Delhi District Court
Sh Bimlesh Kumar vs Ms Theme Export Pvt Ltd on 29 August, 2023
Page 1 of 16
IN THE COURT OF MS. NAVITA KUMARI BAGHA, PRESIDING OFFICER,
LABOUR COURT07, ROUSE AVENUE DISTRICT COURT, NEW DELHI
LIR No.6661/2016
CNR No. DLCT130070922015
Bimlesh Kumar
S/o Sh. Putti Lal
R/o H.No. 627, Gali No.06,
Govindpuri, Kalkaji,
New Delhi110019
Through:
Delhi Dalit Mazdoor Vikas Sangthan
A176, Rajeev Colony, Transit Camp,
Govindpuri, New Delhi110019
{The requisite details of the Workman in compliance to judgment of
Hon'ble High Court of Delhi titled as "Director General of Works
(CPWD) Vs. Laljeet Yadav & Ors., W.P.(C) No.2540/2021, DOD
16.07.2021" are as follows:
Permanent Address of the Workman:
Mavi Musal, Mahan Sandila, Hardoi, Uttar Pradesh241204.
Present Address of the Workman:
H.No. 577/5A, Gali No.5, Govindpuri, Kalkaji, New Delhi110019.
Mobile Number of the Workman:
7982703693
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Bimlesh Kumar Vs. M/s. Theme Export Pvt. Ltd.
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Name and Mobile Number of the AR of the Workman:
Sh. Sunil Kumar
Mob. No. 9810569681
Details of one of immediate family member of the Workman:
Sh. Santosh Kumar (Nephew)
Mob. No. 7524064853
AADHAR Card Number of the Workman:
2002 9171 7877}
............ Workman
Vs.
M/s. Theme Exports Pvt. Ltd.
F25/1, Okhla Phase2,
New Delhi110020
....... Management
Date of receiving of Reference : 01.05.2015
Date of passing Award : 29.08.2023
AWARD
1. Vide Reference No.F24(165)/Lab./SD/2015/5562 dated 08.04.2015,
the following Reference from Deputy Labour Commissioner was
received on 01.05.2015 for adjudication, sent by him U/Sec.10(1)(c)
and 12(5) of Industrial Disputes Act, 1947 with Govt. of NCT of Delhi,
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Labour Department Notification No. F.1/31/61/616/Estt./2008/7458
dated 03.03.2009 in respect of industrial dispute between the
Workman namely Bimlesh Kumar and Management i.e. M/s. Theme
Export Pvt. Ltd.:
"Whether the services of Sh. Bimlesh Kumar S/o
Sh. Putti Lal have been terminated 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. Notice of aforesaid Reference was issued to the Workman and after
service of notice, Statement of Claim was filed by him on 15.10.2015.
The brief facts as stated in his Statement of Claim are as follows:
1. That the Workman had been working with the
Management on the post of Helper w.e.f. 08.09.2011
and his last drawn wages were Rs.6,000/ per month.
2. That the Workman had worked with utmost sincerity
and honesty and never given any chance of
complaint to the Management.
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3. That the Management had not provided him the legal
facilities viz. appointment letter, attendance card, pay
slip, government holidays, ESI, PF, etc. and when he
raised demand for said facilities, the Management got
annoyed at him and ultimately terminated his
services illegally on 23.11.2013 without giving any
notice and without paying his earned wages.
4. That thereafter he sent a Demand Notice dated
31.05.2014 to the Management but despite service of
said notice, neither any reply was sent by the
Management nor he was reinstated nor his earned
wages were paid.
5. That thereafter he filed a complaint through Labour
Union before the Labour Office, but the Management
refused to reinstate him or to pay his earned wages.
6. That thereafter, he filed Claim before the Conciliation
Officer, where also the matter could not be resolved
due to adamant and noncooperative attitude of the
Management and therefore, the Reference was sent
to this Court for adjudication by the Deputy Labour
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Commissioner.
7. That the Workman had been unemployed since the
day of illegal termination of his services and could
not secure any alternative employment despite best
efforts made by him.
3. Notice of aforesaid Statement of Claim was issued to the
Management and after service of notice, Written Statement was filed
by the Management on 19.04.2017 wherein the Management
submitted that the services of the Workman were never terminated by
the Management, rather it was the Workman who did not report for
duty w.e.f. 26.11.2013 without any information/intimation and/or prior
sanctioned leave and thus left the job on his own, and therefore, he
was treated to have voluntarily vacated the lien on the employment of
the company and his name was removed from the rolls of the
Management company on 28.02.2014. It was further stated that the
Management had never received Demand Notice dated 30.05.2014.
