Delhi District Court
New Delhi-110035. ... vs M/S. Taj Trade & Transport Co. Ltd on 1 March, 2011
IN THE COURT OF SHRI T. S. KASHYAP :
PRESIDING OFFICER : LABOUR COURT-XIX : KARKARDOOMA
COURTS : DELHI.
LIR No. 953/06 (Old No. I.D. 338/03)
Unique Case I.D. No. 02402C0155442003
VIRNDER KUMAR SHARMA
S/o Late Sh. Manohar Lal
R/o H. No. 2008/157, Tri Nagar,
New Delhi-110035. ...................Claimant/Workman
Vs.
M/S. TAJ TRADE & TRANSPORT CO. LTD.
Taj Palace Hotel, Sardar Patel Marg,
Diplomatic Enclave, New Delhi-110020.
Also at : Mandlik House, Mandlik Road,
Mumbai-400001.. ..............................Management
Date of Institution of case : 01.07.2003
Date of reserving for award : 15.02.2011
Date of pronouncement of award : 01.03.2011
Ref No. F.24 (4567)/2002/Lab./4179-83, dated 10.06.2003
A W A R D (ORAL)
Having satisfied regarding existence of an industrial dispute
LIR No. 953/06 (Old No. I.D. 338/03) 1 of 21 pages
between the parties, the Secretary (Labour), Government of NCT of Delhi in
exercise of powers conferred by section 10(1)(c) and 12 (5) of the Industrial
Disputes Act, 1947 (hereinafter referred as 'Act'), r/w Govt. of India,
Ministry of Labour Notification No. S-11011/2/75/DK (IA), dated
14.04.1975, referred the present dispute to the Labour Court No. V for
adjudication with the following terms of reference:
"Whether the retrenchment of Sh. Virender Kumar
Sharma S/o Late Sh. Manohar Lal Sharma is illegal
and/or unjustified and if so, to what relief is he
entitled and what directions are necessary in this
respect?"
2. On service of notice of reference, the workman filed statement of
claim with the prayer for passing an award in his favour and against the
management with direction to the management to reinstate him back in
service with continuity of service alongwith full back wages with further
prayer that the retrenchment order issued by the management be cancelled
and declared null and void alongwith cost of litigation. It has been submitted
by the claimant/workman that he was appointed as a Secretary on
31.01.1981 in General Exports Department and was demoted from the
Secretary to Typist and remained on the said post from May, 1982 to August
1988 and thereafter, he was promoted from Typist to Documentation
Assistant from September 1988 to December 1992 and was again promoted
as Documentation Officer from January 1993 till March 1999 and then
promoted as Executive Stores from April 1999 till 31.05.2002 when he was
terminated by way of retrenchment from the service by close of the working
hours of 31.05.2002. He received letter dated 31.05.2002, whereby his
LIR No. 953/06 (Old No. I.D. 338/03) 2 of 21 pages
service was retrenched. He has alleged that Sh. Ved Prakash, junior to him
in Stores Department was still working as Stores Executive whereas his
services were terminated in violation of principle of 'LAST IN FIRST GO'.
According to the claimant/workman, he was performing duty of preparing
various reports in computer like (RR) receiving report, Goods Inward
Report, Shop Transfer Note and also Shop Return Requisition (Manually).
He was also doing all types of manual work such as buying stationary for
various departments/shops as per their requirements and distribute the same.
