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BEFORE THE COURT OF SH A.S. JAYACHANDRA
PO : LABOUR COURT : KKD : DELHI
DATE OF REFERENCE : 04.10.2001
DATE OF FILING : 06.10.2001
ARGUMENTS CONCLUDED ON: 04.08.09
AWARD MADE ON : 01.09.2009
ID No. 244/06/01
IN THE MATTER OF : -
M/s Rodex Rubber Factory
(ii)Black Stone Automobile Pvt. Ltd.
S-57, Badli Indl. Area, Delhi ...........Management
versus
Krantikari General Mazdoor Union
J-1413, Jahangirpuri
Delhi-33
(Rajender Master & 42 others) ................Workmen
AWARD
1.The Govt. of NCT of Delhi has made a reference bearing number F.24 (3528)/2001/Lab./22023-27 dated 04.10.2001, in the above matter and the terms of reference is as under :
Whether the services of workmen as per Annexure
-A have been terminated illegally and / or unjustifiably by the management, and if so, to what sum of money as monetary relief along with consequential benefits in terms of existing laws/Govt. notifications and to what other relief are they entitled and what directions are necessary in this respect ? 1/28
The names of the workmen as per Annexure A are as under :
S. No. Name Father's Name
1 S/Sh. Rajender Master S/Sh. Ramjatan Pd.
2 Radheshyam Kikli yadav
3 Ram Kailash Jag Bhagat
4 Ram Babu Khimanand
5 Shyam bahadur Bir Bahadur
6 Rajesh yadav Ramchander Yadav
7 Suresh Yadav Ramchander Yadav
8 Naresh Jha Lakshman Jha
9 Parmanand Pramod ..........................
10 Sohan Lal Ram Prasad
11 Naveen Jagannath Singh
12 Shankar Singh Mithila Singh
13 Bhola Singh Surajadev Singh
14 Barlister Singh Baburam Yadav
15 Harilal Ramsuraj Yadav
16 Anil Mishra Ramkalewar Mishra
17 Ganesh Mishra Ramkalewar Mishra
18 Ramvilash yadav Jaleshwar Yadav
19 Dinesh Chander Prasad
20 ArjunSingh Sohraihu Prasad
21 Raj Kumar Murari Desai
22 Jai Prakash Jmuna Prasad
23 Lal Yadav Krishna Mahato
24 Ranjan Ravinder
25 Babu Lal Hira Lal
26 Vasupal Hira Lal
27 Shivpujan Maurya Kharbhuj Maurya
2/28
S. No. Name Father's Name
28 Ashok Kumar Sone Lal
29 Sitaram Badri Yadav
30 Satpal Singh Hari Singh
31 Umesh Kumar Chaitu Dass
32 Satyendra Suryanath Pd.
33 Nirmal Kumar Suryanath Pd.
34 Nand Lal Mukh Lal
35 Ram Vinay Sharma Tipan Singh
36 Bhim Bahadur Thpa Dal Bahadur Thapa
37 Sajan Neeber
38 Upender Kumar Late Sh. balram Pd.
39 Harendra Kisum Sah
40 Uday Kumar Late Sh. Rajdev Ram
41 Kishan Bahadur Pahalman Beek
42 Kamal bahadur Khaman Bahadur
43 Abhilakh Chhotelal Prjapati
2. Case of the workmen :- Workmen contend that they
were working with the management upto the mark and there was no complaint. The workmen were not given the legal benefits. Names of 20 workmen were not entered into the registers. Therefore, they made a complaint to the Assistant Labour Commissioner on 24.07.2001, so that the names of 20 workmen are taken into the register.
3. On 25.07.2001, the workmen were not allowed to enter 3/28 into the factory and they were refused their duties by the management since the management was green eyed over the workmen for the complaint. Further, the management threatened the workmen that if they insisted to enter into the factory, they would be facing dire consequences. The workmen informed the Union leader of Krantikari General Mazdoor Union.
