Delhi District Court
Mohd. Iqbal Khan vs Tru Torn Machine (India) Ltd on 26 April, 2013
IN THE COURT OF SHRI SANJAY SHARMA
PRESIDING OFFICER : LABOUR COURTXIX
KARKARDOOMA COURTS : DELHI.
LIR No. 289/2011
Unique Case ID No. 02402C0 097232002
Mohd. Iqbal Khan
S/o Late Shri Ali Sher
R/o C144, North Gonda Gali No. 10,
Delhi 110 053 .........WORKMAN
Versus
Tru Torn Machine (India) Ltd.
505, Patparganj Industrial Area
Delhi - 110 092 .........MANAGEMENT
Date of institution of the case : 24.10.2002
Date for which Award reserved : 15.4.2013
Date of passing the award : 26.4.2013
Ref No. F.24(543)/2002/Lab./997579 dated 07.06.2002
A W A R D :
Having satisfied regarding existence of an industrial dispute
between the parties, the Dy. Labour Commissioner, Government of NCT of
Delhi in exercise of powers conferred by section 10(1)(c) and 12 (5) of the
Industrial Disputes Act, 1947 (hereinafter referred as 'Act') with Labour
Department Notification No. S11011/2/75/DK(IA) dated 14th April 1975,
referred the present dispute to this Labour Court for adjudication with the
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following terms of reference:
"Whether the services of Shri Mohd. Iqbal
Khan S/o Shri Alisher have been terminated
illegally and/or unjustifiably by the
management, and if so, to what sum of money
as monetary relief alongwith consequential
benefits in terms of existing laws/Govt.
Notifications and to what other relief is he
entitled and what directions are necessary in
this respect?"
2. Workman filed the present claim against the management
management claiming that he has been working with the management for the
last more than 14 years as Turner at last drawn wages of Rs. 3400/ per month
and he never gave any chance of complaint to the management. He alleged that
he was working with M/S Tru Torn Mechanical Works and M/S Tru Torn
Machine Pvt. Ltd. running at the same address. He further alleged that on
21.6.2001 he fell ill and he was admitted at Indira Gandhi Karamchari Rajya
Bima Hospital, Jhilmil where he was operated for stomach and he was
discharged on 21.7.2001 and remained on medical leave till 29.8.2001. He
further alleged that on 30.8.2001 when he went to resume his duties, he was
refused duties by Shri Kuldip Singh and his services were illegally terminated.
He sent a demand notice dt. 08.11.2001 which was returned with report that no
such firm is existing at the said address but on 03.12.2001 Shri Kuldip Singh
himself informed the Labour Inspector that the management is existing at the
said address. Accordingly, the workman has prayed for his reinstatement with
LIR No. 289/2011 2 of 11
full back wages and continuity of service alongwith other consequential
benefits.
3. After the filing of claim, the management did not appear and was
proceeded against exparte vide order dt. 05.2.2003. The workman led his
evidence and after hearing arguments, an Exparte Award was passed on
15.5.2004 vide which the claim of the workman was allowed.
4. Vide Order dt. 21.8.2009 in WP (C) No. 6951/2005 of the Hon'ble
High Court, the Award dt. 15.5.2004 was set aside and the present case was
remanded back to this Court with directions to decide the case afresh after
hearing both the parties as per law.
5. The management appeared and opposed the claim by filing WS
wherein all the allegations were refuted specifically and categorically. It was
submitted on behalf of the management that there is no masterservant
relationship between the workman and the management and that the workman
has not worked for 240 days continuously in an year preceding his alleged
termination. It was further submitted that the management was incorporated in
the year 1998 while the workman has claimed that he has been working for
more than 14 years.
6. The workman did not file the rejoinder. From the pleadings of the
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parties, following Issues were framed on 29.4.2010 :
1.Whether there is employeremployee relationship between the management and the claimant? OPW
2. If the answer to above issue is in affirmative, whether the workman has rendered continuous service of 240 days in the preceding year? OPW
3. Whether the services of the workman have been terminated illegally and/or unjustifiably by the management? OPW
4. Relief.
7. The workman led his evidence and examined himself as WW1. He further examined Shri VK Rao - Labour Inspector as WW2 and Shri Sani Ram as WW3 (wrongly numbered as WW2 again) and closed his evidence. The Management also led its evidence and examined Shri Mahesh Kumar Yadav - employee of management as MW1 and Shri Sanimuddin from ESIC Office as WW2.
