Delhi District Court
In Thecourtof Shrit.S. Kashyap : ... vs M/S Dhawan Engineering Works on 30 March, 2010
IN THECOURTOF SHRIT.S. KASHYAP : PRESIDING OFFICER : LABOURCOURTXIX : KARKARDOOMA COURTS : DELHI. LIR No. 317/08 (OLD NO. 296/06 AND NO.237/95 ) S/SH. BANSI BOHRA,N.HARI BANDHU,Y.KURMAYYA,K.KAMRAJ, SUBHASH RAM,AND RAM BILAS YADAV C/O GENERAL MAZDOOR LAL JHANDA UNION, B1/A, NATHU COLONY (EAST), 100 FT. ROAD, SHAHDARA DELHI93 ........CLAIMANT/WORKMAN Vs. M/S DHAWAN ENGINEERING WORKS, B14/1, JHILMIL TAHIRPUR INDL. AREA SHAHDARA, DELHI95 ....................MANAGEMENT Date of institution : 071095 Date of conclusion of arguments : 180310 Date of award : 300310 Ref. No. F.24 (4804)/93 Lab/2992530 dated 210995 AWARD (ORAL) 1.
The industrial dispute between claimants/workmen S/Sh. Bansi Bohra, N. Hari Bandhu, V. Kurmayya, K. Kamraj, Subhas Ram LIR No. 317/08 Page 1 of 32 pages and Ram Bilas Yadav and management of M/s Dhawan Engineering Works was referred by Secretary (Labour), Govt. of NCT of Delhi for adjudication in exercise of power conferred by section 10 (1) (c)and 12 (5) of Industrial Disputes Act 1947 (hereinafter referred as 'Act') read with Govt. of India, Ministry of Labour Notification No. S 11011/2/75/DK (IA) , dated 14 th April, 1975, to Labour Court No. I with following terms of reference :
``Whether the services of S/Sh. Bansi Bohra, N. Hari Bandhu, Y. Kurmayya, K. Kamraj, Subhash Ram and Ram Bilas Yadav have been terminated illegally and/or unjustifiably by the management and if so, to what relief are they entitled and what directions are necessary in this respect?
2. On service of courtnotice of reference, on behalf of the workmen, joint statement of claim by six workmen was filed giving the details of their employment, designation, period of service and date of joining in para one of the claim. All the workmen claimed that they had good record and there was no complaint against them. However, they have alleged that the management did not provide legal facilities and therefore the workmen decided to become members of the Union and when the management came to know LIR No. 317/08 Page 2 of 32 pages about this fact, the management tried to find fault with the workmen with a view to retrench them. It is submitted that the workmen S/Sh. Bansi Vohra, N. Haribandhu and Y. Kurmayya were terminated on 11592, whereas workman Sh. K. Kamraj was terminated on 3592, workman Sh. Subhash Ram was terminated on 11592 and RamVilas Yadav was terminated on 211192. However, it has been alleged by workman Sh. K. Kamraj that he was served with chargesheet dt. 20692, 28892, 301192 and when the labour inspector called the management on 13792 to take the workman back on duty, the management did not show any interest in the conciliation proceedings. Workman Ram Bilas Yadav has also alleged that his services were also terminated on the basis of alleged chargesheet dt. 211192. He was not allowed to enter the factory premises and was also deprived of right to appeal. It has been submitted that there were more than 300 workmen who worked with the management and on the complaint of the workmen, proceedings were pending before Conciliation Officer but the management did not cooperate in the proceedings. Therefore, the Govt. sent the reference to the Court. All the six workmen claimed that they were unemployed and the action of the management terminating their service was illegal and therefore they LIR No. 317/08 Page 3 of 32 pages were entitled for reinstatement in service with continuity with back wages as well as consequential benefits.
3. The management contested the claim by filing written statement taking the preliminary objections that the reference was bad as it was made mechanically and arbitrarily and without applying its mind and having made in the shape of a collective dispute purported to be one U/s 2(K) of the Industrial Disputes Act 1947; that the Trade Union which has been named in the reference order, has no locus standi and this court has no jurisdiction; that no prior demand was raised by the claimants and therefore neither there was any Industrial Disputes nor this Court has jurisdiction and the amended statement of claim was signed only by Ram Bilas Yadav and therefore no Industrial Dispute Award in respect of the remaining workman should be passed.
