Delhi District Court
Sh. P. Wilson vs M/S Baron International Ltd on 4 April, 2009
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IN THE COURT OF SH. DAYA PRAKASH
PRESIDING OFFICER LABOUR COURT NO. XVI
KARKARDOOMA COURTS : DELHI
ID NO. 473/06
Sh. P. Wilson
S/o Sh. C.G Papdhan
C/o Rashtriya Rajdhani Shramik Sangh
T-78, Milan Market
Shivaji Marg
New Delhi. ...... Workman
VERSUS
M/s Baron International Ltd.
801/807, Tolstoy House
Tolstoy Marg, C.P
New Delhi. ...... Management
Date of Institution of the Case : 7.01.04
Date on which the judgment has been reserved : 19.03.09
Date of delivery of judgment : 4.04.09
AWARD
1. The National Capital Territory of Delhi, through its
Secretary (Labour) vide reference no. F-
24(4275)/2002/Lab./4840-44 dated 18.06.03 referred the dispute
for adjudication between the Management M/s Baron
International Ltd. and its workman Sh. P. Wilson in the
following terms of reference:
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"Whether the services of Sh. P. Wilson S/o
Sh. C.G Papdhan have been terminated illegally
and/or unjustifiably by the management under
the garb of transfer out of Delhi and if so, to what
relief is he entitled and what directions are
necessary in this respect?"
2. As per claim, applicant had been working with the said
management permanently since 1.09.87 as Technician and was
drawing his last drawn salary of Rs. 6500/- plus Rs. 2000/- as
conveyance allowance. During the course of his employment,
he discharged his duties very honestly and to the entire
satisfaction of the management and had never given any chance
of complaint to the management. Workman was not being paid
earned wages for November and December, 2001. On
demanding the same verbally, management got annoyed and
passed an order of transfer of workman out of Delhi on 15.01.02.
On the complaint to Astt. Labour Commissioner on 16.01.02,
Sh. R. K Sharma, Astt. Labour Commissioner upon conciliation
between the parties, made earned wages for the month of
November and December 2001 procured to workman on
25.02.02 along with other workmen and workman along with
other workmen were taken back on services on 19.02.02.
Management had again ordered for transfer on 15.03.02. It is
further stated that management had not paid dues of earned
wages of January, February, 2002, Bonus and conveyance
allowance. On verbal complaint, he was ordered to transfer.
Workman registered a complaint in this regard to Asst. Labour
Commissioner on 13.03.02. On this Sh. R.K Sharma, Asst.
Labour Commissioner issued a show cause notice to which
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management did not reply. It is further stated that workman sent
a demand notice dated 18.06.02 vide registered AD and UPC.
It is further stated that workman was transferred on 15.03.02 to
Vishakhapattnam (A.P) 212, IInd floor, Hotel Park Lane Pvt. Ltd.
Sarojini Devi Road, Sikandrabad, A.P but conveyance allowance
was not mentioned. Workman was not taken on job on 15.03.02
and made him unemployed.
3. Notice of claim was sent to management. Management
filed its reply wherein it is stated that management had never
terminated the services of the workman, it is submitted that the
workman was merely transferred from Delhi to
Vishakhapattanam due to exigencies of workman and as a part
of restructuring of the organization. It is further submitted that
the workman instead of joining his duties at Vishakhapattanam
preferred to file this present claim. It is further submitted that
there was major restructuring in the management, the services of
many employees were transferred from one place to another. It
is further submitted that the right to transfer the employees are
within the powers of the management and is a managerial right
of the management company. It is further submitted that the
workman has adopted this method to put pressure on the
management to retain himself at the place of his choice. It is
further stated that the workman himself did not report for duty at
the transferred place as such he is a victim of his misdeeds. As
the workman did not report for duty at the transferred place
he is deemed to have abandoned his services with the
management company. The workman in such circumstance is
not entitled to any back wages or any other relief as claimed. It
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is further submitted that the workman is not entitled to raise the
present Industrial Dispute as he is not a workman as covered
under the provisions of Section 2 (s) of ID Act as he was working
as a supervisor quality control technician with the management.
