Delhi District Court
The vs The on 10 October, 2008
COURT OF MS. SUJATA KOHLI
PRESIDING OFFICER LABOUR COURT II,
ROOM NO. 48, KARKARDOOMA COURTS, DELHI
I.D. No. : 384/03
Date of Institution of the case : 11/03/2003
Date on which Judgment was reserved : 22/09/2008
Date on which Judgment was pronounced : 10/10/2008
B E T W E E N
The Workman, Sh. Rakesh Saxena S/o Late Anil Saxena, C/o Bhartiya
Kranti General Mazdoor Sabha, T248, Mangolpuri, Delhi83.
A N D
The Management, M/s China Bhai Rakhi & Holi Bhandar, 342, PhaseI,
Shahzada Bagh, Inderlok, Delhi35.
A W A R D
1. Reference was sent by Sh. R.K. Verma, Secretary Labour, Government of
NCT, Delhi on 11/03/08 vide reference No. F.24(3669)/2002Lab./2794852
pertaining to an Industrial Dispute between the management of M/s China
Bhai Rakhi & Holi Bhandar and its workman Sh. Rakesh Saxena, in the
following terms of reference:
"Whether the services of Sh. Rakesh Saxena
S/o late Anil Saxena C/o Bhartiya Kranti
General Mazdoor Sabha, T248, Mangolpuri,
Delhi83 have been terminated illegally and/or
unjustifiably by the management and if so, to
what sum of money as monetary relief along
with consequential benefit in terms of existing
laws/Government notification and to what
other relief is he entitled and what directions
are necessary in this respect?".
2. Pursuant to the reference, claim was filed by the workman stating therein
that he had been working with the management as a Machineman since
04/01/01 at a monthly salary of Rs. 2592/ which was his last drawn salary.
He claims to have been working with honesty and dedication, never giving
any cause of complaint to the management.
3. He alleges that management was not providing the legal rights and
facilities under the labour law like issuance of appointment letter, attendance
card, earned leave, casual leave, ESI etc. for which workman had been
raising demand from time to time.
4. As per the workman, on 06/10/01, at about 11.55 pm (night) he met with
an accident with his left hand being crushed in the machine resulting in
amputation of all his fingers. He further states that he was got treated in
private hospital and on 08/10/01 he was got admitted in ESI Hospital.
5. Workman further alleges that while in an unconscious state, management
obtained his signatures on ESI card and his date of appointment was shown
thereon as 20/08/01 which he discovered later on.
6. After availing medical leave from 08/10/01 till 18/03/02 when workman
came to join duty along with medical certificate and fitness certificate on
19/03/02, he requested the management to correct the date of his joining on
the ESI card as 04/01/01 and also requested for joining duty. Management
kept the medical and fitness certificate with them but refused the duty to
workman.
7. On 17/04/02, workman sent a demand notice vide Registered AD Post
demand reinstatement, but same evoked no response from the management.
8. Conciliation proceedings were also initiated in the labour department
through the union on 23/04/02 but management failed to appear and
participate in the proceedings on any of the dates, inspite of being served
with the notice. Ultimately, dispute had to be referred to court for
adjudication.
9. Workman claims to be unemployed ever since the date of termination of
his service, inspite of his best efforts to obtain an alternative job. He claims
to have remained dependent on his mother and other family members for his
daytoday expenses.
10. Since management never issued any notice or paid notice pay nor
retrenchment compensation neither did management issue any show cause
notice or charge sheet or held any enquiry, the termination of service of the
workman is claimed to be illegal being violative of provisions of I.D. Act,
besides being against principles of natural justice.
11. Workman claims to be entitled to reinstatement with continuity of service
as well as full back wages and all other consequential benefits. It has been
prayed accordingly.
12. Management, in their reply, has denied there being any employer
employee relationship with the claimant. It has been stated in the
preliminary objections; para 2 further that there is/was no business
establishment of the alleged management at 342, PhaseI, Shahzada Bagh,
Inderlok, Delhi as alleged and that alleged management is not the owner of
the said premises nor had been a tenant there. In other words, the respondent
have never been running the said business at any point of time.
13. Since the very relationship of employeremployee stands denied, as a consequence by itself, all other allegations on merits also stand denied specifically. The entire version of the workman has been stated to be a cooked up story and as per the respondent neither they were the management nor the claimant was workman with them at any point of time.
