Delhi District Court
2.1996 Having Three Years And Four ... vs 3.1999 Thereby Having More Than One Year ... on 12 March, 2007
1
I.D. No. 45/00.
IN THE COURT OF SH. GURDEEP KUMAR: PRESIDING OFFICER:
LABOUR COURT NO.1 : ROOM NO. 52 : KARKARDOOMA : DELHI.
BETWEEN
M/s. Rajeev Stamping Pvt. Ltd., A-36, Jhilmil Indl. Area,
Shahdara, Delhi-95.
AND
Its workmen C/o Engg. Workers Ldl Jhanda Union, B-1/A,
Nathu Colony (East), Shahdara, Delhi-93.
AWARD :
Vide Notification No. F. 24 (5129)/ 1999- Lab. / 3248-
52 dated 27.01.2000, Secretary Labour, Delhi
Administration, Delhi has referred this dispute to this court for
its adjudication u/s 10 (1)(c) and 12 (5) of the I.D. Act, 1947.
The terms of reference are as under :-
''Whether the services of S/Sh. Manoj
Prasad, Praveen Kumar Sharma,
Pappu Mehto, Satpal Singh, Ram
Subhag, Vijay Kumar, Sujeet Kumar,
Gopal Singh, Pappu Kumar, Suresh
Kumar, Kailash Yadav, Rajesh Kumar
Singh, Kishore, Abhiraj Singh, Krishan
Kumar, Shailender and Smt. Seema
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?''
Contd..
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I.D. No. 45/00.
Workmen's / claimants' case in brief is that they had
been working on the post, last drawn wages and since the
period mentioned below :-
Name Post Last drawn Date of
salary joining
Manoj Prasad Operator 2515/- 02/05/95
Praveen Kumar
Helper 1500/- 01/01/98
Sharma
Pappu Mehto Operator 2515/- 01/04/95
Sat Pal Singh Operator 2515/- 01/03/98
Ram Subhag Operator 2515/- 01/03/95
Vijay Kumar Helper 1500/- 01/02/98
Sujeet Kumar Helper 2348/- 31/12/96
Gopal Singh Helper 1500/- 01/02/98
Pappu Kumar Helper 2348/- 03/03/97
Suresh Kumar Helper 2348/- 03/03/97
Kailash Yadav Helper 2348/- 02/03/97
Rajesh Kumar Singh Operator 2515/- 02/03/97
Kishore Operator 2514/- 02/02/94
Abhiraj Singh Operator 2514/- 02/04/93
Krishan Kumar Operator 2514/ 01/02/96
Shailender Operator 2514/- 02/02/95
Smt. Seema Helper 1500/- 02/02/97
It is further averred that management had no
Contd..
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I.D. No. 45/00.
complaint against the workmen during the tenure of their
services and they had been working to the entire
satisfaction of the management. They had demanded
legal facilities like overtimes, minimum wages, leaves, P.F,
medical facilities, attendance card, ESI etc. but the
management did not provide the same. The management
also did not maintain proper record of the workmen despite
assurances given from time to time. The management had
adopted anti labour policy on which the workmen joined
the union. The management used to put pressure on them
to leave union.
2. It is further averred that management had
transferred the workmen to work in another sister concern
and the management had anvoid to the workmen and
closed the firm and had terminated the services on
09/06/1999. In fact, the management had not closed the
firm and this was noticed by the Labour Inspector during his
visit. It is further averred that management did not serve
Contd..
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I.D. No. 45/00.
any notice, notice pay and was not given any charge sheet
nor conducted any domestic enquiry against them. They
were even not paid the earned wages for the month of
May, 1999 besides other dues. The matter was reported to
the Assistant Labour Commissioner, Labour Office,
Vishwakarma Nagar, Shahdara, Delhi. Labour Inspector
visited the firm and advised the management to pay
earned wages to the workers for May, 1999 and to reinstate
them, but the management declined. The workmen sent
demand notice through the union vide registered post
dated 21.06.1999 but the management did not reply. It is
further averred that the workmen are unemployed since
the date of termination and have not been able to find
another job despite several demands. They have sought
their reinstatement with continuity of service, full back
wages and other benefits.
3. The management has filed Written Statement
stating that it was not feasible to run the establishment and,
Contd..
