Delhi District Court
Between The vs The on 16 March, 2020
IN THE COURT OF SH. RAMESH KUMARII, PRESIDING OFFICER
LABOUR COURT, ROUSE AVENUE DISTRICT COURT, D.D.U. MARG,
NEW DELHI
LID 131/2016
Date of institution 30.05.2013
Date of transfer of present case to this court 22.05.2019
Date of Award 16.03.2020
BETWEEN THE WORKMAN
Sh. Netraram Kaushik S/o Sh. Ram Singh Kaushik, R/o House No. 594, Gali
No. 6, Preet Vihar, Balaur Road, Arya Nagar, Bahadurgarh, Haryana,
through Delhi Pradesh Kamgar Ekta Sangh (Regd.), Plot No.1, Gali No.2,
Dabri Gaon, New Delhi110045.
AND
THE MANAGEMENT OF
M/s RCI Logestics Pvt. Ltd., 23, TPT Centre, Punjabi Bagh, New Delhi
110035.
AWARD
1 By this award, I shall dispose of the statement of claim of the workman as
filed by him directly before labour court against the management under section 10
(4) (A) of the Industrial Disputes Act, 1947.
2 Brief facts as stated by the workman in his statement of claim are that he
had been working with aforesaid management continuously at the post of
Fieldwork since 01.01.2011 and his last drawn salary was Rs.18,000/ per month.
He had never afforded any chance of any complaint to the management during his
service tenure, but despite that the management had not been providing him
various legal facilities under Labour Laws like appointment letter, attendance
card, leaves, pay slip, leave book, ESI, bonus and overtime wages etc. which were
LID No. 131/2016 1
being demanded by him from time to time, due to which the management got
annoyed and ultimately, terminated his services on 17.05.2012 illegally, without
prior information and without paying his earned wages for the period from April
2012 till 16.05.2012. It is further stated that thereafter, the workman lodged a
complaint against the management before Labour Department, Karmapura, Delhi,
upon which the Labour Inspector visited the establishment of the management
and also called the management in his office with their records but the
management neither appeared before him nor produced any record nor took the
workman back on duty or paid his due wages. It is further stated that the workman
also sent a demand notice to the management on 10.12.2012 through speed post
thereby calling upon the management to reinstate him in service and also to pay
his earned wages but the management did not give any reply to the said demand
notice nor reinstated the workman nor paid his earned wages. It is further stated
that the workman also filed an industrial dispute against the management before
the Labour Conciliation Officer, but the management did not appear during the
conciliation proceedings, due to which conciliation failed. It is further stated that
the services of the workman were terminated by the management without issuing
charge sheet and without conducting domestic enquiry which is violation of the
provisions of section 25 F, 25 G and 25 H of the Industrial Disputes Act. It is
further stated that the workman is unemployed since the date of termination of his
services, therefore, he has made prayer that the management be directed to
reinstate him at the same post with full back wages including benefits of
continuity of service and all other consequential benefits.
3 The management has contested the present case and filed its written
statement thereby taking preliminary objections therein that the claimant herein is
not a 'workman' as defined under the Industrial Disputes Acts 1947 and therefore,
LID No. 131/2016 2
he cannot approach this court seeking redressal of his grievances, if at all as the
law in this regard is well settled that only a person who, on the basis of the
functions discharged by him, qualifies as a 'workman' as defined under the said
Act can approach the machinery established under the provisions of the said Act.
It is further stated that the claimant was appointed by the management as Manager
Marketing and was posted at the office of the management at Vapi in Gujarat as
Station Incharge, where he was heading the operations of the management and
there were 4 employees working under him. It is further stated that the claimant
was performing totally managerial and supervisory functions at Vapi and
therefore, he does not qualify to be categorized as 'workman' as envisaged under
the said Act, therefore, his claim cannot be entertained by this court and thus
deserves to be dismissed on this ground itself. It is further stated that the claimant
has filed a false case inasmuch as he is voluntarily absenting from his duty w.e.f.
