Delhi District Court
Whether There Was Relationship Of ... vs State Of Tamil Nadu And Ors on 5 February, 2011
IN THE COURT OF DR. T. R. NAVAL ADDITIONAL DISTRICT
& SESSIONS JUDGE / PRESIDING OFFICER LABOUR COURT
KARKARDOOMA COURTS, DELHI
ID NO. 61/10 (New) 1145/98(Old)
Date of Institution : 18.11.1998
Date of Arguments : 21.01.2011
Date of Award : 05.02.2011
IN THE MATTER BETWEEN:
I. M/s Babu Lal Rajendar Kumar
252, Okhla Industrial Estate,
Phase-III, New Delhi-20
The management
AND
ITS WORKMEN
Shri Ramesh Kumar Sharma-I & Others
C/o Delhi State Kamgar Union,
Balmukund Khand, Giri Nagar,
Kalkaji, New Delhi-19
The workmen
AND
O.P. No. 1/10(New) 1/99 (Old)
Date of Institution : 28.04.1999
Date of Arguments : 21.01.2011
Date of Award : 05.02.2011
II. M/s Babu Lal Rajender Kumar
252, Okhla Industrial Area,
Phase-III, New Delhi.
The Management
AND
Sh. Ramesh Kumar Sharma &
Sh. Kalpnath Yadav
C/o Delhi State Kamgar Union
Balmukund Khand, Giri Nagar,
Kalkaji, New Delhi. The workmen
ID No.61/10 Page 1 of 34
AWARD
This common award cum order will dispose of above
mentioned ID No.61/10, here in after referred to as the 1st case,
and O.P. No. 1/10, i.e., an application U/s 33 (2) (b) of the
Industrial Disputes Act, 1947 here in after referred to as the Act
filed by workman on 26.04.1999, here in after referred to as the
2nd case.
2. The Secretary (Labour), Government of NCT of Delhi vide its
order No.F.24(5636)/98-Lab./37781-85 dated 12.11.1998 referred
an industrial dispute between the above mentioned parties to
the Labour Court with the following terms of reference:
"Whether the services of workmen shown in Annexure 'A'
have been terminated illegally and/or unjustifiably by the
management, and if so, to what relief is he entitled and
what directions are necessary in this respect?"
ANNEXURE 'A'
Sl. Name of the Workmen Sl. Name of the Workmen
No. No.
01. S/Sh. Ramesh Kumar Sharma-I 12. Radhey Shyam
02. Jaidev Mukherjee 13. Nitin Nath
03. Kalp Nath 14. Rajenderan
04. Jai Ram Shah 15. Dhruv Banerjee
05. Gopi Nath 16. Lakhpat
06. Rajender Sharma 17. Amit Patra
07. Deep Chand 18. Kanti Prasad
08. Ramesh Kumar Sharma-II 19. Sandeep Gupta
09. Jumman Seikh 20. Hemant Sharma
10. Pehlad Banerjee 21. Kishan Bahadur
11. Dhanju Ram
ID No.61/10 Page 2 of 34
2. Although the reference was received in respect of 21
workmen yet only 15 workmen filed their common statement of
claim in the Ist case. It has been alleged that the workmen had
been working with the management on the post, as shown in
column No.3, on their last drawn salary, as shown in column No.4
and the duration of their service, as shown in column No. 5, in
Table -A mentioned here in below:
TABLE-'A'
Sl. Name of Workman Post Last Duration
No. S/Sh. Drawn
Salary
1 Ramesh Kr.Sharma-I Shift Incharge Rs.4750/- 1986
2 Jaidev Mukherjee Shift Incharge Rs.3675/- 1988
3 Kalp Nath Chowkidar Rs.1937/- 1988
4 Jai Ram Shah Helper Rs.1937/- 1988
5 Gopi Nath Machine Operator Rs.2,200/- 1985
6 Rajender Sharma Machine Operator Rs.2,350/- 1990
7 Deep Chand -- -- --
8 Ramesh Kr. Sharma-II Machineman Rs.1937/- --
9 Jumman Seikh -- -- --
10 Pehlad Banerjee Helper Rs.1,937/- 1990
11 Dhanju Ram Machineman Rs.1937/- 1989
12 Radhey Shyam Helper Rs.1937/- 1991
13 Nitin Nath Helper Rs.1937/- 1996
14 Rajenderan -- -- --
15 Dhruv Banerjee Machineman Rs.1937/- 1990
16 Lakhpat Machineman Rs.1937/- 1990
17 Amit Patra -- -- --
18 Kanti Prasad Helper Rs.1937/- 1984
19 Sandeep Gupta -- -- --
ID No.61/10 Page 3 of 34
Sl. Name of Workman Post Last Duration
No. S/Sh. Drawn
Salary
20 Hemant Sharma -- -- --
21 Kishan Bahadur Helper Rs.1937/- 1991
3. Although the workman were performing their duties
satisfactorily and did not give any chance of complaint to the
management yet the management illegally and unjustifiably
refused to give them duties w.e.f. 04.09.1998 as they were
demanding implementation of various labour laws e.g., ESI, PF,
Gratuity Act and other labour laws. They were also protesting
through their union against the non implementation of statutory
laws and they also filed applications before the labour
department and the labour inspector repeatedly visited the
establishment of the management. In order to cover their
misdeeds, the management filed an application U/s 33(2) of the
the Act, against the workman Sh. Ramesh Kumar Sharma-I and
Kalpnath Yadav. It was pleaded that charge sheet was served
upon them. Inquiry was conducted against them and they were
found guilty in the inquiry proceedings. The true facts were that
even the date of inquiry was not informed to them. Besides, the
management was indulging in unfair labour practice by not
keeping service record of the workman and running their
factories under different names viz. M/s Mitsumi Electronics, M/s
Sparton Sales Corporation at the same premises. The workman
issued demand notice dated 14.09.1998 to the management but
no reply was received by them. The management violated
provisions of Section 2(oo) and 25 F, G & H of the Act and
ID No.61/10 Page 4 of 34
principles of natural justice. The management neither issued
any charge sheet nor conducted any inquiry against them and
they were summarily discharged from their service. They also
made various complaints to the labour department. Labour
Inspector visited the establishment of the management but the
management refused to take them on duty. The conciliation
proceedings also failed. The workman has been without
employment since the date of transfer of their services. The
workmen prayed for passing an award in their favour and against
the management for their reinstatement in service with full back
wages.
4. The management admitted that workman Ramesh Kumar
Sharma, serial no.1 and Sh. Kalpnath, serial No.3, Sh. Gopinath,
serial No.5, Sh. Dhruv Bannerjee, serial No.15 and Sh. Lakhpat
Singh, serial No.16 were employees of the management. Sh.
