Delhi District Court
As Represented By vs . on 12 April, 2023
OLD CASE
IN THE COURT OF SH. AJAY GOEL:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I,
ROUSE AVENUE DISTRICT COURTS , NEW DELHI.
Ref. No.: F.24(1149)/2006/Lab./4623-27
Dated : 04.12.2007
ID NO. 996-2016
WORKMEN
AS REPRESENTED BY
Hotel Mazdoor Union (Regd.),
C-204, Staff Quarters, Ashok Hotel,
Chanakyapuri, New Delhi - 110021.
Vs.
The Management of
M/s YORK HOTEL
K-10,-11, Connaught Place,
New Delhi.
Date of Institution : 08.12.2007
Date of presentation : 25.03.2023
before this court
Date of Arguments : 12.04.2023
Date of Award : 12.04.2023
AWAR D
1.Labour Department, Govt. of the National Capital Territory of Delhi has referred this dispute arising between the parties named above for adjudication to this Tribunal vide Ref. No.:
F.24(1149)/2006/Lab./4623-27 Dated : 04.12.2007 with following terms of the reference:-
(i) "Whether the demand of the workmen for revision of existing pay scale is justified; and if so, what directions are necessary in this respect?"ID NO. 996-2016 Page No. 1 of 15
(ii) "Whether the demand of the workmen for enhancement of house rent allowance justified; and if so, what directions are necessary in this respect?"
(iii) "Whether the demand of the workmen for enhancement of food allowance is justified: and if so, what directions are necessary in this respect?"
(iv) "Whether the demand of the workmen for payment of city compensatory allowance is justified; and if so, at what rate and what directions are necessary in this respect?"
(v) "Whether the demand of the workmen for children education allowance is justified; and if so, at what rate and what directions are necessary in this respect?"
(vi) "Whether the demand of the workmen for payment of conveyance allowance is justified; and if so, at what rate and what directions are necessary in this respect?"
(vii) "Whether the demand of the workmen for enhancement of cash handling allowance for those handling cash is justified; and if so, what directions respect?" are necessary in this
(viii)"Whether the demand of the workmen for enhancement of LTA is justified; and if so, what directions are necessary in this respect?"
(ix) "Whether the demand of the workmen for payment for night duty allowance to those performing night duty is justified, and if so, at what rate and what directions are necessary in this respect?"
(x) "Whether the demand of the workmen for merit increment for long service is justified; and if so, at what rate and in what manner and what directions are necessary in this respect?"
2. Statement of claim has been filed by the claimant/workman, wherein it is claimed:
That the Hotel Mazdoor Union is a Trade Union and has been looking after the interest of the workers of Hotels, Restaurants and Catering establishments in the Union Territory of Delhi region ID NO. 996-2016 Page No. 2 of 15 for the last 40 years and the workers of the York Hotel are members of Hotel Mazdoor Union for the last 40 years.
That the Hotel is running a good business and income through room rents, banquets, food beverage and other services. It is further averred that the management of Hotel and Hotel Mazdoor Union had been entering into bilateral long term wage settlement since 1974 and the workers of the management have been getting wages, benefits and other facilities in accordance to the settlements entered into between both the parties.
That after expiry of the settlement dated 07.08.1997, the union as per the prevailing practice served a fresh chartered of demands dated 15.04.2000 upon the management with the request to negotiate and settle the same within 15 days of the receipt of the same.
That after about more than five years, the workers served a strike notice through union upon the management and a copy thereof was also sent to the Assistant Labour Commissioner and on receipt of the same, the Assistant Labour Commissioner called the parties for conciliation. LD. NO. 106/07. The conciliation proceedings also failed to yield any positive result.
That the workers are entitled for the revision in the pay scale. D.A, HRA, food allowance, enhancement of leave, night duty allowance, conveyance allowance etc. and an award to this effect may be passed in favour of the workers and against the management.
3. Written statement filed by the management, wherein following objections have been taken:-
That the reference has been made in mechanical manner ID NO. 996-2016 Page No. 3 of 15 without application of mind and same is not based on law and facts related to the matter.
