Delhi District Court
Sh. Surender Kumar vs M/S Adigear International on 29 September, 2015
IN THE COURT OF SHRI NARINDER KUMAR
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER : LABOUR COURT - XIX
KARKARDOOMA COURTS : DELHI
LIR No. 498/2011
Unique Case ID No. 02402C0077762011
Sh. Surender Kumar
S/o Late Sh. Raghunath Pal
Through All India General Mazdoor
Trade Union Regd. 170, Bal Mukund Khand,
Giri Nagar, Kalkaji, New Delhi 19 ............Workman
Versus
M/s Adigear International
A40, Mayapuri Industrial Area PhaseI
New Delhi 110 064 ............Management
Date of institution of the case : 03.03.2011
Date of passing the Award : 29.09.2015
Ref. No. F.24 (56)/11/SWD/Lab./10031006 dated 07.02.2011
AWARD
Vide reference dt. 07.02.2011, Dy. Labour Commissioner,
Government of NCT, Delhi referred to this court, for adjudication an
Industrial Dispute between the parties named above, under Section 10
(1) (c) and 12(5) of the Industrial Disputes Act, 1947, specifying the terms
of reference as under :-
"Whether Sh. Surender Kumar S/o Sh. Raghunath Pal
absented from his duties unauthorizedly or his services
LIR No. 498/2011 Page 1/11
have been terminated by the management illegally and /
or unjustifiablly and if yes do what relief is he entitled?"
2. Notice of the reference was sent to the workman. Thereupon
he filed statement of claim. As per statement of claim, the claimant is
feeling aggrieved by his termination from service by the management
w.e.f. 08.05.2010 and prayed for his reinstatement in service with
continuity and full back wages as well as consequential benefits.
Case of the claimant is that he joined employment with the
management on 01.01.2004 as a Tailor and that he drew last wages at
the rate of Rs. 5500/-. Claimant has alleged that management did not
issue him any show cause notice or charge sheet.
It is also case of the claimant that management with held his
earned wages from 01.04.2010 to 07.05.2010 and terminated his
services on 08.05.2010, in violation of provisions of Section 25 N of the
Act.
Claimant is alleged to have sent demand notice dated
11.05.2010 to the management and also complained to the concerned
Assistant Labour Commissioner but the management did not reinstate
him in service or furnish any reply but even then management did not
reinstate him in service. Hence, this claim.
Version of management
3. In its written statement, management has pleaded that the
claimant was temporarily appointed on 10.04.2009 as single part
LIR No. 498/2011 Page 2/11
operator and further that his last drawn wages were Rs. 6,000/-.
Management has denied to have retrenched services of the claimant on
08.05.2010 or to have withheld wages from the period from 01.04.2010
to 07.05.2010. As pleaded by the management, the claimant remained
absent from duties, without intimation, from 08.05.2010 and further that it
had sent letter to the claimaint on 14.06.2010 and 05.07.2010 calling
upon him to join duties, but he did not report for duties. Management
has denied to have terminated services of the claimant, as alleged in the
claim.
Rejoinder
4. Claimant has filed replication controverting the pleas put
forth by the management. It may be mentioned here that the rejoinder is
without verification clause.
5. From pleading of parties following issues were framed on
07.02.2012.
1.Whether the services of the workman were illegally and unjustifiably terminated ? OPW
2. Whether the workman willfully and unauthorizedly absented from his services w.e.f. 08.05.2010 and did not join it despite letters issued to him. OPM.
3. Relief.
Evidence
6. In order to prove his case, claimant has stepped in the witness box as WW1 and tendered his affidavit Ex. WW1/A and LIR No. 498/2011 Page 3/11 documents Ex. WW1/1 to Ex. WW1/5.
On the other hand, initially Sh. Om Prakash stepped in the witness box as MW1 and tendered in evidence his affidavit Ex. MW1/A and documents Ex. MW1/1 and Ex.MW1/3. However, subsequently, he did not step in the witness box. Management examined MW2 Sh. Amit Singhal, who has tendered in evidence Ex. MW2/A and documents EX. MW2/1 to Ex. MW2/3.
7. Arguments heard. File perused.
8. Ld. AR(W) has referred to the evidence led by the workman including documentary evidence proved on record and submitted that workman has duly proved that he joined employment with the management as a Tailor on 01.01.2004 and further that the management illegally terminated his services on 08.05.2010, withholding his wages for the period from 01.04.2010 to 07.05.2010. The contention is that the management violated provisions of Section 25 N of the Act and as such the claimant is entitled to reinstatement in service, continuity in services and back wages.
On the other hand, Ld. AR (M) has submitted that from the evidence is stands proved that the claimant joined employment with the management on on 10.04.2009 and drew salary at rate of Rs. 6,000/- for the last time. Further it is submitted that since the claimant was absenting from duties since 08.05.2010 and he did not resume his duties LIR No. 498/2011 Page 4/11 despite letters sent by the management, the claim deserves to be dismissed.
Discussion:-
9. Both these issues are interconnected and as such taken up together.
Claimant has testified in his affidavit Ex. WW1/A that he was serving as a 'Tailor' with the management since 01.01.2004 and he drew last wages @ Rs. 5,500/- per month. Management has denied this version of the claimant and pleaded that the claimant joined employment with management on 10.04.2009 and that his last drawn salary was Rs. 6,000/- per month.
In his cross examination, claimant admitted having no documentary proof to show that he started working with the management w.e.f. 01.01.2004. Ex. WW1/5 is copy of ESI Card of the claimant. It depicts the date of appointment of the claimant as 10.04.2009. Photocopy of the identity card of the claimant issued by the management also depicts the same date of appointment. In view of this documentary evidence and no other document having been produced on record by the claimant, it cannot be said that he joined employment with the management on 01.01.2004. Rather, it stands established that he joined employment with the management on 10.04.2009 as a Tailor.
