Delhi District Court
Sh. Vishal Kumar S/O Sh.Gopinath Singh vs M/S I.J.M. (India) Infrastructure Ltd on 31 July, 2013
IN THE COURT OF SH. CHANDRA GUPTA
PRESIDING OFFICER LABOUR COURTX
KARKARDOOMA COURTS, DELHI.
D.I.D. No. : 58/09
Date of Institution of the case : 27.08.2008
Date on which reserved for Award : 18.07.2013
Date on which Award is passed : 31.07.2013
Unique DID No. 02402C0650642008
Sh. Vishal Kumar S/o Sh.Gopinath Singh,
C/o Sh. Markendey Shukla, Authorized Representative,
Sh. Chandra Shekhar Chauhan, Advocate,
Chamber No. C183, Tis Hazari Court, Delhi110054.
...............Workman
Versus
M/s I.J.M. (India) Infrastructure Ltd.
Gate No. 1, M.C.D. Civil Centre, J.L.N. Marg,
Minto Road, New Delhi110002. ...............Management
A W A R D
The workman Sh. Vishal Kumar, raised an industrial
dispute regarding the termination of his services by the management
of M/s I.J.M. (India) Infrastructure Ltd.. Direct statement of claim
was filed by the workman in the court. In the statement of claim, it is
stated by the workman that he was working regularly with the
management as 'Supervisor' since March, 2006 at the monthly salary
of Rs. 5,714/ with the honesty and sincerity; that the workman
neither given any chance of complaint to the management nor any
charge sheet was issued to him; that the management was not
D.I.D. No. 58/09 Page No. 1 out of 35
providing legal facilities to the workman such as appointment letter,
payment of yearly and casual leaves, payment of the overtime of work
of 12 hours per day, E.S.I. etc.; that the workman was repeatedly
orally demanding the same from the management; that during this
period the wife of the workman was ill and the workman had gone for
leave of 45 days and gave the information about this to the
management; that during this period the management gave a letter
dated 27.05.2008 to the workman and made a false allegation of
absence of 23 months from duties; that the workman gave a reply to
the letter of the management through letter dated 04.06.2008; that
the fact was that the workman was on leave only for 45 days but the
management has made a false allegation of absence from duty for a
period of 23 months as the management had not provided any
attendance card etc. to the workman; that the management has made a
false allegation of their own will of absence of the workman from
duty; that on 09.06.2008 when the workman had reported for duty,
the management had terminated the services of the workman illegally
without giving any prior information or due payment to him, which
action of the management was illegal and unjustified; that the
workman sent a demand notice dated 22.07.2008 through registered
AD/UPC to the management demanding his due wages and
reinstatement in service but the management neither reinstated him
D.I.D. No. 58/09 Page No. 2 out of 35
nor paid any dues to him; that the management had not given any
notice, notice pay or service compensation or held any enquiry
against the workman before terminating him from the services; that
the management had violated the provisions of Section 25 F of the
Industrial Disputes Act, 1947 (as amended upto date) in respect of the
workman; that the workman was unemployed since the date of
termination of his services and has not been able to secure any
employment despite efforts; that the management had terminated the
services of the workman illegally with the feeling of illwill after
making false allegations against the workman. Hence, the workman
has claimed for reinstatement with full back wages, continuity of
service and all his dues.
Notice of the filing of statement of claim was sent to
the management who did not appear despite due service and was
proceeded exparte vide order dated 10.11.2008, which was later on
set aside on the moving of an appropriate application on behalf of the
management in this regard, on record. That thereafter, the
management contested the statement of claim of the workman by
filing its written statement. In the written statement filed by the
management, it has taken the preliminary objections that the present
claim deserves dismissal as the whole claim was baseless, frivolous
and a flagrant abuse of the process of law; that the workman had filed
D.I.D. No. 58/09 Page No. 3 out of 35
the present claim with malafide intention and with a view to drag the
answering management in frivolous litigation to extort money from
the management; that the workman had miserably failed to bring any
substance against the management; that the present claim is not
maintainable and is liable to be dismissed as no cause of action had
ever arisen in favour of claimant/workman and against the
respondent/management; that the workman had not approached this
Hon'ble Court with clean hands thus disentitling himself from any discretionary or other relief from this Hon'ble Court; that the claimant had concealed material facts from this Hon'ble Court hence his claim is liable to be dismissed; that the claimant was habitual in absenting/missing from the duty during working hours after signing the attendance register and for this reason respondent had admonished the claimant repeatedly but after seeing no improvement warned through notice dated 27.05.2008 for taking disciplinary action and claimant on one pretext or other used to give false assurance and excuses; that repeated chances to the claimant proved futile; that the claimant had been absenting for his own reasons after he was asked to report in morning instead of evening shift as he was found vanishing after marking his presence in the attendance register; that he was under watch for 23 months and after finding him to be guilty for non attending his duty he was shifted in morning shift instead of evening D.I.D. No. 58/09 Page No. 4 out of 35 shift; that from then onwards he was absent without any reason or explanation; that instead of performing his duty he had preferred knocking the doors of this Hon'ble Tribunal under ingenious advice; that labour laws were formulated