On merits, the details regarding the designation, period of employment etc. submitted on behalf of the workmen have been denied. According to the management Sh. Subhash was only casual labour engaged on daily wage basis and had settled his account in full and final and therefore there was no question of termination of his services. The claim of the Sh. Subhash Ram that he was working for two years with the management has been denied. The LIR No. 317/08 Page 4 of 32 pages allegation that the management was not providing the legal facilities and other allegations made by the workmen have been denied. With respect to workmen S/Sh. Bansi Bohra, Y. Kurmaiyya & N. Haribandhu it has been submitted that due to poor demand of natural rubber tubes on account of continuous recession in the market as well as tough competition from manufacturers of fine quality tubes made of butyle rubber, the management was forced to reduce the production proportionately and accordingly some of workmen including three workmen namely Bansi Bohra, Y Kurmaiyya and N. Haribandhu became surplus and were accordingly retrenched vide order dt. 11592. The retrenchment order were duly served on the claimants by UPC as well as Regd. AD and notice was also sent to the Secretary Labour, Delhi Govt. It is also submitted that one month notice pay and retrenchment compensation was also duly tendered on 11592 itself in cash which they refused to receive and thereafter it was sent to the claimants by money order on 11592. It has been claimed that when the market situation improved, the management sent notice on 8792 to three claimants inviting them to rejoin the service but none of them accepted. They were again invited on 5892 but they declined and therefore the management made alternate arrangement by LIR No. 317/08 Page 5 of 32 pages recruiting fresh employees. Regarding K. Kamraj, it has been submitted by management that he was absent from duty without leave and permission since 3692 and did not report for duty thereafter despite repeated letters. He was sent show cause notice dt. 26692 for his unauthorised absence from duty but he did not reply nor resumed duty and labour officer was also duly informed vide letter dt. 29692 and 71292. It is alleged that on 181192 he induced the other workmen standing at the gate to commit physical assault against the Partner Sh. Dhawan and called names to him. ``DHAWAN CHOR HAI. MARO SALE KO ETC.ETC.'' On 251192 at about 8.40 a.m. Sh. Kamraj alongwith his other colleagues came to the main gate of the factory without any valid cause and shouted the following worded slogans and hurled abuses against the Partner Sh. Dhawan: 'DHAWAN KA NASH HO, DHAWAN CHOR HAI. DHAWAN SALA KYA KARE GA. JUTA CHAPPAL SAAF KAREGA. GALI GALI MAIN SHOREHAI DHAWAN SALA CHORHAI,'' ETC. ETC. A domestic enquiry was conducted against him for the charges mentioned in chargesheet dt. 26692, 28892 and 301192 and Sh. Yogender Kumar Tyagi was appointed as Enquiry Officer and on the basis of the enquiry report, a show cause notice was also issued LIR No. 317/08 Page 6 of 32 pages to him but no reply was sent by the workman and action was taken as per law. Regarding Ram Bilas Yadav, it has been alleged that on 261092 he came for duty at 8.00 a.m. and before starting his work suddenly and without any ryme or reason made hue and cry that somebody had shutt off the valves of his press. On his complaint, the partner, Sh. Dhawan himself went to investigate and found that the said valves had been shutt off by Sh. Ram Bilas Yadav himself deliberately with bad and illintentions and subsequently on 21192 and 131192 the work and conduct of the workman was negligent, which caused financial loss to the management. He was also served with the chargesheet dt. 211192 and was dismissed vide order dated 25793. It has been claimed that the claim of the workman be rejected.
4. On behalf of the workmen rejoinder was filed.
5. On pleadings of the parties, the following issues were framed by my Ld. Predecessor on 26597:
1. Whether the reference is bad as alleged in para 1 of the preliminary objection in the W.S.?
2. Whether the claimant Subhash Ram left the services of his own by accepting full and final account, if so, its effect?
LIR No. 317/08 Page 7 of 32 pages
3. Whether claimants Bansi Vohra, N. Haribandhu and Y. Kurumaiya were retrenched as per law, if so, its effect on the reference?
4. Whether the management conducted improper and unfair enquiry in respect of the workmen K. Kamraj and Ram Vilas Yadav?
No other issue arose or pressed.
6. The then Ld Predecessor had treated the enquiry issue as preliminary and the parties were asked to lead evidence on the enquiry issue. The said issue has been disposed off in favour of the workman Sh. K. Kamraj vide order dt. 211209 holding that enquiry against Sh. K. Kamraj was vitiated and therefore was set aside. However, Sh. Ram Vilas had not appeared in the witness box and therefore no order on enquiry issue with respect to him could be passed.
