Delhi District Court
C/O. Rashtriya General Mazdoor Union ... vs M/S. Gulshan Enterprises on 15 October, 2016
Ajay Singh V/s. M/s. Gulshan Enterprises ID No. 5159/16
BEFORE LABOUR COURT - XI: KARKARDOOMA COURTS: DELHI
PRESIDING OFFICER: Mr. ANAND SWAROOP AGGARWAL
(Delhi Higher Judicial Service)
(Additional District & Sessions Judge, Delhi)
REFERENCE CASE (ID) No. 5159/16
UNIQUE CASE IDENTIFICATION No. 02402C0370682012
In the matter of:
Ajay Singh S/o. Sh. Shankar Singh,
R/o. H.No. WZ/92, Todapur Inderpuri,
New Delhi15.
(Presently R/o. WZ89, Todapur,
Inderpuri, New Delhi
as per evidence of workman recorded on 07.04.2014)
C/o. Rashtriya General Mazdoor Union (Regd),
B239, Karampura, New Delhi110015 ......Workman/Claimant
Vs.
M/s. Gulshan Enterprises,
Roam No402, 25/14, East Patel Nagar,
New Delhi110008. ....... Management
Date of institution : 21.12.2012
Date of reserving for award : 05.10.2016
Date of award : 15.10.2016
AWARD
1.TERMS OF REFERENCE Vide Order No. F3(45)12/Ref./WD/LAB/1909 dated 20.11.2012 Deputy Labour Commissioner (West District), Labour Department, Govt. of N.C.T. of Delhi, Delhi made the following reference under section 10(1)(c) and section 12(5) of the Industrial Disputes Act, 1947 vide Govt. of N. C. T. of Delhi, Labour Department Notification No. F.1/31/616/Estt/2008/7458 dated 3 rd March, 2009 for adjudication by this Court: Page 1 of 17 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/15.10.2016 Ajay Singh V/s. M/s. Gulshan Enterprises ID No. 5159/16 "Whether the services of Sh. Ajay Singh S/o Sh. Shankar Singh Prasad 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. CASE OF THE WORKMEN AS PLEADED IN THE STATEMENT OF CLAIM.
(i) The workman was working with the management since March 2002 on the post of 'Electrician' with his last drawn monthly salary of Rs. 8000/. The management did not issue any appointment letter to the workman at the time of fresh appointment.
(ii) During the course of employment the workman did not give any chance of complaint to the management, so his service record was neat, clean and unblemished.
(iii) The management used to take work for 12 hours per day from the workman but the management did not pay any overtime wages to him. The workman also used to orally demand the legal facilities i.e. appointment letter, attendance card, to maintain all record, overtime wages, leave encashment, HRA, DA, TA, ESI, bonus, leave wages etc. from the management but the management did not provide the same to him.
(iv) The management started to get rid off the workman but failed. Then on 17.09.2011 the management illegally terminated the services of workman without any rhyme or reason, without conducting any enquiry, without issuing any notice, without paying the earned wages for the month of August and 16 days of September 2011 and without paying any service compensation in violation of provisions of section 25 F and G of the Industrial Disputes Act, 1947.
(v) The management had taken the signature of the workman on various blank papers and vouchers at the time of joining the service as well as during the service period. The workman had put the signature on the same as he was very badly in need of job/employment as well as in good faith of management. All the Page 2 of 17 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/15.10.2016 Ajay Singh V/s. M/s. Gulshan Enterprises ID No. 5159/16 documents are in the possession of management and there is each and every apprehension of misuse of these documents by the management at any stage.
(vi) On 30.10.2011 the workman through union sent the demand notice through speed post to the management. The demand notice was duly served upon the management but management neither replied nor reinstated the workman on the same post.
