Delhi District Court
Satish Kumar S/O. Sh. Bhola Mehto vs Changed To: M/S. Bala Ji Offset on 16 January, 2015
Satish Kumar Vs. M/s. Balaji Offset DID No. 132/10
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI:
KARKARDOOMA COURTS: DELHI
DIRECT INDUSTRIAL DISPUTE (DID) No. 132/10
UNIQUE CASE ID No. 02402C0107742010
In the matter of :
Satish Kumar s/o. Sh. Bhola Mehto,
R/o. RZ14/231/232, West Sagar Pur,
New Delhi46.
Through: Central Labour Union (Regd.)
Smt. Sonia Gandhi Camp,
B254, Narayana Industrial Area,
PhaseI, New Delhi ....Workman / Claimant
Vs.
M/s. Balaji Offset
(For its constitution refer to para. no.8 of this award)
J6, Udyog Nagar, Peeragarhi,
New Delhi 110041.
Changed to: M/s. Bala Ji Offset
E219, Sector - 3, DSIIDC Industrial Area Bawana,
Delhi - 110039
(vide application of workman moved on 25.09.2014)
....Management
Date of Institution : 15.04.2010
Date of reserving for award : 22.01.2014
Date of award : 16.01.2015
AWARD
1. CASE AS PLEADED BY WORKMAN IN THE STATEMENT OF CLAIM
FILED ON 15.04.2010 u/s. 10(4A) of the INDUSTRIAL DISPUTES ACT, 1947.
(i) Workman was working with management since last two years as a permanent
employee on the post of 'MACHINEMAN' and his last drawn salary was Rs.9000/ per
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month. Workman during his service tenure did not give any opportunity to management
to have any complaint against him.
(ii) Management was not providing labour facilities available to workman under the
labour laws such as appointment letter, attendance card, pay slip, identity card, govt.
holidays, ESI, PF, overtime charges, increments in salary and bonus etc., which were
being orally demanded by workman from time to time and on account of such demands
raised by workman, management used to be annoyed ('naraz') with workman.
(iii) As workman was making demands for labour facilities available under the
labour laws, management terminated the services of workman malafidely on 28.07.2009
without any reason and prior information to workman. Management also did not pay
salary of workman for the months of June and July 2009 at the time of terminating the
services of workman.
(iv) Workman through union made a written complaint to the labour office on
31.07.2009. Labour Inspector alongwith workman visited the establishment of
management and discussed with management, Mr. Sumit, the matters regarding
reinstatement of workman in service and payment of arrears of salary to workman but
management flatly refused to reinstate the workman and to pay arrears of salary to
workman. Labour Inspector called the management alongwith records in the labour
office but in the presence of Labour Inspector management neither reinstated the
workman in service nor produced any record concerning the workman.
(v) Workman sent a demand notice dated 06.08.2009 to management through currier.
Despite the receipt of the demand notice, management neither reinstated the workman
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nor replied the demand notice.
(vi) Management prior to terminating the services of workman neither served any
chargesheet nor conducted any domestic enquiry etc. Also management, at the time of
terminating services of workman, neither gave any written notice nor paid notice
pay/service compensation/overtime charges/money in lieu of leaves/earned salary/other
legal dues. The act of management in terminating the services of workman on
28.07.2009 is absolutely illegal/unjustified and is in violation of provisions of section
25F of the Industrial Disputes Act, 1947.
(vii) Workman is completely unemployed since the date (i.e. 28.07.2009) of illegal
termination of his services by management. Despite much efforts made by workman
management did not reinstate the workman; also workman did not get alternative service
despite endless efforts made by him. Workman is facing financial crises on account of
his being unemployed and, also, workman is facing problem in maintaining ('palan
poshan') his family for which management is responsible.
With these averments workman prayed for an award in his favour and against the
management directing the management to reinstate the workman in service with
management with full back wages, continuity of service and all labour facilities
alongwith litigation expenses.
2. STAND TAKEN BY MANAGEMENT IN THE WRITTEN STATEMENT OF
DEFENCE
Management, while denying the case as pleaded by workman in the statement of
claim, took the stand that claimant on 16.02.2009 applied for the post 'MachineMan' and
management, after considering the same, appointed the claimant w.e.f. 23.02.2009 on
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the monthly salary Rs.4400/ per month. Management in this regard filed on record
appointment letter dated 23.02.2009. As per management, appointment letter of the
claimant clearly stipulated that claimant shall be on probation for a period of six months
and if the services of claimant are not confirmed by management by a letter in writing,
the probation period shall extend automatically for another period of six months. The
performance of claimant was never satisfactory for which warnings were issued by
management on various occasions. When, during the probation period, it was observed
by management that there is no scope of improvement, the management had chosen not
to confirm the services of claimant and services of claimant were terminated w.e.f.
