Delhi District Court
Presiding Officer Labour CourtX vs M/S Victoria Printing Inks & Chemicals on 22 December, 2012
IN THE COURT OF SH. CHANDRA GUPTA
PRESIDING OFFICER LABOUR COURTX
KARKARDOOMA COURTS, DELHI.
D.I.D. No. : 66/07
LCA No. :14/09
Date of Institution of the case : 28.05.2007 (D.I.D.) and
26.02.2009(LCA)
Date on which reserved for Award : 16.10.2012
Date on which Award is passed : 21.12.2012
Unique ID no. 02402C0410742007 (D.I.D.)
02402C0065942009 (LCA)
Sh. Naresh Kumar Mehta, S/o Sh. Krishan Lal Mehta,
C/o General & Engineering Kamgar Sanghthan (Regd.)
W.U.O, 8/1, Near 8/35, Kirti Nagar, New Delhi110015.
...............Workman
Versus
M/s Victoria Printing Inks & Chemicals,
J37, Kirti Nagar, New Delhi110015. ...............Management
A W A R D
Vide this award I would dispose of the above mentioned
Direct Industrial Dispute (D.I.D.) and connected Labour
Compensation Application (LCA).
The workman Sh. Naresh Kumar Mehta, raised an industrial
dispute regarding the termination of his services by the management
D.I.D. No. 66/07 & LCA No. 14/09 Page 1 out of 37
of M/s Victoria Printing Inks & Chemicals. Direct statement of claim
was filed by the workman in the court. In the statement of claim, it is
stated by the workman that he had been working with the
management for the last 26 ½ years as an accountant on the last
drawn salary of Rs. 5,000/ per month; that he had given no chance
of complaint to the management during the entire period of his tenure
of employment with the management and his work was satisfactory;
that the management was initially functioning at 10/60 Industrial
Area, Kirti Nagar, New Delhi and on 02.01.2004 suddenly
shifted/transferred to above mentioned address; that the management
was not providing legal facilities to the workman such as appointment
letter, attendance card, minimum wages, ESI facility, PF facility,
bonus, etc for which workman was demanding orally from the
management from time to time; that upon these demands of the
workman, the management started getting annoyed with the workman
and terminated his services on 27.09.2006 without any prior
information and notice as also withheld his earned wages amounting
to Rs. 1,45,045/; that the workman through his union made a
complaint in this regard before labour department Karampura; that the
management did not take back the workman on duty even before the
labour inspector; that the termination of the services of the workman
falls under the definition of retrenchment under Section 2 (oo) of the
D.I.D. No. 66/07 & LCA No. 14/09 Page 2 out of 37
Industrial Disputes Act, 1947 (as amended upto date); that the
management had not complied with the provisions of Section 25 F of
the Industrial Disputes Act 1947 (as amended upto date); that on
01.05.2007 the workman had sent a demand notice to the
management through registered AD post; that the management did
not reply the same nor comply it; that the workman is unemployed
since the date of his illegal termination. Hence, the workman has
claimed for reinstatement with full back wages, continuity of service
and all his dues.
Along with his instant D.I.D. proceeding the
workman also filed the connected L.C.A. No. 14/2009 as mentioned
hereinabove on the same allegations, further alleging therein that the
management had not made payment to him of his earned wages for
the period w.e.f. 02.01.2004 to 27.09.2006 @ Rs. 5,000/ per month
except for making payment of an amount of Rs. 19,955/ towards
expenses thereby amounting to Rs. 1,45,045/ as on the date of the
alleged termination of his service on the part of the management viz.
27.09.2006.
Notice of the filing of statement of claim was sent to the
management who did not appear despite due service and was
proceeded exparte in the instant proceeding vide the relevant order
passed in this regard, on record and the case fixed for exparte
D.I.D. No. 66/07 & LCA No. 14/09 Page 3 out of 37
workman evidence.
In support of his case, the workman himself has
appeared as WW1 in his exparte workman evidence, tendered his
affidavit by way of evidence Ex. WW1/A as also relied upon the
documents Exts.WW1/1 to WW1/6, Ex.WW1/7 & Ex.WW1/8
(Collectively which are referred to as Ex.WW1/6A to WW1/26 in his
affidavit), on record. In his affidavit by way of evidence Ex. WW1/A,
the workman has reiterated the contents of his statement of claim.
After examining WW1, exparte workman evidence
on behalf of the workman was closed.
Thereafter, an application for setting aside the order
proceeding the management exparte moved on behalf of the
management and the same was set aside vide the relevant order
passed in this regard.
Thereafter, the management appeared and contested
the claim of the workman by filing its written statement. In the
written statement filed by the management, it has taken the
preliminary objections that the management establishment ceased to
exist on 31.12.2003 as proprietor of the management establishment
undertook to vacate the premises 10/60 C, Kirti Nagar, Industrial
Area, New Delhi110015 on 31.12.2003 in Delhi High Court in C.M
(Main), 383/3 and clear arrears of rent till 31.12.2003; that after
D.I.D. No. 66/07 & LCA No. 14/09 Page 4 out of 37
31.12.2003 no manufacturing activity was being run by the
management; that the management sold all the machines and
manufacturing activities came to halt w.e.f. 31.12.2003; that due to
closure of the management establishment w.e.f. 31.12.2003 all the
dues of workers working in the establishment were cleared; that it is
frivolous to allege that management establishment was transferred at
J37, Kirti Nagar, New Delhi110015, which exists in residential
locality and is residence of Mr. B.S. Butalia, who was proprietor of
management establishment; that the claimantworkman received upto
date dues upto 31.12.2003; that although no work was taken from
claimantworkman after January, 2001 still the management
continued to pay him monthly wages in good faith in the hope that
work in the management establishment would be recommenced soon
but when hopes were dashed and management establishment vacated
the premises in which management establishment existed, there was
no alternative left except to cease manufacturing activities
permanently; that it is frivolous to allege that services of the claimant
workman were terminated on 27.09.2006 after withholding arrears of
wages amounting to Rs. 1,45,045/; that the claimant workman moved
application under Shops and Establishment Act claiming Rs.
