Delhi District Court
Did Workmen vs . Ragnik Exports Pvt. Ltd. 1 Page Out Of 29 on 19 August, 2013
IN THE COURT OF SH. SATINDER KUMAR GAUTAM
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER, LABOUR COURT
KARKARDOOMA CO URTS, DELHI.
Date of Institution : 02.06.2010
Date of award
: 19.08.2013
DID 286/11
INDUSTRIAL DISPUTE BETWEEN :
Smt. Seema D/o Sh. Prem Singh
R/o H No. A98, Karan Vihar, Kirari,
New Delhi110086
Through: Avdhesh Singh,
796, PocketI,
Paschimpuri,
New Delhi110063 ........workmen
DID No. 287/11
Sh. Sripat S/o Sh. Murli Maurya
R/o H No. E2/252, Prem NagarIII, Kirari,
Suleman Nagar, Sultanpuri,
New Delhi110086
Through: Avdhesh Singh,
796, PocketI,
Paschimpuri,
New Delhi110063 ........workmen
DID No. 288/11
Ms. Neetu Vashist D/o Sh. Prem Singh Vashist
R/o H No. A98, Karan Vihar, Kirari,
DID Workmen Vs. Ragnik Exports Pvt. Ltd. 1 page out of 29
New Delhi110086
Through: Avdhesh Singh,
796, PocketI,
Paschimpuri,
New Delhi110063 ........workmen
DID No. 289/11
Abdul Rehman S/o Mohd. Usman
R/o H No. B540, Nangloi, Camp NoII,
New Delhi110041
Through: Avdhesh Singh,
796, PocketI,
Paschimpuri,
New Delhi110063 ........workmen
DID No. 290/11
Smt. Dayawati W/o Sh. Kumarpal
R/o H No. F116, Mange Ram Park, Punthkala,
Gali No.11, Prehladpur Road,
New Delhi110086
Through: Avdhesh Singh,
796, PocketI,
Paschimpuri,
New Delhi110063 ........workmen
DID No. 291/11
Smt. Veena W/o Sh. Pappi
R/o H No. Y664,Mangolpuri,
New Delhi110083
Through: Avdhesh Singh,
796, PocketI,
Paschimpuri,
DID Workmen Vs. Ragnik Exports Pvt. Ltd. 2 page out of 29
New Delhi110063 ........workmen
DID No. 292/11
Smt. Anita Viswash w/o Sh. Budh Dev Viswash
R/o H No. F1/46, Mangolpuri,
New Delhi110083
Through: Avdhesh Singh,
796, PocketI,
Paschimpuri,
New Delhi110063 ........workmen
DID No. 293/11
Smt. Usha w/o Late Sh. Bhopal Singh
R/o H No. E112, Mangolpuri,
New Delhi110083
Through: Avdhesh Singh,
796, PocketI,
Paschimpuri,
New Delhi110063 ........workmen
DID No. 294/11
Sh. Manoj Kumar S/o Sh. Ram Avtar
R/o H No. C5/168, Sultanpuri,
New Delhi110086
Through: Avdhesh Singh,
796, PocketI,
Paschimpuri,
New Delhi110063 ........workmen
DID No. 295/11
Sh. Shiv Sagar S/o Sh. Ram Sahai
R/o H No. B55, Mangeram Park, Punthkala,
DID Workmen Vs. Ragnik Exports Pvt. Ltd. 3 page out of 29
New Delhi110083
Through: Avdhesh Singh,
796, PocketI,
Paschimpuri,
New Delhi110063 ........workmen
DID No. 296/11
Sh. Mahendra Paswan S/o Sh. Basant Paswan
R/o H No. A410, Indra EnclaveII, Mubarakpur,
New Delhi110086
Through: Avdhesh Singh,
796, PocketI,
Paschimpuri,
New Delhi110063 ........workmen
DID No. 297/11
Smt. Neelam Jha W/o Sh. Akhileswar Jha
R/o H No. Q101, Gali No.6, Mangolpuri,
New Delhi110041
Through: Avdhesh Singh,
796, PocketI,
Paschimpuri,
New Delhi110063 ........workmen
DID No. 298/11
Sh. Sanjeev S/o Sh. Chandrika Paswan
R/o H No. X369, Mangolpuri,
New Delhi110083
Through: Avdhesh Singh,
796, PocketI,
Paschimpuri,
New Delhi110063 ........workmen
DID Workmen Vs. Ragnik Exports Pvt. Ltd. 4 page out of 29
DID No. 299/11
Sh. Upendra Kumar S/o Sh. Ram Vilash Gupta,
R/o H No. G5, Gali no.1, Mangolpuri
New Delhi110083
Through: Avdhesh Singh,
796, PocketI,
Paschimpuri,
New Delhi110063 ........workmen
DID No. 300/11
Sh. Ram Asre S/o Sh. Laxman Prasad,
R/o H No. 7/200, Janata Enclave,
Prem NagarIII, Nangloi
New Delhi110086
Through: Avdhesh Singh,
796, PocketI,
Paschimpuri,
New Delhi110063 ........workmen
DID No. 301/11
Sh. Vimlesh Kumar S/o Sh. Shri Kishan,
R/o H No. A4, Mangeram Park, Punthkala
New Delhi110041
Through: Avdhesh Singh,
796, PocketI,
Paschimpuri,
New Delhi110063
DID No. 302/11
Sh. Sunder Lal S/o Late Sh. Chote Lal,
R/o H No.C112, Vikas Enclave,
DID Workmen Vs. Ragnik Exports Pvt. Ltd. 5 page out of 29
Agar Nagar, Mubarakpur Road, Nagloi
New Delhi110083
Through: Avdhesh Singh,
796, PocketI,
Paschimpuri,
New Delhi110063 ........workmen
DID No. 303/11
Sh. Parsu Ram S/o Sh. Pyare Lal,
R/o H No. G7/200, Janata Enclave,
Prem NagarIII, Nagloi,
New Delhi110086
Through: Avdhesh Singh,
796, PocketI,
Paschimpuri,
New Delhi110063
........workmen
VERSUS
1. M/s Ragnik Exports Pvt. Ltd.
B.T.3/211, Mangolpuri Industrial Aread, PhaseI,
New Delhi110044
2. Ragnik International,
