Delhi District Court
The vs The on 6 March, 2012
IN THE COURT OF SH. MAHAVIR SINGHAL: POIT,
KARKARDOOMA COURTS, DELHI
CC. No. 71/10/05
The Workman
Sh. Khagan Dass s/o Sh. N. Mohan Dass, c/o All India General Mazdoor
Trade Union, 170, Balmukund Khand, Giri Nagar, Kalkaji, New Delhi-19
Versus
The Management
1. M/s Ranbaxy Laboratories Ltd., 25, Ghanshyam House, Nehru Place,
New Delhi -19. Also at: Plot No.89,90,91, Sector 32, Gurgaon,
Haryana.
2. Sh. Amar Singh (Contractor), B 337, Lajpat Nagar, Sahibabad,
Ghaziabad, UP.
3. M/s Neha Hospitality Services Pvt. Ltd. (Contractor) H.R. 118/6, Pul
Prahladpur, Surajkund Road, New Delhi 110044.
4. M/s D S Rawat (Contractor) R/OG/934, Ram Park Extension, Loni,
Ghaziabad, UP.
Date of institution: 17.03.2005
Date of reserving judgment: 22.02.2012
Date of Pronouncement 06.03.2012
AWARD
1. Workman has filed present complaint u/s 33-A of Industrial Disputes
Act, stating that industrial dispute bearing I.D. No.62/04 in respect of present
workman and 13 others, regarding their demands of 'equal pay for equal
work' and regularisation is pending before this Hon'ble Tribunal. It is
CC. No. 71/10 Page 1 of 14
submitted that workman Khagan Dass and 13 others, in the above mentioned
dispute, have been working with the management no.1 at different posts. It is
submitted that the management no.1 has been showing these workmen to be
of different alleged contractors. It is submitted that workman has been
working with management since 1.3.93 as Peon at last drawn salary of
Rs.2850/- pm. It is further stated that facility of P.F. and ESI is being
provided to them and in record of both the departments, workmen have been
shown as employees of M/s Ranbaxy Laboratories Ltd. It is submitted that
the alleged contractors are employees of management no.1 and that the
workmen have been working under the supervision and control of officers of
management no.1 and the wages were also paid by officers of management
no.1 by obtaining their signatures on blank register.
2. It is submitted that management no.1 transferred its business to
Gurgaon on 7.3.05. It is submitted that concerned workmen in the ID
No.62/04 were being threatened and forced by management no.1 to give their
resignations. It is submitted that management no.1 obtained resignations from
some of the workmen forcibly and then allowed them to work at Gurgaon
office. It is submitted that workman Khagan Dass was not taken to Gurgaon
office of management no.1 and his services were terminated on 7.3.05
without notice, charge sheet and any payment, during the pendency of
Industrial Dispute, in violation of Section 33-A of Industrial Disputes Act.
3. It is prayed that management no.1 be directed to allow the workman
to continue his duty at Gurgaon office of management no.1 and his service
conditions be not changed during the pendency of the Industrial Dispute. It is
further prayed that workman be granted reinstatement with back wages and
increments.
4. In the written statement filed by the management of M/s Ranbaxy
CC. No. 71/10 Page 2 of 14
Laboratories Ltd, it is stated that there is no employer-employee relationship
between the parties. It is stated that the claimant was never employed by the
management. It is stated that claimant was employed by management no.2
and had been deputed by it to accomplish some jobs at the premises of
management. It is submitted that present complaint against management no.1
is without jurisdiction. It is submitted that pre-condition for maintainability of
the complaint under section 33A of I.D. Act is violation of Section 33 of the
said Act. It is submitted that there is no contravention of Section 33 of I.D.
Act either by the management no.1 or by management no.2. It is submitted
that complainant is performing his duty under the direct supervision and
control of management no.2 and is getting his salary from management no.2.
It is submitted that complainant has filed baseless claim for equal pay for
equal work or arrears for less payment and/or regularisation against the
management no.1. It is submitted that since complainant is no where in the
employment of management no.1, he is not entitled to any relief for equal pay
for equal work and/or arrears for less payment and/or regularisation by the
management no.1.
