Delhi District Court
Between The vs The on 20 May, 2019
IN THE COURT OF SH. RAMESH KUMARII, PRESIDING
OFFICER LABOUR COURT, ROUSE AVENUE COURTS
COMPLEX, D.D.U. MARG, NEW DELHI
LIR No. 1626/2016
Date of institution 20.01.2011
Date of Award 20.05.2019
BETWEEN THE WORKMAN
Sh. Hawa Singh S/o Sh. Mondrup, VPO Bholoth, Distt. Ihunshunu,
represented by Group4 Falk Cash Service Pvt. Ltd., Karamchari Union
(Regd.), L1st, 453/A, Budh Bazar, New Delhi62.
AND
THE MANAGEMENTS OF
M/s G4S Cash Services (India) Pvt. Ltd., Building No. 875/2(B4142),
Opp. CNG Pumping Station, Mahipalpur, New Delhi37.
M/s G4S Cash Service (India) Pvt. Ltd. through its Managing Director,
Registered Office At C16, Community Centre, Janakpuri, Behind
Janak Cinema, New Delhi58.
AWARD
1 By this award I shall dispose off the reference sent by the Dy. Labour
Commissioner, Labour Department, District SouthWest, Govt. of the
National Capital Territory of Delhi, arising out between the parties named
above to this Court vide Notification No. F.24(450)/10/SWD/Lab./9369
9373 dated 22.12.2010 with the following terms of reference:
"Whether the transfer of Sh. Hawa Singh S/o Sh.
Mondrup from Delhi to Jorhat (Assam) by the management is
illegal and/or unjustified, if so to what relief is he entitled and
LIR No. 1626/16 1/27
what directions are necessary in this respect?"
2 Notice of the reference was issued to the workman with directions to
file statement of claim which he has filed stating therein that he had been
working with the management as a Gunman since 23.12.2003 and his last
drawn wage was Rs.6500/ per month and his service record was good. It is
further stated that the management was earlier known as Group4 Securitas
Pvt. Ltd. and then known as Group4 Falk Cash Services India Pvt. Ltd. And
the management is well known for its anti labour and unfair labour practices
such as denial of double payment for extra work of over time after normal
duty hours, non issuance of appointment letters to workman despite their
oral requests, arbitrary withdrawal of existing benefits of workers,
victimization of workers by way of transfer from Delhi to other States/places
on an any to crush the union of the workers, dismissal of workers from
service on flimsy grounds without complying the principles of natural justice
and in violations of various provisions of I.D. Act, implicating active union
mined workers in false police cases etc. It is further stated that the Group4
Falk Cash Services Pvt. Ltd. Karamchari Union is a registered Trade Union
of the workers of the management and recognized by the management and
the workman is an active member of the union and in the forefront of several
peaceful agitation in support of the demands of the workers and this was not
liked the management and some officers of the management asked the
workman to leave the union activities but he refused to leave the union or
not resigned from the union which was not liked by the management. It is
further stated that the management wanted to implement its own anti labour
policies and also wanted to curtail certain existing benefits of the workers
like discontinue of dinner allowances after 10:00 p.m., discontinue of
LIR No. 1626/16 2/27
conveyance charges of workers after 10:00 p.m. transfer of unionized
workers from Delhi to other States/places etc. but the union did not agree to
the management's new proposed police/agenda. It is further stated that the
union with the consultations with their members/workmen of Delhi opposed
the proposed agenda of the management from implementing and informed
the management that the union is a progressive union and willing to work
out a mutual solution through negotiations with the management across the
table and submitted a proposal to this effect to the management and cleverly
the management on one hand having negotiations with the union for the
name sake and on the other hand was planning to demolish the union by way
of cooking up false cases on some of the active members of the union behind
their back with the help of the local police and was hatching plan to remove
the existing workers from Delhi by hook or crook, so that they can put fresh
workers in place of old workers through private contractors on the dictated
terms of the management. It is further stated that on 01.05.2010,
management supplied a letter of management's agenda to the union, though
in the said letter name and address of the union was not mentioned
intentionally and the management wanted to implement/inject new
conditions on the workmen and also wanted to curtail certain existing
benefits of the workers and also wanted to impose service condition of
transfer to outer States. It is further stated that the union did not fully agree
with the management though it had agreed to some conditions and the same
was informed to the management vide letters dated 06.05.2010 and
07.05.2010, but the union had totally disagreed with the proposed agenda of
transfer of workers from Delhi to other States and it had informed the
management that if any particular workman was willing to go to other
LIR No. 1626/16 3/27
State/place/home town, he was free to choose the same. It is further stated
that in the meantime, the management had started collecting cash through
private contractors by deploying employees of contractors in place of
permanent workers and when he reported for duty on 12.05.2010, he was
surprised that the premises was locked and unsigned handwritten notice was
pasted on the gate mentioning that the management had been closed with
immediate effect and even the notice was not on the letter head of the
management and was also not bearing its seal. It is further stated that the
workman and others coworkers could not join duty on 12.05.2010 due to
illegal lock out and the office bearers of the union tried to speak to the
management on phone, but no one was ready to talk and as such the union
lodged a complaint with Deputy Labour Commissioner on 13.05.2010 for
declaring the lock out illegal and initiation of prosecution against the
Managing Director. It is further stated that the union also had sent a telegram
to the Managing Director of the management on 14.05.2010 thereby asking
him to lift the illegal lock out of Mahipalpur and Jhandewalan offices of the
management and he was also informed that the workers were reporting for
duty daily, but the management was not allowing them to resume duty. It is
further stated that the Managing Director was also informed that the
management was forcibly opening ATMs to implicate workers in false cases.
