Delhi District Court
Naresh Kumar S/O. Sh. Hari Ram vs M/S. Surya International on 24 September, 2014
Naresh Kumar Vs. M/s. Surya International & Anr. ID No. 132/12
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI:
KARKARDOOMA COURTS: DELHI
REFERENCE CASE (ID) No. 132/12
UNIQUE CASE ID No. 02402C0140792012
In the matter of :
Naresh Kumar s/o. Sh. Hari Ram
R/o. RZ21/H, Sagar Pur, Ashok Park,
New Delhi110046.
C/o. All India General Mazdoor Trade Union (Regd.),
170, Bal Mukand Khand, Giri Nagar,
Kalkaji, New Delhi - 110019.
...... Workman / Claimant
Vs.
1.M/s. Surya International, (through its Proprietor Mr. Vasudev Pahwa) B87, Naraina Industrial Area, Phase2, New Delhi - 110028
2. M/s. SDS Security Pvt. Ltd., AB14B, Safdarjung Enclave, New Delhi - 110029 ...... Managements Date of Institution : 07.05.2012 Date of reserving for award : 05.09.2014 Date of award : 24.09.2014 AWARD :
1. TERMS OF REFERENCE.
Vide Order No. F3(75)/11/Ref./WD/LAB./141 dated 19.04.2012, Deputy Labour Commissioner (West District), Labour Department, Government of N. C. T. of Delhi, New Delhi made the following reference under section 10 (1) (c) and section 12 (5) of the Industrial Disputes Act, 1947 vide Govt. of N. C. T. of Page 1 to 15 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/24.09.2014 Naresh Kumar Vs. M/s. Surya International & Anr. ID No. 132/12 Delhi, Labour Department Notification No.F1/31/616/Estt./2008/7458 dated 3rd March 2009 for adjudication by this Court: "Whether the services of Sh. Naresh Kumar S/o Sh. Hari Ram have been terminated illegally and/or unjustifiably by the management; and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. CASE OF WORKMAN AS PLEADED IN STATEMENTOFCLAIM (Note: At the outset it is noted that workman in the memorandum of parties in the statement of claim has mentioned M/s. Surya International as Main Employer ('Mukhya Prabandhak') and M/s. SDS Security Pvt. Ltd. as Contractor.)
(i) Workman was working with management since 12.08.2005 as 'Cutting Master' with his hard labour & honestly, and his last drawn salary was Rs.
11,500/ per month. Workman during his service tenure never gave any opportunity to the management to have any complaint against him nor there was any charge against the workman. But management was not providing legal facilities available under the Factories Act such as leave book, salary slip, attendance card, weekly and yearly leaves, bonus, double overtime, travelling allowance, house allowance (HRA) etc. to the workman.
(ii) When workman demanded abovesaid legal facilities, management got enraged, and, with retaliatory feelings, without any reason notice / chargesheet, without taking permission from Delhi Government or making any payment and by withholding the salary of workman from 01.11.2011 to 26.11.2011, terminated the services of workman on 27.11.2011 and got the signatures of workman forcibly on blank papers and blank vouchers, which is in violation of the provisions of Section 25F of the Industrial Disputes Act, 1947.
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(iii) Main employer was paying a sum of Rs.4300/ per month to workman
besides abovesaid salary.
(iv) Workman was appointed by main employer but, to avoid compliances
with labour laws and to misappropriate the statutory monetary benefits, workman's name was put in the M/s. SDS Security Pvt. Ltd. For this reason both the establishments have been made parties herein.
(v) Workman sent a demand notice dated 14.12.2011 to the management through registered AD / Speed Post. Despite the receipt of the said demand notice, management neither replied the demand notice nor made any payment nor reinstated the workman in service.
(vi) Workman through union made a written complaint to the Regional Assistant Labour Commissioner. Pursuant thereto a labour inspector visited the management to reinstate the workman in service but despite the advice of labour inspector, management refused to reinstate the workman in service or to pay his unpaid salary etc.
(vii) Management used to take overtime work from the workman for 4 hours a day but never paid overtime charges to him.
(viii) Workman is unemployed since the date of termination of his services and workman did not get alternative service despite endless efforts made by him.
With these averments in the StatementofClaim, workman prayed for an order against the management for payment of unpaid salary, other monetary dues and reinstatement in service with full back wages.
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3. CASE OF MANAGEMENT No.1 AS PLEADED IN WRITTEN
STATEMENT OF DEFENCE.
