Delhi District Court
Sh. Baidyanath Mandal vs M/S Cosmic Creations (P) Ltd on 31 October, 2012
IN THE COURT OF SH. CHANDRA GUPTA
PRESIDING OFFICER LABOUR COURTX
KARKARDOOMA, DELHI.
Ref. No. : F. 24 (1636)/2000Lab./2360812
Dated : 14.06.2000
I.D.No. : 319/06
Unique Case ID no. No. 02402C0023302000
Sh. Baidyanath Mandal,
C/o P.L. Sebastian, 2/4, Santi Niketan,
New Delhi.
R/o 76, Sainik Vihar, Mohan Garden,
New Delhi110059. .................Workman
Versus
M/s Cosmic Creations (P) Ltd.,
(i) 3/10, IIIrd Floor, Kirti Nagar,
Industrial Area, New Delhi110015
(ii) 223, Phase IV, Udyog Vihar,
Gurgaon, Haryana. ...................Management
Date of Institution of the case : 08.07.2000
Date on which reserved for Award : 27.09.2012
Date on which Award is passed : 31.10.2012
A W A R D
The workman Sh. Baidyanath Mandal, raised an industrial
dispute regarding the termination of his services by the management of
M/s Cosmic Creations (P) Ltd.. The appropriate Government on being
I.D No.319/06 PAGE NO.1 OF 46
satisfied regarding the existence of Industrial Dispute between the
parties, made a reference for adjudication. The said reference is as
under.
"Whether the services of Sh. Baidyanath Mandal
have been terminated illegally and/or unjustifiably
by the management, and if so, to what relief is he
entitled and what directions are necessary in this
respect?"
Thereafter, statement of claim was filed by the workman.
It is stated by the workman in his statement of claim that he is a tailor
by profession; that he had been working as Piece rate employee with
the respondent/management since May, 1991; that the
claimant's/workman's wife met with an accident in the month of June, 1999 and she had to be hospitalized for a few months; that after leaving the hospital, she was sent to the workman's house in his native village in Bihar; that on 08.10.1999, the workman received a telephone call from his relatives in Bihar that his wife was very sick and asked him to come home; that on the following day, the 09th October, 1999 the workman approached the management for some days leave to go home to meet his wife from 11.10.1999 as 10th October, 1999 was a Sunday; that the management refused to receive the leave application and thus the workman sent the same by Regd. A.D. post and proceeded I.D No.319/06 PAGE NO.2 OF 46 to his native village in Bihar; that from Bihar, he sent a telegram asking for 13 days leave since his wife was still seriously sick; that the workman returned to Delhi on the morning of 25.10.1999 and reported for duty at the factory of the management at 10 A.M on 25.10.1999; that the management refused permission to the workman even to enter the factory on 25.10.1999 and said that he would not employ him anymore and that he had terminated the services of the workman; that the workman was turned away from the factory; that the management does not give any leave to the workman even in cases of emergency which is against the law; that the workman is ever willing to work for the management; that he had merely requested for 13 days leave as his wife was seriously sick in his native village in Bihar, which was denied by the management; that inspite of repeated requests the workman has not received his pay for the period 01.10.1999 to 25.10.1999 a total of 25 days; that he was given his wages @ 150/ per day on piece rate basis; that thus he is entitled to recover an amount of Rs. 3,750/ towards arrears of wages, plus Rs. 2,400/ as bonus for the year 19981999; that he is also entitled to be reinstated w.e.f. 25.10.1999 when the services of the workman was illegally terminated by the management; that the act of the management is illegal and arbitrary, as well as an unfair labour practice as the workman had only asked for 13 days leave on account of the serious illness of his wife in his native village in Bihar; that due to the action of the management, I.D No.319/06 PAGE NO.3 OF 46 the workman is at present without any employment. Hence, he has claimed reinstatement with full back wages and continuity of his services.
Notice of the filing of statement of claim was sent to the management, who had appeared and contested the claim filed by the workman by filing its written statement. In the written statement filed by the management it has stated that the management i.e. Cosmic Creations Pvt. Ltd. is a Company registered under the Companies Act and is engaged in fabrication of ready made garments for foreign buyers as well as for local market; that as the market of ready made garments is a fashion trade, therefore, the time is the essence of the contracts and in order to fulfill its obligation towards its buyers, the management engaged the services of its employees; that Sh. Baidya Nath was one of such employees; that he was appointed as a Tailor w.e.f. 01.01.1994 on a monthly salary of Rs. 1,369/ and his last drawn monthly salary was Rs. 2,772/; that Sh. Baidya Nath Mandal had developed a habit of remaining unauthorizedly absent from his duties without intimation thereby wholly upsetting the chain process of production; that during the year 1998 he was absent on 61.5 days; that he was again absent for 82.5 days during the year 1999; that thus, during the period of one year and ten months, he was absent for 144 days besides weekly off, ESI Leave, Casual and privileged leave; that time and again he was advised not to remain absent from his duties and I.D No.319/06 PAGE NO.4 OF 46 thereby disturbing the chain of working but to no effect; that he again started remaining absent from 11.10.1999 and inspite of intimation sent to him he did not report for duty; that the management had a factory in Delhi for the said purpose and thus covered under the provisions of ESIC Act as well as EPF & Miscellaneous Provisions Act and thus he became a member of ESIC and EPF and his contributions towards his said memberships were deposited with the concerned authorities; that the said contributions itself would falsify the contentions of the workman of being a piece rate worker. The management has taken the preliminary objections that the order of reference as made by the Appropriate Government shows that there existed a dispute between Cosmics Creations Pvt. Ltd and its workman Sh. Baidya Nath Mandal, whereas the statement of claim filed by the workman shows that there existed a dispute between Baidya Nath Mandal and Shri Vivek Mago; that no one except the Appropriate Government have right or authority to change the parties of the reference; that the present claim is preferred by Sh. Mandal is thus not a statement of claim in the yes of law; that the very premises of the present claim is that the services of the workman were terminated by the management w.e.f. 25.10.1999; that the said premise does not exist; that the workman is remaining absent w.e.f 11.10.1999 and has not reported for duty despite instructions in writing; that the present reference is thus against the facts and circumstances of the case and I.D No.319/06 PAGE NO.5 OF 46 has been made in a mechanical manner without application of mind and is thus not maintainable. On merits, it is denied that the workman was working as a piece rate employee since May, 1991; that in fact he was appointed w.e.f. 01.01.1994 as a tailor on a monthly salary of Rs. 1369/ and his last drawn salary was Rs. 2,772/ per month; that the management is covered under the provisions of ESIC Act and thus he was covered under the ESIC Act w.e.f. the date of his appointment and was allotted Code No. 113093 892; that he was also covered under the provisions of EPF and Miscellaneous Provisions Act and was allotted Code No. DL1575916; that the ESIC and EPF contributions were accordingly deducted on the wages paid to the workman and similarly bonus and leave encashment was also paid to him; that the management had no knowledge about the alleged accident met by the wife of the workman and/or her hospitalization as the workman never informed it to the management; that the workman had developed a habit of remaining absent from his duties and in order to cover his own said lapse, he has invented this fairy tale; that he neither applied for leave nor sent any application much less any telegram was received by the management; that it is denied that the workman has reported for duty on 25.10.1999 and/or on any day after 10.10.1999; that the workman did not come to the premises of the management after 10.10.1999 and is still remaining absent from his duty; that during the period w.e.f. 01.10.1999 to 10.10.1999 the workman worked for 9.5 I.D No.319/06 PAGE NO.6 OF 46 days and earned wages amounting to Rs. 849/; that after making statutory deductions on account of ESIC contributions and EPF contributions, a sum of Rs. 732.10 is due to him besides the amount of bonus for the year 199899 and 19992000, which he had not collected of his own volition; that it is denied that any other amount is due to him or that he was given wages at the rate of Rs. 150/ per day; that the management had not taken any action against the workman and he is still remaining absent and in case he still wants to work with the management he may be directed to report for duty at the factory of the management situated at 223, PhaseIV, Gurgaon giving a simple assurance in writing that he will not remain absent unauthorizedly in future. All other allegations are denied. Hence it is prayed that the claim be dismissed.
