Delhi District Court
Ashwani Sharma S/O. Sh. Joginder Lal ... vs M/S. Pearls Support Services Pvt. Ltd on 30 July, 2016
Ashwani Sharma Vs. M/s. Pearls Support Services Pvt. Ltd. DID No. 239/16
BEFORE LABOUR COURT - XI: KARKARDOOMA COURTS: DELHI
PRESIDING OFFICER: Mr. ANAND SWAROOP AGGARWAL
(Delhi Higher Judicial Service)
(Additional District & Sessions Judge, Delhi)
DIRECT INDUSTRIAL DISPUTE (DID) No. 239/16
UNIQUE CASE ID No. 02402C0130862015
In the matter of:
Ashwani Sharma S/o. Sh. Joginder Lal Sharma,
R/o. H. No. C9, Sewak Park,
Dwarika More, Uttam Nagar, Delhi.
C/o. Delhi Engineering Karamchari Sangh
T78, Milan Market, Shivaji Marg,
New Delhi - 110015. ...... Workman / Claimant
Vs.
M/s. Pearls Support Services Pvt. Ltd.
G20A, Laxmi Park (Nihal Vihar),
Near Biscuit Factory,
Nangloi, Delhi. .... Management
Date of institution : 04.04.2015
Date of reserving for award : 26.07.2016
Date of award : 30.07.2016
STATEMENT OF CLAIM UNDER SECTION 2A(2) OF THE
INDUSTRIAL DISPUTES ACT, 1947.
AWARD
1.CASE OF WORKMAN AS PLEADED IN STATEMENTOFCLAIM UNDER SECTION 2 A(2) OF THE INDUSTRIAL DISPUTES ACT, 1947.
(i) The workman was working with the management on the post of 'Security Guard' since January 2007 and his last drawn wages were Rs. 11,300/ per month. The management did not issue any appointment letter to the workman.
(ii) Workman used to work sincerely, honestly and service record of the workman was well satisfactory and workman did not give any chance of complaint Page 1 of 13 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/30.07.2016 Ashwani Sharma Vs. M/s. Pearls Support Services Pvt. Ltd. DID No. 239/16 to the management.
(iii) The management did not issue any appointment letter, attendance card, minimum wages, leave book, pay slip, PF, HRA, ESI, etc. to the workman and also the management did not provide weekly off, leaves, bonus, overtime to him. The workman used to demand abovesaid facilities from the management. The management every time assured the workman that management will provide all the legal facilities to him very soon but the management did not provide the same to the workman. The management marked the presence of workman in its record and the management also used to pay wages to workman on the wages register.
(iv) The management started to get rid off the workman but failed and on 01.07.2014 when the workman had demanded his earned wages for the month of June 2014, the management became annoyed with the workman and on same day (i.e. on 01.07.2014) the management illegally terminated the workman from his services, without any rhyme or reason, without paying the earned wages for the month of June, 2014, without giving any show cause notice and without conducting any domestic enquiry against the workman.
(v) The management violated the provision of section 25 F and G of the Industrial Disputes Act, 1947.
(vi) One 12.07.2014 the workman through union sent, through Regd. AD, the demand notice to the management. The said notice was duly served upon the management but the management neither sent any reply nor reinstated the workman on duty.
(vii) On 26.05.2014 workman filed complaint before the Asst. Labour Commissioner, Karampura, Delhi and on this complaint the Labour Inspector had visited the establishment of management and the Labour Inspector advised the Page 2 of 13 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/30.07.2016 Ashwani Sharma Vs. M/s. Pearls Support Services Pvt. Ltd. DID No. 239/16 management to reinstate the workman on duty and pay his unpaid wages but management did not fulfill the advice of the Labour Inspector.
(viii) The workman filed the statement of claim before the Asst. Labour Commissioner, Karampura, Delhi and on this complaint the Asst. Labour Commissioner had sent so many notices to the management to participate in the conciliation proceedings but management did not appear before the Conciliation Officer. Hence this reference.
(ix) The workman neither left his services nor has taken any full and final payment from the management. The workman was illegally terminated by the management from the services and workman worked for more than 240 days with the management in the preceding year.
(x) After illegal termination the workman searched for the job at many places but did not find any work, so workman is completely unemployed and he is dependent upon his family and workman wants to join duty with the management on the same post with full back wages.
