Delhi District Court
Sh. Krishan Pal Sharma @ Kishan vs M/S Rachna Sagar Pvt. Ltd on 17 December, 2018
IN THE COURT OF SHRI UMED SINGH GREWAL,
PILOT COURT / POLCXVII, ROOM NO. 514:
DWARKA COURTS: NEW DELHI
LIR No. 683/2018
Sh. Krishan Pal Sharma @ Kishan
S/o Sh. Lekh Raj Sharma,
Age 46 years
R/o : H365, Village & Post Office Surana Distt.
Ghaziabad, U. P.
(Mobile No. 7248049199)
C/o Sh. Mahesh Yadav, Advocate
Chamber no. 244, Patiala House Courts,
New Delhi110001
(Mobile No. 9899823484) ..............Workman
Versus
M/s Rachna Sagar Pvt. Ltd.
458283/15, Near MTNL Office, Darya Ganj,
New Delhi 110002
(through its Managing Director
Sh. Neeraj Gupta, Mobile No. 9810115185
Ph. No. 43585858, 23285568) .........Management
DATE OF INSTITUTION : 21.03.2018
DATE ON WHICH AWARD RESERVED : 12.12.2018
DATE ON WHICH AWARD PASSED : 17.12.2018
A W A R D :
1.Vide Order No. F.24(72)/18/Ref./CD/Lab./369 dated 15.03.2018, issued by Government of NCT of Delhi, a reference LIR No. 683/2018 1/21 was sent to this Court with the following terms : "Whether services of Sh. Krishan Pal Sharma @ Kishan S/o Sh. Lekh Raj Sharma Age 46 years is absenting from his duties at the transferred place or his services have been terminated in the garb of transfer illegally and/or unjustifiably by the management and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. Claimant's case is that the Management is a leading publisher in educational books as it develops and sells them and its turn over in 2016 was about 75 crores. It is profit making organization and its strength is around 250 workmen in Delhi and in NCR. He had joined the Management as Billing Clerk/PRO on 01.11.2007 at the last drawn salary was Rs.23,500/ per month. His duty was to file correspondence, write ledgers and to make entries, to receive phone calls, mail and to file sale forms. But the Management had not issued/offered him any appointment letter for which he had requested several times. He had asked the Management to hike his salary as the present salary was not meeting his needs and requirements but the Management did not pay any heed. It did not use to pay salary for leaves. Whenever he was on leave, it used to deduct wages for that day and whenever he was late by 15 minutes, it used to deduct the whole day salary. The Management was putting all kinds of pressure by doing those misdeeds but he did not leave the job due to increasing needs and requirements of his family LIR No. 683/2018 2/21 as he was the sole bread earner of his family. Due to those mis deeds and omissions by the Management, he went into depression and mental stress as result of which his health started deteriorating day by day. He became ill due to which he could not attend his duty from 16.06.2017 to 23.07.2017. He had sent medical documents to the Management intimating that he was ill. When he visited the premises of the Management on 24.07.2017 to join back duty, the Management did not assign him any job and in this way, his service was terminated without any reason, without notice and without tendering notice pay and retrenchment compensation. He had filed a complaint against the Management on 25.07.2017 to SHO, PS Darya Ganj but no action was taken against it. A false reply dated 14.08.2017 was given by the Management to his legal notice dated 31.7.2017 mentioning false facts that he had been transferred and that transfer letter was sent to his residential address on 18.06.2017 which he refused to receive intentionally and thereafter a copy of the same was emailed to him on 26.06.2017. He had come to know from that reply for the first time that the Management had taken a false plea of his transfer. He is unemployed since termination of service.