28.07.2009. The claimant was employed by management only for a period of five months
5 days at the time his services were terminated and, therefore, section 25F of the
Industrial Disputes Act, 1947 has no application in this case. At the time of termination
of services of workman all dues which accrued in favour of claimant were duly paid by
management to the satisfaction to the claimant vide full and final settlement letter dated
28.07.2009 which the claimant duly acknowledged without any protest. As per
management, workman never raised demands for legal labour facilities as alleged in the
statement of claim. As per management, claimant preferred conciliation proceedings
before Deputy Labour Commissioner, Karampura, which were eventually withdrawn by
claimant on 26.10.2009 as the same were meritless and even otherwise deserved to be
dismissed. As regards demand notice, stand of the management is that claim raised by
claimant in the said demand notice was unlawful and, therefore, it was not considered by
the management. Also, as per management, after termination of service of claimant by
management claimant joined Maya Offset Printers and his gainfully employed as
'MachineMan'. At last, management prayed that statement of claim preferred by
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claimant be dismissed with heavy costs.
3. REJOINDER
In the rejoinder, workman denied the stand taken by management in its WS and
reaffirmed the averments made in statement of claim. Workman pleaded that
management has falsely prepared appointment letter, salary register and full and final
settlement receipt. Workman further pleaded that during his service with the
management, management took his signatures on blank papers and blank appointment
letter / full and final settlement receipt and, also, management took the signatures of the
workman every month on blank salary register which was objected to by the workman
but workman was made to keep mum with the threat of termination of the service by the
management.
4. ISSUES
Vide order dated 26.11.2010 ld. predecessor of this court frame the following
issues :
(i) Whether there is a relationship of employer and the employee between the
claimant and the Management? OPM
(ii) Whether the services of the workman have been terminated illegally and /
or unjustifiably by the Management?OPW
(iii) Relief, if any.
5. DISPOSAL OF APPLICATION OF WORKMAN SEEKING PRODUCTION
OF DOCUMENT FROM MANAGEMENT.
Vide order dated 21.04.2012 an application moved by workman seeking
production of (a) Registration Certificate of the establishment; (b) Standing order
alongwith Regulation of the establishment; (c) Attendance Register, Payment of Wages
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Register, Attendance Card, Pay Slips, ESI Register, Bonus Register, Overtime Register
for the period of January'2007 to December'2009; (d) Seniority List of all the workmen;
(e) Leave Record w.e.f. January'2007 to December'2009; (f) Cash Book / Day Book
w.e.f. January'2007 to December'2009; (g) Income Tax Return for the year 2007 to
2010; (h) Muster Roll Register January'2007 to December'2009 and (i) Application of
the workman applied for job by / from the management was disposed off by observing
that following documents are necessary documents for the judicious disposal of the
present industrial dispute (a) Registration Certificate of the establishment; (b)
Attendance Register and Payment of Wages Register for the period of January'2007 to
December'2009; (c) Seniority List of all the workmen and (d) Application by which this
workman applied for the job.
6. EVIDENCE
Workman appeared in witness box as WW1 Satish Kumar. Workman relied upon
documents namely Ex.WW1/1 Compliant (dated 31.07.2009) made through union by
workman alongwith other workmen to Asstt. Labour Commissioner; Ex. WW1/1A
Report (dated 24.05.2010) made by labour Inspector Deepak Kumar, who appeared in
the witness box as WW2 Deepak Kumar; Ex.WW1/2 Demand Notice (dated
06.08.2009) sent through union / by workman alongwith other workmen namely Mr.
Alok & Mr. Amar Kumar; Ex.WW1/3 Courier receipt (dated 06.08.2009) and
Ex.WW1/4 Attendance Card for the month of July 2009. Workman also examined WW2
Mr. Deepak Kumar, Labour Inspector. WE was closed on 16.12.2011 by Mr. Rajesh
Khanna ARW.
Management examined MW1 Mr. Deepak Aggarwal, partner of the management
and relied upon documents namely Ex.MW1/1 Partnership Deed dated 14.09.2007;
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Ex.MW1/2 Appointment Letter; Ex.MW1/3 Payment of Wages Register for February
2009; Ex.MW1/4 Full and Final Settlement receipt; Ex. MW1/4A Application for
service made by workman; Ex.MW1/5 Certificate of Registration of management under
the Central Sales Tax (Registration and Turnover) Rules, 1957; Ex. MW1/6 - Original
Wages Register for the period from January 2009 to March 2011; Ex. MW1/7 - Original
Attendance Register for the period from January 2009 to January 2011. Mark X
Authority letter in favour of Mr. Deepak Aggarwal; Mark Y Recruitment Letter given by
M/s. Maya Offset Printers in favour of workman. ME was closed on 03.10.2013 by Dr.
Abha Kulshrestha, Adv. for management.
7. APPLICATION OF MANAGEMENT FOR REOPENING OF CROSS
EXAMINATION OF CLAIMANT.
Vide order dated 04.01.2014 an application moved by management for reopening
of cross examination of claimant / workman and permitting the management to further
cross examine the claimant / workman was dismissed.
8. CHANGE IN CONSTITUTION OF MANAGEMENT FROM PARTNERSHIP
OF (i) Mr. Deepak Aggarwal; (ii) Mr. Sumit Bansal; (iii) Mr. Harish Goyal (three
partners as per Partnership Deed dated 14.09.2007) and (iv) MR. VARDAN GOYAL
(added subsequently vide Partnership Deed dated 01.04.2014). To SOLE
PROPRIETORSHIP OF Mr. Vardan Goyal.