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I.D. No. 45/00.
therefore, it was decided by the management to close the
same and the same was closed w.e.f. 09.06.1999. The
employees were intimated accordingly vide letters dated
07.06.1999. They were also remitted full and final settlement
by the company by account pay cheques but the
claimants of their own volition refused to receive the said
cheques and the same have been received back
undelivered. All the Government authorities including ESI,
Provident Fund Department were duly informed regarding
closure of the management w.e.f 07.06.1999. It is denied
that management has refused to pay the earned wages for
the month of May, 1999. The management has also denied
that any of the claimants were transferred to work in
another sister concern of the respondent management or
their services were terminated illegally and unjustifiably. According to the management, along with notice of closure, cheques of the due amount of all the employees were sent to them by registered post, but the employees did not accept the same of their own and the same were Contd..
6I.D. No. 45/00.
received back undelivered.
4. With regard to claimants, namely, Praveen Kumar, Vijay Kumar and Gopal Singh and Ms. Seema, it is averred that they were never in the employment of the management and so there is no relationship of employer and employee between them and the management. It is further averred that claimants, namely, Ram Subhag, Sujeet Kumar and Shailender have taken their full and final amount from the management and have accepted the same. Whereas the others have refused to accept the cheques sent to them for their due amount as already mentioned above. It is also denied that claimants are unemployed and have not got the job after closure of the management. According to the management, they are gainfully employed and are not entitled to reinstatement of services besides other benefits.
6. The claimants have filed rejoinder denying the Contd..
7I.D. No. 45/00.
averments in the Written Statement and reiterating the facts stated in the Statement of Claim.
7. On the above facts / pleadings, following issues were settled on 18.10.2001 by my ld. Predecessor :-
1. Whether there exists relationship between Praveen Kumar, Vijay Kumar, Gopal Singh and Seema as pleaded in para 1 of the Written Statement?
2. Whether the management was closed w.e.f. 09.06.1999?
3. As per terms of reference.
8. Thereafter the workmen have adduced their evidence in which they examined the workmen, namely, WW1 - Kailash Yadav, WW2 - Pappu Mehto, WW3 - Pappu Kumar, WW4 - Krishan Kumar, WW5 - Abhiraj, WW6 - Kishore, WW7 - Manoj Prasad, WW8 - Satpal, WW9 - Gopal, WW11 - Praveen Kumar and WW10 - Raj Kumar Joshi, Labour Inspector. W.A.R Mr. Ajit Singh closed his workmen evidence Contd..
8I.D. No. 45/00.
vide his statement on 04.02.2005. On the other hand, the management examined one of its Directors i.e. M.W1 Mr. Prem Chand Goyal and did not lead any other evidence.
9. WW1 to WW9 as well as WW11 Praveen Kumar have tendered their respective affidavits in evidence which are duly attested by Oath Commissioner appointed by the Hon'ble High Court of Delhi. Therein they all have reiterated their averments as spelled out in the Statement of Claim and briefly stated above. Besides, they have relied upon the documents Ext. WW1/1 a complaint by the union to the Assistant Labour Commissioner, Ext. WW1/2 a report dated 15.12.1999 relating to his visit on 13.02.1999 to the management by Raj Kumar Joshi, Labour Inspector, Ext. WW1/3 demand notice, Ext. WW1/4 a postal receipt, Ext. WW1/5 A. D. card. WW1 also relied upon ESI card Ext. WW1/A, WW2 relied upon his ESI card Ext. WW2/A, WW2/4 relied upon his ESI card Ext. WW4/A, WW5 relied upon his ESI card Ext. WW5/A and WW6 relied upon his ESI card Ext.
Contd..
9I.D. No. 45/00.
WW6/A.
