Delhi District Court
Sh Anil Kumar Sharma vs M/S Special Executive Protection ... on 25 April, 2022
IN THE COURT OF SH. SANATAN PRASAD, POLCV:
RADC : DELHI
NEW ID NO : 223516
In the matter of :
Sh Anil Kumar Sharma,
S/O Sh. Janardhan Sharma,
R/O G55A, Gali No.16,
Jagat Puri, Delhi.
C/o Engineering and General Karamchari Lal Jhanda Union,
2094/4, Masjid Wali Gali No.15,
Prem Nagar (Near Baljeet Nagar),
New Delhi110008.
...Claimant
Versus
M/s Special Executive Protection (India) Pvt. Ltd.,
WZ152/B, 2nd Floor, Bal Udyan Road,
Uttam Nagar, New Delhi110059.
....Management
Date of Institution : 13.09.2013
Date of pronouncement of Judgment : 25.04.2022
AWARD
The Dy. Labour Commissioner, Govt of NCT, Delhi while
exercising his power U/s 10 (1) (c) and 12 (5) of the Industrial Dispute
Act, 1947 (hereinafter refer to as the Act) R/W notification No.F
3(150)13/Ref./WD/LAB/999 dated 08.08.2013 has sent the following
reference to this court for adjudication :
ID No. 223516 1/20
"Whether the services of workman Sh Anil Kumar Sharma S/o
Sh. Janardhan Sharma has 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"?
PARTA
REFERENCE/CLAIM
1. After being called upon, the claimant filed statement of claim.
2. As per the claimant, he was employed with the management for
the last six years (petition filed in 2014), on the post of Security
Guard at a monthly salary of Rs. 5200/.
3. It is claimed that the management was not providing the
facilities like appointment letter, weekly and yearly leave,
overtime, bonus and other allowances etc., and, when the same
were demanded, the management terminated him on 29.08.2012
without any notice on any enquiry being held whatsoever.
4. A demand letter dated 03.12.2012, claiming reinstatement and
the allowances was sent by registered post but the same was
neither replied nor acted upon.
5. The claimant filed a written complaint with the concerned
Labour Commissioner, who appointed a Labour Inspector to
visit the management office for reinstatement of the claimant
but the management despite giving assurance to reinstate the
ID No. 223516 2/20
claimant, did not reinstate him.
6. The claimant, thereafter, approached the Labour Commissioner,
who summoned the management, and the management took a
stand regarding the claimant not coming forward to join the
duties despite letters sent to him, whereas, it was the
management, which refused to reinstate him despite his visit in
pursuance to the said letters and as such, the matter could not be
settled and, accordingly, the above reference was made to this
court.
7. The claimant also, claimed that since the date of his termination,
he is unemployed.
PARTB
MANAGEMENT'S STAND/REPLY
8. It is claimed that the claimant was not diligent w.r.t.
performance of his duties and while being posted at Kanti Nagar
Hospital, a theft took place, therein, on 01.07.2012, during his
duty hours, when he was having his dinner, which he was not
supposed to do during the course of duty and accordingly, he
was shifted from there to Bhagwan Mahavir Hospital,
Pitampura.
9. It is, also, claimed that one of the associate of the claimant, who
was also posted at Kanti Nagar Hospital admitted his mistake in
writing w.r.t. dereliction in performance of duty on 11.07.2012
ID No. 223516 3/20
w.r.t. the said act of theft.
10. It is claimed that on 07.08.2012, Sh. Ranbir Singh, Security
Officer of Bhagwan Mahavir Hospital, prepared an absent report
qua the claimant w.r.t. his duty on 29.08.2012 and 30.08.2012.
11. It is also, claimed that in any other case, the accounts of the
claimant were settled on 27.08.2012 for a sum of Rs.2602/.
12. It is claimed that on 28.08.2012, he was again directed to report
for duty at Bhagwan Mahavir Hospital and despite settlement of
the accounts of the claimant, he agreed to perform the said duty,
but instead of joining the duty, he absented himself and,
accordingly, on 04.09.2012, he was served with a letter
directing him to report for duty at Bhagwan Mahavir Hospital,
but he failed to do so.
13. It is claimed that vide letter dated 25.09.2012, addressed to
Labour Inspector, the contents of the complaint made by the
claimant were denied.
14. It is also, claimed that on 28.09.2012, the management again
served him with a direction in writing to join the duties calling
upon him, to submit his reply by 05.10.2012, and again, a letter
dated 01.10.2012, was addressed to Labour Inspector intimating
him that the claimant has failed to join the duty.
