Delhi District Court
Sanjay Thapar vs Total Shipping India Pvt on 14 August, 2024
IN THE COURT OF
PRESIDING OFFICER LABOUR COURT-01:
ROUSE AVENUE DISTRICT COURT: NEW DELHI
Presided Over by: Ms. Pooja Aggarwal, DHJS
LC No. 2451/2016 (Old No. 24/2010)
CNR No. DL-CT13-001175-2010
In the matter of:
Sanjay Thapar
S/o Late Sh. Raghbir Dass Thapar
R/o Flat No. 591, Sector-19, Pocket-3,
Dwarka, New Delhi-110075.
Through
Delhi Mazdoor Sangh (Regd.)
A-217, Karampura, New Delhi-110015.
.....Claimant/workman
Details of Authorized Representative for claimant/Workman
Name: Sh. Siddhartha Shukla from DLSA
Mobile No. : 9013495751
VERSUS
1. Total Shipping India Pvt. Ltd.,
Corporate Office: Viraj Impex House
47, P.D. Mello Road, Mumbai-400 009.
2. Total Shipping India Pvt. Ltd.,
39, Arakarshan Road,
Ram Nagar, Paharganj, New Delhi.
.....Managements
Details of Authorized Representative for the managements:
Name: Sh. S.N. Shukla
Mobile No.: 8588853448
Email ID of management: Not provided.
Date of Institution : 26.02.2010
Date of Final Arguments : 09.05.2024 & 18.07.2024
Date of Award : 14.08.2024
LC No. 2451/2016 (Old No. 24/2010) Digitally signed
by POOJA
Sanjay Thapar Vs. Total Shipping India Pvt. Ltd. & Anr. POOJA AGGARWAL
Page No. 1 of 21
AGGARWAL Date:
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AWARD
1. The present claim has been filed by the claimant/ workman
as a Direct Industrial Dispute seeking directions to the
management for releasing his earned wages from March
2009 to May 2009 i.e. Rs. 95,238/- and also seeking re-
instatement with full back wages due to his illegal
termination by the Management by obtaining resignation
using force and humiliation, without complying with
section 25F and other applicable provisions of the
Industrial Disputes Act.
Facts as per the statement of claim
2. Briefly stated, it has been asserted that the claimant / workman was appointed by the management w.e.f. 22.05.2008 for development of business of the company performing duties of clerical nature including distribution of publicity material, filling up of forms, making entries in various registers and to keep accountability of records but for establishing status in general public, he was given the designation of Business Development Manager enabling him to attract more new business associates/clientage to his superior for the business of the company.
3. It has been further asserted that the salary of the claimant/workman was Rs. 31,745/- per month and he performed his duties to the satisfaction of the management. It has also been asserted that after joining, the claimant/workman came to know that he was to work for the management as well as its associate concern M/s LC No. 2451/2016 (Old No. 24/2010) Digitally signed by POOJA Sanjay Thapar Vs. Total Shipping India Pvt. Ltd. & Anr. POOJA AGGARWAL Page No. 2 of 21 AGGARWAL Date:
2024.08.14 16:19:26 +0530 Interfreight Forwarders and he performed his job even related to the other concerns of the management to the satisfaction of his superiors.
4. It has also been asserted that after December 2008 till February 2009, the Management retrenched most of its employees except two including the claimant/workman to look after all the activities of the management including M/s Total Shipping India Pvt. Ltd. and M/s Interfreight Forwarders due to which the workload on the claimant/ workman increased exorbitantly, but he was offered re- structured decreased salary of Rs. 24,746/- as against Rs. 31,746/- per month. It has been further asserted that the reduced salary and the increased workload was arbitrary on the part of the management and also an unfair labour practice.
5. It has been further asserted that due to the humiliation and harassment by the management, no other remedy was left with the claimant/workman except to surrender and the management compelled him to submit his resignation showing two month's notice period as per the terms of his appointment letter.