5. It is submitted that the management no.2 was not having their PF and
ESI code numbers, the management no.1 had allowed the management no.2
to deposit the contributions of PF and ESI, of their employees in the code
numbers of the management no.1 so that the complainant is not deprived of
his statutory benefits. It is submitted that by depositing the amount of PF and
ESI in the Code Number of management no.1, complainant does not become
employee of management no.1. It is submitted that management no.1 never
gave any instructions to the employees engaged by management no.2,
complainant was not paid salary in the blank register after obtaining
signatures of complainant as vaguely alleged. It is submitted that
CC. No. 71/10 Page 3 of 14
management no.1 never threatened the complainant at any time or asked him
to submit his resignation as alleged vaguely. It is submitted that management
has never received any resignation letter as alleged vaguely. It is submitted
that management no.1 has never terminated the services of complainant w.e.f.
7.3.05 and infact, he is still in the employment of management no.2 and
getting his wages directly from it and as such, the whole complaint filed by
the complainant is premature.
6. In the written statement filed by management no.2 M/s Amar Singh,
it is stated that complainant submitted his resignation to management no.2
and requested for full and final settlement of his accounts and thereafter,
management no.2 settled his accounts in full and final and relieved him from
its employment. Therefore, complaint filed against management no.2 has
become infructuous. It is submitted that present complaint against
management no.2 is without jurisdiction. It is submitted that pre-condition for
maintainability of the complaint under section 33A of I.D. Act is violation of
Section 33 of the said Act. It is submitted that there is no contravention of
Section 33 of I.D. Act either by the management no.1 or by management
no.2. It is submitted that the management no.2 was not having their PF and
ESI code numbers, the management no.1 had allowed the management no.2
to deposit the contributions of PF and ESI, of their employees in the code
numbers of the management no.1 so that the complainant is not deprived of
his statutory benefits. It is submitted that complainant is no where in the
employment of management no.2 as he was relieved from its services.
7. It is submitted that management no.2 never threatened the
complainant at any time or asked him to submit his resignation as alleged
vaguely. It is submitted that management no.2 has never received any
resignation letter from complainant. It is submitted that management no.1
CC. No. 71/10 Page 4 of 14
has never terminated the services of complainant w.e.f. 7.3.05.
8. Rejoinder has been filed by claimant to the written statement of
management no.1, wherein he has denied all the averments made in the
written statement and have reiterated the contents of statement of claim.
9. On the basis of pleadings of the parties, following issue were framed
by Ld. Predecessor on 17.07.2005:-
1. Whether the respondents have violated the provisions
of Section 33 of ID Act? OPC
2. Relief.
10. On 02.04.2008, following additional issue was framed by Ld. Predecessor:-
Whether there exists relationship of employer and employee between the complainant and the management no.1? OPC
11. Workman examined himself as CW 1. In his affidavit filed by way of examination-in-chief, he has reiterated the contents of statement of claim. In his cross-examination CW 1 has admitted that he was never issued appointment letter by M/s Ranbaxy Laboratories Ltd. It is admitted that he was not getting salary as per salary register maintained by management co. It is denied that he gave resignation to management no.2. It is denied that he was paid full and final settlement of his account by management no.2 after resignation. It is denied that he has no employer employee relationship with management no.1.
12. In his additional affidavit filed in respect of additional issue regarding employer-employee relationship, CW 1 has deposed that manager of HR Department of Ranbaxy Laboratories Ltd had given Nomination & Declaration Form of Ranbaxy Employees' Provident Fund Trust to him, which he filled and submitted to them. Copy of the said form has been proved CC. No. 71/10 Page 5 of 14 as Ex. WW1/14. It is deposed that above forms are filled by employees of management no.1. It is deposed that his monthly PF contributions was deducted from his salary and was deposited in PF Account No.DL/682/1546 of management no.1. Copy of the PF statement has been proved as Ex. WW1/16. It is deposed that his ESI contribution is deposited in ESI Code No.11-1243-34 of management no.1. Copy of ESI Slip has been proved as Ex. Ww1/17. WW 1 has deposed that he has been working under direct supervision and control of management no.1. It is deposed that he signs regularly the attendance register, key register and salary register given to him by management no.1. It is deposed that Key register is maintained in the name of management no.1 and he puts his signatures on the same. It is deposed that other two register are blank at the spot and after getting his signatures and other employees' signatures, management no.1 forged and fabricted these documents as these documents are in the custody of management no.1. It is deposed that management no.1 puts the seal of contractors on them malafidely and illegally.
