Delhi District Court
Bisheshwar Prasad S/O Sh. Ramji Lal vs M/S. Sunil Wires Industries (P) Ltd on 20 February, 2014
Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI :
KARKARDOOMA COURTS : DELHI .
REFERENCE CASE (ID No. 598/04).
UNIQUE CASE ID No. 02402C0412432004.
In the matter of :
Bisheshwar Prasad S/o Sh. Ramji Lal
R/o H. No. 167/09, K Block,
Sangam Vihar, New Delhi 110062.
C/o Engineering Workers Lal Jhanda Union,
47, Amichand Khand, Giri Nagar,
Kalkaji, New Delhi - 110019. ......... Workman.
V/s.
M/s. Sunil Wires Industries (P) Ltd.
X 56, Okhla Phase II,
New Delhi 110020. ..........Management.
Date of Institution : 23.02.1996.
Date of reserving for award : 23.01.2014
Date of award : 20.02.2014
AWARD :
1.TERMS OF REFERENCE:
Vide Order No. F.24 (3556) / 95 Lab. /12071 76 dated 16.02.1995 Secretary (Labour), Government of N.C.T. Of Delhi made the following reference u/s. 10(1) (c) and 12(5) of the Industrial Disputes Act, 1947 for adjudication by this court : "Whether the dismissal of Sh. Bisheshwar Prasad from service is illegal and / or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. Workman in the StatementofClaim alleged / pleaded as under :
(i) Workman was working with the management as 'Operator' since 01.10.1988 and Page 1 to 29 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04 his monthly salary was Rs.1548/.
(ii) Service record of the workman was neat, clean and unblemished. Management had no complaint(s) regarding the work of the workman.
(iii) Workman was an active member of the union. Management used to take overtime work from the workmen but management was not making payment for the overtime work as per rules (i.e. @ double the salary), on account of which workman raised objection against the management. For this reason, management started to conspire for removing the workman from the service. Management, without any chargesheet or notice terminated the services of workman on 30.07.1993. However, under the influence of labour office, management settled the matter at labour office on 06.08.1993 and agreed to reinstate the workman w.e.f. 07.08.1993. On 07.08.1993 itself management labelled false allegation regarding "marpeet" against the workman and got the workman detained in police station. At the police station, management with the help of police officers started to pressurize the workman to settle the accounts.
(iv) Management gave chargesheets dated 28.07.1993 and 07.08.1993 to the workman by labelling false and baseless allegations. During the enquiry principles of natural justice were violated and examples for the same are as under :
(a) Management suspended the workman during enquiry vide letter dated 07.08.1993 and, without giving notice U/S. 9 A of the Industrial Disputes Act, 1947, management ordered the workman to mark his attendance daily during the suspension period. Further management had clarified that if the workman shall not mark his attendance, workman shall not be paid subsistence/suspension allowance for the dates on which workman fails to mark his attendance. This was despite the fact that there is (sic) no provision of marking attendance daily in the service conditions of the workman which were dealt by Model Standing Orders under the Industrial Employment Standing Order. The Page 2 to 29 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04 management had given the aforesaid order because management wanted to put the workman under financial constraints during enquiry by reducing payment(s) towards subsistence/ suspension allowance. Sometimes management did not allow the workman to mark his attendance and made deductions from the subsistence allowance. Workman repeatedly requested the Enquiry Officer for payment of subsistence allowance to the tune of 50% for three months and 75% thereafter as per Model Standing Order, but the Enquiry Officer failed in this regard. Workman could not effectively participate in the enquiry on account of financial constraints and the management failed to fulfill its legal obligation.
(b) Sh. Viresh Kumar Tyagi, who was the manager, had given chargesheets to the workman and had appointed the Enquiry Officer. Further Sh. Viresh Kumar Tyagi himself presented the case of the management as a management's representative during the enquiry before the Enquiry Officer. Sh. Viresh Kumar Tyagi, who had appointed the Enquiry Officer, used to give orders on behalf of the Enquiry Officer. Further Sh. Viresh Kumar Tyagi kept the Enquiry Officer under his influence and used the services of the Enquiry Officer for his own purposes. In this manner management violated the principle of natural justice that "nobody can be a judge in his own cause".
(c) Enquiry was fixed for 24.03.1994. On the said date workman attended the enquiry with his representative and the Enquiry Officer wanted to give 01.04.1994 as next date of hearing. The representative of workman told the Enquiry Officer that he is busy till 06.04.1994 & requested the Enquiry Officer to give a date after 06.04.1994 but Enquiry Officer did not agree to change the date. On 01.04.1994 workman came to attend the enquiry but Enquiry Officer and management representative did not come to factory till 3.40 p.m. and at 3.40 p.m. workman returned to his house. Workman was not Page 3 to 29 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04 given next date of hearing for enquiry nor such date was intimated through registered letter as used to be done in past. Thus workman intended to know next date for enquiry by writing a letter on 09.04.1994. Manager Mr. Viresh Kumar Tyagi vide letter dated 22.04.1994 replied that on account of failure of workman to attend the enquiry on 01.04.1994 workman was proceeded exparte and enquiry was concluded on 01.04.1994. Management in connivance with Enquiry Officer conducted (purported) false proceedings on 01.04.1994 and workman was deprived of an opportunity to cross examine management's witnesses Sh. Viresh Kumar Tyagi and Sh. Jagdish Prasad Gupta.
(d) Management did not provide copy of the enquiry report before letter dated 26.04.1994 vide which the services of workman were terminated and for this reason workman was deprived of opportunity to give his representation against the exparte order dated 01.04.1994. The act of supplying the enquiry report alongwith letter terminating the services is in violation of Model Standing Order.
(e) While preparing the enquiry report the Enquiry Officer did not discuss the evidence recorded during the enquiry. Also the Enquiry Officer did not discuss the charges labelled on 07.08.1993. Also depositions of the witnesses were not discussed in the enquiry report while holding that charges stands proved.
(f) Management violated the Model Standing Order by terminating the services of the workman in as much as before punishing the workman with the punishment of dismissal from service, workman was not given opportunity to put his case regarding his past service record.
