Delhi District Court
The vs The on 31 May, 2008
COURT OF MS. SUJATA KOHLI
PRESIDING OFFICER LABOUR COURT II,
ROOM NO. 48, KARKARDOOMA COURTS, DELHI
I.D. No. : 43/98
Date of Institution of the case : 05/12/98
Date on which Judgment was reserved : 29/05/08
Date on which Judgment was pronounced : 31/05/08
B E T W E E N
The Workman, Sh. Udai Singh Rana, 52, Savitri Nagar, New Delhi17.
A N D
The Management, M/s F.C.B. Ulka Advertising Ltd., 811, Padma TowerI, 5,
Rajendra Place, New Delhi8.
A W A R D
1. Reference was sent by Sh. Chaman Lal, Secretary Labour, Government
of NCT, Delhi on 29/10/98 vide reference No. F.24(4511)/98Lab./3588892
pertaining to an Industrial Dispute between the management of M/s F.C.B.
Ulka Advertising Ltd. and its workman Sh. Udai Singh Rana, in the
following terms of reference:
"Whether the retrenchment of Sh. Udai
Singh Rana from services is illegal and/or
unjustified, and if so, to what relief is he
entitled and what directions are necessary
in this respect?".
2. Pursuant to the reference, claim was filed by the workman stating therein
that he had been employed with the management as a Driver vide offer letter
dated 24/04/87 and appointment letter dated 29/04/87. His appointment was
confirmed vide confirmation letter dated 30/04/87 and they also raised his
pay by an increment of Rs. 100/ per month vide letter dated 30/10/87.
3. Workman claims to have been working continuously with the
management with utmost honesty and dedication and it is his claim that even
he used to work at odd hours as and when required by the management. He
never gave any cause for complaint to the management. Management issued
appreciation letters from time to time.
4. As per the workman, on 12/03/97, while working with the management at
about 5.30 pm during course of his employment,he met with an accident and
got serious multiple injuries on his back bone, resulting in his complete
immoveable. Immediately after the incident, he was taken to hospital where
he remained admitted till 30/03/97. He spent a huge amount from his own
pocket for medical treatment.
5. Workman further pleads that while he was admitted in hospital, he
discovered that respondent/management had fraudulently made a insurance
claim against the injuries caused to the workman and the said money was preserved by the management without the knowledge of the workman/claimant. In order to save themselves from any liability or from being discovered the management in order to get rid of the workman, started making out as a case as if the company was suffering from huge losses and ultimately, the management vide its letter dated 02/02/98, retrenched the 12 years old dedicated service of the workman merely on ground that management was left with only one car.
6. As per the version of the workman, management's income was in crores and they had many other offices as detailed by him in the annexures and retrenchment of the workman on ground of nonavailability of the post was absolutely illegal and unjustified.
7. Workman initiated conciliation proceedings before conciliation officer where management filed a reply and workman also filed a rejoinder. Conciliation proceedings, however, failed and ultimately dispute was referred to court for adjudication.
8. As per the workman he had put in 12 years of prime youth in service of management and he has been removed without any rhyme or reason. Workman prays for reinstatement along with full back wages from the date of termination till reinstatement and besides he also claims the wages for the period from 23/03/97 till 07/07/97 when he was confined on account of his accidental injuries.
9. Management, in their W/s, in parawise reply have raised one legal objection that Labour Court has no jurisdiction to deal with the subject matter of retrenchment which is the exclusive jurisdiction of Industrial Tribunal.
10. On merits, workman's post, his date of joining, have been admitted and other details about his confirmation and increments etc. also are not denied. However, as regards performance of his duties, it has been stated that he was frequently advised and cautioned with regard to abiding by traffic rules and regulations and proper maintenance of the vehicle and if he was not issued any notice or charge sheet etc. it is because it is not the culture of the company to issue memo, charge sheet and such other letters.
11. According to management, workman was frequently remaining absent from his duties without prior permission/sanction and was also indulging in other acts of misconduct. Notwithstanding such behaviour on part of the management, management with a sole purpose of motivation and encouragement to the workman to perform better, as a practice, granted regular increments in his salary.
12. As regards the accident with which the workman has alleged to have met in the course of duties, it is the version of the management that workman on Sunday i.e 02/02/97 while going to Malviya Nagar Market slipped on a banana peel lying on the road. As a consequence of this accident, the workman concerned initially consulted an Ayurvedic Physician but did not get any relief and he continued to frequently remain absent and unwell. He suffered severe pain in his back. Upon enquiry, workman informed the management that he did not have sufficient funds to consult a good Orthopaedician. In such circumstances, the Administration Manager purely on humanitarian grounds personally took initiative in the matter and on 06/03/97 paid the workman an amount of Rs. 3000/ as loan from the medical account. The following day i.e 07/03/97, the workman visited the OPD at L.N.J.P Hospital.
