Delhi District Court
Sh.Rishi Prakash S/O Satvir Singh vs (1) The Management Of on 11 December, 2015
IN THE COURT OF SHRI NARINDER KUMAR
ADDITIONAL DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER : LABOUR COURTXIX
KARKARDOOMA COURTS : DELHI.
LIR/D No. 118/2011 (Old No. 112/2009)
Unique Case ID No. 02402C0360322009
Sh.Rishi Prakash S/o Satvir Singh
R/o A1/29, Nand Nagri
Delhi110093. ............CLAIMANT
Versus
(1) The Management of
M/s Johnson & Johnson Ltd.
A2, Community Centre,
Naraina PhaseII,
New Delhi110028.
(2) M/s IT Source India Tech. Pvt. Ltd.,
33/264, Anand Nagar,
Nehru Road, Vakola,
Santacruz (E),
Mumbai400055. .........MANAGEMENTS
Date of institution of the case : 09.12.2009
Date of passing the Award : 11.12.2015
A W A R D
This is a claim directly presented by the workman under
Industrial Disputes Act (hereinafter referred to as the Act) directly before the
Labour Court on 09.12.2009 challenging termination of his services by the
managements. Prayer in the claim is for reinstatement in service with full
LIR/D No. 118/11 1 of 15
back wages and continuity in service with consequential benefits.
Case of claimant/workman :
2. In brief, case of the workman, as put forth in the statement of claim is
that he joined employment with the managements on 22.09.2008 as 'Data
Entry Operator' and that his last drawn wages were to the tune of Rs.
10,400/. As per para no. 2 of the claim, he was recruited by management
no.1 and as such working under its direct supervision and control, but it
appeared that management no.1(herein referred as M1) had a sham contract
with management no.2 (herein referred as M2).
Grievance of the workman is that on 01.09.2009 Sh. Sanjay Arora,
Asstt. Manager (Finance) terminated his services. Even thereafter he was
reporting for duty, but he was never allowed to join duties. He sent demand
notice to the managements on 13.10.2009, but the same was not accepted by
them. As further claimed by the workman, ever since termination of his
services he remained unemployed despite his best efforts.
Version of Management no. 1(M1)
3. In its written statement, management No.1 (M1) raised preliminary
objections as to the maintainability of this claim on the ground that no
relationship of employer and employee ever existed between this
management and the claimant. Plea of the management is that the claimant
was the employee of Management No.2( M2). M1 entered into an
agreement with M2 under which M2 used to provide to M1 services of
LIR/D No. 118/11 2 of 15
Hardware, Software, Network (infrastructure only) support services as per
service agreement dated 01.04.2009. As per para no. 2.3 of said agreement
"The personnel's deployed by M2 with M1 shall be full time and regular
employees on the monthly pay roll of M2 and further that M2 shall be
fully responsible to meet all statutory and legal requirements regarding their
employment. Accordingly, M1 pleaded to have been unnecessarily arrayed
as a party, and prayed for dismissal of the claim.
Version of Management no. 2(M 2).
4. In its written statement, management2 has admitted that the claimant
was working with it in as a Customer Service Engineer and further that
since he was enjoying various discretionary powers, on a managerial and
supervisory post in its employment and drew last salary to the tune of Rs.
10,400/ per month, he was not a "workman" within the meaning of Section
2(s) of the Act.
Another plea put forth by the management is that after the workman
joined employment with this management, he was deputed at the premises of
M1, as the answering management had entered in the contract with
management no.1 to provide said management (No.1) services of Hardware,
Software, Network, support services etc.
Another plea put forth by the answering management is that the
workman left services of the answering management w.e.f. 01.09.2009
submitting that he had got better employment. He so left, without
LIR/D No. 118/11 3 of 15
submitting any formal resignation letter. The answering management has
denied termination of services of the workman. Further, it has pleaded that
the workman was not an employee of M1. It has also been pleaded that
salary of the workman was being paid by the answering management by way
of payees accounts cheque/bank transfer.
Answering management has denied to have received any demand
notice dated 13.10.2009 from the workman.
On the aforesaid pleas, this management has also prayed for
dismissal of the claim of the workman.
Despite opportunities, workman did not file any rejoinder.
Points for consideration
5. From the pleadings of the parties, vide order dated 13.04.2011,
following issues were framed:
(i) Whether the claimant is a workman as defined u/s 2(s)
of Industrial Disputes Act, 1947? OPW.
