Delhi District Court
Sh. Sunil vs M/S Ravi Knit Wears on 16 March, 2012
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER LABOUR COURT
KARKARDOOMA COURTS, DELHI.
DATE OF AWARD : 17.03.2012
IN THE MATTER BETWEEN:
DID NO.188/11 (Date of Institution : 04.01.2008)
Sh. Sunil, S/o. Dharam Pal
R/o T724, Faiz Road, Karol Bagh,
New Delhi05
........Workman
VERSUS
M/s Ravi Knit Wears ,
A69, PhaseII Mangolpuri, Industrial Area,
Delhi34.
& also At
2131/59, Nai Wala, Gurudwara Raod,
Karol Bagh, New Delhi.
.......Management
DID NO.187/11 (Date of Institution : 04.01.2008)
Sh. Neelam Rana, W/o. Sanjay Rana
R/o B38, Begum Vihar,
Begum Pur, Delhi
.........workman
VERSUS
Workmen Vs. M/s. Ravi Knit Wears Page No. 1 out of 21
M/s Ravi Knit Wears ,
A69, PhaseII Mangolpuri, Industrial Area,
Delhi34.
& also At
2131/59, Nai Wala, Gurudwara Raod,
Karol Bagh, New Delhi.
........management
DID NO.189/11(Date of Institution : 04.01.2008)
Sh. Sanjay Rana, S/o. Late Sh. Bijendra Rana
R/o B38, Begum Vihar,
Begum Pur, Delhi.
.........workman
VERSUS
M/s Ravi Knit Wears ,
A69, PhaseII Mangolpuri, Industrial Area,
Delhi34.
& also At.
2131/59, Nai Wala
Gurudwara Raod, Karol Bagh,
New Delhi.
........management
DID NO.124/11 (Date of Institution : 04.01.2008)
Sh. Anil Kumar, S/o. Sh. Brij Raj
R/o B444, Mangol Puri,
Delhi .........workman
VERSUS
Workmen Vs. M/s. Ravi Knit Wears Page No. 2 out of 21
M/s Ravi Knit Wears ,
A69, PhaseII Mangolpuri, Industrial Area,
Delhi34.
& also At.
2131/59, Nai Wala, Gurudwara Raod,
Karol Bagh, New Delhi.
........management
DID NO.193/11 (Date of Institution : 04.01.2008)
Sh. Lala Ram, S/o. Sh. Ram Roop
R/o. 10675, Pratap Nagar,
Gali No.8, Delhi 07
.........workman
VERSUS
M/s Ravi Knit Wears ,
A69, PhaseII Mangolpuri, Industrial Area,
Delhi34.
& also At
2131/59, Nai Wala, Gurudwara Raod,
Karol Bagh, New Delhi.
........management
DID NO.195/11(Date of Institution : 04.01.2008)
Sh. Ishaq Ahmad, S/o. Sh. Bashir Ahmad
R/o. B444, Mangol Puri,
Delhi.
.........workman
VERSUS
M/s Ravi Knit Wears ,
Workmen Vs. M/s. Ravi Knit Wears Page No. 3 out of 21
A69, PhaseII Mangolpuri, Industrial Area,
Delhi34.
& also At
2131/59, Nai Wala, Gurudwara Raod,
Karol Bagh, New Delhi.
........management
DID NO. 55/11(Date of Institution : 01.09.2007)
Sh. Shabbir Ahmad, S/o. Mohd. Rehmat Ali
R/o. E 3/27, 28 Sultan Puri,
New Delhi.
.........workman
VERSUS
M/s Ravi Knit Wears ,
A69, PhaseII Mangolpuri, Industrial Area,
Delhi34.
& also At
2131/59, Nai Wala, Gurudwara Raod,
Karol Bagh, New Delhi.
........management
DID NO. 121/11(Date of Institution : 02.05.2008)
Sh. Ram Adhar Sahani S/o. Lt. Sh. Ram Bachan,
R/o. H.No. 336, Parkash Vihar, Ward No. 28,
Gali No. 4, Loni Ghaziabad, UP.
.........workman
VERSUS
M/s Ravi Knit Wears ,
A69, PhaseII Mangolpuri, Industrial Area,
Workmen Vs. M/s. Ravi Knit Wears Page No. 4 out of 21
Delhi34.
