Delhi District Court
Between The vs The on 4 April, 2013
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IN THE COURT OF SH.S.S.MALHOTRA, PRESIDING OFFICER, LABOUR
COURT NO. IX, KARKARDOOMA COURTS, DELHI
ID NO. 271/11
Unique Case I.D. No. 02402C0162262011
BETWEEN THE WORKMAN
Sh.Hans Raj
s/o Sh.Ram Surat
Represented by
Delhi General Mazdoor Front,
BK1/33B, Janta Flat, Shalimar Bagh,
Delhi88
AND THE MANAGEMENT OF
M/s Golyan Metal Pvt.Ltd.
A104/13, Wazirpur Industrial Area,
Delhi52
Date of Institution : 24.05.2011
Date on which award reserved : 30.03.2013
Date of passing of award : 04.04.2013
AWARD
1 Vide this order, I shall dispose off the reference no. F. 24/ID.
(635)/10/NWD/(100)/10/Lab./39964000 dated 18.5.2011 as received from the
Dy. Labour Commissioner, North West District, Govt. of NCT of Delhi to the
following effect:
"Whether services of Sh.Hans Raj s/o Sh.Ram Surat have been illegally
and/or unjustifiably terminated by the management; and if yes, to what relief is he
entitled and what directions are necessary in this respect?".
2 After receiving of the reference, notice was sent to the claimant/workman
with direction to file the statement of claim which he has filed and as per the
Hans Raj vs M/s Golyan Metal Pvt.Ltd.
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statement of claim he had been working with the management since 2000 as a
'Machineman' and his last drawn salary was Rs. 4200/ per month and he was
working with full dedication and had never afforded any opportunity of complaint
to the management. There were about 200 employees who had been working with
the management in shifts and each shift was of 12 hours and every workman was
compelled to work for 4 hours extra per day that too without paying overtime
charges. The management M/s Golyan Metal Pvt. Ltd. A104/13, Wazirpur
Industrial Area, Delhi52, M/s Anil Metal Industries A104/9, Wazirpur Industrial
Area, Delhi52 and M/s Vinayak Metal Industries A104/4 are being operated by
Sh.Mahesh Leela, Roshan Lal and Sh.Vinod. They all are in the production line of
same material and as per their own convenience & requirement, the managements
used to extract work from the concerned workman for their establishments and the
workman had never been issued any transfer letters and as such the workman was
never informed that what is his proper management and the management even had
never been maintaining proper service records of their employees nor any legal
facilities like appointment letter, attendance card, wage slip, leave book, bonus
disbursement record, attendance and wage register, casual leave, bonus, ESI and
PF were being provided to the workman and even ESI card which was being
furnished to the workman subsequently used to be changed, as the working place
of the workman used to be changed and on a fresh date of appointment , fresh ESI
Card was being given. The contribution towards PF was being deducted by the
management but no such detail was being provided to the workman rather the
management had been obtaining the signatures from their employees from time to
time with sole motive to utilize the blank papers as per their convenience and
subsequently when the workman alongwith other employees started demanding
legal facilities and proper implementation of the service facilities and also
Hans Raj vs M/s Golyan Metal Pvt.Ltd.
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demanded the salary as per minimum wages of their designation, the management
started threatening the workman alongwith other employees by stating that they
would be implicated in false cases and as such the workman alongwith other
employees of the management joined the union namely General Mazdoor Front
Union to fight for their demands. It is further stated that when the present
workman who was deputed with M/s Vinayak Metal Industries protested for all
such demands, the management got annoyed and some gunda elements at the
instance of the management attacked the workman and other coemployees on
26.8.2010 with the intention to harm them with bodily injury and even the
services of the workman were also terminated on the same day by the management
without any reason, without giving any notice in writing or any compensation. It is
further submitted that neither any domestic inquiry was conducted nor they were
chargesheeted before termination and as such aggrieved from this fact, the
workman issued a demand notice on 31.8.2010 through the Union but the
management did not give any attention to the notice. The workman thereafter filed
a complaint before the Dy.Labour Commissioner through Union where the
management appeared and stated that the management has already been closed
down w.e.f 31.3.08 and all the three managements have been merged in M/s
Golyan Metal Pvt.Ltd. which is presently running by the management. It is further
stated that after receiving the demand notice/ summon from the labour
department , the management called some employees including the workman by
issuing letter dt. 27.8.10, 30.8.10, 31.8.10, 11.9.2010 and even disbursed earned
wages to some of the workmen before the Labour Inspector but the workman was
not paid the earned wages and the workman even approached the management
after receiving said letters but the management threatened him and refused to take
him back on duty and thereafter the conciliation proceedings were initiated by the
Hans Raj vs M/s Golyan Metal Pvt.Ltd.
