Delhi District Court
Raghuvinder Yadav S/O Shri Yogeshwar ... vs M/S Bombay Metal Industries on 23 October, 2013
IN THE COURT OF SHRI SANJAY SHARMA
PRESIDING OFFICER : LABOUR COURTXIX
KARKARDOOMA COURTS : DELHI.
LIR/D No. 91/2010
Unique Case ID No. 02402C0 099562010
Raghuvinder Yadav S/o Shri Yogeshwar Yadav
House No. 490, Tahirpur,
Shahdara
Delhi - 110 095 ..............................WORKMAN
Versus
1.M/S Bombay Metal Industries BBlock Flat No. 19, Gali No. 7 Friends Colony Industrial Area GT Road, Shahdara Delhi 110 095
2. M/S Micro Super Cables Pvt. Ltd.
BBlock Flat No. 20, Gali No. 7
Friends Colony Industrial Area
GT Road, Shahdara
Delhi 110 095 .......................MANAGEMENT
Date of institution of the case : 06.4.2010
Date for which Award reserved : 08.10.2013
Date of passing the award : 23.10.2013
A W A R D :
The workman has filed his statement of claim directly against the management while alleging that he joined the management No. 1 on 08.6.1994 LIR/D No. 91/2010 1 of 10 as Wire Drawing Machine Operator at the last drawn monthly wages of Rs. 3400/ and he had a clean service record. He alleged that he was asked to work for Management No. 1 or 2 at their convenience and that there was functional integrality, common production unit and common seniority etc. He further alleged that he was not provided appointment letter and other legal benefits and he was issued ESI Card in the name of Management No. 2 on 12.9.2002. He further alleged that when he demanded the payment as per the minimum wages, the management got annoyed and started harassing and intimidating him. He further alleged that on 07.1.2009 a raid was made by the Excise Department after which the management told the workers that the work of the company had drastically reduced and they should take leave and go home. He further alleged that he applied leave for a month on 07.10.2009 which was granted to him and on 07.11.2009 when he came back to join duty, he was refused duty on the pretext that the position was bad. He further alleged that on 16.12.2009 when he again reported for duty, the management refused to take him and he was thrown out of the premises and his services were terminated illegally. He sent a demand notice dt. 03.3.2010 but he was not reinstated in service. Hence, through this claim the workman has prayed for reinstatement in service with full back wages and continuity of service and all consequential benefits.
2. The managements appeared and opposed the claim by filing WS wherein all the allegations were refuted specifically and categorically. It was submitted on behalf of the management No. 1 that the workman never worked LIR/D No. 91/2010 2 of 10 with it and thus, the relationship of employer and employee was denied between the parties. The Management No. 2 submitted that it has since been closed down on 30.4.2009 and the workman had taken a sum of Rs.20,000/ in cash as full and final payment vide cash voucher of the said date and that his services were never terminated.
3. The claimant filed a rejoinder denying the allegations made by the management and reinstated the pleas taken by him in his claim. From the pleadings of the parties, following Issues were framed on 25.4.2012 :
1. Whether the services of the workman were illegally and unjustifiably terminated by management No. 1 and 2? OPW
2. Whether there is no relationship between the workman and Management No. 1 of employee and employer? OPM
3. Whether the workman had accepted full and final settlement of Rs.20,000/ from management No. 2 on 30.4.2009 when it closed down ?OPM
4. Relief.
4. The workman led his evidence and examined himself as WW1 and closed his evidence. The Management examined Shri Rakesh Kumar Sodhi - Manager as MW1, Shri Kishori Prasad - Accountant as MW2 and closed its evidence.
5. I have heard Shri Sunil Kumar - Ld. AR for the workman and Shri LIR/D No. 91/2010 3 of 10 JM Mittal - Ld. AR for the Management. My issuewise findings are as under :
ISSUE No. 2 :
6. The onus to prove this issue was upon the workman though the onus has been put on the management while framing the issues. It is the case of the management No. 1 that the workman was never employed with it while Management No. 2 has pleaded that though the workman was employed with it but settled his dues and took his full and final payment amounting to Rs. 20,000/ on 30.4.2009 when the said management close down .
7. The workman has claimed that both Management No. 1 and 2 have a common owner namely Shri Harish Chandra Goyal and thus, there is a functional integrality between the two managements. It is only for the sake of convenience that two separate establishments have been made though they are functioning from the same address in adjoining plots. In order to prove this fact, the workman relied upon his application filed under the RTI Act dt. 29.10.2010, Ex.WW1/6 (colly.). In response to the said application , it was informed that management No. 2 is a partnership firm having Shri Harish Chandra Goyal, Shri Mahesh Chandra Goyal and Smt. Manorama Goyal as its partners who all are residing at A15/5, Vasant Vihar, New Delhi. It was similarly informed that management No. 1 is a private limited company with Shri Harish Goyal and Shri Prem Prakash Gupta as its Directors. Infact, MW2 in his cross examination also deposed this fact in respect of Management No. 2 and also LIR/D No. 91/2010 4 of 10 admitted that both the managements are engaged in the same business. There had been no crossexamination of the workman regarding the said documents. It is, thus, clear that there is functional integrality between the two managements and it is only for the sake of records that two different establishments have been created. It is the case of the workman that he used to be asked to work for both the managements at their convenience. He also deposed that management No. 1 was maintaining two salary registers. Hence, it is irrelevant whether the workman was an employee of Management No. 1 or 2.