1,45,045/ which was dismissed by Mr. S.K. Dahiya, Authority under
Shops and Establishment Act on 24.07.2008 observing that the
D.I.D. No. 66/07 & LCA No. 14/09 Page 5 out of 37
claimant has not filed any document from which he could draw any
inference that amount as claimed is due to him; that in view of
observation of Mr. S.K. Dahiya, it is perverse to allege that services
were terminated after withholding payment of Rs. 1,45,045/; that
when industry of management establishment was closed permanently
management stopped payment of monthly wages to claimant
workman; that it cannot be said by any imagination that workman was
treated unfairly or rudely by not paying him monthly wages after
permanent closure of industry of management; that the management
continued to employ claimantworkman till its industry existed. On
merits it is admitted to the extent that claimantworkman worked for
about 20 years; that although he left services and then rejoined but in
the aggregate he worked for about 20 years; that claimantworkman
never wrote accounts and he worked substantially as clerk in
management establishment; that there is no truth in the plea that
claimant was accountant; that last drawn wages of claimant were Rs.
4,000/ and not Rs. 5,000/ as claimed by him; that as earlier stated,
the management ceased its activities after 31.12.2003 and there is no
truth in the assertion that management shifted its activities at J37,
Kirti Nagar, New Delhi110015, which is residence of Mr. B.S.
Butalia, Proprietor of management establishment; that the denial of
legal facilities has been chosen as excuse for justifying his action of
D.I.D. No. 66/07 & LCA No. 14/09 Page 6 out of 37
raising industrial dispute; that during his tenure claimantworkman
never submitted written complaint alleging that he was deprived of
statutory facilities or he was treated unfairly; that as management
ceased its management activities w.e.f. 31.12.2003 it is perverse to
allege that services of claimantworkman were terminated on
27.09.2006 after withholding arrears of monthly wages amounting of
Rs. 1,45,045/; that as already stated the workman failed to prove that
he is entitled to claim Rs. 1,45,045/ from management before
authority under Shops and Establishment Act; that the relevant para
of the statement of claim are neither admitted nor denied as
management was not provided a copy of complaint made at Labour
Welfare Centre Karampura; that no labour inspector met Mr. B.S.
Butalia, Proprietor of management establishment at any time; that
therefore, there is no truth in the assertion that management refused
duties before area labour inspector; that when industry of
management establishment ceased to exist there is no question of
retrenching services of claimantworkman; that provisions of Section
25F of I.D. Act were never violated as alleged in the para; that the
management never received demand letter of the workman; that
therefore, no question of submitting reply to demand letter arises;
that the management have not done any thing which may amount to
antilabour policy; that the workman permanently does transport
D.I.D. No. 66/07 & LCA No. 14/09 Page 7 out of 37
activities and is owner of trucks employing many persons; that while
in employment of management on parttime basis he used to do
transport activities owning tempos and trucks; that the workman
lodged his claim under Shops and Establishment Act which was
dismissed later on 24.07.2008 workman failed to prove his claim for
monthly wages; that there is no substance in prayer clause as
workman worked till the industry of management existed; that as
industry of management establishment permanently closed no
question of reinstatement arises; that therefore it is prayed that
preliminary and jurisdictional objections of management in first
heading should be taken up first of all and it should be held that
claimantworkman is not entitled to any relief upholding objections of
management in first heading. All other allegations are denied. Hence,
it is prayed that the statement of claim be dismissed.
As also in reply to the L.C.A. to the same effect
denying the allegations therein as also the allegation of the
applicant/workman that an amount of Rs. 1,45,045/ is due to him
from the respondent/management towards his earned wages for the
period w.e.f. 02.01.2004 to 27.09.2006 on account of the applicant/workman having worked with the respondent/management as an Accountant at the premises bearing No. J37, Kirti Nagar, New Delhi 110015 for the said period on the last drawn wages of Rs.
D.I.D. No. 66/07 & LCA No. 14/09 Page 8 out of 37 5,000/ per month, which have not been paid on the part of the respondent/management to him except an amount of Rs. 19,955/ on the part of the respondent/management to him as expenses towards the same during the said period, on the ground that no monthly wages amounting to Rs. 1,45,045/ remained due to applicant/workman as respondent/establishment ceased to exist after 31.12.2003 and no wages were earned for the period 02.01.2004 to 27.09.2006.
In rejoinders to the written statement and reply of the management in the subject proceedings, all the averments of the statement of claim and application are reaffirmed and of the written statement and reply of the management are denied by the workman.
On the pleadings of the parties vide order dated 16.03.2009, the following issues viz.
(i) Whether the management is closed w.e.f. 31.12.2003 as alleged in preliminary objection no.1 of the written statement?
(ii) Whether the services of the workman has been terminated illegally and/or unjustifiably by the management?
(iii) Relief.
were framed in the subject D.I.D. proceedings and vide order dated 14.09.2009 the following issues viz.
1. To what amount the claimant is entitled to receive?
D.I.D. No. 66/07 & LCA No. 14/09 Page 9 out of 37
2. Relief.
were framed in the subject LCA proceedings.
No other issue arose or pressed and the case was adjourned for workman evidence.