13. The OPD treatment of workman continued during which workman was consulting various doctors at various hospitals. During this period, he was also being advised complete bed rest for long durations. There were tests like CTscan and there were treatments besides surgery was also to be done. Seeing all these, Manager Administration made personal efforts to obtain a sanction of Rs. 35,000/ being the estimated expenses towards the said surgery and this amount was sanctioned by the management company purely on humanitarian grounds and not as part of terms and conditions of service.
14. Manager Administration personally pursued the matter with the doctors and helped the workman in all possible ways. In fact, with the efforts of the Manager Administration, workman succeeded in undergoing the operation. Throughout thereafter the workman admittedly although employed in the service of the company as a driver was unable to discharge his duties, but even without performing his duties on any date after March 1997, he was still being paid salary of a driver upto January 1998 which amounted to Rs. 5010/ per month gross. Action of the management in this regard was purely on humanitarian consideration.
15. Management also pleads that they were well within their rights to have retrenched the service of the workman under I.D. Act and he would not have been eligible have payment of compensation even, but management took no such action.
16. Allegations of the workman with regard to the management fraudulently usurping his insurance claim is vehemently denied. It has been admitted by the management that workman was confined to bed for four months even after his discharge from the hospital and it is also admitted that doctors did not allow him to perform duties of a driver and recommended him light duty, desk job preferably with intermittent intervals.
17. In para 7 of the W/s, it is stated specifically by the management that it is not their case that company suffered huge losses. On the contrary, it is stated that company is not having any vehicle to entrust to the workman to drive on behalf of the company and in the absence of any vehicle it is not possible to avail the services of the workman and for this reason, he would be rendered surplus to the company and as such he was retrenched from service w.e.f. 09/02/98.
18. As per the management, the services of the workman were retrenched w.e.f. 09/02/98 simply for the above reason. Workman, according to management, has no claim or right whatsoever in respect of the employment with the company and even otherwise the terms of employment clearly stated that services of the workman as a driver were in respect of Delhi Branch Company and since management has no other branch in Delhi and further that management has no further requirement for a driver, hence, the question of employment of a driver cannot arise.
19. As per the management, the retrenchment of the workman has been in accordance with provisions of section 25F I.D. Act and as such workman should not be held entitled to any relief on the claim filed by him.
20. In the rejoinder filed by the workman he has denied the version of the management and reiterated his own stand as taken in the claim as correct.
21. On the basis of the pleadings, following sole issue was framed by my Ld. Predecessor on 28/01/2000:
1. To what relief, if any, is the workman entitled against the management in terms of reference?
22. During evidence, workman examined himself as WW1 on his affidavit Ex. WW1/A. Besides, he also relied on the following documents as under:
1. Appointment letter dated 24/04/87, Ex. WW1/1.
2. Letter dated 30/10/87 as per which I was confirmed in service, Ex. WW1/2.
3. Letter dated 30/04/88 as per which my basic salary was increased by Rs. 8000, Ex WW1/3.
4. Letter dated 01/10/88 as per which my salary was increased by Rs. 150/, Ex. WW1/3 (a).
5. Letter dated 25/07/89 as per which I got increment of Rs. 50/, it is Ex. WW1/3 (b).
6. Letter dated 20/06/90 as per which I got increment of Rs. 100/, Ex. WW1/3 (c).
7. Letter dated July 24, 1999 as per which I got increment of Rs. 150/, Ex. WW1/3 (d).
8. Letter dated 01/07/92 as per which my salary was revised, Ex. WW1/3
(e).
9. Letter dated 07/06/93 as per which my salary was revised, Ex. WW1/3
(f).
10. Letter dated 21/10/94 as per which my salary was increased, Ex. WW1/3
(g).
11. Letter dated 31/05/95 as per which my salary was revised, Ex. WW1/3
(h).
12. Letter dated 01/06/96 as per which my salary was revised, Ex. WW1/3
(i).
