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Delhi District Court

Between The vs The on 3 April, 2013

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    IN THE COURT OF SH.S.S.MALHOTRA, PRESIDING OFFICER, 
     LABOUR COURT NO. IX, KARKARDOOMA COURTS, DELHI

ID NO. 252/11
Unique Case I.D. No. 02402C0146642011

BETWEEN THE WORKMAN
Sh.Rajveer s/o Sh.Pritam Yadav
Represented by
Delhi General Mazdoor Front,
BK­1/33B, Janta Flat, Shalimar Bagh,
Delhi­88
AND THE MANAGEMENT OF
M/s Golyan Metal Pvt.Ltd.
A­104/13, Wazirpur Industrial Area,
Delhi­52

       Date of Institution                          :      09.05.2011
       Date on which award reserved                 :      30.03.2013
       Date of passing of award                     :      03.04.2013

                                     AWARD

1             Vide this order, I shall dispose off the reference no. F. 24/ID.

(666)/10/NWD/(56)/10/Lab./3771­75 dated 25.4.2011 as received from   the 

Dy. Labour Commissioner, North West District, Govt. of NCT of Delhi to 

the following effect:

       "Whether   services   of   Sh.Rajveer   s/o   Sh.Pritam   Yadav   have   been  

illegally and/or unjustifiably terminated by the management; and if yes, to  

what   relief   is   he   entitled   and   what   directions   are   necessary   in   this  

respect?".



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2      After   receiving   of   the   reference,   notice   was   sent   to   the 

claimant/workman with direction to file the statement of claim which he has 

filed   and   as   per   the   statement   of   claim   he   had   been   working   with   the 

management   since   2002   as   a   'helper'   and     his   last   drawn   salary   was 

Rs.  3600/­   per   month   and   he  was  working  with  full  dedication  and  had 

never   afforded   any   opportunity   of   complaint   to   the   management.   There 

were about 200 employees who had been working with the management in 

shifts and each shift was of 12 hours and every workman was compelled to 

work for 4 hours extra per day that too without paying overtime charges. 

The   management   M/s   Golyan   Metal   Pvt.   Ltd.   A­104/13,   Wazirpur 

Industrial   Area,   Delhi­52,   M/s   Anil   Metal   Industries   A­104/9,   Wazirpur 

Industrial  Area, Delhi­52 and M/s Vinayak Metal Industries  A­104/4 are 

being operated by Sh.Mahesh Leela, Roshan Lal and Sh.Vinod. They all are 

in the production line of same material and as per their own convenience & 

requirement, the managements   used to extract work from the concerned 

workman for their  establishments and the workman had never been issued 

any transfer letters and as such the workman was never informed that what 

is   his   proper   management   and   the   management   even   had   never   been 

maintaining   proper   service   records   of   their   employees   nor   any   legal 

facilities   like appointment   letter, attendance  card,  wage slip,  leave book, 

bonus   disbursement   record,   attendance   and   wage   register,   casual   leave, 

bonus, ESI and PF were being provided to the workman and even ESI card 

which   was   being   furnished   to   the   workman     subsequently   used   to   be 

changed,  as the working place of the workman used to be changed and on a 

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fresh   date   of   appointment   ,   fresh   ESI   Card   was   being     given.   The 

contribution   towards   PF  was  being  deducted  by  the  management  but  no 

such detail was being provided to the workman rather the management had 

been obtaining the signatures from their employees from time to time with 

sole   motive   to   utilize   the   blank   papers     as   per   their   convenience     and 

subsequently   when   the   workman   alongwith   other   employees   started 

demanding   legal   facilities   and   proper   implementation   of   the   service 

facilities   and   also   demanded   the   salary   as   per   minimum   wages   of   their 

designation,   the   management   started   threatening   the  workman   alongwith 

other employees  by stating that they would be implicated in  false cases and 

as such the workman alongwith other employees of the management joined 

the union namely General Mazdoor Front Union to fight for their  demands. 

