Delhi District Court
Industrial Dispute Between : vs Did No. 148/11 Pawan Bhagat Vs. M/S. ... on 26 August, 2014
IN THE COURT OF SH. SANJEEV KUMAR,
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER, LABOUR COURT
KARKARDOOMA CO URTS, DELHI.
DID No. 148/11 (OLD DID NO. 56/07)
INDUSTRIAL DISPUTE BETWEEN :
Sh. Pawan Bhagat, S/o. Sh. Thakur Bhagat,
Room No. 11, House No. 112A,
Jamroodpur, Greater Kailash Part - I,
New Delhi : 48.
........Workman
VERSUS
M/s. International Agencies,
S5 & S22, Green Park Extension,
New Delhi : 16
M/s. K.N. Rohtgi & Sons Company (Agencies),
S22, Green Park Extension,
New Delhi : 16.
M/s. K.N. Rohtgi Export,
S22, Green Park Extension,
New Delhi : 16.
AND
DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 1 out of 37
B7, X/115A, Safdarjung Enclave,
New Delhi : 29.
(All through Sh. Hament Rohtagi)
......Managements
Date of Institution : 17.09.2007
Date of arguments : 15.04.2014
Date of award : 26.08.2014
AWARD
1 Vide this common Award I shall decide the direct
industrial dispute (hereinafter called as DID) filed by workman u/s
10(4) (a) of I.D. Act about his illegal termination from service by
the the above named managements and petition u/s 33C(2) of ID.
Act claiming computation of various benefits.
2 The brief facts as stated in the statement of claim filed
in DID are that the workman/claimant had joined the management
no.1 M/s. International Agencies on 7.3.1993 as General Clerk and
his last monthly salary was Rs. 3300/. The managements M/s.
International Agencies, K N Rohtagi company (Agencies), Road
Tex A Aan Enterprises, New Pinch, Apex Tex K. N. Rohtagi
(HUF), Netfex, Kerno Media technology P. Ltd. K N Rohtagi
DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 2 out of 37
(HUF) which are others companies of Hemant Rohtagi.
Management use to take work from him for above said different
companies which are situated at two different places. The
management used to pay wages to the workman sometimes from
M/s. International Agencies, sometimes from KN Rohtagi and
sometimes from KN Rohtagi Export and such act of the
management was an unfair practice. The managements did not
prepare the complete service record of the workman and did not
give appointment letter and other benefits like annual leave, casual
leave, minimum wages, designation according to work, overtime,
leave book, attendance card etc. On 1.6.93 Hament Rohtagi asked
him to do duty for 12 hours instead of 8 hours and also to do duty
for Holi, Diwali, 2nd October, 15 August and 26 January and other
government holidays and when he asked to pay overtime in lieu of
these duties on holiday he said that he will settle the same later on.
Workman further stated he used to worked from 9 am to 11.30 at
B7, Ex./115 A and from 11.30 to 9.30 PM at S 5 and S22.
Management some time prepare vouchers in the name of other
employee instead of him and used to say that he is not the
employee of company but is domestic servant. He was not paid
DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 3 out of 37
any amount for overtime wages and management used to obtain his
signatures on plain papers and sometimes in register which
management used to misuse later on. The management used to sent
him to other place like Okhla, Malviya Nagar for the office work
for which management used to prepare vouchers in the name of
servant Ramdhani but he used to continue work despite all these
pressures. On 10.4.07 when he came for his duty Sh. Hament
Rohtagi told him not to come for duty and told that he has been
removed from the duty and when he said he has not committed any
mistake on which management official threatened him that he will
be implicated in false case. After 2007 he went many times to join
duty but he was not taken back on duty. He further stated that he is
unemployed from the date of his termination. The managements
violated the provisions of 25 F, G and H of Industrial Dispute Act.
He claim relief for reinstatement with back wages .
3 Notice of the claim was issued to the management no.
1, 2 and 3 (hereinafter called as M1, M2 and M3 respectively) and
the reply to the notice were given by all the management
separately.
4 In its reply the management no. 1 has taken the
DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 4 out of 37
preliminary objection that claimant is not workman within the
section 2 (s) of the ID Act as he was employed by Sh. Hament
Rohtagi as a domestic servant in the year 1997 at his residence at
B7, Extension, 115A Safdarjung Enclave, New Delhi 29 as
domestic helper and was paid salary of Rs. 2000/ per month and
has left his job in April 2007 all of a sudden without any intimation
to the respondent. At that time his salary was Rs. 3500/ per
month. In fact workman is liable to be pay an outstanding dues of Rs. 9900 which he had taken in advance from the respondent.
