Delhi District Court
Sh. Ravinder Pal Sharma vs M/S Sahil International (India) on 12 November, 2009
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IN THE COURT OF SH. DAYA PRAKASH
PRESIDING OFFICER LABOUR COURT NO. XVI
KARKARDOOMA COURTS : DELHI
ID NO. 254/06
Sh. Ravinder Pal Sharma
S/o Sh. Puran Lal Sharma
R/o C/o Trade Union Co-ordination Centre
S-22/161, Gali No. 4
Vishnu Garden
New Delhi. ...... Workman
VERSUS
M/s Sahil International (India).
5/45, W.E.A Ajmal Khan Road
Karol Bagh
New Delhi. ...... Management
Date of Institution of the Case : 16.08.03
Date on which the judgment has been reserved : 23.10.09
Date of delivery of judgment :
AWARD
1. The National Capital Territory of Delhi, through its
Secretary (Labour) vide reference no. F-24(394)/2003/Lab./8631-
35 dated 15.07.03 referred the dispute for adjudication between
the Management M/s Sahil International and its workman
Sh. Ravinder Pal Sharma in the following terms of reference:
"(i) Whether Sh. Ravinder Pal Sharma S/o
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Sh. Puran Lal Sharma; Sh. Hemender Kumar S/o
Sh. Shishu Pal Singh; Sh. Prakash Chand S/o Sh.
Bhon Roy have left their services on their own
accord after receiving their dues in full and final
settlement or their services have been terminated
illegally and/or unjustifiably by the management
and if so, to what relief are they entitled and what
directions are necessary in this respect?
(ii) Whether Sh. Ram Bahadur S/o Sh. Jahar
Singh is absenting from his duties
unauthorisedly or his services 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?"
2. As per claim, applicant Ravinder Pal Sharma had been
working with the management since 7.06.96 on the post of Store
Keeper at the monthly salary of Rs. 2845/-. During the course of
his employment, he discharged his duties very honestly and
never afforded any chance of complaint to the management. It is
further stated that management was not providing all legal
facilities e.g appointment letter, attendance card, minimum
wages, ESI, PF and Bonus etc. to the workman. On demanding
the same, management remained annoyed and due to the
annoyance, management terminated the services of workman on
19.09.01 without any information and retained the amount of six
months overtime. Thereafter workman made a complaint
before labour office through union but management did not take
the workman back on duty. It is further stated that management
had violated section 25-F of ID Act, 1947. Workman had sent a
demand notice dated 2.11.01 vide registered AD demanding his
dues and reinstatement but management neither replied nor
reinstated him on duty. It is further stated that workman is
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unemployed till date.
3. Notice of claim was sent to management. AR for
management appeared and filed WS wherein it is stated that the
industrial dispute raised against the management under the
name of M/s Sahil International (India) Pvt. Ltd. and the
reference is in competent in as much as the applicant was in the
employment with the answering management M/s Sahil
International (India). It is further stated that the reference and the
consequent claim statement for and on behalf of applicant
Ravinder Pal is incompetent in much as no industrial dispute
existed or apprehended as stipulated under Industrial Dispute
Act in view of the amicable settlement executed and signed
between the applicant and the management on 9.11.01 which
constitute a settlement as engrafted u/s 2 (p) and section 1 of
the Industrial Dispute Act, 1947. It is further stated that the
claim filed on behalf of Ravinder Pal Sharma is an abused of
process of law in as much as the applicant Ravinder Pal Sharma
initially started absenting from duty w.e.f 20.09.01 without any
intimation and prior permission and did not join his duty inspite of
different call back notices dated 27.09.01, 9.10.01, 23.10.01,
31.10.01. Instead of joining his duty, the applicant served the
management with demand notice dated 9.10.01 through union.
Thereafter a settlement u/s 18 (1) was executed and signed
between the workman and the respondent and a sum of Rs.
