Karol Bagh, New Delhi, he was made to work for the other partnership concerns of the same group of partners. This evidence conclusively proves that the claimant was in the employment of the management and was working on daily basis under the supervision of the management. I hold that the claimant was a workman within the meaning of Industrial Disputes Act and there exists relationship of employer and employee between the parties.
9. The workman has clearly stated that his services were terminated by the management w.e.f. 01.04.1986 by refusing duties. The management has not proved on record anything to show that the retrenchment compensation or the notice pay was paid to the workman. The workman, as per his undisputed contentions, joined the management in March, 1981. the workman has clearly proved that his termination is illegal. The management has tried to prove that it has closed down but no -10- cogent evidence has been proved on record to show that the management has closed down. The matter however, pertains to the year 1988 and almost 20 years have passed. The workman has also not contended in his Statement of Claim that he had remained unemployed after the termination of his services. It is a settled law that when there is no contention, no amount of evidence can prove the fact which had not been contended.
10. It has been held by the Hon'ble Supreme Court in the case Shankar Chakravarti Vs. Britannia Biscuits Co. Ltd. And another 1979 (30) FLR 70. In this case, the Hon'ble Supreme Court has followed its earlier findings given in the case Tin Printers (Pvt.) Ltd. Vs. IT 1967 LLJ 677 SC. In both these cases, the Hon'ble Supreme Court has observed that :-
"the allegation which is not pleaded, even if there is evidence in support of it, cannot be examined and if there is no pleading, there is no question of proving something which is not pleaded and this is a very elementary principle and is also applicable in the Industrial adjudication."
In case Bondar Singh and others Vs. Nihal Singh and others (2003) 4 SCC 161 that :-
"it is a settled law that in the absence of a -11- plea no amount of evidence led in relation thereto can be looked into".
11. In the present case, there is no pleading of the workers that they had remained unemployed after termination of their services. The evidence produced by them therefore cannot be looked into.
12. The Hon'ble Supreme Court in the case of Ram Ashrey Singh and Anr. V. Ram Bux singh and Ors., 2003(2) LLJ 106 has further observed that:-
"When fixing the back wages several factors need to be noted. It is a well settled position in law that on reinstatement there is no automatic entitlement to full back wages."
13. It is also a settled law that initial burden is upon the workman to prove that he had remained unemployed.
14. The Hon'ble High Court of Delhi in a recent judgment 2006 (II) AD (DELHI) 225, has after taking into consideration the judgments in cases; Mohan Lal Vs. The Management of M/s Bharat Electronics Ltd. AIR 1981 Supreme Court 1253; -12- Manorma Verma (Smt.) Vs. State of Bihar & Others 1994 Supp (3) SCC 671; M/s Gammon India Ltd. Vs. Sri Niranjan Dass 1984 (1) SCC 509; Narotam Chopra Vs. Presiding Officer, Labour Court & others 1989 Supp (2) SCC 1997 and Hindustan Tin Works Ltd. Vs. Its employees AIR 1979 Sc 75; Delhi Consumer Cooperative Wholesale Stores Ltd. Vs. Secretary (Labour) and etc. 1983 Labour and Industrial Cases 1652 and Hridayanand Vs. G.P. Stores, Allahabad & others 1996 LLR 433; State Bank of India Vs. Ram Chandra Dubey and others 2000 VIII AD (SC) 608; Food Corporation of India Workers Union Vs. The Food Corporation of India and Another JT 1996 (6) SC 424; Haryana Urban Development Authority Vs. Devi Dayal 2002 II AD (SC) 603; Indian Railway Construction Co. Ltd. Vs. Ajay Kumar 2003 II AD (SC) 655; Hindustan Motors Vs. Tapan Kumar Bhattarcharya & Another 2002 VI AD (SC) 14; MP State Electricity Board Vs. Smt. Jarina Bee JT 2003 (5) SC 542 has laid down the following general principle of law as under:
"If the workman wants to claim back wages, it is for him to assert that he has remained unemployed after his termination therefore initial burden is upon him.-13-
15. Since the workman has nowhere contended that he had remained unemployed after his termination, he is not entitled for any back wages. Moreover, it is common knowledge, that accountants hardly remain unemployed.
16. Keeping in view all the facts and circumstances of the case, I award a compensation to a sum of Rs. 25,000/- (Rupees Twenty Five Thousand) to the workman. Announced today. Award is passed accordingly. File be consigned to record room. DATED: - 24.05.2007 (DEEPA SHARMA) PRESIDING OFFICER:
LABOUR COURT NO.XI:
KKD COURTS:DELHI.
(Six separate copies attached)