Delhi District Court
Between The vs The on 2 May, 2013
IN THE COURT OF SH. S.S. MALHOTRA, PRESIDING OFFICER,
LABOUR COURT NO. IX, KARKARDOOMA COURTS, DELHI
ID NO. 94/11
Unique Case ID No. 02402C0056602011
BETWEEN THE WORKMAN
Sh. Vijay Kumar Sharma, S/o Late Sh. Satember Sharma, R/o WZ83/9, Garib
Basti, Rama Road, New Delhi15 as represented by C/o Sh. Triloki Pandit,
Advocate, Bar Room No.II, Western Wing, Tis Hazari Courts, Delhi110054.
AND THE MANAGEMENT OF
M/s Intraco Impex Pvt. Ltd., Regd. Office: Room No.309, H1, Garg Tower, Netaji
Subhash Place, Pitampura, Delhi110034, Through its Director Sh. Ramesh
Chander Goel.
Date of Institution : 17.02.2011
Date on which award reserved : 23.04.2013
Date on which award passed : 2.05.2013
A W A R D
1 Vide this award, I shall dispose off the statement of claim as filed by the
workman directly in this court under section 2A of the Industrial Dispute Act, 1947
(for short 'I.D. Act') against the management on the ground that his services have
been terminated illegally and unjustifiably by the management on 19.11.2010 and
he has prayed that the management be directed to reinstate him at the same post
with continuity of service and full back wages and other consequential benefits upto
date.
2 Brief facts as stated by the workman in his statement of claim are that the
management is running the business of manufacturing and trading of Auto parts
under the name and style of M/s Intraco Impex Pvt. Ltd., having its Registered
Office at Room No. 309, H1, Garg Tower, Netaji Subhash Place, Pitam Pura and
ID NO. 94/11 1/29
factory at plot No. 104, Phase IV, Industrial area, HSIDC, Kundli, Distt. Sonepat,
Haryana. The workman was employed by the management at its registered office at
Delhi on 1.4.08 at the post of Auto Parts Engineer and his last drawn salary was Rs.
15,250/. During the course of his employment, he was used to be sent to plot no.
104, Phase IV, Industrial Area, HSIDC, Distt. Sonepat. The workman has
unblemished and uninterrupted record of service but the management was not
providing legal facilities to the workman such as PF, bonus, overtime and wages
etc. When the workman demanded the same persistently, the management got
annoyed and obtained the signatures of the workman forcibly on certain blank
papers/vouchers and terminated him from the service vide termination letter dt.
19.11.2010 without making the payment of earned wages for the month of
November, 2010; without conducting any enquiry against him and without issuing
any chargesheet against him. It is stated that the workman has been terminated by
the management illegally that too by withholding the wages for the month of
November, 2010, without serving any show cause notice, without paying any notice
pay and without paying any retrenchment compensation etc. He has even filed a
complaint against the management to SHO, PS, Kundli, Sonepat, Haryana in this
regard but of no avail. It is further stated that after knowing about the aforesaid
complaint of the workman, the management sent some musclemen at the residence
of the workman on 27.11.2010 who asked the workman to withdraw the said
complaint and when the workman refused to withdraw the said complaint, the
management threatened the workman to face dire consequences. The workman
reported this incident to the PS, Moti Nagar, Delhi. Thereafter the workman served
legal demand notice dt. 27.12.2010 which was neither replied nor complied with by
ID NO. 94/11 2/29
the management despite having received the same by the management. It is further
stated that the workman is unemployed since the date of his termination and it is
further stated that this Court has got territorial jurisdiction to entertain the present
matter as the registered office of the management is situated in Delhi and it is
accordingly prayed that the management be directed to reinstate him at the same
post with continuity of service and full back wages and other consequential benefits
upto date.
3 The management was served and it has filed its written statement thereby
taking various preliminary objections interalia that this Court has no territorial
jurisdiction to try and entertain the present controversy between the parties even as
per his own averments that he was working at Kundli, District Sonepat. It is further
stated that the workman has not approached the Court with clean hands and has
based his claim on the basis of forged and fabricated documents prepared in
collusion and conspiracy with Sh.Arjun Prasad. It is further stated that the last
drawn salary of the workman was not Rs. 15250/ but it was only Rs. 6000/ per
month and the workman is guilty of misconduct as he was not diligent in
performing his duties and he usually remained absent and the management was not
happy with his performance and he was even warned number of times and was
given show cause notice in order to improve his performance but the workman did
not turn up rather unauthorizedly and illegally remained absent from the duty
without any leave or sanction from the management. It is further stated that the
company was suffering adversely to its production as well as income due to such
absence and general conduct of the applicant. It is further stated that since the
claimant himself has claimed that his salary was Rs. 15,250/ then he otherwise
ID NO. 94/11 3/29
would not fall within the category of workman as defined U/s 2 (s) of ID Act and
therefore, the claim of the workman otherwise also is not maintainable. It is further
stated that the amount of Rs. 15,250/ was given to the workman after
deducting/adjusting his wages qua his absent for the month of July, August,
September and October, 2010, as his salary was Rs. 6000/ per month only.
