Delhi District Court
Surender Pal & Ors. vs . M/S. Vadehra Furniture Pvt. Ltd. & Anr. ... on 22 March, 2014
Surender Pal & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 75/06
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI:
KARKARDOOMA COURTS: DELHI
REFERENCE CASE (ID No. 75/06).
UNIQUE CASE ID No. 02402C0004451996.
In the matter of :
Sl. Name & Parentage of the Residential address of the workman
No. workman
01. Surender Pal S/o
02. Ram Sabad S/o Sh. Paras Village Siswa, Post - Dibri Bazar, Distt. Sant
Kabir Nagar, U.P. Also at : Shyam Colony,
Faridabad, Haryana.
03. Ranveer S/o Sh. Puran Singh Village Khalor, Post Khas, Distt.
Bulandsheshar, UP.
04. Ram Chander S/o Sh. Dhupai D - 131, Indira Kalyan Vihar, Phase - I, New
Delhi
05. Rajender S/o Sh. Cheddi Village Siswa, Post - Dibri Bazar, Distt. Sant
Kabir Nagar, U.P.
06. Prahlad S/o
07. Ram Agya S/o Sh. Jaleshwar P-80, Pilanji Village, Sarojini Nagar, New
Delhi; Permanent Address: Village Moka, Post
Laxmipur, Distt. Devaria, UP.
08. Ram Nath S/o
C/o Delhi State Kamgar Union,
Bal Mukund Khand, Giri Nagar,
Kalkaji, New Delhi - 110019 ......Workmen / Claimants
V/s.
(1) M/s. Vadehra Furniture Pvt. Ltd. (as per reference)
(VADHERA FURNITURES PVT. LTD.
as mentioned in written statement of defence)
(Vadehra Furnishers Pvt. Ltd. as used vide Ex.MW-1/1
Authority letter in favour of Mr. Anand Singh given by
Mr. Deepak Vadehra Director of Vadehra Furnishers Pvt. Ltd.)
A195196, Okhla Industrial Area,
PhaseI, New Delhi - 110020.
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(2) M/s. Sunita Vadehra & Associates (as per reference)
(M/s SUNITA VADHERA & ASSOCIATES
as mentioned in written statement of defence)
A207, Okhla Industrial Area,
PhaseI, New Delhi 110020.
.........Managements.
Date of Institution : 16.11.1996.
Date of reserving for award : 11.03.2014
Date of award : 22.03.2014
AWARD :
1. TERMS OF REFERENCE:
Vide ORDER No. F.24(4612)/96Lab./5024651 dated 07.11.1996
Secretary (Labour), Government of N.C.T. of Delhi made the following
reference under section 10 (1) (c) and 12 (5) of the Industrial Disputes Act,
1947 read with Govt. of India, Ministry of Labour Notification No.
S11011/2/75 - DK (IA) dated the 14th April, 1975 for adjudication by Labour
Court No. X:
"Whether the services of S/Sh. Surender Pal, Ram Sabad, Ranveer, Ram
Chander, Rajender, Prahlad, Ram, Agya and Ramnath have been terminated
illegally and/or unjustifiably by the management and if so, to what relief are
they entitled and what directions are necessary in this respect?"
1A. Vide ORDER No. F.25(Transfer)04/Lab./788691 dated 10.11.2004
Secretary (Labour) transferred the case to Labour Court No. VIII in exercise of
his powers under section 33 B of the Industrial Disputes Act, 1947.
1B. Vide ORDER dated 17.02.2006 case was transferred to the Court of Ms.
Nisha Saxena, Ld. POLC pursuant to orders from Hon'ble Delhi High Court
and Ld. District and Sessions Judge, Delhi.
1C. Vide ORDER dated 23.05.2006 Ms. Aruna Suresh, Ld. District &
Sessions Judge: Delhi transferred the case from the Court of Ms. Nisha Saxena,
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Surender Pal & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 75/06
Ld. POLC / FTC to the Court of Ms. Deepa Sharma, Additional District Judge /
POLC - XI.
2. CASE OF WORKMEN AS PLEADED / ALLEGED IN STATEMENT
OFCLAIM:
(Note: Statementofclaim has been signed by workmen at serial no. 2, 3, 4, 5 & 7. It
bears thumb impression of workman at serial no.6.)
(i) Management is regularly engaged in the business of furniture since last
25 years.
(ii) Details of the duration, last drawn salary & nature of work of the
workmen are as under:
Sl. No. Name Nature of Last Drawn Appointed On Dismissed On
Work Salary
01. Surender Pal Polisher 1,920/ February 1987 Ist August 1995
02. Ram Sabad Polisher 1,920/ January 1991 Ist August 1995
03. Ranveer Polisher 1,920/ March 1991 Ist August 1995
04. Ram Chander Polisher 1,644/ March 1990 Ist August 1995
05. Rajender Polisher 1,716/ January 1990 Ist August 1995
06. Prahlad Polisher 1,644/ November 1986 Ist August 1995
07. Ram Agya Polisher 2,210/ January 1988 Ist August 1995
08. Ram Nath Polisher 1,500/ October 1984 June 26
(iii) All the workmen were working on the post of 'Panters' (sic) since last
many years and were struggling to get minimum wages under the banner of the
Union. Management was not providing wages on the basis of minimum work,
annual, casual, holiday festivals, funds, bonus, E.S.I. (sic).
