Delhi District Court
An Industrial Dispute Between The ... vs P.O. Labour Court Ii 2006 Llr 85 on 23 February, 2010
ID No.3/09
1
IN THE COURT OF SH. MANMOHAN SHARMA
PRESIDING OFFICER, LABOUR COURT NO. XII,
KARKARDOOMA COURTS, DELHI.
ID No.3/09
INDUSTRIAL DISPUTE BETWEEN
Sh. Chandeshwar & Ors.
C/o All India General Mazdoor Trade Union,
163, Balmukund Khand, Giri Nagar, Kalkaji,
New Delhi - 110 019
........Workmen
AND
1.M/s Batra Expo International B72, Naraina, PhaseII, New Delhi - 110 028
2. M/s Batra Expo International A41, Naraina Industrial Area, PhaseII, New Delhi - 110 028 ......Management Date of Institution : 31.01.2000 Argument concluded on : 15.02.2010 Date of award : 23.02.2010 AWARD
1. An Industrial Dispute between the managements of M/s Batra Expo ID No.3/09 2 International, B72, Naraina, PhaseII, New Delhi - 110028 and M/s Batra Expo International, A41, Naraina Industrial Area, PhaseII, New Delhi - 110028 and its workmen Sh. Chandeshwar & Other Workmen C/o All India General Mazdoor Trade Union, 163, Balmukund Khand, Giri Nagar, Kalkaji, New Delhi - 110019 was referred by Secretary (Labour), Government of National Capital Territory of Delhi for adjudication in exercise of powers conferred by Section 10 (1) (c) and 12 (5) of the Industrial Dispute Act 1947 (in short Act) vide his Order No. F.24 (5409)/ 99-Lab./08792 dated 03.01.2000 with the following terms of reference:
"Whether the services of the workmen shown in Annexure 'A' have been terminated illegally and/or unjustifiably under the garb of closure, and if so, to what relief are they entitled and what directions are necessary in this respect?"
PROCEEDINGS
2. Notice of the reference was issued to the workmen who appeared and filed their joint statement of claim. Notice of the claim was issued to ID No.3/09 3 the management. Management contested the claim by filing written statement. The workmen filed a rejoinder.
PLEADINGS
3. In brief the Statement of Claim of the workmen had alleged that they were working continuously with the management on different posts as per the details given in the statement of claim as regards their names, posts, year of joining and last drawn wages. There was no cause of complaint against them. The management was not extending the legal benefits and facilities to the workmen. The workmen raised their demands through Union before the Assistant Labour Commissioner on which the Management was summoned. The management got infuriated and with a spirit of vengeance started indulging in unfair labour practices.
4. It is alleged that the management was employing more than 100 workmen. Therefore it is under an obligation to conform to the provisions of the Industrial Disputes Act.
5. As a sequel the workmen were terminated on 11.10.1999 without any ID No.3/09 4 justifiable cause or without holding any enquiry. They were not paid any notice pay or compensation in accordance with law. Their wages for the period 1.9.1999 to 10.10.1999 were also withheld.
6. It is alleged that the workmen sent a demand notice by registered AD/Speed Post on 11.10.1999 to the management. The management neither replied nor complied with the terms of the notice. The workmen also gave a written complaint to the Assistant Labour Commissioner but the management refused to reinstate the workers or pay their wages.
7. It is alleged that the termination of services of workmen is in contravention of the labour laws. Various unfair labour practices have been alleged against the management.
8. The workmen have stated that the management is carrying out its business at F41, PhaseII, Naraina, New Delhi28 and has employed new workers.
9. The workmen have also alleged that they could not get any employment and are unemployed. They have prayed for reinstatement ID No.3/09 5 with all consequential benefits and full back wages.
10. The management contested by filing a Written Statement.
11. In brief the management alleged that a bunch of workmen have settled their claims and dues with the management and their names have been stated in para 1 of the preliminary objection.
