Delhi District Court
Labour Court No.Xx Fast Track Kkd. ... vs Unknown on 26 August, 2008
1 ID 733/2006
IN THE COURT OF SH. SUDESH KUMAR PRESIDING OFFICER
LABOUR COURT No.XX FAST TRACK KKD. COURTS DELHI
ID 733/2006 (Old No. 135/1988)
BETWEEN
THE MANAGEMENT OF
M/s. BAJAJ ENTERPRISES/VINOD METAL WORKS
A-97/6, Industrial Area, Wazirpur,
Delhi 110 052 ...MANAGEMENT
AND
WORKMEN JAVED, RANJIT SINGH, RAJESH KUMAR, RAJ
KUMAR (since deceased - through legal representative
- Raj Rani) & RAM KUMAR
c/o India Engg & General Mazdoor Union
E-127, Karampura,
New Delhi 110 015 ....WORKMEN
Date of receipt of reference May 1988
Date of hearing the final arguments 12.8.2008
Date of award 26.8.2008
A W A R D
Workmen Javed, Ranjit Singh, Rajesh Kumar, Raj Kumar &
Ram Kumar have raised an Industrial dispute against the management of
M/s. Bajaj Enterprises/Vinod Metal Works, for termination of their services
by the management and on being satisfied with regard to existence of an
Industrial Dispute between the workmen & the management the appropriate
Government vide order No.F.24 (75)/88-Lab/2919-24 dated 15.2.1988
referred the Industrial Dispute to the Court with the following terms of
reference:
2 ID 733/2006
Whether the services of S/Shri Javed, Jawahar, Ranjit Singh,
Rajesh Kumar, Kishore & Raj Kumar have been terminated
illegally and/or unjustifiably by the management, and if so, to
what relief are they entitled and what directions are necessary
in this respect?
Later on, reference was amended, vide order No. F.24 (75)/88-Lab/22506
dated 9.9.1988 and corrigendum was received vide which name of Ram
Kumar was added in the list of workmen and the terms of reference was
amended as under :
Whether the services of S/Shri Javed, Jawahar, Ranjit Singh,
Rajesh Kumar, Kishore, Raj Kumar & Ram Kumar have been
terminated illegally and/or unjustifiably by the management,
and if so, to what relief are they entitled and what directions
are necessary in this respect?
Workmen Javed, Ranjit Singh, Rajesh Kumar & Raj Kumar
filed their joint statement of claim stating therein that workman Javed had
been working with the management at the post of Helper for the last one
year prior to the date of his termination and his last drawn salary was
Rs.350/- per month; workman Ranjit Singh had been working with the
management at the post of Mistry for the last eight years prior to the date of
his termination and his last drawn salary was Rs.1,750/- per month;
workman Raj Kumar had been working with the management at the post of
Turner-man for the last three years prior to the date of his termination and
his last drawn salary was Rs.1,100/- per month; and workman Rajesh
3 ID 733/2006
Kumar had been working with the management at the post of Beading-man
for the last three years prior to the date of his termination and his last
drawn salary was Rs.650/- per month. The performance of the aforesaid
workmen was upto the mark and there was no complaint regarding the
behaviour and performance of the workmen. The workmen had been
performing their duties to the entire satisfaction of the management. The
management was not implementing certain legislations in favour of the
workman - for example - the management was not providing the annual
increment, dearness allowance, house rent, uniform, travelling allowance,
bonus and had not been issuing appointment letters, attendance cards and
leave book etc. The workmen along with other workmen convened a
General Body meeting on 20.5.1987 and passed unanimous resolution to
present Charter of demands to the management. The demands which were
embodied in the Charter of demands dated 20.5.1987 were as under :
i)the annual increment with effect from January 1987 @ 25%
ii)25% dearness allowance with effect from January 1987
iii)house rent allowance at the rate of Rs.200/- with effect from
January 1987
iv)Uniform - woollen & cotton with effect from January 1987
v)travelling allowance @ Rs.100/- per month with effect from
January 1987
vi)Tea allowance @ Rs.150/- per month with effect from
January 1987 or in lieu of that - tea for two times in a day.
vii)20% bonus with effect from the year 1981-82, 1982-83,
1983-84, 1984-85, 1985-86 & 1986-87
viii) all the employees be issued appointment letters, attendance
cards & leave book etc.
