Delhi District Court
Mohd. Asif vs M/S New Bombay Footwear on 20 March, 2023
IN THE COURT OF MS. MANSIHA TRIPATHY
PRESIDING OFFICER : LABOUR COURT-III
ROUSE AVENUE COURTS COMPLEX : NEW DELHI.
CNR No.DLCT13-003038-2020
L.I.D. No.53/2020
Mohd. Asif, S/o Late Sh. Mohd. Sahid,
Aged 67 years, Mobile No.8960752675,
Adhar Card No.6412 1473 5430,
R/o House No.547/A, Gali Hakim Ji Chudi Walan,
Jama Maszid, Delhi - 110006.
Through : Sh. Nazeem Husain, Vice President,
Mobile No.9871385091, Shop and Commercial
Works Union, Regd. No.411/55, 780, Balli Maran,
Chandni Chowk, Delhi - 110006. .................Workman.
Versus
1.M/s New Bombay Footwear, Prop. Fazlu Rehman and Jamlu Rehman, 829, Bazar Balli Maran, Chandni Chowik, New Delhi - 110006.
2. M/s Bombay Chappal, Shop No.829, Bazar Balli Maran, Chandni Chowik, New Delhi - 110006.
Prop. Ataur Rehman & Ors. ...............Managements.
Date of Institution of the case : 16.03.2020
Date on which reserved for Award : 24.01.2023
Date on which Award is passed : 20.03.2023
-:A W A R D:-
1. The workman filed industrial dispute against the
management alleging therein that his services have been terminated by the management illegally and unjustifiably. In his statement of claim, the workman stated that he has been working for the Proprietor of the management namely Hazi Anishul Rehman since 1969 on the post of (L.I.D. No.53/2020) (Mohd. Asif Vs. M/s New Bombay Footwear) Page No.1 of pages 16 'General Worker' on the last drawn salary of Rs.21,000/- per month. However, neither any appointment letter was issued to him nor any kind of service record was maintained during his service with the management and for 25 years, he was paid wages by obtaining his thumb impression on a ticket (stamp) on a blank paper. He further stated that about 20 years ago, Hazi Anishul Rehman and his brother Ataur Rehman partitioned the shop. Subsequent to partition, Ataur Rehman started running M/s Bombay Chappal in one part of the shop, whereas, Hazi Anishul Rehman continued running New Bombay Footwear in the other part of the shop. He further stated that at the time of his appointment, there were around 32-35 workers in the shop and pursuant to partition, 16-17 workers went to work with Ataur Rehman, whereas other 16-17 workers, including himself, continued to work for Hazi Anishul Rehman. He further stated that after passage of 30 years, Hazi Anishul Rehman continued to run his business alongwith his sons namely Fazlu Rehman and Jamlu Rehman. He alleged that when he raised the issue of increase in salary on account of rising prices, same was denied and he was terminated from his services on 07.09.2019 without payment of earned wages for the period 04.07.2019 to 06.09.2019, in violation of Section 25F & 25H of Industrial Disputes Act.
1.1 Thereafter, he sent a Demand Notice dated 13.09.2019 to the management and sent a copy of the same to the Conciliation Officer on 19.09.2019. In the proceeding before Labour Inspector, the management appeared but denied existence of employer employee relationship with him and failed to produce the relevant record before the concerned Authority. Thereafter, he raised industrial dispute before the (L.I.D. No.53/2020) (Mohd. Asif Vs. M/s New Bombay Footwear) Page No.2 of pages 16 Conciliation Officer on 27.11.2019 wherein the management reiterated its stand regarding non existence of employer employee relationship and again failed to produce its record. No settlement could take place there and he was advised to file his claim before the Court. 1.2 He further stated that after termination of his services, he had sent demand notice to past management ('Bombay Chappal', a partnership concern of Hazi Anishul Rehman and Ataur Rehman) as well as present management (New Bombay Footwear, a proprietorship concern of now deceased Hazi Anishul Rehman through legal heirs Fazlu Rehman and Jamlu Rehman) but no reply to the said demand notices was given by them. He further submitted that he is unemployed since illegal termination of his services despite his best efforts to find employment. Hence, he claimed reinstatement with full earned / back wages alongwith all consequential benefits.
