Delhi District Court
Through vs M/S. Tiger 4 Security & Detective India ... on 3 May, 2023
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
PRESIDING OFFICER, LABOUR COURT-IX
ROUSE AVENUE COURTS COMPLEX, NEW DELHI
LIR No. 557/17 CNR No. DLCT13-001792-2017
Sh. Dinesh Kumar
S/o Sh. Panna Lal
R/o 14-15, Gali No. 2, C-Block
Bhagya Vihar, Rani Khera, Delhi-81
Through:
Delhi Dalit Mazdoor Vikas Sangathan (Regd. No. 4290)
CB-6, Ring Road Narayana
New Delhi-110028, Mob No. 9811486877 ......Workman
Versus
M/s. Tiger 4 Security & Detective India Pvt. Ltd.
Corporate office: 7, Lower Ground Floor
L.S.C. B-1, Vasant Kunj
New Delhi-70 ......Management
Date of Institution : 10.02.2017
Date of Award reserved on : 27.04.2023
Date of Award : 03.05.2023
REFERENCE U/SEC. 10(1) (C) AND 12(5) OF INDUSTRIAL
DISPUTE ACT, 1947 R/W GOVT. OF NCT OF DELHI,
LABOUR DEPARTMENT NOTIFICATION NO.
LIR No. 557/17
Dinesh Kumar Singh v. M/s. Tiger 4 Security & Detective India Pvt. Ltd. Page 1 of 26
F.1/31/616/Estt./2008/7458 DATED 3rd MARCH 2009
AWAR D
BRIEF FACTS AND REASONS FOR DECISION :-
1. Vide this Award the present reference petition referred by the Deputy Labour Commissioner, District SouthWest, Govt. of the National Capital Territory of Delhi shall be disposed which was referred by appropriate Government/Office of Labour Commissioner arising between the parties.
2. The present statement of claim was filed by the workman submitting that workman was working at the post of "Security Guard" on salary of Rs.6,000/- per month since one year. Legal facilities like ESI, PF, bonus, appointment letter, attendance card, attendance register, leave book, payslip, double overtime, annual and festival leave etc. were not provided to the workman by the management. When the workman demanded the above legal facilities then management got annoyed and has illegally terminated the services of the workman on 01.08.2014. Salary for the month of July was also not paid. The workman is a regular and permanent employee having rendered more than 240 days of LIR No. 557/17 Dinesh Kumar Singh v. M/s. Tiger 4 Security & Detective India Pvt. Ltd. Page 2 of 26 service in a year. No seniority list was prepared by the management, no notice was given, notice pay was also not paid. Any show cause notice or charge-sheet was not issued nor any domestic inquiry was conducted against him. The termination of workman is illegal and in violation of Section 25F, 25G and 25H of Industrial Disputes Act, 1947 r/w Rule 76, 77 and 78 of Industrial Dispute (Central) Rules, 1957. The workman is not gainfully employed since 01.08.2014 which is so pleaded at para no. 7 of the statement of claim and at para no. 10 of evidence by way of affidavit Ex.WW1/A. The management did not reinstate the workman despite service of demand notice dated 28.12.2015. Hence the workman has prayed for reinstatement in service with continuity and full back wages with all consequential benefits alongwith cost of the claim.
3. In the written statement, it is submitted by the management that the workman had voluntarily left his job who had quarrelsome behaviour. He was found sleeping, absent and careless in his duty who was orally warned by the management and thereafter he was transferred by inspector of the management on 30.06.2014 at another ATM in Delhi at Swarn Vihar Park, New Delhi. He was found absent on 01.07.2014. He did not pick up the LIR No. 557/17 Dinesh Kumar Singh v. M/s. Tiger 4 Security & Detective India Pvt. Ltd. Page 3 of 26 phone of the inspector. The workman came to the office of the management and handed over his resignation letter to the officials of the management. He was paid ESI vide no. 1114296875 and PF no. DLCPM 41078/13008. The statement of claim is filed by the Delhi Dalit Mazdoor Vikas Sangthan who does not have valid legal authorisation from the workman and who was never recognised by the management as representative of the workman. It is denied that workman had made demand for legal facilities from the management and hence it is prayed that claim filed by the workman may be dismissed.
4. Rejoinder/Replication is filed by the workman in which workman has reaffirmed the averments made in the claim and denied the averments of the management.
5. On the pleadings of the parties and averments made following issues are framed in the case on 25.08.2017:
1. Whether services of workman Dinesh Kumar were terminated by management M/s. Tiger 4 Security & Detective India Pvt. Ltd. illegally and unjustifiably?
