Delhi District Court
Sh. Kamlapati And Ors vs . on 3 March, 2022
IN THE COURT OF SH. JITENDRA KUMAR MISHRA: PRESIDING
OFFICER, INDUSTRIAL TRIBUNAL-I, ROUSE AVENUE DISTRICT
COURTS , NEW DELHI.
In the matter of:
CC no. 307/18
Sh. Kamlapati and ors.
C/o 203, Laxman Palace,
19 Veer Savarkar Block
Delhi-92 .......... Workmen.
Vs.
The Management of
M/s Moets Bar B Que
50 Defence Colony Market
New Delhi ......... Management.
Date of institution : 26.05.2018
Date of reserving judgment : 17.02.2022
Date of judgment : 03.03.2022
JUDGMENT
1. Present application/complaint U/s 33-A of the Industrial Dispute Act has been filed by the workmen wherein it is alleged that management is running a multi cuisine restaurant and catering in the vicinity of capital for the last several years and had employed about more than 120 workmen for different categories of hotel and restaurant for running the business. It is further claimed that management was earning huge income from the sale of food and beverage in restaurant and Outdoor catering services manufactured CC no. 307/18 Kamlapati and ors Vs. M/s Moets Bar B que page no. 1 /15 by employees of the restaurant but is not paying minimum wages prescribed by Govt. of NCT of Delhi w.e.f 03.03.2017.
(a) The workmen through their union had served a notice dated 09.05.2017 to the management demanding the same and thereafter, moved a complaint dated 15.06.2017 to the Labour Department for non payment of minimum wages.
(b) It is further claimed that due to the statutory demand to harass the workmen, the management put the two floors of the restaurant under renovation and when the workmen protested against putting the two floors on renovation having huge sale in season, the management entered into a settlement with the unit union Officer bearers agreeing to transfer the kitchen staff of the above two floors to 17 Babu Park, Kotla Mubarakpur, (South Extension), New Delhi.
(c) Management has been making payment of Dearness allowance at the rate of 2/- per point as per the increase and decease in the price index, Delhi twice in a year in the month of January and July for the last several years payable in the wages of January and July twice a year.
CC no. 307/18 Kamlapati and ors Vs. M/s Moets Bar B que page no. 2 /15
(d) Some workmen were being paid a part of wages in cash every month ranging from Rs.400/- to Rs. 2000/- per month without maintaining any record.
(e) Management had been providing the workmen with Annual Increment @ of Rs. 35/- to each and every employee for the last several years.
(f) Management has been making payment of overtime wages to the workers for outdoor catering at fix rate every month because the workers deputed for outdoor category had to perform duty for unlimited time as per the catering service.
(g) Management has been levying service charge on the food and beverage bill @ Rs.100/- and to disburse the same among the workers every month as per the settled point for each category of workmen.
(h) Management had taken duty from the workmen on Holi Festival, 2017, but did not make them payment of over time wages to the CC no. 307/18 Kamlapati and ors Vs. M/s Moets Bar B que page no. 3 /15 workmen who performed duty on the eve of Holi festival.
(i) Management has put the restaurant under maintenance without any notice, earned wages, notice, pay, charge-sheet, enquiry and legal dues and thus terminated the services of the workmen including the workman w.e.f 07.3.2018.
(j) Termination of services of the workmen is illegal, unjustified and an act of unfair labour practice of the management. The termination is also against the mandatory provisions of Section 25-F of the ID Act, 1947.
Hence, it is prayed that workmen are entitled for reinstatement in service with continuity of service and full back wages along with all consequential benefits in favour of the workmen and against the management.
2. Reply to the application has been filed on behalf of management wherein it is submitted that management duly served the notices dated 27.01.2018 and 05.03.2018 to the workmen due to the closure of the establishment. It is further submitted that CC no. 307/18 Kamlapati and ors Vs. M/s Moets Bar B que page no. 4 /15 management had not terminated any employee. It is further submitted that despite of the closure of the establishment due to sealing, the management had paid all of its employees for nearly three months even against no service rendered by them.