16.05.2012 and his services have never been terminated by the management. It is
further stated that the claimant misused the trust and confidence placed in him by
the management while appointing him as Station Incharge of Vapi and he
misappropriated funds of the management. It is further stated that the claimant has
been unauthorizedly absenting from his duty w.e.f. 16.05.2012 after coming
serious financial irregularities while discharging his official duties with the
respondent in their Vapi office where he was posted as Marketing
Manager/Station Incharge after his appointment with the management. It is further stated that when the financial irregularities committed by the claimant were exposed, he was transferred from Vapi office of the respondent to Delhi office in the month of April 2012 where he was asked to explain his acts of financial bungling and to account for the money misappropriated by him. It is further stated that the claimant admitted his faults and promised to refund/account LID No. 131/2016 3 for the money misappropriated by him, however, instead of accounting for the funds illegally misappropriated by him, he became irregular in his work and subsequently altogether stopped attending the office w.e.f. 16.05.2012 and he also misbehaved with Sh. Dilip Kumar Rout an officer of the management, who was seeking explanation from him in respect of his financial bungling and threatened him with dire consequences and as a result of this, the management lodged a complaint with the local police in this respect. It is further stated that the claimant was called upon to report for duty telephonicially as well as by writing letters dated 25.05.2012, 04.06.2012 and 12.06.2012 but he refused to receive these letters which were subsequently sent to his residence through personal delivery. However, not only the claimant refused to acknowledge the receipt of the letters after reading their contents, but he also failed to comply with lawful directions of his superiors and did not report for duty. It is further stated that the claimant has never been terminated and he is at liberty to join his duty if he so desires. As far as merits are concerned, all the averments of the statement of claim are denied word by word and ultimately it is prayed that the statement of claim of the workman be dismissed against the management.
4 The workman thereafter filed rejoinder wherein all the contents of the written statement were denied and the facts of the statement of claim were reiterated and reaffirmed as correct and it is prayed that an award be passed in favour of the workman in terms of prayer made by him in statement of claim. 5 After the completion of the pleadings of the parties, following issues were framed by Ld. Predecessor of this court vide order dated 11.09.2013: 1 Whether the claimant is a workman as defined under the I.D. Act, 1947? OPW/OPM 2 Whether the services of the workman were illegally LID No. 131/2016 4 and/or unjustifiably terminated by the management on 17.05.2013, if so what directions are necessary to be passed in this regard? OPW 3 Whether the claimant voluntarily absented himself from duty w.e.f. 16.05.2012? OPM 4 Relief.
6 After framing of the issues, matter was fixed for workman's evidence. The workman examined himself as WW1 in support of his case and relied his evidence on documents i.e. copy of complaint filed before Asstt. Labour Commissioner is Ex.WW1/1; report of Labour Inspector dated 05.12.2012 is Ex.WW1/2; copy of demand notice dated 10.12.2012 is Ex.WW1/4, its postal receipt is Ex.WW1/4; copy of statement of claim filed before Conciliation Officer is Ex.WW1/5. In support of his case the workman has also examined one Mr. Avtar Singh, the then Labour Inspector as WW2 who has testified that complaint already Ex.WW1/1 was marked to him and pursuant thereto he furnished his report Ex.WW1/2 to Mr. Net Ram Kaushik i.e. the workman and the said report bears his signatures at points A and same is correct and true. The workman did not examine any other witness and he closed his evidence on 01.03.2016. Thereafter, opportunity was granted to the management to lead its evidence. Accordingly, the management examined four witnesses i.e. Sh. Jitesh Kumar, Accounts Executive as MW1; Sh. Monu Bharadwaj, Cashier as MW2; Sh. Shailendra Routray, Head Cashier as MW3 and Sh. Shashank Shekhar Singh, Manager Operations as MW4. The management has relied its evidence on documents i.e. letter dated 25.05.2012 which was tendered to the workman at his residence is Ex.MW1/1; vouchers for a sum of Rs.2000/ dated 15.05.2012 is Ex.MW3/1; copy of cash book for 15.05.2012 is Ex.MW3/2 (also WW1/M12x, LID No. 131/2016 5 subject to production of its original); voucher (undated) for a sum of Rs.10000/ is Ex.MW3/3 and copy of cash book for 18.05.2012 is Ex.MW3/4 (also Mark WW1/M11x, subject to production on its original); copy of general power of attorney is Ex.MW4/1; copy of board resolution is Ex.MW4/2; documents relating to extra payment collected by him/MW4 for hiring of trucks in para no.5 of affidavit are Ex.MW4/3; police compliant dated 15.05.2012 is Ex.MW4/4; letters dated 25.05.2012, 04.06.2012 and 12.06.2012 are already Ex.MW1/1; Mark C and Mark D respectively; couriers receipts of letters dated 25.05.2012, 04.06.2012 and 12.06.2012 are Ex.MW4/6 and Ex.MW4/7 (colly. 3 envelops) are the envelops of letters dated 25.05.2012, 04.06.2012 and 12.06.2012 are Ex.MW4/7. (Documents Ex.MW4/3, Ex.MW4/4, Ex.MW4/6 and Ex.MW4/7 were objected to by Ld.AR for workman). It is a matter of record that MW2 Sh. Monu Bharadwaj and MW3 Sh. Shailendra Routray did not appear for their cross examination and MW4 Sh. Shashank Shekhar did not conclude his examination in chief, despite giving various opportunities and ultimately, ME was closed by Ld. Predecessor of this court vide order dated 13.10.2017. Thereafter, matter was fixed for final arguments.
