Delhi District Court
Co. Ltd. vs . P. C. Pal, Judge Of Second Industrial ... on 23 July, 2008
-: 1 :-
IN THE COURT OF SH. I.S. MEHTA:
PRESIDING OFFICER: INDUSTRIAL TRIBUNAL NO.I:
ROOM NO.2: KARKARDOOMA COURTS: DELHI.
ID No. 15/99
BETWEEN
The management of
1.M/s Contemporary Creations 44, Furniture Block, Kirti Nagar, New Delhi-15.
2. M/s Contemporary Creations C-3, Raja Garden, New Delhi-15.
AND Its workmen as represented by All India General Mazdoor Trade Union 163, Bal Mukund Khand, Giri Nagar, Near Labour Office, Kalkaji, New Delhi-19.
Date of Institution :- 18.02.1999
Date of Reserve for Award :- 16.07.2008
Date of passing of Award :- 23.07.2008
AWARD
Secretary (Labour), Govt. of the National Capital Territory of Delhi has referred this dispute arising between the parties, named above for adjudication vide notification No.F.24(798)/99-Lab./6807-12 Dated 16.02.99 with the following term of the reference:-
"Whether the management has resorted to lock out in respect of workmen whose name appear in Annexure-'A' or their services have been terminated and illegally and/or unjustifiably by the -: 2 :- management and if so, to what relief are they entitled and what directions are necessary in this respect?"
ANNEXURE- 'A' F.24(798)/99-Lab./6807-12 S. No. Name of the workmen S. No. Name of the workmen 1 Bhopal Singh Vohra 38 Sakal Deep 2 Kesar Singh 39 Nandan Singh 3 Sudha Karan 40 Shailesh 4 Sita Ram 41 Dalel Singh 5 Lalit Kumar 42 Bhagwan Dass 6 Shanker Lal 43 Raj Bihari 7 Soman Kumar 44 Sheela Sharma 8 Yash Pal Singh 45 Neelam 9 Raj Kumar 46 Satish Gupta 10 Shambhu Singh 47 Jaiveer Singh 11 Ram Bachan 48 Vidhya Bhusan 12 Shailender Kumar 49 Vijay Kumar 13 Manoj Kumar 50 Kamla Devi 14 Virender Kumar 51 Ram Singh 15 Chander Shekhar 52 Mohd. Chand 16 Ram Sumer 53 Rajesh Kumar 17 Bharam Dev 54 Parvati Devi 18 Ram Avadh 55 Bindu 19 Ram Adharay 56 Renu 20 Murli Dhar 57 Heena 21 Ranjeet Kumar 58 Parveen 22 Roop Kala 59 Meena 23 Bhagwani Devi 60 Hari Nath 24 Rajinder Singh 61 Sada Ram Ranga 25 Thakur Singh 62 Prem Kumar -: 3 :- S. No. Name of the workmen S. No. Name of the workmen 26 Ravi Bhusan 63 Kailash 27 Mukesh Sharma 64 Krishna Avtar 28 Ekwant Singh 65 Isliel 29 Harish Singh 66 Uma Shanker 30 Mahinder Singh 67 Muttoo Swami 31 Vishan Singh 68 Jain R 32 Ram Garib 69 Shree Parkash 33 Chander Veer 70 Meena 34 Surjeet 71 Mahinder 35 Saroj Verma 72 Parmod 36 Kharu Nisha 73 Chand Ram 37 Km. Sudha Karan 74 Ram Kewal
1. In the statement of claim, it is stated that the workmen concerned were working with the management on different posts on different salaries. The management was not providing the legal facilities to its workmen such as Annual Leave, Weekly Leave, Bonus, Overtime etc. Thereafter, workmen approached to the labour authorities and due to this act of workmen, the management, without giving any prior notice or charge-sheet or without any prior approval from the appropriate authority, locked out the department w.e.f. 24.12.1998. It is further stated that the management is getting its work done at some other place. Thereafter, the workmen sent a demand notice to the management through the Union, but no reply was received. The workmen also made complaint to Assistant Labour Commissioner, but the management neither removed the lock nor took the concerned workmen on duty. Conciliation proceedings were also initiated but resulted into failure. It is -: 4 :- further stated that the management was taking the work from the workmen concerned for 12 hours but was paying wages only for 8 hours and prays for direction to remove the illegal lock out and granting of reinstatement with full back wages alongwith consequential benefits to the concerned workmen.