Order dated 05.09.2014 reads as under:
"ORDER
05.09.2014
1. Today case is fixed for orders as regards effect of change in the status of
management on proceedings before this court. I have heard Mr. Rajesh Khanna
ARW and Ms. Abha Kulshrestha Adv. for management on this aspect. Ld. counsel
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for the management submitted that Mr. Deepak Aggarwal one of the partners of
management is ready and willing to give the statement that Mr. Deepak Aggarwal
shall bear the financial liabilities, if any, as per the award that may be passed
against the management in this case. This proposal was not agreed to by ld. ARW
submitting that in such an eventuality an award of reinstatement in service, if
passed in this case, would not be executable against the management herein.
Further ld. ARW submitted that in view of change in the status of the
management, ld. counsel for the management has ceased to have any authority to
represent the management. Also ld. ARW submitted that he fails to understand as
to who (i.e. the present management or the new proprietor of the management)
would have a right to challenge the award passed in this case.
2. I have gone through the material available on judicial file very
carefully.
3. This is a Direct Industrial Dispute filed by the workman against
M/s Balaji Offset. M/s. Balaji Offset as per Partnership Deed dated 14.09.2007
available on the judicial file comprises of Mr. Deepak Aggarwal, Mr. Sumit
Bansal and Mr. Harish Goel. Vide order dated 18.07.2014, when the case was at
the stage of final arguments, ld. counsel for the management filed on record
certain photocopy documents i.e., (i.) photocopy of an application moved on
27.05.2014 for amendment under Delhi Value Added Tax Act, 2004 before the
Department of Trade and Taxes, Govt. of NCT of Delhi by Mr. Vardan Goyal as
proprietor of M/s. Balaji Offset and (ii.) and another application moved on
30.04.2014 for amendment under Delhi Value Added Tax Act, 2004 before the
Department of Trade and Taxes, Govt. of NCT of Delhi by Mr. Deepak Aggarwal
as partner of M/s. Balaji Offset.
Vide order dated 31.07.2014 ld. counsel for the management also
filed on record photocopy of one Partnership Deed dated 01.04.2014 and one
Dissolution Deed dated 28.04.2014. The net effect of documents filed by ld.
counsel for the management on 18.07.2014 and 31.07.2014 is that vide Partnership
Deed dated 01.04.2014 Mr. Vardan Goyal was added as fourth partner in addition
to abovementioned three partners detailed in the Partnership Deed dated
14.09.2007. Accordingly, vide abovementioned application dated 30.04.2014
was moved for amendment under the Delhi Value Added Tax Act, 2014 by Mr.
Deepak Aggarwal. Subsequently, partnership vide Partnership Deed dated
01.04.2014 was dissolved vide Dissolution Deed dated 28.04.2014 whereby Mr.
Deepak Aggarwal, Mr. Sumit Bansal and Mr. Harish Goyal left the partnership
w.e.f. 28.04.2014 and Mr. Vardan Goyal continued to do the business in the name
of M/s Balaji Offset as a sole proprietor. Subsequently, Mr. Vardan Goyal moved
abovesaid application dated 27.05.2014 for amendment under Delhi Value Added
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Tax Act, 2004. Thus, during the pendency of present proceedings M/s. Balaji
Offset, initially a partnership firm, has changed into a sole proprietor concern
owned by Mr. Vardan Goyal who was before becoming sole proprietor was added
as fourth partner into the already existing partnership firm having three
partners.
4. Question before this court is as to whether in view of abovesaid
change in the status of management, Mr. Vardan Goyal, who is at present sole
proprietor of the management, deserves to be summoned as a party to these
proceedings or not.
5. At the outset, it is noted that changes in the status of management
has taken place after 01.04.2014 when the case had reached at the stage of final
arguments and both the parties had already availed opportunity to lead their
evidence. The case had attained its maturity for final disposal before the
abovesaid changes in the status of the management. Ordinarily/generally,
liabilities of partners are jointly and severally qua third party. Thus, Mr. Vardan
Goyal by joining the partnership firm w.e.f. 01.04.2014 became liable towards the
outcome of this case to the same extent as the other existing partners of the
management. Subsequently, Mr. Vardan Goyal became the sole proprietor of the
management. Clause7 of the Dissolution Deed dated 28.04.2014 reads as under:
''7. The continuing partner shall in due course pay all the Credits
and discharge all the liabilities of the said partnership and shall
indemnify and keep indemnified the retiring partners against all actions,
proceedings, costs and expenses in respect of matters relating to the said
proceedings.''
Here the words 'continuing partner' refers to Mr. Vardan Goyal now sole
proprietor of the management. It is noted that Mr. Vardan Goyal before becoming
the sole proprietor of the management had become liable towards the outcome of
this award when he joined the management as its fourth partner. Here Mr.
Vardan Goyal is driving his rights in the assets/goodwill etc. of M/s. Balaji Offset
through its partners, and before becoming the sole proprietor Mr. Vardan Goyal
had also joined M/s. Balaji Offset as its partner. Thus, it cannot be said that Mr.
Vardan Goyal is a party different and distinct from M/s. Balaji Offset against
whom this Direct Industrial Dispute has been filed. When so understood this
court may proceed with the adjudication of this case without summoning Mr.