OPW
2. Relief.
LIR No. 557/17 Dinesh Kumar Singh v. M/s. Tiger 4 Security & Detective India Pvt. Ltd. Page 4 of 266. Workman/Sh. Dinesh Kumar Singh has got examined himself as WW-1 being the sole witness in the case who has relied on documents i.e. Ex.WW1/1 to Ex.WW1/4. WE was closed on 09.07.2018 vide separate statement of AR for workman. On 12.12.2022, ME was closed by the order of the Court/this Tribunal.
7. Final arguments are heard on behalf of parties present and record perused.
8. The issue-wise findings are as follows:-
9. ISSUE NO. 11. Whether services of workman Dinesh Kumar were terminated by management M/s. Tiger 4 Security & Detective India Pvt. Ltd. illegally and unjustifiably?
OPW 9.1 The burden of proof of the present issue is on the workman who had deposed as WW1. It is deposed that he has worked with the management since May 2013 and it is denied that he was getting the benefit of ESI and PF. However management has pleaded that it had given ESI and PF to the workman vide ESI no. 1114296875 and PF no. DLCPM 41078/13008. Suggestion is given to the WW1 that the workman has left the services LIR No. 557/17 Dinesh Kumar Singh v. M/s. Tiger 4 Security & Detective India Pvt. Ltd. Page 5 of 26 voluntarily. The management has put to workman Mark MW1 in original where the workman had deposed that it does not bear his writing, signatures and thumb impression. After looking at Mark MW1 it is noted on the face of it that the pen which is used for signing the document and the body in which letter is written are in different ink. It is denied by WW1 that he has settled his full and final dues with the management. It is noted that in Mark MW1 no date of resignation is given. The alleged resignation was accepted on 25.08.2014 which is mentioned in red pen on the document. However who has accepted the resignation is not mentioned. Mark MW1 is unproved document which is again doubtful on the face of its denial by the workman and that it does not bear the date of resignation. Resignation is not accepted on the alleged date of absence on 01.07.2014 and why resignation was not accepted on the same date of tender. What for management was waiting for all these days. For all these reasons Mark MW1 appears to be doubtful and management has not proved this document by leading its evidence and ME was closed by the order of the Court on 12.12.2022 despite grant of many opportunities. Management has pleaded, that workman was transferred to SBI ATM situated at Swarn Vihar Park, Delhi, at para no. 3 of written statement. However no such transfer order is brought on record or that the LIR No. 557/17 Dinesh Kumar Singh v. M/s. Tiger 4 Security & Detective India Pvt. Ltd. Page 6 of 26 transfer order was brought into notice of workman. If the transfer was given to the workman then workman must have notice of it to put liability of absence on the workman. The management has pleaded that the inspector of management on 30.06.2014 had transferred the workman. The name of the inspector is not disclosed and how the transfer was communicated to the workman is not proved on record. The visiting inspector is not brought in evidence nor the pleadings are proved by the management that the visiting inspector had called the workman on phone to which allegedly no reply was given by the workman. In para no. 4 of written statement it is pleaded that the workman came to office of management and handed over resignation to the officials of the management. It is not disclosed that who was the official to whom the resignation was tendered and on what date it was tendered. Hence giving of resignation by the workman in the month of July remains unproved on record. It is not the case of the management that the workman did not work till 30.06.2014 with the management. The management has not given any show cause notice to the workman for his alleged found sleeping, absence and carelessness in his duty and only bald and vague allegations were made against the workman by the management. Even the date when the oral warning was issued is not mentioned nor its place and the person who gave LIR No. 557/17 Dinesh Kumar Singh v. M/s. Tiger 4 Security & Detective India Pvt. Ltd. Page 7 of 26 a warning is not disclosed. The duty roster of the workman should have been produced in view of his frequent transfer on 30.06.2014 and 01.07.2014. Merely pleading without any supporting document and evidence cannot be believed.
