Delhi District Court
The National Capital Territory Of Delhi vs / Intejam on 25 May, 2010
1
IN THE COURT OF SH. DAYA PRAKASH: PRESIDING OFFICER LABOUR
COURT NO. XVI: KARKARDOOMA COURTS : DELHI
ID NO. 567/06
1.Sh. Manvir Shah S/o Sh. Shambhu Shah
2. Sh. Anil Kumar S/o Sh. Rameshwar Singh C/o Modern Food Industries Karamchari Union (Regd.) E7, Gandhi Vihar Near Mukherjee Nagar Delhi. ...... Workmen VERSUS The Management of Modern Food Industries (I) ltd.
Delhi Bread UnitI
B48, Lawrence Road Industrial Area
Ring Road,
New Delhi. ...... Management
Date of Institution : 14.12.04
Judgment reserved : 05.05.10
Date of decision : 25.05.10
A W A R D
1. The National Capital Territory of Delhi, through its Secretary (Labour) vide reference no. F24(1738)/2004/Lab./6575790 dated 12.10.04 referred the ID No.567/06 1/17 2 dispute for adjudication between the Management M/s Modern Food Industries (I) ltd. and its workmen Sh. Manvir Shah and Sh. Anil Kumar in the following terms of reference:
"Whether the services of Sh. Manvir Shah S/o Sh. Shambhu Shah and Sh. Anil Kumar S/o Sh. Rameshwar Singh have been terminated illegally and/or unjustifiably by the management and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. As per claim, the workmen were engaged by the management and were continuously employed at Delhi Bread UnitI, Lawrence road, New Delhi. It is stated that the workmen Manvir Shah and Anil Kumar were engaged on 25.08.85 and 12.07.85 respectively as casual workers but were employed as an Operator at Delhi Bread UnitI by the management and they were paid wages of the casual workmen at the rates of the wages prescribed by the Delhi Govt. at that time. It is stated that workmen Manvir Shah and Anil Kumar continuou8sly worked with the management till 22.02.93 and 31.08.93 respectively. It is further stated that the workmen were working diligently and had the unblemished record of service during their tenure with the management. It is further stated that the workmen were regularly pursuing and demanding their legitimate rights qua the appointment, regularization of their services on the particular post they were performing their duties and other facilities permissible under the labour laws. It is further stated that the management got annoyed and did not allow the workmen to join their duties on 23.02.93 and 01.09.93 respectively. It is further stated that the workmen regularly pursued the management against their illegal termination ID No.567/06 2/17 3 and wrote various letters to the management demanding their reinstatement but however, even on the receipt of those letters, the management did not pay any heed to their legitimate demands. Hence, workman on 10.02.03 finally submitted their demand notices to the management which were duly received by the management. It is further stated that the management on 28.02.03 gave fake reply to the same demanding the details and the particulars of the respective workmen. It is further stated that the workmen then left with no alternative raised the dispute before the office of the concerned Dy. Labour Commissioner. The Labour Inspector alongwith these workmen visited the management and directed the management to take these workmen on duty. However, management refused to take the workmen on duty and suggested them to raise the dispute before appropriate authority. Then the workmen raised dispute by filing statement of claim before the concerned Conciliation Officer on 21.11.03. the management duly appeared before the Conciliation Officer but no settlement arrived at between the parties and Conciliation Officer submitted the failure report and the appropriate government has referred the matter to the Hon'ble Court. It is further stated that the workmen are unemployed since the date of their illegal termination by the management and despite various efforts they were unable to get the job. It is prayed that the workmen be granted reinstatement with continuity of service with full back wages.
3. Notice of the claim was sent to the management. Management filed its reply wherein it is stated that the applicants are not entitled for any relief as the applicants were never the regular employee with the management nor they have worked for continuous period of 240 days in the preceding year and has no right ID No.567/06 3/17 4 under the Industrial Dispute to raise any claim. It is further stated that the statement of claim is also vague and silent about their appointment and the wages which they were drawing from the management and it is also silent that for how many days they have worked during the relevant period. According to the records available with the management, in none of the years they have been in continuous service with the alleged management and the details of their attendance are being annexed herewith which depicts that the applicants were being taken against against the casual vacancy arising of in the absence of the regular employee and as such the applicant have got no legal right to claim relief from this court under the I.D. Act. It is further stated that there is no relationship of employer and employee between the present applicants and the management and as such the claim is not maintainable.
