Delhi District Court
In 1996 Llr 802, The Case Titled Wings ... vs . Workman As on 10 March, 2008
1 IN THE COURT OF SHRI SANJAY GARG : PRESIDING OFFICER : LABOUR COURT NO. V : KARKARDOOMA COURTS : DELHI.
ID No. 307/99 BETWEEN The Management of M/s. Sun Shine Plastic, W.Z-30-A, Chhana Mal Park, New Delhi-26.
AND The Workman C/o. All India Engineering and General Mazdoor Union, E-127, Karampura, New Delhi-15.
DATE OF INSTITUTION : 5.7.99 DATE OF ARGUMENTS : 7.3.08 DATE OF AWARD : 10.3.08 AWARD
The Secretary (Labour) Govt. of N.C.T. of Delhi has referred the Industrial Dispute for adjudication to this Court vide Order No. F.24(1232)/99- Lab.20554-58 dated 17.5.99 in the following terms of reference :
'Whether the services of S/Sh. Suresh Kumar, Hemraj, Ram Surat and Raj Kishore 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. The facts as enumerated by the workman in their statement of claim are that they were working on different designations with the management. The designation on which workmen were working, duration of the service and last drawn salary is mentioned below :-
Name Designation Duration Salary Drawn
Suresh Kumar Foreman 8 years Rs.3,700/-
Hemraj Mistri 11 years Rs.1,700/-
Ram Surat Karigar 4 years Rs.1,600/-
Raj Kishore Karigar 8 years Rs.1,600/-
2
3. It is stated that management was not providing legal benefits like leave book, attendance card, minimum wages, bonus etc. to them. They demanded for implementation of the legal benefits, on this management got annoyed and terminated their service on 25.8.98 without any notice. Even the earned wages for the month of August'1998 were not paid. They made a complaint to the Labour Office. The Labour Inspector visited the management and requested the management to reinstate them but the management did not agree. They served a registered legal demand notice on 6.10.98. But neither the management took them back nor replied it. It is stated that management has violated section 25-F of the I.D. Act. The workmen has sought relief of reinstatement with full back wages, continuity of service and terminal benefits alongwith their earned wages.
4. The management contested the claim and filed written statement submitting that services of the workmen were never terminated. The workman abandoned their job themselves after receiving full and final settlement because the management had informed all the workmen and had given prior notice to them that due to losses the firm is going to close. The same intimation was dispatched to the office of the Commissioner of Labour, Rajpur Road vide letter dated 11.9.98. It is stated that demand notice dated 6.10.98 was ever sent by the workmen. It is denied that management had violated section 25-F of the I.D. Act.
5. The workmen filed rejoinder reiterating their contentions of statement of claim and refuting the submissions made by management in its written statement.
6. Vide order dated 29.8.05, the following issues for trial were framed :-
(1) Whether the management stood closed w.e.f. 25.8.98? (2) Whether the full and final settlement was made to the workmen as claimed by the management? (OPM) 3 (3) Relief in terms of reference.
7. Three workmen examined themselves in support of their claim.
WW1 Sh. Suresh Kumar tendered his examination-in-chief by way of affidavit Ex.WW1/A and relied upon documents Ex.WW1/1 to WW1/8. WW2 Sh. Hem Raj tendered his examination-in-chief by way of affidavit Ex.WW2/A and relied upon the documents Ex.WW1/1 to WW1/8. WW3 Sh. Raj Kishore Jha tendered his examination-in-chief by way of affidavit Ex.WW3/A and relied upon the documents Ex.WW1/1 to WW1/8. The management examined one witness MW1 Sh. Sunder Lal Kalra. He tendered his affidavit Ex.MW1/1 and relied upon the documents Ex.WW2/M-2 to WW2/M-4 and Ex.WW3/M-1 to WW3/M-3.
8. Heard arguments of Sh. Ajit Singh, Ld. AR for workman and Sh.
Keshav Rai, Ld. AR for the management. Perused the record.
9. On my due consideration of material on record; submissions made by AR for parties and relevant legal provisions and case law; my findings on issues are as follows:
ISSUE NO. 110. The burden to prove this issue lay upon the management. The plea of the management is that the services of the workmen were never terminated as alleged and in fact workmen left the service after receiving full and final settlement as the management closed its business activities due to losses.
11. Ex.WW3/M-1 is the documents relied upon by the management to establish its plea of closure. It is a letter written by management to Labour Commissioner informing him that due to losses the management has been closed from 25.8.98 onwards and prior intimation has been given to the workers. This letter stands received in the office of the Labour Commissioner 4 on 11.9.98. Out of the three workmen, two workmen WW2 Sh. Hem Raj and WW3 Sh. Raj Kishore Jha has admitted during their cross-examination that factory of the management was closed on 25.8.98. WW1 Sh. Suresh Kumar has stated in his cross-examination that it is not in his knowledge as to whether factory of the management was closed, if so, from which date.
12. The Ld. AR for workman has submitted that the management has failed to prove its closure as no sales tax record or record regarding dis- connection of electricity has been produced. In view of the admissions of the workmen during their cross-examination regarding closure of the factory of the management and Ex.WW3/M-1, this contention raised by Ld. AR for workman holds no ground.
13. In view of the aforesaid reasons, it stands established that management closed its business activities w.e.f. 25.8.98. This issue is accordingly decided in favour of the management and against the workmen.