10. The workman has pleaded that he was not receiving ESI and PF whereas management has disclosed that by such account number the workman is getting such facilities. In cross- examination also the workman has denied it. The fact to be noted is that the management must prove that it had brought to the notice of workman providing of such ESI and PF facility. No such proof of notice is produced by the management and therefore it cannot be said that even when such legal facilities were provided to the workman by the management then the workman had any knowledge of such provisions. The providing of such facility and absence of such knowledge of the workman can stand together as the single truthful fact. The muster roll of the workman is not produced by the management on record for absence of workman since 01.07.2014 whereas the resignation of the workman was accepted as Mark MW1 on 25.08.2014. The muster roll must have been signed under the signature of the workman u/Sec. 25D of Industrial Disputes Act, 1947. WW1 had deposed that his services LIR No. 557/17 Dinesh Kumar Singh v. M/s. Tiger 4 Security & Detective India Pvt. Ltd. Page 8 of 26 were terminated in the night of 01.05.2014 whereas in the statement of claim the workman has pleaded that his services were terminated on 01.08.2014. In the same cross-examination it is deposed by WW1 that he does not remember if he had performed duty at SBI ATM Swarn Vihar Park, Delhi on 01.07.2013. However issue under hand is the alleged date of termination on 01.08.2014. Now the workman has improved his alleged date of termination to 01.05.2014 from 01.08.2014 in evidence which was not confronted to him by the management in cross-examination with para no. 4 of evidence by way of affidavit Ex.WW1/A. Thereby keeping in view the consistent plea in pleading and in evidence by way of affidavit that the date of termination of workman is 01.08.2014 then recording of 01.05.2014 in deposition of WW1 dated 09.07.2018 is taken as typographical error. Hence the date of termination is taken as 01.08.2014 only.
10.1 In such circumstances of the case it is seen that there was no reason with the workman not to continue in his employment. The resignation Mark MW1 is unproved on record. The vague allegation made by the management against the workman of work inefficiency shows that the management was not on good terms with the workman during his employment and it had motive to LIR No. 557/17 Dinesh Kumar Singh v. M/s. Tiger 4 Security & Detective India Pvt. Ltd. Page 9 of 26 illegally terminate the services of the workman which is substantiated by making such vague allegations against the workman. It is settled law that abandonment of service was to be proved by the management and the burden of proof of abandonment lies on the management. This was also law laid down in the case titled Eagle Hunter Solutions Limited. v. Sh. Prem Chand (Supra) 2018 LLR 1171 in W.P.(C) 9786/2018 & CM Nos. 38128-29/2018, dated 17.09.2018 at para no. 8, 9 and 10 wherein it is laid down that the onus to prove abandonment of job is on the employer. The employer must produce positive evidence of abandonment for example written communication with the workman to join his duties. The sole statement in evidence of abandonment which is controverted by the workman are not suffice to make out the case of abandonment. Animus to abandon must be shown to have exists before the date of case of abandonment is made out. The relevant para are reproduced hereasunder :
8. Operating, as I am, within the limited peripheries of certiorari jurisdiction, I do not find any manifest error in the impugned award of the Labour Court, as would warrant interference by me under Article 226 of the Constitution of India. At the cost of reiteration, it may be mentioned that the position, in law, is well settled that the onus to prove abandonment is on the employer. Mere filing of affidavit alleging that the workman had abandoned the services is entirely insufficient to discharge the said onus. That apart, the affidavit filed by MW-
1, too, only referred to the respondent having been offered LIR No. 557/17 Dinesh Kumar Singh v. M/s. Tiger 4 Security & Detective India Pvt. Ltd. Page 10 of 26 employment by the petitioner, during the course of the conciliation proceedings. Even on that aspect, MW-1, the only witness of the respondent, was, at best, ambivalent, confessing that it was not possible for him to state whether any written communication had been served on the respondent or not. He neither produced any record, to support his plea of abandonment, as set up by the petitioner, nor sought time to produce any such record.
9. That apart, it was necessary for the petitioner to succeed in its case, to prove that the respondent had abandoned his services on 8th February, 2012. Even it was to be shown that thereafter, during conciliation proceedings, an offer of employment was extended to the respondent, that would not have sufficed to establish a case of abandonment, by the respondent, of his services, on 8th February, 2012.
10. In view thereof, I had pointedly queried, of learned counsel for the petitioner, as to whether there was any material to indicate that the respondent had abandoned his services on 8th February, 2012. His only reliance, in this connection, is to the deposition of the respondent, during cross-examination on 16th August, 2016, in which he states that he "left the management on 01.03.2012". This sole statement, in my view, cannot suffice to make out a case of "abandonment" by the respondent, of the services of the petitioner especially as, in his cross- examination before the Labour Court, the respondent expressed his willingness to re-join the services of the petitioner even at that stage.
Animus to abandon, it is well-settled, must necessarily be shown to exist, before a case of abandonment can be said to have been made out. No evidence, of any such animus on the part of the Respondent No.1, is forthcoming in the present case.
