Delhi District Court
). Ramesh Kumar S/O Shri Ram Khilawan vs Unknown on 12 March, 2015
IN THE COURT OF SHRI NARINDER KUMAR
ADDITIONAL DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER : LABOUR COURTXIX
KARKARDOOMA COURTS : DELHI
LIR No. 931/2011
UNIQUE ID NO. 02402C0 434362004
1). Ramesh Kumar S/o Shri Ram Khilawan
2). Mohd. Mustakeen S/o Shri Jaleel
3). Amar Deep S/o Shri Rajender Pandit
4). Dashrath Kumar S/o Shri Khukhi Pandit
5). DoodhNath S/o Shri Ram Surat
6). SB Yadav S/o Shri Matapher
7). Pradeep Kumar S/o Shri Uma Shanker
......WORKMEN
Versus
M/S Superior Crafts
C1, Udyog Nagar,
Peera Garhi, New Delhi - 110 041
Also at : D1, 2, Udyog Nagar,
Peera Garhi, New Delhi - 110 041 ......MANAGEMENT
Date of institution : 03.11.2004
Date of award : 12.03.2015
Ref. No. F.24(1517)/04/Lab/442428 dated 04.8.2004
LIR No. 931/2011 Page 1 / 15
A W A R D
In exercise of powers conferred by section 10(1)(c) and 12
(5) of the Industrial Disputes Act, 1947 (hereinafter referred as 'Act') with
Labour Department Notification No. F1/31/616/ESTT/2008/7458 dated
3rd March 2009, the Dy. Labour Commissioner, Government of NCT of
Delhi referred the following "industrial dispute" to this Labour Court for
adjudication :
"Whether the services of S/Shri Ramesh Kumar S/o Ram
Khilawan , Mohd. Mustakeen S/o Jaleel, Amar Deep S/o
Rajender Pandit, Dashrath Kumar S/o Khukhi Pandit,
DoodhNath S/o Ram Surat, SB Yadav S/o Matapher and
Pradeep Kumar S/o Uma Shanker have been terminated
illegally and/or unjustifiably and if so, to what relief are
they entitled and what directions are necessary in this
respect?"
2. Joint statement of claim came to be filed on behalf of all the
six claimants named above. Surprisingly, the claim is unsigned one. Upon
service of notice, management put in appearance and filed written
statement contesting the claim.
It may be mentioned here that during pendency of the industrial dispute
before this Court, four claimants namely Amardeep, Shiv Bahadur Yadav, Md.
Mustakim and Ramesh Kumar arrived at amicable settlement with the
management and that is how claims of Pradeep Kumar, Dashrath Kumar and
Doodhnath - claimants remain to be adjudicated as regards the industrial
LIR No. 931/2011 Page 2 / 15
dispute referred to this Court.
Case of workmen Pradeep Kumar, Dashrath and Doodhnath :
3. As per statement of claim, case of the three claimants is that
they got employed with the management on 22.2.2002, 31.12.2002 and
10.12.2002respectively, as a Tailor at a monthly salary of Rs.3209/ but their services were illegally terminated on 21.4.2004. As claimed by the claimants, the management mainly used to manufacture ready made garments and had employed more than 1000 employees in the factories at the above mentioned two addresses, i.e. C1, Udyog Nagar, New Delhi and D1II, Udyog Nagar, New Delhi and at other places. The management is covered within the definition of "Industry" under the Act. Further more, provisions of the Industrial Employment (Standing Orders) Rules, 1946 are applicable to the management and services of the workman are covered by the terms and conditions available in the Model Standing Orders.
As claimed by the claimants, when they and coworkers raised dispute regarding the date of their appointment, the matter came up before the Conciliation Officer. Management started putting pressure on them for withdrawal of the matter, but when they refused to do so, the management expelled them and five coworkers from service on 21.4.2004 and that too without issuing them any show cause notice or seeking permission from the Government. Claimants have further alleged LIR No. 931/2011 Page 3 / 15 that they having worked with the management for more than 240 days in an year, termination of their services by the management is illegal. Version of Management :
4. Management, in its written statement, raised preliminary objection to the maintainability of the claim by pleading that claimants were probationers and their services were dispensed with , in accordance with law for want of satisfactory performance, vide letter dt. 20.4.2004.
