Delhi District Court
Radheyshyam S/O. Sh. Jai Karan vs M/S. Kenmore Vikas (India) Private ... on 30 April, 2015
Radheyshyam Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 357/10
BEFORE LABOUR COURT - XI: KARKARDOOMA COURTS: DELHI
PRESIDING OFFICER: Mr. ANAND SWAROOP AGGARWAL
(Delhi Higher Judicial Service)
(Additional District & Sessions Judge, Delhi)
REFERENCE CASE (ID) NO. 357/10
UNIQUE CASE IDENTIFICATION NO. 02402C0201782010
In the matter of:
Radheyshyam s/o. Sh. Jai Karan,
R/o. Village Jai Ram Patti, PO Dhobakhara,
Nath Nagar, Distt. Sant Kabir Nagar, U.P.
C/o. Rashtriya Mazdoor Sangh Delhi Pradesh,
52C, Okhla Industrial Area PhaseIII,
New Delhi110020 ......... Workman / Claimant
Vs.
M/s. Kenmore Vikas (India) Private Limited,
12A, Shivaji Marg, New Delhi110015 ..........Management
Date of institution : 19.07.2010
Date of reserving for award : 23.03.2015
Date of award : 30.04.2015
AWARD:
1.TERMS OF REFERENCE Vide Order No. F3(419)/Ref./WD/LAB/60 dated 06/07/10 Deputy Labour Commissioner (West District), Labour Department, Government of N.C.T. of Delhi, New Delhi 110015 referred following industrial dispute between workman Radheyshyam S/o. Sh. Jai Karan, C/o Rashtriya Mazdoor Sangh Delhi Pradesh, 52C, Okhla Industrial Area PhaseIII, New Delhi110020 and management of M/s. Kenmore Vikas (India) Private Limited, 12A, Shivaji Marg, New Delhi110015 u/s. 10(1) (c) and Page 1 of 27 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Radheyshyam Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 357/10 12(5) of the Industrial Disputes Act, 1947 vide Govt. of NCT of Delhi, Labour Department Notification No. F.1/31/616/Estt/2008/7458 dated 03.03.2009 for adjudication by this court : ''Whether the relationship of employer employee ever existed between the management and Sh. Radheyshyam S/o Sh. Jai Karan and if so whether his services have been terminated illegally by the management; and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. CASE OF THE WORKMAN AS PLEADED IN THE STATEMENT OF CLAIM.
(i) The management is running its business in the name and style of M/s. Kenmore Vikas (India) Private Limited and is having its office at 12A, Shivaji Marg, New Delhi
- 110015 and Plot No. 4, 20th Mile Stone, Mathura Road, Faridabad - 121006, Haryana (India).
(ii) Workman was employed with management as a 'Maintenance Electrician' since 07.10.2004 and was drawing monthly wages Rs.5500/ per month as basic salary.
(iii) Workman was appointed by the management on 06.10.2004 and on 07.10.2004 workman was sent by the management at M/s. Kenmore Vikas (India) Pvt. Ltd., Plot No. 25, Mathura Road, Faridabad, Haryana and workman was worked there.
Thereafter, workman was shifted at Plot No. 49, DLF, Faridabad, Haryana and after sometime management shifted its works at Plot No. 4, 20th Mile Stone, Mathura Road, Faridabad - 121006, Haryana (India).
(iv) Workman had been in the employment of the management since long and was performing his respective duties with the entire satisfaction of the management and never given any chance of complaint to them.
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(v) No appointment letter was issued to the workman and his services are also not properly maintained by the management (sic). Management is also not providing the other legal facilities to workman as granted under different labour laws and, even, workman was being paid wages less than the minimum rate affixed by Government.
(vi) Workman had been demanding the legal facilities from the management but no heed was paid towards his demands and rather the management got annoyed and started to victimize the workman.
(vii) Workman made complaint to the different department (sic) and the labour inspector as well as concerned persons of other department (sic) visited the establishment and found the complaint of workman to be correct but inspite of best efforts made by persons of different department (sic) management did not provide the legal facilities to workman.
(viii) Workman met with an accident during his duty with the management M/s. Kenmore Vikas (India) Pvt. Ltd., Plot No. 4, 20 Mile Stone, Mathura Road, Faridabad, Haryana on 05.02.2008 at 10.45 A.M. and workman was got treated in the ESIC vide ESIC No. 9712025.
(ix) Workman was doing his duty sincerely and with full devotion to his duty and never given any chance of complaint to the management.
(x) The management terminated the workman on 15.07.2009 from his services with malafide and dishonest intention terminated without issuing any notice or charge sheet and without holding any enquiry and did not give salary for the month of June and July 2009.
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(xi) Management were (sic) taking the duty from the workman four hours extra daily as overtime with an assurance to pay the amount in double rate but they did not pay the single penny of the said overtime and, when the workman demanded his overtime money, management insulted the workman and abused filthily and never gave bonus to him.
(xii) On 15.07.2009 when workman requested to pay the salary for the month of June & July 2009 and overtime charges etc., management got annoyed and abused him filthily and later on management got beaten the workman from its interested employees of gunda nature and, thereafter, management threw out the workman from the factory premises with the threat to be killed, if workman approached the management again for his wages and dues etc.
(xiii) The action of the management in terminating the services of the workman is illegal, unjustified, unlawful and malafide under the colourable exercise of power.
(xiv) No retrenchment compensation was either offered or paid to the workman at that time which is a condition precedent as per provisions, hence the order of the management is void, inoperative and bad in law.
(xv) Workman sent demand notice dated 20.08.2009 to the management through registered AD through Labour Union for his reinstatement but, inspite of receipt of the said demand notice, workman was not taken back on duty nor management replied the notice nor made any payment.
