Delhi District Court
The Workmen vs . on 4 August, 2011
IN THE COURT OF SH. MAHAVIR SINGHAL: POIT,
KARKARDOOMA COURTS, DELHI
I.D. No. 40/06
The Workmen
Sh. Om Prakash & Others
495/35, Onkar Nagar, Tri Nagar,
Delhi
Vs.
The Management
1.M/s Punjab Scientific Industries
2. M/s Standard Scientific Industies 315/12, Shahzada Bagh, Daya Basti Industrial Area, Delhi-35 Date of institution 15.09.2006 Date of reserving award 25.07.2011 Date of award 04.08.2011 Ref : F.24 (822)/06/Lab./2722-2726 dated 14.09.2006. AWARD
1. Workmen have raised the present industrial dispute through Union and on failure of conciliation proceedings, GNCT of Delhi referred the dispute to this Tribunal for adjudication in following terms of reference:-
I.D. No. 40/06 Page 1 of 14
''Whether M/s Punjab Scientific Industries and M/s Standard Scientific Industries is one entity i.e M/s Punjab Scientific Industries as contended by the workmen and if so, whether the workmen shown in the annexure are entitled to the bonus and if so, from what date and at what rate and what directions are necessary in this respect ?"
2. Statement of claim has been filed by the workmen, wherein it is stated that M/s Punjab Scientific Industries manufacture testing instruments for testing soil, cement concrete, bituman and wood etc. and more than 10 workers were employed in this factory and power is used for running the machines, thus, it is a factory. It is stated that Shri Balwant Singh Ji, Proprietor of this factory was paying one month salary as bonus till year 2000 but thereafter, he has stopped paying bonus. It is further stated that workmen raised the demand for bonus with the labour department. It is alleged that though Sh. Balwant Singh did not come for meeting before the Conciliation Officer but advised him that two firms named M/s Punjab Scientific Industries and M/s Standard Scientific Industries were operating from the same premises and only 14 workers were working and, therefore, the payment of Bonus Act does not apply. It is stated that Mr. Balwant Singh admitted that their Sales-Tax Numbers are different and their registration numbers are different. It is stated that their records are also different but wrongly alleged that both are working in the same premises.
3. It has been stated in the statement of claim that all other facts advised by Shri Balwant Singh are correct except that two factories are working from the same premises i.e 315/12, Shahzad Bagh. It is stated that M/s Punjab Scientific Industries and M/s Standard Scientific I.D. No. 40/06 Page 2 of 14 Industries are two different entities in all respects. They have got nothing in common and their proprietors are different, their Sales-Tax/VAT Numbers are different, their place of operation are different. It is stated that employees named in the reference are working for M/s Punjab Scientific Industries at 315/12, Shahzada Bath and they have nothing to do with M/s Standard Scientific Industries which is not operating from 315/12, Shahzada Bagh. It is stated that only M/s Punjab Scientific Industries is operating its factory at 315/12 Shahzadad Bagh, Daya Basti and employees (all the 12 workmen) are working in this factory named in the reference. It is stated M/s Punjab Scientific Industries is owned by Shri Balwant Singh who started it in the year 1975 from 288, Onkar Nagar, Tri Nagar, Delhi-110 035. Mr. Balwant Singh vacated the factory premises at 288, Onkar Nagar and shifted to 315/12, Shahzada Bahgh, Daya Basti, Delhi in the year 2002. Though factory has shifted from Onkar Nagar to 315/12 Shahzada Bagh but its address with Sales Tax/VAT Department continues to be at the old place namely 288, Onkar Nagar. It is further stated that M/s Standard Scientific Industries is owned by Taranjit Singh & Sh. Tarsem Singh with effect from 01.04.2001 and is operating from 122/15 Onkar Nagar, Delhi-110 035. Originally this factory was started by Shri Gurjeet Singh in the year 1990 at NW 42, Vishnu Garden, Delhi and Sh. Gurjeet Singh shifted this factory to 315/18, Shahzada Bagh, Delhi in the year 1995 and entered into partnership with Sh. Tarsem Singh. Sh. Gurjeet and Sh. Tarsem Singh vacated the premises and shifted the factory to 122/15, Onkar Nagar, where it continuous to operate. On 01.04.2001, Sh. Gurjeet Singh left the firm and Shri Taranjit Singh joined as a partners. It is stated that now, I.D. No. 40/06 Page 3 of 14 Shri Tarsem Singh and Sh. Taranjit Singh are running this factory in partnership at 122/15, Onkar Nagar, Delhi and so, there is nothing common in two firms.
