Delhi District Court
Workman vs . on 20 December, 2011
IN THE COURT OF SH. MAHAVIR SINGHAL: POIT,
KARKARDOOMA COURTS, DELHI
Comp No. 94/05
Workman
Sh. Shatrughan Kamat s/o Shri Ramesh Kamat r/o B 807, Gautam Puri,
Phase II, Badarpur, New Delhi. Formerly working as Technician at
Indraprastha Gas Ltd. CNT Station , DTC Depot, Kalkaji,N. Delhi.
represented by Vyapar Tatha Udyog Karamchari Sangh (Regd. )
Vs.
Management
1. M/s Indraprastha Gas Limited through its Managing Director Sh. Anil
Kumar De.
2. Sh. Kapil Uniyal, Marketing Manager
3. Sh. BK Bhandari (Supervisor)
Indraprastha Gas Ltd., Dr.Gopal Das Building, 14,15 floor, 29,
Barakhamba Road, New Delhi, also at Udhyan Marg, CNG Station,
Udyan Marg, DIZ Area, Bole Market, N. Delhi,
Date of institution 22.07.2005
Date of reserving award 07.12.2011.
Date of award 20.12.2011
AWARD
1. Workman has filed the present complaint u/s 33-A r/w Section
10(4A) of Industrial Disputes Act for suspending workmen/complainant
without issuing show cause notice and without charge sheet, during
pendencyof Industrial Dispute No.99/2003 before this Hon'ble Court.
2. It is stated in the present complaint that I.D. No.99/03 is pending
before this Tribunal for regularisation of workman with management no.1.
Comp No.94/05 Page 1 of 10
It is stated that complainant was employed with management no.1 as
Technician since 1.1 1997 on regular basis at a salary of Rs.5150 pm and
that complainant alongwith other workmen has preferred an industrial
dispute no.99/03 for regularization of his service with management no.1. It
is further submitted that another industrial dispute No66/03 regarding
general demand on behalf of complainant alongwith other workmen is also
pending before Labour Court. It is submitted that workman is working to
the satisfaction of management.
3. It is submitted that respondent no.2 and 3 did not pay salary the
salary of workman and he enquired about the same, he was not given satisfactory answer. Lateron, workman came to know that the cheque towards his salry has been encashed by respondent no.1 and 2 through some unknown person and thus misappropriated the same illegally, against which a police complaint was lodged and a complaint was also filed before Metropolitan Magistrate. It is submited that annoyhed with the said complaint, salary of workman for some subsequent months was also withheld. Thereafter, workman was dismissed from service illegally, without any show cause notice, which is contrary to Section 33 of the I.D. Act. It is, therefore, prayed that action of respondents of dismissing the complainant from service be held illegal and that management be directed Comp No.94/05 Page 2 of 10 to reinstate the workman with full back wages at original salary with consequential benefits.
4. In reply filed by the respondent/managements no.1 and 2 to the present complaint, it is claimant was never engaged by management no.1, but was engaged by contractor namely M/s Bhandari Enterprises. It is submitted that respondent no.1 and 2 are executives of respondent no.1 and as such claim against respondents no.1 and 2 is baseless. It is submitted that complainant has made respondent no.3 as a party, who is a contractor, under whose supervision and control complainant is still working. It is submitted that Sh. V.K. Bhandari is sole proprietor of M/s Bhandari Enterprises for providing service. It is submitted that in the present case there is no contravention of Section 33 of the I.D. Act. It is submitted that there is contract agreement between M/s Indraprastha Gas Ltd and M/s Bhandari Enterprises. It is submitted that M/s Indraprastha Gas Limited is the principal employer having Registration Certificate under CLRA Act and the contractor namely Bhandari Enterprises has the license. All other allegations made in the present complaint have been denied by the respondents/ managements.
5. In reply filed by respondent / management no.3, it is submitted that since, the complainant is no where a party to the dispute ID No.99/03, Comp No.94/05 Page 3 of 10 therefore, the present complaint is not maintainable. It is submitted that the complainant was engaged by respondent no.3 as Technician due to temporary pressure of work and that he was working under direct supervision and control of respondent no.3. Itis submitted that w.e.f. 2.5.05, the complainant abandoned the job of his own without prior permission or information, therefore, the management no.3 has never violated the provisions of I.D. Act. It is submitted that there is a contract between management no.1 and management no.3 and that management no.1 is the principal employer having Registration certificate under the CLRA Act. All the allegation made against management no.5 have been denied.
6. Complainant has filed two rejoinders, one to the reply of respondent no.1 and 2 and another to the reply of respondent no.3, wherein he has reiterated the contentions made in the complaint and have denied all the averments made in the replies of respondents.
7. On the basis of pleadings of the parties, following issue was framed by my Ld Predecessor vide order dated 17.04.2006:-
1. Whether the complainant is a concerned workman in I.D. No.99/2003? OPC Comp No.94/05 Page 4 of 10
2. Whether the complainant is an employee of the respondent no.1? OPC
3. Whether the complainant was suspended by respondent no.1? OPC
3. Relief.
8. Workman examined himself as CW1. In his examination-in-
chief, he has reiterated the contents of his complaint. In his cross- examination, he has admitted that he was not issued any appointment letter. It is admitted that Sh. V.K. Bhandari respondent no.3 was his supervisor and he was working under his control. It is denied that he has no employer and employee relationship with respondent no.1.
