Delhi District Court
Arvind Prasad Yadav vs M/S Roshan Di Kulfi on 30 May, 2024
IN THE COURT OF SH. VINAY SINGHAL,
DISTRICT & ADDL.SESSIONS JUDGE,
POLC-VIII: RADC NEW DELHI
LIR No : 1428-22
In the matter of :
Sh. Arvind Prasad Yadav
S/O Sh. Fateh Mahto
R/O : Village-Nimadih, PO- Nimadih,
PS- Gawan, Nimadhi Giridih, Jharkhand-815313
through
Sh Gajraj Singh Tomar (General Secretary),
Pragatisheel Mazdoor Sangh-I-148 & 161,
Karampura, New Delhi-110015
...workman
Versus
M/s Roshan Di Fulfi
through its proprietor,
Shop No. 2816, Ajmal Khan Road,
Karol Bagh, New Delhi-110015 ....Management
Date of Institution : 01.08.2022
Date of pronouncement : 30.05.2024
AWARD
The Jt. Labour Commissioner, Govt of NCT, Delhi while
exercising his power u/s 10 (1) (c) and 12 (5) of the Industrial Dispute
Act (hereinafter refer to as the Act) r/w notification
No.F-24(40)/2021/Ref/CD/Lab/185 dated 07.01.2022 has sent the
following reference to this court for adjudication :-
"Whether the services of workman Sh. Arvind Prasad Yadav
S/O Sh. Fateh Mahto, age about 35 years 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?"
LIR No. 1428-22 1/11
PART-A
REFERENCE/CLAIM
1.After being called upon, the workman filed statement of claim.
2. As per the workman he was employed with the management since 01.08.2019 on the post of Waiter at a monthly salary of Rs. 17069/-.
3. It is claimed that the management was not providing the facilities like appointment letter, leave book, attendance Register, Casual & Festive leave, overtime, bonus and other allowances and when the same were demanded, the management terminated him on 19.06.2021 without any notice.
4. A demand letter dated 12.07.2021 claiming reinstatement and the allowances was sent by registered post but the same was neither replied nor acted upon.
5. The workman thereafter approached the Labour Commissioner who summoned the management but the matter could not be settled therein and accordingly the above reference was made to this court.
6. The workman also claimed that since the date of his termination, he is unemployed.
PART-B MANAGEMENT'S STAND/REPLY
7. It is submitted that the management never terminated the services of claimant.
8. It is stated that all the facilities as having not provided as mentioned by the claimant in his petition, stand provided to the claimant by the management.
LIR No. 1428-22 2/119. It is claimed that in the year 2021 due to prevalence of COVID safety norms, the claimant was directed to report for duty at the workshop of the management w.e.f 19.06.2021.
10. It is stated that the claimant refused to report for duty at the workshop but rather stayed present in the shop and disturbed the regular working of the shop beside causing inconvenience to the customers.
11. It is stated that on 20.06.2021 the management issued a written letter to the claimant directing him to report for duty at workshop w.e.f 21.06.2021.
12. It is stated that the claimant failed to comply with the said letter dated 20.06.2021.
13. It is further stated that the management again wrote a letter to the claimant calling him to report for duty but instead of complying with the same, the claimant approached the labour authorities.
PART-C ISSUES
14. From the pleading of the parties the following issues were framed vide order dated 21.11.2022.
(a) Whether services of workman Shri Arvind Prasad Yadav S/O Sh Fateh Mahato have been terminated illegally and /or unjustifiably by the management on 19.06.2021? OPW
(b) Whether services of workman have not been terminated by management rather workman having failed to report for duty w.e.f 19.06.2021 onwards has disobeyed instructions by not joining duty despite letter dated 21.06.2021 issued by LIR No. 1428-22 3/11 management in writing? OPM
(c) Relief.
PART-D WORKMAN'S EVIDENCE
15. as far as claimant is concerned he examined himself as WW1-1 and proved on record the following documents : -
(a) Ex- WW1/A - Affidavit of evidence tendered on 20.03.2023
(b) Ex-WW1/1 - Demand notice dated 12.07.2021.
(c) Ex-WW1/2 - Original postal receipt.
(d) Ex-WW1/3. - Copy of complaint dated 28.06.2021 made to Asst. Labour Commissioner.
(e) Ex WW1/4 - Photocopy of complaint dated 21.06.2021 filed before SHO Karol Bagh.
(f) Ex WW1/5 - Photocopy of letter/ reply dated 14.08.2021 addressed to management referred as EX WW1/5 in affidavit be read as Mark -A.
(g) Ex WW1/6 - Photocopy of postal receipt.