10.2 No show cause notice was issued by the management to LIR No. 557/17 Dinesh Kumar Singh v. M/s. Tiger 4 Security & Detective India Pvt. Ltd. Page 11 of 26 the workman to join back his duty. Nor any chargesheet was issued to the workman for any misconduct pleaded by the management. The workman has claimed his termination on 01.08.2014 whereas management has claimed that workman did not come to join his duty in the month of July and handed over his resignation. The valid absence of workman is not proved by the management on record by non production of muster roll required to be maintained by the management u/Sec. 25D of Industrial Disputes Act, 1947 and hence the management has failed to substantiate that workman did not come in the month of July. It creates doubt if the management at all prepared the attendance register of workman. The relevant citation in this regard is reproduced hereasunder:
In the case titled Director, Fisheries Terminal Division v. Bhikubhai Meghajibhai Chavda AIR 2010 SC 1236. The relevant para is reproduced hereasunder:
14) Section 25B of the Act defines "continuous service". In terms of Sub section (2) of Section 25B that if a workman during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer 240 days within a period of one year, he will be deemed to be in continuous service.
The respondent claims he was employed in the year 1985 as a watchman and his services were retrenched in the year 1991 and during the period between 1985 to 1991, he had worked for a period of more than 240 days. The burden of proof is on the respondent to show that he had worked for 240 days in preceding twelve months prior to his alleged retrenchment. The law on this issue appears to be now well settled. This LIR No. 557/17 Dinesh Kumar Singh v. M/s. Tiger 4 Security & Detective India Pvt. Ltd. Page 12 of 26 court in the case of R.M. Yellatty vs. Assistant Executive Engineer [(2006) 1 SCC 106], has observed :
"However, applying general principles and on reading the aforesaid 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 up 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 earners, there will be no letter of appointment of termination. There will also be no receipt of proof of payment. Thus in most cases, the workman (the claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment of termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case."
15) Applying the principles laid down in the above case by this court, the evidence produced by the appellants has not been consistent. The appellants claim that the respondent did not work for 240 days. The respondent was a workman hired on a daily wage basis. So it is obvious, as this court pointed out in the above case that he would have difficulty in having access to all the official documents, muster rolls etc. in connection with his service. He has come forward and deposed, so in our opinion the burden of proof shifts to the employer/appellants to prove that he did not complete 240 days of service in the requisite period to constitute continuous service. It is the contention of the appellant that the services of the respondent were terminated in 1988. The witness produced by the appellant stated that the respondent stopped coming to work from February, 1988. The documentary evidence produced by the appellant is contradictory to this LIR No. 557/17 Dinesh Kumar Singh v. M/s. Tiger 4 Security & Detective India Pvt. Ltd. Page 13 of 26 fact as it shows that the respondent was working during February, 1989 also. It has also been observed by the High Court that the muster roll for 1986-87 was not completely produced. The appellants have inexplicably failed to produce the complete records and muster rolls from 1985 to 1991, inspite of the direction issued by the labour court to produce the same. In fact there has been practically no challenge to the deposition of the respondent during cross-examination. In this regard, it would be pertinent to mention the observation of three judge bench of this court in the case of Municipal Corporation, Faridabad Vs. Siri Niwas [(2004) 8 SCC 195], where it is observed:
"A Court of Law even in a case where provisions of the Indian Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against this contentions. The matter, however, would be different where despite direction by a court the evidence is withheld."
16) It is not in dispute that the respondent's service was terminated without complying with the provisions of Section 25F of Industrial Disputes Act. Section 25G of the Act provides for the procedure for retrenchment. The section reads-
"25G. Procedure for retrenchment.- Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman."
The labour court based on the pleadings and evidence on record has come to the conclusion that the services of some LIR No. 557/17 Dinesh Kumar Singh v. M/s. Tiger 4 Security & Detective India Pvt. Ltd. Page 14 of 26 of the employees junior to the respondent was continued after the respondent was discharged from its duties. The dates of joining of some of the fellow employees of the respondent like Mohanbhai, Kalubhai and Nanjibhai were not produced by the appellants. The appellants have clearly failed to prove that the services of no junior employee was continued when the services of the respondent was terminated. Thus, the procedure laid down in Section 25G has also not been followed. The findings on facts by the labour cannot be termed as perverse and need no interference.
10.3 The onus of abandonment of service has shifted on the management. The resignation Mark MW1 is not proved on record. In July the workman was on the rolls of the management. The transfer of workman is not proved as record by the management nor any document is proved to show by which duty was assigned to workman. Hence management has failed to discharge onus shifted on it and workman is held to have been illegally and unjustifiably terminated from service on 01.08.2014.
