Delhi District Court
Suraj Bharati S/O. Sh. Mitthu Ram vs M/S. Premier Engineering & Electrical ... on 14 October, 2014
Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI :
KARKARDOOMA COURTS : DELHI .
LABOUR COURT APPLICATION (LCA) NO. 23/08
UNIQUE CASE IDENTIFICATION NO. 02402C0502752007
In the matter of:
Suraj Bharati s/o. Sh. Mitthu Ram,
B831, Jwalapuri, Camp No. 4,
New Delhi87.
C/o. Engineering & General Karamchari Lal Jhanda Union,
M71415, Mangolpuri, Delhi.
.....Workman/Applicant/Claimant
Vs.
M/s. Premier Engineering & Electrical Corporation
Shed No. 2 & 14, CategoryII, S.F.S. DSIDC,
Rohtak Road Industrial Complex,
Nangloi, Delhi110041. .... Management
Date of Institution : 17.07.2007
Date of reserving for decision : 20.09.2014
Date of decision : 14.10.2014
APPLICATION UNDER SECTION 33 C (2) OF INDUSTRIAL
DISPUTES ACT, 1947.
DECISION:
Page 1/27 (ANAND SWAROOP AGGARWAL)
PO - LC - XI: KKD: DELHI: 14.10.2014
Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08
1.CASE OF WORKMAN AS PLEADED IN AMENDED APPLICATION U/S. 33 C (2) OF INDUSTRIAL DISPUTES ACT, 1947.
(i) Workman had been working with management since 01.03.1985 as 'Turner' and his last drawn salary was Rs.1000/ per month.
(ii) Workman was terminated from the service on 05.03.1990 without any reason and notice. The workman had raised an Industrial Dispute against the illegal termination from service before the Labour Court and the Labour Court presided over by Mr. R. K.Yadav passed an award dated 28.10.1993 with full back wages and continuity of service in favour of the workman.
(iii) After the passing the award dated 28.10.1993, workman sent a notice dated 10.01.1994 for reinstatement in service and back wages but the management failed to take back the workman on duty and also failed to pay back wages as per award.
(iv) An application under section 33 C (1) of Industrial Disputes Act, 1947 was moved and the management appeared before the authority under section 33 C (1) of Industrial Disputes Act, 1947 and the ld. Authority issued R.C. on 10.11.1994 for the amount of Rs. 43,750/ for the period from 5.3.1990 to 28.10.1993.
Page 2/27 (ANAND SWAROOP AGGARWAL)
PO - LC - XI: KKD: DELHI: 14.10.2014
Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08
(v) The management in the meantime moved an application
on 18.12.1993 for setting aside the award dated 28.10.1993 before the Labour Court and the said R.C. No. F. 23 (138) 94 dated 10.11.1994 was stayed with condition to furnish Bank Guarantee for the amount of Rs.43,750/ and the management filed a Bank Guarantee bond before the Court for an amount of Rs.43,750/ only on 19.4.1996.
(vi) The Labour Court presided over by Mr. Sanjay Kumar dismissed the application of the management on 01.11.2003 and the stay order was vacated and, thereafter, the workman went to join his duty but workman was not allowed to join duty and, hence, a notice dated 04.11.2003 under registered AD was sent to the management with request to take him back on duty as per award and, also, to pay the amount under R.C. but the management neither made the payment under R.C. nor reinstated the workman in service as per award.
(vii) Workman again moved a fresh application under section 33 C (1) of the Industrial Disputes Act, 1947 for claiming wages from date of termination till the date as 01.11.2003, when the application of the management was dismissed on merits, but the authority refused to issue R.C. for entire amount from date of termination till now as the award is still in operation and the workman is deemed to be in service Page 3/27 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD: DELHI: 14.10.2014 Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08 as per award and when the management has failed to reinstate the service of the workman, the workman is entitled to the amount during the period of pendency of the dispute till the date of reinstatement in service.
(viii) The Learned Authority refused to issue fresh R.C. for the amount of back wages from 29.10.1993 upto now as the workman is entitled to same as the workman is still unemployed in spite of best efforts to get the job in any other concern.
