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Delhi District Court

Sh. Hari Om vs M/S Asharfi Enterprises on 28 February, 2013

                   IN THE COURT OF SHRI SANJAY SHARMA
                  PRESIDING OFFICER : LABOUR COURT­XIX 
                       KARKARDOOMA COURTS : DELHI.
LIR/D No. 971/2011
UNIQUE ID NO. 02402C0 324992010
Sh. Hari Om
S/o Sh. Shri Lal
R/o D­196, Sector­1
Pappankalan, Dwarka
New Delhi
                                                   ............. WORKMAN
      Versus

M/s Asharfi Enterprises
RZP­56A, Rajnagar Part­II
Palam Colony, New Delhi ­ 110045
                                                    ............... MANAGEMENT
           Date of institution of the case    : 19.11.2010
           Date on which award reserved  : 18.02.2013
           Date of passing the award         : 28.02.2013
             (Claim u/s 10 (4A) of the Industrial Disputes Act)
AWARD
                The present claim has been filed by the workman against 
the   management  alleging   therein   that   he   joined   the   services   of   the 
management as 'Gate Keeper' on 17.09.2007 at last drawn wages of Rs. 
5255/­   per   month.   It   was   submitted   that   he   worked   sincerely   and 
honestly and never gave any chance of complaint to the management. It 
was alleged that he was not provided legal facilities such as attendance 
card, appointment letter, leaves, bonus etc. and on his repeated demands 
for   the   same,   management   got   annoyed   and   terminated   his   services 
w.e.f. 25.05.2010 after obtaining his signatures on blank papers on the 
pretext of giving his legal dues and withholding his earned wages for 
01.04.2010 to 25.05.2010. No notice or charge sheet was issued to him. 
On 21.10.2010 he sent demand notice to the management but it was not 

LIR/D No. 971/2011                                                          Page 1/6
 replied. He claims to be unemployed since his alleged termination and 
that he could not get job despite efforts. Hence the present claim was 
filed with prayer for reinstatement with full back wages, continuity in 
service and other consequential benefits.

2.             The   management   appeared   and   contested   the   claim   and 
filed detailed WS submitting therein that the services of the workman 
were never terminated rather he himself abandoned from job as he was 
a regular absentee and had taken all his dues and last drawn salary for 
the month of May 2010. Other allegations were refuted specifically and 
categorically.

3.             A rejoinder to the said WS was also filed by the workman 
wherein the contentions made in the claim were reinstated. From  the 
pleadings of the parties, the following issues were framed on 30.08.2011 
as under:­
       1.

Whether there existed any relationship of employee and employer between the claimant and the management? OPW

2. Whether the services of the workman were assigned through Asharfi Enterprises to Delhi Aviation fuel facility Pvt. Ltd. w.e.f. 1st July 2010, if so, to what effect. OPM

3. Whether the workman abandoned the duty on his own? OPM

4. Relief

4. In evidence, workman examined himself as WW1 and closed his evidence. Management also examined Sh. Asharfi Lal as MW1 and Sh. Raj Kumar as MW2 and closed its evidence.

5. I have gone through the written arguments filed by Shri P.L. Srivastava ­ Ld. AR for the workman and have heard the arguments LIR/D No. 971/2011 Page 2/6 advance by Sh. Ghanshyam, Ld. AR for the management.

My issue wise findings are as under:­ ISSUE NO. 1

6. The onus to prove this issue was upon the workman, however, since the management in its WS as well as in the affidavit of MW1 has admitted the relationship, no further finding is required. Hence, this issue is decided in favour of the workman and against the management.

7. The onus to prove this issue was upon the management. It was deposed by MW1 in his affidavit that the work place of the workman was handed over to a joint venture company namely Delhi Aviation Fuel Facility Pvt. Ltd. w.e.f. 01.7.2010 and as such the said company would be solely responsible for managing the employment of the workman and relied upon a letter dt. 26.4.2010 Mark A issued by Bharat Petroleum Corporation Ltd. The said letter has not been challenged by the workman during the cross­examination of MW1. It was also deposed that since the workman had already abandoned the job on 25.5.2010, therefore,the question of his employment being managed by the said joint venture company do not arise. Again there was no cross­examination of MW1 on this aspect. Since it is the case of both the workman and the management that the services of the workman came to an end w.e.f. 25.5.2010, the consequences of the place of work being taken over by the said company on 01.7.2010 is of no consequence. Hence, this issue is decided accordingly.