In reply on merits, it is denied that the workman was
working as a Technician with the management since 1.09.87 on
a monthly salary of Rs. 6500/- plus conveyance of Rs. 2000/-. It
is submitted that the workman was working as as supervisor
quality control technician with the management. It is denied that
the transfer orders dated 15.01.02 were wrong and illegal as
alleged. It is submitted that the alleged transfer orders were
issued on 2.12.01 and not on 15.01.02. It is further denied that
the management was not giving the salary of November and
December, 2001 to its workmen. It is further submitted that as
the management did not terminated the services of the workman
as such there was no question of taking the workman back on
duty. It is submitted that the workman themselves reported for
duty on 19.02.02 at Delhi office of the management. It is
submitted that the transfer orders dated 15.03.02 were in
continuation of the process of restructuring of the organization
and the earlier transfers made on 2.12.01. It is denied that the
management did not give any salary for the month of January,
February, 2002, bonus, conveyance allowance etc. It is further
submitted that the as the workman was transferred to the other
station, he would have definitely got all the applicable allowance
at the transferred station as was also intimated to him vide his
transfer letter dated 15.03.02. It is further submitted that as the
workman was transferred out of station, he was not entitled to
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get the salary from the Delhi region. It is denied that the
management forced the workman into unemployment by ceasing
to give work to him. It is denied that the management received
any notice dated 18.06.02.
4. Subsequently, Rejoinder to the W.S. of the management
was filed wherein the workman has denied the allegations made
in the WS and reiterated the averments contained in the claim.
5. After completion of pleadings, following issues were
framed on 4.09.04 :
1. Whether the services of Sh. P. Wilson S/o Sh.
C.G Papdhan have been terminated illegally and/or
unjustifiably by the management under the gab of transfer
out of Delhi and if so, to what relief is he entitled and what
directions are necessary in this respect?
6. Parties led their evidence.
On behalf of workman, Workman Sh. P. Wilson examined
himself.
On behalf of management, Sh. Deepak Tripathi deposed
as MW 1.
7. WW 1 in evidence by way of affidavit supported the
averments made in the claim and got exhibited copy of transfer
letter Ex. WW 1/1, objection letter relating to transfer Ex. WW
1/2, AD and acknowledgment receipt Ex. WW 1/3 and 4
respectively, notice Ex. WW 1/5, copy of complaint Ex. WW 1/6,
copy of letter to Astt. Labour Commissioner Ex. WW 1/7, copy of
notice Ex. WW 1/8, copy of transfer letter dated 15.03.02 Ex.
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WW 1/9, reply to transfer letter Ex. WW 1/10, AD and
acknowledgment Ex. WW 1/11 and 12 respectively, complaint
dated 16.04.02 Ex. WW 1/13, copy of letter through union Ex.
WW 1/14, copy of letter to Astt. Labour Commissioner Ex. WW
1/15, copy of show cause notice Ex. WW 1/16, copy of letter
through registered AD and UPC Ex. WW 1/17, copy of receipt
and UPC Ex. WW 1/18 and 1/19 respectively, copy of letter
dated 26.04.02 Ex. WW 1/20, copy of letter of objection to
transfer Ex. WW 1/21, copy of receipt dated 23.03.02 Ex. WW
1/22.