6. It has also been asserted that despite repeated requests, the management did not pay the salary of the claimant/ workman for the period of March to May 2009 even though at the time of obtaining his resignation dated 31.03.2009, they had assured him that his salary would be LC No. 2451/2016 (Old No. 24/2010) Digitally signed by Sanjay Thapar Vs. Total Shipping India Pvt. Ltd. & Anr. POOJA Page No. 3 of 21 POOJA AGGARWAL AGGARWAL Date:
2024.08.14 16:19:37 +0530 released. It has been further asserted that the claimant/ workman sent notices to the management and that the conduct of the management was arbitrary and violative of Industrial Disputes Act particularly Section 25F thereof.
7. It has been further asserted that the management had obtained the resignation of the claimant/workman by use of force and without payment of his salary from March to May 2009 and that the management had not paid any notice pay, requisite compensation and even the earned wages/ salary. Hence the present claim.
Facts as per the written statement
8. In the written statement, the management raised preliminary objections as to the claimant/ workman having suppressed and concealed material facts as to him having himself tendered his resignation from the post of Manager w.e.f. 31.03.2009 with one month's notice and without complying with the terms and conditions of his appointment letter dated 26.05.2008 as per which he was to give two month's notice when intending to resign.
9. It has been further asserted that the contents of an earlier legal notice dated 20.05.2009 issued on behalf of the claimant/workman, were contrary to the stand taken in the statement of claim, and that the claimant/workman had failed to disclose that he had already approached Delhi Legal Services Authority where the management had given its reply to the complaint No. 941/2009/641 dated LC No. 2451/2016 (Old No. 24/2010) Digitally signed by Sanjay Thapar Vs. Total Shipping India Pvt. Ltd. & Anr. POOJA POOJA AGGARWAL Page No. 4 of 21 AGGARWAL Date:
2024.08.14 16:19:49 +0530 30.07.2009, Karkardooma Courts, Delhi.
10. It has been further asserted that the claimant/workman was working in the capacity of Business Development Manager w.e.f. 22.05.2008 but his performance was not satisfactory and did not improve despite verbal counseling and repeated verbal warnings. It has been further asserted that the claimant/workman himself approached the management without any pressure to continue his services on reduced salary, which request was accepted and the salary was re-structured w.e.f. 01.03.2009 which was also communicated to and accepted by the claimant/workman on 09.03.2009. It has also been asserted that in the legal notice dated 20.05.2009, the claimant/workman had only demanded release of amount whereas in the notice dated 28.01.2010, he claimed reinstatement for the first time.
11. It has been further asserted that the resignation letter dated 26.03.2009 sent by the claimant/workman was violative of the terms of appointment and that the resignation was abrupt without handing over proper charges of his responsibility or settling the bills pending with the clients.
It has also been asserted that an amount of Rs. 81,214/- was to be recovered from M/s Allied Enterprises and also from the Jet lite in coordination with Inter Freight Team in Mumbai by the claimant/workman. It has also been asserted that despite repeated requests, M/s Allied Enterprises refused to honour the commitments and make the payment to the company on the pretext that the LC No. 2451/2016 (Old No. 24/2010) Digitally signed by Sanjay Thapar Vs. Total Shipping India Pvt. Ltd. & Anr. POOJA AGGARWAL Page No. 5 of 21 POOJA AGGARWAL Date:
2024.08.14 16:19:59 +0530 payment shall be made to the claimant/workman only.
12. It has also been asserted that the claimant does not fall within the ambit of definition of workman.
13. On merits, the management denied all the averments made in the statement of claim and asserted that as a Business Development Manager, the claimant/workman was supposed to act in a supervisory and managerial capacity and there were various subordinates working under him under his supervision. It has been further asserted that as a Development Business Manager, the claimant/ workman was assigned with the task of a Team Leader and as a responsible managerial person, he was supposed to carry out various responsibilities and duties for generation of business. All the remaining averments have been denied on merits.
Facts as per rejoinder
14. In his rejoinder, the claimant/workman reiterated that it was the management who had forced him to submit his resignation due to which the question of him complying with the terms and conditions of the appointment letter did not arise. It has also been asserted that the difference of stands taken in the notices was a lapse on the part of the advocate engaged by the claimant/workman. It has been further asserted that the claimant/workman was assigned the duty of arranging dispatch of goods and not development of business. It has also been asserted that the Digitally LC No. 2451/2016 (Old No. 24/2010) signed by POOJA Sanjay Thapar Vs. Total Shipping India Pvt. Ltd. & Anr. POOJA AGGARWAL Page No. 6 of 21 AGGARWAL Date:
2024.08.14 16:20:06 +0530 act of reducing of his salary by the management showed that it was the management which had forced the claimant/ workman to tender his resignation. It has also been asserted that the claimant/workman was entrusted with single man assignment and he had no supervision of any staff or team. It has also been asserted that the management was taking contrary stands by asserting that the work of the claimant was not satisfactory despite repeated opportunities but also asserting on the other hand that he had tendered his resignation in violation of the terms of the appointment letter. All other averments made in the Written Statement have been denied.
