Delhi District Court
Rajpat Yadav S/O Sh. Horil Ram Yadav vs M/S. Pick Up Auto India Pvt. Ltd on 28 March, 2014
Rajpat Yadav Vs. M/s. Pick Up Auto India Pvt. Ltd. DID No. 126/10
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI:
KARKARDOOMA COURTS: DELHI
DIRECT INDUSTRIAL DISPUTE (DID No. 126/10)
UNIQUE CASE ID No. 02402C00100872010
In the matter of :
Rajpat Yadav S/o Sh. Horil Ram Yadav,
R/o 107/5, Gaurav Nagar Ist, Prem Nagar - IInd,
Kerari Nehar, Delhi41
Through Karamsheel Mazdoor Sangharsh Union (Regd.)
B254, Naraina Industrial Area, PhaseIst, New Delhi28
........ Workman / Claimant
V/s.
M/s. Pick Up Auto India Pvt. Ltd.,
Through: Its Director's,
WZ690, Saini Vihar Mundka,
New Delhi 110041. .......... Management.
Date of Institution : 06.04.2010
Date of reserving for award : 07.03.2014
Date of award : 28.03.2014
STATEMENT OF CLAIM U/S. 10 (4A) OF THE INDUSTRIAL DISPUTES ACT, 1947.
AWARD
1. CASE OF WORKMAN AS PLEADED IN STATEMENTOFCLAIM FILED
ON 06.04.2010 UNDER SECTION 10 (4A) OF THE INDUSTRIAL DISPUTES ACT,
1947:
(i) Workman had been in the employment of management for last 15 years as
''Machineman'' (Skilled) with his last drawn salary as Rs.4000/ p.m. till the date of
termination of his services on 28.08.2009.
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(ii) Workman performed his duties to the entire satisfaction of the management and
never gave any opportunity of complaint as regards his work and behaviour and,
therefore, workman has blameless service record.
(iii) Management was not following rules and regulations, and was not providing
minimum facilities as provided by various labour laws. Management even did not
provide appointment letter, ESI & PF from the date of appointment, attendance card,
overtime charges, C.L. / P.L., yearly increment, minimum wages, bonus, festival offs etc.,
and management was also not maintaining proper service record and list of junior and
senior.
(iv) Workman was in regular and continuous demand for aforesaid facilities orally
from the management time to time but the management was lingering on the same on
one pretext or the other and, during the course of employment, management with a false
assurance to provide the same obtained workman's signatures / thumb impressions on
some blank papers, vouchers etc. number of times but failed to provide the same till date,
thereby, compelled the workman to make complaint regarding the matter to the
concerned authorities and, hence, the workman made a complaint to the labour
department on 27.08.2009 through his union. On this complaint, Labour Inspector, on
the very next day visited the premises of the management. There is every apprehension
that the management can misuse the abovesaid documents against the workman just to
grab his legal right / claim.
(v) Due to regular and continuous demand for legal facilities, and abovementioned
complaint and the visit of the Labour Inspector on 28.08.2009, management got annoyed
with the workman and, to teach the lesson, conspired against the workman by delaying
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the earned wages and withheld the same for the period from 01.07.2009 to 28.08.2009
and, on demand of the same again and again, the management all of sudden orally
terminated his services on 28.08.2009, without paying earned wages for the period
mentioned above, without giving any reason or without issuing any notice or paying
notice pay, retrenchment compensation compensation, gratuity, bonus, overtime wages,
earned leave or without issuing any chargesheet and without holding any enquiry.
(vi) Termination of the services of the workman in this fashion is illegal, unjustified,
unwarranted and against the principle of natural justice and in violation of Section 25F
of the Industrial Disputes Act, 1947 besides being an act of victimization and unfair
labour practice. It amounts to illegal retrenchment.
(vii) Work which was being taken from the workman is / was of permanent nature and
management kept another person in place of workman after terminating his services for
the same work. The juniors to the workman were still in the employment of the
management at the time of termination of services of the workman.