No rejoinder to the written statement of the management was filed by the workman.
On the pleadings of the parties vide order dated 20.03.2002, the following issues were framed:.
1. Whether the workman himself abandoned the job by remaining absent w.e.f. 10.10.1999?OPM.
2. As per terms of reference.
No other issue arose or pressed and the case was adjourned for workman evidence.
In support of his case, the workman himself has appeared I.D No.319/06 PAGE NO.7 OF 46 as WW1, tendered his affidavit by way of evidence Ex WW1/A. He has relied upon the documents Exts.WW1/1 to WW1/5. After examining WW1, the workman evidence was closed.
In support of its defence, the management has examined Sh. Vivek Mago, Director of the management as MW1, who has tendered his affidavit by way of evidence Ex. MW1/A in management evidence as also relied upon documents Exts.MW1/1 to MW1/3.
The management has also examined Sh. Kuldeep, SSA of PF Organization Wazirpur Industrial Area, Bhavishya Nidhi Bhawan, Delhi as MW2 in management evidence who has deposed that he was posted as SSA in the office of EPF organization at the above address. He had brought the original of form 6A revised for the period March, 1997 to February, 2000 pertaining to Cosmic Creation Pvt.Ltd., 3/10 Kirti Nagar, Industrial Area, New Delhi, which is covered under EPF Code No. DL15759; that he had brought the original of form 6A revised for the period March, 1997 to February, 2000 and had compared the same with the photocopy filed by the management and state that the said photocopies are the true copies of the originals. The same is collectively marked as Ex.MW2/1. This return shows the total earnings of the period of each employee employed by the company.
The management has also examined Sh. Amarnath, LDC ESIC Office, Raghbir Nagar as MW3 in management evidence who has deposed that he had been authorized by the branch manager ESIC I.D No.319/06 PAGE NO.8 OF 46 to appear before the court. His authority letter is Ex. MW3/1; that he has brought certified copy of ledger pertaining to Sh. Baidya Nath, which is Ex. MW3/2 showing payment withdrawal by Sh. Baidya Nath due to his sickness; that he has brought the declaration form of Sh. Baidya Nath, which is certified by his branch manager and the same is Ex.MW3/3; that he had also brought certified copy of form 6 for the year from October, 1989 to March, 1999 and October, 1999 to March, 2000 which is collectively marked as Ex.MW3/4, the same shows the amount of salary received by employees and ESIC deducted; that the form 6 in respect of period 10.1997 to 091998 as well as for the period 04.1999 to 09.1999 could not be brought as the same could not be traced.
After examining MW3 evidence on behalf of the management was closed.
Thereafter, an application has been moved on behalf of the workman, for permission to file some more documents which has been allowed vide order dated 19.02.2008 pursuant to which the workman has reexamined himself in workman evidence as WW1, tendered his additional affidavit Ex.WW1/B along with the documents Exts. WW1/1 to WW1/14. After examining WW1 evidence on behalf of the workman has been closed, on record.
Thereafter, management has reexamined Sh. Vivek Mago, Director of the management in rebuttal management evidence as I.D No.319/06 PAGE NO.9 OF 46 MW1, who has tendered his supplementary affidavit in evidence as Ex. MW1/B as also relied upon documents Exts.WW1/M1 and WW1/M2. After examining MW1 rebuttal evidence on behalf of the management has been closed, on record.
Final arguments have been heard.
It is the submission of the AR for the workman that the workman has been in the continuous service of the management with effect from May, 1991 till 25.10.1999 when the services of the workman are alleged to have been terminated illegally and/or unjustifiably on the part of the management despite the workman having reported for his duty with the management on the said date. It is further the submission of the AR for the workman that the workman had gone on leave to his native village in Bihar on account of illness of his wife on 11.10.1999 and had to remain there till 24.10.1999 because of her illness and had then left for Delhi from his native village in Bihar by train on 24.10.1999 and had reported for duty with the management on 25.10.1999 when he had not been allowed to join/resume his duties with the management as a tailor resulting in illegal and unjustified termination of services of the workman on the part of the management on the said date. It is further the submission of the AR for the workman that apparently the workman had submitted leave application to the management in respect of his said absence from duties but the same had not been taken by the management nor I.D No.319/06 PAGE NO.10 OF 46 any endorsement made on the same and accordingly at the most his absence from duties as tailor with the management w.e.f. 11.10.1999 to 23.10.1999 can be termed as unauthorized but it was never the intention of the workman to abandon his duties with the management as is evident from the fact of his having reported for his duties with the management on 25.10.1999 on which date the management has allegedly not allowed the workman to resume his duties as Tailor with the management thereby the workman having been forced to raise an industrial dispute in respect of his alleged termination of services on the part of the management on 25.10.1999 with the appropriate Government resulting in conciliation proceedings between the parties, which have apparently resulted in failure necessitating the reference of the instant dispute to this Hon'ble Court for its adjudication and disposal in accordance with law by way of the instant reference.
It is thus, the submission of the AR for the workman that the services of the workman have been terminated illegally and /or unjustifiably by the management on the date alleged. AR for the workman has also filed written submissions, on record.
