Delhi District Court
Janak Sharma S/O. Sh. Rushi Ram vs Gh14/558 on 9 September, 2016
Janak Sharma Vs. M/s. S.P.Engineering Products India LCA No. 1353/16
BEFORE LABOUR COURT - XI: KARKARDOOMA COURTS: DELHI
PRESIDING OFFICER: Mr. ANAND SWAROOP AGGARWAL
(Delhi Higher Judicial Service)
(Additional District & Sessions Judge, Delhi)
LABOUR COURT APPLICATION (LCA) NO. 1353/16
UNIQUE CASE IDENTIFICATION NO. 02402C0020012013
In the matter of:
Janak Sharma S/o. Sh. Rushi Ram,
R/o. 4276, Gali No. 5, Prem Nagar, Delhi.
C/o. General Mazdoor Union ( Regd.),
T43,Karampura, New Delhi15. ......... Workman/Claimant
Vs.
M/s. S.P.Engineering Products India
{Through its Partners Shri Sukhbinder Singh and
Shri Riehhpal Singh Sidhu},
{Notably vide order dated 14.08.2014 Mr. Sukhvinder Singh,
one of the partners of management, submitted that the
name of other partner is Ms. Pritam Kaur}
575/1, Mundaka, New Delhi.
ALSO AT:
487/59, Peeragarhi, National Market,
New Delhi87.
ALSO AT:
GH14/558, Paschim Vihar, New Delhi87. ........... Management
Date of Institution : 06.12.2012
Date of reserving for Decision : 09.09.2016
Date of Decision : 09.09.2016
APPLICATION U/S. 33 C (2) OF THE INDUSTRIAL DISPUTES ACT, 1947
DECISION
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Janak Sharma Vs. M/s. S.P.Engineering Products India LCA No. 1353/16
1.CASE OF THE WORKMAN AS PLEADED IN LABOUR COURT APPLICATION
(i) The workman was working with the management on the post of 'Fitter' at the last drawn wages of Rs. 8112/ per month since June 1995. The management did not issue any appointment letter to the workman.
(ii) During the course of employment the workman never gave any chance of complaint to the management. So, the service record of workman was neat and clean.
(iii) The management did not provide the legal facilities/legal dues i.e. leave wages, bonus to the workman which was demanded by him time to time and every time the management gave assurance to him that the management shall provide all the legal facilities/dues very soon. But the management did not provide/pay the same. The management became annoyed with the workman, and as a result of which, the management illegally terminated the services of workman on 23.09.2011 and thereafter closed the establishment.
(iv) The management did not pay the legal dues i.e. leave wages and bonus for the year 201011 to the workman.
(v) The establishment of management has been closed, so the workman is legally entitled to recover the dues as per details given below:
i) Service Compensation @ 15 days p.a. since June 1995 till 23.9.2011 Rs. 64,896/
ii) Leave Wages @ 15 days p.a. for the year 201011 Rs. 4056/
iii) Bonus @ 8.33 p.a. for the year 201011 Rs. 8112/
iv) Notice Pay One month Rs. 8112/
v) Litigation Expenses Rs. 5000/ Total Rs. 90,176/
(vi) The workman visited at the establishment of management many times and requested to the management to pay his dues but the management did not pay any Page no. 2 of 8 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/09.09.2016 Janak Sharma Vs. M/s. S.P.Engineering Products India LCA No. 1353/16 single due to the workman.
vii) The workman sent the demand notice to the management through speed post and through this demand notice the workman requested the management to pay his legal dues but the management neither sent any reply nor paid any single amount to the workman.
viii) The workman filed his complaint against the management before the Asst. Labour Commissioner, Karampura, New Delhi and on this complaint the Labour Inspector issue notice to the management for appearance in his office and the management appeared before him and paid only earned wages to some workmen. But the management did not pay the legal dues to the workman on the instructions of Labour Inspector.
ix) The other partner Shri Riehhpal Singh Sidhu is running his separate business at 487/59, Peeragarhi, National Market, New Delhi87.
x) The workman Janak Sharma is entitled for a sum of Rs. 90,176/ towards his legal dues from the management.
With these averments, workman prayed for allowing this application and to pass an order of Rs. 90,176/ alongwith 24% p.a. interest and 10 times penalty in favour of workman and against the management.
2. STAND TAKEN BY MANAGEMENT IN THE WRITTEN STATEMENT OF DEFENCE SIGNED BY MR. SUKHWINDER SINGH Management in the written statement of defence, while denying the case as pleaded by workman in the Labour Court Application, pleaded that claimant joined the services of management on 07.01.2001 and worked till 28.02.2011. Later he rejoined on 13.10.2008 and worked till 17.07.2011. The claimant worked as on unskilled workman and last drawn wages of the claimant were Rs. 6084/ per month. The length of service and date of appointment of claimant is correctly stated on the ESI Card given to the claimant. The service record of workman was neither neat nor clean. All the legal facilities were being Page no. 3 of 8 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/09.09.2016 Janak Sharma Vs. M/s. S.P.Engineering Products India LCA No. 1353/16 given to the claimant regularly and religiously by the management, and there was no occasion for the claimant to demand the same from the management. The management never became annoyed with the claimant on any score whatsoever. The management never terminated the services of the claimant on 23.09.2011 or any point of time. The claimant left the services of management on 17.07.2011 and never came back again to the management. The management did close the establishment bonafidely and legally. The management has paid leave wages and bonus to the claimant for the year 20102011 in labour office. The claimant is not entitled to receive any dues or a sum of Rs. 90,176/ from the management. The entire claim of the claimant is fictitious, illegal, baseless, malafide. Mr. Sidhu is not running any separate business. At last management prayed for dismissal of claim of workman in the interest of justice.
