Delhi District Court
Harjeet Kapur S/O. Sh. Devraj Kapur vs Fresh Address: on 14 August, 2015
Harjeet Kapur Vs. M/s. Tarun Builders Pvt. Ltd. DID No. 126/13
BEFORE LABOUR COURT - XI: KARKARDOOMA COURTS: DELHI
PRESIDING OFFICER: Mr. ANAND SWAROOP AGGARWAL
(Delhi Higher Judicial Service)
(Additional District & Sessions Judge, Delhi)
DIRECT INDUSTRIAL DISPUTE (DID) No. 126/13
UNIQUE CASE ID No. 02402C0209252013
In the matter of:
Harjeet Kapur s/o. Sh. Devraj Kapur
R/o. A77, Freedom Fighter Colony, Saket,
New Delhi - 110008.
C/o. Bhartiya Kranti Iron & Steel Mazdoor Sabha,
T248, Mangolpuri, Delhi83.
... Workman
Vs.
M/s. Tarun Builders Pvt. Ltd.
H. No. 20, Bali Nagar (Basement)
New Delhi 15.
Fresh Address:
M/s. Tarun Builders Pvt. Ltd.
H 20, Bali Nagar (Basement)
New Delhi 15. ... Management
Date of institution : 02.07.2013
Date of reserving for award : 14.08.2015
Date of award : 14.08.2015
AWARD
1.CASE OF THE WORKMAN AS PLEADED IN STATEMENT OF CLAIM.
(i) The workman was working with the management on the post of 'Filed Man' (sic)
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at the last drawn monthly wages Rs.22000/ p.m. since Jan. 1990. Management did not issue any appointment letter to the workman.
(ii) During the course of employment the workman did not give any chance of complaint to the management, so his service record was neat, clean and unblemished.
(iii) Management had taken work from the workman for 12 hours per day but the management did not pay any overtime wages. During the employment the workman used to demand the legal facilities i.e. Appointment Letter, Attendance Card, to maintain all record, Payslip, Leave encashment, HRA, Leave Book, ESI, PF, Bonus, Casual Leave, Overtime wages, earned wages for the month of June 2012 etc. from the management but the management did not provide the same to the workman.
(iv) Management started to get rid of the workman but failed and on 01.08.2012, management illegally terminated the services of the workman without any rhyme or reason, without paying the earned wages for the months of June and July 2012 to workman, without giving any notice pay.
(v) Management illegally terminated the services of workman without paying the service compensation and without giving any prior notice, so the management had violated the provisions of section 25 F and G of the Industrial Disputes Act, 1947.
(vi) Workman filed a complaint before the Assistant Labour Commissioner, Karampura, Delhi against the management and, on this complaint, the Labour Inspector visited the management and gave the advise to management to reinstate the workman in service and Labour Inspector asked the management to produce the record of employees but management neither reinstated the workman not produced any record of the Page 2 to 11 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:14.08.2015 Harjeet Kapur Vs. M/s. Tarun Builders Pvt. Ltd. DID No. 126/13 employees.
(vii) The management had taken 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 but the workman had put his signature on the same as workman was very badly in need of job / employment as well as in the good faith and all blank voucher are still in the possession of the management and there is each and every apprehension of misuse of these documents by the management at any stage.
(viii) The workman filed the statement of claim before the Assistant Labour Commissioner, Karampura, New Delhi against the management for reinstatement in service with full back wages but no proper settlement could be arrived between the parties. Hence this reference.
(ix) Since the date of illegal termination till now the workman regularly visited at the office of management and workman requested to management to take back on duty on the same post but the management did not allow to workman to join duty on the same post.
(x) Workman searched for job at many places but workman did not find any work, so workman is unemployed since the date of illegal termination and workman wants to join duty with the management on the same post with full back wages with all attendant benefits.