4. In the WS filed by the management, it is stated that M/s Punjab Scientific Industry and M/s Standard Scientific Industries are separate concerns having separate entities. It is stated that M/s. Punjab Scientific Industries is functioning at the first floor of the premises bearing No. 315/12, Shahzada Bagh, Daya Basti, Delhi and Sh. Balwant Singh is the sole proprietor of the said concern and usually 4-5 workers are working under him in the said firm and the number of workers in this concern has never been 10 to 11 or so and the Bonus Act is not applicable in the said concern. It is stated that M/s. Standard Scientific Industries is being run separately and independently on the basement of premises bearing No. 315/12, Shahzada Bagh, Daya Basti, Delhi and it is a partnership concern having S/Shri Tarsem Singh and Tarnjit Singh as parters of the same. It is stated that the above-said concerns have no concern or connection with each other and the workman has intentionally and malafidely tried to show both the above said concerns as single unit and the workman is trying to amalgamate the workers of both the concerns and to show the exaggerated number of workers with ulterior motives to bring both the concerns under the Bonus Act which is not applicable in the instant case. The management has denied that more than 10 workers were employed in the factory or that power is used for running the machines and further denied that management is running factory. It is stated that 04 workers were working with M/s. Punjab Scientific Industry I.D. No. 40/06 Page 4 of 14 and 05 workers were working with M/s. Standard Scientific Industries and both the concerns are independent and have separate entities and have no concern or connection with each other. The management has denied all the allegations made in the statement of claim and prayed that the statement of claim be dismissed with costs.
5. Workmen have filed rejoinder, wherein they have reiterated the stand taken in their statement of claim and denied the averments made in the written statement.
6. On the basis of pleadings of the parties, following issue was framed by Ld. Predecessor on 07.02.2007:-
1. Whether the cause of workmen has been duly espoused ?
2. Whether M/s Punjab Scientific Industies and M/s Standard Scientific Industries are one entity ?
3. Whether the workmen mentioned in Annexure "A' to the terms of reference are entitled to the bonus and if so, from what date and at what rate ?
4. As per terms of reference.
7. Workman Sh. Om Prakash has examined himself as WW 1. In his affidavit he has reiterated the contents of statement of claim. In his cross-examination he has denied the suggestion that two separate firms by the name of Punjab Scientific Industries and M/s Standards Scientific Industries have been operating from premises No. 315/12, Shahzada Bagh, Daya Basti, Delhi. He has admitted that M/s. Sceintific Industries was I.D. No. 40/06 Page 5 of 14 being run in the year 2000 at the address of 315/18, Shahzada Bagh, Daya Basti, Delhi but denied the suggestion that in the year 2001, it was shifted from there to the basement of 315/12, Shazada Bagh, Daya Basti, Delhi. WW 1 has denied that there have never been more than 4/5 workers with M/s Punjab Scientific Industries. It is denied that management namely M/s Standard Scientific Industries is operating from the basement at 315/12 and that he has included number of workers working there to show them as the employees of M/s Punjab Scientific Industries. It is admitted that M/s Punjab Scientific Industries and M/s Standard Scientific Industries are separate entities. It is also admitted that in the statement of claim, he has not mentioned his date of joining of service with the management. It is denied that management does not earn hefty profit. It is admitted that he has not placed on record any document to show that M/s Punjab Scientific Industries had been paying bonus to the workers till 2000.
8. Labour Inspector Sh. Mahender Kumar has been examined as WW-2. He has proved the copy of report prepared by him alongwith copy of list of workers found working at the time of inspection on 5.4.05 at M/s Punjab Scientific Industries at 315/12, Shahzada Bagh, Delhi. In I.D. No. 40/06 Page 6 of 14 his cross-examination, he has admitted that M/s Punjab Scientific Industries and M/s Standard Scientific Industries had represented to their department as two separate and independent establishments.
