Delhi District Court
Bal Chand & Ors. vs . M/S. Vadehra Furniture Pvt. Ltd. & Anr. ... on 22 March, 2014
Bal Chand & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 76/06
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI:
KARKARDOOMA COURTS: DELHI
REFERENCE CASE (ID No.76/06)
UNIQUE CASE ID No. 02402C0004091996
In the matter of:
Sl. No. Name & Parentage of the Residential address of the workman
workman
01. Bal Chand S/o Sh. Toonli R/o. Village Bhimpura, Post Bhimpura
(Krishnapur) Dist. Baliya, U.P.
02. Mithai Lal S/o Khudur R/o. Jhuggi No. D 103, Indira, Kalyan Vihar,
Okhla Phase I, New Delhi.
03. Vir Bahadur S/o Bhola Prasad R/o. Jhuggi No. A113, Sanjay Camp, Okhla
PhaseII, New Delhi.
04. Purushotam S/o Sh. Gauri R/o. Village Malik Pur, P.O. Jahurabad, District
Shankar Gazipur, U.P.
05. Jhinak S/o Sh. Jokhu R/o. Village Ram Nagar Suras, Post Mahita,
District Gorakhpur, U.P.
C/o. Delhi State Kamgar Union,
Balmukund Khand, Giri Nagar,
Kalkaji, New Delhi19.
............. Workmen / Claimants
V/s.
(1) M/s. Vadehra Furniture Pvt. Ltd. (as per reference)
(VADHERA FURNITURES PVT. LTD.
as mentioned in written statement of defence)
(Vadehra Furnishers Pvt. Ltd. as used vide Ex.MW-1/1
Authority letter in favour of Mr. Anand Singh given by
Mr. Deepak Vadehra Director of Vadehra Furnishers Pvt. Ltd.)
A195196, Okhla Industrial Area,
PhaseI, New Delhi - 110020.
(2) M/s. Sunita Vadehra & Associates (as per reference)
(M/s SUNITA VADHERA & ASSOCIATES
as mentioned in written statement of defence)
A207, Okhla Industrial Area,
PhaseI, New Delhi 110020.
........ Managements
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Date of Institution : 16.11.1996
Date of reserving for award : 11.03.2014
Date of award : 22.03.2014
AWARD:
1. TERMS OF REFERENCE:
Vide ORDER No. F.24(4410)/96Lab./4881722 dated 04.11.1996
Secretary (Labour), Labour Department, Government of N.C.T. of Delhi made
the following reference under section 10(1)(c) and 12(5) of the Industrial
Disputes Act, 1947 read with Govt. of India, Ministry of Labour Notification
No. S11011/2/75 - DK (IA) dated the 14th April, 1975 for adjudication by
Labour Court No. X:
"Whether the services of S/Sh. Bal Chand, Mithai Lal, Vir
Bahadur, Purshotam, Jhinak 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?"
1A. Vide ORDER No. F.25(Transfer)04/Lab./789297 dated 10.11.2004
Secretary (Labour) transferred the case to Labour Court No. VIII in exercise of
his powers under section 33 B of the Industrial Disputes Act, 1947.
1B. Vide ORDER dated 17.02.2006 case was transferred to the Court of Ms.
Nisha Saxena, Ld. POLC pursuant to orders from Hon'ble Delhi High Court
and Ld. District and Sessions Judge, Delhi.
1C. Vide ORDER dated 23.05.2006 Ms. Aruna Suresh, Ld. District &
Sessions Judge: Delhi transferred the case from the Court of Ms. Nisha
Saxena, Ld. POLC / FTC to the Court of Ms. Deepa Sharma, Additional
District Judge / POLC - XI.
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2. CASE OF WORKMEN AS PLEADED / ALLEGED IN STATEMENT
OFCLAIM:
(i) Management is regularly engaged in the business of furniture since last
25 years.
(ii) Service details of the workmen whose services have been terminated
are as under:
Sl. No. Name of the workman Post Salary Appointed since
01. Bal Chand Painter 1635/ March 1984
02. Mithai Lal Painter 1716/ June 1988
03. Bir (sic) Bahadur Painter 1635/ February 1989
04. Purshottam Painter 1924/ February 1989
05. Jhinak Painter 1690/ November 1987
(iii) All the workmen were working on the post of 'Painters' since last many
years and were struggling to get minimum wages under the banner of the
Union. Management was not providing wages on the basis of minimum work,
annual, casual, holiday, festivals, funds, bonus, E.S.I. (sic).
(iv) Management is responsible for gross violation of provisions of the
Industrial Disputes Act, 1947. The management was forcing the workmen
alongwith other workers of the establishment to work for 11 - 30 hours (sic)
and no overtime was given to workers. The management led by Mr. Deepak
Vadhera (sic) threatened the workmen that labour office is in his pocket and it
cannot do anything for the welfare of the workers.
(v) Management intentionally retrenched the old workers and appointed the
new workers and had regularly retrenched the workers. Contract Labour
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System is being practised by the management. The retrenchment was in the
violation of Chapter V B of the Industrial Disputes Act, 1947.
(vi) Some examples of arbitrary attitude of management are given below:
(a) All the workmen were paid salary of the month of December 1994 on a
single register of M/s Vadhera Furnitures and as soon as general checking was
made by the union all the previous registers were closed and in (sic) new
register were (sic) started and salary was given on their names (sic).
