Delhi District Court
Sh. Vijay Sharma vs The on 31 July, 2018
IN THE COURT OF SH. RAKESH KUMARI
PRESIDING OFFICER LABOUR COURTX
DWARKA COURTS, NEW DELHI.
Ref. No. : F24(1796)/06/Lab./603640
Dated : 17.12.2007
I.D no. 1881/16
Sh. Vijay Sharma
S/o Sh. Om Prakash Sharma
Represented by Hotel Mazdoor Union
167 Panchkuin Road, New Delhi1.
Also at: C/o 3, V.P. House,
Rafi Marg, New Delhi. ......... Workman.
VERSUS
The Management:
(1) M/s Jai Drinks (P) Ltd.,
52, Janpth, Connaught Place,
New Delhi1.
(2). M/s Tirupathi Drinks (P) Ltd.,
E32, Okhla Industrial Area,
Phase II, New Delhi - 20. ..... Managements.
Date of Institution of the case : 22.12.2007
Date on which Award is passed : 31.07.2018
:A W A R D:
The workman named above raised an industrial
dispute before the Labour Department against the
termination of his services by the management claiming that
his services have been terminated by the management
illegally and unjustifiably and the appropriate Government
I.D.No 1881/2016 Page 1 out of 25
on being satisfied with regard to existence of an industrial
dispute between the parties, referred the dispute to the
Court for adjudication under Section 10 (I) (c) and 12 (5) of
the Industrial Disputes Act vide order no.: Ref. No. : F
24(1796)/06/Lab./603640 dated: 17.12.2007 with the
following terms of reference:
"Whether Sh. Vijay Sharma S/o Sh. Om
Prakash Sharma is absent from duty
by not reporting duty at the place of
transfer at Jaipur or his services have
been terminated illegally and/or
unjustifiably by the management; and
if so, to what sum of money as
monetary relief along with other
consequential benefits in terms of
existing Laws/ Govt. Notification and
to what other relief is he entitled and
what directions are necessary in this
respect?"
Fresh reference was received in the matter on
22.12.2007 and thereafter, the notice was issued to the
workman. Statement of claim was filed by the workman, in
which it is stated by the workman that the workman was
appointed with the management no.2 M/s Tripathi Drinks
(P) Ltd, as a helper from March 2001 and his last drawn
monthly wages was Rs. 3300/ P.M. at the time of his illegal
I.D.No 1881/2016 Page 2 out of 25
termination on 27.12.2005. It is claimed that management
no.1 M/s Jai Drinks (P) Ltd. is the principal employer and
the management no.2 is the subsidiary company and
contractor of the management no.1. Both of them have
common management, code of conduct, service rules and
inter transferable seniority. However, the workman was
directly employed by M/s Tirupathi Drinks (P) Ltd. The
workman was working honestly and there was no complaint
against him. It is claimed that the workman was not issued
any appointment letter at the time of his initial appointment.
He was also not given wage slip, leave book, bonus,
overtime and other statutory benefits. When the
management raised these points the management was
annoyed and workman was intimidated and harassed.
Therefore, he joined the Hotel Mazdoor Union. This was not
the liking of the management and they were in the look out
to terminate the service of the workman. The union lodged
the complaint with the Assistant Labour Commissioner,
Provident Fund Office and ESI authority for the
implementation of laws pertaining to their departments
which further infuriated the management. The workman
reported for duty on 27.12.2005 as usual but he was
refused to take on duty. It was said that the workman was
transferred to Jaipur Unit of the company and he should go
and join there. Therefore he was terminated w.e.f.
27.12.2005 arbitrarily, malafidely and illegally when he was
refused to take on duty on that day. It is claimed that he did
not receive the purported transfer order dated 19.12.2005
I.D.No 1881/2016 Page 3 out of 25
till date as it was addressed wrongly. However, he received
the same after some time when it reached back roaming
here and there. Moreover, there is no service condition
given to the workman that his services are transferable to
outstation. It is claimed that in the transfer order the
Tirupathi Drinks (P) Ltd is opening a new unit at Jaipur. The
unit was not yet opened and could not have transferred at
all. No specific address was given and the whole stretch of
place was given his new place of posting. It is claimed that
the workman was transferred to an imaginary place at
Jaipur to terminate him illegally under the guise of transfer.