14. However, management has elaborated further that any correspondence made by the claimant or notices sent by the conciliation officer at the address of 342, Shehzada Bagh, PhaseI, Delhi, is the result of concealment and wrong information furnished by the claimant and that the reference no. F 624(3669)2002 Lab. 2794952 dated 11/03/03 made against the alleged management/respondent is bad in law.
15. It has further been stated that it was the brother of the management i.e Mr. Mohd. Mohsim who was a tenant in the said property and the property belongs to one Sh. Vijay Kumar. The said property had been vacated by Mohd. Mohsim prior to the incident alleged by the claimant and the said Mohd. Mohsim also, it is stated deals in seasonal/festival items separately and individually under the different title and names at different places, while the answering respondent is running its business at C1, DSIDC, CNC New Seelampur, Delhi since long back and even prior to the date of the alleged incident. As such, respondent prays for dismissal of the claim.
16. Workman filed a rejoinder denying the stand of the management as being absolutely false and frivolous and he has reiterated the contents of the claim as being true and correct.
17. On the basis of the pleadings, following issues were framed by my Ld. Predecessor on 17/11/2004:
1. Whether workman was employee of the management?
2. Whether China Bhai Rakhi and Holy Bhandar were not the owner of the premises No. 342, PhaseI, Shahjada Bagh, Delhi at the time of dispute.
3. Whether the services of Sh. Rakesh Saxena S/o late Anil Saxena C/o Bhartiya Kranti General Mazdoor Sabha, T248, Mangolpuri, Delhi83 have been terminated illegally and/or unjustifiably by the management and if so, to what sum of money as monetary relief along with consequential benefit in terms of existing laws/Government notification and to what other relief is he entitled and what directions are necessary in this respect?
18. During evidence, workman examined himself as WW1 on his affidavit Ex. WW1/A and Sh. Balister from ESI Office as WW2. Besides, WW1 tendered following documents in his evidence:
1. ESI form, Ex. WW1/1.
2. Discharge slip from Golden Century Hospital, Ex. WW1/2.
3. OPD card from ESI Hospital, Ex. WW1/3.
4. Copy of FIR, Ex. WW1/4.
5. OPD ticket from ESI Hospital, Ex. WW1/5.
6. Copy of demand notice dated 17/04/02, Ex. WW1/6.
7. Postal receipt, Ex. WW1/7.
8. Copy of ESI card, Ex. WW1/8.
9. Copy of claim filed before the conciliation officer, Ex. WW1/9.
WW2 proved the ESI record as Ex. WW2/1 collectively. Besides, during his cross examination, he produced one declaration form submitted by the management being Ex. WW2/M1.
19. Management, on the other hand, examined Mohd. Haseen @ Cheena Bhai Rakhi Wala as MW1 on his affidavit Ex. MW1/A. Besides, he tendered following documents:
1. Copy of rent agreement, Ex. MW1/1.
2. Copy of notice from BSES, Ex. MW1/2.
20. Arguments were heard. I proceed to decide the claim on the basis of material on record, in the light of arguments addressed on behalf of both parties. My findings on each issue are as under: ISSUE No. 1
21. Management has set upon a course of complete denial of relationship with the claimant/workman and in fact it has tried to deny any link with the respondent or its business under the name of M/s China Bhai Rakhi & Holi Bhandar and as such according to the respondent neither respondent was management nor the claimant was an employee of the respondent.
22. However, the documentary evidence brought on record establishes it clearly that Rakesh Saxena claimant was very well an employee of M/s China Bhai Rakhi & Holi Bhandar, Shahzada Bagh and also the fact that Mohd. Haseen respondent MW1 was very well the proprietor of M/s China Bhai Rakhi & Holi Bhandar. Reference is had to page 9 of Ex. WW2/1 collectively. This part of the record proved through the official from ESI Department who brought the entire record and page 9 is a form showing the name of the insured as Rakesh Saxena claimant and the name of the management as M/a China Bhai Rakhi & Holi Bhandar, Shahzada Bagh, Delhi while the name of the proprietor on the back page itself is shown as Mohd. Haseen encircled in red. This is a document from a Government Department and there is no material on record to contradict the same.
23. WW2 Sh. Balister from ESI, Local Office had produced this record and even though in his cross examination he has replied that the signature at point A on back side of page 9 of Ex. WW2/1 collectively had not been put in his presence but that would matter little and be of little significance as it has remained unrebutted that the signature at point A in red is that of Mohd. Haseen. No such suggestion was put to him that the signatures were not of Mohd. Haseen, Proprietor at point A. Even otherwise, it has not been brought in any way in the cross examination that this witness would have any motive to depose falsely or to bring a false record or that he had any enmity with the management or special relations with the workman. He is a public servant and without any other circumstances on record, the record being public record is to be held to be genuine. The remaining documents brought on record by the workman are the medical record and all the documents taken together make it clear that claimant was working with the management and while in the course of his duty he met with an accident which resulted in permanent disability to the tune of 60% as is shown on page 1 of Ex. WW2/1 collectively.
