Delhi District Court
Dileep Kr. Dwivedi And Fourteen Ors vs M/S Jagran Prakashan Ltd on 18 March, 2024
DLCT130064862016
IN THE COURT OF SH. AJAY GOEL:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I,
ROUSE AVENUE DISTRICT COURTS, NEW DELHI.
Ref. No. F.24(68)/DLC/NDD/16/695
Dated 12.05.2016
POIT No. 1058/2016
Workmen
S/S. Dileep Kumar Dwivedi & 14 Ors.,
Through Sh. Vinod Kumar Pandey,
109, LGF, World Trade Centre,
Babar Road, Connaught Place,
New Delhi-110001
Vs.
The Management of
M/s Jagran Prakashan Ltd,
at 501, INS Building Rafi Marg,
New Delhi-01.
Date of institution : 18.05.2016
Date of presentation : 15.03.2023
before this court
Date of reserving award : 16.03.2024
Date of award : 18.03.2024
AWAR D
1. Labour Department, Govt. of the National Capital
Territory of Delhi has referred this dispute arising between
the parties named above for adjudication to this Tribunal with
POIT No. 1058/16 Page No. 1 of 44
DLCT130064862016
following terms of the reference:-
"Whether the services of S/Sh. Dileep Kumar
Dwivedi & 14 Others whose details have been
given in Annexure 'A' have been terminated
illegally and/or unjustifiably by the management,
and if so, to what relief are they entitled and what
directions are necessary in this respect"?
2. Statement of claim has been filed by the
claimants/workmen, whose particulars are given below:
Sr. Name Initial (Post) DOJ Date of
No. Termination
1 Dileep Kumar Dwivedi System 01.07.2005 03.09.15
Engineer
2 Mr. Pardeep Kumar Singh Junior Reporter 01.01.2001 03.09.15
3 Mr. Lalit Mohan Bisht Trainee in 10.03.2004 03.09.15
General Depptt.
4 Mr. Pradeep Kumar Tiwari Trainee 01.11.2002 03.09.15
5 Mr. Brij Kishor Yadav Electrician 01.07.1990 03.09.15
6 Mr. Harish Singh Trainee 19.09.2007 03.09.15
machine
7 Mr. Ravindra Pal Singh Maintenance 18.12.2000 03.09.15
Fitter
8 Mr. Narveer Singh Electrician 16.01.1997 03.09.15
9 Mr. Chakrapani Pathak Unit Helper 15.10.1992 03.09.15
10 Mr. Ratan Bhushan Prasad Sub Editor 04.10.2000 03.09.15
Singh
11 Mr. Ramesh Singh Jr. Receptionist 25.06.2007 03.09.15
12 Mr. Manoj Biswal Trainee 16.01.1996 03.09.15
POIT No. 1058/16 Page No. 2 of 44
DLCT130064862016
13 Mr. Isht Deo Sankrityaayan Sr. Sub Editor 20.03.2002 03.09.15
14 Mr. Vivek Tyagi Sub-Editor 02.06.2007 03.09.15
15 Mr. Samir Biswas Chief Visualizer 12.10.2007 03.09.15
3. Statement of claim has been filed on behalf of
aforementioned workmen challenging the impugned order
dated 03.09.2015 passed by the management, whereby
services of the workmen have been terminated by
management on the alleged ground of insubordination. It is
respectfully submitted that the termination order of the
workmen is a illegal, arbitrary, unconstitutional, mala-fide
and in violations of the principals of Natural justice and the
provisions of the Industrial dispute Acts, 1947 and The
Working Journalists and Other Newspaper Employees
(Conditions of Service) and Miscellaneous Provisions Act,
1955 (45 of 1955) & the certified Standing order/s.
4. That the management, are a newspaper establishment having
its Central office at New Delhi and publishing its Hindi
newspaper 'Dainik Jagran in and around Delhi NCR. That the
workmen/applicants were employee of the management till
03.09.15 when they were illegally terminated from services
vide letter dated 03.09.15. That vide order dated 07.02.2014
passed by Hon'ble Supreme Court of India, in W.P.(C)
POIT No. 1058/16 Page No. 3 of 44
DLCT130064862016
No.546/2011, have been directed to pay revised wages as per
recommendations made by Majithia Wages Board Along with
arrears of wages since 11.11.2011 and the workmen on
09.06.14 served a notice to the management and issued a
demand notice to implement the recommendations made by
Majithia Wages Board along with arrears of wages since
11.11.2011. Thereafter on 02.02.15 the Management issued a
notice to the workman Ratan Bhushan Prasad Singh thereby
transferring him to Kanpur which led to meetings between
the Management and the workmen, wherein the workmen
were threatened with consequences. When the workmen did
not relent in their demands, on 02.02.15 the Management
sought to transfer some of the workmen. On 07.02.15 after
negotiations the transfers were recalled and the workmen
were assured that they shall not be acted against. It is further
the case of the workmen that on 07.02.15 the Chief General
Manager, Shri Neetendra Srivastava sent a mail to one of the
key workmen who now stands dismissed from service, no
transfer of the workmen who have filed the contempt case
shall be done and those transferred shall be taken back and
on 06.05.15 the workmen came together and formed a Trade
Union under great opposition from the Management before
the Labour Commissioner. Thereafter, on 20.05.15 the Trade
Union sent a letter no. 7/15 to the Deputy Labour
commissioner with a copy to the management apprising the
POIT No. 1058/16 Page No. 4 of 44
DLCT130064862016
the Deputy Labour Commissioner about conduct of the
Management with regard to pressurizing the workmen and
trying to falsely implicate them after filing of the contempt
petition & further failing to implement the wage board
recommendations. They on 26.05.15 further informed the
Deputy Labour Commissioner that those who filed the
contempt have been deprived of annual increments and
promotions by the Management. Thereafter, on 25.05.15 one
of the workmen namely, Ratan Bhushan Prasad Singh was
issued a charge-sheet by the Management inter alia on the
ground that on 19.05.14 he committed an act of
insubordination. The Deputy Labour Commissioner, Noida,
issued a notice to the Management/Chief General Manager
Shri Neetendra Srivastava, to answer the charge on 04.06.15.
On 08.06.15 the workmen made another representation
demanding implementation of the Wage Board
Recommendation. Thereafter on 10.08.2015 a lawyer of
management issued a notice to the workmen Ratan Bhushan
to join the inquiry proceedings on 18.08.15. Thereafter, the
Management issued show cause notices dated 25.08.15 to the
present workmen, allegations therein were denied by the
workmen vide reply dated 28.08.15.
5. On 03.09.15, the services of 16 workmen were terminated by
Shri Neetendra Srivastava, the Chief General Manager, New
Delhi, without inquiry on the alleged ground of
POIT No. 1058/16 Page No. 5 of 44
DLCT130064862016
insubordination, even though according to the Management
42 persons committed the acts of violation, but were not
prosecuted.
6. That the workmen filed writ petition No. 53545 of 2015
before Hon'ble High Court of Judicature at Allahabad
challenging the termination order dated 03.09.2015, which
was dismissed vide order dated 17.09.2015 on the ground
that the workmen have a alternate remedy before labour
court. Thereafter the workmen filed claim u/s 10 of the I.D.
