Delhi District Court
Abhishek Kumar S/O. Sh. Bihari Singh vs Changed To: M/S. Bala Ji Offset on 16 January, 2015
Abhishek Kumar Vs. M/s. Balaji Offset DID No. 130/10
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI:
KARKARDOOMA COURTS: DELHI
DIRECT INDUSTRIAL DISPUTE (DID No. 130/10)
UNIQUE CASE ID No. 02402C0108042010
In the matter of:
Abhishek Kumar s/o. Sh. Bihari Singh
R/o. RZ14/231, West Sagar Pur,
JBlock, New Delhi46.
Through: Central Labour Union (Regd.)
Smt. Sonia Gandhi Camp,
B254, Narayana Industrial Area,
PhaseI, New Delhi. ....Workman / Claimant
Vs.
M/s. Balaji Offset
(For its constitution refer to para. no.7 of this award)
J6, Udyog Nagar, Peeragarhi,
New Delhi 110041.
Changed to: M/s. Bala Ji Offset
E219, Sector - 3, DSIIDC Industrial Area,
Bawana, Delhi - 110039
(vide application of workman moved on 25.09.2014)
.....Management
Date of institution : 15.04.2010
Date of reserving for award : 22.12.2014
Date of award : 16.01.2015
AWARD
1.CASE AS PLEADED BY WORKMAN IN THE STATEMENT OF CLAIM FILED ON 15.04.2010 u/s. 10(4A) OF THE INDUSTRIAL DISPUTES ACT, 1947.
(i) Workman was working with management since last one year as a permanent employee on the post of 'INKMAN' and his last drawn salary was Rs.3500/ per month.
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Workman during his service tenure did not give any opportunity to management to have any complaint against him.
(ii) Management was not providing labour facilities available to workman under the labour laws such as appointment letter, attendance card, pay slip, identity card, govt. holidays, ESI, PF, overtime charges, increments in salary and bonus etc., which were being orally demanded by workman from time to time and on account of such demands raised by workman, management used to be annoyed ('naraz') with workman.
(iii) As workman was making demands for labour facilities available under the labour laws, management terminated the services of workman malafidely on 28.07.2009 without any reason and prior notice. Management also did not pay salary of workman for the months of June and July 2009 at the time of terminating the services of workman.
(iv) Workman through union made a written complaint to the labour office on 31.07.2009. Labour Inspector alongwith workman visited the establishment of management and discussed with management, Mr. Sumit, the matters regarding reinstatement of workman in service and payment of arrears of salary to workman but management flatly refused to reinstate the workman and to pay arrears of salary to workman. Labour Inspector called the management alongwith records in the labour office but in the presence of Labour Inspector management neither reinstated the workman in service nor produced any record concerning the workman.
(v) Workman sent a demand notice dated 06.08.2009 to management through currier. Despite the receipt of the demand notice, management neither reinstated the workman nor replied the demand notice.
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(vi) Management prior to terminating the services of workman neither served any
chargesheet nor conducted any domestic enquiry etc. Also management, at the time of terminating services of workman, neither gave any written notice nor paid notice pay/service compensation/overtime charges/money in lieu of leaves/earned salary/other legal dues. The act of management in terminating the services of workman on 28.07.2009 is absolutely illegal/unjustified and is in violation of provisions of section 25F of the Industrial Disputes Act, 1947.
(vii) Workman is completely unemployed since the date (i.e. 28.07.2009) of illegal termination of his services by management. Despite much efforts made by workman management did not reinstate the workman; also workman did not get alternative service despite endless efforts made by him. Workman is facing financial crises on account of his being unemployed and, also, workman is facing problem in maintaining ('palan poshan') his family for which management is responsible.
With these averments workman prayed for an award in his favour and against the management directing the management to reinstate the workman in service with management with full back wages, continuity of service and all labour facilities alongwith litigation expenses.
2. STAND TAKEN BY MANAGEMENT IN THE WRITTEN STATEMENT OF DEFENCE Management in the WS denied the case as pleaded by workman in statement of claim in toto. Management pleaded that claimant never worked with management and, hence, section 25F of the Industrial Disputes Act, 1947 has no application in this case. As per management, claimant preferred conciliation proceedings before Deputy Labour Commissioner, Karampura, which were eventually withdrawn by claimant on 26.10.2009 Page 3 to 19 (ANAND SWAROOP AGGARWAL) POLC - XI: KKD:DELHI/16.01.2015 Abhishek Kumar Vs. M/s. Balaji Offset DID No. 130/10 as the same was meritless and bogus. At last management prayed that statement of claim preferred by claimant be dismissed with heavy costs.