B.T.3/211, First Floor,
Mangolpuri Industrial Area,
PhaseI, New Delhi83 .........management
AWARD
This award shall disposed off 18 cases against management M/s
Ragnik International and Ragnik Exports Pvt. Ltd. filed by the above
named workmen for their reinstatement in service alongwith back wages
DID Workmen Vs. Ragnik Exports Pvt. Ltd. 6 page out of 29
and consequential benefits. All eighteen above caption cases are decided
by this common award since the facts and law involved in all claims are
common one. The issues framed are also same in all cases except the
designation, salaries and the alleged date of termination of the workmen.
The facts as culled out from the pleading of the parties are that
the claimant/workmen are employed with the management on the
monthly salary as per their designation as mentioned above. The
management has not given any legal facilities as per their entitlement and
obtained signature on blank paper, vouchers & register etc. The
management also used to made garment business and established too
different establishment as mentioned in the title on one premises. The
management have transferred the name of the workmen from one
organization to the other, as per their convenient and get the benefits of
labour law. The management have adopted unfair labour practices by
manufacturing these documents of the employment. The litigation against
management is pending in the Industrial Tribunal for the general demand
of the workmen. The workmen have participated in the Union meeting
and activities and also raised the general demands for their lawful
facilities. The management became annoyed and terminated their service
illegally & unjustifiably despite the workmen have served for more than
ten years. The management has violated the provision of Section 9A, 25
G, 25H, 25F, 25FFF & 33 of the Industrial Dispute Act 1947. The
workmen have received the cheque towards full & final settlement under
DID Workmen Vs. Ragnik Exports Pvt. Ltd. 7 page out of 29
protest, in order to retrenchment these workmen by giving a lump sum
benefit. The management terminated the service of workmen on the
behest of alleged closure of the management unit though the management
is still running. The management have illegally terminated their services
without following the norms of the Industrial Dispute. Act 1947. The
management is still running in Gurgaon though the management has
alleged to be closed its manufacturing process in Delhi. The employee
working at Delhi earlier are still working at Gurgaon. The management
has not followed the procedure of closure while alleged closure of the
manufacturing unit. The Junior employees are still working with the
management. The work which have been done by the workmen is now
being done by fresh employee on the contract basis which is violation of
section 25F, 25FFF, 25H, 25N & 33 of the I.D. Act 1947. It
tantamount to be unfair labour practice as covered under clause 4C, (6)
while retrenchment service of the workmen. The management has not
follow the provision of Industrial Dispute Act 1947 as not served any
legal demand notice under Rule 76 (a) Industrial Dispute (Central) Rule
1957. The management of its own, have changed the terms of the
appointment letter while terminating the services of the workmen without
follow the proper procedure & rules and regulations as well as violation
of terms of the appointment and Section 9A of the Industrial Disputes
Act 1947. After terminated the services of the workmen, the workmen
have several time approached to the management for seeking employment
DID Workmen Vs. Ragnik Exports Pvt. Ltd. 8 page out of 29
and also approached to the Labour Department but the management has
not followed the instruction of the Labour Department, thereafter, the
workmen has sent the demand notice dt. 27.04.10. The management did
not pay any heed on the request of the workmen through demand. Hence,
the workmen filed the claim u/s 10 (4A) of the I.D. Act. The claimants
are unemployed from the date of their termination even after sincere
efforts made for reemployment but they cannot get any job despite their
best efforts. The termination of the workmen may be declared as null &
void.