(iv) Management is responsible for gross violation of provisions of the
Industrial Disputes Act, 1947. The management was forcing the workmen
alongwith other workers of the establishment to work for 11 - 30 hours (sic)
and no overtime was given to workers. The management led by Mr. Deepak
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Vadhera (sic) threatened the workmen that labour office is in his pocket and it
cannot do anything for the welfare of the workers.
(v) Management intentionally retrenched the old workers and appointed the
new workers and had regularly retrenched the workers. Contract Labour
System is being practised by the management. The retrenchment was in the
violation of Chapter V B of the Industrial Disputes Act, 1947.
(vi) Some examples of arbitrary attitude of management are given below:
(a) All the workmen were paid salary of the month of December, 1994 on a
single register of M/s Vadhera Furnitures and as soon as general checking was
made by the union all the previous registers were closed and in (sic) new
register were (sic) started and salary was given on their names (sic).
(b) All the workers are paid salary for the month of January only on one
paper and salary for the month of July by Labour Inspector.
(vii) Management illegally retrenched around 75 workmen and industrial
dispute vide nos. 2480/95, 311/96, 382/96, 357/96 are pending adjudication
before this Court and ID No. 1465/96 is pending before the Court of Sh. M. L.
Guar, POLCIV, Tis Hazari, Delhi.
(viii) All the workmen are unemployed since their illegal termination (i.e.
since 01.08.1995.)
(ix) Demand letter (sic) was served upon the management on 08.07.1995,
18.07.1995 and 01.08.1995 but they were ignored by the management.
(x) The workmen have been illegally terminated and because of arbitrary,
unjustifiable and unfair labour practicing (sic) against the Industrial Disputes
Act, 1947.
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With these averments workmen prayed for their reinstatement with
continuity of service and full back wages alongwith all benefits to which the
workmen are entitled.
3. CASE OF MANAGEMENTS AS PLEADED IN WRITTEN
STATEMENTS OF DEFENCE.
SEPARATE WRITTEN STATEMENTS HAVE BEEN FILED BY
BOTH THE MANAGEMENTS. Management no.1 in its WS has taken certain
preliminary objection including that (i) this reference has been made against
two managements. Management no.1 is a company registered under the
Companies Act, and management no.2 is a sole proprietorship concern and
separate legal entity. The terms of reference does not specify which of the
claimant is making a claim against management no.1 or management no.2.
Terms of reference have been made mechanically and without application of
mind and are liable to be set aside; (ii) claimants are not covered under the
definition of section 2 (s) of the Industrial Disputes Act, 1947; (iii) terms of
reference have been made by Secretary (Labour) without application of mind
and even without considering the submissions made by the management no.1
during the conciliation proceedings and (iv) the terms of reference in the
present case have been made by the Secretary (Labour), Govt. of National
Capital Territory of Delhi who is neither authorised nor competent to do so in
as much as there is no legal valid delegation of powers in his favour to make the
terms of reference and, as such, the terms of reference and resultant
proceedings are without jurisdiction.
ON MERITS case of management no.1 is that none of the claimants
namely S/Sh. Ram Nath, Surender Pal, Ram Sabad, Ramvir (sic), Ram
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Chander, Rajender, Prahlad or Ram Agya were ever employed by management
no.1 and the claimants were never having employer - employee relationship
with management no.1. AS ALLEGED, management no.1 is a small
establishment dealing in interior construction on project to project basis as and
when the work is received on contract. There may be occasions when more
than one contract is in hand and there are also occasions when no contract is
there and, accordingly, management no.1 is keeping limited number of
workmen as its regular employees on rolls. Claimants were allegedly never
engaged by management no.1. As management no.1 never employed the
claimants, it has no knowledge about the service details of claimants as pleaded
in statementofclaim. As per management no.1, as it never employed the
claimants, the question of not providing the wages on the basis of minimum
work, annual, casual, holidays, festivals, funds, bonus, ESI etc. does not arises
at all. There is no violation of any of the provisions of the Industrial Disputes
Act, 1947 and allegations of threats allegedly extended by Mr. Deepak Vadhera
have also been denied by management no.1. The claimants have never worked
with management no.1 and, thus, the question of paying salary / wages on
vouchers does not arise at all. Management no.1 is defending all the cases in
which it has received the notices from the Courts. To the knowledge of
management no.1, claimants are in gainful employment. In any event, there are
lot of employment opportunities for the Helpers in the metropolitan city of
Delhi if somebody is interested in working. Question of termination of
services of claimants by management no.1 does not arises at all in as much as
claimants were never employed by management no.1. Management no.1 did not
receive alleged demand notices dated 08.07.1995, 18.07.1995 and 01.08.1995.
In any event, sending of demand notice, if any, does not create any right in
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favour of the claimants. At last, management no.1 prayed for outright rejection
of whole of claim of claimants.
MANAGEMENT NO.2 also took preliminary objection nos. (i), (iii)
and (iv) pleaded by management no.1. ON MERITS, it pleaded that none of
the claimants namely S/Sh. Ram Nath, Surender Pal, Ram Sabad, Ramvir (sic),
Ram Chander, Rajender, Prahlad or Ram Agya were in the employment of
management no.2 and whole claim of the claimants is wholly misconceived and
illconceived.
