Delhi District Court
Sh. Suresh Kumar vs (2) M/S. Orion Security Solution Pvt. ... on 1 November, 2022
IN THE COURT OF GORAKH NATH PANDEY,
ADDL. DISTRICT & SESSIONS JUDGE,
PRESIDING OFFICER : LABOUR COURT - IV,
ROUSE AVENUE COURTS : NEW DELHI.
LIR No.194/2020
CNR No.DLCT130006642020
IN THE MATTER OF:
Sh. Suresh Kumar,
S/o Sh. Dodik Singh,
R/o RZ2/A10, Durga Park,
Gali No.6A, New Delhi - 110045.
Through
Delhi Pradesh Kamgar Ekta Sangh (Regd.4431),
E3, Shop No.2, Opposite Dadadev Hospital,
Sitapuri, Part1, New Delhi - 110045.
....WORKMAN/CLAIMANT
VERSUS
(1) M/s. Janakpuri Super Speciality Hospital,
(Govt. of NCT of Delhi)
Through its Director
C2B, Janakpuri, New Delhi.
(2) M/s. Orion Security Solution Pvt. Ltd.,
Through its Director
5E, First Floor, Jungi House, Street No.5,
near BSES Power Station, Shahpur Jat,
New Delhi - 110049.
....MANAGEMENTS
Date of institution of the case : 18.01.2020
Date of passing the Award : 01.11.2022
Decision : Allowed
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AWARD
1. Vide this Award, I shall decide the Industrial
Dispute which was referred by Jt. Labour Commissioner, West
District on a complaint filed by the aforesaid claimant/workman
against the Managements, vide reference no.
F.3(624)/19/Ref./wd/Lab./2185 dated 09.12.2019, u/s 10(1)(c)
and 12 (5) of The Industrial Disputes Act, 1947, wherein the
following reference was to be answered :
"Whether the services of workman Sh. Suresh Kumar S/o Sh.
Dodik Singh have been terminated illegally and/or unjustifiably
by the management and if so, to what relief is he entitled and what
directions are necessary in this respect?".
2. Notice of the reference was issued to the claimant.
Claimant appeared and filed his statement of claim with the
contentions that:
(i) he worked with the management no.1 since
03.03.2008 at the post of 'Nursing Orderly' and his last drawn
wages were Rs.11,500/- per month;
(ii) he worked honestly, efficiently, punctually and
regularly and has never given any chance of complaint to his
superior;
(iii) he was not provided the legal benefits as per labour
laws like appointment letter, pay scale, allowances, EL, CL, and
was subjected to harassment by management no.1 who appointed
different contractors for the exploitations of the workman;
(iv) the management no.1 is not registered under Section
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7 of Contract Labour (Regulation & Abolition) Act, 1970 to
appoint labour on contract basis;
(v) he was under the supervision and control of the
management no.1 and his job was of permanent nature;
(vi) he alongwith his co-workmen filed an industrial
dispute before the Conciliation Officer through Union against the
management no.1 for regularization of service;
(vii) the managements pressurized the workman to
withdraw his case and on refusal of the workman, the
managements got annoyed and terminated his services on
02.02.2018; the workman made a complaint against the
managements to the Labour Inspector in this regard and on the
direction of the Labour Inspector, the managements reinstated the
services of the workman;
(viii) the managements thereafter started pressuring the
workman to withdraw the case filed for regularization and on
refusal of the workman to do so, the managements terminated his
services on 15.11.2018 without paying his due wages;
(ix) the claimant issued legal demand notice dated
14.08.2019 to the managements which was not replied nor the
claimant was reinstated;
(x) the claimant also filed his complaint to the Labour
Office against the managements but of no avail;
(xi) the claimant also filed his statement of claim before
the Conciliation Officer but the management neither participated
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in the conciliation proceedings nor reinstated the workman.
Hence, the present reference.
The workman claims to be unemployed from the
date of his illegal termination. As claimed, the termination of
service of the workman is illegal and unjustified as the
managements violated the provisions of Section I.D. Act. It is
prayed that an award be passed in favour of workman and against
managements directing the managements to reinstate him with
consequential benefits including full back wages and continuity
in service.
3. Notice of the statement of claim was issued to the
managements. The managements made their appearance and
filed their separate written statements.
