Delhi District Court
Secretary (Labour) Govt. Of The ... vs Unknown on 7 March, 2008
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IN THE COURT OF MS. NISHA SAXENA, PRESIDING OFFICER
FAST TRACK COURT XXI, KARKARDOOMA, SHAHDARA,
DELHI
ID No.315/06/96
S/Sh. Chhater Pal, Dal Chand, Heera Lal, Virender Kumar, Shyam Kumar,
Babu Bhai, Shakur and Jamuna Prasad
C/o West Delhi Engg. Workers Mazdoor Union,
O2, Mangolpuri,
Delhi83. .........Workmen
Versus
M/s. Khanna Bros.,
A43/2, Naraina Industrial Area,
PhaseI, New Delhi28 ......... Management
Date of Institution : 13.05.1996
Date of reserving for award : 05.03.2008
Date of award : 07.03.2008
Appearance: AR for workman Sh. O.P. Vaish
AR for management Sh. N. Sharma.
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AWARD
1.Secretary (Labour) Govt. of the National Capital Territory of Delhi vide No.F.24 (280)/96Lab. has referred the case under Industrial Disputes Act, 1947, between the management M/s Khanna Bros., A43/2, Naraina Industrial Area, PhaseI, New Delhi and its workmen S/Sh. Chhater Pal, Dal Chand, Heera Lal, Virender Kumar, Shyam Kumar, Babu Bhai, Shakur and Jamuna Prasad C/o west Delhi Engg. Workers Mazdoor Union,O2, Mangolpuri, Delhi83 for adjudication to the Labour Court in the following terms of reference :
"Whether the services of S/Sh. Chhater Pal, Dal Chand, Heera Lal, Virender Kumar, Shyam Kumar, Babu Bhai, Shakur and Jamuna Prasad have been terminated illegally and/or unjustifiably by the management, and if so, to what relief are they entitled and what directions are necessary in this respect?"
2. Briefly stated, the facts of the case are that workmen had been in the employment of the management as per the following details : 3
Sl.No. Name Designation Service Rate of pay
1 Chhater Pal Tailor Since 1.1.86 Rs.3,500 p.m.
2 Dal Chand do Since 7.2.85 do
3 Heera Lal do Since 1.1.90 do
4 Veerender Kumar do Since 1.1.90 do
5 Shyam Kumar do Since 1.1.90 do
6 Shakur do Since 5 years do
7 Jamuna Prasad do do do
8 Babu Bhai Cutter Master Since 1980 Rs.5,000/p.m.
It has been alleged that management was not providing legal facilities and when they demanded the same, management got annoyed with the workmen and with a view to victimise them terminated their services on 30.5.1995 in violation of Section 25 F of Industrial Disputes Act. They have sought reinstatement in service with full back wages and continuity of services with all other attendent benefits. The stand of the management is that 5 out of the 8 workmen viz Chhaterpal, Heera Lal, Virender Kumar, Shyam Kumar and Jamuna Prasad withdrew their claim before the Assistant Labour Commissioner while claimants Dal Chand, Babu Bhai and Shakur never worked with the management. It is also stated that the 5 claimant left their service much before the year 1995.
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3. To answer the present reference following issues need to be settled.
Issue No.1 Whether S/Shri Chattar Pal, Hira Lal, Virender Kumar, Shyam Kumar and Jamuna Parsad withdrew their claim before the Asstt. Labour Commissioner on 6.6.95 and there did not exist any dispute or any claim against the management? OPM. Issue No.2.
Whether the rest of the three workman were never employed by the management and there did not exist any relationship of employer and employee between the parties?
Issue No.3.
As per terms of reference.
