Delhi District Court
Bhagwan Who Is Assistant ... vs Government Of Nct Of Delhi on 17 February, 2007
1 ID No. 303/2001
ID No. 42/2003
ID No. 43/2003
IN THE COURT OF SH. DINESH DAYAL
PRESIDING OFFICER INDUSTRIAL TRIBUNAL II,
KARKARDOOMA COURTS, DELHI
ID No. 303/2001
ID No. 42/2003 AND
ID No. 43/2003
IN THE MATTERS OF
M/S Bharat Litho,
235/1-2, Nangli, Sakrawati,
Najafgarh Road,
New Delhi - 110 043
...Management
Versus
Its workmen
As represented by
Engineering Workers Lal Jhanda Union]
I-441, Karampura
New Delhi - 110 015
...Workman
A W A R D
The Management of M/S Bharat Litho was
carrying on its business at 235/1-2 Nangli,
Najafgarh Road, New Delhi. On 15.8.1997 there
was an incident of fire which completely
destroyed the first & second floor of the
factory. A section of the factory near Cabinet
2 ID No. 303/2001
ID No. 42/2003
ID No. 43/2003
Department was situated on the first & second
floor of the factory. The Management declared a
lay-off of the workers working in the Cabinet
Department w.e.f. 26.8.1997 .
2. The lay-off continued for a
considerable period of time and the Secretary
(Labour) Government of National Capital
Territory of Delhi made four industrial
references relating to different period of lay-
off. The first industrial reference was made
vide Notification No. F.24 (5265/99/Lab/3747-51
dated 01.2.2000 relating to the period
26.8.1997 to 28.2.1998. This reference was sent
to the Court of Shri NK Gupta - Learned
Presiding Officer Industrial Tribunal - I and
was answered by an Award dated 15.11.2003.
3. Industrial Reference in ID No. 303/2001
was made vide Notification No. F.24
(1549)/2001/Lab/18263-67 dated 09.8.2001 for
adjudication to this Industrial Tribunal with
3 ID No. 303/2001
ID No. 42/2003
ID No. 43/2003
the following terms of reference:-
Reference
Whether the workmen S/Shri Jogender Pal
Singh , Umesh Prasad, Hargovind Singh , Brij
Bihari, Naveen Chand Joshi, Shyam Singh, Arvind
Singh , Mohd. Islam , Virender Kumar Jha,
Dinesh Kumar Singh and Sukh Sagar are entitled
for full wages for the lay-off period i.e.
w.e.f. 29.2.1998 to 30.4.2000 and if so, what
directions are necessary in this respect?
4. Industrial Reference in ID No. 42/2003
was made vide Notification No. F.24
(2603)/2002/Lab/24829-33 dated 24.1.2003 for
adjudication to this Industrial Tribunal with
the following terms of reference:-
Reference
Whether the workmen Shri Jogender Pal
Singh and ten others, whose names are given in
Annexure A are entitled to full wages for the
lay-off period i.e. w.e.f. 01.2.2001 to
4 ID No. 303/2001
ID No. 42/2003
ID No. 43/2003
31.8.2001 and if so, what directions are
necessary in this respect?
5. Industrial Reference in ID No. 43/2003
was made vide Notification No. F.24
(2602)/2002/Lab/25045-49 dated 28.1.2003 for
adjudication to this Industrial Tribunal with
the following terms of reference:-
Reference
Whether the workmen whose names are
given in Annexure 'A' are entitled to full
wages for the period of lay-off i.e. w.e.f.
01.5.2000 to 31.1.2001 and if so, what
directions are necessary in this respect?
6. The case of the workmen as stated in
the statement of claim that the lay-off with
respect to the persons named in the reference
for the parties mentioned in the three
references was illegal and justified because
the workmen concerned were the active members
5 ID No. 303/2001
ID No. 42/2003
ID No. 43/2003
of the Union and they were pressurize to leave
the job . The Management declared the lay-off
in contravention of Chapter V B of the
Industrial Disputes Act which is applicable to
the Management as the Management had more than
100 employees engaged at the premises of the
Management itself at 235/1-2, Nangli Sakrawati,
Najafgarh Road, Delhi. The declaring the lay-
off required that the Management should obtain
permission from the appropriate Government
under Section 25M(1) and Section 25M(8) of the
Industrial Disputes Act. The workmen have
claimed that they are entitled to full wages
for the period of lay-off.