(xvi) Workman filed his claim before Conciliation Officer and as per complaint of the workman Conciliation Officer called the management in his office for the Page 4 of 27 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Radheyshyam Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 357/10 settlement of the dispute but the management could not settled the dispute (sic) and ultimately the dispute was referred to this Court for adjudication. (xvii) A regular dispute was raised by workman before Conciliation Officer who initiated conciliation proceedings in the matter but due to noncooperative attitude of management no settlement could be reached and conciliation proceedings failed. Hence this reference.
(xviii) Workman is unemployed till date inspite of best efforts made by him.
With these averments workman prayed for an award in favour of workman for his reinstatement with full back wages, earned wages for the month of June & July 2009 and with continuity of service alongwith all consequential benefits in the interest of justice.
3. STAND OF MANAGEMENT AS PLEADED IN WRITTEN STATEMENT OF DEFENCE PRELIMINARY OBJECTIONS Management took certain preliminary objections such as that (i) present reference is untenable under law as government of Delhi has no territorial jurisdiction to refer the present case; (ii) there exist no relationship as employee and employer between the parties; (iii) the present reference is untenable for nonjoinder and mis joinder of necessary parties; (iv) no cause of action has ever arisen at Delhi, as such, this Court has no territorial jurisdiction to entertain present case; (v) there exist no industrial dispute as defined u/s. 2A of the Industrial Disputes Act, 1947 as claimant never made any demand to management prior to moving to the Conciliation Authorities; (vi) the claimant has not enclosed any document alongwith the statement Page 5 of 27 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Radheyshyam Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 357/10 of claim, as such, the present statement of claim is liable to be dismissed; (vii) the statement of claim is neither verified nor supported by any affidavit, as such, the same is liable to be dismissed and (viii) claimant has concealed material facts in the statementofclaim by not disclosing the name of his immediate employer and place of work, as such, statementofclaim is liable to be rejected. ON MERITS Management, while denying the case as pleaded by workman in the statement ofclaim in toto, pleaded that it is correct that management is having the registered office at Shivaji Marg and works at plot no.4, 20th Miles Stone, Mathura Road, Faridabad. Management denied the averment of workman regarding his appointment by management and pleaded that as a matter of fact there exist no relationship as employee and employer between the claimant and management. Management being a labour oriented company has to engage labour through different contractors. The management has obtained Registration Certificate from the Government of Haryana. Management enclosed photocopy of Registration Certificate as Annexure - A. Management also pleaded that date of appointment and wages are matter of record of concerned contractor under whom claimant was working. Claimant should disclose the name of the contractor under whom claimant was working. Management also relied upon relevant ESI and PF Contribution and Wages Record of M/s. Shiv Dutt Singh Labour Contractor, Bharat Colony, Hanuman Nagar, Kheri Road, Faridabad as Annexure - B - ESI Returns (colly.) of M/s. Shiv Dutt Singh, Labour Contractor; Annexure - C - PF - Returns (colly.) of M/s. Shiv Dutt Singh, Labour Contractor and Annexure - D - Wages Register of M/s. Shiv Dutt Singh, Labour Contractor. Management used to engage labourer under the Contract Labour (Regulation and Abolition) Act, 1970 and the claimant has not submitted his better particulars so that his actual employer can be Page 6 of 27 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Radheyshyam Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 357/10 recognized. However, management enclosed with WS relevant record of the contractors (sic) under the above stated Act as Annexure - A Registration Certificate of M/s. Kenmore Vikas India Pvt. Ltd. under section 7 (2) of the Contract Labour (Regulation and Abolition) Act, 1970 and rules made there under; Annexure - B - ESI Returns (colly.) of M/s. Shiv Dutt Singh, Labour Contractor; Annexure - C - PF - Returns (colly.) of M/s. Shiv Dutt Singh, Labour Contractor and Annexure - D - Wages Register of M/s. Shiv Dutt Singh, Labour Contractor. Management is a law abiding company and each and every statutory provisions are complied with. Management, also, pleaded that it did not get any intimation from the department of labour except the demand notice which was duly replied by management. Management further relied upon reply to Conciliation Officer as Annexure F - Reply to Conciliation Officer. Management also pleaded that averments made by workman regarding accident on 05.02.2008 are matter of record and claimant might have been engaged through contractor. The ESI No. mentioned by claimant does not belong to management and this no. belongs to Mr. Shiv Dutt Singh, Labour Contractor, Bharat Colony, Hanuman Nagar, Kheri Road, Faridabad from whom management engaged labourers time to time. Since there existed no relationship between claimant and management as employee and employer, the question of termination on 15.07.2009 and withholding of salary does not arise. Averment of workman regarding overtime work were also denied by management. Management also denied the averments of workman regarding workman having been abused / beaten up / thrown out of factory. Management did not receive any demand notice dated 20.08.2009 allegedly sent through Registered - AD post sent by the claimant. Averment of workman regarding conciliation proceeding are matter of record. At last management preyed that claim statement of claimant my kindly be dismissed with heavy cost.
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4. REJOINDER The workman filed rejoinder to the written statement of management denying the stand taken by the management and reaffirming the averments made by him the StatementofClaim.
5. ISSUES Vide order dated 14.11.2011, ld. predecessor of this Court framed following issues :
(i) Whether this court has no territorial jurisdiction to try this case?OPM
(ii) Whether there exists any relationship of employer and employee between the Management and the workman? OPM (changed as OPW vide order dated 30.08.2014)
(iii) As per terms of reference.
(iv) Relief, if any. 6. EVIDENCE
Workman appeared in witness box as WW1 as Radheyshyam. Workman relied upon documents: Ex.WW1/1- ESIC Card of workman; Ex.WW1/2 - Accident Report; Ex.WW1/3 - Cheques of Rs. 6525/ dated 17.04.2008 and Rs. 8918/ issued in favour of workman; Ex.WW1/4 (Colly.14 pages) Request For Maintenance. Documents Ex.WW1/2 and Ex.WW1/3 were objected to by ld. counsel for management as mode of proof and being photocopies. During the cross - examination workman was confronted with documents namely Ex.WW1/M1x (colly. 47 pages) - Salary Chart. WE was closed by ld. ARW on 28.09.2013.
