Delhi District Court
Virender Singh vs . General Manager, Fruit & on 28 July, 2007
IN THE COURT OF SH. O.P. SAINI, PRESIDING OFFICER,
LABOUR COURT NO. VII, DELHI.
I.D. NO. : 128/2005
B E T W E E N
The workman Sh. Raj Kumar Sharma
S/o Late Sh. Chander Bhan Sharma
R/o Village and Post Office Kotia
District Mahindergarh, Haryana.
A N D
The Managements of M/s Wipro Biomed
A Division of Wipro Limited
Through its Incharge/Chief Executive Officer
Office at 903, Prakashdeep Building,
7, Tolstoy Marg, New Delhi 110 001.
Also at :
M/s Wipro Biomed
Delhi Regional Office
Through its incharge/Regional Branch
Manager/Head,
B25, Okhla Industrial Area,
PhaseI, New Delhi 20.
A W A R D
1. Workman has filed the instant statement of claim
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directly in the court U/s 10 (4A) of the Industrial Disputes Act
(hereinafter to be referred as the 'Act').
2. Brief facts of the case as made out from the record
are that the workman was employed by the management as peon
with effect from 1.6.94 and was assigned duties at its factory
located at plot number 480481, Sector20, Udyog Vihar, Phase
III, Gurgaon, Haryana. Later on, he was promoted to the post of
factory assistant vide letter dated 30.12.98. It is claimed that
after completion of training, workman was permanently
employed by the management. His last drawn salary was
Rs.7,250/. He never gave any chance of complaint to the
management. He was denied overtime wages. He was entitled
to overtime wages and all other benefits, like provident fund,
gratuity, medical reimbursement, leave etc. He received his
salary upto July, 2004. The workman performed his duties at
Okhla, as per the directions of the management. However, on
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1.9.2004, when the workman went for duty, he was not allowed
to sign the attendance register and he was also not paid salary
with effect from August, 2004 onwards. It is claimed that he
was not allowed to enter the office. He made a report to the
police also. The workman served a demand notice on the
management on 23.12.2004 but to no use. Thereafter, he filed a
civil suit but the same was dismissed being not maintainable. It
is alleged that he was terminated by the management with effect
from 7.2.2005. It is repeatedly claimed that the termination is
unlawful and unjustified. Hence, this claim with prayer to set
aside the termination and to reinstate the workman with
consequential benefits including continuity of service and full
back wages.
3. Managements contested the claim and filed its
written statement admitting that the workman was employed
with it at its Gurgaon unit but the same was closed permanently
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in June, 2004. The workman was directed to report at Okhla
office because the management wanted to retain him in a
suitable post. However, no vacancy was available despite best
efforts and the workman was eventually retrenched with effect
from 7.2.2005 after being paid retrenchment compensation in
accordance with law. It is claimed that there is no industrial
dispute as the workman was paid retrenchment compensation. It
is claimed that its office at Gurgaon had closed down and the
workman has been paid a sum of Rs.65,538/, as notice pay and
retrenchment compensation. It is prayed that since the
termination of the workman is lawful and justified, his claim
may be dismissed.
4. Workmen filed rejoinder to the written statement,
wherein they denied the allegations contained in the written
statement and reasserted the averments made in the statement of
claim.
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5. On the pleadings of the parties, following issues
were settled for trial vide orders dated 28.11.2005 :
I) Whether the services of the workman were terminated
illegally and unauthorisedly? If so, to what effect?
II) Relief.
6. In support of his case, workman has examined
himself as WW1, and has placed on record his own affidavit
Ex.WW1/A, along with documents Ex.WW1/1 to 23.
7. On the other hand, management has not led any
evidence and its evidence was closed vide order dated 9.5.2007.
8. I have heard the arguments at the bar and have
carefully gone through the file.
9. My findings on the issues are as under :
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ISSUES NO. 1 & 2 :
10. Both issues shall be disposed of together as they
are interconnected.
11. It is submitted by learned authorized representative
(Ld. AR) for workman that termination of the workman is
illegal and unjustified as no reason has been given in the
termination order. It is submitted that though the workman was
paid retrenchment compensation but the termination order does
not disclose any reason as to why the workman was retrenched.
It is prayed that the retrenchment must be lawful and justified.
In the instant case, management has failed to prove that the
retrenchment was justified and, if justified, for what reason. It is
submitted that a permanent employee cannot be terminated in
such arbitrary and whimsical manner by invoking terms of
appointment, which on the face of it are illegal. It is submitted
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that the terms of appointment of this workman are also same as
that of Sh. Atit Kumar Das, who had filed the connected case ID
No.127/05. My attention has been invited to the following
authorities :
I)
Virender Singh Vs. General Manager, Fruit &
Vegetable Project & Anr. 1998 1 CLR 1134
II) Madan Lal Arora Vs. Management/Director, All India
Institute of Medical Sciences 1999 (83) FLR 746
III) National Textile Corporation & Anr. V.C. Jain & Anr.
2000 II CLR 466
IV) Asha Vij Vs. Chief of Army Staff & Ors. 1999 1 CLR
123.
V)
Uttranchal Forest Development Corporation & Anr.
Vs. Jabar Singh & Ors. 2007 II LLJ 95 SC
12. On the other hand, management has chosen not to
submit any arguments.