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workman which also failed and ultimately the matter was referred before this court
for adjudication and the workman has filed the statement of claim with a prayer
that award be passed in favour of the workman and against the management
thereby holding that the services of the workman were illegally and unjustifiably
terminated by the management and he is entitled to reinstatement with full back
wages and other consequential reliefs.
3 The management was served and it filed its written statement by taking
Preliminary Objections that the claimant started remaining absent unauthorizedly
from his duties w.e.f 26.8.2010 and thereafter letters were written by the
management on 27.8.2010, 30.8.2010, 31.8.2010, 11.9.2010, 30.9.2010,
12.10.2010 and 26.10.2010 but the claimant did not report for duty and thus it was
deemed by the management that the workman had abandoned the services with the
management of his own which fact was mentioned in the letter of the management
dt.26.10.10 and it is stated that from all these facts it is clear that the workman has
left the services of his own by abandoning his services and, therefore, no Industrial
dispute remains and the Labour Court has no jurisdiction to adjudicate upon the
claim filed by the workman and even otherwise the management has closed its unit
w.e.f 21.2.2011 and the workman otherwise is not entitled for any relief after the
date of closure. As far as merits are concerned, relationship is not disputed.
However, length of period is denied and it is denied that the claimant worked with
the management since 2000 or his last drawn wages were Rs.4200/p.m and it is
stated that the factory of the management came into existence on 1.4.08 only and,
therefore, question of the claimant concerned being employed with the
management prior to that does not arise. It is further submitted that the claimant
Hans Raj vs M/s Golyan Metal Pvt.Ltd.
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was working with the management w.e.f 1.4.08 and his last drawn wages were
Rs.5280/p.m and he ultimately abandoned his services w.e.f 26.8.2010. It is
denied that about 200 employees had been working for production in two shifts for
the management and it is submitted that in all the three factories about 6080
employees were employed. The management never used to take overtime from its
employees and whenever the overtime was being taken from the workman, the
workman was used to be paid overtime but as far as present workman is
concerned, he was never put to work for overtime and as such the question of his
being paid overtime charges does not arise. It is also submitted that M/s Anil Metal
Industries, M/s Vinayak Metal Industries and M/s Gohlyan Metal Industries were
closed w.e.f 31.3.08 and the workers employed therein had received their full and
final settlement of account and thereafter some of them have taken employment
with M/s Golyan Metal Pvt.Ltd i.e.the present management. It is further submitted
that the claimant was earlier employed with M/s Vinayak Metal Industries w.e.f
1.7.03 to 31.3.08 and he had taken his full and final settlement of account from the said firm. It is denied that the legal facilities were not being provided to the workman or that service record of the employees were not being maintained as alleged. It is also denied that ESIC benefits were being given to the workers after several years of their employment or that the management was deducting PF from the wages of the employees and was not providing the record pertaining to the said amount. It is further submitted that the claimant concerned had never demanded any legal benefits from the management as the management was providing all the benefits as applicable to it and it is further denied that the workman was deputed by the management at M/s Metal Industries, A104/9, Wazirpur Industrial Area, Delhi52 or that the claimant concerned with other coworkers opposed the illegal activities of the management or the management called some gunda elements Hans Raj vs M/s Golyan Metal Pvt.Ltd.