7. It is alleged by the workmen that the
family members of the Management are engaged in
the same business at Mayapuri, Najafgarh &
Gurgaon in different names. All the businesses
of the Management form one Establishment as
Shri Jai Chand Khanna & Shri Kishan Lal Khanna
are looking after the different companies which
6 ID No. 303/2001
ID No. 42/2003
ID No. 43/2003
have their head office at the residence of the
aforesaid persons at B-21, Vishal Enclave, New
Delhi. The Management is now getting the work
done, which has been done by the workmen ,
from their other concerns. No notice of lay-off
was given . Lay-off for more than 45 days can
not be declared by the Management in view of
the provisions of Section 25C of the Industrial
Disputes Act.
8. The Management has contested the claims
filed by the workmen on the ground that the
cause of the workmen has not been duly
espoused. The Union which has raised this
dispute has no locus standi to represent the
workmen . Substantive number of workmen have
not espoused the cause of the workmen .
9. It is further alleged by the Management
that provisions of Chapter V B of the
Industrial Disputes Act are not applicable to
the Management as the Management has less than
7 ID No. 303/2001
ID No. 42/2003
ID No. 43/2003
100 workmen working with them . The Management
is covered by the provisions of Chapter VA .
The lay-off was declared as a consequence of
the incident of fire which took place on
15.8.1997 . The Management has alleged that it
has no relation that the other concerns
mentioned by the workmen . The Management is
not getting any work done from those other
Establishments.
10. On these allegations of the parties,
following Issues were framed in all the three
ID cases :
ISSUES :
(I) Whether the cause of the workmen
has been duly espoused?
(II) Whether the workmen are entitled
for full wages for the lay-off period?
(III) As per terms of reference.
11. The workmen have examined Shri Brij
Bihari as WW1 and Shri Virender Jha as WW2,
while the Management has examined Shri Sri
8 ID No. 303/2001
ID No. 42/2003
ID No. 43/2003
Bhagwan who is Assistant Administrative Officer
for the Management, in all the three ID cases.
12. I have heard the learned Authorised
Representatives for the parties and have
carefully gone through the file. My findings on
the Issues are as under :
ISSUE No. 1 :
13. The present claimants in the three
references have been signed by 11 workmen .
Shri Sri Bhagwan/MW1 has admitted in his cross-
examination that the claimants had signed the
statement of claim before the Conciliation
Officer. It is the case of the Management that
less than 100 persons were working in the
establishment of the Management. Therefore, it
is apparent that substantive number of workmen
of the Management have signed the claim
petition. The workmen have, therefore, espoused
each others cause and I find that the claim has
been duly espoused.
9 ID No. 303/2001
ID No. 42/2003
ID No. 43/2003
ISSUE No. 2 :
14. The workmen have submitted written
arguments and have alleged that lay-off
declared by the Management was illegal since
they did not obtain any permission from the
appropriate Government as required under
Chapter V-B of the Industrial Disputes Act.
15. Learned AR for the Management has
argued that the terms of reference do not
require this Tribunal to go into legality of
the lay-off. A perusal of the terms of
reference would show that this Tribunal has
only been referred the dispute relating to the
quantum of payment to which the workmen are
entitled for the period of lay-off. The
language of the reference suggest that the fact
that lay-off was validly & legally declared has
been accepted by the Government and only the
amount to which the workmen are entitled has
been referred to this Tribunal. It is now
10 ID No. 303/2001
ID No. 42/2003
ID No. 43/2003
settled law that the Tribunal has to confine
the adjudication within the terms of reference.
The Tribunal deprive jurisdiction from the
terms of reference and the same can not be
enlarged by the Tribunal by going into the
matters which have not been referred.
16. In the case of Modern Food Industries
(India) Ltd. Vs. Government of NCT of Delhi
2000 (85) FLR 493 (Delhi) it has been held that
whether the dispute referred require the
Tribunal to go into the question as to whether
punishment of down grading was disproportionate
to the charge or not. The Tribunal was not
required to go into the question as to whether
the punishment was legal or valid.
17. Learned AR for the workmen has argued
that under Chapter V-A of the Industrial
Disputes Act, the Management can not continue
the lay-off for more than six months. Reference
has been made to Section 25C of the Industrial
11 ID No. 303/2001
ID No. 42/2003
ID No. 43/2003
Disputes Act and it has been argued that under
the Industrial Disputes Act the Management can
resort to retrenchment after 45 days but can
not continue lay-off beyond 45 days.
18. Section 25C of the Industrial Disputes
Act provides as under :
Right of workmen laid-off for compensation ---
...............................................
Provided that if during any period of twelve months, a workman is so laid-off for more than forty-five days, no such compensation shall be payable in respect of any period of the lay-off after the expiry of the first forty-five days, if there is an agreement to that effect between the workman and the employer.
