Delhi District Court
Sh. Ajay Tiwari vs (1) M/S Excel Copygraphics Pvt. Ltd on 10 October, 2017
IN THE COURT OF SHRI UMED SINGH GREWAL, PILOT
COURT / POLCXVII ROOM NO. 22 :KKD COURTS: DELHI
LIR No.1184/17.
IN THE MATTER OF:
Sh. Ajay Tiwari
S/o Sh. Janaki Prasad Tiwari, DOB 22.12.1989,
R/o House No.462, 1st Pushta, BlockA, Gali No.7,
Sonia Vihar, New Delhi1110094, Mobile No.9560928415,
Adhar Card No. 3293 1756 5487
C/o Sh. S.B. Tiwari, Secretary, Mobile No.9211987909,
Mazdoor Kalyan Sangh (Regt No.3125), 13A,
Rajpur Road, Delhi110054.
..............Workman
Versus
(1) M/s Excel Copygraphics Pvt. Ltd.,
(S/Sh. Avinash Chand Sher, Rajiv Goyal, Subodh Chand Kaushik,
Owners), Shop No.5, 55Ram Mandir Lane, New Delhi110002,
Tel. No.23268153.
(2) M/s. Mars Printech Pvt. Ltd.,
Building No.79, 1st Floor, 101, Shayam Lal Road,
Darya Ganj, New Delhi110002.
............. Management
DATE OF INSTITUTION : 25.04.2017.
DATE ON WHICH AWARD RESERVED : 25.09.2017.
DATE ON WHICH AWARD PASSED : 10.10.2017.
A W A R D :
1. Vide Order No.F.24(127)/17/Ref./CD/Lab./639 dated
24.04.2017, issued by Govt. of NCT of Delhi, a reference was sent
LIR No.1184/17 1/23
to this Court with the following terms:
"Whether Sh. Ajay Tiwari S/o Sh. Janaki
Prasad Tiwari absented from his duties
unauthorizedly or his services 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. Claimant's case is that he had started working with
managements in January, 2004 as Office Boy at the last drawn salary
of Rs.10,090/. Both managements used to take work from him.
Before it, he had worked with M/s. Intel Engineers Pvt. Ltd. which
was run by the present managements. He had worked honestly and
diligently and never gave any chance of complaint. The
managements were not providing him legal facilities like
appointment letter, attendance card, leave book, payslip, leave
encashment and overtime wages etc. When he demanded those
facilities orally time and again, his signatures were obtained on
blank papers and vouchers on the assurance that all legal facilities
would be provided soon. His service was terminated by
management No.1 on 08.08.2016 without notice, notice pay, charge
sheet and without retrenchment compensation and without
conducting domestic enquiry threatening that if he was seen in the
premises again, he would be implicated in a false case and was also
abused in filthy language. Against that act of the management, he
LIR No.1184/17 2/23
filed a complaint to the police on 16.08.2016 and sent a demand
notice dated 16.08.2016 which went unreplied. Case filed before
Conciliation Officer remained unresolved. He is jobless since
termination of service.
3. Written statement of management No.1 is to the effect
that the case of the claimant is time barred because it has been filed
after expiry of one year. He was dismissed from service after
following due process of law i.e. after serving memo, one month
notice and one month salary. He had failed to reply those notices
and hence, his service was terminated. It is mentioned in reply on
merit that the claimant was not working with it in the year 2004. He
had submitted handwritten resume only on 31.03.2009 for
appointment. He started working as Office Boy since 2009. He was
not a permanent employee and so, he was not provided legal
facilities meant for a permanent employee. He had started absenting
unauthorizedly w.e.f. 06.08.2016 without intimation and resignation
letter. It sent reply to the demand notice on 03.09.2016 mentioning
that he was absent since 07.08.2016 without intimation.
4. Written statement of management No.2 is to the effect
that claimant had never worked with it and so, there was no relation
between it and claimant.
