Delhi District Court
Carnatic Co. Ltd. vs . Venkatayya "(1963) 2 Llj 638" on 4 February, 2010
# 1 #
IN THE COURT OF MS. RENU
BHATNAGAR
PRESIDING OFFICER LABOUR COURTX
KARKARDOOMA COURTS, DELHI.
I.D. No. :492/05
Date of Institution of the case : 27.09.05
Date on which reserved for Award : 04.02.2010
Date on which Award is passed : 04.02.2010
Between
The Management of
M/S K.Night Frank(INDIA) Pvt. Ltd.
Great Eastern Plaza/Mahindra Tower
2A, Bhikhaji Cama Place, New Delhi
&
M/S D.E.C. Property Management (P) Ltd.,
405, 4th Floor Aggarwal Cyber PlazaI,
Netaji Subhash Place, New Delhi34.
&
Its workman
Sh. Girish Kumar Mourya,
S/O Sh. Tej Pal Singh,
R/O C1/214, First Floor, Rohini
Sector16, New Delhi110015
A W A R D
The workman Sh. Girish Kumar Mourya
# 2 #
raised an industrial dispute regarding the
termination of his services by the management of
M/s K.Night Frank(India) Pvt. Ltd. Direct statement
of claim was filed by the workman in the court. In
the statement of claim, it is stated by the workman
that that he was working as an AC operator/technician
since 01.11.1997, on the last drawn salary of Rs.3,500/
per month with management no.1; that the
management was not providing legal facilities to the
workman such as leavebook, attendance card,
appointment letter, ESI, P.F., E.L., C.L., bonus, over
time and other legal benefits as admissible under the
Labour Law and on demanding the same the
management got annoyed and started pressing the
workman for giving resignation and thereafter
terminated him on 25.08.2004 without any notice and
# 3 #
without the compliance of section 25(f) of Industrial
Dispute Act ; that the workman served a registered
demand notice dated 27.08.2004 upon the
management no.1 which was replied by management
no.1. vide letter dated 10.10.2004 and the workman
was surprised to know from the said reply that he was
not the employee of management no.1, but was an
employee of management no.2; that the workman was
working with management no.1 who has full control
upon him. Hence the workman has claimed
reinstatement with fullback wages and all other
terminal benefits.
The notice was issued to the management.
The management appeared and filed the written
statement and contested the claim of the workman.
In the written statement filed by management, it has
taken the preliminary objection that that there is no
# 4 #
relationship of employer and employee between the
workman and management no.1 and that the
workman never worked as a regular employee of the
management and as such the claim is not
maintainable ; that the claim is timebarred as the
workman has claimed to have worked upto April 1999
with management no.1 and if the period of one year is
counted from the said date, his claim is timebarred.
On merits it is denied that the workman was working
with management no.1 since 01.11.1997 on the post
and last drawn salary as alleged by the workman; that
the workman must have been given casual
employment on account of exigency of work with
management no.1, but the said workman has
abandoned his services with the answering
management and joined the services with
management no.2 and had been taking his salary from
# 5 #
the said management and as such after abandoning
the job, the workman does not have any relation with
management no.1; that the workman has never been
in regular employment with management no.1 and has
been engaged for casual job, and that being a casual
workman he is not entitled for the alleged benefits and
all the admissible benefits were already paid to him.
Allegations of annoyance or pressing for resignation
are denied by management no.1 ; that the socalled
experience letter placed on record by the workman is a
fictitious document and has not been issued by
management no.1 ; that even otherwise Sh.
Madhvender Singh who has issued the said letter had
no authority to issue the same and he has already been
removed by management no.1 in 2002 and the
workman had colluded with him. The receiving of
demand notice is admitted by management no.1. All
# 6 #
other allegations are denied. Hence it is prayed that
the claim be dismissed.
