Delhi District Court
Sureshkumar S/O Prabhu Dayal vs M/S Richlook Garments Pvt. Ltd on 21 May, 2014
Suresh Kumar Vs. M/s Richlook Garments Pvt. Ltd. DID No. 353/08
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI :
KARKARDOOMA COURTS : DELHI
DIRECT INDUSTRIAL DISPUTE (DID) NO. 353/08
UNIQUE CASE ID NO. 02402C0863052008
In the matter of:
SureshKumar S/o Prabhu Dayal,
R/o A1/269, Sultanpuri, Delhi.
.....Workman
Versus
M/s Richlook Garments Pvt. Ltd.
(Through its Managing Director Sh. Shiv Ratan Goel)
J27, Udyog Nagar, Peeragarhi, New Delhi110041
....Management
Date of Institution : 23.12.2008.
Date of reserving for Award : 13.05.2014
Date of Award : 21.05.2014
STATEMENT OF CLAIM ON BEHALF OF WORKMAN U/S 10 (4A) OF THE
INDUSTRIAL DISPUTES ACT, 1947
AWARD
1.CASE OF THE WORKMAN AS PLEADED IN STATEMENT OF CLAIM FILED U/S. 10 (4A) OF THE INDUSTRIAL DISPUTES ACT, 1947 ON 23.12.2008
(i) Workman was working with management as 'Karigar' since 16.02.1998 and he was a permanent employee with his last drawn salary as Rs. 4500/ per month.
(ii) Workman was working with management honestly, sincerely and workman
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was hard working. Workman never gave any chance of any complaint to the
management during tenure of his service.
(iii) On 11.01.2008, management terminated the services of workman without
serving any chargesheet and without holding any domestic inquiry against the workman and, thus, act of terminating the services of workman is absolutely illegal, unlawful and against the principles of natural justice. Management did not serve any legal notice in advance as required Industrial Disputes Act, 1947. Hence, the acts and actions of management are totally baseless and illegal.
(iv) Workman used to do overtime for two hours daily for which workman was not being paid any overtime wages.
(v) The act and action of the management in terminating the services of workman amounts to 'retrenchment' as the management did not follow the provisions of Industrial Disputes Act, 1947.
(vi) Earlier to this, management removed workman from its services on 25.09.2007 and, thereafter, workman approached Bharat Labour Union, Sultanpuri, Delhi and due to intervention of the union, management allowed the workman on duty on 01.11.2007.
(vii) On 20.11.2007, management again removed workman from its services and workman again approached the said union and management again took the workman on duty on 28.12.2007 with the assurance that management will increase the salary of workman to the tune of Rs. 500/ per month.
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(viii) Management again removed the workman from its services on 10.01.2008 by giving bearings (sic) to workman, and also got his signatures on vouchers, blank papers and forcibly threw the workman out of the gate of the firm and, further, threatened the workman with dire consequences in case workman will disclose the said action of the management.
(ix) After being badly misbehaved, workman gave a complaint to P. S. Sultanpuri on 14.01.2008 where the manager of management came at the police station and a compromise was entered wherein management agreed to take back the workman on duty by further assuring to increase the salary of workman by Rs. 500/ per month.
(x) Though the management had agreed to take workman back to its service and to increase monthly salary but thereafter management neither took the workman back on duty nor gave any satisfactory response. On being for demonstration 'Dharna' and 'Pradarshan' before the gate of the company and for restraining the said act (sic), management filed suit for permanent injunction against Bhartiya Labour Union.
(xi) However, no stay was granted by the court of law and the suit is pending before Ms. Priya Kapoor, Civil Judge, Delhi. The date of said suit was fixed for 08.09.2008 and management assured the workman that workman should approach the management with the president of union and management shall take workman back in its service, but management did not do so and rather misbehaved with workman.
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(xii) Management has not followed the principles of natural justice and has
violated the provisions of Industrial Disputes Act, 1947. The management is acting in violation of the norms set under the labour laws and Section 25F of the Industrial Disputes Act, 1947 and the acts of the management are nothing but sheer exploitation for which management is held liable and responsible.