(v) Workman raised an industrial dispute regarding termination of his services on 26.04.1994 under Section 10 r/w Section 2A of the Industrial Disputes Act, 1947 before the Conciliation Officer but the management did not show any interest to settle the matter and, therefore, present reference has been made by the Delhi Government to this Page 4 to 29 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04 court.
(vi) Workman is unemployed since the date of termination of his services and he has got no source for his livelihood. Despite his best efforts, workman could not get any service.
With these averments in the StatementofClaim, workman prayed that action of the management in terminating his services on 26.04.1994 be declared as illegal and unjustified and, further, workman be reinstated in service with full back wages and continuity of service.
3. STAND AS PLEADED IN AMENDED WRITTEN STATEMENT OF DEFENCE OF MANAGEMENT:
In its amended written statement management denied in toto the case as pleaded by the workman and took the stand that workman was employed as a 'Helper' and his last drawn wages were Rs.1548/ only. As per management it is totally incorrect that (i) management had illegally terminated the services of workman on 30.07.1993 or that under the pressure of the Labour Department, the management had entered into any settlement; (ii) the workman was beaten up on 07.08.1993 and got arrested on any false allegation and (iii) the management took help of any police official to pressurize the workman to settle his account. As per management relationship of employer and employee does not cease during the period of suspension and suspended workman is not entitled to work anywhere else during his suspension period and, as such, it was not a violation of Section 9A of the Industrial Disputes Act, 1947 to have required the workman to mark his attendance in the factory during suspension. Further, as alleged, no real prejudice was caused to the workman in defending the charges by such instructions of the management. As per management, due suspension allowance had been paid to the workman even though he had been directly responsible for delaying the enquiry Page 5 to 29 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04 proceedings. As alleged, workman is required to prove that after 90 days of suspension he was not paid 75% of his wages as suspension allowance and to further prove any real prejudice caused to him on account of the alleged less payment of suspension allowance. As per management, Model Standing Orders were not strictly applicable to the establishment as it had never employed 100 or more workmen on its roll and the Enquiry Officer conducted the enquiry in an independent and fair manner in accordance with the principles of natural justice. As alleged, since Mr. Viresh Kr. Tyagi was not the enquiry officer, the question of his acting both as prosecutor as well as Judge did not arise.
As per management the Enquiry Officer was not bound to fix the dates merely at the convenience of workman or his representative and workman and his representative were bound to appear before the Enquiry Officer on each and every date fixed by him. The Enquiry Officer had been more than accommodative to the requests of workman and his representative, made from time to time and since the workman was under
suspension, the enquiry was required to be conducted expeditiously. As alleged, the reason given by the representative of the workman during the proceedings held on 24.03.1994 for seeking a long date after 06.04.1994 (i.e. some rally) was not good and sufficient reason for long adjournment and accordingly the Enquiry Officer was not legally bound to accept such a request and had rightly adjourned the enquiry to 01.04.1994. As per management, on the date fixed (i.e. 01.04.1994) since neither the workman nor his representative attended the enquiry, the Enquiry Officer had rightly proceeded exparte against them.
Management admitted that copy of enquiry report was given to workman alongwith dismissal letter dated 26.04.1994 and no real prejudice had been caused to the workman by not giving the copy of the enquiry report earlier as workman had been rightly proceeded against exparte on 01.04.1994. Also, as per management, the Enquiry Page 6 to 29 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04 Officer is not supposed to write a detailed and elaborate enquiry report like a judgment given by a court and it is sufficient if after considering the record of the enquiry and documents produced by management as well as statement of witnesses, he (Enquiry Officer) held the charges to be proved against the workman, particularly when the workman had been proceeded exparte and evidence of the management's witnesses was unrebutted. Further, as per management, Model Standing Orders were strictly not applicable to the factory and the management was under no legal obligation to issue second show cause notice. The service record of the workman was duly considered before imposing the punishment and no real prejudice had been caused to the workman. Also management has alleged that in the absence of the efforts alleged to have been made by workman to seek alternative employment, it can be legitimately presumed that workman is gainfully employed elsewhere and has deliberately suppressed this fact from the court. As per management, management having been permanently closed down w.e.f. 31.01.1997, the claim of the workman for reinstatement in service with full back wages is not legally maintainable and is infructuous.
Lastly management prayed that the claim of workman may kindly be rejected, the reference may be answered in favour of the management and against the workman and it may be held that workman is not entitled to any relief whatsoever.
4. REJOINDER:
Workman filed rejoinders to the written statements (i.e. original as well as amended) of the management taking a specific stand in the rejoinder to the amended written statement that the management has not been closed down and it is still working and earning huge profits. The stand of the management has been denied by the workman in toto in the rejoinders.
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Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04
5. ISSUES
Vide order dated 07.04.2000 following issues were framed by the ld. predecessor of this court :
(i) As per terms of reference.
(ii) Whether fair and proper enquiry had not been held? Further on 04.04.2012 following additional issue was framed :
(i) Whether the management establishment has been closed, if yes, from what date and period? OPM.
6. EVIDENCE ON ENQUIRY ISSUE & ORDER ON ENQUIRY ISSUE:
In the evidence on the enquiry issue, workman appeared in the witness box as WW1 Bisheshwar Prasad. Management examined MW1 Sh. Raju Gupta. Vide order dated 28.02.2011 ld. predecessor of this court decided the preliminary issue regarding fairness and properness (propriety) of the enquiry against the management and held that the enquiry stood vitiated.
7. EVIDENCE FOR PROOF OF MISCONDUCT BEFORE THE COURT:
Vide order dated 28.02.2011 case was fixed for management's evidence to prove the misconduct on the part of the workman before the court. Management examined MW2 Sh. Sandeep Chaudhary. Management relied upon documents: Ex. MW2/1: Copy of Board Resolution dated 10.12.1990 appointing MW2 Sh. Sandeep Chaudhary as Engineer Production Incharge of the management; Ex. MW2/2: Copy of Board Resolution dated 02.05.2011 authorizing MW2 Sh.
