Delhi District Court
Arun Kumar vs M/S Chunmum Stores Pvt. Ltd on 30 March, 2024
IN THE COURT OF
PRESIDING OFFICER LABOUR COURT-01:
ROUSE AVENUE DISTRICT COURT: NEW DELHI
Presided Over by: Ms. Pooja Aggarwal, DHJS
LIR No. 485/2017
CNR No. DL-CT13-002168-2017
In the matter of :-
Shri Arun Kumar Jana
S/o Sh. Bhupati Jana
R/o.: 184, Garhi, Lajpat Nagar, New Delhi-110065.
Mobile no.: 9873445313
.........Claimant/workman
VERSUS
M/s Chunmun Stores (P) Ltd.
B-1, Basement, Kailash Apartment,
Lala Lajpat Rai Road, New Delhi-110048.
.....Management
Date of Receipt of Reference : 17.02.2017
Date of Final Arguments : 28.03.2024
Date of Award : 30.03.2024
AWARD
1. A reference was received from the Deputy Labour
Commissioner (South District), Labour Department,
Government of NCT of Delhi vide order No. F-24(86)/
Lab./SD/2017/3580 dated 16.02.2017, under Section 10(1)
(c) and 12 (5) of the Industrial Disputes Act 1947 referring
an industrial dispute between Mr. Arun Kumar Jana
(hereinafter referred to as "claimant/ workman") and the
management of M/s Chunmun Stores (P) Ltd. (hereinafter Digitally signed by
POOJA POOJA AGGARWAL
LIR No. 485/2017 AGGARWAL Date: 2024.03.30
17:16:37 +0530
Arun Kumar Jana Vs. M/s Chunmun Stores Pvt. Ltd. Page No. 1 of 19
referred to as the 'management') with the following terms
of reference:
"Whether the services of workman Sh. Arun
Kumar Jana S/o Sh. Bhupati Jana, aged-46
years 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?"
Facts as per the statement of claim
2. In his statement of claim, the claimant/workman has asserted that he was working with the management since 01.07.2003 as a Salesman with his last drawn salary being Rs.10,600/- per month without any complaints against him regarding his performance of duty but the management failed to provide any legal facilities such as appointment letter, arrears of dues, earned leave, leave book, wages slip, bonus, overtime etc. to him.
3. It has been further asserted that the claimant/ workman used to orally demand the same from the management due to which, under a conspiracy by the management, the amount of provident fund of the claimant/ workman was withdrawn and new ESI card was issued to him.
4. It has also been asserted that the management took the ATM card from the claimant/ workman in year 2013 along with its password, and exchanged Rs. 1,00,000/- in his bank account, and that in the meantime the management also obtained the signatures of the claimant/ workman on Digitally signed by POOJA POOJA AGGARWAL LIR No. 485/2017 AGGARWAL Date: 2024.03.30 17:16:55 +0530 Arun Kumar Jana Vs. M/s Chunmun Stores Pvt. Ltd. Page No. 2 of 19 blank and printed papers under a conspiracy to avoid its responsibility for payment of legal dues to him.
5. It has been further asserted that after the completion of his duties on 06.08.2016, the claimant/ workman was refused for his duties on the next day, and the management falsely assured him that they will allow him to join duties in one/two days but did not do so and on 07.08.2016, the claimant/ workman was not allowed for his duties, so thereby the management illegally terminated his services w.e.f. 07.08.2016 without any reason.
6. It has also been asserted that the management issued a letter dated 26.08.2016 falsely alleging that the claimant/ workman was absenting from duties since 05.08.2016 even though the claimant/ workman had worked with the management till 06.08.2016. It has been further asserted that the workman replied to the letter on 05.09.2016 and also visited the management but he was not allowed to join his duties.
7. It has been further asserted that a demand notice dated 17.08.2016 was sent by the claimant/ workman to the management through his union seeking reinstatement with continuity of service, full back wages and all other consequential benefits but despite receiving the same, the management neither replied nor reinstated him. It is also stated that thereafter, the claimant/ workman filed a Digitally signed by POOJA POOJA AGGARWAL AGGARWAL Date: 2024.03.30 LIR No. 485/2017 17:17:11 +0530 Arun Kumar Jana Vs. M/s Chunmun Stores Pvt. Ltd. Page No. 3 of 19 statement of claim before the Conciliation Officer, Labour Office on 10.10.2016 but the management neither appeared nor replied to the same.
