Delhi District Court
Workman vs . on 20 December, 2011
IN THE COURT OF SH. MAHAVIR SINGHAL: POIT,
KARKARDOOMA COURTS, DELHI
Comp No. 90/05
Workman
Sh. Satyajit Mahapatra s/o Sh. Nidrasan Mahapatra, r/o A 75, Krishan Puri,
Gali No.2, Mandawali, Fazalpur, New Delhi. Working as DSM at Udyan
Marg, CNG Station, New Delhi owned by Indraprastha Gas Ltd., Dr.Gopal
Das Building, 14,15 floor, 29, Barakhamba Road, New Delhi, represented by
Vyapar Tatha Udyog Karamchari Sangh (Regd. )
Vs.
Management
1. M/s Indraprastha Gas Limited through its Managing Director Sh. Anil
Kumar De.
2. Sh. Anil Kumar De (Managing Director)
3. Sh. Devashish Bhrama G.M. (H.R.)
4. Sh. Ashim Batra (GM) Marketing,
5. Sh. Vikas Upadhyay (Marketing Manager)
6. Sh. Vivek Mathur (Supervisor)
at Indraprastha Gas Ltd., Dr.Gopal Das Building, 14,15 floor, 29,
Barakhamba Road, New Delhi, also at Udhyan Marg, CNG Station,
Udyan Marg, DIZ Area, Bole Market, N. Delhi,
7. Govt. of NCT of Delhi through Secretary (Labour) Players Building,
ITO, Delhi.
Date of institution 04.06.2005
Date of reserving award 07.12.2011.
Date of award 20.12.2011
AWARD
1. Workman has filed the present complaint u/s 33-A r/w Section
10(4A) of Industrial Disputes Act for terminating theservices of
workmen/complainant without permission during pendencyof Industrial
Comp No.90/05 Page 1 of 9
Dispute No.99/2003 before this Hon'ble Court.
2. It is stated in the present complaint that I.D. No.99/03 is pending
before this Tribunal for regularisation of workman with management no.1.
It is stated that complainant was employed with management no.1 as DSM
(Driver Way Salesman) since 17.5.2001 on regular basis at a salary of
Rs.3980 pm and that complainant alongwith other workmen has preferred
an industrial dispute no.99/03 for regularization of his service with
management no.1. It is further submitted that another industrial dispute
No66/03 regarding general demand on behalf of complainant alongwith
other workmen is also pending before Labour Court. It is submitted that
workman is working to the satisfaction of management.
3. It is submitted that salary of workman has been reduced
substantially from Rs.3980 to Rs.3029 without any show cause notice or
giving opportunity of being heard. It is submitted that complainant was
dismissed from service by respondent no.5 Sh. Vikas Upadhyay orally
without any show cause notice and was not allowed to work since 25.3.05, against which complainant filed a representation dated 24.5.05 with the management, but the same was not responded. It is submitted that the management has retrenched the complainant illegally without complying with the provisions of Section 33 and 25F of IDA and too during Comp No.90/05 Page 2 of 9 pendency of ID No.99/03 and no approval of this Hon'ble Court has been obtained before removing him. It is, therefore, prayed that action of respondents of retrenching the complainant be held illegal and that management be directed to take back the workman with full back wages at original salary with consequential benefits.
4. In reply filed by the respondent/managements no.1 to 5 to the present complaint, it is claimant was never engaged by management no.1, but was engaged by contractor namely M/s Vivek Enterprises. It is submitted that respondent no.2 to 5 are executives of respondent no.1 and as such claim against respondents no.2 to 4 is baseless. It is submitted that complainant has made respondent no.6 as a party, who is a contractor, under whose supervision and control complainant is still working. It is submitted that Sh. Vivek Mathur is sole proprietor of M/s Vivek Enterprises for providing service. It is submitted that in the present case there is no contravention of Section 33 of the I.D. Act. It is submitted that there is contract agreement between M/s Indraprastha Gas Ltd and M/s Vivek Enterprises. It is submitted that M/s Indraprastha Gas Limited is the principal employer having Registration Certificate under CLRA Act and the contractor namely Vivek Enterprises has the license. All other allegations made in the present complaint have been denied by Comp No.90/05 Page 3 of 9 the respondents/ managements.
5. In reply filed by respondent / management no.6, it is submitted that since, the complainant is no where a party to the dispute ID No.99/03, therefore, the present complaint is not maintainable. It is submitted that the complainant was engaged by respondent no.6 as temporary Drive Way Salesman due to temporary pressure of work and that he was working under direct supervision and control of respondent no.6. Itis submitted that w.e.f. 25.3.05, the complainant abandoned the job of his own without prior permission or information, therefore, the management no.6 has never violated the provisions of I.D. Act. It is submitted that there is a contract between management no.1 and management no.6 and that management no.1 is the principal employer having Registration certificate under the CLRA Act. All the allegation made against management no.5 have been denied.
6. Complainant has filed two rejoinders, one to the reply of respondent no.1 to 5 and another to the reply of respondent no.6, wherein he has reiterated the contentions made in the complaint and have denied all the averments made in the replies of respondents. Comp No.90/05 Page 4 of 9
7. On the basis of pleadings of the parties, following issue was framed by my Ld Predecessor vide order dated 24.03.2006:-
1. Whether the complainant is a concerned workman in I.D. No.99/03? OPC
2. Whether the services of the complainant were terminated by the respondent/ management in violation of Section 33 of I.D. Act.