6/21inside the factory on 26.8.2010 or they threatened the claimant with dire consequences or that the management terminated the workman on the same day. It is further reiterated that the workman himself started remaining absent with other workers w.e.f 26.8.2010 and did not join despite writing various letters to the workman. It is denied that the workman alongwith other workmen approached the management after receiving the letters of the management , but the management threatened him and refused to take him back on duty and it is reiterated that the management had even asked the workman to come alongwith the Labour Inspector and join the duty but the workman did not join the management. Facts of the preliminary objections are again reiterated and it is prayed that the claim of the workman be dismissed.
4 Workman has not filed the rejoinder. After completion of the pleadings, following issues were framed on 17.1.2012: 1 Whether the workman has abandoned the services intentionally? OPM 2 Whether the management has closed its manufacturing activities permanently on 21.2.2011 , if so, its effects? OPM 3 Whether the services of the workman have been terminated illegally and/or unjustifiably by the management ? OPW 4 Whether the claimant is entitled to the relief claimed for? OPW 5 Relief 5 After framing up of the issues, the workman was directed to lead evidence. Workman has examined himself as WW1 and closed his evidence and thereafter the management has examined Sh.Vinod Aggarwal as M.W1 and closed its evidence.
6 I have heard the arguments and perused the record. My issuewise findings are as under:
Hans Raj vs M/s Golyan Metal Pvt.Ltd.7/21
ISSUE NO.2
7 Issue no.2 is being taken up first as the issue no.1 & 3 are the connected issues and would be disposed off simultaneously. The onus to prove the issue no.2 that it has closed its manufacturing activities w.e.f 21.2.2011, was upon the management. The management in the WS has submitted that the factories of the management situated at A104/12, Wazirpur Industrial Area, Delhi52, A104/9, Wazirpur Industrial Area, Delhi52 & A104/4, Wazirpur Industrial Area, Delhi52 are permanently closed w.e.f 21.2.2011 and the management has closed all his business activities. However, in para no.6 of the written statement on merits, the management had stated that factories M/s Anil Metal Industries, M/s Vinayak Metal Industries and M/s Gohlyan Metal Industries were closed w.e.f 31.3.08 and the workers employed therein had received full and final settlement of account. The workman in his statement of claim has stated that this fact was not in the knowledge of the workman earlier as it was never informed, and this fact came to the knowledge of the workman for the first time when the conciliation proceedings were initiated and the management has informed this fact to the Labour Inspector as well as to the workmen and prior to that all the factories were running and even now the management is running all these factories. M.W1 Sh.Vinod Aggarwal has deposed in terms of his statement by way of affidavit and has relied upon the documents i.e.M.W 1/ 2 to Ex.MW 1/ 4 which are the photocopies of the letter dt.26.11.10 for surrender of registration certificate under Central Excise for three factors, Ex.M.W 1/5 is the photocopy of letter dt.4.3.2011 to the ESIC regarding the closure of the factories/business activities of the management, Ex.M.W 1/6 is the photocopy of letter dt.8.3.2011 sent to EPF department , Ex.M.W 1/7 to Ex.MW 1/9 are photocopies of letter dt.4.3.2011 sent Hans Raj vs M/s Golyan Metal Pvt.Ltd.
8/21to Chief Inspector of Factories regarding the permanently closure of the factories of the management, Ex.M.W 1/10 to ExMW 1/ 12 are the photocopies of the return filed by the management under EPF Act for the year 2008, 2009 and 2010. He was cross examined by Ld.ARW and in cross examination, he denied that more than 200 employees were employed in the factory and he volunteered that there were around 60 employees in total and there used to be 8 hours shift working and no overtimes used to be taken. He denied the suggestion that the management has stated in the conciliation office that all the three firms have been closed and have been merged into Golyan Metal Pvt.Ltd. and also denied the suggestion that the management is still running these factories and he volunteered that all the factories have been closed and all the concerned department have been apprised of all these facts. The management to prove this issue has also cross examined WW1 but WW1 denied the suggestion that the management has permanently closed on 21.2.2011 and when asked as to why he is denying this fact and why he is saying that the management is running factories, he deposed that he has been saying so as he had been told by one Mistri. He volunteered that he has not seen personally that the management is still running.
