Delhi District Court
Chalittar & Ors. vs . M/S. Wadhera Furniture Pvt. Ltd. & Anr. ... on 22 March, 2014
Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI:
KARKARDOOMA COURTS: DELHI
REFERENCE CASE (ID No. 74/06)
UNIQUE CASE ID No. 02402C0003191995
In the matter of :
Sl. Name and Parentage of the Residential address of the workman.
No. workman.
01. Chalittar
02. Panchu Gopal Mandal S/o Subhash R/o. 349, Pul Prahalad Pur, Badar Pur Border, New Delhi.
Chander Mandal,
03. Manoj Kumar S/o Sh. Ram Chander R/o. Village Rosera Ghat, District Samsthpur, Bihar. Also
Shah at: 481, Indira Camp, Okhla Phase I, New Delhi.
04. Hari Sharma
05. Sant Ram Sharma
06. Vinod Singh Rawat S/o Sh. Madho R/o. Village Makot Patti Rawat Sayun, Dsitrict Pauri
Singh Rawat Garwal, P.O. Kirti Nagar, Tihri Garwal, Utranchal 249161.
07. Devendra Singh Negi
08. Babu Ram S/o Sh. Ram Lal / Ram R/o. Village Muriyari, Post Shisvaniya, District Sant Kabir
Legan Nagar, U.P.
09. Bhardul S/o Sh. Girdhari Ram R/o. Village Sifriya Khurd, Post Sifriya Kalan, District
Walia, U.P.
10. Sri Kant Mishra S/o Sh. Ram Avadh R/o. RZH27, Mittal Colony, Badarpur 44.
Mishra
11. Bisram S/o Sh. Sahwali R/o. Village Amari, Post Amarhat, GPO Khurhut, District
Mau, Uttar Pradesh.
12. Dhan Raj S/o Sh. Mohan Ram R/o. Village Munchhapra, Post Munchapra (Revti), District
Balia, U.P.
13. Mangal Singh S/o Sh. Ram Avtar R/o. Village Dharmadih, Post Munhari, Distt Ghazipur, U.P.
14. Lal Bihari S/o Sh. Ganga Prasad R/o. Village Chiutahan, Post Vasavanpur, GPO Kauri Ram,
District Gorakhpur, U.P.
15. Kishore Kumar
16. Suresh Pal
17. Raj Kishore S/o Sh. Gajadhar R/o Village Chiutahan, Post Vasavanpur, GPO Kauriram,
District Gorakhpur, U.P.
18. Sham Raj Pal S/o Sh. Sham Singh R/o. Shalimar Gate No. 5, Post Shibpul, District Hawrah,
Rai West Bengal. Also at H. No. 725, Gali No. 13, Ekta Vihar,
Mithapur Extension, Badarpur , New Delhi.
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19. Ram Chandra
20. Raju
21. Suresh Kumar
22. Budhi Ram
23. Rajesh
24. Dinanath Verma S/o Sh. Ramdev R/o. Village & P.O. Vharva Barva, District Walia, U.P.
Verma
25. Muneshwar
26. Jai Prakash S/o Sh. Chandra Ram R/o Village Rahilapali, Post Sikandarpur, Distt. Walia, U.P.
27. Hridyanand Sharma
28. Shambhu Sharma
29. Porish
30. Vindeshwar Sharma
31. Ganga Lal
32. Jai Prakash
33. Radha Mohan S/o Sh. Mutur Ram R/o Village Chandpur, Post Sarya (Garvar), Dist.Walia, U.P.
34. Vijay Kumar
35. Jai Lal
36. Dhaneshwar Kumar S/o Sh. Biji R/o Post Jassidih, Post Dharhara, District Munger (Bihar)
Yadav Pin Code811212.
37. Sri Prasad S/o Sh. Chhote Lal R/o. Village Chiutahan, Post Vasavanpur, GPO Kauriram,
District Gorakhpur, U.P.
38. Mahesh Das S/o Sh. Satish Dass R/o. D34, South Extension Part II, New Delhi110049.
Also at A189, J.J. Camp, Gautam Puri, Ali Gaon, Delhi.
39. Ram Sevak
40. Ram Kirpal Prasad
41. Vishwanath S/o Sh. Sati Ram R/o. Village Amarhat, Post Amarhat, GPO Khurhar, P.S.
Maunath Vanjan, District Mau, U.P.
42. Narayan S/o Sh. Ramdhari R/o. Village Khajuha, Post Amhara, District Walia, U.P.
43. Prabhu Nath S/o Sh. Bansi Ram R/o Village & P.O. Nagpur, District Walia, Uttar
Pradesh221712.
44. Surender Gupta S/o Sh. Jagannath R/o. Village Amari, Post Amrahat, District Mau, U.P.
Prasad Gupta
45. Rakesh
46. Vijay Gupta S/o Sh. Ramdeo Gupta R/o. Village Khuthana, Post Khazni, District Gorakhpur,
U.P.
C/o Delhi State Kamgar Union,
Balmukund Khand, Giri Nagar,
Kalkaji, New Delhi19. .....Workmen / Claimants
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POLC - XI / KKD / DELHI / 22.03.2014
Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06
V/s.
(1) M/s. Wadhera Furniture Pvt. Ltd.,
A195196, Okhla Industrial Area, PhaseI,
New Delhi - 110020.
(Vadehra Furnishers Pvt. Ltd. as used vide Ex.MW1/1,
Authority Letter in favour of Mr. Nawal Kishore given
by Mr. Deepak Vadehra (Director) of Vadehra Furnishers Pvt. Ltd.)
(2) M/s. Sunita Wadhera & Associates,
A207, Okhla Industrial Area, PhaseI,
New Delhi 110020.
......... Managements
Date of Institution : 23.12.1995
Date of reserving for award : 11.03.2014
Date of award : 22.03.2014
AWARD:
1. TERMS OF REFERENCE
Vide ORDER No. F.24(1938)/95Lab./3730612 dated 22.11.1995
Secretary (Labour), Labour Department, Government of N.C.T. of Delhi, made
the following reference under section 10 (1) (c) and 12 (5) of the Industrial
Disputes Act, 1947 read with Govt. of India, Ministry of Labour Notification
No. S11011/2/75-DK (IA) dated the 14th April, 1975 for adjudication by
Labour Court No. X:
"Whether the services of workmen as per annexure A 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?"
1A. Vide ORDER No. F.25(Transfer)04/Lab./788085 dated 10.11.2004
Secretary (Labour) transferred the case to Labour Court No. VIII in exercise of
his powers under section 33 B of the Industrial Disputes Act, 1947.
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1B. Vide ORDER dated 17.02.2006 case was transferred to the Court of Ms.
Nisha Saxena, Ld. POLC pursuant to orders from Hon'ble Delhi High Court
and Ld. District and Sessions Judge, Delhi.
1C. Vide ORDER dated 23.05.2006 Ms. Aruna Suresh, Ld. District &
Sessions Judge: Delhi transferred the case from the Court of Ms. Nisha Saxena,
Ld. POLC / FTC to the Court of Ms. Deepa Sharma, Additional District Judge /
POLC - XI.
2. CASE OF WORKMEN AS PLEADED / ALLEGED IN STATEMENT
OFCLAIM:
(Note: Statementofclaim has been signed by workmen at serial no. 1, 2, 3, 6, 8, 9, 10,
11, 12, 13, 14, 16, 17, 18, 21, 23, 24, 25, 26, 27, 29, 31, 33, 34, 36, 37, 38, 40, 41, 43, 44
& 46. It bears thumb impression of workman at serial no. 22, 35 & 42.)
(i) Service details of the workmen are as under:
Sl. Name Post Date of Date of Last drawn
No. appointment termination salary (Rs.)