On merits, the contents of the statement of claim were denied. It is denied that the claimant was working with the respondent at the post of general clerk and was paid salary of Rs. 3300 at the time of leaving service. It is stated that he was employed in the year 1997 as a domestic help at the monthly salary of Rs. 2000/ and left his job in April, 2007. Further it is denied that respondent used to make payment to its employee from different accounts of the company allegedly run by the respondent and stated that the names of the company given by the claimant Rod tax, AR enterprises are fictitious and they never exist at any point of time. Respondent has nothing to do with company Netfex DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 5 out of 37 and Cranomedia Technologies. Further, it is stated that since claimant was domestic servant hence no question of maintaining record, like muster role, wage register etc., arise. Further it is denied that claimant was terminated on 10.4.07. It is stated that claimant had stopped himself in coming for duty from 15.4.07 without any intimation. It is prayed that the claim of the claimant be dismissed.
5 In the written statement filed by management no. 2 and 3 also almost retreated the same contents as stated by management no. 1. All the contents of statement of claim were denied as incorrect. It is denied by them that management no.2 &3 employed the claimant. It is stated he was domestic help of Hemant Rohtagi thus not a workman as per section 2(s) of ID. Act. 6 Rejoinder to the written statement filed by the management no. 1, 2 and 3 was filed by the workman and he reiterated the contents made in the statement of claim as true and correct and denied the contents of written statement. 7 Out of the pleadings of the parties, the following issues were framed vide order dated 14.02.2008 :
1. Whether the there existed any employee employer relationship DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 6 out of 37 between the claimant and the management.
2. Whether claimant is covered under the definition of workman U/s. 2 (s) of the ID Act.
3. Whether services of the workman were terminated illegally and/or unjustifiably by the management.
4. Relief.
8 In order to prove his case workman has examined himself as WW1 and also led his evidence vide Ex.WW1/A and also relied upon documents Ex.WW1/1 to Ex.WW1/37. ISSUE NO. 1 AND 2
Whether the there existed any employee employer relationship between the claimant and the management.
Whether claimant is covered under the definition of workman U/s. 2 (s) of the ID Act.
DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 7 out of 37 9 Both the issues are interconnected and hence I shall decide both the issue together. The onus to prove that there exist existing any relationship between the employer - employee and he is the workman under the definition of section 2 (s) of the ID Act. 10 In order to prove the the same the claimant has deposed in his evidence led by way of affidavit EXWW1/A almost the same contents as stated in the statement of claim discussed above. Besides this he relied upon documents Ex. WW1/1 to WW1/37 about which I shall discuss later on.
11 In his cross examination by AR of M2&M3 he admitted that he has not file any appointment letter, wage slip issued by M2 and M3. He do not have any document of M2 and M3 and He admitted that there were no relationship of employer - employee between him and the M2 and M3.
In cross examination done by AR of M1 he denied the suggestion that WW1/2 was issued by management as he was personal guard at home. He admitted the suggestion that the address 7/115A Safdarjung Enclave is residential address of Hament Rohtagi. He also admitted that no firm in the name of International Agencies was running at B7/115A Safdarjung DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 8 out of 37 Enclave. He also admitted that no appointment letter was issued by M/s. Inter connected Agencies to him. He denied that same was not issued as he was domestic help of Hament Rohtagi. He stated that he was doing general work with the management No. 1 such as office work, peon work like tea making, serving water, field work, receiving the documents on behalf of the management no.1 in office etc.. He stated that in the year 2007 about 910 workers were working in the office of M1 but he cannot produce those persons in his evidence as they are the employee of the management. He denied the suggestion that Ex. WW1/3 to 1/6, 1/10 and 1/11 were stolen by him from the office of the management no. 1 with a view to misuse the same. He stated that document Ex.WW1/10 was thrown by M1 and he denied that he signed the same after taking from dustbin. He stated that receipt Ex. WW1/13 to 1/16 of Kirana pertaining to to the goods which are received in the office. The goods against the aforesaid receipts are purchase through the payment of cheque. He denied that the goods mentioned in the aforesaid receipts are belonged to house of Hament Rohtagi. He denied that he was deputed at the house of Hament Rohtagi to weeded out the old files. The photographs Ex. DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 9 out of 37 WW1/21 to 1/23 were taken by Tek Bahadur Thapa regarding showing his nature of work. He admitted that Ex.WW1/30 is the I. Card prepared by him as he was doing the field work. He denied the suggestion that Ex. WW1/30 sample tag has been stolen by him and made a forge signatures. He admitted that the management is covered under ESI and PF department during his employment. He denied the suggestion that neither M1 employed nor terminated his services as he was domestic helper with Hament Rohtagi. He admitted that he has not made any complaint to PF or ESI department during his employment. He denied the suggestion that he did not make complaint to the above departments as he was working as the domestic helper with Hament Rogtagi. He used to go with lunch of Hament from his residence to office. He admitted that he has not made any complaint in labour departments for legal facilities. He denied the suggestion that he was neither employed by M1 nor terminated by M1. He admitted that document Ex. WW1/38 (colly) is prepared by him and same is in his handwriting and does not bears the signatures of M1 to M3.