He also prepared export documents as per foreign exchange regulation act
and sent the same to the Chief Accountant for his signatures, sold the goods
at Taj Khazana Counter to the customers, prepared the attendance tally
(Store Department), put the tags on the goods and did inventory work at Taj
Khazana Shop during the night time, etc., etc. He was not signing authority
and always reported his work to his seniors. He has alleged that the
management had issued termination letter dated 31.05.2002 which clearly
shows that his service was terminated by way of retrenchment which is
absolutely wrong, unjustified, unwarranted, unlawful and baseless because it
was violative of provisions of the 'Act', inter-alia many workmen junior to
him were still working with the management; that there was no allegation
against the workman and the termination by way of retrenchment is void in
the eyes of law; that order of termination by way of retrenchment is an
example of colourable exercise of powers vested in the management as the
management has exercised its powers in arbitrary way opposed to the public
policy and violative of Article 14 and 16 of the Constitution of India; that
the management has violated provisions of section 25 F and 25 G of the
'Act'; that no seniority list as required under rule 76 of the Industrial
Disputes (Central) Rules was ever displayed; that there was no reduction of
LIR No. 953/06 (Old No. I.D. 338/03) 3 of 21 pages
its work and its revenue; that the employees of the company were
transferable and thus entire company was to be treated as one
establishment/Industrial Establishment and therefore, no retrenchment could
be effective without taking proper permission of the appropriate
Government as more than 100 employees were working with the
management; that termination letter dated 31.05.2002 was discriminatory,
eye wash and sham in the eyes of law and that he had sent legal demand
notice dated 18.07.2002 through regd. post demanding reinstatement with
continuity of service and full back wages but no reply was received from the
management. He also sent a letter through regd. post to Mr. Ratan Tata,
Chairman of Taj Group of Hotels and Mr. Krishan Kumar, Managing
Director but no reply was received. Thereafter, he filed claim before
Assistant Labour Commissioner and has remained without job since the date
of said illegal retrenchment. Hence the claim.
3. The management has contested the claim by filing written-
statement taking preliminary objections that the claimant was admittedly
posted as Executive Stores on 31.05.2002 and was performing managerial
job of supervision of stores and thus was not a 'workman' as defined u/s. 2(s)
of the 'Act'; that services of the claimant were retrenched by the
management as existing strength of Executive Stores was found to be excess
than the actual requirement, thus the Executive Stores found surplus were
retrenched; that claimant has accepted an amount equal to 15 days salary for
each completed year of service put in him by way of ex-gratia, besides the
other legal dues payable to him; that the claimant has also withdrawn his
terminal benefits such as PF and gratuity on his own and having accepted
the same unconditionally, without any demur, the claimant is estopped from
resiling from the same.
LIR No. 953/06 (Old No. I.D. 338/03) 4 of 21 pages
On merits also, it has been submitted that the claimant/workman
was not a workman as per section 2(s) of the 'Act'. He was working as
Executive Stores since April 1999 till 31.05.2002 and was not performing
duty of workman and therefore, retrenchment was legal and justified as he
was junior most Executive Stores. Sh. Ved Prakash was promoted as
Executive Systems on 17.09.2001 and during the period April 1999 till
31.05.2002, the claimant never performed the alleged job of preparing of
reports, receiving reports, Goods inward report, shop transfer note, shop
return requisition, buying stationary, its distribution, preparation of export
documents, sold goods. preparation of attendance tally, putting tags on
goods, doing inventory work, reporting to seniors, and therefore,
retrenchment letter dated 31.05.2002 was legal and justified. According to
the management, no person junior to the claimant was working in the
department and no outside agency has been contacted for the job of the
claimant. The allegation of colourable exercise of powers by the
management has been denied. It has been claimed that although, claimant
was not a workman still by way of abundant precaution, he was paid the
retrenchment compensation. It has been submitted that 'LAST IN FIRST
GO' principle was followed. The seniority list of employees was disclosed
every year. The management never employed 100 or more employees in the
establishment and provisions of chapter V of the 'Act' were not attracted.
The management admits the receipt of demand letter and it has been
submitted that the claim be dismissed with compensatory cost.
4. The claimant/workman also filed rejoinder controverting the
pleas taken by the management in written-statement and reiterating those as
made in the statement of claim. On pleadings of the parties my the then Ld.
Predecessor framed issues on 31.05.2004 as follows :
LIR No. 953/06 (Old No. I.D. 338/03) 5 of 21 pages
1.Whether the claimant falls within the definition of workman u/s. 2 (s) of the I.D. Act, 1947?
2. Whether the services of the claimant were terminated for sufficient reasons as claimed by the management?
3. Relief in terms of reference.
No other issue arose or pressed.
