Delhi District Court
Sh. Mahender Sah vs M/S Synergy Recyclers on 11 May, 2018
IN THE COURT OF SH. RAKESH KUMAR 1
PRESIDING OFFICER LABOUR COURTX DWARKA
COURTS, NEW DELHI.
Ref. No. : F.3(382)13/Ref./WD/Lab./602
Dated : 25.02.2014
I.D No.4593/16
Sh. Mahender Sah,
S/o Sh. Rameshwar Sah,
R/o E100, Om Vihar,
Uttam Nagar, New Delhi.
C/o Rashtriya General Mazdoor Union (Regd.),
B239, Karampura, New Delhi15. ........ Workman.
VERSUS
M/s Synergy Recyclers,
Plot No.48/25/20, Hastal Gaon,
Uttam Nagar, New Delhi59. ......... Management.
Date of Institution of the case : 26.03.2014
Date on which reserved for Award : 11.05.2018
Date on which Award is passed : 11.05.2018
:A W A R D:
The workman named above raised an industrial dispute before
the Labour Department against the termination of his services by the
management claiming that his services have been terminated by the
management illegally and unjustifiably and the appropriate Government on
being satisfied with regard to existence of an industrial dispute between the
parties, referred the dispute to the Court for adjudication under Section 10
(I) (c) and 12 (5) of the Industrial Disputes Act vide Ref. no.: F.3(382)13/
Ref./WD/Lab./602 dated 25.02.2014 with the following terms of reference:
I.D.No.4593/16 Page 1 out of 14
"Whether the services of Sh. Mahender Sah S/o
Sh. Rameshwar Sah have been terminated
illegally and/ or unjustifiably by the
management; and if so, to what relief is he
entitled and what directions are necessary in this
respect?"
Fresh reference was received in the matter on 26.03.2014 and
thereafter, the notice was issued to the workman. Statement of claim was
filed by the workman, in which it is stated by the workman that workman
was working with the management on the post of helper at last drawn
monthly wages of Rs.6,500/ and he was working with the management
since April, 2008. The management did not issue any appointment letter to
workman. The management used to take two hours extra work per day
from the workman but did not pay even a single penny towards over time to
him. The management also enrolled his name in his record since the date of
his joining but management did not provide legal facilities i.e. appointment
letter, minimum wages, casual leave, ESI, Pay Slip, PF, over time wages,
HRA, Attendance Card, Leave Encashment, Leave Book to workman and
workman used to demand from management to provide the above said legal
facilities, but the management has not provided the same to him. In the year
2012, the management filled upon the ESI Form of workman and the
management did not provide the other legal facilities to him. The
management became annoyed with workman, when he demanded the said
legal facilities from the Management, and it started to get rid of the
workman but failed and on 31.07.2013, the management has illegally
terminated the workman from his services without any rhyme or reason,
I.D.No.4593/16 Page 2 out of 14
without paying the earned wages for the months of June and July, 2013 that
too without conducting any domestic enquiry against him. The management
has violated the provisions of Section 25F and G of I D Act. The workman
had filed a complaint against the management before the Assistant Labour
Commissioner, Nimari Colony, New Delhi and on this complaint, the
Labour Inspector had visited the establishment of management and he gave
advise to management to reinstate the workman and to pay his unpaid
wages but the management neither reinstate the workman not paid the
unpaid wages to him. The claimant sent a Demand Notice to the
management on 08.09.2013 but despite of service, the Management took no
action nor replied to the said Demand Notice nor reinstated the workman on
the job. The workman had filed his statement of claim before the Assistant
Labour Commissioner but of no avail. The workman had worked for more
than 240 days with the management in any preceding year. After the illegal
termination, the workman searched the job at many places but could not
find any job and since then he is unemployed. Hence, the workman has
prayed that an award of reinstatement of his service with full back wages
with all other consequential benefits may be passed in favour of the
workman and against the management.