9. Sh. S. Pandia Rajan, Inspector of Factories, Labour Department has been examined as WW 3. In his examination-in-chief, he has deposed that on the basis of complaint assigned to him, he had visited and inspected the premises No. 315/12, Daya Basti Industrial Area, Delhi on 20.06.2006 and prepared a report. He has further deposed that on the basis of said inspection, he had sent a reply through the complainant Sh. Om Parkash vide his reply dated 02.08.2006. Photocopy of the same has been proved as Ex. WW 3/1. In his cross-examination, he had admitted that he was not aware which of the workers mentioned in the letter Ex. WW 3/1 belong to which of the two said establishments. He has denied that he has prepared a false report.
10. Sh. Sunil Kumar, Food Supply Officer has been examined as WW 4. He has deposed that in the year 2004, he was posted as Labour Inspector. He has proved his report in the record of I.D. No 93/2006 titled as Om Prakash Vs. Punjab Scientific Industries as Ex. WW 4/1. In his cross-examination, he has deposed that he was not aware that the said two firms were functioning on different floors i.e. Basement & 1st floor at I.D. No. 40/06 Page 7 of 14 premises No. 315/12, Daya Basti, Delhi.
11. Sh. Umesh Kumar Mandal, Peon/All Rounder employed with M/s Punjab Scientific Industries in year 2003 has been examined as WW 5. In his affidavit , he has deposed that he was being paid less than minimum wages. He has further deposed that total accommodation of the building at 315/12, Daya Basti, Delhi at basement as well as ground floor is under the possession of M/s Punjab Scientific Industries and no other firm works from this building . He has further deposed that after termination of his service, the Labour Department referred his dispute to Labour Court-XI, Kakardooma Courts, Delhi for his reinstatement. In his cross-examination, he has deposed that he has not filed any complaint regarding management paying him less than minimum wages. He has admitted that no appointment letter was given to him. He has admitted that he has no document to prove that M/s Punjab Scientific Industries is being run in the entire building. He has further deposed that he could not say that the M/s Punjab Scientific Industries was not paying bonus to its workers.
12. Management has examined four witnesses. Sh. Tarsem Singh, the son of Sh. Balwant Singh who is proprietor of M/s Punjab Scientific Industries has been examined as MW 1. In his affidavit he has reiterated the contents of written statement. In his cross-examination, he has I.D. No. 40/06 Page 8 of 14 deposed that he has a separate firm namely M/s Standard Scientific Industries in partnership with Sh. Tranjeet Singh. He has further deposed that he had started his business in 1995 in partnership with Sh. Gurjeet Singh, his brother at 315/18, Daya Basti and this partnership was dissoved after about 4-5 years ie. On 31.03.2001 and thereafter he took his another brother Sh. Taranjeet Singh as partner. He has denied the suggestion that M/s Standard Scientific Industries is operating from Kanhaiya Nagar. He has denied the suggestion that only M/s Punjab Scientific Industries is operating from ground floor as well as basement of premises No 315/12 and 13 person are working in that factory. He has denied the suggestion that Standard Scientific Industries firstly shifted to Onkar Nagar and presently operating from Kanhaya Nagar.
13. MW 2 Sh. Rakesh Kumar, Asst. Director, ESIC has deposed that he along with Sh. Saran Kumar, Inspector had personally visited at premises No. 315/12, Daya Basti, Delhi and given the notice dated 01.11.04 which was signed by him and Sh. Sraran Kumar, which is Ex. MW 2/1. In his cross-examination, he has deposed that the complaint was against the management of M/s Punjab Scientific Industries and he has conducted the physical verification of all the establishment housed in basement and ground floor of premises No. 315/12, Daya Basti. He has I.D. No. 40/06 Page 9 of 14 deposed the reason for calling the management of M/s Standard Scientific Industries was that it was situated in the same premises and secondly, so that the workers working in premises should not go out of premises and thirdly, the statement of workers was recorded and in their statement name of M/s Standard Scientific Industries has appeared. He has deposed that on his visit, 7 persons were found working at ground floor, out of which 4 were on the roll of Punjab Scientific Industries, two were shown on the roll of Standard Scientific Industries and one worker was found not on the roll of either of the two. He has further deposed that in the basement six workers were found working out of which one worker was on the roll of Punjab Scientific, 4 were on the roll of Standard Scientific Industries and one was not on the roll of either. He has further deposed that notice was issued to both, M/s Punjab Scientific Industries and M/s Standard Scientific Industries to explain about the person who were not found on the roll of either of the two and they were asked to produce 4 years past record of attendance, wages, muster roll, balance sheet etc but none these managements appeared in the ESI Office.