10.4 The workman has failed to show violation of Section 25G of Industrial Disputes Act, 1947 as the burden of proof is on the workman first to prove that there was such category of person as "Security Guard" by designation who were so categorized and their seniority list was prepared. He has also to prove that where he stood in such seniority list. In such circumstances of the case, it is LIR No. 557/17 Dinesh Kumar Singh v. M/s. Tiger 4 Security & Detective India Pvt. Ltd. Page 15 of 26 held that workman has failed to discharge burden of proof in view of above provision of law and therefore it is held that workman is not entitled to benefit of Section 25G of Industrial Disputes Act, 1947. The relevant citation titled MCD v. Rajpal 2011 SCC Online Delhi 2048 from Hon'ble High Court of Delhi at para no. 8 and 13 is reproduced hereasunder:-
8. It is correct that to apply Section 25G of the Act, it is not necessary that the workman should have worked for 240 days in a calendar year. At the same time, a person is not entitled to benefit under Section 25G of the Act if conditions required are not fulfilled/satisfied. While onus on many a condition is on the management, but onus regarding "particular category"
is on the workman. In Regional Manager, SBI vs. Rakesh Kumar Tewari, 2006 (1) SCC 530, it has been observed by the Supreme Court:
"14. Section 25G requires the employer to "ordinarily retrench the workman who was the last person to be employed in a particular category of workman unless for reasons to be recorded the employer retrenches any other workman". This "last come first go" rule predicates (1) that the workman retrenched belongs to a particular category (2) that there was no agreement to the contrary and (3) that the employer had not recorded any reasons for not following the principle. These are all questions of fact in respect of which evidence would have to be led, the onus to prove the first requirement being on the workman and the second and third requirements on the employer. Necessarily a fair opportunity of leading such evidence must be available to both parties. This would in turn entail laying of a foundation for the case in the pleadings. If the plea is not put forward such an opportunity is denied, quite apart from the principle that no amount of evidence can be looked into unless such a plea is raised. [See Siddik Mahomed Shah v. Mt. Saran; Bondar LIR No. 557/17 Dinesh Kumar Singh v. M/s. Tiger 4 Security & Detective India Pvt. Ltd. Page 16 of 26 Singh and Ors. v. Nihal Singh and Ors.]."
13. We also find that the pleadings in the present case relating to Section 25G are vague even in the affidavit by way of evidence filed by the respondents, (copy of such affidavit filed by Rajpal, is available on record), at best is ambiguous. It is merely alleged that there has been violation of Section 25F, G and H of the Act read with Rules 76, 77 and 78 of the Industrial Disputes Central Rules, 1957. No other details, facts and particulars have been stated.
Accordingly present issue is decided in favour of workman and against the management.
11. ISSUE NO. 2: RELIEF 11.1 In view of findings under issue no. 1 above it is held that the management has illegally terminated the workman in violation of principle of Sec. 25F of Industrial Disputes Act, 1947. Monetary compensation is deemed fit in the facts and circumstances of the case and in view of citation referred below.
In was held in case titled Prem Chand v. Management of M/S The Joint Director from Hon'ble High Court of Delhi in Civil Writ Petition No. 950 of 2008 dated 06.02.2008 as under :
(5) The learned Labour Court thereafter examined the question as to the nature of the relief to be granted to the workman. The power and jurisdiction of the Labour Court to grant appropriate relief in the event termination being set aside, for not following the provisions of Section 25-F of the LIR No. 557/17 Dinesh Kumar Singh v. M/s. Tiger 4 Security & Detective India Pvt. Ltd. Page 17 of 26 Industrial disputes Act, is well recognized through a catena of judgments on this issue. It has been repeatedly stated that reinstatement is not the rule. It may be useful at this juncture to set down a brief background of the trend of judicial pronouncements on this aspect. Till the years 1980-85, the general trend was of reinstatement in the event termination is found illegal. The power of Industrial tribunal to direct reinstatement was recognised in Western India Automobiles association Vs. Industrial Tribunal AIR 1949 FC 111.