18,914/- was paid to him in presence of office bears of union leaving no matter unsettled. It is further stated that industrial dispute raised for an on behalf of applicant Ravinder Pal Sharma and the reference for adjudication is not tenable in as much as 3/19 -4- neither he has right to raise the industrial dispute nor any relief can be awarded in his favour in view of settlement u/s 18 (1) of Industrial Dispute Act which put embargo on the applicant to raise the industrial dispute or to seek any relief from this court in as much as after the settlement the industrial dispute ceased to exist. It is further stated that industrial dispute raised for and on behalf of Ravinder Pal Sharma is in competent in as much as he cease to be a workman of the management after the settlement between him and the management. The industrial dispute raised for and on behalf of workers Hamender and Prakash Chand is not tenable in as much as the workman Hemender left the service of his own accord on 11.02.01 after the receipt of the accrued dues and the workman Prakash Chand left his services on 20.09.01 and the accrued dues were paid to him through cheque. The industrial dispute raised and the claim statement for and on behalf of Hamender and Prakash is not sustainable in view of the fact that both the applicants ceased to be workers when they left the job on 11.02.01 and 20.09.01 and no industrial dispute either exist or apprehend between them and the management. The industrial dispute for and on behalf of workman Ram Bahadur is not maintainable in view of the fact that he abruptly started absenting from duty unauthorisedly without any intimation and prior permission w.e.f 8.07.01 and have not joined his duty inspite of letters dated 7.08.01, 3.10.01, 4.12.01, 2.01.02, 6.02.02 and 28.03.02 followed by charge sheet.
On merits it is denied that applicants were in the employment with the management M/s Sahil International Pvt. Ltd. The fact remains that the applicants Ravinder Pal Sharma, 4/19 -5- Hamender Kumar, Prakash Chand were in the employment with the management. It is further denied that they were in the employment as per details of designation and date of joining or that the management terminated their services. The fact remains that the applicant Ravinder Pal joined the management w.e.f 1.07.97 as Helper. Further he continued to work in the same capacity till he started absenting from duty w.e.f 20.09.01 and subsequently settled the matter amicably on 9.11.01 in presence of office bearers of union. He was being paid the prescribed minimum wages as provided under difference notification issued by appropriate Government and the same has been enhanced from time to time as per notification issued by appropriate government. Further with regard to applicant Hamender Kumar, it is submitted that he joined the management w.e.f 1.10.98 as Peon. Further he continued to work in the same capacity till 11.02.01 when he chose to leave the job of his own accord after the receipt of accrued dues. Further the applicant Prakash Chand joined the management from 1.05.96 as Peon and continued to serve the management till 20.09.01 when he left the job of his own accord after the receipt of accrued dues. Further with regard to their salary, it is submitted that they were being paid the prescribed minimum wages from the date of their joining and lastly their monthly remunerations were Rs. 2845/- per month. Further with regard to the workman Ram Bahadur it is submitted that he joined the management w.e.f 11.02.99 as Peon and his last remuneration were Rs. 2845/- per month. It is further denied that the management was depriving the aforesaid workers from the legal facilities. The prudent facts are that the answering respondent, being vigilant towards the rights of the 5/19 -6- employees, are extending all he legal facilities under Delhi Shops and Establishment Act, Payment of Bonus Act, Payment of wages Act, Minimum Wages Act, Payment of Gratuity Act, ESI Act, EPF and M.P Act. Further the applicant Ravinder Pal joined the management w.e.f 1.07.97 as Helper. Further he continued to work in the same capacity till he started absenting from duty w.e.f 20.09.01 and subsequently settled the matter amicably on 9.11.01 in presence of office bearers of union. Further with regard to applicant Hamender Kumar, it is submitted that he chose to leave the job of his own accord after the receipt of accrued dues on 11.02.01. Further the applicant Prakash Chand left his job on 20.09.01 when he left the job of his own accord after the receipt of accrued dues. Further with regard to the workman Ram Bahadur, it is submitted that he opted to remain absent from duty from 8.07.01 and have not come forward to resume his duty thereafter inspite of letters dated 7.08.01, 3.10.01, 4.12.01, 2.01.02, 6.02.02 and 28.03.02 sent to his last known native address but they did not respond ultimately the management terminated their services. It is denied that the applicants made any complaint through union with the labour department or that any labour inspector visited the answering respondent or that the respondent refused to take the applicants on duty. It is further submitted that no labour inspector ever visited the management. It is further stated that since the applicant Ravinder Pal Sharma settled his matter amicably with the management in presence of office bearers of union and the workers namely Hamender Kumar and Prakash Chand chose to leave their job on their own accord, the question of taking them back on duty did not arise. Further the applicant Ram Bahadur 6/19 -7- started absenting from duty without any permission and have not come forward to resume his duty inspite of letters referred herein before and no labour inspector ever visited the respondent on the basis of the alleged complaint on the union. Further the management never terminated the services of workman Ram Bahadur and he continues on the rolls as absent. It is further denied that the management terminated the services of applicant Ravinder Pal or any other worker on any date or that the management ever resorted to retrenchment of the applicants as stipulated u/s 2 (oo) in violation of section 25-F of the Industrial Dispute Act, 1947.