3. REJOINDER In the rejoinder, workman denied the stand taken by management in its WS and reaffirmed the averments made in statement of claim.
4. ISSUES Vide order dated 26.11.2010 ld. predecessor of this court frame the following issues :
(i) Whether there is a relationship of employer and the employee between the claimant and the Management? OPM
(ii) Whether the services of the workman have been terminated illegally and / or unjustifiably by the Management?OPW
(iii) Relief, if any.
5. EVIDENCE Workman appeared in witness box as WW1 Abhishek Kumar. Workman relied upon documents namely Ex.WW1/1 Compliant (dated 31.07.2009) made by workman (through union) alongwith other workmen to Asstt. Labour Commissioner; Ex.WW1/1A Report (dated 24.05.2010) made by labour Inspector Deepak Kumar, who appeared in the witness box as WW2 Deepak Kumar; Ex.WW1/2 Demand notice (dated 06.08.2009) sent by workman (through union) alongwith another workman namely Mr. Indresh Singh; Ex. WW1/3 Courier receipt (dated 06.08.2009) and Ex.WW1/4 Attendance Card for the month of July 2009. Workman also examined WW2 Mr. Deepak Kumar, Labour Inspector. WE was closed on 23.11.2012 by Mr. Rajesh Khanna ARW.
Management examined MW1 Mr. Deepak Aggarwal, partner of the management Page 4 to 19 (ANAND SWAROOP AGGARWAL) POLC - XI: KKD:DELHI/16.01.2015 Abhishek Kumar Vs. M/s. Balaji Offset DID No. 130/10 and relied upon documents namely Ex.MW1/1 Muster Roll (Note: Wrongly mentioned in affidavit Ex.MW1/A of MW1 Mr. Deepak Aggarwal as Ex.MW1/2) and MW1/2 Payment of Wages Register (Note: Wrongly mentioned in affidavit Ex. MW1/A of MW1 Mr. Deepak Aggarwal as Ex.MW1/1). Vide order dated 18.07.2013 made during the crossexamination of MW1 Mr. Deepak Aggarwal, MW1 Mr. Deepak Aggarwal was directed to produce Cash book and Income Tax Returns 2008 to 2010. Vide order dated 03.10.2013 MW1 Mr. Deepak Aggarwal filed certain documents and crossexamination of MW1 Mr. Deepak Aggarwal was concluded on 08.11.2013. ME was closed on 08.11.2013 by Dr. Abha Kulshrestha, Adv. for management.
6. APPLICATION OF MANAGEMENT FOR REOPENING OF CROSS EXAMINATION OF CLAIMANT.
Vide order dated 04.01.2014 an application moved by management on 08.02.2013 for reopening of crossexamination of claimant / workman and permitting the management to further crossexamine the claimant / workman was dismissed.
7. CHANGE IN CONSTITUTION OF MANAGEMENT FROM PARTNERSHIP OF (i) Mr. Deepak Aggarwal; (ii) Mr. Sumit Bansal; (iii) Mr. Harish Goyal (three partners as per Partnership Deed dated 14.09.2007) and (iv) Mr. Vardan Goyal (added subsequently vide Partnership Deed dated 01.04.2014) TO SOLE PROPRIETORSHIP OF Mr. Vardan Goyal.
Order dated 05.09.2014 reads as under: "ORDER 05.09.2014
1. Today case is fixed for orders as regards effect of change in the status of management on proceedings before this court. I have heard Mr. Rajesh Khanna ARW and Ms. Abha Kulshrestha Adv. for management on this aspect. Ld. counsel Page 5 to 19 (ANAND SWAROOP AGGARWAL) POLC - XI: KKD:DELHI/16.01.2015 Abhishek Kumar Vs. M/s. Balaji Offset DID No. 130/10 for the management submitted that Mr. Deepak Aggarwal one of the partners of management is ready and willing to give the statement that Mr. Deepak Aggarwal shall bear the financial liabilities, if any, as per the award that may be passed against the management in this case. This proposal was not agreed to by ld. ARW submitting that in such an eventuality an award of reinstatement in service, if passed in this case, would not be executable against the management herein. Further ld. ARW submitted that in view of change in the status of the management, ld. counsel for the management has ceased to have any authority to represent the management. Also ld. ARW submitted that he fails to understand as to who (i.e. the present management or the new proprietor of the management) would have a right to challenge the award passed in this case.
