Delhi District Court
Titled As Vijay Singh Negi vs . Sumo Chakraborty & Ors., Ex.Ww1/L on 30 November, 2012
IN THE COURT OF SH. CHANDRA GUPTA
PRESIDING OFFICER LABOUR COURTX
KARKARDOOMA COURTS, DELHI.
D.I.D. No. : 484/09
Date of Institution of the case : 20.03.2007
Date on which reserved for Award : 13.09.2012
Date on which Award is passed : 30.11.2012
Unique ID no. 02402C0229042007
Sh.Vijay Singh Negi, S/o Sh. Vishal Singh Negi,
R/o A120 Minto Road, New Delhi. .................Workman
Versus
(i) The management of
M/s York Hotel Connaught Place New Delhi through
Sh. Balbir Singh Partner/proprietor
(ii) Sh. Kuldip Singh, S/o Sh. Dorlav Singh,
Proprietor/partner M/s York Hotel,
Connaught Place, New Delhi.
(iii) Sh. Sumo Chakrabotry
Manager of M/s York Hotel,
Connaught Circus, New Delhi. ...............Management
AWARD
The workman Sh.Vijay Singh Negi, raised an industrial
dispute regarding the termination of his services by the management
of M/s. York Hotel. Direct statement of claim was filed by the
D.I.D. No. 484/09 Page 1 out of 64
workman in the court. In the statement of claim, it is stated by the
workman that the workman has been working with the management
since last 15 years and the last drawn wages of the workman were Rs.
4995.70 per month; that it is within the knowledge of the management
that the workman met with an accident on 13.01.2005, at about 7.30
A.M. within the jurisdiction of PS Rajabpur, J.P. Nagar, U.P. and
thereafter the workman was treated by the various doctors of the
different hospitals i.e. by Jivan Jyoti Sewa Sansthan Gajrola U.P. Dr.
Kumar, Dr. Rajnath, Dr. Vivek of ESIC hospital Basai Darapur, New
Delhi; that all the information regarding the accident and treatment
have been submitted and given to the management by the workman
from time to time; that the right leg of the workman was operated by
the doctors of AIIMS on 14.10.2005, and the workman was
discharged by the said hospital on 23.10.2005; that it may be noted
that the workman after that personally met the management and it has
been brought to the notice of the management, that as per the advise
of the doctors, the workman is/was unable to join the duties; that
however, it was assured by the management that as and when the
fitness certificate is issued to the workman by the Doctor, the
workman can resume duty; that on 18.07.2006, the workman was
issued the fitness certificate, by the Dr. of ESIC Hospital CMO ESIC
Hospital Basai Darapur, New Delhi, i.e. by Dr. Kulwant Kaur, and on
D.I.D. No. 484/09 Page 2 out of 64
the basis of the said certificate, the workman went to the business
premises of the management to resume duty on 18.07.2006, along
with the fitness certificate; that the workman regularly visited the
business premises of the management w.e.f. 18.07.2006 till
17.08.2006, but the workman was not allowed to perform the duty,
and therefore, the workman through his union on 17.08.2006, lodged
the complaint with the Assistant Labour Commissioner Curzon Road,
Kasturba Gandhi Marg, New Delhi; that even prior to the complaint
dated 17.08.2006, the workman on 14.08.2006, has intimated the
management, that inspite of the fitness certificate issued to the
workman, the management, did not allow the workman to resume the
duty, which is highly illegal, improper, arbitrary, without jurisdiction
and against the provisions of the law, and all the aforesaid acts shows
an act of victimization, unfair labour practice, besides being illegal
termination from the service; that however, the Assistant Labour
Commissioner on the complaint of the workman dated 17.08.2006,
deputed Inspector Sh. Satish Kumar Rawat, with the directions to visit
the business premises of the management along with the workman,
and to ask the management to allow and permit the workman to join
his duty; that however, as per the directions of the Labour Inspector
Sh. Satish Kumar Rawat the management allowed the workman to
perform the job w.e.f. 25.08.2006, and even the management issued a
D.I.D. No. 484/09 Page 3 out of 64
letter dated 25.08.2006 in the name of the Assistant Labour
Commissioner, with an assurance that the workman shall perform the
same job, which the workman was in fact, performing prior to
13.01.2005 i.e. the job of Steward cum Butler; that contradiction and
acts of 420 on the part of the management are established from the
fact when the management on 25.08.2006 also issued a letter to the
workman stating in the said letter that the workman shall have to
work as Masalchi; that again the matter was brought to the notice of
the Labour Commissioner and the concerned Inspector, but as per the
advise of the Labour Inspector, the workman started working as
Masalchi, taking into consideration the non availability of the job in
Delhi; that the workman while working as Masalchi, and while
cleaning the pots in the hotel have also taken his photographs to the
effect which are being filed with the statement of claim; that the
workman was hardly able to work as Masalchi for 2526.08.2006,
when at about 9 PM on 26.08.2006, the respondent no.3 in
furtherance of his common intention at the instigation of the respondent no.1 and 2 have given first, and kicks, blows on the right leg of the workman, on the side where the iron rod, was inserted, after accident, and after 26.08.2006, till date the workman was advised bed rest by the doctor; that because of the aforesaid unlawful and illegal acts of the management the workman gave a call at No. 100; that the D.I.D. No. 484/09 Page 4 out of 64 SubInspector Sh. Suresh Pal of P.S. Connaught Place took the workman to RML Hospital, New Delhi, MLC No. 114594/06 was conducted; that it has been mentioned in the MLC that iron plate which has been inserted in the right leg of the workman has been bend and shoft issue injury has been caused to the workman; that the said MLC has been prepared by Dr. Ramesh Kumar dated 27.08.2006; that the doctor has advised complete bed rest to the workman for three days i.e. upto 30.08.2006; that on 30.08.2006, the workman was transferred to ESIC Hospital Basai Darapur, New Delhi for check up, by the Doctors of RML Hospital, New Delhi, because of the pain in the right leg; that the slip was also issued by the OPD of the ESIC Hospital dated 30.08.2006 to the workman; that the doctor of the ESIC hospital has given the complete bed rest to the workman w.e.f. 30.08.2006 upto 22.09.2006; that after 12.10.2006, the workman after obtaining the fitness certificate from ESIC Hospital Basai Darapur, New Delhi, again went to resume the duty with the management, but the management refused to take back the workman on duty; that again a complaint dated 17.10.2006 was lodged with Labour Commissioner, Curzon Road, New Delhi and again the Inspector Sh. Satish Kumar Rawat was deputed, and the inspector along with the workman went to the business premises of the management on 26.10.2006, and directed the management to allow D.I.D. No. 484/09 Page 5 out of 64 and permit the workman to resume his duty but the management refused to take the workman on duty; that the Labour Inspector in view of the anti labour attitude of the management prepared a report dated 26.10.2006, that the management is not ready and willing to allow and permit the workman to join the duty; that regarding the incident dated 26.08.2006, a complaint was lodged, with the police station Connaught Place, New Delhi, and since no action has been taken by the local police, therefore, the workman was forced to file an application u/s 156 (3) Cr.P.C. before the court of Sh. Vikas Dhull, M.M. Patiala House Courts, Delhi in CC No. 2086/1 dated 28.09.2006 and the learned Magistrate vide order dated 28.09.2006 was pleased to give necessary directions to the SHO P.S. Connaught Place, New Delhi to lodge the FIR against the management, however, the said case is fixed for 25.01.2007 and the police has not taken any action so far as per the directions of the learned MM Patiala House Courts, Delhi; that however, regarding the incident dated 26.08.2006, the workman has also submitted the report of the Assistant Labour Commissioner on 28.08.2006; that since the management illegally withheld the earned wages of the workman for the period 18.07.2006, upto 28.08.2006, therefore, the workman was again forced to file a complaint before the Assistant Labour Commissioner, Curzon Road, New Delhi dated 12.09.2006, and on the basis of the said report again D.I.D. No. 484/09 Page 6 out of 64 the Inspector was deputed by the Assistant Labour Commissioner regarding the payment of the wages of the workman, the Labour Inspector visited the business premises of the management and asked them to clear the earned wages of the workman for the period of 18.07.2006 to 28.08.2006, but since the management refused to pay the earned wages of the workman for the said period therefore, the Labour Inspector submitted the report with the Labour Commissioner dated 18.09.2006; that since the earned wages of the workman were not paid by the management, therefore, the workman filed a case under the provisions of the Shops and Establishment Act, for earned wages viz. statement of claim dated 11.10.2006 and the said case is fixed for 23.11.2006 for further proceedings; that basically the workman was terminated from the service w.e.f.