(vii) The workman filed complaint before the Assist. Labour Commissioner, Karampura, Delhi and on this complaint the Labour Inspector had visited the establishment of management alongwith workman. Labour Inspector met the management and advised the management to take the workman back on duty on the same post and to pay the earned wages for the month of August and 16 days of September 2011 but the management did not fulfill the advice of Labour Inspector.
(viii) The workman filed the statement of claim before the Asstt. Labour Commissioner, Karampura, Delhi but management did not appear before the Asstt. Labour Commissioner. Hence this reference.
(ix) Since the date of illegal termination of his service the workman regularly visited at the establishment of management and he requested the management to reinstate him on the same post but the management did not reinstate him.
(x) The workman searched for the job at many places but he did not find any work, so he is unemployed since the date of illegal termination and he wants to join duty with the management on the same post with full back wages.
With these averments the workman prayed for passing an award of reinstatement in service with full back wages and all attendant consequential benefits in favour of the workman and against the management and, further, to pass an order of earned wages for the month of August and 16 days of September 2011 in favour of workman and against the management.
3. STAND TAKEN BY MANAGEMENT IN THE WRITTEN STATEMENT OF DEFENCE.
Page 3 of 17 (ANAND SWAROOP AGGARWAL)POLC- XI/KKD/DELHI/15.10.2016 Ajay Singh V/s. M/s. Gulshan Enterprises ID No. 5159/16 Management in the written statement of defence, while denying in toto the case as pleaded by workman in the statement of claim, pleaded that relationship of employer and employee never existed between the management and the claimant/workman. Management pleaded that it is a proprietorship firm owned and run by Mr. C.B.Khatri from the address as mentioned in the statement of claim. Mr. C.B.Khatri is a small electrician who takes jobwork of fitting, fixing and repairing of electrical wires, switches, bulbs, fans, generators etc. in the house as well as commercial places. Mr. C.B.Khatri takes the jobwork from different places in name of his proprietorship firm for smooth running of his work and does the same. Whenever he has quite sufficient job work which he alone is unable to do, then, he takes the help of freelance electrician to complete the job work. Management further submitted that prior to engagement of any such freelance electrician, a fixed remuneration for the particular jobwork is agreed to be paid by Mr. C.B.Khatri and after completion of particular jobwork at particular sites Mr. C.B.Khatri pays the remuneration of freelance electrician, however, there does not exist any employee and employer relationship between such freelance electrician and Mr. C.B.Khatri.
Management also submitted that there are several freelance electricians in locality who do their own work and also work for management in need for which they have been paid a fixed remuneration for each and every jobwork as per volume of work. Workman/Claimant has been working as freelance electricians in several localities who was introduced to the management by Mr. Ravinder in the year 2005. On request of said Mr. Ravinder, the management agreed to give certain work to the claimant in need. The management has given particular jobwork to the claimant two-three times till date at different time, month and year and he has been paid for his specific job work through cheque. The jobwork of the alleged workman was not satisfactory due to which management had to do the said work afresh. Hence the management stopped giving him any jobwork thereafter. Apart from this the management has no relation with the management in any way.
Page 4 of 17 (ANAND SWAROOP AGGARWAL)POLC- XI/KKD/DELHI/15.10.2016 Ajay Singh V/s. M/s. Gulshan Enterprises ID No. 5159/16 Management denied the service of demand notice upon it. Management also pleaded that alleged workman is a freelance electrician and still doing his job work of electrician at different places. At last management prayed for dismissal of statement of claim filed by workman with exemplary costs in favour of management.
4. REJOINDER Despite opportunity given, workman did not file rejoinder to the WS of management.
5. ISSUES Vide order dated 28.05.2013, following issues were framed:
1) Whether there existed any relationship in the nature of 'an employer and an employee' between the Management and the workman? OPW/OPM.
2) As per terms of reference.
3) Relief, if any. 6. EVIDENCE
Workman appeared in witness box as WW1 Mr. Ajay Sharma.
