[CASE NUMBER] 1 IN THE COURT OF SH. S.K. KAUSHIK, ADDITIONAL DISTRICT & SESSIONS JUDGE PRESIDING OFFICER LABOUR COURT NO. XII, KARKARDOOMA COURTS, DELHI [CASE NUMBER] INDUSTRIAL DISPUTE BETWEEN Sh. [ENTITY] & 55 Others C/o Industrial Engineering Mazdoor Union, 2094/5 D, Prem Nagar, New Railway Phatak, New Delhi - 110008 Workmen AND M/s Natraj Impex, 1236, Kapashera, Delhi - 110037 Management Date of institution : 17.02.1997 Date of argument : 17.08.2009 Date of award : 31.08.2009 AWARD 1. An Industrial Dispute between the management of M/s Natraj Impex, 1236, Kapashera, Delhi - 110037 and Sh. [ENTITY], [ENTITY], [CASE NUMBER] 2 [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] - I, [ENTITY], [ENTITY], [ENTITY], [ENTITY]., [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], Bhagirah, [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] C/o Industrial Engineering Mazdoor Union, 2094/5 D, Prem Nagar, New Railway Phatak, New Delhi - 110008, claiming to be it's workmen, was referred by Secretary (Labour), Government of National Capital Territory of Delhi for adjudication in exercise of powers conferred by [SECTION] and [SECTION] of the [ACT] (in short Act) vide his Order No. F.24 (159)/1997-Lab./42[SECTION]29 dated 03.02.1997 with the following terms of reference: [CASE NUMBER] 3 "Whether the persons mentioned in Annexure A are workmen of M/s Natraj Impex and if so whether their services have been terminated illegally and / or unjustifiably by the management and if so, to what relief are they entitled and what directions are necessary in this respect?" 2. Notice of the reference was issued to the workmen. President of the union Sh. [ENTITY] filed joint statement of claim of all the 56 workmen alleging that they were in the employment of the management as per details of their service in para 1 of the joint statement of claim. It is alleged that the respondent was running its establishment in the name of
M/s Natraj Impex at 1236, Kapashera, New Delhi for the last several years and approximately 200 workers were working there; that prior to that management was running its establishment in the name of M/s Vishal Inter National Export at 2[SECTION], Guruhar Kishan Nagar, Paschim Vihar, Piragarhi, New Delhi which was transferred to 1236, Kapashera, New Delhi and management started running both these establishments at 1236, Kapashera, New Delhi due to which number of employees of both these establishments became more than 200; that premises at 1236, Kapashera, New Delhi was having three doors and management was running these establishments by stealing the electricity; that vigilance department of DESU conducted a raid due to which DESU disconnected the electricity of the management; that during this raid, DESU put names of some of the contesting workmen as witness after taking photographs; that management continued its business with the help of two generators one of which was of 60 kwh and another was of 18 kwh and movement of the workmen was restricted through two gates; that management was keeping attendance register on these two gates for marking the attendance of the workmen; that management was providing only an attendance card to the workmen and it did not provide any statutory benefit like appointment letter, identity card, wages slip, leave book, ESI, bonus; that management was violating the provisions of [ACT] as it did not pay wages through wages register but it was paying them wages by handing over their monthly wages in a closed envelop which used to be handed over to the workmen at the factory gate at the time of leaving the factory; that workmen orally protested to the illegal activities to which management did not pay any heed; that workmen made complaint on 13.9.1996 and 26.9.1996 to the Assistant Labour Commissioner, Karampura, upon which labour department took action and served notice on the management on 19.9.1996; that when labour inspectors took legal action against the management then with revengeful attitude service of the workmen was terminated by the management in violation of [SECTION] and [SECTION] [ACT] as workmen from serial no.1 to 16 were illegally terminated on 18.9.1996, workmen at serial no.17 to 33 were illegally terminated from service on [SECTION].9.1996 and workmen at serial no. 34 to 56 were illegally terminated from service on 27.9.1996; that management did not pay earned wages of August 1996; that a complaint was made to the Assistant Labour Commissioner in pursuance of which a labour inspector talked to the management and directed the management to produce its record but management did not produce the record and also did not reinstate the workmen due to which labour inspector gave his report no.711 dated 27.9.1996 stating that the management had admitted them as its workmen but refused to reinstate them and also did not produce the record; that a claim was filed before conciliation officer but due to adamant attitude of the management conciliation proceedings failed; that since then they are unemployed and could not get any service despite their best efforts and their families are on the verge of starvation; that management committed flagrant violation of [SECTION] of [ACT]. It is claimed that workmen are entitled to reinstatement with continuity of service and full back wages.
