Delhi District Court
Sh. Rama Nand Sharma vs M/S. Aggarwal & Co on 9 December, 2015
IN THE COURT OF SHRI UMED SINGH GREWAL
POLCXVII ROOM NO. 22 :KKD COURTS: DELHI
DID No.33/07
Unique ID No.02402C0139352007
Sh. Rama Nand Sharma,
251/3B/9, 1st Floor, Gali No. 6,
Bholanath Nagar, Shahdara,
Delhi32.
..............Workman
Versus
M/s. Aggarwal & Co.
18/4624, Ansari Road, Daryaganj,
New Delhi2.
............. Management
DATE OF INSTITUTION : 20.02.2007.
DATE ON WHICH AWARD RESERVED : 19.11.2015.
DATE ON WHICH AWARD PASSED : 09.12.2015.
A W A R D :
1.This is a direct industrial dispute filed by the workman under Section 10(4A) of the Industrial Disputes Act, 1947 (hereinafter referred as "the Act") for reinstatement with continuity DID No. 33/07. 1/14 of service and full back wages.
2. Claimant's case is that he joined the management in 1987 in Accounts Department at the last drawn salary of Rs. 10,000/ per month. The management deprived him of legal facilities like appointment letter, overtime wages and medical reimbursement etc. He worked to the utter satisfaction of the management diligently and honestly but despite it, his services were terminated by the management on false allegations vide termination letter dated 15.11.2006 without any notice, retrenchment compensation, chargesheet and domestic enquiry. He had sent a demand notice to the management on 10.01.2007 against illegal termination but he was not reinstated. He is claiming himself to be unemployed since the date of termination of his service.
3. Written statement is to the effect that claimant was not in the regular cader of the management and that he was a part time worker who used to work with the management as and when there was work @ Rs. 3,600/ per month. The claimant was not paying DID No. 33/07. 2/14 proper attention to his work since May, 2006 and that he was verbally requested to mend his ways. The claimant preferred to stay away from his work when he was most required when the accounts were to be finalized for the preparation of balance sheets by the end of financial year. He was abstaining from work in order to avoid outstanding liability of repayment of loan of Rs. 70,000/ advanced to him in July, 2005. The management had sent letters dated 15.12.2006 and 01.12.2006 for completion of work but he did not pay any heed. He used to work with the management on part time basis on selective days of months. He did not work for 240 days in any year. Due to his not doing work for the time when it was most required, the management has lost faith in him.
4. Following issues were framed on 10.07.2007 :
(i) Whether the claim of the workman is bad on account of not issuing demand notice to the management as stated in para A of PO of W.S., if so its effect? OPM.
(ii) Whether there existed relationship of employer and employee between the parties, if so, its effect? OPW.
(iii) If answer to issue no. 2 above is in affirmative, whether DID No. 33/07. 3/14 the services of the workman have been terminated illegally and/or unjustifiably by the management, if so, its effect? OPW.
(iv) Relief.
5. In order to prove the case, claimant tendered his affidavit in evidence as Ex.WW1/A mentioning all the facts stated in statement of claim. He relied upon documents Ex.WW1/1 to Ex.WW1/6. Ex.WW1/1 is certificate issued by management. Income tax return of the claimant is Ex.WW1/2. The correspondence with a private company, form 27A showing the name of the employer, 11 insurance premium receipts, group insurance schedule containing two pages and settlement of mediclaim correspondence along with mediclaim insurance policy are collectively Ex.WW1/3. The mobile telephone bills and other correspondences are Ex.WW1/4. Receipts of credit card are Ex.WW1/5. Demand notice dated 10.01.2007 is mark Wa and counter receipt is Ex.WW1/6.
6. The management examined its manager Sh. Chander DID No. 33/07. 4/14 Narain Malhotra as MW1 who deposed in his affidavit Ex.MW1/A that no order of termination of the claimant was passed by the management. The claimant was a self employed person carrying on the vacation of maintenance of accounts and getting balance sheets finalized from chartered accountants. He was never appointed as full time employee of the management. He used to work as per his available time at the last drawn charges of Rs. 3,600/ per month. There was no fixed working hour for him. He did not work with the management from October, 2006 to April, 2007 and preferred to remain away though he was most urgently required towards closing of the financial year. Due to his absence, the pending work was got done through another person. The claimant was not attending to the work because he had to repay a loan of Rs. 70,000/ which he had taken from the management in July, 2005 for which the management had to file a recovery suit in the Civil Court. In that suit, a decree was passed against him on 21.05.2009. The management came to know that the claimant had taken a loan of Rs. 2,50,483/ from HSBS Bank also. The court decree is Ex.MW1/1 and notice regarding loan of HSBS Bank is Ex.MW1/3. He further deposed that the management had written letters dated 15.11.2006 and 01.12.2006 Ex. MW1/4 and DID No. 33/07. 5/14 Ex.MW1/5 to the claimant to join back the services but he stayed away from the job because he did not want to pay the loan of Rs. 70,000/.