3. In rejoinder, the workmen have denied all such material facts. However, the workmen have not disputed that the restaurant of the management has been closed due to the report of Monitoring Committee appointed by the Supreme Court.
4. Vide order dated 07.12.2018, my ld. Predecessor framed following issues.
a) Whether the complaint case under Section 33A ID Act, 1947 is maintainable?........ OPW
b) Relief.
5. To prove their case, workmen have examined Sh. Kamlapati Pandey as WW-1 who tendered his evidence by way of affidavit Ex. WW-1/A. He has also relied upon documents Ex. WW-1/1 to Ex. WW-1/4.
a) Ex. WW/1 is the copy of notice dated 09.05.2017; CC no. 307/18 Kamlapati and ors Vs. M/s Moets Bar B que page no. 5 /15
b) Ex. WW1/2 is the complaint dated 15.06.2017 made to the concerned Assistant Labour Commissioner;
c) Ex. WW1/3 is the copy of settlement;
d) Ex WW1/4(colly) is the copy written by union to the Assistant Labour Commissioner dated 07.03.2018, list of workmen, letter dated 04.05.2018 of the Joint Labour Commissioner(District South);
WW-1 was cross-examined on behalf of management.
6. WW-2 and WW-3 have tendered their affidavits in evidence Ex. WW-2/A and Ex. WW-3/A and relied upon the documents as relied upon by WW-1. Both were also cross-examined by ld. AR for management.
Thereafter, vide separate statement, ld. AR for workmen closed workmen evidence.
7. Thereafter, during management evidence, statement of Sh. Suman Kumar Thakur was recorded as MW-1. He tendered his affidavit Ex. MW1/A and relied upon documents Ex. MW1/1 to Ex. MW1/5.
• MW-1/1 is the notice dated 27.01.2018;
• MW-1/2 is another notice issued by the
management which is dated 05.03.2018;
• Ex MW-1/3 is the list of workmen who have settled
by way of full and final settlement;
CC no. 307/18
Kamlapati and ors Vs. M/s Moets Bar B que page no. 6 /15
• Ex. MW1/4(colly) is the full and final settlement
made by various workmen;
• Ex. MW1/5 is the list of workmen who rejoined.
MW-1 was also cross-examined at length by ld. AR for workmen. Thereafter, vide separate statement, ME was closed on 22.01.2020.
8. I have gone through the entire record of the case including pleadings of the parties, evidence led and documents proved during evidence.
9. This Tribunal heard arguments at length as advanced by Sh. Rajesh Narang and Sh. Mahender Sharma, ld. AR for workmen and Sh. Deepak Tyagi, Ld. AR for management and have referred all the documents and the evidence during arguments in support of their case. During pendency of the present complaint, following workmen have settled the dispute with the management by receiving full and final settlement amount in view of the order passed by my ld. Predecessor vide order dated 20.12.2019.
1. Sh. Hansraj Amola;
2 Sh. Nitya Nand Jha;
3. Sh. Yuvraj Thapa Besides the above settlement, management has also settled the CC no. 307/18 Kamlapati and ors Vs. M/s Moets Bar B que page no. 7 /15 matter with some of workmen, list of which has been annexed as Ex. MW1/3. Further, some workmen have rejoined in the management vide Ex. MW1/5.
10. Thus, the dispute remains for the remaining workmen who are contesting the present claim.
11. Now, my issue wise findings are:-
ISSUE NO.1 Whether the complaint case under Section 33A ID Act, 1947 is maintainable?........ OPW The onus to prove this issue was on the workmen.