With these averments the workman prayed for passing an award of reinstatement in service with full back wages and all other consequential benefits in favour of workman and against the management and an order of earned wages for the month of June 2014 in this favour.
2. STAND TAKEN BY MANAGEMENT IN THE WRITTEN STATEMENT OF DEFENCE.
Management in the written statement of defence pleaded that M/s. Pearls Support Services Pvt. Ltd. was incorporated on 31.07.2007 vide corporate identity no. U74910DL200PTC166481 dated 31.07.2007 and is registered with employee provident fund department, ESIC, service tax department apart from income tax department. It was engaged in providing security personnel / house keeper and Page 3 of 13 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/30.07.2016 Ashwani Sharma Vs. M/s. Pearls Support Services Pvt. Ltd. DID No. 239/16 contract labour to various clients for whom the employees were hired. The company / management was granted licence under the Delhi Private Security Agencies (Regulation) Rules 2009 to run business of private security agency in all the districts of NCT of Delhi from 07.12.2010 to 06.12.2015.
Everything was going well. Suddenly on 24.02.2014, CBI freezed management's bank account with Axis Bank at Paschim Vihar, New Delhi Branch and Mohali Branch alongwith management's two clients (i.e. PGF Limited & PACL India Ltd. (vide FIR No. RCBD1/2014/E/004/CBI/BS&FC/ND dated 19.02.2014.) Management issued notice for termination to all the clients since management would not be in a position to pay the salaries, statutory dues i.e. EPF, ESIC and service tax etc. However, management liquidated its assets, deposits and made payment of due salaries to staff. Management also pleaded that "H. That from the period 24.02.2014, Company was forced to close all its operation w.e.f. 1.04.2014 Since many of our guards who were made payment directly by the client and from major client whom huge payment were receivable, stopped making further payment on the ground that their Bank account have been freeze by CBI in the Month of February. We gave notice to staff, that their services are no more required after 31st of March 2014. Since the Company had left no business, therefore all employees, including operation and accounts staff themselves decided to find new job and resigned from the company. The company is not having any Operation staff or account staff; it is very difficult to obtain specific information from the record easily."
Claimant joined the management company on 16.10.2010 and was working as a 'guard' with management's client M/s. PGF Ltd. and workman left the services with the company without any intimation. Management also pleaded that salary and the length of service is matter of record. Management further submitted that on many occasions workman was caught red handed while on duty and verbal warnings were also given to the workman so many times by field officer who were on routine checking. The workman always felt sorry and assured the Operation Page 4 of 13 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/30.07.2016 Ashwani Sharma Vs. M/s. Pearls Support Services Pvt. Ltd. DID No. 239/16 Head that it would not happen in future. Management submitted that proper identity card with employee code no.50018 was issued to the workman which was renewed from time to time. An authority letter was also issued to do duty at client's premises. Attendance was marked by the employee in Register of Attendance (Form G), which is kept at the site of duty. Net salary payable to workman was transferred in salary account of the workman and the facility of EPF bearing no. DL36937/18 and ESIC bearing no. 11898761 was also given to the workman. The management had given all legal facilities under the provisions of labour laws to the workman and workman had no complaint against the management at any point of time during his course of employment.
The management submitted that claimant has taken all his dues from the management and did not turn up for his further duty w.e.f. 01.07.2014 without information to the management. Management has paid his due salary for the month of June 2014 before Labour Inspector.
Management also pleaded that workman has reached the age of superannuation (i.e. about 60 years) as his date of birth is 01.10.1955 and as per company rules workman has attained the age of retirement on 01.10.2013 (as on 58 years). Management pleaded that it had received the demand notice but the same could not be replied because of proceedings initiated before the Labour Inspector and Conciliation Officer, and the representative of management had appeared before them. A.R. of the management was present before the Labour Inspector and workman received his salary for the month of June 2014 before him. Management lastly pleaded that workman has attained the age of superannuation and, therefore, workman is not entitled to any relief.
3. REJOINDER Workman filed rejoinder to the WS of management denying the stand taken by the management and reaffirming the averments made in the statement of claim.
Page 5 of 13 (ANAND SWAROOP AGGARWAL)POLC- XI/KKD/DELHI/30.07.2016 Ashwani Sharma Vs. M/s. Pearls Support Services Pvt. Ltd. DID No. 239/16 Workman in the rejoinder pleaded that management is still running its company in good condition and management has not filed any document on record to show that management's company has been closed.