8. It is also been stated that there was no misconduct on the part of the claimant/ workman, no charge-sheet was issued, no inquiry was conducted, no notice regarding termination or pay in lieu thereof was given, no retrenchment compensation was paid and hence the termination of the claimant/ workman was illegal, arbitrary and against the principles of natural justice while also being in violation of Section 25F of Industrial Disputes Act.
9. It has also been asserted that the claimant/ workman has been unemployed after the termination of his service as he could not get any alternative employment despite best efforts, hence the present claim seeing reinstatement with continuity of service, full back wages and other consequential benefits.
Facts as per the written statement of the management
10.In its written statement, the management has raised preliminary objections as to the claim having been filed to extort money from the management and as to the claimant/ workman not having come to the court with clean hands and having concealed correct facts. It has been asserted that the claimant/ workman had taken Rs.1,00,000/- as advance from the management on 21.10.2013 vide cheque Digitally signed by POOJA POOJA AGGARWAL LIR No. 485/2017 AGGARWAL Date: 2024.03.30 17:17:28 +0530 Arun Kumar Jana Vs. M/s Chunmun Stores Pvt. Ltd. Page No. 4 of 19 no. 022915 assuring to get Rs.5,000/- deducted from his salary after six months which he did not do on various pretexts, regarding which lenient view was taken by the management due to his financial condition, and the claimant/workman was asked to pay/ deduct the entire advance by July 2016 which was not done by the claimant/ workman who then absented from his duties since 05.08.2016 and did not join the service despite notices dated 08.08.2016 and 16.08.2016 and also despite requests of the management through telephone through co-worker and through messengers.
11.On merits, the date of appointment and wages of the claimant/ workman were denied but also stated to be a matter of record. All the other averments of the claimant/ workman have been denied on merits including as to the receipt of any demand notice of the claimant/workman.
Rejoinder
12.In the rejoinder as filed, the claimant/ workman denied all the averments of the written statement and reiterated the contents of his statement of claim.
Issues
13.From the pleadings of the parties, the following issues were framed by the Ld. Predecessor on 01.05.2018:
1. Whether the services of the workman have been terminated illegally? OPW Digitally signed by POOJA POOJA AGGARWAL AGGARWAL Date: 2024.03.30 LIR No. 485/2017 17:17:44 +0530 Arun Kumar Jana Vs. M/s Chunmun Stores Pvt. Ltd. Page No. 5 of 19
2. Whether the workman remained absent from the services of the management since 05.08.2016? OPM
3. Relief.
Workman Evidence
14.To prove his case, the claimant/ workman has examined only himself. As WW1, the claimant/ workman Mr. Arun Kumar Jana tendered his evidence by way of affidavit i.e. WW1/A on similar lines as the statement of claim and he also relied upon following documents:
i. Copy of ESIC Card i.e. Ex.WW1/1.
ii. His statement of account i.e. Mark-A iii. Copy of demand notice i.e. Mark-B iv. Letter dated 26.08.2016 i.e. Ex.WW1/4.
v. Reply dated 05.09.2016 i.e.Mark-C. vi. Copy of statement of claim filed before Conciliation Officer i.e. Mark-D. vii. Summon issued by Labour Officer to the management i.e. Ex.WW1/7 viii. Notice issued by Labour Officer to the management i.e. Ex.WW1/8 ix. Certified copies of proceedings before the Conciliation Officer i.e. Ex.WW1/9.
15.WW1/Sh Arun was duly cross-examined on behalf of the management wherein inter alia he admitted that he had last visited the management on 15.08.2016 and that he had not reported for duty after receipt of letter dated 26.08.2016 Digitally signed by POOJA POOJA AGGARWAL LIR No. 485/2017 AGGARWAL Date: 2024.03.30 17:18:01 +0530 Arun Kumar Jana Vs. M/s Chunmun Stores Pvt. Ltd. Page No. 6 of 19 which he had received after sending his demand notice. He further testified that he was not ready to join duties with the management without back wages.