2. I have gone through the material available on judicial file very carefully.
3. This is a Direct Industrial Dispute filed by the workman against M/s Balaji Offset. M/s. Balaji Offset as per Partnership Deed dated 14.09.2007 available on the judicial file of DID No. 132/10 titled as Satish Kumar Vs. M/s. Balaji Offset comprises of Mr. Deepak Aggarwal, Mr. Sumit Bansal and Mr. Harish Goel. Vide order dated 18.07.2014, when the case was at the stage of final arguments, ld. counsel for the management filed on record certain photocopy documents i.e., (i.) photocopy of an application moved on 27.05.2014 for amendment under Delhi Value Added Tax Act, 2004 before the Department of Trade and Taxes, Govt. of NCT of Delhi by Mr. Vardan Goyal as proprietor of M/s. Balaji Offset and (ii.) and another application moved on 30.04.2014 for amendment under Delhi Value Added Tax Act, 2004 before the Department of Trade and Taxes, Govt. of NCT of Delhi by Mr. Deepak Aggarwal as partner of M/s. Balaji Offset.
Vide order dated 31.07.2014 ld. counsel for the management also filed on record photocopy of one Partnership Deed dated 01.04.2014 and one Dissolution Deed dated 28.04.2014. The net effect of documents filed by ld. counsel for the management on 18.07.2014 and 31.07.2014 is that vide Partnership Deed dated 01.04.2014 Mr. Vardan Goyal was added as fourth partner in addition to abovementioned three partners detailed in the Partnership Deed dated 14.09.2007. Accordingly, vide abovementioned application dated 30.04.2014 was moved for amendment under the Delhi Value Added Tax Act, 2014 by Mr. Deepak Aggarwal. Subsequently, partnership vide Partnership Deed dated 01.04.2014 was dissolved vide Dissolution Deed dated 28.04.2014 whereby Mr. Deepak Aggarwal, Mr. Sumit Bansal and Mr. Harish Goyal left the partnership w.e.f. 28.04.2014 and Mr. Vardan Goyal continued to do the business in the name of M/s Balaji Offset as a sole proprietor. Subsequently, Mr. Vardan Goyal moved abovesaid application Page 6 to 19 (ANAND SWAROOP AGGARWAL) POLC - XI: KKD:DELHI/16.01.2015 Abhishek Kumar Vs. M/s. Balaji Offset DID No. 130/10 dated 27.05.2014 for amendment under Delhi Value Added Tax Act, 2004. Thus, during the pendency of present proceedings M/s. Balaji Offset, initially a partnership firm, has changed into a sole proprietor concern owned by Mr. Vardan Goyal who was before becoming sole proprietor was added as fourth partner into the already existing partnership firm having three partners.
4. Question before this court is as to whether in view of abovesaid change in the status of management, Mr. Vardan Goyal, who is at present sole proprietor of the management, deserves to be summoned as a party to these proceedings or not.
5. At the outset, it is noted that changes in the status of management has taken place after 01.04.2014 when the case had reached at the stage of final arguments and both the parties had already availed opportunity to lead their evidence. The case had attained its maturity for final disposal before the abovesaid changes in the status of the management. Ordinarily/generally, liabilities of partners are jointly and severally qua third party. Thus, Mr. Vardan Goyal by joining the partnership firm w.e.f. 01.04.2014 became liable towards the outcome of this case to the same extent as the other existing partners of the management. Subsequently, Mr. Vardan Goyal became the sole proprietor of the management. Clause7 of the Dissolution Deed dated 28.04.2014 reads as under:
''7. The continuing partner shall in due course pay all the Credits and discharge all the liabilities of the said partnership and shall indemnify and keep indemnified the retiring partners against all actions, proceedings, costs and expenses in respect of matters relating to the said proceedings.'' Here the words 'continuing partner' refers to Mr. Vardan Goyal now sole proprietor of the management. It is noted that Mr. Vardan Goyal before becoming the sole proprietor of the management had become liable towards the outcome of this award when he joined the management as its fourth partner. Here Mr. Vardan Goyal is driving his rights in the assets/goodwill etc. of M/s. Balaji Offset through its partners, and before becoming the sole proprietor Mr. Vardan Goyal had also joined M/s. Balaji Offset as its partner. Thus, it cannot be said that Mr. Vardan Goyal is a party different and distinct from M/s. Balaji Offset against whom this Direct Industrial Dispute has been filed. When so understood this court may proceed with the adjudication of this case without summoning Mr. Vardan Goyal as a party to this case. It has also to be kept in mind an award passed by this court will have binding effect in terms of provisions contained in section 18 and, particularly, section 18 (3) (c) of the Industrial Disputes Act, 1947. However, it is deemed appropriate to order that a copy of this order be served Page 7 to 19 (ANAND SWAROOP AGGARWAL) POLC - XI: KKD:DELHI/16.01.2015 Abhishek Kumar Vs. M/s. Balaji Offset DID No. 130/10 upon Mr. Vardan Goyal s/o. Sh. Kailash Goyal, R/o. G16/33, Sector15, Rohini, Delhi85 as well as at the business address of management at J6, Udyog Nagar, Peeragarhi, New Delhi so that he may resort to legal remedies available to him, if he is aggrieved by any of the representation made by management vide documents filed on 18.07.2014 and 31.07.2014. Mr. Vardan Goyal may also be so served through Mr. Deepak Aggarwal who regularly appears before the court.