4. On the basis of pleadings, parties were called upon to lead their respective evidence. In support of his case claimant Dal Chand examined himself as WW1 who proved his affidavit as Ex. WW1/A and documents 5 relied upon by him are Ex. WW1/1 to Ex. WW1/58. During the pendency of the case claimant Babu Bhai has expired and his testimony remained incomplete. Later, his wife Ms. Saidan Begum was examined. She was also named as WW5. However for the sake of clarity she shall be read as WW5A. She has relied upon documents Ex. WW5A/1 to Ex. WW5A/11. WW3 is Chhater Pal who proved his affidavit as Ex. WW3/A and documents relied upon by him are Ex. WW3/1 to Ex. WW3/29. WW4 is Jamuna Prasad who proved his affidavit as Ex. WW4/A and documents relied upon by him are Ex. WW4/1 to Ex.WW4/7. WW5 is Heera Lal who proved his affidavit as Ex. WW5/A and documents relied upon by him are Ex. WW5/1 and Ex. WW5/2. WW6 is Virender Kumar who proved his affidavit as Ex. WW6/A and documents relied upon by him are Ex. WW6/1 and Ex. WW6/2. WW7 is Mohd. Shakur who proved his affidavit Ex. WW7/A and documents relied upon by him are Ex. WW7/1 and Ex. WW7/2. Claimant Shyam Kumar did not appear for cross examination and therefore his incomplete evidence shall not be read. On behalf of 6 management Sh. Arun Kumar Chaudhary has been examined who proved his affidavit Ex. MW1/A and document relied upon by him is Ex. MW1/1.
5. I have heard AR for workman Sh. O.P. Vaish and AR for management Sh. N. Sharma and gone through the entire record.
6. My findings on the issue are as hereunder :
Issue No.1 Whether S/Shri Chhater Pal, Hira Lal, Virender Kumar, Shyam Kumar and Jamuna Prasad withdrew their claim before the Assistant Labour Commissioner on 6.6.95 and there did not exist any dispute or any claim against the management ?
The onus is on the management to show that the claimants Chhater Pal, Hira Lal, Virender Kumar, Shyam Kumar and Jamuna Prasad withdrew their claim before the Assistant Labour Commissioner on 6.6.95 and there did not exist any dispute or any claim against the management. Though management witness MW1 Sh. Arun Kumar Chaudhary has stated in his affidavit that 5 out of 8 workmen withdrew their false claim before the 7 Assistant Labour Commissioner. It is stated by him that claimants Chhater Pal, Hira Lal, Virender Kumar, Shyam Kumar and Jamuna Prasad left the employment of the management much before the year 1995 and in fact had withdrew the complaint filed against the management before the Assistant Labour Commissioner vide their own letter dt. 6.6.1995. The management has not produced the letter dt. 6.6.1995 on the basis of which management is claiming that workmen withdrew their claim. No witness from the office of Assistant Labour Commissioner alongwith relevant documents was got examined by the management to prove the averments that 5 claimants had already withdrew their claim before the Assistant Labour Commissioner. In the absence of any evidence brought on record by the management on the point I hold that management has miserably failed to prove that claimants Chhater Pal, Hira Lal, Virender Kumar, Shyam Kumar and Jamuna Prasad withdrew their claim before the Assistant Labour Commissioner on 6.6.1995 and there did not exist any dispute or any claim against the management. Issue No.1 is accordingly decided in favour of the workmen 8 and against the management.
7. Issue No.2.
Whether the rest of the three workmen were never employed by the management and there did not exist any relationship of employer and employee between the parties?
The onus is on the workman to prove that they were in the employment of the management and relationship of employer and employee existed between the workers namely Dal Chand, Babu Bhai and Shakur. Management has disputed the relationship of employer and employee only in respect of these three workmen. Dal Chand WW1 has stated in his affidavit that he had been in the employment of the management since 7.2.1985 and when he demanded legal facilities, management with a view to victimise him terminated his service w.e.f. 30.5.1995. In support of his averments he has relied upon Ex.WW1/1 to Ex. WW1/58. The majority of the documents relied upon by him are documents letters received by him at the address of the management. Though no doubt that such letters are not 9 the conclusive proof of the employment of the claimant with the management but he has also placed on record weekly chart bearing the name of the management and having signatures of authorised person of management. There is not even a single suggestion in the cross examination of WW1 Dal Chand that these documents are manipulated or same are not signed by the person authorised by the management. In his cross examination WW1 Dal Chand has stated that no letter of appointment was given to him and he has no document to show that he was being paid salary of Rs.3500/ p.m. No termination letter was given to him at the time of his termination which substantiates his claim that management was not complying with statutory requirements. Similarly, though in his affidavit workman has categorically stated that he had been in employment of management since long. There is no suggestion in his cross examination that he was not in the employment of management or he had filed a false case against the management.
