Delhi District Court
Ashu @ Iklash S/O. Mr. Akhtar Ali vs M/S. Marcos Enterprises Pvt. Ltd on 13 December, 2014
Ashu @ Iklash Vs. M/s. Marcos Enterprises Pvt. Ltd. & Ors. DID No. 164/14
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI:
KARKARDOOMA COURTS: DELHI
DIRECT INDUSTRIAL DISPUTE (DID) NO. 164/14 (OLD NO. 44/2007)
UNIQUE CASE IDENTIFICATION NO. 02402C0140402007
In the matter of:
Ashu @ Iklash s/o. Mr. Akhtar Ali
R/o. H. No. RZ350, Gali No. 13,
West Sagarpur, New Delhi.
Through: Mr. Awdesh Singh
796, Pocket No.1, Paschim Puri,
New Delhi - 110063 .... Workman / Applicant
Vs.
1.M/s. Marcos Enterprises Pvt. Ltd.
A82, Naraina Vihar, Phase - I New Delhi - 110028
2. M/s. Sunshine Garments A82, Naraina Vihar, Phase - I New Delhi - 110028
3. M/s. G. S. Garments A82, Naraina Vihar, Phase - I New Delhi - 110028 .... Managements Date of Institution : 21.02.2007 Date of reserving for award : 01.12.2014 Date of award : 13.12.2014 AWARD
1. CASE OF WORKMAN AS PLEADED IN AMENDED STATEMENT OF CLAIM FILED U/S. 10 (4A) OF THE INDUSTRIAL DISPUTES ACT, 1947
(i) Workman was working with management since 08.05.1993 as 'Tailor' and last drawn salary of workman was Rs. 3736/ per month. Management used to Page 1 of 11 (Anand Swaroop Aggarwal) POLCXI/KKD/13.12.2014 Ashu @ Iklash Vs. M/s. Marcos Enterprises Pvt. Ltd. & Ors. DID No. 164/14 take work from the workman in management no. 1 but service record of the workman, as per convenience of management, was at different times shown either with management no. 1 or management no. 2 or management no. 3.
(ii) Workman was having clean and unblemished service record and management was having no complaint of any nature regarding work of the workman.
(iii) At the time of appointment of the workman, management took signatures of the workman on blank appointment letter, blank paper and on blank voucher but copies of the same were not given to workman; if management want to use those documents against the workman, same is not acceptable to workman.
(iv) More than 300 employees are working with the management and main work of the management was to manufacture readymade garments and, further, for this purpose, management has opened three factories in the name of management no. 1, management no. 2 and management no. 3 at the same address, which is / constitute one industrial establishment under the Industrial Disputes Act, ESI Act and Provident Fund Act.
(v) Management was not maintaining the service record of the workman from the date of his appointment and, also, management was neither making payment of minimum wages as declared by Delhi Government nor management was providing other legal facilities. On account of this, many employees working in the factory including the workman became the members of the union. Union raised an Industrial Dispute regarding date of appointment of workman before the Conciliation Officer. Mr. Amrender, in order to make the abovesaid industrial Page 2 of 11 (Anand Swaroop Aggarwal) POLCXI/KKD/13.12.2014 Ashu @ Iklash Vs. M/s. Marcos Enterprises Pvt. Ltd. & Ors. DID No. 164/14 dispute ineffective, terminated the services of the workman on 10.01.20007 without making payment of salary for December, 2006 and 7 days salary of January, 2007. Also management did not give any notice nor disclosed any reason nor affixed the seniority list nor took the permission from the government despite the fact that workman worked for more than 240 days per year. The act of the management in terminating the services of the workman is illegal and unjustified.
(vi) Management has terminated the services of the workman during the pendency of conciliation proceedings in violation of Section 33 of the Industrial Disputes Act, 1947. The act of the management in terminating the services of the workman is void abinitio.
(vii) Workman made a complaint to labour department on 11.01.2007, 16.01.2007 and 17.01.2007 for getting the earned wages and reinstatement in service but management did not cooperate with the labour department and management despite the advice of Labour Inspector neither reinstated the workman in service nor paid the earned wages. Hence, this industrial dispute under section 10 (4A) of the Industrial Disputes Act, 1947 which is a part of demand notice.
(viii) At the time when the services of the workman were terminated, many employees junior to workman was working with the management and the work which was being done by workman is still continuing as earlier and the work of the workman is got done from junior and new employees.