Sandeep Chaudhary to give evidence and depose before this court on behalf of management;
Ex. MW2/3: Photocopy of a letter dated 26.02.1997 intimating Provident Fund Commissioner about closure of factory;
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Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04
Ex. MW2/4: Photocopy of a letter dated 26.02.1997 to the Chief Inspector of
Factories regarding closure of the factory;
Ex. MW2/5: Photocopy of the letter dated 01.11.1999 intimating the Chief Inspector of Factories regarding full and final settlement with all employees on rolls at the time of closure;
Ex. MW2/6: Photocopy of a letter dated 26.02.1997 informing the ESI Corporation regarding closure of the factory;
Ex. MW2/7: (Collectively): Photocopy of the letter dated 14.01.1997 to the Superintendent, Central Excise informing him about the closure of the management / stoppage of all manufacturing activities and letter dated 29.01.1997 surrendering the Excise Registration Certificate;
Ex. MW2/8: (Collectively): Photocopies of six vouchers signed by all the six workmen working with the management at the time of closure accepting payment of their full and final dues / settlement of their account;
Ex. MW2/9: Photocopy of chargesheet dated 28.07.1993 issued to the claimant; Ex. MW2/10: Photocopy of the letter addressed to all seven workers who went on illegal and unjustified strike w.e.f. 29.07.1993 after receiving chargesheet dated 27.07.1993 regarding tool down strike;
Ex. MW2/11: Photocopy of letter dated 29.07.1993 written by management to Labour Commissioner intimating him about the strike;
Ex. MW2/12: Photocopy of undertaking dated 29.07.1993 given by workman for not going on any strike;
Ex. MW2/13: (Collectively): Original letters of settlement with workers Saleem and Rakesh.
Ex. MW2/14: Photocopy of a letter dated 26.04.1994 vide which services of workman were terminated.
After the decision on the enquiry issue workman appeared in the witness box as WW1/R1 Bisheshwar Prasad. Workman relied upon following documents: Ex. WW1/R1: Photocopy of letter dated 30.03.1992 sent to the Assistant Labour Commissioner regarding General Checking;
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Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04
Ex. WW1/R2: Photocopy of Demand Notice dated 11.04.1992 sent to the management by the union;
Ex. WW1/R3: Photocopy of postal receipt;
Ex. WW1/R4: Photocopy of acknowledgment card;
Ex. WW1/R5: Photocopy of the claim petition filed before the Conciliation Officer by the union;
Ex. WW1/R6: Photocopy of notice dated 12.05.1992 sent to the management by the Assistant Labour Commissioner / Conciliation Officer;
Ex. WW1/R7: Photocopy of letter dated 28.05.1992 written by the labour inspector to the union;
Ex. WW1/R8: Photocopy of letter dated 03.08.1993 written by the labour inspector to the union;
Ex. WW1/R9: Carbon copy of demand notice dated 03.05.1994 sent to the management by the workman for reinstatement in service;
Ex. WW1/R10: Original postal receipt;
Ex. WW1/R11: Original slip bearing name of the workman and the address of his union; Ex. WW1/R12: Carbon copy of the claim petition filed by the workman before the Conciliation Officer.
In the course of crossexamination of MW2 Mr. Sandeep Chaudhary workman also relied upon Ex.MW2/M1x, letter dated 07.08.1993 containing charged against the workman and vide which workman was suspended.
8. ARGUMENTS:
I have heard Sh. Neeraj Chaudhary, AR for the workman and Ms. Deepti Singh Sodhi, Advocate for the management. Written submissions have also been filed by both the parties. Ld. ARW relied upon case law reported as Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D. ED) & ors. MANU/SC/0942/2013. Ld. Page 10 to 29 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04 counsel for the Management has relied upon the following case laws : (i) Om Prakash Mann Vs. Director of Education (BASIC) & Ors. (2006) 7 SCC 558; (ii) Krishna Chandra Tandon Vs. The Union of India (1974) 4 SCC 374; (iii) J.K. Iron and Steel Company Ltd. Vs. Iron and Steel Mazdoor Union & Ors. (1956) 1 LLJ 227; (iv) R. Thiruvirkolam Vs. Presiding Officer & Anr. (1997) 1 SCC 9; (v) Engineering Laghu Udyog Employees' Union Vs. Judge Labour Court and Industrial Tribunal & Anr. 2004 (100) FLR 843; (vi) Kendriya Vidyalaya Sangathan & Anr. Vs. S.C. Sharma (2005) 2 SCC 363; (vii) L.K. Verma Vs. HMT Ltd. & Anr. (2006) 2 SCC 269; (viii) Biecco Lawrie & Anr. Vs. State of West Bengal & Anr. 2009 (4) LLN 91; (ix) Haryana Financial Corporation And another Vs. Kailash Chandra Ahuja (2008) 9 SCC 31 and
(x) Usha Breco Mazdoor Sangh Vs. Management of M/s. Usha Breco Ltd. & Anr. 2008 LLR 619.
9. My ISSUEWISE findings are as under: ISSUE Whether the management establishment has been closed, if yes, from what date and period? OPM.
Management in this case is M/s Sunil Wires Industries Pvt. Ltd. It is not the case here that M/s Sunil Wires Industries Pvt. Ltd. stands wound up. The specific stand of the management is that it has permanently closed down its factory. MW2 Sh. Sandeep Chaudhary in para. no. 3 of his affidavit Ex.MW2/A deposed that management stopped all its manufacturing activities and factory was permanently closed down on 31.01.1997. In this regard management is relying upon documents exhibited as Ex.MW2/3 (Photocopy of a letter dated 26.02.1997 intimating Provident Fund Commissioner about closure of factory); Ex.MW2/4 (Photocopy of a letter dated 26.02.1997 to the Chief Inspector of Factories regarding closure of the factory); Ex.MW2/5 (Photocopy of the Page 11 to 29 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04 letter dated 01.11.1999 intimating the Chief Inspector of Factories regarding full and final settlement with all employees on rolls at the time of closure); Ex. MW2/6 (Photocopy of a letter dated 26.02.1997 informing the ESI Corporation regarding closure of the factory); Ex.MW2/7(collectively) (Photocopy of the letter dated 14.01.1997 to the Superintendent, Central Excise informing him about the closure of the management / stoppage of all manufacturing activities and letter dated 29.01.1997 surrendering the Excise Registration Certificate) and Ex.MW2/8 (collectively) (Photocopies of six vouchers signed by all the six workmen working with the management at the time of closure accepting payment of their full and final dues / settlement of their account). Stand of the workman is that management has never been closed down. With regard to issue of closure MW2 Sh. Sandeep Chaudhary deposed as under in his cross examination: "...It is correct that the Management has not taken the plea of closure of its establishment in the written statement filed by the Management. There is no orders of the Hon'ble High Court of Delhi with respect to the closure of Management establishment.