As per management no.2, it is a small establishment dealing in interior
decoration on project to project basis as and when the work is received on
contract. There may be occasions when more than one contract is in hand and
there are also occasions when no contract is there and, accordingly,
management no.2 is keeping limited number of workmen as its regular
employees on rolls. HOWEVER, as and when the project is in hand, the
management no.2 takes work through petty contractors, or on very urgent
requirement, takes an individual or few persons on day to day contract on daily
wages on temporary basis. As alleged, on checking the records, it has been
revealed that these persons worked for very little period due to sudden pressure
of work as casual Helper for few months in and around beginning of
_______(sic) year. For the work they were paid accordingly. Management no.
2 further clarified that these persons were not in the regular employment and
they were taken on day to day basis subject to work being there and they being
available for work. After that, they never made themselves available for work
and, in fact, there was no work for them. Management no.2 further pleaded
that, if the allegations of the claimants is that they have been working at a
project of the respondent for a Contractor, in that event for the alleged claim the
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claimants are required to contact and approach their employer and not the replying management no.1. As alleged, neither of the claimants was (sic) a 'Painter' and nine claimants worked for limited period of a couple of months as stated above and were paid accordingly. Management no.2 has denied the averments of claimants that they were paid less than the minimum wages or that they were not provided the facilities which they are entitled in law.
Further, management no.2 pleaded that there is no violation of any of the provisions of the Industrial Disputes Act, 1947 and neither of claimants was working on overtime. As alleged, claimants were working on piece rate basis and were paid accordingly. Allegations of threat have also been denied by management no.2. Management no.2 has denied the allegation of it retrenching the claimants and has pleaded that claimants were working as ad hoc employees due to temporary pressure of work and then they did not report for work. As alleged, claimants have been paid for the period they worked. Management no.2 also pleaded that, to the knowledge of management no.2, claimants are in gainful employment and in any event, there are lot of employment opportunities for the Helpers in the metropolitan city of Delhi if somebody is interested in working. As pleaded, claimants were (sic) (worked?) for a limited period on ad hoc basis and then they left on their own. Management no.2 did not receive alleged demand notices dated 08.07.1995, 18.07.1995 and 01.08.1995. At last management no.2 pleaded that none of the claimants is entitled to any relief, much less the relief of reinstatement or back wages or continuity of service. The claimants were only ad hoc for a limited period as Helper to the Painters and after that they left on their own. The limited project for which they were working have (sic) already been finished long back. Management no.2 prayed for outright rejection of whole claim of Page 8 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Surender Pal & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 75/06 claimants.
4. REJOINDER.
IN SEPARATE replications to the written statements of managements, workmen denied the stand taken by managements and reiterated the averments made in statementofclaim.
5. ISSUES On 02.08.2000, following issues were framed:
(i) Whether there exists no relationship of employee and employer between the applicants and the respondent?
(ii) As per terms of reference? 6. EVIDENCE.
Workman at serial no. 02, 03, 04 and 05 appeared in witness box as WW2 Ram Shabadh (sic), WW5 Ranveer, WW4 Ram Chander and WW1 Rajender respectively. It is noted that workman at sl. no. 07 examined himself in chief as WW3 Ram Agya but his cross examination was deferred on account of illness of ARM. It is noted that subsequently WW3 Ram Agya did not suffer his cross examination and in fact he never appeared in the Court thereafter. WE was closed on 28.07.2007 by ARW. Vide order dated 10.03.2008, ARW submitted that workmen Surender, Prehlad, Ram Agya and Ram Nath are not contesting this case. Other workmen (i.e. workmen at sl. no. 01, 06 and 08) did not appear in the witness box. Workman at Sr. No. 1 & 8 even did not sign the statementofclaim.
Management no.1 examined in chief MW1 Mr. Anand Singh vide his affidavit Ex. MW1/A. On 10.03.2008 his cross - examination was deferred for want of original documents. MW1 Mr. Anand Singh did not appear for his cross - examination and management no.1 examined MW1 Mr. Naval Kishore Page 9 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Surender Pal & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 75/06 vide his affidavit Ex.MW1/A. Evidence of management no.1 was closed on 08.06.2012 on the statement of MW1 Mr. Naval Kishore. Management no.2 examined MW2 Mr. Dilip Singh vide his affidavit Ex.MW2/A and closed her evidence on 08.06.2012 on the statement of Mr. Dilip Singh (MW2).
7. ARGUMENTS.
I have heard Ms. Poonam Kaushik, adv. for the workmen and Sh. Faiyaz Hasan, adv. for the management. Ld. counsel for workmen relied upon case laws reported as (i) Morinda Co - op. Sugar Mills Ltd. V/s Ram Kishan and Ors. etc. AIR 1996 SC 332; (ii) U.P. State Road Transport Corporation V/s C. P. Goswami 2013 LLR 1013; (iii) Bhavnagar Municipal Corporation V/s Salimbhai Umarbhai Mansuri 2013 LLR 1042; (iv) The Associated Cement Companies, Ltd. V/s Chaibasa Cement Works, Jhinkpani V/s Their Workmen AIR 1960 SC 56; (v) Honorary Secretary, South Asia Mill Owner's Association & Ors. V/s The Secretary, Coimbatore District Textile Workers' Union AIR 1962 SC 1221; (vi) State of Maharashtra & Anr. V/s Sarva Shramik Sangh, Sangli & Ors., Civil Appeal No. 2565/06 (Date of Decision 21.10.2013) (Supreme Court of India) and (vii) Amsal Chem Pvt. Ltd. V/s L. G. Prajapati C/SCA/11815/2004 Gujarat High Court (Date of decision 22.01.2013). Ld. counsel for management filed list of following citations (1) 1976 Lab. IC 1092 (AII); (2) 1975 Lab. IC 702 and (3) 46 FIP 190 Delhi. I have gone through material available on judicial file very carefully.