Issues
15. The following issues were framed by the Ld. Predecessor on 12.08.2010:
"a) Whether the workman proves that he was compelled to resign from the job and thus amounting to illegal and unjustified termination from service?
b) Whether the management proves that the workman voluntarily resigned on his own on 31.03.2009?
c) What relief."
Workman Evidence
16. To prove his case, the claimant/workman tendered his evidence by way of affidavit i.e. Ex. WW1/A and also relied upon the following documents - Sl.No. Description of Document Exhibit /Mark
1. Appointment Letter dated Ex.WW1/1 26.05.2008 LC No. 2451/2016 (Old No. 24/2010) Digitally signed Sanjay Thapar Vs. Total Shipping India Pvt. Ltd. & Anr. by POOJA AGGARWAL Page No. 7 of 21 POOJA AGGARWAL Date:
2024.08.14 16:20:16 +0530
2. Resignation letter dated Mark-A 31.03.2009
3. Letter dated 05.03.2009 of Mark-B management reducing salary of the claimant/workman
4. Legal Notice dated 2005.2009 Mark-C along with the postal receipts
5. Legal Notice dated 28.01.2010 Ex. WW1/2 along with the postal receipt
17. WW1 claimant/workman was partly cross-examined whereafter upon an application of the management, vide order dated 19.03.2013, the following additional issue was framed by the Ld. Predecessor :-
"Whether the claimant falls within the ambit of definition of "workman" and therefore, this Court has the jurisdiction to decide the present dispute?OPW"
18. Thereafter, the claimant/workman tendered his additional evidence by affidavit i.e. Ex. WW1/B and relied upon the documents already exhibited in his earlier affidavit i.e. Ex.WW1/A.
19. He was duly cross-examined on behalf of the management wherein inter-alia he denied having submitted the document Mark-CX-A at the time of his interview along with his resume. WW1 claimant/workman also produced the letter dated 10.07.2007 i.e. Ex.WW1/CX-1 issued by the Management to him in respect of changing of his post as Manager Operation for Delhi and the document i.e. Ex. WW1/CX-2 (copy of the document Ex.WW1/2) including Digitally LC No. 2451/2016 (Old No. 24/2010) signed by POOJA Sanjay Thapar Vs. Total Shipping India Pvt. Ltd. & Anr. POOJA AGGARWAL AGGARWAL Date: Page No. 8 of 21 2024.08.14 16:20:26 +0530 the third page was also put to him during his cross- examination.
Management Evidence
20. The management examined only one witness i.e. MW-1 Mr. Kapil Dev Singh, who tendered his evidence by way of affidavit i.e. Ex.MW-1/X and relied upon the following documents i.e. Sl.No. Description of Document Exhibit/Mark
1. Attested copy of board of Ex.MW1/A resolution 2 Office copy of the reply dated Ex.MW1/B 10.02.2010 to the legal notice dated 20.05.2009 alongwith postal receipts
3. Letter dated 30.07.2009 of Mark-MW1/A Secretary DCLSA addressed to Ms. Twinkle Sinha (HR) Total Shipping (India) Pvt. Ltd.
4. Letter dated 25.08.2009 of Ms. Mark-MW1/B Sarabjit Singh Grover, Authorized Signatory for Total Shipping India Pvt. Ltd.
addressed to Secretary, District Legal Service Authority, Karkardooma Courts, Delhi.
