Delhi District Court
D.I.D. No. 251/09 Page 3 Out Of 36 vs Chemical And on 22 December, 2012
IN THE COURT OF SH. CHANDRA GUPTA
PRESIDING OFFICER LABOUR COURTX
KARKARDOOMA COURTS, DELHI.
D.I.D. No. : 251/09
Date of Institution of the case : 24.02.2009
Date on which reserved for Award : 04.12.2012
Date on which Award is passed : 22.12.2012
Unique ID no. 02402C0677672005
Sh. Mahabir, S/o Sh. Nekse Lal,
C/o A.P.S. & S.S.W Employees Union (Regd.),
5/24, Nehru Ekta Colony, R.K.Puram,
Sector6, New Delhi. ...............Workman
Versus
(i) M/s ESPEE EXPRESS
A254A, Middle Circle,
Near ICICI Bank, Connaught Place,
New Delhi110001
(ii) M/s ELEGANT SERVICES
A254A, Middle Circle,
Near ICICI Bank, Connaught Place,
New Delhi 110001
Also at:
39, Nehru Apartments,
Outer Ring Road, Kalkaji,
New Delhi110019 ...............Managements
A W A R D
The workman Sh. Mahabir, raised an industrial dispute
D.I.D. No. 251/09 Page 1 out of 36
regarding the termination of his services by the managements of M/s
ESPEE EXPRESS and M/s ELEGANT SERVICES. Direct statement
of claim was filed by the workman in the court, title of which was
later on modified, on the moving of an appropriate application by the
workman in this regard, on record, vide the relevant order passed in
this regard, on record and the amended memo of parties taken on
record. In the statement of claim, it is stated by the workman that he
was working with the management as a clerical work/messenger
w.e.f. 25.05.2003; that the management as per its unfair labour
practices was paying him less wages than minimum wages and it was
paying only Rs. 3,200/ per month to him in place of Rs. 4,057/ per
month in the year, 2008; that the management was taking more than
812 hours duty daily from the workman without any overtime wages
and as such, the workman was entitled to receive overtime wages; that
the management was taking signatures from the workman on blank
papers at the time of giving salary to the workman; that the
management paid to the workman @ Rs. 3,200/ per month and then
after on 15.02.2008 given salary for an amount of Rs. 2,700/ per
month before the period of termination of the services of the
workman; that the management was not allowing the workman to
avail earned leave, casual leave, festival and even national holidays
and the management was not giving the weekly off days and the
D.I.D. No. 251/09 Page 2 out of 36
workman is thus entitled to receive wages against the work done by
him during week off days; that the management has not given bonus
to the workman for the years 2005 to 2008 and the workman is thus
entitled to bonus @ 8.33% and the management also took work from
the workman in two different firms, but the Director of both the firms
was same; that the management never issued any kind of notice,
charge sheet or memo for terminating the services of the workman;
that the management did not issue appointment letter to the workman
and it was not keeping proper record of the contributions of PF and
ESI deducted from the wages of the workman and when the workman
himself and through his union started demanding the appointment
letter, arrears of wages less paid and other dues like overtime etc., the
management refused blankly to the workman to allow to resume duty
w.e.f. 14.08.2008 illegally and the workman is thus entitled for
reinstatement in service with continuity of service and full back
wages along with incidental benefits; that the workman again
approached the Labour Department in respect of his grievances, but
all in vain, hence the present statement of claim is before this Hon'ble
Court. Hence, the workman has claimed for reinstatement with full
back wages, continuity of service and all his dues.
Notice of filing of the statement of claim was sent to
the managements. The managements appeared and contested the
D.I.D. No. 251/09 Page 3 out of 36
claim of the workman by filing their written statements. In the written
statement filed by the management no.1, it has taken the preliminary
objections that the statement of claim is not maintainable for the
reason that under section 10 (4A) of the Industrial Disputes Act,
1947, the claim for bonus etc. except those mentioned in the section
are not maintainable; that the demand for bonus etc. requires espousal
by substantial number of workers of the Industry concern, hence, this
matter having never been espoused, therefore, the statement of claim
is not maintainable; that the Bonus Act, the Minimum Wages Act are
not applicable to the respondent; that the present claim has been filed
only to extract money illegally from the management by misusing the provisions of the I.D. Act, 1947; that the respondent is not engaged in any manufacturing activities, is, therefore, not an industry; that the statement of claim is not maintainable for the reason that the alleged cause of action never arose and the same is premature; that the alleged dispute do not exists between the parties; that the title of the management is not correct as mentioned; that there is no establishment titled as Espee Express & Elegant Services; that the claimant is taking different stands and there is variations of pleadings in LCA filed earlier and now this matter, hence the statement of claim is liable to be dismissed. On merits, it is stated that the claimant is in the employment of M/s Espee Express, S39, Okhla Industrial Area, D.I.D. No. 251/09 Page 4 out of 36 Phase II, New Delhi as Courier/unskilled worker; that the claimant filed a LCA in the court of Sh. Rakesh Sidhartha, the then POLC, Karkardooma Courts, Delhi wherein he had submitted that M/s American Express Bank and M/s Standard Chartered Bank are his principal employer; that the claimant was never appointed as clerical/messenger; that the respondent is a courier service and the claimant is working as courier; that last drawn wages of the claimant were at the rate of Rs. 4,000/ per month; that the provisions of the Minimum Wages Act are not applicable to the respondent/management; that the claimant filed a case against the management before the authority under the Minimum Wages Act and later on withdrew the same; that the management has never taken overtime work from the claimant; that the claimant work according to his own set up on day to day as per nature of distribution