Delhi District Court
Dharamveer & Anr. vs . M/S. Digi Cables Networks (India) Pvt. ... on 23 September, 2014
Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI:
KARKARDOOMA COURTS: DELHI
REFERENCE CASE (ID) No. 470/12
UNIQUE CASE ID No. 02402C0370652012
In the matter of:
1.Dharamveer s/o. Sh. Sant Ram R/o. WZ572, Narayana Vihar, New Delhi 110028
2. Sunny s/o. Sh. Ashok Kumar Both C/o. Shramjivi Vikas Union (Regd.), C7, Khajan Basti, Nangal Raya, New Delhi - 110046 ......... Workmen Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD., (To be correct - DIGICABLE NETWORK (INDIA) PRIVATE LIMITED as per Ex. MW1/2 - The Certificate of Incorporation).
C21/A, Mansarover Garden, New Delhi 110015 .......... Management Date of Institution : 21.12.2012 Date of reserving for award : 19.09.2014 Date of award : 23.09.2014 AWARD 1. TERMS OF REFERNCE.
Vide Order No. F3(393)12/Ref./WD/LAB/1891 dated Page 1 to 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI:23.09.2014 Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12 20.11.2012 Deputy Labour Commissioner (West District), Labour Department, Government of N.C.T. of Delhi, Karampura, New Delhi
- 110015 made following reference under section 10 (1) (c) and 12 (5) of the Industrial Disputes Act, 1947 vide Government of N. C. T. of Delhi, Labour Department Notification No.F.1/31/616/Estt/2008/7458 dated 3rd March, 2009 for adjudication by this Court: "Whether the services of workmen Sh. Dharamveer S/o Sh. Sant Ram and Sh. Sunny S/o. Sh. Ashok Kumar has been terminated illegally and/or unjustifiably by the management; and if so, to what relief are they entitled and what directions are necessary in this respect?"
2. CASE OF WORKMAN (MR. DHARAMVEER) AS PLEADED IN STATEMENTOFCLAIM.
(Note: Vide order dated 02.04.2013 Mr. Sanjay Sharma AR for workman stated that coworkman Mr. Sunny is not in his contact since long. He also made a noting in this regard on the margin of ordersheet dated 02.04.2013)
(i) Workman Dharamveer had been in employment of management since 01.02.2011 as 'Sweeper' (Semi - skilled) with his last drawn salary of Rs.7010/ p.m. till the date termination of his services i.e. 02.05.2012.
(ii) Workman had performed his duties to the entire satisfaction of
Page 2 to 29 (ANAND SWAROOP AGGARWAL)
PO-LC- XI: KKD: DELHI:23.09.2014
Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12
management and never gave any opportunity of complaint to management as regards his work and behaviour, therefore, workman had blameless service record which is credit to him.
(iii) Management just to avoid its liabilities under various laws are / were not following the rules and regulations and had not provided minimum facilities as provided in various laws and even had not provided ESI and PF facilities from the date of appointment, had not provided attendance card, had not been maintaining proper records of service and had not been paying overtime wages. It was not providing C.L. / P. L., yearly increment, bonus and festival off etc.
(iv) Workman was in regular and continuous demand of aforesaid legal facilities orally from the management but management lingered on the same on one pretext or other and, during the course of employment on several occasions, management to provide the same obtained signatures / thumb impression of workman on blank papers, vouchers etc. with the false assurance for providing the same but failed to provide the same till date and there is every apprehension that management can make misuse of those documents against the workman just to grab the legal claim of workman.
(v) Due to regular and continuous demand of above mentioned legal facilities by workman, management got annoyed with workman Page 3 to 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI:23.09.2014 Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12 and to teach lesson conspired against workman by delaying the payment of earned wages and stopped paying earned wages and withheld the same for the period from 01.01.2012 to 02.05.2012 and, on demand of the same again and again, management all of sudden orally terminated the services of workman on 02.05.2012 after extending threat for facing with dire consequences in case workman shall take any legal action against the management, without giving any reason, notice, notice pay, retrenchment compensation, earned wages, earned leave and all other benefits due to workman, without issuing any show cause notice and without conducting domestic enquiry.