21. MW-1 Mr. Kapil Dev Singh was duly cross-examined on behalf of the claimant/workman wherein inter-alia he produced the copy of his Aadhar card i.e. Ex.MW1/M1 and one authorization letter i.e. Mark-MW1/M2 was put to him. He also admitted during his cross-examination that Ex.WW1/CX-1 was issued by the management and testified that the records pertaining to December 2008 till LC No. 2451/2016 (Old No. 24/2010) Sanjay Thapar Vs. Total Shipping India Pvt. Ltd. & Anr. Digitally signed by POOJA Page No. 9 of 21 POOJA AGGARWAL AGGARWAL Date:
2024.08.14 16:20:37 +0530 February 2009 had been destroyed as per the rules of the management.
22. Final arguments were then advanced by Mr. Siddhartha Shukla, Authorized Representative for the claimant/ workman from DLSA and by Mr. S.N. Shukla, Authorized Representative for the Management.
23. The AR for the claimant/workman filed the written arguments and also relied upon the following judgments :-
i. Vice Chancellor, Sh. Padmavathi Mahila Viswavidyalayam vs. Prof. V.N. Das decided by the Hon'ble High Court of Andhra Pradesh at Hyderabad in WA no. 1933 of 1999;
ii. Seetharamiah (Ch.) vs. M/s Andhra Pradesh Paper Mills Ltd., decided by the Hon'ble High Court of Andhra Pradesh at Hyderabad in WA no. 16860 of 1998;
iii. Shubhangi Sopanrao Bhosle vs. A.D. Deshpande, decided by the Hon'ble High Court of Bombay in Writ Petition no. 2464 of 1990;
iv. Prabhu Verma vs. D.P. Industries, decided by the Hon'ble High Court of Delhi in W.P. (C) 5336/2011; v. Sharad Kumar vs. Govt. of NCT of Delhi & Ors. decided by the Hon'ble Apex Court in Civil Appeal no. 2622/2002;
vi. The Management of M/s Logitronics (P) Ltd. vs. Ramesh Kumar Sood & Ors. decided by the Hon'ble High Court of Delhi in W.P. (C) 7207/2001; vii. Muralidharan K. vs. The Management of Circle Freight Intl. (India) P. Ltd. decided by the Hon'ble High Court of Delhi in W.P. (C) 7023/2003; viii. T. Boby Francis vs. Lucy Varghese decided by the Hon'ble High Court of Kerela at Ernakulam in W.P. (C) 30311/2011 (L);
LC No. 2451/2016 (Old No. 24/2010) Digitally signed by Sanjay Thapar Vs. Total Shipping India Pvt. Ltd. & Anr. POOJA Page No. 10 of 21 POOJA AGGARWAL AGGARWAL Date:
2024.08.14 16:20:48 +0530 ix. Ananda Bazar Patrika (P) Ltd. vs. Workman decided by the Hon'ble Apex Court in Civil Appeal no. 704/1966.
24. The management also filed its written arguments and relied upon the judgment of the Hon'ble Bombay High Court in Abbott India Limited vs. Dipak, W.P. no. 2101 of 2023.
Issue-Wise Findings
25. The arguments as advanced have been duly considered along with the evidence on record and after careful consideration of the same, issue-wise findings are as under:
Additional Issue: Whether the claimant falls within the ambit of definition of "workman" and therefore, this Court has the jurisdiction to decide the present dispute? OPW"
26. This issue is being taken up prior to the other issues as the same pertains to the jurisdiction of this Court.
27. The onus to prove this issue was on the claimant/workman and hence it was for him to prove that he was within the ambit of definition of 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act.
28. At the outset, it is noted that the appointment letter i.e. Ex WW1/1 does not assist in determining the nature of work being performed by the claimant/workman as it merely narrates the designation of the claimant/ workman without anything further to elucidate the nature of the work to be LC No. 2451/2016 (Old No. 24/2010) Digitally signed by POOJA Sanjay Thapar Vs. Total Shipping India Pvt. Ltd. & Anr. POOJA AGGARWAL Date:
Page No. 11 of 21AGGARWAL 2024.08.14 16:20:58 +0530 performed by him.
29. In his statement of claim as well as his evidence affidavit i.e. WW1/A, the claimant/workman has stated/testified that he was appointed by the management for development of business of the company, entrusting him duties of clerical nature such as distribution of publicity material, filling up of their business forms, making entries in various registers, establishing status of the company in public at large and that he was dignified and decorated with the designation of Business Development Manager in order to enable him to attract more and more new business associates/ clientage to his superiors for business of the company of the management.