8. The Management No. 2 has relied upon the letter of appointment Ex.WW1/M2 as also the application for employment allegedly made by the workman Ex.WW1/M1. On both these documents the workman denied his thumb impression . The workman has appended his signatures on the claim as well as on his affidavit and his deposition before the Court. His signatures also appear on Ex.WW1/M3 which is the voucher for the full and final payment. There is no reason why he should put his thumb impression only on two documents, i.e. Ex.WW1/M1 and M2. Admittedly, these two documents have not been written in the handwriting of the workman but the person who allegedly signed the appointment letter was never examined by the management. MW2 deposed in his crossexamination that this document was prepared by him but he never said so in his examinationinchief. Thus, no reliance can be placed on these documents.
LIR/D No. 91/2010 5 of 10
9. In view of the above discussion , it is clear that the workman was having relationship of employer and employee with both the managements including Management No. 1 and this issue is accordingly decided in favour of the workman and against the management No. 1.
ISSUE No. 3 :
10. The onus to prove this issue was upon Management No. 2. In order to prove this issue, the said management heavily relied upon the voucher vide which the workman allegedly received Rs.20,000/ towards his full and final settlement Ex.WW1/M3. This document perse is highly doubtful. There is no signatures either of the Accountant or of the Manager or Director on the said voucher and the signatures of workman allegedly appear on the receipt part of the said voucher as well as at the portion meant for the signatures of the Manager or the Director. Even otherwise, comparison of these signatures with the admitted signatures of the workman on record show that they do not match with each other on comparison with naked eye. In Lalit Popli Vs. Canara Bank & ors. 2003 (2) SCT 87 it was held that evidence in report of an expert is only an opinion . It is for the Court to use it as an aid to reach its own conclusion . It was also held that irrespective of opinion of expert, the Court can compare the admitted signatures/handwriting and form own opinion if the comparison is possible with the naked eye.
11. Similarly, the intimation regarding settlement of dues with the LIR/D No. 91/2010 6 of 10 workman Ex.M2W1/1 also appears to be manipulated. The name of the present workman has been added in the last and that too almost parallel to the stamp and signatures of the official signatory. Though the signatures of the other five workers named therein are against their names over revenue stamps but for the workman, separate voucher has been attached for no obvious reasons except that there was no space underneath. It is absolutely clear from the perusal of this document that the name of the workman has been added later on .
12. MW2, who proved these document, is the Accountant of Management No. 2 and he deposed that he has been working as parttime Accountant. This means he was not a regular employee of Management No. 2 and thus, was not competent to depose before the Court. His deposition that he knew that the workman was appointed in the year 1999 as his appointment letter was prepared by him cannot be relied upon . On being further cross examined, this witness produced Ex.M2W1/5. However, that is a compressed sheet and no certificate required under Section 65B of the Evidence Act has been appended with it and hence, it cannot be relied upon .
13. As per the own documents of the management No. 2, different dates of closure has been shown . In the muster roll filed by the management Ex.M2W1/3, the management No. 2 has been shown closed after April 2009. In the letter issued to ESIC Ex.M2W1/7, the date of closure has been shown as 01.12.2009. In Ex.M2W1/1 which is a letter issued to the Conciliation Officer LIR/D No. 91/2010 7 of 10 regarding full and final payment to the workers, it has been stated that the business of the Management No. 2 suddenly got closed and as such the claims of the workers were being settled. This letter is dt. 30.4.2009, i.e. eight months prior to the date of closure mentioned in the intimation to the ESIC. Hence, there is no definite date of closure of Management No. 2 and the documents appear to be manipulated. This fact also reiterates the fact that both Management No. 1 and 2 are common entities and the possibility of the work been taken from the workman by both, as alleged by him, cannot be ruled out.
14. In view thereof, it cannot be said that the workman voluntarily accepted full and final settlement of Rs.20,000/ at the time of closure from Management No. 2. Hence, this issue is decided in favour of the workman and against the Management No. 2.
ISSUE No. 1 :
15. Once it has been held that the workman was an employee of both Management No. 1 and 2 and that he had not received his full and final dues upon any settlement, it was incumbent upon the managements to prove that the services of the workman were terminated in compliance of Section 25F of the ID Act. However, neither any notice was issued to the workman intimating the intention of the Management to terminate his services nor any notice pay was given to him and no service compensation was paid to him. Hence, the termination of his services was illegal being violative of Section 25F of the ID LIR/D No. 91/2010 8 of 10 Act. Hence, this issue is also decided in favour of the workman and against the managements.
ISSUE No. 4/Relief :
16. The workman has claimed that he is unemployed since the date of his termination. In his crossexamination he deposed that his household monthly expenditure is about Rs.40005000/ which is met by his daughter who takes tuitions. The management could not lead any evidence to show that the workman is gainfully employed.
17. In Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya and others CDJ 2013 SC 765, the Hon'ble Apex Court held that if the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee was gainfully employed and was getting wages equal to the wages he was drawing prior to the termination of service. It was also held that once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. In the instant case, the managements have failed to prove that the workman had been gainfully employed after his termination. It was also held in the said case that in case of wrongful termination of service, reinstatement with continuity of service and back LIR/D No. 91/2010 9 of 10 wages is normal rule.
18. In view thereof, it is directed that the workman be reinstated in service with continuity of service and consequential benefits and with full back wages.
Claim is accordingly answered. Let a copy of this Award be sent for publication and case file be consigned to Record Room. ANNOUNCED IN OPEN COURT ON 23rd Day of October 2013 (SANJAY SHARMA) PRESIDING OFFICER LABOUR COURTXIX KARKARDOOMA COURTS, DELHI LIR/D No. 91/2010 10 of 10