Delhi District Court
Between The vs The on 22 March, 2013
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IN THE COURT OF SH.S.S.MALHOTRA, PRESIDING OFFICER,
LABOUR COURT NO. IX, KARKARDOOMA COURTS, DELHI
ID NO. 246/11
Unique Case I.D. No. 02402C0145842011
BETWEEN THE WORKMAN
Sh.Vishal
s/o Sh.Ram Hari
Represented by
Delhi General Mazdoor Front,
BK1/33B, Janta Flat, Shalimar Bagh,
Delhi88
AND THE MANAGEMENT OF
M/s Golyan Metal Pvt.Ltd.
A104/13, Wazirpur Industrial Area,
Delhi52
Date of Institution : 09.05.2011
Date on which award reserved : 04.03.2013
Date of passing of award : 22.03.2013
AWARD
1 Vide this order, I shall dispose off the reference no. F. 24/ID.
(637)/10/NWD/(53)/10/Lab./375660 dated 25.04.2011 as received from
the Dy. Labour Commissioner, North West District, Govt. of NCT of Delhi
to the following effect:
"Whether services of Sh.Vishal s/o Sh.Ram Hari have been illegally
and/or unjustifiably terminated by the management; and if yes, to what
relief is he entitled and what directions are necessary in this respect?".
Vishal vs M/s Golyan Metal Pvt.Ltd.
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2 After receiving of the reference, notice was sent to the
claimant/workman with direction to file the statement of claim which he has
filed and as per the statement of claim he had been working with the
management since 2000 as a 'helper' and his last drawn salary was
Rs. 3600/ per month and he was working with full dedication and had
never afforded any opportunity of complaint to the management. There
were about 200 employees who had been working with the management in
shifts and each shift was of 12 hours and every workman was compelled to
work for 4 hours extra per day that too without paying overtime charges.
The management M/s Golyan Metal Pvt. Ltd. A104/13, Wazirpur
Industrial Area, Delhi52, M/s Anil Metal Industries A104/9, Wazirpur
Industrial Area, Delhi52 and M/s Vinayak Metal Industries A104/4 are
being operated by Sh.Mahesh Leela, Roshan Lal and Sh.Vinod. They all are
in the production line of same material and as per their own convenience &
requirement, the managements used to extract work from the concerned
workman for their establishments and the workman had never been issued
any transfer letters and as such the workman was never informed that what
is his proper management and the management even had never been
maintaining proper service records of their employees nor any legal
facilities like appointment letter, attendance card, wage slip, leave book,
bonus disbursement record, attendance and wage register, casual leave,
bonus, ESI and PF were being provided to the workman and even ESI card
which was being furnished to the workman subsequently used to be
changed, as the working place of the workman used to be changed and on a
Vishal vs M/s Golyan Metal Pvt.Ltd.
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fresh date of appointment , fresh ESI Card was being given. The
contribution towards PF was being deducted by the management but no
such detail was being provided to the workman rather the management had
been obtaining the signatures from their employees from time to time with
sole motive to utilize the blank papers as per their convenience and
subsequently when the workman alongwith other employees started
demanding legal facilities and proper implementation of the service
facilities and also demanded the salary as per minimum wages of their
designation, the management started threatening the workman alongwith
other employees by stating that they would be implicated in false cases and
as such the workman alongwith other employees of the management joined
the union namely General Mazdoor Front Union to fight for their demands.