7 Ld.AR for workman filed written arguments on behalf of the workman thereby reiterating his same arguments as mentioned therein. 8 During the course of arguments, Ld.AR for management argued and submitted that the management placed on record appointment letter of the claimant which is Ex.WW1/M2X in which it is specifically mentioned that he was appointed at the post of Marketing Manager and as such he is not a 'workman' within the definition of Section 2 (s) of the Industrial Disputes Act as he was performing his duties in managerial capacity. Ld.AR for management further submitted that the claimant used to put his signature on vouchers as Manager LID No. 131/2016 6 which are Ex.WW1/M3x, Ex.WW1/M4x and Ex.WW1/M5x which prove that he was discharging his duties in managerial capacity. Ld. AR for management further submitted that the claimant had filed a case against the management before Authority under Shops & Establishment Act which has been dismissed by the said Authority, hence the present claim is not maintainable before this court. Ld.AR for management further submitted that the claimant cheated the management against which the management got lodged a police complaint against him which is Ex.MW4/4 and after the said incident the workman did not join his duties and remained absent from the duty. Ld.AR for management further submitted that the management sent various letters to the claimant which are Ex.MW1/1, Mark C and Mark D thereby calling his explanation and also to join his duties but he did not do so, hence he is not entitled to any relief against the management. Therefore, on these grounds, Ld.AR for management has prayed that the claimant is not entitled to any relief against the management and his claim may kindly be dismissed.
9 I have perused the written arguments filed by Ld.AR for workman. I have also perused the record. On perusal of record, my issuewise findings are as follows: ISSUE NO.1 10 The onus to prove this issue has been conferred by Ld. Predecessor of this court on both the parties. As per the averments of the claimant, he was working with the management at the post of Fieldwork. On the other hand the defence of the management is that the claimant is not covered under the definition of 'workman' as defined u/s 2 (s) of the Industrial Disputes Act 1947 as he was employed by the management at the post of Manager Marketing. 11 Coming now to the evidence part. The workman was cross examined by LID No. 131/2016 7 Ld.AR for management and in his cross examination, he deposed that he joined the management of M/s Confidence Carriers & Logistics Pvt. Ltd. on 07.07.2013 and at the time of his joining on 07.07.2013 no specific post/designation was given to him but he was used to be sent in the field. On court query this witness clarified that he was sent in the field to look after the transport vehicles of the management and to receive the payments and to bring business for the management. He further deposed that he did not remember the date on which designation of Branch Manager was given to him but he volunteered that when he had brought business of 3/4 companies to the management, visiting card Ex.WW1/M1X was provided to him by the management. He further admitted that as and when he visited the other companies, he used to disclose his identity as Branch Manager of M/s Confidence Carriers & Logistics Pvt. Ltd. and also utilize the visiting card Ex.WW1/M1x. He further deposed that he used to get gross salary of Rs.25,000/ per month. He further deposed that he joined the management of M/s RCI Logistics Pvt. Ltd. on 02.01.2011 as Field Worker but he volunteered that no appointment letter was given to him. He further denied the suggestion that he joined the management of M/s RCI Logistics Pvt. Ltd. on 02.01.2011 as Marketing Manager. He further deposed that management had not issued him letter of appointment Mark WW1/M2x or that he is deposing falsely regarding Mark WW1/M2x. He further denied the suggestion that he worked at Vapi as a Station Incharge but he volunteered that he was sent there to do the field work i.e. collection of old payments, acknowledgement for delivery of goods, etc. During his further cross examination Ld.AR for management put another question to WW1 and he was asked to tell as to whether there was post of Station Incharge at Vapi or not, to which he replied that there was post with the designation of Station Incharge and Mr. Shanti Lal Pandey was working as Station Incharge at LID No. 131/2016 8 Vapi and when he reached at Vapi in August 2011 Mr. Shanti Lal Pandey was working as Wholesale Manager/Station Incharge and he worked there in that capacity till November/December 2011. Thereafter, Ld. Predecessor of this court put a question to WW1 and he was asked to tell as to whether who was Station Incharge at Vapi after November/December 2011 till 2012, to which he replied that there was no person working as Station Incharge during above said period but his work was as Field Work and he used to receive instructions from Delhi, Chennai and Hyderabad office. He further admitted that during his employment with the management he used to sign the vouchers at the time of receiving of salary. During his further cross examination Ld.AR for management put another question to WW1 and he was asked to tell as to whether vouchers Ex.WW1/M3x, Ex.WW1/M4x and Ex.WW1/M5x bear his signatures at points A as recipient of the salary and at points B as Manager, to which he admitted that signatures at points A and B are his signatures, however he signed at points B by mistake as he was not working as Manager. He further denied the suggestion that he has signed at the place of manager because as a matter of fact he was working as Manager as Vapi. During his further cross examination Ld.AR for management put another question to WW1 that while working at Vapi he was communicating with the offices of management at Delhi and Hyderabad via emails, to which he replied that he was not sending emails as suggested and emails used to be sent by Mr. Omji