3. Management contested the claim by filing written statement through its partner Sh. [ENTITY]. By way of preliminary objections management stated that applicants are not its workmen as defined by [SECTION] [ACT] as they were never in the employment of management and so there did not exist a relationship of employer and employee between the parties. On merits it is alleged that applicants whose names are mentioned in annexure were not in the employment of the management. It is stated that management started its factory in April 1994 and total number of employees were always less than 20 and this fact was verified by the labour department also. It is alleged that it has no concern with M/s Vishal Exports/Vishal International. Management denied each and every claim of the claimants and alleged that the claim is false. It is stated that the management is strictly complying with the statutory requirements. Management accordingly prayed for dismissal of the claim.
4. In the rejoinder to the written statement, workmen controverted the averments as contained in the written statement and reaffirmed the averments as stated in their joint statement of claim.
5. From the pleadings following issues were framed for trial :
1. Whether the claimants are not the workmen of the management?
2. As per terms of reference.
6. Both parties were directed to lead evidence by way of affidavit. [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] s/o [ENTITY], [ENTITY], [ENTITY] and [ENTITY] filed their respective affidavit which they tendered in evidence. All of them relied upon eighty nine documents Ex.WW1/1 to Ex. WW1/89. All of them except [ENTITY] (WW17) were cross examined by AR for the management.
7. WW17 [ENTITY] S/o [ENTITY] did not appear for cross examination despite several opportunities given by Ld. Precedeur and accordingly the Ld. Predecessor closed the opportunity of this workman to tender himself for crossexamination. Workman [ENTITY] filed his affidavit but he never appeared for tendering the same in evidence as well as for crossexamination. Thus, now only 18 workmen are the contesting workmen.
8. Management filed the affidavit of Ex. MW1/A of it's partner MW1 Sh. [ENTITY] who relied upon eleven documents Ex. RW1/1 to RW1/11. He was crossexamined by AR for the workmen.
9. I have heard authorized representatives of the parties and have gone through the record. Findings on the issues are as under:
10. This issue was framed because claimants have claimed to be the employees of the management whereas management has alleged that claimants were not it's employees. Settled law is that it is for the claimant to establish the relationship of employer and employee. First coming to the case of WW1 [ENTITY]. In para 2 of the affidavit he has deposed that management did not issue appointment letter, identity card, leave book, wages slip. He has also deposed that wages were not being paid through wages register and ESI, PF and bonus was not being paid. In para 5 of the affidavit it is deposed that his employer was not providing any statutory benefit except that he was keeping a register at the gate and was issuing attendance card photocopy of which is Ex.WW1/17 as one attendance card somehow remained with him. In para 6 he has deposed that during his employment he received letter Ex.WW2/29.
