Delhi District Court
Smt. Manju & Anr. vs . M/S. Sunil Upper Id No. 444/12 on 25 February, 2015
Smt. Manju & Anr. Vs. M/s. Sunil Upper ID No. 444/12
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI :
KARKARDOOMA COURTS : DELHI.
REFERENCE CASE (ID) NO. 444/12
UNIQUE CASE IDENTIFICATION NO. 02402C0370152012
In the matter of :
(i) Smt. Manju w/o. Sh. Akhilesh Chand
and (ii) Sh. Sandeep s/o. Sh. Akhilesh Chand
Both R/o. H.No A401, Gali No5,
Sharda Vats Enclave, Prem Nagar,
New Delhi.
C/o. General Mazdoor Union (Regd.)
T43, Karampura, Near Haryana Dharamshala,
New Delhi110015. ...... Workmen
Vs.
M/s. Sunil Upper,
B7 & 8, Rajdhani Park,
Nangloi, New Delhi41 ..........Management
Date of Institution : 21.12.2012
Date of reserving for award : 05.02.2015
Date of award : 25.02.2015
AWARD :
1.TERMS OF REFERENCE Vide Order No. F3(448)12/Ref./WD/LAB/1696 dated 19/11/12 Deputy Labour Commissioner (West District), Labour Department, Government of N.C.T. Of Delhi referred following industrial dispute between workman Smt. Manju w/o. Sh. Akhilesh Chand and Sh. Sandeep s/o. Sh. Akhilesh Chand Both R/o. H.No A401, Gali No5, Sharda Vats Enclave, Prem Nagar, New Delhi C/o. General Mazdoor Union (Regd.) T43, Karampura, Near Haryana Dharamshala, New Page 1 of 13 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/25.02.2015 Smt. Manju & Anr. Vs. M/s. Sunil Upper ID No. 444/12 Delhi110015 and management M/s. Sunil Upper, B7 & 8, Rajdhani Park, Nangloi, New Delhi41 u/s. 10(1) (c) and 12(5) of the Industrial Disputes Act, 1947 vide Govt. of NCT of Delhi, Labour Department Notification No. F. 1/31/616/Estt/2008/7458 dated 03.03.2009 for adjudication by this Court.
''Whether the services of Smt. Manju W/o Sh. Akhilesh Chand and Sh. Sandeep S/o. Sh. Akhilesh Chand have been terminated illegally and/or unjustifiably by the management; and if so, to what relief are they entitled and what directions are necessary in this respect?"
2. CASE OF THE WORKMEN AS PLEADED IN THE STATEMENT OF CLAIM.
i) Workmen were working with the management on the post of 'Machine Man' and 'Helper' at the last monthly salary of Rs. 8500/ per month and Rs. 7000/ per month since April, 2010 respectively. The management did not issue any appointment letter to the workmen.
ii) During the course of employment, workmen did not give any chance of complaint to the management, so their service record was neat, clean and unblemished.
iii) Earlier the management was running his concern at B7, Rajdhani Park, Nangloi, New Delhi but the management has shifted his concern at B8, Rajdhani Park, Nangloi, New Delhi41.
iv) Management used to take work from the workmen for 12 hours per day but the management did not pay any overtime wages to them. The workman also used to demand orally from the management to provide the appointment letter, ESI, pay slip, PF, attendance card, minimum wages, TA, DA, overtime wages, leave encashment, overtime wages since June to Dec. 2011 but the management did not provide the legal facilities to them.
v) The management started to getrid of the workmen but failed and on Page 2 of 13 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/25.02.2015 Smt. Manju & Anr. Vs. M/s. Sunil Upper ID No. 444/12 11.06.2012, management illegally terminated the workmen from their services, without any rhyme or reason, without paying the earned wages for the month of June 2012, without conducting any domestic enquiry and without giving any prior notice to the workmen.
vi) The management had taken the signature of the workmen on various blank papers and vouchers at the time of joining the service as well as during the service period but the workmen had put the signature on the same as they were very badly in need of job/employment as well as in good faith of management. All the documents are in possession of management and there is each and every apprehension of misuse of these documents by the management at any stage against the workmen.
