Delhi District Court
The vs The on 24 January, 2008
COURT OF MS. SUJATA KOHLI
PRESIDING OFFICER LABOUR COURT II,
ROOM NO. 48, KARKARDOOMA COURTS, DELHI
I.D. No. : 62/2006
B E T W E E N
The Workman, Sh. Mahipal Singh C/o All India General Mazdoor
Trade Union, 170, Balmukund Khan, Giri Nagar, Kalkaji, New
Delhi19.
A N D
The Management, M/s M.V.S Engineering Ltd., E24, East of
Kailash, New Delhi65.
A W A R D
1.Reference was sent by Sh. Narender Kumar, Secretary Labour, Government of NCT, Delhi on 01/08/2001 vide reference No. F.24(1240)/2001Lab./680509 pertaining to an Industrial Dispute between the management of M/s M.V.S. Engineering Ltd. and its workman Sh. Mahipal Singh, in the following terms of reference: "Whether the services of Sh. Mahipal Singh have been terminated illegally and/or unjustifiably by the management, and if so, to what sum of money as monetary relief along with consequential benefits in terms of existing laws/Govt. Notifications and if so to what other relief is he entitled and what directions are necessary in this respect?".
2. Pursuant to the reference, claim was filed by the workman Mahipal Singh stating therein that he had been working as an Ad. Assistant with the management since 14/06/95 at his last drawn salary @ Rs. 4450/ per month. During his entire service tenure, he never gave any cause of complaint to the management but even so management was not providing the legal facilities like annual earned leave and other legal benefits. When workman demanded for the said legal facilities, management got annoyed and with a view to victimize the workman, they terminated his service on 29/08/2000 without issuing him any charge sheet or even notice and they did not even pay his earned wages for the period from 01/11/99 till 28/08/2000. The termination of his service is claimed to be in violation of provisions of section 25F and various other provisions of I.D. Act.
3. On 19/09/2000, workman sent a demand notice vide Registered A.D. Post/Speed Post to the management demanding reinstatement and back wages. But inspite of receipt of the notice, management did not even reply to the same. A written complaint was lodged before Assistant Labour Commissioner through the union, pursuant to which labour inspector was appointed, but inspite of his efforts who pursued the management, management failed to take back the workman on duty or even to pay his earned wages.
4. Claim was filed before the conciliation officer wherein also the management failed to appear inspite of receiving notice and ultimately dispute was referred to court.
5. It is further stated by workman that management is exploiting workmen and the moment workmen raised any rightful demand, management terminates their service and thus they exploit the workmen.
6. Workman also states that management has already appointed some other person in place of the workman and the workman is continuing to be unemployed ever since his wrongful termination inspite of his best efforts to obtain an alternative job.
7. It is further the grievance of the workman that management was obtaining 12 hours work from the workman while they were paying him only for 8 hours, depriving him of his overtime dues. Workman prays for reinstatement with continuity of service as well as full back wages and his earned wages and all other consequential benefits.
8. Management, in their written statement, has raised several preliminary objections. Firstly, that management has never terminated the service of the workman and that the present claim is premature. As per the management, there is no dispute much less Industrial Dispute between the parties and workman has suppressed material facts from the court. It is stated that it is the workman himself who was absenting from duties w.e.f. 08/11/99 and he did not turn up inspite of several notices/letters sent from management dated 11/11/99, 31/12/99, 18/01/2000, 08/02/000, 06/03/2000, 05/04/2000, 09/06/2000, 04/07/2000, 07/08/2000, 05/09/2000.
9. Management also served a show cause notice upon the workman on 04/10/2000 along with annexure stating total 331 days of absence on part of the workman i.e from 08/11/99 till 04/10/2000. No reply/explanation was received by the management and then management having no other alternative served a charge sheet upon the workman dated 13/11/2000 and same was dispatched on 23/11/2000 to the workman. Workman sent a reply to the charge sheet dated 13/11/2000, but the said reply was found not satisfactory. As such, management appointed an inquiry officer Sh. Ashok Gulati, Advocate to inquire into the charges leveled against the workman. Thereafter, inquiry officer served a notice dated 19/12/2000 to the workman as well as to the management for conducting inquiry. Since 28/12/2000 inquiry was stated to be still going on and the workman was also stated to be participating in the inquiry proceedings continuously. The next date of inquiry proceeding was stated to be 18/10/2002. It is stated that workman has suppressed all these material facts from the court, as such, the claim is liable to be dismissed with cost. The W/s was filed on 30/09/02.