(ix) The workman received the amount of Rs. 43,750/ through recovery proceedings vide payorder dated 22.3.2007 and the said award dated 28.10.1993 was partly implemented and, therefore, the workman is legally entitled to the amount for the period of 29.10.1993 to 31.07.2007 at the rate of Minimum Wages revised from time to time by the State of Delhi.
(x) The workman is entitled to an amount of Rs.4,56,372/ for the period from 29.10.1993 to 31.07.2007 as per award.
(xi) The workman sent notice dated 26.02.2007 and 02.07.2007 under the registered A.D. cover and UPC but, in spite of the said notices, the management failed to pay the wages for the period from 29.03.1993 to 31.07.2007 amounting to Rs.4,56,372/ to the Page 4/27 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD: DELHI: 14.10.2014 Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08 workman as the workman is entitled for the same. Hence, this application.
(xii) PARAGRPAH INCORPORATED THROUGH AMENDMENT Before the filing of written statement of the management, workman was reinstated in service as per award through Labour Inspector Mr. A. K. Singh on 12.02.2008 but workman was not allowed to do work on the original post of skilled category as 'Turner I'. When the workman demanded the same (i.e. work of TurnerI) from management, management started to harass the workman in one way or the other. The workman made complaints dated 10.03.2008, 19.05.2008, 20.05.2008, 02.07.2008, 18.07.2008, 25.07.2008, 13.08.2008 and 01.09.2008. Report of Labour Inspector is dated 19.08.2009. In fact, management refused to reinstate the workman on 10.06.2004 (sic) in the presence of General Secretary and Secretary of the union at the time of negotiations with management.
With these averments, workman prayed that this court may kindly be pleased to determine the amount of Rs.4,56,372/ for the period from 29.10.1993 to 31.07.2007 in favour of the workman and against the management alongwith interest @ 18% per annum.
Page 5/27 (ANAND SWAROOP AGGARWAL)
PO - LC - XI: KKD: DELHI: 14.10.2014
Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08
2. CASE AS PLEADED BY MANAGEMENT IN AMENDED
REPLY TO APPLICATION U/S 33 C (2) OF INDUSTRIAL
DISPUTES ACT, 1947.
PRELIMINARY OBJECTIONS
An award passed by any Labour Court or Industrial Tribunal is implemented through an application u/s. 33 C (1) of the Industrial Disputes Act, 1947 and not u/s. 33 C (2) under which this application has been filed. The workman either can raise a fresh industrial dispute or can move an application u/s. 33 C (1) before the Govt. of NCT of Delhi. This Court has no jurisdiction to entertain and try this application and to compute any money as the workman never joined his duties after passing of the award and as such workman is not entitled to receive any money from the management on the basis of settled law, ''No Work No Wages''. As such, this application is not maintainable and is liable to be rejected on this ground alone. ON MERITS Management pleaded that averments made by applicant as regards his working with management since 01.03.1985 as 'Turner' and his last drawn salary being Rs.1000/ per month are matters of record and, therefore, need no reply. Applicant never reported for duties after the passing of award or even after dismissal of application Page 6/27 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD: DELHI: 14.10.2014 Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08 of management. Management denied the averment of applicant regarding termination of his services on 05.03.1990 but admitted that applicant raised an industrial dispute and an award was passed in the same. Management denied the averment(s) of applicant regarding notice dated 10.01.1994. Management pleaded that averments regarding issuance of R.C. on 10.11.1994 for the amount of Rs. 43,750/ and management moving an application on 18.12.1993 for setting aside award dated 28.10.1993 and management furnishing bank guarantee bond on 19.04.1996 are matters of record. Management admitted dismissal of application of management on 01.11.2003 by the Labour Court presided over by Mr. Sanjay Sharma but, further, pleaded that workman never reported for duties. Management also denied averments of workman regarding notice by workman on 04.11.2003. Management pleaded that averments made by workman regarding again moving an application u/s. 33 C (1) of the Industrial Disputes Act, 1947 are matters of record. However, management further pleaded that applicant is not entitled to wages for the period during which applicant never worked with management. Management denied the averment of workman regarding workman being unemployed in spite of best efforts to get the job in any other concern.