10. On the other hand, M.W1 Mr. Prem Chand Goyal deposed that he is one of the Directors of M/s. Rajeev Stampings (P) Ltd. He tendered his affidavit which is duly attested by the Oath Commissioner appointed by the Hon'ble High Court of Delhi. In that affidavit he reiterated on oath averments as spelled out in the Written Statement. Besides, he relied upon the letters along with the cheques Ext. MW1/9 to MW1/24 and the sealed covers Ext. MW1/25 to MW1/32. He also relied upon Ext. MW1/33 stating that the Central Excise Authorities were informed in that regard. He also stated that Regional Provident Fund Commissioner was informed regarding closure of the factory vide letter dated 07/06/1999 and the said letter alongwith postal receipt is Ext. MW1/34. He further stated that copy of the inspection book duly signed by Provident Fund Inspector is Ext. MW1/35. He further deposed that management also informed the ESI Department vide its letter dated 07/06/1999 regarding Contd..
10I.D. No. 45/00.
closure of the factory which is Ext. MW1/36. He further stated that the management also informed the Sales Tax Office in respect of suspension of trading vide letter Ext. MW1/37.
Besides, M.W1 Mr. Prem Chand Goyal stated that the employees, namely, Manoj Prasad, Krishan Kumar, Abhiraj, Pappu Kumar, Pappu Mehto, Kishore, Kailash Yadav and Satpal Singh had been employed with the management w.e.f. 15.02.1999 and they were employed with the management for less than 240 days. In that regard he relied upon Ext. MW1/1 to MW1/8, the applications submitted by the said workmen to the management.
11. I have heard A.R for both the parties and considered the submissions made by them. I have also carefully gone through the written arguments filed by both the parties.
12. Before coming to the findings on the issues, it is Contd..
11I.D. No. 45/00.
mentioned that the reference is received in respect of 17 claimants already mentioned above. Out of them, the claimants, namely, Sujeet Kumar, Ram Subhag and Shailender did not file Statement of Claim. That means out of 17 workers mentioned in the reference, only 14 filed their Statement of Claim. For want of any Statement of Claim by the workmen, namely, Sujeet Kumar, Ram Subhag and Shailender, they are not entitled to any relief or directions from this Court. Two other claimants, namely, Suresh Kumar and Rajesh Kumar Singh though filed their Statement of Claim, but did not file their affidavits in evidence nor adduced any other evidence to prove that their services were terminated by the management illegally and unjustifiably. For want of any evidence by the said claimants, namely, Suresh Kumar and Rajesh Kumar Singh, they both are not entitled to any relief or directions from this Court. Now, we are left with the claims of only 10 workmen, namely, Kailash Yadav, Pappu Mehto, Pappu Kumar, Krishan Kumar, Abhiraj Singh, Kishore, Manoj Prasad, Satpal Contd..
12I.D. No. 45/00.
Singh, Gopal Singh and Praveen Kumar.
My findings on the issues are as under :-
ISSUE NO. 1.
13. As the issue states itself it relates to existence of relationship of employer and employee between the management and the claimants, namely, Praveen Kumar, Vijay Kumar, Gopal Singh and Ms. Seema. It is settled law that onus is on the claimant to prove existence of relationship of employer and employee between him and the management. Reference in this regard may be made to a decision of the Hon'ble Apex Court in the case of Workmen of Nilgiri Coop. Marketing Society Ltd. Vs. State of Tamil Nadu and Ors. 2004 LLR 351 wherein Their Lordships have clearly laid down that burden of proof for existence of relationship of employer and employee lies upon the the Contd..
13I.D. No. 45/00.
person who sets up a plea of its existence. In this case the claimants, namely, Praveen Kumar, Vijay Kumar, Gopal Singh and Ms. Seema have claimed existence of relationship of employer and employee between them and the management. In the light of the aforesaid proposition of law laid down by the Hon'ble Apex Court, onus is on the claimants, namely, Praveen Kumar, Vijay Kumar, Gopal Singh and Ms. Seema to prove that relationship.
Reference in this regard may also be made to the decision of Hon'ble Apex Court reported as R.M. Yellatti and Assistant Executive Engineer 2006 (108) FLR 213 and Surendranagar District Panchayat & Anr. Vs. Jethabhai Pitamberbhai 2005 IX AD (S.C) 50. In the light of the said proposition of law, onus is on the claimants, namely, Praveen Kumar, Vijay Kumar, Gopal Singh and Ms. Seema to prove relationship of employer and employee between them and the management.
Coming to the case of Ms. Seema and Vijay Kumar, it is noticed that they did not file their respective affidavits in Contd..