The management no.1 in its written statement
contended that there was no relationship of employer and
employees ever existed between the workman and the
management no.1; the workman was deployed by the
management no.2 i.e. contractor on the demand from
management no.1 on temporary basis and the Contractor was
having full administrative and supervisory control over the
workman; the management no.1 is neither an appointing
Authority nor terminating Authority in respect of the alleged
workman in this dispute; the claim of the workman is not
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maintainable against the management no.1 because there was no
existence of direct relationship of employer and employee
between the workman and the management no.1; the workman
has not filed any document i.e. appointment letter or termination
letter, service book, attendance register, leave record, payment of
salary/wages/D.A. overtime record or any other document
showing that he was under the direct employment with the
management no.1 at any point of time; the dispute of the
workman is not tenable against the management no.1 because the
management has never paid any salary or remuneration or any
amount from its official funds to the workman. The management
no.1 denied the other averments made in the statement of claim
and prayed to dismiss the claim petition.
The management no.2 in its written statement
submitted that the workman has not served demand notice under
I.D. Act, 1947 and hence this claim petition is liable to be
dismissed on this ground alone. It is further submitted that the
services of the workman were never terminated rather he left the
services on his own on 08.10.2018 without any prior intimation
or authorization and despite being called to ascertain the cause of
unauthorized absenteeism. The management no.2 denied the
averments made in the statement of claim and prayed to dismiss
the claim petition.
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4. The workman filed rejoinder to the written statement
of the managements denying the contents of written statements
and reiterating the averments made in the statement of claim.
5. Vide order dated 25.11.2021, the following issues
were framed in view of pleadings of the parties:
ISSUES:
(i) Whether there existed a relationship of employer and
employee between the workman and management no.1?OPW
(ii) Whether the services of workman were terminated
illegally and/or unjustifiably by the managements and if so, to
what consequential relief is the workman entitled for?OPW
(iii) In terms of reference.
(iv) Relief.
The case was, thereafter, fixed for evidence of
workman.
6. In order to prove his case, the workman had
appeared as witness and filed in evidence, his examination in
chief by way of affidavit Ex.WW1/A wherein he had reiterated
the contents of his statement of claim on solemn affirmation.
Besides this, he had also placed on record the following
documents :
(i) Ex.WW1/1: Reference order dated 29.12.18;
(ii) Ex.WW1/2: Common statement of claim filed by the
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workman and his coworkmen for regularization against
management no.1;
(iii) Ex.WW1/3: Complaint dated 16.11.2018 made to
ALC against the managements;
(iv) Ex.WW1/4: Proceedings conducted by Dy. Labour
Commissioner;
(v) Ex.WW1/5: Demand notice dated 14.08.2019 issued
to the managements;
(vi) Ex.WW1/6: Postal receipts of demand notice;
(vii) Ex.WW1/7: Statement of claim filed before the
Conciliation Officer;
(viii) Ex.WW1/8: Circular dated 13.12.2008;
(ix) Ex.WW1/9 to Ex.WW1/11: List of Nursing
Orderlies;
(x) Ex.WW1/12 : Leave application dated 25.04.2011;
(xi) Ex.WW1/13: List of latecomers/absentees dated
03.11.2011;
(xii) Ex.WW1/14: Duty roster dated 24.12.13 of Nursing
Orderlies;
(xiii) Ex.WW1/15: Complaint against the Nursing
Orderlies dated 02.06.15;
(xiv) Ex.WW1/16: Certificate of participation in
international day for differentlyabled issued to the workman;
(xv) Ex.WW1/17 (Colly): Attendance roll;
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(xvi) Ex.WW1/18: Notification dated 16.02.2015 issued
by Spl. Secretary (Services);
(xvii) Ex.WW1/19: Advisory dated 07.09.2018 issued by
Addl. Labour Commissioner;
(xviii) Ex.WW1/20: Letter dated 06.11.18 written by
Deputy Secretary to Directors Medical Superintendents of All
Hospitals, Institutions, Govt. of Delhi and Deputy Secretary
(Admn), H&I W Department, Delhi Secretariat;
The workman was crossexamined by the AR for the
managements.
The workman's evidence was thereafter closed.
7. In rebuttal, management no.1 had examined Dr.
Rakesh Yadav as M1W1 who filed his affidavit by way of
evidence as Ex.M1W1/A on solemn affirmation. M1W1 also
placed on record the following documents:
(i) Mark A: Memorandum of Association of Janakpuri
Super Speciality Hospital Society;
(ii) Mark B: Letter dated 01.08.2014 regarding creation
of 361 posts (316 posts on regular basis and 45 posts on
outsource basis) in Janak Puri Super Specialty Hospital,
Janakpuri, Delhi;
(iii) Mark C: Letter dated 18.11.2015 written by Dy.
Medical Superintendent, JSSHS to the management no.2; and
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(iv) Mark D (Colly): Tax invoices of management no.2.
