Delhi District Court
Through vs M/S. Surya Enterprises on 26 August, 2021
IN THE COURT OF SHRI GORAKH NATH PANDEY,
ADDL. DISTRICT & SESSIONS JUDGE,
PRESIDING OFFICER : LABOUR COURT - IV,
ROUSE AVENUE COURTS : NEW DELHI.
LIR No.7511/2013
IN THE MATTER OF :
Sabbal Singh Negi,
S/o Sh. Anand Singh Negi,
R/o 1/16, Mayur Vihar, Phase-I,
Kotla, New Delhi.
Through:
Rajdhani Karamchari Union (Regd.),
8/56, Local Shopping Centre,
DDA Market, Dakshanipuri, New Delhi.
....WORKMAN/CLAIMANT
VERSUS
1. M/s. Surya Enterprises,
Leela Palace, Diplomatic Enclave,
Chanakya Puri, New Delhi.
2. M/s. EVA Facilities,
Leela Palace, Diplomatic Enclave,
Chanakya Puri, New Delhi.
3. M/s. The Leela Palace,
Diplomatic Enclave, Chanakya Puri,
New Delhi.
....MANAGEMENTS
Date of institution of the case : 10.12.2013
Date of final arguments : 25.08.2021
Date of passing the Award : 26.08.2021
LIR No.7511/2013 Page No.1/21
Sabbal Singh Negi vs. M/s. Surya Enterprises & Ors.
AWAR D
1. Vide this Award, I shall decide the Industrial Dispute
which was referred by Dy. Labour Commissioner, South-West
District on a complaint filed by the aforesaid claimant /workman
against the Management, vide reference no.
F.24(279)/13/SWD/Lab./8716-21 dated 07.10.2013, u/s 10(1)(c)
and 12 (5) of The Industrial Disputes Act, 1947, wherein the
following reference was to be answered :-
"Whether services of said Sh. Sabbal Singh
Negi have been terminated illegally and/or
unjustifiably by the management and if so,
to what relief is he entitled ?"
2. Notice of the reference was sent to the workman
who filed the statement of claim alleging therein that he was
appointed by management no.1 vide appointment letter dated
07.01.2011 as 'Vallet Parking Driver' since 17.01.2011 to
September, 2012 at Rs.9,955/- per month and both management
no.1 and 2 are engaged in the business of Facility Management
Services. The management no.3 was the principal employer. It is
alleged that the claimant was working sincerely and honestly
with the management and rendered unblemished services without
any complaint. It is alleged that management was not providing
legal facilities to the workman. It is further alleged that his ESI
and PF deductions were made and shown in salary slips but the
same were not deposited in his ESI and PF accounts and on his
repeated demands management denied the same. It is further
LIR No.7511/2013 Page No.2/21
Sabbal Singh Negi vs. M/s. Surya Enterprises & Ors.
alleged that on 28.03.2012, the claimant was
transferred/reappointed by management no.2 without any
information and his services were shown under management
no.2. It is further alleged that when he approached the
management for EPF, ESI and other legal benefits, his services
were terminated without any termination letter on 04.10.2012
and without paying earned wages and other benefits. Thereafter,
he sent a legal demand notice dated 03.08.2013 to the
management but the same was not replied. He also filed
complaint before the Conciliation Officer but it failed and the
matter was referred to Labour Commissioner. He also filed a
petition/application before Regional Provident Fund
Commissioner, Laxmi Nagar, Delhi on 14.08.2013 regarding
non-deposition of EPF amount deducted from his salary by
management no.1. He claims to be unemployed since his alleged
termination. It is submitted that the workman is unemployed
from the date of his illegal termination. It is prayed that an award
be passed in favour of workman and against management
directing the management 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 but since no one appeared on behalf of the
managements despite service, they were proceeded ex-parte vide
order dated 06.08.2014. Thereafter, the workman led ex-parte
evidence. Vide ex-parte Award dated 15.10.2014, the workman
LIR No.7511/2013 Page No.3/21
Sabbal Singh Negi vs. M/s. Surya Enterprises & Ors.
was reinstated with full back wages and continuity in service
alongwith other consequential benefits with management no.2.
4. The management challenged the ex-parte award
before the Hon'ble High Court of Delhi vide W.P. (C)
No.5095/2016. Vide order dated 11.09.2019 passed in the said
Writ Petition, the impugned order was set aside. In terms of the
directions issued by Hon'ble High Court, management no.2 has
filed its written statement on 16.10.2019.