3.1 As far as merits are concerned, it is denied that the workman was working
with the management at its registered office at Delhi and it was reiterated that he
was working at Sonepat for all practical purpose. It is also denied that the workman
was working as Auto Parts Engineer and was getting last drawn salary of Rs.
15,250/ and the relevant contents of the preliminary objections are reiterated. It is
further reiterated that the workman was not coming regularly to the management
for duty and was absenting from his duties without leave and explanation and the
management was suffering losses due to such absence of the workman from the
duty. It is further stated that the workman is guilty of misconduct as well as forgery
and cheating which is committed by him in collusion with Sh. Arjun Prasad who
had taken away the blank letter heads and the seals of the management and the same
have been misused for the alleged salary certificate of the workman. It is further
stated that Sh. Arjun Prasad was never authorized by the management to issue such
certificate to its employees and even otherwise such certificates are contrary to the
factual position and are not binding upon the company. It is further stated that as
per books of account maintained by the management, the workman was working as
Supervisor and his monthly salary was Rs. 6000/. The workman has not placed on
record any document in respect of his education or technical qualification in support
of his alleged claim of 'quality control engineer' or that of 'auto parts engineer'. It is
ID NO. 94/11 4/29
denied that the workman was thrown out of job or his juniors have been retained or
new persons on the same post have been appointed by the management as alleged.
It is denied that the workman has made any complaint against the management on
23.11.10 to SHO, PS Kundli, Sonepat, Harayana or that after coming to know about
the said complain, the management alongwith some musclemen visited the house
of workman on 27.11.10 in Delhi or asked the workman to withdraw the complaint
or threatened the workman for the dire consequences as alleged or that the
workman lodged the complaint on 28.11.2010 in this regard. It is further submitted
that said complaints, if any, are false and fabricated. It is denied that the workman is
unemployed from the date of his termination or is entitled to reinstatement as
prayed for. It is stated that the workman is illegally absenting form his duties and is
guilty of misconduct. It is further denied that the Court has no jurisdiction to try,
entertain or decide the present claim and as such it is prayed that the present claim
of the workman is liable to be dismissed and may kindly be dismissed.
4 Workman thereafter has filed the rejoinder and has specifically denied that
this Court has no territorial jurisdiction to try the matter or that no cause of action
or part of the cause of action has ever arisen within the jurisdiction of this Court or
that the workman was not working as an Engineer. It it is further stated that since
the registered office of the management was situated at Delhi, therefore, this court
has jurisdiction to entertain the present claim in Delhi. It is also denied that the
workman remained absent from his duties or is guilty of misconduct. Other
contents of the written statement are also denied by the workman and he has
reiterated and reaffirmed the contents of the claim and has prayed that an award
may kindly be passed in favour of the workman and against the management in
ID NO. 94/11 5/29
terms of the prayer made by him in the statement of claim.
5 After completion of the pleadings, following issues were framed on
14.9.2011 by my Ld. Predecessor Court :
1 Whether the claimant had been working with the management regularly
since 1.4.08 at the post of 'Auto Parts Engineer' drawing wages @ Rs.15,250/
per month?
2 Whether the claimant is a workman as per provisions of Section 2(s) of
Industrial Disputes Act, 1947?
3 Whether the workman completed 240 days of continuous service with the
management during the preceding twelve months from the alleged date of his
termination?
4 Whether the services of the workman have been terminated illegally and/or
unjustifiably by the management?
5 Relief.
6 After the framing up of issues, both the parties were given opportunity to
lead their evidence to prove their respective contentions/pleas. The workman has
accordingly examined himself as WW1 and he was cross examined by the
management at length and then the workman has closed his evidence. Thereafter,
the matter was fixed for management's evidence and the management has examined
Sh. Sunil Sharma as MW1, Sh. Jai Bhagat as MW2, Sh. R.C. Goel as MW3 and
Sh. Hakim Rai Chand as MW4 and closed its evidence. After conclusion of
evidence of both the parties, matter was fixed for arguments. Thereafter, the
management filed an application for framing of additional issues which application
after hearing both the parties was allowed and two additional issues as follows were
ID NO. 94/11 6/29
framed on 4.8.12:
1.Whether this Hon'ble Tribunal has got the territorial jurisdiction to try, entertain and decide the present dispute? OPW
2. Whether the workman is guilty of misconduct by absenting illegally from the official duties of the management, if so, its effect? OPM 7 After the framing up of the additional issues, both the parties were given opportunity to inform the court if any of the party intended to lead further evidence on the issues framed additionally on 4.08.12 but none of the parties intended to lead additional evidence and it was stated that all the relevant evidence concerning both the issues has already been recorded and may be read accordingly and as such the matter was fixed for final arguments once again.
