Delhi District Court
Son Pal @ Sohan Pal & Ors. vs . M/S. Hamdard Public School Id No. ... on 4 August, 2014
Son Pal @ Sohan Pal & Ors. Vs. M/s. Hamdard Public School ID No. 292/14
BEFORE MR. ANAND SWAROOP AGGARWAL: POLC - XI:
KARKARDOOMA COURTS: DELHI
REFERENCE CASE (ID) No. 292/14
UNIQUE CASE ID No. 02402C0519432005
In the matter of :
Sl. Name and Parentage of the Residential address of workman
No. workman (S / Sh.)
01. Son Pal @ Sohan Pal s/o. Babu 16/1375, Sangam Vihar, New Delhi (Also at: Village Chhoti
Ram Parawas, Distt. Murena, Madhya Pradesh)
02. Kush Lal s/o. Jahan Lal D-3/197, Sangam Vihar, New Delhi (Also at: Damak Nagar
Palika, Plot No. 7, Village Doghare, Jhapa Zila, Nepal)
03. Hayat Singh s/o. Gopal Singh H16/745, Sangam Vihar, New Delhi (Also at: H. No. 79,
Kondli Village, Delhi)
04. Puran Chand s/o. Bhajan Lal H16/939, Sangam Vihar, New Delhi
05. Mohal @ Mohan Lal s/o. Khem Lal H16/745, Sangam Vihar, New Delhi
06. Bhopal Chand s/o. Jagdish Chander H16/1375, Sangam Vihar, New Delhi (Also at: H16, Sangam
(Note: Corrected vide Corrigendum Vihar, New Delhi)
dated 23.07.2010)
07. Sagar (Shiv Sagar) s/o. Jahan Lal D3/197, Sangam Vihar, New Delhi (Also at: H. No. 202, Gali
No.2, Sangam Vihar, Delhi)
08. Jagdish s/o. Bachhi Ram H16/1182, Sangam Vihar, New Delhi (Also at: S16, H No.
130, Sangam Vihar, Delhi)
09. Alaudin s/o. Ali Hussain H16/745, Sangam Vihar, New Delhi (Also at: Village Naiil,
District Chamoli, Uttrakhand)
10. Hemant s/o. Mohan Ram H16/1261, Sangam Vihar, New Delhi (Also at: C422,
Kidwai Nagar, Delhi)
11. Balwant Singh s/o. Mohan Ram H16/745, Sangam Vihar, New Delhi (Also at: E - 305, Ist
Floor, Sector - 27, Noida)
12. Bhopinder s/o. Gopal Ram H16/1182, Sangam Vihar, New Delhi
13. Gautam s/o. Gobind Ram H16/745, Sangam Vihar, New Delhi
14. Yasin s/o. Ismail H16/745, Sangam Vihar, New Delhi
15. Nasim s/o. Badho Mian H16/912, Sangam Vihar, New Delhi (Also at: Village Dhane,
District Chamoli, Uttrakhand)
16. Harish s/o. Jagdish Chander H16/1375, Sangam Vihar, New Delhi
17. Ali s/o. Rahimtulla H - 16/810, Sangam Vihar, New Delhi
18. Kamlesh s/o. Ram H16/1182, Sangam Vihar, New Delhi
C/o Hotel Mazdoor Union (Regd.)
C204, Ashok Hotel Staff Quarters,
New Delhi110021 .....Workmen / Claimants
Page 1 to 24 (ANAND SWAROOP AGGARWAL)
POLC - XI/KKD/DELHI/04.08.2014
Son Pal @ Sohan Pal & Ors. Vs. M/s. Hamdard Public School ID No. 292/14
Vs.
M/s. Hamdard Public School
(Run by: Hamdard Education Society,
a Society registered under Society Registration Act, 1860 - as per
document Ex.MW1/W2 (also marked as Mark - M1)
relied upon by management.)
Talimabad, Sangam Vihar, New Delhi 110062
......... Management
Date of Institution : 01.08.2005
Date of reserving for award : 31.07.2014
Date of award : 04.08.2014
AWARD:
1.TERMS OF REFERENCE Vide ORDER No. F.24(3298)/04/Lab./7531535 dated 19.04.2005 Secretary (Labour), Government of N.C.T. of Delhi, made following reference under section 10 (1) (c) and 12 (5) of the Industrial Disputes Act, 1947 read with Govt. of India, Ministry of Labour Notification No. S11011/2/75-DK(IA) dated the 14th April, 1975 for adjudication by Labour Court No. IV: "Whether the services of Shri Son Pal and 17 others S/o Sh. Babu Ram 17 others have been terminated illegally and / or unjustifiably by the management, and if so, to what sum of money as monetary relief alongwith consequential benefits in terms of existing laws / Govt. Notifications and to what other relief is he entitled and what directions are necessary in this respect?"
2. On 08.02.2006 proceedings in this case were conducted by ld. POLC - IV but on 02.03.2006 proceedings were conducted by ld. POLC - XIII. As per order dated 07.04.2011 case was received by ld. POLC - XIX on transfer from the Court of ld. POLC - XIII.
3. Vide ORDER No. 1501506/Admn./KKD/Delhi Dated 29.02.2014 of Ld. District & Sessions Judge, (East) KKD Courts, Delhi and Order No. 5675 dated 28.03.2014 of Additional Labour Commissioner, Govt. of N.C.T. of Page 2 to 24 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/04.08.2014 Son Pal @ Sohan Pal & Ors. Vs. M/s. Hamdard Public School ID No. 292/14 Delhi, this case was transferred to this Court from the Court of Sh. Sanjay Sharma, Ld. POLCXIX, KKD, Delhi.