3. Relief.
8. Workman examined himself as CW1. In his examination-in-
chief, he has reiterated the contents of his complaint. In his cross- examination, he has admitted that he was not issued any appointment letter. It is admitted that Sh. Vivek Mathur respondent no.6 was his supervisor and he was working under his control since 2003. It is denied that he has no employer and employee relationship with M/s IGL. It is admitted that he was not issued removal letter by M/s IGL.
9. Management has examined Sh. Ashim Batra, chief General Manager of management no.1 as MW 1. In his examination-in-chief, he has reiterated the contentions made in the reply. In his cross-examination, he has denied that complainant was employed by management no.1. It is denied that services of complainant were terminated during the pendency Comp No.90/05 Page 5 of 9 I.D. No.99/03.
10. MW 2 Sh. Mohan Singh, LDC from ESIC Kalkaji, N. Delhi has proved on record declaration forms and returns filed by M/s Vivek Enterprises regarding contribution of ESI of complainant as Ex. MW2/1. He has deposed that ESIC does not itself verify the fact of employment of employee with the employer mentioned in the returns.
11. MW 3 Sh. Om Prakash, Sr. SSA Office of Regional Provident Fund Commissioner, has proved on record annual statement of contribution of M/s Vivek Enterprises for different periods as Ex. MW3/1. In his cross-examination, he has deposed that he did not know whether his department verifed the fact of employment of employee with the employer mentioned in the annual statement of contribution because it pertains to the legal department and not the accounts department, where he was posted.
12. No arguments were advanced earlier by either of the parties. However, on an application moved by the management of M/s Indraprastha Gas Limited, arguments on its behalf were heard on 19.12.2011. I have carefully gone through record of the case. My findings on the issues are as under :-
Comp No.90/05 Page 6 of 9
13. Findings on issue No 1 Issue no.1 is Whether the complainant is a concerned workman in I.D. No.99/03? OPC
14. I have perused the list of workmen annexed with statement of claim filed in I.D. No.99/03. In the said list, name of the complainant/workman appears at Serial No.181. Thus, plea of the management that complainant is not a concerned workman in I.D. No.99/03 is unfounded. This issue is, therefore, decided in favour of workman and against the management.
15. Findings on issue no.2 Issue no.2 is Whether the services of the complainant were terminated by the respondent/ management in violation of Section 33 of I.D. Act.
16. MW 1 Sh. Ashim Batra, Chief General Manager of management no.1 has has proved on record Ex. MW1/1, which is agreement executed between management no.1 and M/s Vivek Enterprises. As per this agreement, Operator i.e. M/s Vivek Enterprises shall provide services to management no.1, which is in the business of dispensing CNG to automobiles and supplying Piped Natural Gas to domestic and commercial customers. A per term no.6(g) of the agreement, the Operator can appoint Comp No.90/05 Page 7 of 9 his personnel including Driver Sales Man (DSM) on a fixed term co-
terminus with the agreement period.
17. From the above agreement, it is clear that the personnel for providing service to management no.1 shall be provided by Operator/ Contractor M/s Vivek Enterprises.
18. MW 1 has also proved on record copy Licence issued by Office of Licensing Officer and Asst. Labour Commissioner (C) Delhi to M/s Vivek Enterprises for doing work of CNG Pump Operations (DSM, Security Guards, Technicians Jobs etc) in the establishment of management no.1.
19. From the above discussion and documents Ex. MW 1/1 and Ex. MW1/3, it is clear that there was agreement between management no.1 and Vivek Enterprises that personnel shall be provided by M/s Vivek Enterprises for the services to be rendered at CNG station of management no.1. Thus, it is revealed that power to appoint workers including Driver Sales Man, the designation of workman herein, was with M/s Vivek Enterprises, the contractor. Hence, it is held that complainant/workman is in the employment of respondent no.6, Mr. Vivek Mathur, the contractor and proprietor of M/s Vivek Enterprises and not in the employment of management no.1 M/s Indraprastha Gas Ltd.
Comp No.90/05 Page 8 of 9
20. Section 33 of I.D. Act speaks about change of service condition during the pendency of an industrial dispute. As per case of complainant/ workman, ID. No.99/03 is pending disposal, during which his service conditions were changed. However, it is worth noting that in I.D. No.99/03, said M/s Vivek Enterprises, of which complainant is employee, has not been made party. Therefore, it is clear that no industrial dispute is pending against M/s Vivek Enterprises. Since, no industrial dispute is pending against M/s Vivek Enterprises, the employer of complainant, the question of contravention of provisions of Section 33 of ID Act does not arise. Accordingly, it is held that services of the complainant were not terminated by the respondent/ management in violation of Section 33 of I.D. Act. This issue is decided accordingly.
21. Relief.
In view of my findings on issue no.2, complainant/ workman is not entitled for any relief. Award is passed accordingly.
22. Copy of award be sent to GNCT of Delhi for publication. File be consigned to record room.
Announced in open court
on 20.12.2011 (MAHAVIR SINGHAL)
Presiding Officer, Industrial Tribunal
Karkardooma Courts, Delhi.
Comp No.90/05 Page 9 of 9