13. Letter dated 01/06/97 revising my salary, Ex. WW1/3 (j).
Besides, following document was exhibited by the workman during cross examination of management witness:
1. Copy of letter dated 12/02/98 from the workman to the management, MW1/W1.
23. Management, on the other hand, examined Sh. Manish Krishana, Manager Administration as MW1 on his affidavit Ex. MW1/A. Beside, he tendered the following documents in his evidence:
1. Letters dated 24/04/87, 30/10/87, 06/03/97, 30/04/88, 01/10/88, 25/07/89, 24/07/91, 01/07/92, 21/10/94, 01/06/96, 01/06/97, Ex. MW1/1, 2, 4, 5, 6, 7, 8, 9, 10, 12, 15 & 16 respectively.
2. Interoffice memo dated 06/01/97, Ex. MW1/3.
3. Salary statements, Ex. MW1/11, 13 & 14.
4. Copy of OPD card from LNJP Hospital, Ex. MW1/17.
5. Copy of postal receipt, Ex. MW1/18.
6. Copy of letter from New India Insurance Company to the workman, Ex. MW1/19 (3 pages collectively).
7. Copy of certificate from Bank of India, Ex. MW1/20.
8. Copy of A.D Card as well as returned registered A.D envelop, Ex. MW1/21.
24. Besides, management also confronted the workman with following documents during his cross examination:
1. Copy of attendance record, Ex. WW1/M1 collectively.
2. Copies of vouchers, Ex. WW1/M2, 9 & 10.
3. Copy of OPD prescription, Ex. WW1/M3.
4. Copy of OPD Card from Mool Chand Hospital, Ex. WW1/M4.
5. Copy of leave application record, Ex. WW1/M5.
6. Copy of OPD card from Ayurvedic Physician, Ex. WW1/M7.
7. Copy of letter from workman to the management dated 06/03/97, Ex. WW1/M8.
8. Copy of receipt from South Point Hospital, Ex. WW1/M11.
9. Copy of letter from management to the workman, Ex. WW1/M12.
10. Copy of letter from management to the workman dated 20/02/98, Ex. WW1/M13.
11. Copy of prescription, Ex. WW1/M14.
12. Copy of letter from management to the workman, Ex. WW1/M15.
25. Arguments were heard at length. I now proceed to decide the claim on merits on the basis of material on record, in the light of arguments addressed on behalf of both parties. My findings on the sole issue as framed by my Ld. Predecessor are as under: SOLE ISSUE
26. The sole issue as framed by my Ld. Predecessor is as to what relief, if any, is workman entitled against the management in terms of reference. The terms of reference are as to whether the retrenchment of Sh. Udai Singh Rana from service was illegal and/or unjustified, and if so, to what other relief he is entitled.
27. Present case is one where workman has come up with a grievance of 'termination' of service by the management in a highhanded and arbitrary manner and in an unjustified way while management has come up on the face of it, with the version that it was left with no car to be driven by the workman and which was the reason for his 'retrenchment' but the real facts which have emerged after considering the entire set of facts and circumstances available on record is an altogether different picture and which is that management wanted to get rid of the workman for various reasons like his habitual absence and careless driving of the car and other deficiencies in his performance. However, management has chosen to term the termination order as retrenchment so as to avoid the procedures involved before dismissing an old employee i.e to hold an enquiry and to prove the misconduct on the part of the workman. In fact, through and through, the pleadings of the management alone would clearly reflect that management was really not certain about what case they had to come up with until the end of the hearing also.
28. In any case, the relief, if any, to which the workman may be found entitled on the present claim would depend on the findings that whether the termination of his service was illegal and or unjustified.
29. At the threshold of final arguments on merits, Ld. AR for management firstly referred to the preliminary objection raised by the management in their W/s and i.e that retrenchment is not a matter within jurisdiction of Labour Court as item 10 of Third Schedule deals with the matter which are within the jurisdiction of industrial tribunal and which includes retrenchment of workman. No doubt, it is correct that retrenchment is a subject matter falling within the jurisdiction of industrial tribunal and not that of labour court as per the Third Schedule of I.D. Act. This objection would have applied well in the present case. Had it been a case of retrenchment as per the workman also. In fact, it is not only that workman has alleged the termination order as being punitive and having been passed solely with a view that management wanted to get rid of the workman and the management came up with a ground that there was no car available. As per the workman, the termination of his service is nothing short of dismissal/discharge. He had served to the management for 12 long years and in view of this the peculiar ground that management was left with only one car was absolutely incredible. From the remaining pleadings in this respect, it becomes clear that the case is actually not one of retrenchment and it is not retrenchment which is the subject matter of the case as far as claimant is concerned.
30. The Industrial Disputes Act, 1947 defines retrenchment as in section 2 (oo) as under: "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued illhealth.