12. It was alleged by the management that the claim of the claimant Vinod Kumar was not maintainable on the ground of his not being a workman as defined U/s 2 (s) of the I.D. Act.
13. It was alleged that the workmen/claimants whose names are stated in para 3 of the Written Statement had never worked under the control and supervision of the management and therefore their claim is not maintainable there being no employeremployee relationship.
14. It is also alleged that the management has closed down its establishment on 21.10.1999 and therefore the claim was not maintainable.
15. On merits the management denied each and every averment of the ID No.3/09 6 claim and prayed for dismissal of the claim.
16. Workmen filed rejoinder in which they controverted the averments made in the amended written statement and reaffirmed those as contained in the statement of claim.
ISSUES
17. From the pleadings following issues were framed by my Ld. Predecessor on 17.8.2001 :
1. As per terms of reference.
18. Both the parties were directed to lead evidence on the issues.
19. The following workmen filed their affidavits in evidence and submitted themselves for cross examination.
(i) WW1. Sh. Satya Narain S/o Sh. Bahadur Singh
(ii)WW2 Sh. Rajiv Kumar S/o Sh. Hari Singh
(iii)WW3 Smt. Laxmi W/o Sh. Ravi Kumar
(iv)WW4 Smt. Asha Kumar Verma W/o Sh. Amar Singh ID No.3/09 7
(v)WW5 Smt. Seema W/o Sh. Sohan Lal
(vi)WW6 Sh. Rohit Prasad S/o Sh. Ram Savar Dharay
(vii)WW7 Sh. Ram Naresh S/o Sh. Kanhaiya Lal
(viii)WW8 Sh. Dinesh S/o Sh. Ram Ashish Rai
(ix)WW9 Sh. Ranjeet S/o Sh. Ram Naresh
(x)WW10 Sh. Prem Chand S/o Sh. Ram Narain
(xi)WW11 Sh. Kamal Kishore S/o Sh. Vilayati Ram
(xii)WW12 Sh. Ajay Singh S/o Sh. Siya Ram
(xiii)WW13 Sh. Ganesh Singh S/o Sh. Shiv Shanker Singh
(xiv)WW14 Sh. Shamshad S/o Mohd. Suleman
(xv)WW15 Sh. Amrit Lal S/o Sh. Moti Lal (xvi)WW16 Smt. Pinki W/o Sh. Ram Nageena (xvii)WW17 Sh. Chandeshwar Gupta S/o Sh. Suraj Gupta (xviii)WW18 Sh. Amit Kumar S/o Sh. Vasudev Singh (xix)WW19 Sh. Siya Ram S/o Sh. Ram Prakash (xx)WW20 Smt. Seema W/o Sh. Kanhaiya Lal
20.The workmen tendered the following documents in their evidence: ID No.3/09 8
(i). Ex. WW1/1: Complaint dated 06.09.1999 to ALC.
(ii). Ex. WW1/2: Report dated 01.10.1999 of Labour Inspector.
(iii). Ex. WW1/3: Complaint dated 06.09.1999 to Factory Inspector.
(iv). Ex. WW1/4: Demand Notice dated 18.09.1999.
(v). Ex. WW1/57: Postal Receipts & AD Card.
(vi). Ex. WW1/8: Complaint dt. 15.10.1999 to Conciliation Officer.
21.The management examined Sh. Devender Kumar Manager as MW1.
The management also filed affidavit on one witness Shri Amar Pal Singh but he never entered into the witness box. No document was tendered by the management in the evidence.
ARGUMENTS
22. Both parties had addressed oral arguments. The Management also filed written arguments on record. Oral arguments were finally addressed on 05.02.2010. The parties were given liberty to file citations of law by 15.02.2010. None of the parties availed the opportunity. Thus the arguments were deemed to be concluded on 15.02.2010. ID No.3/09 9
23.The AR of the workman argued that the management has failed to prove the closure of the factory. Thus the defence of the management failed. The management has not proved any documentary evidence regarding the closure. The witness of the management has given his affidavit on the basis of hearsay. He could not stand by his examination in chief when he was crossexamined. The management ought to have given the compensation in accordance with law to the workmen if it had closed the factory. That having been not done the closure is illegal thus rendering the termination as illegal and unjustified. The management is still carrying on the business. Therefore all the workmen are entitled to be reinstated with full back wages and continuity of service.