for workmen who suffer for the act of management and not for black sheep who do not want to work but want to enjoy fruit of work; that the respondent was constructing MCD Building as well as Metro Lines as Stations and thousands of workmen were serving on different sites; that except people like claimant and other one or two all the workmen of respondent were more than satisfied; that no unions, no strikes, no slowdowns honest working, honest payment was the key of success; that respondent's gates were and are open for claimant in case he undertakes to shed his old habits and work honestly and diligently; that he had to serve in morning shifts so can be under vigil. On merits it is admitted that claimant was working with the management since March, 2006 and his last drawn monthly salary was Rs. 5,714/; that it was denied that claimant was performing duties sincerely and honestly during his service tenure and no complaint was against the workman; that the respondent had given repeated verbal warning but after seeing no improvement in workman's conduct the respondent was forced to issue a warning letter dated 27.05.2008; that anything stated contrary was denied in totality; that it was denied that the workman was not D.I.D. No. 58/09 Page No. 5 out of 35 given facilities provided under Industrial Disputes Act like letter of appointment, money for annual and casual leave, overtime payment, E.S.I. etc; that it was denied that workman had demanded verbally and the same had not been provided by the respondent were baseless and airbuilt; that the respondent was a well known company and strictly adhere to rules and regulations; that it was denied that the wife of workman was seriously suffering from any disease and due to this reason workman had gone for 45 days leave; that workman on one pretext or other befooled officials of IJM and most dishonestly marked his attendance in the attendance register and vanished without performing any duty for which he was paid salary; that this crafty act continued for 23 months compelling the respondent to issue a warning letter which was not adequately explained except pleading mercy by the claimant; that the respondent gave another opportunity by shifting the duty from night to morning whereupon workman finding that his deceitful act cannot continue any further, had stopped attending office which elucidate the previous conduct of the workman; that it was not only the irregularity but defiance of the workman which culminated into issue of notice; that anything stated contrary was denied in totality; that it was denied that the claimant ever turned on 09.06.2008 for attending the services but respondent had terminated the workman services in illegal and wrongful manner D.I.D. No. 58/09 Page No. 6 out of 35 and retained the workman money; that as there was no personal animosity of any of the respondent official with the workman who were inimical to the claimant and wanted to throw out the claimant from the service of the respondent; that on many occasions claimant was found guilty of disobeying the orders of his superiors wrongfully marking presence in the attendance register and leaving from the spot without informing anybody from the respondent; that it was denied that the notice dated 22.07.2008 was having any substance; that the respondent properly replied the said notice vide reply dated 07.08.2008; that the claimant had time and again pleaded guilty and mercy and respondent believing every time excused the workman but workman had started taking undue advantage and finally he was issued notice dated 27.05.2008 which was even not bothered by the claimant; that all the allegations were correct but the said allegations were blatantly refused by the claimant without any justification; that it was denied that the claimant's services were terminated; that it was the claimant who does not want to work and had not been attending duty since he was asked to attend duty in morning shift; that all contentions of 25 F of the Industrial Dispute Act etc were denied in totality; that the claimant malafidely was pushing blame to respondent in order to suppress for his own misconduct and misbehavior; that anything stated contrary was denied in totality; that the workman was D.I.D. No. 58/09 Page No. 7 out of 35 not entitled for any sympathy which he was trying to take from this Hon'ble court based upon concocted and airbuilt stories; that each and every averments was vehemently denied; that the workman was granted many opportunities but despite being grant of many opportunities workman failed to prove his improvise and had been guilty of his previous conduct; that the respondent after knowing the truth gave warning letter and later on shifted him to morning shift and claimant understanding that he will be required to work stopped attending his duty rather found more convenient way of approaching Labour Union and file this false and frivolous litigation to extort unjust enrichment. All other allegations are denied. Hence, it is prayed that the statement of claim be dismissed.
No rejoinder to the written statement of the management has been filed, on record.
On the pleadings of the parties vide order dated 06.02.2009, the following issues were framed:
(i)Whether services of workman terminated legally and justifiably?
(ii)Relief.
No other issue arose or pressed and the case was adjourned for workman evidence.
Thereafter, the management had stopped appearing in the D.I.D. No. 58/09 Page No. 8 out of 35 instant proceedings and the management was again proceeded exparte vide order dated 23.10.2009 and the case was fixed for exparte workman evidence.
In support of his case, the workman himself has appeared as WW1 in exparte workman evidence, tendered his affidavit by way of evidence Ex. WW1/A as also relied upon the documents Exts. WW1/1 to WW1/10, on record.
After examining WW1, the exparte workman evidence was closed, on record, and the case was fixed for hearing of exparte final arguments.
