M/S MIEUX HOMECARE SOLUTIONS PVT. LTD. vs YOGESH KUMAR
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of order: 1st May, 2024
+ W.P.(C) 5457/2024, CM APPL. 22531/2024 & CM APPL. 22532/2024
M/S MIEUX HOMECARE SOLUTIONS PVT. LTD. ….. Petitioner
Through: Mr. Sanjeev, Advocate.
versus
YOGESH KUMAR ….. Respondent
Through: Appearance not given.
CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
CHANDRA DHARI SINGH, J (Oral)
1. The instant petition has been filed on behalf of the petitioner under Article 226 of the Constitution of India seeking setting aside of the impugned Order dated 9th June, 2023, passed by the learned Authority under the Delhi Shops & Establishment Act, 1954, North-West District, Delhi in Case bearing No. S&E/67/NW/19/1430-32.
2. The relevant facts leading to the filing of the instant petition are as under:
a) The petitioner herein i.e., M/s Mieux Homecare Solutions Pvt. Ltd. (petitioner entity hereinafter) is a company registered with the registrar of companies, National Capital Territory of Delhi and Haryana. The respondent workman was working at the post of Senior Sales Officer (Modern Trade) with the petitioner entity since 22nd October, 2017, at last drawn monthly salary @ Rs.45,000/-.
b) It is stated that on 14th June, 2018, the respondent, resigned from the services of the petitioner entity by sending a WhatsApp message. Thereafter, on 21st January, 2019, the respondent sent a legal demand notice to the petitioner entity seeking payment of pending earned wages amounting to Rs.1,35,000/- for the period 1st October, 2018 to 31st December, 2018, to which no reply was ever received.
c) Pursuant to the above, on 11th February, 2019, the respondent filed an application under Section 21(2) of the Delhi Shops & Establishment Act, 1954 (the Act hereinafter) before the Authority under the Delhi Shops & Establishment Act, 1954, North-West District, Delhi, alleging that the petitioner entity has illegally withheld the wages of the respondent for the aforementioned period.
d) Thereafter, on 27th February, 2019, the learned Authority issued summons to the petitioner entity with directions to appear before it and file written statement. Pursuant to which, the petitioner entity appeared before the learned Authority and filed its written statement on 27th May, 2019. Subsequently, upon completion of pleadings the learned Authority under the Act framed the following issues:
I. Whether claimant has worked with respondent during the claim period and if so to what amount of earned wages is he entitled? What directions are necessary in this regard?
II. Relief if any?
e) In the aforesaid dispute, the learned Authority passed the impugned Order dated 9th June, 2023, in favor of the respondent workman and against the petitioner entity, thereby, directing the petitioner entity to make the payments in favor of the respondent workman, i.e., earned wages amounting to Rs.1,35,000/-; imposed a fine of Rs.100/- as per Section 21(3) of the Act along with a fine of Rs.5,000/- (fine was imposed on 10th April, 2023).
f) Being aggrieved by the aforementioned impugned Order, the petitioner entity has approached this Court seeking setting aside of the same.
3. Learned counsel appearing on behalf of the petitioner entity submitted that the impugned Order being bad in law is liable to be set aside since the same has been passed without taking into consideration the entire facts and circumstances of the matter.
4. It is submitted that the learned Authority failed to take into consideration the cross-examination of WW-1, as per which it is an admitted position that the respondent had tendered his resignation on 14th June, 2018, to the petitioner entity via a WhatsApp message and also that the salary up till September, 2018 has been duly received by him.
5. It is further submitted that it is an admitted fact by the respondent workman that he himself tendered his resignation on 14th June, 2018 thus, the question of accrual of wages does not arise as the wages sought by the respondent pertain to the period i.e., October to December, 2018, when he was not in the service of the petitioner entity.
6. It is submitted that the learned Authority wrongfully placed reliance upon Ex.WW1/4 which is the copy of an outstanding invoice receiving slip as the respondent workman, in his cross-examination, categorically admitted that the said exhibit did not bear the stamp of the management.
7. It is submitted that the impugned Order is liable to be set aside as the learned Authority failed to take into consideration that the respondent has failed to comply with the settled position of law, i.e., all the electronic documents must be proved with a certificate under Section 65-B of the Indian Evidence, Act, 1872.
8. It is submitted that the learned Authority erred in passing the impugned Order against the directors of the petitioner entity as it is a settled position of law that a director of a private limited company has no personal liability since a company is a separate legal entity. To substantiate the same the learned counsel for the petitioner entity has relied upon the judgment of the Honble Supreme Court in Employee State Insurance Corporation Chandigarh v. Gurdial Singh and Ors, AIR 1991 SC 1741.
9. Therefore, in view of the foregoing submissions, it is submitted that the instant petition may be allowed, and the reliefs be granted as prayed for.