Exceptions to this rule are also recognised in various judgments and reinstatement can be validly denied for many reasons including, inter alia, the nature of job, the workman not being a regular worker or not recruited through employment exchange or other regularly prescribed mode of selection. Such exceptions were also noted by the Supreme court in the case of Haryana Tourism Corporation Ltd. Vs. Fakir Chand and Ors. AIR 2003 SC 4465. To decide this matter, the Labour Court has examined a number of authorities, and in particular, the decision of this Court in Nehru Yuva kendra Sangathan Vs. Union of India, 2000 IV ad (Delhi) 709 wherein this Court had dealt with the question of reinstatement and back wages. It is noticed in paragraphs 27 and 28 thereof that although in the 1970s and 1980s, reinstatement with back wages was the norm in all cases where termination was found to be illegal, the trend of later decisions of the Supreme Court seems to suggest that now the award of compensation in lieu of reinstatement and back wages is the norm. This Court therefore held that;
"reinstatement is not the inevitable consequence of quashing an order of termination; compensation can be awarded in lieu of reinstatement and back wages."
The learned Labour Court also adverted to the decision of the Supreme Court in m. L. Binjolkar Vs. State of Madhya Pradesh 2005 VI (SCC) 224, to the same effect where, in paragraph 7, the Supreme Court has referred to a number of LIR No. 557/17 Dinesh Kumar Singh v. M/s. Tiger 4 Security & Detective India Pvt. Ltd. Page 18 of 26 earlier decisions of that Court and concluded that"
"the earlier view was that whenever there is interference with the order of termination or retirement, full back wages were the natural corollary. It has been laid down in the cases noted above that it would depend upon several factors and the court has to weigh the pros and cons of each case and to take a pragmatic view. . . . . . . . . . "
(6) THE same position has been reiterated by the Supreme Court in paragraph 56 of its decision in U. P. State Brasware Corporation Ltd. Vs. Uday Narain Pandey 2006 1 (SCC)
479). Reference may also be made to a decision of a Division bench of this Court in Pramod Kumar and Anr. Vs. The Presiding Officer and Anr. 123 (2005) DLT 509 where also a plea taken by the petitioner that the learned single Judge ought to have directed reinstatement instead of merely awarding compensation to the workman, was considered only to be rejected. It is in the light of these pronouncements that the learned Labour Court has looked at the circumstances of the petitioner's case. A reading of paragraphs 26 and 27 of the impugned award shows that in deciding to award compensation instead of reinstatement, while the learned Labour Court was conscious of the fact that compensation in lieu of reinstatement and back wages is now the norm, at the same time, it has also considered the fact that the petitioner had worked with the management on a part time basis for two hours on monthly wages of Rs. 500/-per month for about six years. The Labour Court has felt that since the petitioner was only a part time employee, working for only two hours in a day with the management, therefore instead of reinstatement, compensation would be a better alternative. It has therefore decided to award compensation of Rs. 20,000/- to be paid to the petitioner within one month of publication of the award failing which interest @ of 10% would be payable to the workman. According to the Labour Court, this amount would be sufficient to meet the ends of justice. A rough calculation will show that the Labour Court has in fact LIR No. 557/17 Dinesh Kumar Singh v. M/s. Tiger 4 Security & Detective India Pvt. Ltd. Page 19 of 26 directed payment of compensation equivalent to 40 months of earnings. To put it differently, it has given him compensation amounting to the salary drawn over a period of three years, which is also more than half of his tenure with his employer. It is noteworthy that Supreme Court in the case of O. P. Bhandari Vs. Indian Tourism Development Corporation Ltd. (1986) 4 SCC 337 held that compensation equivalent to 3. 33 years' salary (including allowances) as admissible on the basis of last pay and allowances would be a reasonable amount to award in lieu of reinstatement. In that case, the Court has taken into consideration the fact that the corpus, if invested at prevailing rate of interest, will yield 50% of the annual salary and allowances and the workman would get 50% of what he would have earned by way of salary and allowances with four additional advantages:
(i)He will be getting this amount without working (ii)He can work somewhere else and can earn annually whatever he is worth over and above, getting 50% of the salary he would have earned. (iii)If he had been reinstated, he would have earned the salary upto the date of superannuation (upto 55, 58 or 60 as the case may be) unless he died earlier. As against this, he would be getting the aforesaid 50% annually till he dies, regardless of his superannuation, after his demise, his heirs would keep getting it in perpetuity. (iv)The corpus of lump sum compensation would remain intact, in any event.