8 I have heard the arguments and perused the record. My issuewise findings are as follows: ISSUE NO. 1 9 The onus to prove this issue was upon the workman and he had to prove that he had been working with the management regularly since 1.4.08 at the post of Auto Parts Engineer and his last drawn salary was Rs. 15,250/ as mentioned in his claim. There is no specific denial as far as the date of appointment is concerned and as far as the salary is concerned, the same is denied by the management. The workman claims the salary @ Rs. 15,250/ and the management claims that his salary was Rs. 6000/ per month. The workman deposed in terms of his affidavit and statement of claim and during his evidence he has exhibited documents Ex. WW1/3 i.e. letter given to the workman by the management through its authorized signatory in which salary of the workman was written as Rs. 15,000/ and another ID NO. 94/11 7/29 letter written by the same person which is Ex. WW1/4 and has relied upon the fact that authorized signatory of management Sh. Arjun Prasad has issued these letters to the workman on behalf of the management. In the cross examination, he deposed that his salary was Rs.13,500/ at the time of his joining and he has not placed any appointment letter on record. He admitted that Sh. Arjun Prasad is not working with the management at present. He did not know whether he has also not joined the management w.e.f. December, 2010. He denied the suggestion that Sh. Arjun Prasad is hand in glove with him. He further deposed that Sh. Arjun Prasad was designated as Manager by the management and he issued salary certificate to him in that capacity. He admitted as correct that there is no document on record to show that Sh. Arjun Prasad was authorized to issue salary certificate to him on behalf of the management.
10 As far as the evidence on part of the management is concerned, the management has relied upon the Ex. WW1/MX1 i.e. copy of the salary register and the signatures on the same has been denied by the workman. He further denied the suggestion that cheque issued for the sum of Rs. 15,250/ was not towards the salary for the months of July 2010 to October 2010 or that it was not the salary for one month. He also denied the suggestion that the management used to give salary by cheque to all the employees if salary was more than Rs. 10,000/ and the salary was given in cash if the salary is less than Rs. 10,000/ He denied the suggestion that his salary was Rs. 4500/ in the beginning and his last drawn salary was Rs. 6000/ 11 In his own evidence i.e. the evidence of MW3, Director of the management deposed that the workman's last drawn salary was Rs. 6000/ and not Rs 15,250/ ID NO. 94/11 8/29 and the alleged claim of Rs. 15,250/ is fictitious and false and the management had given Rs. 15,250/ to the workman towards his salary for the month of July, August, September and October, 2010 as the workman had remained absent for substantial period in these four months. In this cross examination he denied the suggestion that workman was working as Auto parts Engineer or he was drawing the salary of Rs. 15,250/. He further deposed that the document of the management were stolen by one Arjun Kumar against which police complaint has already been lodged. He further deposed that Ex. WW1/3 and Ex. WW1/4 are forged and fabricated documents.
12 This is the entire evidence touching this issue. The main contention of Ld.ARW is that the last drawn salary of the workman was Rs.15250/ and the salary certificate Ex.WW1/3 and this amount was given to the workman by way of cheque. On the other hand, the main contention of the management is that Ex. WW1/3 have been issued by one Arjun Prasad who has earlier been working with the management but subsequently he had stolen some documents/letter heads on which he had intentionally issued such salary certificate to the workman so as to cause loss to the management and the next contention of the management is that the amount of Rs. 15,250/ was salary for the months of July to October, 2010 as deposed by MW3, Director of the management.
13 Coming to the first part, although the workman has specifically deposed that he has no document to show that Sh. Arjun Prasad was competent person to issue salary certificate to him, yet the Court is of the opinion that no employee, even a supervisor, would be having a right to ask the management as to whether a particular manager or person appointed by the management has powers to issue ID NO. 94/11 9/29 salary certificate to any of the workman. It is neither the right of the workman to ask the management nor it is the duty of the management to publish the same on notice board so as to define the specific powers assigned to particular employee/manager or supervisor. The salary certificate Ex. WW1/3 has been issued on the letter head of the management and the management claims that management has already filed police complaint against Sh. Arjun Prasad. Meaning thereby the documents were kept by the management under the disposal of Sh Arjun Prasad and he may or may not have done some wrong act against the management. It is for the management to prove that Arjun Prasad had no authority to issue certificate depending upon the terms and conditions of the employee, his designation and his status in the management. The management apart from giving suggestion that FIR has been filed against Sh. Arjun Prasad proved no other document. Therefore, this contention is not well found.
