Delhi District Court
Raju Bhaskar S/O. Sh. Hira Lal vs M/S. Anil Arora on 30 November, 2015
Raju Bhaskar Vs. M/s. Anil Arora ID No. 80/11
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. 80/11
UNIQUE CASE IDENTIFICATION NO. 02402C0091732011
In the matter of :
Raju Bhaskar s/o. Sh. Hira Lal,
R/o. C544, Kirti Nagar,
Chuna Bhati, Near Lakkar Mandi, New Delhi110015.
C/o. Rashtriya Rajdhani Sheshtra Engineering & General Mazdoor Union(Regd.),
C139, Karampura, New Delhi110015 ......... Workman/Applicant
Vs.
M/s. Anil Arora,
3/86, Ramesh Nagar,
3rd Floor, New Delhi110015 ..........Management
Date of Institution : 17.03.2011
Date of reserving for award : 26.10.2015
Date of award : 30.11.2015
AWARD :
1.Vide Order No. F3(677)/Ref./WD/LAB/188 dated 04/03/2011 Deputy Labour Commissioner (West District), Labour Department, Government of N.C.T. Of Delhi referred following industrial dispute between workman and management 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 : Page 1 of 19 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Raju Bhaskar Vs. M/s. Anil Arora ID No. 80/11 ''Whether the services of Sh. Raju Bhaskar S/o Sh. Hira Lal 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) Workman was working with the management with hard labour and honesty on the post of 'Karigar' (Radio Mechanic) for 17 years with his last drawn salary of Rs.
6448/.
(ii) Work of the workman during his service tenure was always good and satisfactory. Management was not given any opportunity to have any complaint against him. For this reason management never put any charge on the workman.
(iii) During the service tenure the management had not provided appointment letter, attendance card, ESI card, pay slip, earned leave, casual leave etc., which are available to the workman under the labour laws. Even the name of the workman was not written in the attendance register nor workman was being paid wages on wages register.
(iv) Workman was continuously making oral demand for legal facilities as abovesaid and management, having annoyed on this account, did not pay salary to the workman for the months of June and July, 2010. When on 10.08.2010 workman demanded salary for the months of June and July, 2010 the management angrily and malafidely terminated the services of the workman on 10.08.2010.
(v) Since 10.08.2010 till 20.09.2010 workman regularly visited the management for work and for taking his salary but the management neither paid salary to the workman nor took the workman on duty.
(vi) On 20.09.2010 workman through union made a written complaint to the Asst. Labour Commissioner, Labour Office, Karampura, New Delhi. On the instructions of the Asst. Labour Commissioner, Labour Inspector Mr. P.P.Sikri, through notice called Page 2 of 19 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Raju Bhaskar Vs. M/s. Anil Arora ID No. 80/11 the management on 01.10.2010 in the labour office and discussed with Mr. Anil Arora the issues of payment of salary for the months of June and July, 2010 and reinstatement of workman in previous service. During the discussion, management admitted Mr. Raju Bhaskar as its employee but refused to pay the salary and reinstate the workman in service. Management even did not appear in the labour office on 08.10.2010 with record of its employees.
(vii) On 15.10.2010 workman sent a demand notice to the management raising a demand for salary from 01.06.2010 to 10.08.2010 and reinstatement in the service with back wages and all legal facilities but management did not reply the demand notice.
(viii) Workman filed claim for recovery of salary from 01.06.2010 till 10.08.2010 before the Authority under the Shops and Establishment Act, 1954 which is pending adjudication.
(ix) Workman through union raised an industrial dispute before Conciliation Officer. Management intentionally did not participate in the conciliation proceedings. As the matter could not be settled, Conciliation Officer furnished failure report u/s. 12 (4) of Industrial Disputes Act, 1947 to his superior officers. Hence, this reference.
(x) The act of the management in, all of sudden, terminating the services of the workman on 10.08.2010 is illegal, unreasonable and unjustified inasmuch as before terminating the services of the workman management nor served any notice nor paid notice pay in lieu of notice nor served any chargesheet nor conducted any domestic inquiry nor paid any notice pay/retrenchment compensation etc. under the provisions of 25 F of the Industrial Disputes Act, 1947.
(xi) During his service tenure of 17 years the workman worked for more than 240 days in each calendar year.