Ramesh Kumar Sharma and Sh. Kalpnath committed grave
misconduct and therefore, their services were terminated after
holding a domestic inquiry w.e.f. 26.04.1999 and an application
seeking approval thereof is pending for decision. Workman Sh.
Gopinath absented himself from his duties unauthorisedly w.e.f.
02.09.1998. Sh. Dhruv Bannerjee and Sh. Lakhpat were
appointed temporarily on probation w.e.f. 02.03.1998 and
08.04.1998, respectively. They absented from their duties w.e.f.
02.09.1998. They did not complete 240 days in service of the
management. Therefore, they were discharged simplicitor from
their service w.e.f. 01.12.1998 and 07.12.1998, respectively. Sh.
Dhruv Bannerjee and Sh. Lakhpat Singh were only helpers. Sh.
ID No.61/10 Page 5 of 34
Gopi Nath was working as Assistant Moulding Machine Operator.
Sh. Ramesh Kumar Sharma was working as Moulding Machine
Operator. Last drawn salary of Sh. Ramesh Kumar Sharma was
Rs.2361, salary of Sh. Gopi Nath was Rs.2103/-, salary of Sh.
Dhruv Bannerjee and Lakhpat was Rs.1937/- per month. It was
also contended on behalf of the management regarding
remaining ten workmen that there was no relationship of
employer and employee between the parties. The management
denied all other material allegations and prayed for dismissal of
their common statement of claim.
5. The workmen in their rejoinder controverted the
contentions made in the WS and reiterated the averments made
in the statement of claim.
6. On the pleadings of the parties, following issues were
framed:
1. Whether there was relationship of employer and
employee between the parties mentioned in para-I of
WS?
2. Whether services of the workmen were terminated
illegally and/or unjustifiably?
3. Relief.
7. In the 2nd case, the facts in brief of the applicant case are
that above mentioned workmen were employed by the
management and due to their grave misconduct they were
charge sheeted. When no reply to the charge sheet was
received, a domestic enquiry was held by the management as
ID No.61/10 Page 6 of 34
per the principles of natural justice. Enquiry Officer after
conducting the enquiry prepared a report and sent the same to
the management/applicant. After considering the enquiry report
carefully, the management/applicant issued a show cause notice
dated 17.04.1999 to the workmen as to why they should not be
dismissed from their services. No reply to the show cause notice
was received. The management/applicant then decided to
dismiss the services of both the workmen. The present
application u/s 33 (2) (b) has been filed by the management as a
matter of abundant caution and without prejudice to the rights of
the management/applicant. The management/applicant has
issued a dismissal order dated 26.04.1999 and has also remitted
one month wages of the workmen in lieu of notice. It was also
prayed that in case enquiry issue is decided against the
management, then the management may be afforded an
opportunity to prove the charges in the court and the action of
management/applicant to dismiss Shri Ramesh Kumar and Sh.
Kalpnath Yadav may be approved.
8. The workmen admitted that they were employed by the
management/applicant. The workmen denied all the allegations
levelled by the management against the workmen and submitted
that no charge sheet was ever issued or served upon either of
them. Thus, the management never gave any chance of
submitting any reply by them. The alleged enquiry was
conducted at the back of the workmen in violation of principles
of natural justice. The application has been moved by the
management with malafide intention to victimize the workmen.
ID No.61/10 Page 7 of 34
The management had already terminated their services on
04.09.1998 alongwith other 19 workmen. The management also
failed to comply the mandatory provisions of Section 33 2(b) of
the ID Act as one month wages were never paid to them. They
should be given chance to go through the enquiry report and to
lead the evidence. The workmen prayed that the order of
dismissal of their services by the management/applicant may be
disapproved.
9. In order to prove the 1st case, the workmen examined
themselves as mentioned in Table-B.
TABLE-'B'
Sl. Name of Sl. No. of Number of Affidavit
No. Witness Ann. A Witness proved as
Examined
01. Ramesh 1 WW1 Ex.WW1/A
Kr.Sharma S/o
Shiv Narain
02. Jairam Shah 4 WW2 Ex.WW1/B
03. Rajinder Sharma 6 WW3 Ex.WW1/C
04. Ramesh 8 WW4 Ex.WW1/D
Kr.Sharma S/o
Tirath Ram
05. Kanti Prasad 18 WW5 Ex.WW1/E
06. Prehlad Banerjee 10 WW6 Ex.WW1/F
07. Jaidev Mukherjee 2 WW7 Ex.WW1/G
08. Gopi Nath 5 WW8 Ex.WW1/H
09. Nitin Nath 13 WW9 Ex.WW1/I
10. Dhruv Bannerjee 15 WW10 Ex.WW1/J
11. Radhey Shyam 12 WW11 Ex.WW1/K
12. Dhanju Ram 11 WW12 Ex.WW1/L
ID No.61/10 Page 8 of 34
All these 12 WWs also relied on documents Ex.WW1/1 to
Ex.WW1/28.
In its defence the management examined Shri Shailender
Gupta, Partner of the management as MW1. He filed and proved
his affidavit as Ex. MW1/A and proved documents Ex. MW1/1
(collectively for 158 pages). The management also examined Sh.
Harender Singh, LDC from ESI Department as MW2. He filed and
proved report as Ex.MW2/A and declaration in respect of Sh. Jai
Dev Mukherjee as Ex.MW2/1 and Sh. Jai Ram as Ex.MW2/2.
In the 2nd case the management examined Sh. Naresh
Bansal, Advocate as AW1. He filed and proved his affidavit as Ex.
AW1/A and relied on documents Ex.AW1/1 to AW1/10.
10. My Ld. Predecessor vide order dated 24.04.2000
consolidated both the cases. It was ordered that evidence will be
recorded in the 1st case and it will be read in both the cases.
11. After closing of evidence of the parties, I have heard final
arguments of Authorized Representative/Counsel for both the
parties and perused file.
12. When this case was pending at the stage of management
evidence, Sh. Kanti Prasad, workman at Sl. No. 5 expired. On
application, filed by his LRs, Smt. Sushma Devi, widow and Ms.
Sunita, daughter were allowed to be substituted in his place.
13. On perusal of the pleadings of the parties, analysing the
evidence and material placed on record and considering
ID No.61/10 Page 9 of 34
arguments addressed by Authorized Representative/Counsel for
the parties, I have formed my opinion on the issues and that are
discussed here in below issue-wise:
FINDINGS ON ISSUE NO.1
14. As stated above, the management has admitted the
relationship of employer and employees between the
management and Sh. Ramesh Kumar Sharma, workman at Sl. No.
1, Sh. Kalpnath, workman at Sl. No. 3, Sh. Gopinath, workman at
Sl. No.5, Sh. Dhruv Bannerji, workman at Sl. No. 15, and Sh.