24. Besides, the declaration form Ex. WW2/M1 further supports the same conclusion as this form also shows the name of the employee as Rakesh Saxena and of the management as China Bhai Rakhi & Holi Bhandar and the signatures of Mohd. Haseen as proprietor thereof. Reply of WW2 in the cross examination that he does not know whether any person named Mohd. Mohsin is running the factory at the said address or not is absolutely of no significance as an official coming from ESI Department only producing the record, is not supposed to be having such personal knowledge about who else may be running a factory at the given address. His knowledge is supposed to be based only on record and WW2 has already very well proved the records.
25. The rent agreement, photocopy of which has been brought on record by MW1, is of no relevance in the face of the evidence above discussed because even it is assumed for a moment that one Mohd. Mohsin entered into an agreement with Sh. Vijay Kumar, landlord of the premises; would not lead to any implication that any other person could also not be a tenant in the same premises or that he could not be running the business in the same premises in a different portion
26. Document Ex. MW1/2 would also be of no help to the defence set up by the management in as much as the said notice supposed to have been issued from BSES, Yamuna Power Limited to one Gulshan Sahni on RC China Bhai Rakhi & Holi Bhandar at DSIDC, Seelampura address would also not imply in any manner that the management under the proprietorship of Mohd. Haseen under the name and style of M/s China Bhai Rakhi & Holi Bhandar was not beign run at Shahzada Bagh. In fact, there is no mention of Mohd. Haseen or China Bhai Rakhi & Holi Bhandar on this document which is merely mentioning China Bhai without any other particular.
27. Even otherwise, management has set upon a course totally self contradictory one after another showing that management had raised a false defence knowingly. The affidavit of MW1 would establish this fact very clearly. The top portion of the affidavit reads as under: "Affidavit of Mohd. Haseen @ Cheena Bhai Rakhi Wala S/o Sh. Haji Abdul Ghafoor Prop.
of Cheena Bhai Rakhi and Holy Bhandar"
And the para 1 of the affidavit stating as under: "That the deponent is the Proprietor of the management in the above noted case and is well conversant with the facts and circumstances of the case and thus competent to swear this affidavit. (later on the words 'not' & 'alleged' have been added by handwritten mode not bearing any initials of the person who has done this nor any date as to when it was done nor any initial of the Oath Commissioner who may have authorized this alteration. In view of this, the words 'not' & 'alleged' shall not read as part of the affidavit being completely an unauthorized alteration)
28. Even assuming for a moment that the words 'not' & 'alleged' were already there in the original affidavit, the sentence would be reading as under and which would not be making any sense even in the context: "That the deponent is 'not' the Proprietor of the 'alleged' management in the above noted case and is well conversant with the facts and circumstances of the case and thus competent to swear this affidavit"
29. Above all, it is the management in this case who has actually proved the relationship of employeremployee between it and the claimant, particularly towards the end of the cross examination of WW1 where the suggestion put by Ld. AR for management reads as under: "It is wrong to suggest that I never went 'for' join the duty and abandoned my job".
Such like suggestion in view of the fact that the very relationship of employeremployee has not been admitted, would be absolutely contradictory and defeating the entire stand of the management. The case is one of through and through raising a false defence by the management not only as regards the claimant being an employee but also regarding its own connection with the business being run under the name and style of M/s China Bhai Rakhi & Holi Bhandar. Even in his statement of tendering the affidavit, Mohd. Haseen has told his name as Mohd. Haseen @ Cheena Bhai Rakhi Wala.
30. In the light of the above, the relevant portion of cross examination of MW1 is being reproduced hereunder: "Signatures at point A and b are mine on my affidavit Ex. MW1/A. It is wrong to suggest that I am known by other name also Cheena Bhai".
31. Since witness has himself informed his name at the beginning of his tendering statement as Mohd. Haseen @ Cheena Bhai Rakhi Wala and also his name on his affidavit has been mentioned, the reply of MW1 in his cross examination is obviously false and incorrect.
32. From the evidence on record, taken in totality, it stands established clearly that the claimant was very well a workman and an employee of the management/respondent. Issue no. 1 accordingly decided in favour of the workman and against the management.