In reply on merits, it is submitted that the excasual workmen Sh. Manvir Shah and Anil Kumar were working as casual employee engaged against the absenteeism of regular workers or for any temporary nature of work based on need. It is stated that casuals are engaged wherever required and they are not given any designation. It is, therefore, not correct that they were engaged as Operator. It is further stated that Sh. Manvir Shah and Sh. Anil Kumar, like other casuals were paid the minimum wages as prescribed by the State Govt. It is denied that the workmen were working since 25.08.85 and 12.07.85 respectively. It is once again reiterated that it was decision of the excasual workmen not to pursue their casual service, hence they stopped coming the union on their own and accordingly there was no illegal termination of the services of the excasual workmen as alleged. Even if it was an illegal termination of their services on the part of the management w.e.f. 23.02.93 and 01.09.93 what stopped them from ID No.567/06 4/17 5 pursuing their case for the last 1012 years. It is further stated that excasual workmen had not written any letters to the management seeking employment till 09.02.03 i.e. after a gap of 1012 years. Hence, the management was not under the obligation to entertain any claim after 1012 years and that too after when the excasual workmen had taken a decision not to pursue their casual employment. It is further stated that the excasual workmen herein have not explained as to how they remained unemployed for 13 years and why did they not raise any claim for such a long period for 1012 years.
4. Subsequently, Rejoinder to the WS of the management was filed wherein the workman has denied the allegations made in the WS and reiterated the averments contained in the claim.
5. After completion of pleadings, following issues were framed on 29.10.05:
1. Whether there existed relationship of employer and employee between the management and the workman?
2. Whether the workmen worked with the management continuously for more than 240 days in the preceding years?
3. Whether the claim is not maintainable as filed with inordinate delay and barred by principle of waiver, acquiescence and estoppal as pleaded in preliminary objection no.1 of the WS?
4. As per terms of reference.
6. After framing of issues, case was adjourned for WE. Workman Manvir ID No.567/06 5/17 6 Shah examined as WW1 and Anil Kumar as WW2.
7. WW1, in his examination in chief, supported the averments made n the claim and got exhibited the documents as Ex. WW1/1 to WW1/21.
In his cross examination, he deposed that no appointment letter was given by the management. He deposed that he was directed by Employment Exchange, Curzon Road to go to management for interview and he went there. He stated that he was interviewed and was appointed for the post of operator. He further deposed that he did not have any document in this regard as he had submitted the file with the management which was given by the Employment Exchange. he deposed that there were about 55 persons who were directed by the Employment Exchange to go for interview and all were interviewed and selected. He stated that he was doing the work of operating machines in the management for the purpose of manufacturing bread. he stated that he also used to do job at Oven and slicing machine. He further stated that he used to work for eight hours in shifts. he deposed that he used to get wages as per Minimum Wages Act as applicable in Delhi from time to time. Initially, in the morning shift, he was paid at Rs. 11/ and in the noon shift @ 12/ and in the th night shift Rs. 13/. He deposed that he used to get wages monthly on 7 of each month. He stated that his attendance used to be marked by the management in attendance register maintained by them. He deposed that he had worked continuously from the year 1985 till 1993. He suggested it wrong that management appointed him as regular employee. He further suggested it wrong that whenever management was required to do some exigency of work, he used to be given job by the management. He deposed that he was not given any termination letter and no amount was paid regarding any wages or any ID No.567/06 6/17 7 compensation. He deposed that he started writing letters to the General Manager of the management for taking him back on duty from 28.02.95 but management did not used to received his letters. Thereafter, he sent letters through post to the management. He suggested it wrong that first time he had written letter to the management in the year 2003. He deposed that he had received letter Ex.WW1/17 from the management. He further deposed that he had given to the management ESI card and leave book in pursuance of letter Ex. WW1/17. He deposed that his PF used to be deducted from his salary as per the percentage but no PF slip was given by the management. He deposed that at present the factory is closed, however, he did not know when it was closed. He suggested it wrong that the letters Ex. WW1/2, WW1/4, WW1/7, WW1/8, WW1/10, WW1/13 and WW1/14 were never sent by him to the management and were prepared for producing the same before the court.
8. During the course of proceedings, workman Manvir Shah died and an application had been moved for substituting LRs of deceased workman Manvir Shah. The application was allowed by Ld. Predecessor of this court and case was adjourned for filing amended memo of parties. Despite repeated directions, amended memo of parties has not been filed till date.