of letters; that in fact the claimant works for less than 8 hours a day; that the provisions of the Bonus Act are not applicable to the management/respondent; that M/s Espee Express and M/s Elegant Services are two separate establishments; that different courier services do attach themselves to ease the distribution of the letters etc. in different area, that does not mean that these are one; that the services of the claimant are not terminated by the management; that it is the claimant who is preferring to stay away from his job; that the D.I.D. No. 251/09 Page 5 out of 36 claimant is not entitled to claim or receive the bonus from the respondent because the Bonus Act is not applicable to the respondent; that ESIC Act and EPF Act are not applicable to the respondent; that no deductions from the wages of the claimant or any other employee are thus made on these accounts; that the management has never refused duty to the claimant on any date much less the alleged one i.e. 14.08.2008; that in fact it is the claimant who is preferring to stay away from the job and harassing the management by writing letters and raising false claim against the management; that the claimant filed LCA which was dismissed and earlier the claimant filed a claim before the Minimum Wages Authority, which was later on withdrawn; that no order of termination is so far passed by the management in any manner whatsoever against the claimant; that the claimant can unconditionally join the duty; that the management has written so many letters to the claimant asking him to join the duty but the claimant is preferring to stay away from the job, so that he can extract money illegally from the management by misusing the liberal provisions of the Industrial Disputes Act, 1947 and various other labour laws; that the management issued appointment letter to the claimant; that the statement of claim is prematured and there is no cause of action which requires adjudication under section 10 (4A) of the I.D. Act, 1947 r/w section 2A; that the claimant is not entitled to D.I.D. No. 251/09 Page 6 out of 36 the relied prayed for; that the respondent is not carrying out any manufacturing process, hence is not an industry; that no industrial dispute therefore, either exists or subsists, between the parties, hence the provisions of the I.D. Act, 1947 are not applicable in this matter; that this matter is beyond the jurisdiction of this Hon'ble court. All other allegations are denied. Hence, it is prayed that the statement of claim be dismissed.
In the written statement filed by the management no.2, it has taken the preliminary objections that the statement of claim is not maintainable for the reason that under section 10 (4A) of the Industrial Disputes Act, 1947, the claim for bonus etc. except those mentioned in the section are not maintainable; that the demand for bonus etc. requires espousal by substantial number of workers of the Industry concern, hence, this matter having never been espoused, therefore, the statement of claim is not maintainable; that the Bonus Act, the Minimum Wages Act are not applicable to the respondent; that the present claim has been filed only to extract money illegally from the management by misusing the provisions of the I.D. Act, 1947; that the respondent is not engaged in any manufacturing activities, is, therefore, not an industry; that the statement of claim is not maintainable for the reason that the claimant was not an employee of the answering respondent and thus not a workman; that the alleged D.I.D. No. 251/09 Page 7 out of 36 dispute do no exists between the parties; that the provisions of I.D. Act, 1947 are not attracted in this matter against the answering respondent no. 2, hence, the statement of claim is liable to be dismissed for misjoinder for parties as well; that the claimant is taking different stands and there is variations of pleadings in LCA filed earlier and now this matter, hence the statement of claim is liable to be dismissed. On merits, it is stated that the claimant not an employee of the answering respondent; that the claimant filed a LCA in the court of Sh. Rakesh Sidhartha, the then POLC, Karkardooma Courts, Delhi wherein he had submitted that M/s American Express Bank and M/s Standard Chartered Bank are his principal employer; that the claimant was never appointed as clerical/messenger; that the respondent is a courier service;that the provisions of the Minimum Wages Act are not applicable to the respondent no. 2/management; that the claimant filed a case against the respondent no.1/management before the authority under the Minimum Wages Act and later on withdrew the same; that since the claimant was not an employee o the respondent no. 2/management, the question of taking overtime work hardly survives; that the provisions of the Bonus Act are not applicable to the respondent no.2/management; that M/s Espee Express and M/s Elegant Services are two separate establishments; that different courier services do attach themselves to ease the D.I.D. No. 251/09 Page 8 out of 36 distribution of the letters etc. in different area, that does not mean that these are one; that since the claimant was not an employee of the respondent no. 2/management, the question of terminating his services by the answering respondent hardly survives, therefore, the claimant is not entitled to claim or receive the Bonus from the respondent no. 2/management because the Bonus Act is also not applicable to the answering respondent; that ESIC Act and EPF Act are not applicable to the respondent no. 2; that no deductions from the wages of any other employee are thus made on these accounts; that the claimant filed LCA which was dismissed and earlier the claimant filed a claim before the Minimum Wages Authority, which was later on withdrawn; that the claimant is not entitled to the relief prayed for; that the respondent is not carrying out any manufacturing process, hence is not an industry; that no industrial dispute therefore, either exists or subsists, between the parties, hence the provisions of the I.D. Act, 1947 are not applicable in this matter; that his matter is beyond the jurisdiction of this Hon'ble court. All other allegations are denied. Hence, it is prayed that the statement of claim be dismissed.