(vi) Termination of services of workman in this fashion is illegal, unjustified, unwarranted and against the principle of natural justice and in violation of section 25F of Industrial Disputes Act, 1947 besides being on act of victimization and unfair labour practice and same amounts to illegal retrenchment.
(vii) The work which was taken from the workman was of permanent nature and management kept another person in place of workman after terminating his services.
(viii) After termination of his services, workman visited the management on several occasions but management instead of putting Page 4 to 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI:23.09.2014 Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12 him back on job started extending threat for false implication to workman in false criminal case, in case if workman visits the management again and again. Workman wants to join his duties back but it is the management which is not allowing the workman to join back the services.
(ix) Workman to get back the employment and against withholding of earned wages got sent a demand notice dated 21.05.2012 by post through his union to management which was duly served upon management but management neither reinstated the workman in service nor cleared his dues towards the management.
(x) To get back the employment, workman got made complaints to the department through his union on 17.05.2012 but due to adverse attitude and anti labour practice of management all the efforts made by labour inspector went fruitless and labour inspector handed over his failure report to union of the workman.
(xi) Due to adverse attitude and anti labour practice of management, the management compelled the workman to raise an industrial dispute against illegal termination from service and, accordingly, workman filed statement of claim before the Conciliation Officer and on issuance of notices the management appeared but remained adamant on their antilabour practice and Page 5 to 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI:23.09.2014 Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12 under those circumstances matter could not settled there and no option was left to conciliation offer except to refer the present dispute to the Court for proper adjudication. Hence, this reference.
(xii) Workman is unemployed since the date of termination from services till the date. Despite his best efforts for the same workman could not get any alternative employment and due to this reason workman is totally dependent upon his family, relatives, near & dears because of wrong doing of management.
(xiii) Workman never ever absented from his duties nor ever left the job of his own or ever settled his accounts with management in full and final and wants to join the services back but it is management who is not allowing the workman to join the services back nor paid his accrued dues.
With these averments, workman prayed for passing an award in favour of workman and against the management directing the management to reinstate the workman with full back wages and continuity of services with all consequential benefits and cost of conducting these proceedings.
3. CASE OF MANAGEMENT / DEFENDANT AS PLEADED IN WRITTEN STATEMENT OF DEFENCE.
Management, while denying the case as pleaded by workman Page 6 to 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI:23.09.2014 Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12 in the statement of claim in toto, pleaded that management entered into an agreement on 01.03.2011 with M/s. Virtuous Security & Facility Management Pvt. Ltd. to avail Housekeeping and Hospitality services of said company. The said company started providing the Housekeeping and Hospitality services from 15.03.2011 and Mr. Dharamveer was dispatched by said company alongwith other workers (employee of the company) to management's premises for discharging contractual obligations (Housekeeping and Hospitality services) on 15.03.2011. In the month of March 2012, said company posted / transfered Dharamveer to one of their sites.
Further, management pleaded that during the service tenure with management workman Dharamveer discharged his duties with reasonable complaints and workman at times absented himself without prior intimation. Management also pleaded that it is a law abiding corporation and is fully conscious of its duties and statutory compliance. Further, management pleaded that clause 8 of agreement between the said company and management provides that company shall be employer and it is the duty of company to comply with statutory requirements such ESI, EPF, relieving charges and service charges etc. and also clause no. 28 of agreement explicitly provides the manner in which management ensures the compliance of Page 7 to 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI:23.09.2014 Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12 PF and ESIC. As pleaded by management, it never took the signatures / thumb impressions of Dharamveer on the blank papers, vouchers etc. Management rather ensured all facilities to the contract workers including Mr. Dharamveer. Further, management pleaded that salary to Mr. Dharamveer was never paid by management and nor is the management liable to pay any salary to workman. Mr. Dharamveer is / was not the employee of management and hence cannot terminate his services. As the workman was posted / transfered by said company to one of their other sites and, hence, Mr. Dharamveer stopped attending the office premises of management from March 2012. The abovesaid company has issued transfer order on 29.05.2012. Admittedly, management received the demand notice dated 21.05.2012. As pleaded, pursuant to said notice management explained the true position to Mr. Dharamveer but all went in vain. Further, admittedly, workman made a complaint to department through union and, as pleaded, once again both the company and management explained the true position to Mr. Dharamveer in the presence of labour inspector in labour office and also issued the transfer order but Mr. Dharamveer paid no heed to the same. Management during conciliation proceedings also reiterated its above stand. Management pleaded ignorance about the unemployment of Page 8 to 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI:23.09.2014 Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12 the workman. Further, management pleaded that Mr. Dharamveer is an employee of the company and any claim should be filed against the Company not the management. Workman has no cause of action against management. At last, management prayed for dismissal of the claim with heavy cost.