8. The management no.2 had examined Sh. Bidyadhar
Sethi as M2W1 who filed his affidavit by way of evidence as
Ex.M1W1/A on solemn affirmation. M2W1 also placed on
record the following documents:
(i) Mark A: Register of Wages;
(ii) Mark B: Attendance register;
(iii) Mark C: Register of Wages; and
(iv) Mark D: Muster Roll.
9. I have heard the final arguments addressed by both
the sides. I have also gone through the records. I have also gone
through the written submissions filed by the management no.1.
The AR for the Managements also placed reliance upon the
following judgments in support of their contentions:
Relied by Management no.1
(i) Brij Mohan v. Presiding Officer, Labour Court &
Ors. reported as 2015 LLR 575;
Relied by Management no.2
(i) Union of India And Others v. Ram Bahadur Yadav
reported as (2022) 1 SCC 389;
(ii) State of Uttarkhand and Others v. Sureshwati,
(2021) 3 SCC 108;
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(iii) Airports Authority of India & Ors. v. Shambhu Nath
Das Alias S. N. Das, (2008) 11 SCC 498;
(iv) Vijay S. Sathaye v. Indian Airlines Ltd. And Ors.,
(2013) 10 SCC 253; and
(v) Raj Kumar v. M/s. K. Baboo Garments passed by
this court in LIR No.3836/2018.
10. My issue wise findings are as under:
Issue No.1
Whether there existed a relationship of employer and
employee between the workman and management no.1?OPW
11. The onus to prove the relationship of employer
employee between the management no.1 and the workman was
on the workman/claimant. It is no longer resintegra that the
burden of proving the employeremployee relationship primarily
rests upon the person who asserts its existence. In a situation
where a person asserts to be an employee of the management
which the management denies, the duty primarily rests upon the
person so asserting to give positive evidence in his favour and
discharge his initial burden. Once such a person has given
positive evidence in his favour, only then, the burden would shift
on the management to give evidence to counter such claims. This
is because it is always easier to prove positive facts than a
negative.
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12. In the judgment titled Automobile Association
Upper India v. P.O. Labour CourtII & Anr., reported as 130
(2006) DLT 160, Hon'ble Delhi High Court has held that
"engagement and appointment of the workman in service can
be established either by direct evidence like existence and
production of appointment letter or written agreement, or by
circumstantial evidence of incidental or ancillary records, in
nature of attendance register, salary register, leave records,
deposit of PF contribution, ESI etc. or even by examination
of coworker who may depose before the court that the
workman was working with the management".
13. The Hon'ble Supreme Court in "Workman of Nilgiri
Coop. Mkt. Society Ltd. Vs State of Tamil Nadu", reported as
AIR 2004 SC 1639 held as under:
"47. It is a well - settled principle of law that the person
who is set up a plea of existence of relationship of
employer and employee, the burden would be upon him.
48. In N.C. John Vs Secretary Thodupuha Taluk Shop
and Commercial Establishment Workers' Union and
others [1973 Lab. I.C. 398], the Kerala High Court held :
"The burden of proof being on the workman Jai Prakash
Vs M/s J.K. Sales Corporation 19.12.2019 Page No. 14
of 21 to establish the employer - employee relationship
an adverse inference cannot be drawn against the
employer that if he were to produce books of accounts
they would have proved employeremployee
relationship."
50. The question whether the relationship between the
parties is one of the employer and employee is a pure
question of the fact and ordinarily the High Court while
exercising its power of judicial review shall not interfere
therewith unless the findings is manifestly or obviously
erroneous or perverse."
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14. In 'Kanpur Electricity Supply Co. Ltd. Vs Shamim
Mirza', (2009/ 1 SCC 20, the Hon'ble Supreme Court held as
under :
"20. It is trite that the burden to prove that a claimant
was in the employment of a particular management,
primarily lies on the person who claims to be so but the
degree of proof, so required, varies from case to case. It
is neither feasible nor advisable to lay down an abstract
rule to determine the employer - employee relationship.
It is Jai Prakash Vs M/s J.K. Sales Corporation
19.12.2019 Page No. 15 of 21 essentially a question of
fact to be determined by having regard to the cumulative
effect of the entire material placed before the
adjudicatory forum by the claimant and the
management."
15. Similarly, the Hon'ble Delhi High Court in case
Babu Ram Vs Govt. of NCT of Delhi & Anr., 247 (2018) Delhi
Law Times 596 was pleased to observe :
"it is well settled principle of law that the person, who
sets up a plea of existence of relationship of employer
and employee, the burden would be upon him. In this
regard, the Hon'ble Supreme Court in the case of
Workmen of Nilgiri Coop. Mkt. Society Ltd. V. State of
T.N. and Others, (2004) 3 SCC 514 has approved the
judgment of Kerala and Calcutta High Court, where the
plea of the workman that he was employee of the
company was denied by the company and it was held
that it was not for the company to prove that he was not
an employee. Para 48 to 50 of the said judgment reads
as under :
"In N.C. John v. Secy., Thodupuzha Taluk Shop and
Commercial Establishment Workers' Union & Ors,
(1973 Lab IC 398) the Kerala High Court held : The
burden of proof being on the workmen to establish the
employer employee relationship an adverse inference
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cannot bedrawn against the employer that if he were to
produce books of accounts they would have proved
employer employee relationship.