4. Vide Order dated 05.02.2018, the following issues were framed by
the Ld. Predecessor Court:
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1. Whether the workman absented from duties of his own without
informing the management and if so, its effect? OPM
2. Whether the services of workman were terminated illegally
and/or unjustifiably by the management and if so, to what relief is
he entitled? OPW
3. Relief.
5. In order to prove his case, the Workman has examined only one
witness i.e. himself as WW1. But nobody has appeared from the side
of Management to crossexamine him and therefore, opportunity of
Management to crossexamine WW1 was closed. Despite grant of
opportunity, no evidence was led by the Management.
6. The Workman/WW1, in his affidavit of evidence i.e. Ex.WW1/A, has
reiterated and reaffirmed the contents of his Statement of Claim.
While reiterating the averments made in his Statement of Claim, he,
in order to prove his case, has exhibited the following documents:
(i) Ex.WW1/1 - Demand Notice dated 30.05.2014.
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(ii) Ex.WW1/2 - Postal Receipt vide which the aforesaid Demand
Notice was sent to the Management.
(iii) Ex.WW1/3 - Complaint dated 02.06.2014 filed by Workman
before the Assistant Labour Commissioner.
(iv) Ex.WW1/4 - Statement of Claim filed by Workman before the
Conciliation Officer.
(v) Ex.WW1/5 - ESIC Card of the Workman.
(vi) Ex.WW1/6 - Report dated 27.04.2015 of Labour Inspector.
(vii) Ex.WW1/7 - Official Identity Card of the Workman issued to
him by the Management.
7. I have heard the final arguments from Sh. Sunil Kumar, AR of
Workman, but nobody has come forward from the side of
Management to address arguments. I have perused the record.
8. Before proceeding further, it is pertinent to mention here that so far as
the relationship of employeeemployer between the Workman and
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Management is concerned, the same has been categorically admitted
by the Management in its Written Statement.
9. My issuewise findings are as under:
ISSUE NO.1
Whether the Workman absented from duties of his own without
informing the management and if so, its effect?
10. The onus to prove this issue was upon the Management. Though the
Management in its Written Statement had stated that the
Management had never terminated the services of the Workman,
rather he himself had left the job w.e.f. 26.11.2013, but the
Management has failed to discharge its onus to prove this issue as it
has failed to lead any evidence despite grant of opportunity. Now
even if it is presumed for the sake of arguments that the Workman
himself had stopped coming to the office, then it was the duty of the
Management to ask him to join duty because it is settled law that if a
workman fails to report for duty, the Management is bound to call
upon him to join duty. It has been held by Hon'ble Delhi High Court in
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M/s. Fateh Chand Vs. Presiding Officer, Labour Court & Anr.,
2012(3) SCT 724 as follows:
"It is also no more res integra that even in a case of
unauthorized absenteeism or to prove abandonment
of service on the part of the workman the
management must place on record necessary
material to prove that enough efforts were made by it
to call upon the workman to resume back his duty
and the workman has shown his clear reluctance for
the same."
11. But in the present case, the Management has nowhere stated that it
had asked the Workman to join duty during the period of his
absenteeism. Nor is it a case of the Management that it had issued
any notice during the said period to the Workman to join duty.
12. It has been held by Hon'ble Delhi High Court in Municipal
Corporation of Delhi Vs. Sukhvir Singh & Ors., 53 (1994) DLT 821
that when the employment of the Workman is not for a specific
period, then the denial of employment to him by the
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employer/management shall have to be only according to law and if
the Workman has abandoned the employment, certainly that could
have been a ground for holding an enquiry against him and passing
appropriate order.
13. It has been held by Hon'ble Delhi High Court in Fateh Chand's case
(supra) as follows:
"It is also a settled legal position that abandonment of
service is different from absenteeism. Abandonment
of service is the voluntarily relinquishment of one's
services with the intention not to resume the same. It
is a matter of inference to be drawn from the facts and
circumstances of each case and mere absenteeism
for a continuous period does not mean that the
employee has abandoned his service. The
management has to bring on record sufficient
material to show that the employee has abandoned
the service and abandonment cannot be attributed to
the employee without there being sufficient evidence.
On the failure to report for duty, the management has
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to call upon the employee and if he refuses to report,
then an enquiry is required to be ordered against him
and accordingly action taken. In the absence of
anything placed on record by the petitioner
management, no presumption against the respondent
can be drawn."
(underlining added)
14. Thus, it is clear that when any workman abandons the job, then it is incumbent upon the management to call him upon to report for duty and on his refusal to do so, to hold enquiry against him. But in the present case, no evidence of any such enquiry has been led by the Management. Nor any evidence is produced on record in support of any effort made by the Management to call upon the Workman to join his duty. Though, it has been mentioned in the Written Statement that the name of the Workman has been deleted from the muster rolls of the Management company, but no enquiry qua Workman before deleting his name from the muster rolls has been pleaded or proved on record.