9. WW2, Sh. Anil Kumar in his examination in chief, supported the averments made in the claim and got exhibited the documents as Ex. WW2/1 to WW2/5.
In cross examination, he deposed that no appointment letter was issued by the management for engaging him w.e.f. 12.07.85. He deposed that he had never demanded appointment letter. He also stated that he was recommended ID No.567/06 7/17 8 by the Employment Exchange for the appointment as a Operator. He stated that he was working on machine for preparing Bread. He stated that he had not undergone any training for operating machine. He further stated that his ESI contribution was deducted from his salary upto 1993. He deposed that he cannot tell how many days he worked between 1985 to 1993 but he can tell the months and years. He deposed that he had worked approximately 8 years and intentionally he used to give break of three months and sometimes about six months. He deposed that he had given representation in writing after about six months from the date of his termination to the management, however, he did not remember the dates of his representations. He admitted that he had not filed any representation made in writing after the period of six months of his termination. He deposed that he was paid Rs. 350/ per month. He further deposed that he used to work 8 hours in a day and his duty hours were shift wise i.e. 6 am to 2 pm, 2 pm to 10 pm and 10 pm to 6 am. He suggested it wrong that management required casual worker in some exigency of work. He further suggested it wrong that the letter as alleged have been forged/prepared by him for the present case and he had not written any letter. He admitted that first time he had written the letter to the management in the year 2003. He further admitted that the letter Ex. WW2/5has been received by him from the management. He deposed that his PF used to be deducted from the salary but he cannot tell the percentage of the same. He admitted that the present factory has been closed. He suggested it wrong that the report Ex. WW1/8 has been procured by him with the collusion of Labour Inspector.
10. MW1 Sh. V.K.Rastogi, in his examination in chief, supported the ID No.567/06 8/17 9 averments mentioned in the WS and got exhibited the documents Ex. MW1/1 to MW1/6 and mark A. In cross examination of MW1, he stated that he is working with Modern Food Industries Ltd. now known as Hindustan Unilever Ltd. w.e.f December 1983. He deposed that in February 2000 under the disinvestment scheme of Govt. of India, the company Modern Food Industries Ltd. has been given to Hindustan Lever Ltd. and all the assets and liabilities of Modern Food Industries Ltd. were taken over by the Hindustan Lever Ltd. He deposed that the present workmen were working as a casual employees with Modern Food Industries Ltd. He further deposed that the facilities for which a casual employee is entitled were given to the workmen during their working with Modern Food Industries Ltd. He stated that there is no need for any notice for terminating a casual employee. He suggested it wrong that our company willfully does not allow the present workmen to complete 240 days. He further suggested it wrong that the company is still liable to pay the statutory dues of these workmen.
11. Written arguments filed on behalf of workmen. It is stated in the written arguments that the management intentionally and deliberately never issued any appointment letter to the workmen specially to the casual workers and issued the appointment letter only to regular worker. It is further stated that the management violated the provisions of Section 25F of I.D. Act while terminating both the workmen. It is further stated that both the workmen had made a lot of written representation to the management and the same are also exhibited as Ex. WW1/2 to WW1/15. The ESI Card and Leave Book is also exhibited as Ex. WW1/1 to WW2/1A. It is further stated that the workman Anil Kumar had also ID No.567/06 9/17 10 exhibited his ESI Card issued by the management as Ex. WW2/1 and the letter which was written by the workman Anil Kumar as Ex. WW2/2, UPC Ex. WW2/3 and the letters as Ex. WW2/4 to WW2/15. It is further stated that from the records, arguments and even the evidence filed by both the parties, it is clearly evident that the present management is liable to pay the back wages as well as the relief as claimed and submits that the workmen are entitled for the same. The present management is now looked by the Hindustan Unilever Ltd. but they are liable for the liabilities which are pertaining to the Modern Food Industries (India) Ltd. It is further stated that the judgment and the citations filed by the management is not applicable to the present case. However, the workmen are filing the cutting of the newspaper in which Hon'ble Supreme Court had given the benefits to the casual workers and besides this, the workmen is also submitting the record of casual worker in which the present management had given legal benefits to that workman.