(xii) Workman is unemployed since 10.08.2010. Despite much efforts the workman Page 3 of 19 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Raju Bhaskar Vs. M/s. Anil Arora ID No. 80/11 did not get any service. Workman is able to make both ends meet with the help of his brother and other family members.
With these averments the workman prayed for an order directing the management for making payment of salary for the months of June and July, 2010. Also workman prayed for an award in his favour and against the management directing the management to reinstate the workman in service with continuity of service and full back wages w.e.f 10.08.2010 alongwith all legal facilities.
3. STAND OF MANAGEMENT AS PLEADED IN WRITTEN STATEMENT OF DEFENCE.
PRELIMINARY OBJECTIONS (1) The reference made by Deputy Labour Commissioner, Govt. of NCT of Delhi is totally misconceived, untenable and without application of mind inasmuch as the applicant is not a 'workman' as defined in the Industrial Disputes Act, 1947 and, therefore, there is no question of alleged termination of services of applicant and hence the terms of reference is void abinitio and is liable to be dismissed.
(2) There was no relationship of workman and employer between the applicant and the management and there is no industrial dispute in existence between the parties as per the provisions of Industrial Disputes Act, 1947.
ON MERITS Management in the WS, while denying the case as pleaded by the workman in the statement of claim, pleaded that applicant had never worked with the management under the employment of the management; rather applicant was working under the employment of Ram Murat at his house and applicant used to do the job of assembling radio assigned by Ram Murat at his house and applicant was being paid by Ram Murat and not by management. The applicant was the workman of Ram Murat and not of the management and there is absolutely no relationship of workman and employer between the applicant and the management. There was no fixed salary of applicant as alleged and he was being paid by Ram Murat. Applicant is Page 4 of 19 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Raju Bhaskar Vs. M/s. Anil Arora ID No. 80/11 not a 'workman' and there is no relationship of workman and employer between the parties. The present false petition has been filed by applicant on the asking and instigation of Ram Murat only to harass the management. Management further pleaded that question of keeping good behaviour and any complaint against his work culture does not arise as applicant never remained in the employment of the management and, thus, applicant is not entitled to any legal facilities as alleged.
There is no question of any termination of services of the applicant as he was not a workman of the management. Management denied the averments made by workman regarding complaint dated 20.09.2010 & proceedings pursuant thereto and, rather, pleaded that Conciliation Officer in the labour department had adopted completely biased attitude against the management and management was not given proper hearing and management had given his detailed reply to the Conciliation Officer but the same was not taken on record by the Conciliation Officer rather the management was forced by the Conciliation Officer to sign on some blank documents/papers given by them. Management denied dispatch of legal notice dated 15.10.2010 by the workman and its service upon the management. Management also submitted that copy of said notice dated 15.10.2010 has not been supplied to management with the claim petition. Management denied the averments of the workman regarding pendency of claim before the Authority under the Shops and Establishment Act, 1954 and pleaded that same cannot be replied without copy of the same. Management also denied that applicant worked for 17 years and for 240 days in a calander year. Further management pleaded that applicant is gainfully employed and doing the work as already mentioned. At last management prayed for dismissal of the claim petition filed by the workman.
4. REJOINDER In rejoinder, workman denied the case as pleaded by management in its WS and reaffirmed the averments made in statement of claim.
5. ISSUES On 30.01.2012 following issues were framed : Page 5 of 19 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Raju Bhaskar Vs. M/s. Anil Arora ID No. 80/11
(i) Whether there existed any relationship of employer and employee between the management and the workman? OPW/OPM.
(ii) As per terms of reference.
(iii) Relief, if any.
6. EVIDENCE :
Workman appeared in the witness box as WW1 Raju Bhaskar and tendered his examinationinchief vide affidavit Ex. WW1/A. Workman relied upon documents namely Ex. WW1/1 complaint (dated 20.09.2010) made through union to Asst. Labour Commissioner; Ex. WW1/2 Report (dated 09.11.2010) of the Labour Inspector Mr. P.P.Sikri; Ex. WW1/3 Demand Notice dated 15.10.2010; Ex. WW1/4 Postal Receipt dated 16.10.2010; Ex. WW1/5 Statement of claim before Conciliation Officer, Ex. WW1/6 Inland Letter. Workman also examined WW2 Mr. P.P.Sikri, Labour Inspector. WE was closed on 18.07.2013 by ARW.