Lakhpat Singh, workman at Sl. No. 16. The management denied
relationship of employer and employee between the
management and remaining workmen i.e. Sh. Jai Dev Mukerjee,
workman at Sl. No. 2, Sh. Jai Ram Shah, workman at Sl. No. 4, Sh.
Rajender Sharma, workman at Sl. No. 6, Sh. Deep Chand,
workman at Sl. No. 7,Sh. Ramesh Kumar Sharma-II, workman at
Sl. No.8, Sh. Jumman Sheikh, workman at Sl. No.9, Sh. Pehlad
Bannerjee, workman at Sl. No. 10, Sh. Dhanjoo Ram, workman at
Sl. No. 11, Sh. Radhey Shyam Yadav, workman at Sl. No. 12, Sh.
Nitin Nath, workman at Sl. No. 13, Sh. Rajenderan, workman at
Sl. No. 14, Sh. Amit Patra, workman at Sl. No. 17, Sh. Kanti
Prasad, workman at Sl. No. 18, Sh. Sandeep Gupta, workman at
Sl. No. 19, Sh. Hemant Sharma, workman at Sl. No. 20 and Sh.
Kishan Bahadur, workman at Sl. No. 21. As the workman Sh.
Kishan Bahadur, workman at Sl. No. 21 has failed to examine
himself in support of his case, therefore, it has only to be seen
whether there was relationship of employer and employee
between the management and remaining workmen namely Sh.
ID No.61/10 Page 10 of 34
Jai Dev Mukherjee, workman at Sl. No. 2, Sh. Jai Ram Shah,
workman at Sl. No. 4, Sh. Rajender Sharma, workman at Sl. No. 6,
Sh. Ramesh Kumar Sharma-II, workman at Sl. No.8, Sh. Pehlad
Bannerjee, workman at Sl. No. 10, Sh. Dhanjoo Ram, workman at
Sl. No. 11, Sh. Radhey Shyam Yadav, workman at Sl. No. 12, Sh.
Nitin Nath, workman at Sl. No. 13 and Sh. Kanti Prasad, workman
at Sl. No. 18, hereinafter referred to as these 9 workmen.
15. It has been argued on behalf of the management that these
9 workmen had never been in employment of the management.
These workmen have failed to produce any document regarding
their employment in the management. The management relied
on a case Workmen of Nilgiri Coop. Marketing Society Lt.
vs. State of Tamil Nadu and Ors., 2004 LLR 351, wherein the
Hon'ble Supreme Court observed that:
"33. Determination of the vexed questions as to whether a
contract is a contract of service or contract for service and
whether the concerned employees are employees of the
contractors has never been an easy task. No decision of this
Court has laid down any hard and fast rule nor it is possible to
do so. The question in each case has to be answered having
regard to the fact involved therein. No single test be it control
test be it organization or any other test has been held to be the
determinative factor for determining the Jural relationship of
employer and employee.
34. There are cases arising on the borderline between what is
clearly an employer employee relation and what is clearly the
independent entrepreneurial dealing."
16. It has been argued that these workmen had to prove that
they were under the employment of management for the period
of more than 240 days in a calendar year but they have failed to
prove the same. Counsel for the management further relied on a
ID No.61/10 Page 11 of 34
case Range Forest Officer Vs. S.T. Hadimani, 2002 (3) SCC
25, wherein Hon'ble Supreme Court while dealing with the
question of proof of employment observed as under:-
"2. In the instant case, dispute was referred to the Labour Court
that the respondent had worked for 240 days and his service
had been terminated without paying him any retrenchment
compensation. The appellant herein did not accept this and
contended that the respondent had not worked for 240 days.
The Tribunal vide its award dated 10.8.1998 came to the
conclusion that the service had been terminated without giving
retrenchment compensation. In arriving at the conclusion that
the respondent had worked for 240 days the Tribunal stated
that the burden was on the management to show that there
was justification in termination of the service and that the
affidavit of the workman was sufficient to prove that he had
worked for 240 days in a year.***
In our opinion the Tribunal was not right in placing the onus on
the management without first determining on the basis of
cogent evidence that the respondent had worked for more than
240 days in the year preceding his termination. It was the case
of the claimant that he had so worked but this claim was denied
by the appellant. It was then for the claimant to lead evidence
to show that he had in fact worked for 240 days in the year
preceding his termination. Filing of an affidavit is only his own
statement in his favour and that cannot be regarded as
sufficient evidence for any court or tribunal to come to the
conclusion that a workman had, in fact, worked for 240 days in
a year. No proof of receipt of salary or wages for 240 days or
order or record of appointment or engagement for this period
was produced by the workman. On this ground alone, the
award is liable to be set aside."
17. Counsel for the management further relied on cases
Municipal Corporation, Faridabad vs. Sriniwas, 2004 (103)
FLR, 187 (SC). It was held by the Apex Court that:
"For the said purpose it is necessary to notice the definition of
'Continuous Service' as contained in Section 25-B of the Act. In
terms of sub-Section (2) of Section 25-B that if a workman
during a period of twelve calendar months preceding the date
with reference to which calculation is to be made, has actually
ID No.61/10 Page 12 of 34
worked under the employer 240 days within a period of one
year, he will be deemed to be in continuous service. By reason
of the said provision, thus, a legal fiction is created. The
retrenchment of the respondent took place on 17.05.1995. For
the purpose of calculating as to whether he had worked for a
period of 240 days within one year or not, it was, therefore,
necessary for the Tribunal to arrive at a finding of fact that
during the period between 5.8.1994 to 16.5.1995 he had
worked for a period of more than 240 days. As noticed
hereinbefore, the burden of proof was on the workman."
18. He further relied on a case M. P. Electricity Board vs.
Hariram, 2004 (103) FLR 420 (SC). It was held by the Supreme
Court that burden of proof lies on the workman to show that he
had worked continuously for 240 days in the preceding one year
prior to his alleged retrenchment and for the workman to adduce
an evidence apart from examining himself to prove the factum of
his being in employment of the employer.
19. My attention goes to a case R.M.Yellatti vs. Assistant
Executive Engineer, 2006 (108) FLR 213 SCC. It was held by
Apex Court that:
"Analysing the above decisions of this Court, it is clear that the
provisions of the Evidence Act in terms do not apply to the
proceedings under section 10 of the Industrial Disputes Act.
However, applying general principles and on reading the
aforestated judgments we find that this Court has repeatedly
taken the view that the burden of proof is on the claimant to
show that he had worked for 240 days in a given year. This
burden is discharged only upon the workman stepping in the
witness box. This burden is discharged upon the workman
adducing cogent evidence, both oral and documentary. In cases
of termination of services of daily wages earner, there will be no
letter of appointment or termination. There will also be no
receipt or proof of payment. Thus in most cases, the
workman(claimant) can only call upon the employer to
produce before the Court the nominal muster roll for the
given period, the letter of appointment or termination, if
ID No.61/10 Page 13 of 34
any, the wages register, the attendance register etc.