Management examined MW1 Mr. Chandra Shekhar, Manager HR Administration, MW2 Mr. Bhagat Singh, SSSA, Regional PF Commissioner, Page 8 of 27 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Radheyshyam Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 357/10 Sector15A, Faridabad, Haryana, MW3 Mr. Shyam Lal, Assistant, Branch Office, ESIC, NIT, Faridabad, Haryana, MW4 Mr. Shiv Dutt Singh, Labour Contractor, Bharat Colony, Hanuman Nagar, Kheri Road, Faridabad and MW5 Mr. P.K.Thakur, Asst. Manager, M/s Amar Udyog, UnitII, Plot No. 76, Sector25, Faridabad. Management relied upon documents namely Ex. MW1/1 to Ex. MW1/5 - Certificates of Registration of management u/s. 6 of Contract Labour (Regulation & Abolition) Act, 1970; Ex.MW1/6 to Ex.MW1/16 - Agreement(s) with Contractors; Ex.MW1/17 to Ex.MW1/47 - ESI & EPF Returns for the period from 2000 to 2010; Ex.MW2/1 to Ex. MW2/6 - Form 3A (Revised) & Form 6A of PF Department - Annual Return of Mr. Shiv Dutt Singh, Labour Contractor from 01.10.2004 to 31.07.2009; Ex.MW3/1 (colly. 3 pages) - ESIC Return (Form 6) from 01.04.2005 to 30.09.2005; Ex.MW3/2 (colly. 3 pages) - ESIC Return from 01.10.2007 to 31.03.2008; Ex.MW3/3 (colly. 3 pages) - ESIC Return from 01.04.2009 to 30.09.2009; Ex.MW3/4 (colly. 2 pages back to back) - ESIC Declaration Form dated 07.10.2004; Ex.MW4/1 (colly. 17 pages) is ESIC returns from 01.10.2004 to 30.09.2009; Ex.MW4/2 (colly. 46 pages) PF returns from April, 2004 to 31.03.2010; Ex.MW4/3 (colly. 41 pages) - Bill / Cash Memos.; Ex.MW4/M1x - Contractor Licence dated 07.12.2004; Ex.MW5/1 Temporary Identity Certificate of ESIC; Ex.MW5/2 (colly. 9 pages) - Monthly Contribution; Ex.MW5/3 - Letter dated 21.11.2011 sent by Amar Udyog Plant II to The Regional PF Commissioner regarding submission of Monthly return for the month of October, 2011; Ex.MW5/4 Payment of wages register for the month of October 2011 maintained by Amar Udyog PlantII; Ex.MW5/5 Workers Pay Register of Amar Udyog; Ex.MW5/6 Monthly contribution details of workers maintained by ESIC; Ex.MW5/X1 Photocopy of family photograph of workman; Ex.MW5/X2 (colly.) Photo Identity Card cum Punching Card of workman maintained by Amar Udyog and Page 9 of 27 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Radheyshyam Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 357/10 Mark MW5/X3 - Full & Final settlement of the accounts of workman.
7. ARGUMENTS I have heard Mr. Y. B. Singh, ARW and Mr. Jagbeer Singh Bhadana, Adv. for management. Ld. AR for workman has filed written submissions and relied upon case laws reported as (i) Gangadhar Bajpai and others Vs. Indian Oil Corporation and others 2010 (124) FLR 316; (ii) Chet Ram Vs. Presiding Officer, Industrial Tribunal - Cum - Labour Court - 1 and another 2010 (127) FLR 379; (iii) State Bank of Bikaner & Jaipur Vs. Om Prakash Sharma 2006 (109) FLR 1203; (iv) Union of India and another Vs. Major Bahadur Singh 2006 (108) FLR 146; (v) Assistant Engineer, Rajasthan Vs. Ram Charan 2006 (109) FLR 1207; (vi) Triveni Sheet Glass Works Ltd. Vs. State of U. P. and others 2006 (108) FLR 655 (vii) Bajaj Tempo Limited Vs. Employees' State Insurance Corporation 2006 (110) FLR 461; (viii) Asish Dey Chowdhury and others Vs. State of West Bengal and others 2014 (141) FLR 1101; (ix) Bhogpur Cooperative Sugar Mills Ltd. Vs. Harmesh Kumar 2006 (111) FLR 1202; (x) Management of M/s. Hewlett Packard Global Soft Pvt. Ltd. Vs. K. L. J. A. Kiran Babu 2014 (142) FLR 757; (xi) Kanpur Electricity Supply Company Limited Vs. Shamim Mirza (2009) 1 Supreme Court Cases 20; (xii) Raj Kumar Jaiswal Vs. Rangi International Pvt. Ltd. MANU / DE / 2859 / 2009 (xiii) State of Punjab and others Vs. Rafiq Masih (White Washer) 2014 (142) FLR 638; (xiv) Sh. Mahipal Singh Vs. Presiding Officer, Industrial Tribunal - III and Ors. MANU / DE / 1408 / 2010 and (xv) Hira Lal Patni Vs. Sri Kali Nath A.I.R. 1962 Supreme Court 199.
