Indian Kanoon - Search engine for Indian Law

Delhi District Court

Naresh Kumar S/O. Sh. Tara Chand vs M/S. Kirti Graphic on 22 August, 2014

Naresh Kumar Vs. M/s. Kirti Graphics                                                                        ID No. 252/08


           BEFORE SH. ANAND  SWAROOP  AGGARWAL: PO­LC - XI :  
                    KARKARDOOMA COURTS : DELHI .

REFRENCE CASE (ID NO). 252/08
UNIQUE CASE IDENTIFICATION  NO. 02402C0621882008

In the matter of  :

Naresh Kumar s/o. Sh. Tara Chand 
R/o. B­126, J. J. Colony, Madipur, Delhi.
as represented by Pragatisheel Mazdoor Sangh, 
I­161, Karampura, New Delhi­110015                                  ......... Workman
                        
                                           Vs. 

M/s. Kirti Graphic,
(Through its proprietor Mr. Swapan Dev s/o. Sh. Arun Chandra Dev
R/o. RZD­20A, Mahavir Enclave,
Gali No. 4, Palam Road, New Delhi­110045)
IIIrd Floor, 5/39, Kirti Nagar, 
Industrial Area, New Delhi­15                               ..........Management

Date of Institution                                   : 13.08.2008
Date of reserving for award                           : 20.08.2014
Date of award                                         : 22.08.2014



AWARD :

1.

TERMS OF REFERENCE Vide Order No. F.24(1080)/07/Lab./7926­30 dated 10/07/08 Secretary (Labour) Labour Department, Government of N.C.T. Of Delhi referred following industrial dispute between Naresh Kumar s/o. Sh. Tara Chand as presented by Pragatisheel Mazdoor Sangh, I­161, Karampura, New Delhi­110015 and the management of M/s. Kirti Graphics, III Floor, 5/39, Kirti Nagar, Industrial Area, New Delhi­15 u/s. 10(1) (c) Page 1 of 18 (Anand Swaroop Aggarwal) POLC­XI/KKD/22.08.2014 Naresh Kumar Vs. M/s. Kirti Graphics ID No. 252/08 and 12(5) of the Industrial Disputes Act, 1947 read with Govt. of India, Ministry of Labour Notification No. S­11011/2/75/DK (IA) dated the 14th April 1975 for adjudication by this court :­ ''Whether services of Sh. Naresh Kumar S/o Sh. Tara Chand have been illegally and/or unjustifiably terminated by the management; and if yes, to what relief is he entitled?"

2. CASE OF THE WORKMAN AS PLEADED IN THE STATEMENT OF CLAIM.

(i) The workman joined in the employment of the management of M/s. Kirti Graphic since September 2002 as a 'Field Man' and workman was being paid wages monthly and his last drawn wages were Rs. 3500/­ per month.

(ii) The workman was denied the benefits of appointment letter, attendance register, I­Card, minimum wages, overtime, Leave book, pay slip, bonus, etc. which is mandatory provision of labour laws.

(iii) The workman was performing his duty with utmost satisfaction with the management and workman had unblemished and uninterrupted record of his services to his credit.

(iv) The management terminated the services of workman w.e.f. 11.01.2007 without assigning any reason.

(v) The action of management in terminating the services of workman is illegal, bad, unjust and malafide for the following reason:­ a.) The workman is a regular and permanent employee of the management and had unblemished and uninterrupted record of his services to his credit.

b.) The services of workman were terminated for legitimate demand of legal facilities which amounts to unfair labour practice on the part of the management.