2. The management filed written statement stating therein that the present claim is not maintainable as the management had closed the Pressing and Finishing Department consisting of 41 workmen w.e.f. 24.12.1998 as per notice of the management dated 23.12.1998 U/s 25F read with section 25 FFF of the ID Act and offered due wages to the workmen, which they refused and other workmen working with the management resorted to illegal strike and forced to close the other departments of it on 26.12.1998. On 07.01.1999, the manufacturing process of the management was virtually closed and due to the non-co-operation of the workmen and differences in the partners, the management decided to close the company/firm w.e.f. 01.04.1999 and as such, there is no firm in the name of M/s Contemporary Creations w.e.f. 01.04.1999 as per the notice of the management. The management in view of the closure of the department, offered the due wages/earned wages to the workmen by hand as per notice and also by cheques but the workmen did not accept the same. It is further stated that the workman Sh. Jayan R. resigned from the job and his dues were also disbursed/offered but the said workman also resorted to remain with the other workmen. The management did not terminate the services of the -: 5 :- workmen. However, it is the closure of the department as there were less than 100 employees working the management at the time of closing the department. It is further stated that the workman at serial no.42 namely Sh. Bhagwan Dass has already received and got his cheque cleared. Most of the workmen out of the said list, have already accepted their dues from the management. The workmen from serial no. 55 to 59 & 74 are not the employees of the management. Other allegations made in the statement of claim have been denied and prays that the claim of the workmen be rejected.
3. Rejoinder filed, wherein all the contents made in the written statement have been controverted and the averments made in the statement of claim are reiterated.
4. Out of the pleadings of the parties, followings issues were framed :-
1. Whether the statement of claim filed by the workmen is not maintainable, in view of the preliminary objections raised in the written statement?
2. As per terms of reference.
5. The workmen examined Sadarao Ranga as WW1, Ms. Khairunissa as WW2, Promod as WW3, Satish Gupta as WW4, Krishan Avtar as WW5, Neelam Nasra as WW6, Sudhakaran as WW7, Shanker Lal as WW8, Jayan R as WW9, Kamla as WW10, Sheela as WW11, Ms. Sudha Karan as WW12, Raj Kumar as WW13, Vijay Kumar as WW14, Roop Kala as WW15, -: 6 :- Bhagwani as WW16, Nandan Singh as WW17 & Lalit Kumar as WW18, who tendered their respective affidavits and relied upon their respective documents. On the other hand, the management examined MW1- Sh. N. K. Bhargav, MW2- Sh. Jagdish, MW-3 Mr. K. R. Verma, MW4- Sri Ram Pandey, who also tendered their respective affidavits and proved respective documents.
6. Ld. AR of the workmen Sh. T. S. Rajput has submitted that the workmen were working with the management on different posts on different salaries. The management was not providing the legal facilities to its workmen such as Annual Leave, Weekly Leave, Bonus, Overtime etc. Thereafter, workmen approached to the labour authorities and due to this act of workmen, the management got annoyed. The management, thereafter, without giving any prior notice or charge-sheet or without any prior approval from the appropriate authority, locked out the department i.e. work place w.e.f. 24.12.1998. Ld. AR of the workmen further submitted that the management is getting its work done at some other place. On this, the workmen sent Demand Notice to the management through the Union, but no reply was received. The workmen also made complaint to Assistant Labour Commissioner, but the management neither removed the lock nor took the concerned workmen on duty. Conciliation proceedings were also initiated but resulted into failure. Ld. AR of the workmen further submitted that the management was taking the work from the workmen concerned for 12 hours -: 7 :- but was paying wages only for 8 hours. Ld. AR of the workmen further prays that direction be given to the management to remove the illegal lock out and granting of reinstatement with full back wages alongwith consequential benefits to the concerned workmen.
7. On the other hand, Ld. AR of the management Sh. Jagdish Sethi has submitted that present claim is not maintainable as the management had closed the Pressing and Finishing Department consisting of 41 workmen w.e.f. 24.12.1998 as per notice of the management dated 23.12.1998 U/s 25F read with section 25 FFF of the ID Act and offered due wages to the workmen which they refused and other workmen working with the management resorted to illegal strike and forced to close the other departments of it on 26.12.1998. On 07.01.1999, the manufacturing process of the management was virtually closed and due to the non-co-operation of the workmen and differences in the partners, the management decided to close the company/firm w.e.f. 01.04.1999 and as such, there is no firm in the name of M/s Contemporary Creations w.e.f. 01.04.1999 as per the notice of the management. The management has not terminated the services of the workmen. Infact, the management has closed down its business. Therefore, the workmen are not entitled for any relief as claimed in the statement of claim.