4 ID 733/2006
The workmen sent their Charter of demands to the management but the
management did not consider the just & genuine demands of the workmen.
The workmen were left with no other alternative except to resort to the
procedure established by law and the workmen raised an Industrial Dispute
before the Conciliation officer under section 12 of the Industrial Disputes
Act, 1947. Instead of implementing the just & genuine demands of the
workmen, the management adopted the anti-labour practice and resorted to
lock out with effect from 20.5.1987 and terminated the services of the
above said workmen. The termination of the workmen is illegal, unjust &
violative of provisions of section 25-F of the Industrial Disputes Act, 1947.
The workmen sent a demand notice to the management on 29.5.1987
demanding reinstatement in service alongwith full back wages but the
management did not consider the just & genuine demands of the workmen.
The dispute was referred to the Court by the appropriate Government. It
has been stated that the termination of the workmen is retrenchment and the
management has not complied with the provisions of section 25-F of the
Industrial Disputes Act, 1947, therefore the termination is void abinitio.
The workmen are unemployed and they have no source of income.
Accordingly it has been prayed that the management may be directed to
reinstate the workmen with continuity of service along with full back
wages.
5 ID 733/2006
Workmen Ram Kumar filed his separate statement of claim
stating therein that he was appointed by the management at the post of
Helper about one year ago and his last drawn salary wasRs.350/- per
month. The performance of the workman was upto the mark and there was
no complaint against the performance of the workman. The management
was not providing the legal benefits to the workmen to which they were
entitled. The details of the legal entitlements have already been given in the
statement of claim filed by other workmen. The workman along with other
workmen presented a charter of demands to the management on 20.5.1987
but the management did not consider just & proper demands of the
workmen and illegally resorted to lock out with effect from 20.5.1987
without any justification and terminated the services of the workmen
without following the procedure established by law. Demand notice was
sent to the management on 29.5.1987 but the management failed to
consider the legitimate demands of the workman. The present termination is
violative of section 25-F of the Industrial Disputes Act. The workman is not
gainfully employed. Accordingly it has been prayed that the management
may be directed to reinstate the workman with full back wages & continuity
of service.
The management contested the claim of the workmen and the
6 ID 733/2006
management M/s Bajaj Enterprises filed written statement to the statement
of claim filed by the workmen Javed & others stating therein that the
present reference order is in respect of 6 workmen and the two
managements. It is not clear from the reference as to which workman was
employed with which management, therefore, the identity of the parties is
not clear in the reference order and as such the same is invalid and void
abinitio. The management of Bajaj Enterprises has denied the relationship
of master-servant, employer-employee between Javed, Jawahar & Ranjit
and the management of Bajaj Enterprises and has stated that they were not
the employees of the answering management and were employed with M/s
Vinod Metal Industries which is a separate legal entity and was doing its
business independently. The workmen Jawahar & Kishore have not signed
the statement of claim, therefore, the claim in respect of these two workmen
may be rejected. The exact date of appointment of workmen Rajkumar,
Kishore & Rajesh Kumar was 1.6.1986, 1.10.1986 & 1.2.1986 respectively
and the last drawn salary of the above said workmen were Rs.1100/-,
Rs.489/- & Rs.625/- respectively per month. The workmen Rajesh Kumar
& Kishore absented from work with effect from 1.6.1987. They were issued
letters dated 6.7.1987 but the workmen Rajesh Kumar & Kishore did not
resume their work. The management issued them another letter dated
14.7.1987 informing that since they have not complied with the directions
7 ID 733/2006
given in the letter dated 6.7.1987 it will be deemed that they have resigned
