Delhi District Court
Between The vs The on 4 April, 2019
IN THE COURT OF SH. ATUL KUMAR GARG, PRESIDING
OFFICER, LABOUR COURT NO. XVI, SOUTH WEST DISTRICT,
DWARKA COURTS, NEW DELHI
Old ID No. 87/13
LIR No. 431/16
Date of institution 07.08.2013
Date of decision 04.04.2019
BETWEEN THE WORKMAN
Sh. Shiv Prasad Gupta,
S/o Late Sh. Ganesh Prasad Gupta,
R/o Raju Garden, Loni No. 2,
Near nalah Sunday Bazar,
Loni, District Ghaziabad,
Uttar Pradesh.
Through:-
Sanjay Sharma,
Advocate,
Chamber No. F-507,
5th Floor, KKD Court,
Shahdara, Delhi-110032.
VERSUS
THE MANAGEMENT OF
M/s Chopra Motor Company,
222/24, Kamal Motor Market,
Punja Sharif, Kashmere Gate,
Delhi-110006.
AWARD
1. By this award I shall dispose off the claim of the claimant filed
under Section 10-4(A) of the Industrial Disputes Act. In his statement of
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claim, workman has stated that he has been employed with the
management since 1985 as Office Attendant at the last drawn salary of
Rs. 8,000/- per month. He performed his duty with honesty and diligence
and did not give any chance of complaint to the management at any point
of time in regard to his work and behaviour. He further submitted that he
has not been provided legal facilities such as appointment letter, ESI &
PF, attendance card, proper records, minimum wages, bonus, overtime
wages, CL, PL, increment, bonus and festival off etc. He was regularly
demanding his legal facilities earlier also, but the management linger-on
the same on one pretext or other. He further submitted that his signature
were obtained on blank papers and vouchers while he was in service. On
his persistent request for legal facilities from the management, the
management got annoyed with him and to teach him the lesson, conspired
against him by delaying in payment of earned wages and withheld the
same for current month and the management all of sudden orally
terminated his services on 04.12.2012 without any notice. He submitted
that his termination of the services is illegal and unjustified and against
the principle of natural justice. He further submitted that he visited the
management on several occasions but the management instead of putting
him back on job started extending threat to implicate him in a case. He
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had sent the demand notice on 21.01.2013 by speed post through his AR
which was duly served, but the management neither reinstated him nor
cleared his dues. Thereafter, he was constrained to file claim against his
illegal termination from services before the Conciliation Officer.
However, the matter could not be settled there. He submitted that he is
unemployed since then. As such, he made prayer that he be given
reinstatement with full back wages.
2. The management had appeared and filed the written statement.
Management has taken the preliminary objections stating that the
workman has no locus standi to file the present case against the
management as he has not worked routinely as a workman with the
management and he has been doing his own business. He further stated
that there is no cause of action arises in favour of the workman and
against the answering management to file the present case after the
settlement dated 03.12.2012. The case of the workman is liable to be
rejected under order 7 Rule 11 CPC. He further submitted that the
workman has not come with clean hands and suppressed the material
facts i.e., his income of rupees 30.000/- from his own business of making
various "Done" from pressure machine and carrying the general store in a
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shop of his house and regarding his volunteer resignation dated
03.12.2012 before this court. He denied that the workman Sh. Shiv
Prasad Gupta had been in the employment of the management since 1985
as office attendant at the last drawn salary of Rs. 8,000/- per month. He
further submitted that the workman had worked with the management till
the month of November, 2012 when the worker wanted to go his native
village on the ground of disease and due to some dispute relating to his
property and that is why the workman left the service of the management
and settled all his dues on 03.12.2012 and received the payment through
cheques. He further submitted that workman was criminal in nature who
had sent a threat letter to the management to extort thirty lakh rupees
from the management and management lodged a complaint vide DD NO.
54-B dated 14.01.2013 against the workman due to his illegal activities
and a criminal case under Section 200 Cr.PC for the office under Section
386/506 IPC, PS Kashmiri Gate against the workman is pending. He
denied each and every fact mentioned in the statement of claim and
submitted that the claim of the claimant is liable to be dismissed.