Ld. counsel for management has filed written submissions and relied upon case laws reported as (i) Angile Insulations Vs. Davy Ashmore India Ltd. and Another (1995) 4 Supreme Court Cases 153; (ii) Rajasthan State Electricity Board Vs. Page 10 of 27 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Radheyshyam Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 357/10 Universal Petrol Chemical Limited (2009) 3 Supreme Court Cases 107; (iii) National Textile Corpn. Ltd. and others Vs. M/s. Haribox Swalram and others AIR 2004 Supreme Court 1998; (iv) International Airport Authority of India Vs. International Air Cargo Workers' Union & Anr. 2009 LLR 923; (v) Air India Limited Vs. Jagesh Dutt Sharma & Ors. 2007 LLR 23; (vi) General Manager (OSD), Bengal Nagpur Cotton Mills, Rajnandgaon Vs. Bharat Lal & Anr. 2011 LLR 113; (vii) Chander Sain and others Vs. J. B. Garments 2009 (122) FLR 359; (viii) Ram Singh and others Vs. Union Territory, Chandigarh and others 2003 (99) FLR 1064; (ix) Anand Sawrup Data Vs. Punjab National Bank & Ors. 1997 (2) Civil Court Cases 44 (P&H); (x) Cement Corporation of India Ltd. Vs. Presiding Officer, Labour CourtCumIndustrial Tribunal, Hisar & Ors. 2010 LLR 704; (xi) New Delhi General Mazdoor Union & Others Vs. Standing Conference of Public Enterprises and another 1991 LLR 516; (xii) Charan Singh Vs. Presiding Officer, Industrial Tribunal - Cum - Labour Court - II, Gurgaon and Another 2014 LLR 747; (xiii) Chander Sain and others Vs. J. B. Garments 2009 (122) FLR 359; (xiv) Sunil B. Waghela Vs. M/s. Juhu Vile Parle Gymkhana Club and others 2002 LLR 1206; (xv) Bombay Hospital Trust and another Vs. Dr. Shailesh Hathi and another 2006 LLR 992; (xvi) Ravindra Baburao Ambolkar Vs. Gujarat Tea Canteen and another 1996 LLR 40; (xvii) Florence Joel Vs. Mater Dei School 2005 (3) SLR 643; (xviii) Ashok Leyland Ltd. Vs. Government of Tamil Nadu & others 1992 (64) FLR 755 (xix) Nazir Ahmed Vs. A. Ramachandran and another 2000 (4) L. L. N. 948; (xx) Mahindra and Mahindra Vs. The Presiding Officer and another 2012 SCT (4) 345; (xxi) North East Karnataka Road Transport Corporation Vs. M. Nagangouda 2007 (1) L. L. N. 582; (xxii) Kendriya Vidyalaya Sanghathan and Anr. Vs. S. C. Sharma 2005 LLR 275 and (xxiii) Municipal Council, Sujanpur Vs. Surinder Page 11 of 27 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Radheyshyam Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 357/10 Kumar 2006 (3) L. L. N. 806.
Material available on judicial file perused very carefully. I have given a thoughtful consideration to the facts and circumstances of this case as they arise on the basis of material available on judicial file.
8. My ISSUEWISE findings are as under: ISSUE No.1 Whether this court has no territorial jurisdiction to try this case?OPM Vide order dated 07.03.2015 ld. counsel for management submitted that he is not pressing contentions of the management regarding this Court not having territorial jurisdiction to try this case and this Court may proceed with the assumption that this Court is having territorial jurisdiction to try this case. Further it may also be noted that in this case admittedly management is having its registered office at 12A, Shivaji Marg, New Delhi and reference under section 10 (1) (C) and 12 (5) of the Industrial Disputes Act, 1947 has been made by Dy. Labour Commissioner (West - District), Labour Department, Govt. of NCT of Delhi to decide the industrial dispute as mentioned in the first para of this award. Being guided by the case laws reported as Raj Kumar Jaiswal Vs. Rangi International Pvt. Ltd. (supra) and Sh. Mahipal Singh Vs. Presiding Officer, Industrial Tribunal - III and Ors. (supra), undoubtedly, this Court can be said to be having territorial jurisdiction to decide the reference in hand. Issue is accordingly decided against the management.
ISSUE No. 2 Whether there exists any relationship of employer and employee between the Management and the workman? OPM (changed as OPW vide order dated 30.08.2014) ISSUE No. 3: As per terms of reference Page 12 of 27 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Radheyshyam Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 357/10 (''Whether the relationship of employeremployee ever existed between the management and Sh. Radheyshyam S/o Sh. Jai Karan and if so whether his services have been terminated illegally by the management; and if so, to what relief is he entitled and what directions are necessary in this respect?") Here as per workman, workman was employed with management as 'Maintenance Electrician' since 07.10.2004 and workman was drawing monthly wages of Rs.5500/ per month as basic salary. Further workman has alleged that management terminated his services on 15.07.2009 illegally and also did not pay salary for the month of June 2009 and July 2009. On the other hand, in pith and substance, stand of management is that there existed no relationship of employeremployee between the management and the workman. As per management, management used to engage labourer under the Contract Labour (Regulation & Abolition) Act, 1970 and workman was employed by Mr. Shiv Dutt Singh, Labour Contractor with whom management was having agreement for providing of services of manpower. Management examined said Mr. Shiv Dutt Singh, Labour Contractor as MW4 Mr. Shiv Dutt Singh, Labour Contractor who deposed that workman was his employee from 01.10.2004 till 31.07.2009 and he (Mr. Shiv Dutt Singh, Labour Contractor) was supervising the work of workman Radheyshyam and was also paying wages / salary to workman Radheyshyam. MW4 Mr. Shiv Dutt Singh, Labour Contractor further relied upon ESI Returns and PF Returns and Salary Sheets to show that workman Radheyshyam was infact his employee.
NOW it is for this Court to decide the controversy / issue as raised herein above. It is a settled propositions of law that this controversy / issue is to be decided by this Court on the touchstone of principle of preponderance of probabilities keeping in mind the totality of facts and circumstances of this case as they are made out on the basis of entire material available on judicial file. Generally speaking it is a settled Page 13 of 27 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Radheyshyam Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 357/10 proposition of law that initial onus to show that there existed relationship of employer employee between the management and workman is on the workman and, unless, workman discharges this initial onus by bringing on record requisite evidence, weaknesses in the defence as setup by the management in the WS does not in any way benefit the workman. As the facts suggests here undisputedly management availed the services of workman but allegedly through Mr. Shiv Dutt Singh, Labour Contractor in total compliance with provisions of the Contract Labour (Regulation & Abolition) Act, 1970. Here, when management admittedly availed the services of workman but allegedly through Mr. Shiv Dutt Singh, Labour Contractor in total compliance with provisions of the Contract Labour (Regulation & Abolition) Act, 1970 and management is coming up with the positive stand / defence, management is equally bound to establish on judicial file by leading cogent and convincing evidence the correctness / truthfulness of the stand taken by the management in the WS. In the facts and circumstances of this case, failure on the part of the management to prove the defence / stand taken by it in the WS may lead this Court to conclude that quite possibly the case as pleaded by workman in the statementofclaim is true.