However, thereafter, the order dated 23.10.2009, proceeding the management exparte was set aside on the moving of an appropriate application on behalf of the management in this regard, on record, and the case fixed for workman evidence.
In support of his case, the workman himself has appeared as WW1 in workman evidence, tendered his affidavit by way of evidence Ex. WW1/A as also relied upon the documents already Exts. WW1/1 to WW1/10, on record.
After examining WW1, evidence on behalf of the workman was closed.
In support of its defence, management has examined Sh. Rajeev Ranjan Singh, Senior HR Executive of the management as D.I.D. No. 58/09 Page No. 9 out of 35 MW1 in management evidence, who has tendered his affidavit by way of evidence Ex. MW1/A as also relied upon the documents Exts. MW1/1 to MW1/10 in the same, on record. In his affidavit by way of evidence, he has reiterated the contents of the written statement of the management.
After examining MW1, management evidence has been closed, on record, and the case fixed for hearing of final arguments.
However, thereafter, an application has been moved on behalf of the management under Section 151 CPC r/w Sections 137 and 138 of Indian Evidence Act, 1872 for reexamination of the MW1 Sh. Rajeev Ranjan Singh in management evidence, which has been allowed vide the relevant order passed in this regard, on record.
In his reexamination the MW1 Sh. Rajeev Ranjan Singh, has tendered his affidavit by way of evidence Ex.MW1/1A in management evidence as also relied upon documents already Exts.MW1/1 to MW1/10, on record.
After reexamining MW1, the management evidence has been closed, on record.
I have heard the submissions of ARs for both the parties. AR for the workman has also filed written submissions as also relied upon citations: 190 (2012) DLT 91 (DB), Delhi Transport Corporation Appellant Vs. Shyam SinghRespondent; 190 (2012) D.I.D. No. 58/09 Page No. 10 out of 35 DLT 378, DTCPetitioner Vs. Raj PalRespondent and 140 (2007) DLT 351, MCDPetitioner Vs. Vijay Pal and Ors.Respondents. My issuewise findings are as under: Issue no.1.
It is seen from the record that the workman has appeared as WW1 in the workman evidence, tendered his affidavit by way of evidence Ex.WW1/A as also relied upon documents Exts.WW1/1 to WW1/10 in the same, on record. In his affidavit by way of evidence Ex. WW1/A, he has reiterated the contents of his statement of claim as also deposed that he had been employed with the management M/s IJM (India) Infrastructure Ltd. since March, 2006 on the post of Supervisor on the last drawn wages of Rs. 5,174/ per month; that he had been discharging his duties with utmost sincerity and honesty; that he had given no chance of complaint to the management and nor there was any charge against him; that the management used to take duty from him for 12 hours but did not give overtime allowance to him for which he had been demanding several times from the management, on account of which the management had not allowed him to resume duty on 09.06.2008 when he had reported for duty with the management on the said date; that the wife of the workman was ill and apart from him there was nobody to look after her at Delhi on account of which he had taken leave for 45 days on informing the D.I.D. No. 58/09 Page No. 11 out of 35 management in this regard; that he had been told orally by the management that he can rejoin his duties with the management after getting his wife treated for her ailment; that he had never absented himself from his duties with the management but the management vide letter dated 27.05.2008 to him had alleged that he had been absenting from his duties with the management for the past 23 months to which he had replied vide his letter to the management along with the medical document in respect of the illness of his wife but when he had reported for duty with the management on 09.06.2008 the management had refused to allow him to join his duties with the management on the said date as also had withheld his earned wages for the month of May, 2008; that he had sent a demand notice to the management for taking him back on duty/his reinstatement in service with the management dated 22.07.2008 vide registered AD and UPC post which had neither been replied nor complied with by the management; that the management had not issued attendance card in his respect nor appointment letter to him and nor even were taking his signatures on the payment of wages register in lieu of payment of wages to him for the work done each month; that the management were maintaining register on which they were taking his signatures and some time were getting his signatures on vouchers in lieu of payment of wages to him; that he had been D.I.D. No. 58/09 Page No. 12 out of 35 demanding for his legal facilities/entitlements, as abovesaid, from the management on account of which the management was remaining annoyed with him and had subsequently removed him from his services with the management and had made him unemployed; that the management had terminated his services due to harboring a feeling of ill will and revenge against him as also had withheld his earned wages; that the Bonus Act was fully applicable to the establishment of the management which was also not paid by the management to him; that the management vide para no.3 of its reply dated 07.08.2008 to his demand notice dated 22.07.2008 had asked him to rejoin duties on which he had gone to the management for re joining his duties with the management but the manager had not allowed him to enter the premises of the management and had made him to sit with the security guard of the management at its entrance ; that the manager had come to him and had asked him to put his signatures on certain papers to which he had refused on which the management had told him that in case he did not put his signatures on the papers he would not be allowed to rejoin his duties with the management and had asked the security guard at the entrance of the management to show him the way out; that the management vide letter dated 26.06.2008 to him had talked about his transfer from one establishment to another in para no.2 of the same; that in this regard D.I.D. No. 58/09 Page No. 13 out of 35 he had asked for his transfer letter from one establishment to another from the management but the management had not given him any transfer letter in this regard and nor any appointment letter in this regard in which the factum of such transfer had been mentioned to the effect that his services with the management were being transferred from its one establishment to another; that by way of the said allegation the management was merely trying to mislead him; that instead of taking him back on duty, the management was merely trying to mislead the workman by way of such letters/correspondence on advise by their legal advisors/consultants instead of taking him back on duty or making payment of the legal dues of the workman which action /practice of the management was illegal and anti labour; that the workman had filed copies of the correspondence entered into between him and the management in respect of his grievance vide his instant statement of claim along with his instant affidavit by way of evidence which may be read as a part and parcel of the same; that the workman was unemployed from the date of termination of his services on the part of the management and despite having searched for alternative employment at various places he has not been able to secure any alternative employment.