24.It has been argued by the management that the workmen had failed to produce any documentary evidence to show the existence of employer employee relationship. The workmen have admitted in their cross examination that the management concern was closed on 21.10.1999. Thus their case fails. The AR of management also cited case law. ID No.3/09 10
25.No other point was urged.
APPRECIATION OF EVIDENCE, FINDINGS & REASONS
26. My findings on issue are as under.
ISSUE NO.1: As per terms of reference:
27. The rival facts of the present case require inquiry into the facts whether each of the the contesting workmen has been able to show the relationship of employer and employee visàvis the management and themselves. If the answer comes in affirmative then the Court has to examine the fact if the management has lawfully closed it factory or has terminated the services of the workmen illegally or unjustifiably. Thereafter the Court has to consider the question of relief.
28.It has been held by the Hon'ble High Court of Delhi in Automobile Association of Upper India Vs. P.O. Labour Court II 2006 LLR 851 that the burden of proving a plea rests upon the person so claiming. The primary burden to establish the relationship of employment also lies on the workman who is claiming the same.
ID No.3/0911
29.On this aspect the management has relied upon Manager RBI Vs. S. Mani (2005) 5 SCC 100; Ranip Nagar Palika Vs. Babuji Gabhaji Thakore (2007) 13 SCC 343; Management of Kumar Bros. Co. Vs. Jai Prakash Mistry (WPC No. 31973201/2006 decided on 20.08.2009) and Suresh Bharati VS. Kapil Industries MANU/DE/8864/2006 in support of its plea that the workmen have failed to prove the employer employee relationship, the onus of which was on them.
30.The management in the affidavit dated 20.03.2008 of Shri Amar Pal Singh has admitted in para 2 that Shri Ganesh Singh (WW13) and Shri Chanderswar Gupta (WW17) were its employment of the management. It was also alleged that they had taken their full and final settlement.
31.Though the deponent of the affidavit dated 20.03.2008 namely Shri Amar Pal Singh never entered into the witness box but the management cannot recluse from the admission made by him. The statement or admission given by the said person in his affidavit cannot be used by the management in its favour (i.e. as selfserving) but the same can be used ID No.3/09 12 against the management (i.e. selfharming). Thus the management is bound by his admission as regards the claimants Shri Amar Pal Singh has admitted in para 2 that Shri Ganesh Singh (WW13) and Shri Chanderswar Gupta (WW17) being its workmen.
32.The workmen WW1 Sh. Satya Narain S/o Sh. Bahadur Singh; WW2 Sh. Rajiv Kumar S/o Sh. Hari Singh; WW3 Smt. Laxmi W/o Sh. Ravi Kumar; WW4 Smt. Asha Kumar Verma W/o Sh. Amar Singh; WW5 Smt. Seema W/o Sh. Sohan Lal and WW6 Sh. Rohit Prasad S/o Sh. Ram Savar Dharay have admitted in their evidence that they do not have any proof of their employment with the management.
33.WW7 Sh. Ram Naresh S/o Sh. Kanhaiya Lal stated in his cross examination that except gate pass he has no other proof of his working with the management. In his examination in chief he relied upon eight documents only i.e. Ex. WW1/1 to Ex. WW1/8. No gate pass was exhibited either in the examination in chief or in the crossexamination of this witness. Minutes of proceedings dated 26.09.2003 do not bear any ID No.3/09 13 reference to the filing of any such document. There is only cross examination on this aspect. In his oral examination the workman WW7 had admitted that the gate pass is neither signed by the proprietor/owner nor there is mention of the management on the same. Thus this clinches the issue and no link of employeremployee relationship is established between the management and the workman WW7.