(xiii) The workman was a permanent employee and his share of provident fund was being deducted and deposited. The entire statutory benefits of workman are lying with the management and management has not made any payment to workman. Besides service benefits, management is liable to pay EL, CL and PL and other benefits besides three months notice charge as retrenchment compensation.
(xiv) Workman is still unemployed and he is not earning anything since the date of his termination by the management.
(xv) Workman sent a legal notice dated 09.09.2008 on 12.09.2008 through his counsel by Regd./AD and UPC to the management but management replied the said notice nor reinstated the workman till date (sic).
With these averments, workman prayed that management may be ordered to reinstate the workman with full back wages and continuity of service in the interest of justice.
2. CASE OF MANAGEMENT AS PLEADED IN WRITTEN STATEMENT OF DEFENCE.
Management, while denying the case as pleaded by workman in the Page 4 to 14 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 21.05.2014 Suresh Kumar Vs. M/s Richlook Garments Pvt. Ltd. DID No. 353/08 statement of claim in toto, took the stand that workman was recruited in the factory w.e.f 18.07.2007 as semiskilled workman @ Rs. 3685/ per month as temporary for a period of six months till 18.01.2008. During his short term employment, workman created several problems and tried to attack his supervisor with scissors. Workman was a disturbed person due to his own personal problems and made nuisance inside the company. As alleged, workman himself left the company and did not report back w.e.f 01.11.2007 and continuously created problems by using bad language outside the company. Ultimately, temporary period of employment of workman came to an end on 18.01.2008 which was not extended by the management on account of his conduct and behaviour. No overtime was taken in the factory. Workman worked for less than 240 days with the management. Management denied the averments that signatures of workman were taken on blank vouchers, blank papers and his services were terminated on 10.01.2008. As per management, workman did not report for duty w.e.f 01.11.2007.
Manager of the company did not visit the police station and management is not aware about any police complaint dated 14.01.2008. Management lodged a police report against workman on 18.01.2008 on account of his unlawful activities. Admittedly, management filed a suit for permanent with the objective to restrain the union and workman to hold illegal and unlawful demonstration at the factory of the management. Section 25 F is not attracted in this case. Management sent reply dated 10.10.2008 to the advocate of the workman. At last, management prayed for dismissal of the claim of the workman.
3. REJOINDER Workman filed rejoinder to the WS of the workman denying the stand taken Page 5 to 14 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 21.05.2014 Suresh Kumar Vs. M/s Richlook Garments Pvt. Ltd. DID No. 353/08 by the management and reaffirming the averments made in the statement of claim.
4. ISSUES Vide order dated 04.02.2010, ld. predecessor of this court framed the following issues:
(i) Whether the services of the workman have been illegally and unjustifiably terminated by the management ? OPW
(ii) Whether the employment of the workman was temporary and he worked for less than 240 days with the management ? OPM
(iii) Relief.
5. EVIDENCE Workman appeared in the witness box as WW1 Mr. Suresh Kumar. WE was closed on 19.12.2012 by Mr. Ajit Singh, Adv. for the workman. Management examined MW1 Mr. Rajesh Sharma and ME was closed on 05.06.2013 by Ms. Anjali Dhawan, Adv. for the management.
6. DISPOSAL OF APPLICATION MOVED BY WORKMAN SEEKING PRODUCTION OF DOCUMENTS FROM THE MANAGEMENT Vide order dated 19.09.2013, an application moved by the workman for giving directions to the management to produce certain documents was disposed off by directing the management to produce ESI and EPF record of the workman as per its record.
Pursuant to the said order, on 03.12.2013, Mr. Bhagwan Das AR for the management filed on record certain documents (i.e. one page Mark A regarding the ESI and five pages regarding the EPF record) and, further, stated that no other Page 6 to 14 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 21.05.2014 Suresh Kumar Vs. M/s Richlook Garments Pvt. Ltd. DID No. 353/08 record is available with the management so as to comply the order dated 19.09.2013. On 03.12.2013, it was observed that for noncompliance, if any, of the order dated 19.09.2013 law will take its own course at appropriate stage and case was adjourned to 17.12.2013 for final arguments. On 22.01.2014, ld. counsel for management submitted that one more opportunity may be given so that management may make an attempt to produce the complete documents in compliance of the order dated 19.09.2013. An opportunity was granted to the management to comply with the said order subject to cost of Rs. 1000/ payable by management to workman. Vide order dated 28.02.2014 cost was paid to the workman and opportunity given to the management to comply the order dated 19.09.2013 was closed.