It is further stated that when the present workman who was deputed with
M/s Vinayak Metal Industries protested for all such demands, the
management got annoyed and some gunda elements at the instance of the
management attacked the workman and other coemployees on 26.8.2010
with the intention to harm them with bodily injury and even the services of
the workman were also terminated on the same day by the management
without any reason, without giving any notice in writing or any
compensation. It is further submitted that neither any domestic inquiry was
conducted nor they were chargesheeted before termination and as such
aggrieved from this fact, the workman issued a demand notice on 31.8.2010
through the Union but the management did not give any attention to the
notice. The workman thereafter filed a complaint before the Dy.Labour
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Commissioner through Union where the management appeared and stated
that the management has already been closed down w.e.f 31.3.08 and all the
three managements have been merged in M/s Golyan Metal Pvt.Ltd. which
is presently running by the management. It is further stated that after
receiving the demand notice/ summon from the labour department , the
management called some employees including the workman by issuing
letters dt.27.8.2010, 30.8.2010, 31.8.2010 & 11.9.2010 and even disbursed
earned wages to some of the workmen before the Labour Inspector but the
workman was not paid the earned wages and the workman even approached
the management after receiving said letters but the management threatened
him and refused to take him back on duty and thereafter the conciliation
proceedings were initiated by the workman which also failed and ultimately
the matter was referred before this court for adjudication and the workman
has filed the statement of claim with a prayer that award be passed in favour
of the workman and against the management thereby holding that the
services of the workman were illegally and unjustifiably terminated by the
management and he is entitled to reinstatement with full back wages and
other consequential reliefs.
3 The management was served and it filed its written statement by
taking Preliminary Objections that the claimant started remaining absent
unauthorizedly from his duties w.e.f 26.8.2010 and thereafter letters were
written by the management on 27.8.2010, 30.8.2010, 31.8.2010, 11.9.2010,
30.9.2010, 12.10.2010 and 26.10.2010 but the claimant did not report for
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duty and thus it was deemed by the management that the workman had
abandoned the services with the management of his own which fact was
mentioned in the letter of the management dt.26.10.10 and it is stated that
from all these facts it is clear that the workman has left the services of his
own by abandoning his services and, therefore, no Industrial dispute
remains and the Labour Court has no jurisdiction to adjudicate upon the
claim filed by the workman and even otherwise the management has closed
its unit w.e.f 21.2.2011 and the workman otherwise is not entitled for any
relief after the date of closure. As far as merits are concerned, relationship
is not disputed. However, length of period is denied and it is denied that the
claimant worked with the management since 2000 or his last drawn wages
were Rs.3600/p.m and it is stated that the factory of the management
came into existence on 1.4.08 only and, therefore, question of the claimant
concerned being employed with the management prior to that does not
arise. It is further submitted that the claimant was working with the
management w.e.f 1.4.08 and his last drawn wages were Rs.5280/p.m
and he ultimately abandoned his services w.e.f 26.8.2010. It is denied that
about 200 employees had been working for production in two shifts for the
management and it is submitted that in all the three factories about 6080
employees were employed. The management never used to take overtime
from its employees and whenever the overtime was being taken from the
workman, the workman was used to be paid overtime but as far as present
workman is concerned, he was never put to work for overtime and as such
the question of his being paid overtime charges does not arise. It is also
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submitted that M/s Anil Metal Industries, M/s Vinayak Metal Industries and
M/s Gohlyan Metal Industries were closed w.e.f 31.3.08 and the workers
employed therein had received their full and final settlement of account and
thereafter some of them have taken employment with M/s Golyan Metal
Pvt.Ltd i.e.the present management. It is further submitted that the claimant
never employed with any of the aforesaid firms. It is denied that the legal
facilities were not being provided to the workman or that service record of
the employees were not being maintained as alleged. It is also denied that
ESIC benefits were being given to the workers after several years of their
employment or that the management was deducting PF from the wages of
the employees and was not providing the record pertaining to the said
amount. It is further submitted that the claimant concerned had never
demanded any legal benefits from the management as the management was
providing all the benefits as applicable to it and it is further denied that the
workman was deputed by the management at M/s Anil Metal Industries,
A104/9, Wazirpur Industrial Area, Delhi52 or that the claimant concerned
with other coworkers opposed the illegal activities of the management or
the management called some gunda elements inside the factory on
26.8.2010 or they threatened the claimant with dire consequences or that
the management terminated the workman on the same day. It is further
reiterated that the workman himself started remaining absent with other
workers w.e.f 26.8.2010 and did not join despite writing various letters to
the workman. It is denied that the workman alongwith other workmen
approached the management after receiving the letters of the management ,
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but the management threatened him and refused to take him back on duty
and it is reiterated that the management had even asked the workman to
come alongwith the Labour Inspector and join the duty but the workman did
not join the management. Facts of the preliminary objections are again
reiterated and it is prayed that the claim of the workman be dismissed.