Per contra, separate written statement filed by the management
no.1 & 2. The management while controverting the contention of the
workmen have submitted that the claim of the workmen are not
maintainable as the manufacturing activities of the management no.1
have also been closed and due notice was given to the concerned parties
including the claimant on 18.05.10 which have been duly received. The
management no.2 has been falsely implicated in the present claims. The
services of the claimants were limited to Delhi as per terms of the
employment. It is denied that there were more than 100 workers in both
the units and there was no change of service condition. The closure of the
manufacturing process are announced and due notice has already been
given to the various authorities including the claimants also and all the
dues were offered but they never refused by the claimant's and thereafter
the same was accepted by the claimant's only at the Labour Office by
DID Workmen Vs. Ragnik Exports Pvt. Ltd. 9 page out of 29
reserving the so called rights and since the management was not
intending to withhold the dues as such the same was offered to the
claimant at the Labour Office as well as management unit. The factory
premises was inspected by the Labour Department, P.F. Officials, ESI
officials etc. and management is still prepare to get it inspected through
the court also regarding the closure of the unit. There is no change of
service conditions. All the employees relating to management process
were terminated/retrenched and the retrenchment compensation as per
law was offered. Hence the claimants/ workmen are not entitled for any
relief as claimed.
The management no.2 denied the relationship of employer
employee between the parties. The management no.2 is a Private Limited
Company whereas the management no.1 is a proprietorship concern. The
closure of the manufacturing process of Delhi unit have been announced
and there is no transfer of services or intended to be. Both the company
are separate legal entities, separate working, separate orders and separate
employees. The employee of management no.2 was covered under the
ESI. The record of the management no.2 was checked and verified by the
appropriate authorities and all the labour laws has been strictly followed.
The rest of the contention are denied and prayed that the claim of the
claimant/workmen are liable to be dismissed against the management no.
2.
The rejoinder to the written statement of Management no.1 & 2
DID Workmen Vs. Ragnik Exports Pvt. Ltd. 10 page out of 29
filed whereas denied the contentions made in the written statement and
reagitated the contentions of statement of claim and prayed for the relief
as mentioned in the claim petition.
From the pleading of the parties, vide order dt.03.06.11 the
following common issues were framed in the claim petition which are as
under :
1. Whether the services of the workmen were illegally terminated by
the management on 03.04.2010?
2. Whether there existed relationship of employer and employee
between the workmen and management No.2?
3. Whether the manufacturing unit of management no.1 had been
closed and if so, its effect?
4. To what relief, the workmen is entitled?
Additional issues was framed on 04.10.11 which as under:
5. Whether the management no.1 and management no.2 are one
establishment in terms of industrial Dispute Act, 1947?
After framing of the issues, the workmen examined themselves
through an affidavit. They also cross examined at length by AR for
management.
The management also examined MW1 Sh. Nageshwar
Kumar/MW1 Surender Verma through an affidavit Ex.MW1/A. They
were also cross examined by AR for workmen at length.
DID Workmen Vs. Ragnik Exports Pvt. Ltd. 11 page out of 29
ISSUE WISE FINDINGS ARE AS UNDER
ISSUE NO.2 & 5
Whether there existed relationship of employer and employee
between the workmen and management No.2?