(b) All the workers are paid salary for the month of January only on one
paper and salary for the month of July by Labour Inspector.
(vii) Management illegally retrenched around 75 workmen and industrial
dispute vide nos. 2480/95, 311/96, 382/96, 357/96 are pending adjudication
before this Court and ID No. 1465/96 is pending before the Court of Sh. M. L.
Guar, Ld. POLCIV, Tis Hazari, Delhi.
(viii) All the workmen are unemployed since their illegal termination i.e.
05.07.1995.
(ix) Demand letter was served upon the management on 18.07.1995.
(x) The workmen have been illegally terminated and because of arbitrary,
unjustifiable and unfair labour practice against the Industrial Disputes Act,
1947.
With these averments workmen have prayed for their reinstatement with
continuity of service and full back wages alongwith all benefits to which the
workmen are entitled.
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3. CASE OF MANAGEMENTS AS PLEADED IN WRITTEN
STATEMENTS OF DEFENCE.
SEPARATE WRITTEN STATEMENTS HAVE BEEN FILED BY
BOTH THE MANAGEMENTS.
Management no.1 in its WS has taken certain preliminary objection
including that (i) this reference has been made against two managements.
Management no.1 is a company registered under the Companies Act, and
management no.2 is a sole proprietorship concern and separate legal entity.
The terms of reference does not specify which of the claimant is making a
claim against management no.1 or management no.2. Terms of reference have
been made mechanically and without application of mind and are liable to be
set aside; (ii) claimants are not covered under the definition of section 2 (s) of
the Industrial Disputes Act, 1947; (iii) terms of reference have been made by
Secretary (Labour) without application of mind and even without considering
the submissions made by the management no.1 during the conciliation
proceedings and (iv) the terms of reference in the present case have been made
by the Secretary (Labour), Govt. of National Capital Territory of Delhi who is
neither authorised nor competent to do so in as much as there is no legal valid
delegation of powers in his favour to make the terms of reference and, as such,
the terms of reference and resultant proceedings are without jurisdiction.
ON MERITS, case of management no.1 is that none of the claimants
namely S/Sh. Bal Chand, Mithai Lal, Veer Bahadur, Purshottam or Jhinak were
ever employed by management no.1 and the claimants were never having
employer - employee relationship with management no.1. AS ALLEGED,
management no.1 is a small establishment dealing in interior construction on
project to project basis as and when the work is received on contract. There
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may be occasions when more than one contract is in hand and there are also
occasions when no contract is there and, accordingly, management no.1 is
keeping limited number of workmen as its regular employees on rolls.
Claimants were allegedly never engaged by management no.1. As management
no.1 never employed the claimants, it has no knowledge about the service
details of claimants as pleaded in statementofclaim. As per management no.1,
as it never employed the claimants, the question of not providing the wages on
the basis of minimum work, annual, casual, holidays, festivals, funds, bonus,
ESI etc. does not arises at all. There is no violation of any of the provisions of
the Industrial Disputes Act, 1947 and allegations of threats allegedly extended
by Mr. Deepak Vadhera have also been denied by management no.1. The
claimants have never worked with management no.1 and, thus, the question of
paying salary / wages on vouchers does not arise at all. Management no.1 is
defending all the cases in which it has received the notices from the Courts. To
the knowledge of management no.1, claimants are in gainful employment. In
any event, there are lot of employment opportunities for the Helpers in the
metropolitan city of Delhi if somebody is interested in working. Question of
termination of services of claimants by management no.1 does not arises at all
in as much as claimants were never employed by management no.1.
Management no.1 did not receive alleged demand notice dated 18.07.1995. In
any event, sending of demand notice, if any, does not create any right in favour
of the claimants. At last, management no.1 prayed for outright rejection of
whole of claim of claimants.
MANAGEMENT NO. 2 also took preliminary objection no. (i) as
pleaded by management no.1. ON MERITS, it pleaded that none of the
claimants namely S/Sh. Bal Chand, Mithai Lal, Veer Bahadur, Purshottam or
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Jhinak were in the employment of management no.2 and whole claim of the
claimants is wholly misconceived and illconceived.
As per management no.2, it is a small establishment dealing in interior
construction on project to project basis as and when the work is received on
contract. There may be occasions when more than one contract is in hand and
there are also occasions when no contract is there and, accordingly,
management no.2 is keeping limited number of workmen as its regular
employees on rolls. HOWEVER, as and when the project is in hand, the
management no.2 takes work through petty contractors, or on very urgent
requirement, takes an individual or few persons on day to day contract on daily
wages on temporary basis. As alleged, on checking the records, it has been
revealed that these persons worked for very little period due to sudden pressure
of work as casual Helper for few months in and around beginning of
________(sic) year. For the work they were paid accordingly. Management
no.2 further clarified that these persons were not in the regular employment
and they were taken on day to day basis subject to work being there and they
being available for work. After that, they never made themselves available for
work and, in fact, there was no work for them. Management no.2 further
pleaded that, if the allegations of the claimants is that they have been working
at a project of the respondent for a Contractor, in that event for the alleged
claim the claimants are required to contact and approach their employer and not the replying management no.1. As alleged, neither of the claimants was (sic) a 'Painter' and five claimants worked for limited period of a couple of months as stated above and were paid accordingly. Management no.2 has denied the averments of claimants that they were paid less than the minimum wages or that they were not provided the facilities which they are entitled in law.
