Delhi District Court
Mohd. Akhtar Ansari vs M/S A. R. International on 8 April, 2022
IN THE COURT OF SH. PAWAN KUMAR MATTO,
(ADDITIONAL DISTRICT & SESSIONS JUDGE) PRESIDING
OFFICER, LABOUR COURT NO. 02, ROUSE AVENUE
DISTRICT COURTS:
NEW DELHI
LID No. 178/16
Date of institution 07.10.2014
Date of Award 08.04.2022
Mohd. Akhtar Ansari
S/o Sh. Mansur Ansari
R/o H. No. T-2259, Gali no. 3 near Shiv Mandir
Baljeet Nagar, Shadi Pur, New Delhi-08
C/o Delhi Pradesh Kamgar Ekta Sangh (regd.)
Plot no. 1,Gali no.2, Dabri Village
New Delhi-45 .....Claimant(Workman).
Vs.
M/s A. R. International
53-A/4/1, Second floor
Rama Road Industrial Area
New Delhi -15 .....Management.
AWARD
1. This award of mine will dispose off the statement of
claim filed by the claimant namely Mohd. Akhtar Ansari against
the management namely M/s A. R. International
2. The claimant has filed statement of claim stating therein
that he was working in the management as Cutting Master since
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August, 1998 and his last drawn wages were Rs. 13,000/- per
month. He did not give any chance of complaint to the
management, during the period of his service.
3. The claimant has alleged that he was not provided the
facilities viz. Appointment letter, Attendance Card, Gazetted
Holidays, ESI, PF, Bonus etc. and the claimant was
continuously demanding for the same facilities from the
management. The claimant has also stated that about 50
workers were working in the management on different posts. He
has alleged that the management was deducting the amount
from his salary since August, 1998, in the names of ESI and PF,
but, he was never provided these facilities. The claimant has
also stated that in view of repeated demands raised by him,
after 15 years of services of the claimant, the management had
shown the fake date of his appointment as May, 2013 and
provided the facility of ESI,but, the management did not
provide the facility of PF nor it had deposited the amount of PF
in the office of provident fund. The claimant has also alleged
that he had protested for writing wrong date of appointment in
the card of ESIC and in view of non-deposit of his PF in the PF
department and in view of such protest made by him, the
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management got annoyed and he was forcibly made to write
resignation letter on dated 13.12.2013 and without prior notice
and without making of any payment, his services were illegally
terminated by the management on dated 13.12.2013.
4. The claimant has also stated that he had filed a complaint
on dated 18.02.2014 in the Labour Office through his union. He
has alleged that despite of the direction of the Labour
Inspector, the claimant is neither reinstated nor his dues were
paid.
5. The claimant has also stated that on dated 07.03.2014, a
demand notice was sent to the management, but, the
management has failed to reply thereof.
6. The claimant has also stated that he had filed statement of
claim before the Conciliation Officer, from where, notices were
issued to the management repeatedly, but, the management
deliberately did not appear in the Labour Office, so, the
Conciliation Officer had given his report bearing No.
ID/120/CO-1/14/ WD/LAB/8849 dated 22.07.2014.
LID No. 178/16 Page No.3 /75
7. The claimant has also stated that the management did not
appear in the Labour Office, but, the management was watching
the proceedings and when, the management had come to
understand about the fact that the claimant was going to the
Labour Court, then, the management became nervous and on
dated 20.08.2014 at 4:00 PM, when the claimant was passing in
front of the establishment of the management, the proprietors
of the management had again called to the claimant and forcibly
obtained his signatures after putting him under threat, on blank
papers, printed performas with revenue stamps and other
documents,but, the management did not make payment of any
due. He has also alleged that he had made complaint (in
writing) dated 21.08.2014 before the DCP (Police
Administration), Rajouri Garden against such Act of the the
management.
8. The claimant has also stated that the management had
terminated the services of the claimant without serving any
Notice, Show Cause Notice, without issuing any chargesheet,
without conducting any domestic inquiry, without payment of
any due, gratuity, amount of bonus and leave encashment and
the seniority of the claimant was also ignored, as, the workers
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junior to the claimant are still working in the management and
new workers are also recruited by the management. Thus, the
management has failed to comply with the provisions of law at
the time of terminating his services and thus, the management
has violated the provisions of Section 25(F), 25(G) and 25(H)
of the Industrial Disputes Act.
9. The claimant has also stated that he is unemployed since
the date of termination of his services by the management and
he is dependent on the other family members and he is facing
the financial crises. He has tried to get some new job, but, he
could not get any job. He is in dire need of the job. He has
prayed for passing an award for reinstating to the claimant with
full back wages and with all consequential benefits.
10. The notice of statement of claim were issued to the
management and on completion of service of the notice, the
management has appeared through it's Authorized
Representative and filed the written statement and contested the
statement of claim on the grounds inter alia that the claimant
had left the employment of his own on dated 14.12.2013. He
worked in the management upto 13.12.2013 and on dated
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14.12.2013, he left the job in the management and he had
received the wages for the work done by him upto 13.12.2013.
It is also stated that this claimant is not the workman under
Section 2(S) of the Industrial Disputes Act, so, he has no legal
right to lodge the present claim.
11. The management has also stated that since the claimant
has left the employment of his own, so, the claim is not
maintainable.
12. The management has also stated that as per the alleged
demand notice dated 07.03.2014, the claimant gave seven days
time to the establishment to accept his demands and he had filed
the claim before the Conciliation Officer on dated 07.03.2014,
which was pre-mature. It is also stated that the Conciliation
Officer has no jurisdiction to initiate any conciliation
proceedings, unless and until, Industrial Disputes Act came into
existence. The management has also stated that the claimant
has deliberately and malafidely levelled false allegations against
the management that the management was deducting the ESIC
and PF from his salary that too without providing any such
facility and the management has also stated that the claimant
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has levelled false allegations that the management did not apply
the facility of PF to it's employee and the management did not
deposit the amount of PF in the PF Department, despite
deduction from his salary or that the management being
annoyed, had forced the claimant to write the resignation and
terminated his services from 13.12.2013, without payment of
any amount and stated that false accusation has been made
against the management.
13. Replying to the statement of claim on merit, the
management has denied that the claimant was working in the
management since August, 1998, but, the management has
admitted that his last drawn salary was Rs. 13,000/- per month.
14. The management has denied that the claimant was
making demands for the facilities, as mentioned in his statement
of claim. It has also denied that the management did not apply
the facility of PF to it's employees. It is also denied that the
management did not deposit the amount of PF, despite of
deduction from the salary of the claimant. The management has
also stated that ESI and PF schemes were applicable to the
management in respect of coverable employees, since May
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2013 and since the monthly salary of the claimant was Rs.
13,000/-, so, he was not eligible for the EPF scheme, but, he
was covered under the ESI scheme. Accordingly, he was
provided the facility of ESI. It is also stated that since the salary
of the claimant was Rs. 13,000/- per month, so, he was not
eligible for the payment of the bonus under the payment of
Bonus Act. The management has denied that about 50 workers
were working in the management. The management has also
denied that it had deducted the amount of PF from the salary of
the claimant and stated that on the coverage of the management
under the ESI from May,2013, the share on account of ESI was
deducted and deposited with the ESIC and no deduction on
account of ESIC contribution was made prior to May, 2013. The
management has also stated that since the claimant had left the
job from 14.12.2013 and at that time, he had received the
wages for the period upto 13.12.2013 and also stated that the
claimant with his own sweet will has given in writing to the
above effect and his story of forcible obtaining his resignation is
not only after thought, but, this is abuse of process of law.
15. The management has denied to have terminated the
services of the claimant. The management has denied to have
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received any demand notice. The management has also denied
that it did not appear before the Conciliation Officer. The
management has also denied that on dated 20.08.2014 at 4:00
PM, the management had forcibly obtained the signatures of the
claimant on the blank papers, printed performas with revenue
stamp papers or that the claimant had filed any complaint before
the DCP and after denying the other allegations, levelled against
the management, the management has prayed for dismissal of
the statement of claim with cost.
16. The claimant has filed the rejoinder to the written
statement of the management, wherein, he has reiterated the
contents of his statement of claim and denied the averments
made in the written statement.
17. On the basis of the pleadings of the parties, the following
issues were framed by the Ld. Predecessor of this court, vide his
order dated 28.04.2015:-
(i) Whether the workman worked with the
management as 'Cutting Master' since August
1998 and management illegally terminated his
services on 13.12.2013 as per averments made by
workman in the Statement of claim? If So, to what
effect? OPW
(ii) Whether management on 20.08.2014 at
about 4:00 p.m., when the workman was passing
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from in front of establishment of management,
management called the workman and took the
signatures of workman on blank papers,, printed
blank proformas and other papers with affixed
revenue stamp thereon forcibly or under threat? If
so, to what effect? OPW
(iii) Whether workman worked with the
management upto 13.12.2013 and on 14.12.2013
left the job of his own accord and received wages
for his working upto 13.12.2013 and whether,
therefore, workman is not a workman under
section 2(s) of the Industrial Disputes Act, 1947
and statement of claim filed by the workman
under section 2A of the Industrial Disputes Act ,
1947 is not maintainable ? OPM
(iv) Whether present DID is without
jurisdiction in view of preliminary objection no.3
in the WS of the management ? OPM
(v) Whether workman has knowingly,
deliberately and malafidely made false allegations
in the statement of claim as alleged in
preliminary objection no.4 in the WS of the
management? If so, to what effect? OPM
(vi) Relief.
18. In order to prove his case, claimant has examined himself
as WW-1 vide his affidavit Ex. WW-1/A and in one way or the
other, he has reiterated the averments of his statement of claim
therein. He has relied upon documents Ex. WW1/1 to Ex.
WW1/22. He was cross examined by the ld. Authorized
Representative for the management. He did not examine any
other witness and closed his evidence.