However, he went to Jaipur in his anxiety to join duty there
but there was no such office in the entire area and the place
is a jungle rarely inhabited. He made out a complaint in his
visit at Jaipur and tried to lodge a complaint with police. He
served notice dt. 08.04.2006 asking the management to
reinstate him in service with full back wages and other
consequential relief but the management refused to budge.
The workman therefore raised Industrial Dispute before the
Conciliation Officer for his reinstatement but no settlement
could be arrived there, hence, the present complaint. It is
claimed that the workman is unemployed since the date of
his illegal termination. Accordingly, he prayed for
reinstatement with full back wages and continuity of
services with all consequential benefits.
Notice of the claim was issued to the
management no.1. Management no.1 appeared and filed
I.D.No 1881/2016 Page 4 out of 25
written statement stating therein that the management no.1
is franchise of Pepsi Food Pvt. Ltd which is a Multinational
company. The management no.2 is another separate
company registered under the Companies Act, 1956 and
has a separate constitution and is a different independent
management and independently registered under Income
Tax, Sale Tax, PF, ESI etc and has no link with M/s Jai
Drinks Pvt Ltd. It is submitted that the workman was never
employed by management no.1 and there is no nexus
between the management no.1 and management no.2.
Accordingly, there is no relationship of master and servant
between the management no.1 and workman. The
workman has deliberately, maliciously and unnecessarily
dragged the management no.1 into this matter. It is
submitted that the workman was actually employed by
management no.2 and as such directed, administered and
controlled by management no.2. It is submitted that on
inquiry it came to know that the workman along with other
42 workmen were transferred by management no.2 and
ultimately all 41 workmen have settled the matter during the
course of conciliation proceedings except the present
workman. It is submitted that if in the case like the present
one, one company is held responsible for the act of the
other company and dragged into the present kind of
litigation, then the very purpose of the concerned legislation
will be defeated and the process of law shall be abused
more often. It is submitted that the statement of claim is
liable to be dismissed as against the answering
I.D.No 1881/2016 Page 5 out of 25
management in the light of the judgment/order in CM (m)
1510/2007 titled as Tirupati Drinks Pvt Ltd vs Workmen
Through General Mazdoor Trade Union and another
decided by Hon'ble High Court of Delhi dt. 16.07.2008
wherein it has specifically held that while deciding the issue
on similar lines as to "whether the two firms viz Tirupati
Drinks Pvt Ltd and Jai Drinks Pvt Ltd; are one and the
same" it was held that the issue does not arise and is not to
be adjudicated upon by the Industrial Tribunal since this
issue is neither referred nor can be adjudicated upon;
therefore this Court is to adjudicate the issues in the
present case, as per the schedule of the terms of reference
dated 17.12.2007, referred by the appropriate authority of
Govt. of NCT of Delhi through Labour Dept and no relief
can be granted in favour of the delinquent workman.
Notice of the claim was also issued to the
management no.2. Management no.2 appeared and filed
written statement stating therein that the management no.2
had never terminated the services of the workman as
otherwise alleged by him. It is submitted that the workman
had been transferred to Jaipur vide order dated 19.12.2005
on account of some serious exigencies of work. It is
submitted that the workman was transferred along with 42
other workmen. It is submitted that the transfer was in
perfect consonance with the terms, which the workmen had
willingly accepted vide its contract of employment. It is
submitted that after the transfer to Jaipur, the workman was
I.D.No 1881/2016 Page 6 out of 25
again called upon vide letter dt. 31.01.2006 for resumption
of duty at Jaipur but the same again proved to be exercise
in futility. It is submitted that while replying the demand
notice the management once again call upon the workman
for resumption of his duty at Jaipur but all in vain. However,
as a gesture of goodwill and in keeping with their
bonafidies, in case the workman is genuinely interested to
resume work at its establishment at Delhi from where his
services were transferred, he may approach the
management. The respondent management, however,
reserves its right to initiate appropriate disciplinary action against the workman. It is submitted that there is no relationship between answering management and respondent no.1 as alleged by petitioner workman. The answering management is an independent entity registered under the Company Act, 1956 and solely and exclusively responsible for its affairs. It is submitted that the workman had been duly issued the appointment letter, which he had accepted of his free will and volition and after reading and understanding its clauses, he had accepted the same. The workman enjoyed all the legal benefits to which he had valid and legal entitlement. It is submitted that the answering management. through the union had carried out full and final settlement of all the workmen barring only two workmen out of 43 workmen, who were not inclined to go to Jaipur and instead opted for an amicable full and final settlement. In the settlements entered into by the union with the other 41 workmen and Tirupati Drinks Pvt. Ltd. during I.D.No 1881/2016 Page 7 out of 25 the course of conciliation proceedings the union undertook to withdraw all the complaints/disputes and raising of disputes by the union on behalf of the workman, now is illegal. It is submitted that the order of transfer had directed the workman to join at Jaipur w.e.f 27.12.2005 and thus in every view he was expected to report at Jaipur office and not at Delhi and by any stretch of imagination the same cannot be construed as termination as maliciously suggested by the petitioner workman. The entire contents of the statement of claim is denied by the management. It is submitted that the workman is gainfully employed and is deliberately concealing this factum from the court.