Thereafter, a telegram was also sent to Labour Commissioner on that day to
the same effect and the Commissioner of Police was also intimated vide
telegram dated 14.05.2010 that the management was forcibly opening ATM
counters and machines with duplicate keys in order to implicate workers in
false cases. It is further stated that the union had sent a letter dated
18.05.2010 to the Managing Director informing him that the workers of
LIR No. 1626/16 4/27
Mahipalpur and Jhandewalan offices were reporting for duty daily since
12.05.2010 and that the management was not allowing them to work due to
illegal lock out and he was informed that the workers were having ATM
vault keys and combination passwords which they were willing to hand over
to the management and requested to send some senior officers as the same
could not be handed over to the clerks or security guards, but none came
forward to collect the same. It is further stated that the union had also
informed SHO P.S. Vasant Kunj through letter dated 18.05.2010 that the
workers were willing to hand over ATM vault keys and combination
passwords to the management and that no one from the management was
coming forward to take delivery thereof and on his complaint against illegal
lock out, an official from labour department had visited Mahipalpur office of
the management on 18.05.2010 and found the same locked illegally. It is
further stated that the official from labour department pasted a notice on the
gate thereby directing the management to attend a meeting with Deputy
Labour Commissioner on 20.05.2010 at 12:00 noon but despite notice, no
one on behalf of the management attended the meeting at the given time. It is
further stated that on 07.06.2010, he was surprised to receive a back dated
letter from the management in which it was mentioned that his service had
been transferred from Delhi to Jorhat, Assam due to indiscipline etc. which
was totally illegal as there was no exigency of the work at the given place
and that it was due to victimization and to harass him because of his support
to the union on 8 point agenda. It is further stated that all the allegations
mentioned in the transfer letter were denied in his reply dated 11.06.2010
and asked the management to withdraw the illegal transfer letter and allow
him to join the duty at Delhi. It is further stated that the management had
LIR No. 1626/16 5/27
issued about 400 such back dated transfer letters to the workers and also
issued more than 100 dismissal order to the workers in utter violations of
principle of natural justice. It is further stated that against illegal transfer,
they had requested the union to take up their case at the appropriate for and
the union officials requested the management to stop victimization and asked
to take them back on duty but there was no response from the management.
It is further stated that thereafter, the executive committee of the union
passed a resolution in its meeting against illegal transfer of the workers from
Delhi to other States and unanimously authorized the union to file case on
behalf of the workers before the appropriate forum. The executive committee
had urged Sh. Mohan Nair, executive member of the union to file the cases
on behalf of affected workers and consequently, the case was filed before
Conciliation Officer which could not be resolved. It is further stated that the
workman is unemployed since refusal of duty at Delhi by the management
and he could not get any job despite his best efforts and ultimately, the
workman has prayed that an award be passed in his favour thereby directing
the management to recall its back dated transfer letter dated 15.05.2010 and
allow him to resume duty at Delhi with continuity of service with all
consequential benefits and also declare the act of the management as illegal
and unjustified.
3 The management has contested the present case and filed its written
statement/reply. However, it is a matter of record that on 03.04.2017, the
management has filed an application under section 11 (1) of the Industrial
Disputes Act for amendment in written statement. After hearing both the
parties the said application of the management was allowed by my Ld.