ISSUE NO.2
14. The burden to prove this issue lay upon the management. The plea taken by management in its reply to the claim is that workmen abandoned their job themselves after receiving full and final settlement up to date because management informed to all the workmen and gave prior notice to them that due to losses the firm is going to close. Whereas workmen has disputed of having received any settlement amount. Since issued No.1 stands decided in favour of the management as it stands established that management stood closed w.e.f. 25.8.98, the management is only required to prove whether full and final settlement amount has been paid to workmen at the time of their closure.
15. To establish their plea of full and final settlement management has put mark M-1 to WW1 Sh. Suresh Kumar during his cross-examination. WW1 5 has refused to have signed mark M-1 at point A. Due to the reasons best known to the management, it failed to produce the original of mark M-1. Similarly Ex.WW2/M-2 to WW2/M-4 are the cash vouchers and receipt of the money. These documents were put to WW2 Sh. Hem Raj during his cross- examination. Though WW-2 has admitted his signatures on Ex.WW2/M-2 to WW2/M-4 but he has stated that his signatures were forcibly obtained by the management. Similarly, management had put Ex.WW3/M-2 and WW3/M-3 to WW-3 Raj Kishore during his cross-examination. Who again has admitted his signatures on these documents but has stated that his signatures were forcibly taken by the management on these documents.
16. Both WW2 and WW3 has specifically stated that the amount mentioned in these documents was never paid to them. As discussed in issue No.1, the management has closed down its business activities w.e.f. 25.8.98. As per section 25 FFF of I.D. Act, workmen were entitled to notice and compensation in accordance with the provisions of section 25-F of the I.D. Act as if the workmen had been retrenched. But it is not the plea of the management if any compensation was paid to the workmen u/s. 25-F of the I.D. Act. The only plea of the management is that settlement was arrived with the workers and accordingly full and final settlement amount was paid to them. In my opinion, this type of settlement is required to be in consonance with rule 58 of the Industrial Disputes (Central) Rules, 1957. Rule 58 provides that settlement should be in Form H and the parties to the settlement shall jointly send a copy thereof to the Central Government, the Chief Labour Commissioner (Central), New Delhi and the Regional Labour Commissioner (Central) and the Asstt. Labour Commissioner (Central) concerned. The law is settled that this rule must be fully complied with if the settlement is to have binding effect on all the workmen. The reliance in this context is placed upon in 1996 LLR 802, the case titled Wings Wear (P) Ltd. V/s. Workman as represented by Wings Wear Workers Lal Jhanda Union 1970 SCR (2) 886, the case titled The workmen of M/s. Delhi Clothe & General Mills V/s. Management of M/s. Delhi Clothe & General Mills Ltd.
617. Though this is not the contention raised by workmen that compliance of rule 58 (4) has not been done by the management but the Court can take judicial notice of the fact that the mandatory requirement of rule 58 of Industrial Disputes Central Rules had not been complied with and that non- compliance affect the validity of the settlement.
18. In view of the aforesaid reasons the plea of settlement taken by management cannot be accepted. Moreover, regarding WW1 management has failed to produce any original receipt of payment or settlement recorded. Regarding WW2 and WW3, they admitted their signatures on Ex.WW2/M-2 to M-4 and WW3/M-2 to M-3 but since they have taken the plea that no amount mentioned on these documents was ever received by them and his signatures were taken forcibly, the management was supposed to establish the payment of the amount mentioned in the vouchers by producing other documents. If certain payment was made to the workmen, entry in this regard must have been made by the management in its accounts and other places. Since no such record was produced by the management it further falsify its plea of full and final settlement with these workmen.
19. In view of the various reasons discussed above, this issue is decided against the management and in favour of the workmen.
ISSUE NO.3
20. Workmen has claimed the relief of reinstatement with full back wages, continuity of service and terminal benefits. But since it stands established that management had closed its business operations from 25.8.98, the relief of reinstatement with continuity of service cannot be given. The only relief which workmen deserves in this case, in my opinion is the benefit which they are entitled as provided u/s. 25-FFF of the I.D. Act. For calculating the retrenchment compensation as per section 25-F as provided in section 25-FFF, the length of service rendered by workmen is required to be 7 taken into consideration.
21. In para 2 of their statement of claim workmen has mentioned the duration of length of service rendered by them. In its written statement management has denied the duration of service rendered by workmen. The entire written statement of the management is silent that since when these workmen were employed with it. As per the law of pleadings whatever is not denied specifically amounts to have been admitted. Thereby the length of service of WW1 Sh. Suresh Kumar, WW2 Sh. Hem Raj and WW3 Sh. Raj Kishore Jha mentioned as 8 years, 11 years and 8 years respectively in their statement of claim stands admitted by the management.
22. The management is directed to pay retrenchment compensation calculated u/s. 25-F of the I.D. Act to the workmen on the last drawn salary of Rs.3700/-, Rs.1700/- and Rs.1600/- respectively. The management is further directed to pay interest @ 8% on the total compensation amount from 25.8.98, the date of closure of its business operations till date. The management will comply with this order within one month of publication of this award. An award is passed accordingly. Reference is also answered accordingly.
A copy of this award be sent to the appropriate government for its publication.
File be consigned to record room.
Dated : 10.3.2008 ( SANJAY GARG )
PRESIDING OFFICER :
LABOUR COURT-V:
DELHI.