Tiwari/Pandey who was working on computers. He further denied the suggestion that emails from the management used to be addressed to him and he used to reply the same under his own name as sender Mr. Net Ram Kaushik. He further admitted that he had sent emails Ex.WW1/M6x, Ex.WW1/M7x, Ex.WW1/M8x and Ex.WW1/M9x. He further admitted that when he was working at Vapi, apart from him persons namely Sh/S. S.K. Pandey (Branch Manager LID No. 131/2016 9 getting Rs.18000/ p.m.), Sanjay Tiwari (Accountant cum Cashier getting Rs.6000/ p.m.), Hari Om Sharma (Traffic Incharge getting Rs.7000/ p.m.) Om Shankar Shukla (Supervisor getting Rs.5500/ p.m.) and Sanjay Mahabali (Supervisor getting Rs.5000/ p.m.) were also working with him. He further admitted that his salary was Rs.18000/ p.m. but he denied the suggestion that he was working as Regional Manager at Vapi. He further denied the suggestion that he was Incharge at Vapi and controlling the work of the persons named above. 12 MW2 Sh. Monu Bharadwaj in his cross examination deposed that he is not carrying any documentary proof to show that the workman herein was working as Incharge of office of the management at Vapi. He further deposed that he is not carrying any documentary proof to show that everyone else employed at Vapi office was reporting to the workman.
FINDINGS 13 The definition of a 'workman' is defined under section 2 (s) of the Industrial Disputes Act, 1947 Act which reads as under: "Workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be expressed or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person i who is subject to Air Force, 1950 (45 of 1950), or the Army Act, 1950(46 of 1950), or the Navy Act,1957 (62 of 1957); or ii who is employed in the police service or as an officer or other employee of a prison; or iii who is employed mainly in a managerial or administrative capacity; or iv who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a LID No. 131/2016 10 managerial nature."
14 The Hon'ble Apex Court has held in catena of judgments that in such cases what has to be looked by the courts is the nature of duties/work assigned to the claimant and not the mere designation. The court has to see whether the claimant was employed in a supervisory capacity or that his duties, powers and functions were mainly of managerial or supervisory in nature.
15 In the judgment titled as Anand Bajar Patrika (Pvt) Ltd. Vs. The Workmen, 1970 (3) SCC 248, it was inter alia held that: "the question, whether a person is employed in a supervisory capacity or on clerical work depends upon whether the main and principal duties carried out by him are those of a supervisory character, or of a nature carried out by a clerk."
16 Simultaneously in the judgment titled S.K. Maini Vs. Carona Sahu Co.Ltd. & Ors., 1994: Supreme Court Cases (L&S): Page 776, it was inter alia held that: "Industrial Dispute Act.1947 - Section 2 (s) "Workman is an employee who is doing more than one duty and functions, whether or not, a workman and the test is the nature of duties and not the designation."
17 Further, in the judgment titled as Yogender Kumar Vs. B.R. Kohli & Co., 106 (2003) DLT 232, it was inter alia held by the Hon'ble High Court of Delhi that: "Whether or not an employee is a workman under section 2 (s) of the I.D. Act is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and material on record and it is not possible to lay down any straitjacket formula which can decide the dispute as to the real nature of duties and functions performed by an employee in all cases. When an employee is required to do more than on kind of work it becomes necessary to determine under which classification under section 2 (s) the employee will fall for the purpose of deciding whether he LID No. 131/2016 11 comes within the definition of workman or goes out of it. The designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the employee concerned and not some works incidentally done. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory work. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of 'workmen' as defined in section 2 (s) of the I.D. Act."
18 In support of its contention the management has relied upon appointment letter Mark WW1/M2X wherein the designation of the claimant is mentioned as Marketing Manager. The claimant denied that he was issued such appointment letter. However, a perusal of appointment letter Mark WW1/M2X reveals that the nature of duties of the claimant has not been defined therein and only his designation is mentioned as Marketing Manager. The management has not filed any document on record to prove that the management has given powers to the claimant to supervise its employees. The management has also not filed any document on record to prove as to how many employees were working under the claimant. The management has also not proved on record that the management had given any managerial powers to the claimant during the course of his employment. The management has also not produced any documentary proof to prove that the claimant was working as Incharge of office of the management at Vapi. The management has also not produced any documentary proof to prove that everyone else employed at Vapi office was reporting to the claimant. Further, LID No. 131/2016 12 MW2 Sh. Monu Bharadwaj, MW3 Sh. Shailendra Routray and MW4 Sh. Shashank Shekhar, who according to the management were working under the claimant, did not appear in witness box for their cross examination. Therefore, this court is of the opinion that a mere designation or communication via emails is not sufficient to keep the claimant out from the purview of section 2 (s) of the Industrial Disputes Act. Accordingly, keeping in view all these facts, it is clear that the claimant was not discharging his duties in managerial or supervisory capacity and as such it is held that the claimant is squarely covered within the definition of section 2 (s) of the Industrial Disputes Act, 1947. Issue no.1 is decided in favour of the workman and against the management.
