Delhi District Court
Smt. Kamlesh vs . M/S. Guru Designs Did No. 185/07 on 14 December, 2012
Smt. Kamlesh Vs. M/s. Guru Designs DID No. 185/07
IN THE COURT OF DR. P S MALIK THE PRESIDING OFFICER
IN
LABOUR COURT XI, KARKARDOOMA COURTS, DELHI
Computer ID No. 02402C0560222007
Type of Case Direct Industrial Dispute
Date of Institution 17.08.2007
Evidence concluded on 29.02.2012
Final Arguments heard on 30.11.2012
Date of Award 14.12.2012
WORKMAN Vs. MANAGEMENT
Smt. Kamlesh W/o Late Sh. Sh. Manish Gupta and Ms. Rita
Gajender Kumar, C/o Central Gupta M/s. Guru Designs, 23 / 12,
News Agency And Its Unit's East Punjabi Bagh, New Delhi -
Workers Union, S - 221 / 115, 26 and also at 2/8, East Punjabi
Vishnu Garden, Khayala, New Bagh, New Delhi - 26.
Delhi.
PRESENT:
None for the parties.
AWARD :-
1. The worker Smt. Kamlesh filed this direct industrial dispute before this court U/S
10 (4A) of the Industrial Disputes Act against the Management M/s. Guru Designs.
2. As per her claim, the claimant / worker Smt. K|amlesh was employed by an earlier
establishment of the respondent / Management M/s. Pinku Overseas
Traders as a 'Thread Cutter' since 01.10.1996, but no appointment letter was given to her at that time. Subsequently this Management was AWARD Page 1 of 15 Smt. Kamlesh Vs. M/s. Guru Designs DID No. 185/07 alleged to have transferred this worker to M/s. Guru Designs on 15.04.2002. Since then this worker was working in the Management M/s. Guru Designs. She claimed that on 05.05.2007 she received an injury and remained absent from her duties from 07.05.2007 to 04.07.2007. When she tried to resume her duties on 05.07.2007 a medical certificate was required from her. On 07.07.2007 she procured a medical certificate, the Management was alleged to have kept that certificate but turned her back without allowing her resumption of service. Thereafter an industrial dispute was raised by her before this court for adjudication.
3. The Management M/s. Guru Designs filed its reply / written statement. It was stated that the worker was engaged as a 'Helper / Thread Cutter' on 15.04.2002 at a monthly salary of Rs.2670/. As per the Management the worker expressed her intention on 13.07.2007 to conclude her employment and tendered a resignation. The Management specifically pleaded not to have terminated her services. Any relation to M/s. Pinku Overseas Traders was specifically deneid by this respondent / Management. It was pleaded by the respondent that M/s. Guru Designs was a partnership firm which came into existence in February, 2002 with Smt. Rita Gupta as one of the partners. The respondent denied any right of the worker to claim benefits under the Industrial Disputes Act.
4. In this background of pleadings of the parties, the Ld. Predecessor vide his orders dated 03.07.2008 framed the following issues :
1. Whether the worklady has herself tendered her resignation on 13.07.2007? OPM.
2. Whether the services of the worklady were terminated illegally and / or unjustifiably by the AWARD Page 2 of 15 Smt. Kamlesh Vs. M/s. Guru Designs DID No. 185/07 Management and if so, to what relief was she entitled? OPM.
5. After the issues the worker Smt. Kamlesh examined her as WW1 and almost reiterated her claim in material aspects. She relied upon nine documents. Document Ex. WW1/1 is the photocopy of an ESI record. Document Ex. WW1/2 is a demand notice. Ex. WW1/3 and Ex. WW1/4 are the postal receipts. Ex. WW1/5 are some photocopies relating to M/s. Pinku Overseas Traders. Ex. WW1/6 is a photocopy of Form 6. Ex. WW1/7 is a photocopy of some wages register of M/s. Guru Designs. Ex. WW1/8 is the photocopy of wages register of M/s. Pinku Overseas Traders. Document Ex. WW1/9 is the original ESI card of the worker.
