Delhi District Court
Between The vs The on 4 October, 2013
IN THE COURT OF SH. S.S. MALHOTRA, PRESIDING OFFICER,
LABOUR COURT NO. IX, KARKARDOOMA COURTS, DELHI
ID NO.467/12
Unique Case ID No. 02402C0350812012
BETWEEN THE WORKMAN
Sh.Shiva @ Shivpujan S/o Sh. Ramashray, R/o O1/62, Prem Nagar II, Nangloi,
New Delhi41, C/o General Mazdoor Union (Regd.), T43, Karampura, New Delhi
15.
AND THE MANAGEMENT OF
M/s Pawan Motors, T4/48, Mangolpuri, PhaseI, Industrial Area, Delhi83.
Date of Institution : 7.12.2012
Date on which award reserved : 4.10.2013
Date on which award passed : 4.10.2013
A W A R D
1 Vide this award, I shall dispose off the claim of the workman as filed by him
directly in this court against the management under section 10 (4A) of the
Industrial Disputes Act (hereinafter referred to be as 'the I.D. Act') stating therein
that his services have been terminated illegally by the management on 1.06.12 with
a prayer that the management be directed to reinstate the workman with full back
wages including benefits of continuity of service and all other consequential
benefits.
2 Brief facts as stated by the workman in his statement of claim interalia are,
that he was working with the management at the post of Machine Man since April
2002 and his last drawn salary was Rs.8528/ per month. It is further submitted that
the management is running its another sister concern M/s Pawan Metal Industries
and M/s Pawan Motor Industries at the same address and it used to take work from
the workman at both the managements. It is further stated that during the course of
ID NO.467/12 Shiva @ Shivpujan v M/s Pawan Motors 1/12
employment, the workman had not afforded any chance of complaint to the
management and his service record was clean and unblemished but despite that the
management had not been providing him legal facilities like PF, appointment letter,
bonus, HRA, payslip, attendance card and leave wages etc. and since the
management did not provide any such legal facilities to the workman, the workman
joined the union and because of this reason, the union had filed a complaint on
behalf of the workman on 29.04.12 for general checking of the management before
the Asstt. Labour Commissioner, Nimri Colony, Delhi and on this complaint, the
labour inspector Mr. Sanjay Gupta visited the establishment of the management on
16.05.12and carried out the inspection of the factory premises of the management and even the labour inspector had given a notice to the management for its appearance for dt.21.05.12 before the Asstt. Labour Commissioner but nobody appeared on behalf of the management before the labour office, however, the management aggrieved from such conduct of the workman started thinking to get rid off him and ultimately on 1.06.12 the management terminated the services of the workman illegally without any rhyme or reason and without paying the earned wages of the workman for the month of May 2012 and without conducting any domestic enquiry or issuing any show cause notice to him which is in violation of section 25F and 25G of the I.D. Act. It is further submitted that the management had obtained the signatures of the workman on various blank papers and vouchers at the time of joining the service as well as during the service period and he had put his signatures on the same as he was badly in need of job as well as in good faith of the management and all such documents are still in possession of the management and there is each and every apprehension of misusing those documents by the management at any stage against the workman. It is further submitted that after his illegal termination, he sent a demand notice dt. 18.06.12 to the management through ID NO.467/12 Shiva @ Shivpujan v M/s Pawan Motors 2/12 speed post which was duly served upon the management but the management neither sent any reply to the said notice nor reinstated the workman nor paid his earned wages. It is further submitted the workman again filed a complaint before the Asstt. Labour Commissioner against his illegal termination and on this complaint the labour inspector visited the management alongwith the workman where he met with the management and the labour inspector had told the management to take the workman back on duty and also to pay his earned wages for the month of May 2012 but the management neither reinstated the workman nor paid his earned wages nor produced any record of its employees before the labour inspector. Thereafter, the workman filed his statement of claim before the Asst. Labour Commissioner where the management filed its reply by stating that the correct name of the management is M/s Pawan Motors and ultimately the workman has filed the present statement of claim under section 10 (4A) of the I.D. Act directly before this court by stating that he is unemployed since the date of his termination and as such he has prayed that the management be directed to reinstate the workman in service with full back wages including benefits of continuity of service and all other consequential benefits.
