Delhi District Court
Case Sukhdev Singh vs . Dda, 2012 Llr 178, Relied Upon By The on 1 December, 2012
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IN THE COURT OF SH. BHUPESH KUMAR: PRESIDING OFFICER LABOUR
COURT NO. XVI: KARKARDOOMA COURTS : DELHI
ID NO. 46/08
1.Sh. Hari Om s/o Sh. Ulfat Singh
2. Sh. Banwari Lal s/o Sh. Ulfat Singh C/o Shramjeevi Vikas Union (regd.) C7, Khajan Basti, Nangalraya, New Delhi46. ...... workmen VERSUS M/s Ashwani Saree Pvt. Ltd.
Through : Sh. Ashwani Kumar Chawla nd 1037, 2 floor, Kucha Natwa, Chandni Chowk, Delhi110006. ...... Management Date of Institution : 23.02.08 Judgment reserved : 01.12.12 Date of decision : 01.12.12 A W A R D
1. The National Capital Territory of Delhi, through its Secretary (Labour) vide reference no. F24/(1537)/06/Lab./81721 dated 28.01.08 referred the dispute for ID No.46/08 1/11 2 adjudication between the Management M/s Ashwani Saree Pvt. Ltd. and its workmen Sh. Hari Om and Sh. Banwari Lal in the following terms of reference:
"Whether the services of Sh. Hari Om s/o Sh Ulfat Singh and Sh. Banwari Lal s/o Sh. Ulfat Singh have been terminated illegally and/or unjustifiably terminated by the management; and if yes, to what relief are they entitled?"
2. Statement of claim filed by the workmen wherein it has been submitted that workmen Hari Om and Banwari Lal were working with the management as Counter Salesman since February 1980 and March 1981 respectively. Their last drawn wages were Rs. 6,000/ per month. Earlier, the management was running its business activities under the name and style of M/s Ashwani Kumar & Co. at 1045, Kucha Natwa, Chandni Chowk, Delhi6. In the year 2001, the management changed its name and address as mentioned in the title of the case. Management has not provided any appointment letter, attendance card, ESIC, PF, overtime wages, bonus, minimum wages to the workmen. On repeated demands by the workmen, management provided the facilities of PF and ESIC to them in the year 2001 i.e. after 2324 years of employment. Thereafter, on repeated demands of other facilities by the workmen, management got annoyed and stopped paying the earned wages to the workmen. Management also obtained signatures of the workmen on some blank papers and vouchers and terminated their services on 22.03.06 without issuing any notice, notice pay, retrenchment compensation and also without giving their ID No.46/08 2/11 3 earned wages w.e.f. 01.02.06 to 22.03.06. After their illegal termination, workmen sent a legal demand notice on 24.03.06 through registered AD and UPC demanding their job again. Despite service, the same was not replied by the management. Workmen also filed their claim before Conciliation Officer. Management appeared in the proceedings and filed its false and vague reply and due to their adamant behaviour, conciliation proceedings were failed. Workmen are unemployed since the date of their illegal termination. The prayer has been made by the workmen for reinstatement with back wages from the date of their termination along with all other consequential benefits.
2. Notice of the claim was issued to the management. Management has contested the claim by filing WS and took the preliminary objection that the management has not terminated the services of the workmen. Workman Hari Om started absenting from duties w.e.f. 17.02.06 and workman Banwari Lal from 16.03.06. Both of them have not joined duties inspte of the letters dated 21.02.06, 18.03.06, 22.04.06 and 30.06.06.
On merits, it has been submitted that the workman Hari Om joined the management as Palledar on 01.02.03 and workman Banwari Lal w.e.f. 01.03.03 as Palledar. The monthly remuneration of the workmen were Rs. 3300/. Initially, M/s Ashwani Kumar & co. was a partnership firm which was subsequently converted into Private Ltd. Company as M/s Ashwani Saree Pvt. Ltd. Appointment letters were issued to the workmen and the facilities of ESI and PF were also provided to them from the respective dates of their ID No.46/08 3/11 4 appointment. It has been denied that the management withheld the earned wages of the workmen w.e.f. 01.02.06 to 22.03.06. It has been submitted that the workman Hari Om worked till 16.02.06 and Banwari Lal till 15.03.06 and the wages for the said period have not been collected by them as they did not turn up to join their duties thereafter. It has been further submitted that the workmen demanded increase in wages. The management did not agree to increase their wages as they were being paid much more than the prescribed minimum wages. Due to disagreement to give increase in wages, workman Hari Om started remaining absent w.e.f. 17.02.06 and workman Banwari Lal w.e.f. 16.03.06. The management received the demand notice dt. 24.03.06 of the workmen and sent its reply on 22.04.06 requiring the workmen to join their duties. But the workmen did not join their duties. On the basis of these submission, prayer has been made to dismiss the claim.
