Delhi District Court
Smt. Indravati W/O Sh. Sultan Singh vs M/S Asba Products on 1 February, 2008
ID NO. 354/2001
IN THE COURT OF MS. MAMTA TAYAL: PRESIDING OFFICER: LABOUR COURT-I :
ROOM NO.50: KARKARDOOMA COURTS: DELHI.
ID NO. 354/2001
DATE OF INSTITUTION: 17.03.2001
DATE OF DECISION: 01.02.2008
BETWEEN
1.Smt. Indravati W/O Sh. Sultan Singh
2. Sh. Vinod S/O Sh. Naresh Kumar C/o Dihari Evam Machinery Majdoor Union, RZ-59, Brahampuri, Pankha Road, Nangal Raya, New Delhi -46.
........ Workman AND M/s ASBA Products B.E -339, Gali No.6, Hari Nagar, New Delhi-64.
........ Management AWARD Secretary (Labour), Government of National Capital Territory of Delhi has referred this dispute arising between the parties named above for adjudication to this Labour Court vide notification No. F.24 (4632)/2000- Lab./2739-43 dated 02.02.2001 with the following terms of the reference:-
1 ID NO. 354/2001
"Whether the services of Smt. Indrawati & Sh.
Vinod have been terminated illegally and/or unjustifiably by the management, and if so, to what relief are they entitled and what directions are necessary in this respect?"
1 On receiving a notice from the court, the workers namely Smt. Indrawati and Vinod filed their statement of claim contending that they had been working with the management as per the following details: -
SN. Name Designation Period of Salary
service drawn
1 Indrawati Machine operator 11 years Rs. 2550/-
2 Vinod Machine operator 10 years Rs. 2000/-
It was further alleged that the management adopted anti labour practice against the workers and did not provide them legal facilities viz. Appointment letter, attendance card, leave book, pay slip, annual and casual leave and minimum wages arrear, etc. The signatures of workers were obtained by management on blank papers and vouchers. When the workers raised repeated demands 2 ID NO. 354/2001 for the legal benefits, the management got annoyed and their earned wages were stopped. Subsequently their services were terminated illegally by the management on 31.07.2000 without paying their bonus, leave wages, overtime and earned wages from 01.06.2000 to 31.07.2000. Workers lodged a complaint dated 01.08.2000 before the labour office against their illegal termination. Despite the efforts of conciliation officer the proceedings failed on account of indifferent attitude of the management. They also lodged police complaints on 04.08.2000 and 18.07.2000. They had sent demand notice dated 07.08.2000 to the management requesting for reinstatement but to no avail. Since, their termination, they are unemployed.
2 The management contested the claim of the workers controverting their averments regarding period of service and designation as claimed by them. It was stated that the workers were helpers and they had not completed 240 days of service. It was further contended that they had left their services after receiving all their dues in full and final settlement from the management. It was averred that Indrawati was kept on trial basis for six months w.e.f. May, 2000. She worked up to 13.07.2000 and took her full and final 3 ID NO. 354/2001 dues on 15.07.2000 for better opportunities. Worker Vinod was also put on trial basis fox six months as a helper w.e.f. June,2000. He worked up to 20.07.2000 and took his full and final payment on 24.07.2000. On 25.06.2000 Indrawati tried to cause damage to the bud machine and when one Mr. Ramesh was called for the repair, she along with co-worker Vinod abused and manhandled him. But no police complaint was lodged about the incident as it involved a female employee. It was further averred that both the claimants were gainfully employed. The receipt of demand notice and all other averments of the workers were denied by the management. 3 In rejoinder, the contentions of the management were controverted and their own submissions were reaffirmed by the claimants.
4 On the pleadings of the parties, following issues were framed on 11.12.2003 :-
1) Whether the claimant took full and final payment? If so, its effect.
2) As per terms of reference.4 ID NO. 354/2001
5 The claim was filed on behalf of two workers namely Indrawati and Vinod. Subsequently evidence was adduced only by Smt. Indrawati. Neither any affidavit was filed by claimant Vinod Kumar nor he tendered himself in evidence. Workman evidence was closed and Sh. S.K. Puri, proprietor of the management appeared as MW1. ME was also concluded. In view of the fact that claimant Vinod Kumar has not come forward to substantiate his claim with the help of evidence, reference qua him stands closed holding that he is not entitled to any relief or favourable directions therein. Written arguments were filed by AR for management while oral submissions were made on behalf of workman. 6 I have carefully considered the matter and given my anxious consideration to the records.