Workman relied upon documents namely Ex. WW1/1 Complaint dated 26.09.2011 addressed to Asst. Labour Commissioner; Ex. WW1/2 Demand Notice dated 30.10.2011; Ex. WW1/3 Postal Receipt dated 31.10.2011; Ex. WW1/4 Statement of claim filed before Conciliation Officer; Ex. WW1/5 (OSR) LIC Policy/Bond and Ex. WW1/6 (OSR) Bond Paper of Bajaj Allianz Insurance Co. Ltd. Exhibition of all the documents was objected to by ld. counsel for management as to mode of proof. In his crossexamination workman was confronted with Ex. WW1/M1X (also exhibited as Ex. MW1/1) Statement of Account for the period of 01.09.2011 to 18.10.2011 of the management.
Workman also examined WW2 Mr. Jitender Kumar, Assistant, LIC Branch Unit Branch who produced Ex. WW2/1 (Colly. 12 pages) Documents Page 5 of 17 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/15.10.2016 Ajay Singh V/s. M/s. Gulshan Enterprises ID No. 5159/16 regarding Ex. WW1/5. WE was closed by ld. counsel for workman on 25.07.2014.
Proprietor of management examined himself as MW1 Mr.C.B.Khatri and tendered his examinationinchief vide evidence affidavit Ex. MW1/A and relied upon document namely Ex. MW1/1 (also exhibited as Ex. WW11/M1x) Statement of Account for the period of 01.09.2011 to 18.10.2011 of the management.
In the course of his crossexamination MW1 Mr. C.B.Khatri was directed to produce income tax returns for last 7/8 years and he produced the same on 01.06.2016 as Mark MW1/XM1. Vide order dated 08.07.2016 ld. counsel for management filed certain original documents stating the same to be original(s) of documents marked as MW1/XM1. ME was closed on 01.06.2016.
7. APPLICATION OF THE WORKMAN TO GIVE DIRECTIONS TO THE MANAGEMENT TO PRODUCE THE DOCUMENTS.
On 12.08.2013, workman moved an application for giving directions to the management to produce the documents namely (a) Muster Roll, Wages Register, ESI Register, PF Register, Leave Register, Gate Entry Register of Employees w.e.f., March 2002 to Sept. 2011; (b) Appointment Letter issued Register of management w.e.f., March 2002 to Sept. 2011; and (c) ESI and PF Record of Employees w.e.f., March 2002 to Sept. 2011. Management contested this application by filing reply on 29.10.2013. On 12.03.2014 arguments were heard on this application and it was ordered that in the facts and circumstances of this case application be kept pending to be disposed of after both the parties lead evidence which is within their reach. However, vide order dated 08.07.2016 ld. counsel for the workman submitted that this application may be disposed of as not pressed. Accordingly, this application was disposed of as not pressed.
8. ARGUMENTS I have heard Mr. Ajit Singh Ld. Counsel for the workman and Mr. Prem Page 6 of 17 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/15.10.2016 Ajay Singh V/s. M/s. Gulshan Enterprises ID No. 5159/16 B. Kshetri Ld. Counsel for the management, and perused the material available on judicial file very carefully.
9. APPLICATION OF WORKMAN FOR PERMISSION TO LEAD ADDITIONAL EVIDENCE:
On 20.07.2016 workman moved an application seeking permission to lead additional evidence. Management contested this application by filing reply. Vide separate detailed order dated 29.09.2016 this application was dismissed.
10. MY ISSUEWISE FINDINGS ARE AS UNDER: ISSUE No. 1 ''Whether there existed any relationship in the nature of 'an employer and an employee' between the Management and the workman? OPW/OPM'' HERE, as per workman/claimant, he was working with management as Electrician' since March 2002 and management illegally terminated his services on 17.09.2011 in violation of provisions of Section 25 F and 25 G of the Industrial Disputes Act, 1947. As per workman/claimant management did not, despite oral demands, provide him legal facilities such as appointment letter, attendance card, overtime wages, leave encashment, HRA, DA, TA, ESI, bonus, leave wages and also did not maintain records.
