Delhi District Court
Workman vs . on 20 December, 2011
IN THE COURT OF SH. MAHAVIR SINGHAL: POIT,
KARKARDOOMA COURTS, DELHI
Comp No. 62/05
Workman
Sh. Banwari Lal s/o Sh. Mohar Singh, r/o F 32, Sector 9, New Vijay Nagar,
Ghaziabad, UP, working as DSM at Okhla Mode CNG Station, Mathura
Road, New Delhi, represented by Vyapar Tatha Udyog Karamchari Sangh,.
Vs.
Management
1. M/s Indraprastha Gas Limited through its Managing Director Sh. Anil
Kumar De.
2. Sh. Devashish Bhrama G.M. (H.R.)
3. Sh. Sanjay Singh, D.M. (H.R.)
4. Sh. Vikas Upadhyay
5. Sh. Harjinder Singh, at Indraprastha Gas Limited, 14th and 15th Floor,
Dr. Gopal Das Building, Barakhamba Road, New Delhi
Date of institution 28.02.2005
Date of reserving award 07.12.2011.
Date of award 20.12.2011
AWARD
1. Workman has filed the present complaint u/s 33-A r/w Section
25M, 25Q, 33, 31 and 32 of Industrial Disputes Act for altering the
conditions of service and reducing the salary of workmen/complainant and
lay off the workman during pendency of Industrial Dispute No.99/03
before this Hon'ble Court.
Comp No.62/05 Page 1 of 9
2. It is stated in the present complaint that I.D. No.99/03 is pending
before this Tribunal for regularisation of workman with management no.1.
It is stated that complainant was employed with management no.1 as DSM
(Driver Way Salesman since 28.4.2000 on regular basis at a salary of
Rs.3980 pm and that complainant alongwith other workmen has preferred
an industrial dispute no.99/03 for regularization of his service with
management no.1. It is further submitted that another industrial dispute
No66/03 regarding general demand on behalf of complainant alongwith
other workmen is also pending before Labour Court. It is submitted that
workman is a handicapped person and working to the satisfaction of
management. Management in order to pressurize the complainant to leave
the job and resign from the service has indulged in the following practices
namely:
1. Salary has been reduced substantially from
Rs.3980 to Rs.3029 without any show cause
notice or giving opportunity of being heard.
2. Workman is being abused in full public by
calling him as Tunda by Mr. Vikas Upadhyay
regularly.
3. Management is not providing employment to
him for more than 7-8 days in a month which
is violation of Section 25M of I.D. Act and
that full salary is also not being paid to him
for last three months and deduction was made
for the period he was not provided work. It is
submitted that management is, therefore,
liable to be punished u/s 25Q of the I.D. Act.
Comp No.62/05 Page 2 of 9
4. That when the complainant protested the
action of Sh. Vikas Upadhyay, respondent
no.4, he was told that either complainant withdraws from the court cases and also discontinue from the membership of the union or face current situation or leave the job.
3. It is submitted that action of respondents of reducing the salary without giving him notice is malafide and that this step has been taken during the pendency of Industrial Dispute, and as such, it is in violation of Section 33 of I.D. Act, as the same amounts to change to service condition. It is, therefore, prayed that action of respondents of reducing the salary be held illegal and original salary be restored. It is also prayed that respondent be directed to pay back all the wages for the period workmen was not provided work. Costs of the application has also been prayed for.
4. In reply filed by the respondent/managements no.1 to 4 to the present complaint, it is claimant was never engaged by management no.1, but was engaged by contractor namely M/s Ruby Enteprises. It is submitted that respondent no.2 to 4 are executives of respondent no.1 and as such claim against respondents no.2 to 4 is baseless. It is submitted that complainant has made respondent no.5 as a party, who is a contractor, under whose supervision and control complainant is still working. It is submitted that Sh. Harjinder singh is sole proprietor of M/s Ruby Enterprises for providing service. It is submitted that in the present case Comp No.62/05 Page 3 of 9 thre is no contravention of Section 33 of the I.D. Act. It is submitted that there is contract agreement between M/s Indraprastha Gas Ltd and M/s Ruby Enterprises. It is submitted that M/s Indraprastha Gas Limited is the principal employer having Registration Certificate under CLRA Act and the contractor namely Ruby Enterprises has the license. All other allegations made in the present complaint have been denied by the respondents/ managements.
5. In reply filed by respondent / management no.5, it is submitted that since, the complainant is no where a party to the dispute ID No.99/03, therefore, the present complaint is not maintainable. It is submitted that the complainant was engaged by respondent no.5 as temporary Drive Way Salesman due to temporary pressure of work and that he was working under direct supervision and control of respondent no.5. It is submitted that work performance of complainant was not found satisfactory. He was found sleeping during the duty hours inCNG Station on 6.3.04. Therefore, his services were discontinued w.e.f. May, 2005 and he was informed accordingly. It is submitted that there is a contract between management no.1 and management no.5 and that management no.1 is the principal employer having Registration Comp No.62/05 Page 4 of 9 certificate under the CLRA Act. All the allegation made against management no.5 have been denied.