Notice of the statement of claim was issued to the management
and accordingly management appeared in the Court through its Authorized
Representative and filed its written statement wherein it has taken
objections that the workman has not approached the court with clean hand
and present claim has been filed with the sole motive to extort money from
the management. The management is in the scrap rubber product business
of Synergy Recyclers having its Registered Office at Plot No.48/25/20,
I.D.No.4593/16 Page 3 out of 14
Hastal Village, Uttam Nagar, New Delhi59. The management started this
business from 17.05.2008 with three employees and as the business
continued to grow with time, more employees were joined in. The workman
joined the management company on 01.04.2012 and when he joined,
number of employees at that time were nine. The workman registered the
workman's name in ESIC on 25.06.2012. The workman used to take many
leaves, that too without any prior information most of the times. Further
the workman mostly used to come to office after drinking liquor and
misbehaved with the staff. Whenever other employees complained to
management about workman's bad behaviour, he used to say sorry and
make false promises of not doing such things again in future. Further on
10.07.2013, workman came in office after drinking liquor and misbehaved
with staff again. Management warned the workman for his ridiculous
intolerable behaviour but workman shouted over management, used abusive
language and gave threats to employer for filing complaint against them in
Labour Court, with the help of some Union. The workman stopped coming
to office after 10.07.2013 on his own choice. The workman complained to
the Labour Inspector and Labour Inspector served notice to the
management. The management presented before the Labour Inspector on
29.07.2013 and gave a sum of Rs.2,400/ to the workman as 10 days salary
from 01.07.2013 to 10.07.2013 and also agreed to keep the workman on
workman with the conditions that he will not misbehave in the office
premises. Accordingly, workman again joined the management company
on 30.07.2013 but workman's intentions were not good as he was seen
taking pictures of office in unlawful manner on the same day and he left
office before lunch. The workman is claiming to have joined Synergy
I.D.No.4593/16 Page 4 out of 14
Recycles in April, 2008, whereas, the Synergy Recycler was found in
17.05.2008. Further in his first complaint, the workman has stated that he
was not provided with ESIC, whereas now the workman admitted that the
ESIC benefits were availed by him.
The rejoinder to the Written Statement was filed by the
workman where he is reiterated and reconfirmed the averments made in the
Statement of claim and denied and controverted the averments made by the
management in the Written Statement.
From the pleadings of the parties, the following issues were
framed vide order dated 22.09.2015:
(i) Whether the claimant/workman came to the office
of the management on 10.07.2013 after drinking
liquor and misbehaved with the staff of the
respondent, behaved in an indecent manner and used
abusive language, threatened the employer, if so, its effect? OPM
(ii) Whether the workman himself stopped coming for duty after 10.07.2013 and thereby abandoned the job himself as alleged by the management, if so, its effect? OPM
(iii) Whether the management has made the payment of Rs.2,400/ to the workman towards 10 days salary from 01st July, 2013 to 10th July, 2013 in the presence of Labour Inspector as alleged by the management, if so, its effect? OPM
(iv) Whether the services of the workman were I.D.No.4593/16 Page 5 out of 14 terminated by the management illegally and unjustifiably as claimed by the workman, if so, its effect? OPW
(v) Whether the workman is entitled to the relief claimed in the statement of claim? OPW
(vi) Relief.
No other issue arose or pressed and the case was adjourned for workman evidence.
Thereafter on 13.10.2016, workman appeared in the witness box as WW1 and tendered his evidence by way of affidavit as Ex.WW1/A. He has relied upon documents Ex.WW1/1 to Ex. WW1/3. Ex.WW1/1 is the carbon copy of Demand Notice dated 08.09.2013; Ex.WW1/2 is the original postal receipt and Ex.WW1/3 is the carbon copy of statement of claim filed before Assistant Labour Commissioner. Then the case was fixed on 04.01.2017 for cross examination of workman by management, as none was present on behalf of management on that day. Thereafter, workman did not appear before the court, except on 05.04.2017 and vide order dated 30.10.2017, the opportunity of the workman to complete its evidence was closed and the case was fixed for management evidence for 05.02.2018. On 05.02.2018, none appeared on behalf of management and as such the case was adjourned for 27.02.2018 for management evidence. On 27.02.2018, nobody was present on behalf of management but an application on behalf of workmen was moved for setting aside the order dated 30.10.2017 and for reopening of workman evidence. Since nobody was present on behalf of the management on that day, so application was taken on record and the case was fixed for 05.04.2018 for reply and arguments on the said application.
I.D.No.4593/16 Page 6 out of 14 On 05.04.2018 also neither anybody was present on behalf of management nor any reply to the application was filed and in these circumstances, application of workman was allowed and the workman was given an opportunity to complete its evidence i.e. by way of facing the cross examination by the management subject to payment of cost of Rs.800/ and the case was fixed for 26.04.2018. On 26.04.2018 also, nobody appeared on behalf of management despite of several calls to cross examine the workman and accordingly opportunity of the management to cross examine WW1 was closed and case was fixed for today for leading of management evidence. Today also, none appeared on behalf of management and accordingly, opportunity of management to lead evidence was closed vide the order of even date and final arguments were also heard in details. File perused.
Issue wise discussion is as under: For the sake of convenience, I shall take issue no.1, 2 & 3 together.