4. CASE OF WORKMEN AS PLEADED IN (SUBSTITUTED) STATEMENTOFCLAIM DATED AND FILED ON 15.09.2006 Workmen Son Pal and 17 others, whose names and service details are given as under, were employed by management to run canteen in the premises of Hamdard Public School / management:
(i) Details of the services of the workmen working in the mess of the management school are as under: Sl. No. Name Father's Name Designation Date of Wages (S/ Sh.) (S/ Sh.) Appointment (p.m.)
01. Sohan Pal Babu Ram Halwai 11 years 2000/
02. Kush Lal Jahan Lal Cook 1996 2500/
03. Hayat Singh Gopal Singh Cook 1997 1800/
04. Puran Chand Bhajan Lal Cook 1998 1800/
05. Mohan Lal Khem Lal Cook 1996 1800/
06. Bhopal Chand Jagdish Chander Cook 1996 1800/
07. Shiv Sagar Jahan Lal Cook 1997 1800/
08. Jagdish Bachi Ram Helper 2000 1000/
09. Allaudin Ali Hussain Helper 1998 1500/
10. Hemant Mohan Ram Waiter 2000 1200/
11. Balwant Mohan Ram Waiter 2000 1200/
12. Bhupinder Gopal Ram Waiter 2000 1200/
13. Gautam Gobind Ram Waiter 2000 1200/
14. Yasin Ismail Waiter 1998 1200/
15. Nasin Badho Mian Waiter 2000 1200/
16. Harish Jagdish Chander Waiter 2000 1200/
17. Ali Rahimtulla Waiter 2000 1000/
18. Kamlesh Sri Ram Helper 2000 1000/ Page 3 to 24 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/04.08.2014 Son Pal @ Sohan Pal & Ors. Vs. M/s. Hamdard Public School ID No. 292/14 The workmen had been serving most sincerely and honestly since the day of joining in the services of the management.
(ii) Management is running a canteen to provide food and beverage facilities to the students of both boys and girls hostels and its staff members. The job stated above is of regular, permanent and perennial nature.
(iii) Management had been violating the labour laws and was not maintaining service records of workmen and was taking 16 hours duty (i.e. 6.00 a.m. to 10.00 p.m.) daily without making any payment of extra wages. It was violating Minimum Wages Act; the Payment of Bonus Act; Employees Provident Fund Act and ESI Act. It was not providing the workmen with weekly off day nor was making any payment for the work done on weekly off day entitled under the labour law and, also, was not providing annual leaves and national leaves, as mentioned in section 22 of Delhi Shops and Establishment Act, 1954.
(iv) Workmen organised themselves in the month of April, 2004 and became members of Hotel Mazdoor Union. The workmen reported the matter to Assistant Labour Commissioner against management for violating the above stated labour laws on 15.04.2004 and on the complaint, two Labour Inspectors namely Mr. R. S. Sharma and Mr. Raju Bara Patra inspected the establishment and found the above workmen working in the canteen run by the management. The management did not produce the service records of the workmen before the Labour Inspectors.
(v) Thereafter, workmen filed case before Conciliation Officer for regularizing in service, due to which, management got vindictive and removed Page 4 to 24 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/04.08.2014 Son Pal @ Sohan Pal & Ors. Vs. M/s. Hamdard Public School ID No. 292/14 workmen from services w.e.f. 01.06.2004 without assigning any reason, notice, notice pay, earned wages for the month of May, 2004 and other legal dues, and thus, violated the provisions of section 25 Act (sic) (to be correct 25F ?) of the Industrial Disputes Act, 1947.
(vi) Management terminated the services by way of refusal of duty w.e.f. 01.06.2004 during the pendency of an industrial dispute. Therefore, it is guilty of contravening the provisions of section 33 of the Industrial Disputes Act, 1947.
(vii) Workman filed their case before conciliation officer and on failure of the conciliation proceedings, the matter has been referred for adjudication to this Court.
(viii) Workmen are unemployed since the day of removal from the services and could not get any job despite their best efforts.
With these averments workmen have prayed for an award in their favour and against the management for their reinstatement in service continuity of service and full back wages alongwith all consequential benefits to which workmen are entitled.
5. CASE OF MANAGEMENT AS PLEADED IN WRITTEN STATEMENT OF DEFENCE.
PRELIMINARY OBJECTION OF MANAGEMENT As per management, workman Mr. Son Pal and 17 others were never employed by management of M/s. Hamdard Public School and, as such, no relationship of employer and employees / master & servants ever exists / existed between them and management, and, as such, they are not workmen as defined Page 5 to 24 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/04.08.2014 Son Pal @ Sohan Pal & Ors. Vs. M/s. Hamdard Public School ID No. 292/14 under section 2 (s) of the Industrial Disputes Act, 1947. Therefore, no industrial dispute as defined under section 2 - A of the Industrial Disputes Act, 1947 is / was in existence and, as such, the reference is bad and incompetent in law and no adjudication proceedings can take place on the basis of present order of reference.
ON MERITS, management denied in toto the case as pleaded by workmen in the statementofclaim in toto. As alleged, Mr. Son Pal & 17 others were never employed by management and, as such, the question of their working continuously with the management and their being no complaint whatsoever against them does not arise. Management further pleaded that management had awarded the contract to Mr. Arjun Singh for providing cooking and catering facilities to the hostelers of management on annual rate contract basis. After his death, one Mr. Kush Lal Singh accepted the contract. As the persons on whose behalf present statement of claim has been filed were never employed by the management, the question of management violating the labour laws and getting annoyed on their demanding legal facilities and terminating their services w.e.f. 01.06.2004, as alleged, does not arise. Management submitted that Mr. Son Pal and 17 others are gainfully and / or self employed. At last, management prayed for rejection of statementofclaim filed by workman.
