Delhi District Court
Between The vs The on 11 July, 2013
IN THE COURT OF SH.S.S.MALHOTRA, PRESIDING OFFICER, LABOUR
COURT NO. IX, KARKARDOOMA COURTS, DELHI
ID NO.187/12
Unique Case I.D. No. 02402C0190672012
BETWEEN THE WORKMAN
Sh.Shambhu Ram s/o Sh. Paviter, R/o N28B426, Azad Colony, Wazipur, Delhi as
represented by Delhi State General Karamchari Union, B266, Chander Shekher Azad
Colony, Opposite B62 Group, Wazirpur Industrial Area, Delhi52.
AND THE MANAGEMENT OF
M/s G.T. Industries, C36, Wazirpur Industrial Area, Delhi52.
Date of Institution : 2.07.2012
Date on which award reserved : 6.07.2013
Date of passing of award : 11.07.2013
AWARD
1 By this award, I shall dispose off the reference as sent by the Ld. Deputy Labour
Commissioner, Distt. NorthWest, Govt. of the National Capital Territory of Delhi arising
between the parties named above to this Labour Court vide Notification No. F.24/ID/
(79)/12/NWD/(172)/12/Lab./601115 dated 23.05.12 with the following terms of
reference:
"Whether services of Sh. Shambhu Ram s/o Sh. Paviter have been terminated
illegally and /or unjustifiably by the management; and if yes, to what relief is he entitled
and what directions are necessary in this respect?"
2 After the receipt of the reference, notice was issued to the workman with directions
to file the statement of claim which has been filed by workman and he has interalia stated
that he was in the continuous and uninterrupted employment of the management since
1.04.1994 at the post of Karigar and his last drawn salary was Rs.6660/ per month and he I.D.No.187/12 1/12 had completed 240 days of continuous service with the management every year and he had been doing his duties with hard labour, sincerity, honesty and due diligence and he never afforded any chance of complaint to the management in any manner nor he was ever charge sheeted by the management but despite that the management had not been providing him legal facilities like appointment letter, wages slip, leave book, bonus, ESI, PF, minimum wages etc. which were orally demanded by the workman from the management various time but the same were not being provided to him. However, on the persistent demand of the workman the management only provided the ESI facility to the workman, that too, at very later stage. It is further stated that the workman demanded the legal facilities time and again, which annoyed the management and the management terminated the services of the workman on 10.12.2011 illegally, arbitrarily and unjustifiably without any notice or information and without paying retrenchment compensation or notice pay to the workman and the management even withheld the earned wages of the workman w.e.f. 1.11.11 to 10.12.11. It is further stated that thereafter the workman lodged a complaint dt.12.12.11 against the management before the Assistant Labour Commissioner, Labour Office, Nimri Colony, Ashok Vihar, Delhi through his union, whereafter the labour inspector visited the management and tried to impress upon the management to take the workman back on duty and also to pay his earned wages. Although the management paid the earned wages of the workman for the aforesaid period, but refused to reinstate him back on duty. The workman even sent a demand notice to the management on 24.01.12 through regd. AD but of no avail and as such the workman filed his statement of claim dt. 30.01.12 before the Conciliation Officer, Labour Office, Nimri Colony, Ashok Vihar, Delhi, although the management appeared before the conciliation officer but due to adamant attitude of the management, conciliation failed and ultimately the matter was referred to this court by way of I.D.No.187/12 2/12 aforementioned reference for adjudication by the Ld. Dy. Labour Commissioner, Distt. NorthWest and the workman in terms of the directions of the court has filed the present statement of claim with a prayer that the management be directed to reinstate him at the same post with full back wages including benefits of continuity of service and all other consequential benefits alongwith interest @ 18% per annum.
