Delhi District Court
Jatashankar S/O. Sh. Ramai Ram vs M/S. Kenmore Vikas (India) Private ... on 30 April, 2015
Jatashankar Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 351/10
BEFORE LABOUR COURT - XI: KARKARDOOMA COURTS: DELHI
PRESIDING OFFICER: Mr. ANAND SWAROOP AGGARWAL
(Delhi Higher Judicial Service)
(Additional District & Sessions Judge, Delhi)
REFERENCE CASE (ID) NO. 351/10
UNIQUE CASE IDENTIFICATION NO. 02402C0202082010
In the matter of:
Jatashankar s/o. Sh. Ramai Ram,
R/o. Village Naraina, Post Hargarh Bazar,
District Mirzapur, U.P.
C/o. Rashtriya Mazdoor Sangh Delhi Pradesh,
52C, Okhla Industrial Area PhaseIII, New Delhi110020.
..... Workman / Claimant
Vs.
M/s. Kenmore Vikas (India) Private Limited,
12A, Shivaji Marg, New Delhi110015 ........ Management
Date of institution : 19.07.2010
Date of reserving for award : 23.03.2015
Date of award : 30.04.2015
AWARD:
1.TERMS OF REFERENCE Vide Order No. F3(418)/Ref./WD/LAB/57 dated 06/07/10 Deputy Labour Commissioner (West District), Labour Department, Government of N.C.T. of Delhi, New Delhi 110015 referred following industrial dispute between workman Jatashankar S/o. Sh. Ramai Ram, c/o. Rashtriya Mazdoor Sangh Delhi Pradesh, 52C, Okhla Industrial Area PhaseIII, New Delhi 110020 and management of M/s. Kenmore Vikas (India) Private Limited, 12A, Shivaji Marg, New Delhi110015 u/s. 10(1) (c) and 12(5) of the Industrial Disputes Act, 1947 vide Govt. of NCT of Delhi, Labour Department Notification No. F.1/31/616/Estt/2008/7458 dated 03.03.2009 for adjudication by this Court: Page No. 1 of 23 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Jatashankar Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 351/10 ''Whether the relationship of employer employee ever existed between the management and Sh. Jatashankar S/o Sh. Ramai Ram and if so whether his services have been terminated illegally by the management; and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. CASE OF THE WORKMAN AS PLEADED IN THE STATEMENT OF CLAIM
(i) The management is running its business in the name and style of M/s. Kenmore Vikas (India) Private Limited and is having its office at 12A, Shivaji Marg, New Delhi
- 110015 and Plot No. 4, 20th Mile Stone, Mathura Road, Faridabad - 121006, Haryana (India).
(ii) Workman was employed with management as a 'Mig Welder' since 28.03.2000 and was drawing monthly wages of Rs.5000/ per month as basic salary.
(iii) Workman was appointed by management on 27.03.2000 and on 28.03.2000 workman was sent by the management at M/s. Kenmore Vikas (India) Pvt. Ltd., Plot No. 25, Mathura Road, Faridabad, Haryana and workman worked there. Thereafter, workman was shifted at Plot No. 49, DLF, Faridabad, Haryana and after sometime management shifted its works at Plot No. 4, 20th Mile Stone, Mathura Road, Faridabad
- 121006, Haryana (India).
(iv) Workman had been in the employment of management since long and was performing his duties to the entire satisfaction of management and never gave any chance of complaint to management.
(v) No appointment letter was issued to workman and his services are also not properly maintained by the management (sic). Management is also not providing the other legal facilities to workman as granted under different labour laws and, even, Page No. 2 of 23 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Jatashankar Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 351/10 workman was being paid wages less than the minimum rate affixed by Government.
(vi) Workman had been demanding the legal facilities from the management but no heed was paid towards his demands and, rather, the management got annoyed and started to victimize the workman.
(vii) Workman made complaint to the different department (sic) and the labour inspector as well as concerned persons of other department (sic) visited the establishment and found the complaint of workman to be correct but inspite of best efforts made by persons of different department (sic), management did not provide the legal facilities to workman.
(viii) Workman was doing his duty sincerely and with full devotion to his duty and never gave any chance of complaint to the management.
(ix) Management terminated the workman on 20.07.2009 from his services with malafide and dishonest intention without issuing any notice or chargesheet and without holding any enquiry and did not give the salary for the month of June and July 2009.
(x) Management were (sic) taking the duty from the workman four hours extra daily as overtime with an assurance to pay the amount in (sic) double rate but they did not pay the single penny of the said overtime and, when the workman demanded his overtime money, management insulted the workman and abused filthily and never gave bonus to him.
(xi) On 27.07.2009, when workman requested the management to pay the salary for the months of June & July 2009 and overtime charges etc., management got annoyed Page No. 3 of 23 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Jatashankar Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 351/10 and abused him filthily and lateron got beaten the workman from its interested employees of gunda nature and, thereafter, the management threw out the workman from the factory premises with the threat to be killed, if workman approached the management again for his wages and dues etc.
(xii) The action of management in terminating the services of workman is illegal, unjustified, unlawful and malafide under the colourable exercise of power.
