Delhi District Court
Workmen vs . Kay Vee Inc., on 16 December, 2013
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL DISTRICT & SESSIONS JUDGE /
PRESIDING OFFICER LABOUR COURT KARKARDOOMA
COURTS, DELHI.
IN THE MATTER BETWEEN
Workmen Vs. Kay Vee Inc.,
ID No. 72/11 (Old ID No. 513/10)
Ref. No. F24 (39)/ Lab./SD/2010/5091 (dt.20.05.10)
Sh. Hasan S/o Sh. Maqbul Ahmed
Through: Delhi Hosiery Workers Union (Regd.),
1800/09, Govindpuri Extn. Kalkaji,
New Delhi19 .............workman
AND
M/S Kay Vee Inc.,
W17, Anupam Garden, Saiduljab,
IGNOU Road,
New Delhi61 .......Management
ID No. 73/11 (Old ID No. 511/10)
Ref. No. F24 (41)/ Lab./SD/2010/5083 (dt.20.05.10)
Smt. Jyoti Jha W/o Sh. Narayan Chander
Through: Delhi Hosiery Workers Union (Regd.),
1800/09, Govindpuri Extn. Kalkaji,
New Delhi19 ...........workman
AND
ID No. 72/11 & 71/11 Workmen Vs. Kay Vee Inc., 1 page out of 11
M/S Kay Vee Inc.,
W17, Anupam Garden, Saiduljab,
IGNOU Road,
New Delhi61 .......Management
Date of Institution : 09.07.2010
Date of award
:16.12.2013
A W A R D
This common award shall dispose off the Industrial
Dispute No. 72/11 of workmen Hasan S/o Sh. Maqbul Ahmed and
ID No. 73/11 of Smt. Jyoti Jha w/o Sh. Narayan Chandra with
management of M/s Kay Vee Inc., by this common award as the
facts and issues involved in both the cases are common except the
service period, designation and salary which are given in the table
below:
Sr. No. Name of workmen Father's/ H. Name Post/designation D.A./D.T Salary
1.Hasan Sh. Maqbul Ahmed Embroidery Tailor 02.09.06 to 02.03.10 Rs. 6500/
2. Jyoti Jha W/o Narayan Chandra Helper 02.02.09 to 02.03.10 Rs. 2600/ The common facts in both the case as alleged by the claimants are that both the claimants were the employee of the management and working on the above mentioned monthly salary. Their antecedents were net and clean with management. The ID No. 72/11 & 71/11 Workmen Vs. Kay Vee Inc., 2 page out of 11 management was engaged in the business of readymade garments and there are more 100 employee were working. On 25.01.2010, the management pressurized the workmen to withdraw their demands with respect to the industrial dispute regarding the service conditions. The workmen denied to accept the condition of the management as such the management terminated the services of workmen on 02.03.10 without any show cause notice, charge sheet, and did not prepare any seniority list. The management has also not admitted any permission from competent authority, though the workmen have worked for more than 240 days in one consecutive year. As such the conduct of the management for termination the service of workmen is illegal and unjustifiable, which also violation of Section 25F, 25G and section 33 of the Industrial Dispute Act. The workmen have lodged a complaint dt.09.03.10 before the Conciliation Officer to resolve the grievances regarding the illegal termination, however the management did not accepted the demand of the workmen before the conciliation officer and did not take back the workmen on duty. The workmen are unemployed from the date of termination despite their best efforts for reemployment. Hence, prayed for grant of reinstatement, back wages alongwith continuity of service as well as other consequential benefits. ID No. 72/11 & 71/11 Workmen Vs. Kay Vee Inc., 3 page out of 11 The reference was received from National Capital Territory of Delhi, Labour Department from the office of the Deputy Labour Commissioner with the following terms of reference:
" Whether the service of Smt. Jyoti Jha W/o Sh. Narayan Chandr, (Hasan S/o Sh. Maqbul Ahmed) have been terminated illegally and/or unjustifiably by the management, if yes, to what relief is she entitled and what directions are necessary in this respect?"
