Delhi District Court
Banwari S/O. Sh. Moolchand vs M/S. Vicky Electronics on 6 February, 2015
Banwari Vs. M/s. Vicky Electronics ID No. 478/12
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI :
KARKARDOOMA COURTS : DELHI .
REFERENCE CASE (ID NO). 478/12
UNIQUE CASE IDENTIFICATION NO. 02402C0370572012
In the matter of:
Banwari s/o. Sh. Moolchand,
R/o. RC77, Rajdhani Colony,
West Patel Nagar, New Delhi110008
C/o. All India Engineering General Mazdoor Union (Regd. 2566),
E127, Karampura, New Delhi110015 ......... Workman / Claimant
Vs.
M/s. Vicky Electronics,
(through its Proprietor Mr. Hanuman Prasad Jewaria
s/o. Sh. Prabhat Ram, R/o. K74, West Patel Nagar,
New Delhi110008)
RC77, Rajsthani Colony, West Patel Nagar,
New Delhi110008 ..........Management
Date of Institution : 21.12.2012
Date of reserving for award : 28.01.2015
Date of award : 06.02.2015
AWARD :
1.TERMS OF REFERENCE Vide Order No. F3(511)12/Ref./WD/LAB/1807 dated 19/11/12 Deputy Labour Commissioner (West District), Labour Department, Government of N.C.T. Of Delhi referred following industrial dispute between workman Banwari S/o Sh. Moolchand, R/o. RC77, Rajdhani Colony, West Patel Nagar, New Delhi110008 C/o Page 1 of 12 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/06.02.2015 Banwari Vs. M/s. Vicky Electronics ID No. 478/12 All India Engineering General Mazdoor Union (Regd. 2566), E127, Karampura, New Delhi110015 and management M/s. Vicky Electronics, RC77, Rajsthani Colony, West Patel Nagar, New Delhi110008 u/s. 10(1) (c) and 12(5) of the Industrial Disputes Act, 1947 vide Govt. of NCT of Delhi Labour Department Notification No. F.1/31/616/Estt/2008/7458 dated 03.03.2009 for adjudication by this court : ''Whether the services of Sh. Banwari S/o Sh. Moolchand have been terminated illegally and/ or unjustifiably by the management; and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. CASE OF THE WORKMAN AS PLEADED IN THE STATEMENT OF CLAIM.
(i) The workman was working with the management on the post of 'Store Keeper' at the monthly salary of Rs. 12000/ per month since 20 years.
(ii) During the course of his employment, workman performed his duty honestly to the entire satisfaction of the management and during the said period, workman did not give any charge (sic chance of) complaint to the management.
(iii) ''That the management had not pay to minimum wages which was demanded by the workman time to time and also the workman demanded to provided the legal lawful facilities such as overtime wages, earned wages from the month of April, 2012 and did not pay the salary months of February, March and 22 April 2012.
Appointment letter with correct date of entry, PF, Bonus etc. but the management had not provide to the same to the workman.'' (sic)
(iv) ''That earlier the management had also terminated to workman on 22/04/2012 during the conciliation proceeding the management not take back on duty. Workman from his services without issues any charge sheet and without paying the earned wages at the Rate of minimum wages from the month of April Page 2 of 12 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/06.02.2015 Banwari Vs. M/s. Vicky Electronics ID No. 478/12 2012 and without conducted any domestic enquiry.'' (sic)
(v) The management adopted antilabour policy and against the natural justice and also the management violated the u/s. 25 (F) and (G) of the Industrial Disputes Act, 1947.
(vi) The management had taken the signature of the workman on the various blank papers and voucher at the time of workman joining the service as well during the service period but the workman put the signature on the same as he was very badly in the need of job/employment as well as in good faith of management. All the documents are with the management and there is each and every apprehension of misuse of these documents by the management at any stage.
(vii) The workman sent a demand notice through Registry AD dated 12.06.2012 but the management neither gave any reply nor reinstate to the workman.
(viii) The workman searched for the job at many place but he has not found any satisfactory job so the workman is unemployed since the date of termination.
(ix) The workman still wants to join the duty with the management with full back wages, continuity of the services and all other attendants benefits.
With these averments, workman has prayed for an award of reinstatement with the management with full back wages, continuity of service and to pay the earned wages for 22 April, 2012 (sic) in favour of workman and against the management.
