Delhi District Court
Sh. Subhash Sahni vs M/S. Allied Trade Link Private Limited on 24 April, 2018
IN THE COURT OF SHRI UMED SINGH GREWAL
PILOT COURT / POLCXVII, ROOM NO. 514 :
DWARKA COURTS: NEW DELHI
LIR No. 3411/17
IN THE MATTER OF:
Sh. Subhash Sahni
S/o Sh. Pujan Sahni, Age50 years,
R/o C24, Rajan Vihar, Hastsal Road,
Near Raghuvir Singh School, Uttam Nagar,
New Delhi110059 (Mobile No. 9654966049)
C/o General Mazdoor Union (Regd.),
T43, Karampura, Near Haryana Dharamshala,
New Delhi110015.
(Sh. Surender Kumar, General Secretary,
Mobile No. 9899609439, 9871309504)
..............Workman
Versus
M/s. Allied Trade Link Private Limited
16/1, Arya Samaj Road, Karol Bagh, New Delhi 110005
(Sh. Inder Pal Matta, Director, Mobile No.9810048766).
............. Management
DATE OF INSTITUTION : 05.12.2017
DATE ON WHICH AWARD RESERVED : 20.04.2018
DATE ON WHICH AWARD PASSED : 24.04.2018
A W A R D :
1. This reference was sent by the Government of NCT of
LIR No. 3411/17. 1/17
Delhi vide Order No.F.24(196)/17/Ref./CD/Lab./102529 dated
29.11.17, with the following terms :
"Whether Sh. Subash Sahni S/o Sh. Pujan Sahni
age 50 years absented from his duties by not
reporting duty at the new shifted place of the
office of the management or his services have
been terminated illegally and/ or unjustifiably by
the management and if so, to what relief is he
entitled and what directions are necessary in this
respect?"
2. Claimant's case is that he had started working with
management as Electrician in January, 1996 at the last drawn salary
of Rs.13,192/ per month. His service record was neat and clean
and he gave no opportunity of complaint to management. 20
persons used to work with management which did not provide him
legal facilities like leave book, ESI, PF, leave encashment and
appointment letter etc. He was senior most in hierarchy and hence,
the management wanted to get rid off him and when failed, his
service was terminated on 04.07.2017 illegally withholding earned
wages for 3 days of July, 2017 against which he sent demand notice
dt. 06.07.2017 which went unreplied. Earned wages for the month
of June, 2017 were paid when he filed statement of claim before
Conciliation Officer, where the management had taken a false
objection that it had shifted its office from Delhi to Faridabad
whereas it was still doing business in Delhi. He was always ready to
LIR No. 3411/17. 2/17
work and hence, the same plea was repeated in rejoinder before
Conciliation Officer but he was not reinstated and the matter
remained unresolved. Before terminating his service, the
management did not issue any notice and did not tender notice pay
and retrenchment compensation. He had never absented or left duty
and never took full and final payment from management. He is
unemployed since termination.
3. It is denied in written statement that claimant was
employed as Electrician at the last drawn salary of Rs.13,192/. He
was not more than a temporary employee whose duty was that of a
field boy. There were several complaints of absence without
information and silly mistakes against him for which he was
reprimanded several times. Only 7 employees including claimant
used to work with management and hence, the provisions of ESI
and PF were not applicable. Mr. Inder Pal Matta is Director of the
company and his kidney failed chronically in 2013 and since then
he is on dialysis thrice a week. Therefore, it became very difficult
for him to maintain office in Delhi and hence, shifted it to his
residence in Faridabad, Haryana. The office is very close to metro
station, where 6 erstwhile employees are still working happily. The
claimant had also joined duty at Faridabad but stopped visiting
there in July, 2017 without permission and intimation. In reply,
LIR No. 3411/17. 3/17
before Conciliation Officer, it had asked the officer to direct
claimant to join duty but despite it, he did not respond. His service
was never terminated and hence, it is still ready to take him back on
duty in Faridabad office.