31. There is a procedure and certain conditions precedent to retrenchment in order to make it legal and valid and which are laid down in section 25F I.D. Act which provides as under: "25F. Conditions precedent to retrenchment of workmen No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay [for every completed year of continuous service] or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette].
32. The words used are 'termination by the employer of the service of a workman for any reason whatsoever' otherwise than as a punishment inflicted by way of disciplinary action. In the present case from the entire claim as well as the contents of the W/s, it is not clear what was the real reason for termination of service of the workman, whether it was his alleged poor performance of duty or whether he had become surplus. Jurisdiction over a subject matter is always determined on the basis of the allegations levelled in the claim and not by what defence the management comes up with but even going by the defence of the management, as already above stated, the real reason behind termination of service of the workman was nonsatisfaction of the management with his work and the workman having become a liability to the management after his accident.
33. The shifting stand of the management firstly in their W/s would be much highlighted from the following relevant extracts from the W/s: "However, as regards the performance of duties, it it submitted that the workman was frequently advised and cautioned with regard to his faithfully complying with traffic rules and regulations as also to drive and maintain the vehicle with due care and diligence. Although the workman concerned was not served with a chargesheet and or a complaint in writing in this regard particularly as it is not the culture of the Company to issue memos, chargesheets and such other letters...... As set out here in above the workman was in the habit of frequently remaining absent from his duties without prior permission, sanction and/or authorisation of the management besides indulging in other acts of misconduct.......... The fact is that the workman on Sunday, 2nd February 1997 while going to the Malviya Nagar market slipped on a banana peel lying on the road...... Thereafter, due to such injury, the workman concerned continued to regularly remain absent and unwell. He suffered from severe pain in his back....... Thereafter, the workman, admittedly employed in the services of the Company as a Driver, was unable to discharge and/or perform his duties.
Hence, without performing his duties on any date after March 1997, he was regularly paid the salary of a Driver upto January 1998....... It is denied that any fraud was committed by the management as alleged, to get rid of the workman. It is not the case of the management that they Company suffered huge losses. On the contrary, the case of the management is that the Company does not have any vehicle to entrust to Mr. Udai Singh Rana to drive on behalf of the Company.
In the absence of any vehicle, it is not possible to avail the services of the workman as such he was surplus to the Company and was retrenched from the services of the Company w.e.f.
09/02/1998...... Furthermore, even the terms of employment dated 24/04/1997 clearly states that the services of the workman as a Driver were in respect of the Delhi Branch of the Company. As the management does not have any other establishment in Delhi and furthermore that the management does not have any requirement for a driver hence the question of employment of Mr. Udai Singh Rana cannot and does not arise".
34. The present case is quite peculiar as it is not only the management but also the workman who have kept changing their case according to suitability for the purpose of jurisdiction. Ld. AR for workman has stated in his arguments that keeping in view the illness of the workman, termination so made is not retrenchment and as per clause 2 (oo) (c) and as such also it would come within the purview of the labour court under Second Schedule to adjudicate upon the present reference. But on merits, the workman asks this court to lift the veil and to find out the real underlying reason for the termination of service of the workman then it is certainly not continued ill health according to him.
35. As already stated above, as per the workman, the removal from service is absolutely arbitrary and highhanded with a view to get rid of the workman anyhow. As per the workman, termination made in the disguise of retrenchment is virtually an order discharging or dismissing the service of the workman and which in fact is based on malafide considerations being arbitrary and unnecessarily harsh on the part of the management leading to victimization of workman by resorting to a measure which is an act of unfair labour practice. While management has chosen not to put the case of the workman in clause (c) of 2 (oo) but it has chosen to put forward the case of workman having become surplus on account of there being no car in the company.
36. Since both the parties in this case have peculiarly waivered in their stand from one thing to another, it is only the evidence that has come on record which can clear up the confused state of submissions of both sides.
37. First and foremost the letter from the management terminating his service Ex. WW1/M15 dated 02/02/98 is being reproduced hereunder for easy reference:
"..........
February 2nd, 1998 Mr. Uday Singh Rana Driver Dear Mr. Rana, You have been employed as a Driver in our Delhi branch, with effect from 29th April 1987. As you are aware, there are only two drivers in the service of our Establishment and you being the junior most, hence it has been decided to retrench you from the services of our Company with effect from the afternoon of 9th February 1998, on payment of one month's salary in lieu of Notice, for the reason that we do not have any vehicle to entrust to you to drive on behalf of the Company.