3. STAND OF THE MANAGEMENT AS PLEADED IN THE WRITTEN STATEMENT OF DEFENCE.
Management in the WS, while denying the case as pleaded by workman in the statement of claim in toto, took the stand that claimant is a self claimed 'Store Keeper'. Management further pleaded that claim of the claimant is not maintainable Page 3 of 12 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/06.02.2015 Banwari Vs. M/s. Vicky Electronics ID No. 478/12 as claimant has suppressed original facts that in the demand notice sent to management claimant mentioned that claimant was getting a salary of Rs. 5000/ whereas in the claim filed in court claimant pleaded his monthly salary as Rs. 12,000/. Management further pleaded that claim of claimant is not maintainable as claimant has pleaded herein that he was getting a salary of Rs. 12,000/ and also claimed that claimant was not getting minimum wages. Management also pleaded that, ''3.............Claimant had steal management Rs. 45000/ and not given any a/c of that money.'' Further management pleaded that claimant has taken all his dues and filed a case out of greed and his criminal mind to extort money from the management. Management denied the averments of workman regarding management taking his signatures on blank papers in toto and pleaded that all the relevant documents have been stolen by claimant and management has also lodged a complaint. Management further pleaded that claim is not maintainable as now the firm in the name of M/s. Vicky Electronics was closed in September, 2012. Management denied the averments of workman regarding workman searching for job and not getting any satisfactory job and pleaded that workman did not stay for a long time in other company's jobs due to his own quarrelsome behaviour and his dishonesty. At last management prayed for dismissal of claim of claimant in interest of justice.
4. Rejoinder Workman filed rejoinder to the WS of the management denied the stand taken by the management were reaffirmed.
5. On the pleadings of the parties, following issues vide order dated 13.08.2013 were framed: (1) As per terms of reference.
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(2) Whether the management has closed its business in
September, 2012 as per the preliminary objection no. 3 of the WS?
OPM
(3) Relief.
6. EVIDENCE :
Workman appeared in the witness box as WW1 Banwari. Workmen relied upon documents: Ex. WW1/1 Complaint dated 15.06.2012 to the Asst. Labour Commissioner, Karampura; Ex. WW1/2 Report dated 07.08.2012 of Labour Inspector; Ex. WW1/3 Letter dated 12.06.2012 sent to the management by workman; Ex. WW1/4 Postal Receipt dated 02.06.2012; Ex. WW1/5 and Ex. WW1/6 AD Cards; Ex. WW1/7 Complaint dated 30.05.2012 to the Asst. Labour Commissioner, Karampura; Ex. WW1/8 Letter dated 02.06.2012 sent to the management by union; Ex. WW1/9 and Ex. WW1/10 Postal Receipts; Ex. WW1/11 AD Card; Ex. WW1/12 Proceedings dated 10.06.2012 conducted in union's office; Ex. WW1/13 Complaint made before ACP, PS Patel Nagar; Ex. WW1/14 Complaint dated 24.05.2012 made before Commissioner of Police by workman; Ex. WW1/15 Complaint made before Deputy Commissioner of Police by workman; Ex. WW1/16 Statement of claim filed before Conciliation Officer, Labour Office, Karampura, Delhi and Ex. WW1/17 ESIC Card of workman. Workman in his crossexamination was confronted with Ex. WW1/M1X Letter dated 12.06.2012 sent by workman to the managements. WE was closed on 12.03.2014 by ld. ARW.
Management examined MW1 Mr. Chunni Lal, MW2 Mr. Madan Lal and MW3 Mr. Hanuman Prasad Jewaria. Management relied upon documents Ex.MW3/1 Letter dated 30.04.2007 of ESIC sent to management; Ex.MW3/2 Certificate of Cancellation of Registration (dated 10.03.2014) under Delhi Value Page 5 of 12 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/06.02.2015 Banwari Vs. M/s. Vicky Electronics ID No. 478/12 Added Tax Act, 2004; Ex.MW3/3 Letter dated 08.05.2013 sent by management to ESIC regarding closure of unit of management; Ex.MW3/4 Letter sent by management to Deputy Director ESIC; Ex.MW3/5 Complaint dated 13.06.2012 made by management at PS Anand Parvat, Delhi and Ex.MW3/6 Proceeding Sheet dated 10.02.2014. ME was closed on 26.08.2014.
7. On 13.11.2014, ld. counsel for management moved an application under section 11 of the Industrial Disputes Act, 1974 read with section 151 of CPC alongwith photocopy of Form DVAT 06. On 27.11.2014 ld. counsel for workman submitted that he does not want to file any formal reply to this application. Ld. counsel for workman further submitted that disposal of the case has been delayed on account of late moving of this application and if application is allowed, same may be allowed subject to cost payable to workman by management. In view of submissions made by ld. counsel for workman, application was allowed subject to cost of Rs.500/ payable by management to workman. Cost was paid.
