Delhi District Court
Sh. Akhilesh Yadav S/O Sh. Bhagauti Deen ... vs M/S Omega Business Solution Pvt. Ltd on 30 August, 2018
IN THE COURT OF SH. RAKESH KUMARI
PRESIDING OFFICER LABOUR COURTX
DWARKA COURTS, DELHI.
Ref. No. : F.3 (253)/12/Ref./WD/LAB/983
Dated : 24.08.2012
I.D.No. : 4728/16
Sh. Akhilesh Yadav S/o Sh. Bhagauti Deen Yadav,
R/o Z208, Prem Nagar - 2, Kiradi Suleman,
Delhi - 110041.
C/o All India General Mazdoor Trade Union (Regd.),
170, Bal Mukand Khand, Giri Nagar,
Kalkaji, New Delhi - 110019. .................. Workman.
AND
M/s Omega Business Solution Pvt. Ltd.
B1/10, IInd Floor, B1 Community Centre,
Janak Puri, New Delhi110058
Head Office
42,43 Kakkar Industrial Estate,
Lady Jamshed Ji Cross Road No. 3,
Mumbai (West) Mumbai400016 .............. Management.
Date of Institution of the case : 18.10.2012
Date on which reserved for Award : 08.08.2018
Date on which Award is passed : 30.08.2018
A W A R D
The workman raised an industrial dispute before the Labour
Department against the termination of his services by the management claiming
that his services have been terminated by the management illegally and
unjustifiably and the appropriate Government on being satisfied with regard to
I.D.No. 4728/16 Page No. 1 out of pages 12
existence of an industrial dispute between the parties, referred the dispute to the
Court for adjudication under Section 10 (I) (c) and 12 (5) of the Industrial
Disputes Act vide order no. F.3 (253)/12/Ref./WD/LAB/983 dated : 24.08.2012
with the following terms of reference:
"Whether the services of workman Sh.
Akhilesh Yadav S/o Sh. Bhagauti Deen Yadav
has 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?"
The workman filed his statement of claim stating therein that he had
been in the employment of the management since 16.01.2011 on the post of Skip
Tracer and his last drawn salary was Rs.9,000/ per month. The work and
conduct of the workman was satisfactory and there was neither any complaint
against his work nor any charge against him. The management was not providing
the legal facilities such as appointment letter, leave book, pay slip, attendance
card, weekly & annual leaves and the facilities like bonus, double overtime, house
rent allowance, traveling allowance etc. to the claimant/workman. The workman
had been demanding the above said legal facilities from the management, upon
which the management got annoyed and without giving any show cause notice or
charge sheet terminated the services of the workman on 30.04.2012 withholding
the earned wages of the claimant/workman w.e.f. 01.01.2012 to 29.04.2012.
While terminating the services of the workman, the management obtained the
signatures of the workman forcibly on some plain papers and vouchers. The
workman served a demand notice dated 02.05.2012 upon the management but the
I.D.No. 4728/16 Page No. 2 out of pages 12
management neither replied the demand notice nor complied with the same. The
workman through his union made his complaint before the Assistant Labour
Commissioner but the management did not reinstate the workman despite the
intervention of the Labour Inspector. The management used to take four hours
overtime daily from the workman, the payment of which was not made by the
management despite repeated requests. The conciliation proceedings failed and
ultimately, the dispute was referred to the Court with the above said terms of
reference. The workman has stated that he is unemployed since the date of his
illegal termination as he could not find any alternative job despite his efforts.
Accordingly, the claimant/workman has prayed that the management may be
directed to reinstate him in service with full back wages, continuity of service and
all consequential benefits.
Notice of the statement of claim was issued to the management. The
management appeared and filed its written statement. The main contentions of
the management are that the claimant is not a workman as defined under Section
2 (s) of the Industrial Disputes Act, 1947 (as amended up to date) as admittedly,
the claimant was working as a Skip Tracer with gross monthly salary of
Rs.9,000/ and the nature of the duties vested to him were managerial/supervisory
in nature and despite opportunities given to the claimant/workman he failed to
achieve the targets of the company and the claimant/workman was extremely
irregular in attending his duties. The management has further stated that the
employment of the claimant was terminated by the management by way of a
simple discharge on 30.04.2012, as such, it has been stated that the present
reference is misconceived as not maintainable. The management has further
stated that the workman has received a sum of Rs.17,800/ from the management
I.D.No. 4728/16 Page No. 3 out of pages 12
towards all his outstanding dues for the period 01.03.2012 to 29.04.2012 before
the Authority under Delhi Shops and Establishment Act, 1954, which the
claimant filed before the said authority. Accordingly, it has been submitted that
there is no illegal termination of the services of the claimant/workman by the
management. All other allegations were denied and it has been prayed that the
statement of claim of the workman may be dismissed.
