Delhi District Court
Virender Kumar S/O. Sh. Meghraj vs M/S. Vicky Electronics on 6 February, 2015
Virender Kumar Vs. M/s. Vicky Electronics ID No. 365/12
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI:
KARKARDOOMA COURTS: DELHI.
REFERENCE CASE (ID NO.) 365/12
UNIQUE CASE IDENTIFICATION NO. 02402C0361602012
In the matter of:
Virender Kumar s/o. Sh. Meghraj,
R/o. D140, Punjabi Basti,
Baljeet Nagar, New Delhi110008
C/o. All India Engineering General Mazdoor Union (Regd. 2566),
E127, Karampura, New Delhi110015 .... Workman / Claimant
Vs.
M/s. Vicky Electronics
(through its Proprietor Mr. Hanuman s/o. Mr. Prabhat Ram
R/o. K74, West Patel Nagar, New Delhi 110008)
RC77, Rajsthani Colony,
West Patel Nagar, New Delhi110008 ....Management
Date of institution : 24.11.2012
Date of reserving for award : 28.01.2015
Date of award : 06.02.2015
AWARD:
1.TERMS OF REFERENCE Vide Order No. F3(437)12/Ref./WD/LAB/1543 dated 06.11.2012 Deputy Labour Commissioner (West District), Labour Department, Government of N.C.T. of Delhi referred following industrial dispute between workman Virender Kumar S/o Sh. Meghraj, R/o. D140, Punjabi Basti, Baljeet Nagar, New Delhi110008 C/o. All India Page 1 of 13 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/06.02.2015 Virender Kumar Vs. M/s. Vicky Electronics ID No. 365/12 Engineering General Mazdoor Union (Regd. 2566), E127, Karampura, New Delhi110015 and management M/s. Vicky Electronics, RC77, Rajsthani Colony, West Patel Nagar, New Delhi110008 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 Sh. Virender Kumar S/o Sh. Meghraj have been terminated illegally and/or unjustifiably by the management; and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. CASE OF THE WORKMAN AS PLEADED IN THE STATEMENT OF CLAIM.
(i) The workman was working with the management on the post of 'Engineer' at the monthly salary of Rs. 9200/ per months since 15 years.
(ii) During the course of his employment, workman performed his duty honestly to the entire satisfaction of the management and during the said period, workman did not give any charge (sic - chance of ) complaint to the management.
(iii) ''That the management had not pay to minimum wages which was demanded by the workman time to time and also the workman demanded to provided the legal lawful facilities such as overtime wages, earned wages form the month of January 2012 and did not pay the salary month of 1/11/2011 to 28/01/2012. Appointment letter with correct date of entry, PF, Bonus etc. but the management had not provided to the same to the workman''. (sic)
(iv) ''That earlier the management had also terminated to workman on 28/01/2012 during the conciliation proceeding the management not take back on duty. Workman from his service without issues any charge sheet and without paying the earned wages at the Rate of minimum wage from the month of January 2012 and without conducted Page 2 of 13 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/06.02.2015 Virender Kumar Vs. M/s. Vicky Electronics ID No. 365/12 any domestic enquiry''. (sic)
(v) The management adopted antilabour policy and against the natural justice and also the management violated the provisions of u/s. 25 (F) and (G) of the Industrial Disputes Act, 1947.
(vi) The management had taken the signature of workman on various blank papers and voucher at the time of workman joining the service as well during the service period but the workman put the signature on the same as workman was very badly in the need of job / employment as well as in good faith of management. All the documents are with the management and there is each and every apprehension of misuse of these documents by the management at any stage.
(vii) The workman sent a demand notice through Registry AD dated 12.06.2012 but the management neither gave any reply nor reinstated the workman.
(viii) The workman searched for the job at many places but workman could not found any satisfactory job so the workman is unemployed since the date of termination.
(ix) The workman still wants to join the duty with the management with full back wages, continuity of services and all other attendant benefits.
