Delhi District Court
Lir No.No.4794/16, Sh. Jawala Singh vs . M/S Cosmic Apparels & on 29 April, 2019
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IN THE COURT OF Ms. VEENA RANI, PRESIDING OFFICER
LABOUR COURT SOUTH-WEST DISTRICT, DWARKA
COURTS: NEW DELHI
LIR No.4794/16 ( Old ID No:230/2012)
INDUSTRIAL DISPUTE BETWEEN :-
Sh. Jawala Singh S/o Late Sh. Puran Singh
Through Delhi Hosiery Workers Union (Regd),
1800/9, Govind Puri Extension, Kalkaji,
New Delhi-110019 .....Workman
VERSUS
Management of M/s Cosmic Apparels &
Knitwear Pvt. Ltd., C-38, Okhla Phase-1,
New Delhi-110020 .....Management
Date of receiving of reference : 16-05-2012
Date of Final Arguments : 02-04-2019
Date of final Award : 29-04-2019
AWARD
1. The Dy. Labour Commissioner (S-D), Government of NCT
of Delhi vide its order No. F.24(373) Lab./SD/2011/3624, dated
20-04-2012, referred an industrial dispute of present worker with
the above mentioned management to the Labour Court with the
following terms of reference:
"Whether Sh. Jawala Singh S/o Late Sh. Puran Singh left the job
of his own without completing 240 days in the last preceding year
or his services have been terminated illegally and/or unjustifiably
by the management;and if so, to what sum of money as monetary
relief along with other consequential benefits in terms of existing
LIR No.No.4794/16, Sh. Jawala Singh Vs. M/s Cosmic Apparels &
Knitwear Pvt. Ltd.
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Laws/Govt Notifications and to what other relief is he entitled and
what directions are necessary in this respect?"
2. Notice of the reference was issued to the Workman and he
had filed the Statement of Claim. Brief facts as stated in the
statement of claim are that the Workman had been working with
the Management as "Knitting Sample Master" since 01-01-1993.
His last drawn wages were Rs.13000/- per month. It is stated by
workman that at the time of his appointment management got
signed certain blank papers from him which can be misused by the
management.
3. It is submitted that the Workman during the tenure of his
service with the Management worked honestly and he neither gave
any chance of complaint to the Management nor any memo or
charge-sheet was issued to him by the Management. It is stated
that the management has not been given the legal facilities to the
workman like appointment letter, leave book, weekly and yearly
leave, overtime, increase in salary, transport allowance, house rent
allowance, bonus and identity proof etc. and when the workman
demanded the said facilities from the management, the
management got annoyed and terminated the services of the
workman on 12-11-2011 without paying him his earned wages
from 01-10-2011 to 21-11-2011 and without giving him any
notice.
4. It is averred that workman has filed a complaint, through
his labour union, before the Labour Department but despite the
efforts of conciliation officer the workman was not taken back at
the services nor his dues were paid by the management, therefore,
LIR No.No.4794/16, Sh. Jawala Singh Vs. M/s Cosmic Apparels &
Knitwear Pvt. Ltd.
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the present case has been referred to this Hon'ble Court by the
concerned Dy. Labour Commissioner.
5. It is stated that workman has got issued a demand letter dt.
13-12-2011 to the management for his reinstatement with full back
wages but the management did not reply to the said demand
notice.
6. It is alleged that the termination of the Workman by the
Management is illegal and he is unemployed. The Workman has
claimed relief of reinstatement with full back wages.
7. Notice of the statement of claim was issued to the
Management. Management filed his written statement and stated
that claimant was engaged on a piece rate basis only with the
agreed stipulation that the tenure of the claimant with the
management was contractually limited/restricted for four months
only w.e.f. 01-06-2011 with the further agreed stipulation to the
effect that the tenure of the claimant shall automatically come to
an end after the expiry of the said period of four months i.e. on 30-
09-2011. It is stated that claimant has not worked for 240 days
continuously with the management, therefore, the claim of the
claimant is liable to be dismissed. It is stated that claimant is not a
workman and present dispute is not an industrial dispute hence the
present proceedings are not maintainable before this court. The
management has denied all the allegations leveled by the
workman in his statement of claim and management prayed for
dropping of the present proceedings against the management.