15. It is submitted that, again, a letter dated 09.10.2012 was served
upon the claimant calling upon him to join the duty.
16. It is also submitted that via letter, dated 21.11.2012, addressed
ID No. 223516 4/20
to the Labour Commissioner, he was informed that the claimant
has failed to join the duty.
17. It is also claimed that the claimant is running his business of
Tour and Travel besides running a PCO booth and a
confectionery shop and, accordingly, is not unemployed.
PARTC
ISSUES
18. From the pleading of the parties the following issues were
framed vide order dated 16.02.2016 :
a) Whether on 01.07.2012 a theft took place at Kanti Nagar
Hospital during night hours where the workman was on
duty along with other security guards and he was found
not performing his duty as he was taking dinner during the
time of his duty at the place of duty, if so, its effect ? OPM
b) Whether the workman is guilty of dereliction of duty, if so,
its effect ? OPM
c) Whether the workman was found absent from duty on
07.08.2012 by the Security Officer of Bhagwan Mahavir
Hospital, if so, its effect ? OPM
d) Whether on 29.08.2012 workman was assigned morning
duty but he absented from duty and again on 30.08.2012
he did not perform his duty and remained absent from
ID No. 223516 5/20
duty, if so, its effect ? OPM
e) Whether the workman's account has been settled in full
and final on 27.08.2012 and a payment of Rs.2602/ was
made to the workman, if so, its effect ? OPM
f) Whether on 28.08.2012 the workman was directed to report
for duty at Bhagwan Mahavir Hospital with a letter to the
Security Supervisor of the hospital but the workman did
not report for duty despite direction of the management to
report for duty, if so, its effect ? OPM
g) Whether the services of the workman were terminated by
the management illegally and unjustifiably ? OPW
h) Whether the workman is entitled to the relief claimed in
the statement of claim ? OPW
i) Relief.
PARTD
CLAIMANT'S EVIDENCE
19. In support of his claim, claimant examined himself, as WW1
and deposed along the lines of statement of claim and also
proved on record the documents in support of his case i.e. Mark
A to E..
20. During the course of cross examination, though, he admitted
that during his duty hours on 01.07.2012, a theft took place at
ID No. 223516 6/20
Kanti Nagar Dispensary, but at the same time deposed that it
was he, who apprehended the thief and made a police call to
PCR in this respect and also informed the Field Officer Sh. Raj
Kumar Gautam about the same.
21. He denied the suggestion that at the time, when the theft was
being committed, he was taking dinner.
22. He also deposed that after the said incident of theft at Kanti
Nagar Hospital, he was transferred to Lal Bahadur Shastri
Hospital by deposing that he was never intimated about his
transfer, as such despite visiting three times the Head Office of
the management seeking duty.
23. He denied the knowledge that his colleague Sh. Bhawan Beer
on 11.07.2012 ever admitted that any such theft on 01.07.2012
took place on account of lapse of the claimant in performing his
duty but at the same time deposed that the theft took place at the
place, where the said Sh. Bhawan Beer was performing the duty
and not his place of posting.
24. He also denied the suggestion that he left the job on account of
said incident of theft.
25. He also denied the suggestion that he was ever sent any letter to
join the duties except admission of one letter regarding
transferring his place of posting to Bhagwan Mahavir Hospital,
but submitted that the management prevented him from joining
the said duty also.
ID No. 223516 7/20
26. He denied the suggestion that he is running absent
unauthorizedly w.e.f. 07.08.2012.
27. With respect to the payment of Rs.2602/ made on 27.08.2012, a
suggestion was put to him that said payment was towards
payment of salary, which suggestion was accepted by him but at
the same time he again reiterated that on 28.08.2012, the
Supervisor of the management prevented him from joining the
duties at Bhagwan Mahavir Hospital.
28. He, however, denied any knowledge w.r.t. preparation of any
report/letter, dated 03.09.2012, by his Supervisor at Bhagwan
Mahavir Hospital regarding his so called absence from duty at
Bhagwan Mahavir Hospital.
29. He also denied the receipt of any letter from the side of the
management calling upon him to join the duties at any point of
time.
30. He also denied the suggestion that he is running any Tour and
Travel business or running a PCO booth or being employed
somewhere else.
PARTE
MANAGEMENT EVIDENCE
31. The management examined Sh G.S. Pokhriya, its official, as
MW1, who also deposed on the lines of the defence taken in the
reply to the claim and also proved on record the following
ID No. 223516 8/20
documents :
(a) Mark A Notice issued by the management to the
workman.
(b) Ex.MW1/1 Letter written to Director by the claimant.
