Delhi District Court
Sh. Cabrin Joseph vs M/S Helvita Watch House (Consignee ... on 14 January, 2019
IN THE COURT OF SHRI MOHINDER VIRAT
POLC: DWARKA COURTS: DELHI
In the matter of :
LIR No. 437/16
CNR: DLSW050000962011
Sh. Cabrin Joseph
S/o Late Sh. V. S. Joseph
R/o 546/A4, Third Floor,
Bank Colony, Village Devli,
New Delhi.
...........Workman
Versus
1 M/s Helvita Watch House (Consignee Agent)
Citizen Watches (India) Pvt. Ltd.
At M73, Greater KailashI, Market, New Delhi.
2 M/s The Citizen Watches (India) Pvt. Ltd.
Through its managing Director,
954, 12th Main, HallII, Stage,
Indira Nagar, Banglore38, India
......Managements
Date of Institution : 15.11.2011
Date on which final arguments heard : 20.12.2018
Date of pronouncement : 14.01.2019
LIR No. 437/16 1/21
AWARD :
1.The Secretary (Labour), Govt. of the National Capital Territory of Delhi, Office of the Dy. Labour Commissioner (Distt. North - West) has referred this dispute arising between the parties named above for adjudication to this Labour Court vide notification No. F.24(349)/Lab/SD/2010/1692 dated 15.02.2011 with the following terms of reference: "Whether services of Sh. Cabrin Joseph have been terminated illegally and / or unjustifiably by the management and if so, to what sum of money as monetary relief alongwith other consequential benefits in terms of existing Laws/ Govt. notifications and to what other relief is he entitled and what directions are necessary in this respect?"
2. The brief facts of the claim as alleged are that workman had been in the employment with the managements since 15.09.2005 in 'various capacities'. It is further stated that he worked continuously with the managements / firm till his illegal termination. It is also stated that the last drawn wages of the workman were Rs. 11,000/ per month. It is further stated that LIR No. 437/16 2/21 workman worked all along to the entire satisfaction of the managements and did not give any chance of complaint to the managements. It is also stated that the workman / claimant on 17.10.2009 went to the above named showroom and remained till 6.30 PM and left after Puja. It is further stated that when the workman went to the showroom alongwith other staffs on 18.10.2009, Mr. Harjinder Singh and Mr. Narinder Singh informed the workman and the other staff that the showrrom would be closed today after puja on account of Vishwa Karma Puja and they were told to go home. It is also stated that they all went back to their home as the day was off for them.
It is further stated that on 19.10.2009, the workman alongwith other staff went to the showroom but then also they were sent back by the owners Sh. Harjinder Singh and Sh. Narinder Singh on the pretext of some relative arriving at their home and they had puja and function at home. It is also stated that the workman and other staff were told that the showroom would be closed after some cleaning so they all should go back to their home.
It is further stated that when the claimant reached his home, some acquaintance from the market called him up and LIR No. 437/16 3/21 enquired on his phone as to why he and other staff were not at the show room whereas the showroom was open. The workman was taken aback by this fact and was surprised as to why he was sent back home when the showroom was open. It is also stated that 20.10.2009 was a holiday in the market being Tuesday, so he remained at home. It is further stated that he and other staff came to know that on 19.10.2009 Sh. Harjinder and Sh. Narinder, owners had lodged a false complaint against the workman and other staff stating that no staff had attended their duty in their showroom. It is also stated that he alongwith other staff reached at showroom for duty on 21.10.2009 and they were again asked to take the day off and report for duty on 22.10.2009 and were told that before coming to the showroom they should call any of the two partners.
It is further stated that on 22.10.2009, the claimant alongwith other staff lodged a complaint with the Police Station Greater KailashI, New Delhi48 regarding the same and mentioning the above stated events. It is also stated that on 23.10.2009, claimant alongwith other staff went to the head office of Citizen Watches (India) Pvt. Ltd. at Laxmi Nagar and met the Regional Manager Mr. S. K. Nag and Mr. Yadu Kumar, who said LIR No. 437/16 4/21 that the workman and the other staff could join their respective duties after four days but they were not reinstated back to their jobs even after the expiry of four days. It is further stated that the services of the workman and other staff were terminated by the owners without any prior notice and without paying the salary of the last two months and other benefits. It is also stated that on 28.10.2009 the aggrieved workman and other staff again lodged another complaint with the police station Greater Kailash, New Delhi48 but no action was taken by the police.
It is further stated that legal demand notice dated 16.12.2009 was sent to the owners. It is also stated that proceedings before conciliation officer failed. It is further stated that the claimant is still unemployed, doing some free lance work, and he has been terminated from his services without any reasons or notice.