13. It is deposed that for the year 1993-98 he was given PF statement by management no.1, but later on, management no.1 started putting seal of contractors malafidely and illegally to dispute his employment with it. It is deposed that management no.1 did not have any license for engagement of contractor labour as per CLRA Act.
14. In his cross-examination, WW 1 has deposed that management no.1 did not issue him any appointment letter and he never sent a letter to management calling upon them to issue the same. A question was put to WW 1 whether he can tell the name of any employee employed with management no.1 at the time of his alleged appointment, who has been issued letter of appointment. WW 1 replied in the affirmative and told that their CC. No. 71/10 Page 6 of 14 names are Jagdish Singh, Darshan Singh and Mahipal singh, who were employed as peon. It is deposed that these persons were working as Office Assistant with management no.1 and besides, he also used to work as an employee of management no.1. It is deposed that management no.1 never issued him any letter stating his designation as Office Assistant and he never called management no.1 to issue him such orders. It is deposed that he used to mark attendance in another register, whereas the said 3 persons used to mark their attendance in another register, in which name of management no.1 used to be mentioned. It is denied that there used to be stamp of contractor on the register in which he used to mark his attendance. He has voluntarily stated that he used to mark attendance in plain register. It is deposed that he used to get wages in cash and the 3 other persons namely Jagdish Singh, Darshan Singh and Mahipal Singh had been getting their wages by cheque. It is deposed that he had signed the resignation letter on 10.02.2005. It is deposed that a sum of Rs.37050/- was deposed in his bank account. It is denied that he was never employed by management no.1. It is denied that said management did not terminate his services on 07.03.2005. It is denied that he was employee of M/s Amar Singh. He did not know, who deposited amount of Rs.37050/- approximately in his bank account. WW 1 could not admit or deny the suggestion that said amount was deposited in his account by M/s Amar Singh towards full and final settlement of his legal dues. It is denied that M/s Amar Singh had issued him Bank Draft towards full and final settlement and he deposited the same in his bank account. It is deposed that he had filed another case regarding his removal from service.
15. Management no.1 has examined Sh. Mukesh Gupta, its Personnel Officer as MW 1. In his affidavit, he has reiterated the contents of written statement. In his cross-examination, he has denied that workman Khagan CC. No. 71/10 Page 7 of 14 Dass has been employed as Peon with the management since 1988. It is denied that workman was ever employed by M/s Ranbaxy Laboratories Ltd. It is denied that officials of management no.1 had obtained signatures of complainant forcibly on blank register. It is deposed that Amar Singh Contractor does not have his office in premises of management no.1. It is denied that complainant had not signed memorandum of settlement with management no.2, copy of which is Ex. MW1/1 and that his signatures were obtained on blank papers. It is denied that management has contravened the provision of Section 33 of ID Act. It is denied that complaint used to be paid wages by management no.1. It is denied that complainant has been performing his duties with management no.1 under its direct control and supervision.
16. In his additional affidavit, MW 1 has denied the relationship of employee and employer between complainant and management no.1 and has more or less reiterated the contents of written statement of management no.1.