AR for the management, however, argues to the contrary and submits that the workman remained absent unauthorizedly from his duties with the management w.e.f. 11.10.1999 and has not rejoined his duties with the management despite the management having sent notices to the workman for resumption of his duties with the I.D No.319/06 PAGE NO.11 OF 46 management vide its letter dated 24.12.1999 Ex. WW1/M2 sent by registered AD post dated 27.12.1999 Exts. WW1/M3 and WW1/M4 at the addresses of the workman on record with the management and thus the workman has abandoned his services with the management. It is further the submission of the AR for the management that the management had never terminated the services of the workman on 25.10.1999, the date alleged and in fact has been always ready and willing to keep the workman in service with the management as stated by the management in its written statement to the instant statement of claim wherein the management has stated that in fact the management had not taken any action against the workman who is still remaining absent and in case he still wants to work with the management he may be directed to report for duty at the factory of the management situated at 223, PhaseIV, Gurgaon giving a simple assurance in writing that he will not remain absent unauthorizedly in future. It is further the submission of the AR for the management that the workman is a habitual absentee from his duties with the management and has remained absent from his duties with the management on a number of days while being in the employment of the management. It is further the submission of the AR for the management that no rejoinder has been filed by the workman to the written statement of the management to his instant statement of claim, on record, wherein the management has placed, on record its willingness to take the workman back on duty I.D No.319/06 PAGE NO.12 OF 46 which goes to show that the workman is not having the requisite intention to join duties with the management and accordingly, his allegation that his services have been terminated on the part of the management on the date alleged is not borne out from his conduct in not taking up the offer of the management to resume duties with the management. It is further the submission of the AR for the management that the workman has admitted in his cross examination on behalf of the management as WW1 in workman evidence that he had not applied anywhere for the job subsequent to his alleged termination of service on the date alleged as also has admitted that his family comprises of his wife and four children and that he is incurring an expenditure of about Rupees four to five thousand per month on his monthly expenses which it is not possible for him to meet if he is unemployed and not gainfully employed as alleged by him and accordingly, his allegation of being unemployed though it has not been mentioned by him with effect from which date or with effect from the date of the alleged termination of his services is not proved, on record. It is further the submission of the AR for the management that in view of the conduct of the workman he is not entitled to the relief as claimed by him. It is further the submission of the AR for the management that the affidavits by way of evidence of the workman filed in workman evidence are not verified in accordance with law and as such are not admissible in evidence. AR for the management has I.D No.319/06 PAGE NO.13 OF 46 also filed written submissions as also relied upon citations 2003 LLR 5 Bombay High Court, Sonal Garments Vs. Trimbak Shanker Karve; 2003 (4) L.L.N. 616 High Court of Bombay, Raju Sanker Poojary Vs. Chembur Warehouse Company and another; 2006 LLR 713 Regional Manager, State Bank of India, RegionIII, Kanpur Vs. Presiding Officer, Central Government Industrial Tribunalcum Labour Court, Kanpur and another; 2007 LLR 1164 Gujarat High Court, Gopal Nandkishor Sharma Vs. Manager, Nanavati Associates; 2008 LLR 87 Allahabad High Court, U.P. Power Corporation Ltd and Others Vs. Presiding Officer, Labour Court, Gorakhpur and Others; 2008 LLR 332 Madhya Pradesh High Court, Hemraj Vs. Director, Sericulture, Bhopal and Anr.;1956 Calcutta 496 (AIR V43 C 143 Sept.) Bisakha Rani Ghose Vs. Satish Chandra Roy Singha and Others; (33) 1952 Calcutta 255 Chandra Kundu Vs. State of Bengal and Others; AIR 1964 Bombay 38 Messers Shamsunder Rajkumar Vs. Messers Bharat Oil Mills Nagpur; AIR 1914 Allahabad 197 Mangal and Others Vs. Emperor; AIR 1962 Patna 101 Dipendra Nath Sarkar Vs. State of Bihar and Others; AIR 1968 Punjab and Haryana 406 Bhupinder Singh Vs. State of Haryana and Others; AIR 1967, Goa Daman and Diu 142 Gangadhar Narsingdas Agarwal Vs. Union of India and another; I.D No.319/06 PAGE NO.14 OF 46 AIR 1970 Supreme Court 652 A.K.K. Nambiar Vs. Union of India and another; 2002 (2) L.L.N. 391 Supreme Court of India, Range Forest Officer Vs. S.T. Hadimani; (2006) 1 Supreme Court Cases 106 R.M. Yellatti Vs. Asstt. Executive Engineer and 2006 (108) FLR 201, U.P. State Brassware Corporation Ltd. and another Vs. Udai Narain Pandey, in support of his submissions.
My issuewise findings are as under: ISSUE No.1.
It is seen from the record that the workman has appeared in his workman evidence as WW1, filed his affidavit by way of evidence Ex. WW1/A, in which he has reiterated the contents of his statement of claim to the effect that he was a tailor by profession; that he was working as a piece rated employee with the respondent/management since May, 1991 and had been receiving wages as a piece rated employee; that no holidays or leave were ever allowed by the respondent/management, which is against the Standing Orders governing factories; that the respondent is the Director of the Export Company doing business under the name of Cosmic Creations (P) Ltd, exporting ready made garments to foreign and Indian clients; that the workman was a tailor manufacturing clothes for export; that the claimant used to tailor the clothes as per the requirement of the company; that respondent/management was forcing him to work on I.D No.319/06 PAGE NO.15 OF 46 monthly wages, instead of piece rate, since it would have to pay less for his work; that it used to threaten the workman to sign also in a register, showing that he was a monthly wage earner; that he had refused to sign those registers since all the other workmen were also working as piece rated employees in the respondentcompany; that on 08.10.1999 the workman received a telephone call from his relatives in Bihar that his wife was very sick and asked him to come home; that on the following day, the 09th October, 1999, the workman approached the management for some days leave to go home to meet his wife from 11.10.1999 as 10th October was a Sunday; that the respondent/management refused to receive the leave application and thus the workman had to send the same by Regd. A.D. Post and proceeded to his native village in Bihar; that from Bihar, he sent a telegram asking for thirteen days leave, since his wife was still seriously sick; that the workman returned to Delhi on the morning of 25.10.1999 and reported for duty at the factory of the respondent/management at 10:00 A.M. on 25.10.1999; that the respondent/management on 25.10.1999, refused him entry into the factory and asked him not to come back for work any more as his services have been terminated since he refused to work on monthly basis; that this act on the part of the respondent/management is illegal and arbitrary as well as an unfair labour practice as the workman had worked for six to eight years in the factory of the I.D No.319/06 PAGE NO.16 OF 46 respondent/management as a piece rated worker; that the workman has not received wages for 25 days from 01.10.1999 to 25.10.1999; that he was given wages at the rate of Rs. 150/ per day on piece rate basis; that he was entitled to recover an amount of Rs. 3,750/ from the respondent/management as unpaid wages plus Rs. 2,400/ as bonus for the year 19981999; that he was also entitled to be reinstated w.e.f. 25.10.1999 when his services were illegally terminated without any prior notice; that the act of the respondent/management is illegal and arbitrary as well as unfair labour practice as he has been terminated without any notice and for no reason; that the respondent/management was biased against him since he had refused to work on monthly wags, which would have been lower than the amount he received as piece rated worker that the workman is unemployed at present; that the workman had raised an industrial dispute before the Assistant Labour Commissioner, who had called both the parties for settlement, but the representative of the management refused to take him back and the Assistant Labour Commissioner submitted his report to the Government of Delhi and hence, the present reference is before this Hon'ble Court; that the submission of the management that the workman was absent from work without authorization is false; that the workman has always applied for leave; that the dates of leave given in the reply are false because the management never maintained a daily attendance register; that the allegations of unauthorized absence is only I.D No.319/06 PAGE NO.17 OF 46 a trumped up case merely to find a reason to dismiss the workman and is not based on any evidence and accordingly the workman is entitled to be reinstated in service as a piece rated employee with the management w.e.f. 25.10.1999 with full back wages along with consequential benefits.