In cross examination of WW 1, he deposed that he did not
inform the management regarding becoming of member of the
union. He suggested it wrong that he joined the management
as Supervisor Quality Control. He further suggested it wrong that
his job was to supervise the service engineer. He admitted that
he did not join on 1.01.02 at Hubli because transfer letter
was given to him on 15.01.02. He suggested it wrong that he
was given transfer letter in the month of December itself. He
did not join at Hubli because no salary or conveyance
provided to him by the management. He further admitted that
he approached the Labour Commissioner in this respect and did
not approach to management. He further admitted that in the
appointment letter there is a clause that his job is
transferable through out the India. He suggested it wrong
that he did not work in the month of January and February,
2002. He received the salary for the month of November and
December, 2001 on 25.02.02. He further suggested it wrong that
he was given second transfer order to join at Vishakhapattanam
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and he did not join there. He further suggested it wrong that he
did not complete 240 days of working with the management. He
further suggested it wrong that his transfer order was passed in
due course of employment and in terms of employment. He
admitted that there was neither postal stamping nor the company
stamp on the AD card.
8. MW 1 Sh. Deepak Tripathi in examination in chief
supported the averments mentioned in the WS and got exhibited
copy of authority letter and his previous I-card Ex. MW 1/1 and 2
respectively.
In cross examination of MW 1, he deposed that he was
not working in Barron International. He had filed affidavit as
previously he was working in Barron International. Lastly he
worked till 2003. He deposed that after 2003 Barron
International was not working. He deposed that he could not
say whether Barron Telecommunication India Ltd. is part of
Barron International. He did not know the date of transfer
however the workman was transferred to Andhra Pradesh
and Hubli (W.B). He had no document to prove that the
workman was transferred to Andhra Pradesh or Hubli. He
further deposed that the company has right to transfer anywhere
as per appointment letter and he had no document to prove that
fact. He was sent authorised letter through Mr. Subash Chand
Gupta. He further stated that Mr. Gupta was working in the
company as Regional Manager. He did not remember for how
much period he remained Regional Manager. WS was signed by
Mr. Kabir Mulchandani. He did not know the address of branch
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office at Hubli. He admitted that Ex. WW 1/2 did not give the
address of Hubli to the worker for joining. The transfer order Ex.
WW 1/2 is with respect to Hubli. He could not say whether the
name of the workman is still there in the muster roll nor not. He
never worked with workman. Between 2001 to 2003, he used to
often to got at Bombay office. He did not receive any transfer
letter for his transfer from Bombay to Delhi. The workman was
working as Service Technician. The service technician looks
after the problem after the sale including repair. The workman
had no power to appoint any person. The company had no
branch office since 2003. The company had office at Tolstoy
Marg till 2003 and thereafter the company had no office at
Tolstoy Marg. He had no knowledge about Baron
Telecommunication India Ltd. and I also do not whether Baron
Telecommunication India ltd. is related to Barron India.
9. Final arguments on behalf of workman heard.
Management despite direction by order of this court dated
17.01.09, 7.02.09, 25.02.09, 5.03.09 and 19.03.09 failed to file
written arguments.
10. In the arguments on behalf of workman, it is stated that
the transfer order was alleged to be issued by the management
which was in fact termination by the company. It is further stated
by AR for management that it is stated by the management that
the workman does not want to obey the transfer order and thus
taken preliminary objection in their WS/Reply. However, the
management has failed to file any written document or proof
with respect to preliminary objection no. 2. It is further stated by
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AR for management that the management has taken steps for
different authorities, while before the conciliation it is stated that
the workman was transferred to Andhra Pradesh however, in
reply to this court they have been transferred to
Vishakhapattanam. AR for workman states that the transfer
orders are not transfer order at all as these orders do not show
the place of joining. When a person is transferred, he is stated
in clear terms the exact place and address where he has to join.
The transfer order alleged to have been issued by the
management shows no place of joining. Usually the transfer
orders are given sufficient time before joining. However, in the
present case the workman was alleged to have been joined to
new office on 1.01.02 while in fact the transfer order was
received by him on 15.01.02. This shows that company is
manipulating the transfer orders on the pretext of terminating the
services of the employee. Even otherwise whenever the transfer
order is issued the workman is given time for purchase of tickets
etc. and also given temporary shelter for living. The workman
cannot be left on the mercy of God in an unknown area and
place. AR for workman states that the AR for management has
no authority. In fact there is no proof available that he ever
worked with the management and whenever authority is filed is
illegal and has no operation in law as he cannot be authorised
under section 36 (2) of ID Act. AR for workman states that
transfer has not been proved. No document i.e wage register,
salary register has been filed by the management to prove
whatever fact they have alleged in the WS/reply and it is stated
as a fact that the management witness was not competent.