In support of his case in the D.I.D. proceedings, the workman himself has appeared as WW1 in his workman evidence, tendered his affidavit by way of evidence Ex. WW1/A as also relied upon the documents filed by him earlier in his exparte workman evidence on 07.03.2008 as Ex.WW1/1 to Ex.WW1/8. In his affidavit by way of evidence Ex. WW1/A, the workman has reiterated the contents of his statement of claim as also in the connected LCA as WW1 along with his affidavit by way of evidence Ex.WW1/A and documents Exts.WW1/1 to WW1/9.
In remaining workman evidence, Sh. Subhash Kumar, Inspector of the Income Tax at ward 27 (2), Vikas Bhawan, DBlock, New Delhi appeared and stated that he brought the record of Baljinder Singh Bhutalia, Proprietor of M/s Victoria Printing Inks & Chemicals for the assessment year, 200506 and 200607 which are income tax returns which are exhibited WW2/1 to WW2/6.
After examining WW2, evidence on behalf of the workman was closed.
In support of its defence, management has examined Sh.Baljinder D.I.D. No. 66/07 & LCA No. 14/09 Page 10 out of 37 Singh Butalia, proprietor of the management establishment as MW1, who has tendered his evidence by way of affidavit Ex.MW1/A as also relied upon photocopies of documents Exts. MW1/1 to MW1/3 in the subject proceedings.
After examining MW1, evidence on behalf of the management was closed.
Final arguments have been heard. ARs for the parties have also filed written submissions.
My issuewise findings in the D.I.D. are as under: Issue No.1.
It is seen from the record that the workman has appeared in his workman evidence as WW1, tendered his affidavit by way of evidence Ex.WW1/A as also relied upon the documents Exts.WW1/1 to WW1/8. In his affidavit by way of evidence the workman has alleged that he had been working with the management on the post of Accountant w.e.f. 28.08.1980 on the last drawn wages of Rs. 5,000/; that he had given no cause of complaint regarding his services to the management; that his record of service with the management was satisfactory; that the management was not providing legal facilities due to him under the labour laws like ESI facility, appointment letter, attendance card, P.F, earned wages, casual leave, bonus, overtime etc. to the workman for which the workman had been demanding to the D.I.D. No. 66/07 & LCA No. 14/09 Page 11 out of 37 management on account of which the management had started remaining annoyed with him as also had started withholding the earned wages of the workman; that the workman like before had gone on 27.09.2006 to attend to his duties with the management on which date the management with malafide intention without giving any prior information or show cause notice had terminated the services of the workman with the management which action of the management is illegal and unfair labour practice; that the management had not given the earned wages of the workman w.e.f. 02.01.2004 till 27.09.2006 which is against the provisions of the Payment of Wages Act for which the management is liable for payment of the earned wages and minimum wages under the provisions of Section 15 (3) of the Payment of Wages Act to the workman in respect of the post held by the workman with the management; that the workman had preferred his complaint in this regard against the management to the authority under Shops and Establishment Act which had been dismissed on the ground that the establishment of the management was under the Factories Act; that the workman had preferred his complaint dated 17.04.2007 against the management in this regard to the Assistant Labour Commissioner through union on which the area labour inspector had been asked to visit the premises of the management but the management had not taken back the workman on duty despite D.I.D. No. 66/07 & LCA No. 14/09 Page 12 out of 37 asking of the Area Labour Inspector to the said effect; that on 01.05.2007 the workman had sent a demand notice vide registered AD post through union to the management for his legal facilities under the labour laws as also for his reinstatement in service with backwages to which the management had not replied till date nor complied with its requirements which action of the management is illegal and unfair labour practice; that the workman had mistakenly mentioned the date of termination of his services by the management as 27.07.2006 in the demand notice which date in fact is 27.09.2006; that the management has written in its written statement that its establishment has been closed which is not true; that the establishment of the management is functioning till date; that the action of the management in terminating the services of the workman on 27.09.2006 is motivated and illegal; that the action of the management in terminating the services of the workman on 27.09.2006 comes under the definition of retrenchment under the provisions of Section 2 (oo) of the Industrial Disputes Act, 1947 (as amended upto date) prior to which the provisions of the Section 25 F, G and H had not been complied with on the part of the management before termination of the services of the workman on its part, as above said, and as such the termination of the services of the workman on the part of the management on the said date is illegal;
D.I.D. No. 66/07 & LCA No. 14/09 Page 13 out of 37 that the management had not given any opportunity to the workman for presenting his case nor instituted any enquiry against him nor given any notice to the workman before terminating his services and accordingly, the action of the management in terminating the services of the workman is illegal; that the workman is unemployed from the date of termination of his services and despite making efforts for obtaining employment has been unable to obtain any employment.
Ex.WW1/1 being report dated 02.08.2007 of the Labour Inspector Sh. Shiv Dayal on the complaint of the workman against the management to the office of the Deputy Labour Commissioner, Area Karampura, New Delhi, Ex.WW1/2 being postal registration receipts bearing nos. 508 and 509 addressed to the management dated 01.05.2007; Ex.WW1/3 and WW1/4 being the registered AD envelopes along with the alleged notice of the workman to the management with the endorsement refused on the part of the management; Ex.WW1/5 being copy of the demand notice dated 01.05.2007 sent by the workman to the management through registered AD post; Ex.WW1/6 being copy of letter dated 12.06.1996 of the management to the Assessing Authority, Ward No. 53, Sales Tax Bhawan, New Delhi, Exts.WW1/7 and WW1/8 being certain hand written account entries of the workman.