Accordingly, on your retrenchment, you will be eligible for the following dues:
i) One month's Salary Rs. 5,010.00
ii) Salary upto 9.2.98 Rs. 1,610.00
ii) Medical Reimbursement 1.4.97 to 9.2.98 Rs. 2,983.00 Rs. 9,603.00 Less :
Excess LTA claimed 10.2.98 to 31.3.98 Rs. 414.00 Advances Rs. 35,000.00 Rs. 35,414.00 Net recoverable by Company Rs. (25,811.00) Besides the above, you will be eligible for an amount of Rs. 17,315.00 towards gratuity and Rs. 27,555.00 towards retrenchment compensation. You will also be paid your Provident Fund dues, for which you shall have to make a formal application to the Trustees, FCB Ulka Advertising Ltd. Staff Provident Fund, Mumbai.
Should there be any discrepancy in calculation of your dies, you may kind revert to the undersigned. Accordingly, you are advised to visit our Accounts department on any working day, during working hours and settle your dues in full and final.
As regards Service Certificate, in respect of your employment, you may make a written request on that behalf.
With our best wishes for your future career and endeavours.
Yours sincerely Sd/ Arvind Wable Executive Director"
38. The words "for the reason that we do not have any vehicle to entrust to you to drive on behalf of the company" clearly implies that management was of the view that workman would not be able to drive any car and it will not be wise to entrust any car/vehicle to the workman and which is why he was being retrenched from service. The above mentioned words do not reflect that it is because there was no vehicle available with the management that workman had been rendered surplus. It is only that out of all the vehicles of the management, management was not feeling comfortable to entrust any vehicle to the workman. Otherwise, the use of the words that "to entrust to you to drive" would have been absolutely redundant/surplus as had it actually been a case that there was no car available with the company. This very information would have sufficed without using the words 'any vehicle to entrust to you to drive'. Even otherwise, the background of the case is showing that workman met with an accident and suffered various multiple injuries coupled along with fact that management was not satisfied with his working. Otherwise also, it was clearly a case of removal/dismissal on account of misconduct as described in the W/s also by the management itself like unauthorized absence, careless driving of the car etc.
39. It is a settled legal position that termination of service is not only to be legal i.e in accordance with the provisions of law but it also has to be justified i.e based on some sufficient reason. The use of the words that 'for whatsoever reasons' succeeding the words termination by the employer of service of a workman in clause (oo) of section 2 I.D. Act does not and cannot imply that service of workman can be terminated simply on whims and fancies of the management. Any reason whatsoever would mean any reasonable cause.
40. In case of misconduct either an enquiry was to be held or misconduct was to be established. In case of retrenchment on account of workman becoming surplus it has to be established that there was no car in the company or that there was no other place suitable where workman could be suitably absorbed. In other words, termination is not only to be legal but also justified. As regards the reason given on the face of it that management has no vehicle to be driven on behalf of the company is itself quite an incredible statement inasmuch as management company is admittedly a large multinational company and for the management to come out with a plea like the one they have done in this case that the company is not having any car would be nothing short of being ridiculous.
41. Interestingly, when a query was put by court to Ld. AR for management about the fate of the car which the workman used to drive as to whether it was sold away and to the documents of sale etc., the reply of Ld. AR for management goes a long way to bring out the real state of things prevailing in the management with regard to its drivers. Reply of Ld. AR for management was that the said car is now in the name of Manager concerned and, that this company has transferred all its cars in the name of the Managers or other staff individually so as to be free from all liabilities visa vis the drivers. This fact has not found place in the written submissions filed on behalf of the management. This then clearly brings out the fact that management adopted these under hand tactics to get rid of their employees.
42. Out of all the documents tendered in evidence by the management, none of them relates to the reason by the management for 'retrenchment'. No single document shows the number of cars available with the company previously and their sales record and the number of cars presently available with the company. It has not even been explained anywhere as to how the work of the management used to be carried out if they had no conveyance/vehicle which otherwise also is quite an unbelievable statement in view of the fact that M/s Ulka Advertising Ltd. happens to be a one of the top most multinational advertising companies.
43. Most of the documents of the management only relate to the appointment, confirmation of the workman and some warnings issued to the workman, his leave record etc. besides the letters showing that workman was granted regular increments, medical record of the workman showing some medical expenses to have been borne by the company, besides the salary account.
44. Coming to the affidavit of management witness, once again he also laments about unsatisfactory performance of duties by the workman and then about the accident and some amounts having been spent by the management on the treatment of the workman. It contains detailed description of the visits to different hospitals and doctors.
