Delhi District Court
Lir No. 372/18 vs M/S S.D. Nanda & Sons on 28 July, 2018
IN THE COURT OF SHRI UMED SINGH GREWAL,
PILOT COURT / POLCXVII, ROOM NO. 514:
DWARKA COURTS: NEW DELHI
LIR No. 372/18
Sh. Mohan Lal
S/o Late Sh. Ram Pal, age 65 years
R/o A92, Shastri Nagar, Delhi110052.
(Mobile No. 9250742668)
C/o Rashtriya General Kamgar Mazdoor Union (Regd.),
Seat No. 11A, Near Treasury Gate,
Tis Hazari Court, Delhi110054
..............Workman
Versus
1.M/s S.D. Nanda & Sons
2. M/s KTech Automation 50 Shardhanand Marg, G.B. Road, Delhi110006 (Smt. Neelu Sehgal, Smt. Meenu Malhotra & Smt. Seema Mehra, Proprietors and Daughters of Late Sh. B.M. Nanda) ..........Management DATE OF INSTITUTION : 22.02.2018 DATE ON WHICH AWARD RESERVED : 23.07.2018 DATE ON WHICH AWARD PASSED : 28.07.2018 LIR No. 372/18. 1/16 A W A R D :
1. This reference was sent by the Government of NCT of Delhi vide Order No. F.24 (53)/ 18/Ref./CD/Lab./268 Dated 19.02.2018, with the following terms : "Whether services of Sh. Mohan Lal S/o Late Sh. Ram Pal Age 65 years have been terminated illegally and / or unjustifiably by the management; if so, to what relief is he entitled and what directions are necessary in this respect?"
2. Claimant's case is that he had worked with management as Driver for five years at the last drawn salary of Rs. 12,500/ per month. He used to drive vehicle no. DL9CY7081. The proprietor of management no. 1 Mr. B.M. Nanda expired and thereafter the business was run by her daughters. The management did not provide him legal facilities like appointment letter, ESI, PF, leave encashment, overtime wages, bonus and gratuity. When he demanded those facilities, it started withholding earned wages from December 2016 onwards and when he demanded earned wages on 20.02.2017, his service was terminated on the same day withholding earned wages from 01.12.2016 to 20.02.2017 without notice and without tendering notice pay and retrenchment compensation. Demand notice went unresponded. The management did not appear before Labour Inspector on his general complaint. At LIR No. 372/18. 2/16 last, he filed case before Conciliation Officer but the management did not show any interest in those proceedings and hence, the matter remained unsettled. He is jobless since termination.
3. Written statement of Ms. Seema Mehra daughter of Mr. Brij Mohan Nanda, proprietor of management no. 1, is that her father left for heavenly abode on 07.12.2016 leaving behind her and two other daughters namely Ms. Neelam Sahgal @ Neelu Sahgal and Mrs. Meenu Malhotra. Claimant's case is that he used to work with both managements is palpably false as one person cannot work with two organization at the same time. Mr. B.M. Nanda used to run business by the name of management as a proprietorship concern without any help or aid from any other person as he himself used to carry on the business. After his expiry, the business came to an end abruptly. The claimant had never worked with management no. 1 as she, being daughter of Mr. B.M. Nanda, had never seen claimant driving her father's car at any point of time. Claimant is of 65 years and no prudent businessman would engage such an elderly person as a driver.
4. Relationship of claimant with management no. 1 has been denied by Ms. Meenu Malhotra, daughter of Mr. B.M. Nanda by mentioning in the written statement that he used to work as freelance driver and was used by her father only when there was any need.
LIR No. 372/18. 3/165. Ms. Neelu Sahgal filed written statement in the capacity of daughter of Mr. B.M. Nanda as well as the proprietor of management no. 2. It is mentioned that her father expired on 07.12.2016 leaving behind three daughters and since then, the management no. 1 is not carrying out any business activity. He had not worked with any of the management at any point of time. She is the proprietor of management no. 2 whose affairs are being looked after by her son Mr. Kunal Sahgal. The management no. 2 had employed only two persons and they are paid wages through vouchers. She, being the legal heir of proprietor of M/S S.D. Nanda, is not personally liable. Before filing the case, the claimant did not get cause of action spoused through the union.
6. Following issues were framed on 04.05.2018:
1. Whether there was any relationship of employee and employer between claimant and management Nos. 1 & 2? OPW
2. Whether management no. 1 has closed its business w.e.f. 07.12.2016? OPM1
3. Whether termination of service of claimant by management Nos. 1 & 2 on 20.02.2017 is illegal and/ or unjustifiable?OPW
4. Relief.
7. The claimant examined two witnesses.
WW1 claimant tendered his affidavit in evidence as WW 1/A and he relied upon following documents: LIR No. 372/18. 4/16
1. Ex. WW1/1 (colly) is original receipts of car parking (objected to by AR of Ms. Meenu Malhotra on the ground of mode of proof).
