Delhi District Court
Shri Mool Chandra vs Shri Chelsea Mills on 27 August, 2014
IN THE COURT OF SHRI SANJAY SHARMA :
PRESIDING OFFICER LABOUR COURTXIX (EAST) :
KARKARDOOMA COURTS : DELHI
LIR No. 166/2011
UNIQUE CASE ID NO. 02402C0 244262009
Shri Mool Chandra
S/o Shri Chhote Lal
C/o Readymade Garment Exports Employees Union (Regd.)
I441, Karampura
New Delhi - 110 015 ......Workman
Vs
Shri Chelsea Mills
B7879, Mayapuri PhaseI,
New Delhi - 110 064 ......Management
Date of institution : 16.11.2009
Date of reserving judgment : 13.8.2014
Date of Passing of Award : 27.8.2014
Ref. No. F.24 (1698)/07/SWD/Lab/3545 Dt. 24.7.2009
A W A R D
The present industrial dispute between the parties was
referred by Secretary (Labour), Government of NCT of Delhi in
exercise of powers conferred by section 10(1)(c) and 12 (5) of the
Industrial Disputes Act, 1947 (hereinafter referred as 'Act'), read
LIR NO. 166/2011 Page 1 of 10
with Govt. of India, Ministry of Labour Notification No.
S11011/2/75/DK(1A), dated the 14th April, 1975 and Notification
No. F.1/31/616/Estt./2008/7458 dated 3rd March 2009, to the Labour
Court No. XIX for adjudication with the following terms of
reference:
"Whether services of Shri Mool Chandra S/o
Shri Chhote Lal have been illegally and/or
unjustifiably terminated by the Management
and if yes, to what relief is he entitled?"
2. On service of notice of reference, the workman filed
statement of claim with the prayer for passing an award in his
favour and against the management with direction to the
management to reinstate him back in service with full back wages
and continuity in service and other consequential benefits. He
alleged that he joined the management on 01.6.1996 at last drawn
monthly salary of Rs.4052/ and had a clean service record. He
alleged that he joined the Union which raised several industrial
disputes against the management including providing of PF and ESI
benefits to all employees upon which the management got annoyed
and terminated the services of several workers and some workers
were transferred from Delhi to Manesar. He further alleged that his
services were terminated on 16.8.2007 and his wages for August
LIR NO. 166/2011 Page 2 of 10
2007 were also not paid. It was further submitted that he is
unemployed since the date of his termination and did not get any
job despite efforts.
3. The management has contested the claim and had
filed detailed written statement alleging therein that the workman
himself absented from his duties after he was transferred from
Delhi to Manesar, Gurgaon Unit vide order dt. 29.9.2007 alongwith
other workers. It was also submitted that a large no. of workers
including the workman have already challenged the transfer order
vide ID No. 131/2007 which is pending before the Industrial
TribunalI.
It was further alleged that on 16.8.2007 at about 10 AM the
workman started shouting and instigating other employees to stop
work and he also switched off the lights and fans in the office and
after 10 minutes he alongwith other employees left the premises
without punching his attendance card. It was also alleged that the
management issued him a showcause notice dt. 17.8.2007 and
charge sheet dt. 30.8.2007 for his misconduct and that the
conciliation proceedings filed by the workman himself failed due to
his adamant behaviour. Other allegations made in the claim were
specifically and categorically denied.
LIR NO. 166/2011 Page 3 of 10
4. Workman did not file the rejoinder. On the basis of
the pleadings of the parties, following issues were framed on
12.7.2010:
1.Whether the statement of claim is not filed by the workman as per preliminary objection No. 1 of the management, and if so, what is its effect? OPW
2. Whether the workman has not joined his duties at the place of his transfer vide transfer order dated 29.9.07?
OPM
3. Whether the workman has absented himself from his duties without any justification? OPM
4. As per terms of reference.
5. Relief.
5. The workman led his evidence and examined himself as WW1. The management examined Shri Umesh Jha - Manager Personnel as MW1 and closed its evidence.
6. I have heard Shri IB Jha - Ld. AR for workman and Shri Ghanshyam Mishra - Ld. AR for the Management and have LIR NO. 166/2011 Page 4 of 10 carefully gone through the written arguments filed on behalf of the management. My issue wise findings are as under: ISSUE NO.1 :
7. The management took the preliminary objection that the statement of claim has not been signed by the workman and is not properly verified. It is a matter of record that the claim statement has been only signed by the AR for workman and the verification has not been signed by anyone. According to Order 6 Rule 14 CPC, the petition should be signed by the petitioner or by his authorized representative in case he is unable to sign . There is nothing on record to show that the workman was unable to sign the same. Similarly, under Order 6 Rule 15 CPC, verification has to be compulsorily signed by the petitioner or his authorized representative which has not been done in the present case and on this ground alone the claim should not have been entertained. Hence, this issue is decided in favour of the management and against the workman .