(ix) Workman has been visiting the management daily after termination of his Page 3 of 11 (Anand Swaroop Aggarwal) POLCXI/KKD/13.12.2014 Ashu @ Iklash Vs. M/s. Marcos Enterprises Pvt. Ltd. & Ors. DID No. 164/14 services but neither workman is being taken on duty nor workman is being paid salary nor workman is being permitted to mark his attendance on the muster roll.
(x) Workman is unemployed since the date of termination of his services and workman has got no source of livelihood (rojiroti) despite the fact that workman made endless efforts to get the service but did not get any service.
With these averments, workman prayed for an award in favour of the workman and against the management declaring the act of the management in terminating the services of the workman on 10.01.2007 as illegal, unjustified and reinstatement of workman in service with continuity of service and full back wages alongwith interest @ 18% per annum.
2. CASE AS PLEADED BY MANAGEMENT No.1 (M/s. MARCOS ENTERPRISES PVT. LTD.) IN ITS WS.
Management no.1, while denying in toto the case as pleaded workman in the statement of claim, took the stand that neither applicant has ever been appointed by management no.1 nor applicant ever worked in management no.1 company. The applicant has never been employed by management no.1 nor management no.1 is / was the employer of applicant. Neither employer - employee relationship existed between the applicant and the management no.1 nor applicant ever discharged his duty in the management no.1 company. Management no.1 also pleaded that it would be ridiculous to assume that applicant who claims to be tailor is idle particularly when there is acute dreath (sic) of trained tailors in the readymade garment industries. Management no.1 further pleaded that applicant has used the provisions of the Industrial Disputes Act, 1947 as an instrument to cause perpetual harassment to the management no.1 company Page 4 of 11 (Anand Swaroop Aggarwal) POLCXI/KKD/13.12.2014 Ashu @ Iklash Vs. M/s. Marcos Enterprises Pvt. Ltd. & Ors. DID No. 164/14 and to enrich himself on the basis of frivolous, mischievous, rigmarole dispute. At last management no.1 pleaded that neither the applicant was / is an employee of the management no.1 nor management no.1 ever terminated the services of applicant nor management no.1 withheld / deducted / delayed any amount which fact disentitle the applicant to seek the relief.
3. CASE AS PLEADED BY MANAGEMENT NO.2 (M/S. SUNSHINE GARMENTS) IN ITS WS.
Management no.2, while denying in toto the case as pleaded by workman in the statement of claim, took the stand that neither applicant has ever been appointed by the closed firm nor applicant ever worked in the closed firm for the alleged period 08.05.1993 to 10.01.2007. Management no. 2 pleaded that there is no firm in existence at A - 82, Naraina Industrial Area, Phase - I, New Delhi. Management no.2 further pleaded that there was no inter - dependence, functional integrity between the closed firm and management no.1 and no. 3. As per management no.2 applicant was not in employment with management no.2 and no employer - employee relationship existed between management no.2 and the applicant till the date of closure and, thereafter, as the firm ceased to exist, management no.2 had no reason either to terminate the services of applicant or to withheld any alleged wages. All business activities were closed down irrevocably w.e.f. 31.03.2006. At last management no.2 pleaded that neither the applicant was / is an employee of management no.2 nor management no.2 ever terminated the services of applicant nor management no.2 withheld / deducted / delayed any amount nor the management no.2 firm is doing any business activities after 31.03.2006 which fact disentitle the applicant to seek the relief. Page 5 of 11 (Anand Swaroop Aggarwal)
POLCXI/KKD/13.12.2014 Ashu @ Iklash Vs. M/s. Marcos Enterprises Pvt. Ltd. & Ors. DID No. 164/14
4. CASE AS PLEADED BY MANAGEMENT NO.3 (M/S. G. S. GARMENTS) IN ITS WS.
Management no.3, while denying in toto the case as pleaded by workman in the statement of claim, pleaded that there is no firm in existence at A82, Naraina Industrial Area, Phase - I, New Delhi. There is no inter - dependence, functional integrity between the management no.3 and management no.1 and no.2. The applicant had never executed / discharged his duties with management no.3 nor his record was ever shown / maintained in management no.3 as falsely alleged. If further, pleaded that neither the applicant was / is an employee of management no.3 nor the management no.3 ever terminated the services of applicant nor management no.3 withheld / deducted / delayed any amount which fact disentitle the applicant to seek the relief.
5. REJOINDERS Workman filed separate rejoinders to the written statements of management no.1 and no.3 denying the case / defence pleaded by these managements and reaffirming the averments made in statement of claim.
