Delhi District Court
Sh. Surender S/O Ramji Operator 9/1994 vs Soran Singh 2006(Lb4)G)X0738 on 30 May, 2013
IN THE COURT OF SH. CHANDRA GUPTA
PRESIDING OFFICER LABOUR COURTX
KARKARDOOMA COURTS, DELHI.
Ref. No.:F.24 (2375)/05/Lab./13881392
Dated :22.02.2007
I.D. No. 24/07
Unique I.D. No.02402C0187592007
(i) Sh.Surendra Ram S/o Sh.Ramji Ram,
(ii)Sh.Bindeswari Lal S/o Sh. Jagdish Lal,
(iii)Sh.Vishwakarma Paswan S/o Sh.Shakaldeep Paswan,
(iv)Sh.Brij Nandan S/o Sh. Bhagera Paswan,
(v) Sh.Hira Lal S/o Late Sh. Masrupan Paswan,
(vi)Sh.Akhilesh S/o Sh. Sunidha Paswan,
(vii)Sh.Avdesh Paswan S/o Sh.Shyamnandan Paswan,
C/o Delhi General Mazdoor Front,
Post Box No.11664, Puspa Bhawan,
New Delhi110062. .................. Workmen
Versus
M/s Plaza General Engineers and Contractors Pvt. Ltd.,
A40, Block B1, Extension Mohan Cooperative
Industrial Area, Near Badarpur Thermal Power Station,
Mathura Road, New Delhi110044. .............. Management
Date of Institution of the case : 05.03.2007
Date on which reserved for Award :14.05.2013
Date on which Award is passed : 30.05.2013
I.D. No. 24/07 Page 1 out of 51
A W A R D
The above workmen, raised an industrial dispute regarding the
termination of their services by the management of M/s Plaza General
Engineers and Contractors Pvt. Ltd.. The appropriate Government on
being satisfied regarding the existence of industrial dispute between
the parties, made a reference for adjudication. The said reference is
as under :
"Whether the services of S/Sh.(1) Surendra
Ram S/o Sh. Ramji Ram (2) Sh. Bindeswari
Lal S/o Sh. Jagdish Lal (3) Vishwakarma
Paswan S/o Sh. Shakaldeep Paswan (4) Brij
Nandan S/o Sh. Bhagera Paswan (5) Hira
Lal S/o Late Sh. Masrupan Paswan (6)
Akhilesh S/o Sh. Sunidha Paswan and (7)
Avdesh Paswan S/o Sh. Shyamnandan
Paswan have been terminated illegally and/or
unjustifiably by the management and if so, to
what sum of money as monetary relief along
with other consequential benefits in terms of
existing Law/Govt. notifications and to what
other relief are they entitled and what
I.D. No. 24/07 Page 2 out of 51
directions are necessary in this respect?"
Thereafter, statement of claim was filed by the workmen. It is
stated by the workmen in their statement of claim that the workmen
whose names and particulars are given in AnnexureA to the present
claim statement had been under the employment of the Opposite
Party/management during period indicated in the accompanying
Annexure to the effect;
S.No. Name Designation Date of joining Wages
1. Sh. Surender S/o Ramji Operator 9/1994 1,600/
Ram
2. Sh. Bindeshwari Lal S/o Operator 4/1994 1,500/
Sh. Jagdish Lal
3. Sh. Vishwakarma Helper 4/1994 1,500/
Paswan S/o Sh.
Shakaldeep Paswan
4. Sh. Brij Nandan S/o Sh. Helper 10/1994 1,500/
Bhagera Paswan
5. Sh. Hira Lal S/o Late Sh. Helper 7/1993 1,500/
Masrupan Paswan
6. Sh. Akhilesh S/o Sh. Operator 5/1993 1,650/
Sunidha Paswan
7. Sh.Avdesh Paswan Helper 3/1994 1,500/
that the workmen had an unblemished record of service; that a series
of accidents occurred in the factory due to poor maintenance of
machinery and inadequate safety measures; that there was a constant
danger to the life and limbs of the workmen and accidents were a
frequent and regular occurrence; that several workers had lost their
I.D. No. 24/07 Page 3 out of 51
legs, hands and fingers etc. in these accidents which were a common
and regular feature; that some of the workmen made police
complaints against the management after serious accidents resulted in
their losing limbs; that in revenge and retaliation the management
resorted to lay off retrenchment, termination etc; that the management
refused to give duty to around 50 workmen on 20.09.1995 against
which a demand letter was sent by the Delhi State Kamgar Union on
29.12.1995 but the management did not reply to the above letter; that
at the time of the termination of services of the workmen, many junior
workers were still in the employment of the company; that no notice
or notice pay was offered or paid to any of the workmen; that
subsequently the workmen moved the conciliation machinery; that
during this period, the management stealthily shifted its operations
elsewhere and the whereabouts of the management were not known to
the workmen for a long time; that the workmen could not locate the
premises from where the management was stealthily operating and
therefore could not follow up the matter any further; that continuous
efforts were made by the workmen but they could not locate the place
from where the management was operating; that thereafter the
workmen who were unemployed could not stay at Delhi for long due
to acute financial problems and went back to their respective villages;
that in the month of December, 2004 some of the workmen who had
I.D. No. 24/07 Page 4 out of 51
put in several years of service with the management of the company
got together and initiated the present proceedings when they came to
know that after a gap of 12 years the management was still operating
from the same premises in a concealed manner; that the workmen
thereafter initiated conciliation proceedings in the matter which ended
in failure and the dispute has therefore been referred to this Hon'ble
Court for adjudication; that the applicant workmen are unemployed
after the termination of their services by the management; that they
could not get any alternative employment despite their best efforts;
that they had searched for a alternative employment in Delhi and
surrounding areas but could not get any alternative employment; that
the delay in initiating the present proceedings was on account of the
fact that the whereabouts of the management was not known to the
workman for a long time; that the workmen came to know about
commencement of the production work by the management at the
same place only in the year 2004; that as has already been submitted
the delay in initiating the present proceedings is due to the plight of
the workmen, their economic distress and on account of the fact that
the management concealed their operations for a long time; that under
the above circumstances the delay in initiating the present
proceedings be liable to be condoned and the workmen are entitled to
be reinstated in service with continuity of service, full back wages
I.D. No. 24/07 Page 5 out of 51
and all other consequential benefits.