Predecessor vide order dated 21.04.2017. The management in its amended
LIR No. 1626/16 6/27
written statement has taken various preliminary objections that the claimant
after having been transferred to Jorhat, Assam on account of exigency of
service and administrative requirement in accordance with the conditions of
employment, has failed to join his duties at the transferred place as advised
vide transfer letter dated 15.05.2010 issued by the management to him. It is
further stated that the claimant is absenting from his duties unlawfully and
unauthorizedly and is thus seriously violating the terms and conditions of his
employment and this Hon'ble Court may kindly direct him to join his duties
at the transferred place immediately. It is further stated that a dispute raised
against a bonafide transfer of an employee which is otherwise an essential
and incidental condition of employment, is not an industrial dispute as
defined under section 2 (k) of the Industrial Disputes Act, 1947, therefore,
the present claim is not maintainable. It is further stated that the present
claim is not maintainable also for the reason that the same is not properly
espoused as required under the provisions of Industrial Disputes Act, 1947
and the alleged union has no locus standi to file the present claim on behalf
of the claimant before this Hon'ble Court. It is further stated that the claimant
with other workers have taken business of the management to ransom and by
their continued unlawful acts have caused serious business loss to the
management to the extent that the customers of the management were forced
to withdraw their business including the ATMs from the management on
which the claimant was working no longer exists. However, though there is
no vacancy available for the claimant in NCR, the management as a model
employer to ensure that the claimant does not get affected, accommodated
him and transferred him to Jorhat, Assam vide its letter dated 15.05.2010 but
the claimant instead of realizing about his acts did not join his duties at the
LIR No. 1626/16 7/27
transferred place continued to indulge in illegal acts and is still doing so by
harassing the management by approaching this Hon'ble Court with false and
frivolous allegations/complaints against the management. It is further stated
that keeping in view the nature of business of the management and having
regard to commercial necessity, the claimant has been transferred as per the
transfer clause of letter of appointment which is reproduced as under:
"THAT THE COMPANY SHALL HAVE ABSOLUTE RIGHT AND
DISCRETION TO SHIFT AND/OR TRANSFER YOU FROM ONE SITE/PREMISES
TO ANOTHER, WHETHER LOCATED IN DELHI OR OUTSIDE, IF THE
EXIGENCIES OF WORK OF THE COMPANY SO DEMANDS. REFUSAL TO
CARRY OUT SUCH ORDERS SHALL CONSTITUTE GROSS MISCONDUCT FOR
WHICH YOUR SERVICES SHALL BE LIABLE TO BE TERMINATED".
4 It is further stated that thus, the respondent had the right and discretion
to carry out its operation as per requirement from time to time and having regard to the respondent rights, the claimant was transferred on 15.05.2010 due to the circumstances created by the employee themselves, as explained above and keeping in view the administrative requirement and exigencies of work. It is further stated that it is only after the transfer from one place to another, the alleged union made false complaints and forced the willing workers not to join at the transferred place and there is no bar in law that the management cannot transfer the workers in view of the express terms of employment with regard to transfer. It is further stated that the union made an attempt to destroy the industrial peace and smooth operation of the company by making false allegations. The transferred employees, instead of joining at the transferred place filed false and frivolous case. It is further stated that the management presented true and correct position before the LIR No. 1626/16 8/27 Labour Authorities as regards to express conditions of employment and transfer being legal, valid and justified in all respect and the management advised the workers through the Labour Department, to report for duties at the transferred place and the claimant is free to join at the transferred place in accordance with law with the order of transfer dated 15.05.2010. As far as merits are concerned, designation, date of appointment and last drawn salary of the workman is stated to be matter of record. However, it is denied that the service record of the claimant during his employment with the management had been good. It is also denied that the management indulged in anti labour or unfair practices as alleged and it is submitted that the management is a highly law abiding entity and religiously complies with all the laws of land and affords each and every facility to its employees to which they are entitled to under labour laws. It is also denied that the management had arbitrarily withdrawn any existing benefits as alleged. It is reiterated that the services of the claimant have been transferred due to exigencies of work and administrative requirement in accordance with the terms and conditions of the employment and the same is legal, valid and justified in all respect and the allegations regarding dismissal of the workman from services and implication in police cases is without any basis and have no substance and seems to have been made with a view to prejudice this Hon'ble Court and the facts remains that the claimant has failed to report for duties at the transferred place and is absenting unauthorizedly. It is also denied that on 12.05.2010, when the claimant reported for duty, the claimant found the office gate of the management locked or that the workers were standing outside the company. It is also denied that there was any lockout on 12.05.2010 or that because of any illegal lockout the claimant could not join LIR No. 1626/16 9/27 office. All other averments of the statement of claim are denied word by word and ultimately it is prayed that the claim of the claimant be dismissed 5 The workman filed rejoinder to amended written statement of the management, in which he denied all the contents of the written statement word by word and he reiterated and reaffirmed the facts of the statement of claim as correct and it is prayed that an award may kindly be passed in favour of the workman in terms of the prayer made by him in the statement of claim.
6 After the completion of pleadings, following issues were framed by my Ld. Predecessor vide order dated 12.12.2011: 1 As terms of reference.
2 Whether the claim of the workman has been validly espoused? Onus on parties.
3 Relief.
7 After the framing up of the issues, matter was fixed for workman evidence. The workman examined three witnesses in support of his claim i.e. himself as WW1, Sh. Ramji Pandey as WW2 and Sh. Manoj Kumar as WW3.