Page 2 of 18                                                                                          (Anand Swaroop Aggarwal)
                                                                                                       POLC­XI/KKD/22.08.2014  
 Naresh Kumar Vs. M/s. Kirti Graphics                                                                         ID No. 252/08


          c.)       The workman had worked with the management more than 240 days in 

          each calendar of month. (sic)

          d.)       The services of the workman have been terminated by refusal of duties, 

          orally and without assigning any reason.  

          e.)       The work against which workman was working is still continuing and is 

          a permanent work.

          f.)       In case of retrenchment, no seniority list was displayed and no notice 

was given, no notice pay was either offered or paid to the workman at the time of termination of his services.

g.) The workman did not commit any misconduct. If there was any alleged misconduct having been committed by the workman, workman has not been served with any memo or charge sheet, and no domestic enquiry was conducted against him and workman was not offered any opportunity to being heard. h.) Even otherwise the impugned termination of services is in violation of sections 25 F, 25 G, 25 H of the Industrial Dispute Act r/w. rule 76, 77 & 78 of Industrial Disputes (Central) Rule 1957.

(vi) The workman was unemployed since 11.01.2007 despite of his best efforts.

(vii) A legal demand notice dated 27.01.2007 was served upon the management, but no reply has been received and it was presumed that demand has been rejected.

(viii) The conciliation proceedings were initiated by workman through his union but it resulted in failure due to adamant and non­cooperative attitude of the management. Hence, this claim.

With these averments, workman prayed for an award in his favour and against Page 3 of 18 (Anand Swaroop Aggarwal) POLC­XI/KKD/22.08.2014 Naresh Kumar Vs. M/s. Kirti Graphics ID No. 252/08 the management holding therein that termination of the services of the workman is illegal and unjustified and workman is entitled to reinstatement in services with continuity of service and full back wages with all consequential benefit thereof either monetary or non­monetary. Workman also prayed for cost of litigation as provided u/s 11(7) of the Industrial Disputes Act, 1947.

3. MANAGEMENT BEING PROCEEDED EX­PARTY Vide order dated 19.03.2009, management stood served through affixation but none appeared for management. Hence, management was proceeded ex­parte.

4. EX­PARTY EVIDENCE & AWARD In his ex­party evidence, workman examined himself as WW1 Mr. Naresh Kumar on 02.06.2009 and case was adjourned to 11.07.2009 for ex­party final arguments. Finally, ex­party award was passed on 01.10.2009 by ld. predecessor of this court.

5. CHALLENGE TO EX­PARTY AWARD Ex­party award dated 01.10.2009 was challenged by the management before Hon'ble High Court of Delhi in W.P. (C) 1159/2011 and vide order dated 23.08.2012 passed by Hon'ble High Court of Delhi ex­party award was set aside and parties were directed to appear on 24.09.2012.

6. APPEARANCE OF MANAGEMENT BEFORE LABOUR COURT On 24.09.2012, none appeared for workman. However, Mr. Sapan Dev, proprietor of the management appeared to whom copy of the claim with documents were supplied and matter was adjourned to 25.10.2012 for filing of proper authorization and WS.

7. STAND OF MANAGEMENT AS PLEADED IN THE WRITTEN STATEMENT OF DEFENCE.

Page 4 of 18                                                                                           (Anand Swaroop Aggarwal)
                                                                                                        POLC­XI/KKD/22.08.2014  
 Naresh Kumar Vs. M/s. Kirti Graphics                                                                        ID No. 252/08

While denying the case as stated by workman in the statement of claim, management took the stand that in fact M/s. Kirti Graphic came into existence on 01.04.2006 as a proprietorship firm and workman was employed w.e.f. 01.04.2006 and was getting Rs. 3500/­ per month as in the month of January 2007. Management further pleaded that workman was appointed as a trainee, who was not confirmed in services by any written order, and management provided all sort of guidance and help to understand the job requirements. The job performed by workman was unskilled/manual work and intermittent in nature which depended on volume of work orders received by management from its customers. Further management pleaded that workman started absenting from his duties unauthorizedly without submitting any leave application and without prior permission w.e.f. 11.07.2007 (sic) (to be correct 11.01.2007?). Management vehemently denied the averments made by workman regarding termination of his services by the management on 11.01.2007 and reiterated that management had not terminated the services of the workman, rather workman started absenting from his duties unauthorizedly w.e.f. 11.01.2007.