Act for conciliation,but same has failed, hence, this
reference. It is the case of the workmen that management has
terminated the services of the workmen with malafide
intention which is in violation of Section 33 of I.D. Act, 1947
and further prayed to set aside the impugned illegal
termination order dated 03.09.2015 and sought direction to
the management to reinstate the workmen with all
consequential benefits with full back wages.
7. Written statement filed by the management, wherein
objections have been taken that the management is a
newspaper establishment and is engaged in the business of
printing and publication of Newspaper in the name and style
of 'Dainik Jagran' situated at D-210, 211 Sector-63, Noida,
Gautam Budh Nagar, Ghaziabad and Delhi. In addition to
printing and publication of News Paper the respondent are
engaged in other businesses also like electronic media and
POIT No. 1058/16 Page No. 6 of 44
DLCT130064862016
news portal. Respondent are also running their official news
website www.jagran.com. The employee working for
electronic media, web portal and website have no connection
with the working o newspaper and the printing press for the
purposes printing of Newspaper is situated at D-210, 211,
Sector 63, Noida. Being a newspaper industry provisions of
"Working Journalists and Other Newspaper Employees
(Conditions of Service) and Miscellaneous Provisions Act,
1955 (Act of 45 of 1955) are applicable on the establishment.
The said Act is special act.
8. It is further contended that other businesses as mentioned
above are also operated from the same building premises,
situated on above mentioned address and are not part of
respondent's News Paper establishment. Workmen were
working with the respondent in their Noida office and their
services were terminated on 03.09.2015 for serious
misconduct and anti -organizational activities and also for
loss of confidence, due to the grave misconduct of strike
cessation of work, illegal strike anti- organizational slogans
and making captive to Chief General Manager of Noida
establishment for more than two hours. Whatever cause of
action arose that arose in the establishment of U.P. at Noida
and the tribunal has no and this Territorial Jurisdiction to
adjudicate and decide the present dispute under reference. It
is further contended that the workmen engaged in Dharna
POIT No. 1058/16 Page No. 7 of 44
DLCT130064862016
Pradarshan Gherao and made captive to Chief General
Manager Noida in his office for more than two hours and on
the complaint dated 24/8/2015 of Sh. Pradeep Singh, Dy.
Labour Commissioner Noida had initiated conciliation
proceedings. Thereafter, Management of Noida on
25.08.2015, issued show cause notices for serious
misconducts to 43 persons and other employees of Noida unit
seeking explanation of their conduct, which is also reported
with the police of P.S. Noida Phase-III and accordingly on
26.08.2015, FIR No. 896 of 2015 u/s 147, 342, 452 IPC was
duly registered. The workmen filed their reply, but
management being dissatisfied, the management terminated
their services vide termination order dated 03.09.2015 for
serious misconducts and anti-organizational activities and
also for loss of confidence as committed by them. It is further
contended that out of forty three employees to whom show
cause was given, management had taken decision to
terminate the services of sixteen employees.
9. It is further contended that the order dated 27.05.2016 of
authority of K.G Marge was challenged by the workmen by
way of writ petition no. 5606/2016, which was disposed of
vide order dated 14.12.2017 holding as under:
"The respondent/applicant herein have decided that
they are ready to file their cases before DLC Noida,
UP in order to prevent further delay and have no
objection if the main petition is disposed off with a
POIT No. 1058/16 Page No. 8 of 44
DLCT130064862016
direction that the cases pending before DLC, Delhi
to be transferred to DLC, Noida or in the
alternative cases filed at Delhi be returned for re-
filling at DLC, Noida." Said application is annexed
herein as annexure X"
10. It is further contended that the cause of the workmen has not
been espoused by the Union or that same does not fall in the
definition of Industrial dispute or that the claim of the
workmen is different and cannot be adjudicated in one
reference. Rest of the contentions of the statement of claim
more or less are denied.
11. Rejoinder has been filed by the workmen, wherein all
objections raised in the preliminary objections have been
denied and the contentions made in the statement of claim are
reiterated and affirmed.
12. On the basis of pleadings of the parties, following issues
were framed by Ld. Predecessor vide order dated
07.03.2009:-
"(i) Whether this tribunal does not have the
territorial jurisdiction to try and adjudicate upon
the instant dispute as alleged by the Management?
OPM
(ii) As per terms of reference. OPW
(iii) Relief.
13. To prove their case, workmen examined Sh. Dileep Kumar,
Lalit Mohan Bisht, Sh. Pradeep Kumar Tiwari, Sh. Brij
Kishore Yadav, Sh. Harish Singh, Sh. Ravindra Pal Singh,
POIT No. 1058/16 Page No. 9 of 44
DLCT130064862016
Sh. Narveer Singh, Sh. Chakrapani Pathak, Sh. Ratan
Bhushan, Sh. Ramesh Singh, Sh. Manoj Biswal, Sh. Isht Deo
Sankrityaayan, Sh. Vivek Tyagi as WW1 to WW-13. They all
tendered their evidence by way of affidavits Ex.WW1/A to
Ex. WW13/A in which they have affirmed the contents of the
statement of claim. They have also relied upon certain
documents. They also cross-examined by ld. AR for the
management. Thereafter workmen evidence was closed.
14. To prove its case, management examined Sh. Vijay Singh
Sengar, Sh. Jitender Kumar meena, Sh. Neetendra Srivastava
and Sh. Devanand Kumar as MW1 to Ex. MW-4. They all
tendered their evidence by way of affidavits Ex.MW1/A to
Ex. MW4/A in which they have affirmed the contents of the
written statement and relied upon certain documents. They all
were duly cross-examined by the ld. AR for the workmen.
Thereafter, ME was closed and matter was posted for final
arguments.
15. Final arguments have been heard at length as advanced by
both parties.
16. I have gone through the entire records of the case including
pleadings of the parties, evidence led and documents proved
during evidence.
17. My issue wise findings are:-
18. Though in this case management has raised issue of espousal.
However, it is matter of record that present case pertains to
POIT No. 1058/16 Page No. 10 of 44
DLCT130064862016
termination of the number of workman from their services
and in the cases pertaining to termination of multiple
workmen, there is no requirement to look into the issue of
espousal.
Issue no.1:
(i) Whether this tribunal does not have the
territorial jurisdiction to try and adjudicate upon
the instant dispute as alleged by the Management?
OPM
19. The workman has pleaded that the jurisdiction lies before this
tribunal as the Central office of the management is situated in
Delhi which is the governing/decision making body of the
management for its all branch offices, including its Noida
Office. It is further contended that ultimately the salary of the
workmen were also coming from its head office which is
situated in Delhi.
20. On the other hand, the management has disputed the same
and contended that the workmen were never engaged/worked
in Delhi Office during their entire tenure. Their appointment
as well as their termination letters were also issued by the
Noida office of the management. Therefore, the cause of
action, if any arose in Noida, UP. The management has
placed reliance upon the judgment of Jagran Prakash Ltd. v.
Govt. of NCT of Delhi & Ors. WPC no. 5606/2016 wherein
the Hon'ble High Court of Delhi vide order dated 14.12.2017
POIT No. 1058/16 Page No. 11 of 44
DLCT130064862016
disposed of the matter on the issue territorial jurisdiction
with the following directions:
"5.In view of the submissions of learned counsel for
the parties, the order dated 27.05.2016 is set aside with
the liberty to respondent Nos. 2 to 200 to move an
appropriate application before the Deputy Labour
Commissioner, Noida/appropriate authority, as prayed,
subject to all remedies and defences which are
available to the petitioner including jurisdiction, as per
law."
