Delhi District Court
Aadhar Card And Phone Number Of Workman vs (Lir No.376/18) (Sh. Dev Kumar Pandey ... on 24 May, 2023
IN THE COURT OF MS. MANSIHA TRIPATHY
PRESIDING OFFICER : LABOUR COURT-III
ROUSE AVENUE COURTS COMPLEX : NEW DELHI.
CNR No.DLCT-13-000175-2018
Ref. No. :F.3(353)/17/Ref./wd/Lab./1095
Dated : 15.09.2017
L.I.R. No. 376/2018
Sh. Dev Kumar Pandey, S/o Sh. Rampat Pandey,
Age - 57 years, Mob. No.9971418573,
R/o H. No.F-241/1, Gayatri Colony,
Baljit Nagar, Near Nepali Mandir,
New Delhi - 110008
Through Sh. Suresh Bhardwaj, Secretary,
Mob. No.9818014438,
Rashtiya Mazdoor Sangh (Regn. No.1433),
T-44-D, Karampura, New Delhi - 110015.
The requisite details of the workman in compliance of judgment
of Hon'ble High Court of Delhi titled as Director General of
Works (CPWD) Vs. Laljeet Yadav & Ors. W.P.(C) No.2540-
2021, DOD 16.07.2021 are as follows:
Permanent Address of the workman:
R/o H. No.F-241/1, Gayatri Colony,
Baljit Nagar, Near Nepali Mandir, New Delhi - 110008
Any other address of workman available on record:
Details not furnished.
Name and Mobile Number of A.R. for workman:
Sh. T. D. Shukla, Ld. AR for workman,
Details of mobile number not furnished.
Details of one of immediate family member of the workman:
Details not furnished.
Aadhar Card and Phone Number of workman:
Details not furnished. .....Workman.
Versus
(LIR No.376/18) (Sh. Dev Kumar Pandey Vs. M/s Bharat Arkimetal) Page No.1 of pages 11
M/s Bharat Arkimetal
Through its Proprietor Sh. Bharat Bhushan Gandhi,
Mob. No.9811016978,
622/1, Anand Parvat Industrial Area,
Near Ramjas School No.2, New Delhi-110005.
(Sh. Kailash Kumar Jonwal and Sh. Sanjay Sharma,
Ld. Authorized Representative of Management,
Chamber No.707, Western Wing,
Tis Hazari Courts, Delhi-110054.
Mobile No.9810079644, 9810479644) .....Management.
Date of Institution of the case : 23.01.2018
Date on which Award is passed : 24.05.2023
-:A W A R D:-
1.The workman Sh. Dev Kumar Pandey, raised an industrial dispute regarding the termination of his services by the management of M/s Bharat Arkimetal. The appropriate Government on being satisfied regarding the existence of Industrial Dispute between the parties, made a reference for adjudication. The said reference is as under:-
"Whether the services of workman Sh.
Dev Kumar Pandey S/o Sh. Rampat Pandey 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. Thereafter, notice was issued to the workman, who filed statement of claim. Brief facts necessary for adjudication of present dispute as alleged by the workman are that he had been working with the management since 05.01.1990 as Marketing Purchase on the last drawn salary of Rs.9,500/- per month, which was less than the minimum wage prescribed by the government of NCT of Delhi from time to time. During the (LIR No.376/18) (Sh. Dev Kumar Pandey Vs. M/s Bharat Arkimetal) Page No.2 of pages 11 course of his employment, he discharged his duties honestly and diligently to the entire satisfaction of the management. At the time of his appointment or during his entire tenure of service, neither appointment letter/ identity card was issued to him nor legal benefits such as attendance card, appointment letter, salary slip, earned leave and casual leave, ESI card, EPF, bonus and overtime wages were given to him by the management, despite his repeated verbal requests. On his persistant demand for these benefits, the management got annoyed and illegally terminated his services on 12.04.2017 without issuing any show cause notice or chargesheet and also illegally withheld his earned wages from 01.03.2017 till 11.04.2017. The workman sent a Demand Notice to the management through speed post on 13.04.2017 but despite service, the management neither replied to the said notice nor reinstated his services nor paid his dues. It was claimed that since illegal termination of his services, the workman has been unemployed. Hence, he has claimed reinstatement with full back wages, continuity of his services and all consequential benefits.