Drawing of adverse inference ultimately would depend
thereafter on facts of each case. The above decisions
however make it clear that mere affidavits or self serving
statements made by the claimant/workman will not suffice in
the matter of discharge of the burden placed by law on the
workman to prove that he had worked for 240 days in a given
year. The above judgments further lay down that mere non-
production of muster rolls per se without any plea of
suppression by the claimant workman will not be the ground for
the Tribunal to draw an adverse inference against the
management. Lastly, the above judgments lay down the basic
principle, namely, that the High Court under Article 226 of the
Constitution will not interfere with the concurrent findings of
fact recorded by the Labour Court unless they are perverse. This
exercise will depend upon facts of each case."
[Emphasis added]
20. As per principles of law laid down in above mentioned
cases, particularly the case of R.M.Yellatti vs. Assistant
Executive Engineer (supra), the initial burden to prove was on
the workman that there was relationship of employer and
employees between the parties. Thereafter the burden to prove
that there was no relationship of employer and employee
between the parties, was on the management as the
management specifically pleaded that fact.
21. On analyzing the evidence on record, I came to the
conclusion that the evidence and material placed on record has
established that there was relationship of employer and
employees between the parties. The reasons which support my
decision, are firstly, that MW1 in his cross examination stated
that he did not remember whether any quarrel took place on
10.11.1998 in the factory premises and he did not have
knowledge whether any criminal case on the complaint of the
ID No.61/10 Page 14 of 34
workmen is pending against Sh. Nagender Gupta and Kshitij
Gupta. He admitted that the management had filed a suit for
permanent injunction against Delhi State Kamgar Union and its
14 workmen. He also admitted that copy of that suit was
Ex.MW1/W1 and it bore his signatures. On perusal of Ex.MW1/W1,
I find that management filed a suit for permanent injunction not
only against Delhi State Kamgar Union but also against Sh.
Ramesh Kumar Sharma, workman at Sl. No.1, Sh. Jaidev
Mukherji, workman at Sl. No.2, Sh. Kalpnath Yadav, workman at
Sl. No.3, Sh. Rajender Sharma, workman at Sl. No.6, Sh.
Deepchand Kashyap, workman at Sl. No.7, Sh. Dhanjoo Ram,
workman at Sl. No.11, and Sh. Radhey Shyam Yadav, workman at
Sl. No.12. MW1 further admitted that a criminal case was also
pending against Sh. Jaidev and other workmen. He also admitted
that copy of the charge sheet of that incident was Ex.MW1/W-2. I
perused Ex.MW1/W-2 and find that it is a copy of charge sheet
u/s 173 Cr.P.C. Sh. Nagender Gupta is the complainant in that
charge sheet and Sh. Jaidev, Sh. Niranjan, Sh. Ram Naresh Morya
and Sh. Jai Ram Shah were the accused. It has been mentioned
therein that all these workers were demonstrating in front of the
factory. They entered into the factory, beat the complainant Sh.
Nagender Gupta and Sh. Kshitij Gupta. Although in his cross
examination, MW1 stated that those persons were not the
employees of the management yet, it could not be explained
satisfactorily as to why Sh. Nagender Gupta addressed them
before the police as workers. Ex.MW1/W1 and Ex.MW1/W2 have
made it clear that the persons shown in those documents as
defendants or accused persons, respectively, were
ID No.61/10 Page 15 of 34
employees/workers of the management. This has established
relationship of employer and employee between the
management and the workmen Sh. Ramesh Kumar Sharma,
workman at Sl. No.1, Sh. Jaidev Mukherji, workman at Sl. No.2,
Sh. Kalpnath Yadav, workman at Sl. No.3, Sh. Jai Ram Shah,
workman at Sl. No. 4, Sh. Rajender Sharma, workman at Sl. No.6,
Sh. Dhanjoo Ram, workman at Sl. No.11, and Sh. Radhey Shyam
Yadav, workman at Sl. No.12.
22. Secondly, workmen placed a letter received by Sh. Radhey
Shyam Yadav, workman at Sl. No. 12 at the premises of the
management. This document further supported claim of the
workmen that Sh. Radhey Shyam Yadav, workman received that
document at the premises of the management.
23. Counsel for the management relied on a case reported as
Suresh Bhati and ors. vs. Kapil Industries and ors., WP(C)
No. 11634-46/2006 and argued that this document cannot be
considered for deciding the relationship of employer and
employees between the parties. It was held by Delhi High Court
that:
"The onus to prove the relationship is squarely on the employee
or the workman who comes to the Labour Court to claim a relief
under the Industrial Disputes Act and non production of
document like muster roll cannot lead to a finding in favour of
workman."
24. I am of the view that if this document is not supported by
any other evidence, then this document itself will not prove the
ID No.61/10 Page 16 of 34
employer-employee relationship but certainly this document can
corroborate and support the case of workmen in proving
relationship, if supported by other evidence. In the present case,
this document has further strengthened the case of Sh. Radhey
Shyam Yadav, workman at Sl. No.12 as his name has also been
mentioned in document Ex.MW1/W1.
25. Thirdly, the workmen who examined themselves as WW1 to
WW12 in their statements proved not only copy of demand
notice dated 19.09.1998 sent to the management as Ex.WW1/1;
copies of complaints dated 17.04.1998, 20.08.1998, 02.09.1998,
04.09.1998, 04.09.1998 and 17.09.1998 to the Police Post
Incharge, Okhla Industrial Area as Ex.WW1/3, Ex.WW1/5,
Ex.WW1/8, Ex.WW1/11, Ex.WW1/12 and Ex.WW1/16 respectively;
copy of notice dated 19.08.1998 to the management as
Ex.WW1/4; copy of complaint dated 25.08.1998 by the Union of
the workmen to the Regional Director, ESI Corporation as
Ex.WW1/6; copies of complaints dated 11.09.1998, 02.09.1998,
03.09,1998, 14.09.1998, 18.09.1998 and 22.09.1998 to the
Labour Officer as Ex.WW1/7, WW1/9, WW1/10, WW1/14, WW1/18
and Ex.WW1/19 respectively; copy of notice dated 08.09.1998 of
the workmen to the Director M/s Mit Sumi India Pvt. Ltd. as
Ex.WW1/13 but also proved on record copy of complaint dated
17.09.1998 to the Police Commissioner as Ex.WW1/15 and
photocopy of ESI Identity Card issued to Sh. Jai Ram, as Ex.
WW1/21A and copies of Labour Inspector's reports dated
04.09.1998 as Ex.WW1/21, 04.09.1997 as Ex.WW1/22,
09.09.1998 as Ex.WW1/23, 10.09.1998 as Ex.WW1/24,
ID No.61/10 Page 17 of 34
18.09.1998 as Ex.WW1/25, 20.10.1998 as Ex.WW1/26,
22.06.1998 as Ex. WW1/27, statement of claim filed by the Union
of the workmen before the conciliation officer as Ex.WW1/28.