(xiii) No retrenchment compensation was either offered or paid to the workman at that time which is a condition precedent as per provisions, hence the order of management is void, inoperative and bad in law.
(xiv) Workman sent demand notice dated 20.08.2009 to the management through RegisteredAD through Labour Union for his reinstatement but, inspite of the receipt of the said demand notice, workman was not taken back on duty nor management replied the notice nor made any payment.
(xv) Thereafter workman filed his claim before Conciliation Officer, Karampura, New Delhi 110062 and as per complaint of workman Conciliation Officer called the management in his office for the settlement of dispute but the management could not be settled (sic) and ultimately the dispute was referred to this Court for adjudication. (xvi) A regular dispute was raised by workman before Conciliation Officer who initiated conciliation proceedings in the matter but due to noncooperative attitude of management no settlement could be reached and conciliation proceedings failed. Hence this reference.
(xvii) Workman is unemployed till date inspite of best efforts made by him.
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With these averments workman prayed for an award in favour of workman for his reinstatement with full back wages, earned wages for the month of June & July 2009 with continuity of service alongwith all consequential benefits in the interest of justice.
3. STAND OF MANAGEMENT AS PLEADED IN WRITTEN STATEMENT OF DEFENCE PRELIMINARY OBJECTIONS Management took certain preliminary objections such as that (i) present reference is untenable under law as government of Delhi has no territorial jurisdiction to refer the present case; (ii) there exist no relationship as employee and employer between the parties; (iii) the present reference is untenable for nonjoinder and mis joinder of necessary parties; (iv) no cause of action has ever arisen at Delhi, as such, this Court has no territorial jurisdiction to entertain present case; (v) there exist no industrial dispute as defined u/s. 2A of the Industrial Disputes Act, 1947 as claimant never made any demand to management prior to moving to the Conciliation Authorities; (vi) the claimant has not enclosed any document alongwith the statement of claim, as such, the present statement of claim is liable to be dismissed; (vii) the statement of claim is neither verified nor supported by any affidavit, as such, the same is liable to be dismissed and (viii) claimant has concealed material facts in the statementofclaim by not disclosing the name of his immediate employer and place of work, as such, statementofclaim is liable to be rejected.
ON MERITS Management, while denying the case as pleaded by workman in the statement ofclaim in toto, pleaded that it is correct that management is having the registered office at Shivaji Marg and works at Plot No.4, 20th Miles Stone, Mathura Road, Page No. 5 of 23 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Jatashankar Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 351/10 Faridabad. Management denied the averment of workman regarding his appointment by management and pleaded that as a matter of fact there exist no relationship as employee and employer between the claimant and management. Management being a labour oriented company has to engage labour through different contractors. The management has obtained Registration Certificate from the Government of Haryana. Management enclosed photocopy of Registration Certificate as AnnexureA. Management also pleaded that date of appointment and wages are matter of record of concerned contractor under whom claimant was working. Claimant should disclose the name of the contractor under whom claimant was working. Management also relied upon relevant ESI and PF Contribution and Wages Record of M/s. Pivot Multifar India Services Pvt. Ltd., B223, Nehru Ground, Faridabad as Annexure - B - ESI Returns (colly.) of M/s. Pivot Multifar Industries Services Pvt. Ltd.; Annexure - C - PF - Returns (colly.) of M/s. Pivot Multifar Industries Services Pvt. Ltd.; Annexure - D - Wages Register of M/s. Pivot Multifar Industries Services Pvt. Ltd. Management used to engage labourer under the Contract Labour (Regulation and Abolition) Act, 1970 and the claimant has not submitted his better particulars so that his actual employer can be recognized. However, management enclosed with WS relevant record of the contractors under the above stated Act as Annexure - A - Registration Certificate of M/s. Kenmore Vikas India Pvt. Ltd. under section 7 (2) of the Contract Labour (Regulation and Abolition) Act, 1970 and rules made there under; Annexure - B - ESI Returns (colly.) of M/s. Pivot Multifar Industries Services Pvt. Ltd.; Annexure - C - PF
- Returns (colly.) of M/s. Pivot Multifar Industries Services Pvt. Ltd.; Annexure - D - Wages Register of M/s. Pivot Multifar Industries Services Pvt. Ltd.. Management is a law abiding company and each and every statutory provisions are complied with. Management also pleaded that it did not get any intimation from the department of Page No. 6 of 23 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Jatashankar Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 351/10 labour except the demand notice which was duly replied by management. Management further relied upon reply to Conciliation Officer as Annexure - E - Reply to Conciliation Officer. Since there existed no relationship between claimant and management as employee and employer, the question of termination on 20.07.2009 and withholding of salary does not arise. Averment of workman regarding overtime work were also denied by management. Management also denied the averments of workman regarding workman having been abused / beaten up / thrown out of factory. Management did not receive any demand notice dated 20.08.2009 allegedly sent through Registered - AD post sent by the claimant. Averment of workman regarding conciliation proceeding are matter of record. At last management preyed that claim statement of claimant my kindly be dismissed with heavy cost.