8 As far as closure of the management w.e.f 21.2.2011 is concerned, Ld.ARW could not impeach the testimony of M.W1 nor he could impeach the documentary evidence with respect to giving information by the management to ESI, EPF department in connection of the factories and other concerned authorities regarding closure. Therefore, the issue no.2 is decided by holding that the management has been able to prove that M/s Golyan Metal Pvt.Ltd.has closed its functioning from 21.2.2011.
Hans Raj vs M/s Golyan Metal Pvt.Ltd.
9/21ISSUE NO.1 & 3 9 Onus to prove the issue no.1 was upon the management and it had to prove that the workman had abandoned his services and onus to prove the issue no.3 was upon the workman and it had to prove that his services have been terminated illegally and unjustifiably by the management. Since both these issues are inter related as if the management would have been able to prove that the workman had abandoned the services then services of the workman would not be deemed to have been terminated and if the management has not been able to prove that there is willful abandonment on the part of the workman then the issue that the services of the workman have been terminated illegally would stand proved. However, the issue no.1 would be discussed first.
The contention of the management is that the workman started absenting unauthorizedly from 26.8.2010 and thereafter the management has written letters dt.27.8.10, 30.8.10, 31.8.10, 11.9.10, 30.9.10, 12.10.10 and 26.10.10 which were Ex.as WW 1/MX1 to WW 1/MX7. Even otherwise, the said letters have not been disputed by the workman as in para no.13 he admitted that after receiving such letters, the workman visited the management and even on that date the workman was not allowed to resume the duty and was not taken back on duty rather they were threatened. Therefore, much stress can not be given about writing or posting of these letters . The management was even not required to prove that these letters have been written by the management or not once the receiving of such letter is admitted by the workman.
The fact which has to be considered to prove this issue is as to whether after receiving such letters, the workman did not go to join the duty of the management or whether the workman went there & the management did not allow him to do Hans Raj vs M/s Golyan Metal Pvt.Ltd.
10/21the work. Ld.ARM has argued that after 4 letters, there is another letter dt. 30.9.10 & 12.10.10 by which the workman was told to join the management and even they may come with the Labour Inspector so that the matter can be settled once for all. Ld.ARM has argued that once the management has written the letters to the workman and the workman has not turned up to join the duty and the management even otherwise can not do more than this effort to ask the workman to come with the Labour Inspector and in such circumstances, he would be deemed to have abandoned the job & there was no necessity for conducting any inquiry against the workmen who have been willfully absenting from duty. He has argued that even the workman could not give exact details about his alleged termination on 26.8.2010 and, therefore, he has not been able to prove his termination and for that he has relied upon Diamond Toys Co.(P) Ltd.vs Toofani Ram & Anrs. wherein it was interalia held by the Hon'ble High Court of Delhi that once the basis on which a workman claimed that he was terminated stands knocked out, then a heavy onus shifts to the workman to show that his services were actually terminated by the management and to show the reasons for termination and it was further held that the termination is a positive act of the management and the management has to do this act for some reasons".
10 Ld.ARW has not been arguing the matter and for that reason the court has not been able to get any assistance from the Ld.ARW. Court otherwise has perused the record. Here is the management who is claiming that the workmen have abandoned their job and it has written 7 letters to the workman individually. The workman in the statement of claim has alleged that the management has terminated his services on 26.8.2010 on which date the management had called some outside gunda elements and on demanding PF slip, he was beaten and Hans Raj vs M/s Golyan Metal Pvt.Ltd.