5. In support of his claim, workman appeared as WW1 and tendered affidavit Ex.WW1/A relying on documents Ex. WW1/1 to Ex. WW1/32 and Mark A and Mark B and examined WW2 Sh. Bahadur Singh from Employees Provident Fund Organization who tendered affidavit Ex. WW2/1 and WE was closed.
On behalf of the management, MW1 Sh. Pankaj Khanna tendered affidavit Ex. MW1/X relying on documents Ex. M1 to Ex. M3 and MW2 Sh. Ved Prakash, Executive Stores tendered affidavit Ex. MW2/A and ME was closed on 18.09.2010.
6. I have heard oral submissions from Ld. ARs for the parties and also gone through the written-arguments filed from both sides as well as the evidence on record and my findings on the issues are as under :
ISSUE NO. 17. The onus to prove this issue was not placed by my Ld. Predecessor on either party. The workman has been defined u/s. 2(s) of the 'Act' as under:
"workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or LIR No. 953/06 (Old No. I.D. 338/03) 6 of 21 pages implied, and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-
(i)who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii)who is employed in police service or as an officer or other employee of a prison, or
(iii)who is employed mainly in a managerial or administrative capacity, or
(iv)who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
In authority reported as'Arkal Govind Raj Rao Vs. Ciba Geigy of India Ltd., AIR 1985 SC 985', Hon'ble Supreme Court has laid down "where an employee has multifarious duties and a question is raised whether he is a workman or someone other than a workman, the court must find out what are the primary and basic duties of the person concerned and if he is incidentally asked to do some other work, may not necessarily be in tune with the basic duties, these additional duties cannot change the character and status of the person concerned. In other words, dominant purpose of employment must be first taken into LIR No. 953/06 (Old No. I.D. 338/03) 7 of 21 pages consideration and the gloss of some additional duties must be rejected while determining the status and character of the person."
In the authority reported as 'Management of Sonepat Co- operative Sugar Mills Ltd., Vs. Ajit Singh, 2005, Vol. 1 LLJ 1122, SC', it was held that "the question as to whether the employee has been performing a clerical work or not is required to be determined upon arriving at a finding as regard the dominant nature thereof."
In authority reported as 'Mar Baselius Medical Mission Hospital Vs. Joseph Babu, 2007 LLR 411', Hon'ble Kerela High Court has laid down that "it is the nature of the duty which is determining factor, but not designation".
On behalf of the workman, it was submitted by Ld. AR that the workman through his affidavit Ex. WW1/A has corroborated the averments as made in the claim and duties performed by him were of a workman but no suggestion was put to him in the cross-examination that he was performing administrative and/or managerial duties and he has denied that he was performing supervisory duties. The workman has also testified that even when he was Executive Stores, he used to prepare documents and there was no Documentation Officer. He never used to oversee the work of other Typists and the management has failed to prove on record that the claimant/workman was performing supervisory duties or had administrative, managerial or financial powers. According to Ld. AR for the workman, entire job performed by the workman was clerical and his designation did not reflect the nature of powers conferred on him which in fact, he had never exercised nor such powers were conferred on him.