With these averments, workman has prayed for an award of reinstatement with the management with full back wages, continuity of service and to pay the earned wages for 28 January, 2012 (sic) in favour of workman and against the management.
3. STAND OF THE MANAGEMENT AS PLEADED IN THE WRITTEN STATEMENT OF DEFENCE.
Management in the WS, while denying the case as pleaded by workman in the statement of claim, took the stand that claimant is a selfclaimed 'Engineer' and claimant worked only from 2007 to May 2011. As per management, claimant left the job as per his own willingness in the month of May, 2011 and has already taken his all Page 3 of 13 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/06.02.2015 Virender Kumar Vs. M/s. Vicky Electronics ID No. 365/12 dues and, therefore, there is no question of management not making payment of earned wages to the workman for the period from 01.11.2011 to 28.01.2012. Management denied the averments of workman regarding management taking his signatures on blank papers in toto and pleaded that all the relevant documents have been stolen by the claimant Banwari and management has lodged a complaint. Management also denied the averments of workman regarding workman searching for job and not getting any satisfactory job and pleaded that workman did not stay for a long time in other company's job due to his own quarrelsome behaviour and his dishonesty. FURTHER, management pleaded that there is no firm in the name of M/s. Vicky Electronics as it was closed in the month of September, 2012. Management also pleaded that claim of claimant is not maintainable as he has suppressed original facts that in the demand notice sent to management claimant mentioned that claimant was getting a salary of Rs. 7000/ whereas in the claim filed in Court claimant pleaded his monthly salary as Rs. 9200/. Management also pleaded that claim of claimant is not maintainable as claimant has pleaded herein that he was getting a salary of Rs.9200/ and also claimed that claimant was not getting minimum wages. At last management prayed for dismissal of claim of claimant in the interest of justice.
4. REJOINDER In the rejoinder, workman denied the stand taken by management in its WS and reaffirmed the averments made in statement of claim.
5. ISSUES Vide order dated 13.08.2013 following issues were framed:
(i) As per terms of reference.
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(ii) Whether the Management has closed its business in September, 2012 as per the preliminary objection no. 3 of the WS? OPM
(iii) Relief.
6. EVIDENCE Workman appeared in the witness box as WW1 Virender Kumar. Workman relied upon documents namely Ex.WW1/1 Complaint dated 15.06.2012 to the Asst. Labour Commissioner, Karampura, Delhi; Ex.WW1/2 Report (dated 07.08.2012) of Labour Inspector; Ex.WW1/3 - Demand Notice dated 12.06.2012; Ex.WW1/4 Postal receipt dated 02.06.2012; Ex.WW1/5 & Ex.WW1/6 AD Cards; Ex.WW1/7 Complaint dated 30.05.2012 to the Asst. Labour Commissioner, Karampura, Delhi; Ex.WW1/8 Letter dated 02.06.2012 sent to the management by union; Ex.WW1/9 & Ex.WW1/10 Postal Receipts dated 02.06.2012; Ex.WW1/11 AD Card; Ex.WW1/12 - Proceedings dated 10.06.2012 conducted in union's office; Ex.WW1/13 Statement of claim filed before Conciliation Officer, Labour Office, Karampura, Delhi and Ex.WW1/14 ESIC Card of workman. WE was closed on 12.03.2014.
Management examined MW1 Mr. Chunni Lal, MW2 Mr. Madan Lal and MW3 Mr. Hanuman Prasad Jewaria. Management relied upon documents Ex.MW3/1 Letter dated 30.04.2007 of ESIC sent to management; Ex.MW3/2 Certificate of Cancellation of Registration (dated 10.03.2014) under Delhi Value Added Tax Act, 2004; Ex.MW3/3 Letter dated 08.05.2013 sent by management to ESIC regarding closure of unit of management; Ex.MW3/4 Letter sent by management to Deputy Director, ESIC; Ex.MW3/5 Complaint dated 13.06.2012 made by management at PS Anand Parvat, Delhi and Ex.MW3/6 Proceeding Sheet dated 10.02.2014. ME was closed on 26.08.2014.