4 Workman thereafter filed rejoinder thereby denying all the facts of
the written statement and reiterating the facts of statement of claim as
correct. After completion of the pleadings, following issues were framed on
16.1.2012:
1 Whether the workman has abandoned his services and started
absenting from the duty and as such there is no industrial dispute in between the
parties?OPM
2 Whether the management has closed its manufacturing activities
permanently on 21.2.2011 , if so, its effects? OPM
3 Whether the services of the workman have been terminated illegally
and/or unjustifiably by the management and if yes, to what relief is he entitled and
what directions are necessary in this respect? OPW
4 Whether the claimant is entitled to the relief claimed? OPW
5 Relief
5 After framing up of the issues, the workman was directed to
lead evidence. Workman has examined himself as WW1 and closed his
evidence and thereafter the management has examined Sh.Vinod Aggarwal
as M.W1 and closed its evidence.
6 I have heard the arguments and perused the record. My issuewise
findings are as under:
ISSUE NO.2
7 Issue no.2 is being taken up first as the issue no.1 & 3 are the
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connected issues and would be disposed off simultaneously. The onus to
prove the issue no.2 that it has closed its manufacturing activities w.e.f
21.2.2011, was upon the management. The management in the WS has
submitted that the factories of the management situated at A104/12,
Wazirpur Industrial Area, Delhi52, A104/9, Wazirpur Industrial Area,
Delhi52 & A104/4, Wazirpur Industrial Area, Delhi52 are permanently
closed w.e.f 21.2.2011 and the management has closed all his business
activities. However, in para no.6 of the written statement on merits, the
management had stated that factories M/s Anil Metal Industries, M/s
Vinayak Metal Industries and M/s Gohlyan Metal Industries were closed
w.e.f 31.3.08 and the workers employed therein had received full and final
settlement of account. The workman in his statement of claim has stated
that this fact was not in the knowledge of the workman earlier as it was
never informed, and this fact came to the knowledge of the workman for
the first time when the conciliation proceedings were initiated and the
management has informed this fact to the Labour Inspector as well as to the
workmen and prior to that all the factories were running and even now the
management is running all these factories. M.W1 Sh.Vinod Aggarwal has
deposed in terms of his statement by way of affidavit and has relied upon
the documents i.e.M.W 1/ 2 to Ex.MW 1/ 4 which are the photocopies of the
letter dt.26.11.10 for surrender of registration certificate under Central
Excise for three factors, Ex.M.W 1/5 is the photocopy of letter dt.4.3.2011
to the ESIC regarding the closure of the factories/business activities of the
management, Ex.M.W 1/6 is the photocopy of letter dt.8.3.2011 sent to EPF
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department , Ex.M.W 1/7 to Ex.MW 1/9 are photocopies of letter dt.
4.3.2011 sent to Chief Inspector of Factories regarding the permanently
closure of the factories of the management, Ex.M.W 1/10 to ExMW 1/ 12
are the photocopies of the return filed by the management under EPF Act
for the year 2008, 2009 and 2010. He was cross examined by Ld.ARW and
in cross examination, he denied that more than 200 employees were
employed in the factory and he volunteered that there were around 60
employees in total and there used to be 8 hours shift working and no
overtimes used to be taken. He denied the suggestion that the management
has stated in the conciliation office that all the three firms have been closed
and have been merged into Golyan Metal Pvt.Ltd. and also denied the
suggestion that the management is still running these factories and he
volunteered that all the factories have been closed and all the concerned
department have been apprised of all these facts. The management to prove
this issue has also cross examined WW1 but WW1 denied the suggestion
that the management has permanently closed on 21.2.2011 and when asked
as to why he is denying this fact and why he is saying that the management
is running factories, he deposed that he has been saying so as he had been
told by his coworkers who are working in nearby factories. He volunteered
that he has not seen personally that the management is still running.
