Delhi District Court
Vikram Singh Rawat S/O. Sh. Betal Singh ... vs M/S. Formula One Corporate Solutions ... on 29 June, 2015
Vikram Singh Rawat Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 17/12
BEFORE LABOUR COURT - XI: KARKARDOOMA COURTS: DELHI
PRESIDING OFFICER: Mr. ANAND SWAROOP AGGARWAL
(Delhi Higher Judicial Service)
(Additional District & Sessions Judge, Delhi)
REFERENCE CASE (ID) NO. 17/12
UNIQUE CASE IDENTIFICATION NO. 02402C0022062012
In the matter of:
Vikram Singh Rawat s/o. Sh. Betal Singh Rawat,
R/o. 20/383, Dakshinpuri, New Delhi.
New Address:
20/526, DDA Flats, Dakshin Puri, Delhi
C/o. Sh. Asgar Ali and Sh. G. C. Joshi Advocates,
Chamber No. 29495, Civil Wing,
Tis Hazari Court, Delhi110054. ......... Workman/Claimant
Vs.
M/s. Formula One Corporate Solutions Pvt. Ltd.
(Presently: M/s. Formula Corporate Solutions India Pvt. Ltd.)
2/6, 2nd Floor, West Patel Nagar,
Delhi110008. ........ Management
Date of institution : 10.01.2012
Date of reserving for award : 01.06.2015
Date of award : 29.06.2015
AWARD:
1.TERMS OF REFERENCE Vide Order No. F3(275)/11/Ref./WD/LAB/928 dated 27.12.2011 Deputy Labour Commissioner (West District), Labour Department, Government of N.C.T. of Delhi, Delhi referred following industrial dispute between workman Vikram Singh Rawat S/o Sh. Betal Singh Rawat, R/o. 20/383, Dakshinpuri, New Delhi C/o. Sh. Asgar Page 1 of 23 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Vikram Singh Rawat Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 17/12 Ali and Sh. G. C. Joshi Advocates, Chamber No. 29495, Civil Wing, Tis Hazari Court, Delhi110054 and management M/s. Formula One Corporate Solutions Pvt. Ltd., 2/6, 2nd Floor, West Patel Nagar, Delhi110008 u/s. 10(1) (c) and 12(5) of the Industrial Disputes Act, 1947 vide Govt. of NCT of Delhi, Labour Department Notification No. F.1/31/616/Estt/2008/7458 dated 03.03.2009 for adjudication by this court : ''Whether the superannuation given to Sh. Vikram Singh Rawat S/O Sh. Betal Singh Rawat by the management is legal or his services have been terminated illegally and /or unjustifiably by the management; and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. CASE OF THE WORKMAN AS PLEADED IN THE STATEMENT OF CLAIM.
(i) The workman was in continuous service under the management at the post of 'Driver' and workman performed his duties honestly and no adverse order, report or remark was ever made against the workman during his employment. The last drawn salary of the workman is Rs. 9,568/ per month.
(ii) The workman received letter dated 13.04.2010 issued by the management in respect of "Superannuation Retirement". The correct and exact date of birth of the workman is 15th day of June 1958 and this has been duly shown always in the government records as well as the records of the management, therefore, the workman cannot be retired by way of superannuation and his date of retirement would be 15.06.2016. The management has been doing colourable exercise of power while passing superannuation of the workman and the order of termination of the workman is illegal.
(iii) The workman being a member of Delhi Private Car Drivers Union and hence after receiving the abovesaid illegal letter, the workman agitated against the illegal acts Page 2 of 23 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Vikram Singh Rawat Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 17/12 of the management and sent a notice dated 18.05.2010, through union, thereby calling upon the management to recall/withdraw the said letter of superannuation retirement of the workman. But despite the service of the said legal notice the management failed to comply with the terms of notice and did not allow the workman to resume on his duties w.e.f. 01.07.2010.
(iv) The workman at no point of time ever represented that his date of birth is 15.06.1952. The workman has always represented and mentioned his date of birth as 15.06.1958 which is very much clear from the documents filed by the workman i.e. PAN Card, Ration Card, Driving License, ESI Card, Letter of Confirmation from M/s.
Sumitomo Shoji Kaisha, Ltd dated 01.03.1986, Notice of salary dated 1.04.1987.
(v) The services of the workman have been wrongly, deliberately and with malafide intention terminated on the ground of superannuation by the management.
(vi) The workman represented that workman is entitled to the reinstatement in his services back alongwith full benefits and continuity of services yet, without prejudice to this rights, workman is eligible to receive his legal dues alongwith following amounts:
a. Entire earned wages up to this date.
b. Wages for earned leave.
c. One month's notice pay in lieu of the notice.
d. Payment of gratuity as per the Payment of Gratuity Act, 1972.
e. Payment of bonus under the Payment of Bonus Act, 1965.
(vii) The workman further sent a demand notice on dated 09.08.2010 through
registered AD, which was duly served upon the management, but to no effects. Page 3 of 23 (ANAND SWAROOP AGGARWAL)
POLCXI/KKD/DELHI/29.06.2015 Vikram Singh Rawat Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 17/12
(viii) The workman is jobless since his termination and could not get any job despite several efforts. The workman is at the verge of starvation and the management is liable for the same.