7. ARGUMENTS I have heard Mr. Ajit Singh, adv. for the workman and Ms. Anjali Dhawan, adv. for the management. Written arguments have also been filed by workman as well as management. Ld. counsel for the workman relied upon the case laws reported as (i) Nirmal Kumar Jain Vs. Presiding Officer, Central Govt. Industrial TribunalcumLabour Court, Kanpur and Anr. 2003 LLR 236 (Allahabad High Court) and (ii) DTC Vs. Ishwar Singh 2006 VI AD (Delhi) 537. Materials on judicial file perused.
8. My ISSUEWISE findings are as under: ISSUE No. 2 Whether the employment of the workman was temporary and he worked for less than 240 days with the management ? OPM Page 7 to 14 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 21.05.2014 Suresh Kumar Vs. M/s Richlook Garments Pvt. Ltd. DID No. 353/08 I will first take up issue no.2 which deals with one of the essential ingredients of section 25 F of the Industrial Disputes Act, 1947. Hon'ble Supreme Court of India in case law reported as Surendranagar District Panchayat Vs. Dahyabhai Amarsinh AIR 2006 SC 110 ruled / observed as under: ".......... To attract provisions of Section 25 F, the workman claiming protection under it, has to prove that there exists relationship of employer and employee; that he is a workman within the meaning of Section 2 (s) of the Act; the establishment in which he is employed is an industry within the meaning of the Act and he must have put in not less than one year of continuous service as defined by Section 25B under the employer. These conditions are cumulative. If any of these conditions is missing the provisions of Section 25F will not be attracted. To get relief from the court the workman has to establish that he has right to continue in service and that his service has been terminated without complying with the provisions of Section 25F of the Act..........".
Further, Hon'ble Supreme Court in Krishna Bhagya Jala Nigam Ltd. Vs. Mohammed Rafi, (2009) 11 SCC 522 held that initial burden of proof is on the workman to show that he had completed 240 days of service. In Range Forest Officer Vs. S. T. Hadimani 2002 (3) SC 25 also same view has been expressed. It was held by Hon'ble Supreme Court in this judgment that mere affidavit of the workman was not sufficient to prove that he had worked for 240 days in a year. In Rajasthan State Ganganagar S. Mills Ltd. Vs. State of Rajasthan and Anr. 2004 (8) SCC 161, Hon'ble Supreme Court held thus "It is only his own statement which is in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that in fact the claimant had worked for 240 days in a year". In Manager, Reserve Bank of India, Banglore Vs. S. Marti and Page 8 to 14 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 21.05.2014 Suresh Kumar Vs. M/s Richlook Garments Pvt. Ltd. DID No. 353/08 Ors. 2005 (5) SCC 100, a three Judge Bench of Hon'ble Supreme Court of India held that initial burden of proof was on the workman to show that he had completed 240 days of service. In R. M. Yellatti Vs. The Assistant Executive Engineer, JT 2005 (9) SC 340 also similar view has been taken. In G. M., B. S. N. L. and Ors. Vs. Mahesh Chand, 2008 (2) SCR 950 Hon'ble Supreme Court held that burden of proof lies on workman to prove that he had worked for more than 240 days in preceding year prior to alleged retrenchment. Thus, the onus of proof regarding this issue is on the workman.