ISSUE NO.2 & 319 Both these issues are interrelated as the finding of one issue has a direct bearing on the other issue and as such both these issues are being taken up together. The onus to prove issue no.2 was upon the workman and the workman had to prove that his services were illegally and/or unjustifiably terminated by the management on 17.05.2013, whereas the onus to prove issue no.3 was upon the management and the management was required to prove that the claimant voluntarily absented himself from duty w.e.f. 16.05.2012. 20 The workman Sh. Netram Kaushik in his cross examination denied the suggestion that he has deposed falsely in para no. 6 of his affidavit regarding himself being unemployed since the date of termination of his services. He further admitted that management of M/s RCI Logistics Pvt. Ltd. has not given him termination letter in writing. During his further cross examination Ld.AR for management put a question to WW1 that when he was transferred to Vapi, to which he replied that he was not transferred but he was sent there for work of the company. He further deposed that he remained at Vapi from August 2012 till LID No. 131/2016 13 April 2013, again said from August 2011 till April 2012. He further denied the suggestion that while working at Vapi he misappropriated some amounts in respect of hiring of trucks in respect of the management and, therefore, he was transferred to Delhi Office or that after coming to Delhi office he misbehaved with Mr. Dilip Kumar Raut on 15.05.2012 and, therefore, a complaint was also lodged with PS Punjabi Bagh. He further denied the suggestion that he misbehaved with Mr. Raut when he was called upon to explain the misappropriation of funds while working at Vapi or that the management ever sent him a letter to calling him to join duty with the management. He further deposed that document Mark B does not bear the correct address at point A as his complete address is H. No. 594, Gali No. 6, Preet Vihar, Arya Nagar, Ward No. 13, Bahadurgarh, Haryana - 124507. He further denied the suggestion that one Jitesh Kumar an employee of the management visited him at his residence on 01.06.2012 to deliver Mark B which he refused to accept. He also denied the suggestion that letter dated 04.06.2012, 12.06.2012 were also sent to him by courier calling upon him to join duty or that one Vikrant an employee of the management visited him at his residence on 11.06.2012 to deliver Mark C which he refused to accept. He further denied the suggestion that one Sawan Kumar an employee of the management visited him at his residence on 19.06.2012 to deliver Mark D which he refused to accept. He further admitted that he has received letter dated 08.05.2014 Ex.WW1/M10x and also that after receiving this letter dated 08.05.2014 he did not go to the management to join his duties. He further denied the suggestion that he took Rs.10,000/ from the management as salary advance on 18.05.2012 and signed at point A on Mark WW1/M11x or took a further advance of Rs.2000/ on 15.05.2012 and signed at point A on Mark WW1/M12x. He further denied the suggestion that Mr. D.K. Srivastava who attended the LID No. 131/2016 14 conciliation never told the Labour Inspector that he has been terminated from services or that the report of the Labour Inspector Ex.WW1/2 is wrong and fabricated. He further admitted that Ex.WW1/2 was not prepared in his presence. He further denied the suggestion that when he joined the management on the advice of this court on 01.04.2014 he was never made to sit in the sun by the management or that as he was not interested to work with the management, therefore, he stopped attending his work w.e.f. 07.04.2014. He further admitted that after 07.04.2014 he never visited the management even once and also that he did not visit the management even after receipt of letter dated 08.05.2014 in which he was called upon to join his duty but he further volunteered that he showed this letter to this court stating that the management is writing him letter but not allowing to join the duties. He further denied the suggestion that he did not visit the management despite receiving letter as he was not interested to work with the management. During his further cross examination Ld.AR for management put a question to WW1 to tell about the fact the management is still willing to give him employment as he has not bene terminated from services, to which he replied that he is in need of job and willing to join. He further denied the suggestion that as a matter of fact he is not interested to join duty but making this statement to prejudice this court or that he has filed a false case against the management.