8 WW1/workman tendered his affidavit in evidence by way of affidavit Ex.WW1/A mentioning all the facts stated in statement of claim and relied upon documents i.e. Ex.WW1/1 is transfer letter dated 15.05.2010, Ex.WW1/2 is copy of representation by the workman to the management to withdraw transfer letter, Ex.WW1/3 is original postal receipts, Ex.WW1/4 is copy of agenda dated 01.05.2010, Ex.WW1/5 is copy of letter (undated) of the management to union, Ex.WW1/6 is copy of reply dated 07.05.2010 of LIR No. 1626/16 10/27 the union to the agenda of the management, Ex.WW1/7 is copy of reply dated 06.05.2010 of the union to the agenda of the management, Ex.WW1/8 is copy of complaint dated 13.05.2010 by union to the Dy. Labour Commissioner against the management for illegal lock out, Ex.WW1/9 appears to be inadvertently exhibited as Ex.WW1/9 as same is part of complaint Ex.WW1/8, Ex.WW1/10 is copy of complaint to the Commissioner of Police, I.P. Estate, New Delhi, Ex.WW1/11 is copy of complaint of the union to the Managing Director of the management, Ex.WW1/12 is copy of complaint to the Labour Commissioner, Ex.WW1/13 is copy of postal receipts, Ex.WW1/14 is copy of complaint by union against the management to SHO P.S. Vasant Kunj, Ex.WW1/15 is copy of complaint dt. 18.05.2010 by the union to Managing Director of the management, Ex.WW1/16 is copy of notice dated 18.05.2010 by the Labour Officer to the management against illegal lock out, Ex.WW1/17 is copy of extract dated 18.01.2011 of the minutes of meeting of union held on 27.05.2010, Ex.WW1/18 is copy of registration certificate of the union and Ex.WW1/19 is copy of annual return of the union for the year 2010 alongwith list of office bearers for the year 20112012.
9 WW2 Sh. Ramji Pandey has filed his evidence by way of affidavit Ex.WW2/A and deposed that he is the elected President of GroupIV Falk Cash Services Pvt. Ltd. Karamchari Union. He deposed further that the management illegally and wrongfully dismissed more than 70 employees w.e.f. 15.05.2010 onwards and transferred 300 employees from Delhi to other States without complying with the principles of natural justice. He further deposed that the executive committee of the union discussed their matter and passed a resolution to take up the case before appropriate forum LIR No. 1626/16 11/27 including court.
10 WW3 Sh. Manoj Kumar has also filed his evidence by way of affidavit Ex.WW3/A and deposed that he is the elected Treasurer of the union and the workman was a member of the union. He also deposed that the management illegally and wrongfully dismissed more than 70 employees w.e.f. 15.05.2010 onwards and transferred 300 employees from Delhi to other States without complying with the principles of natural justice. He further deposed that the executive committee of the union passed a resolution on 27.05.2010 against the illegal and malafide action of the management and espoused the cause of the workmen. He relied upon the documents i.e. Ex.WW3/1 is copy of annual subscription receipt, Ex.WW3/2 (colly.) are copy of transfer letter and termination letter. He also relied upon documents which are Ex.WW1/1 and Ex.WW1/2 in testimony of the workman. 11 On the other hand, the management also examined two witnesses i.e. Sh. Sanjeev Kumar Taku, General Manager (Legal)/authorized representative of the management and Sh. Ravi Kumar, Personnel Officer of the management as MW2. The management has relied upon documents i.e. Ex.MW1/1 is letter of appointment and Ex.MW1/2 is letter of transfer. The management also filed affidavit of Sh. Praveen Roy, Vice President of the management but the management did not tender his affidavit despite giving sufficient time and ultimately the evidence of the management was closed vide order dated 12.03.2019.
12 Ld. AR for workman filed written arguments in one of the connected matter and reiterated his arguments as mentioned in the written arguments. 13 Ld. AR for management filed written arguments in connected case titled as Balbir Singh Vs. G4S Cash Solutions India Pvt. Ltd. and he also LIR No. 1626/16 12/27 reiterated his arguments as mentioned in the written arguments. 14 I have perused the written arguments filed by both the parties. 15 Record perused. On perusal of record, my issue wise findings are as follows: ISSUE NO.2 16 Firstly issue no.2 is being disposed off. Onus to prove this issue has been conferred by my Ld. Predecessor upon both the parties. The management in its amended written statement took the defence that the present claim is not maintainable for the reason that the same is not properly espoused as required under the provisions of Industrial Disputes Act, 1947 as the alleged union has no locus standi to file the present claim on behalf of the claimant. The workman denied this fact in his rejoinder and stated that the claim of the workman is properly espoused by his union and the union has locus standi to raise the claim of the workman who is member of the union and majority of the workers are members of the union. 