3. Written statement is to the effect that appointment letter and service conditions were supplied to the claimant at the time of LIR No. 683/2018 3/21 appointment. Both documents were signed by him in which there is a clause No. 5 to the effect that he may be transferred from one job to another, from one department to another and from one establishment to another, if required by the Management. The Management had received request from its Bangalore office for additional staff. The claimant was one of the experienced employee and hence, he was transferred to that office and transfer letter was sent to him by post on 08.06.2017 and a copy of the same was also emailed to him on 26.06.2017 on his email ID "[email protected]" The claimant kept mum and chose not to reply the transfer letter. Rather he filed false medical certificates so that he may not be asked to join at the transferred place. His acts showed that he wanted to work as per his own terms and conditions. His service was never terminated and in fact, and he abandoned the job by not joining at the transferred place.
4. Following issues were framed on 04.05.2018 :
1. As per terms of reference.
2. Relief.
5. In order to substantiate the case, the claimant tendered his affidavit in evidence as Ex.WW1/A mentioning all the facts stated in statement of claim. He relied upon following documents: LIR No. 683/2018 4/21
1. Ex.WW1/1 is joint photograph of the family of the claimant.
2. Ex.WW1/2 (02 pages) is copy of payslip of the claimant for the months of April and May, 2017.
3. Ex.WW1/3 is copy of payslip for the month of June, 2017.
4. Ex.WW1/4, Ex.WW1/5, Ex.WW1/6 and Ex.WW1/7 are the medical certificates of the claimant.
5. Ex.WW1/8 is prescription slip of the claimant issued by Satyam Clinic dated 14.07.17.
6. Ex.WW1/9 are seven postal receipts vide which medical certificates were sent to management.
7. Ex.WW1/10 (02 pages) is print out of email dated 19.07.17 sent by claimant to management. (objected to by ARM on the ground of mode of proof).
8. Ex.WW1/11 (03 pages) (OSR) is copy of complaint dated 25.07.17 to SHO PS Dariyaganj.
9. Ex.WW1/12 (03 pages) is legal notice dated 31.07.17.
10. Ex.WW1/13 (02 pages) is reply dated 14.08.17 to legal notice.
11. Ex.WW1/14 (05 pages) (OSR) are copies of Aadhar Cards of my family members.
12. Ex.WW1/15 is certificate under Section 65B of Indian Evidence Act.
13. Mark W1 is copy of certificate dated 23.05.11 issued by management to claimant.LIR No. 683/2018 5/21
14. Ex. WW1/16 (already marked W1) is copy of certificate dated 23.05.2011 issued by management to claimant.
6. The management examined three witnesses. MW1 Shri Deepam Mittal repeated the contents of the WS and he relied upon following documents :
1. Ex.MW1/1 is board resolution in my favour.
2. Ex.MW1/2 is email dt. 06.06.17 sent by Mr. Ajay Sharma, Branch Manager, Banglore to Head Office in Delhi.
3. Ex.MW1/3 is transfer letter dated 08.06.17.
4. Ex.MW1/4 is postal receipt dated 08.06.17 vide which transfer letter was sent to claimant by post.
5. Ex.MW1/5 is mail dated 26.06.17 sent by head office Delhi to claimant.
6. Ex.MW1/6 is already torn envelope which is found containing two papers.
7. Ex.MW1/7 is the first paper which was found containing in Ex.MW1/6.
8. Ex.MW1/8 is the second paper which was found containing in Ex.MW1/6.
9. Ex.MW1/9 is a stapled already torn envelope, which is found containing one paper.
10. Ex.MW1/10 is the paper which was found placed in envelope LIR No. 683/2018 6/21 Ex.MW1/9.
11. Ex.MW1/11 is his certificate u/s 65B of Indian Evidence Act.
MW2 Sh. Gaurav Yadav and MW3 Sh. Deepak Kumar Shukla have been examined by the management to prove that the appointment letter accompanied terms and conditions of service was issued by the Management to the claimant also as these persons had joined the Management in the same month in which the claimant had joined the service.
MW2 Sh. Gaurav Yadav deposed that he had joined the Management on 13.11.2017 as DTP Operator. The claimant was transferred from Delhi to Bengaluru office as he was an experienced and old employee and there was requirement of such employee at Bangalure office. The transfer was routine job for the company. He next deposed that the claimant was issued appointment letter/agreement by the management and same was signed by him at the time of joining.