14 Coming to the another contention of the management that his amount of Rs. 15,250/ was given to the workman towards the salary for the months, July, August, September and October, 2010. The management itself has filed salary register of the workman which is Ex. WW1/MX1 and the workman otherwise has denied his signatures on the same. As per Ex. WW1/MX1, the salary payable to the workman for the month of July,10 was Rs. 5890/ (as he worked for 31 day); the salary payable to the workman for the month of August was Rs. 4749/ (as he worked for 25 days); the salary payable to the workman for the month of September was Rs. 2746/ (as he worked for 14 days) and the salary payable to the workman for the month of October was Rs. 1865/ (as he worked for 9.5 days). Therefore, as per this salary register, the total payable salary of the workman for the month of July, ID NO. 94/11 10/29 August, September and October comes to Rs. 15,250/ which is corroborating with the affidavit.
15 Now coming to the signatures of the workman. He has denied his signatures on the salary register. However, in his cross examination the workman has admitted that he used to receive salary in cash and he volunteered that he received last salary by cheque when he raised an objection that instead of cash, his salary be paid by cheque. He also admitted as correct that whenever he used to receive his salary he used to put his signatures on the register for the amount received by him towards his monthly salary. As per the salary register filed by the management, his salary is written as Rs.6000/. It is not the suggestion even of the workman that the salary register produced by the management is false and subsequently prepared. Further, as per the document filed by the management with respect to depositing the necessary contribution with the ESIC, his contribution has been calculated on the basis that he was receiving the salary @ Rs.6000. Even when we calculate the salary given to the workman for four months i.e. July 2010 to October 2010 i.e. wages, it is calculated on the basis of number of actual working days put by the workman with the management and the workman has otherwise admitted that he has received this amount of Rs.15250/ by way of cheque. The workman otherwise has admitted that he was receiving the salary by signing the salary register and that too by cheque and he has never raised any objection in this regard during the service tenure. The court is of the opinion that although the management has not been able to prove that the Ex.MW1/3 has been issued by Sh. Arjun Prasad on the stolen letter head by him to the workman but the workman otherwise has failed to prove that he was getting salary @ Rs.15250/ per month.
ID NO. 94/11 11/29 16 Keeping in view the preponderance of probabilities, the contention of the management appears to be well found which is corroborating with the record kept in due course by the management and therefore, it is held that the last drawn salary of the workman was Rs. 6000/ and not Rs. 15,250/. The issue no.1 stands decided accordingly.
ISSUE NO.2 17 The onus to prove this issue was upon the workman and he had to prove that he has worked within the definition of Section 2 (s) of the ID Act. The workman claims that he was appointed as Auto Parts Engineer by the management and he was simple worker with the management, whereas the management claims that he was appointed as Supervisor with the management.
18 In evidence, he has deposed that he is 12th passed. He was earlier working with M/s Sun Auto Cable and also with M/s Martial Auto Lamp, Nazafgarh road and the working activities of all the previous two employers was same as of the present management and the suggestion that he was appointed as Supervisor was denied by the workman. The management examined MW1 Sh. Sunil Sharma, MW2 Jai Bakhs one of the employee of the management who has deposed that the workman was appointed as Supervisor by the management. When MW2 was cross examined, he deposed that he himself does not have any proof that he has been authorized by the management to depose in this case and he is not a summoned witness and also admitted that he has come at the direction of the management. 19 MW3, Director of the management has deposed that workman was appointed as Supervisor and he has relied upon his ESI return where the designation of the workman was shown as Supervisor and the salary was accordingly being given to ID NO. 94/11 12/29 him. In cross examination he denied that document as being relied upon by the workman are forged, fabricated and manipulated subsequently. The management has not filed any appointment letter of the workman on record. He admitted as correct that workman had no authority either to appoint or remove any labour, got his attendance marked, sanction leaves to any of the workman or preparing of salary or overtime of the workman. He denied the suggestion that management has not delegated any managerial or administrative power to the workman. He further volunteered that it was delegated with respect to control of labour. He further deposed that he has not filed any such document or letter on court record and he volunteered that such documents have been stolen. He further denied that workman was working with the management as auto parts engineer and further volunteered that he was working as supervisor only. The management has not filed any document to show that the workman was working as a supervisor except ESI return Ex. WW1/MX1 (Colly.) where it is so mentioned that the designation of the workman was of a supervisor.
20 In the judgment titled as Anand Bajar Patrika (Pvt) Ltd. Vs. The Workmen, 1970 (3) SCC 248, it was inter alia held that "the question, whether a person is employed in a supervisory capacity or on clerical work depends upon whether the main and principal duties carried out by him are those of a supervisory character, or of a nature carried out by a clerk."
21 In the judgment titled S.K. Maini Vs. Carona Sahu Co.Ltd. & Ors., 1994:
Supreme Court Cases (L&S): Page 776, it was inter alia held that "Industrial Dispute Act.1947 - Section 2 (s) "Workman is an employee who is doing more than one duties and functions, whether or not, a workman and the test is the nature ID NO. 94/11 13/29 of duties and not the designation."