6. REJOINDER Workmen filed rejoinder to WS of management denying the stand taken by management and reaffirming the averments made in statement of claim.
7. ISSUES Vide order dated 24.11.2006 ld. predecessor of this Court framed the Page 6 to 24 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/04.08.2014 Son Pal @ Sohan Pal & Ors. Vs. M/s. Hamdard Public School ID No. 292/14 following issues:
(i) Whether there existed relationship of master and servant between the parties? (OPW)
(ii) As per terms of reference?
(iii) Relief.
8. EVIDENCE Workman at serial no. 01 to 12 and 14 to 17 appeared in witness box as (Serial No. 1) WW11 Son Pal, (Serial No. 2) WW1 Kush Lal, (Serial No. 3) WW2 Hayat Singh, (Serial No. 4) WW3 Puran Chand, (Serial No. 5) WW8 Mohan Lal, (Serial No. 6) WW4 Bhopal, (Serial No. 7) WW5 Shiv Sagar, (Serial No. 8) WW12 Jagdish, (Serial No. 9) WW15 Allaudin, (Serial No. 10) WW6 Hemant, (Serial No. 11) WW9 Balwant Singh, (Serial No. 12) WW7 Bhupinder, (Serial No. 14) WW13 Yasin, (Serial No. 15) WW14 Nasim, (Serial No. 16) WW10 Harish Chander and (Serial No. 17) WW16 Ali respectively. Workmen at Sr. No. 13 (Gautam) and Sr. No. 18 (Kamlesh) filed their affidavits but did not appear in witness box to formally tender their affidavits as their examinationinchief and, further, to suffer cross - examination.
Workmen relied upon documents: Ex.WW1/1 - Complaint (dated 15.04.2004) made by Mr. M. Ram, General Secretary of the union on behalf of workmen to Assistant Labour Commissioner (S); Ex.WW1/2 - Complaint (dated 28.05.2004) made by Mr. M. Ram, General Secretary of the union on behalf of workmen to Assistant Labour Commissioner (S); Ex.WW1/3 & Ex.WW1/4 - Complaints made by Mr. M. Ram, General Secretary of the union on behalf of workmen to Assistant Labour Commissioner (S); Ex.WW1/5 - Complaint made by Mr. M. Ram, General Secretary of the union on behalf of Page 7 to 24 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/04.08.2014 Son Pal @ Sohan Pal & Ors. Vs. M/s. Hamdard Public School ID No. 292/14 workmen to Assistant Labour Commissioner (S); Ex.WW1/6 - Complaint (dated 04.08.2004) made by Mr. M. Ram, General Secretary of the union on behalf of workmen to Assistant Labour Commissioner (S), Mark - A and B - Photocopy of proceedings conducted by Labour Office; Mark - C - Report of Labour Inspector regarding his visit at management on 08.06.2004 and Ex. MW1/W1 - Copy of evidence of MW1 Mohd. Shahid Khan recorded before Minimum Wages Authority in the case of Son Pal and Ors. Vs. Hamdard Public School. Workman's evidence was closed on 03.05.2013 by ARW.
Management examined MW1 Mohd. Shahid Khan. Management relied upon documents: Ex. MW1/W2 (also Mark - M1) - Photocopy of Agreement between Hamdard Education Society and M/s Arjun Singh Caterer and Mark - M2 - Letter (dated 27.03.2003) written by Mr. Saiyid Hamid, Secretary, Hamdard Education Society to Mr. Arjun Singh, Mess Contractor regarding Extension of the tenure of Agreement dated 01.05.2002. Management's evidence was closed on 21.03.2014 by Mr. Pankaj Malik, Advocate.
9. ARGUMENTS I have heard Mr. Maya Ram, AR for workmen and Mr. Pankaj Malik, adv. for management. Ld. ARW relied upon case laws reported as (i) Bhilwara Dugdh Utpadak Sahakari S. Ltd. Vs. Vinod Kumar Sharma by LRs & Ors. 2011 LLR 1079; (ii) K. L. Kondappa Vs. Presiding Officer, Labour Court and anr. 2003 LLR 202; (iii) Bank of Baroda Vs. Ghemarbhai Harjibhai Rabari AIR 2005 SC 2799 and (iv) Manager, M/s. Mittal Steel Manufacturing Co. Vs. Chotha Ram and Anr. 2005 LLR 1059. Ld. counsel for management relied upon case laws reported as (i) Workmen, Silver Sands Employees Union Vs. First Additional Labour Court, Madras and Anr. 1994 II, L.L.N. 188; (ii) Page 8 to 24 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/04.08.2014 Son Pal @ Sohan Pal & Ors. Vs. M/s. Hamdard Public School ID No. 292/14 Hridayanand Vs. G. P. Stores, Allahabad & Ors. 1996 L.L.R. 433; (iii) Thankur Singh Rawat & Ors. Vs. Jagjit Industries Ltd. 2006 I L.L.J. 775 (DEL.); (iv) N. C. John Vs. Secretary, Thodupuzha Taluk Shop and Commercial Establishment Workers' Union and Ors., 1973 LAB. I. C. 398; (v) Range Forest Officer Vs. S. T. Hadimani AIR 2002 SC 1147; (vi) A. I. Railway Parcel and Goods Porters Union Vs. Union of India & Ors. 2003 (99) FLR 203; (vii) Surendra Nagar District Panchayat Vs. Dahyabhai Amarsinh 2006 (108) FLR 193; (viii) M/s Automobile Association Upper India Vs. The P. O. Labour Court - II and Anr. 130 (2006) DLT 160; (ix) A. I. I. M. S. Vs. Ghanshyam & Ors. 2014 (141) DRJ 201 and (x) Suresh Bhati & Ors. Vs. Kapil Industries and Ors. (Date of Decision 25 July 2006 decided by Hon'ble Ms. Justice Manju Goel, J.). Case laws relied upon by ld. ARW and ld. counsel for management perused with utmost regards particularly keeping in mind the question of their applicability in the facts and circumstances of this case. I have gone through material available on judicial file very carefully. I have given a thoughtful consideration to the facts and circumstances of this case as they arise on the basis of material available on judicial file while keeping in mind relevant legal provisions.