6. On the basis of pleadings of the parties, following issue was framed by my Ld Predecessor vide order dated 03.09.2005:-
1. Whether the complainant is not in the employment of the respondents? OPR
2. Whether the respondents have contravened the provisions of Section 33 of ID Act? OPC
3. Relief.
7. Workman examined himself as CW1. In his examination-in-
chief, he has reiterated the contents of his complaint. In his cross- examination, he has admitted that he was not issued any appointment letter and he did not make any complaint in this regard. It is denied that he was never employed by the management directly. It is denied that he was getting salary from Ruby Enterprises. It is deposed that his services were terminated by Sh. Vikas Upadhyay orally and he has not made any complaint in this regard any where. It is deposed that presently he is not working any where.
8. Management has examined Sh. Vishal Bhatia, Additional Manager of management no.1 as MW 1. In his examination-in-chief, he has reiterated the contentions made in the reply. In his cross-examination, he has denied that complainant was employed by management no.1. It is Comp No.62/05 Page 5 of 9 denied that services of complainant were terminated during the pendency of general demand case. It is denied that management no.1 violated the relevant provisions of Industrial Disputes Act. It is deposed that Wage Register pertains to Ruby Enterprises and he has no personal knowledge of contents thereof.
9. MW 2 Sh. Virender Kumar, Sr. Asst. from EPFO, Waziarpur, N. Delhi has proved on record annual return of 2004-05 and 2005-06, Declaration form-2, and Form-3A i.e. Individual Contribution Form, and Form-9 filed by Ruby Enterprises as Ex. MW2/1 to Ex. MW2/7. In his cross-examination, he has deposed that he could not say if there is fabrication of documents on the part of management to support its case.
10. MW 3 Sh. Radhey Shyam s/o Late Sh. Lok Man Dutt Sharma, peon, ESIC, Ashram, New Delhi has proved on record document as Ex. MW3/1 to Ex. MW 3/3. In his cross-examination he has denied that said challans are fabricated by the said management with collaboration with M/s Indraprastha Gas Ltd.
11. I have gone through the written submissions filed on behalf of complainant. No oral arguments were advanced earlier by either of the parties. However, on an application moved by the management of M/s Indraprastha Gas Limited, arguments on its behalf were heard on Comp No.62/05 Page 6 of 9 19.12.2011. I have carefully gone through record of the case. My findings on the issues are as under :-
12. Findings on issue No 1 Issue no.1 is Whether the complainant is not in the employment of the respondents? OPR.
13. MW 1 Sh. Vishal Bhatia, Additional Manager of management no.1 has proved on record Ex. MW1/3, which is agreement executed between management no.1 and M/s Ruby Enterprises. As per this agreement, Operator i.e. M/s Ruby Enterprises shall provide services to management no.1, which is in the business of dispensing CNG to automobiles and supplying Piped Natural Gas to domestic and commercial customers. A per term no.6(g) of the agreement, the Operator can appoint his personnel including Driver Sales Man (DSM) on a fixed term co-
terminus with the agreement period.
14. From the above agreement, it is clear that the personnel for providing service to management no.1 shall be provided by Operator/ Contractor M/s Ruby Enterprises.
15. MW 1 has also proved on record copy of Form No.9 under The Employees & Provident Fund Scheme, 1952 and under Employees Pension Scheme 1995, issued in the name of M/s Ruby Enterprises, Comp No.62/05 Page 7 of 9 wherein name of its proprietor has been mentioned as Lt. Col Harjinder Singh (Regd. ).
16. From the above discussion and documents Ex. MW 1/3 and Ex. MW1/5, it is clear that there was agreement between management no.1 and Ruby Enterprises that personnel shall be provided by M/s Ruby Enterprises for the services to be rendered at CNG station of management no.1. Thus, it is revealed that power to appoint workers including Driver Sales Man, the designation of workman herein, was with M/s Ruby Enterprises, the contractor. Hence, it is held that complainant/workman is in the employment of respondent no.5, Mr. Harjinder singh, the contractor and proprietor of M/s Ruby Enterprises and not in the employment of management no.1 M/s Indraprastha Gas Ltd. Issue no.1 is decided accordingly.
17. Findings on issue no.2 Issue no.2 is Whether the respondents have contravened the provisions of Section 33 of ID Act? OPC.
18. As held vide issue no.1, complainant/ workman is in the employment of respondent no.5. Section 33 of I.D. Act speaks about change of service condition during the pendency of an industrial dispute. As per case of complainant/ workman, ID. No.99/03 is pending disposal, Comp No.62/05 Page 8 of 9 during which his service conditions were changed. However, it is worth noting that in I.D. No.99/03, said M/s Ruby Enterprises, of which complainant is employee, has not been made party. Therefore, it is clear that no industrial dispute is pending against M/s Ruby Enterprises. Since, no industrial dispute is pending against M/s Ruby Enterprises, the employer of complainant, the question of contravention of provisions of Section 33 of ID Act does not arise. Accordingly, it is held that respondents have not contravened the provisions of Section 33 of Industrial Disputes Act. This issue is decided accordingly.
19. Relief.
In view of my findings on issues no.1 and 2, complainant/ workman is not entitled for any relief. Award is passed accordingly.
20. Copy of award be sent to GNCT of Delhi for publication. File be consigned to record room.
Announced in open court
on 20.12.2011 (MAHAVIR SINGHAL)
Presiding Officer, Industrial Tribunal
Karkardooma Courts, Delhi.
Comp No.62/05 Page 9 of 9