Delhi District Court
2 vs Presiding Officer And Anr. 2006 Llr 302 on 19 January, 2007
1
I.D.NO. 719/01.
IN THE COURT OF SH. GURDEEP KUMAR: PRESIDING OFFICER:
LABOUR COURT NO.1 : ROOM NO. 52 : KARKARDOOMA : DELHI.
BETWEEN
M/s. Raj Roller Engravers, B-72/18, Mandir Marg, North
Ghonda, Delhi-53.
AND
Its workman C/o Shahdara General Udyog Shramik Union,
D-14, Mansarover Park, Shahdara, Delhi-32.
AWARD :
Vide Notification No.F. 24 (359)/ 2001-Lab./ 11882-
86 dated 19.06.2001, Secretary Labour, Delhi Administration,
Delhi has referred this dispute to this court for its adjudication
u/s 10 (1)(c) and 12 (5) of the I.D. Act, 1947. The terms of
reference are as under :-
''Whether the services of Sh. Jaipal Singh
have been terminated illegally and / or
unjustifiably by the management, and
if so, to what other relief is he entitled
and what directions are necessary in
this respect?''
Workman's case in brief is that he had been
employed with the management since 01.11.1983
continuously as a Turner / Engraver. His service record was
neat and clean. The management had not been
Contd..
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I.D.NO. 719/01.
maintaining proper service record of the claimant in a
prescribed manner as provided under the law and
management used to pay wages sometimes on register
and sometimes on note book. He was also not given
appointment letter, casual leave and minimum wages
despite his several requests. It is averred that management
was having sister concerns under the name and styles of
M/s. Raj Electroplating, M/s. Raj Roller and Printers, M/s.
Krishna P.V.C Tapes functioning at the same address and
management occasionally used to take work from the
claimant in its sister concerns in urgency but he was paid
wages by the management. He had been requesting Sh.
Satpal Singh and Smt. Rewati Devi to maintain proper
service record, wages according to minimum wages. It is
further averred that when claimant insisted for statutory
benefits, the management withheld his wages for the month
of February, 2000 and terminated his services w.e.f.
29.03.2000 without any notice, charge sheet or payment of
retrenchment compensation. He sent a demand notice
Contd..
3
I.D.NO. 719/01.
dated 30.06.2000 to the management by regd. A.D and
UPC. His union also sent a complaint to the Labour Office,
Shahdara on 30.06.2000, but the efforts of the Labour
Inspector to resolve the dispute ended in failure.
Termination of claimant services is stated to be illegal,
unjustified, against the principles of natural justice, unfair
and in violation of Section 25-F of the Industrial Disputes Act,
1947. It is further averred that he is unemployed till date
despite his best efforts. He has sought his reinstatement with
continuity of service and full back wages.
2. The management has filed a Written Statement
taking preliminary objection that claimant was never been
to the job or service with them and same was never proved
by the claimant before the Conciliation Officer. The claim
petition filed by the claimant is gross misuse of process of
law and the claimant has filed same with mala fide intention
to harass the management and same is not maintainable as
due to some family disputes, the claimant, who is real
Contd..
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I.D.NO. 719/01.
brother-in-law of Smt. Rawati Devi wife of Satpal Singh, who
was the proprietor of M/s. Raj Roller Engravers, filed a false
and bogus claim against the management to settle his
personal vengeance / grudges. It is denied that
management was having sister concerns under the names
and styles of M/s. Raj Electroplating, M/s. Raj Roller and
Printers, M/s. Krishna PVC Tapes functioning at the same
address. It is averred that complaint was filed before the
Labour Office, Shahdara and efforts of Labour Inspector to
resolve the dispute ended in failure. It is denied that
claimant sent demand notice dated 30.06.2000 to the
management by registered A.D and UPC. All other
allegations as made in statement of claim are denied by
the management in toto.
3. The workman filed rejoinder denying averments
made in the Written Statement reiterating the facts stated
in the Statement of Claim.
Contd..
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I.D.NO. 719/01.
4. After filing of the Written Statement the
management did not appear on 03.08.2003 and was
proceeded ex-parte by my ld. Predecessor vide orders of
even date and the case was listed for ex-parte workman
evidence on 07.10.2003. However, the proprietor of the
management appeared and the case was listed for
workman evidence by way of affidavit on 20.12.2003 which
was filed on 28.02.2004. At that point of time, inadvertently
issues were not framed by my ld. Predecessor and the case
was proceeded with claimant evidence in which the
workman evidence was led on 28.02.2004. However, both
the parties had taken part in adjudication in this regard fully
aware of the terms of the reference which are as under :-
''Whether the services of Sh. Jaipal Singh
have been terminated illegally and / or
unjustifiably by the management, and
if so, to what other relief is he entitled
and what directions are necessary in
this respect?''