:ISSUE No.1, 2 & 3:
(i) Whether the claimant/workman came to the
office of the management on 10.07.2013 after
drinking liquor and misbehaved with the staff of the respondent, behaved in an indecent manner and used abusive language, threatened the employer, if so, its effect? OPM
(ii) Whether the workman himself stopped coming for duty after 10.07.2013 and thereby abandoned the job himself as alleged by the management, if I.D.No.4593/16 Page 7 out of 14 so, its effect? OPM
(iii) Whether the management has made the payment of Rs.2,400/ to the workman towards 10 days salary from 01st July, 2013 to 10th July, 2013 in the presence of Labour Inspector as alleged by the management, if so, its effect? OPM The onus to prove these issues have been placed upon the management.
In its Written Statement, the management has claimed that management is in the scrap rubber product business of Synergy Recyclers having its Registered Office at Plot No.48/25/20, Hastal Village, Uttam Nagar, New Delhi59. The management started this business from 17.05.2008 with three employees and as the business continued to grow with time, more employees were joined in. The workman joined the management company on 01.04.2012 and when he joined, number of employees at that time were nine. The workman registered the workman's name in ESIC on 25.06.2012. The workman used to take many leaves, that too without any prior information most of the times. Further the workman mostly used to come to office after drinking liquor and misbehaved with the staff. Whenever other employees complained to management about workman's bad behaviour, he used to say sorry and make false promises of not doing such things again in future. Further on 10.07.2013, workman came in office after drinking liquor and misbehaved with staff again. Management warned the workman for his ridiculous intolerable behaviour but workman shouted over management, used abusive language and gave threats to employer for filing complaint against them in Labour Court, with I.D.No.4593/16 Page 8 out of 14 the help of some Union. The workman stopped coming to office after 10.07.2013 on his own choice. The workman complained to the Labour Inspector and Labour Inspector served notice to the management. The management presented before the Labour Inspector on 29.07.2013 and gave a sum of Rs.2,400/ to the workman as 10 days salary from 01.07.2013 to 10.07.2013 and also agreed to keep the workman on workman with the conditions that he will not misbehave in the office premises. Accordingly, workman again joined the management company on 30.07.2013 but workman's intentions were not good as he was seen taking pictures of office in unlawful manner on the same day and he left office before lunch. The workman is claiming to have joined Synergy Recycles in April, 2008, whereas, the Synergy Recycler was found in 17.05.2008.
In support of its said claim/defence, the management has neither led any evidence on record nor lead any arguments, so these issues are liable to be decided against the management. Same stand decided accordingly.
:ISSUE No.4: Whether the services of the workman were terminated by the management illegally and unjustifiably as claimed by the workman, if so, its effect? OPW The onus to prove this issue is placed upon the workman.
In his Statement of Claim, the workman has claimed that workman was working with the management on the post of helper at last drawn monthly wages of Rs.6,500/ and he was working with the management since April, 2008. The management did not issue any I.D.No.4593/16 Page 9 out of 14 appointment letter to workman. The management used to take two hours extra work per day from the workman but did not pay even a single penny towards over time to him. The management also enrolled his name in his record since the date of his joining but management did not provide legal facilities i.e. appointment letter, minimum wages, casual leave, ESI, Pay Slip, PF, over time wages, HRA, Attendance Card, Leave Encashment, Leave Book to workman and workman used to demand from management to provide the above said legal facilities, but the management has not provided the same to him. In the year 2012, the management filled upon the ESI Form of workman and the management did not provide the other legal facilities to him. The management became annoyed with workman, when he demanded the said legal facilities from the Management, and it started to get rid of the workman but failed and on 31.07.2013, the management has illegally terminated the workman from his services without any rhyme or reason, without paying the earned wages for the months of June and July, 2013 that too without conducting any domestic enquiry against him.
On the other hand, in its Written Statement the management has claimed that the workman is claiming to have joined Synergy Recycles in April, 2008, whereas, the Synergy Recycler was found in 17.05.2008. The workman joined the management company on 01.04.2012 and his name was registered in ESIC on 25.06.2012. The workman used to take many leaves, that too without any prior information most of the times. Further the workman mostly used to come to office after drinking liquor and misbehaved with the staff. On 10.07.2013, workman came in office after drinking liquor and misbehaved with staff again and when workman was warned of his bad behaviour, he shouted over management, used abusive I.D.No.4593/16 Page 10 out of 14 language and gave threats to employer for filing complaint against them in Labour Court, with the help of some Union. The workman stopped coming to office after 10.07.2013 on his own choice. Upon the complaint of workman before Labour Inspector, management appeared before the Labour Inspector on 29.07.2013 and gave a sum of Rs.2,400/ to the workman as 10 days salary from 01.07.2013 to 10.07.2013 and also agreed to keep the workman on workman with the conditions that he will not misbehave in the office premises. Accordingly, workman again joined the management company on 30.07.2013 but workman's intentions were not good as he was seen taking pictures of office in unlawful manner on the same day and he left office before lunch.