No rejoinder to the written statement of the management was filed by
the workman.
From the pleadings of the parties, the following issues were framed on
05.06.2015:
(i) Whether the claimant is not a workman within the definition
of workman as provided under Section 2(s) of the I.D. Act
as according to the management he was working in the
managerial capacity, if so, its effect? OPM
(ii) Whether despite the opportunity, the claimant failed to
achieve the target of the company and whether the claimant
was unable to reach the target as he was irregular as alleged
by the management, if so, its effect? OPM
(iii) Whether the employment of the claimant was terminated by
the management by way of a simple discharge on
30.04.2012 as claimed by the management, if so, its effect?
OPM
(iv) Whether the present reference is misconceived and not
maintainable as alleged by the management? OPM
(v) Whether the claimant has received Rs.17,800/ from the
I.D.No. 4728/16 Page No. 4 out of pages 12
management towards his outstanding dues for the period
01.03.2012 to 29.04.2012 before the Authority under Delhi
Shops & Establishment Act, 1954, which the claimant filed
before the said authority, if so, its effect? OPM
(vi) Whether the services of the workman were terminated by
the management illegally and unjustifiably and if so, its
effect? OPW
(vii) As per terms of reference.
(viii) Whether the claimant is entitled to the relief claimed in the
statement of claim? OPW
(ix) Relief.
It is pertinent to mention here that an application U/s VI Rule 17
alongwith Order 14 Rule 5 r/w Sec.151 CPC was preferred by the management,
reply to the said application was also filed on behalf of workman and then upon
hearing of arguments, vide order dated 09.11.2016, the said application was
allowed and amended Written Statement of management was allowed to be taken
on record, subject to payment of cost of Rs.2,000/. No rejoinder to the amended
Written Statement of management was filed by the workman and then vide order
dated 11.11.2016, the following additional issues have framed:
(A). Whether the management has closed down its operations
in Delhi w.e.f. July 2014, if so, its effect? OPM.
(B). Whether the workman has not completed the continuous
service of 240 days with the management in the year
immediately preceding the alleged date of alleged
termination, if so, its effect? OPM
I.D.No. 4728/16 Page No. 5 out of pages 12
Thereafter, the case was fixed for workman evidence.
In his evidence, the workman has tendered his evidence by way of
affidavit as Ex.WW1/A, wherein he reiterated the contents of his statement of
claim. He also placed reliance upon the documents Ex.WW1/1 to Ex.WW1/6.
Ex.WW1/1 is the office copy of complaint dated 24.04.2012 written
on behalf of workman to the Assistant Labour Commissioner; Ex.WW1/2 is the
claim filed by the workman before the Conciliation Officer; Ex.WW1/3 &
Ex.WW1/4 are the Postal Receipts; Ex.WW1/5 is the Demand Letter sent by the
workman to management and Ex.WW1/6 is the photocopy of offer of
employment dated 23.12.2011.