7. Thereafter, the workmen were directed to lead evidence in support of their statement of claim on the remaining issues and Sh. K. Kamraj has appeared as WW1 and tendered his affidavit Ex. WW1/B, claimant Sh. Bansi Bohra appeared as WW2 and tendered his affidavit Ex. WW2/A and relied on documents Ex. WW2/1 to Ex. WW2/16, Claimant Sh. Y. Kurmaiyya appeared as WW3 and tendered LIR No. 317/08 Page 8 of 32 pages his affidavit Ex. WW3/A, claimant N. Haribandhu appeared as WW4 and tendered his affidavit Ex. WW4/A and claimant Sh. Subhash Ram appeared as WW5 and tendered his affidavit Ex. WW5/A and relied on documents Ex. WW5/1 to Ex. WW5/2, and workman's evidence was closed on 6210.
On behalf of the management MW1Vishvajeet Nerukar tendered his affidavit Ex. MW1/A who relied on documents Ex. MW1/1 to Ex. MW1/13. He could not produce the original Ex. MW1/12 and therefore prayed for deletion of this document. He also failed to produce originals of Ex. MW1/14 and Ex. MW1/15 as mentioned in his affidavit and therefore these documents were Marked MW1/14 and Mark MW1/15.
8. On 20210, MW1 failed to produce the summoned record. On an oral request made by Ld. AR for workman and after hearing the ARs for the parties, the typographical mistake in the order dt. 21 1209 on Enquiry Issue for substitution of Section 33 in place of Section 33A of the Industrial Dispute Act was allowed and it was also clarified that the management was at liberty to lead evidence as was prayed in the written statement which had inadvertently escaped notice of the court. Ld. AR for management had made a statement that subject to out come of the writ petition which LIR No. 317/08 Page 9 of 32 pages was under scrutiny before Hon'ble High Court he closed management's evidence. In between vide order 18210 the application for amendment moved on behalf of the management was dismissed with cost of Rs. 10,000/. The application for review of the order was also dismissed vide order dt. 20210 but the cost has not been paid by the management despite opportunity and therefore this cost has to be included in the cost of litigation at the time of passing final award.
9. I have heard the submissions made by Ld. AR for workman and gone through the written arguments filed on behalf of the management and my findings on the issues are as under:
10. ISSUE NO.1 The onus to prove this issue was not placed by my Ld. Predecessor on either party. However, the objection was taken by the management in the written statement as preliminary objection no.1 and therefore the onus was to be discharged by the management. In the written statement filed on behalf of the management, it has been submitted by Ld. AR that as per the copy supplied by the management only Sh. Ram Vilas Yadav has signed the statement of claim, and therefore claim in respect of others is deemed to have been given up. Hence, no dispute award in respect of S/Sh. Bansi Bohra, N. LIR No. 317/08 Page 10 of 32 pages Haribandu, Y. Kurmaiyya and K. Kamraj be passed. But there is no submission in the written arguments on the preliminary objection no. 1.
Ld. AR for workman, however, submitted that non signing the statement of claim is mere irregularity and claim is not liable to be disposed as No Dispute Award. He also submitted that except Sh. Ram Vilas Yadav, all remaining workmen have also appeared in the witness box and they had signed the original statement of claim and therefore it cannot be said that there was no claim on behalf of the other workmen.
In terms of provisions of Section 11 of the Industrial Disputes Act, the provisions of CPC are applicable on the proceedings and thus provisions of Order 6 Rule 14 CPC are also applicable. The amended claim has been signed by Ram Vilas Yadav, Bansi Bohra and K. Kamraj and H. Haribandhu and in authority reported as SARJU VS. BADRI, A 1939 N 242; ANANTHA RAM VS. ADDL. CIVIL JUDGE, 2001 (4) CCC 241 (ALL): 2001 LJ 2620; OM PRAKASH DIWEDIAVS. ASHALATA, 2002 (1) BOMBAY LR 843 (946) (BOMBAY) it was held that signing is merely a matter of procedure. So it is immaterial whether it was signed by him or some one else on plaintiff's behalf and therefore there was no merit in the LIR No. 317/08 Page 11 of 32 pages preliminary objection no. 1 taken by the management in the written statement.