11/21thrown out of the factory. Claim of the management is that nothing has happened on 26.8.2010 rather the workman had started absenting from his services w.e.f 26.8.2010. Court has observed this particular fact that if the workman remained absent only on 26.8.2010 as is being highlighted in the present matter then in all circumstances, the management was supposed to wait for the workman atleast for few days so that it may inquire from the workman as to why he did not come on 26.8.2010 and there was no necessity at all to serve the workman or to send him the notice on 27.8.2010 i.e.on the next day itself thereby asking him as to why he is running absent and he should join. The question of 'running absent' does not arise in one day rather the language even it would have been so, it would have been that the workman was absent on 26.8.2010 i.e.one day and not that he was 'running absent' as he would have been running absent for so many days . The language of the letter dt.27.8.2010 is otherwise not to the effect that the workman was running absent unauthorizedly rather the word' authorized absence' has been used. The management should have waited atleast for 45 days so as to inquire as to why the workman had not come on 26.8.2010. . On inquiry raised by the court, Ld.ARM has stated that letter was written on 27.8.10 itself as in the connected matter, the date of termination is 9.7.2010 & the management was facing such threats even in other cases and as such it was issued on very next day. Even if , the contention of the management is accepted then also the court is of the opinion that if no such incident as alleged would have happened on 26.8.2010 then there was no necessity with the management to write a letter dt.27.8.2010 which otherwise is admittedly received by the workman. Therefore, something definitely has happened on 26.8.2010 and if we turn to the evidence, the management has specifically asked the workman as to what happened on 26.8.10 and the workman has replied that he went to the factory for duty on 26.8.10 and he was not taken Hans Raj vs M/s Golyan Metal Pvt.Ltd.
12/21on work. He however volunteered that some gunda elements were present there and only this much had happened. Therefore, some sort of altercation definitely had taken place on 26.8.2010 which compelled the workman not to come on duty on 27.8.2010 or which compelled the management to issue such letter to the workman. In further cross examination, the workman denied the suggestion that nothing like this happened and this fact had been concocted by him or by Union. He further deposed that he did not make any police complaint regarding this incident. It is argued by Ld.ARM that version by the claimant in the statement of claim and version which is being stated in the evidence are contradictory as he has not stated that he had been terminated on 26.8.2010 and, therefore, termination has not been proved. The Court does not find any merit in the contention as fact has been categorically stated in the statement of claim. If the management gives the suggestion that nothing happened on this date then there was no necessity at all to serve the notice upon the workman on 27.8.2010 i.e. next day itself. Therefore, the management is concealing something with respect to incident dt.26.8.2010 and this is irrespective of the fact whether the management called some gunda elements or not and whether there was some police complaint regarding this fact by either of the party or not. There are number of employees who have been stating such facts with respect to the incident as happened on 26.8.10 and there is no similar statement of the workman. Had there been a common version and all the workmen should have been saying same words, it might lead to draw an inference as they have been tutored. Minor contradictions do take place from person to person which is a recognized principles of law of appreciating the evidence. Even in the proceedings where strict rules of code of civil procedure and Evidence Act are applicable, minor contradictions are permitted, rather it has been held in various judgments that the minor contradictions are the proof of their being truthful where Hans Raj vs M/s Golyan Metal Pvt.Ltd.
13/21similar version are not believable and it may be the concocted versions. Further, the civil liabilities are decided on the preponderance of probabilities and it is only the State cases where the prosecution is required to prove the guilt of the accused persons beyond reasonable doubts and the court must say that even in criminal matters, the minor contradictions are given due recognition as per law. Therefore, the fact that nothing happened on 26.8.2010 as have been suggested by the management can not be believed.
11 Now, coming to the facts again that after 26.8.2010 or after writing the letters 27.8.2010, 30.8.2010 & 11.9.2010 whether the workman went to join the duty or not. M.W1 in para no.16 of the affidavit submitted that letters were sent to the workers and also to the Labour office with a request that workers may kindly be sent alongwith Labour Inspector for joining their duties. M.W1 in cross examination denied the suggestion that the workman came for duty after receiving the letters or the management refused to take him back on duty and he also denied that even after the management asked the workman to report for duty before conciliation officer, the workman again reported the management and the management refused to take him back on duty. It is an admitted fact that the workmen are not working with the present management and there is rival contentions of both the parties. In these circumstances when there is rival contention of both the parties , court is of the opinion that judgment as relied upon Ld.ARM to the effect that when the ground of termination has been knocked out by the management then onus to prove the termination of the services of the workman and in such case the inquiry is not required to be held, is not relevant in the present facts and circumstances as the management has not been able to knock out the alleged ground of termination of the services of the workman. If the workman would not have asserted in the statement of claim that he had gone to the Hans Raj vs M/s Golyan Metal Pvt.Ltd.
