Delhi District Court
Neeraj Kumar S/O. Sh. Ramsewak vs M/S. Creative Solution (S.M.H.) Pvt. ... on 11 February, 2014
Neeraj Kumar Vs. M/s. Creative Solution (S.M.H.) Pvt. Ltd. ID No. 141/12
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI:
KARKARDOOMA COURTS: DELHI
REFERENCE CASE (ID) No. 141/12
UNIQUE CASE ID No. 02402C0141712012
In the matter of:
Neeraj Kumar S/o. Sh. Ramsewak
R/o. H. No. 532/C, Gali No. 5,
Vijay Park, Moujpur, Shahdara, Delhi 110053
......... Workman.
V/s.
M/s. Creative Solution (S.M.H.) Pvt. Ltd.
R/o A42, IInd Floor, Rajouri Garden
Near Yamaha Showroom, New Delhi - 110027
Also at: A25, IInd Floor, Rajouri Garden,
New Delhi.
...........Management.
Date of Institution : 07.05.2012
Date of reserving for award : 01.02.2014
Date of award : 11.02.2014
AWARD :
1.TERMS OF REFERNCE.
Vide ORDER No. F-3(335)/11/Ref./WD/LAB./183 dated 19.04.2012 Deputy Labour Commissioner (West District), Labour Department, Govt. of NCT of Delhi made the following reference under section 10(1)(c) and section 12(5) of the Industrial Disputes Act, 1947 for adjudication by this Court: "Whether the services of Sh. Neeraj Kumar S/o Sh. Ramsewak 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. CASE OF WORKMAN AS PLEADED IN STATEMENTOFCLAIM
(i) Workman was employed with management at the post of 'Supervisor' with his monthly salary of Rs.12,000/. Workman never gave any opportunity to the Page 1 to 9 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Neeraj Kumar Vs. M/s. Creative Solution (S.M.H.) Pvt. Ltd. ID No. 141/12 management to have any complaint against him.
(ii) Management was not providing the legal facilities in terms of grant (sic) by Delhi Administration like uniform annual allowance, ESI, PF, bonus, overtime payment etc. and workman was being compelled to work for 12 - 14 hours per day for which workman raised the demand but management did not pay any heed to the demand of the workman.
(iii) On 20.04.2010 workman made above demands, management got annoyed and without assigning any reason terminated service of workman on 25.06.2010 without clearing back wages of the workman.
(iv) Workman had no any alternative employment and means to earn his livlihood and he regularly kept visiting the office of the management with a hope that he might be taken back in service but when all his efforts turned into futile, workman sent a demand notice through his ld. counsel on 06.10.2010 to the management but the arrogant management did not bother to reply the same. Workman was left with no other option and workman lodged a complaint before the Conciliation Officer at Pushp Bhawan, Pushp Vihar, Madangir, New Delhi - 110062 but management did not appear before the Conciliation Officer and hence this reference.
(v) Workman many times requested to the management to take him back in service and in this regard management also made promises but did not fulfill the promise and kept on harassing the workman.
(vi) Workman visited the management many times with request to pay his back dues such as PF, bonus of the year 22.04.2006 to 25.06.2010 and salary for the month of 20.04.2010 to 25.06.2010, ESI, service allowance, leave assessment (sic).
(vii) The termination of service of the workman is illegal according to the Industrial Disputes Act, 1947.
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Neeraj Kumar Vs. M/s. Creative Solution (S.M.H.) Pvt. Ltd. ID No. 141/12
With these averments, workman prayed as under:
"(a) To hold that the termination of the workman / claimant is illegal
and unjustifed and management may be directed to reinstate the workman/claimant with full back wages with the continuity in his service and all consequential benefits.
(b) To direct the management to regularize the service of the workman / claimant from the date of his initial appointment in regular pay scale.
(c) To direct the management to pay the arrears of salary, dues upon the management.
(d) To pass any or further order/s which this Court may deem fit and proper in the facts and circumstances of the case."