3. Rejoinder was filed to statement of claim of the workmen wherein the contents of the WS were generally denied and the contents of the claim were reiterated and reaffirmed.
4. On the basis of the pleadings of the parties, following issues were framed on 28.08.09 by my Ld. Predecessor Court :
i) Whether the workman has abandoned the services of the management of his own?
ID No.46/08 4/11
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ii) As per terms of reference.
5. The workman Hari Om appeared in the witness box as WW1 and led his evidence by way of affidavit Ex. WW1/A. The witness has deposed on the similar lines to that of contents of his claim and has further brought on record the documents Ex. WW1/ 1 to Ex. WW1/ 4 During cross examination, workman deposed to the effect that his ESI contribution was being deducted from his salary. He did not have any proof that prior to 01.02.03 he was getting salary from the management or his ESI was being deducted. He admitted to be correct that the date of appointment has been mentioned as 01.02.03 in Ex. WW1/ 4. In February 2006, he demanded increase in salary from the management but the management refused to increase the salary. The suggestion was denied by him that he started remaining absent from duty w.e.f. 17.02.06.
Workman Banwari Lal appeared in the witness box as WW2 and led his evidence by way of affidavit Ex. WW2/A. The witness has deposed on the similar lines to that of contents of his claim and has further brought on record the documents Ex. WW1/ 1 to Ex. WW1/ 3 and Ex. WW2/1 During cross examination, workman deposed to the effect that his ESI contribution was being deducted from his salary. He did not have any proof that prior to 01.03.03 he was getting salary from the management or his ESI was being deducted. He admitted to be correct that the date of appointment has ID No.46/08 5/11 6 been mentioned as 01.03.03 in Ex. WW2/ 1. In February 2006, he demanded increase in salary from the management but the management refused to increase the salary. The suggestion was denied by him that he started remaining absent from duty w.e.f. 16.03.06.
WE closed.
6. On behalf of the management, Sh. Rajesh Sharma, Manager (HR) was examined as MW1. This witness has led his evidence by way of affidavit as Ex. MW1/A. He has deposed on the similar lines to that of his WS and got exhibited the documents. Ex.MW1/1 is a resolution dt.20.09.11, Ex. MW1/1A is a copy of factory licence, Ex. MW1/1B is certificate of incorporation, Ex. MW1/2 to Ex. MW1/8 are the letters sent to workers, Ex. MW1/9 to MW1/12 are the Postal receipts, Ex. MW1/13 WS filed before Concilliation Officer, Ex.MW1/14 WS filed before authority under Delhi Shops & Establishment Act, Ex. MW1/15 to MW1/36 are letters sent to workers, Ex.MW1/37 to MW1/47 are postal receipt, Ex. MW1/48 is reply dt.22.04.06, Ex.MW1/49 is postal receipt.
During cross examination, he deposed to the effect that he joined the management on 01.01.10. Appointment letters were issued to the workers in the present matter but he had not placed on record any copy of the same. He was not an employee of management in November 2005 to June 2006. The suggestion was denied by him that the UPC receipts are manipulated and forged one in connivance with the officials of postal department. The management establishment is situated at Patparganj and not at Chandni Chowk. He admitted ID No.46/08 6/11 7 to be correct that all the postal receipts were issued from the post office of Malka Ganj. He has no knowledge if there is any post office in the vicinity of Patparganj. He denied the suggestion that none of the letters were ever issued to the workmen and the same were forged simply to file in the present matter. He admitted it to be correct that the facility of ESI and PF was not available with M/s Ashwani Kumar & Co. The record of the employees used to maintain in Ashwani Kumar & Co.
7. AR for management has advance verbal arguments on the other hand written submissions were filed on behalf of the Management. My issuewise findings are as under: ISSUE NO. 1 :
Whether the workman has abandoned the services of the management of his own?
