Delhi District Court
Through vs M/S. Oriental Enterprises on 30 January, 2015
Om Prakash Singh Vs. M/s. Oriental Enterprises ID No. 267/10
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI :
KARKARDOOMA COURTS : DELHI.
REFERENCE CASE (ID) NO. 267/10
UNIQUE CASE IDENTIFICATION NO. 02402C0196622010
In the matter of :
Sh. Om Prakash Singh S/o. Sh. Mukhtayar Singh,
R/o. Sant Pura, Near Shishodia Shiv Mandir,
Gali No. 10, Shyam Singh Vihar, Modi Nagar,
Distt. Ghaziabad, UP
{SINCE DECEASED THROUGH LRs
(i) Smt. Mithlesh (wife);
(ii) Mr. Yogender Kumar (son);
(iii) Ms. Ranjana Chauhan (daughter);
(iv) Mr. Praveen Kumar (son);
(v) Mr. Navin Kumar (son)
(vi) Mr. Vinod (son)
All R/o. 257, Bisokhar1,
Bisokhar, Modi Nagar, Ghaziabad, UP201201.
(Vide joint statement recorded on 22.11.2014 all sons/daughter
waived off/surrendered their rights (monetary benefits, if any, arising
out of this litigation) in favour of Smt. Mithlesh}.
THROUGH:
Ms. Saraswati Bhardwaj, Advocate,
L20, Tilak Hall, Karkardooma Courts,
Delhi110092 ...... Workman/Claimants/LRs
Vs.
M/s. Oriental Enterprises,
C681, Mundaka, Nangloi,
Delhi. (As per Order of Reference)
{1. Prabandhak: Shri. Avtar Singh
Messers Oriental Enterprises,
Page 1 of 20 (Anand Swaroop Aggarwal)
POLC XI/KKD/Delhi/30.01.2015
Om Prakash Singh Vs. M/s. Oriental Enterprises ID No. 267/10
Address: 881, Mundaka, Nangloi, Delhi.
Home Address: 2168, Aeroclub, Gurudwara Road,
Karol Bagh, New Delhi.
2. Manager Sh. Sompal S/o. Sh. Mewa Ram
Oriental Enterprises
As per statement of claim.} ..........Management
Date of Institution : 08.07.2010
Date of reserving for award : 28.01.2015
Date of award : 30.01.2015
AWARD :
1.TERMS OF REFERENCE Vide Order No. F.3(104)/Ref/Lab/WD/2010/1808 dated 15/03/10 Deputy Labour Commissioner (West District), Labour Department, Government of N.C.T. Of Delhi referred following industrial dispute between workman and management u/s. 10(1) (c) and 12(5) of the Industrial Disputes Act, 1947 vide Govt. of NCT of Delhi vide Labour Department Notification No. F.1/31/616/Estt/2008/7458 dated 03.03.2009 for adjudication by Labour Court No. XI: ''Whether services of Sh. Om Prakash Singh S/o Sh. Mukhtayar Singh have been illegally and/or unjustifiably terminated by the management; and if so, to what relief is he entitled?"
2. CASE OF THE WORKMAN AS PLEADED IN THE STATEMENT OF CLAIM.
i) Workman was continuously working with the management since 01.06.1989 with his hard labour and honesty on the post of 'Supervisor' and his last drawn salary was Rs. 3667/ per month. During his service tenure, workman did not give any opportunity to the management to have any complaint against him nor Page 2 of 20 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/30.01.2015 Om Prakash Singh Vs. M/s. Oriental Enterprises ID No. 267/10 there was any charge against the management. But management was not providing legal facilities as such leave book, salary slip, attendance card, weekly and yearly leave, double overtime, travel allowance, house allowance available to the workman under the Factories Act, 1948.
ii) When the workman raised demand for abovesaid facilities, management, under a conspiracy, lodged a false report no. 902/97 u/s. 379/381 IPC, at PS Nangloi, Delhi and on 12.11.1997 terminated the services of the workman without issuing any chargesheet and without making payment of earned salary, which is in violation of provisions of Section 33 and 25 F of the Industrial Disputes Act, 1947.