In the written statement filed by
management no.2, management no.2 has taken the
preliminary objection that after abandoning its
services by the workman and after taking all his dues
and benefits, the workman ceased to be an employee of
management no.2. Further the workman does not fall
within the definition of workman as defined under
Industrial Disputes Act. On merits it is stated that
the workman joined the services of management no.2
on 01.04.1999 on a salary of Rs.4,200/ per month and
that he was working continuously without any break
with the answering management since April 1999. It
is denied that his services were terminated on
25.08.2004 ; that management no.2 has never
terminated the services of the workman and he
# 7 #
himself left and abandoned his services for better
prospects; that the answering management is always
looking for the workman and has no objection if the
workman joins again without paying any pay or
benefits for the period he has not worked with the
answering management; that no demand notice was
served upon the management no.2. All other
allegations are denied. Hence it is prayed that the
claim be dismissed.
In replication to the written statement of
management no.1, all the averments of the statement
of claim are reaffirmed and of the written statements
are denied by the workman stating that he has worked
with management no.1 upto April 1999; that there is
collusion between both the managements by which the
workman is shown to be an employee of management
no.2. It is denied that the workman has joined the
# 8 #
services of management no.2 or has abandoned the
services of management no.1 or that he was taking
salary from management no.2.
In replication to the written statement of
management no.2, all the averments of the statement
of claim are reaffirmed and of the written statement
are denied. It is denied that he joined the services of
management no.2 on 01.04.1999 or became an
employee of management no.2. It is submitted that
management no.1 in connivance with management
no.2, is showing him as an employee of management
no.2. It is further submitted that management no.2 is
a client of management no.1 because management no.2
supplied labour to management no.1 on his demand.
All other allegations are denied.
On the pleadings of parties vide order
dated 20.04.2006, the following issues were framed by
# 9 #
my predecessor court :
1. Whether the services of the workman were
terminated by the management on 25.08.2004
illegally and unjustifiably?
2. Whether the workman has abandoned his services
after taking all his dues from the management no.2?
3. Whether there is no relationship between the
workman and the management No.1 regarding
employer and employee?
4. Whether this court has no territorial jurisdiction to
try the matter?
5. Relief.
No other issue arose or pressed. In support
of his case, workman himself appeared as WW1 and
filed his evidence by way of affidavit Ex. WW1/A. In
his affidavit he has retreated all his averments of the
claim. He has tendered in evidence, the documents
# 10 #
Ex. WW1/1, a certificate issue by Sh. Madhvender
Singh, estate manager of the management dated
21.01.2000. Ex. WW1/2 to Ex. WW1/5 identity cards of
the workman. Ex. WW1/6 to Ex. WW1/23 extracts of
the attendance register pertaining to the period from
November 1997 to April 1999, Ex. WW1/24 demand
notice dated 27.08.2004, Ex. WW1/25, reply to
demand notice dated 10.10.2004, Ex. WW1/26
rejoinder to the reply of the management to the
demand notice sent by the workman dated
23.11.2004.
After examining himself the workman
closed his evidence.
The management no1 in support of its
defence has examined MW1 Sh. Amarjeet Singh,
Manager(opertions), who has tendered his evidence
# 11 #
by way of affidavit Ex. MW1/A. In his affidavit he
has reiterated all the averments of the written
statement. He has relied upon the documents Ex.
MW1/1.
Management no2 has examined Sh. P.S.
Bhandari, Manager(HR) in the administration of
management no2 who has tendered his evidence by
way of affidavit Ex. MW2/A and relied upon the
documents Ex. MW2/1 and Ex. MW2/2, extracts of
the bonus register. In his cross examination, this
witness has admitted document of ESIC which is Ex.
MW2/W1.
Sh. Brij Mohan Gupta, Section Supervisor
from P.F. Office, Wazirpur has appeared as MW3 and
has filed on record the P.F. record of the workman Ex.
MW3/A to Ex. MW3/E.
# 12 #
Sh. Harish Kumar, assistant manager of
management no.1 has appeared as MW4 and filed his
evidence by way of affidavit Ex. MW4/A and tendered
in evidence, the document Ex. MW4/1, reply of
management no.1 to the demand notice.