The Labour Inspector's reports contain the names of workmen
Sh. Ramesh Kumar Sharma, workman at Sl. No.1, Sh. Jaidev
Mukherji, workman at Sl. No.2, Sh. Kalpnath Yadav, workman at
Sl. No.3, Sh. Jai Ram Shah, workman at Sl. No. 4, Sh. Gopinath,
workman at Sl. No. 5, Sh. Pehlad, workman at Sl. No. 10, Sh.
Dhanjoo Ram, workman at Sl. No.11, Sh. Hemant, workman at Sl.
No. 20. It has been mentioned therein that he made efforts but
the management failed to reinstate them in services or pay their
wages. MW1 in his cross examination expressed his ignorance
and deposed that he could not say if any labour inspector visited
the management on 22.06.1998 to get the workmen reinstated.
This has further supported the case of the workmen that the
above mentioned workmen had been working with the
management.
26. Fourthly, MW1 in his cross examination, admitted that three
units were working in the premises No.252, Okhla Industrial
Estate, New Delhi. He also deposed that he was under the
impression that the workmen were the employees of another
establishment who were being run by his cousin. He expressed
his ignorance about the details of the workers who were working
with M/s Sparton Sales Corporation and M/s Mit Sumi India
Private Limited. He admitted that a firm M/s R.S.M.Industries was
also functioning in the said premises. He expressed his
ignorance whether his mother Ms. Bimla Gupta was the
ID No.61/10 Page 18 of 34
proprietor of R.S.M.Industries or whether that firm was using his
fax and telephone numbers.
27. It has been argued on behalf of the workmen that there
was functional integrality between all the three establishments
as they were being run by the family members. Their telephone
numbers, office address and fax numbers were the same. MW1
admitted that all the three factories were being run in the same
premises. MW1 also admitted in his cross examination that one
of the other concerns was being run by his cousin.
28. My attention goes to a case Bennett, Coleman & Co. Ltd.
v. Regional Provident Fund Comm., (Rajasthan)(DB)(Jaipur
Bench), 2008(4) S.C.T. 255 : 2008 L.I.C. 2434 : 2008(3) L.L.J.
782. The Rajasthan High Court observed as under:
"15. The Supreme Court in A.C.C. v. Their Workmen,
1960(1) LLJ 1 : (AIR 1960 SC 56) was called upon to decide
whether the cement factory and a lime stone quarry situated at
two different places could be treated as one establishment. The
lime stone quarry was situated at a distance of one and half
miles from the cement factory. It was held that there was unity
of purpose and functional integrity between quarry and the
factory. The Supreme Court held that the tests which could be
applied to decide as to what constitutes one establishment
would be unity of ownership, unity of management, supervision
and control, unity of finance and employment, unity of labour
and service conditions, functional integrity , general unity of
purpose and geographical proximity.
16. In South India Mill Owners' Association v. Coimbatore
District Textile Workers Union, AIR 1962 SC 1221, the
Supreme Court again held that several factors are relevant in
dealing with such problem. However, significance of several
relevant factors would not be the same in each case. Unity of
ownership, management and control would be a relevant factor.
ID No.61/10 Page 19 of 34
General unity or functional may also be relevant factor. Unity of
finance may not be an irrelevant factor. Geographical proximity
may also be of some relevance. In some cases, the test would
be whether one concern forms integral part of another so that
together they constitute one concern. Their Lordships held that
the nexus of integration in the form of some essential
dependence of the one on the other may assume relevance.
Similarly , unity of purpose or design or even parallel or co-
ordinate activity intended to achieve a common object for the
purpose of carrying out the business of the one or the other may
also assume relevance and importance.
17. The Supreme Court in Regional Provident Fund
Commissioner, Jaipur v. Naraini Udyog and others,
(1996)5 SCC 522 while reversing the judgment passed by this
Court and restoring the order passed by the Commissioner in
somewhat identical circumstances made similar observations. In
that case, the Commissioner found that units had a common
branch at Bombay and common telephone at Kota for residence
and factory. Office of one unit was situated in the premises of
the other and accounts of both the units were maintained by the
same set of clerks. In those facts, the Commissioner held that
both of them constituted one establishment. It was held by the
Supreme Court that even if they were separately registered
under Factories Act, the Sales Tax Act, the ESIC Act and are
located at a distance of 3 Kms., in totality of circumstances,
they would still be liable to be treated as same establishment.
18. In M/s. Rajasthan Prem Krishan Goods Transport Co. (1997
Lab IC 146), supra, the Supreme Court on analysis of the
findings recorded by Regional Provident Fund Commissioner
held that there was unity of purpose of the two units therein on
each count in as much as the place of business is common, the
management is common and the letter heads bear same
telephone numbers and 10 out of 13 partners of the appellant
firm are common and further that the trucks plied by the two
entities are owned by the partners and are being hired through
both the units. It was further found that respective employees
engaged by two entities when added together bring the
integrated entities within the grip of Act. On facts it was held
that a legitimate inference can be drawn that they were one
unit. It was held that Regional Provident Fund Commissioner
could "pierce the veil and read between the lines without the
outwardliness of the two apparents."
19. When we apply the law as consistently laid down by the
Supreme Court in the judgements referred to above, we find
that there are some such factors in the case in hand, on the
ID No.61/10 Page 20 of 34
basis of which the legitimate inference could be drawn by the
Commissioner that the three companies referred to above have
functional integrity and unity of purpose. Mere separate
incorporation and registration of these companies under the
Indian Companies Act and under very many other enactments,
could not make them different units. The Regional Provident
Fund Commissioner, in our view, was well within his rights to
pierce the veil and read between the lines without the
outwardliness of the two apparents. He had ample to arrive at
such a satisfaction in the scope of Section 2A read with Section
7A of the Act while deciding the claim of infancy made by the
appellants."
29. The principles of law laid down in this case also support the
case of the workmen as proximity of all the three establishments
referred to herein above, and their control by close relative, their
common facilities such as telephone number, lead to the
presumption that there was functional integrality of all the
above mentioned three establishments including the
management.
30. Fifthly, although the management filed and proved
photostat copies of record of register, employment and
remuneration collectively as Ex.MW1/1, yet the management has
failed to file and prove record of all the three concerns working
at the said premises in spite of the fact that there was functional
integrality of all these three concerns and these concerns were
being run by family members of the management. In these
circumstances an adverse presumption is drawn under Section
114(g) of Indian Evidence Act to the effect that entire record was
not produced as it was favourable to the workmen.