This witness has been cross examined at length by the
D.I.D. No. 66/07 & LCA No. 14/09 Page 14 out of 37
management in which he has deposed that he was working as Accountant with the management; that all the financial powers were lied with the owner only; that he was not having any certificate or diploma in the field of accountancy or C.A; that he was not given any appointment letter by the management as Accountant; that he had not any prior experience as Accountant; that he had not made any complaint to any competent authority regarding non giving him the legal benefits to him by the management; Vol. He had been working for 2025 years with the management there was no need for making any complaint against the management; that it was correct that the management was functioning at 10/60 C, Industrial Area, Kirti Nagar. Vol. It was functioning at this address till 02.01.2004 and thereafter it shifted to the owner's residential address i.e. J37, Kirti Nagar, New Delhi110015; that he used to go to the residential premises of the owner of the management after 02.01.2004 for his earlier work; that Sh. Om Prakash was the other employee of the management working at the residential address of the owner of the management apart from him and there were no machines installed at the residential premises of the owner of the management. Vol. there was grinding machine/mixing machine at the residential premises of the owner of the management; that all the machines were sold by the management after shifting from 10/60 C Industrial Area, Kirti Nagar, Delhi except D.I.D. No. 66/07 & LCA No. 14/09 Page 15 out of 37 the mixing machine; that he used to go daily to perform his duties; that he had the documents to show that he had worked with the management from 02.01.2004 to 27.09.2006; that he had filed Ex.WW1/7 in support of his working with the management from 02.01.2004 to 27.09.2006. Vol. Apart from this document, the documents i.e. Income tax returns and sales tax returns of the management are filed by him in his handwriting for the above said period; that except him and Sh. Om Prakash no other employee of the management was working at J37, Kirti Nagar, New Delhi110015; that it was correct that all the employees except him and Sh. Om Prakash were given their upto date wages at the time of shifting of the management from 10/60C, Industrial Area Kirti Nagar to J37, Kirti Nagar, New Delhi110015; that similarly all the machines were also sold at the time of shifting of the management except the grinding/mixing machine; that it was correct that he had sent the demand notice belatedly because of the only reason that the owner of the management had gone to United States of America; that he was not paid day to day expenses daily by the management; that it was wrong to suggest that he was working as part time employee apart from his employment with the management; that it was wrong to suggest that now he was driving Truck or tempo; that it was wrong to suggest that he was also paid his up to date wage by the management D.I.D. No. 66/07 & LCA No. 14/09 Page 16 out of 37 at the time of shifting of the management as the other employees were paid their full and final wages at that time; that it was wrong to suggest that he was deposing falsely.
As also in the connected LCA Ex.WW1/A on the same allegations/averments with the further allegation that earned wages @ Rs. 5,000/ per month are due from the respondent/management to the applicant/workman for the period w.e.f. 02.01.2004 till 27.09.2006 which have not been paid on the part of the respondent/management to the applicant/workman except an amount of Rs. 19,955/ as expenses to the applicant/workman during the said period, thereby amounting to Rs. 1,45,045/ as on 27.09.2006. Ex.WW1/1 being copy of legal notice dated 03.02.2009 got issued by the applicant/workman to the respondent/management through registered AD post, Exts.WW1/2 and WW1/3 being postal registration receipts in its respect Exts. WW1/4 and WW1/5 being the AD cards in its respect, again Ex.WW1/5 being copy of report dated 02.08.2007 of the Labour Inspector Sh. Shiv Dayal in respect of the complaint dated 17.04.2007 of the applicant/workman against the respondent/management to the office of the Deputy Labour Commissioner, West District, Karampura, New Delhi through Union Ex.WW1/6 being copy of order dated 14.11.2008 of the Hon'ble High Court of Delhi in W.P.(C) 7384/2008 between the D.I.D. No. 66/07 & LCA No. 14/09 Page 17 out of 37 workman/petitioner and respondent/management dismissing the Writ Petition as withdrawn with liberty to the petitioner to approach the Industrial Adjudicator with his claim, Ex.WW1/7 being order dated 24.07.2008 of Sh. S.K. Dahiya, Authority under the Delhi Shops & Establishment Act, 1954 in a proceeding instituted by the applicant/workman against the respondent/management, Exts.WW1/8 and WW1/9 being photocopies of certain hand written entries filed by the applicant/workman.
Thereafter, the workman has led the evidence of Sh. Subhash Kumar as WW2 in workman evidence in both the proceedings, who has deposed that he was Inspector of the Income Tax at ward 27 (2), Vikas Bhawan, DBlock, New Delhi; that he had brought the record of Sh. Baljinder Singh Butalia, Proprietor of M/s Victoria Printing Inks & Chemicals for the assessment year, 200506 and 200607 which are income tax returns which were Exts.WW2/1 to WW2/6, on record, who has been cross examined on behalf of the management and has deposed that it was true that he can only verify whether management establishment has filed income tax returns for the concerned years; that he cannot say to whom the management should authorized for filing the income tax returns; that it was true that the management was free to employ any person and he had no say in this matter; Ex.WW2/1 is the income tax return in respect of D.I.D. No. 66/07 & LCA No. 14/09 Page 18 out of 37 Sh. Baljinder Singh Butalia at the address J37, Kirti Nagar, New Delhi for the assessment year 200607 enclosing therewith Trading & Profit & Loss Account of M/s Victoria Printing Inks and Chemicals for the year ending 31.03.2006 Assessment year 200607 (Ex.WW2/2) as also Balance sheet of M/s Victoria Printing Inks & Chemicals for the year ending 31.03.2006 Assessment year 200607 (Ex.WW2/3); Ex.WW2/4 being the Income Tax Return in the name of Sh. Baljinder Singh Butalia at the address J37, Kirti Nagar, New Delhi for the Assessment year 200506 enclosing therewith the Trading & Profit & Loss Account of M/s Victoria Printing Inks and Chemicals for the year ending 31.03.2005 Assessment year 200506 (Ex.WW2/5) and Balance sheet of M/s Victoria Printing Inks & Chemicals for the year ending 31.03.2005 Assessment year 200506 (Ex.WW2/6). Thereafter, workman evidence has been closed, on record.