6. Nothing expressed in this order shall tentamount to expression of my opinion as regards existence (nonexistence as well)/extent of liabily of initial/final partners of M/s. Balaji Offset to comply with the final award that may pass in this case. In such a situation, it cannot be said that ld. counsel for the management has ceased to have authority to represent the management.
7. It is ordered accordingly."
8. On 11.12.2014, Authority of Dr. Abha Kulshrestha, Adv. was filed on behalf of Mr. Vardan Goyal.
9. ARGUMENTS I have heard Mr. Rajesh Khanna, AR for the workman and Dr. Abha Kulshrestha, Adv. for management. Ld. counsel for management relied upon case laws reported as (i) Surendranagar District Panchayat Vs. Dahyabhai Amarsinh, 2006 (108) FLR 193; (ii) Automobile Association of Upper India Vs. P.O. Labour Court II & Anr. 2006 LLR 851;
(iii) State of Haryana Vs. Ramesh Kumar, 2008 (118) FLR 694 and (iv) Ranip Nagar Palika Vs. Babuji Gabhaji Thakore and Ors., 2009 (120) FLR 1007. Ld. counsel for management also filed written submissions and mentioned therein some more case laws reported as (i) P. N. Yadav Vs. C. Bose, 2011 (1) LLJ 316 (Delhi); (ii) Rahimuddin & Ors. Vs. Gossini Fashions Ltd. 2011 LLR 824 Delhi; (iii) Electronics Corporation of India Ltd. Vs. Union, 2006 VII AD (S.C.) 461; (iv) Krishna Bhagya Jala Nigam Vs. Mohammad Rafi, 2006 IX AD (S.C.) 112; Workmen of Nilgiri Coop. Marketing Society Ltd. Vs. State of Tamil Nadu and Ors., 2004 LLR 351 (SC); (v) Ravindra Baburao Ambolkar Vs. Gujarat Tea Canteen, 1996 LLR 40; (vi) Swapan Das Gupta Vs. The First Page 8 to 19 (ANAND SWAROOP AGGARWAL) POLC - XI: KKD:DELHI/16.01.2015 Abhishek Kumar Vs. M/s. Balaji Offset DID No. 130/10 Labour Court, 1976 Lab. IC 202; (vii) N. C. John Vs. Secretary 1973 Lab IC 398; (viii) Soni Photostat Centre Vs. Basudev Gupta & Another 2004 LLR 546; (ix) Ravi N. Tikoo & Deputy Commissioner & Ors. 2006 LLR 496 (Delhi); (x) Pratima Seth Vs. Management of M/s. Ansal Properties and Industries Ltd. 2007 III AD (Delhi) 314; (xi) Kendriya Vidyalaya Sangathan Vs. S. C. Sharma 2005 LLR 275 (SC); (xii) Municipal Council, Sujanpur Vs. Surinder Kumar 2006 (3) L. L. N. 806 (SC); (xiii) S. B. Chengalvaraya Naidu Vs. Jagannath AIR 1994 (SC) 853 and (xiv) M/s. Purafil Engineers Vs. Shaikh Anwar Abdul Rahman 2000 LLR 268. Material available on judicial file perused carefully. I have given a thoughtful consideration to the facts and circumstances of this case as they arise on the basis of material available on judicial file. The case laws perused with utmost regards with a query in mind as to the applicability of the case laws in the facts and circumstances of this case.