Ex.WW1/1 being copy of legal notice dated 10.06.2008 got sent by the workman to the management through counsel; D.I.D. No. 58/09 Page No. 14 out of 35 Exts.WW1/2 and WW1/3 being postal registration receipts in its respect; Ex.WW1/4 being the UPC in its respect; Exts.WW1/5 and WW1/6 being other copies of the said demand notice sent by the workman to the management; Ex.WW1/7 being postal registration receipt; Ex.WW1/8 being copy of the demand notice dated 22.07.2008 got sent by the workman to the management; Ex.WW1/9 being copy of letter dated 27.05.2008 of the management to the workman; Ex.WW1/10 being AD card of the management in respect of Ex.WW1/8.
This witness has been cross examined at length on behalf of the management, in which he has deposed that the workman was working with the management since March, 2006 as its employee; that he was not issued any appointment letter by the management; that he was doing 12 hours duty with the management on each day; that it was wrong to suggest that he used to sign on the duty register and then did not do the work and go away; that he could not say that at what time he had gone away from his duty on 09.06.2008; that he had informed Sh. Rajiv and Sh. Vivek Jain and then left his duties on that day due to the illness of his wife; that his wife was suffering from mental ailment; that she was being treated for her ailment at the hospital for about 3 months at that time; that it was wrong to suggest that he used to remain at home due to the illness of his wife; that his D.I.D. No. 58/09 Page No. 15 out of 35 wife was a house wife; that there used to be nobody else at the house at that time; that he had not given any leave application in respect of his being on leave at that time; that he had never been given any verbal warning by his superior; that he had been given a letter by the management in respect of his being absent from his duties; that he had given reply to the said letter of the management; that it was wrong to suggest that he had remained on leave of his own without taking any permission from the management; that he had not been transferred to any other place by the management; that he had not been given any termination letter by the management; that it was wrong to suggest that he had filed a false claim against the management or that he was deposing falsely.
Thereafter, workman evidence has been closed, on record. In management evidence, the management has led the evidence of Sh. Rajeev Ranjan Singh, Senior HR Executive of the management, who has appeared in the management evidence as MW1, tendered his affidavit by way of evidence Ex.MW1/A as also relied upon the documents Exts.MW1/1 to MW1/10 in the same, on record. In the affidavit by way of evidence Ex.MW1/A he has deposed that the claimantworkman was appointed by the management as Supervisor in the month of March, 2006 and his last drawn salary was Rs.5,714/ per month; that as the claimantworkman started misbehaving with D.I.D. No. 58/09 Page No. 16 out of 35 the colleagues, disobeying his seniors and breaching the discipline of the management office many times, becoming habitual in absenting/missing from the duty during working hours after signing the attendance register, respondent/management had admonished the claimant repeatedly, however, seeing no improvement warned through a warning/notice letter dated 27.05.2008 to the workman initiating disciplinary action on the count of breach of discipline and negligence of duty as well as Disobedience & Misconduct, whereby it was informed to the claimant that he was found by his superior missing from duty during the working hours after signing the attendance register, for which claimant on one pretext or other used to give false assurance and excuses; that moreover, repeated chances to the claimant proved futile; that the workman/claimant was absenting for his own personal reasons after which he was asked to report in morning shift instead of evening shift as he was found always missing or vanishing from his job, after marking his presence in the attendance register; that he was under constant watch for 23 months by his superiors, therefore, after finding him to be guilty for non attending his duty he was shifted in morning shift instead of evening shift, however, from then onwards he started absenting himself without providing any reason or explanation; that the aforesaid acts continued for 23 months compelling the respondent to issue such D.I.D. No. 58/09 Page No. 17 out of 35 warning/notice dated 27.05.2008 to the workman, which was not adequately explained except pleading mercy by the claimant; that the respondent, however, gave another opportunity by shifting the duty from night to morning whereupon workman finding that his deceitful act cannot continue any further, has stopped attending office which elucidates the previous conduct of the workman; that it was not only the irregularity but defiance of the workman which culminated into issuance of such warning letter; that due to acts of negligence in duty and breach of discipline of the respondent, management/respondent was constrained to repudiate/terminate the services of the claimant on 09.06.2008; that thereafter, claimant issued a legal notice dated 10.06.2008 to the respondent on frivolous grounds, which was duly and appropriately replied vide demand notice dated 26.06.2008; that thereafter, claimant sent another frivolous notice dated 22.07.2008 to the respondent, which was adequately replied by reply letter dated 07.08.2008, thereby denying all the flimsy allegations under the garb of hiding claimant's own faults and negligence of duty as well as breach of disciplines in fulfilling the services.