3. Rejoinder has also been filed by the workman wherein he had
reiterated the averments made by him in his statement of claim and
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denied whatever has been stated by the management in the written
statement.
4. From the pleadings of the parties, vide order dated 26.03.2014,
following issues have been framed:-
1. Whether the workman completed his 240 days of continuous service
with the man in a calendar year?
2. Whether the workman resigned from his service of his own?
3. Whether the services of the employee has been illegally terminated
without following due process of law?
4. Relief.
No other issue arose or pressed and the matter was listed for
workman evidence.
5. Workman has appeared in the witness box. He has reiterated the
averments as mentioned by him in his statement of claim. He has relied
upon the documents Ex. WW 1/1 to Ex. WW 1/9. Ex. WW 1/1 is the copy
of the representation which has been de-exhibited and marked as Mark A,
Ex. WW ½ is the postal receipt, Ex. WW 1/3 is the demand notice dated
21.01.2013, Ex. WW ¼ is the postal receipt of demand notice, Ex. 1/5 is
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the complaint dated 15.02.2013, Ex. WW 1/6 is the complaint dated
15.02.2013, Ex. WW 1/6 is also the complaint dated 15.02.2013, Ex. WW
1/7 is the claim filed in the office of labour commissioner, Ex. WW 1/8 is
the failure report and Ex. WW 1/9 is the experience certificate dated
15.02.1992.
6. This witness was put to the test of cross examination whereby he
admitted that he was 10th pass. He did not remember when he passed 10 th
class, however, he did his education from Jaunpur, Uttar Pradesh. After
passing 10th class, he started working in his village Gorari Bazar, Kheta
Sarai, District Jaunpur, Uttar Pradesh and used to earn Rs. 100/- per
month. Thereafter, he came to Delhi in the year 1980. He was unmarried
when he came to Delhi. He got married in the year 1991. When he came
to Delhi, he started working here and there and used to earn Rs. 250/- to
Rs. 300/- per month. In the year 1980, he used to live at Loha Mandi,
Naraina, New Delhi in a rented house. He was having five children. He
denied that one of his children used to remain ill. Volunteer he deposed
that his one daughter is handicapped. He admitted that he did not have
any appointment leter issued by the management. He admitted that he did
not have any documentary proof to show that how much monthly salary
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he was getting from the management. He admitted that he did not have
any document to show that he had worked with the management for 240
days regularly. He had filed the rejoinder. He admitted that the contents of
the rejoinder are true and correct to the best of his knowledge and nothing
has been concealed. He admitted that he was appearing in photographs
Ex. WW 1/M1 and Ex. WW 1/M2. He further admitted that all the photo
Ex. WW 1/M1 to Ex. WW 1/M3 belongs to his room where pressure
machine is installed. He denied that he used to prepare Donaas from the
said hand pressure machine appearing in the aforesaid photograph. He
voluntarily deposed that his family used to work over there. He had
admitted that he also used to prepare Donas on the hand pressure machine
sometimes. He further admitted that the three Donaas Ex. WW 1/M5
filed in the record are prepared from the said hand pressure machine. He
denied that he had taken a cheque bearing no. 000075 of Rs. 50,000/-
from the management. He voluntarily deposed that this cheque was given
to him by the management for withdrawal of the money for himself by
mentioning the word Self and he had given the money to the
management. He denied that he had taken loan of Rs. 50,000/- from the
management and that amount has been paid by him to the management.
He denied that at the time of leaving, his salary he had been given a post
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dated cheque bearing no. 000077 dated 03.12.2012 for Rs. 25,000/- as
full and final settlement along iwht salary for the month of November,
2012 of Rs. 8,000/- vide post dated cheque no. 00078 dated 04.12.2012.
Voluntarily he stated that an amount of Rs. 8,000/- has been paid to him
of November salary by the management, however, the amount of Rs.
25,000/- has been given by the management to him for withdrawal of the
amount by mentioning the word 'Self' for himself. He denied that an
amount of Rs. 25,000/- was given to him in lieu of full and final
settlement. He further deposed that his family used to prepare 5000
Donaas in a day. The owner who used to give the goods for preparing
Donaas is Mohd. Jagir. Mohd. Jagir used to give Rs. 5,000/- to Rs.