(viii) After termination of his services, workman visited the the management several
times but the management, instead of putting him back on job or clearing of his dues,
started giving threat for false implication in false criminal cases in case if the workman
visited the management again and again. The workman wants to join the duties back but
it is the management which is not allowing him to join the duties back. Management is
not ready to put the workman back on the duty.
(ix) Workman sent a demand notice/notice dated 05.09.2009, and again on
16.09.2009, through his union by Regd. Post as well as UPC post which was duly served
upon the management but the management failed to reinstate him or clear his dues till
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date and also did not bother to respond the same. Copies of the same was also sent to
the other relevant authorities.
(x) Workman to get back the employment made a complaint to labour department on
31.08.2009 and 07.09.2009 through his union and on the said complaint Labour
Inspector put his efforts but due to the adverse attitude and antilabour practice all the
efforts made by Labour Inspector went fruitless and Labour Inspector had handed over
his failure report to the union of the workman.
(xi) Workman is unemployed since the date of his termination. Despite his best
efforts he could not get any alternative employment and due to this reason workman is
totally dependent on his family, relatives, near and dears because of aforesaid wrong
doings of the management.
(xii) Workman never ever absented from his duties nor left the job of his own or ever
settled his accounts with the management and wants to join the services back but it is the
management which is not allowing the workman to join the duties back.
With these averments, workman prayed for an award directing the management to
reinstate him with full back wages, continuity of services with all consequential benefits
and allowing / granting cost of these proceedings in favour of the workman and against
the management.
2. CASE OF MANAGEMENT AS PLEADED IN WRITTEN STATEMENT OF
DEFENCE.
While denying the case as pleaded by the workman in the statement of claim,
management took the stand that it came into existence in the year 1998 and last drawn
wages and designation of the claimant are matter of record.
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The total number of employees working with the management are less than 10
and, therefore, the ESIC, Bonus Act and EPF are not applicable. Management is
running a tiny factory and, thus, the nature of work is such that it does not require
performance of any overtime. EL (sic) is payable only at the time of severance of
relationship and not otherwise. Claimant is guilty of unauthorized absenteeism,
therefore, the allegations of CL / EL (sic) not payable (sic) is devoid of any substance.
Management is duly paying minimum wages to its employees, which is being revised by
the government from time to time.
Management also denied the averments of the workman regarding his signatures /
thumb impressions having been taken on any blank papers or vouchers. Admittedly,
Labour Inspector visited the premises of the management and management apprised the
Labour Inspector about the claimant's unauthorized absenteeism and requested the
Labour Inspector to ask the claimant to join his duties so much so vide the telegram
dated 02.09.2009 and application dated 04.09.2009 filed before Labour Inspector,
management again requested the Labour Inspector to put the claimant on duty. The
claimant despite the said application and assurance made before the Labour Inspector
failed to join his duties. Management through the telegram dated 05.09.2009 addressed
to the union representing the claimant and vide letter dated 21.10.2009 asked the
workman to join his duties, so much so, the management in its reply / written statement
filed before the Conciliation Officer asked the claimant to join his duties but the
workman despite that failed to join his duties. Claimant started remaining absent w.e.f.
26.08.2009 thereby resulting into abandonment of his employment with the management
and was paid earned wages before the Labour Inspector. As per management, it is a case
of gross unauthorized absenteeism by the workman and not of alleged termination.
Further, as alleged, the name of the workman still exists on the rolls of the management
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and workman can join the duties immediately. As per management, case of workman
filed as direct individual industrial dispute does not fall with the definition of section 2A
of the Industrial Disputes Act, 1947, as admittedly the delinquent workman has not been
discharged, dismissed, retrenched or otherwise terminated by the management.
Management denied the service of demand notice upon it. As per management, after
26.08.2009 management has not been able to carry out any manufacturing activity and
the production activity, at the premises where claimant was employed, has come to an
halt and the credit of this stoppage of manufacturing activity goes to none other but to
claimant and his colleagues. As alleged, workman is gainfully employed and is earning
much more than what he was earning while in employment with the management. At
last, management prayed for dismissal of claim of workman with heavy cost.