As per management no.1 present statement of claim is not maintainable because there did not exist direct relationship of master and servant between workman and the management no.1. As pleaded, workman was an employee of management no.1's contractor M/s. SDS Security Pvt. Ltd. (management no.2). There was an agreement between management no.1 and contractor M/s. SDS Security Pvt. Ltd. which was fulfilling all the obligations under the Contract Act (sic). Management no.1 further pleaded that it is a law abiding company and never intended to avoid any provisions of law and is already registered under the Contract Labour (R & A) Act, 1970 vide registration no. CLA / PE / DLC / WD / 13 / 274. Management no.1 has maintained all relevant record and registers under all the provisions laid under the law for those employee who were working with it. Management no.2 deployed workman at the premises of management no.1 under the agreement and management no.2 is having licence under the Contract Act (sic). Workman enjoyed all legal facilities as per the provisions of law such as ESI, Provident Fund, leaves and bonus etc. and his services were never terminated or retrenched in any manner. Infact workman is absent from his duty w.e.f. 28.11.2011 without any intimation or presanctioned leave. Management no.2 gave so many opportunities to join his duty but workman failed in all respect. Management no.1 lastly pleaded that workman has made a concocted story and has not approached the Court with clean hand and has suppressed the real facts and is misrepresenting the facts. At last, management no. 1 prayed for rejection of statement of claim and passing of 'No Dispute Award'.
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4. CASE OF MANAGEMENT No.2 AS PLEADED IN WRITTEN
STATEMENT OF DEFENCE.
While denying the case as pleaded by workman in the statement of claim, management no.2 pleaded that workman joined management no.2 and management no.2 on 01.08.2007 deployed the workman at / to M/s. Surya International Pvt. Ltd., New Delhi in due course of business. Workman was always being paid his wages, bonus, and, all his dues such as ESI and Provident Fund as per provisions of law etc. have been paid by management no.2. Management no.2 is having a valid labour licence under the Contract Labour (Regulation & Abolition) Act, 1970 and the services of workman were never terminated or retrenched; rather workman absented from his duties / services without any preintimation or presanctioned leave from 28.11.2011. Management no.2 is law abiding company and never intended to avoid compliances of any law and workman enjoyed all legal facilities as per law. Management no.2 never refused to give duty but workman again failed to join his duty. No demand notice was received by management no.2. Management no.2 also gave an opportunity to workman to join the duties before conciliation officer but workman again failed to join his duties. If workman is unemployed, management no.2 cannot be made responsible for the same in any manner. At last, management no.2 also prayed for dismissal of statement of claim of workman with costs and passing of 'No Dispute Award'.
5. REJOINDER Workman filed separate rejoinders to the WSs of both the managements denying the stands taken by the managements and reaffirming the averments made in the statement of claim.
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6. ISSUES
Vide order dated 16.11.2012 following issues were framed by ld. predecessor of this Court: (1) Whether there existed no relationship in the nature of "an employer and an employee" between the Management no.1 and the claimant / workman? OPW/OPM (2) Whether the workman has willfully and unauthorizedly remained absent from his duties, if yes, from what date and period and its effect? OPM (3) As per terms of reference.
(4) Relief, if any. 7. EVIDENCE.
Workman examined himself as WW1 Naresh Kumar. Workman relied upon documents Ex.WW1/1 - Statement of claim filed before Conciliation Officer; Ex.WW1/2 - Acknowledgment Card; Ex.WW1/3 and Ex.WW1/4 - Postal receipts both dated 14.12.2011; Ex.WW1/5 Demand Notice dated 14.12.2011; Ex.WW1/6 - Identity card of workman; Ex. WW1/7 - ESI card of workman; Ex.WW1/8 - ESICII C card of workman and Ex.WW1/9 - Temporary Identity Certificate (ESIC) of workman. WE was closed on 19.09.2013 by Sh. Anil Rajput, Adv. for workman. Managements examined MW1 Mr. Ramesh Mishra, Manager (Personnel & Administration) and MW2 Mr. M. A. Zinna, Manager (HR). Managements relied upon documents Ex. MW1/X1 (Collectively 20 pages). ME was closed on 29.05.2014.
8. ARGUMENTS I have heard Mr. Anil Rajput, advocate for the workman and Mr. R. K. Pandey, adv. for both managements. Ld. counsel for workman relied upon case Page 6 to 15 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/24.09.2014 Naresh Kumar Vs. M/s. Surya International & Anr. ID No. 132/12 laws reported as ICM Engineering Workers Union Vs. Union of India & Ors. 2000 VII AD (Delhi) 1037. Material available on judicial file perused very carefully. I have given a thoughtful consideration to the facts and circumstances of this case as they arise on the basis of material available on judicial file.