In Swapan Das Gupta & Ors. v. The First Labour Court
of W.B. (1976 Lab IC 202 (Cal)) it has been held :
Where a person asserts that he was a workman of the
company and it is denied by the company, it is for him
to prove the fact. It is not for the company to prove that
he was not an employee of the company but of some
other person.
The question whether the relationship between the
parties is one of employer and employee is a pure
question of fact and ordinarily the High Court while
exercising its power of judicial review shall not interfere
therewith unless the finding is manifestly or obviously
erroneous or perverse."
And observed:
"The petitioner has placed on record his self supporting
affidavit, demand notice and postal receipts in evidence
which does not prove his relationship with the
respondent as employee and employer. In these
circumstances, I do not find that the impugned Award
suffers from any illegality or perversity. There is no
merit in the petition. The same is accordingly dismissed
with no order as to costs."
16. The question regarding onus and degree of proof for
a claim of employment of a workman with the management was
examined in the case of Bank of Baroda v. Ghemarabhai
Harijibhai Rabari reported as 2005 (10) SCC 792. It was held
that onus of proof was on the claimant, namely the workman who
claimed to have been employed by the management. It was also
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held that the degree of proof is vary from case to case and if the
workman had established a prima facie case, it would be the
responsibility of the management to rebut the same.
In view of aforesaid law, it was for the claimant to
prove that he was employee of the management no.1. The
statement of claim filed by the workman alongwith defence of
management no.1 has been mentioned at the outset. The
workman claimed that he joined the management no.1 on
03.03.2008 as Nursing Orderly; his last drawn salary was
Rs.11500/ per month; his services were terminated on
15.11.2018.
The management no.1 on the other hand denied any
relationship of employee employer between the parties. The
workman/WW1 has not produced any documentary proof
regarding his employment with the management no.1 for the
period as claimed in statement of claim. The workman during
crossexamination deposed that:
"I have been working with the hospital since 03.03.2008. No
appointment letter issued to me by the hospital. I am not
aware when the staff of the hospital were employed to the
contractor. I am not aware of the service rules of the hospital
that the hospital has a right to engage the employees of IV
grade (Group D) employee through contractor outsource
agency. I have not filed any complaint regarding change of
the contractor in the hospital. It is correct that salary was
transferred in my bank account. I am not aware whether the
salary was paid by management No. 1 or management No. 2.
I am not aware whether management No. 1 or management
No. 2 was providing the facilities of ESI and PF. Vol. No ESI
and PF facilities was given. I have not made any written
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complaint against the management for giving me the facilities
in writing. It is correct that one dispute of general demand of
regularization of the 29 workmen vide POIT 9299/2016 is
pending before Sh. Jitendra Kumar Mishra. It is wrong to
suggest that I was employed by management No. 2 and I
have not concern with management No. 1; there is no
employer employee relation with management No. 1; my
claim is false and I am not entitled for any relief against the
management No. 1".
None of the documents relied by the workman are in
respect of his employment or payment of salary by the
management no.1. No document was summoned or produced by
the workman in respect of his employment with the management
no.1 or payment of any salary. In fact, the workman did not take
any steps to summon or prove any document regarding his
employment, attendance or payment of wages. Merely oral and
bald averments by the workman is not sufficient to prove that he
was employed with the management No.1 as mentioned in the
claim. There is no admission by the management No.1 and
management no.1 denied that the claimant/workman was its
employee or paid any salary as claimed.
17. The management no.1 examined MW1 who has
reiterated the averments regarding no employment of the
workman with managements no.1. There is nothing on record to
come to the conclusion that the workman herein was appointed
by management no.1. MW1 during his crossexamination
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categorically deposed that:
"The management no.1 is functional from 2008. The post of the
doctors, nursing staffs and peons in the management no.1 is
sanctioned by the government. Vol. Though the post of the peon
is sanctioned, the same is out source. It is correct that post of
the nursing, orderly is permanent in nature be sanctioned.