3. REJOINDER
In the rejoinder to the WS of the management, workman denied the stand as
pleaded by management in the written statement of defence and reaffirmed the
averments made in statementofclaim. Workman, further, clarified that workman never
ever remained absent from his duties as alleged by management and, on the contrary,
workman's service were terminated by management illegally and in violation of section
25 F of the Industrial Disputes Act, 1947 and no telegram or letter has ever been received
by the workman or his union vide which workman was required to report for duty and
workman has no knowledge about the telegram sent to the Labour Inspector as no
Labour Inspector ever asked / advised him to report for duty. Workman clarified that
Labour Inspector never ever asked or advised the workman to join the duties back as
requested by the Management. Workman pleaded that he is ready and willing to join
back his duties with immediate effect unconditionally. Workman further pleaded that
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more than 20 workers were working with the management and, hence, all the provisions
of labour laws like ESIC, PF and Bonus are / were applicable upon the management but
the management just to avoid its liabilities and put to the workman in financial losses did
not provide any labour law facilities. Management prior to filing of the written statement
never offered the job to the workman. Workman further clarified that management is still
carrying out its manufacturing activity and production, and is achieving the target day by
day and earning profits much more than prior to 26.08.2009.
4. Vide order dated 08.03.2011 following issues were framed:
(i) Whether the workman is guilty of willful absence from his duties,
if yes, from what date and period? OPM.
(ii) Whether the services of the workman have been terminated
illegally and / or unjustifiably by the Management?OPW
(iii) Relief, if any.
5. EVIDENCE
Workman appeared in the witness box as WW1 Mr. Rajpat Yadav. Workman is
relying upon documents Ex.WW1/1:Complaint dated 27.08.2009 made by the union to
the Assistant Labour Commissioner; Ex.WW1/2:Demand Notice dated 05.09.2009 sent
by union to the management; Ex.WW1/3:Postal Receipt dated 05.09.2009; Ex.WW1/4:
Postal Receipt dated 16.09.2009; Ex.WW1/5:UPC dated 16.09.2009; Ex.WW1/6:
Complaint dated 31.08.2009 made by union to Assistant Labour Commissioner and
Ex.WW1/7:Complaint dated 07.09.2009 made by union to Assistant Labour
Commissioner. WE was closed on 25.09.2012 on the statement of Sh. Sanjay Sharma,
Adv. for the workman.
Management examined MW1 Mr. Bharat Bhushan Valecha and MW2 Mr.
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Deepak Kumar. Management is relying upon documents Ex.MW1/1:Board Resolution;
Ex.MW1/2 (colly.): Telegram and Receipt dated 02.09.2009; Ex.MW1/3: Application
dated 04.09.2009 filed before Labour Inspector; Ex.MW1/4 (colly): Telegrams and
Receipts dated 05.09.2009; Ex.MW1/5: Letter dated 21.10.2009 sent to the Union by the
management; Ex.MW1/6: Postal Receipt dated 21.10.2009; Ex.MW1/7: Letter dated
30.09.2009 sent to the workman by the management regarding unauthorisedly absenting
from duties; Ex.MW1/8: Postal Receipt dated 30.09.2009; Ex.MW1/9: Reply (WS) of
management filed before Conciliation Officer, Karampura, Delhi; Ex.MW1/10 (colly.):
Attendance register from April 2009 to 16.10.2012 and Ex.MW2/1 (colly. 8 pages):
Report of Labour Inspector with record of proceedings conducted on the complaints of
workman. On 19.09.2013, ME was closed on the statement of ld. counsel for the
management.
6. ARGUMENTS
I have heard Mr. Ajit Singh Adv. for the workman and Mr. K. K. Pandey,
Advocate for the management. Written submissions have been filed on behalf of
workman. Material on judicial file perused. I have given a thoughtful consideration to
the facts and circumstances of this case as emerging on the basis of material available on
judicial file.
7. My ISSUEWISE findings are as under:
ISSUE NO.1
Whether the workman is guilty of willful absence from his duties, if yes, from what date
and period? OPM.