2. Notice of the statement of claim was directed to be sent to the management, pursuant to which only management no.1 appeared through its AR and contested the claim of the workman by filing its Written Statement, wherein it is stated that workman has suppressed true facts and has filed a baseless and fabricated statement of claim and has not approached the Court with clean hands.
2.1 It was stated that that management is a partnership firm running since the year 2000 and having three workers, who are family members of the partners of the firm. It was further stated that workman had never worked with the management and there was no relationship of employer and employee between the management and workman. However, in order to avoid unnecessary litigation the management agreed to settle the matter with the workman by paying Rs.50,000/- as (L.I.D. No.53/2020) (Mohd. Asif Vs. M/s New Bombay Footwear) Page No.3 of pages 16 full and final amount. A settlement Deed was also executed in this regard and settled amount was paid to the workman before Deputy Labour Commissioner, North Delhi. It was further stated that the workman had filed the present claim only to extort money from the management and as such the claim of workman is liable to be dismissed.
3. In rejoinder to the Written Statement of the management, all the averments of the managements were denied and that of Statement of claim were reaffirmed by the workman. It was clarified in the rejoinder that the workman had raised a dispute for payment of earned wages before Deputy Labour Commissioner and during the said proceedings, the management paid Rs.50,000/- to him on 13.01.2021 towards the settlement of due earned wages of two months two days. It was further stated that the Sh. Nazim Hussain, who was representing the workman as the office bearer of Union alongwith the counsel for management executed the full and final settlement for only Rs.50,000/- on the pretext that he was not having any record regarding his employment. It was further stated that it was misrepresented to him that the amount was only towards the earned wages and therefore, he put his thumb impression and signatures in Urdu on the settlement deed and that he was not informed regarding execution of full and final settlement. It was stated that the workman has not done any full and final settlement and the Union representative in connivance with the management counsel has got full and final settlement executed only for Rs.50,000/- despite of the fact that the workman had worked for approximately 50 (fifty) years for the management.
4. From the pleadings of the parties, vide order dated (L.I.D. No.53/2020) (Mohd. Asif Vs. M/s New Bombay Footwear) Page No.4 of pages 16 28.02.2022 the following issues were framed:-
(i). Whether there exists relationship of employee and employer in between the parties to the present claim petition? OPW.
(ii). Whether the matter was settled finally for Rs.50,000/-
as stated by the management in para no.5 of the Written Statement? OPM.
(iii). Whether the services of the workman have been illegally and unlawfully terminated by the management on 07.09.2019? OPW.
(iv). Whether the workman is entitled for reinstatement in services with full back wages, continuity of services and other consequential benefits as prayed for by the workman in his claim petition? OPW.
(v). Relief, if any.
5. No other issue arose or was pressed for and accordingly the case was adjourned for evidence of the workman.
6. Thereafter, workman led his evidence and stepped into the witness box as WW1 and tendered his evidence by way of affidavit as Ex.WW1/A, wherein he reiterated on oath the averments made in his statement of claim and rejoinder. He relied on the following documents:-
(i). Copy of demand notice dated 19.09.2019 Ex.WW1/1;
(ii). Copy of postal receipt Ex.WW1/2;
(iii). Copy of the complaint dated 19.09.2019 sent to the Labour Department Ex.WW1/3;
(iv). Copy of the proceedings conducted by the Labour (L.I.D. No.53/2020) (Mohd. Asif Vs. M/s New Bombay Footwear) Page No.5 of pages 16 Inspector Ex.WW1/4;
(v). Copy of demand notice dated 18.11.2019 sent on both the addresses of the management Ex.WW1/5 alongwith its postal receipts Ex.WW1/6 and receiving/tracking report Ex.WW1/7;
(vi). Copy of statement of claim filed before the Conciliation Officer Ex.WW1/8;
(vii). Copy of the failure report dated 21.02.2020 issued by the Conciliation Officer Ex.WW1/9;
(viii).Copy of the full and final settlement receipt dated 13.01.2021 executed between the parties before Dy.
