Delhi District Court
Statement Of Claim Was Filed Under ... vs Pvt. Ltd. (Hereinafter Called The on 24 July, 2008
1
IN THE COURT OF MS. REKHA RANI : POLC - XIII :
KARKARDOOMA COURTS: SHAHDARA : DELHI
ID NO.04/2007 Date of Institution : 23.02.2007
Award Reserved on : 30.04.2008
Date of Award : 24.07.2008
BETWEEN
SMT. RAMJAS W/O SH. DURGA PRASAD
C/O BHARTIYA ENGINEERING TATHA GENERAL MAZDOOR
UNION (REGD.)
BHARAT MILL, CHARKHI GATE MARKET,
PLOT NO.1, NEAR D-BLOCK,
KARAMPURA, NEW DELHI-15.
AND
M/S CALCUTTA RUBBER FACTORY PVT. LTD.
A-21, PHASE-2, MAYAPURI,
NEW DELHI-64.
AWARD
1. Statement of claim was filed under section 10(2A) of the
Industrial Disputes Act, 1947 (hereinafter called the Act) by Ramjas
(hereinafter called the Workman) against M/s Calcutta Rubber Factory
Pvt. Ltd. (hereinafter called the Management) pleading therein
following facts:
He worked with the management as a 'Mistri' for 23 years at
the last drawn wages of Rs.1800/- per month. He worked honestly and
diligently and never gave any cause of complaint to the management.
ID NO.04/2007
2
Management did not provide him statutory benefits such as
appointment letter with correct date of entry into the service, overtime
allowance, attendance card, earned and casual leave etc. When he
demanded the same management got annoyed and terminated his
services on 16.04.1995 by taking a false plea that they have closed
down the establishment whereas the management is still functional.
He sent a demand notice to the management on 27.10.1995 by
registered post requesting the management to reinstate him and pay his
back wages but the management did not respond to the same.
Conciliation proceedings failed on account of non cooperative
attitude of the management and the dispute was referred to the labour
court.
He had filed claim against M/s CRF Oddlot Shares Pvt. Ltd.
CRF is short name of M/s Calcutta Rubber Factory. Workman is
uneducated and therefore filed claim against M/s CRF oddlot Shares
Pvt. Ltd. instead of M/s Calcutta Rubber Factory. The case was
referred to the court of Sh. Sanjay Kumar, the then Presiding Officer
Labour Court-II vide ID no.128/97. Management filed written
statement taking plea that the workman never worked with M/s CRF
ID NO.04/2007
3
Oddlot Shares Pvt. Ltd. However, they admitted that he had worked
with M/s Calcutta Rubber Factory. So Labour Court passed an award
against the workman.
M/s Calcutta Rubber Factory and M/s CRF Oddlot Shares
Pvt. Ltd were being run by the same person from the same premises.
The delay in filing the present claim is neither intentional nor wilful.
Workman is unemployed since the date of termination of his
employment. He has prayed for his reinstatement with continuity of
service and full back wages.
2. Management contested his claim vide its written statement. It
is pleaded that the claim is not maintainable against the management as
it was closed in 1995. It is further pleaded that at that time there were
14 workers working with the management and notice under section 25
(FFF) of the Act was given to them. It is further pleaded that closure
was due to pollution under the orders of Hon'ble Apex Court. It is
further pleaded that the workman was offered his legitimate dues as per
law but he declined to receive the same. It is further pleaded that the
claim being belated is not maintainable.
ID NO.04/2007
4
It is further stated that award of Sh. Sanjay Kumar, POLC-II
dated 20.11.2006 operates as resjudicata and present claim is therefore
not maintainable.
It is also pleaded that claim under section 10(2A) of Act, can
be filed only within 12 months from the date of termination of job of
the workman and the present claim filed after 12 months is not
maintainable.
It is denied that statutory benefits were denied to the
workman. It is further pleaded that having refused to receive his dues
workman is not entitled to any relief.
3. Following issues were framed :
1. Whether management was closed in the year 1995 ? if so,
its effect ? OPM
2. Whether the claim is barred by laches ?
3. Whether the claim is barred by principles of Resjudicata
as pleaded in para 3 of page 3 of written statement ?
4. Whether the services of workman were terminated by the
management on 16.04.1995 ?
5. Relief.
ID NO.04/2007
5
4. Workman examined himself as WW1 and thereafter closed his
evidence. Management examined Ranbir Singh, its Director, as MW1
and thereafter closed its evidence.
5. I have carefully perused the material available on the record
and have heard Sh. T. Narain, Learned authorized representative for the
workman and Sh. Y. R. Pahwa, Learned authorized representative for
the management.
ISSUE NO.1
6. Management has pleaded in para 1 page 1 of its written
statement that it was closed in 1995 on account of pollution under
orders of Hon'ble Apex Court. It is also pleaded that notice under
section 25 (FFF) was issued and workers were paid their dues as per
law.
7. There is absolutely no document on record to support the case
of the management. Only one document ExMW1/1 is on record which
was written on 21.12.1996. It reads that factory was closed on
ID NO.04/2007
6
12.04.1995 on account of "Labour Problems". It further reads that
"five workers were paid" and the case of the remaining workers for
payment is "under the concerned authority / court". There is no record
to show as to whom this information was given and when it was given.