19. The management has examined Sh. Sanjay Luthra as
MW1, vide his affidavit Ex. MW1/A. He has relied upon the
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Ex. MW1./1 to MW1/11. He was cross examined by the ld.
Authorized Representative for the claimant.
20. Sh. V.C. Mishra, Handwriting Expert has been examined
as MW2. He has proved his report Ex. MW2/A and CD of
photographs filed with the report Ex. MW2/B. He was cross
examined by the ld. AR for the claimant. The management did
not examine any other witness.
21. I have heard the Ld. Authorized Representatives for the
parties and perused the record.
22. Ld. Authorized Representatives for the claimant has
submitted that the workman was working in the management as
Cutting Master since August 1998 and his last drawn salary was
Rs. 13,000/- per month. During the tenure of his services, he
was never chargesheeted nor he was issued any Show Cause
Notice and the claimant was not provided any legal facilities of
PF, ESI and appointment letter and further submitted that in the
month of May 2013, he was given the facility of ESI and in the
record of ESI, his wrong date of appointment was mentioned as
17.05.2013 and submitted that the claimant has placed on
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record his ESI Card Ex. WW1/1, wherein, the date of
appointment is mentioned as 17.05.2013 and the date of
registration is mentioned as 17.07.2013. He has also submitted
that the management was deducting the amounts in the name of
PF and ESI from the salary of the claimant since 1998, but, the
management has failed to deposit the said amount in the
concerned departments of ESI and PF and further submitted that
the facility of ESI was provided to him only in the year 2013
and facility of PF was never provided to him. He has also
submitted that at the time of termination of his services on dated
13.12.2013, the claimant was made to write resignation letter by
the management forcibly and he had also filed a complaint
before the Assistant Labour Commissioner on dated
18.02.2014, copy whereof is Ex. WW1/2. He has also submitted
that the demand notice dated 07.03.2014 was also sent to the
management, copy whereof is Ex. WW1/3 and the said demand
notice was never replied by the management. He has also
submitted that thereafter the claimant had filed the statement of
claim before the Conciliation Officer, copy whereof is Ex.
WW1/5.
23. Ld. Authorized Representative for the claimant has also
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submitted that on dated 20.08.2014 at 4:00 PM, when the
claimant was passing through the establishment of the
management, he was called upon by the proprietor of the
management and obtained his signatures on various documents,
regarding which, a complaint was filed by the claimant before
the DCP (West), copy whereof is Ex. WW1/6. He has also
submitted that the management has taken the plea in it's written
statement that on dated 13.12.2013, the claimant had left the
job, whereas, on dated 13.12.2013, the services of the claimant
were illegally and unjustifiably terminated by the management.
He has also submitted that the management has denied that the
claimant was serving in the management since August 1998,
but, the management has nowhere mentioned in it's written
statement, as to from which date, the claimant was working in
the management. He has further submitted that on dated
14.01.2015, Sh. Sanjay Luthra, (who is partner of the
management) had appeared in the court and he had admitted in
the court that this claimant was serving in the management
since 2010 and it is mentioned in the ordersheet of 14.01.2015.
24. Ld. Authorized Representative of the claimant has
further submitted that the claimant has also relied upon the
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order forms Ex. WW1/10 to Ex. WW1/16 and 18. He has also
replied upon the challan Ex. WW1/17 and photocopy of
delivery challan Ex. WW1/19 to Ex. WW1/20 and submitted
that these order forms and challan placed on record go to prove
that the claimant was working in the management even prior to
the year 2010.
25. He has also submitted that the claimant has also placed
on record photocopy of his passbook, which is Ex. WW1/22,
wherein, on dated 14.12.2013, the entry reveals that only the
salary of the claimant was deposited in the account of the
workman neither the retrenchment compensation nor the notice
pay of amount or amount of gratuity were paid to the claimant
at the time of termination of services of the workman.
26. He has also submitted that the management has examined
MW2 Sh. V.C. Mishra, but, he has admitted in his cross
examination that he has not placed on record any documentary
proof to prove that he is handwriting expert and further
submitted that since this MW2, during his cross examination
has stated that he was paid for giving his report, so, his
testimony cannot be relied upon. He has also submitted that
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since the MW2 is private person, so, his opinion regarding the
alleged handwriting or alleged signatures of the claimant on Ex.
MW1/9 (Mark A) cannot be relied upon. He has further
submitted that Sh. Sanjay Luthra has been examined as MW1
and during his cross examination, he has denied that this
claimant was working in the management since 1998. He has
also submitted that in his cross examination, he has denied that
the date of appointment, mentioned in the ESI record is wrong.
He has further submitted that this MW1 Sh. Sanjay Luthra has
also admitted that this claimant was not paid bonus and he was
also not given any appointment letter and prayed for reinstating
the claimant in the management with full back wages.
27. On the other hand, the ld. Authorized Representative for
the management has submitted that the burden of proving the
issue no.1 and 2 was on the claimant and submitted that the
claimant has claimed that he had served in the management
since August 1998 and further submitted that the claimant did
not mention regarding the documents Ex.WW1/10 to
Ex.WW1/22 in his statement of claim and the said documents
were filed by the claimant alongwith rejoinder, whereas, he was
supposed to file the same with the statement of claim. He has
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also submitted that the claimant has claimed in para 1 of the
statement of claim that he had served in the management since
August, 1998 and on dated 13.12.2013, the claimant was made
to sign resignation by using force and he was not paid any
money, whereas, this claimant had written declaration on dated
14.12.2013 and resigned from the job voluntarily and he was
given the cheque of Rs. 5633/- and the said cheque was
encashed. He has further submitted that the claimant even
during cross examination has denied to have received the said
amount of Rs. 5633/-, but, when his attention was drawn toward
the copy of his passbook Ex.WW1/22, wherein, the payment of
the said amount to the claimant through cheque is also
incorporated, then, he had admitted to have received the same.
He has further submitted that since, this amount of Rs. 5633/-
was paid to this claimant on dated 14.12.2013 vide cheque and
last digits of the cheque number are also mentioned in the
declaration Ex.MW1/9 (also Mark A) and passbook Ex.
WW1/22 and this fact of payment of Rs. 5633/- to the claimant
vide said cheque on dated 14.12.2013 is also incorporated in the
passbook of the claimant Ex.WW1/22 and further submitted
that the claimant has claimed that by way of using force, he was
made to sign resignation, but, he has nowhere mentioned as to
LID No. 178/16 Page No.16 /75
what type of force was used and which person had used the
force against him for writing the resignation and further
submitted that such vague allegations have been levelled
against the management that too without specifying any person.
He has submitted that the claimant has alleged that the amount
on account of PF and ESI was deducted from salary of the
claimant, whereas at the time of his cross examination, this
claimant has admitted that only amount for the ESI was got
deducted from his salary. He has also submitted that this
claimant has levelled false allegation against the management
that the amount for ESI and PF was got deducted from his
salary by the management and the same were not deposited by
the management in the concerned departments of ESI and PF
and submitted that this is great humiliation for the management
and since at the time of cross examination of the claimant, he
has admitted that only amount for the ESI was deducted from
his salary and also admitted that facility of ESI was given to
him by the management. He has further submitted that the
claimant has claimed that he had served in the management
since August, 1998, but, he has failed to bring on record any
cogent documentary evidence to prove that he had served in the
management since August 1998. He has admitted that the
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management has not mentioned in it's written statement that as
to from which date, this claimant was serving in the
management, but as, on dated 14.01.2015, the partner of the
management had appeared and admitted that this claimant had
joined in the management in the year 2010 and submitted that
since, Authorized Representative for the claimant had also
given suggestion to the MW1, (who is the partner of the
management) that this claimant was serving in the management
since Jaunary, 2010. Thus, in view of giving of such suggestion,
it is not disputed that this claimant was serving in the
management since January 2010. He has also submitted that
the claimant has relied upon the documents i.e. order forms
dated 24.01.2001 Ex.WW1/15 and another order form dated
25.01.2002 Ex.WW1/18 and submitted that these are fabricated
documents that as this court will find that both the order forms
are same in verbatims including the order form number except
the dates mentioned thereon and submitted that it is not
probable that the same order in verbatim would be mentioned in
both the forms. He has also submitted that the claimant has
relied upon the documents Ex.WW1/10 to Ex. WW1/20, which
are forged and fabricated documents and claimant has failed to
mention as to how any of these documents goes to prove that
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the claimant had served in the management since August, 1998.
He has further submitted that the partners of management had
purchased the property baring no. XVII 2369/D-5, Village
Khampur, New Delhi vide Sale Deed dated 10.12.2003 Mark
R-2 and shifted at the said address of Khampur on dated
01.01.2004, whereas, alleged order forms and challan relied
upon by the claimant reveal that the address of the management
of Khampur is mentioned in the alleged said order forms and
challan, which are containing dates prior of December, 2003
and submitted that the property bearing XVII/2369/D-5, First
Floor, Mandirwali Gali, Shadipur, Khampur, New Delhi was
purchased by the management on dated 10.12.2003 and vide
Sale Deed, photocopy whereof is Mark R-2 and this Sale Deed
was executed in favour of Sh Sanjay Luthra and his brother on
dated 10.12.2003 and the management has shifted in the said
premises bearing no. XVII/2369/D-5, First Floor, Mandirwali
Gali, Shadipur, Khampur, New Delhi on dated 01.01.2004. So,
how could the management mention it's said address of
Khampur prior to the purchasing or shifting in the said
premises.
28. He has also submitted that MW1, who is the partner of
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the management has categorically deposed in his affidavit
Ex.MW1/A that the management had shifted at Khampur on
01.01.2004 and further submitted that the testimony of MW1
has gone unrebutted and unimpeached, as no cross examination
has been done of this witness by the Ld. AR for the claimant on
this point. He has further submitted that this claimant has failed
to bring on record any cogent documentary evidence to prove
that he has served in the management since August, 1998.