4. REJOINDER The workman filed rejoinder to the written statement of management denying the stand taken by the management and reaffirming the averments made by him the StatementofClaim.
5. ISSUES Vide order dated 14.11.2011, ld. predecessor of this Court framed following issues :
(i) Whether this court has no territorial jurisdiction to try this case?OPM
(ii) Whether there exists any relationship of employer and employee between the Management and the workman? OPM (changed as OPW vide order dated 30.08.2014)
(iii) As per terms of reference.
(iv) Relief, if any.
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6. EVIDENCE
Workman appeared in witness box as WW1 Mr. Jatashankar. Workman relied upon documents: Ex.WW1/1 to Ex.WW1/3 - Movement Orders; Ex.WW1/4 - Delivery Challan No. 843 dated 04.10.2002; Ex.WW1/5 - Portion of letter head of management showing the company's detail; Ex.WW1/6 (colly.) Movement Orders; Ex.WW1/7 - Gate Passes; Ex.WW1/8 - Leave application dated 11.10.2005; Ex.WW1/9 and Ex.WW1/10 - Copy of Inland Letters addressed to workman. Workman in his examinationinchief deposed that workman has filed only the photocopies of abovesaid documents. Ld. counsel for management objected to on the mode of proof and documents being photocopies. Workman in his cross - examination was confronted with Ex.WW1/X1 - Wages Register & Pay Slip of M/s. Pivot Multifar Industrial Services Pvt. Ltd. for the month of May 2009. WE was closed on 15.07.2013 by ld. ARW by submitting that no other witness is to be examined by workman.
Management examined MW1 Mr. Chandra Shekhar, Manager HR Administration; MW2 Mr. Prem Chand, SSSA, Regional PF Commissioner, Sector15A, Faridabad, Haryana and MW3 Mr. Anirudh Narayan, Assistant, Branch Office, ESIC, NIT, Faridabad, Haryana. Management relied upon documents namely Ex.MW1/1 to Ex.MW1/5 - Certificates of Registration u/s. 6 of Contract Labour (Regulation & Abolition) Act, 1970; Ex.MW1/6 to Ex.MW1/16 - Agreements with Contractor; Ex.MW1/17 to Ex.MW1/47 - EPF & ESI Returns of Management; Ex.MW2/1 to Ex.MW2/9 - Form 6A from PF Department, Faridabad for the period from March 2000 to February 2009 for M/s. Pivot Multifar Industries Services Pvt. Ltd.; Ex.MW2/10 - Ledger; Ex.MW2/11 (colly. 2 Pages) - Statement of Account; Ex.MW2/12 - Copy of Debit Report of State Bank of India; Ex.MW2/13 - Status Report (EPFO) of workman; Ex.MW3/1 (colly. 2 pages) - ESIC Return from Page No. 8 of 23 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Jatashankar Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 351/10 01.10.2007 to 31.03.2008; Ex.MW3/2 (colly. 2 pages) - ESIC Return from 01.04.2008 to 30.09.2008; Ex.MW3/3 (colly. 2 pages) - ESIC Return from 01.10.2008 to 31.03.2009 and Ex. MW3/4 (colly. 3 pages) - ESIC Return from 01.04.2009 to 30.09.2009. Ex.MW3/1 to Ex. MW3/4 belongs to M/s. Pivot Multifar Industrial Services Pvt. Limited whose code no. is 13/17563100. ME was closed on 03.05.2014 by ld. counsel for management.
7. ARGUMENTS I have heard Mr. Y. B. Singh, ARW and Mr. Jagbeer Singh Bhadana, Adv. for management. Ld. AR for workman has filed written submissions and relied upon case laws reported as (i) Gangadhar Bajpai and others Vs. Indian Oil Corporation and others 2010 (124) FLR 316; (ii) Chet Ram Vs. Presiding Officer, Industrial Tribunal - Cum - Labour Court - 1 and another 2010 (127) FLR 379; (iii) State Bank of Bikaner & Jaipur Vs. Om Prakash Sharma 2006 (109) FLR 1203; (iv) Union of India and another Vs. Major Bahadur Singh 2006 (108) FLR 146; (v) Assistant Engineer, Rajasthan Vs. Ram Charan 2006 (109) FLR 1207; (vi) Triveni Sheet Glass Works Ltd. Vs. State of U. P. and others 2006 (108) FLR 655 (vii) Bajaj Tempo Limited Vs. Employees' State Insurance Corporation 2006 (110) FLR 461; (viii) Asish Dey Chowdhury and others Vs. State of West Bengal and others 2014 (141) FLR 1101; (ix) Bhogpur Cooperative Sugar Mills Ltd. Vs. Harmesh Kumar 2006 (111) FLR 1202; (x) Management of M/s. Hewlett Packard Global Soft Pvt. Ltd. Vs. K. L. J. A. Kiran Babu 2014 (142) FLR 757; (xi) Kanpur Electricity Supply Company Limited Vs. Shamim Mirza (2009) 1 Supreme Court Cases 20; (xii) Raj Kumar Jaiswal Vs. Rangi International Pvt. Ltd. MANU / DE / 2859 / 2009 (xiii) State of Punjab and others Vs. Rafiq Masih (White Washer) 2014 (142) FLR 638; (xiv) Sh. Mahipal Singh Vs. Page No. 9 of 23 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Jatashankar Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 351/10 Presiding Officer, Industrial Tribunal - III and Ors. MANU / DE / 1408 / 2010 and (xv) Hira Lal Patni Vs. Sri Kali Nath A.I.R. 1962 Supreme Court 199.