Notice of the filing of statement of claim was sent to
the management who had appeared and contested the claim filed by
the workmen by filing its written statement. In the written statement
filed by the management, it has taken the preliminary objections that
the workmen namely Surendra Ram, Bindeshwari Lal, Vishwakarma
Paswan, Brij Nandan, Hira Lal, Akhilesh and Avdesh Paswan never
served the management in any capacity of an employee; that there
existed no relationship of employer and employee between the
parties; that hence the claim of the workmen was liable to be
dismissed; that the present matter was full of delay and laches on the
part of the workmen; that in claim statement, the workmen allege
refusal of duty on 20.09.1995 and filing of claim before conciliation
officer after 10 years; that the workmen had themselves admitted in
claim that they did not know the whereabouts of the management for
a long time; that it was very impossible that the workmen remained
idle since 1995 and were finding whereabouts of the management;
that hence the claim of the workmen was liable to be dismissed. On
merits it is stated that there existed no relationship of employer and
employee between the workmen and the management; that the present
Directors namely Sh. Mahender Kumar Aggarwal and Sh. Devender
Kumar Aggarwal took over the company in the year April, 2002 and
got it covered under ESI vide code No. 10/60468/67 in the year 2002;
I.D. No. 24/07 Page 6 out of 51
that since then the respondent company was running continuously;
that the present management did not have any records pertaining to employees employed by the previous management; that the present management did not inherit any workmen from the previous management; that in fact the present management purchased the plant with machinery in completely closed condition; that the claimant workmen might have developed malafide intentions in initiating dispute against the present management; that the allegations of accident were baseless and vague; that the present owners did not know about the activities of the previous management and the workmen employed by them; that the present management did not inherit any workmen from the previous management; that the present Directors only purchased the machinery and premises and restarted the company de.novo; that the liability of any of the previous employee if any was of the previous management; that since the present owners took over w.e.f. April, 2002 and they were continuously running the said company, the management did not know about the affairs of the company prior to April, 2002; that the workmen had malafide intentions; that the workmen be put to strict proof to prove their employment with the management; that the present matter was full of delay and laches on the part of the workmen; that in claim statement, the workmen allege refusal of duty I.D. No. 24/07 Page 7 out of 51 on 20.09.1995 and filing of claim before conciliation officer after 10 years; that the appropriate Government should have rejected the reference after 10 years; that it was highly improbable that the workmen did not get any employment in last 10 years; that the workmen who slept over the matter for a long time were not entitled to any relief from this Hon'ble Court. All other allegations are denied. Hence it is prayed that the statement of claim be dismissed.
No rejoinder to the written statement of the management was filed on behalf of the workmen.
On the pleadings of the parties, vide order dated 20.02.2008, the following issues were framed:
(i)Whether there exists relationship of employer or employee between the parties?
(ii)Whether the claim of the workmen is liable to be dismissed on account of delay and laches in view of preliminary objection No.2 of the W.S.?
(iii)As per terms of reference.
(iv)Relief.
No other issue arose or pressed for and the case was adjourned for workman evidence.
In support of their case workmen S/Sh.Surendra Ram, Akhilesh I.D. No. 24/07 Page 8 out of 51 Kumar, Brij Nandan, Bindeshwari Lal, Avdesh Paswan,Vishwakarma Paswan and Hira Lal appeared as WW1 to WW7 in workmen evidence, tendered their affidavits by way of evidence Exts.WW1/A to WW7/A as also relied upon documents Exts. WW1/1 to WW1/14 in their workmen evidence, on record.
After examining WW7, workmen evidence has been closed, on record.
In support of its defence, the management has examined Sh.Devender Kumar Aggarwal, Director of the management as MW1 in management evidence, who has tendered his affidavit by way of evidence Ex.MW1/A as also relied upon documents Exts.MW1/1 to MW1/4 (Ex.MW1/1 Colly and Ex.MW1/3 are exhibited subject to production of their original on the next date of hearing).
After examining MW1, evidence on behalf of the management has been closed, on record.
Final arguments have been heard. The management has also filed written submissions as also relied upon citations viz. Union of India Vs. Soran Singh 2006(LB4)G)X0738, Delhi High Court, Ramesh Kumar Vs. Delhi Jal Board, 2012 LLR 713 Delhi High Court, Delhi Transport Corporation Vs. Presiding Officer & Others 2012 LLR 683 Delhi High Court (D.B.), Ravi N.Tikoo Vs. Deputy Commissioner (S.W.) & Others 2006 LLR 496 Delhi High Court, M/s I.D. No. 24/07 Page 9 out of 51 Shivam Motors Pvt. Ltd. Vs. State of Chhattisgarh and Ors.2005 LLR 1217 Chhattisgarh High Court.
My findings issuewise are as under: Issue No. 1 It is seen from the record that the workmen S/Sh.Surendra Ram, Akhilesh Kumar, Brij Nandan, Bindeshwari Lal, Avdesh Paswan,Vishwakarma Paswan and Hira Lal have appeared as WW1 to WW7 in workmen evidence respectively, tendered their affidavits by way of evidence Exts.WW1/A to WW7/A respectively as also relied upon documents Exts.WW1/1 to WW1/14 in their workmen evidence, on record. In their affidavits by way of evidence they have reiterated the contents of their statement of claim to the effect that they had joined the services of the management in September, 1994/ year 1994/ October, 1994/ April, 1993/ March, 1994/ April,1994/ and year 1994 respectively as Operator/Operator/Helper/Operator/Helper/Helper/Operator respectively on the last drawn monthly wages of Rs. 1,600/(WW1) and Rs.1,500/ (WW2 to WW7) each; that in the manufacturing establishment of the management there were series of accidents due to inadequate safety measures; that there was constant danger to the life and limbs of the workmen and accidents were a common occurrence on the shops floor; that several workers lost their legs, I.D. No. 24/07 Page 10 out of 51 hands and fingers etc. in these accidents; that some of the workmen registered FIRs against the management after serious accidents resulted in injuries to the workmen; that in course of time the demand for adequate safety measures gained momentum which enraged the management; that in revenge and retaliation the management resorted to lay off, retrenchment, termination etc; that the management refused to give duty to around 50 workmen including them with effect from 29.09.1995 regarding which a demand letter was sent by the Delhi State Kamgar Union on behalf of the workmen including them on 20th September, 1995 but the management, however, did not reply to the demand notice; that at the time of the termination of their services by the management, many workmen junior to them were still in the employment of the management; that no notice or notice pay in lieu was offered or paid to them; that after the termination of their services, the workmen approached the Conciliation Officer and raised an Industrial Dispute challenging their termination; that during that period, the management stealthily shifted its operations elsewhere and the whereabouts of the management were not known to any one of them for a long time despite their best efforts; that the workmen could not locate the premises from where the management was stealthily operating and therefore notices could not be served on the management and consequently the conciliation proceedings dragged I.D. No. 24/07 Page 11 out of 51 on endlessly; that the whereabouts of the management were not known to them for a long time; that all of them were in great financial distress and could not stay for long time in Delhi and make enquiries about the whereabouts of the management; that the management had purposefully concealed their whereabouts; that since they had no means of livelihood and they were unable to find any alternative employment at Delhi they left Delhi for their native village; that though continuous efforts were made by them to locate the new address from where the management was operating, they could not succeed till 2004; that in December, 2004 some of them came to know that the management had again started operating from the same premises after a gap of 12 years and initiated the present proceedings; that they initiated conciliation proceedings in the matter and the same ended in failure and the present dispute had been referred for adjudication; that after the termination of their services by the management they could not get any alternative employment despite their best efforts; that they had searched for an alternative employment in Delhi and surrounding areas but could not get an alternative employment.