29. He has further submitted that the claimant has claimed
that he was made to sign resignation on dated 13.12.2013 by the
management. Whereas the MW1 has categorically deposed in
his affidavit Ex.MW1/A that on dated 14.12.2013, this claimant
had told to the management that he was no more desirous to do
job in the management and further submitted that such
testimony of MW1 has also gone unrebutted and unimpeached
on this point and submitted that since the testimony of MW1
has gone unrebutted and it is also corroborated with the
declaration Ex.MW1/9 (also Mark A) vide which, the claimant
had resigned from the job dated 14.12.2013 and further
submitted that at the time of cross examination of MW1, he was
not given any suggestion that the claimant did not come in the
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management on dated 14.12.2013. he has further submitted that
since, the claimant had resigned from the job and on dated
14.12.2013 vide Ex.MW1/9 (also Mark A) and this declaration
Ex.MW1/9 (also mark A) is written by the claimant is also well
proved by the handwriting expert MW2 vide his report Ex.
MW2/A and from the testimony of the claimant, it is proved
that it is full of contradiction and the testimony of the MW1 has
gone unrebutted and unimpeached, which is also corroborated
by the report of handwriting expert, which is Ex. MW2/A, and
he has also submitted that the claimant during his cross
examination has admitted that the contents, which were written
by him were same as contents of Mark A and submitted that in
view of said admission, it is clear that this claimant had written
Ex.MW1/9 (also Mark A) and he has deliberately denied to
have written the same. But, as the handwriting expert has
proved the handwriting and signatures of the claimant on mark
A, so, it has to be relied upon.
30. He has also submitted that the claimant has claimed in his
cross examination that he had raised demands for legal facilities
in the year 2005, but, he has failed to prove of record that he
had ever worked in the management in the year 2005 and
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submitted that the claimant has claimed in view of making
demands for legal facilities, his services were terminated in the
year 2013 and submitted that the case set up by the claimant is
improbable even on the yardstick of preponderance of
probability and from the unrebutted and unimpeached testimony
of the MW1 and the report of handwriting expert, it is proved
that the claimant had resigned from the job on dated
14.12.2013, so, he is not entitled to get any relief.
31. He has also submitted that as per provision of the
payment of Bonus Act, the claimant did not fall in the definition
of 'employee' as he was getting more than 10000 salary. So, he
was not entitled to get any bonus at the same time, he has also
submitted as per the Employee Provident Fund Scheme, the
claimant was also not entitled to get the facility of PF, as he was
getting more than 6500/- salary so, PF was not given to the
claimant.
32. Ld. Authorized Representative for the management has
also submitted that from the cross examination of the claimant,
it is clear that he has not disputed the contents of the declaration
regarding the resignation Ex. MW1/9 (Mark A),as, during his
LID No. 178/16 Page No.22 /75
cross examination, he has admitted that the contents of Ex.
MW1/9 (and also Mark A) were same which was made to right
by the management. He has also submitted that the claimant
has nowhere pleaded that any dictation was given to him by any
person for writing Ex MW1/9 (mark A). He has also submitted
that the testimony of MW1 has gone unrebutted and he has
stated in his affidavit Ex. MW1/A that this claimant had came
on duty on dated 14.12.2013 and stated that he would not work
in the management any more and no cross examination has been
done to the MW1, on this point. Thus, the stand taken by the
claimant that he was made to right any resignation on dated
13.12.2013 is falsified, as, the claimant had come in the
management on dated 14.12.2013 and then, he had told to the
management that he would not work any more in the
management. He has also submitted that since the claimant has
claimed that he was made to resign on dated 13.12.2013, then,
the claimant was not supposed to come on duty on 14.12.2013
and submitted that the burden of proving that his services were
illegally and unjustifiably terminated by the management on
dated 13.12.2013, was on the claimant, but, the claimant has
failed to prove the same and from the unrebutted testimony of
MW1, it is proved that this document Ex. MW1/9 (also mark A)
LID No. 178/16 Page No.23 /75
was written by the claimant on dated 14.12.2013.
33. He has also submitted that the claimant has forged and
fabricated the document Ex. WW1/10 and Ex. WW1/18 and as
the MW1 has testified that the management was shifted at
XVII/2369/D-5, First Floor, Mandirwali Gali, Shadipur,
Khampur, New Delhi in the year 2004 and the copies of the
Sale Deed regarding the purchase of the premises at
XVII/2369/D-5, First Floor, Mandirwali Gali, Shadipur,
Khampur, New Delhi is also placed on record, as Mark R-2 and
since the MW1 has also testified the same and his testimony is
also not rebutted nor any cross examination is done by the
Authorized Representative of the workman, on this point and
submitted since the premises situated at Khampur was
purchased by the management on dated 10.12.2003, so, the
address of the management on any document of the
management prior to the year 2003 could not be written, as, the
order forms and challan, relied upon by the claimant are
bearing dates prior to the year 2003 and submitted that since the
management was not running its establishment at Khampur
prior to 2004 and the perusal of order forms Ex. WW1/15 and
Ex. WW1/18, show that the contents of these two order forms,
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number thereof are in same verbatims except the dates
mentioned thereon and submitted that the claimant has forged
the order forms and challan Ex. WW1/10 to Ex. WW1/20. He
has also submitted that the claimant has nowhere mentioned in
his complaint Ex. WW1/2, demand notice Ex. WW1/3 and
statement of claim filed before the conciliation officer Ex.
WW1/5 that the management used to deduct the amount of PF
and ESI since 1998 from his salary, but, at the time of filing the
statement of claim in the court, he has levelled additional false
allegations against the management and submitted that the
testimony of the claimant is full of contradictions. The claimant
has failed to prove on record that he had served in the
management since 1998 or that his services have been
terminated by the management on dated 13.12.2013.
34. The Ld. Authorized Representative for the management
has also submitted that the claimant had pleaded in the
statement of claim that the management had used force for
making him to write resignation, but, he failed to lead any
evidence as to what type of force was used by the management
and submitted that in view of vague allegations levelled against
the management, the testimony of the claimant cannot be relied
LID No. 178/16 Page No.25 /75
upon.
35. He has also submitted that the claimant has introduced
afterthought version in the statement of claim filed in the court
as in the Ex.WW1/3 i.e. demand notice dated 07.03.2014 and
Ex.WW1/5 i.e. statement of claim, filed before the Conciliation
Officer, the claimant had nowhere pleaded that amount of ESI
and PF was deducted by the management from his salary. But,
in the statement of claim filed in the court, he has levelled such
false allegations against the management.
36. He has also submitted that the perusal of the demand
notice dated 07.03.2014 Ex. WW1/3 reveals that the claimant
had demanded therein to comply with the demands of the
claimant within 7 days from the date of receiving the said
demand notice. But, the perusal of the failure report reveals that
the claimant had filed the statement of claim before the
Conciliation Officer on the same day i.e. 07.03.2014 and further
submitted that as per Section 12 of the ID Act, it was the duty of
the Conciliation officer to ensure about the existence of the
Industrial Disputes and since the demand notice was sent by the
claimant to the management on dated 07.03.2014, so, the
LID No. 178/16 Page No.26 /75
claimant could wait for the time given by him to the
management to comply with the demands. But, the Conciliation
officer did not take care that on the same day i.e. 07.03.2014,
the claimant had filed the statement of claim before him. So,
the claim filed by the claimant before the conciliation officer on
dated 07.03.2014 was premature and there was no Industrial
Disputes on 07.03.2014 and further submitted that since, this is
the case of resignation from job by the claimant, so, the
claimant is not a workman after resignation by him on dated
14.12.2013 by way of writing Ex.MW1/9(and also Mark A).
37. He has further submitted that the claimant has claimed in
his statement of claim that the management has deducted the
amount from his salary in the name of ESI and PF that too
without providing such facilities since August, 1998, but, the
claimant has failed to prove that he had worked in the
management since August, 1998 or that the management had
deducted the amount on account of ESI and PF since 1998. He
has further submitted that the claimant during his cross
examination had admitted that no other amount was deducted
by the management except ESI contribution. He has further
submitted that as per the provision of clause (f) of para 2 of the
LID No. 178/16 Page No.27 /75
Employees Provident Fund Scheme 1952, the claimant was not
entitled to get the facility of PF. Therefore, the issue No. 3 to 5
may be decided in favour of the management and issue no.1 and
2 may be decided against the claimant and prayed for the
dismissal of the statement of claim.
38. I have given thoughtful consideration to the submissions
made by the Ld. Authorized Representatives of both the parties
and perused the record.
39. The perusal of the record reveals that claimant has
claimed in his statement of claim that he had joined the services
in the management in the month of August, 1998 and his last
drawn wages were Rs. 13,000/- per month and on dated
13.12.2013, he was made to write resignation letter forcibly and
without prior notice and without making any payment, his
services were illegally terminated by the management on dated
13.12.2013.
40. The management has denied to have terminated the
services of the claimant and claimed that on dated 14.12.2013,
the claimant had told to the management that he was no more
LID No. 178/16 Page No.28 /75
desirous to do the job and he had left the job after writing the
same and his wages upto 13.12.2013 were also paid. The
management has also denied that the claimant was forced to
write any resignation.
41. The burden of proving issue no. 1 and 2 was on the
claimant, whereas, the burden of proving issue no.3,4 and 5 was
on the management. In order to avoid repetition, all the issues
have been taken together for discussion.
42. In order to prove his case, claimant has examined himself
as WW-1 vide his affidavit Ex. WW-1/A and in one way or the
other he has reiterated the contents of his statement of claim
therein. He has relied upon the documents viz ESI Card Ex.
WW1/1, copy of complaint Ex. WW1/2, copy of demand notice
dated 07.03.2014 Ex. WW1/3, Postal receipt Ex. WW1/4, copy
of statement of claim filed before the Conciliation Officer Ex.