(h) Ex WW1/7 - Office copy of statement of claim filed before Asst. Labour Commissioner.
(j) Ex WW1/8 - Photocopy of Appointment letter issued by the management dated 01.08.2019 is Marked as Mark B and the same is referred as Ex WW1/8 in affidavit.
(k) Ex WW1/9 - Photocopy of complaint dated 24.11.2020 is Mark-C and the same is referred as Ex WW1/9 in affidavit.
LIR No. 1428-22 4/11(l) Ex WW1/10 - Photocopy of complaint dated 24.03.2021 lodged before Deputy Labour Commissioner.
(m)Ex WW1/11 - Photocopy of complaint dated 12.02.2021 made to SHO PS Karol Bagh.
(n) Ex WW1/12 - Photocopy of complaint dated 10.02.2021 filed before Deputy Labour Commissioner is Ex WW1/13
(o) Ex WW1/13 - Photocopy of complaint dated 31.05.2022 filed before Dy. Labour Commissioner is Ex WW1/14.
(p) Ex WW1/14 - Photocopy of complaint dated 24.08.2021 filed before Dy. Labour Commissioner is Ex WW1/15.
(q) Ex WW1/15 - Photocopy of complaint dated 29.11.2021 filed before Dy.Labour Commissioner is Ex WW1/16.
16. The claimant deposed along the line of the statement of claim
17. During his cross examination, the claimant deposed that the appointment letter was issued to him in the year 2019 despite he being in the employment of the management since 2008.
18. He also deposed that w.e.f 19.06.2021 he was asked to work at the workshop.
19. However, he also deposed that he was prevented from joining duty at workshop when he visited the workshop along with other co-workers and the Labour Inspector.
20. He also admitted the receipt of letter dated 20.06.2021 Ex WW1/M1 by virtue of which the management called upon him to report for duty at the workshop.
LIR No. 1428-22 5/1121. However, he also deposed that when in compliance of said letter dated 20.06.2021 Ex WW1/M1, he approached the workshop, he was asked to perform duties of removing garbage and to wash utensils.
22. He denied the suggestions that he did not report for duty on 20.06.2021 and 21.06.2021.
23. He also deposed that he was employed as waiter and accordingly in pursuance of letter Ex WW1/M1, he requested the management to not change the nature of duty as of waiter.
24. He also deposed that the management with the help of bouncers prevented him from joining the duties and in this respect the complaint dated 21.06.2021 Ex WW1/4 was also made with the SHO PS Karol Bagh.
25. He also deposed that since the date of his termination, he is unemployed till date.
PART-E MANAGEMENT EVIDENCE
26. The management examined its partner Sh Joginder Soni as MW1 who proved on record the following document :-
(a) EX MW1/A - Affidavit of evidence.
(b) Mark-A - Photocopy of Written Statement filed by the management before Conciliation Officer referred as Ex MW-1/1 in affidavit be read as Mark-A.
(c) Ex MW1/2 - Copy of reply dated 05.04.2021 to the notice dated 23.03.2021.
(d) Ex MW1/3 -Original postal receipt.LIR No. 1428-22 6/11
27. The MW1 deposed along the lines of stand taken in the Written Statement.
28. During the course of his cross examination, he admitted that the claimant was appointed on the post of waiter.
29. He denied the suggestion that after 21.06.2021 the claimant reported for duty a number of times but was prevented by the management from joining the duty.
30. He also deposed that he did not remember the last drawn salary of the claimant as claimed by the claimant or as claimed by management.
31. He also deposed that no domestic inquiry was conducted against the claimant.
32. During the course of cross examination of MW1 held on 22.04.2024 for the first time the management expressed its desire to take the claimant back on duty.
PART-F FINDINGS/CONCLUSION
33. After considering the claim, reply, document and the evidence led on record, the issue wise decision of the court is as under :-
34. Issue No.2-Whether services of workman have not been terminated by management rather workman having failed to report for duty w.e.f 19.06.2021 onwards has disobeyed instructions by not joining duty despite letter dated 21.06.2021 issued by management in writing? OPM
35. The onus to prove this issue was upon the management as the management has taken a stand to the effect that it never LIR No. 1428-22 7/11 terminated the services of the claimant but rather on account of COVID pandemic it was constrained to direct the claimant to report for duty w.e.f 19.06.2021 at the workshop instead of Restaurant where the claimant was originally working as a waiter and the claimant failed to comply with the said directions by not reporting at the Workshop and also failed to join the duty despite service of letter dated 21.06.2021 upon him.
36. Before proceeding with the stand taken by the management it is pertinent to discuss the nature and the role of the claimant w.r.t post to which he was originally appointed.