AR for management addressed oral arguments. It is argued by AR for management that both the workmen were never the regular employees with the management nor they have worked for continuous period of 240 days in any year. It is further argued that both the workmen usually engaged only on exigency of work with the management. It is further stated that the workmen had not written any letters to the management seeking employment till 09.02.03. It is argued by AR for management that the silence of 1012 years has not been explained by both the workmen. It is stated that both the workmen admitted in their cross examination that they had not been given any appointment letter from the management. It is stated that workmen are not entitled for any relief since ID No.567/06 10/17 11 there existed no relationship of employeremployee between the workman and the management.
AR for management filed following citations:
Rajasthan Tourism Development Corporation Ltd. & Anr Vs/ Intejam Alizafri (2006) 6 SCC 275 Karnataka Power Corporation Ltd. Vs. K.Thankgappan & Anr. (2006) 4 SCC 322 Haryana State Corporation Land Development Bank Vs. Neelam (2005) 5 SCC 91.
U.P.State Road Transport Corporation Vs. Babu Ram (2006) 5 SCC
433. Krishna Bhagya Jal Nigam Ld. Vs. Md. Rafi (2006) 9 SCC 697
12. I have seen the file, claim and reply and my findings on the issues are as follows:
Regarding issue no.1 : Whether there existed relationship of employeeemployer between the workman and the management?
Perusal of statement claim, reply, rejoinder, evidence and documents on record, my inference is that the it has been safely proved that there existed relationship of employer and employee between the workmen and the management:
i) Previously, the management was running in the name of M/s Modern ID No.567/06 11/17 12 Food Industries Ltd and now it is known as Hindustan Unilver Ltd. since December 1983. Under the disinvestment scheme of Govt. of India, the company Modern Food Industries Ltd. was given to Hindustan Unilever Ltd. and all the assets and liabilities of Modern Food Industries were taken over by Hindustan Unilever Ltd. M/s Hindustan Unilever Ltd. tried to avoid the liability stating that there existed no relationship of employer and employee between the workmen and the management. By oral and documentary evidence, it is proved that the workmen were working with Modern Food Industries and the present company has taken over by Hindustan Unilever Ltd. with all assets and liabilities.
ii) The witness appeared on behalf of management during his cross examination admitted that workmen worked under Modern Food Industries. It may be that their nature of work may be of different kind than the regular workers.
Accordingly, it is held that there existed relationship of employee and employer between the workmen and the management.
13. Regarding issue no.2: Whether the workmen worked with the management continuously for more than 240 days in the preceding year.
From the claim, reply and evidence on record, my inference is that the workmen has failed to prove that they worked with the management continuously for more than 240 days in the preceding years on following grounds:
i) Admittedly, no appointment letter was issued ever to the workmen nor ID No.567/06 12/17 13 any termination letter was given to them. Hence, the date of joining and date of termination is not proved.
ii) The workmen states that they worked under the management continuously from 25.08.85 and 12.07.85. The stand of the management is that the workmen were merely Badli workers meaning thereby that they used to come at the gate of the factory everyday and keeping in view the absenting employee, they used to be taken for any job on day to day basis. Workmen as Badli workers used to be paid on the basis of the day, he performed his duties. One of the workmen i.e. Manvir Shah has filed the leave book Ex. WW1/17 which is from January 1991 to December 1991. This leave book card shows that workman Manvir Shah worked with the management in 1991 in the month of January for 29 days, in February for 26 days, in March for 29 days and in April for 25 days and thereafter, there is no attendance of the workman. This shows that the leave book for each year was provided to the workman and they have not filed the same in the court. On the other hand, the management in their evidence has filed Ex. MW1/4 which is a statement showing the actual attendance of Anil Kumar. Ex. MW1/5 which again shows the statement of actual attendance of Manvir Shah. Perusal of Ex. MW1/4 which is the attendance sheet of Anil Kumar shows that from the date of joining till the end of 1985, he worked only for 59 days.
Similarly, he worked in 1986 for 82 days, in 1987 for 151 days, 1988 for 111 days, 1989 for 124 days, 1990 for 31 days, 1991 for 58 days, 1992 for 61 days and till September 1993 for 42 days. Ex. MW1/5 which is ID No.567/06 13/17 14 with respect to the actual attendance of workman Manvir Shah, shows that in the year 1985, he worked only for 48 days, in 1986 for 36 days, in 1987 for 66 days, in 1988 for 55 days, in 1989 for 62 days, in 1990 for 15 days, in 1991 for 109 days, in 1992 for 175 days and till 22.02.93 merely 11 days. Perusal of Ex. MW1/4 and Ex. MW1/5 shows that in none of the years, workmen completed 240 days. Ex. MW1/4 and MW1/5 are duly proved and could not be shaken in the cross examination by the workmen. Hence, stands proved.
iii) AR for management cited Rajasthan Tourism Development Corporation Ltd. & Anr Vs/ Intejam Alizafri (2006) 6 SCC 275, wherein it was held that:
"Condition precedent for attracting Section 25F and 25B is that the workman must have worked for 240 days continuously in one calender year."