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Further, management no.2 pleaded that there is no violation of any of the provisions of the Industrial Disputes Act, 1947 and neither of claimants was working on overtime. As alleged, claimants were working on piece rate basis and were paid accordingly. Allegations of threat have also been denied by management no.2. Management no.2 has denied the allegation of it retrenching the claimants and has pleaded that claimants were working as adhoc employees due to temporary pressure of work and then they did not report for work. As alleged, claimants have been paid for the period they worked. Management no. 2 also pleaded that, to the knowledge of management no.2, claimants are in gainful employment and in any event, there are lot of employment opportunities for the Helpers in the metropolitan city of Delhi if somebody is interested in working. As pleaded, claimants were (sic) (worked?) for a limited period on adhoc basis and then they left on their own. Management no.2 did not receive alleged demand notice dated 18.07.1995. At last management no.2 pleaded that none of the claimants is entitled to any relief, much less the relief of reinstatement or back wages or continuity of service. The claimants were only ad hoc for a limited period as Helper to the Painters and after that they left on their own. The limited project for which they were working have (sic) already been finished long back. Management no.2 prayed for outright rejection of whole claim of claimants.
4. REJOINDER.
IN SEPARATE replications to the written statements of managements, workman denied the stand taken by managements and reiterated the averments made in statementofclaim.
5. ISSUES Page 8 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Bal Chand & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 76/06 On 08.05.2000 following issue was framed:
(i) As per terms of reference.
6. EVIDENCE.
Workman at serial no. 01, 02, 03, 04 and 05 appeared in witness box as WW2 Bal Chand, WW4 Mithai Lal, WW1 Bir Bahadur, WW5 Purshottam and WW3 Jhinak respectively. Workmen's evidence closed on 02.03.2006.
Management no.1 examined in chief MW1 Mr. Anand Singh vide his affidavit Ex. MW1/A. On 10.03.2008 his cross - examination was deferred for want of original documents. MW1 Mr. Anand Singh did not appear for his cross - examination and management no.1 examined MW3 Mr. Naval Kishore and closed its evidence on 20.09.2011 as per noting of Mr. Faiyaz Hasan, adv. Affidavit of Mr. Deepak Vadhera is on record but he did not appear in witness box. Management no.2 examined MW2 (also numbered as MW1) Dalip Singh.
7. ARGUMENTS.
I have heard Ms. Poonam Kaushik, adv. for the workmen and Sh. Faiyaz Hasan, adv. for the management. Ld. counsel for workmen relied upon case laws reported as (i) Morinda Co - op. Sugar Mills Ltd. V/s Ram Kishan and Ors. etc. AIR 1996 SC 332; (ii) U. P. State Road Transport Corporation V/s C. P. Goswami 2013 LLR 1013; (iii) Bhavnagar Municipal Corporation V/s Salimbhai Umarbhai Mansuri 2013 LLR 1042; (iv) The Associated Cement Companies, Ltd. V/s Chaibasa Cement Works, Jhinkpani V/s Their Workmen AIR 1960 SC 56; (v) Honorary Secretary, South Asia Mill Owner's Association & Ors. V/s The Secretary, Coimbatore District Textile Workers' Union AIR 1962 SC 1221; (vi) State of Maharashtra & Anr. V/s Sarva Shramik Sangh, Page 9 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Bal Chand & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 76/06 Sangli & Ors., Civil Appeal No. 2565/06 (Date of Decision 21.10.2013) (Supreme Court of India) and (vii) Amsal Chem Pvt. Ltd. V/s L. G. Prajapati C/SCA/11815/2004 Gujarat High Court (Date of decision 22.01.2013). Ld. counsel for management filed list of following citations (1) 1976 Lab. IC 1092 (AII); (2) 1975 Lab. IC 702 and (3) 46 FIP 190 Delhi. I have gone through material available on judicial file very carefully.
8. My ISSUEWISE findings are as under: ISSUE No.1: As per terms of reference.
("Whether the services of S/Sh. Bal Chand, Mithai Lal, Vir Bahadur, Purshotam, Jhinak 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?") A. DECISION ON PRELIMINARY OBJECTIONS At the outset, it is noted that no fault can be found to be in the ORDER OF REFERENCE merely because it does not specify which of the claimant is making a claim against management no.1 or management no.2. The act of making a reference to the Labour Court is an administrative act & Secretary (Labour) while performing such an act cannot adjudicate the disputes between the parties on merits. The adjudication on facts / merits is to be made by the Labour Court in exercise of its quasijudicial functions under the Industrial Disputes Act, 1947. Also it is noted that reference in hand has been made by Secretary (Labour) Govt. of N.C.T. of Delhi in exercise of his powers under section 10(1) (c) and 12(5) of the INDUSTRIAL DISPUTES ACTS, 1947 read with Govt. of India, Ministry of Labour Notification No.S11011/2/75 - DK (IA) dated 14th April, 1975. Full bench of Hon'ble Delhi High Court in case law reported as India Tourism Development Corporation Vs. Delhi Administration Page 10 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Bal Chand & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 76/06 and Ors. MANU/DE/0297/1982 has upheld the validity of this Notification. Thus, reference has been made by Secretary (Labour) in due exercise of his powers.