2. Ex. WW1/2 is receipt of service station (objected to by AR of Ms. Meenu Malhotra on the ground of mode of proof).
3. Ex. WW1/3 (colly) is original car inspection report (objected to by AR of Ms. Meenu Malhotra on the ground of mode of proof).
4. Ex. WW1/4 is his over time detail.
5. Mark W1 is photocopy of photographs of the car.
WW2 Mr. Durga Prasad deposed that he had worked with the management as Peon from 1974 to February 2017. The claimant had also worked with the management from 2013 to 20.02.2017 as he used to drive its vehicle no. DL9CY7081 honestly and diligently to the satisfaction of the management. After expiry of Mr. B.M. Nanda, her three daughters terminated service of seven employees namely Mr. Dharam Pal Mehta, Virender Singh, Gaya Prasad, Mohan Lal, Ramesh Kumar and Abdul Malik without notice and domestic inquiry etc. He relied upon following documents:
1. Ex. WW2/1 is copy of my Aadhar Card.
2. Ex. WW2/2 (41 pages) are copies of attendance register.
He admitted in crossexamination that no business activity is being done by management no. 1 after death of proprietor Mr. B.M. LIR No. 372/18. 5/16 Nanda.
8. Management no. 1 examined two witnesses.
M1W1 Mr. Ram Naresh Sharma is record keeper in the office of Trade and Taxes Department, Vyapar Bhawan and he placed on record following documents:
1. Ex. M1W1/A is death certificate of Mr. B.M. Nanda and letter dated 27.07.2018 received in his office from Ms. Neelu Sahgal about the death of Mr. Brij Mohan Nanda.
2. Ex. M1W1/B is the dealer profile of management no. 1 for 20162017 as per which the VAT return was filed only up to the second quarter i.e. 01.07.2016 to 30.09.2016. No VAT return was filed thereafter.
3. Ex. M1W1/C is DP1 detail of management no. 1.
M1W2 Mr. Kunal Sahgal son of Ms. Neelu Sahgal daughter of Mr. B.M. Nanda deposed that her grand maternal father Mr. B.M. Nanda expired on 07.12.2016 leaving three daughters as LR i.e. her mother Ms. Neelu Sahgal, Ms. Meenu Malhotra and Ms. Seema Mehra. The management no. 1 was a proprietor concern which stopped its business after death of Mr. B.M. Nanda. After his death, none of his LR did business. Mr. Nanda used to look after the affairs himself without engaging any person. The claimant had never worked with management no. 1 as a driver. None of the LR of Mr. B.M. Nanda is personally liable to make any LIR No. 372/18. 6/16 payment to the claimant. As he was never employed by management no. 1, there was no question of issuing any appointment letter or to provide facilities like ESI, PF, leave encashment, bonus and gratuity etc.
9. The management no. 2 examined three witnesses.
M2W1 Mr. Jagdish Narayan produced following documents of management no. 2 from the office of Foreign Trade Development Officer:
1. Ex. M2W1/A is edit report of IEC no. 0507061179.
2. Ex. M2W1/B is certificate dated 14.11.2007 of Importer Exporter code (IEC).
M2W2 Mr. Ram Naresh Sharma is record keeper in the office of Trade and Taxes Department and he he relied upon following documents:
1. Ex. M2W2/A is dealer profile of management no. 1 for the year 20162017.
2. Ex. M2W2/B is DP1 detail of management no. 2.
3. Ex. M2W2/C is D VAT 06 form of management no. 2.
4. Ex. M2W2/D is registration certificate of management no. 2.
M2M3 Mr. Kunal Sahgal son of Ms. Neelu Sahgal i.e. proprietor of management no. 2 deposed that management no. 2 is LIR No. 372/18. 7/16 a separate and distinct legal entity from management no. 1. It had no privity of trade connection or any other relation with management no. 1. It is running its business from mezzanine floor of the same premises from where the management no. 1 used to function at the ground floor when Mr. B.M. Nanda was alive. He further deposed that he is looking after day to day affairs of the management no. 2 which never employed claimant at any point of time. Rest of his deposition is repetition of written statement of management no. 2. He relied upon documents Ex. M2W1 and Ex. M2W2 .
Issue no. 1:
10. Ld. ARW argued that claimant had started working with managements in 2012 as driver and he used to drive vehicle no. DL 9CY7081. The management no. 1 was headed by Mr. B.M. Nanda who used to look after the affairs of management no. 2 also. In fact, the business of management no. 2 was done by Mr. B.M. Nanda in the name of his daughter Ms. Neelu Sahgal. Both managements were doing business from the same premises.