ID No.61/10 Page 21 of 34
31. Sixthly, I have also perused the testimonies of MW i.e.
statement of Sh. Harender Singh, LDC from ESI who proved
declaration of Sh. Jai Dev Mukherji, workman at Sl. No. 2 and Sh.
Jai Ram, workman at Sl. No.4 as Ex.MW2/1 and Ex.MW2/2,
respectively. On perusal thereof I am of the view that these will
not provide any benefit to the management for demolishing the
case of these workmen.
32. Lastly, the workmen as mentioned in Table-B examined
themselves in support of their case as WW1 to WW12. WW1 in
his affidavit Ex.WW1/A, interalia stated that he had been working
with the management since 1986 on the post of Shift Incharge
and his last drawn salary was Rs.3375/- per month. WW2 in his
affidavit Ex.WW1/B, interalia stated that he had been working
with the management since 1988 on the post of Helper and his
last drawn salary was Rs.1937/- per month . WW3 in his affidavit
Ex.WW1/C, interalia stated that he had been working with the
management since 1991 on the post of Machine Operator and his
last drawn salary was Rs.2350/- per month. WW4 in his affidavit
Ex.WW1/D, interalia stated that he had been working with the
management since 1991 on the post of Operator and his last
drawn salary was Rs.1937/- per month. WW5 in his affidavit
Ex.WW1/E, interalia stated that he had been working with the
management since 1984 on the post of Helper and his last drawn
salary was Rs.1937/- per month. WW6 in his affidavit Ex.WW1/F,
interalia stated that he had been working with the management
since 1990 on the post of Helper and his last drawn salary was
Rs.1937/- per month. WW7 in his affidavit Ex.WW1/G, interalia
ID No.61/10 Page 22 of 34
stated that he had been working with the management since
1988 on the post of Shift Incharge and his last drawn salary was
Rs.3675/- per month. WW8 in his affidavit Ex.WW1/H, interalia
stated that he had been working with the management since
1985 on the post of Machine Operator and his last drawn salary
was Rs.2200/- per month. WW9 in his affidavit Ex.WW1/I,
interalia stated that he had been working with the management
since 1996 on the post of Helper and his last drawn salary was
Rs.1937/- per month. WW10 in his affidavit Ex.WW1/J, interalia
stated that he had been working with the management since
1990 on the post of Machine Man and his last drawn salary was
Rs.1937/- per month. WW11 in his affidavit Ex.WW1/K, interalia
stated that he had been working with the management since
1991 on the post of Helper and his last drawn salary was Rs.
1937/- per month. WW12 in his affidavit Ex.WW1/L, interalia
stated that he had been working with the management since
1989 on the post of Machine Man and his last drawn salary was
Rs.1937/- per month. All of them deposed that the management
terminated their services on 04.09.1998. In their cross
examinations nothing could come out which could establish that
they were not the employees of the management.
In view of the reasons, discussion and evidence on record
and particularly discussed here in above, this issue is decided in
favour of these 9 workmen and against the management.
FINDINGS ON ISSUE NO.2
33. It has been established under the findings of issue no. 1
that these 9 workmen were in the employment of the
ID No.61/10 Page 23 of 34
management. WW2 in his affidavit Ex.WW1/B stated the period
of his service from 1988 till 04.09.1998. WW4 in his affidavit
Ex.WW1/D told the length of his service with the management
from 1991 to 04.09.1998. WW6 in his affidavit Ex.WW1/F
mentioned the tenure of his service with the management from
1990 till 04.09.1998. WW8 in his affidavit Ex.WW1/H stated the
period of his service with the management since 1985 to
04.09.1998. WW10 in his affidavit Ex.WW1/J mentioned the
tenure of his service since 1990 to 04.09.1998. WW11 in his
affidavit Ex.WW1/K mentioned the length of his service with the
management since 1991 to 04.09.1998. WW12 in his affidavit
Ex.WW1/L stated the period fo his service with the management
since 1989 till 04.09.1998. WW9 in his affidavit Ex.WW1/I
mentioned the period of his service with the management since
1996 till 04.09.1998 and WW5 in his affidavit Ex. WW1/E stated
the period of service with the management since 1994 till
04.09.1998. Their testimonies were found credible and
trustworthy. This has established that these 9 workmen had
been in continuous service of the management for a period of
more than 240 days preceding the date of termination of their
services by the management. It is not the case of the
management that the management either assigned any reason
to them or issued any notice or offered or paid notice pay or
retrenchment compensation. It is also not the case of the
management that the management either served any show
cause notice or charge sheet on these 9 workmen or got
conducted any enquiry against any of them. This has established
that there was violation of provisions of Section 25 F of the Act in
ID No.61/10 Page 24 of 34
termination of services of these 9 workmen by the management.
34. It has been contended on behalf of the management that
Sh. Gopinath, workman at Sl. No. 5, absented himself from his
duties unauthorizedly w.e.f. 02.09.1998. Sh. Gopinath who
examined himself as WW8, in his affidavit Ex. WW1/H stated that
the management terminated his services alongwith other 21
workmen on 04.09.1998. He through his union sent many
complaints to the concerned departments and notice to the
management but the management, instead of reinstating him,
appointed new workers. In cross examination, he denied the
suggestion that the management asked him to join his duty with
the management and he failed to join. In cross examination MW1
stated that when Sh. Gopinath started absenting from duties the
management wrote several letters to him. These letters were
collectively placed on record as mark A. I perused these
documents and find that management has failed to prove these
documents. Besides, MW1 further stated that the management
did not initiate any enquiry proceeding against Sh. Gopinath for
his misconduct of unauthorized absence. In these circumstances,
and on the basis of evidence adduced on record, I am of the view
that the management has failed to prove that Sh. Gopinath,
workman at Sl. No.5 absented himself from his duties
unauthorizedly. Conversely, the evidence on record has
established that there was violation of provisions of Section 25 F
of the Act in termination of services of Sh. Gopinath by the
management.
ID No.61/10 Page 25 of 34
35. It has been argued on behalf of the management that Sh.
Dhruv Bannerjee, workman at Sl. No. 15 and Sh. Lakhpat,
workman at Sl. No. 16, were appointed on probation on
02.03.1998 and 08.04.1998, respectively. They absented from
their duties w.e.f. 02.09.1998. They did not complete 240 days in
service with the management and they were discharged
simplicitor w.e.f. 01.12.1998 and 07.12.1998, respectively. Sh.
Dhruv Bannerjee examined himself as WW10. In his affidavit
Ex.WW1/J he interalia stated that his services were terminated
by the management alongwith other workmen on 04.09.1998.
His examination in chief was recorded on 16.04.2001 but he
failed to appear to face the cross examination. Therefore, the
affidavit of Sh. Dhruv Bannerjee and his part statement is not
admissible in evidence. Sh. Lakhpat, workman at Sl. No. 16 has
failed to examine himself. Therefore, it is held that Sh. Dhruv
Bannerjee, workman at Sl. No. 15 and Sh. Lakhpat, workman at
Sl. No.15 have failed to establish that the management
terminated their services either illegally or unjustifiably.