11. He has deposed in para 4 of his affidavit that his employer was committing theft of electricity due to which a raid was conducted by vigilance department in which the employer was found committing electricity theft and at that time vigilance department had taken photographs and one of those photographs was given to the workers which is Ex.WW1/1. In para 7 he has deposed that there were approximately 200 workers but despite that they were unable to complete the pending work and so management took one premises on rent at 34, Navada Extension, Kiran Garden, Uttam Nagar, New Delhi59 and transferred some workers over there and for that management put up a notice on the notice board photocopy of which is Ex.WW4/38 (A and B). In para 8 of his affidavit he has deposed that some workers apprehended that the employer started the second unit for breaking their unity and so some workers on 6.7.1996 at about 6 pm contacted the management and at that time workers were performing overtime and some workers got the attendance register kept at the gate photographed and photocopy of the attendance register entries from April 1996 to July 1996 are Ex.WW5/39 to WW5/42. In para 9 he has deposed that his employer used to send goods through challan and finding that workers were not satisfied with the conduct of the employer and so they retained photocopies of these challans which are Ex.WW6/43A to WW6/43D. In para 11 he has deposed that a complaint was made against the employer to the labour department on the basis of which officers of labour department took action against the management photocopy of which is Ex.WW7/51. In para 12 of the affidavit WW1 [ENTITY] has deposed that on 27.9.1996 a complaint was made to the labour department on the basis of which labour inspector accompanied the workers for their reinstatement and in presence of the labour inspector the employer admitted the workers to be his employees but refused to reinstate and also did not pay the unpaid earned wages about which labour inspector submitted his report to the union photocopy of which is Ex.WW7/57. In para 14 he has deposed that on the basis of the complaint of the union, labour department took action against the management in which proceedings were initiated against the management in the court of the Metropolitan Magistrate which stands confirmed by the document Ex.WW7/86.
12. This witness was crossexamined a length. During cross examination WW1 [ENTITY] deposed that he did not have documents such as appointment letter, identity card, wage slip, attendance card to prove his appointment. He deposed that Ex.WW1/17 bears the signatures of the supervisor Mr. [ENTITY]. He denied the suggestion that he had forged the attendance card Ex.WW1/17. He denied that there was no supervisor in the company by the name [ENTITY]. He deposed that there was no transfer letter issued in his name transferring him from Kapashera to 34, Navada Extension and deposed that it was an oral order. He denied the suggestion that at the time of his termination he was working in 34, Navada Extension. He admitted that all the 16 workers from serial no. 1 to 16 of the statement of claim filed a complaint before labour inspector stating that they were working at 34, Navada Extension. He denied that M/s Natraj Impex had no factory at 34, Navada Extension. He denied that he filed complaint before labour inspector about his illegal termination by M/s [ENTITY] Fabrications on 19.9.1996. He denied that at 34, Navada Extension, M/s [ENTITY] Fabrications was in operation which was owned by Mr. [ENTITY]. He deposed that he did not have the negative of Ex.WW1/1. He also deposed that he was in this photograph Ex.WW1/1. He stated that he did not know who signed Ex.WW6/43A to WW6/43D. He denied that there was no supervisor by the name of [ENTITY] and that Mr. [ENTITY] was proprietor of M/s [ENTITY] Fabricators.
13. A careful perusal of crossexamination of WW1 [ENTITY] shows that AR for the management did not challenge the deposition of this claimant in his affidavit that the photograph Ex.WW1/1 was of the factory of M/s Natraj Impex, 1236, Kapashera, Delhi and that this photograph was taken by the vigilance team of DESU during their raid in the premise of M/s Natraj Impex and in this photograph this workman is appearing as a worker of the management. AR for the management did not counter the deposition of WW1 [ENTITY] pertaining to this photograph even through a suitable suggestion to the contrary. Thus, this photograph Ex.WW1/1 is a very significant material which shows that claimant [ENTITY] was an employee of the management. AR for the management submitted that this photograph cannot be taken into consideration as its negative has not been produced. He also submitted that workmen have not proved any appointment letter nor they have proved any reliable document in support of their claim of being employee of the management and so this photograph does not help in any manner. I have considered this contention. In view of this submission of AR for the management relevant point for consideration is whether this photographs Ex. WW1/1 can be taken into consideration. Here it is useful to refer to the judgment reported as Food Corporation of India Workers Union Vs. The Food Corporation of India and Another:
1996 (74) FLR 1893 (SC). In this Judgment the Apex Court at page no.