4. Following issues were framed on 16.01.2018:
1. Whether claimant himself abandoned the job by remaining
unauthorizedly absent w.e.f. July 2017? OPM
2. Whether termination of service of claimant by management
on 04.07.2017 is illegal and / or unjustifiable? OPM
3. Relief.
5. In order to substantiate the case, the claimant tendered
his affidavit in evidence as Ex.WW1/A mentioning all the facts
stated in statement of claim. He relied upon following documents:
1. Ex.WW1/1 is demand notice dated 06.07.2007.
2. Ex.WW1/2 is postal receipt vide which demand notice was sent
to management.
3. Ex.WW1/3 is statement of claim before Conciliation Officer.
4. Ex.WW1/4 is rejoinder filed before Conciliation Officer.
5. Ex.WW1/5 is copy of identity card.
6. The management examined 3 witnesses:
MW1 Mr. Sunny is LDC from the office of Trade and
LIR No. 3411/17. 4/17
Tax, ITO, Delhi and he placed on record following documents:
1. Ex.MW1/1(colly, 46 pages) are the certified copies of
quarterly returns pertaining to the period 20162017 of M/s
Allied trade Link Pvt. Ltd.
2. Ex. MW1/2 (colly, 34 pages) are the certified copies of the
returns pertaining to the period 20172018 of M/s Allied
trade Link Pvt. Ltd.
These returns have been certified by Asstt. Commissioner,
Ward no. 44.
MW2 Mr. Aman Kumar is MTC from the office of
Labour Department, Pusa and he produced the original conciliation
file titled as "Subhash Sahni Vs. M/s Allied Trade Links Pvt. Ltd."
as Ex.MW2/1 (22 pages).
MW3 Mr. Inderpal Matta is managing director of the
management and he repeated the contents of written statement in
his affidavit in evidence Ex.MW3/A. Additionally, he deposed
that all remaining previous six employees working in Faridabad.
The claimant had also joined there but he stopped visiting duty
place w.e.f. 04.07.2017 without intimation. He was habitual
absentee and hence, the management thought that he would join
duty after 23 days. He was surprised to see the demand notice dt.
06.07.2017 from him. He next deposed that he had shifted office
from Karol Bagh to Faridabad from Delhi in July, 2017 due to
kidney problem for which he has to visit hospital thrice a week. He
relied upon following documents:
LIR No. 3411/17. 5/17
(i) Ex.MW3/1 (06 pages) are copies of attendance and payment
register from May to July, 2017.
(ii) Ex.MW3/2 is medical certificate issued by MAX hospital.
Issue Nos. 1 & 2:
7. Both these issues are interconnected and hence, are
being take up together.
8. Ld. ARW argued that the claimant had joined
management in January, 1996 at the last drawn salary of
Rs.13,192/. 20 persons used to work with management but it was
not providing any of them legal facilities like leave book, ESI, PF,
leave encashment and appointment letter etc. He was senior most
employee and hence, his service was terminated on 04.07.2017
withholding earned wages for three days of July, 2017. He had
filed a case before Conciliation Officer where he was paid earned
wages for June, 2016. He submitted that the management has taken
a false plea that it had shifted its office to Karol Bagh, Delhi due to
illness of director because it has not placed on record any document
to prove that fact. Address of management is still appearing as of
Karol Bagh in the record of Registrar of Companies. MW3 has also
not filed any document to prove that he is suffering from any
illness. Management's plea that claimant had abandoned the job by
remaining absent unauthorizedly w.e.f. 04.07.2017 is false because
LIR No. 3411/17. 6/17
as per attendance register, he was marked absent even on first three
days of July, 2017. He was marked absent till 04.07.2017 and
thereafter, straight line was drawn against his name suggesting that
his name was struck off from the rolls. Before terminating his
service and striking his name off from rolls, no notice was given
and not notice pay and retrenchment compensation were tendered.
No call back notice or memo to explain absence was ever issued to
him. The management had taken plea before Conciliation Officer
that the claimant may join duty at any time. In response, he had
filed rejoinder to the effect that he was still ready to join duty but he
was not reinstated.