iii) After 13 years, workman was honourably acquitted on 29.08.2008 by court of Sh. Devender Kumar Jangla, MM Tis Hazari Courts, Delhi. After his acquittal, workman visited the management for getting service but management avoided on the pretext of 'Aajkal, AajKal' and did not put the workman on duty till the filing of the statement of claim nor paid the earned salary of workman. Workman lastly on 26.03.2009 and thereafter by lodging a report at PS Nangloi again went to the management for his reinstatement in service and earned salary but management did not reinstate the workman in service nor paid the earned salary.
iv) Workman sent demand notice on 01.08.2009 to management through Regd AD/Speed post/courier which was received by the management but management did not reply the demand notice.
v) Workman filed statement of claim before Conciliation Officer. The Conciliation Officer telephonically and through notice asked the management to appear before him but management did not appear before the Conciliation Officer. Thereafter Conciliation Officer passed an exparte order in favour of the workman Page 3 of 20 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/30.01.2015 Om Prakash Singh Vs. M/s. Oriental Enterprises ID No. 267/10 on 30.11.2009, certified copy of which shall be furnished by workman later on.
vi) Management used to take overtime work from workman for four hours daily but despite repeated demands from the workman, management did not pay overtime charges which is due from the management towards the workman to the tune of Rs. 17 Lakhs.
vii) Since the date services of workman were terminated by management, workman is unemployed and did not get service despite efforts made by workman.
With these averments, workman prayed for an award for recovery of arrears/dues payable to workman and his reinstatement in service with full back wages.
3. STAND OF MANAGEMENT AS PLEADED IN WRITTEN STATEMENT OF DEFENCE FILED UNDER THE SIGNATURES OF MR. SHYAM PAL ERSTWHILE PROPRIETOR OF M/s. ORIENTAL ENTERPRISES PRELIMINARY OBJECTIONS
(i) The Statement of claim is liable to be dismissed as the claimant has filed present claim belatedly after sleeping over the matter for more than 13 years with malafide intentions, ulterior motives, intentions and without disclosing correct facts. Management in this regard relied upon case law reported as All India Institute of Medical Sciences Vs. Sanjay Kumar & Anr. 2011 LLR 398 (Para. 13).
(ii) The claim, as filed, is prima facie misconceived since claimant wants to gain out of his own wrong by abusing process of law. The claimant was found involved in commission of a serious offence of theft of leather piece from the establishment on 12.11.1997 at 6.00 p.m. and against the said offence an FIR No. 902/1997 was lodged against the claimant. Thereafter claimant neither came to Page 4 of 20 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/30.01.2015 Om Prakash Singh Vs. M/s. Oriental Enterprises ID No. 267/10 join his duty nor sent any communication regarding joining of his duties. Claimant's services were neither terminated nor dismissed by the management for the commission of any alleged offence. In fact management was waiting for the outcome of the decision of the Court, where the case against the claimant was going on. The management in the meantime on 12.02.1998 and 10.03.1998 wrote two letters to claimant asking the claimant to join his duties while reserving its right to initiate appropriate action against the claimant in case the Hon'ble Court finds him guilty but claimant failed to pay any heed to the letters sent to him and did not report for his duties.
(iii) Strangely before the claimant was acquitted, management's establishment was closed down on 31.05.2007 and the legal dues were paid by management to its employees who were on the rolls of the management. Since the claimant was also on the rolls of the management, the management offered the claimant as well to collect his legal dues of Rs. 33152/ from the management and if the claimant desires that claimant be paid before the court, management is willing to do so.
(iv) Management's establishment was closed down w.e.f. 31.05.2007 and a notice to this effect was sent not only to Labour Department but to other connected departments like EPF, ESI intimating the authorities of its closure. All the employees who were on the rolls on the date of closure were paid dues in full and final as payable under law. It is settled law that once the establishment has been closed down, there cannot be any reference to this court for adjudication.
(v) Statement of claim is liable to rejected as the claimant has failed to issue a proper and valid demand notice before approaching this court and has not complied with the procedure required to be adopted as an essential ingredient before Page 5 of 20 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/30.01.2015 Om Prakash Singh Vs. M/s. Oriental Enterprises ID No. 267/10 approaching the court.
ON MERITS On merits, while denying the case as pleaded by workman in the statement of claim, management pleaded that claimant was appointed on 01.08.1991. Admittedly designation of claimant was 'Supervisor'. Management denied the case of workman as regards FIR No. 902/97 and termination of his services on 12.11.1997. As per management, management's establishment stood closed w.e.f, 31.05.2007, so there did not arise any question of the claimant visiting the management establishment after 29.08.2008. Management also denied the averments of workman regarding overtime work. Management pleaded that claimant is gainfully employed and is successfully meeting all his ends. At last management prayed to outrightly reject/dismiss the statement of claim filed by claimant.