Management has further pleaded that workmen Pradeep Kumar, Dashrath and Doodhnath were employed by the management on 01.3.2004 at monthly salary was Rs.3287/.
As regard designation and last drawn salary of the workman , the management has further pleaded the same to be matter of record. On the point of nature of business carried out by the management, applicability of the statute, proof of units and strength of the establishment, management has again pleaded the same to be matter of record. Management has denied that the workmen worked for 240 days, as alleged in the claim.
5. From the pleadings of the parties, following issues were framed on 10.9.2005 :
1). As per terms of reference.
2). Relief.
6. In order to prove his case, Pradeep Kumar - workman has LIR No. 931/2011 Page 4 / 15 stepped in the witness box as WW3 and tendered in evidence his affidavit Ex.WW3/A and documents Ex.WW3/1, i.e. copy of complaint submitted by him to the Conciliation Officer, Labour Office, Karampura New Delhi. Dashrath and Doodhnath workmen have not stepped in witness box or led evidence despite opportunity.
On the other hand, management has examined Shri YK Sharma - Manager (Personnel) as MW1 and Shri Shashi Bhushan General Manager ( HR & IR) as MW2.
7. I have heard learned authorized representatives for the parties and have gone through the record.
Discussion :
Issue No. 1/Reference :
8. In his affidavit Ex.WW3/A , Pradeep Kumar - claimant has testified that he got employed with the management on 22.2.2002 and that his last drawn monthly wages were to the tune of Rs.3209/. He has further testified that during employment he had clean service record there being no complaint of any kind against him.
As regards job with the management, claimant has testified that he used to serve as a Tailor and the management mainly indulged in manufacture of ready made garments. Management used to run factory at six places, details whereof has been given in para No. 5 of the affidavit.
As further testified by the workman , in all there were more than LIR No. 931/2011 Page 5 / 15 1000 employees in the aforesaid six factories of the management where same kind of job used to be done and that all the factories were under the control of head office at Satyam Cinema Building, Patel Nagar, New Delhi.
9. Workman has further testified regarding termination of his service by the management on 21.4.2004 without issuing him any show cause notice or seeking permission from the Government or preparation of any seniority list, even though he had worked with the management for a period of 240 days in an year. As regards his efforts made to get employment with the management, after termination of his services, workman has testified to have reported the matter to the Labour Department. In this regard, he has proved copy of complaint Ex.WW3/1 submitted to the Labour Conciliation Officer. As per this document he got employed with the management as a Tailor for 22.2.2002 and drew last salary @ Rs.3209/. As further alleged in this complaint, the management illegally terminated his services on 21.4.2014 without complying with the provisions of Section 25F of the Act.
In his crossexamination claimant admitted that he did not possess any documentary evidence in proof of the fact that he had joined the management w.e.f. 22.2.2002 but he volunteered that no such document was ever issued by the management. As regards contribution , the workman admitted that no contribution towards PF was deducted from his LIR No. 931/2011 Page 6 / 15 wages by the management. However, subsequently he submitted that only in the last month of his job with the management, amount towards PF contribution was deducted by the management.
According to claimant, he was not issued any ESIC card by the management. However, he admitted to have not filled in requisite form for forwarding the name of ESI Department.