ON THE OTHER HAND, as per management, employer and employee relationship never existed between the management and the claimant/workman. As alleged by management, management is a proprietorship firm owned/run by Mr. C.B.Khatri who is a small electrician and who takes jobwork of fitting, fixing and repairing of electrical wires, switches, bulbs, fans, generators etc. in house as well as commercial places and does the same. As alleged, as and when Mr. C.B.Khatri has quite sufficient jobwork which he alone is unable to do, then, he takes help of freelance electricians to complete the jobwork. Prior to engagement of any such freelance electrician, allegedly, a fixed remuneration for the particular jobwork is agreed to be paid by Mr. C.B.Khatri and after completion of the particular jobwork at particular sites Mr. C.B.Khatri pays Page 7 of 17 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/15.10.2016 Ajay Singh V/s. M/s. Gulshan Enterprises ID No. 5159/16 the remuneration of freelance electrician. There does not exist, as alleged, any employee and employer relationship between such freelance electrician and Mr. C.B.Khatri. Management further pleaded that workman/claimant has been working as freelance electrician in several localities who was introduced to the management by Mr. Ravinder in the year 2005. On the request of said Mr. Ravinder, the management agreed to give certain work to claimant in need. The management has given particular job work to the claimant two-three times till date at different time, month and year and he has been paid for his specific jobwork through cheque.
Further management pleaded that jobwork of the claimant was not satisfactory due to which management had to do the said work afresh and, hence, management stopped giving him any jobwork thereafter.
At the outset, it is observed that no case for violation of provisions of Section 25 G of Industrial Disputes Act, 1947 is made out for want of bare minimum averments/depositions in the statement of claim/evidence affidavit of workman required for attracting this provision of law. Merely pleading in the statement of claim regarding violation of a statutory provision does not serve any purpose unless and until requisite factual averments are there in the statement of claim so as to atleast prima facie to show that such statutory provision is applicable to the case in hand. Also this court cannot pass an order for earned wages for the months of August and 16 days of September, 2011 inasmuch as by making an attempt to do so this court shall be exceeding the terms of reference which is not permissible as per law. This court is bound to restrict its adjudication only to the terms of reference or matter incidental thereto. Issue as to earned wages is not within the terms of reference not the same cannot be said to be incidental to the terms of reference.
NOW undoubtedly initial onus is on the workman to prove his case as pleaded by him in the statement of claim. Workman is supposed to discharge this onus on the basis of principle of preponderance of probabilities. No straight Page 8 of 17 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/15.10.2016 Ajay Singh V/s. M/s. Gulshan Enterprises ID No. 5159/16 jacket formula exists to determine as to whether workman has been able to discharge this initial onus or not and each case deserves to be considered/decided on the basis of peculiar facts and circumstances of each case as emerging out on the basis of entire material available on judicial file. It is the duty of the court to scrutinize the facts from all angles to come to a conclusion as to whether the pleas advanced by the workman or the management are worth reliance by the court, while the court acting as a reasonably prudent person, keeping in view the totality of facts and circumstances of the case by particularly keeping in mind as to whether the workman or the management has been able to prove/substantiate the case as pleaded in the statement of claim/written statement of defence by leading cogent and convincing evidence. While appreciating the evidence led by the parties, court is bound to keep in mind that neither party can be expected to lead the evidence which such party, quite possibly in a given factual situation, cannot lead on judicial record. Nobody can be compelled to do a thing which he/she cannot possibly do in a given factual situation. The principle ''justice to the cause is equivalent to the salt of ocean'' should be kept in mind. The Court of law is bound to uphold the truth which sparkles when justice is done.
In the case in hand, in view of pleadings of the workman and also in view of the stand of the management on account of suggestions given to workman/WW1 Ajay Singh in his crossexamination to the effect that, ''...... It is correct to suggest that Mr C B Khatri works himself and does not employs any employee. Again said about 10 / 12 employees are employed by Mr. C B Khatri. Mr. C B Khatri himself does not do work of an electrician.