17 The workman in order to prove this issue has examined WW2 Sh. Ramji Pandey. He was cross examined by Ld. AR for management and in cross examination WW2 Sh. Ramji Pandey deposed that in the year 2010 the election for the union was held in April, 2010 and at the time of election about 500 employees were present at ground adjacent to Mahipalpur Shamshan Bhumi but he cannot tell the date on which the said election took Place. He further deposed that no agenda for the election was circulated to the members before the election. He voluntarily deposed that the members were informed orally, phone and through letter but he further admitted that he has not placed copy of any such letter on record before this court. He further deposed that he did not remember who was the Returning Officer of LIR No. 1626/16 13/27 the election in the year 2010 and also that whether any meeting of Executive Committee of the union took place prior to election to decide the election of the union. He further deposed that he also did not remember if the Returning Officer had issued any letter regarding elected office bearers of the union after the election. He further deposed that in the year 2010, Mr. K.C. Kumar was the General Secretary of the union and Mr. Satender Kumar Singh was the President of union. He further deposed that the union does not get any membership form filled from any workers when he becomes a member of the union. He further deposed that the union has got its byelaws but he has not filed the copy of the said byelaws on record which is Ex.WW2/M1x. He further deposed that he has filed copy of the elected members/office bearers in the year 2010. He further admitted as correct that he has not placed list of 70 employees alleged to have been dismissed on 15.05.2010 before this court and also admitted as correct that he has not placed on record the list of 300 employees alleged to have been transferred. He further admitted as correct that no date on which the Executive Committee of the union discussed the matter of transfer of employees has been mentioned in para 3 of his affidavit. He further deposed that he did not remember as to how many members were present when the union discussed the matter of transfer of employees as mentioned in para 3 of his affidavit. He further denied the suggestion that no meeting of the union took place regarding transfer of employees as mentioned in para 3 of his affidavit and that is why no date, time and venue has been mentioned or that the transfer of employees was done due to exigencies of work and administrative requirement and in accordance with the conditions of service applicable to them. He further deposed that in the year 2005 to 2010, there were about 450 to 500 workers LIR No. 1626/16 14/27 as members of the union. He further deposed that the union used to issue receipt to the worker aspiring to become member of the union. He further admitted that he has not placed on record copies of the receipt if any, issued to any worker while becoming member of the union and also that he has not placed any documentary proof to show that claimant is a member of the union. He further admitted that he has not placed on record the records of the meetings of the union for the period 2010, 2011, 2012 except dated 11.04.2010.
18 The workman also examined WW3 Sh. Manoj Kumar, who was also cross examined by Ld. AR for management and in cross examination, he deposed that the election of union took place in the month of November, 2010. Thereafter, Ld.AR for management put a question to this witness that please state how notice of election was given to the workers in the year November, 2010, to which he replied that the notice was given verbally to the workers.
19 This is the relevant evidence on this issue. It is the main contention of Ld. AR for management in written arguments that the cause of the claimant needs to be espoused and in the absence of the same, his case is liable to be dismissed as neither there is any evidence nor it is pleaded in the statement of claim.
20 In support of his contentions, Ld. AR for management has relied upon following judgments: Lord Krishna Textile 2015 LLR 747 of Hon'ble High Court of Delhi wherein it was held that: "in the cases of disputes not falling under subsection 1 of the said section the position is the same as that before the 1985 LIR No. 1626/16 15/27 amendment. For the disputes not covered under section 2A (1) of the ID Act, its espousal must still be through a Union or a substantial number of fellow workmen".
Hira Singh Vs. Management of Hotel Samrat of Hon'ble Division Bench of Hon'ble Delhi High Court in LPA No. 171& 172/2007 wherein it was held that: "it was a common case of the parties that the issue of regularization is not covered by Section 2A of the Industrial Disputes Act and therefore, it needed espousal of the union.".......
21 On the other hand, Ld. AR for workman has relied upon judgment of Hon'ble High Court of Delhi in case titled as M/s Batra Hospital Employees Union Vs. Batra Hospital & Medical Research, WP (C) No.5349/2004 decided on 22.01.2018, in which it was held that: "24. as such, espousal, either by the Union or by a substantial number of workmen in the establishment concerned, would be sufficient to elevate the dispute to the status of an "industrial dispute". In the present case, as the registered union of the workmen of the respondent Hospital had initiated the industrial dispute, the requirement of an "espousal" is clearly satisfied. That apart, there is, on record, a note, in vernacular, stating that, on 28 th June 1999, a meeting of the Executive Committee of the petitioner Union met and decided that, as the Management of the respondent Hospital had refused to pay bonus, a dispute, in that regard, be instituted in the Labour Court".
It was further held in para 25 of this judgment that: "Mr. Manish Sharma relies on a judgment of a learned Single LIR No. 1626/16 16/27 Judge of this Court, in Management of M/s Hotel Samrat v G.N.C.T., 136 (2007) DLT 290, to support his contention that the industrial dispute, in the present case was not properly espoused. He has specifically drawn my attention to paras 8 to 14 of the said judgment. A reading of the said paras, however, reveal that they do not advance the case of the respondent to any extent. Rather, the learned Single Judge, in the said decision relied on J.H. Jadhav (supra) but held that, as it was a lone workman who had sought to raise the dispute, the cause suffered from want of proper espousal. The present case is obviously distinguishable".
