Delhi District Court
Monu Singh S/O. Shri Akbal Bahadur Singh vs M/S. Cinturones Alvi (India) Pvt. Ltd on 31 August, 2015
Monu Singh Vs. M/s. Cinturones Alvi (India) Pvt. Ltd. ID No. 111/10
BEFORE LABOUR COURT - XI: KARKARDOOMA COURTS: DELHI
PRESIDING OFFICER: Mr. ANAND SWAROOP AGGARWAL
(Delhi Higher Judicial Service)
(Additional District & Sessions Judge, Delhi)
DIRECT INDUSTRIAL DISPUTE (DID) NO. 111/10
UNIQUE CASE IDENTIFICATION NO. 02402C0104052010
In the matter of :
Monu Singh S/o. Shri Akbal Bahadur Singh
R/o. T248, Mangol Puri, Delhi. ......... Workman
Vs.
M/s. Cinturones Alvi (India) Pvt. Ltd.
71/6 M Rama Road Industrial Area,
Moti Nagar, New Delhi110015. ..........Management
Date of Institution : 17.03.2010
Date of reserving for award : 19.08.2015
Date of award : 31.08.2015
STATEMENT OF CLAIM FILED BY WORKMAN U/S. 10 (4A) OF THE
INDUSTRIAL DISPUTES ACT, 1947
AWARD
1. CASE OF THE WORKMAN AS PLEADED IN STATEMENT OF CLAIM
FILED On 17.03.2010 U/S. 10 (4A) OF THE INDUSTRIAL DISPUTES ACT, 1947.
i) Workman was employed with management since December 2007 at the post of
'Helper' and his last drawn wages were @ Rs. 4,000/ per month.
ii) Workman always performed his duties with hard labour and due diligence, never
gave any chance of complaint to the management in any manner nor workman was
charge sheeted by the management.
iii) The management did not provide the various legal facilities to the workman i.e.
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appointment letter, wages slip, leave book, bonus, P.F., ESI etc. which were orally
demanded by the workman from the management various times but the management did
not provide the same.
iv) The management was not making payment of the earned wages in time. The
workman demanded his legal facilities and earned wages from the management again and
again. On 12.11.2009 the proprietor of the management obtained the signatures of the
workman on blank papers, vouchers etc. under coercion and threats and illegally
terminated the services of the workman on 12.11.2009 without any notice or information
and also did not pay the retrenchment compensation and notice pay to the workman. The
management also withheld the earned wages and overtime payment of the workman for
the months of October and November 2009.
v) Thereafter the workman lodged a complaint dated 18.11.2009 before the Deputy
Labour Commissioner, Labour Office, Karam Pura, New Delhi through labour union
against the management. Labour Inspector visited the management's establishment and
tried to impress upon the management to take the workman back on duty and pay him
earned wages but the management despite accepting the workman as his employee did
not reinstate the workman on his duty.
vi) The workman also lodged a complaint dated 27.11.2009 to the SHO, P.S. Moti
Nagar, Delhi through union against the illegal acts of the management. However the said
complaint could not yield any result.
vii) The workman also sent a demand letter dt. 28.11.2009 to the management sent
through Regd. AD by the labour union which has been served to the management. The
AD card duly acknowledged by the management has been received back by the said
union. However despite service of the demand letter the management did not pay any
heed to same.
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viii) Thereafter the workman filed an application dated 30.11.2009 before the
Conciliation Officer, Labour Officer, Karam Pura, New Delhi through labour union. The
management appeared before the Conciliation Officer but due to adamant attitude of the
management the conciliation failed.
ix) The abovesaid acts of the management are highly illegal, unjust, improper,
unconstitutional and against the provisions of Industrial Disputes Act 1947.
x) The workman is unemployed since his illegal termination by the management.
With these averments workman prayed for an award for his reinstatement in
service with full back wages, continuity of service and all consequential benefits
alongwith 18% interest and an order directing the management to pay the earned wages
of the workman for the months of October and November 2009 in the interest of justice.
2. MANAGEMENT PROCEED EXPARTE
Notice was issued to management and vide orders dated 16.04.2010 and
23.07.2010 one Mr. R. K. Singh working as Clerk (Store keeper) with management
appeared for management. Copy of claim was supplied to him and case was adjourned to
05.10.2010 for filing of proper authorization and WS by the management. However on
08.11.2010 none appeared for management despite repeated calls of matter till 2:45 PM
and, hence, management was proceeded exparte.