Labour Commissioner (North District), Nimri Colony, Delhi Ex.WW1/10.
6.1. The witness was cross examined by Ld. AR for the management, wherein he admitted that he had received Rs.50,000/- from the management against full and final settlement before the Deputy Labour Commissioner (North), Delhi. However, he claimed that the amount was received by him under pressure and compulsion. He admitted that he did not lodge any complaint either against the management or against the Deputy Labour Commissioner regarding the alleged pressure and compulsion. He also admitted that he did not lodge any complaint against the management during his entire (alleged) service running over a span of 50 years. He further admitted that he has not placed on record any documentary evidence that he had worked with the management for a period of 50 years and denied the suggestion that he was not having any documentary evidence because he had never worked with the management. He also denied the suggestion that (L.I.D. No.53/2020) (Mohd. Asif Vs. M/s New Bombay Footwear) Page No.6 of pages 16 Rs.50,000/- was paid to him by the management as full and final settlement only with a view to avoid unnecessary litigation. 6.2. Thereafter, workman evidence was closed and case was fixed for management evidence.
7. In support of its defence, Management examined Sh. Jamil- ur-Rehman as MW-1, who tendered his evidence by way of affidavit as Ex.MW1/A, wherein he substantially reiterated on oath the averments made in the Written Statement. He proved on record copy of settlement receipt dated 13.01.2021 as Ex.MW1/1 7.1. He was cross examined by Ld. AR for the workman wherein he admitted that the management does not maintain any muster roll, attendance register, overtime register or any other employment record and had never issued any appointment letter to anybody and added that no workman has ever been employed by the management and only family members have been helping to run the shop (and therefore, there was no occasion to prepare any such record). He claimed that workman Asif was not known to him, however, he admitted that management had paid Rs.50,000/- to the workman before Deputy Labour Commissioner, Nimri Colony and clarified that the said amount was paid to the workman to avoid unnecessary litigation and harassment as his brother and him were keeping unwell. He denied knowledge as to whether the workman was working with Bombay Chappal Store, which was run by his father and uncle since 1969 and added that he has nothing to do with the said firm. He denied the receipt of Demand Notice from the workman. He denied that the management firm is inherited by him from his father and the same was part of Bombay Chappal Store, which came to the share of his father after partition.
(L.I.D. No.53/2020) (Mohd. Asif Vs. M/s New Bombay Footwear) Page No.7 of pages 16 7.2. Then on the statement of Ld. AR of the management, management evidence was closed vide order dated 05.12.2022 and case was fixed for final arguments.
8. I have heard the arguments in the matter and carefully perused the entire material placed before me including the written submissions, filed by the workman. My issue wise findings are as under:-
9. -:ISSUE No.1:-
Whether there exists relationship of employee and employer in between the parties to the present claim petition? OPW.
9.1. The onus to prove this issue was on the workman.
Admittedly, the workman did not possess any document whatsoever to prove his relationship with the management. Apart from his own self serving testimony, he failed to produce any oral evidence of natural witnesses such as co-workers, customers, dealers and people working at neighbouring shops in support of his claim of employment with the management.
9.2. However, it was submitted on behalf of the workman that the fact that the management has entered into full and final settlement ought to be taken as admission of the management regarding his employment with the management. It was argued that in these times, no one would pay a stranger Rs.50,000/- to settle the dispute and it goes to show that the workman was indeed employee of the management. 9.3. On the other hand it was submitted on behalf of the management that it entered into settlement to avoid unnecessary litigation and same can not be taken as admission of employer -
(L.I.D. No.53/2020) (Mohd. Asif Vs. M/s New Bombay Footwear) Page No.8 of pages 16 employee relationship by the management.