Ld. AR for the management however submitted that the LIR No. 953/06 (Old No. I.D. 338/03) 8 of 21 pages documents Ex. M1 (colly) proved by the management establish on record that the workman was performing supervisory duty as on 31.05.2002. During the period from April 1995 till 31.05.2002, he did not perform any duty as claimed by him in his affidavit. The claimant has not produced any document in respect of his contention and admitted in his cross-examination that his job as a Typist was to prepare the documents relating to exports and to type the documents. He was not competent to sign or execute those documents and only used to type them. He used to do the same work when he was documentation officer and as Executive Stores, he used to prepare the documents as there was no documentation officer. There were only 4 to 5 employees with the designation of Typist in the entire management and he affirmed that he was a Typist who used to type export document and therefore, it was submitted that admittedly typing of documents were done by the Typists and the claimant was handling export related issues of the management. MW1 in his cross-examination has stated that letter dated 07.08.1999 was issued to RBI on behalf of the management for approval of export and claimant Sh. V. K. Sharma was authorized by the management to obtain approval from RBI. MW1 admits that the claimant used to deposit relevant documents with Central bank of India or other appropriate authority with respect to exports made by the management. MW1 also stated that document No. 6 of Ex. M1 bears signatures of the workman at portion 'X' which was signed by the workman on behalf of Shipper which is the management company. Therefore, it was submitted that the documents Ex. M1 (colly) show that the claimant was supervising and signing the export documentation on behalf of the management company. Withdrawal of shipment, signing for General Manager in document 2 of Ex. MW1 (colly), giving authority to consignee to declare the contents of shipping bills filed LIR No. 953/06 (Old No. I.D. 338/03) 9 of 21 pages by them on behalf of the management, calling for the pertinent export related document from consignee, dealing with international consignee on behalf of the management, signing marine declaration forms at the behest of the company, dealing with customs department, etc. The work profile itself reveals the managerial nature of work performed by the claimant. Vide Ex. MW1/X5, he sanctioned 1 day wages of employees working under him. Vide Ex. MW1/X6, he sanctioned their compensatory offs. Vide Ex. MW1/X8, Ex. MW1/X9, Ex. MW1/X7, Ex. MW1/X10, total payable days were sanctioned by the claimant. Vide Ex. WW1/17, he was to handle all export related issues and MW1 has stated that the workman had inherent power to sanction leave in absence of his seniors. The store staff used to work under the workman and Satya Khanna, Sangam Lal, Bhim Bahadur and Dalipdhari, etc., were few such staff and therefore, claimant was not a workman.
In his affidavit Ex. WW1/A, the claimant/workman has admitted that he was promoted as Executive Stores from April 1999 and remained in the said post till 31.05.2002 and performed duties of preparing various reports in computer like (RR) receiving report, Goods Inward Report, Shop Transfer Note and also Shop Return Requisition (Manually). He was also doing all types of manual work such as buy stationary for various departments/shops as per their requirements and distribute the same. He also prepared export documents as per foreign exchange regulation act and send the same to the Chief Accountant for his signatures, sold the goods at Taj Khazana Counter to the customers, prepared the attendance tally (Store Department), put the tags on the goods and did inventory work at Taj Khazana Shop during the night time, etc., etc., in addition to job of preparing of reports, receiving reports, Goods inward report, shop transfer LIR No. 953/06 (Old No. I.D. 338/03) 10 of 21 pages note, shop return requisition, buying stationary, its distribution, preparation of export documents, sold goods. preparation of attendance tally, putting tags on goods, doing inventory work, reporting to seniors. However, in his cross-examination, he stated that his job as a Typist was to prepare the documents relating to exports and to type documents and he was not competent to sign or execute those documents but only used to type them. At the time, when he was Documentation Officer, he used to do the same work. When he was Executive Stores, he also used to prepare the documents as there was no Documentation Officer. WW1 testified that there were 4 to 5 employees with the designation of Typist and it was correct that it was Typist who used to type export documents. He never used to over see the work of other Typists. He denied the suggestion that he used to supervise the work of other Typists. WW1 was not confronted with the other documentary evidence Ex. M2 (colly) nor any suggestion was given to him in his cross-examination that he was performing any administrative, managerial or other supervisory duty. The documents Ex. M2 (colly) with which the claimant/workman was not confronted, cannot be read against him.