Evidence of MW3 Sh. Deepak Kumar is nothing more than the deposition of MW2.
Issue no. 1
7. The first argument of Ld. ARW is that the claimant was ill from 16.06.2017 to 23.06.2017. He took treatment from four LIR No. 683/2018 7/21 doctors and sent copies of medical certificates to the management. Initially, he was suffering from fever and then he was treated for mental illness like depression etc. He had gone into depression because the management was not hiking his salary. When he reported to the management to join back duty after recovery, no work was assigned him and in this way, his service was terminated. He next argued that the claimant had sent demand notice dated 31.07.2017 to the management for reinstatement. Vide reply Ex. WW1/13 dated 14.08.2017, the management took the plea first time that the claimant had been transferred to Bengaluru. He came to know from that reply that he had been transferred. In fact, there was no transfer. Had he been transferred, the management would have definitely sent him transfer letter. He did not receive any transfer letter purporting to be sent by management by post on 08.06.2017 and 28.06.2017. He did not receive transfer letter vide any mail dated 26.06.2017.
On the other hand, Ld. ARM argued that the management had added Andhra Pradesh and Telangana States' operations in its Bengluru office. Due to that reason, Bengaluru Office had sent requisition mail Ex. MW1/2 on 06.06.2017 that a person be sent to that office. Consequently, the claimant was transferred vide transfer letter dated 08.06.2017 Ex. MW1/3. He refused to take delivery of the letter and hence, the same was sent to him by post but he LIR No. 683/2018 8/21 refused to take delivery in connivance with postman. He had come to know of the transfer and that is why he got prepared false medical papers and sent copies of the same to it. In response, the management sent him mail Ex. MW1/5 dated 26.06.2017 that he had been transferred to Bangalore where he was to join by 19.06.2017. As the management had received his medical papers, the same were treated genuine and his medical leaves were accepted and he was directed to report Delhi office on or before 29.06.2017 so that his joining to Bengaluru branch be rescheduled accordingly. Copy of transfer letter was sent to him by post on 28.06.2017 also but he refused to take delivery of the same. He neither appeared before Delhi branch nor joined at the transferred place.
8. The claimant had sent demand notice Ex. WW1/12 dated 31.07.2017 to the management that it was not paying him increment which was due since April 2017 and when he requested for payment of increment, it started harassing and torturing him, due to which he became sick and had to take medical leaves due to high Blood Pressure and depression. The management replied notice vide reply Ex. WW1/13 dated 14.08.2018 that the claimant had been transferred and he had intentionally refused to receive the transfer notice which was sent on 08.06.2017 on his residential address. It was emailed to him on 26.06.2017 also. It is further mentioned LIR No. 683/2018 9/21 that the claimant had knowledge of the transfer and he failed to join at the transferred place.
The management had sent him transfer letter Ex. MW1/18 dated 08.06.2017 by placing the same in envelope Ex. MW1/6 but the same was received back undelivered with the endorsement by the postman that when he visited the address on 14,15,16 and 17.06.2017, the claimant was not found at home. Thereafter, the management sent him transfer letter vide covering letter Ex. MW 1/10 dated 28.06.2017 by placing the same in envelope Ex. MW1/9 but the same was also received back undelivered with the endorsement that when the postman visited the said address on 3,4,5,6 and 7.07.2017, the claimant was not found there. Before it, the management had sent him mail Ex. MW1/5 dated 26.06.2017 timed at 05:23 p.m. mentioning that he was knowing that he had been transferred from Delhi head office to Bengaluru branch and that copy of transfer letter was sent to him on 08.06.2017 in which it was mentioned that he will have to report to Manager Ajay Sharma at Bengaluru branch on 19.06.2017. It is further mentioned that the said letter had been returned by Indian Postal Service undelivered. It is further mentioned that the claimant had sent management on 21.06.2017, an application for leaves from 19.06.2017 to 28.06.2017 on the ground of illness. It is further mentioned that the management had accepted his leaves with the LIR No. 683/2018 10/21 assurance that he would return to Delhi head office on or before 29.03.2017 so that his joining at Bengaluru branch may be rescheduled accordingly. During arguments, the ARW had submitted that the claimant had not received mail. But that argument is quite absurd because it has been admitted by claimant in crossexamination that his Email ID is [email protected]. Perusal of mail Ex. MW1/5 shows that it was sent to him on that very address. So, the claimant might have definitely received the mail and after receiving the mail, he might have known that he had been transferred to Bengaluru branch where he was to report till 19.06.2017 and that he had been granted medical leaves up to 28.06.2017 and that he should report to Delhi office on 29.06.2017 so that his joining at Bengaluru branch may be rescheduled.