9.4 Settlement Ex.MW1/1 is admitted and relied upon by both the parties. Same is reproduced (translated in English) herein below:-
Receipt / Agreement I, Mohd. Asif son of Sh. Mohd. Shaheed, resident of 547/A, Gali Hakeem Ji Chudiwalan, Jama Maszid, Delhi, today on 13.01.2021, have collected Rs.50,000/- only in cash towards my due and final settlement amount from the management M/s Jameelu Rahman Fazlu Rehman, New Bombay Footwear, 829, Ballimaran, Chandni Chowk, Delhi - 110006. The aforesaid amount includes my earned wages, notice pay, service compensation, unemployment compensation, overtime compensation, gratuity, bonus till date etc. whichever is applicable.
After receiving the aforesaid amount, I no longer have any dues or dispute with the aforesaid management nor will I raise the demand of reinstatement in future and I have executed this receipt voluntarily in favour of the management without any undue influence so that the record is with the management and can be used at the appropriate time. By this settlement, all disputes pending in Labour Office / or Labour Court will be deemed to be withdrawn. I am leaving the job with my own free will and am not interested in further employment.
Signature worker
Delhi
Date 13.01.2021 (signed)
1. Witness Advocate Pankaj Tripathy (signed) 2. Nazim Hussain Ch. No.931, Rohini Court, Delhi. 780, Balli Maran ............... above cash amount received Chandni Chowk, Delhi Signature worker (in urdu) (LTI of workman) 9.5 It is clear from the settlement Ex.MW1/1 that management has paid the settlement amount towards earned wages, notice pay, service compensation, unemployment compensation, overtime compensation, gratuity, bonus till date etc. whichever is applicable and thereby it has admitted the relationship of employer and employee with the workman.
9.6 The contention of management that it had entered into settlement to avoid unnecessary litigation is liable to be outrightly rejected in view of written admission regarding nature of transaction / (L.I.D. No.53/2020) (Mohd. Asif Vs. M/s New Bombay Footwear) Page No.9 of pages 16 relation between the parties as documentary evidence Ex.MW1/1 would prevail over oral evidence of MW-1. Even otherwise, had the management entered into settlement to avoid unnecessary litigation, there was no reason why it could not have recorded so in the settlement. 9.7 In view of the admission of management in settlement Ex.MW1/1, workman has successfully proved that there was relationship of employee and employer between him and the management.
9.8 This issue is decided accordingly.
10. -:ISSUE No.2:-
Whether the matter was settled finally for Rs.50,000/-
as stated by the management in para no.5 of the Written Statement? OPM.
10.1. Onus to prove this issue was on the management. On this issue, MW-1 deposed that in order to avoid unnecessary litigation the management agreed to settle the matter with the workman by paying Rs.50,000/- as full and final amount. He also deposed that a settlement Deed was also executed in this regard and settled amount was paid to the workman before Deputy Labour Commissioner, North Delhi. He produced the certified copy of joint application filed by the parties before the Authority under Shop and Establishment Act, Nimri Colony, Delhi alongwith record of proceedings / order of the concerned Authority dated 13.01.2021 and certified copy of the settlement receipt dated 13.01.2021 Ex.MW1/1.
10.2. The execution of settlement receipt Ex.MW1/1 and payment of the settled amount of Rs.50,000/- in terms thereof is admitted by the workman. However, the workman disputed the said settlement on (L.I.D. No.53/2020) (Mohd. Asif Vs. M/s New Bombay Footwear) Page No.10 of pages 16 different grounds during the different stages of proceedings. In his statement of claim, the workman did not mention anything about the settlement. When the issue of settlement was raised by the management in its Written Statement, the workman disputed the settlement in his rejoinder by claiming that he was ill informed about the settlement and had received Rs.50,000/- and executed settlement receipt Ex.MW1/1 under the impression that the same was only towards earned wages and not for full and final settlement of the dispute. He further claimed that the settlement receipt Ex.MW1/1 was got executed by his Authorised Representative in connivance with the management counsel by way of misrepresentation. He also admitted that same was executed as he had no proof of his relationship with the management. 10.3. However, during his cross examination he changed his version and admitted entering into full and final settlement for Rs.50,000/- before the Deputy Labour Commissioner, but he claimed that he had entered the settlement under pressure and compulsion, though, he did not disclose who had pressurized or compelled him to enter settlement and what were the pressure and compulsion faced by him to enter full and final settlement.