6. ISSUES Following issues were framed on 18.04.2007:
(i) Whether there existed a relationship of employee and employer between the workman and management no. 1 and 3? OPW
(ii) Whether the three managements constitute one industrial establishment as alleged in paragraph 4 in statement of claim? If so, to what effect? OPW
(iii) Whether the services of the workman were terminated as alleged in statement of claim? OPW Page 6 of 11 (Anand Swaroop Aggarwal) POLCXI/KKD/13.12.2014 Ashu @ Iklash Vs. M/s. Marcos Enterprises Pvt. Ltd. & Ors. DID No. 164/14
(iv) Whether the establishment of management no.2 closed since 31.3.2006? If so to what effect? OPM2
(v) Relief.
7. EVIDENCE Workman appeared in the witness box as WW1 Mr. Ashu. Workman also examined WW2 Mr. Ansar Ahmed and WW3 Mr. Inderpal. Workman relied upon documents namely Ex. WW1/1 Complaint dated 11.01.2007 made to Asst. Labour Commissioner; Ex. WW1/2 Complaint dated 16.01.2007 made to Asst. Labour Commissioner; Ex. WW1/3 Complaint dated 17.01.2007 made to Asst. Labour Commissioner; Ex. WW1/4 Letter dated 13.03.2007 sent by Labour Inspector to union; Ex.WW1/5 Statement of claim filed before Conciliation Officer; Ex.WW1/6 Rejoinder dated 20.03.2007 to the written statement of management M/s. Sunshine Garments; Ex.WW1/7 Rejoinder dated 20.03.2007 to the written statement of M/s. Marcos Enterprises; Ex. WW1/8, Ex.WW1/9 and Ex. WW1/10 whose nature not clear from the contents. W.E. was closed on 16.03.2011 by ld. ARW.
Management no.1 examined MW1 Mr. Amrish / Ambrish and relied upon document Ex. MW1/1 Resolution of meeting of Board of Directors; Ex. MW1/2 Attendance Register for the period from April 2006 to March 2007 and Ex. MW1/3 - ESI Returns for the period from 2004 to 2007. None appeared for workman either on 25.11.2014 when management no.1 examined MW1 Mr. Ambrish or on 01.12.2014 when case was fixed for final arguments.
8. ARGUMENTS None appeared for workman to address final arguments. I have heard Ms. Page 7 of 11 (Anand Swaroop Aggarwal) POLCXI/KKD/13.12.2014 Ashu @ Iklash Vs. M/s. Marcos Enterprises Pvt. Ltd. & Ors. DID No. 164/14 Satender Verma, Advocate for management. Written submissions have also been filed by Ld. counsel for management. Ld. counsel for management relied upon case laws case laws reported as (i) Workmen of Nilgiri Coop. Marketing Society Ltd. Vs. State of Tamil Nadu and Ors. 2004 LLR 351; (ii) Municipal Corporation, Faridabad Vs. Siri Niwas V (2004) SLT 566; (iii) Rajasthan State Ganganagar S. Mills Ltd. Vs. State of Rajasthan & Anr. V (2004) SLT 686; (iv) UCO Bank Vs. Presiding Officer & Another 1999 V AD (DELHI) 514; (v) Suresh Chand Mathur Vs. Harish Chand Mathur 2010 IX AD (DELHI) 546; (vi) Chander Sain and Others Vs. J. B. Garments 2009 LLR 959; (vii) Krishna Bhagya Jala Nigam Ltd. Vs. Mohammad Rafi 2006 LLR 1080; (viii) The Range Forest Officer Vs. S. T. Hadimani 2002 LLR 339; (ix) Ravi N. Tikoo Vs. Deputy Commissioner (S.W) & Ors. 2006 LLR 496; (x) Automobile Association of Upper India Vs. P.O. Labour Court II & Anr. 2006 LLR 851; (xi) U.P. State Electricity Board Vs. Presiding Officer, Labour CourtIV, Kanpur and another 2004 LLR 418; (xii) Prem Vs. Chirag Boutique 2008 LLR 191; (xiii) Dhyan Singh Vs. Raman Lal 2001 LLR 148 and (xiv) Manager, R.B.I. Banglore, Appellant Vs. S. Mani and Others AIR 2005 Supreme Court 2179. Material available on judicial file perused very carefully. I have given a thoughtful consideration to the facts and circumstances of this case as they arise on the basis of material available on judicial file.
