Delhi District Court
Babu Lal Tailor 3 Yr. 1350/ 17.6.96 vs Darbara Singh on 23 October, 2007
COURT OF MS. SUJATA KOHLI
PRESIDING OFFICER LABOUR COURT II,
ROOM NO. 48, KARKARDOOMA COURTS, DELHI
I.D. No. : 135/97
B E T W E E N
The Workmen, Sh. Babu Lal and Pankaj Kumar both C/o All
India Engineering and General Mazdoor Union, E127,
Karampura, News Delhi15.
A N D
The Management, M/s World Fashion, G4, Lawrence Road, Tri
Nagar, Delhi35.
A W A R D
1.Reference was sent by Sh. Ashok Kapur, Secretary Labour, Government of NCT, Delhi on 06/03/97 vide reference No. F.24 (6006)/96Lab./586569 pertaining to an Industrial Dispute between the management of M/s World Fashion and its workmen Sh. Babu Lal & Pankaj Kumar, in the following terms of reference: "Whether the services of S/Sh. Babu Lal and Pankaj Kumar have 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. Pursuant to the reference, a joint claim was filed by both the workmen stating therein that they were appointed by the management with their posts and length of service, salary drawn and dates of termination being as under: S. No. Name Post Service Salary Date of termination
1. Babu Lal Tailor 3 Yr. 1350/ 17.6.96
2. Pankaj Kr. Airman 1 Yrs. 1300/ 8.6.96
3. It is further stated that both workmen performed their duties to the utmost satisfaction of the management giving no cause of complaint to the management. However, the working conditions in the establishment were not satisfactory and management was not providing legal benefits to the workmen which they were entitled to under different labour laws such as attendance card, appointment letter, leave book etc.
4. When workmen demanded these benefits they invited the wrath of the management and management adopted vindictive policies to harass the workmen. However, when the workmen persisted with their demands, management got annoyed and ultimately terminated the services of both workmen.
5. The termination is alleged to be in violation of provisions of section 25F and other provisions of I.D. Act, 1947. Workmen raised the matter before the Labour Department through their union. They lodged a complaint with the office of the Labour Commissioner on 17/06/96 but inspite of intervention by the Labour Department, management failed to redress the grievance of the employees.
6. On 26/06/96, workmen sent a demand notice demanding reinstatement with back wages and continuity of service. The management neither considered the demands not even replied to the said notice. The conciliation proceedings before labour department also failed on account of the attitude of the management and accordingly the matter was referred to the court for adjudication.
7. It is stated that management did not issue any notice prior to terminating the services of the workmen nor any compensation was paid in lieu of the notice period before terminating the services of the workmen. Both workmen claim to be unemployed eversince the date of their illegal termination.
8. In their written statement filed by the management, they have taken a stand that as regards workman Pankaj Kumar he was never even employed with the management at any point of time, as such, there is no question of termination of his service wrongful or otherwise.
9. As regards workman Babu Lal, management has stated that he was appointed w.e.f. 01/08/95 as a Tailor on a fixed term of appointment which stood determined on 31/07/96 and hence the question of termination of his service on 17/06/96 did not arise. It is further mentioned that claimant/workman Babu Lal had started absenting himself from duty w.e.f. 17/06/96 itself and did not even turn up till 31/07/96 when his fixed term of appointment came to an end on the expiry of fixed term of appointment.
10. As per the management, since the service of the claimant/workman stood determined on the expiry of the fixed term of appointment period on 31/07/96, the same cannot be termed as retrenchment as stipulated U/s 2 (oo) of I.D. Act, 1947.
11. On merits, it is also denied that the claimants/workmen ever raised a dispute before the labour department through union or that any labour officer/official ever visited the management on the basis of their alleged complaint. It is also denied by the management that they never gave any reply to the demand notice of the workmen dated 26/06/96. It is specifically stated that management sent a reply promptly to the demand notice sent by the workmen through union. As regards nonpayment of compensation, it is reiterated that since workman Babu Lal was employed for fixed term contract which expired on 31/07/96, there is no reason for the management either to serve him with a one month's notice or to pay him any compensation in lieu of any such notice.
12. As regards the claim of the workmen that they are both remaining unemployed eversince their termination, it is stated with regard to workman Babu Lal that since there remains an acute dearth of trained employees in the ready made garment industry, it is not credible that the claimants would remain unemployed. It is stated towards the end of the W/s that the present claim is false and is filed absolutely to harass the management.
13. Workmen filed a rejoinder denying all the contents of the written statement and reiterating those of the claim statement.