That the present purported matter has not been espoused in legal and proper manner. No notice was served nor any agenda was circulated nor any meeting was held in this regard. It is further averred that neither any notice of termination of earlier settlement was given.
That the signatory to the statement of claim has no locus standi to sign the statement of claim and the purported union has no legal existence nor the majority of workers of the hotels are members of purported union. So on this ground no proceedings can be held in this matter. Hence, the demand of the claimant/workmen is without any basis and contrary to the Rules and Regulations.
Rest of the contentions of the statement of claim are denied.
4. The workmen filed rejoinder to the written statement denying the averments made in the written statement filed by management. On the pleadings, following issues were settled on 30.04.2008
1. Whether there is proper and valid espousal of cause of the workmen?
2. As per terms of reference.
Thereafter the case was listed for workmen evidence by way of affidavit. Perusal of file reveals that on 02.07.2008 neither the workmen nor their Authorised Representative appeared before the court and hence on the same day, workmen evidence was closed and Authorised Representative of the management stated that ID NO. 996-2016 Page No. 4 of 15 management also does not want to lead any evidence, as workmen have failed to adduced any evidence on their behalf. Hence, straightway arguments heard and matter was posted for award.
5. On 04.07.2008, my ld. Predecessor passed no dispute award and held that the claimant/workmen are not entitled to any relief. However, on 06.05.2008, Ld. AR for the workman moved an application for setting aside the ex-parte order, notice of which application was issued to management and later on vide order dated 25.03.2009, passed by my ld. Predecessor, the No Dispute Award dated 04.07.2008 was set aside and matter was posted for workmen evidence.
To prove their case, workmen examined Sh. M.N. Gope as WW1, who tendered his evidence by way of affidavit Ex. WW1/A and relied upon certain documents which are Ex. WW1/1 to Ex. WW1/7. Similarly, WW2 Sh. Sukhpal also tendered his evidence by way of affidavit, which is Ex.WW2/A and relied upon documents Ex.WW1/1 to Ex. WW1/7; WW3 Sh. Khema Nand also tendered his evidence by way of affidavit, which is Ex.WW3/A and relied upon documents Ex.WW1/1 to Ex. WW1/7; WW4 Sh. Sunil Datta also tendered his evidence by way of affidavit, which is Ex.WW4/A and relied upon documents Ex.WW4/1 to Ex. WW4/3 (settlements); WW5 Sh. Himmat Changwal also tendered his evidence by way of affidavit, which is Ex.WW5/A and relied upon documents Ex.WW5/1 and Ex. WW5/2; WW6 Sh. Vinod also tendered his evidence by way of affidavit, which is Ex.WW6/A and relied upon document Mark A. All the aforementioned witnesses were cross-examined by ld. AR for the management. Thereafter, on 04.06.2014, vide separate statement, Ld. AR for the workmen ID NO. 996-2016 Page No. 5 of 15 closed workmen evidence.
6. Similarly, to prove its case, management examined Sh. Balbir Singh as MW1. He tendered his evidence by way of affidavit Ex.MW1/A in which he has affirmed the contents of the written statement. He has also relied upon certain documents which are Ex. M-1 to Ex. M-6. MW-1 was cross-examined by Ld. AR for the workmen and on 03.05.2017 vide separate statement of Ld. AR for the management, management evidence was closed.
7. Written submissions have been filed on behalf of the workmen as well as on behalf of Management. However, perusal of file reveals that during the course of final arguments ld. AR for the management submitted that matter has been amicably settled between the parties and sought some time to furnish closure and settlement documents. Perusal of ordersheet dated 05.03.2022 reveals that Ld. AR for the management furnished the documents of full and final settlement of workmen and also placed copies of the same on record, which were duly supplied to Sh. A.K. Ganguly, ld. AR for the workmen. Thereafter, final arguments were heard from Sh. Rajesh Narang, ld. AR for the managmeent. However, none appeared on behalf of workmen despite affording number of opportunities to them by mangement to take stand on the documents of settlement of workmen supplied/furnished to them as well as to adduce final arguments on behalf of workmen, but to no avail.
8. I have gone through the entire records of the case file including pleadings of the parties, evidence led and documents proved during the evidence.