4. REJOINDER The workman despite opportunity given did not file any rejoinder to the written statement of management.
5. ISSUES Vide order dated 19.09.2013 following issues were framed:
(i) In terms of reference.
(ii) Whether the workman Dharam Veer was engaged by M/s. Virtuous Security & Facility Management Pvt. Ltd. who had taken contract from the Management regarding Housekeeping and Hospitality Services? OPM.
(iii) Relief.
6. EVIDENCE.
To substantiate his case on judicial file workman appeared in the witness box as WW1 Dharamveer. Workman filed his evidence affidavit Ex.WW1/A reiterating the averments made in the statement of claim and also relied upon documents namely (i) Ex.WW1/1 -
Page 9 to 29 (ANAND SWAROOP AGGARWAL)
PO-LC- XI: KKD: DELHI:23.09.2014
Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12
Demand notice dated 21.05.2012 sent to management by workman;
(ii) Ex.WW1/2 Postal receipt dated 21.05.2012; (iii) Ex.WW1/3 Complaint dated 17.05.2012 made to Assistant Labour Commissioner; (iv) Ex.WW1/4 - Statement of claim filed before Conciliation Officer and Mark - A (colly.) Salary sheets. In the course of cross examination of WW1 Dharamveer management put document Ex.WW1/M1x - Transfer order. WE was closed on 04.03.2014 by Mr. Sanjay Sharma, Adv. for workman.
Management examined MW1 Mr. Virender Kumar, General Manager (Accounts) with the management. Management relied upon documents namely Ex.MW1/1 - Letter of Authority; Ex.MW1/2 - Certificate of Incorporation; Ex.MW1/3 - Agreement between management and company M/s. Virtuous Security & Facility Management Pvt. Ltd.; Ex.MW1/4 - Photograph of workers; Ex.MW1/5 - Copy of attendance register maintained by Supervisor; Ex. MW1/6 (colly.) (MarkedMark A) Monthly Reports; Ex.MW1/7 (Marked Mark B) - Invoice dated 31.03.2011; Ex.MW1/8 (colly.) - Photocopies of cheques; Ex. MW1/9 (colly.) (MarkedMark C) - Salary sheets; Ex. MW1/10 - Letter dated 23.05.2012 sent to Office of the Deputy Labour Commissioner (District West) by management; Ex. MW1/11 - Transfer order dated 29.05.2012; Ex. MW1/12 Page 10 to 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI:23.09.2014 Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12 Letter dated 01.06.2012 sent to Office of the Deputy Labour Commissioner (District West) by management; Ex. MW1/13 - Letter dated 16.07.2013 sent by Virtuous Security & Facility Management Pvt. Ltd to management; Ex. MW1/14 - E mail dated 19.08.2013 regarding discontinuation of service agreement with company:
Facility services. In the course of cross examination of MW1 Mr. Virender Kumar, document Mark A was exhibited as Ex. WW1/M1. It is noteworthy that management initially filed affidavit of Mr. Ashish Thakur in ME. But subsequently management examined MW1 Mr. Virender Kumar. ME was closed on 17.07.2014 by ld. counsel for management.
7. APPLICATION U/O.1 RULE 10 R/W S.151 CPC ALONGWITH SECTION 18(3)(b) OF INDUSTRIAL DISPUTES ACT, 1947.
At the stage of final arguments, workman moved on application u/o. 1 rule 10 r/w. Section 151 CPC alongwith section 18(3)(b) of the Industrial Disputes Act, 1947 for impleadment of M/s. Virtuous Security & Facility Management Pvt. Ltd. as necessary party in the array of the case. Management filed reply to this application. After hearing both the ld. counsel, this application was dismissed vide detailed order dated 01.09.2014.