12 On the other hand Management no.1 examined Hament Rohtagi as MW1. He has deposed in his affidavit Ex. DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 10 out of 37 MW1/A that he is the erstwhile partner of M1. He further deposed that M1 had no business since 1.4.05 due to which the export licence import export code was surrendered on 2.3.07. He further deposed that he has employed the claimant as domestic servant in his personal capacity first in 1993 to discharge duty at his residence. The claimant abandoned the work in June 1997. He reemployed the workman as domestic servant in December, 1997 and his last drawn salary was Rs. 3500 p.m.. The main duty of the claimant was to clean the staircase, upper terrace, feed birds make purchases of provisions etc and bring and serve the lunch for him from his residence make and serve tea for him after lunch and thereafter go back to his residence and remain at the gate to function as duty guard at his residence. He further deposed that claimant deserted the domestic servant work and abandoned on 10.4.07. Hence, no question of termination on 10.4.07 arise. He further deposed that at no point of time claimant was appointed as general clerk in the office and he was never on pay roll of M1. He further stated that no overtime was done at his residence by the claimant. He further stated that no question of maintaining the record such as wages register, muster roll, payment of overtime DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 11 out of 37 register regarding the claimant as he was not a workman but was appointed as a domestic servant at his residence in personal capacity. He further deposed that claimant even did not know the names and designations of the workers of M1 in the year 2007. whatever information claimant had gathered was on the basis of hearsay. The fact is that out of ten names mentioned by the claimant, 4 persons were not in the employment of M1 in the year 2007 namely Ganesh who expired on 11.8.02, Ram Saran expired on 11.5.00, Yad Ram was never an employee of M1, RK Nair resigned from the service about 15 years back. The claimant lacked information about the designation of various employees as Sojan Varghese was documentation manager and not office boy. Similarly Ganesh till the time of his death was working as officer manager and not office boy. He failed to name Diwan who was Peon in 2007. He further deposed that document Ex. WW1/3 to 1/6 stolen from the office and efforts were made to create a record where none exist. He further deposed that original of WW1/7 not filed as he super imposed his name on top of the name of the firm. The claimant had used different address to sent money order. He was not authorized to used office address in his personnel DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 12 out of 37 communication. He deposed that Ex. WW1/10 and Ex. WW1/11 were fraudulently fabricated. He further deposed that none of the workman of M1 needed the I. Card Ex. WW1/30 as all workers have ESI card. He deposed that claimant admitted that document Ex. WW1/30 was a sample tag which was stolen by him and he manipulated it as identity card by forging his signatures on card. He further stated that claimant admitted that the WW1/31 was issued by M2 and the claimant has admitted that there is no relation between the claimant and the M2. He further deposed that management was covered under ESI and PF and their record was maintained by management regarding PF eligibility, ESI register of employee contribution, PF inspection books are being submitted. 13 In his cross examination, he stated that he has filed WS which is running into 6 pages however admitted that said WS does not bear the signatures of any authorize person at any of 6 pages Ex.MW1/X. He admitted that he is nobody in the management and vol. stated that management does not exists today. He stated that management International agency was started in the year 196970 and he was one of the partner in the year 2007. The M2 was the partner ship firm. He admitted that address of M1, DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 13 out of 37 M2 and M3 was S22, Green Park Extension, New Delhi : 16. He do not remember that whether he was the partner in management no.2 or not. Vol. it was a family business. He admitted that he was the partner in management no.3 M/s K.N. Rohtagi Export. He admitted that the contents regarding no business of management as mentioned in para 2 in Ex.MW1/A at point C was never pleaded by him in reply Ex.MW1/X. He admitted the contents as mentioned in para 3 in Ex.MW1/A at point D was not mentioned by the management in Ex.MW1/X. He admitted that no police verification was done by me of Pawan Bhagat, the claimant. He further admitted that he has not filed the attendance register, for the period January, 2002 to March, 2004, and Nov. 2006 to May, 2007. he further admitted that he has not filed the register of payment wages for the period of Oct. 2006 to May, 2007. He