It was further held in para 26 of this judgment that: "clearly, therefore, the contention of Mr. Manish Sharma that the dispute in the present case, suffered from want of the requisite "espousal", has no legs to stand on".
It was further held in para 27 of this judgment that: "before closing the discussion on Mr. Sharma's preliminary submissions and embarking on an analysis of the merits, it would be worthwhile to revisit the following words of V. R. Krishna Iyer, J., in Mumbai Kamgar Sabha v. Abdul Bhai Faizal Bhai, (1976) 3 SCC 832, which bear his indelible imprint: "7 Fairness to respondent's Counsel constrains us to consider in limine a flawsome plea forcibly urged that the union figured as the appellant before us but being no party to the dispute (which was between the workers on the one hand and the establishments on the other) had no locus standi. No right of the union qua union was involved and the real disputants were the workers. Surely, there is terminological lapse in the cause title because, in fact, the aggrieved appellants are the workers collectively, not the union. But a bare LIR No. 1626/16 17/27 reading of the petition, the description of parties, the grounds urged and grievances aired, leave us in no doubt that the battle is between the workers and employers and the union represents, as a collective noun, as it were, the numerous humans whose presence is indubitable in the contest, though formally invisible on the party array. The substance of the matter is obvious and formal defects, in such circumstances, fade away. We are not dealing with a civil litigation governed by the Civil Procedure Code but with an industrial dispute where the process of conflict resolution is informal, roughandready and invites a liberal approach. Procedural prescriptions are handmaids, not mistresses, of justice and failure of fair play is the spirit in which courts must view processual deviances. Our adjectival branch of jurisprudence, by and large, deals not with sophisticated litigants but the rural poor, the urban lay and the weaker societal segments for whom law will be an added terror if technical mid descriptions and deficiencies in drafting pleadings and setting out the cause title create a secret weapon to non suit a party. Where foul play is absent, and fairness is not faulted, latitude is a grace of processual justice. Test litigations, representative actions, pro bono publico and like broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to bypass the real issues on the merits by suspect reliance on peripheral procedural shortcomings. Even Article 226, viewed in wider perspective, may be amenable to ventilation of collective or common grievances, as distinguished from assertion of individual rights, although the traditional view, backed by precedents, has opted for the narrower alternative. Public interest is promoted by a spacious construction of locus standi in our LIR No. 1626/16 18/27 socioeconomic circumstances and conceptual latitudinarianism permits taking liberties with individualisation of the right to invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker. Less litigation, consistent with fair process, is the aim of adjectival law. Therefore, the decisions cited before us founded on the jurisdiction under Article 226 are inept and themselves somewhat out of tune with the modern requirements of jurisprudence calculated to benefit the community".
22 It is the claim of the workman that when he was issued transfer letter by the management, he alongwith other workers approached to Group4 Falk Cash Services Pvt. Ltd. Karmchari Union and this union after holding a meeting passed a resolution regarding the illegal transfer of the workman and thereafter, they approached to the Conciliation Officer. The union in order to prove that there was resolution dated 27.05.2010 has placed on record extract of the minutes dated 18.01.2011 which is Ex.WW1/17. Further more, MW1 was put a question by Ld.AR for workman during his cross examination that the management had filed an injunction suit no. CS (OS) 1036/2010 before the Hon'ble High Court of Delhi against the office bearers of M/s Group4 Falk Cash Service (P) Ltd. Karamchari Union (Regd. No. 5031) and the workmen of the company, to which he replied in positive. The said union gave reply to the agenda of the management. The management also addressed letter to the said union to give reply to its said agenda. It is also revealed that it was the same union who had sent complaint dated 13.05.2010 against the management to the Dy. Labour Commissioner against illegal lock out since 12.05.2010. The said union also made a complaint to Commissioner of Police against the management that the LIR No. 1626/16 19/27 management was operating ATMs with duplicate keys in order to implicate the workers in false cases. The said union also sent various complaints on other occasions to concerned authorities including the management. From all these complaints it stands proved that the said union had been taking up the cause of workers and the management had been interacting with the said union since inception of the dispute.
23 Admittedly the workman has not placed on record copy of resolution passed by the executive committee of the union on 27.05.2010. However, this court is in complete agreement with the judgment relied upon by Ld. AR for workman i.e. M/s Batra Hospital Employees Union (supra), since it has been proved on record that the Group4 Falk Cash Services Pvt. Ltd. Karamchari Union is registered one vide registration certificate Ex.WW1/18 and its Executive Committee held a meeting against illegal transfer of the workers. Accordingly, keeping in view all these facts and circumstances and particularly keeping in view the law laid down in aforesaid judgment, it is held that the workman has been able to prove that his claim has been validly espoused.
24 As far as judgments relied upon by Ld. AR for management are concerned, same are not helping to the management in any manner keeping in view of discussion above. Issue no.2 is decided in favour of the workman and against management.