In the cross-examination, MW1 Sh. Pankaj Khanna has admitted that workman did not have power to promote anyone. MW1 could not say without checking the record as to whether workman had power to take disciplinary action against his subordinates but he added that the workman had inherent powers to recommend disciplinary action against his subordinates. However, neither MW1 nor Ld. AR for the management has demonstrated as to how the claimant/workman had any inherent power when no such powers have been specified in the letter of appointment and the nature of duties. MW1 admits that workman did not have any power to LIR No. 953/06 (Old No. I.D. 338/03) 11 of 21 pages sign cheques. He claimed that workman was dealing with financial activities of the company and his signatures were got attested from Central Bank, to be registered with RBI as reflected in document No. 11 of Ex. M1 (colly) but he submitted that he need to check the records as to whether the management had written any letter to Central Bank prior to document No. 11 of Ex. M1 (colly). He has not produced any such letter and tenor of the letter/document No. 11 of Ex. M1 (colly) does not show that any financial power was vested on the workman. Such letter could be delivered to any Clerk authorizing him for the purpose mentioned in the letter. Signing of document No. 6 of Ex. M1 (colly) does not show that the claimant/workman had any administrative, managerial or supervisory powers as any person could be so authorized by the management. MW1 could not tell as to who had typed contents of document No. 8 of Ex. M1 (colly) and presence of signatures of claimant/workman herein does not mean that he was not a 'workman'. MW1 was unable to admit or deny the suggestion that the document was typed by the workman himself. However, he admitted that the said document was signed by the workman. Similarly, he could not admit or deny that document No. 9 of Ex. MW1 (colly) was written by the workman himself but added that this document was signed by workman in portion 'X'. MW1 admitted that Mrs. Sarita Bakshi named in this document was senior to the workman. MW1 could not admit or deny that Sh. Ashutosh Tandon named in the document No. 12 of Ex. M1 (colly) was Chief Accountant but he admitted that Ms. R. Srinivasan was General Manager. MW1 admits that the workman used to be posted for sale organized at night also. MW1 could not admit or deny that workman used to conduct counter- sales also. MW1 stated that S/Sh. Satya Khanna, Sangam Lal, Bhim Bahadur and Dalipdhari etc., were working under the workman/claimant but LIR No. 953/06 (Old No. I.D. 338/03) 12 of 21 pages he sought adjournment to check his office record to tell their present designation and failed to state their designation even on the adjourned date. On the next date, even after checking the record, witness stated that old record preceding date of document No. 11 of Ex. M1(colly) was not available. Therefore, the management has failed to prove on record that the claimant was holding administrative/managerial or supervisory powers, as such it cannot be said that he was not a workman as defined u/s. 2(s) of the 'Act'. Issue is accordingly, decided in favour of the workman and against the management.
ISSUE NO. 28. The onus to prove this issue was also not placed by my Ld. Predecessor on either party. However, it is admitted fact that Sh. Ved Prakash was one of the juniors to the claimant and he was still in the employment of the management but according to the management, he was posted as Executive 'Systems' on 17.09.2001 and was in different department, whereas, the claimant was posted as Execute Stores as on 31.05.2002 and existing strength of Executive 'Stores' was found to be excess than the actual requirement, thus the Executive Stores found surplus were retrenched. On behalf of the workman, it has been submitted by Ld. AR that admittedly, Sh. Ved Prakash was junior to the workman and there was no department of Executive 'Systems' and creation of such department and transfer of Sh. Ved Prakash to Systems department had been manoeuvred in order to discriminate and terminate the services of