further admitted that he has not filed PF eligibility register and bonus register for the period 2006 to 2007. He furhter admitted that the vouchers as Ex.WW1/3, 4 5 & 6 are having the same printing as used by the management. The hand writing of the vouchers are not same in Ex.WW1/3 & 4. He further admitted that Ex.WW1/8 & 9 bears the correct address of the management at point A. He denied DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 14 out of 37 that the claimant was working with the management and he used to receive the couriers on behalf of the management. He admitted that the food & other office products (Ration) was purchased by the management. He admitted that Ex.WW1/17 bears the correct address of the management at point A. M/s K.N. Rohtagi Export used to make all payments on the vouchers. It is correct that the vouchers as Ex.WW1/25, 26, 27 & 28 are having the same printing as used by the management no.3. The hand writing of the vouchers are not same in Ex.WW1/ 25, 26, 27 & 28. There was no system of issuing of gate pass in management no.1 & 3. He denied that the management no.1, 2 & 3 were following the procedure of issuing I card to their employees. He admitted that Ex.MW1/W3 is the register of bonus paid to employees for the accounting year ending on the year 199495 and M1 was used to run by his Proprietor RN Dave.
14 It is argued by Ld. AR for the workman from the testimony from the workman it is proved that claimant is employee of management no.1. He further argued that testimony of workman is duly corroborated by document proved by the workman i.e. bonus register of the management mark A/Ex. MW1/W3 in the DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 15 out of 37 year 95 in which name of the workman has been mentioned at Sl No. 28. He argued that if workman had been the domestic servant of the Hament Rohtagi then management would not have given bonus. He argued that MW1 has admitted in the cross examination that MW1/W3 is the register of the bonus to the employee for the financial year 9495. Hence, no further document is required to prove the employer employee relationship between the M1 and the workman. Further, this document narrate the contention of the management that he was domestic servant of Hament Rohtagi. He further argued that other document produced by the workman also corroborated the testimony of workman like the payment vouchers Ex.WW1/3, 4,5, and 6 of different dates which proved that workman was going for the work of the managements and was being paid expenses. It is further argued that document Ex. WW1/11 prove that workman has signed the receiving of water purifier purchased from the Ureka Forbes Ltd. and Ex. WW1/12 proved that workman has received a delivery of the goods sent to M1 and document Ex. WW1/13 and 1/16 that workman was purchasing provisional goods. He also admit that M1 and M2 are owned by similar management therefore, workman DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 16 out of 37 was also worked for other managements. It is proved from the document Ex. WW1/25 and 28 which are conveyance vouchers. 15 On the other hand, Ld. ARM has argued that onus is upon the workman to prove relationship of employer and employee but document proved by the workman do not prove the relationship because this document can be procured by the workman as he used to visit to the office of the management no. 1 being domestic servant of Hament Rohtagi partner of M1. He used to come to the office of M1with lunch of Hament Rohtagi therefore he can procured those documents. He further argued that these documents are not the cogent evidence and the cogent evidence for the employment are appointment letter, wages register, PF and ESI record muster roll etc.. Hence, the workman has failed to prove the above said documents therefore, he has failed to proved that workman is the employee of M1. He further argued that from the document produced by the management i.e. PF eligibility register Ex. MW1/1, 1/3 register of employee for ESI contribution Ex. MW1/4 to 1/24, register of bonus Ex. MW1/25 to 1/57, the register of regularisation Ex.MW1/58 to Ex. MW1/95, PF inspection Ex. MW1/96 to Ex. MW1/108, prove that management was providing DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 17 out of 37 PF and ESI facilities to its employee and since name of the workman is not included therefore, he is not the employee of the M1.
16 I have considered the arguments and gone through the record I am fully agree with the management that onus is upon the workman to prove relationship between management and the workman. In this regard I relied upon the judgements as under :
In N.C. John Vs. Secretary Thodupuzha Taluk Shop and Commercial Establishment Workers Union and others 1973 Lab, IC 398, the Kerala High Court held that:
" the burden of proof being on the workmen to establish the employeremployee relationship and adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employeremployee relationship."