4. Subsequently, Rejoinder to the W.S. of the management was filed wherein the workman has denied the allegations made in the WS and reiterated the averments contained in the claim.
5. Perusal of file shows that claimant wanted to get corrigendum in the name of management from Labour Commissioner. On 4.06.05 a corrigendum was received wherein the name of the management was corrected as M/s Sahil International (India) in place of M/s Sahil International (India) Pvt. Ltd.
6. After completion of pleadings, following issues were framed on 23.08.05 :
1. Whether the claimant left the services of his own on 11.02.01 and 20.09.01 after getting full and final payment dues as per settlement?7/19 -8-
2. As per terms of reference.
7. Parties led their evidence.
On behalf of workman, Workman Sh. Ravinder Pal Sharma examined himself.
On behalf of management, Sh. Amardeep Julka deposed as MW 1.
8. WW 1 in evidence by way of affidavit supported the averments made in the claim and got exhibited copy of complaint as Ex. WW 1/1, report of labour inspector Ex. WW 1/2, copy of demand letter Ex. WW 1/3, copy of claim filed before labour office Ex. WW 1/4.
An additional affidavit was also filed in which it is stated that workman Ravinder Pal Sharma had been working with the management as Store Clerk @ Rs. 2846/- per month. He further got exhibited the documents complaint of union Ex. WW 1/1, report of labour inspector Ex. WW 1/2, copy of demand letter Ex. WW 1/3, postal receipt Ex. WW 1/4, AD card Ex. WW 1/5, copy of conciliation proceedings Ex. WW 1/6, ESI card Ex. WW 1/7, PF receipt Ex. WW 1/8, copy of register of payment of Bonus Ex. WW 1/9.
In cross examination of WW 1, he denied that he joined M/s Sahil International on 1.07.97. He further stated that he did not possess any document to prove that he was in employment with M/s Sahil International prior to 1.07.97. He further stated that he did not possess any document that prior to 1.07.97 he 8/19 -9- was in Sahil Emporium Pvt. Ltd. He admitted that from 1.07.97 ESI/PF contribution was being deducted from his salary. He further admitted that ESI card was issued to him by virtue of his employment with Sahil International. He admitted that from July 1997 till September, 2001 he did not make any complaint. He further denied that he did not make any complaint against the management regarding statutory benefits. He admitted that no such complaint had been filed in the present case made for non providing of statutory benefits during the period July, 1997 to September, 2001. he further admitted that he had worked till 19.09.01. He denied that he started absenting from duty w.e.f 20.09.01. He denied that the management sent the letter dated 27.09.01, 9.10.01, 23.10.01 and 31.10.01 to rejoin the duty. He did not know whether the management sent the reply to his demand notice. He further stated that he did not report for duty after 19.09.01. He further admitted that he initiated the dispute before conciliation officer and also field the claim statement through union and Sh. Munna Lal authorised representative is the General Secretary of the union. He further admitted that he sign in English. He further denied that the payment was made through cheque no. 060970 dated 19.09.01, 06976 dated 19.09.01, 060977 dated 19.09.01, 892437 dated 3.11.01. He further denied that besides the said cheques, a sum of Rs. 4334/- was paid in cash. He further admitted that the said cheques were deposited by him with his bankers and the same were credited in his account. He further admitted that the settlement borne his signature at point A and the signature of Sh. Munna Lal, General Secretary of the union at point B. He further admitted that the receipt also borne his signature at 9/19 -10- point A and the signature of Sh. Munna Lal, General Secretary of the union at point B. He further admitted that he had received a sum of Rs. 18914/- as per settlement. He further admitted that no date was fixed before Conciliation Officer after 9.11.01. He did not know whether the management sent the reply to the conciliation officer dated 3.04.02 reply dated 30.03.02, 1.06.02 and 13.06.02.