3. CASE OF MANAGEMENT AS PLEADED IN WRITTEN STATEMENT.
Management in its WS took the stand that workman was in its employment at the post of 'Supervisor' but has denied that his salary was Rs.12,000/ pm. As alleged (sic), workman deceived the management for many times and he was working at another company "Jindal Intellicom Pvt. Ltd., 28, Najafgarh Road, New Delhi - 110015" after giving fake address to conceal the truth from both the companies. Workman was not working according to the norms of the company and, therefore, on many occasion management had given oral warning / notice / opportunities to the workman but workman did not improve his performance and, further, due to the bad performances of the workman, management had suffered but despite these facts management did not take any adverse action against the workman. Workman himself left the job without any information. As per management, workman was not entitled to receive the benefits (i.e. ESI, bonus, overtime payment etc.) Management has also denied the averments of the workman that he was compelled to work for 12 - 14 hours Page 3 to 9 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Neeraj Kumar Vs. M/s. Creative Solution (S.M.H.) Pvt. Ltd. ID No. 141/12 daily. As alleged, workman did not demand any allowance and salary on 20.04.2012 and management did not terminate his services on 25.06.2010. As alleged, there is no dues towards the workman and against the management. Management never received any notice dated 06.10.2012. As per management, workman never requested to the management to take him back into service as workman was working at "Jindal Intellicom Pvt. Ltd. As alleged, management never terminate the services of workman and workman himself left the job without any information to join the another company. At last, management prayed for dismissal of claim of workman with exemplary cost.
4. REJOINDER.
The workman filed rejoinder to the written statement of the management denying the stand taken by the management and reaffirming the averments made by him the StatementofClaim.
5. ISSUES Vide order dated 11.02.2013, ld. predecessor of this Court framed the following issues:
i) As per terms of reference.
ii) Relief, if any. 6. EVIDENCE.
Workmen appeared in witness box as WW1 Neeraj Kumar. On 09.09.2013, ld. counsel for workman closed WE. It is noted that on 15.10.2013, affidavit of Mr. Santosh Kumar Singh was filed in ME but he did not appear in witness box. Management examined MW1 Sh. Rakesh Kumar HR Associate and closed its evidence on 13.01.2014.
7. ARGUMENTS.
I have heard Sh. Anil Tejan, adv. for workman and Sh. Rakesh Kumar, adv. for management and gone through material available on judicial file very carefully.
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Neeraj Kumar Vs. M/s. Creative Solution (S.M.H.) Pvt. Ltd. ID No. 141/12
8. My ISSUEWISE FINDINGS are as under:
ISSUE No.1: As per terms of reference.
(Whether the services of Sh. Neeraj Kumar S/o Sh. Ramsewak 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?) Workman in the statementofclaim / his evidence affidavit Ex.WW1/A has not specifically pleaded as to since when he was working with the management. However, averments made in the statementofclaim / depositions made in his evidence affidavit Ex.WW1/A suggest that he joined the management on 22.04.2006, in as much as, workman claimed bonus for the year 22.04.2006 to 25.06.2010. However, in the demand notice Ex.WW1/4 workman specifically pleaded that he was appointed by the management as 'Supervisor' on 22.04.2006. Management in its WS / evidence affidavit (Ex.MW1/A) of MW1 Sh. Rakesh Kumar also did not plead as to when workman joined the management. There is no stand in the WS of the management that workman did not complete not less than one year continuous service so as to satisfy one of the requirements of section 25 F of the Industrial Disputes Act, 1947. In the course of arguments, ld. counsel for management submitted that admittedly workman worked with the management for more than one year. In the statementofclaim there is specific reference to the notice dated 06.10.2010 (Ex.WW1/4) which contained an averment that workman was appointed by the management as 'Supervisor' on 22.04.2006. There is no denial of this averments of the workman in the WS of management. In view of above discussion, it is observed that workman completed not less than one year of continuous service with the management so as to satisfy one of the requirements of section 25 F of the Industrial Disputes Act, 1947.