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7. On 13.11.2014, ld. counsel for management moved an application under section 11 of the Industrial Disputes Act, 1974 read with section 151 of CPC alongwith photocopy of Form DVAT 06. On 27.11.2014 ld. counsel for workman submitted that he does not want to file any formal reply to this application. Ld. counsel for workman further submitted that disposal of the case has been delayed on account of late moving of this application and if application is allowed, same may be allowed subject to cost payable to workman by management. In view of submissions made by ld. counsel for workman, application was allowed subject to cost of Rs.500/ payable by management to workman. Cost was paid.
8. APPLICATION OF WORKMAN FOR SUMMONING DOCUMENTS FROM MANAGEMENT.
On 18.09.2013, workman moved an application seeking production of (a) Muster roll, wages, leave day, gate entry register since December 1996 to January 2012 of management; (b) Application and appointment letter, appointment letter issued register of all employees including workman since December 1996 to January 2012 of management and (c) ESI & PF record of employees of management since December 1996 to January 2012 of management from the management. Management replied the application vide reply filed on 04.02.2014. Vide order dated 04.02.2014 application was kept pending till the stage of conclusion of evidence of both the parties. However, on 28.01.2015 this application was disposed off as not pressed as submitted by ld. counsel for workman.
9. ARGUMENTS I have heard Sh. Ajit Singh Adv. for workman and Sh. Rajeev Gupta Adv. for the management and perused the material available on judicial file very carefully. Page 6 of 13 (Anand Swaroop Aggarwal)
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10. My ISSUE WISE findings are as under: ISSUE NO. 2:
''Whether the Management has closed its business in September, 2012 as per the preliminary objection no. 3 of the WS? OPM'' Firstly I am taking issue no. 2. As per management it has closed its business in September, 2012. In this regard reliance is being placed on oral depositions of MWs as well as documentary evidence by way of Ex. MW3/2, Ex. MW3/3 and Ex. MW3/4. In crossexamination of MW3 Mr. Hanuman Prasad veracity of these documents has not been breached/even challenged. Ex. MW3/2 shows Nil G.T.O returns since 201213 which suggest closure of management. Workman has led no evidence to disprove Ex. MW3/2, Ex. MW3/3 and Ex. MW3/4.
MW3 Mr. Hanuman Prasad Jewaria denied the suggestions given to him in his crossexamination regarding nonclosure of its business by management. MW1 Mr. Chunni Lal and MW2 Mr. Madan Lal also deposed regarding closure of its business by management w.e.f. September, 2012. MW1 Mr. Chunni Lal and MW2 Mr. Madan Lal are independent and natural witnesses being residents in the nearby vicinity of place of business of management. In his crossexamination, MW1 Mr. Chunni Lal has been made to depose that, ''............At present, premises of management is lying locked and the same belongs to Mr. Hanuman Prasad..........''. Notably workman in his cross examination deposed that, ''...........Management is still doing its business. It is wrong to suggest management has closed in year September 2012. (vol. management has shifted to some other address which I do not remember at present)............'' These depositions of workman also suggest that possibility of management closing its business at the given address cannot be ruled out altogether. Workman did not depose Page 7 of 13 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/06.02.2015 Virender Kumar Vs. M/s. Vicky Electronics ID No. 365/12 about the address of the place where management has allegedly shifted its business. On the basis of material available on judicial record, preponderance of probability suggest that management closed its business as pleaded in WS. Issue is decided in favour of management.
ISSUE NO. 1: As per terms of reference.