14I.D. No. 45/00.
evidence to adduce their evidence nor they examined anybody else in order to discharge that initial burden of proof. In the absence of any evidence by the said claimants, it is held that both the claimants, namely, Vijay Kumar and Ms. Seema have failed to prove existence of relationship of employer and employee between them and the management.
14. Coming to the claimant, namely, Gopal Singh, the only evidence is his own self serving affidavit in evidence. In his cross examination he admitted that he does not have any document to show that he ever being employee of the management. He has not adduced any other evidence to prove existence of the said relationship of employer and employee between him and the management. On the basis of his self serving affidavit in evidence, he cannot be said to have discharged the initial burden of proof which lies on him. Therefore, it is held that the claimant, namely, Gopal Singh has failed to prove existence of relationship of Contd..
15I.D. No. 45/00.
employer and employee between him and the management.
15. As regards the workman, namely, Praveen Kumar, again there is his own self serving affidavit in evidence. He has not adduced any other cogent and authentic evidence to discharge the said initial burden which lies on him. As admitted by him, in his cross examination, he does not have any document whatsoever to show that he ever being in service of the management. He has relied upon Labour Inspector report which has been marked as Ext. WW1/2. It is noticed that the said report Ext. WW1/2 has not been proved in evidence as required under the law. It is found that the workman had examined the said Labour Inspector Mr. Raj Kumar Joshi as WW10 but the report Ext. WW1/2 was not got proved in his statement for the reasons best known to the workman. Since the author of WW1/2 has not stated anything with regard to the said report (Ext. WW1/2), it cannot be read in evidence against the Contd..
16I.D. No. 45/00.
management. So practically there is no evidence other than the self serving affidavit of the claimant Praveen Kumar which is not sufficient to discharge the initial burden of proof which lies on him to prove existence of relationship of employer and employee between him and the management.
Therefore, the workmen, namely, Praveen, Vijay Kumar, Gopal Singh and Ms. Seema have failed to prove existence of employer and employee between them and the management. Therefore, the issue is decided against those claimants and in favour of the management. ISSUE No. 2
16. The plea of the workmen is that the management had transferred them to work in another sister concern and closed the management firm thereby terminated their services on 09.06.1999 illegally and unjustifiably. On the other hand, the plea of the management is that it was not Contd..
17I.D. No. 45/00.
feasible for them to run the establishment and, therefore, it was decided by the management to close the same and the same was closed w.e.f. 09.06.1999. All the Government Departments including ESI and EPF were duly informed in that regard. Besides, the employees were also intimated in that regard vide letters dated 07.06.1999 and along with those letters the cheques of their legal dues were sent to them by registered post. Some of them, namely, Ram Subhag, Sujeet Kumar and Shailender (who have not filed Statement of Claim ) accepted their full and final dues and received the same. Rest of the workmen other than Praveen Kumar, Vijay Kumar, Gopal Singh and Ms. Seema (who are not admitted to be employees of the management), on their on volition refused to accept the registered envelopes containing the letter and cheques of their legal dues and the same were received back as undelivered. Onus is on the management to prove that it has been closed w.e.f. 09.06.1999.
Contd..
18I.D. No. 45/00.
17. M.W. 1 Mr. Prem Chand Goyal, one of the Directors of the management deposed that management is lying closed since 07.06.1999. He further deposed that the concerned authorities were duly informed regarding closure of the management. He has proved the documents in that regard which are Ext. MW1/33, MW1/34, MW1/35, MW1/36 and MW1/37.
Ext. MW1/33 is the letter written by the management to the Superintendent, Central Excise, Preet Vihar, Delhi whereby he was informed regarding final closure of the activities at the factory of the management w.e.f. 09.06.1999 along with the said letter in accordance with the decision of the Board of Directors vide resolution dated 19.05.1999 and the Registration Certificate in the name of the management was surrendered in original. Vide Ext. MW1/34, management had informed ESIC, Rajender Palace, New Delhi regarding closure of the manufacturing activities of the management. Ext. MW1/35 is a report by the Provident Fund Inspector in which he confirmed final Contd..
19I.D. No. 45/00.
closure of the management. Ext. MW1/36 is the letter by the management to the Provident Fund Commissioner, Employees Provident Fund whereby he was informed about the closure of the management and production w.e.f. 07.06.1999. Ext. MW1/37 is a letter to the Sales Tax Office furnishing information regarding suspension of trading by the management.