B. APPLICABILITY OF PROVISIONS OF SECTION 25N, CHAPTER VB OF THE INDUSTRIAL DISPUTES ACT, 1947.
The TERMS OF REFERENCE in hand pertains to 05 workmen whose services have been allegedly terminated arbitrarily on 05.07.1995. Be that as it may. Workmen are alleging violation of the provisions of section 25N, Chapter VB of the Industrial Disputes Act, 1947. As per section 25K(1), the provisions of Chapter VB of the Industrial Disputes Act, 1947 shall apply to an 'industrial establishment' (as defined under section 25L of the Industrial Disputes Act, 1947) (not being an establishment of a seasonal character or in which work is performed only intermittently) in which not less than one hundred workmen were employed on an average per working day for the preceding twelve months. It is for the workmen to establish on Judicial file that this requirement of section 25K(1) of the Industrial Disputes Act, 1947 is satisfied before workmen can seek protection / applicability of the provisions of section 25N of the Industrial Disputes Act, 1947.
Workmen in this case have not even pleaded the requirements of section 25K(1) so as to attract the provisions of section 25N of the Industrial Disputes Act, 1947. Also there is no evidence on judicial file to make this Court to conclude that management(s) employed not less than 100 workmen on an average per working for the preceding twelve months. Thus, it is held that workmen have failed to establish on judicial file that the provisions of section 25N, Chapter VB, Industrial Disputes Acts, 1947 are applicable in this case.
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Thus, this Court will proceed to answer the reference keeping in view the provisions of Chapter VA of the Industrial Disputes Act, 1947.
At this juncture it is pertinent to note that Hon'ble Supreme Court of India in case law reported as S. M. Nilajkar and Ors. Vs. Telecom District Manager, Karnataka (2003) 4 SCC 27 with regard the provisions of section 2 (oo) (bb) of the Industrial Disputes Act, 1947 observed as under: "13. The termination of service of a workman engaged in a scheme or project may not amount to retrenchment within the meaning of sub clause (bb) subject to the following conditions being satisfied:
(i) that the workman was employed in a project or scheme of temporary duration;
(ii) the employment was on a contract, and not as a daily wager simpliciter, which provided inter alia that the employment shall come to an end on the expiry of the scheme or project;
(iii) the employment came to an end simultaneously with the termination of the scheme or project and consistently with the terms of the contract; and
(iv) the workman ought to have been apprised or made aware of the abovesaid terms by the employer at the commencement of employment.
14. The engagement of a workman as a dailywager does not by itself amount to putting the workman on notice that he was being engaged in a scheme or project which was to last only for a particular length of time or up to the occurrence of some event, and therefore, the workman ought to know that his employment was shortlived. The contract of employment consciously entered into by the workman with the employer would result in a notice to the workman on the date of the commencement of the employment itself that his employment was shortlived and as per the terms of the contract the same was liable to termination on the expiry of the contract and the scheme or project coming to an end. The workman may not therefore complain that by the act of the employer his employment was coming to an abrupt termination. To exclude the termination of a scheme or project employee from the definition of retrenchment it is for the employer to prove the abovesaid ingredients so as to attract the applicability of Page 12 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Bal Chand & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 76/06 subclause (bb) abovesaid. In the case at hand, the respondent employer has failed in alleging and proving the ingredients of sub clause (bb), as stated hereinabove. All that has been proved is that the appellants were engaged as casual workers or dailywagers in a project. For want of proof attracting applicability of subclause (bb), it has to be held that the termination of the services of the appellants amounted to retrenchment."
Also Hon'ble Supreme Court of India in L. Robert D' Souza (1982) 1 SCC 645 held that section 25F of the Industrial Disputes Act, 1947 is applicable to a daily rated worker.
C. CERTAIN OBSERVATIONS REGARDING PLEADINGS OF THE PARTIES.
The ORDER OF REFERENCE mentions two managements.
Statementofclaim also mentions / has been filed against two managements. Management no.1 is a company incorporated under the provisions of the Companies Act, 1956 and management no.2 is a sole proprietorship concern. Workmen have not pleaded as to, they were employed by / under which of the management(s) and which of the managements terminated the services of each individual workman. Workmen even did not plead as to how both the managements are related / interlinked with each other. It is important to note that workmen in the statementofclaim have not even pleaded that after the alleged termination of their services by the management(s), they even tried for alternate service. They have not also pleaded in the statementofclaim that they despite efforts to get fresh job / service are still unemployed. Workmen simply pleaded that all the workmen are unemployed since their illegal termination (i.e. since 01.08.1995). In such circumstances, workmen are not entitled to full back wages. Depositions in the affidavits, if any, in the absence Page 13 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Bal Chand & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 76/06 of pleading in statementofclaim do not serve any purpose in as much as evidence without supporting pleadings is no evidence.