With these averments, workman prayed for an award of reinstatement with full back wages with all attendant consequential benefits in favour of the workman and against the management. Further to pass any order of earned wages for the months of Page 3 to 11 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:14.08.2015 Harjeet Kapur Vs. M/s. Tarun Builders Pvt. Ltd. DID No. 126/13 June and July 2012 in favour of workman and against the management.
2. STAND OF THE MANAGEMENT AS PLEADED IN THE WRITTEN STATEMENT OF DEFENCE.
Management in the WS, while denying the case as pleaded by workman in the statement of claim, pleaded that workman left the job on his own and the workman had not completed 240 days in his service with management. Management pleaded that workman stopped coming for his duty without prior permission or authorization and workman abandoned the job on his own w.e.f. 01.08.2012. As submitted, management sent call letters on 04.08.2012, 13.08.2012 and 21.08.2012 to the workman but workman neither sent any information nor attended the duties. As per management the provisions of section 25F and G are not applicable in this case as neither the services of workman have been terminated nor workman has been retrenched. Management admitted that workman was its employee and his last drawn salary was Rs.22000/ per month. Management also submitted that workman took advance of Rs.1,50,000/ from the management which workman has not paid to the management. As per management nothing is due to the workman from the management. Also management submitted that workman has filed this claim only to harass the management and to extract illegal huge amount to which workman is not entitled at all and workman is gainfully employed and workman has got better job elsewhere.
3. REJOINDER In the rejoinder, workman denied the stand taken by management in its WS and reaffirmed the averments made in statement of claim.
4. ISSUES Page 4 to 11 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:14.08.2015 Harjeet Kapur Vs. M/s. Tarun Builders Pvt. Ltd. DID No. 126/13 Vide order dated 08.01.2014 following issues were framed:
i) Whether workman was working with the management since 1990 as 'Field Man' and his services were illegally terminated by the management on 01.08.2012? Or alternately workman has completed not less than one year of continuous service with the management as a requirement of section 25 F of the Industrial Disputes Act, 1947? OPW
ii) Whether the workman stopped coming to his duty without prior permission or authorization and abandoned his job on his own on 01.08.2012? If so, to what consequences? OPM
iii) Relief.
5. APPLICATION OF WORKMAN TO GIVE DIRECTION TO THE MANAGEMENT TO PRODUCE THE RECORDS Vide order dated 28.05.2014 an application was moved by workman seeking production of records namely (a) Muster roll, Wages register, attendance card, appointment letter, ESIC & PF record, Pay Slip of all employees including workman since Jan.1990 to July 2012; (b) Balance Sheet, Ledger / cash book and Income tax return of management w.e.f. Jan. 1990 to July 2012 and (c) Application and appointment letter of workman. On 17.09.2014 reply to this application was filed and matter was adjourned for production of records by management whatever management wants to produce in support of its case. On 17.12.2014 Court passed the following order: "17.12.2014 Present: Workman with Sh. Ajit Singh Adv.
Mr. M.S.Nagar Adv. for the management.
Ld. counsel for the management seeks adjournment due to personal exigency. Put up on 04.02.2015 for production of records by the management as per order dated 17.09.2014 as well as WE."
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On 08.04.2015 Court passed the following order:
"08.04.2015
2.30 p.m.
Present: Workman in person with Mr. Ajit Singh Adv.
None for the management despite repeated calls since morning and waiting up till after lunch.
WW1 Workman Harjeet Kapoor examined. As none appeared for management despite waiting up till after lunch, management is hereby proceeded with exparte. Put up on 18.05.2015 for remaining WE."
EXPARTE EVIDENCE Workman appeared in witness box as WW1 Harjeet Kapur by tendering his examinationinchief vide evidence affidavit Ex.WW1/A reiterating the averments made by him in the statement of claim and also relied upon documents namely Ex.WW1/1 - Complaint dated 08.10.2012 made to the Inspecting Officer, Karampura, Delhi; Ex.WW1/2 Copy of demand notice dated 29.12.2012; Ex.WW1/3 - Postal receipt; Ex.WW1/4 - AD Card; Ex.WW1/5 Statement of claim filed before the Conciliation Officer; Ex.WW1/6 - Certificate dated 23.07.2006 and Ex.WW1/7 - Failure report dated 12.04.2013. Exparte evidence of workman was closed on 06.08.2015.
