Delhi District Court
Sh Irshad Ali vs M/S Dojakh on 2 November, 2019
IN THE COURT OF SH. VINAY SINGHAL, ADDL.
DISTRICT & SESSIONS JUDGE, POLCV: RACC : DELHI
NEW ID NO : 95316
In the matter of :
Sh Irshad Ali
S/O Sh. Abdul Shakoor
through Samast Delhi Karamchari Union,
52C, Okhla Estate Phase III,
New Delhi110020.
...Claimant
Versus
M/s Dojakh,
18 Hauz Khas Village,
New Delhi110016.
....Management
Date of Institution : 08.08.2013
Date of pronouncement : 02.11.2019
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 (hereinafter refer to as the Act) r/w notification No.F
24(308)/Lab/SD/2013/14437 dated 30.07.2013 has sent the following
reference to this court for adjudication :
ID No. 95316 1/9
"Whether the services of Sh Irshad Ali S/o Abdul Shakoor 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"?
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 since 24.06.2010 on the post of Cutting Master at a monthly salary of Rs. 25,000/.
3. It is claimed that the management was not providing the facilities like appointment letter, weekly and yearly leave, overtime, bonus and other allowances and when the same were demanded, the management terminated him on 25.05.2012 without any notice and without payment of earned salary for the months of April and May, 2012.
4. A demand letter dated 19.11.2012 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 ID No. 95316 2/9 management refused to act upon.
6. The claimant thereafter approached the Labour Commissioner who summoned the management but the matter could not be settled therein 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 pertinent to mention that the claimant has impleaded one M/s Dojakh as management claiming to be its employee.
9. The summons of the claim petition were served upon the address so given by the claimant as of the said management.
10. However, the said M/s Dojakh has never put up appearance before this court but rather one M/s Dozakh Arts and Design put up appearance and filed the WS taking the preliminary objection that the address at which the summons have been served is being used by it for its business and it has got no concern with the firm M/s Dojakh who is impleaded as a party in the present petition.
11. The said M/s Dozakh Arts and Design also denied that there was any relationship of employer and employee between the parties.
ID No. 95316 3/9PARTC ISSUES
12. From the pleading of the parties the following issues were framed vide order dated 28.04.2016 :
a) Whether the correct name of the management is "M/s Dozakh Arts & Design" as stated by the management in written statement and not "M/s Dojakh" as mentioned in the reference order and statement of claim filed on behalf of workman ? OPW
b) Whether the management started its business only in the year 2013 under the name of "M/s Dozakh Arts & Design" ? OPM
c) Whether there exists any relationship of employee and employer between the workman and the management of M/s Dozakh Arts and Design ? OPW
d) Whether the services of the workman was terminated illegally and/or unjustifiably by the management? OPW
e) Relief.
PARTD CLAIMANT'S EVIDENCE
13. In support of his claim claimant examined himself as WW1 and deposed along the lines of statement of claim and also proved on ID No. 95316 4/9 record the documents in support of his case but none of the document proved by him pertain to M/s Dozakh Arts and Design which has put up appearance in the present case.
14. During the course of cross examination conducted on behalf of M/s Dozakh Arts and Design, nothing has come out to the effect that the said M/s Dojakh and M/s Dozakh Arts and Design are one and the same management.
PARTE MANAGEMENT EVIDENCE
15. The said management M/s Dozakh Arts and Design examined Sh Nitin Kartikey, its proprietor as MW1 who also deposed on the lines of the defence taken in the reply to the claim and also proved on record rent agreement, PF and ESI registration certificate, registration under the DVAT Act etc. in the name of M/s Dozakh Arts and Design.
16. Nothing adverse came out also from his cross examination which can dent his testimony to the effect that the management M/s Dojakh has got any concern with the said M/s Dozakh Arts and Design.