It is wrong to suggest that the documents filed by me regarding closure of the Management establishment i.e. documents Ex.MW2/1 to Ex. MW2/7 all are false and fabricated documents. I am presently working with M/s. N.C. Cables Limited situated at K51, Connaught Place, New Delhi - 110 001. The factory of this establishment is situated at 3A, Sector 31, Greater Noida, U.P. It is wrong to suggest that an industry under the name and style of M/s. National Cables is being run at the address at X56, Okhla Industrial Area, PhaseII, New Delhi. Again said Unit - II of M/s. N.C. Cables Limited is also running at X56, Okhla Industrial Area, PhaseII, New Delhi. It is wrong to suggest that the Management establishment has never been closed and only its name has been changed.
It is correct that a few Directors are common in the Managements M/s. N.C. Cables Limited and M/s. Sunil Wires Industries Private Limited. Vol. These two are separate entities. M/s. N.C. Cables Limited is a limited establishment and M/s. Sunil Wires Industries Private Limited is a private limited company. It is correct that the Management as well as M/s. N.C. Cables Limited use to Page 12 to 29 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04 manufacture wires. Vol. The Management in the present case used to manufacture telephone wires for Department of Telephone and M/s. N.C. Cables Limited is manufacturing industrial wires and cables for industrial departments. It is correct that the machinery of the Management is being used by the M/s. N.C. Cables Limited. Vol. Some new machinery has also been added...."
Management in its amended WS in Preliminary Objections no.1 has specifically pleaded about closure of the factory of management. Except giving bald suggestions to MW2 Sh. Sandeep Chaudhary no positive evidence has been led by workman that management is still running its factory and carrying out manufacturing unit / activities. But above depositions of MW2 Sh. Sandeep Chaudhary suggest that M/s Sunil Wires Industries Pvt. Ltd. and M/s N. C. Cables Limited are two separate entities. M/s N. C. Cables Limited is a limited establishment and M/s Sunil Wires Industries Pvt. Ltd. is a private limited company. There is also change in the nature of business / manufacturing activity (i.e. M/s Sunil Wires Industries Pvt. Ltd. used to manufacture telephone wires for Department of Telephones and M/s N. C. Cables Limited is manufacturing industrial wires and cables for industrial departments). The mere facts that (i) few directors are common in both the companies; (ii) M/s N. C. Cables Limited is, interalia, using the premises (i.e. X56, Okhla Industrial Area, PhaseII, New Delhi) of M/s Sunil Wires Industries Pvt. Ltd. and that (iii) machinery of M/s Sunil Wires Industries Pvt. Ltd. is being used by M/s N. C. Cables Limited besides purchasing new machinery do not and cannot mean that both the companies (i.e. M/s Sunil Wires Industries Pvt. Ltd. and M/s N. C. Cables Limited) are one and the same. Undoubtedly, each company is a separate legal entity in law and, thus, M/s Sunil Wires Industries Pvt. Ltd. and M/s N. C. Cables Limited are also two separate legal entities. Here no case for lifting the corporate veil is made out in as much as it is not the case of even the workman that corporate personality Page 13 to 29 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04 of the company is / was being used to commit frauds or improper or illegal acts. There is no crossexamination of MW2 Sh. Sandeep Chaudhary on these lines (i.e. factory is being closed to commit frauds or improper illegal acts). The documents exhibited as Ex.MW2/3 to Ex.MW2/8 are sufficient to make anyone to conclude that management M/s Sunil Wires Industries Pvt. Ltd. has closed all its manufacturing activities.
Here provisions of section 25 F F A of the Industrial Disputes Act, 1947 do not apply. Workman nowhere pleaded in the statementofclaim that management employed more than 50 employees. Management in its WS specifically pleaded that it never employed more than 25 workmen. Workman also did not specifically plead that management employed one hundred or more workmen at any point of time. Without pleading / satisfying the requirements for the applicability of the Industrial Employment (Standing Orders) Act, 1946 workman directly pleaded that service conditions of workman were governed by Model Standing Order. In reply, management specifically pleaded that Model Standing Orders were not strictly applicable to the management since number of workmen employed was much less (never exceeded 25) than the number required to attract the provisions of the Industrial Employment (Standing Orders) Act, 1946. Workman even himself did not depose that management employed one hundred or more workmen at any point of time. No other evidence has also been brought by workman that management at any point of time employed one hundred or more workmen at any point of time. In this background, stand of the management that the provisions of the Model Standing Order were not strictly applicable to the management can be said to be true and correct. Merely because MW1 Raju Gupta in his cross examination at the time of evidence on enquiry issue deposed that, "....... karamchari ki sewa ki sharten Model Standing Order dwara nirdharit ki gayi thi........" does not mean that management Page 14 to 29 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04 employed requisite number of employees as is required to attract, strictly, the provisions of the Industrial Employment (Standing Orders) Act, 1946. To prove that management employed fifty or one hundred or more than one hundred workmen at any point of time, workman has to so plead specifically and prove by leading cogent and convincing evidence and no such inference can be drawn from the mere fact that management had adopted the Model Standing Order. There is no suggestion to MW2 Sh. Sandeep Chaudhary that management at any point of time employed fifty, one hundred or more than one hundred workmen at any point of time. Thus, provisions of section 25 F F A of the Industrial Disputes Act, 1947 read with Rule 76 B of the Industrial Disputes (Central) Rules, 1957 have no application in this case. Here workman has been dismissed from service by way of punishment inflicted by way of disciplinary action and, hence, management was not supposed to follow the provisions of Rule 76 of the Industrial Disputes (Central) Rules, 1957. Whether or not dismissal is found to be proper / justified by the Court is a different aspect. Obviously, for closure of its factory, management need not to have winding up orders under the provisions of the Companies Act, 1956. Management as a company namely M/s Sunil Wires Industries Pvt. Ltd. is admittedly still existing and it has only / simply closed its factory / manufacturing activities. Once this Court finds that management has closed its factory / manufacturing activities, this Court is not concerned to go into the question as to the motive which guided the management company to close down its factory / manufacturing activities. Also, section 9A of the Industrial Disputes Act, 1947 has no application in the facts and circumstances of this case. Here is a case of closure of factory / stopping of manufacturing activities and in such an eventuality neither the provisions of section 9A read with Fourth Schedule nor 25 F of the Industrial Disputes Act, 1947 are applicable. Provisions of section 25 F of the Industrial Disputes Act, 1947 have no application to a Page 15 to 29 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04 closed or dead industry. (Hariprasad Vs A. D. Divelker AIR 1957 SC 129 relied.) In any case, workman herein was not an employee of management as on 31.01.1997 when management closed its factory / manufacturing activities as workman herein stood already dismissed from his services on 26.04.1994. Workman herein cannot be said to be a workman likely to be affected by the change, even if it is so, contemplated under the provisions of section 9A read with Fourth Schedule of the Industrial Disputes Act, 1947. As per Ex.MW2/8 (colly.) all the workmen of management employed at the time of closure of factory settled their accounts. As the facts, suggest they raised no dispute / issue as to compliance / noncompliance with the provisions of section 9A read with Fourth Schedule of the Industrial Disputes Act, 1947. In any case, in these proceedings initiated on a reference regarding termination of services of workman, this Court is not concerned with the compliance of provisions of section 9A read with Fourth Schedule of the Industrial Disputes Act, 1947 qua the workmen employed by the management at the time of its closure on 31.01.1997.
