Delhi District Court
Between The vs The on 17 September, 2012
IN THE COURT OF SH. S.S. MALHOTRA, PRESIDING OFFICER,
LABOUR COURT NO. IX, KARKARDOOMA COURTS, DELHI
ID NO. 256/11
Unique Case ID No. 02402C0146722011
BETWEEN THE WORKMAN
Sh.Ram Dhayan
s/o Sh.Nathuni Prashad
c/o Janhitkari General Karamchari Union,
B16, Rajendra Jaina Tower Basement,
Near Petrol Pump, Wazirpur Complex,
Delhi 52
AND THE MANAGEMENT OF
M/s Carton and Containers India Pvt. Ltd.
B6, Industrial Area,
G T Karnal Road,
Delhi 33.
Date of Institution : 09.05.2011
Date on which award reserved : 31.08.2012
Date on which award passed : 17.09.2012
A W A R D
1 Vide this order, I shall dispose off the reference no. F. 24/ID.
(473)/10/NWD/(60)/10/Lab./379195 dated 25.4.2011 as received from the
Dy. Labour Commissioner, North West District, Govt. of NCT of Delhi to
the following effect:
"Whether an employer employee relationship existed between Sh. Ram Dhayan
s/o Sh.Nathuni Prasad and the management;
(ii) And if so, whether the services of said Shri Ram Dhayan s/o Shri Nathuni Prasad have
been illegally and/or unjustifiably terminated by the management; and if yes, to what relief
is he entitled and what directions are necessary in this respect?".
ID NO. 256/11 1/11
2 After receiving of the reference notice was issued to the workman with
directions to file statement of claim which has been filed him him. It is stated by the
workman in his statement of claim that he had been working initially with M/s
Indian Carton and containers since 1993 and subsequently with the present
management M/s Carton and containers India Pvt Ltd and his last drawn salary was
Rs.4500/. He was performing his duties with full honesty and dedication and had
worked for more than 240 days in each year and he never afforded any chance of any
complaint to the management but the management was not providing him any legal
facilities i.e. appointment letter, attendance card, pay slip, Wages of leave,
encashment towards leave and bonus etc and whenever workman demanded for the
same, the management on the pretext of providing such benefits got the signatures of
the workman on various papers and even on stamped vouchers and when the
workman demanded the same persistently, the management got annoyed and instead
of providing legal facilities they started finding excuses for terminating the services
of the workman and on 28.5.2010 when workman reached the office of the
management, he was not allowed to resume his duties and was terminated without
providing earned wages for the month of May 2010 without any notice pay or
without conducting any domestic inquiry and without charge sheeting the workman
which is in violation of section section 25 F of the I.D. It is further submitted that
after termination, workman sent a complaint to the Labour Conciliation Officer Nimri
Colony on 15.7.2010 but despite visit of the Labour Inspector, the management has
not reinstated him and as such workman sent a demand letter to the management
thereby asking the earned wages and his reinstatement but said notice was neither
replied nor complied with and ultimately, the workman raised Industrial Dispute
with Asst. Labour Commissioner Nirmri Colony where also the management was
adamant and did not show any interest for reinstatement of the workman and as such,
ID NO. 256/11 2/11
reference was sent to this court as mentioned herein above for adjudication. It is
further submitted that the workman has filed present statement of claim in terms of
said directions of the court and it is prayed that the management be directed to
reinstate the workman with full back wages and consequential benefits.
3 The management was summoned and it filed its WS on 20.9.2011 in which
the employer and employee relationship was denied. Thereafter, the workman also
filed rejoinder and issues were framed on 10.10.2011 and then the matter was fixed
for evidence. The management subsequently filed an application for amendment of
WS in which it sought permission to add the fact that the workman was employed
with the management from 12.9.97 and he only worked with the management upto
1.4.2001 which application was allowed vide order dated 10.2.2012 and thereafter the amended WS was taken on record and the facts of the amended WS are being mentioned herein above.