3. REJOINDER Workman filed rejoinder to the WS of the management denying the stand taken by management in WS and reaffirming the averments made in the statement of claim. In the rejoinder workman pleaded that the has filed this application only to recover the compensation/dues from the management which is statutory right of workmen, and, hence, this application is maintainable under the law.
4. ISSUES Vide order dated 31.10.2013, following issues were framed:
1) Whether petition U/s. 33 (C) (2) of the Industrial Disputes Act, 1947 as framed and presented is not maintainable ? OPM
2) Whether workman is entitled to amount as claimed in para 5 of the claim or any other amount? OPW.
3) Relief. 5. EVIDENCE
Workman appeared in witness box as WW1 Mr. Janak Sharma and tendered his examinationinchief vide evidence affidavit Ex. WW1/A. Workman relied upon documents namely Ex. WW1/1 Demand Notice dated 17.08.2012 Page no. 4 of 8 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/09.09.2016 Janak Sharma Vs. M/s. S.P.Engineering Products India LCA No. 1353/16 addressed to the management; Ex. WW1/2 (OSR) Postal Receipt dated 22.08.2012; Ex.WW1/3 (OSR) Postal Receipt dated 22.08.2012; Ex. WW1/4 (OSR) Postal Receipt dated 22.08.2012 and Ex. WW1/5 (OSR) ESIC Card.
Despite opportunity given, management did not crossexamine the workman. In fact none appeared for management to crossexamine the workman and vide order dated 07.09.2016 right of management to crossexamine the workman stood closed. WE was closed by ld. Counsel for workman on 07.09.2013.
Despite opportunity given management did not lead any evidence. In fact none appeared for management on 09.09.2016 when case was fixed for ME. Accordingly, ME was closed on 09.09.2016 by court order.
6. ARGUMENTS I have heard Mr. Ajit Singh, Adv. for workman and carefully perused the material available on judicial file.
7. ISSUEWISE FINDINGS WworW ISSUE NO.1 Whether petition U/s. 33 (C) (2) of the Industrial Disputes Act, 1947 as framed and presented is not maintainable ? OPM On 29.04.2016 Court passed the following ORDER: ''ORDER 29.04.2016
1. This order shall dispose off an application moved on 25.03.2015 by the management with the prayer that issue of maintainability of the claim be treated as preliminary issue and decided forthwith in the interest of justice.
2. Workman contested this application by filing reply on 18.09.2015.
3. I have heard Sh. Raj Rishi, Adv for management and Mr. Ajit Singh, Adv. for workman. Ld. Counsel for management relied upon case laws reported as (i) Deputy Collector and Chairman, Mosque Makarba Committee, Junagadh & Anr. Vs. Mohamad Farooqi Rizvi Khatib 2006 LAB. I. C. 1454; (ii) Director, E.S.I. Corporation Vs. Parmar Maheshbhai Devjibhai Son 2007 III CLR 913; (iii) Balbir Singh Vs. Nika Ram and Others 2006 - II - LLJ310; (iv) U. P. State Road Transport Corporation Vs. State of U. P, & Ors. 2002IVLLJ (Suppl.)NOC9 and (v) H. P. State Electricity Board and Anr. Vs. Ranjeet Singh and Ors. 2008 LLR 765. I have gone through material available on judicial file very carefully. Case laws relied upon by ld. counsel for management also perused.
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4. Workman has filed this labour court application under section 33 C (2) of the Industrial Disputes Act, 1947 for recovery of Rs.90,176/ towards no. (i) service compensation @ 15 days per annum since June 1995 till 23.09.2011; (ii) leave wages @ 15 days per annum for the year 2010 - 2011; (iii) Bonus @ 8.33% per annum for the year 2010 2011; (iv) Notice pay - one month and (v) litigation expenses. Workman in the labour court application has made averments regarding illegal termination of his services by the management and closure of the establishment by the management. However, workman has further alleged that he is entitled to abovesaid amount as the establishment of the management has been closed. No prayer has been made by the workman qua alleged illegality on the part of the management in terminating the services of the workman. There is no dispute regarding existence of relationship of employer and employee between the management and workman. Admittedly management did close the establishment of management. A Management has also pleaded that workman left the services of the management on 23.09.2011. A Corrected as -
"Management has also pleaded that workman rejoined services on 13.10.2008 and worked till 17.07.2011."