Page 7/27 (ANAND SWAROOP AGGARWAL)
PO - LC - XI: KKD: DELHI: 14.10.2014
Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08
Management admitted payment of Rs.43,750/ to workman but emphatically denied that workman is entitled to any wages for the period from 29.10.1993 to 31.07.2007. Since the workman failed to join his duties and management never refused the workman to join his duties after passing of the award, the applicant cannot claim wages for the period during which applicant never worked for management on the settled principle of law, ''No Work No Wages''. Management pleaded that applicant is not entitled to any amount from the management. Averments regarding notices dated 26.02.2007 and 02.07.2007 have been denied by management.
IN REPLY TO PARAGRAPH INCORPORATED THROUGH AMENDMENT management pleaded that workman was allowed to join his duties after the date of hearing (i.e. 21.01.2008), when the AR of the management submitted before the Court that the claimant has never reported for his duties and management never refused him to join his duties and only after the said submission of the AR of the management on 21.01.2008 the claimant had reported for duties on 11.02.2008 alongwith Labour Inspector Mr. A. K. Singh and management had agreed to allow the claimant to join his duties. The claimant was working with management as 'Turner Grade II' and Page 8/27 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD: DELHI: 14.10.2014 Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08 claimant was allowed to perform the duties of the same category. The claimant had worked on the same post w.e.f. 12.02.2008 till 24.07.2008 and claimant has received wages of the said category for period of six months. Further, claimant in his crossexamination in Case No. MW/05/WD/08 on 12.09.2012 admitted his signature on Ex. PW1/R1 at point 'A', wherein it has been clearly stated by claimant in his own handwriting, his category as TurnerII, which is more than enough to establish his category of working with management. Management duly replied all the complaints of workman to the Labour Office, Karampura, Delhi and report of Labour Inspector dated 11.08.2008 is selfexplanatory. Management emphatically denied that management ever refused to allow the applicant to join his duties on the post of 'Turner GradeII, which the applicant was adamant to work on the post of Turner and on this pretext applicant refused to join his duties with management. Management never refused the applicant to join his duties. At last, management prayed that the application filed by applicant may be dismissed with heavy costs being false, frivolous and vexatious and also not being maintainable in eyes of law.
3. REJOINDER TO THE AMENDED REPLY FILED BY MANAGEMENT Page 9/27 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD: DELHI: 14.10.2014 Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08 Workman filed rejoinder to the amended reply filed by management to the amended application u/s 33. C (2) of Industrial Disputes Act, 1947 wherein workman denied the case as pleaded by management in the amended reply. Workman further pleaded that it is denied that award of Labour Court or Industrial Tribunal is implemented through application u/s 33. C (1) of Industrial Disputes Act, 1947 and not u/s 33. C (2) of Industrial Disputes Act, 1947. Further workman pleaded that after the passing of the award dated 28.10.1993, the workman moved an application u/s 33. C (1) of Industrial Disputes Act, 1947 r/w. Section 29 of Industrial Disputes Act, 1947 on 05.03.1994. Before filing this application, workman had gone to join duties on 20.12.1993 but the workman was not taken on duty as per award and then workman sent a notice to the management on 10.01.1994 but in spite of receiving the notice management failed to take workman on duty and also failed to give reply to the workman. In the meantime, Labour Commissioner had issued Recovery Certificate on 10.11.1994 vide RC No. F. 23 (138) 94 for the amount of Rs.43,750/ for the period from 05.03.1990 to 18.10.1993 (sic). In fact, the said recovery proceedings remained suspended due to stay on the application of the management dated 18.12.1993 till 01.11.2003, Page 10/27 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD: DELHI: 14.10.2014 Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08 when the application of the management was dismissed on merits. Thereafter, workman again had gone to join his duty on 02.11.2003 but management again refused to take the workman on duty and the workman again wrote a letter to the management on 04.11.2003 and the same was received by management on 10.11.2003. But management again failed to take the workman on duty nor gave any reply to the notice of workman and then workman again moved an application u/s 33. C (1) of Industrial Disputes Act, 1947 r/w. Section 29 of the Industrial Disputes Act, 1947 but Labour Commissioner heard both the applications in joint proceedings of the matter and the authority refused to issue a fresh Recovery Certificate for the period from 05.03.1990 to 01.11.2003, when the application of the management was dismissed and advised the workman to move application to Labour Court u/s 33. C (2) of Industrial Disputes Act, 1947 for computation of the amount for the period from 29.10.1993 uptodate. Hence, this application has been moved. The amount of Rs. 43,750/ has been received by workman through recovery proceedings on 29.12.2006 and in fact the proceedings u/s. 29 of the Industrial Disputes Act, 1947 are still pending. Workman also denied the averments of the management that workman either can raise a fresh Page 11/27 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD: DELHI: 14.10.2014 Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08 industrial dispute or file the application u/s 33. C (1) of Industrial Disputes Act, 1947. As a matter of fact, workman had already moved an application u/s. 33 C (1) of Industrial Disputes Act, 1947 on 23.12.2003 but the authorities refused to issue a fresh R.C. from the date of termination till date. Management has nothing to say but to mislead this court only.