6. During her cross - examination she again made a point that initially she was appointed in M/s. Pinku Overseas Traders and thereafter was transferred to M/s. Guru Designs. An application Mark A was shown to her. She stated that she did never apply for appointment in M/s. Guru Designs. She was merely transferred from the erstwhile establishment. She denied her signatures on Mark A but admited it on Mark B which is a document of M/s. Guru Designs. Purportedly this document Mark B which was subsequently exhibited as Ex. WW1/M1x is an appointment letter of this worker Smt. Kamlesh with M/s. Guru Designs. The date of appointment is 15.04.2002. She had tried to explain that her signatures were obtained at the time of her appointment. Ex. WW1/9 is an admitted document which is a card issued by ESIC to this worker. PF slips are Ex. WW1/10. She admitted a document Ex. WW1/M2x to have been given to the respondent / Management on13.07.2007. This document is purportedly a resignation letter. Thereafter a document Ex. WW1/M3x was put to this witness. This document Ex. WW1/3x purports to be a receipt of a settlement AWARD Page 3 of 15 Smt. Kamlesh Vs. M/s. Guru Designs DID No. 185/07 amount but the worker had denied her signatures at point A on this document Ex. WW1/M3x. Two vouchers Ex. WW1/M4x and Ex. WW1/M5x were put to this witness and she admitted her signatures at point A on both of them. She denied her signatures on a document Ex. WW1/M6x which appears to be a document containing the details of the amounts given to this worker through these two vouchers Ex. WW1/M4x and Ex. WW1/M5x. She admitted that there is no document on record to show her medical leave from 05.05.2007 to 04.07.2007. She tried to explain that the same was given to the Management.
7. Thereafter the Management examined one Sh. K.C. Virmani who is one of the Partners of the Management. He exhibited his partnership deed as Ex. MW1/1, the biodata of the worker as Ex. MW1/2. He also relied upon some document which was relied upon by the worker as Mark A. He also relied upon the purported resignation of the worker dated 13.07.2007 as Ex. WW1/M1x. He also relied upon the documents put to the worker during her cross - examination ranging from Ex. WW1/M1x toEx. WW1/M6x. A photocopy of immigration of other partner Smt. Rita Gupta was also placed on record as Ex. MW1/3. Two more documents Ex. MW1/4 and Ex. MW1/5 were also placed on record to show that the |ESIC and PF departments were intimated regarding the closure of the Management's establishment. This witness admitted that on 15.04.2002 worker was appointed a 'Dhaga Cutter' in the Management M/s. Guru Designs. All other documents were made by this witness in the line taken by the Management in its written statement. ISSUE NO. 1 & 2 :
8. In these issues this court has to adjudicate upon the factum if the worker had herself tendered her resignation on 13.07.2007 and if the services of the worker were terminated illegally and unjustifiably or AWARD Page 4 of 15 Smt. Kamlesh Vs. M/s. Guru Designs DID No. 185/07 she had settled her accounts with the Management no. 2 fully and finally.
9. Two cases were filed before this court for the same relief and against the same group of Managements. In addition to this case filed by the claimant Smt. Kamlesh against the two Managements i.e. M/s. Guru Designs and M/s. Pinku Overseas, one Sh. Ram Girish also filed a Direct Industrial Dispute no. 47/07 against theree Managements i.e. M/s. S.M. International, M/s. Guru Designs and M/s. Pinku Overseas. But subsequently, as it was done in this case also, M/s. Pinku Overseas was dropped from the array of the respondents /Managements. This was a development very similar to the present case.
10. Because both these cases were pending trial before this court. They involved a very similar dispute and their evidence were recorded together, therefore, this court deems it fit to take a judicial notice of the material available on both the files.
11. The case of the worker in her claim is that in the year 2007 she did not attend her duties in the month of May and June, 2007. Thereafter she tried to resume her services on 04.07.2007 but she was not allowed to do the same. She tendered her medical certificate to the Management. But despite that the Management did not allow her to continue with the services. But during the course of evidence the Management put a document Ex. WW1/M2x to this claimant / worker. This is a resignation letter which purportedly bears the signatures of this worker at point A. The signatures have been admitted by the worker and she also admitted that this document was tendered by her to the Management on 13.07.2007.