01. Chalittar
02. Panchu Gopal Mandal S/o Helper 07.03.1995 1495/
Subhash Chander Mandal,
03. Manoj Kumar S/o Sh. Ram Polisher 07.03.1995 1586/
Chander Shah Semiskilled
04. Hari Sharma
05. Sant Ram Sharma
06. Vinod Singh Rawat S/o Sh. Polisher 28.04.1995 1586/
Madho Singh Rawat Semiskilled
07. Devendra Singh Negi
08. Babu Ram S/o Sh. Ram Lal / Polisher 28.04.1995 1586/
Ram Legan Semiskilled
09. Bhardul S/o Sh. Girdhari Ram Polisher January 28.04.1995 1586/
Semiskilled 1991
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10. Sri Kant Mishra S/o Sh. Ram Polisher March 28.04.1995 1586/
Avadh Mishra Semiskilled 1988
11. Bishram S/o Sh. Sahwali Polisher March 28.04.1995 1586/
Semiskilled 1988
12. Dhan Raj S/o Sh. Mohan Ram Polisher 28.04.1995 1586/
Semiskilled
13. Mangal Singh S/o Sh. Ram Polisher February 28.04.1995 1586/
Avtar Semiskilled 1990
14. Lal Bihari S/o Sh. Ganga Polisher 28.04.1995 1586/
Prasad Semiskilled
15. Kishore Kumar
16. Suresh Pal Polisher March 1991 28.04.1995 1586/
Semiskilled
17. Raj Kishore S/o Sh. Gajadhar Polisher 1992 07.03.1995 1495/
Helper
18. Sham Raj Pal S/o Sh. Sham Polisher 1989 05.05.1995 1586/
Singh Rai Helper
19. Ram Chandra Polisher 1990 05.05.1995 1586/
Helper
20. Raju
21. Suresh Kumar Polisher 1992 05.05.1995 1919/
Skilled
22. Budhi Ram Polisher 1988 05.05.1995 1586/
Semiskilled
23. Rajesh Polisher May 1990 05.05.1995 1586/
Semiskilled
24. Dinanath S/o Sh. Ramdev Polisher 1989 05.05.1995 1495/
Verma Semiskilled
25. Muneshwar Carpenter 05.05.1995 2100/
26. Jai Prakash S/o Sh. Chandra Carpenter 1992 05.05.1995 1900/
Ram
27. Hridyanand Sharma Carpenter 1985 05.05.1995 1919/
28. Shambhu Sahrma
29. Porish Polisher 1987 05.05.1995 1586/
Semiskilled
30. Vindeshwar Sharma
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31. Ganga Lal Polisher 10.01.1991 07.03.1995 1919/
Skilled
32. Jai Prakash
33. Radha Mohan S/o Sh. Mutur Polisher 1993 07.03.1995 1495/
Ram Skilled
34. Vijay Kumar Polisher 1993 07.03.1995 1495/
Semiskilled
35. Jai Lal Polisher 1991 07.03.1995 1495/
Helper
36. Dhaneshwar Kumar S/o Sh. Polisher 2 years 07.03.1995 1495/
Biji Yadav Helper
37. Sriprasad S/o Sh. Chhote Lal Polisher 1992 07.03.1995 1495/
Helper
38. Mahesh Das S/o Sh. Satish Polisher May 1991 07.03.1995 1495/
Dass Helper
39. Ram Sewak
40. Ram Kripal Prasad Polisher 15.01.1993 07.03.1995 1495/
Helper
41. Vishwanath S/o Sh. Sati Ram Polisher 1993 07.03.1995 1495/
Helper
42. Narayan S/o Sh. Ramdhari Polisher 1992 07.03.1995 1495/
Helper
43. Prabhu Nath S/o Sh. Bansi Polisher 10.10.1990 07.03.1995 1586/
Ram Helper
44. Surender Gupta S/o Sh. Polisher 1993 07.03.1995 1495/
Jagannath Helper
45. Rakesh
46. Vijay Gupta S/o Sh. Ramdeo Polisher 1993 07.03.1995 1495/
Gupta Helper
(Note: Tabular details given in the statementofclaim have been rearranged to be
inconformity with the serial number of the workmen as mentioned in the list annexure
- A enclosed with the reference order.)
(ia) The management of M/s Wadhera Furniture A - 195 - 196 and A - 207,
Okhla, Phase - I, New Delhi has terminated the services of 46 workmen
arbitrarily from 25.05.1995.
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(ib) This arbitrary and unjustified termination was done without any prior
notice and without any permission from the Office of Assistant Labour
Commissioner as provided in Chapter VB of Industrial Disputes Act, 1947.
(ii) The company employs more than 100 workmen in any calender year.
(iii) On 07.03.1993 (sic) (to be correct 07.03.1995 vide Ex. WW1/7) all the
workmen numbering approximately 190, belonging to the company found that
the factory was closed without any prior notice and no workman was allowed to
go inside. On 08th March, labour officer Mr. K. L. Kanojia issued a letter
directing the management to reinstate all the workmen failing which
prosecution of the management for "lockout" would be initiated. Because of
this prompt action the management reinstated all the workers except 35
workmen.
(iv) That malice intention in terminating the services of these workmen is
revealed by following facts:
(a) Wadhera Furnitures, situated at A195 - 196 and A207 are involved in
furniture manufacturing and furnishing interior decorating of big houses,
hotels, offices etc. The company has mainly regular workers involving
Carpenters, Polishers, Helpers, Loaders etc. and also few contractual workers.
(b) While the volume of the work, the regular turnover of the company and
the resultant profits were very high but workers were paid meagerly. Workers
are not paid the minimum wages, provided wage slip, payment on wage
register, ESI, PF facilities and virtually there was nonimplementation of all
statutory labour laws for workers working for 8 - 10 years and they were
treated as daily wage earners.
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c) With this background, the workers organised themselves under Delhi
State Kamgar Union (Regd.) so that collectively they may be able to get
statutory benefits. Subsequently, following a complaint to A. L. C. from the
union following steps were taken:
(i) General Checking was done in January, 1995 which showed 194
workmen.
(ii) In February, in the presence of labour inspector payment to workmen
was made "on worker under protest". While the unskilled workmen
were paid the minimum wages but the semi skilled and skilled specially
were paid less than the minimum wages.
(v) In March, workmen decided to take the payment of earned wages of
February 1995 on wages register, weekly holidays and pay slip. It was
accordingly conveyed to management and also to the Office of the A. L. C. but
on 07th March when the workmen reported for duty they fraud (sic) (found?)
the gate was locked. Management arbitrarily and illegally had closed down the
factory. However, with the immediate intervention of the A. L. C. management
was forced to reinstate all workmen except 35 regular workmen and this
attitude proves that the management in retaliatory steps have used the "lockout"
to terrorise the workmen to break their unity and genuine demands.
(vi) Services of all the workmen have been terminated since then.
(vii) Subsequent events are as follows:
(*) On 19.05.1994 a letter was sent to A. L. C. (South) for providing salary
according to post.
(*) On 09.01.1995 a letter was sent to A. L. C. (South) for General
Checking in the factory.
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(*) On 12.01.1995 complaint was made by the union to A. L. C. (South)
stating non implementation of minimum wages in the factory and
demanding the reinstatement of five workers who were illegally
terminated by the management.
(*) On 13.01.1995 another letter demanding General Checking in the
factory was sent to A. L. C. (South).
(*) On 02.02.1995 letter was sent to A. L. C. by the union to direct the
management to provide appointment letter, pay slip and other facilities
and to give minimum wages to workers.
(*) On 07.02.1995 and 15.02.1995 letters were sent to the A. L. C. by the
union to pay the due wages to workers and to maintain record of all
workmen.
(*) On 24.02.1995 complaint was sent to A. L. C. stating non
implementation of the provisions of the Factory Act.
(*) On 07.03.1995 another complaint was made to the A. L. C. stating that
worker had been locked out in the factory by the management and
further in the complaint the demand of the restoration of duty without
condition and payment of minimum wages to the workmen by the
management was raised.
(*) On 13.03.1995 letter against the illegal retrenchment of 35 workmen and
nonpayment of minimum wages to about 120 workmen was sent to A.
L. C. (South). On 14.03.1995 complaint was made before the A. L. C.
against illegal retrenchment / lay off of 35 workers. On 22.03.1995
again a complaint was made to A. L. C. demanding the implementation
of the provisions of Factory Act and on the same date another complaint
seeking prosecution of the management M/s Wadhera Furniture for
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illegal retrenchment / lay off of 35 workmen under Chapter VB
section 25 Q of the Industrial Disputes Act, 1947 was sent to A. L. C.
(South).
(*) On 27.03.1995 a letter was sent to A. L. C. demanding the
implementation of minimum wages. On 28.03.1995 a letter was sent to
A. L. C. demanding the reinstatement of 35 workers who were illegally
retrenched / laid off by the management.
(*) On 29.03.1995 a letter was sent to A. L. C. stating the fresh illegal
recruitment of workers by the management and on the same day another
letter was sent demanding the payment of 20% bonus and it was made
before the Bonus Inspector. On 08.04.1995 a demand letter of
reinstating one workman Manoj who was illegally terminated was made
to the A. L. C.
(*) On 20.04.1995 letter was sent to A. L. C. for stopping contractual labour
practice.
(*) On 27.04.1995 letter for General Checking was sent to the A. L. C.
(*) On 28.04.1995 a demand letter for reinstatement of 12 workers who
were illegally retrenched was made to A. L. C.
(*) On 03.05.1995 again a letter for General Checking was sent to the A. L.
C.
(*) On 04.05.1995 a letter demanding the directions to management to give
proper written notice to give workers when they are to be sent on the
site was made to A. L. C. by union.
(*) On 05.05.1995 a demand letter for reinstatement of illegally retrenched
13 workers was made to A. L. C. by the union.
(*) On 08.05.1995 registered letter stating the duration and last drawn
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salary of retrenched workers was sent to the A. L. C. (South). On
02.08.1995 a letter for General Checking was sent to the A. L. C.
(South).
(*) On 10.05.1995 a complaint praying the initiation of proceedings for
prosecution of management under Section 25N, Chapter VB of
Industrial Disputes Act, 1947 against the management was trade (sic)
(made?).
(*) On 25.05.1995 demand letter for reinstatement of 46 workers was made
to A. L. C. (South) by union.
With these averments workmen have prayed for they may be reinstated
with full back wages, continuity of service alongwith all other benefits to
which workmen are entitled.
3. CASE OF MANAGEMENTS AS PLEADED IN WRITTEN
STATEMENTS OF DEFENCE.
SEPARATE WRITTEN STATEMENTS HAVE BEEN FILED BY
BOTH THE MANAGEMENTS.
Management no.1 in its WS has taken preliminary objections to the
effect that (i) this reference has been made against two managements.
Management no.1 is a company registered under the Companies Act and
management no.2 is a sole proprietorship concern and a separate legal entity.
The terms of reference does not specify which of the claimant is making a
claim against management no.1 or management no.2. The terms of reference
have been made mechanically and without application of mind and are liable to
be set aside. (ii) The terms of reference have been made by the Secretary
(Labour) who has no legal and valid delegation in his favour to refer the present
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dispute and, therefore, the present reference made by Secretary (Labour) is
liable to be dismissed on this ground alone.
