Delhi District Court
December vs Project And on 28 July, 2010
IN THE COURT OF DR. T. R. NAVAL ADDITIONAL DISTRICT &
SESSIONS JUDGE / PRESIDING OFFICER LABOUR COURT
KARKARDOOMA COURTS, DELHI.
DID NO.238/10 (New) 90/06 (Old)
Date of Institution : 31.03.2006
Date of Arguments: 21.07.2010
Date of Award : 28.07.2010
IN THE MATTER BETWEEN:
Sh. Laxman
s/o Sh. Sohan Lal
C/o General Mazdoor Trade Union(Regd.),
Giri Nagar, Kalkaji,
New Delhi 110 019.
The workman
AND
(i) M/s N.L.Garments,
357/22, Navi Complex,
Jakir Nagar, PS New Friends Colony,
New Delhi - 110 065.
(ii) M/s Chinar India Pvt. Ltd.,
G18, Maharani Bagh,
New Delhi - 110 065.
The managements
DID No.238/10 1 of 17
A W A R D
This award will dispose of a statement of claim dated
31.03.2006 directly filed by the workman in the court under the
Industrial Disputes Act, 1947, here in after referred to as the Act.
2. The facts in brief of the workman case are that the
workman had been working with the management as Tailor since
17.05.1996 with honesty and to the satisfaction of the management.
His last drawn salary was Rs.2400/ per month. He was appointed on
17.05.1996 by the management No. 2 M/s Chinar India Pvt. Ltd. After
sometime his services were transferred from the management No. 2
to M/s Kala Fabs. After sometime, the management utilized his
services with M/s N.L.Garments without issuing any transfer letter.
Although the workman did not give any chance of complaint and his
work and conduct was satisfactory, yet the management was not
providing any legal facility to the workman such as appointment letter,
identity card, weekly and festival leave, overtime, bonus, ESI, PF,
etc. Besides, he was not being paid minimum wages as fixed by the
Delhi Govt. from time to time. Moreover, he used to work for 12 hours
but the management used to pay him wages only for 8 hours. When
the workman started demanding legal facilities repeatedly, the
management got annoyed and terminated his services on 12.11.2005
DID No.238/10 2 of 17
without paying his wages for the period of 01.11.2005 to 12.11.2005
and issuing any charge sheet, notice and without conducting any
enquiry. As his services were terminated illegally, therefore, he sent a
complaint to the Labour Department. Labour Inspector visited the
management but the management refused to reinstate him in service.
The workman sent a demand notice dated 16.12.2005 to the
management vide registered AD & UPC. The management neither
sent its reply nor reinstated him in service. Therefore, he filed his
statement of claim directly before this court. He has been without
employment since the date of termination of his services. The
management obtained his signatures on many blank papers,
vouchers at the time of his appointment and the management may
misuse those papers. The workman prayed for passing an award in
his favour directing the managements for his reinstatement in service
with full backwages and continuity in service alongwith all the other
consequential benefits and also to pay legal dues of the workman
since the date of termination of his services.
3. The management No. 1 admitted that the workman came
to work in the month of February and March, 2000 and did not come
for duty for about three months and he again resumed his services in
the month of July, 2000 and left in November, 2000. He again came
on 10.04.2001 and worked upto 25.06.2001. Thereafter, he came in
DID No.238/10 3 of 17
December, 2002 and left on 07.04.2002. The management contested
his case on the ground that he did not work continuously with the
management. The workman worked only for 16 days in the month of
May, 2005; 7 days in the month of July, 2005; 5 days in the month of
August, 2005; 11 days in September, 2005; 9 days in October, 2005;
and 4 days in November, 2005. There was no administrative control
of respondent No. 1 over the work of the workman. The management
denied all other allegations made in the statement of claim and
prayed for dismissal of the statement of claim.
4. The management No. 2 contested his case on the
ground that there was no relationship of employer and employee
between the management No. 2 and the claimant. The management
No. 2 denied all the allegations made in the statement of claim and
prayed for dismissal of the statement of claim.
5. The workman in his rejoinders controverted the
contentions made in the WS and reply of the Management no.1 and
the Management No.2 and reiterated the averments made in the
statement of claim.
6. On the pleadings of the parties, following issues were
framed by my Ld. Predecessor:
DID No.238/10 4 of 17
1. Whether there exists any relationship of
employer and employee between the
claimant and M/s. Chinar India Pvt. Ltd.
2. Whether the claimant is a workman within the
meaning of Section 2(s) of the I.D.Act and had
taken his dues on 12.11.2005 - OPM1?
3. Whether services of the workman have been
terminated illegally and unjustifiably?
7. In support of his case the workman examined himself as
WW1. He proved his affidavit as Ex. WW1/A and placed reliance on
documents Ex. WW1/1 to Ex. WW1/8.