In its written statement, the management no.2 has
taken preliminary objections that the answering management
company is carrying out its business from KB-2, Qutub Plaza,
DLF Phase-I, Gurgaon, Haryana-122002; this court has no
territorial jurisdiction to entertain the present statement of claims;
statements of claim deserves to be outrightly rejected since there
is no justification of the claim so raised after lapse of 10 months
from alleged termination dated 03.08.2013; the workman has
made a false claim on the basis that the termination took place on
04.10.2012 on the contrary, the workman on his own voluntarily
left the office of the management which is evident from the
demand notice dated 03.08.2013 alleged to be sent to the
management; the workman remained in the employment with the
answering management from 01.04.2012 i.e. for a period of 6
months and 4 days i.e. 184 days; the benefits as provided under
Section 25F of ID Act can not be granted to a workman who has
not been in continuous service for not less than one year or 240
LIR No.7511/2013 Page No.4/21
Sabbal Singh Negi vs. M/s. Surya Enterprises & Ors.
days with the employer preceding the date of his retrenchment.
Management no.2 denied all the averments of the claim of the
workman. The management lastly prayed to dismiss the claim.
5. Vide order dated 15.01.2020, the following issues
were framed in view of pleadings of the parties :-
ISSUES:
(1.) Whether this Court has territorial jurisdiction to try
and entertain the present case? OPW.
(2.) Whether the workman had worked for 240 days in a
year immediately preceding the date of his alleged termination?
OPW.
(3.) Whether the services of workman were terminated
illegally and/or unjustifiably by the management and if so, to
what consequential relief is the workman entitled for ? OPW.
(4) Whether the workman himself had left the job after
settling his dues in full and final with the management? OMP.
(5) Relief.
The case was, thereafter, fixed for evidence of
workman.
6. In order to discharge the onus and prove the issues,
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: Copy of appointment letter dated
17.01.2011 issued by management no.1 to the workman.
(ii) Ex.WW1/2: Copy of appointment letter dated
LIR No.7511/2013 Page No.5/21
Sabbal Singh Negi vs. M/s. Surya Enterprises & Ors.
28.03.2012 issued by management no.2 to the workman.
(iii) Photocopy of complaint dated 14.08.2013 made by
the workman to the Regional Provident Fund Commissioner is
Mark A.
(iv) Photocopies of salary slips of workman issued by
management are Mark-B.
7. As no other witness was examined by the workman,
the workman's evidence was closed vide order dated 06.02.2021
and the case was fixed for management's evidence.
8. In rebuttal, management no.2 had examined Ms.
Jyoti, AR who filed her affidavit by way of evidence as
Ex.M2W1/A, reiterating the factual contents of the written
statement of management on solemn affirmation. She also relied
upon the documents i.e. Ex.DW2/1 i.e. copy of Authority Letter
issued by management no.2 in her favour and Ex.DW2/2 i.e.
agreement dated 08.05.2012 executed between management no.2
and management no.3.
The evidence of management no.2 was thereafter
closed.
9. The Management no.3 has not led any evidence and
evidence of the management no.3 was closed on 12.03.2021 vide
separate statement of its AR.
10. I have heard the arguments on behalf of the parties
LIR No.7511/2013 Page No.6/21
Sabbal Singh Negi vs. M/s. Surya Enterprises & Ors.
and gone through the relevant materials lying on the record. Ld.
AR for the management no.2 also filed the written submissions in
support of contentions relying upon the judgments as under:-
(i) Anukampa Enterprises Versus M. M. Faridi, 2006
(Law Pack) (Del) 30852, passed in W.P. (C) No.9767/2005 by
Hon'ble High Court of Delhi;
(ii) New Delhi Municipal Council vs. Narender 2006,
(Law Pack) (Del) 31331, passed in W.P. (C) No.11462/2004 by
Hon'ble High Court of Delhi;;
(iii) Dhara vs. Presiding Officer & Ors. 2008 (1) SCT
127 (Del); and
(iv) ITC Ltd. vs. Presiding Officer, Labour Court & Ors.,
2006 (7), SLR 756.
11. My issue-wise findings are as under:-
ISSUE NO.1:-
"Whether this Court has territorial jurisdiction to try and
entertain the present case? OPW".
This issue was framed in view of the contention of
management no.2 in the written statement. Admittedly, the
workman/claimant was serving the management no.3 at Delhi
and the reference in question is made by the Appropriate
Authority at Delhi.