9. My ISSUEWISE FINDINGS are as under: ISSUE No.1 Whether there existed no relationship in the nature of "an employer and an employee" between the Management no.1 and the claimant / workman? OPW/OPM HERE, case of workman is that workman was working with management since 12.08.2005 as 'Cutting Master' with his last drawn salary as Rs.11,500/p.m. Further, workman pleaded that workman was appointed by the main employer namely M/s. Surya International but, to avoid compliances with labour laws and to misappropriate statutory monetary benefits, workman's name was put in M/s. SDS Security Pvt. Ltd.. Workman also pleaded in the statementofclaim that main employer namely M/s. Surya International was paying a sum of Rs.4300/ p.m. to workman besides abovesaid salary.
ON THE OTHER HAND case of management no.1 is that there did not exist direct relationship of master and servant between management no.1 and workman, and workman was an employee of M/s. SDS Security Pvt. Ltd. with whom management no.1 was having an agreement for supply of contract labour. Management no.1 also pleaded that management no.1 is registered under the Contract Labour (Regulation & Abolition) Act, 1970 vide registration no. CLA / PE / DLC / WD / 13 / 274. Management no.2 pleaded that workman joined the management no.2 and management no.2 on 01.08.2007 deployed the workman at / to M/s. Surya International Pvt. Ltd. (sic).
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Management no.1 in the WS has taken certain preliminarily objections but no parawise / specific reply to the averments made by the workman in the statementofclaim has been given by management no.1. Management no.1 has not pleaded as to when it entered into alleged agreement with management no.
2. Nor management no.1 pleaded as to when services of workman were made available to it by management no.2 pursuant to alleged agreement between management no.1 and no.2. Management no.1 also did not deny the averments of the workman that management no.1 as main employer was paying a sum of Rs.4300/ p.m. to workman in addition to salary paid to him. Also, it is pertinent to note that management no.1 is a sole proprietorship concern owned by Mr. Vasudev Pahwa who has signed WS on behalf of management no.1 but said Mr. Vasudev Pahwa has not cared to appear in the witness box to prove the stand taken by management no.1 in the WS on judicial file. Management no.1 examined MW1 Mr. Ramesh Mishra who in his cross examination deposed that, "I am working as Manager since year 2010 with management no.1.....". If MW1 Mr. Ramesh Mishra joined the management no.1 in year 2010, obviously, MW1 Mr. Ramesh Mishra cannot be said to be having any knowledge about the facts of this case which occurred prior to his joining the management no.1 in the year 2010. In such circumstances, to an extent it can be said that averment / deposition of the workman to the effect that workman joined the management namely M/s. Surya International on 12.08.2005 as 'Cutting Master' has gone unchallenged / unrebutted. As per management no.1, it was registered under the Contract Labour (Regulation & Abolition) Act, 1970 vide registration no. CLA / PE / DLC / WD / 13 / 274 but copy of registration certificate bearing this registration no. has not even been filed on record. The registration certificate which has been filed on record by management no.1 Page 8 to 15 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/24.09.2014 Naresh Kumar Vs. M/s. Surya International & Anr. ID No. 132/12 bears no. CLA/PE/DLC/W/2008/13/1963 dated 10.08.2008. Also, it is noted that as per management no.2 services of workman were provided to management no.1 w.e.f. 01.08.2007. None of the documents filed by MW1 Mr. Ramesh Mishra show that management no.1 was registered under the Contract Labour (Regulation & Abolition) Act, 1970 on the said date. The documents filed by management no.1 shows its registration under the Contract Labour (Regulation & Abolition) Act, 1970 from 01.01.2008 till 13.12.2013. Also, it is pertinent to note that abovesaid registration of management no.1 during the period from 01.01.2008 till 31.12.2011 was as regards NATURE OF WORK as Security and Helper. Obviously, services of workman as a 'Cutting Master' does not fall within the services in the abovesaid nature of work. MW1 Mr. Ramesh Mishra is relying upon contract dated 01.04.2004 purportedly executed between management no.1 and no.2. What is pertinent to note that this is a contract to provide 'Helpers' and 'Labour' for packing. Services of workman as 'Cutting Master' could not have been provided by management no.2 to management no.1 pursuant to abovesaid contract dated 01.04.2004. Also, it is noted that MW1 Mr. Ramesh Mishra is relying upon another contract between management no.1 and no.2 commencing on 31.01.2010 till 30.01.2011 for providing Tailors, Helpers and Labour for packing. As per management no.2 services of workman were provided to management no.1 w.e.f. 01.08.2007 on which date abovesaid last referred contract was not in existence. Thus, even this last referred contract does not support the stand of managements that services of workman as 'Cutting Master' were provided by management no.2 to management no.1 w.e.f. 01.08.2007. Above discussions goes to suggest that defences as pleaded by managements in their WSs as regards the manner of workman starting to work with managements are not substantially true.