14. On the basis of the pleadings, following issues were framed by my Ld. Predecessor: (1) To what relief if any, is the workman entitled against the mgt. in terms of reference? OPW.
(2) Whether there is no relationship between workman Pankaj Kr. and Management. OPM.
15. In evidence, workman Babu Lal examined himself as WW1 on his affidavit Ex. WW1/A and also tendered the following documents in evidence: (1) Copies of gate passes, Ex. WW1/1 to Ex. WW1/7. (2) Copy of complaint lodged with the labour department on 18/06/96, Ex. WW1/8.
(3) Copy of notice issued from the labour department, Ex.
WW1/9.
(4) Copy of complaint to P.S. Keshav Puram dated 17/06/96, Ex. WW1/10.
(5) Copy of demand notice dated 26/06/96, Ex. WW1/11. (6) Copy of claim filed before labour conciliation officer, Ex. WW1/12.
16. Workman Pankaj Kumar did not step into the witness box to examine himself on oath and inspite of number of opportunities extended to him.
17. Management, on the other hand, examined one Sh. Suresh Kumar Mittal as MW1 on his affidavit Ex. MW1/A and besides he has tendered the following documents in evidence: (1) Special Power of Attorney, Ex. MW1/1.
(2) Copies of details of ESI returns from the year 1993 to 1996, Ex. MW1/2 to Ex. MW1/11.
(3) Copy of appointment contract of Babu Lal, Ex. MW1/12. (4) Copy of reply dated 05/07/96 to demand notice of Babu Lal, Ex. MW1/13.
(5) Copy of postal receipt, Ex. MW1/14.
Besides, management also confronted the workman Babu Lal with the ESI card, during his crossexamination, which was Ex. WW1/M1.
18. This matter came up for final arguments firstly on 27/02/06 before my Ld. Predecessor and it went on being adjourned mostly at joint request of the parties for as many as nine opportunities and even then management failed to avail the said opportunities and ultimately no arguments were addressed on behalf of management, however, only written submissions were filed without there being any direction or permission for the same. Even so, in the interest of justice, the same have been perused. I now proceed to decide the present claim on the basis of material on record, in the light of oral submissions made on behalf of the workman and in the light of the written submissions filed on behalf of the management. ISSUE No. 2
19. As regards Issue No. 2 as framed by my Ld. Predecessor which was with regard to only claimant/workman Pankaj Kumar. Since workman Pankaj Kumar failed to lead any evidence oral as well as documentary in support of his claim, he has failed to establish his claim that he was an employee of the management or that his service was terminated in a wrongful manner. The said issue is decided against the workman Pankaj Kumar and in favour of the management. In view of the findings on Issue No. 2, the claim of the Pankaj Kumar stands dismissed.
ISSUE No. 1
20. As regards the documents filed by the management, no doubt, Ex. MW1/1 to Ex MW1/11 do show that the name of the workman Babu Lal appearing in the list of workers only in the returns pertaining to the year 1995 onwards and not in the years prior to that. Ex. MW1/5 to Ex. MW1/11 do not show the name of the workman Babul Lal. As regards Ex. MW1/12, the language shows that workman Babu Lal was appointed on a contractual term basis in the establishment as a tailor at a salary of Rs. 1919/ per month purely on fixed term contract commencing from 01/08/95 till 31/07/96. However, the workman has denied his signature on this appointment letter, during his crossexamination.
21. As regards Ex. MW1/13, no doubt, management has sent a reply to the demand notice of the workman and as per this reply dated 05/07/96 management has taken the same stand as in their W/s stating therein that Pankaj Kumar was never in the employment of the management and that workman Babu Lal had been appointed on a temporary basis for a fixed term period starting from 01/08/95 till 31/07/96. The ESI card Ex. WW1/M1 also shows that the date of issuance of this card is 01/08/95 and not before.
22. However, the copies of gate passes filed by the workman Babu Lal from Ex. WW1/1 to Ex. WW1/7 do show that Babu Lal was being issued the gate passes in the year 1993 also, specifically, so far as Ex. WW1/7 is concerned.
23. Since the main defence of the management revolves around the contractual appointment letter Ex. MW1/12 and since the workman denied his signature on the said letter, in his cross examination, it was the burden of the management to then establish the fact by way of examining a handwriting expert to the effect that the said signatures were actually those of workman Babu Lal and were not forged and fabricated signatures. The signatures may be visible to the naked eye to be similar but the court cannot not substitute its opinion in place of an opinion of a handwriting expert and as such the appointment letter Ex. MW1/12, the basic document on which the management relied has remained unproved.