8. The onus to prove this issue was upon the management. It LIR/D No. 971/2011 Page 3/6 was alleged by the management that the workman had been a regular absentee without any intimation and lastly abandoned the job in May 2010 without information. It has also been alleged that due to the negligence and absence of the workman on duty a vehicle was damaged as it hit the entrance gate for which Rs. 60,000/­ i.e. The repairing cost of the vehicle, was recovered from the accounts of the management. The account statement of the management Ex.MW1/1 and photographs of the damaged part of the vehicle Mark 2(colly.) were relied upon. This fact was never challenged in the cross­examination by Ld. AR for workman.

9. The workman had claimed that he was not given the legal benefits including PF, however, in the cross­examination he admitted that though his main complaint was that he was not given the PF benefit but admitted that he was alloted a PF number and PF used to be deducted from his salary. He had also alleged that the management was adopting anti­labour practices which he described in his cross­examination to be the unpleasant language used by the proprietor of the management. He, however, admitted that he never complained about this till his alleged termination. He admitted his signatures at point X on Mark M1, i.e. The wages register for the month of May 2010 for having receiving the salary for the said period. Thus, the allegation that he has not paid the salary for April­May 2010 stands falsified.

10. It is also to be observed that according to the workman, his services were terminated on 25.5.2010 but the first demand letter was sent by him on 21.10.2010, that is to say, after a lapse of about five months and there is no explanation for this inordinate delay nor he ever alleged that during this period he ever approached the management for LIR/D No. 971/2011 Page 4/6 duties. The management has relied upon Mark 4 i.e. The PPF Withdrawal Certificate which was duly forwarded by it for enabling the workman to withdraw his PF wherein the reason for leaving service has been mentioned as "resigned". This document was also not challenged during cross­examination of MW1 and it shows that the workman resigned from the job and had also received his PF contribution. Even in the cross­examination of MW1 it was put to him if he had made any restrictions on the withdrawal of PF by the workman to which he replied in negative. MW1 also deposed that since he was not having the contract at present, he was unable to take back the workman in service. He further deposed that he had paid all the dues of the workman and nothing is payable towards him. There had been further no effective cross­examination of this witness. Ld. AR for the workman also agitated that the workman was made to do overtime without payment which fact was denied by MW1 and no document in this regard or any oral evidence of any co­worker was adduced.

11. Ld. AR for the management relied upon the judgment in G.T. Lad vs Chemicals and Fibres India Ltd. AIR 1979 SC 582 wherein it was held that "to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same. It was further held that whether there had been a voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstances of each case."

12. It is clear from the above facts and circumstances narrated herein above that it is not the case of termination of service by the management but of the workman having voluntarily left the job or having abandoned the job. Hence this issue is decided in favour of the LIR/D No. 971/2011 Page 5/6 management and against the workman.

13. Ld. ARW also relied upon the judgment in DTC vs Rajpal 190 (2012) DLT 378 Delhi. However, the facts of the said case have no applicability on the present claim. He also relied upon DTC vs Shyam Singh 190 (2012) DLT 91 Delhi which was a case on domestic inquiry and has nothing to do with the facts of the present case. He next relied upon Ram Narayan vs Management of M/s Delhi SCSC 139 (2007) DLT 193 Delhi and Harjinder Singh vs Punjab State Warehousing Corporation 1(2010) SLT 448 to show that if the workman had worked for more than 240 days, Section 25F of the ID Act have to be complied with. There is no dispute of the workman not having worked for more than 240 days but since it is a case of abandonment, the said judgments are also of no help to the workman.

ISSUE NO. 4/RELIEF

14. In view of the findings on issue no. 1 to 3, the workman is not entitled to any relief.

Claim accordingly stands answered. Copy of the award is accordingly sent for publication. Case file be consigned to record room. Announced in the open court on 28th Day of February 2013 (SANJAY SHARMA) PRESIDING OFFICER, LABOUR COURT­XIX KARKARDOOMA COURTS, DELHI LIR/D No. 971/2011 Page 6/6