8. Another claimant in respect of whom management had denied 10 relationship is Babu Bhai whose legal representative Ms. Saidan Began WW5A has stated that her husband was in the employment of the management since 1980. When he demanded legal facilities from the management, management with a view to victimise him terminated his service w.e.f. 305.1995. In her cross examination she has stated that workman Babu Bhai was working with the management since 1980 and after termination from service he did not work any where. Though in her cross examination she has stated that she is not aware of the contents of her affidavit. However management has not put any suggestion to the legal representative of deceased workman that workman Babu Bhai was not employed with the management. She has relied upon documents Ex. WW5/1 to Ex. WW5/11. Ex. WW5/1 to Ex. WW5/3 are weekly chart containing name of claimant Babu Bhai as stitching incharge and it also bears the signature of the authorised signatory of the management but there is no suggestion in the cross examination of this witness that these documents are procured and manipulated. WW5/4 to WW5/11 are various 11 letters received by the claimant Babu Bhai at the address of the management.
9. WW7 Shakur has also stated that he had been in the employment with the management since long. He demanded legal facilities and management with a view to victimise him terminated his services on 30.5.1995. He has also relied upon envelops Ex. WW7/1 and Ex. WW7/2 which were received by him at the address of the management i.e. Naraina Industrial Area, A43/2, phaseI, Khanna factory. Management has not given any suggestion in the cross examination of the witness to challenge the veracity of the documents produced by the workman. Management has not been able to bring sufficient evidence to controvert the claim of the workman except bald statement of MW1 Sh. Arun Kumar Chaudhary controverting the claim of workman Babu Bhai, Dal Chand and Shakur by way of oral evidence. In view of the evidence on record I am satisfied that workmen Babu Bhai, Dal Chand and Shakur were employed with the management and relationship of employer and employee existed between the parties. 12 Issue No.2 is accordingly decided in favour of the workmen and against the management.
10. Issue No.3.
As per terms of reference.
The onus is on the claimants to show that their services were terminated illegally and unjustifiably by the management. One of the claimants Shyam Kumar did not pursue his case and did not tender himself for cross examination and therefore failed to prove his case while other claimants have brought evidence in support of their case. WW3 Chhater Pal has stated that he had been working with the management since 1.1.1986 and management was not providing legal facilities. When he demanded the same management terminated his service w.e.f. 30.5.1995. Though management has taken stand that the claimant withdrew his case before the Assistant Labour Commissioner and he had left the management before 1995. In the cross examination management has given suggestion to the workman Chhater Pal that he started absenting himself from services 13 illegally w.e.f. 30.5.1995. Though no such plea has been taken by the management in written statement. Workman has placed reliance on Ex. WW3/1 to Ex. WW3/29. In his cross he has admitted that there is no signature or seal of the management on Ex. WW3/1 to Ex. WW3/9 and Ex. WW3/11 to Ex. WW3/27. He has also admitted that there are no signature or seal of the management on Ex. WW3/10. However there is signature of supervisor at Pt.A on Ex. WW3/10. Similarly in respect of Ex. WW3/28, Ex. WW3/28A and Ex. WW3/29 he has stated that these documents bear the signature of the supervisor of the management at Pt.A on each. There is no suggestion that these documents are not signed by the management. Management is trying to take plea that it was the workman who left the service of his own and did not report for duty. Management has not been able to prove anything on record to suggest that management called the worker to join when he started absenting himself from duty. The workman had been working with the management since 1.1.1986 till 30.5.1995. It is difficult to comprehend as to why one fine day workman would started 14 absenting himself from work. The workman has categorically stated in his affidavit that it was management which terminated his services w.e.f.30.5.95.