& also At
2131/59, Nai Wala, Gurudwara Raod,
Karol Bagh, New Delhi.
........management
A W A R D
1. By this common award I shall dispose off the cases
DID No.188/11 Sunil S/o Dharampal, DID No.187/11 Nelam Rana
W/o Sanjay Rana, DID No.195/11, Ishaq Ahmad S/o Bashir Ahmad,
DID No. 124/11 Anil Kumar S/o Brij Raj, DID No.193/11 Lal Ram
S/o Ram Roop, DID No.189/11 Sanjay Rana S/o Sh. Birender Rana
having based on the common question of law and common question
of facts except the designations, salary and tenure of service of the
claimants with management.
2. The common questions of facts are that the claimants
were working with the management on a different capacity like
Tailor etc. as skilled or semi skilled worker from the last several
years at the monthly salary of Rs. 4,000/ besides other service
benefits. The management was running factory/industry of exports
and imports in the name and style of M/s. Ravi Knit Wears at A69,
Mangolpuri, Industrial Area, Delhi.
Workmen Vs. M/s. Ravi Knit Wears Page No. 5 out of 21
3. The work and conduct of claimants through out was
good and they were doing their duty honestly, sincerely and never
cause any type of loss to the management. Though the management
violated the various provision of Labour Welfair laws as overtime,
weekly off, benefits of ESI & PF were not given for which the
claimants/workman raised the demand before the management at
various occasions. The complaint were made through Labour Union
before Labour Department. On the said complaint, the labour
inspector visited to the management establishment on 10.04.07 &
05.06.07 and found so many violations of labour welfare provisions
like bonus, register of attendance, salary registers were not
maintained. Since the date of inspection of the factory by Labour
Inspector, the management became annoyed and started using
abusive language and rude behaviour with the ulterior motive to
terminate the services. The management after the day of inspection
obtained the signatures of the claimants on record of PF by
misguided them. The workman put their signatures on blank papers
which is still in possession of the management.
4. It is further submitted that on 26.09.07 at about 11.A.M
the claimant/workman were on duty, the management alongwith Sh.
Sunil Budhiraja and Manager Bhura called the claimant's in first
Workmen Vs. M/s. Ravi Knit Wears Page No. 6 out of 21
hall and started shouting with rude language and asked the
workmen to leave the premises immediately and also threatened that
from this time, the management is not required and no need to come
again for the work. If the workman complaint against the
management then they will face the dire consequences. In this way,
the management has terminated the services of the
claimants/workmen illegally and forcibly. Since the date of
termination the claimants are jobless and sufferings with mental
and physical agony. The claimants could not get all benefits like
bonus, ESI, P.F. Yearly increments from the management which is
legal obligations as required to comply the provisions of labour law
and specifically under the provisions of Industrial Disputes Act,
1947. The claimant is under the apprehension that the management
deducted the amount from his salaries, regarding P.F. and ESI
funds which are in total risks. The service of the claimants have
been terminated by the management in illegal manner by violating
the provisions of Industrial Disputes Act. The conduct of the
management attracts the Industrial Disputes. The claimants are
entitled to get all salaries of termination period and all previous
benefits.
5. It is further submitted by the workmen/claimants that
Workmen Vs. M/s. Ravi Knit Wears Page No. 7 out of 21
they sent a legal notice to the management for restoration in service
alongwith back wages and continuity of service. The said notice
was duly served upon the management but the management did not
accepted the request and the reply of the notice has been received
on 09.02.07.
6. The notice of the claim was issued to the management
and the management filed the reply/written statement to the claims
with the contention that the workman concerned were appointed by
the management on the post and salary as mentioned in the claim.
The claimants were appointed as "Unskilled" (Helper) worker on
last drawn wages of Rs.3940/ per month, the claims of the
workmen are totally false, frivolous and concocted as such the claim
is not maintainable in the eyes of law nor they have come to the
court with clean hands. The concerned workmen/claimants were
absented from duty without any intimation or without any
sanctioned leave. They did not join the duty though they were
present in the factory and alleged that they were not interested to
work with the management and requested for clear their dues. The
management on the same day cleared their dues and in this regard
the workman executed receipt of full and final settlement. The
workman has not worked for 240 days in a year with the
Workmen Vs. M/s. Ravi Knit Wears Page No. 8 out of 21
management so that Industrial Dispute is not maintainable. The
workman concerned has also taken their dues as such not entitled to
the relief claimed.