30. In his additional evidence affidavit i.e. Ex WW1/B, the claimant/ workman has elaborated the nature of his work testifying that the management had appointed him as a Business Development Manager just to give him a fancy tag, but they entrusted him with duties which were purely clerical and manual in nature, such as filling up their business forms, making entries in various registers and completing various registers of the management, distribution of public material and issue of delivery order to the consignee/customer, preparation of house air way bills for shipper/customer and handling overseas communication to alert for shipment status. He has also testified therein that he was handling and maintaining the accounts of the company and petty cash of the company LC No. 2451/2016 (Old No. 24/2010) Digitally signed by Sanjay Thapar Vs. Total Shipping India Pvt. Ltd. & Anr. POOJA Page No. 12 of 21 POOJA AGGARWAL AGGARWAL Date:
2024.08.14 16:21:11 +0530 and that there was no staff working under him.
31. For reasons best known to the management, during the entire cross-examination of the claimant/ workman, they did not cross-examine him as to his nature of his work, instead focusing simply on his designation. The same is also evident from the fact that though a suggestion was put to the claimant/ workman during his cross-examination, as to him working as a Manager which was promptly denied by him, still in the entire remaining cross-examination of the WW1 as conducted on behalf of the management, there is nothing controverting the testimony of the claimant/ workman as to his nature of work.
32. It is a settled proposition of law that the designation of a person is not the determinative factor to decide whether or not a person would be a workman within the meaning of the Industrial Disputes Act and if an employee has multifarious duties, the dominant purpose of the employment is to be considered. Strength for this interpretation is drawn from the judgment of Arkal Govind Raj Rao v. Ciba Geigy of India Ltd., (1985) 3 SCC 371 (also cited in G.K. Jha v. Presiding Officers, 2013 SCC OnLine Del 1767) wherein the Supreme Court observed:
"Where an employee has multifarious duties and a question is raised whether he is a workman or someone other than a workman the Court must find out what are the primary and basic duties of the person concerned and if he is incidentally asked to do some other work, may not necessarily be in tune with the basic duties these additional duties cannot change the character and status of the person concerned. In other words, the dominant purpose of employment must be first taken into consideration and the LC No. 2451/2016 (Old No. 24/2010) Digitally Sanjay Thapar Vs. Total Shipping India Pvt. Ltd. & Anr. signed by POOJA Page No. 13 of 21 POOJA AGGARWAL AGGARWAL Date:
2024.08.14 16:21:22 +0530 gloss of some additional duties must be rejected while determining the status and character of the person."
(Emphasis supplied)
33. Thus, in the instant case, the testimony of the claimant/ workman as to him having been appointed for development of business but having been given purely clerical and manual work (as opposed to business development work) i.e. in respect of filling up forms etc. has remained uncontroverted and now, it was for the management to prove that the claimant/workman was working with them in managerial capacity.
34. However, again, for reasons best known to the management, they did not lead any positive evidence to prove the nature of duties entrusted to the claimant/ workman. In the evidence by way of affidavit of MW1 Sh Kapil Dev Singh, i.e. Ex MW1/A, the description of duties of the claimant/workman as enumerated in the written statement were not stated on oath and despite having asserted in their written statement that as a Business Development Manager, the claimant/ workman was supposed to act in a managerial and supervisory capacity and as to various subordinates working under him and also having asserted that as a Business Development Manager, the claimant/workman was assigned the task of Team Leader, and a responsible managerial person he was supposed to carry out various responsibilities and duties for generation of business, the management did not put forth even a single suggestion to the claimant/ workman in LC No. 2451/2016 (Old No. 24/2010) Digitally Sanjay Thapar Vs. Total Shipping India Pvt. Ltd. & Anr. signed by Page No. 14 of 21 POOJA POOJA AGGARWAL AGGARWAL Date:
2024.08.14 16:21:31 +0530 respect of the same in the absence of which no admission of claimant/workman was elicited from him by the management in respect of the discharge of any such duties enumerated by the management in its written statement.