8 As far as closure of the management w.e.f 21.2.2011 is concerned,
Ld.ARW could not impeach the testimony of M.W1 nor he could impeach
the documentary evidence with respect to giving information by the
management to ESI, EPF department in connection of the factories and
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other concerned authorities regarding closure. Therefore, the issue no.2 is
decided by holding that the management has been able to prove that M/s
Golyan Metal Pvt.Ltd.has closed its functioning from 21.2.2011.
ISSUE NO.1 & 3
9 Onus to prove the issue no.1 was upon the management and it had to
prove that the workman had abandoned the services intentionally and
started absenting from the duty and onus to prove the issue no.3 was upon
the workman and it had to prove that his services have been terminated
illegally and unjustifiably by the management. Since both these issues are
inter related as if the management would have been able to prove that the
workman had abandoned the services then services of the workman would
not be deemed to have been terminated and if the management has not been
able to prove that there is willful abandonment on the part of the workman
then the issue that the services of the workman have been terminated
illegally would stand proved. However, the issue no.1 would be discussed
first. The contention of the management is that the workman started
absenting unauthorizedly from 26.8.2010 and thereafter the management
has written letters dt.27.8.10, 30.8.10, 31.8.10, 11.9.10, 30.9.10, 12.10.10
and 26.10.10 which were exhibited as WW 1/MX1 to WW1/MX7 /
However, the workman subsequently admitted that whenever he received
these letter, he went for duties but he was refused duties by the
management. Even otherwise, the said letters have not been disputed by the
workman as in para no.13 he admitted that after receiving such letters, the
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workman visited the management and even on that date the workman was
not allowed to resume the duty and was not taken back on duty rather they
were threatened. Therefore, much stress can not be given about writing or
posting of these letters . The management was even not required to prove
that these letters have been written by the management or not once the
receiving of such letter is admitted by the workman. The fact which has to
be considered to prove this issue is as to whether after receiving such
letters, the workman did not go to join the duty of the management or
whether the workman went there & the management did not allow him to
do the work. Ld.ARM has argued that after 4 letters, there is another letter
dt. 30.9.10 & 12.10.10 by which the workman was told to join the
management and even they may come with the Labour Inspector so that the
matter can be settled once for all. Ld.ARM has argued that once the
management has written the letters to the workman and the workman has
not turned up to join the duty and the management even otherwise can not
do more than this effort to ask the workman to come with the Labour
Inspector and in such circumstances, he would be deemed to have
abandoned the job & there was no necessity for conducting any inquiry
against the workmen who have been willfully absenting from duty. He has
argued that even the workman could not give exact details about his alleged
termination on 26.8.2010 and, therefore, he has not been able to prove his
termination and for that he has relied upon Diamond Toys Co.(P) Ltd.vs
Toofani Ram & Anrs. wherein it was interalia held by the Hon'ble High
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Court of Delhi that once the basis on which a workman claimed that he was
terminated stands knocked out, then a heavy onus shifts to the workman to
show that his services were actually terminated by the management and to
show the reasons for termination and it was further held that the
termination is a positive act of the management and the management has
to do this act for some reasons".