In order to prove its case, the management examined
Shri R.S.Solanki, Manager as MW1. He also filed and proved his
affidavit as Ex.MW1/A. Sh. Nehru Lal, Proprietor of the management
was examined as MW2 who filed his affidavit and proved the same
as Ex.MW2/A.
8. I have heard the arguments addressed by Authorised
Representatives of both the parties and perused the file including
written arguments filed by parties.
9. On perusal of the pleadings of the parties, analysing
evidence and material placed on record and considering the
arguments addressed by Authorised Representatives for the parties, I
have formed my opinions on the issues and that are discussed here
DID No.238/10 5 of 17
in below issuewise:
FINDINGS ON ISSUE NO. 1
10. The burden to prove this issue was on the workman and
he had to prove that there existed any relationship of employer and
employee between the workman and M/s. Chinar India Pvt. Ltd.
Although in his affidavit Ex.WW1/A, WW1 stated that he was
appointed on 17.05.1996 in the management of M/s. Chinar India
Pvt. Ltd., G18, Maharani Bagh, New Delhi65, and thereafter his
services were transferred to other management M/s N.L. Garments,
yet he has entirely deposed differently in his statement. In cross
examination for Management No. 2, i.e. M/s. Chinar India Pvt. Ltd.,
he deposed that he did not submit any application for employment to
M/s. Chinar India Pvt. Ltd. The management did not issue any
appointment letter to him. He did not have any documentary proof to
show that he was employed by the management. He also admitted
that he sent a demand notice dated 16.11.2005 only to M/s.
N.L.Garments. He also admitted that he worked as helper, i.e.
Beldar on casual basis and was getting Rs.100/ per day as and
when he got the work. He also admitted that he did not have any
proof to show that he made any representation to demand legal
facilities.
DID No.238/10 6 of 17
11. MW1 who was manager of management No. 2 M/s.
Chinar India Pvt. Ltd., proved his affidavit as Ex.MW1/A. In his
statement, he deposed that there was no relationship of master and
servant between the claimant and the management. Nothing in cross
examination could come out which could establish the relationship of
employer and employee between the workman and respondent No.
2. MW1 also denied the suggestion that management No.1 was
sister concern of management No. 2.
12. MW2 who was proprietor of management No.1, proved
his affidavit as Ex.MW2/A and deposed in his affidavit that
management of M/s. N.L.Garments was started in 1999. The
claimant came to work with it in February, 2000 and he was working
intermittently for some period mentioned in his affidavit.
13. I have also examined the documents produced by the
workman. Ex.WW1/1 is a complaint dated 16.11.2005 made by the
Union to the Assistant Labour Commissioner; Ex. WW1/2 is demand
notice dated 16.11.2005 addressed to Management No. 1;
Ex.WW1/3 is postal receipt; Ex.WW1/4 is UPC; Ex.WW1/5 is AD card
of management No. 1; Ex.WW1/6 to Ex.WW1/8 are photostat copies
of I.O.U. slips of M/s. N.L.Garments. All these documents were
written either by the office bearer of the union of the workman or the
DID No.238/10 7 of 17
postal authorities. None of the documents has established that there
was any relationship of any kind or relationship of employer and
employee between the Management No. 2 and Sh. Laxman
workman.
14. It has been pleaded in the written arguments filed by
Authorized Representative of the workman that it was the duty of the
management to produce all the documents, i.e. attendance register
and other documents of the relevant period. On perusal of the file, I
find that the workman never sent any notice to the management No.
2 either to produce the document before this court and he never
made any application before this court to seek directions for the
management No. 2 to produce above mentioned documents. In these
circumstances, no adverse inference can be drawn against the
management No. 2 for not producing of such documents.
In view of the reasons, discussion and evidence on
record and particularly discussed here in above, I come to the
conclusion that the workman could not prove on record that there
was relationship of employer and employee between him and M/s
Chinar India Pvt. Ltd. Thus, issue no.1 is decided in favour of the
management No. 2 and against the workman.
DID No.238/10 8 of 17
FINDINGS ON ISSUE NO. 2
15. The burden to prove this issue was on the management
No. 1. It had to prove that workman Sh. Laxman is not covered under
the definition of 'workman' as mentioned u/s 2(s) of the Act, besides,
he had taken his full and final dues from the management on
12.11.2005. As regards the plea of the management that he is not
covered under the definition of workman as given u/s 2(s) of the Act,
is concerned, I find that it has been pleaded in this regard that
workman was not within administrative control of the management
No. 1. Therefore, he was not a workman. The same fact has been
reproduced in the affidavit Ex.MW2/A of MW2.
