Delhi High Court
Kapsons Worldwide vs Joint Labour Commissioner & Anr. on 9 February, 2022
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:12.02.2022
08:35:24
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 9th February, 2022
+ W.P.(C) 904/2022 & CM APPL.2563/2022
KAPSONS WORLDWIDE ..... Petitioner
Through: Mr. Anil Kumar Hajelay, Ms. Anjani
Choudhary and Mr. Anant Kumar
Hajelay, Advocates. (M:9810134489
& 9910985431)
versus
JOINT LABOUR COMMISSIONER & ANR. ..... Respondents
Through: Mr. Anjum Javed, ASC, GNCTD
with Mr. Devendra Kumar, Advocate.
(M:9999596970)
Mr. Mahesh Srivastava, Advocate for
R-2.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J.(Oral)
1. This hearing has been done through video conferencing.
2. The present petition has been filed challenging the impugned order
dated 1st October, 2019 in No.F.24(152)/Ref/SWD/19/Lab/12111-13 by
which the terms of reference have been framed by the Joint Labour
Commissioner, and the matter has been referred for adjudication.
3. The grievance of the Petitioner/Management in the present case was
that the Management was facing severe harassment at the hands of the
concerned Joint Labour Commissioner, and the representatives of the
Management were being ill-treated. The stand of Management is that the
manner in which the terms of reference have been framed is not proper.
There are certain factual conclusions that the terms of reference itself
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:12.02.2022
08:35:24
contains, which ought to have been left open for adjudication before the
concerned Labour Court. The existence of a factory, establishment and
office at the place or the address of transfer has already been pre-decided in
the terms of reference and the manner in which the same has been worded.
4. Mr. Hajelay, ld. Counsel appearing for the Management submits that
the concerned Joint Labour Commissioner would make the representatives
appearing on behalf of the Management wait for long durations from 10:30
a.m. to 5:30 p.m. Further, proper accommodation for filing of reply was also
not being given and intemperate language was being used against the
representatives of the Management. Thus, the overall grievance of the
Management in this case is that the proceedings were held in a very
unpleasant atmosphere.
5. On the other hand, Mr. Mahesh Srivastava, ld. Counsel appearing for
the Workmen submits that all the issues would have to be adjudicated by the
concerned Labour Court after leading evidence in the matter, and there is no
pre-concluded issue in the terms of reference which was framed.
6. A perusal of the list of dates of the petition shows that the employees
are stated to have been transferred from Delhi to Noida, vide letter dated 20th
April, 2019, with a direction to them to report on duty on 22nd April, 2019.
The Labour Inspector issued notice dated 22nd April, 2019, and the
complaint was made to the Joint Labour Commissioner. The hearing was
fixed on 25th April, 2019. Reply was to be filed by the Management within
one day, and the matter was adjourned to 26th April 2019. Reply was filed
by the Management on 26th April 2019. On 26th April, 2019, after a lengthy
hearing, the Labour Officer has found the reply to be vague and notice for
appearance in-person was issued on the same date, directing the
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:12.02.2022
08:35:24
Management to file a response by 30th April, 2019. On 29th April, 2019, a
response was sent by the Management. A second show cause notice was
again issued to the Management on 2nd May, 2019. On 6th May, 2019, the
Management is stated to have sent its HR Manager to seek time for
submitting explanation to the second show cause notice. However,
according to the Management, he was unfairly treated and intemperate
language was used by the Joint Labour Commissioner. The Management's
written explanation was then submitted on 28 th May, 2019, and show cause
notice was again served on 5th July, 2019. The officials and representatives
of the Management continued to appear before the Joint Labour
Commissioner, but the proprietor's personal appearance was insisted upon.
Ld. Counsel for the Petitioner raises questions in view of the manner in
which the proceedings were being conducted.
7. On the last date i.e., 14th January, 2022, considering the submissions
made on behalf of the Management, Mr. Anjum Javed, ld. ASC for GNCTD
was requested to accept notice, and to seek instructions in the matter. A
direction was also issued on the said date to the concerned Joint Labour
Commissioner- M.K. Gaur to join the proceedings virtually.
8. Today, Mr. Javed, ld. Counsel has informed the Court that Mr. M.K.
Gaur has superannuated, with effect from 20th September, 2021. He, further,
submits that he has taken note of the matter, and has sensitised the new
Labour Commissioner in respect of the treatment meted out to parties and
their representatives/advocates.
9. On merits, as recorded above, the basic grievance of the Workmen is
that they were transferred from Mayapuri, Delhi to the Noida establishment
of the Management. The conciliation proceedings have failed post which the
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:12.02.2022
08:35:24
terms of reference which have been framed are as under:
"Whether the alleged termination/ denial of duties
without giving proper notice to the workmen Sh.
Uma Shankar Bhagat (Age-48) S/o Dinanath
Bhagat & 59 Other workmen (As per enclosed
annexure 'A') under the garb of order/ notice of
transfer from C-74 A, Mayapuri Industrial Area,
Phase-III, Delhi to D-33, Sector 63, Noida (U.P.)
by the Management of M/s Kapsons Worldwide,
especially when there exit no factory/
establishment/ office of this management at the
place/address of transfer, is legal and justified and
if so, to what relief an individual workman in this
dispute are entitled and what directions are
necessary in this regard?"
10. A perusal of the terms of reference framed in this matter shows that
the same is not very happily worded. This Court is of the opinion that the
question as to whether any factory, establishment or office of the
Management exists at a particular address or not is a factual issue that would
have to be determined after evidence is led before the Labour Court. The
terms of reference seek to suggest as though the non-existence of the factory
or office is an admitted fact, when it is not.
11. Accordingly, on all the issues in respect of the challenge to the
transfer/termination, the Labour Court shall frame the issues for
adjudication. The Management and the Workmen shall be given adequate
opportunity to file their respective pleadings and lead proper evidence in the
matter. After the evidence is led by the parties, the Labour Court would
adjudicate the issues which arise in the reference. The wording of the
reference would not, in any manner, bind the Labour Court or conclude any
issue which may arise for adjudication, and the same shall be independently
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:12.02.2022
08:35:24
adjudicated by the Labour Court.
12. Needless to add, in conciliation or other proceedings under the
Industrial Disputes Act, 1947 or any other enactments which are for the
purpose of safeguarding the interests of the Workmen, the concerned
officials are expected to maintain a cordial atmosphere between the
Workmen and the Management, and not to mete out any ill-treatment to
their representatives, so as to ensure that such allegations do not arise in
future.
13. Let Mr. Javed, ld. ASC communicate the present order to the
concerned Conciliation Officers and the Labour Commissioners under the
GNCTD.
14. With these observations, the present petition, along with all pending
applications, is disposed of.
PRATHIBA M. SINGH
JUDGE
FEBRUARY 9, 2022
dj/ad