4. On the same day along with leader at 3 p.m., the workmen went to Samaipur Badli Police Station. The SHO and the SI manhandled the Union leaders, while the workmen were outside the police station. The management in connivance with the police coerced the workmen and the Union leaders to sign certain papers to fabricate that there has been no dispute. The same was immediately informed to various authorities. The matter was brought to the notice of the labour department. The management refused to take them back on duties. The workmen contended that all of them were removed illegally and unjustifiably from the duties w.e.f. 25.07.2001. The management had resorted to unfair labour practice and victimisation. The management has not followed Section 25-F of the ID Act. There was no misconduct by any of the workmen and no enquiry was held. The termination of the workmen is illegal. Therefore, the workmen had sought for reinstatement with full back wages and cost of litigation. 4/28
5. The case of the management in the amended written statement, which was allowed, in brief is as under :
a) the workmen remained absent w.e.f. 25.07.2001 inspite of personal messages, letters, show cause memos and charge sheet.
b) there was no relationship of employer and employee concerning the management and workmen Shiv Pujan, Ranjan, Upender , Rajesh, Babu Ram, Ram Bilas, Rajesh Yadav.
c) there is no management by name M/s Rodex Rubber Factory and the same is now known as M/s Black Stone Automobile Pvt. Ltd.
d) the workmen Bhola Singh, Harender, Navin, Arjun Singh, Dinesh, Rajender Master, Radhey Shyam, Suresh Yadav and Sita Ram, have settled their disputes with the management amicably U/s 18(1) of the ID Act.
e) the management is closed down w.e.f. 01.06.2006, due to unavoidable circumstances under the provision of Section 31(A) of the Air Prevention & Control of Pollution Act, 1981. According to the management, the date of the appointment and last drawn wages of the workmen are as under :
Name Status Date of Last wages
appointment (Rs.)
Rajender Asstt. Operator 01/07/96 2,693/-
5/28
Name Status Date of Last wages
appointment (Rs.)
Radheyshyam Operator 01/12/96 2,843/-
Ram Kailash Helper 01/12/96 2,424/-
Suresh Yadav Asstt. Operator 12/02/97 2,743/-
Naresh Operator 01/07/96 2,843/-
Parmanand Operator 01/06/96 2,843/-
Sohan Lal Asstt. Operator January, 1996 2,685/-
Naveen Helper Dec, 1994 2,419/-
Shanker Singh Helper 01/12/96 2,424/-
Bhola Singh Asstt. Operator 17.06.1995 2,585/-
Balister Singh Asstt. Operator 06/12/96 2,592/-
Anil Mishra Asstt. Operator 06/12/96 2,592/-
Ganesh Mishra Helper 01/12/96 2,424/-
Dinesh Asstt. Operator 01/07/96 2,585/-
Arjun Helper 01/07/96 2,422/-
Jai Prakash Asstt. Operator 01/12/96 2,592/-
Lal Dev Helper 01/12/96 2,419/-
Vasu Pal Helper 01/07/96 2,419/-
Ashok Kumar Helper 02/12/96 2,424/-
Sita Ram Helper 02/12/96 2,419/-
Satpal Singh Asstt. Operator May, 1992 2,793/-
Umesh Kumar Operator 01/07/96 2,847/-
Satender Helper 01/12/96 2,847/-
Nirmal Kumar Helper 01/12/96 2,424/-
Nand Lal Asstt. Operator 01/12/96 2,592/-
Ram Vinay Asstt. Operator 2,592/-
Sharma 01/12/96
Sajan Helper 01/07/96 2,422/-
Harender Helper 01/07/96 2,422/-
6/28
Name Status Date of Last wages
appointment (Rs.)