Sh. Naresh Chand has appeared as MW5,
who has appeared from ESIC, Ashok Vihar branch.
He has filed on record a certified copy of the
declaration form of ESIC Ex. MW5/1, alongwith the
statement, Ex. MW5/2, statement of employees form
no.6 for the period from 01.04.2006 to 30.09.2006 Ex.
MW5/3 returns collectively exhibited as Ex. MW5/4,
ESI record after 1999 Ex. MW5/5, certified copy of the
record pertaining to the workman Ex. MW5/6. After
examining MW5, both the managements have closed
their evidence.
I have heard submissions of ARs for both
# 13 #
the parties and have also gone through the file. I
have also gone through the record. My issue wise
findings are as under :
Issue No. 2
For the sake of convenience, issue no.2 is
decided firstly. As per the case of the workman he was
working as AC operator/technician since 01.11.1997
with management no.1 and on demanding the legal
facilities management no.1 had terminated him
illegally on 25.08.2004. It is also stated by the
workman that in reply to his demand notice sent by
management no.1, he came to know that management
no.1 is pleading that he was an employee of
management no.2 and not of management no.1.
On the other hand, as per the defence of
management no.1, the workman was earlier employed
# 14 #
with management no.1 and thereafter joined the
services with management no.2 and had been taking
his salary from the said management. The claim of
management no.2 is that the workman was its
employee till 01.04.1999 and that he himself
abandoned the job after taking his full and final dues
from management no.2. The onus to prove this issue is
upon management no.2. However perusal of the
written statement filed by management no.2 reveals
that in the written statement management no.2 has
nowhere mentioned about the date when the workman
has allegedly abandoned the job of management no.2,
nor any document with regard to taking full and final
dues has been placed on record by management no.2.
Without any documentary evidence it is not proved
that the workman has taken his full and final dues,
moreso when the management no.2 has failed to
# 15 #
disclose the last date of working of the workman with
it.
Abandonment of services by an employee
is a fact to be ascertained from each case and it
depends upon the intention of the workman to be
gathered from surrounding circumstances. It has to be
proved on record that the workman has the intention
to sever his relationship of employer and employee
permanently with the management and only then it
can be said that he has abandoned the employment.
The law of abandonment is very much
clear. It is held by the Hon'ble Delhi High Court in
"2004 LLR 1094" as under:
"Abandonment of workman
from his employment depends
upon his intention."
# 16 #
Similarly it is held in Buckingham &
Carnatic Co. Ltd. Vs. Venkatayya "(1963) 2 LLJ 638"
by the Hon'ble Supreme Court as under :
"Abandonment or
relinquishment of service is
always a question of intention,
and, normally, such an
intention cannot be attributed
to an employee without
adequate evidence in that
behalf."
In GT Lad Vs. Chemicals and Fibres of India
"(1979) Lab IC 290" it is held by the Hon'ble Supreme
Court as under :
"However, the "intention may be inferred
from the acts and conduct of the party'. The
# 17 #
question as to whether the job, in fact has been
abandoned or not, is a question of fact which is
to be determined in the light of the surrounding
circumstances of each case. It was further held
that a temporary absence from duty cannot be
treated as abandonment, but it must be a
permanent break intended by the workman."
In Dr. (Mrs.) Daksha Sankhla Vs. Jai
Narain Vyas University Jodhpur and others, "2001
LLR 1071" by the Hon'ble Supreme Court as under :
"There is distinction between
retrenchment and abandonment
from service. The termination
contemplates an act on the part
of the employer which puts an
end to service to fall within the
# 18 #
definition of the expression
retrenchment and in case the
workman does not report for
duty, it would amount to
abandonment of services by the
employee of his free will and the
employer would have done
nothing, whatsoever, to put an
end to his employment and,
therefore, the case does not fall
within the meaning of
retrenchment."