21 WW2 Sh. Avtar Singh was also cross examined by Ld.AR for management and during his cross examination, Ld. AR for management put a question to WW2 to tell as to whether he had taken any authority letter from the person who had represented himself before him as Mr. D.K. Srivastava to be representative of the management, to which he replied that he can answer the question only after seeing the record. He further deposed that today he has not brought the record LID No. 131/2016 15 prepared by him while conducting proceedings pursuant to complaint Ex.WW1/1 because he was given the summons on 01.10.2015 and some time may be given to him to produce the said record. (Time was granted to WW2 Sh. Avtar to produce the said record and matter was adjourned for his further cross examination). WW2 Sh. Avtar further deposed that after the passing of order on the last date of hearing, he visited the office of Dy. Labour Commissioner, Distt. West and met there with Mr. Sanjay Gupta, ALC, who stated that despite much efforts made by the department original record of proceedings conducted by him on the complaint of Mr. Netram Kaushik against M/s. RCI Logistics Pvt. Ltd. before ALC vide complaint no. 1416 dated 04.10.2012 and report no. LI/AS/WD/1416/8420 dated 05.12.2012 is not traceable, however Mr. Sanjay Gupta provided to him attested copies of the record of conciliation proceeding which is Ex.WW2/1 (colly. 14 pages). He further denied the suggestion that he never conducted any proceedings on the complaint no. 1416 dated 04.02.2012 and for this reason record of the proceedings is not traceable. He further denied the suggestion that report Ex.WW1/2 was furnished by him without actually conducting any proceeding on the complaint no. 1416 dated 04.02.2012. He further admitted that proceedings vide Ex.WW2/1 (colly. 14 pages) were not conducted by Mr. Sanjay Gupta, Asstt. Labour Commissioner. He also admitted that proceedings Ex.WW2/1 (colly. 14 pages) were not conducted in the presence of Mr. Sanjay Gupta, ALC but he volunteered that documents of Ex.WW2/1 (colly. 14 pages) have been attested by Mr. Sanjay Gupta, ALC. He further denied the suggestion that no proceedings as purported vide Ex.WW2/1 (colly. 14 pages) were ever conducted or that he furnished report Ex.WW1/2 under the undue influence of the workman or that report Ex.WW2/1 is not based on actual facts and circumstances or that neither Mr. D.K. Srivastava appeared before him as a representative of the management LID No. 131/2016 16 nor he refused to take the workman back on duty or that his report is false and fabricated.
22 MW1 Sh. Jitesh Kumar was cross examined by Ld.AR for workman and in his cross examination, he deposed that he has been working with the management as Accountant Executive but he is not carrying any proof in respect of his employment with the management, though, he has the appointment letter, but he has not filed any document showing his employment with the management. He further denied the suggestion that he is not employed with the management. He further admitted that the management is a Private Limited Company and also that company is managed by Board of Directors. He further deposed that no resolution has been passed by the Board of Directors authorizing him to depose in this matter. He further deposed that at present there are two peons employed with the management and in May and June 2012, there were two peons with the management. He further admitted that his work relates to Accounts only but simultaneously he volunteered that sometimes he is deputed to work in the field also when no other person is available. He further deposed that by going into the field he means collection of cash from client, visiting the banks in connection with the work of the management etc. He further admitted that the works noted above by him are related to accounts. He further deposed that on 01.06.2012 the peons were on duty, again said he cannot say definitely if they were on duty on that date. During his further cross examination, Ld.AR for workman put a question to MW1 and he was asked to tell as to whether the affidavit filed by him in the court has been given by him out of his own choice or he was directed by the management to give such an affidavit, to which he replied that he was asked by the management that if he could give an affidavit to the fact that he had visited the house of workman in the present case to which he replied that he will give an LID No. 131/2016 17 affidavit to this effect. He further deposed that this conversation with the management was oral and it was not put to writing. He further deposed that he had been working with the management prior to Sh. Net Ram Kaushik (workman) joining the company and he knew him since he initiated his employment with the management. He further deposed that he visited the house of workman in this case only once i.e. about 3 to 4 years ago. During his further cross examination, Ld.AR for workman put another question to MW1 and he was asked to tell as to whether he had visited the house of the workman in this case on 01.06.2012, to which he replied that yes, he had visited. During his further cross examination, Ld.AR for workman put another question to MW1 and he was asked to tell the details of transportation means by using which he visited the house of the workman, to which he replied that he started from the office and boarded the bus from Punjabi Bagh bus stand and got down at Bahadurgarh main bus stand and from there he boarded shared Auto charging Rs.10/ per passenger and got down at Jhajjar Road and thereafter, he walked to the house of workman on foot. He further deposed that he had purchased ticket for going Punjabi Bagh to Bahadurgarh @ Rs.24g or Rs.25, but he did not handover the said ticket to the management to show his journey. He further deposed that he cannot produce the said ticket as he did not preserve the same. During his further cross examination, Ld.AR for workman put another question to MW1 and he was asked to tell the address where he has visited, to which he replied that he had visited the address as mentioned in Ex.MW1/1. He further admitted that in document Ex.MW1/1 in the address portion Jhajjar Road is not mentioned. He further denied the suggestion that address mentioned in Ex.MW1/1 is not complete but he volunteered that he was duly explained about the location/directions of the house of the workman. He further deposed that he had made enquiries vide house no. but it was not fruitful LID No. 131/2016 18 but when he enquired