18.07.2006/26.08.2006, by the management, while not allowing the workman to resume his duty, and when the management illegally and improperly withheld the earned wages of the workman for the period 17.07.2006 till date, inspite of the Labour Inspector and inspite of the directions of the Assistant Labour Commissioner as stated above and as such the termination of the workman from the service is highly illegal, improper, arbitrary, without jurisdiction and against the provisions of the Industrial Dispute Act, as no charge sheet, memo etc was issued to the workman by the management prior to the alleged D.I.D. No. 484/09 Page 7 out of 64 and so called termination and even no domestic inquiry was conducted, and therefore, the Acts, committed by the management are the clear violation of Section 25 F of the I. D. Act; that it may not be out of place to mention here that even otherwise the management is bound to provide alternative job to the workman in the same concern, under the provisions of the Persons with Disabilities (Equal opportunities Protection of rights and full participation) Act, 1995; that even otherwise the management, illegally and unlawfully withheld the earned wages of the workman for the period 18.07.2006 till 28.08.2006 which further shows, malafide on the part of the management; that since the management is covered by the ESIC Act, therefore, till 18.07.2006, the workman was being paid ½ of the salary by the ESIC, but since the date of the report of the Labour Inspector and since the date of the joining of the service by the workman with the management i.e. w.e.f. 18.07.2006, the ESIC has stopped making the payment of ½ salary of the management as a result of which the workman is suffering mental tension, agony hardship and pain and it is quite difficult for the workman to maintain and manage the family consisting of wife, three minor children aged 9, 7 and 1 year and since the two children are school going; that the workman even sent a notice of demand dated 14.11.2006, on the management, but inspite of the service of the notice of demand the management has not taken D.I.D. No. 484/09 Page 8 out of 64 back the workman on duty after 26.08.2006; that the termination of the service of the workman by the management, is highly illegal, improper, arbitrary, without jurisdiction, an act of victimization, unfair labour practice, besides being illegal termination and therefore, the workman is entitled to get full back wages as per Minimum Wages Act, fixed by the NCT of Delhi from time to time, and continuity of service; that because of the motor accident the disability in the right leg of the workman was less, but because of the beatings given to the workman by the management the disability in the right leg has developed and the disability certificate issued by the doctors to this effect are also being filed with the statement of claim; that however, against the damages and inconvenience cause to the workman by the management on 26.08.2006 the workman reserve a right to claim damages from the management and also to take appropriate criminal action against the management in an appropriate court of law entirely at the risks and costs of the management; that he is unemployed since the date of his termination, hence he has claimed reinstatement with full back wages and other consequential benefits.
Notice of filing of the statement of claim was sent to the management who appeared and contested the claim filed by the workman by filing its written statement. In the written statement filed by the management no. 1 it has taken the preliminary objections that D.I.D. No. 484/09 Page 9 out of 64 no cause of action of alleged termination of the workman on 18.07.2006/28.08.2006 or on any other date thereafter, which could be termed as termination of the services of the workman; that thus the alleged industrial dispute of termination of services of workman is imaginary and premature; that it does not come within the ambit of section 2A or 2(k) of Industrial Disputes Act, 1947 and accordingly no proceedings can be held legally on this alleged dispute of termination or on any statement of claim filed by the workman in pursuant of the aforementioned notification; that on this ground, no legal proceedings can be held on the statement of claim filed by the workman in pursuant of notification No. F.14(5)/LA2003/1156 dated 25.07.2003 and no relief can be granted on such statement of claim and the same is not legally maintainable and liable to be dismissed outrightly; that admittedly, the matter was not referred for adjudication under section 10 of Industrial Disputes Act, 1947, so the same cannot be proceed with under aforesaid notification No. F. 14(J)/LA2003/1156 dated 25.06.2003 as there existed no industrial dispute much less the alleged imaginary termination of services of workman; that the workman met an accident not during and in course of his employment but during his leave period while going to his native village place and is not medically fit so far to do his normal duties of a steward; that in case, he recovers to do the duties of D.I.D. No. 484/09 Page 10 out of 64 steward, he will be taken on duty, so no cause of action arises on the matter of his being medically unfit, which could be termed as industrial dispute as per section 2 (k) or 2A of Industrial Disputes Act, 1947 nor such matter can be subject matter of adjudication under above mentioned notification; that accordingly, no proceedings can be held legally in this matter under Industrial Disputes Act, 1947 nor any relief, claimed by him, can be granted to him; that the statement of claim, filed by the workman before the Hon'ble Court in pursuant of aforementioned notification No. F.14(5)/LA2003/1156 dated 25.07.2003, is not maintainable because it does not fulfill the requirements of said notification for filing of statement of claim under the aforesaid notification because of the reasons that the statement of claim/dispute can be filed before Hon'ble Court directly in view of aforementioned notification in case the management communicates to the workman that he has been discharged from the employment of the establishment, but the services of the workman have not been terminated by the management rather he is not medically fit to resume his duties, so question of discharging him from the employment by the management does not arise; that as such, the statement of claim/dispute raised by the workman before Hon'ble Court is without any basis and liable to be dismissed outrightly; that the statement of claim/dispute can be filed before Hon'ble Court directly in view of D.I.D. No. 484/09 Page 11 out of 64 aforementioned notification in case the management communicates to the workman that he has been dismissed from the employment of the establishment but the services of the workman has not been dismissed by the management rather he is not medically fit to resume his duties, so question of dismissing him from the employment by the management did not arise; that the statement of claim/dispute can be filed before Hon'ble Court directly in view of aforementioned notification in case the management communicates to the workman that he has been retrenched from the employment of the establishment, but the services of the workman have not been retrenched by the management rather he is not medically fit to resume his duties, so question of retrenching him from the employment by the management did not arise; that the statement of claim/dispute can be filed before Hon'ble Court directly in view of aforementioned notification in case the management communicates to the workman that he has been terminated from the employment of the establishment, but the services of the workman have not been terminated by the management rather he is not medically fit to resume his duties, so question of terminating him from the employment by the management did not arise; that the statement of claim can be filed by the workman for adjudication, only in case the management has discharged or dismissed or retrenched or terminated the employment D.I.D. No. 484/09 Page 12 out of 64 of the workman and also communicated to him in this regard; that in absence of any such alleged action and more important in absence of any such communication the statement of claim cannot be filed for adjudication in pursuant of aforementioned notification and no relief can be granted to the workman, as claimed by him; that the Hon'ble Court has jurisdiction to adjudicate the statement of claim/industrial dispute filed by the workman in pursuant of notification No. F. 14(5)/LA2003/1156 dated 25.07.2003 only in case the workman files any communication issued by the management to him either discharging or dismissing or retrenching or terminating his employment and in absence of the same the Hon'ble Court has no jurisdiction to entertain or adjudicate any such alleged industrial dispute, so in the present matter also, in absence of any aforementioned communication filed by the workman, the Hon'ble Court has no jurisdiction to proceed with the matter; that presuming, without admitting, if there is any dispute of workman against the management on alleged termination of services, which never occurred till date, even then, the said alleged dispute cannot be adjudicated by way of directly filing before Hon'ble Court in pursuant of aforementioned notification and same can be raised only through the conciliation proceedings; that the Hon'ble Court has jurisdiction to adjudicate the statement of claim/industrial dispute filed by the D.I.D. No. 484/09 Page 13 out of 64 workman in pursuant of notification No.F.14(5)/LA2003/1156 dated 25.07.2003 only in case the workman files any communication issued by the management to him either discharging or dismissing or retrenching or terminating his employment and in absence of the same the Hon'ble Court has no jurisdiction to entertain or adjudicate any such imaginary industrial dispute, so in the present matter also, in absence of any aforementioned communication filed by the workman, the Hon'ble Court has no jurisdiction to proceed with the matter; that the proceedings with the present matter will even otherwise amount to adjudication of a dispute, which is imaginary industrial dispute and not any real dispute in fact, which even otherwise cannot be adjudicated in the presence proceedings; that the workman joined employment of the management w.e.f. 01.12.1995 in terms of letter dated 01.12.1995; that he was employed as Waiter; that the rate of his last drawn salary was Rs. 4,972.70 per month at the time of his accident; that it is stated that the workman informed the management later on that he met with an accident on 13.01.2005; that he met the accident in the State of UP, while he was going to his native place during his leave period; that he did not meet accident during or in the course of employment; that it is a matter of record as to what and where the workman received his medical treatment; that it is denied that the management is in knowledge of the treatment taken by him;