The workman did not prefer to file rejoinder to the Written Statement of Management no.1 but he has filed the rejoinder to the written statement of the management no.2 in which the objection/claim taken by the said management, has been strongly controverted and denied and averments as raised in the statement of claim re asserted and reiterated.
From the pleadings of the parties following issues were framed in the present matter on 23.07.2008:
(i) Whether this court has no jurisdiction to try the present claim?
(ii) As per terms of reference.
No other issues arose or pressed for and matter I.D.No 1881/2016 Page 8 out of 25 was listed for WE.
In support of his claim, workman examined himself as WW1. He relied upon documents Exts. WW1/1 to WW1/9 on record.
Witness was cross examined by the management no.2 wherein it is admitted that he was appointed in management no.2 w.e.f. 01.04.2001, however, he was not given any appointment letter. He conceded that during his employment with management no.2 he was enjoying the legal facilities like ESI and PF. He denied that his services were not terminated. He further denied that he was transferred to Jaipur vide transfer letter dated 19.12.2005 and his services were transferred along with other 42 workmen on account of serious exigency of work. He further denied that he was ever sent the letter dated 31.01.2006 for resumption of his duty at Jaipur. He admitted that he had lodged a complaint in this regard with the conciliation department. He denied that the management in its reply to the notice of the conciliation officer had again repeated the offer vide which he had called upon to resume his duty at Jaipur. He denied that on account of temporary exigency of work the management had set up a temporary arrangement and after the exigency of work over the management is not in a possession of that set up. He voluntarily stated that he had personally gone but could not find any set up of the management. He had not gone along any labour inspector of that area. He denied the suggestion I.D.No 1881/2016 Page 9 out of 25 that he had never gone in person to the transferred place of work. He denied that there was a proper set up at the time his services were transferred to Jaipur. He denied the claim of management that he was asked to report Mr. Anand Kumar who was deputed at the transferred place i.e. at Jaipur and his letter dated 23.07.2008 which is on record does not hold any relevancy since the management is no longer holding the said unit/set up. He denied the suggestion that the bus ticket which is on record is of no consequence. He denied the claim of Management that his services were never terminated or rather he illegally absented himself without any authorized leave from the management. He stated that he is willing to join the management if his service is treated in continuity in his earlier service and he was paid his due back wages. He stated that until or unless his back wages is given to him and an assurance is given by the management that his services is treated in continuity, he was not willing to join the duties at Okhla Unit. He was not agreed that the continuity of services or back wages aspects can be decided separately by the court. He denied that the relationship between respondent no.1 and respondent no.2 is on principal to principal basis. He denied that respondent no.1 has no interference in the working of respondent no.2 which is an independent entity for all the purposes. He denied that his allegations of intimidation and harassment are illegal and unfounded. He also denied that his allegations of incurring the displeasure of the management I.D.No 1881/2016 Page 10 out of 25 for joining the union is illegal and unfounded. He had not made any complaint in writing in the labour department to substantiate his allegations of harassment, intimidation, incurring the displeasure of management for joining union etc. He denied that he had never made any complaint in the labour department. He conceded that 41 workmen whose services had been transferred to Jaipur have already taken their full and final settlement from the management. He further conceded that these workmen had taken their full and final through one Sh. Sita Ram Mishra who is the office bearer of the union of at time. He denied that his present claim is highly frivolous in nature. He claimed that he had the knowledge of the fact that in the case of general demand they had moved one application before the court for adducing evidence to prove that the respondent no.1 and 2 are one entity, however, he was not aware that the said application was rejected/ dismissed by the Hon'ble Delhi High Court. He denied that the management has the right to transfer his services anywhere in India as per the terms of the appointment letter. He denied the claim of respondent no.2 that the documents which have been filed by him pertaining to his employment with respondent no.1 are not relevant as all these documents pertain to the period before he had joined in the present employment of management no. 2. He denied that respondent no.1 and 2 have their separate offices with no interference with each other. He claimed that he had not received any money order from the management. Nor the document Mark B I.D.No 1881/2016 Page 11 out of 25 bear his signature or the signature of any other member of his family. He had not received money order towards his balance wages and the document Mark C does not bear his signature or the signature of any other member of his family. He stated that he had tried at number of places for seeking employment but he could not tell the names as he did not remember. He denied that he deliberately hiding the factum of his gainful employment from the Court for seeking undue advantage. His household expenses were borne by his parents. He was unmarried.