Ld. counsel for management has filed written submissions and relied upon case laws reported as (i) Angile Insulations Vs. Davy Ashmore India Ltd. and Another (1995) 4 Supreme Court Cases 153; (ii) Rajasthan State Electricity Board Vs. Universal Petrol Chemical Limited (2009) 3 Supreme Court Cases 107; (iii) National Textile Corpn. Ltd. and others Vs. M/s. Haribox Swalram and others AIR 2004 Supreme Court 1998; (iv) International Airport Authority of India Vs. International Air Cargo Workers' Union & Anr. 2009 LLR 923; (v) Air India Limited Vs. Jagesh Dutt Sharma & Ors. 2007 LLR 23; (vi) General Manager (OSD), Bengal Nagpur Cotton Mills, Rajnandgaon Vs. Bharat Lal & Anr. 2011 LLR 113; (vii) Chander Sain and others Vs. J. B. Garments 2009 (122) FLR 359; (viii) Ram Singh and others Vs. Union Territory, Chandigarh and others 2003 (99) FLR 1064; (ix) Anand Sawrup Data Vs. Punjab National Bank & Ors. 1997 (2) Civil Court Cases 44 (P&H); (x) Cement Corporation of India Ltd. Vs. Presiding Officer, Labour CourtCumIndustrial Tribunal, Hisar & Ors. 2010 LLR 704; (xi) New Delhi General Mazdoor Union & Others Vs. Standing Conference of Public Enterprises and another 1991 LLR 516; (xii) Charan Singh Vs. Presiding Officer, Industrial Tribunal - Cum - Labour Court - II, Gurgaon and Another 2014 LLR 747; (xiii) Chander Sain and others Vs. J. B. Garments 2009 (122) FLR 359; (xiv) Sunil B. Waghela Vs. M/s. Juhu Vile Parle Gymkhana Club and others 2002 LLR 1206; (xv) Bombay Hospital Trust and another Vs. Dr. Shailesh Hathi and another 2006 LLR 992; (xvi) Ravindra Baburao Ambolkar Vs. Gujarat Tea Canteen and another 1996 LLR 40; (xvii) Florence Joel Vs. Mater Dei School 2005 (3) SLR 643; (xviii) Ashok Leyland Ltd. Vs. Government of Tamil Nadu & others 1992 (64) FLR 755 (xix) Nazir Ahmed Vs. A. Ramachandran and another 2000 Page No. 10 of 23 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Jatashankar Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 351/10 (4) L. L. N. 948; (xx) Mahindra and Mahindra Vs. The Presiding Officer and another 2012 SCT (4) 345; (xxi) North East Karnataka Road Transport Corporation Vs. M. Nagangouda 2007 (1) L. L. N. 582; (xxii) Kendriya Vidyalaya Sanghathan and Anr. Vs. S. C. Sharma 2005 LLR 275 and (xxiii) Municipal Council, Sujanpur Vs. Surinder Kumar 2006 (3) L. L. N. 806.
Material available on judicial file perused very carefully. I have given a thoughtful consideration to the facts and circumstances of this case as they arise on the basis of material available on judicial file.
8. My ISSUEWISE findings are as under: ISSUE No. 1:
Whether this court has no territorial jurisdiction to try this case?OPM Vide order dated 23.03.2015 ld. counsel for management submitted that he is not pressing contentions of the management regarding this Court not having territorial jurisdiction to try this case and this Court may proceed with the assumption that this Court is having territorial jurisdiction to try this case. Further it may also be noted that in this case admittedly management is having its registered office at 12A, Shivaji Marg, New Delhi and reference under section 10 (1) (C) and 12 (5) of the Industrial Disputes Act, 1947 has been made by Dy. Labour Commissioner (West - District), Labour Department, Govt. of NCT of Delhi to decide the industrial dispute as mentioned in the first para of this award. Being guided by the case laws reported as Raj Kumar Jaiswal Vs. Rangi International Pvt. Ltd. (supra) and Sh. Mahipal Singh Vs. Presiding Officer, Industrial Tribunal - III and Ors. (supra), undoubtedly, this Court can be said to be having territorial jurisdiction to decide the reference in hand. Issue is accordingly decided against the management.
