Delhi District Court
Mukesh vs Neeraj Paper Marketing Ltd on 6 September, 2023
1
IN THE COURT OF Ms. MONIKA SAROHA
PRESIDING OFFICER, LABOUR COURT No. 02,
ROUSE AVENUE COURT COMPLEX: NEW DELHI
CNR No. DLCT13-009712-2017
LIR No. 2576/2017
Date of Institution 23.08.2017
Date of Award 06.09.2023
Sh. Mukesh
S/o Late Sh. Ramphal, Contact No. 9953442588,
R/o Village & P.O. Sohati, District Sonipat, Haryana.
Represented by: Sh. T. R. Rajput (Advocate), Contact No.
9910974803, Ch. No. Y-67, Civil Wing, Tis Hazari Courts, Delhi-54.
.....Workman.
Versus
M/s Neeraj Paper Marketing Ltd.,
218-222, Aggarwal Prestige Mall, Plot No.2, Pitam Pura, Delhi-34.
Represented by: Sh. Sudhir Kumar, 263, Lawyers Complex-I, Delhi
High Court, New Delhi, Mobile No. 9811309103.
.....Management.
AWARD
1.Vide this award, I shall decide the reference sent to this court by the Joint Labour Commissioner (North-West District), Labour Department, NCT of Delhi, dated 21.06.2017, bearing No. LIR No. 2576/2017 2 F.24/ID/17/17/NWD/359/17/Lab/1099-1101 with the following terms :-
"Whether the workman Sh. Mukesh S/o Late Sh. Ramphal has left the services on his own or his services have been terminated illegally and/or unjustifiably by the management; and if so, to what relief is he entitled and what directions are necessary in this respect?"
1.1 Notice of this reference was issued to the workman who appeared with his authorized representative and filed the statement of claim.
CLAIM OF THE WORKMAN
2. According to the claim of the workman, he was employed as a 'Driver' with the management, from 28.04.2001 till 12.08.2016 at the last drawn salary of Rs. 10,000/- (Rupees ten thousand only) per month. The workman continuously worked as a 'driver' with the management till 12.08.2016, when his employment was suddenly and unlawfully terminated by the management without giving him any notice, compensation or reason. On 11.08.2016 the workman had visited the office of the management and met its directors in the evening. The directors, Mr. Neeraj Goyal and Mr. Praveen Goyal orally terminated his services and asked him never to come again for duty. However, still the next day on 12.08.2016 the workman tried to resume his duties but he was not allowed to join the same. The LIR No. 2576/2017 3 claimant then approached the worker's union and sent a demand notice dated 08.12.2016 to the management through registered A.D/speed post, which was served upon the management but the management neither reinstated the workman in service nor cleared his dues. The claimant then approached the Labour Department but here again the conciliation proceedings failed. Hence the present reference was sent to this court.
2.1 On the basis of these averments in the claim, notice was issued to the management. The AR of the management appeared and written statement was filed by the management.
REPLY OF THE MANAGEMENT
3. In its reply, the management admitted that the workman was working as a 'Driver' with it at the salary of Rs. 10,000/- per month since 2001. However, the management denied that the workman was ever forced to leave his job. It took the defence that the workman had expressed his inability to continue working with the management on account of ill-health of his daughter and voluntarily resigned. It is the case of the management that the workman even provided a 'substitute driver' in his place to the management. Further there are allegations in the written statement that the workman had taken Rs. 25,000/- as advance against his salary and thereafter he willingly resigned. The management admitted that it received a notice LIR No. 2576/2017 4 from the conciliation officer and that it had participated in the conciliation proceedings also.
ISSUES FRAMED
4. After the rejoinder to the written statement was filed by the workman, on the basis of the pleadings and the reference the following issues were framed by the Ld. Predecessor on 27.02.2019:-
i) Whether the claimant is workman within the meaning of Section 2(s) of Industrial Disputes Act? OPW
ii) Whether the management had illegally terminated the services of workman? OPW
iii) Whether the workman Sh. Mukesh S/o Late Sh. Ramphal has left the services on his own? OPM
iv) Relief.
After the issues were framed the matter was then listed for workman's evidence.
WORKMAN'S EVIDENCE
5. The workman appeared in the witness box as the sole witness and filed his evidence by way of affidavit. In this affidavit, the averments of the claim, as mentioned above were reiterated. The workman relied upon the following documents:-
i) Ex. WW1/1 (colly.) - His Pay slips for the months of August and September 2013.LIR No. 2576/2017 5
ii) Ex. WW1/2 - His Pay slip for the month of October, 2013.
iii) Ex. WW1/3 - Photocopy of payment voucher dated 03.04.2015.
iv) Ex. WW1/4 - His Pay slip for the month of May, 2015.
v) Ex. WW1/5 - His ESI card issued by the management.
vi) Ex. WW1/6 - Certificate dated 21.04.2005 issued to the workman regarding working as Staff Car Driver by the management.
vii) Ex. WW1/7 - Photocopy of certificate dated 19.02.2014 issued to the workman by the management.
viii) Ex. WW1/8 - Legal notice dated 08.12.2016 sent to the management by the workman.
ix) Ex. WW1/9 - Postal receipt regarding sending of demand notice to the management.
x) Ex. WW1/10 - Statement of claim filed before the conciliation officer.