In this case management no.1 denied existence of employer - employee relationship between it and the workmen. On the other hand, management no.2 pleaded that as and when the project is in hand, the management no.2 takes work through petty contractors, or on very urgent requirements, takes an individual or few persons on day to day contract on daily wages on temporary basis. As per management no.2, on checking the records, it has been revealed that these persons worked for very little period due to sudden pressure of work as casual Helpers for few months in and around beginning ______ (sic) year and there were paid accordingly. Management no.2 further clarified that these persons were not in regular employment and they were taken on day to day basis subject to work being there and they being available for work. Management no.2 further pleaded that claimants were working on piece rate basis and were paid accordingly. Management no.2 also pleaded that claimants were working as adhoc employees due to temporary pressure of work and then they did not report for work / left on their own. Thus, it is observed that management no.2 admittedly availed the services of workmen / claimants. Management no.2 has not specifically pleaded that it availed the services of workmen / claimants through contractors. Thus, it is further observed that management no.2 directly availed the services of workmen / claimants. Even otherwise management no.2 has not disclosed the details of the alleged petty contractor. No such petty contractor has been examined by management no.2. Also, it is noted that management no.2 has not produced the relevant record on checking of the same it came to know that claimants worked for very little period due to sudden pressure of work. Management no.2 has not, also, Page 14 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Bal Chand & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 76/06 pleaded the period for which it availed the services of workmen / claimants. Since, admittedly, management no.2 was possessing the records mentioning the alleged service tenure of claimants / workmen with it, but still did not produce the record before the Court adverse inference may be drawn against the management no.2 and Court may proceed with assumption that the period of service tenure as deposed by workmen / claimants on oath is correct. D. Court, thus, proceeds to decide the claims of these 5 workmen. SERIAL NO. 01 BAL CHAND Workman at Serial Number 01 appeared in witness box as WW2 Bal Chand and in his evidence affidavit deposed that he was working with management as 'Polisher' since March 1984 and his last drawn wages were Rs.1635/. As per averment made in statementofclaim that his services were terminated on 05.07.1995. In his cross examination WW2 Bal Chand has been made to depose that as follows: "I signed my affidavit. I do not know what has been written in my affidavit. I have no documentary proof to show my residential address as the same has been lost in fire two years back. I have not gone to any place to sign the affidavit. It is wrong that I have not work with M/s Badera Furnitures. The show room of the mgt. is situated at Okhla PhaseII. Again said, it was situated at phaseI. I have no documentary proof that I ever worked with the mgt. It is wrong that no salary was given by the management. The mgt. used to give the salary on its own register. I used to work with the mgt. as a polishman. I used to work as polishman since 1984. I had not taken any degree or diploma as a polishman. I was in my native village before joining the mgt.
I used to work as a farmer in my native village. I did not know the work of polishing but I joined as a helper and then I become a polisher. It never happened that I was not given work by the mgt. I am unemployed these days. I am having two children. I maintained my family by doing casual work. It is wrong that I was engaged by the mgt. to do the work at Hotel Royal Place only. About 7/8 polishmen were working with the mgt. It is wrong that in case of need, the mgt. used to Page 15 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Bal Chand & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 76/06 engage polishman from outside. It is wrong that mgt. used to engaged contractors. It is wrong that I was engaged by the contractors or an a contract. It is wrong that I was paid wages on piece rate basis. It is wrong that bill was raised by the contractos for work done by me and he used to pay wages for me. I used toget wages on monthly wages by signing wages register. My duty hours from 8 a.m. to 4.30 p.m. I never mark my attandance in attendance register. It is wrong that my work was controlled by the contractor. My work used to be supervise by Mr. Anand. It is wrong that I am deposing falsely."
MW1 Mr. Dilip Singh in his cross examination deposed that, "......... I know the workmen namely Bal Chand, Mithai Lal, Jhinak, Vir Bahadur and Purshottam since they were working as polishers with the Management.........". He also deposed that, "............ Management used to appoint workmen for the purpose of polish and paint. There was no system of marking the attendance of the workmen. Vol. The workmen were engaged through the contractor and they were kept on work / duty as long as the project was there. I do not remember whether there was any licence with the Management to take work from the workmen through contractor.......". Admittedly, managements availed the services of workmen. The stand of management that it availed the services of workmen through contractor is not worth credence for a judicial mind in the absence of details of such contractors and examination thereof in the Court in support of the case of the managements. Despite availability of records with the management no.2, it has not disclosed about the period for which it availed the services of workmen. In such circumstances, Court may draw adverse inference against the management no.2. Thus, workmen's depositions on oath are liable to be believed. There is no proof of compliance with the provisions of section 25 F of the Industrial Disputes Act, 1947. MW1 Mr. Dilip Singh also deposed that, "................ I do not remember whether the Labour Inspector visited the premises of the Management on 05.07.1995 and 06.07.1995. I also Page 16 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Bal Chand & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 76/06 do not remember whether the Management refused to reinstate the workmen on these dates before the labour inspector as stated in Ex.WW1/7........ No appointment letter was issued to the workman in the present case....... It is correct that the document i.e. demand notice Ex.WW1/1 was duly received by Management no.2 M/s Sunita Vadehra and Associates. I do not remember whether the aforementioned demand notice was replied by the Management no. 2 or not......... It is correct that on 05.07.1995 and on 06.07.1995 a labour inspector visited the premises of the Management no.2 and gave the report Ex.WW1/7.......". Also, MW3 Mr. Naval Kishore Chaudhary in his cross examination deposed that, ".......... I do not remember whether the Labour Inspector visited the premises of the Management no.1 and conducted general checking ......... I do not know whether the document Ex. WW1/1 was received by the Management or not. Same is my reply to the document Ex.WW1/4. I do not remember if the conciliation proceedings were initiated by the Assistant Labour Commissioner, South on the complaint of the workmen against the Management no.1. I do not know whether the labour inspector conducted a general checking on 10.01.1995 and submitted his report which is Ex.WW1/8. It is wrong to suggest that I started working with the Management no.1 as a helper. I do not remember whether I mentioned my designation as a helper during general checking conducted on 10.01.1995 and photocopy of the document in this regard is Ex.MW3/W1x collectively running into 8 pages. The address of the Management no.1 has been correctly mentioned on documents Ex.WW1/10 to Ex.WW1/12 and Ex.WW4/1 to Ex.WW4/31. It is correct that the letters from the relatives used to be received by the workmen in the premises of the Management no.1. It is correct that the documents filed by me in the Court were not filed in their originals. To my knowledge these Page 17 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Bal Chand & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 76/06 workmen were not working in the factory on 05.07.1995. I am not aware if their services were terminated on 05.07.1995 from the factory premises and they might have been terminated from the site. The Management incharge of the site working used not to be the respondent / Management no.1. The site work was done under the supervision / guidance of the staff of the Management no.1.......". There is no specific denial by MW3 Mr. Naval Kishore Chaudhary that the question of management no.1 terminating the services of workman does not arise as workman was never employed by the management no.1. He has shown his ignorance towards the stand of the workman that workman's services were terminated on 05.07.1995. There is no emphatic depositions of MW3 Mr. Naval Kishore Chaudhary that workman were not working in the factory on 05.07.1995 and he has simply depose that to his knowledge workmen were not working in the factory on 05.07.1995. In the totality of the facts and circumstances of this case preponderance of probabilities support the case of the workman. In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the workman to the tune of Rs.1,76,000/ (Rupees One Lac Seventy Six Thousand only) in lieu of reinstatement / loss on account of illegal termination of his services payable by the managements jointly and severally to the workman would meet the ends of justice. Ordered accordingly.
SERIAL NO. 02 MITHAI LAL Workman at Serial Number 02 appeared in witness box as WW4 Mithai Lal and in his evidence affidavit deposed that he was working with management as 'Polisher' since June 1988 and his last drawn wages were Rs.1716/. As per averment made in statementofclaim that his services were terminated on Page 18 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Bal Chand & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 76/06 05.07.1995. In his cross examination WW4 Mithai Lal has been made to depose as follows: "I have identity card that I am resident of D103, Indira Kalyan Vihar, Okhla PhaseI, New Delhi but I have not placed the same on record. I can bring the same. I was working in Vadhera Furniture Pvt. Ltd. I have only letter which was sent by the relative. I was staying at the above said address. Salary was given by the management. I have no proof to show the alleged salary slip.
I used to do the furniture polishing work. I am not holding any diploma or degree for the same. I used to stay at home before doing the polishing work. I used to work before another sites of different organization. It is incorrect to suggest that I do not know how to do polishing work. I used to come only attend the matter every day.
I have five children and wife. My children are staying at my native village. They are working as a casual labour and I am also regularly stay at my native place. I used to do the farming in my village. I was engaged by the management in the year 1988. It is wrong to suggest that the work of the management was over once the contract has been completed. The work of the management was continuing. It is wrong to suggest that I used to be engaged when there was some order with the management. Vol. I was continuing working there. I can remember the name of the following workers who weer working with me i.e. Kali Charan, Batoi, Ram Laxman, Surender Pal. Rajinder, Ram Sabat, Rakesh, Jhinkant, Mahesh Prahlad etc. etc. I am not aware how many person took their full and final payment from the management. It is wrong to suggest that I was engaged on behalf of Contractor. It is wrong to suggest that I was being paid itemwise rate of polishing. Vol. I was paid only monthly basis. I used to work at Okhla PhaseI, in the Vadhera Furniture Pvt. Ltd. I used to report for work at 8.00 A.M. My attendance used to be marked on a register by the management. My working hours are 8.00 A.M. To 5.30 P.M. My work used to be supervised by one Roshan Foreman and not by the contractor. It is wrong to suggest that payment used to be made by the contractor. Payment used to be made by the representative of the management. Some time by Shiv Kumar and sometime by Roshan. It is correct that I named above were polishmen. It is wrong to suggest that Ram Chander, Bitori were supervising my work. It wrong to suggest that they weer contractor. Vol. They were on salary. It is wrong to suggest that payment used to be made fortnightly. Vol. It was on monthly basis. There was no contractor. It is wrong to suggest that I have deposed falsely." Admittedly, management availed the services of workman. Stand of the management that it availed the services through Contractor is not worth Page 19 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Bal Chand & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 76/06 credence for a judicial mind as already discussed while dealing the case of Mr. Bal Chand and the preponderance of probabilities in this case also, as already discussed, support the case of the workman. In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the workman to the tune of Rs.1,28,000/ (Rupees One Lac Twenty Eight Thousand only) in lieu of reinstatement / loss on account of illegal termination of his services payable by the managements jointly and severally to the workman would meet the ends of justice. Ordered accordingly. SERIAL NO. 03 BIR BAHADUR Workman at Serial Number 03 appeared in witness box as WW1 Bir Bahadur and in his evidence affidavit deposed that he was working with management as 'Painter' since February 1989 and his last drawn wages were Rs.1635/. As per averment made in statementofclaim that his services were terminated on 05.07.1995. In his cross examination WW1 Bir Bahadur has been made to depose as follows: "I do notknow english language. The contents of the affidavit were explained to me by My AR. The affidavit relates to service tenure, salry and place of work. I had signed my affidavit in court complex. I had also signed in the register. I was employed with M/s Badera Furnitures, and its how raoom as situated in the area of Kotla Mubarakpur. The workshop of the mgt. was situated in the Okhla. I used to work in Okhla PhaseII. I filed documentary proof on record that I was employed with the mgt. It is wrong that M/s Badra Furniture never paid me wages. I used to get my wages by 10th of month. I do not posses any degree of diploma as a Polishman. Even before joining the mgt. when I first come to Delhi, I remained engaged in the job of Polishman. It is wrong that I did not know the job of polishman.