With these averments, workman prayed for passing appropriate order whereby the management be directed to reinstate the workman in earlier place of work, with full back wages, all other benefits alongwith consequential relief and benefits and continuity of service in favour of the workman.
3. STAND OF THE MANAGEMENT AS PLEADED IN THE WRITTEN STATEMENT OF DEFENCE.
Management took certain preliminary objections such as that (i) since claimant has never been terminated by the management at any point of time, the dispute raised by the claimant is not an 'industrial dispute', hence, the same being not legally maintainable, is liable to be rejected; (ii) since the dispute raised by the claimant does not fall under the definition of 'industrial dispute' as defined u/s. 2(k) of the Industrial Disputes Act, 1947 nor the same is covered under as deemed 'industrial dispute' under the definition of section 2A of the Industrial Disputes Act, 1947, the same is not legally maintainable under the provisions of Industrial Disputes Act 1947, is, therefore, not a valid dispute to be entertained or adjudicated; (iii) since the claimant has never been dismissed, discharged, retrenched or otherwise terminated by the management, who has been legally and validity retired from the services on reaching his age of superannuation, the dispute without having been espoused by substantial number of workmen employed in the establishment is not an 'industrial dispute' and is, therefore, not legally maintainable and (iv) the dispute against "M/s. Formula One Corporate Solutions" is not legally maintainable as the correct name of the management is Page 4 of 23 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Vikram Singh Rawat Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 17/12 "Formula Corporate Solutions Pvt. Ltd.".
ON MERITS, while denying the case as pleaded by workman in the statement of claim, management pleaded that claimant joined the services of management w.e.f. 01.12.2006 as 'driver'. Workman joined the services of the management w.e.f. 01.12.2006 and as per terms and conditions of his employment the workman was to be retired from the services on reaching the age of 58 years. It is wrong that the date of birth of workman was 15.06.1958. Infact, as per documents submitted by workman to the management at the time of his employment, the date of birth of workman is . 15.06.1952 and on the basis of this the workman has validly and legally been retired from the services of the management w.e.f. 30.06.2010 (i.e. on reaching his age of 58 years). The decision of the management in regard of his retirement vide letter dated 13.04.2010 was, therefore, bonafide and genuine and cannot be said to be false, frivolous and baseless, as alleged. Management replied the notice dated 18.05.2010 vide reply dated 31.05.2010 and made the claimant aware about true facts. The claimant vide management's reply dated 31.05.2010 was given opportunity to submit his authentic documents to prove his version but workman could not submit any document(s) to the satisfaction of the management to prove his new date of birth as correct and it was abundantly clear that the claimant after receipt of letter dated 13.04.2010 with regard to his retirement tried to cook up a false story that his actual date of birth is 15.06.1958 and not 15.06.1952 and workman got sent a notice dated 18.05.2010. Management further pleaded that since there were various contradictions in the documents submitted by the workman to this effect, the decision of the management treating his date of birth 15.06.1952 as his correct date of birth was justified and workman has been rightly retired from the service. The action of management is, therefore, bonafide and without any malafide intention or motive. The Page 5 of 23 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Vikram Singh Rawat Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 17/12 claimant cannot be allowed to taken benefits of his own mistakes/errors and no request in regard to change in the date of birth could have been accepted at the fag end of his service. It is also pertinent to mention here that claimant even prior to his effective date of retirement (i.e. 30.06.2010) stopped reporting for his duties w.e.f. 12.05.2010 and did not report for his duty despite receipt of letters dated 22.05.2010 and 08.06.2010 sent by management advising him to report for duty. Workman never reported for his duty w.e.f. 12.05.2010 and thus remained unauthorisedly absent from his duty till 30.06.2010. Although workman was rightly retired from the service by the management, the claimant, without prejudice, was given offer to join the service of the management during the conciliation proceedings vide reply to the claim of the claimant, the claimant did not bother to resume his service which clearly indicated that the claimant was no more interested in the employment and workman had filed the claim only with a view to harass and blackmail the management to extort the money from the management on the basis of false and baseless grounds. Management in the WS, without prejudice to its rights and contentions on merits, submitted that in case the workman is really interested in employment with the management, workman can come and join duty immediately on the same post but subject to his being medically fit for the job failing which it shall be presumed that the claimant is in fact not interested in the employment and the said claim has been filed by workman to extort money from the management on such false and baseless grounds. Since the workman has never been terminated by the management and workman has been validly and legally retired from the services on reaching the age of superannuation, the question of reinstatement in service does not arise. Even otherwise, the prayer of workman for the amount of gratuity and bonus cannot be entertained in present claim as entitlement and grant of gratuity and bonus, if any, can be adjudicated by the forum/authority appointed under Page 6 of 23 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Vikram Singh Rawat Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 17/12 the Payment of Gratuity Act, 1972 and Payment of Bonus Act, 1965. Since false and base less notice dated 09.08.2010 was got sent by the claimant raising the same issues which had earlier been decided, the same was not liable to be replied. Had the workman been really jobless workman would have definitely accepted the offer of employment given by the management in its reply during conciliation proceedings. The workman despite offer did not bother to resume his duties with management which clearly proved that workman was not interest in the employment of the management and workman is/was gainfully employed somewhere else. At last management prayed for passing an award in favour of management and against the claimant.