In order to discharge the onus, the workman has himself appeared in the witness box as WW1. In his evidence tendered by way of affidavit, the workman has reiterated that he was working with the management on the post of helper at last drawn monthly wages of Rs.6,500/ and he was working with the management since April, 2008. The management used to take two hours extra work per day from the workman but did not pay even a single penny towards over time to him. The management also enrolled his name in his record since the date of his joining but management did not provide legal facilities i.e. appointment letter, minimum wages, casual leave, ESI, Pay Slip, PF, over time wages, HRA, Attendance Card, Leave Encashment, Leave Book to workman and workman used to demand from management to provide the above said legal facilities, but the management has not provided the same to him. In the year 2012, the management filled upon the ESI Form of workman and the management did not provide the other legal facilities to him. The I.D.No.4593/16 Page 11 out of 14 management became annoyed with workman, when he demanded the said legal facilities from the Management, and it started to get rid of the workman but failed and on 31.07.2013, the management has illegally terminated the workman from his services without any rhyme or reason, without paying the earned wages for the months of June and July, 2013 that too without conducting any domestic enquiry against him.
On the contrary, management led no evidence in support of its defence that workman used to take many leaves, that too without any prior information most of the times and mostly he used to come to office after drinking liquor and misbehaved with the staff and on 10.07.2013, workman came in office after drinking liquor and misbehaved with staff again and when workman was warned of his bad behaviour, he shouted over management, used abusive language and gave threats to employer for filing complaint against them in Labour Court, with the help of some Union. The workman stopped coming to office after 10.07.2013 on his own choice. As per the claim of workman, he was working with the management on the post of helper at last drawn monthly wages of Rs.6,500/ and he was working with the management since April, 2008 and his services were terminated by the management on 31.07.2013 illegally and unjustifiably. Regarding date of employment, it has been stated in the Written Statement that workman joined the company on 01.04.2012 (however, there is nothing on record placed regarding the said fact). Since the employment of the workman with the management is admitted fact, it is for the management to prove that the workman did not join his duties after 10.07.2013. As such there is nothing on record to show that the workman himself did not turn up to join his duties from 10.07.2013 onwards. No I.D.No.4593/16 Page 12 out of 14 letter/correspondence or postal receipts / acknowledgment card etc has been placed on record on behalf of management to show that workman was called through the same to join his duties. Accordingly, it is held that the services of the workman were terminated by the management. Since no notice, notice pay, compensation or any other consequential benefits were given to the workman prior to termination of his services, the termination of the services of the workman by the management on 31.07.2013 is illegal and unjustified. Issue no.4 is accordingly, decided in favour of the workman and against the management.
:ISSUE No.5:
(v) Whether the workman is entitled to the relief claimed in the statement of claim? OPW In view of my findings on foregoing issues, this issue is liable to be decided in favour of workman and same stands decided accordingly. :RELIEF: In his statement of claim the workman has prayed for a directions to the management to reinstate the workman, continuity of service with full back wages alongwith consequential benefits etc. and also prayed to pass an order of earned wages for the month of June and July, 2013 in favour of workman and against the management but in the considered opinion of the court this is not a fit case for the reinstatement, as a considerable period of time has been elapsed and the end of justice will be served if a lumpsum compensation is awarded to the workman instead of reinstatement, backwages, and other consequential benefits. Accordingly, in view of the above discussion and terms of reference, and keeping in view the tenure of service of the workman with the management and his last I.D.No.4593/16 Page 13 out of 14 drawn salary a lumpsum compensation of Rs.50,000/ (Rupees Fifty Thousand Only) is awarded to the workman instead of reinstatement and backwages and other consequential benefits. The management is directed to pay the said compensation amount of Rs.50,000/ (Rupees Fifty Thousand Only) to the workman within three months from the date of publication of award. If the management failed to pay the said amount of Rs.50,000/ (Rupees Fifty Thousand Only) to the workman within the stipulated period, the workman is at liberty to get recover the said compensation amount of Rs.50,000/ (Rupees Fifty Thousand Only) from the management along with an interest @ 7% p.a. from the date of passing of award till the date of recovery of the amount of compensation. The award is passed accordingly and reference is answered accordingly. Requisite number of copies of this award be sent to the competent authority for necessary compliance. File be consigned to the Record Room.
Announced in the open Court
on 11.05.2018 (RAKESH KUMARI)
Presiding Officer Labour CourtX
Dwarka Courts, Delhi.
Digitally signed
by RAKESH
RAKESH KUMAR
KUMAR Date:
2018.05.14
15:01:12 +0530
I.D.No.4593/16 Page 14 out of 14