21. This tribunal has gone through the aforesaid order of the
Hon'ble High Court of Delhi. The bare perusal of the order
suggests that the same has not been passed on the merits of
case, but instead it is the workers who chose to withdraw
their writ petition with the liberty to file a fresh before the
appropriate authority. i.e. Noida. Attention of this tribunal
has further been drawn towards the subsequent development
in the aforesaid case, wherein a clarification has been moved
on behalf of the applicant for clarification of the order dated
14.12.2017 which reads as under:
1. The instant application under Section 151 of the
Code of Civil Procedure, 1908 has been filed on
behalf of applicant/respondent No.179 seeking the
following reliefs:-
"A. Clarify the order dated 14.12.2017 that the
term "NOIDA/Appropriate Authority" does not
exclude the territorial jurisdiction of Delhi i.e.
clarification to the extent that Appropriate
Authority means all Appropriate Authorities
including the Delhi Authority in the interest of
POIT No. 1058/16 Page No. 12 of 44
DLCT130064862016
justice.B. Pass such other orders as may be
deemed appropriate."
2. Heard.
3. On filing PF within a week, issue notice to the non-
applicants through all permissible modes, returnable
on 30thApril, 2024."
22. As per the aforesaid order no concrete finding has come out
with respect to the territorial jurisdiction Therefore, the
management's reliance upon the aforesaid case to show that
the workmen do not have territorial jurisdiction in Delhi to
raise an industrial dispute is misplaced due to two reasons
firstly the aforesaid order was not decided on merits and
secondly a clarification of the said order is still pending.
23. Further as far as the territorial jurisdiction is concerned, the
initial appointment and termination is not the only criteria,
this tribunal has to see whether the workmen also made to
work in Delhi office of the management as well. The cross-
examination of the management witness MW-1 factually
clears the said picture. MW-1 has admitted that the
management has multiple offices in Delhi and publication of
newspaper also takes place in New Delhi. Even though the
witness has stated that the workmen were employed in Noida
and the printing and technical staff were working in Noida,
however, the computer staff used to go to work in various
offices in Delhi and NCR. Therefore, when the workmen
have been working in various offices of the management in
POIT No. 1058/16 Page No. 13 of 44
DLCT130064862016
Delhi NCR, hence, it cannot be said that their functioning is
only limited to Noida Offices.
24. Ld. AR for the management has relied upon case law titled as
V.G. Jagdishan v. M/s Indofos Industries Ltd., Special
Leave Petition (c) 12511 of 2016, wherein the Hon'ble
Supreme Court has observed that:
"3.1 The Labour Court vide award dated
18.04.2006 held the preliminary issue in favour
of the management and held that the Labour
Court at Delhi has no territorial jurisdiction to
decide the case/complaint/reference. The Labour
Court held that merely because the Corporate
Office of the management was at Delhi the same
will not vest the Labour Court, Delhi with
territorial jurisdiction. The Labour Court held
that as the cause of action has arisen at
Ghaziabad, the Court at Ghaziabad alone had
the jurisdiction to try the case.
3.2 Feeling aggrieved and dissatisfied with the
award/order passed by the Labour Court holding
that the Labour Court, Delhi has no territorial
jurisdiction to try the case, the workman
preferred the writ petition before the learned
Single Judge of the High Court. The learned
Single Judge dismissed the said writ petition vide
order dated 09.04.2015. The Letters Patent
Appeal (LPA) against the order passed by the
learned Single Judge has been dismissed by the
Division Bench of the High Court by the
impugned judgment and order. Hence, the
workman has preferred the present appeal."
POIT No. 1058/16 Page No. 14 of 44
DLCT130064862016
25. On the other hand, Ld. AR for the workman has pleaded that
the jurisdiction lies before this tribunal as the workman was
reporting with the office in Delhi. Ld. AR for the workman
has relied upon case titled as Business Bhaskar Newspaper
v. Government of NCT of Delhi & Ors., W.P. (C) 8550/2018,
wherein it has been held that:
"32. By applying the cause of action test, in the
opinion of this Court, it cannot be held that the
reference by GNCTD is fallacious or the Labour
Courts in Delhi do not have jurisdiction to
adjudicate the dispute.
33. Moreover, the decision in Braham Prakash v.
GNCTD 2008 (2) SLR 624 which is sought to be
relied upon by the Management would not be
directly applicable in the present case as the said
case relates to a case of termination. Interestingly,
in Brahm Prakash (supra), both the decision of
Bikash Bhusan Ghosh (supra) and Paritosh Kumar
Pal (supra) are dealt with in detail. Brief facts of
the case in Brahma Prakash are that the Workman
was transferred by the Management to Rajasthan on
1st July, 1999. A criminal complaint was filed
against the Workman for stealing iron scrap and he
had to go to jail. Upon being released on bail in
2001, when he reached the said office to resume
duty, the Management refused to allow him to join
and terminated his services on 17th July 2001. It
was in this factual background that the Court held
that the situs of the employment of the Workman at
the time of termination was at Rajasthan and the
Courts at Delhi cannot entertain reference on the
ground that the head office of the Respondent
Management was in Delhi or that the PF et cetera
was being deposited in Delhi. The Court in
POIT No. 1058/16 Page No. 15 of 44
DLCT130064862016
categorical terms held that since the cause of action
which constituted an infringement of the rights of
the Workman arose at Rajasthan where he was last
employed. It was in these facts and circumstances,
the Court held that the situs of employment was
where the Workman was last employed. In any
event, the Court in the said decision also applied
the cause of action test to hold that violation of the
rights of the Workman took place in Rajasthan and
thus came to the conclusion that the Labour Court
in Rajasthan would have territorial jurisdiction to
adjudicate the matter. The relevant portion of the
judgment is set out below:
"14. Taking note of the facts and circumstances of
the present case, undoubtedly, the situs of the
employment of the petitioner workman at the time of
termination of his services was at Neemrana,
Rajasthan. Thus, the subject matter of the dispute
substantially arose in the State of Rajasthan.
Consequently, it has to be held that as the
immediate occasion which resulted in the alleged
infraction of the rights of the petitioner workman
occurred in the State of Rajasthan, the courts in
Delhi cannot be vested with territorial jurisdiction
on the allegation that the head office of the
respondent management is in Delhi or that the PF
etc. was being deposited in Delhi or even that the
Directors of the respondent management are
residing in Delhi. In other words, by sifting out the
extraneous factors on which the petitioner workman
sought to place emphasis, there is only one
conclusion that can be arrived at, which is that in
the facts and circumstances of the present case, the
cause of action which constituted an infringement
of the rights of the petitioner workman arose at
Rajasthan where he was lastly employed."
POIT No. 1058/16 Page No. 16 of 44
DLCT130064862016
34. The situs test sought to be relied upon by the
Management actually, in the opinion of this Court,
points towards Delhi as the situs of the employment
of the Workmen in the present dispute because a
substantial portion of the dispute relates to the
service period of the Workmen in Delhi.