My findings on the issues are as follows :-
ISSUES NO.1&2 :-
7 Both the issues being inter-related on facts and law are taken up together for the sake of brevity. The relationship of employer and employee between the parties is not disputed. It is 5 ID NO. 354/2001 however contention of the management that the claimant Indrawati was inducted as a helper on probation for a period of six months w.e.f. May,2000 and she worked only up till 13.07.2000. She received her full and final payment on 15.07.2000 on account of getting better opportunities elsewhere. She had neither completed 240 days with the management nor her services were terminated. 8 To prove her entitlement to the relief claimed it was incumbent upon the claimant to establish that she had put in a service of 240 days in a period of 12 months immediately preceding her alleged termination by the management. Besides her affidavit and the documents relied upon by her in her own statement, the claimant has also placed and proved as Ex.MW1/W1, the reply filed by MW1, proprietor of management in another industrial dispute raised by another worker Smt. Sheela Devi. The certified copy of affidavit of MW1 filed in the said other case has also been proved as Ex.MW1/W2. Mr. S.K. Puri, proprietor of management was confronted with these documents in his cross- examination as MW1. He admitted that both these documents have been filed by him in Sheela Devi's case in another court. He also admitted that in both Ex.MW1/W1 and MW1/W2, he had stated that Sheela Devi was 6 ID NO. 354/2001 brought to him by another employee Indrawati i.e. the present claimant on 23.12.1997 for employment. These documents are sufficient to conclude that in Sheela Devi's case management admitted that Indrawati was already in employment of the management on 23.12.1997 which means plea of the management that she was engaged in May,2000 is palpably false. MW1 though tried to wriggle out of the consequences of these vital documents by saying that in 1997 the factory was in Badli and was being managed by his brother but this is obviously an after thought. It is interesting to note at this juncture that prior to being confronted with these documents he admitted in his cross- examination that he has been doing this business since 1991 and the factory was shifted from Badli to Hari Nagar in May,2000. At that point he did not utter even a whisper as to factory earlier being managed by his brother. Even otherwise if his brother was managing the factory and he was not aware of the details prior to May,2000, There was no justification for him to depose on oath that he was running this business since 1991. Further neither the name of said brother has been disclosed in entire statement nor he has been tendered in evidence nor any documents have been produced to corroborate this claim of MW1. Moreover if MW1 was not managing the factory in 1997, he could 7 ID NO. 354/2001 not have affirmed on oath in Sheela Devi's case that Sheela Devi was brought to him (not to his brother) on 23.12.97 by another employee Indrawati (present claimant). Besides this when claimant was already in employment of the management since 1997, she could not have been taken on trial basis in May,2000. It is not the case of management that after December,1997 Indrawati had left the job of the management or was taken on rolls again in May,2000. The claimant has denied her signatures on appointment letter Ex.MW1/1 dated 01.05.2000 and in view of the foregoing discussion the statement of claimant in this regard is obviously correct. This is more so in light of another blank appointment letter filed on record by the worker as Ex.WW1/13 to convass that management used to take signatures on these type of blank documents including appointment letters. This statement of WW1 in her affidavit has not been challenged in cross- examination. In circumstances, I have no hesitation to hold that the worker has been able to prove that she had put in a service of more than 240 days with the management. 9 The next plea raised by the management to defeat the claim of worker is that she had herself left the job after taking her full and final dues on 15.07.2000. To prove this the management has 8 ID NO. 354/2001 filed on record two receipts Ex.WW1/M1, WW1/M2 and one voucher Ex.WW1/M3. The claimant has though admitted her signatures on these documents but categorically denied the contents stating that the signatures were obtained on blank papers. In view of this averment of the worker it was for the management to prove the authenticity of these documents and the factum of payment of full and final dues with the help of cogent independent evidence, which it failed to do. On perusal of these documents, it is revealed that no full and final payment amount has been specified in Ex.WW1/M1 and no date of payment is shown on Ex.WW1/M3. In case WW1/M3 is the payment voucher in respect of receipt Ex.WW1/M1 then it is not clarified as to how a sum of Rs.2200/- was arrived at as full and final dues of worker Smt. Indrawati. According to the appointment letter produced by the management itself, her salary was Rs.2200/- per month, hence on 15.07.2000 neither Rs.2200/- could be her salary for 15 days of July,2000 nor it could be salary for June and half of July, 2000. Even otherwise the voucher Ex.WW1/M3 bears the address of Badli village whereas in July,2000 , the management was functioning at Hari Nagar and not at Badli. No account books, attendance record or wages register have been produced to show that any full and final payment was made to the 9 ID NO. 354/2001 claimant on 15.07.2000. Needless to mention that in view of my finding that worker was in employment of the management since 1997, the documents WW1/M1 and WW1/M3 cannot be termed as genuine full and final payment documents as they speak about payment of Rs.2200/- towards satisfaction of full and final dues of the claimant for service of two and a half months. Hence management has miserably failed to prove that the claimant Smt. Indrawati had voluntarily left the service of management on 15.07.2000 after receiving her full and final dues.