WW1/5, copy of complaint dated 21.08.2014, filed before the
DCP, West Ex. WW1/6, copy of complaint dated 15.12.2014
addressed to Deputy Labour Commissioner, North West Ex.
WW1/7, Original postal receipt Ex. WW1/8, Original postal
receipt Ex. WW1/9, the order form dated 22.04.2009 Ex.
LID No. 178/16 Page No.29 /75
WW1/10, order form dated 22.04.2009 Ex. WW1/11, order
form dated 23.04.2009 Ex. WW1/12, order form dated
23.04.2009 Ex. WW1/13, order form dated 24.04.2009 Ex.
WW1/14, order form dated 24.04.2001 Ex. WW1/15, order
form dated 26.04.2009 Ex. WW1/16, Challan dated 09.08.2000
Ex. WW1/17, order form dated 25.01.2002 Ex. WW1/18,
Delivery challan dated 17.10.2013 Ex. WW1/19, delivery
challan dated 17.10.2013 Ex. WW1/20, Discharge summary
sheet of the claimant Ex. WW1/21, photocopy of passbook of
the claimant Ex. WW1/22.
43. He was cross examined by the ld. Authorized
Representative of the management and during his cross
examination, he has deposed that he has signed the complaint
dated 08.02.2014, copy of which is Ex. WW1/2 after reading it's
contents. He has further deposed that he had got written his
each and every grievance against the establishment in the above
said complaint and also stated each and every fact relating to
the present case. He has also deposed that he has seen original
document relating leaving of employment Mark A, but, same is
neither written nor signed by him. He has deposed that he can
read and write Hindi.
LID No. 178/16 Page No.30 /75
44. Thereafter, the witness was directed to tender his
specimen writing and signature mentioning therein the
wordings contained in Mark A. This witness had written Ex.
WW1/A.1 to A.6 in his own handwriting and signed the same.
45. He has deposed that he has not received the amount of
Rs. 5633/- mentioned in Mark A. He has deposed that he has
not deposited any cheque for a sum of Rs 5633/- in his saving
account. He has denied that he was paid Rs. 5633/- on dated
14.12.2013. He has further deposed that Ex. WW1/22 is the
copy of his bank passbook. He has admitted that the said
passbook contains entry of credit of Rs. 5633/- on dated
14.12.2013 and the said encircled entry appears at point A in
Ex. WW1/22. He has also deposed that he was possessing the
passbook of the above said saving account. He has again said,
the passbook was not remaining in his possession, but, it used to
be in the possession of "Bhai Sahab" namely Sanjay Luthra. He
has also deposed that this passbook remained in possession of
above said Sanjay Luthra till date 15.12.2013. He has deposed
that this passbook was handed over to him through one Sh.
Ram Ashish. He has admitted that he was paid monthly salary
LID No. 178/16 Page No.31 /75
by the management by account payee cheque. He has further
admitted that the said salary used to be got credited in the
saving bank account, passbook of which is Ex. WW1/22. He
has further admitted that he used to withdraw cash against the
amount got credited in this account. He has further admitted
that he used to tally the amount credited and amount debited in
this account, regularly. He has further deposed that he has
brought the original passbooks, which are two in number and
their photocopy is Ex. WW1/22. He has also deposed that the
salary cheque from 18.02.2011 stood credited to his bank
account mentioned above and the credit entries figures at points
B to Z11 are relating to the payments of monthly salary. He has
also deposed that he was in knowledge of credit of Rs. 5633/-in
his aforementioned saving account. He has voluntarily deposed
that, it had come to his knowledge on dated 15.12.2013, when
Ram Ashish gave him the passbook. He has also deposed that
he had lodged written protest letter against the forcible
resignation and credit of the above said amount of Rs. 5633/- in
between the period of 15.12. 2013 to 18.02.2014. He has again
said that he had never lodged any protest letter relating to the
credit of Rs. 5633/- in his saving account. He has further
deposed that for the first time, he lodged the protest against the
LID No. 178/16 Page No.32 /75
forcible resignation on 20.08.2014, but, he has not lodged any
protest between 14.12.2013 to 18.02.2014 relating to his
allegation of the forcible resignation.
46. He has further deposed that he used to receive his
monthly salary in between 7 to 10 th day of the month following
the month for which salary was due. He has admitted that
salary for his working in December 2013 was payable only in
January 2014, as per the past practice and payment practice of
the salary . He has deposed that he has not written any
communication to the management offering to return Rs. 5633/-
credited in his account.
47. He has further deposed that he has stated the name of the
person, who terminated his services in his written
communication/pleadings to the Union only and one
communication to the DCP Office and after seeing the copy of
his demand notice dated 07.03.2014 Ex. WW1/3 the witness has
deposed that name of said person is mentioned in this document
and thereafter, he has admitted that the name of said person is
not mentioned in the same. He has voluntarily deposed that the
name of the factory is mentioned. He has further deposed that
LID No. 178/16 Page No.33 /75
he was not issued any written order of termination of his
services by the management.
48. He has further deposed that document Ex. WW1/17
produced by him is of 09.08.2000. He has further deposed that
he is not aware of contents of this document except the numbers
appearing in the encircled portion at point A. He has deposed
that he is not aware if encircled portion B mentions Excise
Registration of management establishment. He has deposed that
he is not aware, if the management establishment was registered
for the first time under law Excise Law in the year 2003.
49. The document Ex. WW1/16 produced by him is of
26.04.2001. He has deposed that the document Ex. WW1/15
produced by him is of 24.04.2001. He has denied that on
24.04.2001 and 26.04.2001, the premises bearing no.
XVII/2369/D-5, First Floor, Mandir Wali Gali, Shadipur,
Khampur, New Delhi 110008 was neither possessed by the
management establishment nor its partner. He has denied that
M/s A.R. International was not operating from the
aforementioned premises on any of the above two dates. He has
denied that the aforementioned premises was purchased by the
LID No. 178/16 Page No.34 /75
partners in 2004. He has denied that he has made a wrong claim
that he was employed with the management from Aug. 1998, as
Cutting Master.
50. He has further deposed that for the first time, he raised
the demand of ESI, Bonus, Govt. leaves and payslips etc.
mentioned in para no. 2 of his affidavit in 2005. He has further
deposed that he was not the only employee employed with the
management . He has voluntarily deposed that there were about
50 employees. He has deposed that he raised the above
demands for 10-12 times from 2005. He has further deposed
that this demand was raised orally. He has further deposed that
he does not know the rate of contribution of employee share of
ESI and EPF nor he knew the rate of contribution of employer
share of ESI and EPF. He has further deposed that he was not
made member of ESI scheme even from May 2013. He has
further deposed that he has produced document Ex. WW1/1. He
has further deposed that this document Ex. WW1/1 relates to
ESI, which pertains to him. He has further deposed that he has
got written in para no. 2 of his statement of claim. He has
further deposed that his ESI contribution as employee share was
deducted only for 5-6 months by the employer. He has further
LID No. 178/16 Page No.35 /75
deposed that his ESI contribution deducted from his salary was
Rs. 300/- approximately. He has admitted that an amount of Rs.
228/- was deducted as ESI employee share from his salary for
the month of October, 2013 and he was paid vide cheque Rs.
12,772/- as salary appearing at point Z11 of Ex. WW1/22 (page-
9). He has further deposed that the document Ex. WW1/1 was
given to him by the management. He has further deposed that
he visited ESI office at Rajendra Place for ascertaining as to
whether his ESI deducted amount was deposited or not. He has
further deposed that he does not remember the date, month and
year of said visit. He has further deposed that he was not issued
any visiting slip in the ESI office. He has further deposed that
he visited the official of the ESIC at First Floor of the building.
He has further deposed that he does not know the name of the
said building . He voluntarily deposed that it was in Rajendra
Place. He has denied that no office of the ESIC had been or
has been situated at first floor in any building in Rajendra Place.
He has further deposed that he does not know the name of the
official, whom he met. He has further deposed that he had
shown the document Ex. WW1/1 to the said official. He has
further deposed that he visited the above said ESIC office after
one week of getting Ex. WW1/1. He has further deposed that
LID No. 178/16 Page No.36 /75
his wife was with him at that time. He has further deposed that
he did not visit anywhere else, except at Rajendra Place. He has
further deposed that no written document was given by him to
the official to whom, he had shown Ex. WW1/1. He has further
deposed that he did not make any written complaint against the
management regarding not depositing ESI contribution. He has
voluntarily deposed that he had visited the dispensary of
Karampura along with Ex. WW1/1 in view of ill health of his
son, but, he was not given treatment on account of non deposit
of ESI contribution. He has further deposed that he had perhaps
so visited on 17-18 May, 2013. He has further deposed that he
was having with him at that time Ex. WW1/1.
51. When, this witness was asked to state as to which official
of the ESIC had met him at the dispensary in Karampura, to
which he has replied that he does not know that much, but,
person at the dispensary had told him that Ex. WW1/1 was not
activated.
52. He has further deposed that he did not make any written
complaint regarding non-giving of treatment to his son by the
dispensary at Karampura, despite of having Ex. WW1/1. He
LID No. 178/16 Page No.37 /75
voluntarily deposed that he had told about the same to the
management/Bhai Sahab. He has further deposed that he does
not have any documentary evidence that his son was ill on dated
17-18 May 2013. He has further deposed that he has never
visited subsequent to 17-18 May 2013 any ESI office or official
to ascertain as to whether his ESI contribution has been
deposited by the management. He has further deposed that he
got the salary for the month of May, 2013 on any day 7-10 June
2013.
53. When, this witness was asked to state as to when, the
management was supposed to deduct and deposit the ESI
contribution for the month of May, 2013, to which, he had
replied that the deduction was started w.e.f. March 2013. the
deduction for the month of May, 2013 was made while making
payment of salary through cheque on any date between 7th to
10th June 2013.