16.WW1 also admitted that an amount of Rs.1 lakhs was credited in his bank account by the management on 22.10.2013 but went on to testify that the HR of the company had taken his ATM card and PIN and withdrawn the sum of Rs 1 Lakh on 22.10.2013 and 23.10.2013 and named the HR as Sh. Parvesh Kumar. He also admitted that he had not made any police complaint against Sh. Parvesh Kumar but volunteered that he had visited the PS Lajpat Nagar in this regard on 25.10.2013 though he admitted that he had not mentioned the same in his statement of claim or in his evidence affidavit. He has further testified that he had not made any complaint to the management against Sh. Parvesh Kumar. He also testified that he was earning Rs 7000/- per month while his wife was earning Rs 5000/- per month but denied earning Rs 20,000/- per month. He denied the remaining suggestions of the management.
Management Evidence
17.The management also examined only one witness. MW1 Mr Parvesh Kumar tendered his evidence by way of affidavit i.e. Ex MW1/A on similar lines as the written statement and relied upon the following documents:
i. Copy of board resolution in his favour i.e. Digitally signed by POOJA POOJA AGGARWAL LIR No. 485/2017 AGGARWAL Date: 2024.03.30 17:18:14 +0530 Arun Kumar Jana Vs. M/s Chunmun Stores Pvt. Ltd. Page No. 7 of 19 Ex.MW1/1 ii. Copy of his Aadhar card i.e. Ex.MW1/2.
18.MW1/ Parvesh Kumar was duly cross-examined on behalf of the claimant/workman wherein inter alia, he admitted that the workman had not given any written application to the management for taking advance amount of Rs. 1,00,000/- though he volunteered that the amount was given by cheque on the asking of the workman during duty hours. MW1 also admitted that he had not filed any documentary proof on record to prove that cheque of Rs. 1,00,000/- was issued in favour of the workman as advance amount. He further testified to the effect that it was after three months from the date of receiving the advance amount that the management asked the workman to return the same. He further testified that the management had not demanded in writing to the workman for returning the advance amount.
19.MW1/ Sh Parvesh Kumar has further testified that he had issued letter to the workman in the year 2016, asking him to join his duties when the workman had not joined the duties but he did not remember date or month thereof. He further testified that the abovesaid letter was sent by speed post calling the workman on duty and he admitted that he had not placed the said letters on record.
20.MW1 also admitted in his cross-examination that no memo Digitally signed by
POOJA POOJA AGGARWAL
AGGARWAL Date: 2024.03.30
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Arun Kumar Jana Vs. M/s Chunmun Stores Pvt. Ltd. Page No. 8 of 19
or charge sheet had been issued against the workman for non joining of duties nor any domestic inquiry was conducted by the management against him. He also admitted that the document Ex.WW1/4 was issued to the workman by Sh. Radhey Shyam, Advocate on behalf of management wherein there was no mention of any letter dated 08.08.2016 and 16.08.2016. He further admitted that the workman was working with the management as Salesman since 01.07.2003 and denied the remaining suggestions put forth to him.
Final Arguments
21.Final arguments were advanced by the Authorized Representatives of the workman as well as of the management and written final arguments were also filed on behalf of both the parties.
22.In support of his arguments, the claimant/workman placed reliance upon the following judgments:
i. Bhuvnesh Kumar Dwivedi v. Hindalco Industries Ltd. (2014) 11 SCC 85 passed by the Hon'ble Supreme Court; and ii. V.L.T. Cargo Movers (P) Ltd, Mumbai v Ajit Kumar S. Puri & Another 2008-III-LLJ-1035 (Bom), passed by the Hon'ble Bombay High Court.
23.On the other hand, the management relied upon the following judgments POOJA Digitally signed by POOJA AGGARWAL AGGARWAL Date:
2024.03.30LIR No. 485/2017 17:18:41 +0530 Arun Kumar Jana Vs. M/s Chunmun Stores Pvt. Ltd. Page No. 9 of 19
i. Diamond Toys Co. (P) Ltd v. Toofani Ram decided by the Hon'ble Delhi High Court on 07.02.2007; ii. Sonal Garments v. Trimbak Shankar Karve 2003 LLR 5 Bombay, decided by the Hon'ble Bombay High Court iii. Tej Pal v. Gopal Narain & Sons and Anr. 2006 LLR 1142 (Delhi) decided by the Hon'ble Delhi High Court.