17 The following principles laid down by the Supreme Court in (2002) 3 SCC 25 Range Forest Officer Vs. S.T. Hadimani : "3............ in our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but his claim was DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 18 out of 37 denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filling of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that a workman had in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On the ground alone, the award is liable to be set aside."
Therefore, the petitioner's contention that his statement in the affidavit to the effect that he had worked continuously for 240 days was by itself sufficient proof, is not correct."
In R.M. Yellatti Vs. Assistant Executive Engineer (2006)1 SCC 106 . the Supreme Court observed as follows: "...........However, applying general principles and on reading the (aforesaid) 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 workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of dailywaged earners, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (the claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case."
DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 19 out of 37 In Automobile Association of Upper India Vs PO.Labour Court 11 & Another 2006LLR 551 also it is held that :
"10. It is well settled that the primary burden of proof to establish a plea rests on a person so claiming. In this behalf reference can be appropriately made to the judicial pronouncement in State of Gujarat and Ors. v. Pratamsingh Narsinh Parmar 2004 LLR 351 (para 49) Nilgiri Coop. Marketing Society Ltd. v. State of Tamil Nadu; 2001 LLR 148 Dhyan Singh v. Raman Lal; 1996 Lab. I.C. 202 Swapan v. First Labour Court, West Bengal and 1973 Lab. I.C. 398 N.C. John v. TTS & CE Workers Union; Thus burden lies on a person claiming the establishment to be an industry to place positive facts before the court in this behalf. For this reason, the primary burden to establish the relationship of employment also lies on the workman who is claiming the same.
11. In this behalf, it was only if the respondent had discharged the onus and burden of proof cast on him and had placed some material on record to indicate that he had been employed by the petitioner that the petitioner would have been required to displace the case set up by the respondent by leading positive evidence.
12. In Manager, Reserve Bank of India v. S. Mani and Ors., it was held by the apex court that it is only if the initial burden of proof, which was on the workman, was discharged to some extent, that a finding can be returned in respect of the defense of the management. Furthermore, a plea having been set up by the workman, the initial burden of proof was on the workman to show that he had been employed by the petitioner in the claim capacity on the stated terms."
18 In order to prove the case workman has examined himself as WW1. In his evidence led by affidavit Ex. WW1/A he categorically deposed that he was working with M1 since 7.3.93 on the post of general clerk and his salary was Rs. 3300 p.m.. He has also deposed that management has also other concerned i.e. M2 DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 20 out of 37 and M3 and they used to take work for that firm also and sometime used to pay from the M1 and sometimes from M2 and M3. In his cross examination, he denied the suggestion that hews not the employee of M1 but was the domestic servant of Hament Rohtagi, partner of M1. He has deposed that he was doing the general work with the management no. 1 such as office work, peon work, like tea making, serving water, different field work, receiving documents on behalf of the M1. Nothing much has come out in his cross examination to strength his testimony. Undoubtedly, as contended by Ld. AR for the management that the sole testimony of workman is not sufficient to prove the relationship of employer employee but the workman required to corroborate his testimony by documentary evidence also.
19 What could be documentary evidence to prove the employment has been described in case of Automobile Association of Upper India vs P.O. Labour Court II and Anothers 2006 LLR 551 has held that the documents like salary slip, ESI & PF, leave record and ,muster role, attendance register and any document of similar kind is relevant document to prove the shift of employer employee. The relevant portion is reproduced as under :
"14. Engagement and appointment in service can be DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 21 out of 37 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 favor of the workman. "
20 Now coming back to the case, the workman has himself stated in the affidavit and management was doing unfair labour practice and management has not prepared complete record. He was not given appointment letter. Hence no question of workman proving appointment letter, muster role or wage slip etc., arise. Hence, from the document produced by workman it is proved that he was wrongly in the office of management no. 1 but it is not proved that he was employee of management no. 1 because being domestic servant also he could have access to those documents proved by him in his testimony. However, during cross examination, of MW1 workman has produced document Ex.WW1/M3 which is photocopy of the bonus register for the year DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 22 out of 37 199495 which bears the name of the workman besides other employees who have been paid bonus only for that year by M1. MW1 in the cross examination has admitted that said documents is the copy of register of bonus paid to the employee for the year 199495. The said register proved that in the year 9495 the workman was shown as employee of M1 and was drawing salary of Rs. 2110/ and was paid bonus of Rs. 850/. The onus shifted upon management no.1 to prove why M1 has paid bonus to claimant as its employee alongwith other employees if he was the domestic servant of Hemant