LIR No.1184/17 3/23
5. Following issues were framed on 13.07.2017:
1. Whether there was a relationship of employer and
employee between management No.2 and
claimant? OPW.
2. Whether claimant himself left the job of
management No.1 by remaining unauthorizedly
absent w.e.f. 06.08.17? OPM1.
3. As per terms of reference. OPW.
4. Relief.
6. In order to substantiate the case, the claimant tendered
his affidavit in evidence as Ex.WW1/A mentioning all the facts
stated in statement of claim. He relied upon following documents :
I. Ex.WW1/1 is copy of complaint dated 16.08.16 to SHO PS
Daryaganj.
II. Ex.WW1/2 is copy of postal receipt vide which complaint was
sent to PS Daryaganj.
III. Ex.WW1/3 is demand notice dated 16.08.16.
IV. Ex.WW1/4 are copies of two postal receipts vide which
demand notice was sent to managements.
V. Ex.WW1/5 is statement of claim filed before Conciliation
Officer.
VI. Mark W1 (05 pages) are copies of five vouchers dated
09.05.08, 07.07.06, 04.06.05, 04.03.05 and 08.06.200...
7. The management No.1 examined two witnesses.
M1W1 Sh. Hans Raj Dogra is Customer Attender, who
LIR No.1184/17 4/23
deposed that claimant was working with management No.1 since
01.04.2009. There was dispute between proprietor Sh. Subodh and
claimant for late coming.
M1W2 Sh. Subhodh Chandra Kaushik is the Proprietor
of management No.1. He deposed that on 31.03.2009, the claimant
alongwith his brother, namely, Sh. Ravi Narain Tiwari had come in
his office with resume for job. He had kept him in job as Office
Boy. His brother was also doing job in the same office. The
claimant started working with him since 01.04.2009. He used to
come late two or three days in a week but there was no problem in
his late coming because in morning time, no customer would visit
the shop. On 06.08.2017, the claimant had come in the office at
about 10.25 AM and did duty. Thereafter, he did not respond. On
03.09.2016, he sent a letter to the claimant intimating that he was not
coming on duty. The claimant did not send reply to that letter. He
next deposed that a notice dated 07.09.2016 came to him from
Labour Commissioner that claimant had lodged a complaint. He
visited that office gave offer to claimant join back, but he did not
give any reply. He sent a letter dated 09.01.2017 to Labour
commissioner mentioning that claimant had got all dues from him
and had that his last salary of Rs.9,510/ had been transferred in his
bank account on 05.08.2016. He relied upon following documents:
i. Ex.M1W2/1 is original resume dated 31.03.2009 of the
claimant.
LIR No.1184/17 5/23
ii. At this stage, an envelope already on the file is cut opened and
it is found containing a letter dated 03.09.16 now
Ex.M1W2/2.
iii. Ex.M1W2/3 is the envelope containing the letter Ex.M1W2/2.
iv. Ex.M1W2/4 is letter dated 22.09.16 issued by management
No.1 to Deputy Labour Commissioner (Central District)
alongwith postal receipt.
v. Ex.M1W2/5 is complaint dated 06.10.16 to PS Daryaganj
against claimant.
vi. Ex.M1W2/6 is letter dated 09.01.17 to ALC, Pusa, New Delhi
alongwith salary transfer receipt vide which last salary was
paid to the claimant.
vii. Ex.M1W2/7 is notice for appearance dated 07.09.16
alongwith envelope.
8. The management No.2 also examined two witnesses.
M2W1 Sh. Avinash Chand Sher is the proprietor of
management No.2. He deposed that he was running the business by
the name of management No.2 since 30 years. He did not know
claimant. The claimant never worked with him. On 01.04.2009,
about 17 workers were working with it, but the claimant was not one
of them. He relied upon only one document i.e. letter dated
10.04.2017 to ALC alongwith postal receipt as Ex.M2W1/1.
