Delhi District Court
The vs The on 11 April, 2008
COURT OF MS. SUJATA KOHLI
PRESIDING OFFICER LABOUR COURT II,
ROOM NO. 48, KARKARDOOMA COURTS, DELHI
I.D. No. : 28/02
Date of Institution of the case : 09/02/02
Date on which Judgment was reserved : 15/02/08
Date on which Judgment was pronounced : 11/04/08
B E T W E E N
The Workman, Smt. Maya W/o Sh. Ashok Kumar C/o General
Mazdoor Lal Jhanda Union, 1/11B, Pahwa Mension, Asaf Ali
Road, New Delhi.
A N D
The Management, M/s C.L. Bhalla Dayanand Model School,
Jhandewalan, Karol Bagh, New Delhi.
A W A R D
1.Reference was sent by Sh. Narendra Kumar, Secretary Labour, Government of NCT, Delhi on 17/01/02 vide reference No. F.24 (3494)/2001Lab./156468 pertaining to an Industrial Dispute between the management of M/s C.L. Bhalla Dayanand Model School and its workman Smt. Maya, in the following terms of reference: "Whether the services of Smt. Maya W/o Sh. Ashok Kumar have been terminated illegally and/or unjustifiably by the management, and if so, to what sum of money as monetary relief along with consequential benefit in terms of existing laws/Government notification and to what other relief is she entitled and what directions are necessary in this respect?".
2. Pursuant to the reference, claim was filed by the workman stating therein that she was employed with the management as Sweeper for the last 14 years and was getting salary of Rs. 2000/ per month as her last drawn salary at the time of her illegal termination on 13/07/98.
3. Workman claims to have worked sincerely and diligently with dedication for the management, never giving any chance of complaint. However, she alleges that management was not providing the legal benefits and facilities and other labour law such as issuance of appointment letter, maintenance of attendance register, bonus, PF etc. for which the workman demanded orally from time to time but except mere assurances, management never provided the facilities.
4. She also mentions that her attendance used to be marked on a rough register. On account of persistence of the workman with her demands, management became annoyed and with a vindictive attitude they terminated her service on 15/07/98. No notice was issued to her nor any notice pay was paid. No charge sheet or show cause notice was issued to her. No enquiry was held. No retrenchment compensation was paid and even the earned wages for the 15 days of July 1998 were withheld.
5. Action of the management in terminating her service is alleged to be illegal, antilabour and being violative of principles of natural justice. Workman further alleges in para 6 of her claim that the management also struck off the name of her daughter from the school at which the workman along with her husband approached the principal of the school, but management in turn leveled false and baseless allegations against the husband of the workman having misbehaved with the principal of the school in a drunken state.
6. Workman approached the management thereafter repeatedly for taking her back to duty, but to no avail. She lodged a complaint with the labour department on 29/05/01 for redressal of her grievance, pursuant to which labour inspector Sh. Maha Singh visited the establishment of the management, but management refused to take back the workman on duty even then and labour inspector gave his report accordingly on 05/09/01.
7. On 26/06/01, workman also sent a demand notice to the management through her union which was duly received by the management, but inspite of the same, management failed to respond to the same.
8. The conciliation proceedings were also initiated before the labour conciliation officer but the same also failed due to adamant and antilabour attitude of the management and ultimately dispute was referred to court for adjudication.
9. Workman claims to be unemployed ever since the illegal termination of her service, inspite of best efforts to obtain an alternative job. Workman claims to be entitled to reinstatement with continuity of service as well as full back wages and she has prayed accordingly.
10. Management, in their W/s, has raised preliminary objections mainly being that claimant was never an employee of the school and as such there was no relationship of employeremployee between the parties. It has been elaborated that claimant was never employed as a Sweeper or at any other post for that matter in the school. All the complaints lodged by the workman are alleged to be false and baseless as per the management.
11. It is further stated that management school is a recognized school maintaining all requisite records in respect of all its teaching and nonteaching staff. It is further elaborated that there is only one post of Sweeper in the school against which one Smt. Dayawati has been working as a regular employee and she has been paid salary and other statutory benefits as per law. There was no need to employee any other Sweeper or Safaikaramchari in the school. Further, it is stated that since claimant was never an employee of the school, there is no question of having terminated her service.