Hence, there is no evidence on behalf of management.
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Management has taken a stand that the management is closed.
However, there is no documentary evidence to prove this fact.
The workman has placed on record the advertisement on behalf
of company shows that the company is in operation and working.
The workman has also filed an advertisement for vacancy of
workman similar to the work being done by the workman.
Hence, it is stated that award may kindly be answered in
affirmative and workman be reinstated with all his earned dues.
11. Citations filed by AR for workman which are as follows :
Bellish India Ltd. Vs. Presiding Officer, Labour Court
and ors. 2003 LLR 293
Mashooq Ahmad Vs. Manager (Personnel & Industrial
Relations), Bharat Pumps & Compressors Ltd., 2001 LAB.
I.C 337
Ram Pratap Sonkar, Petitioner Vs. Chairman &
Managing Director, Allahabad Bank & ors., Respondents,
2001 LAB. I.C 339 R.K Dubey, Petitioner Vs. M.P State Agro Industries Development Corporation and ors., Respondent N.Vijayakumar, Appellant Vs. State of Tamil Nadu and ors., Respondent, 1990 LAB.I.C 2024 G.Babu, Petitioner Vs. C.E (PS & GI) 1989 LAB.I.C 10/16 -11- 2264
12. I have seen the file, evidence, documents and further citations filed by the workman and my findings with respect to the only issue are as under :
REGARDING ISSUE NO. 1Keeping in view the documentary evidence, I feel that the reference be answered in favour of workman and against the management holding that the services of the workman was terminated illegally and unjustifiably by the management under the garb of transfer and workman is entitled to join services with full back wages along with all facilities immediately on following grounds :
(i) On behalf of workman, he himself deposed and his cross examination shows that the management has failed to shake the workman. Hence, the evidence of the workman is unchallenged without any doubt in the cross examination.
(ii) On behalf of management Sh. Deepak Tripathi as MW 1 filed affidavit and duly cross examined. He claimed that he has been duly authorised by the company and placed on record the authorisation letter Ex. MW 1/1. This authorisation letter is signed by Chairperson Ms. Shukun Mulchandani.
However, under the law such authorisation can be issued only after the resolution of the Board of Directors. Hence, this court is doubtful about the authority of Sh. Deepak Tripathi to depose on 11/16 -12- behalf of management.
AR for management was debarred vide order dated 11.08.08. An application was filed on 5.03.09 for recalling of order dated 11.08.08. Alleged AR for management vide resolution authorized Sh. Deepak Tripathi, Ex-employer of the management company to defend the proceedings against the management and Mr. Deepak Tripathi had further authorized Ms. Manjeet Kaur, who is not a legal practitioner to lead the case of the company. According to Section 36 (2) of ID act "An employer who is a party to a dispute shall be entitled to be represented in any proceedings under this Act by ----(a) an officer of an association of employers of which he is a member; (b) an officer of a federation of association of employers to which the association referred to in clause (a) is affiliated;
(c) where the employer is not a member of any association of employers, by an officer of any association of employers connected with, or by any other employer engaged in, the industry in which the employer is engaged and authorised in such manner as may be prescribed."
Since the authority of Sh. Deepak Tripathi and further authority by Sh. Deepak Tripathi to Ms. Manjeet Kaur are not covered under section 36 (2) of ID Act and since the said application were not moved by the authorized persons, their authority cannot be said to be valid and legal.