Ld. AR for both managements argued that both managements are separate and distinct entities. Management no. 1 was established in 1957 and is a proprietorship concern whose affairs were managed by Mr. B.M. Nanda. The management no. 2 was established in 2007 and its proprietor is Ms. Neelu Sahgal and its affairs are dealt by her LIR No. 372/18. 8/16 son Mr. Kunal Sahgal. The management no. 2 was established in 2007 and it does business from first floor of the building in which the management no. 1 is doing business from the mezzanine floor. It is submitted that both managements do not have anything in common except that the proprietors were father and daughter. They further submitted that the claimant had never worked with any of the management as a regular employee. Mr. B.M. Nanda, proprietor of management no. 1, used to avail his service only when there was any need. About parking receipts placed on record by claimant, they argued that the same are fabricated and custody is improper because at the time of reimbursement of parking charges, the owner takes back parking receipts from the driver.
11. Mr. Ram Naresh Sharma, record keeper from Trade and Taxes Department, appeared in the witness box as M1W1 and M2W2 and he placed on record the dealer profile and DP1 detail of both managements as Ex. M1W1/B, Ex. M1W1/C and Ex. M2W2/A and Ex. M2W2/B respectively. As per Ex. M1W1/B, the name of the dealer is M/s S.D. Nanda & Sons i.e. management no.
1. Date and registration is mentioned as 01.07.1957. As per Ex. M1W1/C, the name of the firm is M/s S.D. Nanda & Sons and its principal place of business is ground floor, premises no. 50, Shradhanand Marg, G.B. Road, Delhi06 and it is having accounts in Dena Bank and State Bank of India. Name of the proprietor is LIR No. 372/18. 9/16 mentioned as Mr. Brij Mohan Nanda and name of the manager is also mentioned as Brij Mohan Nanda. As per dealer profile Ex. M2W2/A of management no. 2, the name of the dealer is KTech Automation and its address is 50, , G.B. Road, Shradhanand Marg, Delhi06. It was registered on 15.09.2007. As per DP1 detail Ex. M2W2/B of management no. 2, its name is KTech Automation and it is a proprietorship concern. Principal place of its business is premises no. 50, Floor No. 1, G.B. Road, Shradhanand Marg, Delhi06. Name of the person having interest in the business is mentioned as Ms. Neelu Sahgal and the name of the manager is mentioned as Mr. Kunal Sahgal. It becomes clear from above documents that Mr. Brij Mohan Nanda is proprietor of management no. 1 whereas proprietor of management no. 2 is his daughter Ms. Neelu Sahgal. Manager of management no. 1 was Mr. Brij Mohan Nanda himself whereas the manager of management no. 2 is Mr. Kunal Sahgal, son of Ms. Neelu Sahgal. The management no. 1 is doing business from ground floor, premises no. 50, Shradhanand Marg, G.B. Road, Delhi06 whereas the management no. 2 is doing business from first floor of the same building. The management no. 1 was established in 1957 whereas management no. 2 was established in 2007. Both managements are filing returns separately before different departments. Hence, it is held that both managements are separate and distinct entities having nothing LIR No. 372/18. 10/16 common except that both are headed by father and daughter respectively.
12. The first document relied upon by claimant to show his relationship with management no. 2 is one account page as Ex. WW1/4 which, as per the arguments of Ld. ARW, is bearing the signature of Ms. Neelu Sahgal i.e. proprietor of management no. 2. Designation of the claimant is mentioned as driver on the top of that page and vehicle number is mentioned as DL9CY7081. It bears signatures of two persons at two different places. The claimant did not depose at what place the signature of Ms. Neelu Sahgal is. He did not place on record report of any handwriting expert to prove that Ex. WW1/4 is bearing the signature of Ms. Neelu Sahgal. He did not produce any other document having the admitted signature of Ms. Neelu Sahgal so as to enable the court to compare signatures appearing on Ex. WW1/4 with the admitted signature of Ms. Neelu Sahgal. Moreover, it does not become clear to which month and year Ex. WW1/4 pertains. Even if it is presumed that the said document is bearing the signature of Ms. Neelu Sahgal, it may be possible she might have signed the same as one of the legal representative of Mr. B.M. Nanda after his death. So, the Ex. WW 1/4 is not proving his relationship with management no. 2.
On the other hand, management no. 2 has placed on record employment and remuneration register of its both employees from LIR No. 372/18. 11/16 April 2014 to January 2017. Name of the claim is missing in that register.
So, it is held that claimant was not employed with management no. 2.