9. MW 1 Sh. Amardeep Julka in examination in chief supported the averments mentioned in the WS.
In cross examination of MW 1, he deposed that Rs. 18914/- was paid to the workman on 9.11.01 during earlier conciliation proceedings in labour office. He further stated that he did not remember whether he had joined the conciliation proceedigns on 11.04.02. He further stated that he had not joined the conciliation proceedings on 20.04.02. He denied that all the letters were sent to the workman were forged and manipulated. He further denied that the letters sent by the management to the workman were not received by him. He further denied that the management had settled the dispute with Ram Bahadur, Himender Kumar, Prakash Chand and no settlement was made with workman Ravinder Pal Sharma. He further denied that the documents showing the settlement with Ravinder Pal Sharma have been forged and fabricated by the management as signatures of Ravinder Pal Sharma were taken on those documents at the time of his appointment. He further denied that the management has illegally terminated the services of the workman.
10/19 -11-10. Written arguments filed by management. It is stated in the written arguments that initially the workman Ravinder Pal started absenting from duty w.e.f 20.09.01 and did not report for duty inspite of letter dated 27.09.01, 9.10.01, 23.10.01 and 31.10.01. The workman sent a demand notice dated 2.11.01 alleging termination which was replied by the management on 7.11.01. It is further stated that the workman Ravinder Pal raised the dispute before conciliation officer. The negotiations were held between the management and the workman and as per settlement executed on 9.11.01 a sum of Rs. 18,914/- was paid through cheque no. 060970 dated 19.09.01, cheque no. 060976 dated 19.09.01, cheque no. 060977 dated 19.09.01, cheque no. 892437 dated 3.11.01 along with Rs. 4334/- in cash. The said settlement was signed by the workman in presence of Sh. Munna Lal, General Secretary of the union who also signed the settlement and the receipt. It is further stated that after 8 months the workman Ravinder Pal along with other workers Prakash Chand, Hemender Kumar and Ram Bahadur, the management sent the written comments to the conciliation officer. On the basis of the averments made in the written comments sent to the conciliation officer, a reference was made for adjudication. It is further stated that out of said 4 workers only Ravinder Pal filed the claim statement. AR for management stated that no proof has been put forward by the workman that he was in the employment with the management prior to 1.07.97. He further stated that the ESI card contains the date of appointment as 1.07.97 which have been filed and relied upon by the workman. He further stated that workman Ravinder Pal has admitted that he had worked 11/19 -12- till 19.09.01 and thereafter raised the dispute before conciliation officer. He also admitted that the settlement and receipt borne his signatures and the signature of Sh. Munna Lal, General Secretary. He also admitted that the cheques received by him were credited in his bank account. He also admitted that no date were fixed before conciliation officer after 9.11.01. He further stated that after 8 months he along with three workers raised again the dispute of termination and concealed the fact of settlement. He further stated that the workman has not challenged the settlement or the receipt or the full and final amount as per the terms of reference. He further stated that there is no dispute on the question of settlement and the receipt of dues.
He has cited the case laws :
State of Uttranchal Vs. Jagpal Sigh Tyagi, LLR 2006 SC page 254 M/s Sagri Leather Pvt. Ltd. Vs. Presiding Officer, Industrial Tribunal IV Agra and ors., LLR 2006 pg. 1170 Allahabad K Jayapal Vs. Union of India and ors., LLR 2007 Madras pg. 1046 Management of M/s Otis Elevator Company India ltd. Vs. The Presiding Officer, Industrial Tribunal III, LLR 2003 pg. 701, Delhi.12/19 -13-
Suchintra Chandra Mohan Mayekar Vs. Jewar Chand Ramji Harya, LLT 2005 pg. 44 Bombay.