54. He has further deposed that he does not know as to within
how many days after making deduction from the salary towards
ESI contribution, management is supposed to deposit the same
with ESIC. He has further deposed that he does not know that if
LID No. 178/16 Page No.38 /75
management makes deductions on 7th day of the month, same is
to be deposited by the management by the 21 st day of the said
month. He has also deposed that the management never made
any deduction from his salary except towards ESI contributions.
He has further deposed that the contents, which he was made to
write forcibly as resignation were same/similar as contained in
document Mark A. He has further deposed that he does not
know as to upto what amount of salary of an employee, The
Payment of the Bonus Act, 1965 was attracted upto December
2013. He has further deposed that he does not know that The
Payment of Bonus Act, 1965 was not applicable upto
December, 2013 to a person getting salaray of more than Rs.
10,000/-.
55. He has further deposed that he does not know as to when
the management received summons of this case for the first
appearance. He has admitted that the address namely 53/4/1,
Second Floor, Rama Road Industrial Area, New Delhi -15 is not
situated on the main Road, but, it is situated in a gali. He has
admitted that gali has a closing end after 3 factories, after the
factory of the management. He has further deposed that upto
February, 2014, he was having "Tanavpurna" relations with the
LID No. 178/16 Page No.39 /75
management. He has further deposed that the management is
having factory at first, second and third floor. He has further
deposed that the management has no factory at ground floor. He
has further deposed that at ground floor, there is factory of
another person. He has further deposed that the management did
not write any letter to him after 14.12.2013 to call him to meet
it.
56. When, this witness was asked to state that whether after
13.12.2013 he was made to sign any document by the
management, if so, on what date and what documents he was
made to sign or not, to which, he had replied that on
20.01.2014, he was going towards the factory of the
management and that on the day, Mr. Sanjay Luthra called him
and asked him to withdraw the case and thereafter he would be
put him on job. He has further deposed that Mr. Sanjay Luthra
further told him that he needed to put sign on 4 papers for
completing the formalities, so, that, he could be put on job. He
has further deposed that he signed on 4 papers and he was told
to come on job from the next day. He has further deposed that
when, on the next date, he visited the management for job, the
guard did not permit him to go to the factory of the management
that there was no vacancy. He has further deposed that he
LID No. 178/16 Page No.40 /75
visited factory of the management on 3 dates and the guard had
told him to move away therefrom, otherwise, Bhai Sahab would
come and would "Dhakke Maar Ke Bahar Nikal Denge". Then,
he moved away therefrom.
57. He has further deposed that the management has not
placed on judicial record above said 4 documents, which were
(allegedly) got signed from him on dated 20.01.2014 He has
further deposed that he did not write any letter to Mr. Sanjay
Luthra narrating the incident (allegedly) taken place on dated
20.01.2014. He has further deposed that he has mentioned the
alleged incident dated 20.01.2014 in the records available on
judicial record mentioning the name of Sanjay Luthra and about
his act stated above.
58. When, this witness was asked to identify the document
on judicial record, where it is so written, to which, he had
replied that he cannot find out the same.
59. The ld. Predecessor of this court had observed that the
witness outrightly replied as above without even trying to see
the judicial record.
LID No. 178/16 Page No.41 /75
60. He has further deposed that the residential address given
by him in his affidavit bearing no. T-2259, Gali no.3, Near Shiv
Mandir, Baljeet Nagar, Shadipur, New Delhi consists of only
one room. He has further deposed that this one room is a
tenanted premises at month rent of Rs. 2000/-.
61. He has further deposed that his family consisted of 5
persons (including himself) resides therein. He has further
deposed that his monthly expenses are about Rs. 8000/-. He has
further deposed that he has two sons and one daughter. He has
further deposed that the daughter is the youngest. He has
further deposed that the photograph of two sons along with him
and his wife is affixed on Ex. WW1/1 at point A. He has further
deposed that both of his sons are school going in a govt. school.
He has further deposed that nothing is spent by him on their
education. He has further deposed that the management,
wherein, he was working as a Cutting Master is a garment
factory. He has admitted that in Delhi, there are garment
factories, which are thousands in number. He has admitted that
in all the thousands of garment factories, there is need for
Cutting Master. He has admitted that such factories display
LID No. 178/16 Page No.42 /75
vacancies on the boards put outside the factories. He has
admitted that he has not applied in writing for jobs in other
garment factories. He voluntarily deposed that he had visited for
job, but, was not given the job. He has further deposed that he
cannot tell the names of the factories, where he went for job. He
has further deposed that he had visited the factories for job in
the year 2014 only and did not search for job in the year 2015,
2016 and 2017.
62. He has denied that he has given full and final receipt
Mark A at the time of leaving of employment of his own sweet
will. He has further deposed that he has filed in his evidence all
the documents, complaints, claims lodged by him against the
management before the authorities of Labour Department, this
Labour Court and authorities of ESI and EPF department etc.
He has further deposed that he did not make any written
complaint with the PF department against management for not
depositing EPF contribution relating to his employment. He has
denied that the management had not employed 50 workmen, as
alleged in his complaint and demand notice. He has denied that
he has not rendered service to the management from 1998 as
Cutting Master. He has denied that he has filed false claim and
LID No. 178/16 Page No.43 /75
false affidavit. He has further denied that he has falsely stated
in his evidence subsequent to his alleged termination that the
management had called him in it's establishment. He has further
denied that he has falsely stated that he suffered injury during
the employment of the management. He has denied that he is
gainfully employed since leaving of employment of the
management. He has further denied that the management never
issued document Ex. WW1/0 to Ex. WW1/20 to him in any
format including alleged order. He has further denied that he
has fabricated these documents.
63. The partner of the management Sh. Sanjay Luthra has
been examined as MW1, vide his affidavit Ex. MW1/A, who
has testified that M/s A.R. International is a partnership firm
and he and his brother Ram Avtar Luthra are the partners
therein. He has also deposed that this firm was registered with
the Registrar of Firm. The registration of the firm shows the
date of commencement of the partnership as 01.04.1996. He
has also deposed that this firm was covered under Excise Act by
the Competent Authority of the Central Excise w.e.f.
12.05.2003 vide registration no. AAGFA7167BXM001. The
above firm at the time of it's coverage under Excise Act, was
LID No. 178/16 Page No.44 /75
existing in rented premises bearing No.2579/1, second floor
Mandir Wali Gali, Shadipur Patel Nagar, New Delhi-110008, as,
it was shifted from A6/69, Moti Nagar, New Delhi-110015 to
the above rented premises in the first quarter of 2003. He has
further testified that the firm was again shifted to premises
bearing No. XVII/2369/D-5, first floor Shadipur, Khampur
w.e.f. 01.01.2004, as, the two partners i.e. this witness and his
brother purchased these premises in December, 2003, vide sale
deed dated 10.12.2003. Photocopy of the sale deed is placed on
the record. ESI Scheme was applied to this firm by ESI
Corporation from 17.05.2013 vide order dated 03.06.2013 and
EPF Scheme was applied to his firm by the EPFO w.e.f.
20.05.2013 vide order duly signed on 30.05.2013.
64. He has further testified that the partners of this firm had
purchased the present premises situate at first floor and second
floor part of original plot No. 53 Rama road, Najafgarh road
Industrial Area and the said part of the plot is described as
53A/4/1 for proper identification of the part occupied/purchased
by the two partners. He has also testified that the partners of the
firm purchased floor wise the two floors vide separate sale
deeds of the same date i.e. 01.09.2012 and he had produced
LID No. 178/16 Page No.45 /75
photocopies of both the sale deeds. He has also testified that
the partners shifted the firm to the Rama Road address from
August 2013.
65. He has also testified that that no PF was deducted or
required to be deducted from the monthly wages of any
employee during the period of May, 2013 to August, 2014, as,
the monthly wages of ever employee from May, 2013 to
August, 2014 was more than Rs. 6500/- per month, so, none of
employees was eligible for membership under EPF scheme
from May, 2013 to August, 2014, as their rate of monthly wages
was more than Rs. 6500/- and further deposed that no ESI was
deducted or required to be deducted prior to above date of
coverage under ESI Scheme. He has also testified that the
claimant Mohd Akhtar Ansari was not eligible for his coverage
under EPF Scheme during his entire service period and also
testified that no deduction from the wages of the claimant
Mohd. Akhtar Ansari torwards Employees Provident Fund was
required to be made nor any deduction from his wages was ever
made by the management in the name of Provident Fund
contribution. He has also testified that the ESI Contribution
deducted from the monthly wages relating to eligible employees
LID No. 178/16 Page No.46 /75
including claimant Mohd. Akhtar Ansari in respect of ESI
Scheme from May, 2013 and the same was deposited with ESI
corporation. Photocopies of the challans showing the deposit of
ESI Contributions for the period of May, 2013 onward are
placed on record. This witness has also deposed that monthly
salary used to be paid to the claimant Mohd. Akhtar Ansari,
vide Cheque, during his period of employment starting from
January, 2010 and photocopies of the monthly salary sheet of
the employees of the firm from August, 2013 to Dec. 2013 are
also placed on record. He has also deposed that due to
inadvertence and clerical error old address of Shadipur,
Khampur remained in the software generating payroll for the
above period of 2013 and photocopy of the attendance register
for the period August, 2013 to Dec. 2013 is also placed on
record.
66. He has also testified that on 14.12.2013, at the start of
duty time, the claimant Mohd. Akhtar Ansari came to this
witness and stated that he would not work any more with the
firm and requested for the payment of his dues and this witness
has acceded to his request and his earned wages till 13.12.2013
were quantified. In accordance with the said calculation this
LID No. 178/16 Page No.47 /75
witness had prepared the payment cheque in the name of the
claimant. The cheque was received by the claimant and he was
asked to mention in his own handwriting the aforesaid facts.