-: 8 :-8. ISSUE NO.1 & 2
Issue no.1 & 2 are taken together as they are interconnected. It has been held by Hon'ble Supreme Court of India in case titled as M/s Parry and Co. Ltd. Vs. P. C. Pal, Judge of Second Industrial Tribunal, Calcutta and others 1970 LAB.I.C.1071 (Vol.3, C. N. 233)-AIR 1970 SC 1334(V 57 C
280), that -
"A person must be considered free to so arrange his business that he avoids a regulatory law and its penal consequences which he has, without the arrangement, no proper means of obeying.
It is within the managerial discretion of an employer to organise and arrange his business in the manner he considers best. So long as that is done bona fide it is not competent for a tribunal to question its propriety. If a scheme for such reorganization results in surplusage of employees no employer is expected to carry the burden of such economic dead- weight and ret renchment has to be accepted as inevitable, however unfortunate it is, so long as it is not vitiated by considerations of victimisation or unfair labour practice."
9. The workmen in their statement of claim have stated that the workmen concerned were working with the management on different posts on different salaries. The management got annoyed, when the workmen requested for annual leave, weekly leave, bonus, overtime etc. which are due as per law and locked out the department w.e.f. 24.12.1998 and started getting its work done from some other place. Workmen, thereafter, sent demand notice through Union. The management has not given reply to the demands raised by the workmen. Thereafter, the workmen also made -: 9 :- complaint to Labour Commissioner. Conciliation proceedings were initiated but nothing has come out in favour of the workmen. The lock out is illegal and workmen be reinstated with full back wages.
10. The defence taken by the management in its Written Statement is that the management has closed the Pressing and Finishing Department consisting of 41 workmen w.e.f 24.12.98 as per notice of the management dated 23.12.98 u/s 25 F r/w sec. 25 FFF of the ID Act and offered due wages to the workmen, which they refused and other workmen working the management resorted to illegal strike and forced to close the other department of it on 26.12.98. On 07.01.99, the manufacturing process of the management was virtually closed and due to non-cooperation of the workmen and differences in the partners, the management decided to close its firm w.e.f. 01.04.99. The management offered due wages/earned wages to the workmen as per notice. Cheques were sent but the workmen did not accept the same. The management did not terminate the services of the workmen. The management has closed down the business as the employees, working with the management, were less than 100.
11. The onus to prove that at the time of closure of the establishment, there were more than 100 workmen, is on the workmen. In the reference received on behalf of workmen, there are 74 workmen, as shown in the Annexure-A. The statement of claim is signed by about 28 workmen. The -: 10 :- workmen neither in their statement of claim nor in their respective affidavits have specifically stated that at the time of closing of the establishment, there were more than 100 workmen working with the management. Therefore, the workmen failed to prove that at the time of closing of establishment, more than 100 workmen were working with the management to attract the provision of section 25N of the Industrial Disputes Act.
12. The management has closed the Pressing and Finishing Department consisting of 41 workmen w.e.f. 24.12.1998 as per the notice of the management dated 23.12.98 u/s 25 F read with section 25FFF of the ID Act and under rule 76 under the Industrial Dispute Rules, 1957 and offered due wages to the workmen which was refused by the workmen and other workmen working with the management resorted to illegal strike and the management was forced to close their other departments of it on 26.12.1998, which resulted into closing of the firm w.e.f. 01.04.1999. The management has examined Sh. N. K. Bhargava, the Partner, who reiterated the contents of the Written Statement and proved his affidavit Ex.MW1/A, notice dated 23.12.1998 Ex.MW1/1 for retrenching the 41 workmen and offered their due wages and other dues and further proved notice for closure of the firm and offering of dues under section 25 F read with section 25FFF of the Industrial Disputes Act Ex.MW1/2 and MW1/3. MW1 has further proved notices and P forms for informing the Labour Department about the closure of the firm vide registered AD receipts Ex.MW1/4 to MW1/12 and information was also sent to -: 11 :- Apparel Export Promotion Council, PF and ESI, which are Ex.MW1/14, MW1/15 and MW1/16 vide registered AD receipt Ex.MW1/17 and information about closure of the Undertaking vide registered AD receipt Ex.MW1/13 to MW1/13C.