3 Management was served and it has filed its written statement thereby taking preliminary objections interalia that the claim of the workman is not maintainable on the ground that the services of the workman were never terminated by the management and in fact the workman himself started absenting from the duty illegally w.e.f. April 2010 and thereafter, he was again absent from the duty w.e.f. October 2010 and remained absent upto February 2011 and left the job of the workman on 28.02.11. He again approached the management on 2.04.11 and settled his dues with the management and the management paid him an amount of Rs.15000/ in cash towards full and final dues of all his claims on 2.04.11 and it is ID NO.467/12 Shiva @ Shivpujan v M/s Pawan Motors 3/12 further submitted that the claimant thereafter again came to the management on 5.05.12 and the management keeping in view his request allowed him to rejoin the duty on fresh terms w.e.f. 5.05.12. However, the workman thereafter joined the union and started absenting from the duty w.e.f. 29.05.12 and failed to join the duty despite requests and remainders of the management and as such the present claim has been filed only to extort money from the management which is liable to be dismissed. As far as merits are concerned, employer employee relationship is not denied and it is submitted that the workman joined the service of the management on 1.08.07 at the post of helper and his last drawn salary was Rs.7020/ per month. It is denied that the workman was working with the management at the post of Machine Man since April 2002 or that his last drawn salary was Rs.8528/ per month or that he had been performing his duties diligently. It is also denied that legal facilities were not being provided to the workman and it is submitted that all the facilities and legal benefits were being given to the workman and there was no question of demanding any such legal facilities or any dues from the management. As far proceedings with respect to general checking before the ALC are concerned, it is stated that the workman has filed the said complaint on false averments only to harass the management and the management has nothing to do with the said proceeding. The contents of preliminary objections with respect to full and final settlement of the workman on 2.04.11 are reiterated and it is submitted that the workman did not join the management after 29.05.12. Service of demand notice is not specifically denied and as far as proceedings before the labour inspector are concerned, it is stated to be matter of record and all other facts of the statement of claim are denied word by word and it is prayed the claim of the workman be dismissed.
4 The workman thereafter filed rejoinder in which he denied all the contents of ID NO.467/12 Shiva @ Shivpujan v M/s Pawan Motors 4/12
the written statement word by word and he has reiterated and reaffirmed the facts of the statement of claim and it is prayed that an award may kindly be passed in favour of the workman in terms of the prayer made by him in the statement of claim. 5 After the completion of pleadings, the following issues were framed on 13.02.13:
1 Whether the workman started absenting from the duty of his own from April 2010 and left the job accordingly?OPM.
2 Whether the workman has settled his account with the management on 2.04.11 after accepting Rs.15000/ in full and final settlement?OPM. 3 Whether the workman was appointed afresh thereafter w.e.f. 5.05.12? If so, its effect?OPM.
4 Whether the services of the workman have been terminated by the management illegally and/or unjustifiably?OPW.
5 Relief.
6 After the framing up of the issues, both the parties were given opportunity to lead their evidence to prove their respective contentions/pleas and accordingly, the matter was fixed for workman's evidence and the workman examined himself as WW1 and thereafter he closed his evidence. Thereafter, opportunity was given to the management and the management examined Sh.Praveen Kumar as MW1 (authorized representative of the management) and then management also closed its evidence. After conclusion of evidence both the parties, the matter was fixed for final arguments.
7 I have heard the arguments and perused the record. My issuewise findings
are as under:
ID NO.467/12 Shiva @ Shivpujan v M/s Pawan Motors 5/12
ISSUE NO. 1
8 The onus to prove this issue was upon the management and it had to prove
that the workman started absenting from the duty of his own from April 2010 and left the job accordingly.
9 The written statement of the management is quite vague. In the preliminary objections it is mentioned that the workman started absenting from the duty from April 2010 and was again absent w.e.f. October 2011. There is no clarification as to if the workman was running absent from April 2010, then on which date he joined the management again as the next sentence in the written statement is that the workman thereafter started absenting from October 2010 and remained absent upto February 2011 and then left the job on 28.02.11. It is further submitted that in the written statement that the workman approached management on 2.04.11 and settled the matter after accepting Rs.15000/. Ld.ARM gave a suggestion to the workman while cross examining him that he has taken leave from the management in the month of April 2010 for going to his native village at least for one month and he used to take leave from the management twice in a year, sometimes for one month or sometimes for 7 days which suggestion was admitted to be correct. He further deposed that he does not remember whether he has taken a leave from the management in the month of October 2010 or not, but he admitted as correct that he used to go to his native village twice in a year and he did not take sanctioned leave in writing from the management and he volunteered that he used to take leave orally and denied the suggestion that he was absent from the duty since October 2010 to February 2011.