This was also reiterated in the case of Workmen Vs. Bharat Fritz Werner (P) Ltd. and Anr. (1990) 3 SCC 565. Thus, I do not find that the decision taken by the labour Court in this regard is in any way perverse or arbitrary nor do I feel that it has occasioned any failure of justice. A Writ Court is not exercising appellate jurisdiction and the scope for interference is very limited. Reference in this regard may also be had to the cases of Syed Yakoob Vs. K. S. Radhakrishnan AIR 1964 SC 477 where it was observed that;"there is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the court exercising LIR No. 557/17 Dinesh Kumar Singh v. M/s. Tiger 4 Security & Detective India Pvt. Ltd. Page 20 of 26 it is not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of appreciation of evidence cannot be reopened or questioned in writ proceedings. "
In the case of State Bank of Bikaner and Jaipur Vs. Om Prakash Sharma (2006) 5 scc 123, the Supreme Court held that the High Court cannot sit in appeal over the award of the Labour Court, but jurisdictional errors can be corrected while exercising power of judicial review. Similarly, in Apparel Export Promotion council Vs. A. K. Chopra (1999) 1 SCC 759 it was observed that"since the High Court does not sit as an appellate authority over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent for that of the departmental authorities. "
Furthermore, in the case of Govt. of A. P. And Others Vs. Mohd. Nasrullah Khan (2006) 2 SCC373 paragraph 11 states as follows:"11. By now it is well established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an appellate authority. Its jurisdiction is circumscribed and confined to errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of Natural Justice. Judicial review is not akin to adjudication on merit by re-appreciating the evidence as an appellate authority. "
(7) Lastly Learned counsel for the petitioner has also sought to urge that his client is hopeful of getting some regular employment with the respondent. He has suggested that this Court keep this matter on board on the plea that pendency of this writ petition will assist his client in securing favourable consideration from the respondent in this regard.
In conjunction with this suggestion, the petitioner has sought to link ground (c) of his writ petition, which has been reproduced above, to state that it was entirely within the LIR No. 557/17 Dinesh Kumar Singh v. M/s. Tiger 4 Security & Detective India Pvt. Ltd. Page 21 of 26 powers of the respondent to recruit the petitioner in any 4th class post as part time employee without even the necessity for a regular or sanctioned post. I do not think such a plea can be of any avail to the petitioner. In my opinion the statute does not vest the Labour Court with any power to direct the employer to "adjust" the petitioner in any other Class IV employment, "as if he was only a part-time employee,"
as sought to be contended by petitioner's counsel, reinstatement can only be granted in the same employment and not in any other employment with the employer. The tactic of filing such a petition in this court, and then using the very fact of its pendency to create some sort of pressure on the respondent to give the petitioner further employment, has only to be deprecated. To my mind, it would be wholly unethical for this Court to lend itself to such tactics on the part of a litigant.
(8) The contention of the petitioner to the effect that since his client had only claimed reinstatement without any claim for back wages or compensation, therefore its decision to award compensation in lieu of reinstatement, demonstrates that the impugned award is perverse and occasioned a failure of justice, since it did not have any jurisdiction to do so, is also devoid of merit. An examination of Section 10 (4) of the Industrial Disputes Act shows clearly that the Labour Court is required to confine its adjudication to the points of dispute referred and "matters incidental thereto". In this case the workman had applied directly to the Labour Court under Section 10 (4A) as amended vide Delhi Act 9 of 2003 which came into effect from 22. 8. 2003. This states as follows:
" (4A) Notwithstanding anything contained in Section 9c and this section, in the case of dispute falling within the scope of Section 2a, the individual workman concerned may, within twelve months from the date of communication to him of the order of discharge, dismissal, retrenchment or termination or the date of commencement of the Industrial Dispute (Delhi Amendment) Act, 2003, whichever, is later, apply in the LIR No. 557/17 Dinesh Kumar Singh v. M/s. Tiger 4 Security & Detective India Pvt. Ltd. Page 22 of 26 prescribed manner, to the Labour Court or the Tribunal, as the case may be, for adjudication of the dispute and the Labour Court or tribunal, as the case may be, shall dispose of such application in the same manner as a dispute referred under sub-section (1). "
What is noteworthy is that in the case of any application moved to the Labour court under this provision, the Labour Court is enjoined to, "dispose off such application in the same manner as a dispute referred to in sub-section (1). " It follows therefore, that the Learned Labour Court was bound to dispose off this application in the same manner as any other dispute that might have been referred to it. From this, it can be concluded that the provisions of Section 10 (4) which apply to all other references and spells out the nature of the labour Court's jurisdiction, as well as the scope of its adjudicatory powers whilst disposing off such references, would be equally applicable while deciding an application made directly to the Labour Court under Section 10 (4a). To my mind, the expression "shall dispose of such application in the same manner", can only mean that while deciding this application, it will apply the same principles and shall have same powers as are available to the Labour Court and be subjected to the same restrictions by which Labour Court is bound in case of references made to it in the ordinary course under Section 10.