Rohtagi. Though MW1 has not given any explanation why bonus was paid to the workman in the year 199495. Though, documents produced by the MW1 i.e. PF eligibility register of employees maintained by management regarding ESI regulations and payment of bonus register which is from year 1998 till 2005 and register of employees of year 1990 to 2003 and the wages register do not bear the name of the claimant as employee of management no.1 but this does not negate the document i.e. bonus register for the year 199495. It is clearly established that in the year 199495 workman was the employee of the management no. 1 and was paid bonus by the M1 as its DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 23 out of 37 employee. The MW1 in the cross examination has admitted that he has not filed the bonus register for the year 199497 but has failed to explain why the bonus register for the said period has not been filed. Hence, adverse inference can be drawn against the management that the said record had been deliberately not produced as same was against the management. Moreover in the written statement management no1 has stated that workman joined with Hemant Rohtagi as domestic servant in year 1997. But in his affidavit EXMW1/A he has deposed that claimant initially joined him as domestic servant first in year 1993 but left in June 1997 and than he reemployed in December 1997. Hence same is an improvement probably to covered the bonus record of year 19941995. Hence, I do not found testimony of MW1 reliable that workman joined with Hament Rohtagi in 1993 as domestic servant and left in June, 1997 and then rejoined in December, 1997. 21 Further Ex. WW1/3 to 1/6 is the conveyance voucher which proved management no.1 has paid conveyance allowance to claimant. The management has given suggestion that document Ex. WW1/3 to 1/6 are stolen by workman from the office of M1 with a view to misuse the same. But management has failed to explain if DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 24 out of 37 same were stolen by workman why no complaint was filed by management against claimant. The management no. 1 has failed to explain why conveyance allowance paid to claimant if he was the domestic servant of Hemant Rohtagi. Documents Ex. WW1/11 is receipts of Ureka Forbes water purifier in the name of management no.1, this bill bears signature of workman which proved that he has received this article. Ex. WW1/13 to 1/16 is the Kiryana article receipts issued in the name of M1. This receipts shows workman has received these articles. The Ex. WW1/21 to 1/23 are the photographs showing that workman is working in management premises. No suggestion has been given that premises shown in the photograph is not the management no.1 office. Hence, if I consider that in year 199495 claimant has been paid bonus as employee of management no.1 coupled with other documents proved by the workman in my view preponderance of probability is in favour of the workman that he was the employee of M1 and not a domestic servant of Hament Rohtagi partner/owner of M1 though Hemant Rohtagi was also taking work from him at his residence. Therefore, issue no.1 and 2 are decided in favour of the workman and against the management no.1 and it is held that claimant is the employee of DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 25 out of 37 management no.1.
ISSUE NO. 3
Whether services of the workman were terminated illegally and/or unjustifiably by the management.
22 Workman in his testimony Ex. WW1/a has deposed that on 10.4.07 when he came on duty the employer Hament Rohtagi has told him that he need not to come on duty and terminated him from service and thereafter, also he again went to the management for work but he was not given work. No suggestion has been given to the workman by the management that workman has himself left the job. MW1 in his testimony has deposed that claimant himself has left the job and no question of termination was arise on 10.4.07. but he has failed to explain why the workman will left the job suddenly on 10.4.07 after working with the management for a long period of almost 13 years. Admittedly, no efforts have been made by the management to recall the workman on duty MW1 has clearly admitted that no notice was given to the workman as he was a domestic servant not a workman but as stated above the workman was not a domestic DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 26 out of 37 servant he was the employee of M1 but unauthorizedly shown him as domestic servant. Hence, management was required to take some action to recall the workman on duty who was working with the management since so long therefore, in these circumstances, I found testimony of the workman more reliable that he was refused to give duty on 1.4.07 by Hament Rohtagi employer of M1. Thus he has been terminated illegally by the M1. Accordingly issue no. 3 is decided against the management no.1.
ISSUE NO. 4
Relief 23 The workman has worked almost 14 years with the management. His last drawn salary was Rs. 3300 p.m.. As per testimony of MW1 M1 has now been closed on 1.4.05 not doing business and export licence surrendered on 2.3.07 though no document has been produced in this regard by the management. But considering the fact that no suggestion has been given to the MW1 by the workman that M1 is still running hence, in these circumstances, it would not be appropriate to reinstate the workman and it is appropriate to grant back wages. 24 Hence, in such circumstances, in my view awarding DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 27 out of 37 lump sum compensation would be better alternative instead of reinstatement and back wages. My this view is also strengthen by judgment of Ashok Kumar Sharma vs. 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 relevant para of judgment is reproduced as below: "8. In the case of Sita Ram v. Moti Lal Nehru Farmers Training Institute2(2008 AIR SCW 2256) this Court considered the matter thus :
"2. JT 2008 (3) SC622.