Workman herein was working with management no.1 as
nursing orderly, since 03.03.2008 and he was paid salary as per
minimum wages. Vol. He was out sourced and was paid by the
contractor. It is wrong to suggest that workman was working
with management no.1 as permanent employee and was not out
sourced by any contractor. The contractor of the management
no.1 remain changing after the interval 1-2 years. I am not
aware that the case for regularization of the workman is
pending before Industrial Tribunal since 2015 vide Ex. WW1/1.
No approval was taken for removal of the workman nor any
petition was filed before Industrial Tribunal in this regard. Vol.
He was out sourced employee. No document has been filed to
show that the workman was appointed as out sourced employee
in the year 2008 or he worked as employee under contractor. 67
nursing oderlys are presently working with the management
no.1. Vol. All are out sourced. There was no complaint against
the workman during his working with management no.1 nor
any notice, charge-sheet or memo was issued against him; no
departmental inquiry has been conducted against him. No notice
or notice pay/compensation was paid to the workman before his
termination".
18. In the present case, there is absolutely no document
from which it can be ascertained that the workman has worked or
paid any amount by the management no.1 herein. There is also
no document from which it can be ascertained that the workman
herein was on the rolls of the management no.1. With the above
deficiencies in the evidence of the workman herein, it can not be
said that onus shifted on the management no.1. I have perused all
the documents relied by workman in support of his claim and
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none of these documents prove that the workman was the
employee of management no.1 as claimed in the statement of
claim. It is proved from the record and the testimony of the
witnesses that the workman was not employed by the
management no.1. The issues no.1 is decided accordingly in
favour of the management no.1 and against the workman.
Issue No.2 & 3
(ii) Whether the services of workman were terminated
illegally and/or unjustifiably by the managements and if so, to
what consequential relief is the workman entitled for?OPW
(iii) In terms of reference.
(Whether the services of workman Sh. Suresh Kumar S/o Sh.
Dodik Singh have been terminated illegally and/or
unjustifiably by the management; and if so, to what relief is
he entitled and what directions are necessary in this respect)?
The statement of claim filed by the workman along-
with defence of management no.2 has been mentioned at the
outset. The workman claimed that he joined the management as
'Nursing Orderly' on 03.03.2008 and his last drawn wages were
Rs.11,500/-; his service was illegally terminated on 15.11.2018
without paying his legal dues. The workman has produced the
relevant records i.e. Ex.WW1/1 to Ex.WW1/20.
The management no.2 on the other hand claimed
that the services of the workman were never terminated rather he
left the services on his own on 08.10.2018 without any prior
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intimation or authorization and despite being called to ascertain
the cause of unauthorized absenteeism.
19. The employer employee relationship is admitted. It
is reiterated that the workman examined himself as WW1 and
deposed regarding the claim. The witness has also proved the
relevant documents as abovesaid. The documents relied by the
WW1 are not disputed.
The workman during his crossexamination denied
the suggestion that he was not terminated from his job on
02.02.2018; he stopped coming to duty from 08.10.2018; he has
not worked with management no.2 from 1.10.2018 till
15.11.2018; he was called many times by phone and personal
visit of employee by management no.2 to join the duty but he is
not reported. The management's no.2 witness M2W1 deposed
regarding the contentions in the written statement vide his
affidavit Ex.M2W1/A. He was crossexamined and deposed
that :
"Management No. 2 is a private limited company. No board of
resolution is filed on record to show that the board has
authorized me to file WS and depose in the case. It is correct
that the 67 workmen including concerned workman who were
working with the management No. 1 already have started
working after the contract between Management No. 1 and 2 as
well. No letter was written to the workman calling him to join
on duty when he remained absent. No show cause notice, memo
or charge-sheet was issued to the workman for any misconduct.
Vol. I have personally given show cause notice to him. I have
not filed any acknowledgment regarding delivery of any show
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cause notice to the workman. Vol. He has refused to sign the
notice. No departmental inquiry was conducted against the
workman for any misconduct. No copy of show cause notice
issued to the workman has been filed on record".
There is no document on record placed by the
management to show that workman was issued any notice to join
his duties when he remained absent or subsequent enquiry was
made against him. The contention and claim of the workman
appears to be coherent.
20. There is nothing in testimony of WW1 during his
cross examination to controvert the claim. The workman
categorically proved that he worked with the management no.2
and completed 240 days in the preceding year of his termination.
As noted, no inquiry has been made by the management in the
matter as well.