ISSUE NO. 125 The workman in cross examination deposed that he had given an application for employment to the management at the time of his appointment. He was not issued any appointment letter by the management at any point of time and he had not asked for the letter of appointment in LIR No. 1626/16 20/27 writing by the management. He further deposed that he has never written a letter to the labour department or made any complaint to any authority that he had not been given any appointment letter. He further denied the suggestion that he received letter of appointment at the time of his employment and that is why no complaint in writing was made either to the management or to the labour department from the date of his employment till the present dispute. He further denied the suggestion that he has been unauthorizedly absenting from duties from the transferred place ever since his services were transferred from Delhi to Jorhat, Assam or that his services were transferred as per the terms and conditions of his appointment and the same was legal and justified. During his further cross examination Ld. AR for management had shown certain documents to the workman i.e. application for employment, nomination and declaration and contract of employment. The workman admitted his signature on application for employment Ex.WW1/M1 at points X1 and nomination and declaration form Ex.WW1/M2 at point X2 to X5. However, he denied his signature on contract of employment MarkWW1/M3 at point A (also Ex.MW1/1). 26 MW1 Sh. Sanjeev Kumar Taku in his cross examination denied the suggestion that management did not issue appointment letter to the workman or that management has not filed on record the copy of appointment letter of workman or that the management never gave document Ex.MW1/1 to the workman. He further admitted as correct that on the date of issue of Ex.MW1/1, he was not the employee of the management company. He further denied the suggestion that management never informed the workman regarding the terms and conditions of the employment at the time of appointment as narrated in para 3 of his evidence affidavit or that workman LIR No. 1626/16 21/27 was informed at the time of his appointment that he was being appointed for Delhi Region. He further admitted as correct that before the issuance of transfer letter to workman no chargesheet was issued to the workman. On question put by Ld. AR for workman that at the place where workman was transferred to, the management was not having any operating office/unit of the management company, this witness replied that he will have to check the records. He further denied the suggestion that during the period from 01.05.2010 to 30.05.2010 management was having no contract with any client/company for providing services at the place where the workman was transferred or that management has not filed on record copy of any such contract with the client/company for the reason that it had not such contract or that transfer letter was issued to the workman as a punishment to the workman or that there did not exist exigencies of work and administrative requirement of services of the workman at the transferred place. He further admitted as correct that management did not conduct any domestic enquiry against the workman regarding alleged indiscipline as mentioned in the transfer letter.
27 In his cross examination MW2 Sh. Ravi Kumar also denied the suggestion that the workman was not supplied with the copy of appointment letter or that workman was not given copy of any appointment letter by him. 28 This is the relevant evidence on this issue. The main contention of the management in written arguments is that the present claim relates to transfer of employee from one place to another in accordance with the conditions of service and keeping in view the nature of business of the management and having regard to commercial necessity, the claimant has been transferred as per the transfer clause of letter of appointment which is as under: LIR No. 1626/16 22/27 "THAT THE COMPANY SHALL HAVE ABSOLUTE RIGHT AND DISCRETION TO SHIFT AND/OR TRANSFER YOU FROM ONE SITE/PREMISES TO ANOTHER, WHETHER LOCATED IN DELHI OR OUTSIDE, IF THE EXIGENCIES OF WORK OF THE COMPANY SO DEMANDS. REFUSAL TO CARRY OUT SUCH ORDERS SHALL CONSTITUTE GROSS MISCONDUCT FOR WHICH YOUR SERVICES SHALL BE LIABLE TO BE TERMINATED".
29 On the other hand, in support of his contentions, Ld. AR for workman has relied upon following judgments:
A. Kundan Sugar Mills Vs Ziyauddin, AIR 1960 SC 650 wherein the Hon'ble Apex Court has held that: "it was not a condition of service of employment of the respondents either express or implied that the employer had the right to transfer them to a new concern started by him subsequent to the date of their employment".
B. Management of Rajasthan Patrika Vs Jasoda Singh, WPC No. 6621/2005, decided by Hon'ble High Court of Delhi on 04.07.2012 wherein the Hon'ble High Court of Delhi has held that: "there was no express agreement between the parties that the management had a right to transfer him from one office to another and that standing orders were not applicable to him".
C. Management of Rajasthan Patrika Vs Jasoda Singh, SPL No. 11871/2012. The said SPL was dismissed by the Hon'ble Apex Court. D. M/s Tabo Enterprises Ltd Vs Labour Commissioner, Civil Appeal No. 464/13, decided by Hon'ble Apex Court on 3.12.2015 wherein the LIR No. 1626/16 23/27 Hon'ble Apex Court held that: "the transfer of the employees was illegal".