4. REJOINDER Workman filed rejoinder to the WS of the management denying the stand taken by the management and reaffirming the averments made in the statement of claim.
5. ISSUES Vide order dated 16.07.2012 following issues were framed:
(i) As per terms of reference.
(ii) Relief. 6. EVIDENCE
Workman appeared in the witness box as WW1 Vikram Singh Rawat and filed his examinationinchief vide affidavit Ex. WW1/A. Workman relied upon documents:
Ex.WW1/1 Legal Notice dated 09.08.2010; Ex.WW1/2 - Reminder dated 09.09.2010 to legal notice dated 09.08.2010 sent to management by workman; Ex.WW1/3 PAN Card of workman; Ex.WW1/4 Driving Licence of workman valid up to 14.09.2012; Ex.WW1/5 Photocopy of Ration Card; Ex.WW1/6 (also exhibited as Ex.MW1/1) Superannuation Retirement Letter dated 13.04.2010 issued by management to Page 7 of 23 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Vikram Singh Rawat Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 17/12 workman; Ex.WW1/7 (also exhibited as Ex.MW1/2) - Notice dated 18.05.2010 written to management by union; Ex.WW1/8 ESIC Card of workman; Ex.WW1/9 Notice of salary dated 01.04.1987 issued by M/s. Sumitomo Corporation and Ex.WW1/10 Letter of Confirmation dated 01.03.1986. Document Ex. WW1/7 was objected to by ld. counsel for management as the same is photocopy. Workman in his crossexamination was confronted with documents Ex.WW1/M1X Letter of appointment dated 01.12.2006; Ex.WW1/M2X Driving License of workman valid up to 05.09.2006;
Ex.WW1/M3X Driving Licence of workman valid upto 17.09.2008; Ex.WW1/M4X Letter of Warning dated 22.05.2010 issued by management to workman; Ex.WW1/M5X Letter of Warning dated 08.06.2010 issued by management to workman; Ex.WW1/M6X Reply filed on behalf of management to the statement of claim before Conciliation Officer and Ex.WW1/M7X (also exhibited as Ex.MW1/3) - Reply of management to letter dated 16.05.2010 received from Delhi Private Car Driver Union.
Management examined MW1 Mr. Deepak Kumar, Asst. Manager (HR) of the management and Mr. Pradeep Kumar, MTS / Clerk, Office of the Deputy Labour Commissioner, Labour Department, FBlock, Karampura, New Delhi. MW1 Mr. Deepak Kumar tendered his examinationinchief vide affidavit Ex. MW1/A and relied upon documents: Ex.MW1/1 (also exhibited as Ex.WW1/6) Superannuation Retirement letter dated 13.04.2010; Ex.MW1/2 (also exhibited as Ex.WW1/7) Letter dated 18.05.2010 written to management through union; Ex.MW1/3 (also exhibited as Ex.WW1/M7x) Letter dated 31.05.2010 sent to workman by management; Ex.MW1/4 & Ex.MW1/5 Photocopies of Postal receipts; Ex.MW1/6 UPC; Ex.MW1/7 Affidavit of workman; Ex.MW1/8 Warning Letter dated 22.05.2010 issued by management to workman; Ex.MW1/9 Registry Receipt; Ex. MW1/10 UPC and Page 8 of 23 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Vikram Singh Rawat Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 17/12 Ex.MW1/11 Another UPC. Management witness MW1 Mr. Deepak Kumar in his crossexamination was confronted with documents: Ex. MW1/W1X (8 pages) Letter of Appointment dated 15.04.2004; Ex.MW1/W2X Memorandum and Articles of Association; Ex.MW1/W3X Letter dated 26.09.2007 sent by management to workman regarding change of address and Ex.MW1/W4X Board Resolution.
7. MANAGEMENT'S APPLICATION FOR DIRECTION TO THE WORKMAN FOR JOIN DUTY WITH THE MANAGEMENT IN VIEW OF THE OFFER GIVEN TO HIM IN WRITTEN STATEMENT On 16.09.2013 an application was moved by management for directions to the workman to join duties with the management. Workman filed reply to the same. On 15.10.2013 this application was disposed off with the following observations: "4. In the case in hand the Management has offered to reinstate the workman in service subject to his being medically fit and without prejudice to the rights and contentions of the Management in the WS. On the other hand, the workman is interested to be reinstated but with full back wages. This court cannot order the workman to join the services with the Management when the workman is not willing to join the services of the Management without getting full back wages. Issue as regards back wages deserves to be decided after both the parties have been made to avail opportunity to lead their respective evidence. At this stage no order can be made for grant of back wages to the workman. What is the net effect of respective contentions made in the application in hand and its reply cannot be commented upon at this stage and a decision in this regard can be taken by the court at the time of final adjudication of this matter regarding the back wages etc. With these observations the application moved by the Management stands disposed off."