FURTHER, management no.1 submitted that management no.1 is a
small establishment engaged in the business of interior construction on project
to project basis as and when the work is received on contract. There may be
occasions when more than one contract is in hand and there are also occasions
when no contract is there and, accordingly, management no.1 is keeping limited
number of workmen as its regular employees on rolls. However, as and when
the project is in hand the management no.1 takes work through petty
contractors or, on very urgent requirement, management no.1 takes an
individual or few persons on day to day contract on daily wager on temporary
basis. The employees so engaged are paid on day to day basis. When the work
of project is over, the employees are so informed accordingly by paying them
their full and final dues. The employees are never engaged on regular basis.
Some times the work is done on square feet basis. The employees so engaged
are paid on the basis of measurements and the employees who are so engaged
on daily wages are paid as per the minimum wages for that category. There is
no regular work with the management no.1 and, therefore, no regular
employees are kept. Management no.1 further pleaded that some of the
workers who have been working on casual or daily wages on temporary
assignment, though they were not entitled to, the management no.1 by way of
abundant caution provided them the amount equivalent to 15 days
compensation for each completed year of service and one month notice pay and
some of the employees so engaged on casual / temporary basis have accepted
full and final settlement and have signed the settlements.
Also, management no.1 pleaded that out of claimants most of the
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workers who have been working on casual or daily wager on temporary
assignment were sent letters alongwith the amount, even though they were not
entitled to, by abundant caution. However, in many of the cases, the letters
were received back unserved. This is without prejudice to the rights and
contentions of the management.
ON MERITS, management no.1 pleaded that none of the claimants as
per annexure - A was in the employment of the management no.1. The claim
of the claimants is wholly misconceived and the present proceedings are wholly
without jurisdiction. None of the claimants mentioned in annexure - A is
entitled to any relief from management no.1.
Further, management no.1 pleaded that management no.1 is a small
establishment engaged in the business of interior construction on project to
project basis as and when the work is received on contract. There may be
occasions when more than one contract is in hand and there are also occasions
when no contract is there and, accordingly, management no.1 is keeping limited
number of workmen as its regular employees on rolls. However, as and when
the project is in hand the management no.1 takes work through petty
contractors or, on very urgent requirement, management no.1 takes an
individual or few persons on day to day contract on daily wager on temporary
basis. The list (annexureA) annexed by the claimants is also misconceived and
liable to be rejected on the ground that the claimant had been working with the
management no.1 only on day to day basis when there is work with the
management no.1. As per management no.1, it never terminated the services of
46 workmen and the services of claimants may have been taken only for a
limited period on adhoc basis and then they left on their own after the work is
over. Subsequently, management no.1 pleaded that claimants have worked for a
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limited period on casual basis and they were paid accordingly by the
management no.1 and after that they have left their jobs on their own accord
after the work was over.
The question of termination of services of the claimants or taking any
permission from the Labour Department does not arise in present case. The
provisions of ChapterVB of the Industrial Disputes Act, 1947 are not
applicable in the present case. Management no.1 has denied the averment of
the workman to the effect that it employed more than hundred workmen in any
calender year as alleged.
Management also denied the averments made by workmen regarding
alleged lockout dated 07.03.1993 in toto. All the averments made by workmen
in para. 7 of statementofclaim regarding "malice intention" of the
management have been denied by management no.1 in toto. As per
management no.1 none of 35 employees were the regular employees of the
management no. 1 and alleged claimants have been writing letters to the labour
department with a view to put pressure on the management and extract money
from the management no.1. Management denied all the letters mentioned in
statementofclaim. Management no.1 denied the averment of the workman
that services of 46 workmen have been terminated arbitrarily against the
provisions of the Industrial Disputes Act, 1947.
At last management no.1 pleaded that claimants are not entitled to any
relief from management no.1. The workers have been engaged for a short
duration for a few days on casual wages. Claim of the claimants may be
dismissed with costs.
Management no.2 also took preliminary objections no. (i) and (ii) as
pleaded by management no.1. Management no.2 also submitted in terms of
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submissions made by management no.2. ON MERITS management no.2 took
stand similar to management no.1.
4. REJOINDER.
IN SEPARATE replications to the written statements of managements,
workmen denied the stand taken by managements and reiterated the averments
made in statementofclaim. In the replication to WS of the management no.1
workman pleaded that management do have sent letters alongwith the amount
but that amount was only to legalise the illegal act of termination. The
tendering of amount was not towards a settlement duly arose in the course of
discussion between the workman and the management but said act of the
management is only to conceal its malafide act and intention.
5. ISSUES
Vide order dated 08.05.2000 ld. predecessor of this Court framed the
following issue:
(i) As per terms of reference?
6. EVIDENCE.
Workman at serial no. 02, 03, 06, 08, 10, 11, 12, 13, 18, 33, 36, 37, 41,
42, 43 and 46 appeared in witness box as WW2 Panchu Gopal Mandal, WW3
Manoj Kumar, WW1 Vinod Singh, WW4 Babu Ram, WW12 Sri Kant
Mishra, WW5 Vishram (Bisram), WW17 Dhan Raj, WW6 Mangal Singh,
WW19 Sham Raj Pal, WW10 Radha Mohan, WW11 Dhaneshwar, WW16
Sri Prasad, WW8 Vishwanath, WW7 Narayan, WW9 Prabhu Nath and
WW13 Vijay Gupta respectively. It is noted that workmen at sl. no. 17, 38 and
44 examined themselves in chief WW15 Raj Kishore, WW14 Mahesh Das and
WW18 Surender Gupta but did not appear for their crossexamination.
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Workmen at Sr. No. 9, 14, 24 and 26 filed their affidavits but did not appear in
witness box to formally tender their affidavits as their examinationinchief and
suffer cross - examination. Other workmen who have signed the statementof
claim even did not file their affidavits.
Management no.1 examined MW1 Mr. Nawal Kishore. Management
no.2 examined MW Mr. Dalip Singh.
7. ARGUMENTS.
I have heard Ms. Poonam Kaushik, adv. for the workmen and Sh. Faiyaz
Hasan, adv. for the management. Ld. counsel for workmen relied upon case
laws reported as (i) Morinda Co - op. Sugar Mills Ltd. V/s Ram Kishan and
Ors. etc. AIR 1996 SC 332; (ii) U.P. State Road Transport Corporation V/s C.
P. Goswami 2013 LLR 1013; (iii) Bhavnagar Municipal Corporation V/s
Salimbhai Umarbhai Mansuri 2013 LLR 1042; (iv) The Associated Cement
Companies, Ltd. V/s Chaibasa Cement Works, Jhinkpani V/s Their Workmen
AIR 1960 SC 56; (v) Honorary Secretary, South Asia Mill Owner's Association
& Ors. V/s The Secretary, Coimbatore District Textile Workers' Union AIR
1962 SC 1221; (vi) State of Maharashtra & Anr. V/s Sarva Shramik Sangh,
Sangli & Ors., Civil Appeal No. 2565/06 (Date of Decision 21.10.2013)
(Supreme Court of India) and (vii) Amsal Chem Pvt. Ltd. V/s L. G. Prajapati
C/SCA/11815/2004 Gujarat High Court (Date of decision 22.01.2013). I have
gone through material available on judicial file very carefully.
8. My ISSUEWISE findings are as under:
ISSUE No. 1: As per terms of reference.
("Whether the services of workmen as per annexure A 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?")
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A. DECISION ON PRELIMINARY OBJECTIONS
At the outset, it is noted that no fault can be found to be in the ORDER
OF REFERENCE merely because it does not specify which of the claimant is
making a claim against management no.1 or management no.2. The act of
making a reference to the Labour Court is an administrative act & Secretary
(Labour) while performing such an act cannot adjudicate the disputes between
the parties on merits. The adjudication on facts / merits is to be made by the
Labour Court in exercise of its quasijudicial functions under the Industrial
Disputes Act, 1947. Also it is noted that reference in hand has been made by
Secretary (Labour) Govt. of N.C.T. of Delhi in exercise of his powers under
section 10(1) (c) and 12(5) of the INDUSTRIAL DISPUTES ACTS, 1947 read
with Govt. of India, Ministry of Labour Notification No.S11011/2/75 - DK
(IA) dated 14th April, 1975. Full bench of Hon'ble Delhi High Court in case law
reported as India Tourism Development Corporation Vs. Delhi Administration
and Ors. MANU/DE/0297/1982 has upheld the validity of this Notification.
Thus, reference has been made by Secretary (Labour) in due exercise of his
powers.
B. APPLICABILITY OF PROVISIONS OF SECTION 25N, CHAPTER
VB OF THE INDUSTRIAL DISPUTES ACT, 1947.
The TERMS OF REFERENCE in hand pertains to 46 workmen whose
services have been allegedly terminated arbitrarily on 25.05.1995. Notably
table attached with the statementofclaim as annexure A2 (reproduced herein
above in para.(i) of this award by arranging the details / data in the sequence of
workmen as given in annexure Areferred to in terms of reference) giving
service details of workmen mentions different dates of termination of services
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of workmen as 07.03.1995, 28.04.1995 and 05.05.1995. Be that as it may.
Workmen are alleging violation of the provisions of section 25N, Chapter VB
of the Industrial Disputes Act, 1947. As per section 25K(1), the provisions of
Chapter VB of the Industrial Disputes Act, 1947 shall apply to an 'industrial
establishment' (as defined under section 25L of the Industrial Disputes Act,
1947) (not being an establishment of a seasonal character or in which work is
performed only intermittently) in which not less than one hundred workmen
were employed on an average per working day for the preceding twelve months.