10. Claimant has testified in his affidavit Ex. WW1/A that LIR No. 498/2011 Page 5/11 management terminated his services on 08.05.2010. No letter of termination has been placed on record. It has come in cross examination of the claimant that during his employment with the management he had good relations with the management. He further admitted to have not made any complaint against the management in the course of his employment. He clearly stated that he had no grievance against the management. However, he denied that his services were never terminated by the management or that he himself left the job of his own or that management called him to join duties by way of letters and also through labour department.
In his cross examination, his attention was drawn to Ex. WW1/M1 & M2 i.e. letters dated 14.06.2010 and 05.07.2010 and it was put to the claimant that the same were bearing his correct address. The claimant admitted that both these letters were bearing his correct address, in the course of his employment at Delhi. At the same time, he stated to have not received any of these two letters, as he had left the given address and gone to his native place. The claimant was not subjected to any further cross examination to elicit from him as to when he had left the said address or as to when he had left for his native village, so as to find out as to whether these two letters were delivered to the claimant or not. As regards these two letters Ex. WW1/M1 & M2, as noticed above, the first letter is dated 14.06.2010 and second dated LIR No. 498/2011 Page 6/11 05.07.2010.
Management has not proved on record any postal receipt so as to show that these two letters were put in the course of transmission by the management. In absence thereof, it cannot be said that any such letter came to be issued by the management to the claimant telling him that he was being marked absent or calling upon him to resume duties forthwith.
11. Management has placed on record another letter Ex. MW2/3 stated to have been submitted to the Assistant Deputy Labour Commissioner on 11.01.2011 in reply to Notice No. ID/C/227/CO/10/9655-9678 dated 29.12.2010. In this letter the management referred to three letters dated 14.06.2010, 05.07.2010 and 11.08.2010 so as to inform labour department as to what were the actual facts. The management also requested the Assistant Deputy Labour Commissioner to ask the claimant to resume duties forthwith with written explanation for his unauthorized absence.
It may be mentioned here that MW2 Sh. Amit Singhal was questioned in his cross examination if any notice was received by the management from the Labour Commissioner regarding claim of the claimant. MW2 clearly stated that no notice regarding claim, filed by the claimant before the Labour Commissioner, was received. In such a situation, it cannot be said that management sent letter Ex. MW2/3 to the LIR No. 498/2011 Page 7/11 Assistant Labour Commissioner.
12. In the given facts, decision in Trina Engineering Company (P) Ltd. vs Secretary (Labour) and others 2006 II LLJ Delhi does not come to the aid of the management.
Even otherwise, it is significant to note that management has not proved on record any record of attendance so as to establish that the claimant started absenting from duty w.e.f. 08.05.2010. No explanation has been put forth for non production of the attendance record. In absence of any such evidence, it cannot be said that the claimant was absenting from duty w.e.f. 08.05.2010. As held above, management has failed to prove that any letter was sent to the claimant calling upon him to resume duties. In this situation, decision in Tejpal vs Gopal Narain & Sons & Anr 132 (2006) Delhi Law Times 311, does not help the management.
13. In view of the above discussion, this court finds that the management has failed to prove that the claimant was absenting from duties w.e.f. 08.05.2010, and rather it stands established that the management terminated services of the claimant w.e.f. 08.05.2010.
14. Claimant has alleged that there were more than 100 employees in the employment of the management during the relevant period. But the claimant has not led any evidence in this regard. Nothing is available in this regard in the evidence of the management as well. LIR No. 498/2011 Page 8/11 Therefore, provisions of Section 25N do not come into application to the present case.
Section 25F provides as under:-
Under Section 25F, management was required to comply with the following pre-conditions before terminating his services:-
No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-
a. the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice b. the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay (for every completed year of continuous service) or any part thereof in excess of six months; and c. notice in the prescribed manner is served on the appropriate Government (or such authority as may be specified by the appropriate Government by notification in the Official Gazette.) There is nothing on record to suggest that the management complied with any of the pre conditions before terminating services of the claimant. Therefore management illegally terminated services of the claimant in violation of provisions of Section 25F of the Act.
Accordingly, issue no. 1 is decided in favour of the claimant whereas issue no. 2 is decided against the management and in favour of LIR No. 498/2011 Page 9/11 the claimant.
Issue No. 3/Relief
15. The normal rule in case of termination of service is of reinstatement in service with continuity in service, full back wages and consequential benefits. In this regard, reference may be When this court has enquired from the claimant as to whether he is willing to resume duties with the management, he has answered in negative because of the conduct of the management in terminating his services. He prays for grant of lumpsum compensation.
16. Case of the claimant is that management did not pay him wages for the period 01.04.2010 to 07.05.2010. Management has failed to produce payment and wages register for this period. So, claimant is entitled to earned wages for this period i.e. 01.04.2010 to 07.05.2010.
It has come in the cross examination of claimant that he has been doing alteration work as a Tailor at his native village and could earn about Rs.2,000 - 3000/- per month.
17. Keeping in view the tenure of the service of the claimant, his designation, the factum of illegal termination of his services, gainful employment of the claimant and provisions of Section 25F of the Act, this court deems it a fit case to allow him lumpsum compensation.
Claimant is awarded lumpsum compensation of Rs. 25,000/-. Claim is disposed of and Reference is answered accordingly. LIR No. 498/2011 Page 10/11 Copies of this award be sent for publication and case file be consigned to record room.
ANNOUNCED IN OPEN COURT ON 29th day of September 2015 (Narinder Kumar) Addl. District & Sessions Judge Presiding Officer Labour Court-XIX Karkardooma Courts, Delhi LIR No. 498/2011 Page 11/11