Management examined MW1 Mr. Anil Arora who tendered his examinationin chief vide affidavit Ex. MW1/A. ME was closed on 22.10.2013 by ld. Counsel for the management.
7. APPLICATION OF WORKMAN SEEKING PRODUCTION OF RECORDS FROM THE MANAGEMENT.
On 24.03.2014 workman moved an application seeking production of records namely (i) Appointment letter of workman; (ii) Attendance card of workman; (iii) Muster roll of management; (iv) Wages register; (v) Workman's application for job; (vi) Pay slip & Leave record; (vii) Any written agreement; (viii) Records related to ESI & PF and (ix) Registration of management from the management. Instead of filing formal reply to this application on 07.06.2014 Mr. Anil Arora made the following statement: Page 6 of 19 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Raju Bhaskar Vs. M/s. Anil Arora ID No. 80/11 ''Statement of Mr. Anil Arora S/o Mr. Sant Ram Arora.
On SA I state that workman was not my salaried employee.
Accordingly, there was no occasion at all for me to maintain the documents, as detailed in the application moved by workman, as regards the workman. During the alleged service period of the workman as mentioned in the application workman never worked under me as my employee. Therefore, I am not able to produce any of the documents as sought by the workman.'' This application of workman was dismissed vide detailed order dated 04.07.2014
8. ARGUMENTS I have heard Mr. Kirori Lal AR for workman and Mr. Gautam Pal Adv. for management. Ld. ARW relied upon case laws reported as Public Works Department Vs. Dev Sukh & others 2004 LLR 158 and Automobile Association of Upper India Vs. PO Labour Court II & Anr. 2006 LLR 851. Ld. Counsel for the management relied upon case laws reported as (i) Chintaman Rao and Anr. vs. State of Madhya Pradesh AIR 1958 Supreme Court 388; (ii) Mangal Prasad Vs. Management of M/s. Modern Food Industries and Anr. 2012 (4) JCC 2566 and (iii) Anukampa Enterprises Vs. Shri M M Faridi: DOD 18.10.2006 by Hon'ble Mr. Justice Shiv Narayan Dhingra, Judge, High Court of Delhi.
I have gone through the material available on judicial file and the case laws very carefully. I have given a thoughtful consideration to the facts and circumstances of the case as arise on the basis of material available on judicial file.
Page 7 of 19 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Raju Bhaskar Vs. M/s. Anil Arora ID No. 80/11 9. My ISSUEWISE findings are as under : Issue No. 1
Whether there existed any relationship of employer and employee between the management and the workman? OPW/OPM.
Issue No. 2
As per terms of reference.
(Whether the services of Sh. Raju Bhaskar S/o Sh. Hira Lal 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?) Here, as per workman, workman was working with the management on the post of 'Karigar' (Radio Mechanic) for 17 years and his services were illegally terminated on 10.08.2010 in violation of provisions of Section 25 F of the Industrial Disputes Act, 1947.
Management in the WS pleaded that workman/applicant never worked with the management in the employment of the management and rather applicant was working under the employment of Ram Murat at his house and applicant used to do the job of assembling radio assigned by Ram Murat at his house and applicant was being paid by Ram Murat and not by management. The applicant was the workman of Ram Murat and not of the management and there is absolutely no relationship of workman and employer between the applicant and the management. There was no fixed salary of applicant as alleged and he was being paid by Ram Murat. Applicant is not a 'workman' and there is no relationship of workman and employer between the parties. The present false petition has been filed by applicant on the asking and instigation of Ram Murat only to harass the management.
NOW undoubtedly initial onus is on the workman to prove his case as pleaded by him in the statement of claim. Workman is supposed to discharge this onus Page 8 of 19 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Raju Bhaskar Vs. M/s. Anil Arora ID No. 80/11 on the basis of principle of preponderance of probabilities. No straight jacket formula exists to determine as to whether workman has been able to discharge this initial onus or not and each case deserves to be considered/decided on the basis of peculiar facts and circumstances of each case as emerging out on the basis of entire material available on judicial file. It is the duty of the court to scrutinize the facts from all angles to come to a conclusion as to whether the pleas advanced by the workman or the management are worth reliance by the court, while the court acting as a reasonably prudent person, keeping in view the totality of facts and circumstances of the case by particularly keeping in mind as to whether the workman or the management has been able to prove/substantiate the case as pleaded in the statement of claim/written statement of defence by leading cogent and convincing evidence. While appreciating the evidence led by the parties, court is bound to keep in mind that neither party can be expected to lead the evidence which such party, quite possibly in a given factual situation, cannot lead on judicial record. Nobody can be compelled to do a thing which he/she cannot possibly do in a given factual situation.