In my considered opinion, section 9A read with Fourth Schedule of the Industrial Disputes Act, 1947 has no application in this case and its compliance / non - compliance has no bearing on the fate of this case. It is not the case here that management (i.e. Sunil Wires Industries Pvt. Ltd.) still continued with the manufacturing activities even after 31.01.1997 with rationalisation, standardisation or improvement of plant or technique which is likely to lead to retrenchment of workman. As the facts suggest management settled accounts with its existing workmen vide Ex.MW2/8 and, in such circumstances, it cannot be said that workmen were retrenched. In any case, now manufacturing activity is being carried out by M/s N. C. Cables Limited which is a separate and distinct legal entity different from M/s Sunil Wires Industries Pvt. Ltd. Thus, this issue is decided in favour of management and it is held that management M/s Sunil Wires Industries Pvt.
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Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04
Ltd. closed its factory / manufacturing activities on 31.01.1997 without violating legal provisions.
ISSUE : As per terms of reference.
("Whether the dismissal of Shri Bisheshwar Prasad from service is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?") As regards alleged misconduct on the part of workman, MW2 Sh. Sandeep Chaudhary in his evidence affidavit deposed as under: "5. That on 24.07.1993, the claimant along with six other co workers, resorted to tool down strike at 9 am without any justification or legal demand and created trouble in the work of other workers. The immediate provocation for the strike, which was observed by seven workers, was the suspension of one coworker Sh. Jeet Singh, for misconduct. Charge sheets were issued on 28.07.1993 to all seven striking workers. A copy of the chargesheet dated 28.07.1993, issued to the claimant may be read as Ex.MW2/9. That after receiving the chargesheet dated 27.07.1993, regarding tool down strike, the seven workers went on illegal and unjustified strike w.e.f. 29.07.1994. A copy of the letter addressed to all seven workers may be read as Ex.MW2/10. The Labour Office was informed about this strike vide the management's letter dated 29.07.1993. A copy of the letter dated 29.07.1993 may be read as Ex.MW2/11.
6. That upon the intervention of the Labour Officer who visited the factory, the striking workers including the present claimant had given undertakings of not going on any strike. The claimant gave his signed undertaking on 27.07.1993 wrongly mentioning himself to be a skilled workman. On noticing the such mistake, the claimant again gave another undertaking correctly mentioning himself as a semi skilled workman. Copies of the undertakings may be read as Ex.MW2/12 (Colly.).
7. That despite assurances, the strike continued till 07.08.1993 on which date, in the morning, one fresh helper Jagdish was engaged to assist Operator Jagdish in starting the machinery. I was present with them when they started the machinery. At around 11:45, four workers Page 17 to 29 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04 namely Salim, Rakesh, Satpal and the present claimant came to the place where Jagdish (Operator) and Jagdish (Helper) were operating the machine under my supervision and asked us to stop working as the workers are observing a strike and no machines should be operated. However, they continued to operate the machine under my supervision. I made an attempt to stop an y confrontation between the two workers operating the machine and the four workers trying to obstruct them. The four workers including the claimant started loudly abusing me in the name of my mother and father. Thereafter, the claimant and started hitting me with his fists while continuing to hurl abuses.
8. That on 07.08.1993 itself, the claimant and three others were issued a charge sheet cum suspension letter for stopping me from working, abusing me as well as beating me at 11:45 am on 07.08.1993. They were suspended with immediate effect.
9. That four enquiries were initiated against the charge sheeted workers including the claimant with respect to the charges dated 24.07.1993 and 07.08.1993. During the course of enquiry, the other three workers, i.e. Salim, Rakesh and Satpal settled the matter with the management by accepting their mistake. The settlement with Saleem and Rakesh may be read as Ex.MW2/13 (Colly.). The claimant did not admit the charges nor show any interest in settlement. After completion of enquiry proceedings, the enquiry officer had held the claimant guilty of the charges and accordingly the services of he claimant were terminated on 26.04.1994. A copy of the letter dated 26.04.1994 may be read as Ex.MW1/14.."
In civil cases the standard of proof is satisfied on a balance of probabilities. However, even within this formula variations in subject matter or in allegations will affect the standard required; the more serious the allegation, for example fraud, crime or professional misconduct, the higher will be the required degree of proof, although it will not reach the criminal standard.
Hon'ble Supreme Court of India in case law reported as Maharashtra State Board of Secondary and Higher Secondary Education Vs K. S. Gandhi & Ors. (1991) 2 SCC 716 observed / ruled as under:
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"37. It is thus well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inference in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to establish. In some cases the other facts can be inferred, as much as is practical, as if they had been actually observed. In other cases the inferences do not go beyond reasonable probability. If there are no positive proved facts, oral, documentary or circumstantial from which the inferences can be made the method of inferences fails and what is left is mere speculation or conjecture. Therefore, when an inference of proof that a fact in dispute has been held established there must be some material facts or circumstances on record from which such an inference could be drawn. The standard of proof is not proof beyond reasonable doubt "but" the preponderance of probabilities tending to draw an inference that the fact must be more probable. Standard of proof cannot be put in a straitjacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is the same both in civil cases and domestic enquiries."
