Delhi District Court
Vide Order No. F.24(1034)/2003/Lab ... vs Union on 17 December, 2015
IN THE COURT OF SHRI UMED SINGH GREWAL
POLCXVII ROOM NO. 22 :KKD COURTS: DELHI
ID No. 40/14/03
Unique ID No.02402C0078292003
M/s. Sogan Lamination,
Nilothi Marth, Shiv Ram Park,
Nangloi, Delhi41
............. Management
Versus
Sh. Parmod Diwedi.
C/o Ajad Hind Majdoor Union,
L256, J.J. Colony, Wazirput, Delhi52
..............Workman
DATE OF INSTITUTION : 29.10.2003.
DATE ON WHICH AWARD RESERVED : 17.12.2015.
DATE ON WHICH AWARD PASSED : 17.12.2015.
A W A R D :
1. Vide Order No. F.24(1034)/2003/Lab 1117882
dated........, issued by Government of NCT of Delhi, a reference
ID No.40/14/03 1/15
was sent to this Court with the following terms:
"Whether the services of Sh. Parmod Diwedi
S/o Sh. Radha Raman Diwedi, have been
terminated illegally and / or unjustifiably by
the management, and if so to what relief is
he entitled and what directions are
necessary in this respect?
2. Claimant's case is that he had worked with the
management for two years as helper at the last drawn salary of Rs.
1550/, diligently and honestly but the management was not giving
him benefits like appointment letter, identity card, leave register
etc. He was forced to work for extra three hours everyday but no
overtime wages were given to him. He had sustained injuries on
hand during employment. Labour officials had inspected the
factory of the management situated at Nangloi on 10.09.2002 and
thereafter, the management of Nilothi More started asking all the
workmen to sign on Rs. 2660/ but actually they were given only
Rs. 1550/ per month. He protested against that practice saying that
he would sign on that amount only if he was given Rs. 2660/ per
month as salary. When he reached to the gate of the factory on
11.09.2002, he was not allowed to enter and the only reason was
that he had refused to sign the wage register. In this way, his
ID No.40/14/03 2/15
services were terminated without any notice, notice pay, charge
sheet and domestic enquiry against which he had sent management
a demand notice on the same date i.e. 11.09.2002 but needful was
not done. He filed a case before conciliation officer but the
management showed no interest in resolving the case.
3. Written statement is to the effect that there was no
relationship of employer and employee between management and
claimant. In fact, claimant was appointed as helper in the factory of
the management by a contractor M/s. J.K. Enterprises, 547/1, Bhim
Palace, Near UBI, New Railway Road, Gurgaon on 12.11.2001.
He was covered under ESIC No. HR137726595.
4. Following issues were framed on 20.03.2007:
(i) Whether there existed relationship of workman
and employer between the parties? OPW.
(ii) As per terms of reference.
(iii) Whether the business of the respondent is closed
as pleaded at page 3 of the written statement?
(iv) Relief.
5. In order to prove the case, claimant tendered his ID No.40/14/03 3/15 affidavit in evidence as Ex.WW1/1 stating all the facts mentioned in statement of claim. He relied upon five documents from Ex.WW1/1 to Ex.WW1/5. Ex.WW1/1 is demand notice sent to management vide postal receipts Ex.WW1/2 and Ex.WW1/3. Ex.WW1/4 is order dated 15.01.2006 passed by Lok Adalat Judge Mr. Ashutosh Kumar in a criminal case u/s 287 IPC which was settled by proprietor with the claimant. Ex.WW1/5 is joint statement of three accused namely Harish Chander / owner of management, Surender Pal Jaiswal and Rama Prasad Chaudhary vide which they pleaded guilty u/s 287 IPC. Statement of claimant also recorded in which he stated that he had settled criminal case with the management in Rs. 30,000/.
6. The management examined its authorized person Sh. Sujeet Yadav as MW1 who stated in his affidavit in evidence that claimant was never employed by the management. He was employee of a contractor namely M/s. J.K. Enterprises who had employed him on 12.11.2011 as loading/unloading helper. Claimant's ESIC No. is HR137726595. He relied upon the agreement between management and the contractor for supplying of the work force as Ex.MW1/M1. ESI Card, wage register for the ID No.40/14/03 4/15 month of November, 2001 and muster roll for the same month are also Ex.MW1/1 (collectively).
Issue No. 1.
7. Claimant's case is that he had worked with the management for two years at the last drawn salary of Rs. 1550/ as helper when his services were terminated verbally on 11.09.2002. He further deposed that during employment, he had sustained injuries in hand. On the other hand, case of the management is that claimant was employee of M/s. J.K. Enterprises and he was deployed to its factory by that contractor.
