Delhi District Court
Sh. Nardev Singh vs M/S Climate Control on 6 December, 2013
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IN THE COURT OF SH. BHUPESH KUMAR: PRESIDING OFFICER LABOUR
COURT NO. XVI: KARKARDOOMA COURTS : DELHI
ID NO. 22/11
1. Sh. Nardev Singh
s/o Sh. Mahender Singh
r/o Khasra No.1 2815, Gali No.6,
Near Jharoda Mazra,
Sangam Vihar,
Delhi110084.
2. Sh. Girdhari Lal
s/o Late Sh. Rama Shanker Sharma
r/o A150, Shastri Nagar,
Delhi110052.
Represented by
Delhi Offices & Establishment
Employees Union (Regd.)
3, V.P.House, Ravi Marg
New Delhi110001 ....... Workman
VERSUS
M/s Climate Control
Through its proprietor
Sh. Mahanand Sharma
26,Jawahar Market,
Lancer Road, Timarpur,
Delhi110054. ...... Management
Bhupesh Kumar, POLCXVI
ID No.22/11 1/11
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Date of Institution : 04.01.11
Judgment reserved : 18.11.13
Date of decision : 06.12.13
A W A R D
1. Direct Industrial Dispute filed by workmen Sh.Nardev Singh and Sh.
Girdhari Lal. It has been submitted that the workman Sh.Nardev Singh was
employed as an Electrician on 05.08.96 and workman Sh. Girdhari Lal on
05.01.00 as A/C Operator with the management and their last drawn wages
were Rs. 4,200/ and 4,900/ respectively. It has been submitted that
management is Labour Contractor and used to take labour on contract basis and
provide the same to the management of Defence Research & Development
Organization. The management used to deploy the workmen under the Contract
Labour (Regulation & Abolition) Act, 1970. Workmen were employed by the
management with Solid State Physics Laboratory (SSPL) under DRDO, Lucknow
Road, Timarpur, Delhi. It has been further submitted that 23 workers including
workman Nardev Singh and Girdhari Lal of the management alongwith their
union filed an application under Rule 25 Sub Rules IV, V(A) of the Contract
Labour (Regulation & Abolition) Central Rules, 1971 to the Chief Labour
Commissioner, Central, New Delhi complaining that they were being
discriminated from the regular employees while doing the similar work. The said
application was partly accepted. Thereafter the union has filed writ petition in the
Bhupesh Kumar, POLCXVI
ID No.22/11 2/11
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Hon'ble High Court. Due to this litigation, management got annoyed from the
workmen and on 30.01.09 when both the workmen reported for the duties, they
were not allowed to join duties by the management. The management vide letter
dt. 30.01.09 transferred both the workmen to other site. No termination or
transfer letter was given to the workmen. It has been further submitted that both
the workmen are unemployed since 30.01.09 as they wee not allowed to join
duties. The prayer has been made by the workmen for reinstatement with back
wages from the date of his termination alongwith all other consequential benefits.
2. Notice of the claim was issued to the management. Management has
contested the claim by filing WS and submitted that certain employees have
been transferred to Jammu & Kashmir because the work at Delhi has come to an
end w.e.f. 31.03.09. The respondent has no alternative but to transfer the
employees to other place. It has been denied that the management used to deploy the workmen under the Contract Labour (R & A) Act, 1970. The management itself is a Principle Employer and render services to various establishments including management of DRDO, SSPL (PRDO). It has been submitted that the services came to an end on 31.03.09 and none of the workmen were exploited by the respondent. It has been further submitted that the workmen filed a claim before Chief Labour Commissioner (Central) but the workmen could not prove the case. The transfer of the employees is an incidence of service and not otherwise. It has been further submitted that the workmen are not unemployed. On the basis of these submission, prayer has Bhupesh Kumar, POLCXVI ID No.22/11 3/11 4 been made to dismiss the claim.
3. Rejoinder was filed by the workman wherein the contents of the written statement were generally denied and the contents of the claim were reiterated and reaffirmed.
4. On the basis of the pleadings of the parties, following issue was framed on 03.05.11 :
i) As per terms of reference.
5. The workman Nardev Singh appeared in the witness box as WW1 and led his evidence by way of affidavit Ex. WW1/A. The witness has deposed on the similar lines to that of contents of his claim and got exhibited the documents as Ex. WW1/1 to Ex. WW1/ 4.