24.The submissions as made have been carefully considered along with the evidence on record. After careful consideration of the same, the issue wise findings are as under :
Issue no. 1: Whether the services of the workman have been terminated illegally? and Issue no.2: Whether the workman remained absent from the services of the management since 05.08.2016?
25.Both the issues are being taken up together as they involve interconnected facts. While the onus to prove issue no.1 was on the workman, the onus to prove the issue no. 2 was on the management.
26.At the very outset, it is noted that the existence of relationship of employer-employee between the management and the claimant/ workman is not in dispute since the management has not disputed the factum of the claimant/ workman working as a Salesman with them Digitally signed by POOJA POOJA AGGARWAL LIR No. 485/2017 AGGARWAL Date: 2024.03.30 17:18:54 +0530 Arun Kumar Jana Vs. M/s Chunmun Stores Pvt. Ltd. Page No. 10 of 19 since 01.07.2003 as admitted in their written statement as well as by the MW1 Sh. Parvesh in his cross-examination.
27.In respect of his termination, the claimant/ workman has relied solely upon his oral testimony and in Ex. WW1/A, he has testified that on 06.08.2016, after completion of his duty, he was refused for his duty on the next day and the management falsely assured him that they will allow him to join duties in a day or two but on 07.08.2016, he was not allowed to join his duty and thereby the management illegally terminated his services without any reason. He was duly cross-examined in respect of the same.
28.On the other hand, as per the testimony of MW1/Sh.
Parvesh in Ex. MW1/A, the claimant/ workman has not been terminated by the management, but he was absenting himself from service w.e.f. 05.08.2016 and the workman did not join duty despite service of notices dated 08.08.2016 and 16.08.2016, as also requests through telephone, co-worker and messengers.
29.It is pertinent to note here that the testimony of the MW1 as to the claimant/workman absenting himself w.e.f. 05.08.2016 has not even been controverted in the cross- examination by the claimant/workman as only a suggestion was put to MW1 as to the services of the claimant / workman having been terminated illegally by the management on 07.08.2016 with there being no negation Digitally signed by POOJA POOJA AGGARWAL LIR No. 485/2017 AGGARWAL Date: 2024.03.30 17:19:06 +0530 Arun Kumar Jana Vs. M/s Chunmun Stores Pvt. Ltd. Page No. 11 of 19 of the factum of the claimant/workman having absented himself w.e.f. 05.08.2016 nor was it ever put to the MW1 that the claimant/workman had discharged his duties on 06.08.2016.
30.Even the testimony of MW1 as to the claimant/workman having been requested to join his services through telephone, co-worker and messengers has gone un-rebutted and uncontroverted in the absence of any cross- examination.
31.It is further pertinent to note here that despite referring to the letters dated 08.08.2016 and 16.08.2016, the management has not filed any such letter and even MW1 admitted during his cross-examination that he had not placed the letters on record which was sent by the management to the claimant/ workman for calling him on duty.
32.Be that as it may, it cannot be overlooked that WW1 claimant/ workman has himself relied upon the letter i.e. Ex. WW1/4 dated 26.08.2016 testifying that the same had been sent by the management and during cross- examination of MW1 elicited an admission from him as to the said letter having been sent on behalf of the management by Mr Radhey Shyam. Hence, the claimant/ workman has himself proved the letter Ex WW1/4.
Digitally signed by POOJA POOJA AGGARWAL AGGARWAL Date: 2024.03.30 17:19:17 +0530 LIR No. 485/2017 Arun Kumar Jana Vs. M/s Chunmun Stores Pvt. Ltd. Page No. 12 of 19
33.A bare perusal of the said letter Ex. WW1/4 reveals that vide the same, the management had inter alia asserted that the claimant/ workman was absenting himself from duty w.e.f. 05.08.2016 and he was also called upon to join the services of the management immediately upon receipt of the notice.