3 The management was served and it filed its written statement thereby taking preliminary objections interalia that the claim of the workman is not maintainable as the management has already closed down its factory due to heavy losses in the business and it is further stated that the management company had already affixed a notice on 7.08.11 on the notice board of the factory premises thereby giving information regarding the closure of factory w.e.f. 9.12.11 and thereafter the workman has received his payment of earned wages of Rs.5390/ for the month of November 2011 on 8.12.11 itself and after receiving the said payment he has filed the false complaint before the Asstt. Labour Commissioner in the month of December 2011 and in response to which the management appeared before the labour commissioner office and it told all the facts to the concerned labour inspector and then the management on 17.01.12 also paid Rs.1944/ as remaining wages of 8 working days for the month of December 2011 to the workman as instructed by the concerned labour inspector and the copy of payment to the workman made is Annexure M2. It is further stated that the management had given the information regarding closure of its factory w.e.f. 9.12.11 and on 13.12.11 the management even intimated the Joint Director, ESI, Rohini for closure of factory w.e.f. 9.12.11 vide letter dt. 12.12.11 and the copy of the letter dt. 12.12.11 is Annexure M3 and as such nothing is due against the workman and it is stated that the present claim has been filed after the management has closed its manufacturing activities and the workman otherwise is not entitled to any relief after the closure of the unit. I.D.No.187/12 3/12 3.1 As far as merits are concerned, the employeremployee relationship is not denied but it is denied that the workman joined the duty w.e.f. 1.04.1994 at the post of Karigar and his last drawn salary was Rs.6660/ and it is submitted that the workman joined the duty only on 4.11.04 and not on 1.04.1994 and his initial salary was Rs.2865/ per month and the ESI facility was made applicable to him on the date of his joining itself and his last drawn salary was Rs.5390/ As far as working of the workman honestly and full dedication is concerned, same is denied and it is submitted that the workman used to remain absent from the duty several times without intimation to the management but despite his wrongful acts and deed the management never charge sheeted to the workman and the fact that legal facilities were not being provided to the workman is denied word by word. It is also denied that the services of the workman were terminated by the management on 10.12.2011 illegally when he demanded his legal facilities from the management and the facts in terms of preliminary objections that the management has already closed its factory on 9.12.11 are reiterated. It is further stated that the workman had lodged a false complaint before the Asstt. Labour Commissioner and after knowing that the management company has been closed on 9.12.11, it was not possible for the management to make such statement for reinstating the workman before the said authority and it is reiterated that the workman has received the full and final payment of his earned wages from the management. It is further stated that the management factory suffered a heavy loss in its business which compelled the management to close down its unit on 9.12.11 and all these facts were told to the labour inspector concerned. It is also denied that the workman is unemployed from the date of his alleged termination. All other facts of the statement of claim are denied word by word and accordingly, it is prayed that the claim of the workman be dismissed. 4 The workman thereafter filed rejoinder in which he specifically denied that the I.D.No.187/12 4/12 management has closed its factory w.e.f. 9.12.11 and it is submitted that the management was not providing various legal facilities to the workman and when the workman demanded his legal facilities from the management time and again, the management got annoyed and it terminated the services of the workman on 10.12.11 illegally. As far as merits are concerned, the contents of the written statement of the management are denied word by word and the workman has reiterated and reaffirmed the contents of the statement of claim and it is prayed that an award may kindly be passed in favour of the workman in terms of the prayer made by him in the statement of claim.
5 After the completion of pleadings, the following issues were framed on 5.10.12: 1 In terms of reference?OPW 2 Relief.
6 After the framing up of the issues, both the parties were given opportunity to lead their evidence to prove their respective contentions/pleas and accordingly, the matter was fixed for workman's evidence and the workman has accordingly examined himself as WW1 but he was not cross examined by the Ld.ARM. Despite closing the opportunity of the management to cross examine the WW1, the management never filed any application thereby seeking any opportunity from the court to cross examine the WW1 and as such the workman closed its evidence. Thereafter, opportunity was given to the management and the management has examined Sh.M.P. Singh (Proprietor of the management) as MW1 and then management also closed its evidence. Thereafter, matter was fixed for final arguments. 7 I have heard the arguments and perused the record. My issuewise findings are as follows:
ISSUE NO. 1 8 The only issue before this court is as to whether the services of the workman have I.D.No.187/12 5/12 been terminated by the management illegally and unjustifiably and the onus to prove this issue upon the workman. The claim of the workman is that he was working with the management since1.04.1994 and all of a sudden when he demanded the legal facilities, the management got annoyed and ultimately it terminated the services of the workman. On the other hand the defence of the management is that there was no termination of the workman, rather the management already affixed a notice dt. 7.08.11 on the notice board of the factory premises thereby intimating all the employees that the management is likely to close its manufacturing activities w.e.f. 9.12.11 which fact was well within the knowledge of the workman and the management had given salary to the workman on 8.12.11 and closed down its manufacturing activities w.e.f. 9.12.11 and as such there is no question of terminating the workman, that too, after getting annoyed from the alleged demand of legal facilities by the workman.
