Delhi District Court
Through: Sh. A.K. Shukla vs M/S. A To Z Saree Creation Pvt. Ltd on 27 September, 2022
IN THE COURT OF SHRI ANKIT SINGLA
PRESIDING OFFICER : LABOUR COURT - X
ROUSE AVENUE COURTS : NEW DELHI
LIR No. 1101/17
Sh. Amit Tiwari
S/o Sh. Mohan Lal Tiwari
R/o 149, Kucha Ghasi Ram,
Chandni Chowk,
Delhi - 110 006.
Through: Sh. A.K. Shukla, Chief Secretary
Akhil Bhartiya Karamchari Trade
Union (Regd. No. 4566)
Chamber No. F-507, 5th Floor,
Karkardooma Court,
Delhi - 110 032.
... Workman
Versus
M/s. A to Z Saree Creation Pvt. Ltd.
Through its Owners Md. Sabbeer, Md. Rahees
and Md. Arshad
875-876, Opposite Katra Anup Singh,
Nai Sarak, Chandni Chowk,
Delhi - 110 006.
... Management
Date of institution of the case : 21.04.2017
Date of passing the Award : 27.09.2022
A W A R D:
1. The Deputy Labour Commissioner, Delhi exercising his powers
conferred by virtue of Section 10(1)(c) and 12(5) of Industrial Dispute Act, 1947 read
with Notification No.F-1/31/616/ESTT./2008/7458 dated 03.03.2009 had sent the
following reference dated 29.03.2017 to this Court for determination:
"Whether the services of workman Sh. Amit Tiwari S/o Sh.
Mohan Lal Tiwari have been terminated illegally and / or
unjustifiably by the management; if so, to what relief is he
entitled and what directions are necessary in the respect?"
2. Pursuant to the service of notice of reference, the workman had appeared
and filed his statement of claim, averring therein, that he was working with the
management since 01.07.2010 and his last drawn salary was Rs. 13,310/- per month.
It is alleged by the workman in the statement of claim that the management was not
providing him the statutory facilities like appointment letter, attendance register,
earned leave, casual leave, overtime, bonus, ESI etc. to him. It is also alleged that the
management had stopped making payment of his wages and when, he demanded his
earned money, the management forced him to withdraw provident fund. It is further
alleged that when the workman again demanded his earned money, he was made to
sign on blank papers, vouchers and he was removed from the job on 31.03.2016. It is
also alleged by the workman in the statement of claim that he was also threaten that if
he was ever seen in the vicinity of the office of management, a false case would be
imposed upon him.
3. Thereafter, the workman had filed a complaint with police on
04.08.2016. On same date, he also sent a demand notice to the management through
his union against his illegal termination and for providing the statutory facilities, but,
no reply was received from the management. He also made a complaint to Assistant
Labour Commissioner through his union, but, the management neither reinstated him
nor paid the due wages. It is also averred that workman could not get any job despite
his best efforts. It is, therefore, prayed in the statement of claim that since, the act of
management in terminating the services of the workman is unlawful, the
management may be directed to reinstate the workman in his services with full back
wages and consequential benefits.
4. Notice of this statement of claim was sent to the management which was
also duly served upon it and management had also appeared to contest the claim of
the workman on merits and had filed its written statement on record, wherein, it had
stated that the workman has not come before the Court with clean hands and
mentioned the wrong facts in the statement of claim and is trying to misguide the
Court. It is stated that petitioner had worked with the management till 01.05.2015 and
he had left the services of the management himself by tendering his resignation
willfully on 01.05.2015. It is further claimed that on that day, all the dues of the
workman were cleared and workman had also withdrawn his provident fund by
filling a withdrawal form, wherein, he had mentioned his date of joining date and
date of resignation. In reply on merits, it is denied that workman had joined the duties
on 01.07.2010. It is claimed that the workman had joined the duties on 01.03.2011. It
is also denied that last drawn salary of the workman was Rs.13,310/- per month. It is
claimed that the workman is doing private builder job along with Mohd. Rahees as
partner and is earning handsome money. It is, therefore, submitted that present
proceedings has been initiated by the workman in order to extort money from the
management, therefore, it is prayed that the present claim may be rejected.
5. To this Written Statement filed by the Management, the workman had
also filed his rejoinder / replication, wherein, he had denied the contents of written
statement as wrong and had reiterated the contents of his statement of claim as
correct.