It is for the workmen to establish on judicial file that this requirement of
section 25K(1) of the Industrial Disputes Act, 1947 is satisfied before workmen
can seek protection / applicability of the provisions of section 25N of the
Industrial Disputes Act, 1947.
Workmen in the statementofclaim alleged that, "5. That the company
employes more than 100 workmen in any calender year". Managements replied
this para. in their respective written statements of defence as "5. Contents of
para.5 of the statementofclaim are wrong, baseless and denied. It is denied
that the company employ more than hundred workmen in any calender year as
alleged".
It is noted that even the averments made in para.5 of the statementof
claim as per their face / term value do not satisfy the requirements of section
25K(1) of the Industrial Disputes Act, 1947. Merely because General Checking
Report Ex.WW1/29A (dated 10.1.1995) contains details of 194 workers /
workmen does not necessarily mean that managements employed not less than
100 workmen on an average per working day for the preceding twelve months.
Documents relied upon by managements as Ex. MW1/2, Ex. MW1/3, Ex.
MW2/1 also do not suggest that managements employed not less than one
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hundred workmen on an average per working day for the preceding twelve
months. It is also important to note that in the crossexamination of MW1
Naval Kishore and MW2 Dalip Singh it has not even been suggested that
management (s) employed not less than one hundred workmen on an average
per working day for preceding twelve months. There is no other document on
judicial file which, at least, prima facies establishes that management(s)
employed not less than one hundred workmen on an average per working day
for preceding twelve months. Thus, it is held that workmen have failed to
establish on judicial file that provisions of section 25N, Chapter VB, Industrial
Disputes Act, 1947 are applicable to this case. Thus, this Court will proceed to
answer the reference keeping in view the provisions of Chapter VA of the
Industrial Disputes Act, 1947.
At this Juncture it is pertinent to note that Hon'ble Supreme Court of
India in case law reported as S. M. Nilajkar and Ors. Vs. Telecom District
Manager, Karnataka (2003) 4 SCC 27 with regard the provisions of section 2
(oo) (bb) of the Industrial Disputes Act, 1947 observed as under:
"13. The termination of service of a workman engaged in a scheme or
project may not amount to retrenchment within the meaning of sub
clause (bb) subject to the following conditions being satisfied:
(i) that the workman was employed in a project or scheme of
temporary duration;
(ii) the employment was on a contract, and not as a daily
wager simpliciter, which provided inter alia that the employment
shall come to an end on the expiry of the scheme or project;
(iii) the employment came to an end simultaneously with the
termination of the scheme or project and consistently with the terms
of the contract; and
(iv) the workman ought to have been apprised or made aware
of the abovesaid terms by the employer at the commencement of
employment.
14. The engagement of a workman as a dailywager does not by itself
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amount to putting the workman on notice that he was being engaged
in a scheme or project which was to last only for a particular length
of time or up to the occurrence of some event, and therefore, the
workman ought to know that his employment was shortlived. The
contract of employment consciously entered into by the workman with
the employer would result in a notice to the workman on the date of
the commencement of the employment itself that his employment was
shortlived and as per the terms of the contract the same was liable to
termination on the expiry of the contract and the scheme or project
coming to an end. The workman may not therefore complain that by
the act of the employer his employment was coming to an abrupt
termination. To exclude the termination of a scheme or project
employee from the definition of retrenchment it is for the employer to
prove the abovesaid ingredients so as to attract the applicability of
subclause (bb) abovesaid. In the case at hand, the respondent
employer has failed in alleging and proving the ingredients of sub clause (bb), as stated hereinabove. All that has been proved is that the appellants were engaged as casual workers or dailywagers in a project. For want of proof attracting applicability of subclause (bb), it has to be held that the termination of the services of the appellants amounted to retrenchment."
Also Hon'ble Supreme Court of India in L. Robert D' Souza (1982) 1 SCC 645 held that section 25F of the Industrial Disputes Act, 1947 is applicable to a daily rated worker.
C. CERTAIN OBSERVATIONS REGARDING PLEADINGS OF THE PARTIES.
The ORDER OF REFERENCE mentions two managements. Statement ofclaim also mentions / has been filed against two managements. Management no.1 is a company incorporated under the provisions of the Companies Act, 1956 and management no.2 is a sole proprietorship concern. Workmen have not pleaded as to, they were employed by / under which of the management(s) and which of the managements terminated the services of each Page 20 to 49 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 22.03.2014 Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06 individual workman. Workmen even did not plead as to how both the managements are related / interlinked with each other. It is important to note that workmen in the statementofclaim have not even pleaded that after the alleged termination of their services by the management(s), they even tried for alternate service. They have not also pleaded in the statementofclaim that they, despite efforts to get fresh job / service, are still unemployed. In such circumstances, workmen are not entitled to full back wages. Depositions in the affidavits, if any, in the absence of pleading in statementofclaim do not serve any purpose in as much as evidence without supporting pleadings is no evidence. EQUALLY, importantly it is pertinent to note that even the managements have filed their separate written statements of defence without specifically pleading as to which of the workmen was employed by which of the managements. Both the managements pleaded that the managements are keeping limited number of workmen as its regular employees on rolls. Both the managements, at the same time pleaded that, there is no regular work with the managements and therefore no regular employees are kept. Both the managements pleaded that services of claimants may have been taken only for a limited period on adhoc basis and then they left on their own after the work is over. At the same time, managements pleaded that claimants had been working with them only on day to day basis when there is work with the managements. Thus, it is observed that pleadings of both the parties are not specific and managements in their respective written statements of defence have not taken a consistent stand. As the facts suggest, stand of the managements is that though they availed the services of workmen / claimants, the claimants / workmen were not their regular employees. Also it is pertinent to note that, besides simply making an averment that, as and when the project is in hand the Page 21 to 49 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 22.03.2014 Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06 managements takes work through petty contractors, managements have not pleaded that services of the workmen / claimants were availed through contractors. Names / details of no contractor(s) has / have even been pleaded in the written statements of defence. If the managements want this Court to believe that managements engaged workmen / claimants through contractors, managements must have specifically made pleadings in this regard (i.e. which of the workmen / claimants was engaged through which contractors & duration of such engagement). Also managements must have examined the said alleged contractors to establish their stand on judicial file. Neither there are pleadings of the managements in this manner nor the said alleged contractors have been named / examined by managements. Thus, it is observed that managements directly availed the services of the workmen / claimants.
D. OBSERVATIONS REGARDING EVIDENCE LED BY BOTH THE MANAGEMENTS.
MW1 Naval Kishore in his evidence affidavit deposed that claimants were never employed by the management no.1 and there is no master servant relationship between the claimants and the management no.1. These depositions are not consistent with the averments made in the written statements of defence filed by managements. It is observed that for the existence of relationship of master and servant one necessarily need not be in regular employment of the management & such a relationship does exist between the employer and even the casual / adhoc / day to day workers keeping in view the extent of control and supervision exercised by the employer over the work and conduct of workers during the employment of the worker. In para.8 of his affidavit, MW1 Naval Kishore mentions names of the workmen who are not parties herein. The Page 22 to 49 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 22.03.2014 Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06 depositions made by MW1 Naval Kishore in paras. 10 & 11 of his evidence affidavit are also not consistent with the written statement of management no.1. Also MW1 Naval Kishore in his crossexamination deposed that, "..... I know the claimants of the present case. I know them because they were working on sites and I also used to go to the sites. I have not filed any legal record like attendance register and wages register etc. pertaining to these claimants prior to 1995 ......". MW1 Naval Kishore in his evidence affidavit deposed that, "..... The replying respondent no.1, did not receive the alleged demand notice dated, if any, does not create any right in favour of claimants....". Firstly above depositions are not specific. Secondly MW1 Naval Kishore, instead of denying the receipt of demand notice, in his crossexamination deposed that, "...I do not know whether the document Ex. WW1/33 had been received by the management no.1 or not......".
Also it is noted that MW1 Naval Kishore deposed that, "..... I do not know what had been stated in the WS filed by the management no.1 in the present case. I have not read the contents of my evidence from para. 1 to 7 of my evidence affidavit Ex. MW1/A.....". MW1 Naval Kishore further deposed that, ".... It is correct that in the year 1995 I was working with the management no.1 in the premises of A195196, Okhla Industrial Area PhaseI, New Delhi. I do not remember whether the labour inspector visited the premises of the management no.1 and conducted general checking....". This witness further deposed that, "I do not remember whether conciliation proceedings were initiated by the workmen in the present case. I do not know whether notices Ex. WW1/21 to WW1/27 were issued by the A.L.C. South to the management no.1 establishment. I do not know whether the labour inspector conducted a general checking on 10.01.1995 and he submitted his report Ex. WW1/29." In view of Page 23 to 49 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 22.03.2014 Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06 above observations it is observed depositions made by MW1 Naval Kishore are not of any / much help to the management no.1.
Even the depositions contained in the evidence affidavit of MW2 Dilip Singh are not consistent with the written statement of management no.2. However MW2 Dalip Singh in his crossexamination deposed that, "....... Both the Managements were taking the services of the polishers and painters. It is wrong to suggest that the Management used to appoint the polishers and painters Vol. The Management engaged polishers and painters when they get big contracts/projects. The workmen used to receive their letters from their relatives while they were working with the management.
The Management used to appoint workmen for the purpose of polish and paint. There was no system of marking the attendance of the workmen. Vol. The workmen were engaged through the contractor and they were kept on work / duty as long as the project was there. I do not remember whether there was any licence with the Management to take work from the workmen through contractor.....".
