Delhi District Court
Between The vs The on 28 May, 2013
1/15
IN THE COURT OF SH.S.S.MALHOTRA, PRESIDING OFFICER,
LABOUR COURT NO. IX, KARKARDOOMA COURTS, DELHI
ID NO. 451/09
Unique Case I.D. No. 02402C0232002009
BETWEEN THE WORKMAN
Lallan Prasad Mishra @ Jang Bhadur Mishra, C1/188, Gali no.6, 3 rd Pushta,
Sonia Vihar, Delhi94
AND THE MANAGEMENT OF
1 M/s Jay Kay Die & Chemicals, 2136, Tilak Bazar, Khari Baoli,
Delhi6, Through its Proprietor Sh.Durga Prakash Arora
2 M/s India Dye Chem, D9, Durga House, Rana Pratap Bagh, G.T.Road,
Delhi7, Through its proprietor Sh.Bharat Arora
Date of Institution : 12.08.2009
Date on which award reserved : 08.05.2013
Date of passing of award : 28.05.2013
AWARD
1 Vide this award, I shall dispose off the claim of the workman as filed
by him directly u/s 104(A) of the Industrial Disputes Act against the
management by stating that his services have been terminated illegally by the
management on 2.7.09 and he has prayed that management be directed to
reinstate him with full back wages alongwith other consequential benefits.
2 Brief facts as stated by the workman in his statement of claim are that
he joined the managements on 1.8.92 at the monthly salary of Rs.1150/ as a
'Helper' and the management had issued him the appointment letter and his
last drawn salary was Rs.4,500/. It is further submitted that apart from salary
Lallan Prasad Mishra vs M/s Jay Kay Dye & Chemicals
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the management was not giving him other benefits like ESI, leave
encashment, bonus, gratuity, PF etc. whereas he was doing every thing for the
management i.e. from the cleaning of the floor upto the working as a cash
collection man and he even was doing the household work like purchasing
milk, groceries etc.for the household of the management. It is further
submitted that the management no.1 & management no.2 are the business
enterprises and Sh.Durga Prasad Arora and Sh. Bharat Arora are the real
fatherson and they have functional integrality and all the benefits of the firm
are being run jointly and collectively. Workman worked with the
management no.1 upto 1997 and thereafter, the management transferred his
services to the management no.2 without any request, consent or approval
from the workman and both the managements used to take work from the
workman in both the said firms as per their requirement and they are different
managements only on papers but in real terms of the work and functions and
transfer of profits, both are same and there is no difference between them as
far as the service of the workman is concerned and no transfer letter or fresh
recruitment was given to the workman in this regard. It is further submitted
that the managements were adopting every antilabour practice to bar the
rights of the workman and have terminated the services of the workman
without following any legal procedure. Initially, also the workman was
threatened that his services would be terminated and thereafter he started
demanding his rights as a workman from the management which incurred
displeasure of the management and the management started harassing the
Lallan Prasad Mishra vs M/s Jay Kay Dye & Chemicals
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workman and when the workman reached the management on 2.7.09, the
management called him in the office and abused him and told him to leave
the place immediately otherwise he would be made handicapped and he even
might be killed and his services were terminated even without paying earned
wages w.e.f 1.6.09 to 2.7.09. It is further stated that he sent the demand notice
dt.6.7.09 to the managements but the same was not replied by the
managements. The workman thereafter filed a complaint before the Labour
Inspector. The managements did not appear there and the matter could not be
resolved. The workman also found that the behaviour of the Labour Inspector
was partial towards the managements and the Labour Inspector even did not
give his report and failure report to him as the case may be. It is further
submitted that the management has not paid the earned wages w.e.f 1.6.09 to
2.7.09, his overtime charges, gratuity and other legally permissible dues and
as such he has filed the present claim with the prayer that since services of
the workman have been terminated illegally by the management, the
management be directed to reinstate him with full back wages and other
consequential reliefs.