from their services and their names will be removed from the attendance
register. These two workmen did not pay any heed to these letters. Under
these circumstances, they deserted their services. Workmen Raj Kumar
was charge sheeted vide charge sheet dated 1.6.1987 to which he did not
submit any reply. He was issued a Show cause notice dated 9.6.1987 but he
did not submit any reply to the show cause notice, therefore, the workman
was dismissed vide dismissal letter dated 6.7.1987. The management has
sought permission of the Court to prove these facts in the proceedings as
per provisions of section 11-A of the Industrial Disputes Act, 1947. It has
been denied that the management was not implementing certain statutory
requirements. It has been submitted that the management was paying all the
dues to which the workmen were entitled and it was abiding by all the
legislations, applicable to the establishment of the management. The
management has denied service of notice of demands. It has been denied
that there was any termination by the management except that of Sh.Raj
Kumar who was dismissed for the charges leveled against him, as such,
there was no occasion for observing the requirements of section 25-F of the
Industrial Disputes Act, 1947. The management has denied all other
averments made by the workmen in their statement of claim and has prayed
that the claim of the workmen may be rejected.
8 ID 733/2006
The management of M/s Vinod Metal Works filed separate
written statement stating that the present order of reference is in respect of
6 workmen and the two managements. It is not clear from the reference as
to which workman was employed with which management, therefore, the
identity of the parties is not clear in the reference order and as such the
same is invalid and void abinitio. The management of M/s Vinod Metal
Works has denied the relationship of master-servant, employer-employee
between Rajesh Kumar, Kishore & Raj Kumar and the management of
Vinod Metal Works and has stated that they were not the employees of the
answering management and were employed with M/s Bajaj Enterprises
which is a separate legal entity and was doing its business independently.
The workmen Jawahar & Kishore have not signed the statement of claim,
therefore, the claim in respect of these two workmen may be rejected. Sh.
Ranjit Singh is not a workman as defined under section 2(s) of the
Industrial Disputes Act, as he was employed as Assistant Foreman and his
last drawn salary was Rs.1725/- per month. It has been submitted that
Javed Jawahar & Ranjit Singh were employed with the answering
management since 1.2.1987, 1.12.1984 & 1.7.1983 respectively and their
last drawn salary were Rs.489/- Rs.489/- & Rs.1725/- respectively per
month. The management though had no complaint against the concerned
workmen during the period of their employment but at the end of their
9 ID 733/2006
employment, they had absented from their work and Sh.Ranjit Singh was
charge sheeted vide charge sheet dated 1.6.1987. He was also issued Show
cause notice against dismissal. He neither replied to the charge sheet nor
the show cause notice, therefore, he was dismissed vide dismissal letter
dated 6.4.1987. Services of Javed & Jawahar were terminated on closure of
the establishment of the management on 3.7.1987. They were offered &
given the benefits as per provisions of section 25-F of the Industrial
Disputes Act, therefore, termination of these two workmen on account of
closure is justified,proper & legal. The management was complying with
all the legislations applicable to the establishment of the management. No
demands were ever raised by the workmen. The management did not
declare any lock out. On the contrary, it has been closed with effect from
3.7.1987 due to which services of Javed & Jawahar were terminated and the
services of Ranjit Singh were dismissed on account of charges leveled
against him vide charge sheet dated 1.6.1987. The management has sought
leave of the Court to prove the facts on merits, as per section 11-A of the
Industrial Disputes Act. There is no retrenchment except the workers whose
services were dispensed with on account of closure of the firm. It has been
denied that the workmen are unemployed. The management has denied all
other averments made by the workmen in their statement of claim and has
prayed that the claim of the workmen may be rejected.