Both the managements in this case can be said to be intimately related to each other in as much as MW2 Dilip Singh in his crossexamination deposed that, "........ Management no.2 is engaged in the business of interior designs and the interior projects. It is correct that the Management no.1 is also engaged in the aforementioned same business. It is correct that both the Managements are engaged in the aforementioned business prior to my appointment with the management no.2. Ms. Sunita Vadehra is the proprietor of the Management no.2 and Sh. Deepak Vadehra is the Managing Director of the Management no.1 and they both are husband and wife..... There is a distance of a street between A195196 and A207. It is approximately 30 feet Page 24 to 49 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 22.03.2014 Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06 distance. It is correct that the premises no.A195196 is being opened from both the sides....... It is correct that the workmen who used to work in A195196 premises of the Management were also used to go for work in A207 premises of the Management on its asking Vol. As per the availability of the workmen ...... It is correct that the Managements in the present case are dealing in one and the same business...".
Also MW2 Dalip Singh also deposed that, ".... I know the workmen Mangal Singh, Dhaneshwar, Shrikant Mishra, Dhanraj and Prabhu Nath who are present today in the Court since they were working with the Management as polishers.................. No appointment letter was issued to the workmen in the present case....".
The depositions made by MW2 Dilip Singh in his evidence affidavit also are not of any / much help to the management no.2.
E. Annexure A referred to in the terms of reference mention 46 workmen. Out of these 46 workmen only 35 workmen signed / thumb impressed / filed the statementofclaim. Out of these 35 workmen only 19 workmen appeared in the witness box. Out of these 19 workmen three workmen namely workmen at serial no.17 (WW15) Raj Kishore, serial no. 38 (WW14) Mahesh Das and serial no. 44 (WW18) Surender Gupta did not offer themselves for their cross examination. Workmen who have not signed the statementofclaim, or, who have filed their affidavits only & did not at all appear in witness box, or, the workers who did not appear for their crossexamination are not entitled to any relief in their favour. Thus, now Court is to adjudicate upon the claims of 16 workmen / claimants only who have appeared in the witness box and also suffered crossexamination by the ld. counsel for managements. Court, thus, Page 25 to 49 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 22.03.2014 Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06 proceeds to decide the claims of these 16 workmen: SERIAL NO.2 PANCHU GOPAL MANDAL Workman at Serial No.2 Panchu Gopal Mandal appeared in witness box as WW2 Panchu Gopal Mandal and in his evidence affidavit deposed that he was working with management as Helper since 1986 till 07.03.1995 with his last drawn wages as Rs.1,495/.
In their written statements of defence managements did not plead that workman Panchu Gopal Mandal did not work / never worked with the managements. MWs also did not so specifically depose in their evidence affidavits. MW1 Naval Kishore in his crossexamination deposed that, "...... I know the claimants of the present case. I know them because they were working on sites and I also used to go to the sites. I have not filed any legal record like attendance register and wages register etc. pertaining to these claimants prior to 1995 .....".
WW2 Panchu Gopal Mandal in his crossexamination was made to depose that, ".... I worked with the Store of the mgt. as a Helper. I was not issued any appointment letter nor any identity card. I was also not issued any gate pass. I used to work in the factory itself. I used to enter the factory of the management through chowkidar .......". When management itself did not issue appointment letter / identity card, workman cannot be asked to produce the same. Post cards Ex. WW1/37 to Ex. WW1/40 shows presence of workman Panchu Gopal Mandal in the premises of the management. Preponderance of probabilities support the case of workman. There is no proof of any notice having been served upon workman or payment in lieu of notice or payment of retrenchment compensation to workman. Hence termination of his services is Page 26 to 49 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 22.03.2014 Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06 held to be illegal. In my considered opinion, in the totality of facts and circumstances of this case grant of lump sum compensation to the workman to the tune of Rs.1,40,000/ (Rupees One Lac Forty Thousand only) in lieu of reinstatement / loss on account of illegal termination of his services payable by managements, jointly and severally, to the workman would meet the ends of justice. Ordered accordingly.
SERIAL NO.3 MANOJ KUMAR Workman at Serial No.3 Manoj Kumar appeared in witness box as WW3 Manoj Kumar and in his evidence affidavit deposed that he was working with management as 'Polisher' since 1992 till 07.03.1995 and his last drawn wages were Rs.1,586/.
WW3 Manoj Kumar in his crossexamination deposed that he was working with management of M/s. Vadhera Furnitures at 195196, Okhla Phase I, New Delhi. He also deposed that Ex. WW1/39, Ex. WW1/40 and Ex. WW1/42 pertain to the gate pass when he worked with Hotel Park View where he was sent by Parmand, Vithori Pd. and Kali Charan. Ex. WW1/40 pertain to the period 24.12.1993 to 31.01.1994; Ex. WW1/39 for the period 05.08.1994 to 30.12.1994 and Ex.WW1/42 for the period 15.10.1994 to 30.10.1994. Ex. WW1/39 & 40 mentions name of management no.1 as contractor. Ex. WW1/42 mentions Contractor as Wadhera. WW3 Manoj Kumar deposed that he was sent to work at Hotel Park View by Parmanand, Vithori Pd. and Kali Charan. He also deposed that they also worked with him and used to get work done from him. Further, WW3 Manoj Kumar deposed that all the three used to prepare a list of work done where I was used to make payment by a person who belong to the management. He also deposed that he used to get his wages on 15 Page 27 to 49 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 22.03.2014 Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06 and 22nd day of every month on the basis of work done by him. He also deposed that his monthly salary was Rs.1500/ and he was not paid when he did not work. Above crossexamination does not help the management much in the absence of specific pleadings of management in this regard. Even if it is the case that workman was being paid on the basis of work done by him, it does not mean that relationship of employeremployee did not exist. Even such a piece rate worker falls with the definition of workman. Preponderance of probabilities support the case of workman. Workman in his crossexamination also deposed that, "These days I am living in my village where I do agriculture work. After my termination I shifted to my native village....". In my considered opinion, in the totality of facts and circumstances of this case grant of lump sum compensation to the workman to the tune of Rs.64,000/ (Rupees Sixty Four Thousand Only) in lieu of reinstatement / loss on account of illegal termination of his services payable by management no.1 to the workman would meet the ends of Justice. Ordered accordingly.
SERIAL NO.6 VINOD SINGH RAWAT Workman at Serial No. 6 Vinod Singh Rawat appeared in witness box as WW1 Vinod Singh Rawat and in his evidence affidavit he deposed that he worked with management as 'Polisher' since August 1990 till 28.04.1995 and his last drawn wages were Rs.1,586/.
WW1 Vinod Singh Rawat in his crossexamination deposed that, "..... I was working with M/s. Vedhera Furnitures Pvt. Ltd. I cannot say that I was not working with the mgt. No.2 M/s. Sunita Vadhera & Associates. Again said that I was working with Vadhera Furnitures Pvt. Ltd. Vol. both the mgt. were same and even their showroom was common. I do not have any documentary Page 28 to 49 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 22.03.2014 Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06 evidence to prove that I was working with mgt. Again said that he has got general checking report which indicates that he remained employed with mgt.....". General Checking Report supports the case of workman. WW1 Vinod Singh Rawat also deposed that, "........ It is wrong to suggest that I never worked with the mgt. and that I was employee of some contractor who used to make payment to me...". Management has not even named the contractor under whom workman was allegedly working. No such contractor has been examined by managements. The stand of the management that Ram Laxman, Vithori and A.P. Raman were the contractors has been denied by workman. Management's stand as regards workman being an employee of contractor is otherwise not believable by Court as already noted. Preponderance of probabilities support the case of workman. Also workman in his crossexamination deposed that, "..... I am unemployed these days. I live in my native village....". In my considered opinion in the totality of facts and circumstances of this case grant of lumpsum compensation to the workman the tune of Rs.96,000/ (Rupees Ninety Six Thousand Only) in lieu of reinstatement / loss on account of illegal termination of his services payable by management no.1 to the workman would meet the ends of Justice. Ordered accordingly.
SERIAL NO.8 BABU RAM Workman at Serial No.8 appeared in the witness box as WW4 Babu Ram and in his evidence affidavit deposed that he worked with management as 'Polisher' since March 1989 till 28.04.1995 and his last drawn wages were Rs. 1,586/.
