Delhi District Court
Sh. Umesh Chand vs The on 18 July, 2018
IN THE COURT OF SHRI LOKESH KUMAR SHARMA
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER : LABOUR COURT - XIX
DWARKA COURTS : DELHI
LIR No. 1710/16
Sh. Umesh Chand
S/o Chhote Lal
R/o B52, Gali No. 5,
Nasirpur Colony,
New Delhi - 110 045.
Through: Readymad Garment Export
Employees Union (Regd.)
D2/49, Hari Enclave,
Kirari Suleman Nagar,
Near CPM Public School,
New Delhi - 110 086
Also at: A175, New Moti Nagar,
New Delhi - 110 015.
... Workman
Versus
The Management of
M/s. Adigear International
A40, Mayapuri Industrial Area,
PhaseI, New Delhi - 110 064.
Also at: Plot No. 150, Sector4,
IMT Manesar, Gurgaon, Haryana.
... Management
Date of institution of the case : 19.08.2014
Date of passing the Award : 18.07.2018
LIR No. 1710/16 Page 7 / 7
A W A R D:
1.The Deputy Labour Commissioner, Delhi exercising his powers conferred by virtue of Section 10(1)(c) and 12(5) of Industrial Dispute Act, 1947 read with Notification No.F 1/31/616/ESTT./2008/7458 dated 03.03.2009 had sent the following reference dated 29.05.2014 to this Court for determination:
"Whether services of Sh. Umesh Chand S/o Sh. Chhote Lal have been terminated illegally and / or unjustifiably by the management and if so, to what relief is he entitled?"
2. Pursuant to service of notice, the workman had appeared and filed his statement of claim claiming therein that he was working with the management as Tailor since 21.11.2011 with his last drawn salary as Rs. 8,008/ per month. He had worked with utmost sincerity, honesty and his service record was satisfactory as he had never given chance of any complaint of any nature whatsoever to the management. Management was stated to have deprived the workman of statutory benefits such as appointment letter, attendance card, leave book, pay slip etc. Neither it had provided weekly off, leaves, bonus, overtime, earned wages etc. to the workman for the months of November and December, 2013 and when the workman had raised demand for the same, the management acting in an illegal, unjust and arbitrary manner had terminated his services w.e.f. 16.01.2014 withholding his earned wages for the months of LIR No. 1710/16 Page 7 / 7 NovemberDecember, 2013 and 16 days of January, 2014.
3. The workman was stated to have filed a complaint dated 10.12.2014 before the Labour Commissioner and despite visit of Labour Inspector at the premises of management, it had refused to take the workman back on job. Hence, the present reference was made wherein it was prayed that the workman be reinstated in service with full back wages with all statutory benefits.
4. Notice of this statement of claim was sent to the management which was also duly served upon it and management had also appeared to contest the claim of the workman on merits and had filed its written statement on record wherein it was claimed that the present case was neither that of termination nor retrenchment of the workman rather the workman himself had remained absent unauthorizedly w.e.f. 16.01.2014 without any prior intimation or permission.
5. On merits, all the contents of the statement of claim unless the same were specifically admitted or purely or essentially constituted the matter of record were denied by the management as wrong and incorrect.
6. On the pleadings of the parties, the Ld. Predecessor of this Court vide order dated 10.01.2017, was pleased to frame the LIR No. 1710/16 Page 7 / 7 following issues:
1. Whether the workman started remaining absent unauthorizedly, if so what effect? OPM
2. Whether the management has closed its business activity from 2014, if so from which date and from which month and to what effect?
3. In terms of reference.
4. Relief.
7. Thereafter, the matter had lingered on for several dates on the pretext of some amicable settlement. However, no settlement was arrived nor management had caused its appearance. Hence, management was proceeded ex parte vide order dated 02.08.2017.
8. In his evidence filed on record by way of affidavit Ex. WW1/A, the workman had reiterated the factual contents of his statement of claim on solemn affirmation.
9. Besides this, workman had also placed on record the following documents: i. Photocopy of statement of claim filed before the Conciliation Officer as Ex. WW1/1.
ii. The photocopy of his Identity Card issued by the management as Ex. WW1/2.
iii. Wage slip for the month of August, 2013 as Ex. WW1/3.
LIR No. 1710/16 Page 7 / 7Thereafter, workman's evidence was closed.
10. I have heard the learned AR appearing for the workman and examined the record.
11. The factual contentions made by the workman regarding deprivation of statutory facilities granted to him as contended by him in his statement of claim as well as affidavit Ex. WW1/A itself is falsified from his own document Ex. WW1/3 placed on record which is nothing but his salary slip, whereas he had claimed that he was never issued any pay slip by the management.
12. Further, it is to be noted here that on no occasion whatsoever, any demand notice was sent by the workman to the management and it is the settled preposition of law that the issuance of demand notice is mandatory before raising an industrial dispute. In the absence of demand notice, it cannot be held that an industrial dispute had actually arisen.
13. In this regard, I am also supported by the judgment of our own Hon'ble High Court of Delhi reported in S.N. Tiwari Vs. Government of NCT of Delhi and Another, W.P. (C) No. 593/2008 decided on 20.08.2009, wherein it was held by Hon'ble Mr. Justice S.N. Aggarwal, J. that: LIR No. 1710/16 Page 7 / 7 "3.The Labour Court in its impugned award has relied upon a judgment of the Supreme Court in Sindhu Resettlement Corporation Ltd. Vs. Industrial Tribunal of Gujarat AIR (1968) SC 529 and also upon two judgments of this Court, one of Division Bench in Fedders Loyed Corporation Vs. Lt. Governor of Delhi and other of Single Bench in Nagender Sharma Vs. Management of M/s. Rajasthan Timbers Corporations, ILR (2006) 1 Delhi 1030 and on the strength of these three judgments, it was held that since the petitioner had not made a demand for his reinstatement prior to filing of claim for his reinstatement before the Conciliation Officer, industrial dispute between the parties does not exist."
14. Furthermore, the management could not be stated to be under any legal obligation of recalling the workman or institute any disciplinary inquiry against him for his unauthorized absence as held by Hon'ble High Court of Delhi in the case of M/s. Diamond Toys, wherein, it was held by Hon'ble Mr. Justice S.N. Dhingra, J. that workman was a free bird who could have moved out of his employment at any point of time, if he had found a more promising job and management had no right to put any kind of fetters and cages on his freedom. Similarly, management could also not be burdened or fastened with the liability to keep on issuing notices to workman calling upon him to rejoin the duties. Therefore, if the management had decided to cope up with the absence of workman and to go ahead with its business without him, then no malafide intention can be imputed on this kind of conduct of the management.
LIR No. 1710/16 Page 7 / 715. In view of my aforesaid observations, the statement of claim as filed by the workman is dismissed being devoid of any merits.
Award is accordingly passed. Reference stands answered in aforesaid terms. Copy of award be sent to Labour Commissioner for publication. File be consigned to record room.
ANNOUNCED IN OPEN COURT on 18th Day of July, 2018 (Lokesh Kumar Sharma) Addl. District & Sessions Judge Presiding Officer, Labour CourtXIX Dwarka Courts, New Delhi Digitally signed by LOKESH LOKESH KUMAR KUMAR SHARMA SHARMA Date:
2018.07.18 16:19:39 +0530 LIR No. 1710/16 Page 7 / 7