During cross examination, workman deposed to the effect that no appointment letter was issued to me w.e.f, 5.8.96. He had a gate pass issued to him by the Management. He was working as an electrician. He worked at SSPL (Solid State Physic Lab), Timarpur, Lucknow Road, Delhi. The Management was awarded a contract from DRDO for maintenance / installation of electrical/DG/AC plant. He was not aware if the contract has already been expired. He denied that he was not illegally terminated but since the contract was already completed, the Management issued a letter of my transfer to another unit of the Management at Jammu & Kashmir. Certain employees were transferred Bhupesh Kumar, POLCXVI ID No.22/11 4/11 5 to J & K, but the said employees were related to the worker's union. He is unemployed at present. A dispute was raised before Chief Labour Commissioner. He did not want to join anywhere else even though Management offers him to join duties at J&K. The Management is running its business at METCAF House, Civil Lines, INMAS Hospital at Timarpur, CFESS at Timarpur.
Workman Girdhari Lal appeared in the witness box as WW2 and led his evidence by way of affidavit Ex. WW1/A. The witness has deposed on the similar lines to that of contents of his claim and got exhibited the documents as Ex. WW1/1 to Ex. WW1/ 4.
During cross examination, workman deposed to the effect he was working with the management at Timarpur on the post of AC operator on the project of SSPL. He has done diploma course of AC operator from ITI. The project with SSPL has been over w.e.f. 31.03.09. He was terminated earlier. He denied that he was issued any transfer letter on 30.01.09 by the management. He was not aware about his transfer by the management. He had also filed a case before Concilliation Officer, Nimri Colony. It is correct that I had also filed a case before Dy. Labour Commissioner(Central). He did not know anything about Ex. WW2/X1. He also did not know anything about Ex. WW2/X2. He did not want to join at J&K. He cannot survive on a salary of Rs. 4,900/ in Jammu & Kashmir.
WE was closed.
Bhupesh Kumar, POLCXVI ID No.22/11 5/11 6
6. On behalf of the management, Sh. Surinder Kumar, Office Executive of management was examined as MW1. This witness has led his evidence by way of affidavit as Ex. MW1/A and Ex. MW1/ B. He has deposed on the similar lines to that of written statement.
During his cross examination, he deposed to the effect that Management is a proprietorship firm. Sh. Mahanand Sharma is the proprietor of the Management. The main job of the Management is manpower supply. The Management supply its employees for maintenance of electrical equipment, DG sets at Metcaff House, DRDO, Delhi. The employees are also supplied in J&K State. Earlier the Management also supply manpower in the NTRO, but at present its contract with NTRO has expired in the month of March, 2012 and around 10 employees of the management are working at Metcaff House. He denied that workmen Nardev Singh and Girdhari Lal were working with the Management at Metcaff house. They were working at SSPL, Timarpur. SSPL is branch of DRDO. The Management used to issue appointment letters to its employees. He denied that no appointment letter were ever issued to the workers by the Management. Mr. Nardev and Girdhari lal have worked with the Management at SSPL, Timarpur. The Management has never issued any notice informing both the workers about the date of expiry of their contract. The Management regularly deposit the ESI subscription of its employees. The Management is also providing PF facility to its employees, but he has not brought the said list also. He denied that services of both workman were illegally terminated by the Management.
Bhupesh Kumar, POLCXVI ID No.22/11 6/11 7 ME was closed.
7. My issue wise findings are as under: ISSUE NO.1 : As per terms reference.
AR for workman submitted that workman Nardev Singh joined the management on 05.08.96 as Electrician and workman Girdhari Lal joined the management as AC Operator on 05.01.2000. The last drawn salary of Nardev Singh was Rs. 4200/ whereas last drawn salary of Girdhari Lal was Rs. 4900/. The management is labour contractor and used to provide contract labour to the management of DRDO and certain other establishments. 23 employees employed with DRDO including the workmen were subject to the exploitation by the principle employer as well as by the contractors who filed application under Rule 25 Sub Rules IV, V(A) of the Contract Labour (Regulation & Abolition) Central Rules, 1971 to the Chief Labour Commissioner, Central, Delhi complaining that they are being discriminated from regular employees doing the same or similar work in the matter of salary or leave matters. The application was partly accepted by the Labour Commissioner against which the union has filed writ petition against the management before Hon'ble High Court. The management got annoyed with the workmen and were not allowed them to join duties on 30.01.09.