Ex.MW1/1 being copy of a letter dated 27.05.2008 of the management to the workman; Ex.MW1/2 being copy of a letter dated 20.06.2008 of the management to the workman; Exts.MW1/3 and MW1/4 being postal registration receipts in respect of Ex.MW1/2; D.I.D. No. 58/09 Page No. 18 out of 35 Ex.MW1/5 being speed post envelope sent by the management to the workman; Ex.MW1/6 being copy of reply dated 26.06.2008 of the management to the workman; Ex.MW1/7 being postal registration receipt in its respect; Ex.MW1/8 being copy of reply dated 07.08.2008 of the management to the demand notice sent by the workman to the management dated 22.07.2008, on record; Ex.MW1/9 being postal registration receipt in its respect; Ex.MW1/10 being the authority letter given by the management in respect of the MW1 Sh. Rajeev Ranjan Singh, Senior HR Executive of the management to appear on its behalf and do the needful as mentioned therein in the instant proceedings.
This witness has been cross examined at length on behalf of the workman in management evidence, in which he has deposed that he had joined the management on 25.12.2005 as HR Assistant; that he had not brought the attendance register on that day; that he could produce the same; that it was correct that the workman had given a letter which had been received on behalf of the management on 04.06.2008; that the same is Ex.MW1/W1 bearing his signatures at point A thereon; that it was wrong to suggest that the management had not asked the workman to report for duty; that it was wrong to suggest that the workman had reported for duty with the management on several dates but the management had not kept him on duty; that it D.I.D. No. 58/09 Page No. 19 out of 35 was wrong to suggest that he had not been authorized by the Board of Directors of the management to depose on its behalf on that day; that the management was not willing to retain the workman in its services as on that day. Vol. The management was not having the requisite work to be done by the workman with it; that the management might be having 5060 employees with the management as on that day; that he could not tell as to in what manner the salary of the workman was paid to him by the management; that bonus was being paid to the workman; that he could not say as to in what manner the bonus was being paid to the workman by the management; that it was wrong to suggest that the salary/wages of the workmen who used to proceed on leave were being deducted by the management from their salary; that he could not say whether appointment letter had been issued to the workman; that it was wrong to suggest that along with letter Ex.MW1/W1 the workman had enclosed any medical certificate of his wife; that it was wrong to suggest that the workman had never been absent from his duties with the management at any point of time; that it was wrong to suggest that his affidavit filed in evidence Ex.MW1/A was false; that it was wrong to suggest that the affidavit by way of evidence filed by him Ex.MW1/A had not been prepared on his instructions and only by his advocate; that it was wrong to suggest that he had not brought the D.I.D. No. 58/09 Page No. 20 out of 35 attendance register in respect of the workman to the court on that day since the workman had never been absent from his duties with the management; that it was wrong to suggest that no document had been filed by the management in respect of the absence of the workman from his duties with the management; that it was correct that o domestic enquiry has been held by the management in respect of the absence of the workman; that it was correct that no letter in respect of holding of any enquiry on the part of the management had been issued to the workman; that it was wrong to suggest that the documents filed by the management in its evidence were false or fabricated; that it was wrong to suggest that he was deposing falsely being employee of the management.
Thereafter, management evidence has been closed, on record and the case fixed for hearing of final arguments.
However, it is seen from the record that during the pendency of the case for hearing of final arguments, an application has been moved on behalf of the management under Section 151 CPC r/w Sections 137 and 138 of Indian Evidence Act, 1872 for re examination of MW1 Sh. Rajeev Ranjan Singh, Senior HR Executive of the management in management evidence on the ground that it had wrongly been mentioned in paragraph no.5 of the affidavit by way of evidence of the MW1 Sh. Rajeev Ranjan Singh in management D.I.D. No. 58/09 Page No. 21 out of 35 evidence that the services of the workman had been terminated on the date alleged whereas it was the case of the management in its pleadings that the workman had been absenting from his duties and that accordingly an opportunity be given to the applicant/management for clarifying the said mistake in its management evidence, on record, by way of reexamination of the concerned management witness/MW1 to which reply has been filed on behalf of the respondent/workman in opposition to the same basically on the ground that the subject application had been moved on behalf of the applicant/management with a view to delay the disposal of the present case which had been fixed for hearing of final arguments after closing of the management evidence on the part of the management, on record. However, it is seen from the record that in the interest of justice as also for the just and proper adjudication and disposal of the matter in issue the subject application moved on behalf of the applicant/management has been allowed, however, subject only to deletion of paragraph no. 5 of the affidavit by way of evidence of MW1 Sh. Rajeev Ranjan Singh in management evidence as prayed and the case fixed for reexamination of the MW1 Sh. Rajeev Ranjan Singh in management evidence on the date fixed vide the relevant order passed in this regard, on record.