It is wrong to suggest that as Mr C B Khatri works himself and does not employs any employee there is no need for him to maintain muster roll, wages register, ESI register, PF register, leave register, gate entry register of employees and appointment letters etc. It is wrong to suggest that I am deposing falsely.'', workman cannot be expected to lead direct evidence such as appointment letter, Page 9 of 17 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/15.10.2016 Ajay Singh V/s. M/s. Gulshan Enterprises ID No. 5159/16 proof of payment of salary by the management etc., to show that workman was an employee of the management. Also in view of abovereferred suggestions workman cannot be expected to examine any other coemployee inasmuch as there is no admission on the part of the management regarding management employing any coemployee. Even if workman might have examined any of 10/12 employees allegedly employed, as per workman, by the management the same would not have served any purpose inasmuch as even the such coemployee, if any examined, would not have been able to produce any documentary/direct proof regarding his employment by the management in view of the stand taken by the management. Workman in his crossexamination has been made to depose that, ''........It is correct that I have not filed any document on record to show that I was getting Rs. 8000/ p.m as salary from the management. (Vol. the management did not issue any pay slip).....''. Obviously, workman cannot be asked to produce pay slip unless and until management provided the same to the workman.
Although workman has not filed on record any direct evidence regarding his employment an employee by the management but workman is relying upon documents Ex. WW1/5, Ex. WW1/6 and documents Ex. WW2/1 (Colly. 12 pages). On page no. 7 of Ex. WW2/1 (Colly. 12 pages) which is PROPOSAL FOR INSURANCE ON OWN LIFE mentions the name of management i.e. Gulshan Enterprises under the column 4B: Name of present employer and Length of service with him has been mentioned as 4 years. This proposal is dated 02.09.2006. It is alright that this document cannot be accepted as a foolproof document of employment of the workman by the management as its employee but contents of this document in a way corroborate the case of the workman to the effect that he was employed by the management as its employee as 'Electrician' since the year 2002. As on 02.09.2006 workman and the management were not at all having any grievances against each other. The dispute arose between the management and the workman only after alleged termination of services of the workman by the Page 10 of 17 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/15.10.2016 Ajay Singh V/s. M/s. Gulshan Enterprises ID No. 5159/16 management on 17.09.2011 and, as such, there could have been no reason for the workman to falsely prepare the document at page no. 7 of Ex. WW2/1 (Colly. 12 pages) in advance on 02.09.2006 in contemplation/anticipation of dispute arising on 17.09.2011. Name and address of the management is also mentioned in document Ex. WW1/6, which is Personal Accident Insurance Policy in the name of workman Ajay Singh as Proposer/Member for the period from 24.09.2005 to 23.05.2006, as against the column of Address of the Proposer/Member. There is no dispute as to the existence of management as such in the years 2005 or 2006 inasmuch as MW1 Mr. C.B.Khatri in his crossexamination on 23.10.2015 deposed that, ''I do not remember the year when I establish the management , however, it must have been 12 years ago.....''. Further, as alleged by management itself in the WS, workman stood introduced to the management in the year 2005. Workman in his crossexamination has denied all the suggestions given to him in his cross examination to support the stand as taken by the management in the WS by making the following depositions: ''It is wrong to suggest that I have not filed any document on record to show that I was working with the management. It is correct that I have not filed any document on record to show that I was getting Rs.8000/ pm as salary from the management. (Vol .the management did not issue any pay slip). It is wrong to suggest that the LIC and Bajaj Allianz papers / bond do not prove the relationship with management as an employee. It is wrong to suggest that these documents do not prove that I was working with the management. It is wrong to suggest that the management or Mr. C B Khatri has never given any permission to give his address to you for giving the same to LIC or Bajaj Allianz as address proof. It is further wrong to suggest that I myself has given this address to LIC or Bajaj Allianz as my address proof. It is wrong to suggest that these documents Ex.WW1/5 and Ex.WW1/6 are tampered and fabricated because document of address proof has been not given by the management to me. LIC policy Ex.WW1/5 is still subsisting. The policy still contains the address of the management. Ex.WW1/6 Bajaj Allianz policy has expired.....''.