Thus, the reliance of Management on the dictum of
Brahma Prakash (supra) to argue that the
Government of NCT of Delhi did not have power to
refer the matter for adjudication is misplaced.
Considering that out of a period of 31 months for
23 months journalists concerned were posted in
Delhi even by applying the situs test the Labour
Courts in Delhi would have jurisdiction and the
GNCTD would have power to refer the dispute for
adjudication.
35. Rule 36 of the Working Journalists Rules is very
clear to the effect that complaint under Section 17
of the Working Journalists Act would be liable to be
filed in the Central office or the Branch office of the
newspaper establishment in which the Workmen is
situated. This Rule does not oust the jurisdiction of
the State Government emanating from the well-
established principle of labour law which
determines the State Government for the purpose of
making a reference. Moreover, the situs test and the
test of cause of action cannot be held to be
contradictory in nature. In fact, they complement
each other and should be applied conjunctively. The
Supreme Court while interpreting Rule 36 in
Samarjit Ghosh v. Bennett Coleman And Co. & Anr.
1987 (3) SCC 507 has observed that the said Rule
36 should be interpreted in favour of the Workmen.
Rule 36 of the Working Journalists Rules would,
POIT No. 1058/16 Page No. 17 of 44
DLCT130064862016
therefore, have to be read as creating additional
forum of either the Central office including the
office of the Management where the Workman is
employed for the relevant period qua which the
claim is made under Section 17 of the Working
Journalists Act. Such a Branch Office of the
establishment cannot be excluded from the
applicability of Rule 36 simply because the
Workman may have been transferred to another
Branch Office in another State.
36. The Newspaper/Management in the present case
has offices across the country and one of their main
offices is in Delhi as is evident from the affidavit
filed by Mr. Sachin Gupta, the legal head of the
Management who is stated to be working from the
office of Management at 207, Aakashdeep Building,
Barakhamba Road, New Delhi- 110001. The cause
of action and the direct nexus test, under such
circumstances, also apply to the present case in
terms of the judgment of Supreme Court in Bhushan
Ghosh v. Novartis India Ltd. [2007] 5 SCC 591
wherein the Supreme Court has clearly held that the
place where the part of cause of action arises would
also be the State Government which would have the
jurisdiction under the Industrial Disputes Act, 1947
and therefore under the Working Journalists Act.
37. As far as the Workmen/Respondent Nos. 7,8,9,11
and 13 are concerned, the plea of the Management
is that the Labour Court having jurisdiction would
be the Court located in the South Delhi District and
not the Labour Court in the Central Delhi District.
Insofar as the issue relating to the two Labour
Courts within Delhi is concerned, this Court has
repeatedly emphasised that the delineation between
the civil Courts in various Districts within Delhi
POIT No. 1058/16 Page No. 18 of 44
DLCT130064862016
cannot be treated in a water tight manner. In
Rakesh Sharma v. Bhuvneshwar Dayal, Tr.P.(C)
33/2020 decided on 9th April 2021 & Advance
Magazine Publishers Inc. v. Bombay Rayon Fashion
Ltd., Tr.P.(C) 39/2020 decided on 29th September
2020 this Court has held that the Court in a
different district would not be completely denuded
of jurisdiction to adjudicate matters, owing to the
unique and staggered manner in which the courts in
different districts were created. Furthermore,
sometimes there is confusion within Delhi as to in
which District Court or the Labour Court a
particular dispute would be liable to be entertained.
In view of this, insofar as Workmen/Respondent
Nos. 7,8,9,11 and 13 are concerned, following the
orders passed in Rakesh Sharma (supra) & Advance
Magazine (supra), the plea relating to jurisdiction
is rejected.
38. By applying both the situs test as also the test of
cause of action, this Court further holds that the
Labour Courts in Delhi would have the jurisdiction
to entertain the present claims qua Respondent Nos.
4-15. Accordingly, the issue is decided in favour of
the Workmen."
26. This Tribunal has gone through the case law tittled as V.G.
Jagdishan (supra) relied upon by the management as well as
the case law titled as Business Bhaskar Newspaper (supra)
by the Ld. AR for the workman. The case law tittled as V.G.
Jagdishan (supra) relied upon by the management is of no
help to the case of the management as in this case the
workman was employed in Ghaziabad and was working in
POIT No. 1058/16 Page No. 19 of 44
DLCT130064862016
Ghazaibad and his services were retrenched in Ghaziabad.
Thus, the cause of action arose in Ghaziabad only. However,
in the present case the workman prior to his termination was
given incharge of Delhi NCR. Whereas in the case of law
titled as Business Bhaskar Newspaper (supra) the Hon'ble
High Court of Delhi applying the cause of action and situs of
the employment test held that where the workman was lastly
posted at time of his termination, would be the jurisdiction
under the Industrial Disputes Act, 1947. The judgment of
Hon'ble Supreme Court in these circumstances is not
applicable in the facts as stated above because if the
workman whole cause of action as was in that case had arisen
within the jurisdiction of Noida, then the jurisdiction of this
court would be ousted. The judgment of Hon'ble High Court
of Delhi in Business Bhaskar (supra) is clear as it is dealing
the facts and the law on the point of jurisdiction, elaborately.
The facts of the present case and the case of Business
Bhaskar (supra) are almost similar and court has to see
whether whole cause of action arisen in Noida or part cause
of action has arisen in Delhi. Keeping in view the existence
of availability of office of management in Delhi as well as
the working conditions of the workman, it is crystal clear that
cause of action has partly arisen in Delhi also. In the
judgment of Business Bhaskar, the Hon'ble High Court of
Delhi has dealt with number of cases and has explained as to
POIT No. 1058/16 Page No. 20 of 44
DLCT130064862016
how the question of jurisdiction is to be decided. One
judgment of Hon'ble Supreme Court in Vikas Bhushan Ghos,
Braham Prakash and Paritosh Kumar Paul were discussed
with respect to issues in question and came to the conclusion
that if the portion of the dispute relates to the service period
of the workman pertaining to Delhi, then that court will be
having jurisdiction. The Hon'ble High Court of Delhi has
also relied upon two case laws titled as Rakesh Sharma v.
Bhubneshwar Dayal and Advance Magazine Publisher v.
Bombay Rayon Fashion Ltd. observed that court in a
different district would not be completely denuded of
jurisdiction to adjudicate matters if part cause of action is
shown to be arisen in Delhi.
27. In the case of Raj Kumar Jaiswal v. Rangi International
Pvt. Ltd, CM (M) 1337/2007 decided on 27.10.2009 Hon'ble
High Court of Delhi has also dealt with the jurisdiction issue
as far as the Delhi NCR is concerned which reads as under:
"11. Besides the aforesaid, I am otherwise also of
the view that the industrial dispute arises at the
place where the employer is exercising effective
control. The state government having jurisdiction
over the place from which the employer exercises
effective control would have jurisdiction to make
the reference under Section 2 of the Industrial
Disputes Act. In the present case, the registered
office of the respondent company is at Delhi and
prima facie the effective control would be at Delhi.
Nothing has been shown otherwise that there was a
POIT No. 1058/16 Page No. 21 of 44
DLCT130064862016
separate establishment at Gurgaon; only if a
separate establishment had been proved could the
dispute be said to have arisen at Gurgaon. Reliance
in this regard can be placed on Workmen of Shri
Rangavilas Motors (P) Ltd. Vs. Shri Rangavilas
Motors (P) Ltd. MANU/SC/0237/1967. The
Supreme Court again in Bikas Bhushan Ghosh Vs.