8. I have heard Shri Suresh Gupta Ld. AR for the workman and Shri Rohit Singhal - Ld. AR for the Management. My issuewise findings are as under :
ISSUE No. 1 :
9. In Workmen of Nilgiri Cooperative Marketing Society Ltd. Vs. State of Tamil Nadu and others III (2004) SLT 180 SC, the Hon'ble Apex Court while relying upon other precedents held that the person who sets up a LIR No. 289/2011 4 of 11 plea of existence of relationship of employer and employee, the burden would be upon him to prove it.
10. Thus, the onus to prove this issue was upon the workman. He deposed that earlier the management was functioning at Gali no. 8, 7172, West Guru Angad Nagar, Delhi and that he was appointed by Sh. Kuldeep Singh. He further deposed that two other firms namely M/s Tru Torn Mechanical Works and M/s Tru Torn Machines Pvt. Ltd. were also running from the same premises and all the employees were common to the three firms, working under the control and supervision of Sh. Kuldeep Singh. Later on, these firms were shifted to 505, Patparganj Industrial Area along with all the employees.
11. In his cross examination, he relied upon his ESI Card Ex. WW1/11 which was having employer code as 1127048. He admitted in his cross examination that the employer code of the management is 105019266. It was argued by the Ld. ARM that the workman was not an employee of the management but as per his ESI card, he was an employee of M/s Tru Torn Machines Pvt. Ltd. which fact has been proved by WW3 (wrongly numbered as WW2 Sh. Sani Ram) from the office of the ESI department. It is worth noting that Sh. Sani Ram also deposed from his records that the said company ie. M/s Tru Torn Machines Pvt. Ltd. to whom the ESI card of the workman belonged to is owned by Smt. Ravinder Kaur W/o Sh. Kuldeep Singh R/o 7172, Gali No. 8, Guru Angad Nagar (West) Delhi. He also admitted that some other firms under LIR No. 289/2011 5 of 11 the management were running at the same address.
12. WW2 the Labour Inspector deposed that he had visited the office of the management M/s Tru Torn Mechanical Works at 505, Patparganj Industrial Area and had met Sh. Kuldeep Singh. He also admitted that there existed 23 firms in the same premises in the first name "Tru" but could not depose the full name. In his cross examination, he failed to place on record any complaint or statement of Sh. Kuldeep Singh and stated that he had not taken any documentary evidence regarding the status of Sh. Kuldeep Singh but added that he told him that he is the Proprietor of the management. Lastly he deposed that he could not say if the workman was under employment with the present management. On the strength of this testimony, Ld. ARM submitted that it is of no help to the workman and is bound to be rejected.
13. The management examined its witness namely Sh. Mahesh Kumar Yadav who deposed that he has been retained by the management for maintenance of records of its employees. He nowhere deposed his designation with the management company. Though the management has claimed itself to be a limited company but neither any resolution from the Board of Directors nor any authorization has been filed empowering or authorizing MW1 to depose in the case which is a foremost requirement under the Companies Law. This in itself is sufficient to ignore the testimony of MW1. However, in order to explore the truth, his testimony is being referred to.
LIR No. 289/2011 6 of 11
14. It is clear from his testimony that he had deliberately tried to evade relevant questions. He deposed in the cross examination that he could not say if the companies namely M/s Tru Torn Mechanical Work and M/s Tru Torn Machines were also running at the same address, though this fact has been verified by WW2 and WW3. He further deposed that the Director of the management company is only Sh. Fakir Singh and there is no other Director but then checked himself and deposed that he do not know. He further showed ignorance about the full address of Sh. Fakir Singh or that he had a son namely Kuldeep Singh and daughter in law namely Ranjeet Kaur. A person working in a company and maintaining its record cannot be expected to be having no knowledge about the address and particulars of the family members of the only Director of his company. This clearly shows that he deliberately avoided to reveal the truth. He further pleaded ignorance to the facts i.e. Whether Tru Torn Mechanical Works was also functioning at Patparganj, Whether the ESI card of the workman Ex. WW1/11 was issued at the aforesaid address of Patparganj and whether Sh. Fakir Singh, his son Kuldeep Singh and his wife Smt. Ranjeet Kaur were running separate firms namely M/s Tru Torn Mechanical Works and M/s Tru Torn India Ltd. at the same address. However, he did not also denied this fact. A person working at a particular place cannot be presumed to be oblivious of his surroundings and unknown to the other organizations working in the same premises which was a two storey premises as deposed by WW2.
15. It is pertinent to note that there had been no cross examination of LIR No. 289/2011 7 of 11 the workman regarding his deposition in examination in chief about running of two other firms from the same premises and their shifting from West Guru Angad Nagar to Patparganj along with the employees and that all the employees were under control and supervision of Sh. Kuldeep Singh except mere suggestion that Kuldeep Singh had not relation with the management company to which the workman not only denied but volunteered that he had worked with Kuldeep Singh in his firm.
