Delhi District Court
Labour Court No.Xx Fast Track Kkd. ... vs Show Cause Notice By The Management For ... on 12 February, 2007
IN THE COURT OF SH. SUDESH KUMAR PRESIDING OFFICER
LABOUR COURT No.XX FAST TRACK KKD. COURTS DELHI
ID 696/2006 (OLD No.285/1999)
BETWEEN
THE MANAGEMENT OF
M/s BAPU NATURE CURE HOSPITAL & YOGASHRAM
Gandhi Nidhi, Patparganj
Delhi 110 091.
...MANAGEMENT
AND
WORKMAN AVTAR SINGH FAUJI
A-24, Gali No.2,
East Vinod Nagar, Delhi ......WORKMAN
AWARD
Workman Avtar Singh Fauji has raised an Industrial dispute
against the management of M/s Bapu Nature Cure Hospital & Yogashram
for termination of his services by the management and on being satisfied
with regard to existence of an Industrial Dispute between the workman &
the management the appropriate Government vide order No.F.24 (3263)/99-
Lab/39627-31 dated 30.9.1999 referred the Industrial Dispute to the Court
with the following terms of reference:
Whether the termination of services of Sh. Avtar Singh Fauji
by the management is illegal and/of unjustified and if so, to
what relief is he entitled and what directions are necessary in
this respect?
Workman filed his statement of claim stating therein that he
has been employed with the management since November 1988 as a Driver
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and he was the permanent staff of the management and the duty of the
workman was usual as of a normal driver. The management had no
complaint against the performance & the conduct of the workman. The
workman had been working honestly, efficiently & diligently and never
gave any chance of complaint whatsoever, to the management during his
tenure of service with the management. From time to time the workman
was appreciated by the management. The workman was required to do the
overtime job and to perform the duties even on weekly off days but he was
not paid for overtime work and for weekly off days. The workman had been
demanding all the facilities under the Labour Welfare Legislation but
instead of redressing the grievances of the workman, the management in
order to harass and victimize the workman made a calculated plan. The
management had not been paying the wages of the workman in time and
the over dues of the overtimes. The workman protested against the unfair &
illegal practice adopted by the management. The management has not paid
the earned wages of the workman from the month of March 1998. The
workman was not allowed to join his duties by the management since
24.9.1998. The workman had been protesting against the illegal and unfair
practice of the management. The workman protested against management's
illegal practice of not providing the PF Scheme to the workman. The
workman filed the complaints against the management to the Regional
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Provident Fund Commissioner on dates such as 31.3.1998, 25.5.1998 &
8.6.1998 and also prior to that met the Provident Fund Officials to seek
redressal of his grievances. On this the management became hostile and
inimical to the workman and started coercive action against the workman.
The workman lodged a report with the police (Deputy Commissioner of
Police, Shahdara, Delhi) on 21.7.1998. The management was not paying
the Provident Fund to the workman till 31.3.1998. The workman requested
the management to pay provident fund since 1988. On persuation of the
workman the authorities investigated the matter and action was initiated. In
order to harass the workman the management transferred the workman to
DDA multi gym, Mandawali Fazalpur, IP Extension, Delhi on 4.7.1998.
