Delhi District Court
Between The vs The on 5 May, 2012
1/11
IN THE COURT OF SH.S.S.MALHOTRA, PRESIDING OFFICER,
LABOUR COURT NO. IX, KARKARDOOMA COURTS, DELHI
ID NO. 356/11
Unique Case I.D. No. 02402C0190512011
BETWEEN THE WORKMAN
Shyam Sunder Singh
s/o Sh.Biteshwar Singh
r/o 336 D28, Chander Shekhar Azad Colony,
Wazirpur Industrial Area, Delhi52.
Represented by
Rashtriya Mazdoor Vahini Union
D266, Gali no.3, Radha Kishan Mandir Marg,
Roop Nagar, Delhi42 Workman
AND THE MANAGEMENT OF
Sumit Engineering Corporation,
A131/5 Wazirpur Industrial Area,
Delhi52
Date of Institution : 30.6.2011
Date on which award reserved : 30.4.2012
Date of passing of award : 05.5.2012
AWARD
1 Vide this award, I shall dispose off the claim of the workman as
filed by him directly u/s 104(A) of the Industrial Disputes Act (hereinafter
referred as the 'Act') against the management by alleging that his services
have been terminated illegally and he has prayed that management be
directed to reinstate him with full back wages alongwith other
consequential benefits.
Shyam Sunder Singh Vs M/s Sumit Engineering Corporation
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2 Brief facts as stated by the workman in his statement of claim are that
he had been working with the management since 17.5.2004 as 'Welder
Fitter Cutter' with full dedication and honesty and his last drawn salary was
Rs. 4500/ per month which was even less than the minimum wages. The
workman had never afforded any opportunity of complaint to the
management but despite that he was not being provided with any legal
facility like appointment letter, attendance card, overtime charges, etc. and
the workman was demanding the same from the management time & again
orally and due to this , the management got annoyed and ultimately
withheld his salary for the month of April, 2011 and when the workman
demanded the same, he was beaten by the management due to which the
workman was on medical leave w.e.f 13.5.2011 to 26.5.2011 and thereafter,
he reached the office of the management on 27.5.2011 and he was kept back
on duty where he worked continuously but on 2.6.2011, the management
ultimately terminated his services by falsely alleging that he has been
running absent, that too without paying the earned wages for the month of
April & May, 2011. The workman thereafter gave the reply to the notice of
the management dt.2.6.2011 vide its reply dt.3.6.2011 but despite that the
management did not keep the workman back on duty and thereafter, the
workman filed the complaint before the Labour Department but despite the
efforts of the Labour Inspector, the management neither took the workman
back on duty nor paid the earned wages and as such, the workman is
unemployed till date and he has filed the present claim with a prayer that his
Shyam Sunder Singh Vs M/s Sumit Engineering Corporation
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services have been terminated illegally by the management & it is prayed
that the management be directed to reinstate him 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 workman is a habitual absentee and
never worked with responsibility and punctuality. The workman had
produced his qualifying certificate of boiler welders at the time of his
interview and the management had advised him for joining some other work
as there was no work regarding boiler in its factory and it is submitted that
on the request of the workman only, he was appointed as a 'semiskilled
labour' on 21.4.05 and his initial salary was Rs.3029/p.m and at present he
was drawing his salary of Rs.6734/ p.m as per the rate fixed by the
Government of NCT of Delhi. The workman worked for 178 days in the
year 2005, 210 days in the year 2006, 241 days in the year 2007, 222
days in the year 2008, 229 days in the year 2009, 163 days alongwith 90
days of ESI leave in the year 2010, 71 days in the year 2011 and as such
he has not completed 240 days of continuous service with the management
in the preceding twelve months from the date of his alleged termination and,
therefore, the claim is liable to be dismissed. As far as merits are
concerned, it is submitted that although relationship is admitted but it is
specifically denied that he was working with full dedication or punctuality
and it is stated that he was regular absentee and has stated false facts in the
statement of claim. The statement of claim is without complying the
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provisions of section 25 B of the I.D Act and no compensation can be
granted to the workman unless and until he has completed 240 days of
continuous service with the management and the facts with regard to notice
or filing the complaint before the Labour Department or the facts with
regard to efforts of Labour Inspector are also denied word by word and it is
prayed that the claim of the workman be dismissed.
4 Rejoinder was filed in which the facts of the written statement were
denied and the facts of claim were reiterated and reaffirmed.
5 After the completion of the pleadings, the following issues were
framed on 22.10.2011:
1 Whether the claimant had been working with the management
regularly since 17.5.2004 at the post of 'Welder Fitter' drawing wages @
Rs.4500/per month?