What is to be noted is that despite specific averments/depositions of the workman that workman was working with the management for 17 years, management in the WS did not specifically plead as to for what period of time workman/applicant worked under the employment of Mr. Ram Murat in terms as pleaded by the management in the WS. Management has not even pleaded that management was not even in the existence/not running the business at the point of time when workman might have joined the management in terms of averments made by the workman in the statement of claim.
Workman in his crossexamination has deposed to made as under:
''......It is correct that I have not filed any documentary proof on the Page 9 of 19 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Raju Bhaskar Vs. M/s. Anil Arora ID No. 80/11 judicial file to show that I worked with the Management at any point of time.
I have also not placed any documentary proof on the judicial file with regard to the completion of my 240 working in the preceding calender with the Management. I have also not placed any appointment letter, pay slip, attendance card, wages register on the judicial file showing my service tenure with the Management......''.
What deserves to be noted is that the management has not pleaded/led evidence as to what employees were employed by the management and as to what records the management maintained qua such employees. Management has also not pleaded/led evidence that it provided/maintained all the records as has been referred in the above referred crossexamination of the workman in respect of employees which management admittedly employed as its employees. Management has not even pleaded that it never employed any employee. In this background, to my mind failure on the part of the workman to produce documentary proof regarding his employment with the management in the form of appointment letter, pay slip, attendance card, wages register cannot be said to be fatal to the case of the workman.
MW1 Mr. Anil Arora in his crossexamination deposed as under:
''.........Que. : Kindly tell whether Ram Murat was working with you as a thekedar?
Ans. : Ram Murat used to collect loose material from me and returned the assembled articles to me. Sh. Ram Murat as such was working as a thekedar. He was working as a thekedar on per piece basis.
I do not have any written agreement with Ram Murat as a thekedar. It is wrong to suggest that Ram Murat was not a thekedar and he was also working under me. I have not placed on record any material to show the details of the material given by me to Ram Murat for assembling. It is correct to suggest that I used to make payment to Ram Murat and I do now know whether he used to make payment to Raju Bhaskar or not. It is wrong to suggest that Raju Bhaskar was working as my employee on salary basis. It is wrong Page 10 of 19 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Raju Bhaskar Vs. M/s. Anil Arora ID No. 80/11 to suggest that Raju Bhaskar was not working on per piece basis. (vol. Raju Bhaskar was not working under me in any capacity. I do not know whether Raju Bhaskar was working at the instance of Ram Murat.).....'' The last voluntary depositions as made by MW1 Mr. Anil Arora are contradictory to the stand taken by the management in its WS. It is noteworthy that workman is not able to produce documentary evidence as suggested to him in his cross examination and, equally, even the management is not able to produce documentary evidence to support the stand taken by it in the WS. As per management workman has filed this case at the asking/instigation of Ram Murat only to harass the management but management has not even pleaded as to there existed any dispute between the management and Ram Murat so as to motivate Ram Murat to instigate workman to file a false case. Thus, management can be said to have failed to establish on judicial record the stand taken by it regarding employment of workman by Ram Murat.
Workman in the statement of claim made specific averments regarding complaint dated 20.09.2010 made to Asst. Labour Commissioner and proceedings conducted by Labour Inspector pursuant to said complaint. Management baldly denied these averments made by workman and, rather, pleaded that Conciliation Officer in the labour department had adopted completely biased attitude against the management and management was not given proper hearing and management had given his detailed reply to the Conciliation Officer but the same was not taken on record by the Conciliation Officer rather the management was forced by the Conciliation Officer to sign on some blank documents/papers given by them but MW1 Mr. Anil Arora regarding the conciliation proceedings in his crossexamination deposed as under: ''......Que.:Did you attend the office of Conciliation Officer pursuant to the claim filed by the workman?