13. WW1 Sadarao Ranga has admitted that cheques were sent by the management to him which were returned. WW1 has further admitted during the cross examination that he has refused to receive the cheque before the Conciliation Officer too and he has accepted only dues till closure.
WW2 Khairu Nissa, during the cross examination, has admitted that demonstration was held after 23.12.98 by the workmen, which is reproduced as under:
"It is correct that a demonstration was held after 23.12.98 by the workmen. Vol. It was because the mgt. had refused duties despite the fact that the workmen remained from morning to evening but dharna was there."
14. WW3 Pramod, during the cross examination, has admitted that he has received earned wages for the entire period, he worked with the management. He has further admitted that he received the wages with regard to the last month before the Conciliation Officer. He has further admitted that Mr. Bhargava was looking after the production work of Contemporary Creations, which is reproduced as under:
"It is correct that it is Mr. Bhargava who was looking after the production work of -: 12 :- Contemporary Creations and he was a partner in the said concern."
15. WW4 Satish Gupta has also admitted that Cheque Ex.WW4/M-3 was sent by the management alongwith letter dated 31.12.98 Ex.WW4/M-4. He has further admitted that full and final dues were offered to him before the Conciliation Officer, which is reproduced as under:
"It is correct that my full and final dues were offered to me before the conciliation officer."
He has also admitted that his earned wages were paid to him before Conciliation Officer. He has also admitted that management is partnership concern.
16. WW5 Krishnavtar, during the cross examination, has admitted that Cheque Ex.WW5/M-1 alongwith letter Ex.WW5/M-2 vide envelope Ex.WW5/M-3 might have been sent to me. He has also admitted that before the Conciliation Officer, he was paid his earned wages.
WW6 Neelam Nasra has admitted during the cross examination that she appeared before the Conciliation Officer at Karampura and admitted that her salary was paid to him during the conciliation.
WW7 Sudhakaran too during the cross examination, admitted that earned wages were paid to him by the management in the Labour Office.
WW8 Shanker Lal has admitted during the cross examination that earned wages due to him were paid by the management before the labour -: 13 :- authorities.
WW9 Jayan R. admitted that the management offered the cheque to him.
WW10 Kamla, during the cross examination, has admitted that she was paid earned wages in the labour office.
WW11 Sheela Sharma, too, admitted during the cross examination that earned wages were paid to her by the management before the Conciliation Officer.
WW12 Ms. Sudha Karan, during the cross examination, has also admitted that she has received earned wages before the Conciliation Officer.
WW13 Raj Kumar also admitted that he has received earned wages before the Conciliation Officer.
17. WW14 Vijay Kumar, during the cross examination, has admitted that the management closed the Finishing Department on 24.12.98, which is reproduced as under:
"It is correct that the management closed the Finishing Department on 24.12.98."
He has also admitted that earned wages were paid to him before Conciliation Officer.
18. WW15 Roop Kala, too, during the cross examination, has admitted -: 14 :- that she has received earned wages before the Conciliation Officer.
WW16 Bhagwani Devi has also admitted during the cross examination that earned wages were paid to her before the Conciliation Officer.
19. WW17 Nandan Singh, during the cross examination, has admitted that he has got his dues before the Conciliation Officer. He has further admitted that the management has taken the stand before the Conciliation Officer that the department has been closed and the workmen can receive their due payments, which is reproduced as under:
"It is correct that the management had taken a stand before conciliation that the department has been closed and the workmen can receive their due payments."
WW18 Lalit Kumar, during the cross examination, has admitted that earned wages were paid to him before the Conciliation Officer.
20. The documents of the management and admission on the part of WW14 Vijay Kumar show that the management closed the Finishing Department on 24.12.98 and there was unrest going on after 23.12.98 as admitted by WW2 Khairu Nissa. The management, thereafter, paid their earned wages before the Conciliation Officer as admitted by the workmen. The documents on record show that manufacturing process of the management was closed on 07.01.99.
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21. The onus to prove that infact the management is getting its manufacturing work done from outside sources, is upon the workmen. There is no cogent as well as sufficient oral evidence to prove that infact the management is getting its production work done from the outside sources to show the action of the management to close down the department.