9 The workman has deposed in terms of his statement of claim and the management has deposed in terms of its written statement. The workman has not been cross examined by the management. Therefore, the testimony of the workman has gone unrebutted. However, the workman himself has relied upon the Ex.WW1/1 i.e. photocopy of ESI smart card and on this smart card, no date of appointment has been mentioned. Therefore, neither the workman nor the management has any documentary evidence to prove that what is the date of appointment of the workman. The contention of the management is that the workman was appointed on 4.11.2004 and the ESI card was issued to the workman immediately vide ESI registration no. 5485230. The management has not been able to give any concrete evidence to prove this fact as to ESI card was issued to the workman on a particular date and there is no cross examination of the workman by the Ld.ARM. The court is accordingly of the opinion that the facts as stated by the workman with respect to his date of appointment have I.D.No.187/12 6/12 gone unrebutted. Therefore, prima facie, it is clear that the workman had been working with the management since 1.04.1994.
10 Now coming to the next aspect as to whether the management got annoyed when the workman demanded the legal facilities from the management, or whether the workman was terminated from the services by the management illegally or whether the management has closed its manufacturing activities w.e.f. 9.12.11.
11 The management in its evidence has exhibited certain documents i.e. Ex.MW1/1 which is photocopy of payment sheet for the month of November 2011 , Ex.MW1/2 which is photocopy of payment sheet for the month of December 2011, Mark X which is photocopy of intimation for closure of factory dt. 9.12.11 to the Joint Director, ESIC, Rohini, Delhi, Mark Y which is photocopy of notice dt. 7.08.11 regarding giving information to its employee with respect to closure of its factory w.e.f. 9.12.11 and Mark Z which is photocopy of another intimation for closure of factory dt. 12.12.11 to the Joint Director, ESIC, Rohini, Delhi.
12 Now firstly coming to the aspect whether the legal facilities were being provided to the workman by the management or not. In cross examination, the MW1 admitted that appointment letter was not being issued to the workman and he volunteered that facility of ESI card was given to him from that very date. He however admitted that leave encashment was not being given to the workman and he further admitted that whenever he used to go on leave, his salary was not being deducted on account of leaves taken by him. He otherwise admitted as correct that facility of ESI was being given to the workman from the date of appointment. As far as facility of PF is concerned, it is deposed that the same was not being given to the workman and he volunteered that since the same was not applicable to their unit and as such the same was not given. As far as bonus is concerned, it is deposed that the I.D.No.187/12 7/12 bonus was being given on Diwali festival every year. He further deposed that the record of bonus register has not been filed on court record and he denied the suggestion that the workman demanded the legal facilities, his services were terminated by the management. From all these evidence, it is clear that apart from the appointment letter and leave encashment, other legal facilities were being granted to the workman. The workman claims that he had been working with management since 1.04.1994 which means that he had been working with the management for about 17 years and such a long serving employee becomes an asset to the industry and the court is of the opinion that merely on the ground that appointment letter was not being given to the workman, it cannot be held that all the legal facilities were not being granted to him nor it can be the ground of termination of the workman, that too, when the workman had been serving the management for last 17 years and it otherwise cannot be believed that bonus was not being given to the workman for 17 years and if the management has not filed the record of bonus register on the court record, the workman was supposed to move an appropriate application before the court for summoning the record of the management so as to prove all these legal facilities were not being given to him. The management otherwise was given the suggestion that there were 40 workers working with the management which fact was denied by the management, yet the court is of the opinion that if 40 workers were working with the management, then otherwise it is not possible to presume that the bonus and legal facilities were not being granted to any other worker and if some of the other workers were being granted the facility of bonus, such workers could have been examined by the workman. Therefore, prima facie the court is of the opinion that the workman has not been able to prove that his services have been terminated by the management merely on the ground that when he demanded the legal facilities, his services were terminated by the management.
I.D.No.187/12 8/12 13 Now coming to the next aspect whether the management has closed its factory. The management has contended that it has affixed a notice on 7.08.11 itself on the notice board of the factory premises that it is likely to close its factory w.e.f. 9.12.11 and the said notice reads as under:
"All the workers are being informed that due to losses in the factory of the management, the factory of the management would be closed on 9.12.11 and all the workers are respectfully submitted that they may try to search other job elsewhere and the management factory would not be responsible for the working of the workers after 9.12.11."