Page 11 to 29 (ANAND SWAROOP AGGARWAL)
PO-LC- XI: KKD: DELHI:23.09.2014
Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12
8. ARGUMENTS
On 04.09.2014 none appeared for workman to address final arguments. Mr. Abhishek Sharma Adv. for management was heard. Ld. counsel for management relied upon case law reported as Mahindra & Mahindra Vs. The Presiding Officer and Anr. 2013 LLR11 and Subodh Kumar Vs. Presiding Officer, Labour CourtII, Meerut and Anr. 2012 LLR1249. Written arguments have also been filed by ld. counsel for management. Workman was given liberty to file written submissions at least two days prior to the next date of hearing (i.e. 10.09.2014) with advance copy to ld. counsel for management. On 10.09.2014 Ms. Risala Adv. for management appeared and submitted that talks of compromise are going on between the parties. Matter was adjourned to 17.09.2014 for compromise, if any/order. On 17.09.2014 court passed following order: "17.09.2014 Prt. Sh. Sanjay Sharma Adv. for workman.
Sh. Virender Kr. ARM (DM).
It is submitted by ld. cl. for workman that talks of settlement are going on between workman and the contractor in as much as today both of these parties are to attend Conciliation proceedings. In the interest of Justice matter is adjournment. Put up 19/9/2014 for Page 12 to 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI:23.09.2014 Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12 arg./settlement."
On 19.09.2014 following order was passed :
"ID No. 470/12
19.09.2014 Present: None for workman.
Ms. Shiksha Sharma, Assistant to Mr. Abhishek Sharma, adv. for management.
Authority letter filed. Be awaited for workman.
Sd/ (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 19.09.2014 Present: None for workman.
Mr. Abhishek Sharma, adv. for management with Ms. Shiksha Sharma and Mr. Virender Kumar, General Manager of the management.
Ld. counsel for management submits that he has not been supplied with copy of written submissions in terms of order dated 04.09.2014. Further, ld. counsel for management submitted that no talks of settlement between the workman and management of M/s DIGI Cable Network India Pvt. Ltd. are going on. Ld. counsel for management further submitted that now the Court should proceed with passing of order / award. Today despite repeated calls none has appeared for workman. Further wait for workman / his counsel is not justified. Right of the workman to address arguments stands forfeited in as much as despite Page 13 to 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI:23.09.2014 Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12 opportunities given workman has not cared to file written submissions nor anybody has appeared today to represent the workman despite repeated calls. Put up on 22.09.2014 at 4.00 PM for orders...".
9. My ISSUEWISE FINDINGS are as under: ISSUE NO.1 : In terms of reference.
("Whether the services of workmen Sh. Daramveer S/o Sh. Sant Ram and Sh. Sunny S/o Sh. Ashok Kumar has been terminated illegally and/or unjustifiably by the management; and if so, to what relief are they entitled and what directions are necessary in this respect?") ISSUE NO.2 :
Whether the workman Dharam Veer was engaged by M/s. Virtuous Security & Facility Management Pvt. Ltd. who had taken contract from the Management regarding Housekeeping and Hospitality Services? OPM.
Both the issues being interconnected are being taken up under a common discussion. Here case of workman is that he was appointed by management on 01.02.2011 as sweeper and his services were terminated illegally/unjustifiably on 02.05.2012. On the other hand case of management is that it availed the services of workman w.e.f. 15.03.2011 through M/s. Virtuous Security & Facility Management Pvt. Ltd. with whom management entered into contract to avail Housing and Hospitality services from the said company and Page 14 to 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI:23.09.2014 Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12 in the month of March 2012, the said company posted/transferred the workman Dharamveer to one of their other sites. Ld. counsel for management also submitted that the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 are not applicable in this case in as much as vide Agreement Ex. MW1/3 it employed only 14 contract labour employees and provisions of the Contract Labour (Regulation and Abolition) Act, 1970 are applicable only if an establishment employs twenty or more workmen as contract labour.
(Vide section 1(4)(a) of the Contract Labour (Regulation and Abolition Act, 1970).