In management evidence, the management has led the evidence of Sh.Baljinder Singh Butalia, Proprietor of the management concern/firm as MW1 in both the proceedings, who has tendered his affidavits by way of evidence Exts.MW1/A as also relied upon photocopies of documents Exts.MW1/1 to MW1/3, on record. In his affidavit by way of evidence Ex.MW1/A he has reiterated the contents of his written statement/reply and has alleged that he was D.I.D. No. 66/07 & LCA No. 14/09 Page 19 out of 37 proprietor of management establishment till its closure on 31.12.2003 and therefore competent to depose as management witness; that management establishment was closed on 31.12.2003 in compliance with undertaking made in High Court of Judicature at New Delhi in C.M. (Main) 383/03; that one copy of undertaking made in C.M. (Main) 383/03 is exhibited and filed as EX.MW1/1; that order passed by High Court Delhi in C.M. (Main) 383/03 is filed as Ex.MW1/2; that management establishment existed at 10/60C, Kirti Nagar, Industrial Area, till 31.12.2003 and it is perverse to say that management establishment came to be shifted at his residential address; that as per residence welfare associations regulations machines cannot be installed within residential complexes/premises and residential complexes/premises can be utilized only for residential purposes in the locality; that management establishment ceased to exist on 31.12.2003; that after 31.12.2003 no manufacturing activity was run by the management; that the management cleared full and final dues of all employees and sold all the machines; that claimant workman worked as typist in management establishment for about 20 years; that claimant never worked as Accountant as claimed by him and his last drawn wages were Rs. 4,000/; that the claimant workman filed his claim even before the Authority under Delhi Shops and Establishment Act, 1954; that Hon'ble Authority was pleased to D.I.D. No. 66/07 & LCA No. 14/09 Page 20 out of 37 reject the claim of claimant workman as unsubstantiated and frivolous; that claimant workman never came to his residential premises after 02.01.2004 for the purpose of resumption of his duties; that he did not come for the purpose of resumption of his duties as management establishment ceased to exist after 31.12.2003 in compliance with undertaking given in High Court of Judicature, New Delhi in C.M.(Main), 383/03 as stated earlier; that claimant owns Trucks and Tempos and therefore he is gainfully employed; that details about this job of claimant workman can be furnished if demanded by Hon'ble Court; that claimant workman was employed in this field even when management establishment was in existence and even now he owns Trucks and Tempos as also that no monthly wages amounting to Rs. 1,45,045/ remained due to applicant/workman as respondent/establishment ceased to exist after 31.12.2003 and no wages were earned for the period 02.01.2004 to 27.09.2006; Ex.MW1/1 is an affidavit of Sh. Baljinder Singh Butalia, Proprietor of the management M/s Victoria Printing Inks & Chemicals at 10/60C, Kirti Nagar, Industrial Area, New Delhi filed in the Hon'ble High Court of Delhi at New Delhi in C.M.(Main) 383/03 titled Sh. B.S. Butalia, Petitioner Vs. Shrimati Rama Kohli, Respondent, in which he has undertaken to vacate the premises in question by 31.12.2003 and to clear the dues of rent till 31.12.2003, Ex. MW1/2 D.I.D. No. 66/07 & LCA No. 14/09 Page 21 out of 37 being copy of an order dated 26.05.2003 passed by the Hon'ble High Court of Delhi in C.M.(Main) 383/03 and C.M. 779/03, Ex. MW1/3 being copy of an order dated 23.07.2008 passed by Sh. S.K.Dahiya, Authority under the Delhi Shops & Establishment Act, 1954, Govt. of NCT of Delhi, Labour Welfare Centre, FBlock, Karampura, New Delhi110015 between the applicant/claimant and the management/respondent.
This witness has been cross examined at length on behalf of the workman in management evidence, in which he has deposed that his establishment had been registered under the Shops and Establishment Act; that he had not brought the copy of the registration certificate on that day; that the applicant had been employed as Typist with his concern in the year 1975; that his last drawn wages were Rs. 4,000/ per month; that he had worked with his concern as Typist only till 31.12.2003 on which date his concern had been closed at the relevant address on his part; that it was incorrect to suggest that the applicant/workman had been working as Accountant in his concern on the last drawn salary of Rs. 5,000/ per month till 27.09.2006; that he used to made payment of the salary to the workman per month on wages register; that he cannot produce the record of payment wages register of his concern w.e.f. the year 1975 to the year 2006 or record of attendance registers being maintained by D.I.D. No. 66/07 & LCA No. 14/09 Page 22 out of 37 him for the said period; that it was wrong to suggest that he intentionally did not want to produce the relevant record; that he had closed his firm at the given address i.e. 10/60C, Kirti Nagar Industrial Area, New Delhi110015 on 31.12.2003 in compliance of the order of the Hon'ble High Court of Delhi passed in the relevant proceedings and had also given his undertaking to the Hon'ble High Court of Delhi in this regard; that it was wrong to suggest that thereafter, he was running his establishment from his residential premises as given above or that the workman was working there; that he had not given notice of closure of his establishment at the given address on the said date to any authority; that he had settled the accounts of the workman on the closure of his establishment on 31.12.2003; that he had not filed any document to the said effect, on record; that it was wrong to suggest that the dues of the workman had not been settled by him on the date of closure of his establishment; that he cannot say whether on 17.04.2007 Labour Inspector Sh. Shiv Dayal had visited his residential address as above, again said, the Labour Inspector had come but he could not tell his name; that he had provided the documents asked for by the Labour Inspector in respect of the workman from him at that time; that it was wrong to suggest that he had not provided the record in respect of the workman to the Labour Inspector at that time; that he had received demand notice dated D.I.D. No. 66/07 & LCA No. 14/09 Page 23 out of 37 01.05.2007 from the workman by registered post; that he had not given reply to the notice received from the workman; that the document Ex.WW1/7 was not bearing his signatures; that it was wrong to suggest that he was deposing falsely in this regard; that he had not terminated the services of the workman but due to the closure of his concern at the given address his dues were settled; that it was wrong to suggest that earned wages for the period w.e.f. 02.01.2004 to 27.09.2006 are due to the workman or that the same have been illegally withheld by him; that it was wrong to suggest that the workman used to prepare the income tax return of his concern and file the same on his behalf during the period of his employment in his concern; that Ex.WW1/6 is bearing his signature at point A; that it was wrong to suggest that the workman used to do the work of filing of sales tax and income tax returns in respect of his concern or that he had been authorized by him in this regard; that he used to maintain cash book/ledgers in respect of the payments made to the employees;that, however, he could not produce the same at that stage; that it was wrong to suggest that no such record was being maintained by his concern during the period of its operation; that it was wrong to suggest that the services of the workman had been terminated illegally by him and his dues not paid; that it was wrong to suggest that he was deposing falsely. Thereafter, management evidence has D.I.D. No. 66/07 & LCA No. 14/09 Page 24 out of 37 been closed, on record.