In this case domestic enquiry conducted by the management for enquiring into the alleged misconduct of the workman has already been held to have been vitiated vide order dated 28.02.2011. It is noted that enquiry conducted by the management has been held to have been vitiated, interalia, on technical ground (i.e. the person who had appointed the enquiry officer also appeared before the enquiry officer as management's representative and, thus, there was violation of principles of natural justice that nobody Page 19 to 29 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04 can be an arbiter in his own case) and it is not the case that record of the enquiry proceedings otherwise did not properly reflect the actual proceedings conducted by the enquiry officer.
Management is supposed to prove alleged misconduct on the part of workman on the yardstick of preponderance of probabilities. Management is supposed to maintain consistency in all material aspects as regards its stand / version during the enquiry proceedings conducted by it as well as before this Court while proving the misconduct on the part of the workman. Minor deviations, however, may not have any effect. Thus, the record of the enquiry proceedings is also relevant while deciding as to whether management has been able to prove alleged misconduct on the part of the workman by leading evidence before the Court after the enquiry issue stands decided against the management. At this juncture, it would be appropriate to refer to a case law reported as Idukki District Estate Workers' Union Vs Labour Court and Anr. MANU/KE/0174/1988 wherein it has been observed as under: "3. ......Section 11A of the Industrial Disputes Act provides that the Labour Court shall rely only on the material on record. What is 'material on record' came up for consideration in workmen of Firestone Tyre and Rubber Co. of India P. Ltd. v. Firstone Tyre and Rubber Co. of India P. Ltd. MANU/SC/0305/1973. In the said decision (paragraph 46), the Court observed that 'material on record' takes in (at page 298):
(i) the evidence taken by the management at the enquiry and proceedings of the enquiry; or
(ii) the above evidence and, in addition, any further evidence led before the Tribunal; or
(iii) evidence placed before the Tribunal for the first time in support of the action taken by an employer as well as the evidence adduced by the workmen contra.
4. Category (i) refers to evidence taken by the management at the enquiry. This is clear indication that evidence at the domestic enquiry is "material on record". The fact that the domestic enquiry was found to be vitiated will not have the effect of obliterating whatever was done in the course Page 20 to 29 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04 of the enquiry. The language of Section 11A, as interpreted b y the Supreme Court, leaves no room for doubt that evidence already recorded at the domestic enquiry is material on record that could be and should be considered. There are no rules of evidence or procedure governing this area. In the absence of rules, there is no warrant to think that such evidence should be excluded from consideration......."
As per enquiry report charges were labelled against the workman, Mr. Rakesh Kumar and Saleem vide chargesheets dated 28.07.1993 and 07.08.1993. It is pertinent to note that chargesheet dated 07.08.1993 has not been proved on record by the management in the course of evidence led by management to prove their alleged misconduct on the part of workman before the Court. However, chargesheet dated 07.08.1993 (Ex.MW2/M1x) was put to MW2 Mr. Sandeep Chaudhary in his cross examination by ld. counsel for workman. The relevant portion of the Ex.MW2/M1x reads as under: ".... Aaj dinank 07.08.1993 ko 11.45 baje par aapne Shri Sandeep ji ko kaam karne se roka tatha unhen gaaliyan di va unke sath hathapai ki...." It is pertinent to note that description of alleged misconduct as produced hereinabove is not consistent with contents of para. 7 of evidence affidavit Ex.MW2/A filed by MW2 Mr. Sandeep Chaudhary. Contents of Ex.MW2/M1x, which is chargesheet as well as letter vide which workman was suspended, are not as detailed and elaborate as are the contents of para.7 of evidence affidavit Ex.MW2/A. As per Ex.MW2/M1x, Mr. Sandeep Ji was stopped from doing the work but in para. 7 of evidence affidavit Ex.MW2/A there is no deposition that Mr. Sandeep Ji was stopped from doing the work. The only depositions made in para.7 of evidence affidavit of MW2 Mr. Sandeep Chaudhary are that MW2 Mr. Sandeep Chaudhary had made an attempt to stop any confrontation between the two workers (Jagdish (Operator) and Jagdish (Helper)) Page 21 to 29 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04 operating the machines and the four workers trying to obstruct them. Then, the four workers including the workman started loudly abusing Mr. Sandeep Ji in the name of mother and father and, thereafter, workman started hitting Mr. Sandeep Ji with fists while continuing to hurl abuses. Also, it is to be noted that there is a lot of difference between simple 'hathapai' as alleged in Ex.MW2/M1x and hitting Mr. Sandeep Ji with fists as deposed in evidence affidavit Ex.M W2/A. Also, it is pertinent to note that the depositions made in para.7 of evidence affidavit Ex.MW2/A of MW2 Mr. Sandeep Chaudhary are not inconsonance with the depositions made by MW2 Mr. Sandeep Chaudhary in the course of enquiry proceedings before the enquiry officer in as much as before the enquiry officer MW2 Mr. Sandeep Chaudhary deposed as under: "Q. Jab in logon ne Jagdish (operator) ko maar peet nahin rahe they, to aap ne wahan par beech bachav karne kyon gaye they?
A. Hum ne ek naya ladka Jagdish (Helper) rakha tha jise hamare kaam ke baare mein jankari nahin thi to hum ne Jagdish (operator) se pucha ki agar hamari madad ki jarurat ho to hum madad kara sakte hain kyonki in char ladkon ne kaam karne se mana kar diya tha. Jab hum us naye ladke ke sath wah they or naye ladke se kaam karne ko kaha gaya to inhone use kaam karne se roka to us ladke tatha in ke beech bachav karne ke samay in charon ne mujhe galiyan di or hathapai ki...."