The claimant of his own and of his free will wrote the said
document in his presence and gave in writing to him. This
witness has also testified that he had asked the claimant to
mention the amount received by him and then the claimant
wrote in his own writing the said document. He has further
testified that the said statement of leaving of employment by the
claimant was made in the office of this witness. He has also
testified that the claimant received the Cheque from him and the
claimant himself left employment of his own accord and his
claims are afterthought and false and the claimant never visited
the establishment of this witness after leaving employment.
Nor he was required to visit.
67. He has relied upon the copy of partnership deed Ex.MW
1/1, copy of registration certificate Form B Ex.MW1/2 , copy
of Central Excise Registration Certificate marked as Mark R1,
photocopy of saledeed dt. 10.12.2003 marked as Mark R2,
copy of registration order of the management under ESI Act
LID No. 178/16 Page No.48 /75
Ex.MW1/3 (OSR), copy of registration order of the
management under EPF Act Ex.MW1/4 (OSR), copy of sale
deed dt.14.09.2012 Mark R3, copy of saledeed dt.14.09.2012
Mark R4, copy of ESI challans for the period commencing
from May, 2013 up to December, 2013 Ex.MW1/5 (Colly 6
pages), copy of salary sheet for the period August, 2013 to
December, 2013 Ex.MW1/6 (Colly 40 pages), copy of
attendance register from August, 2013 to December, 2013
Ex.MW1/7 (Colly 15 pages), copy of register under Regulation
32 Act for the period April, 2013 to March, 2014 Ex.MW1/8
(Colly 9 pages) and original declaration of the workman dt.
14.12.2013 Ex.MW1/9.
68. He was cross examined by ld. Authorized Representative
for the claimant and during his cross examination has denied
that the claimant was working in the management since 1998,
as a cutting master. He has admitted that last drawn salary of
claimant was Rs. 13,000/- per month. He has denied that the
salary of the claimant was deposited in his bank account. He
has voluntarily deposed that the salary was paid by the
management through cheque to the claimant.
LID No. 178/16 Page No.49 /75
69. He has denied that Ex. WW-1/10 to Ex. WW-1/18 were
prepared by the management. He has denied that document
Ex. WW-1/10, Ex. WW-1/11, Ex. WW-1/13, Ex. WW-1/14 and
Ex. WW-1/17 bear his signatures.
70. He has deposed that the appointment letter, attendance
card and the pay slips were not given to the claimant. He has
deposed that the attendance of the claimant was marked in the
attendance register of the management.
71. He has admitted that the facility of ESI was provided to
the claimant since May 2013. He has admitted that the
claimant was working in the management since the year 2010.
He has admitted that the claimant was not given bonus by the
management. He has voluntarily deposed that the rate of
monthly wages of the claimant was Rs. 13,000/- and he was not
an employee under payment of Bonus Act. He has denied that
the claimant was entitled to get bonus under the Bonus Act. He
has denied that the amount of ESI and PF was deducted by the
management from the salary of the claimant, since the day, he
joined the management.
LID No. 178/16 Page No.50 /75
72. He has admitted that the facility of PF was not provided
to the claimant by the management. He voluntarily deposed
that the rate of monthly wages of the claimant was more than
Rs. 6500/- per month, so, he was not coverable employee under
EPF and Miscellaneous Provisions Act.
73. He has denied that date of appointment of the claimant
mentioned on his ESI card was wrong. He has denied that the
claimant was opposing to the wrong date of appointment
mentioned by the management in his ESI Card and he was also
demanding for depositing the amount of PF and ESI deducted
from his salary from the very beginning of his service or that for
the same reason, the management got annoyed or that the
claimant was forced to write resignation letter or that in such
manner the services of the workman have been terminated
illegally by the management.
74. He has admitted that claimant had filed a complaint in
the Labour office regarding his termination of services. He has
denied that Labour Inspector had asked him to reinstate the
claimant in the management. He has deposed that he does not
LID No. 178/16 Page No.51 /75
remember, as to what was said by the Labour Inspector.
75. He has denied that the claimant had sent him any
demand notice for reinstating him in the management. He has
denied that the claimant had filed case in the Labour Office
against the management for reinstating him in the management.
76. He has denied that on dated 20.08.2014, the claimant was
passing from the front side of the factory of the management or
that he had called him and forced him to write resignation letter.
He has denied that Ex. MW-1/9 was not written by the claimant.
He has denied that he has deliberately withheld the said
resignation letter or that he has filed on record the forged and
fabricated resignation letter of the claimant or that the same is
not in the handwriting of the claimant.
77. He has denied that the management had terminated the
services of the claimant. He has voluntarily deposed that the
claimant had voluntarily left the job in the management. He has
denied that no legal dues were paid to the claimant by the
management. He voluntarily deposed that the due salary of the
claimant was paid to him at the time of leaving the job in the
LID No. 178/16 Page No.52 /75
management. He has admitted that the management did not
write any letter to the claimant to call him to do work in the
management. He has deposed that the management is not ready
to keep claimant in the management. He has denied that the
services of the claimant have been illegally terminated by the
management or that he has deposed falsely.
78. The handwriting expert Sh. V.C. Mishra has been
examined as MW2. He has deposed that he is the Handwriting
Expert having 32 years experience and he has submitted reports
in various court of India and abroad. In this matter, he has
scientifically examined disputed signatures and handwriting of
Sh. Mohammad Akhtar Ansari, appearing on receipt dated
14.12.2013 and Marked as D-1, D-2 and D-3 (in his report) and
has compared these handwriting and signature with 6 admitted
signatures (A1 to A6 in my report) of Mr. Akhtar Ansari and
with 7 specimen handwritings (S1 to S7 in my report) of Sh.
Akhtar Ansari. After a detailed comparison, his opinion is that
the disputed handwriting Mark as D1 and disputed signatures
Marked as D2 and D3 have been written and signed by the same
person, who has written 7 specimen handwriting and 6 admitted
signatures as stated above. He has further deposed that the
LID No. 178/16 Page No.53 /75
reasons are given in his opinion, which is signed by him on
each page of the report and his report is Ex.MW2/A and CD of
photographs filed with the report is Ex.MW2/B.
79. He was cross examined by ld. Authorized Representative
of the claimant. During his cross examination, he has admitted
it to be correct that he has not filed any documentary proof to
show that he is handwriting expert. He has deposed that he does
not know whether any of the Hon'ble High Court or Hon'ble
Supreme court has recognized the book as mentioned at page
No.2 of his report. He has denied that he is not any degree
holder or diploma holder in forensic. He has admitted that he is
engaged by the management privately after paying his fee for
examining the signatures. He has denied the handwriting as
mentioned in D1 does not match with S1 to S7. He has denied
that the signatures as mentioned in A1 to A6 do not match with
D2. He has denied that he has given his report Ex.MW2/A
against the workman after taking money from the management.
He has denied that he is not having any degree of forensic
expert or he is not entitled to give any such report of
handwriting or that he has deposed falsely.
LID No. 178/16 Page No.54 /75
80. The claimant has claimed in his statement of claim that
he had worked in the management as Cutting Master since
August 1998 and on dated 13.12.20213 his services were
illegally terminated by the management. The management has
taken the plea in it's written statement that the claimant had
resigned from the job on dated 14.12.2013 and the claimant had
also taken the amount of Rs. 5633/- being Salary for the period
w.e.f. 01.12.2013 to 13.12.2013. The management has also
denied to have terminated the services of the claimant.
81. The claimant has examined himself as WW1, vide his
affidavit Ex. WW1/A, wherein, he has reiterated that he was
serving in the management since August 1998.
82. The perusal of the record reveals that the claimant has
relied upon the photocopy of ESI card Ex. WW1/1 and the
perusal thereof reveals that the date of appointment of the
claimant is mentioned therein as 17.05.2013. The claimant has
relied upon the order form dated 22.04.2009 Ex. WW1/10,
order form dated 22.04.2009 Ex. WW1/11, order form dated
23.04.2009 Ex. WW1/12, order form dated 23.04.2009 Ex.
WW1/13, order form dated 24.04.2009 Ex. WW1/14, order
LID No. 178/16 Page No.55 /75
form dated 24.04.2001 Ex. WW1/15, order form dated
26.04.2009 Ex. WW1/16, Challan dated 09.08.2000 Ex.
WW1/17, order form dated 25.01.2002 Ex. WW1/18, Delivery
challan dated 17.10.2013 Ex. WW1/19, delivery challan dated
17.10.2013 Ex. WW1/20, photocopy of passbook of the
claimant Ex. WW1/22.
83. The ld. Authorized Representative for the claimant has
submitted that since these order forms and delivery challan are
prior to the alleged date of appointment dated 17.05.2013, as
mentioned in the ESI Card, so, the claimant has proved that he
was serving in the management even prior to the date of
appointment, as mentioned in the ESI card Ex. WW1/1, but, the
perusal of the order form Ex. WW1/15 and Ex. WW1/18 reveal
that both are similar in verbatims, even the order form number
mentioned in both of these order forms is same. Since the
claimant has claimed that he was working as Cutting Master, so,
how these order forms Ex. WW1/10 to Ex. WW1/16 and Ex.
WW1/18 and challan Ex. WW1/17 and photocopies of delivery
challan Ex. WW1/19 and Ex. WW1/20 go to prove the
employment of the claimant in the management on the dates, as
mentioned in the above said order forms, challan and delivery
LID No. 178/16 Page No.56 /75
challan, is not explained by the claimant.