18. On the other hand, a suggestion was put by the management in cross examination of WW1 to WW9 as well as WW11 that the management stands closed w.e.f. 08.06.1999 and a notice to that effect was affixed on the notice board of the factory. The said workmen denied that suggestion reiterating that the factory is being run today in the name of the Rajeev Stamping.
WW10, Raj Kumar Joshi, the concerned Labour Inspector deposed that during his posting as Labour Inspector from 1997 till October, 2001 he received complaints Ext. WW10/1, WW10/2 and WW10/3 and he Contd..
20I.D. No. 45/00.
submitted his report Ext. WW10/4 to the union through his office. In his cross examination, he stated that he visited M/s. Rajeev Stamping Pvt. Ltd. (wrongly typed as Rajiv Establishment Pvt. Ltd. at A-36, Jhilmil Indl. Area ) on 11.06.1999. He did not find any worker / employee working there and according to him on that day factory was not running. In his cross examination, he stated that on 02.02.2001 along with Labour Inspector, Sh. Praveen Kumar he visited the said factory and that he met one Mr. Ravinder Kumar son of Sukh Dayal who told him that M/s. R.K. Electrical is functioning there and he was proprietor of that firm. He even challaned the said factory for not producing the record later on.
19. In his submissions, ld. A.R for the management, while referring to the statement of WW10 - Raj Kumar Joshi, which was a witness examined by the workmen as well as the oral deposition of M.W1, Prem Chand Goyal and the documents proved by him, submitted that the closure of factory at A-
Contd..
21I.D. No. 45/00.
36, Jhilmil Industrial Area by the management is proved and it was due to non feasibility and thus was forced to close down the factory. He has further argued that since the aforesaid workmen did not accept registered envelopes containing letters of information of closure along with the cheques of their legal dues, no dispute award has to be passed.
On the other hand, the A.R for the workmen argued that management had transferred the workmen to work in another sister concern and since the management was annoyed with them, it closed the firm and thereby terminated their services w.e.f. 09.06.1999. Whereas in fact management has not closed down the business. A.R for the workmen has further argued that as admitted by M.W1, the demand notice sent by the workmen was not replied by the management. It is further argued by the A.R that the management has not filed the Sales Tax, Provident Fund, ESI and closure certificate nor certificate of dis-connection of electricity has been filed. During inspection on 02.02.2001, Contd..
22I.D. No. 45/00.
Labour Inspector has confirmed running of the management vide his report Ext. WW10/E. It is also argued by the W.A.R that the management has not filed any document to show disposal of all the machines and, therefore, management has not closed its firm, namely, M/s. Rajeev Stamping Pvt. Ltd. In support of his contention W.A.R. has relied upon the case law as under :-
1. Autocentre Workshop Vs. Delhi Administration and others 2006 - I - LLJ 1027.
2. Industrial Perfumes Ltd. Vs. Industrial Perfumes Workers Union, 1998 LLR 691.
3. Orissa Textile & Steel Ltd. Etc Vs. State of Orissa and Others 225 LLR 2002
20. I have gone through the aforesaid case law. In the case in Autocentre Workshop Vs. Delhi Administration and Others (supra), it was held by Their Lordships that question whether closure is bona fide, is within scope of the Labour Court's adjudication upon validity of termination of service.
Contd..
23I.D. No. 45/00.
In Industrial Perfumes Ltd. Vs. Industrial Perfumes Workers Union (supra) it has been laid down by Their Lordships that even if the Court should not go into the sufficiency or adequacy of the material, the court can still consider whether in fact the closure is real or genuine and whether in fact there is a closure at law. Courts today can lift the veil to see what lies behind it. It is no longer a secret room which cannot be entered into.