5.1 The workman was cross-examined at length by the AR of the management. No other witness was examined and upon request, the evidence of the workman was closed and the matter was listed for management's evidence.
LIR No. 2576/2017 6MANAGEMENT'S EVIDENCE
6. Sh. Vipin Kumar Goel, Chief Financial Officer of the management appeared in the witness box as the sole witness of the management. He deposed in consonance with the stand taken by the management in it's written statement. He relied upon the following documents:-
i) Mark A - Copy of reply filed by management before the office of Labour Commissioner.
ii) Mark B - Copy of ESIC Card of the workman.
iii) Mark C (colly. running from page nos. 16 to 23) -
Copy of the statement of ledger account pertaining to the salary and advance paid to workman.
iv) Mark D - Copy of letter dated 08.04.2015 regarding sanction of advance of Rs. 20,000/- to the workman.
6.1 The management witness was cross-examined at length by the AR of the workman. No other witness was examined and upon request, the evidence of the management was closed. Then, the matter was listed for final arguments.
ARGUMENTS
7. The AR of the workman and the AR of the management advanced lengthy arguments on 10.08.2023 which were heard by this court. All the relevant documents on record were considered.
LIR No. 2576/2017 7ISSUE-WISE FINDINGS
8. The issue-wise findings on the basis of arguments advanced and material on record are discussed in details in the sub- paragraphs that follows:-
Issue No. 1 :- Whether the claimant is workman within the meaning of Section 2(s) of Industrial Disputes Act? OPW 8.1 In the written statement, it is admitted by the management that the claimant was working as a 'driver' with it. It is not the case of the management that the claimant was working in a 'Managerial' or a 'Supervisory' capacity. Although, one vague averment in paragraph five of the written statement has been made to this effect. However, in the para-wise reply in the same written statement at paragraph two, it has been admitted that the claimant was working as a 'driver' with the management. Even in his cross-examination the management witness has admitted that the workman was working as a driver with the management. Thus it is clear from the admission in the written statement and the averments of the management witness in the witness box that the claimant was indeed a 'workman' working as a 'driver' with the management.
8.2 It is nowhere disputed by the management that it is not an 'Industry' under the Industrial Disputes Act. Even the duration of employment has nowhere been disputed by the management. The LIR No. 2576/2017 8 management has nowhere provided any alternate date of recruitment of the workman and in the cross examination MW1 has clearly admitted that the workman was working with the management since 28.04.2001. Thus from the pleadings and cross examination it stands established that the workman had worked with the management for more than 15 years from 2001 till 2016.
8.3 Thus, the following stands established from the pleadings of the management itself:-
a) Employer- workman relationship between the parties (for sixteen years).
b) That workman was regularly working with the management from 28.04.2021 till August 2016.
c) That the management is an 'Industry' as defined under the Industrial Dispute Act.
8.4 In view of the above admissions and the facts thus established, this court is satisfied that the present dispute is an 'industrial dispute'. This issue is decided in favour of the workman and against the management.
Issue No. 2 :- Whether the management had illegally terminated the services of workman? OPW LIR No. 2576/2017 9 8.5 The workman appeared in the witness box and deposed by way of affidavit that after working with the management continuously for 16 years, he was terminated from his employment without any notice, inquiry or payment of his legal dues. He appeared in the witness box and deposed that he was not allowed to join his duties by the management on 12.08.2016. Despite his cross examination, he remained firm on his stand. The demand notice dated 14.11.2014 sent by him to the management alongwith the speed post receipt is already on record as Ex. WW1/8 and Ex. WW1/9. In the written statement at paragraph eight of the para-wise reply it is admitted by the management that it had received the legal notice sent by the workman. The management despite receiving the legal notice never gave any reply to the same. This conduct of the management was unbecoming of a good employer and even a good corporate citizen. If a workman is sending a written notice to its employer mentioning his grievance, it is at least the moral obligation of the employer to respond to such a notice and explain to the workman, ( its ex-employee of sixteen years) why the management does not agree with the demands raised by its ex-employee. Of course, there is no legal obligation upon the management to reply to such a demand notice, however not replying to the legal notice indeed raises some doubts about the intention of the management.
LIR No. 2576/2017 108.6 Further, the workman had approached the Labour Commissioner and reconciliation officer also seeking his re- employment and back wages from the management and that is how, this reference came to this court. Admittedly the management participated in the proceedings before the conciliation officer and even filed its reply but the dispute could not be resolved. This act of the workman sending a demand notice at the admittedly correct address of the management, approaching the Labour Re-conciliation Officer/Commissioner with his grievance and then agitating the matter and pursuing it before this court for last almost six years now, shows that he was keen at the time of his termination on working with the management. What other evidence can a worker lead to show that he was always keen on working but was not allowed to report for his duties by the management?