vii) The workmen had sent the demand notice to the management through union through Regd.AD on 24.07.2012 but the management neither sent any reply nor reinstate the workman on the same post.
viii) The junior worker are still working with the management but the management had illegally terminated the workmen from their service, so it is clear that the management had violated the provision of section 25 F and G of the Industrial Disputes Act, 1947.
ix) The workmen had filed a complaint before the Assist. Labour Commissioner, Karampura, New Delhi and on this complaint the Labour Inspector had visited the establishment of management alongwith workmen and Labour Inspector met the management and the Labour Inspector had given advise to management to take the workman back on duty on the same post and to pay the earned wages for the month of June, 2012 but management neither reinstated the workmen nor paid the earned wages to them nor produced any record of employees Page 3 of 13 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/25.02.2015 Smt. Manju & Anr. Vs. M/s. Sunil Upper ID No. 444/12 before the Labour Inspector.
x) Workmen had filed the statement of claim before the Assist. Labour Commissioner, Karampura, Delhi, but no proper settlement could be arrived between the parties. Hence this reference.
xi) After illegal termination workmen regularly visited the establishment of management and workmen requested the management to take them back on duty on the same post but the management did not allow the workman to join duty on the same post.
xii) Workmen searched for job at many places but they did not find any work, so they are unemployed since the date of illegal termination and they want to join duty with the management on the same post with full back wages.
With these averments, workmen prayed for an award for reinstatement in service with full back wages and with all attendant consequential benefits in favour of the workmen and against the management. Also workman prayed for an order of earned wages for the month of June 2012 in their favour.
3. SERVICE OF MANAGEMENT AND MANAGEMENT BEING PROCEEDED EXPARTE Vide order dated 20.02.2013 notice of claim was issued to management for 26.03.2013 on which date ld. predecessor of this court passed the following order: ''26.03.2013 Present: Sh. Ajit Singh, AR for the workman.
Notice issued to the management received back unserved with the report that the management has left the given address. AR for the workman stated that the management is still working at the given address. Submissions heard.
Management be served afresh for the next date of hearing. Notice be given dasti also.
To come up on 02.05.2013 for service on the management......'' Page 4 of 13 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/25.02.2015 Smt. Manju & Anr. Vs. M/s. Sunil Upper ID No. 444/12 On 02.05.2013 following order was passed: ''02.05.2013 Present: Both the workmen in person with AR Sh. Ajit Singh. None for the management.
On the last date of hearing dasti summons were issued alongwith the ordinary process. The worker Smt. Manju was present at the time of service of the dasti summons and she identified the owner of the Management firm. But despite that the management did not accept the process. Their appearance is awaited till 12.30 p.m. but none has appeared on its behalf.
In these circumstances this is deemed to be a refusal on the part of the Management.
In these circumstances, this court using its powers U/S 11 of the Industrial Disputes Act directs that now the management be served with the process of the court in a manner as envisaged by Order V Rule 17 CPC i.e. by way of affixation of the process in case the management refuses to accept the service or does not cooperate or is not available at the time of service.
Notice be also served to the Management through registered post/AD also as per Rule 18 of the I.D.Rules.
To come up on 09.07.2013 for service of the management as aforesaid........'' On 09.07.2013, this court passed following order:
''09.07.2013 Present: Workman no. 1 Smt. Manju in person.
Management has been served through affixation in view of the last order. However, the registered AD envelope has been received back with the report which is not legible. Orders dated 02.05.2013 is also perused. In these facts and circumstances the Management is taken to have been served but absent. This case has been called twice and Management was awaited sufficiently.
Put up on 08.08.2013 for appearance on behalf of the management as advocates are stated to be on strike today.'' Page 5 of 13 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/25.02.2015 Smt. Manju & Anr. Vs. M/s. Sunil Upper ID No. 444/12 On 08.08.2013 undersigned was on leave before lunch and case was adjourned to 11.09.2013 on which date this court passed following order: ''11.09.2013 Present: Workman no. 1 with Sh. Ajit Singh, Advocate. None for the management.