3 Both the managements have filed their separate written statement.
Management no.1 has submitted that the claim of the workman is devoid of
merits and the workman was the employee of the answering respondent in the
past and in the year 1997, he left the services of the answering respondent voluntarily without any prior notice after settling his account . Otherwise also the respondent no.1 & 2 are the the separate legal entities and have different Lallan Prasad Mishra vs M/s Jay Kay Dye & Chemicals 4/15 proprietor. Since the workman himself admitted that he was working with the management no.2 since 1997 till 2.7.09, the claim against the management no.1 is liable to be be dismissed and may kindly be dismissed. It is further submitted that the documents filed by the workman himself show that the management no.1 & 2 are not connected with each other and it is also submitted that the firms of management no.1 & 2 are not HUF firms and the management no.2 where the workman was allegedly employed is a separate, different and self established firm and it has no concern with the management no.1. As far as merits are concerned, it is submitted that the statement of claim against the management no.1 is self explanatory as he worked with the management no.1 only upto 1997 and he was not terminated by the management no.1 and, therefore, the workman has nothing to do with the answering respondent and the alleged notice was not issued to the answering respondent. Allegations against the management no.1 with respect to using antilabour practice or terminating the services of the workman are denied word by word and it is prayed that the claim of the workman be dismissed.
4 Management no.2 had not filed any written statement initially despite service but it stopped coming to the court and was proceeded Ex.parte vide order dt.21.1.11 and the following issues were framed on the same date:
1 Whether the claimant had been working with the managements regularly w.e.f 1.8.92 at the post of 'helper' drawing wages @ Rs.4500/ per month?
2 Whether the claimant himself left the services of the management Lallan Prasad Mishra vs M/s Jay Kay Dye & Chemicals 5/15 no.1 at his own will and accord?
3 Whether the services of the workman have been terminated illegally and/or unjustifiably by the management concerned?
4 Relief 5 And after framing up of the issues, the matter was fixed for WE but the management no.2 has filed an application for setting aside ex.parte order dt.21.1.11 which was allowed vide order dt.8.4.2011 and accordingly, the management no.2 filed its Written Statement taking preliminary objections that the claim of the workman is not maintainable as the claimant has not approached the court with clean hands and has suppressed the material facts and has made misleading and contrary & false allegations against the answering management . It is further submitted that behaviour of the workman was highly irregular and negligent towards the management no.2 and most of the times he committed negligence in discharging his duties and he was even in habit of stealing for which he was warned several times. It is further submitted that the claimant before leaving the service voluntarily without any notice, was warned for not stealing the papers of the firm and was also told to discharge his duties in a legal way. However , without paying any heed to such requests of the management, he suddenly stopped coming to the duty and it was heard that he was engaged in his own business of dyes and chemicals. It is also submitted that the claimant was dealing with the people who were having business relations with the answering respondent and it seems that the claimant was not interested in the service of the management and was setting up his own business and this fact also gets Lallan Prasad Mishra vs M/s Jay Kay Dye & Chemicals 6/15 strength from the fact that he was in the habit of stealing firm's important informations which were helpful to him for going into his own business and to deal with the people of like trade. It is further submitted that the present claim has been filed with malafide intention to harass, blackmail and extort money from the answering respondent and only with this intention, he has made the management no.1 as a party who has nothing to do with the present matter. As far as merits are concerned, it is denied that the claimant joined the management no.2 on 1.8.92 rather it is stated that the answering respondent was not even in existence in 1992. It is submitted that the claimant has levelled false and frivolous allegations against the management no.2 and it is reiterated that he was not discharging his duties diligently and was in the habit of stealing the documents. It is also denied that the services of the workman were terminated by the answering respondent and it is further submitted that the answering respondent took care of all the legal necessities of the claimant and provided good treatment to him besides financial assistance during his service with the management no.2 but now the claimant has become greedy and has filed false and frivolous case against the management no.2. It is further submitted that despite commission of offence of theft of the documents from the firm, the management no.2 had shown its leniency towards the claimant and did not report the matter to the police.