M2W2 Sh. Amar Singh Verma is the member of
management No.2. He deposed that he was working with that
management for last 25 years and that he never saw Sh. Ajay Tiwari
LIR No.1184/17 6/23
in the office of management No.2 doing any work.
Issue No. 1:
9. Ld. ARW argued that claimant was forced by
management No.1 to work with management No.2 also. The
distance between both managements is about 100 meters. Salary
used to be paid to him by both managements.
On the other hand, ld. AR for both managements argued
that claimant was not employee of management No.2. He was
employed by only management No.1 and he was never forced to
work with management No.2. The distance between both
managements is 700 meters and it was not possible for claimant to
work with both managements at the same time. Salary used to be
paid by management No.2. In the documents placed on record by
management No.1, it is crystal clearly mentioned that claimant was
employed with it. The management No.2 has also placed on record
the service record of its employees from which the name of the
claimant is conspicuously missing.
10. M2W1 Sh. Avinash Chand Sher, Proprietor of
management No.2 deposed that he was running the business by that
name since 30 years and that a person namely Sh. Ajay Tiwari /
claimant never worked in his office. He is fully supported by his
LIR No.1184/17 7/23
employee namely Sh. Amar Singh Verma, M2W2 who deposed that
he was working with management since last 25 years and that he
never saw Sh. Ajay Tiwari in the office of management No.2 doing
any work. Both these witnesses are fully corroborated by attendance
register of the employees of management No. 2 from 01.01.2004 to
31.08.2017. In that register, name of the claimant is missing. Had
claimant been employee of management No.2, his name would have
definitely figured in that register. On the other hand, the
management No.1 has placed on record salary statement of its
employees from 01.10.2010 to 28.02.2017 and attendance register as
Ex.M1W2/W1 from 01.01.2010 to 31.05.2017. In both registers,
name of the claimant is appearing as an employee of management
No.1. It has been admitted by claimant also in crossexamination
that he was paid salary only by management No.1. So, this issue is
decided in favour of management No.2 and against claimant.
Issue No.2:
11. Ld. ARM argued that salary amounting to Rs.9,510/
was credited into the account of claimant by management No.1 on
05.08.2016 vide cheque No.000374. Before it, he was absent on 4 th
and 5th August, 2016. He worked on 06.08.2016. It was Sunday on
07.08.2016 and claimant was unauthorizedly absent from duty from
08.08.2016 onwards. The management had sent him letter dated
LIR No.1184/17 8/23
03.09.2016 to join back, but despite receipt of letter, he did not
respond. The management had sent letter dated 22.09.2016 to the
office of DLC, letter dated 06.10.2016 to SHO PS Daryaganj and
letter dated 09.01.2017 to the office of Assistant Labour
Commissioner intimating them that claimant was unauthorizedly
absent since 08.08.2016 and was not responding to join back duty
despite receipt of letter dated 03.09.2016. He further argued that the
claimant had filed a case in labour office against management No.1
where management No.1 had taken plea that it was ready to take him
back but he refused to join duty. In the evidence of M1W2, it has
come that management is ready to keep him back on duty but
without back wages. It shows that claimant had intentionally
abandoned the job w.e.f. 08.08.2016.
On the other hand, ld. ARW argued that claimant was
never absent from duty. His service was terminated on 08.08.2016.
The letter dated 03.09.2016 could not be delivered to claimant
because it was sent on wrong address. Cousin brother of the
claimant was working with management No.1 but despite it,
management No.1 did not collect correct address from him to send
the second letter to him. He further submitted that no offer was
given by management No.1 in the labour office to the claimant to
join back. Before this court also, the management No.1 did not
move any application that it was ready to retain claimant back on
LIR No.1184/17 9/23
duty.