Ex.WW1/1 being photocopy of an alleged ESIC Identity Card in respect of WW1 Sh. Surender Ram, Ex.WW1/2 being photocopy of an alleged ESIC form in respect of the WW1 pertaining I.D. No. 24/07 Page 12 out of 51 to period 17.06.1995 to 09.11.1995, Ex.WW1/3 being photocopy of alleged letter dated 25.06.1995 of the union to the SHO P.S. Badarpur, Okhla, New Delhi, Ex.WW1/4 being photocopy of alleged letter dated 25.07.1995 of the union to the Assistant Labour Commissioner, Giri Nagar, Labour Office, New Delhi, Ex.WW1/5 being photocopy of alleged letter dated 02.09.1995 of the union to the SHO, P.S. Badarpur, New Delhi, Ex.WW1/6 being photocopy of alleged letter dated 09.09.1995 of the union to the SHO P.S. Badarpur, New Delhi, Ex.WW1/7 being photocopy of alleged statement of claim of the alleged workmen through union before the Conciliation Officer, Giri Nagar, New Delhi, Ex.WW1/8 being photocopy of alleged letter dated 20.09.1995 of alleged workmen through union to the management, Ex.WW1/9 being photocopy of alleged letter dated 26.09.1995 of the union to the Deputy Labour Commissioner, 15, Rajpur Road, Delhi, Ex.WW1/10 being photocopy of alleged letter dated 29.09.1995 of the Assistant Labour Commissioner/Conciliation Officer Govt. of NCT of Delhi, Office of the Assistant Labour Commissioner, South District, Giri Nagar, Kalkaji, New Delhi110019 to the management, Ex.WW1/11 being photocopy of letter dated 11.10.1995 of the Assistant Labour Commissioner/Conciliation Officer Govt. of NCT of Delhi, Office of the Assistant Labour Commissioner, South District, Giri Nagar, I.D. No. 24/07 Page 13 out of 51 Kalkaji, New Delhi110019 to the management, Ex.WW1/12 being photocopy of alleged letter dated 22.12.1995 of the union to the SHO, Police Station Badarpur, New Delhi, Ex.WW1/13 being photocopy of alleged complaint dated 29.12.1995 of the union to the ACP Kalkaji, New Delhi110019, Ex.WW1/14 being photocopy of complaint dated 29.12.1995 of the union to the SHO, Police Station Badarpur, New Delhi.
These witnesses have been cross examined at length on behalf of the management in the workmen evidence in which WW1 Sh. Surendra Ram has deposed that he joined the management in October, 1994; that he met with an accident in the factory on 17.06.1995 in which two fingers of his right hand amputated and he made a police complaint in this regard; that thereafter also he was not taken on duty; that he did not remember exactly when he went to the management after the accident but it was one month after the accident; that he could not tell the names of the owners of the company since they never used to come to the establishment; that they had dealings with the managers; that the company was closed in the year 1995 itself; that at the time of closure of management, the services of all the workmen were dispensed with by the management; that he was not aware whether the present Directors Sh. Mahender Kumar Aggarwal and Sh.Devender Kumar Aggarwal had purchased I.D. No. 24/07 Page 14 out of 51 the company in the year April, 2002; that he did not know the above directors of the company; that in the year 2004 he came to know that the work in the company had been started; that they initiated the proceedings in the present case in the year 2004 before Conciliation Officer; that he did not have any document to show that they had initiated the present case in the year 2004 other than the documents already filed on record of the present case; that he did not know about the present Directors of the company; that the present Directors were the relatives of the previous management; that he did not know about the relationship between the present directors and the previous management; that it was wrong to suggest that there was no employer and employee relationship between the present management and himself; that he did not know whether their responsibility had been taken by the previous management while selling the plant and machinery to the present management; that since,1995 till he filed the present dispute he lived in his village; that it was wrong to suggest that he had filed a false case against the present management; that it was wrong to suggest that present management was not liable to gave him any employment; that it was correct that the documents Exts.WW1/3 to WW1/9 do not bear his signatures; that the same was his reply regarding documents Exts.WW1/12 to WW1/14; that it was wrong to suggest that he was deposing falsely.
I.D. No. 24/07 Page 15 out of 51 WW2 Sh.Akhilesh Kumar has deposed in his cross examination on behalf of the management in workmen evidence that he did not remember the date and month when he had joined the management but it was 1994; that he did not remember when he was not taken on duty since it was a very old case; that he could not tell the names of the owners of the company since they never used to come to the establishment; that they had dealings with the managers; that the company was closed in the year, 1995 itself; that at the time of closure of management, the services of all the workmen were dispensed with by the management; that he was not aware whether the present Directors Sh. Mahender Kumar Aggarwal and Sh.Devender Kumar Aggarwal had purchased the company in the year April, 2002; that he did not know the above directors of the company; that he did not remember when they had initiated the present proceedings in the Labour Office; that he had not brought any document to show that he was employed with the management. Vol. He had kept the ESI Card at home; that he did not know about the present Directors of the company; that he did not know anything about the present management; that it was wrong to suggest that there was no employer and employee relationship between the present management and himself; that he did not know whether their responsibility had been taken by the previous management while I.D. No. 24/07 Page 16 out of 51 selling the plant and machinery to the present management; that since, 1995, till he filed the present dispute he lived in his village; that it was wrong to suggest that he had filed a false case against the present management; that it was wrong to suggest that present management was not liable to give him any employment; that it was correct that the documents Exts.WW1/3 to WW1/9 did not bear his signatures; that the same was his reply regarding documents Exts.WW1/12 to WW1/14; that it was wrong to suggest that he was deposing falsely.
WW3 Sh. Brij Nandan Paswan has deposed in his cross examination on behalf of the management that he did not remember the date and month when he joined the management but it was 1994; that he was terminated by the management in the year 1995 but he did not remember the date and month of his termination as he was totally illiterate; that he could not tell the names of the owners of the company since they never used to come to the establishment; that they had dealings with the managers; that he did not know when the company was closed since he went back to his village after his termination from services; that at the time of closure of management, the services of some of the workmen were terminated by the management and some workmen were allowed to continues with the work; that he was not aware whether the company was completely closed in the year 1995; that he was not aware whether the present I.D. No. 24/07 Page 17 out of 51 Directors Sh. Mahender Kumar Aggarwal and Sh. Devender Kumar Aggarwal had purchased the company in the year April, 2002; that he did not know the above directors of the company; that they had initiated the present proceedings in the Labour Office in the year 2002; that he had not brought any document to show that he was employed with the management; that he did not know about the present Directors of the company; that he did not know anything about the present management; that it was wrong to suggest that there was no employer and employee relationship between the present management and himself; that he did not know whether their responsibility had been taken by the previous management while selling the plant and machinery to the present management; that since 1995 till he filed the present dispute, he lived in his village; that it was wrong to suggest that he had filed a false case against the present management; that it was wrong to suggest that the present management was not liable to give him any employment; that it was correct that the documents Exts.WW1/3 to WW1/9 did not bear his signatures; that the same was his reply regarding documents Exts. WW1/12 to WW1/14; that it was wrong to suggest that he was deposing falsely.