Therefore, the issue involved is "as per terms of
reference.
Contd..
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I.D.NO. 719/01.
5. Claimant, Jai Pal Singh examined himself as W.W.1,
besides, WW1, M.Imtyaz, Labour Inspector. On the other
hand, Mr. Satpal Singh husband of Smt. Rewati Devi,
proprietor of management examined himself as M.W.1.
6. Claimant W.W.1, Jai Pal Singh tendered his affidavit
in evidence duly attested by Oath Commissioner
appointed by the Hon'ble High Court of Delhi reiterating
averments spelled out in the statement of claim. He also
relied upon documents Ext. WW1/1 copy of demand
notice sent through postal receipt Ext. WW1/2, UPC Ext.
WW1/3, R.C received back Ext. WW1/4, copy of union letter
dated 30.06.2000 Ext. WW1/5, letter of the Labour Inspector
dated 17.07.2000 Ext. WW1/6, photocopy of experience
certificate issued by the management Ext. WW1/7, copy of
pass book of SBI Ext. WW1/8.
7. On the other hand, Sh. Satpal Singh M.W.1 also
Contd..
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I.D.NO. 719/01.
tendered his affidavit in evidence, duly attested by the
Oath Commissioner appointed by the Hon'ble High Court of
Delhi. Therein he reiterated all averments by the
management as spelled out in the Written Statement.
8. I have heard A.R for both the parties. I have also
carefully gone through the documents, evidence and other
relevant material available on record.
My findings on the reference are as under :-
ISSUE NO. 1.
9. According to the claimant, he was employed with
the management since 01.11.1983 as Turner / Engraver and
was in continuous service till his services were terminated by
the management on 29.03.2000. On the other hand,
management claims that the claimant is the real brother-in-
law of Smt. Rewati Devi wife of Sh. Satpal Singh, who was
Contd..
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I.D.NO. 719/01.
the proprietor of M/s. Raj Roller Engravers and that there has
never been any relationship of employer and employee
between the claimant and the management. As per
settled law, onus is on the claimant to prove the said
relationship. While deposing as WW1, claimant Jaipal Singh
stated that he joined services with the management as
Engraver / Turner w.e.f. 01.11.1983 and he was in continuous
service with the management till the date his services were
terminated. He further deposed that after his services were
terminated by the management. He sent a demand notice
dated 30.06.2000, copy of which is Ext. WW1/1 which was
despatched vide postal receipt Ext. WW1/2 and was sent to
the management at its address by registered A.D and also
by UPC Ext. WW1/3. M.W1, Satpal Singh, in his cross
examination, admitted that the management address on
registered envelope (Ext. WW1/4 and the UPC Ext. WW1/3)
is correct. As reported by the postal authorities, the notice
sent by registered post could not be delivered at the given
address as no one met there and nobody came to the Post
Contd..
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I.D.NO. 719/01.
Office to collect the same despite information. The postal
receipt Ext. WW1/2 shows that the notice by registered A.D
was despatched at complete and proper address of the
management and, therefore, a presumption is attached
that the same had been tendered to the management. As
admitted by MW1, in his cross examination, management
address in UPC Ext. WW1/3 is correct. The said UPC is valid
and proper as it bears the seal and stamp of the postal
authorities. In the light of the facts, the notice sent by UPC is
presumed to have been delivered to the management. No
doubt it is a rebuttable presumption, but the management
has not brought on record any circumstance to show that
the notice sent by registered A.D vide Ext. WW1/4 and UPC
Ext. WW1/3 could not have been delivered due to any
special circumstances. In the absence of any such
evidence by the management, the notice sent by
registered A.D is presumed to have been tendered to the
management and the notice sent by UPC Ext. WW1/3 is
presumed to have been delivered at the address of the
Contd..
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I.D.NO. 719/01.
management. In the demand notice Ext. WW1/1, the
claimant had made specific assertions of being in service of
the management from 01.11.1983 continuously as Turner /
Engraver till 29.03.2000 when his services were terminated.
There is nothing by the management to show that it had
sent any reply to the said notice to rebut those assertions.