As per the statement of MW2 they had not
given any notice to the workman when he had
abandoned his services. From the records as produced
on the file no date of abandonment of the job by the
# 19 #
workman is proved. Since the management no.2 has
not produced any documentary evidence like the
attendance record or salary record or bonus record of
the workman to show the last day of working of the
workman with management no.2, nor any document of
full and final is produced, it is held that the
management no.2 has miserably failed to prove that
the workman has abandoned his services after taking
his full and final dues. Even otherwise management
no2 is taking two contradictory pleas side by side. On
one hand it is alleging abandonment which means
leaving the job by the workman permanently and on
the other hand it is pleading that the workman had
left after taking his full and final dues. These
contradictory stands taken by the management no2
also make the stand of management no2 unbelievable.
Hence the issue is decided against the management
# 20 #
no.2 and in favour of workman.
Issue 3
As per the case of management no.1, there
is no relationship of employer and employee between it
and the workman. However perusal of the written
statement, reply to the demand notice of the workman
Ex. MW3/1, affidavit of the witness of management
no.1 Sh. Harish Rawat (MW4) show that the
management no.1 had taken contradictory stand in all
these three documents. In the reply to the demand
notice management no.1 has altogether denied any
relationship with the workman. In the written
statement, it is admitted by management no.1 that the
workman was never a regular employee and must
have been given casual employment on account of
exigency of work with management no.1, but the said
workman has abandoned his services and thereafter
# 21 #
joined management no.2. Similar statement is made
by MW4 in his affidavit. However in the affidavit of
MW4 it is mentioned that there are chances that the
workman might have been taken before the year 2000
occasionally at the time of exigency of work as his
name is not available on any of the records of the
management, nor he has drawn any salary from them
at any time. It is further stated by MW4 that the
workman might have abandoned his casual services
with management no.1 in April 1999 and joined
management no.2. Hence this statement of MW4 is a
vague statement. No specific detail about the
post/designation, date of joining, date of abandoning
the job is mentioned by MW4.
However as is the settlement law that the
onus to prove relationship is upon the workman, as is
held in Hon'ble Supreme Court of India in a case
# 22 #
reported as "2004 LLR 351" has held as under :
"(C) "BURDEN OF PROOF -
For existence of relationship of
employer and employee - It is
well settled principle of law
that the person who sets up a
plea of its existence - The
burden would lie upon him
Having regard to the findings
The High Court has rightly
affirmed the award of the
Industrial Tribunal The
Tribunal as also the High
Court further rightly arrived at
a finding to the effect that the
concerned workman were not
able to discharge their burden
of proof that they were
employed by the society.?
# 23 #
The Hon'ble Madhya Pradesh High Court -
(Indore Bench) in a judgment reported as "2001 (88)
FLR 230" has held as under :
"To prove a contract of
employment, there has to be a
direct evidence to show some
nexus between the claimant
and the respondent. This can
be of any kind such appointment letter, monthly payment slip, deduction of PF, payment of any dues which would show that he was in the employment, any correspondence wherein the respondent has admitted that claimant was in his employment. In substance, the courts are in favour of documentary evidence to # 24 # record a definite finding on such type of issue. They are the best piece of evidence for coming to a conclusion one way or other."
Now let us consider the documents filed by the workman in this case. The relevant documents are Ex. WW1/1 which is a certificate issued by Sh. Madhvender Singh, estate manager of management no.1, wherein the workman is shown to be an employee of management no.1 w.e.f. 01.11.1997 till the date of issuance of the certificate i.e. 21.01.2000. However as is admitted by management no.1, Sh. Madhvender Singh was its employee and the letterhead on which this certificate has been issued belong to management no.1. The other documents are ICards issued by the management no.1 to the workman. On these ICards, # 25 # MW4 on behalf of management no.1 has stated that the same might have been issued by the management and that such type of records are issued to casual workers for incoming and outgoing. As MW4 has partly admitted these documents they have to be given some weightage. Apparently these documents make the workman an employee of management no.1 and are evidence of the fact that the workman was working with the management no1 at one point of time. Further the management no.1 has itself admitted in the written statement that the workmen was employed with it and abandoned the job in April 1999 and joined the management no.2. However management no.1 has also not given any specific date of abandonment. If the workman has abandoned the job, the management had not given any notice to him to join his duties nor any enquiry was initiated against him. No documentary # 26 # evidence like the muster roll has been produced on record to show that from which date the workman has abandoned the job and also to show that despite the abandonment, his name continued to be on the rolls of the management no.1. If the workman abandons the job, a management is duty bound to conduct any enquiry against him. It is not being done in this case. I am supported in my view by the judgment of Hon'ble High Court of Delhi in the case of M/s Arun Industries Vs. Presiding Officer, Labour Court, Delhi and Others reported as 2005 I LLJ 331 wherein it is held as under: "Industrial Disputes Act, 1947 Section 10 Respondent workman's services terminated for temporary absence from duty temporary absence from duty cannot be treated as # 27 # abandonment - workman applied for leave which was not sanctionedHence, absented himself from duty but later returned back to rejoin duties which he was not allowed to do no intention to abandon the service on permanent basis Only misconduct for which liberty granted already to petitioner to take disciplinary action."
