Delhi District Court
Mukesh Girdhar vs M/S Laxmi Tours And Travels on 8 January, 2025
IN THE COURT OF MS. ARCHANA BENIWAL,
DISTRICT JUDGE/ POLC-V,
ROUSE AVENUE COURT COMPLEX,
NEW DELHI
LIR No : 1618/21
In the matter of :
Sh. Mukesh Girdhar Salve,
S/o Sh. Girdhar Salve,
R/o E-23, J.J Colony, Shastri Market,
South Moti Bagh, New Delhi.
...Claimant
Versus
M/s Laxmi Tours & Travels,
Shop No. 4, Market No. 1, Sector-7, R.K Puram,
New Delhi-22. ......Management
Date of Institution : 06.10.2021
Date of decision : 08.01.2025
JUDGMENT
PART A REFERENCE The Joint Labour Commissioner, Govt of NCT, Delhi while exercising his power U/s 10 (1) (c) and 12 (5) of the Industrial Disputes Act, 1947, (hereinafter referred to as the Act), r/w notification no. F-24(-126-/R/862/SWD/Lab./440 to 442, dated 16.04.2021 has sent the following reference to this court for adjudication :-
"Whether the services of Sh. Mukesh Giridhar Salve, S/o Sh. Giridhar Salve, age-47 years (Mobile No. 9654668416) have been LIR No. 1618/2021 Mukesh Girdhar Vs. M/s. Laxmi Tours & Travels 1/16 terminated illegally and/or unjustifiably by the management; and if so, to what relief is he entitled to and what directions are necessary in this respect?"
PART-B REFERENCE/CLAIM
1. As per the claimant, he was employed with the management since 01.01.2018 as 'Driver' and his last drawn monthly salary was Rs. 15,000/-. He further submitted that during the course of employment, he did not give any reason to the management to complain and the service record of the claimant was neat and clean nor he was charge-sheeted by the management. It is further submitted that the management failed to provide any legal facilities such as leave book, attendance register, wages slip, bonus, joining letter, ESI, PF, etc., to him. Further, without any reason and without any written notice, the management terminated his services on 10.09.2019 by obtaining signatures of the workman on blank papers and vouchers without making paying regarding the leave and bonus. The copy of the police complaint at PS R.K Puram in this regard is annexed. He further submitted that he visited the office of management several times and requested the management to take back him on duty but the management refused to take him back.
2. It is further claimed that the claimant (through Regd. Post), sent a demand notice dated 14.11.2019 to the management demanding his dues regarding the leave and LIR No. 1618/2021 Mukesh Girdhar Vs. M/s. Laxmi Tours & Travels 2/16 bonus and reinstatement of his services. It is further claimed by the claimant that the demand notice was received by the management but the management did not reply to the demand notice of the claimant. It is further claimed that he had served the management continuously for 20 months and the management had terminated the services illegally without paying the salary for the months from 01.06.2019 to 10.09.2019, leave, bonus, notice pay, retrenchment compensation, overtime and other legal dues.
3. It is further claimed that the claimant had made a written complaint to the Assistant Labour Officer, Pushpa Bhawan, which was forwarded to the Labour Inspector but the management flatly refused to pay the outstanding salary of the claimant nor reinstated him on the job.
4. It is further stated that the claimant approached the concerned Conciliation Officer at District Labour Office of Assistant Labour Commissioner, Pushp Vihar, New Delhi. There also, the management did not cooperate with the claimant and did not take him back on duties, neither offered him the same.
5. It is prayed by the claimant that the management may be directed to settle all the claims of the claimant, reinstate him in service with full back wages including earned wages and continuity of services with all consequential benefits and pay his litigation expenses.
LIR No. 1618/2021Mukesh Girdhar Vs. M/s. Laxmi Tours & Travels 3/16 PART-C MANAGEMENT'S STAND/REPLY
6. It is submitted by the management in their written statement the workman was working with the management on temporary/ daily basis whenever required and not permanently. It is further submitted that the management has closed down and lastly the management had cleared all the dues of the workman wherein the workman himself put his signatures upon the voucher dated 12.06.2019 and 10.09.2019 by his free will and consent. It is further submitted that the workman never came on time whenever he was required to go anywhere and the customers used to make complains against him. It is further submitted that whenever he was reprimanded for being late, he used to join at other places due to which the management had to hire some other drivers. It is further submitted that the workman had lastly worked till 31.08.2019 and all his dues cleared upon taking the signatures of the workman on voucher dated 10.09.2019 as full and final settlement. It is further submitted that there was a contradiction in the statement of the workman that on one side he had made a complaint dated 14.11.2019 stating that the management had forged his signatures on the vouchers and on the other hand the workman had stated that the management had taken his signatures on the blank papers, hence the claim is to be dismissed.