17. In his cross-examination, MW 1 has admitted in respect of employees working with Ranbaxy Laboratories Ltd. that their PF, after deduction by Ranbaxy, is deposited in Ranbaxy Employees Provident Fund Trust. MW 1 is not aware whether management no.1 deducted PF of Khagan Dass and deposited the same in the PF account of Ranbaxy Employees PF Trust. It is admitted that ESI Code of Ranbaxy laboratories Ltd is 11-1243/34 and ESI Contribution of Khagan Dass was deposited in the same. It is denied that Amar Singh was employee of management no.1. MW 1 could not say without checking the record as to whether in the year 1993-94 the said Amar Singh was a contractor or not. It is admitted that there is no signature of Amar Singh Contractor on any of the documents Ex. MW1/9 (collectively). It is denied that complainant has been working with management no.1 since 1993.
CC. No. 71/10 Page 8 of 14It is deposed that no settlement was arrived at between Ranbaxy and Khagan Dass and, therefore, question of such settlement, being inoperative and void, does not arise.
18. I have heard arguments from Sh. Rajesh Anand, Ld. Counsel/AR for workmen and Sh. Raj Birbal & Ms. Raavi Birbal, Ld. Counsels/ARs for management. I have perused the entire record. My findings on the issues are as under:-
19. Findings on issue 1 Issue no.1 is : Whether the respondents have violated the provisions of Section 33 of ID Act? OPC.
20. First of all, objection of management no.2, taken in the written statement, shall be dealt with. In the written statement filed by management no.2 M/s Amar Singh, it is stated that complainant submitted his resignation to management no.2 and requested for full and final settlement of his accounts and thereafter, management no.2 settled his accounts in full and final and relieved him from its employment. Therefore, complaint filed against management no.2 has become infructuous.
21. Order sheet dated 04.04.09 in main connected I.D. No.62/04, is reproduced as below:
04.04.09 Present: Khagan Dass workman in person.
AR for the management Ms. Raavi Birbal.
An application has been moved on behalf of workman Khagan Dass that management of Ranbaxy Ltd. has forged the alleged settlement and infact no such settlement has taken place. Copy of application given. AR for the management submits that if workman is not ready to adhere to the settlement, let him refund the amount, which has been paid to him under the settlement. Let statement of workman and AR for the management be recorded:
Statement of Khagan Dass, workman and Ms. Raavi Birbal AR for the management.
On SA CC. No. 71/10 Page 9 of 14 Without prejudice to rights and contentions of the parties, the workman shall refund the amount of Rs.37559/- paid to him vide cheque no.016907 dated 10.2.95 D/o Allahabad Bank and the alleged settlement may be taken as terminated and ineffective.
RO&AC (BABU LAL) POIT-II,KKD,DELHI/04.04.09 In view of the statement of the workman and AR for the management alleged settlement has become ineffective subject to the payment of Rs.37559/- to be paid by the workman on next date of hearing to the management. Application of the management is accordingly disposed off so far as Khagan Dass is concerned. So far settlement with other workmen are concerned, management will prove the same in its evidence.
Case is fixed for payment of amount by Khagan Dass and management evidence on 13.4.09.
(BABU LAL) POIT-II, KKD, DELHI
22. On the next date of hearing i.e. 13.4.2009, workman tendered the cheque of Rs.37559/- in the name of Ranbaxy Laboratories Ltd. However Ld. AR for management submitted that since settlement had taken place between workmen and contractor, cheque should be paid to contractor itself and then, the cheque was ordered to be kept on record.
23. In view of statement of parties and order of Ld. Predecessor, as reproduced above, the settlement between the complainant and management no.2 becomes ineffective and thus, plea of management no.2 that complaint has become infructuous on the abovestated ground, becomes baseless and cannot be entertained.
24. Now, coming to the main issue, Section 33 of Industrial Disputes Act, 1947 is reproduced as under:-
Condition of service, etc., to remain unchanged under certain circumstances during pendency of proceedings -
(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before an arbitrator or a Labour Court or Tribunal or CC. No. 71/10 Page 10 of 14 National Tribunal in respect of an industrial dispute, no employer shall -
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute.
save with the express permission in writing of the authority before which the proceeding is pending.