10. In reply on merits, the service record i.e date of appointment, post held and wages of the workman are not denied. However, it is stated that performance of the workman was not upto mark. Management had advised the workman many times to perform his duties properly, but he never paid any heed to the same.
11. It is vehemently denied that workman demanded any legal facilities from the management and as a result of the said demand, management got annoyed and terminated his service. The contents of preliminary objections are again reiterated with regard to there being no Industrial Dispute and that it is the workman who had remained absent and that inquiry is still going on with regard to his alleged misconduct of continued unauthorized absence.
12. It is further stated that workman has remained unauthorizedly absent from duty of his own accord. A fair, proper and valid inquiry is being held against the workman and yet in case the inquiry is found to be vitiated in part or in whole by the court on any ground whatsoever, management reserves its right to prove the charge before this court by way of leading evidence on the charges leveled against the workman.
13. It is further stated that inquiry officer is giving full opportunity to the workman to participate in the inquiry and the workman is still defending himself before the inquiry officer. Inthis context, it is stated that the order of reference has been passed mechanically without application of mind by the Secretary Labour, Government NCT of Delhi as there was no industrial dispute in existence as on date of reference. Inquiry was still pending and workman continued to be employee of the management.
14. As regards the claim of the workman of remaining unemployed since date of his termination, it is denied; and it is stated that since date of his absence from duty workman has been gainfully employed for better prospects and in other words it is because of his gainful employment with better prospects that workman absented himself of his own accord in an absolutely unauthorized manner.
15. As regards the allegation of overtime, management has denied the same. They stated that workman never worked for 12 hours on any day with the management and as such there is no question of overtime. In the prayer clause, it is stated that workman is not entitled to any relief much less the relief of reinstatement, full back wages and continuity of service along with benefits as claimed or otherwise.
16. It is further prayed that in case the inquiry is found vitiated in part or whole on any ground, management reserves its right to prove the charges before this court by way of leading evidence on the charges leveled against the workman. In the end, it is pleaded that claim as filed be dismissed.
17. Rejoinder was filed to the written statement denying the contents of the W/s and reiterating those of the claim as true and correct.
18. On the basis of the pleadings of the parties, following issues were framed by my Ld. Predecessor on 13/12/2002: (1) As per terms of reference?
19. Management later on amended their W/s. Vide amended W/s, it has been stated that inquiry proceedings have already been concluded on 14/05/2003 and further that workman's service had been terminated vide letter of the management dated 30/12/03. It was further stated in para 3 of the amended W/s that workman had fully participated in the inquiry proceedings since 28/12/2000 till the conclusion of the inquiry proceedings on 14/05/2003.
20. In para 4 of the amended W/s, it is stated that workman's service was terminated vide letter dated 30/12/2003 after he was found guilty of charges leveled against him in the domestic inquiry. The inquiry was conducted in a fair and proper manner and also as per the rules of principles of natural justice. Workman has not challenged the termination order and, therefore, the claim of the workman may be rejected and since workman was dismissed from service on 30/12/03 after holding inquiry against him, the reference on this account is premature, illegal and liable to be quashed.
21. The contents of amended W/s have also been denied by the workman and those of the claim are reiterated as true and correct. He has also denied that he was dismissed from service on 30/12/03. As per the workman, his service had already been terminated on 29/08/2000 itself as already stated in his claim. As per the workman, a sham inquiry proceeding was commenced by the management, subsequent to termination of his service, which had already been done.
22. During evidence, workman examined himself as WW1 on his affidavit Ex. WW1/A. Besides, he tendered the following documents in his evidence:
1. Copy of demand notice dated 19/09/2000, Ex. WW1/1.
2. Postal receipts, Ex. WW1/2 & 3.
3. A.D. Card, Ex. WW1/4.
4. Copy of complaint lodged before Assistant Labour Commissioner dated 20/09/2000, Ex. WW1/5.
5. Labour Inspector report, Ex. WW1/6.
6. Copy of claim filed before conciliation officer, Ex. WW1/7.
7. Original notice issued from Assistant Labour Commissioner, Ex. WW1/8.
8. Copy of letter of workman to the management, Ex.WW1/9.
9. Time card, Ex. WW1/10.
10.ESI form, Ex. WW1/11.
11.Employees Pension Scheme form, Ex. WW1/12.
23. At the stage of workman evidence, it was submitted on behalf of management that an additional issue of inquiry should be framed, however, which was declined vide order of my Ld. Predecessor dated 06/07/04.This order happens to be material and is being reproduced herein for reference: "06/07/04 Present : A/R for the workman.
A/R for the management.