ISSUE NO.2
Whether the services of the workman have been terminated illegally and / or
unjustifiably by the Management?OPW
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Both the issues are being dealt with under a common discussion in as much as
decision of the Court on one issue will have a direct bearing on the decision of the Court
on another issue. In fact, decision of the Court on one issue will determine the fate of
another issue. If issue no.1 is decided in favour of management, issue no.2 will have to
be decided against the workman. If issue no.2 is decided in favour of workman, issue
no.1 will have to be decided against the management.
Here case of workman is that his services alongwith other workmen were
terminated on 28.08.2009 by the management, which was annoyed with workman on
account of regular and continuous demand for the legal facilities by the workman, and
workman alongwith other workmen having made a complaint dated 27.08.2009
(Ex.WW1/1) through union to the Assistant Labour Commissioner raising demand for
legal facilities and salary for the month of July 2009 and consequential visit of the
Labour Inspector on 28.08.2009 at the premises of the management.
Case of the management is that workman is guilty of unauthorized absenteeism
w.e.f. 26.08.2009 who did not report for duty despite (i) telegram dated 02.09.2009
(Ex.MW1/2 (colly.)); (ii) application dated 04.09.2009 before Labour Inspector
(Ex.MW1/3); (iii) another telegram dated 05.09.2009 (Ex.MW1/4 (colly.)); (iv) letter
dated 21.10.2009 (Ex.MW1/5) and (v) another letter dated 30.09.2009 (Ex.MW1/7) and
despite offer made by management to join the duties during conciliation proceedings.
As against this, workman is relying upon complaint dated 31.08.2009
(Ex.WW1/6) made to Assistant Labour Commissioner regarding illegal termination of
his services on 28.08.2009 and requesting the Assistant Labour Commissioner to ensure
payment of unpaid salary and his reinstatement in service with management by making
the Labour Inspector to visit the premises of the management. Workman is also relying
upon demand notice dated 05.09.2009 (Ex.WW1/2) sent to the management as per
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which management on 04.09.2009 in the presence of Labour Inspector had called the
workman to join the duty on 05.09.2009 but when workman on 05.09.2009 reported for
duty at about 08.45 AM, management refused to avail the services of the workman. In
this regard, workman is also relying upon complaint dated 07.09.2009 (Ex.WW1/7)
made to the Assistant Labour Commissioner as per which management did not permit
entry of the workman in the establishment of the management and refused to avail the
services of workman.
It is in this background that this Court is to decide whether it is a case of
absenteeism / abandonment of his services by the workman or illegal termination of
services of workman by the management. Hon'ble Supreme Court of India in the case
law reported as G. T. Lad & Ors. V/s. Chemical and Fibres of India Ltd. (1979) 1 SCC
590 observed / ruled as under:
"5a. Re Question No.1: ........According to Black's Law Dictionary
'abandonment' when used in relation to an office means 'voluntary
relinquishment'. It must be total and under such circumstances as clearly to
indicate an absolute relinquishment. The failure to perform the duties pertaining
to the office must be with actual or imputed intention, on the part of the officer
to abandon and relinquish the office. The intention may be inferred from the acts
and conduct of the party, and is a question of fact Temporary absence is not
ordinarily sufficient to constitute an 'abandonment of office'.
6. From the connotations reproduced above it clearly follows that to
constitute abandonment, there must be total or complete giving up of duties so as
to indicate an intention not to resume the same. In Buckingham & Carnatic Co.
v. Venkatish (1964) 4 SCR 265, it was observed by this Court that under
common law an inference that an employee has abandoned or relinquished
service is not easily drawn unless from the length of absence and from other
surrounding circumstances an inference to that effect can be legitimately drawn
and it can be assumed that the employee intended to abandon service.
Abandonment or relinquishment of service is always a question of intention, and
normally, such an intention cannot be attributed to a employee without adequate
evidence in that behalf. Thus, whether there has been a voluntary abandonment
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of service or not is a question of fact which has to be determined in the light of
the surrounding circumstances of each case."