In rejoinder to the written statement of the management no. 1, all the averments of the statement of claim are reaffirmed and of the written statement of management no.1 are denied by the workman.
D.I.D. No. 251/09 Page 9 out of 36 No rejoinder to the written statement of the management no. 2 has been filed by the workman, on record.
On the pleadings of the parties vide order dated 27.11.2009, the following issues were framed:
(i) Whether the workman has himself abandoned the job of management no.1?
(ii) Whether the management no.1 is not an Industry?
(iii) Whether the claim is not maintainable in view of preliminary objection no. A and B of the W.S. of management no.1 and 2?
(iv) Whether there is any relationship of employer and employee between the workman and management no. 2?
(v) Whether the workman was terminated illegally by the managements?
(vi) Relief.
No other issue arose or pressed and the case was adjourned for workman evidence.
In support of his case, the workman himself has appeared as WW1 in workman evidence, tendered his affidavit by way of evidence Ex. WW1/A as also relied upon the documents Ex. WW1/1, Ex. WW1/2 (colly), Ex. WW1/3, Ex. WW1/4 (colly), Ex. WW1/5 (colly), Ex. WW1/6 (colly), Ex. WW1/7 (colly), Ex. WW1/8 (colly), Ex. WW1/9, Ex. WW1/10 (colly), Ex. WW1/11, Ex. WW1/12 and D.I.D. No. 251/09 Page 10 out of 36 Ex. WW1/13, on record. In his affidavit by way of evidence Ex. WW1/A, the workman has reiterated the contents of his statement of claim.
After examining WW1, evidence on behalf of the workman was closed.
No evidence has been led by the management in support of its defence and the management evidence has been closed on record on the submission of the AR for the management that he does not wish to lead any evidence on behalf of the management in its management evidence, on record.
Final arguments have been heard.
AR for the workman has filed written submissions as also relied upon citation 1979 (1) SCC 590 G.T. Lad Vs. Chemical and Fibres of India Ltd.
AR for the managements has also filed written submissions as also relied upon citations CWP 4501/04 Delhi High Court, Diamond Toys Co. (P) Ltd Vs. Sh.Toofani Ram & Anr.; 2007 LLR 342 Delhi High Court, Tej Pal Vs. Gopal Narain & Sons and Anr.; 2006 LLR 51 Delhi High Court, M/s Trina Engineering Company (P) Ltd. Vs. The Secretary (Labour) & Others; 2001 LLR 768 Competition Printing Press Vs. Shriut Jaiprakash Singh & Anr. ; 1995 70 FLR 1 Bombay, Saroj Ramesh Shah Vs. Balkrishna D.I.D. No. 251/09 Page 11 out of 36 Pen Pvt. Ltd and Others.
My issuewise findings are as under: Issue no.1.
It is seen from the record that the workman has appeared in his workman evidence as WW1, tendered his affidavit by way of evidence Ex. WW1/A as also relied upon documents Exts. WW1/1 to WW1/13, on record. In his affidavit by way of evidence, he has reiterated the contents of his statement of claim to the effect that he was the workman in the above noted case and fully conversant with the facts and circumstances of the case and competent to swear the affidavit by way of evidence Ex.WW1/A; that the workman was working with the above named management as a clerical work/messenger w.e.f. 25.05.2003 as an efficient worker and worked accordingly, to the choice of the management and the management as per its unfair labour practices paying him less wages than minimum wages and it was paying only Rs. 3,200/ per month in place of Rs. 4,057/ per month in the year 2008; that the management was taking more than 812 hours duty daily from the claimant without any overtime wages and such, the claimant was entitled to receive overtime wages; that the management was taking signatures from the claimant on blank papers at the time of giving salary to the claimant; that the management paid to the workman @ Rs. 3,200/ per month D.I.D. No. 251/09 Page 12 out of 36 and then after on 15.02.2008 given salary for an amount of Rs. 2,700/ per month before the period of termination of the service while not full salary was given to the claimant as Rs. 500/ was less by the management; that the management was not allowing the workman to avail earned leave, casual leave, festival and even National Holidays and the management was not giving the weekly off days and the workman is thus entitled to receive wages against the work done by him during week off days; that the management has not given bonus to the workman for the years 2005 to 2008 and the workman is thus entitled to Bonus @ 8.33 % and the management also took work from the workman in two different firms, but the director of both the firm was same; that the management never issued any kind of notice, charge sheet or memo for the termination of the services of the workman;that the management did not issue appointment letter to the claimant and it was not keeping proper record of the contributions of EPF and ESI deducted from the wages of the workman