ISSUE No. 2
33. In view of the same reasons as given in issue no. 1, reference is again made to Ex. WW1/1 ESI form, Ex. WW2/1 collectively page 9 and Ex. WW2/M1 where the name of the management is clearly shown as China Bhai Rakhi & Holi Bhandar and its address is shown as 342, PhaseI, Shahzada Bagh, Inderlok, Delhi where they were the owners or the tenants of the premises, becomes absolutely irrelevant for the purpose of adjudicating the present Industrial Dispute as it has also been established that they were the employers/management and the claimant was the workman vide findings on issue no. 1. In an Industrial Dispute, there are two parties i.e industry and the workman. Once it is established that there was employeremployee relationship between the two, it would not matter whether the industry was being run in a premises as being tenant or as being owners of the premises. In the present case, it has been established clearly that workman was an employee of the respondent/management which was running the business under the name and style of M/s China Bhai Rakhi & Holi Bhandar. As such, issue no. 2 regarding ownership of the premises is rendered irrelevant and is disposed of accordingly.
ISSUE No. 3
34. Since management has not even admitted the claimant being its employee and same has been proved by way of evidence, there is no defence in this case regarding termination of service. Workman has supported his statements made in his claim by his affidavit Ex. WW1/A during evidence.
35. During cross examination of workman, management has put suggestions which have been completely away from their own defence in as much as management has put it to the workman that he had deliberately not joined the service after getting medical fitness certificate from the ESI and that he abandoned the job. This suggestion itself being contrary to the own defence of the management set up by it that claimant was not even their employee has already shattered the credibility of the management in this case. In fact, the specific contents of the claim and affidavit regarding the termination of service in para 8 till 12 have remained unrebutted during cross examination.
36. Even the statements of the workman regarding his accident in the course of the duty with the management have remained unrebutted. Workman has also supported his version by the discharge card, OPD card, copy of FIR. Copy of demand notice has also been proved as Ex. WW1/6 and its postal receipt being Ex. WW1/7. Copy of the claim filed before conciliation officer, remains unrebutted. Taking into view the totality of the evidence, it becomes clear that management terminated the service of the workman arbitrarily, without issuing any notice or offering notice pay or offering retrenchment compensation. Management also had no complain against the workman and never issued any show cause notice or charge sheet or held any enquiry. Termination of service of the workman occurred on account of the annoyance of the management on account of demands being made by the workman regarding his rights and facilities under the Labour Laws and it was done at the whims and fancy of the management. On filing of the claim, respondent set upon a course of complete denial of employeremployee relationship and even of its own connection with the management in any way. The defence raised by the management having been rendered absolutely false in the face of the evidence; issue no. 3 also stands decided in favour of the workman and against the management. RELIEF
37. Workman in para 13 of his affidavit has stated that sine 19/03/02 onwards he remained unemployed and he was disabled. Even inspite of receiving a disability certificate, he has not been able to obtain an alternative job and that he is dependent on his mother and other family members for financial assistance and for survival.
38. Workman had also got produced the disability certificate from the ESI Department which is the first page of Ex. WW2/1. Same is showing permanent disability accrued to the workman.
39. Workman had appeared before this court and all his four fingers and thumb were found to be amputated. In this condition, it is evident that not many would have been ready to employ the workman and there is no reason to disbelieve the statements of the workman above referred in this regard.
40. In case reinstatement was to be ordered, the case would have called for award of 100% back wages in view of the peculiar set of facts and circumstances. However, at this stage I deem it more appropriate to award compensation in lieu of reinstatement and back wages.
41. Although there are various recent judgments of the Hon'ble Supreme Court granting small amount of compensation ranging from Rs. 10,000/ to 25,000/, none of these judgments lay down any formula or guidelines to arrive at the said amount. However, in J.U. Akhtar Vs. Management of M/s Markfed Agro reported as 2006 VIII AD (Delhi) 33, the Hon'ble Delhi High Court has held that in such cases, the compensation cannot be less than the back wages he would otherwise be entitled too. Accordingly, I award compensation to the tune of Rs. 2,16,000/ to the workman along with interest @ 18% per annum from the date of filing claim till realisation, besides litigation cost of Rs. 10,000/. Reference is answered accordingly. Award is passed. Copy of the award be sent to appropriate government for publication within 30 days from the receipt of the award.
File be cosigned to record room.
Announced in the open court Today on 10/10/2008 (SUJATA KOHLI) Additional District & Sessions Judge Presiding Officer Labour CourtII, Karkardooma Courts, Delhi.