14/21management after receiving the letters as sent by the management, contention of Ld.ARM would have been well found as it was held in judgment tiled as Diamond Toys Co.(P) Ltd.vs Toofani Ram & Anrs. (Supra) 12 But here the claim of the claimant from the very beginning is that they had gone to the management to join the duty after receiving the letters written by the management and also when an effort was made by the conciliation officer but they were not taken back on duty. As far as contention of the management that workers were asked to join the duty with Labour Inspector is concerned, court is of the opinion that if the workman has not come despite such letters then an equal effort could have been made by the management also to get the Labour Inspector deputed and settle the matter. The management has given the earned wages to some of the workers as is being reflected in the WS and it could also have taken such effort in this matter also. When there is a dispute that the workmen are not joining despite asking them, then it was incumbent duty of the management to hold inquiry against such an employee and court in arriving to this decision is taking support with the judgment titled as Express Newspapers Pvt.Ltd. vs
1.Michael Mark and anr.and 2.G.Sreedharan & ors AIR 1963, Supreme Court 1141 where it was held that:
"where the workers had gone on strike and the management has written a letter to its workers interalia stating that the workers should return to the work by a certain date failing which they will be deemed to have abandoned their services and their names would be removed from the muster rolls. Following the issuance of such notice to the workers, the workers did not return to their work with the management on the date which was so mentioned in the notice and the management ultimately removed their names from muster rolls and in such circumstances , the Hon'ble Supreme Court has held that such removal of the names of the workers from the pay rolls amounts to writing another unilateral contract by the management and the same is nothing less than termination of the Hans Raj vs M/s Golyan Metal Pvt.Ltd.15/21
services of the workman and ultimately the workers were held to be entitled for compensation".
13 In this case also, the situation appears to be identical and merely by writing a letter and without conducting any inquiry against the workman regarding his absence from duty , in the considered opinion amounts to termination of the services of the workman. Accordingly, it is held that the management has failed to prove that the workman has abandoned his services.
14 Now, coming to the issue of termination. Some of the facts have already been discussed with respect to termination while discussing the facts hereinabove and as far as other aspects are concerned, they would be discussing now. 15 It is categorically stated by the workman that he had been terminated on 26.8.2010. The management although has not taken any objection that the workman has not completed continuous 240 days with the management in the preceding year from the alleged date of his termination in the preliminary objections yet in para no.16 of the WS, the management somehow stated that the workman has not completed continuous 240 days with the management during the preceding year from the alleged date of his termination. Since this is one of the legal issue , it should have been taken as preliminary objection but nevertheless it would be disposed off as the court feels it necessary to dispose off this controversy as well.
16 Before discussing this issue, there is yet another important aspect i.e.whether all the firms have functional integrality as is being contended by the workman or whether they are distinct & separate firm as is being alleged by the management. However, before this fact is appreciated, it is necessary to observe as to what is the constitution of all the firms i.e.as to whether all the firms are one and the same thing and are given different names for the convenience of their Hans Raj vs M/s Golyan Metal Pvt.Ltd.
16/21business tactics or are such factory/factories infact are separate one. It appears to the court that the management is using the word 'factories' and 'management' as synonymous to each others. Some time it claims that managements M/s Anil Metal Industries, M/s Vinayak Metal Industries and M/s Gohlyan Metal Industries were closed on 31.3.08 and at some other place, it states that the factories at premises no.A104/12, Wazirpur Industrial Area, Delhi52, A104/9, Wazirpur Industrial Area, Delhi52 and A104/4, Wazirpur Industrial Area, Delhi were permanently closed on 21.2.2011. In the WS, it is also stated that the factory of the management M/s Golyan Metal Pvt. Ltd. came into existence on 1.4.08 & at other places, it submits that all the factories are different factories. Even in the evidence, M.W1 deposed that there were 6080 persons working in all the three factories. If the factories are different, M.W1 can not depose about three different firms and if the managements are same then 'factories' can be used a synonym to the management. The management in para no.6 has stated that the management M/s Anil Metal Industries, M/s Vinayak Metal Industries and M/s Gohlyan Metal Industries were closed w.e.f 31.3.08 and the workers employed therein had taken their full and final settlement of account and some of them had taken employment with M/s Golyan Metal Pvt.Ltd.and in para no.2 of the preliminary objections, the management is claiming that all the factories have been closed w.ef 21.2.2011. Court has put specific query from Ld.ARM as to how he has been able to reconcile these facts as if M/s Anil Metal Industries, M/s Vinayak Metal Industries and M/s Gohlyan Metal Industries were closed w.e.f 31.3.08 then what is the factual position with respect to closing these factories on 21.2.2011 and also to explain the fact as to whether these factories were running in between the period from 31.3.08 to 21.2.2011 in the common name of M/s Golyan Metal Pvt.Ltd.or still they were Hans Raj vs M/s Golyan Metal Pvt.Ltd.