4. ISSUES Vide order dated 18.09.2015 following issues were framed:
i) Whether workman worked with the management and his services were terminated illegally / unjustifiably by the management in terms of averments made in the statement of claim? If so, to what relief workman is entitled? OPW
ii) Whether from the period 24.02.2014 management company was forced to close all its operations? If so, to what effect? OPM
iii) Whether claimant has taken all his dues from the management and has not turned up for his further dues? If so to what effect? OPM
iv) Whether claimant joined the services of management on 16.10.2010 and left the services of the management company without any intimation? If so, to what effect? OPM
v) Relief.
5. EVIDENCE Workman appeared in witness box as WW1 Mr. Ashwani Sharma and tendered his examinationinchief vide affidavit Ex. WW1/A and relied upon documents namely Ex. WW1/1 Complaint dated 26.05.2014 addressed to Assistant Labour Commissioner; Ex.WW1/2 Demand Notice dated 09.07.2014; Ex. WW1/3 Postal Receipt dated 12.07.2014; Ex.WW1/4 Statement of claim filed before Conciliation Officer and Ex.WW1/5 - Failure Report dated 20.11.2014 issued from Office of Joint Labour Commissioner (West District), Karampura, Delhi. Exhibition of documents was objected to by ld. Counsel for management on the ground of documents being photocopy documents. Workman was cross examined by ld. Counsel for management and confronted with Ex.WW 1/XM1 - Payment Voucher. On 08.04.2016 WE closed by ld. Counsel for Page 6 of 13 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/30.07.2016 Ashwani Sharma Vs. M/s. Pearls Support Services Pvt. Ltd. DID No. 239/16 workman.
Management examined MW1 - Mr. D N Malik, Manager and tendered his examinationinchief vide evidence affidavit Ex. MW1/A and relied upon document namely Mark - A - Agreement for Security Services dated 17.10.2007; Ex. MW1/2 (also photocopy exhibited as Ex.WW1/XM1) - Payment Voucher dated 14.08.2014; Ex. MW1/3 Agreement for Security Services dated 01.11.2007. ME was closed on 12.07.2016 by ld. Counsel for the management.
6. ARGUMENTS I have heard Mr. Ajit Singh, Adv. for the workman. Mr. Sunil Kumar, Adv for management filed written arguments with certain documents. I have perused the material available on judicial file very carefully.
7. MY ISSUEWISE FINDINGS ARE AS UNDER: ISSUE No. 2 Whether from the period 24.02.2014 management company was forced to close all its operations? If so, to what effect? OPM Onus regarding this issue is on the management. Here case of the management is not that on account of closure of all its operation w.e.f. 24.02.2014, management terminated the services of workman or that management was not able to provide duty to the workman. Case of the management is that claimant has taken his dues from the management and did not turn up for his further duty w.e.f. 01.07.2014 without information of the management. Thus, this issue is of no significance so far as this case is concerned. ALSO it is noteworthy that except the depositions to the effect that, "......... It is correct to suggest that it had come to my notice that CBI had fridged the bank account of management company.....", requisite suggestions required for discharging onus regarding the issue in hand have not even been given to the workman in his cross - examination.
Inconsistent with abovesaid suggestions given to workman in his cross Page 7 of 13 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/30.07.2016 Ashwani Sharma Vs. M/s. Pearls Support Services Pvt. Ltd. DID No. 239/16 examination MW1 Mr. D N Malik deposed as under: ".....Court question: Why salary of the workman for June 2014 was not paid to workman prior to 14.08.2014?
A. Accounts of management's clients namely PACL Ltd and PGF Ltd were freezed by the CBI therefore payments were not paid to us by the clients and we did not pay the salary to the workman. Subsequently management company sold its assets and paid salary to workman.....".
As per these depositions only the accounts of clients of management namely M/s. PACL Limited and M/s. PGF Limited were fridged and there is no deposition regarding the freezing of accounts of the management.
MW1 Mr. D N Malik in his cross - examination deposed that, ".......(vol. I joined the management on 01.07.2014.)......". Thus, evidence of MW1 Mr. D N Malik is not sufficient to discharge the onus regarding issue in hand. FURTHER MW1 Mr. D N Malik in his cross - examination deposed that, "......... At present management is employing two guards and myself only. Even at present management is crediting salary of its employees in the bank account......". Meaning thereby management is still doing its business and has not been closed down. ISSUE IN HAND IS ACCORDINGLY DECIDED AGAINST THE MANAGEMENT.
