Delhi District Court
Sh. Triveni Shankar Srivastava vs The on 31 August, 2022
IN THE COURT OF SHRI RAJ KUMAR
PRESIDING OFFICER : LABOUR COURT- III
ROUSE AVENUE COURTS COMPLEX : NEW DELHI.
LC No. 897/2016
CNR No. DLCT13-001978-2016
Sh. Triveni Shankar Srivastava
S/o Late Mr. Jugal Kishor,
R/o 67B, DDA Flats, Shivaji Enclave,
Near Mother Dairy, Rajouri Garden,
Delhi - 110 027
... Workman
Versus
The Management of
M/s. Lobo Staffing Solutions Pvt. Ltd.
Eros Apartment, 56, 701-704,
Nehru Place,
New Delhi - 110019.
... Management
Date of Institution : 12.02.2016
Date of Arguments: 24.08.2022
Date of Order : 31.08.2022
ORDER
1. The present application under Section 33-C (2) of the Industrial Dispute Act, 1947 has been filed by the workman on the ground that he was appointed as "Modern Trade Officer" for a fixed period from February 1, 2011 till January 31, 2012 on a purely contractual basis and during this period of contractual appointment, he was deputed with KDD (India) Private Limited. It has been further stated that after making all the deductions and adding all the allowances, the monthly salary of the LCA No. 897/16 Triveni Shankar Srivastava V. Lobo Staffing Solution P. Ltd.
Page 1/11workman/claimant was fixed to Rs.17,197/-. It has been further stated that one of the conditions of the contract of employment was that the said contract was terminable by either party after giving one month's notice in writing or salary in lieu of notice to the other.
2. It has been further stated that the management and KDD (India) Private Limited, where the workman/claimant was placed by the management closed its establishment with effect from October, 2011 without seeking any permission from the Labour Department and without giving any notice to the workman/claimant. It has been alleged that the workman/claimant was also not provided his salary in terms of the contract of the employment leaving him in chaos for his survival.
3. The workman/claimant, in the present application, has alleged that he was not paid the salary for the month of December, 2011 and January 2012 and the payment of one month's salary in lieu of the notice was also not provided to him. It has been further stated that the travel and dearness allowance and leave encashment were also not being provided to him by the management.
4. It has been further stated that in order to claim the due amount, the workman/claimant approached the Deputy Labour Commissioner (South) under the Delhi Shops & Establishment Act, 1954 and the Ld. Deputy Commissioner directed the management to pay the salary of one month i.e. for the period of November, 2011 in the form of earned wages to the LCA No. 897/16 Triveni Shankar Srivastava V. Lobo Staffing Solution P. Ltd.
Page 2/11workman/claimant. It has been further stated that the workman/claimant is entitled to claim an amount of Rs.34,394/- on account of salary @ 2 months with effect from December, 2011 to January, 2012, Rs. 17,197/- on account of Notice pay @ per month, Rs.5,780/- on account of Travel and Dearness Allowances and other expenses till December, 2011 and Rs.8,340/- on account of Leave Encashment, thus, totalling to Rs. 65,711/-.
5. It has been further stated that the claimant/workman served the demand notice dated 18.06.2015 and the legal notice dated 09.07.2015 upon the management but of no use.
6. On the basis of the above said allegations as contained in the present application, the workman/claimant has prayed that the management be directed to pay an amount of Rs.65,711/- together with the interest @ 18% per annum and the litigation costs in the sum of Rs.5,000/- and the costs along with compensation to the tune of Rs. 25,000/- as well.
7. In the reply/written statement filed on record by the management, it has been stated that the management is engaged in the business of supply of manpower to its clients i.e. to the third party. It has been further stated that the management is not concerned with any act and omission on behalf of any third party. It has been further stated that if the third party is not following the labour laws, then, the management is not liable for the same.
8. It has been alleged by the management that the LCA No. 897/16 Triveni Shankar Srivastava V. Lobo Staffing Solution P. Ltd.
Page 3/11claimant/workman is guilty of suppression of material facts. It has been admitted that the claimant/workman was deployed at KDD (India) Private Limited as Sales Officer for a period of one year with effect from 01.02.2011 to 31.01.2012 purely on contractual basis. It has been admitted that in the month of October, 2011, KDD (India) Private Limited on account of some loss decided to shift its operation.
9. The management has taken the stand that the claimant/workman on 22.11.2011 had written a resignation letter in his own handwriting and submitted the same to the management thereby leaving the employment of the management. It has been further stated that in the said resignation letter, the claimant/workman specifically mentioned that the said resignation letter will be effective from 21.10.2011.