In the preliminary objection the management has submitted that there had been no relationship of employer and employee between the workman and the management after 01.4.2011 ( as it has been mentioned in the WS) and it is further submitted that claimant joined services of the management on 12.9.97 and thereafter he resigned on 01.4.2001 and present claim has been filed by workman against the management for the purpose of harassing the management and ultimately for negotiating and extract maximum possible money from the management by bargaining and otherwise the present claim is absolutely false, frivolous, vexatious and is liable to be dismissed. It is further submitted that the present statement of claim is not covered within the definition Sec.2(A) of the Industrial Disputes Act and even from this angle the present claim is liable to be dismissed. It is further submitted that the claim is liable to be rejected on the ground that workman has not approached this Hon'ble Court after complying essential procedure as no valid and proper ID NO. 256/11 3/11 demand notice was sent to the management ever and even otherwise, workman at present is gainfully employed and therefore is not entitled for any benefits. On merits it is denied that the workman has worked with the management since 1993 and reiterated that he has been working with the management w.e.f 12.9.97 and he had worked only upto 01.4.2001 and thereafter he resigned himself and even otherwise, the management has no linkage whatsoever with M/s Indian Carton & Container, as both are separate & independent entities. It is denied that management ever changed its name. It is denied that the workman has not been provided with legal facilities or that he had been working with the management sincerely, honestly or with full devotion as alleged. The termination of the workman on 28.5.2010 is also denied. It is also denied that the Labour Inspector has ever visited the management premises or that the management apprised any fact to the Labour Inspector as alleged and all other facts of the Preliminary objection are reteirated and facts of the statement of claim are denied word by word and it is submitted that the workman is gainfully employed therefore is not entitled for any benefits. 4 No rejoinder of the amended statement of claim is filed and the workman adopted the previously filed rejoinder in which he denied the contents of the written statement and reiterated the contents of the statement of claim. After the completion of pleadings, following issues were earlier framed on 10.10.2011:
1. Whether the claimant had been working with the management regularly since year 1993 at the post of Helper drawing wages @ RS. 4500/ Per month?
2. Whether there was employer and employee relationship between the parties herein?
3. Whether the services of the workman have been terminated illegally and/or unjustifiably by the management?
ID NO. 256/11 4/11
4. Relief.
5 After the filing of amended written statement, on additional issue was also framed on 17.2.2012 which is as follows: Whether there is no employer and employee relationship in between the parties after 1.4.2001?
6 After the framing up of the issues, parties were given opportunity to lead their evidence to prove their respective contentions/pleas and the Workman accordingly has examined himself as WW 1 and closed his evidence and the management has examined Shri Puneet Ganotra Manager of the management as MW1 and closed its evidence.
7 I have heard the arguments of the workman and perused the record. My issue wise findings are as follow: 8 ISSUES NO. 1 The onus to prove of this issue was upon the workman and he had to prove that he had been working with the management since 1993 and his last drawn wages were Rs. 4500/.
i Workman deposed in terms of his statement of claim in the evidence. He was cross examined at length. In cross examination the workman admitted that he has not placed on record or document to show that he was working with the management since 1993 but he again said that he has placed on record such documents. He denied the suggestion that he was working with the management w.e.f 12.9.97 or that he resigned on 1.4.2001. He denied the suggestion that he is not having any such document because he had not worked with the management after 1.4.2001. 9 The management in his evidence filed the affidavit and deposed in terms of its ID NO. 256/11 5/11 WS. As far as relationship is concerned, in the claim filed by the workman before conciliation officer, the management had denied relationship and only for that reason the reference which was received before this court was also to that effect and the court had to adjudicate as to whether there is any employer - employee relationship existed between the workman and the management and the same was even the stand of the management in its first WS before this court. However, subsequently management has amended WS in which he admitted the relationship with the workman but only w.e.f 12.9.97 to 1.4.2001 Therefore, irrespective of the length of service, the relationship has been admitted therefore it is now held that there existed employer employee relationship in between the parties atleast from 12.9.97 to 1.4.2001. The second part of the issue was as to whether workman had worked from 1993 as is being claimed by the workman or whether he worked from 12.9.97 as claimed by the management. The onus to prove was also upon the workman. The workman has conceded that he does not have any document to show that he had been working with the management since 1993 . Therefore this part of the issue is decided against the workman. As far as last drawn wages of the workman are concerned, there is no specific denial of this fact by the management. Accordingly, issue no. 1 is answered by holding that the workman had been working with the management from 12.9.97 and his last drawn wages were Rs. 4500/. ISSUES NO.2 and Additional issue no. 1.