ISSUE No. 1Whether workman worked with the management and his services were terminated illegally / unjustifiably by the management in terms of averments made in the statement of claim? If so, to what relief workman is entitled? OPW ISSUE No. 3 Whether claimant has taken all his dues from the management and has not turned up for his further dues? If so to what effect? OPM ISSUE No. 4 Whether claimant joined the services of management on 16.10.2010 and left the services of the management company without any intimation? If so, to what effect? OPM ISSUE No.5: Relief.
Page 8 of 13 (ANAND SWAROOP AGGARWAL)POLC- XI/KKD/DELHI/30.07.2016 Ashwani Sharma Vs. M/s. Pearls Support Services Pvt. Ltd. DID No. 239/16 All these issues, being interconnected, are being taken up under common discussion. Here as per workman as pleaded in statement of claim and deposed in evidence affidavit workman joined the duties with the management in January 2007 and his services were illegally terminated by the management on 01.07.2014 in violation of provisions of section 25 F and G of the Industrial Disputes Act, 1947. At the outset it is observed that no case for violation of provisions of section 25 G of the Industrial Disputes Act, 1947 is made out for want of bare basic averments / depositions in the statement of claim / evidence affidavit of workman required for proving / establishing on judicial file the violation of provisions of section 25 G of the Industrial Disputes Act, 1947. Thus, no case for violation of provisions of section 25 G of the Industrial Disputes Act, 1947 is made out in this case.
On the other hand, as per management, workman joined the management on 16.10.2010 and left the services of the management without any intimation. Management also pleaded that claimant has taken his dues from the management and did not turn up for his further duty w.e.f. 01.07.2014 without information of the management.
Somewhat inconsistent with the averments / depositions made in statement of claim / evidence affidavit, workman in his cross - examination deposed that, "..... I joined the management M/s. Pearls Support Services Pvt. Ltd. In July 2007.....". Management in the WS pleaded that it had given all legal facilities under the provisions of labour laws to the workman. But management has not produced the appointment letter of workman showing that workman was appointed by management on 16.10.2010 as pleaded by workman in the WS. What is also to be noted is that MW1 Mr. D N Malik in his cross - examination deposed that, ".......... (vol. I joined the management on 01.07.2014).....", thus, bare oral depositions of MW1 Mr. D N Malik without any supporting documentary proof regarding date of appointment of workman, are not sufficient to prove that Page 9 of 13 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/30.07.2016 Ashwani Sharma Vs. M/s. Pearls Support Services Pvt. Ltd. DID No. 239/16 workman was appointed by management on 16.10.2010 and not on in July 2007. None of the directors of management company or any other AR of the management company who was employed by management in the year 2007 has appeared in the witness box to depose that workman was not appointed by management in July 2007. Management company stood incorporated in July 2007. By applying principle of preponderance of probabilities this court can proceed with the assumption that quite possibly workman joined the management in July 2007.
NOW it is left to be decided as to whether management terminated the services of workman on 01.07.2014 or whether workman left the services with the management without any intimation and claimant has taken all his dues from the management and did not turn up for his further duty w.e.f. 01.07.2014 without information of the management.
Admittedly management was served with demand notice sent by workman on 12.07.2014 but management preferred not to reply the same. It is alright that management joined the proceeding before labour department and paid salary for the month of June 2014 to the workman on 14.08.2014 vide Ex.MW1/2. But management did not file any reply before labour department taking the defence that services of workman have not been terminated by management as alleged by workman. No such reply has been filed on record by management. Workman also very timely initiated conciliation proceedings vide Ex.WW1/4. Keeping in view the length of services of the workman with the management, presumption of workman leaving his services with the management on its own cannot be drawn very easily. ALSO it is noteworthy that management in the WS has not offered the workman to join duty with the management.
Workman in his cross - examination has been made to depose that, ". ....It is wrong to suggest that I myself left the services with the management on 01.07.2014. It is wrong to suggest that I had received all the dues from the management uptill my working till 30.06.2014. It is wrong to suggest that I did not Page 10 of 13 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/30.07.2016 Ashwani Sharma Vs. M/s. Pearls Support Services Pvt. Ltd. DID No. 239/16 visit the management for getting the service after 30.06.2014. I had so visited on the 2/3rd day after 30.06.2014 but there was no proper response from the management. I visited again the management on 07.07.2014 for receiving my salary. Even on 07.07.2014 I had asked the management to provide service to me. I have no knowledge whether management served any notice on 31.03.2014 to other security guards that operations of the management shall stand closed w.e.f. 01.04.2014......".