In his cross examination by management no.1 he conceded that he did not know the contents of affidavit filed for evidence. He denied that he was appointed by the management no.2. He admitted that he was getting salary and other facilities from management no.2. He voluntarily stated that the salary and other facilities had been given to him after Jai Drinks Pvt. Ltd reimburse the same to the management no.2. He denied that he did not work with Jai Drinks Pvt. Ltd. He claimed that he had the documentary proof to show that he was in the employment of M/s Jai Drinks Pvt Ltd., however, he conceded that after checking the court file, he found no documentary proof, which show his employment with M/s Jai Drinks Pvt.Ltd. He admitted that management no.2 is the contractor of management no.1. He denied that he was appointed by management no.2. He voluntarily stated that he was appointed by management no.1 and subsequently transferred to management no.2. He admitted that he was transferred by I.D.No 1881/2016 Page 12 out of 25 management no.2 to Jaipur and not by Jai Drinks Pvt Ltd. He denied that documents filed by him of his other colleagues have no relevancy with his case. He denied that Khurshid Alam was previously working with Jai Drinks Pvt Ltd and after resigning and getting his full and final settlement he joined Tirupati Drinks Pvt Ltd. He voluntarily stated that he was still working with M/s Jai Drinks Pvt Ltd. and he could show the documentary proof to the effect that Khurshid Alam is still working with M/s Jai Drinks Pvt Ltd.
Sh. Ashwani Kumar and Sh. S. K. Gupta are the directors of M/s Tirupati Drinks Pvt. Ltd. but he could not confirm as to who is the director of M/s Jai Drinks Pvt Ltd. However, admittedly Sh. Ashwani Kumar and Sh. S.K. Gupta are not the directors of M/s Jai Drinks Pvt Ltd. He denied that he had no relation with M/s Jai Drinks Pvt Ltd and he was in the employment of M/s Tirupati Drinks Pvt Ltd. for all purposes. At present, he was unemployed. He tried his level best but could not get any employment. At present he was earning by doing some work on daily wages which he got approximately10 days in a month. He had no proof to show that his co worker Sh. Khursid Alam was still working with the management no.1. He voluntarily said that the said Sh. Khurshid Alam has taken his full and final settlement from management. Management no.1 and 2 are two different companies and he had no claim against management no.1 i.e. M//s Jai Drinks Pvt Ltd.
Thereafter, WE was closed and matter was fixed I.D.No 1881/2016 Page 13 out of 25 for statement and cross examination of MW. In support of his claim, management no.2 examined Sh. Ashwani Kumar as MW1. He relied upon documents Exts.MW1/1 to MW1/5 on record.