The management no.2 through the written statement have
alleged that both the companies i.e. Management no.1 & 2 are separate
legal entities, and separate working, separate order, separate employee
and there is no transfer of service of employee. There is no relationship of
employeremployee as nothing is attributed otherwise there was no
change of service conditions. MW1 Nageshwar Singh/ MW1 Surender
Verma have deposed on behalf of management whereas in para no.3 of
the affidavit has stated that the M/s Ragnik Exports Pvt. Ltd. & Ragnik
International are two different firms whose owners are different with
different constitution, different ESIC & P.F. Code Nos. etc. In his cross
examination it is testified that:
"the Director of the management no.1 is.
Sh. Praveen Soni. He know the name of the wife of
Praveen Soni i.e. Ms. Poonam Anand Soni. The
management deals in manufacturing of ready made
garments. It is correct hat the management is still
running at Plot No.4, BlockA, Infocity Section 34
Gurgaon also. The management has right to transfer
DID Workmen Vs. Ragnik Exports Pvt. Ltd. 12 page out of 29
the worker in sister concern management in Delhi. In
Delhi management is running at BT 211, Mangolpuri
Industrial Area, Delhi. I do not know if management
no.2 is also functioning at BT/211, Mangole Puri
Industrial Area, First Floor, Delhi. He do not know as
to whether Mr. Poonam Soni is also director of
management no.1. He do not remember if the
management has filed a civil case against the
workmen mentioned in para no.3 of workmen. I do not
know as to whether M1 & M2 had filed a joint civil
suit against the workmen. I do not know as to whether
Praveen Soni husband of Poonam Soni has singed the
suit on behalf of management no.1 and Ms. Poonam
Soni on behalf of Management no.2. It is denied that
the management no.1 & 2 are one establishment. I do
not know as to whether more than 100 worker were
working in management no.1 & 2. again said that
management no.1 has only 19 workers.
On the other hand the workmen has denied the suggestions
of management no.1 & 2 are two different establishment. The workmen
did not know the service conditions of both the management are different
or not. It is admitted that the ESI & PF codes of both the managements
DID Workmen Vs. Ragnik Exports Pvt. Ltd. 13 page out of 29
are different. The workmen are the member of ready made garments
exports employees union. The Industrial Dispute mentioned in para no.4
of affidavit are based on different demands. Vol. However, they are
connected to them.
From the deposition of witness, facts & circumstances the
workmen has pleaded in para no.3 of the claim petition that both the
management no.1 & 2 are one establishment. The workmen was not
cross examined or rebutt on this contention authorized representative of
the management nor any suggestion in respected to this evidence. The
workmen is able to prove his assertion. Section 2(KA). The above said
section is reproduced as under:
Section 2 (KA) " Industrial Establishment or undertaking" means an
establishment or undertaking in which any industry is carried on:
"Where several activities are carried on in an
establishment or undertaking and only one or some of
such activities is or are an industry or industries, then:
(a) if any unit of such establishment or
undertaking carrying on any activity, being an industry, is
severable from the other unit or units of such
establishment or undertaking, such unit shall be deemed
to be a separate industrial establishment or undertaking.
(b) if the predominant activity or each of the
DID Workmen Vs. Ragnik Exports Pvt. Ltd. 14 page out of 29
predominant activities carried on in such establishment or
undertaking or any unit threof is an industry and the other
activity or each of the other activities carried on in such
establishment, or undertaking or unit thereof is not
severable from and is, for the purpose of carrying on, or
aiding the carrying on of, such predominant activity or
activities, the entire establishment or undertaking as the
case may be, unit thereof shall be deemed to be an
industrial establishment or undertaking.
Hon'ble Supreme Court in M/s Strew Board company Ltd.
V/s M/s Strew Boerd Manufacturing co. Ltd. 1974 ( 28) FLR 357
normal has observed in para no.16 that:
" What then in 'one establishment' in the ordinary establishment
or business sense?................... Several tests were referred to in the
course of argument before us, such as geographical proximity, unity
of onwnership, management and control, unity of employment and
condition of services, functional integrity, general utility of purpose
etc...... It perhaps impossible to lay down any one test as an absolute
invariable test for all cases. The real purpose of the these test is to
find out the true relation between the parties, branches etc. if in
their true relation they constitute one itergrated whole, we say that
they establishment is whole; if on the contrary they do not constitute
one integrated whole, each unit is then a separate unit."
