Delhi District Court
Parmeshwar Mishra vs M/S Guru Nanak Enterprises on 13 April, 2018
IN THE COURT OF SHRI MOHINDER VIRAT
POLC: DWARKA COURTS: DELHI
In the matter of :
LIR No. 1598/2016
Parmeshwar Mishra
S/o Sh. Harihar Mishra
Through Jai Javan Jai Kisan Export Karamchari Union (Regd.)
362, Bal Mukund Khand, Giri Nagar,
Kalkaji, New Delhi.
...........Workman
Versus
M/s Guru Nanak Enterprises
E 7A/474, Sangam Vihar,
New Delhi.
.....Management
Date of Institution : 15.09.2009.
Date on final arguments heard : 04.04.2018.
Date of pronouncement : 13.04.2018.
AWARD :
1.Vide Order No. F.24(10)/Lab./SD/2008/8527 dated 11.09.2009, issued by the Secretary (Labour), Government of NCT of Delhi, a reference was sent to the Learned predecessor of this Court with the following terms: LIR No. 1598/2016 1/12 "(a) Whether an employeeemployer relationship existed between the M/s Guru Nanak Enterprises and Shri Parmeshwer Mishra S/o Shri Harihar Mishra? (b) and if answer to above question (a) is in affirmative, whether the services of Shri Parmeshwar Mishra S/o Shri Harihar Mishra have been illegally and or unjustifiably terminated by the management; and if yes, to what relief he is entitled and what directions are necessary in this respect?"
2. Claimant's case is that he had been working with the management for the last 3 years as "foreman" and his last drawn salary was Rs. 8,750/ per month. He worked regularly and never gave chance of any complaint to the management. That the management did not issue any appointment letter, pay slip, leave card etc. etc. to the workman despite demand made by the workman many times. Further, when workman demanded the legal facilities, the management became annoyed and the workman was terminated from his services on 06.05.2008 without giving any chargesheet / show cause notice or conducting domestic enquiry and without paying the due earned wages; that the management withheld the earned wages and overtime of the workman for the month of April 2008 and May LIR No. 1598/2016 2/12 2008. Workman send legal demand notice to the management on 10.05.2008 but no reply to the same was given by the management. Thereafter, the workman made complaint to Conciliation officer on 27.06.2008 against the management, which was assigned to Labour Inspector and on the failure report of the Conciliation Officer, present reference has been made to this court by the appropriate Govt. Workman also stated that he is jobless since his removal.
3. Written statement was filed on behalf of the management stating therein that there exits no relationship of employer and employee between the parties as the workman never worked under the direct supervision and control of the management. Hence, he is not entitled to any relief whatsoever.
4. Following issues were framed by the Ld. Predecessor of this court on 10.08.2010:
1. Whether there is no relationship of employee and employer between the claimant/workman and the management, if yes, its effect? OPM
2. Whether the services of the workman have been illegally terminated by the management? OPW LIR No. 1598/2016 3/12
3. Relief.
5. In order to substantiate the case, workman tendered his affidavit in evidence as Ex. WW1/A mentioning all the facts stated in the statement of claim. He relied upon the following documents :
1. Ex WW1/1 is the carbon copy of legal notice dt 10.05.2008.
2. Ex WW 1/ 2 is the postal receipt.
3. Ex WW 1 / 3 is UPC.
4. Ex WW 1 / 4 is a carbon copy of the complaint to Labour Department.
5. Ex WW 1 / 5 is the statement of claim filed before conciliation officer.
6. Ex WW 1 / 6 is the rejoinder filed before the conciliation officer.
6. Percontra, the management examined Sh. Jagmohan Bawa as MW1 who tendered his affidavit in evidence as Ex. MW1/1A. He relied upon the following documents:
1. Ex MW1/1B are the copies of wage payment for the month of January 2008 (OSR).LIR No. 1598/2016 4/12
2. Ex MW1/1C are the copies of wages payment for the month of February 2008 (OSR)
3. Ex MW1/1D is the copy of wages payment rate difference for the month of February 2008 (OSR).
4. Ex MW1/1E is the copy of wage payment for the month of March 2008 (OSR).
5. Ex MW1/1F is the copy of wage payment rate difference (OSR)
6. Ex MW1/1G is the copy of wage payment for the month of April 2008 (OSR).
7. Ex MW1/1H is the copy of wage payment rate difference for the month of April 2008 (OSR).
8. Ex MW1/1I is the copy of wage payment for the month of May 2008 (OSR).
9. Ex MW1/1J is the copy of wage payment for the month of June 2008 (OSR).
10. Copy of form D Vat 07 is Marked A.
11. Downloaded copy of Vat Acknowledgement of the application for amendment is Marked B.
12. Copy of D Vat Form 07 is Marked C.
13. Copy of letter intimated closure of the business to Vat Department dt 28.03.2008 is Marked D. LIR No. 1598/2016 5/12
7. Arguments heard and record perused.
Issue wise findings of this court are as under : Issue No. 1.
8. This issue relates to existence of employeremployee relationship, the onus of which was conferred by the Predecessor of this court upon the management. In order to prove its defence, the management has examined one Sh. Jagmohan Bawa as MW1. In his examinationinchief, this witness has deposed that he is the proprietor of the management and the workman never worked under the direct supervision and control of the management. He has also produced on judicial record the attendance register for the month of January to August 2008. Wage slips for the month of January to June 2008. This witness has further deposed that till the year 2007, the management was operating from Ghitorni Complex and was later shifted to Sangam Vihar. He also deposed that the business of the management finally came to end on 28.03.2008.