10. It has been further stated that thus, the claimant/workman is not entitled for one month's notice pay or any other amount either in terms of wages or any other allowances.
11. It has been further stated that the claimant/workman approached the Deputy Labour Commissioner under Section 21 (2) of the Delhi Shops & Establishment Act, where he claimed that he worked only till November, 2011 and sought his earned wages only for the month of November, 2011. It has been further stated that the Authority under the said Act passed an ex-parte order, vide which Rs. 17,628/- as earned wages and Rs. 100/- as costs were directed to be paid by the management. It has been further stated that the management paid the said amount on 14.02.2014 to the claimant/workman and as such, nothing LCA No. 897/16 Triveni Shankar Srivastava V. Lobo Staffing Solution P. Ltd.
Page 4/11remains due and payable to the claimant/workman. It has been further stated that the claimant/workman was appointed as Sales Officer who was enjoying managerial power as well and as such, he was not a workman within the definition of the workman under the ID Act. It has been reiterated that the claimant/workman is not entitled for any dues since he has resigned himself from his duties. The receipt of legal notice dated 09.07.2015 has been denied. Rest of the contents of the application have been denied by the management and it has been prayed that the application filed by the claimant/workman be dismissed.
12. Rejoinder/replication has been filed on record by the workman reiterating and reaffirming the stand as taken by the workman in his statement of claim and denying the contents of the written statement filed by the management.
13. The Ld. Predecessor of this court, out of the pleadings of the parties, framed the following issues on 18.04.2017 :
1. Whether the claim is not maintainable for the reasons stated in para 2, 3, 5 of the preliminary objection of the WS / reply? (OPM).
2. Whether the claimant is entitled to the claims as prayed in his application filed under Section 33-C(2) of ID Act? (OPW).
3. Relief.
14. The claimant/workman has examined himself as WW-1 and in his evidence by way of affidavit Ex.WW1/A on record, he has reiterated and reaffirmed the stand as taken by the LCA No. 897/16 Triveni Shankar Srivastava V. Lobo Staffing Solution P. Ltd.
Page 5/11claimant/workman in the statement of claim. The claimant/workman has filed on record the copy of the order dated 02.01.2014 passed by Dy. Labour Commissioner (South) under the Delhi Shops and Establishment Act, 1954 as Ex.WW1/A1 and the copy of the legal notice dated 09.07.2015 as Ex.WW1/B1.
15. In the cross-examination, WW-1 admits it to be correct that his appointment was fixed term contractual with effect from 01.02.2011 to 31.01.2012. He admits it to be correct that he was given appointment letter by the management. He admits it to be correct that M/s. KDD (India) Private Limited was closed in October, 2011. He states that he contacted the management after one month of closure of M/s. KDD (India) Private Limited regarding work. He further states that when he did not receive any salary, then, he talked to the Manager of the management in this regard and for work also. WW-1 further states that after so many days, he was told that M/s. KDD (India) Private Limited had been closed. He admits it to be correct that the salary for the month of November, 2011 was received through Deputy Labour Commissioner, Pushp Bhawan, Saket. He admits it to be correct that he did not work with the management for the month of December, 2011 to 31.01.2012. He further states that he was sitting idle at home and that is why, in the legal notice Ex.WW1/B1 he has claimed the wages/salary for the period from December, 2011 to February, 2015.
16. The management has filed the evidence by way of affidavit of Sh. Anurag Rai but the management failed to examine the said witness and the evidence on behalf of the LCA No. 897/16 Triveni Shankar Srivastava V. Lobo Staffing Solution P. Ltd.
Page 6/11management was closed by this court on 21.05.2022.
17. I have carefully gone through the entire material available on record and heard the rival submissions of both the parties.
18. My issue-wise findings on the issues framed on 18.04.2017 by the Ld. Predecessor of this court are as under :
Issue No. 1 and 2 :
Both these issues are being taken up together as the same are connected inter-se and over-lap each other.
19. Certain facts in the present matter are not in dispute. It is not in dispute that the claimant/workman was appointed by the management on contractual basis for a fixed term with effect from 01.02.2011 till 31.01.2012. It is not in dispute that the salary of the claimant/workman was settled at Rs.17,197/- per month. It is not in dispute that the management deputed/deployed the claimant with KDD (India) Private Limited which has closed its operation in the month of October, 2011. The claimant/workman, in the present claim has claimed the salary for two months i.e. December, 2011 and January, 2012 together with the notice pay for one month besides travel allowance, dearness allowance and leave encashment.