10 The management has filed its evidence by way of affidavit but when MW1 was being cross examined he admitted as correct that he has not filed any document ID NO.467/12 Shiva @ Shivpujan v M/s Pawan Motors 6/12 on court record by which it may prove that he has been authorized by the management to depose before the court and he has not filed any document on record to prove that he is an employee of the management. Therefore, there is no specific evidence of the management on this issue.
11 I have given my thoughtful consideration to the respective contentions. The contention of the management appears to be vague as the management appears to be in confusion for proving the fact as whether the workman was on leave or was running absent during this period. It is settled law that suggestion given to other party is the case of the party who suggests the question. It is the suggestion of the management itself that the workman had taken leave from the management from April 2010 and the workman admitted it that he took leave and he further deposed that he used to take oral leave from the management. There is no further cross examination by the management on the point as to whether there is any procedure prevailing in the management of taking leave or whenever any worker would ask for any leave then he has to apply for said leave in writing. Neither any such suggestion has been given nor any documentary evidence has been filed to prove this fact. The fact that the workman was taking oral leave on regular basis and the management was granting it is an admitted fact.
12 To appreciate this contention, the matter can be pursued from another angle that if the workman was running absent, then what action has been taken by the management against the workman. The management is not specific on this issue.
The management admittedly has not taken any action against the workman for his alleged absence, rather it is keeping the employee as and when he comes to join after his alleged absent. No attendance register or wage register has been proved by the management that the workman was running or was regular absentee. Law otherwise is well settled that if the workman remains absent then some sort of ID NO.467/12 Shiva @ Shivpujan v M/s Pawan Motors 7/12 enquiry has to be conducted by the management against him. Neither there is any call back notice to the workman, nor there is any show cause notice issued to the workman thereby asking him as to why he is running absent, rather there is complete concession made by the management that he may come and join at any time. Therefore, the management has not been able to prove that the workman running absent from the duty w.e.f. April 2010 or he was again absent from October 2010 to February 2011 or he left the job on 28.02.11. This issue is decided against the management.
ISSUE NO. 2 & 3 13 The onus to prove both these issues was upon the management and it had to prove that the workman has settled his account with the management on 2.04.11 after accepting Rs.15000/ in full and final settlement or thereafter he was appointed afresh w.e.f. 5.05.12.
14 The management took this objection in the written statement in the preliminary objections and when the workman has cross examined, he was also confronted by showing full and final receipt to the workman, on which the workman denied his signatures and this document was accordingly marked as WW1/XMark1. When the opportunity was given to the management to file evidence, it filed evidence of Sh. Praveen Kumar who has tendered his evidence as Ex.MW1/A and exhibited appointment letter as Ex.MW1/1. The other record of the management was proved as Ex.MW1/2 which are place in ID No.466/12 and which file has been summoned. In cross examination, MW1 deposed that he has not filed any document on court record which may prove that he is authorized to depose before the court on behalf of the management. He has also deposed that he has not filed any document to prove that he is an employee of the management. 15 ID NO.467/12 Shiva @ Shivpujan v M/s Pawan Motors 8/12 There is no further cross examination of the MW1. I have perused the affidavit of MW1 and in the affidavit, he has not explained as to what is he in the management and he has only stated that he is working with the management as sales executive on commission basis and he is also looking after the affairs of the management for and on behalf of its proprietor and is well aware of the facts of the present case. 16 I have perused the entire file and there is not even a single document on court record that this person i.e. Mr. Praveen Kumar has ever been authorized by the management to appear before this court. There is no authority letter in favour of Mr. Praveen Kumar filed by the management on court record. There is no document on court record by which it can prove that Mr. Praveen Kumar was working with the management as sales executive. No such document even has been filed or exhibited in his own affidavit of Mr. Praveen Kumar. Therefore, the status of Mr. Praveen Kumar has been nowhere explained and only for that reason Ld.ARW has chosen not to cross examine this witness any more. Therefore, the net effect remains that there is no evidence of the management on the court record as the person who filed the evidence by way of affidavit has failed to prove that he has ever been authorized by the management to depose before the court and the workman otherwise has denied that he has put his signatures on full and final signatures.