84. The perusal of these order forms, as mentioned
hereinabove reveals that the address of the management is
mentioned thereon as XVII 2369/D-5, 1st Floor, Mandirwali
Gali, Shadipur, Khampur, New Delhi and the perusal of the
copy of the sale deed Mark R-2 placed on record by the
management reveals that the abovesaid property was purchased
by the management on dated 10.12.2003 and the management
has claimed that on dated 01.01.2004, it had shifted it's business
on the above said address and the testimony of the MW1 also
goes to prove that the management had shifted its establishment
in the abovesaid premises on 01.01.2004. MW1 has not been
cross examined on this point and thus, testimony of MW1
remained unrebutted, uncontroverted, unchallenged and
unimpeached and thus, from such testimony of MW1, it is
proved that the management had shifted to the abovesaid
premises on dated 01.01.2004. These order forms are bearing
the dates, prior to the date of execution of the Sale Deed Mark
R-2. But, the claimant has failed to bring on record any cogent
documentary proof to show that the management was running
it's business even prior to the purchase of said premises. The
LID No. 178/16 Page No.57 /75
claimant has claimed that he was a Cutting Master, but, how
these order forms prove the employment of the claimant in the
management, is not explained by the claimant. These order
forms also appear to be suspicious documents and possibility of
manipulation thereof cannot be ruled out. So, same order forms
do not inspire any confidence.
85. The claimant has claimed that he was serving in the
management since August, 1998, but, he has failed to bring on
record any documentary proof that he was serving in the
management since August 1998, so, this court is inclined to
hold that the claimant has failed to prove that he had served in
the management since August, 1998. It is worthwhile to
mention herein that on dated 14.01.2015, the partner of the
management namely Sh. Sanjay Luthra had appeared in the
court and he had given the statement in the court that the
claimant was serving in the management since the year 2010
and it is also pertinent to mention herein that the ld. Authorized
Representative for the claimant had given the suggestion to the
MW1, during his cross examination that this claimant was
working in the management since the year 2010 and MW1 had
admitted it to be correct. Therefore, in view of giving of such
LID No. 178/16 Page No.58 /75
suggestion also, the employment of the claimant in the
management since the year 2010 has become an undisputed
fact.
86. The claimant has claimed that on dated 13.12.2013, he
was made to write resignation letter forcibly and the claimant
has also claimed in his statement of claim that on dated
13.12.2013, he was not paid any due. The claimant was cross
examined by the ld. Authorized Representative of the
management and perusal of the cross examination of the
claimant reveals that even during his cross examination,
initially, this claimant has denied to have received the amount
of Rs. 5633/- from the management. He has also denied to have
deposited any cheque of Rs. 5633/- in his saving account. He
has also denied that he was paid Rs. 5633/- on dated
14.12.2013,but, on seeing his passbook Ex. WW1/22, the
claimant has admitted it to be correct that his passbook Ex.
WW1/22 contains the entry of credit of Rs. 5633/- on dated
14.12.2013 at point A thereof. He has also admitted in his cross
examination that he was paid salaries by the management vide
account payee cheques and the photocopy of passbook of the
claimant Ex. WW1/22 reveals that the claimant had received the
LID No. 178/16 Page No.59 /75
salaries through cheque since 2011 till 2013 and credit entry of
Rs. 5633/- dated 14.12.2013 is also seen therein.
87. The claimant has claimed that on dated 13.12.2013,
he was forced to write resignation letter. But, perusal of
the statement of claim filed in the court does not reveal as
to which of the person in the management had forced to the
claimant to write the same. The perusal of the cross
examination of the claimant reveals that on seeing the original
document mark A (also Ex. MW1/9) regarding the leaving of
employment, the claimant had denied his handwriting or
signatures thereon.
88. Since, the claimant has denied his handwriting and
signatures on the said documents mark A (and also Ex.
MW1/9), so, on moving of an application by the management,
the management was allowed to take the opinion of the Forensic
Expert regarding Mark A and Dr. V.C. Mishra has examined the
disputed handwriting and signatures and admitted handwriting
and signatures of the claimant and he had given his opinion in
his report Ex.MW2/A that the disputed handwriting mark D-1,
disputed signatures Mark D-2 and D-3 have been written and
LID No. 178/16 Page No.60 /75
signed by the same person, who has written seven specimen
handwritings and admitted signatures mark A-1 to A-6.
89. The ld. Authorized Representative for the claimant has
submitted that since this handwriting Expert Sh. V. C. Mishra
has been examined as MW2 and this MW2 in his cross
examination has admitted that he has not placed on record any
documentary proof to prove that he is handwriting expert. He
has also submitted that this MW2 is a private person and he had
given the report against the claimant after taking money from
the management.
90. The perusal of the report Ex MW2/A of MW2 Dr. V.C.
Mishra reveals that he had prepared his report on his letter head,
wherein, he has mentioned his name as Dr. V.C. Mishra and he
has also mentioned his degree as Ph.D on his letterhead. The
ld. Authorized Representative of the claimant had seen the
report Ex. MW2/A. If the claimant or his Authorized
Representative were having any doubt regarding the educational
qualification of MW2, they could ask the questions to this
MW2 regarding his degree, as mentioned on his letterhead, but,
the ld. Authorized Representative for the claimant did not ask
LID No. 178/16 Page No.61 /75
any question to MW2 regarding his degree of Ph.D.
91. The perusal of the record reveals that this handwriting
expert, who has been examined as MW2 has given numbers of
reasons for his opinion regarding the signatures, and
handwriting of the claimant on mark A ( and MW1/9) and then
he had come to the conclusion that the handwriting and
disputed signature are of the same person. Undoubtedly, MW2
was privately engaged by the management, so, even if the
management has paid the fees of this handwriting expert, even
then, the report of this MW2 cannot be discarded on this
ground, which is based on the well reasonings and even
otherwise, the testimony of this MW2 remained unimpeached,
as, the reasonings given in his report remained unchallenged.
So, I have no ground to disbelieve the testimony of MW2 and
his report Ex. MW2/A.
92. The perusal of the testimony of this claimant reveals that
during his cross examination, he has denied that he has written
or signed mark A. But, at the same time, it is also pertinent to
mention here that this claimant during his cross examination has
also deposed that the contents, which he was made to write
LID No. 178/16 Page No.62 /75
forcibly, as resignation were same/similar, as contained, in
document mark A.
93. The report of handwriting expert has proved that the hand
writing and signatures of the claimant on mark A (which is also
Ex. MW1/9) and since the claimant has claimed that he was
made to write resignation forcibly, so, he was supposed to level
such allegation against categorical person, who had forced him
to write such resignation, but, the claimant has nowhere levelled
such allegation against any specific person of the management
in his statement of claim. The claimant has nowhere alleged in
his statement of claim that any weapon or threat was used or
that mark A was written on the dictation of some other person.
Since, the claimant has alleged that he was forced to write
resignation, so, it was obligatory on the part of the claimant to
prove that specific kind of force was used by specific person for
making him to write resignation mark A (which is also Ex
MW1/9). But, the claimant has made bald allegation in his
statement of claim. The claimant has filed a copy of complaint
dated 21.08.2014 Ex. WW1/6 which is addressed to DCP West,
but, the claimant has failed to explain any reason in his
testimony that why did he not lodge any complaint for forcing
LID No. 178/16 Page No.63 /75
him to write resignation, soon after the incident dated
13.12.2013. Since, this complaint was filed on 21.08.2014, so,
the possibility of an afterthought and colourful version therein
cannot be ruled out. Even otherwise, from the report of the
handwriting expert,who has been examined as MW2, it is
proved that the claimant had written and signed this document
mark A (and also Ex. MW1/9).
94. The perusal of the statement of claim of the claimant
reveals that the claimant has alleged therein that on dated
13.12.2013, he was made to write resignation letter forcibly. He
has also alleged that since August, 1998, the amount in the
name of ESI and PF was deducted from his salary by the
management. The claimant has failed to bring on record any
cogent documentary proof that he had served in the
management since August, 1998 or that any amount in the name
of ESI and PF was deducted from his salary by the management
since August 1998. It is worthwhile to mention here that at the
time of cross examination, this claimant had deposed that the
management had not made any deduction from salary except
towards ESI contribution. Therefore, this court is inclined to
hold that this claimant has deliberately levelled false allegation
LID No. 178/16 Page No.64 /75
of deductions of amount in the name of ESI and PF from his
salary by the management, so, issue no.5 is also decided against
the claimant.
95. Perusal of the record reveals that the claimant has alleged
that the management had not made payment of any of his dues
and even at the time of his cross examination, he has denied to
have received Rs. 5633/- as mentioned in mark A (also in
Ex.MW1/9). But when, he was shown the photocopy of his
passbook Ex. WW1/22, then, on seeing the same, he had
admitted that his passbook contains the entry of credit of Rs.
5633/- on dated 14.12.2013. The perusal of the document
Ex.MW1/9 (also Mark A) reveals that this claimant had written
therein that he was leaving the job in the management
voluntarily and he had fully and finally settled the amount and
nothing remained due. He has also mentioned therein that he
had also taken the wages, which is to the tune of Rs. 5633/- for
13 days and cheque no. 141342 dated 14.12.2013 is also
mentioned thereon. No doubt that there is an overwriting in the
date mentioned thereon at one point. But, on the bottom of it,
where the cheque number is mentioned the date 14.12.2013 is
also written thereon. MW1 has testified in his affidavit Ex.
LID No. 178/16 Page No.65 /75
MW1/A that on dated 14.12.2013, the claimant Mohd. Akhtar
Ansari had come to him and stated that he would not work
anymore with the firm and requested to pay his dues and MW1
had accepted his request and his earned wages till 13.12.2013
were quantified and the cheque was received by the claimant.
The perusal of the cross examination of the MW1 reveals that
the such testimony of this witness is neither rebutted nor
impeached. The Ld. Authorized Representative for the claimant
did not give any suggestion to this witness that this claimant did
not go to the management on dated 14.12.2013 and in view of
such unrebutted and unimpeached testimony of MW1 and since
the testimony of this witness is also corroborated with the credit
entry in the passbook of the claimant Ex.WW1/22 and as the
perusal of the photocopy of passbook of this claimant
Ex.WW1/22 reveals that on dated 14.12.2013 an amount for Rs.