16. Section 2(s) of the Act provides that:
"2.Definitions.***
[(s) "workman" means any person (including an apprentice)
employed in any industry to do any manual, unskilled, skilled,
technical, operational, clerical or supervisory work for hire or
reward, whether the terms of employment be express or
implied, and for the purposes of any proceeding under this Act
in relation to an industrial dispute, includes any such person
who has been dismissed, discharged or retrenched in
connection with, or as a consequence of, that dispute, or whose
dismissal, discharge or retrenchment has led to that dispute,
but does not include any such person
(i) ***
(ii)***
(iii)who is employed mainly in a managerial or administrative
capacity, or
DID No.238/10 9 of 17
(iv)who, being employed in a supervisory capacity, draws
wages exceeding one thousand six hundred rupees per
mensem or exercises, either by the nature of the duties
attached to the office or by reason of the powers vested in
him, functions mainly of a managerial nature.]"
17. If these provisions are applied on the facts of the present
case then even on the basis of admitted facts mentioned in the
pleadings, it has been established that Sh. Laxman is covered under
the definition of 'workman'. Moreover, nothing has been established
in the testimonies of WW1, MW1 and MW2, on the basis of which it
can be held that Sh. Laxman is not covered under the definition of
'workman' as mentioned in Section 2(s) of the Act. Therefore, this
part of the issue is decided in favour of the workman and against the
management.
18. Let us now, see whether the workman has taken his full
and final dues from the management No. 1 on 12.11.2005? MW2,
who is manager of Management No. 1 in his affidavit Ex.MW2/A has
deposed that workman has taken his full and final dues on
12.11.2005. He also deposed that he was not performing his duties
continuously but he was working intermittently. In cross examination,
he denied the suggestion that he was a regular employee of
management No. 1 or he was being paid monthly wages. He was
working at piece rate basis and he used to be paid his dues as and
DID No.238/10 10 of 17
when he required. Ex.WW1/M1 to Ex.WW1/M7 were filled in by
Pattern Master. However, he admitted that workman did not give any
letter in writing asking for his full and final payment on 12.11.2005.
He further admitted that except these documents, he did not have
any other document to show that he had taken his full and final dues.
I have perused the documents Ex.WW1/M1 to Ex.WW1/M7. These
documents are the photostat copies of Stitchers PCS Rate Cards
showing the work done by Sh. Laxman and the payment received by
him. None of these documents has established that he either made
any request to the management No. 1 to settle his accounts and to
receive his full and final dues from the management No. 1. WW1 was
cross examined at length on behalf of both the managements. He
denied the suggestion that he had taken his full and final dues from
M/s N.L.Garments on 12.11.2005. Thus, on the basis of evidence on
record, it could not be established that the workman Sh. Laxman had
taken his full and final dues from the management on 12.11.2005.
Therefore, this part of the issue is decided in favour of the workman
and against the management.
FINDINGS ON ISSUE NO. 3
19. The burden to prove this issue was on the workman and
he had to prove that he had been working with the managements for
a continuous period of more than 240 days in a calendar year
DID No.238/10 11 of 17
preceding the alleged date of termination. As mentioned above, it has
already been held under issue No. 1 that there was no relationship of
employer and employee between the workman and M/s Chinar India
Pvt. Ltd./management No. 2. Now, it has to be seen whether the
workman had been working with the management No. 1 continuously
for a period of 240 days in one calendar year preceding the date of
his termination. MW2 in his affidavit Ex.MW1/A has mentioned that
workman joined the management No. 1 in February, 2000. He
worked in the month of February and March, 2000 and thereafter he
did not come to work. He resumed his duties again for three months,
in the month of July, 2000 and left in November, 2000. He again
resumed his duties on 10.04.2001 and worked upto 25.06.2001.
Thereafter, he again resumed his duties in December, 2001 and left
on 07.04.2002. He worked for 16 days in the month of May, 2005; 7
days in the month of July, 2005; 5 days in the month of August, 2005,
11 days in the month of September, 2005, 9 days in the month of
October, 2005 and 4 days in the month of November, 2005. Payment
of these days were given to him. Thus, as per testimony of MW2, the
workman had been working with the management intermittently
during the period from 1999 till November, 2005. WW1 proved his
affidavit as Ex.WW1/A and also placed reliance on some documents.