It is further stated that  when the present workman who was deputed  with 

M/s   Vinayak   Metal   Industries   protested   for   all   such   demands,     the 

management got annoyed  and some gunda elements at the instance of the 

management attacked the workman and other co­employees on 26.8.2010 

with the intention to harm them with bodily injury  and even  the services of 

the workman  were also  terminated  on the same day by the management 

without   any   reason,   without   giving   any   notice   in   writing   or   any 

compensation. It is further submitted that neither any domestic inquiry was 

conducted   nor   they   were   chargesheeted   before   termination   and   as   such 

aggrieved from this fact, the workman issued a demand notice on 31.8.2010 

through  the Union but the management did not give any attention to the 

notice.   The   workman   thereafter   filed   a   complaint   before   the   Dy.Labour 

                                               Sh.Rajveer vs M/s Golyan Metal Pvt.Ltd.
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Commissioner through Union where the management appeared and stated 

that the management has already been closed down w.e.f 31.3.08 and all the 

three managements have been merged in M/s Golyan Metal Pvt.Ltd. which 

is   presently   running   by   the   management.   It   is   further   stated   that   after 

receiving   the   demand   notice/   summon  from   the   labour   department   ,  the 

management   called   some   employees   including   the   workman   by   issuing 

letters dt.27.8.2010, 30.8.2010, 31.8.2010 & 11.9.2010 and even disbursed 

earned wages to some of the workmen before the Labour Inspector but the 

workman was not paid the earned wages and the workman even approached 

the management after receiving said letters but the management threatened 

him and refused to take him back on duty and thereafter the conciliation 

proceedings were initiated by the workman which also failed and ultimately 

the matter was referred before this court for adjudication and the workman 

has filed the statement of claim with a prayer that award be passed in favour 

of   the   workman   and   against   the   management   thereby   holding   that   the 

services of the workman were illegally and unjustifiably terminated by the 

management and he is entitled to   reinstatement with full back wages and 

other  consequential reliefs. 

3      The   management   was   served   and   it   filed   its   written   statement   by 

taking   Preliminary   Objections  that  the  claimant  started  remaining  absent 

unauthorizedly from his duties w.e.f 26.8.2010  and thereafter letters were 

written by the management on 27.8.2010, 30.8.2010, 31.8.2010, 11.9.2010, 

30.9.2010, 12.10.2010 and 26.10.2010  but the claimant did not report for 

duty   and  thus   it  was  deemed  by  the  management  that  the  workman  had 

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abandoned  the services with the management of his own which fact was 

mentioned in the letter of the management dt.26.10.10 and it is stated that 

from all these facts it is clear that the workman has left the services of his 

own   by   abandoning   his   services   and,   therefore,   no   Industrial   dispute 

remains and the Labour Court has no jurisdiction  to adjudicate upon the 

claim filed by the workman and even otherwise the management has closed 

its unit w.e.f 21.2.2011 and the workman otherwise is not entitled for any 

relief after the date of closure. As far as merits are concerned,  relationship 

is not disputed. However, length of period is denied and it is denied that the 

claimant worked with the management since 2002  or his last drawn wages 

were     Rs.3600/­p.m and  it is stated that the factory of the management 

came into existence on 1.4.08 only and, therefore, question of the claimant 

concerned   being   employed   with   the   management   prior   to   that   does   not 

arise.   It   is   further   submitted   that   the   claimant   was   working   with   the 

management  w.e.f 1.2.09 only and his last drawn wages were Rs.5280/­p.m 

and he ultimately abandoned his services w.e.f 26.8.2010. It is denied that 

about 200 employees had been working for production in two shifts for the 

management and it is submitted that in all the three factories about 60­80 

employees were employed. The management never used to take overtime 

from its employees and whenever the overtime was being taken from the 

workman, the workman was used to be paid overtime but as far as present 

workman is concerned, he was never put to work for overtime and as such 

the question  of his being paid overtime charges does not arise. It is also 

submitted that M/s Anil Metal Industries, M/s Vinayak Metal Industries and 

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M/s Gohlyan Metal Industries were closed w.e.f 31.3.08 and the workers 

employed therein had received their full and final settlement of account and 

thereafter some of them have taken employment   with M/s Golyan Metal 

Pvt.Ltd i.e.the present management. It is further submitted that the claimant 

was earlier employed with M/s Vinayak Metal Industries from w.e.f 18.5.06 

to 31.3.08 and  he had taken his full and final settlement of account from the 

said firm. It is denied that the legal facilities were not being provided to the 

workman or that service record of the employees were not being maintained 

as   alleged.   It   is   also   denied  that  ESIC  benefits  were  being   given  to  the 