by using the name of the workman he was able to reach at the house of the workman. He further deposed that there was no Gali No. mentioned in the address of the workman. He further admitted that address of the workman is H. No. 594, Gali No. 6, Preet Vihar, Balor Road, Arya Nagar, Bahadurgarh, Haryana. During his further cross examination, Ld.AR for workman put another question to MW1 and he was asked to tell as to whether document Ex.MW1/1 does not mention the complete address of the workman inasmuch as Gali No. 6 and name of the colony Arya Nagar are missing from it, to which he admitted that Gali No. and Arya Nagar are not mentioned in Ex.MW1/1 but he had visited the house of the workman as he was explained about the location of the house of the workman. He further deposed that he was explained about the location by Mr. Bhupender Sharma who worked with the management till prior to 2/ 3 years from today and who had joined the management nearby the time when the workman joined the management. During his further cross examination, Ld.AR for workman put another question to MW1 and he was asked to tell as to whether Mr. Bhupender Sharma did not ever visit the house of the workman and he was also not having any knowledge about the location of the house of the workman and also that Mr. Bhupender Sharma never explained to him about the location of the house of the workman, to which he replied that he was explained about the location of the house of the workman by Mr. Bhupender Sharma but he did not know whether Mr. Bhupender Sharma ever visited the house of the workman or not. He further denied the suggestion that without knowing the Gali No. and name of the colony nobody could have reached at the house of workman. He further deposed that the house of the workman is constructed at ground floor only and he did not notice whether there was any construction over and above the ground floor. During his further cross examination, Ld.AR for workman put LID No. 131/2016 19 another question to MW1 and he was being to draw rough sketch of the house of the workman, which he has drawn which is Ex.MW1/XW1. He further denied the suggestion that the diagram Ex.MW1/XW1 of the house of the workman as drawn by him is not correct. He further deposed that he cannot say if besides the gate of the workman there are two shops with shutters but he volunteered that as far as he recalls, he has drawn the diagram of the house of the workman. He further deposed that he did not recall that on the shops besides the house of the workman the name of shops has been written but he again volunteered that he did not observe the surroundings of the house of the workman as he was not aware that he will be asked all these questions like that in the court. He further denied the suggestion that he did not visit the house of the workman and therefore, he is unable to describe it correctly but he again volunteered that he did not visit the house as narrated by him. During his further cross examination, Ld.AR for workman put a question to MW1 and he was asked to tell as to whether document Ex.MW1/XW2 in which the front portion of the house of the workman has been photographed showing an entrance to a house and two closed shutters of shop with a board 'Saste Ration ka Sarkari Depo', to which he replied that the gate at point A is indeed the entrance of the house of the workman but regarding the shops with shutters he has no reply to give as he did not notice the shutters when he visited the house. He further deposed that the day he visited the house of the workman he did not notice that adjacent shops as shown in Ex.MW1/XW3 were opened or not they contained any goods in these shops. He further deposed that in the management, the peons do not perform the job of delivering letters etc. and this job is done by anyone to whomsoever it is assigned by the management. He further deposed that usually it is assigned to people working in the field and in their absence it could be assigned to anyone. He further deposed that since his LID No. 131/2016 20 date of appointment he might have delivered 4 to 5 letters till date. He further deposed that once he went to Dwarka to deliver to a gentleman named Mr. Negi, sometimes he delivered letters to their Advocates etc. He further deposed that he joined the management in January 2010. He further denied the suggestion that he was not working with the management on 01.06.2012 or prior to this date or that he did not go to the house of the workman as stated by him above or that the workman did not refuse to accept the letter Ex.MW1/1, when tendered to him by him at his residence on 01.06.2012 or that he is deposing falsely. 23 MW2 Sh. Monu Bharadwaj was also cross examined by Ld.AR for workman and in his cross examination, he deposed that he has been working with the management as Cashier at Vapi, Gujarat and he is carrying photocopy of his appointment letter dated 10.02.2012 which is Mark MW2/XM1 as proof of his employment with the management. He further denied the suggestion that he is not employed with the management. He further admitted that the management is a private limited company and also that the company is managed by Board of Directors. He further deposed that no resolution has been passed by the Board of Directors authorizing him to depose in this matter.
FINDINGS 24 Although the management issued several letters dated 25.05.2012, 04.06.2012 and 12.06.2016 to the workman regarding his unauthorized absence from the duty and also seeking his explanation in respect of misappropriation of funds, which were returned undelivered. The management has only placed on record police complaint Ex.MW4/4 filed by the management against the workman for misappropriation of huge sums of money and assault, but the management neither placed on judicial record the copy of FIR nor any witness/police official from the concerned police station has been examined to prove the facts of the said LID No. 131/2016 21 complaint. Mere filing of police complaint on judicial record has no relevance unless facts of the same have been proved by any concerned witness. There were serious allegations against the workman for which the management should have issued a charge sheet to the workman or conducted a domestic enquiry against him but the management did not do so. It is settled law that if an employee has been running absent from his duties and did not join the duty voluntarily, the employer is duty bound to issue some sort of charge sheet or conduct enquiry against such an employee in this regard.