The workman had been reporting regularly to work at multi-gym
Mandawali Fazalpur, Delhi. A charge sheet dated 11.7.1998 containing
baseless allegations was served upon the workman by the management. The
workman replied the charge sheet vide reply dated 22.7.1998. Thereafter
the management has not taken any action against the workman. The
management has falsely informed various authorities such as police, PF
authorities etc. The management lodged a false report against the workman
on 7.7.1998 with the police station Trilokpuri, alleging that the workman
was a daily wage person and removed official documents This plea of the
management that the workman is a daily wage person is contrary to the list
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of their staff dated April 1998 wherein the workman was shown as regular
employee. The management pressurized Chhotey Lal son of Sh.Sukhdev
Verma to make false complaint against the workman and the said Chhotey
Lal did the same under the pressure of the management but said Sh.Chhotey
Lal, later on, on 22.7.1998 made a statement before the SHO PS
Trilokpuri, that his report against the workman was false and was lodged at
the behest of the management under pressure. Not only this, the
management went up to the extent that it got issued a false warrant against
the workman from the Court of Smt.Bimla Singh, CJM Raipur, under
section 302/376 IPC. The Local police of PS Trilokpuri, in pursuance of
the warrant tried to arrest the workman. However, the workman escaped
from the false arrest and moved an application for anticipatory bail under
section 438 Cr.PC before the District & Sessions Judge. Delhi. On hearing
the application the Court also casted doubts about the genuineness of the
warrant and thereafter the workman visited the CJM Raipur Court, for
surrender but he was shocked to see that the Court of CJM Raipur reported
that no such case was registered in Raipur against the workman and the
warrant was false and the CJM Raipur vide order dated 26.11.1998 wrote to
the Police Commissioner Delhi that the said warrant was a forged one. The
workman also reported the said matter to the Commissioner of Police but
till now no action has been taken by the Commissioner of Police in the
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matter. The workman filed a complaint dated 13.7.1998 & 22.7.1998 in the
office of Labour Commissioner. The Labour Inspector Sh.BB Sehgal
visited the above said Trust and held enquiries on 14.7.1998 and filed the
report on 27.8.1998 whereby he recommended the case to be sent to the
Conciliation Officer. The workman had filed a complaint dated 3.8.1998
with the office of Labour Commissioner. The management transferred the
workman back to the Hospital but no compliance of the requisite norms
was done by the management. Further the Director of the management
lodged a false complaint dated 24.9.1998 against the workman with
Trilokpuri police station alleging that the services of the workman had been
terminated more than four months back and the workman keeps on coming
to the premises of the hospital to create breach of peace and to threat the
management. This was done by the management of the said Hospital to
create grounds for the termination of services of the workman. On
20.10.1998 the workman sent a demand notice to the management through
his counsel Sh.Ajit K.Singh & Company for taking the workman on duty
and complying with the provisions of law and the workman also claimed
his earned wages & overtime. The management did not comply with the
said notice. The workman made a representation to the Labour
Commissioner and filed a statement of claim but due to the adamant nature
& behaviour of the management no settlement could be arrived at before
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the Conciliation Officer. The management has threatened to liquidate the
workman physically in case he dared to visit the office of the management
to join his duty. No domestic enquiry was conducted against the workman.
The action of the management in terminating the services of the workman
is most arbitrary, illegal &unjustified and amounts to unfair labour practice
and is an act of victimization. The act of the management is also violative
of sections 25-E, G & H of the Industrial Dispute Act. The workman is
entitled to reinstatement with full back wages, continuity of service
alongwith consequential benefits and for overtime. The matter was raised
before the Conciliation Officer at Shahdara. The management took
dishonest and unfair stand and did not take the workman on duty. No
settlement could be arrived at and the matter was sent to the Court for
adjudication. Accordingly it has been prayed that an award may be passed
in favour of the workman directing the management to reinstate the
workman with continuity of service & full back wages alongwith
consequential benefits including overtime & weekly off days. The
workman has also prayed for cost of litigation.