(''Whether the services of Sh. Virender Kumar S/o Sh. Meghraj have been terminated illegally and/or unjustifiably by the management; and if so, to what relief is he entitled and what directions are necessary in this respect?") Here as per workman, workman was working with management since last 15 years and his services were terminated illegally/unjustifiably by management on 28.01.2012. On the other hand, management pleaded that workman worked with it since 2007 till May, 2011 and left the job as per his own willingness in May, 2011 and has taken all his dues. Admittedly, workman worked with management since 2007 till May, 2011 but management has led no documentary evidence regarding appointment of workman in 2007, working of workman with management till May, 2011 and management making payment of all the dues of workman at the time when workman allegedly left the job as per his own willingness. Management is relying upon Form DVAT 06 to show that business of management started on 31.08.2006. Much reliance cannot be placed on this document inasmuch as management in the WS nowhere pleaded that it started its business on 31.08.2006 despite specific averment of workman that workman was working with management since last 15 years. Depositions made by MW3 Mr. Hanuman Prasad in his evidence affidavit cannot be read in favour of management inasmuch as evidence beyond pleadings is not reliable. Form DVAT 06 by itself does not show that management started its business w.e.f 31.08.2006. It at the most shows that management was registered under the Delhi Value Added Tax Act, Page 8 of 13 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/06.02.2015 Virender Kumar Vs. M/s. Vicky Electronics ID No. 365/12 2004 w.e.f. 31.08.2006 and nothing more. There is no information in this document as regards start of its business by the management. Workman in his crossexamination deposed that, ''.......I have not filed any documentary proof to show that I was working with management since 1996. (vol. no such document was given by the management)..........''. The voluntary depositions of workman are worth credence inasmuch as even in respect of the period workman admittedly worked with management, management has not produced any documentary evidence regarding employment of workman with it. MW3 Mr. Hanuman Prasad in his crossexamination deposed that, ''........I did not give any appointment letter to workman......''. This suggest that management provided no documentary evidence to workman regarding its employment with the management. In such circumstances workman cannot be asked to produce documentary evidence to show that it worked with management since 1996.
Management in the WS pleaded that workman left the job as per his own willingness in May 2011 and has taken all his dues. But MW3 Mr. Hanuman Prasad in his crossexamination deposed that, ''...........It is incorrect to suggest that I terminated the services of workman on 28.01.2012 when workman demanded legal facilities. (vol. workman had gone to his village and fled away.). I did not write any letter to workman calling upon him back to join his duties. No domestic inquiry was conducted against the workman.........''. The above referred voluntary depositions are inconsistent with the stand of management taken in the WS. Firstly, the stand taken in WS has not been proved on judicial file by leading cogent evidence and, secondly, MW3 Mr. Hanuman Prasad in his crossexamination made voluntary statement inconsistent with the stand taken in WS. This undoubtedly suggest that defence taken by management is not true and, thus, case as pleaded by workman deserves to be believed to be true.
WW1 Mr. Virender Kumar deposed as under:
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''I am 12th class passed in Agriculture. I can read and
write little a bit English. I have filed this case for claiming legal benefits and my rights. I know contents of my evidence affidavit. I have mentioned my salary as Rs.9200/ pm. At the time of my joining with the management my salary were Rs.5500/ pm. Ex.WW1/7 bears my signatures at point - A. Q. It is put to you that in Ex.WW1/7 you have mentioned your last drawn salary as Rs.7000/ but today you have deposed your last drawn salary were Rs.9200/. What you have to say?
A. Before the Labour Office management had disclosed my last drawn salary were Rs.9200/ pm. My last drawn salary was Rs. 7000/ only.
I have not visited the Oath Commissioner with my counsel at the time of attestation of my evidence affidavit.
Attention of the witness is drawn towards the para. no. 8 of his evidence affidavit of the workman. Witness has clarified that his salary for the months of November, December 2011 and January 2012 is due and payable by the management. Witness has further clarified that para. no. 8 pertains to workman Banwari and this para. has been wrongly incorporated in my affidavit. I was availing ESI facility for the period of 2 - 3 years, exact time period I do not know, however, subsequently, it was got stopped by the management. I did not make any complaint before any authority when ESI facility was stopped. (Vol. Management assured me that facility will be started again.) I do not possess any engineering degree...........'' These depositions do not help the management in any manner inasmuch as the same do not go to the root of the matter regarding termination of services of workman by management in violation of provisions of section 25 F of the Industrial Disputes Act, 1947.