Even though no issue was framed on preliminary objection no. 2 taken in the written statement by the management but in the written arguments, Ld. AR has submitted that all the claimants have different cause of action independent of each other. The reference can be in respect of only one Industrial Dispute. Multiple independent industrial disputes cannot be combined together under one reference. The reference is thus bad in law and this court has no jurisdiction to try the dispute. Ld. AR for workman however, has submitted that all the claimants/workmen were employed with the management and the management is also one against whom all the workmen have cause of action. The reference has been made by the appropriate Govt. and the management ought to have taken the objection before the Govt., the court has to decide to reference as it is.
It is admitted fact that all the workmen were employee of the management and they all had common cause of action against the management alleging that there services were illegally terminated by the management. The reference has been made by appropriate Govt., the Govt. of NCT, Delhi and the management was running at LIR No. 317/08 Page 12 of 32 pages B14, Zhilmil Tahirpur Indl. Area, Shahdara, Delhi and the workmen were represented by General Mazdoor Lal Jhanda Union at B/1 A, Nathu Colony (East), 100 Ft. Road, Shahdara, Delhi93. The reference has been made by appropriate Govt. to the Labour Court and in case the management was aggrieved with the reference, it was at liberty to assail the order of reference which it has not done. There is community of dispute and interest of the parties as all the workmen have common cause of action against the management. The contention that all the claimants have different cause of action, independent of each other is misplaced because all the workmen have alleged that the management had illegally terminated their services and therefore this court has jurisdiction to adjudicate the reference. They have signed the joined statement of claim. Workman Ram Vilas Yadav did not appear in the witness box at the stage of inquiry issue and also during post enquiry issue proceedings. Therefore, 'No Dispute Award' qua the claim of workman Sh. Ram Vilas Yadav has to be passed. However, it cannot be said that the reference was bad in terms of preliminary objection no. 1 or preliminary objection no.2 as pleaded by the management in the written statement. This issue is therefore, decided accordingly against the management and in favour of workmen. LIR No. 317/08 Page 13 of 32 pages
11. ISSUE NO.2 The onus to prove this issue was also not placed by my Ld. Predecessor on either party. However, the management had pleaded that the claimant Sh. Subhash Ram had left the service of his own by accepting full and final account and therefore the burden was to be discharged by the management. In the written arguments, Ld. AR for management has not stated anything specific except that Sh. Subhash Ram admitted in the crossexamination of being gainfully employed and making earnings. In the written arguments, there is no iota of submission of any payment made by management to Sh. Subhash Ram which was accepted by Sh. Subhash Ram in full and final.
MW1 Sh. Vishvajeet Nerukar in his affidavit Ex. MW1/A has testified that Sh. Subhash Ram was only a casual labour engaged on daily wages from time to time. Each time when he so worked with the management, he settled his account in full and final for such work done and left the employment. There is no question of termination of his services. He has relied on Ex. MW1/13, copy of letter dt. 10293 purported to have been written to the conciliation officer. Ld. AR for workman however, submitted that there is no merit in the submission because the management has failed to LIR No. 317/08 Page 14 of 32 pages produce the record despite direction of the court and instead of the entire record, the management has produced the attendance register/muster roll register only for one year. The management has claimed that he was a daily wager and onus to prove this fact was on the management only. According to him, the workman was a regular employee as he has worked for about two years with the management and was also issued the ESI Card. MW1 does not even remember the ESI code of the company and could not admit or deny whether the ESI Code of the company is 114581. He could not state anything about document Ex. WW5/X1(copy of ESI Card) filed by WW5 Sh. Subhash Ram on record pleading that he has no knowledge whether this document was issued by the management.
WW5 in his crossexamination has denied the suggestion that he was a daily wager and in reply to the suggestion given in the crossexamination, WW5 has stated that his wages used to be paid to him after end of the month and therefore he could not be said to be a daily wager.