Ans.: I do not remember. I also do not understand the difference Page 11 of 19 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Raju Bhaskar Vs. M/s. Anil Arora ID No. 80/11 between a labour inspector and a Conciliation Officer. Que.:It is put to you that you had appeared before the Conciliation Officer and also received the copy of the claim filed before the Conciliation Officer? Also you did not file reply to the said claim? Ans.: I had not received the copy filed before the Conciliation Officer. Question of filing reply does not arise. Que. :Kindly tell whether the Conciliation Officer had taken your signatures on blank papers?
Ans. :In the labour office my signatures were taken on 23 blank papers and 23 written papers. I do not know whether those signatures were taken by the Conciliation Officer or some other officer.
I did not make any complaint to any Police Station regarding my abovesaid signatures taken in the labour office. I did not make any written complaint in the office of Dy. Labour Commissioner regarding my abovesaid signatures.(Vol. My oral complaints were not listened to.). I had not produced any record before the Conciliation Officer.....''.
Above depositions made by MW1 Mr. Anil Arora are contradictory/inconsistent with the stand taken by the management in its WS qua the conciliation proceedings.
The stand taken by the management that the Conciliation Officer had forced the management to sign on blank documents/papers or that management had given detailed reply to the Conciliation Officer but the same was not taken on record by the Conciliation Officer does not inspire any confidence in view of above depositions made by MW1 Mr. Anil Arora.
WW2 Mr. P.P.Sikri in his crossexamination has been made to depose as under: ''The union had made a complaint to me in my office on 20.09.2010. I have not brought the copy of the aforementioned complaint dated 20.09.2010 along with me today in the court.
It is correct that the document Ex. WW1/6 does not bear the signatures of the workman or any person on behalf of the Management. (Vol. Signatures are taken in a separate proceeding sheet. Today I have not brought the file containing the proceedings sheet.).
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Raju Bhaskar Vs. M/s. Anil Arora ID No. 80/11
Along with the complaint workman had not filed any document showing that he is employed with the Management. Further workman had not filed any document showing the tenure of his service with the Management. (Vol. There is no such practice of workman furnishing his these details and we demand such proof from the Management.). It is correct that in the report Ex. WW1/6 it is not mentioned as to what period Raju Bhaskar had worked with the Management and the period of the employment of Dinesh has also not been mentioned.
It is wrong to suggest that the report Ex. WW1/6 is a false and forged or that I prepared the same at the instance of the union. The workman had not filed any document showing his membership with the union. The workman had not filed any document showing that the workman had given authority to the union to file any complaint in the office of the Labour Commissioner. Vol. There is no such practice.
It is wrong to suggest that there is no such file prepared in my office with respect to the proceedings initiated by me between the union and the Management. It is wrong to suggest that I am deposing falsely. '' MW1 Mr. Anil Arora regarding proceedings of the Labour Inspector deposed as under:
''......I have no knowledge that on 20.09.2010 workman made a complaint in the Labour Department. It is correct to suggest that labour inspector P.P. Sikri had called me in the office on 01.10.2010. (Vol. I had visited the said office.).
Que. : It is put to you that you had admitted before the labour inspector that Raju Bhaskar was working as my employee as a fitting person?
Ans. : It is wrong to so suggest. (Vol. In the labour office Ram Murat and Kuber were present. My attendance was marked by the labour inspector. Then I came back. Raju Bhaskar was not present in the labour office.).
Que. : It is put to you that before the labour inspector you had also told that you would settle the matter with the workman Raju Bhaskar and other employees namely Kuber, Ram Murat and Dinesh?
Ans. : It is wrong to so suggest.
Que. : It is put to you that on 01.10.2010 labour inspector had Page 13 of 19 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Raju Bhaskar Vs. M/s. Anil Arora ID No. 80/11 adjourned the matter for 08.10.2010 and parties were called for the said date?
Ans. : I do not remember the date but I had attended the labour office as and when called.
Que. It is put to you that on 08.10.2010 union AR and workmen had attended the labour office but you had not come present? Ans. : I had attended the labour office on all the dates except on one or two dates. The dates on which I was absent, I do not remember. It is correct to suggest that I did not produce any record before the labour inspector....''.