Workman is deemed to be in service and workman is entitled to receive a salary from 29.10.1993 upto 31.07.2007 amounting to Rs. 4,56,372/. The settled law, ''No Work No Wages'' is not applicable in this case as workman was ready and willing to join duty as per award but management intentionally and deliberately refused to reinstate the service of workman from the date of award till 11.02.2008. In fact, on the complaint of workman on 25.01.2008 to the Labour Inspector, Labour Inspector visited the factory and he workman has reinstated the service on 12.2.2008 (sic). But still the management failed to pay the wages as per post of 'Turner' which is covered under the skilled category of post and, thus, the award dated 28.10.1993 is still not implemented fully and is being continuously violated in terms of the award and, hence, management is further liable for the breach of Section 29 of the Industrial Disputes Act, 1947. A complaint dated Page 12/27 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD: DELHI: 14.10.2014 Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08 12.03.2008 was also moved before Asst. Labour Commissioner, Karampura, Delhi on 24.03.2008.
4. ISSUES Vide order dated 22.07.2008, ld. predecessor of this court framed the following issues:
(i) Whether the workman worked with the management during the period for which he has claimed for?
(ii) Whether the workman is entitled to the relief claimed for and, if so, to what amount is he entitled for?
5. EVIDENCE Workman appeared in the witness box as WW1 Mr. Suraj Bharti and filed his evidence affidavit Ex. WW1/A on the basis of amended statement of claim. Workman in his evidence affidavit relied upon documents exhibited as Ex. WW1/1 to Ex. WW1/38. However, in the course of examinationinchief of workman certain documents exhibited by him in his evidence affidavit were deexhibited and they were marked. Thus, workman relied upon documents: Ex. WW1/1 Award dated 28.10.1993 passed by Sh. R. K. Yadav, Ld. POLCII, Delhi; Mark A (after deexhibition of document mentioned as Ex. WW1/2 in evidence affidavit of workman) Application dated 10.01.1994 made by workman to the management; Ex. WW1/3 Postal Page 13/27 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD: DELHI: 14.10.2014 Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08 Receipt dated 05.03.1994; Mark B (after deexhibition of Ex. WW1/4) Application u/s. 33 C (1) of Industrial Disputes Act, 1947; Ex. WW1/6 Recovery Certificate No. F. 23 (138)/94; Mark C (after deexhibition of Ex. WW1/7) Order dated 01.11.2003 passed By Mr. Sanjay Sharma, POLCII dismissing the application of the management for setting aside the exparte award 28.10.2003; Mark D (after deexhibition of Ex. WW1/8) Notice to management dated 04.11.2003; Ex.WW1/9 Acknowledgment Card showing receipt of notice Mark D on 10.11.2003; Mark E (after deexhibition of Ex. WW1/10) Application (dated 23.12.2003) under section 33 C (1) of Industrial Disputes Act, 1947; Ex.WW1/11 RC dated 19.09.2006; Mark F (after deexhibition of Ex. WW1/12) letter dated 26.02.2007 addressed to management; Ex.WW1/13 UPC; Ex.WW1/14 Postal Receipt; Mark G (after deexhibition of Ex. WW1/15) Letter dated 13.03.2007 addressed to management; Ex.WW1/16 Postal Receipt; Mark H (after deexhibition of Ex. WW1/17) Letter dated 02.07.2007 written to management; Ex.WW1/19 UPC dated 02.07.2007; Ex.WW1/20 Postal receipt; Mark I (after deexhibition of Ex.WW1/21) - Guarantee Bond; Ex.WW1/22 Calculation Chart; Mark J (after deexhibition of Ex. WW1/23) Letter dated 10.03.2008 Page 14/27 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD: DELHI: 14.10.2014 Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08 written to Labour Inspector by workman; Mark K (after deexhibition of Ex. WW1/24) Application for leave dated 19.05.2008; MarkL (after deexhibition of Ex. WW1/25)Postal Receipt dated 30.05.2008; Mark M (after deexhibition of Ex. WW1/26) Application for leave dated 19.05.2008; Mark N (after deexhibition of Ex. WW1/27) Application for leave dated 20.05.2008; Mark O (after deexhibition of Ex. WW1/28) Letter dated 02.07.2008 written to Deputy Labour Commissioner by workman; Mark P (after deexhibition of Ex. WW1/29) Letter dated 18.07.2008 written to SHO PS Nangloi by workman; Mark Q (after deexhibition of Ex. WW1/30) complaint dated 24.07.2008 made to Deputy Labour Commissioner; Mark R (after deexhibition of Ex. WW1/31) Complaint dated 24.07.2008 addressed to Deputy Labour Commissioner; Mark S (after de exhibition of Ex. WW1/32) Letter dated 13.08.2008 written to management by workman; Mark T (after deexhibition of Ex. WW1/33) UPC; Mark U (after deexhibition of Ex. WW1/34) Demand Notice dated 01.09.2008; Ex. WW1/35 Acknowledgment Card; Ex. WW1/36 Postal Receipt; Mark V (after deexhibition of Ex. WW1/37) Report of Labour Inspector; Mark W Photocopy of Cheque dated 29.12.2006 for a sum of Rs. 43,750/ issued by Page 15/27 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD: DELHI: 14.10.2014 Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08 management in the name of workman; Ex. WW1/38 Order dated 06.10.1980 passed by Sh. B. B. Chaudhary, MM, Delhi. During cross examination of workman ld. counsel for the management submitted that he is adopting the crossexamination of workman conducted in DID No. 312/08 between the same parties. Ld. counsel for the workman did not raise any objections to the submissions made by ld. counsel for the workman. Request of ld. counsel was allowed with the directions to file certified copies of the same in this file. However, workman was further crossexamined in this case and workman in his further crossexamination was confronted with documents namely Ex. MW1/1 - Evidence of workman recorded in Case No. MW/05/WD/08 on 12.09.2012, Ex. WW1/M1X Order dated 24.07.2013 passed in claim before Authority under the Minimum Wages Act, 1948 vide Claim No. F.MW/05/WD/08; Ex. WW1/M4X Report (dated 11.08.2007) of the Labour Inspector. In his crossexamination in DID No.312/08 workman stood confronted with Ex. WW1/M1X Notings dated 11.02.2008 made by Labour Inspector regarding visit of the Labour Inspector to the establishment of the management and management being ready to join the workman on duty w.e.f. 12.02.2008; Ex. WW1/M2X Attendance Card of the workman for the Page 16/27 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD: DELHI: 14.10.2014 Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08 month of February, 2008; Ex. WW1/M3X Muster Roll for the month of February, 2008 & Wages Payment Register for the month of February, 2008; Ex. WW1/M4X Report of Labour Inspector dated 11.08.2008; Ex. WW1/M5X Complaint dated 28.05.2008 made to management against the workman herein by other workman of management; Ex. WW1/M6X Letter dated 03.07.2008 written by management to Deputy Labour Commissioner, West Zone, FBlock, Karampura, New Delhi. WE was closed on 11.03.2014 by Sh. S. L. Kashyap Adv. for workman. Management examined MW1 Mr. Jogesh Kumar Bahal who was crossexamined at length by ld. counsel for the workman. Management relied upon documents already exhibited as Ex. WW1/M1X to Ex. WW1/M6X and Ex. PW1/R1 - Letter written by workman to management. M.E. was closed on 29.05.2014 by Sh. A. K. Jain ld. ARM / Adv. for the management.
