Delhi District Court
Secretary (Labour) Govt. Of The ... vs Unknown on 25 March, 2008
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IN THE COURT OF MS. NISHA SAXENA, POLC, FAST
TRACK-XXI, KARKARDOOMA COURTS, DELHI
ID No. 594/06/99
S/Shri Ram Sunesh, Santosh, Achiaber, Kamlesh Kumar
Sah, Tun Tun Lal Sharma, Lal Dev Yadav, Vijay Kumar
Shah, Raju Yadav and Arun,
C/o Delhi Dalit Mazdoor Vikas Sangthan,
2 Block, W.H.S.,
B-213, Nehra Camp,
Kirti Nagar, New Delhi-15. ........Workmen
Versus
M/s Asiatic Electronic Industries,
A-58, Naraina,
Phase-I,
New Delhi-28. .......Management
Appearances : AR for workman Shri Anjani Kumar.
AR for the management Shri R.K. Anand.
Date of Institution : 23.02.99
Date of reserving for award : 18.03.08
Date of award : 25.03.08
AWARD
01. Secretary (Labour) Govt. of the National Capital
Territory of Delhi vide his order No. F.24(59)/99-Lab./6475-79
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dated 12.02.99 has referred the industrial dispute between M/s
Asiatic Electronic Industries, A-58, Naraina, Phase-I, New
Delhi-28 and its workmen S/Shri Ram Sunesh, Santosh,
Achiaber, Kamlesh Kumar Sah, Tun Tun Lal Sharma, Lal
Dev Yadav, Vijay Kumar Sah, Raju Yadav and Arun, C/o
Delhi Dalit Mazdoor Vikas Sangthan, 2 Block, W.H.S., B-213,
Nehra Camp, Kirti Nagar, New Delhi-15 for adjudication as
per the following terms of reference:-
"Whether the services of S/Shri Ram
Sunesh, Santosh, Achiaber, Kamlesh
Kumar Sah, Tun Tun Lal Sharma, Lal Dev
Yadav, Vijay Kumar Shah, Raju Yadav and
Arun 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?"
02. Briefly stated, the facts of the case are that the
reference was made in respect of nine workmen viz. S/Shri Ram
Sunesh, Santosh, Achiaber, Kamlesh Kumar Sah, Tun Tun Lal
Sharma, Lal Dev Yadav, Vijay Kumar Shah, Raju Yadav and
Arun. However, only five workmen viz. Raju Yadav, Santosh,
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Arun Kumar, Tun Tun Lal Sharma and Ram Sunesh have
pursued their cases while the claimant Achaiber, Kamlesh Kumar
Shah, Lal Dev Yadav and Vijay Kumar Shah did not pursue their
case by bringing evidence. The name of the management as given
in the reference was incorrect, therefore, vide corrigendum dated
7.5.99, the name of management was corrected as M/s Asiatic
Electronic Industries.
03. The facts of the case are that the claimants had been
working with the management as per the following details.
Serial No. Name Post held Duration of Salary/wage Date of
service s termination
1 Ram Sunesh Fitter 5 years 1550/- 07/11/98
2 Santosh Fitter 6 years 1560/- 07/11/98
3 Achaiber Fitter 5 years 1550/- 07/11/98
Kamlesh Fitter 5 years 1550/-
4 Kumar 07/11/98
Tun Tun Lal Fitter 4 years 1500/-
5 Sharma 07/11/98
Laldev Fitter 5 years 1550/-
6 Yadav 07/11/98
Vijay Kumar Fitter 7 years 1580/-
7 Sah 07/11/98
8 Raju Yadav Fitter 5 years 1550/- 07/11/98
9 Arun Fitter 6 years 1560/- 07/11/98
The management was not providing them with
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statutory benefits. When they demanded the same, management
with a view to victimize them, terminated their services in
violation of the section 25-F of the Industrial Disputes Act on
7.11.98 and also withheld their wages from October, 98. They sent
a demand notice to the management on 18.11.98. They have
claimed that they have been unemployed since their illegal
termination and have sought reinstatement in service alongwith
full back wages and other consequential benefits. The stand of the
management is that there existed no relationship of employer and
employee between the parties. However, it may be possible that
the claimants might have been engaged for sometime through
contractors to do specific jobs.
04. To decide the present reference, following issues need to
be settled.
1.Whether the relationship of employer and employee exists between the parties?
2. As per terms of reference.
05. On the pleadings, parties were called upon to lead their respective evidence. In support of their cases, Raju Yadav, 5 Santosh and Arun Kumar examined themselves as WW1, WW2 and WW3 and proved their affidavits as Ex. WW1/A, WW2/A and WW3/A and relied upon the documents which are Ex. WW1/1 to Ex. WW1/8. WW4 is Tun Tun Lal Sharma, though he filed his affidavit but his testimony remained incomplete. His incomplete evidence shall not be read by the court. WW5 is Ram Sunesh who proved his affidavit as Ex. WW5/A and relied upon the documents Ex. WW1/1 to Ex. WW1/8. On behalf of the management Shri Manjeet, Manager Finance and Administration has been examined as MW1 who proved his affidavit as Ex. MW1/A and the documents relied upon by the management are Ex. MW1/1 to Ex. MW1/832.