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Workman in his cross examination deposed as under: "xxxxxxxxxxxx by Sh. R K Pandey, ld. counsel for the management no.1. It is wrong to suggest that I was appointed by the management no.2 i.e. M/s SDS Security Pvt. Ltd. Vol I was firstly appointed by the management no.1 and later on appointed by the management no.2. It is wrong to suggest that I was never appointed by the management no.1. It is correct that ESI was deducted and issue ESIC card by the management no.2 but EPF was not deducted. It is wrong to suggest that EPF was deducted by the management no.2.
It is wrong to suggest that I was absent from my duties from 28.11.2011 without any intimation or pre-sanctioned leaves. It is wrong to suggest that the management offered me the duties before the conciliation officer. It is wrong to suggest that I am deposing falsely in this regard. It is wrong to suggest that I used to get salary from the management no.
2. It is correct that the management no.2 used to pay salary by cheque. It is wrong to suggest that I am deposing falsely."
"xxxxxxxxxxxx by Sh. R K Pandey, ld. counsel for the management no.2. It is correct that the management no.2 appointed me as Cutting Master w.e.f. 01.08.2007. Vol when I was getting cheque of salary from the management no.2 then I know that I was appointed by the management no.2. I was getting first salary cheque on 07.09.2007.
It is correct that ESI was deducted and issue ESIC card by the management but EPF was not deducted. It is wrong to suggest that EPF was deducted by the management.
More than 40 tailors were working under me. It is wrong to suggest that management no.2 deployed me to the management no.1. It is correct that no salary is due on the management no.2."
"xxxxxxxx by Sh. R K Pandey, adv. for the management no.2. It is wrong to suggest that I am absent from my duties w.e.f. 28.11.2011 without any pre sanctioned leaves. It is wrong to suggest that management offers the duty before the conciliation officer but he is not willing to joined the duties. It is wrong to suggest that I left the sevices at my own. Presently I am unemployed. It is wrong to suggest that I am gainfully employed. It is wrong to suggest that I am deposing falsely."
Workman in his cross examination has denied the suggestion that workman was appointed by management no.2 M/s SDS Security Pvt. Ltd. Workman volunteered that firstly he was appointed by management no.1 and Page 10 to 15 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/24.09.2014 Naresh Kumar Vs. M/s. Surya International & Anr. ID No. 132/12 later on he was appointed by management no.2. Workman in his cross examination further clarified that when workman was getting cheque of salary from management no.2 than workman came to know that he was appointed by management no.2. In the totality of facts and circumstances of this case, the depositions made by workman in his cross examination also support the version of workman that he was initially appointed by management no.1 and then by management no.2. In the facts and circumstances of this case merely because workman himself is relying upon ESI card issued by management no.2 showing his date of appointment as 27.08.2007 does not rule out the possibility of workman initially joining the management no.1 and then his appointment was shown to be as contract labour of management no.2. The ESI card Ex.WW1/8 shows the date of appointment of workman as 27.08.2007 but in his cross examination by ld. counsel for management no.2 workman was made to depose that, "It is correct that management no.2 appointed me as Cutting Master w.e.f. 01.08.2007. Vol when I was getting cheque of salary from the management no.2 then I know that I was appointed by the management no.2. I was getting first salary cheque on 07.09.2007..." This all suggest that workman for the first time was shown as worker of management no.2 w.e.f. 01.08.2007. MW2 Mr. M A Zinna in his cross examination deposed that, ".... Workman had filled enrollment form at the time of joining with management no.2. Workman was interviewed by management no.2 through Mr. Jailal Yadav, Recruitment Officer....". But management no.2 has not even produced the said enrollment form on judicial file or examined Mr. Jailal Yadav to prove that workman was appointed by management no.2 as pleaded in the WS of management no.2. In view of above detailed discussion, by applying the principle of preponderance of probabilities, it is observed that quite possibly Page 11 to 15 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/24.09.2014 Naresh Kumar Vs. M/s. Surya International & Anr. ID No. 132/12 workman joined the management no.1 as per averments / depositions made by him and subsequent his name was put in M/s. SDS Security Pvt. Ltd. Issue no. 1 is decided accordingly in favour of workman and against the management no.