4. REJOINDER Workman filed rejoinder to WS of management wherein workman denied the stand taken by management and reaffirmed the averments made in the statement of claim. Workman in the rejoinder pleaded that workman filed this case against 'Prabandhak' Mr. Avtar Singh but written statement of defence has been filed by Mr. Shyam Pal as Proprietor of erstwhile Oriental Enterprises but Mr. Shyam Pal has not filed any authority letter in this regard. Thus, WS filed by alleged proprietor is not acceptable to workman.
5. ISSUES On 23.05.2011, following issues were framed:
(i) Whether the claim as claimed and presented by the claimant before Page 6 of 20 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/30.01.2015 Om Prakash Singh Vs. M/s. Oriental Enterprises ID No. 267/10 this court is maintainable in the eyes of law in view of delay of 13 years? OPW/OPM
(ii) Whether the management has closed its establishment w.e.f. 31.05.2007? OPM
(iii) Whether the services of the workman were terminated illegally and/or unjustifiably by the management? OPW.
(iv) Relief, if any.
Issue No. 1 was treated as preliminary issue.
6. EVIDENCE Workman examined himself as WW1 Mr. Om Prakash Singh by filing his evidence affidavit Ex. WW1/A and relied upon documents namely Ex. WW1/1 Acknowledgment Card from the office of the R.P.F.C/Officer Incharge; Ex. WW1/2 Status Report from the office of Employees Provident Fund Organization in respect of workman herein; Ex. WW1/3 Temporary Identification Certificate issued in the name of workman by ESIC with Name, Address & Code No. of the Employer as Gaylord Enterprises No. 31 V&PO Mundaka, Delhi110041; Ex. WW1/4 Subscriber's Annual Statement of Accounts for the year 199293 in the name of workman under The Employees Provident Provident Funds Scheme 1952; Ex. WW1/5 Subscriber's Annual Statement of Accounts for the year 199495 in the name of workman under The Employees Provident Provident Funds Scheme 1952; Ex. WW1/6 Subscriber's Annual Statement of Accounts for the year 199293 in the name of workman under The Employees Provident Provident Funds Scheme 1952; Ex. WW1/7 Identity Card of workman issued by proprietor of Gaylord Enterprises (Dated 08.07.1989); Ex. WW1/8 Identity Card (duplicate) issued by ESIC in the name of workman; Ex. WW1/9 Judgment passed by Mr. Devender Kumar Jangala: MM Delhi in FIR No. 902/97 U/s. 379 IPC: PS Nangloi; Page 7 of 20 (Anand Swaroop Aggarwal)
POLC XI/KKD/Delhi/30.01.2015 Om Prakash Singh Vs. M/s. Oriental Enterprises ID No. 267/10 Ex. WW1/10 LegalcumDemand Notice dated 01.08.2009; Ex. WW1/11 Courier Receipts (two) dated 01.08.2009; Ex. WW1/12 Courier Receipts (two) dated 01.08.1991; Ex. WW1/13 Complaint made to SHO PS Nangloi. Mark A to D Identity Card issued by ESIC. Documents Ex. WW1/10 and Mark A to D were objected to by ld. counsel for the management as the same are photocopies. Workman in his crossexamination was confronted with Ex. WW1/M1X Letter dated 31.05.2007 written by Mr. Shyam Pal as proprietor of M/s. Oriental Enterprises to workman regarding closure of management w.e.f. 31.05.2007 and full and final settlement of accounts of workman to the tune of Rs. 33152/ and Ex. WW1/M2X Postal Receipt dated 31.05.2007.