36. It has been argued on behalf of the management that Sh.
Ramesh Kumar Sharma, workman at Sl. No. 1 and Sh. Kalpnath,
workman at Sl. No.3, committed grave misconduct and the
management got conducted enquiry and it was found in the
enquiry that they committed misconduct. The application of the
management u/s 33 (2) (b) of the Act as per 2nd case is pending
for approval. Their case is being dealt with here in below under
separate heading.
In view of the reasons, discussion and evidence on record
ID No.61/10 Page 26 of 34
and particularly discussed here in above, this issue is decided in
favour of the workmen Sh. Jaidev Mukherji, workman at Sl. No.2,
Sh. Jai Ram Shah, workman at Sl. No. 4, Sh. Gopinath, workman
at Sl. No. 5, Sh. Rajender Sharma, workman at Sl. No. 6, Sh.
Ramesh Kumar Sharma-II, workman at Sl. No. 8, Sh. Pehlad
Bannerjee, workman at Sl. No. 10, Sh. Dhanjoo Ram, workman at
Sl. No.11, Sh. Radhey Shyam Yadav, workman at Sl. No. 12, Sh.
Nitin Nath, workman at Sl. No. 13 and Sh. Kanti Prasad, workman
at Sl. No. 18 and against the management and it is held that the
management terminated their services illegally and unjustifiably.
FINDINGS ON APPROVAL APPLICATION:
37. The burden to prove that the management got conducted
an enquiry against the workmen Sh. Ramesh Kumar Sharma,
workman at Sl. No.1 and Sh. Kalpnath Yadav, workman at Sl. No.
3 fairly, properly and in accordance with the principles of natural
justice was on the management. So far as Sh. Kalpnath Yadav,
workman at Sl. No.3 is concerned, he has failed to examine
himself in support of his case.
38. Section 33 of the Act runs as under:
33.Conditions of service, etc., to remain unchanged under
certain circumstances during pendency of proceedings.***
(2) During the pendency of any such proceedings in respect of
an industrial dispute, the employer may, in accordance with the
standing orders applicable to a workman concerned in such
dispute [or, where there are no such standing orders, in
accordance with the terms of the contract, whether express or
implied, between him and the workman]-
(a) alter, in regard to any matter not connected with the
dispute, the conditions of service applicable to that workman
immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the dispute,
ID No.61/10 Page 27 of 34
discharge or punish, whether by dismissal or otherwise, that
workman:
Provided that no such workman shall be discharged or
dismissed, unless he has been paid wages for one month and
an application has been made by the employer to the authority
before which the proceeding is pending for approval of the
action taken by the employer.***"
39. On analyzing the evidence and material placed on record, I
came to the conclusion that the management is not entitled to
get approval for dismissal of the services of the workman Sh.
Ramesh Kumar Sharma for the reasons firstly, the management
has failed to prove that it complied the mandatory requirement
of payment of one month wages to the workman Sh. Ramesh
Kumar Sharma. MW1 in this regard deposed that he could not
recalll how the subsistence allowance was disbursed to Sh.
Ramesh Kumar Sharma. Ex.MW1/A is silent about the payment of
one month wages to him. Secondly, the management has failed
to prove that Sh. Ramesh Kumar Sharma, workman was aware
about the pendency of enquiry or he received the charge sheet
or intimation about the enquiry proceedings. WW1 in this regard
deposed that he did not receive any charge sheet. He did not
have any knowledge of action taken against him by the
management. He denied the suggestion that he intentionally
avoided to take part in the domestic enquiry and to receive the
show cause notice as well as dismissal order alongwith one
month notice pay. MW1 also failed to support the management
case in this regard. In cross examination, he admitted that no
acknowledgement card was filed by the management regarding
receipt of any kind of communication to the management. He
ID No.61/10 Page 28 of 34
further admitted that he did not direct the management to
confirm the delivery of letters sent by registered post to the
workman. He did not ask the management to serve the workers
with notice in the civil court. The newspaper, Veer Arjun, in which
notice of workman was published was selected by the
management. He expressed his ignorance if newspaper Veer
Arjun was in circulation or not in the locality of the workman. All
these admissions have established that the workman was not
aware about the proceedings. Lastly, the management or his
counsel has failed to put all these letters to the workman Sh.
Ramesh Kumar Sharma during his cross examination. I perused
all the documents Ex. AW1/1 to AW1/10 and enquiry
proceedings. None of the documents could establish that the
workman was aware about the enquiry proceedings or he was
served notice for taking part in enquiry proceedings though the
enquiry officer concluded in his report that the workman failed to
appear despite knowledge of enquiry.
In view of the reasons, discussion and evidence on record
and particularly discussed here in above, it is held that
management is not entitled to get the approval of dismissal of
services of workman Sh. Ramesh Kumar Sharma.
40. The facts admitted need not be proved, provides Section 58
of the Indian Evidence Act. The management has admitted in his
Written Statement that Sh. Ramesh Kumar Sharma-I had been in
the service of the management for a period of more than 240
days. The management has failed to prove that he got
conducted just, fair and proper enquiry against the workman Sh.
ID No.61/10 Page 29 of 34
Ramesh Kumar Sharma-I. It has also been established on record
including affidavit Ex.MW1/A and statement WW1 Sh. Ramesh
Kumar Sharma-I that his services were terminated without
complying the provisions of Section 25 F of the Act. Resultantly
termination of his services are held illegal and unjustified.
FINDINGS ON ISSUE NO. 3: RELIEF
41. In case of Kishan Swaroop Vs. Project and Equipment
Corporation of India Ltd.,MANU/DE/3010/2007 it was held by
Delhi High Court that in each and every case of illegal and
unjustified termination of services, the relief of reinstatement
and full back wages is not to be granted automatically and the
Labour Court can mould the relief by granting lump sum
compensation in lieu thereof.
42. In case of Allahabad Jal Sansthan v. Daya Shankar
Rai,(2005) 5 SCC 124, it was held that:
"6. A law in absolute terms cannot be laid down as to in which
cases, and under what circumstances, full back wages can be
granted or denied. The Labour Court and/or Industrial Tribunal
before which industrial dispute has been raised, would be
entitled to grant the relief having regard to the facts and
circumstances of each case. For the said purpose, several
factors are required to be taken into consideration".