The plea taken by the management is that Sh. Subhash Ram was a causal worker engaged on daily wages from time to time and each time he so worked for the management, he settled his LIR No. 317/08 Page 15 of 32 pages account in full and final for such work done and left the employment. However, the management has not produced any written contract nor management has disclosed the period during which Sh. Subhash Ram was employed and what was the duration of his employment. It is also not disclosed as to what was the rate of daily wages paid to him and on which date full and final payment was made to him. No receipt in this regard has been produced by the management. No suggestion was given to him (WW 5 Subhash Ram) that he worked only for 18 days as mentioned in Ex. MW1/13. The workman has proved on record the photocopy of ESI Card Ex. WW5/X1 with the employer code no. 114581 with Insurance No. 113909588 but MW1 could not deny this fact, taking the plea that he does not remember and therefore the testimony of WW5 Sh. Subhash Ram deserves to be believed. ESI Card is not normally issued by the management for a daily wager and even for a regular employee, the management delays the issuance of ESI Card for a considerably long period. WW5 in his affidavit Ex. WW5/A has testified that he had joined the employment on 12 1990 as Pressman and was terminated on 13592 and denied the suggestion in the crossexamination that he was a daily wager. His attendance used to be marked only at the gate and the attendance LIR No. 317/08 Page 16 of 32 pages card was sent inside where the attendance was marked and there was only one attendance register. He denied the suggestion that he was daily wager or that his attendance was separately marked. MW1 has failed to prove the attendance/muster roll register in respect of the employees despite direction of the court, except the register for one year and no record in respect of Sh. Subhash Ram was produced regarding his employment, attendance or payment of wages. The management has also not produced any receipt towards full and final payment made to him and there is no disclosure about the period for which he was engaged by the management.
MW 1 denied the suggestion that he did not produce the entire record because if he had produced the same, the contents of the claim made by the claimant would have been proved correct. The authority reported as AUTOMOBILE ASSOCIATION OF UPPER INDIA Vs. PO LABOUR COURT II, 2006, LLR 851, is fully applicable wherein Hon'ble Delhi High Court has held that ``an adverse inference may be drawn by court against the management for non production of record''.
Therefore, for non production of the muster roll/attendance LIR No. 317/08 Page 17 of 32 pages register by the management through MW1, an adverse inference against the management u/s 114 of Indian Evidence Act deserves to be drawn that the MW1 has not produced the record because had he produced the said record then contention of the workman Sh. Subhash Ram that he was a regular employee would have been confirmed. It is pertinent to mention that MW1 in his cross examination has also stated that he cannot say whether Sh. Subhash Ram had worked for continuous period of more than 240 days in a year. The authority relied by Ld. AR for management titled as U.P. STATE BRASSWARE CORPN. LTD. AND ANOTHER VS. UDAY NARAIN PANDEY (2006) 1 SCC 479; JAGBIR SINGH VS. HARYANA STATE AGRICULTURE MARKETING BOARD & ANR. 2009 LLR 1254 SCC, with due respect are not applicable. However, the authority reported as DIR, FISHERIES TERMINAL DIV VS. BHIKUBHAI MEGHAJIBHAI CHAVDA, 2009 (123) FLR 875 SC relied by Ld. AR for workman is fully applicable. There is no evidence that he is gainfully employed on regular basis. Therefore the testimony of WW5 deserves to be believed and accordingly it is held that claimant Sh. Subhash Ram had not left the service of his own by accepting full and final amount as pleaded by the management.
12. ISSUE NO.3 LIR No. 317/08 Page 18 of 32 pages Whether claimants Bansi Vohra, N. Haribandhu andY. Kurumaiyya were retrenched as per law, if so, its effect on the reference?
In this regard, Ld. AR for workman has submitted that admittedly all these three claimants Bansi Vohra, N. Haribandhu and Y. Kurmaiyya were regular employees of the management and according to the workmen their services were terminated by the management on 11592 whereas the management has taken the plea that due to poor demand of natural rubber tubes on account of continuous recession in the market as well as tough competition from manufacturers of fine quality tubes made of butyle rubber, the management was forced to reduce the production proportionately and accordingly some of workmen including three workmen namely s/Sh.Bansi Bohra, YKurmaiyya and N. Haribandhu became surplus and they were retrenched vide order dt. 11592. Ld. AR for workman has stated that the management has failed to prove that these workmen were lawfully retrenched as required U/s 25F and N of the I.D. Act, in as much as no seniority list has been proved on record to prove that the retrenchment of workmen was done by following the principles of 'last come first go'. The management has not proved on record the relevant balance LIR No. 317/08 Page 19 of 32 pages sheet of its accounts to substantiate the contention that there was any recession in the market and the management was forced to reduce production and workmen in question had become surplus. Moreover, the retrenchment compensation was never paid to the workmen and the money order receipt relied by the management cannot be treated a payment of the retrenchment dues to the workman because the dues were never offered to the workman physically/personally nor the amount was sent alongwith any letter and in case of payment through money order, the management ought to have received the AD Card bearing endorsement regarding payment to the workmen otherwise the money order itself would have been returned back and the management did not bother to obtain any certificate from the postal authority to prove that the payment sent through the money orders was actually made to the workmen.