9. My ISSUE - WISE findings are as under: ISSUE No. 1:
Whether there existed a relationship of employee and employer between the workman and management no. 1 and 3? OPW It is noted that all the three managements named by workman in the statement of claim have denied existence of any relationship of employee and Page 8 of 11 (Anand Swaroop Aggarwal) POLCXI/KKD/13.12.2014 Ashu @ Iklash Vs. M/s. Marcos Enterprises Pvt. Ltd. & Ors. DID No. 164/14 employer(s) between workman and the said management(s). Onus to prove existence of such relationship is on the workman. As per workman, workman was employed by management no.1 since 08.05.1993 till 10.01.2007. Except the oral depositions of workman, WW2 Mr. Ansar Ahmed and WW3 Mr. Inderpal no documentary proof of any nature whatsoever, such as appointment letter, salary slip, payment of salary by management(s) to workman etc., has been proved by workman to show that there existed relationship of employee and employer between workman and management(s) in terms of averments made in statement of claim.
None of the document relied upon by workman is of any help the workman to establish such relationship. There is no documentary proof of workman having worked with the management in terms of averments made in the statement of claim or the depositions made in evidence affidavit of workman. Workman in his cross examination admitted that, ".......It is correct that Ex.WW1/8 to Ex.WW1/10 does not bear the name of any of the management......". Even the depositions of WW2 Mr. Ansar Ahmed and WW3 Mr. Inderpal do not help the workman inasmuch as even these witnesses have not filed / proved any document to show their employment with management since 07.05.1993 and 03.05.1992 respectively. WW2 Mr. Ansar Ahmed and WW3 Mr. Inderpal have filed their affidavit(s) without any documentary proof in support of depositions made by them in their respective affidavits. Further, WW2 Mr. Ansar Ahmed and WW3 Mr. Inderpal are interested witnesses as their names are also mentioned in complaints Ex.WW1/1 to Ex.WW1/3 made against the management. They are similarly situated qua the management as the workman herein. Also depositions made by MW1 Mr. Ambrish have not unchallenged. Issue is accordingly decided Page 9 of 11 (Anand Swaroop Aggarwal) POLCXI/KKD/13.12.2014 Ashu @ Iklash Vs. M/s. Marcos Enterprises Pvt. Ltd. & Ors. DID No. 164/14 against the workman.
ISSUE NO. 2 Whether the three managements constitute one industrial establishment as alleged in paragraph 4 in statement of claim? If so, to what effect? OPW Onus regarding this issue is on workman. Documentary evidence brought on record by workman does not help the workman in discharging onus of this issue. Workman in his cross examination deposed that, ".... Except the documents filed on record I do have any document to prove that either I was in employment with M/s Sunshine Garments or that I was transferred in Marcos Enterprises Pvt. Ltd. or I worked with M/s. Marcos Enterprises Pvt. Ltd. or GS Garments....". On the basis of material on record workman can be said to have failed to discharge onus regarding the issue. Issue is accordingly decided against the workman. ISSUE No. 3 Whether the services of the workman were terminated as alleged in statement of claim? OPW Here workman has failed to establish that there existed relationship of employer and employee between workman and any of the management(s). In the absence existence of such relationship, no question of termination of services of workman by management(s) arises. Issue is accordingly decided against the workman.
ISSUE No.4 Whether the establishment of management no.2 closed since 31.3.2006? If so to what effect? OPM2 Onus regarding this issue was on management no.2. But no evidence has been led by management no.2. However, workman in his cross examination Page 10 of 11 (Anand Swaroop Aggarwal) POLCXI/KKD/13.12.2014 Ashu @ Iklash Vs. M/s. Marcos Enterprises Pvt. Ltd. & Ors. DID No. 164/14 deposed that, "...... I do not know whether M/s. Sunshine Garments was closed down w.e.f. on 31.03.06. Vol. the management has changed the name of the said firm.....". There is no emphatic denial by workman to the suggestion given to workman in his cross examination regarding closure of management no.2. Thus, possibility of management no.2 having been closed down as suggested cannot be ruled out altogether. The voluntary depositions of workman are vague inasmuch as the changed name has also not been disclosed by workman. Issue is, accordingly, decided against the workman.
ISSUE No.5 : Relief In view of my above findings, workman is held to be not entitled to any relief against any of the management(s) named herein.
10. A copy of the award be sent to Office of the concerned Deputy Labour Commissioner for further necessary action.
11. File be consigned to Record Room after completing due formalities. PRONOUNCED IN THE OPEN COURT ON 13.12.2014 (ANAND SWAROOP AGGARWAL) POLCXI, KKD Courts, Delhi Page 11 of 11 (Anand Swaroop Aggarwal) POLCXI/KKD/13.12.2014