Vardan Goyal as a party to this case. It has also to be kept in mind an award
passed by this court will have binding effect in terms of provisions contained in
section 18 and, particularly, section 18 (3) (c) of the Industrial Disputes Act,
1947. However, it is deemed appropriate to order that a copy of this order be
served upon Mr. Vardan Goyal s/o. Sh. Kailash Goyal, R/o. G16/33, Sector15,
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Rohini, Delhi85 as well as at the business address of management at J6, Udyog
Nagar, Peeragarhi, New Delhi so that he may resort to legal remedies available to
him, if he is aggrieved by any of the representation made by management vide
documents filed on 18.07.2014 and 31.07.2014. Mr. Vardan Goyal may also be so
served through Mr. Deepak Aggarwal who regularly appears before the court.
6. Nothing expressed in this order shall tentamount to expression of
my opinion as regards existence (nonexistence as well)/extent of liabily of
initial/final partners of M/s. Balaji Offset to comply with the final award that may
pass in this case. In such a situation, it cannot be said that ld. counsel for the
management has ceased to have authority to represent the management.
7. It is ordered accordingly."
9. On 11.12.2014, Authority of Dr. Abha Kulshrestha, Adv. was filed on behalf of
Mr. Vardan Goyal.
10. ARGUMENTS
I have heard Mr. Rajesh Khanna, AR for the workman and Dr. Abha Kulshrestha,
Adv. for management. Ld. ARW relied upon case laws reported as (i) Municipal
Corporation of Delhi Vs. Rajender Singh Negi and another, 2003 LLR 294; (ii)
Harjinder Singh Vs. Punjab State Warehousing Corporation, AIR 2010 Supreme Court
1116; (iii) Emsons Radio Corporation & Anr. Vs. Secretary (Labour) Government of
NCT of Delhi and Anr. 2006 LLR 1040; (iv) Bellish India Ltd. Vs. Presiding Officer,
Labour Court and others, 2003 LLR 293 and (v) Delhi Cantonment Board Vs. Central
Govt. Industrial Tribunal & Ors., 2006 LAB. I. C. 1140.
Ld. counsel for management filed written arguments as well as further written
arguments and relied upon / mentioned therein certain case laws reported as (i) Ajnala
Cooperative Sugar Mills Limited Vs. Sukhraj Singh, (2011) 2 SCC (L&S) 341 (SC); (ii)
A. S. Bist Vs. A. K. Gautam, 2011 (1) LLJ 842 (Delhi); (iii) Ranip Nagar Palika Vs.
Babuji Gabhaji Thakore and Ors., 2009 (120) FLR 1007 (SC); (iv) Sita Ram & Ors.
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Moti Lal Nehru Farmers Training Institute, 2008 (IV) AD (SC) 261; (v) State of Haryana
Vs. Ramesh Kumar, 2008 (118) FLR 694 (SC); (vi) Dharamveer Vs. Oriental Bank of
Commerce, 2008 (116) FLR 484 Delhi; (vii) State of Maharashtra Vs. Duttatraya
Digambar Birajdar, 2007 (114) FLR 1191 (SC); (viii) Rameshwar Dayal Vs. Presiding
Officer, 2007 (114) FLR 38; (ix) MCD Vs. Kishan Lal, 2007 (112) FLR 984 (Delhi); (x)
Krishna Bhagya Jala Nigam Vs. Mohammad Rafi, 2006 IX AD (S.C.) 112; (xi) Chief
Engineer, Ranjit Sagar Dam Vs. Sham Lal, 2006 LAB. I.C. 3048 (SC); (xii) R. M.
Yellantti Vs. Asstt. Executive Engineer, 2006 (I) LLJ 442; (xiii) ONGC Ltd. Vs. Shyamlal
Chandra Bhowmik, 2006 (1) SCC 337 = 2006 (I) LLJ 419 (SC); (xiv) HUDA Vs. Jagmal
Singh, 2006(III) LLJ 152 (SC); (xv) RTDC Vs. Intejam Ali Zafri, 2006 (III) LLJ 155;
(xvi) Municipal Corporation of Faridabad Vs. Siri Niwas; 2004 (III) LLJ 760; (xvii)
Batala Cooperative Sugar Mills Ltd. Vs. Sowaran Singh, AIR 2006 (SC) 56; (xviii)
Administrator Kamla Nehru Memorial Hospital Vs. Vinod Kumar, 2006 (108) FLR 189
(SC); (xix) U. P. Rajya Sahakari Bhumi Vikas Bank Ltd. Vs. Labour Court, Mathura,
2006 (108) FLR 393; (xx) Rajrani Vs. G.T.B. Hospital, 2005 (105) FLR 187 (Delhi);
(xxi) Manager RBI, Bangalore Vs. S. Mani, 2005 (105) FLR 1067 (SC); (xxii) Range
Forest Officer Vs. S. T. Hadimani, 2002 (93) FLR 179 (SC); (xxiii) U. P. Avas Evam
Vikas Parishad Vs. Kanak and Another, 2003 LLR 1 (SC); (xxiv) M. P. Electricity Board
Vs. Hari Ram, 2005 LLR 1 (SC); (xxv) M/s. Essen Deinki Vs. Rajiv Kumar, 2002 Lab. IC
3526 (SC); (xxvi) Punjab State Electricity Board Vs. Presiding Officer, 1997 LLR 54;
(xxvii) Deputy Executive Engineer I & P Vs. Padamati Balaramajah, 2003 Lab.1C 574;
(xxviii) Ravindra Baburao Ambolkar Vs. Gujrat Tea Canteen; 1996 LLR 40; (xxix) LIC
of India Vs. Santosh Kumar Sharma, 2004 Lab 1C 3396; (xxx) Pratima Seth Vs.
