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Delhi District Court

Between The vs The on 23 February, 2023

      IN THE COURT OF AJAY GOEL, PRESIDING OFFICER-06,
     LABOUR COURT, ROUSE AVENUE DISTRICT COURT, D.D.U.
                     MARG, NEW DELHI.

LIR No.                                   1894/19
Date of Filing                            14.08.2019
Date of Award                             23.02.2023

BETWEEN THE WORKMAN
Sh. Uttam Kumar S/o Sh. Sukhpal, Age: 32 Years, Mob. No.
8527898622, R/o H. No. 922, Gali No. 21, Block-C-2, Harsh Vihar, Delhi-
110093.
Through Sh. Ram Narayan Singh, Secretary, Mob. No. 9891762150,
Samast Audhogik Shramik Vikas Union (Regn. No. 4066), N-22, B-359,
Kaushalpuri Factory, Near A-65/3, Railway Line, Azadpur, Delhi.

                                   AND

THE MANAGEMENT OF
M/s. Precision Engineering
Through its Proprietor Sh. Ishvinder Singh, Mob. No. 9811778775, E-51,
Sector-2, Bawana Industrial Area, Delhi-110039.


                                 AWAR D
1.

By this award, I shall dispose off the reference sent by the Joint Labour Commissioner (District North-West), Labour Department, Govt. of the National Capital Territory of Delhi arising between the parties named above to this court vide notification No. F.24 (639)/125/NWD/CO- I/19/13934-37 dated 30.07.2019 with the following terms of reference:-

"Whether the services of workman Sh. Uttam Kumar S/o sh. Sukhpal 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 the reference was issued to the workman with direction LIR No. 1894/19 Page 1 of 7 to file statement of claim which was filed stating therein that workman had been working with management's former organization namely M/s Sandhu Auto Industries since December 2016 continuously, at the post of Machine man and his last drawn salary was Rs. 15300/- per month; that workman used to work sincerely and honestly and he never gave any chance of complaint to management; that the management was not providing various facilities as per labour law to the workman viz. appointment letter, salary against casual and earned leaves; salary as per minimum wages Act etc; that the workman demanded the said facilities from the management from time to time but management gave false assurances; that since March 2017, management started to pay salary to the workman through bank however, management withheld the salary of the workman for the month of July 2017; that the workman had demanded the same from the management but the management kept on avoiding the demands of the workman; that in the meanwhile in April 2018, management had changed its name from M/s Sandhu Auto Industries to M/s. Precision Engineering and also provided the ESIC coverage to the workman on 02.04.2018, showing date of appointment of the workman since then; that due to repeated demand of salary for the month of July 2017, by the workman, management also withheld his salary for the month of December 2018; that on 23.01.2019, when the workman demanded his salary for the month of July 2017 and December 2018, management got annoyed and terminated the services of the workman without any reason, prior intimation; the management also withheld the salary of the workman for the month of July 2017 and also w.e.f. December 2018 yp 23.01.2019; that the management had also not given any other dues to the workman; that the workman sent demand latter dated 31.01.2019 to the management but the management neither made any payment to the LIR No. 1894/19 Page 2 of 7 workman nor took him back on service; that thereafter, workman filed a claim before conciliation officer; that due to adamant attitude of the management the conciliation failed and accordingly reference was sent before this court; that the management had terminated the services of the workman illegally, arbitrarily and unjustifiably, without giving any notice or information, without giving retrenchment compensation and notice pay to the workman, in violation of provisions of Section 25 F of the Industrial Disputes Act 1947; that the workman is unemployed since the date of his termination; that the workman did not get the job elsewhere despite best efforts. Lastly, it has been prayed that an award be passed in favour of the workman thereby directing the management to reinstate the workman with continuity of service, full back wages and all consequential benefits.

3. Notice of the reference was sent to management. Since none appeared on behalf of the management despite service and sufficient opportunities, management was proceeded exparte vide order dated 26.09.2022.

4. In ex-parte WE, workman produced himself in witness box as WW1 and tendered his evidence by way of affidavit Ex WW1/A and relied upon some documents as detailed in affidavit i.e. copy of demand notice dated 31.01.2019 is Ex WW1/1, copy of its postal receipt is Ex WW1/2, copy of ESI E-Pehchan card is Ex WW1/3 and copy of bank statement w.e.f. 24.04.207 to 29.11.2017 of workman is Ex WW1/4. Workman closed his exparte evidence on 23.02.2023 and exparte final arguments were heard in the matter on the same day.