It is seen from the record that the workman has relied upon documents Exts. WW1/1 to WW1/5, on record. Ex. WW1/1 is copy of letter dated 30.06.1999 of the workman to the management; Ex. WW1/2 being copy of another letter in respect of leave for the period 08.01.1999 to 13.02.199 of the workman to the management; Ex. WW1/3 being copy of letter dated 26.03.1998 of the workman to the management; Ex. WW1/4 being copy of another letter dated 28.05.1998 of the workman to the management, Ex. WW1/5 being copy of letter dated 06.04.1998 of the workman to the management.
This witness has been cross examined at length by the management in workman evidence, in which he has deposed inter alia that he was matriculate; that he can sign in English; that he had no proof that he had worked with the management since May, 1991; that piece rate means that he used to be paid according to the work done by him; that he did not have any proof that he was a piece rated worker; that he was a member of ESI and a card was issued by ESI authorities; that it was correct that his date of appointment as mentioned on it is 01.01.1994; that the ESIC Card was issued not from the actual date of I.D No.319/06 PAGE NO.18 OF 46 appointment; that he had seen the original payment of wages register pertaining to the period 01.01.1994 to March, 1997, the same bears his signatures month to month, photocopy of the same is collectively marked as Ex. WW1/M1; that he was threatened and forced to work on monthly basis, though he was working on piece rate since May, 1994; that he made no complaint about the said threats and application of force to anyone; that it was wrong to suggest that he remained absent for 82.5 days in the year 1999 and that his wages were deducted; that it was also wrong to suggest that he remained absent for 61.5 days during the year 1998 and his wages were deducted for the said days of absence; that it was correct that he was paid the wages for the days he worked in a month; that it was correct that he always received such amount of wages as were due to him per month on the basis of his working days; that it was correct that S/Sh. Jokhan, Ram Avtar, Ahmed Ali and many other tailors were working with him and performing the same duties as that of his; that he had not received Ex. WW1/M2 envelope thereof are Ex. WW1/M3 and Ex. WW1/M4, however, it was correct that Ex. WW1/M2 and Ex. WW1/M4 bear his address; that Ex. WW1/M3 bears his old address; that it was correct that there are very large number of garment factories in and around Delhi, however, it is difficult to get job; that he did not apply anywhere for the job; that he had a wife and four children; that house belongs to them; that two children were school going; that his monthly I.D No.319/06 PAGE NO.19 OF 46 expenses were Rupees four to five thousand; that it was wrong to suggest that he was called upon to report for duty; that it was correct that management had only one factory and the same is closed but now is working at Gurgaon; that he was never called upon to report for duty at Gurgaon; that it was wrong to suggest that even in the court, he was told/directed to join duty in Gurgaon; that it was wrong to suggest that he did not went to factory for work since 10.10.1999; that 10.10.1999 was Sunday which was the weekly off day of the factory and he sought leave from 11.10.1999 to 23.10.1999 and 24.10.1999 was Sunday and he reported for duty on 25.10.1999 and was refused duty on 25.10.1999; that he moved a leave application and also orally requested for leave but his leave application was thrown away; that it was correct that he remained absent unauthorizedly from 11.10.1999 to 23.10.1999; that his wife was seriously ill; that he did not inform the management about sickness of his wife; that it was wrong to suggest that no application was made by him; that it was wrong to suggest that his services had not been terminated; that it was wrong to suggest that he was deposing falsely.
This witness has again appeared as WW1 in workman evidence, tendered his additional affidavit by way of evidence ex. WW1/B along with documents Exts. WW1/1 to WW1/14 in the same pursuant to permission granted by the court in this regard on an application made on behalf of the workman vide order dated I.D No.319/06 PAGE NO.20 OF 46 19.02.2008, on record. Vide his additional affidavit by way of evidence Ex. WW1/B, he has relied upon documents Exts. WW1/1 to WW1/14, on record. Exts. WW1/1 to WW1/7 being leave applications allegedly made by the workman to the management in respect of certain periods of leave he wished to avail from his duties with the management; Ex. WW1/8 being copy of alleged registered envelope addressed to the management; Ex. WW1/9 being alleged AD card of the management; Ex. WW1/10 being postal registration receipt dated 09.10.1999; Ex. WW1/11 being acknowledgment of a telegram; Exts. WW1/12 and WW1/13 being money order/money order receiving receipts and Ex. WW1/14 being a Railway Journey cum Reservation Ticket allegedly in respect of the workman of journey date 24.10.1999 from Muzzaffarpur Junction to Delhi.
This witness has been cross examined at length by the management in his additional workman evidence, in which he has deposed inter alia that it was correct that whenever he moved an application for grant of leave, the Director of the management used to put endorsement allowing or rejecting the same; that it was wrong to suggest that he was ever warned orally or in writing by the management whenever he did not return in time after availing the leave or whenever he had taken unauthorized leave; that he had never taken any leave without permission; that it was wrong to suggest that many times he had taken leave prior to filing an application for I.D No.319/06 PAGE NO.21 OF 46 sanction of the leave; that he had informed through his coworker Sh. Suresh Mandal in the company of the management that he had fallen ill and wanted to extend his leave, the application of which was given later on by him is Ex. WW1/4; that it was correct that in the application Ex. WW1/4 he had not mentioned that he had informed the management through Sh. Suresh Mandal; that Sh. Suresh Mandal is alive; that he had never received any letter from the management; that he stayed in Pandav Nagar prior to 1994; that the management was aware of his address at native place since his ESI card was made on that address; that in the year 1994 the allocated dispensary to him was at Sant Pura; that it was correct that in the year 1998, the Sant Pura Dispensary was his allocated dispensary; that the original of Ex. WW1/7 was sent to the management through registered post; again said Ex. WW1/7 is not the original of the document which was sent to the management but the same is the application given by him to the management through hand but the Director of the management had refused to sanction the leave; that he had given this application on 09.10.1999; that it was wrong to suggest that he had never presented this application to the management; that it was wrong to suggest that the AD card Ex. WW1/9 is forged and fabricated; that Ex. WW1/11 is the receipt of the telegram sent by him to the management and it also had the address of the management; that it was correct that the ticket Ex. WW1/14 was to be handed over to the ticket collector but since on I.D No.319/06 PAGE NO.22 OF 46 the said date no one was deputed at the gate to collect the ticket on the railway station because of the extreme cold that is why the said ticket was carried by him; that he was tenth passed; that he was not very good at reading, writing or speaking in English.