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13. Section 2(oo) of the Act defines "retrenchment" as
under:
"retrenchment' means the termination by the
employer of the service of a workman for any
reason whatsoever, otherwise than as a
punishment inflicted by way of disciplinary
action but does not include
(a) voluntary retirement of the
workman; or
(b) retirement of the workman on
reaching the age of superannuation if the
contract of employment between the employer
and the workman concerned contains a
stipulation in that behalf ; or
(bb) termination of the service of the
workman as a result of the nonrenewal of the
contract of employment between the employer
and the workman concerned on its expiry or of
such contract being terminated under a
stipulation in that behalf contained therein; or
(c) termination of the service of a
workman on the ground of continued ill
health"
14. In an authority reported as S.M. Nilajkar & Ors.
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Vs. Telecom District Manager, Karnataka (2003) 4 SCC 27,
Hon'ble Supreme Court dealt with the meaning of
"retrenchment" and observed in paragraph 12 as under :
"12. "Retrenchment" in its ordinary
connotation is discharge of labour as surplus
though the business or work itself is
continued. It is well settled by a catena of
decisions that labour laws being beneficial
pieces of legislation are to be interpreted in
favour of the beneficiaries in case of doubt
or where it is possible to take two views of a
provision. It is also well settled that
Parliament has employed the expression
"the termination by the employer of the
service of a workman for any reason
whatsoever" while defining the term
"retrenchment", which is suggestive of the
legislative intent to assign the term
"retrenchment" a meaning wider than what
it is understood to have in common
parlance. There are four exceptions carved
out of the artificially extended meaning of
the term "retrenchment", and therefore,
termination of service of a workman so long
as it is attributable to the act of the employer
would fall within the meaning of
"retrenchment" dehors the reason for
termination. To be excepted from within
the meaning of "retrenchment" the
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termination of service must fall within one
of the four excepted categories. A
termination of service which does not fall
within categories (a), (b), (bb) and (c) would
fall within the meaning of "retrenchment.
15. Section 25 F of the Act, provides conditions to be
complied with at the time of retrenchment of a workman and
lays down as under :
"No workman employed in any industry
who has been in continuous service for not
less than one year under an employer shall
be retrenched by that employer until
(a) the workman has been given one
month's notice in writing indicating the
reasons for retrenchment and the period of
notice has expired, or the workman has
been paid in lieu of such notice, wages for
the period of the notice;
(b) the workman has been paid, at
the time of retrenchment, compensation
which shall be equivalent to fifteen days'
average pay for every completed year of
continuous service or any part thereof in
excess of six months; and
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(c) notice in the prescribed manner
is served on the appropriate Government
for such authority as may be specified by
the appropriate Government by notification
in the Official Gazette"
16. In an authority reported as Workmen of Subong
Tea Estate (Indian Tea Employees' Union) and Subong Tea
Estate and another (1964) I LLJ SC 333, Hon'ble Supreme
Court dealt with the right of an employer to effect retrenchment
for bonafide trade reasons and observed at page 338 as under:
".................................................................
...................................................................
In dealing with the question of retrenchment in the light of the relevant provisions to which we have just referred, it is, however, necessary to bear in mind that the management can retrench its employees only for proper reasons. It is undoubtedly true that it is for the management to decide the strength of its labour force, for the number of workmen required to carry out efficiently the work involved in the : 11 : (RC) industrial undertaking of any employer must always be left to be determined by the management in its discretion, and so, occasions may arise when the number of employees may exceed the reasonable and legitimate needs of the undertaking. In such a case, if any workmen become surplus, it would be open to the management to retrench them. Workmen may become surplus on the ground of rationalization or on the ground of economy reasonably and bona fide adopted by the management, or of other industrial or trade reasons. In all these cases, the management would be justified in effecting retrenchment in its labour force. Thus, though the right of the management to effect retrenchment cannot normally be questioned, when a dispute arises before an industrial court in regard to the validity of any retrenchment, it would be necessary for industrial adjudication to consider whether the impugned retrenchment was justified for proper reasons. It would not be open to the management either capriciously or without any reason at all to say that it proposes to reduce its labour force for no rhyme or reason. This position cannot be seriously disputed."
17. It is the admitted case of the parties that workman : 12 : (RC) was employed with the management with effect from 1.6.94. It is also admitted case that he was terminated with effect from 7.2.2005. The main contention of Sh. Raj Rishi Ld. AR for workman is that management has not given any reason for terminating the services of workman. It is further submitted by him that clause 19 of appointment letter, Ex.WW1/2 is illegal and arbitrary as it gives liberty to the management to terminate the services of the workman by giving two months' notice and that too without any reason and, as such, the termination of the workman is illegal and unjustified. I find that in termination letter Ex.WW1/5, the management has not given any reason but has expressed its inability to continue the service of the workman. However, in the written statement management claims that the services were terminated as the workman was initially employed at Gurgaon and the Gurgaon office has been permanently closed down in June, 2004. The management tried its best to fit the workman in some suitable post at its regional : 13 : (RC) office at Okhla but could not do so. Workman has filed rejoinder to the written statement and in the rejoinder he has not denied that the Gurgaon office where he was initially appointed has been closed down permanently. As such, the reason for termination has come on record and that is the permanent closing down of the office at Gurgaon.
18. As far as the legality of termination is concerned, the same is beyond doubt as retrenchment compensation as well as notice pay has been paid as per section 25 F of the Act as well as the appointment letter Ex.WW1/2. It is also true that the termination of the workman must be legal as well as justified.
The termination is justified for the reason that the office at Gurgaon has closed down permanently. The authorities cited by the Ld. AR for workman are not applicable to the facts of the case as they were given in different facts and circumstances where no closure of the office where the workman was : 14 : (RC) employed was involved. As such, these authorities are not applicable to the facts.
19. In view of the above discussion, I find that services of the workman have been terminated in legal and justifiable manner. As such, the workman is not entitled to any relief. Both issues are decided in favour of management and against the workman.
20. Award is passed in the above terms. Six copies of the award be sent to the appropriate government. File be consigned to record room.
Dated : 28.7.2007 (O.P. SAINI)
PRESIDING OFFICER, LABOUR
COURT NO. VII, DELHI.
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