Ld. AR for workman also added that the management was having more than 300 workmen working with it and therefore the management was required to comply the provisions of Section 25 N of the Act and was required to either give three months notice in writing indicating the reasons for retrenchment and the period of notice had expired, or the workmen had been paid three LIR No. 317/08 Page 20 of 32 pages month's wages in lieu of said notice period alongwith dues equivalent to 15 days average pay for every completed year of continuous service or any part thereof in excess of six months alongwith notice in the prescribed manner to the appropriate Govt. seeking prior permission but the management has neither sought any permission from the Govt. nor made payment of the required dues as per Section 25 N of the I.D. Act. and therefore the retrenchment of three workmen namely S/Sh. Bansi Bohra, Y Kurmaiyya and N. Haribandhu was illegal being violative of provisions of Section 25N of the Industrial Disputes Act and therefore the workmen were entitled for reinstatement alongwith back wages, continuity of service and consequential benefits. He has relied on authority reported as DIRECTOR, FISHERIES TERMINAL DIVISION VS. BHIKUBHAI MEGHAJIBHAI CHAVDA 2009 (123) FLR 875 SC. On behalf of the management, in the written arguments it was submitted by Ld. AR that due to shortage of work, these three claimants were retrenched from service. Notices were duly served on them. The retrenchment compensation and notice pay were also duly sent to them by money orders. Retrenchment notices and money order/dispatch receipts were duly proved by MW1 and the workmen admitted the retrenchment in the statement of claim and LIR No. 317/08 Page 21 of 32 pages MW1 also stated that money orders were not received back undelivered and the management could not do more than that and therefore Section 25F was duly complied. He has relied on authority GENERAL MANAGER HARYANA ROADWAYS VS. RUDHAN SINGH (2005) 5 SCC 591.
Statement of claim was filed by the workmen stating that more than 300 workers were employed by the management. In the written statement, the management had merely denied the said plea but has not disclosed the number of workmen employed by the management. The workmen Sh. K. Kamraj appeared as WW1, claimant Sh. Bansi Bohra appeared as WW2, Sh. Y. Kurmaiyya appeared as WW3, Sh. N. Haribandhu appeared as WW4 and Sh. Subhash Ram appeared as WW5 and in their testimonies through their respective affidavits have specifically stated that more than 300 workers were employed with the management. No suggestion was given to the witnesses in their crossexamination contrary to the said assertion made by the workmen regarding the number of workmen employed with the management. WW1 in his crossexamination has specifically stated that there were about 300 workmen present on Dharna out side the factory but no suggestion contrary to this assertion of the witness LIR No. 317/08 Page 22 of 32 pages was made in the crossexamination.
MW1 in his affidavit Ex. MW1/A has no where disclosed the number of workmen employed with the management at the relevant time nor he has asserted that less than 300 workmen were employed with the management and therefore the testimony of workmen to the effect that the management was having more than 300 workmen in its employment deserves to be believed, and therefore Sec. 25N of the Act was applicable.
As per Section 25N of the I.D. Act, no workman employed in any industrial establishment, who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until,
(a) the workman has been given three months' notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; and
(b) the prior permission of the appropriate Government or such authority as may be specified by that Government by notification in the Official Gazette has been obtained on an application made in this behalf.