In another case reported as titled as DTC Vs. Shri Shishupal reported as 2000 (85) FLR 431, the Hon'ble Delhi High Court has held that : "Even if the respondent workman was absent, this could be treated as misconduct and proper enquiry should have been held against the respondent workman who was a regular # 28 # employee, instead of taking recourse of clause 14 (10) (c) of the DRTA Rules and Regulations."
Similar views were expressed by Hon'ble Delhi High Court in case titled as MCD Vs. Sh. Sukhvir Singh and others reported in 1994 (69) FLR Page 17 wherein it was held as under: "Abandonment of job Workman Engaged as musterroll Beldar Once, it is held that the employment of the workman was not for a specific periodThat the denial of employment to the workman by Corporation shall have to be only according to law If he had abandoned the # 29 # employmentThat could have been a ground for holding an enquiry and passing appropriate order, which was not done Petition dismissed."
In another case titled as Emsons Radio Corporation and Another Vs. Secretary (Labour) Government of NCT, Delhi and Another reported as 2006 LLR 1040, the Hon'ble Delhi High Court has held that "ABANDONMENT Of service by workman Evidence of workman and management both recorded during proceedings and Labour Court discussed evidence recorded and arrived at finding of fact that it was # 30 # not case of workman abandoning service but petitioner terminating service of workmanNo enquiry conducted by Management about unauthorized absence of workman Workman's contention that he had gone to join service and was not allowed to join, remained unrebutted Cross examination of workman shows no suggestion was given to him that he was asked to perform his duty, but he refused to do so Not a case where Labour Court arrived at a decision on basis of no evidence or arrived at conclusion contrary to evidence on # 31 # record."
The workman has filed on record the extracts from the attendance register of management no.1 upto the month of April 1999, after which date as per the averments of the workman his services were transferred to management no.2. To contradict these documents, the management no.1 has not filed their records. Further MW2, an official of management no.2, has deposed in his crossexamination that "I have seen the service record of the workman. I have not seen the appointment letter of application of the workman in the record".
