Delhi District Court
Shri Santan Kumar vs M/S Essee Couriers Intra City Service on 5 August, 2010
IN THE COURT OFSH. SUKHDEV SINGH,ADJ/POLC-VII
(EAST-DISTRICT), KARKARKOOMA COURTS, DELHI.
ID No. 52/2006
Unique Case ID No. 02402C0167272006
Shri Santan Kumar
Versus
M/s ESSEE Couriers Intra City Service
LB-35 Tolstoy House,
17 Tolstoy Marg,
New Delhi .......Management
Date of institution of the Suit : 20.02.2006
Date on which order was reserved : 05.08.2010
Date of decision : 05.08.2010
AWARD
Workman has raised an Industrial Dispute
against his illegal termination from the services and prayed
for reinstatement with consequential benefits.
2 It is, inter alia, stated in the statement of claim
that the Workman was appointed on the post of Courier Boy
on 1.4.1997. His services were appreciated and he was
promoted to the post of Junior Operation Executive vide letter
dated 12.9.2000, copy of the same has been annexed as
Annexure-II. It is alleged that the Management was not
providing the Workman Dearness Allowance (DA) and was
trying to maintain Minimum Wages by giving only HRA and
TA in place of D.A. As a result, the Workman was being
I.D No. 52/2006 Page1/8
exploited in terms of his entitlement which had even monetary
effect on his retirement benefits.
3 The Workman alongwith other Workmen in
the Management formed a Union which was duly registered
as per Annexure-III and five representatives of the Union were
declared as Protected Workman as per Annexure-IV. Since
the Workman was the active member of the Union since its
registration, the Management got annoyed with him and
issued him chargesheet as per Annexure-V. The Workman
duly filed reply to the said charge, however, without
considering his reply, the Management put him under
suspension w.e.f 7.10.2003 and started giving suspension
allowance. The Workman filed reply to the chargesheet on
20.10.2003.
4 It is further stated that the Management
appointed an Enquiry Officer, to which the Workman
protested. The Management stopped paying the suspension
allowance w.e.f 24.12.2004 and issued termination letter
dated 24.12.2004. The Workman got sent a demand notice
against the said termination, which was never replied by the
Management. Hence, the claim.
5 In the Written Statement, the Management /
M/s Skypak Services Ltd has taken various pleas and stated
that M/s Skypak Services Specialists Ltd and M/s ESSEE
Courier Intra City services are different and separate units
I.D No. 52/2006 Page2/8
and there was no link between these two different
organisations. They have further stated that the
Management of M/s Skypak Services Specialists Ltd.,
neither interviewed the Workman nor appointed him. Other
pleas of the Workman have been denied parawise and they
have reiterated their stand.
6 In the replication, the Workman has
controverted the pleas of the Management and has
reasserted his own pleas.
7 On the pleadings of the parties, following
issues were framed:
I Whether there is relationship of employee
and employer between the parties ?
II Whether the Workman is entitled to
reinstatement with all consequential
benefits full back wages ?
III Relief.
8 Arguments were not advanced by either of the
parties inspite of opportunities. Since the pleadings are
complete and evidence has also been led by respective
parties, the case is decided on merits. I have gone through
the material placed on record. My findings on the above
issues are as follows:
ISSUE No.1 & 2
9 Since both these issues are interlinked and
evidence on them is same, they are taken up together. The
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onus to prove these issues lies upon parties. In support of
this, the Workman has examined himself as WW1. He has
deposed on affidavit Ex.WW.1/A and reiterated the pleas
taken by him in his statement of claim. He has relied upon
documents from Ex.WW.1/1 to Ex.WW.1/10 i.e; appointment
letter, promotion letter, Certificate of Registration of Trade
Union, letter related to Protected Workman, Chargesheet
dated 7.10.2003, letter of appointment of Enquiry Officer,
protest letter against the appointment of Enquiry Officer,
demand notice and report of the Labour Inspector.
10 In defence, the Management has examined
Shri Manmeet Singh, Assistant Regional Manger, as MW1.
He has also deposed on affidavit Ex.MW.1/A. He has
deposed in his testimony that Management No.1 had no
concern with Management No.2. He was neither employed by
the Management nor given any appointment letter. Thus, he
had no right to claim because the Workman was never
employee of the Management.
11 Though none of the parties has argued the
matter, from the testimony of Santan Kumar WW-.1 and Shri
Manmeet Singh, MW-1, it has to be seen whether there has
been relationship of employee and employer between them
or not. The stand taken by M/s Skypak Services Specialists
Ltd ( Management No.1) in the Written Statement is that M/s
Skypak Services Specialists Ltd and ESSEE Courier are
different units and they have no concern or link with each
other. However, Workman Santan Kumar has taken the
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stand that he was appointed by M/s ESSEE Couriers, who
also issued him appointment letter and later on, his services
were transferred to M/s Skypak Services Specialists Ltd.