As held in para 6 of the judgment titled Pritam Singh
vs. The Presiding Officer, Labour Court reported as (1994) 106
PLR 359 :-
LIR No.7511/2013 Page No.7/21
Sabbal Singh Negi vs. M/s. Surya Enterprises & Ors.
"It is undisputed that the provisions of the Industrial Disputes
Act are silent regarding territorial jurisdiction. There is no
provisions under the Act dealing either with the cause of action
or indicating factors which will confer jurisdiction on the
appropriate Govt. to refer dispute under Section 10 of the Act.
The provisions of this Act are also silent regarding the factors
which will confer the territorial jurisdiction upon the Tribunal
or the Labour Court constituted thereunder except by
necessary implication from the provisions of Section 2 (a) (ii)
of the Act that the appropriate State Govt. is competent to
make reference to the Labour Court or the Tribunal in relation
to any Industrial disputes other than figuring in clause (i) of
this Section".
After examining and referring various
pronouncements, it was further noted in para 14 that -
"Consequently in view of the law laid down by the Apex Court
as well as the Two Division Benches of this Court referred to
above there is no escape but to conclude that situs of the
employment where the worker was employed and the order of
dismissal of his service, suspension or retrenchment was
received would determine the appropriate Govt. competent to
make reference under Section 10 and not head office of the
company from where the said order was issued".
12. As per Ranga Vilas Motors v Shri Ranga Vilas
Motors Pvt. Ltd., [AIR 1967 SC 1040] :
"Consequently the situs of the workman's employment in the
case of the termination of his service is patently a paramount
factor if not being wholly conclusive. It is within the area of
employment that the order of termination operates and the
workman ceases to be a workman and loses his right to hold
the post and received wages therefore. Therefore, on the anvil
of the principle of where the impugned order operates the situs
of employment of the workman is patently significant. Can it
possibly be said that the order of termination of a workman
does not operate within the area of his employment? The
answer, therefore, has to be in favor of the Tribunal having
territorial jurisdiction over the place of work or the situs of
employment."
LIR No.7511/2013 Page No.8/21
Sabbal Singh Negi vs. M/s. Surya Enterprises & Ors.
In G. S. Batra v R.N. Mehrotra, 2004 LLR 445, the
head office of management was situated at Bangalore but the
employee was posted at Delhi and the cause of action had arisen
at Delhi. The Court held that the Tribunal at Delhi shall have the
jurisdiction because the services of the workman were terminated
in Delhi and cause of action had arisen in Delhi.
In view of the above referred judgments, this court
has territorial jurisdiction to entertain the present matter. The
issue No.1 is accordingly decided in favour of the workman and
against the management.
ISSUE NO.2:
"Whether the workman had worked for 240 days in a year
immediately preceding the date of his alleged termination?
OPW".
13. The onus to prove this issue was on the workman.
The workman has claimed that he was employed by the
management no.1 as Vallet Parking Driver since 17.01.2011 and
he was reappointed by management no.2 on 28.03.12;
management no.3 is the principal employer. It is further claimed
that the services of the workman was terminated on 04.10.12
without any termination letter. The witness was cross-examined
by the management no.2 wherein he admitted that
"It is correct that on 28.03.12, the appointment letter
was issued by management no.2 to me. It is correct
that no written objection was ever raised by me
towards transfer or reappointment from management
LIR No.7511/2013 Page No.9/21
Sabbal Singh Negi vs. M/s. Surya Enterprises & Ors.
no.1 to management no.2. It is correct that on
04.10.12, I was terminated by management no.2. It
is correct that on 03.08.13 for the first time, I sent
legal notice to the management. It is correct that I
did not send any legal demand notice immediately
after my termination".
In the cross-examination by management no.3, the
witness deposed as under:-
"It is correct that appointment letter was issued to
me by management no.1. It is also correct that my
salary was paid to me by management no.1. It is
correct that I was not ('not' appears to be
inadvertently not written during cross-examination
in view of the suggestion put by the management
no.3) terminated by management no.3. It is also
correct that ESI and PF were paid by management
no.1. It is also correct that I had a knowledge that
management no.1 and 2 were the contractors of
management no.3."
The witness has not produced any documentary
proof regarding his employment with the management no.1 or 2
continuously for the period as claimed in statement of claim. The
workman further failed to prove that he worked with
management no.1 or 2 for the period claimed by him in statement
of claim or for a period of 240 days prior to the alleged
termination of his services by the management no.1 or 2 on
04.10.12 or that he was regular employee of the management
no.1 or 2.