12. In reply on merits also, since the very relationship of employer employee has been denied, rest of the allegations made in the claim also stand denied as a consequence. Management alleges the claim of the workman to be false and baseless and prays for its dismissal.
13. In her rejoinder filed by the workman, she has denied the version of the management and has reiterated the contents of the claim as being true and correct.
14. On the basis of the pleadings, following issues were framed by my Ld. Predecessor on 03/04/2003: (1) Whether there exists relationship of employer and employee between the parties?
(2) To what relief, if any, is the claimant/workman entitled from the management in terms of this reference?
15. During evidence, workmen examined herself as WW1 on her affidavit Ex. WW1/A and besides she tendered the following documents in evidence:
1. Copy of application dated 04/08/91 addressed to Shishu Palan Kendra, Ex. WW1/1 (objected to).
2. Copy of fee receipt dated 19/02/98, Ex. WW1/2.
3. Fee receipt dated 19/02/98 in the name of Pooja D/o workman, Ex. WW1/3.
4. Progress report of Arti D/o workman, Ex. WW1/4.
5. Progress report of Pooja, Ex. WW1/5.
6. Report of Labour Inspector, Ex. WW1/6.
7. Copy of demand notice, Ex. WW1/7.
8. Report of conciliation officer dated 23/10/01, Ex. WW1/8.
16. Workman also examined Sh. Bhim Singh as WW2, Sh. Mukesh as WW3 and Sh. Subhash Chand Arora as WW4 who were examined orally.
17. WW2 tendered copy of his ICard, Ex. WW2/1. WW3 tendered the certificate as well as his own progress report is Ex. WW3/1 collectively. WW4 was Senior Assistant, Labour Department, Shishu Palan Kendra. He tendered in evidence copy of application no. 1194 dated 04/03/91, Ex. WW4/1.
18. Besides, during cross examination of MW1, workman also confronted him with copy of FIR No. 410/05 which was Ex. MW1/X1.
19. Management, on the other hand, examined Sh. D.P. Prashar, an accountant as MW1 on his affidavit Ex. MW1/A. Besides, he also tendered following document in his evidence:
1. Copy of letter dated 22/12/99 from workman to management, Ex. MW1/1.
2. Copy of notice from National Commissioner for SCST issued to the management, Ex. MW1/2 & 3.
3. Copy of reply of the management filed before National Commission, OBC Industry dated 24/03/2000, Ex. MW1/4.
4. Typed copy of letter from management to National Commission for ST Industry dated 24/03/2000, Ex. MW1/4.
5. Copy of two summons from National Commission for STST issued to management dated 13/03/2000, Ex. MW1/5.
6. Copy of complaint lodged by the management with P.S. Karol Bagh, Ex. MW1/6.
7. Copy of complaint lodged with police dated 22/12/99 & 03/08/99, Ex. MW1/7 collectively.
8. Copy of salary sheets, Ex. MW1/8 collectively.
9. Copy of letter along with its annexures from management dated 31/08/95, Ex. MW1/9 collectively.
20. Arguments were heard at length. File perused. Now, I proceed to decide the claim on the basis of material on record, in the light of arguments of both parties. My findings on each issue are as under: ISSUE No. 1
21. Workman has tendered ample documentary as well as oral evidence in support of her claim that she was an employee of the school. As far as the documentary evidence is concerned, the most material document is Ex. WW4/1 which is an application form dated 04/03/91 bearing no. 1194 vide which the claimant has prayed for admission of her small child in Government Cretch run by Shishu Palan Kendra. This application is bearing an endorsement by way of a remark/certificate from the principal of the management school to the effect that claimant is working as a Sweeper in their school for the last five years. Same has been signed by Ms. Sudesh Singal, principal of the school.
22. Ld. A/R for management tried to make much of the difference between Ex. WW4/1 and Ex. WW1/1 portraying it as a photocopy of the same form but having glaring difference and in other words pointed out towards the document Ex. WW1/1 being forged document.
23. Ex. WW4/1 was a government record and was produced by WW4 Sh. Subhash Chand Arora, Senior Assistant, Labour Welfare Department, Shishu Palan Kendra. He had produced original record which was seen by the court whereafter the copy thereof was exhibited as Ex. WW4/1. The arguments of Ld. A/R for management was that the form Ex. WW4/1 is showing the name of the mother as Mayawati whereas the name of the claimant in the present claim as well as in Ex. WW1/1 is shown as Maya. However, there was no explanation about the endorsement of the principal of the school on Ex. WW4/1.