It is prayed that managements be directed to reinstate the workman immediately on his previous job alongwith the payment of wages due for almost two years and other benefits i.e. full back wages, increments and continuity of service.
3. The management no. 1 contested the claim of the LIR No. 437/16 5/21 claimant/workman by filing its written statement/reply wherein it is stated that the managements no. 1 was appointed as Consignee and Forwarding (C&F) Agent of Citizen Watches (India) Pvt. Ltd. (management no. 2) in Delhi and doing its business. It is further stated that workman was appointed on the approval of management no. 2 for the up gradation of their sales. It is also stated that workman was earlier workman with M/s Jolly Enterprises (P) Ltd., Govind Puri, New Delhi, the sole distributors of Citizen Watch and worked with them till June 2007. It is further stated that workman used to get the wages till 2007 from M/s Jolly Enterprises (P) Ltd when management no. 2 became the C & F agent of Citizen Watches. It is also stated that in the year 2009 the workman was working as 'Senior Sales Assistant' and getting Rs. 11,000/ per month as last drawn wages from management no. 1.
It is further stated that the wages used to be paid by the management no.1 to the workman and were reimbursed by the management no. 2 because the workman was trained by the management no. 2 to increase sales of management no. 2 only. It is also stated that on 17.10.2009 the workman alongwith other employees attended the office but on the next day i.e. 18.10.2009 LIR No. 437/16 6/21 no employee including workman came at the shop. It is also stated that in the evening, the partner of the management called the workman on his phone to know about the reasons of his absent from the duty on which workman replied that the gifts and sweets given to the workman and other employees were not proper and on the instruction of workman, all staff namely Chetan, Sajid Ali, Ajit and Ritu Narula did not come on their duty.
It is further stated that on 19.10.2009, the management no. 1 informed the SHO Police station Greater KailashI, New Delhi in writing about the absent of the employees including workman. It is also stated that on 24.10.2009 the other employee namely Sajid Ali submitted apology letter to the management no. 1 and joined his duties.
It is further stated that the claimant is not a workman as defined u/s 2 (s) of the ID Act 1947 as he was working as Senior Sales Assistant. It is further stated that the nature of duties of the workman was to upgrade the sales of the management by promoting the product of management no. 2. It is also stated that the management duly appeared before the Conciliation Officer and filed their reply in the matter but it could not settle due to LIR No. 437/16 7/21 adamant attitude of the workman. It is prayed that the present case be dismissed.
4. The management no. 2 contested the claim of the claimant/workman by filing its written statement/reply wherein it is stated that there is no relationship of Master and servant between the management no. 2 and the workman. It is further stated that management no. 2 has no control, no supervision and was not paying any wages to the workman. It is submitted that the statement of claim is not maintainable and is liable to be dismissed.
5. The claimant/workman filed rejoinder to the written statement/reply filed by the managements thereby reiterating and reaffirming the contents of his statement of claim.
6. From the pleadings of parties following issues were framed by the Learned Predecessor of this court on 08.08.2013:
(1) Whether there exists any relationship LIR No. 437/16 8/21 of employee and employer between the claimant and the management no. 2?OPW (2) Whether the claimant is covered within the definition of the workman provided u/s 2(s) of the ID Act, 1947? OPW (3) Whether the workman himself abandoned services of the management no.1 w.e.f. 18.10.2009? OPM (4) Relief.
7. In order to substantiate his case, the workman tendered his affidavit dated 23.01.2014 in evidence as Ex. WW1/A and additional affidavit dated 22.03.2018 in evidence which is Ex.WW1/B mentioning all the facts stated in the statement of claim. He relied upon the following documents :
1. Ex. WW1/1 (colly.) are copy of statement of account (OSR) (running into two pages).
2. Ex. WW1/2 is copy of employee ID card issued by Citizen Watches (India) Pvt. Ltd. to the workman (OSR).
LIR No. 437/16 9/213. Ex. WW1/3 is photocopy of group photograph of the workman alongwith Managing Director, Mr. Kawaguchi of Citizen Watches (India) Pvt. Ltd. (OSR).
4. Ex. WW1/4 is original copy of complaint dated 22.10.2009 bearing DD no. 42B.
5. Ex. WW1/ 5 is deexhibited.
6. Ex. WW1/6 is copy of cheque amounting to Rs. 25,218/ bearing no. 918106 dated 29.05.2009 drawn on ICICI Bank Ltd., Indra Nagar Branch, Bangalore.
7. Ex. WW1/7 is copy of passbook of saving bank account no. 3001101155 with Central Bank of India, Greater Kailash, PartI Branch. (OSR).