Be awaited.
(ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI 11.09.2013 11.09.2013 (after lunch) Present: Workman no. 1 in person.
None for the management despite repeated calls and awaiting till after lunch.
No further wait or calls are justified. Management is proceeded against exparte.
Put up on 25.10.2013 for exparte evidence of the workman.'' (ANAND SWAROOPAGGARWAL) POLC - XI / KKD / DELHI / 11.09.2013''
4. EXPARTE EVIDENCE AND APPLICATION (S) OF WORKMAN SEEKING PRODUCTION OF DOCUMENTS FROM THE MANAGEMENT In the exparte evidence, workmen examined themselves as WW1Smt. Manju (evidence affidavit Ex. WW1/A) and WW2 Mr. Sandeep (evidence affidavit Ex. WW2/A). Workmen also examined WW3 Mr. Joginder Singh, ExLabour Inspector. Workmen relied upon documents namely Ex. WW1/1 Complaint dated 11.06.2012 made to Asst. Labour Commissioner; Ex. WW1/2 Report of the Labour Inspector; Ex. WW1/3 Demand Notice dated 24.07.2012; Ex. WW1/4 Postal Receipt dated 26.07.2012; Ex. WW1/5 Statement of Claim filed before Asst. Labour Commissioner; Ex. WW2/1; Complaint dated 28.05.2012 made to SHO PS Nangloi; Ex. WW2/2 Complaint dated 31.05.2012 made to Asst. Labour Commissioner; Ex. WW2/3 (colly. 3 pages) Medical Papers of workman Page 6 of 13 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/25.02.2015 Smt. Manju & Anr. Vs. M/s. Sunil Upper ID No. 444/12 Sandeep ; Ex. WW2/4 (Colly. 2 pages) Disability Certificate.
On 25.10.2013 two applications (i) for summoning documents from the management and (ii) for summoning witness (Mr. Joginder Singh C/o. Deputy Labour Commissioner, (NorthWest District) were moved. Notice of these applications were issued to management. Mr. Joginder Singh was examined on 29.01.2014 as WW3 Mr. Joginder Singh, Ex. Labour Inspector. On 29.01.2014, ld. counsel for the workman closed WE by making a statement to that effect. As regards, notice to the management of the application of the workman seeking production of documents from the management, court made following orders on 29.01.2014, 25.02.2014:
''29.01.2014 Present: Both workmen with Mr. Ajit singh Adv. Management is exparte.
Workman Sandeep examined himself as WW2. Discharged. Mr. Joginder Singh, Ex. Labour Inspector examined himself as WW3. Discharged. Ld. counsel for workman closed exparte WE.
Notice issued to management on the application of the workman for summoning the record from the management received back with the report that there is no firm with the name of M/s. Sunil Upper at the given address. Ld. counsel for workman submits that management is intentionally avoiding the process of the Court and management is very much working at the given address.
Let fresh notice of the application be issued to the management to be served through affixation with a further direction to management to produce the record on the next date of hearing without fail on 25.02.2014.'' ''25.02.2014 Present: Both the workmen with Mr. Ajit Singh Advocate. Management is exparte.
Management stands served through affixation on the application of the workman for production of documents from Page 7 of 13 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/25.02.2015 Smt. Manju & Anr. Vs. M/s. Sunil Upper ID No. 444/12 the management. None has appeared on behalf of the management despite call of the matter twice. Ld. counsel for the workmen submits that no other evidence is to be led by the workmen. It is submitted that despite service with the notice of the application for production of documents management has not cared to appear before the court and to produce documents. This fact shall be considered by the court at the time of passing award. Put up on 24.03.2014 for consideration.'' On 06.05.2014, an application was moved by workman seeking production of (a) Attendance, wages, Leave, Day, gate entry register since April 2010 to June 2012, (b) Application and Appointment letter of workman/employees since April 2010 to June 2012 and (c) ESI, PF record of employees of management since April 2010 to June 2012 from the management. Notice of this application was issued to management for 02.06.2014. On this application, court passed following orders:
on 02.06.2014, 14.07.2014, 20.08.2014:
''02.06.2014 Present: Workman Manju with Sh. Ajit Singh Adv. Management is ex parte.