In reply filed by the management in para no. 2, it is mentioned that shops/restaurant was closed due to the reasons beyond the control of the management; Management had paid all dues to the workmen inspite of the closure of the establishment which was beyond the control of the management. It is further objected in the reply filed by the management that the restaurant used to run on five floors including a basement floor at 50, Defence Colony market, New Delhi-110024. But on 22.12.2017, Municipal Corporation of Delhi sealed 1st floor, 2nd floor and 3rd floor under the order of Monitoring CC no. 307/18 Kamlapati and ors Vs. M/s Moets Bar B que page no. 8 /15 Committee appointed by the Hon'ble Supreme Court. Subsequently, on 16.01.2018 the basement floor of the said establishment was also sealed by the Monitoring Committee which led the total closure of the establishment. Since it was not possible to operate the restaurant without the equipment or other required articles which were also sealed by the SDMC. It is further submitted that employees were very much aware about the closure of the establishment due to unavoidable circumstances which were beyond the control of the management and management had given first notice dated 27.01.2018 and asked them to take full and final settlement amount against their services due to closure.
In para no 2 of Ex. WW1/A, WW-1 specifically deposed that an Industrial Dispute of General demand bearing no. 257/18 is pending before Industrial Tribunal-I. It is further deposed that without moving approval application U/s 33(2)(b) of the Industrial Dispute Act 1947, the management has changed the service conditions of the workmen with effect from 07.3.2018. During cross-examination, management has not challenged this piece of evidence. Similar deposition was made by WW-2 in Ex. WW2/A and WW-3 in Ex. WW-3/A. Management has not challenged such piece of evidence. Thus, it is admitted case of the management that industrial dispute bearing no. CC no. 307/18 Kamlapati and ors Vs. M/s Moets Bar B que page no. 9 /15 297/18 of general demand is pending before Industrial Tribunal-I i.e. before this Tribunal. It is also not disputed by the management that management has not moved any approval application U/s 33(2)(b) of the ID Act.
During cross-examination, MW-1 deposed that HR of the management is functioning from the ground floor. It is further admitted that ground floor of the management was opened on 23.09.2018.
Section 33(2) of the Industrial Dispute Act provides:-
33(2) During the pendency of any such proceedings in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such dispute (or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied between him and the workman:-
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of the proceedings;
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action CC no. 307/18 Kamlapati and ors Vs. M/s Moets Bar B que page no. 10 /15 taken by the employer.
Therefore, in view of the specific provisions given U/s 33(2) of the Industrial Dispute Act, this Tribunal is of the considered view that complaint U/s 33A of ID Act is maintainable.
Section 33A of Industrial Act provides:-
33A Special provision for adjudication as to whether conditions of service etc, changed during pendency of proceeding:- Where an employer contravenes the provisions of section 33 during the pendency of proceedings before a conciliation officer, Board, an arbitrator, Labour Court, Tribunal or National Tribunal any employee aggrieved by such contravention, may make a complaint in writing.
(a)........
(b) to such Arbitrator, Labour Court, Tribunal or National Tribunal and on receipt of such complaint, the arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply accordingly.
12. The defence raised by MW-1 in para no. 13 of Ex. MW-1/A is that the establishment/restaurant in the instant case used to run on five floors including a basement floor at 50, Defence colony Market, New Delhi-110024. But on 22.12.2017, MCD sealed 1 st floor, 2nd floor and 3rd floor under the order of Monitory committee appointed by the Hon'ble Supreme Court. However, the said order of monitoring committee has not been brought before this Tribunal any time during CC no. 307/18 Kamlapati and ors Vs. M/s Moets Bar B que page no. 11 /15 the entire proceedings of the case. No reason has been explained by the management. It is further deposed by MW-1 that on 16.01.2018 the basement floor of the said floor was also sealed by the monitory committee which led the total closure of the establishment. It is the case of the management that management communicated through notice dated 05.03.2018 to all the employees to take cheque as full and final settlement amount on 07.03.2018 against their services. Further, it is admitted case case of the management that no such approval application has been moved.
13. As per the Industrial Disputes Act, it is the Tribunal who has to ascertain whether the management as per the circumstances and facts may be there, had terminated the services of the workmen.