As per the settled law, the management is deemed to have
admitted those assertions to be correct because they did
not rebut the same by way of any reply. The claimant had
filed a claim before the Conciliation Officer with the same
assertions. As admitted by M.W1, Satpal Singh, the
management did not file reply to the said claim in those
proceedings. Lastly the management came to know about
those assertions during the proceedings before the
Conciliation Officer. The management did not file reply to
the claim before the Conciliation Officer for the reasons
best known to it. During those proceedings, the
management got second opportunity to deny correctness
of those assertions relating to existence of relationship of
Contd..
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I.D.NO. 719/01.
employer and employee between claimant and the
management. Since the management did not deny those
assertions by way of any reply to the said statement of
claim, the management is deemed to have admitted those
assertions to be correct which clearly goes to show
existence of relationship of employer and employee
between the claimant and the management. The
claimant has examined W.W.2, Labour Inspector, M. Imtyaz.
He specifically stated that on 03.07.2000 he visited the
management in connection with complaint filed by the
claimant, where he met Sh. Satpal Singh (M.W1). He further
deposed that he was informed that the claimant was
working with the management for 12 years as Karigar but
the management did not produce the record despite
notice given to them. He further stated that Sh. Satpal Singh
(husband of Smt. Rewati Devi and brother of the claimant)
made a statement before him which is Ext. W.W.2/1 under
his signatures which is also signed by him at point A. In his
cross examination, he further stated that the statement Ext.
Contd..
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I.D.NO. 719/01.
W.W.2/1 was signed by Sh. Satpal Singh. He specifically
denied that the signatures at point X on Ext. WW2/1 are not
the signatures appended by Sh. Satpal Singh. In his
deposition, M.W.1 Satpal Singh disputed those signatures. I
myself have compared the signatures at point X on Ext.
W.W.2/1 with admitted signatures of the said Satpal Singh
on his statement made as M.W.1, his affidavit filed in
evidence Ext. MW1/A. A bare perusal with naked eyes
shows large number of similarities in the signatures at point X
in Ext. W.W.2/1 and the admitted signatures of Satpal Singh.
There are no unnatural dissimilarities in the admitted and
the disputed signatures of Sh. Satpal Singh and I am of the
considered view that signatures at point X on Ext. W.W.2/1
and the admitted signatures on the statement of M.W1
Satpal Singh and his affidavit Ext. MW1/A are appended by
one and the same person i.e., Satpal Singh. Therefore, there
are no grounds to disbelieve the statement of W.W.2, M.
Imtyaz against document Ext. W.W.2/1 which is a statement
made by Satpal Singh before the said Labour Inspector on
Contd..
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I.D.NO. 719/01.
03.07.2000. In the statement Ext. W.W.2/1 Sh. Satpal Singh
M.W1 had admitted that the claimant Jaipal Singh was
employed with the management as Karigar for 12 years.
The document Ext. W.W.2/1 duly corroborates the statement
of the claimant as W.W.1 regarding existence of
relationship of employer and employee between him and
the management.
10. The workman has placed on record a certificate
dated 30.04.1989 which is Ext. WW1/7 claiming that this is
signed by Sh. Satpal Singh ( as authorized signatory) of the
management. He specifically stated that the said
certificate is signed by Sh. Satpal Singh. He denied the
management suggestion that the said certificate Ext.
WW1/7 is not signed by said Satpal Singh and that those
signatures are forged. Admittedly that certificate is not
signed by Smt. Rewati Devi, the proprietor of the
management. M.W1, Satpal Singh, the husband of the
Rewati Devi, in his cross examination, admitted that he had
Contd..
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I.D.NO. 719/01.
represented the management in the conciliation
proceedings. In the light of this, it cannot be said that Sh.
Satpal Singh had no authority to sign the certificate Ext.
WW1/7 on behalf of the management. While deposing as
M.W1 Sh. Satpal Singh has disputed those signatures on Ext.
WW1/7. However, I myself have compared those signatures
at point A with the admitted signatures on certificate, with
the statement made by M.W1 Satpal Singh and his affidavit
by way of evidence Ext. MW1/A. The admitted and
disputed signatures are identical and there are no apparent
dissimilarities. Bare perusal with the naked eyes reveals
similarities in the disputed and the admitted signatures and,
therefore, I have no hesitation to hold that the signatures at
point A on Ext. WW1/7 are the signatures appended by Sh.