Also, Hon'ble Delhi High Court in the case law reported as Shri Shiv Kumar V/s.
Hansita 2011 LLR 13 observed / ruled as under:
"8. It is a settled legal position that the abandonment of service cannot be
readily inferred. Abandonment of service is a question of intention which can be
gathered from the totality of the facts and circumstances of each case. There has
to be a clear evidence on record to show that despite grant of reasonable
opportunity to the employee by the management, he failed to join back his duties
without any sufficient reasons and therefore in the absence of any such cogent
and convincing evidence, voluntarily abandonment on the part of the employee
cannot be readily inferred.......".
Further, Hon'ble Delhi High Court in the case law reported as M/s Fateh Chand V/s.
Presiding Officer, Labour Court and Anr. MANU/DE/0137/2012 observed / ruled as under:
"7. ........... It is also no more res integral that even in a case of unauthorized
absenteeism or to prove abandonment of service on the part of the workman the
management must place on record necessary material to prove that enough
efforts were made by it to call upon the workman to resume back his duty and the
workman has shown his clear reluctance for the same....................
Undoubtedly, unauthorized absenteeism is a ground for termination ad has been
held to be misconduct in a catena of judgments. But when is it an unauthorized
absenteeism is to be determined from the facts and circumstances of each
case.....".
8. It is also a settled legal position that abandonment of service is different
from absenteeism. Abandonment of service is the voluntarily relinquishment of
ones services with the intention not to resume the same. It is a matter of
inference to be drawn from the facts and circumstances of each case and mere
absenteeism for a continuous period does not mean that the employee has
abandoned his service. The management has to bring on record sufficient
material to show that the employee has abandoned the service and abandonment
cannot be attributed to the employee without there being sufficient evidence. On
the failure to report for duty, the management has to call upon the employee and
if he refuses to report, then an enquiry is required to be ordered against him and
accordingly action taken. In the absence of anything placed on record by the
petitioner management, no presumption against the respondent can be
drawn.........".
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With above legal background in mind, now this Court shall proceed to decide this case on merits.
MW1 Mr. Bharat Bhushan in his cross examination deposed that, "...... The workman Rajpat Yadav worked with the Management for about 15 years. I cannot say whether the workman worked with the Management since the year 1998 or not. It is correct that the Management did not provide the legal facilities like appointment letter, ESI and PF, attendance card etc........ It is correct that the workman filed a complaint i.e. Ex.WW1/1 before the labour inspector on 27.08.2009. It is correct that on the complaint Ex.WW1/1 one labour inspector visited the Management's premises on 28.08.2009...................".
Thus, admittedly, (i) workman worked with the management for 15 years; (ii) management did not provide legal facilities like appointment letter, ESI and PF, attendance card etc. to the workman; (iii) workman made complaint Ex.WW1/1 (dated 27.08.2009) and (iv) labour inspector visited the Management's premises on 28.08.2009 on the said complaint dated 27.08.2009. The Labour Inspector who visited the management on 28.08.2009 has been examined by management as its witness as MW2 Mr. Deepak Kumar, who proved on record his report alongwith record of proceeding conducted by him on various dated as Ex.MW2/1 ( 8 pages). As per report Ex. MW2/1 (1st page of Ex.MW2/1 (8 pages)) at the time of visit of the Labour Inspector 09 workmen as detailed in proceedings, collectively Ex. MW2/1, were found working in the management. Workman named in Ex. MW2/1 are Kamre Alam, Rajpat Yadav, Ram Chander, Daya Ram, Atma Ram Yadav, Jai Kishan Verma, Ashok Kumar, Ramesh Kumar and Ravi Kumar. Thus, as per the evidence of the MW2 Mr. Deepak Kumar, Labour Inspector, the workman was working with management on 28.08.2009. Thus, Page 12 to 19 (ANAND SWAROOP AGGARWAL) POLC-XI / KKD / DELHI / 28.03.2014 Rajpat Yadav Vs. M/s. Pick Up Auto India Pvt. Ltd. DID No. 126/10 stand of the management that workman resorted to absenteeism w.e.f. 26.08.2009 cannot be believed. Preponderance of probabilities in the totality of facts and circumstances of this case suggest that in all likelihood the services of workman were terminated by management on 28.08.2009 in the facts and circumstances as alleged by the workman.