Udai Kumar Helper 01/12/96 2,422/-
Kishan Bahadur Helper 01/07/96 2,422/-
Abhilakh Asstt. Operator Dec., 1994 2,643/-
6. Management further contended that the Union leader Kanta Prasad was harassing the management, extorting the money from the management for the past four years and was collecting Rs. 3,500/- per month. On 25.07.2001, Kanta Prasad demanded Rs. 10,000/- per month to allow the factory to run and threatened the director of the management with dire consequences. The allegations in the claim statement are all denied. All the workmen on 25.07.2001, have abstained from duties at the behest of Kanta Prasad. The said person with 6 to 7 persons armed with iron rods had assaulted the director, squatted on the factory gate and threatened that unless the management pays the amount of Rs. 10,000/- per month, he would not allow the management to run the factory. The management informed the police who shifted them to the police station. The management denies that Union leader was beaten up by the SHO and the SI and further denies that no coercion was brought on the workers to sign the blank papers. The management was following all the labour statutes. The names of the employees who were working were kept on the 7/28 registers. The workmen had made baseless allegations in the claim statement. The workmen simply followed Kanta Prasad. There was no employer employee relationship between the management number 2 and Shyam Bahadur, Hari Lal, Raj Kumar, Babu Lal, Bhim Bahadur Thapa, Kamal Bahadur, Shiv Poojan, Rajan, Upender, Rajneesh Yadav, Babu Ram and Ram Bilas. The other workmen deserted the work since 25.07.2001. It is contended that the workmen are not entitled for any relief and the management seeks for dismissal of the claim.
7. Rejoinder is filed by the workmen denying the allegations found in the written statement. It is contended by the workmen that the workmen Shiv Poojan and Ors. are the employees and they have been working since 8 to 10 years.
8. Based on the pleadings, my Ld. Predecessor had framed the following five issues as under :
1) Whether workmen Rajender, Radhey Shyam, Ram Kailash, Suresh Yadav, Naresh, Sohan Lal, Naveen, Shankar Singh, Bhola Singh, Balister Singh, Anil Mishra, Ganesh Mishra, Dinesh, Arjun, Jai Prakash, Lal Dev, Vasu Pal, Ashok Kumar, Sita Ram, Satpal Singh, Umesh Kumar, Satender, Nirmal Kumar, Nand Lal, Ram Vinay Sharma, Sajan, Harender, Udai Kumar, Kishan Bahadur, Abhilakh themselves started absenting from duty w.e.f. 25.07.2001 and did not join the duty desite personal messages and letters, show cause memos and charge sheet sent to them ? If so ? Its effect ? OPM.
2) Whether there existed relationship of employees and employer between the workmen Shiv Pujan, Ranjan, Upender, Baboo Ram, Rajesh, Ram Bilas and Rajesh Yadav ? If 8/28 so, its effect ? OPW.
3) Whether the workmen Bhola Singh, Harender, Navin, Arjun Singh, Dinesh, Rajender, Master Radhey Shyam, Suresh Yadav and Sita Ram, settled their dispute amicably with the management /s 18(1) of the Industrial Disputes Act, which constitutes a settlement as engrafted U/s 2 (p) of the said Act ? If so, its effect ? OPM
4) Whether the name of Rodex Rubber Factory has been converted as M/s Black Stone Automobiles Pvt. Ltd. ? If so, its effect ? OPM
5) As per terms of reference.
9. To vindicate their claims on the either side, the workmen had examined 14 witnesses on their side. On behalf of the management, MW 1 Surjeet Singh, is examined and the evidence is closed.
10. During the course of arguments, it is argued on behalf of the workmen that a) factory is not closed b) management had conceded to the visit of Labour Inspector and that there is an FIR c) that the management did not appear before the conciliation authorities
d) management was not in the habit of issuing appointment letters and reflecting the names of the employees in the attendance register e) 30 employees were appointed only at the intervention of the labour department in the year 1996, the documents relied by the management are all fabricated and lastly that the management has not issued any notice or letters calling upon the workmen to join the 9/28 duties. The AR for the workmen urges that the workmen are entitled for all the reliefs as claimed.
11. AR for the management argued that there is no relationship with regard to some of the employees and the management is closed down w.e.f. 01.06.2006. He further argues that many employees have left on their own and that the workmen had not established their case on merits. Lengthy written argument is also filed by the management. Perused the same. Heard the Ld. AR.