At the outset it is noted that WS of management has been signed by Mr. Rajesh Shah, Assistant Manager on the basis of Resolution Mark X (dated 1.11.13). Resolution Mark X reads as under: "CERTIFIED TRUE COPY OF EXTRACTS OF MINUTES OF THE MEETING OF THE BOARD OF DIRECTORS OF DIGICABLE NETWORK (INDIA) PRIVATE LIMITED HELD ON MONDAY, 15th JULY, 2013.
Authority to Mr. Rajesh Shah It was stated that one MR. Dharam Veer Singh has instituted a suit against the Company in Karkardooma Court at New Delhi claiming certain reliefs. Dharam Veer Singh was not an employee of the Company but was employed by a contractor providing services to the Page 15 to 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI:23.09.2014 Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12 Company. The Company has been advised that the said claim is not sustainable. However, the Company has to appear before the Court and present its case. For this purpose it was proposed that Mr. Rajesh Shah be nominated to take necessary steps. The Board discussed the matter and it was:
"RESOLVED THAT Mr. Rajesh Shah, Assistant Manager - HR & Administration be and is hereby authorized to represent the Company before the Karkardooma Court at New Delhi for examination and to give evidence (in oral and writing) and to sign and submit all such documents and papers, as may necessary and incidental in the matter of Mr. Dharam Veer Singh versus Digicables Network (India) Private Limited."
CERTIFIED TO BE TRUE COPY For DIGICABLE NETWORK (INDIA) PRIVATE LIMITED Sd/ DIRECTOR".
Mr. Rajesh Shah has been authorised for, interalia, examination and to give evidence (in oral and writing). But Mr. Rajesh Shah has not been examined by management as a witness to prove the stand taken by it in the WS. In this case management initially filed affidavit of Mr. Ashish Thakur Executive Admin. HR with M/s. Digicable Network (India) Pvt. Ltd. Subsequently Page 16 to 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI:23.09.2014 Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12 management moved an application seeking permission to submit fresh affidavit of MW1 Mr. Virender Kumar on account of Mr. Ashish Thakur leaving the job of management and management examined MW1 Mr. Virender Kumar in management's evidence. What is to be noted is that MW1 Mr. Virender Kumar is working as General Management Accounts. MW1 Mr. Virender Kumar in his crossexamination deposed that, "It is correct that I am not looking after HR Department of the management...". MW1 Mr. Virender Kr. is neither signatory to WS of the management nor to the Agreement Ex. MW1/3 allegedly entered into management herein and M/s. Virtuous Security & Facility Management Pvt. Ltd. Admittedly MW1 Mr. Virender Kumar is not looking after the HR department of management. MW1 Mr. Virender Kumar has also not volunteered that at the relevant time, MW1 Mr. Virender Kumar was looking after the affairs of HR department of the management. Management has also not examined any witness from M/s. Virtuous Security & Facility Management Pvt. Ltd. to prove its stand as pleaded in WS qua M/s. Virtuous Security & Facility Management Pvt. Ltd. To my mind, merely filing of WS or taking a stand in WS does not serve any purpose unless and until the stand stand/defence as pleaded in WS is proved on judicial file by leading relevant evidence by examining Page 17 to 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI:23.09.2014 Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12 relevant and proper witness(es). In this way, it can be said that management has failed to prove on Judicial file the stand taken by it in the WS.
FURTHER, MW1 Mr. Virender Kr. In his crossexamination deposed as under : "..... The fact mentioned in para. 15 of my affidavit came into my knowledge on the raising of bill by the contractor. I do not remember the month of the said bill, however, it was in the year 2012. The contractor did not give in writing to the management regarding the absentism of workman from services. The contractor wrote the letter to the workman regarding rejoining of his services. It is wrong to suggest that workman joined our services on 01.02.2011 and was terminated from services on 02.05.2012. (vol. workman started attending premises of management from 15.03.2011 and stopped attending the premises of management in March, 2012).
At this stage, the attention of the witness is drawn towards the document Ex. MW1/13 and was specifically pointed out that as per this letter, workman had joined the contractor on 10.05.2011. Witness replied that till 10.05.2011, the workman might have been on probation and his services would have been confirmed after 10.05.2011. Q. It is put to you that letter Ex. MW1/13 is not the confirmation letter. What have you to say?