D.I.D. No. 484/09 Page 14 out of 64 that the management had no knowledge earlier that the workman was discharged on 23.10.2005 from AIIMS; that it is absolutely wrong and denied that on 23.10.2005 or immediately thereafter the workman met the management; that since he did not come on 23.10.2005 or immediately thereafter, so there was no question of assuring the workman to report for duty; that the workman first reported for duty on 06.07.2005 without any fitness certificate; that he was unable to stand straight; that his physical condition was very bad ; that he could hardly walk with the help of stick; that being the steward, he was required to stand on his feet for considerable period of time to take the orders from the guests and to serve them and he had to move from table to table to serve the guests while carrying dishes and also to clean the table as and when required; that he was accordingly advised that he should recover fully and then he should report for duty and the period of his absence would be treated as leave without pay; that it will be worthwhile to mention that even on the intervention and insistence of the labour office, the management agreed to provide to the workman an alternative employment as a masalchi, even for which, in its view, the workman was not fully medically fit to do the job and that too without effecting his the then existing emoluments; that he refused to do the work of masalchi on the ground that the said job was below to his dignity; that however, afterwards the workman D.I.D. No. 484/09 Page 15 out of 64 agreed to join as a masalchi on 25.08.2006 after an agreement to this effect was reached in the labour department; that the workman however did not perform the duty of masalchi and kept sitting idle in spite of repeatedly advised to perform his duties; that even on 26.08.2006, the workman came in the restaurant and did not start the assigned work of masalchi; that at this, the management issued him a letter in writing to which he declined to accept; that instead the workman called the police by dialing number 100 and leveled false and fabricated allegations against the restaurant manager and the management; that ever since, thereafter the workman never reported for duty; that he joined duty on 25.08.2006 but neither he worked on 25.08.2006 nor 26.08.2006 after creating aforementioned drama and never reported for duty thereafter; that it is denied that the workman came to the restaurant on 18.07.2006 or he continued coming to restaurant thereafter; that as already stated, the workman first came to the restaurant on 06.07.2005 and afterwards on 25.08.2006 and 26.08.2006 as stated above; that any alleged complaint made by the workman at the back of management is of no consequence; that moreover the management has rebutted the allegations of the workman before the Govt. Authorities as the same were not based on the facts; that even the labour department was informed from time to time about the facts; that it is again informed that he was offered the D.I.D. No. 484/09 Page 16 out of 64 job of masalchi, which he first refused to do as he considered the same lowering his esteem; that the workman was not able to do the work of steward, so for that reason only, he was offered the job of masalchi at the repeated insistence of labour department and workman that he should be given some employment of such nature that he has not to move around for said job; that he first refused to do the masalchi job but later on before labour office he agreed to do the job and reported for duty on 25.08.2006 but he neither worked on 25.08.2006 nor 26.08.2006 and created the abovementioned drama by calling the police and putting false allegations against the manager and management; that it is clear that he has reported for duty in a preplanned manner to create a scene because he did not want to do the job of masalchi and he was physically unfit to do the job of steward and the management thinks that still he is not fit to do the said job; that in case he is physically fit, then he can join the said duty of steward; that in case still he agrees, he can do the job of masalchi; that the allegation of beating him on 26.08.2006, in the restaurant are absolutely false and fabricated; that he had a preplan to create the scene on 26.08.2006 because he did not want to do the job of masalchi as the same was hurting his ego on account of lower grade work and at the same time he was unable to do the work of steward physically; that the medical legal certificate dated 16.08.2006 filed D.I.D. No. 484/09 Page 17 out of 64 by the workman also shows no sign of external injury; that the workman was working as steward and not as butler nor as steward cumbutler; that the work of masalchi was offered at the insistence of the labour department and the workman, though the management was of the view he was unable to do the work of masalchi; that photos filed by the workman showing him standing along with the pots further prove that he was planning to create evidence in a preplanned manner to create the subsequent scene of calling police and putting false allegations of beating; that otherwise, there was no occasion to take such photographs; that it proves the ulterior motive of the workman; that in the discharge report by R.M.L. Hospital, there is clear mention that there is no external injury and it is denied that there is any mention that any plate insterted in the right leg of the workman has been bent and soft tissue injury has been caused to the workman; that he was not physically capable of doing the normal duties; that the workman has stated that he was advised rest from 30.08.2006 to 22.09.2006; that he again wrote that he got fitness certificate on 12.10.2006 from the ESI Corporation; that the workman did not report for duty on 12.10.2006; that regarding the complaint dated 17.10.2006, when labour inspector visited office of the management, all the facts were explained by the management to him; that the management conveyed its intentions that it was ready to take D.I.D. No. 484/09 Page 18 out of 64 workman on duty, if he is fully physically fit to resume his duties; that as he was apparently not fit to perform his duties as per his job description and had also refused to perform alternative job of misalchi; that the management had no knowledge of any report of labour inspector or that of Asst. Labour Commissioner nor copy of such reports was provided to the management; that the management has no knowledge as to whether any FIR was lodged by the order of any criminal court or any criminal case is pending before any criminal court; that the workman went on leave and he met an accident on 13.01.2005, while on his way to home during his leave period; that thereafter, he did not perform any duty till date not even on 25.08.2006 and 26.08.2006, when he reported for duty; that it is absolutely false and denied that the workman earned any wages for the period 18.07.2006 to 28.08.2006; that the workman did not perform duty during this period, so question of earning of any wages during this period never arose; that the alleged complaint dated 12.09.2006 filed by him before Asst. Labour Commissioner, is absolutely, baseless and without any foundation; that the contentions of his complaint dated 12.09.2006 and the contentions/allegations raised by him in this regard are false and denied; that the management replied said complaint dated 12.09.2006 of workman vide its letter dated 15.09.2006; that the management had no knowledge about the D.I.D. No. 484/09 Page 19 out of 64 report, if any, of the labour inspector submitted before the labour commissioner; that the matter filed by the workman under the provisions of Shops and Establishment Act for earned wages vide his statement of claim dated 11.10.2006 is not based on facts, have been filed with ulterior motives; that the management has submitted its reply dated 26.06.2007 to the statement of claim before the Authority under Shops and Establishment Act; that it is denied that the management terminated the services of the workman w.e.f. 18.07.2006 or 26.08.2006; that in fact till the last workman reported for duty on 26.08.2006, he was not fit to do his normal job of steward at all and even did not do the work of masalchi; that the workman may report for duty in case he recovers from the illness and is medically fit to do his normal duties; that the workman must get fitness certificate from the competent Govt. authority specifying clearly about his duties what he was performing; that it is denied that the workman worked from 17.07.2006 to 28.08.2006 or his any earned wags for this alleged period were withheld; that in fact he did not perform any duty during this period and did not even report for duty from 17.07.2006 to 26.08.2006 and did not perform any duty when he reported for duty on 27.08.2006 and 28.08.2006; that the allegations of illegal termination is imaginary, false and denied and accordingly, the alleged imaginary termination being improper D.I.D. No. 484/09 Page 20 out of 64 arbitrary or without jurisdiction or against the provisions of Industrial Disputes Act or without issuing charge sheet/memo or without holding enquiry etc is irrelevant, wrong and denied; that it is denied that the management committed any violation under section 25 F of the Industrial Disputes Act, 1947 or that any act of the management is that of anti labour attitude or an act of victimization or unfair labour practice or illegal; that the workman did not perform any duty 18.07.2006 to 28.08.2006 and as such he did not earn any wages, so question of withholding his wages for this period never arose; that the workman is still not medically fit to resume his normal duties; that the matter of payment of wages by the ESI can be decided by the said department only; that the workman should put the facts of his inability to do the job before the said authority; that a demand notice 14.11.2006 was received by the management and in the meantime the management also received the statement of claim dated 26.11.2006 filed by the workman; that his services have not been terminated, so relief of continuity of service is irrelevant. All other allegations are denied by the management.
In rejoinder to the Written Statement of the management, all the averments of the management are denied and that of Statement of claim are reaffirmed by the workman.
On the pleadings of the parties, vide order dated 04.03.2008 D.I.D. No. 484/09 Page 21 out of 64 the following issues were framed: (1)Whether the claim of the workman is maintainable?
(2)Whether the services of the workman were terminated wrongfully and illegally?
(3)Whether the workman not fit to join the duty?
(4)Whether workman entitled to monetary relief, if any?
No other issue arose or pressed and the case was adjourned for workman evidence.
In support of his case, workman himself appeared as WW1, filed his evidence by way of affidavit Ex.WW1/1. In his affidavit, he has reiterated all the averments of his statement of claim. He has relied upon the documents Exts.WW1A to WW1/S, on record.
After examining himself as WW1, the workman has closed his evidence, on record.
In support of its defence, the management has examined MW1 Sh.D.S. Randhawa, Manager of the management, who has tendered his evidence by way of affidavit Ex.MW1/A as also relied upon documents already Ex.WW1/M1 to Ex.WW1/M6, on record. In his affidavit he has reiterated all the averments of the written statement.
After examining MW1, the management has closed its
D.I.D. No. 484/09 Page 22 out of 64
evidence.
Final arguments have been heard. My findings on the
issues are as follows:
Issue no.1.
It is seen from the record that no serious objection has been taken on the part of the management in respect of the maintainability of the instant statement of claim in this Court apart from alleging that the same is not maintainable in view of the management having not terminated the services of the workman by any written order and only in case the workman filed any communication issued by the management to him either discharging, dismissing, retrenching or terminating his employment this Court has got the jurisdiction to adjudicate upon the subject dispute under/ pursuant to Notification No.F14 (5)/LA.2003/1156 dated 25.07.2003 and in the absence of the same this Court is not having the necessary jurisdiction to try and adjudicate upon the instant dispute in view of the workman having not filed any written order of the management terminating his services which in fact have allegedly never been terminated on the part of the management and in fact it is the workman who has been medically unfit to perform his duties as a waiter with the management, which I find from the record has not been seriously pressed on the part of the management in its evidence, D.I.D. No. 484/09 Page 23 out of 64 on record, either in the crossexamination of the workman as WW1 in workman evidence or by way of its management evidence by way of testimony of MW1 Sh. D.S. Randhawa, Manager of the management as also it is seen from the record that the instant dispute has been raised by the workman against the management in respect of the alleged termination of his services on its part w.e.f. 18.07.2006 to 26.08.2006 by not allowing the workman to rejoin his duties as a steward with it and accordingly it cannot be said that the same is not a dispute as provided under the provision of Section 2 A of the Industrial Disputes Act, 1947 (as amended upto date) filed on the part of the workman against the management and not maintainable under the provisions of Section 10 (4A) of the Industrial Disputes Act, 1947 (as amended upto date) in this Court on the relevant date. The issue no.1 is accordingly decided in favour of the workman and against the management.