In this regard, it be noted that the workman has categorically averred that he has been working with the management since three year and during his service he was never LIR No. 1598/2016 6/12 given any documents by the management and his services have been finally terminated on 06.05.2008.
Here it be seen that the management has cleverly filed the record for year 2008 only and has failed to produce any record prior to the year 2008. Though, from the document marked as MarkC (Collectively) i.e. form DVAT 07 part C, it is Cristal clear that the management was established on 09.05.2001. From the year 2001 to 2007, the management has not filed any record.
Further, MW1 has though admitted that the management was operating from Ghitorni Complex till year 2007 but he has not filed any documents for the year 2007.
Now since no record, prior to the year 2008 has been filed by the management, adverse inference u/s 114 of the Indian Evidence Act has to be drawn against the management and the plea of the workman that no documents were given to him during his tenure of service has to be taken as correct and reliable.
Further, MW1 who is though the proprietor of the management is not himself aware as to whether the attendance of the employees of the management was marked on sheet or in attendance register?
Also, no reliance can be placed on the attendance register and wage slips as these documents does not reflect the LIR No. 1598/2016 7/12 address of the management.
Interestingly, the management witness has admitted the names of certain other workers working with it (as put to him in his crossexamination from the side of the workman). Now the question arises as to why the workman is aware with the names of so many other workers working with the management as admitted by the MW1. The question further arises as to why the present workman will choose to file a case against the present management only and not against so many organizations running at Delhi.
Here it has been vehemently argued on behalf of the management that the stand of workman that he was the employee of the management cannot be relied upon by this court as the workman has not examined any coworker in this regard. Here it be noted that no coworker will come and depose in favour of the workman as he will be having the fear of his own termination while deposing against the management.
The management has further argued that the workman has not filed any document to prove the relationship of employeremployee between the parties. In this regard, it will be suffice to mention that in the statement of claim, the workman has categorically submitted that no documents were ever given to LIR No. 1598/2016 8/12 him during his tenure of service.
AR for the management has also argued that there are certain contradictions in cross examination of the workman regarding date of joining and designation. In this regard, it should be noticed that it is the settled law of the land that minor discrepancies should not defeat the ends of justice moreso in beneficial legislation.
In the light of the aforesaid, issue no. 1 is decided against the management and in favour of the workman. Issue disposed of accordingly.
Issue No. 2.
9. The onus to prove this issue was also conferred by the Predecessor of this court upon the claimant/workman. In order to prove this issue, the workman/claimant has examined himself as WW1. This witness has deposed in his cross examination that he joined the management i.e. M/s Guru Nanak Enterprises in the month of February 2001 at Sangam Vihar, Delhi. He also deposed that at that time nature of work of management was furniture work and he used to work as polish man. He also deposed that he worked for the management from 2001 to 2008 at Sangam Vihar, Delhi address. He has further LIR No. 1598/2016 9/12 deposed that though he did not remember the date when he visited the management in the year 2014 but he has met certain workers working therein in the year 2014. This witness has also deposed that there was no board in the name of management at any point of time. This witness has categorically and confidently deposed that no notice or chargesheet have ever been issued to him prior to his termination. No evidence to the contrary has been led on behalf of the management. Hence, this issue is decided in favour of the workman and against the management. It is held that the services of the workman has been illegally terminated. Issue disposed of accordingly.
RELIEF:
10. The Hon'ble Supreme Court of India in case titled Employers, Management of central P & D Inst. Ltd Vs Union of India & Another, AIR 2005 Supreme Court 633 that "it is not always mandatory to order reinstatement after holding the termination illegal and instead compensation can be granted by the court." Similar views are expressed by Hon'ble Delhi High Court in case titled as Indian Hydraulic Industries Pvt. Ltd Vs Krishan Devi and Bhagwati Devi & Ors. ILR (2007) I LIR No. 1598/2016 10/12 Delhi 219 wherein it is held by the court that "even if the termination of a person is held illegal, Labour Court is not supposed to direct reinstatement along with full back wages and the relief can be moulded according to the facts and circumstances of each case and the Labour Court can allow compensation to the workman instead of reinstatement and back wages."
Now coming to the case in hand, it be seen that the workman/claimant has been terminated illegally and unjustifiably by the management on 06.05.2008. Much time has elapsed since date of his termination, hence, it cannot be presumed that he would remain idle for such a long period. Thus, in such circumstances, I deem it appropriate to grant lump sum compensation to the workman/claimant instead of his reinstatement. Accordingly, I grant a compensation of Rs. 1,30,000/ (Rupees One Lakh & Thirty Thousand only) to the workman/claimant instead of his reinstatement and back wages under the peculiar facts and circumstances of this case, considering the tenure of his service, damages for delay and resultant litigation. The management is also directed to pay Rs 10,000/ to the workman as litigation charges. The amount of LIR No. 1598/2016 11/12 compensation and litigation charges shall be paid to the workman/claimant within one month from the date when this award becomes enforceable failing which the amount shall carry an interest @ 9% p.a. from the date it becomes due till the time it is realized.
11. Award is passed accordingly. Direct reference is answered accordingly.
12. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication.
13. File be consigned to Record Room.
Digitally signed by MOHINDER MOHINDER VIRAT
VIRAT Date: 2018.04.13
Announced in open court ( MOHINDER VIRAT) 16:12:36 +0530
th
On 13 April, 2018 POLC: DWARKA COURTS
NEW DELHI.
LIR No. 1598/2016 12/12