22 Further, in the judgment titled as Yogender Kumar Vs. B.R. Kohli & Co., 106 (2003) DLT 232, it was interalia held by the Hon'ble High Court of Delhi that "Whether or not an employee is a workman under section 2(s) of the I.D. Act is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and material on record and it is not possible to lay down any straitjacket formula which can decide the dispute as to the real nature of duties and functions performed by an employee in all cases. When an employee is required to do more than on kind of work it becomes necessary to determine under which classification under section 2 (s) the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it. The designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the employee concerned and not some works incidentally done. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory work. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of 'workmen' as defined in section 2 (s) of the I.D. Act." 23 From all these judgment it is clear that it is not designation which decides the fact whether a particular employee is working as a Supervisor or not rather it is ID NO. 94/11 14/29 the actual work which is assigned to the particular worker and the same decides the fact as to whether particular employee is coming within the category of Supervisor or whether he is discharging Managerial or administrative activities in the management or whether he is simply employee. The salary of the workman as per admission of the management is Rs. 6000/ only. The nature of the work which has been assigned is control of quality of final product. To whom he was supervising has not been explained. It has nowhere come in the evidence of the management that the worker was working as production head or was competent to check the quality of the final product. Otherwise also it is the case of the management itself that workman is only 12th passed and is not qualified engineer rather when workman claim that he was appointed as auto parts engineer, this fact was denied by the management in the written statement. Therefore, in absence of any particular education / qualification of the workman and in absence of any experience certificate on the court record with respect to his being competent to have been appointed as quality controller and in absence of document by which the workman has been authorized to act as Supervisor, the Court is of the opinion that mere designation given by the management in the ESI return or in the salary register is not sufficient to opine that workman falls within the definition of Supervisor or he was discharging the functions of Supervisor or such other functions which were administrative or managerial in nature. In view of above discussion, the workman has been able to prove that he comes within the definition of workman under Section 2 (s) of the ID Act. This issue is disposed off accordingly. ISSUE NO.3 24 The onus to prove issue no. 3 was upon the workman and he had to prove ID NO. 94/11 15/29 that he has completed 240 days of continuous service with the management during the preceding 12 months from the alleged date of his termination. 25 Workman in his statement of claim has stated that he was in service of the management from 1.04.08 and his services have been terminated illegally on 19.11.10 and as such he has completed 240 days of continuous service with the management during the preceding 12 months.
26 The management in its written statement has taken the preliminary objection that the workman himself was guilty of misconduct as he was not diligent and regular in performing its duty and he usually used to remain absent from the duties and he was warned number of times and even he was given a show cause notice to improve his performance and as per the records maintained, the workman was not regularly coming to the factory for his duty and the company was suffering adversely due to irregularities on the part of the workman and it was also suffering production loss and income loss and it was further stated that he was absent for number of days in the months of July 2010 to October 2010 and he was guilty of misconduct. The workman has examined himself and deposed in terms of statement of claim and in cross examination he denied the suggestion that he was not punctual in attending his duties and also denied that he was absent for 6 days without intimating the management in August 2010, or that he attended only for 14 days in September 2010 or that he attended for only 9.5 days in October 2010 or that he attended only for 13 days attended in November 2010. MW3 was the director of the management was also cross examined by the Ld.ARW and there is no cross examination of MW3 with respect to attendance register/salary register filed by the management on the court record.
ID NO. 94/11 16/29 27 I have perused the salary register filed by the management in photocopy and since some of the documents were not legible the management was directed to file the original documents which I have gone through. However, before going through the evidence, the reproduction of the provisions of section 25 (B) and section 25 (F) of the I.D. Act is necessary and it reads as under:
28 Section 25 (F) and (B) of the I.D. Act reads as under: "Section 25(F): Conditions precedent to retrenchment of workmen 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 that employer until
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay(for every completed year of continuous service) or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate government(for such authority as may be specified by the appropriate Government by notification in the official Gazette).
"Section 25(B): (1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, ID NO. 94/11 17/29 including service which may be interrupted on account of sickness or authorized leave or an accident or a strike which is not illegal or a lockout or a cessation of work which is not due to any fault on the part of the workman;
(2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer
(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than
(i) one hundred and ninety days in the case of a workman employed below ground in a mine and
(ii) two hundred and forty days, in any other case
(b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made has actually worked under the employer for not less than
(i) ninety five days, in the case of workman employed below ground in a mine and
(ii) one hundred and twenty days in any other case."