14. In Range Forest Officer v. S.T. Hadimani, 2002 (93)
LIR No.7511/2013 Page No.10/21
Sabbal Singh Negi vs. M/s. Surya Enterprises & Ors.
FLR 179 (SC), the Hon'ble Supreme Court held that it was then
for the claimant to lead evidence to show that he had in fact
worked for 240 days in the year preceding his termination. Filing
of an affidavit is only his own statement in his favour and that
cannot be regarded as sufficient evidence for any Court or
Tribunal to come to the conclusion that a workman had, in fact,
worked for 240 days in a year. No proof of receipt of salary or
wages for 240 days or order or record of appointment or
engagement for this period was produced by the workman. On
this ground alone, the award is liable to be set aside.
31. In Rajasthan State Ganganagar S. Miils Ltd. v. State
of Rajasthan and another, 2004 (4) LLN 845; Municipal
Corporation, Faridabad v. Siri Niwas, 2004 LLR 1022
(SC): 2004 (4) LLN 785 and Madhya Pradesh
Electricity Board v. Hariram, 2004 (4) LLN 839: 2005
LLR 1 (SC), the Hon'ble Supreme Court reiterated the
principle that burden of proof lies on the workman to
show that he had worked continuously for 240 days in
the preceding one year prior to his alleged retrenchment
and it is for the workman to adduce an evidence apart
from examining himself to prove the factum of his
being in employment of the employer.
32. In Surendranagar District Panchayat and Anr. v.
Jethabhai Pitamberbhai, 2006 LLR 250 the Hon'ble
Supreme Court held that when the workman apart from
examining himself in support of his contention has not
produced any proof in the form of receipt of salary or
wages for 240 days or record of his appointment or
engagement for that year to show that he has worked
with the employer for 240 days to get the benefit under
section 25F of the Industrial Disputes Act, in the
absence of evidence on record the Labour Court and the
High Court have committed an error in law and fact in
directing reinstatement of the respondent-workman.
LIR No.7511/2013 Page No.11/21
Sabbal Singh Negi vs. M/s. Surya Enterprises & Ors.
15. In R.M. Yellatti v. The Asst. Executive Engineer, JT 2005 (9) SC 340: 2006 LLR 85 (SC), the decisions referred to above were noted and it was held as follows:
"Analyzing the above decisions of this court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the tribunal to draw an adverse inference against the management."
16. In Ravi N. Tikoo v. Deputy Commissioner (S.W.) & Ors., 2006 II AD (DELHI) 560 our own Hon'ble High Court observed as under:-
"At this stage, it becomes necessary also to know that LIR No.7511/2013 Page No.12/21 Sabbal Singh Negi vs. M/s. Surya Enterprises & Ors.
extent to which the workman is required to prove his case in the light of the absence of non-traverse by the management and lack of any defence before the industrial adjudicator. Such issue can be examined in the light of the provisions of Order 8 Rules 5 & 10 of the Code of Civil Procedure and the principles of law laid down thereunder. Even if the respondent has not appeared before the court, the court has to exercise discretion as to the manner in which further proceedings should take place. The court would examine the allegations made by the claimant and the material placed on record, and if fully satisfied, would proceed to answer the reference in favour of the workman."
"However, the basic principle being that where, a claimant comes to court, he must prove his case, cannot be whittled down even in a case, where, no respondent appears. The court having called upon claimant to lead its evidence would be required to look at the case set up by the claimant, which would include the pleadings and evidence in support and evaluate the same and be satisfied that the case set up by the claimant has been adequately established."
"It is settled law that the party seeking a claim and adjudication has to prove its case before the court. Merely because, the respondent or the defendant has chosen to remain absent from the proceedings before the court or the tribunal, it does not follow that the consequence has to be a judgment or an order in favour of the claimant without any further proof of its contentions. A claim could be required to be proved by cogent and reliable evidence."