workers  after several  years  of their employment  or that  the management 

was deducting PF from the wages of the employees and was not providing 

the record  pertaining  to  the  said amount.  It  is further  submitted  that  the 

claimant   concerned   had   never   demanded   any   legal   benefits   from   the 

management as the management was providing all the benefits as applicable 

to   it   and   it   is   further   denied   that   the   workman   was   deputed   by   the 

management at M/s Vinayak Metal Industries, A­104/4, Wazirpur Industrial 

Area,   Delhi­52   or   that   the   claimant   concerned   with   other   co­workers 

opposed the illegal activities of the management or the management called 

some gunda elements inside the factory on 26.8.2010 or they threatened the 

claimant    with dire consequences  or that the management terminated the 

workman on the same day. It is further reiterated that the workman himself 

started  remaining  absent  with other workers  w.e.f 26.8.2010  and did not 

join despite writing various letters to the workman.   It is denied that the 

workman   alongwith   other   workmen   approached   the   management   after 

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receiving the letters of the management , but the management threatened 

him   and   refused   to   take   him   back   on   duty   and   it   is   reiterated   that   the 

management had even asked the workman to come alongwith the Labour 

Inspector and join the duty but the workman did not join the management. 

Facts of the preliminary objections are again reiterated and it is prayed that 

the claim of the workman be dismissed.

4 Workman has filed rejoinder thereby denying all the facts of the written statement and reiterating the facts of statement of claim as correct.. After completion of the pleadings, following issues were framed on 11.1.2012:­ 1 Whether the workman has abandoned the services from 26.8.2010 and has not joined the duties despite writing letters by the management? OPM 2 Whether there is no industrial dispute in between the workman and management? OPM 3 Whether the workman had not been working with the management on the alleged date of termination. If so, its effect? OPM 4 Whether the management has closed its manufacturing activities on 21.2.2011 permanently, if so, its effects? OPM 5 Whether the services of the workman have been terminated illegally and/or unjustifiably by the management? OPW 6 Whether the claimant is entitled to the relief claimed for? OPW 7 Relief 5 After framing up of the issues, the workman was directed to lead evidence. Workman has examined himself as WW­1 and closed his evidence. Thereafter an opportunity was given to the management to conclude its evidence and accordingly, the management has examined Sh.Rajveer vs M/s Golyan Metal Pvt.Ltd.

Sh.Vinod Aggarwal as M.W­1 and closed its evidence. 6 I have heard the arguments and perused the record. My issue­wise findings are as under:

ISSUE NO.4

7 Issue no.4 is being taken up first as the issue no.1 & 5 are the connected issues and would be disposed off simultaneously. The onus to prove the issue no.4 that it has closed its manufacturing activities w.e.f 21.2.2011, was upon the management. The management in the WS has submitted that the factories of the management situated at A­104/12, Wazirpur Industrial Area, Delhi­52, A­104/9, Wazirpur Industrial Area, Delhi­52 & A­104/4, Wazirpur Industrial Area, Delhi­52 are permanently closed w.e.f 21.2.2011 and the management has closed all his business activities. However, in para no.6 of the written statement on merits, the management had stated that factories M/s Anil Metal Industries, M/s Vinayak Metal Industries and M/s Gohlyan Metal Industries were closed w.e.f 31.3.08 and the workers employed therein had received full and final settlement of account. The workman in his statement of claim has stated that this fact was not in the knowledge of the workman earlier as it was never informed, and this fact came to the knowledge of the workman for the first time when the conciliation proceedings were initiated and the management has informed this fact to the Labour Inspector as well as to the workmen and prior to that all the factories were running and even now the management is running all these factories. M.W­1 Sh.Vinod Aggarwal has Sh.Rajveer vs M/s Golyan Metal Pvt.Ltd.