Management also pleaded that workman, after starting absenting from duties, made a complaint to Labour Inspector who called the management to appear before him on 24.01.2007. The management appeared before the Labour Inspector on the said date and the workman was also present before the Labour Inspector. The workman before the Labour Inspector stated that he is not interested to work with the management and his dues be cleared. Accordingly, management made the payment of earned wages from 01.01.2007 to 09.01.2007 to workman as full and final settlement. Thereafter, workman never reported for duty.

Management also pleaded that as per pleadings of workman, workman was taken back on duty at the intervention of Labour Inspector and he worked for 2 days Page 5 of 18 (Anand Swaroop Aggarwal) POLC­XI/KKD/22.08.2014 Naresh Kumar Vs. M/s. Kirti Graphics ID No. 252/08 which clearly shows that allegations of the workman that his services were terminated by the management on 11.01.2007 did not survive.

When the ex­party award came to notice of management, workman was called upon to report for duty immediately and workman reported for duty only for two days and again started absenting from his duties as he was in gainful employment. The management is still prepared to take workman on duty subject to its right of taking disciplinary action for the period of unauthorized absent from duties.

As per management, workman has not put in 240 days continuous service with management during preceding 12 months from the date of alleged termination of his services and, as such, provisions of section 25 F, 25 G & 25 H are not attracted in this case. Workman has been in gainful employment on 11.01.2007 or thereafter. No demand notice was served upon the management before dispute was raised before the Conciliation Officer. After making full and final payment to workman on 24.01.2007, management did not receive any notice from Conciliation Officer and, as such, there was no occasion for the management to be adamant and non­cooperative before the Conciliation officer. At last management pleaded that workman is not entitled to any relief whatsoever. Management prayed that workman be directed to refund Rs. 58215/­ which workman got in recovery proceedings based on ex­party award dated 01.10.2009, which has been quashed by Hon'ble High Court of Delhi.

8. REJOINDER Despite opportunity given, workman did not file rejoinder.

9. ISSUES Vide order dated 19.11.2012 following issues were framed by ld. predecessor of this court :­ (1) Whether the workman had worked with the Management for 240 days, Page 6 of 18 (Anand Swaroop Aggarwal) POLC­XI/KKD/22.08.2014 Naresh Kumar Vs. M/s. Kirti Graphics ID No. 252/08 if yes, its effect? OPM.

(2) Whether the workman has unauthorizedly remained absent from his duties, if yes, from what date and period and its effect? OPM (3) As per terms of reference.

               (4)    Relief, if any.

10.       EVIDENCE

Workman appeared in the witness box as WW1 Naresh Kumar. Workman relied upon documents Ex. WW1/1 ­ Demand Notice dated 27.01.2007; Ex. WW1/2 ­ Postal receipt dated 27.01.2007; Ex. WW1/3 - U.P.C. Receipt dated 27.01.2007; Ex.WW1/4 - Regd. AD Card; Ex. WW1/5 ­ Statement of Claim filed before Conciliation Officer; Ex. WW1/6 ­ Copy of complaint (dated 15.01.2007) made by General Secretary of union on behalf of workman to Assistant Labour Commissioner; Ex. WW1/7 ­ Complaint (dated 27.01.2007) made by General Secretary of union on behalf of workman to Assistant Labour Commissioner; Ex. WW1/8 ­ Labour Inspector's report dated 01.03.2007; Ex. WW1/9 ­ Telephone Bill dated 27.12.2008 and Ex. WW1/10 ­ Telephone Bill dated 06.01.2009. Documents Ex.WW­1/9 and Ex.WW­1/10 were objected to by ld. counsel for management being photocopies. Vide detailed order dated 02.09.2013 an application moved by workman seeking production of certain documents from management was dismissed. WE was closed on 13.11.2013 by ld. counsel for workman. Proprietor of management Sh. Swapan Dev examined himself as MW1 Swapan Dev who relied upon documents Ex. MW1/1­Order dated 23.08.2012 passed by Hon'ble High Court of Delhi in W.P. (C) No. 1159/2011; Ex. MW1/2 to Ex. MW1/9­ Register of Employment and Renumeration for the months of April 2006 to January 2007 (except for June 2006 and October 2006); Ex. MW1/10­ Cash Payment Voucher dated 24.01.2007 showing payment of Rs. 990/­ to workman as salary for the Page 7 of 18 (Anand Swaroop Aggarwal) POLC­XI/KKD/22.08.2014 Naresh Kumar Vs. M/s. Kirti Graphics ID No. 252/08 period from 01.01.2007 to 09.01.2007; Ex. MW1/11­ Cheque dated 19.01.2011 for Rs. 58,215/­; Ex. MW1/12­ Notice dated 19.02.2011 calling upon the workman to join his duties at 9.30 A.M on 21.02.2011 pursuant to Award dated 01.10.2009 and Postal Receipt dated 19.02.2011; Ex. MW1/13­ Notice dated 28.02.2011 written to workman by management and Postal Receipt dated 28.02.2011; Ex. MW1/14 ­ Speed Post Envelope dated 04.03.2011 and Ex. MW1/15­ Speed Post Envelope dated 29.03.2011. Ld. counsel for workman objected to Ex. MW1/12 and Ex. MW1/13 being unsigned documents. Management in the course of cross­examination of workman also relied upon Ex. WW1/M1X­ Bio­data of workman. ME was closed on 12.05.2014 by Mr. A.K.Sandhu ARM.