Cost of Rs. 500/ paid by AR for the
management to AR for the workman. No workman
witness is present.
Perusal of record reveals that on 13.12.02, issue has been framed: As per terms of reference, and thereafter an amendment has been sought by the management, taking the plea that the dismissal of the workman was as a result of enquiry. However, the fact remains that as per the statement of claim filed by the workman, the dismissal of the workman is by refusal of duties on 29.8.2000 which the management has denied, and the case of the management that in fact no dismissal had taken place on 29.8.2000, but has taken place in 2003 and that the workman was terminated on 30.12.2003 after he was served the chargesheet and after initiation of enquiry.
Further fact remains that due to pendency of the present reference, the management has also filed an approval application.
Since, the case of the workman is that, the dismissal was on 29.8.2000 and if the workman succeeds, then as a natural consequences, the enquiry conducted, will have no effect, as against dismissed workman, no further enquiry can be conducted and the plea is significant only as a defence and as such issue regarding the validity of enquiry is not required to be framed which is a subject matter of approval application. As such, no fresh issue is framed.
To come up for workman evidence on 07/08/2004.
Sd POLCII 06/07/04
24. Vide order dated 06/07/04 of my Ld. Predecessor (reproduced above) my Ld. Predecessor concluded that the cause of action of a claim would be determined on the basis of facts alleged as in the claim and not on the basis of defence of the management. Although specific words may not have been used, but in nutshell this is the underlined reasoning in the said order.
25. Workman was not cross examined by management inspite of repeated opportunities and same was closed vide order of my Ld. Predecessor. Management did not even lead any evidence. Management failed to lead any evidence of their own also and ultimately opportunity of the same was also closed vide order of my Ld. Predecessor.
26. It is, however, at this point there seems to be an error on the face of the record and case is shown by my Ld. Predecessor to have been fixed for arguments on enquiry issue for the next date instead of for final arguments and this error has gone on being carried on to the next date when for nonappearance of the management, once again, arguments are stated to have been heard on behalf of workman on enquiry issue and even the case was put up for orders on this issue.
As against the order dated 06/07/04 of the Ld. Transferrer Court whereby it was made clear that no fresh issue was to be framed and that the workman would lead evidence on merits and that there was no issue of enquiry in this case, in the order sheets starting from 18/09/06 onwards till 20/10/06, this error has been carried on. However, it was only on 28/10/06 when this case was listed for orders on enquiry issue, that my Ld. Predecessor has realized the error on the face of the record that there was no enquiry issue framed in this case. In the light of these facts, it was held to have become necessary to lead evidence on merits of the case in order to decide the issue framed on the basis of terms of reference by my Ld. Predecessor. Matter was again listed for filing of affidavit of the workman on 23/11/06. However, once again, it was ignored that evidence as already led by the workman had been on merits and not on enquiry issue. This error on the face of the record was corrected by my Ld. Predecessor vide his order dated 11/12/06 and it was clarified that the evidence was on merits and would be treated as such. It is however, quite relevant that throughout this trial, management failed to put in any appearance ever since 08/09/05. The last appearance on behalf of management was on 08/09/05 when the official of the management had appeared".
27. In his affidavit Ex. WW1/A workman has reiterated the contents of his claim statement. However, in his affidavit, he has also stated that on 23/11/2000, management sent to him a false charge sheet after the dispute between the workman and management had already been referred by the conciliation officer to court. Workman states that he had even sent a reply to the charge sheet on 30/11/2000 and in that letter also he demanded to be taken back on duty along with back wages.
28. In para 6 of his affidavit, he has also stated that management was pressuring him to tender resignation and asked the workman in January 2000 to fill up a PF form which workman refused to fill up.
29. In support of his claim, he has also relied upon the documents, above listed. The first document is the demand notice, contents of which are on the line as that of the claim and besides he has quantified the different amounts which are due to him as per his own calculations under different heads like bonus, leave encashment and weekly off encashment. This notice was dispatched by Registered A.D. Speed Post and the A.D Card thereof is bearing the name and address of the management and also the signature of a recipient is Ex. WW1/4. Since management has not rebutted the testimony of the workman and his documents, the documents stand proved even otherwise.
30. Ex. WW1/5 is the copy of the complaint lodged with Assistant Labour Commissioner on 20/09/2000 and bearing the contents similar as that of the claim before this court. A report of labour inspector has been tendered as Ex. WW1/6 and in this report it is stated that pursuant to the complaint lodged with the labour department, labour inspector visited the management premises on 11/10/2000, where he met Sh. Sudesh Behl, Chief Executive and the said officer refused to take back the workman on duty and also to pay his earned wages. Management also expressed inability to produce the record and, therefore, they were called upon to produce the record before the labour department on 12/10/2000, but management failed to even put in any appearance through any of their representative nor they sent any intimation.