deposed in terms of his statement by way of affidavit and has relied upon the documents i.e.M.W 1/ 2 to Ex.MW 1/ 4 which are the photocopies of the letter dt.26.11.10 for surrender of registration certificate under Central Excise for three factors, Ex.M.W 1/5 is the photocopy of letter dt.4.3.2011 to the ESIC regarding the closure of the factories/business activities of the management, Ex.M.W 1/6 is the photocopy of letter dt.8.3.2011 sent to EPF department , Ex.M.W 1/7 to Ex.MW 1/9 are photocopies of letter dt. 4.3.2011 sent to Chief Inspector of Factories regarding the permanently closure of the factories of the management, Ex.M.W 1/10 to ExMW 1/ 12 are the photocopies of the return filed by the management under EPF Act for the year 2008, 2009 and 2010. He was cross examined by Ld.ARW and in cross examination, he denied that more than 200 employees were employed in the factory and he volunteered that there were around 60 employees in total and there used to be 8 hours shift working and no overtimes used to be taken. He denied the suggestion that the management has stated in the conciliation office that all the three firms have been closed and have been merged into Golyan Metal Pvt.Ltd. and also denied the suggestion that the management is still running these factories and he volunteered that all the factories have been closed and all the concerned department have been apprised of all these facts. The management to prove this issue has also cross examined WW­1 but WW­1 denied the suggestion that the management has permanently closed on 21.2.2011 and when asked as to why he is denying this fact and why he is saying that the management is running factories, he deposed that he has been saying so as he had been Sh.Rajveer vs M/s Golyan Metal Pvt.Ltd.

told by his co­workers who are working in nearby factories. He volunteered that he has not seen personally that the management is still running. 8 As far as closure of the management w.e.f 21.2.2011 is concerned, Ld.ARW could not impeach the testimony of M.W­1 nor he could impeach the documentary evidence with respect to giving information by the management to ESI, EPF department in connection of the factories and other concerned authorities regarding closure. Therefore, the issue no.4 is decided by holding that the management has been able to prove that M/s Golyan Metal Pvt.Ltd.has closed its functioning from 21.2.2011. ISSUE NO.1 & 5 9 Onus to prove the issue no.1 was upon the management and it had to prove that the workman had abandoned his services and onus to prove the issue no.5 was upon the workman and it had to prove that his services have been terminated illegally and unjustifiably by the management. Since both these issues are inter related as if the management would have been able to prove that the workman had abandoned the services then services of the workman would not be deemed to have been terminated and if the management has not been able to prove that there is willful abandonment on the part of the workman then the issue that the services of the workman have been terminated illegally would stand proved. However, the issue no.1 would be discussed first.

The contention of the management is that the workman started absenting unauthorizedly from 26.8.2010 and thereafter the management Sh.Rajveer vs M/s Golyan Metal Pvt.Ltd.

has written letters dt.27.8.10, 30.8.10, 31.8.10, 11.9.10, 30.9.10, 12.10.10 and 26.10.10 which were initially exhibited as WW1/MX1 to WW1/MX7 . the said letters have not been disputed by the workman as in para no.13 he admitted that after receiving such letters, the workman visited the management and even on that date the workman was not allowed to resume the duty and was not taken back on duty rather they were threatened. Therefore, much stress can not be given about writing or posting of these letters . The management was even not required to prove that these letters have been written by the management or not once the receiving of such letter is admitted by the workman.

The fact which has to be considered to prove this issue is as to whether after receiving such letters, the workman did not go to join the duty of the management or whether the workman went there & the management did not allow him to do the work. Ld.ARM has argued that after 4 letters, there is another letter dt. 30.9.10 & 12.10.10 by which the workman was told to join the management and even they may come with the Labour Inspector so that the matter can be settled once for all. Ld.ARM has argued that once the management has written the letters to the workman and the workman has not turned up to join the duty and the management even otherwise can not do more than this effort to ask the workman to come with the Labour Inspector and in such circumstances, he would be deemed to have abandoned the job & there was no necessity for conducting any inquiry against the workmen who have been willfully absenting from duty. He has argued that even the workman could not give exact details about his Sh.Rajveer vs M/s Golyan Metal Pvt.Ltd.

alleged termination on 26.8.2010 and, therefore, he has not been able to prove his termination and for that he has relied upon Diamond Toys Co.(P) Ltd.vs Toofani Ram & Anrs. wherein it was inter­alia held by the Hon'ble High Court of Delhi that once the basis on which a workman claimed that he was terminated stands knocked out, then a heavy onus shifts to the workman to show that his services were actually terminated by the management and to show the reasons for termination and it was further held that the termination is a positive act of the management and the management has to do this act for some reasons".