10. My ISSUEWISE findings are as under: ISSUE NO.1:
Whether there existed relationship of master and servant between the parties? (OPW) Initial burden of proving that their existed relationship of master and servant between management and workmen is on the workmen. Workmen are supposed to discharge this onus on the basis of principle of preponderance of probabilities. Standard of proof required is not that high that the workmen are Page 9 to 24 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/04.08.2014 Son Pal @ Sohan Pal & Ors. Vs. M/s. Hamdard Public School ID No. 292/14 supposed / required to prove that there existed relationship of employer and employee by leading evidence of the nature / quality so that it may be said, beyond all reasonable doubts, that there existed such relationship between employer and workmen. Workmen are to prove existence of such relationship on the basis of application of principle of preponderance of probabilities (i.e. there is every / likely possibility of existence of such relationship keeping in view the totality of facts and circumstances of the case.) HERE, workmen are claiming to have been employed by management to run canteen in the premises of Hamdard Public School / management as Halwai / Cook / Helper / Waiter from the dates of their appointments in the years 1993 / 1996 / 1997 / 1998 / 2000 till 01.06.2004, on which date management, allegedly, illegally terminated their services by way of refusal of duty w.e.f. 01.06.2004 on account of workmen raising demand(s) for legal facilities and filing a case before Conciliation Officer for regularization of their service with the management.
ON THE OTHER HAND, management pleaded in the WS that workmen were never employed by management, and management had awarded contract to Mr. Arjun Singh for providing cooking and catering facilities to the hostelers of management on annual contract basis and, after his death, one Mr. Kush Lal Singh accepted the contract. Thus, question of management violating the labour laws and terminating the services of workmen w.e.f. 01.06.2004 does not arise.
All the workmen, except workmen at Sr. No. 13 (Gautam) and Sr. No. 18 (Kamlesh) appeared in witness box and suffered their cross examination. Workmen Gautam and Kamlesh filed their separate evidence affidavits but did not appear in witness box to formally tender these affidavits in evidence on Page 10 to 24 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/04.08.2014 Son Pal @ Sohan Pal & Ors. Vs. M/s. Hamdard Public School ID No. 292/14 their behalf and, also, to suffer cross examination by ld. counsel for management. Workmen relied upon documentary evidence (i.e. Ex.WW1/1 to Ex.WW1/6, Mark A, B and C and Ex.MW1/W1). Management examined MW1 Mr. Mohd. Shahid Khan and relied upon documents Ex.MW1/M2 (also Mark M1) and Mark - M2. MW1 Mr. Mohd. Shahid Khan in his cross examination deposed as under: "....... It is correct that there are two hostels in the premises of the management, one for the boys and one for girls.......The hostel is running since 199394. The canteen is in the premises of the hostel. The canteen serves breakfasts, lunch and dinner to the occupants of hostel. The canteen starts functioning from 7 AM in the morning till 8 PM. As on date, the canteen is still running. I have no personal knowledge as to how many employees are working in the canteen. Vol. The canteen is on contract. The entire infrastructure of the canteen belongs to the school. I have no knowledge about the complaint and the visit of Labour Inspector to the premises of the management on the complaint of Shri Sohanpal and others. As the canteen was on contractual basis since 1993, I cannot tell as to who all were working in the canteen under the contractor. I have the contract agreement entered between the management and the contractor. I have brought one photocopy of agreement dt. 01.05.2002 arrived at between the management and one Arjun Singh. I have also brought a copy of letter dt. 27.3.2003 about the extension of the contract. Same are Mark M1 and M2 respectively......It is correct that the said agreement is not registered.......It is correct that Shri Arjun Singh has passed away in 2003. After the death of Arjun Singh one Khush Lal took over as the contractor. It is correct that no agreement was entered to between Shri Khush Lal and the management.