Page 8 of 18                                                                                          (Anand Swaroop Aggarwal)
                                                                                                       POLC­XI/KKD/22.08.2014  
 Naresh Kumar Vs. M/s. Kirti Graphics                                                                        ID No. 252/08


12.       My issue­wise findings are as under:­

ISSUE NO.1

Whether the workman had worked with the Management for 240 days, if yes, its effect? OPM.

In Krishna Bhagya Jala Nigam Ltd. Vs. Mohammed Rafi (2009) 11SCC 522 Hon'ble Supreme Court held that initial burden of proof is on the workman to show that he had completed 240 days of service. Also, Hon'ble Supreme Court in case law reported as Surenderanagar District Panchayat Vs. Dahyabhai Amarsinh AIR 2006 SC 110 held that "...... To attract provisions of Section 25F, the workman claiming protection under it, has to prove that there exists relationship of employer and employee; that he is a workman within the meaning of Section 2(s) of the Act; the establishment in which he is employed is an industry within the meaning of the Act and he must have put in not less than one year of continuous service as defined by Section 25B under the employer. These conditions are cumulative. If any of these conditions are missing the provisions of Section 25F will not attract. To get relief from the court the workman has to establish that he has right to continue in service and that his service has been terminated without complying with the provisions of Section 25F of the Act.....". Thus, it is for the workman to prove that he completed not less than one year of continuous service with the management to show compliance with one of the requirements of section 25F of the Industrial Disputes Act, 1947.

Here as per workman, workman joined the management in September 2002 and his services were terminated on 11.01.2007 by management illegally. On the other hand as per management, management came into existence on 01.04.2006 as a proprietorship firm and workman was employed w.e.f. 01.04.2006 and workman started absenting from his duties unauthorisedly without submitting any leave application and without prior permission w.e.f. 11.01.2007. Management further pleaded that workman has not Page 9 of 18 (Anand Swaroop Aggarwal) POLC­XI/KKD/22.08.2014 Naresh Kumar Vs. M/s. Kirti Graphics ID No. 252/08 put in 240 days continuous service with management during proceeding 12 months from the date of alleged termination of his services.

For the first time in his evidence affidavit Ex. WW1/B workman deposed as under :­ "3. That earlier, the management was running his concern by name of M/s. Kirti Graphic System at I­111, Kirti Nagar, New Delhi in partnership, but in the year 2005, the management had shifted his concern at 5/39, Kirti Nagar, Industrial Area, New Delhi and running his concern by name of M/s. Kirti Graphi in Proprietor ship and Mr. Swapan Dev is the Proprietor of management.".