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ISSUE No. 2
Whether there exists any relationship of employer and employee between the Management and the workman? OPM (changed as OPW vide order dated 30.08.2014) ISSUE No. 3: As per terms of reference (''Whether the relationship of employer employee ever existed between the management and Sh. Jatashankar S/o Sh. Ramai Ram and if so whether his services have been terminated illegally by the management; and if so, to what relief is he entitled and what directions are necessary in this respect?") Here as per workman, workman was employed with management as 'Mig Welder' since 28.03.2000 and workman was drawing monthly wages of Rs.5000/ per month as basic salary. Further workman has alleged that management terminated his services on 20.07.2009 illegally and also did not pay salary for the month of June 2009 and July 2009. On the other hand, in pith and substance, stand of management is that there existed no relationship of employeremployee between the management and the workman. As per management, management used to engage labourer under the Contract Labour (Regulation & Abolition) Act, 1970 and workman was employed by M/s. Pivot Multifar Industries Services Pvt. Ltd. with whom management was having agreement for providing of services of manpower. Management examined MW2 Mr. Prem Chand and MW3 Mr. Anirudh Narayan from PF & ESIC Departments, respectively, who produced concerned records to show that workman Jata Shankar was employed by / with M/s. Pivot Multifar Industries Services Pvt. Ltd. NOW IT IS FOR THIS COURT TO DECIDE THE CONTROVERSY / ISSUE AS RAISED HEREIN ABOVE. It is a settled propositions of law that this controversy / issue is to be decided by this Court on the touchstone of principle of preponderance of probabilities keeping in mind the totality of facts and circumstances of this case as they are made out on the basis of entire material available on judicial file. Generally speaking it is a settled Page No. 12 of 23 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Jatashankar Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 351/10 proposition of law that initial onus to show that there existed relationship of employer employee between the management and workman is on the workman and, unless, workman discharges this initial onus by bringing on record requisite evidence, weaknesses in the defence as setup by the management in the WS does not in any way benefit the workman. As the facts suggests here undisputedly management availed the services of workman but allegedly through M/s. Pivot Multifar Industries Services Pvt. Ltd. in total compliance with provisions of the Contract Labour (Regulation & Abolition) Act, 1970. Here, when management admittedly availed the services of workman but allegedly through M/s. Pivot Multifar Industries Services Pvt. Ltd. in total compliance with provisions of the Contract Labour (Regulation & Abolition) Act, 1970 and management is coming up with the positive stand / defence, management is equally bound to establish on judicial file by leading cogent and convincing evidence the correctness / truthfulness of the stand taken by the management in the WS. In the facts and circumstances of this case, failure on the part of the management to prove the defence / stand taken by it in the WS may lead this Court to conclude that quite possibly the case as pleaded by workman in the statementofclaim is true.
Workman in his cross - examination has been made to depose as under: "I do not know the complete name of the person appointing me in the management at Delhi. (Vol he was summoned Mr. Jain and at that time I had come for the first time to Delhi from my native village Naraina, Dist. Mirzapur, PS Jigna, UP.) I do not have any documentary proof regarding my appointment in Delhi.
Qus. It is put to you that you were appointed at Faridabad where the Factory exists.
Ans. I had firstly visited the Head Office at Shivaji Marg, on the road of Dhaula Juan in Delhi and I was asked to visit the factory at Faridabad and I had accordingly joined the factory at Faridabad.
Court Qus. Kindly clarify as to what exactly had happened in the Head Page No. 13 of 23 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Jatashankar Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 351/10 Office in Delhi as stated by you?
Ans. I had visited the Head Office at Delhi. Security guard had taken me in side the office where I had talks with Mr. Jain who had told me to visit the factory at Faridabad whose address was informed to me in writing. No appointment letter was given to me at Delhi. Only talks that had taken place with Mr. Jain were to the effect that I was given the address of Faridabad Factory and told to contact Mr. Navneet at Faridabad who was as told to me supposed to provide me the job.
I do not possess the note regarding the address of the factory as it was given by me to Mr. Navneet. My ESI and EPF was deducted. I can not produce EPF slip as the same was never given to me by the management. My ESI card has been stolen and therefore I can not produce the same. It is wrong to suggest that at the factory at Faridabad Contract Labour was also employed. I am not ITI qualified Mig Welder,.
I do not produce any documents to show that I joined the factory at Faridabad in the year 2000. (Vol all my documents have been stolen) I used to get salary from Mr. Gajender. I do not know Contractor of M/s PIVOT MULTIFAR INDUSTRIAL SERVICES LTD. at Faridabad. It is correct that I have worked Faridabad till last. It is wrong to suggest that I was working under the above stated Contractor. It is incorrect to suggest that I was given the ESI card by the said Contractor and PF was also deducted by it.
Qus. It is put to you that salary was used to be paid to you by making an entry in register?
Ans. I used to get salary after signatures on the PF Chart. (Individual paper) Qus. At this stage, Payment of Wages Register maintained by M/s PIVOT MULTIFAR INDUSTRIAL SERVICES LTD. (which has been produced by Mr. Mukesh, Field Officer) is put to the witness with the query whether sheet for the month of May 2009 bears his signatures or not?
Ans. Witness replied in affirmative. His signatures are at pointA on Ex.WW1/X1 filed on record today.