8. From the pleadings of the parties the following issues were
framed for trial:-
LIR No.No.4794/16, Sh. Jawala Singh Vs. M/s Cosmic Apparels &
Knitwear Pvt. Ltd.
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(1) Whether the workman has completed service of 240
days in the preceding year from the alleged date of
his illegal termination ? OPW
(2) Whether his services illegally or unjustifiably
terminated by the management ? OPW
(3) Relief.
9. In order to prove his case the claimant/workman has
examined himself as WW-1 and tendered his evidence by way of
affidavit Ex.WW1/A which bears his signature at point A and B
and in his evidenciary affidavit WW1 has reiterated the contents
of his claim. Workman has relied upon the documents Ex.WW1/1
i.e. conciliation proceedins before the conciliation Officer and
Demand notice is Ex.WW1/2.
The workman/WW1 was cross examined by the AR of the
management and the AR of the workman closed the workman's
evidence.
10. The management has examined Sh. Gurpreet Singh Walia,
their Authorized Representative, as MW1, who has filed his
evidence by way of affidavit which is Ex. MW1/A bearing his
signature at point A and B, and has reiterated the contents of the
written statement. He relied upon the documents Ex.MW1/1 to
Ex. MW1/2. Ex. MW1/1 is authority letter in favour of the MW1.
Already exhibited document i.e. Ex. WW1/M1 is letter dt. 01-09-
2011 given to workman by the management and Ex. WW1/M2 is
remuneration showing the payment given to the workman on piece
rates basis.
However, the cross examination of MW1 was deferred but
LIR No.No.4794/16, Sh. Jawala Singh Vs. M/s Cosmic Apparels &
Knitwear Pvt. Ltd.
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thereafter despite repeated opportunities MW1 has failed to
produce himself for the cross examination by AR of the workman,
therefore, the ME was closed vide order dt. 04-09-2018 and the
matter was fixed for final argument.
11. I have heard the Authorized Representative of the
Workman. The AR of the Management did not appear to address
their part of final argument. I have perused the records avbailable
on court file. My findings on the issues are as under:-
12. ISSUE No.1 : 240 days were completed by the
workman? OPW
In the present case the management has not denied that the
workman used to work from the place of the management. There
is no averment from the side of the management that the workman
had independently worked on his own creativity and without the
specific instructions of the management.
There are two documents on record vis-à-vis the work
relationship of the workman with the management-herein:
1. Ex. WW-1/M1 : Letter of appointment dated 01.06.2011
appointing the workman-herein as "flat Operator" on piece-
rate basis for four months;
2. Ex. WW-1/M2: Calculations showing an amount along-
with the signatures of the workman-herein.
LIR No.No.4794/16, Sh. Jawala Singh Vs. M/s Cosmic Apparels &
Knitwear Pvt. Ltd.
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The workman has vehemently argued that an application
was moved wherein the various documents were sought from the
management such as muster roll, attendance register, wage
register, seniority list, ledger and voucher etc. However, the
management had not provided the said documents therefore an
adverse inference be drawn against the management particularly
because the management had avoided leading its Management-
Evidence. The weight of the evidence of the Ex.WW-1/M1 and
Ex. WW-1/M2 need to be evaluated.
The management has vehemently argued that it was a
contract and Ex. WW1/M1 is the Letter of appointment dated
01.09.2011 appointing the workman-herein as "flat Operator" on
piece-rate basis for four months. Perusal of the said document
reveals that it does not bear the signature of any of the
management-person though it bears the signature of the workman.