Management of M/s. Ansal Properties and Industries Ltd., 2007 III AD (Delhi) 314;
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(xxxi) Kendriya Vidyalaya Sangathan Vs. 2005 LLR 275 (SC); (xxxii) Municipal
Council, Sujanpur Vs. Surinder Kumar, 2006 (3) L. L. N. 806 (SC); (xxxiii) S. B.
Chengalvaraya Naidu Vs. Jagannath, AIR 1994 (SC) 853; (xxxiv) M/s. Purafil Engineers
Vs. Shaikh Anwar Abdul Rahman, 2000 LLR 268; (xxxv) Sunil Kumar S. P. Sinha Vs.
Indian Oil Corporation Ltd., Delhi & Anr., 1983 LIC 1139; (xxxvi) Dr. Madan Mohan
Sahu Vs. Chairman - Cum - Managing Director, Mahanadi Coal Fields Ltd. & Others,
1999 LIC 2709; (xxxvii) M/s. Estrela Batteries Ltd. Vs. State of Uttar Pradesh, 1979 (38)
FLR 372; (xxxviii) Mohd. Zahoor Vs. Committee of Management, 1997 LLR 1004;
(xxxix) Dr. Ganesh Dubey Vs. Indian Iron and Steel Company, 1995 LLR 366; (XL)
Edwin A Danial Vs. Labour Court, 1993 LLR 356; (XLI) Mukhtyar Singh Vs. Food
Corporation of India, 1993 LLR 121; (XLII) Ram Prasad Vs. State of Rajasthan, 1993
LLR 59; (XLIII) Sita World Travel Vs. P.O., Labour Court, 1996 LLR 627 (Delhi HC);
(XLIV) 1986 (2) LLN 722 (Delhi HC); (XLV) Awarchin Shiksha Samiti and Others Vs.
Smt. Sarita Gupta & Others, 1984 LIC (NOC 173) Delhi HC; (XLVI) Kedar Nath Bahl
Vs. State of Punjab & Ors., SC Labour Judgment (12) 163; (XLVII) G. S. Rameswamy
Vs. I. G. Police, SC Labour Judgments (12) 174; (XLVIII) Dhanji Bhai Ramji Bhai Vs.
State of Gujarat, SC Labour Judgments Page 241; (XLIX) Municipal Corporation
Raipur Vs. Ashok Kumar Misra, 1991 LAB IC 1266 (SC); (L) I. B. P. Company Limited
Vs. G. S. Bharti, 2000 LLR 188 (Delhi HC); (LI) Vidyavardhaka Sangha Vs. Y. D.
Deshpande, 2006 (111) FLR 397 (SC) and (LII) The Commissioner of Police, Hubli Vs.
R. S. More, 2003 LAB IC 745 (SC). Material available on judicial file perused carefully.
I have given a thoughtful consideration to the facts and circumstances of this case as they
arise on the basis of material available on judicial file. The case laws perused with
utmost regards with a query in mind as to the applicability to the case laws in the facts
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and circumstances of this case.
11. My ISSUEWISE findings are as under:
ISSUE NO. 1
Whether there is a relationship of employer and the employee between the
claimant and the Management? OPM
In this issue, as regards onus, 'OPM' is mentioned. There appears to be some
typographical error in mentioning 'OPM' in as much as it is a settled proposition of law
that onus to prove that there existed relationship of employee and employer between
claimant and management is on the claimant. Further it is noted that, in this case
admittedly there existed relationship of employee and employee between claimant and
management but there are disputes are regards the duration and manner of termination of
such relationship. Issue is, accordingly, decided in favour of workman.
ISSUE NO.2
Whether the services of the workman have been terminated illegally and / or
unjustifiably by the Management?OPW
Here as per workman, workman was working with management since last two
years as 'MachineMan' and management on 28.07.2009 malafidely terminated the
services of workman in violation of provisions of section 25F of the Industrial Disputes
Act, 1947. On the other hand, as per management, on 16.02.2009 claimant applied for the
post of 'MachineMan' and claimant was appointed w.e.f. 23.02.2009 vide appointment
letter Ex.MW1/2. Further management pleaded that the appointment letter clearly
stipulated that claimant shall be on probation for a period of six months and if the
services of claimant are not confirmed by management by a letter in writing, the
probation period shall extend automatically for another period of six months. As
performance of claimant was never satisfactory for which warnings were issued by
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management on various occasions and when during probation it was observed by
management that there is no scope of improvement, management had chosen not to
confirm the services of claimant and services of claimant were terminated w.e.f.