24. As regards the documents of the workman i.e gate passes even if they are presumed to be genuine, even a visitor to a company could be in possession of the gate passes on each of his visit, and gate passes in his name in no way establish that any given person whose name appears on the gate passes is an employee of the said company. It may even have been that workman Babu Lal may have been visiting the company even prior to his joining the company. In any case, the documentary evidence led by both parties is inconclusive. There are only two documents one of each party which actually pertain to the employment period, rest all being documents after the cause of action already arose.
25. Coming to the oral evidence, workman Babu Lal has examined himself and nothing favourable to the management has been elicited during the crossexamination of the workman Babu Lal. During crossexamination of the workman, workman categorically denied that appointment letter Ex. MW1/12 bears his signatures or that he was intentionally not recognizing his signatures. He has through and through denied vehemently that he was appointed on temporary basis on a fixed term appointment. All that the workman has been crossexamined is mainly on the point of his claim that he was not being given the benefits under the labour laws. The workman has hardly been crossexamined on the point of nature of his appointment except confronting him with the document Ex. MW1/12 and which the workman has vehemently denied ever having signed.
26. Remaining crossexamination is on the point of his being unemployed to which the workman has replied that his family consists of nine members and his monthly expenditure is Rs. 2,000/ which he, however, has explained further that the expenditure is borne by his wife who is working in a provision shop.
27. Management, on the other hand, has not even examined its proprietor Sh. Parmod Kumar Gupta whose signatures are appearing on Ex. MW1/12 and in his place one Sh. Suresh Kumar Mittal has been examined as MW1 on his affidavit Ex. MW1/A. On the affidavit of MW1, it is nowhere stated either at the beginning or at the end of the affidavit as to in what capacity this person has deposed on behalf of the management whether he was a manager or in any other official capacity to depose. There is only a special power of attorney Ex. MW1/1 executed by Sh. Parmod Kumar Gupta, proprietor in favour of the witness Sh. Suresh Mittal simply authorizing him to execute acts including giving evidence amongst other things. However, the said proprietor has nowhere explained as to what was the reason preventing him from deposing in person particularly when it was only the proprietor who could be having the special personal knowledge about the matter. Not even one word has been stated, eg:, the proprietor was abroad or he was sick and unable to appear in court or any other reason for that matter. Since there is no purpose mentioned in this attorney and not even the official capacity of the attorney is stated, the MW1 on this ground alone not even competent to depose and this is perhaps the reason that in his affidavit he has not been able to state exactly as to on what capacity he is appearing for the management to depose whether he is a partner or the employee or any other capacity. In fact, the witness has not mentioned anything about his being the attorney of Parmod Kumar Gupta nor he has mentioned anything about the execution of power of attorney in the whole of his affidavit even.
28. Coming to his crossexamination, he has replied that he worked with the management in the year 1997 and continued to work upto 2001. Even going by this aspect, the witness could not be aware of the facts of the case as he joined the management after the alleged termination of service of the workman. Workman Babu Lal was terminated in the year 1996 whereas the witness has joined in the year 1997, as such, he was not even in a position to state the correct and true facts to his own knowledge.
29. During further cross examination the witness has even admitted that Mr. Parmod Gupta, Proprietor of the management is maintaining good health, then there was no reason given for non appearance and nondeposition by Mr. Parmod Gupta. Mr. Parmod Gupta, proprietor was the best witness to depose in this case and in fact the most material document Ex. MW1/12 is shown to have been executed by the said Mr. Parmod Gupta and there is no explanation for nonexamination of the best witness and which leads to an adverse inference to the effect that had the witness been examined, he would not have withstood the test of crossexamination, as such, management avoided to examine the most competent and best witness. Even inspite of being questioned about the health of the proprietor, MW1 has not come up with any good explanation about the nonappearance of the proprietor. In further cross examination, MW1 even admits that in his affidavit he has not disclosed his employment with the management and as such once again neither his capacity to depose nor his knowledge about the facts of the case can be taken to be of any evidentiary value.
30. MW1 could not tell how many employees were employed with the management. The originals of Ex. MW1/2 to Ex. MW1/4 and Ex. MW1/6 were also not produced inspite of questions having been put regarding the same. The witness did not even know whether management was still continuing the same business of export garment or not as on date nor the number of employees working with the management as on that date.