29 As per the combined reading of section 25 F and B of the I.D. Act the formula of calculating the working for 240 days of the workman has to be based on ID NO. 94/11 18/29 the fact as to for what particular period the management has given the salary to the workman i.e. if the workman has given the salary for all 30 days, then even if he was absent from the duty, such absence might have been regularized by the management and as such the absence would not have been attributable to the workman. Salary register has been filed by the management and the court has to calculate the period from 19.11.10 back to 20.12.09. As per the salary, the workman has been paid salary for 21 days in the month of December 2009. He has not been given any salary in the month of January 2010. He was given salary for 24 days in the month of February 2010 i.e. he was present for 20 days and he was on RH for 4 days and he was absent for 4 days, he was given salary for 19 days in the month of March 2010 i.e. he was present for 16 days and he was on RH for 3 days and he was absent for 12 days, he was given salary for 26 days in the month of April 2010 i.e. he was present for 22 days and he was on RH for 4 days and he was absent for 4 days, for 19 days in the month of May 2010 i.e. he was present for 16 days and he was on RH for 3 days and he was absent for 12 days, he was given salary for 18 days in the month of June 2010 i.e. he was present for 15 days and he was on RH for 3 days and he was absent for 12 days, he was given salary for 31 days in the month of July 2010 i.e. he was present for 27 days and he was on RH for 4 days and he was not absent even for a single day in July 2010, he was given salary for 25 days in the month of August 2010 i.e. he was present for 19 days and he was on RH for 6 days and he was absent for 6 days, he was given salary for 14 days in the month of September 2010 i.e. he was present for 14 days and he was absent for 16 days, for 9.5 days in the month of October 2010 i.e. he was present for 7.5 days and he was on RH for 2 days and he was absent for 21.5 days and he was given ID NO. 94/11 19/29 salary for 17 days in the month of November 2010 i.e. he was present for 13 days and he was on RH for 2 days and he was absent for 13 days. In December 2009 the workman has received the salary for 21 days but since 240 days have to be counted from 20.12.09 (from 19.11.10 back to 20.12.09 he has only worked for five days) and since 20.12.09 was a weekly holiday he would be deemed to be on duty for six days in totality and as such this period would come to 208.5 days 30 From all such facts, it means that the workman has not completed 240 days with the management during the preceding 12 months. All the attendance register bears the signatures of the workman and although he has denied his signatures on the attendance register but simultaneously, another point which is quite relevant to be observed is that it is the case of the workman himself that when he objected that instead of cash his salary be given by way of cheque and thereafter, his salary was being deposited by the management by way of cheque and he has never made any objections to the calculation made by the management to his working days and regarding the amount of salary credited to his bank account. Therefore, the records of the management appears to be corroborative and the workman has failed to prove that he has worked for continuous 240 days with the management w.e.f. 19.11.10 way back to 20.10.09. Issue no.3 is answered accordingly.
ISSUE NO. 4 31 The onus of this issue was upon the workman and he had to prove that his services have been terminated by the management illegally and unjustifiably. 32 This is a claim of the workman under section 25F of the I.D. Act and the termination of the workman can only be held to be illegal under section 25F of the I.D. Act if the workman has completed 240 days of service with the management. ID NO. 94/11 20/29 No doubt if the workman had misconducted by remaining absent from the duties, the management has not conducted any domestic enquiry against the workman nor it has issued any show cause notice to the workman thereby asking his explanation as to why he is running absent and why a domestic enquiry be not initiated against him nor the workman has been charge sheeted by the management on the ground of such proven absence of the workman from the official duties. Therefore, the management has definitely acted illegally by terminating the services of the workman straight away without issuing any notice or without conducting any domestic enquiry. However, the next question which is equally important is that whether such termination can be termed as illegal or not or whether it attracts the provisions of section 25 (F) of the I.D. Act. While disposing of the issue no. 3, it has already been held by the court that the workman has not been able to prove that he has completed 240 days of continuous service with the management during the preceding 12 months from the date of termination. If the workman has not completed 240 days of continuous service with the management during the preceding 12 months, then he is not entitled for the retrenchment compensation provided under section 25F of the I.D. Act. Therefore, keeping in view this fact, the court is of the opinion that the services of the workman although have not been terminated by following due procedure but since the workman has not been able to prove that he has been terminated in violation of section 25 F of the I.D. Act, his services can not be to have been terminated illegally.