3. Notice of the statement of claim was sent to the management who had appeared and contested the claim of the workman by filing its Written Statement, wherein it stated that the that workman joined the management in the year 2000 as Peon and was drawing monthly wages of Rs.12,500/- (which was more than minimum wages prescribed by the government at the relevant time) alongwith all the facilities to which he was entitled and which were applicable to the management. It further stated that the management had paid the wages uptil March 2017 to the workman and nothing remained due to him against the (LIR No.376/18) (Sh. Dev Kumar Pandey Vs. M/s Bharat Arkimetal) Page No.3 of pages 11 management. It further stated that the services of the workman have never been terminated by the management, rather, the workman left the employment of management on his own by remaining unauthorizedly absent w.e.f. 09.04.2017. The workman was habitual of remaining unauthorizedly absent from duty and had remained unauthorizedly absent from 24.03.2017 to 06.04.2017 as well and despite repeated phone calls from management calling upon him to join his duty, he failed to join back on duty, yet no adverse action has been taken by the management against the workman and his name continues to be on the rolls of management. It stated that workman was at liberty to still join his duties with the management subject to its right to take disciplinary action for his unauthorized absenteeism. It further stated that the workman had left the services of management as he got better employment elsewhere and was earning much more than what he was getting with the management. It denied receipt of legal demand notice and agitated that the claim of workman was liable to dismissed.
4. In rejoinder to the Written Statement of the management, all the averments of the management were denied and that of Statement of claim were reaffirmed by the workman.
5. From the pleadings of the parties, vide order dated 23.07.2019 the following issues were framed:-
(i). Whether the service of the workman has
been terminated illegally and
unjustifiable by the management or
workman had abandoned the job? OPW
(LIR No.376/18) (Sh. Dev Kumar Pandey Vs. M/s Bharat Arkimetal) Page No.4 of pages 11
(ii). Relief.
6. No other issue arose or was pressed for and
accordingly the case was adjourned for evidence of the workman.
7. Thereafter, workman led his evidence by stepping into the witness box as WW1. He tendered his evidence by way of affidavit as Ex.WW1/A wherein he reiterated on oath the averments made in his statement of claim. He relied upon documents Ex.WW1/1 and Ex.WW1/2. Ex.WW1/1 is the copy of the legal demand notice dated 13.04.2017 and Ex.WW1/2 is the Postal Receipt dated 13.04.2017. Workman was cross examination by AR of the management, wherein he conceded that he has not placed on record any document to prove his employment with the management since 05.01.1990. He denied the suggestion that he was engaged by the management in the year 2000 and prior to that he was not in the employment of the management or that his last drawn wages were Rs. 12,500/- per month and not Rs. 19,500/- per month. He also conceded that he did not demand statutory benefits from the management during his service tenure. He stated that the management used to pay the wages to its workers upto 10th of each month. He further conceded that in the month of April 2017, he received the wages for the month of March, 2017 and thereafter with effect from 09.04.2017, he started absenting from his duties without prior approval or sanction of leave. He admitted that he has not approached to the management for reinstatement after filing of written statement by the management in the present case. He also conceded that he has not placed on record any acknowledgement (LIR No.376/18) (Sh. Dev Kumar Pandey Vs. M/s Bharat Arkimetal) Page No.5 of pages 11 card of document (Legal Demand Notice) Ex.WW1/1. He denied that the management never terminated his services or that he was habitual absentee from his work. He also denied that he was working with the management as peon.
8. Thereafter, on the statement of Ld. AR of workman, workman evidence was closed and case was fixed for management evidence.
9. In support of its defence, Management examined Sh. Parveen Kumar as MW-1, who tendered his evidence by way of affidavit as Ex.MW1/A wherein he reiterated on oath the averments made in the written statement of the management. He was cross examined by Ld. AR for the workman wherein he reiterated that the employees were paid their wages as per the Minimum Wages Act. He could not tell whether the workman had been paid for the period from 01.03.2017 to 11.04.2017 or that the management had received the demand notice or not. He denied that on the demand of legal facilities by the workman, the management terminated the services of the workman. He admitted that no appointment letter and identity card were issued to the workman and that the management had not placed on record attendance record of the workman for any period. He reiterated that after the workman left his job, management had called him several times and stated that the management had not terminated the services of the workman, hence there was no question of issuance of termination letter to the workman.
10. Thereafter, management evidence was closed and case (LIR No.376/18) (Sh. Dev Kumar Pandey Vs. M/s Bharat Arkimetal) Page No.6 of pages 11 was fixed for final arguments.
11. I have heard the arguments advanced by both the Ld. ARs for the parties and perused the record carefully including written submissions filed on behalf of workman.
12. My issue wise findings are as under:-
13. -:ISSUE No.1:-
Whether the service of the workman has been terminated illegally and unjustifiable by the management or workman had abandoned the job? (OPW).
13.1 The onus to prove that the services of the workman were terminated illigally and unjustifiably by the management was on the workman. On this issue the workman claimed in his statement of claim and deposed in his evidence by way of affidavit that he had been working with the management since 05.01.1990 as Marketing Purchase on the last drawn salary of Rs.9,500/- per month and due to his persistant demand for legal benefits such as such as attendance card, appointment letter, salary slip, earned leave and casual leave, ESI card, EPF, bonus and overtime wages, the management got annoyed and illegally terminated his services on 12.04.2017 while withholding his earned wages from 01.03.2017 till 11.04.2017.