8. APPLICATION OF WORKMAN FOR SUMMONING DOCUMENTS FROM MANAGEMENT.
On 18.09.2013, workman moved an application seeking production of (a) Muster roll, wages, leave day, gate entry register since April 1992 to April 2012 of management; (b) Application and appointment letter, appointment letter issued register of all employees including workman since April 1992 to April 2012 of management and (c) ESI & PF record of employees of management since April 1992 to April 2012 of management from the management. Management replied the application vide reply filed on 04.02.2014. Vide order dated 04.02.2014 application was kept pending till the stage of conclusion of evidence of both the parties.
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However, on 28.01.2015 this application was disposed off as not pressed as submitted by ld. counsel for workman.
9. ARGUMENTS I have heard Sh. Ajit Singh Adv. for workman and Sh. Rajeev Gupta Adv. for the management and perused the material available on judicial file very carefully.
10. My ISSUE WISE findings are as under: ISSUE NO. 2:
''Whether the Management has closed its business in September, 2012 as per the preliminary objection no. 3 of the WS? OPM'' Firstly I am taking issue no. 2. As per management it has closed its business in September, 2012. In this regard reliance is being placed on oral depositions of MWs as well as documentary evidence by way of Ex. MW3/2, Ex. MW3/3 and Ex. MW3/4. In crossexamination of MW3 Mr. Hanuman Prasad veracity of these documents has not been breached/even challenged. Ex. MW3/2 shows Nil G.T.O returns since 201213 which suggest closure of management. Workman has led no evidence to disprove Ex. MW3/2, Ex. MW3/3 and Ex. MW3/4.
MW3 Mr. Hanuman Prasad Jewaria denied the suggestions given to him in his crossexamination regarding nonclosure of its business by management. MW1 Mr. Chunni Lal and MW2 Mr. Madan Lal also deposed regarding closure of its business by management w.e.f. September, 2012. MW1 Mr. Chunni Lal and MW2 Mr. Madan Lal are independent and natural witnesses being residents in the nearby vicinity of place of business of management. In his crossexamination, MW1 Mr. Chunni Lal has been made to depose that, ''............At present, premises of Page 7 of 12 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/06.02.2015 Banwari Vs. M/s. Vicky Electronics ID No. 478/12 management is lying locked and the same belongs to Mr. Hanuman Prasad..........''. Notably workman in his crossexamination deposed, ''.........It is wrong to suggest that management has closed in the year September 2012. (vol. management is still running at its previous premises.)...........''. Except oral depositions of workman, workman has led no evidence to show that management is still carrying out its business. On the basis of material available on judicial record, preponderance of probability suggest that management closed its business as pleaded in WS. Issue is decided in favour of management.
ISSUE NO. 1: As per terms of reference.
(''Whether the services of Sh. Banwari S/o Sh. Moolchand have been terminated illegally and/or unjustifiably by the management; and if so, to what relief is he entitled and what directions are necessary in this respect?") Here, as per workman, workman was working with management since last 20 years and his services were terminated illegally/unjustifiably by management on 22.04.2012. On the other hand management simply pleaded that claimant has taken all his dues and filed a case out of greed and his criminal mind to extort money from the management. Notably management did not specifically, firstly, deny the averments of workman regarding the length of his service with management and date of termination of his services and, secondly, management did not plead in the WS as to when, as per management, workman joined the management and when workman took all his dues from the management. On account of this, an adverse inference is liable to be drawn against the management and management can be said to have admitted these averments made by workman. There is no evidence at all regarding management making payment of all the dues of workman except vague averments. When the management is not having a specific defence/stand following Page 8 of 12 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/06.02.2015 Banwari Vs. M/s. Vicky Electronics ID No. 478/12 depositions of workman, which are not otherwise consistent with the stand of workman, does not materially affect the case of workman.
WW1 Mr. Banwari deposed as under: ''........Q. It is put to you that in complaint Ex. WW1/15 I have mentioned that on 22.04.2012 I had left for village and come back on 04.05.2012 my services were terminated. But today you have deposed that your services were terminated on 24.04.2012. Which of these two things is correct?