2 Whether the claimant himself absented from his duties w.e.f
20.5.2011?
3 Whether the workman completed 240 days of continuous service with the management during the preceding twelve months from the alleged date of his termination?
4 Whether the services of the workman have been terminated illegally and/or unjustifiably by the management?
5 Relief 6 After framing up of the issues, the parties was directed to lead their respective evidence. Workman has examined himself as WW1 and has closed his evidence. Management has examined Sh.Mukesh Khanna as Shyam Sunder Singh Vs M/s Sumit Engineering Corporation 5/11 MW1 and has closed its evidence.
7 I have heard the arguments and perused the record. My issuewise findings are as under:
ISSUE NO.1
8 Onus to prove this issue was upon the workman and he had to prove that he had been working regularly with the management since 17.5.04 and was drawing wages @ Rs.4500/p.m. The workman in his affidavit has deposed in terms of his statement of claim and in his cross examination , he admitted as correct that he was working with the management as 'fitter, Welder and cutter' and he has passed his ITI from East Bengal Government in the year 197879 as a 'Boiler Welder'. He was not working as a 'Boiler Welder' as the management has no boiler. From the facts, it is clear that the workman was although qualified boiler but he was not doing the work of boiler welder and as such contention made by the workman in the statement of claim that he was not doing the work of boiler welder with the management appears to be correct.
9 As far as working with the management since 17.5.04 is concerned, the workman has stated in the statement of claim that he had been working with the management since 17.5.04 whereas the management in the written statement has not denied this fact. In the evidence also, there is no cross examination of the workman about his initial date of appointment. Although the management in the written statement has stated that the workman visited Shyam Sunder Singh Vs M/s Sumit Engineering Corporation 6/11 the management on 21.4.05 and made a request for appointment by showing a boiler welder certificate and he was kept on duty, but the management has not proved this fact by proving an appointment letter and as such has failed to prove its contention. Since there is no cross examination of the workman on the date of his appointment, it is held that the workman had been working with the management since 17.5.04.
10 As far as last drawn salary of the workman is concerned, he has deposed that he was drawing salary of Rs.4500/p.m whereas the management in the written statement has mentioned that the workman was appointed as a semi skilled labour and his last drawn salary was Rs.6734/ p.m. Therefore, for all practical purposes , it is deemed & held that the last drawn salary of the workman was Rs.6734/p.m. This issue is answered accordingly.
ISSUE NO.2 11 Onus to prove this issue was upon the management and it had to prove that the workman absented himself from the duties intentionally w.e.f 20.5.2011. MW1 has deposed in terms of written statement and he was cross examined at length by the Ld.Authorized Representative for the Workman. In cross examination, MW1 has admitted as correct that the workman was on leave w.e.f 13.5.2011 to 19.5.2011 and he had to join on 20.5.2011. He also admitted as correct that the workman got his leave extended upto 26.5.2011. He was confronted with his attendance register Shyam Sunder Singh Vs M/s Sumit Engineering Corporation 7/11 where the workman was shown absent and it was clarified by the management that the workman was being shown ' absent' as his application for leave was received subsequently whereas the attendance register is being filled up on daily basis and he was subsequently treated as 'on leave' although in the muster roll he was shown as 'absent'. He also admitted as correct that as per muster roll, the workman was present w.e.f 27.5.2011 to 29.5.2011 and he also admitted as correct that in the showcause notice, he has written that the workman left the management on 28.5.2011 after lunch whereas in the muster roll, he has been shown as 'Present'. From all these facts, it is clear that although the management is keeping record of attendance and salary register properly yet there is some ambiguity in maintenance of such record qua the workman and the management has not been able to prove that the workman was absent from duty w.e.f 20.5.2011. Keeping in view also the fact that the management has subsequently acknowledged that the workman has sent leave application which was sanctioned by the management , the Court is of the opinion that once the management has sanctioned the leave, the workman can not be treated to be 'absent'. Therefore, the management has failed to prove that the workman has absented from his duties intentionally w.e.f 20.5.2011. 12 Even otherwise if the workman has remained absent then it was the duty of the management either to call for an inquiry or atleast send him some letter to show as to why he is absent so that proper action be initiated against such workman. There is no document filed on record by the management to show that it had sent any letter thereby asking the workman Shyam Sunder Singh Vs M/s Sumit Engineering Corporation 8/11 to resume the duty. It has come in evidence that the management has sent a notice dt.8.8.2011 Ex.MW 1/5 whereby asking him to resume the duty but this testimony of the management was successfully impeached by the Ld.Authorized Representative for the Workman when it proved that the said notice was not sent to the workman at his correct address rather it was sent at the address 336, D28, Chander Shekhar Azad Colony, Wazirpur Indl.Area, Delhi whereas the address of the workman on ESI card and in the office record of the management is C336, Chander Shekhar Azad Colony, Wazirpur Indl.Area, Delhi. The management also tried to explain that it is the same address which was with the management but again when ESIC card Ex.WW 1/7 was confronted to the management , it became quite clear that the management has sent a notice on wrong address for one reason or the other. Therefore, even taking from this angle if is clear that if the workman was absent , the management has neither taken any step nor has conducted any domestic inquiry against him to call him back to join his duties. Accordingly, this issue is decided against the management by holding that the management has failed to prove that the workman has absented himself from the duty w.e.f 20.5.2011.