10. Heard the learned counsel for the petitioner entity and perused the record.
11. At the outset, it is imperative to understand the scope of a Writ Courts jurisdiction in interfering with labour or workman disputes. The Honble Supreme Court in a catena of cases has reiterated time and again that the learned Court below is the final Court of fact in the disputes between the labour or workman and employer or an industry.
12. In this backdrop, this Court deems it imperative to briefly reiterate the scope of a Writ Courts jurisdiction under Article 226 of the Constitution of India in interfering with findings of the Court below qua the following circumstances. Firstly, a High Court shall exercise its writ jurisdiction sparingly and shall act in a supervisory capacity and not adjudicate upon matters as an appellate court. Secondly, in matters wherein the Court below adjudicated after having gone in the details of both fact and law while carefully adducing the evidence placed on record, the High Court shall not exercise its writ jurisdiction to interfere with the award when prima facie the court can conclude that no error of law has occurred. Thirdly, judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case. The reasoning must be cogent and convincing. Fourthly, a High Court shall intervene with the order/award passed by a Court below only in cases where there is a gross violation of the rights of the petitioner and the conclusion of the Courts below is perverse. A mere irregularity which does not substantially affect the cause of the petitioner shall not be a ground for the court to intervene with the order passed by the concerned court. Fifthly, if the Court observes that there has been a gross violation of the principles of natural justice. Lastly, the punishment imposed can be challenged on the ground of violation of doctrine of proportionality.
13. The petitioner entity has approached this Court seeking setting aside the findings of the learned Authority under the Delhi Shops & Establishment Act, 1954, passed vide the impugned Order dated 9th June, 2023, therefore, before delving into the averments advanced by the learned counsel for the petitioner entity, this Court deems it imperative to analyze the findings of the impugned Order and ascertain the reasoning afforded by the learned Authority. The relevant paragraphs of the impugned Order are reproduced herein below:
..6.? ?The claimant filed evidence by way of affidavit exbt. WW1/A alongwith documents i.e. copy of appointment letter marked as WW1/1, copy of demand notice dated 21.01.2019 exbt. WW1/2, copy of postal receipt of demand notice exbt. WW1/3, copy of outstanding invoice receiving slip (colly) exbt. WW1/4, copy of whatsapp chats (colly) marked as WW1/5, copy of salary of the promoters (colly) marked as WW1/6, copy of cheques (colly) marked as WW1/7. Statement of claimant was also recorded. He was also cross examined by Sh. Sanjeev Kumar, Counsel of respondent. During cross examination claimant stated that I was posted as Senior Sales Officer in the management (Modern Trade). The management paid my salary till September 2018. It is correct that I have resigned by sending whatsapp message to the management on 14.06.2018 which is exbt. WW1/MW1. Vol. Persons from respondent namely Sh. Pawan, Sh. Tarun and Sh. Subhash called me in the evening and asked me to join the management again. On the same day management increased my salary to Rs.5,000/ p.m. It is correct that management has not issued any document in this respect it is also correct that the increment of salary is not mentioned in my appointment letter. It is correct that in Para No.3, I have wrongly mentioned that management did not provide me appointment letter. It is correct that WW1/4 collectively does not bear the stamp of the management It is wrong to suggest that I have forged and fabricated the document exbt. WW1/4 though I have signed these documents. It is correct that the outstanding invoice slip dated 23.10.2018 exbt. WW1/4 (colly) has correction at Mark ‘A’. It is wrong to suggest that the correction has been made by me. The outstanding invoice slip dated 03.07.2018 exbt. WW1/4 (colly) has correction in the name at Point B. The correction is made by one Ms. Sahnaz. Another outstanding invoice slip dated 03.07.2018 exbt. WW1/4 (colly) has correction in the name at Point C and also in the date at Point D. It is correct that the document mark WW1/6 does not bear the signature and stamp of the management. It is wrong to suggest that I have filed forged and fabricated document mark WW1/6 to claim my salary with the management. It is correct that the documents mark WW1/7 does not bear the stamp and signature of the management. It is wrong to suggest that I have not worked with the management after June 2018. It is correct that 30 days notice before vacating the job is not mentioned in the appointment letter issued by management. It is wrong to suggest that I have filed false claim against the management to extort the money. It is wrong to suggest that I am deposing falsely.
7. Respondent also filed evidence by way of affidavit through Sh. Tarun Goel, Director.
8. Despite providing ample opportunities respondent failed to appear for his cross examination. Respondent was provided again opportunity subject to cost of Rs.5,000/- but respondent again failed to appear and pay the cost hence his right to cross be examined by claimant was closed.