10.4. In written submissions filed on behalf of the workman, it has been again stated that the workman had entered into full and final settlement for Rs.50,000/- because he did not have any evidence to show that he was in employment of the management.
10.5. Thus, it is seen that the execution of settlement receipt Ex.MW1/1 and payment of Rs.50,000/- in terms of the receipt is not disputed by the workman at any stage of the proceedings. Even though, the workman disputed his knowledge regarding the nature of settlement (L.I.D. No.53/2020) (Mohd. Asif Vs. M/s New Bombay Footwear) Page No.11 of pages 16 and alleged that the same was executed on account of misrepresentation by his Authorised Representative with connivance with the management counsel, in his rejoinder, he has not substatiated the same by producing any evidence to that effect. In fact, even in his deposition as WW-1 he has not uttered a word regarding being misrepresented or any kind of fraud being played upon him. Rather, in his cross examination he stated that he had entered into settlement under pressure and compulsion without disclosing the source of pressure and compulsion. Further, it has also been admitted that he had entered into settlement because he was not having any proof regarding his relationship or employment with the management. Admittedly, no complaint has been lodged before any authority by the workman against his Authorized Representative or the Deputy Labour Commissioner before whom the settlement was entered and settlement receipt Ex.MW1/1 was executed. To the contrary, it is evident from record that the authorized representative who is stated to have represented the workman at the time of settlement and has witnessed the settlement receipt Ex.MW1/1, continued to represent the workman even in the present case, right from the stage of filing of statement of claim till the conclusion of proceedings. 10.6. The mere allegation of misrepresentation or fraud without any evidence to that effect will not vitiate the settlement. Whether the settlement amount was adequate or not or whether the workman entered into the settlement due to lack of evidence to substantiate his claim, is not for the court to consider or inquire into so long as the settlement was entered into voluntarily without any coercion, undue influence, fraud or misrepresentation. The workman has failed to produce any evidence to show that the settlement was not entered into (L.I.D. No.53/2020) (Mohd. Asif Vs. M/s New Bombay Footwear) Page No.12 of pages 16 voluntarily or was entered on account of any coercion, undue influence, fraud or misrepresentation and as such same is a valid settlement. Perusal of settlement receipt Ex.MW1/1 shows that it includes the claim of the workman for earned wages, notice pay, service compensation, back wages, overtime wages, gratuity, bonus etc. and that pursuant to the receipt of the settlement amount, the workman has no dispute of any kind left with the management and that all proceedings before Labour Office / Labour Court shall be treated as withdrawn. Therefore, in my view the settlement is full and final settlement and covers the present proceedings as well.
11. -:ISSUE No.3:-
Whether the services of the workman have been illegally and unlawfully terminated by the management on 07.09.2019? OPW.
11.1 On this issue, the workman has deposed in his evidence by way of affidavit that on raising issue of increase in salary on account of increasing cost of living, his request was denied and his services were terminated on 07.09.2019 without payment of earned wages, in violation of Section 25F and 25H of Industrial Disputes Act, 1947. 11.2 The management disputed the relationship of employer and employee between the workman and management and did not lead any evidence whatsoever to dispute the claim of the workman regarding his termination of services in violation of Section 25F and 25H of Industrial Disputes Act, 1947. As already recorded in my findings on issue no.1, the workman has successfully proved the relationship of employer and employee between him and the management. Since the workman successfully established his relationship with the management as its (L.I.D. No.53/2020) (Mohd. Asif Vs. M/s New Bombay Footwear) Page No.13 of pages 16 employee and also deposed regarding termination of his services in violation of Section 25F and 25H of Industrial Disputes Act, 1947, onus shifted upon the management to show that it had complied with the provisions of Section 25F and 25H of Industrial Disputes Act, 1947 at the time of termination of his services. As the management neither pleaded nor led any evidence to show that it had complied with the provisions of Section 25F and 25H of Industrial Disputes Act, 1947 at the time of termination of the services of the workman, it can be inferred that the services of the workman was terminated in violation of provisions of Section 25F and 25H of Industrial Disputes Act, 1947.