In another judgement South India Millowner's Association
and Others V/s Coimbatore District worker's union and others 1962
DID Workmen Vs. Ragnik Exports Pvt. Ltd. 15 page out of 29
(4) FLR 262 and Western India MATCT Co. Ltd. V/s Their workmen
1963 ( 7) FLR 357 have the similar strength:
From the aforesaid material on record as well as deposition
of the witness, it revealed that both the establishment have separate, ESI
and EPF number, their firms names are different though they were being
running at the one property. Their balancesheet, vouchers etc. are shown
to be maintained by different management, mere having two
establishment at one place and changing the employee through
memorandum and undertaking cannot be presumed that two
establishment are one and they are being managing by one person. The
director of the management may be in a close relation but it cannot be
said that M/s Ragnik International and M/s Ragnik Export Pvt. Ltd. are
one establishment. M/s Ragnik Export Pvt. Ltd. is a separate legal entity
and have separate Memorandum of Article. The civil suit filed cannot
establish that both the establishment are one establishment. The workmen
has to established that the both managements are one establishment with
cogent and ocular evidence. In the instant case, there is no such evidence
to prove that both managements are one establishment and workmen are
one employee of management no.2. Thus the issue no.2 & 5 are decided
infavour of the management.
ISSUE NO.3
Whether the manufacturing unit of management no.1 had
DID Workmen Vs. Ragnik Exports Pvt. Ltd. 16 page out of 29
been closed and if so, its effect?
The management has pleaded that the claim of the
workmen are not maintainable as manufacturing process of the
management's has also been closed and the due notice was submitted to
the concerned parties including the claimants also. The due amount of
the claimants have already been paid on 18.05.10. The workmen in
rejoinder to the written statement has denied the averments made and
submitted that the closure of the manufacturing process of unit does not
mean that the management has closed its entire business. The
manufacturing unit is one part of the management no.1. The management
no.1 has not complied with the statutory obligation while closure of the
manufacturing process of management no.1 and there is no official
communications from the competent authority regarding the closure of
the management no.1. The burden of proof to this effect is lying on the
management no.1 to prove that the managements no.1 manufacturing
process has been closed. The workmen stated that management
intentionally did not summoned the record of the management, to conceal
the material facts in order to prove the closure, as such adverse inference
will be drawn against the management. The management has examined
MW1 Mr. Nageshwar, from M/s Ragnik Export Pvt. Ltd. and Surender
Verma for M/s Ragnik International and they testified that:
"........... It is correct that the management is still running
DID Workmen Vs. Ragnik Exports Pvt. Ltd. 17 page out of 29
at Plot No.4, BlockA, Infocity Sector 34 Gurgoan also.
Voluntarily, it is functioning since long. .........In Delhi
management is running at BT/211, Mangole Puri
Industrial Area, Delhi. ........Presently, I am working in
Mangolpuri factory of the management. .......I do not know
as to whether the management is still running in
Mangolpuri. .......it is correct that Ex.MW1/1 is a
photocopy........"
MW1 Surender Verma, witness for Ragnik International
has stated that that:
" .......It is correct that the management is still running
at Plot No.4, BlockA, Infocity Sectior34, Gurgoan also.
Voluntarily, it is functioning since long....." In Delhi,
management is running at BT/211, Mangolpuri Industrial
Area, Delhi. ........ presently, I am working in Mangolpuri
Factory of the management. I do not know as to whether
the management is still running in Mangolpuri. ............ it
is correct that Ex.MW1/1 is a photocopy."
The workmen also relied upon Hon'ble Madrass High Court
in the matter of Ramaratanam K.S. Vs. Labour Court and Anr. 2002
IILLJ1166, whereas has held that:
DID Workmen Vs. Ragnik Exports Pvt. Ltd. 18 page out of 29
" where a part of industry is closed down and it has a functional
integrity with the other part of the industry, then it will amount to
rationalization as mentioned in 4th schedule item 10 and if any
retrenchment take place as a result of rationalization, management is
bound to give notice under section 9A of the Industrial Dispute Act,
1947 otherwise their retrenchment will be illegal. Even in our case,
workmen pleaded that management had violated section 9A of the
Industrial Dispute Act, 1947. Furthermore, management witness
admitted in their cross examination no notice under section 9A was
given to the workmen. As such, their retrenchment will be illegal. ."