Witness was cross examined by the workman and he deposed that management M/s Tirupati Drinks Pvt. Ltd. was distributor of M/s Jai Drinks Pvt. Ltd. He denied that both the managements are one and the same. Salary of the employees of the management M/s Tirupati Drinks Pvt. Ltd. is increased at the time of notification by the Government in respect of the minimum wages payable to them. The management was paying HRA and commission to the employees apart from minimum wages. He denied that appointment letter had not been issued to the workman. He denied that the appointment letter Ex.MW1/5 does not bear the signature of the workman or that the same is a false and fabricated document. He could not confirm as to whether the workman had asked for increase in his salary or not. He denied that the management had terminated the services of the workman on account of any ill will because of alleged demand by the workman for increase in his salary and incentive. He admitted that the management had transferred the services of 42 employees including the workman. He admitted that the workman was employed on post of helper with the management and his work was to carry the cases of the soft drinks from vehicle to the shops and viceversa. He denied that it is not a specialized duty since it required expert handling by the I.D.No 1881/2016 Page 14 out of 25 helper so that the cases do not fall down and the bottles made of glass broken. No training has been given to the workman in this regard but his experience is required. He denied that the work of helper can be performed by any common person. The exigency of service for transferring the services of the workman to the place as mentioned in the transfer letter in respect of the workman Ex.MW1/1 was that business opportunity had arisen to the management at the said place. The management was not having trained helper at the place of transfer viz. Jaipur. The transfer of the workman was effected under the terms of his employment with the management vide appointment letter Ex.MW1/5 in his respect. He denied the suggestion that the transfer of the workman on the post of helper could not have been effected by the management under the appointment letter. The workman was being paid as per the minimum wages as applicable to them. He could not say whether the rates of minimum wages are less at Jaipur than Delhi. He could not say whether the salary of Rs. 3,350/ per month to the workman was sufficient for his livelihood at Jaipur and Delhi or not. He denied that the transfer of the workman from Delhi to Jaipur was malafide. He denied that traveling allowance had not been given to the workman pursuant to the transfer order. He denied that the complete address of the place of transfer had not been deliberately mentioned in the transfer order given to the workman. He did not remember the exact address of place of transfer today. He denied that he was not able to tell the I.D.No 1881/2016 Page 15 out of 25 exact address of place of address since there was no such address. He voluntarily stated that the address of the place of transfer of the workman is mentioned in the transfer order. The management M/s Jai Drinks Pvt. Ltd. of which they were the distributor was functioning at the place of transfer. He could not say as to how many employees had joined at the place of transfer consequent to their transfer by the management. He admitted that except for two employees all the other employee who had been transferred have settled their dues with the management. He could not confirm as to when the settlement between the said employees and the management was taken place. He denied that the management is in the habit of changing its name and dispensing with the services of its employees. The management M/s Tirupati Drinks Pvt. Ltd.is not functioning since December, 2009. There is no staff with the management as on todate. There is not even a helper employed with the management as on to date. He denied that he had filed a false affidavit by way of evidence or that he was deposing falsely being the Director of the management.
The management no.1 has also examined one witness namely Sh. Ranjan George as MW2, who in his examinationinchief tendered by way of affidavit Ex.MW2/A has stated that the management no.1 is a separate company registered under the companies act and has a separate constitution and is a different independent management than the management no.2 and it is I.D.No 1881/2016 Page 16 out of 25 independently registered under Income Tax,. Sales Tax, PF & ESI and has no link with management no.2 and the working between two separate establishment was solely on the basis of principle to principle. The company has separate legal entity. The copies of Memorandum and Articles of Association of both the companies are Ex.MW2/1 & Ex.MW2/2 respectively. The workman was never employed by management no.1 and as such there is no relationship of master and servant between management no.1 and management no.2. The claimant at the behest of Hotel's Worker Union, maliciously and unnecessarily dragged the management no.1 into this matter. In fact he was actually employed with the management no.2.
During cross examination he stated that the management was having its depot/office at E32 Okhla Industrial Area, Delhi till 2009 and the management no.2 i.e. M/s Tirupati Drinks Pvt, Ltd. was also having its depot at the said premises. He denied that the entrance of both the managements at the said premises was the same or that the management was the main distributor of PEPSI Cola. He denied that M/s Jai Drinks Pvt. Ltd. is the principal employer of M/s Tirupati Drinks Pvt. Ltd. or that M/s Tirupati Drinks Pvt. Ltd was a contractor of M/s Jai Drinks Pvt. Ltd.
Thereafter, M.E. was closed and matter was fixed for final arguments.
I have perused the entire record. I have heard the submission of the AR of the workman and the I.D.No 1881/2016 Page 17 out of 25 management. My issue wise findings are as under: :ISSUE No.1: "Whether this court has no jurisdiction to try the present claim?"
Vide this issue, the court has to adjudicate upon as to whether this Court has jurisdiction to try the present claim or not.
Perusal of the respective Written Statements filed on behalf of Management no.1 and management no.2 reveal that none of the managements have taken any objections with regard to the jurisdiction of the Court. Even rejoinder filed by the workman is silent about the same. Further no submissions were advanced by any of the ARs of the parties regarding the jurisdiction of this Court. In such circumstances, it can not be said that this Court has no jurisdiction to try and entertain the present claim. Issue stands decided accordingly.
:ISSUE No.2: "As per terms of reference."
In the instant matter, following reference has been received: "Whether Sh. Vijay Sharma S/o Sh.