Ld. Counsel for workman submitted that he has filed this labour court application for recovery of compensation payable to workman in case of closing down of establishment of management in terms of section 25FFF of the Industrial Disputes Act, 1947. Pith and substance of the averments and prayer made by the workman in the labour court application lead the Court, prima facie, to the conclusion that workman through the application in hand wants to enforce his right to compensation under section 25 FFF of the Industrial Disputes Act, 1947. Right under section 25 FFF of the Industrial Disputes Act, 1947 is a statutory right of the workman and, in my considered opinion, workman can always file a labour court application for enforcing his statutory right to compensation under section 25 FFF of the Industrial Disputes Act, 1947. The case laws relied upon by ld. counsel for management are of no help to the management in the totality of the facts and circumstances of this case. The labour court application filed by the workman cannot be dismissed / rejected outrightly at this state itself merely because management has disputed the claims made by workman in labour court application in view of above observations made in para. 16 of the judgment of Hon'ble Supreme Court of India in the Central Bank of India Vs. P. S. Rajagopalan etc. MANU / SC / 0149 / 1963. It has to be kept in mind that workman herein is intending to enforce his statutory right under section 25 FFF of the Industrial Disputes Act, 1947 and it is not at all the case here that this Court is to adjudicate upon, as such, about existence / non - existence of a right in favour of the workman. Also division bench of Hon'ble Delhi High Court in case law reported as Yad Ram (By Legal Representatives) Vs. Labour Court and Anr. MANU / DE / 0382 / 1973 has held that a labour court application filed by workman under section 33 C (2) of the Industrial Disputes Act, 1947 cannot be outrightly dismissed merely because employer has denied the existence of employer - employee relationship between management and workman. Maintainability of a labour court application is to be decided on the basis of averments made in such application and not on the basis of stand taken by the management in the reply. Here claim for notice pay and service compensation is based on section 25 FFF of the Industrial Disputes Act, 1947. Right, as such, to leave wages and bonus as prayed for in the labour court application is not disputed in the WS of the management; rather stand of the management is that same has been paid by the management in the labour office. Hon'ble Delhi High Court in case law reported as Bharat Krishak Samaj Vs. N. L. Kakkar and Ors. MANU / DE / 0265 / 1983 has observed as under: "(10) The matter of computation is a function which has been specifically assigned to the labour court by the Act. The labour court by reason of the express provision is clothed with jurisdiction to deal not only with matters set Page no. 6 of 8 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/09.09.2016 Janak Sharma Vs. M/s. S.P.Engineering Products India LCA No. 1353/16 out in second schedule but also perform other functions assigned to it under the Act. So if an application under section 33 C (2) is competent, there is no reason why the labour court cannot entertain it. The Second and the Third Schedules to the Act would become relevant and the jurisdiction connected with the matters enumerated in those Schedules would spring into existence only when there is an industrial dispute. When there is no industrial dispute at all, there is no scope for referring either to the second schedule or to the third schedule (See S. A. Elecy. Distribution co. Vs. Elumalai and ors. 1959 1 LLJ 624)...."
The case law H. P. State Electricity Board and Anr. Vs. Ranjeet Singh and Ors. 2008 LLR 765 relied upon by ld. counsel for management has no application in this case inasmuch as it pertains to a "reference case" under section 10 of the Industrial Disputes Act, 1947 . Right to litigation expenses is also statutory right of the workman under section 11 (7) of the Industrial Disputes Act, 1947. In view of above all discussion, in my considered opinion, issue no.1 as framed on 31.10.2013 cannot be treated as a preliminary issue and decided forthwith. Application in hand accordingly is hereby dismissed as meritless.'' After abovesaid detailed order there has been no change in the material available on Judicial file inasmuch as neither the workman has been cross examined by the management nor management has led any evidence. That being so, management can be said to have failed to discharge the onus regarding this issue. For the reasons already indicated in order dated 29.04.2016, this issue is decided in favour of workman and against the management.
ISSUE NO. 2Whether workman is entitled to amount as claimed in para 5 of the claim or any other amount? OPW.
Here evidence led by workman can be said to have gone unrebutted/uncontroverted inasmuch as neither the workman has been crossexamined nor management has led any evidence. Mere filing of WS by management does not serve any purpose. Here this court finds no reason to disbelieve the unrebutted/uncontroverted depositions made by workman in his evidence affidavit and workman is held to be entitled to recover a sum of Rs. 90,176/ from the management as prayed for . ISSUE NO. 3: Relief.
Workman is entitled to recover Rs. 90,176/ from the management but workman is not entitled to recover interest/penalty, as prayed for, for want of legal Page no. 7 of 8 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/09.09.2016 Janak Sharma Vs. M/s. S.P.Engineering Products India LCA No. 1353/16 provision in that regard qua proceedings u/s. 33 C (2) of the Industrial Disputes Act, 1947. ORDERED ACCORDINGLY.
8. Copy of this decision be sent to Office of the concerned Deputy Labour Commissioner for further necessary action in terms of section 33 C (4) of the Industrial Disputes Act, 1947.
9. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 09.09.2016
(ANAND SWAROOP AGGARWAL)
POLCXI: Karkardooma Courts: Delhi+
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