As per workman, he was working with the management since 16.02.1998 and his services were finally terminated on 11.01.2008 without serving any chargesheet and without holding any domestic enquiry against the workman. No appointment letter has been produced / proved by workman to show that workman was working with management since 16.02.1998. Also, there is no documentary proof of management terminating the services of workman on 11.01.2008. Also, workman has not produced / proved any documentary proof to show that he worked with management since 16.02.1998 till 11.01.2008 and he was paid salary / wages for this period by the management. Workman is relying upon gate passes Ex.WW1/1 to Ex.WW1/5. Ex.WW1/1 to Ex.WW1/5 are photocopy documents exhibition of which was opposed by ld. counsel for management as the same are photocopies. As regard gate passes Ex. WW1/1 to Ex.WW1/5, MW1 Mr. Rajesh Sharma has been made to depose as under: ".....At this stage documents Ex.WW1/1 to WW1/5 (Gate Passes) shown to the witness and he denied that theses documents relates to the management. I can not say whether Mr. Praveen Kumar is employed in the management or not, but I can say after seen the Page 9 to 14 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 21.05.2014 Suresh Kumar Vs. M/s Richlook Garments Pvt. Ltd. DID No. 353/08 record of the management. It is correct that there is the department of R & D in the management. The management did not issue any Gate Pass. The management used to send the material out of the factory through Challans / Bills. I can not identify the signatures of Sh. Praveen Kumar. Vol I can identify the signatures of Praveen Kumar after seen the records if the signatures found in the records. It is wrong to suggest that I am deposing falsely in this regard. It is further wrong to suggest that I intentionally denied that the documents Ex.WW1/1 to Ex.WW1/5 which was issued to the workman during the employment...."
Gate passes Ex.WW1/1 to Ex.WW1/5 are not admitted by the management. Despite above referred depositions of MW1 Mr. Rajesh Sharma, MW1 Mr. Rajesh Sharma was not asked to consult the records of management to tell whether Mr. Praveen Kumar was employed in the management or not, or whether signatures of Mr. Praveen Kumar are there on exhibits Ex.WW1/1 to Ex.WW1/5. Also, it is pertinent to note that the gate passes Ex.WW1/1 to Ex.WW1/5 by themselves do not establish / prove that there, as such, existed relationship employer and employee between the management and workman on the dates mentioned on Ex.WW1/1 to Ex.WW1/5. These documents do not mention the complete particulars of Mr. Suresh Kumar whose name is mentioned on Ex. WW1/1 to Ex.WW1/5. It cannot be said with certainly that Ex.WW1/1 to Ex.WW1/5 pertained to workman only unless and untill complete identity particulars as that of workman are mentioned on Ex.WW1/1 to Ex.WW1/5. In the statement of - claim of workman there do not exist corresponding averments regarding gate passes Ex.WW1/1 to Ex.WW1/5. Application moved by workman for production of, inter - alia, Gate Entry (Gate Pass issue) etc. was Page 10 to 14 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 21.05.2014 Suresh Kumar Vs. M/s Richlook Garments Pvt. Ltd. DID No. 353/08 declined by this Court vide order dated 19.09.2013. Thus, gate passes Ex.WW1/1 to Ex.WW1/5 do not help the workman to discharge onus regarding this issue.
As per management, workman was recruited w.e.f. 18.07.2007 as semi - skilled workman @ Rs.3685/ per month as a temporary for a period of six months till 18.01.2008. However, workman did not report back on duty w.e.f. 01.11.2007. Management is relying upon documents Ex.WW1/M1x (colly.) (i.e. Temporary Appointment Letter dated 19.07.2007 and application for service made by workman). Workman as regards these documents Ex.WW1/M1x deposed as under: "....... At this the document Ex. WW1/M1x (colly.) is shown to the witness to which this witness refused his signatures appearing on the same at points A, B and C. However, he admitted his photograph on page 3 affixed at point A1........... It is wrong to suggest that I was given an appointment letter by the Management with full terms and service conditions. It is wrong to suggest that I duly acknowledged the receipt of the said appointment letter Ex. WW1/M1x collectively. It is wrong to suggest that I had applied vide application Ex.WW1/M1x collectively (Page 3)........".
Further, as regards depositions of workman regarding signatures on Ex. WW1/M1x following depositions of workman are noteworthy : "........ My evidence affidavit Ex.WW1/A does not bear my signatures at point A and B. My statement of claim bears my signatures at points A1 and A2 on page no. 1 and page no. 3. The same does not bear my signatures at points A3, A4, A5 and A6 on page no.2, 4, 5 and 6 of my statement of claim. It is wrong to suggest that I was temporarily appointed in the year 2007 for 6 months only by the Management.....". What is pertinent to note is that workman has even denied his signatures (i) on his evidence affidavit and (ii) at points A3, A4, A5 and A6 on pages no.2, 4, 5 Page 11 to 14 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 21.05.2014 Suresh Kumar Vs. M/s Richlook Garments Pvt. Ltd. DID No. 353/08 and 6 of his statement of claim. Obviously, workman is denying these signatures falsely / by making false depositions. Thus, possibility of his (workman) falsely denying his signatures on Ex.WW1/M1x cannot be ruled out altogether. Also, what is pertinent to observe is that signatures appearing on Ex.WW1/M1x are having some writing features as that of admitted signatures of workman.