10 Ld.ARW has not been arguing the matter and for that reason the court
has not been able to get any assistance from the Ld.ARW. Court otherwise
has perused the record. Here is the management who is claiming that the
workmen have abandoned their job and it has written around 7 letters to the
workman individually. The workman in the statement of claim has alleged
that the management has terminated his services on 26.8.2010 on which
date the management had called some outside gunda elements and on
demanding PF slip, he was beaten and thrown out of the factory. Claim of
the management is that nothing has happened on 26.8.2010 rather the
workman had started absenting from his services w.e.f 26.8.2010. Court has
observed this particular fact that if the workman remained absent only on
26.8.2010 as is being highlighted in the present matter then in all
circumstances, the management was supposed to wait for the workman
atleast for few days so that it may inquire from the workman as to why he
did not come on 26.8.2010 and there was no necessity at all to serve the
workman or to send him the notice on 27.8.2010 i.e.on the next day itself
thereby asking him as to why he is running absent and he should join. The
question of 'running absent' does not arise in one day rather the language
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even it would have been so, it would have been that the workman was
absent on 26.8.2010 i.e.one day and not that he was 'running absent' as he
would have been running absent for so many days . The language of the
letter dt.26.8.2010 is otherwise not to the effect that the workman was
running absent unauthorizedly rather the word' authorized absence' has been
used. The management should have waited atleast for 45 days so as to
inquire as to why the workman had not come on 26.8.2010. . On inquiry
raised by the court, Ld.ARM has stated that letter was written on 27.8.10
itself as in the connected matter, the date of termination is 9.7.2010 & the
management was facing such threats even in other cases and as such it was
issued on very next day. Even if , the contention of the management is
accepted then also the court is of the opinion that if no such incident as
alleged would have happened on 26.8.2010 then there was no necessity with
the management to write a letter dt.27.8.2010 which otherwise is admittedly
received by the workman. Therefore, something definitely has happened on
26.8.2010 and if we turn to the evidence, the management has specifically
asked the workman as to what happened on 26.8.10 and the workman has
replied that he alongwith other workers went to the factory and asked for
minimum wages and at that moment the management called some gunda
elements who pushed them outside the factory and this much had
happened. Therefore, some sort of altercation definitely had taken place on
26.8.2010 which compelled the workman not to come on duty on 27.8.2010
or which compelled the management to issue such letter to the workman. In
further cross examination, the workman denied the suggestion that nothing
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like this happened and this fact had been concocted by him or by Union. He
further deposed that he did not make any police complaint regarding this
incident. It is argued by Ld.ARM that version by the claimant in the
statement of claim and version which is being stated in the evidence are
contradictory as he has not stated that he had been terminated on 26.8.2010
and, therefore, termination has not been proved. The Court does not find
any merit in the contention as fact has been categorically stated in the
statement of claim. If the management gives the suggestion that nothing
happened on this date then there was no necessity at all to serve the notice
upon the workman on 27.8.2010 i.e. next day itself. Therefore, the
management is concealing something with respect to incident dt.26.8.2010
and this is irrespective of the fact whether the management called some
gunda elements or not and whether there was some police complaint
regarding this fact by either of the party or not. There are number of
employees who have been stating such facts with respect to the incident as
happened on 26.8.10 and there is no similar statement of the workman. Had
there been a common version and all the workmen should have been saying
same words, it might lead to draw an inference as they have been tutored.
Minor contradictions do take place from person to person which is a
recognized principles of law of appreciating the evidence. Even in the
proceedings where strict rules of code of civil procedure and Evidence Act
are applicable, minor contradictions are permitted, rather it has been held in
various judgments that the minor contradictions are the proof of their being
truthful where similar version are not believable and it may be the
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concocted versions. Further, the civil liabilities are decided on the
preponderance of probabilities and it is only the State cases where the
prosecution is required to prove the guilt of the accused persons beyond
reasonable doubts and the court must say that even in criminal matters, the
minor contradictions are given due recognition as per law. Therefore, the
fact that nothing happened on 26.8.2010 as have been suggested by the
management can not be believed.