8. ARGUMENTS I have heard Sh. Deepak Arora, Adv. for workman and Sh. K. K. Makhija Adv. for the management and perused the record.
Ld. counsel for management relied upon case laws reported as (i) Devi Prasad Page 9 of 23 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Vikram Singh Rawat Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 17/12 Vs. Taj Sats Air Catering Ltd. 2014 LLR 604; (ii) Union of India Vs. Ram Sua Sharma C. A. No. 3626/1996 dated February 15, 1996; (iii) Amco Batteries Ltd., Bangalore Vs. Mariappa 2006 LLR 927; (iv) Gurcharan Singh Sethi Vs. Union of India and Others 2002 - IV - LLJ (Suppl) 716; (v) State of Haryana Vs. Satish Kumar Mittal and Another (2010) 9 SCC 337; (vi) G. M., Bharat Coking Coal Ltd., West Bengal Vs. Shib Kumar Dushad and Others (2000) 8 SCC 696; (vii) Regional Provident Fund Commissioner Vs. Bhavani 2008 LLR 661; (viii) Hindustan Lever Ltd. Vs. S. M. Jadhav and Another (2001) 4 SCC 52; (ix) Managing Director, Orissa Textile Mills Ltd. & Ors. Vs. Mandardhar Naik II 1996 LLJ 748; (x) Central P & D Inst. Ltd. Vs. Union of India and Another (2005) 9 SCC 171; (xi) Asstt. Engineer, Rajasthan Dev. Corp. & Anr. Vs. Gitam Singh 2013 LLR 225; (xii) Span India Pvt. Ltd. Vs. Ram Sunder and Anr. decided on 5 October, 2006 by Hon'ble Mrs. Justice Manju Goel, Judge, Delhi High Court; (xiii) M/s. Purafil Engineers, Pune Vs. Shaikh Anwar Abdul Rahman 2000 LLR 268; (xiv) Ms/. Trina Engineering Company (P) Ltd. Vs. The Secretary (Labour) & Ors. 2006 LLR 51; (xv) R. K. Kitchen Equipments, Mumbai Vs. Majid Yusuf Hurape & Ors. 2003 LLR 920; and (xvi) General Manager, Haryana Roadways Vs. Rudhan Singh (2005) 5 SCC 591. Material on judicial file perused. 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. I have also perused the abovesaid case laws with utmost regards with a query in mind as regards their applicability by in the totality of - facts and circumstances of this case keeping in mind the doctrine / principles of precedents.
9. My ISSUEWISE FINDINGS are as under: ISSUE No.1: As per terms of reference.
Page 10 of 23 (ANAND SWAROOP AGGARWAL)
POLCXI/KKD/DELHI/29.06.2015 Vikram Singh Rawat Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 17/12 (''Whether the superannuation given to Sh. Vikram Singh Rawat S/O Sh. Betal Singh Rawat by the management is legal or his services have been terminated illegally and /or unjustifiably by the management; and if so, to what relief is he entitled and what directions are necessary in this respect?") Management has taken a preliminary objection to the effect that dispute raised by claimant does not fall under the definition of 'industrial dispute' u/s. 2(k) of the Industrial Disputes Act, 1947 nor the same is covered u/s. 2A of the Industrial Disputes Act, 1947 and, therefore, the same is not legally maintainable under the provisions of the Industrial Disputes Act, 1947. HERE admittedly / undisputedly age of retirement of workman from the employment under the management is 58 years. As per workman his correct and exact date of birth is 15th June 1958 and his date of retirement from the employment under the management would be 15.06.2016. On the other hand, as per the management, as per documents submitted by the workman to the management at the time of his employment the date of birth of workman is 15.06.1952 and on the basis of this the workman has validly and legally been retired from the services of the management w.e.f. 01.07.2010 (i.e. on reaching his age of 58 years). It is in this background that abovesaid reference has been made by appropriate govt. for adjudication by this Court. Section 2A (1) of the Industrial Disputes Act, 1947 reads as under : "2A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute : (1) Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute."