24. Upon a comparison of the two forms i.e Ex. WW4/1, brought by the Government Official and the form Ex. WW1/1, produced by the claimant, it becomes amply clear that same was only a handwritten copy of the form Ex. WW4/1 and was in no way a photocopy except of course the portion relating to the endorsement by the school.
25. Even otherwise, it was not the case of the management that there was any other Sweeper by the name of Mayawati working for the last five years in their school. As per the management, it was only one Dayawati who was working in the school as a Sweeper. There has been no mention of Mayawati.
26. Even otherwise, the record brought vide Ex. WW4/1 has remained unrebutted during cross examination of WW4 inasmuch as no suggestion has been put to WW4 that he had brought a false and fabricated record. The entire contents of the form starting from the child's name i.e Arti, mother's name shown as Mayawati, name of father, occupation of mother, cast shown as Balmiki Harijan, place of working shown as address of the management are all absolutely the same as in Ex. WW1/1 except the name of the mother which is shown as Mayawati in Ex. WW4/1 and Maya in Ex. WW1/1. It is once again emphasized that Ex. WW1/1 is not a photocopy of Ex. WW4/1. It is a separate hand prepared copy of the contents of Ex. WW4/1 and while copying the contents, may be by the claimant or by her husband, the name may have been written in short for the sake of brevity as 'Maya'. Apart from this, there would be no explanation as endorsement of the school principal is very well there on Ex. WW4/1 and as already stated above Ex. WW4/1 has remained unrebutted document.
27. It is not only a mere application with which the claimant has come forward in her evidence, but also the receipts of her children Arti and Pooja which are Ex. WW1/2 & 3 respectively and which are showing the name of the students along with their class etc. and the month and showing an amount of Rs. 80/ to have been charged as fee with no amount being charged for tuition fee and the words 'staff' having been endorsed in handwritten along side. The column in front of tuition fee is not bearing any amount of money. The progress reports of Arti and Pooja Ex. WW1/4 & 5 are connecting the children to the workman as the name of one of the parent is shown as Ashok, who is also shown as husband of claimant/workman in the claim as well as various other documents.
28. Apart from this, workman has examined several other witnesses who have deposed that she had been working for a very long time. Sh. Bhim Singh, a Chowkidar with the school itself examined himself as WW2. He also tendered in evidence the copy of his Icard which was Ex. WW2/1. Besides, Mukesh who was a student of the school has also deposed that he had seen the workman working for more than 1012 years in the said school. This student had studied in the school upto the year 1995 which would make the starting year of employment of the workman somewhere in 1983 or 1985. The endorsement on Ex. WW4/1 by school principal would render the starting year of her employment as being somewhere in the year 1986. Although WW3 has admitted in his cross examination that the workman was the sister of his mother. No suggestion was put to him that he was deposing falsely being related to the workman; and even otherwise, simply being related to the workman would not be sufficient by itself to discard his testimony since in all other aspects it has been duly corroborated by the documentary evidence produced by the workman. As such, the testimony of WW3 as well as WW2 both of whom have withstood the test of cross examination well, have merely strengthened the case of the workman. WW4 having already been discussed with respect to the documents, he has proved.
29. The workman could obviously not do anything more to prove employeremployee relationship than she has already done in the present case. In a situation when employer fails to issue any appointment letter and fails to maintain any attendance of the employee/official registered but prefers to mark it in rough register as stated by the workman in her cross examination also, the workman has done well to prove her claim by way of the best evidence that could be available with her in the circumstances. Her statement in her affidavit that attendance used to be marked on rough register has also gone unrebutted, during her cross examination.
30. There may be some contradictions, no doubt, between the replies of the workman in her cross examination and her statements in the claim and the affidavit, but the said contradictions pointed out by Ld. A/R for management, during arguments, are not quite material for example the workman in cross examination has replied that she did not demand an appointment letter during her service, but then she has volunteered by saying that she asked for regularization. An employee working for as long as a period of 1214 years would certainly be demanding regularization and which naturally caused annoyance to the management who desired to take the services of the workman without putting her on the rolls for years and years together in order to avoid all claims for regularization. As regards marking of attendance in rough register, the workman has very well replied in cross examination also that there were two registers of attendance with the management and that her attendance used to be entered in the Kachha Register. Delay in filing the claim has very well been explained by the various authorities which were being approached by the workman/claimant ever since termination of her service like Directorate of Education and the National Commission for SCST as well.