34.The workman WW8 Sh. Dinesh S/o Sh. Ram Ashish Rai has stated in his crossexamination that he has got proof that he worked with the management. No such proof was produced by him either on the day of his examination or subsequently. Thus it can be presumed that he did not have any such proof. Had it been in existence the workman would have brought the best evidence before the Court.
35.The workman WW9 Sh. Ranjeet S/o Sh. Ram Naresh has admitted that he has no proof that he was working with the management.
36.The workman WW10 Sh. Prem Chand S/o Sh. Ram Narain stated that he has proof to show that he worked with the management. No such ID No.3/09 14 proof was produced by him either on the day of his examination or subsequently. Thus it can be presumed that he did not have any such proof. Had it been in existence the workman would have brought the best evidence before the Court.
37.The workman WW11 Sh. Kamal Kishore S/o Sh. Vilayati Ram stated in his crossexamination that he was issued letter of appointment by the management in 1996. He further stated that he had not filed the same in the Court. Thus an adverse inference can be drawn against him and it can be presumed that no such appointment letter was issued by the management.
38.The workman WW12 Sh. Ajay Singh S/o Sh. Siya Ram stated that he has proof to show that he worked with the management. No such proof was produced by him either on the day of his examination or subsequently. Thus it can be presumed that he did not have any such proof. Had it been in existence the workman would have brought the best evidence before the Court.
ID No.3/0915
39.The crossexamination of WW13 Ganesh Singh son of Shri Shiv Shanker reveals that the management did not challenge the employer employee relationship visàvis him. This coupled with the admission discussed above establishes the employer employee relationship.
40.The witness WW14 Sh. Shamshad S/o Mohd. Suleman stated in his cross examination that he has no proof at that time nor had filed any such proof to show employer employee relationship.
41.The workman WW15 Sh. Amrit Lal S/o Sh. Moti Lal stated that he has proof to show that he worked with the management. No such proof was produced by him either on the day of his examination or subsequently. Thus it can be presumed that he did not have any such proof. Had it been in existence the workman would have brought the best evidence before the Court.
42.The witnesses WW16 Smt. Pinki W/o Sh. Ram Nageena; WW18 Sh. Amit Kumar S/o Sh. Vasudev Singh; WW19 Sh. Siya Ram S/o Sh. Ram Prakash and WW20 Smt. Seema W/o Sh. Kanhaiya Lal have admitted that they have no documentary proof of their employment with the management. ID No.3/09 16
43. At the time of addressing final arguments the AR of the management had filed photocopies of certain documents with inscription 'Ex. PW1/10'. These documents are photocopies of ESI Cards of Shri Kamal Kishore; Shri Amrit Lal; Shri Satya Narain Singh; Shri Rajeev Kumar and Shri S. M. Shamshad. One other document is a photocopy of EPF statement of Shri Rajeev Kumar. The workman never tendered these documents in their evidence and brought their photocopies only at the time of final arguments. The originals were also not produced. No application for leading additional evidence to prove these documents was filed. The management was never confronted with the said documents as having been issued to the workman concerned by virtue of his employment with the present management.
44. In this respect it is useful to refer to the case of Food Corporation of India Workers Union Vs. The Food Corporation of India & Another 1996 (74) FLR 1893 (SC) wherein it has been held:
"...The approach made by the Tribunal even in the ID No.3/09 17 matter of marshalling or considering the material placed before it, seems to be wrong for the following reasons. The tribunal was apparently of the view, that there should be 'evidence' to prove the facts, as per the provisions of the Evidence Act. It is not so. The Tribunal is not a Court. There should be only 'material' and not evidence as required by the Evidence Act..."
45.In view of the above case law though the Labour Court is not bound by the strict rules of evidence yet the cardinal principle is that the adversary should have adequate notice and opportunity which is enshrined in the golden rule of audi alteram partem. The casual manner in which the photocopies of the documents has been filed unsupported with any affidavit of the workmen concerned leads to only presumption that the workmen do not themselves believe in the sanctity of those document(s). These documents thus cannot be considered in evidence.