Question disallowed in as much as answer can be obtained by going through the letter Ex. MW1/13. I have no knowledge whether M/s Virtuous Security and Facility Page 18 to 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI:23.09.2014 Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12 Management Pvt. Ltd. had given any appointment letter to the workman or not. ......".
Ex. MW1/13, a letter written by M/s. Virtuous Security & Facility Management Pvt. Ltd. to M/s. DIGICABLE NETWORK INDIA PVT. LTD., reads as under : "To, DIGI CABLE NETWORK INDIA PVT. LTD 21A, MANSAROVER GARDEN, NEW DELHI110015 Kind Attention: Mr. Manoj Singh Dear Sir, This is in reference to our discussion in regards to Dharamveer's PF withdrawal.
This is to inform you that Mr. Dharamveer has joined our organization from 10th May 2011 to till date. Dharamveer and the organization's contribution has been regular paid to PF department.
Further he has never approached for withdrawal of his PF nor he come to office regarding said matter. Dharamveer's PF no is DS/NHP/0934668/000/0000282 and also attached PF statement which is contributed to the PF department every month from organization. This is for your kind information please.
Regards,
Sd/
Authorized Signatory
Page 19 to 29 (ANAND SWAROOP AGGARWAL)
PO-LC- XI: KKD: DELHI:23.09.2014
Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12
For VIRTUOUS Security & Facility Management Pvt. Ltd." It is pertinent to note that document Ex. MW1/13 is not consistent with the stand of management as pleaded by it in WS to the effect that workman was dispatched to it w.e.f. 15.03.2011 by M/s. Virtuous Security & Facility Management Pvt. Ltd. pursuant to Argument for providing Housekeeping and Hospitality Services with the said company in as much as per Ex. MW1/13 Mr. Dharamveer joined M/s. Virtuous Security & Facility Management from 10.05.2011 to till date (i.e. 16.07.2013, the date of Ex. MW1/13). If workman joined M/s. Virtuous Security & Facility Management Pvt. Ltd. on 10.05.2011, workman could not have been provided to management w.e.f. 15.03.2011, as pleaded by management, by M/s. Virtuous Security & Facility Management Pvt. Ltd.
Management has not led any evidence by examining relevant witness(es) from M/s. Virtuous Security and Facility Management Pvt. Ltd. to prove that workman joined M/s. Virtuous Security and Facility Management Pvt. Ltd. on a date other/different from 10th May 2011 as is mentioned in the document Ex. MW1/13. No appointment letter of workman issued by M/s. Virtuous Security and Facility Management Pvt. Ltd. has been produced/proved on judicial file.
It is also to be noted that management has produced/proved no Page 20 to 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI:23.09.2014 Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12 document to prove that workman was posted/transferred by M/s. Virtuous Security and Facility Management Pvt. Ltd. in March 2012. No such transfer order dated any day in March 2012 has been produced/proved on Judicial file by management. Transfer Order Ex. WW1/M1X is dated 29.05.2012. Further management has not pleaded that when in the month of March 2012 M/s. Virtuous Security and Facility Management Pvt. Ltd. posted/transferred Mr. Dharamveer to one of their other sites (as pleaded in WS), by which person workman was replaced by M/s. Virtuous Security and Facility Management Pvt. Ltd. MW1 Mr. Virender Kumar, also , cannot be said to be having first hand information of contents of para.15 of his evidence affidavit in as much as, as deposed by him in his cross examination, the fact mentioned in para.15 of his affidavit came to his knowledge on the raising of bill by the contractor. MW1 Mr. Virender Kumar even did not remember the date of said bill. However MW1 Mr. Virender Kumar deposed that it was in the year 2012. MW1 Mr. Virender Kumar has not pointed out to the said bill in his cross examination. None of the Invoices produced/proved by management as Ex. MW1/7 (Marked as Mark B) contain a mention about workman being transferred by M/s. Virtuous Security and Facility Management Pvt. Ltd. or workman stopping attending the office Page 21 to 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI:23.09.2014 Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12 premises of management from March 2012 (contents of para.15 of evidence affidavit of MW1 Mr. Virender Kumar).