Other contents of the preliminary objections are reiterated and it is submitted that there was no termination of the workman as alleged and it is further submitted that the claimant had admitted in his statement of claim that he was Lallan Prasad Mishra vs M/s Jay Kay Dye & Chemicals 7/15 working with the management no.1, but simultaneously it is submitted that there was no transfer of the workman from the management no.1 to management no.2 rather the workman had left the services of the management no.1 and joined the services of the management no.2 after settling his account with management no.1 and documents placed on record by the claimant are sufficient to show that the respondent no.l & 2 are separate business entities . It is further submitted that the claimant even failed to attend the duty for complete 8 hours and hence there was no question of overtime working by the claimant. It is further submitted that the claimant left the services of the management and stopped coming to the management and he otherwise was duty bound to give prior notice to the management before leaving the job and as such the claimant can not claim anything from the answering respondent. Contents of the alleged notice or filing conciliation proceedings are denied word by word and it is prayed that claim of the workman be dismissed against the answering respondent. 6 After filing of the Written Statement, no other issue was framed and the matter was fixed for workman's evidence on 8.6.11 for 17.8.2011. Workman did not appear on 17.8.11 and no evidence was led on 17.8.2011 and the matter was fixed for 17.9.11 but no evidence was led on 17.9.11 as ld.ARW was not present. Matter thereafter was adjourned for 19.10.11 on which date affidavit was not filed and the matter was adjourned for 31.10.11 on which date, the workman filed his evidence by way of affidavit and the matter was fixed for cross examination of the workman for 24.11.11. On Lallan Prasad Mishra vs M/s Jay Kay Dye & Chemicals 8/15 24.11.11, the workman was not present and the matter was fixed for personal appearance of the workman for 17.12.11 on which date, the workman was again not present and accordingly, the workman's evidence was closed. Ld.AR for both the managements have orally submitted that they do not want to lead evidence and as such the management's evidence was also closed and an award was passed vide order dt.17.12.11 itself. However, subsequently the workman filed an application for setting aside the order dt.17.12.11 and for restoration of the case and after hearing both the parties, the application was allowed vide order dt.19.3.12 with the direction that the workman would not be entitled to back wages upto the date he concludes his evidence. The matter was also sent to the Mediation Centre where the mediation could not be succeeded and ultimately, the workman concluded his evidence on 4.4.13. Thereafter, an opportunity was given to the management to lead its evidence but the management did not lead its evidence and accordingly, the management's evidence was closed on 11.4.13 and as such there is no management's evidence on court record.
7 I have heard the arguments and perused the record. My issuewise findings are as under: ISSUE NO.1 8 Onus to prove this issue was upon the workman and he had to prove that he had been working with the managements w.e.f 1.8.92 at the post of 'helper' and was drawing wages @ Rs.4500/p.m. Court is of the opinion that in view of the statement of claim and the separate written statement of both Lallan Prasad Mishra vs M/s Jay Kay Dye & Chemicals 9/15 the managements, this issue was not required to be framed as the workman himself has admitted that he was appointed on 1.8.92 with the management no.1 and subsequently he was transferred in 1997 to management no.2. Although the management no.1 denied this fact that he was transferred by the management no.1 to management no.2 in the year 1997 yet it had submitted that the workman left the services of the management no.1 in 1997 and had joined subsequently the management no.2 and since the management no.2 has also admitted that the workman had been working with it from 1997, court is of the opinion that in view of all these admitted facts, it stands proved that the workman was lastly working with the management no.2 at the post of 'helper'.
9 Now, coming to the second part of the issue as to what was the last drawn salary of the workman, it is admitted proposition from the pleadings that the workman was lastly working with the management no.2. Workman was claiming that he was drawing salary of Rs.4000/ p.m and the management has not denied this fact specifically in the entire written statement. Therefore, this part of the issue is decided by holding that the workman was drawing salary of Rs.4000/p.m. ISSUE NO.2 10 Onus to prove this issue was upon the management no.1 and it had to prove that the claimant had himself left the services of the management no.1 at his own will and accord. Management no.1 has not led any evidence and as such it has failed to prove that the workman has left the services of the Lallan Prasad Mishra vs M/s Jay Kay Dye & Chemicals 10/15 management no.1 in 1997. However, the workman has also not filed any evidence in support of his version that he was transferred from the management no.1 to management no.2 in 1997 or that there was any functional integrality between the management no.1 and the management no.