WW4 Sh. Bindeshwar Lal has deposed in his cross examination on behalf of the management that he joined the I.D. No. 24/07 Page 18 out of 51 management on 01.04.1993; that he was terminated by the management on 17.06.1995; that the owner of the company was Sh. D.K.Gupta while he was in the employment of the company; that the company was closed in the year 1995 itself; that at the time of termination of their services, the company was running; that at the time of closure of management, 50 employees were terminated by the management; that he was not aware whether the present Directors Sh. Mahender Kumar Aggarwal and Sh. Devender Kumar Aggarwal had purchased the company in the year April, 2002; that he did not know the above Directors of the company; that he did not remember when they had initiated the present proceedings in the Labour Office; that he had not brought any document to show that he was employed with the management. Vol. He had kept the ESI Card at home; that he did not know about the present Directors of the company; that he did not know anything about the present management; that it was wrong to suggest that there was no employer and employee relationship between the present management and himself; that he did not know whether their responsibility was taken by the previous management while selling the plant and machinery to the present management; that since 1995 till he filed the present dispute he lived in his village; that it was wrong to suggest that he had filed a false case against the present management; that it was wrong to suggest that the present I.D. No. 24/07 Page 19 out of 51 management was not liable to give him any employment; that it was correct that the documents Exts.WW1/3 to WW1/9 did not bear his signatures; that the same was his reply regarding documents Exts.WW1/12 to WW1/14; that it was wrong to suggest that he was deposing falsely.
WW5 Sh. Avdesh Paswan has deposed in his cross examination on behalf of the management that he was illiterate; that he did not remember the date and month when he had joined the management but it was 1994; that he did not remember when he had not been taken on duty since it was a very old case; that he could not tell the names of the owners of the company since they never used to come to the establishment; that he did not remember when the company was closed; that at the time of closure of management, the services of all the workmen were dispensed with by the management; that he was not aware whether the present Directors Sh. Mahender Kumar Aggarwal and Sh.Devender Kumar Aggarwal had purchased the company in the year April, 2002; that he did not know the above directors of the company; that he did not remember when they had initiated the present proceedings in the Labour Office; that he had not brought any document to show that he was employed with the management. Vol. He had kept the ESI Card at home; that he did not know about the present Directors of the company; that he did not I.D. No. 24/07 Page 20 out of 51 know anything about the present management; that it was wrong to suggest that there was no employer and employee relationship between the present management and himself; that he did not know whether their responsibility had been taken by the previous management while selling the plant and machinery to the present management; that since 1995 till he filed the present dispute, he lived in his village; that it was wrong to suggest that he had filed a false case against the present management; that it was wrong to suggest that present management was not liable to give him any employment; that it was correct that the documents Exts.WW1/3 to WW1/9 did not bear his signatures; that the same was his reply regarding documents Exts.WW1/12 to WW1/14; that it was wrong to suggest that he was deposing falsely.
WW6 Sh. Vishwakarma Paswan has deposed in his cross examination on behalf of the management that he did not remember the date and month when he had joined the management but it was 1994; that he did not remember when he had not been taken on duty since it was a very old case; that he could not tell the names of the owners of the company since they never used to come to the establishment; that they had dealings with the managers; that he did not know the company was closed; that at the time of closure of the management, the services of all the workmen were dispensed I.D. No. 24/07 Page 21 out of 51 with by the management; that he was not aware whether the present Directors Sh. Mahender Kumar Aggarwal and Sh.Devender Kumar Aggarwal had purchased the company in the year April, 2002; that he did not know the directors of the company; that he did not now remember when they had initiated the present proceedings in the Labour Office; that he had not brought any document to show that he was employed with the management. Vol. He had kept the ESI Card at home; that he did not know the present Directors of the company; that he did not know anything about the present management; that it was wrong to suggest that there was no employer and employee relationship between the present management and himself; that he did not know whether their responsibility had been taken by the previous management while selling the plant and machinery to the present management; that since 1995 till he filed the present dispute, he had lived in Delhi; that he was working as Construction Labour on daily wages basis; that he had been able to earn approximately Rs. 3000/ per month by doing above job; that it was wrong to suggest that he had filed a false case against the present management; that it was wrong to suggest that the present management was not liable to give him any employment; that it was correct that the documents Exts.WW1/3 to WW1/9 did not bear his signatures; that the same was his reply regarding documents Exts.WW1/12 to WW1/14; that it was I.D. No. 24/07 Page 22 out of 51 wrong to suggest that he was deposing falsely.
WW7 Sh. Hira Lal has deposed in his cross examination on behalf of the management that he did not remember the date and month when he had joined the management but it was 1994; that he did not remember when he had not been taken on duty since it was a very old case; that he could not tell the names of the owners of the company since they never used to come to the establishment; that they had dealings with the managers; that he did not know the company was closed; that at the time of closure of the management, the services of all the workmen were dispensed with by the management; that he was not aware whether the present Directors Sh. Mahender Kumar Aggarwal and Sh.Devender Kumar Aggarwal had purchased the company in the year April, 2002; that he did not know the directors of the company; that he did not now remember when they had initiated the present proceedings in the Labour Office; that he had not brought any document to show that he was employed with the management. Vol. He had kept the ESI Card at home; that he did not know about the present Directors of the company; that he did not know anything about the present management; that it was wrong to suggest that there was no employer and employee relationship between the present management and himself; that he did not know whether their responsibility had been taken by the previous I.D. No. 24/07 Page 23 out of 51 management while selling the plant and machinery to the present management; that since 1995 till he filed the present dispute he lived in his village ad he was still living in his village; that whenever he got job of a labourer in village he did the same; that he could not quantify his earnings in a month; that it was wrong to suggest that he had filed a false case against the present management; that it was wrong to suggest that present management was not liable to give him any employment; that it was correct that the documents Exts.WW1/3 to WW1/9 did not bear his signatures; that the same was his reply regarding documents Exts.WW1/12 to WW1/14; that it was wrong to suggest that he was deposing falsely.
Thereafter, workmen evidence has been closed, on record.