28.07.2009. Also management pleaded that at the time of termination of services of
claimant all dues which accrued in favour of claimant were duly paid by management to
the satisfaction of claimant vide full and final settlement letter dated 28.07.2009 which
claimant duly acknowledged without any protest.
HERE workman in the statement of claim / his evidence affidavit Ex.WW1/A did
not specifically pleaded / deposed about the date of his joining the management.
However in his crossexamination workman deposed that, ".... I had joined my services
with the Management establishment on 2526.06.2007.....". On the other hand as per
management, on the basis of application for job dated 16.02.2009 Ex.MW1/4A workman
was appointed w.e.f. 23.02.2009 vide appointment letter Ex.MW1/2. Workman / WW1
Mr. Satish Kumar in his crossexamination deposed that "..... I had submitted a written
application in the Management establishment for getting a job. It is correct that I have
not filed even a copy of my aforementioned in the judicial record of this case....".
Workman / WW1 Mr. Satish Kumar in his crossexamination further deposed that "....
No appointment letter was issued by the management at any point of time in my
favour...". What is pertinent to note is that in his crossexamination workman / WW1
Mr. Satish Kumar was confronted neither with application for job Ex.MW1/4A nor with
appointment letter Ex.MW1/2. Stand of workman in the crossexamination of MW1 Mr.
Deepak Aggarwal as regards Ex. MW1/2 and Ex. MW1/4A is that these documents were
got signed blank from the workman when workman was appointed. Merely because Ex.
MW1/2 and Ex. MW1/4A bears the signature (as well as thumb impression) of workman
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does not prove the due execution of these documents. The execution of the document
does not mean merely signing but signing by way of assent to the terms of contract (or
contents) embodied in the document. Contents of Ex.MW1/2 or Ex.MW1/4A were not
put to workman / WW1 Mr. Satish Kumar in his crossexamination. Ex.MW1/4A
mentions only the name of workman, his parentage, year of birth and local address
(however, it is noted that address mentioned against this column is not local address but
the address is of Bihar). It does not mention the 'Post / Designation' for which
application was moved, the qualifications ('Yogata') and other details regarding
minimum wages, PF facility and ESI facility.
Address as mentioned in application Ex.MW1/4A is not mentioned in the
appointment letter Ex.MW1/2. Address as mentioned in Ex.MW1/2 is the local address
(i.e. H.No. RZ 20/23 J Block, Sagarpur West, Delhi46) but the same was not mentioned
in application for job Ex.MW1/4A despite there being a specific column in
Ex.MW1/4A regard local address ('sthaniya pata'). Appointment letter Ex.MW1/2 is
vague in as much as in para. 1 it does not mention Grade and relevant space is blank, in
para. 2 nature of appointment of workman whether temporary / probationary /
'shiksharthi' / apprentice / 'badli' has not been clearly specified and in 2nd line of para.2
there is blank space regarding extension of abovesaid temporary / probationary /
'shiksharthi' / apprentice / 'badli' period of workman. Para.6 of Ex.MW1/2 mentions the
management as a 'Factory' but as submitted by ld. ARW, management is a printing press
which is covered under the Delhi Shops and Establishments Act, 1954. Para. 7 refers to
transfer / deputation of workman but, as the facts suggest, management is not having any
other place / office of business. Para.11 refers to Standing Orders of the management,
but so such Standing Orders have even been pleaded to be in existence. FURTHER it is
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pertinent to note that MW1 Mr. Deepak Aggarwal in his crossexamination conducted
on 28.02.2012 deposed that, "It is correct that the wage register for the month of
January 2009, the name of claimant/workman and signature is present and it is also
correct that he has drawn salary of Rs.4400/ for the month of January, 2009......". One
fail to understand if workman was appointed, on the basis of application for job (dated
16.02.2009) Ex. MW1/4A w.e.f. 23.02.2009 vide appointment letter Ex. MW1/2, why
name of claimant / workman is there in the wage register for the moth of January 2009.
At the time of making above referred depositions, MW1 Mr. Deepak Aggarwal did not
make any attempt to tender any explanation in this regard. But MW1 Mr. Deepak
Aggarwal in his crossexamination conducted on 03.07.2012 deposed that ".....Sh. Satish
Kumar had approached us in the first week of January 2009 on trial basis. He worked
on trial basis on about 3045 days. No other document is available with us in regard to
working on trial basis. It is wrong to suggest that Sh. Satish Kumar did not work on trial
basis with the management....". Obviously, by making above depositions, MW1 Mr.
Deepak Aggarwal has tried to improve upon his depositions, which attempt to improve
upon would amount to contradiction, inasmuch as (i) WS of management is silent about
management taking work from the workman on trial basis as per above depositions; (ii)
affidavit of MW1 Mr. Deepak Aggarwal is also silent in this regard and (iii) on
28.02.2012 itself MW1 Mr. Deepak Aggarwal did not make any depositions on the lines
as deposed by him on 03.07.2012 regarding workman being employed on trial basis.
Also no documentary evidence has been led by workman regarding employment of
workman on trial basis.