5. I have heard the arguments on behalf of the workman and perused the record. My findings are as under:

It is the case of claimant that he had been working with the management's former organization namely M/s Sandhu Auto Industries since December 2016 continuously, at the post of Machine man and his last drawn salary was Rs. 15300/- per month; that the management was not providing various facilities as per labour law to the workman; that since March 2017, management started to pay salary to the workman through bank; that in the meanwhile in April 2018, management had changed its name from M/s Sandhu Auto Industries to M/s. Precision Engineering and also provided the ESIC coverage to the workman on 02.04.2018, showing date of appointment of the workman since then; that when the workman demanded the various facilities as per labour law and his due salalary from the management repeatedly, he management got annoyed and terminated the services of the workman on 23.01.2019 illegally, arbitrarily and unjustifiably, without giving any notice or information, without giving retrenchment compensation and notice pay to the workman, in violation of provisions of section 25F of the Industrial Disputes Act 1947.

6. The management has not contested the present case before the court and was proceeded exparte. The onus was high on workman to prove his case that there existed relationship of employer and employee between him and the management and that his services were terminated by management illegally and unjustifiably.

7. The claimant in support of his case, has relied upon various documents. Perusal of document Ex WW1/3 i.e. ESIC E-Pehchan Card shows that it bears the name of the management 'Precision Engineering LIR No. 1894/19 Page 4 of 7 and its address, as mentioned in reference and claim, under the heading Current Employer Details. The said document also bears the stamp of the management and signature of its proprietor Ishwinder.

Document Ex WW1/4 i.e. copy of bank statement of the account of the workman reflects the credit of amount from the management "PNB/NEFT-Devinder" vide entries dated 13.04.2017, 10.05.2017, and 11.10.2017. The said Devinder is one of the partner of the management and his name is find mentioned in the statement of claim of the workman as well as the demand notice Ex WW1/1.

Further document Ex. WW1/1 legal demand notice and Ex WW1/2 its postal receipt, bears the correct name of management and its proprietor and also address of management. So in these circumstances, the presumption of service of demand notice upon management on given address, exists as per General Clauses Act.

All the above documents relied upon by the workman, are duly proved on record and there is no rebuttal to the same. As such, these documents are sufficient to held that the claimant was working with management and there was relationship of employer and employee between the parties.

Moreover, the management has not contested the present case by filing written statement and leading evidence. No document has been proved and placed on record, in rebuttal to the claim of claimant. The management, despite sufficient opportunities, did not appear before the court to defend its case and thus it was proceeded exparte. So when the management has chosen not to appear in the matter, there is no reason to disbelieve the version and testimony of the workman. Hence, adverse inference has to be taken against the management. Accordingly, the claim of claimant has remained unrebutted and unchallenged.

In view of the above discussion, it is held that workman was an employee of the management and his services were terminated illegally and unjustifiably by the management.

8. As far as relief part is concerned, the workman has made a prayer in statement of claim that he is unemployed since the date of termination of his service and as such the managements be directed to reinstate him in service with full back wages including benefits of continuity of service and all other consequential benefits.

However, this court is of the opinion that the workman has not been able to prove on record as to what was his exact salary and that he was unemployed since the date of his termination. It is not made out as to what efforts, he had made to get other job on his being unemployed. Simple statement cannot be taken as proof and he should have proved that he tried many places by applying but did not get job. Some overt act was required to be brought on record.

Keeping in view the facts and circumstances that his services were illegally terminated and management has not come to disprove the same, some compensation is required to be given to the workman. Therefore, in view all these facts, salary of the workman and the period of service of the workman, this court deems it appropriate to grant 50% back wages to the workman from the date of termination till the date of award, alongwith 9% interest per annum, till realization, in lieu of his reinstatement and all other consequential benefits.

9. Relief:- In view of the above findings of the court it is held that the workman is entitled to relief against the management as stated above. With these observations the statement of claim of the workman filed under the LIR No. 1894/19 Page 6 of 7 provisions of the Industrial Disputes Act is disposed off. Reference is answered accordingly.

A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules. PRONOUNCED IN OPEN COURT ON 23.02.2023 (AJAY GOEL) PRESIDING OFFICER:LABOUR COURT-06 ROUSE AVENUE DISTRICT COURT NEW DELHI.