The medical documents Ex. WW1/4 to Ex. WW1/8 are not free from doubt due to their time and due to not placing on record the investigation reports, prescription slips and purchase receipt of medicines. As per first medical paper Ex. WW1/4 dated 18.06.17, the claimant was suffering from pain and he took treatment from a BAMS doctor of Murad Nagar, Ghaziabad. As per second medical document Ex. WW1/5 dated 19.06.2017, he was suffering from acute bronchitis and disphonia. So, his illness changed from fever to bronchitis and disphonia in only one day. Second certificate was issued by Dr. Ram Gopal of Murad Nagar. Third document is dated LIR No. 683/2018 11/21 29.06.2017 Ex. WW1/6 in which it is mentioned that the claimant was suffering from bronchitis and fever and he was prescribed for bed rest for 15 days. This document has been issued by Primary Health Centre, Surana, Ghaziabad. Forth document dated 14.07.2017 issued by Dr. M. Hussain is not completely legible as illness of the claimant is not decipherable. The claimant has not placed on record the investigation reports to suggest as to from which kind of fever he was suffering. He has also not placed on record the receipt of purchase of medicines. Prescription slips by three doctors is missing. Absence of all these documents are making the medical papers Ex. WW1/4 to WW1/8 doubtful. It is beyond comprehension why the claimant changed four doctors.
As per the transfer letter, he was to be relieved from Delhi head office on 15.06.2017 and he was to report to Bengaluru Branch on 19.06.2017. The first medical paper is dated 18.06.2017. Timing of that medical paper coupled with above reasons shows that the claimant got prepared the medical papers just to escape from joining at the transferred place. Date of first medical paper i.e. 18.06.2017 shows that the claimant was definitely aware that he had been transferred to Bengaluru branch because he was to report there on 19.06.2017. He prepared the medical paper one day in advance so that he may take plea that he could not join at the transferred place as he was ill. So, there is no substance in the arguments of Ld. LIR No. 683/2018 12/21 ARW that the claimant was not transferred to Bengaluru office at all and that he came to know of such transfer fist time only after perusal of reply Ex. WW1/13 of the management.
9. The second argument of Ld. ARW is that as per requisition mail Ex. MW1/2, the management had started fresh operations in Andhra Pradesh and Telangana states. The management was not doing business in those states when the claimant had joined it and hence, it was not competent to transfer him to Bangalore branch.
On the other hand, Ld. ARM argued that management had not started fresh business in Andhra Pradesh and Telangana States. Rather, the operations of Andhra Pradesh and Telangana States were affiliated to Bangalore office as is apparent from mail Ex. MW1/2. The management was already doing business in those states. So, the claimant is not justified in arguing that the management had started doing business in Andhra Pradesh and Telangana after his joining.
10. The Bengaluru branch of the management had sent Delhi head office mail Ex. MW1/2 on 06.06.2017 with following contents: "I request you to allow an appointment of staff for Bengaluru office at order desk because we have added AP and Telangana LIR No. 683/2018 13/21 States operation from Bengaluru office and work profiles of present staff also is going loaded. This is for your approval."