45. Management has made much of the medical expenses incurred by it as being a humanitarian gesture completely ignoring that any management is otherwise also bound to take care of its employee for his medical ailments under different schemes like ESI etc. It is not a favour if the management incurred these expenses and for that too admittedly management was pursuing the claim on behalf of workman with New India Insurance Company Ltd. so as to be reimbursed. It is a different thing that for want of documents, the file with the Insurance Company was closed. It is not still clear as to how the management is relating the accident and the injuries of the workman to his 'retrenchment'. The relevant portions of cross examination of MW1 on the point of retrenchment are being reproduced hereunder for easy reference: "It is correct that the services of the workman were retrenched. He was working as a Driver. He was not offered any alternative employment. Although the workman was not served a charge sheet while in our employment but was issued various warning letters from time to time while in our services. Some of which have been filed in this court. It is correct that workman was given due routine increment which lead to increase in his salary from time to time....... It is wrong to suggest that the company has any car except one car with Mr. Arvind Wable, the Executive Director it was provided to him much before the services of the Driver were retrenched by the company. It is correct that the workman has not received the money sent to him on his being retrenched from our services".
46. The affidavit as well as the cross examination of MW1 are silent on the aspect of nonavailability of any car for the company except one and as already above stated, this bald statement by itself being unbelievable and unconvincing. There was no other evidence brought in support of it justifying the situation where company was left with only one car. It has been admitted throughout that there was no dearth of work in the company and in fact company was making huge profits and this fact has even been stated in the W/s of the management then what was the special reason for the company which led to having only one card.
47. However, cross examination of the workman reveals altogether a new story with which neither management had brought nor the workman had even whispered anywhere in his pleadings. The relevant portion is being reproduced hereunder: "After the accident on 12/03/97 I was taken back home. After that I stayed at home for about 4/5 days. After I resumed my duties having taken leave, I could not perform duties due to severe back pain. It is correct that thereafter I could not drive the car. In fact the pain so much that it was difficult for me to even visit the toilet......... I cannot even today drive a car because of my back/spinal injury. I still suffered from severe and acute pain...... It is correct that after my operation in March 1997 the Doctor had advised me not to drive any car or any other vehicle or to undergo any heavy exertion....... It is correct that the only other driver in the company except me is Uday Singh. It is correct that Mr. Uday Singh is senior tome. He joined the services of the company before me. He was then attached to Mr. Arvind Wable, Executive Director of the Company. I do not know whether the company has any other vehicle other than that of Mr. Arvind Wable".
48. Besides, workman has also admitted throughout his cross examination that he used to remain absent form his duties for several days due to accident etc. He has also admitted that management incurred all expenses on medical treatment to the tune of Rs. 35,000/.
49. In view of such like pleadings and evidence on both sides, the only conclusion that can be drawn is that the truth of the matter was that workman was no doubt unable to drive any more and for this reason management was not able to entrust any car to him
50. Reliance was placed by Ld. AR for workman on the judgment of Hon'ble Supreme Court in the case of Anand Bihar Vs. Rajasthan State Road Corporation (1991) 1 SCC 731 wherein it was held that the termination of the service of such drivers was on account of "continued illhealth" as contemplated by Sub Clause (c) of Section 2(oo) of the Act and was therefore not "retrenchment". Hon'ble Supreme Court held that termination was nut justified as it was discriminatory visavis other employees. In view of the fact that the workmen had put in long number of years and most of them were above 40 years of age, the Court proposed a scheme of compensatory relief for such workmen suitable to the peculiar loss that they had suffered on account of premature retirement necessitated by their unfitness to work as drivers. (AIR 1991 S.C. 1003)
51. Ramashwar Das & Ors Vs. State of Haryana & Ors.; (1995) 3 SCC 285 - held - such workman developing defective or sub normal eye sight during course of employment or suffering serious injuries during course of employment which incapacitating them from their duties such drivers in addition to giving such workman retirement benefits offer them alternative jobs and only when that is not possible at all in the existing circumstances then they shall be paid along with retirement benefits additional compensation.