12. Salary amounting to Rs.9,510/ for the month of July,
2016 has been proved to have credited in the bank account of
claimant, by ledger account Ex.M1W2/6. Envelope Ex.M1W2/3
was opened in the court during deposition of M1W2 and it was
found containing letter Ex.M1W2/2 dated 03.09.2016 in which it is
mentioned that the claimant was absent from office since 07.08.2016
without intimation and he was requested to join the office
immediately or to submit resignation as per rules. On that letter, the
address of the claimant is mentioned as "Shri Ajay Tiwari, S/o Shri
Janki Prasad Tiwari, House No. 462, 1st Pusta, BlockA, Gali No.7,
Sonia Vihar, New Delhi94". There is an endorsement by postal
authority on envelope Ex.M1W2/3 that the address was wrong. It
has been admitted by M1W2 that the letter could not be delivered to
the claimant as it was received back by management undelivered
with the report "wrong address". Due to nondelivery of letter dated
03.09.2016, it cannot be said that claimant was aware that the
management wanted to him to join back duty. That letter was never
received by him. Despite it, management No.1 wrote letters
Ex.M1W2/4, Ex.M1W2/5 and Ex.M1W2/6 dated 22.09.2016,
06.10.2016 and 09.01.2017 to the office of Deputy Labour
Commissioner, SHO PS Daryaganj and the office of Assistant
LIR No.1184/17 10/23
Labour Commissioner respectively mentioning wrong facts that the
letter dated 03.09.2016 was served upon claimant and that he had
not responded to join back. The endorsement, "wrong address",
made on envelope Ex.M1W2/3 is dated 30.09.2010. The letter
might have been received back undelivered to management on 1st or
2nd October, 2016. Despite it, it wrongly represented to SHO and
ALC that the letter was served upon claimant.
The initiation was taken not by management No.1 but
by claimant by sending demand notice Ex.WW1/3 dated 06.08.2016.
Ld. ARM argued that the demand notice was not received by
management No.1 because delivery report has not been placed on
record. The notice was sent to management No.1 vide postal receipt
Ex.WW1/4 dated 16.08.2016. It has been admitted by M1W2 that
the address of management No.1 mentioned on that notice was
correct one. As the notice was correctly addressed and sufficiently
stamped, it can be presumed that the same might have been
delivered to management No.1 within 23 days of the ordinary
course of business. Management No.1 had came into motion only
after receipt of that notice and dispatched the letter dated 03.09.2016
to the claimant. It does not have any explanation why it did not send
immediately a letter to him asking to join back.
To prove that it had given offer in labour office to
claimant to resume duty, the management No.1 did not place on
LIR No.1184/17 11/23
record proceedings of that office. In the absence of those
proceedings, it cannot be said that such offer was given to claimant.
Due to above reasons, it is held that claimant had not abandoned the
job of management No.1 w.e.f. 08.08.2016. This issue is decided in
favour of claimant and against management No.1.
Issue No.3:
13. Ld. ARM argued that it is the admitted position that
cousin brother of the claimant was still working with management
No.1 but he was not examined to prove to illegal termination. Ld.
ARW submitted that a worker of private company cannot depose
against the employer and if he does so, his service may be
terminated immediately.
It has been admitted by claimant in crossexamination
that his bua's son Sh. Ravi Narayan Tiwari was working with
management No.1. It was Sh. Ravi Narayan Tiwari who had got
him appointed with management No.1. It is also correct that the said
person has not been produced by claimant in witness box. But it is
also true that if an employee of a management deposes against it, the
only consequence would be dismissal from service. Had Sh. Ravi
Narayan Tiwari dared to appear in witness box against management
No.1, his service would also have been terminated. The only reason
of nonproduction of Sh. Ravi Narayan Tiwari is apprehension of
LIR No.1184/17 12/23
not only claimant but also of Mr. Tiwari that he would loss job if he
appeared in the witness box. So, there is reasonable explanation for
not examining Sh. Ravi Narayan Tiwari.
14. It is the consistent stand of claimant in statement of
claim and affidavit in evidence that his service was terminated
illegally by management No.1. On the other hand, the defence of
management No.1 is that he had abandoned the job w.e.f.