MW1 Mr. Swapan Dev in his cross­examination deposed as under :­ "I established the management on 01.04.2006. I have not placed any document to show that management established on 01.04.2006. The management is sole proprietorship concern owned by myself. It is correct that management earlier running its business under Partnership in the year 2003 under name and style of M/s. Kirti Graphics System and Mr. Rahul Ajmani was my Partner. I was sleeping Partner at that time. I do not know who were employed under the establishment of M/s. Kirti Graphics System. I do not know whether the workman was working with me since the date of establishment of M/s. Kirti Graphics System or not. It is correct that I do not have filed any document to show that said Partnership was dissolved with Mr. Rahul Ajmani.....".

Thus, admittedly initially business was being run under the name and style of M/s. Kirti Graphics Systems wherein Mr. Swapan Dev and Mr. Rahul Ajmani were partners. Workman WW1 Mr. Naresh Kumar also in his cross­examination deposed that, "....Sh. Rahul Ajmani was the second partner of the Management establishment....". MW1 Mr. Swapan Dev in his cross­examination deposed that , "...I do not know whether the workman was working with me since the date of establishment of M/s. Kirti Graphics System or not.....". Also, MW1 Mr. Swapan Dev deposed that, Page 10 of 18 (Anand Swaroop Aggarwal) POLC­XI/KKD/22.08.2014 Naresh Kumar Vs. M/s. Kirti Graphics ID No. 252/08 ".... It is correct that I do not have filed any document to show Rahul Ajmani....". Thus, there is no specific and emphatic denial to the suggestion of workman that he was working with M/s. Kirti Graphics System in the year 2003 wherein Mr. Swapan Dev was one of the partners. Management has also not examined Mr. Rahul Ajmani to prove in positive / with certainty that workman was not employed with M/s. Kirti Graphics System. Thus, preponderance of probabilities in the facts and circumstances of this case does suggest that, quite possibly, workman was employed with M/s. Kirti Graphics System wherein Mr. Swapan Dev was one of the partners. Each and every employee of a partnership firm may be generally taken as employee of each of the partners inasmuch as a partnership firm, as such, does not has a separate and distinct legal personality besides that (i.e. legal personality) of its partners. Mr. Swapan Dev has not filed Partnership Deed to show that he was only a sleeping partner in M/s. Kirti Graphics System. Mr. Swapan Dev has also not filed any document to show that the said Partnership with Mr. Rahul Ajmani was dissolved. Document Ex.WW1/M1x (Bio­ Data of workman) does not in any prove that workman joined the management herein on 01.04.2006. As regards Ex.WW1/M1x workman in his cross­examination deposed that, "....At this stage document shown to the witness and admits the said document is prepared by himself, photographs and bears my signatures at point­A. Vol the date of joining mentioned encircled as 01.04.2006 is incorrect...". There is no admission on the part of workman that he joined the management on 01.04.2006. Bio­data Ex.WW1/M1x nowhere except in the encircled portion mentions any date. Workman specifically deposed that date of joining as mentioned in encircled portion is incorrect. It has not been suggested to workman that encircled portion has been written by workman himself. Also, it is noted that material within the encircled portion on Ex.WW1/M1x was initial written by using pencil and, subsequently, there is Page 11 of 18 (Anand Swaroop Aggarwal) POLC­XI/KKD/22.08.2014 Naresh Kumar Vs. M/s. Kirti Graphics ID No. 252/08 overwriting by using pen. MW1 Mr. Swapan Dev in his cross­examination deposed that, "..... It is correct that I have not issued any appointment letter to workman...". Also, Ex.MW1/2 to Ex.MW1/9 do not mention the "Date of Employment" of workman despite there being a column for the same in the said Ex. MW1/2 to MW1/9 (Form G ­ Rule 15 ­ Register of Employment and Remuneration). Absence of pleadings in statement of claim of workman corresponding to depositions made in para.3 of evidence affidavit Ex.WW1/B of workman, in the totality of facts and circumstances of this case, is immaterial keeping in view the depositions which workman was caused to make in his cross­examination regarding the second partner of M/s. Kirti Graphics System and the depositions which MW1 Mr. Swapan Dev made in his cross­ examination regarding M/s. Kirti Graphics System (admittedly a partnership firm of Mr. Swapan Dev and Mr. Rahul Ajmani). In the facts and circumstances of this case absence of such pleadings has not caused any prejudice on merits to the management. When so understood workman, by applying the principle of preponderance of probabilities, can be taken to be in employment of Mr. Swapan Dev since 2003 till 10.1.2007. Thus, workman completed not less than one year of continuous service with management as per provisions of section 25B(1) of the Industrial Dispute Act, 1947.