On 10.08.2015 Court passed the following order:
"10.08.2015
Present: Workman in person.
Management is exparte.
Be awaited as prayed for.
(ANAND SWAROOP AGGARWAL)
POLC - XI / KKD / DELHI / 10.08.2015 +
Second call
Present: Workman with Mr. Ajit Singh Adv.
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Management is exparte.
At the outset, ld. counsel for the workman submitted that application moved by workman seeking production of records from the management may be disposed off as not pressed inasmuch as management is already exparte and the depositions/documentary evidence of the workman have gone unrebutted. Accordingly, application stands disposed off as not pressed.
Exparte final arguments heard. Put up on 14.08.2015 at 4.00 p.m. for clarifications, if any/order."
6. My ISSUEWISE FINDINGS are as under: ISSUE No. 1 Whether workman was working with the management since 1990 as 'Field Man' and his services were illegally terminated by the management on 01.08.2012? Or alternately workman has completed not less than one year of continuous service with the management as a requirement of section 25 F of the Industrial Disputes Act, 1947? OPW ISSUE No. 2 Whether the workman stopped coming to his duty without prior permission or authorization and abandoned his job on his own on 01.08.2012? If so, to what consequences? OPM Both the issues being interconnected are taken up under a common discussion. As per workman he was working with the management since January 1990. Admittedly, last drawn wages of workman were Rs.22000/ per month. Management in the WS admitted that workman was employee of management but took the stand that workman had not completed 240 days in service of the management. What is pertinent to note is that management has not even pleaded as to when workman joined the management if not in January 1990 as pleaded / deposed by workman. Workman is relying upon one certificate Ex.WW1/6 dated 23.07.2006 which has been issued by Director of the Page 7 to 11 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:14.08.2015 Harjeet Kapur Vs. M/s. Tarun Builders Pvt. Ltd. DID No. 126/13 management and reads as under: "TARUN BUILDERS (P) LTD.
ENGINEERS BUILDERS & INTERIOR DECORATORS OFFICE : H20 (BASEMENT) BALI NAGAR, NEW DELHI 110015 PHONE : 25433154, 25460869 Email : [email protected] 23.07.2006 TO WHOM IT MAY CONCERN THIS IS TO CERTIFY THAT MR.HRAJEET KAPOOR S/O SHRI DEVRAJ KAPOOR R/O A1/77, FREEDOM FIGHTER ENCLAVE, NEW DELHI110068. HE IS WORKING WITH IN OUR ORGANISATION AS A "SUPERVISOR" SINCE AUGUST - 1991 TO TILL DATE AND DRAWN THE SALARY RS.18,600/ P.M. HE WAS FOUND HARD WORKING SINCERE AND DEDICATED TO HIS WORK TO THE BEST OF MY KNOWLEDGE. HE BEARS A GOOD MORAL CHARACTOR. WE WISH HIM BEST OF LUCK FOR HIS FUTURE ASSIGNMENTS. FOR TARUN BUILDERS PVT. LTD.