10 It is undisputed that the worker is no longer in the service of the management. It is also beyond controversy that neither any notice was served on her prior to termination of her services nor any domestic enquiry was held against her after any show cause notice. The termination of the worker amounts to retrenchment as it does not fall in any of the exceptions provided under section 2 (oo) of I.D. Act. It is admitted that the provisions of sec. 25 F of I.D. Act 1947 were not complied with before retrenchment of the worker. The retrenchment without compliance of Sec. 25 F of I.D. Act is ab initio illegal besides being inoperative and ineffective. It therefore follows that the worker continued to be in service. It is however, settled that 10 ID NO. 354/2001 in all cases of retrenchment in violation of sec. 25 F of I.D. Act, reinstatement is not the sole answer. It has been held recently by Hon'ble Delhi High Court in 'M/s Lords Homeopathic Laboratories Vs. Ms. Lissy Unni, 2006 IV AD (Delhi) 739', citing number of other judgments that in suitable cases compensation may be awarded in lieu of reinstatement.
11 In another case reported as 'Haryna Urban Development Authority Vs. Om Pal, 2007 LLR 582', Hon'ble Supreme Court held that reinstatement with full back wages should not be granted automatically. In view of the fact that claimant has filed a criminal case against the management alleging serious physical assault and the management has leveled counter allegations of serious misconduct against the claimant, in my considered opinion this is not a fit case to order reinstatement.
12 As per record, the worker, Indrawati remained in service for more than four years with the management. Claim of the worker is that she was employed as a machine operator while as per management she was merely a helper. To establish the plea of the 11 ID NO. 354/2001 claimant, MW1 was asked in cross- examination for the records pertaining to employees of the management. MW1 deposed on oath that the management does not maintain any record of the workers in its employment. In circumstances and in view of the findings given herein above that the management has not approached the court with clean hands, the contention of the management that the claimant was only a helper and not a machine operator cannot be accepted. In these circumstances, I hold that a compensation of Rs. 70,000/- (Rs. Seventy thousand only) to the claimant shall be sufficient and adequate in lieu of reinstatement and back wages. I, therefore, hereby award compensation of Rs. 70,000/- (Rs. Seventy thousand only) to the worker, namely, Smt. Indrawati in lieu of reinstatement, back wages, etc. The management is directed to pay the said sum of Rs. 70,000/- (Rs. Seventy thousand only) to claimant Smt. Indrawati within two months from the date of publication of award, failing which the worker shall be entitled to interest on that amount @ 8% per annum from the date of publication of award till payment/realisation of that amount.
13 The reference is answered accordingly. Copies of the 12 ID NO. 354/2001 award be sent to the appropriate government for publication as per law after necessary compliance by Ahlmad. File be consigned to record room.
Announced in the open court (MAMTA TAYAL)
st
on 1 February, 2008 PRESIDING OFFICER LABOUR COURT-I
KARKARDOOMA COURTS, DELHI
(SIX COPIES ATTACHED)
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