The above depositions which WW2 Mr. P.P.Sikri has been made to depose and which MW1 Mr. Anil Arora deposed in his crossexamination do not match with each other. In view of above depositions made by MW1 Mr. Anil Arora in his cross examination, the suggestion given in the crossexamination to WW2 Mr. P.P.Sikri that no such file was prepared in his office with respect to proceedings initiated by him between the union and the management can be said to be without any substance. Also keeping in view the depositions made by MW1 Mr. Anil Arora qua the proceedings conducted by the Labour Inspector, the fact that WW2 Mr. P.P.Sikri did not bring the complaint dated 20.09.2010 or the record of proceedings conducted by him can be said to be totally immaterial. Admittedly MW1 Mr. Anil Arora did not produce any record before the Labour Inspector, which fact is also mentioned in the report of the Labour Inspector. It is pertinent to note that report of the Labour Inspector dated 09.11.2010 has been produced before the court in original. There is no specific crossexamination of WW2 Mr. P.P.Sikri as regards the contents of report dated 09.11.2010. A bald suggestion that report Ex. WW1/6 is false and forged or that Mr. P.P.Sikri prepared the same at the instance of union does not serve any purpose. Moreso when despite appearance of Mr. P.P.Sikri, Labour Inspector in the witness box to prove his report dated 09.11.2010, specific questions/suggestions are not put/given to challenge the specific contents of his report. Mr. P.P.Sikri prepared his report in his official capacity Page 14 of 19 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Raju Bhaskar Vs. M/s. Anil Arora ID No. 80/11 as a public servant and a presumption can be raised that a public servant properly performed his duty in ordinary course of his official duty. Not even a suggestion has been given in the crossexamination of the WW2 Mr. P.P.Sikri as to why he would have prepared a false and forged report at the instance of union. There is no material at all on judicial to show that WW2 Mr. P.P.Sikri had any malafides against the management. Report of the Labour Inspector mentions that ''......Prabandhak Paksh Ke Anusar Raju Bhaskar Sirf Filling Ka Kam Kartha Tha....''.
Workman is relying upon demand notice dated 15.10.2010 dispatched to management vide postal receipt dated 16.10.2010. MW1 Mr. Anil Arora in his cross examination deposed that ''.........I did not receive demand letter Ex. WW1/3. It is correct that address mentioned at point A on Ex. WW1/3 is my address.....''. It is alright that postal receipt dated 16.10.2010 does not mention the complete/detailed address of management but that does not mean that workman never dispatched demand notice to management inasmuch as, as a practice postal department does not mention the detailed/complete address as mentioned on the envelope on the postal receipt. Also it is noteworthy that there is no crossexamination of workman regarding dispatch of demand notice. Thus, management can be taken to have been served with demand notice dated 15.10.2010 but management did not reply the demand notice. An adverse inference may be drawn against the management on the that account in the totality of facts and circumstances of this case.
Workman in his depositions deposed that ''.........I did not remain member of any labour union at any point of time.....''. WW2 Mr. P.P.Sikri in his crossexamination deposed that, ''.........The workman had not filed any document showing his membership with the union. The workman had not filed any document showing that the workman had given authority to the union to file any complaint in the office of the Labour Page 15 of 19 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Raju Bhaskar Vs. M/s. Anil Arora ID No. 80/11 Commissioner. vol. There is no such practice......''. These depositions does not in any way help the management inasmuch as present case is a reference case under rule 10 B (11) of the Industrial Disputes (Central) Rules, 1957.
Here there is no admission on the part of management regarding management employing any employee during the period (alleged) of the employment of workman by the management. Thus workman cannot be asked to produce coemployee as a witness to support the case of workman as pleaded in statement of claim.
Workman in his crossexamination deposed as under: ''.......My last drawn wages were Rs. 6448/ p.m and the said amount is mentioned in my statement of claim as well as in my evidence affidavit Ex. WW1/A. It is correct that the document Ex. WW1/1 bears my signatures at point A on the same. It is correct that in the document Ex. WW1/1 my month last draw wages have been mentioned as Rs. 5278/. It is correct that there are cuttings on Ex. WW1/1 in the encircled portion.....''.
This discrepancy in the last drawn salary of workman does not go to root of this matter in the totality of facts and circumstances of this case.