31. As against this, management has examined Sh. D.P. Prashar, an accountant of his affidavit Ex. MW1/A. However, no document like a power of attorney or a resolution authorizing the witness and making him competent to swear the affidavit and to examine himself on behalf of the school has been tendered in evidence. As otherwise in the normal course for a school to leave out its principal and to choose to examine its accountant would at least require a resolution passed by the Director/Members of the Committee authorizing the witness to depose on behalf of school. Since that has not been done in the present case, the very competence of Sh. D.P. Prashar, accountant to appear and depose on behalf of the school is lacking.
32. However, even so, going on merits, the contents of his affidavit are on the line of the written statement. He has relied upon summons being received from National Commission for SCST time to time being Ex. MW1/2 and Ex. MW1/3. Management denied in their W/s having received any demand notice from the workman but their witness has himself tendered the copy of the letter received from the workman being Ex. MW1/1. The entire contents are same as that of the claim. On the contrary, reliance of management itself on the copy of the letter dated 22/12/99 strengthens the case of the workman even more as workman in this letter has stated all about her employment as well as two daughters studying in the school as children of the staff and the fact that the school has struck off names of the two children also from the school ever since termination of the service of the workman.
33. Reliance of the management itself on this letter, in fact, no doubt, helps in arriving at the truth of the controversy and which is that workman was actually working with the management for the last many years and that her two children were also being allowed to study in the same school and treated as children of staff whose fee used to be paid as fee for children of staff. It also shows that the school removed the two children also from their studies after terminating the service of the workman. Management has also relied upon a copy of the reply they sent to the National Commission for SCST dated 24/03/2000 Ex. MW1/4. In this also they have maintained that there was no employeremployee relationship between the parties and that the workman and her husband as well as brotherinlaw were harassing the school management and for which complaints had been lodged. The copy of the complaints lodged with police Ex. MW1/6 & 7 on different dates are all pertaining to the year 1999 i.e after one year of already having terminated the service of the workman. However, management has not explained as to what became of these reports whether any FIR was ever registered on these complaints or any investigation was carried out.
34. As regards the salary sheets Ex. MW1/8, there is no doubt that the name of the employees does not show the name of the claimant therein, but as already stated by claimant on her affidavit that her name had been entered in Kachcha Register and her attendance used to be marked thereon, it is evident that school was not maintaining any record with regard to the workman like salary record or attendance record.
35. As regards Ex. MW1/9, this is a letter from the school addressed to the Education Officer, however, this letter mentions as annexure, only a list of students and children and not the nonteaching staff and as such is of no significance.
36. Even otherwise, the cross examination of MW1 renders him to be devoid of any credibility/genuineness. The relevant portions of the cross examination of MW1 are being reproduced hereunder: "It is correct that Ex. WW1/2 to Ex. WW1/3 belongs to our school.
It is correct that ward/children of teaching and nonteaching staff are exempted from paying tuition fees. It is correct that FIR No. 410/05 pending against me copy of the same Ex. MW1/X1. It is correct that this complaint is made against me by Ms. Usha Rajpoot who is teacher in the school. Smt. Usha Rajpoot is Nursery Teacher.
We did not submit the list of Nursery teacher to the Directorate of Education. Vol. as per the direction of Hon'ble High Court after the year 1999, the list of Nursery teacher was also approved by Directorate of Education. It is correct that besides Usha Rajpoot Smt. Ritula Bhalla, Anju Malhotra and Anuradha is also employed as a Nursery Teacher. It is wrong to suggest that the management has not forwarded the name of these Nursery Teacher and claimant Maya Devi to the Directorate of Education as they were demanding their lawful rights. It is correct that Sh. Kashi and Mukandi are still working with the management. Smt. Chanda and Kamla is also still working with the management. It is correct that these names were not mentioned because they joined in he year 2000. No such record was filed in the court. It is wrong to suggest that Smt. Chanda used to work since long with the claimant Maya. It is wrong to suggest that claimant was working with the management as a Sweeper for the last 14 years when her services were terminated illegally by the management. Management had issued appointment letter to Chanda and Mukandi, Kamla. The appointment letter was also issued to Usha Rajpoot, Ritula Bhalla, Anju Malhotra and Anuradha. I can produce the appointment letter of these persons (the said appointment letters were never produced)........ It is wrong to suggest that management is not maintaining the services record of its employees properly..."