8. Contract agreement Ex.MW1/1 was executed between management and M/s. J.K. Enterprises whereby M/s. J.K. Enterprises had agreed to supply manpower to the claimant. As per ESIC Card, the employer of the claimant was M/s. J.K. Enterprises. His date of appointment is mentioned as 12.11.2001. Muster roll for the month of November, 2001 also shows that the claimant, whose name is mentioned at serial no. 7, was deployed by M/s. J.K. Enterprises to the premises of the management. All these documents are sufficient for a layman to reach to the conclusion ID No.40/14/03 5/15 that the claimant was employee of M/s. J.K. Enterprises and not of management. But if these documents are read in juxtaposition with other documents, it becomes clear that he was employed not with M/s. J.K. Enterprises but with management because wage register Ex.MW1/1, filed by management itself, is in contradiction to management's case as the register shows that the wages were being paid to the claimant by the management and not by M/s. J.K. Enterprises. That fact is reflected in the wage sheet for the month of November, 2001. That conclusion is further strengthened by criminal proceedings. FIR No. 1048 u/s 287, 338 IPC was registered on 21.11.2001 in PS Nangloi on the statement of the claimant. It is mentioned in the statement of the claimant that he was employed with the management owned by Sh. Harish Chander Kumar. Police had filed charge sheet against three persons including accused no. 1 Harish Chander Kumar who is none else than the proprietor. During trial, the criminal case was settled by the claimant with the management. All three accused including owner Sh. Harish Chander Kumar made statement that they were voluntarily pleading guilty. On the statement of all three accused and claimant, the Lok Adalat Judge Sh. Ashutosh Kumar passed order dated 15.01.2006 observing that the matter was compounded ID No.40/14/03 6/15 between the parties. For the injuries sustained during employment, the claimant had filed a compensation case against the management. In that case also, the management had taken the defence that the claimant was not its employee and that he was deployed by M/s. J.K. Enterprises. The management could not substantiate that defence and hence, that issues was decided against it by Sh. K.K. Verma, Commissioner, Employees' Compensation, vide order dated 03.10.2012.
9. In view of above discussion, this issue is decided in favour of claimant and against management.
Issue No. 2.
10. It is not the case of the management that any notice or notice pay or retrenchment compensation was given to the claimant before terminating his services. It is not its case that any charge sheet was given or any domestic enquiry was conducted. Its defence was that claimant was not its employee and that has already been found false. Termination of service of the claimant by management in that manner in violation to Section 25F of I.D. Act, ID No.40/14/03 7/15 1947. So, this issue is decided in favour of claimant and against management.
Issue No. 3:
11. The management did not lead any evidence that it has closed its business. So, this issue is decided against the management and in favour of claimant.
Issue No. 4:
12. Even if, services of a workman have been terminated illegally, that does not automatically lead to reinstatement and 100% back wages. In Nehru Yuva Kendra Sangathan Vs. Union of India & Ors. 2000 IV AD (Delhi) 709, Hon'ble Delhi High Court dealt with the question of reinstatement and back wages and observed in paragraphs 27 and 28 as under : "27. We find from the decision of the Supreme Court rendered in the 1970s and 1980s that reinstatement with back wages was the norm in cases where the termination of the services of the workman was held inoperative. The decisions rendered in the 1990s, including the decision of the Constitution Bench in the Punjab Land ID No.40/14/03 8/15 Development and Reclamation Corporation Ltd., Chandigarh seem to suggest that compensation in lieu of reinstatement and back wages is now the norm. In any case, since we are bound to follow the decision of the Constitution Bench, we, therefore, conclude that reinstatement is not the inevitable consequence of quashing an order of termination; compensation can be awarded in lieu of reinstatement and back wages.
28. Considering the facts of this case, we are persuaded to award compensation in lieu of reinstatement and back wages to the workman"
13. In Municipal Council, Sujanpur Vs. Surinder Kumar 2006 LLR 662, Hon'ble Supreme Court observed that the relief of reinstatement is not automatic but is in the discretion of the court. In paragraph 16, it was observed as under : "Apart from the aforementioned error of law, in our considered opinion, the Labour Court and consequently the High Court completely misdirected themselves insofar as they failed to take into consideration that relief to be granted in terms of section 11A ID No.40/14/03 9/15 of the said Act being discretionary in nature, a Labour Court was required to consider the facts of each case therefor. Only because relief by way of reinstatement with full back wages would be lawful, it would not mean that the same would be granted automatically".