2. When WW1 was cross examined, he deposed that he can not say whether the management no.1 and 2 are proprietorship firms and he also admitted that Sh.Bharat Arora established his firm only in the year 1997 i.e.the management no.2. He further deposed that he does not have any document by which he can prove that he was transferred from the management no.1 to management no.2. He admitted as correct that he had no complaint with the management no.1 from 1992 to 1997 and his relations with the management no.1 during that period were cordial. He admitted as correct that he was never transferred from the management no.1 to management no.2 but he denied the suggestion that he left the services of the management no.2 as he wanted to start his own business. Therefore, from all these facts, it is clear that although the management no.1 has failed to prove that the workman has left the services of his own but simultaneously since the workman himself claims that he had been working with the management no.2 from 1997 itself, it appears that there is no grievance of the workman against the management no.1. Accordingly, the issue no.2 is decided by holding that the management no.1 has failed to prove that the workman has left the services of the management no.1 of his own but since the workman had no grievance against the management no.1, the issue otherwise is not much relevant with regard to the Lallan Prasad Mishra vs M/s Jay Kay Dye & Chemicals 11/15 termination of the services of the management.
ISSUE NO.3 11 Onus to prove this issue was upon the workman and he had to prove that the services of the workman have been terminated illegally and unjustifiably by the management. The workman claims in the statement of claim that when he visited the management on 2.7.09, he was not allowed to resume his duties rather he was called in the office, he was abused and threatened and his services were terminated illegally in violation of section 25 F of the I.D Act on 2.7.09. It is an admitted case that in 2009, the workman was working with the management no.2 and the management no.2 in his written statement has submitted that the workman was never terminated rather he left the services of the management no.2 of his own as he wanted to start his own business and in that process, he was stealing the information from the office of the management no.2. The fact remains that the workman remained with the management no.2 upto 2.7.09. Whether his services were terminated or whether he left the services of the management no. 2 of his own is a core issue and onus of the first part of the issue was upon the workman and he has deposed accordingly. In cross examination, various suggestions were given to him but despite lengthy cross examination, the management has not been able to confront even a single document to the workman with respect to his remaining absent , with respect to his being negligence in discharging the duties or with respect to his stealing the material from the office of the management no.2 . Even if the contention of the Ld.ARM is Lallan Prasad Mishra vs M/s Jay Kay Dye & Chemicals 12/15 appreciated to some extent that the workman has left the services of his own then it is an admitted case that the workman was permanent employee of the management since 1997 and the management no.2 was duty bound to issue some sort of notice to the workman thereby calling him back on duty and asking him as to why he was remaining absent or has left the services of the management no.2. It is nowhere pleaded by the management no.2 that the workman has received salary or has left the services. No resignation has been placed on record. Court is of the opinion that such worker who had been working since last 12 years would definitely be an asset of the management and if the management was having any sort of grievance from such a long serving worker, it should have called him and if relations would have been so severe then atleast some inquiry should have been initiated against his alleged misconduct. Except the bald allegations in the pleadings, neither oral nor any documentary evidence has been filed on record which may ever prove that the workman has left the job of his own on 2.7.09. No doubt the workman has not filed any police complaint with respect to the threats given to him on 2.7.09 but the court is of the opinion that if the workman had been working with the management no. 2 and if he claims that he had been threatened then the police complaint is not mandatory and what is mandatory aspect as per law is only to issue notice with respect to grievance of the workman and which notice have been given by the workman to the management and which have been proved vide Ex.WW 1/3. There is no cross examination on Ex.WW 1/3 by the management to the workman. Although, initially it was Lallan Prasad Mishra vs M/s Jay Kay Dye & Chemicals 13/15 objected to on mode of proof but since there is no cross examination, it stands proved. Even in the cross examination of WW1 he deposed that proprietor of the management no.1 was in the office on 2.7.09 but he denied the suggestion that he has left the management no.2 of his own. He further deposed that his earned wages from 1.6.09 to 2.7.09 was Rs.4800/(as stated). There is no further cross examination on this aspect to the extent that the workman visited the management or has received Rs.4500/ or there is no such amount was due. There is no such cross examination. It is also an admitted fact that before terminating the services of the workman, the management has not given any prior notice , notice pay nor provisions of section 25 F of the I.D Act have been complied with. The fact that the workman has completed 240 days in the preceding 12 months from the alleged date of his termination, has not been agitated upon. Therefore, the issue no.3 is decided in favour of the workman by holding that the services of the workman have been terminated illegally by the management no.2.