The management has relied upon document Ex.MW1/1 to
Ex.MW1/7 and the MW1 Nageshwar in his cross examination has stated
that:
"........ I did not bring the original of Ex.MW1/5. It is
correct that Ex.MW1/5 not filled or signed in front of
me. It is correct that Ex.MW1/1 is photocopy. It is
denied that the documents Ex.MW1/2, Ex.MW1/3 &
Ex.MW1/7 are false and fabricated document or that
Ex.MW1/2, MW1/3, & MW1/6 were never sent to the
address mentioned in it.
The management witness MW Surender Verma has also
made deposition in the same manner, however, authenticity and
genuineness of the documents have not been proved in accordance with
Law of evidence.
This view is also strengthen by judgement in case of Express
News Papers (p) Ltd. Vs. Their workmen, AIR 1963 SC 59: 1962II
LLj227 wherein, the Supreme court has held that:
DID Workmen Vs. Ragnik Exports Pvt. Ltd. 19 page out of 29
"closure shall mean closure of business of the management and not
closure of a particular place of business."
According to section 2(cc) of the Industrial Disputes Act, 1947 closure
means "permanent closure of the business and it does not mean
temporary closure. The contention that subsequently somebody else was
appointed goes to prove that there was no closure at all.
The workmen with respect to the judgement relied by the
management as District Red Cross Society vs. Babita Arora & Others,
2007 LLR 1125 SC has contended that the above said judgement has no
relevance in case. Hon'ble Supreme Court has held that for a closure of
industry, it is not necessary that the whole establishment of the employer
shall be closed down. If a unit or part of an undertaking which has no
functional integrity with other unit is closed, it would amount to closure.
There is no dispute to this preposition of law. Therefore, with respect to
the closure of the Industry even though the necessary provision for the
closure has not been followed by the management nor approval from any
authority for closure of the management was taken place. The
management no.1does not establish that the management establishment
has been closed completely.
Section 2A of the I.D. Act defined that: " the procedure of
the closure with the term & condition of the closure with prior
permission for the closure of the management."
In the instant case, the establishment was closed of
management no.1 but there is no approval taken. The benefit of closure to
the employees of the management no.1 has not been extended. The
DID Workmen Vs. Ragnik Exports Pvt. Ltd. 20 page out of 29
management witness in their cross examination on behalf of the workmen
is categorically admitted that the management is still running at Gurgoan
as well as Manolpuri. There was no approval/sanctioned from the
competent authority for closure of factory was placed on record.
Accordingly, this issue is decided in favour of workmen.
ISSUE No.1
Whether the services of the workmen illegally and/or unjustifiably
was terminated by the management on 03.04.2010?
The management no.1 in the written statement has contented
that the terminal benefit of workmen was given on 18.05.10 which the
claimant has received by reserving their rights. The services of the
claimant was changed as per the terms of the employment. There is no
change of service condition. The closure have been done in accordance
with the rule & procedure as prescribed under law. All the employee of
the management was terminated retrenchment and compensation has
been paid before the Labour Department. There is no intention of the
management that after closure of the management unit the claimant are
not entitled for any relief. The amount as per their entitlement are
received by the workmen after the closure of the manufacturing process
vide letter Ex.MW1/4. The copy of the document and postal receipt are
Ex.MW1/5, 6, & 7. MW1 Nageshwar Kumar/Surender Verma has not
placed on record any original document as summoned through
DID Workmen Vs. Ragnik Exports Pvt. Ltd. 21 page out of 29
application filed by the workmen. The Industrial Dispute of general
demand is still pending in the Industrial Tribunal. He do not know if the
management has taken the permission/approval from the court of Sh.
Mahavir Singhal, Ld. Industrial Tribunal, Delhi before retrenchment of
the service of the workmen. He do not know if the workers are the
member of the union. It is admitted that no notice u/s 9A was given to
the workmen. It is remembered that whether the management has offered
the notice pay and compensation on 03.04.10. Whether the management
has offered the notice pay or compensation on 13.05.10 under protest. It
is denied that the calculation of retrenchment compensation was wrong.
He do not know how to calculate the compensation u/s 25F. The
management did not pasted any seniority list before retrenching the
workmen. He do not know as to whether junior to the workmen were
retained in the service at the time of retrenchment of the workmen. It is
admitted that management received Ex.WW1/6. It is also admitted that
complaint Ex.WW1/4, 1/5 & 1/3 was filed against the management
before the Labour Department. He do not know if the management has
taken the permission from the govt. before retrenchment of the workmen.