(ii) Whether there existed relationship of employee and
employer between the claimant and the managements?
OPW.
(iii) Whether the claimant was an employee of management
no.1 or of management no. 2? Onus on parties.
(iv) Whether services of the claimant were terminated
illegally and/or unjustifiably by the management on
01.09.2009?OPW.
(v)Whether the claimant himself was absenting from duty
since 01.09.2009 voluntarily? Onus on M 2
LIR/D No. 118/11 4 of 15
Evidence
6. In order to prove his case, workman has stepped in the witness box as
WW1 and tendered in evidence his affidavit Ex. WW1/A and documents Ex.
WW1/1 to Ex. WW1/7.
On the other hand, management no.2 examined M2W1 Sh.
Sunil Shinde, it Senior Manager. M2W1 has tendered in evidence his
affidavit Ex.MW2/A and documents.
M2W2 is Sh. Pawan Sharma, Regional HR from CMC Limited,
Noida.
Issue nos.1, 2 and 3 ( (i)Whether the claimant is a workman as defined
u/s 2(s) of Industrial Disputes Act, 1947?OPW (ii) Whether there existed
relationship of employee and employer between the claimant and the
managements?OPW and (iii) Whether the claimant was an employee of
management no.1 or of management no. 2? Onus on parties.)
7. As noticed above, workman has come up with the version that
he joined employment on 22.09.2008 as 'Data Entry Operator'. He has so
testified in his affidavit Ex.WW1/A. As regards his employment, workman
has testified that he was recruited by management no.1 and as such he was
working under its direct supervision and control; that management no1 had a
sham contract with management no.2 and that he had nothing to do with
management no.2 in any manner.
Management no.1 has denied existence of any relationship of
employer and employee with the workman and pleaded that actually this
LIR/D No. 118/11 5 of 15
management had entered into an agreement with management no.2 to avail
of its services in Hardware, Software, Network (infrastructure only) support
services as per service agreement dated 01.04.2009.
It is also case of Management no.2 that the workman was employed by
this management as ' Customer Service Engineer'. The date of joining has
not been disputed by M2. Even the last drawn wages have not been
disputed.
In his cross examination, although the workman stated that he
was working with M1, in next sentence he stated that Ex.WW1/1 i.e.
appointment letter dated 22.09.2008 was issued to him by M2. As regards
his designation, the workman stated in his cross examination that although
he was appointed as 'Data Entry Operator', in the appointment letter, his
designation was shown as 'Customer Support Engineer'.
Ex.WW1/1 is the appointment letter. Its contents do not reveal that
the workman was employed by M1. Although he stated in his cross
examination that Sh. Jagat Rathore and Sh. Sanjay Arora conducted his
interview on behalf of M1 but added that Ms. Decosta from M2 also
interviewed him. He has not proved on record any documentary evidence to
suggest that he was employed by M1.
It is true that in his cross examination M2W1Senior Manager of M2
stated that appointment letter Ex.WW1/1 issued by M2 does not bears
signatures of the workman, but the same does not help the workman, in view
LIR/D No. 118/11 6 of 15
of his own statement in cross examination that this letter was issued to him
by M2. There is nothing on record to suggest that the claimant, at any point
of time, lodged protest with M1 as to why the appointment letter had been
issued by M2 and as to why M1 had not issued him any appointment letter.
8. As regards salary, workman has not brought on record any material to
suggest that he was paid wages at any point of time by M1 or that he was
under control and supervision of M1. He further admitted that his salary
used to be paid by M2. Although in his cross examination he stated that
earlier it was decided that M1 would pay him salary, it was paid by M2.
Workman has however, not produced on record any document to suggest that
M1 had ever agreed to pay him salary. He has also not produced on record
any document to suggest that he had refused to receive salary from M2 or
that at the time of payment of wages by M2 he received the same under
protest on the ground that he was actually employed by M1.
In Workmen of FCI v. FCI of India, 1985 II LLJ 4, cited by learned
Authorized Representative of M2, Hon'ble Apex Court while dealing with
the point of contract employment, observed that where a contractor employs
a workman to do the work which he contracted with a third person to
accomplish on the definition as it stands, the workman of the contractor
would not without something more become the workman of that third
person.
9. From the material available on record and applying the well
LIR/D No. 118/11 7 of 15
settled law to the facts and circumstances of this case, it stands proved that
the workman got employed with M2 and that M1 did not employ him, and
as such there was no relationship of employer and employee between the
claimant herein and M1.
