Delhi District Court
Workman vs . on 20 December, 2011
IN THE COURT OF SH. MAHAVIR SINGHAL: POIT,
KARKARDOOMA COURTS, DELHI
Comp No. 91/05
Workman
Sh. Dharminder Singh, s/o Sh. Rudrapal Singh, r/o E 4/3, Police Colony,
Andrews Ganj, New Delhi 110049, working as Guard at Udyan Marg, CNG
Station, New Delhi owned by Indraprastha Gas Ltd., Dr.Gopal Das Building,
14,15 floor, 29, Barakhamba Road, New Delhi, represented by Vyapar Tatha
Udyog Karamchari Sangh (Regd. )
Vs.
Management
1. M/s Indraprastha Gas Limited through its Managing Director Sh. Anil
Kumar De.
2. Sh. Anil Kumar De (Managing Director)
3. Sh. Devashish Bhrama G.M. (H.R.)
4. Sh. Ashim Batra (GM) Marketing,
5. Sh. Vikas Upadhyay (Marketing Manager)
6. Sh. Vivek Mathur (Supervisor)
at Indraprastha Gas Ltd., Dr.Gopal Das Building, 14,15 floor, 29,
Barakhamba Road, New Delhi, also at Udhyan Marg, CNG Station,
Udyan Marg, DIZ Area, Gole Market, N. Delhi,
Date of institution 04.06.2005
Date of reserving award 07.12.2011.
Date of award 20.12.2011
AWARD
1. Workman has filed the present complaint u/s 33-A r/w Section
10(4A) of Industrial Disputes Act for terminating the services of
workmen/complainant without permission during pendency of Industrial
Dispute No.99/2003 before this Hon'ble Court.
Comp No.91/05 Page 1 of 12
2. It is stated in the present complaint that I.D. No.99/03 is pending
before this Tribunal for regularisation of workman with management no.1.
It is stated that complainant was employed with management no.1 as
Guard since 15.8.2001 on regular basis at a salary of Rs.3980 pm and that
complainant alongwith other workmen has preferred an industrial dispute
no.99/03 for regularization of his service with management no.1. It is
further submitted that another industrial dispute No66/03 regarding
general demand on behalf of complainant alongwith other workmen is also
pending before Labour Court.
3. It is submitted that workman was suspended by Respondent no.5
Vikas Upadhyay (Marketing Manager) on the allegations that the complainant was involved in the case of theft of Gas from Dispensers. It is submitted that the Gas cannot be put into pocket and the dispensars are electronic device and tamper proof and moreover the workman was guard only having no access to the gas dispensars. It is submitted that the management lodged a police complaint against the complainant in this regard, in which the charges were not found to be true and therefore, it is submitted that after the exoneration from the charges, the complainant becomes entitled for reinstatement with full back wages of the suspension period with consequential benefits. It is submitted that workman also filed Comp No.91/05 Page 2 of 12 a representation to the management in this regard, but the same was not responded. It is submitted that the suspension of workman is wholly illegal and that no show cause notice has been given to him. It is submitted that aggrieved from the action of management, workman approached this Hon'ble Tribunal for seeking justice, to which management filed reply on 12.9.05, in which it was stated that the applicant had himself abandoned his job. After perusing the reply complainant approached Sh. Vikas Upadhyay on 13.9.05 apprising that he has not abandoned his job and ready to join the duty but he was not allowed to do so.
4. It is submitted that the management has terminated/ retrenched the services of complainant in violation of provisions of Section 25F of ID Act. It is, therefore, prayed that retrenchment/ termination of complainant from srevice be held illegal and reinstatement be granted with full back wages at original salary. Costs of the application has also been prayed for.
5. In reply filed by the respondent/managements no.1 to 5 to the present complaint, it is claimant was never engaged by management no.1, but was engaged by contractor namely M/s Vivek Enterprises. It is submitted that respondent no.2 to 5 are executives of respondent no.1 and as such claim against respondents no.2 to 4 is baseless. It is submitted that complainant has made respondent no.6 as a party, who is a contractor, Comp No.91/05 Page 3 of 12 under whose supervision and control complainant is still working. It is submitted that Sh. Vivek Mathur is sole proprietor of M/s Vivek Enterprises for providing service. It is submitted that in the present case there is no contravention of Section 33 of the I.D. Act. It is submitted that there is contract agreement between M/s Indraprastha Gas Ltd and M/s Vivek Enterprises. It is submitted that M/s Indraprastha Gas Limited is the principal employer having Registration Certificate under CLRA Act and the contractor namely Vivek Enterprises has the license. All other allegations made in the present complaint have been denied by the respondents/ managements.