17/21working with the different names as there is no evidence on record with respect to closure of factories by the management on 31.3.08 on the court file. No specific explanation has come on record.
17 Keeping in view all these facts, the contention of the workman appears to be correct that all the three factories are controlled by the management and the service of the workman were being taken by the management as per its convenience and requirement. It also primafacie appears that there were functional integrality in all the managements and, therefore, all the workmen would be deemed to be in service of the management if he had been in service of any of the firm prior to 1.4.08. Court is also of the opinion that until and unless the management issues a transfer letter that from a particular date, a particular worker has been transferred in a particular firm then generally the worker/claimant may not have any access to the internal administrative system of the management to ask as to under whom he is working. It is not even expected from a labour that he would be asking the management prior to joining that with which particular person or firm he is employed with or who would be giving him salary or who is the owner/Director of the management. There is no access of employee to the internal administrative system of the management so as to ask as to whether the management has changed its name or whether it has not changed its name and how the management is administrating its internal affairs. Contention of the management as it was observed while disposing off the issue no.1 have not been proved by the management that if M/s Anil Metal Industries, M/s Vinayak Metal Industries and M/s Gohlyan Metal Industries were closed on 31.3.08 then who was running three different firms and which factories were closed on 21.2.2011 on the three addresses given by the management. 18 Now, coming to the issue with regard to continuously working for 240 days Hans Raj vs M/s Golyan Metal Pvt.Ltd.
18/21of the workman with the management in the preceding 12 months from the alleged date of his termination. It is argued by Ld.ARM that keeping in view the judgment titled as The Range forest officer vs S.T Hadimani 2002 LLR 339 Supreme Court of India wherein it was held that :
"It is for the claimant/workman to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination and filing of affidavit can not be regarded as sufficient evidence for any court or Tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year". Once the management has stated that the workman has not completed continuous 240 days during the preceding year from the alleged date of his termination then the workman is duty bound to prove the same.
19 In the present case, the management in para no.6 of the WS has stated that this workman was earlier working with M/s Vinayak Metal Industries from 1.7.03 to 31.3.08 and thereafter he had taken full and final settlement account. Management had not filed any document on court record to prove that the workman was given any appointment letter on 1.7.03 when he was initially appointed with M/s Vinayak Metal Industries . Management has also not filed on record the document with respect to the fact that the workman has settled the matter and had taken full and final settlement account on 31.3.08. The management again has not filed any document that this workman had worked from 1.7.03 to 31.3.08 and then had taken full and final settlement. Keeping in view all these facts, it appears that the workman had been working with the management atleast w.e.f 1.4.08 if not from 2000 as is being alleged by the workman in the statement of claim.