52. It has been contended by the Ld. AR for workman that in the present case management has erred in law by terminating the services in disguise of retrenchment so as to avoid making due adjustment and payments. It is also contended on behalf of workman that termination so made is wrong and illegal on the face of it owing to which workman has not accepted any dues till date. He refers to the power of Industrial Adjudicator to go behind the form of the order, look up the substance and set aside the termination order so passed, which has been made with malafide considerations and ulterior motives, as a colourable exercise of power by the management. The form of the order, in the language in which it is couched, is not conclusive and this court can lift the veil to see the true nature of the order as held by the Supreme Court in the case of Gujarat Steel Tubes Ltd. Vs. Gujarat Steels Tubes Mazdoor Sabha; (1980) 1 LLJ 137 and L. Michael Vs. Johnson Pumps Ltd.; (1975)1 LLJ 262 (AIR 1980 SC 1896 & AIR 1975 SC 661).
53. It is further the contention of Ld. AR for workman that although management has contended that termination so made has no nexus to the alleged injury although it is a matter of fact that the workman got injured while being on duty on 12/03/97 only due to this fact the management has taken steps to mitigate the suffering of the workman as a part of its duty but later on it started harassing and victimizing the workman by torturing and compelling him to resign from service which the workman refused to do as such the management planned to terminate the services by way of retrenchment thereby depriving him of service as well as other benefits to which workman is legally entitled to receive. In the given facts and circumstance of the case the principle of last come and first go as in case of retrenchment has no application since termination so made is not retrenchment at all.
54. It is also an admitted fact that workman has been given appreciation letters as well as due increment in salary in recognition of his services, and management witness, also admitted in his cross examination, that workman was not offered any alternative employment and also it was admitted that workman has not received the money as sent to him. In letter dated 12/02/98 Ex. MW1/W1 workman has stated very clearly that the management started to harass, humiliate and torturing him through Sh. Ravish Mehra, Accounts Manager and Manish Krishnan, Administrative Officer so that the workman either resigns or leaves the job voluntarily.
55. Ld. AR for workman has relied on Persons with disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1955 which provides that no establishment shall dispense with or reduce in rank, an employee who acquires a disability during his service which provides that if an employee after acquiring disability is not suitable for the post it was holding, could be shifted to some other post with the same pay scale and service benefits. However, reliance of Ld. AR for workman on this Act is quite misplaced as the same would not apply to private companies as the Act is applicable only to Government Departments and Corporations under some Central or State statutes.
56. As regards the contention of Ld. AR for management that termination of service of workman was in exercise of clause 8 of the appointment letter Ex. WW1/1; it came up for consideration before Hon'ble Supreme Court in Assam Oil Co. Ltd. Vs. Workman; AIR 1960 SC 1264 as to whether or not the termination of service in a given case is the result of the bonafide exercise of the power conferred on the employer by the contract or whether in substance it is a punishment for alleged misconduct, would always depend upon the facts and circumstances of each case. It was further observed that it is important to remember that just as the employer's right to exercise this option in terms of the contract has to be recognised, so is the employees' right to expect security of tenure to be taken into account. It cannot, therefore, be accepted that whenever the employer purports to terminate the services of his employee by virtue of the power conferred on him by the terms of contract, industrial tribunals cannot question its validity, propriety or legality. In that particular case on facts it was found that management had passed the order of discharge on the basis of the workman being guilty of misconduct, as such, order was punitive in nature and that the Tribunal was, therefore, right in holding that the employer was not justified in discharging the workman without holding proper enquiry.
57. In the present case allegations of unauthorized absence have throughout been levelled in the entire W/s against the workman and throughout it has been expressed that management was not satisfied with his performance and as such termination was a result of the unauthorized absence of the workman and alleged careless driving vehicle etc. and as such the case called for an enquiry to be held prior to terminating his service and not for termination of his service taking advantage of the clause of contract.
58. In case, however if termination of service of workman is taken to be actually on his continued illhealth on account of the accident, same would be covered under section 2 (oo) (c) I.D. Act and same would not amount to retrenchment. This came up for consideration before Hon'ble High Court in Anand Bihari & Others Vs. Rajasthan State Road Transport Corporation, Jaiput and Another etc. reported in AIR 1991 SC 1003. In that case services of the drivers working in the State Transport Corporation were terminated on the ground that they have developed eyesight which was not of standard required to drive the buses, such termination would be covered by sub clause
(c) of S.2 (oo) and thus would not amount to retrenchment within the meaning of Section 2 (oo) and it was further held in para 6 of the judgment that any disorder in health which incapacitates an individual from discharging the duties entrusted to him or affects his work adversely or comes in the way of his normal and effective functioning can be covered by the said phrase "ill health". The phrase has also to be construed from the point of view of the consumers of the concerned products and services. If on account of a workman's disease or incapacity or debility in functioning, the resultant product or the service is likely to be affected in any way or to become a risk to the health, life or property of the consumer, the disease or incapacity has to be categorised as ill health for the purpose of the said sub clause.... Hence, a realistic and not a technical or pedantic meaning has to be placed on the said phrase. Therefore, the said phrase would include cases of drivers of the buses who have developed a defective or subnormal vision or eyesight which was bound to interfere with their normal working as driver. It was further held that service conditions of such workmen should provide for compensatory relief such as alternative employment etc.