Here as per workman, workman was working with management as 'Maintenance Electrician'. In the crossexamination of workman WW1 Mr. Radhey Shyam it has not even been suggested to him that workman did not work with management since 07.10.2004 till 15.07.2014. Stand of the management is only to the following effect:
"......It is wrong to suggest that I was employee of the contractor................................................................................................... Q. It is put to you that you were working in Faridabad and you have filed a case in Delhi to extort the money from the management? Ans. Company is having Head Office in Delhi and I was resident of Delhi at the time of apply in management..........".
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POLC XI/KKD/DELHI/30.04.2015 Radheyshyam Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 357/10 HENCE, there is no dispute so far as working of workman with management is concerned. In the course of his crossexamination workman / WW1 Mr. Radhey Shyam has been made to depose as under: "I am 10th class passed. I was working with the management as a Maintenance Electrician. I have done a certificate course for Electrician from Government Industrial and Technical Institute, Gorakhpur, UP. I have not brought the certificate today. I started to work with the management since 07.10.2004...."
What is pertinent to note is that in the entire cross - examination of workman is that it has not even been suggested to the workman that workman was not working as 'Maintenance Electrician' and was infact engaged in any other nature of job. In the course of his cross - examination workman was confronted with wages register Ex.WW1/M1x on which workman admitted his signatures at Points A on each sheet. It is pertinent to note is that management has not filed on record complete sheets of the wages register for each month(s) to which document(s) Ex.WW1/M1x pertain(s) and has filed on record only the sheet on which name of the workman is there. As per sheets as at page no.10 (MARKB), 11, 12, 15, 16 workman was working in the "MAINTENANCE" division. In all these documents designation of workman has been mentioned as "ELECTRICIAN". The depositions of MW4 Mr. Shiv Dutt Singh to the following effect are not trustworthy inasmuch as department of workman as "MAINTENANCE" stood already mention on these documents as heading.
"Q. Kindly explain as to why designation of workman Radhey Shyam has been mentioned as Electrician on document marked as markB for identification purposes.
A. By mentioning electrician against the designation on document markB I referred to department of the workman......".
Document Ex.WW1/2 also mentions the "Occupation of injured person" / workman as 'Electrician'. Ld. counsel for management in the course of examinationin Page 15 of 27 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Radheyshyam Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 357/10 chief of workman Radhey Shyam objected to document Ex.WW1/2 as to mode of proof and the same being photocopy but in the cross - examination of workman, workman has been made to depose as under: "............I do not know who had filled up Ex.WW1/2 .......................................................................................... Qus. It is put to you when you had met with an accident, the accident form was filled up by contractor? Kindly explain?
Ans. I was ill and I do not know who had filled the accident form. I came to know about the form when I demanded the same from the management.....".
Above cross - examination of the workman by ld. counsel for management suggest that management is very much relying upon the document Ex.WW1/2 (Accident Form). It has not even been suggested to workman in his cross - examination that document Ex.WW1/2 is a forged and fabricated document. As the management is itself relying upon the document, objection(s) taken by the management as regards its exhibition is / are found to be without any substance. What deserves to be noted is that, as already noted, occupation of workman in this document has been mentioned as 'ELECTRICIAN'. Document Ex.MW3/4 relied upon by management itself also mentions the nature of work of workman Radhey Shyam as Electrician. From above discussion it is evident that workman was engaged as 'Maintenance Electrician'.
Management is relying upon Certificates of Registration Ex.MW1/1 to Ex.MW1/5 and relevant portions therefrom read as under: Sl. No. Name Address Nature of work of Workers Period Contractor Ex.MW1/1 Shiv Dutt Bharat Colony, Kheri Material Handling, 87 01.02.2002 Singh Road, Old Faridabad Loading, Unloading & to Labour (Faridabad) Security 31.12.2003 Contractor Page 16 of 27 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Radheyshyam Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 357/10 Ex.MW1/2 Shiv Dutt Bharat Colony, Kheri Material Handling, 77 01.01.2004 Singh Road, Old Faridabad Loading, Unloading & to Labour (Faridabad) Security 31.12.2005 Contractor Ex.MW1/3 Shiv Dutt Bharat Colony, Kheri Material Handling, 150 04.05.2006 Singh Road, Old Faridabad Loading, Unloading, to Labour (Faridabad) Production, House 31.12.2006 Contractor keeping & Security Ex. MW1/4 Shiv Dutt Bharat Colony, Kheri Material Handling, 110 06.08.2007 Singh Road, Old Faridabad Loading, Unloading & to Labour (Faridabad) Security 31.12.2007 Contractor Ex.MW1/5 Shiv Dutt YMCA Chowk, Packing, Loading, 120 01.01.2009 Singh Faridabad Unloading, Cutting, to 31.12.2013 Labour Drawing Contractor MW4 Mr. Shiv Dutt Singh in his cross examination deposed as under: ".... Que. Do you possess licence under Section 12 of the Contract Labour (Regulation & Abolition) Act, 1970?
Ans. In this regard I am relying upon document Ex.MW4/M1x....." Document Ex.MW4/M1x is contractor licence dated 07.12.2004 till 31.12.2004 in the name of Shiv Dutt Singh for doing the work of material handling, loading, unloading and security in the establishment of M/s. Kenmore Vikas (India) Pvt. Ltd.. Besides Ex.MW4/M1x no other contractor's licence for any other period of time has been brought on record by the management / MW4 Mr. Shiv Dutt Singh. MW4 Mr. Shiv Dutt Singh in his cross - examination deposed as under: "........Radhey Shyam was working as helper to the electrician. Again said he was categorised under the work nature as loadingunloading as mentioned in my licence under the Contract Labour Act.