workman. Moreover, the seniority list which was already tendered by the management in the case of "Sarla Kaul Vs. Taj Trade & Transport Co. Ltd.," in the court of Ms. Renu Bhatnagar, Ld. POLC, Karkardooma Courts, Delhi, shows that seniority of said Sh. Ved Prakash was shown below the claimant/workman LIR No. 953/06 (Old No. I.D. 338/03) 13 of 21 pages herein but the management has illegally issued corrigendum to justify its stand. The said corrigendum has been issued only to conceal its malafide design in order to terminate service of the workman which was illegal. He submitted that MW1 in his cross-examination, stated that inadvertently the list which was filed in the court of Ms. Renu Bhatnagar was the list issued before the corrigendum. MW1 brought the seniority list on 09.12.2009 and this list was not bearing the the name of Sh. Ved Prakash in Stores department. MW1 filed the document Ex. MW1/X3 dated 02.011.2001 which reads as under:
"It has been brought to our attention that the seniority list circulated on 01.11.2001 erroneously incorporates the name of Mr. Ved Prakash ticket No. 880 at serial No. 12 under Stores Department whereas he is Executive Systems. Accordingly the rectification need to be carried out and the seniority list of Stores and Systems Department w.e.f. 17.09.2001 and the same need to be read as under :
Deptt.- Stores S. No. T. No. Name Designation DOJ Grade 1 28 Mahender Pal Sharma Sr. Store Asst. 16/03/79 S2 2 92 Bhim Bahadur Attendant 21/08/79 S1 3 151 Tilak Raj Executive 29/08/79 M1 4 307 V.K. Sharma Executive 31/01/81 M2A 5 322 Dilip Dhari Attendant 04/03/81 S1 6 444 Usha Sharma Sr. Stores Asst. 15/10/83 S2 7 503 Sudhir Bhatnagar Manager Stores 26/03/84 M3A 8 675 S. Rajeshwari Stores Asst. 01/04/87 S2 9 698 Urvashi Panwar Sr. Stores Asst. 01/08/87 S2 10 727 Sangam Lal Attendant 30/11/87 S1 LIR No. 953/06 (Old No. I.D. 338/03) 14 of 21 pages S. No. T. No. Name Designation DOJ Grade 11 807 Sarla Kaul Sr. Stores Asst. 10/10/88 S2 12 981 Jayshree Joshi Supervisor 21/05/90 M1 13 1111 Satya Khanna Stores Asst. 01/01/93 S2 14 1229 Manju Lata Stores Asst. 21/04/93 S2 15 1145 Lakhan Lal GUW 23/07/93 S1 16 1380 Mahindra Dasora Stores Asst. 01/10/96 S2 17 2025 Chandra Prakash Data Entry Oper. 10/11/99 S1 Deptt. - Systems S. No. T. No. Name Designation DOJ Grade 1 671 Ajay Awasthi Sr. Executive 09/02/87 M2A 2 795 Surinder Kumar Jr. Executive Systems 01/08/88 M1 3 880 Ved Prakash Executive Systems 21/04/89 M1 He submitted that Ex. MW-1/X3 shows that the seniority list was revised w.e.f. 17.09.2001 and as per document Ex. MW-1/X3, Sh. Ved Prakash was transferred from Store Department to the Systems Department on 17.9.2001 and this document Ex. MW1/X3 is contradictory to the documents filed by the management Ex. MW1/X7, Ex. MW1/X9 and Ex. M W1/X10 wherein both were working in Stores Department. The documents filed by the management Ex. MW1/X7, Ex. MW1/X9 and Ex. MW1/X10 show that Sh. Ved Prakash was working in the Stores Department as Executive Stores upto 22.05.2002 and therefore, it is apparent that transfer of Ved Prakash was shown by the management malafidly on 17.09.2001. So the shifting of Sh. Ved Prakash from Stores Department to the Systems Department on 17.09.2001 as shown in the document Ex. MW1/X3 is unbelievable and not sustainable in the eyes of law. He further submitted LIR No. 953/06 (Old No. I.D. 338/03) 15 of 21 pages that this document Ex. MW1/X3 was prepared by the management to cover up the lacuna by way of forging the document Ex. MW1/X3 and therefore, revised seniority list cannot be believed. It is established that workman/claimant Sh. V.K. Sharma was senior to Sh. Ved Prakash. He also submitted that there were more than 100 employees working with the management and the management has not taken permission from the appropriate Government as required under chapter V of the 'Act' and therefore, the retrenchment of the workman by the management was illegal.
He submitted that the workman had accepted the payments under protest and has withdrawn PF and encashed the cheque to utilize money for his sustenance which is normal conduct and every unemployed person would have done so.