Notice to management on an application for production of documents form the management moved by the workman not received back. Ld. counsel for the workman submits that management is very much working at the given address; however, the management has been proceeded exparte in proceedings before the Authority under the Employees Compensation Act, Karampura, New Delhi. Let fresh notice be issued to the management for the said application on RC/dasti as well as ordinarily. Service may be effected through affixation as per rules. Put up on 14.07.2014.'' ''14.07.2014 Present: Workman Manju alongwith Sh. Ajit Singh Adv. Management is proceeded exparte.
Notice to management received back with the report that management was a tenant at the given address and it has left the given address about two years ago. However, management Page 8 of 13 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/25.02.2015 Smt. Manju & Anr. Vs. M/s. Sunil Upper ID No. 444/12 stands served through affixation but none appeared. RC cover not received back. Dasti steps not taken by the workman. Workman is warned to be careful in future. Let last order be complied with for 20.08.2014.'' ''20.08.2014 Present: Workman with Mr. Ajit Singh, adv.
Management is exparte.
Dasti notice to management received back with the report that at B7 one lady met who stated that at the address of B8 there was tenant with the name of M/s. Sunil Upper who has left the tenanted premises. Also, it is reported that premises of B8 was found locked. Thereafter, summons were served through affixation as per order of Court. Workman Ms. Manju submitted that the lady who had met was wife of Mr. Sunil. Management stands served through affixation through ordinary process also. Registered AD envelope received back with the report of refusal. Put up for arguments on workman's application for production of documents from management on 22.09.2014.'' Arguments were heard on this application on 02.12.2014 and vide detailed order dated 15.01.2015, this application of workman was dismissed.
5. ARGUMENTS I have heard Mr. Ajit Singh Adv. for the workmen. Management is already exparte. Material available on judicial file perused.
6. FINDINGS OF COURT Workmen herein namely Smt. Manju and Mr. Sandeep have pleaded that they were working with management as ''Machine Man'' and 'Helper' since April, 2010 with their last drawn wages, respectively, as Rs. 8500/ per month and Rs.7000/ per month. Workman further pleaded that management illegally/unjustifiably terminated their service on 11.06.2012 on account of workmen orally demanding legal facilities from management in violation of Page 9 of 13 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/25.02.2015 Smt. Manju & Anr. Vs. M/s. Sunil Upper ID No. 444/12 provisions of section 25 F and 25 G of the Industrial Disputes Act, 1947. In this case, management has been proceeded exparte. It is a settled preposition of law that even if management is exparte workmen are supposed to establish/prove on judicial file their case as pleaded by them in the statement of claim by leading cogent and convincing/reliable evidence. The case as pleaded by workmen cannot be blindly believed by Court merely because management herein is exparte and depositions of workmen have gone unchallenged/uncontroverted. As per workmen Smt. Manju and Mr. Sandeep, management terminated their services on 11.06.2012. WW1 Smt. Manju is relying upon complaint dated 11.06.2012 Ex.