ISSUE NO. 1.
7. Ld. ARM argued that the claimant had not issued any demand notice to the management. In the absence of any demand notice, there can be no demand and there arises no question of its denial. If there was no demand and refusal, there can be no industrial dispute. In this regard, he relied upon Nagender Sharma Vs. Rajasthan Timber Corporation ILR (2006) I Delhi 1030. On the other hand, Ld. ARW submitted that demand notice mark Wa was sent to the management vide courier receipt Ex.WW1/6.
Copy of demand notice dated 10.01.2007 is mark Wa. It is mentioned in the demand notice that management had sent him a letter dated 15.11.2006 whereby he was removed from service. In the end, it is mentioned that his termination was illegal and he requested the management to reinstate him with immediate effect on receipt of that notice. The said notice was sent to the DID No. 33/07. 6/14 management vide courier receipt Ex.WW1/6 dated 10.01.2007. So, demand notice and courier receipt vide which it was sent to the management, are on the file. There two documents raising presumption in favour of the claimant that he had sent demand notice to the management which management might have received in 24 days of its posting on 10.01.2007 vide courier receipt Ex.WW1/6. So, it is held that demand notice was sent to the management. Despite demand notice, the management did not reinstate him. So there is demand as well as refusal. Existence of these two facts establishes that there was an industrial dispute between the parties. This issue is decided in favour of claimant and against management.
Issue No. 2
8. Ld. ARM argued that there was no relationship of employer and employee between claimant and management because the claimant was merely a part time worker who used to do work for 23 other firms also. On the other hand, Ld. ARM submitted that even a part time worker is a workman under the provisions of Section 2(s) of the I.D. Act, 1947. Also there are DID No. 33/07. 7/14 documents on the file which establish that claimant was not a part time worker but full time worker of the management.
Ex.WW1/1 dated 18.11.1995 is a certificate issued on behalf of management in favour of claimant mentioning that claimant was working with it as a Senior Accountant from March, 1987 to till date i.e. 18.11.1995. It is not mentioned in that letter that claimant was working as a part time employee. Income Tax return is Ex.WW1/2. In that return, the address of the claimant is mentioned as "Rama Nand Sharma, C/o Aggarwal Service, 4624/18, Ansari Road, New Delhi06". The claimant had taken mediclaim policy and settled mediclaim with the company vide Ex.WW1/3 in which his address is mentioned as "Ramanand Sharma, C/o Aggarwal & Company, 4624/18, Ansari Road, Darya Gang, Delhi02". To the same effect are form no. 27A, 11 insurance premium receipts, group insurance schedule and mediclaim insurance policy which are collectively Ex.WW1/3. The claimant had taken mobile phone connection on the same address vide bills Ex.WW1/4. He had got prepared two credit cards Ex.WW1/5 collectively on the same address. If the claimant was a part time employee, he would not have got prepared so many documents on the address of only one employer. He might have DID No. 33/07. 8/14 used address of other employers also. It is pertinent to mention that it has been admitted by claimant in crossexamination that he was working for 23 other firms but those firms belonged to the management. There is no otherwise evidence led by management. On the strength of these documents, it is held that claimant was not a part time employee and rather he was a full time employee of the management. As per Managing Director & Anr. Vs. Faily Ram 1996 LLR 645 Rajasthan, even a part time employee is a workman u/s 2(s) of the I.D. Act.