8.7 On the other hand, as the management took the defence that the workman had abandoned his job and voluntarily stopped reporting for his duties after August 2016, the onus was upon it to show that the workman had deliberately abandoned his services and while the management had no problem with his being in its employment, it was the workman who stopped coming to his duties.
8.8 Throughout the trial, management miserably failed to show voluntary resignation by the workman. The case of the LIR No. 2576/2017 11 management since the beginning was that the workman resigned from his duties therefore it was under an obligation to establish such resignation especially in the face of the clear deposition of the workman that he never resigned but was unlawfully terminated. No evidence was led by the management to establish such resignation in the entire para-wise reply in the written statement. It is nowhere mentioned on which date the workman resigned, to whom he offered his resignation, who accepted such a resignation and how the full and final account of the workman was settled. No resignation letter was filed by the management despite the clear admission by the management witness in his cross-examination recorded on 17.05.2023 that the management used to maintain all the prescribed records regarding the attendance, payment of wages and bonus, etc., of it's employees. Thus, there is no material before the court to believe that the workman had resigned from his employment. For reasons best known to it, the management did not file the relevant record during the trial.
8.9 Another defence taken by the management was that the workman even introduced the management to one 'Mr. Ritesh' as a substitute driver while voluntarily quitting his job. No evidence to substantiate this evidence was ever led. The said substitute 'Mr. Ritesh' was never summoned in the witness box, despite the fact that MW1 stated in his cross-examination that Mr. Ritesh was still in their LIR No. 2576/2017 12 employment. Thus, he never deposed that he was introduced to the management by the workman, while he resigned. No record was filed to show the joining and regular attendance of the said 'Mr. Ritesh Kumar' through out the trial. Therefore, this defence also does not inspire any confidence.
8.10 Further, during the course of arguments Ld. Counsel/AR for the management also argued that the document 'Mark C' and 'Mark D' show that the workman had taken advance from the management regularly and was paid his salary till August 2016 which established that the workman had voluntarily resigned. This argument has no merit. First of all, these documents 'Mark C' and 'Mark D' have not been duly proved by the management in evidence and therefore no reliance can be placed on these documents. These documents are some documents on plain piece of paper and seem to be print outs of some entries recorded on a computer. These documents are not supported with a certificate u/s 65 B of the Indian Evidence Act. It is not mentioned in the entire evidence or pleadings as to who prepared these documents and when they were prepared? The original ledgers were not produced before the court. The copies produced did not even bear the stamp of the management or signatures of any one from the management. Thus, these documents cannot be said to have been ever duly proved by the management, so no reliance can be placed on these documents.
LIR No. 2576/2017 138.11 In the alternative even if these documents are considered (for the sake of arguments) to have been duly proved, even then these documents do not establish the voluntary resignation of the workman. At best these documents show that the workman had taken some advance from the management against his salary. Now mere taking of advance or even non-re-payment of the same can be no ground for termination of employment of a workman. Neither does taking of advance in any way show that the workman did not want to work further with the management after having worked for 16 years.
8.12 Thus, the management miserably failed to show 'resignation' by the workman. Thus, this court is satisfied that while the workman has established that his services were unlawfully terminated by the management, the management on the other hand failed to show that the workman had voluntarily resigned. This issue is accordingly decided in favour of the workman and against the management.
Issue no. 3 - Whether the workman Sh. Mukesh S/o Late Sh. Ramphal has left the services on his own? OPM 8.13 In view of the discussions and findings given in issue No.2 above, it is held that the management failed to prove that the workman LIR No. 2576/2017 14 has voluntarily resigned from his services. This issue is accordingly decided in favour of the workman and against the management.
RELIEF
9. Coming now to the relief to which the workman is entitled. Considering the facts of the case, the age of the workman today, the length of his service, long pendency of this matter, this court is of the view that ends of justice would be met by granting lump sum compensation to the workman instead of reinstatement. Thus, taking into account the length of service of the workman, nature of his duties, I award a lump sum compensation of Rs. 2,50,000/- (Rupees Two Lakhs Fifty Thousand only) in favour of the workman and against the management, which includes litigation expenses. The management is directed to pay the said amount within a period of one month from the date of publication of this award. In case of non- payment, interest @ 6% per annum from the date it becomes due, till the time it is realized, shall be paid by the management to the workman. Reference is answered accordingly.
10. Accordingly, the statement of claim as filed by Mukesh against M/s Neeraj Paper Marketing Ltd., is hereby allowed.
LIR No. 2576/2017 1511. The attested copy of the award be sent to the Office of the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication, as per rules.
12. Judicial file be consigned to Record Room, as per rules, after due compliance.
Announced in the Open Court
today on 06.09.2023 MONIKA SAROHA
Presiding Officer, Labour Court -2
Rouse Avenue Courts,
New Delhi.
LIR No. 2576/2017