9. My issue wise findings are:-
Issue no.1:ID NO. 996-2016 Page No. 6 of 15
"1. Whether there is proper and valid espousal of cause of the workmen?
2. As per terms of reference.
10. Workmen in order to prove first issue i.e. to establish that there is proper and valid espousal of cause of the workmen have relied upon the testimony of WW-1/Shri M.M. Gope, who happens to be the Vice-President of the Union i.e. Hotel Mazdoor Union (Regd.), who filed evidence by way of affidavit and also proved documents Ex. WW1/1 to Ex. WW1/7 and reaffirmed his claim. In his cross-examination conducted on 17.09.2009, it has come on record that the registration number of the Union was printed on the letterhead of the Union, which is affiliated to AITUC. It has also come in his evidence that there are 35 workers of Hotel York, who are members of the Union. WW-1 in his evidence has also admitted that lastly wage settlement was entered on 07.08.1997, which expired on 31.03.2000. He further admitted that notice of strike was given to the management regarding their charter of demands, but strike was not resorted to because of stay granted by the Hon'ble Delhi High Court. The witness identified his signature on Ex. WW-1/7 which is the espousal of workmen, whereby Union was authorised to take up their charter of demands with the management for amicable settlement.
11. Perusal of file further reveals that vide order dated 13.02.2014, passed by ld. Predecessor of the court, management was directed to produce Memo of Understanding which is Mark A in the affidavit of WW Sh. Vinod Kumar. However, vide written submissions filed on 04.06.2014, management expressed their inability to produce the same and it was directed that the effect of ID NO. 996-2016 Page No. 7 of 15 the same shall be considered at the time of Award.
12. It is apparent on the face of record that during the cross- examination of WW-1 no suggestion was given to WW-1 that no notice of strike was given to the management regarding charter of demands. No suggestion was given to WW-1 that Ex. WW-1/7 is a fake or forged document or has not been properly or validly espoused by the Union. Rather WW-1 in his cross-examination has specifically mentioned that the registration number of his union has been given on the letter pad on which the communication has been addressed to the management. No suggestion in this regard has been given to WW-1.
13. In view of depositions of WW-1/Shri M. M. Gope, who has proved Ex. WW-1/7, which is the espousal of workmen, whereby Union was authorised to take up their charter of demands with the management for amicable settlement as well as deposition of other workmen namely Sh. Sukhpal/WW-2, during his cross- examination conducted on 21.05.2009 reaffirmed that he became member of the Union when he joined the management; Sh. Khema Nand/WW-3 during his cross-examination conducted on 21.05.2009 reaffirmed that he is working as a pantry man since 1990 in the hotel and he became member of the Union in 1990. He further deposed that demand notice dated 15.04.2000 was served on the management on behalf of workers. A meeting of workers was also held before 15.04.2000 with the union before sending aforesaid demand notice; Sh. Vinod Kumar (WW-6), who was working as waiter/room attendant in York Hotel, since 1998. During his cross- examination conducted by Ld. AR for management on 04.06.2014, the witness confirmed that he had been working as room attendant ID NO. 996-2016 Page No. 8 of 15 since 1998 and further confirmed that the registration No. of the Union was 1150 and that Shri M M Gope signed the above document in the capacity of Vice-President; Sh. Suresh/WW-7, an employee of York Hotel, since 1998 has also sufficiently proved that the claim of the workmen have been properly and validly espoused by the Union i.e. Hotel Mazdoor Union (Regd.). Accordingly, issue no. 1 is decided against the management and in favour of the workmen.
Issue No. 2As per terms of reference.
14. It is the case of the management that it received a charter of demand dated 15.04.2000 on expiry of agreement dated 07.08.2000. It is further contended that two cases were referred to, which were invariably based on same charter of demand, one against Hotel York being ID no. 106/2007 i.e. present case and another against York Restaurant being ID no. 21/2007. Since both the matters are offshoot of two sister concerns, which admittedly got merged in York Hotel in the year 2003, hence both the matters are liable to be treated as one and this court has already passed award in favour of management in the mater of ID no. 21/2007 which is also binding on the present workmen too, being barred by resjudicata.