Issue no. 2 It is seen from the record that the workman has appeared in his workman evidence as WW1, tendered his affidavit by way of evidence in the same Ex.WW1/1 as also relied upon documents Exts. WW1/A to WW1/S in the same, on record. In his affidavit by way of evidence Ex.WW1/1 the workman has reiterated the contents of his statement of claim to the effect that the workman had been working D.I.D. No. 484/09 Page 24 out of 64 with the management since last 15 years and the last drawn wages of the workman were Rs. 4995.70 per month; that it is within the knowledge of the management that the workman met with an accident on 13.01.2005 at about 7.30 A.M. within the jurisdiction of Police Station Rajabpur J.P. Nagar, U.P. and thereafter the workman was treated by the various doctors of the different hospitals i.e. by Jivan Jyoti Sewa Sansthan, Gajrola, U.P. Dr. Kumar, Dr. Raj Nath, Dr. Vivek of ESIC hospital, Basai Darapur, New Delhi; that all the information regarding the accident and treatment have been submitted and given to the management by the workman from time to time; that the right leg of the workman was operated by the doctors of AIIMS on 14.10.2005 and the workman was discharged by the said hospital on 23.10.2005; that the workman after 13.01.2005 personally met the management and it has been brought to the notice of the management that as per the advise of the doctors, the workman is/was unable to join the duties; that however, it was assured by the management that as and when the fitness certificate is issued to the workman by the doctor, the workman can resume duty; that on 18.07.2006, the workman was issued fitness certificate by the doctor of ESIC hospital, CMO ESIC hospital, Basai Darapur, New Delhi i.e. Dr. Kulwant Kaur and on the basis of the said certificate, the workman went to the business premises of the management to resume duty on 18.07.2006 D.I.D. No. 484/09 Page 25 out of 64 along with the fitness certificate; that the workman regularly visited the business premises of the management w.e.f. 18.07.2006 till 17.08.2006 but the workman was not allowed to perform the duty and therefore the workman through his union on 17.08.2006 lodged the complaint with the Assistant Labour Commissioner, Curzon Road, Kasturba Gandhi Marg, New Delhi; that even prior to the complaint dated 17.08.2006 the workman on 14.08.2006 has intimated the management that inspite of the fitness certificate issued to the workman, the management did not allow the workman to resume the duty, which is highly illegal, improper, arbitrary, without jurisdiction and against the provisions of the law and all the aforesaid acts shows an act of victimization, unfair labour practice besides being illegal termination from the service; that however, the Assistant Labour Commissioner on the complaint of the workman dated 17.08.2006, deputed inspector Sh. Satish Kumar Rawat with the direction to visit the business premises of the management along with the workman and to ask the management to allow and permit the workman to join his duties; that however, as per the directions of the labour inpsector Sh. Satish Kumar Rawat, the management allowed the workman to perform the job w.e.f. 25.08.2006 and even the management issued a letter dated 25.08.2006 in the name of the Assistant Labour Commissioner with an assurance that the workman shall perform the D.I.D. No. 484/09 Page 26 out of 64 same job which the workman was infact performing earlier to 13.01.2005 i.e. the job of Steward cum butler; that the contradiction and acts of 420 on the part of the management are established from the fact when the management on 25.08.2006 also issued a letter to the workman stating in the said letter that the workman shall have to work as 'masalchi'; that again the matter was brought to the notice of the Labour Commissioner and the concerned inspector but as per the advise of the labour inspector, the workman started working as masalchi, taking into consideration the nonavailability of job in Delhi; that the workman while working as masalchi and while cleaning the pots in the hotel has also taken his photographs to this effect which are being filed with the statement of claim; that the workman was hardly able to work as masalchi for 2526/08/2006 when at about 9.00 P.M. on 26.08.2006 the respondent no.3 in furtherance of his common intention at the instigation of the respondent nos. 1 and 2 have given fist and kicks blows on the right leg of the workman on the side where the iron rod was inserted after accident and after 26.08.2006 till date the workman was advised bed rest by the doctor; that because of the aforesaid unlawful and illegal acts of the management the workman gave a call at no. 100; that sub inspector Sh. Suresh Pal of Police Station, Connaught place took the workman to RML hospital, New Delhi, MLC no. 114594/06 was D.I.D. No. 484/09 Page 27 out of 64 conducted; that it has been mentioned in the MLC that iron plate which has been inserted in the right leg of the workman has been bent and shoft issue injury has been caused to the workman; that the said MLC has been prepared by Dr. Ramesh Kumar dated 27.08.2006; that the doctor has advised complete bed rest to the workman for three days i.e. upto 30.08.2006; that on 30.08.2006 the workman was transferred to ESIC Hospital, Basai Darapur, New Delhi for check up by the doctors of RML hospital, New Delhi because of the pain in the right leg; that the slip was also issued by the OPD of the ESIC hospital dated 30.08.2006 to the workman; that the doctors of the ESIC hospital has given the complete bed rest to the workman w.e.f. 30.08.2006 upto 22.09.2006; that after 12.10.2006 the workman after obtaining the fitness certificate from ESIC hospital Basai Darapur, New Delhi again went to resume duty with the management but the management refused to take back the workman on duty; that again a letter dated 17.09.2006 to management and complaint was lodged with Labour Commissioner, Curzon Road, New Delhi and again the Inspector Sh. Satish Kumar Rawat was deputed and the Inspector along with the workman went to the business premises of the management on 26.10.2006 and directed the management to allow and permit the workman to resume his duty but the management refused to take the workman on duty; that the Labour Inspector in D.I.D. No. 484/09 Page 28 out of 64 view of the anti labour attitude of the management prepared a report dated 26.10.2006 that the management is not ready and willing to allow and permit the workman to join the duty; that regarding the incident dated 26.08.2006 a complaint was lodged with the police station Connaught Place, New Delhi and since no action has been taken by the local police, therefore, the workman was forced to file an application under section 156 (3) Cr.P.C. before the court of Sh. Vikas Dhull, M.M. Patiala House Courts, Delhi in C.C. No. 2086/1 dated 28.09.2006 and the learned Magistrate vide order dated 28.09.2006 was pleased to give necessary directions to the SHO, P.S. Connaught Place, New Delhi to lodge the FIR against the management, however, the said case is fixed for 25.01.2007 and the police has not taken any action so far as per the directions of the learned MM Patiala House Courts, Delhi; that however, regarding the incident dated 26.08.2006, the workman has also submitted the report of the Assistant Labour Commissioner on 28.08.2006; that since the management illegally withheld the earned wages of the workman for the period 18.07.2006 upto 28.08.2006, therefore, the workman was again forced to file a complaint before the Assistant Labour Commissioner, Curzon Road, New Delhi dated 12.09.2006 and on the basis of the said report again the inspector was deputed by the Assistant Labour Commissioner regarding the payment of the wages D.I.D. No. 484/09 Page 29 out of 64 of the workman, the Labour Inspector visited the business premises of the management and asked them to clear the earned wages of the workman for the period 18.07.2006 to 28.08.2006, but since the management refused to pay the earned wages of the workman for the said period, therefore, the Labour Inspector submitted the report with the Labour Commissioner dated 18.09.2006; that since the earned wages of the workman were not paid by the management, therefore, the workman filed the case under the provisions of Shops and Establishment Act, for earned wages i.e. statement of claim dated 11.10.2006 and the said case is fixed for 23.11.2006 for further proceedings;that basically the workman was terminated from the service w.e.f. 18.07.2006/26.08.2006, by the management, while not allowing the workman to resume his duty, and when the management illegally and improperly withheld the earned wages of the workman for the period 17.07.2006 till date, inspite of the Labour Inspector and inspite of the directions of the Assistant Labour Commissioner as stated above, and as such the termination of the workman from the service is highly illegal, improper, arbitrary, without jurisdiction and against the provisions of Industrial Disputes Act, as no charge sheet, memo etc. was issued to the workman by the management prior to the alleged and so called termination and even no domestic enquiry was conducted and therefore, the acts committed by the management are D.I.D. No. 484/09 Page 30 out of 64 the clear violation of the section 25 F of the I.D. Act; that the acts committed by the management are nothing but anti labour attitude, an act of victimization, unfair labour practice besides being illegal termination of service; that even otherwise the management is bound to provide alternative job to the workman in the same concern under the provisions of the Persons with Disabilities (Equal opportunities Protection of Rights and Full Participation) Act, 1995; that even otherwise the management illegally and unlawfully withheld the earned wages of the workman for the period 18.07.2006 till 28.08.2006 which further shows, malafide on the part of the management; that since the management is covered by the ESIC Act, therefore, till 18.07.2006, the workman was being paid ½ of the salary by the ESIC but since the date of the report of the Labour Inspector and since the date of the joining of the service by the workman with the management i.e. with effect from 18.07.2006, the ESIC has stopped making the payment of half salary of the management as a result of which the workman is suffering mental tension, agony, hardship and pain and it is quite difficult for the workman to maintain and manage the family consisting of wife, three minor children aged 9,7 and 1 year and since the two children are school going; that the workman even sent a notice of demand dated 14.11.2006 on the management but inspite of the service of the notice of demand, the D.I.D. No. 484/09 Page 31 out of 64 management has not taken back the workman on duty after 26.08.2006; that the termination of the service of the workman by the management is highly illegal, improper, arbitrary, without jurisdiction, an act of victimization, unfair labour practice besides being illegal termination and therefore, the workman is entitled to get full back wages as per the Minimum Wages Act fixed by the NCT of Delhi from time to time, and continuity of service; that because of the motor accident the disability in the right leg of the workman was less, but because of the beatings given to the workman by the management the disability in the right leg has developed and the disability certificate issued by the doctors to this effect are also being filed with the statement of claim; that however, against the damages and inconvenience caused to the workman by the management on 26.08.2006 the workman reserve a right to claim damages from the management and also to take appropriate criminal action against the management in an appropriate court of law entirely at the risks and costs of the management;that Hon'ble court may kindly be pleased to pass an award in favour of the workman and against the management directing the management to reinstate the workman on service with full back wages and continuity of service w.e.f. 18.07.06/26.08.06; that since inspite of the report of the Labour Inspector Sh.Satish Kumar Rawat dated 18.09.06 and 26.10.06 since the management did D.I.D. No. 484/09 Page 32 out of 64 not allow the workman to perform his duty and since the workman was not allowed to do any kind of job with the management, therefore, the learned ALC and the Labour Inspector in his reports have submitted that the matter can be referred to the Industrial Tribunal Under Section 10 (1) (c) of the I.D. Act; that in view of the report submitted by the Labour Inspector with the ALC the matter may kindly be referred to the Industrial Tribunal for adjudication and the reference to this effect may kindly be made; that however, since no reference under section 10(1) (c) of the I.D. Act was made on the basis of the reports of the Labour Inspector as stated above, hence the present statement of claim is being filed with the present prayer; that costs of the statement of claim may also be awarded in favour of the workman and against the management ; that such other and further relief with this Hon'ble Court may deems fit and proper may also be passed in favour of the workman and against the management.