30 Although perusal of clause (viii) of contract of employment Mark WW1/M3 shows that workman's job was transferable from one place to another. The workman has denied his signature on contract of employment MarkWW1/M3. This court is of the concerned opinion that once the workman has denied his signatures on contract of employment Mark WW1/M3, it was the bounden duty of the management to prove that the signature on contract of employment MarkWW1/M3 pertains to the workman. The management has not filed any application thereby seeking permission to lead evidence of handwriting expert to prove that contract of employment MarkWW1/M3 bears signature of the workman. This court has also compared signature of the workman put by him on application for employment Ex.WW1/M1 with the signature on contract of employment MarkWW1/M3 and prima facie same are not matching with each other. The management has also not examined its official who has issued the said contract of employment to the workman. From all these facts and circumstances, it is crystal clear that the management has prepared the contract of employment MarkWW1/M3 at a later stage in order to defeat the claim of the workman. This court is also in complete agreement with the aforesaid judgments relied upon by Ld. AR for workman since it has been proved on record that appointment letter or contract of employment Mark WW1/M3 was never issued to the workman by the management. Therefore, the workman cannot be said to have been bounded by the terms and conditions of appointment letter or contract of employment MarkWW1/M3. 31 According to the claim of the workman, when he refused the LIR No. 1626/16 24/27 management to leave the union the management with malafide intentions issued the agenda dated 01.05.2010 to the union which was replied by the union on 06.05.2010 and 07.05.2010 thereby opposing the same. Once the management has already been failed to prove that it had issued any appointment letter to the workman, this court is of the opinion that agenda dated 01.05.2010 was issued by the management just to victimize the workman by transferring him from Delhi to other State. Admittedly no chargesheet was issued to the workman for not joining the duties at transferred place. Even no enquiry was held by the management against illegal agitations of the workman. The act of the management shows that it was already in its mind that if it transfers the workman far away from Delhi the workman would not join his duties at transferred place, then only he can get rid off him. Keeping in view aforesaid law points and also keeping in view all these facts and circumstances, it is held that the transfer of workman from Delhi to Jorhat (Assam) by the management is illegal and/or unjustified.
32 As far as another contention of the management that the workman was transferred due to business exigency is concerned, the management has not placed on record any contract between it and its clients of other States, therefore, this court is of the opinion that in absence of such contracts this contention of the management is having no force. Further, the management has also not filed on record any documentary evidence to prove that its clients situated in Delhi had terminated the contract with it. Therefore, in absence of which it cannot be said that the management had lost its business in Delhi. The next contention of the management is that it has stopped its operation. The management even has not filed any documentary evidence on LIR No. 1626/16 25/27 record to prove that it has informed the competent authority regarding stopping of its operation. Therefore, this contention of the management is also having no force.
33 Issue no. 1 is decided in favour of workman and against management. ISSUE NO.3 (RELIEF) 34 As far as relief part is concerned, the workman has made a prayer in statement of claim that he is unemployed since the date of refusal of duty at Delhi and as such the management be directed to reinstate him in service with full back wages including benefits of continuity of service and all other consequential benefits. However, this court is of the opinion that since both the parties have lost faith in each other, reinstatement of the workman in service would not be in the interest of both the parties and the compensation in lieu of reinstatement would be a better option.
35 This court finds support from the judgment of the Hon'ble Supreme Court of India in case titled Employers, Management of central P & D Inst. Ltd Vs. Union of India & Another, AIR 2005 Supreme Court 633 wherein it was held that: "it is not always mandatory to order reinstatement after holding the termination illegal and instead compensation can be granted by the court."
Similar views were expressed by the Hon'ble Delhi High Court in case titled as Indian Hydraulic Industries Pvt. Ltd Vs Krishan Devi and Bhagwati Devi & Ors. ILR (2007) I Delhi 219 wherein it was held that: "even if the termination of a person is held illegal, Labour Court is not supposed to direct reinstatement along LIR No. 1626/16 26/27 with full back wages and the relief can be moulded according to the facts and circumstances of each case and the Labour Court can allow compensation to the workman instead of reinstatement and back wages."
36 Further, much time has elapsed since the date of refusal of duty at Delhi by the management, therefore, it cannot be presumed that the workman would remain idle for such a long period. Therefore, keeping in view all these facts and also keeping in view of the aforesaid law points, this court deems it appropriate to grant a lump sum compensation to the workman in lieu of his reinstatement. Accordingly, this court grants a lump sum compensation of Rs. 1,10,000/ (Rupees One Lac Ten Thousand only) to the workman in lieu of his reinstatement, back wages and consequential benefits. The amount of compensation shall be paid to the workman by the management within one month from the date when this award becomes enforceable failing which the amount shall carry an interest @ 9% p.a. from the date it becomes due till the time it is realized. Reference is answered and disposed off accordingly.
37 A copy of this award be sent to 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 as per rules.
Digitally signed by RAMESH KUMAR RAMESH Date:
KUMAR 2019.05.22
14:19:36
+0530
PRONOUNCED IN OPEN (RAMESH KUMARII)
COURT ON 20.05.2019 PRESIDING OFFICER:LABOUR COURT ROUSE AVENUE COURT: NEW DELHI LIR No. 1626/16 27/27