10. My ISSUEWISE findings are as under: ISSUE NO. 1 Whether there is a relationship of employer and the employee between the claimant and the Management? OPM In this issue, as regards onus, 'OPM' is mentioned. There appear to be some typographical error in mentioning 'OPM' inasmuch as it is a settled proposition of law that onus to prove that there existed relationship of employee and employer between the claimant and management is on the claimant. Existence of relationship of employee and employer between claimant and management is necessary to bring the claimant within the definition of 'workman' under section 2 (s) of the Industrial Disputes Act, 1947. It is also a settled proposition of law that existence of such relationship is to be proved on the basis of principle of preponderance of probability. Standard of proof required is not that Page 9 to 19 (ANAND SWAROOP AGGARWAL) POLC - XI: KKD:DELHI/16.01.2015 Abhishek Kumar Vs. M/s. Balaji Offset DID No. 130/10 high that the claimant is supposed / required to prove that there existed relationship of employer and employee by leading evidence of the nature / quality so that it may be said, beyond all reasonable documents, that there existed such relationship between claimant and management. Workman is supposed to prove existence of such relationship on the basis of application of principle of preponderance of probabilities (i.e. there is every / likely possibility of existence of such relationship keeping in view the totality of facts and circumstances of the case and particularly the nature of evidence lead by one party to prove existence of such relationship and the other party to rebut such evidence lead by one party.
HERE, as per claimant, claimant was working with the management since last one year and his services were illegally / unjustifiably terminated by the management on 28.07.2009 in violation of provisions of section 25 F of the Industrial Disputes Act, 1947. In his crossexamination claimant / workman deposed that, "...... I was appointed on 20.05.2008 as Inkman.....". On the other hand, as per management, claimant never worked with management and section 25 F of the Industrial Disputes Act, 1947 has no application. MW1 Mr. Deepak Aggarwal (Partner of management) in his cross examination conducted on 16.05.2013 deposed that, "The Management firm had started functioning November,2007 onwards. The employees of the Management use / used not to sign the attendance register. The Management used to maintain some 'kachha' records of its employees initially. However, after June / July, 2008 it started maintaining appropriate records as per law of its employees.....". MW1 Mr. Deepak Aggarwal in his crossexamination conducted on 18.07.2013, however, deposed that, "..... It is wrong to suggest that employees have been working in the management since 2007. (Vol in the year 2007 the machinery were purchased and it took about 8 months for the management Page 10 to 19 (ANAND SWAROOP AGGARWAL) POLC - XI: KKD:DELHI/16.01.2015 Abhishek Kumar Vs. M/s. Balaji Offset DID No. 130/10 to start functioning.) It is wrong to suggest that I am deposing falsely by stating that management had not started working in the year 2007. I do not remember the exact date when the management had started employing the employees for its working however, perhaps it was so December 2008 or January 2009. It is wrong to suggest that employees have been working with the management since 2007...".
OBVIOUSLY, MW1 Mr. Deepak Aggarwal has attempted to improve upon his depositions made on 16.05.2013. Depositions made on 16.05.2013 suggest that management was employing employees ever prior to June / July 2008 / since November 2007 but on 18.07.2013 MW1 Mr. Deepak Aggarwal deposed that it was so in December 2008 or January 2009. Noteably initial Partnership Deed of management is dated 14.09.2007 and Partnership Deed dated 01.04.2014 mentions that parties to the deed were carrying on the business of all kind of printing work and trading of rexin etc. in all the name and style of M/s. Balaji Offset at J6, Udyog Nagar, Near Peera Garhi Chowk, Delhi as a Partnership concern since 14.09.2007 as per duly executed Partnership Deed dated 14.09.2007.
Thus, the possibility of management employing claimant as 'InkMan' since 20.05.2008 cannot be ruled out altogether.
As per claimant his services were illegally terminated by management on 28.07.2009 and workman made complaint (Ex.WW1/1) dated 31.07.2009 to Assistant Labour Commissioner. Also claimant sent Demand Notice (Ex.WW1/2) dated 06.08.2009 to management. Management in the WS, did not specifically reply as regards whether the said demand notice was served upon the management or not or whether, upon being served with demand notice, management replied it or not. There is no crossexamination of workman as regards claimant / workman sending demand notice Page 11 to 19 (ANAND SWAROOP AGGARWAL) POLC - XI: KKD:DELHI/16.01.2015 Abhishek Kumar Vs. M/s. Balaji Offset DID No. 130/10 Ex.WW1/2 to management. MW1 Mr. Deepak Aggarwal in his evidence affidavit Ex.MW1/A deposed that, " 6. ..... No demand letter was ever received by the management and hence there was no question of replying to the same.......". But MW1 Mr. Deepak Aggarwal in his crossexamination on 16.05.2013 deposed that, "..... The demand notice Ex.WW1/2 sent by the claimant was received by the Management establishment. No reply to the demand notice Ex.WW1/2 was sent to the workman as the workman Abhishek Kumar was not our employee.....". Noteably MW1 Mr. Deepak Aggarwal in his crossexamination conducted on 18.07.2013 deposed that, "...... Address of the management on Ex.WW1/2 is correctly mention. I do not remember whether Ex.WW1/2 was received by the management or not. I also do not remember whether the same was replied by the management or not. I feel that I do not have copy of the reply to Ex.WW1/2. Had I have been possessing the reply I must have remembering about the same......". Management at the earliest opportunity did not deny averments of workman as made in demand notice Ex.WW1/2 by relying the same.