It is thus seen from the record that the workman has alleged in no uncertain terms by way of his statement of claim/affidavits by way of evidence Exts. WW1/A, on record, that he had been working with the management for the last 26 years/since 28.08.1980 on the post of an Accountant on the last drawn wages of Rs. 5,000/ per month; that the management had been functioning at 10/60C, Kirti Nagar Industrial Area, New Delhi till 02.01.2004 on which date it had shifted to J37, Kirti Nagar, New Delhi (purportedly the residential address of Sh. Baljinder Singh Butalia, proprietor of the management); that thereafter he had worked with the management at the said address till 27.09.2006 when his services had been illegally terminated on the part of the management; that the management had not given him his earned wages for the period w.e.f. 02.01.2004 till 27.09.2006 amounting to Rs. 1,45,045/; that the management had not been providing the legal facilities to the workman like ESIC, appointment letter, attendance card, EPF, earned leave, casual leave, bonus, overtime etc. to which legal facilities he was entitled during the period of his services with the management, as above; that the workman on 17.04.2007 had preferred a complaint to the Assistant Labour Commissioner, Delhi Government through the union on which complaint Labour Inspector had been sent by the Authority to D.I.D. No. 66/07 & LCA No. 14/09 Page 25 out of 37 the premises of the management but the management had not reinstated the workman in service with it despite giving assurance to the labour inspector, who had visited the premises of the management at the relevant time in this regard; that the workman had sent a demand notice dated 01.05.2007 to the management by registered AD post for his reinstatement in service and legal benefits which had not been either replied or complied with on the part of the management despite its service upon it.
It is further seen from the record that the workman has relied upon report of the Labour Inspector dated 02.08.2007 in his respect to the effect that consequent to his complaint dated 17.04.2007 Labour Inspector Sh. Shiv Dayal had visited the premises of the management at J37, Kirti Nagar, New Delhi in respect of the complaint dated 17.04.2007 of the workman against the management to the Office of the Deputy Labour Commissioner, West District, Karampura, New Delhi regarding non payment of the earned wages of the workman w.e.f. January, 2004 till 27.09.2004 amounting to Rs. 1,45,045/and in respect of termination of his services with the management, on 17.04.2007 where Sh. Baljinder Singh Butalia, Proprietor of the management had been asked to come to the Labour Office along with the concerned record on 23.04.2007 vide a notice given to him in this regard; that on the date fixed Sh. Baljinder Singh D.I.D. No. 66/07 & LCA No. 14/09 Page 26 out of 37 Butalia had come to the Labour Office and stated that the complete payment had been made and when he had been asked to show the record, he had not produced any record nor discussed the complaint; that it is apparent that the management is not interested in resolving the issue, hence the workman can take up his issue with the competent forum/authority by way of an Industrial Dispute, as also upon copies of his demand notice dated 01.05.2007 sent to the management in respect of the alleged illegal termination of his services on the part of the management on the date alleged and payment of earned wages for the period alleged amounting to Rs. 1,45,045/ sent by registered AD post to the management (Exts.WW1/2 to WW1/5), on record.
It is further seen from the record that though the management has alleged that it had allegedly closed its establishment on 31.12.2003 at the premises bearing No. 10/60C, Kirti Nagar Industrial Area, New Delhi110015 in compliance of undertaking given to the Hon'ble High Court of Delhi in C.M.(Main) 383/03 vide Ex.MW1/1 pursuant to order passed by Hon'ble High Court of Delhi in C.M.(Main) 383/03, copy of which is Ex.MW1/2, on record and establishment of the management had ceased to exist on the said date, however, it is further seen from the record that no document has been proved by the management, on record, in respect of any letter(s) sent D.I.D. No. 66/07 & LCA No. 14/09 Page 27 out of 37 by it to any concerned/competent authority in this regard to the effect that the establishment of the management viz. M/s Victoria Printing Inks & Chemicals had been closed down w.e.f. 31.12.2003 at the said premises and at the most it can be inferred from the Exts.MW1/1 and MW1/2 filed by the management, as abovesaid, on record, that the establishment of the management had been vacated from the premises bearing No. 10/60C, Kirti Nagar Industrial Area, New Delhi110015 wherein it had been functioning, on 31.12.2003 pursuant to Exts.MW1/1 and MW1/2, on record.