34.Though WW1 claimant/workman has testified in para 10 of Ex WW1/A that after sending the reply to the letter of management on 05.09.2016, he had immediately visited the management for duty but the management did not allow him to join the same, yet, the purpoted reply dated 05.09.2016 i.e. Mark C has not been proved by the claimant/ workman who has not even testified as to mode, manner or even the date on which such reply was even sent to the management.
35.WW1 claimant/workman also could not withstand the rigours of cross-examination and admitted in his cross- examination that he had not reported for duty after receipt of the letter dated 26.08.2016 and that he had last visited the management on 15.08.2016. Hence, it stands proved that the claimant/ workman did not report for duties despite receipt of the letter Ex WW1/4 though he had initially testified to the contrary which adversely affescts the credibility of the oral testimony which is purely self serving in the nature.
Digitally signed
by POOJA
POOJA AGGARWAL
AGGARWAL Date: 2024.03.30
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Arun Kumar Jana Vs. M/s Chunmun Stores Pvt. Ltd. Page No. 13 of 19
36.The testimony of WW1 claimant/workman in Ex WW1/A to the effect that the averment as to him having absented from duty w.e.f. 05.08.2016 in Ex WW1/4 was false as he had worked with the management till 06.08.2016, being a mere self serving statement also does not inspire confidence of the court since the very veracity of the testimony of the WW1 claimant/ workman has been shaken through cross-examination.
37.Hence, with it being proved that despite receiving the letter Ex WW1/4, the claimant/workman did not join his duty at the management, its effect needs to be considered. In respect of the same, it is noted that in Tej Pal v. Gopal Narain, 2006 SCC OnLine Del 966, as relied upon by the Ld AR for the management, it has been held by the Hon'ble Delhi High Court:
"A perusal of Section 2(oo) of the Act shows retrenchment means the termination of services of a workman by management. Where management does not terminate services of the workman and writes a letter to the workman to come and join duties, no inference can be drawn that services of the workman were terminated. It was not the case of the workman before the Labour Court that after receiving letter of the management asking him to join duties, he had gone to join duties and was not allowed to join duties. The contention of the workman that employer was supposed to initiate an inquiry into his absence before terminating his services, is baseless because in this case employer had not terminated services. An employer who writes a letter to the workman to join duties since he was absent, cannot be said to have terminated POOJA Digitally signed by POOJA LIR No. 485/2017 AGGARWAL AGGARWAL Date: 2024.03.30 17:19:41 +0530 Arun Kumar Jana Vs. M/s Chunmun Stores Pvt. Ltd. Page No. 14 of 19 the services of the petitioner. Only if the petitioner had not been allowed to join duties on his reporting, it could have been said that his services were terminated.""
(Emphasis supplied)
38.In the present case, with the WW1 claimant/workman having led only self serving oral evidence as to his services having been terminated by the management, but himself having brought on record the letter Ex WW1/4 and also having admitted that even after receipt of the call back letter, he did not report for duty, and with the claimant having further failed to prove that he was prevented by the management from joining his duties after the receipt of the letter, it proves that the services of the claimant/workman were never terminated by the management and that he himself remained absent from the services of the management.
39.It has been vehemently argued on behalf of the claimant/workman that as MW1 has admitted during his cross-examination that no memo or chargesheet was issued to/ against the claimant/workman for not joining his duties and as no domestic inquiry was conducted by the management, it proved the factum of illegal termination of the claimant/workman. However, in view of the legal proposition laid down in Tej Pal v. Gopal Narain, (supra), as there was no termination, there was no requirement of any inquiry to be conducted and hence this argument stands rejected.
Digitally signed
by POOJA
POOJA AGGARWAL
AGGARWAL Date: 2024.03.30
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Arun Kumar Jana Vs. M/s Chunmun Stores Pvt. Ltd. Page No. 15 of 19
40.It has also been argued in the written arguments filed on behalf of the claimant/ workman that an adverse inference be drawn against the management for non-production of the documents sought by the claimant/workman vide his application under Section 11 of Industrial Disputes Act. However, this argument is devoid of merits, since even though the documents were not produced by the management in pursuance of application having been allowed by the Ld Predecessor vide order dated 14.03.2019, but in the entire cross-examination of MW1, there is not even a single suggestion as to the management having withheld any such documents deliberately. Hence, the mere non production of documents without any further averment as to the same having been deliberately withheld by the management is not sufficient to warrant drawing of an adverse inference.