6. On the basis of pleadings of the parties, the Ld. Predecessor of this Court
vide his order dated 05.05.2018, was pleased to frame the following issues: -
1. Whether the claimant has resigned himself from the job from
01.05.2015 or his services have been terminated illegally and or
unjustifiably by the management? OPW
2. Relief.
7. In order to discharge the onus of issues, the workman himself had
appeared as witness and had filed affidavit which is exhibited as Ex. WW1/A,
wherein, he had reiterated the contents of his statement of claim on solemn
affirmation. He was cross-examined at length by the management. The detail of
cross-examination is not reproduced here in order to maintain brevity. The relevant
portion of cross-examination is proposed to be dealt with at the time of appreciation
of evidence.
8. Besides this, the workman has also placed a reliance on following
documents to prove his case: -
S. No. Name of Documents Exhibits
1 Appointment letter Ex. WW1/1
2. Complaint to the SHO, PS Chandni Chowk dated Ex. WW1/2
04.08.2016
3. Complaint made to the Labour Department dated Ex. WW1/3
08.08.2016
4. Failure report of the Labour Inspector dtd. 27.10.2016 Ex.WW1/4
5. Demand notice dated 04.08.2016 Ex. WW1/5
6. Postal receipt of the demand notice Ex. WW1/6
7. Statement of claim filed before the Conciliation Ex. WW1/7
Officer
9. The workman did not examine any other witness and therefore, the
matter was posted for management evidence. The management examined Sh. M.
Arshad, who is son of one of the director of the management as witness. He was
examined as MW-1. He filed his evidence by way of affidavit, which is Ex. MW1/1.
In his affidavit Ex. MW1/1, he reiterated averments made in written statement. He
was cross-examined at length. During his cross-examination, he remained firm on the
aspect that the workman had resigned himself from the services.
10. Besides this, the management had also placed on record, the following
documents to prove its case: -
S. No. Name of Documents Exhibits
1 Copy of Employees Provident Fund Scheme, 1952 Ex.MW1/A
2. Copy of Form 10-C for claiming withdrawal benefit Ex. MW1/B
3. Copy of resignation letter dated 01.05.2015 Ex. MW1/C
Thereafter, management's evidence was also closed and matter was
posted for final arguments.
11. Final arguments were heard and now, in the light of evidence available
on record and submissions made by the parties, my issue-wise findings are as under:
-
(i) ISSUE NO. 1:Whether the claimant has resigned himself from the job from 01.05.2015 or his services have been terminated illegally and or unjustifiably by the management? OPW: The onus to prove the claim that he was terminated illegally by the management was upon the claimant himself, whereas, the burden to prove the fact that claimant had resigned himself from the job on 01.05.2015 was upon the management. In order to discharge the rival claims, both the parties led their respective evidence. The workman himself appeared in the witness box and was examined as WW1. During his evidence, he reiterated the avernments made in the statement of claim and stated that the management orally terminated his services on 31.03.2016. But, during his cross-examination, the management confronted him with a resignation letter and he categorically admitted his signature on the said resignation letter. The said letter is exhibited as WW1 /M1. The said letter clearly reflects that the workman had resigned himself on 01.05.2015. The management also confronted the workman with a filled Employee Provident Fund withdrawal form Ex.WW1/M2 and he also admitted that vide said withdrawal form, he had withdrawn his complete provident fund amount. The Ex.WW1/M2 reflects not only that the workman had withdrawn the entire amount of his provident fund, but its contents corroborate the claim of the management that workman had resigned from the management on 01.05.2015.
(ii) The workman in his cross-examination has mentioned that his signatures are appearing on the resignation letter Ex.WW1/M1 as the management had obtained his signatures on some blank papers forcibly. Similarly, for his signature on EPF Ex.WW1/M2, he has stated that he was forced to fill the form and withdraw the EPF amount by the management.
(iii) Since, the oral claim of the workman that he was illegally terminated from the service has been controverted by the management with his resignation letter Ex. WW1/M1 and Employee Provident Fund form Ex.WW1/M2, where, it is clearly mentioned that he had resigned from the service on 01.05.2015, the onus was upon the workman to explain and to prove the circumstances, in which his signatures were taken forcibly on the aforementioned documents. Mere bald statement of the workman that he was forced to sign the resignation letter Ex.WW1/M1 and withdraw the EPF amount by the management is not sufficient to discharge the said burden. But, it has been observed that apart from mere bald statement, he has not adduced any credible evidence in this regard. Although, he has placed on record a copy of complaint Ex. WW1/2 addressed to SHO in this regard, but neither, any acknowledgement / receiving of police station is provided, nor the stamp of any police station is affixed on the said complaint, nor any other proof has been filed to show that it was ever sent by post or other means to police authorities. The said complaint is a typed copy and without any proof of sending the same to police authorities, no reliance can be placed on the same.