7 Rejoinder/replication to the written statement filed by
the workman/claimant and reagitating the contentions raised in the
statement of claim as well as deny the averments made in the
written statement filed by the management with the submission that
the workman has worked more than 240 days in a year and hence
come under the purview of the definition of the Workman U/ S2
(S) of the Industrial Dispute Act and therefore, have right to raise
Industrial Dispute against the management/respondent. The fact to
this effect has also been mentioned by the Labour Inspector in his report dt.05.06.07 as Annexured. The workman raised a demand of their legal rights like bonus, ESI, P.F., Annual Increment with the management and the management illegally and/or unjustifiably terminated the services of the workmen as such filed the present claims.
8 From the pleading of the parties in DIDs No. 188/11, 187/11, 189/11, 124/11, 193/11, 195/11, 55/11, and 121/11, the following issues were framed:
(i) Whether the workman has worked for 240 days in a Workmen Vs. M/s. Ravi Knit Wears Page No. 9 out of 21 calender year before his alleged termination?
(ii) Whether the workman had left the job after taking his dues up to 11.06.2007? (in DID no. 187/11, 121/11 and 189/11) and in DID no. 193/11 :
(ii) Whether the workman had left the job after taking his dues or Whether the workman started absenting himself from duty after 25.09.2007?(in DID no. 188/11) or Whether the workman started absenting himself from duty after 14.09.2007?(in DID no. 195/11)
(iii) Whether the workman is entitled to reinstatement with the consequential benefits?
(iv) Relief.
In DID No. 55/11 the issues no. 2 is different which is as under :
2. Whether the workman has taken his full and final settlement as alleged in written statement?
9. The workman tendered their evidence by way of affidavit and retreated the contents made in the statement of claim and also relied the documents as tendering in evidence vide exhibiting the same. In cross examination the workman has also Workmen Vs. M/s. Ravi Knit Wears Page No. 10 out of 21 denied the suggestions made by the ARM and retreated the contention raised in the statement of claim. However, admitted the signatures on the documents MarkA & B. some of the workman has admitted their signatures, execution of the receipts, though have stated that the management has already obtained the signatures on blank papers and vouchers. The remaiing suggestions were denied.
10. In order to prove the contentions, made in the written statement, management also examined Sh. Ravi Budhiraja as MW1 through an affidavit Ex.MW1/A bears the signatures at point A & B and also relied upon the documents which are also executed with documents vide Ex. MW1/1 to Ex. MW1/2.
11. The management also examined MW2 Sh. B.N Srivastava. Senior (Hand writing experts) in order to prove the signatures on the documents Ex. MW2/A of the claimants, after being examined, the disputed signatures compared with the admitted signatures, he filed the photograph, negatives & CD on record.
12.Having heard the submissions of AR's/ counsels for the parties and carefully gone through the material placed on record. The findings on the issues are as under :
13. Workmen Vs. M/s. Ravi Knit Wears Page No. 11 out of 21
13. Issue No.1 : "Whether the workman has worked for 240 days in a calender year before the alleged termination? The management in the written statement has alleged that none of the workmen/claimants had worked 240 days in a year and have given detailed to each of the claimant/workman that they had worked less than 240 days in a year. The manner in which the management has given the details of the accounts of actual working day of the workman has not been supported by any authenticated document nor given documents like attendance register, salary register and duty slips etc. unable to prove the actual working day of the claimant/workman. Though the claimants/workmen have alleged that they have worked more than 3 to 12 years. There was no break up given in their services record.