14 In cross examination of MW1, he denied the suggestion that Mark X, Mark Y and Mark Z are fabricated documents and he also admitted as correct that the management has not written any letter to the management thereby calling him back on duty and he volunteered that as the management has already closed its factory by that time. He also admitted as correct that no separate letter has been written to the workman thereby informing him that the management is likely to close its manufacturing activities w.e.f. 9.12.11 or that the management is ready to pay the closure benefits to the workman. He also admitted as correct that the management has not informed the labour office with respect to closure of its unit and he volunteered that it wrote a letter to ESIC department which is Mark Z. He denied the suggestion that the factory of the management is still running. 15 This is the entire evidence concerning this issue and the court is of the opinion that if the workman is of the opinion that the management is still running, then some sort of evidence has to be brought on record by the workman himself. The workman can only be successful in getting reinstatement if he is able to prove that the management is still in I.D.No.187/12 9/12 existence and if the contention of the workman is that Mark Z is false and fabricated document which is received by the ESIC department, then the workman should have summoned the ESI record to prove that the management is still running. Apart from this, there were other 37 or 38 other workers as per the suggestion of the workman, who are still working with the management whose ESI contribution might have been deducted would have been deposited by the management with ESIC authorities but there is no such evidence brought by the workman on the court record nor any effort has been made by the workman to prove that the management is still running.
16 As far as the other contention of the management that it has not written any separate letter to the workman is concerned, this can also not be appreciated much as the workman admittedly has been working with the management and he has received his salary on 8.12.11 knowingly well that the management is likely to close its factory w.e.f. 9.12.11 and the only dispute on 8.12.11 was that the salary for 8 working days of December 2011 has not been paid to him and the workman was in quite haste to initiate the legal proceedings against the management as the complaint to the labour inspector has been made on 12.12.11 itself. Even it is the case of the workman himself that when the proceedings started before the Nimri Colony Labour Office, the management appeared, although it did not reinstate the workman but the management has paid the earned wages to the workman for the aforesaid period. It shows the bonafide on the part of the management. The management even otherwise has admitted that apart from the earned wages, the management has not given any other compensation or full and final settlement to the workman. That may be due against the management and the management has also admitted that it has not informed the workman at all that it is ready to pay the closure benefits to the workman. The court is of the opinion that as far as payment of closure benefits is concerned, the same is altogether a different I.D.No.187/12 10/12 aspect which the workman otherwise is entitled to get in accordance with law but the fact that his services were terminated when he demanded the legal facilities from the management is altogether a different aspect and keeping in view this peculiar fact of this case, when the workman claims that his services have been terminated on 10.12.11 i.e. the date when the management has already closed its factory w.e.f. 9.12.11, the preponderance of probability appears to be in favour of the management. The contention of Ld. ARW that the notice of the court with respect to present claim was served upon the management on the same address also does not find any merit as the MW1 in his cross examination has deposed that summons were received by his neighborer Sh. Ram Preet Singh and not by him personally on the given address. I have perused the report, on the summon which also reads as under that one person met on the spot who told his name as Ram Preet Singh and told himself to be the owner of the management and accepted the notice. Therefore, it is clear that the management had not personally received the notice on the given address. The management claims that Ram Preet Singh was his neighborer, whereas the report on the process indicates that Ram Preet Singh was the owner of the management. Admittedly Ram Preet Singh is not the owner of the management as the MW1 has submitted that the claim has been filed against the present management and Sh. M.P. Singh is the proprietor of this management which fact otherwise has not been denied by the workman. Further, mere from the fact that summons were sent on the given address, it can not be presumed that the management is running its business activities on the given address as it is not the case of the management that it has shifted from this address, rather the only contention of the management is that it has stopped its manufacturing activities from this address, although he is still residing there. Even the affidavit of evidence filed by the management, the same address is given i.e. C36, Wazirpur Industrial Area, Delhi52. Therefore, this contention of I.D.No.187/12 11/12 the workman is not well found and from all these facts, the court is of the opinion that the workman has failed to prove that the management is still running on the given address, whereas the management has been able to prove that it has closed its manufacturing activities w.e.f. 9.12.11 and as such the contention of the workman that his services have been terminated by the management merely on the ground that when he demanded the legal facilities which annoyed the management appears to be not well found and not proved. Accordingly, issue no.1 is answered by holding that the workman has failed to prove that his services have been terminated by the management illegally and unjustifiably. However, this is without prejudice to the rights of the workman if he is entitled for closure benefits from the management in accordance with law. This issue is decided accordingly. RELIEF (ISSUE NO.2):
17 Keeping in view the finding of the court of issue no.1 to the extent that the workman has failed to prove that his services have been terminated by the management illegally, it is held that the workman is not entitled to any relief against the management in this matter. An award to that effect is passed today and the reference is answered accordingly.
A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt/Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
ANNOUNCED IN OPEN COURT (S.S.MALHOTRA)
ON 11th JULY, 2013 PRESIDING OFFICER: LABOUR COURT
IX/
KARKARDOOMA COURTS/DELHI
I.D.No.187/12 12/12