14. MW 3 Sh. Tara Chand, LDC, Labour Department has proved letter dated 12.09.05. MW 4 Sh. V.K Singh, Labour Officer has proved letter dated 12.09.05 and its reply sent by the management as Ex. MW 4/1 I.D. No. 40/06 Page 10 of 14 and Ex. MW 4/2 respectively. None of these witnesses were cross- examined by Ld. AR for workmen despite opportunity given.
15. I have heard arguments from Sh. S.N. Sharma, Ld. AR for the workmen and Sh. Amarjeet Singh, Ld. Counsel/ AR for the management. I have perused the entire record. My findings on the issues are as under:-
16. Findings on issue no.1.
Issue no.1 is "Whether the cause of the workmen has been espoused properly? Neither any evidence nor any argument has been advanced on this issue by the parties. No document showing espousal has been proved by the workmen. Thus, there is no espousal in this case. However, in M/s Payen and Talbros Ltd., vs Hans Raj and others DLT 1968 Vol. IV Page 130 it was held by Hon'ble Delhi High Court that:-
the language of section 2(k) of the Industrial Disputes Act in itself is wide enough to cover a dispute between an employer and a single employee but having regard to the scheme of the Act and the purpose for which it was enacted and the use of the word "workmen" in this definition clause, industrial dispute has been construed by the courts to mean a collective dispute, i.e. a dispute where workmen as a body or a considerable section of them make a common cause with the individual workman and raise a demand. It would not appear that the condition of an espousal or of a body or a considerable section of workmen making a common cause with the particular dispute arises only when individual dispute per se is of the nature of an individual dispute concerning a particular workman as opposed to collective dispute involving all the workmen. Where the dispute which was referred to the Tribunal related to gratuity scheme sought to be introduced for the benefits of all the workmen employed in a particular company, it was per se an industrial dispute.I.D. No. 40/06 Page 11 of 14
No espousal or support was needed for such a dispute.
17. The above judgment implies that espousal is not necessary in case of bulk workmen. Therefore, even if it is proved that that there is no proper espousal in this case, the same would not affect the case of the workmen adversely. This issue is decided accordingly.
18. Findings on Issue No.2 Issue no. 2 is "Whether M/s Punjab Scientific Industries and M/s Standard Scientific Industries are one entity ? It is the admitted case of workmen in statement of claim M/s Punjab Scientific Industries and M/s Standard Scientific Industries are two different entities in all respects. They have got nothing in common and their proprietors are different, their Sales-Tax/VAT Numbers are different. WW 1 Sh. Om Prakash has also admitted in his cross-examination that M/s Punjab Scientific Industries and M/s Standard Scientific Industries are separate entities. In view of clear admissions on behalf of workmen, it is held that these two establishments are not one entity. Issue No. 2 is decided accordingly.
19. Findings on issue no.3 Issue no.3 is whether the workmen mentioned in Annexure "A" to the terms of reference are entitled to the bonus and if so, from what date and at what rate ? As per terms of reference, this issue is to be answered I.D. No. 40/06 Page 12 of 14 only, when it is found that M/s Punjab Scientific Industries and Standard Scientific Industries are one entity i.e. M/s Punjab Scientific Industries. In decision of issue no.2, it has been held that two establishments are not one entity. Therefore, occasion for giving findings on this issue does not arise. Hence, issue no.3 is disposed of accordingly.
20. Findings on issue no.4 Issue no.4 is As per terms of reference. Terms of reference are ''Whether M/s Punjab Scientific Industries and M/s Standard Scientific Industries is one entity i.e M/s Punjab Scientific Industries as contended by the workmen and if so, whether the workmen shown in the annexure are entitled to the bonus and if so, from what date and at what rate and what directions are necessary in this respect ?"
21. Vide my findings on issue no.2 and 3, it has already been held that M/s Punjab Scientific Industries and M/s Standard Scientific Industries are separate entities and accordingly, as per terms of reference, further question is not required to be answered. Issue no.4 is answered accordingly.
22. Relief.
In view of my findings on issues no.2, 3 and 4 it is held that workmen are not entitled to the relief claimed. Award is passed I.D. No. 40/06 Page 13 of 14 accordingly.
23. Copy of the award be sent to GNCT of Delhi for publication. File be consigned to record room.
Announced in open court on 04.08.2011 (MAHAVIR SINGHAL) Presiding Officer, Industrial Tribunal Karkardooma Courts, Delhi.
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