6,000/- per month for the labour charges to his family. He further deposed
that earlier his children used to run the shop which is abutting to his
house for selling the toffees etc. and that shop is till running. He further
stated that he had not lodged any complaint against the management. He
further admitted that he used to maintain the bank account since 1984. He
further admitted that Sh. Jagdev Sharma along with the management had
come to him at his residence on 15.12.2013. He denied his signature on
the settlement deed dated 03.12.2012. He had installed the Hand Pressure
Machine in 2005. He denied that on 03.12.2012 an amount of Rs.
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25,000/- has been given to him and in total he had received an amount of
Rs. One Lakh and thereafter the document Mark A was prepared. He did
not remember the date when he had signed his affidavit Ex. WW 1/A. He
further denied that in order to carry the business of preparing Donas, he
had abandoned his job voluntarily.
7. Management had examined Sh. Sandeep Chopra as MW 1. He has
reiterated the facts as mentioned by him in his written statement. He has
relied upon the documents Ex. MW 1/1 to Ex. MW 1/5. Ex. WW 1/1 is
the copy of settlement of the account dated 03.12.2012, Ex. MW 1/2 is
the payment of loan of Rs. 50,000/- vide cheque no. 000075 dated
29.11.2012 bearing his signature at point A and signature of the workman
at point B, Ex. MW 1/3 is the copy of legal notice, postal receipt and
returned envelope of the demand notice, Ex. MW 1/4 is the copy of the
cheque of the payment of the loan of Rs. 25,000/- dated 03.12.2012
bearing his signature at point A and signature of the workman at point B
and Ex. MW 1/5 is the copy of the cheque no. 000078 for the payment of
salary of Rs. 8000/- for the month of November, 2012 bearing his
signature at point A and signature of the workman at point B.
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8. This witness was put to the test of cross examination whereby
admitted that no appointment letter was issued to the workman at the time
of his joining and no identity card was ever issued to the workman. He
had no knowledge if any leave book was given to the workman however,
his father is in the business since 2008. No leave book was given to the
workman in his presence by his father. The attendance of the workman
was not marked anywhere. Voluntarily, he stated that the workman was
working with the management on part time basis. He has not mentioned
this fact in his affidavit of evidence. He admitted that the management
does not maintain any attendance register of the workman. Same was his
answer in regard to the wages register. He had not maintained any register
of payment of loan. He admitted the document Ex. MW 1/1 which was
written by him in his own handwriting. Voluntarily he stated that he had
written this letter at the instance of the workman. Nothing has been
written by the workman on this document, except his signature at point A.
He denied that the document does not bear the signature of the workman
at point A. The witness has admitted the Ex. MW 1/2 and Ex. MW 1/4
stating that in both the cheques, the name of any of the person does not
appear in payee column. Voluntarily he stated that cheques were the self
cheques as the Shiv Prasad had urgent requirement of the amount. He
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denied that both the cheques were given to the workman for encashment
from the bank for himself. He denied that whenever the cheques were
given to the workman, the same be given by mentioning his name.
Voluntarily he stated that when the cheques had been given to the Shiv
Prasad, same had been given as 'account payee', however, when the Shiv
Prasad needed money urgent, he had given the self cheques. He had not
mentioned any urgent word in the pleadings. Voluntarily he stated that
workman had to go his native village, therefore the self cheque were
issued at his asking. The workman had not reported for duty after
03.12.2012. However, he could not tell when the workman had to go his
native village for which he had stated that he was in urgent need of
money. He had not filed any recovery case against the workman for
recovery of the alleged loan of Rs. 50,000/-. He voluntarily stated that his
father had sent the legal notice Ex. MW 1/3 to the workman in this
regard. The said notice was never served upon the workman as the same
was returned being incomplete address of the workman i.e., Shiv Prasad
Gutpa S/o Late Sh. Ganesh Prasad Gupta, R/o Raju Garden, Loni no. 2,
near nala, Sunday Bazaar, Loni, District Ghaziabad, UP. He could not tell
if the ESI and PF facility has been given to the workman, however, his
father could tell. He denied that workman has worked with the
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management from 1985 to 04.12.2012 regularly. He admitted that there is
post on which workman was working before 04.12.2012. Voluntarily he
stated that there is another person working there at present. He denied
that his father had given the scrapped item ie., one big iron almirah, one
sofa set, two chairs and one table to the workman. He denied that neither
the workman has a general store nor he has pressure machine for making
different donas. Voluntarily he had filed the photographs which are Ex.