21. It is settled that where an employer has failed to
make an enquiry before dismissal or discharge of a workman, it
is open for him to justify the action before the labour court by
leading evidence before it. It is relevant to refer the observations
of Hon'ble Supreme Court in Civil Appeal No.142/2021 titled
State of Uttarakahand and Ors. vs. Smt. Sureshwati decided on
20.01.2021. As held in the relevant para no.14 -
14. This Court has in a catena of decisions held that where an
employer has failed to make an enquiry before dismissal or
discharge of a workman, it is open for him to justify the action
before the Labour Court by leading evidence before it. The entire
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matter would be open before the tribunal, which would have the
jurisdiction to satisfy itself on the evidence adduced by the
parties whether the dismissal or discharge was justified. A four
Judge Bench of this Court in Workmen of the Motipur Sugar
Factory Private Ltd. v. Motipur Sugar Factory (AIR 1965 SC
1803) held that:
" 11. It is now well settled by a number of decisions of this Court
that where an employer has failed to make an enquiry before
dismissing or discharging a workman it is open to him to justify
the action before the tribunal by leading all relevant evidence
before it. In such a case the employer would not have the benefit
which he had in cases where domestic enquiries have been held.
The entire matter would be open before the tribunal which will
have jurisdiction not only to go into the limited questions open to
a tribunal where domestic enquiry has been properly held (see
Indian Iron & Steel Co. v. Workmen (AIR 1958 SC 130) but also
to satisfy itself on the facts adduced before it by the employer
whether the dismissal or discharge was justified. We may in this
connection refer to Sana Musa Sugar Works (P) Limited v.
Shobrati Khan (AIR 1959 SC 923), Phulbari Tea Estate v.
Workmen (AIR 1959 SC 1111) and Punjab National Bank
Limited v. Workmen (AIR 1960 SC 160). These three cases were
further considered by this Court in Bharat Sugar Mills Limited
v. Jai Singh (1962) 3 SCR, 684 and reference was also made to
the decision of the Labour Appellate Tribunal in Ram Swarath
Sinha v. Belsund Sugar Co. (1954) LAC 697 . It was pointed out
that "the important effect of omission to hold an enquiry was
merely this: that the tribunal would not have to consider only
whether there was a prima facie case but would decide for itself
on the evidence adduced whether the charges have really been
made out". It is true that three of these cases, except Phulbari Tea
Estate case, were on applications under Section 23 of the
Industrial Disputes Act, 1947. But in principle we see no
difference whether the matter comes before the tribunal for
approval under Section 33 or on a reference under Section 10 of
the Industrial Disputes Act, 1947. In either case if the enquiry is
defective or if no enquiry has been held as required by Standing
Orders, the entire case would be open before the tribunal and the
employer would have to justify on facts as well that its order of
dismissal or discharge was proper. Phulbari Tea Estate
case was on a reference under Section 10, and the same principle
was applied there also, the only difference being that in that case
there was an inquiry though it was defective. A defective
enquiry in our opinion stands on the same footing as no enquiry
LIR No.194/2020
Sh. Suresh Kumar v. M/s. Janak Puri Super Speciality Hospital & Anr.
Page 20 of 31
and in either case the tribunal would have jurisdiction to go into
the facts and the employer would have to satisfy the tribunal that
on facts the order of dismissal or discharge was proper."
Subsequently in Delhi Cloth and General Mills Co. v.
Ludh Budh Singh (1972) 1 SCC 595 this Court held that :
"(1) If no domestic enquiry had been held by the management, or
if the management makes it clear that it does not rely upon any
domestic enquiry that may have been held by it, it is entitled to
straightway adduce evidence before the Tribunal justifying its
action. The Tribunal is bound to consider that evidence so
adduced before it, on merits, and give a decision thereon. In such
a case, it is not necessary for the Tribunal to consider the validity
of the domestic enquiry as the employer himself does not rely on
it.
....
(3) When the management relies on the enquiry conducted by it, and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management, are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.
Reliance is also placed on the judgment of this Court in Workmen of Firestone Tyre & Rubber Co. of India (P) Ltd. v. The Management of Firestone Tyre & Rubber Co. of India (P) Ltd and Others. (1973) 1 SCC 813 wherein the broad principle regarding holding of the enquiry were spelt out as:
"32. From those decisions, the following principles broadly emerge:
"(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.LIR No.194/2020
Sh. Suresh Kumar v. M/s. Janak Puri Super Speciality Hospital & Anr.
Page 21 of 31(3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide. (4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct. (9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be LIR No.194/2020 Sh. Suresh Kumar v. M/s. Janak Puri Super Speciality Hospital & Anr.
Page 22 of 31interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation. (10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Management of Panitole Tea Estate v. Workmens, (1971) 1 SCC 742 within the judicial decision of a Labour Court or Tribunal.
..........
40. Therefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under Section 11-A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case and hold that no misconduct is proved.
41. We are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference under Section 11-A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to re- appraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, Section 11-A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11-A."