I am not employed anywhere these days. It never happened that mgt. had not having any work at any point of time. I am having 4 children. I maintained my family by working in the filed with my parents in my native village. I am not doing the job of polishman these days rather engaged in agreeculture activities. It is correct that I work on Page 20 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Bal Chand & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 76/06 behalf of the mgt. in Park Royal Hotel in the Nehru place. It is wrong that I did not work for the mgt. after completion of work at the said hotel. It is wrong that I used to be engaged by them mgt. only when mgt. received any work. I performed my duty with the mgt. on day to day basis. About 70 employees were working with the mgt. at that time. It is wrong that all the workers have settled their full and final dues with the mgt. It is wrong that the contractor used to take work from us on behalf of the mgt. I did not work with the mgt. as contractor. I used to get my monthly wages from the management. Manager Anand Singh used to pay my wages, at Okhla PhaseII. I used to come to the factory at 8 a.m. And leave the same at 8.30 p.m. It is wrong that my work was under
control of contractor. It is wrong that I used to work on piece rate basis. Other polishmen namely, Balchand, Ram Nath, Jeenak, Ram Sabad, Rajnder, Batoi, Ram Azgya, Radha Mohan, Ram Chander, Prabhu Nath, Puroshottam, Bhagwati etc. were also working with the mgt. It is wrong that Sh. Ram Lakshman, Bitoi, and A.P. Raman were used to supervise my work. Vol. they were our foreman. It is wrong that said person were contractors. It is correct that I used to get my wages according to work done by me in a month. It is wrong that someonce I did not perform my duty at all. It is wrongthat I am deposing falsely."
Admittedly, management availed the services of workman. Stand of the management that it availed the services through Contractor is not worth credence for a judicial mind as already discussed while dealing the case of Mr. Bal Chand and the preponderance of probabilities in this case also, as already discussed, support the case of the workman. In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the workman to the tune of Rs.1,12,000/ (Rupees One Lac Twelve Thousand only) in lieu of reinstatement / loss on account of illegal termination of his services payable by the managements jointly and severally to the workman would meet the ends of justice. Ordered accordingly.
SERIAL NO. 04 PURSHOTTAM Workman at Serial Number 04 appeared in witness box as WW5 Purshottam and in his evidence affidavit deposed that he was working with management as Page 21 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Bal Chand & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 76/06 'Polisher' since February 1989 and his last drawn wages were Rs.1924/. As per averment made in statementofclaim that his services were terminated on 05.07.1995. In his cross examination WW5 Purshottam has been made to depose as follows: "I have only proof that I am Purshotam to inland letter but the same is not on record. I do not know to read and write English but I know little bit. Vol. I know Hindi language. I do not know what has been stated in the affidavit. I have worked for the both the management that is Vadhera Furniture Pvt. Ltd. And Sunita Vadhera and Associate. The management No.1 is operating from A195196 Okhla Industrial Area and Sunita Vadhera Associate is operating from A207, Okhla Industrial Area. I used to work in the A195196 Okhla Industrial Area. I have no proof to show that I am working with the management. Vol. I have already given to my counsel. It is wrong to suggest that I was not getting any salary. I have not any documentary proof to show that I am getting alleged salary slip. I used to do the polishing on furniture. I have no knowledge bout the polish work but I have learnt the polishing work when I was engaged by the management. I did not do the any work before joining the management. It is wrong to suggest that I have no knowledge of polishing and I have no knowledge how to do polishing. I do not do any work after the management stopped given work. I am married. I have got four children.
I am not earning money for them. I used to come from my village. I am not doing any work in my village. I have heard about the Park Royal Hotel. I do not know where the hotel is situated. Management always have lot of work and orders. It is wrong to suggest when management got big orders they used to get work done by the independent contractor. It is wrong to suggest that the management has contractor who got the work done and execute the order of polishing. I do not work with any contractor. It is wrong to suggest that polishing work done on the item wise. I was 20 years of age when I started the polishing work. I am 8th standard passed. I have no knowledge about the settlement of the workers with the management.
Q. What alleged salary you got when you have joined the management?
Ans. I have not remembered what alleged salary I used to get from the management.