10 ID 733/2006
Management of M/s Vinod Metal Works filed separate written
statement to the claim of workmen Ram Kumar stating therein that in the
present matter, reference order dated 15./7.1988 was made to this Court in
which name of workman Ram Kumar was not mentioned. The management
filed an application that since name of the workman does not appear in the
terms of reference, the claim filed by workman Ram Kumar may be
rejected. Thereafter. Govt of NCT of Delhi, made a corrigendum in the
dispute and the answering management had been directed to file written
statement to the statement of claim filed by workman Ram Kumar. The
corrigendum issued by the Govt of NCT of Delhi is illegal, and has been
made against the provisions of law and in utter disregard to the provision s
of section 10(1)(c) & 12(5) of the Industrial Disputes Act, 1947. The
corrigendum has been made without jurisdiction. It is not a corrigendum
but complete fresh reference. The workman Ram Kumar has not put in 240
days continuous service with the management as he was appointed on
10.4.1987 and his services were terminated on 3.4.1987. The management
of M/s Bajaj Enterprises has no relationship of master-servant & employer
-employee between itself and the workman Ram Kumar. The statement of
claim has not been verified & signed by the workman Ram Kumar. The
workman Ram Kumar was appointed with the management of M/s Vinod
Metal works with effect from 10.4.1987 as a Helper and his salary was
11 ID 733/2006
Rs.415/- per month. An appointment letter was issued to him to the effect
and his signatures were obtained on the copy in token of acceptance. It
has been submitted that the written statement filed by the management to
the claim of workman Javed & others, may be read as part of this written
statement. The management has stated that no Charter of demands was
received by the management. On the other hand, the management found it
not economical to run its manufacturing unit and thus closed it with effect
from 3.9.1987. The concerned workman was given notice of the same on
the same date i.e. 3.9.1987. Copies of the same were sent to Labour
Inspector & Chief Inspector of Factories. The amount found due to the
claimant was shown in the closure notice and it was Rs.970/- and the
workman was offered the same in cash on the same date but he refused to
take the same and subsequently amount was sent by money order. It has
been denied that the management terminated the services of the workmen
without following the prescribed procedure of law. The action of the
management is proper, legal & in accordance with the provisions of
different sections relating to closure of the establishment. The
management has denied all other averments made by the workman in his
statement of claim and has prayed that the claim of the workman may be
rejected.
The workmen filed separate rejoinder to the written statements of
12 ID 733/2006
both the managements and controverted the averments made in the written
statement and reiterated their stand
From the pleadings of the parties the following issues were framed
1.Whether Ranjit is workman as defined in section 2(s) of ID Act?
2. Whether Bajaj Enterprises & Vinod Metal Works are one entity? If not, its effect?
3. As per terms of reference.
Vide order dated 4.3.1997, the following additional issue was framed :
A. Whether there is relationship of employer & employee between Raj Kumar & the management of M/s Vinod Metal Works?
Workmen, in order to prove their case, filed evidence of workman Raj Kumar by way of affidavit Ex.WW-1/1 and examined him as WW-1, filed affidavit of Ranjit Singh Ex.WW-2/A & examined him as WW-2, filed affidavit of RamKumar Ex.WW-3/A and examined him as WW-3, and filed affidavit of Rajesh Kumar Ex.WW-4/A and examined him as WW-4 and therrafter workmen evidence was closed. On the other hand, the management, in order to prove its stand, filed affidavit of Sh.Kishan Lal-partner of M/s Bajaj Enterprises, & examined him as MW-1 and filed affidavit of Sh.Ashok Bajaj Ex.MW-2/A & examined him as MW-2 and relied upon the documents Ex.MW-1/M-1 to Ex.MW-1/M-5, and 13 ID 733/2006 thereafter the management evidence was closed. Both the management witnesses MW-1 & MW-2 have not stood the complete test of cross examination, as such, their testimony can not be read in evidence. Accordingly there is no admissible evidence on record on behalf of the management.
During the pendency of the trial, workman Raj Kumar expired and his legal representatives were brought on record.