Novartis India Ltd. MANU/SC/7351/2007 has also
laid down the test of part of the cause of action and
held that even if a part of cause of action in the
industrial dispute arises within the state, than that
state will have jurisdiction to make a reference
despite the fact that other states also have
jurisdiction to make a reference. The petitioner in
the present case has spent major time of his
employment with the respondent at Delhi and for
this reason also I am of the view that the reference
was correctly made to the Labour Court at Delhi.
12. Above all, the Industrial Dispute Act is a social
welfare legislation. Today the boundaries between
Delhi and Gurgaon have disappeared. No prejudice
has been shown to be caused to the respondent
company by continuation of the proceedings in the
Labour Court at Delhi. On the contrary, if the
proceedings which have been underway for long
and in which the respondent has participated
without objection, are terminated and the petitioner
directed to approach the authorities at Gurgaon, his
sufferance would be insurmountable."
28. In view of my aforementioned discussion, findings and
mandate of law applied in Raj Kumar Jaiswal (supra) and
Business Bhaskar (supra), this tribunal holds that the Govt.
of NCT of Delhi is the appropriate government to refer the
POIT No. 1058/16 Page No. 22 of 44
DLCT130064862016
instant dispute for adjudication and disposal in accordance
with law and further that this Court has the territorial
jurisdiction to try and adjudicate upon the instant matter as
part of cause of action has arisen within the jurisdiction of
this court. Hence, these issues are decided in favour of the
workmen and against the management.
Issue no. 2:
As per Terms of reference.
"Whether the services of S/Sh. Dileep Kumar
Dwivedi & 14 Others whose details have been
given in Annexure 'A' have been terminated
illegally and/or unjustifiably by the management,
and if so, to what relief are they entitled and what
directions are necessary in this respect"?
29. It is contended by the ld. A.R. for the workmen that the
services of the workmen have been illegally terminated by
the management in utter disregard of the principles of natural
justice as no inquiry whatsoever was conducted prior to their
termination. It is also contended that in case of termination
simplicitor the management did not comply with the
provisions of Section 25 F, G, H. Hence, the termination
order dated 03.09.2015 passed by the management is illegal
and liable to be set aside.
30. On the other hand, ld. AR for the Management argued that
the workmen indulged in serious misconduct and behaved
POIT No. 1058/16 Page No. 23 of 44
DLCT130064862016
inappropriately with the officials of the management such as
wrongful confinement of officials, protesting in the premises
of the management among other things. The management in
this regard had also filed an FIR to this effect. The
management had duly complied with the principles of natural
justice and served show cause notice to each and evry
workmen. Copies of which are placed on record by the
management. It is only when after finding their reply to their
show cause notice unsatisfactory, the management terminated
their services. Therefore, the argument of the management to
the effect that the management did not comply with the
provisions of principles of natural justice are fallacious, as
the workmen were given due opportunity to explain their
stance.
31. This tribunal has gone through the pleadings as well as
evidence led by both the parties. From the bare perusal of the
testimony of both the parties, it is established that no inquiry
proceedings, charge sheet was served upon the workmen
prior to their termination. There is not even a single iota of
the piece of evidence placed on record by the management in
the form of oral as well as documentary evidence that the
workmen was given the reasonable opportunity of right of
being heard prior to their termination of services.
32. The Constitution Bench of the Hon'ble Supreme Court in
POIT No. 1058/16 Page No. 24 of 44
DLCT130064862016
Delhi Transport Corpn. v. D.T.C. Mazdoor Congress,
1991 Supp (1) SCC 600 have emphasized on the importance
of the principle of "audi alteram partem" rule, which requires
hearing both sides of a case, as integral to the rule of law and
fairness, and states that this principle cannot be bypassed
without explicit exclusion by law. In this case, the
constitutional validity of Regulation 9(b) was challenged
which allowed for the termination of services of employees
without stating reasons. The said regulation was held to be
arbitrary, unregulated, and in violation of natural justice
principles and Article 14 of the Constitution of India. It is
observed that any service regulation or rule must adhere to
the principles of fairness, reasonableness, and justness, rather
than being arbitrary. The relevant portion of the judgement is
as follows:
"202. Thus on a conspectus of the catena of cases
decided by this Court the only conclusion that follows
is that Regulation 9(b) which confers powers on the
authority to terminate the services of a permanent
and confirmed employee by issuing a notice
terminating the services or by making payment in
lieu of notice without assigning any reasons in the
order and without giving any opportunity of hearing
to the employee before passing the impugned order is
wholly arbitrary, uncanalised and unrestricted
violating principles of natural justice as well as
Article 14 of the Constitution. It has also been held
consistently by this Court that the government carries
on various trades and business activity through the
POIT No. 1058/16 Page No. 25 of 44
DLCT130064862016
instrumentality of the State such as Government
Company or Public Corporations. Such Government
Company or Public Corporation being State
instrumentalities are State within the meaning of
Article 12 of the Constitution and as such they are
subject to the observance of fundamental rights
embodied in Part III as well as to conform to the
directive principles in Part IV of the Constitution. In
other words the Service Regulations or Rules framed
by them are to be tested by the touchstone of Article
14 of Constitution. Furthermore, the procedure
prescribed by their Rules or Regulations must be
reasonable, fair and just and not arbitrary, fanciful
and unjust. Regulation 9(b), therefore, confers
unbridled, uncanalised and arbitrary power on the
authority to terminate the services of a permanent
employee without recording any reasons and without
conforming to the principles of natural justice. There
is no guideline in the Regulations or in the Act, as to
when or in which cases and circumstances this power
of termination by giving notice or pay in lieu of
notice can be exercised. It is now well settled that the
'audi alteram partem' rule which in essence, enforces
the equality clause in Article 14 of the Constitution is
applicable not only to quasi-judicial orders but to
administrative orders affecting prejudicially the
party-in-question unless the application of the rule
has been expressly excluded by the Act or Regulation
or Rule which is not the case here. Rules of natural
justice do not supplant but supplement the Rules and
Regulations. Moreover, the Rule of Law which
permeates our Constitution demands that it has to be
observed both substantially and procedurally.
Considering from all aspects Regulation 9(b) is illegal
and void as it is arbitrary, discriminatory and without
any guidelines for exercise of the power. Rule of law
posits that the power is to be exercised in a manner
POIT No. 1058/16 Page No. 26 of 44
DLCT130064862016
which is just, fair and reasonable and not in an
unreasonable, capricious or arbitrary manner leaving
room for discrimination. Regulation 9(b) does not
expressly exclude the application of the 'audi alteram
partem' rule and as such the order of termination of
service of a permanent employee cannot be passed by
simply issuing a month's notice under Regulation
9(b) or pay in lieu thereof without recording any
reason in the order and without giving any hearing to
the employee to controvert the allegation on the basis
of which the purported order is made.
XXXXX
232. The right to life includes right to livelihood. The
right to livelihood therefore cannot hang on to the
fancies of individuals in authority. The employment is
not a bounty from them nor can its survival be at
their mercy. Income is the foundation of many
fundamental rights and when work is the sole source
of income, the right to work becomes as much
fundamental. Fundamental rights can ill-afford to be
consigned to the limbo of undefined premises and
uncertain applications. That will be a mockery of them.