17. No doubt that claimant has examined himself as WW-1 vide his affidavit Ex.WW-1/A, wherein, he has claimed that he worked with the managements no.1 and 2 for the said period and his services have been illegally terminated by the managements no.1 and 2 on dated 04.10.12. The claimant has failed to bring on record any cogent documentary evidence to LIR No.7511/2013 Page No.13/21 Sabbal Singh Negi vs. M/s. Surya Enterprises & Ors. prove that he worked in the management no.1 or 2 since 17.11.2011 till 04.10.12 continuously for a period of 240 days prior to the alleged termination of his services on 04.10.12. The workman did not work continuously for the period of 240 days neither with management no.1 or management no.2 at all prior to his alleged termination of his services on 04.10.12. Neither the testimony of the claimant nor any of the documents relied / produced by him are sufficient to hold that the claimant had worked in the management no.1 or 2 as regular employee for the said period, as claimed by him in the statement of claim or for a period of 240 days prior to the alleged termination of his services on 04.10.12. Therefore, this court is of the considered opinion that the self serving affidavit Ex.WW-1/A of claimant and the documents relied by him are not sufficient to conclude that claimant had worked in the managements no.1 and 2 for the period as claimed by him or for a period of 240 days in the management. Issue No.2 is accordingly decided against the workman and in favour of managements.
ISSUE NO.3 AND 4"(3) Whether the services of workman were terminated illegally and/or unjustifiably by the management and if so, to what consequential relief is the workman entitled for ? OPW.
(4) Whether the workman himself had left the job after settling his dues in full and final with the management? OPM".
LIR No.7511/2013 Page No.14/21Sabbal Singh Negi vs. M/s. Surya Enterprises & Ors.
18. The onus to prove the issue no.3 was on the workman whereas the issue no.4 was to be proved by management as this issue was framed in view of the contention of the management no.2 in the written statement. The management witness/M2W1 deposed by way of affidavit that the workman voluntarily left the management. There is no deposition at all regarding the witness in respect of the settlement of any dues by the workman with the management nor any document in this regard has been filed to prove the contention. The workman claimed that he was terminated from his services on 04.10.12 orally without payment of earned wages/legal benefits. The management no.2 in reply to the claim of the workman stated that his services was never terminated and he left on his own. The management no.2 has not issued any letter or notice/reminder to the workman to join his duties at all. During crossexamination of the workman nothing was asked by the management to the effect that he left the job on his own as claimed by the management no.2 and the testimony of the workman in this respect remained unimpeached. No further step by way of enquiry was taken by the management no.2. No show cause notice etc. were served upon the workman herein. The abandonment cannot be assumed.
19. The Division Bench of The Hon'ble Delhi Court in Shakuntala's Export House (P) Ltd Vs. Secretary (Labour), LIR No.7511/2013 Page No.15/21 Sabbal Singh Negi vs. M/s. Surya Enterprises & Ors. MANU/DE/0541/2005 has held that abandonment amounts to misconduct which requires proper inquiry. The judgment of the Single Judge was upheld by the Division Bench is reported as 117 (2005) DLT 479. To the same effect is another judgment in MCD Vs. Begh Raj 117(2005) DLT 438 laying down that if the workman had abandoned employment, that would be a ground for holding an enquiry and passing an appropriate order and that having not been done, the action of MCD could not have been sustained.
20. In M/s Fateh Chand vs Presiding Officer Labour Court & Anr., 2012 LLR 468 Delhi, our own the Hon'ble High Court observed that the management has to bring on record sufficient material to show that the employee has abandoned the service and abandonment cannot be attributed to the employee without there being sufficient evidence. On failure to report for duty, the management has to call upon the employee and if he refuses to report, then an enquiry is required to be ordered against him and accordingly action taken. In the absence of anything placed on record by the petitioner management, no presumption against the respondent can be drawn. It was held to be a case of violation of Section 25F of the Act.
21. In MCD vs Sukhbir Singh, 1994 ILR 332, in case of abandonment of service, it was held that the management was LIR No.7511/2013 Page No.16/21 Sabbal Singh Negi vs. M/s. Surya Enterprises & Ors. duty bound to conduct an inquiry. Reference in this regard may also be made to Shakuntala Export House (P) Ltd. vs P.O. Labour Court X & Anr. 117(2005) DLT 479.
22. In the case of Shiv Dayal Soin and Sons vs,. The Presiding Officer, Labour Court in LPA 801/2002 decided on 20.12.2007, the Division Bench of the Hon'ble Delhi High Court has held in para 11 thereof which is as follows: "However, it is pertinent to note that a mere accusation that the Workers had abandoned their jobs is not enough to accept the said imputation, degree of proof required to establish abandonment of service, is rather strict and the management in this case has failed miserably to discharge the said burden of proof..."
23. In Shiv Dayal Soin and Sons (supra) also relied upon in Buckingham and Carnatic Co. vs. Venkatiah AIR 1964 SC 1272 it was observed:
"abandoning or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf and thus whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstances of each case".