Thereafter, workman evidence has been closed, on record. It is seen from the record that the management has led the evidence of Sh. Vivek Mago, Director of the management in its management evidence as MW1, who has tendered his affidavit by way of evidence Ex. MW1/A in management evidence as also Ex. MW1/B in rebuttal management evidence and relied upon documents Exts. MW1/1 to MW1/3 and Exts. WW1/M1 and WW1/M2 in the same respectively, on record. In his affidavit by way of evidence Ex. MW1/A he has deposed that he was the Director of the company and was conversant with the facts of the matter and thus competent to depose; that the management is a private limited company engaged in the fabrication and export of garments; that the export of the garments is highly competitive business and delivery/shipment of the consignment is time bound because in all export contracts with the foreign buyers, time is the essence of the said contract; that the fabrication of garment being a chain work and the tailor being the life line of the production of the garments and thus unauthorized absence of a tailor upset chain working and adversely affects the production schedule resulting in delay in shipment which in some cases results in I.D No.319/06 PAGE NO.23 OF 46 nonacceptance of consignments and/or heavy financial penalties; that the company is covered under the Employees State Insurance Corporation Act as well as under the provisions of Employees Provident Funds and Miscellaneous Provisions Act; that thus all the employees employed by the company, who were eligible employees covered under the said statute were required to be covered under the said statutes; that the ESIC Act required that every eligible employee be covered under the Act from the very day of his employment; that Sh. Baidyanath was appointed with effect from 01.01.1994 and thus was covered under the ESIC Act from that very day; that he was allotted ESI Number 113093892 under the Code being an eligible employee; that he was covered under the provisions of EPF Act and was allotted EPF No. DL 1575916 under the Company's code number; that as required under the Factories Act, attendance of all the employees is marked by the company in muster roll; that in case the attendance is not marked in the muster roll, it would not be possible to calculate the contribution payable to ESIC Authorities, as the calculation is to be made on the basis of the days an employee has worked in a particular week; that the said muster roll is also required for calculation of EPF Contribution; that Sh. Baidyanath had developed the habit of remaining unauthorizedly absent from his duty without intimation thereby upsetting chain of process of production; that he was absent in the year 1998 on 18.01.1998, 07.02.1998, I.D No.319/06 PAGE NO.24 OF 46 12.02.1998 (½ day), 31.03.1998 (½ day), 27.04.1998, 28.05.1998 (½ day), 30.06.1998 (½ day), 15.07.1998 (½ day), 19.07.1998 (½ day), 28.07.1998 (½ day), 29.07.1998, 07.08.1998 (½ day), 08.08.1998, 09.09.1998 (½ day), 13.09.1998 (½ day), 06.12.1998, 11.10.1998, 16.12.1998 (½ day); that he was again absent unauthorizedly in the year 1999 on 21.02.1999 (½ day), 03.03.1999 (½ day), 05.03.1999 (½ day), 07.03.1999, 09.03.1999, 11.03.1999, 07.04.1999 (½ day), 08.04.1999, 23.04.1999 (½ day), 29.04.1999 (½ day), 06.05.1999 (½ day), 08.05.1999 (½ day), 18.05.1999 (½ day), 01.06.1999, 11.06.1999 (½ day), 16.06.1999, 17.06.1999, 20 to 29.06.1999, 06.07.1999 (½ day), 15.07.1999, 20.07.1999 (½ day), 13.08.1999 (½ day), 05.09.1999, 03.10.1999 (½ day), 11.10.1999 till date; that despite being verbally persuaded and warned, he showed no improvement and is remaining absent since 11.10.1999; that all the employees employed by the company were engaged on monthly salary basis and similarly Sh. Baidyanath was also engaged on monthly salary basis; that no employee was ever engaged by the company on piece rates basis; that the allegations of the workman that all the employees were employed at piece rate basis is wrong and false as is evident from the payment of wages register; that S/Sh. Jokhan, Ram Avtar and Ahmed Ali were also employed as Tailors; that they also raised industrial dispute and filed their statement of claim against the management; that the employees employed by the management including the workman I.D No.319/06 PAGE NO.25 OF 46 concerned had been and are enjoying all the facilities to which they were/are entitled to; that the allegations levelled by the workman that he used to be threatened to sign on the register showing that he was a monthly wages earner and that he refused to sign these register since all other workmen were also working as piece rate employees is simply false and fabricated; that at no point of time any employee was employed on piece rate basis; that each employee is required to sign the payment register in token of his having received wages; that Sh. Baidyanath also received wages on monthly basis after signing payment of wages register every month, hence there was no question of his being threatened to sign the payment of wages register and/or to work as a monthly rated employee; that he sent him a number of messages through his colleagues calling upon him to report duties and also wrote him letters, which were received back undelivered; that the said letters were posted to him at his address as available on record and as admitted by him to be correct during his own cross examination; that the workman did not report for duty despite efforts and is remaining absent since 11.10.1999; that the company also called upon him to report for duty, during the course of present proceedings unconditionally but even then he did not report for duty; that all the establishments located in Delhi were/are required to observe the weekly off day nominated/notified by Delhi Administration; that establishments located in the area of Kirti Nagar, New Delhi, where I.D No.319/06 PAGE NO.26 OF 46 the factory of the company was located, were required to be closed on Monday and accordingly, Monday was observed as weekly off and not Sunday by the company as alleged by the workman; that the company did not terminate the services of the workman at any point of time and that he had not collected bonus etc. due to him of his own volition as he did not come to the premises of the company on any day since 11.10.1999; that the copies of returns required to be filed under ESIC Act for the year 199798, 199899, 19992000 and 20002001 showing total earnings of the employees employed by the company along with other record placed on record.
That in his affidavit by way of evidence Ex. MW1/B in rebuttal management evidence, the MW1 has deposed inter alia that he was the Director of the management company and conversant with the facts of the matter and thus competent to depose the affidavit; that it was their practice and procedure that whenever Dak is received in the office, the Dak pertaining to the company is kept on the Director's table and the remaining is put on the Board kept for the purpose and is picked up by the employees to whom the same is addressed; that it is common practice that friends and people known to the employees, who have no postal address of their home, used the address of their friends where they are employed and when the Dak is put on such board the concerned employees picked the same which pertains to them and their friends and people known to them; that he categorically states that any I.D No.319/06 PAGE NO.27 OF 46 person by the name of Suresh Mandal was ever in the employment of the company; that furthermore the telephone installed in the company are used by the employees, and also a number of times intimations were and are even now given for seeking permission to remain absent on urgent ground; that ESIC Card issued by the ESI Department always contained only the local address of the employees and permanent address is not mentioned on it so as to allocate the nearest ESI Dispensary to them; that the letters addressed to Sh. Baidyanath Mandal were sent on the address available on the record of the company and at no point of time he intimated about the change of his address; that he states that manufacture/fabrication of garments for foreign buyers are based on contract with the foreign buyers wherein the time is the essence of the contract and fabrication of the clothes being a chain working, the absence of any employee disturbed the production chain which affects the delivery schedule, resulting in heavy penalties and even cancellation of whole the lot of goods ordered; that he states that Ex.WW1/07 was never tendered upon him and the same was not received by him; that he states that as submitted in the written statement, the company never terminated the services of the workman; that in fact, he is remaining absent and has not joined in spite of the orders made even during the court proceedings; that he said that he had not received any telegram receipt of which is Ex. WW1/11.