10 Ld.ARW has not been arguing the matter and for that reason the court has not been able to get any assistance from the Ld.ARW. Court otherwise has perused the record. Here is the management who is claiming that the workmen have abandoned their job and it has written 7 letters to the workman individually. The workman in the statement of claim has alleged that the management has terminated his services on 26.8.2010 on which date the management had called some outside gunda elements and on demanding PF slip, he was beaten and thrown out of the factory. Claim of the management is that nothing has happened on 26.8.2010 rather the workman had started absenting from his services w.e.f 26.8.2010. Court has observed this particular fact that if the workman remained absent only on 26.8.2010 as is being highlighted in the present matter then in all circumstances, the management was supposed to wait for the workman atleast for few days so that it may inquire from the workman as to why he Sh.Rajveer vs M/s Golyan Metal Pvt.Ltd.

did not come on 26.8.2010 and there was no necessity at all to serve the workman or to send him the notice on 27.8.2010 i.e.on the next day itself thereby asking him as to why he is running absent and he should join. The question of 'running absent' does not arise in one day rather the language even it would have been so, it would have been that the workman was absent on 26.8.2010 i.e.one day and not that he was 'running absent' as he would have been running absent for so many days . The language of the letter dt.26.8.2010 is otherwise not to the effect that the workman was running absent unauthorizedly rather the word' authorized absence' has been used. The management should have waited atleast for 4­5 days so as to inquire as to why the workman had not come on 26.8.2010. . On inquiry raised by the court, Ld.ARM has stated that letter was written on 27.8.10 itself as in the connected matter, the date of termination is 9.7.2010 & the management was facing such threats even in other cases and as such it was issued on very next day. Even if , the contention of the management is accepted then also the court is of the opinion that if no such incident as alleged would have happened on 26.8.2010 then there was no necessity with the management to write a letter dt.27.8.2010 which otherwise is admittedly received by the workman. Therefore, something definitely has happened on 26.8.2010 and if we turn to the evidence, the management has specifically asked the workman as to what happened on 26.8.10 and the workman has replied that his services were terminated on 26.8.10 as he demanded PF slip which was not given to him and nothing more than that happened on that Sh.Rajveer vs M/s Golyan Metal Pvt.Ltd.

day.

11 Now, coming to the facts again that after 26.8.2010 or after writing the letters 27.8.2010, 30.8.2010 & 11.9.2010 whether the workman went to join the duty or not. M.W­1 in para no.16 of the affidavit submitted that letters were sent to the workers and also to the Labour office with a request that workers may kindly be sent alongwith Labour Inspector for joining their duties. M.W­1 in cross examination denied the suggestion that the workman came for duty after receiving the letters or the management refused to take him back on duty and he also denied that even after the management asked the workman to report for duty before conciliation officer, the workman again reported the management and the management refused to take him back on duty. It is an admitted fact that the workmen are not working with the present management and there is rival contentions of both the parties. In these circumstances when there is rival contention of both the parties , court is of the opinion that judgment as relied upon Ld.ARM to the effect that when the ground of termination has been knocked out by the management then onus to prove the termination of the services of the workman and in such case the inquiry is not required to be held, is not relevant in the present facts and circumstances as the management has not been able to knock out the alleged ground of termination of the services of the workman. If the workman would not have asserted in the statement of claim that he had gone to the management after receiving the letters as sent by the management, contention of Ld.ARM Sh.Rajveer vs M/s Golyan Metal Pvt.Ltd.

would have been well found as it was held in judgment tiled as Diamond Toys Co.(P) Ltd.vs Toofani Ram & Anrs. (Supra) 12 But here the claim of the claimant from the very beginning is that they had gone to the management to join the duty after receiving the letters written by the management and also when an effort was made by the conciliation officer but they were not taken back on duty. As far as contention of the management that workers were asked to join the duty with Labour Inspector is concerned, court is of the opinion that if the workman has not come despite such letters then an equal effort could have been made by the management also to get the Labour Inspector deputed and settle the matter. The management has given the earned wages to some of the workers as is being reflected in the WS and it could also have taken such effort in this matter also. When there is a dispute that the workmen are not joining despite asking them, then it was incumbent duty of the management to hold inquiry against such an employee and court in arriving to this decision is taking support with the judgment titled as Express Newspapers Pvt.Ltd. vs

1.Michael Mark and anr.and 2.G.Sreedharan & ors AIR 1963, Supreme Court 1141 where it was held that:

"where the workers had gone on strike and the management has written a letter to its workers inter­alia stating that the workers should return to the work by a certain date failing which they will be deemed to have abandoned their services and their names would be removed from the muster rolls. Following the issuance of such notice to the workers, the workers did not return to their work with the management on the date which was so mentioned in the notice and the management ultimately removed their names from muster rolls and in such circumstances , the Sh.Rajveer vs M/s Golyan Metal Pvt.Ltd.