9. Management has examined Sh. Ashim Batra, chief General Manager of management no.1 as MW 1. In his examination-in-chief, he has reiterated the contentions made in the reply. In his cross- examination, he has denied that complainant was employed by management no.1. It is denied that services of complainant were terminated during the pendency I.D. No.99/03.
10. MW 2 Sh. Mohan Singh, LDC from ESIC Kalkaji, N. Delhi has proved on record declaration forms and returns filed by M/s Bhandari Enterprises regarding contribution of ESI of complainant as Ex. MW2/1. Comp No.94/05 Page 5 of 10 He has deposed that ESIC does not itself verify the fact of employment of employee with the employer mentioned in the returns.
11. MW 3 Sh. Neeraj Sinha, Social Security Assistant, EPFO, Nehru Place, New Delhi, has proved on record annual statement of contribution of M/s Bhandri Enterprises for different periods as Ex. MW3/1. In his cross-examination, he has deposed that his department does not verify the fact of employment of employee with the employer mentioned in the annual statement of contribution
12. No arguments were advanced earlier by either of the parties. However, on an application moved by the management of M/s Indraprastha Gas Limited, arguments on its behalf were heard on 19.12.2011. I have carefully gone through record of the case. My findings on the issues are as under :-
13. Findings on issue No 1 Issue no.1 is Whether the complainant is a concerned workman in I.D. No.99/03? OPC
14. I have perused the list of workmen annexed with statement of claim filed in I.D. No.99/03. In the said list, name of the complainant/workman appears at Serial No.116. Thus, plea of the Comp No.94/05 Page 6 of 10 management that complainant is not a concerned workman in I.D. No.99/03 is unfounded. This issue is, therefore, decided in favour of workman and against the management.
15. Findings on issue no.2 Issue no.2 is Whether the complainant is an employee of the respondent no.1? OPC
16. MW 1 Sh. Ashim Batra, Chief General Manager of management no.1 has has proved on record Ex. MW1/1, which is agreement executed between management no.1 and M/s Bhandari Enterprises. As per this agreement, Operator i.e. M/s Bhandari Enterprises shall provide services to management no.1, which is in the business of dispensing CNG to automobiles and supplying Piped Natural Gas to domestic and commercial customers. A per term no.6(g) of the agreement, the Operator can appoint his personnel including Technician on a fixed term co-terminus with the agreement period.
17. From the above agreement, it is clear that the personnel for providing service to management no.1 shall be provided by Operator/ Contractor M/s Bhandari Enterprises.
18. MW 1 has also proved on record copy of Licence Ex.MW1/2 issued by Regonal Labour Commissioner to M/s Bhandari Enterprises for Comp No.94/05 Page 7 of 10 doing work of CNG Pump Operations (job of Supervisors, DSM, Security Guards, Technicians etc) in the establishment of management no.1.
19. From the above discussion and documents Ex. MW 1/1 and Ex.
MW1/2, it is clear that there was agreement between management no.1 and Bhandari Enterprises that personnel shall be provided by M/s Bhandari Enterprises for the services to be rendered at CNG station of management no.1. Thus, it is revealed that power to appoint workers including Technician, the designation of workman herein, was with M/s Bhandari Enterprises, the contractor. Hence, it is held that complainant/workman was in the employment of respondent no.3, Mr. B.K. Bhandari, the contractor and proprietor of M/s Bhandari Enterprises and not in the employment of management no.1 M/s Indraprastha Gas Ltd.
20. Findings on issue no.3 Issue no.3 is Whether the complainant was suspended by respondent no.1? OPC
21. As held vide issue no.2, complainant/workman was in the employment of respondent no.3, Mr. B.K. Bhandari, the contractor and proprietor of M/s Bhandari Enterprises and not in the employment of respondent no.1 M/s Indraprastha Gas Ltd. Since, complainant was not Comp No.94/05 Page 8 of 10 employed by management no.1, question of his suspension by management no.1 does not arise. This issue is accordingly, decided in favour of management and against the workman.
22. Relief Section 33A of I.D. Act speaks about change of service condition during the pendency of an industrial dispute. As per case of complainant/ workman, ID. No.99/03 is pending disposal, during which his service conditions were changed. However, it is worth noting that in I.D. No.99/03, said M/s Bhandari Enterprises, of which complainant is employee, has not been made party. Therefore, it is clear that no industrial dispute is pending against M/s Bhandari Enterprises. Since, no industrial dispute is pending against M/s Bhandari Enterprises, the employer of complainant, the question of contravention of provisions of Section 33A of ID Act does not arise. Accordingly, it is held that present complaint is not maintainable u/s 33A of I.D. Act and workman is not entitled to any relief. Award is passed accordingly.
23. Copy of award be sent to GNCT of Delhi for publication. File be consigned to record room.
Announced in open court
on 20.12.2011 (MAHAVIR SINGHAL)
Presiding Officer, Industrial Tribunal
Comp No.94/05 Page 9 of 10
Karkardooma Courts, Delhi.
Comp No.94/05 Page 10 of 10