(c) Mark B Complaint dated 03.08.2012.
(d) Ex.MW1/2 Voucher dated 27.08.2012.
(e) Ex.MW1/3 Letter dated 28.08.2012.
(f) Mark C Letter dated 28.08.2012 written by claimant
(g) Mark D Letter dated 03.09.2012.
(h) Mark E & F Letter dated 04.09.2012 & 28.09.2012
(j) Mark G Letter dated 01.10.2012.
(k) Mark H Letter dated 03.10.2012.
(l) Mark I Letter dated 09.10.2012.
(m) Mark J Letter dated 21.11.2012.
(n) Mark K (colly.)Photographs and visiting cards.
An additional affidavit of the MW was also tendered in
evidence.
32. During the course of cross examination, he deposed that w.r.t.
so called alleged dereliction in the performance of duty on the
part of claimant, at no point of time any charge sheet was issued
but deposed that only verbal warnings were issued to him from
time to time.
33. With respect to the service of documents Mark A, Ex.MW1/C
ID No. 223516 9/20
and Mark B, he deposed that the same were letters served from
the side of management upon the claimant, which are in the
form of complaint made by his supervising officer regarding the
alleged misconduct of the claimant, addressed to the
management and copies of the same were served upon the
claimant by post but admittedly no postal proof qua the same
have been placed on record regarding the dispatch of the same.
34. He also deposed that the claimant was called upon to join back
the duty via call letters Mark 'E', Mark 'F' and Mark 'I' but he
failed to join in response to the same.
35. He also admitted that an amount of Rs.2602/ paid to the
claimant in the proceedings before Labour Inspector was
towards payment of salary of the claimant.
36. He also deposed that w.r.t. allegation of theft, the management
lodged an FIR naming the Guards on duty therein.
PARTF
FINDINGS/CONCLUSION
37. It is to be noted that the issues in the case were framed vide
order dated 16.02.2016, quite a long ago, by my ld. Predecessor/
(s), and after considering their deft and import, further their
required adjudication, as framed, have not been taken serial
wise for my adjudication as doing so at this stage would have
had entailed more complications than solving the nominal/
ID No. 223516 10/20
formal problems and accordingly, the issues have been taken up
for my adjudication side by side, in keeping with the appropriate
and necessary pitch, required in this regard and after considering
the claim, reply, documents and the evidence led on record, the
issue wise decision of the court is as under :
ISSUE No.1 : Whether on 01.07.2012 a theft took place at Kanti
Nagar Hospital during night hours where the workman was on duty
along with other security guards and he was found not performing
his duty as he was taking dinner during the time of his duty at the
place of duty, if so, its effect ? OPM
38. The onus to prove this issue was upon the management.
39. As far as the factum of commission of theft at Kanti Nagar
Hospital, where the claimant was posted along with other
Guards at the time of theft is concerned, the same is not in
dispute as admitted by both the parties and both the claimant
and the management claimed the date of theft as of 01.07.2012.
40. However, as per the management, the said theft took place on
account of negligence on the part of the claimant in taking
dinner instead of performing duties during his posting hours.
41. As discussed in Part B above, the management has stated that
w.r.t. the said theft the coguard of the claimant admitted his
mistake in writing w.r.t. dereliction in performance of duty at
the time of commission of theft.
ID No. 223516 11/20
42. As discussed above in Part D also, the said coguard's name is
Sh. Bhawan Beer, who admitted the dereliction in the
performance of duty via letter dated 11.07.2012.
43. As also discussed in Part E above, the MW1 deposed that w.r.t.
the said theft it lodged an FIR naming the Guards on duty
therein.
44. However, it is pertinent to mention that, though, the said letter
dated 11.07.2012, written by so called coguard Sh. Bhawan
Beer has been placed on record as Ex.MW1/1, but a perusal of
the same transpires that the same mentions the date of incident
of theft as of 11.07.2012, whereas, in the WS as well as in the
affidavit in lieu of examination in chief and the cross
examination of the claimant deposing as WW1 the date of theft
has been mentioned as of 01.07.2012 by the management and,
accordingly, the said Ex.MW1/1, which mentions the date of
theft as of 11.07.2012, is contrary to the stand taken by the
management and in the absence of any explanation regarding
the said date of theft mentioned in Ex.MW1/1 as of 11.07.2012
it is clear that the said Ex.MW1/1 is of no consequence w.r.t. the
date of theft as mentioned in the WS and put to the claimant
during the course of his cross examination and hence, cannot be
relied upon.