33. The Hon'ble Supreme Court in Olga Tellis v. Bombay
Municipal Corpn., (1985) 3 SCC 545 has also observed that
"32. As we have stated while summing up the
petitioners' case, the main plank of their argument is
that the right to life which is guaranteed by Article 21
includes the right to livelihood and since, they will be
deprived of their livelihood if they are evicted from
their slum and pavement dwellings, their eviction is
tantamount to deprivation of their life and is hence
unconstitutional. For purposes of argument, we will
assume the factual correctness of the premise that if
POIT No. 1058/16 Page No. 27 of 44
DLCT130064862016
the petitioners are evicted from their dwellings, they
will be deprived of their livelihood. Upon that
assumption, the question which we have to consider is
whether the right to life includes the right to
livelihood. We see only one answer to that question,
namely, that it does. The sweep of the right to life
conferred by Article 21 is wide and far-reaching. It
does not mean merely that life cannot be
extinguished or taken away as, for example, by the
imposition and execution of the death sentence,
except according to procedure established by law.
That is but one aspect of the right to life. An equally
important facet of that right is the right to livelihood
because, no person can live without the means of
living, that is, the means of livelihood. If the right to
livelihood is not treated as a part of the
constitutional right to life, the easiest way of
depriving a person of his right to life would be to
deprive him of his means of livelihood to the point of
abrogation. Such deprivation would not only denude
the life of its effective content and meaningfulness
but it would make life impossible to live. And yet,
such deprivation would not have to be in accordance
with the procedure established by law, if the right to
livelihood is not regarded as a part of the right to
life. That, which alone makes it possible to live, leave
aside what makes life livable, must be deemed to be
an integral component of the right to life. Deprive a
person of his right to livelihood and you shall have
deprived him of his life. Indeed, that explains the
massive migration of the rural population to big
cities. They migrate because they have no means of
livelihood in the villages. The motive force which
propels their desertion of their hearths and homes in
the village is the struggle for survival, that is, the
struggle for life. So unimpeachable is the evidence of
the nexus between life and the means of livelihood.
POIT No. 1058/16 Page No. 28 of 44
DLCT130064862016
They have to eat to live: only a handful can afford the
luxury of living to eat. That they can do, namely, eat,
only if they have the means of livelihood. That is the
context in which it was said by Douglas, J. in Baksey
[347 US 442, 472 : 98 L Ed 829 (1954)] that the right
to work is the most precious liberty that man
possesses. It is the most precious liberty because, it
sustains and enables a man to live and the right to life
is a precious freedom. "Life", as observed by Field, J.
in Munn v. Illinois [(1877) 94 US 113] means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. State of U.P. [AIR 1963 SC 1295 : (1964) 1 SCR 332 : (1963) 2 Cri LJ 329] XXX
39. It is far too well-settled to admit of any argument that the procedure prescribed by law for the deprivation of the right conferred by Article 21 must be fair, just and reasonable. [See E.P. Royappa v. State of T.N. [(1974) 4 SCC 3 : 1974 SCC (L&S) 165 :
(1974) 2 SCR 348] ; Maneka Gandhi v. Union of India [(1978) 1 SCC 248 : (1978) 2 SCR 621] ; M.H. Hoscot v. State of Maharashtra [(1978) 3 SCC 544 :
1978 SCC (Cri) 468 : (1979) 1 SCR 192] ; Sunil Batra (I) v. Delhi Administration [(1978) 4 SCC 494 : 1979 SCC (Cri) 155 : (1979) 1 SCR 392] , Sita Ram v. State of U.P. [(1979) 2 SCC 656 : 1979 SCC (Cri) 576 : (1979) 2 SCR 1085] ; Hussainara Khatoon (IV) v. Home Secretary, State of Bihar [(1980) 1 SCC 98, 103 : 1980 SCC (Cri) 40 : (1979) 3 SCR 532, 537] ;
Hussainara Khatoon (I) v. Home Secretary, State of Bihar [(1980) 1 SCC 81 : 1980 SCC (Cri) 23] ; Sunil Batra (II) v. Delhi Administration [(1980) 3 SCC 488 : 1980 SCC (Cri) 777 : (1980) 2 SCR 557] ; Jolly George Varghese v. Bank of Cochin [(1980) 2 SCC POIT No. 1058/16 Page No. 29 of 44 DLCT130064862016 360, 367 : AIR 1980 SC 470 : (1980) 2 SCR 913, 921- 922] ; Kasturi Lal Lakshmi Reddy v. State of J&K [(1980) 4 SCC 1 : (1980) 3 SCR 1338, 1356] and Francis Coralie Mullin v. Administrator, Union Territory of Delhi. [(1981) 1 SCC 608, 614 : 1981 SCC (Cri) 212 : (1981) 2 SCR 516, 523-524]
40. Just as a mala fide act has no existence in the eye of law, even so, unreasonableness vitiates law and procedure alike. It is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right, in this case the right to life, must conform to the norms of justice and fairplay. Procedure, which is unjust or unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the action taken under it. Any action taken by a public authority which is invested with statutory powers has, therefore, to be tested by the application of two standards: the action must be within the scope of the authority conferred by law and secondly, it must be reasonable. If any action, within the scope of the authority conferred by law, is found to be unreasonable, it must mean that the procedure established by law under which that action is taken is itself unreasonable. The substance of the law cannot be divorced from the procedure which it prescribes for, how reasonable the law is, depends upon how fair is the procedure prescribed by it. Sir Raymond Evershed [ The Influence of Remedies on Rights (Current Legal Problems 1953, Volume 6)] says that, "from the point of view of the ordinary citizen, it is the procedure that will most strongly weigh with him. He will tend to form his judgment of the excellence or otherwise of the legal system from his personal knowledge and experience in seeing the POIT No. 1058/16 Page No. 30 of 44 DLCT130064862016 legal machine at work". Therefore, "He that takes the procedural sword shall perish with the sword." [ Per Frankfurter, J. in Viteralli v. Seton, 3 L Ed 2d 1012]
41. Justice K.K. Mathew points out in his article on 'The Welfare State, Rule of Law and Natural Justice', which is to be found in his book Democracy, Equality and Freedom [ Eastern Book Co., Lucknow (1978), p. 28] , that there is "substantial agreement in juristic thought that the great purpose of the rule of law notion is the protection of the individual against arbitrary exercise of power wherever it is found". Adopting that formulation, Bhagwati, J. speaking for the Court, observed in Ramana Dayaram Shetty v. International Airport Authority of India [(1979) 3 SCC 489, 504 : (1979) 3 SCR 1014, 1032] , that it is (SCC p. 504, para 10) "unthinkable that in a democracy governed by the rule of law, the executive Government or any of its officers should possess arbitrary power over the interests of the individual. Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement".