RELIEF 12 Keeping in view my issuewise findings, it is clear that the services of the workman have been terminated illegally by the management no.2. The date of termination is 2.7.09. The claim was filed directly by the workman. The management filed its written statement and thereafter, the workman had not led his evidence on two dates and ultimately, the workman did not appear and an award was passed against the workman after closing his evidence. Workman thereafter filed an application for setting aside order dt.17.12.11 by Lallan Prasad Mishra vs M/s Jay Kay Dye & Chemicals 14/15 which WE was closed and an award was passed , which application was allowed vide order dt.19.3.2012. In the said order, the court had ordered that the workman would not be entitled to back wages , if any upto the date he concludes his evidence. Workman concluded his evidence only on 4.4.13. No doubt the matter meanwhile was referred to the Mediation Centre where it was kept pending for sufficient long period. In these circumstances, the court is of the opinion that it would be in the interest of justice if a lump sum compensation is granted to the workman instead of granting relief from the date of termination. The last drawn salary of the workman was Rs.4000/p.m as it has been decided in issue no.2.
13 As far as, compensation is concerned, workman claims that his services have been terminated on 2.7.09 and he is unemployed since then. Workman is an able bodied persons and it cannot be presumed that he was sitting without work for all such period . No doubt there may be certain initial difficulties to have alternate job but it cannot be presumed that workman had been sitting idle without any work. As far as the amount of compensation is concerned, the court is of the opinion that in such cases the lump sum compensation would meet the ends of justice. The court also find support from the following judgments:
1 Rameshwar Dayal vs Presiding Officer Labour Court no.VI, Delhi & Anr.2007 (3) LLJ 729(DHC) wherein the Hon'ble Delhi High Court came to the conclusion that 'a lump sum amount of Rs.50,000/ as Lallan Prasad Mishra vs M/s Jay Kay Dye & Chemicals 15/15 compensation in lieu of reinstatement and back wages towards full and final settlement of all claims of the workman was an appropriate relief'.
2 In Kishan Lal and Ors Vs Govt.of NCT of Delhi & ors 2007 VI AD(Delhi) 13, the Hon'ble Delhi High Court held mainly to the effect that 'in lieu of grant of relief of reinstatement and full back wages, the management was directed to pay to each of the workmen a lump sum compensation of Rs.40,000/ towards full and final settlement of all claims of each of such workmen'
14 Keeping in view the totality of the facts and circumstances, the court is of the opinion that the interest of justice would meet if a lump sum compensation to the extent of Rs.72,000/ is awarded to the workman. Accordingly, the management is directed to pay the awarded amount from date of award within a period of one month, failing which this amount shall carry a simple interest @ 8% per annum till realization.
As far as claim of the workman against the management no.1 is concerned, the same is dismissed.
A copy of this award be sent to the Deputy 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.
ANNOUNCED IN OPEN (S.S.MALHOTRA)
COURT ON 28th MAY, 2013 PRESIDING OFFICER
LABOUR COURTIX/KKD COURTS:DELHI
Lallan Prasad Mishra vs M/s Jay Kay Dye & Chemicals
16/15
I.Dno.451/09
28.5.2013
Present: None.
Vide separate award, workman is awarded a lump sum
compensation to the extent of Rs.72,000/ is awarded to the workman. Accordingly, the management is directed to pay the awarded amount from date of award within a period of one month, failing which this amount shall carry a simple interest @ 8% per annum till realization. As far as claim of the workman against the management no.1 is concerned, the same is dismissed.
A copy of this award be sent to the Deputy 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.
(S.S.MALHOTRA) POLCIX/28.5.2013 Lallan Prasad Mishra vs M/s Jay Kay Dye & Chemicals