9.? ?On the above issues my findings are as under:-
Issue No. 1
The respondent filed evidence by way of affidavit through its Director Sh. Tarun Goel. The respondent also filed copy of whatsapp message print exbt. MW1/1 vide which the claimant stated to be resigned on 14.06.2018. The claimant has also filed copies of outstanding invoice slips for the month of July 2018 to October 2018 in which the name of employee has been shown as Sh. Yogesh and the said invoice duly stamped and signed. Also the claimant has filed copies of whatsapp message prints dated 30.11.2018 in which the claimant Sh. Yogesh Kumar has sent message i.e. “pls. send your sale reports to Mr. Tarun or Mr. Subhsash from tomorrow. Pls. kal se apni sale reports Tarun Sir ya Subhash Sir ko bhejna. Regards Yogesh Kumar”. Also the claimant has filed documents i.e. salary of North Zone for the month of October 2018 and November 2018 which used to be prepared by the claimant as employee of the respondent. The respondent filed evidence by way of affidavit but did not appear for their cross examination. The respondent has nowhere denied the said documents filed by the claimant by way of evidence. Hence the documents filed by the claimant have been proved to be genuine and able to prove that he has worked during the period for which he has filed claim for claiming earned wages. Hence I am of the opinion that the claimant has worked with the respondent during the period of claim and the respondent has not paid his earned wages for the said period.
Accordingly issue No.1 is decided in favour of claimant and against the respondent.
Issue No.2
Accordingly, on consideration of the material available on record and the provisions Of section 21 of the Delhi Shops & Establishments Act, 1954, I hold that the claimant is entitled to receive earned wages from the Respondent/Management.
In view of the discussions and facts mentioned above, respondent has not paid the Earned Wages to the claimant deliberately & intentionally. Therefore, in exercise of powers conferred upon me under sub-section 3 of section 21 of the Act, the respondent is held liable to pay the due earned wages to the claimant.
Accordingly, I hereby direct the respondent i.e., M/s MIEUX Home Care Solutions Pvt. Ltd, through its Directors Sh. Tarun Goel and Sh. Subhash Kumar Goel, F-24/85, Sector-3, Rohini, Delhi-110085 to make payment of Rs. 1,35,000/- (Rupees One Lakh and Thirty Five Thousand Only) as due earned wages to the claimant Sh. Yogesh Kumar S/o Sh. Hari Krishan. I also impose a compensation amount of Rs.100/- as per Section 21(3) of the Delhi Shops & Establishments Act, 1954 and respondent/management is directed to deposit a sum of Rs. 1,35,100/- (Rupees One Lakh Thirty Five Thousand and One Hundred Only) alongwith Rs.5,000/- as cost which was imposed on 10.04.2023 before this Authority by way of demand draft/pay order in favour of claimant namely Sh. Yogesh Kumar, failing which the same shall be recovered as per the provisions laid down under clause (b) of subsection 5 of section 21 of the Delhi Shops & Establishments Act, 1954
..
14. Upon perusal of the aforementioned Order, it can be summarily stated that the issues before the learned Authority to adjudicate upon were, whether the respondent workman had worked with the petitioner entity during the claim period and if so, to what amount of earned wages was the respondent workman entitled to, and what directions were necessary in that regard.
15. Whilst adjudicating upon the issues raised before it, the learned Authority had observed that the respondent had filed evidence by way of affidavit (exbt. WW1/A) and relied upon a letter of appointment, copy of legal demand notice, copy of postal receipt of legal demand notice, copy of outstanding invoice receiving slip, copy of WhatsApp chats, copy of salary of the promoters and copy of cheques i.e., exhibits WW1/1 to WW1/7.
16. The learned Authority noted that in respondents cross examination, he had stated that although he resigned from the services of the management on 14th June, 2018 via WhatsApp message, however, on the very same day three persons representing the petitioner entity, namely, Sh. Pawan, Sh. Tarun and Sh. Subhash asked him to continue his services and also increased his salary by Rs.5,000/-. The respondent workman further deposed that the petitioner management had paid his salary till September 2018.
17. The learned Authority categorically noted that ample opportunities were granted to the petitioner entity to appear for cross-examination but none appeared and, therefore, a last opportunity was granted subject to furnishing of cost amounting to Rs.5,000/-, however, neither the cost was paid and nor did anyone appear. In view of the above, the learned Authority closed the petitioner entitys right to cross-examination.
18. Qua issue no.1 the learned Authority observed that the respondent has filed a copy of outstanding invoice receiving slip as exhibit WW1/4 for the month of July 2018 to October 2018, wherein, the name of the respondent and the stamp and signatures of the petitioner entity can be clearly observed.
19. The learned Authority further noted that the respondent has also filed copies of WhatsApp message (sent by the respondent) dated 30th November, 2018 which state the following: “pls. send your sale reports to Mr. Tarun or Mr. Subhsash from tomorrow. Pls. kal se apni sale reports Tarun Sir ya Subhash Sir ko bhejna. Regards Yogesh Kumar”.