"21. The question, which, however, falls for our consideration is as to whether the Labour Court was justified in awarding reinstatement of the appellants in service.
22. Keeping in view the period during which the services were rendered by the respondent (sic appellants); the fact that the respondent had stopped its operation of bee farming, and the sen/ices of the appellants were terminated in December 1996, we are of the opinion that it is not a fit case where the appellants could have been directed to be reinstated in service.
23. Indisputably, the Industrial Court, exercises a discretionary jurisdiction, but such discretion is required to be exercised judiciously. Relevant factors therefore were required to be taken into consideration; the nature of appointment, the period of appointment, the availability of the job, etc. should weigh with the court for determination of such an issue.
DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 28 out of 37
24. This Court 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. (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).
25. Having regard to the facts and circumstances of this case, we are of the opinion that payment of a sum of Rs. 1,00,000 to each of the appellants, would meet the ends of justice. This appeal is allowed to the aforementioned extent. In the facts and circumstances of this case, there shall be no order as to costs."
9. The aforereferred two decisions of this Court and few more decisions were considered by us in the case of Jagbir Singh v. Haryana State Agriculture Marketing Board3(2009 AIR SCW 4824) albeit in the context of retrenchment of a daily wager in violation of section 25F of Industrial Disputes Act who had worked for more than 240 days in a year and we observed thus :
3. JT 2009 (9) SCC 396."7.
It is true that earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention to the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice."
DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 29 out of 37 It is not necessary to multiply the decisions of this Court wherein award of compensation in lieu of reinstatement and back wages has been held to be adequate and in the interest of justice.
In light of the aforesaid legal position, the view of the High Court that monetary compensation in lieu of reinstatement of the workman would be proper cannot be said to be unjustified."
In case titled as Mohd. Shakir And Sunder Lal Jain Hospital 2010ILLJ245 (Del) High Court of Delhi it was held that:
" illegality of dismissal/termination from service of a workman did not in itself ipso facto result in his reinstatement. The long history of litigation and acrimony between the parties leading to trust deficit in this case was considered by the Labour Court and it had rightly concluded that reinstatement might not be appropriate remedy will justified award of compensation in lieu of the reinstatement of the workman."
25 Reverting back to the case MW1 has deposed in his testimony that management no. 1 has been closed and export licence has been surrendered. No contrary evidence has been led to prove that M1 is still functioning. Hence, in these circumstances, it would not be appropriate to reinstate the workman. The workman has worked with the management since 1993 till 2007. As per workman, his last drawn salary was Rs. 3300 per month. Hence, DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 30 out of 37 considering all the facts discussed and the judgment discussed above, I grant a lump sum compensation of Rupees 2,00,000/ (Two Lacs only) in lieu of reinstatement in service, back wages and all other consequential benefits. The management is directed to pay the awarded compensation within 30 days from the date of publication of award, if the management fail, the management would be liable to pay interest @ 8% per annum on the awarded amount. The claim is answered accordingly.
LCA 46/11 26 The workman Pawan Bhagat has stated same facts in his application filed u/s. 33C(2) of Industrial Dispute Act, 1947 as stated by him in the statement of claim filed in DID No. 148/11 which are mentioned in para no.2 above, therefore, same are not repeated here. The claimant has demand the computation of following benefits :
1 Over time of 15 years : 2,80,000 2 Bonus of 15 years : 90,000 3 Sunday duty of 15 years 80,000 4 Duty done on gazetted holiday during 15years 20,000 5 Earned wages 31,500 Total : 5,01,500 DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 31 out of 37 The workman has prayed for grant of the above dues with 12% interest per annum.
27 In reply all the three management have also almost stated the same contents as stated in their written statement filed in DID which are mentioned in para no. 4. above. It is prayed that the claimant is not entitled for the relief as claim by him. 28 Similarly, in the rejoinder the workman has stated the same facts as stated by him in the claim petition. The contents of the written statement were denied by the claimant. 29 Thereafter, following issues have been framed vide order dated 14.02.2008 :
1. Whether the present petition under section 33 C(2)of ID Act is maintainable?
2. If issue no. 1 is decided in favour of the workman? To what amount the petitioner is entitled for?
3. Relief.
30 All the parties examined same witness in both DID no. 148/11 and present case.
DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 32 out of 37 31 The common argument was made by parties in both the cases. I have heard the argument and gone through the record. My issue wise findings are as under :
ISSUE NO. 1.