As per workman / claimant, workman / claimant through labour department / office tried to get back his service with management and payment of unpaid earned salary from the management, but management neither reinstated the workman / claimant nor paid unpaid earned salary to workman / claimant. Management in the WS, mentioned that claimant had earlier preferred a false and frivolous case against the management before the Labour Commissioner which was subsequently withdrawn by him on 26.10.2009. As regards proceedings in the labour office MW1 Mr. Deepak Aggarwal deposed as under: "....I do not remember if the copy of the claim of the claimant filed before the Conciliation Officer was supplied to the Management by the Conciliation Officer or not. The written statement to the claimant's claim Page 12 to 19 (ANAND SWAROOP AGGARWAL) POLC - XI: KKD:DELHI/16.01.2015 Abhishek Kumar Vs. M/s. Balaji Offset DID No. 130/10 filed before the Conciliation Officer might have been filed by Management before the Conciliation Officer. It is correct that I have not filed the aforementioned reply on records of the judicial file. It is wrong to suggest that I have not filed the aforementioned reply on record because no such reply was ever filed by the Management before the Conciliation Officer.
It is wrong to suggest that the claim of the claimant filed before the Conciliation Officer was withdrawn by the claimant or that the same was not dismissed. Again said the Conciliation Officer had noted in the said file that the case has been dismissed as withdrawn.
The Management participated the proceedings before the Conciliation Officer after receiving notice / summons from him. It is correct that the Management never gave in writing before the Conciliation Officer that the claimant Abhishek Kumar was not its employee.....". Thus, it is observed that before the Conciliation Officer, management did not in writing deny the employment of workman / claimant herein with the management. WW2 Mr. Deepak Kumar, Labour Inspector in his examinationinchief deposed as under: "..... during my visit of the aforementioned Management establishment, the partner of the Management Mr. Sumit agreed that the names of the workmen mentioned in the complaint Ex.WW1/1 were the employees of the Management firm.
Thereafter I gave my report Ex.WW1/A which is signed by me at point A and the same is correct report of mine....".
As regards visit of WW2 Mr. Deepak Kumar, Labour Inspector, MW1 Mr. Deepak Aggarwal deposed as under: ".....Mr. Sumit Bansal is also one of the Partners in the Management. It is correct to suggest that Mr. Abhishek, Satish Kumar, Indresh Singh, Amar Kumar and Alok had made complaint in the Labour Department regarding their alleged illegal termination. It is correct to suggest that some labour inspector had visited the management regarding the above Page 13 to 19 (ANAND SWAROOP AGGARWAL) POLC - XI: KKD:DELHI/16.01.2015 Abhishek Kumar Vs. M/s. Balaji Offset DID No. 130/10 said complaint but I can not tell the name of labour inspector. It is correct to suggest that the labour inspector had met Sh. Sumit Bansal. It is correct to suggest that labour inspector had asked Sh. Sumit Bansal after discussion to produce the relevant records in the office of the Labour Department.
Qus. It is put to you that no record was produced by the management before the labour inspector?
Ans. We had consulted a counsel Mr. Rahul Bharadwaj r/o Sector15, Rohini, Delhi. We had made available entire record to him for producing before the labour inspector. Said Mr. Rahul had told us that there is no need for producing the records before the labour inspector in as much as Mr. Rahul Bharadwaj had shown us the documents showing withdrawal of the case from the labour department.