LIR No.194/2020Sh. Suresh Kumar v. M/s. Janak Puri Super Speciality Hospital & Anr.
Page 23 of 31It is reiterated that in this case no steps were taken by the management no.2 in respect of charge sheet and inquiry at all.
22. In view of the aforesaid discussions, it is held that the management no.2 herein has not been able to discharge its onus in support of contentions. It is duly proved from the materials on record and the testimony of the witnesses that the services of the claimant were terminated illegally/unjustifiably by the management no.2. The ratio of judgments relied upon by the AR for the management no.2 is not squarely applicable in the facts and circumstances of the case. In view of the above discussions, the Issues no.2 & 3 are accordingly decided in favour of the workman and against the management no.2.
Issue no.4:
Relief
23. The claimant herein has sought the relief of reinstatement in the service with full back wages along with the continuity of service and all the consequential benefits. The term "reinstatement" has not been elucidated in the Industrial Disputes Act, 1947. The Shorter Oxford English Dictionary, Vol. II, 3rd Edition stated that, the word "reinstate" means to reinstall or reestablish (a person or thing in a place, station, condition etc.); to restore to its proper and original state; to reinstate afresh and LIR No.194/2020 Sh. Suresh Kumar v. M/s. Janak Puri Super Speciality Hospital & Anr.
Page 24 of 31the word "reinstatement means the action of reinstating; reestablishment. "As per Black's Law Dictionary, 6th Edition, "reinstatement" means 'to reinstall, to reestablish, to place again in a former state, condition, or office, to restore to a state or position from which the object or person had been removed'.
24. In Hindustan Tin Works Pvt. Ltd. Vs. The Employees of Hindustan Tin Works Pvt. Ltd., (1979 (2) SCC 80). The three judges Bench of the Hon'ble Supreme Court has laid down :
"In the very nature of things there cannot to a straight jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances..."
25. In cases of wrongful termination of service, reinstatement with continuity and back wages is the normal rule as held by the Hon'ble Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya and Ors., (2013) 10 SCC 324. The concept of reinstatement was also discussed therein:
"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service LIR No.194/2020 Sh. Suresh Kumar v. M/s. Janak Puri Super Speciality Hospital & Anr.Page 25 of 31
cannot easily be measured in terms of money..... The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments." (emphasis supplied).
Further, the Hon'ble Supreme Court laid down the following principles to govern the payment of back wages:
(Deepali Gudnu Surwase case, SCC pp. 356-58, para 38) "38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2 The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
38.3 Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not LIR No.194/2020 Sh. Suresh Kumar v. M/s. Janak Puri Super Speciality Hospital & Anr.Page 26 of 31
employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. 38.4 The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then, it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award or full back wages. 38.5 The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
38.6 In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-a- vis the employee or workman. He can avail the services of best LIR No.194/2020 Sh. Suresh Kumar v. M/s. Janak Puri Super Speciality Hospital & Anr.
Page 27 of 31legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of frame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees".
26. In the case titled as Tapash Kumar Paul Vs BSNL & Anr, and reported as of JT 2014 (7) SC 589, the Hon'ble Supreme Court has held that the court may either award the compensation or order for reinstatement in the cases which do not fall within the five categories as described by the Hon'ble Supreme Court in the aforesaid judgment. The relevant portion of this judgment is reproduced as under :
"It is no doubt true that a Court may pass an order substituting an order of reinstatement by awarding compensation but the same has to be based on justifiable grounds viz.(i) where the industry is closed; (ii) where the employee has superannuated or going to retire shortly and no period of service is left to his credit; (iii) where the workman has been rendered incapacitated to discharge the duties and cannot be reinstated and/or; (iv) when he has lost confidence of the Management to discharge duties. What is sought to be emphasised is that there may be appropriate case on facts which may justify substituting the order of reinstatement by award of compensation, but that has to be supported by some legal and justifiable reasons indicating why the order of reinstatement should be allowed to be substituted by award of compensation. In the instant matter, we are not satisfied that the appellant's case falls in to any of the categories referred to hereinbefore which would justify compensation in lieu of reinstatement. We thus find no justification for the High Court so as to interfere with the Award passed by the Tribunal which was affirmed even by the single Judge, but the Division Bench thought it appropriate to set aside the order of reinstatement without specifying any reasons whatsoever, as to why it substituted with compensation of a meager amount of Rs.20,000/- to the appellant."
27. Hon'ble High Court of Delhi in the matter titled as LIR No.194/2020 Sh. Suresh Kumar v. M/s. Janak Puri Super Speciality Hospital & Anr.