8. Apart from this document of the management, which can be
created as and when the management wants, there is absolutely no
record which may prove that the management was closed on
12.04.1995. Even this document ExMW1/1 was written 20.12.1996
i.e. after more than one and half year from the date of alleged closure
of the management.
9. It is mentioned in this document that management was closed
on 12.04.1995 on account of 'labour problems'. Whereas in para 1
page 1 of written statement management stated that it had closed down
"due to pollution under order of Hon'ble Supreme Court".
10. Workman denied that management was closed in 1995. He
stated in his cross examination that management is still functional.
ID NO.04/2007
7
Manageent has not produced any documentary evidence to prove its
closure on 12.04.1995. As such this issue is accordingly decided
against the management.
ISSUE NO.4
11. Workman in para 3 of his statement of claim pleaded that he
was denied statutory benefits such as appointment letter with correct
date of entry in service, attendance card, earned and casual leave and
that when he demanded the same management got annoyed and
terminated his services on 16.04.1995. Management in corresponding
para 3 of its written statement simply stated that statutory benefits as
per law were provided to the workman. It is pleaded that the factory
was closed upon the direction of the Hon'ble Supreme Court. There is
no specific denial that services of the workman were not terminated on
16.04.1995. So it is not in dispute that the workman's employment
came to an end on 16.04.1995. Workman pleaded in para 1 of his
statement of claim that he had worked with the management for 23
years at the last drawn wages of Rs.1800/- per month. The same is also
not disputed in the written statement.
ID NO.04/2007
8
12. In para 5 page 3 of its written statement management has
pleaded that all the workers were paid their dues except the present
workman. In para 1 page 1 of its written statement management
pleaded that present workman was offered his legitimate dues but he
declined to receive the same. Both the allegations of the management
are not proved. Firstly, all the workers were not paid their dues even
by 20.12.1996 as is evident from document of the management proved
as ExMW1/1 which reads that only five workers have been paid and
the case of the remaining workers was still pending. Further, there is
absolutely nothing on record that the workman was offered anything
and he declined to receive the same. In his cross examination a
suggestion was put to the workman which he denied that the
management sent him retrenchment benefits but he refused. This
suggestion at least makes it clear that management is liable to pay
retrenchment compensation to the workman.
13. MW1 Ranbir Singh, Director of the management, in his cross
examination said :
"I sent the payment to the present worker by cheque
by registered post, but worker did not encash the
ID NO.04/2007
9
same."
14. There is absolutely no document on record which may show
that any payment was ever sent to the workman by cheque by
registered post. Infact, it is not even pleaded in the written statement. It
is not clarified as to when and what amount was allegedly sent to the
workman.
15. The document of the management ExMW1/1 reads that
management was allegedly closed on account of "Labour Problems".
It is not a reason beyond the control of the management as envisaged
by proviso to section 25(FFF). So under section 25(FFF) the workman
is entitled to retrenchment compensation as per section 25(F) of the
Act. MW1 in his cross examination admitted :
"It is correct that the workman Ramjas has not got
anything from me."
16. If the termination of an employee is based on no inquiry, no
charge and not by way of punishment, than it becomes a case of illegal
retrenchment. In such case, the Workman will be entitled to
ID NO.04/2007
10
reinstatement with full back wages (Sachiv, Krishi Upaj Mandi Samiti,
Sanawad v. Mahendra Kumar S/o Mangilal Tanwarao, 2004 LLR
405).
17. Management has relied upon documents ExMW1/2 to
ExMW1/19. ExMW1/2 shows payment of salary up to 12.04.1995
which the workman received on 12.06.1995 under protest. ExMW1/3
and ExMW1/4 are dated 23.08.1995 vide which two workers namely
Ram Achal and Ulfat Ali stated that their services were retrenched and
on 23.08.1995 (whereas the management has pleaded that services of
the workers were retrenched on closure of factory on 16.04.1995. This
document read that they were paid their full and final dues pursuant to
settlement with the management. ExMW1/5 and ExMW1/6 show that
the workers Ram Achal and Ulfat Ali were paid in cash in lieu of
cheque. ExMW1/7 and ExMW1/8 are dated 04.08.1997 which show
that workers namely Ram Karan and Ramtej were paid their gratuity
amount. ExMW1/9 is dated 18.10.2000 which reads that Sube Jaan
was paid his full and final dues towards gratuity. ExMW1/10 is dated
26.02.1999 which shows that management paid Rs.8400/- to Ram Tej
ID NO.04/2007
11
towards gratuity. ExMW1/11 and ExMW1/12 shows payment of
Rs.7788/- and 21000/- towards gratuity to Suresh Yadav and Bal
Kishan respectively. ExMW1/13 and ExMW1/14 are dated
31.03.1999 showing payment of gratuity amount to Shiv Prasad Gupta
and Bhandari Ram respectively. ExMW1/15 shows payment of
gratuity amount to Ram Karan on 26.02.1999. ExMW1/16 to
ExMW1/18 are dated 06.03.2005 and ExMW1/19 is dated 10.04.2005.