14. The MW1 in his cross examination stated that I.D. No. 203/08 which have been adopted in all file, admitted that muster roll of the workman is prepared regarding the attendance of the workman, separate over time register record are maintained by the management. The workman has accompanied with the Labour Workmen Vs. M/s. Ravi Knit Wears Page No. 12 out of 21 Inspector report as visited at the establishment of the management and found that the claimant were working in the management from the period as mentioned in the report dt. 10.04.02 vide Ex.WW1/12, Ex.WW1/13 & Ex.WW1/14 , The Ex.WW1/8 the letter dated 07.8.07 with respect to the official from the employer, PF, personal record regarding intimation to the labour union for deduction of P.F. The management had been maintained all the registers but the same were with held with malafide and deliberate intention and hence same have not been produced in the court. The workman has pleaded that they had completed 240 days in a year, which is supported by Labour Inspector report. Therefore, the onus is shifted upon the management to prove the actual working days of the workman through attendance record, muster roll etc. which are in possession of management. U/s 106 of Indian Evidence Act 1872 says that : "when any fact especially within the the knowledge of any person, the burden of proving that facts is upon him.
In illustration (i) provide that "When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him."
Workmen Vs. M/s. Ravi Knit Wears Page No. 13 out of 21
15. In the instant case the management has not produced any attendance register, muster roll record etc. nor disproved that the workman has worked less than 240 days in a year. The management specifically mentioned this fact in the written statement and the affidavit, the specific days of the work being worked by the workman. The said contentions does not corroborated by any ocular and trustworthy evidence of the management. Though the evidence to this effect was in possession of management. Therefore, the adverse inference will drawn against the management. Report of the labour inspector had not been challenged by the management in any manner. Though, it is admitted by the management that the Labour Inspector visited the management's establishment and prepared the said report. The management has not denied the relationship of the employer and employee between the claimants and the respondents nor it is alleged that the workman was on temporary or daily wager. The period of completion of 240 days in a calender year is provided to attract of provision U/S 25F of the Industrial Dispute Act 1947.
16. In view of the aforesaid discussions, facts and circumstances of the case, the plea of the management that the Workmen Vs. M/s. Ravi Knit Wears Page No. 14 out of 21 workman has not worked for 240 days in a calender year before alleged termination does not carry any water in absence of any positive or trustworthy evidence. Accordingly, issue no.1 is decided in favour of the workman and against the management.
17. Issue No.2.
"Whether the workman has left the job after taking dues up to 21.06.07?"or/and in DID No. 55/11
Whether the workman has taken his full and final settlement as alleged in written statement. The issue as per the plea of absenteeism of the workman after 14 or 25 September, 2007 and or left the job after taking dues are also based on the common question of law and facts hence same is decided together with common findings.
The management contented that the workmen have taken their full and final due and executed the receipts but the workman has denied for their signatures on the said receipts. The management through handwriting experts have also proved in evidence that the signatures on the receipts are similar to the claimants/workmen signatures as signed after receiving the Workmen Vs. M/s. Ravi Knit Wears Page No. 15 out of 21 settlement due amount thereafter, they have not come forward again to join on duty. The management in case of Sanjay Rana, Lala Ram, Anil Kumar, Ishaq Ahmed, and Sunil Kumar contended that they were absented from duty without any information or without any sanctioned leave from 25.09.07 and concerned workman has visited to the management factory on 28.11.07 and stated that they were not interested to work with the management and requested to clear their dues. The management on the same day cleared their dues and got executed the receipt for full and final settlement vide ExMW1/3. The workmen denied the said averment in their replication as well as in their cross examination. The management has taken the plea that the workmen were absented from duty without any sanctioned leave or intimation. The workman has received full and final settlement dues and executed the receipt. The workman absented from duty from 25.09.07 on word but the management did not send any letter/reminder to the workman to join on duty. The management alleged that the workman was absent from duty on 26.09.07 and from September to November. The management did not sent any intimation to the workmen or to the Labour department for full and final settlement with the workman or absented from the duty which is tantamount to violation of Rule 76 of Industrial Workmen Vs. M/s. Ravi Knit Wears Page No. 16 out of 21 Dispute (Central ) Rule 1957.
18. The plea of the management that the workmen were absented from duty. It is obligatory on the part of the management to informed to the Labour department as well as to call upon the workmen through notice by directing them to resume the duty and declared their absence avoidance from the duty and the management is also bound to follow the principle of natural justice by granting an opportunity to the workmen to resume the duty through show cause notice and through an inquiry.
The High Court of Allahabad in 2010IV, Minati Bhattacharya Vs. Regional Food Controller, Kanpur and Others, Hon'ble Mr. Justice Rajiv Sharma has categorically observed that :
"For unauthorised absence form duty On facts, held, opportunity to defend was not given to employee Principle of natural justice violated Dismissal quashed."