Etawah Kshatriya Gramin Bank Etawah Vs. Presiding Officer Central Govt. Industrial Tribunal cum Labour Court, Kanpur & Ors., LLR 2003 pg. 1130 Allahabad.
On the other hand, AR for workman has also stated that workman had been working with the management since 7.09.96 as Store Clerk @ 2846/- per month. He further stated that management was not providing legal facilities. On demanding repeatedly the legal facilities, management started harassed him and terminated him from the services of management on 19.09.01 without any notice or reason and without paying his dues. He further stated that workman was availing the facilities of ESI and PF which is on record, which proves the relationship of employer and employee between the workman and the management. He further stated that management has taken the plea that workman has settled his account. AR for workman further stated that workman has completed more than 240 days, hence, without following the procedure, he could not be terminated from the services of management. He further stated that workman had not left the services of management of his accord rather he is still willing to join the duty back. AR for workman further stated that workman has got the cheque of Rs.
6565/- bearing no. 892437 dated 3.11.01 regarding Bonus and cheuqe no. 060976 dated 19.09.01 amount Rs. 2325/- in respect of leave encashment and cheque no. 060976 amounting Rs. 2845/- dated 19.09.01 in respect of salary and cheque no.
13/19 -14-060977 dated 19.09.01 amounting Rs. 2845/- in respect of salary. He further stated that Rs. 18914/- vide cheque bearing no. 060970/- dated 19.09.01 was never received by the workman.
11. Following Citations were also filed :
Pradeep Port Trust Vs. Their workmen, 1976 LLJ SC pg. 409el.
Baroda Ispat Pvt. Ltd. Vs. Ramgopal M. Patel and ors., 2005 LLR 343 Allied Shipping & Packing Co. Pvt. Ltd. Vs. Secretary (Labour) and ors., 2005 LLR 346 Salvation Army Vs. Sunil J. Ingle, 2006 LLR 108
11. Final arguments heard.
12. I have seen the file, written arguments filed by the both the parties and further citations on record and my findings with respect to the issues are as under :REGARDING ISSUE NO. 1 and 2
Perusal of statement of claim, reply and documents on record, my impression is that the issue no. 1 and 2 be decided against the workman and in favour of management and the reference be decided in negative i.e against the workman on following grounds :14/19 -15-
(i) The reference was with respect to Sh. Ravinder Pal Sharma S/o Sh. Puran Lal Sharma, Sh. Hamender Kumar S/o Sh. Shishu Pal Singh, Sh. Prakash Chand S/o Sh. Bhon Roy and Sh. Ram Bahadur S/o Jahar Singh. On receipt of reference notice was served on the workman as well as on union and only workman Ravinder Pal Sharma filed the statement of claim.
During the continuation of trial none of other workmen filed the statement of claim or impleaded in the present dispute. Hence, the reference with respect to Sh. Hamender Kumar S/o Sh. Shishu Pal Singh, Sh. Prakash Chand S/o Sh. Bhon Roy and Sh. Ram Bahadur Singh S/o Sh. Jahar Singh is treated as No Dispute. Accordingly No Dispute Award is passed.
(ii) The sole workman who filed the statement of claim had stated in the claim that he had been working with the management since 7.06.96. In the WS, management denied this fact and stated that Ravinder Pal Sharma joined the management on 1.07.97. ESIC card has been filed by the workman which is Ex. WW 1/8. The date of appointment in the ESIC I-card being 1.07.97. Hence, it is proved that the workman joined the management on 1.07.97 not on 7.06.96 as claimed.
(iii) Workman had further stated in the statement of claim that he joined the management as Store Clerk. This fact has been denied by the management stating that the workman was merely Peon. I have seen the document Ex. WW 1/M1 as well as Ex. WW 1/M2 which is admitted to be signed by the workman. The workman has been shown as Peon when he 15/19 -16- himself has signed the document showing himself Peon. He cannot change his designation in his statement.
