Delhi District Court
Sh Gopi Chand vs M/S Kirloskar Electric Company Ltd on 20 January, 2020
IN THE COURT OF SH. VINAY SINGHAL, ADDL.
DISTRICT & SESSIONS JUDGE, POLCV: RADC : DELHI
NEW ID NO : 131417
In the matter of :
Sh Gopi Chand
S/O Late Sh. Bhagwana
aged 56 years, Mobile No.9717097554
R/O 307/7, Railway Colony,
Shakur Bast, Delhi110034
through General Secretary
Sh. Mohan Nair, Mobile No.9818849980
New Delhi General Mazdoor Union
B - 89, Gulmohar Park,
New Delhi110049.
...Claimant
Versus
M/s Kirloskar Electric Company Ltd.
3rd Floor, Kundan House,
16, Nehru Place, New Delhi110019.
....Management
Date of Institution : 09.05.2017
Date of pronouncement : 20.01.2020
AWARD
The Dy. Labour Commissioner, Govt of NCT, Delhi while
exercising his power u/s 10 (1) (c) and 12 (5) of the Industrial Dispute
Act (hereinafter refer to as the Act) r/w notification No.F
24(363)/Lab/SD/2017/9285 dated 05.05.2017 has sent the following
reference to this court for adjudication :
ID No. 131417 1/8
"Whether the workman Sh Gopi Chand S/o Late Sh. Bhagwana,
aged 56 years, has been absenting from his duties on his own or his
services have been terminated illegally and/or unjustifiably by the
management; and if so, to what relief is he entitled and what directions
are necessary in this respect"?
PARTA
REFERENCE/CLAIM
1.After being called upon, the claimant filed statement of claim.
2. As per the claimant he was employed with the management since 16.06.1981 on the post of Office Boy at a last drawn monthly salary of Rs. 16038/.
3. It is claimed that initially he was appointed as a casual employee at the rate of Rs.20/ per day which was later on increased to Rs.1500/ p.m and his name was also recommended to be put in Grade II of the company pay roll on 29.03.1985 vide letter No. NDL/SECT/PDG/GR.
4. It is also claimed that from the date of his appointment till the date of alleged termination he was assigned various duties from time to time.
5. It is also claimed that the management stopped paying his monthly salary in the month of May, 2016 and also not paid salary for the month of June, 2016 and pressurized him to tender ID No. 131417 2/8 his resignation which was not accepted by the claimant and accordingly, when he reported for duty on 11.07.2016 he was prevented from resuming the duties which amounts to termination of his services.
6. A demand letter dated 12.07.2016 claiming reinstatement and the allowances was sent by registered post but the same was neither replied nor acted upon.
7. The claimant filed a written complaint with the concerned Conciliation Officer where the management took a defence that he was appointed as a Consultant for a period of six months from 01.09.2015 to 29.02.2016 on a retainership fee of Rs.16,200/ p.m which as per claimant was a wrong stand taken by the management and accordingly, the matter could not be settled and the present reference was made.
8. The claimant also claimed that since the date of his termination, he is unemployed.
PARTB MANAGEMENT'S STAND/REPLY
9. It is claimed that the claimant's services were employed on piecemeal or on daily wages basis as per requirement of the management.
10. It is also claimed that vide letter dated 25.09.2015 his services were engaged as a Consultant on retainership basis for a period ID No. 131417 3/8 of six months from 01.09.2015 to 29.02.2016 and the said retainership period was never extended and accordingly, he is not covered by the definition of "workman" after expiry of the said retainership period.
PARTC ISSUES
11. From the pleading of the parties the following issues were framed vide order dated 23.08.2018 :
a) Whether there exist any relationship of Employer and Employee between the management and the workman? OPW
b) Whether the workman does not fall within the purview of definition of "workman" as defined under the provisions of Section 2(s) of the Act ? OPM
c) Whether the services of workman were terminated illegally and/or unjustifiably by the management and if so, to what relief is he entitled? OPW
d) Relief.