35. It is also pertinent to note here that even though in his cross-examination, MW1 Kapil has testified that the work assigned to the claimant/ workman was to visit the client of the management company and to raise the business from them and that he was given the independent work of development of business, however, the same is in the nature of self serving oral testimony and no documents in support thereof have been brought on record by the management.
36. It is pertinent to note that MW1 Sh Kapil has admitted that the record of the claimant/ workman were maintained by the management including the nature of work being performed by the claimant/ workman, but had not been filed by the management. The fact that the MW1 has testified that he was deposing on the basis of the record maintained by the HR section of the company and that he had no personal knowledge of the case, still no records pertaining to the employment of the claimant/ workman were produced by the management/ MW1 warrants an adverse inference to be drawn against the management.
37. It cannot be lost sight of that during his cross-examination, despite MW1 Kapil initially having denied that no staff LC No. 2451/2016 (Old No. 24/2010) Digitally Sanjay Thapar Vs. Total Shipping India Pvt. Ltd. & Anr. signed by Page No. 15 of 21 POOJA POOJA AGGARWAL AGGARWAL Date:
2024.08.14 16:21:41 +0530 was working under the claimant/workman and having testified that the designation of the person working under the claimant/workman was marketing executive and that he could confirm the same from the records maintained by the management, no such records were produced by the management. As already noted above, the MW1 has testified that he was testifying on the basis of records and had no personal knowledge of the case and hence, in the absence of any records having been produced to show that any marketing executive was working under the claimant/ workman, the sole oral self serving testimony of MW1 is not sufficient to prove the managerial nature of work of the claimant/ workman.
38.Thus in view of the aforesaid discussion, it is held that the claimant/workman has discharged the onus cast upon him whereafter the management has failed to discharge the onus so shifted upon it and thus it is held that the claimant falls within the ambit of definition of "workman" and consequently, it is also held that this Court has jurisdiction to decide the present dispute. The additional issue is accordingly decided in favour of the claimant and against the management.
Issue a) Whether the workman proves that he was compelled to resign from the job and thus amounting to illegal and unjustified termination from service? and Issue b) Whether the management proves that the workman voluntarily resigned on his own on 31.03.2009?
LC No. 2451/2016 (Old No. 24/2010) Digitally
Sanjay Thapar Vs. Total Shipping India Pvt. Ltd. & Anr. signed by
POOJA
Page No. 16 of 21
POOJA AGGARWAL
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39. Both these issues are being taken up together for the sake of convenience as they involve interconnected facts. The onus to prove the issue a) was on the claimant/workman whereas the onus to prove the issue b) was on the management since the onus to prove a fact lies on the person who asserts the same.
40. In the present case, as WW1, the claimant/workman has testified in Ex WW1/A and Ex WW1/B to the effect that the management was overloading him with work and started harassing and humiliating him thereby creating adverse situation and forcibly obtained his resignation i.e. Mark A.
41. As far as the stand of the claimant/workman as to him having been compelled to resign is concerned, it is noted that though in Ex.WW1/A and Ex.WW1/B, the claimant/ workman has testified that he was being overworked, humiliated and harassed, adverse circumstances were being created and his resignation was forcible obtained, the manner of force, humiliation, harassment has not been elucidated. The claimant/ workman has also failed to prove that the workload upon him had increased in February 2009. Rather, he has himself relied upon the letter for restructuring of salary i.e. Mark B which states that the decreased salary was on account of reduction of work and slowdown in business activities.
42. Further, the claimant/workman could not withstand the LC No. 2451/2016 (Old No. 24/2010) Digitally Sanjay Thapar Vs. Total Shipping India Pvt. Ltd. & Anr. signed by Page No. 17 of 21 POOJA POOJA AGGARWAL AGGARWAL Date:
2024.08.14 16:22:07 +0530 rigours of cross-examination as after initially denying the very factum of having given the resignation letter dated 31.03.2009, he went on to identify his signatures thereon.
Further he also went on to volunteer that the company had taken his signatures forcibly but also admitted that he had not lodged any written complaint with any higher authority of the company or any other authority with respect of taking of forcible resignation from him.
43. The absence of any written complaint is significant in this case, since even during his own examination in chief as recorded on 01.11.2010, the claimant/ workman abandoned his stand of his resignation having been obtained forcibly and rather took the stand that the signatures of the claimant/workman were obtained on blank papers and even during the cross-examination of MW1, the claimant/workman reiterated his stand of his signatures having been obtained on blank papers which was never his case.