20 That still is of no help while disposing off controversy with respect to Hans Raj vs M/s Golyan Metal Pvt.Ltd.
19/21completion of continuous 240 days with the management as number of 240 days in the preceding year has only to be calculated from the alleged date of his termination. The alleged date of termination in this matter is 26.8.2010. Management has stated that the workman was working with the management w.e.f 1.4.08 and then it is contended that he started remaining absent from 26.8.10. It is nowhere the pleadings of the management that from 1.4.08, the workman had ever been running absent or was on leave unauthorizedly or was somehow absent from duty for a considerably long period. It is not the case of the management at all. Until and unless the management contends that although the workman was working with the management from 1.4.08 yet he was irregular in his service or he used to remain absent without any intimation then in all probability, he is deemed to be in continuous service and even if he is absent & his leaves have been sanctioned subsequently for the period when the workman was absent then also such absence if explained is counted towards regular service. Therefore, contention raised by the management is well found only to the case when the management would plead that the workman was running absent & then the workman would have to prove that he had completed 240 days of continuous service with the management. If the management itself is admitting that the workman joined the management on 1.4.08 & started remaining absent w.e.f 26.8.10 only, then it amounts to admission that the workman has been working continuously with the management upto 26.8.2010.
21 Now, coming to the termination aspect. The incident of 26.8.10 has already been explained. It is being corroborated with the statement of claim as filed by the claimant and no inquiry has been held by the management after the fact that the workman alleged that he had reached the office after having received the letters and he was not allowed to resume the duty. From all such facts, the court is of the Hans Raj vs M/s Golyan Metal Pvt.Ltd.
20/21opinion that the workman has been able to prove that his services have been terminated illegally by the management. Issue no.1 & 3 are answered accordingly. ISSUE NO.4 22 Court while disposing off the issue no. 1 & 3, it has been held that the workman has been terminated illegally on 26.8.2010 and the management has been able to prove that the management has closed its manufacturing activities on 21.2.2011. Once the management has closed its factories , the reinstatement of the workman is not possible and, therefore, compensation would be better option. 23 Workman in his cross examination has deposed that he is doing Mazdoori work in his village. He further deposed that he searched for job in Wazirpur Industrial Area but did not get the job. These facts are sufficient to opine that the workman has not remained unemployed for unlimited period. As far as the amount of compensation is concerned, the court is of the opinion that in such cases the lump sum compensation would meet the ends of justice. The court also find support from the following judgments:
1 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 lump sum amount of Rs.50,000/ as compensation in lieu of reinstatement and back wages towards full and final settlement of all claims of the workman was an appropRaite relief'.
2 In Kishan Lal and 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 lump sum
compensation of Rs.40,000/ towards full and final settlement of all claims of each of such workmen' Hans Raj vs M/s Golyan Metal Pvt.Ltd.21/21
24 Keeping in view the totality of the facts and circumstances, the court is of the opinion that the interest of justice would meet if a lump sum compensation to the extent of Rs.25,000/ is awarded to the workman without referring any opinion on the fact with respect to the allowance received by the workman on closure of the factory. The management is directed to pay the awarded amount from date of award within a period of one month, failing which this amount shall carry a simple interest @ 8% per annum till realization.
A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Ardeea concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
ANNOUNCED IN OPEN (S.S.MALHOTRA)
th
COURT ON 4 APRIL , 2013 PRESIDING OFFICER
LABOUR COURTIX/KKD COURTS:DELHI
Hans Raj vs M/s Golyan Metal Pvt.Ltd.
22/21
ID no.271/11
25.2.2013
Present: Present: None
Put up for orders on 14.3.2013
(S.S.MALHOTRA)
POLCIX/25.2.2013
14.3.2013
Present: None
No time left. Put up for orders on 30.3.2013.
(S.S.MALHOTRA)
POLCIX/14.3.2013
30.3.2013
Present: None
Order is in dictation. Put up for the same on 4.4.2013
(S.S.MALHOTRA)
POLCIX/30.3.2013
Hans Raj vs M/s Golyan Metal Pvt.Ltd.
23/21
ID no.271/11
4.4.2013
Present: Workman in person.
Vide my separate award, a lump sum compensation to the
extent of Rs.25,000/ is awarded to the workman. Accordingly, the management is directed to pay the awarded amount from date of award within a period of one month, failing which this amount shall carry a simple interest @ 8% per annum till realization.
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.
(S.S.MALHOTRA) POLCIX/4.4.2013 Hans Raj vs M/s Golyan Metal Pvt.Ltd.
24/21Hans Raj vs M/s Golyan Metal Pvt.Ltd.