3. EXPARTE EVIDENCE OF WORKMAN
Workman in exparty evidence examined himself as WW1 Mr. Monu Singh and
tendered his examinationinchief vide affidavit Ex. WW1/A. Workman relied upon
documents namely Ex. WW1/1 - Complaint dated 18.11.2009; Ex. WW1/2 - Report
dated 07.12.2009 of Labour Inspector; Ex. WW1/3 - Complaint dated 27.11.2009 made to
SHO PS Moti Nagar; Ex. WW1/4 - Demand Notice dated 28.11.2009; Ex. WW1/5 -
Postal Receipt; Ex. WW1/6 - Acknowledge Due Card; Ex. WW1/7 - Claim filed before
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Conciliation Officer. Exparte evidence of workman was closed on 29.08.2011.
4. EXPARTE AWARD
On 13.10.2011 Dr. P.S. Malik POLCXI, Karkardooma Courts Delhi passed ex
parte award granting the following relief to workman :
"9. From the documents as relied upon by the workman, the claim is
proved as uncontroverted. As a result of this proved claim of the workman,
he is found entitled to the relief of reinstatement in the services at the same
post and salary as he was on the date of his alleged termination. He is
further held to be entitled to all the consequential benefits. The workman is
further held entitled to receive two months salary i.e. October and
November 2009. He be also given 40% of the back wages from the date of
his alleged termination till the date he is actual reinstated in the services
alongwith an interest of 18% P.A. counted from the date if fell due to the
date of actual realization."
5. APPLICATION OF MANAGEMENT SEEKING SETTING ASIDE OF EX
PARTE AWARD DATED 13.10.2011 AND EXPARTE ORDER DATED 08.11.2010
(M.A. No. 30/12).
On 22.08.2012 management moved an application for setting aside of exparte
award dated 13.10.2011 and exparte order dated 08.11.2010. Workman filed reply to this
application. Vide order dated 29.07.2013 this application was allowed subject to payment
of cost of Rs.5,000/ payable by management to workman. Cost was paid to workman on
13.08.2013.
6. STAND TAKEN BY MANAGEMENT IN THE WRITTEN STATEMENT OF
DEFENCE.
Management in its WS, while denying the case as pleaded by workman in the
statement of claim, pleaded that workman was employed by the w.e.f. 21.10.2009 as a
'helper' at monthly wages of Rs.4000/ and an appointment letter to this effect was issued
to workman. The said appointment letter is bearing the signatures of workman as proof
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of receipt of the same. The workman worked with the management only till 10.11.2009
on which date workman expressed his desire to leave the employment of the
management. A sum of Rs.2324/, after deduction of Rs.324/ towards EPF and Rs. 48/
toward ESIC, was paid to workman in lieu of his wages for the period from 21.10.2009
till 10.11.2009. A receipt/agreement dated 10.11.2009 was signed by the workman to this
effect in the presence of Sh. Rajesh Kumar and Ram Kumar Singh and the workman had
also put his left thumb impression upon the said receipt/agreement in acceptance of the
terms of the same. Mr. Rajesh Kumar and Mr. Ram Kumar Singh had also put their
signatures upon the said receipt/agreement as witnesses. During the period of
employment of workman, workman was provided with all statutory facilities like EPF
and ESIC etc. The attendance/or absence of the workman during the period of his
employment, as is the case with other employees, was regularly marked in the attendance
register.
Management received a letter dated 21.12.2009 from the office of Assistant
Labour Inspector. Management replied the said letter vide reply dated 06.01.2010.
Management upon the visit of the Labour Inspector had informed the Labour Inspector
about the workman having left his employment of his own will and accord after taking
his due wages and copies of the relevant documents was also given to the Labour
Inspector. At last management prayed for dismissal of the claim of workman.
7. REJOINDER
Despite opportunity given workman did not file rejoinder to the WS of
management.
8. ISSUES
Vide order dated 10.09.2013, following issues were framed:
i) Whether the workman worked with the management from December 2007
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till 12.11.2009 and his services were illegally/unjustifiably terminated by the
management? If so, what directions are necessary in the present matter? OPW
ii) Whether the workman is entitled to wages for October and November
2009? OPW
iii) Whether the workman worked with the management w.e.f. 21.10.2009 and
had himself left the employment of the management on 10.11.2009 after settling
and taking all his dues? OPM
iv) Relief.
9. EVIDENCE
Vide order dated 25.03.2014 vide ld. counsel for workman submitted that
workman is adopting his previous affidavit tendered in exparte evidence of workman.