Workman also examined WW2 Ms. Shakuntala Devi, Assistant from Sub Divisional Office, ESIC who produced documents Ex. X (14 pages) in respect of M/s. Oriental Enterprises (Document at page no. 13 is Mark X; at page no. 11 is Mark Y; at Page no. 9 is Mark Z and at page no. 10 is Mark Z1) and WW3 Mr. Ashwani Kumar Sr. SSA from office of EPFO who produced documents Ex. WW3/A (colly. 8 pages including Mark A) and Ex. WW3/B (3 pages). Management examined MW1 Mr. Shyam Lal and relied upon documents Ex. MW1/1 Letter (registry) dated 12.02.1998 written to workman by management; Ex. MW1/2 Letter (registry) dated 10.03.1998 written to workman by management; Ex. MW1/3 Letter dated 04.07.2007 written by management to the Labour Commissioner regarding closure of M/s. Oriental Enterprises w.e.f. 31.05.2007; Ex. MW1/4 Letter dated 25.06.2007 written by management to Regional Provident Fund Commissioner regarding closure of M/s. Oriental Enterprises w.e.f. 31.05.2007; Ex. MW1/5 Letter dated 25.06.2007 written by Page 8 of 20 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/30.01.2015 Om Prakash Singh Vs. M/s. Oriental Enterprises ID No. 267/10 management to the Joint Director, ESIC regarding closure of M/s. Oriental Enterprises w.e.f. 31.05.2007. MW1 Mr. Shyam Pal was confronted with document Ex. MW1/W1X. Authority Letter issued by Mr. Shyam Pal for M/s. Oriental Enterprises in favour of Mr. Jitesh Pandey, Saurabh Munjal and K.K.Pandey.
7. On 25.08.2014 ld. counsel for workman submitted that workman has expired. Pursuant to application u/o. 22 Rule 3 r/w. section 151 CPC, LRs were impleaded as parties vide order dated 22.11.2014 which reads as under: ''22.11.2014 Present: Ms. Mithlesh (Wife), Mr. Naveen Kumar (Son), Mr. Praveen Kumar (Son), Mr. Yogender Kumar (Son) and Ms. Ranjana Chauhan (Daughter) LRs of deceased workman with Ms. Saraswati Bharadwaj, Adv.
Mr. K K Pandey and Mr. Saurabh Munjal, Advocates for management.
Ld. counsel for LRs of workman submitted that LRs Mr. Naveen Kumar (Son), Mr. Praveen Kumar (Son), Mr. Yogender Kumar (Son) and Ms. Ranjana Chauhan (Daughter) has no objection if the benefits, if any, coming out of present litigation are given to Smt. Mithlesh wife of deceased workman Om Prakash. No objections Certificates of these LRs of also filed alongiwth their identity proofs. Let joint statement of these LRs be recorded. Joint statement of Mr. Naveen Kumar (Son), Mr. Praveen Kumar (Son), Mr. Yogender Kumar (Son) and Ms. Ranjana Chauhan (Daughter). On SA Our father Mr. Om Prakash Singh expired on 11.08.2014. Our father is survived Page 9 of 20 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/30.01.2015 Om Prakash Singh Vs. M/s. Oriental Enterprises ID No. 267/10 by our mother and ourselves as his LRs. Our grandmother has already expired. We have no objection if the monetary benefits, if any, coming out of this litigation are provided to our mother Smt. Mithlesh exclusively. We waive off / surrender our rights in this regard in favour of Smt. Mithlesh. Our father has left no will. RO & AC (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 22.11.2014 Ld. counsel for management has no objection to the abvoe statement and to the allowing of application moved under order 22 Rule 3 of CPC. Accordingly, said application is allowed. Request made for adjourning the matter for final arguments. Put up for final arguments on 03.12.2014 at 12.00 Noon. Ld. counsel for deceased workman to file vakalatnama on behalf of all the LRs of deceased workman.''
8. ARGUMENTS I have heard Ms. Saraswati Bhardwaj Adv. for workman/LRs of deceased workman and Mr. K.K.Pandey Adv. for management. In the course of arguments, ld. counsel for the workman relied upon case law reported as Muralidharan K. Vs. Management of M/s. Circle Freight Intl. 2007 (96) DRJ 14 and ld. counsel for the management relied upon case laws reported as (i) All India Institute of Medical Sciences Vs. Sanjay Kumar and Anr. MANU/DE/0432/2011 and (ii) Smt. Swapna Adhikari Vs. The State of West Bengal & Ors. 2014 LLR 498. Material available on judicial file as well as case laws relied upon by ld. counsel for the parties Page 10 of 20 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/30.01.2015 Om Prakash Singh Vs. M/s. Oriental Enterprises ID No. 267/10 perused. At this juncture, it would be relevant to refer to orders dated 14.01.2015 and 28.01.2015 which reads as under:
''14.01.2015 Present: Ms. Saraswati Bhardwaj Adv. for workman with Mr. Yoginder son of deceased workman Mr. Om Prakash Singh.