I.D No.319/06 PAGE NO.28 OF 46
That the management has relied upon documents Exts. MW1/1 to MW1/3 as also Exts. WW1/M1 and WW1/M2. Ex. MW1/1 are the photocopies of the attendance register of the employees of the management w.e.f. January, 1990 to December, 1993; Ex. MW1/2 being copy of a reference in respect of one Sh. Chander Prakash Shukla against the management in the concerned Labour Court along with evidence by way of affidavit of the said workman in the same along with certified copies of certain evidence by way of affidavit, statements of claim and order sheets in the said reference, certified copy of statement of claim workman Sh. Jokhan against the management in I.D. No. 80/2001 as also his affidavit by way of evidence in the same, certified copy of statement of claim of workman Sh. Ram Avtar in I.D. No. 466/98 along with evidence by way of affidavit of the said workman in the said I.D.; Ex. MW1/3 being photocopies of returns of the management under ESIC Act and EPF Act for the year 19971998, 19981999, 19992000 and 20002001 showing total earnings of the employees employed by the management collectively along with other record; Ex. WW1/M1 being copies of the payment of wages register of the management in respect of its employees w.e.f. January, 1994 to March, 1997; Ex. WW1/M2 being the copy of letter dated 24.12.1999 of the management allegedly sent to the workman vide registered AD post dated 27.12.1999 at the address of the workman on the record of the I.D No.319/06 PAGE NO.29 OF 46 management, Exts. WW1/M3 and WW1/M4.
This witness has been cross examined at length on behalf of the workman in management evidence, in which he has deposed that the workman Baidyanath joined the management on 01.01.1994; that it was wrong to suggest that the workman was working since 1991; that it was wrong to suggest that the workman was working on piece rate basis; that he was working on salary basis; that the workman was provided with ESI and EPF; that ESI facility was provided w.e.f. 01.01.1994 whereas he was not aware as to when the workman was covered under EPF Act; that it as not always that the workman availed leave after it was granted by the management; that he was not aware if the workman had applied for leave on 09.10.1999 on the ground of sickness of his wife; that it was wrong to suggest that the management did not pay any money to the workman and turned him out after abusing him; that it was wrong to suggest that the workman informed the management through telegram from his village regarding the illness of his wife and also intimated that he will join the duty after ten days ; that it was wrong to suggest that he refused to take the workman on duty on 25.10.1999; that it was wrong to suggest that during the employment of the workman with the management, his signatures were obtained on payment register by giving threats; that it was wrong to suggest that the workman remained absent without any intimation; that it was wrong to suggest that weekly off on Monday was not I.D No.319/06 PAGE NO.30 OF 46 observed by the management or that the workman was working on that day but was not paid overtime; that he cannot say whether the attendance register pertaining for the period from 1992 to 1993 is available or not. At this stage, it is stated by the witness that the register from the period 1990 to 1993 has already been filed; that it was wrong to suggest that the services of the workman were terminated so that the management was not required to pay his dues/facilities.
In his cross examination in rebuttal management evidence, MW1 Sh. Vivek Mago has deposed that he had no permanent employee whose duty is to collect and distribute the Dak; that it was wrong to suggest that there is no system in the management for collecting and distributing the Dak; that he was not aware if any friend of the workman Baidyanath used to send letters to the workman at the address of the management; that it was wrong to suggest that Sh. Suresh Mandal was his employee of the company; that it was wrong to suggest that said Sh. Suresh Mandal has ever intimated the management about the leave of the workman Baidyanath, on telephone; that it was correct that the management had filed copy of form 6A which is Ex. MW1/W1; that it was wrong to suggest that as per this document, the said Sh. Suresh Mandal is shown to be working with the management at serial no. 27; that the management is having the permanent as well as temporary address of the workman on its I.D No.319/06 PAGE NO.31 OF 46 record; that it never happens that whenever there is no work in the management, the employee is made to sit idle for months without any salary; that the workman has not filed any application with management seeking leave to visit his native place on account of illness of his wife; that it was wrong to suggest that this application was made which was not allowed by the management; that the management did not receive any leave application of the workman through registered post; that it was wrong to suggest that the management had denied work to the workman when he returned after recovery of illness of his wife; that it was wrong to suggest that the workman never remained on unauthorized leave; that it was wrong to suggest that the management has terminated the workman illegally without any rhyme or reason; that it was wrong to suggest that he was deposing falsely.
The management has also led the evidence of MW2 Sh.
Kuldeep, SSA of PF Organization Wazirpur Industrial Area, Bhavishya Nidhi Bhawan, Delhi who has deposed that he was posted as SSA in the office of EPF organization at the above address; that he had brought the original of form 6A revised for the period March, 1997 to February, 2000 pertaining to Cosmic Creation Pvt.Ltd., 3/10 Kirti Nagar, Industrial Area, New Delhi, which is covered under EPF Code No. DL15759; that he had brought the original of form 6A revised for the period March, 1997 to February, 2000 and had I.D No.319/06 PAGE NO.32 OF 46 compared the same with the photocopy filed by the management and state that the said photocopies are the true copies of the originals. The same is collectively marked as Ex.MW2/1 (also Ex.MW1/3). This return shows the total earnings of the period of each employee employed by the company.
The management has also examined Sh. Amarnath, LDC ESIC Office, Raghbir Nagar as MW3 in management evidence who has deposed that he had been authorized by the branch manager ESIC to appear before the court. His authority letter is Ex. MW3/1; that he has brought certified copy of ledger pertaining to Sh. Baidhyanath, which is Ex. MW3/2 showing payment withdrawal by Sh. Badhyanath due to his sickness; that he has brought the declaration form of Sh. Badhyanath, which is certified by his branch manager and the same is Ex.MW3/3; that he had also brought certified copy of form 6 for the year from October, 1989 to March, 1999 and October, 1999 to March, 2000 which is collectively marked as Ex.MW3/4, the same shows the amount of salary received by employees and ESIC deducted; that the form 6 in respect of period 10.1997 to 091998 as well as for the period 04.1999 to 09.1999 could not be brought as the same could not be traced.
Thereafter, management evidence has been closed, on record.
It is seen from the record that the workman has proved his I.D No.319/06 PAGE NO.33 OF 46 affidavit by way of evidence Ex. WW1/A in his workman evidence wherein he has deposed in no uncertain terms that he had been working as Tailor with the management since May, 1991 and receiving wages at the rate of Rs. 150/ per day on piece rate basis; that he had gone to his native village in Bihar on account of serious illness of his wife on 11.10.1999; that when he had arrived back in Delhi from his native village in Bihar on 25.10.1999 and had gone to join his services with the management, the management had refused to allow him to join his duties with the management. It is seen from the record that it has been admitted by the workman that though he had allegedly applied for leave w.e.f. 11.10.1999 to 23.10.1999 (24.10.1999 being Sunday) vide his alleged application Ex. WW1/7, he had not been granted leave by the management and that he had proceeded on unauthorized leave vide his cross examination on behalf of the management as WW1 in workman evidence when he states that it was correct that he had remained absent unauthorizedly from 11.10.1999 to 23.10.1999, his wife being seriously ill.
It is further seen from the record that the workman has categorically deposed that he had reported for duty on 25.10.1999 after coming back from his native village in Bihar where he had gone to attend to his sick and ailing wife but the management had refused to allow him to resume his duties with the management and he had been turned away from his job by the management.