Satpal Singh M.W1 as an authorized signatory of the
respondent management. In the said certificate also there
is an admission by the management regarding existence of relationship of employer and employee between the claimant and the management. Therefore, this also Contd..
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corroborates the deposition of the claimant Jaipal Singh regarding existence of employer and employee between him and the management.
11. As already stated above, the claimant deposing as WW1 specifically stated that he was employed with the management since 01.11.1983 as Turner / Engraver and worked till 29.03.2000 when his services were terminated by the management. He has proved on record service of the demand notice Ext. WW1/1 which the management did not reply to rebut the assertions regarding the said existence of relationship of employer and employee. The workman has also proved on record certificate Ext. WW1/7 in which the management had admitted existence of said relationship. The claimant also proved Ext. W.W.2/1 vide statement of WW2 M. Imtyaz which further confirms existence of the said relationship of employer and employee between the claimant and the management. As borne out from the record, it is the case of the management that Smt. Rewati Contd..
16I.D.NO. 719/01.
Devi wife of Satpal Singh, M.W1, is the proprietor of respondent management. She herself did not appear in the witness box to disprove the case of the claimant. She did not appear in the witness box herself for the reasons best known to her nor she has examined any duly authorized person on her behalf. M.W.1, Satpal Singh, in his affidavit Ext. MW1/A stated that he is the attorney and husband of Smt. Rewati, Proprietor of the management. However, in his cross examination, he admitted that he has not placed on record power of attorney to show that he is attorney of the said Smt. Rewati, Proprietor of the management. Therefore, it is a case of `no evidence by` the management. The statement of M.W.1, Satpal Singh is of no evidential value as he has got no authority and is not empowered by the management to depose on its behalf. This goes to show that the aforesaid evidence brought on record by the claimant is unrebutted and unchallenged for want of examination of Smt. Rewati Devi, proprietor of the management or any duly authorized and constituted Contd..
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attorney on behalf of the management. In the light of the aforesaid evidence, as discussed above, I am of the considered view that the claimant Jaipal Singh has duly proved existence of relationship of employer and employee between him and the management.
12. M.W.1, Sh. Satpal Singh, in his cross examination, stated that generally there used to be 4 or 5 employees with the management. However, he stated that no record of any kind whatsoever, including attendance register and payment of wages register was ever maintained in respect of any employees by the management. In the light of the admitted facts that there used to be 4 or 5 employees with the management, it is not believable that it was not maintaining any attendance register or payment wages register in respect of its employees employed from time to time. In the light of this, the only inference is that the management has withheld the attendance register and the payment of wages register for the relevant period. The said Contd..
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record would have been the best documentary evidence to throw light on this issue but the management has withheld the same for the reasons best know to it. On that account an adverse inference is attracted against the management that had it produced the attendance register and the payment of wages register for the period from 01.11.1983 till 29.03.2000, it would have gone against the management and proved and corroborated the claim of the claimant regarding existence of relationship of employer and employee between him and the management.
13. In the demand notice Ext. WW1/1 which is duly served, as discussed earlier, workman had claimed to have worked with the management from 01.11.1983 till 29.03.2000 when his services were terminated by the management. Since those assertions were not disputed by the management by way of any reply, as discussed earlier, it is proved on record that claimant had worked with the management for more than 240 days preceding the date of Contd..
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termination of his services.
14. The management has tried to make out a case that the management has been closed. However, it has failed to place on record any cogent evidence to prove that plea. M.W1 Sh. Satpal Singh stated that the management was closed and was no more in existence since 2000. He further stated that the management had informed the MCD as well as DESU in that regard. However, he failed to place on record any such communication sent to either of the government agencies. In the light of this, the said contention of the management is not believable.
15. In the demand notice Ext. WW1/1, which was duly served on the management, as already discussed above, the workman had specifically asserted that his services were terminated w.e.f. 29.03.2000 without any notice, show cause, charge sheet and domestic enquiry. Besides, he was not even offered or paid any notice pay, retrenchment Contd..
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compensation. He has reiterated the same in his testimony as W.W.1 and his statement in that regard is un-rebutted and unchallenged as already stated above. Besides, it is not the case of the management that any notice, show- cause or charge sheet was given to the claimant / workman and any domestic enquiry was held before terminating his services on 29.03.2000. It is also not the case of the management that the workman was offered or paid any notice pay and / or compensation and retrenchment compensation. In other words, it is proved on record that management terminated the services of the workman w.e.f. 29.03.2000 without any notice, show cause, charge sheet and domestic enquiry and without offering and paying any notice pay and / or retrenchment compensation in violation of provisions of Section 25-F of the Industrial Disputes Act, 1947.