Q. Kindly explain as to why designation of workman Radhey Shyam has been mentioned as Electrician on document marked as markB for identification purposes.
A. By mentioning electrician against the designation on document markB I referred to department of the workman......". Page 17 of 27 (ANAND SWAROOP AGGARWAL)
POLC XI/KKD/DELHI/30.04.2015 Radheyshyam Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 357/10 As per above depositions of MW4 Mr. Shiv Dutt Singh workman was working as helper to electrician. MW4 Mr. Shiv Dutt Singh improved upon his version by deposing that workman was categorised under the work nature as loadingunloading as mentioned in his licence under the Contract Labour Act Ex.MW4/M1X. To my mind, by no stretch of imagination work of helper to an electrician can be made to fall under the work nature as loadingunloading as deposed by MW4 Mr. Shiv Dutt Singh, Labour Contractor. These depositions are also not worth reliance inasmuch as it has not been even suggested to workman in his cross - examination that workman was working as helper to an electrician.
Evidently Ex.MW1/1 to Ex.MW1/5 and Ex.MW4/M1x do not authorise the management to avail the services of workman as 'Maintenance Electrician' through labour contractor under the provisions of the Contract Labour (Regulation & Abolition) Act, 1970. This falsify the stand of the management as pleaded in written statement of defence to the effect that management is a law abiding company and each and every statutory provisions are strictly complied with by it.
Also it is pertinent to note that MW1 Mr. Chandra Shekhar in his cross - examination deposed as under: "I joined the management company on 02nd April 2012 as Manager (HR & Administration). It is correct to suggest that during the period 2004 to 2009 I was not working with the management in any capacity. Management is a Automotive Company engaged in the manufacturing of machining components...................................................................... It is correct to suggest that I am deposing about the facts during the period from 2004 to 2009 on the basis of records of the management and other wise I have no personal knowledge about the same as I joined the management only on 02.04.2012.......".
It is a settled proposition of law that management is supposed to prove the stand Page 18 of 27 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Radheyshyam Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 357/10 taken by it in the WS by examining relevant witnesses capable of proving the facts as pleaded by management in the WS on judicial record. It is noted that on each of the document Ex.MW1/1 to Ex.MW1/5 name of Mr. Naveen Aggarwal is mentioned but said Mr. Naveen Aggarwal had preferred not to enter into witness box to prove the stand taken by the management in the WS. Nor any explanation has come on judicial record for non - examining said Mr. Naveen Aggarwal as management's witness. WW1 Radhey Shyam also in his cross - examination has deposed that, "..... Mr. M. N. P. Chaudhary was my manager and there were many owners but Sh. Aggarwal was main...". Also, MW1 Mr. Chandra Shekhar in his cross - examination deposed as under: ".........Q. Whether as a Principal Employer management have been sending returns to the Inspector appointed under Rule 81 (3) of Contract Labour (Regulation & Abolition) Central Rules, 1971 in Form - VI B?
A. I do not know.
Q. Whether management has been issuing certificate to Contractors
for getting licences as required by law with an application of Contractor for getting licence on Form - V as per Rule 21 (2) of Contract Labour (Regulation & Abolition) Central Rules, 1971?
A. I do not know....."
There is nothing on judicial file to show that management complied with the above referred provisions of the Contract Labour (Regulation & Abolition) Central Rules, 1970. Further, MW1 Mr. Chandra Shekhar in his cross - examination as regards Agreements Ex.MW1/6 to Ex.MW1/16 (colly.) deposed as under: ".......I have gone through the agreements Ex.MW1/6 (colly.) to Ex.MW1/16 (colly) executed between management and Labour Contractor Shiv Dutt. It is correct to suggest that in the agreements there is no mention about the rates payable to the Labour Contractor by the management for the labourers supplied by the Labour Contractor. (Vol. Payment used to be made to the Labour Contractor as per the prevalent Page 19 of 27 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Radheyshyam Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 357/10 minimum wages.) I do not know whether TDS used to be deducted from the payments made to Labour Contractor Shiv Dutt. (Vol. TDS must have been deducted if so provided in the agreements)......................................... AGREEEMENT The rates of the workmen skilled, semi skilled and unskilled has not been written in the agreements Ex.MW1/6 to Ex.MW1/16.
Q. Whether agreements Ex.MW1/6 to Ex.MW1/16 the liability of the contribution of ESI and EPF be reimbursed to contractor mentioned in the agreements or not?
Question disallowed being matter of record..."
Further, MW4 Mr. Shiv Dutt Singh in his cross - examination deposed as under: ".......Ex. MW1/6 (colly) to Ex. MW1/16 (colly) does not bears the date under my signatures at pointX. It is correct to suggest that in the agreements (i.e. Ex. MW1/6 (colly) to Ex. MW1/16 (colly)) do not contain the rates per labour payable to me by the management for supply of labourers......"
In view of above depositions of MW1 Mr. Chandra Shekhar and MW4 Mr. Shiv Dutt Singh it is evident that Agreements Ex.MW1/6 to Ex.MW1/16 are silent as regards one of most material aspect, that is, the rates payable to labour contractor by the management for the labourers supplied by the labour contractor. Voluntary depositions made by MW1 Mr. Chandra Shekhar to the effect that payments used to be made to labour contractor as per prevalent minimum wages is not, amongst other reasons, acceptable inasmuch as it is not so specifically mentioned in the Ex.MW1/6 to Ex.MW1/16 because when parties are entering into written agreement an essential element of the agreement cannot be allowed to be brought into the agreement through oral depositions.