WW4 Babu Ram in his crossexamination deposed that "I was working with both the mgt. which were the same. The mgt. was owned by one Mr. Page 29 to 49 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 22.03.2014 Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06 Deepak. I used to work in the factory. I also worked out of factory at the instance of mgt. I once worked at Banglore on behalf of the company. Many other workers were also working there. ....... Mr. Anand paid me monthly wages in cash I was getting Rs.1,300/ as monthly wages...... Mr. Anand Singh was not a manager. He used to make payment on behalf of mgt. It is wrong to suggest that I was getting Rs.1500/ as my wages.......". At one place it was suggested to this workman that he was getting salary of Rs.1500/ and at another place he has been made to depose that, "...... It is wrong that I never worked with the mgt. It is further wrong that I was working with contractor". The depositions that, "...... I never worked as polishman prior to my job with mgt....." do not in any manner affect the case of workman. Preponderance of probabilities support the case of workman. Workman in his crossexamination also deposed that, "..... Now days I get casual work of polisher. These days I am residing in Okhla Phase II. Most of the time I stay in my native Village.....". In my considered opinion, in the totality of the facts and circumstances of this case grant of lumpsum compensation to the workman to the tune of Rs.1,10,000/ (Rupees One Lac Ten Thousand Only) in lieu of reinstatement / loss on account of illegal termination of his services payable by managements jointly & severally to the workman would meet the ends of Justice. Ordered accordingly. SERIAL NO.10 SRIKANT MISHRA Workman at Serial No.10 Srikant Mishra appeared in the witness box as WW12 Srikant Mishra and in his evidence affidavit deposed that he was working with management as 'Polisher' since March 1988 and his last drawn wages were Rs.1,586/. In his crossexamination WW12 Srikant Mishra deposed that, "..... I was working in the Management of M/s. Wadhera Page 30 to 49 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 22.03.2014 Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06 Furnitures Private Limited and M/s. Sunita Wadhera Associates, in the year 199495 which was operating from 19596, but I do not know whether it belongs to Sh. Deepak Wadhera or Ms. Sunita Wadhera...... I used to work in the premises 19596 only and I did not go anywhere....". Also WW12 Srikant Mishra has been made to depose that, "........ I used to do the polishing work in the aforementioned premises. It is wrong to suggest that I used to work on daily work. Vol. I used to work on monthly basis. It is wrong to suggest that whenever the management no.1 got the work / job, then it used to call and provide the work to me....". Thus, admittedly workman worked with the management. Also WW12 Srikant Mishra deposed that, "...... Mr. Anand used to mark my attendance when I used to work with Management no.1 at the aforementioned premises. I used to come to Management in the morning at 8:30 a.m. and used to return back by 7:30 PM. I used to get Rs.1350/pm as the work done by me...". Preponderance of probabilities support the case of workman. In my considered opinion, in the totality of facts and circumstances of this case grant of lumpsum compensation to the workman to the tune of Rs. 1,20,000/ (Rupees One Lac Twenty Thousand only) in lieu of reinstatement / loss on account of illegal termination of his services, payable by management no.1 to the workman would meet the ends of Justice. Ordered accordingly. SERIAL NO.11 BISHRAM Workman at Serial No.11 Bishram appeared in witness box as WW5 Vishram (Bisram) and in his evidence affidavit deposed that he was working with management as Polisher since March 1988 till 28.04.1995 and his last drawn wages were Rs.1,585/.
In his crossexamination WW5 Vishram (Bisram) has been made to Page 31 to 49 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 22.03.2014 Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06 deposed that, "....During the last days of my employment I was working in the factory. which was situated at 195196, Okhla PhaseII, Delhi. Both themgt. were controled by one Mr. Deepak. We also workeed out side the factory at the site. As and when mgt got big order, they used to get the work done with the its working employee with the help of outsiders. The new engagement used to be over with the completion of work. Mr. Deepak did not supervise our work personally. One Anant Singh used to supervise our work. Who was the manager. All the polishman used to work in a group and the group leader also work with us. Mr. Anant Singh used to pay wages. I used to be paid on monthly wages....". WW5 also deposed that ".....It is wrong that I never worked with the company and that I worked with private contractor". The stand of management that workman worked with private contractor is not believable in the absence of details of the said private contractor and examination of such private contractor in Court in support of case of management. Preponderance of probabilities supports the case of workman. Also WW5 Vishram (Bishram) deposed that, ".....I get casual work these days....". In my considered opinion, in the totality of facts and circumstances of this case grant of lumpsum compensation to the workman to the tune of Rs.1,20,000/ (Rupees One Lac Twenty Thousand only) in lieu of reinstatement / loss on account of illegal termination of services of workman payable by management no.1 to the workman would meet the ends of Justice. Ordered accordingly.
SERIAL NO. 12 DHAN RAJ Workman at Serial Number 12 appeared in witness box as WW17 Dhan Raj and in his evidence affidavit deposed that he was working with management as 'Polisher' since January 1991 till 28.04.1995 and his last drawn wages were Rs.
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1586/.
In his cross examination WW17 Dhan Raj has been made to depose that, "... I was working with Management no.1 only. It is wrong to suggest that I was working with management no.1 on daily wages. I was doing work of a polisher........ It is wrong to suggest that I used to work with Management no.1 whenever the Management no.1 used to get the contracts..... It is wrong to suggest that I am deposing falsely or that Management no.1 used to engage my services when it had the work........ The attendance was marked by the person namely Sh. Dilip Singh who is present in the court today..... It is wrong to suggest that I was working on piece basis......". As per these depositions undisputedly management availed the services of the workman. Management is not consistent regarding its stand in as much as at one place it has been suggested to workman that he was working on daily wages and at another place it has been suggested that workman was working on piece basis. Management has not specifically brought on record relevant material to show the period for which it availed the services of workman. In a way, depositions of the workman to the effect that he worked with the management from January 1991 till 28.04.1995 has gone unrebutted. There is no challenge to the depositions of the workman in his cross examination that workman worked as a 'Polisher'. Preponderance of probabilities support the case of the workman. Further, in his cross examination workman has been made to depose that, ".... I am unemployed at present. I have four sons. I am residing at my native place at District Ballia U.P. and I have come to Delhi for about 15 - 20 days back. I went back to Ballia about three years back. I was working as labour in different places as and when I used to get the said work.......". In my considered opinion, in the totality of facts and circumstances of this case, grant of lump Page 33 to 49 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 22.03.2014 Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06 sum compensation to the workman to the tune of Rs.80,000/ (Rupees Eighty Thousand only) in lieu of reinstatement / loss on account of illegal termination of his services payable by management no.1 to the workman would meet the ends of justice. Ordered accordingly.
SERIAL NO. 13 MANGAL SINGH Workman at Serial Number 13 appeared in witness box as WW6 Mangal Singh and in his evidence affidavit deposed that he was working with management as 'Polisher' since February 1990 till 28.04.1995 and his last drawn wages were Rs.1586/.
In his cross examination WW6 Mangal Singh has been made to depose that, ".... I was employed with the mgt. M/s Badera Furniture and M/s Sunita Furnitures and are the same management because both the forms are controlled by the same person........ I do not have any documentary proof axcept inland letters. I was not issued any appointment letter by mgt. It is wrong to suggest that I was not employee of mgt. .......... Before the joining the mgt. I also worked as a polishman in some other firms. It is wrong that mgt. sent me to work at Park Royal Hotel. It is wrong that as and when mgt. received the orders, my services are hired through contractor. I used to attend mgt. at 8.00 a.m. till 5 p.m. The mgt. used to mark my attendance in register. I worked with the mgt. for about 5 / 6 years. Mr. Anand Singh used to take my attendance. It is wrong that when there was no order with the mgt., the mgt. did not hire my services. I did not work on piece rate basis..... I was not working with the mgt. as daily wager. I can not say if most of the workman received their full and final account with the mgt...... Mr. Roshan Lal and Girdhari Lal used to supervise my work were foremen...... It is wrong that I was Page 34 to 49 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 22.03.2014 Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06 paid my wages fortnightly. It is wrong that I was not paid anything whenever no work with the mgt. It is wrong that I used to be paid for days which I worked. It is wrong that I never worked for a complete month. It is wrong that contractor used to maintain the attendance register of the workman.....". The stand of management that it availed the services of workman through contractor is not worth credence for a judicial mind in the absence of details of such contractor and examination of such contractor in the Court to support the version of the management. Undisputedly management availed the services of the workman and did not specifically plead / led evidence regarding the duration of such employment of the workman. Preponderance of probabilities support the case of the workman. In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the workman to the tune of Rs. 96,000/ ( Rupees Ninety Six Thousand only) in lieu of reinstatement / loss on account of illegal termination of his services payable by managements jointly and severally to the workman would meet the ends of justice. Ordered accordingly.
SERIAL NO. 18 SHAM RAJ PAL Workman at Serial Number 18 appeared in witness box as WW19 Sham Raj Pal and in his evidence affidavit deposed that he was working with management as 'Polisher' since 1989 till 05.05.1995 and his last drawn wages were Rs.1586/.
In his cross examination WW19 Sham Raj Pal has been made to depose that, "...... I was working with Management no.1 M/s. Vadhera Furnitures (P) Ltd. and I was doing polishing work..... It is wrong to suggest that I was working with Management no.1 M/s Vadhera Furnitures (P) Ltd. as daily wager or item Page 35 to 49 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 22.03.2014 Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06 wise. It is wrong to suggest that whenever the Management no.1 M/s Vadhera Furnitures (P) Ltd. used to get the work I was being called as a Helper for polishing. When I had join M/s Vadhera Furnitures (P) Ltd., I did not know polishing work. Vol. but I had work for six years with Management no.1 M/s Vadhera Furnitures (P) Ltd. as Helper for polishing........ It is wrong to suggest that I was getting my wages from Management no.1 M/s Vadhera Furnitures (P) Ltd. after every 15 days. Vol I was getting my salary / wages on monthly wages. It is wrong to suggest that I used to work for a contractor......... I joined the Management no.1 M/s Vadhera Furnitures (P) Ltd. in year 1989. I did not work with the Management no.2 M/s Sunita Vadhera & Associates ........ It is wrong to suggest that Management no.1 M/s Vadhera Furnitures (P) Ltd. never terminated my services at any point of time......". Workman has maintained consistency even during his cross examination regarding, interalia, the year of his joining with management no.1. It has been suggested to this witness that he was getting wages from the management no.1 after every 15 days. Stand of the management that workman used to work for a contractor cannot be believed in the absence of details / examination of such contractor in Court. Preponderance of probabilities support the case of the workman. Further workman in his cross examination deposed that after the year of 1995 - 96, I used to work with some other contractors. In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the workman to the tune of Rs.1,10,000/ (Rupees One Lac Ten Thousand only) in lieu of reinstatement / loss on account of illegal termination of his services payable by management no.1 to the workman would meet the ends of justice. Ordered accordingly.