In management evidence, the management has led the evidence of Sh. Devender Kumar Aggarwal, Director of the management, who has appeared in the management evidence as MW1, tendered his affidavit by way of evidence Ex.MW1/A as also relied upon documents Exts. MW1/1 to MW1/4 (Ex.MW1/1 Colly and Ex.MW1/3 were exhibited subject to production of their original on the next date of hearing). In his affidavit by way of evidence Ex. MW1/A, the MW1 Sh. Devender Kumar Aggawal has deposed that he was one of the Directors of the respondent company and was well I.D. No. 24/07 Page 24 out of 51 aware about the facts and circumstances of the case and therefore competent to depose the same; that the workmen namely S/Sh. Surendra Ram, Bindeshwari Lal, Vishwakarma Paswan, Brij Nandan, Hira Lal, Akhilesh and Avdesh Paswan had never served the management in capacity of an employee; that there existed no relationship of employer and employee between the parties; that without prejudice to the above, the present matter was full of delay and laches on the part of the workmen; that in the claim statement, the workmen allege refusal of duty on 20.09.1995 and filing of claim before conciliation officer after 10 years; that the workmen have themselves admitted in claim that they did not know the whereabouts of the management for a long time; that it was very impossible that the workmen remained idle since 1995 and were finding whereabouts of the management; that the company had been lying closed since 27.11.1995; that the company applied for fresh registration under Sales Tax in the year 1999 and the same was granted; that some activities got started in the company in April, 2000; that four to six employees were recruited in order to bring back the company in mainstream; that it took almost two years in order to enable the company to properly start production w.e.f. April, 2002; that the company applied for fresh registration under ESI scheme and the same was granted in the year 2002 vide code no.10/60468/67; that the I.D. No. 24/07 Page 25 out of 51 present management did not have any records pertaining to employees employed in the company in the year 1995; that the present management did not inherit any workmen from the previous management; that in fact the present management joined as Directors while the plant was lying in a completely closed condition and machinery in junk condition; that the previous management submitted a letter dated 12.12.1995 to labour department regarding closure of company; that the present Directors did not know about the activities of the previous management and the workmen employed by them; that the liability of any of the previous employee, if any, was of the previous management; that the workmen had malafide intentions and they be put to strict proof to prove their employment with the management.
Ex.MW1/1 Colly being copy of certificate of registration in respect of the management under the Central Sales Tax (Registration and Turnover) Rules 1957, Form (B) dated 10.01.2000 along with the copy of certificate of registration in respect of the management under the Delhi Sales Tax Rules 1975, Form ST8 dated 10.01.2000 along with authorization under Delhi Sales Tax Rules 1975, Form ST37 Office of the Sales Tax Officer, Ward No. 94, New Delhi dated 10.01.2000 showing the names of the Directors of the management company as S/Sh. R. K. Aggarwal and Mahender Kumar I.D. No. 24/07 Page 26 out of 51 Aggarwal on the same as also another photocopy of certificate of registration in respect of the management under the Delhi Sales Tax Rules 1975, Form ST8 dated 10.01.2000 with the name Sh. Devender Kumar Aggarwal as Director of the management company having been added w.e.f. 31.03.2008 on the back side of the same; Ex.MW1/2 Colly being copy of letter dated 12.12.1995 of the management to the Assistant Labour Commissioner, Tilak Khand, Govind Puri, Kalkaji, New Delhi110019 to the effect that the management had been closed w.e.f. 27.11.1995 along with copies of postal registration receipt and AD Card in respect of the addressee thereof; Ex.MW1/3 being copy of certificate of ImporterExporter Code (IEC) in respect of the management of the Govt. of India, Ministry of Commerce, Office of Joint Director General of Foreign Trade, 6/7, B.K. Roy Courts, Asaf Ali Road, New Delhi110002 dated 08.01.2002; Ex.MW1/4 Colly being copy of registration of the management under the Employees State Insurance Act, 1948 with the Regional Office, ESIC, DDA ShoppingcumOffice Complex, Rajender Bhawan, Rajender Place, New Delhi110008 dated 03.10.2002 in respect of its employees along with copies of appendices of the said office to the management including copy of application of the management dated 05.08.2002 to the Regional Director, ESIC, III & IV Floor, Rajendra Bhawan, Rajendra Place, I.D. No. 24/07 Page 27 out of 51 New Delhi for allotment of ESIC Code Number in respect of the management consequent to submission of the ESIC Registration Form No.01 in prescribed proforma duly filled in in all respects to the said authority in this regard in respect of its employees.
This witness has been cross examined at length on behalf of the workmen in management evidence, in which he has deposed that the company was never wound up under the Company's Act; that he had taken over the company from Sh. Narender Kumar, Director; that however, he did not know his address. Again said he had to check up the address; that when he had taken over the company, there were two Directors in the company; that he had no knowledge about the second Director; that presently, there were three Directors, namely himself, Sh. Satish Kumar Aggarwal and Ms. Divya Aggarwal; that they held periodic meetings for the board of Directors of the Company; that there was a Board Resolution to appear and depose in the present case; that he did not remember the date when the Resolution was passed; that it was wrong to suggest that there had been no such Resolution and that is why the same had not been brought on record; that it was further incorrect to suggest that he had no authority to represent the company in the present proceedings; that it was also incorrect to suggest that he had nothing to do with the management and that is why no documents were I.D. No. 24/07 Page 28 out of 51 produced in this regard; that he had not entered into any agreement with the previous management to take over the company; that it was incorrect to suggest that there had been no change of management that is why there was no agreement to take over the company as submitted by him in his affidavit; that the registered office of the company was the same address of the factory; that it was wrong to suggest that new ESI registration was got done with the sole purpose to show that the company had started its operation afresh; that it was wrong to suggest that the management was in possession of all the previous documents but the same were not being produced deliberately and intentionally; that it was correct that the annual returns of the company were being filed every year with the Registrar of Companies, Delhi; that they did not call the old workers when they started the operations in 2000. Vol. They took over the company in a closed condition; that it was wrong to suggest that the management temporarily suspended its operations for two years only w.e.f. 1995 and was operating in some other premises; that it was wrong to suggest that all the claimant/workmen were employed with the management; that on 13.12.2010, he had brought the originals of Ex.MW1/1 Colly and Ex.MW1/3 (OSR); that it was incorrect to suggest that the said documents were fabricated; that it was incorrect to suggest that he was deposing falsely.
I.D. No. 24/07 Page 29 out of 51 Thereafter, the management evidence has been closed, on record.