Ex.WW1/A being copy of the discharge summery in respect of the workman dated 23.10.2005 of the All India Institute of Medical Sciences, New Delhi110029, Ex.WW1/B being the copy of the fitness certificate dated 17.07.2006 of the ESIC hospital issued by the C.M.O. ESIC, Dr. Mrs. Kulwant Kaur in respect of the workman to the effect that he is fit to resume work on 18.07.2006, Ex.WW1/C being copy of the complaint dated 17.08.2006 of the workman D.I.D. No. 484/09 Page 33 out of 64 through his union to the ALC, New Delhi District, Curzon Road, Barracks, Kasturba Gandhi Marg, New Delhi in respect of his not being allowed to resume his dues with the management despite his having been issued medical fitness certificate by ESIC hospital for 17.07.2006, Ex.WW1/D being copy of the notice dated 14.08.2006 of the workman to the management in respect of his being not allowed to join his duties with the management despite having been issued the medical fitness certificate by the ESIC hospital, Basai Darapur, New Delhi dated 17.07.2006 and declaring him to be medically fit to resume his duties with the management consequent to the issuance of the medical fitness certificate by the concerned hospital in his respect, Ex.WW1/E being copy of reply of the management to the concerned Assistant Labour Commissioner, Curzon Road Barracks, Kasturba Gandhi Marg, New Delhi110001 dated 25.08.2006 to the complaint filed by the workman against it, Ex.WW1/F being copy of a letter dated 25.08.2006 of the management to the workman, Ex.WW1/G being copy of the discharge report dated 27.08.2006 of the R.M.L. hospital, New Delhi in respect of the workman, Ex.WW1/H Colly being copy of the hospital referral cum O.P.D ticket of the ESIC Dispensary, Paharganj, New Delhi dated 30.08.2006 along with copies of medical fitness certificates issued by the concerned ESIC Hospital, Basai Darapur, New Delhi in respect of D.I.D. No. 484/09 Page 34 out of 64 the workman, Ex.WW1/I being copy of the complaint dated 17.10.2006 of the workman through union to the Office of Assistant Labour Commissioner, New Delhi, Ex.WW1/J being copy of the reply dated 26.10.2006 of the Office of Assistant Labour Commissioner, New Delhi to the complaint dated 17.10.2006 of the workman through union to the said authority to the effect that the Labour Inspector Sh. Satish Kumar Rawat had visited the management on 18.10.2006 and met Sh. Kuldip Singh, partner in respect of the said complaint of the workman to the labour authority against the management who had refused to reinstate the workman Sh. Vijay Singh Negi on duty, Ex.WW1/K being copy of order dated 28.09.2006 of the Court of the Ld. Metropolitan Magistrate passed in complaint case No. 2086/1/06, u/s 200 Cr.PC, P.S. Connaught Place, titled as Vijay Singh Negi vs. Sumo Chakraborty & Ors., Ex.WW1/L being copy of complaint dated 28.08.2006 of the workman through union to the Assistant Labour Commissioner, New Delhi District, Curzon Road, Kasturba Gandhi Marg, New Delhi in respect of the management having not taken the workman on duty on 26.08.2006 when the workman had reported for duty with the management on the assurance of the management in writing before the Assistant Labour Commissioner on 25.08.2006 that he would be taken back on duty, Ex.WW1/M being copy of complaint dated 12.09.2006 of the D.I.D. No. 484/09 Page 35 out of 64 workman through union to the Assistant Labour Commissioner, New Delhi District, Curzon Road Barracks, Kasturba Gandhi Marg, New Delhi in respect of non payment of wages to him w.e.f. 18.07.2006, Ex.WW1/N being copy of a letter dated 18.09.2006 of the concerned labour Inspector to the workman through union in respect of non payment of the salary of the workman on the part of the management w.e.f. 18.07.2006 to 28.08.2006, Ex.WW1/O being copy of an application under the Shops & Establishment Act 1954 for recovery of the wages preferred by the workman against the management before the competent authority, Ex.WW1/P being copy of demand notice got issued by the workman through his counsel to the management in respect of his allegations against the management of his illegal termination of service and non payment of his legal dues on its part along with the postal registration and U.P.C. receipts in its respect, Ex.WW1/R Colly being photographs of the workman while performing duty with the management, Ex.WW1/S being copy of complaint to the Police and disability certificates in respect of the workman.
This witness has been cross examined at length on behalf of the management in which he has deposed inter alia that it was correct that he was working as steward in the restaurant and as a steward he had to serve the guests and to move from table to table; that it was D.I.D. No. 484/09 Page 36 out of 64 correct that he received the salary on the payment register; that he lastly attended duty on 12.01.2005; that he was going on leave to his native place while he met an accident in a public transport on 13.01.2005; that it was correct that due to this accident he got injury in his leg which resulted in limping; that he had filed a case in MACT Court; that he did not know what amount he had claimed as it is only known to his advocate only; that he had not mentioned in the claim before MACT that he was not in a position to work or his capacity to work had reduced but he had made claim only for injury sustained by him in that accident; that he had also filed the case in the Conciliation at Curzon Road; that he had received copies of Ex.WW1/M1 to WW1/M6; that he had seen the attendance record for the month of August 2006 which shows his attendance for the date 25.08.2006 and 26.08.2006; that he had filed a case in the conciliation demanding that he should be given the job of steward; that it was correct that the management has told during the conciliation that he was unable to perform the duty of steward due to limping, so the same job cannot be given to him; that it was correct that on intervention of labour department it was decided to give masalchi job to which he had refused but again on the intervention of the labour department he agreed to do the job of masachi; that it was wrong to suggest that he was given the letter for not working to which he refused; that it was D.I.D. No. 484/09 Page 37 out of 64 wrong to suggest that he made a false complaint to the police at number 100 when the letter for not working was given to him by the management; that the photographs Ex.WW1/R (Collectively) filed by him were taken on 25.08.2006 which were taken by his colleague; that it was wrong to suggest that these photographs are manipulated; that it was wrong to suggest that just to create evidence first time he manipulated to take photographs with ulterior motive; that he did not remember whether he came on 06.07.2005 in the management.Vol. he had reported for duties w.e.f. 18.07.2006; that Sh. Kuldeep Singh and Balbir Singh had assured him that he can join the management as steward boy cum butler; that the said assurance was given on 25.08.2006; that it was wrong to suggest that no assurance was given by the management to him as he was not able to perform the job of steward boy cum butler; that he went to join the duty to the management on 18.07.2006 at 11.00 A.M; that the fitness certificate was given to him by the ESIC on 18.07.2006 itself in the morning at about 08.00 A.M.; that it was wrong to suggest that no fitness certificate was given to him by the ESIC on 18.07.2006 or that he did not go to join duty on the same day; that he made complaint on 17.08.2006 with regard to not giving him duty by the management from 18.07.2006 to 17.08.2006 to the Assistant Labour Commissioner; that before lodging complaint with the Assistant D.I.D. No. 484/09 Page 38 out of 64 Labour Commissioner he made complaint to his union and union people taken the matter with the management; that he made the complaint to his union on 20.07.2006 in writing; that he had not filed the copy of said complaint on record; that it was wrong to suggest that he did not go to join his duty from 18.07.2006 to 17.08.2006 and he was raising this plea subsequently; that he worked as masalchi with the management as the said work was assigned to him by the management; that the job of masalchi was given to him by the management with the intervention of the labour office; that it was wrong to suggest that the management assigned the job of masalchi to him and later on he refused to work as masalchi and he was asking for the same job of steward cum butler in the management; that he was not aware of the Section 20 (f) of the I.D.Act as mentioned in his statement of claim in para no.6; that he was not issued any termination letter by the management; that it was wrong to suggest that he abandoned his services with the management of his own and the management did not terminate his services; that he was unemployed now a days; that he had tried to search job at 23 places but could not find any; that he tried to find job in Chickin Restaurant in Pandara Market and Moet Restaurant in Defence Colony Market around one and a half year back for the post of steward boy; that he had applied to aforesaid places for job in writing;
D.I.D. No. 484/09 Page 39 out of 64 that he did not possess the copy of said applications; that it was wrong to suggest that he was telling lie or that he did not try to find job anywhere; that it was wrong to suggest that the job which he was doing with the management is easily available; that it was wrong to suggest that the aforesaid restaurant had denied him job of steward as he was unable to perform the same; that it was wrong to suggest that his statement of claim was false or that he was deposing falsely.