8. My issuewise findings are as under: A. DECISION ON PRELIMINARY OBJECTIONS At the outset, it is noted that no fault can be found to be in the ORDER OF REFERENCE merely because it does not specify which of the claimant is Page 10 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Surender Pal & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 75/06 making a claim against management no.1 or management no.2. The act of making a reference to the Labour Court is an administrative act & Secretary (Labour) while performing such an act cannot adjudicate the disputes between the parties on merits. The adjudication on facts / merits is to be made by the Labour Court in exercise of its quasijudicial functions under the Industrial Disputes Act, 1947. Also it is noted that reference in hand has been made by Secretary (Labour) Govt. of N.C.T. of Delhi in exercise of his powers under section 10(1) (c) and 12(5) of the INDUSTRIAL DISPUTES ACTS, 1947 read with Govt. of India, Ministry of Labour Notification No.S11011/2/75 - DK (IA) dated 14th April, 1975. Full bench of Hon'ble Delhi High Court in case law reported as India Tourism Development Corporation Vs. Delhi Administration and Ors. MANU/DE/0297/1982 has upheld the validity of this Notification. Thus, reference has been made by Secretary (Labour) in due exercise of his powers.
B. APPLICABILITY OF PROVISIONS OF SECTION 25N, CHAPTER VB OF THE INDUSTRIAL DISPUTES ACT, 1947.
The TERMS OF REFERENCE in hand pertains to 08 workmen whose services have been allegedly terminated arbitrarily on 01.08.1995 and June 26 (sic). Be that as it may. Workmen are alleging violation of the provisions of section 25N, Chapter VB of the Industrial Disputes Act, 1947. As per section 25K(1), the provisions of Chapter VB of the Industrial Disputes Act, 1947 shall apply to an 'industrial establishment' (as defined under section 25L of the Industrial Disputes Act, 1947) (not being an establishment of a seasonal character or in which work is performed only intermittently) in which not less than one hundred workmen were employed on an average per working day for Page 11 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Surender Pal & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 75/06 the preceding twelve months. It is for the workmen to establish on Judicial file that this requirement of section 25K(1) of the Industrial Disputes Act, 1947 is satisfied before workmen can seek protection / applicability of the provisions of section 25N of the Industrial Disputes Act, 1947.
Workmen in this case have not even pleaded the requirements of section 25K(1) so as to attract the provisions of section 25N of the Industrial Disputes Act, 1947. Also there is no evidence on judicial file to make this Court to conclude that management(s) employed not less than 100 workmen on an average per working for the preceding twelve months. Thus, it is held that workmen have failed to establish on judicial file that the provisions of section 25N, Chapter VB, Industrial Disputes Acts, 1947 are applicable in this case. Thus, this Court will proceed to answer the reference keeping in view the provisions of Chapter VA of the Industrial Disputes Act, 1947.
At this juncture it is pertinent to note that Hon'ble Supreme Court of India in case law reported as S. M. Nilajkar and Ors. Vs. Telecom District Manager, Karnataka (2003) 4 SCC 27 with regard the provisions of section 2 (oo) (bb) of the Industrial Disputes Act, 1947 observed as under: "13. The termination of service of a workman engaged in a scheme or project may not amount to retrenchment within the meaning of sub clause (bb) subject to the following conditions being satisfied:
(i) that the workman was employed in a project or scheme of temporary duration;
(ii) the employment was on a contract, and not as a daily wager simpliciter, which provided inter alia that the employment shall come to an end on the expiry of the scheme or project;
(iii) the employment came to an end simultaneously with the termination of the scheme or project and consistently with the terms of the contract; and
(iv) the workman ought to have been apprised or made aware of the abovesaid terms by the employer at the commencement of Page 12 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Surender Pal & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 75/06 employment.
14. The engagement of a workman as a dailywager does not by itself amount to putting the workman on notice that he was being engaged in a scheme or project which was to last only for a particular length of time or up to the occurrence of some event, and therefore, the workman ought to know that his employment was shortlived. The contract of employment consciously entered into by the workman with the employer would result in a notice to the workman on the date of the commencement of the employment itself that his employment was shortlived and as per the terms of the contract the same was liable to termination on the expiry of the contract and the scheme or project coming to an end. The workman may not therefore complain that by the act of the employer his employment was coming to an abrupt termination. To exclude the termination of a scheme or project employee from the definition of retrenchment it is for the employer to prove the abovesaid ingredients so as to attract the applicability of subclause (bb) abovesaid. In the case at hand, the respondent employer has failed in alleging and proving the ingredients of sub clause (bb), as stated hereinabove. All that has been proved is that the appellants were engaged as casual workers or dailywagers in a project. For want of proof attracting applicability of subclause (bb), it has to be held that the termination of the services of the appellants amounted to retrenchment."