PARTF FINDINGS/CONCLUSION
17. After considering the claim, reply, documents and the evidence led on record, the issue wise decision of the court is as under : ID No. 95316 5/9 ISSUE No.1 : Whether the correct name of the management is "M/s Dozakh Arts & Design" as stated by the management in written statement and not "M/s Dojakh" as mentioned in the reference order and statement of claim filed on behalf of workman ? OPW
18. Onus to prove this issue was upon the management as the claimant has claimed that M/s Dojakh who has been impleaded as management and M/s Dozakh Arts and Design who has filed the WS are one and the same concern.
19. In this concern, the claimant has placed reliance upon a document Mark A which is an invoice issued by M/s Dozakh showing its TIN number as of 07120332146.
20. Whereas as per the registration certificate under DVAT produced on record by M/s Dozakh Arts and Design as Mark C, its TIN number is 07710452441.
21. This document itself makes it clear that M/s Dojakh and M/s Dozakh Arts and Design are not one and the same concern but are two different entities.
22. No other evidence has also been led by the claimant to prove that the said two firms are infact being owned by the very same person.
23. Accordingly, issue no.1 is decided against the claimant.
ID No. 95316 6/9ISSUE No.2 : Whether the management started its business only in the year 2013 under the name of "M/s Dozakh Arts & Design" ? OPM
24. In order to prove this issue M/s Dozakh Arts and Design has placed reliance upon the rent agreement executed in the name of M/s Dozakh Arts and Design as Mark A and Mark B, ESI and PF registration certificate issued in its name as Ex.MW1/3 and Ex.MW1/4, registration certificate under DVAT as Mark C which very well establish that M/s Dozakh Arts and Design started its business only in the year 2013.
25. Issue no.2 is accordingly, decided in favour of M/s Dozakh Arts and Design.
ISSUE No.3 : Whether there exists any relationship of employee and employer between the workman and the management of M/s Dozakh Arts and Design ? OPW
26. The claimant has failed to prove that it was ever an employee of M/s Dozakh Arts and Design which is a distinct firm than that of the management M/s Dojakh against whom the present petition has been filed and hence, this issue is decided against the claimant.
ID No. 95316 7/9ISSUE No.4 : Whether the services of the workman was terminated illegally and/or unjustifiably by the management? OPW
27. As far as issue no.4 is concerned, as already discussed in earlier paras, M/s Dojakh i.e. the management impleaded in the present case and claimed to be an employer of the claimant has never put up appearance despite being served with the summons of the petition till date and accordingly, it has to be proceeded ex parte and ordered as such.
28. On account of failure on the part of management M/s Dojakh to appear and contest the case or to cross examine the claimant deposing as WW1 reiterating its claim against the claimant as per the claim made and discussed in Part A above, the testimony of WW1 qua the management M/s Dojakh remains uncontroverted and unrebutted and accordingly, accepted on its face value and in these circumstances, the court hereby hold that services of the claimant were terminated by management M/s Dojakh illegally and unjustifiably without following the due provisions of law as laid down under the Industrial Disputes Act.
29. Issue no.4 is accordingly, decided in favour of the claimant.
ID No. 95316 8/9ISSUE No.5 : Relief
30. In view of the outcome of issue no.4, the claimant is held entitled to the relief of reinstatement with full backwages at the rate of minimum wages as applicable in the case of a skilled worker from time to time if the actual wages are lower than that and in case the actual wages are higher than that, at the rate of actual wages, along with continuity of services and all other consequential benefits besides a compensation of Rs.5 lacs towards harassment, illegal termination and legal cost.
31. In case the management fails to give effect to the award within 30 days from the date of publication of the same, claimant is also entitled to simple interest @9% p.a. on the amount payable to him till the date the same is actually paid.
32. Reference answered accordingly.
33. Let copy of the award be sent to the appropriate Govt for its publication as per rules.
File be consigned to record room.
Announced in the Open Court ( VINAY SINGHAL) On 02 November, 2019 nd ADDL. DISTRICT & SESSIONS JUDGE, PRESIDING OFFICER LABOUR COURTV, RACC/DELHI VINAY SINGHAL ID No. 95316 Digitally signed 9/9 by VINAY SINGHAL Date: 2019.11.04 11:20:00 +0530