8. Ex. WW1/8 is leaflet of the broacher showing the watches of Citizen at exclusive store. (OSR)
9. Ex. WW1/9 is copy of train ticket dated 08.12.2008 from Delhi to Ludhiyana. (OSR).
10. Ex. WW1/10 is copy of train ticket dated 08.12.2008 from Ludhiyana to Lucknow. (OSR).
11. Ex. WW1/11 is copy of train ticket dated 09.12.2008 from Lucknow to Delhi. (OSR).
LIR No. 437/16 10/2112. Ex. WW1/12 is copy of TATA Indicom Bill from 09.06.2008 to 08.07.2008 (OSR).
13. Ex. WW1/13 is copy of TATA Indicom Bill from 09.07.2008 to 08.08.2008 (OSR).
14. Ex. WW1/14 is copy of LIC policy. (OSR).
8. Percontra, the management No.1 has examined MW1 Sh. Narender Singh. He has tendered his affidavit in evidence as Ex. MW1/A. He relied upon following documents :
1. Ex. MW1/1 is letter dt. 19.10.2009 to SHO, GK I.
2. Ex. MW1/2 is the apology letter dt. 24.10.2009.
The management No.2 has also examined MW2 Sh. Surendra Kumar Nag. He has tendered his affidavit in evidence as Ex. MW2/A. He relied upon following documents :
1. Mark A is the franchise agreement instituted between management no. 1 and management no. 2.
9. Arguments heard and record perused.
Issue wise findings of this court are as under : LIR No. 437/16 11/21 ISSUE NO. 1.
10. This issue relates to existence of employeremployee relationship between the claimant and the management no. 2, the onus of which was conferred by the Predecessor of this court upon the workman. In order to prove his stand, the workman has proved his employee ID card issued by Citizen Watches (India) Pvt. Ltd.,(i.e. management no. 2) to the workman, cheque amounting to Rs. 25,218/ bearing no. 918106 dated 29.05.2009 drawn on ICICI Bank Ltd. Issued by Citizen Watches (India) Pvt. Ltd., (management no. 2).
In this regard, it be also noted that the workman has categorically averred that he has been working with the managements since 15.09.2005 and was terminated illegally.
MW2 Sh. Surendra Kumar Nag has produced the franchise agreement instituted between management no. 1 and management no. 2 which shows that workman was working with management no. 2. Here it be also noted that the workman has proved his identity card which is Ex. WW1/4. The said document LIR No. 437/16 12/21 shows that the workman was employed with management no. 2 and was working in the shop of management no. 1.
On the other hand, the management no. 2 has not brought any document on record to disprove the fact that there was no employeremployee relationship between the management no. 2 and workman.
Further, it has been categorically denied by the workman in his crossexamination that management no. 2 has referred him to M/s Jolly Enterprises Pvt. Ltd., Govind Puri, New Delhi for promotion of sales of watches. It is also denied that he was working as Senior Sales Assistant with management no. 2 in the year 2009. He further stated that he was working as helper. He admitted the fact that he was appointed by management no. 2 w.e.f. 15.09.2005. He further admitted that he remained the permanent employee of management no. 2 since 15.09.2005 till October 2009. He further stated that he visited Ludhiana and Lucknow to promote the business of management no. 2 for display of watches at various places. He also stated that the management no. 2 did not issue any letter of appointment, promotion letter and increment letter to him. He LIR No. 437/16 13/21 voluntarily stated that management No.2 have issued him the I card. He further voluntarily stated that he was working with management no. 2. He also stated that he used to receive his salary by way of cheque or in cash from management no. 1.
Further, MW2 in his crossexamination has admitted that management no. 2 used to give incentives to the workman.
In the light of the aforesaid, issue no. 1 is decided against the management no. 2 and in favour of the workman. It is held that there was employer and employee relationship between management No.2 and the workman. Issue disposed of accordingly.
ISSUE NO. 2.
11. This issue comprises whether the claimant is covered u/s 2 (s) i.e within the definition of workman or not? The onus to prove this issue was conferred by the Ld. Predecessor of this court upon the claimant.
Here it be noted that the workman has stated that the management no. 2 did not issue any letter of appointment, LIR No. 437/16 14/21 promotion letter or increment letter to him.
The defence of the management is that claimant is not a 'workman' as claimant / workman has filed his complaint to SHO which is Ex. WW1/4 where in he has mentioned his designation as 'Manager'.
However, the management has not produced any document on record that the workman was working in the capacity of 'Manager' and was not a 'Workman'.