It is not a case of discharge or dismissal of the workman. As the defence / stand Page 11 of 23 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Vikram Singh Rawat Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 17/12 taken by management suggests it is not even a case of 'retrenchment' inasmuch as case of workman is covered under proviso (b) to section 2(oo) of the Industrial Disputes Act, 1947 which defines the term 'retrenchment'. As per section 2A(1) of the Industrial Disputes Act, 1947, any dispute or difference between the individual workman and his employer connected with, or arising out of, discharge, dismissal or retrenchment or otherwise termination shall be deemed to be an individual industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute. Here vide Ex. MW1/1 - Letter of Superannuation Retirement dated 13.04.2010 workman has been made to retire w.e.f. 01.07.2010 on the ground of workman allegedly attaining the age of superannuation i.e. 58 years. Workman is disputing the same. Thus, it can be said that there exists dispute or difference between the workman (the individual workman) and the management as regards retrenchment or otherwise termination of services of workman. Abovesaid document Ex. MW1/1 has / had the effect of terminating (bringing to an end) the services of workman by the management. In any case there is dispute / difference between the workman (the individual workman) and the management whether this case is covered u/s. 2 (oo)(b) of the Industrial Disputes Act, 1947 or not. Thus, case of the workman herein is held to be covered u/s. 2A(1) of the Industrial Disputes Act, 1947. Case law Devi Prasad Vs. Taj Sats Air Catering Ltd. relied upon by ld. counsel for management with regard to preliminary objection under consideration has no application in this case. In the said case workman had approached the Industrial Tribunal prior to his retirement with the contention that since the similarly situated employees and drivers of Taj Sats Care Catering Ltd. at Mumbai are being retired at the age of 60 years, he should not be retired at the age of 55 years, that too, without any pensionary benefits etc. Here workman has approached after workman stood retired by the management.
Page 12 of 23 (ANAND SWAROOP AGGARWAL)
POLCXI/KKD/DELHI/29.06.2015 Vikram Singh Rawat Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 17/12 Workman in his crossexamination as regards his address deposed as under : "I am residing at the address 20 / 526, DDA Flats, Dakshin Puri, Delhi for the last 5 6 years. This is my own house. Prior to this I was residing at 20 / 383, DDA Flats, Dakshin Puri, Delhi.
At the time of filing of my affidavit I was residing at 20/383, DDA Flats, Dakshin Puri, Delhi.
At this stage the evidence affidavit, Ex.WW1/1 showing address 20/383, DDA Flats, Dakshin Puri, Delhi, Memo of Parties, Affidavit in support of claim, authority letter, legal notice Ex.WW1/2, legal notice dated 09.08.2010.
It is wrong to suggest that I deliberately did not mention the correct address in the above documents and has filed false affidavit and documents in this regard..."
Further, MW1 Mr. Deepak Kumar in his cross - examination deposed that, "..... In the year 2010, the management had both the address of workman i.e. 20/383, DDA Flats, Dakshin Puri, New Delhi - 62 and 20/526, DDA Flats, Dakshin Puri, New Delhi - 62 in its record. ........ I have brought the copy of letter dated 26.09.2007 issued by the management to the workman seeking information regarding change in address, if any, of the workman. The said letter was duly filled in by the workman at the bottom showing his old and new address duly signed by him. The copy of the said letter is Ex. MW1/W3X. I cannot say as to whether the address written at point A & B are filled in by any of the officer of the management or by the workman. I cannot identify the handwriting of the workman. The said document was never issued nor filled in my presence as I was not in the employment of management at that time, the statement in regard to the said document is only on the basis of records........".
Hence workman during his employment with management did inform the management regarding his new address. In this background, the above referred depositions made by workman regarding his address(es) are to no legal consequences. Page 13 of 23 (ANAND SWAROOP AGGARWAL)
POLCXI/KKD/DELHI/29.06.2015 Vikram Singh Rawat Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 17/12 Matter can also be looked from another perspective. Here address of workman is not a determinative factor for determination of dispute involved herein. Thus, inconsistent / incorrect depositions made by workman as regards his address cannot be taken to be having any effect on the entitlement or otherwise of the workman on the merits of the case.
Admittedly / undisputedly age of retirement of claimant from the employment of management is 58 years. However claimant and management are at issue as regards date of birth of claimant. As per workman his date of birth is 15.06.1958. But as per management date of birth of workman is to be treated as 15.06.1952. Thus, there is consequential issue / dispute as regards date of retirement of claimant and, hence, the present reference. Obviously burden of proof lies on the workman to prove the averments made in the statement of claim. The burden is on the workman to establish the same by placing acceptable and clinching material in support thereof. Workman in his cross - examination has deposed that, ".... It is correct that I had joined the services of management w.e.f. 01.12.2006 as a Driver. At the time of my joining I was issued an appointment letter 01.12.2006. The witness shown Ex.WW1/M1x i.e. appointment letter and he admits his signatures on each and every page of the said appointment letter......". Clause 14 of the Letter of Appointment Ex. WW1/M1x reads as under : "14. Your date of birth mentioned in the matriculation/higher secondary certificate shall be deemed to be correct and conclusive proof of your date of birth. No request in regard to the change in date of birth at the fag end of service will be entertained."
On 03.02.2015 this Court passed the following order : "I.D. NO.17/12 03.02.2015 Page 14 of 23 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Vikram Singh Rawat Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 17/12 Present: Workman with Mr. Deepak Arora, Adv.
Mr. K K Makhija, Adv. for management with Mr. Deepak Kumar, Asst. Manager (HR).
At the outset ld. counsel for management submitted that workman should be asked about his qualifications. Workman was asked about his qualifications and he stated that he is high school fail. Court had asked the workman whether he can produce his high school certificate which must have been containing as per practice his date of birth can be produced by the workman or not. Workman expresses his inability to produce the said certificate.