08.08.2016 by remaining unauthorizedly absent. That defence has
already been found false. Management's plea is not that it had
issued any notice or tendered notice pay and retrenchment
compensation to the claimant before terminating his service. So,
management No.1 had violated the provisions of Section 25F of the
I.D. Act, 1947 in terminating his service. This issue is decided in
favour of claimant and against management No.1.
Issue No.4:
15. About length of service, ld. ARW argued that claimant
had joined management No.1 in January, 2004 and his service was
terminated on 08.08.2016. On the other hand, ld. ARM argued that
claimant had given his resume dated 31.03.2009 to management on
which he was appointed and he joined on 01.04.2009 and worked till
06.08.2009. In support of length of service, the claimant is heavily
LIR No.1184/17 13/23
relying upon salary vouchers Mark W1 (collectively). The vouchers
have been objected to by ARM on the ground that those have gone
unproved because the originals were not produced. Those
documents were not confronted to M1W2 in crossexamination. In
last two vouchers, the year is not visible. He strongly relied upon
resume Ex.M1W2/1 dated 31.03.2009 of the claimant. He further
submitted that claimant has admitted in crossexamination that he
had passed 10th class as a regular student in 2006. He has also
admitted that he has passed 8th class from Delhi as a regular student.
Presence of a regular student is marked in the school. He cannot be
expected to work and study simultaneously as a regular student. On
the other hand, ld. ARW argued that resume was not confronted to
claimant in crossexamination to know whether it was bearing his
signature or not.
16. Particulars of the claimant are mentioned in resume
Ex.M1W2/1 dated 31.03.2009. But the resume was not put to the
claimant in crossexamination to know whether it was in his
handwriting and whether it was bearing his signature. There is no
report of any handwriting expert that the same is bearing the
signature of the claimant. Due to these reasons, resume Ex.M1W2/1
has gone unproved and is not helpful to management No.1 to prove
that claimant has joined it only on 01.04.2009.
The claimant is strongly relying upon salary vouchers
LIR No.1184/17 14/23
(5 in number) as Mark W1. The first voucher is dated 09.05.2008
and it is on the letter head of the management No.1. The second
voucher is dated 07.07.2006 and is on the letter head of management
No.1. The third voucher is dated 04.03.2005 and is bearing the
stamp of management No.1. That voucher is not free from doubt
because there is cutting on the year 2005. Years of last two
vouchers are not legible. The vouchers are not bearing the signature
of any person on behalf of management No.1. Those were not put to
M1W2 to know whether they were issued by management No.1 or
not. Hence, these vouchers cannot be taken as piece of evidence to
prove length of service.
It has been admitted by claimant in crossexamination
that he had passed 8th class from Delhi as a regular student. He
passed 9th class from his village Tikatiwari Purva, Sultanpur by
studying in Bhartia Uchchatar Madhyamik Vidyalaya, Pipri Sainath,
District Sultanpur as a regular student. Detailed marks card issued
by the Board of High School and Intermediate Education, UP is on
the file and is dated 25.05.2006. It is mentioned in DMC that he had
appeared as regular student in High School examination held in
March / April, 2006. As he was a regular student, he may have
taken admission in 10th class in April, 2005. Before taking
admission in 10th class, it has been admitted by claimant, he had
passed 9th class as a regular student. So, he had passed 9 th class in
LIR No.1184/17 15/23
March, 2005. Hence, he may have taken admission in 9th class in
April, 2004. It has been admitted by him in crossexamination that
he had passed 8th class from Delhi as a regular student. So, he may
have taken admission in 8th class in April, 2003. It means that from
April, 2003 to March, 2006, the claimant used to attend school
regularly. Such a person cannot be said to have done job
simultaneously.
17. Management No.1 has placed on record salary
statement of its employees from 01.10.2010 to 28.02.2017. It has
also filed the attendance register as Ex.M1W2/W1 from 01.10.2010
to 31.05.2017. In those registers, the name of the claimant is
appearing as an employee of management No.1. The management
No.1 was directed by this court to produce following service record
of its employees:
i. Attendance register from 01.01.2004 to 31.12.2009.
ii. Salary statement from 01.01.2004 to 30.09.2009.