Notice to other security guards is of no relevance so far as case of workman herein is concerned. MW1 Mr. D. N. Malik in his cross - examination deposed as under: "......I can't say that last salary of workman was Rs.11300/ per month. It is correct that management did not pay gratuity / service compensation to workman. It is correct that workman did not make any application at any point of time to the management for settling his accounts in full and final. It is correct that vide Ex.MW1/2 only salary has been paid. It is correct that management neither gave any letter to the workman to join duties nor conducted any enquiry against the workman.
I can not say that workman never settled his accounts with the management in full and final. I do not remember whether management filed WS before the Conciliation Officer or not....."
These depositions do not prove the stand of the management to the effect that claimant has taken his dues from the management and did not turn up for his further duty w.e.f. 01.07.2014. Even the salary for the month of June 2014 was paid to workman on 14.08.2014 before the labour department, thus, question of workman taking his dues from the management and not turning up for his further duty w.e.f. 01.07.2014 does not at all arises.
In view of above discussions being guided by the principle of preponderance it can be said that workman worked the management since July 2007 and his services were illegally / unjustifiably terminated by the management on 01.07.2014 as pleaded by the workman. The stand of the management that Page 11 of 13 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/30.07.2016 Ashwani Sharma Vs. M/s. Pearls Support Services Pvt. Ltd. DID No. 239/16 workman took his dues from the management and did not turn up for his further duty w.e.f. 01.07.2014 does not inspire confidence from judicial mind.
NOW MERELY BECAUSE management terminated the services of workman illegally / unjustifiably in violation of provisions of Section 25 F of the Industrial Disputes Act, 1947 does not mean that workman is automatically entitled to be reinstated in service with management with full back wages. Whether the workman is entitled to be reinstated in service or not depends on the facts and circumstances of this case at the discretion of this Court keeping in view the totality of the facts and circumstances of this case. In this case workman in his crossexamination deposed that, "...At present my age is 55 years. It is correct that my date of birth is 01.01.1955. It is wrong to suggest that management engages the security guard up to the age of 58 years. (vol. Management engages the security guards up to the age of 60 years). It is incorrect to suggest that I am deposing falsely." Workman has wrongly deposed his present age as 55 years. If date of birth of workman is 01.01.1955 his age as on the date of recording of his evidence was more than 60 years. Workman has himself volunteered that management engages security guards up to the age of 60 years. Hence, going by the version of workman himself workman has attained the age of retirement, therefore, workman is not entitled to reinstatement in service with the management.
In the case in hand workman has pleaded that after illegal termination the workman searched for the job at many places but did not find any work, so workman is completely unemployed and he is dependent upon his family and workman wants to join duty with the management on the same post with full back wages. Except the bald averments / depositions nothing has been brought on record by the workman to show that he made serious sincere efforts for getting job after termination of his services by the management. Workman has not examined any of his family members from whom he is dependent. Keeping in view normal Page 12 of 13 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/30.07.2016 Ashwani Sharma Vs. M/s. Pearls Support Services Pvt. Ltd. DID No. 239/16 job / work opportunities for a 'Security Guard' in a metropolitan city like Delhi, it is hard to believe that workman has not been able to get fresh job / earn any thing since the date of termination of his services by the management. After all workman has an vast experience of 7 years of working as 'Security Guard'. Hence, workman is not entitled for full back wages.
In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the tune of Rs.80,000/ (Rupees Eighty Thousand Only) to the workman for illegal / unjustified termination of his services by the management and for consequences thereof / back wages would meet the ends of justice. If this amount of Rs.80,000/ (Rupees Eighty Thousand Only) is not paid to workman within one month of award coming into force management shall be liable to pay interest @ 9% per annum on this amount from the date of the award till its payment. A sum of Rs.20,000/ (Rupees Twenty Thousand only) is also awarded to workman as costs of litigation payable by the management. Issue no. 1, 3, 4 and 5 are decided accordingly.
8. A copy of the award be sent of Office of the concerned Deputy Labour Commissioner for further necessary action. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 30.07.2016.
(ANAND SWAROOP AGGARWAL) POLCXI, Karkardooma Courts, Delhi* Page 13 of 13 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/30.07.2016