5633/- was credited in the account of the claimant vide same
cheque, number of which is also written in Mark A (Ex.MW1/9)
The claimant has nowhere stated in his statement of claim that
he had filed any complaint with the police regarding the use of
any force for writing resignation. Had any force used against
this claimant, he could report to the police soon thereafter. But.
The claimant has not lodged any complaint to the police and
LID No. 178/16 Page No.66 /75
filed the complaint with the police on 21.08.2014, copy whereof
is Ex. WW1/6. But, in view of considerable delay in filing of
the same report, the same does not inspire any confidence and
even otherwise from the unrebutted and unimpeach testimony
of MW1, it is proved that the claimant had attended his duties
in the management till 13.12.2013 and dated 14.12.2013, he had
told to the MW1 that he was not desirous to do job in the
management and from the testimony of the MW1 and in view
of the admission made by the claimant in his cross examination
regarding the receiving of amount of Rs. 5633/- on dated
14.12.2013, it is proved that the claimant had received an
amount of Rs. 5633/- on dated 14.12.2013 being salary for the
period w.e.f. 01.12.2013 to 13.12.2013 and since it is proved on
the record that the claimant had worked in the management upto
13.12.2013 and on dated 14.12.2013 he had left the job of his
own and received wages upto 13.12.2013, therefore, after
resigning from the job on dated 14.12.2013, he was no more
workman within the meaning of Section 2(s) of the Industrial
Disputes Act, therefore, issue no.3 is also decided against the
claimant.
96. The claimant has claimed in his statement of claim and
LID No. 178/16 Page No.67 /75
in his affidavit Ex. WW1/A he had served in the management
since August 1998 and on dated 13.12.2013, his services were
illegally terminated by the management,but, the claimant has
failed to bring on record any cogent documentary evidence to
prove that he had served in the management since August, 1998
or that on dated 13.12.13 his services were illegally terminated
by the management.
97. The claimant has claimed that on dated 20.08.2014 at
4:00 PM, when he was passing from the front of the
establishment of the management, he was called upon and his
signatures were taken by the management on blank papers and
printed blank performas and other papers with affixed revenue
stamp thereon forcibly, but, the claimant has failed to bring on
record any cogent documentary evidence about the said incident
except the copy of complaint Ex. WW1/6 and since the
claimant has claimed that on dated 13.12.2013, he was made to
write resignation forcibly, then how this claimant could go
again to the management after the alleged incident dated
13.12.2013, is not explained by the claimant. Had the
management forced to the claimant to write resignation letter on
dated 13.12.2013, it was not probable for the claimant to go
LID No. 178/16 Page No.68 /75
again to the management on dated 20.08.2014. It is pertinent to
mention here that at the time of cross examination of the
claimant, he has deposed that on dated 20.01.2014, he was
called by Sh. Sanjay Luthra, who had asked him to sign on four
papers, so that, this claimant could be put on job again. He had
signed four papers. Thus, the testimony of the claimant is
found self contradictory and he failed to support his own case,
set up in his statement of claim. Therefore, on the yardstick of
preponderance of probability, this court is inclined to hold that
in view of self-contradictory and inconsistent testimony of the
claimant, the claimant has failed to prove on record that any
such incident on dated 20.08.2014 had taken place, therefore,
the issue no. 2 is decided against the claimant.
98. Since, the management has claimed that this claimant had
worked upto dated 13.12.2013 and on dated 14.12.2013, he had
left the job and received his wages for the work done by him
upto 13.12.2013 and from the photocopy of the passbook of the
claimant Ex. WW1/22, it is proved that the claimant had
received an amount of Rs. 5633/- from the management vide
cheque and credit entry of dated 14.12.2013 is also seen in the
passbook of the claimant, Thus, the plea taken by the
LID No. 178/16 Page No.69 /75
management regarding the payment of Rs. 5633/- is
corroborated and fortified with the admission made by the
claimant during his cross examination and also from the credit
entry, made in the passbook of the claimant, which is Ex.
WW1/22.
99. The claimant has claimed that he had sent the demand
notice Ex. WW1/3 dated 07.03.2014 to the management. The
perusal of the failure report of conciliation officer reveals that
on dated 07.03.2014, the claimant had filed the claim before the
conciliation officer. Since, the perusal of the demand notice
dated 07.03.2014 Ex. WW1/3 reveals that the claimant had
demanded for compliance of his demands made therein within
seven days of receiving of the said demand notice, so, the
claimant should have waited at least till the expiry of 7 th day,
after service of the said demand notice to the management,but,
the claimant had chosen to file the claim before the conciliation
officer on the same day i.e. on dated 07.03.2014 and it was also
duty of the conciliation officer to ensure that the existence of
Industrial Disputes, as, mandated by Section 12 of the Industrial
Disputes Act. But, as the claimant did not chose to wait for
seven days from the date of receiving of the said demand notice
LID No. 178/16 Page No.70 /75
by the management, so, this court is inclined to hold that the
claim before the Conciliation Officer, filed on dated 07.03.2014
was not proper. Therefore, issue no. 4 is decided in favour of
the management.
100. Since, the claimant has claimed that the management
used to deduct the amounts from his salary in the name of PF
and ESI since August, 1998, but, the claimant has failed to
bring on record any cogent documentary evidence to prove that
the claimant was working in the management since August,
1998 or that any amount in the name of ESI and PF was
deducted from his salary by the management since August
1998. Since, the perusal of the cross examination of the
claimant reveals that at the time of his cross examination, he has
admitted that the management had never made any deduction
from his salary, except towards ESI contribution. In view of the
above discussion, this court is inclined to hold that the claimant
has levelled false allegations against the management regarding
the deductions of amount in the name of PF and ESI from his
salary since August 1998.
101. In UCO Bank v. Presiding Officer- 2000 I CLR 105 it
LID No. 178/16 Page No.71 /75
was held that: Burden of proving a fact rests on the party who
substantially asserts the affirmative of the issue and not upon
the party who denies it, for, a negative is usually incapable of
proof.
102. Section 2(oo) of the Industrial Disputes Act 1947 reads
as under:
"Retrenchment" means the termination by the
employer of the service of a workman for any reason
whatsover, otherwise than as a punishment inflicted
by way of disciplinary action but does not include-
(a) Voluntary retirement of the workman; or
(b) retirement of a workman on reaching the age of
superannuation if the cotract of employment between
the employer and the workman concerned contains a
stipulation in that behalf; or
(b) termination of the service of the workman as a
result of the non-renewal of the contract of
employment between the employer and the workman
concerned on its expiry or of such contract being
terminated under a stipulation in that behalf
contained therein; or
(c) termination of the service of a workman on the
ground of continued ill-health.
103. Thus, from the perusal of the definition of retrenchment
as mentioned herein above, it is clear that the retrenchment does
not include resignation. The claimant has failed to prove that he
was serving in the management since August, 1998 or that on
dated 13.12.2013, his services were illegally and unjustifiably
terminated by the management.
104. From the unrebutted and unimpeached testimony of
LID No. 178/16 Page No.72 /75
MW1 and report of MW2 Ex. MW2/A, it is proved that the
claimant had gone to the management on dated 14.12.2013 and
told to the partner of the management, who has been examined
as MW1 that he was no more desirous to do the job in the
management and demanded for his dues and in view of the
same, the claimant was paid a cheque of Rs. 5633/- and the
claimant had written MW1/9 (also mark A), wherein, he had
categorically stated that he had left the job in the management
with his own will and he had also taken his wages of Rs. 5633/-
for 13 days and from the cross examination of the claimant and
also from the credit entry of Rs. 5633/- dated 14.12.2013, vide
cheque in the passbook of the claimant Ex. WW1/22, it is
proved that the claimant had received the salary for the period
w.e.f. 01.12.2013 to 13.12.2013 after resigning from the job.
105. Since, from the report Ex. MW2/A, it is proved that the
claimant had written the said resignation declaration vide mark
A (which is also Ex. MW1/9 ) on dated 14.12.2013.
106. In Hira Mills, Ujjain vs Babu and Otheers-1998 (79)-
FLR-574 it was held that :
"It is established principle of law that burden lies on
the person who wants the document to be read
LID No. 178/16 Page No.73 /75
otherwise than it purports to be. Document Ex. D/6 is
unconditional. There is absolutely no mention that as
promised or assured by any officer, he tendered his
resignation. The burden was on respondent NO.1 to
who that he has signed the document involuntarily."
107. Since, this court has come to the conclusion that the document Ex. MW1/9 (also mark A) was written and signed by the claimant, so, the burden of proving was on the claimant to prove that this document Ex. MW1/9 be read otherwise, then, it proposed to be. Since, the claimant has failed to bring on record any cogent documentary evidence that any force was used by the management in writing of the same document, so, this court is inclined to hold that this claimant had voluntarily resigned from the job on dated 14.12.2013 by way of writing Ex. MW1/9 (and also mark A). So, in view of such resignation written by the claimant, it cannot be held that the services of the claimant were illegally and/or unjustifiably terminated by the management. The claimant has failed to prove on record that he had worked in the management as Cutting Master since August 1998 or his services were illegally terminated by the management on 13.12.2013, therefore, issue no.1 is decided against the claimant. In view of the above discussion, the claimant is not entitled to get any relief, as claimed by him in his statement of claim. Therefore, the statement of claim filed LID No. 178/16 Page No.74 /75 by the claimant is hereby dismissed, being devoid of merit.
108. 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 and judicial file be consigned to Record Room, as per rules after compliance of necessary legal formalities. Digitally signed by
PAWAN PAWAN KUMAR
KUMAR MATTO
Date: 2022.04.08
MATTO 16:50:25 +0530
Announced in the Open Court (PAWAN KUMAR MATTO) on 08.04.2022 Presiding Officer Labour Court -02 Rouse Avenue District Court, New Delhi-
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