It is wrong to suggest that I am deposing falsely vide answering the last question. I do not know after submitting his report labour inspector had asked the workman to start the conciliation proceedings. I do not know that conciliation proceedings had taken place before ALC. There was no need for filing any reply before the ALC in as much as, told to us by our counsel that complaint had already been withdrawan....". Thus, it is observed that admittedly (i) labour inspector visited the management regarding complaint Ex.WW1/1 made by workmen through union to the Asst. Labour Commissioner; (ii) the labour inspector had met Mr. Sumit Bansal; (iii) labour inspector had discussions with Mr. Sumit Bansal and (iv) the labour inspector had asked the Mr. Sumit Bansal to produce the relevant records in the office of labour department. These admission made by MW1 Mr. Deepak Aggarwal in his cross examination regarding visit of labour inspector to the establishment of management add to the credibility of report (Ex.WW1/1A) of the labour inspector wherein labour inspector stated that management through Mr. Sumit admitted the employees (namely Satish Kumar, Alok, Amar Kumar, Abhishek Kumar, Indresh and Ajay) as mentioned in the said report Ex.WW1/1A to be employees / workmen of the management. If above referred portion of the report Page 14 to 19 (ANAND SWAROOP AGGARWAL) POLC - XI: KKD:DELHI/16.01.2015 Abhishek Kumar Vs. M/s. Balaji Offset DID No. 130/10 Ex.WW1/1A was not acceptable to the management, management must have examined Mr. Sumit Bansal in its evidence to rebut / controvert about portion of the report Ex.WW1/1A. But said Mr. Sumit Bansal has not been examined by management as its witness. Nor there is any explanation for nonexamination of Mr. Sumit Bansal. Also it is pertinent to note that MW1 Mr. Deepak Aggarwal in his evidence affidavit Ex.MW1/A has not at all deposed about report Ex.WW1/1A. In his evidence affidavit MW1 Mr. Deepak Aggarwal has not challenged the correctness of the report Ex.WW1/1A. Further it has not been suggested to workman in his crossexamination that report Ex.WW1/1A is a false and fabricated document. In view of depositions / admissions made by MW1 Mr. Deepak Aggarwal regarding visit / proceedings of labour inspector it is not to much legal consequences that the labour inspector did not produce the original record prepared / maintained pursuant to complaint Ex.WW1/1 and labour inspector deposed only about his report Ex.WW1/1A. It is also immaterial that labour inspector failed to disclose about the date and time of his visit inasmuch as admittedly / undisputedly labour inspector had visited the establishment of management and had met Mr. Sumit Bansal and had discussed the matter of complaint Ex.WW1/1 with Mr. Sumit Bansal.
Management in the case in hand pleaded that claimant preferred conciliation proceedings before Dy. Labour Commissioner, Karampura, Delhi which were eventually withdrawn by the claimant on 26.10.2009 as the same was meritless and bogus. The fact that claimant / workman withdrew the claim filed by him before the Conciliation Officer does not at all affect the right of the workman to raise industrial dispute regarding termination of services of workman under section 10(4A) of the Industrial Disputes Act, 1947. The statement of claim in this case was filed on 15.04.2010 on which date Page 15 to 19 (ANAND SWAROOP AGGARWAL) POLC - XI: KKD:DELHI/16.01.2015 Abhishek Kumar Vs. M/s. Balaji Offset DID No. 130/10 workman / claimant had every right to raise industrial dispute regarding termination of his services before this Court directly in terms of provisions of section 10(4A) of the Industrial Disputes Act, 1947 inserted vide State Amendment Delhi Act 9 of 2003, sec. 2 (w.e.f. 22.08.2003).
Further, to show his employment with the management workman / claimant is relying upon Ex.WW1/4 (attendance card for the month of July 2009). WW1 Mr. Abhishek Kumar in his crossexamination deposed that, ".... It is correct that Ex.WW1/4 does not bears the name of management. Vol. The same document bears the signatures of partners of the management. There are three partners but I know only the names of only two i.e. Mr. Sumit and Mr. Harish...". It is alright that Ex.WW1/4 does not bears the name of management but what is pertinent to note is that it has not been even suggested to workman in his crossexamination that Ex.WW1/4 is a forged and fabricated document.
