Delhi District Court
Sh. Narayan Dutt Sharma vs M/S Prachi India Pvt. Ltd on 5 July, 2023
IN THE COURT OF Ms MONIKA SAROHA
PRESIDING OFFICER, LABOUR COURT NO. 02,
ROUSE AVENUE COURT COMPLEX: NEW DELHI
LIR No. 2710/2019
CNR No. DLCT13-006534-2019
Date of institution 01.11.2019
Date of Award 05.07.2023.
Sh. Narayan Dutt Sharma,
S/o Sh. Subash Chandra Sharma,
Mob.No. 9310243080,
R/o H. No. 1150, Gali No. 8, Ward no.16,
Extension Balram Nagar, Ghaziabad, U.P.
Through: Pragatisheel Mazdoor Sangh (regd.),
I-161, Karampura, New Delhi-110015. ..... Workman.
Versus
M/s Prachi India Pvt. Ltd.
25/26, Ashoka Park Extension,
East Punjabi Bagh, Delhi-110026. .... Management.
AWARD
1.Vide this award, I shall decide the reference dated 23.09.2019 sent to this court by the Joint Labour Commissioner, District West, Labour Department, NCT of Delhi, bearing no. F.3 (418)/19/Ref./wd/Lab./1435 with the following terms of reference:
"Whether the services of workman Sh. Narayan Dutt Sharma S/o Sh.Subash Chandra Sharma have been LIR No. 2710/2019 Page No.1 /14 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?"
1.1 Notice of this reference was issued to the workman and he appeared alongwith his authorised representative and filed the statement of claim.
CLAIM OF THE WORKMAN
2. According to the workman, he was employed as a 'DTP Operator' with the management since 01.06.2009. He continuously worked at the same designation with the management till 20.05.2019 at his last drawn salary of Rs. 21,000/- (Rupees Twenty One Thousand) per month but suddenly on 20.05.2019, the management unlawfully terminated his services without paying him the earned wages for the month of May 2019 and without informing him of any reason for the sudden termination.
2.1 Aggrieved of this action of the management, on 10.06.2019 workman sent a demand notice to the management but the management neither gave any reply nor reinstated the workman on duty. Later, the workman filed his complaint before the Assistant Labour Commissioner. On the basis of oral agreement arrived before the Labour Commissioner, the workman joined again with the management on 14.08.2019. However, on 21.08.2019, the management again unlawfully terminated the services of the workman without any notice. The workman then approached the Conciliation Officer also with his written grievance. After the conciliation proceedings failed, the present reference was sent to this court.
LIR No. 2710/2019 Page No.2 /142.2 On the basis of the above averments in the claim, notice was issued to the management. The AR of the management appeared and written statement was filed by the management.
REPLY OF THE MANAGEMENT
3. In its reply, the management admitted the employer
- workman relationship but took the stand that the workman was appointed as Computer Operator by it on 01.10.2011. It was further stated that the workman was provided all the legal facilities like ESI, PF, Bonus, Casual leave, earned leave etc. According to the management, the services of the workman were neither suspended nor terminated by the management and the wages for the month of May 2019 had been duly paid to him, however, the workman himself abandoned his duties from 18.05.2019 without any prior intimation to the management. The management then even tried to contact the workman and sent him notices but the workman never resumed his duties. However, later, when the workman approached the concerned labour authorities, he was again allowed to work by the management from 14.08.2019 onwards. But, the workman again abandoned his duties from 23.08.2019 without any reason. Thus, the case of the management is that the workman is not entitled to any relief in these proceedings for he is himself guilty of abandoning his duties.
ISSUES FRAMED
4. On the basis of the pleadings and the reference the following issues were framed by the Ld. Predecessor on LIR No. 2710/2019 Page No.3 /14 22.09.2021.
(1) Whether the claimant had worked in the management since 01.06.2009 till the date as mentioned in the statement of claim? OPW.
(2) As per the terms of reference? OPW
(3) Whether the claimant is absenting from
duties w.e.f. 18.05.2019? OPM
(4) Relief.