(iii) Sh. Deepak Tripathi in his cross examination states that he worked with the management till 2003. However, 12/16 -13- he failed to file any document to show or prove as to up to what period and from what period he was working with the management. He deposed that he does not remember the date and month. He further deposed that he has not brought or filed any proof that he was working in Baron International. He does not remember whether there is any resolution of Board authorising him to depose or not. He further states that he has no proof to show that he was working at Delhi office. On next date of cross examination he filed a photocopy of an I-card alleged to have been issued by Baron International Ltd. This photocopy of I-card does not show the date of appointment, date of issue and the name of the person who signed this I-card. On the one hand, he says that the Baron International is no more working but in the further cross examination he stated that the address of the management in complaint Ex. WW 1/A is correct. He also does not know neither can say whether the workman worked from 1995 till March 2002 continuously, a stand which the company took in positive. Thus, while the company states as a fact that the workman worked in the company from 1992 to 2002 but the Authorized Representative MW 1 does not know this fact. Hence, this court is doubtful whether MW 1 was ever posted at Delhi or worked at Delhi. In the result, it is proved that the alleged Authorized Representative does not know the fact of the present case.
(iv) A fact has been undisputed that the workman worked with the management since 1995 till early 2002. It is on the record that there is alleged transfer of the workman from Delhi to Vishakhapattnam (A.P). This transfer order was 13/16 -14- received on 15.01.02. Admittedly, while the date of joining is 1.01.02. This transfer order is further bad as this transfer order does not show or give the exact place and address of posting. If there is no address where the workman will join always in case of out station posting, sufficient time is given for joining with fund i.e purchase of tickets and for temporary stay. Whenever there is an out station posting then it is the duty of the management to provide shelter/lodging. The transfer order shows which is without address and without expenses and provision of lodging that the transfer has been made as to leave the workman at the mercy of God.
(v) However, after receipt of this transfer order the workman through union filed a complaint before Labour Officer and after notice this transfer order was withdrawn by the management and on 19.02.02 the workman joined the management at Delhi.
(vi) Immediately after joining on 19.02.02 by the workman at Delhi office, management alleged to have issued an another transfer order dated 15.03.02 to the workman to Vishakhapattanam. Again no expenses or provision of lodging was provided by the management. It is pertinent to know that this transfer order Ex. WW 1/10, it is stated by MW 1 to be forged and fabricated. If Ex. WW 1/10 which is a transfer order is forge and fabricated in fact there is no transfer order.
(vii) During the proceedings, it is stated that company cease to exist. However, the perusal of file shows that after 14/16 -15- 2003 the company received a notice of this court at Tolstoy Marg office which shows that existence and operation of the company. It is further proved on record that several advertisements have been issued by the management for selling its product by the name of Bush and these advertisements are placed on record by the workman. These advertisements are in the shape of paper cuttings. Further there is an advertisement for calling Technicians in the company in the name of Baron Tele-communication. Baron Telecommunication is functioning at the same address which is the address of the management.
(viii) It is an admitted fact that no enquiry was conducted by the management. It was the duty of the management if the workman has no joined at out station branch to issue charge sheet, holding enquiry and pass appropriate order. It is an admitted fact that there was no enquiry no charge sheet and there was no formal order given to workman. There is no document placed on record by the management to any of these facts.
(ix) It is an alleged fact by the management that the workman was working as supervisory capacity and is not workman and hence not covered under the Industrial Dispute Act. MW in his cross examination admits in his statement that the workman is not a workman is in fact incorrect.
(x) It is further a fact that even if it is taken as true that the workman left the company there might be legal dues or terminal benefits for which the workman is entitled. Nowhere the 15/16 -16- management has stated that these terminal benefits and udes were paid by the management to workman.
13. In view of above, the following relief is granted to the workman :
(a) Management is directed to reinstate immediately the workman.
(b) He is also entitled for full back wages
14. Reference is answered accordingly. Copies of award be sent to the appropriate Government for publication as per law.
File be consigned to the record room after necessary compliance by Ahlmad.
Announced in the Open Court (DAYA PRAKASH) on 4th April, 2009 Additional District & Session Judge Presiding Officer labour Court XVI Karkardooma Courts : Delhi.
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