The management contested the claim of the workman and filed
written statement stating therein that the terms of reference made by the
secretary(Labour), Govt of NCT of Delhi, are totally misconceived,
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untenable and without application of mind in as much as there was no
termination of service of the applicant by the respondent and it was the
applicant who had abandoned the job of his own when he was issued a Show Cause notice by the management for various misconducts on his part and hence the terms of reference being null & void, ab initio are liable to be quashed. It has been denied that the applicant was in the employment of the management since November 1988 and there was no complaint against the performance and conduct of the applicant. The management has denied that the applicant worked honestly, efficiently & diligently and he never gave any chance of complaint during the tenure of service. It has been submitted that the applicant has committed various misconducts including misbehaviour with other staff and insinuation against women employees of the respondent. Not only this he had been in jail for misbehaving and molestation with the Ladies' Staff of Bapu Public School which is situated adjacent to the hospital run by the respondent. The claimant was non co- operative and having stubborn attitude towards superior colleagues and he caused disturbances in the smooth functioning of the hospital. He had been indulging in illegal activities and spreading rumours against the officials and functionaries of the respondent thereby causing substantial damage to the goodwill of the respondent. He was habitual of quarreling with the hospital staff and shopkeepers in the close vicinity of the campus and even -8- with the patients. The respondent had received so many complaints from its staff, employees and the neighbours against the applicant. Not only this, the applicant had taken away some records from the office of the respondent and filed various complaints before the various authorities causing pecuniary loss to the management. The applicant was working as a Personal driver of the director of the respondent. It has been denied that the applicant was required to do any overtime job or was required to work on weekly off days. The management has denied that the applicant ever raised any demand from the respondent and the respondent made any plan to harass and victimize the applicant. It has been denied that the wages of the claimant were not paid since March 1988. It has been submitted that due to mischievous and malafide attitude of the applicant and on his request his services were transferred to Mandawali which is very close to his residence but he refused to join the duties at Mandawali and started threatening the staff officials, directors & Trustees of the respondent. It has been denied that the applicant was not allowed to join the duty since 24.9.1998.It has been stated that in fact the applicant abandoned the job since May 1998 and did not report for duty. There was no illegal and unfair practice on the part of the respondent. The management has denied that the respondent became hostile and inimical to the applicant. It has been submitted that all the complaints filed by the applicant against the respondent were false and -9- defamatory and the same is evident from the fact that the applicant had taken away the record of the respondent in an illegal and unauthorized manner. It has been denied that the applicant was transferred by way of harassment to him. It has been submitted that the applicant while replying to the show cause notice leveled totally false and defamatory allegations against the director of the respondent which shows that how much poison was filled within the applicant against the respondent on account of his strained relationship with the director of the respondent. The respondent also submitted to prove the charges before the Court within the provisions of section 11 of the ID Act. It has been denied that any false report was lodged by the respondent against the applicant and the respondent pressurized any Chhotey Lal to lodge a complaint against the applicant. The management has submitted that it never got any warrant issued from CJM Raipur against the applicant. The respondent has lost confidence and are feeling risky or hazardous, the visits of the applicant to the hospital of the respondent at Patparganj. The respondent has lost confidence due to various misconducts committed by the applicant and strained attitude of the applicant against the respondent. The respondent sought permission to prove the charges leveled against the applicant by the respondent in the Show Cause notice dated 11.7.1998. It has been denied that the matter could not be settled before the Conciliation Officer due to adamant attitude -10- of the respondent. It has been submitted that on the contrary it was the applicant who did not want to settle the matter and raised a demand of exorbitant amount for which the respondent was unable to meet out. The applicant is a habitual offender and he had been taken into custody 2-3 times and was also sent to Tihar Jail on the basis of various complaints made by the neighbours of the respondent hospital. Not only this, an enquiry was also made by the Intelligence Department on the complaints of the residents of West Vinod Nagar and in fact he had caused a public nuisance in the vicinity of the respondent hospital which is being run on charitable basis and for the cause of Mahatma Gandhi. The services of the applicant were not terminated but it was the applicant who himself abandoned the job, as such he is not entitled to reinstatement in service of the respondent. It has been denied that the applicant is unemployed. The management has stated that as per its knowledge the applicant is gainfully employed. The management has denied all other allegations made by the workman against the management, in his statement of claim and has prayed that the claim of the claimant may be dismissed.
Workman filed rejoinder to the written statement and controverted all the averments made by the management and reiterated his stand.