It has been admitted by M1W2 in crossexamination
that he did not produce the directed record. Ld. ARW placed
reliance upon MCD Vs. Rajinder Singh Negi, 101 (2002) Delhi
Law Times 481, to argue that adverse inference be drawn against
management No.1 for not producing the documents despite direction
by the court. In the cited case, the labour court had directed MCD to
LIR No.1184/17 16/23
produce service record of its employees which it did not produce and
hence, adverse inference was drawn against it. In the case in hand, it
has already been established that claimant was a regular student
from April, 2003 to April, 2006, whereas his claim is that he had
joined the management in January, 2004. The attendance of a
regular student is marked in the school. If he fails to attend school
for requisite number of days, he cannot be allowed to take
examination. Being a regular student, it cannot be said that the
claimant had joined the management in January, 2004. Due to that
reason, no adverse inference is drawn against management No.1 for
not producing directed record. It has been admitted by management
No.1 in written statement that claimant had joined it on 01.04.2009.
On the strength of that admission, it is held that claimant had joined
management No.1 on 01.04.2009 and not in January, 2004. So,
length of service is taken from 01.04.2009 to 07.08.2016.
18. Even if service of a workman has been terminated
illegally, that would not automatically lead to reinstatement and
100% back wages. In Nehru Yuva Kendra Sangathan Vs. Union
of India & Ors. 2000 IV AD (Delhi) 709, Hon'ble Delhi High Court
dealt with the question of reinstatement and back wages and
observed in paragraphs 27 and 28 as under :
"27. We find from the decision of the
Supreme Court rendered in the 1970s and
LIR No.1184/17 17/23
1980s that reinstatement with back wages
was the norm in cases where the termination
of the services of the workman was held
inoperative. The decisions rendered in the
1990s, including the decision of the
Constitution Bench in the Punjab Land
Development and Reclamation Corporation
Ltd., Chandigarh seem to suggest that
compensation in lieu of reinstatement and
back wages is now the norm. In any case,
since we are bound to follow the decision of
the Constitution Bench, we, therefore,
conclude that reinstatement is not the
inevitable consequence of quashing an order
of termination; compensation can be awarded
in lieu of reinstatement and back wages.
28. Considering the facts of this case, we
are persuaded to award compensation in lieu
of reinstatement and back wages to the
workman"
19. In Municipal Council, Sujanpur Vs. Surinder
Kumar 2006 LLR 662, Hon'ble Supreme Court observed that the
relief of reinstatement is not automatic but is in the discretion of the
court. In paragraph 16, it was observed as under :
"Apart from the aforementioned error of law,
in our considered opinion, the Labour Court
and consequently the High Court completely
misdirected themselves insofar as they failed
to take into consideration that relief to be
granted in terms of section 11A of the said
Act being discretionary in nature, a Labour
LIR No.1184/17 18/23
Court was required to consider the facts of
each case therefor. Only because relief by
way of reinstatement with full back wages
would be lawful, it would not mean that the
same would be granted automatically".
20. In Vinod Kumar & others vs Salwan Public School &
others WP(c)5820/2011 dt.17.11.2014 Hon,ble Justice V.
Kameshwar Rao has held as under:
11. Having considered the rival submissions
of the counsels for the parties, I do not find
any infirmity in the order of the Labour
Court. It is a settled position of law that even
if termination has been held to be illegal,
reinstatement with full back wages is not to
be granted automatically. The Labour Court
is within its right to mould the relief by
granting a lumpsum compensation. In fact, I
note that the Labour Court has relied upon
three judgments propounding the law that the
Labour Court can mould a relief by granting
lump sum compensation; the Labour Court is
entitled to grant relief having regard to facts
and circumstances of each case.
