Delhi District Court
Shri Sadho Singh Negi vs M/S Embassy Restaurant on 24 November, 2022
Shri Sadho Singh Negi Vs. M/s Embassy Restaurant
LIR No.9206/16
IN THE COURT OF SHRI TARUN YOGESH
PRESIDING OFFICER: LABOUR COURT08
ROUSE AVENUE DISTRICT COURTS: NEW DELHI
LIR No. 9206/16
CNR No. DLCT130115162016
In the matter of:
Shri Sadho Singh Negi
S/o Shri Belam Singh Negi,
Aged about 38 years,
Represented by
Delhi State General Mazdoor Union (Regd.),
61, IInd Floor, Duplex Flat,
Gud Mandi, Delhi110007
... Workman
Versus
M/s Embassy Restaurant,
13, Alipur Road, Civil Lines,
Delhi110054
...Management
Date of Institution : 28.09.2016
Date of Award : 24.11.2022
AWARD
1. Reference under Section 10(1)(c) read with Section 12(5)
of Industrial Disputes Act,1947 has been made by Joint Labour
Commissioner, North District, Ashok Vihar, Delhi setting out
following terms of reference:
"Whether the services of Shri Sadho Singh
Negi S/o Shri Belam Singh Negi have been
terminated illegally and/or unjustifiably
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Shri Sadho Singh Negi Vs. M/s Embassy Restaurant
LIR No.9206/16
by the management; if so, to what relief is
he entitled and what directions are
necessary in this respect?"
2. As stated in the claim, Shri Sadho Singh Negi had been
working with M/s Embassy Restaurant as 'Assistant Cook
(Chinese)' since 01.10.2010 and his last drawn monthly wage
was Rs.17,555/. Workman performed his duties honestly and
diligently without any complaint but repeated requests for legal
facilities including appointment letter, attendance register, leave
book, payslip, yearly and casual leave, overtime wages, bonus,
etc. were ignored by respondent. It is submitted that claimant
being unwell from 30.05.2015 to 01.06.2015 was not allowed to resume duty on 02.06.2015, 03.06.2015 and thereafter despite submitting reply to letter dated 02.06.2015 and his services were illegally terminated by management by depositing Rs.8,395/ in his account through cheque and remaining Rs.9,160/ paid in cash on 05.06.2015 towards monthly wage of May 2015.
3. Workman was not allowed to join duty despite complaint dated 17.06.2015 made to Labour Inspector and settlement could not be effected before Conciliation Officer, Labour Office, Nimri Colony, Ashok ViharIV, New Delhi leading to reference of dispute by Joint Labour Commissioner, North District, Delhi. It is also submitted that workman could not find alternate job and is entitled to be reinstated in service with back wages and other consequential benefits.
4. Respondent M/s Embassy Restaurant has contested the Page No. 2/8 Shri Sadho Singh Negi Vs. M/s Embassy Restaurant LIR No.9206/16 claim inter aila on following grounds:
i. Services of workman have never been terminated at any point of time rather workman started absenting from duty without information or prior approval and continued to remain absent upon being asked to submit explanation for his unauthorized absence. ii. Workman may resume his duties but subject to (a) submission of explanation for his unauthorized absenteeism AND (b) no work no pay for the period of his absenteeism.
5. Averments in the claim have been denied in corresponding paras of reply on merit and following issues were settled on 26.04.2017 after rejoinder and completion of pleadings:
1. Whether the services of claimant were illegally terminated by the management or whether the claimant himself absented from duty of the management? ... OPW
2. Relief.
6. Workman Shri Sadho Singh Negi has reiterated averments in the claim in his affidavit Ex.WW1/A tendered in evidence besides relying upon following documents:
i. Photocopy of Office ID Card Ex.WW1/1 (OSR); ii. Treatment summary Ex.WW1/2 (colly); iii. Complaint dated 17.06.2015 to Assistant Labour Commissioner Ex.WW1/3;
iv. Reference made by Joint Labour Commissioner Page No. 3/8 Shri Sadho Singh Negi Vs. M/s Embassy Restaurant LIR No.9206/16 Ex.WW1/4;
v. Tour ticket from Delhi to Goa of Spicejet Airlines Ex.WW1/5 (3 pages colly);
vi. Copy of statement of account of Provident Fund Ex.WW1/6 (OSR);
vii. Copy of ESIC card Ex.WW1/7 (OSR); viii. Notice dated 02.06.2015 issued by management for absenting from duty Ex.WW1/8.
7. His crossexamination has been recorded on 09.01.2019 and 30.03.2022 and workman's evidence was closed.
8. MW1 Shri Sandeep Govil, Assistant Manager, M/s Embassy Restaurant, on the other hand, has tendered affidavit Ex.MW1/A in evidence insisting that services of workman have never been terminated by management rather workman being asked to submit explanation for unauthorized absence from duty started absenting and instead filed false complaint against management. MW1 has relied upon following documents:
i. Photocopy of salary sheet for the months February 2015 to April 2015 Ex.MW1/1 (collyOSR); ii. Photocopy of attendance record of workman for the months of January 2015 to May 2015 Ex.MW1/2 (collyOSR).