11. WW4 Jamuna Prasad has also stated that he had been working with the management for the last five years and when he demanded legal facilities, management got annoyed and with a view to victimise him terminated his service on 30.5.1995. He has relied upon documents Ex. WW4/1 to Ex. WW4/7. Since management had not issued them any appointment letter or termination letter, they could not place any document on record to prove as to how management terminated their services. WW4 Jamuna Prasad, WW1 Dal Chand and claimant Babu Bhai, all have stated that management terminated their services. Management through its evidence has not been able to controvert their case. Management has remained silent in respect of all the documents proved on record by the workman vis Ex.WW1/1 to Ex. WW1/58, Ex. WW5A/1 to Ex. WW5A/11, Ex. WW4/1 to Ex. WW4/7.
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12. As regards other claimants namely Hira Lal WW5, Virender Kumar WW6, and Shakur WW7, they have also stated that they had been working with the management for a couple of years and when they demanded legal facilities, management got annoyed and terminated their service on 30.5.1995. In the cross examination of all these witnesses management has not controverted the documents relied upon by them. WW5 Hira Lal has relied upon documents Ex. WW5/1 and Ex. WW5/2 which are production card for the month of March 1995 and correspondence received at the address of the management. Similarly, WW6 Virender Kumar has placed on record Ex. WW6/1 and Ex. WW6/2 which are also correspondence received at the address of the management. Again claimant Shakur has also relied upon documents Ex. WW7/1 and Ex. WW72. Management has not challenged the authenticity of these documents in the cross examination of witnesses. Since claimants have worked for a couple of years and management has failed to prove its plea that it is the workmen themselves who left their service of their own. It is proved that management terminated 16 their services illegally and unjustifiably. Management witness Sh. Arun Kumar Chaudhary has stated that management was a partnership firm which had ceased to do any business since last several years. Initially the husband of one of the partners Mrs. Reeta Khanna was a partner. The husband of Mrs. Reeta Khanna suddenly died leaving behind her and her minor children. The other partner who happened to be the brother in law of Mrs. Reeta Khanna grabbed all the property of the management. Subsequently, the said partnership was dissolved and as per the dissolution deed all the existing liabilities went to the other partner. Therefore partner Mrs. Reeta Khanna has no liability if any. However in his cross examination he stated that partnership deed is not available. He did not know whether any complaint regarding grabbing of property was made. He stated that he has not brought the death certificate of husband of Mrs. Reeta Khanna and he did not know when he died. Therefore through testimony of management witness, management is trying to introduce a new story which is not a part of their written statement. Management has miserably failed to contest the 17 claim of the workmen that their services were terminated illegally. In view of the evidence brought on record I hold that services of claimants Chhater Pal, Dal Chand, Hira Lal, Virender Kumar, Babu Bhai, Shakur and Jamuna Prasad have been terminated illegally and unjustifiably by the management. 18
13. Now the questions arise as to what relief claimants are entitled to. Claimants have stated that they are unemployed since the date of termination of their job and they are doing their own work and is earning casually. Management has not been able to prove any gainful employment of the workmen. Claimants are out of employment since 30.5.1995 therefore in view of facts and circumstances of the case, I award compensation in lieu of reinstatement and back wages to all the workmen except claimant No.5 Shyam Kumar, of the amount to the tune of Rs.50,000/ each. Management shall make the payment of the compensation amount within two months from today failing which it shall be liable to pay interest @ 18 p.a. on the defaulted amount. As regards claimant Shyam Kumar, he has not been able to prove his case by way of evidence therefore his claim is rejected.
14. Reference is accordingly answered. Six copies of the award be sent to the Secretary (Labour). File be consigned to the record room. 19 ANNOUNCED IN THE OPEN COURT ON: 07.03.08 (NISHA SAXENA) POLCFTCXXI KARKARDOOMA COURTS, SHAHDARA, DELHI.