WW 1/M5 collectively in this regard. Witness has admitted the
photograph Ex. MW 1/W1 belongs to his office. He denied that they had
terminated the services of the workman on 04.12.2012 illegally.
Voluntarily he stated that workman himself has abandoned his job on
03.12.2012 after settling his account which is Ex. MW 1/1.
9. Management has examined one more witness MW 2. He deposed
that he knew the workman and the management of M/s Chopra motors
very well. He further deposed that on 15.12.2013, the deponent had gone
to the house of the workman where the workman was working. He further
submitted that the workman had left the service voluntarily with his own
will to boost up his business of his cottage firm i.e., making of various
Donaas by pressure machine.
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10. This witness was put to the test of cross examination whereby he
deposed that he had come to depose before the court at the instance of the
management. He further deposed that he went to the house of Sh. Shiv
Prasad without any reason, however, his sister-in-law resides nearby the
house of Sh. Shiv Prasad, therefore he went there. He was accompanied
with one more person. He denied that they three went to the house of Sh.
Shiv Prasad. He further denied that they had threatened Sh. Shiv Prasad
stating not to initiate any legal proceedings against Chopra. He admitted
that he did the job with Chopra Motors of dye making. He could not say
exactly when workman had worked with the management/ chopra motors
last.
11. On behalf of the workman, his counsel had stated that the
workman/ claimant through its evidence has proved that he was employed
with the management since 1985 as office attendant at the last drawn
salary of Rs. 8,000/- per month. He further deposed that management had
not denied the relationship of employee and employer. Management's
claim is only that he had settled his account and abandoned his job from
04.12.2013. He further stated that documents produced by the
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management is nothing but created the documents because cheques of Rs.
50000/- and Rs. 25,000/- which the management had claimed to have
given to the workman in lieu of the settlement amount did not bear the
name of the workman in payee cheque. Rather, it was mentioned the
word "Self" which has been drawn for himself. While the salary cheque
has been given of his name. He submitted that duration of Ex. MW 1/1
and the amount of cheque given are too short to show that any loan had
ever been advanced. In the letter dated 03.12.2012 Ex. MW 1/1 which has
been mentioned that loan of Rs. 50,000/- have been taken through cheque
bearing no. 000075, while the settlement has been recorded on
03.12.2012 itself and cheque was dated 29.11.2012. Therefore, loan
cannot be given for three days. Moreover, these cheques are drawn from
the amount of which was amount of which was given to the management
after encashment by the workman. He submitted that these documents are
nothing but a created document. He submitted that he has proved his case.
So far so the demand notice is concerned, the date has been wrongly
mentioned as 04.11.2012 instead of 04.12.2012.
12. On the other hand, Ld. Counsel for the management had rebutted
the arguments firstly on the point that on demand notice where the date of
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termination has been mentioned as 04.11.2012 and secondly that he had
argued heavily on the settlement entered between the workman and the
management whereby the workman had agreed to settle his claim for Rs.
75,000/- which was given through two cheques bearing no. 000075 and
000077. He further relied upon the documents Ex. WW 1/5 whereby the
salary of November, 2012 had been given through cheque. He further
submitted that on 04.12.2012, workman had left the services of the
management because he had started his business of making Donas. He
had relied upon various photographs where the workman was showing
the work of making Donas. He further submitted that workman in his
cross examination had admitted he also makes the Donas from his
previous claimant. He submitted that the claim of the claimant is liable to
be dismissed.
13. I have heard the arguments at bar, perused the record of the case
and analysed the evidence brought and examined by the parties and my
issuewise findings are as under:-
14. Issue no. 1:- Whether the workman has completed his 40 days of
continuous service with the management in a calendar year? The onus
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of proving this issue is upon the workman as he has to prove that he has
completed 240 days in a preceding year with the management. Once the
management has admitted that the workman was employed with him,
then it is the management who has to prove that the workman has not
completed 240 days in a preceding year. Management has not brought
any record of absence of the workman in the last preceding year. He had
not brought any attendance register to prove that the workman has not
completed 240 days in a preceding year. Therefore, workman has
succeeded to prove this issue. Hence, this issue goes in favour of the
workman and against the management.