9. Crossexamination of MW1 has been recorded on 28.07.2022 and management evidence was closed.
10. I have perused statement of claim, written statement and evidence led on judicial file.
11. Workman in para '7' of the claim has mentioned Page No. 4/8 Shri Sadho Singh Negi Vs. M/s Embassy Restaurant LIR No.9206/16 Rs.8,395/ deposited in his account through cheque and remaining Rs.9,160/ paid in cash on 05.06.2015 towards monthly salary of May 2015 besides alleging termination of service without payment of overtime wage, bonus, leave encashment, retrenchment compensation and one month salary in violation of Section 25F of the Industrial Disputes Act, 1947.
12. Respondent M/s Embassy Restaurant, on the other hand, has denied termination of service by contending that workman upon being asked to submit his explanation for unauthorized absence from duty has filed false claim against management instead of submitting his written explanation.
13. Notice dated 02.06.2015 directing workman to submit written explanation for unauthorized leave from 30.05.2015 to 01.06.2015 has been referred as Ex.WW1/8 and workman Shri Sadho Singh Negi has deposed to have submitted medical certificate after availing medical leave in his crossexamination recorded on 09.01.2019. Relevant extract of his cross examination is reproduced below:
"I had furnished my medical certificate after availing medical leave. Volunteered:
Photocopy had been given to the management. It is wrong to suggest that I had not submitted original medical certificate to the management....."
" ..... It is wrong to suggest that I had not given the reply to letter Ex.WW1/8 to the management....."Page No. 5/8
Shri Sadho Singh Negi Vs. M/s Embassy Restaurant LIR No.9206/16
14. Matter was thereafter received in this court by way of transfer and further crossexamination of WW1 Shri Sadho Singh Negi was recorded on 30.03.2022 wherein workman having reiterated to have submitted reply in writing has nevertheless deposed of having not filed copy of reply on judicial record. Relevant portion of his crossexamination recorded on 30.03.2022 is extracted below:
"Showcause notice issued by management was replied in writing. I have not filed copy of reply on judicial record. It is correct that I did not visit any ESI hospital for treatment at the relevant time mentioned in the showcause. It is wrong to suggest that medical papers on judicial record are forged and fabricated documents."
15. Though MW1 Shri Sandeep Govil could not recollect whether reply along with medical documents was submitted by claimant on 02.06.2015, he nevertheless, has denied suggestion that workman was not allowed to resume duty despite reply to letter dated 02.06.2015 and that he & Shri Devender Singh Negi did not allow the workman to meet Shri Sunil Malhotra.
16. Written statement denying termination of service by management along with offer to resume duty subject to submission of explanation for unauthorized absenteeism and no work no pay for the period of absenteeism was filed on 22.03.2017 whereas issues were settled by the Court on 26.04.2017 after refusal to rejoin duty.
17. It is contended by the workman that reply was submitted Page No. 6/8 Shri Sadho Singh Negi Vs. M/s Embassy Restaurant LIR No.9206/16 in response to letter dated 02.06.2015, however, copy of reply has not been filed on judicial record and workman Shri Sadho Singh Negi having deposed that showcause notice issued by management was replied in writing has nevertheless admitted that copy of reply has not been filed on judicial record. Since original prescription and certificate issued by Dr. Ravi K. Jain have been filed and referred as Ex.WW1/2 during examination inchief so mere assertion without copy of reply cannot be treated as compliance of letter dated 02.06.2015.
18. Termination of service has been denied by management in addition to offer to resume duty subject to submission of explanation for unauthorized absenteeism but workman has neither filed copy of reply to letter dated 02.06.2015 nor accepted the offer to resume duty.
19. Termination of service cannot therefore be inferred in the absence of compliance of letter dated 02.06.2015 directing workman to submit written explanation for his unauthorized leave which is very much evident from the fact that original prescription and certificate have been filed by Shri Sadho Singh Negi during examinationinchief recorded on 04.09.2018.
20. Workman having lodged complaint dated 17.06.2015 instead of submitting written explanation for unauthorized leave from 30.05.2015 to 01.06.2015 is precluded from raising industrial dispute.
21. FINDING: Issue No.1 is decided against workman Shri Sadho Singh Negi in the absence of evidence to prove compliance of letter dated 02.06.2015 and alleged termination Page No. 7/8 Shri Sadho Singh Negi Vs. M/s Embassy Restaurant LIR No.9206/16 of service by management.
22. RELIEF: Statement of claim seeking reinstatement in service with back wages and other consequential benefits is is dismissed.
23. Reference stands answered in aforesaid terms.
24. Copy of Award be sent to Joint Labour Commissioner, North District, Ashok Vihar, Delhi for publication.
25. Judicial file be consigned to record room.
ANNOUNCED IN THE OPEN COURT
DATED: 24.11.2022 Digitally signed
by TARUN
TARUN YOGESH
YOGESH Date:
2022.11.25
15:38:23 +0530
(TARUN YOGESH)
PRESIDING OFFICER - LABOUR COURT08
ROUSE AVENUE COURTS: NEW DELHI
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