43. In case of Hindustan Tin Works (P) Ltd. v. Employees
(1979) 2 SCC 80 a three-Judge Bench of Apex Court laid down:
"11. In the very nature of things there cannot be a straitjacket
formula for awarding relief of back wages. All relevant
considerations will enter the verdict. More or less, it would be a
motion addressed to the discretion of the Tribunal. Full back
wages would be the normal rule and the party objecting to it
must establish the circumstances necessitating departure. At
ID No.61/10 Page 30 of 34
that stage the Tribunal will exercise its discretion keeping in
view all the relevant circumstances. But the discretion must be
exercised in a judicial and judicious manner. The reason for
exercising discretion must be cogent and convincing and must
appear on the face of the record. When it is said that something
is to be done within the discretion of the authority, that
something is to be done according to the rules of reason and
justice, according to law and not humour. It is not to be
arbitrary, vague and fanciful but legal and regular***"
44. WW1 to WW9 and WW11 and WW12 in their cross
examination stated that they could not get the job elsewhere
despite making efforts to search job. However, they worked
casually and earned about Rs.600/- per month to Rs. 2000/- per
month. In these circumstances, and keeping in view the facts
and circumstances of the present case, and principles of law laid
down in cases Kishan Swaroop Vs. Project and Equipment
Corporation of India Ltd. (supra), Allahabad Jal Sansthan v.
Daya Shankar Rai and Hindustan Tin Works (P) Ltd. v.
Employees (supra), I am of the view that instead of backwages,
it would be just and proper to award them some reasonable lump
sum compensation.
ORDER
45. Consequent upon the decision of all the issues in favour of the workmen Sh. Ramesh Kumar Sharma, workman at Sl. No.1, Sh. Jaidev Mukherjee, workman at Sl. No.2, Sh. Jai Ram Shah, workman at Sl. No. 4, Sh. Gopinath, workman at Sl. No. 5, Sh. Ramesh Kumar Sharma-II, workman at Sl. No. 8, Sh. Pehlad Bannerjee, workman at Sl. No. 10, Sh. Dhanjoo Ram, workman at ID No.61/10 Page 31 of 34 Sl. No.11, Sh. Rahdey Shyam Yadav, workman at Sl. No. 12, Sh. Nitin Nath, workman at Sl. No. 13 and Sh. Kanti Prasad, workman at Sl. No.18 and against the management, terms of reference are answered in favour of these eleven workmen and against the management and it is held that termination of services of these eleven workmen was illegal and unjustified and therefore, they are entitled to get relief. The 2nd case is also decided in favour of the workman Sh. Ramesh Kumar Sharma- I and against the management and it is held that the management was not entitled to get relief as prayed in the 2nd case.
46. As these eleven workmen have suffered legal injury due to illegal action of the management and in the facts and circumstances of the present case, it would not be appropriate to reinstate them in service, therefore, considering all the relevant factors including pay, length of service of the workmen and facts and circumstances of the case, I am of the view that it would be just, fair and appropriate if a compensation of Rs. 1,00,000/- (Rupees One Lakh Only) is awarded in favour of Sh. Ramesh Kumar Sharma-I, workman at Sl. No. 1, Sh. Gopi Nath, workman at Sl. No. 5, and Sh. Kanti Prasad, workman at Sl. No. 18, Rs. 75,000/-(Rupees Seventy Five Thousands Only) is awarded in favour of Sh. Jaidev Mukherjee, workman at Sl. No. 2, and Sh. Jai Ram Shah, workman at Sl. No. 4, Rs. 50,000/-(Rupees Fifty Thousands Only) is awarded in favour of Sh. Rajender Sharma, workman at Sl. No.6, Sh. Ramesh Kumar Sharma-II, workman at Sl. No. 8, Sh. Pehlad Bannerjee, workman at Sl. No. 10, Sh. Dhanjoo Ram, workman at Sl. No. 11, and Sh. Radhey Shyam ID No.61/10 Page 32 of 34 Yadav, workman at Sl. No. 12, Rs. 25,000/- (Rupees Twenty Five Thousands Only) is awarded in favour of Sh. Nitin Nath, workman at Sl. No. 13 and against the management.
47. The appropriate Government is advised to direct the management to pay Rs. 1,00,000/- (Rupees One Lakh Only) to Sh. Ramesh Kumar Sharma-I, workman at Sl. No. 1, Sh. Gopi Nath, workman at Sl. No. 5, and Sh. Kanti Prasad, workman at Sl. No. 18, Rs. 75,000/- (Rupees Seventy Five Thousands Only) to Sh. Jaidev Mukherjee, workman at Sl. No. 2, and Sh. Jai Ram Shah, workman at Sl. No. 4, Rs. 50,000/-(Rupees Fifty Thousands Only) to Sh. Rajender Sharma, workman at Sl. No.6, Sh. Ramesh Kumar Sharma-II, workman at Sl. No. 8, Sh. Pehlad Bannerjee, workman at Sl. No. 10, Sh. Dhanjoo Ram, workman at Sl. No. 11, and Sh. Radhey Shyam Yadav, workman at Sl. No. 12, and Rs. 25,000/- (Rupees Twenty Five Thousands Only) to Sh. Nitin Nath, workman at Sl. No. 13, within 30 days from the date of publication of this award failing which, they will also be entitled to get the future interest @ 8% from the date of award till the realization of the said amount.
48. It is further held that since 6 workmen namely Sh. Deep Chand, workman at Sl. No. 7, Sh. Jumman Sheikh, workman at Sl. No. 9, Sh. Rajenderan, workman at Sl. No. 14, Sh. Amit Patra, workman at Sl. No. 17, Sh. Sandeep Gupta, workman at Sl. No. 19, and Sh. Hemant Sharma, workman at Sl. No. 20 have failed to file their statement of claim and these 6 workmen and Sh. Kalpnath Yadav, workman at Sl. No. 3, Sh. Lakhpat, workman at ID No.61/10 Page 33 of 34 Sl. No. 16 and Sh. Kishan Bahadur, workman at Sl. No. 21 have failed to adduce any evidence and examine themselves in support of their case and statement of Sh. Dhruv Bannerjee, workman at Sl. No. 15, remained incomplete, therefore, they are not entitled to get any relief.
Award is, accordingly passed.
49. Copy of award be sent to the Secretary Labour, Govt. of NCT, Delhi for publication as per rules.
50. Copy of award be also sent to Ld. Senior Civil Judge, District South Delhi in compliance of provisions of Sec. 11(10) of the Act as amended by Industrial Disputes (Amendment) Act, 2010 (No. 24 of 2010), which runs as under:-
"(10) The Labour Court or Tribunal or National Tribunal, as the case may be, shall transmit any award, order or settlement to a Civil Court having jurisdiction and such Civil Court shall execute the award, order or settlement as if it were a decree passed by it."
Copy of this order cum award be placed in each of the cases. File be consigned to Record Room.
Announced in the Open Court on 5th February, 2011.
(DR. T. R. NAVAL) Additional District & Sessions Judge Presiding Officer, Labour Court, Karkardooma Courts, Delhi ID No.61/10 Page 34 of 34