Bhupesh Kumar, POLCXVI ID No.22/11 7/11 8 On the other hand, it has been submitted on behalf of the management that the work of the management in Delhi came to end on 31.01.09, therefore, the workmen were transferred to Jammu & Kashmir. It has been vehemently submitted that the workmen have not complied with the directions and have not joined at the transferred place which shows that the workmen were not interested to continue with the job.
8. Heard. Material perused. The plea of the management is two folded. First is that the contractual job of the management came to end on 31.01.09 and second is that the workmen were transferred to Jammu & Kashmir. In respect of the first plea that the job of the management came to end on 31.01.09, here it is necessary to reproduce the part of cross examination of MW1, which is as under : "Earlier the Management also supply manpower in the NTRO, but at present its contract with NTRO has expired in the month of March, 2012 and around 10 employees of the management are working at Metcaff House."
9. From the careful perusal of cross examination of this witness, it reveals that the contract of the management with NRTO expired in the month of March 2012 which falsify the plea of the management that its contractual work came to an end on 31.01.09. Further cross examination of this witness reveals that 10 employees are still working at Metcaff House.
Bhupesh Kumar, POLCXVI ID No.22/11 8/11 9
10. In respect of the second plea that the workmen were transferred to Jammu & Kashmir, it is found that the management has not placed on record any such order nor has placed on record any document that such orders were communicated to the workmen at any stretch of time. The management has also not placed on record any rules and regulations which suggests that job of the workmen were transferred nor the management has placed on record any appointment letter showing any such clause. Further, management has not brought on record any material to show that similar jobs with similar service conditions were existing at Jammu & Kashmir. This discussion leads to conclusion that the management has failed to prove that the contractual job of the management came to an end on 31.01.09 and as such they have ever transferred the workmen to Jammu & Kashmir.
11. The employer employee relationship between the parties and the fact that both the employees worked with the management for more than 240 days before the last day of working with the management, has not been disputed. As per provisions of Section 25F of I.D.Act, a person cannot be terminated without any notice or notice pay. As a matter of fact, no notice or notice pay has been given. Therefore, the workman is entitled for the legal benefits i.e. reinstatement and back wages etc.
12. In respect of order for reinstatement, it is found that there may be lack of faith, trust and cooperation, in case the orders for reinstatement are made which Bhupesh Kumar, POLCXVI ID No.22/11 9/11 10 would consequently effect the capital gain of the Management. Moreover, the workman has taken the plea that their contractual job has came to an end (though this plea discarded), hence, it would not be safe to order for reinstatement of the workman in order to avoid unnecessary complication.
13. It is well settled law that if the circumstances require, instead of reinstatement etc., one time lump sum compensation can be granted. The reliance can be made in case Hindustan Motors Ltd. vs. T.K. Bhattacharya, 2002 SC 2676; ILR 2007 (1) Delhi 210 and M/s Lord Homeopathic Laboratories Pvt. Ltd. vs. Unnikullu & ors. ILP 1664, 2005.
14. Considering the entire facts and circumstances and length of job of the both the workmen, it is found that the compensation of a sum of Rs. 1,20,000/ to Sh. Nardev Singh and Rs. 1,40,000/ to Sh. Girdhari Lal (i.e. 50% of back wages) would be sufficient to meet the ends of justice in lieu of reinstatement and back wages etc.
15. Award has been passed. By recent amendment, Subsection 9 has been added in Section 11 of the I.D. Act which provides as under: "Every award made, order issued or settlement arrived at by or before Labour Court or Tribunal or National Tribunal shall be executed in accordance with the procedure laid down for Bhupesh Kumar, POLCXVI ID No.22/11 10/11 11 execution of orders and decree of a Civil Court under order 21 of the Code of Civil Procedure, 1908 (5 of 1908)"
16. The territorial jurisdiction of Labour Court is decided or determined at the place where management is situated. In the present case, management is situated at Timar Pur, Delhi, which falls within the North Civil jurisdiction. Hence, copy of the award be sent to the Sr. Civil Judge, North District for appropriate order on execution. File be consigned to Record Room after necessary compliance by Ahlmad.
17. Award has been passed. Copies of the award be sent to the appropriate Govt. for publication as per law. File be consigned to Record Room after necessary compliance by Ahlmad.
Announced in the Open Court (BHUPESH KUMAR)
on 6th December, 2013 Additional District & Session Judge
Presiding Officer Labour Court XVI
Karkardooma Courts : Delhi.
Bhupesh Kumar, POLCXVI
ID No.22/11 11/11