Also Hon'ble Supreme Court of India in L. Robert D' Souza (1982) 1 SCC 645 held that section 25F of the Industrial Disputes Act, 1947 is applicable to a daily rated worker.
C. CERTAIN OBSERVATIONS REGARDING PLEADINGS OF THE PARTIES.
The ORDER OF REFERENCE mentions two managements.
Statementofclaim also mentions / has been filed against two managements. Management no.1 is a company incorporated under the provisions of the Companies Act, 1956 and management no.2 is a sole proprietorship concern.
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Workmen have not pleaded as to, they were employed by / under which of the management(s) and which of the managements terminated the services of each individual workman. Workmen even did not plead as to how both the managements are related / interlinked with each other. It is important to note that workmen in the statementofclaim have not even pleaded that after the alleged termination of their services by the management(s), they even tried for alternate service. They have not also pleaded in the statementofclaim that they despite efforts to get fresh job / service are still unemployed. Workmen simply pleaded that all the workmen are unemployed since their illegal termination (i.e. since 01.08.1995). In such circumstances, workmen are not entitled to full back wages. Depositions in the affidavits, if any, in the absence of pleading in statementofclaim do not serve any purpose in as much as evidence without supporting pleadings is no evidence. ISSUE No.1:
Whether there exists no relationship of employee and employer between the applicants and the respondent?
In this case management no.1 denied existence of employer - employee relationship between it and the workmen. On the other hand, management no.2 pleaded that as and when the project is in hand, the management no.2 takes work through petty contractors, or on very urgent requirements, takes an individual or few persons on day to day contract on daily wages on temporary basis. As per management no.2, on checking the records, it has been revealed that these persons worked for very little period due to sudden pressure of work as casual Helpers for few months in and around beginning ______ (sic) year and there were paid accordingly. Management no.2 further clarified that these persons were not in regular employment and they were taken on day to day Page 14 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Surender Pal & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 75/06 basis subject to work being there and they being available for work. Management no.2 further pleaded that claimants were working on piece rate basis and were paid accordingly. Management no.2 also pleaded that claimants were working as adhoc employees due to temporary pressure of work and then they did not report for work / left on their own. Thus, it is observed that management no.2 admittedly availed the services of workmen / claimants. Management no.2 has not specifically pleaded that it availed the services of workmen / claimants through contractors. Thus, it is further observed that management no.2 directly availed the services of workmen / claimants. Even otherwise management no.2 has not disclosed the details of the alleged petty contractor. No such petty contractor has been examined by management no.2. Also, it is noted that management no.2 has not produced the relevant record on checking of the same it came to know that claimants worked for very little period due to sudden pressure of work. Management no.2 has not, also, pleaded the period for which it availed the services of workmen / claimants. Since, admittedly, management no.2 was possessing the records mentioning the alleged service tenure of claimants / workmen with it, but still did not produce the record before the Court adverse inference may be drawn against the management no.2 and Court may proceed with assumption that the period of service tenure as deposed by workmen / claimants on oath is correct. D. Admittedly, there did exist relationship of employer and employee between the management no.2 and claimants / workmen. It is observed that such a relationship do exist even if employees are employed by employer on casual / adhoc / day to day / piece rate basis keeping in view the nature / extent of control and supervision of the employer on the work and conduct of the employee during the course of employment. Management no.1 in its WS Page 15 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Surender Pal & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 75/06 denied the existence of such relationship with the claimants / workmen. MW1 Mr. Naval Kishore in his cross - examination deposed that, ".... I do not know what had been stated in the WS filed by the Management no.1 in the present case. I have not read the contents of my evidence from para. 1 to 7 of my affidavit Ex.MW1/A. I know the claimants of the present case. I know them because they were working on sites and I also used to go to the sites. I have not filed any legal record like attendance register and wages register etc. pertaining to these claimants prior to 1995.......... It is correct that Sh. Deepak Vadehra and Ms. Sunita Vadehra are the husband and wife. It is correct that the nature of the work is same in both the Management establishments. Usually the workers from Vadhera Furnitures were not called by the Sunita Vadhera Associates and only in case of emergent situations, one or two workers were called by the Sunita Vadhera Associates from Vadhera Furnitures............". MW1 Mr. Naval Kishore deposed that he does not know what had been stated in the WS. Thus, management no.1 can be said to have failed to establish its stand on judicial file as no other witness has been examined by management no.1 to prove its stand on judicial file. As per depositions of MW1 Mr. Naval Kishore, he knows the claimants as they were working on sites and MW1 Mr. Naval Kishore used to go on the sites. MW1 Mr. Naval Kishore has not filed legal record like attendance register and wages register etc. pertaining to these claimants prior to 1995. MW1 Mr. Naval Kishore did not depose that workmen / claimants were never engaged / employed by management no.1. In view of depositions of MW1 Mr. Naval Kishore made by him in his cross examination, it can be said that there did exist relationship of employer and employee between the management no.1 and workmen / claimants. Issue is decided accordingly.
Page 16 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Surender Pal & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 75/06 ISSUE NO. 2: As per terms of reference.