and when the workman himself and through his union started demanding the appointment letter, arrears of wages less paid and other dues like overtime etc.; that the management refused blankly to the claimant to allow to resume duty w.e.f 14.08.2008 illegally and the claimant is thus entitled for reinstatement in service with continuity of service and full back wages along with incidental D.I.D. No. 251/09 Page 13 out of 36 benefits; that the claimant approached the labour department in respect of his grievances but all in vain. Ex. WW1/1 being copy of the letter dated 14.08.2008 of the workman to the management no. 1; Ex. WW1/2 (colly) being copy of the letter dated 14.08.2008 of the workman to the SHO, P.S. Connaught Place, New Delhi; Ex. WW1/3 being copy of the letter dated 18.08.2008 of the workman through union to the Assistant Labour Commissioner, Government of NCT of Delhi, Curzon Road Barracks, New Delhi; Ex. WW1/4 (colly) being copy of the letter dated 20.08.2008 of the workman to the managements along with its postal registration receipt; Ex. WW1/5 (colly)being copy of the letter dated 28.08.2008 of the workman to the management no. 2 along with its postal registration receipt; Ex.WW1/6 (colly) being copy of letter dated 30.08.2008 of the workman to the management no. 1 along with its postal registration receipt; Ex. WW1/7 (colly) being copy of letter dated 12.09.2008 of the workman to the management along with its postal registration receipt; Ex. WW1/8 (colly) being copy of letter dated 13.09.2008 of the workman to the managements along with its postal registration receipt; Ex. WW1/9 being copy of letter dated 15.02.2008 of the workman to the SHO, P.S Connaught Place, New Delhi along with its postal registration receipt; Ex.WW1/10 (colly) being copy of letter dated 18.12.2006 of the workman to the management no. 1 along with D.I.D. No. 251/09 Page 14 out of 36 its postal registration receipt and courier receipt along with envelope received back undelivered; Ex. WW1/11 being copy of letter dated 30.06.2008 of the workman to the management no. 1 along with its postal registration receipt; Ex. WW1/12 being copy of notification (Government of NCT of Delhi) for minimum wages dated 03.03.2008; Ex. WW1/13 being identity card of the workman with the management no. 1.
This witness has been cross examined at length on behalf of the management in workman evidence, in which he has deposed that it was correct that he had filed a LCA against the management in the Court of Sh. Rakesh Sidhhartha, POLC, Delhi; that it was correct that he had withdrawn the said LCA against the management; that it was correct that he had filed a case under the Minimum Wages Act against the management and had withdrawn the same vide his application dated 26.06.2008, photocopy of which is Ex. WW1/M1; that it was correct that he was having the ICard of M/s ESPEE Express only and not of M/s Elegant Services; that it was correct that he was not having any termination letter from M/s ESPEE Express; that he was not having copy of any application for applying of leave to the management from 13.08.08; that it was wrong to suggest that he had never applied for leave to the management w.e.f. 13.08.08; that it was correct that he was doing only the work of a courier and D.I.D. No. 251/09 Page 15 out of 36 not of clerical nature with the management; that it was wrong to suggest that had never done any overtime work or that Bonus, ESI and PF Acts are not applicable to the management; that it was correct M/s ESPEE Express and M/s Elegant Services are two different managements; that it was correct that he had been explained the contents of the Written Statement filed by the management nos. 1 and 2 by his authorized representative; that it was wrong to suggest that he had never made any complaint to the Police Authority vide Ex. WW1/2; that it was correct that he had received letters dated 25.08.2008 and 08.09.2008 from the management, photocopies of which are Exts. WW1/M2 and WW1/M3 respectively; that it was correct that the name of his daughter is Vijay Rani; that it was correct that on 19.08.2008, the management had sent an employee Sh. Nardeep to his residence, who had met his daughter and had told her to send him for his duties with the management; that it was correct that he was performing his duties with the management since 05.03.2011; that it was wrong to suggest that the managements are not under the Scheduled employment of Minimum Wages Act; that his family comprises of himself, two sons, and a daughter; that he could not tell the monthly expenditure of his family; that it was wrong to suggest that he had filed a false case against the management in order to extort money from the management; that it was wrong to D.I.D. No. 251/09 Page 16 out of 36 suggest that he had never remained unemployed; that it was wrong to suggest that he was deposing falsely.