As per workman, he was employed with the management with his monthly salary of Rs.12,000/ per month. Management in its WS, admitted, employment of the workman as 'Supervisor' but denied that his salary was Rs.12,000/ per month.
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Neeraj Kumar Vs. M/s. Creative Solution (S.M.H.) Pvt. Ltd. ID No. 141/12
Management did not specifically plead what was salary of the workman if it was not Rs.12,000/ per month. Management also did not plead that workman was employed on commission basis rather than on monthly salary basis. However, in the cross examination of workman WW1 Neeraj Kumar, it was suggested to him that, "............It is wrong to suggest that I was working with the Management on commission basis and no fixed salary was payable to me............". Ld. counsel for management submitted that stand of the workman that he was employed on salary of Rs.12,000/ per month is totally false in as much as there is no entry in the statementofaccounts Ex.WW1/1 filed by the workman for a sum of Rs.12,000/. Ld. counsel for workman in reply submitted that enteries in the statementofaccounts Ex.WW1/1 have been made after adjusting the deductions made from the salary of the workman on account of leaves etc. Statementofaccounts Ex.WW1/1 pertains to period from 19.11.2008 to 26.06.2010 but none of the entry for salary of the workman is for a sum of Rs.12,000/. Possibilities of workman not availing even a single leave in, atleast, one of the months during abovesaid period cannot be ruled out altogether. When so understood, atleast, one entry in the Ex.WW1/1 must have been for a sum of Rs.12,000/ but there is no such entry. This suggest that stand of the workman that he was employed at monthly salary of Rs.12,000/ per month may not be correct. Stand of the management that workman was employed on commission basis appears to be more probable. However, whether workman was employed on monthly salary basis or on commission basis is not an important factor having significant impact on the decision of the case. So long as workman is held to be employed with the management and satisfying the requirement of section 25 F of the Industrial Disputes Act, 1947, it is immaterial, whether he was employed on commission basis or salary basis.
In order to succeed in getting a relief from this Court workman is supposed to substantiate on judicial file the averments as have been made in the statementofclaim so as to show existence of industrial dispute between the management and workman in Page 6 to 9 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Neeraj Kumar Vs. M/s. Creative Solution (S.M.H.) Pvt. Ltd. ID No. 141/12 terms of averments made in the statementofclaim. An industrial dispute can be said to be in existence between the management and workman if workman raises a demand from the management and management fails to comply with said demand of the workman. Demand as is raised from the management must be inconformity with the averments has made in the statementofclaim filed before this Court. In the casein hand, workman had allegedly sent the demand notice Ex.WW1/4 (dated 06.10.2010) to the management. What is pertinent to note is that the averments as have been made in the statementofclaim regarding the circumstances which led to the alleged termination of service of the workman by the management are absolutely missing in the said demand notice Ex.WW1/4. In the demand notice Ex.WW1/4 there is no reference to management not providing the legal benefits as alleged in statementof claim. Further, it is pertinent to note is that as per averments made in the statementof claim workman has not been paid salary for the period from 20.04.2010 to 25.06.2010, whereas the notice Ex.WW1/4 alleges that the workman has not been paid salary for the period from 20.03.2010 to 20.06.2010. As per notice Ex.WW1/4 workman was not paid salary w.e.f. 20.03.2010 onwards but statementofaccounts Ex.WW1/1 shows entry dated 24.04.2010 regarding payment of salary for the month of March 2010. Most importantly it is pertinent to note that in the demand not Ex.WW1/3, workman did not raise demand for reinstatement in service and only demanded for unpaid salary from 20.03.2010 till 20/25.06.2010. Also, it is pertinent to note that management has denied the receipt of demand notice Ex.WW1/4 and workman has not even filed on record the postal receipt vide which the said demand notice was dispatched to the management. There is no proof of service of abovesaid demand notice