1901 observed as under:
" The approach made by the Tribunal, even in the matter of marshalling or considering the material placed before it, seems to be wrong for the following reasons. The Tribunal was apparently of the view, that there should be "evidence" to prove the facts, as per the provisions of the [ACT]. It is not so. The Tribunal is not a Court. There should be only 'material' and not evidence as required by the [ACT] "
14. So far as the contention of AR of the management that claimants have failed to prove any appointment letter or any reliable document in support of their claim of being workmen of the management is concerned, it is also useful to refer to the judgment reported as [PRECEDENT], wherein Their Lordships in Para 20 of the judgment observed as under:
"The standards and nature of tests to be applied for finding out the existence of Master and Servant relationship cannot be confined to or concretised into fixed formula(s) for universal application, invariably in all class or category of cases. Though some common standards can be devised, the mere availability of anyone or more or their absence in a given case cannot be itself be held to be decisive of the whole issue, since it may depend upon each to case and the peculiar device adopted by the employer to get his needs fulfilled without rendering him liable. That being the position, in order to safeguard the welfare of the workmen, the veil may have to be pierced to get at the realities. Therefore, it would be not only impossible but also not desirable to lay down abstract principles or rules to serve as a ready reckoner for all situations and thereby attempt to compartmentalise and peg them into any pigeonhole formulas, to be insisted upon as proof of such relationship. This would only help to perpetuate practising unfair labour practices than rendering substantial justice to the class of persons who are invariably exploited on account of their inability to dictate terms relating to conditions of their service." (Emphasis supplied in bold)
15. In view of the observation of the Apex Court in the hereinabove referred judgment, I hold that the claim of these claimants of being the employees of management cannot be dismissed summarily merely because they have not produced any appointment letter or any other document.
16. Now adverting to crossexamination of WW1 [ENTITY]. From the deposition of this workman during his crossexamination it is clear that AR for the management did not challenge his deposition that the documents Ex.WW5/39 to WW5/42 were the photocopies of the attendance register kept by the management at the gate. AR for the management also did not challenge the deposition that the labour inspector gave his report Ex.WW7/57 and that labour department took action against the management as per document Ex.WW7/57 and that criminal proceedings were initiated against the management before the Metropolitan Magistrate. AR for the management also did not challenge the deposition of WW1 [ENTITY] that the management transferred some workers to 34, Navada Extension, Kiran Garden, Uttam Nagar vide notice Ex.WW4/38 (A & B) put up on the notice board. Deposition of WW1 [ENTITY] that he received a letter during his employment with the management photocopy of which is Ex.WW2/29 was also not challenged. This unchallenged testimony of this workman shows that he personally received the letter Ex.WW2/29 at the address of the management on being delivered by the postman. When management was not having any relationship of employer and employee with this claimant then onus of adducing evidence shifted on to the management to rebut the onus that came on to it on the basis of the presence of the workman in the photograph Ex.WW1/1 and on the basis of the letter Ex.WW2/29 deposed to have been delivered to him personally in the premises of the management. There is no such rebuttal evidence of the management.
17. The notice Ex.WW4/38 (A&B), which was not challenged by AR for the management during crossexamination of WW1 or any other workman, reads that it is a notice dated 28.6.1996 put up by the employer under his signatures with rubber seal of M/s Natraj Impex stating that the workers mentioned in Annexure A of this notice shall start reporting for duty w.e.f. 1.7.1996 at 34, Navada Extension, Kiran Garden, Uttam Nagar. Annexure A to this notice carries 33 names under signatures of the employer with rubber seal of M/s Natraj Impex. Name of claimant [ENTITY] is at serial number 10 of Annexure A.
18. AR for the management submitted that this document does not help the claimants in establishing their relationship of employer and employee because this document has not been proved to be of M/s Natraj Impex and it has also not been proved that the signatures on the notice and the Annexure A to the notice both collectively Ex.WW4/38 (A&B) are of Sh.[ENTITY] partner of the management. AR for the workmen submitted that if signatures on these documents are compared with the admitted signatures of MW1 Sh. [ENTITY] then it would be crystal clear that these signatures are of MW1 Sh. [ENTITY] and this court is competent enough to compare signatures on these documents with the admitted signatures of MW1 Sh. [ENTITY]. I have carefully considered the rival contentions. It is significant to note that MW1 Sh.[ENTITY] in his affidavit Ex.MW1/A did not depose that the notice and the Annexure A to the notice which are collectively Ex.WW4/38 (A&B) do not bear his signatures and that these documents were not issued by him under his signatures with the rubber stamp of M/s Natraj Impex. Thus management witness did not dispute both these documents first by not challenging these documents during cross examination of the workmen and then by not disowning these documents in his affidavit Ex.MW1/A. Under [SECTION] of the [ACT], a court is competent to compare the disputed signatures with the admitted signatures and the court has to take upon itself the responsibility of comparing the disputed signatures with that of the admitted signatures or handwritings in the interest of justice. In the judgement reported as [PRECEDENT] Their Lordships observed in para 12 of the judgement as under: The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. [SECTION] of the [ACT] expressly enables the court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary.