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SERIAL NO. 33 RADHA MOHAN
Workman at Serial Number 33 appeared in witness box as WW10 Radha Mohan and in his evidence affidavit deposed that he was working with management as 'Polisher' since 1993 till 07.03.1995 and his last drawn wages were Rs.1495/. In his cross examination WW10 Radha Mohan has been made to depose that, "....... I have come to work with present Management in the year 1990. I have worked with the Management no.1 i.e. Deepak Vadehra. It is wrong to suggest that I had worked with the contractor when I was working with the Management no.1. It is wrong to suggest that I was working on contract basis. I used to work with the Management no.2 also. It is wrong to suggest that I was working with Management as and when the Management used to get the contacts...... I used to polish counters, chairs, sofas, beds etc. I had worked for Management no.1 till the year 1995.... I used to go to A 195 and 196, Okhla Industrial Area at 9.00 am and attendance was marked by Mr. Anand when I used to leave the factory of management no.1, at that time also attendance used to be marked at that time also. Shrikant, Prabhu Nath, Sriprasadand Kali Charan were not my supervisors but were coemployees of Management with me. I used to get monthly salary from the Management. When I joined the Management I was getting Rs.1800/ p.m. as salary. In the year 1995, I was getting Rs.2200/. It is wrong to suggest that I was getting Rs. 2200/ as salary but I was getting the money on item / work basis. It is wrong to suggest that I was getting salary on fortnightly basis...... From the year 1990 I was casual with the Management no.1. but from 1993 there was an agreement with Management. But I had not signed any agreement. My last drawn wages was Rs.1495/. It is wrong to suggest that I was working on contract basis with the Management.....". Undisputedly, Management availed the services of the Page 37 to 49 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 22.03.2014 Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06 workman. However, stand of the management as regards manner of employment of workman by the management is not consistent in as much as it is taking the stand that (i) that workman was working with contractor when workman was working with management no.1; (ii) workman was working with management as and when management used to get contracts and (iii) workman was working on contracts basis with the Management. Management has not at all pleaded about the period for which it availed the services of the workman. Inland letters Ex.WW9/1 to Ex.WW9/11 also show the presence of the workman at the working place of the management. Preponderance of probabilities support the case of the workman. Further workman in his cross examination deposed that, "..... I am unemployed. I used to bring wheat and rice from my native place and sometimes I used to work also whenever I used to get the work.....". In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the workman to the tune of Rs.48,000/ (Rupees Forty Eight Thousand only) in lieu of reinstatement / loss on account of illegal termination of his services payable by managements jointly and severally to the workman would meet the ends of justice. Ordered accordingly.
SERIAL NO. 36 DHANESHWAR KUMAR Workman at Serial Number 36 appeared in witness box as WW11 Dhaneshwar Kumar and in his evidence affidavit deposed that he was working with management as 'Polisher' since 1993 till 07.03.1995 and his last drawn wages were Rs.1495/.
In his cross examination WW11 Dhaneshwar Kumar has been made to depose that, "...... I used to work with Management no.1 at Okhla. I was not working Page 38 to 49 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 22.03.2014 Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06 with M/s Sunita Vadera. I was doing the wooden polishing. I learned the job only in Vadera Furniture. I joined the Vadera Furniture in 1991 at the age of 20 years approximately. I was doing work mainly in the factory.... It is wrong to suggest that I was working under the Contractor in Vadera Furniture. I did not get any pass or any letter of appointment etc. when I was working with Management no.1. I do not know who is management No.2 in my claim. I used to reached at the factory at 8.00 am to till 5.00 p.m. Attendance was marked on a piece of paper by Mr. Anand who is present in the court today. I had worked till 1995...... It is wrong to suggest that I was not working on permanent basis or was working on daily wage basis or depending on as and when required..... It is wrong to suggest that I was being paid after 15 days on 7 and 22nd of the month. I used to get my salary 7 to 10 every month. It is wrong to suggest that some contractor was supervising my job. The work was being checked by company employee namely Batoi and Kali Charan. Attendance sheets were being by Mr. Anand...... It is wrong to suggest that I was a daily wager with the Management no.1.....It is wrong to suggest that I joined some contractors and not the Managements....... It is wrong to suggest that I was getting money from Management no.1 fortnightly for the job I executed during contract.......". Undisputedly, management availed the services of the workman. Stand of the management is not consistent. Credit of the workman has remained unshaken. Preponderance of probabilities support the case of the workman. Further workman in his cross examination deposed that, "..... I am unemployed at present. Vol. I do the job in summer season......". In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the workman to the tune of Rs.48,000/ (Rupees Forty Eight Thousand only) in lieu of reinstatement / loss on account of illegal Page 39 to 49 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 22.03.2014 Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06 termination of his services payable by management no.1. to the workman would meet the ends of justice. Ordered accordingly.
SERIAL NO. 37 SRIPRASAD Workman at Serial Number 37 appeared in witness box as WW16 Sriprasad and in his evidence affidavit deposed that he was working with management as 'Polisher' since 1992 till 07.03.1995 and his last drawn wages were Rs.1495/. In his cross examination WW16 Sriprasad has been made to depose that, "...... I used to work with Vadehra Management. I know the Vadehra Furniture but I do not know about the other Management....... I had joined the Management in April 1993. I did not work prior to joining the Management..... It is wrong to suggest that I was getting money fortnightly. (Vol. I was getting money on monthly basis.) .... I have worked for the Management till 07.03.1994. I was getting Rs.1495/p.m. from the Management......I used to work with Management no.2 also. It is wrong to suggest that I was working with the Management as and when the Management used to get the contacts...... I used to polish counters, chairs, sofas, beds etc. I had worked for Management no.1 till the year 1995...... I used to go to A195 and 196, Okhla Industrial Area at 9.00 a.m. and attendance was marked by Mr. Anand. I used to leave the factory of the Management no.1, at that time also attendance used to be marked at that time also. ...... It is wrong to suggest that I was getting Rs.2200/ as salary but I was getting the money on item / work basis. It is wrong to suggest that I was getting salary on fortnightly basis..... It is wrong to suggest that I was working on contract basis with the Management......". Undisputedly, management availed the services of the workman. Management has not disclosed the period for which it availed the services of the workman.
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Preponderance of probabilities support the case of the workman. Further,
workman in his cross examination deposed that, "..... I am working in Gurgaon. I used to get Rs.100/ on an average basis as and when I got the work. I was working in Gurgaon from last one and half month when I came from my native place where I was from last four months..... I have two children and wife who all are staying at my native place. In every month I use to send money to my native place for my wife and children whatsoever I save from my earnings......". In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the workman to the tune of Rs.64,000/ (Rupees Sixty Four Thousand only) in lieu of reinstatement / loss on account of illegal termination of his services payable by managements jointly and severally to the workman would meet the ends of justice. Ordered accordingly.
SERIAL NO. 41 VISHWANATH Workman at Serial Number 41 appeared in witness box as WW8 Vishwanath and in his evidence affidavit deposed that he was working with management as 'Polisher' since 1993 till 07.03.1995 and his last drawn wages were Rs.1495/. In his cross examination WW8 Vishwanath has been made to depose that, "..... I was working with the Management since the year 1992 - 93. I worked with the company about 3 and half years. I was drawing salary of Rs.1356/ per month. I was getting Rs.1450/ when I left the job.... I was working with Management no.1. I was not workman with Sunita Wadhera. I have a pass but I do not know whether the same is on record or not. I was doing the polish work.... It is correct that I had gone to hotel 'Park Royal' for job under the Management after the management got contract of work there. It is correct to Page 41 to 49 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 22.03.2014 Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06 suggest that I was working with Wadhera Furniture through contractor. I used to mark attendance in the attendance register. I used to reach Wadhera Furniture at 8.30 to 9.00 AM. I used to work there for 8 to 12 hours after sometime there was over time also. I started working with Wadhera Furniture on 1993 and worked till 07.03.1995. It is incorrect to suggest that Management used to engaged my services only when it has the work with it. The attendance was marked by the person whose present in the court today, he was manager at that time, but I do not remember his name due to lapse of time. It is incorrect to suggest that I was working on piece basis. It is incorrect to suggest that I was working on daily wage worker. Vol. I was getting my salary every month. It is incorrect to suggest that I was getting the salary two times months on 7 th of every month and then on 22nd of every month. Vol. some time I used to get salary on or before 7th howsoever I was in need could get advance payment. It is correct that Mr. Bhuti was senior and used to supervise our work. It is incorrect to suggest that we used to get pay ever fortnightly. It is incorrect to suggest that our attendance register being kept by contractor..... It is incorrect to suggest that I was not getting any fix salary from the management amounting to Rs.1495/..... It is wrong to suggest that I have worked with the contractor. ......". It is alright that workman in his cross examination initially deposed that he was working with Wadhera Furniture through contractor but subsequently he also denied the suggestion that he has worked with the contractor. In fact, workman has not been cross examined exhaustively on the stand of the management that his services were engaged by the management through contractor. It has also been suggested to the workman that workman worked on piece basis. Also it has been suggested to him that workman was working on daily wage worker. Further, it has been suggested to him that Page 42 to 49 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 22.03.2014 Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06 workman was getting salary two times on 7th and 22nd of every month. It has also been suggested to the workman that Mr Bhuti was senior and used to supervise the work. It has not been suggested to him as to through which contractor management availed the services of the workman. Half hearted admission of the workman that he worked with Wadhera Furniture through contractor does not benefit the workman in any manner. Preponderance of probabilities support the case of the workman. Further, workman in his cross examination deposed that, ".... I am not working anywhere permanently. I am living in Delhi. I have four children, my wife and parents to support who are living in my village.....". In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the workman to the tune of Rs.48,000/ (Rupees Forty Eight Thousand only) in lieu of reinstatement / loss on account of illegal termination of his services payable by management no.1. to the workman would meet the ends of justice. Ordered accordingly.