In the case of Orissa Textile & Steel Ltd., etc. etc. Vs. State of Orissa & Ors., etc. etc. (supra), the Hon'ble Apex Court held as under :-
"Under the amended provisions, the appropriate government, before passing an order is bound to make an enquiry. Now the order passed by the appropriate government has to be in writing and contain reasons. As in the case of retrenchment, so also in closure, the employer has to give notice by filling up a form in which he has to give precised details and information. Now an opportunity to be heard would have to be afforded to the employer, workmen and all persons interested. The detailed information which the employer gives would enable the appropriate Contd..24
I.D. No. 45/00.
government to make-up its mind and collect necessary facts for the purposes of granting or refusing permission. The appropriate government would have to ascertain whether the information furnished is correct and whether the proposed action is necessary and, if so, to what extent."
21. Herein the first thing to be decided is whether there is closure of business by the management or not. As laid down by the Hon'ble Apex Court in Express Newspapers Limited Vs. Their Workers and Staff and Others 1962 (5) FLR 205 closure of establishment without closure of business is not a closure at law. Therefore, it has to be looked into whether there is closure of business or not. Onus is on the management. M.W.1, Prem Chand Goyal, Director of the management has deposed that the management had informed the Central Excise Department vide Ext. MW1/33 regarding closure of manufacturing activities at the factory situated at A-36, Jhilmil Industrial Area, Shahdara, Delhi and also surrendered the registration certificate issued in the name of the firm. The management has also relied upon Contd..
25I.D. No. 45/00.
Ext. MW1/34 a letter written to the Regional Director ESIC in that regard. It has also relied upon Ext. MW1/35 an inspection report signed by the Provident Fund Inspector. It has also relied upon Ext. MW1/36 a letter written to the Provident Fund Commissioner to the same effect. After careful scrutiny of evidence brought on record by the management, it is found that Ext. MW1/33 is only a photocopy and office copy of that letter has not been produced in the Court nor the official from the concerned department has been examined to prove its receipt in that office. The official / inspector with original letter, who allegedly received it on 30.06.1999 under his signatures, has not been examined by the management to prove that the original of Ext. MW1/33 was ever received in the Central Excise Department. Similarly, Ext. MW1/34 is also not proved in evidence as required under the law. It is only a photocopy. The office copy of that letter is not produced nor the original has been summoned from the office of ESIC. The postal receipt which is a part of Ext. MW1/34 is also only Contd..
26I.D. No. 45/00.
a photocopy. The original postal receipt is not produced nor there is any proof of its receipt / acknowledgment in the office of ESIC. Therefore, Ext. MW1/34 is also not proved in evidence as required under the law and cannot be considered for any purpose. Ext. MW1/35 is also not proved in evidence as its subscriber is not examined nor the original report has been produced in the Court. Therefore, this also does not help the management in any manner. Coming to Ext. MW1/36, again its contents are not proved as per law. Ext. MW1/36 is only a photocopy of letter and the postal receipt. The office copy of that letter and the original postal receipt have not been produced in the Court and, therefore, the letter Ext. MW1/36 along with postal receipt cannot be said to have been proved in evidence as required under the law and, therefore, these also do not help the management to prove that plea in any manner whatsoever.
22. M.W1, Mr. Prem Chand Goyal has deposed that Contd..
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management has sent letter to the Labour Commissioner intimating closure of the factory of the management w.e.f. 07.06.1999. Copy of any such letter is not placed and proved on record nor its receipt in the office of Labour Commissioner is produced to prove any such information sent to the office of Labour Commissioner. Except bare and bald deposition of M.W1, Mr. Prem Chand Goyal vide his self serving affidavit, there is no cogent and authentic evidence by the management to prove closure of its business. This plea is further falsified by admissions of M.W1, Mr. Prem Chand Goyal in cross examination that the management is still paying income tax in the name of the respondent management. Initial burden of proof lies on the management to prove closure of its business w.e.f 07.06.1999. As discussed above, the management has miserably failed to discharge the said initial burden of proof which lies on it. The issue is accordingly decided against the management and in favour of the workmen.
Contd..
28I.D. No. 45/00.
ISSUE No. 3.