Also workman filed his additional evidence by way of affidavit Ex. WW1/A1 while
examining himself as WW1/A1 Mr. Monu Singh and relied upon documents Muster
Roll/Attendance Register for the months of October and November, 2009 as Ex. WW1/9
and Ex. WW1/8, respectively. In his crossexamination workman was confronted with
documents namely MarkAOffice Copy of appointment letter of workman; Mark B
Receipt/agreement dated 10.11.2009. WE was closed on 22.08.2014 by ld. counsel for
workman.
Management examined MW1 Mr. C. K. Gupta Director of the management
company, who tendered his examinationinchief vide affidavit Ex. MW1/A and relied
upon documents namely Ex. MW1/1 - Board Resolution dated 05.08.2014; Ex. MW1/2
(also Mark A) - Office Copy of appointment letter of workman; Ex. MW1/3 (also Mark
B)- Receipt/agreement dated 10.11.2008 ; Ex. MW1/4 - EPF Record of management for
the period from 01.04.2007 to 31.03.2008; Ex. MW1/5 - EPF Record of management for
the period from 10.04.2008 to 31.03.2009, Ex. MW1/6 - EPF Record of management for
the period from 01.04.2009 to 31.03.2010; Ex. MW1/7 - ESIC Record of management for
the period from 01.10.2007 to 31.03.2008; Ex. MW1/8 - ESIC Record of management for
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the period from 01.04.2008 to 30.09.2008; Ex. MW1/9 - ESIC Record of management
for the period from 01.10.2009 to 31.03.2009; Ex. MW1/10 - ESIC Record of
management for the period from 01.10.2009 to 31.03.2010; Ex. MW1/11 - Attendance
Record maintained by management for the period from August 2007 to March 2008; Ex.
WW1/7 (sic to be correct Ex. WW1/9) and Ex. WW1/8- Attendance Record maintained
by management for October 2009 to November 2009; Ex. MW1/12 (Mark C) - Salary
Register for the period from November 2007 to November 2009; Ex. MW1/13 (Mark D)
- Reply, dated 06.01.2010 of the management to the notice issued by Labour Inspector;
Ex. MW1/14 ESIC Record of management for the period from 01.04.2009 to
30.09.2009.
Management also examined MW2 Mr. Ram Kumar Singh who tendered his
examinationinchief vide evidence affidavit Ex. MW2/A to prove receipt/agreement Ex.
MW1/3 (Mark B also). Management further examined MW3 Mr. Suresh Chand, Sr. SSA
from the office of EPFO who producer/proved EPF Filing Record of management for the
period from 1st April 2007 to 31st March 2010 as Ex. MW3/A (Colly. 6 pages) and MW4
Mr. Roshan Kumar, LDC from office of ESIC who produced his authority letter as Ex.
MW4/1 and attested true copies of managements ESIC contributions record available
with ESIC for the period from 01.04.2007 to 31.03.2010 as Ex. MW4/2 (Colly. 16 pages).
MW4 Mr. Roshan Kumar was not crossexamined inasmuch as on said date workman
was proceeded exparte as none appeared for workman despite repeated calls. ME was
closed on 10.03.2015.
10. ARGUMENTS
I have heard Mr. Ajit Singh Adv. for workman and Mr. Kshitij Sharda Adv. for
management and perused the material available on Judicial file very carefully. Ld.
counsel for management relied upon case laws reported as Naresh Kumar Vs. Municipal
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Corporation of Delhi 2011 (179) DLT 237.
11. My ISSUEWISE findings are as under :
Issue No.(i)
Whether the workman worked with the management from December 2007 till
12.11.2009 and his services were illegally/unjustifiably terminated by the
management? If so, what directions are necessary in the present matter? OPW
Issue No.(ii)
Whether the workman is entitled to wages for October and November 2009? OPW
Issue No.(iii)
Whether the workman worked with the management w.e.f. 21.10.2009 and had
himself left the employment of the management on 10.11.2009 after settling and
taking all his dues? OPM
All the three issue are interconnected and, thus, are being taken up under
common discussion. Hon'ble Delhi High Court in the case law relied upon by ld. counsel
for management has ruled/observed as under :
"6. It is a settled legal position of law that the initial onus, to prove that he
has worked for a continuous period of 240 days preceding the date of his
alleged termination is on the workman. It is further not in dispute that for
applicability of Section 25-F of the I.D. Act, the workman, either through
oral or documentary evidence has to discharge the initial onus for proving
the factum of his employment with the management for a continuous period
of 240 days. In the event of not being in possession of any documentary
evidence he can very well summon the documentary evidence from the
management or from any other statutory authorities where the
management has shown the employment of the workman. After the
discharge of the initial burden by the workman the onus would shift on the
respondent management to produce such cogent and reliable evidence so
as to demolish the case of the workman. It is also no more res Integra that mere filing of an affidavit alone would not be sufficient to prove the factum of employment or the duration of the period of employment for which the workman has worked with the management......."