16. The termination of services as above has been defined as retrenchment. The case of the claimant is not Contd..
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covered under any exception of the definition of retrenchment u/s 2 (oo) of the I.D. Act, 1947. It is settled law that retrenchment of the workman without compliance of provisions of of Section 25-F of the I.D. Act, 1947, is ab- initio illegal besides being inoperative and ineffective. Further, it follows that the workman continued to be in service.
17. In the light of the aforesaid evidence, I hold that the services of the workman were terminated illegally and unjustifiably by the management. In the light of the facts and circumstances of the case, I am of the considered view that instead of an order of reinstatement with back wages, it is a fit case to award compensation to the workman in lieu of reinstatement and back wages. As borne out from the record, the workman is the real brother of Sh. Satpal Singh, husband of Smt. Rewati Devi, Proprietor of the management. The relationship between the two parties are quite strained. Even M.W1, Satpal Singh has stated so in his statement as M.W1. Besides, his services were terminated Contd..
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almost seven years back. Considering all these facts, I am of the considered view that it is a fit case to award compensation to the workman instead of passing an award of reinstatement with back wages. On this view I am fortified by the case law in the case of Pramod Kumar and Anr. Vs. Presiding Officer and Anr. 2006 LLR 302, the workmen had worked only for two year with the respondent corporation and their services were terminated without compliance of Section 25-F of the Industrial Disputes Act, 1947 i.e. providing for retrenchment compensation at the time of their termination. It was held by Their Lordships that in view of long passage of time, direction for reinstatement with back wages could not be granted and claimants were granted compensation of Rs. 50,000/- each along with interest @ 8% per annum. As observed by Their Lordships in that case, it is settled law that an Industrial Tribunal has jurisdiction to direct reinstatement and in a case of wrongful dismissal, reinstatement is the normal rule. However, there are exceptions to this rule and these exceptions have been Contd..
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recognized in various judgments. It has been further observed by Their Lordships that reinstatement has not been considered desirable in cases where there have been strained relationships between employer and employee or there is lack of trust or loss of confidence. Reinstatement is also denied when an employee had been found to be guilty of subversive activity or acting prejudicial to the interest of the industry. Those observations were made by Their Lordships in the light of the pronouncement of the Hon'ble Apex Court in Rattan Singh Vs. Union of India, (1997) 11 SCC 396; Rolston John Vs. Central Government Industrial Tribunal-cum-Labour Court, 1995 (Supplementary) 4 SCC 549 (1194 Lab IC 973), Gujarat State Road Transport Corporation Vs. Mulu Amra AIR 1994 SC 112 and MP Shikshak Sangh Vs. State of MP, 1995 1995 Supplementary (1) SCC
556. In the case of Haryana Tourism Corp. Ltd. Vs. Fakir Chand, (2003) 8 SCC 248 the Hon'ble Apex Court directed a compensation of Rs. 70,000/-, instead of reinstatement with 25% back wages taking into consideration factors like (a) Contd..
24I.D.NO. 719/01.
workers were daily wagers (b) workers were not recruited through employment exchange or regular mode of selection (c) services of the workers were terminated long back and (d) consideration nature of work, the workers must have done similar work at least intermittently.
18. After taking into account all the relevant facts including the length of service from 01.11.1983 to 29.03.2000, the period of seven years when his services were terminated, his last drawn wages, the nature of his duties which do not rule out possibility of his being employed at least intermittently during the intervening period, I am of the considered view that a compensation of Rs. 1,00,000/- (Rupees One Lakh) shall be sufficient and adequate compensation in lieu of reinstatement and back wages. The workman is accordingly awarded compensation of Rs. 1,00,000/- in lieu of reinstatement and back wages for the intervening period. The management is directed to pay the said sum of Rs. 1,00,000/- (Rupees One Lakh) to the Contd..
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workman within two months from the date of publication of the award, failing which the workman shall be entitled to interest on that amount @ 8% per annum from the date of publication of the award till payment / realization of that amount.
The reference is answered accordingly. File be consigned to record room.
Dated : 19.01.2007. (GURDEEP KUMAR) PRESIDING OFFICER:
LABOUR COURT NO.I. Typed 1+6 copies K.K.RDOOMA:DELHI.
Contd..