23. As deposed by WW1 - Kailash Yadav, WW2 - Pappu Mehto, WW3 - Pappu Kumar, WW4 - Krishan Kumar, WW5 - Abhiraj, WW6 - Kishore, WW7 - Manoj Prasad, WW8 - Satpal, WW9 - Gopal, WW11 - Praveen Kumar their services were terminated by the management on 09.06.1999 without any notice, or one month wages in lieu of notice, nor they were offered retrenchment compensation as per Section 25-F of the Industrial Disputes Act, 1947 and, therefore, termination of their services is illegal and unjustifiable. It is not the case of the management that any show-cause notice, or one month wages in lieu of notice along with retrenchment compensation, was sent to each of the workmen. The management has proved letters along with the cheques which are Ext. MW1/9 to MW1/24 along with the sealed covers Ext. MW1/25 to MW1/32. Perusal of those documents reveal that vide aforesaid cheques, the management had sent only arrears of earned wages, dues Contd..
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of earned leave and bonus. There is no evidence that one month notice, or one month salary in lieu of notice was sent to each of the workmen and that the said workmen were also offered / tendered legal dues as per Section 25-F of the Industrial Disputes Act, 1947. The management was required to tender one month salary in lieu of one month notice along with 15 days salary in lieu of each competed year of service of each of the workmen. However, the management did not prove to have complied with the said provisions of the law as contained in Section 25-F of the Industrial Disputes Act, 1947. As deposed by WW7 Manoj Prasad his date of appointment is 02.05.1995 and he had four years service on 09.06.1999. These facts which are also spelled out in the Statement of Claim, were not disputed by the management in its Written Statement. The workman Krishan Kumar claimed date of his appointment as 01.02.1996 having three years and four months service. The workman Abhiraj Singh claimed his date of appointment as 02.04.1993 having more than five years service on Contd..
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09.06.1999. Workman Pappu Mehto claimed to be in service of the management from 01.04.1995 having more than four years service to his credit on the relevant dated. Workman Pappu Kumar claimed to be in service of the management since 03.03.1997 thereby having more than two years service to his credit on the relevant date. Workman Kishore claimed to be in the employment of the management from 02.02.1994 and thereby more than five years service to his credit on the relevant date. Workman, Kailash Yadav stated that he is in the employment since 02.03.1997 thereby having more than two years service to his credit before his services were terminated. The workman Sat Pal Singh claimed to have joined the services of the management on 01.03.1999 thereby having more than one year service to his credit. The aforesaid workers had claimed that period of service to their credit in the Statement of Claim which the management is deemed to have admitted for want of any denial in the Written Statement.
Contd..
31I.D. No. 45/00.
24. M.W1, Mr. Prem Chand Goyal has deposed that the said workmen, namely, Manoj Prasad, Krishan Kumar, Abhiraj, Pappu Kumar, Pappu Mehto, Kishore, Kailash Yadav and Sat Pal Singh had joined service of the management on 15.02.1999 and, therefore, did not complete 240 days service before 09.06.1999 and hence reference with regard to these workmen is not maintainable. He has also deposed that the said workmen had submitted applications for employment to the management and the same are Ext. MW1/1 to MW1/8.
The said deposition of M.W.1, Mr. Prem Chand Goyal cannot be considered for want of any pleadings to that effect in the Written Statement. Besides, the said documents were not put to any of those workmen when they entered the witness box in respect of their respective claims. In their cross examination, there is no suggestion by the management that they had submitted applications Ext. MW1/1 to MW1/8 and that they had joined service with the management on 15.02.1999 and not on the dates as Contd..
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mentioned in their Statement of Claim. Management was required to plead all these relevant facts in the Written Statement and then to put in the cross examination of the workmen. Since the management did not plead nor put these relevant facts in the cross examination of the workmen, this contention by the management is an after thought and is not believable. Therefore, the aforesaid eight workmen are admitted to have worked with the management for more than 240 days before 09.06.1999.
25. The above discussion goes to show that the management had terminated services of all the employees, namely, Manoj Prasad, Krishan Kumar, Abhiraj, Pappu Kumar, Pappu Mehto, Kishore, Kailash Yadav and Sat Pal Singh w.e.f. 09.06.1999 without complying with the provisions of Section 25-F of the Industrial Disputes Act, 1947. Therefore, they are deemed to have continued to be in service of the management.
Contd..
33I.D. No. 45/00.