Mr. K.K.Pandey Adv. for management.
I have heard ld. counsel for the parties. In the course of arguments, ld. counsel for the workman addressed her final arguments on all the issues. However, ld. counsel for the management initially restricted his arguments regarding the preliminary issue as framed on 23.09.2011 alongwith other issues. On court query, ld. counsel for the management submitted that otherwise evidence has been led by management on all the issues as framed on 23.09.2011. In such circumstances, ld. counsel for the management was asked to address arguments on all the issues. Ld. counsel for the management addressed the arguments accordingly. Further ld. counsel for the management submitted that as per WS filed by management Mr. Om Prakash Singh was not a workman u/s. 2 (s) of the Industrial Disputes Act, 1947 but no issue in that regard was framed on 23.09.2011. Ld. counsel for the workman was asked to address the court as regards nature of duties of Mr. Om Prakash Singh and ld. counsel for the workman submitted that she shall be filing certain case laws. Let the case laws be filed within 10 days (latest by 24.01.2015) with advance copy of the citations to ld.
counsel for the management. Final arguments concluded by both the parties.
Put up on 28.01.2015 for clarification, if any/arguments/Order.
(ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 14.01.2015 + Order has been read over and explained to us and same is accepted as true.
Mr. Yoginder Ld. cl. for the workman Ld. cl. for management (LR of deceased workman) (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 14.01.2015'' Page 11 of 20 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/30.01.2015 Om Prakash Singh Vs. M/s. Oriental Enterprises ID No. 267/10 ''28.01.2015 Present: Mr. Yoginder one of the LR of the deceased workman with Ms. Saraswati Bhardwaj Adv.
Mr. Saurabh Munjal Adv. for the management.
Ld. counsel for the workman has filed one case law reported as Muralidharan K. Vs. Management of M/s. Circle Freight Intl. 2007 (96) DRJ 14. Ld. counsel for the workman submitted that in view of this case Mr. Om Prakash Singh deserves to be treated as a workman u/s. 2 (s) of the Industrial Disputes Act, 1947. Also ld. counsel for the workman/LRs submitted that Ex. WW1/7 mentions the designation of the workman as 'Helper'. On the other hand, ld. counsel for the management submitted in view of the specific averments of the workman that workman was working as 'Supervisor' it was not necessary for the management to prove the nature of the duty of the workman.
Heard. Put up on 30.01.2015 at 4.00 P.M. for orders.''
9. My issuewise findings are as under:
At the outset, it is noted that claimant in the statement of claim pleaded that he was working with the management on the post of 'Supervisor' with his last drawn wages of Rs. 3667/. These averments were reiterated by him in his evidence affidavit Ex. WW1/A. In his crossexamination, claimant deposed that, ''........... It is correct that I was working with the management as 'Supervisor'.....''. Management in the WS also admitted that claimant was working with the management at the designation of 'Supervisor'. What is pertinent to note is that in the statement of claim or in his evidence affidavit, claimant has not at all disclosed/deposed about nature of work/duty(ies) performed by him while employed with the management. Also there is no crossexamination of MW1 Mr. Shyam Pal as regards nature of work/duty(ies) which was/were performed by Page 12 of 20 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/30.01.2015 Om Prakash Singh Vs. M/s. Oriental Enterprises ID No. 267/10 claimant while in the employment of the management. In view of this background, the inevitable conclusion is that claimant was working with the management as 'Supervisor' with his last drawn salary of Rs. 3667/ as on 12.11.1997. Ld. counsel for the claimant had submitted that one admitted document namely Identity Card Ex. WW1/7 mentions the designation of the claimant as 'Helper'. However, ld. counsel for the management submitted that this is not an admitted document . Further ld. counsel for the management submitted that this ICard purportedly has been issued by M/s. Gaylord Enterprises with alleged signature of proprietor dated 08.07.1989 and management involved herein is M/s. Oriental Enterprises which has no connection whatsoever with M/s. Gaylord Enterprises. There are no pleadings in the statement of claim regarding the connection, if any, between M/s.