There may be cases where both sides call experts and the voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the court. Where there is none, the court will have to seek guidance from some authoritative textbook and the court's own experience and knowledge. But discharge it must, it's plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar and Fakhruddin v.
State of Madhya Pradesh were cases where the court itself compared the writings.
19. Considering that the management has not disputed the documents Ex.WW4/38 (A & B) and workmen have relied upon this document in support of their claim of being the employees of the management, I hold that before relying upon documents Ex.WW4/38 (A & B), it is necessary for this court to compare the signatures on these documents with the admitted signatures of Sh. [ENTITY] on his affidavit Ex. MW1/A and other admitted signatures on record and in view of the judgment of the Apex Court in [PRECEDENT]'s case (supra), I hold that this comparison of the signatures stated to be of Sh. [ENTITY] by AR for the workmen on the document Ex.WW4/38 (A&B), but disputed by AR for the management, with his admitted signatures on his affidavit Ex.MW1/A and on the evidence sheets has to be undertaken by this court. Accordingly, I have carefully compared the signatures on these documents Ex. WW4/38 (A & B) with the admitted signatures of Sh.[ENTITY] on his affidavit Ex. MW1/A and other admitted signatures on record. On the basis of the comparison of these signatures on documents Ex. WW4/38 (A & B) with the admitted signatures of MW1 Sh. [ENTITY] I hold that the author of signatures on the document Ex.WW4/38 (A&B) is MW1 Sh. [ENTITY]. I therefore hold that the document Ex.WW4/38 (A&B) is a document of M/s Natraj Impex. Since Sh. [ENTITY] was the partner of M/s Natraj Impex and so I hold that from this document it stands established that claimants [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] alongwith [SECTION] other workers as mentioned in the annexure A to the documents Ex. WW 4/38 (A+B), were the employees of the management of M/s Natraj Impex as on 28.06.96, the date of issue of this document, who were directed to report for duty from 01.07.96 at 34 Navada extension Kiran Garden, Uttam Nagar, New Delhi. From this document it also stands established that unit working at 34 Navada extension Kiran Garden, Uttam Nagar, New Delhi was the unit under the control and supervision of the management of M/s Natraj Impex.
20. Suggestion of AR for the management given to WW1 [ENTITY] during crossexamination is that at the time of his termination he was working in 34, Navada Extension. Claimant [ENTITY] denied this suggestion but from this suggestion of the management it stands established that management is admitting this claimant to be an employee of the unit functioning at 34, Navada Extension. As discussed in the foregoing para unit working at 34 Navada extension Kiran Garden, Uttam Nagar, New Delhi was the unit under the control and supervision of the management of M/s Natraj Impex. Thus it appears that claimant [ENTITY] was an employee of the management of M/s Natraj Impex.
21. Now coming to the case of remaining 17 contesting workmen. It is to be noted that deposition of all these contesting workmen in their respective affidavit tendered in evidence is the same as that of WW1 [ENTITY] and AR for the management crossexamined all these workmen on the same pattern, as that of WW1 [ENTITY] which has been discussed in detail in foregoing paragraphs. Thus reproduction of the deposition of all these remaining workmen in their respective affidavit as well as discussion/appreciation of their crossexamination would be nothing but repetition of what has already been discussed while appreciating the deposition of WW1 [ENTITY] is his affidavit and crossexamination. Further, crossexamination of all these workmen is the same and appreciation and discussion of the deposition of one of these remaining workmen would hold good for all of them and so with a view to avoid repetition, I proceed to discuss deposition of WW3 [ENTITY] taking it as a sample of the intrinsic worth of the testimony of all these remaining 17 workmen pertaining to their claim of employees of the management.