Attendance register Ex. MW1/10 relied upon by the management also cannot be relied / believed in as much as the same nowhere bears the signatures of the workman or anyone on behalf of management. It is not the case of management that workman himself marked his attendance on Ex.MW1/10. Ex.MW1/10 pertains to period from April 2008 to October 2012. On careful perusal of Ex.MW1/10 and in particular keeping in view the pen / ink used in Ex.MW1/10, the possibility of the same having been prepared in one go cannot be ruled out altogether. MW1 Mr. Bharat Bhushan in his cross examination deposed that, "........... The management use to maintain only attendance register and wages register of its employees............". Obviously, wages of the employees can be calculated keeping in view the attendance register and production of wages register by the management could have corroborated the entries in the attendance register but management has not produced the wages register, which it admittedly maintained in view of above depositions of MW1 Mr. Bharat Bhushan.
Also, it is noted that as per Ex.MW2/1, management did not produce the records (i.e. the attendance register and the wages register maintained by it) before the Labour Inspector appearing in witness box as MW2 Mr. Deepak Kumar despite his ( MW2 Mr. Deepak Kumar) direction to produce the same before him on 09.09.2009 and 16.09.2009. Preponderance of probability suggest that the record was not produced by management, possibly, because it was not maintained by management, and management subsequently purposely prepared the same (the attendance register Ex.MW1/10 only) to suit its objective. Management has not clarified who used to mark the attendance of the Page 13 to 19 (ANAND SWAROOP AGGARWAL) POLC-XI / KKD / DELHI / 28.03.2014 Rajpat Yadav Vs. M/s. Pick Up Auto India Pvt. Ltd. DID No. 126/10 workman in Ex.MW1/10. MW1 Mr. Bharat Bhushan nowhere specifically deposed that he himself used to mark attendance of the workman on Ex.MW1/10. The person who used to mark attendance of the workman has not been named / examined by the management. Thus, it is observed that management in normal course of its business even did not maintain the attendance register of the workmen.
Vide Ex. MW2/1 (page no.5, proceedings dated 04.09.2009 of the Labour Inspector MW2 Mr. Deepak Kumar) direction were given to the workman to join duty immediately or w.e.f. 05.09.2009. Most likely these directions were given on the application of the management dated 04.09.2009 (Ex.MW1/3). The said application is silent as regards the date with effect from which workman resorted to absenteeism. On 05.09.2009 itself workman sent demand notice Ex.WW1/2 to the management and informed that he has not been allowed to join his duties on 05.09.2009 at 8.45 AM. Management also sent Telegrams Ex.MW1/4 (colly.) to the Labour Inspector as well as the union stating that workman have not reported for duty. Workman on 07.09.2009 made a complaint, Ex.WW1/7, to Assistant Labour Commissioner complaining that workmen have not been permitted to join their duties by the management on 05.09.2009. As per Ex.MW2/1 (page no.2, proceedings dated 09.09.2009 before the Labour Inspector, MW2 Mr. Deepak Kumar) workmen were paid wages for August 2009. These proceedings nowhere mention that management complained to the Labour Inspector MW2 Mr. Deepak Kumar regarding workman not joining the management on 05.09.2009. The said proceedings, however, mention that on 04.09.2009 all the workmen were taken back for duty but they were not allowed to join the duties on 05.09.2009. Also, as per these proceedings workmen were ready to join their duties and accordingly management was directed to reinstate the workmen w.e.f. 10.09.2009. Also management was directed to produce the record on 16.09.2009. As per proceedings Page 14 to 19 (ANAND SWAROOP AGGARWAL) POLC-XI / KKD / DELHI / 28.03.2014 Rajpat Yadav Vs. M/s. Pick Up Auto India Pvt. Ltd. DID No. 126/10 dated 16.09.2009, workmen appeared before the Labour Inspector on 16.09.2009 alongwith their ARW but none appeared for the management. As per proceedings dated 16.09.2009, workmen informed the Labour Inspector MW2 Mr. Deepak Kumar that workmen were not kept on duty by the management on 10.09.2009. Failure of the management to attend the Office of Labour Inspector on 16.09.2009 makes the stand of the workman, that workmen reported for duty on 10.09.2009 but management did not allow them to join the duties, as unrebutted. Proceedings dated 09.09.2009 were conducted in the presence of both the management and workmen whereby management was directed to make the workmen to join their duties w.e.f. 10.09.2009, but, still, in the letters Ex.MW1/5 and Ex.MW1/7, management did not specifically plead that workmen did not join the duties on 10.09.2009 as directed on 09.09.2009.