20. It is not in dispute that the claimant/workman approached the Deputy Labour Commissioner under Section 21 (2) of the Delhi Shops & Establishment Act and the competent authority under the said Act passed the orders dated 02.01.2014 which have been placed on record by the claimant/workman in the form LCA No. 897/16 Triveni Shankar Srivastava V. Lobo Staffing Solution P. Ltd.
Page 7/11of Ex.WW1/A1, directing the management to pay the amount of Rs. 17,628/- as earned wages besides the compensation of Rs. 100/-. The said orders have been admitted by the management and the management has also taken the stand that the said orders were complied with by it.
21. The contract of employment governing the terms and conditions of employment of the claimant/workman with the management has not been placed on record either by the management or by the claimant/workman. The claimant/workman has placed on record the orders passed by the competent authority under the Delhi Shops & Establishment Act, Ex.WW1/A1 and the legal notice dated 09.07.2015 as Ex.WW1/B1.
22. As stated hereinabove, no evidence at all has been led by the management. The management has taken the stand that the claimant/workman was employed as Sales Officer and as such, he was enjoying managerial authority and that is why, he is not covered under the definition of the workman under the ID Act. The management has taken the further stand that the claimant submitted a written resignation letter dated 22.11.2011 in his own handwriting mentioning therein that the said resignation letter shall be effective from 21.10.2011. The management has taken the further stand that the claimant left the services of the management on his own and as such, he is not entitled for any relief.
23. I am of the opinion that neither the above said alleged resignation letter has been placed on record by the management LCA No. 897/16 Triveni Shankar Srivastava V. Lobo Staffing Solution P. Ltd.
Page 8/11nor the management has been able to prove it. As stated hereinabove, the case of the management is that of no evidence and that is why, in the considered opinion of this court, the management has not been able to prove its above stated stands as taken by it in the written statement/reply.
24. The management has taken the further stand that after the payment of salary for the month of November, 2011 as has been admitted by the claimant/workman in his cross-examination in pursuance to the orders dated 02.01.2014 passed by the authority under the Delhi Shops & Establishment Act, the workman/claimant is not entitled for any claim.
25. I am of the opinion that the management has not been able to prove its above said stand. Admittedly, the salary for the month of December, 2011 and January, 2012 has not been paid by the management to the workman/claimant. Needless to mention that as per the own admission of the management, the workman was employed by it up-to January, 2012 for a fixed term appointment.
26. It is true that the claimant/workman in the cross- examination has admitted that he did not work with the management for the month of December, 2011 and January, 2012 but the claimant/workman in the cross-examination categorically states that he was sitting idle from December, 2011 to February, 2015.
27. I am of the opinion that the period of December, 2011 and January, 2012 is covered under the fixed term employment i.e. LCA No. 897/16 Triveni Shankar Srivastava V. Lobo Staffing Solution P. Ltd.
Page 9/11under the contract which was executed in between the parties to the present application. To my mind, if no work was assigned to the claimant/workman during the above period of two months, then, it was not the fault of the claimant/workman but that of the management.
28. Issue No. 1, thus, is decided against the management.
29. So far as Issue No. 2 is concerned, to my mind, the claimant/workman is entitled for the salary to the tune of Rs.34,394/- @ Rs.17,197/- for the period of December, 2011 and January, 2012. I am also of the opinion that the claimant/workman is also entitled for the notice pay for one month amounting to Rs.17,197/-. The above said amount comes to Rs. 51,591/-. The litigation costs of Rs.5,000/-, in the facts and circumstances of the present case are also awarded in favour of the workman.
30. Relief :
In the light of the above said discussion, the claimant/workman is held entitled for the total amount of Rs. 56,591/- (Rupees Fifty six thousand five hundred ninety one only) on account of the salary for the months of December, 2011 and January, 2012; notice pay for one month and the litigation costs. The amount of compensation shall be paid to the workman by the management within one month from the date of passing of this order, failing which the amount shall carry an interest @ 9% p.a. LCA No. 897/16 Triveni Shankar Srivastava V. Lobo Staffing Solution P. Ltd.Page 10/11
File be consigned to Record Room after due compliance.
ANNOUNCED IN OPEN COURT on day of 31st day of August, 2022 RAJ Digitally signed by RAJ KUMAR Date: KUMAR 2022.09.01 15:51:50 +0530 (Raj Kumar) Presiding Officer, Labour Court-III Rouse Avenue Courts, New Delhi.
LCA No. 897/16 Triveni Shankar Srivastava V. Lobo Staffing Solution P. Ltd.
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