06. I have heard AR for workman Shri Anjani Kumar and AR for the management Shri R.K. Anand and gone through the entire record including the sworn testimonies of the parties.
07. My findings on the issues are as hereunder.
Issue No. 1 :- Whether the relationship of employer and employee exists between the parties?
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The onus is on the claimants to prove that the relationship of employer and employee existed between the parties. Though in the written statement management has taken the stand that the claimants might have been employed by the management through contractor for doing specific jobs, however, in his cross-examination, MW1 Shri Manjeet Singh has categorically stated that they do not appoint any person through contractor. Both the stands of the management are contradictory. Their pleading is that the claimants might have been employed through contractor while in the cross-examination management witness says that the management does not appoint any person through contractor. He has also stated that the company is not registered under the labour laws for engaging contractors for supply of labour. No work is got done from the contractor in the factory premises. Therefore, the management witness has clearly ruled out the possibility of the claimants being employees of contractors.
08. WW4 has not completed his testimony. The same shall 7 not be read. WW1 is Raju Yadav, WW2 Shri Santosh, WW3 Arun Kumar and WW5 Ram Sunesh have stated in their testimonies that the management was not providing them with any legal facilities, though they had been working since long. They made oral demands from the management but when the management avoided the demands on several pretexts, the concerned workmen alongwith co-workers made a complaint to the labour office claiming minimum wages. Upon receipt of such complaint, one Labour Inspector Shri A.S. Kharb visited the factory premises of the management on 3.6.98. He found no official records such as wages register, attendance register etc. being maintained by the management. The management alongwith all official records was called to appear before the labour office on 8.6.98 but the management did not visit them, rather terminated the services of the concerned workmen without any valid reason on 7.11.98 without making payment of October, 1998. The abovesaid Labour Inspector Shri A.S. Kharb gave his findings on the said visit on 03.06.98 to the concerned workmen vide his letter dated 23.6.98. 8 The said Labour Inspector also sent a list of workmen working with the management at the time of general checking on 03.06.98. The report of the Labour Inspector dated 23.6.98 has been proved as Ex. WW1/1. There is no suggestion in the cross-examination of the witness that the report of the Labour Inspector is false and manipulated one. The management has not challenged the sanctity of the report, rather MW1 Manjeet Singh in his cross- examination has admitted that the documents Ex. MW1/W1 and Ex. MW1/W2 bear the signature of the Labour Inspector and he also signed both these documents in the presence of Labour Inspector; that Ex. MW1/W1 and MW1/W2 are in continuity and were prepared by labour inspector in their factory premises on 3.6.98. Ex. MW1/W1 is the list of workmen in which the name of claimant Raju Yadav is shown at serial no. 14 while in Ex. MW1/W2 name of Santosh Kumar is reflected at serial no. 16 and that of Ram Sunesh at serial no. 18 and name of Arun Kumar is reflected at serial no. 1 on the list Ex. MW1/W3 dated 03.06.98. He admitted that the management did not file any objection to the 9 labour department against Ex. MW1/W1 and MW1/W2. He also admitted that the person whose name appear at serial no. 14, 16 and 18 of Ex. MW1/W1 and MW1/W2 do not appear in the attendance record produced by the management. MW1 Manjit Singh also admitted his signatures and signatures of the Labour Inspector on Ex. MW1/W3 which is dated 3.6.98. He also admitted that the claimants at serial no. 3 and 8 are not shown in the attendance register. He also admitted that Ex. MW1/W4 is a list of 25 persons in 2 pages and both pages were signed by him as well as Labour Inspector on 3.6.98. It is further stated that management raised objection to the same, vide letter Ex. MW1/W5, however, Ex. MW1/W5 is in respect of complaint dated 5.11.98 which is just two days before the alleged date of termination. The witness admitted his signatures at Ex. MW1/W3 and stated the report was written when he affixed his signatures. He stated that he had not gone through the report while affixing his signatures on it. It is stated that Ex. MW1/W-3 is not totally false but the names of 6-7 employees shown in the report are 10 incorrect as they were never the employees of the management. The management never made any complaint against the Labour Inspector. However, the management replied to it when they received copy of Ex. MW1/W-3. Reply dated 10.11.98 has been proved as Ex. MW1/X. I have perused Ex. MW1/X. It simply says that the management does not recognize any union and their complaint until and unless majority of the workers and other employees are members of the said union. They sent a copy of declaration that all the staff and workers were getting their wages as per law and were not affiliated to any union. In this letter they have not stated that all the claimants were not its employees. Management has admitted that names of claimants are there in the list of workers prepared by the labour inspector. In view of the evidence on record, I hold that the relationship of employer and employee existed between the parties. Issue no. 1 is accordingly decided in favour of the workmen and against the management.