Above mail shows that the business carried out by management in Andhra Pradesh and Telangana States was not new and rather, the business was added to Bengaluru office recently. That mail completely cuts to size the argument of Ld. ARW that the management, as per mail Ex. MW1/2, had started business in Andhra Pradesh and Telangana newly i.e. after joining of the claimant and due to that reason, the management was incompetent to transfer him Bengaluru branch.
11. Third arguments of ARW is that during the days of demonetization occurring in November 2016, the management had deposited cash amounting to Rs. 2 lacs in the bank accounts of its employees. After deposit, the employees were forced to withdraw and handover that amount to the management. The management wanted to deposit an amount of Rs. 2 lacs in claimant's account also but he had refused. Due to that reason, his service was terminated in the garb of transfer. In this regard, he heavily relied upon the document mark W3 and mark W4.
On the other hand, Ld. ARM argued that the claimant has not taken that plea in WS. Rather, the plea in WS is that the LIR No. 683/2018 14/21 management was not hiking his salary, it did not use to give salary for leaves and that it used to mark absent for the whole day if he late by 15 minutes. The present plea is after thought. Moreover, the claimant has failed to prove that plea as Mark W3 and Mark W4 are undated and do not indicate that, vide those documents, the management had deposited cash in November 2016 in the bank account of the employees whose names are mentioned in Mark W 3 and W4.
12. The reason of termination of service as argued by ARW is that the management, in order to make its black money as white, wanted to deposit a cash of Rs. 2 lacs in his bank account during the days of demonetization but he had refused. In order to prove that plea, the management is heavily relying upon two papers Mark W3 and W4. Those papers are containing the names of 15 persons and against their names, amount from 1.5 lacs to 2 lacs is mentioned. Those papers are on the letter head of the management. But original of those papers have not been placed on record. The claimant has failed to prove that Mark W3 and W4 are bearing the signatures of Anil, Manager Accounts at points A and seal of the management at point B. It has also failed to prove 15 persons whose names are mentioned in Mark W3 & W4 were employees of the management. Biggest draw back of those documents is that both are LIR No. 683/2018 15/21 undated. So, the claimant has failed to prove that the documents are of November 2016 i.e. to the period when demonetization was in force.
The additional reason of not believing that plea is that it is beyond pleading. In statement of claim, the workman has mentioned that the management did not hike his salary, did not pay him wages for leaves and used to deduct wages for the whole day even if he was late by 15 minutes. He had not uttered a single word in statement of claim that his service was terminated as he had not allowed management to misuse his bank account during the demonetization period. That reason of termination of service is also missing in his demand notice Ex. WW1/12 dated 31.07.2017.
13. The last and final argument of ARW is that the management had not delivered appointment letter and service conditions to the claimant at the time of appointment or during his whole tenure. Their copies have been placed on record by the management as Mark M5 and M6 with the plea that the same were bearing his signature at point A. But those documents are not bearing his signatures. The management did not examine any hand writing expert to prove that those documents are bearing his signatures. So, the management has failed to prove appointment letter and service conditions. At the time of joining, he was told that his job was not LIR No. 683/2018 16/21 transferable. The management has not placed on record any document to show that the job was transferable. As per model standing orders either the management should have taken his consent or there should be express agreement to the effect that the management was empowered to transfer him from one state to another. His consent and / or express agreement was not in existence. So, the management was not competent to transfer him from Delhi to Bangalore .
On the other hand, Ld. ARM argued that MW1, MW2 and MW3 have proved that the appointment letter and service conditions were delivered to the claimant at the time of appointment. There is a clause no. V in service conditions that his job was transferable. Those documents are bearing his signatures and hence amount to express agreement between parties empowering management to transfer him from one state to another.