Ld. ARM replied that allegation of the claimant that 20
persons used to work with management is patently false because as
per attendance register for May, June & July, 2017, there were only
seven employees including claimant. So, the provisions of ESI and
PF were not applicable. MW3 is the director and he is suffering
from chronic Kidney disease for which he has to undergo dialysis
and so, he was not in a position to maintain office in Delhi and
hence, shifted to his residence in Faridabad. He relied upon VAT
returns from July, 2017 onwards to show that no business was
transacted by the management in Delhi since that month and it
proves that the management had shifted its base to Faridabad. He
further submitted that claimant was absent for 10 days in June, 2017
LIR No. 3411/17. 7/17
after joining in Faridabad. He did duty for 34 days in the end of
June, 2017 and started absenting w.e.f. 01.07.2017 and the
management thought that he would return in 23 days as he was
habitual absentee. But it was surprised to receive demand notice
dated 06.07.2017. He did not wait service of demand notice and
filed case before Conciliation Officer on the next day i.e.
07.07.2017 where he was given offer that he may join duty back at
any time to which he had replied in positive but did not contact
management thereafter. The management has moved an application
before this court also for giving him direction to join back. In reply,
he did not mention that he was ready to join back. He submitted
that by remaining absent unauthorizedly w.e.f. 01.07.2017, the
claimant has abandoned the job deliberately as he did not want to
do duty at Faridabad which is at a distance of two hours on one side
from his house.
9. The attendance register Ex.MW3/1 for May, June &
July, 2017 has been assailed on the ground that the same is not
corroborating the testimony of MW3. It is correct that it has been
deposed by MW3 that claimant was on unauthorized leaves from 20
to 30 June, 2017. It is also correct that the alphabet 'P' is appearing
against his name on dates 28, 29 and 30 June, 2017. So, it is
possible that he might have attended duty on those three days.
LIR No. 3411/17. 8/17
WW1 deposed in crossexamination that he was on leave from
10.06.2017 to 01.07.2017. Crossexamination of WW1
corroborates the crossexamination of MW3 that the claimant had
not attended duty from 10.06.2017 to 30.06.2017. Plea of WW1 is
that he was on leave whereas MW3 deposed that he was on
unauthorized leave. As the factum of leave has been asserted by
WW1, onus is upon him to prove that he was on leave from
10.06.2017 to 30.06.2017. In this regard, he did not place on record
copy of any leave application sent to management. He did not
examine any witness from management to prove that his leave from
10.06.2017 to 30.06.2017 had been sanctioned by management. So,
the crossexamination of WW1, MW3 and attendance register
Ex.MW3/1 prove the fact that claimant was absent unauthorizedly
previously also.
It is correct that it has been deposed by MW3 that last
working day of the claimant was 04.07.2017. He deposed in cross
examination that he had not come to duty on first three days of July,
2017 also and when he came on 04 th July, he (MW3) became angry
due to his absence and asked him to remain in employment if he
was not feeling any shame and leave the job if he was feeling
shame; he should leave the job. On the other hand, WW1 deposed
that he worked with management on 4 & 5 th July, 2017. Thereafter,
management stopped marking his presence saying that there was no
LIR No. 3411/17. 9/17
work for him. So, as per him, his service was terminated on
06.07.2017 but he is not corroborated by attendance register
Ex.MW3/1 which shows that he was absent even on 1, 2, 3 & 4 th
July, 2017. Thereafter, a straight line was drawn against his name
suggesting that he did not work after 30.06.2017.
The reason of termination of service disclosed by
claimant is his seniority but he has no explanation why the
management would terminate a senior employee. That reason is not
convincing one.
10. Regarding ailment of MW3 / Director, the claimant
admitted in crossexamination that he remains ill generally and
undergoes dialysis three times a week. He further deposed that up
to 04.07.2017, Mr. Matta used to attend office sometimes but
generally, the office was looked by his son Mr. Amit Matta. So, the
illness of MW3 has been admitted by claimant himself. The
management has placed on record medical certificate of MW3 as
Ex.MW3/2 issued by Max Health Care in which it is mentioned that
Mr. I.P. Matta, 78 years old, was patient of chronic Kidney disease
since February, 2014 and that he was on maintenance hemodialysis
three times in a week in Max Smart Super Specialty Hospital,
Saket, New Delhi. MW3 also deposed that he undergoes dialysis
thrice a week. Plea of management is corroborated by cross
LIR No. 3411/17. 10/17
examination of claimant and medical certificate Ex.MW3/2.