("Whether the services of S/Sh. Surender Pal, Ram Sabad, Ranveer, Ram Chander, Rajender, Prahlad, Ram, Agya and Ramnath have been terminated illegally and/or unjustifiably by the management and if so, to what relief are they entitled and what directions are necessary in this respect?") Out of 08 workmen only 06 workmen (at Sr. No. 2, 3, 4, 5, 6, 7) signed / thumb impressed / filed the statementofclaim. Out of these 06 workmen only 05 workmen appeared in the witness box. Only four of them suffered cross examination by the ld. counsel of managements and WW3 Ram Agya did not appear for his cross examination. As submitted by ld. counsel for workmen, workmen at Sr. No. 1, 6, 7 and 8 are not contesting this case. Thus, now Court is to adjudicate upon the claims of 04 workmen / claimants only who have appeared in the witness box and also suffered crossexamination by the ld.
counsel for managements. Court, thus, proceeds to decide the claims of these 04 workmen: SERIAL NO. 02 RAM SABAD Workman at Serial Number 02 appeared in witness box as WW2 Ram Sabad and in his evidence affidavit deposed that he was working with management as 'Polisher' since January 1991 till 01.08.1995 and his last drawn wages were Rs. 1920/. In his cross examination WW2 Ram Sabad has been made to depose that as follows: "I had joined Vadehra Furnishers Pvt. Ltd. And Other (management no.1) in the year 1990. I served in the Vadehra Furnishers till October/November, 1995. I used to work in all the three companies belonging to Vadehra Furnishers. I have no documentary proof except the letters Ex.WW2/X1 and Ex.WW2/X2 and WW2/X3 and WW2/X4 i.e. the delivery challan of Vadehra Furnishers to show that I had been working in the three companies of the Vadehra Furnishers. I am 5 th class pass. I came to Delhi in 1977. At that time, I was about 12 - 13 years old. At that time also, I used to do the work of polishing the furnitures. It is wrong to suggest that I was not being paid any monthly salary by the management Page 17 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Surender Pal & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 75/06 or that I was being paid on Daily Wages Basis. I have no proof of getting any salary from the management. I was asked to sign sometimes on the register and sometimes on the voucher by the company at the time of withdrawing my salary. I know the work of polishing the furnitures from the age of 1213 years. It is wrong to suggest that Sh. Veeturi and Sh. Ram Lakhan were working as Contractors in Vadehra Furnishers or that I was working under them. Vol. They were also working as "Karigars" with me. I was getting the salary of Rs.1920/ per month in the year 1995. I used to do the work of polishing including melament and lacker. Prior to working with the present management. I was working at Sita Juneja Furnitures Company. It is wrong to suggest that I never did the work of Polishing or that I am not expert in work of polishing. I am not working on regular basis anywhere after 1995 as I did not get any job despite search. I am working only on Daily Wages basis as and when I get the work. I am married. I have 5 children. My children are living in the village. I had not worked at Hotel Park and Hotel Oberoi. WW1, Rajender, my brother was also working with me in the management. Vol. Sometimes, he used to work in the company and sometimes he used to work at the sites wherever he was sent. It is wrong to suggest that I was being engaged by the management only when the management used to get the work. Vol. I used to work for 12 hours everyday. Sh. Batohi, Sh. Kalicharan, Sh. Ram Lachan and Sh. Padnabhan and all the other 3035 workmen were working with me. It is wrong to suggest that we were being paid "Item Wise". Vol. we were being paid regular salary. I used to come to my job at 8.30 am and used to leave sometimes at 5.30 pm and sometimes at 7.30 pm. Our attendance was not being marked anywhere. I do not know whether Anand Singh used to mark our presence. It is wrong to suggest that I was working under a Contractor who used to supervise our work. It is wrong to suggest that Ram Lakhan, Vitori and A.P. Raman used to supervise our work. It is wrong to suggest that the Contractor used to raise the bills to the management and then the management used to make payments to us. It is wrong to suggest that I had left the work voluntarily in the year 1995 and had gone to my village. I was working with Vadehra Furnishers. I do not remember my salary in the beginning when I joined Vadehra Furnishers. I do not know how many workers have already settled the matter with the management. I am running my livelihood and expenditure of the education of my children by getting some remuneration by doing labour work and by getting some agricultural income. I am not sending any money to my children".
Admittedly, managements availed the services of workmen. Stand of the management that workmen worked through contractor is not believable in Page 18 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Surender Pal & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 75/06 the absence of specific pleadings / details of such contractors and their examination in Court in support of the case of management. Even if it is assumed that workmen was paid itemwise, as suggested in his cross examination but denied by workmen, it does not mean that there existed no relationship of employer and employee between the managements and workman. Managements have not pleaded about the period for which they availed the services of workman. Management no.2 did not produce the said record despite availability. Thus, workman's depositions on oath are to be believed. There is no proof of compliance with the provisions of section 25F of the Industrial Disputes Act,1947 by the managements.
MW1 Mr. Naval Kishore has not denied the visit of labour inspector and conducting of general checking. He (MW1 Mr. Naval Kishore) has also not denied the initiation of conciliation proceedings and receipt of notices issued by A. L. C. South. He has also not denied the general checking conducted on 10.01.1995. MW Mr. Dilip Singh deposed that, "........... It is correct that the document i.e. demand notice Ex.WW1/1 was duly received by the Management no.2 M/s Sunita Vadehra and Associates. I do not remember the aforementioned demand notice was replied by the Management no.2 or not. It is correct that on 05.07.1995 and on 06.07.1995 a labour inspector visited the premises of the Management no.2 and gave the report Ex.WW1/7.........". Above depositions of MW2 Dilip Singh are not consistent with the stand of management no.2 taken in the WS.