It is seen from the record that Ex. WW1/M1 is the copy of an application of the workman to the competent authority in respect of withdrawal of his case/application under section 20 Minimum Wages Act, 1948 pending before it against the management amongst other; Ex. WW1/M2 being copy of letter dated 25.08.2008 of the management no. 1 to the workman at his admitted address, on record, to the effect that;
the said management had received letter sent by the workman to it alleging that the management had refused to take the workman on duty on 14.08.2008 without any reason, which was incorrect; that it was further incorrect that the workman had given any application for leave to the said management on 13.08.2008 as alleged by him; that it was further incorrect that the workman had been coming/reporting for duty with the said management as alleged by him in his letter to the said management; that on 12.08.2008 when the management no.1 had asked the workman to sign on the salary register and voucher, then the workman like always had refused that his counsel/advocate had forbade him in this regard and that D.I.D. No. 251/09 Page 17 out of 36 the workman would not sign and then had left the office of the management no.1; that the management no.1 had to under compulsion send the salary cheque in respect of the workman to him through speed post; that the salary of the workman @ Rs. 4,000/ per month is as follows:
a).Salary for the months of JuneJuly, 08 @ Rs. 4,000/ per month i.e. 4000 x 2 = 8,000/
b). Conveyance FebMay, 08 @ Rs. 450/ i.e. Rs. 450 x 4 = 1,800/
c). Conveyance JuneJuly, 08 @ Rs. 465/ i.e. Rs. 465 x 2 = 930 Total Rs. 10,730/ (Rupees Ten Thousand Seven Hundred and Thirty Only) that the same had been sent by the management no.1 to the workman vide cheque bearing no. 847970 dated 18.08.2008 along with he warning that in case such an act is repeated by the workman then appropriate action would be taken by the management against him; that the workman was absenting himself from his duties with the management without communicating any reason to the management in this regard and that the management had informed the workman vide a letter that in case he did not turn up for duty within three days then it would be presumed that he had abandoned his services with the D.I.D. No. 251/09 Page 18 out of 36 management; that the workman has not responded to the same till date nor reported for his duty with the management till date; that the management on 19.08.2008 sent the supervisor of the workman Sh. Nardeep to the residence of the workman to summon his duties with the management but the workman had not reported for his duties from which it is clear that the workman does not wish to resume his duties with the management and has taken some better alternative employment; that the workman had prior to this in order to harass the management had filed a false case against the management and American Express Bank/Standard Chartered Bank, which had been later on in midst unilaterally withdrawn by the workman from which it is clear that the workman is in the habit of harassing the management from whom he draws his salary, which is wrong on his part; that the salary of the workman is Rs. 4,000/ per month and conveyance allowance was Rs. 465/ per month and that he had been given his salary for the past period at the said rate and that only the salary of the workman w.e.f 01.08.2008 to 12.08.2008 is due upon the management which would be sent by the D.I.D. No. 251/09 Page 19 out of 36 management to him at the appropriate time on the appropriate date; that whenever the management receives any notice/summons from Karkardooma Court then it will present itself before the Hon'ble Court;
Ex. WW1/M3 being copy of letter dated 08.09.2008 of the management no. 1 to the workman at his admitted address as given on record to the effect that;
enclosed herewith please find pay order/bankers cheque no. 097735 for Rs. 2,065/ (Rupees Two Thousand Sixty Five Only) dated 08.09.2008 drawn on Indian Overseas Bank, Kailash Colony, being wages for the month of August, 2008 as per his attendance with the management from 01.08.2008 to 12.08.2008. Details are as under:
1) Wages @ Rs. 4,000/ per month for 12 days Rs.1600/
2) Conveyance Rs. 465/Total Rs. 2,065/ (Rupees Two Thousand Sixty Five Only). Kindly acknowledge receipt at the earliest;
along with photocopy of the said bankers cheque of the management in the name of the workman.
Thereafter, workman evidence has been closed, on record. It is seen from the record that the management has chosen not to lead any evidence in its management evidence, on record, by way of D.I.D. No. 251/09 Page 20 out of 36 statement of the AR for the management to the said effect recorded separately, on record and accordingly, management evidence has been closed, on record.
It is further seen from the record that it had been submitted on behalf of the management that the workman can join his duties with the management and accordingly, vide order dated 04.03.2011, on record, the workman was directed to join his duties with the management on 05.03.2011 at 09:30 A.M. and the case fixed for report from the parties in this regard/further proceedings, on record, consequent to which it has been reported by the parties that the workman has joined his duties with the management on 05.03.2011 at 09:30 A.M. as directed, vide order dated 24.05.2011 in this regard, on record. It is further seen from the record that it has been admitted by the workman as also there is no dispute between the parties that the workman is performing his duties with the management since 05.03.2011. It is further seen from the record that the workman has admitted on record that he was having the identity card of the management no. 1, which has been filed by him in his workman evidence, on record as also has been exhibited on his part as Ex. WW1/13 in the same, on record. It is further seen from the record that the workman has not filed any rejoinder to the written statement of the management no. 2 viz. M/s Elegant Services, at A254A, D.I.D. No. 251/09 Page 21 out of 36 Middle Circle, Near ICICI Bank, Connaught Place,New Delhi 110001 and also at 39, Nehru Apartments, Outer Ring Road, Kalkaji, New Delhi110019 as mentioned/ given by him in his statement of claim in which the management had denied the relationship of employer and employee between the said management and the workman and accordingly, has not rebutted the said allegations/averments/submissions of the management no. 2 against him in this regard on record, as also it has been admitted by the workman in his cross examination as WW1 on behalf of the management in workman evidence that it was correct M/s ESPEE Express and M/s Elegant Services are two different managements (emphasis supplied) and accordingly, in view of the above evidence led by the workman in his workman evidence, on record by way of identity card of the management no. 1 in respect of his services with the management no. 1 Ex. WW1/13 in workman evidence, on record as also in view of the above admission on the part of the workman in his cross examination as WW1 in workman evidence, on record, along with the pleadings of the parties, on record, it is apparent that the workman is the employee of the management no. 1 only and not of the management no. 2 and had been working with the management no. 1 as also has resumed his duties with the said management on 05.03.2011 on the direction of this court as reported by the parties in D.I.D. No. 251/09 Page 22 out of 36 this regard, on record.