20. The learned Authority bearing in mind the aforementioned evidence and the fact that although the petitioner entity filed its evidence by way of an affidavit, it failed to appear before the learned Authority for cross examination of the respondent witness. It is further observed that since the documents filed by the respondent have no where been denied hence, the said documents were proved to be genuine and the same conclusively proved that the respondent was working with the petitioner entity during the claim period. Thus, the issue no.1 was decided in favour of the respondent and against the petitioner entity.
21. Qua issue no.2 the learned Authority bearing in mind the powers conferred to it under the statute and the evidence available on record, it directed by the petitioner entity to make the following payments in favor of the respondent:
i. Rs.1,35,000/- as outstanding earned wages for the period in question i.e., 1stOctober, 2018 to 31st December, 2018.
ii. Rs.100/- as fine imposed under Section 21(3) of the Act.
iii. Rs.5,000/- as pending cost, imposed on 10th April, 2023 for failure to appear before the learned Authority.
22. At this juncture, this Court also deems it apposite to briefly state the legislative intent behind the Statute of the Delhi Shops and Establishments Act, 1954.
23. The Coordinate Bench of this Court in Bhandari Builders (P) Ltd. v. M.K. Seth, 1987 SCC OnLine Del 445, observed the following with regard to the legislative intent behind the said statute:
..5. The Delhi Shops & Establishment Act, 1954 is a socialistic piece of legislation for ameliorating the service conditions of the employees working in shops, commercial establishments, places of public entertainments or amusements or other such establishments. This piece of legislation is enforced to stop the exploitation of the weaker sections of the society. In this highly competitive world where there is a huge unemployment the weaker section of the people who clamour for employment to earn their livelihood are prone to be exploited by the employers and in order to provide succour to such employees that they should have decent working hours and also decant wages that this particular Act was brought into existence for its application to the Establishments in Delhi. Similar types of legislations have been promulgated in the different states as the subject is covered by the entry in the concurrent list on which both the states and centre would legislate
..
24. In view of the observations made under the aforementioned judicial dictum, this Court is of the considered view that the petitioner entity has approached this Court with malafide intent as the petitioner entity was granted ample opportunities by the learned Authority and despite trying to make out a case against the respondent, it chose not to appear before the learned Authority and even failed to participate in the cross examination before the learned Authority.
25. Therefore, bearing in mind the legislative intent of the said legislation which is to improve the service conditions of the employees and stop the exploitation of the weaker sections of the society, this Court is of the view that the instant petition is nothing but a gross misuse of process of law and a tactic to prolong the payment of the earned wages accrued to the respondent to which he is duly entitled to.
26. This Court is of the considered view that, the learned Authority has dealt with the issues in detail and based its reasoning on each of the issues after appreciating the evidence placed on its record, the cross examination as well as the settled position of law. Conclusively, the instant matter had been heard at length by the learned Authority and the petitioner entity was granted sufficient opportunity to contend its case.
27. This Court is of the view that as the scope of its writ jurisdiction is limited and is to be exercised sparingly, and it cannot undertake an exercise impermissible for this Court in exercising the writ jurisdiction such as by re-appreciating the evidence and drawing conclusions purely on questions of fact, as this Court is not sitting in an appellate jurisdiction over the awards passed by the learned Authority.
28. It is further observed that the learned Authority has categorically recorded that several opportunities were afforded to the petitioner entity to adduce evidence against the case of the respondent however, it failed to produce any evidence to support its case and also did not cross examine the respondent, therefore, the learned Authority has rightly held that since the documents produced by the respondent were not denied, the said documents were proved to be genuine and the same conclusively proved that the respondent was working with the petitioner entity during the period in question. Therefore, since there is no error on account of appraising evidence by the learned Authority, the reliefs as prayed by the petitioner employee cannot be granted.
29. It is perceptible from the findings of the learned Authority that it had gone into depth of the material placed before it, therefore, this Court discerns no material to establish the propositions put forth by the petitioner entity. It is held that there is no material to characterise the impugned Award as perverse and the learned Court below is well justified in passing the same.
30. In view of the foregoing discussions, this Court finds no infirmity in the impugned Orderdated 9th June, 2023, passed by the learned Authority under the Delhi Shops & Establishment Act, 1954, North-West District, Delhi in Case bearing No. S&E/67/NW/19/1430-32.
31. In light of the aforementioned observations, this writ petition is accordingly dismissed along with pending applications, if any.
32. The order be uploaded on the website forthwith.
CHANDRA DHARI SINGH, J
MAY 1, 2024
RK/DA/RYP/DB
W.P.(C) 5457/2024 Page 1 of 15