This issue is accordingly decided in favour of workman and against the management.
12. -:ISSUE No.4:-
Whether the workman is entitled for reinstatement in services with full back wages, continuity of services and other consequential benefits as prayed for by the workman in his claim petition? OPW.
12.1 As has already been discussed in findings on issue no.2, the parties had entered into full and final settlement before the Authority under Shops and Establishment Act, Nimbri Colony, Delhi on 13.01.2021 and had also executed settlement receipt of the said date vide Ex.MW1/1 upon receipt of the settled amount. The said settlement was full and final settlement towards all claims including earned wages, notice pay, service compensation, unemployment compensation, overtime compensation, gratuity, bonus, whichever applicable as well as claim for reinstatement and it covered the present proceeding as well.
Since the workman had admittedly entered into full and final settlement (L.I.D. No.53/2020) (Mohd. Asif Vs. M/s New Bombay Footwear) Page No.14 of pages 16 with the management, which covered the present proceedings and his claims herein and received the agreed amount in terms of said settlement, he is not entitled to any benefit, as prayed in his claim petition. Issue stands decided accordingly.
13. -:RELIEF:-
13.1. In view of my findings on issues no.2 & 4, the workman is not entitled for any relief.
13.2 It is clarified that the present claim was filed against two managements namely M/s New Bombay Footwear (Prop. Fazlu Rehman and Jamilu Rehman) and M/s Bombay Chappal (Proprietor Ataur Rehman and others) and vide order dated 16.03.2020, notice of the claim was directed to be issued to the 'management' for 28.04.2020 by Ld. Predecessor Court. There is nothing on record to confirm if pursuant to said order any notice was issued to management no.2 M/s Bombay Chappal or not. On 08.04.2021, Sh. Pankaj Tripathy, Ld. AR for the management no.1 M/s New Bombay Footwear appeared and pursued the case on behalf of management no.1 M/s New Bombay Footwear. Non-issuance of notice or non-appearance of management no.2 M/s Bombay Chappal was never agitated before the court and management no.2 M/s Bombay Chappal did not participate in the proceedings and accordingly the case continued only against M/s New Bombay Footwear.
13.3 However, even if all the pleadings of the workman in respect of management no.2 M/s Bombay Chappal are taken to be correct and accepted as it is, then also no relief against management no.2 M/s Bombay Chappal is made out because admittedly on partition of shop by Hazi Anishul Rehman and his brother Ataur Rehman, about 20 years (L.I.D. No.53/2020) (Mohd. Asif Vs. M/s New Bombay Footwear) Page No.15 of pages 16 ago, Ataur Rehman started running M/s Bombay Chappal in one part of the shop, whereas, Hazi Anishal Rehman continued running New Bombay Footwear in the other part of the shop and workman voluntarily chose to continue/join management no.1 M/s New Bombay Footwear. Since admittedly, workman does not have any relationship with management no.2 M/s Bombay Chappal for the last 20 years, he is not entitled for any relief from management no.2. Therefore, this award shall operate in relation to all the parties mentioned in statement of claim.
14. Requisite number of copies of this award be sent to the competent authority for necessary compliance, as per rules.
15. File be consigned to the Record Room after completion of necessary formalities.
Announced in the open Court on 20.03.2023 (MANISHA TRIPATHY) Presiding Officer Labour Court-III Dwarka Courts, Delhi.
(L.I.D. No.53/2020) (Mohd. Asif Vs. M/s New Bombay Footwear) Page No.16 of pages 16