Issue No. 3:
9. Ld. ARW argued that services of the claimant were terminated by the management vide termination letter Ex.MW1 dated 15.11.2006 unreasonably without notice and retrenchment compensation. On the other hand, Ld. ARM argued that service of the claimant was never terminated by the management. The admitted letter Ex.MW1 was sent to the claimant directing him to hand over proper charge of record and registers to the nominated representative of the management in which it was mentioned that the claimant was absenting from job for last two months. DID No. 33/07. 9/14
10. Letter dated 15.11.2006 Ex.MW1 is admitted document of the both parties. It is mentioned in that notice that when audited balance sheet was due to be submitted by 31.02.2006, the claimant disappeared and stopped attending to his work and was absenting for last two months without intimation of any kind to the management. Due to his absence, the management hired account staff from open market. It is mentioned in para no. 2 of the letter that the claimant had left the work voluntarily. He was advised to attend the office of the management to hand over proper charge of record and register. He was further directed to return a sum of Rs. 70,000/ paid to him as loan by management vide cheque no. 111829 dated 20.07.2005. These contents of Ex.MW1, by no stretch of imagination, amount to termination letter. In examinationinchief, version of the claimant is that his services were terminated vide letter dated 15.11.2006 but in cross examination, he deposed that he did not have any document to show that his service was terminated by the management. He volunteered that the management had sent him a letter which he had not placed on file. So, version of the claimant in cross DID No. 33/07. 10/14 examination is that letter 15.11.2006 was not the termination letter. To the same effect is the case of the management. So, the claimant has failed to prove that his service was terminated by the management. On this score, case of the management is well covered by (i) Saroj Ramesh Shah Vs. Balakrishna Pen Pvt. Ltd. & Ors. W.P. No. 1135 of 1990, decided by Bombay High Court on 05.07.1994 (ii) Sh. Chand Singh Vs. Sigma Industries Corporation W.P. (C) No,. 21076/2005 decided by Delhi High Court on 05.12.2012
11. MW1 deposed that claimant had started absenting from work when he was most needed as accounts were to be finalized for filing of ITRs before 31.10.2006 for the quarter ending on 31.10.2006. The letter Ex.MW1 was sent to him to hand over the charge to the nominated representative of the management but he did not turn up. Thereafter, management sent him another letter dated 01.12.2006 Ex.WW1/M2 to resume duty but he failed.
Claimant's case is that his services were terminated on 15.11.2006. Statement of account Ex.WW1/M3 vide which he was paid salary of Rs. 3,600/ per month by way of cheque, shows that DID No. 33/07. 11/14 salary was paid to him regularly from December, 2005 to September, 2006. No salary was paid to him from October, 2006 onwards because he was absent. The claimant did not explain why he did not approach the management after receipt of letter Ex.MW1. He was given another opportunity vide letter Ex.WW1/M2 dated 01.12.2006 to resume duty. He denied having received that letter. As per postal receipt, the letter was dispatched to him on 02.12.2006 on the same address on which letter Ex.MW1 was dispatched. It is pertinent to mention that the same address is mentioned on memo of parties also It means that letter Ex.WW1/M2 was correctly addressed. It might have reached to the claimant within 24 days. He did not explain why he did not approach the management for resumption of duty after receipt of letter Ex.WW1/M2. Reason of his not joining the duty has been explained by MW1 that the claimant had taken a loan of Rs. 70,000/ from the management which he did not want to return and hence he left the job voluntarily. In this regard, version of the management is fully corroborated by order dated 21.05.2009 passed by the court of Sh. Naresh Kumar Malhotra, thethen Administrative Civil Judge, KKD vide which an application of the management u/o 12 rule 6 CPC was allowed against the claimant DID No. 33/07. 12/14 and a decree of Rs. 70,000/ was passed in favour of management and against claimant with interest @ 10% per annum from 20.07.2005 till realization. The management did not take his absence as misconduct and hence did not conduct domestic enquiry against him as per (i) Diamond Toys Co. (P) Ltd. Vs. Toofani Ram and Anr. WP(C) No. 4501/04, decided by Delhi High Court on 07.02.2007 (ii) Laxmi Kant Vs. POIT Gurgaon & Anr. C.W.P. No. 2895/1998, decided by the High Court of Punjab & Haryana on 02.03.1998.
12. In view of above discussion, the management has not only proved the deliberate absence of the claimant but also the reason of such absence. This issue is decided in favour of management and against claimant by holding that it is case of absence and not of termination of service.
Issue No. 4.
13. Consequent to decision on issue No. 3, It is held that claimant is not entitled to any relief. statement of claim is dismissed. Award is passed accordingly. Parties to bear their own DID No. 33/07. 13/14 costs.
14. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication. File be consigned to Record Room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 09.12.2015. POLCXVII/KKD, DELHI. DID No. 33/07. 14/14