These documents read that workers Balkishan, Ram Tej, Bhandari Ram
and Shiv Prasad Gupta were paid their full and final dues as per order
of N.K. Sharma, POLC dated 01.08.2003.
18. I fail to understand as to how these documents prove the case
of the management that workman was ever offered retrenchment
compensation and declined the same.
19. Termination of the employment of the workman without any
notice or payment is in violation of section 25F of the Act and as such
void ab initio.
ID NO.04/2007
12
20. This issue is accordingly decided in favour of the workman
and against the management.
ISSUE NO.3
21. Management in its written statement pleaded that the present
claim is barred by resjudicata as earlier claim of the workman was
dismissed vide award of Sh. Sanjay Kumar, POLC-II dated
20.11.2006.
22. In ID no.128/97, Learned POLC-II vide his award dated
20.11.2006 held that there was no relationship of employer and
employee between Ramjas and M/s CRF Oddlet Shares Pvt. Ltd. on
account of which the claim of the workman was dismissed.
23. The present claim is against the management namely M/s
Calcutta Rubber Factory Pvt. Ltd.
24. In his cross examination MW1, who is the director of the
management, admitted that he was the owner of both the companies
ID NO.04/2007
13
namely M/s CRF Oddlot Shares Pvt. Ltd. and M/s Calcutta Rubber
Factory Pvt. Ltd..
25. Workman in his statment of claim has pleaded that he being a
layman filed claim against M/s CRF Oddlot Shares Pvt. Ltd. instead of
M/s Calcutta Rubber Factory Pvt. Ltd. He said that there was some
confusion as CRF is short name of M/s Calcutta Rubber Factory Pvt.
Ltd.
26. Workman being a layman can be confused by somewhat
similar names of two concerns owned by the same person. CRF seems
to be the short name of Calcutta Rubber Factory.
27. The earlier claim was not against the management in the
present case and therefore, the claim of the workman against the
present management was never adjudicated on merits and as such there
is no question of claim being barred by resjudicata.
ID NO.04/2007
14
ISSUE NO.2
28. Management has further pleaded that claim under section
10(2A) of the Act can be filed only within 12 months from the date of
communication to the workman of the order of discharge, dismissal,
retrenchment or termination. It is further pleaded that since the present
claim has been filed after about 12 years from the date of termination
of his employment the same is barred by laches.
29. Workman was earlier pursuing his claim against wrong
management. The said claim was disposed off vide award dated
20.11.2006 and he filed the present claim on 23.02.2007.
30. The interest of justice demand that since the workman has
been pursuing his claim against wrong management the period
involved in adjudication of his claim against wrong person be
condoned. After all he was not sitting silent. He had filed his claim
but on account of reasonable confusion against a wrong person.
31. Learned authorized representative of the management has
ID NO.04/2007
15
relied upon The Mgt. of M/s Indian Iron and Steel Co. Ltd. vs.
Prahlad Singh 2001 LLR 157 in which services of the workman were
terminated in terms of standing orders for not resuming duty on expiry
of leave. Workman raised dispute after 13 years of termination. The
Tribunal held that the workman has lost his lien of appointment in view
of order 10(f) and (h) of Standing Orders. Hon'ble High Court ordered
reinstatement with full back wages. Hon'ble Apex Court held that the
Tribunal was right in not granting any relief both on merit and
staleness of claim.
32. The facts of the cited case are different from the facts of the
present case. In the cited case claim was made after 13 years without
any reasonable ground whereas in the present case workman was
pursuing his claim against wrong respondent which shows that he was
not sitting silent as in the case of the cited judgment. There is reasonable explanation for filing the present claim belatedly. ISSUE NO.5 : RELIEF
33. While adjudicating upon issue no.4 it was observed that it is ID NO.04/2007 16 not in dispute that the workman's services came to an end on 16.04.1995. The same is not disputed by the management in its written statement. Management pleaded that termination of his employment was on account of its closure. There is no such evidence on record that the management was closed. There is further no evidence that the worker was offered retrenchment compensation and he refused to receive the same.
34. Termination of employment of the workman without any notice or payment is in violation of section 25F of the Act and as such is void. As per the management's case workman was entitled to retrenchment benefits. That is why it offered the same to him, although allegedly refused by him. Since termination of the workman is void ab initio workman is entitled to reinstatement.
35. Since the management alleges that it has closed its factory it may not serve any purpose if the workman is ordered to be reinstated. In such a case interests of justice demand that he be paid reasonable compensation.
ID NO.04/2007 17
36. Keeping in view the facts and circumstances of the case I think interests of justice will be met if the workman is granted compensation of Rs.50,000/-(Rupees Fifty Thousands Only) in full and final settlement of his claim. The said payment be made within one month from the date of award failing which the same shall be payable with interest @ 8% per annum from the date of default up to the date of payment of the defaulted amount. Appropriate government be informed. File be consigned to record room.
Announced in the open court PRESIDING OFFICER
today. LABOUR COURT NO. XIII
24.07.2008 KARKARDOOMACOURTS
DELHI
ID NO.04/2007