13. In order to prove relationship with management no. 1, the claimant is relying upon parking receipts of vehicle no. 7081 and insurance papers of vehicle no. DL9CY7081. Arguments of Ld. ARMs that custody of parking receipts Ex. WW1/1 and Ex. WW1/2 is not proper, is of no consequence because the owner, while reimbursing parking charges, does not insist, ordinarily, for parking receipts. Receipts like Ex. WW1/1 and Ex. WW1/2 always remain with the driver. The claimant had got insured Maruti Swift Desire VXZ car no. DL9CY7081 from National Insurance Company and while inspecting the car, the company had issued two receipts Ex. WW1/3. On both receipts, the name of the owner is mentioned as Mr. S.D. Nanda and sons and both are bearing the signature of claimant as representative of the owner. A specific stand was taken by the claimant in statement of claim that he used to drive vehicle no. DL9CY7081 of the management. The management no. 1, in written statement, did not take the plea that said vehicle was not owned by it.
Parking receipts and inspection reports are duly corroborated by WW2 Mr. Durga Prasad who deposed that claimant had worked LIR No. 372/18. 12/16 with management no. 1 as driver from 2013 to 2017. It is pertinent to mentioned that WW2 had worked with management no. 1 as Peon from 1974 to 2017.
14. In view of above discussion, it is held that claimant was employed with management no. 1 and not with management no. 2. Issue no. 2:
15. Ld. ARM for management no. 1 argued that affairs of management no. 1 were looked after by Mr. Brij Mohan Nanda who expired on 07.12.1966 and since then, it has closed business activities and so, her daughter had sent intimation to VAT office about that fact and that is why the management no. 1 did not file VAT return subsequent to the second quarter of financial year 20162017.
Ld. ARW argued that the management no. 1 is still doing business through three daughters of Brij Mohan Nanda. He further argued that the management no. 1 had not sent any intimation to any public authority that it had closed business operations after the death of Mr. Brij Mohan Nanda.
16. All parties are agreeing and also it has been proved by death certificate Ex. M1W2 of Mr. Brij Mohan Nanda, who was proprietor as well as manager of management no. 1, has expired on 07.12.2016. Record keeper from Trade and Taxes Department, has placed on record intimation letter Ex. M1W1/A dated 27.02.2018 LIR No. 372/18. 13/16 sent to it by Ms. Neelu Sahgal in which it is mentioned that her father, who was proprietor of management no. 1, had left for heavenly abode on 07.12.2016 and thereafter its operations are inactive and it has permanently stopped from the date of death of the proprietor and that it was being declared that no commercial or financial dealings had been initiated or concluded after his death. That document cuts the arguments of Ld. ARW to size that the management no. 1 had not intimated any public authority that it had closed business operations after the death of its proprietor.
As per dealer profile Ex. M1W1/B of management no. 1 for the year 20162017, it had filed VAT returns only up to the second quarter i.e. from 01.07.2016 to 30.09.2017 and no VAT return was filed for the subsequent quarters. Non filing of returns for the subsequent quarters also suggests that management no. 1 did not carry on any business activity after the death of Mr. B.M. Nanda.
Even WW1 is not aware whether the management no. 1 is doing business after the death of its proprietor as he deposed that he did not know whether the work is being done at M/s S.D. Nanda & Sons after the death of Mr. B.M. Nanda. This issue has been concluded by WW2 by deposing in crossexamination that no other worker used to come to work place after the death of Mr. B.M. Nanda. He next deposed that after his death, no business activity was going on in management no.1.
LIR No. 372/18. 14/1617. In view of above discussion, it is held that the management no. 1 has closed down its business in December 2016 after the death of its proprietor Mr. Brij Mohan Nanda. Issue no. 3:
18. It has already been held that management no. 1 closed business activities in December 2016. So, there was no occasion for it to terminate service of the claimant on 20.02.2017. His job came to an end due to closure of business.
Issue no. 4:
19. Claimant's service was not terminated by management and rather, it came to an end due to closure of business. In case of closure, as per section 25FFF of ID Act 1947, the claimant is entitled to the protection of section 25F of the Act. The claimant, in the case of closure, is not entitled to the relief of reinstatement because the business has already been closed down. The claimant's last drawn salary was Rs. 12,500/. He has served the management for about 4 years. In this way, he is entitled to Rs. 25,000/ as closure compensation and Rs. 12,500/ as notice pay. The legal representatives of Mr. Brij Mohan Nanda are directed to pay claimant a sum of Rs. 37,500/ from the estate of Mr. Brij Mohan Nanda in the proportion they get the estate. They are directed to pay that amount to claimant within one month from today failing which it shall be liable to pay interest @ 9% per annum from today LIR No. 372/18. 15/16 till realization. Parties to bear their own costs. Award is passed accordingly.
20. The requisite number of copies be sent to the Govt. of NCT of Delhi for publication of the award. File be consigned to record room.
Dictated & announced (UMED SINGH GREWAL) in the open Court on 28.07.2018. PILOT COURT/ POLCXVII DWARKA COURTS, NEW DELHI LIR No. 372/18. 16/16