13.2 However, in his cross-examination he admitted that he did not demand statutory benefits from the management during his service tenure. He also admitted that the management used to (LIR No.376/18) (Sh. Dev Kumar Pandey Vs. M/s Bharat Arkimetal) Page No.7 of pages 11 pay the wages to its workers upto 10th of each month and in the month of April 2017, he received the wages for the month of March, 2017 and thereafter with effect from 09.04.2017, he started absenting from his duties without prior approval or sanction of leave. He also admitted that he has not approached to the management for reinstatement after filing of written statement by the management in the present case.
13.3 On the other hand management witness MW1 deposed that the workman joined the management in the year 2000 as Peon and was drawing monthly wages of Rs.12,500/- alongwith all the facilities. It further deposed that the services of the workman have never been terminated by the management, rather, the workman left the employment of management of his own by remaining unauthorizedly absent w.e.f. 09.04.2017 and despite repeated phone calls from management calling upon him to join his duty, he failed to join back on duty as he got better employment elsewhere and was earning much more than what he was getting with the management. He further deposed that no adverse action was taken by the management against the workman and his name continued to be on the rolls of management and the workman was at liberty to still join his duties with the management. He also deposed that the management had paid the wages uptil March 2017 to the workman and nothing remained due to him against the management.
13.4 Thus, it is seen that testimony of the workman is full of contradictions, whereby in one breath (in his affidavit) he (LIR No.376/18) (Sh. Dev Kumar Pandey Vs. M/s Bharat Arkimetal) Page No.8 of pages 11 claimed illegal termination of his services by the management due to his persistent demand of legal facilities whereas in another breath (in his cross examination) he admitted that he never demanded legal facilities from management during his service tenure and himself started absenting from duties w.e.f. 09.04.2017 without prior approval or sanction of leave. In view of his contradictory testimony and clear admission in his cross-
examination, claim of the workman that his services were illegally terminated by the management is not substantiated. Whereas the management has taken consistent stand throughout the proceedings that the workman had himself abandoned his services due to better job opportunities and the testimony of the management witness in this regard has also been corroborated by the admission of the workman in his cross -examination that he has himself started absenting from the his duties w.e.f. 09.04.2017.
13.5 Further, the management witness has led evidence to the effect that after the continued absence of workman from his duty w.e.f. 09.04.2017, efforts were made by the management to call him back on duty by making several phone calls on his mobile phone yet the workman failed to report for duty. The deposition of management witness on this aspect has remained unrebutted as the workman has remained completely silent on this aspect and has not challenged the testimony of management witness during cross examination of the said witness. It is settled proposition of law that a party is bound to put its case to opponent's witness during cross-examination when opponent's witness appears and deposes on any material issue. In Sarwan (LIR No.376/18) (Sh. Dev Kumar Pandey Vs. M/s Bharat Arkimetal) Page No.9 of pages 11 Singh v. State of Punjab AIR 2003 SC 3652 Hon'ble supreme court reiterated this proposition in following words-
"...It is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross examination, it must follow that the evidence tendered on that issue ought to be accepted. It goes without saying that a skillful cross-
examiner must hear the statements in chief examination with attention, and when his turn comes, he should interrogate the witness on all material points that go against him. If omits or ignores then they must be taken as an acceptance of the truth of that part of witness's evidence."
13.6 In the instant case, since the workman has failed to put any suggestion to the management witness during his cross examination that no efforts were made by the management to call him back on duty, the workman is deemed to have accepted the deposition of the management witness on this aspect.
13.7 Not only that, the workman has himself also not clarified if he ever attempted to rejoin his services after 09.04.2017. Since the workman has admitted that he had started abstaining from work w.e.f. 09.04.2017 without prior approval or sanction of leave, it was for him to show if he ever attempted to rejoin his services with the management subsequently. However, the workman has remained completely silent in this regard. therefore, it can be inferred that after he absented from his duties w.e.f. 09.04.2017, he never attempted to rejoin his duty with the (LIR No.376/18) (Sh. Dev Kumar Pandey Vs. M/s Bharat Arkimetal) Page No.10 of pages 11 management and as such had no intention to rejoin his duty with the management. This inference is further strengthened by the fact that he admittedly did not approach to the management for reinstatement after the management in its written statement offered him to resume his duty. Thus, it can be concluded that the workman had abandoned his services with the management w.e.f. 09.04.2017.
13.8 Consequently, the workman has failed to establish his plea of illegal termination of his services by the management whereas the management has substatially proved that the workman had himself abandoned his services with the management w.e.f. 09.04.2017. The issue is accordingly decided in favour of the management and against the workman.
14. -:RELIEF:-
In view of my findings on issue no.1, workman is not entitled to any relief. The award is passed accordingly and reference is answered accordingly. Requisite number of copies of this award be sent to the competent authority for necessary compliance. File be consigned to the Record Room. (Announced in the open Court on 24.05.2023) (MANSIHA TRIPATHY) Presiding Officer Labour Court-III Rouse Avenue Courts, New Delhi (LIR No.376/18) (Sh. Dev Kumar Pandey Vs. M/s Bharat Arkimetal) Page No.11 of pages 11