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman -
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. (3) Notwithstanding anything contained in sub-section (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute -
(a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceeding; or
(b) by discharging or punishing, whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending. (4) In every establishment, the number of workmen to be recognised as protected workmen for the purposes of sub-
section (3) shall be one per cent of the total number of workmen employed therein subject to a minimum number CC. No. 71/10 Page 11 of 14 of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the appropriate Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen and recognised as protected workmen.
(5) Where an employer makes an application to a conciliation officer, Board, an arbitrator, a Labour Court, Tribunal or National Tribunal under the proviso to sub- section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, within a period of three months from the date of receipt of such application, such order in relation thereto as it deems fit :
Provided that where any such authority considers it necessary or expedient so to do, it may, for reasons to be recorded in writing, extend such period by such further period as it may think fit.
Provided further that no proceedings before any such authority shall lapse merely on the ground that any period specified in this sub-section had expired without such proceedings being completed.
25. In Blue Star Employees Union vs. Ex. Off. Principal Secy To Government & Anr, AIR 2000 SC 3110, Hon'ble Supreme Court has held that :
A complaint can be made to the Tribunal under Section 33A of the Act if there has been violation or contravention of the provisions of Section 33 of the Act and if it is found that there has, in fact been such a contravention the Tribunal can proceed to adjudicate the dispute contained in a complaint on its merits. Thus violation or contravention of the provisions of Section 33 of the Act would be the basic question that arises for consideration and before giving any relief to an aggrieved employee under this section, the Tribunal has to find out whether the employer's action falls within one of the following prohibitions contained in Section 33 of the Act :
(i) If the dispute pending adjudication, has nothing to do with the alteration in conditions of service of a workman in contravention of Section 33 (1) (a) of the Act or alteration of conditions of service of a 'protected workman' within Section 33 (1) of the Act.
(ii) Discharges or punishes a workman by dismissal or CC. No. 71/10 Page 12 of 14 otherwise for a misconduct connected with the pending dispute, without obtaining prior express permission in writing of the appropriate authority as required by Section 33 (1) (b) of the Act;
(iii) Discharges or punishes a 'protected workman' by dismissal or otherwise for a misconduct not connected with the pending dispute, without obtaining prior express permission in writing of the appropriate authority as required by Section 33 (3) (b) of the Act read with Section 33 (1) (b) of the Act; or
(iv) Discharges or punishes a workman by dismissal or other wise for a misconduct not connected with the pending dispute, without complying with the provisions of proviso to Section 33 (2) (b) of the Act.
Thus, the contravention of the provisions of Section 33 of the Act is the foundation for exercise of the power under Section 33 A of the Act. If this issue is answered against the employee, nothing further survives for consideration or action by the Tribunal under Section 33 A of the Act. In other words, an application under Section 33 A of the Act without proof of contravention of Section 33 of the Act would be incompetent. (emphasis added).
26. In view of above proposition of law and as per Section 33 (1)
(b) and (2) (b) of I.D. Act, Complaint u/s 33A of the Act is maintainable only in case of discharge or punishment by dismissal or otherwise for misconduct committed by the workman. It is not the case of complainant that he has been dismissed from service for any misconduct. Thus, section 33 of I.D. Act is not applicable in the present case. Hence, it is held that respondents have not violated the provisions of Section 33 of I.D. Act.
27. Findings on additional issue framed on 02.04.2008 Additional issue is : Whether there exists relationship of employer and employee between the complainant and the management no.1? OPC
28. Issue of relationship of employer and employee between the claimant and management no.1 has been dealt with in main I.D. No.62/04, on the basis of which present complaint u/s 33A has been filed. Thus, this issue is not CC. No. 71/10 Page 13 of 14 relevant in the present complaint. Additional issue is decided accordingly.
29. Relief.
In view of my findings on issue no.1, present complaint u/s 33A of I.D. Act is dismissed hereby, being not maintainable. Award is passed accordingly.
30. Copy of this award be sent to GNCT of Delhi for publication. File be consigned to Record Room.
Announced in open courts
on 06.03.2012 (MAHAVIR SINGHAL)
Presiding Officer, Industrial Tribunal
Karkardooma Courts, Delhi
CC. No. 71/10 Page 14 of 14