Preponderance of probabilities support the case of the workman. In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the workman to the tune of Rs. 96,000/ (Rupees Ninety Six Thousand only) in lieu of reinstatement / loss on account of illegal Page 19 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Surender Pal & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 75/06 termination of his services payable by the managements jointly and severally to the workman would meet the ends of justice. Ordered accordingly. SERIAL NO. 03 RANVEER Workman at Serial Number 03 appeared in witness box as WW5 Ranveer and in his evidence affidavit deposed that he was working with management as 'Polisher' since March 1991 till 01.08.1995 and his last drawn wages were Rs. 1920/. In his cross examination WW5 Ranveer has been made to depose that as follows: "I cannot read or write English. I cannot say as to what is written in Ex.WW5/A. My affidavit has been prepared by my counsel. I cannot say as to whether I was employed with management no.1 and management no.
2. I cannot say the address of management no.1 or management no.2. I had started working with the management in the year 1990 but I do not remember the month. I worked in the Vedehra Furnishers till 1995. I was removed from my job by Deepak Vadehra. However, I cannot give the date when I was removed. I had documents of my employment but the same became delipredated due to passage of time. It was about 3 - 4 years ago, when the documents got destroyed. I filed the claim in the 1995. I have not placed the said documents when I filed the claim. I used to do the job of polishing. I came to Delhi in the year 1980. Before coming to Delhi, I used to do the same job. I came to Delhi from my native village where I used to do the labour job. I learnt the job of polishing at Mehroli, Delhi with M/s Siddiqui's who are no running export business from the same premises. I have special qualification by doing any diploma or course in polishing. It is wrong to suggest that I had never worked with the management no.1 and management no.2. I have never worked with any contractor. I went to Hotel Park Royal, Nehru Place for one day for making a sample. It is wrong to suggest that I used to be ideal when management had no work. Vol. Management always had work. I used to come to the factory at 8.00 am. I used to do the work of polishing from the early morning. Our attendance used to be taken on a register. I used to go back at about 5.30 pm and if we had overtime, it used to be 7.30 pm. It is wrong to suggest that our work was supervised by Contractor. Vol. It was supervised by Anand Singh who was the head of the company. It is wrong to suggest that Ram Lakhan, Vitory also used to supervise my work. We used to get salaries once in a month. It is wrong to suggest that no wages used to be paid to us when there was no work with the Page 20 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Surender Pal & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 75/06 company. It is wrong to suggest that we used to get paid only for the days we worked. Vol. It was a fixed monthly salary. It is wrong to suggest that I was a daily wager. I used to go to my native village. The employer used to cut my salary for the days, I used to stay at my native village. No PF or ESI was deducted by the management. The other 3 - 4 people employed with the management had these deductions made. There were about 810 people employed with the management. There were about 7080 polishers in the company. I used to get about Rs.1700/ per month. At the time of my joining, I used to get lesser amount i.e. about Rs.1500/ per month. It is wrong to suggest that I was employed by the contractor. It is wrong to suggest that I was not employed with any of the managements. It is wrong to suggest that I am deposing falsely".
Admittedly, managements availed the services of workman. As already discussed, managements version that workman worked with contract cannot be believed. Preponderance of probabilities support the case of the workman. In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the workman to the tune of Rs. 96,000/ (Rupees Ninety Six Thousand only) in lieu of reinstatement / loss on account of illegal termination of his services payable by the managements jointly and severally to the workman would meet the ends of justice. Ordered accordingly. SERIAL NO. 04 RAM CHANDER Workman at Serial Number 04 appeared in witness box as WW4 Ram Chander and in his evidence affidavit deposed that he was working with management as 'Polisher' since March 1990 till 01.08.1995 and his last drawn wages were Rs. 1664/. In his cross examination WW4 Ram Chander has been made to depose that as follows: "I cannot read and write English. I cannot say as to what is written in Ex.WW4. Vadehra Furnishers used to operate from 195196, Okhla PhaseI, Delhi. I do not know as to from where Smt. Sunita Vadehra, Management no.2 is operating. I do not know if Smt. Sunita Vadehra used to operate from A207, Okhla Industrial Area, PhaseI, New Delhi. I cannot say if the respondents/management no.1 and 2 operate from two different premises. I had the documentary proof regarding my employment Page 21 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Surender Pal & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 75/06 with the management but the same have been destroyed by the rats. My salary used to be paid by the staff of the management, namely, Mukesh and Anand. The said Mukesh and Anand were employees of management no.1. I do not have any documentary proof in respect of the salary paid to me. I used to do the job of polishing. I have been doing the job of polishing since 1985 - 86. I have no special qualification in respect of job of polishing. I have been staying out of my native place since very beginning. I came to Delhi in the year 198586. Prior to coming to Delhi, I was staying at Kanpur, U.P. At Kanpur, I used to work at the shop of a "Halwai". It is wrong to say that I have not done the job of polishing before joining Vadehra Furnishers, management. Earlier I did not job of polishing with Sita Juneja, Ahujas at Z72, Phase2, Okhla. I am doing labour work whichever is available to me. It is wrong to suggest that I do not know the job of polishing. I have three children and wife who are staying at my native place in UP. It is occasionally when I have some money which I sent to my family. I have worked in Hotel Park Royal, Nehru Place Delhi on the asking of the management. I do not know as to any contract was awarded to the management at Park Hotel for that job. Most of the times, I was working in the factory of the management. I used to be working whether the company procured some work or not. I used to reach factory at 8.00 am. There used to be our attendance. They used to obtain our signatures occasionally. Our timing in the evening were sometimes 4.30 pm and sometimes 8.00 pm. It is wrong to suggest that I used to be employed with a contractor. It is wrong to suggest that it is the contractor who used to pay the wages to me for the item wise work done by me. I do not remember as to what was my age when I started doing the polishing work. I have no idea as to the other regular staff of the management were given the benefits of PF and ESI. I do not know as to how many workman have settled their disputes with the management. It is wrong to suggest that I am deposing falsely".