ISSUE NO.3 13 Onus to prove this issue was upon the workman and he had to prove that the workman has completed 240 days of continuous service with the management during the preceding twelve months from the alleged date of his termination. This issue was framed as the management had taken Shyam Sunder Singh Vs M/s Sumit Engineering Corporation 9/11 specific objection as to for how much days the workman worked in an year of 2005. However, when MW1 was cross examined by the Ld.Authorized Representative for the workman , testimony of this witness was got successfully impeached again when the management admitted that the workman has worked for 163 days in 2010 i.e.from June, 2010 to December, 2010 and 101 days in 2011. Apart from that the management has also admitted as correct that these days do not include the period of sanctioned leave of the workman and if this period of sanctioned leave would be added, the total working days of the workman in the preceding 12 months would be more than 240 days. Accordingly, this issue is decided in favour of the workman.
ISSUE NO.4 14 Onus to prove this issue was upon the workman and he had to prove that his services have been terminated illegally and unjustifiably by the management. The workman hereinabove has proved that he had been working with the management since 17.5.04 and his last drawn salary is held to be Rs.6734/p.m. and he has completed 240 days of continuous service with the management during the preceding twelve months from the alleged date of his termination and the management has failed to prove that the workman absented from his duties intentionally w.e.f 20.5.2011. Once the management has failed to prove that the workman absented from his duties and the workman at present is not working with the management , it Shyam Sunder Singh Vs M/s Sumit Engineering Corporation 10/11 has to be held that the services of the workman have been terminated illegally and unjustifiably by the management.
RELIEF 15 Keeping in view of findings of this court on issue nos. 1 to 4 the court hereby orders that the workman is entitled to relief. The workman has claimed relief of reinstatement with back wages. Court is of the opinion that keeping in view the fact that the faith of both the parties in each other has been lost, reinstatement would not be in the interest of justice and the compensation would be a better option.
16 Now, coming to the next aspect as to what should be the compensation. The last drawn salary of the workman i.e.Rs.6734/ is admitted by the management. There is no cross examination of the management as to where the workman at present is working and what are his family expenses and from where he is running his daily household affairs. There is no suggestion by the management that the workman is gainfully employed somewhere else and had been getting wages from that employment. Simultaneously, the workman who is an able bodied person and who claims to be a skilled labour can not be believed to have remain umemployed for a period of one year or so. Therefore, keeping in view the totality of the facts and circumstances of the case, this court is of the opinion that instead of granting the compensation on the basis of salary, lump sum compensation of Rs.43,000/ is awarded in favour of the Shyam Sunder Singh Vs M/s Sumit Engineering Corporation 11/11 workman and against the management. An Award is passed accordingly to the above effect. The management is directed to pay the awarded amount to the workman within a period of one month failing which the awarded amount shall carry the interest @ Rs.8% p.a.from the date of award till the payment.
A copy of this Award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Disst/Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
ANNOUNCED IN OPEN (S.S.MALHOTRA)
th
COURT ON 5 MAY , 2012 PRESIDING OFFICER
LABOUR COURTIX/KKD COURTS:DELHI
Shyam Sunder Singh Vs M/s Sumit Engineering Corporation 12/11 ID no.356/11 5.5.2012 Present: Workman in person with Sh.Raj Kumar, Ld.ARW.
Sh.S K Gupta, Ld.ARM.
An award is passed today separately to the effect that workman is ordered to be given a lump sum compensation of Rs.43,000/ in favour of the workman and against the management. The management is directed to pay the awarded amount to the workman within a period of one month failing which the awarded amount shall carry the interest @ Rs.8% p.a.from the date of award till the payment.
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 R/R as per rules.
(S.S.MALHOTRA) POLCIX/5.5.2012 Shyam Sunder Singh Vs M/s Sumit Engineering Corporation