44. Thus, except self serving oral testimony of the claimant/ workman, there is no other evidence on record to prove that the management had compelled the claimant/workman to give his resignation. On the other hand, the management has been able to elicit an admission from the claimant/workman that the signatures on Mark A are of the claimant/ workman and there is no complaint in respect of the same having been obtained forcibly.
Digitally LC No. 2451/2016 (Old No. 24/2010) signed by POOJA Sanjay Thapar Vs. Total Shipping India Pvt. Ltd. & Anr. POOJA AGGARWAL Page No. 18 of 21 AGGARWAL Date:
2024.08.14 16:22:16 +0530
45. In these circumstances, on a scale of preponderance of probabilities, it is held that the management has discharged its burden and has proved that the claimant/workman voluntarily resigned on his own on 31.03.2009 whereas, the claimant/ workman has failed to prove that he was compelled to resign from the job, thus amounting to illegal and unjustified termination from service.
Arguments of the claimant/workman
46. It has been argued on behalf of the claimant/workman that the pleadings/ written statement of the management having been signed by the Surat Goods Transport Co. and in the absence of any authorization or board resolution in favour of the said company or AR, the defence of the management was liable to be struck off. However, this argument as raised is devoid of merits, having been raised belatedly for the first time during the course of final arguments despite the written statement having been filed in the year 2010 and even during the cross-examination of MW1, he has admitted that the management was a subsidiary of Total Group which also included inter-alia, Surat Goods Transport Co. Be that as it may, the claimant/workman himself elicited from MW1 during his cross-examination that the written statement was signed by Mr. Sarabjeet who was an employee of the management company and thus there is also implied ratification thereof by the management and no benefit accrues to the claimant/ workman on this account.
LC No. 2451/2016 (Old No. 24/2010)
Sanjay Thapar Vs. Total Shipping India Pvt. Ltd. & Anr. Digitally Page No. 19 of 21
signed by
POOJA
POOJA AGGARWAL
AGGARWAL Date:
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47. Another argument has been raised on behalf of the claimant/ workman to the effect that the management had taken contrary stands in Ex MW1/B as well as written statement as to the claimant/workman having sent his resignation on 26.03.2009 vis a vis the stand taken in their evidence affidavit as to the same having been given on 31.03.2009 which proved that the same was not voluntary. However, the argument as raised is devoid of merits in as much as even in the issues framed on 12.08.2010, on the basis of the pleadings itself, the issue had been framed as to the voluntary resignation to having been made on 31.03.2009 and not 26.03.2009 nor the MW1 was cross- examined in respect of the same which implies that the claimant/ workman did not dispute the date of resignation to be 31.03.2009 as asserted in the Ex MW1/A and also asserted by him in his own pleadings as well as the evidence affidavit i.e. as to his resignation being on 31.03.2009 and not 26.03.2009. Hence, no benefit accrues to the claimant/workman on this account.
Relief.
48. In view of the discussion and findings on issues a) and b) as well as the additional issue, it is held that the claimant/ workman has failed to prove illegal and unjustified termination from service by the management. Hence, he is not entitled to any relief. The claim filed by the claimant/ workman is thus dismissed.
49. Copy of Award be uploaded on the website of RADC and LC No. 2451/2016 (Old No. 24/2010) Digitally signed Sanjay Thapar Vs. Total Shipping India Pvt. Ltd. & Anr. POOJA by POOJA AGGARWAL Page No. 20 of 21 AGGARWAL Date:
2024.08.14 16:22:33 +0530 another copy be sent to the concerned department through proper channels as per rules.
50. File be consigned to the Record Room after necessary compliance.
Announced in the Open Court Digitally signed by POOJA today on 14th August 2024 AGGARWAL POOJA AGGARWAL Date:
2024.08.14 16:22:42 +0530 (POOJA AGGARWAL) Presiding Officer Labour Court-01 Rouse Avenue District Courts New Delhi (sa) LC No. 2451/2016 (Old No. 24/2010) Sanjay Thapar Vs. Total Shipping India Pvt. Ltd. & Anr. Page No. 21 of 21