11 Now, coming to the facts again that after 26.8.2010 or after writing
the letters 27.8.2010, 30.8.2010 & 11.9.2010 whether the workman went to
join the duty or not. M.W1 in para no.16 of the affidavit submitted that
letters were sent to the workers and also to the Labour office with a request
that workers may kindly be sent alongwith Labour Inspector for joining
their duties. M.W1 in cross examination denied the suggestion that the
workman came for duty after receiving the letters or the management
refused to take him back on duty and he also denied that even after the
management asked the workman to report for duty before conciliation
officer, the workman again reported the management and the management
refused to take him back on duty. It is an admitted fact that the workmen are
not working with the present management and there is rival contentions of
both the parties. In these circumstances when there is rival contention of
both the parties , court is of the opinion that judgment as relied upon
Ld.ARM to the effect that when the ground of termination has been
knocked out by the management then onus to prove the termination of the
services of the workman and in such case the inquiry is not required to be
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held, is not relevant in the present facts and circumstances as the
management has not been able to knock out the alleged ground of
termination of the services of the workman. If the workman would not have
asserted in the statement of claim that he had gone to the management after
receiving the letters as sent by the management, contention of Ld.ARM
would have been well found as it was held in judgment tiled as Diamond
Toys Co.(P) Ltd.vs Toofani Ram & Anrs. (Supra)
12 But here the claim of the claimant from the very beginning is that
they had gone to the management to join the duty after receiving the letters
written by the management and also when an effort was made by the
conciliation officer but they were not taken back on duty. As far as
contention of the management that workers were asked to join the duty with
Labour Inspector is concerned, court is of the opinion that if the workman
has not come despite such letters then an equal effort could have been made
by the management also to get the Labour Inspector deputed and settle the
matter. The management has given the earned wages to some of the workers
as is being reflected in the WS and it could also have taken such effort in
this matter also. When there is a dispute that the workmen are not joining
despite asking them, then it was incumbent duty of the management to hold
inquiry against such an employee and court in arriving to this decision is
taking support with the judgment titled as Express Newspapers Pvt.Ltd. vs
1.Michael Mark and anr.and 2.G.Sreedharan & ors AIR 1963, Supreme Vishal vs M/s Golyan Metal Pvt.Ltd.
17/24Court 1141 where it was held that:
"where the workers had gone on strike and the management has written a letter to its workers interalia stating that the workers should return to the work by a certain date failing which they will be deemed to have abandoned their services and their names would be removed from the muster rolls. Following the issuance of such notice to the workers, the workers did not return to their work with the management on the date which was so mentioned in the notice and the management ultimately removed their names from muster rolls and in such circumstances , the Hon'ble Supreme Court has held that such removal of the names of the workers from the pay rolls amounts to writing another unilateral contract by the management and the same is nothing less than termination of the services of the workman and ultimately the workers were held to be entitled for compensation".
13 In this case also, the situation appears to be identical and merely by writing a letter and without conducting any inquiry against the workman regarding his absence from duty , in the considered opinion amounts to termination of the services of the workman. Accordingly, it is held that the management has failed to prove that the workman has abandoned his services.
14 Now, coming to the issue of termination. Some of the facts have already been discussed with respect to termination while discussing the facts hereinabove and as far as other aspects are concerned, they would be discussing now.
15 It is categorically stated by the workman that he had been terminated on 26.8.2010. The management although has not taken any objection that the workman has not completed continuous 240 days with the management Vishal vs M/s Golyan Metal Pvt.Ltd.
18/24in the preceding year from the alleged date of his termination in the preliminary objections yet in para no.16 of the WS, the management somehow stated that the workman has not completed continuous 240 days with the management during the preceding year from the alleged date of his termination. Since this is one of the legal issue , it should have been taken as preliminary objection but nevertheless it would be disposed off as the court feels it necessary to dispose off this controversy as well. 16 Before discussing this issue, there is yet another important aspect i.e.whether all the firms have functional integrality as is being contended by the workman or whether they are distinct & separate firm as is being alleged by the management. However, before this fact is appreciated, it is necessary to observe as to what is the constitution of all the firms i.e.as to whether all the firms are one and the same thing and are given different names for the convenience of their business tactics or are such factory/factories infact are separate one. It appears to the court that the management is using the word 'factories' and 'management' as synonymous to each others. Some time it claims that managements M/s Anil Metal Industries, M/s Vinayak Metal Industries and M/s Gohlyan Metal Industries were closed on 31.3.08 and at some other place, it states that the factories at premises no.A104/12, Wazirpur Industrial Area, Delhi52, A104/9, Wazirpur Industrial Area, Delhi52 and A104/4, Wazirpur Industrial Area, Delhi were permanently closed on 21.2.2011. In the WS, it is also stated that the factory of the management M/s Golyan Metal Pvt. Ltd. came into existence on 1.4.08 & Vishal vs M/s Golyan Metal Pvt.Ltd.