10 The onus of issue no. 2 was upon the workman and onus of additional issue no. 1 was upon the management. THe workman had to prove that there is an employer - employee relationship in between the parties upto 2010 i.e.upto the date of termination of the workman and this issue was framed when WS was not amended and after amendment of the WS additional issue was framed. As far as ID NO. 256/11 6/11 additional issue is concerned the Management has come out with plea that workman was working with the management since 12.9.97 and it was further contented by the management that the workman was no more an employee of the management after 1.4.2001. This part of the issue that the workman has resigned on 1.4.2001 was to be proved by the management as after admission of the relationship, the onus stand shifted upon the management to prove that the workman has resigned voluntarily from the services on 1.4.2001 11 Coming to the evidence part , the management had cross examined the workman and workman has denied that he had resigned on 1.4.2001. The management although in its evidence has relied upon the document i.e MW1/1 and MW1/2 but no document like MW1/1 and MW1/2 was got confronted from this workman during his cross examination by putting suggestion to the workman that these two documents bears signatures of the workman. Further, the workman was suggested as to whether he has received amount from PF department after filling up form no. 19 which suggestion was denied . He further admitted that he has no document to prove that he had worked ever with the management after 1.4.2001. There is also certain suggestion to the effect that whether present management i.e M/s Carton and container India Pvt Ltd and M/s Indian Carton and Containers are two different entities but court is of the opinion that this issue has no relevance now as the management itself has ultimately admitted that there existed relationship between workman and the management. He further admitted that he is not having any document like salary slip, ESI or PF but volunteered that he does not have any such document because same are not being provided to him at any point of time. He further denied the suggestion that he left the services of management on 1.4.2001and the amount of Rs. 9490/ was given to him in cash on 1.4.2001 in full and final settlement.
ID NO. 256/11 7/11 12 The management on the other hand, has filed its own affidavit to prove this issue and in evidence it deposed in terms of its amended WS and has exhibited MW1/1 i.e resignation letter and MW1/2 full and final receipt and he has also filed its attendance register. He was cross examined by the Ld ARW and in cross examination he deposed that he himself has been appointed in April 2006. He has not filed any resolution to the effect that the management has appointed him as Manager with the management but he volunteered that he was given appointment letter . He again said that , he has not brought any appointment letter in the court . He has also admitted that WS was prepared by AR and he has only little bit information with respect to the contents of the WS. Affidavit of evidence bears his signatures but he signed the same in the office of AR and affidavit was got attested by his counsel and not by him.
13 I have perused the testimony of this witness of the management has certain short comings.
14 This witness MW1 himself has been appointed in April 2006 and he is trying to prove document of the management i.e MW1/1 and MW1/2 which are of the dates for the date 1/4/2001. On 1/4/2001, this witness was not in the employment of the management and as such, it can be safely said that the workman has not signed this document in his presence The management otherwise, has not put these two documents to the workman, during cross examination of the workman for the purpose of getting the same confronted or corroborated. This witness otherwise, has not filed his own appointment letter. There is no resolution in the court record by which this witness has been authorized to depose. This witness also admits that it does not have the complete knowledge w.r.t. Contents of the WS and this witness has also not deposed that he is well conversant with the signatures of the person who has signed MW 1./1 & MW 1/ 2. Therefore, the court is of the opinion that this witness has been ID NO. 256/11 8/11 sent by the management half heartedly and the best available evidence with the management has been avoided and is not produced by the management for the reasons best known to it. More so, the affidavit of the evidence as filed by this witness has not been got attested in accordance with law and the same fact is fairly conceded by MW 1 by stating that he has not got his affidavit attested. Therefore, the testimony of MW 1 is not worthy of relying in the present facts and circumstances particularly when MW 1/1 and MW1/2 have not been got confronted with from the workman during his cross examination and this witness by itself is unable to prove these two documents, as these documents neither has been prepared in his presence nor this witness has deposed that he is well acquainted with the signatures of the workman. Therefore, keeping in view the totality of the evidence, the Court is of the opinion that the management has failed to prove that workman has resigned in terms of MW1/1 or has received full and final settlement in terms of MW1/2. Issue no. 2 and Additional issue therefore, are disposed off by holding that there existed relationship of employer and employee between the workman and the management from 12.9.97 upto 28.5.10 and the workman has never resigned on 1.4.2001. 15 ISSUES NO.3