Ex.WW1/M1 being copy of reply dated 25.08.2006 of the management to the complaint dated 14.08.2006 of the workman against it to the Assistant Labour Commissioner, Curzon Road Barracks, Kasturba Gandhi Marg, New Delhi110001, Exts. WW1/M2 and WW1/M3 being copies of letters dated 26.08.2006 and 28.08.2006 of the management to the workman, Exts.WW1/M4 and WW1/M5 being copy of complaint dated 28.08.2006 of the management against the workman and reply dated 15.09.2006 of the management of the complaint dated 12.09.2006 of the workman against it respectively to the Assistant Labour Commissioner, New Delhi District, Curzon Road Barracks, Kasturba Gandhi Marg, New Delhi110001, Ex.WW1/M6 being copy of a letter dated 25.08.2006 of the management to the workman.
In management evidence, the management has led the evidence of management witness Sh. D.S. Randhawa, Manager of the D.I.D. No. 484/09 Page 40 out of 64 management, in which he had appeared as MW1, tendered his affidavit by way of evidence Ex.MW1/A as also relied upon documents vide Ex.WW1/M1 to Ex.WW1/M6, on record. In his affidavit by way of evidence Ex.MW1/A the management witness Sh. D.S. Randhawa has deposed that he was employed and working as Manager with M/s York Hotel, Connaught Circus, New Delhi; that he was conversant with the facts of the case and competent to depose the same; that the claimant Sh. Vijay Singh Negi joined the management as waiter w.e.f. 01.12.1995; that the last drawn salary of the claimant was Rs. 4972.70 per month; that the claimant had applied for leave to the management on 12.01.2005 to go to his native village in Uttranchal; that leave was sanctioned and the claimant proceeded on leave; that the claimant was stated to have met with an accident on 13.01.2005 within the jurisdiction of Police Station J.P. Nagar, U.P. while he was going to his native place; that the management was never informed by the claimant about the medical treatment; that the claimant firstly reported for his duties without any fitness certificate on 06.07.2006; that the claimant was not in a position to stand straight; that the physical condition of the claimant was not good; that the claimant being a steward was required to stand straight for considerable time and also required to move from table to table to book orders from the customers and serve them with dishes; that the D.I.D. No. 484/09 Page 41 out of 64 claimant was advised by the Manager of the Restaurant that firstly he should recover fully and management will allow him to join duties if he is able to perform his duties; that the claimant agreed to the same; that the claimant thereafter approached the Labour Office and made a complaint ; that the management was summoned on 25.08.2006; that the management filed its version before the Learned Assistant Labour Commissioner and appraised him with correct facts; that during conciliation it was agreed that the claimant will join the management as masalchi and whereupon the conciliation proceeding ended; that the management in pursuance of the settlement, referred to above, arrived between the parties before the Assistant Labour Commissioner issued a letter to him asking him to join the duties as masalchi on 25.08.2006; that a copy of reply filed before the Assistant Labour Commissioner and letter written to the claimant already are on record and have been marked as WW1/M1 and WW1/M6 respectively; that in pursuance of offer made by the management to the claimant to join as masalchi, he came to the management on 25.08.2006 but did not perform any work assigned to him; that inspite of his repeated requests the claimant did not perform any duties and continued to sit idle upon which a letter dated 26.08.2006 was written to the claimant in this respect, a copy of said letter already is on record and has been marked as Ex.WW1/M2; that inspite of the said D.I.D. No. 484/09 Page 42 out of 64 letter, the claimant did not perform any duties; that on 26.08.2006 he has tendered a letter to the claimant, which he refused to accept; that on the contrary the claimant made a false and baseless complaint on 100 number and called the police only with a view to create a ground for lodging the complaint against the management; that the claimant did not want to join the management as masalchi; that a letter dated 26.08.2006 was written to the claimant and also to the Assistant Labour Commissioner, copies of the said letter already are on record and have been marked as WW1/M3 and WW1/M4 respectively; that the claimant after 13.01.2005 did not perform his duties; that the claimant thereafter filed another complaint before the labour authorities on 12.09.2006; that the management filed its reply to the same and a copy of the same is already on record and have been marked as Ex.WW1/M5; that the management is a progressive concern and did not violate any provisions of Industrial Disputes Act; that the management never terminated the services of the claimant; that the management provided alternative job of masalchi to the claimant but he failed to join the same and filed baseless and false complaint; that the claimant is not entitled to any relief in the matter.
This witness has been cross examined on behalf of the workman in management evidence, in which he has deposed that he was appointed as Manager in the management in July, 2002; that it D.I.D. No. 484/09 Page 43 out of 64 was correct that he was Manager of York Hotel and York restaurant; that it was wrong to suggest that the York Hotel and York restaurant are having different managements; that he was not having any document on that day in respect of his being manager for both York Hotel and York restaurant; that it was wrong to suggest that he was appointed as Manager for York Hotel only; that he had not brought his appointment letter on that day; that it was correct that he was no longer working in the management; that he has perused the service record of the workman; that he could not say whether the service record of the workman prior to his accident was unblemished; that he could not say whether the workman is a graduate; that it was wrong to suggest that he had not seen the service record of the workman; that it was correct that the workman had proceeded on leave w.e.f. 12.01.2005; that it was correct that the workman had met with an accident on 13.01.2005; that it was correct that the workman was covered under the ESIC scheme; that he could not say whether the ESIC had given 50% of the wages to the workman during the period of his treatment on recommendations of the management; that it was correct that the workman had reported for duty on 18.07.2006; that he could not say whether the workman had reported for duty along with medical certificate of his fitness; that it was correct that the workman had not been taken back on duty on 18.07.2006. Vol. since he was not D.I.D. No. 484/09 Page 44 out of 64 fit to perform his duties; that it was correct that the workman had made complaint to the Labour Department on his not having been taken back on duty by the management; that it was correct that thereafter, on the intervention of the Labour Inspector the workman had been taken back on duty with the management on 25.08.2006. Vol. he had been taken back in service as Masalchi; that it was wrong to suggest that the workman had been forced to do the work of dish washing when he had been taken back on duty; that it was correct that the workman had been working initially with the management as a steward; that it was correct that the post of masalchi is inferior to that of a steward; that his duty hours in August, 2006 with the management were from 10:00 A.M to 06:00 P.M; that he could not say that on 26.08.2006 at 09:00 P.M the Restaurant Manager on duty had assaulted the workman or not; that he could not say whether the workman had dialed the number 100 at that time; that he could not say whether the workman had remained in Ram Manohar Lohia Hospital w.e.f 27.08.2006 to 30.08.2006; that he could not say whether the workman had been treated for his injury in the leg by inserting of any rod in the same at that time; that it was correct that the workman had again reported for duty on 12.10.2006 along with medical fitness certificate; that it was wrong to suggest that the management had refused duty to the workman at the time when he D.I.D. No. 484/09 Page 45 out of 64 reported for duty on 12.10.2006; that he could not say whether the workman had then again preferred any complaint to the Labour Department; that it was correct that on17.10.2006 official from the Labour Department along with workman had come to the management for taking back the workman on duty; that it was wrong to suggest that the workman had not been taken back on duty. Vol. the workman had refused to perform the duty of masalchi offered to him by the management; that it was correct that the workman had not been taken back on his duty as steward with the management; that it was correct that the workman had not been taken back on his duty as steward with the management during the conciliation proceedings; that it was correct that he had appeared as a witness on behalf of workman in a MACT case instituted by the workman in the competent MACT court at Tis Hazari Courts; that it was wrong to suggest that he had refused during his deposition in the said court that the workman will not be taken back on duty by the management; that it was wrong to suggest that the workman had not abandoned his employment with the management of his own; that it was wrong to suggest that he had filed a false affidavit on behalf of the management or that he was deposing falsely.