6. In reply filed by respondent / management no.6, it is submitted that since, the complainant is no where a party to the dispute ID No.99/03, therefore, the present complaint is not maintainable. It is submitted that the complainant was engaged by respondent no.6 as temporary Guard due to temporary pressure of work and that he was working under direct supervision and control of respondent no.6. Itis submitted that w.e.f. 25.4.05, the complainant abandoned the job of his own without prior permission or information, therefore, the management no.6 has never violated the provisions of I.D. Act. It is submitted that there is a Comp No.91/05 Page 4 of 12 contract between management no.1 and management no.6 and that management no.1 is the principal employer having Registration certificate under the CLRA Act. All the allegation made against management no.5 have been denied.
7. Complainant has filed two rejoinders, one to the reply of respondent no.1 to 5 and another to the reply of respondent no.6, wherein he has reiterated the contentions made in the complaint and have denied all the averments made in the replies of respondents.
8. On the basis of pleadings of the parties, following issue was framed by my Ld Predecessor vide order dated 18.08.2007:-
1. Whether there exists relationship of employer and employee between the claimant and management no.1 to 5? OPW
2. Whether the application u/s 33-A is not maintainable? OPM
3. Whether the complaint is bad for mis-joinder of respondents no.2 to 5? OPM
4. Whether the claimant had abandoned the job of his own without prior permission or information of management no.6, if so, it effect? Comp No.91/05 Page 5 of 12
OPM
5. Relief.
9. Workman examined himself as CW1. In his examination-in-chief, he has reiterated the contents of his complaint. In his cross-examination, he has admitted that he was not issued any appointment letter by M/s IGL and that he did not write any letter to M/s IGL for appointment letter. It is deposed that he has no document to show his employment with IGL. It is denied that Mr. Vivek Mathur on behalf of M/s Vivek Enterprises used to pay wages to the employees. A suggestion was put to WW 1 that his services were not removed by Mr. Vikas Upadhyay, to which WW 1 replied that both Vivek Mathur and Vikas Upadhyay have removed his service but he has no documentary proof as no such orders were given to him. It is admitted that he did not ask them to give order in writing. It is admitted that he was not issued removal letter by M/s IGL.
10. Management has examined Sh. Ashim Batra, chief General Manager of management no.1 as MW 1. In his examination-in-chief, he has reiterated the contentions made in the reply. In his cross- examination, he has denied that complainant was employed by management no.1. It is denied that services of complainant were Comp No.91/05 Page 6 of 12 terminated during the pendency industrial dispute knowingly. It is denied that provisions of Section 33-A have been violated.
11. MW 2 Sh. Om Prakash, Sr. SSA Office of Regional Provident Fund Commissioner, has proved on some record pertaining to M/s Vivek Enterprises as Ex. MW2/1. In his cross-examination, he has deposed that as per the record, the said concern was registered with their department. It is further deposed that name of workman Dharmender Singh has been mentioned in the said documents.
12. MW 3 Sh. Mohan Singh, LDC from ESIC Kalkaji, N. Delhi has proved some documents as Ex. ME3/1 to 3/3. In his cross- examination, he has denied that date of employment of workman on Ex. MW3/1 was written later on in different pen. It is denied that documents filed by him were prepared by management.
13. I have gone through the written submissions filed on behalf of complainant. No oral arguments were advanced earlier by either of the parties. However, on an application moved by the management of M/s Indraprastha Gas Limited, arguments on its behalf were heard on 19.12.2011. I have carefully gone through record of the case. My findings on the issues are as under :-
14. Findings on issue No 1 Comp No.91/05 Page 7 of 12 Issue no.1 is Whether there exists relationship of employer and employee between the claimant and management no.1 to 5? OPW Issue no.2 is Whether the application u/s 33-A is not maintainable?