22. During crossexamination WW3 [ENTITY] deposed that he had worked at 34, Navada Extension and then at 1236, Kapashera, New Delhi. He stated that no transfer letter was given to him for transfer from Navada address to Kapashera address. He deposed that M/s Natraj Impex was functioning at 1236, Kapashera, New Delhi and there was no company of M/s Natraj Impex at 34, Navada Extension. He deposed that Ex.WW3/35 was received by him at the address mentioned in this letter. Testimony of all other workmen is similar to that of [ENTITY].
23. As discussed in the foregoing para unit functioning at 34 Navada extension Kiran Garden, Uttam Nagar, New Delhi was the unit under the control and supervision of the management of M/s Natraj Impex. Thus it appears that the remaining contesting workmen including WW3 [ENTITY] were also the employees of the management.
24. Before proceeding further one submission of AR for management needs to be discussed. He submitted that these workers do not have any reliable document like appointment letter in support of their claim of being the employee of M/s Natraj Impex. I have carefully considered this contention. There can be no dispute with the proposition that a claimant can produce his appointment letter only when management has issued the same. From the deposition of MW1 Sh. [ENTITY] it appears that the management of M/s Natraj Impex was not taking any application and was not issuing any appointment letter because during crossexamination MW1 deposed that they used to employ the workers even without application for job. He also deposed that no appointment letter was being issued at the time of appointment. He stated that no PF was being deducted as PF was not applicable to his company. When management was not issuing the appointment letters to its workers then obviously it is very difficult for the claimant to establish his claim of being an employee through appointment letter. Even if a management has not issued any appointment letter and it is also not issuing any such document which can be used by a workman to prove his claim of the employee of the management, still the workman has no option but to accept whatever has come his way as he has to maintain his living. This hard reality of the life was taken note of by their Lordships of Rajesthan High Court in the judgment reported as The [PRECEDENT] wherein at page 541 it was observed as under:
"It is appropriate to take cognizance of the fact that the employee is always in a disadvantageous position visavis the employer. He is not in a position to dictate the terms of employment qua the employer. It is the sweet - will of the employee to engage a workman on the terms and conditions which suit the employer."
[SECTION]. Now adverting to the evidence of the management. MW1 in his affidavit has deposed that they were maintaining the records including the attendance and wages register in respect of all the employees who were working with them and these records were checked by various authorities including the labour department. He has deposed that photocopy of the attendance register from June 1994 to July 1996 is Ex.RW1/4 (104 pages) and photocopy of the attendance register for August 1996 and September 1996 is Ex.RW1/5 and photocopy of the wages register from August 1996 to September 1996 is Ex.RW1/6. It is deposed that names of the applicants whose names are mentioned in the Annexure (to the reference) do not appear in the records and had they worked with the respondent management their names must have been in these records. In view of this deposition of MW1 regarding the record produced before this court, the point for consideration is whether the record of the management inspires any confidence. A careful perusal of the page no.92 of attendance register cum wages register Ex.RW1/4 shows that this page carries the attendance entries and date of payment of wages entry of Sh. [ENTITY], helper, for the month of September 1996. According to these entries [ENTITY] was paid his wages of September 1996 on 7.10.1996. Page no.100 of Ex.RW1/4 is the entry of [ENTITY] for the month of October 1996. Entries of this page show that [ENTITY] was absent on 7.10.1996 which means that he could not have been paid his wages of September 1996 on 7.10.1996 as on that day he was absent. Similar is the case of the entries of Smt. [ENTITY] for the month of August 1995 at page no.40 and her entries for September 1995 at page no.43 because as per entry on page 40 Smt. [ENTITY] was paid her salary on 7.9.1995 but as per entries at page 43 she was absent on 7.9.1995. Similar is the case of the entries of Mrs. [ENTITY] for the month of August 1995 at page no.41 and her entries for September 1995 at page no.44 because as per entry on page 41 Mrs. [ENTITY] was paid her salary of August 1995 on 7.9.1995 but as per entries at page 44 she was absent on 7.9.1995. Similar is the case of workman [ENTITY]. His entries for October 1995 on the left