It is further seen from the record that it has been alleged that thereafter the management has shifted to the residential premises of the proprietor of the management viz. Sh. Baljinder Singh Butalia, at J37, Kirti Nagar, New Delhi110015 w.e.f. 02.01.2004 where it had been functioning though having sold all its machines except the mixing cum grinding machine as admitted by the workman in his cross examination as WW1 in workman evidence which were the residential premises of the owner of the management to which allegation of the workman I find from the record there is no effective rebuttal on the part of the management except a bald denial as also it is evident from the tenor of the cross examination of the workman as WW1 on behalf of the management in workman evidence that the management is accepting that it has shifted itself from 10/60C, Kirti D.I.D. No. 66/07 & LCA No. 14/09 Page 28 out of 37 Nagar Industrial Area, New Delhi110015 where it had been earlier functioning to J37, Kirti Nagar, New Delhi110015 when in answer to a question put on behalf of the management to the workman in his cross examination as WW1 in workman evidence he has answered that it was correct that all the employees except him and Sh. Om Prakash were given their up to date wages at the time of shifting of the management from 10/60C, Industrial Area Kirti Nagar to J37, Kirti Nagar, New Delhi110015; that similarly all the machines were also sold at the time of shifting of the management except the grinding/mixing machine (emphasis supplied).
It is further seen from the record that though the MW1 has alleged that he had settled the accounts of the workman on the closure of his establishment on 31.12.2003, which has not been admitted by the workman, however, he has further admitted in his cross examination on behalf of the workman as MW1 in management evidence that he has not filed any document to the said effect, on record.
It is further seen from the record that the MW1 Sh.
Baljinder Singh Butalia, proprietor of the management had further admitted in his cross examination on behalf of the workman in management evidence that he had not given notice of closure of his establishment at the given address on 31.12.2003 to any authority.
D.I.D. No. 66/07 & LCA No. 14/09 Page 29 out of 37 It is further seen from the record that the MW1 Sh.Baljinder Singh Butalia, Proprietor of the management has further admitted in his cross examination on behalf of the workman in management evidence that the workman had been employed as a Typist with his concern in the year 1975 and his last drawn wages were Rs. 4,000/ per month; that he used to make payment of the salary to the workman per month on payment of wages register; that he cannot produce the record of payment of wages register of his concern w.e.f. the year 1975 to the year 2006 or even record of attendance registers being maintained by him for the said period, on record.
It is thus seen from the record that the management has not filed/proved, on record, any best evidence which can be said to be admittedly in its possession in rebuttal to the allegation of the workman that he had been working/performing his duties with the management w.e.f. 02.01.2004 till 27.09.2006 at J37, Kirti Nagar, New Delhi which were the residential premises of Sh. Baljinder Singh Butalia, proprietor of the management pursuant to the alleged shifting of the management from the premises at 10/60C, Kirti Nagar Industrial Area, New Delhi110015 where it had been earlier functioning till 31.12.2003 when it had allegedly vacated the said premises consequent to Exts.MW1/1 and MW1/2, on record, as also D.I.D. No. 66/07 & LCA No. 14/09 Page 30 out of 37 in rebuttal to the allegations of the workman that he had not been paid his earned wages @ Rs. 5,000/ per month for the said period once it has come, on record, that the management has apparently been shifted from 10/60C, Kirti Nagar Industrial Area, New Delhi110015 to J37, Kirti Nagar, New Delhi110015 consequent to 31.12.2003 in view of the admission on behalf of the management in the cross examination of the workman WW1 in workman evidence, as abovesaid, as also in the cross examination of the MW1 Sh. Baljinder Singh Butalia, Proprietor of the management on behalf of the workman in management evidence when he states that he had not given notice of closure of his establishment at the given address viz. 10/60C, Kirti Nagar Industrial Area, New Delhi110015 on the said date viz. 31.12.2003 to any authority, in the instant proceedings, on record, the onus to rebut the allegation of the workman having shifted upon the management.
It is further seen from the record that it has been admitted by the MW1 Sh. Baljinder Singh Butalia, Proprietor of the management in his cross examination on behalf of the workman in management evidence that it was correct that he had received demand notice dated 01.05.2007 from the workman by registered AD post but he had not given any reply to the said notice received from the workman as also that he used to maintain cash book/ledgers in respect D.I.D. No. 66/07 & LCA No. 14/09 Page 31 out of 37 of the payments made to the employees, however, he cannot produce the same at this stage.
It is further seen from the record that the workman vide the evidence of WW2 Sh. Subhash Kumar, Inspector of the Income Tax at ward 27(2), Vikas Bhawan, DBlock, New Delhi, who has brought the record of Sh. Baljinder Singh Butalia, Proprietor of the management M/s Victoria Printing Inks & Chemicals for the Assessment year 200506 and 200607 which are the income tax returns Exts.WW2/1 to WW2/6, on record, has been able to prove that the management was functioning at the residential premises at J37, Kirti Nagar, New Delhi110015 of Sh. Baljinder Singh Butalia, Proprietor of the management during the financial years w.e.f. 01.04.2004 to 31.03.2005 (Assessment year 200506) and w.e.f. 01.04.2005 to 31.03.2006 (Assessment year 200607) and accordingly, I find from the record that the stand of the management that the establishment of the management had been closed down w.e.f. 31.12.2003 when it had vacated its premises at 10/60C, Kirti Nagar Industrial Area, New Delhi110015 stands falsified, on record.