12. On behalf of M/s. Guru Designs one Dr. K.C. Virmani was examined.
He was a partner with the wife and daughter of one Sh. Munish Kumar Gupta. As per this witness MW1 this firm was working in the AWARD Page 5 of 15 Smt. Kamlesh Vs. M/s. Guru Designs DID No. 185/07 name of M/s. Guru Designs. This Sh. Munish Kumar Gupta had entered into a partnership agreement with Sh. Praveen Kumar a witness in the connected case no. 47/07 as the later stated on oath before the court. One firm was running in the name of wife and daughter of Sh. Munish Kumar Gupta and the other firm was in his own name. The partnership deed of the second firm M/s. S.M. International was not produced before this court. Therefore, it cannot be ascertained as to who else is a partner in that firm. Both of these two firms i.e. M/s. Guru Designs and M/s. S.M. International are being run by the members of the same family. What is the more significant just to create a partnership without incurring loss, he had introduced his minor daughter in M/s. Guru Designs. A minor cannot do business. Therefore, this partnership appears to be a tool to achieve some objectives other than those appearing on the face of Ex. MW1/1. Both these concerns i.e. M/s. Guru Designs and M/s. S. M. International in addition to being run by the same family appear to have been using the same common stationery as were relied upon by the workman in the form of documents Mark A to Mark D in the connected case no. 47/07.
13. The connected file no. 47/07 has been perused by the court. The original authority letter filed before this court on 25.09.2007. In the connected case it was filed on 19.04.2007 under the signatures of Sh. Munish Kumar Gupta. On that date the authority letter on behalf of M/s. S.M. International was filed under the signatures of Sh. Munish Kumar Gupta. Although it is not a legal bar but a significant circumstance in going through the details of these two connected cases that both these Managements were represented by the same ld. counsel. Both the witnesses though from different Managements yet were identified by the same ld. counsel before the Oath Commissioner at the time of preparing their evidence affidavits.
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14. In addition to these observations as aforesaid, these two Managements are not protected by any legal cover as the two companies would have been protected under the cover of a 'corporate veil'. Therefore, this court holds that for the purpose of this adjudication both these Management are one and the same entity and their distinction is only for the name sake.
15. The relationship in the nature of 'an employer and an employee' has been admitted by the Management no. 2 through its admissions in pleadings and evidence both. Hence this admission coupled with the observation of the court shows that M/s. Guru Designs and M/s. S.M. International in the connected case were merely the instrumentalities of Sh. Munish Kumar Gupta who was the central figure. It is Sh. Munish Kumar Gupta who is the real employer. Nothing has been said or proved by the worker regarding the Management M/s. Pinku Overseas. Therefore, nothing is observed about that Management. It is hereby held that the worker has been able to prove the existence of her relationship in the nature of 'an employer and an employee' to the Management.
16. Two cases were filed before this court for the same relief and against the same group of Managements. In addition to this case filed by the claimant Smt. Kamlesh against the two Managements i.e. M/s. Guru Designs and M/s. Pinku Overseas, one Sh. Ram Girish also filed a Direct Industrial Dispute no. 47/07 against theree Managements i.e. M/s. S.M. International, M/s. Guru Designs and M/s. Pinku Overseas. But subsequently, as it was done in this case also, M/s. Pinku Overseas was dropped from the array of the respondents /Managements. This was a development very similar to the present case.
17. Because both these cases were pending trial before this court and their evidence were recorded together, therefore, this court deems it fit to AWARD Page 7 of 15 Smt. Kamlesh Vs. M/s. Guru Designs DID No. 185/07 take a judicial notice of the material available on both the files.
18. In both these cases, the Management M/s. Guru Designs had relied upon a set of documents i.e. a resignation, a receipt / acknowledgment, two vouchers What is startling is the similarity of details and appearance between these two sets of documents in both of these connected cases. In the present case titled as Smt. Kamlesh Vs. M/s. Guru Designs the resignation letter bears the date 13.07.2007 and in the case of Sh. Ram Girish Vs. M/s. Guru Designs etc. it bears a date of 31.03.2006. Both these documents are identical in appearance and details except a few personal nouns. This court at the time of pronouncement of judgments into these two cases had placed these sets of documents side by side and compared them. Without placing these two case files and the documents in their side by side, a good and proper comparison cannot be made. This is a pre - requisite to study these cases comprehensively.
19. This court makes the following observations keeping in view that a court is always an 'Expert of Experts'. Many handwriting experts, ballistic experts, medical experts and the experts from various fields come to the courts and give their opinions regarding the similarity and dissimilarity of the exhibits placed in evidence. It is the court which on an objective criterion examines them and gives finality to a particular piece of evidence. This court is using the same sense and power in these present two cases also.