6. ARGUMENTS I have heard Mr. S. L. Kashyap, adv. for the workman and Mr. A.K.Jain, adv. for the management. Written synopsis has also been filed by counsel for management. Ld. counsel for the workman relied upon case laws reported as (i) Delhi Transport Corporation Vs. D.D.Gupta & Anr. 1978 1 LLJ 122; (ii) Municipal Corporation of Page 17/27 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD: DELHI: 14.10.2014 Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08 Delhi Vs. Ganesh Razak & Anr. 1994 (5) SLR 764; (iii) Central Bank of India Ltd. Vs. Rajagopalan (PS) (1963) II LLJ 89 (SC) and (iv) Food Craft Instt. Vs. Rameshwar Sharma & Anr. 134 (2006) DLT 49. Ld. counsel for the management relied upon case laws reported as (i) North East Karnataka Road Transport Corporation Vs. M. Nagangouda AIR 2007 793; (ii) State of U.P. Vs. Brijpal Singh 2005 (107) FLR 604; (iii) State Bank of India Vs. Ram Chandra Dubey & Ors. AIR 2000 SC 3734; (iv) Municipal Corporation of Delhi Vs. Ganesh Razak & Anr. 1995 LLR 161; (v) Jagannath Bhagwan Das Shrivastav & Ors. Vs. Harish Thandani & Anr. 1993 LAB. I.C 2508;
(vi) Om Prakash Mathur Vs. Panjon Ltd. & Ors. 2001 (88) FLR 349;
(vii) Jeet Lal Sharma Vs. Presiding Officer, Labour CourtIV & Anr. 84 (2000) DLT 706; (viii) Basant Lal Vs. Management of M/s. A. F. Ferguson & Co. & Anr. 2002 (93) FLR 1220. I have gone through the material available on judicial file very carefully. I have also gone through the case laws relied upon by ld. counsels for both the parties keeping in view the facts and circumstances of the case as they arise on the basis of material available on judicial file.
7. My ISSUEWISE findings are as under: ISSUE No.1 Page 18/27 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD: DELHI: 14.10.2014 Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08 Whether the workman worked with the management during the period for which he has claimed for?
Workman in this case has claimed for recovery of Rs.4,56,372/ with interest @ 18% per annum from the management being wages for the period from 29.10.1993 to 31.07.2007. Workman in his cross examination deposed that, ".... It is correct that during the period of 1990 till February, 2008. I did not perform my duties with the management at any point of time......". Thus, it is observed that workman did not work with management during the period for which workman has claimed for in this application u/s. 33 C (2) of the Industrial Disputes Act, 1947. Issue is decided accordingly. ISSUE No.2 Whether the workman is entitled to the relief claimed for and, if so, to what amount is he entitled for?
Management in the WS has raised issue as regard maintainability of this application filed by workman u/s. 33 C (2) of the Industrial Disputes Act, 1947. This application of workman is based on the award dated 28.10.1993 passed in an industrial dispute between the management and workman herein by the Labour Court presided over by the Mr. R. K. Yadav: Presiding Officer: Labour Page 19/27 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD: DELHI: 14.10.2014 Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08 CourtII: Delhi whereby reference in the terms "Whether the services of Shri Suraj Bharti 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?" was decided in favour of claimant holding that claimant is deemed to be in services of the management with continuity of service and full back wages. Also appropriate Government was advised to instruct the management to reinstate the claimant in job with continuity of service and full back wages. Workman has already recovered / received an amount of Rs. 43,750/ from management from the period from 05.03.1990 (the date of termination of services of workman as per award dated 28.10.1993) to 28.10.1993 (date of award). This application pertains to period from 29.10.1993 to 31.07.2007. So far as issue as to maintainability of this Labour Court application u/s. 33 C (2) of the Industrial Disputes Act, 1947 is concerned it is observed that Division Bench of Hon'ble Delhi High Court in LPA No.259/2007 titled as Shri V. M. Puri Vs. Hindustan Insecticides Ltd. and Ors. decided on 01.03.2013 ruled / observed that, ".... In the event there is a dispute with respect to computation of money payable under on award, the appellant has the right to approach the Labour Court u/s. 33 (c) (2) by filing an Page 20/27 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD: DELHI: 14.10.2014 Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08 appropriate application for computation of the amount payable to him in terms of the award....".