In view of my above observations and findings, I find that the management has not been able to discharge the onus of proving the issue no.1 viz. Whether the management has closed w.e.f. 31.12.2003 as alleged in preliminary objection no.1 of the written D.I.D. No. 66/07 & LCA No. 14/09 Page 32 out of 37 statement, the onus of proving of which was admittedly upon the management and accordingly, the same is decided in favour of the workman and against the management.
Issue no.2.
In view of my findings on the issue no.1, as above, I find that it has been proved, on record, by way of the testimony of the workman (WW1) along with that of (WW2) Sh. Subhash Kumar, Inspector of the Income Tax at ward 27 (2), Vikas Bhawan, DBlock, New Delhi along with Exts. WW1/A, WW1/1 to WW1/6 and Exts.WW2/1 to WW2/6, as abovesaid, on record, that the management had been functioning at the admitted residential premises viz. J37, Kirti Nagar, New Delhi110015 of Sh. Baljinder Singh Butalia, Proprietor of the management during the financial years 01.04.2004 to 31.03.2005 and 01.04.2005 to 31.03.2006 and accordingly the workman has been able to prove, on record, that he had been working with the management at the said premises w.e.f. 02.01.2004 (consequent to shifting of the management from the premises at 10/60C, Kirti Nagar Industrial Area, New Delhi110015 whereat the management had been functioning prior to vacation of the said premises on its part on 31.12.2003) till 27.09.2006 as alleged by him as also that his services had been terminated on the part of the management on the said date and that he had not been paid his earned D.I.D. No. 66/07 & LCA No. 14/09 Page 33 out of 37 wages for the said period by virtue of the stand of the management that it had closed down its establishment on/w.e.f. 31.12.2003 at 10/60C, Kirti Nagar Industrial Area, New Delhi110015 having been found falsified, on record, vide my findings on issue no.1 as framed in this regard, as abovesaid, on record. Admittedly, the workman by virtue of being in the employment of the management since 1975 as admitted by the MW1 Sh. Baljinder Singh Butalia, Proprietor of the management in his cross examination on behalf of the workman in management evidence has completed 240 days of service in the year preceding the date of his alleged termination of service on the part of the management viz. 27.09.2006 in the instant case as required under the provisions of Section 25B of the Industrial Disputes Act, 1947 (as amended upto date), and accordingly is entitled to the protection of the provisions of Section 25F of the Industrial Disputes Act, 1947 (as amended upto date) as on the said date.
In view of the stand of the management that it had closed down its establishment on/w.e.f. 31.12.2003 which has been found to be falsified, on record, vide my finding on issue no.1, as above, as also in view of the management having not been able to prove, on record, its allegation that the account of the workman had been settled on its part on the closure of its establishment on 31.12.2003 as alleged by virtue of the management having not filed/proved any document in D.I.D. No. 66/07 & LCA No. 14/09 Page 34 out of 37 respect of the workman to the said effect, on record, as admitted by the MW1 Sh. Baljinder Singh Butalia, Proprietor of the management in his cross examination on behalf of the workman in management evidence, when he states I have not filed any document to the said effect, on record, it is found that the management has admittedly not complied with the provisions of Section 25 F of the Industrial Disputes Act, 1947 (as amended upto date) qua the workman on the date of his alleged termination of services on its part viz. 27.09.2006 in the instant case and accordingly the termination of the services of the workman on the said date is held to be illegal. The issue no.2 is accordingly, decided in favour of the workman and against the management.
Issue no.3.
It is seen from the record that though the workman has alleged that he is unemployed from the date of termination of his services on the part of the management and has not been able to secure any employment despite efforts by way of his affidavit by way of evidence Ex.MW1/A as also it has been alleged by the management by way of affidavit by way of evidence of MW1 Sh. Baljinder Singh Butalia, Proprietor of the management, that the claimant owns trucks and tempos and therefore he is gainfully employed, though no evidence has been led on behalf of the D.I.D. No. 66/07 & LCA No. 14/09 Page 35 out of 37 management in this regard, on record, however, in view of the admitted position between the parties that the premises viz. J37, Kirti Nagar, New Delhi110015 whereto the management is alleged to have shifted pursuant to the vacation of the premises bearing no.10/60C, Kirti Nagar Industrial Area, New Delhi110015 on the part of the management on 31.12.2003 is the residential premises of Sh. Baljinder Singh Butalia, Proprietor of the management as is evident from the testimonies of the parties in their evidence, on record, and admittedly no commercial activity can be carried out from the same as also no evidence has been led on the part of the workman that the management has been existing even at the said residential premises of its proprietor in the financial years subsequent to 27.09.2006 the date of the alleged termination of the service of the workman on the part of the management at the said premises, it is felt appropriate that in lieu of the relief of reinstatement along with backwages and continuity of service, if any, the relief of compensation to the tune of Rs.1,50,000/ (Rupees One Lac Fifty Thousand only) be awarded to the workman and against the management apart from the sum of Rs. 1,45,045/ towards the earned wages of the workman against the management w.e.f. 02.01.2004 till 27.09.2006 the date of the alleged termination of service of the workman on the part of the management, as claimed by him vide the connected LCA bearing No.14/09.
D.I.D. No. 66/07 & LCA No. 14/09 Page 36 out of 37 The Award is passed. Vide the instant award signed copy of which has been placed in the file of LCA no.14/09, the instant D.I.D. proceedings along with the connected LCA, as above, between the parties, accordingly, stand disposed of. The Ahlmad is directed to send six copies of this award to the appropriate Government. The file be consigned to the Record Room.
Announced in the open court (Chandra Gupta)
on 21.12.2012 Presiding Officer Labour CourtX
Karkardooma Courts, Delhi.
D.I.D. No. 66/07 & LCA No. 14/09 Page 37 out of 37