ADDITIONAL ISSUE NO.1 33 Now coming to additional issue no. 1 i.e. whether this court has got the territorial jurisdiction to try, entertain and decide the present dispute. ID NO. 94/11 21/29 34 The onus of this issue was upon the workman and he had to prove that this court has territorial jurisdiction to entertain the present dispute. The management in the written statement has taken the preliminary objections that this Court has no territorial jurisdiction to try and entertain the present controversy between the parties as the workman as per his own averment was working at Kundli, District Sonepat. Initially, this issue was not framed and when the parties had concluded their evidence an application was filed by the management for framing of additional issues which application after hearing was allowed and two additional issues were framed on 4.8.12 and parties were given opportunity to inform the Court if any of the party intend to lead further evidence on the issues framed on 4.8.12. On 22.8.12 none of the party moved any application to lead additional evidence on additional issues framed and as such no further evidence was lead. The court otherwise observed that there was already sufficient evidence on the record and as such the issue is being disposed of on the basis of material available on record. 35 In cross examination WW1 admitted that unfinished goods and raw material was received, processing of the same was done and dispatching of the finished goods was done at Kundli, Sonepat till he worked with the management. He further deposed that earlier Head Office of the management was at Netaji Subhash Place, Delhi. He further deposed that all the process started at Kundli, Sonepat w.e.f. June, 2008 but all the documents were being prepared at Netaji Subhash Place, Delhi. The room where the head office of the management was situated was around 20x12 feet and there were around 21 employees working at Kundli, Sonipat. He admitted as correct that entire accounts department as well as computer, books of account prepared in due course of business is done at Kundli, Sonepat and salary ID NO. 94/11 22/29 disbursement was also done at Kundli, Sonepat. He admitted as correct that when he received his salary from the management, he used to sign on the register for the amount received by him towards his monthly salary.
36 The MW3 in his cross examination admitted that registration and membership certificate was issued at Delhi's address to be correct. He also admitted as correct that office of management at Netaji Subhash Place which is mentioned as in the Ex.WW1/6 and Ex.WW1/8 and the same is correct address of the management.
37 This is the entire evidence touching this issue. The necessary preposition which emerges from all this evidence is that the workman had been working at Sonepat but the Head Office of the management is at Delhi and the sole question arises whether the claimant can file the claim in the Labour Court at Delhi when the Head Office of the management is within the territorial jurisdiction of Delhi Courts. The law with respect to jurisdiction is well settled.
38 In the judgment titled "Neslin Joseph Prim Vs. PO Central Government Industrial Tribunal Cum Labour Court, Chennai & Anr., 2003, LLR 52", the law with respect to jurisdiction was discussed and it was interalia held as follows: i Where does the order of the termination of services would operate? ii Is there some nexus between the industrial dispute arising from termination of the services of the workman and the territory of the State? iii That the well known test of jurisdiction of a civil court including the residence of the parties and the subject matter of the dispute substantially arising therein would be applicable.
39 In case titled as "Lohia Starlinger Ltd. & Anr. Versus Govt. of NCT of ID NO. 94/11 23/29 Delhi, 2006 LLR Page 905 DHC", in which an employee was transferred from Delhi to Kanpur and the matter was challenged before the Delhi Government and it was ultimately held by the Hon'ble High Court that the territorial jurisdiction will not be at Delhi but at Kanpur as Industrial Disputes Act does not provide situs of jurisdiction.
40 Further, in judgment tiled as "Paritosh Kumar Pal versus State of Bihar, 1985 Vol 50 FLR Page 213 Patna High Court Full Bench", wherein the workman was employed by the establishment at Calcutta but the workman otherwise was posted in Bihar where the management was doing its own business. The termination of the workman was challenged and it was held that since the workman was lastly working in State of Bihar, the State of Bihar is competent to make the reference. Again in this matter, it was decided that the situs of employment of workman would determine the jurisdiction.
41 Further in judgment titled as "T.V. Swamy versus Management of Best and Crompton Madras, 2010 LLR Page 1045, Madras High Court" and in the said case, the workman was appointed at Calcutta Registered Office and he in fact was working at Jamshedpur and he was terminated at Jamshedpur within jurisdiction of Bihar Government and he raised the industrial dispute at Chennai and the Hon'ble Madras Court ultimately held that the Court of Chennai will not have jurisdiction to entertain the dispute.
42 In the judgment titled Taj Services Ltd. Vs Industrial DisputeI & Ors., 181 (2011) DLT 793, it was interalia held by the Hon'ble High Court of Delhi that "the facts and circumstances of the present case where the printing division was situated at Noida having Sales Tax registration and ESI contributions under Uttar Pradesh ID NO. 94/11 24/29 Local Laws and Act are being met by the management to its printing division at Noida and it was held that the Tribunal at Delhi does not have the jurisdiction." 43 Further, even in the judgment titled Hindustan Lever vs Union of India, 162 (2009) DLT 246, it was interalia held that the situs of the employment of the workman at the time of termination determines the question of jurisdiction of the court to entertain and decide the reference and the fact that where the workman would be joining the management would be deciding the situs of the employment of the workman and the same would be decided the jurisdiction of the court. 44 Further, in the judgment titled Bikash Bhushan Ghosh vs. Novaratis India Ltd. & Anr., VI (2007) SLT 224, it was interalia held by the Hon'ble Supreme Court of India that there should clearly be some nexus between the dispute and the territory of State and not necessarily between the territory of State and the industry concerning where the dispute arose.