In his reexamination in management evidence, the MW1 Sh. D.I.D. No. 58/09 Page No. 22 out of 35 Rajeev Ranjan Singh, Senior HR Executive of the management has tendered his affidavit by way of evidence Ex.MW1/1A as also had relied upon documents already Exts.MW1/1 to MW1/10, as abovesaid, on record.
It is seen from the record that in the affidavit by way of evidence Ex.MW1/1A, the MW1 Sh. Rajeev Ranjan Singh, Senior HR Executive of the management has deposed to the same effect as he has deposed vide Ex.MW1/A in management evidence, on record, except for the deletion of the paragraph no.5 of the same.
It is seen from the record that in the cross examination on behalf of the workman of the MW1 Sh. Rajeev Ranjan Singh in his reexamination in management evidence, it has been submitted by the AR for the workman that in view of there being no change in the evidence by way of affidavit of the MW1 from his initial affidavit by way of evidence already Ex.MW1/A, and the documents already Exts.MW1/1 to MW1/10, on record, the cross examination of MW1 done on 05.06.2012 be adopted in addition to the present cross examination, in which the MW1 has deposed that the initial affidavit by way of evidence Ex.MW1/A was attested in his presence; that it was correct that he had signed the initial affidavit by way of evidence Ex.MW1/A after reading the contents of the same; that the present affidavit by way of evidence Ex.MW1/1A had been prepared at his D.I.D. No. 58/09 Page No. 23 out of 35 instance; that it was wrong to suggest that his initial affidavit by way of evidence Ex.MW1/A was correct and the present affidavit by way of evidence Ex.MW1/1A was incorrect and false; that it was wrong to suggest that his present affidavit by way of evidence Ex.MW1/1A had been filed at the stage of final arguments by way of an afterthought; that it was wrong to suggest that he was deposing falsely.
Thereafter, the management evidence has been closed, on record.
It is seen from the record that though the management has led the evidence by way of affidavit by way of evidence of its MW1 Sh. Rajeev Ranjan Singh, Senior HR Executive of the management Ex.MW1/A in the management evidence as also Ex.MW1/1A in the management evidence that the claimant/workman became habitual in absenting/missing from the duty during the working hours after signing the attendance register; that the respondent/management had admonished the claimant repeatedly, however, seeing no improvement warned through a warning/notice letter dated 27.05.2008 to the workman initiating disciplinary action on the count of breach of discipline and negligence of duty as well as Disobedience & Misconduct, whereby it was informed to the claimant/workman that he was found by his superior missing from duty during the working hours after signing the attendance register, D.I.D. No. 58/09 Page No. 24 out of 35 for which the claimant/workman on one pretext or other used to give false assurance and excuses as also to the effect that the workman/claimant was absenting for his own personal reasons after which he was asked to report in morning shift instead of evening shift as he was found always missing or vanishing from his job, after marking his presence in the attendance register; that he was under constant watch for 23 months by his superiors, therefore, after finding him to be guilty for nonattending his duty he was shifted in morning shift instead of evening shift, however, from then onwards he started absenting himself without providing any reason or explanation; that the aforesaid acts continued for 23 months compelling the respondent to issue such warning/notice dated 27.05.2008 to the workman, which was not adequately explained except pleading mercy by the claimant; that the respondent, however, gave another opportunity by shifting the duty from night to morning whereupon workman finding that his deceitful act cannot continue any further, had stopped attending office which elucidates the previous conduct of the workman (emphasis supplied), however, it is seen from the record that no evidence has been led on the part of the management in respect of the above said, allegations of misconduct/absenteeism from duties on the D.I.D. No. 58/09 Page No. 25 out of 35 part of the workman as alleged apart from leveling the said allegations against the workman vide the abovesaid affidavits by way of evidence of the MW1 Sh. Rajeev Ranjan Singh, Senior HR Executive of the management in management evidence as also by way of alleged notice/letter dated 27.05.2008 of the management to the workman Ex.MW1/1 as also alleged letter dated 20.06.2008 of the management to the workman Ex.MW1/2 to which allegations of the management against the workman it is seen from the record that the management has admitted in the cross examination of its MW1 Sh. Rajeev Ranjan Singh, Senior HR Executive of the management on behalf of the workman in management evidence that the workman had submitted reply/explanation to the management on 04.06.2008 duly received by the management Ex.MW1/W1, on record, to the effect that it is submitted respectfully by the workman that he had received a notice from the management in which it has been mentioned that he is not coming on his duties for the last 23 months which is patently false; that he had been absent from his duty only for 45 days on account of serious illness of his wife who had been mentally ill and thus his presence by her side was utmost necessary she had been so ill; that nobody in the house was able to tend to her and nor was there any lady in the house who could tend to her; that keeping these circumstances in view he had to remain with her; that D.I.D. No. 58/09 Page No. 26 out of 35 he was in the employment with the management in the night shift for the past two years during which no such occasion had ever arisen; that he requests to the management to sympathetically consider his difficulty and cancel the above said notice in his respect so that he could discharge his duties with the management to his utmost capability; that he was hopeful of getting a favourable response from the management .