OPM
15. MW 1 Sh. Ashim Batra, Chief General Manager of management no.1 has has proved on record Ex. MW1/2, which is agreement executed between management no.1 and M/s Vivek Enterprises. As per this agreement, Operator i.e. M/s Vivek Enterprises shall provide services to management no.1, which is in the business of dispensing CNG to automobiles and supplying Piped Natural Gas to domestic and commercial customers. A per term no.6(g) of the agreement, the Operator can appoint his personnel including Security Guard on a fixed term co-terminus with the agreement period.
16. From the above agreement, it is clear that the personnel for providing service to management no.1 shall be provided by Operator/ Contractor M/s Vivek Enterprises.
17. MW 1 has also proved on record copy of Letter Ex. MW1/6, issued by Regional Provident Fund Commissioner dated 29.5.03 to M/s Vivek Enterprises regarding applicability of Employees' Provident Funds and Miscellaneous Provisions Act, 1952. Comp No.91/05 Page 8 of 12
18. From the above discussion and documents Ex. MW 1/2 and Ex.
MW1/6, it is clear that there was agreement between management no.1 and Vivek Enterprises that personnel shall be provided by M/s Vivek Enterprises for the services to be rendered at CNG station of management no.1. Thus, it is revealed that power to appoint workers including Driver Sales Man, the designation of workman herein, was with M/s Vivek Enterprises, the contractor. Hence, it is held that complainant/workman is in the employment of respondent no.6, Mr. Vivek Mathur, the contractor and proprietor of M/s Vivek Enterprises and not in the employment of management no.1 M/s Indraprastha Gas Ltd. Thus, it is held that claimant is not employee of respondents no.1 to 5. Issue no.1 is decided accordingly.
19. Findings on issue no.2 Issue no.2 is Whether the application u/s 33-A is not maintainable? OPM
20. Section 33-A of I.D. Act speaks about change of service condition during the pendency of an industrial dispute. As per case of complainant/ workman, ID. No.99/03 is pending disposal, during which his service conditions were changed. However, it is worth noting that in I.D. No.99/03, said M/s Vivek Enterprises, of which Comp No.91/05 Page 9 of 12 complainant is employee, has not been made party. Therefore, it is clear that no industrial dispute is pending against M/s Vivek Enterprises. Since, no industrial dispute is pending against M/s Vivek Enterprises, the employer of complainant, the question of contravention of provisions of Section 33-A of ID Act does not arise. Accordingly, it is held that services of the complainant were not terminated by the respondent/ management in violation of Section 33- A of I.D. Act and accordingly, the application u/s 33-A of I.D. Act is held to be not maintainable. Issue no.2 is decided accordingly.
21. Findings on issue no.3 Issue no.3 is Whether the complaint is bad for mis-joinder of respondents no.2 to 5? OPM
22. In para 10 of Statement of claim, specific allegations have been made against Respondents no.4 and 5 regarding not allowing the complainant to resume his duties. Respondent no.2 is Managing Director of Respondent no.1. Respondent no. 1 is the main respondent in the present case, of whom claimant alleges to be its employee. Thus, in my considered opinion, present claim against respondents no.2,4, and 5 is not bad for mis joinder of parties. However, as regards and Respondent No.3, who is General Manager (HR) of respondent Comp No.91/05 Page 10 of 12 no.1, I do not find any need or relevancy to make him party as no specific allegation has been made against him.
23. Accordingly, it is held that complaint is not bad for misjoinder of respondents no.2 to 5, except respondent no.3. This issue is decided accordingly.
24. Findings on issue no.4 Issue no.4 is Whether the claimant had abandoned the job of his own without prior permission or information of management no.6, if so, it effect? OPM
25. No evidence has been brought on record to the effect that complainant had himself abandoned his job without the permission of respondent no.6. Management has not been able to prove this fact by bringing cogent evidence on record. Accordingly, this issue is decided in favour of workman and against the management.
26. Relief.
In view of my findings on issue no.1 and 2, complainant/ workman is not entitled for any relief. Award is passed accordingly.
27. Copy of award be sent to GNCT of Delhi for publication. File be consigned to record room.
Announced in open court Comp No.91/05 Page 11 of 12 on 20.12.2011 (MAHAVIR SINGHAL) Presiding Officer, Industrial Tribunal Karkardooma Courts, Delhi. Comp No.91/05 Page 12 of 12