Here case of workman is that, as workman has not been reinstated in service by management despite award dated 28.10.1993, workman is entitled to recover wages for the period from 29.10.1993 to 31.07.2007 from the management. Workman is claiming his entitlement on the basis of award dated 28.10.1993 and, thus, this application under section 33 C (2) of the Industrial Disputes Act, 1947 is held to be maintainable. Case laws relied upon by ld. counsel for management in this regard have no application in the facts and circumstances of this case. Vide award dated 28.10.1993 workman was held to be entitled to reinstatement in job with continuity of service and full back wages. Obviously, for his reinstatement in service workman is supposed to report for his duties at the place of work. Although, there is no specific averment in the statement of claim as to when workman after the passing of award dated 28.10.1993 reported for duties at the work place of management, workman in his cross examination conducted partly on 13.01.2012 deposed, "...... I had reported for duties with the management after passing of an award by the court in my favour. I do not remember Page 21/27 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD: DELHI: 14.10.2014 Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08 now as to when I reported for aforementioned duty ..........". Above depositions are not worth reliance from a judicial inasmuch as neither there is specific pleading of workman as to when workman reported for duties to the management after the passing of award nor in his cross examination workman deposed about the specific date when workman, if really so, reported for his duties with the management.
Workman, while appearing as WW1 Mr. Suraj Bharati, in his cross examination on 13.01.2012 also deposed that, "..... I reported for duties with the Assistant Labour Commissioner, Karampura office, New Delhi in the year 2008. It is correct that in February, 2008, the Management allowed me to join my services with it. Till 24.07.2008 I worked there with the Management...". As per above depositions workman reported for duties in the year 2008. Present claim pertains to the period from 29.10.1993 to 31.07.2007 only. Workman in his cross examination conducted on 13.01.2012 also deposed that, "...It is correct that a labour inspector visited the Management's establishment with me. I do not remember the date when the said labour inspector took me there with him. On the said date the labour inspector had got paid my wages from the Management. However, I do not remember as to what amount was paid to me by the Page 22/27 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD: DELHI: 14.10.2014 Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08 Management. The labour inspector also initiated the proceedings with regard to my joining of duties with the Management. However, the Management refused to take me back on duty. I have placed the said report of the labour inspector on the judicial file. (The witness is asked to locate that document but he cannot locate any such document.)....".
On the judicial file there is no report of Labour Inspector as per which management refused to take the workman back on duty. There are two documents pertaining to proceedings conducted by Labour Inspector (i) Ex.WW1/M1x (as per which on 11.02.2008 Labour Inspector visited the establishment of management on the basis of complaint of union and officeorder. Labour Inspector had talks with Mr. Jogesh Kumar Bahal, partner of management who told that management never refused to take the workman on duty and, hence, management is ready to take the workman on duty. Workman was asked to report for duty w.e.f. next day i.e. 12.02.2008. Workman also agreed to report for duty at 9.00 a.m. on 12.02.2008) and (ii) Mark - V (also exhibited as Ex.WW1/M4x) (as per which also management did not refuse to take the workman back on duty.) Noteably, none of these documents pertain to the period (i.e. from 29.10.1993 to Page 23/27 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD: DELHI: 14.10.2014 Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08 31.07.2007) to which this claim pertains.