Gaylord Enterprises and M/s. Oriental Enterprises. Also there are no depositions in evidence affidavit of claimant in this regard. Evidence of other witnesses examined by claimant also do not prove that M/s. Gaylord Enterprises and the management were sister's concern or earlier management was known as M/s. Gaylord Enterprises. Also there is no admission in this regard by MW1 Mr. Shyam Pal, proprietor of M/s. Oriental Enterprises. Workman in his crossexamination deposed that, ''............It is wrong to suggest that management has nothing to do with M/s. Gaylord Enterprises. I do not have any document to show that management and M/s. Gaylord Enterprises are same/sister concern. It is wrong to suggest that the document i.e. Ex. WW1/7 was filed to mislead the court........'' Thus it cannot be said that Ex. WW1/7 is an admitted document. In the facts and circumstances of the case when claimant himself has led no evidence as regard nature of his job/duty(ies) and has himself alleged/deposed to be working as Page 13 of 20 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/30.01.2015 Om Prakash Singh Vs. M/s. Oriental Enterprises ID No. 267/10 'Supervisor', the case law relied upon by the ld. counsel for he claimant does not help the claimant in any manner. In fact there is no evidence at all on judicial file as regards nature of job/duty(ies) of claimant. In such circumstances designation of claimant as 'Supervisor' has to be accepted as indicative of nature of job/duty (ies) of claimant. Thus claimant is held to be a 'Supervisor' with his last drawn salary as Rs. 3667/ as on 12.11.1997. Accordingly claimant cannot be said to be a 'workman' u/s. 2 (s) of the Industrial Disputes Act, 1947. Thus, the appropriate government was incompetent to make this 'reference' and this court as Labour Court under the provisions of Industrial Disputes Act, 1947 lacks jurisdiction to decide the matter in dispute.
HOWEVER AS BOTH THE PARTIES HAVE ALREADY LED THEIR EVIDENCE ON ALL THE ISSUES, THIS COURT PROCEEDS TO DECIDE OTHER ISSUES AS WELL ON MERITS INASMUCH AS IF, MY ABOVE OBSERVATIONS ARE DISTURBED BY HON'BLE HIGH COURT/SUPREME COURT OF INDIA, THERE WOULD BE NO NEED TO REMAND BACK THE CASE FOR DECISION OF THIS COURT ON MERITS. THIS WOULD AVOID UNNECESSARY DELAY IN DISPOSAL OF THE CASE.
ISSUE NO. 2
''Whether the management has closed its establishment w.e.f. 31.05.2007? OPM'' In this regard, workman/WW1 Mr. Om Prakash Singh deposed as under: ''It is wrong to suggest that the management establishment was closed down w.e.f. 31.05.2007. It is wrong to suggest that the management had intimated the concerned authorities about the closure. I am not aware whether the management had paid full and final dues of all the workman employed by the management at the time of closure of the management. Vol. The management had not paid my full and final dues till date.
Page 14 of 20 (Anand Swaroop Aggarwal)
POLC XI/KKD/Delhi/30.01.2015 Om Prakash Singh Vs. M/s. Oriental Enterprises ID No. 267/10 Presently the management is running its operations from Mundka and they have also other branches in other states as well. I am having the proof to show that the management running its business. I have not placed any document on record to prove the same. I even cannot bring any proof in this regard.
In view of underlined portion of depositions of workman, it can be said that workman has failed to prove that management has not closed its establishment w.e.f 31.05.2007. On the other hand, by reason of evidence led by management oral as well as in the nature of documents Ex. MW1/3, Ex. MW1/4 and Ex. MW1/5, the possibility of management having closed its establishment cannot be ruled out altogether. WW2 Ms. Shakuntala Devi in her crossexamination deposed that, ''.............It is correct to suggest that management has intimated the ESI Department through letter dated 25.06.2007 regarding closure of the establishment w.e.f. 31.05.2007''. Depositions of MW1 Mr. Shyam Pal to the effect that, ''........It is correct that workman had come to meet me at the address i.e. C681, Mundaka. Vol. I met with the claimant in Mundaka as I had left my residence. And I called the workman at this address to give him a precise address of meeting otherwise we did not have any other address to meet in Mundaka......'' do not prove that management has not closed its establishment with the name of M/s. Oriental Enterprises. The fact that management did not publish any public notice in any daily newspaper regarding closure of management establishment does not by itself in anyway affect the case of management. Thus, by applying the principle of preponderance of probabilities, it is observed that management has been able to discharge onus regarding this issue. Issue is decided in favour of management.