25 This court finds support from the judgment of the Hon'ble Punjab And Haryana High Court in case titled as The Director, Women & Child Development Department, Haryana & Ors. Vs. Shashi Bala & Anr., 2018 LLR 729, wherein it was inter alia held that: "Termination of services of a worker on account of misconduct of misappropriation of money without holding proper enquiry through an independent impartial Enquiry Officer is illegal".
"Nonconducting of departmental enquiry prior to termination of services of a worker on account of misconduct is violation of principles of natural justice".
26 In the present case according to the management the workman had committed misconduct of misappropriation of funds and thereafter, he was running absent from his duties and did not join the duty despite sending various letters via post or personally. However, the letters sent to the workman calling him back to join the duties and also to explain his acts of financial bungling were returned back undelivered. The management also could not prove that MW1 Sh.
LID No. 131/2016 22Jitesh Kumar had met the workman at his house for tendering letter dated 25.05.2012 which is Ex.MW1/1. The management also did not lead any cogent evidence to prove that the workman had committed misconduct of misappropriation of funds. Therefore, keeping in view all these facts and circumstances and also keeping in view aforesaid law point, this court of the opinion that it was bounden duty of the management to conduct a domestic enquiry against the workman for alleged misconduct but the management did not do so. Labour Inspector's report Ex.WW1/2 and conciliation proceedings Ex.WW2/1 (colly.) also prove that the management refused to take the workman back on duty. Accordingly, it is held that the services of the workman were terminated by the management on 17.12.2012 illegally and/or unjustifiably in violation of provisions of section 25 F, 25 G and 25 H of the Industrial Disputes Act, 1947. As far as order dated 30.10.2017 passed by Authority under Shops & Establishment Act on the application of the workman is concerned, same has no relevance as that case was filed by the workman regarding recovery of his due earned wages. Issue no.2 and 3 are decided in favour of the workman and against the management.
RELIEF (ISSUE NO.4) 27 As far as relief part is concerned, the workman has made a prayer in statement of claim that he is unemployed since the date of termination of his service and as such the management be directed to reinstate him in service with full back wages including benefits of continuity of service and all other consequential benefits. However, this court is of the opinion that since there were serious allegations of misappropriation of funds against the workman, therefore, reinstatement of the workman in service would not be in the interest of both the parties and the compensation in lieu of reinstatement would be a better option.
LID No. 131/2016 2328 This court also finds support from the judgment of the Hon'ble Supreme Court of India in case titled Employers, Management of central P & D Inst. Ltd Vs Union of India & Another, AIR 2005 Supreme Court 633 wherein it was held that "it is not always mandatory to order reinstatement after holding the termination illegal and instead compensation can be granted by the court."
29 Similar views were expressed by the Hon'ble Delhi High Court in case titled as Indian Hydraulic Industries Pvt. Ltd. Vs Krishan Devi and Bhagwati Devi & Ors. ILR (2007) I Delhi 219 wherein it was held that "even if the termination of a person is held illegal, Labour Court is not supposed to direct reinstatement along with full back wages and the relief can be moulded according to the facts and circumstances of each case and the Labour Court can allow compensation to the workman instead of reinstatement and back wages."
30 Coming now to the aspect of compensation. The workman claimed that his last drawn salary was Rs.18,000/ per month which fact proves from the vouchers Ex.WW1/M3X and Ex.WW1/M4X. The workman also claimed that he was appointed with the management on 01.01.2011. However, in his cross examination, he has deposed that he joined the management on 02.01.2011. Hence, the date of appointment of the workman is held to be 02.01.2011. The total length of service of the workman is about 1.5 years. Therefore, keeping in view all these facts and circumstances, this court grants a lump sum compensation of Rs.50,000/ (Rupees Fifty Thousand only) to the workman in lieu of his reinstatement, back wages and consequential benefits. The amount of compensation shall be paid to the workman by the management within one month LID No. 131/2016 24 from the date when this award becomes enforceable failing which the amount shall carry an interest @ 9% per annum from the date it becomes due till the time it is realized. The claim of the workman is disposed off accordigly. 31 A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
PRONOUNCED IN OPEN (RAMESH KUMARII)
COURT ON 16.03.2020 PRESIDING OFFICER:LABOUR COURT
ROUSE AVENUE DISTRICT COURT
NEW DELHI
LID No. 131/2016 25