Workman in his crossexamination deposed that "..... I have not filed any documentary evidence to prove that I have been working with the management prior to Page 8 of 11 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/31.08.2015 Monu Singh Vs. M/s. Cinturones Alvi (India) Pvt. Ltd. ID No. 111/10 21.10.2009 except the documents which are on record....". It is noted that none of the documents relied upon by the workman discharge the onus on the workman regarding issue no.1. Workman in his crossexamination also deposed that ".... It is correct that my attendance was regularly marked during the period of my employment....".
Workman himself is relying upon documents Ex. WW1/8 and Ex. WW1/9. In Ex. WW1/9 MUSTER ROLL for October 2009 attendance of workman is marked from 21.10.2009 onwards and in Ex. WW1/8 - Muster Roll for November 2009 attendance of workman marked upto 10.11.2009 with remarks L: 10.11.09 (i.e. left on 10.11.2009). There is no explanation from the side of workman as to why his attendance has not been marked in Ex. WW1/9 - Muster Roll for October 2009 for the period prior to 21.10.2009 if workman was really employed with management since December 2007 and attendance of workman was regularly marked during the period of his employment with the management. Workman has also not examined any coworker to prove that worked with the management since December 2007 till 12.11.2009. Other documentary proof produced by management on judicial file support the case as pleaded by management in the WS. MW1 Mr. C. K. Gupta in his crossexamination has been made to depose as under : "......Management has been providing legal facilities to the employees as per labour rules i.e. salary, leave, bonus, PF, ESI. PF and ESI facility is provided to employees entitled to if from the date of appointment. PF and ESI wee provided to workman from the date of his joining. Bonus and leaves were to be allowed to workman as per rules. ESI card is given by the concerned department and same is to be got prepared by workman himself. Q. It is put to you, you have not placed on record any document to show that ESI no. and PF no. of the workman was intimated to him on the date of his joining with the management. What have you to say? A. The number of ESI and PF were generated by the department after submissions of records and workman left the services before that....." Page 9 of 11 (Anand Swaroop Aggarwal)
POLC XI/KKD/Delhi/31.08.2015 Monu Singh Vs. M/s. Cinturones Alvi (India) Pvt. Ltd. ID No. 111/10 Keeping in view the short tenure of employment of workman with the management the depositions of MW1 Mr. C. K. Gupta in reply to question appears to be quite plausible. Also it is noted that workman in the statement of claim pleaded that when the workman demanded legal facilities and earned wages from the management again and again on 12.11.2009 the proprietor of the management obtained the signatures of the workman on blank papers, vouchers etc. under coercion and threats and illegally terminated the services of the workman on 12.11.2009 without any notice or information and also did not pay the retrenchment compensation and notice pay to the workman. But these averments does not find mention in the complaint Ex. WW1/1 made by workman to the Asstt. Labour Commissioner. This shows that workman improved upon his version in the statement of claim. This improvement is amounting of contradiction. These averments also suggest that signature of workman are there on various documents relied upon by management but workman in his crossexamination denied his signatures on these documents but, also, did not make voluntary depositions corresponding to above referred averments made by workman regarding proprietor of management obtaining (allegedly) his signatures on blank papers etc. under coercion and threats on 12.11.2009. Also it is noted that MW1 Mr. C. K. Gupta in his crossexamination has not been suggested on the lines of these averments. This all suggest that stand of workman regarding the circumstances under which management allegedly terminated his services quite possibly is not true and the stand taken by management in the totality of facts and circumstances of this case is more probable. It is noted that workman/ld. counsel for workman in the course of cross examination of MW1 Mr. C. K. Gupta failed to shake credit of this witness and extract facts in support of material averments made in the statement of claim. Accordingly issue no.1 & 2 are decided agreement the workman and issue no.3 is decided in favour of management.
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In view of my findings on issue no.1, 2 and 3, workman is held to be not entitled to any relief. Parties to bear their own cost.
12. Copy of this award be sent to the office of concerned Deputy Labour Commissioner, Delhi for further necessary action on his part.
13. File be consigned to Record Room after completion of due formalities. (Pronounced in the open court on 31.08.2015) (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi Page 11 of 11 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/31.08.2015