Om Prakash Sharma is absent from duty by not reporting duty at the place of transfer at Jaipur or his services have been terminated illegally and/or I.D.No 1881/2016 Page 18 out of 25 unjustifiably by the management; and if so, to what sum of money as monetary relief along with other consequential benefits in terms of existing Laws/ Govt. Notification and to what other relief is he entitled and what directions are necessary in this respect?"
In its Written Statement, the management no.1 has completely denied the employer and employee relationship between the claimant and management no.1 and admittedly, the workman was appointed with the management no.2 M/s Tripathi Drinks (P) Ltd, as a helper from March 2001 and his last drawn monthly wages was Rs. 3300/ P.M. In such circumstances, no liability can be fastened upon the management no.1.
In its written Statement, the Management no.2 has claimed that the workman had been transferred to Jaipur vide order dated 19.12.2005 on account of some serious exigencies of work, which was in perfect consonance with the terms, which the workmen had willingly accepted vide its contract of employment. Further after the transfer to Jaipur, the workman was again called upon vide letter dt. 31.01.2006 for resumption of duty at Jaipur but the same again proved to be exercise in futility. Further while replying the demand notice the management once again call upon the workman for resumption of his duty at Jaipur but all in vain. The workman had been duly issued the appointment letter, which he had accepted of his I.D.No 1881/2016 Page 19 out of 25 free will and volition and after reading and understanding its clauses, he had accepted the same. The workman enjoyed all the legal benefits to which he had valid and legal entitlement. Further the management through the union had carried out full and final settlement of all the workmen barring only two workmen out of 43 workmen, who were not inclined to go to Jaipur and instead opted for an amicable full and final settlement. The order of transfer had directed the workman to join at Jaipur w.e.f 27.12.2005 and thus in every view he was expected to report at Jaipur office and not at Delhi and by any stretch of imagination the same cannot be construed as termination as maliciously suggested by the petitioner workman.
On the contrary, the workman in his Statement of claim has categorically stated that workman was appointed with the management no.2 M/s Tripathi Drinks (P) Ltd, as a helper from March 2001 and his last drawn monthly wages was Rs. 3300/ P.M. at the time of his illegal termination on 27.12.2005. Further management no.1 M/s Jai Drinks (P) Ltd. is the principal employer and the management no.2 is the subsidiary company and contractor of the management no.1 and both of them have common management, code of conduct, service rules and inter transferable seniority, however, the workman was directly employed by M/s Tirupathi Drinks (P) Ltd. The workman was working honestly and there was no complaint against him. The workman was not issued any appointment letter at the time of his initial appointment and he was also not given I.D.No 1881/2016 Page 20 out of 25 wage slip, leave book, bonus, overtime and other statutory benefits. When the management raised these points the management was annoyed and workman was intimidated and harassed. Therefore, he joined the Hotel Mazdoor Union and this was not the liking of the management and they were in the look out to terminate the service of the workman. The union lodged the complaint with the Assistant Labour Commissioner, Provident Fund Office and ESI authority for the implementation of laws pertaining to their departments which further infuriated the management.
The workman reported for duty on 27.12.2005 as usual but he was refused to take on duty and it was said that the workman was transferred to Jaipur Unit of the company and he should go and join there. Therefore he was terminated w.e.f. 27.12.2005 arbitrarily, malafidely and illegally when he was refused to take on duty on that day. He did not receive the purported transfer order dated 19.12.2005 till date as it was addressed wrongly. However, he received the same after some time when it reached back roaming here and there. Moreover, there is no service condition given to the workman that his services are transferable to outstation. It is claimed that in the transfer order the Tirupathi Drinks (P) Ltd. is opening a new unit at Tonk Road, Near Gopalpura, Flyover Crossing, Jaipur but the unit was not yet opened and as such he could not have transferred at all. No specific address was given and the whole stretch of place was given his new place of posting. The workman was transferred to an imaginary place at I.D.No 1881/2016 Page 21 out of 25 Jaipur to terminate him illegally under the guise of transfer. However, he went to Jaipur in his anxiety to join duty there but there was no such office in the entire area and the place is a jungle rarely inhabited. He made out a complaint in his visit at Jaipur and tried to lodge a complaint with police. He served notice dt. 08.04.2006 asking the management to reinstate him in service with full back wages and other consequential relief but the management refused to budge. The workman therefore raised Industrial Dispute before the Conciliation Officer for his reinstatement but no settlement could be arrived there, hence, the present complaint.