After the issues were framed the matter was listed for workman's evidence.
WORKMAN'S EVIDENCE
5. The workman appeared in the witness box as the sole witness and filed his evidence by way of affidavit. In this affidavit, the averments of the claim, as mentioned above were reiterated. The workman relied upon the following documents:-
(1) Ex. WW1/1.- Complaint dated 20.05.2019 given to Assistant Labour Commissioner.
(2) Ex. WW1/2. - Demand notice dated 10.06.2019 sent to management by the workman.
(3) Ex. WW1/3 -Postal receipt regarding sending of demand notice.
(4) Mark WW1/X - Complaint dated 22.08.2019, filed before the Conciliation Officer.
(5) Ex. WW1/4 -Statement of claim, filed before the Conciliation Officer.LIR No. 2710/2019 Page No.4 /14
5.1 The workman was cross-examined at length by the AR of the management but he stood firm on his testimony. No other witness was examined and upon request, the evidence of the workman was closed. The matter was then listed for management's evidence.
MANAGEMENT EVIDENCE
6. Management examined Sh. Joginder Pal Arora (Accountant) as MW1 in the witness box as it's sole witness and filed his evidence by way of affidavit. In this affidavit, the averments of the written statement were reiterated. The MW1 relied upon the following documents:-
(1) Ex. MW1/1 - Appointment / offer letter of the workman.
(2) Mark A Form 12 of ESI (3) Mark B (collectively) Photocopies of letter dt.
17.11.2014, 02.12.2014, 02.12.2014,18.12.2014 and 02.01.2015.
(4) Ex. MW1/4 Copy of letter dt. 28.05.2019 addressed to workman.
(5) Ex. MW1/5 Copy of reply dt. 19.06.2019. (6) Ex. MW1/6 (collectively) Copy of letter dt.
10.09.2019 issued to the workman by the management alongwith Bank Transaction report.
(7) Ex. MW1/7 Copy of wages register. (8) Ex. MW1/8 Copy of pay register. (9) Ex. MW1/9 Copy of pay / wages slip (colly.). LIR No. 2710/2019 Page No.5 /14 (10) Ex. MW1/10 Copy of leave record (colly.). (11) Ex. MW1/11 Copy of monthly status report of work duration (colly.) (12) Ex. MW1/12 Copy of statement of account of workman (colly.). (13) Ex. MW1/13 Certificate u/s 65 B of Indian Evidence Act. (14) Ex. MW1/4 Copy of Board Resolution dt. 16.03.2020. (15) Ex. MW1/5 Copy of Board Resolution dt. 02.09.2022.
This witness was cross-examined at length by the AR of the workman. No other witness was examined and upon request, the evidence of the management was closed. The matter was then listed for final arguments.
ARGUMENTS
7. The AR of the workman advanced detailed arguments on 24.05.2023 which were heard by this court. Despite opportunity, none appeared for the management for advancing final arguments. However, written submissions filed by the management were already on record and therefore, the matter was listed for orders.
ISSUEWISE FINDINGS
8. The issuewise findings on the basis of arguments advanced, written submissions filed, evidence led and all material on record are disccused in details in the sub-paragraphs LIR No. 2710/2019 Page No.6 /14 that follows:-
Issue no.1- Whether the claimant had worked in the management since 01.06.2009 till the date as mentioned in the statement of claim? OPW.
8.1 The onus to prove this issue was upon the workman.
In the written statement, it is not denied by the management that the workman was working with it as a Computer Operator since 01.10.2011. (But, according to the workman, he was working as an DTP Operator since June, 2009). The workman did not place on record any document to show that he was working with the management since June, 2009. No co-worker was examined to show that the workman was working since 2009. Thus, except for the oral bald testimony of the workman which is pitted against the similarly placed chief examination of the management witness where it is stated that the workman joined on 01.01.2011, there is no material on record to hold that the workman was working with the management since 2009. In such circumstances, it cannot be said that the workman has established that he was employed with the management since 01.06.2009. The workman thus failed to discharge the onus upon him to prove his date of joining.