16. It is clear from the testimonies of the witnesses examined by the parties and referred to hereinabove that there had been a functional integrality between all the three firms that is to say M/s Tru Torn Machine (India) Ltd., M/s Tru Torn Mechanical Works and M/s Tru Torn Machines Pvt. Ltd., they being run by the same family and at the same premises but only in order to escape the hardships of the ID Act, separate ESI and PF numbers were obtained after getting separate registrations. The fact that the workman and other employees were common to all the three firms/companies could not be challenged. As already observed, the testimony of MW1 is totally unreliable. The test of functional integrality has been laid down in S.G. CHEMICAL AND DYES TRADING EMPLOYEES' UNION Vs. S.G. CHEMICALS AND DYES TRADING LIMITED AND ANOTHER 1986 SCC (2) 624 which has to be satisfied in such cases as the one in hand. It is thus, clear that the workman was an employee of the management which was having functional integrality with the other similar companies, having common first name and LIR No. 289/2011 8 of 11 just in order to avoid the provisions of the ID Act, he was shown to be an employee of another company. It is also clear that Sh. Kuldeep Singh was de facto running all the companies.
17. The management has though denied to have received the demand notice however, MW1 again showed ignorance regarding receipt of the demand notice but admitted the address mentioned on the notice Ex. WW1/2, Ex. WW1/3 and postal receipt Ex.WW1/6 to be of the management. The issue is accordingly decided in favour of the workman and against the management. ISSUE NO.2
18. The other plea raised by the management was that the workman had not completed 240 days of service in the 12 months preceding his termination. The onus to prove this issue was also upon the workman. He relied upon his ESI Card, Ex.WW1/11 on which his date of appointment has been shown to be 08.04.1996. He was allegedly terminated from services on 30.08.2001. Once it has been held that the workman was an employee of the management while deciding issue no. 1 and there is nothing to show that there was any break in service from 1996 to 2001, it becomes clear that the workman worked continuously for more than 240 days in the 12 months preceding his termination. Accordingly, this issue is also decided in favour of the workman and against the management.
LIR No. 289/2011 9 of 11 ISSUE NO. 3
19. It has already been held that the workman was an employee of the management and he rendered more than 240 days of service in the 12 months preceding his termination, therefore, the provisions of Section 25F become applicable to him. It has no where come on record that any notice of termination was served upon the workman or one month's salary in lieu of notice was paid to him. It is also not the case of the management that any memo or show cause notice or charge sheet was issued to him or that any domestic inquiry was conducted against him or even that he was paid any service compensation. Hence, there is no doubt in holding that his services were illegally terminated. Hence, this issue is also decided in favour of the workman and against the management.
ISSUE NO. 4/RELIEF
20. The workman had contended in his claim as well as in his examination in chief that he is unemployed since the date of his termination. There was no cross examination of the workman on this aspect. MW1 in his deposition (examinationinchief) has not even whispered that the workman is gainfully employed and has failed to place on record any evidence to show the same. Hence, it is held that the workman is unemployed since his services were terminated.
21. Already about twelve years have elapsed since the workman raised LIR No. 289/2011 10 of 11 the dispute, and therefore, it will not be just and proper, ordering his reinstatement also in view of the strained relations between the parties and a lump sum compensation would serve the ends of justice as also held in 2009 LLR 1 SC U.P. State Electricity Board vs Laxmi Kant Gupta, 2009 LLR 871 SC Narendra Kumar vs The Regional Manager, Punjab National Bank & Ors., 2009 LLR 966 SC Jagbir Singh vs Haryana State Agriculture Marketing Board & Anr., 2008 LLR 555 SC Ghaziabad Development Authority & Anr. Vs Ashok Kumar & Anr. and 2009 LLR 1281 SC Ashok Kumar Sharma vs Oberoi Flight Services that reinstatement is an exception and normally the court must give a lump sum amount towards compensation instead of a reinstatement.
22. Accordingly, the management is directed to pay a lump sum compensation of Rs.1,00,000/ to the workman within one month of the publication of this award failing which it shall carry an interest @ 9% per annum till the date of actual payment.
The reference is answered accordingly.
Copies of award be sent for publication and case file be consigned to Record Room.
ANNOUNCED IN OPEN COURT ON 26th Day of April 2013 (SANJAY SHARMA) PRESIDING OFFICER LABOUR COURTXIX KARKARDOOMA COURTS, DELHI LIR No. 289/2011 11 of 11