This Tribunal has relied upon judgment of the Hon'ble Apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd Vs. Ram Gopal Sharma and ors, (2002) AIR (SCW) 249 wherein it has been held in para no. 9 and 10 as:
"9. It is now well settled that the requirements of the proviso have to be satisfied by the employer on the basis that they form part of the same transaction; and stated generally, the employer must either pay CC no. 307/18 Kamlapati and ors Vs. M/s Moets Bar B que page no. 12 /15 or offer the salary for one month to the employee before passing an order of his discharge or dismissal, and must apply to the specified authority for approval of his action at the same time, or within such reasonably short time thereafter as to form part of the same transaction. It is also settled that if approval is granted, it takes effect from the date of the order passed by the employer for which approval was sought. It approval is not granted, the order of dismissal or discharge passed by the employer is wholly invalid or inoperative, and the employee can legitimately claim to continue to be in the employment of the employer notwithstanding the order passed by him dismissing or discharging him. In other words, approval by the prescribed authority makes the order of discharge or dismissal effective; in the absence of approval, such an order is invalid and inoperative in law."
10. In the same judgment, it is also stated that "order of dismissal or discharge being incomplete and inchoate until the approval is obtained, cannot effectively terminate the relationship of the employer and employee and that if the approval is not accorded by the Tribunal, the employer would be bound to treat the respondent as its employee and paying his full wages for the period even though the employer may subsequently proceed to terminate the services of the respondent".
14. Hence, keeping in view the above cited case law and in view of the observations made here-in-above, this Tribunal is of considered view that termination notice Ex. MW1/1 is illegal and cannot be termed as termination notice. Management has also not brought on record or proved the copy of sealing order of the premises CC no. 307/18 Kamlapati and ors Vs. M/s Moets Bar B que page no. 13 /15 of the management or any such circular etc. Thus, management is not able to prove that the premises of the management had ever been sealed or restaurant of the management was not functional. It appears that the management has made false plea to deprive the workmen from their legitimate rights especially when an industrial dispute bearing no. 257/18 is pending before Industrial Tribunal no. 1 and no approval application has been moved by the management. Therefore, workmen are able to discharge the onus to prove issue no. 1 and thus issue no. 1 is accordingly answered in favour of the workmen and against the management.
Relief.
Since from discussion of issue no. 1, it is held by this Tribunal and findings have been given that termination of workmen was illegal and in contravention of the provisions of Section 25(F) and Section 33 of the Industrial Dispute Act, 1947, therefore, workmen are held entitled to be reinstated in service with continuity of service and full back wages along with all consequential benefits in favour of the workmen and against the management in the interest of justice except the workmen who had already settled vide Ex. MW-1/3 and had settled vide order passed by this Tribunal on 20.12.2019 and workmen who have re-joined in the management vide Ex. MW-1/5. CC no. 307/18 Kamlapati and ors Vs. M/s Moets Bar B que page no. 14 /15 Since, the workmen unnecessarily contested the present litigation i.e. present complaint, as management had terminated the services of the workmen illegally without moving proper approval application during pendency of ID Act, therefore, prayer for workmen for legal expenses/cost of Rs. 31,000/- as per Section 11(7) of the ID Act, 1947 is allowed to be paid by the management to the workmen.
The judgment is passed accordingly.
15. Copy of the judgment be sent to the appropriate Government for publication. File be consigned to the Record Room.
ANNOUNCED IN THE OPEN COURT
ON THIS 03RD DAY OF MARCH, 2022 JITENDRA Digitally signed
by JITENDRA
KUMAR KUMAR MISHRA
Date: 2022.03.03
MISHRA 04:41:33 +0530
(JITENDRA KUMAR MISHRA)
POIT-1, RADC, NEW DELHI
CC no. 307/18
Kamlapati and ors Vs. M/s Moets Bar B que page no. 15 /15
CC no. 307/18
Kamlapati and ors Vs. M/s Moets Bar B que page no. 16 /15