8.2 However, there seems to be no dispute regarding the last date of employment of the workman. According to the workman, he lastly worked till 22.08.2019 and even according to the management, he worked till 22.08.2019. In between, (of course) it is the case of both the parties that the workman was not working with the management from 19.05.2019 till 14.08.2019. The reasons for not working are of course different. According LIR No. 2710/2019 Page No.7 /14 to the workman, he was not allowed to work between this period of 19.05.2019 till 14.08.2019, whereas, according to the management, the workman did not report for his duties during this period. However, both the parties agree that on 14.08.2019, the workman again started working with the management pursuant to an agreement before the Labour Authorities, where it was agreed that the workman will be allowed to work for the management from 14.08.2019 onwards.
8.3 Therefore, this court holds that the workman failed to establish that he started working in the management from 01.06.2019, therefore, it is held that he started working with the management from 01.10.2011 only as admitted by the management. It is further held that the workman worked with the management from 01.10.2011 till 18.05.2019 continuously. Further, pursuant to an agreement between the parties, the workman also worked from 14.08.2019 till 22.08.2019.
8.4 At this stage, while deciding this issue, it is not required to dwell upon the reasons why the workman was not working with the management from 18.05.2019 till 14.08.2019 or after 22.08.2019. Whether, he was not working as he had abandoned his job or whether he was illegally terminated and therefore was not allowed to work with the management shall be discussed in the findings given in the issues that follow. Thus this issue is partly decided in favour of the workman and partly in favour of the management.
Issue No. 2 :- As per the terms of reference?OPW 8.5 The terms of the reference are as follows:
LIR No. 2710/2019 Page No.8 /14"Whether the services of workman Sh. Narayan Dutt Sharma S/o Sh.Subash Chandra Sharma 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?"
What needs to be decided in this issue is whether the services of the workman were terminated illegally and/or unjustifiably by the management. To discharge the onus to establish this issue, workman appeared in the witness box and deposed that he was not allowed to join his duties by the management after 20.05.2019. Despite his cross examination, he remained firm on his stand. The demand notice dated 10.06.2019 sent by him to the management alongwith the speed post receipt is on record as Ex. WW1/2 and Ex. WW1/3. As the address mentioned in the demand notice was not disputed by the management, in view of the postal receipts in the ordinary course, the notice shall be deemed to have been served upon the management. Both these documents, show that the workman was keen on re-securing employment with the management and that is why he had written to them seeking reinstatement with full back wages.
8.6 Later, the workman approached the Labour Authorities also for seeking his re-employment and back wages from the management. In proceedings before the Labour Authorities, the management indeed offered to, and did allow workman to work with it.
8.7 The act of the workman of sending a demand notice at the admittedly correct address of the management, approaching the Labour Re-conciliation Officer/Commissioner LIR No. 2710/2019 Page No.9 /14 with his grievance and then agitating the matter and pursuing it before this court for last almost 04 years now shows that he was and is keen on working with the management. What other evidence can a worker lead to show that he was always keen on working but was not allowed to report for his duties by the management?
8.8 On the other hand, the management did not lead any evidence to show that the workman voluntarily abandoned his duties. Admittedly, no inquiry was conducted by the management to hold the absence of the workman as 'unauthorized'. The management never sent any notice to the workman asking him to immediately rejoin his duties. The management placed on record documents Ex. MW1/4, MW1/5 and Ex. MW1/6 to show that it had indeed written letters to the workman asking him to rejoin his duties, but no document to show that these letters were actually ever posted to the workman has been filed by the management. No speed post receipt, no courier receipt, no AD card, has been filed on record to show that these letters were ever sent to the workman. Thus, there is nothing on record to hold that these letters were ever posted to the workman.