It is seen from the record that though the workmen WW1 to WW7 have alleged that they were under the employment of the management w.e.f. September, 1994/ year, 1994/ October, 1994/ April,1993/ March,1994/ April,1994/ year, 1994 respectively as Operator/ Operator/ Helper/ Operator/ Helper/ Helper /Operator respectively on the last drawn monthly wages of Rs.1,600/(WW1) and Rs. 1,500/ (WW2 to WW7 each) by way of their affidavits by way of evidence Exts.WW1/A to WW7/A and that their services had allegedly been illegally terminated by the management w.e.f. 29.09.1995 (though in the statement of claim the date 20.09.1995 has been mentioned by the workmen in this regard) without following the due procedure as laid down in law in this regard and in violation of the provisions of Section 25 F of the Industrial Disputes Act, 1947 (as amended upto date) allegedly applicable to the factum of termination of the services of the workmen on the part of the management on the date alleged viz. 29.09.1995 in the instant case, however, no evidence in this regard in the shape of proof of receipt of salary or wages for the period alleged or order or record of appointment or engagement for the period alleged in respect of the workmen with the management has been produced on the part of the workmen in their workmen I.D. No. 24/07 Page 30 out of 51 evidence, on record, or even any letter of termination of services of the workmen on the part of the management on the date alleged, apart from bald allegations on the part of the workmen in this regard in their affidavits by way of evidence Exts.WW1/A to WW7/A, as abovesaid, in the face of denial of the said allegations on the part of the management, as abovesaid, on the ground that the workmen had never been in the employment of the management for the period alleged, on the post alleged and on the last drawn salary/wages alleged by way of its written statement and crossexamination of the workmen in workmen evidence apart from the leading of the testimony of Sh. Devender Kumar Aggarwal, Director of the management as MW1 in management evidence by way of his affidavit by way of evidence Ex.MW1/A along with Exts.MW1/1 Colly, MW1/2 Colly, MW1/3 and MW1/4 in this regard, as abovesaid, on record, the onus of proving of which was admittedly upon the workmen as held by the Hon'ble High Court of Delhi vide citation viz. 2006 LLR 851 Delhi High Court; Automobile Association of Upper India Vs. P.O. Labour Court II & Anr. vide which it has been held:
"It is well settled that the primary burden of proof to establish a plea rests on a person so claiming. In this behalf reference can be I.D. No. 24/07 Page 31 out of 51 appropriately made to the judicial pronouncement in III (2001) SLT 561: (2001) 9 SCC 713 (715), State of Gujarat & Ors. V. Pratamsingh Narsinh Parmar, III (2004) SLT 180: 2004 LLR 351 (Para 49), Nilgiri Coop. Marketing Society Ltd. v. State of Tamil Nadu; 2001 LLR 148, Dhyan Singh V. Raman Lal; 1996 Lab. I.C. 202, Swapan v.
First Labour Court, West Bengal; and 1973 Lab. I.C. 398 N.C., John v. TTS & CE Workers Union. Thus burden lies on a person claiming the establishment to be an industry to place positive facts before the Court in this behalf. For this reason, the primary burden to establish the relationship of employment also lies on the workman who is claiming the same."
It has further been held vide the above mentioned citation that :
"Engagement and appointment in service can be established directly by the existence I.D. No. 24/07 Page 32 out of 51 and production of an appointment letter, a written agreement or by circumstantial evidence of incidental and ancillary records which would be in the nature of attendance register, salary registers, leave record, deposit of provident fund contribution and employees state insurance contributions etc. The same can be produced and proved by the workman or he/she can call upon and cause the same to be produced and proved by calling for witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to call such records in respect of his/her employment to be produced.
In these circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman".
as also it is further seen from the record that the workmen have admitted in their cross examination on behalf of the I.D. No. 24/07 Page 33 out of 51 management interalia that the company was closed in the year 1995 itself; that at the time of closure of management, the services of all the workmen were dispensed with by the management; that they were not aware whether the present Directors S/Sh. Mahender Kumar Aggarwal and Devender Kumar Aggarwal had purchased the company in the year April, 2002; that they did not know the above Directors of the company; that in the year 2004, they came to know that the work in the company had been started; that they initiated the proceedings in the present case in the year 2004 before Conciliation Officer; that they did not have any document to show that they had initiated the present case in the year 2004 other than the documents already filed on record of the present case; that they did not know about the present Directors of the company;............; that they did not know about the relationship between the present Directors and the previous management;..........;that they did not know whether their responsibility was taken by the previous management while selling the plant and machinery to the present management;............;that it was correct that the documents Exts.WW1/3 to WW1/9 did not bear their signatures; that the same was their reply regarding documents Exts. WW1/12 to WW1/14; that they had not brought any document to show that they were I.D. No. 24/07 Page 34 out of 51 employed with the management.
I further find from the record that the documents Exts. WW1/1 to WW1/14 relied upon by the workmen in support of their allegations of being in the employment of the management for the period alleged/ on the post alleged/ last drawn wages alleged, do not go to prove the factum of relationship of employer and employee between the management and the workmen being photocopies of an alleged ESIC Identity Card in respect of WW1, alleged ESIC form in respect of the WW1 pertaining to period 17.06.1995 to 09.11.1995, alleged letters/complaints of the union to certain authorities like the Assistant Labour Commissioner, Giri Nagar, Labour Office, New Delhi and SHO, Police Station Badarpur, New Delhi, alleged letters of the Assistant Labour Commissioner/Conciliation Officer, Government of NCT Of Delhi, Office of the Assistant Labour Commissioner, South District, Giri Nagar, Kalkaji, New Delhi to the management and not in the nature of documents viz. appointment letter, written agreement or circumstantial evidence of incidental and ancillary records in the nature of attendance registers, salary registers, leave record, deposit of provident fund contribution and employees state insurance contributions etc. or even any termination letter of the management terminating the services of the workmen on the date alleged which go towards establishing the relationship of employer I.D. No. 24/07 Page 35 out of 51 and employee between the workmen and the management (Automobile Association of Upper India Vs. P.O. Labour Court II & Anr. (supra) refers), which I find from the record are admittedly not bearing the signatures of the workmen as admitted by them in their cross examination on behalf of the management in workmen evidence, as abovesaid, or even their names on the same, except Exts. WW1/1 and WW1/2 which are allegedly in respect of the WW1 Sh.Surendra Ram, apart from being mere photocopies of their alleged originals and thus, I find from the record, not proved in accordance with law in the workmen evidence, on record, in the absence of production of their originals on the part of the workmen in workmen evidence, on record.