Admittedly, workman worked with the management for about 15 years. It is not the case of management that workman during the long tenure of 15 years of his service with the management ever resorted to absenteeism or misconducted himself regarding his duties towards the management. Also, it is not the case of management that there was any reason / motive for the workman to all of sudden leave his service with the management after having rendered his services to the management for a long period of 15 years. In such circumstances, it appears highly improbable that workman for no reason / motive would start absenting himself from his duties w.e.f. 26.08.2009 as alleged by the management. It also appears highly improbable that workman would not continue with his previous long service of about 15 years if management had really given him opportunity to join back his duties as alleged / pleaded by the management. It is alright that management pleaded that at different stages of the case it offered the workman to join back his duties, but in the totality of the facts and circumstances of this case, said offer given by the management does not appears to be real and genuine. It so Page 15 to 19 (ANAND SWAROOP AGGARWAL) POLC-XI / KKD / DELHI / 28.03.2014 Rajpat Yadav Vs. M/s. Pick Up Auto India Pvt. Ltd. DID No. 126/10 appears that such offers were given by the management on paper only and management never really intended that workman should join his duties back with the management. Also, it is noted that management in the WS pleaded that services of the workman were never terminated by it and workman can join his duties immediately. Thereafter, on 21.01.2013 management moved an application seeking directions for the workman to join his duties with immediate effect at Plot No. 127, Sector - 3, IMT, Manesar, Gurgaon, Haryana alleging that management has closed down its manufacturing activities w.e.f. 16.10.2012 at Plot No. 690, Saini Vihar, Mundka, New Delhi - 110041. What is pertinent to note that no such specific application was moved at the earlier stage of trial. Also in the course of cross examination of workman, on 25.09.2012, management did not insisted for directions to the workman to join his duties back with the management despite the fact that workman in his cross examination deposed that, "... I am ready and willing to join my duties with the management even today also......". Abovesaid application, as the facts suggests, was purposely moved after the closure of manufacturing activities by the management at Plot No. 690, Saini Vihar, Mundka, New Delhi - 110041 so that workman may not be inclined / willing to join the management at Plot No. 127, Sector - 3, IMT, Manesar, Gurgaon, Haryana and, at the same time, managements fulfills its obligations atleast on paper to call the workman to join back his duties. In the course of cross examination of workman workman was asked about any documentary proof to show that workman had visited the management. Obviously, there can be no document to show that workman visited the management for joining his duties with the management. Merely because workman do not have any documentary proof to show that he visited the management for joining his duties, does not mean that workman never visited the management for joining his duties. In his cross examination workman repeatedly deposed that he visited the management several times for joining Page 16 to 19 (ANAND SWAROOP AGGARWAL) POLC-XI / KKD / DELHI / 28.03.2014 Rajpat Yadav Vs. M/s. Pick Up Auto India Pvt. Ltd. DID No. 126/10 his duties but management did not allow him to resume back his duties.
In view of above detailed discussion, preponderance of probabilities suggests that workman did not abandon his service with the management and management appears to have illegally / unjustifiably terminated his services. Issue no.1 is accordingly decided against the management and issue no.2 is decided in favour of the workman. ISSUE NO.3 : Relief, if any.