It is a cyclostyled letter types in English where date and name of
the workman / post of the workman have been put in hand. It
mentions of stipulation of the "piece-rate" but does not mention
the exact rate. A contract is supposed to be clear and unambiguous
which clearly lays down the conditions of the employment even if
temporary / seasonal / piece -rate.
The perusal of the document Ex.WW-1/M2 is a calculation
and it is not clear as to what is the criteria of calculation and what
are its parameters. Though it bears the signature of the workman
there is nothing to suggest that it was a well-furnished and a well-
LIR No.No.4794/16, Sh. Jawala Singh Vs. M/s Cosmic Apparels &
Knitwear Pvt. Ltd.
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informed document as far as its probative value is concerned. This
document appears to be more of a non-decisive document having
no conclusiveness as far as the "contractual nature" of the work is
concerned. It will not be out of place to mention that the document
purported to be a contract (Ex. WW-1/M1) is in English while the
signatures of the workman is in Hindi. The workman-herein is not
much educated. Therefore the contention of the workman appears
probable that he was made to sign on certain documents without
actually knowing the contents of the same. Thus the said
document Ex.WW-1/M1 does not inspire any confidence in the
eyes of law.
13. PIECE-RATE WORKMAN:
Even if the version of the management regarding "piece
rate" employee is taken to be correct. It is also necessary to see
whether a "piece rate" Flat Operator / worker can be an employee.
That is to say that even if a workman is on "piece rate" there is a
permanency of employment.
The above-said contention of the management is
unfounded. In Shining Tailors vs Industrial Tribunal , U. P {AIR
1984 SC 23, 1983 (2) SCALE 397, (1983) 4 SCC 464} it has been
clearly observed and held:
"5. We have gone through the record and especially the
evidence recorded by the Tribunal. The Tribunal has committed
LIR No.No.4794/16, Sh. Jawala Singh Vs. M/s Cosmic Apparels &
Knitwear Pvt. Ltd.
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a glaring error apparent on record that whenever payment is
made by piece rate, there is no relationship of master and the
servant and that such relationship can only be as between
principal and principal and therefore, the respondents were
independent contractors. Frankly, we must say that the Tribunal has not clearly grasped the meaning of what is the piece rate, If every piece rated workmen is an independent contractor, lakhs and lakhs of workmen in various industries where payment is correlated to production would be carved out of the expression 'workmen' as defined in the Industrial Disputes Act. In the past the test to determine the relationship of employer and the workmen was the test of control and not the method of payment. Piece rate payment meaning thereby payment correlated to production is a well-recognised mode of payment to industrial workmen. In fact, wherever possible that method of payment has to be encouraged so that there is utmost sincerity, efficiency and single minded devotion to increase production which would be beneficial both to the employer, the workmen and the nation at large. But the test employed in the past was one of determining the degree of control that the employer wielded over the workmen. However, in the identical situation in Silver Jubilee Tailoring House and Ors. v. Chief Inspector of Shops and Establishments and Anr. , J. speaking for the Court observed that the control idea was more suited to the agricultural society prior to Industrial Revolution and during the last two decades the emphasis in the field is shifted from and no longer rests exclusively or strongly upon the question of control. It was LIR No.No.4794/16, Sh. Jawala Singh Vs. M/s Cosmic Apparels & Knitwear Pvt. Ltd.
9further observed that a search for a formula in the nature of a single test will not serve the useful purpose, and all factors that have been referred to in the cases on topics, should be considered to tell a contract of service. Approaching the matter from this angle, the Court observed that the employer's right to reject the end product if it does not conform to the instructions of the employer speaks for the element of control and supervision. So also the right of removal of the workman or not to give the work has the element of control and supervision. If these aspects are considered decisive, they are amply satisfied in the facts of this case. The Tribunal ignored the well laid test in law and completely misdirected itself by showing that piece rate itself indicates a relationship of independent contractor and error apparent on the record disclosing a total lack of knowledge of the method of payment in various occupations in different industries. The right of rejection coupled with the right to refuse work would certainly establish master servant relationship and both these tests are amply satisfied in the facts of this case. Viewed from this angle, the respondents were the workmen of the employer and the preliminary objection therefore, raised on behalf of the appellant-employer was untenable and ought to have been overruled and we hereby overrule it."