15. Perusal of file reveals that vide order dated 29.08.2013, ld. Predecessor has already given his decision/finding in respect of taking up of present case with another case bearing ID no. 21/07. In this regard the order dated 29.08.2013 reads as under:-
"As regards prayer of management that present case be taken up with another case bearing I.D. No. 21/07, it is worth noting that the said case bearing ID NO. 996-2016 Page No. 9 of 15 I.D. No. 21/07 has been decided already and award has been passed therein on 24.7.13. Hence, this prayer of the management is misplaced."
16. Thus, the aforesaid arguments of ld. AR for the management that both the matters are liable to be treated as one and the award passed by this court in ID no. 21/2007 is also binding on the present workmen too, being barred by resjudicata, is misconceived and misplaced, as my ld. Predecessor has already specifically dealt with this part of argument of ld. AR for the management vide aforesaid order dated 29.08.2013.
17. So far as the case as put forth by the ld. AR for the workman is concerned, same has to be dealt with keeping in view the cogent evidence led by the ld. AR for the management. To establish their case against the workmen, management has relied upon the evidence led by Sh. Balbir Singh/MW-1, who happened to be the Partner of the Hotel. He filed his evidence by way of affidavit dated 13.11.2014 on behalf of management and relied upon documents Ex. M-1 to Ex M-6. MW-1 in his affidavit and thereby challenged the veracity and locus-standi of the Union and requested to pass the same award in favour of management, as has been done in a separate industrial dispute ID No 21/2007 between the workmen of York Restaurant and the management. He further submitted that the same is applicable to all its workmen in present matter too. He further reiterated that separate adjudication of this matter would mean double prosecution and thus, management be given relief on the principles of res-judicata and double jeopardy. He further submitted that vide letter dated 01.09.2003, Hotel Mazdoor Union was already informed about the fact that both York ID NO. 996-2016 Page No. 10 of 15 Hotel and Restaurant were being run by M/s. York Hotel. It was further contended that the wages of concerned workmen were already above minimum wages and indeed the management was also bearing the food cost of approximately R. 400/-. He also filed copy of management's IT Returns, balance sheet etc., wherein management had accumulated losses in order to show declining Hotel Occupancy and Restaurant Sales.
18. It is further argued on behalf of management that management had already paid very high salaries, in addition to the basic wage and allowances with variable dearness allowance (VDA) linked with Consumer Price Index No. Under the VDA Scheme, the emoluments of the workmen, never remained static and, thus, there is no justification in the demands raised by them. He further argued that as a result of consistent increase in VDA, year after year, the financial burden on the establishment increased substantially, which the Management afforded despite deteriorating financial capacity of the Management. The VDA caused considerable financial drain to the financial resources of the company and ultimately on account of deteriorating financial condition, the company had to be shut down/closed down. Apart from the emoluments, which were on a very high side, the workmen were being provided various other allowances besides meals. The emoluments being paid to the workmen were on much higher side than their counterparts employed in comparable hotels in the vicinity. Therefore, there is no justification or basis in raising the purported Charter of Demands.
On the other hand, to prove their case, workmen examined Sh. M.N. Gope, Vice President of Hotel Mazdoor Union ID NO. 996-2016 Page No. 11 of 15 as WW1, Sh. Sukhpal, workman as WW-2; Sh. Khema Nand, another workman as WW-3; Sh. Sunil Datta Vashista, General Manager, Hotel Vikram, Lajpat Nagar, Delhi as WW4; Sh. Himmat Changwal, Guest Relation Officer, of Hotel Samrat, who also happened to be the Joint Secretary of All India ITDC Employees Union (Regd.); Sh. Vinod, another workman in the present matter as WW6. WW-1 in his cross-examination has admitted that almost all the workers are covered under ESIC in this case or that ESIC department provided free of cost treatment to the workmen. WW-2 in his cross-examination has also admitted that he was getting increment every year or that he got DA or that after termination of settlement dated 07.08.97, the management continued giving them increase in wages and DA. He further admitted that their hotel is a 3 star. In his cross-examination he has also admitted that employees of Hotel Marina and Narula were given more salary than their hotel as Hotel Marina is 4 star and Narula is 3 star. WW-3 in his cross- examination further admitted that they used to get subsidized food (Dal and Roti) and tea and slice in the break fast and in addition they also used to get Rs. 60/- as food allowance or that he was getting salary under the head Basic, DA, HRA, conveyance and Food. So the workman has not been able to make out their case.