1. ISSUE No.2 Whether the workman has willfully and unauthorizedly remained absent from his duties, if yes, from what date and period and its effect? OPM HERE, case of workman is that his services were terminated w.e.f. 27.11.2011. On the other hand, case pleaded by managements is that workman is absent from his duties w.e.f. 28.11.2011 without any intimation or pre sanctioned leaves. MW2 Mr. M. A. Zinna in his cross examination deposed as under: "...... Management no.2 did not write any letter to workman requiring him to resume his duties. (vol. workman was verbally asked to join his duties. Also during conciliation proceedings 6 workmen other than workman herein settled the matter with the management.) Workman was verbally asked to join his duties as deposed by me above firstly before the conciliation officer.
Management did not conduct any domestic enquiry on account of alleged unauthorized absentism of the workman. Management no.2 did not receive Ex.WW1/5 which bears correct address of the management. Management no.2 did not issue I. Card Ex.WW1/6.
It is wrong to suggest that workman was not absent from duties w.e.f. 28.11.2011. It is wrong to suggest that I am deposing falsely." Management no.2 did not write any letter to workman requiring him to resume his duties. Management no.2 has not proved on judicial file the record of conciliation proceedings to prove that workman was verbally asked to join his duties before the conciliation officer by MW2 Mr. M A Zinna. Further, as per above depositions management no.2 did not conduct any domestic enquiry Page 12 to 15 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/24.09.2014 Naresh Kumar Vs. M/s. Surya International & Anr. ID No. 132/12 on account of alleged unauthorized absenteeism of workman. Failure on part of management no.2 in writing letter to workman to resume his duties and/or conducting domestic enquiry on account of alleged absenteeism of workman goes to suggest that quite possibly managements terminated the services of workman as per case of workman. This conclusion gets support from the fact that management no.2 has even failed to prove on judicial file by summoning record of conciliation proceedings to prove that during conciliation proceedings workman was asked to join his duties. The fact that workman resorted to legal remedies available to him by sending demand notice Ex.WW1/5 dated 14.12.2011 immediately after the termination of his services w.e.f. 27.11.2011 supports the version of the workman. The said demand notice admittedly bears the correct address of both managements and, thus, both the managements can be presumed to have been served with the said demand notice in ordinary course of postal business but managements preferred not to reply the said demand notice. The fact that managements did not reply the demand notice also goes to presumably suggest that the version of the workman as regards termination of his services by management(s) is true. This issue is accordingly decided against the management(s). ISSUE No.3 : In terms of reference.
("Whether the services of Sh. Naresh Kumar S/o Sh. Hari Ram have been terminated illegally and/or unjustifiably by the management; and if so, to what relief is he entitled and what directions are necessary in this respect?") In view of my findings on issue no.1 and no.2, by applying the principle of preponderance of probabilities, reference deserves to be decided in favour of workman and against the management(s). In my considered opinion, keeping in view the issues involved herein reinstatement of workman in service with Page 13 to 15 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/24.09.2014 Naresh Kumar Vs. M/s. Surya International & Anr. ID No. 132/12 management(s) would not result in cordial industrial relations between the workman and management(s). Also, it has to be kept in mind that management no.1 is a sole proprietorship concern owned by Mr. Vasudev Pahwa. Further, workman is held to be not entitled to full back wages inasmuch as he has failed to show that workman made sincere serious efforts for getting service. Further, it has to be kept in mind that workman who is an experienced Cutting Master under whom as many as more than 40 Tailors were working (as deposed by him in his cross examination) cannot be believed to be sitting idle at home for a long period of about 3 years in a city like Delhi wherein garment business is flourishing day and night. Accordingly, workman is also not entitled to full back wages.
In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the tune of Rs.1,50,000/ (Rupees One Lac and Fifty Thousand Only) to the workman for illegal / unjustified termination of his services by the management(s) and for consequences thereof / back wages would meet the ends of justice. Both the management(s) are held to be liable to pay abovesaid compensation jointly and severally in the facts and circumstances of this case. If this amount of Rs.1,50,000/ (Rupees One Lac and Fifty Thousand Only) is not paid to workman within one month of publication of this award, management(s) shall be liable to pay interest @ 9% per annum, jointly and severally on this amount from the date of the award till its payment. A sum of Rs.10,000/ (Rupees Ten Thousand Only) is also awarded to workman as costs of litigation payable by the management(s). Issue no.3 is decided accordingly.
ISSUE No.4 Relief : In terms of above observations.
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10. Reference is answered accordingly.
11. A copy of the award be sent to the concerned Office of the Deputy Labour Commissioner (Distt. West) for further necessary action.
12. File be consigned to Record Room after completing due formalities. PRONOUNCED IN THE OPEN COURT ON 24.09.2014.
(ANAND SWAROOP AGGARWAL)
POLCXI, Karkardooma Courts, Delhi
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