WW1/1 is copy of complaint dated 16.11.2005 written by General
Secretary of the Union to the Assistant Labour Commissioner
DID No.238/10 12 of 17
regarding termination of services of the workman Sh. Laxman on
12.11.2005; Ex.WW1/2 is copy of demand notice dated 16.11.2005
sent by the workman Sh. Laxman to the management No. 1;
Ex.WW1/3 is postal receipt; Ex.WW1/4 is UPC; and Ex.WW1/5 is
acknowledgment card duly signed for and on behalf of the
management No. 1. WW1 in his cross examination admitted that he
did not have any document or proof regarding length of his service or
to show that he had been working with the management for 240 days
or more. However, he denied the suggestion that he took full and
final dues from M/s N.L.Garments. It is not a case of the
management that after receipt of notice, the management No. 1
either allowed the workman to resume his duties or called him to
work as he was previously working or assigned any job to the
workman as it was being assigned prior to 12.11.2005. It is also not a
case of the management No. 1 that workman committed any
misconduct or his work was not satisfactory or management No. 1
issued any memo, chargesheet or notice. Besides, the management
only filed several documents regarding his working. Ex.WW1/M1
pertains to the work in the month of May, 2005. Ex.WW1/M2
pertains to the work in the month of June, 2005, Ex.WW1/M4
pertains to the work in the month of August, 2005, Ex.WW1/M5
pertains to the work in the month of Sept.,2005, Ex.WW1/M6
pertains to the work in the month of October, 2005 and Ex.WW1/M7
DID No.238/10 13 of 17
pertains to the work in the month of April, 2005. Management did not
place any document of such kind of his working during the year 1999
onwards till 2004. In spite of his admission that he had been working
with it during these years. In view of the admission of the facts of
working of the workman with the management No. 1, the burden of
proof shifted on the management to rebut this fact by placing on
record all the documents showing that in fact, the workman never
completed 240 days in any calendar year. Therefore, the adverse
inference has to be drawn u/s 114(g) of Indian Evidence Act to the
effect that management did not file the record as it was in favour of
the workman and against the management No. 1.
In view of the above reasons, discussion and evidence
on record and particularly discussed here in above, It is held in these
circumstances that denial of work to workman amounted to
termination of his services illegally and unjustifiably. Accordingly, this
issue is decided in favour of the workman and against the
management No. 1.
20. In case of Kishan Swaroop Vs. Project and
Equipment Corporation of India Ltd., MANU/DE/30/10/2007 it was
held by Delhi High Court that in each and every case of illegal and
unjustified termination of services, the relief of reinstatement and full
back wages is not to be granted automatically and the Labour Court
DID No.238/10 14 of 17
can mould the relief by granting lump sum compensation in lieu
thereof.
21. In case of Allahabad Jal Sansthan v. Daya Shankar
Rai,(2005) 5 SCC 124, it was held that:
"6. A law in absolute terms cannot be laid down as to in which
cases, and under what circumstances, full back wages can be
granted or denied. The Labour Court and/or Industrial Tribunal
before which industrial dispute has been raised, would be
entitled to grant the relief having regard to the facts and
circumstances of each case. For the said purpose, several
factors are required to be taken into consideration".
22. In case of Hindustan Tin Works (P) Ltd. v. Employees
(1979) 2 SCC 80 a threeJudge Bench of Apex Court observed:
"11. In the very nature of things there cannot be a straitjacket
formula for awarding relief of back wages. All relevant
considerations will enter the verdict. More or less, it would be a
motion addressed to the discretion of the Tribunal. Full back
wages would be the normal rule and the party objecting to it
must establish the circumstances necessitating departure. At
that stage the Tribunal will exercise its discretion keeping in
view all the relevant circumstances. But the discretion must be
exercised in a judicial and judicious manner. The reason for
exercising discretion must be cogent and convincing and must
appear on the face of the record. When it is said that
something is to be done within the discretion of the authority,
that something is to be done according to the rules of reason
and justice, according to law and not humour. It is not to be
arbitrary, vague and fanciful but legal and regular***"
DID No.238/10 15 of 17
ORDER:RELIEF
23. Consequent upon decision of issue No. 1 in favour of the management No.2 and against the workman and decisions of issues Nos. 2 & 3 in favour of the workman and against the management No. 1, it is held that there was no relationship of employer and employee between the workman and M/s Chinar India Pvt. Ltd., management No. 2. Therefore, the workman is not entitled to get any relief against the management No. 2. It is further held that the workman has succeeded in proving that the management No.1 terminated his services not only illegally but also unjustifiably in as much as his services were terminated in violation of provisions of Section 25F of the Act and principles of natural justice.
24. As the workman has suffered legal injury due to illegal action of the management therefore, considering all the facts and circumstances of the case, I am of the view that it would be just, fair and appropriate if a compensation of Rs.50,000/ is awarded in favour of the workman and against the management No. 1 in lieu of his reinstatement in service and back wages. It is further ordered that if the amount of compensation is not paid to the workman within 30 days from the date of publication of this award, then workman will also be entitled to the future interest @ 8% from the date of award till the realization of the said amount.
DID No.238/10 16 of 17
25. Copy of award be sent to Secretary Labour, Govt. of NCT, Delhi for publication as per rules.
File be consigned to record room.
Announced in the Open Court on 28th July, 2010.
(DR. T. R. NAVAL) Additional District & Sessions Judge Presiding Officer, Labour Court, Karkardooma Courts, Delhi.
DID No.238/10 17 of 17