(iv) Before filing the present statement of claim the workman had also initiated conciliation proceedings. In the conciliation proceedings a settlement was arrived between the parties. Ex. WW 1/M1 is a Deed of Settlement and Ex. WW 1/M2 is a receipt. Ex. WW 1/M1 has following Terms of Settlement :
(a) That the management has paid a sum of Rs.
18,914/- (Rs. Eighteen Thousand Nine Hundred Fourteen only) towards full and final dues of the workman against earned wages, leave wages, bonus and exgratia payment against all his claims, rights, disputes including the right of reinstatement and/or re-employment.
(b) That the applicant has received the aforesaid amount of Rs. 18,914.00 (Rs. Eighteen Thousand Nine Hundred Fourteen only) towards earned wages, leave wages, bonus and exgratia payment from the management and now he has no dispute/claim/right including the right of reinstatement against the management.
This settlement has been signed by the workman admittedly as well as thumb impressed. This settlement is also counter signed by the Representative of the union admittedly. Similarly, the receipt is also thumb impressed and signed by the claimant Ravinder Pal Sharma and counter signed as a witness 16/19 -17- by the Representative of the union. Section 18 of ID Act, 1947 becomes relevant. Section 18 of ID Act, 1947 is as under :
" Persons on whom settlements and awards are binding - [(1) A settlement arrived at by agreement between the employer and workman otherwise than in the course of conciliation proceeding shall be bindng on the parties to the agreement.] [(2) [Subject to the provisions of sub-section (3), an arbitration award] which has become enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration.] [(3)] A settlement arrived at in the course of conciliation proceeding under this Act [or an arbitration award in a case where a notification has been issued under sub-section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or National Tribunal] which has become enforceable] shall be binding on -
(a) all parties to the industrial dispute;
(b) all other parties summoned to appear in the
proceedings as parties to the dispute, unless the Board, [arbitrator] [Labour Court, Tribunal or National Tribunal], as the case may be, records the opinion that they were so summoned without proper cause;
(c) where a party referred to in clause (a) or clause (b) is an employer, his heirs, successors or assigns in respect of the 17/19 -18- establishment to which the dispute relates;
(d) where a party referred to in clause (a) or clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part.
This section clearly shows that any settlement in the conciliation is binding of all the parties to the Industrial Dispute. Claimant is a party to the settlement Ex. WW 1/M1 and is binding on him.
State of Uttranchal Vs. Jagpal Sigh Tyagi, LLR 2006 SC page 254, it was held by the lordship of Supreme Court that :
"settlement can be subject matter of another Industrial Dispute. However the workman cannot say that the settlement is not binding on him.
It was further held that:
"Once the benefit has been received by the workman under the settlement it was not open to him to turn it down without justifiable reasons."
However the workman can challenge the settlement on equitable grounds which the workman has not done in the present case.
In M/s Sagri Leather Pvt. Ltd. Vs. Presiding Officer, Industrial Tribunal IV Agra and ors., LLR 2006 pg. 1170 18/19 -19- Allahabad, it was held by Allahabad High Court that :
"When a workman signed the payment voucher and received the cheque and encashed towards full and final settlement, it is a case of voluntarily leaving the service and not a case of retrenchment."
Hence, after the settlement Ex. WW 1/M1 the case of the workman cannot be treated as the case of retrenchment. It has become the case of voluntarily leaving the service of the management after he received all the benefits. In a rare case where a benefit has not been received he can file a suit for recovery of benefit under the appropriate provision but he cannot challenge the settlement.
13. In the light of above reasons and discussions, the reference is answered in negative as workman Ravinder Pal Sharma has left the services of his accord after receiving full and final settlement and his services have not been termianted by the management. He is not entitled for any relief.
14. Copies of award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.
Announced in the Open Court (DAYA PRAKASH)
th
on 12 November, 2009 Additional District & Session Judge Presiding Officer labour Court XVI Karkardooma Courts : Delhi.
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