MW1 Mr. Deepak Aggarwal in his crossexamination conducted on 03.07.2012
deposed as under:
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"...The firm started sometimes in November or December 2007. About 6 to
8 month's time was required for setting up the machinery and no record
was maintained in this period. Around till 2008 we started maintaining the
record on a Kachi copy. I do not remember the exact date and month. In
that time only 23 employees were working at a time and that too not
permanently since the workers used to come and go I short period but we
were maintaining the details of wages paid to them for the days they
actually worked and they were not permanent employees since they used to
come and go in short intervals. I have not filed that kachi copy in the court.
The attendance and wages register have been maintained w.e.f. January
2009 which have been filed in the court.
The partnership deed is correct. It is wrong to suggest that the firm
was in existence prior to partnership deed...".
EVIDENCE GIVEN BY MW1 MR. DEEPAK AGGARWAL WHILE APPEARING AS
A WITNESS IN ID NO.130/10 TITLED AS "ABHISHEK KUMAR VS. M/S. BALAJI
OFFSET" AND OBSERVATIONS MADE BY COURT IN ID NO.130/10.
It would be pertinent to note that MW1 Mr. Deepak Aggarwal while appearing as
a witness in ID No.130/10 titled as "Abhishek Kumar Vs. M/s. Balaji Offset" in his cross
examination conducted on 16.05.2013 deposed that, "The Management firm had started
functioning November,2007 onwards. The employees of the Management use / used not
to sign the attendance register. The Management used to maintain some 'kachha'
records of its employees initially. However, after June / July, 2008 it started maintaining
appropriate records as per law of its employees.....". Further, MW1 Mr. Deepak
Aggarwal in his crossexamination conducted on 18.07.2013, however, deposed that, ".....
It is wrong to suggest that employees have been working in the management since 2007.
(Vol. in the year 2007 the machinery were purchased and it took about 8 months for the
management to start functioning). It is wrong to suggest that I am deposing falsely by
stating that management had not started working in the year 2007. I do not remember
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the exact date when the management had started employing the employees for its
working however, perhaps it was so December 2008 or January 2009. It is wrong to
suggest that employees have been working with the management since 2007...".
OBVIOUSLY, MW1 Mr. Deepak Aggarwal has attempted to improve upon his
depositions made on 16.05.2013. Depositions made on 16.05.2013 suggest that
management was employing employees ever prior to June / July 2008 / since November
2007 but on 18.07.2013 MW1 Mr. Deepak Aggarwal deposed that it was so in
December 2008 or January 2009. Notably initial Partnership Deed of management is
dated 14.09.2007 and Partnership Deed dated 01.04.2014 mentions that parties to the
deed were carrying on the business of all kind of printing work and trading of rexin etc.
in all the name and style of M/s. Balaji Offset at J6, Udyog Nagar, Near Peera Garhi
Chowk, Delhi as a Partnership concern since 14.09.2007 as per duly executed
Partnership Deed dated 14.09.2007. Thus it is observed that management is not
maintaining consistency as regards date of start of business / employing the employees.
MW1 Mr. Deepak Aggarwal deposed that the management used to maintain some
'kachha' record of its employees initially, however, after June / July, 2008 management
started maintaining appropriate record as per law of its employees. But neither the said
'kachha' record or records after / w.e.f. June / July, 2008 has been produced by
management. Management produced Ex.MW1/1 and Ex.MW1/2 for the period from
January 2009 onwards only.
****
Vide order dated 21.04.2012 management was asked to produce attendance register and payment of wages register for the period from January 2007 to December 2009. Despite this order of this Court and depositions of MW1 Mr. Deepak Aggarwal Page 18 to 23 (ANAND SWAROOP AGGARWAL) POLC - XI: KKD:DELHI:16.01.2015 Satish Kumar Vs. M/s. Balaji Offset DID No. 132/10 that initially management used to maintain 'kachha' record of its employee and management after June / July 2008 started maintaining appropriate records as per law of its employees, The said 'kachha' records has not been produced before the Court nor the appropriate record maintained after June / July 2008 as per law has been produced by the management. On account of non production of record adverse inference may be drawn against the management. In view of above detailed discussion the possibility of management employing workman as 'MachineMan' for about 2 years prior to date of termination of his services on 28.07.2009 cannot be ruled out altogether and stand taken by the management regarding management employing the workman vide application for job dated 16.02.2009 Ex.MW1/4A and appointment letter dated 23.02.2009 Ex.MW1/2 does not call for any credence from a judicial mind. When Court is not convinced with stand of the management qua Ex.MW1/4A and Ex.MW1/2, management cannot be said to have lawfully terminated the services of workman in terms of his appointment letter Ex.MW1/2 pleading that workman was on probation. MW1 Mr. Deepak Aggarwal in his crossexamination deposed that, ".... The employees did not use to sign the attendance register. No proof of same was given to employees in regard to attendance however it was clear from the details of payment of wages per month. No pay slips was issued since all the employees use to receive wages on payment of wages register after signing the same......". When the management itself did not provide any proof of attendance to the workman, workman cannot be asked to prove on judicial file documentary evidence as regards his tenure of his working with the management. Despite orders of the Court attendance and wages register were not produced by the management in terms of order dated 21.04.2012.