Provided further that it shall be lawful for the employer in any case falling with the foregoing proviso to retrench the workman in accordance with the provisions 12 ID No. 303/2001 ID No. 42/2003 ID No. 43/2003 contained in section 25F at any time after the expiry of the first forty-five days of the lay- off and when he does so, any compensation paid to the workman for having been laid-off during the preceding twelve months may be set off against the compensation payable for retrenchment.
Explanation ----
.............................................
19. A reading of these provisions show that if during any period of 12 months, a workman is laid-off for more than 45 days no compensation shall be payable in respect of any period of lay-off after the expiry of firsts 45 days, if there is an agreement to that effect between the workman and the employer.
20. First proviso, therefore, provides that in case of the agreement between the workman and the employer, the lay-off can continue even beyond 45 days without payment of any 13 ID No. 303/2001 ID No. 42/2003 ID No. 43/2003 compensation to the workman . It does not in any way built the lay-off beyond 45 days.
21. The second proviso enables the Management to retrench the workman in accordance with the provisions of Section 25F of the Industrial Disputes Act at any time after the expiry of first 45 days of the lay- off. This proviso also does not prohibits the continuance of lay-off nor does it make the retrenchment mandatory.
22. Arguments have been raised on behalf of the workmen that more than 100 employees are working with the Management and therefore the provisions of Chapter VB of the Industrial Disputes Act are applicable. The only evidence led by the workmen in this respect is the statement of the workmen themselves.
23. In the case of Maharastra General Kamgar Union Vs. Indian Gum Industrial Ltd. And 14 ID No. 303/2001 ID No. 42/2003 ID No. 43/2003 others reported as 2000 (86) FLR 533, it was held that "To enforce the right under Chapter VB of the Industrial Disputes Act, the initial burden to prove the foundational facts lies on the Union or the workmen challenging the action of the employer as violative of any of the provisions under the said Chapter V-B of the Act. Merely saying that the entire record is with the employer does not satisfy the elementary principles of pleadings. A suitable application can always be made to the Court for a direction to the employer to produce such record and to take inspection of such documents to prove the fact. It is the primary duty of the Union to bring on record the relevant facts and material to succeed on the law point."
24. In the case between RM Yellatti and Assistant Executive Engineer reported as 2006 (108) FLR 213 (SC), it was held that mere affidavits or self serving statements by 15 ID No. 303/2001 ID No. 42/2003 ID No. 43/2003 claimant/workman will not suffice in discharge of the burden .
25. In the instant case the workmen have not led any evidence beyond their own statements to prove that more than 100 workmen were employed with the Management. No effort was made to summon the documents from the Management to prove the number of workmen employed with the Management.
26. The workmen resorted to the argument that the presence of the some family of the Management were carrying on business under different names where similar type of products were being manufactured and therefore, all these entities should be clubbed together and the total number of workmen in all these entities should be taken into consideration . This argument was rejected by this Tribunal vide order dated 25.2.2005 . The argument was rejected on the ground that the workmen 16 ID No. 303/2001 ID No. 42/2003 ID No. 43/2003 themselves have alleged that there were 127 workmen working with the Management of M/S Bharat Litho itself. Even otherwise I find that there is no relevance in this argument in view of the fact that the legality of lay-off has not been referred to this Tribunal.
27. The Management has also proved on record Ex.M1, M2 & M3 to show that three workmen namely Arvind Singh , Har Govind Singh and Shyam Singh have already settled their dispute with the Management and have taken full & final settlement. I, therefore, hold that the workmen have not been able to show that they are entitled to full wages for the respect lay- off periods mentioned in the three references.
ISSUE No. 3 :
28. In view of my findings on Issue No. 2
above, it is held that the workmen S/Shri
Jogender Pal Singh , Umesh Prasad, Hargovind Singh, Brij Bihari, Naveen Chand Joshi, Shyam 17 ID No. 303/2001 ID No. 42/2003 ID No. 43/2003 Singh, Arvind Singh, Mohd. Islam, Virender Kumar Jha , Dinesh Kumar Singh and Sukh Sagar are not entitled for full wages for the respective lay-off periods as mentioned in the references in the above three cases. Reference is answered.
Let a copy of this Award be placed in all three ID cases and let six copies of this award be sent to the appropriate Government ie. Secretary (Labour), Government of National Capital Territory of Delhi for necessary action at their end.
File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN COURT ON 17th Day of February 2007 (DINESH DAYAL), PRESIDING OFFICER INDUSTRIAL TRIBUNAL II, KARKARDOOMA COURTS, DELHI