19. Apart from this, Ld. Counsel for the management has drawn my attention to the fact and vehemently argued that during the course of the proceedings in the present matter, an out of court settlement was arrived at between the workmen and the management, whereby all the workmen have amicably settled their claim with the management and management has already paid them their full and final dues as existed against the management and now ID NO. 996-2016 Page No. 12 of 15 nothing remains due. Ld. AR for the management had also filed/placed on record these alleged copies of settlement arrived at between the workmen and the management. Perusal of file/ordersheets reveals that ld. AR fr the management had filed he copies of settlement arrived at between the parties. Apparently, these alleged copies of settlement arrived at between both the parties, are placed on record. Perusal of ordersheet further reveals that copies of same were supplied to ld. AR for the workman. However, the factum of settlement between the parties and the settlement documents filed by the ld. AR for the management on the record of the case file remained unrebutted. So these cannot be challenged now and workman has accepted the settlement.
It is matter of record that neither any stand in respect of settlement being forged and fabricated was taken nor the veracity of the factum of settlement nor veracity of these settlement documents was challenged. Rather after getting the copies of the alleged settlement arrived at between the workmen and the management, ld. AR for the workmen as well as workmen both preferred not to appear before the court. They did not take any concrete stand on these copies of alleged settlement arrived at between them and management, nor did they come forward to rebut them. Even they did not preferred to adduce/tender any final arguments on behalf of the workmen in the matter, that too despite affording number of opportunities to them.
20. Since the alleged copies of settlement filed by ld. AR for the management are on court record and the fact that the copies of the same were supplied to ld. AR for the workmen as well as the fact of refraining of ld. AR for the workmen and workmen to appear ID NO. 996-2016 Page No. 13 of 15 before the court, despite affording them number of opportunities to clarify the factum of full and final settlement, undoubtedly leads this court to raise a strong presumption that probably the matter has been amicably settled by the workmen with the management during the course of present proceedings, out of the court and all the workmen have undoubtedly received their full and final dues from the management. Thus, none of them (neither ld. AR for the workmen nor any of the workmen) cared or could muster courage to appear before this court in person or otherwise for taking any concrete stand on these alleged copies of settlement filed by ld. AR for the management and chose even not to argue the matter on merits. After going through the evidence produced on record by the workmen, it is apparent that workmen have utterly failed to establish that the alleged loss as claimed by the workmen, who are affected is not made out from the pleadings. None of the workmen has given any cogent basis or justification for the claims/demands raised by them in their statement of claim nor is it evident from the evidence led on behalf of workmen to entitle them to claim the demands as raised in their statement of claim or charter of demand. Not a single piece of evidence has been brought on record by the workmen to show/exhibit that the management is running into profits or to suggest that there business is flourishing with leaps and bounds. From the above narrated discussions, it is apparent that workmen have utterly failed to prove/substantiate their claim/averments as made in the statement of claim with the evidence led by them.
21. In the background of the above-narrated facts and circumstances coupled with the documents placed on the records, ID NO. 996-2016 Page No. 14 of 15 this tribunal is of the considered opinion that workmen have failed to attribute their entitlement for the alleged demands as raised in their statement of claim. Accordingly, issue no. 2 is decided in favour of the management and against the workmen and thus, workmen are not entitled to any relief, as claimed by them.
22. Relief:- In view of the findings of the court on aforesaid issues, it is held that the workmen are not entitled to reliefs as claimed against the management and claim of workmen stands rejected and award to that effect is hereby passed. Reference stands answered and disposed off accordingly. Claim is rejected.
23. A copy of this award be sent to the Dy. Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
File be consigned to record room.
Announced in the open Tribunal on this 12.04.2023 (Ajay Goel) POIT-I/RADC, New Delhi/12.04.2023 ID NO. 996-2016 Page No. 15 of 15