Hon'ble Supreme Court has held that such removal of the names of the workers from the pay rolls amounts to writing another unilateral contract by the management and the same is nothing less than termination of the services of the workman and ultimately the workers were held to be entitled for compensation".

13 In this case also, the situation appears to be identical and merely by writing a letter and without conducting any inquiry against the workman regarding his absence from duty , in the considered opinion amounts to termination of the services of the workman. Accordingly, it is held that the management has failed to prove that the workman has abandoned his services.

14 Now, coming to the issue of termination. Some of the facts have already been discussed with respect to termination while discussing the facts hereinabove and as far as other aspects are concerned, they would be discussing now.

15 It is categorically stated by the workman that he had been terminated on 26.8.2010. The management although has not taken any objection that the workman has not completed continuous 240 days with the management in the preceding year from the alleged date of his termination in the preliminary objections yet in para no.16 of the WS, the management somehow stated that the workman has not completed continuous 240 days with the management during the preceding year from the alleged date of his termination. Since this is one of the legal issue , it should have been taken as preliminary objection but nevertheless it would be disposed off as the court feels it necessary to dispose off this controversy as well.

Sh.Rajveer vs M/s Golyan Metal Pvt.Ltd.

16 Now, coming to the issue with regard to continuously working for 240 days of the workman with the management in the preceding 12 months from the alleged date of his termination. It is argued by Ld.ARM that keeping in view the judgment titled as The Range forest officer vs S.T Hadimani 2002 LLR 339 Supreme Court of India wherein it was held that :

"It is for the claimant/workman to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination and filing of affidavit can not be regarded as sufficient evidence for any court or Tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year". Once the management has stated that the workman has not completed continuous 240 days during the preceding year from the alleged date of his termination then the workman is duty bound to prove the same.

17 In the present case, the management in para no.3 of the WS has stated that this workman was working with the management from 1.2.09 and had abandoned his services w.e.f 26.8.2010 and in para no.6 of the WS has stated that this workman had earlier worked with M/s Vinayak Metal Industries from 18.5.06 to 30.3.08 and had taken his full and final settlement from the said firm . Keeping in view the admission of the management, , it appears that the workman had been working continuously with the management atleast w.e.f 1.2.09 if not from 2002 as is being alleged by the workman in the statement of claim.

18 The alleged date of termination in this matter is 26.8.2010. Management has stated that the workman was working with the Sh.Rajveer vs M/s Golyan Metal Pvt.Ltd.

management w.e.f 1.2.09 and then it is contended that he started remaining absent from 26.8.10. It is nowhere the pleadings of the management that from 1.2.09 , the workman had ever been running absent or was on leave unauthorizedly or was somehow absent from duty for a considerably long period. It is not the case of the management at all. Until and unless the management contends that although the workman was working with the management from 1.2.09 yet he was irregular in his service or he used to remain absent without any intimation then in all probability, he is deemed to be in continuous service and even if he is absent & his leaves have been sanctioned subsequently for the period when the workman was absent then also such absence if explained is counted towards regular service. Therefore, contention raised by the management is well found only to the case when the management would plead that the workman was running absent & then the workman would have to prove that he had completed 240 days of continuous service with the management. If the management itself is admitting that the workman joined the management on 1.2.09 & started remaining absent w.e.f 26.8.10 only, then it amounts to admission that the workman has been working continuously with the management upto 26.8.2010.

19 Now, coming to the termination aspect. The incident of 26.8.10 has already been explained. It is being corroborated with the statement of claim as filed by the claimant and no inquiry has been held by the management after the fact that the workman alleged that he had reached the office after having received the letters and he was not allowed to resume the duty. From Sh.Rajveer vs M/s Golyan Metal Pvt.Ltd.

all such facts, the court is of the opinion that the workman has been able to prove that his services have been terminated illegally by the management. Issue no.1 & 5 are answered accordingly.