It is further seen from the record that no allegation(s) in respect of violation of provisions of Section 25 G and H of the Industrial Disputes Act, 1947 (as amended upto date) on the part of the management qua the alleged termination of services of the workmen on the part of the management on the date alleged have been made by the workmen in their workmen evidence by way of their affidavits by way of evidence Exts.WW1/A to WW7/A, on record, apart from the allegation of their services having been illegally terminated by the management on 20/29.09.1995 in alleged violation of the provisions of Section 25 F of the Industrial Disputes I.D. No. 24/07 Page 36 out of 51 Act, 1947 (as amended upto date) allegedly applicable to the factum of the alleged termination of the services of the workmen on the part of the management on the date alleged viz.20/29.09.1995 in the instant case which admittedly in order to be applicable to the factum of the alleged termination of the services of the workmen on the part of the management on the date alleged viz.20/29.09.1995 in the instant case, the workmen have admittedly to prove, on record, that they had worked for a period of 240 days with the management in the year preceding the date of alleged termination of their services on its part viz.20/29.09.1995 as alleged in the instant case, as required under the provisions of Section 25 B of the Industrial Disputes Act, 1947 (as amended upto date), the onus of proving of which factum was admittedly upon the workmen as held by the Hon'ble Supreme Court of India vide citations viz. Surendernagar District Panchayat Appellant Vs. Dahyabhai AmarsinhRespondent (2005) 8 Supreme Court Cases 750; Range Forest Officer Vs. S.T. Hadimani (2002) 3 SCC 25: 2002 SCC (L&S) 367; Rajasthan State Ganganagar S. Mills Ltd. Vs. State of Rajasthan, (2004) 8 SCC 161: 2004 SCC (L & S) 1055; Municipal Corpn. Faridabad Vs. Siri Niwas (2004) 8 SCC 195: 2004 SCC (L & S) 1062; M.P. Electricity Board Vs. Hariram, (2004) 8 SCC 246: 2004 SCC (L&S) 1092 and Ranip Nagar Palika Appellant Vs. Babuji Gabhaji Thakore and Others I.D. No. 24/07 Page 37 out of 51 Respondents (2007) 13 SCC 343, towards which end I find from the record that no evidence whatsoever in the shape of proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period has been produced on the part of the workmen apart from their bald allegation in this regard by way of their affidavits by way of evidence Exts.WW1/A to WW7/A, as abovesaid, which are not sufficient in view of the provisions of citation viz. Range Forest OfficerAppellant Vs. S.T. Hadimani Respondent (supra), to the effect: " It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of I.D. No. 24/07 Page 38 out of 51 appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside."
It is further seen from the record that it is the case of the management that the management as it existed in the year 1995 when the services of the workmen are alleged to have been terminated on its part on 20/29.09.1995, as alleged by the workmen, had closed down its manufacturing activities in the year, 1995 itself towards which end it is relying upon a letter dated 12.12.1995 allegedly written by the management to the Assistant Labour Commissioner, Tilak Khand, Giri Nagar, Kalkaji, New Delhi110019, copy of which is Ex.MW1/2, on record, which factum has been admitted by the workmen in their cross examination on behalf of the management in workmen evidence, when the WW1 Sh. Surendra Ram states that the company was closed down in the year 1995 itself; that at the time of closure of management, the services of all the workmen were dispensed with by the management, the WW2 Sh. Akhilesh states that the company was closed in the year 1995 itself; that at the time of closure of management, the services of all the workmen were dispensed with by the management. Similarly, it is seen from the record that the WW3 has deposed that at the time of closure of I.D. No. 24/07 Page 39 out of 51 management he did not know when the company was closed since he had gone back to his village after the termination of his services; that at the time of closure of the management, the services of some of the workmen were terminated by the management and some workmen were allowed to continue with the work as also WW4 Sh. Bindeshwar Lal has deposed in his cross examination on behalf of the management in workmen evidence that the company was closed in the year 1995 itself; that at the time of termination of their services, the company was running; that at the time of closure of management, 50 employees were terminated by the management, WW5 Sh. Avdesh Paswan has deposed in his cross examination on behalf of the management in workmen evidence in this regard that he did not remember when the company was closed; that at the time of closure of management, the services of all the workmen were dispensed with by the management as also WW6 Sh. Vishwakarma Paswan and WW7 Sh. Hira Lal have deposed in their cross examination on behalf of the management in workmen evidence that they did not know that the company was closed; that at the time of closure of the management, the services of all the workmen were dispensed with by the management. Thus, it is seen from the record that it has been admitted almost by all the workmen that the management had closed down in the year 1995 itself and accordingly, the services of almost I.D. No. 24/07 Page 40 out of 51 all the workmen had been dispensed with by the management at that time.
It is further seen from the record that the management in its written statement as also by way of its cross examination of the workmen WW1 to WW7 in workmen evidence as also by way of testimony of its MW1 Sh. Devender Kumar Aggarwal, Director of the management has alleged that the previous management had closed down in the year 1995 (which factum it is seen from the record has been admitted by almost all the workmen, as abovesaid) and that there existed no relationship of employer and employee between the workmen and the alleged present management comprising of Directors S/Sh. Mahender Kumar Aggarwal and Devender Kumar Aggarwal who had taken over the company in the year April, 2002 and got it covered under ESIC vide Code No. 10/60468/67 in the year 2002 and that since then the management was running continuously; that the present management did not inherit any workmen from the previous management and had taken over the plant in completely closed condition in which respect the management has relied upon the documents Ex.MW1/1 Colly which is copy of the registration certificate in respect of the management under the Central Sales Tax (Registration and Turnover) Rules 1957, Form (B) dated 10.01.2000 along with the certificate of registration in I.D. No. 24/07 Page 41 out of 51 respect of the management under the Delhi Sales Tax Rules 1975, Form ST8 dated 10.01.2000 along with authorization under Delhi Sales Tax Rules 1975, Form ST37 Office of the Sales Tax Officer Ward No. 94, New Delhi dated 10.01.2000 showing the names of the Directors of the management company Sh. Mahender Aggarwal and Sh.Devender Kumar Aggarwalw.e.f. 31.03.2008 on the same. Ex.MW1/2 Colly being copy of letter dated 12.12.1995 of the management to the Assistant Labour Commissioner, Tilak Khand Govind Puri, Kalkaji, New Delhi110019 in respect of the closure of the factory.......payment of full and final dues in respect of the management along with copies of postal registration receipt and AD card in respect of the addressee thereof. Ex.MW1/3 being copy of certificate of ImporterExporter Code (IEC) in respect of the management of the Govt. of India, Ministry of Commerce, Office of Joint Director General of Foreign Trade, 6/7, B.K. Roy Courts, Asaf Ali Road, New Delhi110002. Ex.MW1/4 Colly being registration of the management under ESIC Act, 1948 dated 03.10.2002 with the Regional Office, ESIC, DDA ShoppingcumOffice Complex, Rajender Bhawan, Rajender Place, New Delhi110008 along with appendices of the said office to the management thereto including application of the management dated 05.08.2002 to the Regional Director, ESIC, III & IV Floor, Rajendra Bhawan, Rajendra Place, I.D. No. 24/07 Page 42 out of 51 New Delhi for allotment of ESIC Code Number in respect of the management consequent to submission of the ESIC Registration Form No. 01 in prescribed proforma duly filled in in all respects on the part of the management to the said authority in this regard, as above said, to which submission/evidence of the management by way of its written statement and testimony of its MW1 Sh. Devender Kumar Aggarwal, Director of the management by way of his affidavit by way of evidence Ex.MW1/A in management evidence, I find from the record that there is no rebuttal on the part of the workmen so much so it is seen from the record that even rejoinder to the written statement of the management in respect of its averments in opposition to the statement of claim of the workmen, as abovesaid, has not been filed on the part of the workmen, on record, as also there is no rebuttal of the said allegations of the management by way of affidavit by way of evidence Ex.MW1/A of MW1 Sh. Devender Kumar Aggarwal, Director of the management in management evidence except for bald denial of the same on the part of the workmen which I find from the record is in contradiction of the deposition of the workmen in their cross examination on behalf of the management in their workmen evidence when it is deposed by the WW1 in his cross examination on behalf of the management in workmen evidence that he was not aware whether the present Directors S/Sh. Mahender I.D. No. 24/07 Page 43 out of 51 Kumar Aggarwal and Devender Kumar Aggarwal had purchased the company in the year April, 2002; that he did not know the above Directors of the company as also WW2 to WW7 have deposed that they were not aware whether the present Directors Sh. Mahender Kumar Aggarwal and Sh.Devender Kumar Aggarwal had purchased the company in the year April, 2002; that they did not know the above directors of the company; that they did not know anything about the present management; that they had not brought any document to show that they were employed with the management.