20. The set of these four five documents containing resignation letter, receipt / settlement, two vouchers and full and final settlement statements are identical in both these cases. But in the temporal space purportedly these are separated by more than one year. By no stretch of imagination such a deep rooted similarity can be inculcated between two sets of documents AWARD Page 8 of 15 Smt. Kamlesh Vs. M/s. Guru Designs DID No. 185/07 until and unless both are prepared simultaneously in the same sitting. The proverb 'simultaneous' is given a special force in this sentence.
21. Such simultaneous preparation of two sets of documents is possible only in a circumstance when a poor and vulnerable workman approaches the Management for a job and the Management using its powers and position got some papers signed by him or her with the contents left blank. These papers thereafter are supplied contents according to the needs of the Management.
22. As a matter of precaution this court gives a test to this observation (in the previous paragraph) if it is excessive in force or is going to affect the Management adversely without any ground of its culpability. This court considers a fictitious scenario that this stand by the Management was genuine and bonafide. Under such fictitious circumstances, the Management would have given an intimation of these resignations and payments of the settlement amounts to the appropriate authorities in the Government because the same is compulsory under the provisions of Rule 58 (4) of the Industrial Disputes Rules. Under these rules, if any settlement is arrived at between the parties at a place other than the office of a Conciliation Officer, then it has to be submitted to the office of the Labour Commissioner so that its propriety and justifiability could be examined. But in the present case there is neither a pleading nor an evidence that the Management had ever taken any step in compliance of this Rule. It appears to have been working to hide this settlement from the eyes of law. In this settlement there is a tinge of malafide; a tinge of high handedness; and a tinge of impropriety. Therefore, the observation of this court that either the settlement between the parties was sham and bogus or the documents purporting to show such a settlement were forged and fabricated is well founded.
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23. Consequent to this observation, this court using its powers U/S 11 of the Industrial Disputes Act directs that the documents prepared and put by the Management to show any settlement between the parties stand repudiated. And hence there is no need to look into these documents.
24. After raising a curtain of the repudiated documents from the face of the Management, its real nature is before the court. In reality there is no settlement or resignation from the services. Hence in view of this court the service of the worker was terminated in a way which rendered her dissatisfied.
25. Now the court proceeds to look into the other aspects of this case. As it has been laid down by the Hon'ble Superior Courts (SUPRA) primarily it was for the workman to show the existence of the relationship between the Management and him in the nature of 'an employer and an employee'. This was admitted by the Management. After this admission, the 'onus to prove' was shifted as per the mandate of provisions of Section 106 the Indian Evidence Act. The resignation / Management ought to have brought the entire documentation (certainly the genuine ones) regarding this workman before the court. It ought to have brought the wages register, the attendance register and complete record of ESIC and PF so that all other aspects of the case would have been properly adjudicated upon. But the Management did not bring the said documents despite opportunities given to it. This paves the way for this court to draw a presumption U/S 114 Illustration (g) of the Indian Evidence Act that had such an evidence been produced on record by the Management, it would have gone against the stand taken by it. Except this fictitious record, the Management has shown nothing on the point of initial appointment. The same remained shrouded in doubt because there was an ambiguity in the work fields of these Managements. AWARD Page 10 of 15
Smt. Kamlesh Vs. M/s. Guru Designs DID No. 185/07 Cumulatively this court has no legal option other than to accept the pleadings of the worker that she was appointed by the Management on 15.04.2002 under the auspicies of M/s. Guru Designs.
26. In the pleadings the Management denied the statements of the worker and her monthly salary of Rs.2670/ per month. But no independent proof was produced before the court to show that it was Rs.2670/ per month. Therefore, this court holds that the workman be deemed to have been receiving the wages as per the Minimum Wages Act prevailing at the relevant point of time in her employment with the Management.
27. The workman pleaded her termination on 07.07.2007, The concerned record e.g. the returns to the ESI and PF were under the control of the Management. It was never produced before the court. The Management relied upon some documents which this court has already declined to receive in evidence. Hence again this court has no other legal alternative than to presume that the Management had accepted the pleadings of the worker and the date of termination of service as 07.07.2007. (Although the position of Management gives worker a benefit of 76 more days of working).