14. In Vinod Kumar & others vs Salwan Public School & others WP(c)5820/2011 dt.17.11.2014 Hon,ble Justice V. Kameshwar Rao has held as under:
11.Having considered the rival submissions of the counsels for the parties, I do not find any infirmity in the order of the Labour Court. It is a settled position of law that even if termination has been held to be illegal, reinstatement with full back wages is not to be granted automatically. The Labour Court is within its right to mould the relief by granting a lumpsum compensation. In fact, I note that the Labour Court has relied upon three judgments propounding the law that the Labour Court can mould a relief by granting lump sum compensation; the Labour Court is entitled to grant relief having regard to facts and circumstances of each case.
12. Further, the Supreme Court in the following judgments held as under:
ID No.40/14/03 10/15
(a) In the matter reported as Jaipur Development Authority v. Ramsahai, (2006) 11 SCC 684, the court has stated:
"However, even assuming that there had been a violation of Sections 25G and 25H of the Act, but, the same by itself, in our opinion, would not mean that the Labour Court should have passed an award of reinstatement with entire back wages. This Court time and again has held that the jurisdiction under Section 11A must be exercised judiciously. The workman must be employed by State within the meaning of Article 12 of the Constitution of India, having regard to the doctrine of public employment. It is also required to recruit employees in terms of the provisions of the rules for recruitment framed by it. The respondent had not regularly served the appellant. The job was not of perennial nature. There was nothing to show that he, when his services were terminated any person who was junior to him in the same category, had been retained. His services were dispensed with as early as in 1987. It would not be proper to direct his reinstatement with back wages. We, therefore, are of the opinion that interest of justice would be subserved if instead and in place of reinstatement of his services, a sum of Rs 75,000 is awarded to the respondent by ID No.40/14/03 11/15 way of compensation as has been done by this Court in a number of its judgments."
(b) In the matter reported as Nagar Mahapalika v. State of U.P., (2006) 5 SCC 127, the court has stated:
"23. Noncompliance with the provisions of Section 6N of the U.P. Industrial Disputes Act, although, may lead to the grant of a relief of reinstatement with full back wages and continuity of service in favour of the retrenched workmen, the same would not mean that such a relief is to be granted automatically or as a matter of course. 25 .....The appellant herein has clearly stated that the appointments of the respondents have been made in violation of the provisions of the Adhiniyam. An appointment made in violation of the provisions of the Adhiniyam is void. The same, however, although would not mean that the provisions of the Industrial Disputes Act are not required to be taken into consideration for the purpose of determination of the question as to whether the termination of workmen from services is legal or not but the same should have to be considered to be an important factor in the matter of grant of relief. The Municipal Corporation deals with public money. Appointments of the respondents were made ID No.40/14/03 12/15 for carrying out the work of assessment. Such assessments are done periodically. Their services, thus, should not have been directed to be continued despite the requirements therefor having come to an end. It, therefore, in our considered view, is not a case where the relief of reinstatement should have been granted."
(c) In the matter reported as Talwara Coop. Credit and Service Society Ltd. v. Sushil Kumar, (2008) 9 SCC 486, the court has stated:
"8. Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section 11A of the Industrial Disputes Act, 1947 are required to strike a balance in a situation of this nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment viz. whether the appointment had been made in accordance with the statutory rules so far as a public sector undertaking is concerned, etc., should be taken into consideration."
(d) In the matter reported as Jagbir Singh v. Haryana State Agriculture Mktg. Board, (2009) 15 SCC 327, the court has stated :
"7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the ID No.40/14/03 13/15 termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. ...
14. An order of retrenchment passed in violation of Section 25F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee."
15. The claimant had worked with the management only for two years at the last drawn salary of Rs. 1550/ per month. His services were terminated long ago. It is very much possible that if reinstatement is allowed, his services may be terminated again. ID No.40/14/03 14/15 Taking into account the length of service and last drawn salary, a lumpsum compensation of Rs. 50,000/ (Rupees Fifty Thousands Only) is granted to the claimant. The management is directed to pay the said amount to the claimant within a month from the date of publication of this award failing which it shall be liable to pay interest @ 9 per cent per annum from today till realization. Reference is answered accordingly. Award is passed accordingly.
16. The requisite number of copies be sent to the Govt. of NCT of Delhi for publication of the award. File be consigned to Record Room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 17.12.2015. POLCXVII/KKD, DELHI. ID No.40/14/03 15/15