15. Hence, in view of the aforesaid analysis, it is clear that the LIR No.6661/2016 Bimlesh Kumar Vs. M/s. Theme Export Pvt. Ltd. Page 12 of 16
Management has utterly failed to prove the Workman himself had absented from duties of his own without informing the management or left the job on his own and therefore, this issue is decided in favour of the Workman and against the Management.
ISSUE NO.2 Whether the services of Workman were terminated illegally and/or unjustifiably by the Management and if so, to what relief is he entitled?
16. The onus to prove this issue was upon the Workman. The Workman/WW1 has deposed that he was working with the Management as Helper w.e.f. 08.09.2011 and his last drawn wages were Rs.6,000/ per month and that he had worked sincerely and honestly and never given any chance of complaint to the Management, but the Management had not provided him the legal facilities viz. appointment letter, annual leave, minimum wages, attendance register, leave & leave encashment, overtime wages, ESI, PF, etc. and when he demanded for the said facilities, the LIR No.6661/2016 Bimlesh Kumar Vs. M/s. Theme Export Pvt. Ltd. Page 13 of 16
Management illegally terminated his services on 23.11.2013 without assigning any reason and that he had sent Demand Notice dated 30.05.2014 i.e. Ex.WW1/1 to the Management and filed complaint dated 02.06.2014 i.e. Ex.WW1/3 before the Assistant Labour Commissioner, but the Management did not reinstate him and therefore, he filed his Statement of Claim Ex.WW1/4 before the Assistant Labour Commissioner, but due to noncooperative attitude of the Management, the matter could not be settled. He has further deposed that from the date of illegal termination of his services, he is completely unemployed and could not get any employment despite various efforts made by him.
17. The Management has not come forward to crossexamine Workman/WW1. It is settled law that if the opposite party fails to crossexamine a witness on a certain point, then the said party is deemed to have accepted the same as true. It is held by Hon'ble Supreme Court in Sarwan Singh Vs. State of Punjab, AIR 2002 SC 3652, "It is a rule of essential justice that whenever LIR No.6661/2016 Bimlesh Kumar Vs. M/s. Theme Export Pvt. Ltd. Page 14 of 16
opponent has declined to avail himself of the opportunity to put his case in crossexamination, it must follow that evidence tendered on that issue ought to be accepted."
It is also held by Hon'ble High Court of Delhi in Satyendra Kumar Sharma Vs. Jitender Kudsia, 2005 DLT 498, "Section 137 and 138 of Evidence Act If a witness is not crossexamined on a particular point, the opposite party must be deemed to have accepted truth of the statement."
18. Since in the present case the WW1 was not crossexamined, so, the aforesaid points, as stated by him in his testimony, are deemed to be admitted by the Management.
19. So, in this scenario when the testimony of Workman/WW1 has gone unchallenged and uncontroverted, I do not have any reason to disbelieve his testimony and accordingly, hold that the Management had illegally terminated the services of the Workman on 23.11.2013 without giving him any notice or notice pay or retrenchment LIR No.6661/2016 Bimlesh Kumar Vs. M/s. Theme Export Pvt. Ltd. Page 15 of 16
compensation in accordance with Sec.25F of Industrial Disputes Act, 1947. Hence, this issue is also decided in favour of the Workman and against the Management.
Relief:
20. The Workman has prayed in his Statement of Claim for his reinstatement with full back wages and all consequential benefits. The Hon'ble Supreme Court has held in landmark judgment titled as Deepali Gundu Surwase Vs. Kranti Junior Adhyapak & Ors., 2013(10) SCC 324, that in cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. Since the Workman has been able to prove that his services have been illegally terminated by the Management, so, the relief sought by him in his Statement of Claim is allowed and Management is directed to reinstate the Workman in service with continuity of service and full back wages along with all other consequential benefits.
21. Award is passed accordingly. Reference stands answered in LIR No.6661/2016 Bimlesh Kumar Vs. M/s. Theme Export Pvt. Ltd. Page 16 of 16
aforesaid terms. Copy of this Award be sent to Labour Commissioner for publication. Case file be consigned to the Record Room.
Digitally
signed by
NAVITA
NAVITA KUMARI
KUMARI BAGHA
BAGHA Date:
(Announced in open 2023.08.29
17:03:55
Court on 29.08.2023) +0530
(Navita Kumari Bagha)
Presiding Officer, POLC07,
Rouse Avenue District Court, New Delhi
LIR No.6661/2016
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