10. Ex.WW3/M1 is letter of appointment purported to have been issued by the management to WW3 - workman Pradeep Kumar. Ex.WW3/M2 is joining report by him. In his crossexamination , workman admitted his signatures on Ex.WW3/M1 and signatures and thumb impression on Ex.WW3/M2. But further explained that these documents were blank at the time he had put his signatures. As per its contents, workman joined the management on 01.3.2004 at 9.00 AM as a Tailor. Ex.WW3/M3 is the prescribed Form No. 3 for the purpose of contribution towards the ESIC. Workman however, admitted his signatures onEx.WW3/M3. It also pertains to workman Pradeep Kumar. As per this document, date of appointment of Pradeep Kumar is 01.3.2004. It is true that on the basis of this document, contents whereof have not been disputed by the workman , it can be said that his date of appointment was 01.3.2004, but at this stage reference may be made to the pleas put forth by the management in the written statement wherein it was claimed that photocopies of appointment letters were being annexed to the LIR No. 931/2011 Page 7 / 15 written statement but the actual date of joining of the workmen , including that of Pradeep Kumar were not specified in the written statement. There is no cogent and convincing evidence on record led by the management that copy of the appointment letter including Ex.WW3/M1, i.e. in respect of Pradeep Kumar, was issued to him on the very date of his employment, so as to say that he was actually employed w.e.f. 01.3.2004 and not prior thereto. Other coworkmen have also deposed in support of their claim regarding date(s) of employment, i.e. in the year 2002. It remains unexplained as to why so many workmen would claim the date of their employment in the year when according to the management they were employed on 01.3.2004. It cannot be said with certainty that Pradeep Kumar, workman was employed w.e.f. 01.3.2004 and that his services came to an end on 20.4.2004, i.e. during the period of probation .
Even otherwise, it was for the management to prove that the workman did not perform his job to the satisfaction of the management. In this regard, management has not led any cogent and convincing evidence. There is nothing in the statements of the two witnesses examined by the management as to in what respect the job performed by the workman was not up to the satisfaction of the management. As a result, it cannot be said that the management could legally dispense services of the workman on 20.4.2004.
LIR No. 931/2011 Page 8 / 15
Ex.WW3/M4, i.e. letter dispensing service of workman , admittedly bears correct card No. 267 of this workman. According to the workman, this letter Ex.WW3/M4 was not offered to him. As further stated by him, this letter was not received, he having proceeded to his native place. As further explained by him, he had been residing at his native place ever since April 2004.
11. MW1 Shri YK Sharma - Manager of the Management has admitted in his crossexamination that Industrial Employment (Standing Orders) Rules, 1946 was applicable to the management. He reiterated in his cross examination that workman were on probation . He denied that the management did not take the workman on duty from 21.4.2004. However, he admitted that when services of the workmen were dispensed with , they were not paid any retrenchment compensation . He clearly stated that services of workmen were dispensed with on account of their unsatisfactory performance.
12. As held above, management has failed to specify that the workman did not serve the management to its satisfaction so as to dispense with his service on 20.4.2004. MW1 Shri YK Sharma admitted in his crossexamination that in the year 200304, about 200250 workers were working with the management. Having regard to the nature of work being performed by the management, this Court finds merit in the contention raised by learned AR (for workman) that provisions of Chapter LIR No. 931/2011 Page 9 / 15 VB of the Act were applicable to the establishment of the management, in view of the provisions of Section 25K of the Act.
13. As per provisions of Section 25N of the Act, "no workman employed in any industrial establishment, to which Chapter VB applies, who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until
(a) the workman has been given three months' notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; and
(b) the prior permission of the appropriate Government or such authority as may be specified by that Government by notification in the Official Gazette has been obtained on an application made in this behalf".
14. Herein , there is nothing on record to suggest that the management served any three months' notice upon the workman or paid him in lieu of such notice, wages for the period of the notice, or sought prior permission of the government, as provided under Section 25N (1)
(a)& (b) of the ID Act. In the given situation , this Court finds that the management illegally terminated services of Pradeep Kumar who had been in its continuous service for not less than one year, without complying with the conditions precedent, noticed above. Hence, this issue is decided in favour of workman Pradeep Kumar and against the LIR No. 931/2011 Page 10 / 15 management.
Issue No. 2/Relief :
15. Learned AR (for management) has submitted that the management closed its business in the year 2008 and as such workman would not be entitled to the relief of reinstatement. In this regard, learned AR (for management) has referred to Ex.MW2/1, MW2/2 and MW2/3. These letters were sent by the management to the Regional Director, ESIC, Regional PF Commissioner and Dy. Chief Inspector of Factories on 24.12.2008, 24.12.2008 and 27.2.2009 respectively. On the other hand, learned AR (for workman) has submitted that MW1 Shri YK Sharma while entering the witness box tendered his affidavit as a Manager of the Management and as such it cannot be said that the management closed its business in 2008.