It is correct that Ex.MW1/W1 is the copy of my statement recorded before the Minimum Wage Authority in the case of Son Pal and Or. Vs. The management. The same bears my signatures at point A to C........Sh. Kush Lal who was the contractor used to get the payment from the management and I do not know to whom he used to give the money. It is wrong to suggest that Kush Lal was working as a cook in the canteen and was not a Contractor. The raw material used to be provided by the management however, the contractor was given the contract for cooking and supplying. The management did not enter into any contract agreement with Sh. Kush Lal. That after the death of the Page 11 to 24 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/04.08.2014 Son Pal @ Sohan Pal & Ors. Vs. M/s. Hamdard Public School ID No. 292/14 contractor Sh. Arjun Singh, Sh. Kush Lal was given the contract on a trial basis. There is no document available with the management to show that Sh. Kush Lal was given contract on trial basis.......I do not know whether all these workmen were working in the canteen. Vol. The management had a contract with a contractor only......The management used to make the payment to the contrary by means of cheque. I can not file the details of the cheques issued in the name of Kush Lal and Arjun Singh as I do not have the same......No tender was floated to give the canteen on contract. The management had entered into an agreement with Sh. Arjun Singh but I can not tell how Sh. Arjun Singh came into contract with the management. The copy of the agreement entered between the management and Sh. Arjun Singh is now marked as Ex.MW1/W2........The food prepared by the contractor for students used to be checked by the warden and the matron of the hostel. The food was served to the students on the supervision of the warden and the matron....." (Underlining by me.) In his statement Ex.MW1/W1, made by MW1 Mr. Mohd. Shahid Khan before the Minimum Wage Authority in the case of Son Pal and others Vs. Management, Mr. Mohd. Shahid Khan deposed as under: "........school mein canteen 1993 se chal rahi hai. Canteen ko mgt. nahi chalate. Thekedar chalate hain. Yah theek hai ki yah karamchari canteen mein kam karte the. Bina record dekhe main nahi bata sakta ki May 2002 mein canteen ko kaun thekedar chalata tha. Yah theek hai ki yah agreement Regd. Agreement nahi hai jo ki Mark - A hai. Yah theek hai ki Mark - B par Arjun Singh ke sign nahi hai. Yah theek hai ki Arjun Singh Nov. 2003 mein expire ho gaya tha. ........ Yah galat hai ki Arjun Singh May 2002 se pehle canteen chala raha tha......... Arjun Singh ki prarthana per hum ise self ka cheque dete the usne likhit mein aaisi koi prarthana nahi di moukhik roop se di. Men jarurat padne per Payment kiye hue cheques kee detail de sakta hun............ Yeh sahi hai ki Kush Lal canteen mein kam karta tha or yah thekedar nahi tha........". (Underlining by me.) Page 12 to 24 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/04.08.2014 Son Pal @ Sohan Pal & Ors. Vs. M/s. Hamdard Public School ID No. 292/14 (ENGLISH TRANSLATION "... Canteen was running in the school since 1993. Canteen was not being run by management but by contractor. It is correct that these workmen were working in the canteen. Without seeing record I cannot tell who was contractor running the canteen in May 2002. It is correct that the agreement is not a registered agreement, which is Mark A. It is correct that Mark B does not bear signature of Arjun Singh. It is correct that Arjun Singh expired in Nov. 2003 ..... It is wrong that Arjun Singh was running the canteen prior to May 2002. .... On the request of Arjun Singh management was giving him 'self' cheques. He had not so requested in writing but orally. I can produce, if required, the details of the cheques vide which payment was made ..... It is correct that Kush Lal was working in the canteen and he was not a contractor.....). (Underlining by me.) Underlined depositions in statement Ex. MW1/W1 are not consistent with the underlined depositions made by MW1 Mr. Mohd. Shahid Khan before this Court.
Workman Son Pal @ Sohan Pal is claiming his employment since 1993. Admittedly hostel as well as canteen are running since 1993 itself. Management in its WS pleaded that it had awarded contract to Mr. Arjun Singh for providing cooking and catering facilities to the hostellers of the management on annual contract basis. To prove this stand management relied upon Agreement dated 01.05.2002, Ex. MW1/W2 (also Mark M1) for the academic year 2002 to 2003 and letter dated 27.03.2003 (Mark M2). As per material on record Mr. Arjun Singh expired in Nov. 2003. What is pertinent to note is that management has not produced the original of Ex. MW1/W2 (also Mark M1) and Mark M2 either before this Court or before the Minimum Wage Authority (as per Page 13 to 24 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/04.08.2014 Son Pal @ Sohan Pal & Ors. Vs. M/s. Hamdard Public School ID No. 292/14 statement Ex. MW1/W1 originals of these documents were not traceable and they were marked Mark A and Mark B). Document Mark M2 even does not bears signatures of Mr. Arjun Singh. For want of originals of these documents, they cannot be taken as proved. Also the said Agreement has not be corroborated on judicial file by producing details of the cheques vide which payments, allegedly, were made to Mr. Arjun Singh pursuant to said Agreement Ex. MW1/W2 (also Mark M1). Vide statement Ex. MW1/W1 admittedly Mr. Kush Lal was a worker in the canteen and Mr. Kush Lal was not a contractor. Thus management can be said to have failed to prove on judicial file existence of Agreement Ex. MW1/W2 (also Mark M1) and letter Mark M2. FURTHER it is important to note that management has led no evidence whatsoever to prove that it had given contract to any person for the period from the year 1993 till the date of alleged Agreement dated 01.05.2002 (Ex. MW1/W2). Even the details of the alleged contractor(s) for this period from the year 1993 till 01.05.2002 has not been furnished by the management. Payments to these contractors could have been proved by producing accounting details / books of accounts, but no such evidence has been led by management. In statement Ex. MW1/W1, MW1 Mr. Mohd. Shahid Khan admitted that workman herein were working in the canteen. When management has failed to prove its stand taken in the WS to the effect that it had awarded contract to Arjun Singh / Kush Lal for providing cooking and catering facilities to the hostelers on annual rate contract, by applying the principle of preponderance of probabilities, it can be said, in the totality of facts and circumstances of this case, that, quite possibly / likely, workmen herein were employed in the canteen by the management. It is pertinent to note that none of the workmen herein has filed / proved any documentary proof of his working with management or his appointment by the Page 14 to 24 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/04.08.2014 Son Pal @ Sohan Pal & Ors. Vs. M/s. Hamdard Public School ID No. 292/14 management. But this failure on the part of workmen is immaterial in the facts and circumstances of this case inasmuch as their presence in the canteen is admitted. Also, it has not been suggested to workmen that he / they never worked in the canteen. Failure to produce documentary proof / evidence regarding working / appointment with management does not necessarily mean that workmen in fact never worked with / appointed by the management keeping in view the totality of facts and circumstances of this case. Each of the workmen denied the suggestions given to him as per stand taken by management in its WS, which stand even has remained unsubstantiated on judicial file by the management. WW2 Kush Lal in his cross examination deposed that, "....It is wrong to suggest that management used to give me cheque and I used to get the same encashed and pay the salary to the employees.....". No details of such cheques have been furnished nor such payments to Mr. Kush Lal have been proved by producing books of accounts/bank statement by the management.