12 If the cross-examination of Workman Shri
Santan Kumar, WW1 is looked into, it is noticed that he has
stated in his cross-examination that he was appointed in M/s
ESSEE Couriers, with whom he worked till 4.7.2003.
However, he has stated that he did not know as to when M/s
ESSEE Couriers merged with M/s Skypak Services
Specialists Ltd. He has also admitted that he has no
document to show that M/s Skypak Services Specialists Ltd
used to give him salary as well as work.
13 No doubt, Workman Santan Kumar, WW-1
has stated in his testimony that he has no document to show
that he used to work with M/s Skypak Services Specialists Ltd
, but if the document brought on record by him are looked
into, it is noticed that the letter got exhibited as Ex.WW.1/1
shows that he was appointed by M/s ESSEE Couriers on
1.4.1997. Ex.WW1/2 shows his appointment as Junior Operations Executive w.e.f 12.9.2000, and Ex.WW.1/8 is the termination letter.
14 Thus, from these documents viz.; appointment letter Ex.WW.1/1, promotion letter Ex.WW.1/2 and termination letter Ex.WW.1/8, coupled with the testimony of Workman Shri Santan Kumar, WW-1, who has categorically stated in his cross-examination that he was appointed by the Management, the relationship of employer and employee I.D No. 52/2006 Page5/8 stands established.
15 The next question that arises for consideration is as to whether the termination of the Workman is illegal or not. If a look is made to the cross- examination of the Workman Santan Kumar, WW1, except the questions in respect of relationship, no suggestions has been put with regard to termination. The Workman in his testimony has categorically stated that the Management has appointed an Enquiry Officer as per Ex.WW.1/6. Further, he has deposed that he protested to the appointment of Enquiry Officer. Not only this, he has also stated that Enquiry Officer did not complete the enquiry or submitted his report. The fact that the Workman has not been cross-examined on the point of termination and the Management has failed to put on record the report of the Enquiry Officer and has not spelt out anything in the testimony of the Management Witness Shri Manmeet Singh,MW1, the silence on the point of enquiry by the Management has to be construed that the Management has not conducted an enquiry in fair and proper manner before terminating the services of the Workman. The fact that no enquiry has been conducted/completed before terminating the services of the Workman, the termination of the Workman becomes illegal and unjustified.
16 When the termination of the Workman turns out to be illegal, the question arises as to what relief the I.D No. 52/2006 Page6/8 Workman is entitled to. From the facts which have come on record, it is noticed that the Management has appointed the Workman on 1.4.1997 as per appointment letter Ex.WW.1/1 and his services have been terminated w.e.f 24.12.2004 after conducting an enquiry. The enquiry which was being conducted by the Management has been for the Misconduct committed by the Workman for participating in the strike, though these facts have not been proved by the Management, but the Court cannot lose its sight when it has to consider the relief to be given to the Workman. Keeping in view the tenure of service and the Workman allegedly playing a leading role in the strike which had resulted into manhandling and loss of the company, better interest of the Workman as well as the Management will be served, if the Workman is not given reinstatement. Thus, taking into consideration the totality of the circumstances, I think that a lump sum amount of Rs.60,000/- ( Rupees Sixty Thousand ) towards his all claims. Therefore an award for an amount of Rs.60,000/- is passed in favour of the Workman and against the Management which be paid by the management within a period of one month of the publication of the award, failing which interest at the rate of 9% p.a. (nine percent) would be payable by the management to the workman.
17 Award is passed in the above terms. Six copies of the award be sent to the appropriate government.
I.D No. 52/2006 Page7/8File be consigned to record room.
18 Before parting with, it would not out of place to mention that the claim of Workman Santan Kumar has not been pleaded in a crystal clear terms. When the claim of the Workman is not crystal clear, the Written Statement filed on behalf of the Management is also in the same way. A bare reading of the Written Statement shows that the Management has simply denied the claim. From filing of the claim to the conclusion, Ld. Authorised Representative (A.R) for the Workman as well as the Management has failed to bring true facts before the Court. No doubt, Ld. Authorised Representative (A.R) for the Workman as well as the Management have failed to bring true facts due to lack of expertise on their part, the Workman should not suffer on this account. Here, the role of the Courts assumes significance. Thus, in the absence of any assistance rendered by the Ld. Authorised Representative (A.R) for the parties, this Court has tried to search/bring out the truth, to impart justice to the Workman which is the goal of Jurisprudence: processal as well as procedural as much as substantive.
Announced in the open Court. (SUKHDEV SINGH) On 5.8.2010. Addl. Distt. & Sessions Judge, POLC-VII, KKD Courts, Delhi.
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