ISSUE NO.2 20 Onus to prove this issue was upon the management and it had to prove that there is no industrial dispute in between the workman and the management. From the pleading and evidence which has come on record, the workman has alleged that he was terminated on 26.8.2010 and thereafter he was not reinstated despite various letters whereas defence of the management is that the workman was absenting from duty and after writing 7 letters to the workman, the management has deemed that the workman has abandoned the job. Therefore, prima­facie this issue was not required to be framed as there is ample evidence on record that the workman is asserting a fact with respect to termination whereas the management is denying the same. Word 'Industrial Dispute' has been defined in section 2(K) of the I.D Act, 1947. Section 2(K) of the I.D Act, 1947 reads as under:

'industrial dispute' means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non­ employment or the terms of employment or with the conditions of labour, of any person;

Keeping in view the facts and the law point, the issue no.2 is decided against the management by holding that there exists industrial dispute in between the workman and the management.

Sh.Rajveer vs M/s Golyan Metal Pvt.Ltd.

ISSUE NO.3 21 Onus to prove this issue was upon the management and it had to prove that the workman had not been working with the management on the alleged date of termination. However, the Ld.ARM argued that the issue no. 3 is not arising out of the pleadings and on his request, the issue no.3 was deleted from the list of issues vide order dt.30.4.2012.

ISSUE NO. 6 & 7 RELIEF 22 Court while disposing off the issue no. 1 & 5, it has been held that the workman has been terminated illegally on 26.8.2010 and the management has been able to prove that the management has closed its manufacturing activities on 21.2.2011. Once the management has closed its factories , the reinstatement of the workman is not possible and, therefore, compensation would be better option.

23 Workman in his cross examination has deposed that he is unemployed as on today and he is married having thee children. He further deposed that he is living with his brother and brother­in­law and his family is living in village with his father. He although searched for job but did not get the employment. These facts are sufficient to opine that the workman has not remained unemployed for unlimited period. As far as the amount of compensation is concerned, the court is of the opinion that in such cases the lump sum compensation would meet the ends of justice. The court also find support from the following judgments:

1 Rameshwar Dayal vs Presiding Officer Labour Court no.VI, Delhi & Anr.2007 (3) LLJ 729(DHC) Sh.Rajveer vs M/s Golyan Metal Pvt.Ltd.

wherein the Hon'ble Delhi High Court came to the conclusion that 'a lump sum amount of Rs.50,000/­ as compensation in lieu of reinstatement and back wages towards full and final settlement of all claims of the workman was an appropRaite relief'.

          2       In Kishan Lal and Ors Vs Govt.of NCT of Delhi &  
          ors   2007   VI   AD(Delhi)   13,   the   Hon'ble   Delhi   High  
          Court    held mainly to the effect that 'in lieu of grant of  
          relief   of   reinstatement     and   full   back   wages,   the  

management was directed to pay to each of the workmen a lump sum compensation of Rs.40,000/­ towards full and final settlement of all claims of each of such workmen' 24 Keeping in view the totality of the facts and circumstances, the court is of the opinion that the interest of justice would meet if a lump sum compensation to the extent of Rs.25,000/­ is awarded to the workman without referring any opinion on the fact with respect to the allowance received by the workman on closure of the factory. The management is directed to pay the awarded amount from date of award within a period of one month, failing which this amount shall carry a simple interest @ 8% per annum till realization.

A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.

ANNOUNCED IN OPEN                                            (S.S.MALHOTRA)
COURT ON 3rd APRIL, 2013                     PRESIDING OFFICER 
                              LABOUR COURT­IX/KKD COURTS:DELHI


                                              Sh.Rajveer vs M/s Golyan Metal Pvt.Ltd.
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  Sh.Rajveer vs M/s Golyan Metal Pvt.Ltd.
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                    ID no.588/11

28.3.2013

Present:            Workman in person.

Vide my separate award, a lump sum compensation to the extent of Rs.25,000/­ is awarded to the workman. Accordingly, the management is directed to pay the awarded amount from date of award within a period of one month, failing which this amount shall carry a simple interest @ 8% per annum till realization.

A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.

(S.S.MALHOTRA) POLC­IX/28.3.2013 Sh.Rajveer vs M/s Golyan Metal Pvt.Ltd.

Sh.Rajveer vs M/s Golyan Metal Pvt.Ltd.