8.9 Further, it is not mentioned anywhere in the written statement or in the entire evidence of the management as to who prepared these letters i.e. what is the name and designation of the person who signed these letters. The management is also silent as to who posted these letters or when they were posted ( if at all). Thus, mere photocopies of some letters typed on the letter head of the management are not sufficient to show that indeed such letters were ever posted to the workman, much less received by LIR No. 2710/2019 Page No.10 /14 him. Such, self serving letters which can be prepared by the management any time and no record of their preparation or posting is on record, do not in any manner establish the bonafide of the management or its intention to allow the workman to work with it.
8.10 Also no evidence was led to show that the management tried to contact the workman by calling him telephonically or visiting his residence. In the cross examination, MW1 Sh. Joginder Pal Arora baldly stated that the management had made telephonic calls to the workman regarding rejoining his duties. However, who made such a call ? when such a call was made? what was the response to the call ? none of this has been mentioned by the management anywhere and neither any supporting evidence to that effect has been filed. After all, the workman had admittedly worked with the management for at least eight long years regularly. If he suddenly stopped coming without any information, the management was bound to make an inquiry to declare his absence 'willful and unauthorized' but, it is the case of the management itself that no such inquiry was ever made.
8.11 Further, when the stand taken by the management in the written statement was that the workman suddenly stopped coming for his duties, it could have easily filed on record and relied upon the attendance record maintained by it to show that the averments of the workman that he was not allowed to join his duties since 23.08.2019 were false. However, for reasons best known to it, the management did not file any such attendance record, even though, it had received the notice of these LIR No. 2710/2019 Page No.11 /14 proceedings within 18 months of the alleged incident and could have very well preserved the attendance record to be produced at appropriate stage. That attendance record could have perhaps proved that the services of the workman were not terminated on 23.08.2019 and rather his name was mentioned diligently in the attendance record for some time but he was continuously absent from his duties after 23.08.2023 and thus his attendance record showed him to be so 'Absent'. The attendance record and muster roll for June, July, August and September 2019 ought to have been filed by the management to show that while the name of the workman was continuously reflected in the muster roll and the attendance record, the workman did not report to join his duties. The same was not done by the management. Non filing of such a record by the management, which was easily available with it, further creates doubt on the stand taken by it.
8.12 Thus, this court is satisfied that the workman has established that he was unlawfully terminated from the service. Further, in view of the discussion above, this court is also satisfied that the workman has duly proved that while he wanted to continue his employment, the same was unlawfully terminated by the management, without any notice to him, without any enquiry and without any compensation. This issue is accordingly decided in favour of the workman and against the management.
Issue no. 3: Whether the claimant is absenting from duties w.e.f. 18.05.2019? OPM.
8.13 This issue and issue no.2 are intermingled and are LIR No. 2710/2019 Page No.12 /14 essentially the same. In view of the findings given in issue no.2 above, it is held that the management failed to show willful absentism on the part of the workman from 18.05.2019. This issue is accordingly decided in favour of the workman and against the management.
8.14 Relief :-
Coming now to the relief to which the workman is entitled. Considering the facts of the case, the age of the workman today, the length of his service, long pendency of this matter, his last drawn wages, this court is of the view that ends of justice would be met by granting lump sum compensation to the workman instead of reinstatement. Thus, I award a lump sum compensation of Rs. 2,00,000/- (Rupees Two Lakhs only) in favour of the workman and against the management, which includes litigation expenses. The management is directed to pay the said amount within a period of one month from the date of publication of this award. In case of non-payment, interest @ 6% per annum from the date it becomes due, till the time it is realized, shall be paid by the management to the workwoman. Reference is answered accordingly.
9. Accordingly, the statement of claim as filed by Narayan Dutt Sharma against M/s Prachi India Pvt. Ltd. is hereby allowed.
10 The attested copy of the award be sent to the Office of the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication, as per rules.
LIR No. 2710/2019 Page No.13 /1411. Judicial file be consigned to Record Room, as per rules, after due compliance.
Announced in the Open Court
today on 05.07.2023 MONIKA SAROHA
Presiding Officer, Labour Court -2
Rouse Avenue Courts, New Delhi.
LIR No. 2710/2019 Page No.14 /14