Final arguments heard for about 45 minutes before lunch and 2 hours after lunch. At this stage ld. counsel for workman submitted that workman shall try to search out his high school certificate. The same can be submitted at any time prior to passing of award. However, if said certificate is filed before the Court an opportunity for hearing shall be granted to ld. counsel for management.........."
On 20.04.2015 ld. counsel for workman submitted that high school certificate of the workman is not traceable.
Clause 14 of the appointment letter of workman / contract of employment of workman with the management provided that date of birth mentioned in the matriculation / higher secondary certificate shall be deemed to be correct and conclusive proof of date of birth of workman. Workman despite his having qualifications of high school fail and, thus, having the possibility of production of matriculation certificate as a proof of his date of birth has neither produced the same nor summoned any witness from the school to bring his date of birth as per his school records on judicial file. Workman has not done so at any stage since his employment with the management till this date and despite the order dated 03.02.2015. If the workman can retain / possess documents like Ex. WW1/9 (dated April 01, 1987) and Ex. WW1/10 (dated 1st March, 1986), in all likelihood the possibility of workman Page 15 of 23 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Vikram Singh Rawat Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 17/12 possessing his high school certificate, which is a document of vital importance for every person, cannot be ruled out altogether. This all lays down the foundation of drawing an adverse inference against the workman to the effect that if the workman would have produced high school certificate or summoned witness from the school to bring on judicial record his date of birth as per records of school, the same would have gone against the workman.
Workman in his crossexamination deposed that ".... I used not to provide copy of my driving licence to the management as and when renewed. Ex. WW1/M2x is a copy of my driving licence. It is correct that the said Driving Licence was given to the management by me at the time of my employment....".
Driving licence Ex. WW1/M2x is in respect of LMV (Comm.) and mentions the Date of Birth of workman as 15.06.1952.
Workman in his crossexamination also deposed that ".... Ex. WW1/M3x shown to the witness and he admits that he has filed this document alongwith the statement of claim. He admits that the said driving licence is his own licence for the period of 2002 to 2008. Ex.WW1/M3x is for driving scooter and Ex.WW1/M2x is for driving cars. I did not submit Ex.WW1/M3x to the management...........". Further workman in his crossexamination deposed that "...... I was a driver of cars and not motorcycles. I never submitted motorcycle license to the Management.....". Ex. WW1/M3x is in respect of vehicle class: MCYL and mentions the date of birth of workman as 15.06.1958. But same is inconsequential inasmuch as workman admittedly did not submit Ex. WW1/M3x to the management.
Workman in his crossexamination deposed that, ".... Even for making my licence Ex. WW1/M2x I had submitted my ration card to the Transport Authority. I had given representation to the transport authority regarding mentioning of incorrect date Page 16 of 23 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Vikram Singh Rawat Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 17/12 of birth in Ex. WW1/M2x. I don't have any document to show that I had ever written to concerned authorities regarding wrong date of birth in driving licence....". Ration Card Ex. WW1/5 mentions only the year of birth of workman as 1958 and it does not mention the date of birth of workman as 15.06.1958 or otherwise. Thus, it cannot be said that transport authority mentioned the date of birth of workman in Ex. WW1/M2x on the basis of ration card Ex. WW1/5 because as a matter of fact ration card Ex. WW1/5 does not at all mention the date of birth of workman as 15.06.1958 or otherwise.
Driving Licence Ex. WW1/4 is driving licence of workman mentioning date of birth of workman as 15.06.1958. As per workman this is renewed licence of Ex. WW1/M2x. But both mention different date of birth of workman. Ex. WW1/M2x mentions it as 15.06.1952 and Ex. WW1/4 as 15.06.1958. Admittedly workman used not to provide copy of his driving licence to the management as and when renewed. In this regard MW1 Mr. Deepak Kumar has been made to depose as under : ".......As a normal practice, the drivers engaged by the management used to submit the copy of renewed licenses to the management. It is not necessary that the service of the driver is continued only if he submits his renewed license. It is wrong to suggest that copy of Ex. WW1/4 was given to the management as renewal of Ex. WW1/M2X. (vol. the said document Ex. WW1/4 bears D/L number and address as mentioned on Ex. WW1/M2X and these documents are different)........".
When workman did not provide copy of allegedly renewed licence to management, obviously management could not have taken into account the date of birth as mentioned in Ex. WW1/4. Also workman has not brought on record any acceptable and clinching proof of his date of birth as 15.06.1958 in the form of school records etc. on the basis of which workman could have got mentioned his date of birth as 15.06.1958 in the driving licence Ex. WW1/4.