It is denied that the management has wrongly retrenched the workmen by
violating the statutory provision of Section 9A, 25G, F,H, FFF, N and
sec.33. It is also denied workmen has never taken the full and final
settlement from the management. He do not know as to whether the
workmen are unemployed from the date of their retrenchment.
DID Workmen Vs. Ragnik Exports Pvt. Ltd. 22 page out of 29
On the other hand, the workmen in their affidavit have
stated that the retrenchment made by the management are not follow the
various provision of Industrial Dispute Act. The procedure of closure and
retrenchment has not been strictly followed by the management. In cross
examination it is testified that the Industrial Dispute of the general
demand is pending in the court of Sh.Mahavir Singh, Industrial Dispute.
It is denied that the management has never retrenched them but it has
closed its manufacturing unit. It is also denied that the retrenchment is
legal. It is admitted that the workmen have received the amount as
mentioned in para no.7 of the affidavit, against the service benefits which
have received under protest.
The AR for workmen have submitted that management has
violated the provision of section 33 of Industrial Dispute Act, 1947. The
industrial dispute was pending before Sh. Mahavir Singhal, Ld. industrial
adjudicator and the workmen had accepted the term of the reference of
the aforesaid dispute, this fact has also been mentioned in para no.4 of the
claim. The witness of the management has also admitted this fact in his
cross examination. The workmen has relied upon judgment of Hon'ble
Supreme Court in M/s Lokmat Newpapers (P) Ltd. and Shankar
Prasad 1999 (83) FLR 684 page 700 para 30 has held that:
" The appellant management had committed breach of section 33
(1) of the Act by not passing the said order after obtaining express
previous permission in writing of the conciliation officer before
whom the conciliation proceedings must be held to be pending in
the evening of 2261982. the impugned retrenchment order must
DID Workmen Vs. Ragnik Exports Pvt. Ltd. 23 page out of 29
be held to be illegal being contrary to the aforesaid provision of
the I.D. Act point no.2 is, therefore, answered in affirmative
against the appellant and in favour of the respondent."
It is further pleaded by authorized representative of the workmen that the averments made before the Ld. Industrial adjudicator is applicable to all the management. The workmen has proved that management is still running its establishment and there were more than 100 worker are working with the management. The MW1 has made that there were 100 worker are working with the management. The workmen has also specifically pleaded this fact in para no.3 of the statement of claim and para no.3 of the affidavit. The workmen summoned the service records while moving the application dt. 13.12.12. The above said application was allowed and the management was directed to produce the service records i.e. wages register, muster roll for the relevant period, however, despite the direction of the court, the management failed to produce the said documents. This view is also strengthen by judgement of Hon'ble Delhi High Court titled as Automobile Association of Upper India Vs. Presiding Officer, Labour Court, 2006 LLR 851 has held that:
" the workmen can make an appropriate application calling upon the management to call such records in respect of his employment to be produced. In these circumstances, if the management then fails to produce such record, an adverse inference is liable to be drawn against management and in favour of the workmen.
As such adverse inference is drawn against the management. It is alleged by the workmen that the management failed to follow any of DID Workmen Vs. Ragnik Exports Pvt. Ltd. 24 page out of 29 the precondition for retrenchment of the workmen. The retrenchment of the workmen are false and fabricated which have been shown from the evidence and the material on record. The workmen also relied upon judgement of Supreme Court Uttranchal Forest Development Corporation V/s Jabar Singh, 2007 (113) FLRI has held that:
"where is a violation of section 25N of the Industrial Dispute Act, 1947, retrenchment order of the management shall be illegal and void.
It is also matter of record that the claimant has received retrenchment compensation under protest. They were not satisfied for the said retrenchment compensation as same is less and wrong base is made by the management from the date of appointment while calculating the same. There is violation of section 25(B) of the Industrial Dispute Act, 1947. The workmen through rejoinder has made balance amount of less compensation as required to be payable to the workmen. It is also pleaded by workmen that while terminating the services of the workmen without follow the provision of 25B & rule 76 of the Industrial Dispute Act and (Central) rule. The hon'ble Supreme Court in the matter of Nar Singh Pal V.s Union of India & Others 2000 LLR577 has held that:
" mere receiving of retrenchment compensation will not prevent the workmen from challenging his illegal termination order."