As per management services of workman were terminated on 28.07.2009 and Page 19 to 23 (ANAND SWAROOP AGGARWAL) POLC - XI: KKD:DELHI:16.01.2015 Satish Kumar Vs. M/s. Balaji Offset DID No. 132/10 workman was paid all the dues which accrued to him to his satisfaction vide Ex.MW1/4. What is pertinent to note is that MW1 Mr. Deepak Aggarwal in his crossexamination deposed that, ".... It is correct that attendance of Satish Kumar appears on 30 and 31 July 2009 in the attendance register and he has been mark absented on 27 to 29 July 2009. No leave application was given by Satish Kumar for these days. No telephonic call and no letter was sent by him. Vol. it may be possible that absence was marked in the morning the workman would have come at some later point of time in the day....". Even if these voluntarily depositions are believed, one failes to understand as to why presence of workman have been marked on 30 & 31 July 2009 when the services of workman stood already terminated on 28.07.2009 on which date workman was allegedly also paid his all the dues.
This stand of the management that workman was paid his full and final settlement on 28.07.2009 is also not convincing to a judicial mind. MW1 Mr. Deepak Aggarwal in his crossexamination deposed that, "I had not terminated Sh. Satish Kumar on any date. No memo or chargesheet was ever to Sh. Satish Kumar during the tenure of his employment and no enquiry was conducted ever. ......No notice was given to Sh. Satish Kumar on 28.07.2009 for termination. No extra payment was made to Sh. Satish Kumar excepting due salary.....". In view of these depositions it can be said services of workman were neither terminated as a punishment inflected by way of disciplinary action nor provisions of section 25F of the Industrial Disputes Act, 1947 were complied by the management at the time of termination of services of workman.
Further stand of the management that after termination of his services by management, workman joined M/s. Maya Offset Printers is also not worth credence from a judicial mind inasmuch as document Mark - Y filed by management in this regard (i) Page 20 to 23 (ANAND SWAROOP AGGARWAL) POLC - XI: KKD:DELHI:16.01.2015 Satish Kumar Vs. M/s. Balaji Offset DID No. 132/10 is undated; (ii) it does not mention the capacity / source of authority of writer; (iii) it does not mention the name of writer; (iv) it does not mention the purpose of issuance of this document; (v) no appointment letter / application for job made by workman to M/s. Maya Offset Printers has been attached with it and (vi) no one has been examined as a witness from M/s. Maya Offset Printers to prove the recruitment of workman as 'MachineMan' in M/s. Maya Offset Printers since 25.08.2009. Workman in the statement of claim only pleaded violation of section 25 F of the Industrial Disputes Act, 1947 and, hence, evidence tried to be brought on record by workman regarding violation of provisions of section 25G and H of the Industrial Disputes Act, 1947 cannot be read in favour of workman.
Management in the case in hand pleaded that claimant preferred conciliation proceedings before Dy. Labour Commissioner, Karampura, Delhi which were eventually withdrawn by the claimant on 26.10.2009 as the same was meritless and bogus. The fact that claimant / workman withdrew the claim filed by him before the Conciliation Officer does not at all affect the right of the workman to raise industrial dispute regarding termination of services of workman under section 10(4A) of the Industrial Disputes Act, 1947. The statement of claim in this case was filed on 15.04.2010 on which date workman / claimant had every right to raise industrial dispute regarding termination of his services before this Court directly in terms of provisions of section 10(4A) of the Industrial Disputes Act, 1947 inserted vide State Amendment Delhi Act 9 of 2003, sec. 2 (w.e.f. 22.08.2003).
In view of above detailed discussion, this issue deserves to be decided in favour of workman and it is decided accordingly.
ISSUE No.3: Relief, if any.
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Merely because management terminated the services of workman illegally / unjustifiably does not mean that workman is automatically entitled to be reinstated in service with the management with full back wages. Keeping in view the fact that there has been a complete change in the constitution of management and workman had a very short service tenure with the management, workman is held to be not entitled to reinstatement in service with the management.
Workman in the statement of claim pleaded that workman is completely unemployed since the date (i.e. 28.07.2009) of illegal termination of his services by management and despite endless efforts made by workman, workman did not get alternative service. Further workman pleaded that workman is facing financial crises on account of his being unemployed and, also, workman is facing problem in maintaining ('palan poshan') his family for which management is responsible. Workman has not disclosed about the places where workman allegedly searched for job. There is nothing on judicial file, besides oral depositions of workman, to show that workman did make sincere serious efforts to get the alternative employment / job. Also workman cannot be assumed to be unemployed since more than last four years in a city like Delhi where work pertaining to the workman may be easily available. Also workman has not explained as to how workman has been maintaining his family since last more than four years despite being allegedly unemployed. Accordingly workman is held to be not entitled to full back wages.
In my considered opinion, in the totality of the facts and circumstances of this case, grant of lump sum compensation to the tune of Rs.40,000/ (Rupees Forty 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.
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If this amount of Rs.40,000/ (Rupees Forty 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.10,000/ (Rupees Ten Thousand only) is also awarded to workman as costs of litigation payable by the management.
12. A copy of the award be sent to Office of the concerned Deputy Labour Commissioner for further necessary action. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 16.01.2015
(ANAND SWAROOP AGGARWAL)
POLCXI, Karkardooma Courts, Delhi*
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