19/24at other places, it submits that all the factories are different factories. Even in the evidence, M.W1 deposed that there were 6080 persons working in all the three factories. If the factories are different, M.W1 can not depose about three different firms and if the managements are same then 'factories' can be used a synonym to the management. The management in para no.6 has stated that the management M/s Anil Metal Industries, M/s Vinayak Metal Industries and M/s Gohlyan Metal Industries were closed w.e.f 31.3.08 and the workers employed therein had taken their full and final settlement of account and some of them had taken employment with M/s Golyan Metal Pvt.Ltd.and in para no.2 of the preliminary objections, the management is claiming that all the factories have been closed w.ef 21.2.2011. Court has put specific query from Ld.ARM as to how he has been able to reconcile these facts as if M/s Anil Metal Industries, M/s Vinayak Metal Industries and M/s Gohlyan Metal Industries were closed w.e.f 31.3.08 then what is the factual position with respect to closing these factories on 21.2.2011 and also to explain the fact as to whether these factories were running in between the period from 31.3.08 to 21.2.2011 in the common name of M/s Golyan Metal Pvt.Ltd.or still they were working with the different names as there is no evidence on record with respect to closure of factories by the management on 31.3.08 on the court file. No specific explanation has come on record.
17 Keeping in view all these facts, the contention of the workman appears to be correct that all the three factories are controlled by the management and the service of the workman were being taken by the Vishal vs M/s Golyan Metal Pvt.Ltd.
20/24management as per its convenience and requirement. It also primafacie appears that there were functional integrality in all the managements and, therefore, all the workmen would be deemed to be in service of the management if he had been in service of any of the firm prior to 1.4.08. Court is also of the opinion that until and unless the management issues a transfer letter that from a particular date, a particular worker has been transferred in a particular firm then generally the worker/claimant may not have any access to the internal administrative system of the management to ask as to under whom he is working. It is not even expected from a labour that he would be asking the management prior to joining that with which particular person or firm he is employed with or who would be giving him salary or who is the owner/Director of the management. There is no access of employee to the internal administrative system of the management so as to ask as to whether the management has changed its name or whether it has not changed its name and how the management is administrating its internal affairs. Contention of the management as it was observed while disposing off the issue no.1 have not been proved by the management that if M/s Anil Metal Industries, M/s Vinayak Metal Industries and M/s Gohlyan Metal Industries were closed on 31.3.08 then who was running three different firms and which factories were closed on 21.2.2011 on the three addresses given by the management.
18 Now, coming to the issue with regard to continuously working for 240 days of the workman with the management in the preceding 12 months from the alleged date of his termination. It is argued by Ld.ARM that Vishal vs M/s Golyan Metal Pvt.Ltd.
21/24keeping in view the judgment titled as The Range forest officer vs S.T Hadimani 2002 LLR 339 Supreme Court of India wherein it was held that :
"It is for the claimant/workman to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination and filing of affidavit can not be regarded as sufficient evidence for any court or Tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year". Once the management has stated that the workman has not completed continuous 240 days during the preceding year from the alleged date of his termination then the workman is duty bound to prove the same.