side of page no.48 of Ex.RW1/4 show that he was paid his salary of October 1995 on 6.11.1995 but as per entries at page 50 he was absent on 6.11.1995. All these entries create a serious doubt on the genuineness and authencity of the attendancecum wages payment record of the management produced before this court. Had this record been maintained in the usual course of the business of the management then all these discrepancies pointed out as above would not have occurred. In my considered view all this record was prepared subsequently and this record is nothing but a forged and fabricated record of the management. I am fortified in my conclusion from the fact that left side of page 83 of Ex.RW1/4 shows that the entries at this page are of [ENTITY] for the month of August 1996 but the year has been written as 196 instead of 1996. It appears that this mistake in writing the year as 196 and other discrepancies pointed out as above occurred perhaps for the reason that all these 104 pages of Ex.RW1/4 were prepared in one go. In my considered view Sh. [ENTITY] partner of the management has intentionally tried to mislead this court by producing this forged and fabricated record. Accordingly I hold that if testimony of MW1 in para 5 of his affidavit, that management was maintaining the records including the attendance and wages registers in respect of all the employees who were working with them, is to be believed then obvious conclusion is that management has deliberately withheld the correct record from the court. Under these facts and circumstances I draw an inference that had the management produced its record of employees maintained during the usual course of the business of the management then that record would have proved that all these contesting claimants were the workmen of the management. In my considered view MW1 Sh. [ENTITY] intentionally gave false evidence pertaining to the attendance and wages payment record Ex.RW1/4 and prima facie he appears to have committed an offence punishable U/[SECTION] [ACT] for which action can be taken against him U/[SECTION] [ACT]
26. In para 7 MW1 deposed that applicant filed a case against M/s [ENTITY] Fabricators, 34, Navada Extension, Kiran Garden, before filing the case against the present management, a copy of the notice dated 13.9.1996 sent by the labour inspector to M/s [ENTITY] Fabricators regarding production of the record pertaining to alleged termination of services of [ENTITY] and payment of wages to [ENTITY] & others is Ex.RW1/8 which clearly shows that applicants were in the employment of M/s [ENTITY] Fabricators.
27. A careful perusal of the notice Ex.RW1/8 shows that this notice was delivered by labour inspector to the management of M/s [ENTITY] Fabricators by hand on 13.9.1996. If the management of M/s Natraj Impex had no relation or connection with the management of M/s [ENTITY] Fabricators then how the management of M/s Natraj Impex came in possession of this notice, is not explained. Rather from the fact that the notice served upon M/s [ENTITY] Fabricators is possessed by the management of M/s Natraj Impex, it appears that the management of M/s Natraj Impex had business relations/dealings with the management of M/s [ENTITY] Fabricators at 34, Navada Extn. Kiran Garden, Uttam Nagar, New Delhi. This discussion also shows as to why the management of M/s Natraj Impex had issued the transfer order dated 28.6.1996 Ex.WW4/38 (A&B) whereby it transferred 33 workmen to 34, Navada Extn. Kiran Garden, Uttam Nagar, New Delhi. In my considered view this deposition of MW1 in para 7 of this affidavit does not help the management in proving that M/s [ENTITY] Fabricators was an independent entity having no business relation with the management of M/s Natraj Impex.
28. MW1 has also deposed in para 7 that documents Ex.WW6/43A to WW6/43D are forged and were never issued by the management. In fact these documents are the photocopies of the challans whereby the management of M/s Natraj Impex, 1236, Kapashera, sent some goods to its unit at 34, Navada Extn. Kiran Garden, Uttam Nagar. The workmen have relied upon these photocopies to show that the management of M/s Natraj Impex was in fact having its business activities at 34, Navada Extn. Kiran Garden, Uttam Nagar and they had retained the photocopies of these challans with them because workers were not satisfied with the conduct of the management. As observed in the foregoing paragraphs every contesting workman has deposed about this fact in his affidavit and AR for management failed to elicit any material on record which could create any doubt on the deposition of the workmen pertaining to the documents Ex.WW6/43A to WW6/43D. In fact these documents despite being photocopies constitute a material in support of the claim of the workmen. I therefore hold that from this deposition of MW1 in para 7 of his affidavit about these documents it does not stand established that these are forged documents.