14. The management is heavily relying upon appointment letter MarkM5 and terms and conditions of the service Mark M6. Management's case is that the claimant was given appointment letter Mark M5 on date of joining. There is clause no. V in Mark M6 to the effect that the claimant was liable to be transferred from one job to another job or from one department to another department and from one establishment to another establishment, if LIR No. 683/2018 17/21 required by the company. Both these documents were put to the claimant in crossexamination and he answered that those were not bearing his signatures at point A. His contention is that those papers were not bearing his signatures as those were never supplied to him at any point of time. In fact, the management had intimated him at the time of appointment that his job shall remain in Delhi. In order to prove that appointment letter and terms and conditions of service were supplied to him at the time of appointment, the management examined two witnesses i.e. MW2 and MW3. They deposed that they had also joined the management in the same month in which the claimant had joined and that they were also issued appointment letters. But these witnesses have failed to prove that appointment letter was issues to the claimant because they admitted in cross examination that the appointment letter was never issued by the management to claimant in their present. They have also not placed on record their own appointment letters to prove that it was the general practice of the management to issue appointment letters to its employees.
It is mentioned in clause no. 4 of Schedule IB of Industrial Employment (Standing Orders) Industrial rules 1946 that a workman may be transferred from one shop or department to another or from one station to another or from one establishment to another under the same employer, if there is exigency of work. But LIR No. 683/2018 18/21 there is a second proviso to the clause as per which if the workman is to be transferred from one State to another, such transfer shall take place either with the consent of the workman or where there is a specific provision to that effect in the appointment letter.
It has already been held that the management had not delivered appointment letter and transfer of condition of service to the claimant because those are not bearing his signatures. The management did not place on record any other document which may show that claimant's consent was obtained before transferring him to Bengaluru Office. It has failed to prove any express contract to that effect between it and claimant though it has successfully proved with the help of mail Ex. MW1/2 that it required one more employee in its Bengaluru Office.
14. In view of above discussion, it is held that management was not competent to transfer claimant to Bengaluru Branch from Delhi head office. It is admitted case of both parties that the claimant did not report at the transferred place i.e. Bengaluru but it is of no consequence because his transfer was not justified.
It is not the case of the management that it had issued any notice or tendered notice pay and retrenchment compensation to the claimant before terminating his service. By acting in that manner, the management has violated the provisions of section 25F of ID LIR No. 683/2018 19/21 Act 1947.
Issue No. 2:
15. It has been deposed by the claimant that he is jobless since termination of service. One of the prayer in statement of claim is that he be reinstated. But during final arguments, Ld. ARW submitted that mutual trust and belief between both parties is missing and instead of granting the relief of reinstatement, adequate compensation be granted to the claimant. In view of the arguments of ARW, the relief of reinstatement is not granted to the claimant.
It is mentioned in statement of claim that the claimant joined the management on 01.11.2007. To the same effect is his depostion. That fact has not been denied in written statement. Claimant's plea is that his service was terminated on 24.07.2017 by refusing job. But it has already been held that claimant had come to know of his transfer after receipt of mail Ex. MW1/5 on 26.06.2017 vide which he was requested to contact the Delhi head office on or before 29.06.2017. Despite it, he did not contact Delhi office. In this way, he had worked only up to 29.06.2017. Length of service from 01.11.2007 to 29.06.2017 comes out to 9 years and 8 months. The claimant deposed his last drawn salary as Rs. 23,500/. That fact has admitted in written statement and is mentioned in salary slip Ex. WW1/2 for April 2017. Taking into account the length of service LIR No. 683/2018 20/21 and last drawn salary, the management is directed to pay claimant lumpsum compensation of Rs. 5,00,000/. The management is directed to pay that amount to claimant within one month from today failing which it shall be liable to pay interest @ 9% per annum from today till realization. Parties to bear their own costs. Award is passed accordingly.
16. The requisite number of copies be sent to the Govt. of NCT of Delhi for publication of the award. File be consigned to record room.
Dictated & announced (UMED SINGH GREWAL) in the open Court on 17.12.2018. PILOT COURT/ POLCXVII DWARKA COURTS, NEW DELHI LIR No. 683/2018 21/21