ALSO, it is noted that, in the totality of facts and circumstances of this case, Ex.MW1/2 to Ex. MW2/9 do not in any way help the management for many reasons namely (i) purported signatures of workman thereon do not at all match with the admitted signatures of workman available on judicial file; (ii) in the cross­examination of workman, workman has not been confronted with / suggested that each of Ex.MW1/2 to Ex.MW1/9 has been signed by him at the relevant place(s); (iii) management has not examined even a single person whose name is mentioned in the said Register (Form G - Rule 15 - Register of Employment and Remuneration) to Page 12 of 18 (Anand Swaroop Aggarwal) POLC­XI/KKD/22.08.2014 Naresh Kumar Vs. M/s. Kirti Graphics ID No. 252/08 prove that management was maintaining the said register in usual and ordinary course of its business; (iv) the said register at no page / place bears the 'Signature of Employer'; (v) MW1 Mr. Swapan Dev in his cross­examination deposed that, ".....Management is maintaining only salary register and attendance copy of the workmen. Attendance used to be marked by Mr. Shakil, Accountant after seen the attendance copy. No attendance card was issued to its employees / workman. It is correct that date of employment of workman is not mentioned on Ex. MW­1/2 to Ex. MW­1/9. It is correct that on Ex. MW­1/2 to Ex. MW­1/9 there is no signatures of employer on these documents. It is correct that document Ex. MW­1/2 to Ex. MW­1/9 are not verified by labour department. It is correct that attendance copy is not placed on record. I do not know the father's name of Mr. Shakil, Accountant. I also do not know the exact date of joining of Mr. Shakil, Accountant. (Vol. but his joining is somewhere in year 2006). It is correct that I have not given any written instructions to Mr. Shakil to mark attendance of employees. Ex. MW­1/2 to Ex. MW­1/9 was prepared by Mr. Shakil. It is correct to suggest that during the period April 2006 to January 2007 Mr. Shakil was not employed in the management. It is wrong to suggest that Ex. MW­1/2 to Ex. MW­1/9 are forged and fabricated documents....". Management has neither examined Mr. Shakil nor produced the attendance copy on the basis of which Ex.MW1/2 to Ex.MW1/9 were prepared. MW1 Swapan Dev himself deposed that Mr. Shakil was not employed in the management during the period from April 2006 to January 2007. Thus, question of Mr. Shakil marking attendance does not at all arises;

(vi) writing and pen used in the said Register do not suggest it was being maintained by management on daily basis in the usual and ordinary course of its business by management. Thus, Ex.MW1/2 to Ex.MW1/9 or the Form G - Rule 15 - Register of Employment and Remuneration do / does not help the management in any manner and Page 13 of 18 (Anand Swaroop Aggarwal) POLC­XI/KKD/22.08.2014 Naresh Kumar Vs. M/s. Kirti Graphics ID No. 252/08 the same cannot be taken as duly proved by management. MW1 Mr. Swapan Dev in his cross­examination deposed that, ".... It is correct that management did not issue any, any pay ship, leave book, attendance card, appointment letter to workman....". In such circumstances it is / was not possible for workman to prove that he did work continuously from 01.04.2006 to 11.01.2007 (in particularly in June 2006 and October 2006) by filing documentary proof. Management himself it not provide any such documentary proof to workman and, thus, the question of workman being able to prove / produce the same does not arise.