That in view of the workman being in the employment with the concerned management viz. management no.1 with effect from 05.03.2011 i.e. during the pendency of the instant case till the date of passing of award only the relief of his entitlement to backwages, if any, with the management w.e.f. the date of the alleged termination of his services by the management viz. 14.08.2008 till 04.03.2011 is to be examined.
It is seen from the record that vide his affidavit by way of evidence Ex. WW1/A as also vide documents Exts. WW1/1 to WW1/13, on record, the workman has alleged in no uncertain terms that he had been employed with the management no. 1 as a clerical work/messenger w.e.f. 25.05.2003 on the last drawn salary of Rs. 3,200/ per month, which was less than the minimum wages of Rs. 4,057/ per month as fixed for his post for the relevant period and that the management was not giving him the legal facilities of minimum wages, overtime wages as also was taking signatures from the workman on blank papers at the time of giving salary to the workman a also was not providing him earned leaves, casual leaves, festival and national holidays as also not giving him weekly off days along with bonus for the year 2005 to 2008; that the management had not issued any appointment letter to the workman and that the workman had D.I.D. No. 251/09 Page 23 out of 36 been demanding the legal facilities due to him from the management on which account the management had got annoyed with him and had terminated his services w.e.f. 14.08.2008 illegally by way of not allowing him to resume his duties with the management with effect from the said date and accordingly, the workman is entitled to his reinstatement in service along with backwages and continuity of his service; that the workman had approached the labour department in this regard but to no avail. It is further seen from the record that the workman has reiterated his said allegations against the management vide his letters Exts. WW1/1 to WW1/11, on record, sent to the management vide postal registration receipts filed on record along with the said exhibits. It is further seen from the record that though the management has alleged vide Exhibits WW1/1M2 (copy of letter dated 25.08.2008) and WW1/M3 (copy of letter dated 08.09.2008) of the management to the workman, as above said, that the management had written the said letter (Ex. WW1/M2) to the workman that he was not reporting for his duties on his own w.e.f. 13.08.2008 even despite the management having sent the supervisor of the workman one Sh. Nardeep to his residence on 19.08.2008 asking him to report for his duties with the management as also had sent a cheque bearing no. 847970 dated 18.08.2008 for an amount of Rs. 10,730/ in respect of his salary for the months of June and July, 2008 along with D.I.D. No. 251/09 Page 24 out of 36 conveyance allowance for the months of February to July, 2008 on 18.08.2008, however, it is seen from the record that vide his letter dated 20.08.2008 to the management no. 1 sent by registered post Ex. WW1/4 (colly), on record, it has been stated by the workman that the management without any reason or notice had not allowed him to join his duties with the said management and since thereafter, he had been reporting for his duties with the said management continuously but the management was not allowing him to resume his duties with it as also the management was sending other employees to his house, who were taking written statements from his children as also the supervisor whose name is Nardeep had also been sent to his house in this regard despite his going/reporting to his office at Okhla where there is no board or office existing on the relevant date and then he had gone to the premises at A25/5 Connaught Place, New Delhi, where also the management had refused to take him on duty; that he had accepted the cheque dated 18.08.2008 for an amount of Rs. 10,730/ sent by the management on 19.08.2008 under protest which was less than his legal entitlement as mentioned in the said letter. It is further seen from the record that the workman has reiterated his said allegations against the management vide his letter dated 28.08.2008 sent by registered AD post to the management (Ex.WW1/5 colly), on record as also vide his letter dated 30.08.2008 again sent by registered D.I.D. No. 251/09 Page 25 out of 36 AD post vide the postal registration receipt of the said date, on record, Ex. WW1/6 (colly), on record, in which the workman has alleged that he has received the letter dated 25.08.2008 of the management Ex. WW1/M2 on 29.08.2008 contents of which were false, that he has been receiving his salary from the management even prior to February, 2008 and that the amount as worked out by the management in respect of his salary due to him is less than his entitlement under law to the same as also he has accepted the amount sent by cheque by the management in this regard under protest; that it was wrong on the part of the management to allege that he had not taken leave on 13.08.2008; that he had been reporting for his duties at both the addresses of the management continuously; that, however, the management no. 1 is not existing at its Okhla address and nor having any sign board on the same as also he had reported for his duties at Connaught Place office but he was not taken back on duty by the management; that the management had not taken him back on duty despite his having gone for his duties with it several times and despite his letters to the management in this regard, the management had presented the facts in a twisted manner vide its letter dated 25.08.2008, which are not correct; that he had even complained against the management before the Labour Department in writing and that the management had never represented to the Labour Department D.I.D. No. 251/09 Page 26 out of 36 to the effect that his complaint against it was false; that he was again requesting the management to take him back in his services with it as also to pay to him his earned wages for the intervening period; that the management was stating in its said letter that he was not reporting for his duties whereas he had been daily reporting for his duties with the management but the management had not been taking him back on duty and under compulsion he is sending the instant letters in this regard to the management and that the management no. 1 was wrongly sending him letters on its Okhla address when in fact no firm/establishment/address of the management is existing there as he had not been able to receive any receipt of any letter sent to the management no. 1 at the said address. It is seen from the record that the said letters have allegedly been sent by the workman at both the addresses of the management viz. S39, Okhla Industrial Area, Phase II, New Delhi110020 and A25/5, Connaught Place, New Delhi110001.