LIR No. 1618/2021Mukesh Girdhar Vs. M/s. Laxmi Tours & Travels 4/16 Part- D Rejoinder
7. The workman in his rejoinder, has denied all the averments made by the management in its written statement.
PART-E ISSUES
8. From the pleading of the parties, the Court, vide its order dated 30.09.2022 had framed the following issues for trial, reading as under : -
1) Whether the services of workman have been terminated illegally and/or unjustifiably by the management? OPW
2) Relief.
PART-F CLAIMANT'S EVIDENCE
9. The claimant tendered his evidence by way of affidavit vide Ex. WW-1/A and relied on the documents as follows:
(1) Photocopy of police complaint dated 14.11.2019 vide Mark A. (2) Original postal receipt vide Ex. WW-1/1. (3) Office copy of demand letter dated 14.11.2019 vide Ex. WW-1/2.
(4) Original postal receipt vide Ex. WW-1/3. (5) Certified True Copy of proceedings before Labour Office from 01.10.2019 to 31.10.2019 vide Ex.
WW-1/4.
LIR No. 1618/2021Mukesh Girdhar Vs. M/s. Laxmi Tours & Travels 5/16 (6) Photocopy of working slip vide Mark B. (7) Photocopy of claim filed before Conciliation Officer, Hari Nagar vide Mark C.
10. During his cross-examination, WW-1 deposed that his age was 61 years and he had mentioned his age as 49 years falsely in affidavit vide Ex.WW1/A. He further admitted his signatures at point A and B on Ex.WW1/A. He also admitted his signature in the statement of claim at point A. He denied his signatures on Ex.WW1/M1/1 (OSR) and Ex.WW1/M1/2 (OSR) at point-A. He denied that he had signed at point-A on Ex.WW1/M1/1 and Ex.WW1/M1/2 of his free will and with his consent or without any influence.
11. He further deposed that he was married and he has a wife, two daughters and one son. His son was about 6 years, his one daughter was a graduate and the second daughter was in the 2nd year of graduation. He further deposed that he belonged to a village in Maharashtra but he had no agricultural land in his native village. He further deposed that his parents were residing in his native place. He further deposed that one of his daughters was studying and her expenses were borne by his wife and ha\is other daughter. He denied that he managed the abovesaid expense. He deposed that he had his own jhuggi at 23A, South Moti Bagh, JJ Camp, Shastri Market, New Delhi-21 and he was doing driving work since the year 1984.
12. He further deposed that he joined the management on LIR No. 1618/2021 Mukesh Girdhar Vs. M/s. Laxmi Tours & Travels 6/16 01.01.2018 ( after perusal of the judicial file). He further deposed that he had left the services of the management after 04 months (but after prompting by his counsel, he stated that he was terminated from services by the management). He denied that he had left the services of the management voluntarily and he denied that he was not terminated from the services by the management. He deposed that he was aware of the contents of the facts mentioned in Ex.WW1/A. He further deposed that before joining the management on 01.01.2018, he had worked at various places. He admitted that no PF, ESI card, salary slip and appointment letter were issued by his previous employers before 01.01.2018. He further deposed that wherever he had worked before joining the employment with the present management, the employers/ owners were not providing these facilities to drivers/him.
13. He admitted that there was no agreement regarding his work as a driver executed between him and the management in written. He further deposed that wherever he had worked before joining the employment with the present management, the employers/ owners of the drivers maintained the attendance record of the drivers/him. He further deposed that the management was engaged in the work of providing the vehicles on booking. He further deposed that he got his salary in cash. He further deposed that he could not remember when he got his last salary. He denied that he had received his balance amount on 10.09.2019. He deposed that his monthly domestic expenses were around Rs.12,000/-. He deposed that LIR No. 1618/2021 Mukesh Girdhar Vs. M/s. Laxmi Tours & Travels 7/16 his wife and elder daughter were working and earning. He denied that he working.
14. He admitted that he applied for job at various places after he had left the management. He denied that he had not applied anywhere for job after he left the management. He further deposed that he used to drive the vehicle of the management from Noida to Sector-4, R.K. Puram. He denied that he used to drive the vehicle of the management only on getting bookings/ only when he was hired. He further deposed that 5 drivers were working with the management. He deposed that he did not know whether the management had stopped the work after Covid-19. He denied that he was working on daily wages with the management. He denied that at 61 years, a person can not get the job of a driver. He further denied that he was 61 years old and he had not tried for another job of a driver.