34. Therefore, as per the settled position of law laid down by the Hon'ble Supreme Court as well as Hon'ble Delhi High Court, the workman concerned despite being a contractual employee is entitled to the domestic/departmental inquiry. It is also emphasized that the termination of the workman in this case is not just a termination simpliciter but stigmatic in nature on account of allegations of misconduct. Stigmatic termination not only ends the employment of the workman in POIT No. 1058/16 Page No. 31 of 44 DLCT130064862016 the establishment where he was previously working but ends all of his options for seeking future employment elsewhere too. Given the grave consequences of such an action, it becomes all the more important that the principles of natural justice are strictly adhere to. These basic tenets of the law, just like the industrial law, always remains and does not discriminate between the part-time, seasonal muster-roll, daily wagers, regular, permanent or any other category of the workman for that matter. In the present case, it is an admitted position that no domestic/departmental inquiry was conducted, no chargsheet, no show-cause notice etc. was issued to the workman before terminating his services.
35. It is a well settled position of law, if no inquiry is conducted or the inquiry conducted in vitiated, in such a situation the management is supposed to make a plea to prove the charges of misconduct before the Tribunal. No such plea in this regard has been taken by the management. The effect of not making a proper prayer/request in its written statement by the Management to adduce evidence before this Tribunal in case the inquiry conducted is vitiated or no inquiry is conducted is discussed in the case of Karnataka State Road Transport Corpn. Vs. Lakshmidevamma (Smt.) and Anr., 2001 (5) SCC 433 by the Constitution Bench of Hon'ble Supreme Court. The Hon'ble Court had upheld the view taken by its Division Bench in Shambhu Nath Goyal Vs. Bank of POIT No. 1058/16 Page No. 32 of 44 DLCT130064862016 Baroda (1983) 4 SCC 491 in which it was held that the management has right to adduce evidence to justify its domestic enquiry only if it had reserved its right to do so in the application made by it under Section 33 of the Industrial Disputes Act, 1947 or in the objection that the management had to file to the reference made under Section 10 of the Act, meaning thereby that the management had to exercise its right of leading fresh evidence at the first available opportunity and not at anytime thereafter during the proceedings before the Tribunal/Labour Court. The relevant para No. 3, 6, 16 to 20 of the judgment read as under:-
"3. The rights which the employer has in law to adduce additional evidence in a proceeding before the Labour Court or Industrial Tribunal either under Section 10 or Section 33 of the Industrial Disputes Act questioning the legality of the order terminating the service must be availed of by the employer by making a proper request at the time when it files its statement of claim or written statement or makes an application seeking either permission to take certain action or seeking approval of the action taken by it."
6. Thus it is seen from the above observations of the Court in Rajendra Jha case that the same is decided on the facts of the said case without laying down any principle of law nor has the Court taken any view opposed to Shambhu Nath Goyal case. Therefore, having considered the two judgments, we are of the opinion that there is no conflict in the judgments of this Court in the cases of Shambhu Nath Goyal and POIT No. 1058/16 Page No. 33 of 44 DLCT130064862016 Rajendra Jha.
16. While considering the decision in Shambhu Nath Goyal case we should bear in mind that the judgment of Varadarajan, J. therein does not refer to the case of Cooper Engg. However, the concurring judgment of D.A. Desai, J. specifically considers this case. By the judgment in Goyal case the management was given the right to adduce evidence to justify its domestic enquiry only if it had reserved its right to do so in the application made by it under Section 33 of the Industrial Disputes Act, 1947 or in the objection that the management had to file to the reference made under Section 10 of the Act, meaning thereby that the management had to exercise its right of leading fresh evidence at the first available opportunity and not at any time thereafter during the proceedings before the Tribunal/Labour Court.
17 . Keeping in mind the object of providing an opportunity to the management to adduce evidence before the Tribunal/Labour Court, we are of the opinion that the directions issued by this Court in Shambhu Nath Goyal case need not be varied, being just and fair. There can be no complaint from the management side for this procedure because this opportunity of leading evidence is being sought by the management only as an alternative plea and not as an admission of illegality in its domestic enquiry. At the same time, it is also of advantage to the workmen inasmuch as they will be put to notice of the fact that the management is likely to adduce fresh evidence, hence, they can keep their rebuttal or other evidence ready. This procedure also eliminates the likely delay in permitting the management to make belated application whereby the proceedings before the Labour Court/Tribunal could get prolonged. In our POIT No. 1058/16 Page No. 34 of 44 DLCT130064862016 opinion, the procedure laid down in Shambhu Nath Goyal case is just and fair.
18. There is one other reason why we should accept the procedure laid down by this Court in Shambhu Nath Goyal case. It is to be noted that this judgment was delivered on 27-9-1983. It has taken note of almost all the earlier judgments of this Court and has laid down the procedure for exercising the right of leading evidence by the management which we have held is neither oppressive nor contrary to the object and scheme of the Act. This judgment having held the field for nearly 18 years, in our opinion, the doctrine of stare decisis requires us to approve the said judgment to see that a long-standing decision is not unsettled without a strong cause.
19. For the reasons stated above, we are of the opinion that the law laid down by this Court in the case of Shambhu Nath Goyal v. Bank of Baroda is the correct law on the point.
20. In the present case, the appellant employer did not seek permission to lead evidence until after the Labour Court had held that its domestic enquiry was vitiated. Applying the aforestated principles to these facts, we are of the opinion that the High Court has rightly dismissed the writ petition of the appellant, hence, this appeal has to fail. The same is dismissed with costs.
36. In the present case, the management neither took any plea nor adduced any evidence to prove the charges of misconduct before this tribunal. Neither the management examined the witness against whom the workmen have allegedly protested and wrongfully confined him. Even the outcome of the FIR POIT No. 1058/16 Page No. 35 of 44 DLCT130064862016 which was filed by the management was disclosed. The management has failed to plead as well as prove the charges of misconduct before this tribunal. The services of the workmen were terminated based on certain allegations which the management has miserably failed to prove before this tribunal.
37. Even otherwise, in the case of termination simplicitor nothing has been placed on record by the management to show that they have complied with the provisions of Section 25F, G and H of the I.D Act. Meaning thereby, the conditions precedent to Section 25F are not followed, not only this, the services of the workmen were terminated in violation of the principles of the last come first go as no seniority list was either displayed or exhibited before their termination. It is a well settled position of law that the provisions contained in Section 25F(a) and (b) are mandatory and termination of service of workman, without giving one month's notice or pay in lieu thereof and retrenchment compensation is null and void/illegal/inoperative as held by the Hon'ble Supreme Court in Devinder Singh vs. Municipal Council, Sanaur, AIR 2011 SC 2532.
"19. Section 25 couched in negative form. It imposes a restriction on the employer's right to retrench a workman and lays down that no workman employed in any industry who has been in continuous service for POIT No. 1058/16 Page No. 36 of 44 DLCT130064862016 not less then one year under an employer shall be retrenched until he has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired or he has been paid wages for the period of notice and he has also been paid, at the time of retrenchment, compensation equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months and notice in the prescribed manner has been served upon the appropriate Government or the authority as may be specified by the appropriate Government by notification in the Official Gazette.
20. This Court has repeatedly held that the provisions contained in Section 25F(a) and (b) are mandatory and termination of the service of a workman, which amounts to retrenchment within the meaning of Section 2(oo) without giving one month's notice or pay in lieu thereof and retrenchment compensation is null and void/illegal/inoperative."