41.Another argument has been raised on behalf of the claimant/ workman that as the MW1 had admitted in his cross-examination that he was never the authorized signatory of the management and the written statement had been signed by him, hence, it be presumed that the written statement was not filed by the management. It has also been argued that MW1 was not legally empowered to depose on behalf of the management.
42.However, the arguments as raised are fallacious since it is Digitally signed by POOJA POOJA AGGARWAL AGGARWAL Date: 2024.03.30 LIR No. 485/2017 17:20:16 +0530 Arun Kumar Jana Vs. M/s Chunmun Stores Pvt. Ltd. Page No. 16 of 19 noted that there is no categorical statement in cross- examination as to MW1 admitting that he was never the authorized signatory of the management since though he initially testified as to the same, he immediately corrected himself and testified that he was also the authorized signatory of the management.
43.Further, it is noted that at the time of his evidence MW1 has relied upon Ex MW1/1 i.e. extracts of minutes of meeting whereby MW1 has been specifically authorized to inter alia appear as a witness on behalf of the management. The document Ex MW1/1 has not been controverted by the claimant/workman, and hence nothing has come on record to doubt the authorization in favour of MW1 to depose.
44.Further it is noted that Ex MW1/1 is in respect of the meeting held on 15.03.2021 and the written statement was filed on 27.02.2018 but the claimant/workman has failed to bring forth any reason to believe that the written statement was filed without any authorization from the management and rather, it appears that there is implied ratification of the written statement even more so since Ex MW1/A is on similar lines as the written statement. Hence, the arguments as raised are rejected.
45.Another argument has been raised on behlaf of the claimant/workman during final arguments to the effect that Digitally signed by POOJA POOJA AGGARWAL LIR No. 485/2017 AGGARWAL Date: 2024.03.30 17:20:29 +0530 Arun Kumar Jana Vs. M/s Chunmun Stores Pvt. Ltd. Page No. 17 of 19 MW1 had testified that the claimant/ workman had taken a sum of Rs 1 Lakh as advance on 21.10.2013 and when the management asked to pay the amount, he failed to do so, but during his cross-examination MW1 admitted that the claimant/workman had not given any written application to the management for taking advance amount of Rs 1 Lakh, he had not filed any documentary proof to prove that the cheque of Rs 1 Lakh was issued towards advance amount and that the management had not made any demand in writing for return of the money, which proved that the claimant/workman had not taken any money from the management. However, no issue has been framed in this case for adjudication of whether any amount of Rs 1 lakh had been advanced by the management to the claimant/ workman and hence the same is beyond the purview of the present proceedings need not be gone into.
46.Thus, with there being no evidence on record except self serving oral testimony of the claimant/workman as to him having been terminated by the management but the credibility of the testimony of WW1 having been impeached through cross-examination and with the management having proved that the claimant/workman did not join the management even after receipt of call back notice Ex WW1/4, it is held that the factum of the termination of the claimant/ workman itself has remained unproved, and thus the question of the same being illegal or unlawful does not arise. POOJA Digitally signed by POOJA AGGARWAL AGGARWAL Date: 2024.03.30 17:20:42 +0530 LIR No. 485/2017 Arun Kumar Jana Vs. M/s Chunmun Stores Pvt. Ltd. Page No. 18 of 19
47.In view of the aforesaid reasons and discussions, issue no.1 is decided against the claimant/workman and in favour of the management, while the issue no.2 is decided in favour of the management and against the claimant/workman.
Relief
48.In view of the above discussion and findings on issue no. 1 and issue no.2, it is held that the claimant/ workman has failed to prove its claim and he is not entitled to get any relief. The claim filed by the claimant/ workman is dismissed. Reference is answered accordingly.
49.Copy of Award be uploaded on the website of RADC and another copy be sent to the concerned department through proper channels as per rules.
50.File be consigned to record room after necessary compliance.
Announced in the Open Court Digitally signed today on 30th March 2024 POOJA by POOJA AGGARWAL AGGARWAL Date: 2024.03.30 17:20:54 +0530 (Pooja Aggarwal) Presiding Officer Labour Court-01 Rouse Avenue District Courts New Delhi.
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