In view of above detailed discussion (when the management has failed to prove on the judicial file the stand taken by it in WS on account of failure to examine proper witness(es) and the stand of management that workman Mr. Dharamveer was dispatched to it by M/s. Virtuous Security and Facility Management Pvt. Ltd. w.e.f. 15.03.2011 has been found to be not worth credence from the judicial mind, particularly in view of document Ex. MW1/13 relied upon by the management itself), by applying the principle of preponderance of probabilities, it can be safely concluded that quite possibly the case as pleaded by workman in the statementofclaim/evidence affidavit Ex. WW1/A as regards his employment by management is correct. Thus workman can be said to have joined the management on 01.02.2011 as sweeper.
ISSUE No.2 IS ACCORDINGLY DECIDED AGANIST THE MANAGEMENT.
Admittedly management received demand notice Ex. WW1/1 but it did not reply the same in writing. Management, as the facts suggest, did not submit reply in writing before Conciliation Officer. In any case the said reply, if any, has not been even produced herein.
Page 22 to 29 (ANAND SWAROOP AGGARWAL)
PO-LC- XI: KKD: DELHI:23.09.2014
Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12
In view of averments/depositions made by workman regarding management not providing legal facilities to workman, obviously workman cannot be asked to prove his employment with management through direct evidence such as appointment letter etc. AT THE SAME TIME, it deserves to be noted that, quite possibly, even the workman has not disclosed/deposed the complete truth. Workman in his crossexamination deposed as under : "......It is correct to suggest that before the Labour office, officials from Virtuous Security and Facility Management Pvt. Ltd. had also appeared besides the officials of Digi Cable Network Pvt. Ltd. (management). However, they had refused to settle the matter. Again said, none from the Virtuous Security and Facility Management Pvt. Ltd. appeared before the Labour Office and I have concern only with the management herein....."
Workman initially admitted appearance of officials from Virtuous Security and Facility Management Pvt. Ltd. before Labour Office but subsequently denied their appearance. Workman is relying upon salary sheets Mark A. In his crossexamination workman deposed as follows: "I am 8th class pass. I have no knowledge of English language. I sign in Hindi. I do not know the contents of my affidavit. At the time of my job, colour of the uniform was red i.e. pant and shirt both. It is correct that at the Page 23 to 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI:23.09.2014 Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12 time of receiving salary, I used to sign document Mark A (colly). Management used to take my signatures on blank papers. I obtained the document Mark A as original of the same was given to me by Mr. Ashish (HR Admn.) to get the same photocopied. Initially, I received the salary then I sign the document Mark A and subsequently it was given to me to get the same photocopied. Document Mark A does not bear my signatures at point X on second page, fourth page and sixth page. It is wrong to suggest that document Mark A is a forged and fabricated document. I have not received the salary from 01.01.2012 to 02.05.2012. It is correct that documents Mark A pertain to the months January, February and March 2012. It is incorrect to suggest that I received the salary for January, February and March 2012....." Underlined portion of above depositions are not consistent with each other in as much as initially workman deposed that workman signed on documents Mark A but then denied his signatures at relevant places on documents Mark A. Workman in his cross examination deposed that "....I have no knowledge of English Language. I sign in Hindi..". He at the same time deposed that, "... It is correct that at the time of receiving salary, I used to sign document Mark A (Colly.).....". Noteably documents Mark A have been signed in English. As it so appears, workman to maintain consistency with his depositions that workman has no knowledge about English Page 24 to 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI:23.09.2014 Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12 language and sign in Hindi denied his signatures in English on documents Mark A. But by this denial workman deposed inconsistently with his earlier depositions regarding his signing the document Mark A at the time of receiving salary. Admittedly documents Mark A pertains to months January, February and March 2012. Documents Mark A also falsify the stand of workman that workman was not paid salary from 01.01.2012 till 02.05.2012.
Workman in the statementofclaim pleaded that his services were terminated on 02.05.2012. Workman deposed similarly in his evidence affidavit Ex. WW1/A. But in his crossexamination workman deposed as under : "......Q. It is put to you that you did not attend Digi Cable Network (India) Pvt. Ltd. since March 2012. What have you to say?
Ans. On 12.03.2012, Mr. Ashish Thakur (HR Admn.) had asked me not to come on duty with the immediate effect.