I.D No.319/06 PAGE NO.34 OF 46
Whereas it is the case of the management that the workman who had been employed by it as a Tailor w.e.f. 01.01.1994 on a monthly salary of Rs. 1,369/ per month and his last drawn monthly salary being Rs. 2,772/ per month, had absented himself from his duties with the management w.e.f. 11.10.1999 and had not resumed his duties as Tailor with the management on any date thereafter and thereby had abandoned his services/employment with the management. The management apart from the testimony of the MW1 Sh. Vivek Mago, Director of the management in management evidence by way of his affidavits by way of evidence Exts. MW1/A and MW1/B wherein it has been alleged that the workman had been employed as Tailor with the management w.e.f. 01.01.1994 on monthly salary basis was in the habit of absenting himself from his duties during the period of his services with the management and had been a habitual absentee from his duties with the management had remained absent from his duties with the management w.e.f. 11.10.1999 till the date of filing of the affidavit Ex.MW1/A and thus had abandoned his employment with the management, has relied upon documents Ex. WW1/M2, Ex. WW1/M3 and Ex. WW1/M4 in this regard which is copy of an alleged letter written by the management to the workman dated 24.12.1999 by registered AD post (Ex. WW1/M2) in respect of his alleged absence from duties with the management w.e.f. 11.10.1999 without any leave or sanction and asking him to I.D No.319/06 PAGE NO.35 OF 46 report for duties with the management allegedly sent at the addresses of the workman in the record of the management vide postal registration receipts dated 27.12.1999 and registered AD envelopes Exts. WW1/M3 and WW1/M4 on the addresses of the workman in the record of the management, which have been received back unserved with the report "incomplete address/incorrect address", apart from Ex. WW1/M1, which are copies of the payment of wages register pertaining to the period w.e.f. 01.01.1994 to March, 1997 bearing the signatures of the workman month to month.
The law regarding the concept of 'abandonment' has been dealt with by the Hon'ble Supreme Court of India vide citation AIR 1979 SC 582; G.T. LAD and others, Appellants vs. M/s Chemical and Fibres of India Ltd., Respondent wherein it has been held that abandonment being not a temporary absence but being a total and complete giving up of duties so as to indicate an intention not to resume the same (emphasis supplied). Admittedly, the said inference i.e. of the workman having allegedly abandoned his employment with the management/employer on the part of the employer/management could not but have been arrived at without holding an enquiry in this regard and affording an opportunity to the alleged delinquent employee/workman of being heard as has been held by the Hon'ble Supreme Court of India vide citation MANU/SC/0529/1993 (JT 1993 I.D No.319/06 PAGE NO.36 OF 46 (3) SC 617) D.K. Yadav Appellant vs. J.M.A. Industries Ltd. Respondent as also by the Hon'ble High Court of Delhi vide citations 2010 (117) DRJ 433 Anil Chuttani, Appellant vs. The Oil and Natural Gas Corporation, Respondent; 2010 LLR 312 Hindustan Associates Engineers Pvt. Ltd. vs. Sh. K.K. Aggarwal; MANU/DE/0541/2005 Shakuntla's Export House (P) Ltd. vs. Secretary (Labour); Mount Carmel School vs. The Presiding Officer, Labour Court NoX, Karkardooma Courts, Delhi and Others, vide which it has been held that abandonment is also facet of misconduct (emphasis supplied) which in order to be proved/actionable requires an enquiry to be held, which factum I find from the record has neither even been averred by the management in the instant proceedings nor proved in the same, on record.
I further find from the record that even the letter Ex. WW1/M2 allegedly sent by the management to the workman at his addresses as given by him in its record vide registered AD envelopes Exts. WW1/M3 and WW1/M4 in respect of its allegations that the workman is unauthorizedly absent from his duties with the management since 11.10.1999 without any leave or sanction and asking him to report for his duties with the management is dated 24.12.1999 i.e. after a period of about 2 ½ months from the date of alleged absence of the workman from his duties with the management with no I.D No.319/06 PAGE NO.37 OF 46 explanation whatsoever on the part of the management as to what it was doing in the meantime in respect of its allegations against the workman of his being allegedly absent from his duties with the management unauthorizedly w.e.f. 11.10.1999 whereas the workman has alleged vide his affidavits by way of evidence Exts. WW1/A and WW1/B that he had been sending letters, telegram in respect of his absence from duties with the management w.e.f. 11.10.1999 in the meanwhile vide Exts. WW1/9 to WW1/11 and that consequent to returning back to station from his native village in Bihar by train journey vide Ex. WW1/14 which is the original journey cum reservation ticket in respect of the workman from Muzzaffarpur Junction to Delhi, date of commencement of journey 24.10.1999, (since it is nowhere the case of the management, on record, that the said railway ticket Ex. WW1/14 is not in respect of the workman), he had reported for his duties with the management on 25.10.1999, when he had not been allowed to resume his duties with the management by the management, whereupon he had raised an industrial dispute before the Assistant Labour Commissioner, who had called both the parties for settlement but the representative of the management had refused to take him back and the Assistant Labour Commissioner submitted his report to the Government of Delhi and hence the instant reference.
It is further seen from the record that in view of the instant reference of the appropriate Government to this Court in respect I.D No.319/06 PAGE NO.38 OF 46 of the subject dispute viz. "Whether the services of Sh. Baidyanath Mandal have been terminated illegally and/or unjustifiably by the management, and if so, to what relief is he entitled and what directions are necessary in this respect?" being dated 14.06.2000 it cannot be said that the workman has not been diligent in pursuing his allegations against the management of the alleged termination of his services on the part of the management on 25.10.1999, the date of the alleged dispute and as such the requisite intention of the workman so as to constitute abandonment of service on his part as alleged by the management is not made out against him in the above facts and circumstances of the case.
I further find no force in the submission of the AR for the management that the affidavits by way of evidence of the workman Exts. WW1/A and WW1/B in workman evidence are not verified in accordance with law/not in conformity with the provisions of Order XIX Rule 3 CPC and as such are inadmissible in evidence in view of it being seen from the record that the affidavits by way of evidence of the MW1 Sh. Vivek Mago, Director of the management having been similarly verified in management evidence, on record as also the said objection as to the admissibility of the affidavits by way of evidence of the workman Exts. WW1/A and WW1/B in workman evidence has not been taken by the management at the time of exhibition of the said exhibits in the workman evidence either in the I.D No.319/06 PAGE NO.39 OF 46 examination in chief of the workman WW1 in workman evidence/additional workman evidence or even in the cross examination of the workman on the part of the management in the same, which it is seen from the record has been done on the merits of the affidavits by way of evidence of the workman Exts. WW1/A and WW1/B in the workman evidence, on record. That though the management is not estopped from raising the said objection at this stage of the proceedings, however, in view of my above observations I find from the record that the same is not borne out from the record.
In view of my above observations and findings, I find that the management has not been able to prove the instant issue of the alleged abandonment of service/employment on the part of the workman w.e.f. 11.10.1999, the onus of proving of which was upon the management. The issue is accordingly, decided in favour of the workman and against the management.