According to the management, the workman was transferred to Jaipur in pursuant to one of the conditions of his Appointment Letter Ex.MW1/5, whereas the workman in his statement of claim as well as evidence tendered by way of affidavit Ex.WW1/A has categorically stated that he was not issued any appointment letter by the management. He even denied his signature on the Appointment Letter at point A. In the circumstances, when the workman has denied his signature on the Appointment Letter, onus is shifted upon the management to prove that the appointment letter was actually issued and received by the workman and also to prove that the signature of workman at point A on appointed Letter Ex.MW1/5 actually belongs to workman. But the management has failed to do so. No application for obtaining the specimen signature of workman or his hand writing for the relevant period has been moved on behalf of management to send them for the expert opinion to I.D.No 1881/2016 Page 22 out of 25 conclude that the signature on the appointment letter Ex.MW1/5 at point A belongs to workman only. In the absence of same, it can not be said that workman was actually issued any appointment letter and in such circumstances, it can not be said that workman was having knowledge about the clause of his transfer to any place in India, of appointment letter Ex.MW1/5.
In his statement of claim as well as evidence by way of affidavit Ex.WW1/A, the workman has claimed that the workman was transferred to an imaginary place at Jaipur to terminate him illegally under the guise of transfer. However, he went to Jaipur in his anxiety to join duty there but there was no such office in the entire area and the place is a jungle rarely inhabited. Hence, the deponent was transferred to a nonexisting office only to wreck vengeance and terminate the workman illegally.
On the contrary, the management no.2 has led no evidence on record in this regard. No document in respect of opening of new unit of management no.2 at Tonk Road, Near Gopalpura, Flyover Crossing, Jaipur, in the form of incorporation certification, Memorandum and Article of Association of Management No.2 at Jaipur etc. has been placed and proved on record by the management in order to falsify the claim of workman that was transferred to an imaginary place at Jaipur.
Admittedly, the workman was appointed with the management no.2 M/s Tripathi Drinks (P) Ltd, as a helper from March 2001 and his last drawn monthly wages was I.D.No 1881/2016 Page 23 out of 25 Rs. 3300/ per month and no show cause notice or charge sheet was ever issued by management no.2 in respect of the workman not appearing for his duty. It is also not disputed that no enquiry was conducted against the workman. The arbitrariness is an antithesis to the rule of law, equity and fare play and the principle of natural justice is to be followed. Since no notice, notice pay, compensation or any other consequential benefits were given to the workman prior to termination of his services, the termination of the services of the workman by the management no.2 on 27.12.2005 is illegal and unjustified. Hence issue is liable to be decided against the management no.2 and same stands decided accordingly.
:( RELIEF): In his statement of claim the workman has prayed for his reinstatement with full back wages alongwith consequential benefits etc. in favour of workman and against the management no.2 but in the considered opinion of the court this is not a fit case for the reinstatement, as a considerable period of time has been elapsed and the end of justice will be served if a lumpsum compensation is awarded to the workman instead of reinstatement, backwages, and other consequential benefits. Accordingly, in view of the above discussion and terms of reference, and keeping in view the tenure of service of the workman with the management and his last drawn salary a lumpsum compensation of Rs.1,35,000/ (Rupees One Lakh Thirty I.D.No 1881/2016 Page 24 out of 25 Five Thousand Only) is awarded to the workman instead of reinstatement and backwages and other consequential benefits. The management is directed to pay the said compensation amount of Rs.1,35,000/ (Rupees One Lakh Thirty Five Thousand Only) to the workman within three months from the date of publication of award. If the management failed to pay the said amount of Rs.1,35,000/ (Rupees One Lakh Thirty Five Thousand Only) to the workman within the stipulated period, the workman is at liberty to get recover the said compensation amount of Rs.1,35,000/ (Rupees One Lakh Thirty Five Thousand Only) from the management along with an interest @ 7% p.a. from the date of passing of award till the date of recovery of the amount of compensation. The award is passed accordingly and reference is answered accordingly. Requisite number of copies of this award be sent to the competent authority for necessary compliance. File be consigned to the Record Room.
Announced in the open Court on 31.07.2018 (RAKESH KUMARI) Presiding Officer Labour CourtX Dwarka Courts, Delhi.
Digitally signed by RAKESH RAKESH KUMAR
Date:
KUMAR 2018.08.02
15:38:28
+0530
I.D.No 1881/2016 Page 25 out of 25