As per management, workman was introduced to the management by Mr. Ravinder and on the request of said Mr. Ravinder management had agreed Page 11 of 17 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/15.10.2016 Ajay Singh V/s. M/s. Gulshan Enterprises ID No. 5159/16 to give certain jobwork to the claimant in need. In view of these specific pleadings by the management in the WS, it was for the management to examine the said Mr. Ravinder as its witness to prove the abovesaid stand. But management has not done so. Need for examination of Mr. Ravinder Singh by the management as its witness had also arisen in view of depositions made by workman in his cross- examination to the effect that, ''....It is wrong to suggest that Mr. Ravinder Singh introduced me to Mr. C.B.Khatri in the year 2005....''. Merely because workman in his cross-examination deposed that, ''.....I know Mr. Ravinder Singh who is my friend.....'' did not make it necessary for the workman to examine Mr. Ravinder Singh as its witness inasmuch as in the entire statement of claim there is no mention of said Mr. Ravinder Singh by the workman. Further need for examination of said Mr. Ravinder Singh by the management to prove the stand as pleaded in the WS had also arisen inasmuch as workman in his cross-examination was made to depose that, ''....It is wrong to suggest that Mr Ravinder Singh also did job work some times at the instance of Mr C B Khatri. It is wrong to suggest that Mr. Mr C B Khatri did job work sometimes at the instance of Mr. Ravinder Singh....''. Further management has not examined any of the freelancer whom management employed in terms of the WS. The depositions made by MW1 Mr. C.B.Khatri to the effect that, ''......I do not remember the exact date/month/year but I had given works to Mr. Ajay Singh in the year 2008/2009/2010...'', are not at all consistent with the stand taken by the management in the WS regarding introduction of workman to the management by Mr. Ravinder Singh in the year 2005 and management agreeing to provide certain work to workman on the request of Mr. Ravinder Singh inasmuch as it appears against all normal human behaviour that after introduction in the year 2005 management would have happened to provide work to the workman in the years 2008/2009/2010 as deposed by MW1 Mr. C.B.Khatri in his depositions.
ALSO, as per management, management had given particular jobwork to the claimant two-three times till date at different time, month and year Page 12 of 17 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/15.10.2016 Ajay Singh V/s. M/s. Gulshan Enterprises ID No. 5159/16 and he has been paid for his specific jobwork through cheque. Management has not brought on record specific details of abovesaid jobwork as regards works allegedly done by the workman or the date, month and year or period during which workman allegedly performed the said jobworks as alleged by management. Also in his cross-examination workman was confronted with only one cheque entry in Ex. WW1/M1X (also Ex. MW1/1). If the case of the management would have been true, workman deserved to be confronted 2/3 such cheque entries and not one only. Further management has pleaded that jobwork of the workman was not satisfactory due to which workman had to do the said work afresh. Keeping in view the normal human behaviour, it appears quite improbable that if anybody is not performing work satisfactorily to the extent that work was required to be done afresh, the possibility of such person doing the work afresh engaging such a person not performing work satisfactorily again is the least and, thus, stand of the management that workman was employed for two-three times for doing jobworks is not worth believing by the Court. FURTHER, in the WS management pleaded that freelance electricians including the workman herein were paid fixed remuneration for each and every jobwork but in his cross-examination MW1 Mr. C.B.Khatri repeatedly deposed that such alleged freelance electricians were paid on commission basis. There is difference in making payment of fixed remuneration and payment on commission basis. Further management has not produced any records to support the stand taken by the management in the WS regarding it employing freelance electricians.