SERIAL NO. 42 NARAYAN Workman at Serial Number 42 appeared in witness box as WW7 Narayan and in his evidence affidavit deposed that he was working with management as 'Polisher' since 1992 till 07.03.1995 and his last drawn wages were Rs.1495/. In his cross examination WW7 Narayan has been made to depose that, ".... I worked with the M/s Vadera Furniture Pvt. Ltd. I also worked with M/s Sunita Vadera and Associates. I have no documentary proof to show that I was employed with above said management. I was not issued any appointment letter by the management. It is wrong to suggest that salary was not given by the management. I do not remember how much salary I was getting from the Page 43 to 49 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 22.03.2014 Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06 management. I have no documentary proof to show that I was getting alleged salary from the management. I was working as a polisher with the management...... It is wrong to suggest that management has engaged to work at park Royal Hotel. It ias wrong to suggest that my engagement was over after the work was over at Park Hotel. It is wrong to suggest that when any order used to come to management then only work was assign to me. It is wrong to suggest that there was no work with the management.... It is wrong to suggest that management execute the order by engaging contractors. It is wrong to suggest that I was working with contractor. It is correct that polishing work was done by item wise. It is correct that I was paid item wise. It is wrong to suggest that it was paid according to square feet area. It is wrong to suggest that contractor raised their bills and paid according to the bills. I used to come to attend the duty at 8 a.m. And use to go home at 8 p.m. It is wrong to suggest that contractor supervise my work. It is wrong to suggest that payment was made by contractor. Mr. Anand used to make payment. It is wrong to suggest that I used to do work itemwise. It is wrong to suggest that Ram Laxman, Bitori and A. P. Rahman used to supervise my work. It is wrong to suggest that above three persons are contractors. It is wrong to suggest that I did not work throughout the month. The register is maintained by management. It is wrong to suggest that I leave the job myself and gone to my native place. I do not receive daily Pager. I worked for both the managements. ....". No consistency of stand has been maintained by the management in the course of cross examination of workman. Undisputedly, management availed the services of the workman. Stand of the management that it availed the services of the workman through contractors in the facts and circumstances of this case does not call for credence from the judicial mind. Preponderance of Page 44 to 49 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 22.03.2014 Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06 probabilities support the case of the workman. Further, workman in his cross examination deposed that, ".... I was not doing any work after the management stopped giving work to me. I am married and having three children. I am working only when I get certain work. I spent Rs.1000 / 1200 per month for one person......". In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the workman to the tune of Rs.64,000/ (Rupees Sixty Four Thousand only) in lieu of reinstatement / loss on account of illegal termination of his services payable by managements jointly and severally to the workman would meet the ends of justice. Ordered accordingly.
SERIAL NO. 43 PRABHU NATH Workman at Serial Number 43 appeared in witness box as WW9 Prabhu Nath and in his evidence affidavit deposed that he was working with management as 'Polisher' since 10.10.1990 till 07.03.1995 and his last drawn wages were Rs. 1586/. In his cross examination WW9 Prabhu Nath has been made to depose that, "I was working with both the managements in the same premises. It is correct that the management no.2 was operating from A207, Okhla Industrial Area, Phase - I, New Delhi. Vol. Both premises A195196 Okhla Industrial Area Phase - I, New Delhi and A207, Okhla Industrial Area, PhaseI, New Delhi are situated in same Gali in front of each other........... I was doing the job of polishing the furniture since 1990. I was 22 - 23 years old at the time when I started work with the management....... I had gone to hotel 'Park Royal' for one and a half month for job under the management after the management got contract of the work there. It is incorrect to suggest that I was working with Wadhera furniture through contractor. It is incorrect to suggest that we used to Page 45 to 49 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 22.03.2014 Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06 work with Wadhere Furniture only when it got big contract. I did not get any pass or appointment letter from the Wadhera Furniture. Ordinarily in one day even one chair could not be polished completely..... It is incorrect to suggest that the contractor was maintaining the register of our work. Our duty starts from 8.A.M........ The management has terminated my services on 7th March, 1995. After I have not got any regular work........ It is wrong to suggest that I was not getting salary on the monthly basis. It is incorrect to suggest that I was getting the salary fortnightly. It is incorrect to suggest that I was getting the salary twice once on 7th of every month and 22nd of every month. Vol. I used to get my salary only once i.e. 7th of every month. My last drawn wages was Rs.1280/. I was getting Rs.776/ at the time of joining. It is correct that as per Ex.WW1/28 and Ex.WW1/28A (which are general checking reports), I used to get payment. It is incorrect to suggest that my work was supervised by the contractor. It is incorrect to suggest that the payment was done by the contractor to me. It is incorrect to suggest that Ram Lakah and Vitori used to supervise our work. Vol. They were also working with us. It is incorrect to suggest that I used to get my payment only when there was work with the company........ I used to work till 4.30PM we used not to signed any register. Vol. Our attendance was marked by the management itself. It is incorrect to suggest that I was not working with the management no.1.......". Admittedly, management availed the services of the workman. Stand of the management is not consistent. Stand of the management regarding its availing the services of the workman through contractor is not worth for judicial credence in the absence of details / examination of alleged contractor. Preponderance of probabilities support the case of the workman. Further, workman in his cross examination deposed that, ".... I am not working anywhere since four five days.
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Vol. I get a job for one week in a month....... I have two children and wife and parents to support. I am living at Sehdula Jab.......". In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the workman to the tune of Rs.96,000/ (Rupees Ninety Six Thousand only) in lieu of reinstatement / loss on account of illegal termination of his services payable by managements jointly and severally to the workman would meet the ends of justice. Ordered accordingly.
SERIAL NO. 46 VIJAY GUPTA Workman at Serial Number 46 appeared in witness box as WW13 Vijay Gupta and in his evidence affidavit deposed that he was working with management as 'Polisher' since 1993 till 07.03.1995 and his last drawn wages were Rs.1495/. In his cross examination WW13 Vijay Gupta has been made to depose that, "..... I used to worked with Deepak Wadhera. The Deepak Wadhera was operating from A195196 Okhla Industrial Area, Phase1, New Delhi. I was 17 years old when I started worked with management no.1........ It is incorrect to suggest that management engaged my services only when it used to get the work. I have never worked in Hotel Park. It is incorrect to suggest that I was working with Wadhera furniture through contractor. It is incorrect to suggest that I used to work as and when management got the work...... I used to go to the factory of the management at 9.00 AM. I used not to sign any document or any register after reaching the factory. It is incorrect to suggest that the register was being maintained by the contractor. Vol. It was being maintained by the management....... It is incorrect to suggest that I was getting payment of Rs.1350/ per month. The management has terminated my services on 7th March, 1995...... After that I have not got any regular work. It is wrong to Page 47 to 49 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 22.03.2014 Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06 suggest that I was not getting salary on the monthly basis. It is incorrect to suggest that I was getting the salary fortnightly. It is incorrect to suggest that I was getting the salary twice once on 7th of every month and 22nd of every month. Vol. I used to get my salary only once i.e. 7 th of every month. It is correct that as per Ex.WW1/28 and Ex.WW1/28A are general checking reports. I used to get payment on the basis of General Checking reports. It is incorrect to suggest that my work was supervised by the contractor. It is incorrect to suggest that the payment was done by the contractor to me. It is incorrect to suggest that Ram Lakah and Vitori used to supervise our work. Vol. They were also working with us. It is incorrect to suggest that I used to get my payment only when there was work in the company. It is incorrect to suggest that the attendance register was being maintained by the management. I used to work till 4.30 PM we used not to signed any register. Vol. Our attendance was marked by the management itself. It is incorrect to suggest that I was not working with the management no.1. It is incorrect to suggest that I am deposing falsely......". Admittedly, management availed the services of the workman. Stand of the management is not consistent. Stand of the management regarding its availing the services of the workman through contractor is not worth for judicial credence in the absence of details / examination of alleged contractor. Preponderance of probabilities support the case of the workman. Further, workman in his cross examination deposed that, ".... Today I have come from my village. I was at village from last two months. In my village I used to work as Beldar as and when I got the work...... I have three children and my wife and parents who are living in village.....". In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the workman to the tune of Rs.48,000/ (Rupees Page 48 to 49 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 22.03.2014 Chalittar & Ors. Vs. M/s. Wadhera Furniture Pvt. Ltd. & Anr. ID No. 74/06 Forty Eight Thousand only) in lieu of reinstatement / loss on account of illegal termination of his services payable by management no.1. to the workman would meet the ends of justice. Ordered accordingly.
8 A. If the abovesaid award amount is not paid to the workman / workmen within one month of the publication of award, workman / workmen shall be entitled to interest on the award amount @ 9% per annum from the date of the award till its payment by the management(s).
9. Each of the abovesaid workmen who have been granted lump sum compensation as above by this Court are also held to be entitled to receive a sum of Rs.20,000/ (Rupees Twenty Thousand only) (each) from the management as cost of litigation.
10. Reference is answered accordingly.
11. A copy of the award be sent to the Office of the Deputy Labour Commissioner (District West) for further necessary action.
12. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 22.03.2014
(ANAND SWAROOP AGGARWAL)
POLCXI, Karkardooma Courts, Delhi
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