It is seen from the record that the relationship between the parties of employer and employee is not disputed as also the factum D.I.D. No. 484/09 Page 46 out of 64 of the workman having been employed as a steward/waiter with the management w.e.f. 01.12.1995 on the last drawn wages of Rs. 4972.70/4995.70 per month as also that he had proceeded on leave from his services with the management on 12.01.2005 to go to his native village at Uttranchal and had met with an accident on 13.02.2005 within the jurisdiction of Police Station Rajabpur, J.P. Nagar, U.P. It is further seen from the record that the workman has deposed in no uncertain terms vide his affidavit by way of evidence Ex.WW1/1 in workman evidence that thereafter he had reported for duties with the management on 18.07.2006 on the basis of a medical fitness certificate vide Ex.WW1/B, however, the management had not taken him back in its service as steward with the management and that thereafter the workman had made complaint to the Assistant Labour Commissioner, New Delhi District, Curzon Road Barracks, New Delhi through his union in this regard vide letter dated 17.08.2006 Ex.WW1/6 as also had written a letter dated 14.08.2006 to the management in this regard Ex.WW1/D, on record; that thereafter on the intervention of the Labour Inspector Sh. Satish Kumar Rawat, the management had issued a letter dated 25.08.2006 to the workman to join duty as masalchi with it w.e.f. 25.08.2006 Ex.WW1/F as also had written to the Assistant Labour D.I.D. No. 484/09 Page 47 out of 64 Commissioner, Curzon Road Barracks, Kasturba Gandhi Marg, New Delhi vide its letter dated 25.08.2006 in reply to the complaint dated 14.08.2006/17.08.2006 of the workman against it, copy of which is Ex.WW1/E, on record; that the workman had joined the service of the management as masalchi on 25.08.2006 as per the advise of the Labour Inspector taking into consideration of the nonavailability of job in Delhi but due to an alleged incident on 26.08.2006 on the part of the management the workman has suffered further injury to his injured leg and had to be hospitalized for treatment; that he had lodged a police complaint against the management in this regard; that copy of the MLC dated 27.08.2006 of the concerned hospital in this regard is Ex.WW1/G, on record, in which he had been advised complete bed rest by the concerned doctor of three days w.e.f. 27.08.2006 to 30.08.2006; that the workman thereafter had got himself treated with the ESIC hospital, Basai Darapur, New Delhi which had given advise of complete bed rest to the workman w.e.f. 30.08.2006 upto 22.09.2006; that the medical documents in this regard are Ex. WW1/H (Colly) containing the fitness certificate dated 22.09.2006 issued by the ESIC hospital, Basaidarpur, New Delhi to the workman on the basis of which the workman had again gone to resume his duties with the management on 12.10.2006 but the management had refused to take him back on duty as steward with it;
D.I.D. No. 484/09 Page 48 out of 64 that thereafter the workman had again preferred a complaint dated 17.10.2006 against the management to the labour authority through union Ex.WW1/I on which again the labour inspector Sh. Satish Kumar Rawat was deputed and that the said labour inspector along with the workman had gone to the business premises of the management on 26.10.2006 but the management did not allow and permit the workman to resume his duty and had refused to take the workman back on duty; that the report of the labour inspector dated 26.10.2006 is Ex.WW1/J, on record; that regarding the incident dated 26.08.2006 the workman had also filed an application under Section 156 (3) Cr.P.C. before the concerned Ld. Metropolitan Magistrate, Patiala House Court, New Delhi vide Compliant Case No.2086/01 dated 28.09.2006 on which the Ld. Metropolitan Magistrate had passed order dated 28.09.2006, copy of the order being Ex.WW1/K; that the workman had also submitted report to the Assistant Labour Commissioner in this regard on 28.08.2006 through union, copy of which Ex.WW1/L; that the workman had complained against the management to the Assistant Labour Commissioner, Curzon Road, New Delhi vide his complaint dated 12.09.2006 in respect of the illegal withholding of the wages of the workman on the part of the management for the period w.e.f. 18.07.2006 till 28.08.2006 Ex.WW1/M on the basis of which again the labour inspector was D.I.D. No. 484/09 Page 49 out of 64 deputed by the Assistant Labour Commissioner regarding the payment of the wages of the workman who had visited the business premises of the management and had asked to clear the earned wages of the workman for the period w.e.f. 18.07.2006 till 28.08.2006 but the management had refused to pay the earned wages of the workman for the said period and thereafter the labour inspector had submitted his report dated 18.09.2006 in this regard Ex.WW1/N, that the workman has also filed the claim under the provisions of Shops and Establishment Act, 1954 with the competent authority for his earned wages for the said period vide his statement of claim dated 11.10.2006 in this regard, copy of which is Ex.WW1/O; that the workman had also got issued demand notice dated 14.11.2006 upon the management vide registered AD Post and UPC but inspite of the service of the notice of demand, the management had not taken back the workman on duty after 26.08.2006, copy of which along with postal registration receipt and UPC is Ex.WW1/P (Collectively), copy of the police complaint filed by the workman with the concerned Police Station regarding the incident dated 26.08.2006 is Ex.WW1/S along with copies of the disability certificates in respect of the workman; that alleged photographs of the workman working as masalchi with the management on 25/26.08.2006 are Ex.WW1/R Colly.
D.I.D. No. 484/09 Page 50 out of 64 The management in controvertion of the case of the workman has led the evidence of MW1 Sh. D.S. Randhawa, Manager of the management by way of his affidavit by way of evidence Ex.MW1/A as also relied upon the documents already Exts.WW1/M1 to WW1/M6, on record. In his affidavit by way of evidence Ex.MW1/A, the management witness has deposed to the effect that he was employed and working as Manager with M/s York Hotel, Connaught Circus, New Delhi; that he was conversant with the facts of the case and competent to depose the same; that the workman had joined the management as waiter w.e.f. 01.12.1995; that the last drawn salary of the claimant was Rs. 4972.70 per month; that the claimant had applied for leave to the management on 12.01.2005 to go to his native village in Uttranchal; that leave was sanctioned and the claimant proceeded on leave; that the claimant was stated to have met with an accident on 13.01.2005 within the jurisdiction of Police Station J.P. Nagar, U.P. while he was going to his native place; that the management was never informed by the claimant about the medical treatment; that the claimant firstly reported for his duties without any fitness certificate on 06.07.2006; that the claimant was not in a position to stand straight; that the physical condition of the claimant was not good; that the claimant being a steward was required to stand straight for considerable time and also required to move D.I.D. No. 484/09 Page 51 out of 64 from table to table to book orders from the customers and serve them with dishes; that the claimant was advised by the Manager of the Restaurant that firstly he should recover fully and management will allow him to join duties if he is able to perform his duties; that the claimant agreed to the same; that the claimant thereafter approached the Labour Office and made a complaint ; that the management was summoned on 25.08.2006; that the management filed its version before the Learned Assistant Labour Commissioner and appraised him with correct facts; that during conciliation it was agreed that the claimant will join the management as masalchi and whereupon the conciliation proceeding ended; that the management in pursuance of the settlement, referred to above, arrived between the parties before the Assistant Labour Commissioner issued a letter to him asking him to join the duties as masalchi on 25.08.2006; that a copy of reply filed before the Assistant Labour Commissioner and letter written to the claimant already are on record and have been marked as WW1/M1 and WW1/M6 respectively; that in pursuance of offer made by the management to the claimant to join as masalchi, he came to the management on 25.08.2006 but did not perform any work assigned to him; that inspite of his repeated requests the claimant did not perform any duties and continued to sit idle upon which a letter dated 26.08.2006 was written to the claimant in this respect, a copy of said D.I.D. No. 484/09 Page 52 out of 64 letter already is on record and has been marked as Ex.WW1/M2; that inspite of the said letter, the claimant did not perform any duties; that on 26.08.2006 he has tendered a letter to the claimant, which he refused to accept; that on the contrary the claimant made a false and baseless complaint on 100 number and called the police only with a view to create a ground for lodging the complaint against the management; that the claimant did not want to join the management as masalchi; that a letter dated 26.07.2006 was written to the claimant and also to the Assistant Labour Commissioner, copies of the said letter already are on record and have been marked as WW1/M3 and WW1/M4 respectively; that the claimant after 13.01.2005 did not perform his duties; that the claimant thereafter filed another complaint before the labour authorities on 12.09.2006; that the management filed its reply to the same and a copy of the same is already on record and have been marked as Ex.WW1/M5; that the management is a progressive concern and did not violate any provisions of Industrial Disputes Act; that the management never terminated the services of the claimant; that the management provided alternative job of masalchi to the claimant but he failed to join the same and filed baseless and false complaint.
Ex.WW1/M1 being copy of an alleged reply of the management to the Assistant Labour Commissioner to the complaint D.I.D. No. 484/09 Page 53 out of 64 dated 14.08.2006/17.08.2006 of the workman to the said authority to the effect that the workman had reported for his duty as steward with the management after taking treatment from ESIC hospital for the injury sustained by him in the accident on 13.01.2005 while proceeding on leave to his native village in Uttranchal on 06.07.2006 without any fitness certificate; that the workman was not physically fit to perform his job as a steward with the management which he had been performing with it prior to having suffered the said accident and as such the management was unable to take him back on duty as steward with it as also that the workman had declined to accept the alternative employment as masalchi offered by the management to him on the intervention of the labour authority, Ex.WW1/M2 being letter dated 26.08.2006 of the management to the workman to the effect that he was not performing his duties as masalchi to which he had been allowed to join on 25.08.2006 after a meeting with the Assistant Labour Commissioner, Ex.WW1/M3 being copy of a letter dated 28.08.2006 of the management to the workman; that he was not performing his duties as masalchi with the management to which he had been allowed to join duty by the management w.e.f. 25.08.2006 pursuant to the meeting held at the office of the Assistant Labour Commissioner, w.e.f. 26.08.2006, Ex. WW1/M4 being a letter dated 28.08.2006 of the management to the Assistant Labour Commissioner D.I.D. No. 484/09 Page 54 out of 64 (New Delhi District), Curzon Road Barracks, Kasturba Gandhi Marg, New Delhi110001 to the effect that the workman though having joined duties as masalchi with the management on 25.08.2006 but he did not work and instead sat idle and was not performing his duties as a masalchi w.e.f. 26.08.2006, Ex.WW1/M5 being copy of letter dated 15.09.2006 written by the management to the Assistant Labur Commissioner, (New Delhi District), Curzon Road Barracks, Kasturba Gandhi Marg, New Delhi110001 in reply to complaint dated 12.09.2006 filed by the workman through union in respect of non payment of his salary/dues on the part of the management for the period w.e.f. 18.07.2006 to 28.08.2006, Ex.WW1/M6 being copy of a letter dated 25.08.2006 of the management to the workman asking him to join duties as masalchi with the management w.e.f. 25.08.2006 consequent to alleged discussion held at Mr. Saxena's Assistant Labour Commissioner (NDD) office on 25.08.2006.