It is alright that workman claimed to be working as 'Engineer'. Workman also deposed that he is 12th class pass in 'Agriculture' and he does not possess any engineering degree. MW3 Mr. Hanuman Prasad in his crossexamination deposed that, Page 10 of 13 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/06.02.2015 Virender Kumar Vs. M/s. Vicky Electronics ID No. 365/12 ''...........The workman was working with the management since 2007 as a 'Helper'........''. This all suggest that workman never meant to say that workman was an 'Engineer', as such, per its literal meaning. Even the management did not plead that Mr. Virender Kumar is not a workman u/s. 2 (s) of the Industrial Disputes Act, 1947. Merely because workman did not visit the oath Commissioner does not mean that his entire evidence deserves to be discarded. In any case, workman deposed before this court on Oath. Workman has explained inconsistency as regard last drawn wages as mentioned in statement of claim and as mentioned in demand notice. Overwriting in demand notice Ex. WW1/3 regarding last drawn wages also does not go to the root of the matter.
Admittedly management did not write any letter to workman calling upon the workman to join back his duties. Also management did not conduct any domestic enquiry against the workman. If workman had really gone to his village and fled away and management did not terminate the service of workman, management at least should have issued letter to workman calling the workman to join back his duties. But management did not do so. Management did not specifically deny service of demand notice on it. It did not reply the demand notice. As per Ex. WW1/2 management refused to reinstate the workman in service.
In view of above detailed discussion, it can be said, by applying the principle of preponderance of probabilities, that management terminated the services of workman in violation of section 25 F of the Industrial Disputes Act, 1947. However, provision of section 25G are not applicable for want of necessary pleadings. Even the necessary averments regarding applicability of section 25G are not there in the statement of claim.
NOW MERELY BECAUSE management terminated the services of workman in Page 11 of 13 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/06.02.2015 Virender Kumar Vs. M/s. Vicky Electronics ID No. 365/12 violation of provisions of section 25 F of the Industrial Disputes Act, 1947 does not mean that workman is entitled to be reinstated in service with management with full back wages. In view of my findings on issue no. 2, obviously, question of reinstatement of workman in service with management does not at all arises. Workman in the statement of claim pleaded that despite searching for job at many places but workman did not get satisfactory job. It means workman did find job but workman did not consider the same satisfactory. There is no explanation as to why workman did not consider the job which he found to be satisfactory. Also workman is a very experienced person and, thus, he cannot be believed to be unemployed throughout since date of termination of his services. There is no explanation from the side of workman, to how workman has been maintaining his family if he is totally unemployed since the date of termination of his services by the management. Thus, workman is held to be not entitled to full back wages.
In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the tune of Rs. 1,60,000/ (Rupees One Lac Sixty Thousand Only) to the workman for illegal/unjustified termination of his services by the management and for consequences thereof / back wages would meet the ends of justice. If this amount of Rs. 1,60,000/ (Rupees One Lac Sixty Thousand only) is not paid to workman within one month of award coming into force management shall be liable to pay interest @ 9% per annum on this amount from the date of the award till its payment. A sum of Rs. 8,000/ (Rupees Eight Thousand only) is also awarded to workman as costs of litigation payable by the management. ISSUE NO. 3: Relief AS ABOVE
11. Reference stands answered accordingly.
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12. Copy of the award be sent to Office of the concerned Deputy Labour Commissioner for further necessary action.
13. File be consigned to Record Room after completing due formalities. (Pronounced in the open court on 06.02.2015) (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi Page 13 of 13 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/06.02.2015