Also, management has not produced any leave application moved by workman for availing leave as per contents of Ex.MW1/2 to Ex.MW1/9 and allowed by management during workman's employment with it. If workman was on leave in June 2006 and October 2006, no leave application of workman has been produced by management. If workman was on unauthorised leave in June 2006 & October 2006, there is no explanation from management as to why it did not take disciplinary action against the workman for unauthorised absence in June 2006 and October 2006. If it was a case of fresh appointment of workman in July 2006 and Nov. 2006, management has neither so pleaded specifically in the WS nor produced any appointment letter(s) to prove that it was a case of fresh appointment of workman in July and October 2006. Even the Register (Form G - Rule 15 - Register of Employment and Remuneration) produced by management does not show the Date of Employment of workman. Thus, in the totality of facts and circumstances of this case, workman can be said to have completed service of 240 days with the management u/s. 25B(2) as well. This issue is accordingly decided in favour of workman.

ISSUE NO.2 Whether the workman has unauthorizedly remained absent from his duties, if yes, from Page 14 of 18 (Anand Swaroop Aggarwal) POLC­XI/KKD/22.08.2014 Naresh Kumar Vs. M/s. Kirti Graphics ID No. 252/08 what date and period and its effect? OPM ISSUE NO.3: As per terms of reference.

("Whether services of Sh. Naresh Kumar S/o Sh. Tara Chand have been illegally and/or unjustifiably terminated by the management; and if yes, to what relief is he entitled?") Both the issues, being interconnected, are taken up under a common discussion. Decision of Court on one issue will have a direct bearing on the decision of Court on another issue.

Workman WW1 Naresh Kumar in his cross­examination deposed as under:­ "....I was terminated on 11.01.2007. The management had not issued any termination letter to me. When I reported for duty on 11.01.2007 I was abused and thrown out of the employment by Sh. Swapan Dev, proprietor of the management. I have not filed any complaint to the police in this regard but I went to labour office but could not give the date but I have gone to labour office in the month of January 2007.

I had orally made the complaint to the officers of labour department and they have noted my complaint. I made the complaint to the Dy. Labour Commissioner who had asked me to contact Labour Inspector. I don't remember the name of said Labour Inspector. I met with the Labour Inspector and the Labour Inspector came to the office of the management alongwith me in the month of January 2007.

They have not taken me on duty in the presence of Labour Inspector. But management was asked to appear in the office of Dy. Labour Commissioner in the month of January 2007. I do not recollect the date. Sh. Swapan Dev visited the labour office and I was also present there before the labour office.

It is correct that I had received the salary for the month of December 2006 in the company itself on 07.01.2007. When I visited the labour office I was directed to report for duty and Sh. Swapan Dev has agreed to take me on duty and I came to the office on the same day. I was paid salary for 9 days and got my signatures on a voucher and thereafter I was thrown out of the office and not allowed to join the duty.

Page 15 of 18                                                                                         (Anand Swaroop Aggarwal)
                                                                                                       POLC­XI/KKD/22.08.2014  
 Naresh Kumar Vs. M/s. Kirti Graphics                                                                         ID No. 252/08

Thereafter I went to labour department on the same day and I reported the matter to Labour Inspector. But the management did not appear before the labour inspector".

Workman is relying upon Complaints Ex.WW1/6 (dated 15.01.2007), Ex.WW1/7 (dated 27.01.2007) and report of Labour Inspector Ex.WW1/8 (dated 01.03.2007) which corroborate the above depositions of workman regarding termination of his services by management. Services of workman can be terminated by management orally as well by way of refusal of duty and it is not necessary that in this regard workman is bound to produce letter terminating his services. As already noted, management in this case even did not provide appointment letter / pay slip / attendance card etc. to workman. Workman in para. 7 of the statement­of­claim pleaded that, "7. That a legal demand notice dated 27.1.2007 was served upon the management, but no reply has been received and it was presumed that demand has been rejected". Management replied the same by alleging in its WS that, "8. That the contents of para (7), are incorrect, hence denied. The concerned workman should be put to strict proof in support of the averments made in the said paragraph". But MW1 Mr. Swapan Dev in his cross­examination deposed that, "......It is correct that management received the demand notice Ex.WW1/1 and not replied the same....". Thus, management pleaded wrong facts in WS. There is no explanation as to why management did not reply demand notice.