From this statement it is clear that in the records of management no.2, the workman has never applied for appointment, nor management no.2 had given any appointment letter to the workman. It is also admitted by MW2 and MW4 that management # 32 # no.2 takes contract through management no.1 and that management no.2 is the subcontractor of management no.1. These statements of MW2 (Official of management no.2) and MW4 (Official of management no.1), clearly go to prove the relationship between management no.1 and management no.2. In the absence of any application for appointment given by the workman to management no.2, or appointment letter by management no.2, the statement of the workman appears to be convincing and cogent that he was the employee of management no.1. If the workman had abandoned the job of management no.1, there must be some documents with management no.1 with regard to the appointment. The pleadings of management no.1 is full of inconsistency and vague and evasive since management no.1 has neither definitely admitted the workman to be its employee # 33 # nor definitely denied the relationship. Similarly management no.2 has not produced any documentary evidence to show that the workman had applied to it for appointment. The plea of management no.2 that the workman has abandoned its services has already been disbelieved by me in my findings on issue no.2. All these facts clearly go to establish that showing the workman on the records of management no.2 is clearly a defence adopted by management no.1 to evade its legal liabilities towards the workman. The averments of management no.1 that the workman is an employee of management no.2 is certainly a camouflage. Since management no.2 was admittedly a contractor of management no.1 and since both the managements have intentionally not brought out the clear picture on record the statement of workman is believable which is duly supported by the certificate of Sh. Madhvender # 34 # Singh, an employee of management no.1, ICards issued by management no.1 as well as the attendance record produced by the workman up till April 1999, after which date the management had started showing the workman on the records of management no.2. The P.F. and ESI record of the workman under management no.2 appears to be a camouflage and a part of the unfair labour practice on the part of management no.1. Accordingly from the statement of workman as supported by the documentary evidence and in view of the contradictory testimony of MW2 and MW4, It is proved that there existed a relationship of employer and employee between the workman and the management no.1. Once management no.1 has admitted the workman to be its employee, it was for management no.1 to prove the factum of abandonment by the workman or his casual employment in exigency # 35 # of work which management no.1 has evaded to prove. Hence, in view of above discussion, it is proved that there existed a relationship of employer and employee between the workman and management no.1. Hence this issue is decided in favour of the workman against management no.1.
Issue 4 As per the objection of management no.2, it operates within Police Station, Saraswati Vihar and as such this court has no territorial jurisdiction. So far as this objection of management no.2 is concerned, it is mentioned that in the labour matters, there is no demarcation of the jurisdiction on the basis of Police Stations as in the case of criminal matters. If the dispute has arisen within the territory of Delhi, the Labour court has jurisdiction as per the areas alloted as per the notification of the Govt. Hence, there is no # 36 # substance in the argument that since management no.2 falls within the jurisdiction of Police Station Saraswati Vihar, this case cannot be tried in Learned Court. Even otherwise, during the course of arguments this issue has not been agitated by Learned AR for the managements. Accordingly this issue is decided against managements and in favour of the workman.
Issue 1 As per the case of the workman he was illegally terminated by management no.1 on 25.08.2004. In view of my findings above wherein it is held that there existed a relationship between the workman and management no.1 and in view of my findings on issue no.2, it is proved that the workman was terminated by management no.1, since no charge sheet or show cause notice was given to him prior to # 37 # his termination, nor his abandoment of services proved on record. It is also observed above that showing the workman on the rolls of management no.2 is a camouflage and tactics adopted by management no.1 to evade its liability. As per the statement of MWs and the PF and ESI records, the workman is shown to have worked with the management and as per the statement of MW5 based upon the ESI records wherein the ESI contribution of the workman is deposited up till March 2004, it is proved that till 2004, the workman has worked with the management. Hence it is proved from the trustworthy statement of the workman that he was illegally terminated by management no.1 on 25.08.2004. The workman has stated that he is unemployed since the date of his termination. However, during the pendency of the case, as per the orders of the court the workman has # 38 # joined management no.2. Apart from the period for which he was employed with management no.2. during the pendency of the case, as per the orders of the court, no evidence has come from the side of management to prove that the workman was gainfully employed.
Accordingly it is held that the workman was illegally terminated by the managements. Hence this issue is decided in favour of the workman and against the management.
Issue 5 Relief In view of my observations of Issue no.1 to Issue no.4, the workman is granted reinstatement with management no.1 with continuity of service of all consequential benefits and full back wages, making it clear that he will not be entitled for the back wages for # 39 # the period during which he remained employed with management no.2.
The Award is passed accordingly. Ahlmad is directed to send six copies of this award to the appropriate Government. The file be consigned to Record Room.
Announced in the open court on 04.02.2010 (Renu Bhatnagar) Presiding Officer Labour CourtX Karkardooma Courts, Delhi # 40 # I.D.No 492/05 Present: None The award is passed separately. Ahlmad is directed to send six copies of this award to appropriate Government. The file be consigned to Record Room.
(Renu Bhatnagar) POLCX/ 04.02.2010