45. Furthermore, the management has also failed to examine the
said Sh. Bhawan Beer - Executor of the said letter Ex.MW1/1
ID No. 223516 12/20
w.r.t. the contents of the said document and as the executor has
not been examined, the said letter cannot be relied upon for any
purpose, whatsoever besides being the fact that the said letter
does not in any manner implicit the claimant regarding alleged
dereliction of duty on his part on 01.07.2012.
46. Similarly, even the FIR so lodged by the management naming
the Guards on duty therein including the claimant has not been
placed on record.
47. Accordingly, issue no.1 is decided against the management.
ISSUE No.2 : Whether the workman is guilty of dereliction of duty,
if so, its effect ? OPM
48. In view of the outcome of issue no.1, issue no.2 is also decided
against the management.
ISSUE No.3 : Whether the workman was found absent from duty on
07.08.2012 by the Security Officer of Bhagwan Mahavir Hospital, if
so, its effect ? OPM
ISSUE No.4 : Whether on 29.08.2012 workman was assigned
morning duty but he absented from duty and again on 30.08.2012 he
did not perform his duty and remained absent from duty, if so, its
effect ? OPM
ISSUE No.6 : Whether on 28.08.2012 the workman was directed to
report for duty at Bhagwan Mahavir Hospital with a letter to the
Security Supervisor of the hospital but the workman did not report
ID No. 223516 13/20
for duty despite direction of the management to report for duty, if so,
its effect ? OPM
49. The issue no.3 has also been framed on account of the defence
taken by the management that Sh. Ranbir Singh, its Security
Officer prepared an absent report qua the claimant remaining
absent from duty on 29.08.2012 and 30.08.2012 via its report
dated 07.08.2012.
50. The said report/complaint of Sh. Ranbir Singh as per the WS
and the affidavit in lieu of examination in chief of MW1, was
prepared on 07.08.2012 but during the course of tendering the
affidavit the date has been mentioned as 03.08.2012 and the
same was proved on record as Mark B (Ex.WW1/M1).
51. The said document Mark B (Ex.WW1/M1) on the face of it is a
forged and fabricated document.
52. The reason being that in the WS and affidavit in lieu of
examination in chief the date of execution of the said Mark B
(Ex.WW1/M1) has been mentioned as of 07.08.2012 but
actually it bears the date of 03.08.2012.
53. The second reason is that as per the said Mark B (Ex.WW1/M1)
the incident reported is dated 28.08.2012, 29.08.2012 and
30.08.2012.
54. If, the said dates are taken into consideration there is no
explanation, as to how, the letter, is antedated as of 03.08.2012
ID No. 223516 14/20
(07.08.2012) mentioning the future date of incident i.e.
28.08.2012, 29.08.2012 and 30.08.2012.
55. Hence, it is very much clear that the management has concocted
story of the claimant found absent vide report dated 07.08.2012
of Sh. Ranbir Singh on 29.08.2012 and 30.08.2012.
56. Accordingly, in view of the above observation, issue no.3 and 4
are decided against the management and similarly, in view of
the finding on the said document Mark B (Ex.WW1/M1) having
been found to be forged and fabricated, the stand of the
management that on 28.08.2012, the claimant was directed to
report for duty at Bhagwan Mahavir Hospital, which he failed to
comply was also held to be a concocted story on the part of the
management with the help of forged document and, hence, issue
no.6 is also decided against the management.
ISSUE No.5 : Whether the workman's account has been settled in
full and final on 27.08.2012 and a payment of Rs.2602/ was made to
the workman, if so, its effect ? OPM
57. As per the management, the accounts of the claimant were
settled in full and final for an amount of Rs.2602/ on
27.08.2012. However, as already discussed in Part D, above,
during the course of his cross examination the claimant denied
that his accounts were ever settled in full and final via said
payment by deposing that the said payment was towards the
ID No. 223516 15/20
payment of his salary.
58. As also discussed in Part E, above, even the MW1 admitted that
the said payment was towards the payment of salary of the
claimant.
59. Even the said voucher dated 27.08.2012 for Rs.2602/
Ex.MW1/2 makes it clear that the said amount was paid towards
salary for the month of July, 2012.
60. Accordingly, issue no.5 is decided against the management
holding that the accounts of the claimant were never settled for
a sum of Rs.2602/ via payment made on 27.08.2012, which
payment was towards the salary for the month of July, 2012.