It is correct to suggest that ESI and other benefits used to be provided to me at Faridabad. it is wrong to suggest that I used to work under the Supervision of M/s PIVOT MULTIFAR INDUSTRIAL SERVICES LTD., get the salary from M/s PIVOT MULTIFAR INDUSTRIAL SERVICES LTD. and avail leaves with the permission of M/s PIVOT MULTIFAR Page No. 14 of 23 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Jatashankar Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 351/10 INDUSTRIAL SERVICES LTD.
I did not used to get uniform. Again said I got the uniform once in the year 2007 when the company has shifted to Plot No. 49, Sahni More, DLF, Faridabad from Sector C - 27, Faridabad. I do not possess company employee Identity card. (Vol it was never given to me)........" As per above depositions of workman, workman was not given appointment letter at Delhi nor the management had given EPF slip to the workman. Also as per above depositions no identity card was given by the management company. What is pertinent to note is that even M/s. Pivot Multifar Industries Services Pvt. Ltd. has not produced any appointment letter or identity card given by it to the workman. As per workman, workman does not know M/s. Pivot Multifar Industrial Services Ltd. at Faridabad. Also workman denied the suggestion given to him regarding workman working under the supervision or getting salary from or availing leaves with the permission of M/s. Pivot Multifar Industrial Services Ltd. It has not been even suggested to workman in his cross - examination that workman was appointed by M/s. Pivot Multifar Industries Services Pvt. Ltd. and management was availing services of workman through M/s. Pivot Multifar Industries Services Pvt. Ltd. Insistence in the beginning of cross - examination of workman by ld. counsel for management is as regards the place of employment of the workman and not to the fact that workman was never appointed by management herein.
FURTHER it is pertinent to note that in the WS of the management, management did not at all plead about the nature of work done by / taken from the workman. Even in the cross examination of workman, workman has not been cross examined as regards actual nature of work being done by workman or taken from workman. It is alright that in his cross - examination workman has been made to depose that, "... I am not ITI qualified Mig Welder...... I did not possess any experience Page No. 15 of 23 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Jatashankar Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 351/10 certificate as Mig Welder.......", but even the suggestions are not there as regards the actual nature of work being done by workman or taken from workman. In a way depositions made by workman to the effect that workman was working with the management as 'Mig Welder' have gone unrebutted / unchallenged. In the document Ex.WW1/X1 relied upon by management itself work of workman has been mentioned as 'Welder'.
Management is relying upon Certificates of Registration Ex.MW1/1 to Ex.MW1/5 and relevant portions therefrom read as under: Sl. No. Name Address Nature of work of Workers Period Contractor Ex.MW1/1 M/s. Pivot B323, Nehru Material Handling, 8 01.02.2002 Multifar Industrial Ground, NIT, Loading, Unloading & to Services Pvt. Ltd. Faridabad (Faridabad) Security 31.12.2003 Ex.MW1/2 M/s. Pivot B323, Nehru Material Handling, 18 01.01.2004 Multifar Industrial Ground, NIT, Loading, Unloading & to Services Pvt. Ltd. Faridabad (Faridabad) Security 31.12.2005 Ex.MW1/3 M/s. Pivot B323, Nehru Material Handling, 15 04.05.2002 Multifar Industrial Ground, NIT, Loading, Unloading, to Services Pvt. Ltd. Faridabad (Faridabad) Production, House 31.12.2006 keeping & Security Ex. MW1/4 M/s. Pivot B323, Nehru Material Handling, 18 06.08.2007 Multifar Industrial Ground, NIT, Loading, Unloading & to Services Pvt. Ltd. Faridabad (Faridabad) Security 31.12.2007 Ex.MW1/5 M/s. Pivot B333, Nehru Packing, Loading, 100 01.01.2009 Multifar Industrial Ground, NIT, Unloading, Cutting to Services (p) Ltd. Faridabad Drawing 31.12.2013 What is pertinent to note is that in this case no license issued in the name of M/s. Pivot Multifar Industries Services Pvt. Ltd. under section 12 of the Contract Labour (Regulation & Abolition) Act, 1970. In the absence of such a license in the name of M/s. Pivot Multifar Industries Services Pvt. Ltd. there was no occasion for the management to avail the services of workman as 'Mig Welder' from M/s. Pivot Multifar Page No. 16 of 23 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Jatashankar Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 351/10 Industries Services Pvt. Ltd. Also, the work of 'Mig Welder' does not fall in the nature of work which management was permitted to avail the services of labour contractor vide abovesaid Certificate of Registrations. This falsify the stand of the management as pleaded in written statement of defence to the effect that management is a law abiding company and each and every statutory provisions are strictly complied with by it.
It is pertinent to note that in another case against the same management namely Radheyshyam Vs. M/s. Kenmore Vikas (India) Pvt. Ltd. ID No. 357/10 MW1 Mr. Chandra Shekhar Singh, who has also appeared in this case as MW1 Mr. Chandra Shekhar Singh, deposed as under: "I joined the management company on 02nd April 2012 as Manager (HR & Administration). It is correct to suggest that during the period 2004 to 2009 I was not working with the management in any capacity. Management is a Automotive Company engaged in the manufacturing of machining components...................................................................... It is correct to suggest that I am deposing about the facts during the period from 2004 to 2009 on the basis of records of the management and other wise I have no personal knowledge about the same as I joined the management only on 02.04.2012.......".