It is further seen from the record that it has not been even alleged by the management that any charge sheet had been issued to the workman in respect of the abovesaid acts of misconduct alleged by the management against the workman viz. of his having allegedly absented from his duties with the management for the past 23 months or that he was found missing from his duties during the working hours after signing the attendance register and/or that the management had been receiving complaints from the head of the department of the workman that after entering his name in the attendance register maintained at the main gate he was not reporting to him for duty and that even though thorough searches were allegedly carried out but he was always untraceable and nor he was performing any kind of duty after signing in the attendance register which was against the basic norms of the employment and therefore, he was not entitled for salary for such mock attendance vide alleged D.I.D. No. 58/09 Page No. 27 out of 35 warning letters dated 27.05.2008 and 20.06.2008 of the management Exts.MW1/1 and MW1/2 respectively to the workman even though alleging in the same viz. Ex.MW1/1 that his continuous unauthorized absence from work comes within the purview of breach of discipline and negligence of duty which admittedly being a misconduct as alleged and admitted by the management vide its abovesaid pleadings/submissions/assertions by way of its written statement to the statement of claim of the workman in the instant proceedings and affidavits by way of evidence of MW1 Sh. Rajeev Ranjan Singh, Senior HR Executive of the management Exts.MW1/A and MW1/1A in management evidence as also alleged warning letters dated 27.05.2008 and 20.06.2008 Exts.MW1/1 and MW1/2 in the management evidence, on record, required issuance of charge sheet on the part of the management to the workman and holding of a valid domestic enquiry on the part of the management in respect of its abovesaid allegations of misconduct against the workman which admittedly it is seen from the record has neither even been alleged nor proved on the part of the management as also it is further seen from the record that no material or tangible evidence has been led on the part of the management by way of production of attendance records, complaints of any alleged superiors of the workman against him in this regard or any other document/evidence in substantiation of its D.I.D. No. 58/09 Page No. 28 out of 35 said allegations of misconduct against the workman in its management evidence, on record, apart from Exts.MW1/1 and MW1/2 alleged warning letters of the management to the workman in this regard which I find are mere allegations of the management against the workman in respect of his alleged acts of misconduct as mentioned therein without the same having been proved on the part of the management against the workman in the absence of issuance of any charge sheet on the part of the management to the workman or holding of any valid domestic enquiry on its part in his respect in respect of the same, on record, as it is seen from the record that it has been admitted by the MW1 Sh. Rajeev Ranjan Singh, Senior HR Executive of the management in the management evidence when he states in his cross examination on behalf of the workman in the management evidence that it was correct that no domestic enquiry has been held by the management in respect of the absence of the workman; that it was correct that no letter in respect of holding of any enquiry on the part of the management has been issued to the workman (emphasis supplied), which it is found was necessarily to be held on the part of the management in respect of the workman in the nature of its allegations against the workman of his being allegedly absent from his duties with the management for the period alleged and/or being not attending to his duties despite signing the attendance D.I.D. No. 58/09 Page No. 29 out of 35 register as alleged vide Exts. MW1/1 and MW1/2 of the management in the management evidence, as above said, with the further admission on the part of the management in Ex.MW1/1 that the alleged continuous unauthorized absence from the work of the workman comes within the purview of breach of discipline and negligence of duty as also vide Ex.MW1/2 of the management in the management evidence with the subject 'Non performance of Duty' with the allegation that the workman after entering his name in the attendance register maintained at the main gate of the management was not reporting to his head of department for duty and that even though thorough searches were allegedly carried out but he was always untraceable; that he was not performing any kind of duty after signing in attendance register which was against the basic norms of employment; that therefore, he was not entitled for salary for such mock attendance, which allegations thereby being admittedly misconduct necessarily required issuance of charge sheet on the part of the management to the workman and holding of a valid domestic enquiry on its part against the workman to establish the same which as already observed, hereinabove, has not even been alleged and or done/proved on the part of the management, on record and nor any evidence led by the management in its management evidence in this regard, on record.