(iv) Further, it has been observed that as per workman, his signatures were forcibly obtained on 31.03.2016, but the complaint Ex. WW1/2 show that same is dated as 04.08.2016 i.e. precisely after five months three days from the date of incident. Even, if it is assumed for sake of arguments that the complaint Ex. WW1/2 was sent to SHO, then, also it was duty of workman to explain as to why, he kept quite for five months, when, his signatures were obtained forcibly on blank papers and on the resignation letter Ex. WW1/M1.
(v) Thus, it follows that neither any credible evidence could be produced by the workman nor any justifiable reason could be assigned by him as to why the Court should disbelieve the documentary evidence i.e. resignation letter Ex. WW1/M1, and EPF form Ex. WW1/M2 and believe his bald oral claim that he was forced to sign resignation letter Ex. WW1/M1, EPF form Ex. WW1/M2 and some other blank papers.
(vi) Further, it is also very important to note here that the workman had admittedly withdrawn his provident fund in year 2015, whereas, he was illegally terminated in 2016. If the workman was illegally terminated in 2016, then neither him, nor the management had any occasion or reason to write in provident withdrawal form Ex.WW1/, which was filled in 2015 that workman had resigned from the services of the management on 01.05.2015. The EPF form Ex.WW1/M2, thus, completely demolish the case of workman and gives additional assurance to the claim of the management that the workman had indeed resigned from the services in 2015 itself.
(vii) Further, it is not out of place to mention here that the contradictory claim has been made by the workman regarding reasons for withdrawal of provident funds. In statement of claim, he mentioned that when, he demanded his earned wages, then management forcefully got withdrawn his EPF money, but during his cross- examination, he changed his stance and assigned totally new reason for withdrawal, wherein, he stated that he had requested the management to advance loan to him, but the management had told him to withdraw his EPF funds to meet his requirements. This said changed reason for withdrawal of EPF amount has shattered the claim of the workman that he was terminated, when he had demanded his unpaid earned wages from the management.
(viii) Not only the above mentioned reasons, it is also important to know that the workman has also failed to examine any co-worker or customer of the management to show that he was working with the management even after 01.05.2015. Thus, it follows that the workman has only tried to wriggle out from his own signed resignation letter Ex.WW1/M1 and contents of provident fund form Ex.WW1/M2 by taking a false bald plea that at the time of his illegal termination on 31.03.2016, the management had taken his signature on several blank papers including one resignation letter.
(ix) The AR for the workman has contended that MW-1 had admitted during his cross-examination that management had made payment of earned wages for the period from January, 2016 to 31st March, 2016. He further submitted that if, the workman was not working with the management during the aforesaid period, then why, the management paid the wages for the said period.
(x) The ld. AR for the management had contended that the workman had filed a case under Delhi Shops and Establishment Act, and the management could not pursue the said case and an ex parte order was passed and therefore, the management was forced to pay the wages for three months. He stated that the management did not challenge the said order, as it would have cost more to the management to file an appeal than paying the amount ordered by the authority under Delhi Shops and Establishment Act, but that ex parte order cannot be considered as an admission of the management that workman was its employee, during January, 2016 to 31st March, 2016. The copy of order of authority which passed an ex parte order directing the management to pay three months salary has not been placed on record by either of the party, however, the said ex parte order can neither operate as admission nor res judicata as it is admitted in cross-examination by the workman that the said order was passed by Labour Commissioner and not by any Civil Court. Furthermore, it has been observed that workman did not disclose in his statement of claim that he had already received the wages for period between 01.01.2016 to 31.03.2016. Rather, in his statement of claim, he prayed for earned wages by hiding the fact that he had already received the said amount by filing separate case under Delhi Shops and Establishment Act before the Labour Commissioner. No explanation were given by the workman as to why he did not disclose in his statement of claim that he had already received the wages for period between 01.01.2016 to 31.03.2016.
(xi) In light of above discussion, it has to be seen that documentary evidence relied upon by the management i.e. resignation letter Ex.WW1/M1 and Ex.WW1/M2 is pitted against the bald oral testimony of the workman, which is not only inconsistent, but also appears to be incredible. Thus, this Court has no hesitation to hold that the balance of probabilities are in favour of the management. Accordingly, this issue is decided against the workman and in favour of the management.
(xii) ISSUE NO. 2- Relief: In view of my findings to Issue No. 1, the statement of claim as filed by the workman is dismissed being devoid of any merits.
12. Award is accordingly passed. Reference stands answered in aforesaid terms. Copy of award be sent to the Labour Commissioner for publication. File be consigned to record room. Digitally signed ANKIT by ANKIT ANNOUNCED IN OPEN COURT SINGLA SINGLA Date: 2022.09.27 on 27th Day of September, 2022 16:21:15 +0530 (Ankit Singla) Presiding Officer, Labour Court-X Rouse Avenue Courts, New Delhi