In order to prove that the management did not transact
any business after June, 2017 in Delhi, it examined MW1 Sh.
Sunny, LDC from the office of Trade and Tax and he placed on
record VAT returns of the management as Ex.MW1/1 (collectively)
from 01.04.2016 to 19.02.2018. Those returns show that the
management had some turn over in Delhi office till March, 2017.
From July, 2017 onwards, the management started filing VAT
returns monthly and those show that it had zero business in Delhi
from June, 2017 onwards. The returns prove the plea of the
management that it was no more doing business in Delhi because it
had shifted its office to the residence of MW3 due to his illness. On
the other hand, the claimant has not placed on record any document
to show that management was still doing business in Delhi.
Address of management in the record of Registrar of Companies as
of Karol Bagh is of no consequence because the VAT returns are
proving that it is not transacting any business in Delhi since July,
2017. Hence, it is held that the management has successfully
proved that it has shifted its office to Faridabad from Delhi.
11. Claimant deposed that his service was terminated on
04.07.2017 but in crossexamination, his deposition is that it was
terminated on 06.07.2017. On the same day, he issued demand
LIR No. 3411/17. 11/17
notice Ex.WW1/1 dated 06.07.2017 to the management. He did not
wait service of demand notice and filed case before Conciliation
Officer on the next day i.e. 07.07.2017. He has no explanation why
he was in so hurry. He should have waited for service of demand
notice and reply of the management but it seems that everything
was preplanned and that is why, he issued demand notice promptly
and then filed statement of claim before Conciliation Officer on the
next day.
MW2 has placed on record conciliation proceedings
containing written statement of the management and rejoinder of
the claimant. In written statement dated 12.09.2017, it is mentioned
by management that claimant had come to its office on 04.07.2017
and asked for settlement of his account as he did not want to work
with it. It is further mentioned that the management never
terminated his service whereas he was absenting since then. It is
further mentioned that he should join back duty in 10 days
otherwise, it would be compelled to remove him from job. In
rejoinder, it is mentioned that he had demanded management
several times after termination of service on 04.07.2017 that he
should be reinstated but he was not taken back. It is further
mentioned that he was ready to join duty. Despite filing of such
kind of written statement and rejoinder, the matter could not be
resolved and reference was sent to this court. It means that either
LIR No. 3411/17. 12/17
the management was not willing to take him back duty or the
claimant did not want to work.
The management moved an application before this
court for giving direction to claimant to join back duty. In reply, it
is mentioned that the management was still doing business in Delhi
and that it had not shifted office to Faridabad. It is further
mentioned that he was still ready to do job with management at
Faridabad but subject to increment of salary and other allowances.
This is the first time that the claimant opened his mouth that he
wanted to join management in its office at Faridabad provided his
salary and allowances were hiked. It is conditional acceptance.
MW3 gave offer in crossexamination that the management was
still ready to take him back on duty. The claimant also deposed that
he was ready to join back duty. In order to clarify which of the
party was lying, the claimant was asked during final arguments to
join back duty in Faridabad. Initially, he replied that he was ready
but later, he submitted that Faridabad office is at a distance of two
hours on one side from his house. He submitted that he cannot
travel four hours in a day to do job and saying so, he refused to join
duty at Faridabad. His reply shows that he had wrongly mentioned
in rejoinder before Conciliation Officer that he was ready to work
with management. The Conciliation Officer might have read his
mind and that is why, he came to the conclusion that the parties
LIR No. 3411/17. 13/17
were at cross versions and referred the case to this court. Claimant's
reply during final arguments shows that it was he who had
abandoned the job intentionally.
12. It was held by Hon'ble High Court of Delhi in 'M/s.
Trina Engineering Co. Pvt. Ltd. Vs. The Secretary (Labour) &
Others LLR 2006 Page 51 Delhi' that restatement of a workman
even without back wages will not be tenable when the management
had not refused duties as alleged by him who was repeatedly called
back to resume duties but failed to do so despite that the offer for
resumption of duty which was also made before Conciliation
Officer by the management.