Also management witness no.2 in the course of enquiry proceedings deposed as under: "Prabandhak Gawah No.2 Jagdish Prasad Gupta suputar Shri Nageshwar Prasad Gupta niwasi C30, West Vinod Nagar, New Delhi. Main factory men Operator ka kaam karto hun. Main factory ki sari machino par kam karta hun. Mujhe machine chalne ke liye helper ki jarurat hoti hai. 07.08.1994 ko yah charon yani Satpal, Bisheshwar, Saleem or Rakesh ek karamchari Jeet Singh ko suspend karne ki wajah se tool down strike per they. Us din mere sath ek Jagdish naam ka helper tha jo ki usi din kaam par rakha tha kyonki baki sare karamchari tool down strike kar rahe they. Is charon ne jagdish naam ke naye ladke ko kaam karne se roka or kaha yah machine nahin chalayega or sh. Sandeep Ji mere paas naye helper ke bare men puchchne aaye they ki agar mujhe unki jarurat ho to wah koi madad kare, is per in charon ne Sandeep Ji ko dhakel diya or fir hathapai ki..."
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Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04
Above depositions also are not on the same lines as depositions contained in para. 7 of the evidece affidavit Ex.MW2/A of MW2 Mr. Sandeep Chaudhary. Also it is pertinent to note that MW2 Mr. Sandeep Chaudhary in his cross examination before the Court deposed that, ".... I do not remember if there was any police complaint about the incident. I had not received any physical injury. Vol. It was Pushing (Dhakka Mukki).....". But before the Enquiry Officer, MW2 Mr. Sandeep Chaudhary made following depositions: "...Q. Hathapai main app ko kahin chot aayi thi?
A. mere baju par neel pad gaya tha.
Q. kya koi chot ka medical certificate hai?
A. Nahin.
Q. Kya jhagdon ka koi FIR karaya tha?
A. Haan. Police main complaint ki thi.
Q. FIR ki copy pesh ki jaye.
A. Telephone par complaint ki thi.
Q. Kya in charon karamchariyon ko ya aap logon ko police ne thane ya
chowki le jaya gaya tha.
An. Ji Haan. Jis mein charon karamchari or mein shamil they. Hamein
police chowki ley gaye they.
Q. Kya police chowki mein koi samjhota hua tha. Yadi han to us ki copy
pesh ki jaye.
A. Nahin......"
If, as per above depositions, all the four workmen were taken to police station or chowki, MW2 Mr.Sandeep Chaudhary must have specifically deposed that they was a police complaint against the four workmen. They was no reason for him to depose that he does not remember if there was any police complaint about the incident. In the depositions before the Court MW2 Mr. Sandeep Chaudhary deposed that he had not received any physical injury whereas before the inquiry officer he deposed that he suffered 'NEEL' on his arm. In case of simple 'hathapai' there is no possibility of any body suffering 'NEEL'. Suffering a 'NEEL' is a very painful injury if not grave/very Page 23 to 29 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04 serious. Such an injury can very well be seen and be got mentioned in the medical certificate. Despite reporting the matter to the police, MW2 Mr. Sandeep Chaudhary did not get him medical examined. It is not the case here that matter stood settled between the parties and, thus, there was no need for any medical checkup of MW2 Mr. Sandeep Chaudhary.
Also somewhat inconsistent with content of para. 7 of evidence affidavit Ex. MW2/A of MW2 Mr. Sandeep Chaudhary, in crossexamination MW2 Mr. Sandeep Chaudhary deposed that, "......... At the time when the operator Jagdish was not allowed to work with the Management, persons namely Rakesh, Salim, Satpal and Bisheshwar - the present claimant only work present at spot.........".
NOW COMING TO CHARGES VIDE CHARGESHEET DATED 28.07.1993. In my considered opinion, this Court while adjudicating the reference in question can very well decide the issue as to whether workman resorted to tool down strike or not as a part of 'misconduct' on the part of workman and decision on such an issue does not involve the issue of legality / illegality of the strike as contemplated item no. 5 of the SECOND SCHEDULE to the Industrial Disputes Act, 1947. Here workman is nowhere admitting that he resorted to strike. The question of reference in terms of item no. 5 of the SECOND SCHEDULE to the Industrial Disputes Act, 1947 would arise where admittedly there is a strike / lockout and its legality / illegality, as such, is to be decided and not otherwise.
Management is relying upon undertakings Ex.MW2/12 (two pages) given by the workman on 29.07.1993. The said undertaking as the facts suggest must have been prepared at the instance of management and it was got signed from the workman. In these undertakings there is no mention at all or admission by the workman that he had Page 24 to 29 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04 resorted to tool down strike. Also, chargesheet dated 28.07.1993 as well as chargesheeet dated 07.08.1993 were issued under the signatures of Mr. Viresh Kumar Tyagi but management has not made any attempts whatsoever to examine him as witness to support the charges against the workman. The specific circumstances under which workman was asked to sign the undertakings Ex.MW2/12 are also not mentioned in Ex.MW2/12. In para. 6 of evidence affidavit MW2/A of MW2 it is mentioned that workman had given undertakings of not going on any strike. However, careful perusal of said undertakings Ex.MW2/12 reveals that, as such, no such undertakings were given by the workman. When there are material variances, as discussed above, in the stand of the management regarding the alleged incident dated 07.08.1993, the possibility of management falsely alleging regarding tool down strike cannot be altogether ruled out. Management has not led evidence about the losses, if any, suffered by it on account of alleged tool down strike by the striking workmen as mentioned in Ex.MW2/10 or what are alternative arrangements were made by management against the striking workmen. Also, management has not even attempted to examine any of the nonstriking workmen to prove the alleged tool down strike by the workman in as much as in all possibility management must be possessing last one addresses of such workmen even if management has closed down its factory.
In view of above detailed discussion, in my considered opinion, management can be said to have failed to prove the charges vide chargesheets dated 28.07.1993 or letter dated 07.08.1993 Ex. MW2/M1x against the workman even on the basis of principle of preponderance of probabilities. Even this principle requires that there has to be some positive / specific / cogent evidence from which inference as to misconduct on the part of the workman can be drawn. When there are vital variances in the depositions of MWs (i.e. Mr. Viresh Kumar Tyagi appearing before Enquiry Officer and Mr. Sandeep Page 25 to 29 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04 Chaudhary appearing as witness to prove misconduct before the Court) such positive / specific / cogent evidence cannot be said to be existing. Even in the application of principle of preponderance of probabilities conjectures / speculations / surmises have no place / role to play. Misconduct on the part of workman is to be proved by cogent / convincing evidence. When management has failed to prove charges against the workman, termination of services of workman by the management is bound to be declared as illegal and unjustified.