So far as the preliminary objections raised by M2 that the
workman was not a workman within the meaning of Section 2 (s) of the Act,
management has not led any evidence.
In the course of arguments, no material has been pointed out to
suggest that the workman was working on any managerial and supervisory
post.
Ex.WW1/1 i.e. the appointment letter does not indicate the nature of
duties of the workman.
10. Therefore, this court finds that management has failed to prove
that the workman was posted to perform or he performed any managerial or
supervisory post, so as to say that he is not covered by definition of
"workman" under Section 2 (s) of the Act.
11. In view of the above discussion, issue no.1 is decided in favour
of the workman and against M2.
12. Issue no.2 is partly decided in favour of the workman by
observing that relationship of employee and employer existed between him
and M2, and further that he has failed to prove that any relationship of
employee and employer existed between him and management no. 1.
LIR/D No. 118/11 8 of 15
In view of above findings under Issue No.2, that workman was an
employee of M2, issue no. 3 is decided accordingly.
Issue no. 4 and 5.
13. Both these issues are interconnected and as such taken up
together. Workman has testified in his affidavit that M1 terminated his
services w.e.f 01.09.2009.
While deciding issue no. 1, 2 and 3 above, it has been held that no
relationship of employer and employee existed between the workman and
M1. Therefore, this court holds that workman has failed to prove
termination of his services by M1.
M2 has come up with the plea that the workman left his
services w.e.f. 01.09.2009 and did not join.
Sh. Sunil Shinde M2W1 has testified in his affidavit that having
worked for about 11 months, the workman stopped attending work w.e.f.
01.09.2009. According to this witness, this workman attended his duties
upto 31.08.2009. In this regard, he is stated to have enquired from Sh. Sahid
Ansari, superior and supervisor of the workman. He and Sh. Sahid Ansari
then telephonically contacted the workman in the second week of
September, 2009 and enquired him about his absence from duty, whereupon
he informed that he had got better employment and also that he was not
interested to work with M2.
Further according to M2W1, the workman was reminded of the
LIR/D No. 118/11 9 of 15
requirement of giving requisite notice and completion of other formalities,
whereupon he assured that he would submit his resignation letter and
complete all the formalities soon, which according to M2W1, the workman
failed to complete.
14. In order to prove absence/abandonment of the job by the workman
w.e.f. 01.09.2009 it was for M2 to produce the attendance register or the
record depicting his absence w.e.f. 01.09.2009. M2 has not produced on
record any such record to suggest that despite absence, name of the
workman remained on the muster roll of this management. Therefore, it
cannot be said that the workman absented from said date i.e. 01.09.2009.
Rather, it can safely be said that M2 terminated services of the workman
w.e.f. 01.09.2009.
Had the workman been absenting from duties after 31.08.2009, M2
must have issued him letters seeking his explanation and ultimately initiated
domestic enquiry. But M2 has not produced on record any such record. It is
also not case of the M2 that any domestic enquiry was conducted against
the workman on account of his absence.
Therefore, once again the only conclusion that can be drawn is that
M2 terminated services of the workman w.e.f. 01.09.2009.
Before termination of services of the workman, M2 was required to
comply with provisions of Section 25 F of the Act.
Preconditions laid down in Section 25F of the Act read as
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under :
"No workman employed in any industry who has been
in continuous service for not less than one year under an
employer shall be retrenched by that employer until
(a). the workman has been given one month's notice
in writing indicating the reasons for retrenchment and the
period of notice has expired, or the workman has been paid in
lieu of such notice, wages for the period of the notice
(b). the workman has been paid, at the time of
retrenchment, compensation which shall be equivalent to
fifteen days' average pay (for every completed year of
continuous service) or any part thereof in excess of six
months; and
(c). notice in the prescribed manner is served on the
appropriate Government (or such authority as may be
specified by the appropriate Government by notification in
the Official Gazette.)"
15. M2 has not placed on record any document to show compliance with
the aforesaid pre requisites stipulated under Section 25 F of the Act.
Therefore, this court finds that M2 illegally terminated services of the
workman on 1.9.2009.
In case of illegal termination of services of a workman, normal rule is
that in case of illegal termination of services, workman is entitled to
reinstatement with full backwages and continuity in service except in certain
situations. In this regard reference may made to decision in Deepali Gundu
Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D. ED.) & Ors.
LIR/D No. 118/11 11 of 15
(2013) 10 Supreme Court Cases 324.