PARTD CLAIMANT'S EVIDENCE
12. In support of his claim claimant examined himself as WW1 and deposed along the lines of statement of claim and also proved on ID No. 131417 4/8 record various documents and relevant ones are Ex.WW1/1, Ex.WW1/2, Ex.WW1/3, Ex.WW1/4, Ex.WW1/5, Ex.WW1/6, Ex.WW1/7, Ex.WW1/10, which are in the form of documents issued by management or on behalf of management authorizing the claimant to act on its behalf as its representative for the period ranging from 1987 to 2006.
13. The management has not come forward to cross examine the claimant deposing as WW1 in order to controvert the stand taken by him or to prove its own defence.
PARTE MANAGEMENT EVIDENCE
14. The management has also not come forward to lead its own evidence to prove the defence taken by it via its WS and accordingly, the said opportunity was closed vide order dated 25.11.2019.
PARTF FINDINGS/CONCLUSION
15. The management has also not come forward to advance final arguments.
16. After considering the claim, reply, documents and the evidence led on record, the issue wise decision of the court is as under : ID No. 131417 5/8 ISSUE No.1 : Whether there exist any relationship of Employer and Employee between the management and the workman? OPW AND ISSUE No.2 : Whether the workman does not fall within the purview of definition of "workman" as defined under the provisions of Section 2(s) of the Act ? OPM
17. As already discussed in Part D above, the claimant has proved on record the documents ranging from 1987 to 2006 which are in the form of authorization issued in his favour by the management to act on its behalf, which documents very well support the contention of the claimant that he was an employee of the management since 1981 and not engaged in the year 2015 as a Consultant for six months on retainership basis.
18. Again, as already discussed in Part D above, the management has also not come forward to cross examine the claimant deposing as WW1 thereby challenging his testimony regarding the period of service as well as the authenticity of the documents relied upon by him in this respect and as also discussed in Part E above, had also not led any evidence to prove the defence taken by it in the WS.
19. In these circumstances, the court has come to the conclusion that the claimant has been able to prove relationship of employer and employee between the parties if not from 1981 then atleast from ID No. 131417 6/8 1987, which period very well covers provisions of Section 25B of the Industrial Disputes Act also as by virtue of the above evidence led by the claimant, it has been proved beyond doubt that as on the date of his alleged termination, he has already completed 240 days of continuous service in the 12 preceding calender months.
20. Accordingly, issue no.1 and 2 are decided in favour of the claimant.
ISSUE No.3 : Whether the services of workman were terminated illegally and/or unjustifiably by the management and if so, to what relief is he entitled? OPW
21. Again, as discussed in Part D and E above, the management has failed to come forward to either cross examine the claimant w.r.t. his deposition or to lead its own evidence to support its own defence to challenge the claim of the claimant that his services have been terminated illegally and unjustifiably by the management and in these circumstances, testimony of the claimant stand accepted.
22. Issue no.3 is accordingly, decided in favour of the claimant.
ID No. 131417 7/8ISSUE No.4 : RELIEF
23. The management has also failed to bring on record any evidence to dispute the claim of the claimant that since the date of his termination till date, he is unemployed.
24. In view of the outcome of issue no. 1 to 3, the claimant is held entitled to the relief of reinstatement with full backwages along with continuity of services and all other consequential benefits.
25. Reference answered accordingly.
26. Let copy of the award be sent to the appropriate Govt for its publication as per rules.
File be consigned to record room.
Announced in the Open Court ( VINAY SINGHAL) On 20 Jan., 2020 th ADDL. DISTRICT & SESSIONS JUDGE, PRESIDING OFFICER LABOUR COURTV, RADC/DELHI VINAY SINGHAL Digitally signed by VINAY SINGHAL Date: 2020.01.29 13:19:30 +0530 ID No. 131417 8/8