12. With the available oral and documentary evidence, I am to answer the issues as under.
13. ISSUE NUMBER 1 : This issue concerns the abdication of duties and absence of the workmen from duties w.e.f. 25.07.2001. The onus to prove this issue is on the management. Management contended that workmen Rajender, Radhey Shyam, Ram Kailash, Suresh Yadav, Naresh, Sohan Lal, Naveen, Shankar Singh, Bhola Singh, Balister Singh, Anil Mishra, Ganesh Mishra, Dinesh, Arjun, Jai Prakash, Lal Dev, Vasu Pal, Ashok Kumar, Sita Ram, Satpal Singh, Umesh Kumar, Satender, Nirmal Kumar, Nand Lal, Ram Vinay Sharma, Sajan, Harender, Udai Kumar, Kishan Bahadur, Abhilakh have remained absent despite letters w.e.f 25.07.2001.
14. It is to be noted that only 14 workmen, namely, Abhilakh 10/28 (WW 1), Anil Mishra (WW 2), WW 3 (Nand Lal), Jai Prakash (WW 4), Umesh Kumar (WW 5), Udai Kumar (WW 6), Ram Kailash (WW 7), Shankar Singh (WW 8), Ganesh Mishra (WW 9), Ashok Kumar (WW 10), Upender (WW 11-not concerning issue number 1), Sohan Lal (WW 12), Satpal Singh (WW 13), Ram Vinay Sharma (WW 14) are examined on behalf of the workmen. Except Upender (WW 11), all the other workmen examined are alleged to have remained absent w.e.f. 25.07.2001, despite notices. The case of the management in the written arguments also is that the management has been constantly advising the absentee workers to resume the duties through several letters, sent to the Labour department and also as urged in the pleadings before the conciliation officer. The management did not terminate the services of these employees. The management did not obstruct them from joining the duties.
15. I have perused the evidence recorded in this case. The evidence of all the workmen are identical and stereo type. They have filed their affidavits. In the evidence of Abhilakh, WW 1 which is at Ex. WW 1/A, he claims having worked for 10 years. It is his contention that on 25.07.2001, the management did not allow him into the factory. All the other workmen examined in this case in their affidavits have similarly stated so in para 4 of their affidavits. The onus on issue 11/28 number 1 being on management number 1, examined MW 1. MW 1 in his affidavit at Ex. MW 1/A deposed that the workmen were not terminated on 25.07.2001. In fact on 25.07.2001, there was a strike. At para 15 of the affidavit, he deposes that the workmen were asked to join the duties by a letter dated 26.07.2001, Ex. MW 1/6 directing all the workmen to resume their duties. Ex. MW 1/6 is produced on record. This is addressed to 31 who are all covered under issue number 1. The said letter is issued at the C/o address of the Union. In the said letter, it is demanded by the authorised signatory of the management number 2 asking the workmen to join the duties. Ex. MW 1/7 is the postal receipt. Ex. MW 1/8 is the letter addressed to the Labour Commissioner informing them that the workmen have stopped reporting to come to the duties and the indulgence of the Labour Commissioner is sought. The same is bearing the seal of the office of the Labour Commissioner. Ex. MW 1/11 dated 14.08.2001, it is stated that the absentee workers had refused to receive the wages. The same is addressed to the Labour Commissioner. While cross-examining MW 1, the workmen got elicited that the management has no record to prove that the Union leaders were collecting the money from the management. He also admits that the Labour Inspector had lodged a criminal complaint against the management. MW 1 also admits that an 12/28 accident took place in the month of November, 2007 and one workman by name Om Prakash, sustained injuries. As regards the present workmen, witness admits that the management has not conducted any enquiry with regard to the unauthorised absence. MW 1 is the director of the management number 2. This witness denies a suggestion that the management had not offered employment to the workmen before any authority.