ISSUE NO.2 In view of my finding on the issue no.1 , as above, it is thus seen from the record that the workman has been able to prove vide his testimony by way of affidavits by way of evidence Exts.WW1/A and WW1/B along with workman exhibits WW1/1 to WW1/14, on record, that his services have been terminated by the management on 25.10.1999 when he has alleged to have reported for his duties with the management consequent to being on unauthorized leave w.e.f. I.D No.319/06 PAGE NO.40 OF 46 11.10.1999 till 23.10.1999 (24.10.1999 being Sunday) and when he has alleged to have not been allowed to resume his duties with the management by the management thereby necessitating the instant reference dated 14.06.2000 by the appropriate Government in respect of the instant dispute to this Court for adjudication which is not far removed from the date of the alleged dispute viz. 25.10.1999 thereby indicating that the workman has shown due diligence in pursuing the due course of redressal of his grievances against the management with effect from the date of the alleged dispute viz. 25.10.1999 in the instant case. Admittedly, in view of the admission between the parties to the effect that the workman has been in the continuous employment with the management w.e.f. 01.01.1994 till 11.10.1999/25.10.1999 when he is alleged to have abandoned his employment with the management on its part and his services are alleged to have been terminated by the management on the part of the workman respectively, which case of the management has been found to have been not proved/disallowed vide my findings on the issue no. 1, as above, it is thus, seen that the workman has completed 240 days of service with the management in the year preceding the date of his alleged termination of service viz. 25.10.1999 in the instant case as required under the provisions of Section 25 B of the Industrial Disputes Act, 1947 (as amended upto date) thereby entitling him to the protection of the provisions of Section 25 F of the Industrial Disputes Act, 1947 (as amended upto I.D No.319/06 PAGE NO.41 OF 46 date) which have admittedly not been complied by the management, on record, in view of its case of the workman having allegedly abandoned his employment with the management w.e.f. 11.10.1999 and accordingly, the termination of the services of the workman on 25.10.1999 as alleged by him is held to be illegal.
Now, coming to the relief to be awarded to the workman. It is seen from the record that though it has been argued on behalf of the management that it had stated in its written statement in no uncertain terms that in case the workman still wants to work with the management, he may be directed to report for duty at the factory of the management situated at 223, Phase IV, Gurgaon, Haryana with the condition that he gives an assurance in writing that he will not remain absent unauthorizedly in future and that the workman by not filing his rejoinder to the written statement of the management had not taken up the offer of the management to resume his duties with the management and as such he is not entitled to the relief of reinstatement with backwages, it is further seen from the record that during the pendency of the instant proceedings vide order dated 01.09.2009 the respective contentions of the parties viz. the alleged willingness of the management to take back the workman on duty and of the workman of his willing to join duties with the management have been taken note of and the workman directed to join the duties with the management w.e.f. 02.09.2009 onwards at 223, Phase IV, Udyog Vihar, Gurgaon, Haryana I.D No.319/06 PAGE NO.42 OF 46 at 09:30A.M. However, pursuant to the said order passed by this court, on record, it is seen from the record that the management has moved an application dated 04.09.2009 on 05.09.2009, on record, contending that the workman has not reported for duty with the management at its factory at Gurgaon, Haryana as directed by this court alongwith copies of the telegrams dated 02.09.2009 and 05.09.2009 allegedly sent by the management to this court in respect of the said contention, whereas the workman has moved an application dated 18.09.2009, on record, to the effect that consequent to the direction of this court to him to join duties with the management dated 01.09.2009, he had visited to the factory of the management but the management had not given any response nor did it mark his attendance nor gave him any work; that the workman had been daily visiting to the management in this regard and returning back to his home, with the prayer that the management be directed to allow the workman to join his duties with the management and to provide work to him. It is thus seen from the record that it cannot be said conclusively and irrefutably that the workman is not inclined to resume his duties with the management consequent to the offer made by the management to him in this regard vide its written statement, as above said, on record, especially in view of the factum of the management having admittedly changed the location of its factory from 3/10, IIIrd Floor, Kirti Nagar Industrial Area, New Delhi110015 at the relevant time when the alleged industrial dispute is alleged to have I.D No.319/06 PAGE NO.43 OF 46 arisen between the parties viz. 11.10.1999/25.10.1999 to 223, Phase IV, Gurgaon, Haryana as mentioned by the management in its written statement, on record and no evidence having come on record that the workman has not responded to the offer of the management to resume duties with it at its factory/premises situated at the said Gurgaon address, as above said, apart from the contention of the management that the workman has not filed any rejoinder to the written statement of the management in this regard, which I find from the record has been dealt with vide the provisions of order dated 01.09.2009 of this court in respect of the respective contention of the parties in this regard, as above said,on record, as also in view of the testimony of the workman vide his cross examination on behalf of the management as WW1 in workman evidence dated 19.05.2005, on record, wherein he states that it was wrong to suggest that he was called upon to report for duty; that it was correct that the management had only one factory and the same is closed but now the management is working at Gurgaon; that he was never called to report for duty at Gurgaon; that it was wrong to suggest that even in the court he was told/directed to join duty in Gurgaon; that it was wrong to suggest that he did not went to the factory for work since 10.10.1999. It is further seen from the record that it has neither been even averred or any evidence has come on record that the workman has reached the age of superannuation or is anywhere nearing the age of superannuation. In view of the above record, I find I.D No.319/06 PAGE NO.44 OF 46 that the workman has not exhibited any such conduct, on record, which would disentitle him to the relief of reinstatement in service.
Now, coming to the entitlement of the workman to the relief of backwages. It is seen from the record that though it has been argued on behalf of the management that the workman has admitted that he has not made efforts to secure any employment consequent to the alleged termination of his services as also that he has admitted that the monthly expenses on his household/family comprising of himself, his wife and four children are Rupees four to five thousand as also he has not alleged specifically that he has been unemployed from the date of the alleged termination of his services and as such it cannot be said that he is not gainfully employed, however, I find from the record that no evidence has been led on the part of the management in respect of the alleged gainful employment of the workman pursuant to the date of his alleged termination of service, onus of proving of which was admittedly upon the management, so much so that it has not even been alleged on the part of the management in its written statement, on record, that the workman is gainfully employed from the date of his alleged termination of services on the part of the management or even by way of cross examination of the workman as WW1 in workman evidence or by way of evidence of its MW1 Sh. Vivek Mago, Director of the management by way of his affidavits by way of evidence Exts. MW1/A and MW1/B in the management evidence , on record. I.D No.319/06 PAGE NO.45 OF 46
Admittedly, the workman and his family are at least entitled to subsistence and are not expected to lead a life of vagrancy and destitution and accordingly an alleged income of an amount of Rupees Four to Five Thousand per month which the workman is allegedly spending on the monthly expenses of himself and his family, his house belonging to him, it is felt in view of my above observations and findings would not bring the workman in the category of gainfully employed so as to be disentitled to his claim of back wages for the period with effect from the date of termination of his services on the part of the management till the date of passing of award.
In view of my above observations and findings, it is felt appropriate that the relief of reinstatement in service, however, along with 50% of back wages and continuity of service be awarded to the workman against the management since it cannot be held that the workman has remained totally unemployed during the period w.e.f. the date of termination of his services on the part of the management as alleged till the date of passing of award.
Reference is answered accordingly and the Award is passed. The Ahlmad is directed to send the Six copies of this Award to the appropriate Government. The file be consigned to the record room.
Announced in the open court (CHANDRA GUPTA)
on 31.10.2012 Presiding Officer Labour CourtX
Karkardooma Courts, Delhi.
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