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Admittedly, in view of the settled position in law to the effect that abandonment being not a temporary absence but being a total and complete giving up of duties so as to indicate an intention not to resume the same (emphasis supplied) as held by the Hon'ble Supreme Court of India vide citation AIR 1979 SC 582; G.T. LAD and others, Appellants vs. M/s Chemical and Fibres of India Ltd., Respondent as also abandonment being admittedly also a facet of misconduct necessitating holding of an enquiry as held by the Hon'ble Supreme Court of India vide citation MANU/SC/0529/1993 (JT 1993 (3) SC 617) D.K. Yadav Appellant vs. J.M.A. Industries Ltd. Respondent as also by the Hon'ble High Court of Delhi vide citations 2010 (117) DRJ 433 Anil Chuttani, Appellant vs. The Oil and Natural Gas Corporation, Respondent; 2010 LLR 312 Hindustan Associates Engineers Pvt. Ltd. vs. Sh. K.K. Aggarwal; MANU/DE/0541/2005 Shakuntla's Export House (P) Ltd. vs. Secretary (Labour); Mount Carmel School vs. The Presiding Officer, Labour Court NoX, Karkardooma Courts, Delhi and Others, which factum viz. holding of an enquiry into the alleged absence of the workman from his duties with the management, as above said, I find from the record has neither even been averred by the management in the instant proceedings nor proved in the same, on D.I.D. No. 58/09 Page No. 31 out of 35 record, as also observed hereinabove, and accordingly, I find that the allegations of the management against the workman in respect of his allegedly being absent from his duties with the management and/or misconducting in respect of the same as alleged have not been proved on the part of the management in the instant proceedings, on record.
In view of my abovesaid observations and findings, I find from the record that the workman by way of his affidavit by way of evidence Ex.WW1/A in workman evidence as also Exts. WW1/1 to WW1/10 in the workman evidence, as abovesaid, on record, has been able to prove that his services have been terminated on the part of the management on 09.06.2008 as alleged by him. Admittedly by virtue of the workman being in the continuous employment of the management w.e.f. March, 2006 till 09.06.2008 (the date on which he alleges that his services have been illegally terminated on the part of the management) by virtue of the management having not disputed the same claiming the workman to being allegedly absent from his duties with the management during the period alleged as is evident from the contents of the management Exts.MW1/1 and MW1/2 in the management evidence as also having admitted in its written statement to the statement of claim of the workman; that the claimant/workman was working with the management since March, 2006 on the last D.I.D. No. 58/09 Page No. 32 out of 35 drawn salary of Rs. 5,714/ per month as alleged by the workman which defence of the management has been held to be not proved, on record, as abovesaid, it is seen from the record that the workman has completed the required 240 days of service with the management in the year preceding the date of his alleged termination of service on the part of the management as alleged viz. 09.06.2008 in the instant case as required vide the provisions of Section 25B of the Industrial Disputes Act, 1947 thereby being entitled to the protection of the provisions of Section 25 F of the Industrial Disputes Act, 1947, (as amended upto date) as on the said date, which I find from the record have not been complied with on the part of the management qua the workman on the said date, in view of its defence of the workman being allegedly absent/irregular in his duties with the management during the said period which defence of the management has been held to be not proved, on record, as already observed, hereinabove, and accordingly, the termination of the services of the workman on the part of the management on 09.06.2008 as alleged by the workman is held to be illegal.
Issue no.2.
It is seen from the record that the workman has alleged in no uncertain terms in his statement of claim as also by way of affidavit by way of evidence Ex.WW1/A in the workman evidence, on record D.I.D. No. 58/09 Page No. 33 out of 35 that he had been unemployed from the date of the termination of his service on the part of the management and despite having made several efforts to secure alternative employment, he has been unable to secure any to which allegations/assertions of the workman, I find from the record there is no specific refuttal/rebuttal on the part of the management in its written statement to the statement of claim of the workman, on record, except for a bald denial, what to say of there being any allegation on the part of the management of the workman being gainfully employed during the relevant period in the same or in the cross examination of the workman WW1 on behalf of the management in workman evidence or even in the affidavits by way of evidence Exts. MW1/A and MW1/1A of the MW1 Sh. Rajeev Ranjan Singh, Senior HR Executive of the management in the management evidence or even leading of any evidence on behalf of the management in this regard in its management evidence, on record, the onus of proving of which factum was admittedly upon the respondent/management and which in view of my observations here inabove, I find from the record has not been proved on the part of the management, on record, and accordingly in the above facts and circumstances of the case, it is felt appropriate that the relief of reinstatement in service, however, along with 50% of backwages and continuity of service be awarded to the workman against the D.I.D. No. 58/09 Page No. 34 out of 35 management since it cannot be held that the workman has remained totally unemployed during the period with effect from the date of termination of his services on the part of the management as alleged till the date of passing of award.
The Award is passed. The Ahlmad is directed to send six copies of this award to the appropriate Government. The file be consigned to the Record Room.
Announced in the open court (Chandra Gupta)
on 31.07.2013 Presiding Officer Labour CourtX
Karkardooma Courts, Delhi.
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