16. From the documentary evidence produced by the MW 1, apart from the joint letter addressed to the workmen at the address of the Union, the management had also issued separate notices to the workman which are addressed to all the workmen, at the union address. MW 1 in his affidavit at para 33 deposed that he sent a charge sheet dated 09.12.2004, at Ex. MW 1/57 to each individual worker vide postal receipts Ex. MW 1/58 to 1/70 seeking an explanation for unauthorised absence. I have perused Ex. MW 1/57. This is a joint charge sheet issued against all the workmen and the postal receipts are also produced bearing the date as 09.12.2004. However, I find that Ex. MW 1/21, before the conciliation Officer S.P. Singh, the management addressed a letter to the said authority asking the labour department to persuade the workmen to resume the duties. Ex. MW 1/22 and 23 are the postal receipts. Likewise, in the pleadings 13/28 before the conciliation officer at Ex. MW 1/23A, the management had also sought for the workmen to join the duties which was sent by a registered post. Ex. MW 1/27 is the written statement filed by the management before the conciliation officer wherein it is reiterated that the absentee workers did not resume their duty and that their services were not terminated. The same is dated NIL. I also find that Ex. MW 1/39 dated 09.01.2002, Ex. MW 1/41 dated 24.09.2002, Ex. MW 1/43 dated 27.12.2002, Ex. MW 1/45 dated 15.02.2003, Ex. MW 1/47 dated 24.05.2003, Ex. MW 1/49 dated 15.03.2004, Ex. MW 1/51 dated 27.12.2003, Ex. MW 1/53 dated 18.09.2003, Ex. MW 1/55 dated 18.06.2004, Ex. MW 1/57 dated 09.12.2004 are all addressed to the workmen in issue number 1 at their C/o address of the Union asking them to resume the duties immediately. These letters are supported by the postal receipts sent individually also to the workmen at Ex. MW 1/58 to 69. The workmen had not cross-examined MW 1 on these documents.
17. At the same time, it is to be seen that the management's responsibility does not cease by writing a letter addressed to the Union. Under what circumstances, these letters have not been individually addressed to the workmen at their residences is not forthcoming.
14/28
The management having not sent the letters and the charge sheet to the workmen at their residential address, the charge sheet can not be treated as the service on each individual workman, since it is addressed at the C/o address of the Union. The effect of such improper service is dealt while answering issue number 5. However, it is clear from the documentary evidence that the workmen have not attended the duties from 25.07.2001, despite messages. The effect of the same and the attendant circumstances are dealt in the succeeding part herein while the answering to issue number 5. Thus, issue number 1 is answered accordingly.
18. ISSUE NUMBER 2 : In this issue, I am to answer whether there exists the relationship of employer and employee between the management and the workmen Shiv Pujan, Ranjan, Upender, Baboo Ram, Rajesh, Ram Bilas and Rajesh Yadav. Out of these workmen, except Upender S/o Balram Prasad, no other workmen is examined. Upender is examined as WW 11. In his affidavit at Ex. WW 11/A, he had deposed that he had been working with the management for the past 9 years. He relied on two documents Ex. WW 11/1, the ESI card and Ex. WW 11/2 the postal correspondence. In the cross-examination, he admits that the ESI card is issued by M/s Okay Engineering where he was working. He also admits that he never 15/28 worked with the managements 1 and 2. Therefore, the case of the workmen Upender S/o Balram Prasad, nowhere stands. WW 11 had utterly failed to establish the relationship. Likewise, the other workmen Shiv Pujan, Ranjan, Baboo Ram, Rajesh, Ram Bilas and Rajesh Yadav, having not led any evidence, they can not be held as employees of the management numbers 1 and 2. Thus, issue number 2 stands answered in favour of the management and against the workmen.
19. ISSUE NUMBER 3 : The management having contended that the workmen Bhola Singh, Harender, Navin, Arjun Singh, Dinesh, Rajender, Master Radhey Shyam, Suresh Yadav and Sita Ram, have settled their matters amicably with the management is required to prove the same and the onus is on the management. I have perused the evidence of MW 1. This witness in his affidavit at Ex. MW 1/A had stated that the above names workers have settled their disputes with the managements. The true copies of the settlements are at Ex. MW 1/77 to 1/82. I perused the document at Ex. MW 1/72, this is a letter addressed to the Labour Commissioner dated 15.07.2006, copies of which were marked to ESIC, PF Commissioners and the Inspector of Factories. The postal receipts are at Exs. MW 1/73 to 76. Ex. MW 1/77 is the settlement deed between workman Navin and the management number 2. There is a receipt of Rs. 20,000/- towards full and final 16/28 settlement. It is the settlement U/s 18(1) of the Industrial Disputes Act. Ex. MW 1/78 is the settlement entered with Harender, for a sum of Rs. 17,000/-. Ex. MW 1/79 is the settlement entered with Rajender for a sum of Rs. 20,000/-. Ex. MW 1/80 is the settlement entered with Suresh Yadav, for a sum of Rs. 16,000/-. Ex. MW 1/81 is the settlement entered with Radhey Shyam, for a sum of Rs. 20,000/-. Ex. MW 1/82 is the settlement entered with Dinesh Prasad, for a sum of Rs. 20,000/-. Ex. MW 1/83 is the settlement entered with Sita Ram, for a total sum not mentioned but as having paid bonus and leave wages. Ex. MW 1/84 is the settlement entered with Arjun Kumar Singh, for a sum of Rs. 18,000/-.