31. In later part of the crossexamination, MW1 has admitted that management used to recruit tailors but the said recruitment was never on the same date. He has then specifically admitted it to be correct that Ex. MW1/2 contains the same date of employment of all the employees. This again reduces the genuineness of the documents to nil. The witness did not know when the management came in existence. He has admitted that he had not appointed the workman Babu Lal. He could not even reply as to whether all the employees shown to have been recruited on 01/08/95 have all been terminated on 31/07/96. The witness has denied that workman was working with the management for the last three years prior to his termination and also that management had terminated his service on 17/06/96. Witness could not be in the knowledge of the facts as already stated above that he had not even joined the management until 1997 and which fact of joining is also quite doubtful as he has not stated anything about his employment with the management in his affidavit admittedly.
32. The reply of the witness regarding gate passes that as per instructions received from management, no gate passes used to be issued for the period from 1994 to 1996 is quite illogical as no explanation has followed this reply as to what was the special reason for not issuing gate passes during the said period. It could either be that no gate passes were issued at all or that gate passes were always issued. Even otherwise, the period prior to 1997 is not related to the MW1 so that his reply may be of any evidentiary value.
33. Since it has not been denied by the management that workman was an employee of the management and it was only the defence of the management that workman was employed on a temporary basis i.e fixed term contract, the burden to prove the said fixed term contract lay solely upon the management in view of the denial of the signatures of the workman on Ex. MW1/12. The management failed to take any step to prove Ex. MW1/12 in accordance with law by examining the handwriting expert. The signatures of the workman which have been denied by him remained unestablished, as such, the execution of the document Ex. MW1/12 has remained unestablished. The main defence of the management has already failed and coupled along with the fact that management has avoided to examine the proprietor and in his place they have examined a person who was neither competent nor aware about the facts on a personal level nor he could be as it was not even established that he was in the employment of the management at any point of time. Management has already admitted that workman Babu Lal was an employee of the management. Management has failed to prove that the appointment of the workman was on a contractual basis as claimed by the management and management has come up with Ex. MW1/12 only to wriggle out of all their liabilities consequent to wrongful termination.
34. All the authorities relied upon by both parties are absolutely irrelevant and nonapplicable to the factual situation of the case. Reference is being made to the same. The authority relied upon by workman is Makhan Singh V. Narainpura Coop. Agri. Ser. Soc. Ltd & Anr, 4JT 1987 (3) 8C page 87.
Authorities relied on by management are as under: (1) LLR 2006, Supreme Court, Punjab State Electricity Board Vs. Darbara Singh, page 68.
(2) LLR 2002 page 865 Supreme Court, Haryana State FCCW Store Ltd. & Another Vs. Ram Niwas & Another.
(3) LLR 2005 page 1083 Supreme Court, management of Kalpatru Vidya Samasthe ® & Another Vs. S.B. Gupta & Another. (4) LLR 2004 Kerala, page 1025, West Fort Hospital Vs. State of Kerala.
(5) LLR 2001 Supreme Court page 849, Harmohinder Singh Vs. Kharga Canteen, Ambala Cantt.
(6) LLR 2001 Delhi page 51, Sanjay Kumar Sharma Vs. National Centre for Trade Information & Others. (7) LLR 2001 page 1010 Gujarat, Naresh Kumar Mani Lal Parmar Vs. ONGC Limited & Another.
(8) LLJ 2006 PartII page 553, Supreme Court, Municipal Concil Samrala Vs. Raj Kumar.
(9) AIR 1996 Supreme Court page 1001, State of Rajasthan and Others Vs. Rameshwar Lal Gahlot.
(10) A.D. 2005X, Supreme Court page 171, Kishore Chander Samal Vs. Divisional Manager Orissa State Cashew Development Corporation Ltd.
(11) LLR 2006 page 851 Delhi, Automobile Association of Upper India Vs. P.O. Labour CourtII & Another.
(12) LLR 2003 page 1130 Allahabad, Etawah Kshtriya Gramin Bank, Etawah Vs. P.O. Central Govt. Industrial Tribunal. (13) LLR 2004 page 418 Allahabad, U.P. State Electricity Board Vs. Presiding Officer, Labour CourtIV, Kanpur.
35. In view of the above discussion, Issue No. 1 is decided in favour of the workman Babu Lal and against the managbement. However, keeping in view the passage of a long time span since termination, all the facts and circumstances of the case, it shall now be more appropriate to award compensation in lieu of reinstatement and back wages with continuity of service. Accordingly, I award a sum of Rs. 3,00,000/ (Rs. Three Lakh only) as compensation to the workman Babu Lal. Copy of the award be sent to appropriate government for publication within 30 days from the receipt of the award. File be cosigned to record room. Announced in the open court Today on 23/10/2007 (SUJATA KOHLI) Presiding Officer Labour CourtII, Court No. 48, KKD Courts, Delhi.