sd/ (DIRECTOR)"
As per the certificate Ex.WW1/6 workman was working with the management since August 1991. Management has not filed on record even a single document to show the period for which workman worked with the management. Even at the cost of repetition it is mentioned that in the WS management even did not mention the date / month / year when workman joined the management. Management, however, pleaded in the WS that workman did not complete 240 days in the service of management. In my considered opinion management was supposed to specifically plead in the WS as to when the workman joined the management and failure on the part of management in this Page 8 to 11 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:14.08.2015 Harjeet Kapur Vs. M/s. Tarun Builders Pvt. Ltd. DID No. 126/13 regard leads this Court to assume that pleadings / depositions of workman in this regard are quite possibly true. Moreso, when management has not even cared to file even a single document to show the period of employment of workman with the management. The depositions made by workman have gone unrebutted and management had not cared to contest the case on merits. Management in the WS pleaded that workman abandoned his job on 01.08.2012 and did not send any information or attend the duties despite call letters dated 04.08.2012, 13.08.2012 and 21.08.2012. It is pertinent to note is that management has not even filed on record copies of these alleged call letters or proof of the said call letters having been dispatched to workman or proof of workman receiving the said call letters. Infact management has filed no document(s) at all to prove the stand taken by the management in the WS. In this background preponderance of probabilities suggest that management infact terminated the services of workman on 01.08.2012 as pleaded / deposed by workman rather than workman abandoning his services on his own as is pleaded by management. Burden of proof regarding issue no.2 was on the management but management has not cared to contest the case from the stage when the case was fixed for WE and, therefore, exparte evidence of workman was recorded. In this background it can be said that management has not been able to discharge the burden of proof regarding issue no.2. Issue no.2 is decided against the management accordingly. In view of above discussion it is held that quite possibly workman was working with the management since January 1990 and management terminated his service on 01.08.2012 in violation of provisions of section 25 F of the Industrial Disputes Act, 1947 as pleaded / deposed by workman. It is noted that violation of provisions of section 25 G of the Industrial Disputes Act, 1947 is not made out for want of requisite averments / depositions to meet out the bare needed requirement of section 25 G of the Page 9 to 11 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:14.08.2015 Harjeet Kapur Vs. M/s. Tarun Builders Pvt. Ltd. DID No. 126/13 Industrial Disputes Act, 1947. Issue no.1 is accordingly decided in favour of workman. ISSUE No. 3: Relief MERELY BECAUSE the management terminated the services of workman in violation of provisions of section 25F of the Industrial Disputes Act, 1947 does not mean that workman is automatically entitled to reinstate in service with management with full back wages. Here parties are at issue as regards period of employment of workman with the management. Workman is claiming to be in the employment of the management since January 1990 and as per the management workman even did not complete 240 days service with the management. My above finding as regards period of employment of the workman with the management is on the basis of principle of preponderance of probabilities only. In my considered opinion order for reinstatement of workman in service with the management may not result in cordial / harmonious industrial relations between the workman and management. Hence reinstatement is declined.
Workman in his evidence affidavit Ex.WW1/A deposed that workman searched the job at many places but did not find any job so the workman is still unemployed. Workman neither in the statement of claim nor in the evidence affidavit mentioned the details of the places where workman allegedly searched for job. There is no documentary proof also in support of these averments. It is not the case of workman that he got himself registered with employment exchange despite workman being allegedly unemployed. Also it has remained totally unexplained as to how workman is able to maintain himself / his family after 01.08.2012 if workman is really unemployed since then. In the totality of facts and circumstances of this case possibilities of workman being employed anywhere else or earning money to maintain himself / his family cannot ruled out altogether. Hence workman is not entitled to full back wages.
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In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the tune of Rs.4,50,000/ (Rupees Four Lacs Fifty Thousand only) to the workman for illegal / unjustified termination of his services by the management and for consequences thereof / back wages would meet the ends of justice. If this amount of Rs.4,50,000/ (Rupees Four Lacs Fifty Thousand only) is not paid to workman within one month of award coming into force management shall be liable to pay interest @ 9% per annum on this amount from the date of the award till its payment. A sum of Rs.20,000/ (Rupees Twenty Thousand only) is also awarded to workman as costs of litigation payable by the management.
7. A copy of the award be sent to the Office of the concerned Deputy Labour Commissioner for further necessary action.
8. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 14.08.2015
(ANAND SWAROOP AGGARWAL)
POLCXI, Karkardooma Courts, Delhi*
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