Final arguments heard, file perused. Issue-wise discussion is as under ISSUE No. 1
Sh.Ranjit Singh, while appearing as WW-2, during his cross examination dated 3.12.2002 has admitted that his last drawn wages were Rs.1750/-; he was working with the management as Foreman; nearly 17 workers used to work under him. He has further stated that he used to direct the workers how to work in the factory. Some of the workers were Mistry and some were assistants. He has further admitted it as correct that he used to inspect the work of all 17 workers on the closing of the work of the day which was given to them in the morning. All this suggests that the claimant Ranjit Singh had been supervising the work of 17 persons working under him. He h ad been issuing directions to the workers - how to 14 ID 733/2006 work,. This clearly suggests that the work of the claimant Ranjit Singh was of supervisory nature and he was working as a Supervisor/Foreman. Admittedly, his last drawn salary was Rs.1750/- per month. As such, the work of claimant Rajnit Singh was of supervisory nature and his last drawn salary was Rs.1750/- per month, accordingly, claimant Ranjit Singh is not a workman as defined under section2(s) of the Industrial Disputes Act, 1947. As such, his claim does not fall within the ambit of Industrial Disputes Act, 1947. Issue No.1 is accordingly decided in favour of the management and against the workman Ranjit Singh. I S S U E No.2 Both the managements in their written statements have specifically stated that Bajaj Enterprise & Vinod Metal Works are two different entities. Even from the cross examination of the workmen, it transpires that M/s Bajaj Enterprises & M/s Vinod Metal Works are different entities as WW-2 Ranjit Singh during his cross examination, firstly stated that he was working with M/s Vinod Metal Works and again said that he was working with M/s Bajaj Enterprises. This clearly suggests that M/s Vinod Metal Works & M/s Bajaj Enterprises are two different entities. Issue N,.2 is accordingly decided in favour of the management and against the workmen.15 ID 733/2006
ADDITIONAL ISSUE Workman Rajkumar, during his cross examination, has admitted it as correct that he was working with M/s Bajaj Enterprises and M/s Bajaj Enterprises has already admitted Raj Kumar as its employee. As such, there is no relationship of employer & employee between the claimant Raj Kumar & the management of M/s Vinod Metal Works. Additional issue is accordingly decided in favour of the management M/s Vinod Metal Works.
I S S U E No. 3 AS PER TERMS OF REFERNECE The workmen Jawahar & Kishore have not filed their statement of claim and as such there is no claim on behalf of workmen Jawahar & Kishore. Workman Javed has filed his affidavit but he has not appeared in the witness box and as such he has failed to establish his case. Accordingly, workmen Jawahar, Kishore & Javed are not entitled to any relief.
So far claimant Ranjit Singh is concerned, while adjudicating upon issue No.1, it has already been held that claimant Ranjit Singh is not a workman as defined under section 2(s) of the Industrial Disputes Act, 1947. 16 ID 733/2006 As such the claim of claimant Ranjit Singh does not fall within the ambit of Industrial Disputes Act, 1947. As such, claimant Ranjit Singh is not entitled to any relief.
So far workman Rajesh Kumar is concerned, the stand taken by the management is that Rajesh Kumar absented from work with effect from 1.6.1987. Though there is no admissible evidence on record on behalf of the management but the workman Rajesh Kumar, while appearing as WW-
4, during his cross examination has deposed that he was getting Rs.650/- in the year 1984 at the time of leaving his job, even he was getting Rs.650/-. He has further admitted it as correct that he did not visit the management after 1.6.1987. This clearly suggests that services of workman Rajesh Kumar were not terminated by the management but he himself absented from the job with effect from 1.6.1987. Accordingly the workman Rajesh Kumar is not entitled to any relief.