29. In view of the foregoing discussion I hold that its stands established that all the 18 contesting workmen named as above were the employees of the management of M/s Natraj Impex, 1236, Kapashera, New Delhi. Accordingly, this issues is decided in favour of these contesting workmen and against the management.
30. This issue is as per terms of reference. Terms of reference are whether the workmen named in Annexure A are workmen of M/s Natraj Impex and whether their services were terminated illegally and/or unjustifiably. Thus this issue is in two part. The first part regarding existence of relationship of employer and employee between the parties has already been decided while deciding issue no. 1 in favour of the workmen. Thus what remains to be decided now is the second part of the reference.
31. All the 18 contesting workmen have alleged termination of their service by the management whereas management has denied this claim by alleging that these claimants were not the workmen of this management. Thus, the obvious conclusion that there is no reason to disbelieve the testimony of these 18 contesting workmen that their service was terminated by the management. These workmen have also alleged that termination of their service was in violation of [SECTION] and [SECTION] [ACT] and they were not even paid their earned wages by the management. I have no reason to disbelieve the deposition of these contesting workmen in their respective affidavits. Accordingly I hold that it stands established that the service of these 18 contesting workmen was terminated illegally. This issue stands decided accordingly in favour of these 18 contesting workmen.
RELIEF
32. When termination of service of a workmen is held illegal then point for consideration is as to what relief is to be granted to the workmen. Relief of reinstatement can be granted only when the management is continuing its business. In para 9 MW1 deposed that they have closed their factory permanently w.e.f. 1.4.2002 and sent the information to ESI department on 10.4.2002. In my considered view there is no reason to disbelieve this deposition of MW1 in para 9 of his affidavit. I therefore hold that under these facts and circumstances award of compensation in lieu of reinstatement and back wages would be the just and appropriate relief. Now point for consideration is as to what amount of compensation would meet the ends of justice.
33. Workmen have alleged termination of their service in 1996. MW1 has deposed that business of the management was closed permanently w.e.f. 1.4.2002. When it stands established that service of these contesting 18 workmen was terminated illegally then they have to be deemed to be in the continuous service of the management till the closure of the business i.e. till 31.3.2002. Thus the amount of compensation has to be determined by taking that all these 18 contesting workmen would have continued earning wages till 31.3.2002. In that event each of these contesting workmen would have earned wages atleast for next about five years and three months and the at the time of the closure of the business they would have also received the closure compensation from the management. Taking into account all these factors, I hold that award of Rs.70,000/ (Rs. Seventy Thousand only) as compensation in lieu of reinstatement and back wages would meet the ends of justice. Accordingly I award a compensation of Rs.70,000/ (Rs. Seventy Thousand only) to each of these 18 contesting workmen namely [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] s/o [ENTITY], [ENTITY], [ENTITY]. Management is directed to pay the compensation amount within three months of the award becoming enforceable failing which workmen shall be entitled to recover the amount of the compensation with interest @ 9% per annum from the date of award.
34. Remaining 38 workmen did not lead evidence in support of their claim as observed in the foregoing paragraphs. Accordingly a presumption is raised that no dispute subsists between these remaining 38 workmen and the management. Accordingly a no dispute award is passed in respect of these remaining 38 workmen.
35. Award stands passed as per the foregoing findings on the issues and reference stands answered accordingly.
36. Copy of the award be sent to learned Secretary (Labour) Government of National Capital Territory of Delhi for necessary action. The award be also sent to server (www.delhicourts.nic.in). The file be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 31 DAY OF AUGUST 2009 st [ENTITY] Presiding Officer Labour Court No. XII, Karkardooma Courts, Delhi.