24. Observation of the Hon'ble Supreme Court in the case of G. T. Lad v. Chemical and Fibres of India Ltd., reported in (1979) 1 SCC 590 throws great deal of light on this aspect, The Court noted as under:
"5a. Re Question 1: In the Act, we do not find any definition of LIR No.7511/2013 Page No.17/21 Sabbal Singh Negi vs. M/s. Surya Enterprises & Ors.
the expression 'abandonment of service.' In the absence of any clue as to the meaning of the said expression, we have to depend on meaning assigned to it in the dictionary of English language. In the unabridged edition of the Random House Dictionary, the word 'abandon' has been explained as meaning 'to leave completely and word 'abandon' has been explained as meaning 'to leave completely and finally; forsake utterly; to relinquish, renounce; to give up all concern in something'. According to the Dictionary of English Law by Earl Jowitt (1959 Edn.) 'abandonment' means 'relinquishment of an interest of claim'. According to Black's Law Dictionary 'abandonment' when used in relation to an office means 'voluntary relinquishment.' It must be total and under such circumstances as clearly to indicate an absolute relinquishment. The failure to perform the duties pertaining to the office must be with actual imputed intention, on the part of the officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the party, and is a question of fact. Temporary absence is not ordinarily sufficient to constitute an 'abandonment of office'."
25. The workman claimed that his services were terminated on 04.10.12 without assigning any reason. The workman has relied upon the relevant documents referred above in support of the claim. There is no document on record placed by the management to show that workman was issued any notice/charge sheet for non joining his duties or subsequent enquiry was made against him. The workman on the other hand placed on records the legal notice issued to the management no.2. Merely bald averments/assertions are not sufficient to prove the contentions by the management no.2 that workman had abandoned the management no.2.
26. It is reiterated that the workman examined himself LIR No.7511/2013 Page No.18/21 Sabbal Singh Negi vs. M/s. Surya Enterprises & Ors. as WW1 and deposed regarding the claim. The witness has also proved the relevant documents as above said. The management no.2 admitted the employment of workman. As noted, no inquiry has been made by the management in the matter as well. 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. As held in 'Workmen of Motipur Sugar Factory Pvt. Ltd Vs Motipur Sugar Factory' reported in AIR 1965 SC 1803:
"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 property held (see Indian Iron & Steel Co. v. Workmen) 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, Phulbari Tea Estate v. Workmen, and Punjab National Bank Limited v. Workmen. These three cases were further considered by this Court in Bharat Sugar Mills Limited v. Jai Singh, and reference was also made to the decision of the Labour Appellate Tribunal in Ram Swarath Sinha v. Belsund Sugar Co. 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 LIR No.7511/2013 Page No.19/21 Sabbal Singh Negi vs. M/s. Surya Enterprises & Ors.
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 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."
It is reiterated that in this case no steps were taken by the management no.2 at all nor the management no.2 proved any reason of termination of workman.
27. In view of the aforesaid discussions, it cannot be said that the workman abandoned his job with the management no.2. The management no.2 herein has not been able to discharge its onus to show that the workman had abandoned the job by remaining absent. The workman succeeded in proving that his services were illegally terminated by the management no.2. Issue No.3 is decided in favour of the workman whereas Issue no.4 is decided against the managements.
LIR No.7511/2013 Page No.20/21Sabbal Singh Negi vs. M/s. Surya Enterprises & Ors. ISSUE NO. 5:
Relief:-
28. The claimant has failed to prove on record that he worked either with the management no.1 or 2 continuously for the period of 240 days prior to the alleged date of his termination on 04.10.12. In view of the findings of the court on Issue no.2, the claimant is not entitled to get any relief. Issue no.5 is decided in favour of managements and against the workman. The present statement of claim filed by the workman is accordingly dismissed. Reference is answered accordingly.
29. Copy of the order be also sent to the Registrar General, Hon'ble High of Delhi in compliance of order dated 11.09.2019 passed in W.P. (C) No.5095/2016.
30. Attested copy of the award be sent to the Office of the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules and judicial file be consigned to Record Room after compliance of necessary legal formalities. The award be also uploaded on server (www.delhicourts.nic.in).
Announced in the open court (Gorakh Nath Pandey) on 26.08.2021 Addl. District & Sessions Judge Presiding Officer Labour Court- IV Rouse Avenue District Courts.
LIR No.7511/2013 Page No.21/21Sabbal Singh Negi vs. M/s. Surya Enterprises & Ors.