So far workman Ram Kumar is concerned, the stand taken by the management is that he was appointed on 10.4.1987 and his services were terminated on 3.7.1987, as such he has not completed 240 days service in a year, accordingly he is not entitled to any relief. Whereas as per the workman, he worked for about one year No doubt, it is for the workman to 17 ID 733/2006 prove that he has completed 240 days continuous service in a year preceding the date of his termination but in the present case, an application was filed by the workman for direction to the management M/s Bajaj Enterprises to produce certain documents. Vide order dated 12.2.2008, the management of Bajaj Enterprises was directed to produce the attendance register, payment of wages register, bonus register, ESI register and leave register from the year 1980 to 1988 but the management did not produce the record despite several opportunities. Accordingly an adverse inference is drawn against the management and the stand taken by the management that the workman Ram Kumar has not completed 240 days of continuous service in a year is rejected. The workman has claimed that he has worked with the management for about one year,. Since no notice, no pay in lieu of notice or any other service compensation was given to the workman Ram Kumar, at the time of termination of his services, the termination of services of the workman by the management is illegal, unjustified & is violative of the provisions of section 25-F of the Industrial Disputes Act, 1947. Though the termination of the workman Ram Kumar has been held illegal, unjustified and violative of the provisions of section 25-F of the Industrial Disputes Act but still I am of the opinion that this is not a fit case for reinstatement with back wages and the ends of justice will be served if a lump sum compensation is awarded to the workman Ram Kumar instead of 18 ID 733/2006 reinstatement & back wages. Accordingly, keeping in view the nature of job of the workman, his short tenure of service with the management & his last drawn salary, a lump sum compensation of Rs.15,000/- (Rupees fifteen thousand only) is awarded to the workman Ram Kumar. Workman Ram Kumar is entitled to recover the amount of above said compensation from the management of M/s Vinod Metal Works.
So far workman Raj Kumar is concerned, it has been argued on behalf of the management that during his cross examination, the workman himself has admitted that he has not worked anywhere after leaving the job with the said management and he has further deposed that no settlement could arrive at during the conciliation proceedings as the management was not paying them the wages from the period they left the job, as such, the workman Raj Kumar has left the job himself. On the other hand, it has been argued on behalf of the workman that workman has not left the job but his services were terminated by the management. The management of M/s Bajaj Enterprises, in its written statement has stated that the workman Raj Kumar was charge sheeted vide charge sheet dated 1.6.1987 to which he did not submit any reply. He was issued a Show cause notice against the dismissal from service. The show cause notice was dated 9.6.1987. He did not submit any reply to the show cause notice, therefore, 19 ID 733/2006 the workman was dismissed vide letter dated 6.7.1987. This is clear admission on the part of the management that workman Raj Kumar was dismissed from service by the management and the management can not withdraw its own admission. The management has failed to prove the service of charge sheet upon the workman Raj Kumar. The management has not conducted any domestic enquiry against the workman Raj Kumar. The management has failed to prove the charges against the workman Raj Kumar in the Court. Accordingly the termination of the workman Raj Kumar by the management of M/s Bajaj Enterprises is illegal & unjustified.
Since the workman Raj Kumar has expired, there is no question of reinstatement with back wages and the ends of justice will be served, if a lump sum compensation is awarded to the workman Raj Kumar. Accordingly, keeping in view the facts & circumstances of the case, tenure of service of the workman with the management & his last drawn salary, a lump sum compensation of Rs.25,000/- (Rupees twenty five thousand only) is awarded to the workman Raj Kumar. The legal representatives of workman Raj Kumar are entitled to recover the said amount of compensation i.e. Rs.25,000/- from the management of M/s Bajaj Enterprises.
The claim of the workmen Javed, Jawahar, Ranjit Singh, Rajesh 20 ID 733/2006 Kumar & Kishore is rejected.
Award is passed accordingly and the reference is answered accordingly. Copies of the award be sent to the appropriate Government for publication. File be consigned to the record room after necessary compliance.
Announced in the open court
on this 26th day of August 2008 (SUDESH KUMAR)
Presiding Officer - Labour Court No.XX
(Fast Track) Karkardooma Courts Delhi