Admittedly, managements availed the services of workman. As already discussed, managements version that workman worked through / with contractor cannot be believed. Preponderance of probabilities support the case of the workman. In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the workman to the tune of Rs.96,000/ (Rupees Ninety Six Thousand only) in lieu of reinstatement / loss on account of illegal termination of his services payable by management no.1. to the workman would meet the ends of justice. Ordered Page 22 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Surender Pal & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 75/06 accordingly.
SERIAL NO. 05 RAJENDER Workman at Serial Number 05 appeared in witness box as WW1 Rajender and in his evidence affidavit deposed that he was working with management as 'Polisher' since March 1990 till 01.08.1995 and his last drawn wages were Rs. 1716/. In his cross examination WW1 Rajender has been made to depose that, "The affidavit bears my signatures which was drafted on my instructions. I am working with the management since 1990. I was terminated in the year 1995. I have one identity card to show that I am Rajinder issued by Oberoi Hotel. This was issued to me as I was being sent by my company Wadhera Furniture to work there. I did not work in Sunita Wadhera and Associate. I worked in Wadhera Furniture. I have no document to show that I was kept on job by Wadhera Furniture.
Q. I put it to you that you were being paid the salary by the Contractor Veeturi and Ram Lakhan?
Ans. It is incorrect. I was being paid salary by Wadhera Furniture.
I have no prooof to show that what was my salary. I used to polish the furniture. I have no diploma etc. for the same. Q. What were you doing before joining the management? Ans. I was doing the same work of polishing the furniture. Q. I put it to you that you do not know the polishing work?
Ans. It is incorrect.
I am not doing anything after I was terminated. I am married having 5 children.
Q. Where you worked for management including Park Hotel and Oberoi Hotel?
A. Yes, I worked in the Park Hotel and Oberoi Hotel for the company.
It is incorrect to suggest that my services used to be hired by the management only when the management was having contract work. It is incorrect to suggest that I was not given work by the management in intervals. The names of other persons who were working with me are Batoi Prasad, Kali Charan, Ram, Lachhan etc. I am not aware that some of them have settled the matter with the management. It is incorrect to suggest that I was doing the work for the contractor. I was not paid item wise. I was paid on monthly basis. I used to come for job at 8.00 A.m. And used to off at 7.30 P.M. I was not to mark my presence. One Anand Singh of the used to mark attendance on the register. My work used to be supervised by one Bhagwati and not by the contractor. My salary used to Page 23 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Surender Pal & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 75/06 be paid the then manager Mr. Mukesh and some time by Anand, the then manager.
Q. I put it to you that Ram Laxman, Vithori and A. P. Raman used to supervise your work?
Ans. The above named workers were not supervisor bu working with me.
It is wrong to suggest that management. Make a payment fortnight. It is wrong to suggest that I was not working with Wadhera Furniture. It is further wrong to suggest that I am deposing falsely. It is wrong to suggest that I was being paid only for the days work done. It is wrong to suggest that I left the services of my own and went to my native village".
Admittedly, managements availed the services of workman. As already discussed, managements version that workman worked through / with contractor cannot be believed. Preponderance of probabilities support the case of the workman. In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the workman to the tune of Rs.96,000/ (Rupees Ninety Six Thousand only) in lieu of reinstatement / loss on account of illegal termination of his services payable by management no.1. to the workman would meet the ends of justice. Ordered accordingly.
8A. If the abovesaid award amount is not paid to the workman / workmen within one month of the publication of award, workman / workmen shall be entitled to interest on the award amount @ 9% per annum from the date of the award till its payment by the management(s).
9. Each of the abovesaid workmen who have been granted lump sum compensation as above by this Court are also held to be entitled to receive a sum of Rs.20,000/ (Rupees Twenty Thousand only) (each) from the management as cost of litigation.
Page 24 to 25 (ANAND SWAROOP AGGARWAL) POLC- XI / KKD / DELHI / 22.03.2014 Surender Pal & Ors. Vs. M/s. Vadehra Furniture Pvt. Ltd. & Anr. ID No. 75/06
10. Reference is answered accordingly.
11. A copy of the award be sent to the Office of the Deputy Labour Commissioner (District West) for further necessary action.
12. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 22.03.2014
(ANAND SWAROOP AGGARWAL)
POLCXI, Karkardooma Courts, Delhi
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