The management is bound to prepare the seniority list before retrenching the workmen otherwise retrenchment order will be DID Workmen Vs. Ragnik Exports Pvt. Ltd. 25 page out of 29 illegal. It is further observed that the management has violated the provision of 9A & 33 of the I.D Act 1947 while terminating the services of workmen.
From on going discussion and the material placed on record it revealed that services of the workmen have been illegally and unjustifiably terminated by the management without follow the statutory provision and principal of natural justice. Therefore, the issue no.1 is decided in favour of workmen.
RELIEF The claimants prayed to declare the termination dt. 03.04.10 as illegal and unjustifiable while payment of 100 % back wages alongwith reinstatement in service with continuity of service with the same management. The management be further directed to pay 18 % interest on account of back wages. While submitting the affidavit of workmen, it is alleged that the workmen has not resigned the service after receiving the full & final settlement under protest. While receiving the amount of alleged retrenchment compensation does not mean to be full & final settlement as such workmen are entitled for the adequate retrenchment compensation. The assessments of full & final settlement by management are illegal. The workmen alleged that the workmen are unemployed from the date of termination and they cannot get any employment even after made great efforts, in different management. The workmen in their cross examination have stated that they are unemployed DID Workmen Vs. Ragnik Exports Pvt. Ltd. 26 page out of 29 since the date of termination. It is denied that they are gainfully employed. On the other hand, the management has not rebutted these deposition by any ocular or trustworthy evidence, either in their affidavit or in written statement. There is no cross examination of the workmen with respect to the gainful employment. The workmen have repeatedly said in deposition in affidavit as well oral testimony that the management is still running and earning the huge profit as shown from the material on record. There is no dispute of the date of termination and last drawn salary of the workmen as stated in the statement of claim. The workmen have repeatedly alleged to record inadequate retrenchment compensation and it is wrongly based on wrong calculation made by management while considered the date of appointment with the compensation as paid. The workmen has received the retrenchment compensation though it is inadequate amount of reemployment of the workmen against their illegal termination. Though not be paid adequately compassionate in accordance with the closure benefit as well as to pay their retrenchment compensation in alleged termination apart from proportionate of the back wages. There is no document to show that the workmen are unemployed despite their best efforts for the reemployment after being termination from the service of the management. They have not filed any document to show that whether they have made efforts to enrolled themselves in any employment exchange for reemployment or placed any application for seeking employment in any other management. Thus, the workmen are DID Workmen Vs. Ragnik Exports Pvt. Ltd. 27 page out of 29 entitled to pay the lumpsum compensation in lieu of reinstatement in service & back wages etc. In judgment of State of Chhattisgarh & Anr.Vs. Umendi & Ors. 2011LLR581, Hon'ble High Court of Chhattishgarh has held that:
" Compensation of Rs.1 lakh, in lieu of reinstatement and backwages will be appropriate relief when the services of the workman were terminated without payment of retrenchment compensation and one month's notice or wages in lieu thereof."
In another case Suresh Chander Vs. Nagar Palika, Rajsamand & Anr. 2011LLR654, hon'ble Rajasthan High court has observed that:
" Even when the termination of a workman is held to be illegal, the relief of reinstatement with backwages is not automatic since the courts can grant compensation in lieu of reinstatement and back wages.
Accordingly, in view of the aforesaid discussion, facts and circumstances, the management contended that the manufacturing process of the unit has already been closed. As such the question of reinstatement in service does not arise to consider the length of service and previous compensation, all the workmen be awarded Rs.50,000/ (Fifty Thousand only) as lump sum compensation in lieu of reinstatement and back wages etc. The Claims are answered accordingly.
Copy of award be sent to the Secretary Labour, Govt. of NCT, Delhi for publication of the award. One copy of the award be also sent to DID Workmen Vs. Ragnik Exports Pvt. Ltd. 28 page out of 29 Civil Court for execution in accordance as per rules. Copy of the award be also kept in each separate file. The award be also sent to server (www.delhicourts.nic.in).
File be consigned to Record Room.
Announced in Open Court on this 19th August, 2013 (SATINDER KUMAR GAUTAM) Additional District & Sessions Judge Presiding Officer, Labour Court, Karkardooma Courts, Delhi.
DID Workmen Vs. Ragnik Exports Pvt. Ltd. 29 page out of 29