15. He further denied that any customer had made a complaint against him. He deposed that during the day, he would to do daily house work. He denied that he was working elsewhere. He deposed that he had not lodged any police complaint against the management. He further deposed that police complaint dated 14.11.2019 vide Mark A was given by his advocate and he had not filed any police complaint personally. He denied that his signatures were not taken wrongly by the management. He admitted that he was not made to sign on any blank papers by the management.
LIR No. 1618/2021Mukesh Girdhar Vs. M/s. Laxmi Tours & Travels 8/16
16. He denied that he always performed his duties with honesty, hard labour and due diligence. He denied that he never gave any chance of complaint to the management in any manner. He further denied that his services were terminated on 10.09.2019 illegally, arbitrary or unjustifiably or without following the due process of law or without giving the payment.
17. He admitted that before filing his claim before the Labour Commissioner, he had not sent any demand letter to management. He denied that after attaining the age of 60 years, no person can be employed in any company. He further denied that he had left his job on his own and without any influence or settlement. He further denied that the customers of the management used to make complaints against him regarding his misbehavior with the customers.
18. He further denied that he was unemployed since the termination of his services by the management. He denied that he was entitled for the reinstatement alongwith all back wages and services benefits. He denied that he was deposing falsely.
PART-G MANAGEMENT'S EVIDENCE
19. The management tendered its evidence by way of affidavit vide Ex. MW-1/A and relied upon vouchers dated 12.06.2019 and 10.09.2019 vide Ex. WW-1/M1/1 and Ex.
LIR No. 1618/2021Mukesh Girdhar Vs. M/s. Laxmi Tours & Travels 9/16 WW-1/M1/2.
20. During the cross-examination of MW-1, Sh. Sanjeev Jain deposed that he was the proprietor of the management and he had 5-6 vehicles and 5-6 drivers. He further deposed that he could not remember the vehicle numbers of those vehicles and those vehicles were registered in the name of the company. He admitted that whenever there used to be some booking, the management used to make a booking slip and handover the same to the driver.
21. He denied that signatures of the driver were not taken on the booking slip. He deposed that there used to be customer's signatures on the booking slip. He further deposed that the customer used to sign the booking slip at the end of the duty. He further deposed that he could not produce the booking slips from the period 2017 to 2019. He denied that there used to be driver's signatures on the booking slip and that is the reason for not production of the said documents on record. He voluntarily submitted that there used to be only customer's signatures on the booking slip.
22. He further deposed that he could not remember the exact date when the workman was kept on the temporary basis with the management. He further deposed that he had not maintained any record of the drivers regarding the duty. He further deposed that he used to pay salary by way of cash and by taking signatures on the vouchers. He further deposed that he could not produce the vouchers of all the drivers. He further LIR No. 1618/2021 Mukesh Girdhar Vs. M/s. Laxmi Tours & Travels 10/16 deposed that he had made 2 vouchers signed by the workman in June, 2019 and September, 2019 at the time of final settlement. He further deposed that he could not remember as to how many times he had given advances to the workman.
23. He further deposed that he could not tell for how many years he had continued to take the services of the workman on temporary basis. He admitted that the vouchers Ex. WW-1/M1/1 and Ex. WW-1/M1/2 had been prepared by him but did not bear the name of the management. He admitted that on Ex. WW-1/M1/1, it was mentioned that it was salary upto 31.08.2019. He further deposed that those vouchers contained the full and final payment made to the workman which comprised only of the salary of the workman for the period till 31.08.2019.
24. He denied that the signatures on Ex.WW-1/M1/1 did not belong to the workman. He admitted that no other person was present when these vouchers were prepared by him. He voluntarily submitted that the workman was present. He admitted that on Ex. WW-1/M1/2, it was mentioned that it was salary upto 31.05.2019. He deposed that he could not produce any document to prove that the management had closed down its office as on date. He admitted that customers had never filed any written complaint against the workman to him. He admitted that the workman had never handed him any resignation letter.
LIR No. 1618/2021Mukesh Girdhar Vs. M/s. Laxmi Tours & Travels 11/16
25. He deposed that the signatures of the workman on the vouchers prove that he had received the stated amount. He further deposed that he did not have any separate receiving for the same. He denied that the workman was a permanent employee of the management. He further denied that management had illegally terminated the service of the workman. He further denied that he was deposing falsely.