17 In cross examination a suggestion was given to the workman that he has left the job voluntarily on 28.02.11 or that he came to the management on 2.04.11 and received Rs.15000/ towards full and final payment which suggestion was denied. To prove this full and final settlement, the management was supposed to bring witness in whose presence this full and final settlement was arrived at and made the payment of Rs.15000/ to the workman. MW1 although appeared in witness box yet has not been able to prove any authorization in his favour and despite that the ID NO.467/12 Shiva @ Shivpujan v M/s Pawan Motors 9/12 management has not filed any application for seeking permission to examine some other authorized person from the management. One Sh. Gopi Ram Jain (writing not clear) appears to have signed on the voucher on behalf of the management but this witness has not turned up to depose. There is no name in the list of witness in whose presence this amount was given to the workman. Even otherwise no additional document has been filed by the management with respect to payment of Rs.15000/ to the workman. Therefore, the management has failed to prove that the workman has settled his account with the management on 2.04.11 after accepting Rs.15000/ in full and final settlement and thereafter he was appointed afresh w.e.f. 5.05.12. This issue is decided against the management.
ISSUE NO.4 18 The onus of this issue was upon the workman and he had to prove that his services have been terminated by the management illegally and unjustifiably. 19 The management has admitted employer employee relationship in between the parties. The court while disposing off issue no.2 has already held that the management has failed to prove that the workman has resigned from the job after settling his account in full and final. At present the workman admittedly is not working with the management. Since there is no evidence of the management on the court record as the person who filed the evidence by way of affidavit has failed to prove that he has ever been authorized by the management to depose before the court and since the management has not followed the provisions of section 25F of the Industrial Disputes Act prior to terminating the services of the workman, it is held that the workman has been able to prove that his services have been terminated by the management illegally and unjustifiably. This issue is decided in favour of the workman.
ID NO.467/12 Shiva @ Shivpujan v M/s Pawan Motors 10/12 RELIEF (ISSUE NO.5) 20 Keeping in view the findings of the court of issues no. 1 to 4, it is held that
the workman is entitled to relief claimed. However, the workman has claimed reinstatement and the court is of the opinion that since both the parties have lost faith of each other, reinstatement of the workman in service would not be in the interest of both the parties and a lump sum compensation instead of reinstatement would be a better option.
21 In coming to the above conclusion, the court also find support from the judgment of Hon'ble Delhi High Court given in the case of Rameshwar Dayal Vs. Presiding Officer Labour Court No. VI, Delhi & Anr. 2007 (3) LLJ 729 (DHC) wherein the Hon'ble Delhi High Court came to the conclusion that "a lumpsum amount of Rs.50000/ as compensation in lieu of reinstatement and back wages towards full and final settlement of all claims of the workman was an appropriate relief".
22 In Kishan Lal & Ors. Vs. Govt. Of NCT of Delhi & Ors., 2007 VI AD (Delhi) 13, the Hon'ble Delhi High Court held mainly to the effect that "in lieu of grant of relief of reinstatement and full back wages, the management was directed to pay to each of the workmen a lumpsum compensation of Rs.40000/ towards full and final settlement of all claims of each of such workmen". 23 In Indian Railway Construction Company Ltd. Vs. Ajay Kumar, AIR 2003 Supreme Court 1843, the Hon'ble Supreme Court of India awarded one time lump sum compensation to the workman in this case towards full and final settlement of all his claims.
24 Keeping in view all these facts and circumstances and also keeping in view law points cited hereinabove, a lump sum compensation is granted to the workman ID NO.467/12 Shiva @ Shivpujan v M/s Pawan Motors 11/12 to the extent of Rs.45000/ in lieu of his reinstatement, back wages and all other consequential benefits. The management is directed to pay the lump sum compensation to the extent of Rs.45000/ to the workman within a period of one month from the date of award, failing which this amount shall carry a simple interest @ 8% per annum from the date of award till realization. An award to the above effect is passed today separately.
A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt/Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
ANNOUNCED IN THE OPEN COURT (S.S. MALHOTRA)
ON 4th Day of October, 2013 PRESIDING OFFICER: LABOUR
COURTIX/KARKARDOOMA COURTS,
DELHI
ID NO.467/12 Shiva @ Shivpujan v M/s Pawan Motors 12/12