It is further seen from the record that the workman has dealt with the contents of Ex.WW1/M3 vide his letters dated 12.09.2008 and 13.09.2008 sent to the management by registered AD post, Exts. WW1/7 Colly and WW1/8 Colly, on record, in which he states that he had received the cheque of Rs. 2,065/ sent vide letter dated 08.09.2008 of the management on 11.09.2008 under protest as D.I.D. No. 251/09 Page 27 out of 36 the cheque sent by the management is for an amount less than the earned wages due to the workman as also minimum wages had not been paid to him; that he had been going regularly to both the addresses of the management, however, he had not been taken back on his duties with the management; that the address as given in respect of the management no.1 is having no board nor any office of the said management, hence he is sending the letters at the address of the management no. 2 filed along with the statement of claim of the workman to which letters of the workman to the management duly exhibited in the examination in chief of the workman as WW1 in workman evidence, on record, there is no rebuttal on the part of the management in its cross examination of the workman in workman evidence, on record, to the effect that the workman had not sent the said letters Exts. WW1/1 to WW1/11 to the management or that the management had never received the subject letters or even to the effect that the management had ever sent any reply/rebuttal to the said letters to the workman and accordingly it is seen from the record that the workman has duly accounted for the contents of the letters dated 25.08.2008 and 08.09.2008, Exts. WW1/M2 and WW1/M3 relied upon by the management in its cross examination of the workman in workman evidence and has further alleged that inspite of the said letters of the management to him he had been reporting to D.I.D. No. 251/09 Page 28 out of 36 the addresses of the management for his duties but had not been allowed to resume his duties with the management on its part to which allegations of the workman by way of Exts.WW1/1 to WW1/11, on record, I find there is no rebuttal on the part of the management in its cross examination of the workman (WW1) in workman evidence and accordingly it cannot be said that the workman had concealed any material facts from this Court or has willfully absented himself from his duties with the management no.1 so as to constitute abandonment of the same on his part as alleged by the management no.1, onus of proving of which was admittedly upon the management no.1 especially so, in view of the fact that the management no.1 has chosen not to lead any evidence in support of its said allegations against the workman in its management evidence, on record, by way of submission of the AR for the management that the management does not wish to lead any evidence in the management evidence, on record and accordingly, the management evidence be closed, on record, vide order dated 06.02.2012 passed in this regard, on record and having closed its management evidence, on record, vide statement of its authorized representative to the said effect, on record and has chosen to only rely on the contents of Exts. WW1/M2 and WW1/M3 in support of its allegations against the workman constituting the instant issue viz. of his alleged D.I.D. No. 251/09 Page 29 out of 36 abandonment of his services with the management no.1 which I find is insufficient, on record, in view of the workman having accounted for the same vide his above said letters Exts.WW1/1 to WW1/11 to the management, on record, to which it has already been observed that there is no rebuttal on the part of the management in its cross examination of the workman (WW1) in workman evidence, on record, as also in view of abandonment being not a temporary absence but being a total and complete giving up of duties so as to indicate an intention not to resume the same (emphasis supplied) as held by the Hon'ble Supreme Court of India vide citation AIR 1979 SC 582; G.T. LAD and others, Appellants vs. M/s Chemical and Fibres of India Ltd., Respondent and abandonment being admittedly also a facet of misconduct necessitating holding of an enquiry as held by the Hon'ble Supreme Court of India vide citation MANU/SC/0529/1993 (JT 1993 (3) SC 617) D.K. Yadav Appellant vs. J.M.A. Industries Ltd. Respondent as also by the Hon'ble High Court of Delhi vide citations 2010 (117) DRJ 433 Anil Chuttani, Appellant vs. The Oil and Natural Gas Corporation, Respondent; 2010 LLR 312 Hindustan Associates Engineers Pvt. Ltd. vs. Sh. K.K. Aggarwal; MANU/DE/0541/2005 Shakuntla's Export House (P) Ltd. vs. Secretary (Labour); Mount Carmel School vs. The D.I.D. No. 251/09 Page 30 out of 36 Presiding Officer, Labour Court NoX, Karkardooma Courts, Delhi and Others, which factum viz. holding of an enquiry into the alleged absence of the workman from his duties with the management no.1, I find from the record has neither even been averred by the management in the instant proceedings nor proved in the same, on record.
In view of my above observations, I, thus find that the management has not been able to discharge the onus of proving the instant issue which admittedly was upon it and accordingly, the instant issue is decided in favour of the workman and against the management.
Issue no.2.