The purport of the judgment in Shining Tailors vs Industrial Tribunal , U. P is clear:
1. Even if the mode of payment is by way of 'piece-rate basis' it LIR No.No.4794/16, Sh. Jawala Singh Vs. M/s Cosmic Apparels & Knitwear Pvt. Ltd.10
will not disrobe the employee from his employer-employee relationship;
2. Piece rate payment correlated to production is a well- recognised mode of payment to industrial workmen.
3. In fact, wherever possible that method of payment has to be encouraged so that there is utmost sincerity, efficiency and single minded devotion to increase production which would be beneficial both to the employer, the workmen and the nation at large.
4. The employer's right to reject the end product if it does not conform to the instructions of the employer speaks for the element of control and supervision.
5. The right of rejection coupled with the right to refuse work would certainly establish master servant relationship and both these tests are amply satisfied in the facts of this case.
The fact of the present case are squarely covered by the principles laid down in the above-said judgment of the Hon'ble Supreme Court. Thus there is no doubt that the workman-herein is the employee-workman of the management-herein and there certainly is an employer-employee relation. This issue is thus decided in favour of the workman and against the management.
LIR No.No.4794/16, Sh. Jawala Singh Vs. M/s Cosmic Apparels & Knitwear Pvt. Ltd.
1114. ADVERSE INFERENCE VIS-À-VIS NON PRODUCTION OF DOCUMENTS BY THE MANAGEMENT.
Now touching upon the as aspect of "adverse inference"
against the management for not producing the documents. As per Automobile Assoc. Upper India vs The P.O. Labour Court {130 (2006) DLT 160, (2006) IIILLJ 929 Del} :
"14. Engagement and appointment in service can be established directly by the existence and production of an appointment letter, a written agreement or by circumstantial evidence of incidental and ancillary records which would be in the nature of attendance register, salary registers, leave record, deposit of provident fund contribution and employees state insurance contributions etc. The same can be produced and proved by the workman or he can call upon and caused the same to be produced and proved by calling for witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to call such records in respect of his employment to be produced. In these circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman."
As held in R.M. Yallatti Vs. Assistant Executive Engineer, 2006 (108), FLR 213 SCC as under:
LIR No.No.4794/16, Sh. Jawala Singh Vs. M/s Cosmic Apparels & Knitwear Pvt. Ltd.12
"Analysing the above decisions of this Court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Dispute Act. However, applying general principles and on reading the afore-state judgments we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workmen stepping the witness box. This burden is discharged upon the workmen adducing cogent evidence, both oral and documentary. In case of termination of services of daily wages earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workmen (claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment of termination, if any, the wages register, the attendance register etc."
In view of the above-said judgment an adverse inference is hereby drawn against the management. Thus the workman has to be given a benefit of doubt that he had completed 240 days in service of the management.
This issue No.1 vis-à-vis 240 days is thus decided in favour of the workman and against the management.
15. ISSUE No.2 --WHETHER THE TERMINATION WAS LIR No.No.4794/16, Sh. Jawala Singh Vs. M/s Cosmic Apparels & Knitwear Pvt. Ltd.
13ILLEGAL?
Now coming to the aspect whether the workman-herein is unjustifiably terminated by the management. There is another aspect to it. It is the case of the management that the workman had joined work on 01.06.2011 and the contract came to an end by the efflux of time of four months. Even if that is taken to be correct (though the management has not proved it) the workman-herein ought to have been informed by the management as per the proviso to the Rule 13 of the INDUSTRIAL EMPLOYMENT (STANDING ORDERS) CENTRAL RULES, 1946 Notification No. L.R. 11 (37), date the 18th December, 1946:
"13. Termination of services.--(a)For terminating the services of permanent workman having less than one year of continuous service, notice of one month in writing with reasons or wages in lieu thereof shall be given by the employer:........