37. From the above cross examination viewed along with the list of employees annexed to Ex. MW1/9 and document Ex. MW1/8 amply proves that management was not in the habit of maintaining records properly and on the contrary they were maintaining record which suited them. FIR No. 410/05 Ex. MW1/X1 lodged against the accountant D.P. Prashar speaks much about the ways in which the school management was being run. When a teacher can be told that she should be kicked out and she is filthily abused by those in the management one can imagine the actual state of affairs of the management regarding employees like sweepers.
38. From the above discussion, it is clear that workman has very well proved that she was an employee of the management at least since the year 1986 and as such issue no. 1 is decided against the management and in favour of the workman.
ISSUE No. 2
39. It is not the case of the management that they issued any notice to the workman or paid her any notice pay or paid her retrenchment compensation prior to her termination. It is not their case that they gave any show cause notice or charge sheet or held any enquiry against her. The only defence set up by the management was that claimant was not their employee, which defence has already been proved to be absolutely false through the findings on issue no. 1 above. This itself goes on to show that management merely tried to wriggle out of its liabilities towards the claimant by raising false and frivolous defence that she was not their employee. After having served 1214 years, management has tried to get rid of the workman in a most highhanded and arbitrary manner. Throughout her employment they chose not to maintain any official record pertaining to the workman. The FIR Ex. MW1/X1 duly highlights the malafide of the management. The letter of the workman sent to the management which has been relied upon by management itself clearly leads a supports to the case of the workman that her service was terminated in a most arbitrary manner.
40. The report of Labour Inspector dated 05/09/01 Ex. WW1/6 has also remained unrebutted. This report clearly states that school had failed to show the record pertaining to the relevant period to the Labour Inspector. Copy of demand notice Ex. WW1/7 was even sent by the union of the workman to the office of the Conciliation Officer. Besides, the various summons from National Commission for SCST issued to the management also proves that workman was running from pillar to post to seek redressal against her illegal termination. Documents of management like complaint lodged with police do not inspire any confidence in view of the entire defence brought forth by the workman.
41. In view of the above discussion, termination of service of the workman has been absolutely in violation of provisions of I.D. Act and also in violation of principles of natural justice. Issue no. 2 is also decided in favour of workman and against the management.
42. As regards relief to which the workman is entitled, although she has stated in her claim and affidavit that she remained unemployed ever since the date of termination inspite of her best efforts to obtain an alternative job, in her cross examination she has admitted that her husband is working in MCD and she did not try for job anywhere after her termination. However, it is also true that throughout the workman was pursuing the matter with different authorities at different levels including even the Head Office of DAV School, Chitragupta Road, Pahar Ganj. She even approached National Commission for SCST, also Directorate of Education for reinstatement throughout. In the circumstances, even if she did not look for job elsewhere, workman's entire time seems to have been spent in pursuing the matter of reinstatement in the service in question itself.
43. However, keeping in view all the facts and circumstances and since already a span of ten years has gone by since the illegal termination of the workman, it shall be more appropriate to award compensation in lieu of reinstatement.
44. Although there are various recent judgments of the Hon'ble Supreme Court granting small amount of compensation ranging from Rs. 10,000/ to 25,000/, none of these judgments lay down any formula or guidelines to arrive at the said amount. However, in J.U. Akhtar Vs. Management of M/s Markfed Agro reported as 2006 VIII AD (Delhi) 33, the Hon'ble Delhi High Court has held that in such cases, the compensation cannot be less than the back wages he would otherwise be entitled too.
45. Accordingly, I award compensation to the tune of Rs. 1,50,000/ to the workman along with interest @ 18% per annum from the date of filing of claim till realisation, besides litigation cost of Rs. 10,000/. Reference is answered accordingly. Award is passed. Copy of the award be sent to appropriate government for publication within 30 days from the receipt of the award. File be cosigned to record room.
Announced in the open court Today on 11/04/2008 (SUJATA KOHLI) Presiding Officer Labour CourtII, Court No. 48, KKD Courts, Delhi.