WW1/1. What is pertinent to note is that (i) complaint Ex. WW1/1 is not mentioned in the statement of claim and, thus, can be said to be beyond pleadings;
(ii) as per workmen their services were terminated by management on 11.06.2012 but Ex. WW1/1 is silent about alleged termination of services of workman Mr. Sandeep by the management (iii) as pleaded in statement of claim workmen were working with management since April, 2010 but Ex. WW1/1 mentions that Smt. Manju was working with management for one year. Ex. WW1/1 is, therefore, not consistent with the averments made in the statement of claim and (iv) as per Ex. WW1/1 salary of Smt. Manju was Rs. 3900/ per month but in the statement of claim it has been pleaded that last drawn wages of Smt. Manju were Rs. 8500/ per month. Also there is no proof of complaint Ex. WW1/1 having been received in /dispatched to the office of Assistant Labour Commissioner. What action was taken by Assistant Labour Commissioner pursuant to alleged complaint Ex. WW1/1 has also not been brought on judicial file by the workmen. Ex. WW1/2 Report of the Labour Inspector is also beyond the averments made in the statement of claim. As per Ex. WW1/2, Labour Inspector WW3 Mr. Joginder Singh visited Page 10 of 13 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/25.02.2015 Smt. Manju & Anr. Vs. M/s. Sunil Upper ID No. 444/12 the management on 06.06.2012. There are no pleadings in the statement of claim to the effect that Labour Inspector at any point of time during the tenure of employment of workmen with the management visited the management alongwith workmen. Averments made in para. 9 of the statement of claim refer to visit of Labour Inspector after the alleged termination of services of workmen by the management on 11.06.2012. No report of Labour Inspector regarding his visit after 11.06.2012 to management alongwith workmen has been proved/produced on judicial file. Complaint Ex. WW2/1 is also beyond the averments made in the statement of claim. Notably Ex. WW1/1 dated 28.05.2012 mentions that Mr. Sandeep was working with management since last one year as ''Helper''. This averment made in Ex. WW2/1 is not consistent with the averments made in statement of claim. In fact in the statement of claim there are no averments corresponding to contents of complaint Ex. WW2/1 (dated 28.05.2012). Statement of claim is absolutely silent about any accident, as alleged, suffered by Mr. Sandeep. Similarly Ex. WW2/2 (complaint dated 31.05.2012) is beyond pleadings. Inconsistent with averments made in statement of claim, Ex. WW2/2, mentions that Mr. Sandeep Kumar was working as 'Helper' for one year with Rs. 2500/ as monthly salary. Report of Labour Inspector dated 12.07.2012 mentions that management got the treatment of Mr. Sandeep got done at AIIMS (there is overwriting in the report) but in complaint Ex. WW2/1 (dated 28.05.2012) and complaint Ex. WW2/2 (dated 31.05.2012) it is alleged that management did not get the treatment of Mr. Sandeep Kumar done. Above discussion suggest that as pleaded/deposed by workman quite possibly is not true. In view of above inconsistencies court cannot believe the case as pleaded/deposed by workman with blind eyes merely because management is exparte and case of workman has gone Page 11 of 13 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/25.02.2015 Smt. Manju & Anr. Vs. M/s. Sunil Upper ID No. 444/12 unrebutted. Evidence beyond pleadings cannot be read by court in favour of workman. Inherent inconsistencies as discussed above bring the version/case of workmen with the spheres of serious doubts and the same does not call for credence from judicial mind. No independent/reliable evidence has been led by workmen to prove the one of the ingredients of Section 25 F of the Industrial Disputes Act, 1947 (i.e. workmen were in continuous service of not less than one year under the management). No case for the violation of provisions of section 25G Industrial Disputes Act, 1947 is made out also for the reason that requisite depositions required to fulfill the ingredients of section 25 G of the Industrial Evidence Act, 1947 are not there in the evidence affidavits of workman. Simle deposition (s) in the evidence affidavits to the effect that management terminated the services of workman in violation of section 25 G of the Industrial Disputes Act, 1947 are not sufficient to prove violation of provisions of section 25 G of the Industrial Disputes Act, 1947.
At this juncture, it would be relevant to refer to following observations made by Hon'ble Supreme Court of India in case las reported as Ramjas Foundation & Anr. Vs. Union of India & Others. AIR 2011 SC (Civil) 147: '14. The principle that a person who does not come to the Court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every Court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have bearing on adjudication of the issue (s) arising in the case........''
7. Accordingly, workmen are held to have failed to establish/prove the case as Page 12 of 13 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/25.02.2015 Smt. Manju & Anr. Vs. M/s. Sunil Upper ID No. 444/12 pleaded by them in the statement of claim.
8. Parties to bear their own cost.
9. Reference is answered against the workmen.
10. A copy of the award be sent to the Office of the Deputy Labour Commissioner (District West) for further necessary action.
11. File be consigned to Record Room after completing due formalities. PRONOUNCED IN THE OPEN COURT ON 25.02.2015.
(ANAND SWAROOP AGGARWAL) POLC XI/KKD/Delhi Page 13 of 13 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/25.02.2015