During the course of his cross examination, WW1 stated that he
joined the management on 16.01.2011 as Skip Tresser. He conceded that on
23.12.2011, offer letter of employment was given to him by the management and
his date of employment has been mentioned as 24.12.2011. He clarified that he
was given the offer letter by the management, one year after joining of his service
with the management. He denied that he has not completed 240 days continuous
service immediately preceding the alleged date of termination. He conceded that
in his letter of offer of appointment dated 23.12.2011 Ex.WW1/6 in para no.2,
nature of his duties has been specifically mentioned as Managerial / supervisory
in nature. He clarified that his job was of clerical in nature as under his duty
customer were traced and he was not having any supervisory or managerial
powers as no one was working under him. He stated that he worked with the
management till 30.04.2012. He denied that he joined the management on
24.12.2011. He clarified that he joined the management on 16.01.2011 but the
offer letter was given to him in December 2011. He conceded that he has no
I.D.No. 4728/16 Page No. 6 out of pages 12
documentary proof to show that he joined the management in January 2011. He
further conceded that he was given offer of employment by the management vide
letter dated 23.12.2011 Ex.WW1/6. He also conceded that he had filed a case
under Delhi Shops & Establishment Act and received Rs.17,800/ from the
management for the period 01.03.2012 to 29.04.2012 before the authority under
Delhi Shops & Establishment Act, 1954 through cheque. He denied that he has
received his full and final dues from the management and now he has no claim
against the management. He clarified that he was not given any compensation
regarding his termination. He stated that he is unemployed since the date of his
termination. His expenses are being borne by his father. He is married having
one daughter, aged about 3 years. He confirmed that he is physically and
mentally fit and able person. He used to apply for job but could not get job
anywhere else. He could not produce any application or other document to show
that he applied for job anywhere else. He showed his ignorance if the
establishment of the management has been closed since July 2014.
Thereafter, the Workman evidence was closed and case was fixed for
management evidence.
In its defence, the management examined Sh. Pankaj S. Joshi
(Director/ Authorized Representative of the management company) as MW1,
who tendered his evidence by way of affidavit. Same is MW1/A. He also relied
upon the documents Ex.MW1/1, Mark A, Ex.MW1/2, Mark B and Mark C.
Ex.MW1/1 is the office copy of the offer of employment dated
23.12.2011 of claimant alongwith original Joining Report (ten pages); Mark A is
the photocopy of order dated 30.08.2013 passed in S&E/108 to 114/12/WD by the
Authority under Delhi Shops & Establishment Act, 1954; Ex.MW1/2 is the
I.D.No. 4728/16 Page No. 7 out of pages 12
receipt of the Demand Draft bearing no.019080 dated 10.12.2013 drawn on ICICI
Bank Mark B is the photocopy of Closure notice dated 31.05.2014 and Mark C is
the photocopy of Postal Receipt dated 24.06.2014.
During cross examination by AR of the Workman, he stated that he is
the Director of management. Approximately, 3040 employees were employed
with the management in the year 20112012. The claimant joined the
management on 24.12.2011 as a Skip Tracer. He denied that the claimant joined
the management w.e.f. 16.01.2011 as a Skip Tracer. About 57 other employees
were working under the claimant. The management issued appointment letter to
the claimant Ex.MW1/1. The claimant has worked with the management for less
than 240 days. He denied that management terminated the services of claimant
w.e.f. 30.04.2012. He clarified that claimant himself left the job. The claimant
used to mark his attendance through Bio metric means. Management used to pay
the salary of claimant through cheque/Bank transfer. The management paid due
salary for the amount of Rs.17,800/ to the claimant through Demand Draft before
Assistant Labour Commissioner.
Thereafter, the Management Evidence was closed and case was fixed
for final arguments.
Final arguments heard. File perused.
Issue wise discussion is as under:
For the sake of convenience, I shall proceed to decide Issue No.B,
framed on 11.11.2016.
:ISSUE No.B:
Whether the workman has not completed the
continuous service of 240 days with the
I.D.No. 4728/16 Page No. 8 out of pages 12
management in the year immediately preceding
the alleged date of alleged termination, if so, its
effect? OPM
Onus to prove this issue is placed upon the management.
It is seen from the record that admittedly in order to be entitled to the
protection of the provisions of Section 25 F of the I.D.Act 1947 (as amended
upto date) as on the date of the alleged termination of his services viz.