In case of claimant Hasan, management through the written statement has contended that the claimant has left his service w.e.f. 01.01.10 after receiving the experience certificate as he got better employment somewhere else. After that, he never reported for duty till closure of the management. The proprietor of the management Mrs. Pushpa Thapar was 80 years old at the relevant time and was in capable to handle the business. The management has closed his industry and advertisement issued in newspaper on 14.04.10 intimating closure of the management w.e.f. 31.03.10. No demand notice was ever given to the management by the claimant as such the present dispute is not maintainable in absence of rejection of the demand of the claimant by the management.
ID No. 72/11 & 71/11 Workmen Vs. Kay Vee Inc., 4 page out of 11 In case of claimant Jyoti Jha, the management have denied any relationship of employeremployee between the parties as such in the absence of any relationship, the question of illegal termination from service does not arise. There is no demand notice has been given to the management by the claimant as such the present dispute is not an industrial dispute in absence of any demand of the claimant by the management and present suit is liable to be dismissed.
From the pleading of the parties, the following issues were framed in ID No. 72/11 vide order dt.13.07.12:
1. Whether the workmen abandoned the services of the management of his own? OPM
2. Whether the services of the workmen were terminated illegally and/or unjustifiably if so, to what effect?
3. Relief.
In ID No. 73/11 vide order dt.13.07.12:
1. Whether the workmen abandoned the services of the management of his own? OPM
2. Whether there exist any relationship of employeremployee between parties?
3. Whether the services of the workmen were terminated illegally and/or unjustifiably if so, to what effect? ID No. 72/11 & 71/11 Workmen Vs. Kay Vee Inc., 5 page out of 11
4. Relief.
The workmen examined themselves individually through an affidavit Ex.WW1/A which bears signatures at point A & B. the contents of the affidavit are true and correct. They also relied upon documents Ex.WW1/1 to Ex.WW1/7.
The management has also examined MW1 Sh. Harish Sood, Exmanager of the management through an affidavit Ex.MW1/A in each case which bears his signature at point A & B, he fully aware of the contents of the affidavit and also rely upon documents Ex.MW1/1 to Ex.MW1/4.
Having heard the contention raised by Ld. Authorized Representative of the parties and carefully gone through the material on record as well as documents as placed on record.
ISSUE WISE FINDINGS ARE AS UNDER Regarding relationship of employeremployee between parties?
So for as in order to prove the relationship of employer employee, the management has contended that there is no relationship of employeremployee between the parties as such the question of reinstatement of claimant with statutory benefit does not arise.
The workman has filed an affidavit with the contention as raised in the statement of claim. The workmen in her cross examination has testified that:
ID No. 72/11 & 71/11 Workmen Vs. Kay Vee Inc., 6 page out of 11 "...... she do not have any documentary proof of having work with the management w.e.f. 02.02.09. It is also admitted that she has not sent any demand notice to the management. She do not have any documentary proof to substantiated the averments stated in para 11 of her affidavit. She has searched the job after 02.03.10. Her family expenses are being born by her husband. Her family expenses are Rs.15,000/ per month.
The remaining suggestions were denied. The onus is upon the claimant to prove the relationship of employeremployee between the parties, in order to prove the claim filed by the claimant, the claimant has to stand on her own leg to prove her claim, however, there is no ocular or trustworthy documents placed on record which prove the authenticity of employeremployee relationship between the parties.
In N.C. John vs. Secretary Thodupuzha Taluk Shop and Commercial Establishment Workers Union and others 1973 Lab IC 398, the Kerala High Court held that "The burden of proof being on the workmen to establish the employeremployee relationship an adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employeremployee relationship."
ID No. 72/11 & 71/11 Workmen Vs. Kay Vee Inc., 7 page out of 11 In a case of Swapan Dass Gupta & Ors. vs. The First Labour of West Bengal and Ors. (1976 Lab IC202) it has been held :
"Where a person asserts that he was a workmen of the company, and it is denied by the company, it is for him to prove the fact. It is not for the company to prove that he was not an employee of the Company but of some other person."