On behalf of the management, it was submitted by Ld. AR that no one junior to the claimant was employed or retained in the establishment of the management Sh. Ved Prakash is not working as Stores Executive. He was promoted as Executive Systems on 17.09.2001, and never handled the work of the claimant. He produced himself in the evidence and proved the fact that he was working in the Systems Department and his seniority and promotions were reckoned in the Systems Department. He further proved that after his transfer to the Systems Department, whenever there was shortage of workmen in the Stores Department, he was deputed to work in the Stores Department. During such deputation, his attendance was marked in the Stores Department. His being deputed to work for some time in the Stores Department would not make him a regular employee of Stores Department when his regular cadre was Systems Department. Thus Sh. Ved Prakash was neither in the cadre of the claimant at the time of his retrenchment nor junior to him in his cadre. No unfair labour practice has LIR No. 953/06 (Old No. I.D. 338/03) 16 of 21 pages been perpetuated by the management. The seniority list was duty displayed on the notice board every year. Ld. AR for the management also submitted that management was registered under the Delhi Shops & Establishment Act and no manufacturing activity was/is done in the management. The document showing the same is Ex. M2 and in the absence of any manufacturing activity, provisions of Chapter V-B of the 'Act' are not attracted and therefore, there was no requirement of taking prior permission of the Government. Therefore, retrenchment of the workman who had admittedly received dues was for sufficient reasons and valid.
WW1 has testified that the management had to follow the principle of 'LAST IN FIRST GO' in the matter of retrenchment. Sh. Ved Prakash was junior to him and was still working in the Stores Department on the same post. Although, he continued to work in the Stores Department but the workman has been retrenched in violation of principle of 'LAST IN FIRST GO'. He testified that he was in service w.e.f. 31.01.1981 till 31.05.2002 whereas Sh. Ved Prakash has completed only 12 years of service and he was still working with the management on the same post. In his cross-examination, he denied the suggestion that there were many employees junior to him who were working at the time of retrenchment and he had never seen any seniority list being put up by the management from time to time. Although, WW1 in his cross-examination has admitted that he does not know if M/s. Taj Trade Transport is registered under the Shops & Establishment Act but MW1 has proved the document Ex. M2 which is certificate of registration under Delhi Shops & Establishment Act, 1954, from which it is established that the management is not an 'industry' as defined in the 'Act'. However, no suggestion was given to the workman in his cross-examination that Sh. Ved Prakash was not junior to him or that Sh.
LIR No. 953/06 (Old No. I.D. 338/03) 17 of 21 pages Ved Prakash was not posted as Executive Stores in the Stores Department where the workman was posted on the date of his retrenchment.
MW1 Sh. Pankaj Khanna through his affidavit Ex. MW1/X has testified that no employee junior to the claimant has been employed or retained in the establishment of the management and Sh. Ved Prakash is not working as Stores Executive but he was promoted as Executive Systems on 17.09.2001 and he never handled the work of claimant.
MW2 Sh. Ved Prakash through his affidavit Ex. MW2/A has testified that he was appointed as Executive on 21.04.1989 with the management and was posted in the Stores Department and worked under the supervision and control of the claimant till 16.09.2001. MW1 Sh. Pankaj Khanna in his cross-examination has also admitted that as per record brought by him, Sh. Ved Prakash was appointed on 21.04.1989 whereas workman was appointed on 31.01.1981. MW1 has also admitted that Sh. Ved Prakash continued to work with the management but he denied the suggestion that Sh. Ved Prakash was working as Stores Executive in the Stores Department at the time of termination of service of the workman. He admitted that inadvertently, the seniority list which was filed in the case of 'Sarla Kaul Vs. Taj Trade & Transport Co.' before the court of Ms. Renu Bhatnagar, Ld. POLC, Karkardooma, Delhi, was the list issued before the corrigendum. Copy of corrigendum is Ex. MW1/X3. According to MW1, Sh. Ved Prakash was not in the Stores Department on 01.11.2001 but was in the Systems Department.