Page 15 of 20 (Anand Swaroop Aggarwal)
POLC XI/KKD/Delhi/30.01.2015 Om Prakash Singh Vs. M/s. Oriental Enterprises ID No. 267/10 ISSUE NO. 1 ''Whether the claim as claimed and presented by the claimant before this court is maintainable in the eyes of law in view of delay of 13 years? OPW/OPM'' ISSUE NO. 3 ''Whether the services of the workman were terminated illegally and/or unjustifiably by the management? OPW'' Both the issues interconnected are being taken up under a common discussion. At the outset, it is noted that the case laws relied upon by ld. counsel for management are not applicable in this case inasmuch as case law of All India Institute of Medical Sciences Vs. Sanjay Kumar and Anr. MANU/DE/0432/2011 deals with a case where act of appropriate government in making a 'reference' u/s. 10 of the Industrial Disputes Act, 1947 was challenged before Hon'ble Delhi High Court and Hon'ble Delhi High Court quashed the 'reference'. This Court as Labour Court cannot quash the reference or determine the validity of the act of appropriate govt. in making a reference u/s. 10 of the Industrial Disputes Act, 1947 and this court is bound to decide the reference on merits keeping in view the averments made in statement of claim. The other case law is also not applicable inasmuch as the said case law pertains to a claim filed u/s. 2 A (2) of the Industrial Disputes Act, 1947 and present claim has not been filed u/s. 2 A (2) of the Act but has been filed pursuant to a 'reference' of appropriate govt. u/s. 10 of the Industrial Disputes Act, 1947. Thus claim filed in this case cannot be said to be not maintainable, as such, on account of alleged delay of 13 years. Delay, if any, can be considered to be a relevant factor by this court while granting/moulding the relief to the workman. The abovesaid case laws do not help the management in this case. Issue Page 16 of 20 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/30.01.2015 Om Prakash Singh Vs. M/s. Oriental Enterprises ID No. 267/10 No. 1 is accordingly decided against the management.
IN THIS CASE, as per workman, Mr. Avtar Singh is the 'Prabandhak' and Mr. Sompal is the Manager. As per documents brought on record by WW2 Ms. Shakuntala Devi, Mr. Shyam Pal is the proprietor of M/s. Oriental Enterprises. Similar is the position as per documents brought by WW3 Mr. Ashwani Kumar. WW1 Mr. Om Prakash Singh in his crossexamination deposed that, ''............It is correct that I have withdrawn my contribution from PF organization. It is correct that I have filed withdrawn from and the same was signed by me, filed by Sompal and was submitted by Sompal ........''. This also suggest that Mr. Sompal (or Shyam Pal) is the proprietor of management. MW1 Mr. Shyam Pal in his cross examination deposed that, ''.................It is wrong to suggest that the proprietor of M/s. Oriental Enterprises was Mr. Avtar Singh...........'' . No other evidence has been led by workman to show that Mr. Avtar Singh is the proprietor of management. Merely because Mr. Shyam Pal received the summons sent for service of management for 24.01.2011 by describing himself as Manager, in the facts and circumstances of this case, does not mean that Mr. Shyam Pal is not the proprietor of management or that Mr. Avtar Singh is the proprietor of management. Also it is noted that MW1 Mr. Shyam Pal has not been confronted with report of Process Server on the summons sent for service of management for 24.01.2011. Had Mr. Shyam Pal would have been confronted with the said report, he (MW1Shyam Pal) would have explained whether he (MW1 Shyam Pal) was ownercummanager or manager simplicitier. Thus, Mr. Shyam Pal is observed to be the proprietor of M/s. Oriental Enterprises.
