Delhi District Court
Sh. Rakesh Gaur vs ) M/S Amway India Pvt. Ltd on 30 November, 2018
IN THE COURT OF SHRI MOHINDER VIRAT
POLC: DWARKA COURTS: DELHI
In the matter of :
LIR No. 4056/16
CNR No: DLSW050017682013
Sh. Rakesh Gaur,
S/o Sh. Phool Chand,
R/o H. no. 786, Rayees Mil,
Compound, Rithala, New Delhi.
...........Workman
Versus
1) M/s Amway India Pvt. Ltd.
Kh. no. 904/913, Rice Mill Compound
Rithala Gaon, New Delhi110084.
2) M/s Amway India Enterprises Pvt. Ltd.,
First Floor Element Tower Plot no. 8,
Commercial Complex Jasola Vihar Delhi.
3) M/s Bicon Security Pvt. Ltd.
WZ71A, First Floor Darshghara Todapur,
New Delhi110012.
.....Managements
LIR No. 4056/16 1/14
Date of Institution : 25.10.2013
Date on which final arguments heard : 30.11.2018
Date of pronouncement : 30.11.2018
AWARD :
1.Vide Order No. 24/ID/335/13/NWD/ (113)/13/Lab./57074 dated 01.10.2013, 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: "Whether the services of workmen the Sh. Dharamveer S/o Sh. Ram Dayal Mourya & 41 (Annexure A) have been terminated illegally and / or unjustifiably by the management and if so, to what relief are they entitled and what directions are necessary in this respect?"
2. The brief facts of the claim are that claimant/workman had been in the employment with the managements since 07.11.2000 as Loader / Unloader and was getting salary of Rs. 7020/ per month. The management was taking work for 12 Hours per day from the workman. It is further LIR No. 4056/16 2/14 stated that he has unblemished and uninterrupted record of service to his credit. It is also stated that during his working period, the workman has not given any chance to management to issue any memo or complaint, against him. It is further stated that the management of M/s Amway India Pvt. Ltd. had given work of loading / unloading to the management of M/s Bicon Security Pvt. Ltd. And M/s K. D. Supply chain Pvt. Ltd. It is also stated that the workman was working under the supervision and control of M/s Amway India Pvt. Ltd. It is also stated that the managements had no valid agreement and the contract between the managements no. 1 and 2 were Sham and Camouflage. It is further stated that his nature of work was permanent. It is also stated that there was no registration under Contract Labour and Abolition Act of management no. 1 and the contractor had no license under contract labour and abolition Act.
It is further stated that M/s Bicon Security Pvt. Ltd. did not provide legal facilities to the workman like appointment letter, attendance card, overtime, leave book, ESI and PF, bonus weekly off, Rs. 7254/ minimum wages and its arrear etc. etc. and when the workman demanded these facilities, his services were terminated on 02.04.2013 without any reason.LIR No. 4056/16 3/14
It is further stated that workman orally requested to the management for reinstatement but the management neither replied nor reinstated the workman. It is also stated that he is unemployed from the date of his termination.
It is further stated that the workman was permanent employee of the management and he had not committed any misconduct during his employment. It is also stated that no memo or charge sheet were ever served upon the workman and domestic enquiry was also not conducted against him. It is further stated that demand notice dt. 26.04.2013 sent to the management, but the management did not give reply.
It is further stated that he filed the complaint before Assistant Labour Commissioner, but the management refused to take the workman back on duty.
It is prayed that the workman be given reinstatement in service with continuity and full back wages in proper pay scale and allowances and with all consequential benefits.
3. Here it is pertinent to mention that vide order dated 18.09.2017, names of management no. 1 and 2 were deleted from the array of the parties and the case was only contested by management no. 3 i.e. M/s Becon Security Pvt. Ltd.LIR No. 4056/16 4/14
The management no. 3 filed its written statement / reply wherein it is stated that there exists no relationship of employer employee between management and the claimant as he was never employed by the management. It is also stated that it is registered company since 13.05.2005 and it works for Amway Enterprises through K. D. Supply Chain Pvt. Ltd. and is into the business of providing security and for the same purpose it has been given the work of loading / unloading by the management of M/s Amway India Pvt. Ltd. ie. Management no. 1, the Principal Employer who has appointed the workman for the work of sweeping as sweeper through M/s Becon Security Pvt. Ltd. on full time and a perennial nature of job. It is further stated that the work of workman is directly supervised and controlled by the management no. 1, principal employer of the workman.
It is also stated that M/s Becon Security Pvt. Ltd. works for the management no. 1 through K. D. supply chain Pvt. Ltd. It is further stated that M/s K. D. supply chain started their business in Rithala for the management no. 1 w.e.f. 07.08.2011 and M/s Becon Security Pvt. Ltd. was not doing any business prior to September / October 2005 as it was registered only in May 2015. It is also stated that M/s Becon Security Pvt. Ltd. is LIR No. 4056/16 5/14 only a commission agent getting the commission for engagement of the claimants for the work of the management no. 1 and it has no role and as such it is not liable to make any payment to the workman as claimed.
It is further stated that M/s Becon Security Pvt. Ltd. came to know from K. D. Supply Chain Pvt. Ltd, that the contract of the management no. 2 was cancelled by the management no. 1 as the management no. 1 has shifted its place at Hasangarh (Haryana). It is also stated that it has tied up with other companies in place of K. D. Supply Chain.
In the end it is submitted that the workman is not entitled to any relief and present claim be dismissed as the workman had never been in the employment of the management.