Further it is pertinent to note that MW4 Mr. Shiv Dutt Singh in his cross examination deposed as under: Page 20 of 27 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Radheyshyam Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 357/10 "......Management was making payment to me for providing the labour as per the minimum wages applicable at the relevant time in addition to commission @ 8% to 6% on the total cost of minimum wages payable to the workers engaged through me. Payment towards ESI and PF contributions were to be borne by the management. Again said PF and ESI used to be paid by me out of the commission received by me from the commission. TDS used to be deducted by the management while making payment to me............................................................................................ Employees contribution towards ESI is 1.75% and that of management is 4.75%. Employees contribution towards EPF is 12.00% and that of management is 13.61%. Service taxes variable. I do not remember rate of service tax in the year 2004. Presently its rate is 12.36%........." Above depositions of MW4 Mr. Shiv Dutt Singh are not consistent with following depositions made by MW1 Mr. Chandra Shekhar in his cross - examination, ".... Payments used to be made to Labour Contractor Shiv Dutt after making additions in the bills towards the ESI and EPF contributions paid by the Labour Contractor Shiv Dutt. Again said the payments deposits made by Labour Contractor Shiv Dutt towards the ESI and PF stands already mentioned in the bill raised by the Labour Contractor Shiv Dutt.....".
Depositions of MW1 Mr. Chandra Shekhar and MW4 Mr. Shiv Dutt Singh as regards rates of payment to be made by management to MW4 Mr. Shiv Dutt Singh are not consistent with each other. Notably, none of the agreements Ex.MW1/6 to Ex.MW1/16 bears the date on which it was signed by Mr. Shiv Dutt Singh and authorised signatory of the management and other persons. MW4 Mr. Shiv Dutt Singh in his cross - examination admitted that Ex.MW1/6 (colly) to Ex.MW1/16 (colly) does not bear the date under his signatures at point(s) - X. It is mentioned in the agreement(s) that agreement(s) have been made on 01st day of January of 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010. It is also mentioned in Page 21 of 27 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Radheyshyam Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 357/10 the Agreement(s) that the said Agreement(s) shall be enforcible from retrospective dates i.e. from 1st day of January as mentioned above. This clause would have been meaningful if and only if the signatory(s) to the said Agreement(s) would have also put dates of signatures on / execution of said Agreement(s). Also it is noted that it is not mentioned in the Ex.MW1/6 to Ex.MW1/16 that as to what nature of workforce MW4 Mr. Shiv Dutt Singh had agreed to provide to the management. These Agreement(s) Ex.MW1/6 to Ex.MW1/16 can be said to be vague in respect of material aspect of the agreement(s) and this vagueness coupled with inconsistencies in the depositions of MW1 Mr. Chandra Shkehar Singh and MW4 Mr. Shiv Dutt Singh in the totality of the facts and circumstances of this case indicates that infact these Agreement(s) are sham / bogus / camouflage. Also it is noted that MW1 Mr. Chandra Shekhar Singh in his cross - examination deposed that, "... Alongwith the bill Labour Contractor Shiv Dutt used to submit attendance sheets.....". But MW4 Mr. Shiv Dutt Singh in his cross - examination deposed that, ".... It is correct that alongwith the bills I did not use to submit attendance sheet to the management.....".
MW1 Mr. Chandra Shekhar Singh in his cross - examination deposed that, "....... the bills used to be processed and sanctioned by the then HR Manager. HR Manager used to keep track of as to how many workers attended duties on particular day / every day. Mr. Jitender Sharma used to verify the attendance of the workman on each day of work......". Above depositions of MW1 Mr. Chandra Shekhar Singh are not worth credence from judicial mind inasmuch as during the relevant period MW1 Mr. Chandra Shekhar Singh was not in the employment of management. Above depositions of MW1 Mr. Chandra Shekhar Singh are not made out of the record produced by management on judicial file. MW4 Mr. Shiv Dutt Singh in his cross - Page 22 of 27 (ANAND SWAROOP AGGARWAL)
POLC XI/KKD/DELHI/30.04.2015 Radheyshyam Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 357/10 examination deposed that, "..... It is correct to suggest that bills Ex.MW4/3 does not bears the signatures of sanctioning / processing authority of the management.............". In such circumstances, the depositions of MW1 Mr. Chandra Shekhar Singh to the effect that, "............. The bills used to be processed and sanctioned by the then HR Manager....." are looses credence from the judicial mind inasmuch as in normal course of accounting business a processing / sanctioning authority is expected to sign (or at least put initials) on every bill processed / sanctioned by it. ALSO, MW1 Mr. Chandra Shekhar Singh in his cross - examination on 22.02.2014 deposed that, "......... Payments used to be made to the workman in the presence of representative of the management and payments sheets used to be countersigned by the representative of the management..". However, in his cross - examination conducted on 03.05.2014 MW1 Mr. Chandra Shekhar Singh deposed that, "It has not been verified by representative of the management that payments made vide Ex.WW1/M1x have been made in the presence of such representative of the management and there is no certificate attached to the document Ex.WW1/M1x by the representative of the management certifying that payments have been verified by him (vol. it is alright that there is no noting regarding the verification / certification but as a matter of fact payments were made in the presence of representative of the management. Also the counter signatures of the representative of the management are not there)......". The above voluntary depositions are patently false inasmuch as at the relevant point of time MW1 Mr. Chandra Shekhar Singh was not in the employment of management and there is no basis for him to make abovesaid voluntarily depositions which are not based on records available on judicial file. SIMILARLY the depositions of MW1 Mr. Chandra Shekhar Singh to the effect that, "......Documents Ex.WW1/4 (colly. 13 pages) do not bears signatures of production engineer and maintenance engineer of the management on each page. (Vol. Page 23 of 27 (ANAND SWAROOP AGGARWAL)
POLC XI/KKD/DELHI/30.04.2015 Radheyshyam Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 357/10 the documents Ex.WW1/4 (colly.) remain lying in the maintenance department unattended and anybody can use such documents as per his convenience)....." are not worth reliance from the judicial mind inasmuch as in the absence of employment with management at the relevant point of time there was no reason for MW1 Mr. Chandra Shekhar Singh to deny the signatures of production engineer and maintenance engineer on each page of Ex.WW1/4 (colly.13 pages). MW4 Mr. Shiv Dutt Singh in his examinationinchief deposed that, "..... I was supervising the work of Radhey Shyam.....".