As per workman when workman raised demand for legal facilities Page 17 of 20 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/30.01.2015 Om Prakash Singh Vs. M/s. Oriental Enterprises ID No. 267/10 management under conspiracy lodged false FIR No. 902/97 u/s. 379/381 IPC at PS Nangloi and on 12.11.1997 management illegally terminated the services of workman. Except the oral bald averments/depositions of workman there is nothing on judicial file to show that workman during employment with management at any point of time raised demand for legal facilities as alleged/deposed. Somewhat inconsistent with these averments/depositions WW1 Mr. Om Prakash Singh in his crossexamination deposed that, ''............It is correct that an FIR No. 902/97 u/s 379 & 381 was lodged against me. Vol. as at that time I had demanded one hour break/lunch. I had not made the demand for one hour break/lunch in writing. I had demanded only orally.......''. There is nothing in the statement of claim/evidence affidavit of workman to suggest that abovesaid FIR was lodged against the workman because workman had demanded for one hour break/lunch. Thus, case of workman that management terminated his services on 12.11.1997 when workman raised demand for legal facilities is not worth credence from a judicial mind. Workman has not pleaded whether workman was arrested or not in the abovesaid theft case, or, if arrested, for how many days workman remained in judicial custody. Workman has not even pleaded as to when immediately after 12.11.1997 workman reported for duty but management denied the same to workman. In this regard WW1 Mr. Om Prakash Singh in his crossexamination deposed that, ''............After lodging the FIR I had visited the management establishment for joining the duties with management. I do not remember the date when I had visited the management. It was during the period when FIR was lodged. I had not visited the management establishment after two years of lodging the FIR. Vol. The management had assured that they will keep me back on duty Page 18 of 20 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/30.01.2015 Om Prakash Singh Vs. M/s. Oriental Enterprises ID No. 267/10 after my criminal case is over.......''. Workman in his crossexamination deposed that, ''............I have not written any letter to the management in regard to joining my duties.........''. Above discussion suggest that management did not terminate the services of workman on 12.11.1997 as alleged by workman. Nonfiling of postal receipts with regard to Ex. MW1/1 and Ex. MW1/2 does not prejudice the case of management inasmuch as it is for the workman to prove that management illegally terminated his services in terms of averments made by workman in the statement of claim.
The version of workman that management did not reinstate the workman in service after his acquittal vide judgment dated 29.08.2008 (Ex. WW1/9) does not inspire confidence inasmuch as management stood already closed on 31.05.2007. As per management, management had offered to pay dues payable to the workman on account of closure of the management on 31.05.2007 to the tune of Rs. 33,152/ vide Ex. WW1/M1X which was dispatched to the workman vide postal receipt Ex. WW1/M2X. In his crossexamination workman in this regard deposed that, ''..........I am not aware whether the management had made any offer to me to collect my legal dues of Rs. 33,152/ from the management. I am not willing to collect Rs. 33,152/ from the management. Vol. I am interested to take my complete full and final dues from the management..........''. In view of postal receipt Ex. WW1/M2X dispatch, as such, of letter Ex. WW1/M1X to the workman cannot be disputed. What deserves to be noted is that workman did not specifically deposed that no such offer to pay his legal dues was made by the workman and surprisingly workman deposed that workman is not aware about any offer made to him by the management to collect dues of Rs. 33,152/. Workman could have Page 19 of 20 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/30.01.2015 Om Prakash Singh Vs. M/s. Oriental Enterprises ID No. 267/10 simply/emphatically deposed that no such offer was made to him but he did not depose so. In view of postal receipt Ex. WW1/M2X workman can be taken to have been served with Ex. WW1/M1X in normal course of postal business. Admittedly workman has withdrawn his PF deposits regarding employment of the workman with the management with the assistance/cooperation of the management vide documents Ex. WW3/A (8 pages). In view of above detailed discussion, it can be safely concluded that workman has failed to establish on judicial file that management terminated the services of workman illegally/unjustifiably in terms of averments made by workman in the statement of claim. Issue No. 3 is decided against the workman.
ISSUE NO. 4
Relief, if any.
In view of my findings on above issues, workman is held to be entitled to no relief. Further it is observed that this court lacked the jurisdiction to decide the matter in dispute inasmuch as Mr. Om Prakash Singh does not fall within the definition of 'workman' u/s. 2 (s) of the Industrial Disputes Act, 1947. Parties to bear their own costs.
10. Reference is answered accordingly.
11. A copy of the award be sent to the Office of the Deputy Labour Commissioner (District West) for further necessary action.
12. File be consigned to Record Room after completing due formalities. (Pronounced in the open court on 30.01.2015) (ANAND SWAROOP AGGARWAL) POLC XI/KKD/Delhi Page 20 of 20 (Anand Swaroop Aggarwal) POLC XI/KKD/Delhi/30.01.2015