26. Thereafter, Management's Evidence was closed.
PART-H FINDINGS/CONCLUSION
27. After considering the claim, reply, documents and the evidence led on record and also the submissions made by the parties the decision of the court along with reasons on the issues is as follows:-
Issue No.1: Whether the services of workman have been terminated illegally and/or unjustifiably by the management? OPW
28. Decision on Issue no. 1 - Termination from service can be voluntarily or involuntary. Voluntary termination of work is when an employee resigns or abandons his work or leaves work after working out a settlement with his employer. Involuntary termination from work may happen for other reasons like when an employer dismisses a workman. As per the mandate of the Act and as per settled law, a workman is said to have been illegally terminated from work if the LIR No. 1618/2021 Mukesh Girdhar Vs. M/s. Laxmi Tours & Travels 12/16 conditions precedent to his termination from work/retrenchment are not fulfilled. In terms of section 25F of the Act, no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by the employer unless the conditions precedent thereof are satisfied. Section 25F of the Act postulates the following conditions to be fulfilled by an employer for effective retrenchment:
a) One month's notice in writing indicating the reasons for retrenchment or wages in lieu thereof;
b) Payment of compensation equivalent to 15 days average pay for every completed year of continuous service or any part thereof in excess of three months.
29. The onus to prove this issue to prove the issue of illegal termination by the management was upon the workman. After perusal of the statement of claim as well as the affidavit in evidence of the workman vide Ex.WW1/A, and the cross- examination of the workman/ WW-1, it becomes clear that the workman is not a credible witness and his testimony cannot be relied upon. In his cross-examination, he has admitted that he had mentioned his age as 49 years falsely in his evidence affidavit. In his evidence affidavit Ex.WW1/A, the workman stated that the management had taken his signatures on blank papers and vouchers at the time of terminating his services on 10.09.2019 and that he had also given a police complaint in this regard at P.S. R.K. Puram vide Mark-A. However, in his cross-examination, he firstly denied his signatures on LIR No. 1618/2021 Mukesh Girdhar Vs. M/s. Laxmi Tours & Travels 13/16 Ex.WW1/M1/1 and Ex.WW1/M1/2 and thereafter, stated that those were not signed by him of his own freewill. However, he cannot take both the stands. It could either be that the signatures on Ex.WW1/M1/1 and Ex.WW1/M1/2 were not his or that the same were his, but not with his consent. It cannot be both. The positions further clarified after perusal of his cross- examination dated 22.09.2023, wherein, he had admitted that he was not made to sign on any blank papers by the management. Furthermore, he has also denied lodging any police complaint dated 14.11.2019 vide Mark-A and stated that the same was given by his advocate. Thus, the statements made by the workman in his affidavit Ex.WW1/A, admittedly contain several falsehoods and lies.
30. The exhibits Ex.WW1/M1/1 and Ex.WW1/M1/2 have been produced by the management to show payments vide vouchers dated 12.06.2019 and 10.09.2019 towards full and final payment. The same was towards his dues of salary upto the period he had worked with the management. The workman has already admitted that he was never made to sign on any blank documents, in his cross-examination, though he had earlier stated that his signatures upon the above two vouchers were not voluntary. But since he has also stated in his cross- examination that he was never made to sign on any blank documents by the management, his signatures upon the same will be taken to be with his consent and free from any coercion or undue influence. Also, he has never denied that he had received the said payment from the management and that he LIR No. 1618/2021 Mukesh Girdhar Vs. M/s. Laxmi Tours & Travels 14/16 used to receive his payments in cash from the management.
31. In his cross-examination, the workman has also admitted that he had never sent any demand letter to the management before filing his claim before the Labour Commissioner. He has also admitted that he had left the services of the management after 04 months of joining, though, after prompting by his counsel, the workman changed his statement and stated that his services were terminated by the management. Therefore, in absence of any demand letter and considering that he had worked only for 04 months and thereafter left the service of the management, it becomes clear that no industrial dispute lies on the facts of the present case and he himself had left the service of the management and his services were not terminated by the management. Therefore, on the preponderance of the probabilities, the Court is of the opinion that the workman left the job on his own and his services were never terminated by the management. Therefore, this issue is decided against the workman.
32. Issue No. 2:- Relief.
This is the issue of relief and in view of my categorical findings, just returned, as above on the issue No.1, the workman is not entitled for any relief and his claim is liable to be dismissed. I, therefore, hereby, dismiss the claim of the applicant/workman.
LIR No. 1618/2021Mukesh Girdhar Vs. M/s. Laxmi Tours & Travels 15/16
33. With these observations the statement of claim of the workman filed under the provisions of the Act is disposed off. Reference is answered and disposed off accordingly.
34. A copy of the award be sent to the appropriate Government for its publication as per rules.
Digitally signed by ARCHANA ARCHANA BENIWAL Announced in the open Court BENIWAL Date:
2025.01.08 on 08.01.2025 15:39:07 +0530 (ARCHANA BENIWAL) DISTRICT JUDGE/ POLC-V, ROUSE AVENUE COURT COMPLEX NEW DELHI.LIR No. 1618/2021
Mukesh Girdhar Vs. M/s. Laxmi Tours & Travels 16/16