31. Management was even challaned under the provisions of Minimum Wages Act 1948 since they had failed to produce the relevant record of wages inspite of being directed to do so. Thereafter, workman and his representative have been advised to seek proper remedy in the labour court. This report, which is an original report, and according to the workman is bearing the signature of the labour inspector, also remains unrebutted and as such stands proved.
32. Ex. WW1/7 is the copy of the claim as filed before labour conciliation officer and Ex. WW1/8 is the notice issued to the management for appearance before the Assistant Labour Commissioner
33. Ex. WW1/9 is the copy of the reply filed by the workman to the charge sheet/letter dated 23/11/2000 stating therein clearly that all the contents of the charge sheet are absolutely false and baseless. He has again demanded the management to take him back on duty along with back wages in this letter also.
34. Ex. WW1/11 is the ESI form19 stating the reason for leaving service in column 5 thereof as resigned and the date thereof as 05/11/99. These particulars are absolutely contrary to the own case set up by the management. This document is bearing the signature of a Personnel Officer and the official stamp thereof. As per the management, workman was dismissed after holding an enquiry, then where was the question of resignation and that too on a date absolutely contrary to the one stated in the amended W/s I.e 30/12/03. This ESI form which has been filled up by the management is showing the date of termination of leaving service by the workman as 05/11/99 and the reason as resigned. This substantiates the plea of the workman that management was pressurizing the workman to resign. This form is leaving all the particulars of the workman blank and which shows that it was prepared before hand and workman was only being asked to sign thereon at the proper column meant for signature or thumb impression of the member/workman. So is the case with Ex. WW1/12 which also is showing that management used to keep forms already prepared and ready merely to be signed by the applicant/workmen.
35. Workman by way of his detailed evidence has successfully established that he was employed with M/s M.V.S Engineering Ltd. w.ef. 14/06/95 as an Admn. Assistant at the last drawn salary @ Rs. 4450/ per month and that he had never gave any cause of complaint to the management. Further that management was not providing the legal facilities to the workman, and when workman demanded for the same, it annoyed the management to no end, as a result, management first tried to ensure that workman resigns but when he failed to do so, management terminated his service in an absolutely highhanded and arbitrary manner i.e by refusing duty to the workman on 29/08/2000. They failed to issue any charge sheet or even notice and even to explain any reason for such like decision of the management and as such the termination of service in this manner was not only violative of provisions of sections 25F, G & H I.D. Act but also violative of principles of natural justice being absolutely without any justification and being without giving any opportunity to the workman to be even heard.
36. Workman lost his livelihood because of the most unfair conduct on part of the management which amounted to an unfair labour practice as per the 5th Schedule to the I.D. Act.
37. Management also tried to wriggle out of the situation when faced with the claim of the workman, by holding an enquiry proceeding which was only a farce and an eyewash so as to deprive the workman even of his lawful right to seek legal remedy against his termination of service already done.
38. As per the settled law, refusal of duty to workman amounts to termination and it is not necessary that there has to be a termination order.
39. It stands established, without doubt, that workman having been wrongfully and illegally terminated from service deserves the relief of reinstatement with continuity of service and back wages or compensation in lieu of all the above.
40. Since it has already been a time span of eight years since the wrongful and illegal termination of his service and keeping in view all the facts and circumstances, I deem it appropriate to award compensation in lieu of reinstatement and back wages.
41. Although there are various recent judgments of the Hon'ble Supreme Court granting small amount of compensation ranging from Rs. 10,000/ to 25,000/, none of these judgments lay down any formula or guidelines to arrive at the said amount. However, in J.U. Akhtar Vs. Management of M/s Markfed Agro reported as 2006 VIII AD (Delhi) 33, the Hon'ble Delhi High Court has held that in such cases, the compensation cannot be less than the back wages he would otherwise be entitled to.
42. Accordingly, I award compensation to the tune of Rs. 4,37,200/ to the workman, including litigation expenses amounting to Rs. 10,000/. Reference is answered accordingly. Award is passed. Copy of the award be sent to appropriate government for publication within 30 days from the receipt of the award. File be cosigned to record room.
Announced in the open court Today on 24/01/2008 (SUJATA KOHLI) Presiding Officer Labour CourtII, Court No. 48, KKD Courts, Delhi.