It is true that MW1 testified in his affidavit Ex.MW1/A as Manager of the management, but learned AR (for management) has explained that the Manager is still there, so as to represent the management in various disputes pending with the management, though the industrial units have been closed down in the year 2008. Fact remains that there is nothing on record to suggest that management is still running any of its units after having discontinued its functions in all the units w.e.f. 17.12.2008. So, there is no question of reinstatement in service of workman Pradeep Kumar.
LIR No. 931/2011 Page 11 / 15
In the given circumstances, this Court deems that it is a fit case to pay a lumpsum compensation to workman Pradeep Kumar on account of illegal termination of his service by the management.
It is in the statement of workman that since April 2004, he had been residing at his native place in District Rai Barelley but doing nothing. He did not search for job of tailor in Delhi after having left for his native place. He could not get job even at his native place. Management has not led any evidence that the workman got employed with any management after termination of his services. But the fact remains that the workman is a Tailor and he being a skilled person he must not have been sitting idle.
Having regard to all the facts and circumstances, this Court deems it a fit case to allow a lumpsum compensation of Rs.40,000/ to workman Pradeep Kumar.
Claim of workman/Dashrath & Doodhnath :
16. As noticed above in the terms of reference, name of Dashrath Kumar and Doodhnath also find mention as the workmen whose industrial dispute were referred to this court.
Joint statement of claim was filed on their behalf also on the averments that the management terminated their services illegally on 21.04.2004 from the post of Tailor and that too without issuing them any show cause notice or seeking permission from the government, although, they had served for a period of more than 240 days in an year preceding LIR No. 931/2011 Page 12 / 15 the date of his alleged termination from service. The management admitted the factum of employment of these workman also but pleaded that they were employed as probationers and their services were dispensed with, vide letters dated 20.04.2004, the reason being that they did not serve to the satisfaction of the management. It was denied that the workmen worked for 240 days in a year.
However, when the matter was listed for evidence of the workmen , neither Dashrath nor Doodhnath entered the witness box despite ample opportunities. So, this is a case where these two workmen have failed to prove that they remained in employment with the management for a continuous period of 240 days in a year with the management as alleged by them in the statement of claim. For want of evidence, it cannot be said that management terminated their services illegally without complying with essential conditions as provided u/s 33 of the Act as claimed by them.
Accordingly, the claimants Dashrath and Doodhnath are held not entitled to any relief as prayed in the statement of claim.
Reference regarding dispute raised by Dashrath and Doodhnath is answered accordingly.
17. As noticed above, during the pendency of the industrial dispute/reference before this court, Amardeep, Shiv Bahadur Yadav, Md. Mustakim and Ramesh Kumar arrived at settlement with the LIR No. 931/2011 Page 13 / 15 management. Vide order dated 07.02.2009, my Ld. Predecessor felt satisfied that Shiv Bahadur and Amardeep, workmen voluntarily settled their dispute with the management and had received settlement amount of Rs. 7000/ each , from the management and that nothing survived for adjudication qua the industrial dispute of these workmen.
Workman Ramesh Kumar also settled his dispute on 17.04.2013 for a sum of Rs. 30,000/ paid to him on 17.05.2013 whereas Md. Mustakim settled his dispute on 29.11.2012, for a sum of Rs. 18,000/.
Accordingly, settlement award is passed with respect to these four workmen namely Amardeep, Shiv Bahadur Yadav, Md. Mustakim and Ramesh Kumar and reference regarding their dispute is answered accordingly.
18. In view of the findings on the above issues, it is directed that the management shall pay an amount of Rs.40,000/ as compensation to workman Pradeep Kumar within 30 days of publication of the Award failing which it shall carry an interest @ 9% per annum till the date of actual payment.
Reference is accordingly answered. Let copy of Award be sent for publication and file be consigned to Record Room. ANNOUNCED IN OPEN COURT ON 12th day of March 2015 (Narinder Kumar) Addl. District & Sessions Judge LIR No. 931/2011 Page 14 / 15 Presiding Officer Labour CourtXIX Karkardooma Courts, Delhi LIR No. 931/2011 Page 15 / 15