20. Out of these workmen, no one had come into the witness box to controvert the say of MW 1. They remained unexamined. However, I have perused the evidence of MW 1 who was cross- examined at length. A suggestion was made to the witness that no payments were done before the Labour Inspector which was denied by the witness. In the absence of the denial by the each individual workmen against whom the management contends that there was a settlement, it becomes difficult to disbelieve the statement of MW 1 and the documentary evidence produced by MW 1. It was argued by the workmen that the management have fabricated the documents. I 17/28 see no sound logic to hold that the documents are fabricated by the management. Hence, issue number 3 is held in favour of the management and against the workmen.
21. ISSUE NUMBER 4 : The management in its amended written statement had contended at para 3 of the preliminary objections that M/s Rodex Rubbery Factory had changed its name and constitution as M/s Black Stone Automobiles Pvt. Ltd. In the rejoinder, the workman denied this fact for want of knowledge. They contend that it is an unfair labour practice on the part of the management. While signing the written statement also, the Director had mentioned that the Black Stone Automobiles Pvt. Ltd. was formerly known as M/s Rodex Rubber Factory. Apart from the pleadings, the management has not led any evidence by producing the certificate of incorporation or the resolutions of the earlier company. Hence, this issue is answered in the negative. The effect of the same would be discussed in the succeeding issue.
22. ISSUE NUMBER 5 : From the discussion at issue number 1 and issue number 2 all the workmen examined except Upender, being the employees of management number 2 have not attended the duties from 25.07.2001. The circumstances under which they remained absent is to be looked from the pleadings and the evidence 18/28 led. MW 1 in his evidence concedes that there was an accident in the factory during November, 2007 in which one worker Om Prakash, was injured. MW 1 also admits that the Labour Inspector had lodged a criminal complaint against the management and the matter is pending before the Ld. MM.
23. From the written arguments filed by the management, it is rightly suggested that 'a question would arise as why a workman would raise an industrial dispute if he had voluntarily left the services and still make a claim. The management argues that the matter is to be looked from the Union activities and the attitude of some of the union leaders who would catch hold of some workmen and make illegal demands.
24. The question posed by the management is not only to be looked into from the points suggested but also from the pleadings. It is from the pleadings that one can make out that there was some altercation between the union leaders and the management concerning 20 workers having not been reflected in the registers and the workmen were not allowed inside the factory on 25.07.2001. The evidence of workmen are alike in this aspect. WW 1 had produced certain documents which are Mark A to Mark T. Only the photocopies of these documents are produced on record. They are not proved on 19/28 record. From the cross-examination of MW 1 which I have already discussed at the cost of repetition, it is to be stated that MW 1 admits having not produced the appointment letter of any of the employee. MW 1 also admitted that he has no records to prove that the union leaders were demanding from the management. MW 1 further admits that the labour Inspector had lodged a criminal complaint against the management. It is also forthcoming that one worker was injured in November, 2007 and that there was no enquiry, which is nothing to do with the present case. From the evidence of MW 1 who admits as mentioned above, it is clear that there were some discrepancies in keeping the registers of the workmen and issuing the proper appointment letters. This must have led to the collective bargaining by the employees. There is no evidence that the union leader was being paid any ransom to buy peace. Therefore, it is clear that the workmen struck the work. No doubt the conciliation had taken place, which failed.