Workman in the statement of claim pleaded about the complaint made to Asst. Labour Commissioner and visit of the Labour Inspector to the establishment of the management on this complaint. Management in the WS denied those averments but MW1 in his cross-examination deposed that, ''.....It is correct to suggest that workman had made a complaint dated 26.09.2011 to the Asst. Labour Commissioner and pursuant to said complaint Mr. Vakul Kumar, Labour Inspector visited the establishment of management. I did Page 13 of 17 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/15.10.2016 Ajay Singh V/s. M/s. Gulshan Enterprises ID No. 5159/16 not show any record regarding Mr. Ajay Singh to Mr. Vakul Kumar, Labour Inspector. (vol. There was no such record which could have been shown). I did not give written reply to Mr. Vakul Kumar, Labour Inspector....''. Court has perused the Balance Sheets, Profit and Loss Accounts filed by the management alongwith Income Tax Return filed in original by the management on 08.07.2016 and seen the numerical figures therein such as Rs. 12,16,682/, (Balance Sheet as on 31.03.2009), Rs. 36,41,817/ (Profit and Loss Account for the year ended 31.03.2009), Rs. 27,48,640/ (Balance Sheet as on 31.03.2013), Rs. 56,68,385/ (Profit and Loss Account for the year ended 31.03.2013), Rs. 11,71,422/ (Balance Sheet as on 31.03.2010), Rs. 39,34,431/ (Profit and Loss Account for the year ended 31.03.2010), Rs. 19,54,275/ (Balance Sheet as on 31.03.2012) and Rs. 49,32,637/ (Profit and Loss Account for the year ended 31.03.2012) and in view of this figure it cannot be said that management is a small electrician as pleaded in the WS.
In view of above detailed discussion, it can be said that case as pleaded by management in the WS is not worthreliance from judicial mind. It is alright that workman is to stand on his own legs to prove his case on judicial record but workman, as already discussed hereinabove, cannot be expected to do something (i.e. to lead direct evidence regarding his employment as an employee by the management) which he possibly cannot do in the totality of facts and circumstances of this case. When the workman has done whatever he could have done in the facts and circumstances of this case, failure on the part of management to prove the case as pleaded by it in WS on judicial record by recording cogent and convincing evidence makes this court to believe the case as pleaded/deposed by workman in statement of Page 14 of 17 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/15.10.2016 Ajay Singh V/s. M/s. Gulshan Enterprises ID No. 5159/16 claim/evidence affidavit to be more probable and worthreliance by the Court rather than the one as pleaded/deposed by management. Thus, issue in hand is decided in favour of the workman and against the management.
Issue No. 2As per terms of reference.
(''Whether the services of Sh. Ajay Singh S/o Sh. Shankar Singh Prasad 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?'') Issue No. 1 has already been decided in favour of the workman. Here management denied the existence of relationship of employer and employee between the management and the workman, thus, there was no question/possibility of management complying with the provisions of Section 25 F of the Industrial Disputes Act, 1947 qua the workman. Therefore, obvious conclusion is that management terminated the services of workman as pleaded by workman in violation of provisions of Section 25 F of the Industrial Disputes Act, 1947 inasmuch as keeping in view the stand by the management in the WS, which has been found to be not reliance by the court, there was no question of management even pleading regarding compliance of provision of Section 25 F of the Industrial Disputes Act, 1947. Hence, it is observed that management terminated the services of workman illegally in violation of provisions of Section 25 F of the Industrial Disputes Act, 1947.