4. On the basis of the pleadings of the parties, following issues were framed on 28.07.2016:
1. Whether there exists any relationship of employer and employee between the workman and management of M/s Amway India Enterprises Pvt. Ltd.? OPW
2. Whether the claim is not maintainable in view of preliminary objection NO. 2 of LIR No. 4056/16 6/14 W/S of the management M/s Amway India Enterprises Pvt. Ltd.? OPM M/s Amway India Enterprises Pvt. Ltd.
3. Whether the management M/s Bicon Security Pvt. Ltd., is only commission agent through K. D. Supply Chain Pvt. Ltd. for the engagement of workmen for work of management M/s Amway India Enterprises Pvt. Ltd. And whether M/s Bicon Security Pvt. Ltd., has no work in Delhi after the business of Amway India Enterprises Pvt. Ltd. was shifted to Hassan Pur Haryana, if so, to what effect? OPM M/s Bicon Security Pvt. Ltd.
4. Whether the responsibilities of providing legal facilities to the claimant was of management M/s Amway India Enterprises Pvt. Ltd. , if so to what effect? OPM M/s Bicon Security Pvt. Ltd.
5. Whether the contract of M/s Bicon Security Pvt. Ltd. Was terminated by M/s Amway India Enterprises Pvt. Ltd., if so to what effect? OPM M/s Bicon Security Pvt. Ltd.
6. As per terms of reference. OPW
7. Relief.LIR No. 4056/16 7/14
5. In order to substantiate his 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 Complaint to Assistant Labour Commissioner (OSR) (running into 3 pages) .
2. Ex. WW1/2 is copy of proceedings before Inspecting Officer, Labour Department (running into 3 pages) (certified copy seen and returned).
3. Ex. WW1/3 is copy of bonus detail of workers of management no. 3 (running into 14 pages)
4. Ex. WW1/4 is copy of cheque issued by management no. 3 (running into 14 pages).
5. Ex. WW1/5 (colly.) are copies of demand notices.
6. Ex. WW1/6 is postal receipt.
7. Ex. WW1/7 is postal receipt.
8. Ex. WW1/8 is postal receipt.
9. Ex. WW1/9 is copy of conciliation claim.LIR No. 4056/16 8/14
10. Ex. WW1/10 is copy of ESIC Card (OSR)
11. Ex. WW1/11 is copy of Smart Card of ESIC (OSR).
12. Ex. WW1/12 is copy of PF slip.
6. The management has not led any evidence despite opportunities given.
7. Arguments heard and record perused.
Issue wise findings of this court are as under : Issue No. 1, 2, 3, 4, and 5
8. For the sake of convenience issues no. 1, 2, 3, 4 and 5 are taken up together for disposal. Here it be noted that vide order dated 18.09.2017, on the statement made on behalf of the workman the names of the management No. 1 and 2 were deleted by the Ld. Predecessor of this court.
Further, it is pertinent to mention that the management i.e. M/s Becon Security Pvt. Ltd. has not led any LIR No. 4056/16 9/14 evidence despite opportunity given. The present management has also not filed any documentary evidence to show that it was only a commission agent working through K. D. Supply Chain Pvt. Ltd. for the engagement of workmen for work of management of M/s Amway India Enterprises Pvt. Ltd. and it has no work in Delhi after the business of Amway India Enterprises Pvt. Ltd. was shifted to Hassan Pur Haryana. It has also failed to prove that the responsibilities of providing legal facilities to the claimant was of management M/s Amway India Enterprises Pvt. Ltd. and not of the present management. It further failed to prove that its contract was terminated by M/s Amway India Enterprises Pvt. Ltd.
There is no evidence whatsoever led on behalf of the management and further no witness of the present management came forward to grace the witness box.
Per contra the workman has produced copy of complaint made to Assistant Labour Commissioner, copy of proceedings before Inspecting Officer, Labour Department, copy of bonus detail of workers of present management, copy of cheque issued by management no. 3, copies of demand notices, copy of conciliation claim, copy of ESIC Card, copy of Smart LIR No. 4056/16 10/14 Card of ESIC and copy of PF slip to prove the relationship between the workman and the present management i.e. M/s Becon Security Pvt. Ltd. Nothing contrary has been proved by the management.
In view of the above discussions, issues no. 1, 2, 3, 4 and 5 are decided against the management i.e. M/s Bicon Security Pvt. Ltd and in favour of the workman. Issue disposed of accordingly.
Issue No. 6:
9. Now since the management has failed to prove that the workman has himself abandoned the services of the management, this court holds that the services of the workman have been illegally terminated by the management. Moreso when no showcause notice was issued or domestic enquiry has been conducted by the management to justify the termination of the workman. This issue is also decided in favour of the workman and against the management i.e. M/s Bicon Security Pvt. Ltd. Issue disposed of accordingly.
LIR No. 4056/16 11/14RELIEF:
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 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 LIR No. 4056/16 12/14 by the management on 02.04.2013. 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. 1,36,000/ (Rupees One Lac and Thirty Six Thousand only) to the workman/claimant instead of his reinstatement and back wages. Considering the tenure of his service, damages for delay and resultant litigation. The amount of compensation shall be paid to the workman/claimant by the management no. 3 i.e. M/s Bicon Security Pvt. Ltd. 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. 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.
LIR No. 4056/16 13/1413. File be consigned to Record Room.
Digitally signed by MOHINDERAnnounced in open court (MOHINDER VIRAT) MOHINDER VIRAT Date:
VIRAT On 30.11.2018 POLC: DWARKA COURTS 2018.12.01 15:09:44 NEW DELHI +0530 LIR No. 4056/16 14/14