19 In the present case, the management in para no.3 denied that the workman was working with the management since the year 2000 but admitted that the workman joined the management on 1.4.08. That still is of no help while disposing off controversy with respect to completion of continuous 240 days with the management as number of 240 days in the preceding year has only to be calculated from the alleged date of his termination. The alleged date of termination in this matter is 26.8.2010. Management has stated that the workman was working with the management w.e.f 1.4.08 and then it is contended that he started remaining absent from 26.8.10. It is nowhere the pleadings of the management that from 1.4.08, the workman had ever been running absent or was on leave unauthorizedly or was somehow absent from duty for a considerably long Vishal vs M/s Golyan Metal Pvt.Ltd.22/24
period. It is not the case of the management at all. Until and unless the management contends that although the workman was working with the management from 1.4.08 yet he was irregular in his service or he used to remain absent without any intimation then in all probability, he is deemed to be in continuous service and even if he is absent & his leaves have been sanctioned subsequently for the period when the workman was absent then also such absence if explained is counted towards regular service. Therefore, contention raised by the management is well found only to the case when the management would plead that the workman was running absent & then the workman would have to prove that he had completed 240 days of continuous service with the management. If the management itself is admitting that the workman joined the management on 1.4.08 & started remaining absent w.e.f 26.8.10 only, then it amounts to admission that the workman has been working continuously with the management upto 26.8.2010.
20 Now, coming to the termination aspect. The incident of 26.8.10 has already been explained. It is being corroborated with the statement of claim as filed by the claimant and no inquiry has been held by the management after the fact that the workman alleged that he had reached the office after having received the letters and he was not allowed to resume the duty. From all such facts, the court is of the opinion that the workman has been able to prove that his services have been terminated illegally by the management. Issue no.1 & 3 are answered accordingly.
Vishal vs M/s Golyan Metal Pvt.Ltd.23/24
ISSUE NO.4 21 Court while disposing off the issue no. 1 & 3, it has been held that the workman has been terminated illegally on 26.8.2010 and the management has been able to prove that the management has closed its manufacturing activities on 21.2.2011. Once the management has closed its factories , the reinstatement of the workman is not possible and, therefore, compensation would be better option.
22 Workman in his cross examination has deposed that he is doing agriculture work and earns Rs.1000/ to Rs.1500/ per month . He further deposed that he searched for job at some places but did not get the job These facts are sufficient to opine that the workman has not remained unemployed for unlimited period. As far as the amount of compensation is concerned, the court is of the opinion that in such cases the lump sum compensation would meet the ends of justice. The court also find support from the following judgments:
1 Rameshwar Dayal vs Presiding Officer Labour Court no.VI, Delhi & Anr.2007 (3) LLJ 729(DHC) wherein the Hon'ble Delhi High Court came to the conclusion that 'a lump sum amount of Rs.50,000/ as compensation in lieu of reinstatement and back wages towards full and final settlement of all claims of the workman was an appropRaite relief'.
2 In Kishan Lal and Ors Vs Govt.of NCT of Delhi &
ors 2007 VI AD(Delhi) 13, the Hon'ble Delhi High
Court held mainly to the effect that 'in lieu of grant of
relief of reinstatement and full back wages, the
Vishal vs M/s Golyan Metal Pvt.Ltd.
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management was directed to pay to each of the workmen a lump sum compensation of Rs.40,000/ towards full and final settlement of all claims of each of such workmen' 23 Keeping in view the totality of the facts and circumstances, the court is of the opinion that the interest of justice would meet if a lump sum compensation to the extent of Rs.25,000/ is awarded to the workman without referring any opinion on the fact with respect to the allowance received by the workman on closure of the factory. The management is directed to pay the awarded amount from date of award within a period of one month, failing which this amount shall carry a simple interest @ 8% per annum till realization.
A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
ANNOUNCED IN OPEN (S.S.MALHOTRA)
nd
COURT ON 22 MARCH, 2013 PRESIDING OFFICER
LABOUR COURTIX/KKD COURTS:DELHI
Vishal vs M/s Golyan Metal Pvt.Ltd.
25/24
ID no.246/11
22.3.2013
Present: Workman in person with Sh.S K Jha, Ld.ARW.
Vide my separate award, a lump sum compensation to the extent of Rs.25,000/ is awarded to the workman. Accordingly, the management is directed to pay the awarded amount from date of award within a period of one month, failing which this amount shall carry a simple interest @ 8% per annum till realization.
A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
(S.S.MALHOTRA) POLCIX/22.3.2013 Vishal vs M/s Golyan Metal Pvt.Ltd.
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