Also there is no explanation from the management as to why it did not issue any show cause notice etc. to workman when he started remaining absenting unauthorisedly w.e.f. 11.01.2007. MW1 Mr. Swapan Dev in his cross­examination deposed that "... It is correct that management did not send any letter to workman for calling him for duties...". Preponderance of probabilities in the totality of facts and Page 16 of 18 (Anand Swaroop Aggarwal) POLC­XI/KKD/22.08.2014 Naresh Kumar Vs. M/s. Kirti Graphics ID No. 252/08 circumstances of this case suggest that management terminated the services of workman in violation of provisions of section 25F of the Industrial Disputes Act 1947. Conduct of management / workman after the passing of ex­party award has no bearing on the issue of illegal / otherwise termination of services of workman in January 2007. Workman has failed to prove violation of provisions of section 25G and 25H of the Industrial Disputes Act 1947 r/w. Section 76, 77 & 78 of the Industrial Disputes (Central) Rules 1957 inasmuch as even the necessary pleadings required for the said purpose are not there in the statement­of­claim. Thus, it is observed that management terminated the services of workman in violation of provisions of section 25F of the Industrial Disputes Act 1947. Issue no.2 is decided against the management.

Merely because management terminated the services of workman in violation of provisions of section 25F of the Industrial Disputes Act 1947 does not mean that workman is automatically entitled to reinstatement with full / partial back wages. MW1 Mr. Swapan Dev in para. 12 of his evidence affidavit deposed that, "12. That the deponent has closed the business of M/s Kirti Grafic, w.e.f. 31/05/2013 and surrendered the rented premises 3rd Floor, Kirti Nagar Industrial Area, New Delhi­110015". But in his cross­examination MW1 Mr. Swapan Dev deposed that, "... It is correct that I have not placed any documentary proof to show that management has closed down the firm...". Failure to produce documentary proof as above does not necessarily mean that management has not closed down its business. Closure / Non­ Closure is in issue. Also it is noted that management herein is a Sole Proprietorship firm and, thus, order of reinstatement of workman in service may not be in the interest of cordial industrial relations between management and workman. Further, it is pertinent to note that workman in his cross­examination deposed that, "... After termination of my services by the Management I never tried to search for a suitable job Page 17 of 18 (Anand Swaroop Aggarwal) POLC­XI/KKD/22.08.2014 Naresh Kumar Vs. M/s. Kirti Graphics ID No. 252/08 for my self at any place. Presently I am helping my father in his shop....". In order to entitle the workman to back wages, workman was supposed to prove that he did make sincere / serious efforts to get alternative service but he did not get the same. But workman herein admittedly did try to search for a suitable job. Workman in his cross­ examination deposed that, ".. It is correct that I received a cheque of Rs.58,215/­ and deposited the same in my account in the Union Bank of India....". Workman has already received Rs.58,215/­ from management in execution of ex­party award which has been set aside by Hon'ble High Court of Delhi. In my considered opinion grant of Rs.58,215/­ to workman as lumpsum compensation on account of illegal termination of his services by management would meet ends of justice in the totality of facts and circumstances of this case. Workman has already received the said sum from management and workman is not entitled to any other / further relief in his favour and against the management. Issue No.3 is decided according in favour of workman. ISSUE NO.4 Relief.

As per above findings.

13. Reference is answered accordingly.

14. A copy of the award be sent to the Deputy Labour Commissioner, (District West), Delhi for further necessary action.

15. File be consigned to Record Room after completing due formalities. PRONOUNCED IN THE OPEN COURT ON 22.08.2014.

(ANAND SWAROOP AGGARWAL) PO­LC­XI, Karkardooma Courts, Delhi Page 18 of 18 (Anand Swaroop Aggarwal) POLC­XI/KKD/22.08.2014