Each of WW2 Mr. Hayat Khan, WW3 Mr. Puran Chand, WW4 Mr. Bhopal, WW5 Mr. Shiv Sagar, WW6 Mr. Hemant and WW7 Mr. Bhupinder, in their cross examination deposed that they used to be paid salary by the school in cash and management used to take their signatures on the vouchers of the school. These depositions have remained uncontrovered in a way inasmuch as specific suggestion to the contrary was not given to these workman after their depositions to the abovesaid effect. In my considered opinion in the totality of facts and circumstances of this case by applying the principle of preponderance of probabilities it can be safely concluded that their did exist relationship of master and servant between management and workmen herein in terms of averments made by workmen in the (substituted) statementofclaim. Issue is Page 15 to 24 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/04.08.2014 Son Pal @ Sohan Pal & Ors. Vs. M/s. Hamdard Public School ID No. 292/14 accordingly decided in favour of workmen.
ISSUE NO.2: As per terms of reference?
("Whether the services of Shri Son Pal and 17 others S/o Sh. Babu Ram 17 other have been terminated illegally and/or unjustifiably by the management, and if so, to what sum of money as monetary relief along with consequential benefits in terms of existing laws/Govt. Notifications and to what other relief is he entitled and what directions are necessary in this respect.?") Workmen are alleging violation of provisions of section 25 F and 33 of the Industrial Disputes Act, 1947 by the management at the time of termination of their services by the management. So far as violation of provisions of section 33 of the Industrial Disputes Act, 1947 is concerned, the same is not made out on the basis of evidence led by workmen. Workmen have failed to prove pendency of industrial dispute regarding regularization of their services at the time of termination of their services by the management. Workmen filed on record photocopy of statement of claim dated 12.05.2004 regarding regularization of their service with management but workmen has / have not even cared to exhibit / mark this statement of claim, photocopy of which is there on judicial file, in the course of his / their evidence. Proceedings, if any, conducted pursuant thereto have also not been duly proved on judicial file. Documents Mark A and Mark B are their on judicial file but in the absence of reliance by workman on the statement of claim of the workmen regarding regularization of their services by the management, documents Mark A and B cannot be read with / connected with the statement of claim of workmen regarding regularization of their services by management. Mere depositions in the evidence affidavit of workmen in this regard does not serve any purpose particularly when possible supporting documentary evidence has not been duly / properly led / produced by workmen in his / their evidence. Workmen could Page 16 to 24 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/04.08.2014 Son Pal @ Sohan Pal & Ors. Vs. M/s. Hamdard Public School ID No. 292/14 have proved violation of section 33 of the Industrial Disputes Act, 1947 by summoning relevant record from the labour authorities, but workmen did not do so. Thus, workmen have failed to prove violation of section 33 of the Industrial Disputes Act, 1947.
HOWEVER, violation of provisions of section 25F of the Industrial Disputes Act, 1947 by the management is apparently made out in the totality of facts and circumstances of this case particularly keeping in view the stand taken by management in its WS, which management has failed to establish on judicial file. Management, in view of stand taken by it in the WS, could not have even pleaded about the compliance of the provisions of section 25F of the Industrial Disputes Act, 1947 by it at the time of termination of services of workman on 01.06.2004 by way of refusal of work. Various complaints made to labour authorities have been produced / proved as Ex. WW1/1 to Ex. WW1/6. Each of the workmen in his cross examination has been asked above efforts made by him in search of alternative employment on / after 02.06.2004. This also suggests that management admits that workmen worked with management lastly on / till 01.06.2004. Management has not even pleaded about absentism / abandonment of their services by the workmen on/after 01.06.2004. There is no pleading even / proof of compliance with the provisions of section 25F of the Industrial Disputes Act, 1947 by the management. Thus, it is observed that management terminated the services of workmen in violation of provisions of section 25F of the Industrial Disputes Act, 1947.