30.04.2012, the workman had to prove on record that he had worked for a period
of 240 days with the management in the year preceding the date of his alleged
termination viz. 30.04.2012, in the instant case, as above said, in view of the
provisions of Section 25 B of the I.D. Act 1947 (as amended upto date) onus of
which was upon the workman as held by the Hon'ble Supreme Court of India in
this regard vide its various pronouncements (MANU/SC/0115/2002 The Range
Forest Officer Vs. S.T. Hadimani; AIR 2006 SC 355 R.M. Yellati Appellant
Vs. The Assistant Executive EngineerRespondent and AIR 2006 SC 56 Batala
CoOperative Sugar Mills Ltd. Vs. Sowaran Singh refers), which I find from the record that the claimant has nowhere proved in his evidence, on record by way of any documentary material in this regard in the shape of copies of extracts of attendance register, payment of wages register, payment of subscription in respect of his ESIC/PF on the part of the management for the relevant period or any other evidence in this regard to show that he had worked for 240 days continuously during the year preceding the date of his alleged termination. Rather, the workman has placed reliance upon a document Ex.WW1/6 i.e. offer of employment, wherein the workman was offered the contract of employment in the management w.e.f. 24.12.2011. Even during the course of his cross examination, I.D.No. 4728/16 Page No. 9 out of pages 12 the workman has conceded that the offer letter of employment given by the management to him is dated 23.12.2011 and his date of employment has been mentioned therein as 24.12.2011. Even the workman has categorically stated in his cross examination that he worked with the management till 30.04.2012. Though, in his testimony, the workman has stated that he joined the management on 16.01.2011 but no documentary material has been placed on record to substantiate the said claim of workman and even he has not explained as to why he did not raise any objection / protest in writing against the mentioning of date of joining the management w.e.f. 24.12.2011, whereas, he joined the service of management on 16.01.2011 and in the absence of same, the said contention of workman remained only a bald assertion.
I further find that the workman has not taken recourse to the provisions of section 11 (3) (b) of the Industrial Disputes Act, 1947 (as amended upto date) for the purpose of calling for the production of records in support of his alleged case from the management which course of action was open to him during the adjudication of the instant proceedings and accordingly has failed to prove the onus of his having worked for a period of 240 days with the management in the year preceding the date of his alleged termination viz. 30.04.2012 in the instant case which was upon him in order to be entitled to the protection of the provisions of Section 25 F of the I.D. Act, 1947 (as amended upto date) as on the said date/for the purpose of holding his alleged termination to be illegal and/or unjustified.
In view of my above findings that the workman has not established that he had worked for a period of 240 days with the management in the year preceding the date of his alleged termination viz. 30.04.2012 in order to be I.D.No. 4728/16 Page No. 10 out of pages 12 entitled to the protection of the provisions of Section 25 F of the Industrial Disputes Act, 1947 (as amened upto date) qua his alleged termination, I accordingly, decide the issue in favour of the management and against the workman.
:ISSUE No.(i) to (viii) and ISSUE No.A:
(i) Whether the claimant is not a workman within the definition of workman as provided under Section 2(s) of the I.D. Act as according to the management he was working in the managerial capacity, if so, its effect? OPM
(ii) Whether despite the opportunity, the claimant failed to achieve the target of the company and whether the claimant was unable to reach the target as he was irregular as alleged by the management, if so, its effect? OPM
(iii) Whether the employment of the claimant was terminated by the management by way of a simple discharge on 30.04.2012 as claimed by the management, if so, its effect?
OPM
(iv) Whether the present reference is misconceived and not maintainable as alleged by the management? OPM
(v) Whether the claimant has received Rs.17,800/ from the management towards his outstanding dues for the period 01.03.2012 to 29.04.2012 before the Authority under Delhi Shops & Establishment Act, 1954, which the claimant filed before the said authority, if so, its effect? OPM
(vi) Whether the services of the workman were terminated by I.D.No. 4728/16 Page No. 11 out of pages 12 the management illegally and unjustifiably and if so, its effect? OPW
(vii) As per terms of reference.
(viii) Whether the claimant is entitled to the relief claimed in the statement of claim? OPW (A). Whether the management has closed down its operations in Delhi w.e.f. July 2014, if so, its effect? OPM.
In view of my findings on issue no.B, these issues are also liable to be decided against the workman. Issues stand decided accordingly. :Relief: In view of above discussion, I am of the considered opinion that the claimant is not entitled to any relief. The claim of the claimant is rejected. Award is passed accordingly and the reference is answered accordingly. Requisite number of copies of the award be sent to the competent authority for publication. File be consigned to the Record Room after completion of necessary formalities.
Announced in the open
Court on 30.08.2018 (RAKESH KUMARI)
Presiding Officer Labour CourtX
Dwarka Courts, Delhi.
Digitally signed
by RAKESH
RAKESH KUMAR
KUMAR Date:
2018.09.01
15:31:54 +0530
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