Thus, Ex.WW1/M1x is, by applying the principle of preponderance of probabilities, held to be having the signatures of workman.
Further, workman is relying upon ESI Card Ex.WW1/8 which mention DOA (Date of Appointment) of workman as 19 - Jul - 2007 which is in consonance with the stand taken by management. Regarding ESI Card, workman in his cross examination deposed as under : "I have the copy of the ESI card Ex.WW1/8 issued in my favour by the Management. My family consists of 6 members including myself, my wife and four school going children and we all are covered under ESI scheme. I used once or twice the facilities of ESI scheme...."
Despite above depositions of workman regarding the ESI Card there is / are no pleading(s) of workman that, as a matter of fact, ESI Card Ex.WW1/8 did not mention his correct DOA (Date of Appointment). There is nothing on record to show that at any point of time workman raised an issue that ESI Card does not mention his correct DOA (Date of Appointment). In these circumstances, following depositions of MW1 Mr. Rajesh Sharma does not help the workman : ".... I do not remember as to what is the ESIC no. and EPF no. of the workman which was provided by the management on very first day of the appointment. It is correct that the management did not file ESIC and EPF record of the workman. It is wrong to suggest that the management never provided any legal facilities to the workman.....".
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In the totality of facts and circumstances of this case, preponderance of probabilities suggest that workman was appointed on 19.07.2007 as pleaded by management.
NOW, assuming, as pleaded by workman, services of workman were terminated on 11.01.2008, even that workman cannot be said to have completed one year of continuous service with the management in terms of provisions of section 25 B of the Industrial Disputes Act, 1947. As per management, workman did not report back for duty w.e.f. 01.11.2007. In view of the fact that workman did not complete one year of continuous service within the provisions of section 25 B of the Industrial Disputes Act, 1947, which is also one of the essential ingredients of section 25 F of the Industrial Disputes Act, 1947, the following depositions of MW1 Mr. Rajesh Sharma does not help the workman in any manner: "......... It is correct that after 01.11.2007 the workman never reported back to the services. It is wrong to suggest that I am deposing falsely in this regard. It is correct that the management sent a letter to the workman for calling him on duty. It is correct that the management never mentioned the date of alleged letter in its written statement nor filed the same on record. It is wrong to suggest that the management never sent any letter to the workman for calling him on duty as the workman was on duty and he was illegally terminated on 11.01.2007.....".
Issue no.2 by applying the principle of preponderance of probabilities, accordingly decided against the workman.
ISSUE No. 1 Whether the services of the workman have been illegally and unjustifiably terminated by the management ? OPW Page 13 to 14 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 21.05.2014 Suresh Kumar Vs. M/s Richlook Garments Pvt. Ltd. DID No. 353/08 In view of discussion under issue no.1 it can be said that workman has failed to prove that he worked with the management for not less than one year of continuous service, which is one of the essential requirement of section 25 F of the Industrial Disputes Act, 1947. Hence, in the present case provisions of section 25 F are not attracted and management cannot be said to have violated the provisions of section 25 F of the Industrial Disputes Act, 1947. Also, management cannot be said to have violated the provisions of 25 G of the Industrial Disputes Act, 1947 for want of necessary pleadings in this regard as well as requisite evidence required to prove violation of section 25 G of the Industrial Disputes Act, 1947. Accordingly, this issue is also decided against the workman.
ISSUE No.3: Relief In view of my findings on issue no.1 & 2, workman is held to be entitled to no relief.
9. Reference is answered accordingly.
10. Parties are to bear their own cost. A copy of the award be sent to Office of the Deputy Labour Commissioner (District West) for further necessary action.
11. File be consigned to Record Room after completing due formalities.
(Pronounced in the open court on 21.05.2014)
(Anand Swaroop Aggarwal)
POLC XI/KKD/Delhi
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