A. Contents of my complaint Ex. WW1/15 are correct. I had gone to village on 22.04.2012 and come back after 57 days..........'' Management is relying upon Form DVAT 06 to show that business of management started on 31.08.2006. Much reliance cannot be placed on this document inasmuch as management in the WS nowhere pleaded that it started its business on 31.08.2006 despite specific averment of workman that workman was working with management since last 20 years. Depositions made by MW3 Mr. Hanuman Prasad in his evidence affidavit cannot be read in favour of management inasmuch as evidence beyond pleadings is not reliable. Form DVAT 06 by itself does not show that management started its business w.e.f 31.08.2006. It at the most shows that management was registered under the Delhi Value Added Tax Act, 2004 w.e.f. 31.08.2006 and nothing more. There is no information in this document as regards start of its business by the management. Workman in his crossexamination deposed that, ''.......I have not filed any documentary proof to show that I was working with management since 1992......''. Notably even in respect of the period workman admittedly worked with management, management has not produced any documentary evidence regarding employment of workman with it. MW3 Mr. Hanuman Prasad in his crossexamination deposed that, ''........I did not give any Page 9 of 12 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/06.02.2015 Banwari Vs. M/s. Vicky Electronics ID No. 478/12 appointment letter to workman......''. This suggest that management provided no documentary evidence to workman regarding its employment with the management. In such circumstances workman cannot be asked to produce documentary evidence to show that it worked with management since 1992.
Management in the WS pleaded that workman has taken all his dues. This is absolutely vague averments of management. When workman took all his dues and what amount was paid to workman as his alleged all the dues has not even been pleaded by management in WS. Notably MW3 Mr. Hanuman Prasad in his crossexamination deposed that, ''......It is incorrect to suggest that I terminated the services of workman when workman demanded legal facilities. (vol. workman had gone to his village and fled away). I did not write any letter to workman calling him back to join his duties. No domestic inquiry was conducted against the workman......''.
The above referred voluntary depositions are inconsistent with the stand of management taken in the WS. Firstly, the stand taken in WS has not been proved on judicial file by leading cogent evidence and, secondly, MW3 Mr. Hanuman Prasad in his crossexamination made voluntary statement inconsistent with the stand taken in WS. This undoubtedly suggest that defence taken by management is not true and, thus, case as pleaded by workman deserves to be believed to be true.
The inconsistency regarding last drawn wages of workman as mentioned in statement of claim and demand notice Ex. WW1/M1X does not help the management in any manner inasmuch as the same does not go to the root of the matter regarding termination of services of workman by management in violation of provisions of section 25F of the Industrial Disputes Act, 1947.
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Admittedly management did not write any letter to workman calling upon the workman to join back his duties. Also management did not conduct any domestic enquiry against the workman. If workman had really gone to his village and fled away and management did not terminate the service of workman, management at least should have issued letter to workman calling the workman to join back his duties. But management did not do so. Management did not specifically deny service of demand notice on it. It did not reply the demand notice. As per Ex. WW1/2 management refused to reinstate the workman in service.
In view of above detailed discussion, it can be said, by applying the principle of preponderance of probabilities, that management terminated the services of workman in violation of section 25 F of the Industrial Disputes Act, 1947. However, provision of section 25G are not applicable for want of necessary pleadings. Even the necessary averments regarding applicability of section 25G are not there in the statement of claim.
NOW MERELY BECAUSE management terminated the services of workman in violation of provisions of section 25 F of the Industrial Disputes Act, 1947 does not mean that workman is entitled to be reinstated in service with management with full back wages. In view of my findings on issue no. 2, obviously, question of reinstatement of workman in service with management does not at all arises. Workman in the statement of claim pleaded that despite searching for job at many places but workman did not get satisfactory job. It means workman did find job but workman did not consider the same satisfactory. There is no explanation as to why workman did not consider the job which he found to be satisfactory. Also workman is a very experienced person and, thus, he cannot be believed to be unemployed throughout since date of termination of his services. Thus, workman is held to be Page 11 of 12 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/06.02.2015 Banwari Vs. M/s. Vicky Electronics ID No. 478/12 not entitled to full back wages.
In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the tune of Rs. 2,20,000/ (Rupees Two Lacs Twenty Thousand Only) to the workman for illegal/unjustified termination of his services by the management and for consequences thereof / back wages would meet the ends of justice. If this amount of Rs. 2,20,000/ (Rupees Two Lacs Twenty Thousand Only) is not paid to workman within one month of award coming into force management shall be liable to pay interest @ 9% per annum on this amount from the date of the award till its payment. A sum of Rs. 8,000/ (Rupees Eight Thousand only) is also awarded to workman as costs of litigation payable by the management.
ISSUE NO. 3: Relief AS ABOVE
11. Reference stands answered accordingly.
12. Copy of the award be sent to Office of the concerned Deputy Labour Commissioner for further necessary action.
13. File be consigned to Record Room after completing due formalities. (Pronounced in the open court on 06.02.2015) (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi Page 12 of 12 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/06.02.2015