It is alright that name of workman Mr. Abhishek Kumar does not find mention in the records produced by the management as Ex.MW1/1 and Ex.MW1/2 but that by itself in the totality of the facts and circumstances of this case does not necessarily mean that workman / claimant Abhishek Kumar was not employed by the management as pleaded / deposed by workman in the statement of claim / evidence affidavit Ex.WW1/A. MW1 Mr. Deepak Aggarwal deposed that the management used to maintain some 'kachha' record of its employees initially, however, after June / July, 2008 management started maintaining appropriate record as per law of its employees. But neither the said 'kachha' record or records after / w.e.f. June / July, 2008 has been produced by management. Management produced Ex.MW1/1 and Ex.MW1/2 for the period from January 2009 onwards only. Also it is noted that depositions of workman Page 16 to 19 (ANAND SWAROOP AGGARWAL) POLC - XI: KKD:DELHI/16.01.2015 Abhishek Kumar Vs. M/s. Balaji Offset DID No. 130/10 regarding his employment with the management are finding support from the depositions made by WW2 Mr. Deepak Kumar, Labour Inspector whose depositions have not been controverted by Mr. Sumit Bansal, who was at the relevant point of time admittedly one of the Partners of the management, and who was also looking after the functioning of the management inasmuch as MW1 Mr. Deepak Aggarwal in his cross examination deposed that, "..... It is correct that we all the three partners lookafter the functioning of the management together...." and, further, that admittedly labour inspector had met / discussed the matter with Mr. Sumit Bansal.
In view of above detailed discussions it is observed, by applying the principle of preponderance of probabilities, that in all likelihood there did exist a relationship of employer - employee between the management and claimant / workman Mr. Abhishek Kumar and this issue is, accordingly, decided in favour of the workman. ISSUE No.2:
Whether the services of the workman have been terminated illegally and / or unjustifiably by the Management?OPW Management in this case took the stand that claimant never worked with the management. This stand of the management, while deciding issue no.1, has not been found worth credence by the judicial mind in the totality of the facts and circumstances of this case. Workman in his cross examination deposed that workman was appointed on 20.05.2008. Workman pleaded and deposed that his services were terminated on 28.07.2009. Management did not reply the demand notice nor submitted its written reply during the conciliation proceedings. Infact, after the decision of the Court on issue no.1, management can be said to be having no defence / stand as regards the subject matter of the issue and version of workman deserves to be decided in toto. The Page 17 to 19 (ANAND SWAROOP AGGARWAL) POLC - XI: KKD:DELHI/16.01.2015 Abhishek Kumar Vs. M/s. Balaji Offset DID No. 130/10 discrepancies, already noted while dealing with issue no.1, as regards date of start of business / employing of employees, by management are also relevant to be noted while dealing with this issue. Accordingly, Court can be said to be left with no option but to conclude / observe that management in all likelihood terminated the services of workman illegally / unjustifiably in violation of provisions of section 25F of the Industrial Disputes Act, 1947 as per the case of the workman. Issue is, accordingly, decided in favour of the workman.
ISSUE No. 3: Relief, if any Merely because management terminated the services of workman illegally / unjustifiably does not mean that workman is automatically entitled to be reinstated in service with the management with full back wages. Keeping in view the fact that there has been a complete change in the constitution of management and workman had a very short service tenure with the management, workman is held to be not entitled to reinstatement in service with the management.
Workman in the statement of claim pleaded that workman is completely unemployed since the date (i.e. 28.07.2009) of illegal termination of his services by management and despite endless efforts made by workman, workman did not get alternative service. Further workman pleaded that workman is facing financial crises on account of his being unemployed and, also, workman is facing problem in maintaining ('palan poshan') his family for which management is responsible. Workman has not disclosed about the places where workman allegedly searched for job. There is nothing on judicial file, besides oral depositions of workman, to show that workman did make sincere serious efforts to get the alternative employment / job. Also workman cannot be assumed to be unemployed since more than last four years in a city like Delhi where Page 18 to 19 (ANAND SWAROOP AGGARWAL) POLC - XI: KKD:DELHI/16.01.2015 Abhishek Kumar Vs. M/s. Balaji Offset DID No. 130/10 work pertaining to the workman may be easily available. Also workman has not examined his brother who is, as deposed by workman, bearing expenses of workman. Accordingly workman is held to be not entitled to full back wages.
In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the tune of Rs.25,000/ (Rupees Twenty Five Thousand only) to the workman for illegal / unjustified termination of his services by the management and for consequences thereof / back wages would meet the ends of justice. If this amount of Rs.25,000/ (Rupees Twenty Five Thousand only) is not paid to workman within one month of award coming into force management shall be liable to pay interest @ 9% per annum on this amount from the date of the award till its payment. A sum of Rs.10,000/ (Rupees Ten Thousand only) is also awarded to workman as costs of litigation payable by the management.
11. A copy of the award be sent to Office of the concerned Deputy Labour Commissioner for further necessary action. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 16.01.2015
(ANAND SWAROOP AGGARWAL)
POLCXI, Karkardooma Courts, Delhi*
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