45 Ld. ARW on the other hand has relied upon one judgment titled Rajkumar Jaiswal vs. Rangi International Pvt. Ltd., 2009 (113) DRJ 620. In that matter the management was having its registered office at Delhi and the workman was transferred from Delhi to Gurgaon and the court, interalia, held that State Government having jurisdiction over the place from which the employer exercises effective control would have jurisdiction to make the reference and it was held that court of Delhi has jurisdiction to decide the present matter. 46 The outcome of all these judgments is that under the Industrial Disputes Act, the jurisdiction with respect to termination of the services of a particular workman would be at a place where the order of transfer would operate i.e. where the worker has to work or had been working or whether the cause of action for terminating the ID NO. 94/11 25/29 services of the workman has arisen and not merely where the Head Office of the management is situated.
47 I have perused the facts of the present case. Coming to the facts of this case. It is admitted proposition of fact that the workman was getting his salary from Sonepat; he was working and falling within the definition of 'workman' under section 2 (s) of the I.D. Act as he was discharging the functions of quality controller of the products which factory is at Sonepat and he filed even first complaint to the SHO Kundli, Sonepat thereby informing it that his services have been terminated from the factory which is situated at Sonepat. It is admitted fact that the management has no factory in Delhi and only the head office of the management in Delhi. There is no evidence on court record as to what work the workman was doing or supposed to do in Delhi in its head office. If he would have claimed himself to be the supervisor of the management somehow he could have claimed that he was posted in Delhi office as a supervisor but that is not the case of the workman. Therefore, as far as the effective control, salary and the assignment of the duties of the workman is concerned, it is being done at Sonepat. 48 Now coming to the arising of cause of action is concerned, it is admitted case of the workman that the workman was terminated when he was posted at Sonepat, Kundli. It is also matter of record that the first complaint after the alleged termination of the workman was filed by the workman before the SHO PS Kundli and it reads as under: "With due respect it is submitted that I, Vijay Kumar Sharma, s/o late Satember Sharma, r/o WZ83/9, Garib Basti, Rama Road, New Delhi15 had been working into the ID NO. 94/11 26/29 employment of M/s Intraco Impex Pvt. Ltd., Plot no.104, Phase IV, Kundli, Haryana as Auto Parts Engineer since 1.4.2008 on last drawn monthly salary of Rs. 15,250/ p.m."
49 From this fact it is clear that the workman had been working at Sonepat and his job profile otherwise was of such a nature that he only could have been performed at Sonepat where the factory of the management is situated and therefore, it is clear that the employee was working for all practical purposes at Sonepat and he was terminated from services from Sonepat. He filed first complaint before SHO, Kundli against his termination by specifically mentioning that he was working at Kundli, Sonepat. As far as complaint at Delhi is concerned, it was only regarding giving him a threat of dire consequence and not regarding his termination from Sonepat Factory. Therefore, the court is of the opinion that in such circumstances, the judgment relied upon by Ld.ARW is rather helping the management as the workman has admitted that the entire cause of action has arisen in Kundli, Sonepat and the court is also of the opinion that no cause of action or any part of cause of action has ever arisen in Delhi regarding termination of the workman and accordingly the management has been able to prove that the entire cause of action has arisen at Sonepat. Therefore, the workman has failed to prove that cause of action or any part of cause of action has arisen within the territorial jurisdiction at Delhi mere giving appointment from Delhi office. This issue stands decided accordingly.
ADDITONAL ISSUE NO.2 50 As far as issue additional issue with respect to misconduct is concerned, this issue was specifically framed as to whether the workman is guilty of misconduct by ID NO. 94/11 27/29 absenting illegally from the official duties of the management. 51 By way of evidence, the management has been able to prove that the workman has only worked for 208.5 days with the management during the preceding 12 months from the alleged date of his termination as it has been held by this court while disposing off issue no. 3. The court is taking a thread from the discussion made while disposing off the issue no. 3 and accordingly it is held that that the workman has misconducted by remaining regularly absent from the official duties of the management. Additional issue no. 1 is answered accordingly. RELIEF 52 Since the workman has not been able to prove that his services have been terminated by the management in violation of provisions of section 25 (F) of the I.D. Act and since he could not prove that he had worked for continuous 240 days with the management in the preceding 12 months in terms of issue no.3, he is not entitled to any relief against the management under section 25 (F) of the I.D. Act and an award to that effect is passed today separately.
A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt/Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
ANNOUNCED IN THE OPEN COURT (S.S. MALHOTRA)
ON 2nd May, 2013 PRESIDING OFFICER LABOUR COURT
IX
/KARKARDOOMA COURTS,
DELHI
ID NO. 94/11 28/29
ID NO. 94/11 29/29