46.The documents Ex. WW1/1 to WW1/8 are in the nature of selfserving documents. These documents have been authored by the workmen or by ID No.3/09 18 the Union on their behalf. They do not help the workmen in the establishment of employer employee relationship. These documents are only indicative of raising of an industrial dispute. Nothing more, nothing less.
47.The onus to prove the closure of the factory was on the management. The management has examined only one witness as MW1.
48.The evidence of MW1 Shri Devinder Kumar makes an interesting reading. His examination in chief is contained in his affidavit Ex. MW1/A which has been verified by him on the basis of his knowledge based on records. What records? The witness has not specified.
49.MW1 has admitted that he has not personally seen any record of the management for preparing his affidavit Ex. MW1/A. He has admitted that no such record is traceable. He has also admitted that he has given his deposition on the basis of the information furnished by the management. Thus the evidence of MW1 has no legs to stand upon as hearsay has no sanctity, as the person giving evidence on the basis of hearsay can ID No.3/09 19 always disown his statement and pass the buck.
50.Thus through its own witness the management has failed to prove the closure of the factory.
51.However the only saving grace for the management is that the workmen in their crossexamination have admitted the closure of the factory. As the facts which are admitted need not be proved, the management the yoke of burden of proof was removed from the shoulders of the management by the admission of the workmen. There is no evidence on record to establish that the management is carrying on its business at the other address through other workers. No names of such workers have been mentioned by the workmen. There is no other material to infer that the management is continuing its business at the given address.
52.Thus the total effect of above discussion is that the relationship of employer and employee in respect of the management of Batra Expo Internation could only be established in respect of the workmen Shri Ganesh Singh (WW13) and Shri Chanderswar Gupta (WW17). The ID No.3/09 20 relationship could not be established in respect of remaining 18 contesting employees.
53.The closure of the factory of the management is also established on record. There is no evidence that the management had employed 100 employees or more.
54.Though the management has taken the plea that the workmen Shri Ganesh Singh (WW13) and Shri Chanderswar Gupta (WW17) have received their full and final settlement there is no evidence led by the management on this aspect.
55.The workman Shri Ganesh Singh (WW13) has denied the suggestion to this aspect. The management has produced no evidence like receipt, payment voucher or any acknowledgement by the workman to this effect. The onus to prove the settlement was on the management. It cannot be believed that the management would have paid the compensation or settlement amount without obtaining any receipt from the workman.
56.The workman Shri Chandeshwar Singh (WW17) has admitted that he all ID No.3/09 21 his due salary. He admitted having received Rs. 1500/ by the management during the conciliation proceedings but stated that it was his salary for 10 days in Oct. 99. He denied the suggestion regarding settlement. The management has produced no evidence like receipt, payment voucher or any acknowledgement by the workman to this effect. The onus to prove the settlement was on the management. It cannot be believed that the management would have paid the compensation or settlement amount without obtaining any receipt from the workman. Though the last drawn salary of this workman is admittedly Rs. 3300/ per month and the 10 days salary could be Rs. 1100/ or less and not Rs. 1500/ but this amount does not correspond to one month's notice pay or retrenchment compensation. Thus the management could not prove full and final settlement with this workman.
57.If the management has closed the factory it was duty bound to pay the legal compensation to the workmen. The workmen have filed on record a document marked as WW1/9 (not formally tendered or proved in ID No.3/09 22 evidence) which is photocopy of a notice dated 21.10.1999 purported to have been issued by the management intimating closure and directing the workman to take their dues. Even if this document is admitted to have been issued by the management the same cannot be termed as compliance with the provisions of the Industrial Disputes Act regarding closure/retrenchment etc. It was incumbent upon the management to intimate the workmen about the closure and simultaneously tender the legal compensation to them. The legal obligation of the management, as fixed by the law, cannot be delegated to the workmen.