Page 28 of 31Thomas Reuters Private Limited vs. Ld. Presiding Officer, Labour Court & Ors. cited as MANU/DE/2665/2021, dated 30.09.2021 has held that in cases of illegal dismissal, the normal rule is reinstatement with full back wages. The Hon'ble High Court of Delhi in Paras No. 102, 106 and 119 thereof has held as under :
"102. In view of the conspectus of the aforesaid judgements, be it ingeminated that whenever an employee is dismissed, removed or terminated and the action of the employer is found to be illegal, the normal rule, albeit subject to exceptions, is that the employee should be restored to the position which he or she held before the umbilical cord broke between the employer and the employee. As noticed by the Hon'ble Supreme Court, the word 'reinstatement' means to reinstall/re- establish/restore to the earlier position or former state, condition or office.
"106. Recent trend of judgements shows that Courts have been holding that reinstatement may not be a natural or automatic consequence of setting-aside of dismissal order. However, reading of the two aforesaid judgements and other recent judgements, in my considered view, leads to an inevitable conclusion that for the purpose of grant of relief of reinstatement, Courts have always understood and appreciated the difference in the nature of employment of the employee as well as the length of service. In the present case, Respondent No.2 was a regular employee, with over nineteen years of continuous and unblemished service and clearly falls within the axiomatic jurisprudence and legal regime laid down by the Hon'ble Supreme Court in Hindustan Tin Works (supra) and not in the exceptions in the later judgements.
"119. On a reading of the above conspectus of judgements and the principles propounded in Deepali Gundu (supra), it is clear that the law on back wages is no longer res integra. In cases of wrongful termination, reinstatement with back wages is the normal rule, subject to course to a caveat that while deciding the issue of back wages, Courts may take into consideration a host of factors, such as length of service of the employee, financial condition of the employer, etc. The employee is required to plead that he or she was no gainfully employed or LIR No.194/2020 Sh. Suresh Kumar v. M/s. Janak Puri Super Speciality Hospital & Anr.Page 29 of 31
was employed on lesser wages. As observed in Deepali Gundu (supra), in cases where the Competent Court or Tribunal finds that employer has acted in gross violation of statutory provisions and/or Principles of Natural Justice, etc. then it shall be fully justified in directing payment of full back wages and in such cases, Superior Courts should not exercise powers under Article 226 or Article 136 of the Constitution of India and interfere with the Award, only because there is possibility of forming a different opinion. Hon'ble Supreme Court has also struck a note of caution that Courts must always keep in view that in cases of wrongful termination, wrongdoer is the employer and sufferer is the employee/workman and thee is thus no justification to give a premium to the employer for their wrongdoing by relieving them of the burden to pay back wages."
28. In the present case, the claimant had worked with the management no.2 for more than 10 months before his illegal termination on 15.11.2018, as such, this court is of the considered view that the case of the claimant does not fall in any of the categories as mentioned by Hon'ble Supreme Court in the case of Tapash Kumar Paul Vs BSNL & Anr,(Supra) and therefore, in the present case claimant is entitled to be reinstated in services.
29. The claimant in statement of claim as well as his affidavit Ex.WW1/A deposed that he is unemployed since the date of his illegal termination despite his best efforts. In the present case, the management no.2 has not been able to show that the claimant herein is gainfully employed elsewhere by summoning of relevant witnesses or proving the documents as per law. The claimant is, therefore, entitled for full back wages as well.
LIR No.194/2020Sh. Suresh Kumar v. M/s. Janak Puri Super Speciality Hospital & Anr.
Page 30 of 3130. The reference is answered accordingly in favour of the claimant and against the management no.2 and the claimant namely Sh. Suresh Kumar is entitled for reinstatement in services on the post on which he was working on the date of termination with full back wages with effect from 15.11.2018 i.e. the date of termination of the claimant up-to-the date of the award with other consequential benefits.
31. Management no.2 is directed to pay the amount accrued in favour of claimant within three months from the date of publication of award. If the management no.2 fails to pay the amount within the time stipulated, the accrued amount shall carry interest @ 9% per annum from the date of accrual and till the final payment is made.
32. Award is passed and reference is answered accordingly.
33. Digitally signed copy of Award be uploaded on the website of RADC. A copy of the award be sent to the concerned Dy. Labour Commission for publication as per rules. File be Digitally signed by consigned to the Record Room. GORAKH GORAKH NATH NATH PANDEY Date: 2022.11.11 PANDEY 14:51:20 +0530 Announced in the open (Gorakh Nath Pandey) Court on 01.11.2022 Addl. District & Sessions Judge, Presiding Officer Labour Court- IV, Rouse Avenue District Courts, New Delhi.
LIR No.194/2020Sh. Suresh Kumar v. M/s. Janak Puri Super Speciality Hospital & Anr.
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