It was held by Hon'ble High Court of Delhi in 'Tejpal
Vs. Gopal Narain and Sons and Another LLR 2006 Page 1142
Delhi' that the labour court had rightly declined to grant relief to a
workman alleging wrongful termination but not reporting for duty
as offered to him. It further held that employee did not go to join
duties despite offer of management asking him to join services.
The Bombay High Court held in 'Sonal Garments Vs.
Trimbak Shankar Karve LLR 2003 Page 5 Bombay' that if the
workman himself started absenting from duty and did not accept the
offer of the management to resme duty despite several letters and
substantial offers made in the WS and also before the court, he is
LIR No. 3411/17. 14/17
not entitled to either restatement or back wages.
It was held by Bombay High Court in 'Raju Shankar
Pujari Vs. Chamboor Warehouse Co. & Another LLR 2003 Page
1150 Bombay' that a workman cannot reap the benefit of his own
fault when he fails to respond the offer of the employer to join
duties, more particularly to such offer was reiterated before the
Conciliation Officer and the Labour Court.
It was held by Bombay High Court in 'Competition
Printing Press Vs. Shriut Jaiparkash Singh & Another LLR 2001
Page 1150 Bombay' that if the workman himself started absenting
from duty and did not accept the offer of the management to resume
the same despite different letters and substantive offers made in
WS, he is not entitled to any relief.
It was held by Bombay High Court in 'M/s. Purafil
Engineers Pune Vs. Sheikh Anwar Abdul Rehman in LLR 2000
Page 268 Bombay' that the object of the labour laws is not meant to
harass the employers. But to get injustice undone. This machinery
cannot be exploited to extract mere money from the employers in an
unjust way. It is very clear from the conduct of the workman that he
is not interested in reinstatement when offered in 1992, he will not
be entitled to get any relief.
It was held by Punjab & Haryana High Court in
'Mukesh Khanna Vs. Chandigarh Administration, Chandigarh
LIR No. 3411/17. 15/17
and Another LLR 2000 Page 168 Punjab & Haryana' that the
workman who challenged his termination was not interested in his
job but wanted to make money without doing any work and hence
he is not entitled to seek any relief in as much as the provisions of
Industrial Disputes Act are meant to help the needy. These are not
to be invoked to help a person who is greedy.
It was held by Bombay High Court in 'New India
Coop. Bank Ltd. Vs. Shankar B. Bangera in LLR 2007 Bombay
Page 149' that abandonment of service has been rightly presumed
when the employee was repeatedly informed through notices for
resumption of duty but he had failed to do so.
It was held by Delhi High Court in 'Parshuram Shah
Vs. Govt. of NCT of Delhi & Another in LLR 2008 Page 256
Delhi' that the workman was offered service during conciliation
proceedings. The management witness was not cross examined
regarding the offer made during Conciliation proceedings. The
stand of the respondentmanagement that the workman had
abandoned his job voluntarily remained unrebutted.
It was held by Bombay High Court in 'M/s. N.R.K. House Vs. P.V. Tommy and Another in LLR 2009 Page 2 Bombay' that sufficient material on reord showed that the petitioner employer did not terminate the services of the workman. Having regard to the finding that there is no termination and the workman LIR No. 3411/17. 16/17 had voluntarily stayed away from employment, he is not entitled to back wages.
13. In view of above discussion, facts, circumstances, and citations, it is held that it was claimant who had himself left the job after shifting of office by management from Delhi to Faridabad because he did not want to travel long distance for job. Hence, there was no occasion for the management to terminate his service. Both these issues are decided in favour of management and against claimant.
Issue No.3:
14. Consequent to decision on issue Nos.1 & 2, it is held that claimant is not entitled to any relief. Statement of claim is dismissed. Parties to bear their own costs. Reference is answered accordingly. Award is passed accordingly.
15. 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 24.04.2018. PILOT COURT/ POLCXVII DWARKA COURTS, NEW DELHI Digitally signed LIR No. 3411/17. UMED by UMED 17/17 SINGH GREWAL SINGH Date:
GREWAL 2018.04.24
16:34:22 -0500