Page 17 of 23 (ANAND SWAROOP AGGARWAL)
POLCXI/KKD/DELHI/29.06.2015 Vikram Singh Rawat Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 17/12 ESI Card Ex. WW1/8 of workman mentions the date of birth of workman as 15 Jun1958. But as per case laws reported as Amco Batteries Ltd. Banglore Vs. Mariappa and Managing Director, Orissa Textile Mills Ltd. & Ors. Vs. Mandardhar Nail relied upon by ld. counsel for management this entry cannot be the basis of allowing the claim of workman and / or cannot be taken as a conclusive circumstances as regards date of birth of workman. In this case there is no need for conducting any enquiry as was ordered in case law of Managing Director, Orissa Textile Mills Ltd. & Ors. Vs. Mandardhar Naik inasmuch as despite opportunity given workman has failed to produce matriculation certificate or to summon any witness to prove his date of birth as per records of school on judicial file. This is despite the observations already mentioned hereinabove regarding clause 14 of the appointment letter of workman. On the similar grounds even Ex. WW1/3 (PAN CARD) cannot help the workman in proving conclusively that his date of birth is 15.06.1958. In the absence of acceptable and clinching material in support of the alleged fact that date of birth of workman is 15.06.1958, documents exhibited as Ex. WW1/9 and Ex. WW1/10 by themselves cannot be taken as conclusive proof as regards date of birth of workman.
Admittedly workman received letter dated 13.04.2010 regarding his retirement. Thereafter workman served notice dated 18.05.2010 Ex. MW1/2 (also exhibited as Ex. WW1/7) upon the management and management replied the same vide reply Ex. WW1/M7x (also exhibited as Ex. MW1/3). In the said reply management advised the workman to submit the birth certificate issued by the competent authority (10th class birth certificate) or other relevant public record / document showing his exact date of birth. Workman in his crossexamination deposed that, ".... I never submitted any document to the Management in reply to the letter dated 31.05.2010......". The following suggestion given to MW1 Mr. Deepak Kumar is contrary to above referred depositions Page 18 of 23 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Vikram Singh Rawat Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 17/12 of workman.
".....Q. It is put to you that the workman had again submitted the documents Ex.WW1/3, WW1/4, WW1/5, Ex. WW1/9 and Ex. WW1/10 with the management in reply to the letter Ex. WW1/M7X written by the management ? What have you to say?
Ans. It is correct that management had written letter Ex. WW1/M7X in reply to the letter of the workman but the abovesaid were not submitted by the workman as suggested.
It is wrong to suggest that I am deposing falsely in this regard...........".
It is noted that both Ex. WW1/M7x and Ex. MW1/3 are one and the same document contentwise except that document Ex. MW1/3 mentions the date of the document as 31.05.10 but no such date is mentioned on Ex. WW1/M7x.
MW1 Mr. Deepak Kumar in his evidence affidavit deposed that, "7. That the claimant vide management letter dated 31.5.10 was was given opportunity to submit documents in support of his claim but the claimant did not submit any document as sought by the management in its letter and filed only an affidavit attested by the oath commissioner dated 10.6.10 which could not have been considered a satisfactory document by the management in regard to his actual date of birth as claimed by him. The copy of the said affidavit be read as Exb. MW1/7." There is no crossexamination of MW1 Mr. Deepak Kumar with regard to above depositions. Affidavit Ex. MW1/7 mentions as under : "2. That my exact date of birth is 15061958, (15th day of June and the year One Thousand Nine Hundred Ninety One)
3. That I do not have any documentary proof in support of my date of birth and place of birth."
Affidavit Ex. MW1/7 by itself cannot be accepted to be acceptable / clinching evidence as proof of date of birth of workman as 15.06.1958.
In this background when the workman was well in advance informed vide letter Page 19 of 23 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Vikram Singh Rawat Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 17/12 dated 13.04.2010 about of retirement with effect from 01.07.2010 and that workman was further given opportunity vide Ex. MW1/3 (also exhibited as Ex. WW1/M7x) no malafides cannot be attributed on the part of management if the management made the workman to retire on the basis of date of birth as mentioned in Ex. WW1/M2x which the workman himself provided to management at the time of his employment / appointment with the management. Workman was employed as driver and, thus, there is nothing wrong if management acted as per the date of birth of workman as mentioned in the driving licence Ex. WW1/M2x provided by workman at the time of his first employment / appointment with management. Despite opportunity given workman failed to produce matriculation certificate which was to be taken as conclusive proof of date of birth of workman as per contract of employment between workman and management. Workman even did not produce the same at any stage till today.
Also workman nowhere in the statement of claim pleaded as to what documents workman submitted with management at the time of his initial appointment with management. The possibility of following depositions of MW1 Mr. Deepak Kumar being quite possibly true cannot be ruled out altogether:
".......The workman never submitted Ex. WW1/3, Ex.WW1/4, WW1/5, Ex.WW1/9 and Ex. WW1/10 to the management at the time of his appointment. He submitted only his Driving license Ex. WW1/M2X. It is wrong to suggest that I am deposing falsely in regard to the abovesaid documents. No letter/notice was given to the workman to submit documents as demanded in the appointment letter. It is wrong to suggest that these documents were not demanded by the management as the same had already been submitted by the workman to the management at the time of appointment........".
Notably Ex.WW1/4 which is having date of issue as 26.09.2009 could not have Page 20 of 23 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Vikram Singh Rawat Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 17/12 been in existence at the time of appointment of workman on 01.12.2006.
Workman in the statement of claim pleaded malafides on the part of management but has failed to even plead the facts giving rise to malafides on the part of management against the workman or the facts in the nature of conduct of management which would have suggested that management had any malafides against the workman.