Similarly in Krishna Bhagya Jal Nigam Ld. Vs. Md. Rafi (2006) 9 SCC 697, it was held that:
"the burden of proof lies on the workmen to prove that he worked continuously for 240 days in a year."
In workmen of Nilgiri Coop. Mkt. Society Ltd. 2004 3 SCC 514, it has been held that :
"It is a well settled principle of law that the person who sets up a plea of existence of relationship of employer ID No.567/06 14/17 15 and employee, the burden would be upon him."
In Bhogpur Cooperative Sugar Mills Ltd. Vs. Huarmesh Kumar 2007 LLR 183 SC, the Hon'ble Apex court held that :
"For applicability of Section 25 F of I.D. Act, the workman is bound to prove that he had been in continuous service of 240 days during twelve months preceding the order of termination."
14. Regarding issue no.3 : Whether the claim is not maintainable as filed with inordinate delay and barred by principle of waiver, acquiescence and estoppal as pleaded in preliminary objection no.1 of the WS?
On the basis of claim, reply and documents on record, my inference is that the claim is not maintainable as filed with inordinate delay and barred by principle of waiver, acquiescence and estoppal as pleaded in preliminary objection no.1 of the WS on the following grounds:
i) AR for workman stated that the law of limitation is not applicable in the I.D. Act particularly where the reference is made by the competent Govt.
On the other hand, it is stated by AR for management that the delay is one of the ground for refusing the relief to the workmen and in this case, there is such a long delay and the workmen are not entitled for any relief.
ii) AR for management cited Karnataka Power Corporation Ltd. Vs. K.Thankgappan & Anr. (2006) 4 SCC 322 wherein it was held that : ID No.567/06 15/17
16 "Inordinate delay in invoking jurisdiction to claim employment U/s 12 of I.D. Act and where delay has not been satisfactorily explained, relief cannot be granted."
iii) Similarly, in Haryana State Corporation Land Development Bank Vs. Neelam (2005) 5 SCC 91, it was held that:
"court cannot import a limitation period when statue does not prescribe the same, it does not mean that irrespective of facts and circumstances of each case, a stale claim must be entertained and relief granted by the authority concerned under the ID Act."
iv) The year of termination as alleged by both the workmen is 1993 i.e. 12.02.93 for Manvir Shah and 31.08.93 for Anil Kumar. The demand notice was served on 10.02.03. It is an admitted fact that no demand notice was earlier served on the management. It is explained by the workmen that they wrote letters for reinstatement to the management. Many UPC have been placed on record but there is no receipt showing that the management has received the letter written by the workmen. However, in one case, reply was given by the management stating that they have no particulars of the workmen and workmen were directed to file necessary documents to substantiate their claim. Anyhow, the workmen started pursuing the case in the year 2003 onwards and thereafter the reference was received. The delay of almost 12 years for not taking action by the workmen, has not been explained properly.
v) It is further a fact that there is no regular appointment of the workmen in ID No.567/06 16/17 17 the management. The workmen merely worked as Badli workers in place of the workers who were absent on particular dates. Hence, there is no continuous and regular work by the workmen. The workmen have also not undergone the regular employment procedure and meanwhile the management also changed. Previously, it was a Govt. company and later on converted into private enterprises.
15. Regarding issue no.4: As per terms of reference.
It has been proved that the both the workmen have not worked with the management for 240 days continuously in the preceding years. It has also been proved that the workmen were not the regular employees under the management and merely the Badli workers. The workmen have also filed the delayed claim. Hence, question of illegal termination of the workmen does not arise and they are not entitled for any relief.
16. Award has been passed. Copies of the award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.
Announced in the Open Court (DAYA PRAKASH)
on 25th May, 2010 Additional District & Session Judge
Presiding Officer labour Court XVI
Karkardooma Courts : Delhi.
ID No.567/06 17/17