ISSUE No. 2 :
8. The onus to prove this issue was upon the LIR NO. 166/2011 Page 5 of 10 management. The management through MW1 proved the fact that on 29.9.2007 the services of the workman and other employees of the management's Delhi unit were transferred to Manesar, Gurgaon due to nonavailability of work orders at Delhi units. There had been no crossexamination of the workman on this aspect. In the crossexamination MW1 deposed that no separate transfer letter was issued to the workman because the entire work of company was shifted and a general notice was pasted on the notice board which he has proved as Ex. MW1/7 .
9. It is the case of the workman himself that his services were terminated by the management meaning thereby that he never responded to the transfer orders nor joined the duty at the transferred place. The management has also filed copy of the reference bearing No. F.24(1445)/07/Lab/511519 dated 07.12.2007 of the Office of the Labour Commissioner Ex.MW1/5 with reference as under :
Whether the transfer of S/Shri Tarkeshwar Singh S/o late Shri Babu Ram Singh and 418 others, as shown in Annexure A (27 pages) from Delhi units to 173174 Sector5, IMT, Manesar, Haryana , is legal and/or justified and if not, whether it amounts to lockout, and if so what relief the workmen are entitled, LIR NO. 166/2011 Page 6 of 10 including the wages for the lockout period?
10. The name of the present workman appears at Sr. No. 200 in the list of the workers at Annexure A . In the cross examination the workman denied having any knowledge about the pendency about the said claim before the Industrial Tribunal. On the other hand, the fact of this reference being pending before the Industrial Tribunal, deposed by MW1 has not been challenged in his crossexamination nor the said reference or the list of workers (Annexure A) was every questioned in the crossexamination of MW1 which means that the workman has admitted the said fact.
11. In Bal Kishan Vs. State (1976) 12 DLT 311 Delhi, it was held that where crossexamination is not directed against the positive material assertion affecting the opposite party, it would amount to the affected party accepting the truthfulness of that assertion unless there is some exceptional proof to the contrary.
12. The above discussion shows that the services of the workman were transferred but he failed to join his duties at the transferred place and as such this issue is decided in favour of the management and against the workman .
LIR NO. 166/2011 Page 7 of 10 ISSUE NO.3 :
13. The case of the management is that on 16.8.2007 the workman misconducted himself for which he was issued a showcause notice dt. 17.8.2007 Ex.MW1/3. The workman denied to have received the said showcause notice in the crossexamination . He also deposed that he had intimated the management about his new address in writing but corrected himself saying that he had not given in writing meaning thereby that he never informed the management about his new address nor has stated as to when he has changed his address. As per record, his address with the management is recorded as D62, Inderpuri, New Delhi whereas in the affidavit he has given his address as RZ19/343, Shivpuri, Gali No. 1, West Sagarpur, Delhi. Same address is mentioned in the copy of his passbook filed by him.
14. If the workman changes his address at any time during his employment, he is duty bound to inform the same in writing to the management and in case he fails to do so, any communication sent by the management at the address available with it shall be presumed to have been received by him.
LIR NO. 166/2011 Page 8 of 10
15. Reference can be made to the judgment in M/S Trina Engineering Co. Pvt. Ltd. Vs. Secretary (Labour) & others, 2006 LLR 51, wherein it was held that a worker working with employer has to give the address to the employer. Any letter addressed by the employer to him at the address given by the workman would be deemed to have been properly served and there was no need of producing the postman by the management.
16. Hence, it is deemed that the said showcause notice was duly served upon the workman . Similar is the position with the charge sheet. The workman did not replied to either of it. MW1 categorically deposed in his crossexamination as well that the workman failed to reply either to the notice or to the charge sheet and while denying that his services were terminated, asserted that he abandoned the job whereupon there was no further cross examination . This clearly shows that the workman himself abandoned the job and as such this issued is also decided in favour of the management and against the workman . ISSUE No. 4/Reference :
17. As observed herein above, the management has LIR NO. 166/2011 Page 9 of 10 successfully proved without any challenge from the workman that a reference is pending before the Industrial Tribunal challenging the transfer of 418 employees of the management including the workman from Delhi to Manesar. The workman cannot plead two facts together. On one hand, he is challenging the transfer order and on the other hand, through the present reference he is claiming illegal termination . It has already been held that the services of the workman were transferred and he was never terminated though a charge sheet was issued to him. Hence, it is held that the services of the workman were never terminated illegally and this issue is accordingly issued in favour of the management and against the workman .
ISSUE No. 5/Relief :
18. For the reasons recorded above, while deciding Issues No. 1 to 4, the workman is not entitled to any relief.
The reference is answered accordingly. Copy of award be sent for publication and case file be consigned to Record Room.
Announced in the open court
on 27th day of August 2014 (SANJAY SHARMA)
PRESIDING OFFICER LABOUR COURTXIX,
KARKARDOOMA COURTS, DELHI
LIR NO. 166/2011 Page 10 of 10