NOW merely because management terminated the services of workman illegally/unjustifiably in violation of provisions of section 25 F of the Industrial Disputes Act, 1947 does not mean that workman is automatically entitled to be reinstated in service with management with full back wages. Whether the workman is entitled to be reinstated in service or not depends on the totality of the facts and circumstances of each case at the discretion of the court. Here keeping in view the issues raised herein between the parties and the fact that management is a Page 15 of 17 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/15.10.2016 Ajay Singh V/s. M/s. Gulshan Enterprises ID No. 5159/16 sole proprietorship concern, order of reinstatement of workman in service with the management may not result in cordial industrial relations. Thus, workman is held to be not entitled to reinstatement in service.
In this case workman in the statement of claim has alleged that he searched for the job at many places but he did not find any work, so he is unemployed since the date of illegal termination. Except bare averments/depositions nothing has been brought on record by the workman to show that he made serious sincere efforts for getting alternative service/work. To be entitled to get full back wages workman is bound to establish on judicial record that workman is unemployed/not earning anything despite serious sincere efforts made by the workman in that regard. Workman in the statement of claim/evidence affidavit has not explained as to how he has been maintaining himself/his family since after 17.09.2011 if he is unemployed. Workman in his crossexamination deposed that, ''....I am Electrician but still I am unemployed. I pay the premium amount Rs.749/ quarterly of said LIC policy. I paid last premium amount in the month of March 2014. The said premium was deposited by my brother on behalf of myself.
I have two children aged about 7 years and 3 years who are residing at my native village i.e. Village Najra Pur, Distt. Kannoj, UP. My elder son is studying in govt. school. My wife is employed in beauty parlour at native village. She draws salary at about Rs.800/ 900/ pm. She meet out the house hold expenses from her salary. The house no. WZ92, Toda Pur, Inder Puri, New Delhi is owned by Sh. Mahender Yadav. I was tenant in the said house. Now I had vacated the same premises in the month of December 2013. Presently I am residing with my brother at WZ89, Toda Pur, Delhi which is owned by Mr. Satbir Yadav. Mr. Satbir Yadav and Mahender Yadav are not related with each other. The rent of said premises was Rs.1500/ pm. I used to pay the said rent to the landlord. (Vol my brotherinlaw (Jijaji Mr. Robin Singh Chauhan) used to pay the same and bears my entire expenses. I have come today on foot from Inder Puri, Delhi....''.
Page 16 of 17 (ANAND SWAROOP AGGARWAL)POLC- XI/KKD/DELHI/15.10.2016 Ajay Singh V/s. M/s. Gulshan Enterprises ID No. 5159/16 But workman has not examined his brother, brother-in-law Mr. Robin Singh Chauhan and his wife so as to make above-referred depositions worth reliance by the court. Workman is an experienced electrician. In a city like Delhi, there are various job opportunities for the persons like workman herein and, thus, it is hard to believe that workman is unemployed/not earning anything since the date of termination of his services throughout till today. Hence, workman is not entitled to full back wages. But obviously workman must have suffered financial prejudices on account of illegal termination of his services by the management.
In my considered opinion, in the totality of facts and circumstances of this case, grant of lumpsum compensation to the tune of Rs. 1,30,000/ (Rupees One Lac Thirty Thousand Only) to the workman on account of illegal termination of his services by the management / in lieu of reinstatement / back wages would meet the ends of justice. If this amount of Rs. 1,30,000/ (Rupees One Lac Thirty Thousand Only) is not paid to the workman within one month of award coming into force management shall be liable to pay interest @ 9% per annum on this amount from the date of the award till its payment. A sum of Rs. 20,000/ (Rupees Twenty Thousand only) is also awarded to the workman as costs of litigation payable by the management. Issue No. 2 is decided accordingly.
Issue No. 3: Relief, if any.
As above.
11. Reference is answered accordingly.
12. A copy of the award be sent of Office of the concerned Deputy Labour Commissioner for further necessary action.
13. File be consigned to Record Room after completing due formalities. PRONOUNCED IN THE OPEN COURT ON 15.10.2016.
(ANAND SWAROOP AGGARWAL) POLCXI, Karkardooma Courts, Delhi+ Page 17 of 17 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/15.10.2016