13. The workman Sh. Bansi Bohra has pleaded in the statement of LIR No. 317/08 Page 23 of 32 pages claim and also testified through his affidavit Ex. WW1/A that he was in the service of the management for 7 years preceding 11592. The workman N. Haribandhu has pleaded in the statement of claim and also be testified in his affidavit Ex. WW4/A that he was in the service of the management for 8 years preceding 11592. The workman Y. Kurmaiyya has pleaded in the statement of claim and also testified in his affidavit Ex. WW3/A that he was in the service of the management for 7 years preceding 11592 and the management in the written statement has merely denied the pleas of the workmen but the management has no where clarified the period of employment of these workmen in the written statement. Although the management has pleaded that they were retrenched on 11592 but no suggestion was given to the claimants in their crossexamination contrary to what was pleaded by them with respect to the period of employment, designation and wages and therefore their testimony in this regard have to be believed and as such it is proved on record that each of these workman was employed with the management for more than one year from the date of alleged retrenchment. Therefore, management was bound to comply the provisions of Section 25 N and to follow the condition precedent before retrenching the said workmen. Ld. LIR No. 317/08 Page 24 of 32 pages AR for workman has relied the authority UTTRANCHAL FOREST DEVELOPMENT CORP. AND ANOTHER VS. JABAR SINGH AND OTHERS, 2007 (113) FLR 1 SC. The management has neither pleaded nor proved on record that it had approached the appropriate Govt. for any such permission and permission was obtained. The management has failed to prove on record that the management was facing any recession in the market or that only workmen S/Sh. Bansi Bohra, YKurmaiyya and N. Haribandhu have become surplus and if so how. Admittedly, no payment was made by the management to these workmen on or before 11592 at the time, they were allegedly retrenched by the management. MW1 through his affidavit Ex. MW1/A has testified that these workmen were retrenched vide letter dt. 11592 but he has failed to prove on record that the said letter was actually delivered to the workmen. He has not even stated that the said letter was pasted on the notice board of the management office. In his testimony through his affidavit Ex. MW1/A, he has not even claimed that the retrenchment compensation alongwith other dues was paid to the workmen on 11592. He has also not pleaded that the retrenchment compensation and dues were offered or refused by the workmen. According to him notice of retrenchment was sent to LIR No. 317/08 Page 25 of 32 pages the Secretary Labour Ex. MW1/7 which is not the requirement of law because for compliance of Section 25 N of the I.D. Act, the management was required to seek prior permission from appropriate Govt. which was not done by the management. Although, postal receipts, photocopies of the money order dispatch Ex. MW1/4 to Ex. MW1/6 have been relied by the management's witness MW1 but he has failed to prove on record either actual delivery/payment to the workmen through the money orders or return of any acknowledgment bearing endorsement that the payment has been made to the workman/addressee through the money order. It is common knowledge that whenever any payment is sent to a person through money order, in token of the payment of money, the Postman obtains signatures of the addressee along with acknowledgment/endorsement that the addressee has received the amount and in case the amount is not received by the addressee, the money order card is returned back with the endorsement that the addressee was not available or refused. MW1 in his testimony has admitted that the management has not received back any AD Card/money order form and therefore it was incumbent upon the management to obtain appropriate certificate from the postal authorities that the money sent through LIR No. 317/08 Page 26 of 32 pages money orders through postal receipts Ex. MW1/4 to Ex. MW1/6 have actually been paid to the addressee but no such certificate have been proved by the management on record and therefore no presumption can be drawn that the payment allegedly sent by the management through Ex. MW1/4 to Ex. MW1/6 was actually made to the workmen and therefore I am of the considered view that the management has failed to prove on record that the management has duly retrenched the workmen S/ Sh. Bansi Bohra, N. Haribandhu and Y. Kurmaiyya and therefore the effect thereof shall be that these workmen shall be deemed to be in service and entitled for reinstatement with back wages, continuity of service and to the legal benefits as per the law.
14. ISSUE NO.4 This issue was already disposed off vide order dt. 211209 whereby the enquiry against Sh. K. Kamraj has been held to be vitiated and therefore was set aside. However, Sh. Ram Vilas had not appeared in the witness box and therefore no order on enquiry issue with respect to him could be passed .