Workman in his crossexamination has been made to depose that ''......It is correct that I have not placed on record showing the fact that the management was being run by Sh. Anil Arora and the management was having its office at the address given by me in the statement of claim..''. These depositions are ineffectual inasmuch as in the WS it is not the case of management that Mr. Anil Arora was not at all involved in the business or that it was not having office at the address as mentioned in the statement of claim. Pertinently MW1 Mr. Anil Arora in his crossexamination deposed that ''........It is correct to suggest that today my business is running under the name of M/s. Anil Arora (vol. Presently no future is there of the business. Also business is at a Page 16 of 19 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Raju Bhaskar Vs. M/s. Anil Arora ID No. 80/11 very small scale). Again said business is not being run under the name of M/s. Anil Arora. Business is being run without any name......''. In the factual background of this case the depositions made by workman to the effect that ''........My job was to make radio sets in complete form and I used to handover the same in O.K. condition after checking.......'' does not benefit the management in any manner. The fact that workman did not make any complaint against the management before the labour department or any other authority except complaint Ex. WW1/1 does not in any way affect the case of workman in the totality of facts and circumstances of this case.
In view of above detailed discussion it is observed that as workman has led evidence which workman could have led in the facts and circumstances of this case and pleadings of management in the WS are contradictory/inconsistent with the evidence on record, the preponderance of probabilities suggest that case as pleaded by workman in the statement of claim regarding his employment by management and illegal termination of his services by management is worth reliance by this court. Thus, issue no. 1 is decided in favour of workman and against the management. The case laws relied upon by ld. Counsel for management do not help the management in the totality of the facts and circumstances of this case.
MERELY because management terminated the services of workman in violation of provisions of section 25 F of the Industrial Disputes Act, 1947 does not mean that workman is automatically entitled to be reinstated in service with full back wages. Each case deserves to be decided keeping in view specific facts and circumstances of the case. Whether workman is entitled to reinstatement with or without back wages or lumpsum compensation is a matter of discretion of this Court (Four Judges Bench Judgment in United Commercial Bank Ltd. Vs. Secretary, U.P. Bank Employees Union and Ors. AIR 1953 SC 437 relied upon). Here management is a Page 17 of 19 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Raju Bhaskar Vs. M/s. Anil Arora ID No. 80/11 sole proprietorship concern. Also keeping in view the stand taken by management in the WS, in my considered opinion, order for reinstatement of workman in service with the management may not result in coordial industrial relations between the management and the workman. Hence, no case for reinstatement of workman in service with the management is made out.
Workman in the statement of claim pleaded that workman is unemployed since 10.08.2010 and despite much efforts the workman did not get any service and, that, workman is able to make both ends meet with the help of his brother and other family members. Except the vague/bald averments no material has been brought on record by workman to prove these averments. Workman is having vast experience in his field of workman and cannot be believed to be totally unemployed/not earning anything throughout uptodate since the date of termination of his services. Workman has not even examined any of his family members. Workman in his crossexamination deposed that, ''.....I went to my village along with my family members after my services were terminated by the management. At the time of filing my statement of claim and evidence affidavit before the Court I was residing in village. Vol. I use to come to Delhi to attend this Court proceedings from my village....''. There is nothing on judicial file to show that workman made serious sincere efforts to get alternative service after his services were terminated by management. Hence workman is held to be not entitled to full back wages.
In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the tune of Rs. 1,80,000/ (Rs. One Lac Eighty Thousand Only) to the workman for illegal/unjustified termination of his services by the management and for consequences thereof / back wages would meet the ends of justice. If this amount of Rs. 1,80,000/ (Rs. One Lac Eighty Thousand Page 18 of 19 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015 Raju Bhaskar Vs. M/s. Anil Arora ID No. 80/11 Only) is not paid to workman within one month of award coming into force management shall be liable to pay interest @ 9% per annum on this amount from the date of the award till its payment. A sum of Rs. 20,000/ (Rs. Twenty Thousand only) is also awarded to workman as costs of litigation payable by the management. ISSUE NO. 2 IS DECIDED ACCORDINGLY.
ISSUE NO. 3: Relief, if any.
AS ABOVE
10. Copy of the award be sent to 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 30.11.2015 (ANAND SWAROOP AGGARWAL) POLCXI, Karkardooma Courts, Delhi Page 19 of 19 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi /30.11.2015