From the very beginning, it is the case of the workman that ever since
termination of services, he remained unemployed. He so alleged even in his
demand notice dated 13.09.2009 Ex.WW1/7 sent to both the managements.
But M2 has led evidence to prove that workman got employed with
CNC Ltd., A61/A, Sector63, Noida, on 19.7.2011 and he continues to be in
its employment.
Ld. AR(M2) has pointed to the statement of M2W2 wherein it stands
recorded that the workman got employed with M/s CMC Ltd. on 19.7.2011
through its vendor T & M Services Consulting Private Limited, 1, GR, Flr,
Gopal Terrace, Kastur Park Rd, Shimpoli, Borivali(W) and remained so
employed upto 15.8.2012. It is also in his statement that from onwards
16.8.2012, the claimant herein, has been its employee on Direct Contract
Basis. Ld. AR(W) has not been able to point out any fact in the statement of
M2W2 and the documents proved by him that the same do not pertain to the
claimant herein.
16. From the statement of M2W2, it also stands proved that the workman
has been getting emoluments more than Rs.12,000/from CMC Ltd. This
goes to show that workman was gainfully employed w.e.f.19.7.2011 onwards.
However, there is nothing in the statement of WW1claimant to
suggest that the workman remained employed during the period from
1.9.2009 to 18.7.2011. Management has not led any evidence to gainful LIR/D No. 118/11 12 of 15 employment of the workman during this period.
Court finds that the workman has not come to court with clean hands on the point of gainful employment during the period from 19.7.2011 onwards.
Learned AR(M2) has referred to para 5 of the written statement of M2 wherein the claimant was offered that he could resume his duty and that he shall be accommodated at any place where there is vacancy, but the claimant did not accept this offer, and that on this ground also he is not entitled to the relief of reinstatement or backwages. In support of his contention, learned AR(M2) has referred to decisions in State of Punjab v. Jagir Singh, 2004 III CLR 969 (SC); Sonal Garments v. Trimbak Shankar Karve, 2002 III CLR 488 (Bom.); Raju Sankar Poojary v. Chembur Warehouse Co. & Anr., 2003 III CLR 890 (Bombay) and Indiana Engineering Works (Bombay) Pvt. Ltd. V. The Presiding Officer, 5th Labour Court & Ors, 1995 II CLR 890.
In state of Punjab's case (supra ) Hon'ble Apex Court, management had taken steps calling upon the workman to resume duties, while he was absenting from duties.
In Sonal Garments's case, abandonment of job by the workman stood proved. Here, M2 has failed to prove either absence or abandonment of job by the workman, and rather it stands established that M2 illegally terminated the services of the workman. For the same reason, decision in Raju Shankar LIR/D No. 118/11 13 of 15 's case (supra) also does not come to the aid of M2.
In Indiana Engineering Works's case (supra), it was observed that the employee owes a duty to the Industrial Adjudicator to honestly disclose full particulars within his knowledge and further that factum of concealment of alternative employment should disentitle such an employee for any relief.
Here, record does not reveal that workman was gainfully employed anywhere else w.e.f. 01.09.2009 to 18.7.2011. Management offered to workman for the first time on 07.03.2011, in its written statement that he could resume duties. It is true that the workman did not come forward to accept the offer after 7.3.2011 even without prejudice to his rights qua back wages.
But never prior to 7.3.2011 the management asked the workman to resume duties. Had the management taken steps in this regard soon after 1.9.2009 then the result would have been otherwise.
17. Having regard to the above cited decisions, facts and circumstances of this case, the factum of illegal termination of the workman, pain and agony suffered by him during the period his unemployment i.e. 1.9.2009 to 18.7.2011, Court finds that workman is entitled to lumpsum compensation of Rs.2,50,000/(Rupees Two lacs Fifty Thousand only) from Management No. 2, but he is not entitled to the relief of reinstatement in service.
18. In case, Management No.2 fails to pay the aforesaid amount within 15 days from publication of the award, workman shall be entitled to interest @ LIR/D No. 118/11 14 of 15 9 % per annum.
19. Workman is, however, not entitled to any relief against Management No.1.
Award is passed. Claim is disposed of.
Copy of Award be sent to Government of NCT Delhi for information. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT ON 11th Day of December 2015 (Narinder Kumar) Addl. District & Sessions Judge Presiding Officer Labour CourtXIX Karkardooma Courts, Delhi LIR/D No. 118/11 15 of 15