MERELY because management violated provisions of section 25F of the Industrial Disputes Act, 1947 does not necessarily mean that workmen are automatically entitled to reinstatement in service with management with full back wages. Whether workmen is / are entitled to reinstatement with full / Page 17 to 24 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/04.08.2014 Son Pal @ Sohan Pal & Ors. Vs. M/s. Hamdard Public School ID No. 292/14 partial back wages or lump sum compensation in lieu thereof (i.e. reinstatement with full / partial back wages) is a matter of discretion of the Industrial Adjudicator to be exercised by it keeping in view the totality of facts and circumstances of each case. Keeping in view the issues raised by management during trial of this case, reinstatement of workmen in service with management would not be in the interest of industrial peace. Thus, workmen are held to be not entitled to reinstatement. Even for being entitled to full / partial back wages workmen are supposed to establish on judicial file that they are unemployed through out despite his / their making serious efforts for alternative service after illegal termination of his / their services by the management. Workmen would not be entitled to full back wages when he / they does / do not make any / serious efforts in search of alternative entitlement after illegal termination of their services by the management. Workmen also would not be entitled to back wages when after termination of his / their service(s), workmen is / are equally / better placed earningwise then while in employment of management. In my considered opinion each of workmen is entitled to lumpsum compensation to the following extent, by also keeping in mind money value in 2014 of the amount of such compensation due / payable in 2004, in lieu of reinstatement / back wages / consequences of illegal termination of his service by management in violation of provisions of section 25 F of the Industrial Disputes Act, 1947: WORKMAN AT SERIAL NO. 1 WW11 MR. SON PAL @ SOHAN PAL Workman is claiming to be in service of management since 1993 with Rs. 2000/ as monthly wages. In his cross examination conducted on 13.03.2008 WW11 Mr. Son Pal deposed that, "... It is correct that I had not made any efforts to search for alternate employment after 2.6.04....". His lumpsum Page 18 to 24 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/04.08.2014 Son Pal @ Sohan Pal & Ors. Vs. M/s. Hamdard Public School ID No. 292/14 compensation is quantified at Rs. 56,000/ (Rupees Fifty Six Thousand Only). WORKMAN AT SERIAL NO. 2 WW1 MR. KUSH LAL Workman is claiming to be in service of management since 1996 with Rs. 2500/ as monthly wages. In his cross examination conducted on 04.10.2007 WW1 Mr. Kush Lal deposed that, "... It is correct that I had not made any efforts to search any alternate employment after 02.06.2004....". His lumpsum compensation is quantified at Rs. 50,000/ (Rupees Fifty Thousand Only). WORKMAN AT SERIAL NO. 3 WW2 MR. HAYAT SINGH Workman is claiming to be in service of management since 1997 with Rs. 1800/ as monthly wages. In his cross examination conducted on 04.10.2007 workman deposed that, "... It is correct that I had not made any efforts to search any alternative employment after 02.06.2004....". His lumpsum compensation is quantified at Rs. 36,000/ (Rupees Thirty Six Thousand Only). WORKMAN AT SERIAL NO. 4 WW3 MR. PURAN CHAND Workman is claiming to be in service of management since 1998 with Rs. 1800/ as monthly wages. In his cross examination conducted on 04.10.2007 workman deposed that, "... It is incorrect that I had not made any efforts to search any alternative employment after 02.06.2004. I am working with M/s Metlon India as Peon since last one year and I am getting Rs.3000/ per month...". His lumpsum compensation is quantified at Rs. 36,000/ (Rupees Thirty Six Thousand Only).
WORKMAN AT SERIAL NO. 5 WW8 MR. MOHAL LAL @ MOHAN LAL.
Workman is claiming to be in service of management since 1996 with Rs. 1800/ as monthly wages. In his cross examination conducted on 31.01.2008 Page 19 to 24 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/04.08.2014 Son Pal @ Sohan Pal & Ors. Vs. M/s. Hamdard Public School ID No. 292/14 workman deposed that, ".... It is wrong to suggest that I had not made any efforts to search for alternate employment from 2/6/04 till date. I am doing the work of farming. From the said work of farming I am earning Rs.1000/ 1500/ per month. I am doing the farming of my own. I am residing in my village since 2/6/04 and till date I am residing at my village...". His lumpsum compensation is quantified at Rs. 36,000/ (Rupees Thirty Six Thousand Only). WORKMAN AT SERIAL NO. 6 WW4 MR. BHOPAL CHAND.
Workman is claiming to be in service of management since 1996 with Rs. 1800/ as monthly wages. In his cross examination conducted on 04.10.2007 workman deposed that, ".... It is incorrect that I had not made any efforts to search any alternative employment after 02.06.2004. I have been working since 02.06.2004 but not on a regular basis. I am unemployed since last 15 - 20 days. Prior to that I was working in some dhaba and was getting salary of Rs. 1800/ per month. It is correct that since 02.06.2004 since 15 days prior to today I was working in hotels, dhabas etc. and I was getting salary of Rs.1800/ per month....". His lumpsum compensation is quantified at Rs. 36,000/ (Rupees Thirty Six Thousand Only).
WORKMAN AT SERIAL NO. 7 WW5 MR. SAGAR (SHIV SAGAR) Workman is claiming to be in service of management since 1997 with Rs. 1800/ as monthly wages. In his cross examination conducted on 04.10.2007 workman deposed that, ".... It is incorrect that I had not made any efforts to search any alternative employment after 02.06.2004. I am living at my village since last two years. I am doing the work of breaking stones and agricultural work. From the said work I am earning Rs.1000/ 1200/ per month.....". His lumpsum compensation is quantified at Rs. 36,000/ (Rupees Thirty Six Page 20 to 24 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/04.08.2014 Son Pal @ Sohan Pal & Ors. Vs. M/s. Hamdard Public School ID No. 292/14 Thousand Only).
WORKMAN AT SERIAL NO.8 WW12 MR. JAGDISH KUMAR Workman is claiming to be in service of management since 2000 with Rs. 1000/ as monthly wages. In his cross examination conducted on 13.03.2008 workman deposed that, ".... It is correct that I had not made any efforts to search for alternate employment after 2.6.04.....". His lumpsum compensation is quantified at Rs. 12,000/. (Rupees Twelve Thousand Only). WORKMAN AT SERIAL NO.9 WW15 MR. ALLAUDDIN Workman is claiming to be in service of management since 1998 with Rs. 1500/ as monthly wages. In his cross examination conducted on 03.05.2013 workman deposed that, "....It is wrong to suggest that I had not made any effort to search for alternate employment after 02.6.2004. I am residing at my village since 02.6.2004 till date and I am doing farming in my village. By doing farming I am earning about Rs.3000 4000/ per month......". His lumpsum compensation is quantified at Rs. 24,000/ (Rupees Twenty Four Thousand Only).