I used to come for the alleged work at 8 A.M. And used to go home by 4 P.M. It is wrong to suggest that the work done by me supervised by contractor. It is wrong to suggest that the money paid to me by the contractor. Mr. Anand Singh used to make payment. Ram Page 22 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Bal Chand & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 76/06 Laxman Vatohi and A. P. Raman were doing polishing work. It is correct that Ram Laxamn Vatohi and A. P. Raman supervise my work. It is wrong to suggest that they are contractor. It is wrong to suggest that forthnightly payment done by the management. It is correct that when I did not work I did not paid by the management. There was a register maintained by the Chowkidar who maintained the gate register. It is wrong to suggest that I leave the job and gone to my native place. It is wrong to suggest that I do not know polishing. It is wrong to suggest that I have deposed falsely." Admittedly, management availed the services of workman. Stand of the management that it availed the services through Contractor is not worth credence for a judicial mind as already discussed while dealing the case of Mr. Bal Chand and the preponderance of probabilities in this case also, as already discussed, support the case of the workman. In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the workman to the tune of Rs.1,28,000/ (Rupees One Lac Twenty Eight Thousand only) in lieu of reinstatement / loss on account of illegal termination of his services payable by the managements jointly and severally to the workman would meet the ends of justice. Ordered accordingly. SERIAL NO. 05 JHINAK Workman at Serial Number 05 appeared in witness box as WW3 Jhinak and in his evidence affidavit deposed that he was working with management as 'Polisher' since November 1987 and his last drawn wages were Rs.1690/. As per averment made in statementofclaim that his services were terminated on 05.07.1995. In his cross examination WW3 Jhinak has been made to depose as follows: "I understand the contents of my affidavit which is explained by my advocate. The affidavit is signed by me in TisHazari. I have not signed any register at the time of signing of affidavit. I worked with the M/s Vadera Furniture Pvt. Ltd. I also worked with M/s Sunita Vadera and Associates. I have o documentary proof to show that I was employed with Page 23 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Bal Chand & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 76/06 above said management. It is wrong to suggest that working place is different of both the management. I was not issued any appointment letter by the management. It is wrong to suggest that salary was not given by the management. I do not remember how much salary I was getting from the management. I have no documentary proof to show that I was getting alleged salary from the management. I was working as a polisher with the management. I have no degree of diploma as polisher. I was working as a polishar before joining the management. I was working the same work in some other place. It is wrong to suggest that I never worked as a polisher before the alleged job with the management. It is wrong to suggest that I do not know how to do the polishing. I was removed from the service by the management. After termination from service I am doing the polishing work on casual basis. My house hold expenditure is Rs.1600/ per month. I am married and having two children. I am staying in Delhi at Sangam Vihar. It is wrong to suggest that management has engaged to work at park Royal Hotel. It ias wrong to suggest that my engagement was over after the work was over at Park Hotel. It is wrong to suggest that my engagement was over after the work was over at Park Hotel. It is wrong to suggest that when any order used to come to management then only work was assigned to me. It is wrong to suggest that there was no work with the management. I am not aware whether any workman has settled full and final settlement with the management. It is wrong to suggest that management execute the order by engaging contractors. It is wrong to suggest that I was working with contractor. It is correct that polishing work was done by item wise. It is correct that it was paid item wise. It is wrong to suggest that it was paid according to square feet area. It is wrong to suggest that; contractor raised their bills and paid according to the bills. I used to come to attend the duty at 8 a.m. And used to go home at 8 p.m. It is wrong to suggest that contractor supervised my work. It is wrong to suggest that payment was made by the contractor. Mr. Anand used to make payment. It is wrong to suggest that I used to do the work item wise. It is wrong to suggest that Ram Laxman, Bitori and A.P. Rehman used to supervise my work. It is wrong to suggest that above three persons are contractors. It is wrong to suggest that I did not work throughout the month. The register is maintained by the management. It is wrong to suggest that I leave the job myself and gone to my native village. I do not receive daily Pagar. I worked for both the respondent. It is wrong to suggest that I am deposing falsely." Admittedly, management availed the services of workman. Stand of the management that it availed the services through Contractor is not worth credence for a judicial mind as already discussed while dealing the case of Mr. Bal Chand and the preponderance of probabilities in this case also, as already Page 24 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Bal Chand & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 76/06 discussed, support the case of the workman. In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the workman to the tune of Rs.1,36,000/ (Rupees One Lac Thirty Six Thousand only) in lieu of reinstatement / loss on account of illegal termination of his services payable by the managements jointly and severally to the workman would meet the ends of justice. Ordered accordingly. 8 A. If the abovesaid award amount is not paid to the workman / workmen within one month of the publication of award, workman / workmen shall be entitled to interest on the award amount @ 9% per annum from the date of the award till its payment by the management(s).
9. Each of the abovesaid workmen who have been granted lump sum compensation as above by this Court are also held to be entitled to receive a sum of Rs.20,000/ (Rupees Twenty Thousand only) (each) from the management as cost of litigation.
10. Reference is answered accordingly.
11. A copy of the award be sent to the Office of the Deputy Labour Commissioner (District West) for further necessary action.
12. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 22.03.2014
(ANAND SWAROOP AGGARWAL)
POLCXI, Karkardooma Courts, Delhi
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POLC- XI / KKD / DELHI / 22.03.2014