It is pertinent to note that workman in his crossexamination deposed as under : "........It is wrong to suggest that I stopped reporting for my duties w.e.f 12.05.2010. Vol the management stopped me from joining the duties. At this stage documents Ex. WW1/M4x i.e. letter dated 22.05.2010 and Ex. WW1/M5x letter dated 08.06.2010 are shown to the witness and he denies to have received these documents. It is wrong to suggest that I had duly received these documents sent by the management and I am deposing falsely in this regard.
I did not write any letter to the management that I am not being allowed to join duties. Vol I had orally complained about the same. It is correct that as per letter dated 13.04.2010 my effective date of retirement was 30.06.2010. It is wrong to suggest that I was never disallowed by the management to report for duties and infact I stopped reporting my duties on my own w.e.f 12.05.2010......... My address, during the period May - June 2010 was 20/383, Dakshin Puri, New Delhi - 110062. It is correct that Letter Ex. WW1/M4X was received by me. I might have received letter dated 08.06.2010 Ex. WW1/M5X.......".
But MW1 Mr. Deepak Kumar in his crossexamination has been made to depose that "...... It is wrong to suggest that during the period from 12.05.2010 to 30.06.2010, the workman had duly intimated the management about his absence from duties but the management acknowledged the same. It is further wrong to suggest that the workman remained on leave during this period because the death of his real brother which was duly intimated to the management.......". These stand of workman are not consistent. FURTHER workman in his crossexamination deposed that, "... It is Page 21 of 23 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Vikram Singh Rawat Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 17/12 correct that I had joined the services of the management w.e.f. 01.12.2006 as a Driver ....". But MW1 Mr. Deepak Kumar in his crossexamination has been made to depose that, "...... It is wrong to suggest that the workman was working with the management since 2004. It is wrong to suggest that Formula Corporate Solutions India Pvt. Ltd. was earlier known as Formulaone Manpower Solutions Pvt. Ltd. To my knowledge, Mr. Nikhlesh Bhomick has never been director of M/s Formula Corporate Solutions India Pvt. Ltd. In 2004, the name of Formula Corporate Solutions India Pvt. Ltd. was Formulaone Corporate Solutions Pvt. Ltd. It is wrong to suggest that in the year 2004, Formula Corporate Solutions India Pvt. Ltd. was known as Formulaone Manpower Solutions Pvt. Ltd. It is further wrong to suggest that in the year 2006 that name of Formulaone Manpower Solutions Pvt. Ltd. was changed to Formula Corporate Solutions India Pvt. Ltd. I do not know what was the address of management namely Formula Corporate Solutions India Pvt. Ltd. in the year 2004. I cannot say as to whether Ex. MW1/W1X was issued by M/s Formulaone Manpower Solutions Pvt. Ltd. to the workman or not as this does not belong to the present management..........". Again workman is taking inconsistent stands.
Workman in his crossexamination deposed that "........It is correct that Management had filed the reply before the Conciliation Officer to my claim filed before the Labour Department. Copy of the reply of the Management before the Conciliation Officer is Ex. WW1/M6X.......". Further workman deposed that ".......I am ready to join the duties with the Management provided Management firstly clears my dues payable by management to me on account of myself remaining unemployed after termination of my services. It is correct that I did not join the duties for the same reason even in response to offer given by management to join the duties during the conciliation Page 22 of 23 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015 Vikram Singh Rawat Vs. M/s. Formula One Corporate Solutions Pvt. Ltd. ID No. 17/12 proceedings.......". Reference at this stage may also be made to order dated 15.10.2013 mentioned in para. 7 of this award. Thus, stand of management to the effect that claimant / workman even prior to his effect date of retirement (i.e. 30.06.2010) stopped reporting for his duties w.e.f. 12.05.2010 and did not report for his duty despite (i) receipt of letters dated 22.05.2010 and 08.06.2010; (ii) offer made Ex. WW1/M6x during conciliation proceedings; (iii) offer made in WS and (iv) offer made vide application disposed of vide abovesaid order dated 15.10.2013 is worth reliance from judicial mind. Thus, it is held that workman has failed to establish on judicial file by leading acceptable and clinching evidence that his real and correct date of birth is 15.06.1958.
In the totality of facts and circumstances of this case no illegality, malafides etc. can be attributed on the part of management in retiring the workman w.e.f. 01.07.2010 and workman can be said to have failed to prove his case on judicial file. Reference is accordingly answered against the workman and in favour of management. Parties to bear their own costs.
ISSUE No.2: Relief In view of my above findings the workman is held to be entitled to no relief.
10. A copy of the award be sent to the Office of the concerned Deputy Labour Commissioner for further necessary action.
11. File be consigned to Record Room after completing due formalities. PRONOUNCED IN THE OPEN COURT ON 29.06.2015.
(ANAND SWAROOP AGGARWAL) POLCXI, Karkardooma Courts, Delhi* Page 23 of 23 (ANAND SWAROOP AGGARWAL) POLCXI/KKD/DELHI/29.06.2015