I did not work with the management afterwards.
Attention of the witness is drawn to Para no. 1 and 5 of the statement of claim wherein it is alleged that service of the workman were terminated on 02.05.2012. Witness clarified that he lastly worked with the management till 12.03.2012. It is incorrect to suggest that I was transferred by Virtuous Security and Facility Management Pvt. Ltd. in the month of March, 2012. (Vol.
Page 25 to 29 (ANAND SWAROOP AGGARWAL)
PO-LC- XI: KKD: DELHI:23.09.2014
Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12
Mr. Ashish Thakur had asked me not to come for duty as already deposed by me)........".
As per above depositions services of workman were terminated on 12.03.2012 which is not consistent with the stand of workman that his services were terminated on 02.05.2012. Above noted aspects of case/stand of workman do not go to the root of the matter. As the facts suggest, workman worked with management from March 2011 till March 2012. Thus, apparently workman completed not less than one year of continuous service with the management so as to comply with one of the requirements of section 25F of the Industrial Disputes Act, 1947. Workman has pleaded/deposed that management illegally terminated his services. Court has already discarded the version of management regarding workman being employed by management as contract labour through Contractor M/s. Virtuous Security and Facility Management Pvt. Ltd. or workman having been transferred/ posted by M/s. Virtuous Security and Facility Management Pvt. Ltd. in March 2012. This all suggest that in all probability management terminated the services of workman in terms of his depositions made by him in his crossexamination. Keeping in view the stand taken by management in the WS, even the question of management complying with the provisions of section 25F of the Industrial Disputes Act, Page 26 to 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI:23.09.2014 Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12 1947 does not arise. Accordingly it is held that management terminated the services of workman in violation of provisions of section 25F of the Industrial Disputes Act, 1947.
HERE workman in his crossexamination deposed that, ".... I do not know the contents of my affidavit...". But, in my considered opinion, case of workman cannot be rejected only in view of above deposition of workman. In any case, this Court is bound to decide the matter on the basis of entire material available on judicial file. Despite abovereferred depositions of workman, ld. counsel for management continued with the further crossexamination of workman and, thus, other facts of the case were allowed to come on judicial record. Those facts cannot be discarded altogether merely on the basis of above referred deposition of workman.
NOW 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 entitled to reinstatement with full back wages.
Keeping in view the short length of service of workman with management, workman is held to be not entitled to reinstatement in service with management. Also, in the totality of facts and circumstances of this case, reinstatement of workman in service with Page 27 to 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI:23.09.2014 Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12 management would not be in the interest of industrial peace. Workman has not examined any of his family members, relatives, near and dears upon whom workman is dependent, as pleaded in statementofclaim. There is nothing on Judicial file to suggest that workman made sincere serious efforts to get alternative employment. Also it is not the case here that workman is completely unemployed since date of termination of his services in as much as workman in his crossexamination deposed that, "... I am able to survive from March, 2012 till today on account of occasional working as daily wager (dihari)...". Management has lead no positive evidence of employment of workman on regular basis. Thus, workman is held to be not entitled full back wages. In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the tune of Rs.50,000/ (Rupees Fifty 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.50,000/ (Rupees Fifty Thousand Only) is not paid to workman within one month of publication of this award, 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.8,000/ (Rupees Eight Thousand Only) Page 28 to 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI:23.09.2014 Dharamveer & Anr. Vs. M/s. DIGI CABLES NETWORKS (INDIA) PVT. LTD. ID No. 470/12 is also awarded to workman as costs of litigation payable by the management.
ISSUE No.1 is decided accordingly.
ISSUE No.3 Relief : In terms of above observations.
10. Workman Sunny has not cared even to file his statementof claim. Workman Sunny is held to be not entitled to any relief.
11. Reference stands answered accordingly.
12. A copy of the award be sent to Office of the Deputy Labour Commissioner (District West) for further necessary action.
13. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 23.09.2014.
(ANAND SWAROOP AGGARWAL)
POLCXI, Karkardooma Courts,
Delhi
Page 29 to 29 (ANAND SWAROOP AGGARWAL)
PO-LC- XI: KKD: DELHI:23.09.2014