A perusal of document Ex. MX2 (the seniority list) shows that name of workman Sh. V. K. Sharma appears at S. No. 4, T. No. 307 with designation Executive, date of joining 31.01.81, whereas, this list does not show the name of Sh. Ved Prakash. This list also does not show the date LIR No. 953/06 (Old No. I.D. 338/03) 18 of 21 pages when it was prepared or when it was issued or circulated. Even there is no date under the signatures of officer/official nor his full name and designation has been disclosed but in the document Ex. MW1/X3 (which is the corrigendum) the date has been mentioned as 02.11.2001 and in this document, name of the claimant/workman Sh. V. K. Sharma has been shown in the table of Deptt. Stores at S. No. 4, T. No. 307 with designation Executive and date of joining as 31.01.81 and name of Sh. Ved Prakash has been shown in the table of Deptt. Systems at S. No. 3, T. No. 880 with designation Executive Systems and date of joining as 21.04.89. Therefore, the genuineness of the corrigendum Ex. MW1/X3 appears to be in doubt. Sh. Ved Prakash was admittedly junior to the workman more than 8 years. No order has been proved on record to show the date when the Systems Deptt. was created, when Sh. Ved Prakash was transferred and why Ex. MX-2 was filed without any date of issue, without any date, name and designation of the officers. Therefore, it creates doubt that Sh. Ved Prakash was transferred to Systems Department on 17.09.2001 otherwise his name should have been shown in document Ex. MX-2. The document Ex. MW- 1/X3 was issued on 02.11.2001. The document Ex. MW-1/X4 dated 17.09.2001 has not been proved by the management by examining Mr. Bharat N. Gandhi, Authorized Signatory of the document nor the original endorsement regarding official issue of this document has been proved. If Sh. Ved Prakash had been so transferred then his name should have been reflected on document Ex. MX-2 also. It appears that the corrigendum was issued by the management in order to cover its lapse and show that transfer of Sh. Ved Prakash as Executive Systems was genuine. Even otherwise, the manner in which Sh. Ved Prakash has been shown to have been transferred to Systems Department does not inspire confidence because admittedly the LIR No. 953/06 (Old No. I.D. 338/03) 19 of 21 pages claimant was senior to him about more than 8 years and after showing the transfer of Sh. Ved Prakash from Stores Department on 17.09.2001, the management conducted the exercise of assessing man power/staff strength on 09.11.2001 as per Ex. WW-1/3 within two months to show surplus staff in the Stores Department in order to justify the retrenchment of workman otherwise there was no other reason to terminate him. Since the provisions of chapter V of the Industrial Disputes Act were not attracted in view of the fact that the management was registered under the Shops and Establishment Act and was not an industry as defined in clause (m) of Section 2 of Factories Act, the management was not required to take permission from the Government. However, the retrenchment of the workman was violative of principle "LAST IN FIRST GO" as Sh. Ved Prakash was still in the employment of the management who was more than 8 years junior to the workman. Therefore, issue is decided in favour of workman and against the management.
ISSUE NO. 39. In view of my findings, on the above issue, termination of the services of the workman by way of retrenchment was illegal and unjustified. The workman through his affidavit has testified that he was unemployed since the date of alleged retrenchment and in his cross-examination nothing has come on record to believe that he was employed elsewhere. The management has not led any evidence to prove that the workman was gainfully employed. The contention 'that the workman had received ex- gratia payment and withdrawn PF etc., and therefore, he is not entitled for any relief', has no merit because the workmen has received compensation and ex-gratia payment under protest and otherwise also he has right to receive the payment offered by the management including PF etc. LIR No. 953/06 (Old No. I.D. 338/03) 20 of 21 pages Therefore, termination/retrenchment of workman by the management vide letter dated 31.05.2002 is held to be null and void. The workman is therefore, entitled for reinstatement in service along with back wages. However, since the workman has not contributed to the business of the management since the date of his retrenchment, in my considered view interest of justice shall be met if he is granted 50 % back wages with continuity of services and consequential benefits.
Accordingly, management is directed to reinstate the workman back in service and to pay him back wages @ 50 % of last drawn wages with continuity of service and consequential benefits within 30 days from the date of publication of this award failing which management shall have to pay interest @ 12 % per annum on the outstanding dues till the date of actual payment. However, management shall be entitled to adjust the payment made to workman at the time of retrenchment, as per rules.
10. Reference is answered accordingly. Copy of award be sent for publication. File be consigned to Record Room.
Announced in the open court on 01st Day of March 2011.
(T. S. KASHYAP)
PRESIDING OFFICER, LABOUR COURT-XIX
KARKARDOOMA COURTS, DELHI
LIR No. 953/06 (Old No. I.D. 338/03) 21 of 21 pages