It is seen from the record that apart from leveling a bald preliminary objection by way of its written statement the management no.1 has not pressed the said objection in its cross examination of the workman (WW1) in workman evidence and nor led any evidence in its management evidence, on record and accordingly in view of the provisions of the citation Bangalore Water Supply and Sewerage Board Vs. A Rajappa and Ors MANU/SC/0257/1978: (1978) ILLJ 349 SC, specifically: "I. 'Industry', as defined in Section 2(j) and explained in Banerji, has a wide import.
D.I.D. No. 251/09 Page 31 out of 36
(a) Where (i) systematic activity, (ii) organized by cooperation between employer and employee (the direct and substantial element is chimerical) (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss, i.e., making, on a large scale, prasad or food) prima facie, there is an 'industry' in that enterprise.
(b) Absence of profit motive or gainful objective is irrelevant, be the venture in public, joint, private or other sector.
(c) The true focus is functional and the decisive test is the nature of the activity, with special emphasis on the employeremployee relations.
(d) If the organization is a trade or business, it does not cease to be one because of philanthropy animating the undertaking."
the instant issue is decided in favour of the workman and against the management no.1.
Issue no.3.
It is further seen from the record that the D.I.D. No. 251/09 Page 32 out of 36 managements though having raised the instant preliminary objections in their written statements, on record, have not chosen to press the same in their cross examination of the workman (WW1) in workman evidence nor led any evidence in this regard in management evidence, on record and accordingly have not been able to discharge the onus of proving of the instant issue which admittedly was upon the managements and accordingly the same is decided in favour of the workman and against the managements.
Issue no.4.
In view of my observations and findings on issue no. 1, above, it is held that the workman is the employee of the management no.1 and accordingly, the instant issue is decided in favour of the management no.2 and against the workman. Issue no. 5.
It is seen from the record that the workman has alleged vide his statement of claim as also vide his affidavit by way of evidence Ex.WW1/A; that he had been in the employment of the management w.e.f.25.05.2003 to which allegation, I find from the record there is no effective rebuttal on the part of the management no. 1 of whose employee the workman has been held to be, on record, either in its written statement in which no date of appointment has been mentioned in respect of the workman with it, on record, though D.I.D. No. 251/09 Page 33 out of 36 it having been admitted on the part of the management no.1 that the claimant/workman is in the employment of the management no.1., as a courier as also in the cross examination of the workman (WW1) in workman evidence.
It is further seen from the record that in view of my findings on issue no.1, above, the workman has been able to prove, on record, that his services have been terminated on the part of the management no.1 on 14.08.2008 as alleged by him (it being the case of the management no.1 that the workman had absented himself from his duties with the management no.1 w.e.f. 13.08.2008 and thereby had abandoned his services with the said management w.e.f. the said date which case of the management no.1 has been held to be not proved, on record, vide my findings on issue no.1, as above, on record) and accordingly in view of the admitted period of service of the workman with the management no.1 w.e.f. 25.05.2003 till 14.08.2008, it is thus seen from the record that the workman has completed 240 days of service with the management no.1 in the year preceding the date of his alleged termination of service by the management no.1 on the date alleged and accordingly is entitled to the protection of the provisions of Section 25 F of the Industrial Disputes Act, 1947 (as amended upto date) as on the said date which I find from the record in view of the defence of the management no.1 D.I.D. No. 251/09 Page 34 out of 36 qua the services of the workman, as abovesaid, have not been complied with on the part of the management no.1 in his respect as on the said date and accordingly the termination of the services of the workman on the part of the management no.1 on the date alleged viz. 14.08.2008 is held to be illegal.
Issue no.6.
It is seen from the record that the workman has already rejoined his duties with the management on 05.03.2011 at 09.30 A.M. as directed by this Court and is in employment with the management no.1 till date.
It is further seen from the record that the workman has nowhere alleged either in his statement of claim or even in his affidavit by way of evidence Ex.WW1/A in workman evidence that he is unemployed from the date of termination of his services till any date or that he had ever searched for any alternative employment and was unable to find any in order to be entitled to the relief of backwages from the employer/management no.1 for the relevant period which was for the workman to allege on record, in order to be entitled to the relief of backwages, if any, whereas it is seen from the record that the management has put a suggestion to the workman to the effect that he had never remained unemployed in its cross examination of the workman (WW1) in workman evidence though D.I.D. No. 251/09 Page 35 out of 36 which has been denied by the workman, however, in view of the workman having not even alleged, on record, that he has been unemployed during the period w.e..f. the date of termination of his services on the part of the management no.1 till any date, on record, I find that the workman is not entitled to the relief of backwages for the period w.e.f. the date of termination of his services on the part of the management no.1 as alleged by him till the date when he has been taken back in service by the management no.1, on record, though entitled to continuity of service.
The Award is passed. The Ahlmad is directed to send six copies of this award to the appropriate Government. The file be consigned to the Record Room.
Announced in the open court (Chandra Gupta)
on 22.12.2012 Presiding Officer Labour CourtX
Karkardooma Courts, Delhi.
D.I.D. No. 251/09 Page 36 out of 36