15. Issue no. 2:- Whether the workman resigned from his service of
his own? and Issue no. 3:- Whether the services of the employee has
been illegally terminated without following due process of law? Both
these issues are interlinked issues because the management had taken the
plea that the workman has resigned from the duty after settling his
account as he wanted to do his business, while the workman has to prove
that his services have been terminated illegally by the management. If we
closely scrutinize the evidence of both, the workman and the
management, then it appears that the management had taken two pleas
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and he wants to adjudicate the two pleas in one stroke. He firstly harped
his case upon the fact that the workman has started his own business and
for that he has resigned from the services. So far so, the back wages are
concerned, this issue rests upon the management that workman has
started his business of making Donas, so that he is not entitled to back
wages. So far so, the resignation is concerned, the management has to
prove that the workman himself has resigned after settling his account.
Management relied upon the document Ex. MW 1/1. If we have gone
through the content of Ex. MW 1/1, then it appears that it is nothing but a
created document. Ex. MW 1/1 talks of any loan dated 29.11.2012
through cheque bearing no. 000075 of Rs. 50,000/-, while the document
Ex. MW 1/1 is dated 03.12.2012 in which the workman has expressed his
intention to leave job. Two cheques bearing no. 000075 and 000077 Ex.
MW ½ and Ex. MW ¼ have been prepared by the management for 'Self'.
If the amount have been given under settlement, then the amount shall not
be given for drawing the cheque of 'Self'. Moreover the loan amount is
too short to repay. Moreover the document Ex. MW 1/1 has been
prepared by the management himself and only signature of workman has
been appearing thereon. Therefore, the document cannot be relied upon.
Therefore, the plea of the management falls flat that the workman has
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resigned form his services of his own. Rather it has been proved that the
services of the workman have been terminated illegally because
admittedly, the management has not followed any provision prescribed
under Industrial Disputes Act before retrenching the workman. Hence, the
issue no. 2 stands proved in favour of the workman and against the
management. Consequent thereto, the issue no. 3 also goes in favour of
the workman and against the management.
16. Issue no. 4:- Relief:- Now the question arises as to what relief the
workman is entitled to. Reinstatement to the workman cannot be given as
he himself has admitted himself in the various photographs Ex. WW 1/1
to Ex. WW ¼ whereby he was making Donas, which proves that he is not
unemployed.
17. Considering the length of the service and the fact that the
management has not paid his notice pay, retrenchment compensation and
the pain and agony suffered, this court has considered it fit to grant a
lump sum amount of compensation of Rs. 2,00,000/-. The compensation
shall be in lieu of above said benefit. The aforesaid amount shall be paid
by the Respondent/Management within two months from the date this
LIR No. 431/16, Shiv Prasad Gupta Vs M/s Chopra Motors 04.04.2019 Page No. 18 of 19 Award becomes enforceable, failing which the management shall also pay interest @ 9% per annum on the aforesaid amount from the date of Award till the date of realization.
19. A copy of the award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules. File be consigned to Record Room as per rules.
Digitally
signed by
ATUL ATUL KUMAR
GARG
KUMAR Date:
PRONOUNCED IN OPEN GARG 2019.04.24
12:05:40
COURT ON 04.04.2019 +0530
(ATUL KUMAR GARG)
RESIDING OFFICER
LABOUR COURT-XVI/
SOUTH WEST DISTRICT,
DWARKA COURTS, NEW DELHI.
LIR No. 431/16,
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LIR No. 431/16,
Shiv Prasad Gupta Vs M/s Chopra Motors 04.04.2019 Present: None.
Vide my separate order dictated and announced in the open court, Award is passed accordingly. Copies of award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.
(ATUL KUMAR GARG) RESIDING OFFICER LABOUR COURT-XVI/ SOUTH WEST DISTRICT, DWARKA COURTS, NEW DELHI.
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