Here it be noted that on oath the workman has stated that he was working in various capacities as workman. The Hon'ble Superior Court have held in catena of judgments that in such cases what has to be looked by the courts is the nature of duties / work assigned to the claimant and not the mere designation. The court has to see whether the claimant was employed in a supervisory capacity or that his duties, powers and functions were mainly of managerial or supervisory in nature.
The management no. 1 has examined MW1 Sh.
Narender Singh, Partner for the management no. 1. He proved his complaint to SHO dated 19.10.2009 where he has mentioned the designation of the workman as 'Showroom Manager'. Further, the management no. 1 has not produced any document on record to LIR No. 437/16 15/21 prove the nature of the work of the claimant / workman. It was incumbent upon the management to file the appointment letter of the claimant in order to prove that the claimant was performing managerial or supervisory duties.
Here, adverse inference has to be drawn against the management No.1 u/s 114 of the Indian Evidence Act. The management is guilty of withholding best evidence available with it i.e. appointment letter in order to prove that the claimant is not a 'Workman'.
Now since the claimant has cogently and confidently proved that he was not employed in supervisory capacity or that his duties, powers and functions were mainly of supervisory in nature, it is held that the claimant is covered u/s 2 (s) of the Act.
In view of the above mentioned facts and circumstances, this issue is decided in favour of the workman and against management No.1. Issue disposed of accordingly.
ISSUE NO. 3.
12. This issue comprises whether the workman himself LIR No. 437/16 16/21 abandoned the services of management no. 1 w.e.f. 18.10.2009. The onus to prove this issue was conferred by the Ld. Predecessor of this court upon the managements.
The management no. 1 in order to prove this issue has examined MW1 Sh. Narender Singh, Partner for the management no. 1. He has proved complaint to SHO, GKI dated 19.10.2009.
Here it be also noted that in his crossexamination he admitted that the workman was working with them as a helper. He also admitted that they used to pay the salary to the workman. He further admitted that management no. 2 used to reimburse the salary of the workman to them. He also admitted that the workman came through management no. 2 in their showroom as helper. He further admitted that the management no. 2 used to give incentives to the workman. He also admitted that Director of management no. 2 used to visit showroom of management no. 1. He further admitted that the last drawn salary of the workman was Rs. 11,000/ per month. He also admitted that he had not made any complaint against the workman prior to 18.10.2009. He further admitted that he had not sent any letter to the workman after his unauthorized absenteeism from his services.
LIR No. 437/16 17/21Further, he stated that they have informed telephonically to management no. 2 that the workman is not coming on his job with the management no. 1. He also admitted that Halvitia Watch House has become exclusive dealer of management no. 2 in Delhi from the year 2004.
Here, it be noted that the issue of abandonment could have only been proved by both the managements through leave register or attendance register. As from the leave register managements can establish that the workman started absenting from his services w.e.f. 18.10.2009. Here, again adverse inference has to be drawn against both the managements for not bringing on judicial record the best evidence available with it i.e. the leave register/attendance register.
Here, it be also noted that the management has not filed any document to show that the workman abandoned form his services with the managements w.e.f. 18.10.2009.
Further, no show cause notice has been issued by the managements to the workman and further no enquiry has been conducted against him regarding his alleged unauthorized absence from 18.10.2009.
LIR No. 437/16 18/2113. In Shiv Kumar Vs. Hansita W.P. (c) No. 19713/2005, it has been held by the Hon'ble Delhi High Court that the plea to abandonment cannot be accepted and in the absence of any inquiry, the order of terminating the services without following mandate of section 25 (f) of the Industrial Dispute Act will be bad in law.
In the light of the aforesaid, it is held that the managements have failed to discharge the onus placed upon them regarding the issue of abandonment by the workman from 18.10.2009.
14 In view of the above mentioned facts and circumstances, this issue is decided in favour of the workman and against the managements. Issue disposed of accordingly.
RELIEF:
15. The Hon'ble Supreme Court of India in case titled Employers, Management of central P & D Inst. Ltd Vs Union LIR No. 437/16 19/21 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 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 managements on 18.10.2009. 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 LIR No. 437/16 20/21 reinstatement. Accordingly, I grant a compensation of Rs. 1,20,000/ (Rupees One Lac Twenty 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 amount of compensation shall be paid by the managements 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.
16. Award is passed accordingly. Reference is answered accordingly.
17. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication.
18. File be consigned to record's after due compliance.
Digitally signed by MOHINDER MOHINDER VIRAT
VIRAT Date: 2019.01.15
16:07:50 +0530
Announced in open court (MOHINDER VIRAT)
On 14th January, 2019. POLC: DWARKA COURTS NEW DELHI.
LIR No. 437/16 21/21