15. With due respect, it is pertinent to mention that My Ld. Predecessor failed to frame any issue regarding relief. However for proper adjudication of a dispute/reference, the framing of such an LIR No. 317/08 Page 27 of 32 pages issue was necessary and no prejudice shall be caused to either party if such an issue is now framed and disposed. The issue is accordingly framed as under: To what relief the workmen are entitled and what directions are necessary in this regard? Ld. AR for workman has submitted that the management has actually not been closed but was running its operation at Baddi, Himachal Pradesh and therefore he submitted that all the workmen except Sh. Ram Vilas Yadav are entitled for reinstatement alongwith back wages, continuity of service and consequential benefits and orders may be passed accordingly. However, Ld. AR for management has submitted that the management has closed its factory from 30 1196 following the directive of the Hon'ble Supreme Court, and notices were also received from various Government Authorities including the Govt. of NCT of Delhi, the Delhi Police, the Factory Licensing Department, the Electricity and water Department of MCD to enforce closure. Copies of some of these orders including the Judgment of the Hon'ble Supreme Court have already been placed on record. Being a judgment and Government Notification/Orders no formal proof is required, yet MW1 has proved the same during his testimony. A vague suggestion was LIR No. 317/08 Page 28 of 32 pages given that factory is established in U.P. and Baddi which has been denied by MW1. No evidence in rebuttal was adduced by the workmen to prove that the management had restarted the factories in U.P. or in Baddi and therefore there was no question of reinstatement of the workmen by the management because the reinstatement is an impossible relief, in view of non existence of the factory. He also submitted that Sh. Bansi Bohra admits that he was carrying out agricultural activities and growing Paddy in his native place. Therefore, he is gainfully employed. He also submitted that workman Subhash Ram admits in his crossexamination that he was also in gainful employment and was making earning and therefore he was not entitled for any back wages, and back wages are not automatic consequences of illegal termination. Ld. AR for management in the written arguments has also submitted that presuming without admitting that the terminations are illegal, only a reasonable amount of compensation can be awarded. He has relied on authorities K.M. INDUSTRIES VS. KARAN KUMAR 2009 LLR 1068 AND KISHAN LAL & SONS VS. GOVT. OF NCT OF DELHI & ORS. 2007 LLR 976.
16. Vide order dt. 211209, it was held that the enquiry against Sh. K. Kamraj was vitiated and was set aside and as per my findings LIR No. 317/08 Page 29 of 32 pages on Issue no.1, claimant Subhash Ram had not left the services of his own and had not received full and final amount. As per issue no. 3 it has been held that the retrenchment of claimants S/Sh. Bansi Bohra, N. Haribandhu and Y. Kurmaiyya by the management was in violation of provision of Section 25N of the Act and therefore illegal. They were entitled to be reinstated. It has also come in evidence that the management had sent message to the workmen for resumption of duty without sending any official communication and the workman also reported for duty but they were not allowed to resume duty and they were sent back from outside the factory gate. Even though, it has been pleaded by the management and testified by MW1 through his affidavit Ex. MW1/A that the management has closed its factory on 301196. MW1 denied the suggestion that the management has not been closed but was still running as same has been shifted at Ghaziabad (U.P.) and in Baddi (H.P.). It is pertinent to mention that the management had filed the amended written statement on 23 499 but the fact of closure of the factory on 301196 was not incorporated in the amened written statement. All the workmen witnesses were already examined and crossexamined but no suggestion was given to any of the workman that the LIR No. 317/08 Page 30 of 32 pages management/factory was closed on 301196 and an effort was made to get the written statement amended on 19210 to incorporate plea of closure of the management, the said application was dismissed by this court with a cost of Rs. 10,000/ on 18210. The testimony of MW 1 regarding closure of management at Delhi and not running at Gaziabad (U.P.) & Baddi (H.P.) is beyond pleadings. It has been suggested to MW1 in the crossexamination that the management was still running, having shifted in Ghaziabad (U.P.) and in Baddi (H.P.). Therefore even if under orders of Hon'ble Supreme Court, the operation of the management have been closed at Delhi, it is presumed that the management was running its operation at Ghaziabad (U.P.) and in Baddi (H.P.) and therefore all the workmen except Sh. Ram Vilas Yadav are entitled for reinstatement. There is no evidence that workmen were gainfully employed on regular basis.
17. I have carefully gone through the authorities relied by Ld. AR for management regarding the back wages and I am also conscious of the fact that delay has been caused in disposal of the reference. Therefore, in my considered view it will be appropriate if the management is directed to pay 60% of back wages to each workman namely S/ Sh. K. Kamraj, Subhash Ram, Bansi Bohra, N. LIR No. 317/08 Page 31 of 32 pages Haribandhu and Y. Kurmaiyya and to reinstate them with continuity of service and consequential benefits within a period of 30 days from the date of publication of the award, failing which the management shall have to pay interest @ 12% P.A. till the date of actual payment. Management shall also pay the cost of Rs. 10,000/ imposed on 18210 and past cost of Rs 2000/ imposed vide order dated 29.01.10 which has not been paid till date. No Dispute Award is passed with respect to RamVilas.
Reference accordingly stands answered. Copies of award be sent for publication and case file be consigned to Record Room. Announced in the open court.
Date : 30 TH MARCH, 2010 (T. S. KASHYAP) PRESIDING OFFICER,LABOUR COURTXIX, KARKARDOOMA COURTS,DELHI LIR No. 317/08 Page 32 of 32 pages