8. AR for workman has submitted that the Workmen have never left their services with the Management at their own but were illegally terminated by the Management. It has been further submitted that the Management has taken wrong plea that the Management has written letters to Workmen calling upon both of them to join the duties again. On this score, it has been submitted that the documents viz. Letters and UPCs broguht on record by the Management are forged and fabricated documents because the Management is situated in Paharganj, whereas, the UPC shows that the letters were posted from the post office of Malka Ganj. There is no explanation that why the letters ID No.46/08 7/11 8 were posted from Malkaganj post office. This act of the Management further transpires that the letters were never posted to the Workmen. On the basis of these submission it has been submitted that the Workmen were terminated illegally.
9. On the other hand, it has been submitted on behalf of the Management that the Workmen had been forcing the Management to enhance their salary but when the Management refused on the ground that they have already been paid minimum wages, the Workmen left their services at their own. The Management has issued numbers of letters calling upon the Workmen to join the duties but despite the service, the Workmen have not joined their duties which shows that the Workmen have left the services at their own.
10. Heard. Material perused.
As per workmen, they were terminated by the Management on 22.3.06. On 24.3.06, the demand notice was issued to the Management by the Workmen through the union. Thereafter, the Workman filed statement of claim before conciliation officer and the Management appeared before conciliation officer and filed vague reply.
On the other hand, the Management in the written statement in unmistakable terms has stated that it has received the demand notice from the Workman and the same was duly replied, wherein, the Workmen were called upon to join the duties. It has been further submitted that in the reply to the ID No.46/08 8/11 9 claim of the Workmen before conciliation officer, they again asked the Workman to join duties.
The replication to the written statement was filed but there is no specific denial of the fact that in reply to demand notice and in the reply the Management has not called upon the Workmen to join the duties.
In respect of the letters Ex. WW1/2 to 47, it is found that the said letters were issued through UPC. As per the Workmen, the Management is situated at Paharganj whereas the said letters were posted from Malkaganj Post Office. During cross examnation of MW1, explanation in respect of this fact was called from this witness who has stated to the effect that the letters were posted from Malkaganj as the office of the M.D. of Management is in the area of Kamla Nagar where he used to meet their counsel. This fact has not been controverted further which justify posting of letters from Malkaganj. Moreover, it makes no difference if the Management opted to post the letters from the another post office and not from the post office where the Management is situated. The fact, the Court is required to consider whether the letters were actually posted or not.
The Workmen further contended that the letters are forged and fabricated but has not explained that under what circumstances he claimed that the letters to be forged and fabricated. The Workmen have not brought on record any cogent material in this regard, except from mere suggestions. However, it is well settled law of land that putting mere suggestion is of no consequences in the absence of any cogent material.
ID No.46/08 9/11
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11. The Workmen have not disputed their address on the UPC. Further, the Workmen at any stretch of proceedings have not denied the receipt of letters.
The chain of events shows that from the very inception the Workmen tried to escape from justifying their act of not joining the duties. The first such incident is the reply of the Management to demand notice calling upon the Workmen to join duties, then in reply to the claim before conciliation officer, then on receipt of numbers of letters. The Workmen have absolutely failed to justify that why they have not joined the Management, if they were called upon by the Management time and again. I have gone through the judgment in case Sukhdev Singh vs. DDA, 2012 LLR 178, relied upon by the Management and found that the findings of judgment are squarely applicable on the facts of the instant case.
12. In the light of above discussions and the judgment, the conduct of the Workmen reveal that they were not interested to carry on with job of Management and that is why they had not joined the Management even they had been repeatedly called upon by the Management to join the duties. Accordingly, it is hold that the Workmen have abandoned the services of Management at their own. Issue stands decided in favor of the Management and against the Workmen.
13. ISSUE NO. 2 :
ID No.46/08 10/11
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"Whether the services of Sh. Hari Om s/o Sh Ulfat Singh and Sh. Banwari Lal s/o Sh. Ulfat Singh have been terminated illegally and/or unjustifiably terminated by the management; and if yes, to what relief are they entitled?"
Once it is held that the Workmen have volunteered left their job, there is no question of any illegal/unjustified termination of Workmen by the Management. Therefore, the Workmen are not entitled for any other benefit, as claimed. This issue also stands decided in favor of the Management and against the Workmen. The claim stands dismissed, accordingly.
14. Award has been passed. File be consigned to Record Room after necessary compliance by Ahlmad.
Announced in the Open Court (BHUPESH KUMAR)
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on 1 December, 2012 Additional District & Session Judge
Presiding Officer Labour Court XVI
Karkardooma Courts : Delhi.
ID No.46/08 11/11