25. It is also clear from the evidence that the workmen did not report to the duties. The management relied on Tejpal vs. Gopal Narain LLR 2006 P. 1142 Del. to urge that declining relief to the workman alleging illegal termination but not reporting duty is justified. Reliance is also placed on the point by urging the ruling of Sonal 20/28 Garments vs. Trimbak Shankar Karve LLR 2003 P. 5 Bom. & also the rule of Competition Printing Press vs. Shriut Jai Prakash Singh LLR 2001 P. 768 Bom. These are all the rulings where the workman had willfully absented despite repeated communication. In the instant case as discussed by me at issue number 1, the management had not sent the individual communications at the residential addresses of the workmen. The case of the workmen is to be understood who were making collective bargaining through the Union. The management had served the notices only on the Union. For making collective bargaining, the process involves considerable length of time, by which time it can not be expected that all the workmen will be in constant touch with the Union so as to respond to the notices issued by the management. The non-issuance of the notices at the residential addresses and issue of notice only through the Union can not be treated as a proper service of communication. Therefore, the rulings urged by the management are distinguishable on facts. Viewed from this point, the notices can not be treated as proper service and therefore, the workmen who had expectations in the collective bargaining expected some settlement which could not emerge. Their absence from duties is thus to be understood, since management clearly admits that there was a strike on 25.07.2001. 21/28
26. Though there is no termination even today on record, in the wake of the circumstances whereby the workmen did not attend the duties, the termination can not be termed illegal or unjustified since there is no such termination on record.
27. As there is no termination, now I am to see whether the workmen can be directed to be reinstated into service. In the written statement, at para 5 of the preliminary objections, it is stated that the management closed down its activities from 01.06.2006 and disconnection of power. The same is testified at para 38 of Ex. MW 1/A. The workmen cross-examined MW 1 and got elicited that there was an accident in the factory. Thus, the workmen argued that the factory is still in existence. The management argued that this was a stranded incident in which the accident occurred while removing the machinery after closure.
28. The management relied on J. K. Hosiery Factory vs. Labour Appellate Tribunal AIR 1956 ALL P. 498 to urge that if a person is compelled to carry on a particular trade or business, it affects his right to carry on any other trade or business and that no person can be debarred from disposing his property or from practicing any profession. Further, reliance is placed on Workmen of Indian Leaf Tobaccoo Co. vs. Management of Indian Leaf Tobacco Co. AIR 22/28 1970 SC 860 to urge that even a reference U/s 10(d) of the Act, can interfere with the discretion exercised by the company in closing down its business. No court has power to issue orders to the company to reopen the closed business. Further it was urged that the ruling in the matter of Indian Metal and Metallurgical Corporation vs. Industrial Tribunal AIR 1953 Mad. 98 on the same point.
29. In the instant case, it is brought on evidence by the management that the management closed its business in the affidavit of MW 1. I have perused the cross-examination of MW 2. There is no suggestion that the factory is still running. On the other hand, WW 4 and WW 5 in the cross-examination admits that the factory of the management is closed at present. WW 1 and 2 in their cross- examination by the management do not know if the factory of the management is closed w.e.f. 01.06.2006. From the evidence, I have no hesitation to conclude that the factory is closed down w.e.f. 01.06.2006 as admitted by one of the workmen. Hence, no reinstatement is possible with respect to both the managements as they are one and the same as pleaded by the workmen. Hence, the findings on issue number 4 has no bearing in this aspect.
30. There being no chance of ordering reinstatement, I will have to find out the compensation payable to each of the workmen. 23/28 From the evidence, the following details emerge with regard to the service of the each of the workmen & compensation that may be ordered to the contesting workmen in lieu of the denial of the duties in the background of the management having closed down its business.
Name Status Service Compensation
counted arrived at
WW 1 Abhilakh Asstt. Operator 01/07/96 as per 2,643/- admitted
the WS but by the
suggested date management.
by the Hence,
management as compensation
13.12.1994 eligible is Rs.
18,501/-.
WW2 Anil Mishra Asstt. Operator 06/12/96 2,643/- admitted
admitted by the by the
workman management.
Hence,
compensation
eligible is Rs.
14,537/-.