In para no. 11 it was also observed that:
"Fundanmental requirement of law that the doctrine of natural justice should be complied with and has, aa a matter of fact, tuned out to be an integral Workmen Vs. M/s. Ravi Knit Wears Page No. 17 out of 21 part of administrative jurisprudence. It was also held in this case that at any enquiry facts have to be proved and the person proceeded against must have an opportunity to crossexamine witnesses and to give his own version or explanation about the evidence on which he is charged and to lead his defence."
19. The workman has also made a complaint to the Labour department as well as to the Police authority for their illegal termination of the service and forcibly obtaining the signatures and the same has been proved in their evidence. It is also matter of record that the management has not sent any letter or show cause notice to the workman by directing them to join on duty and there is also no proof that they were absented unauthorizedly without any sanctioned leave nor the management have intimated to the Labour department for their unauthorized absence from the duty and received the full and final dues, which is also contrary to the principle of natural justice as well as violation of Industrial law. Accordingly, issue issue no2 is decided in favour of workman and against the workman.
20. Issue No. 3:
"Whether the workman is entitled to reinstatement Workmen Vs. M/s. Ravi Knit Wears Page No. 18 out of 21 with consequential benefits?"
From the aforesaid discussions and the material placed on record it revealed that the termination of service of workman is without any show cause notice or holding any departmental enquiry is violation of of natural justice. In these circumstances, the workman is entitled for reinstatement with their consequential benefit. The workmen in their deposition have stated that office staff members are still working with the management after their dismissal. The management has alleged that the management has faced business loss in the establishment after absence of the workmen/claimants. Even if the workmen are allowed to reinstatement it will further create hindrance in the smooth functioning of the establishment as well as also invite victimization to the claimants. The workmen have a satisfactory period of services with the management and from the date of industrial dispute, they have been facing an economical and financial sat back. Therefore, instead of reinstatement and back wages a lump sum compensation will meet the ends of justice.
21. RELIEF In view of the findings the issue no.1, 2 & 3, the Workmen Vs. M/s. Ravi Knit Wears Page No. 19 out of 21 workmen are entitled for the relief claimed. In these circumstances, the order of dismissal of the employee from the service is illegal and/or unjustified. The workman is entitled for reinstatement. The reinstatement order may also cause hindrance and victimization to the claimant in future also. The management alleged to have closed the establishment, therefore, better to be compensated in lieu of reinstatement and back wages.
22. In judgment of Hon'ble High Court of Delhi in case titled as Mohd. Shakir And Sunder Lal Jain Hospital 2010I LLJ245 (Del) it was held that : " illegality of dismissal/termination from service of a workman did not in itself ipso facto result in his reinstatement. The long history of litigation and acrimony between the parties leading to trust deficit in this case was considered by the Labour Court and it had rightly concluded that reinstatement might not be appropriate remedy will justified award of compensation in lieu of the reinstatement of the workman."
23. In another judgment of Supreme Court of India in case titled as Faridan And State of U.P. 2010ILLJ251 it was observed in para no.2 that : "in spite of reinstatement of the appellant with full back wages, the Workmen Vs. M/s. Ravi Knit Wears Page No. 20 out of 21 respondents/State of UP shall pay to Faridan (appellant herein) an amount of Rs.50,000/in addition to any amount which may be paid by it under the impugned award........"
24. Accordingly, in view of the aforesaid discussion, facts and circumstances, each of the claimants be awarded a sum of Rs. 20,000/ each as compensation in lieu of reinstatement and back wages, to meet the end of justice. Award is answered Accordingly.
25. Copy of award be sent to the Secretary Labour, Govt. of NCT, Delhi for publication and to the Sr. Civil Judge, Central District for execution in accordance with the procedure laid down for execution of order and decree of the civil court under order 21 of Code of Civil Procedure, 1908, as per rules. The copy of this award be kept in each file. The award be also sent to server (www.delhicourts.nic.in). File be consigned to record room. Announced in the Open Court on this 17th March, 2012 (Satinder Kumar Gautam) Additional District & Sessions Judge, Presiding Officer, Labour Court, Karkardooma Courts, Delhi.
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