WORKMAN AT SERIAL NO.10 WW6 MR. HEMANT Workman is claiming to be in service of management since 2000 with Rs. 1200/ as monthly wages. In his cross examination conducted on 04.10.2007 workman deposed that, ".... It is incorrect that I had not made any efforts to search any alternative employment after 02.06.2004. I had worked with one Wincy caterers at Jangpura Extension as waitor and I was being paid @ Rs. 100/ per day. I had worked with him for one year before 2006. I remained unemployed from 2004 to 2005. Now a days I am on leave from Wincy caterers. It is wrong to suggest that I worked with Wincy caterers in 2004 and Page 21 to 24 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/04.08.2014 Son Pal @ Sohan Pal & Ors. Vs. M/s. Hamdard Public School ID No. 292/14 2005. I have not been provided of the facility of ESI from Wincy cateres. The name of the owner of Wincy caterers is A. K. Saini.......". His lumpsum compensation is quantified at Rs. 14,400/ (Rupees Fourteen Thousand and Four Hundred Only).
WORKMAN AT SERIAL NO.11 WW9 MR. BALWANT SINGH Workman is claiming to be in service of management since 2000 with Rs. 1200/ as monthly wages. In his cross examination conducted on 31.01.2008 workman deposed that, ".... It is incorrect to suggest that I had not made any efforts to search for alternate employment after 2.6.04. From 2.06.04 till date I am sitting idle at my hometown in Almora. I am dependent on my family who is supporting me........". His lumpsum compensation is quantified at Rs. 14,400/ (Rupees Fourteen Thousand and Four Hundred Only). WORKMAN AT SERIAL NO.12 WW7 MR. BHUPINDER Workman is claiming to be in service of management since 2000 with Rs. 1200/ as monthly wages. In his cross examination conducted on 04.10.2007 workman deposed that, "... It is correct that I had not made any efforts to search any alternative employment after 02.06.2004.....". His lumpsum compensation is quantified at Rs. 14,400/ (Rupees Fourteen Thousand and Four Hundred Only).
WORKMAN AT SERIAL NO.14 WW13 MR. MOHD. YASIN Workman is claiming to be in service of management since 1998 with Rs. 1200/ as monthly wages. In his cross examination conducted on 03.05.2013 workman deposed that, ".... It is correct that I had not made any effort to search for any alternate employment after 02.6.2004.........". His lumpsum compensation is quantified at Rs. 19,200/ (Rupees Nineteen Thousand and Page 22 to 24 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/04.08.2014 Son Pal @ Sohan Pal & Ors. Vs. M/s. Hamdard Public School ID No. 292/14 Two Hundred Only).
WORKMAN AT SERIAL NO.15 WW14 MR. NASIM AHMED Workman is claiming to be in service of management since 2000 with Rs. 1200/ as monthly wages. In his cross examination conducted on 03.05.2013 workman deposed that, ".... It is wrong to suggest that I had not made any effort to search for alternate employment after 02.6.2004. I am residing at my village since 02.6.2004 till date and I am doing farming in my village. By doing farming I am earning about Rs.3000 4000/ per month.........". His lumpsum compensation is quantified at Rs. 14,400/ (Rupees Fourteen Thousand and Four Hundred Only).
WORKMAN AT SERIAL NO.16 WW10 MR. HARISH CHANDER Workman is claiming to be in service of management since 2000 with Rs. 1200/ as monthly wages. In his cross examination conducted on 31.01.2008 workman deposed that, ".... It is incorrect to suggest that I had not made any efforts to search for alternate employment after 2.6.04. I am earning my livlihood by working as waiter in parties as and when I get and sometimes my parents support me. I am earning about Rs.500 700 per month from the said job. We are 7 - 8 people who work in a group and whoever gets the job we all go there and work together.......". His lumpsum compensation is quantified at Rs. 19,200/ (Rupees Nineteen Thousand and Two Hundred Only). WORKMAN AT SERIAL NO.17 WW16 MR. ALI Workman is claiming to be in service of management since 2000 with Rs. 1000/ as monthly wages. In his cross examination conducted on 03.05.2013 workman deposed that, ".... It is wrong to suggest that I had not made any effort to search for alternate employment after 02.6.2004. I am working in Page 23 to 24 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/04.08.2014 Son Pal @ Sohan Pal & Ors. Vs. M/s. Hamdard Public School ID No. 292/14 various hotels from time to time. I had worked at one Jamil dhaba for about 2
- 3 years. I am also doing the work on daily wages basis. I am earning about Rs. 100 150/ per day whenever I get the work. I was getting about Rs.2000/ per month while I was working in Jamil dhaba. I had worked in Jamil dhaba from 2004 - 2005 till 20072008........". His lumpsum compensation is quantified at Rs. 12,000/. (Rupees Twelve Thousand Only).
If the abovesaid lumpsum amounts of compensation are not paid by management to workmen within one month of publication of award, management shall pay interest @ 9 % per annum on the amounts of lumpsum compensation from the date of award till its payment. FURTHER, each of workman mentioned above is entitled to recover a sum of Rs.6000/ (Rupees Six Thousand only) as cost of litigation from the management.
Workmen at Sr. No. 13 Mr. Gautam and Sr. No. 18 Mr. Kamlesh are not entitled to any relief as they did not prove their case by appearing in witness box.
ISSUE NO. 3: RELIEF As per findings on issue no. 2.
REFERENCE IS ANSWERED ACCORDINGLY.
11. A copy of the award be sent to Office of the concerned Deputy Labour Commissioner for further necessary action.
12. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 04.08.2014
(ANAND SWAROOP AGGARWAL)
POLCXI: Karkardooma Courts: Delhi
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