Merely because issue no.2 has been decided in favour of the workman does not necessarily mean that workman is automatically entitled to reinstatement in service with the management with full back wages. In the case in hand, the question of reinstatement of workman in service with the management does not arise in as much as on 21.01.2013 an application was moved by the management seeking issuance appropriate directions to the workman to join his duties with the immediate effect at Plot No. 127, Sector - 3, IMT Manesar, Gurgaon. Haryana. Management alleged that management has closed down its manufacturing activities w.e.f. 16.10.2012 at Plot No. 690, Saini Vihar, Mundka, New Delhi - 110041 and presently not carrying any manufacturing activity at Delhi. Workman filed reply to this application. On 28.01.2014, this Court passed the following order: "28.01.2014 Present : Workman with Mr. Ajit Singh, Advocate.
Mr. K.K. Pandey, Advocate for the management with Mr. Bharat Bhushan Valecha, Director of the management company.
No settlement arrived at between the parties. Ld. counsel for the management submitted that management company has already closed its unit/factory at Delhi. He further submitted that management is ready and willing to take back the workman on duty provided they will join at Manesar, Gurgaon. Also ld. counsel for the management has submitted that management is further ready and willing to pay a sum of Rs.1000/ per month to the workman towards conveyance charges. In reply ld. counsel for the workman submitted that Page 17 to 19 (ANAND SWAROOP AGGARWAL) POLC-XI / KKD / DELHI / 28.03.2014 Rajpat Yadav Vs. M/s. Pick Up Auto India Pvt. Ltd. DID No. 126/10 workman have a settled life in Delhi and they are not able to join at Manesar, Gurgaon.
With these observations/submissions the application moved by the management for rejoining the workman back on duty stands disposed off..." On the basis of sale deed filed on record by the management it appears that management has sold away the premises from where it was operating its factory at Delhi and has shifted to Manesar, Gurgaon, Haryana and workman is not able to join back his duties as workman is having settled life in Delhi. Now the question arises as to what sum deserves to be granted in favour of the workman and against the management as lump sum compensation on account of illegal / unjustified termination of services of workman by the management. Workman allegedly searched for job but has not file on record any document / application to show that he tried to search the job. Surprisingly, workman is not aware about his monthly expenses. Workman is also maintaining mobile phone whose bill is allegedly borne by his father. Workman in the statementofclaim alleged that he is totally dependent on his family, relatives, and near and dears but no such family member etc. has been examined by the workman in the Court. It appears highly improbable that workman might have remained totally unemployed throughout the period from date of termination of his services by the management till today. In any case, in view of order dated 28.01.2014 workman is having a settled life in Delhi and he is not able to join the management at Manesar, Gurgaon, Haryana. If the workman would have been unemployed throughout, being guided by normal human behaviour, workman would have readily agreed to join the management even at Manesar, Gurgaon, Haryana. But workman did not opt to join the management at Manesar, Gurgaon, Haryana. However, it is noted that on account of illegal / unjustified termination of his services by the management workman would have suffer financial losses towards loss of Page 18 to 19 (ANAND SWAROOP AGGARWAL) POLC-XI / KKD / DELHI / 28.03.2014 Rajpat Yadav Vs. M/s. Pick Up Auto India Pvt. Ltd. DID No. 126/10 income which otherwise he was having continuously for a period of 15 years. Management has not proved on judicial file that workman is as a matter of fact gainfully employed somewhere.
To my mind, grant of lump sum compensation to the tune of Rs.1,70,000/ (Rupees One Lac Seventy Thousand only) to the workman for illegal / unjustified termination of his services by the management and for consequences thereof would meet the ends of justice. If this amount of Rs.1,70,000/ (Rupees One Lac Seventy Thousand only) is not paid to workman within one month of publication of this award, 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. 7,000/ (Rupees Seven Thousand only) is also awarded to workman as costs of litigation payable by the management.
8. A copy of the award be sent to Office of the Deputy Labour Commissioner (District West) for further necessary action.
9. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 28.03.2014
(ANAND SWAROOP AGGARWAL)
POLCXI, Karkardooma Courts, Delhi
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