Provided further that when the services of a temporary workman, who has not completed three months' continuous service, are terminated before the completion of the term of employment given to him, he shall be informed of the reasons in writing. When the services of a badli workman are terminated before the return to work of the permanent incumbent or the expiry of his badli's term of employment, he shall be informed of the reasons for such termination in LIR No.No.4794/16, Sh. Jawala Singh Vs. M/s Cosmic Apparels & Knitwear Pvt. Ltd.14
writing."
There is nothing on record to show that any sort of internal enquiry was conducted by the management to terminate the services the workman-herein.
This issue is also decided in favour of the workman and against the management.
16. ISSUE No.3 - RELIEF There is nothing on record to show that the management- herein had fulfilled any of its duties as per the I.D. Act. As far as the reference before this tribunal is concerned it is answered in favour of the workman and the workman deserves to be reinstated with full back wages and all the benefits applicable. However, it is settled law that relief of reinstatement and back wages is not automatic but it depends upon number of factors. In "Ashok Kumar Sharma v. Oberoi Flight Services" AIR 2010 SUPREME COURT 502 where in Supreme Court while rely upon various judgements of Supreme Court held compensation in lieu of reinstatement or back wages would be appropriate.
The Hon'ble Supreme Court and the Hon'ble High Courts in a large number of decisions opined that payment of adequate amount of compensation in place of a direction to be reinstated in service in cases of this nature would subserve the ends of justice.
LIR No.No.4794/16, Sh. Jawala Singh Vs. M/s Cosmic Apparels & Knitwear Pvt. Ltd.
15(See Jaipur Development Authority v. Ramsahai [(2006) 11 SCC 684] : (2006 AIR SCW 5963), M.P. Admn. v. Tribhuban [(2007) 9 SCC 748] : (2007 AIR SCW 2357) and Uttaranchal Forest Development Corpn. v. M.C. Joshi [(2007) 9 SCC 353] : (2007 AIR SCW 7305).
In the instant case, the workman is found entitled to the relief of lumpsum compensation amount of Rs.3,00,000/- (Three lacs). The management is directed to pay the said amount to the workman within thirty days from the date of publication of the award failing which the workman will be entitled to recover the aforementioned amount of Rs.3,00,000/- ( Three lacs) from the management along with the interest @ 8% per annum. An Award is passed in favour of the workman against the management in the above terms of relief.
17. Requisite number of copies of the Award be sent to the competent authority for necessary compliance. File be consigned to Record Room.
Announced in the open court.
Dated:29-04-2019 ( VEENA RANI )
Presiding Officer Labour Court
Digitally
signed by
VEENA
South-West District,Dwarka Courts,ND
VEENA RANI
RANI Date: Judge Code : DL0271
2019.05.20
16:07:59
+0530
LIR No.No.4794/16, Sh. Jawala Singh Vs. M/s Cosmic Apparels & Knitwear Pvt. Ltd.
16IN THE COURT OF MS.VEENA RANI :PRESIDING OFFICER LABOUR COURT, SOUTHWEST DISTICT, DWARKA COURTS, NEW DELHI LIR No.No.4794/16, Sh. Jawala Singh Vs. M/s Cosmic Apparels & Knitwear Pvt. Ltd.
29-04-2019
Present : Workman along with ARW.
None for management.
An award passed separately in favour of the workman and against the management. Requisite number of copies of the Award be sent to the competent authority for necessary compliance. File be consigned to Record Room.
Announced in the open court.
Dated:29-04-2019 ( VEENA RANI ) Presiding Officer Labour Court SouthWest District,Dwarka Courts,ND Judge Code : DL0271 LIR No.No.4794/16, Sh. Jawala Singh Vs. M/s Cosmic Apparels & Knitwear Pvt. Ltd.