Workman in his cross examination conducted on 29.02.2012 deposed that, ".....It is correct that after passing the award dated 28.10.1993 I never reported the duties with the management. It is correct that in the court of Sh. R P S Teji the AR for the management had stated that the management never refused to allow him to join his duties after passing the award. It is correct that I had reported for duties on 12.02.2008 as per offer of the management on 11.02.2008 in presence of the labour inspector. I do not remember that on 11.02.2008 the labour inspector had visited the premises of the management in the evening at about 04.20 PM and the management had submitted to the labour inspector that I can join the duties immediately w.e.f. 12.02.2008....". Above discussion show that workman did not report for his duties with management at the workplace of management prior to 11.02.2008. Complaint dated 21.01.2008 (Ex. WW1/8) made and relied upon by workman in DID No. 312/08 between the same parties also mention that on 21.01.2008 ld. counsel for management namely Mr. Jain had submitted before Sh. Rajpal Singh Teji, Ld. POLC that workman had not reported for duties and workman be reinstated in service through Labour Inspector. Thus, Page 24/27 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD: DELHI: 14.10.2014 Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08 it was on the initiative of ld. counsel for management only that workman was reinstated in service w.e.f. 12.02.2008.
Workman in the rejoinder pleaded that before filing application under section 33 C (i) r/w. section 29 of the Industrial Disputes Act, 1947 workman had gone to join duties on 20.12.1993 but workman was not taken on duty as per award and then workman sent notice to management on 10.01.1994. There are so such pleadings in the statement of claim / application. For the first time this averment has been made in the rejoinder. Also, noteably, in the notice dated 10.01.1994 there is no mention that workman reported for duty on 20.12.1993 as for the first time alleged in the rejoinder. Further, notice dated 10.01.1994 was not sent on 10.01.1994 but it was dispatched vide postal receipt dated 05.03.1994. Thus, averment of workman that workman reported for duties on 20.12.1993 is not worth credit from judicial mind.
Workman in the rejoinder also pleaded that on 02.11.2003 workman again had gone to join his duty but management refused to take workman on duty. In the notice dated 04.11.2003 there is no mention of visit of workman to management for joining duties on 02.11.2003 and management refusing the workman to join his duties.
Page 25/27 (ANAND SWAROOP AGGARWAL)
PO - LC - XI: KKD: DELHI: 14.10.2014
Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08
Incident dated 10.06.2004 referred to in para. no. 7 of evidence affidavit of workman in beyond pleadings. Also, MW1 Mr. Jogesh Kumar Bahal in this regard deposed as under: "....Qus. It is put to you on 10.06.2004 at about 11.00 Am myself (S. L. Kashyap, adv.), Secretary of Union Sh. Girja Shankar alongwith workman had visited the management for settlement of matter / dispute and during the talks of settlement it was suggested that workman should be made to rejoin the duties but management refused and said that amount under the recovery certificate shall be paid? What you have to say?
Ans. I do not remember the date of visit of Sh. S. L. Kashyap, adv., Secretary of Union Sh. Girja Shankar alongwith workman but they have visited the management. There were no talks of rejoining the workman on duties and only the talks about upto date payment to the workman had taken place. Management had told that payment of recovery certificate shall be made and regarding other demands there could be no payment as there was no work. I do not remember whether management had received Ex. WW1/32 and Ex. WW1/34 or not...".
Thus, there is no admission on the part of management that on 10.06.2004 management refused the workman to join his duties. Workman in his cross examination specifically deposed that, "........ It is correct that after passing the award dated 28.10.1993 I never reported the duties with the management.....". When workman himself did not report for duties it cannot be said that management did Page 26/27 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD: DELHI: 14.10.2014 Suraj Bharati Vs. M/s. Premier Engineering & Electrical Corporation LCA No. 23/08 not reinstate the workman in service despite award dated 28.10.1990 in favour of workman. Merely, sending notices in the facts and circumstances of this case do not serve any purpose unless and untill workman himself presents him for duty at the workplace of management. Even the said notices does not corroborate the case of workman regarding his visit to management on 20.12.1993 and 02.11.2003 and management refusing the workman to join his duties. Thus, workman is held to be not entitled to recover a sum of Rs. 4,56,372/ as prayed for. Issue is accordingly decided against the workman.
8. Parties to bear their own costs.
9. Copy of this decision be sent to appropriate government in terms of section 33 C (4) of the Industrial Disputes Act, 1947.
10. File be consigned to record room after completing due formalities.
(Pronounced in the open court on 14.10.2014)
(Anand Swaroop Aggarwal)
POLC XI/KKD/Delhi
Page 27/27 (ANAND SWAROOP AGGARWAL)
PO - LC - XI: KKD: DELHI: 14.10.2014