In view of my above observations and findings, I find that the workmen have not been able to discharge the onus which was upon them to prove the instant issue viz. "Whether there existed relationship of employer and employee between the workmen and the management". The same is hereby accordingly, decided against the workmen and in favour of the management.
Issue no.2 It is seen from the record that admittedly, the instant reference at the instance of the workmen against the management in respect of its terms of reference qua the parties, as abovesaid, is dated 22.02.2007 i.e. after a period of more than 11 years of the date of the alleged termination of the services of the workmen on the part of the management viz. 20/29.09.1995 as alleged by the workmen in the I.D. No. 24/07 Page 44 out of 51 instant case with no explanation having been given on the part of the workmen as to why they have initiated/raised their instant allegations/grievances against the management belatedly with even no evidence having been led on the part of the workmen in their workmen evidence, on record, as to what efforts/steps were being taken on their part in respect of the grievances as raised on their part against the management vide the instant statement of claim filed as late as on 28.03.2007 in the instant reference also of the year 2007 viz. dated 22.02.2007, as abovesaid, from the date of their alleged termination of services on the part of the management viz. 20/29.09.1995 as alleged on their part, in the shape of their statement of claim, if any, before the Conciliation Officer of the appropriate Government or any proceedings before the same apart from the bald allegation in the statement of claim that some of the workmen had initiated the proceedings before the Conciliation Officer in the month of December, 2004 on allegedly coming to know that the management was still operating from the same premises in a concealed manner as also the same was due to plight of the workmen, their economic distress and on account of the fact that the management concealed their operations for a long time; that the delay in initiating the present proceedings was on account of the fact that the whereabouts of the management was not known to the I.D. No. 24/07 Page 45 out of 51 workmen for a long time; that the workmen came to know about commencement of the production work by the management at the same place only in the year 2004, which allegations, I find from the record have not been proved, on record, and are also in contradiction of the deposition of the workmen in their cross examination on behalf of the management in workmen evidence when they state that they do not remember when they initiated the present proceedings in the Labour Office, though it has been stated by the WW1 Sh. Surendra Ram that they had initiated the proceedings in the present case in the year 2004 before Conciliation Officer; that he did not have any document to show that they had initiated the present case in the year 2004 other than the documents already filed, on record, of the present case. I further find that the said allegations of the workmen in respect of their allegedly not knowing the whereabouts of the management are not borne out from the factum of there being no change in the particulars viz. name and address of the management, as mentioned in the photocopies of the documents of the workmen Exts.WW1/3 to WW1/14 of the year 1995 and in the instant reference and statement of claim dated 22.02.2007 and 28.03.2007 respectively in respect of the workmen.
It is thus seen from the record that the workmen have not been able to justify the long delay on their part in raising their I.D. No. 24/07 Page 46 out of 51 instant allegations/grievances against the management, as abovesaid, i.e. a period of about 11 ½ years of the date of their alleged termination of services on the part of the management viz. 20/29.09.1995 as alleged by the workmen in the instant case and accordingly, I find that the instant claim of the workmen is a stale claim as on the date of its institution on the part of the workmen against the management in this Court vide the provisions of citations viz. 2002 (10) SCC 167 Assistant Executive Engineer, Karnataka Vs. Shiv Linga, 2006 (LB4)GJX0738DEL: 2006 (92) DRJ 348 Union of India Petitioner Vs. Soran SinghRespondent, 2012 LLR 713 Delhi High Court Ramesh Kumar Vs. Delhi Jal Board, 2012 LLR 683 Delhi Transport Corporation Vs. Presiding Officer Labour CourtI and Anr., (2000) 2 SCC 455 The Nedungadi Bank Ltd. Vs. K.P. Madhavankutty and Ors. and (2006) 5 SCC 433 U.P. State Road Transport Corporation Vs. Babu Ram.
It has been held vide citation The Nedungadi Bank Ltd. Vs.K.P. Madhavankutty and Ors. (supra).
"6. Law does not prescribe any time limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point I.D. No. 24/07 Page 47 out of 51 of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in I.D. No. 24/07 Page 48 out of 51 question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising an industrial dispute was ex facie bad and incompetent."
It has further been held by the Hon'ble Delhi High Court vide citation 2006 (92)DRJ 348 Union of India (UOI) Vs. Soran Singh that: "13.In U.P. State Road Transport Corporation V.Babu Ram 2006 LLR 896, Supreme Court held that there was no formula of universal application in considering the delay as fatal in seeking reference of Industrial Disputes Act. The respondent in this case was terminated on 19.03.1983. Dispute was referred to Labour Court in 1998. Court held that it was a case I.D. No. 24/07 Page 49 out of 51 of delayed reference of Industrial Disputes Act and it was for the workman to show that dispute was raised within a reasonable time and that he was not responsible for delay.
Court allowed the appeal.
14. It is apparent that there was no dispute in existence which could have been referred by State. Where a person after termination of services, does not raise an industrial dispute, either immediately or within a reasonable time, it has to be assumed that no dispute exist. No rigid formula can be laid down about reasonable time, but everyday is precious for an unemployed person. His unemployment would compel him to raise dispute immediately. If he is unable to raise industrial dispute immediately, there must be valid reasons for the same. Non application of Limitation Act to the disputes under Industrial Disputes Act, does not give workman a right to sleep over the matter. If I.D. No. 24/07 Page 50 out of 51 he sleeps over the matter, the dispute becomes stale and no dispute in the eyes of law."
In view of my above observations and findings, I accordingly, decide the issue no.2 in favour of the management and against the workmen.
Issue no.3 In view of my findings on issue nos.1 and 2, as herein above, the issue no.3 has become redundant and no findings need be given on the same.
Issue no.4.
In view of my findings on issue nos. 1 and 2, as herein above, the workmen are held to be not entitled to any relief.
The reference is answered accordingly and the award is passed. Ahlmad is directed to send six copies of this Award to the appropriate Government. The file be consigned to the record room.
Announced in the open Court
on 30.05.2013 (CHANDRA GUPTA)
Presiding Officer Labour CourtX
Karkardooma Courts, Delhi.
I.D. No. 24/07 Page 51 out of 51