37. It is an admitted case of both the parties that the claimant was appointed on the post of waiter via appointment letter Mark B.
38. As far as the said letter Mark B is concerned, the same is relied upon by the claimant in the course of his evidence as discussed in Part D above.
39. As already discussed in Part D & E above, the management during the course of cross examination of the claimant did not put even a single question to him to the effect that in terms of said appointment letter Mark B he could have been asked to work in any other capacity/ role other than that of a waiter.
40. Similarly, the management even in its own evidence has not taken a stand that contrary to the terms of employment via appointment letter Mark B the claimant could have been asked to work in any other role than that of a waiter.
41. Both the parties accordingly admitted the role of the claimant as that of a Waiter.
42. In this background, stand taken by the management that the claimant who was working as a Waiter, was all of a sudden directed to report for duty at workshop w.e.f 19.06.2021 failed LIR No. 1428-22 8/11 to report for duty is to be scrutinized w.r.t its legality.
43. The management neither in its Written Statement nor in its evidence has taken a stand to the effect that it has done away with the position of waiter w.e.f 19.06.2021.
44. When the position of waiter were in existence even on 19.06.2021 and thereafter till date, the purported action on the part of the management to remove the claimant from the post of Waiter and directing him to work in some other role which also stand not defined either in the Written Statement or in the cross examination of the claimant or in its own evidence by the management, coupled with any document, the same can be stated to be a malafide action on the part of the management, done with a view to create a ground of disobedience against the claimant, in order to compel him or to remove him from the service.
45. In fact by virtue of the documents Ex WW1/9 to Ex WW1/14, which are the various complaints filed on behalf of the claimant against the management regarding the unfair service conditions, seen in the light of the stand taken by the management w.r.t event dated 19.06.2021/21.06.2021, the only conclusion which can be drawn is that the management developed a grudge against the claimant on account of him raising voice against the management before various Foras and finding a golden opportunity of COVID in 2021, took shield of the same and accordingly acted in a calculated and planned manner to harass the claimant by removing him from the post of Waiter and directing him to report for duty at workshop which is beyond the scope of his employment.
46. Even the management did not stop at this only as when it found LIR No. 1428-22 9/11 that the claimant was even willing to report for duty at workshop, went to the extent of engaging the help of bouncers to prevent the claimant from reporting for duty, regarding which a police complaint was also made by the claimant on 21.06.2021 with P.S. Karol Bagh, copy of which stand proved on record as Ex WW1/4.
47. Again there is no cross examination of the claimant from the side of the management w.r.t the content of Ex WW1/4 or any explanation on its own w.r.t said Ex WW1/4.
48. In these circumstances, it is very much clear that the management was having a grudge against the claimant for raising his voice against the unfair service condition, in the form of complaints to the concerned authorities via Ex WW1/9 to Ex WW1/14 and on account of the same, the management contrary to the terms of employment of the claimant as of the waiter, removed him from the said post by directing him to report for duty at workshop without specifying his role and thereafter prevented the claimant for even joining the duties at workshop with the help of bouncer qua which a police complaint was lodged via Ex WW1/4 and thereafter creating a ground of the claimant not joining the duties in the form of Ex WW1/M1 which is a letter dated 21.06.2021 levelling allegation against him that he failed to join the duty and using the same as a ground to paint the claimant as a culprit of voluntarily abandoning the job, in order to escape its liability.
49. Accordingly issue No.2 is decided against the management in view of the above findings.
LIR No. 1428-22 10/1150. Issue No.1-Whether services of workman Shri Arvind Prasad Yadav S/O Sh Fateh Mahato have been terminated illegally and /or unjustifiably by the management on 19.06.2021? OPW
51. In view of the outcome of issue no.2, the court has come to the conclusion that the services of the claimant were illegally and unjustifiably terminated by the management.
52. Furthermore, the offer made by the management during the course of its own cross examination in the year 2024, to the claimant to join the duties, again can be stated to be a ploy on its part to escape its liability.
53. Issue No.3-Relief.
54. In view of the outcome of issue no.1 & 2 the claimant is held to be entitled to reinstatement to the post of Waiter with full back- wages as the management has failed to prove that since the date of termination of claimant till date, the claimant is gainfully employed.
55. Ordered accordingly.
56. Reference answered accordingly.
57. Let copy of the award be sent to the appropriate Govt for its publication as per rules.
File be consigned to record room.
Announced in the Open Court ( VINAY SINGHAL) On 30.05.2024 DISTRICT & ADDL. SESSIONS JUDGE, POLC-VIII, RADC :DELHI LIR No. 1428-22 11/11