Therefore, in view of the above said discussion, facts & the judgment cited above, this issue is decided against the workman.
Issue .1 Regarding, the workmen abandoned the services of the management of his/her own? OPM The management has alleged that the claimant has abandoned the service w.e.f.02.03.10 after receiving the experience certificate as he got better employment elsewhere, after that he never reported for duty till closure of the management as such the question of retaining the junior employee to employing the new faces does not arise. The workmen on the contrary has simply denied this averments, there is no oral or documentary proof that the workmen continuously reported for duty to the management or have approched to the labour department to redress the grievances ID No. 72/11 & 71/11 Workmen Vs. Kay Vee Inc., 8 page out of 11 on 03.03.10 and thereafter. The workmen allegedly made a complaint before the Labour Department on 25.01.10 but there is no such complaint is placed on record nor any official was summoned from the Labour Department. The management has placed on record the document Ex.MW1/7 where as served the notices but the claimant did not turnedup. It is matter of record that there no demand notice was served by the claimant before filing of the present claim to raise the demand of legal rights, therefore, question of rejection of the demand does not arise.
In case of Mahesh Chand Vs. DTC213LLR362 hon'ble Delhi High Court has observed that:
" Habitual absence/negligence cannot be said to be misconduct entailing minor penalty.
Irresposible worker in maintaining regularity and punctuality in his duty for a long period is not entitled to be continued in service.
Burden is upon the workmen to disprove his negligence for continuous long absence or lack or interest. Medical certificate is not reliable if it is not of the relevant period showing specific ailment."
Hon'ble Punjab & Haryana High Court in case G.D. Goyal Vs. Presiding Officer, Central Govt. Industrial Tribunalcum labour CourtII, U.T., Chandigarh and Anr.
" Long unauthorised absence may be presumed as abandonment of employment by the workmen himself if service rules or any such a settlement defines it to be voluntary ID No. 72/11 & 71/11 Workmen Vs. Kay Vee Inc., 9 page out of 11 cessation of employment.
This view also strengthen in case Narayan Chandra Paul Vs. Union of India & Ors.2013LLR589 wherein observed that:
" When unauthorized absence is willful, disciplinary action does not deserve any leniency.
Accordingly, in view of the above said discussion and the judgment cited above, this issue is decided against the workmen.
ISSUE No.3 Whether the management terminated services of the workmen illegally and/or unjustifiably and if so, to what effect? OPW The question of termination as illegal and/or unjustifiable in the absence of any relationship/abandonment with the management does not arise. So for as with respect to the abandonment the workmen himself abandoned the service after receiving the experience certificate and did not turn up despite letter Ex.MW1/7 sent to the workmen. The workmen never being approached to the management to join on duty after receiving the experience certificate, there is no plea of the workmen that he regularly approached to the management for rejoining on duty or have taken assistance from any official from the labour department. In these circumstances, there is no question of illegal termination ID No. 72/11 & 71/11 Workmen Vs. Kay Vee Inc., 10 page out of 11 from service. In view of the aforesaid discussion, facts and circumstances, this issue is decided against workmen.
RELIEF In view of the facts & circumstances, the findings on the aforesaid issues the workmen failed to prove the contentions raised in the claim petition as well as in their affidavit. Hence, the workmen are not entitled for any relief as sought, as the claim does not found any merit, same is hereby dismissed. Reference is answered accordingly.
Copy of award be sent to the Secretary Labour, Govt. of NCT, Delhi for publication of the award. Copy of this award be also kept in separate file. The award be also sent to server (www.delhicourts.nic.in).
File be consigned to Record Room.
Announced in Open Court on this 16th December, 2013 (SATINDER KUMAR GAUTAM) Additional District & Sess ions Judge Presiding Officer, Labour Court, Karkardooma Courts, Delhi.
ID No. 72/11 & 71/11 Workmen Vs. Kay Vee Inc., 11 page out of 11