59. Coming to the third category of termination which is the one stated by management that company was not having any car for the workman to drive, as already above stated there is no such evidence on record to establish, no such material on record apart from the fact that such a statement on the face of it is also incredible in view of the status of the company which is multinational and a leading advertising company.
60. Another case where the discharge of the workman was held not to be simplicitor but punitive in nature, it was again held that the form of the order of termination or the language in which it is couched is not conclusive and that court is to lift the veil to see true nature of the order. If two factors co exist, an inference of punishment is reasonable though not inevitable; If the severance of service is effected the first condition is fulfilled and if the foundation or causa causans of such severance is the servant's misconduct the second is fulfilled......... The court will find out from other proceedings or document connected with the formal order of termination, what the true ground for the termination is.
61. On the other hand, reliance of Ld. AR for management in his submissions as well as written submissions on U.B. Gadhey & Ors etc. Vs. G.M. Gujarat Ambuja Cement Pvt. Ltd.; 2007 LLR 1178, is not only misplaced but in fact absolutely contrary to the case set up by the management itself and in fact it strengthens the opinion that the reality behind the termination order was neither the fact that company was not having any car or only one car nor the fact that they made use of the clause of the contract or it was a termination simplicitor. The very arguments cited in para 5 of the written submissions of Ld. AR for management would establish that management itself was treating the order of termination as some kind of punishment. Otherwise, to cite the case law above referred would have been of no relevance as the said judgment deals with the aspect of the power of Labour Court/Industrial Tribunal U/s 11A for modification in punishment.
62. Reliance of Ld. AR for management on D.T.C. Vs. Industrial Tribunal, Delhi and Another; AIR Supreme Court page 1503, is once again highly misplaced as the said judgment is also on misconduct and punishment.
63. Further judgments relied on by Ld. AR for management i.e Ramesh Hydromachs, Belgaum Vs. Labour Court, Hubli, and Another; LLN 1985 Karnataka High Court page 940, Ram Garib & Others Vs. P.O. Labour Court, Varanasi & Others; 2003 LLR 214 & Narayan Poojari Vs. The Labour Court; 2002 LLR 1213, are on the point of retrenchment and as already stated above, present case is not falling within the definition of retrenchment at all. As such, the said judgments are also not applicable to the facts of this case.
64. In J.B. Kumar Vs. M/s Brijesh Sethi & Anr.; 2007 LLR 399 Delhi High Court, relied upon by Ld. AR for management himself, no doubt, as already observed, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 will have no application to private establishments and in this regard reliance of Ld. AR for management on the above judgment is found to be correct.
65. However, coming back, once again to the peculiar facts of the given case where it is clear that management has no fixed line of defence and has put forth different kind of defences throughout the proceedings of the case and the defence on the face of it that, there was no car available for the workman for driving, the present case cannot be termed a case of termination on ground of illhealth and taking their own defence, it was for the management to have established that they really had no work for the workman. To establish this fact, management has not brought even a single piece of evidence, and which was very necessary, particularly in view of the fact, that of a large multinational company, one of the leading advertising companies to say that they have no car except one car, would be absolutely incredible even on the face of it for any reasonable minded person to believe the same. In the absence of any evidence to this aspect, management has clearly failed to establish that termination of service of the workman was justified.
66. Termination of service in order to be valid has to be not only legal in as much as all the procedures laid down under the law are followed but further it has to be justified as well. Management may have offered 'retrenchment compensation' to the workman and followed the procedures; all the same, management has failed to establish the bonafide of the termination order and the justification behind retrenchment.
67. As regards relief, in view of the long time span spent since termination, it will be more appropriate to award compensation in lieu of reinstatement/direction for the workman to be absorbed in lighter duty.
68. 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 too.
69. Accordingly, I award a compensation to the tune of Rs. 4,12,800/ to the workman along with interest @ 18% per annum from the date of filing claim till realisation, besides litigation cost of 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 31/05/2008 (SUJATA KOHLI) Addl. District & Sessions Judge Presiding Officer Labour CourtII, Karkardooma Courts, Delhi.