ORDERED ACCORDINGLY.
ISSUE : Relief NOW QUESTION ARISES AS TO WHAT RELIEF DESERVES TO BE GRANTED TO THE WORKMAN IN VIEW OF ABOVE FINDING AS TO THE ILLEGAL / UNJUSTIFIED TERMINATION OF HIS SERVICES BY THE MANAGEMENT. While dealing with issue no.1, this Court has observed that management has closed its factory / manufacturing activities w.e.f. 31.01.1997. Thus, question of reinstatement of workman does not at all arises. Workman while appearing as WW1/R1 Mr. Bisheshwar Prasad deposed that, " ...... It is wrong to suggest that I am gainfully employed. Since my dismissal I have not been able to find any alternate employment. My family comprises of my wife and two sons and two daughters. My wife and daughters live in my village in Distt Aara, Bihar. I stay in Delhi with my sons. I have my own house in village. I do not have agricultural land. I have two cows and buffalows. My elder son runs a television shop alongwith my nephew and my younger son does a private job. The income of my two sons helps me bears the expenditure of my family including me. The shop was established in 1995 - 1996 since then my elder son is bearing the expenditure of myself and my family from the income he draws from the shop. My family Page 26 to 29 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04 monthly expenditure is around Rs.5000 to 6000/. It is correct that the claimant Sh. Sudeshwar Prasad in ID No. 04/04 is my real brother. It is wrong to suggest that I have repeatedly refused the offers of the management to settle during the course of the enquiry proceedings as well as in court which also shows that I am gainfully employed. It is wrong to suggest that I am running the T V shop in the name of my son..".
Workman Sudeshwar Prasad in ID No. 04/04 had deposed that age of his son as on the date of recording of his evidence (i.e. on 20.09.2012) was around 28 years. Thus, age of his son in the year 1995 - 1996 when the shop was established comes out to be 11
- 12 years. It is highly improbable that any child of the age of 11 - 12 years can run a television shop. As deposed above elder son of workman herein is running a television shop alongwith his nephew (i.e. son of Mr. Sudeshwar Prasad). The preponderance of probabilities in the facts and circumstances of this case suggest that shop might have been opened by workman after termination of his services by the management. Thus, it is not the case here that workman remained unemployed after termination of his services. Even after termination of his services by the management, workman was, admittedly, able to meet out his expenses and that of his family from the abovesaid shop. At this juncture, it would be appropriate to refer to observations made by Hon'ble Supreme Court of India in case law reported as Novartis India Ltd. Vs. State of West Bengal and Ors. JT 2008(13) SC12 in the following terms: "30. Even if some income was derived by the employee, the same should be taken into for consideration for the purpose of consideration in regard to grant of entire back wages. Our attention has been drawn to a decision of the Bombay High Court in Navin J. Surti V. Modi Rubber Ltd. and Anr. 2004 II CLR 46 wherein it was observed:
Eventually, there would be a burden case upon the employee to disclose the efforts made by him to secure another job during the time he was out of employment on account of termination of the service, in order Page 27 to 29 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04 to justify the claim for the back wages in its entirety. Indeed, the Division Bench in Sadanand Patankar's case (supra) has clearly ruled that "Since the facts about the employment or nonemployment and/or the efforts made or not made to secure an alternative employment during the period of enforced idleness are within the special knowledge of the employee, it is only fair and proper that he should first state whether, he was employed or not and during what period, the amount of income earned by him if any, the nature of efforts made by him for securing alternate employment or the circumstances which prevented him from making such efforts." It has also been clearly held that once such burden is discharged by the employee, it would be for the employer to prove facts to the contrary. Similarly is the decision of the learned Single Judge, as he then was (Sri Justice B. N. Srikrishna), in Indiana Engineering Works (Bombay) Pvt. Ltd. v. The Presiding Officer 5th Labour Court and Ors. 1995 (II) C.L. R. 890 where it has been clearly held that "I am of the considered view that the dismissed workman also owes a duty to the industrial adjudicator to honestly disclose full particulars of the facts which are purely within his knowledge and that any attempt to mislead the Tribunal must surely be looked at askance, It was furthermore observed:
Apart from the obligation on the part of the employer to establish gainful employment of the employee during such period, it would also be necessary for the employee to disclose the efforts made by him to get. some other job or employment during such period as well as about the source of income during the said period and it so, to what extent. Mere silence on the part of the employee in that regard cannot, in any manner, enure to the benefit of the employee to justify the claim for back wages in entirety. It cannot be forgotten that the order for payment of back wages has to be from the point of view of compensating the employee for the loss suffered during the time he was out of the employment and not a reward for having succeeded in establishing the action of termination of the service by the employer to be illegal."
It is also to be kept in mind workman is entitled, to such back wages only upto
31.01.1997 since the date of illegal termination of his services w.e.f. 26.04.1994 and on Page 28 to 29 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Bisheshwar Prasad Vs. M/s. Sunil Wires Industries (P) Ltd. ID No. 598/04 31.01.1997 workman was entitled to receive compensation under section 25 F F F of the Industrial Disputes Act, 1947 on account of closure of factory of management. When so understood / guided, in my opinion, in the totality of facts and circumstances of case, grant of lump sum compensation to the tune of Rs.3,50,000/ (Rupees Three Lacs and Fifty Thousand only) to the workman from the management for illegal / unjustified termination of his services would meet the ends of justice. If this amount of Rs. 3,50,000/ (Rupees Three Lacs and Fifty Thousand only) is not paid to workman within one month of publication of this award, management shall be liable to pay interest @ 9% per annum on this amount from the date of the award till its payment. A sum of Rs. 25,000/ (Rupees Twenty Five Thousand only) is also awarded to workman as costs of litigation payable by the management.
10. Reference is answered accordingly.
11. A copy of the award be sent to the concerned Office of the Deputy Labour Commissioner for further necessary action.
12. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 20.02.2014
(ANAND SWAROOP AGGARWAL)
POLCXI, Karkardooma Courts, Delhi
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