58.Thus the termination of the service of the workmen Shri Ganesh Singh (WW13) and Shri Chanderswar Gupta (WW17) is illegal and unjustifiable for the above reasons.
59. This issue is accordingly answered in the above terms against the management and in favour of the workman.
60. When it has been established on record that the termination of the service of a workman has been illegal or unjustified the question arises ID No.3/09 23 as to what relief is to be granted to the workman.
61. In a judgment reported as Indian Hydraulic Industries Pvt. Ltd. Vs Kishan Devi and Bhagwati Devi and Others: ILR (2007) I Delhi 219 their Lordships in paragraph 5 of the judgment observed that it is now settled law that even if the termination of a person is held illegal, Labour Court is not supposed to direct the reinstatement alongwith full back wages and the relief can be moulded according to the facts and circumstances of each case.
62. It has been laid down in Talwar Coop. Credit and Service Society Limited Vs. S. Kumar 2009ILLJ328(SC) and in UPSEB Vs. Laxmi Kant Gupta 2009LLR1 that the grant of back wages is purely discretionary.
63. In U.P. State Brassware Corporation Ltd. Vs. Uday Narain Pandey JT 2005 (10) SC 344 it has been held that 'a person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the function of an Industrial Court shall lose much of ID No.3/09 24 its significance.'
64. Hon'ble High Court of Delhi in case titled Management of Asiatic Air Conditioning and Refrigeration Pvt. Ltd. Vs. Presiding Officer Labour CourtX and Another 2005ILLJ79 has laid down a number of illustrative criteria while considering the issue of back wages.
65.It is in this backdrop of law the aspect of relief is to be examined.
66.The workman WW13 Shri Ganesh Singh joined the services of the management only in 1998 (specific date not mentioned). His services were terminated on 21.10.1999. His post was of Checker. His last drawn wages were Rs. 1800/ per month. The workman at the most has one year's completed service to his credit.
67.The workman WW17 Shri Chandreshwar Gupta joined the services of the management on 20.07.1994. His services were terminated on 21.10.1999. His post was of Plate Machine Man. His last drawn wages were Rs. 3300/ per month. The workman has five year's completed service to his credit.
ID No.3/0925
68. Both the workman have denied having been gainfully employed after the termination. Both have admitted in their crossexamination that they did not get their names registered in the Employment Exchange.
69.When the management has closed its factory the substratum for directing reinstatement of the workmen does not subsist.
70.Taking a total assessment in my view the interest of justice would be served by awarding compensation in lieu of reinstatement, back wages etc. in view of the peculiar facts of the case.
71.Keeping in view the length of service, last drawn wages, possibility of reemployment, closure of the factory, time spent in litigation, inflation and other relevant factors the interest of justice would be served by awarding lump sum compensation of Rs. 8000/ (Rupees Eight Thousand Only) to WW13 Shri Ganesh Singh and lump sum compensation of Rs. 22,000/ (Rupees Twenty Two Thousand Only) to WW17 Shri Chandreshwar Gupta in lieu of reinstatement, back wages etc.
72.The compensation amount be paid to the workman by the management ID No.3/09 26 within 30 days of the publication of the award failing which the management shall be liable to pay interest @ 10% per annum from the date of publication.
73.The claim of remaining 18 contesting claimants as named in para 19 above is dismissed for want of employeremployee relationship.
74.A no dispute award is passed in respect of remaining 68 workmen as listed in Annexure 'A' of the reference Order No. F.24 (5409)/99- Lab./08792 dated 03.01.2000.
75.Award is passed accordingly. Copy of the award be sent to the Secretary (Labour), Government of National Capital Territory of Delhi for necessary action. The award be also sent to server (www.delhicourts.nic.in). The file be consigned to record room. ANNOUNCED IN THE OPEN COURT ON 23 DAY OF FEBRUARY 2010 rd (MANMOHAN SHARMA) PRESIDING OFFICER LABOUR COURT NO.XII, KARKARDOOMA COURTS, DELHI.