22. From the facts and circumstances and discussions made above, it is clear that at the relevant time, there were less than 100 workmen, working in the firm i.e. Contemporary Creations. Thereafter, the management closed the Pressing and Finishing Department on 24.12.98 and subsequently, there was unrest in the firm in the form of strike, as a result of which, the management was forced to close down its firm on 07.01.99 and offered to pay the dues which was refused. As such, both the issues are decided in favour of management and against the workmen. However, the management is liable to pay the closure compensation. The final closure compensation which is not been paid to the workmen by the management as admitted by the management during the course of arguments, is as under:
S. Name Earned Earned Bonus Service Gratuity Notice Total Adv. Total No wages Leave comp. Pay Already stands paid 1 Sada Ram 1870 NIL 429 NIL NIL 3200 5499.05 NIL 5499.05 2 Khairunissa 1445.65 NIL 455 NIL NIL 2361 4261.65 NIL 4261.65 3 Parmod Kr. 1215.35 NIL 1573 7083 8173 2361 20405.35 NIL 20405.35 4 Satish Gupta 1511.3 781 1613 5331 NIL 2361 11597.3 4000 7597.3 5 Krishan Avtar 1920 605 1974 6774 NIL 3000 14273 NIL 14273 -: 16 :- S. Name Earned Earned Bonus Service Gratuity Notice Total Adv. Total No wages Leave comp. Pay Already stands paid 6 Neelam Nasra 1347.65 63 986 2453 NIL 1950 6699.65 NIL 6699.65 Sudhakaran 1878.85 142 2009 2178 NIL 2935 9142.85 2500 6642.85 7 Nair 8 Shanker Lal 1311.3 286 1458 4327 NIL 2361 10338 NIL 10338 Jayan R. NIL 1132 2465 NIL NIL NIL 3597 NIL 3597 9 (Resign case) 10 Kamla Devi 1393.75 NIL 717 NIL NIL 1450 3562.75 NIL 3562.75 11 Sheela Sharma 1247.65 157 1134 2453 NIL 1950 6941.65 NIL 6941.65 Km. 1511.3 209 1493 2870 NIL 2361 8544.3 NIL 8544.3 Sudhakaran 12 Nair 13 Raj Kumar 1511.3 NIL 478 NIL NIL 2361 4350.3 NIL 4350.3 14 Vijay Kumar 658 NIL 418 NIL NIL 2361 3437 2000 1437 Roopkala Not paid 252 1287 2453 NIL 1950 7189.65 NIL 7189.65 Devi being absent 15 1247.65 Bhagwani 1247.65 425 1210 2453 NIL 1950 7285.65 NIL 7285.65 16 Devi 17 Nandan Singh 2929.5 708 1335 975 NIL 1950 7897.5 NIL 7897.5 Lalit Kumar 200 1742 3495 9600 NIL 4800 22908.65 NIL 22908.65 (Supervisor) 18 3071.65 19 Yashpal Rana 1117.3 NIL 463 NIL NIL 2361 3941.3 NIL 3941.3
23. In the present case, the workmen examined, are not given final dues i.e. Closure Compensation as admitted by the management. The management has not deposited the said amount of the workmen with the Court. The management used the said amount. Therefore, the workmen are entitled to receive the closure compensation alongwith interest. As such, the management is directed to pay the closure compensation as detailed in para- 22 of this award to workmen (1) Sadarao Ranga, (2) Ms. Khairunissa, (3) Promod, (4) Satish Gupta, (5) Krishan Avtar, (6) Neelam Nasra, (7) Sudhakaran, (8) Shanker Lal, (9) Jayan R, (10) Kamla, (11) Sheela, -: 17 :- (12) Ms. Sudha Karan, (13) Raj Kumar, (14) Vijay Kumar, (15) Roop Kala, (16) Bhagwani, (17) Nandan Singh & (18) Lalit Kumar alongwith 12% interest w.e.f. 24.12.98 within the period of one month from the date of publication of this award. Therefore, in view of the judgment titled as M/s Parry and Co. Ltd. Vs. P. C. Pal, Judge of Second Industrial Tribunal, Calcutta and others 1970 LAB.I.C.1071 (Vol.3, C. N. 233)-AIR 1970 SC 1334(V 57 C
280), the reference is answered, accordingly. Award is passed, accordingly. ANNOUNCED IN THE OPEN COURT ON DATED : 23.07.2008.
[ I.S. MEHTA ] PRESIDING OFFICER:
INDUSTRIAL TRIBUNAL NO.I:
DELHI.