WW 3 Nand Lal Asstt. Operator 01/12/96 (no 2,592/- admitted
documents by the
produced by the management.
workman, Hence,
suggested by compensation
the eligible is Rs.
management 14,256/-
WW 4 Jai Asstt. Operator 2,592/- admitted
Prakash by the
management.
Hence,
compensation
eligible is Rs.
01/12/96 14,256/-
24/28
Name Status Service Compensation
counted arrived at
WW 5 Umesh Operator 2,847/-
Kumar (admitted by the
management)
since no salary
slip is produced
by workman.
Hence,
compensation
01/07/96 Rs. 15,658/-.
WW 6 Udai Helper 01/12/96 (since 2,424/- admitted
Kumar unable to by the
produce management.
evidence for Hence,
correct date of compensation
joining prior to eligible is Rs.
1996) 13,332.
WW 7 Ram Helper 01/12/96 (since 2,424/- admitted
Kailash unable to by the
produce management.
evidence for Hence,
correct date of compensation
joining prior to eligible is Rs.
1996) 13,332.
WW 8 Shanker Helper 01/12/96 (since 2,424/- admitted
Singh unable to by the
produce management.
evidence for Hence,
correct date of compensation
joining prior to eligible is Rs.
1996) 13,332.
WW 9 Ganesh Helper 01/12/96 (since 2,424/- admitted
Mishra unable to by the
produce management.
evidence for Hence,
correct date of compensation
joining prior to eligible is Rs.
1996) 13,332.
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Name Status Service Compensation
counted arrived at
WW 10 Ashok Helper 02/12/96 (since 2,424/- admitted
Kumar unable to by the
produce management.
evidence for Hence,
correct date of compensation
joining prior to eligible is Rs.
1996) 13,332.
WW 11 Upender ------------ ---------- claim dismissed
for no
relationship.
WW 12 Sohan Asstt. Operator January, 1996 2,685/- admitted
Lal (since unable to by the
produce management.
evidence for No documents
correct date of by the workman
joining prior to for salary.
1996) Hence,
compensation
eligible is Rs.
14,768/-.
WW 13 Satpal Asstt. Operator 22.05.1992 (as 2,793/- admitted
Singh per ESI card) by the
management.
No documents
by the workman
for salary.
Hence,
compensation
eligible is Rs.
22,344/-.
WW 14 Ram Asstt. Operator 01.07.96 (as 2,592/- admitted
Vinay Sharma per ESI card) by the
management.
Hence,
compensation
eligible is Rs.
15,552/-
26/28
31. Considering the peculiarity of the facts of this case and the law laid down in Rajasthan Lalitkala Academy vs. Radhey Shyam, 2008 III LLJ 562 and UP Electricity Board vs. Laxmi Kant Gupta, 2009 LLR Page 1, I find that this is not a case where the back wages can be awarded. I have already calculated the compensation payable to each of the workman.
32. For the aforesaid reasons, I pass the following :
AWARD The claim of WW 11 Upender, stands dismissed since he is not the employee of the managements 1 and 2.
The claims of the workmen Rajender Master, Radheyshyam, Ram Babu, Shyam Bahadur, Rajesh Yadav, Suresh Yadav, Naresh Jha, Parmanand Prasad, Naveen, Bhola Singh, Balister Singh, Hari Lal, Ram Bilas Yadavm, Dinesh, Arjun Singh, Raj Kumar, Lal Dev, Ranjan, Babu Lal, Vasu Pal, Shiv Pujan Mauraya, Sita Ram, Satendera, Nirmal Kumar, Bhim Bahadur Thapa, Sajan, Harendera, Kishan Bahadur, and Kamal Bahadur stands dismissed for no evidence on behalf of the above workmen.
I award the compensation as calculated above payable to the workmen named as above towards the compensation in lieu of reinstatement. Reinstatement not ordered.
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The management is directed to pay the above amounts to each of the workmen named in the table within 30 days from the date of publication of this award, failing which, the management shall also be liable to pay interest @ 12 % p.a., from the date of award till realisation.
The reference is answered accordingly.
Copies of the award be sent to the appropriate government for publication.
File be consigned to record room.
1st September, 2009 (A.S. JAYACHANDRA) PO : LABOUR COURT - XVII, DELHI 28/28