upon the management. Workman has filed on record photocopy of one postal receipt but said photocopy of postal receipt does not pertains to the demand notice Ex.WW1/4 and most likely it pertains to statementofclaim filed by the workman before the Conciliation Officer. In view of above discussion, it can be said that management was Page 7 to 9 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Neeraj Kumar Vs. M/s. Creative Solution (S.M.H.) Pvt. Ltd. ID No. 141/12 never served with the demand notice Ex.WW1/4 and also that the averments made in the statementofclaim filed before the Court regarding the circumstances in which service of workman was allegedly terminated by the management did not find mention in the said notice Ex.WW1/4. Inconsistencies, between the contents of the notice Ex.WW1/4 and averments made in the statementofclaim filed in Court go to suggest that averments made in the statementofclaim filed in Court are not true as regards the circumstances in which service of workman was allegedly terminated by the management. In such circumstances, the possibility of the case as pleaded by management that workman himself left the job without any information to the management cannot be ruled out altogether. Hon'ble Delhi High Court in case law reported as S. N. Tiwari Vs Govt. of N.C.T. of Delhi and Anr. MANU / DE / 2094 / 2009 has ruled that if a party fails to make a demand of his reinstatement prior to filing of a claim for his reinstatement before the Conciliation Officer, Industrial Dispute between the parties does not exist.
Workman in this case is also relying upon statementofclaim Ex.WW1/3 filed before the Conciliation Officer. It is pertinent to note that case as pleaded by workman in statementofclaim Ex.WW1/3 filed before the Conciliation Officer is not the same as pleaded in statementofclaim filed before this Court. The alleged legal facilities which were not being allegedly provided by management are not the same in Ex.WW1/3 and statementofclaim filed before the Court. In the notice Ex.WW1/4 and Ex.WW1/3 there are no averments / pleadings that after termination of his service on 25.06.2010, workman ever visited the office of management with a hope that he might be taken back in service as pleaded in statementofclaim filed before this Court. Also, workman has not proved on record by summoning the record of Conciliation proceedings that management was ever / in fact served with the statementofclaim Ex.WW1/3 filed before the Conciliation Officer. Even otherwise Hon'ble Delhi High Court in case law reported as Nagender Sharma Vs Management of M/s Rajasthan Page 8 to 9 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Neeraj Kumar Vs. M/s. Creative Solution (S.M.H.) Pvt. Ltd. ID No. 141/12 Timber Corporation ILR (2006) I Delhi 1030 has observed as under: "13................ The observation in Standard Coal Company v. S. P. Verma, AIR 1952 Pat 56, in paragraph (15), that xxxx xxxx xxxx xxx We are of the view that the decision of the Supreme Court in AIR 1968 SC 529 referred to above, has finally established the proposition that a demand by the workmen must be raised first on the Management and rejected by them before an industrial dispute can be said to arise and exist and that the making of such a demand to the Conciliation Officer and its communication by him to the Management, who reject the same is not sufficient to constitute an industrial dispute. The decisions and dicta of some of the High Courts to the contrary can no longer be considered good law."
In view of above detailed discussion, in my considered opinion, reference in hand deserves to be decided against the workman. It is ordered accordingly. ISSUE No. 2 Relief, if any.
In view of my finding on issue no.1, workman is held to be entitled to no relief. Claim of workman towards alleged unpaid salary cannot be adjudicated upon in these proceedings arising out of a reference in as much as this adjudication has to be limited to terms of reference only. In the terms of reference, there is no issue as regards the alleged unpaid salary. Workman is at liberty to approach appropriate legal authority in this regard.
09. Parties to bear their own costs.
10. Reference is answered accordingly.
11. A copy of the award be sent to the concerned Office of the Deputy Labour Commissioner for further necessary action.
12. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 11.02.2014
(ANAND SWAROOP AGGARWAL)
POLCXI, Karkardooma Courts, Delhi
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