12. Further, the Supreme Court in the
following judgments held as under:
(a) In the matter reported as Jaipur
Development Authority v. Ramsahai, (2006)
11 SCC 684, the court has stated:
"However, even assuming that there had been
a violation of Sections 25G and 25H of the
Act, but, the same by itself, in our opinion,
would not mean that the Labour Court should
LIR No.1184/17 19/23
have passed an award of reinstatement with
entire back wages. This Court time and again
has held that the jurisdiction under Section
11A must be exercised judiciously. The
workman must be employed by State within
the meaning of Article 12 of the Constitution
of India, having regard to the doctrine of
public employment. It is also required to
recruit employees in terms of the provisions of
the rules for recruitment framed by it. The
respondent had not regularly served the
appellant. The job was not of perennial nature. There was nothing to show that he, when his services were terminated any person who was junior to him in the same category, had been retained. His services were dispensed with as early as in 1987. It would not be proper to direct his reinstatement with back wages. We, therefore, are of the opinion that interest of justice would be subserved if instead and in place of reinstatement of his services, a sum of Rs 75,000 is awarded to the respondent by way of compensation as has been done by this Court in a number of its judgments."
(b) In the matter reported as Nagar Mahapalika v. State of U.P., (2006) 5 SCC 127, the court has stated:
"23. Noncompliance with the provisions of Section 6N of the U.P. Industrial Disputes Act, although, may lead to the grant of a relief of reinstatement with full back wages and continuity of service in favour of the retrenched workmen, the same would not mean that such a relief is to be granted LIR No.1184/17 20/23 automatically or as a matter of course. 25 .....The appellant herein has clearly stated that the appointments of the respondents have been made in violation of the provisions of the Adhiniyam. An appointment made in violation of the provisions of the Adhiniyam is void. The same, however, although would not mean that the provisions of the Industrial Disputes Act are not required to be taken into consideration for the purpose of determination of the question as to whether the termination of workmen from services is legal or not but the same should have to be considered to be an important factor in the matter of grant of relief. The Municipal Corporation deals with public money. Appointments of the respondents were made for carrying out the work of assessment. Such assessments are done periodically. Their services, thus, should not have been directed to be continued despite the requirements therefor having come to an end. It, therefore, in our considered view, is not a case where the relief of reinstatement should have been granted."
(c) In the matter reported as Talwara Coop. Credit and Service Society Ltd. v. Sushil Kumar, (2008) 9 SCC 486, the court has stated:
"8. Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section 11A of the Industrial Disputes Act, 1947 are required to strike a balance in a situation of LIR No.1184/17 21/23 this nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment viz. whether the appointment had been made in accordance with the statutory rules so far as a public sector undertaking is concerned, etc., should be taken into consideration."
(d) In the matter reported as Jagbir Singh v. Haryana State Agriculture Mktg. Board, (2009) 15 SCC 327, the court has stated :
"7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. ...
14. An order of retrenchment passed in violation of Section 25F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee."LIR No.1184/17 22/23
21. The claimant had gained an experience of about 7 years while working with management. He did not pinpoint any work place visited by him in connection with reemployment. Had he tried seriously, he would have definitely got job of equal status and salary. So, his deposition that he is jobless since termination is general and vague. It rules out the possibility of reinstatement.
Taking into account the length of service of 07 years and 04 months and last drawn salary of Rs.10,090/, a lumpsum compensation of Rs.1,75,000/ (Rupees One Lakh Seventy Five Thousand Only) is granted to the claimant. The management No.1 is directed to pay the said amount to him within a month from the date of publication of the award, failing which it shall be liable to pay interest on it @ 9 per cent per annum from today till its realization. Reference is answered accordingly. Award is passed accordingly.
22. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication. File be consigned to Record Room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 10.10.2017. PILOT COURT/POLCXVII KKD COURT, DELHI.
UMED Digitally signed by
UMED SINGH GREWAL
SINGH Location: Delhi
Date: 2017.10.10 23/23
GREWAL
LIR No.1184/17
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