28. The last element is the mode of termination of service. The Management stated that it was a voluntary resignation, and the worker had admitted it. Nonetheless this court found the stand of the Management as malafide being supported by the documents of obscure nature. Therefore, there is no legal hurdle in presuming that the services of the workman was terminated in an environment of deception and skulduggery which constitute retrenchment within the meaning of Section 2 (oo) of the Industrial Disputes Act which is reproduced below : AWARD Page 11 of 15 Smt. Kamlesh Vs. M/s. Guru Designs DID No. 185/07 Section 2 (oo) of the Industrial Disputes Act : "Retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include
(a) Voluntary retirement of the workman; or
(b) retirement of the workman on employment between the employer and the workman concerned contains a stipulation in that behalf;
or (bb) termination of the service of the workman as a result of the non -
renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill - health.
29. The Hon'ble Supreme Court in the case Anoop Sharma Vs. Executive Engineer, Public Heath Division No. 1 Panipat (Haryana) (2010) 5 Supreme Court Cases 497 has held that : "We have no hesitation to hold that termination of service of an employee by way of retrenchment without complying with the requirement of giving one month's notice or pay in lieu thereof and compensation in terms of Section 25 F (a) and (b) has the effect of rendering the action of employer as nullity and the employee is entitled to continue in employment as if his service was not terminated."
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30. In Krishna Bahadur Vs. Puran Theater, 2004 (103) FLR 146 SC., the Hon'ble Court held that the requirement of Section 25 F (b) the Industrial Disputes Act was imperative. The contravention thereof would render the retrenchment. In the present case there is violation of not only Section 25 F (a) & (b) the Industrial Disputes Act but of Rule 77 the Industrial Disputes Rules also.
31. Following the aforesaid laws laid down by the Hon'ble Supreme Court of India in Anoop Sharma (Supra) and Krishna Bahadur (Supra) this court also holds that the retrenchment of the workman in the present matter was wrong. The impugned retrenchment of the workman by the respondent / Management was legally defective.
RELIEF :
32. Hence this court is of the view that the termination of services of the worker Smt. Kamlesh was bad in law. This court is also of the view that this wrong done to the claimant can only be compensated by awarding her an appropriate amount of compensation. As this court has already held that her service period was from 15.04.2002 to 07.07.2007 and her last drawn wages as in accordance with the Minimum Wages Act prevailing at that time. She would have received an approximate amount of Rs.9,450/ at the time of her retrenchment. This is apart from her gratuity and other consequential benefits. It ought to have been given to her 07.07.2007. But it was not given so.
33. This court is of the view that the payable compensation amount should be determined after having regard to the date of appointment, the date of termination, the total length of employment of the worker, her AWARD Page 13 of 15 Smt. Kamlesh Vs. M/s. Guru Designs DID No. 185/07 last drawn salary, the present value of rupees as compared to that on the date of retrenchment (i.e. with special effect of inflation in economy and the devaluation of money) and the circumstances in which he was retrenched.
34. At the time of retrenchment of the claimant from the services, she would have got an amount of Rs.9,450/ as compensation in accordance with the language of Section 25 F of the Industrial Disputes Act. Keeping in view the total length of employment of the worker, her last drawn salary, the present value of rupees as compared to that on the date of retrenchment (i.e. with special effect of inflation in economy and the devaluation of money) this amount of Rs.9,450/ would have grown to double of its original amount. Therefore, this amount of Rs.9,450/ would have grown double as Rs.18,900/. Hence this court holds the claimant entitled to receive a compensation in the sum of Rs.18,900/ under the provisions of Section 25 F of the Industrial Disputes Act.
35. This court further deems it fit to allow the claimant / worker a sum of Rs.
30,000/ as damages for his illegal retrenchment. In addition to this amount a sum of Rs.1100/ as litigation expenses is also awarded in favour of the claimant / worker.
36. A copy of this award be sent to the office of the concerned Dy. Labour Commissioner for necessary action.
37. The original documents be returned against acknowledgment back to the party which has filed them and further subject to the filing of the certified copies of the same.
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38. File be consigned to the Record Room after completing due formalities. ANNOUNCED IN THE OPEN COURT ON 14.12.2012.
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