Whether the present petition under section 33 C(2)of ID Act is maintainable?
32 The main argument of the Ld. AR for managements was that since claimant was a domestic servant of Hemant Rohtagi, one of partner of management no.1 therefore he is not covered in the definition of workman as defined in section 2(S) of I.D. Act therefore petition filed by the applicant u/s 33C(2) is not maintainable as same can be filed by workman only. On the other hand Ld. AR for workman has argued that applicant was not a domestic servant of Hemant Rohtagi but was an employee of management no.1 hence he is a workman. Hence, application filed by him is maintainable.
33 I have heard the arguments and gone through the record. Section 33C(2) of the I.D. Act provides that:
"Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 33 out of 37 question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government [within a period not exceeding three months] (2) [ provided that where the presiding officer of a Labour Court considers it necessary or expedient to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit."
34 Thus it is evident from the section that only workman can file an application under this section. Since common evidence has been led by the parties in both the DID and present case therefore, in view of the findings on issue no. 1 and 2 in DID no. 148/11 I held that applicant is a workman is covered in the definition of workman as defined u/s 2(S) of Industrial Dispute Act and is employee by the management no.1, therefore, I held that present application is maintainable qua management no.1 only. Issue no.1 is decided accordingly.
ISSUE NO. 2
If issue no. 1 is decided in favour of the workman? To what amount the petitioner is entitled for?
35 The workman has claimed that he was not given overtime wages for 15 years and claimed Rs. 50,000 in this regard. DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 34 out of 37 In his evidence led by way of affidavit EXWW1/A he has deposed that management was taking 12 hour duty instead of 8 hour duty but he was not paid any wages for the said period. He has only relied upon one document Ex. WW1/38 which is copy on which overtime book is written. as per the contention of Ld. AR for workman he used to mention details of overtime done by him in the said copy. In his cross examination he admitted that the said document has been prepared by him and same is in his handwriting and does not bear the signatures of M1 to M3. Management has given suggestion that same is a fabricated document. Since WW1/38 is self prepared document of workman and does not bear signature of management official therefore I do not find the said record of overtime reliable. The workman has failed to explain why he has not made any complaint for 15 years if he has not paid overtime wages. No coworker has been examined by the workman to corroborate his testimony that he was doing overtime, hence in my view he has failed to prove that he has done any over time therefore, I held that he is not entitled for computation of any overtime wages.
36 The workman has demanded computation of leave of DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 35 out of 37 Sunday and Government holidays and claimed amount of Rs 80,000 and 20,000/ respectively. In his testimony the workman has deposed that he worked on Sundays and gazetted holidays but he has not produced any document to prove that he was working on those days neither he has examined any co worker to prove the said claim. The workman has failed to explain why for so many years he did not file any complaint in writing before the management or to any government authority that he was made to work on Sundays and gazetted holidays therefore, I do not find testimony of applicant reliable in this regard. Hence, I held he is not entitle for any amount on account of Sundays and Gazzatted holidays.
37 The workman has claimed that he was not given the bonus for 15 years and has claimed amount of Rs. 90,000/ . As per Supreme Court judgement HP State Electricity Board and others vs. AIR 2008 SC 1602 labour court Labour court can decide the matter specify in item 6 of second schedule of labour court. Item 6 of second Schedule says that Labour court deals with all matters except those in 3rd schedule bonus appear in item 5 in3rd schedule therefore, could not be decided by Labour court. Hence, I held that DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 36 out of 37 this court has no power to decided whether the workman is entitled for bonus therefore, he is not entitled for computation of bonus amount. However, he is at liberty to approach any other forum as per law for claiming the bonus amount.
38 In view of the above, I held that workman is not entitled for any relief as claimed by him in the application u/s 33C(2) of Industrial Dispute Act. Hence, same is dismissed. 39 Copy of award be sent to the Secretary Labour, Govt. of NCT, Delhi for publication of the award. File be consigned to Record Room.
Announced in the Open Court On this 26th August, 2014 (SANJEEV KUMAR) Presiding Officer : Labour Court Karkardooma Courts, Delhi.
DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 37 out of 37 DID No. 148/11 Pawan Bhagat vs. M/s. International Agencies Page no. 38 out of 37