It is a settled proposition of law that management is supposed to prove the stand taken by it in the WS by examining relevant witnesses capable of proving the facts as pleaded by management in the WS on judicial record. It is noted that on each of the document Ex.MW1/1 to Ex.MW1/5 name of Mr. Naveen Aggarwal is mentioned but said Mr. Naveen Aggarwal had preferred not to enter into witness box to prove the stand taken by the management in the WS. Nor any explanation has come on judicial record for non - examining said Mr. Naveen Aggarwal as management's witness. In my considered opinion depositions made by MW1 Mr. Chandra Shekhar Singh in Page No. 17 of 23 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Jatashankar Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 351/10 another case Radheyshyam Vs. M/s. Kenmore Vikas (India) Pvt. Ltd. ID No. 357/10 can be read in this case also inasmuch as date of joining of MW1 Mr. Chandra Shekhar Singh in the management would be a matter of fact and no prejudice at all is likely to be caused to the management by reason of this Court reading the above depositions of MW1 Mr. Chandra Shekhar Singh in this case also.
Also, MW1 Mr. Chandra Shekhar Singh in his cross - examination deposed as under: ".........Q. Whether as a Principal Employer management have been sending returns to the Inspector appointed under Rule 81 (3) of Contract Labour (Regulation & Abolition) Central Rules, 1971 in Form - VI B?
A. I do not know.
Q. Whether management has been issuing certificate to Contractors
for getting licences as required by law with an application of Contractor for getting licence on Form - V as per Rule 21 (2) of Contract Labour (Regulation & Abolition) Central Rules, 1971?
A. I do not know....."
There is nothing on judicial file to show that management complied with the above referred provisions of the Contract Labour (Regulation & Abolition) Central Rules, 1970.
Further, MW1 Mr. Chandra Shekhar Singh in his cross - examination deposed as under: "I am relying upon only those documents which have been exhibited in my affidavit or with which workman has been confronted in his cross examination. It is correct to suggest that exhibits Ex.MW1/6 to Ex.MW1/16 are not on nonjudicial stamp paper. (Vol. they are on the letter head on the company.) It is correct to suggest that Ex.MW1/6 to Ex.MW1/16 have not been attested either by the notary public or by an advocate. It is correct to suggest that in these documents license no. of the contractor is not mentioned.....................It is wrong to suggest that agreement Ex.MW1/6 to Ex.MW1/16 are false and fabricated documents Page No. 18 of 23 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Jatashankar Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 351/10 because they do not disclose the rate of the workman, service charges to the contractor, quantum of work has to be done by the contractor within 8 hrs. and who will pay the overtime if workmen are detained.............. It is wrong to suggest that I have deposed falsely in toto...............The rates of the workmen skilled, semi skilled and unskilled has not been written in the agreements Ex.MW1/6 to Ex.MW1/16....".
It is noted that Agreement(s) Ex.MW1/6 to Ex.MW1/16 are silent as regards one of the most material aspect, that is, the rates payable to labour contractor by the management for the labourers allegedly supplied by the labour contractor. Further it is noteworthy that none of the Agreement(s) Ex.MW1/6 to Ex.MW1/16 bears the date on which it was signed by Director of M/s. Pivot Multifar Industrial Services Ltd. and authorised signatory on behalf of management. It is mentioned in the agreement(s) that agreement(s) have been made on 01st day of January of 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010. It is also mentioned in the Agreement(s) that the said Agreement(s) shall be enforcible from retrospective dates i.e. from 1st day of January as mentioned above. This clause would have been meaningful if and only if the signatory(s) to the said Agreement(s) would have also put dates of signatures on / execution of said Agreement(s). Also, it is noted that it is not mentioned in the Ex.MW1/6 to Ex.MW1/16 that as to what nature of workforce M/s. Pivot Multifar Industries Services Pvt. Ltd. had agreed to provide to the management. These Agreement(s) Ex.MW1/6 to Ex.MW1/16 can be said to be vague in respect of material aspect of the agreement(s) and this vagueness in the totality of facts and circumstances of this case indicates that infact these Agreement(s) are sham / bogus and camouflage.
MW1 Mr. Chandra Shekhar Singh in his cross examination deposed as under: ".....Payments to the contractor's workers used to be made in the premises of the management in the presence of representative of the management......