(9) It is settled law that if the Labour Court is of the opinion that the award of said compensation would meet the ends of justice in a particular case, then keeping in mind the relevant facts and circumstances of that case, the labour Court has the power to award compensation even though there may be no claim for back wages or reinstatement made by the workman. This power is derived from Section 11-A of Industrial Disputes Act which deals with power of labour Courts, Tribunals and National Tribunals to give appropriate relief in case of Discharge or Dismissal of workmen. In Anglo-American Direct Tea Trading company Ltd. Vs. LIR No. 557/17 Dinesh Kumar Singh v. M/s. Tiger 4 Security & Detective India Pvt. Ltd. Page 23 of 26 Workmen of Nahortoli Tea Estate (1961) 2 LLJ 625 (SC), the supreme Court through Justice Wanchoo held that Section 11- A vests the industrial adjudicators with the discretionary jurisdiction to give 'such other relief to the workmen. . . . . in lieu of discharge or dismissal as the circumstances of the case may require,' where for some valid reason it considers that reinstatement with or without conditions will not be fair or proper. Compensation in such a case is the solatium for unjustified and premature termination of employment. In this case also, the same has been done. The relief of compensation is clearly incidental to any adjudication that goes into the question of unlawful termination of service of an employee. Even going by the general principles of Industrial Adjudication, it would be incorrect to conclude that compensation in lieu of reinstatement is not incidental to a dispute relating to dismissal or discharge of a workman. As already stated above, it is unquestionable that even after finding that termination is illegal, the Labour Court has the power to decline reinstatement if it is of the view that compensation will suffice.
10. The counsel for the petitioner has repeatedly tried to say that he was entitled to reinstatement because of his right to livelihood, which is recognized by the courts as an extension of the right to life guaranteed by the State under Part III of the Constitution of India, relating to Fundamental Rights. Such an argument needs to be noticed only to be rejected peremptorily. Right to livelihood, or any other Fundamental Right, is subject to reasonable restrictions that may be imposed by the State or by any other Constitutionally valid Statute enacted by the Parliament. The Industrial Disputes Act is one such legislation that indeed provides for the investigation and settlement of industrial disputes and provides, inter-alia, a degree of protection against exploitation and oppression of labour. It must however be kept in mind that even this protection is subject to the rule of law, which is equally applicable to all, whether management LIR No. 557/17 Dinesh Kumar Singh v. M/s. Tiger 4 Security & Detective India Pvt. Ltd. Page 24 of 26 or labour. It is within the province of the Labour Court to decide whether on an overall conspectus of the surrounding circumstances an award of compensation will suffice and if it does arrive at that conclusion on a rational and sustainable basis, the workman cannot insist that if he is not put back in his part time job in which he rendered 2 hours service everyday, his right to livelihood enshrined in the Constitution is unjustly taken away.
It is found that workman has short period of service and the nature of job was not proved as permanent on record. Hence monetary compensation is held justified in this case.
Accordingly workman is held entitled and has been granted the following reliefs:
(i) Monetary compensation for a sum of Rs.50,000/ for his such illegal termination by the management and it is allowed against the management.
(ii) All the due amount be paid by management within one month of the date of publication of present Award with interest @6% per annum from the date of publication till its realization.
(iii) The workman is also awarded the cost of litigation against management for a total sum of Rs.20,000/- u/Sec.
11(7) of Industrial Disputes Act, 1947.
Reference stands answered in the aforesaid terms.
LIR No. 557/17 Dinesh Kumar Singh v. M/s. Tiger 4 Security & Detective India Pvt. Ltd. Page 25 of 2611.2 A copy of Award be sent to the Competent Authority/appropriate Government i.e., Joint/Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication which thereafter become enforceable u/Sec. 17A of Industrial Dispute Act, 1947. Award is passed accordingly and claim stands disposed in above terms.
File be consigned to record room after due compliance.
Announced in the open Court
on 03.05.2023. JOGINDER Digitally signed by
JOGINDER PRAKASH
PRAKASH NAHAR
Date: 2023.05.03 16:11:30
NAHAR +0530
(JOGINDER PRAKASH NAHAR)
PRESIDING OFFICER LABOUR COURT-IX
ROUSE AVENUE COURT COMPLEX/NEW DELHI
LIR No. 557/17
Dinesh Kumar Singh v. M/s. Tiger 4 Security & Detective India Pvt. Ltd. Page 26 of 26