In his crossexamination MW4 Mr. Shiv Dutt Singh deposed as under:
"..... However, my job as a labour contractor is to provide labour in the factory owned by the management to get the work done in the factory premises owned by the management under my own supervision...................................... Q. It is put to you that workman was not working under your control and supervision and infact he was working under the control and supervision of Production Engineer and Maintenance Engineer of M/s Kenmore Vikas India Pvt. Ltd. What you have to say?
A. Workman was working under my control. I did not used to sign the slips i.e.Ex. WW1/4 have already deposed that he was working as helper to the electricians.
My job was simply to provide labouruers for the work of the management and to guide the workers regarding their work. It is correct to suggest that labourers provided by me used to work under the maintenance engineer of the management.
Thus, MW4 Mr. Shiv Dutt Singh has failed to maintain consistency in his depositions regarding workman working under his control and supervision. Also, notably, keeping in view the large number of labourers allegedly employed by MW4 Mr. Shiv Dutt Singh and allegedly provided to different managements (as submitted by ld. counsel for management) like the management herein it is not possible for Mr. Shiv Page 24 of 27 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Radheyshyam Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 357/10 Dutt Singh to control and supervise the work of all / each of such labourers. When Agreements Ex.MW1/6 to Ex.MW1/16 have been held to be sham / bogus / camouflage, the fact that name of workman appears in ESI and EPF Returns / Records of MW4 Mr. Shiv Dutt Singh is to no legal consequences. Notably even MW4 Mr. Shiv Dutt Singh has not produced any appointment letter of workman Radhey Shyam. The fact that name of workman Radhey Shyam does not appear in the ESI / PF Returns / Records of management is also to no legal consequence and does not in any way attack the reliability of the case of workman. Workman in the statement of claim pleaded that no appointment letter was issued to him by management. Management has not produced appointment letter(s) of any of the employees whose ESI / EPF Returns / Records have been produced by management. In such circumstances, the possibility of management employing the workman also without issuing any appointment letter cannot be ruled out altogether. Here the fact that in the statement of claim there are no averments regarding the Agreement(s) between management and Mr. Shiv Dutt Singh being sham / bougus / camouflage is also to no consequences inasmuch as workman is claiming himself of to be an employee of the management itself and the Agreement(s) are matter of defence / stand of the management and it is for the management to prove the bonafides / genuineness of such Agreement(s). Management was given full opportunity in this regard which management did avail. The case laws relied upon by ld. counsel for management has no application in the totality of facts and circumstances of this case. The case laws cannot be interpreted like statutes and each case is to be decided keeping in view its peculiar facts and circumstances as made out on the basis of material available on judicial file. This conclusion, further, in the facts and circumstances of this case, make this Court to the conclude management did terminate services of workman illegally on 15.07.2009 as Page 25 of 27 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Radheyshyam Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 357/10 pleaded / deposed by workman. Even MW4 Mr. Shiv Dutt Singh has not deposed as to under what circumstances workman ceased to be in the employment of Mr. Shiv Dutt Singh after having allegedly remained in his employment since 01.10.2004 till 31.07.2009. Statement of claim filed by workman suggest that workman is alleging violation of provisions of section 25F of the Industrial Disputes Act, 1947 by the management at the time of termination of his services and workman is held to have been successful in proving the same on judicial file.
MERELY BECAUSE, management terminated the services of workman in violation of provisions of section 25F of the Industrial Disputes Act, 1947 does not mean that workman is automatically entitled to reinstate in service with management with full back wages. Here, keeping in view the issues which have already arisen between the parties, in my considered opinion, order for reinstatement of workman with management may not result in peaceful industrial relations between the parties. Hence, reinstatement is declined. Workman in the evidence affidavit attested on 01.03.2013 deposed that workman in unemployed inspite of his efforts. Except these bald depositions there is nothing on judicial file to show that workman did make sincere serious efforts for getting fresh employment. Further, as per depositions of MW5 Mr. P. K. Thakur workman was employed with M/s. Amar Udyog from October 2011 to February 2014. Further, WW1 Mr. Radhey Shyam in his cross - examination deposed that, ".......... My family consists of 5 person myself, wife and three children. My family expenses are around Rs. 2500/ - 3000/ and I also get agricultural produce from my agricultural land. I get above said Rs.2500/ 3000/ after doing Mazduri at the agricultural land. It is wrong to suggest that I was employee of the contractor......".
Thus, workman is held to be not entitled to full back wages.
In my considered opinion, in the totality of facts and circumstances of this case, Page 26 of 27 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015 Radheyshyam Vs. M/s. Kenmore Vikas (India) Private Limited ID No. 357/10 grant of lump sum compensation to the tune of Rs.60,000/ (Rupees Sixty Thousand only) to the workman for illegal / unjustified termination of his services by the management and for consequences thereof / back wages would meet the ends of justice. If this amount of Rs.60,000/ (Rupees Sixty Thousand only) is not paid to workman within one month of award coming into force management shall be liable to pay interest @ 9% per annum on this amount from the date of the award till its payment. A sum of Rs.15,000/ (Rupees Fifteen Thousand only) is also awarded to workman as costs of litigation payable by the management. ISSUES No. 2 and 3 are decided accordingly.
ISSUE No. 4: Relief, if any.
As above.
9. Reference is answered accordingly.
10. A copy of the award be sent to the Office of the concerned Deputy Labour Commissioner for further necessary action.
11. File be consigned to Record Room after completing due formalities. PRONOUNCED IN THE OPEN COURT ON 30.04.2015.
(ANAND SWAROOP AGGARWAL) POLCXI, Karkardooma Courts, Delhi Page 27 of 27 (ANAND SWAROOP AGGARWAL) POLC XI/KKD/DELHI/30.04.2015