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Document Ex.WW1/X1 does not bear the signatures of the accounts officer as well as representative of the management who used to remain present at the time of disbursing the wages / salary to the contractor's workers (Vol. representative of the management simply used to remain present at the time of disbursing the wages / salary to the contractor's workers. Also Accounts officer does not sign document like Ex.WW1/X1.)................. It has not been verified by representative of the management that payments made vide Ex.WW1/X1 have been made in the presence of such representative of the management and there is no certificate attached to the document Ex.WW1/X1 by the representative of the management certifying that payments have been verified by him. (vol. it is alright that there is no noting regarding the verification / certification but as a matter of fact payments were made in the presence of representative of the management. Also the counter signatures of the representative of the management are not there.)............". The above voluntary depositions are patently false inasmuch as at the relevant point of time MW1 Mr. Chandra Shekhar Singh was not in the employment of management and there is no basis for him to make abovesaid voluntarily depositions which are not based on records available on judicial file. Also it is noted that management has not examined anybody from M/s. Pivot Multifar Industries Services Pvt. Ltd. to prove that M/s. Pivot Multifar Industries Services Pvt. Ltd. had provided the services of workman to the management. No appointment letter issued by M/s. Pivot Multifar Industries Services Pvt. Ltd. in the name of workman have been produced / or proved on judicial file. When Agreements Ex.MW1/6 to Ex.MW1/16 have been held to be sham / bogus / camouflage, the fact that name of workman appears in ESI and EPF Returns / Records of M/s. Pivot Multifar Industries Services Pvt. Ltd. is to no legal consequences. The fact that name of workman Jata Shankar does not appear in the ESI / PF Returns / Records of management is also to no legal consequence and does not in any way attack the reliability of the case of workman.
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Workman in the statement of claim pleaded that no appointment letter was issued to him by management. Management has not produced appointment letter(s) of any of the employees whose ESI / EPF Returns / Records have been produced by management. In such circumstances, the possibility of management employing the workman also without issuing any appointment letter cannot be ruled out altogether. Here the fact that in the statement of claim there are no averments regarding the Agreement(s) between management and M/s. Pivot Multifar Industries Services Pvt. Ltd. being sham / bougus / camouflage is also to no consequences inasmuch as workman is claiming himself of to be an employee of the management itself and the Agreement(s) are matter of defence / stand of the management and it is for the management to prove the bonafides / genuineness of such Agreement(s). Management was given full opportunity in this regard which management did avail. The case laws relied upon by ld. counsel for management has no application in the totality of facts and circumstances of this case. The case laws cannot be interpreted like statutes and each case is to be decided keeping in view its peculiar facts and circumstances as made out on the basis of material available on judicial file. This conclusion, further, in the facts and circumstances of this case, make this Court to the conclude management did terminate services of workman illegally on 20.07.2009 as pleaded / deposed by workman. Statement of claim filed by workman suggest that workman is alleging violation of provisions of section 25F of the Industrial Disputes Act, 1947 by the management at the time of termination of his services and workman is held to have been successful in proving the same on judicial file.
MERELY BECAUSE, management terminated the services of workman in violation of provisions of section 25F of the Industrial Disputes Act, 1947 does not mean that workman is automatically entitled to reinstate in service with management Page No. 21 of 23 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Jatashankar Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 351/10 with full back wages. Here, keeping in view the issues which have already arisen between the parties, in my considered opinion, order for reinstatement of workman with management may not result in peaceful industrial relations between the parties. Hence, reinstatement is declined. Workman in the evidence affidavit attested on 01.03.2013 deposed that workman in unemployed inspite of his efforts. Further, WW1 Jata Shankar in his cross - examination deposed as under: "......My family comprises of four persons as on date. My monthly expenses are around 6 - 7000/ pm. (vol. presently I am residing at my native village and engaged in agricultural work. I take the agricultural land for agricultural purposes for THEKA. I engage Tractor for cultivation and rest of the activities are done by me alone and I share the profits out of the crops. At present I have 1 ½ Beeghas of agricultural land comprising in two parts (two Khets) for cultivation on THEKA. The area of the land changes from year to year. At the most I had two beeghas of land and at the minimum 12 to 14 Biswa of land was taken by me on THEKA.) In a year I approx. get 1 - 1 ½ quintal of wheat, bajra and chana in total in a year. I did not attempt to get service anywhere else after ceasation of my service with the management. It is wrong to suggest that there is no relationship of employer and employee between management and me......." Admittedly, workman has not remained totally unemployed / without earning after termination of his services by the management. Also workman did not not attempt to get service anywhere else after ceasation of my service with the management. Thus, workman is held to be not entitled to full back wages.
In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the tune of Rs.50,000/ (Rupees Fifty Thousand only) to the workman for illegal / unjustified termination of his services by the management and for consequences thereof / back wages would meet the ends of justice. If this amount of Rs.50,000/ (Rupees Fifty Thousand only) is not paid to Page No. 22 of 23 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Jatashankar Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 351/10 workman within one month of award coming into force management shall be liable to pay interest @ 9% per annum on this amount from the date of the award till its payment. A sum of Rs.15,000/ (Rupees Fifteen Thousand only) is also awarded to workman as costs of litigation payable by the management. ISSUES No. 2 and 3 are decided accordingly.
ISSUE No. 4: Relief, if any.
As above.
9. Reference is answered accordingly.
10. A copy of the award be sent to the Office of the concerned Deputy Labour Commissioner for further necessary action.
11. File be consigned to Record Room after completing due formalities. PRONOUNCED IN THE OPEN COURT ON 30.04.2015.
(ANAND SWAROOP AGGARWAL)
POLCXI, Karkardooma Courts, Delhi
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