ISSUE No.7 : Whether the services of the workman were terminated
by the management illegally and unjustifiably ? OPW
61. In view of the discussion made while deciding issue no. 1 to 6,
it is very much clear that the management has not come to the
court with clean hands but has told a lie at each and every stage
of the trial and even has gone to the extent of placing on record
forged and fabricated document and, hence, there is nothing
more to be decided by the court but to hold that indeed the
claimant has taken a right stand of his services having been
terminated illegally and unjustifiably by the management.
ID No. 223516 16/20
62. Apart from the above observation, the stand taken by the
management that it had repeatedly called upon the claimant to
join the duties and also informed the Labour Inspector via letters
addressed to the Labour Inspector regarding the so called
alleged action on the part of the claimant in not joining the
duties, also cannot be relied upon as the management has failed
to summon the record of Labour Inspector proceedings in order
to prove on record that indeed such letters addressed to the
Labour Inspector were ever delivered upon him or any such
offer was made to the claimant during the course of the
conciliation proceedings calling upon him to join the duties and
in this respect the court's observation is strengthened by the
observation made by the Hon'ble High Court of Delhi in the
matter cited as M/s Spirited Auto Car(I) Ltd. (Espirit Toyota)
Vs. State (Govt. of NCT of Delhi) and others, in WP(C) No.
1285 of 2020 decided on 04.02.2020, whereby, vide observation
made in para no.4 and 5 the Hon'ble High Court of Delhi has
dealt with the very said submissions made on the part of the
management, and after giving considerable, thought, to the said
submissions had rejected the said submissions, which is
reproduced as under :
"4. The learned counsel for the petitioner submits that the
management had made a representation to the Conciliation
Officer by a letter dated 24th April, 2017. However, there is
ID No. 223516 17/20
no proof that the said document was either served upon or
otherwise received by the Conciliation Officer.
5. After some arguments in the forenoon the case was passed
over to facilitate the learned counsel for respondent no.1 to
bring to the court records of the proceedings before the Conciliation Officer. In the postlunch session, the records have been produced and perused by the Court. It does not contain any representation or application by the management before the Deputy Labour Commissioner/ Conciliation Officer in the conciliation proceedings. The proceedings record the signatures of all the claimants but the presence of counsel for the petitioner is not recorded on any date, although he submits that, he had appeared in the proceedings and had submitted the said letter. He does not specify the date on which he appeared before the Conciliation Officer nor is any reason offered as to why the letter was not marked as duly received, when it was allegedly tendered to the Conciliation Officer. Surely as a counsel he would be better placed to ensure that the document was brought on record when it was tendered to the office of the Deputy Labour Commissioner. If according to the petitioner, the proceedings before the Conciliation Officer were erroneously recorded, it was always open to it to have it rectified. However, no effort was made in this regard, perhaps because the petitioner did not find anything erroneous in the recording of the proceedings."
63. Accordingly, it is very much clear that the services of the ID No. 223516 18/20 claimant were terminated by the management illegally and unjustifiably without following the provisions of Industrial Disputes Act, 1947, and in order to hide the true facts the management has even dared to place reliance upon forged documents before this court besides telling a lie.
64. Issue no.7 is accordingly, decided in favour of the claimant.
ISSUE No.8 : Whether the workman is entitled to the relief claimed in the statement of claim ? OPW
65. In view of the outcome of issue no.7, the claimant is held entitled to the relief of reinstatement.
ISSUE No.9 : RELIEF
66. As far as the relief of backwages is concerned, the management has taken a stand to the effect that the claimant is not unemployed but rather is running a business of Tour and Travel besides running a PCO booth as well as being employed somewhere else.
67. In this respect, the management has also placed reliance upon certain photographs as Mark K but the said photographs were never put to the claimant during the course of his cross examination, besides being the fact that the said photographs in ID No. 223516 19/20 itself do not in any manner prove that any such business is being run by the claimant, as the said photographs only depict a bill board, a painted shutter and a visiting card, which in themselves are no proof that the claimant is associated w.r.t. the businesses stated therein.
68. Accordingly, the defence on the part of the management that the claimant is doing such businesses or employed somewhere else, stand rejected.
69. Hence, the claimant is held entitled to the relief of reinstatement with full backwages along with continuity of services and all other consequential benefits.
70. Reference answered accordingly.
71. Let copy of the award be sent to the appropriate Govt for its publication as per rules.
File be consigned to record room.
Digitally signed by SANATAN PRASAD SANATAN Date:
PRASAD 2022.04.26
12:31:35
+0530
Announced in the Open Court ( SANATAN PRASAD)
On 25.04.2022 ADDL. DISTRICT & SESSIONS JUDGE,
PRESIDING OFFICER LABOUR COURTV,
RADC/DELHI
ID No. 223516 20/20