It is, however, seen from the record that though the management has alleged that the workman had not performed his duties as masalchi given to him on the intervention of the Assistant Labour Commissioner, (New Delhi District), Curzon Road Barracks, Kasturba Gandhi Marg, New Delhi110001 on 25.08.2006 w.e.f. 26.08.2006, however, no action has been taken by the management against the workman in this regard nor has been proved, on record, D.I.D. No. 484/09 Page 55 out of 64 apart from alleged letters dated 26.08.2006 and 28.08.2006 to the workman, Exts. WW1/M2 and WW1/M3, on record and letters dated 28.08.2006 and 15.09.2006 to the Assistant Labour Commissioner, (New Delhi District), Curzon Road Barracks, Kasturba Gandhi Marg, New Delhi110001 in this regard, Exts.WW1/M4 and WW1/M5, on record, whereas the workman vide his testimony by way of his affidavit by way of evidence Ex.WW1/1 as also vide Exts. WW1/A to WW1/S, on record, has deposed in no uncertain terms, on record, that after obtaining medical fitness certificate dated 17.07.2006 in respect of his injury from the concerned hospital viz. ESIC hospital, Basai Darapur, New Delhi, Ex.WW1/B, he had reported for duty as steward with the management on 18.07.2006 but had not been allowed to perform his duties as a steward with the management on its part on account of which he had lodged a complaint dated 17.08.2006 through his union with the Assistant Labour Commissioner, (New Delhi District), Curzon Road Barracks, Kasturba Gandhi Marg, New Delhi110001, Ex.WW1/C as also has written a letter dated 14.08.2006 to the management in respect of non taking him in his employment with the management on its part despite the medical fitness certificate dated 17.07.2006 issued by the concerned hospital in his respect, Ex.WW1/D, on record, as also that consequent to again obtaining medical fitness certificate D.I.D. No. 484/09 Page 56 out of 64 dated 22.09.2006 from the concerned hospital in his respect, Ex.WW1/H (collectively), he had again reported for his duties as steward with the management on 12.10.2006 but the management had refused to take him back on duty consequent to which again a letter dated 17.10.2006 to the management and a complaint was lodged with the Assistant Labour Commissioner (New Delhi District), Curzon Road Barracks, Kasturba Gandhi Marg, New Delhi110001, Ex.WW1/I and again labour inspector Sh. Satish Kumar Rawat was deputed who had submitted his report dated 26.08.2006 in this regard, Ex.WW1/J wherein he stated that the management is not ready and willing to allow and permit the workman to join duty despite his visit dated 18.10.2006 to the management in this regard to which allegations/deposition of the workman, on record, I find from the record there is no effective rebuttal on the part of the management either in the deposition of MW1 Sh. D.S. Randhawa, by way of his affidavit by way of evidence Ex.MW1/A as also by way of the management exhibits WW1/M1 to WW1/M6, on record. On the contrary it is seen from the record that the MW1 Sh. D.S. Randhawa, Manager of the management has corroborated the allegations of the workman against the management, as above, vide his testimony when he states in his cross examination on behalf of the workman in management evidence, on record that the workman had proceeded D.I.D. No. 484/09 Page 57 out of 64 on leave w.e.f. 12.01.2005; that it was correct that the workman had met with an accident on 13.01.2005; that it was correct that the workman was covered under the ESIC scheme; that it was correct that the workman had reported for duty on 18.07.2006; that he could not say whether the workman had reported for duty along with medical certificate of his fitness; that it was correct that the workman had not been taken back on duty on 18.07.2006; that it was correct that the workman had made complaint to the Labour Department on his not having been taken back on duty by the management; that it was correct that thereafter, on the intervention of the Labour Inspector the workman had been taken back on duty with the management on 25.08.2006, however, as Masalchi; that it was wrong to suggest that the workman had been forced to do the work of dish washing when he had been taken back on duty; that it was correct that the workman had been working initially with the management as a steward; that it was correct that the post of masalchi is inferior to that of a steward.........;that it was correct that the workman had again reported for duty on 12.10.2006 along with medical fitness certificate; that it was wrong to suggest that the management had refused duty to the workman at the time when he reported for duty on 12.10.2006...........; that it was correct that D.I.D. No. 484/09 Page 58 out of 64 on17.10.2006 official from the Labour Department along with workman had come to the management for taking back the workman on duty; that it was wrong to suggest that the workman had not been taken back on duty. Vol. the workman had refused to perform the duty of masalchi offered to him by the management; that it was correct that the workman had not been taken back on his duty as steward with the management; that it was correct that the workman had not been taken back on his duty as steward with the management during the conciliation proceedings (emphasis supplied).
It is thus seen from the record that it has come on record by way of the testimony of the MW1 Sh. D.S.Randhawa, Manager of the management in his cross examination on behalf of the workman in management evidence that the workman had not been taken on duty by the management on 18.07.2006 when he had reported for duty as steward with the management with or without medical fitness certificate in his respect (though along with medical fitness certificate dated 17.07.2006 issued by the concerned hospital in his respect Ex.WW1/B as alleged by the workman) and then on 12.10.2006 when the workman had admittedly reported for his duties as steward with the management on the basis of a medical fitness certificate (dated 22.09.2006 issued by the concerned hospital in his respect D.I.D. No. 484/09 Page 59 out of 64 Ex.WW1/H Colly) necessitating the filing of appropriate complaints Exts.WW1/C, WW1/D, WW1/I and WW1/M on the part of the workman against the management to the concerned labour authority in this regard and the issuance of the reports of the concerned labour inspector in respect of the grievances of the workman against the management in his respect of non taking him back in his employment with the management as steward despite his having obtained the necessary medical fitness certificate from the concerned hospital in his respect (Exts.WW1/B and WW1/H Colly), on record and non payment of his dues/salary w.e.f. 18.07.2006 till 28.08.2006 on the part of the management to him, vide Exts.WW1/J and WW1/N respectively in their respect on the part of the concerned labour inspector, on record.
It is further seen from the record that the workman is not bound to accept the post of masalchi with the management despite his having obtained medical fitness certificate in his respect, as abovesaid, which post is admittedly inferior to the post of a steward to which the claimant/workman has been initially appointed with the management and to which he is accordingly entitled to in his service with the management.
In view of my above observation and findings, I find that the workman has been able to prove that his services have been D.I.D. No. 484/09 Page 60 out of 64 terminated on the part of the management on 18.07.2006/26.08.2006 as alleged by him. Admittedly the workman by virtue of being admittedly in the employment of the management w.e.f. 01.12.1995 as admitted by the management, on record, and the management having alleged, on record, that the services of the workman had not been terminated on its part and nor he is alleged to have abandoned his services with the management on the part of the management at any point of time prior to the date of the alleged termination of the services of the workman viz. 18.07.2006/26.08.2006 as alleged by the workman as also in view of the provisions of management Exts. WW1/M1 to WW1/M6, on record, it is seen from the record that the workman had completed 240 days of service in the year preceding the date of his alleged termination and accordingly is entitled to the protection of the provisions of Section 25F of the Industrial Disputes Act, 1947 (as amended upto date) as on the said dates which I find from the record have not been complied with on the part of the management in view of its stand of the workman being not fit to perform his duties as a steward with the management, as on the said dates and accordingly, the termination of the services of the workman on the part of the management on the dates alleged is held to be illegal.
D.I.D. No. 484/09 Page 61 out of 64 Issue no.3
The onus of proving of this issue was upon the management in respect of which I find from the record that the management has not led any evidence in respect of its contention that the workman is not fit to join the duties as a steward with the management to which post he has admittedly been initially appointed with the management and which he had been performing with the management prior to the date of his allegedly being not fit to join duty with the management as a steward and that no positive evidence has been led by the management in this regard against the workman either in the cross examination of the workman (WW1) on behalf of the management in workman evidence or in its management evidence, on record, and accordingly the instant issue is decided against the management and in favour of the workman.
Issue no.4.
It is seen from the record that it has been alleged by the workman in his cross examination on behalf of the management as WW1 in workman evidence that he is unemployed and that he had tried to search for a job at 23 places but could not find any; that he had tried to find job in a chickinrestaurant in Pandara Market and Moet Restaurant in Defence Colony Market on the post of a steward boy in writing but that he was unable to find any job; that it was D.I.D. No. 484/09 Page 62 out of 64 wrong to suggest that he was telling a lie or that he did not try to find job anywhere; that it was wrong to suggest that the job which he was doing with the management was easily available; that it was wrong to suggest that the aforesaid restaurants had denied him job of steward as he was unable to perform the same.
It is further seen from the record that the management has not alleged or led any evidence, on record, that the workman has been gainfully employed during the period with effect from the date of the alleged termination of his services with the management viz. 18.07.2006/26.08.2006 till the date of passing of the award, the onus of proving of which was admittedly upon the management.
It is further seen from the record that the workman cannot be said to be guilty of any undue delay in preferring his instant statement of claim in respect of the redressal of his grievances qua the alleged termination of his services on the part of the management on the dates alleged, in this court and accordingly, in view of my above, observations and findings, I find from the record has not exhibited any conduct, on record, which can be said to disentitle him to the relief of reinstatement and backwages. It is further seen from the record that it has nowhere been alleged that the workman has reached the age of superannuation or is anywhere near it.
In the facts and circumstances of the case as also in view of my D.I.D. No. 484/09 Page 63 out of 64 above observations and findings, it is felt appropriate that the relief of reinstatement in service, however, along with 50% of backwages and continuity of service be awarded to the workman against the management since it cannot be held that the workman has remained totally unemployed during the period with effect from the date of termination of his services on the part of the management as alleged till the date of passing of award.
The award is passed accordingly. Ahlmad is directed to send six copies of this Award to the appropriate Government. The file be consigned to the record room.
Announced in the open court on 30.11.2012 (Chandra Gupta) Presiding Officer Labour CourtX Karkardooma Courts, Delhi.
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