26. Coming to the question of reinstatement and back wages, I am of the considered view that the facts and circumstances of the case point out that it is a fit case to award compensation in lieu of reinstatement and back wages. Law in this regard is well settled. In the case of Pramod Kumar and Anr. Vs. Presiding Officer and Anr. 2006 LLR 302, the workmen had worked only for two year with the respondent corporation and their services were terminated without compliance of Section 25-F of the Industrial Disputes Act, 1947 i.e. providing for retrenchment compensation at the time of their termination. It was held by Their Lordships that in view of long passage of time, direction for reinstatement with back wages could not be granted and claimants were granted compensation of Rs. 50,000/- each along with interest @ 8% per annum. As observed by Their Lordships in that case, it is settled law that an Industrial Tribunal has jurisdiction to direct reinstatement and in a case of wrongful dismissal, reinstatement is the normal rule. However, there are exceptions to this rule and these Contd..
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exceptions have been recognized in various judgments. It has been further observed by Their Lordships that reinstatement has not been considered desirable in cases where there have been strained relationships between employer and employee or there is lack of trust or loss of confidence. Reinstatement is also denied when an employee had been found to be guilty of subversive activity or acting prejudicial to the interest of the industry. Those observations were made by Their Lordships in the light of the pronouncement of the Hon'ble Apex Court in Rattan Singh Vs. Union of India, (1997) 11 SCC 396; Rolston John Vs. Central Government Industrial Tribunal-cum-Labour Court, 1995 (Supplementary) 4 SCC 549 (1194 Lab IC 973), Gujarat State Road Transport Corporation Vs. Mulu Amra AIR 1994 SC 112 and MP Shikshak Sangh Vs. State of MP, 1995 1995 Supplementary (1) SCC 556. In the case of Haryana Tourism Corp. Ltd. Vs. Fakir Chand, (2003) 8 SCC 248 the Hon'ble Apex Court directed a compensation of Rs. 70,000/-, instead of reinstatement with 25% back wages taking into Contd..
35I.D. No. 45/00.
consideration factors like (a) workers were daily wagers (b) workers were not recruited through employment exchange or regular mode of selection (c) services of the workers were terminated long back and (d) consideration nature of work, the workers must have done similar work at least intermittently.
27. Applying the said proposition of law and keeping in view the nature of employment of the workmen, namely, Manoj Prasad, Krishan Kumar, Abhiraj, Pappu Kumar, Pappu Mehto, Kishore, Kailash Yadav and Sat Pal Singh, possibility of their working during the intervening period at least intermittently cannot be ruled out. After taking into account all the relevant factors, including nature of their duties, length of service, last drawn wages and a period of more than 7 years that has elapsed since termination of their services, in my view the said workmen would be entitled to compensation as mentioned below :-
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I.D. No. 45/00.
Name Amount
Manoj Kumar Rs. 35,000/-
Krishan Rs. 32,000/-
Abhiraj Rs. 38,000/-
Pappu Mehto Rs. 34,000/-
Pappu Kumar Rs. 27,000/-
Kishore Rs. 35,000/-
Kailash Yadav Rs. 35,000/-
Sat Pal Singh Rs. 25,000/-
The said workmen, namely, Manoj Prasad, Krishan Kumar, Abhiraj, Pappu Kumar, Pappu Mehto, Kishore, Kailash Yadav and Sat Pal Singh are awarded compensation accordingly and the management is directed to pay the aforesaid amount to the said eight workmen within two months from the date of publication of the award, failing which the workmen shall be entitled to interest on that amount @ 8% per annum from the date of publication of the award till payment / realization of that amount.
28. In the light of the findings on issue No. 1 above, the Contd..
37I.D. No. 45/00.
workmen, namely, Praveen Kumar Sharma, Vijay Kumar, Gopal Singh and Smt. Seema are not entitled to any relief or any directions from this Court.
As mentioned earlier, the claimant namely, Ram Subhag, Sujeet Kumar and Shailender did not file Statement of Claim and, therefore, they are not entitled to any relief or any directions from this Court.
Also mentioned as earlier, the remaining claimants, namely, Suresh Kumar and Rajesh Kumar Singh are also not entitled to any relief or any directions from this Court.
The reference is answered accordingly. Dated : 12.03.2007. (GURDEEP KUMAR) PRESIDING OFFICER:
LABOUR COURT NO.I. Typed 1+6 copies K.K.RDOOMA:DELHI.
Contd..