09. Issue No. 2 : - As per terms of reference.
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The onus is on the claimants to show that their services were terminated illegally and unjustifiably by the management. WW1 Raju Yadav, WW2 Santosh, WW3 Arun Kumar, WW5 Ram Sunesh had been working with the management since long. They demanded statutory benefits from the management. The management got annoyed due to the visit of the Labour Inspector and terminated their services on 07.11.98 without any reasons and also withheld their wages from October, 1998. Carbon copy of the complaint dated 10.11.98 has been proved as Ex. WW1/2, demand notice dated 23.11.98 is Ex. WW1/3, registry and UPC slip are Ex. WW1/4 and Ex. WW1/5. Bill regarding demonstration dated 5.12.98 is Ex. WW1/6, photocopy of the report given by the Labour Inspector dated 21.12.98 is Ex. WW1/7 and copy of the claim filed before Conciliation Officer is Ex. WW1/8. In his cross- examination, WW1 Raju Yadav has stated that he was issued a card by the management at the time of issuing of ISO certificate to the management in the year 1996. The card in original has been proved as Mark P. However, he has admitted that the card was 12 not issued to anybody including him. The witness has also stated that he was working under Mr. Munna Tiwari, Supervisor. There is no specific suggestion in the cross-examination of the witness that his services were not terminated by the management when he demanded statutory benefits. WW1 Raju Yadav had been working with the management for the last 5 years while Santosh was working with the management as Fitter for the last 6 years at the salary of Rs. 1650/-. WW3 Arun Kumar has stated that he had been working with the management for the last 6 years as a Fitter and his last drawn salary was Rs. 1560/- per month. WW5 has stated that he had worked with the management for the last 5 years as Fitter and his last drawn salary was Rs. 1560/- per month. The claimants have been successful in proving their employment with the management, it is beyond comprehension as to why on one fine day, they would leave the services of the management on their own. The management has failed to show that the claimants left their job after having settled their claims fully and finally with the management. The workmen have also 13 testified on oath that their services were terminated when they demanded statutory benefits from the management. It has been contended by AR for management that the claimants were not properly qualified for being appointed as Fitter and they had not done any course of Fitter from the government or private institution. However, that would not help the management as it has been proved by the claimants that the records filed by the management is incorrect. Though the management has filed documents of the relevant period which has been proved as Ex. MW1/1 to Ex. MW1/832 but the name of the claimants do not appear in the records. In view of the testimony on record, I am satisfied that the management terminated the services of the claimants Raju Yadav, Santosh, Arun Kumar and Ram Sunesh illegally and unjustifiably while the claimants Tun Tun Lal Sharma has not been able to prove his claim due to incomplete evidence. Now, the question arises as to what relief these claimants are entitled to. All the claimants have testified that they have been unemployed and jobless since the date of their 14 illegal termination of their services. However, in his cross- examination WW1 has stated that he never applied for any job anywhere after the alleged termination. Similarly, WW2 Santosh has also stated that he did not apply for the job anywhere. He stated that he is unemployed and his father and brother are meeting his monthly expenses. WW3 Arun Kumar has stated that he applied for the job but he do not have a documentary proof of the same. WW5 Ram Sunesh also stated that he has been unemployed; that he applied for the job but does not have any proof regarding the same. The services of the claimants were terminated illegally long back i.e. On 7.11.98 and a period of about 10 years has elapsed since then. It would not be proper to order for reinstatement and back wages. I am of the view that the ends of justice would be sub-served if they are awarded a compensation in lieu of back wages, reinstatement. In view of facts and circumstances of the case, I award compensation to Raju Yadav, Santosh, Arun Kumar and Ram Sunesh to the tune of Rs. 50,000/- each. The amount shall be payable to the claimants by the 15 management within a period of two months from the date of order and in case they fail to comply with the said order they shall be liable to pay interest @ 18% per annum on the defaulted amount.
10. Claimant Tun Tun Lal Sharma has not been able to prove his claim due to incomplete evidence. Therefore, his claim is dismissed while claimant Achaiber, Kamlesh Kumar Sah, Lal Dev Yadav and Vijay Kumar Shah have also not led any evidence to prove their claim. A no dispute award is passed in respect of these claimants. Claimants Raju Yadav, Santosh, Arun Kumar and Ram Sunesh are awarded a compensation to the tune of Rs. 50,000/- each.
11. Reference is answered accordingly. Six copies of the award be sent to the Secretary (Labour) for publication within 30 days. File be consigned to the record room.
ANNOUNCED IN THE OPEN COURT ON: 25.03.2008 (NISHA SAXENA) PRESIDING OFFICER, LABOUR COURT, KARKARDOOMA COURTS, SHAHDARA, DELHI 16 17