The onus of this issue was upon the workman and he had to prove that his services have been illegally and unjustifiably terminated by the management. Management has failed to prove that the workman has resigned and workman other wise has contended that he has worked with the management upto 28.5.2010 and from all these facts, the contention that the management was not providing legal facilities or it was not issuing attendance card or appointment letter., pay slip etc is concerned also stands proved as management has failed to prove that workman has resigned in 2001. The workman claims that he had been working upto 28.5.2010, the ID NO. 256/11 9/11 court is of the opinion that contention of the workman is well found that the management had neither been maintaining proper records nor had been supplying legal facilities to the workman as it cannot be presumed at all that workman was not working with the management from April 2001 upto May 2010 i.e for ten years and it is not the plea of the management at all that the claim of the workman is timebarred or that he had come to the court after 10 years of his resignation or that the workman has not completed 240 days of continuous service from the alleged date of his termination. Therefore, the contention of the management that the workman is trying to bargain with the management does not appear to be well found. Management otherwise has not conducted any domestic inquiry before terminating services of the workman. Therefore, for all practical purposes it is held that the management has terminated services of the workman illegally and unjustifiably. Therefore, issue is answered in favour of the workman.
RELIEF:
16 Keeping in view issuewise findings of this court on issues no. 1 to 4, the workman is entitled to relief claimed. However, the workman has claimed reinstatement and compensation alongwith full back wages. Since the management claims that the workman has left services in 2001 and initial stand of the workman was that workman was never employee of the management, court is of the opinion that there is complete loss of faith in between both the parties and in such circumstances, reinstatement of the workman would not be in the interest of both the parties and compensation would be better option. As far as, compensation is concerned, workman claims that his services have been terminated on 28.5.2010 and he is unemployed since then. Workman is an able bodied person and it cannot be presumed that he was sitting without work for all such period . No doubt there may ID NO. 256/11 10/11 be certain initial difficulties to have alternate job but for all the period of two years it cannot be presumed that workman had been sitting idle without any work. On the other hand, management has claimed that the workman had been gainfully employed somewhere but management has also not given any specific name of any of the institution where the workman would have been working. In the cross examination of the workman, the workman was cross examined by the Ld. ARM and it is nowhere suggested as to what are the family expenses of the workman and how they are being managed.
17 Keeping in view the totality of the facts and circumstances, the court is of the opinion that the interest of justice would meet if compensation to the extent of 50% of last drawn wages of the workman or minimum wages prevalent from time to time, whichever is higher, is awarded to the workman. Accordingly, the management is directed to pay 50% of the last drawn wages to the workman or 50% of the Minimum wages, whichever is higher to the workman w.e.f date of his termination i.e 28/5/2010 upto date of award within a period of one month from the date of award, failing which this amount shall carry a simple interest @ 8% per annum till realization.
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 THE OPEN COURT (S.S. MALHOTRA)
th
ON 17 SEPTEMBER,2012 PRESIDING OFFICER LABOUR COURTIX
EAST DISTRICT/KARKARDOOMA
COURTS/DELHI
ID NO. 256/11 11/11
ID no.256/11
17.9.2012
Present: Sh.Raj Kumar, Ld.ARW
Sh.Sourabh Munjal, Ld.ARM
Vide my separate award, a compensation to the extent of 50% of last drawn wages of the workman or minimum wages prevalent from time to time, whichever is higher, is awarded to the workman. The management is directed to pay 50% of the last drawn wages to the workman or 50% of the Minimum wages, whichever is higher to the workman w.e.f date of his termination i.e 28/5/2010 upto date of award within a period of one month from the date of award, failing which this amount shall carry a simple interest @ 8% per annum till realization.
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.
(S.S.MALHOTRA) POLCIX/17.9.2012 ID NO. 256/11 12/11