From the pleadings of the parties the following issues were -11- framed
1. Whether the claimant abandoned the employment on his own since May 1998?
2. As per terms of reference.
The workman in order to prove his case, filed his evidence by way of affidavit & examined himself as WW-1 and relied upon the documents Ex.WE-1/A, Ex.WE-1/B to E & Ex.WE-1/F-1 & F-2, Ex.WE-1/G & H Ex.WE-1/I, J & K and Ex.WE-1/L, M, N & O and thereafter workman evidence was closed. On the other hand, the management in order to prove its stand, examined HC - Jai Prakash Sharma as MW-1, Sh.Inderjeet Kumar LDC from Record Room (Crl.) as MW-2 and filed affidavit of Sh. Sukumaran KP, and examined him as MW-3 and relied upon the documents Ex.MW-3/1 to Ex.MW-3/13 and thereafter management evidence was closed.
Final arguments heard, file perused. Issue-wise discussion is as under:
ISSUE No. 1
MW-3 - Sukumaran KP in his affidavit has deposed that the respondent transferred the services of the claimant from Patparganj to Mandawali which was very closed to the residence of the claimant in March 1998 but the claimant did not join the duty and abandoned the job in an illegal and -12- unwarranted manner whereas the claimant while appearing as WW-1 in his cross-examination has specifically stated that he reported for duty at Mandawali but the management had written a letter "No Staff on duty". The management has failed to prove that the workman did not report for duty at Mandawali. Further MW-3 in his affidavit had stated that the respondent allowed the claimant to join the duty at Patparganj on 27.8.1998 with the intervention of the Labour Inspector but the claimant again abandoned the job and did not report for duty thereafter. Now even if it is admitted that the claimant did not join the duty at Mandawali in pursuance to his transfer order the management has condoned his this act as the management permitted the claimant/workman to join the duty on 27.8.1998. The workman during his cross-examination has stated that he joined the duty on 27.8.1998 and has voluntarily stated that he was again refused duty on 24.9.1998. The management has failed to produce on record any letter to show that the management ever asked the workman to join the duty after 24.9.1998. Accordingly it can not be said that the workman himself abandoned the job. Further during his cross-examination, MW-3 has not specifically denied the suggestion put by the AR of the workman that the claimant was not allowed to join duty or work because of enmity, rather he has stated that he has nothing to say regarding suggestion that the claimant was not allowed to join duty or work because -13- of enmity. This answer of MW-3 to the suggestion put by the AR of the workman to him clearly suggests that it was the management who refused duty to the workman and refusal to allow the workman to join duty amounts to termination. As such, I am of the considered opinion that the services of the workman were terminated by the management with effect from 24.9.1998 and the management has failed to prove that the claimant/workman abandoned the employment of his own since May 1998.
Issue No.1 is accordingly decided in favour of the workman and against the management.
ISSUE No. 2 The document Ex.WE-1/A placed on record by the workman clearly suggest that the workman was regular staff of the management and while adjudicating upon issue No.1 it has already been held that the services of the workman were terminated by the management with effect from 24.9.1998. Since no domestic enquiry was conducted against the workman no notice, no pay in lieu of notice was given to the workman prior to the termination of his services, the termination of the workman by the management is illegal and unjustified and is violative of the provisions of section 25-F of the Industrial Dispute Act. No doubt termination of the workman has been held illegal, unjustified and violative of provisions of -14- section 25-F of the Industrial Dispute Act but from the pleadings of the parties and from the documents placed on the record, I am of the considered opinion that the relationship between the workman and the management are not cordial, accordingly I am of the opinion that it is not a fit case for reinstatement of the workman and the ends of justice will be served if a lump sum compensation is awarded to the workman in lieu of reinstatement & back wages. As such, keeping in view the facts and circumstances of the case, nature of the job held by the workman and length of his service, a lump sum compensation of Rs.60,000/- (Rupees sixty thousand only) is awarded to the workman in lieu of reinstatement & back wages. Award is passed accordingly and the reference is answered accordingly. Copies of the award be sent to the appropriate Government for publication. File be consigned to the record room after necessary compliance.
Announced in the open court
on this 12th day of February 2007 (SUDESH KUMAR)
Presiding Officer - Labour Court No.XX
(Fast Track) Karkardooma Courts Delhi