27. Further, the division of Patna High Court in Gaffar and Ors. vs. Union of India (UOI) and Ors., 1983(31)BLJR282 have highlighted the importance of Rule 77 of I.D Rules and failing to implement the same renders the termination/retrenchment illegal. The relevant portion of the judgement is reproduced below:
4. The Rule 77 of the Industrial Disputes (Central) Rules, 1957 which is mentioned below requires preparation and publication of a list of all workmen in the concerned category at least 7 days in advance:
Maintenance of seniority list of workmen--The employer shall prepare a list of all workmen in the particular category from which retrenchment is POIT No. 1058/16 Page No. 37 of 44 DLCT130064862016 contemplated arranged according to the seniority of their service in that category and cause a copy thereof to be pasted on a Notice Board in a conspicuous place in the premises of the Industrial Establishment at least seven days before the actual date of retrenchment. This provision has been included in the Rules so that the object of Section 25G of the Industrial Disputes Act may be effectively achieved. The Industrial rule relating to retrenchment of 'last come, first go' where other things are equal has been recognised for long and affords a healthy safeguard against discrimination. The principle was given statutory recognition by amendment of the Act in 1953. The Rule 77 was framed with a view to facilitate a retrenched workman to verify that he is not being discriminated against otherwise it may be impracticable for him to collect relevant information and' enforce his right. The minimum time of seven days allowed for this purpose is not unnecessarily long, for the workman should get an adequate opportunity to scrutinize the correctness of the seniority list before he is thrown out Viewed from this angle, it should be held that the requirement mentioned in Rule 77 is mandatory and its violation renders an order of retrenchment illegal."
38. The similar view was also taken by the Hon'ble Supreme Court of India in Harjinder Singh vs. Punjab State Warehousing Corporation, AIR 2010 SC 1116.
39. In view of the admitted position and the mandate of the law, this tribunal holds that the management has clearly committed unfair labour practice as mentioned in Fifth Schedule at Item No. 5(a), (b) and (f) of the I.D. Act by terminating the services of the workman concerned by way of POIT No. 1058/16 Page No. 38 of 44 DLCT130064862016 victimization and in colourable exercise of employer's rights.
This tribunal further holds that the management did not follow the principles of natural justice as no domestic/departmental inquiry was conducted and their services were terminated on 03.09.2015 with undue haste without offering any opportunity of being heard. Even in case of termination simpliciter, the management contravened Section 25 F, G and H of the I.D. Act.
40. The AR for the workman have argued that once the termination is held to be illegal the normal relief is to award reinstatement with continuity in service and full backwages. He placed reliance upon the judgement of Hon'ble High Court in Delhi Transport Corporation vs Ram Kumar And Another, 1982 (44) FLR 356 wherein it was held that once the termination is held to be illegal and unjustified, the normal rule is to award reinstatement with full backwages and continuity in service except when the workman is gainfully employed coupled with receiving wages equivalent to his last drawn salary at the time of his illegal termination. The Para 14 of the aforementioned judgement is as follows:
"......The principle is that when an employee after protracted litigation with the employer succeeds in showing that the termination of his service was unjustified he would normally be entitled to reinstatement with full back wages expecting of course if it could be shown that he had been POIT No. 1058/16 Page No. 39 of 44 DLCT130064862016 gainfully employed in the meanwhile. Thus full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure, See Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha MANU/SC/0369/1979 :
(1980)ILLJ137SC . Thus if the employer wishes to show that workman gainfully employed he must establish and prove that fact; no presumption of being gainfully employed can be raised. It is not dispute that no evidence has been led or even shown on the record by the appellant which shows that workman was at any time in between employed elsewhere. In that view there would be no justification for denying him full back wages.
The mere fact of long time having elapsed is certainly not a reason to deny him his normal relief of reinstatement because as said in Panitole Tea Estate case. "If his dismissal was wrongful then merely because proceedings for adjudication of the industrial disputes have taken a long time is by itself no reason for not directing his reinstatement if it is otherwise justified being in accordance with normal rule."
41. Further, reliance upon case of Deepali Gundu Surwase vs Kranti Junior Adhyapak & Ors., Civil Appeal No. 6767/2013 decided on 12.08.2013 wherein the Hon'ble Supreme Court has held that onus to prove that the gainful employment shifts to the management once the workman has pleaded that he/she is not gainfully employed elsewhere. The Para 33 of the aforementioned judgement is as follows:
POIT No. 1058/16 Page No. 40 of 44DLCT130064862016 "33 (iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments."
42. The Hon'ble Delhi High Court in the case of Municipal Corporation of Delhi vs. POIT & Anr., W. P. (C) 6024/1999 awarded reinstatement once the services of the workman were found to be terminated in contravention to Section 25G of the I.D. Act. The relevant para is reproduced below:
"In the present case, the MCD has not been able to POIT No. 1058/16 Page No. 41 of 44 DLCT130064862016 produce evidence to show that while terminating services of the Respondent workman it complied with the requirements of Section 25G ID Act. Mr. Rajiv Aggarwal, learned counsel for the workman submitted that the workman is in dire need of employment and in such circumstances the award of compensation would not be an adequate remedy. Given the difficulty in obtaining employment, the submission on behalf of the workman appears to be justified. In a case like this, lumpsum compensation in lieu of reinstatement cannot be an adequate or satisfactory remedy for Respondent No. 2 workman."
43. Though the judgment relied upon by the workmen are correct to the circumstances mentioned therein but some efforts are required to be shown by the workmen that he tried, but did not get the employment. Mere single statement cannot be suffice, hence some balance has to be adopted between the rights of the workmen and rights of the management. The workman has stated in his statement of claim that they remained unemployed since the date of their services were illegally terminated by the management. The management has no evidence or material to show that the workmen are gainfully employed elsewhere since their termination. In the absence of any evidence that the workmen is gainfully employed elsewhere, this tribunal can not assume the same. Moreover, no exceptional circumstances or situations were advanced by the AR for the management as to why this tribunal should deviate from the normal rule of reinstatement POIT No. 1058/16 Page No. 42 of 44 DLCT130064862016 and continuity in service along with some wages if not full back wages once the termination is held to be illegal.
44. In view of the aforementioned reasons, this tribunal sets aside the order dated 03.09.2015 issued by the management terminating the services of the workmen. The said order is perverse, illegal and without any basis whatsoever, and the same is passed in complete contravention to the provisions of Industrial Dispute Act. It is further held that the workmen as mentioned in the table above are entitled for reinstatement along with continuity in service. As far as back wages are concerned this tribunal, while adopting a balanced approach, is of the considered opinion that interest of justice would be served if the workmen are allowed 50 % backwages as opposed to full back wages.
Relief:
45. In view of my aforementioned observations and findings on issues no. 1 to 4, this tribunal holds that workmen whose particulars are given in table above are entitled for reinstatement and continuity in service. They are also entitled for 50 % back wages with all consequential benefits either monetary or otherwise w.e.f. from their termination till passing of this award. The management is directed to implement the award within 60 days of its publication, failing which, the management will be liable to pay interest POIT No. 1058/16 Page No. 43 of 44 DLCT130064862016 @ 8 % per annum from the date of accrual to till the final payment is made. The award is passed accordingly.
46. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Record Room.
Digitally signedAJAY by AJAY GOEL Date: Announced in open Tribunal on this 18.03.2024 GOEL 2024.03.21 12:46:13 +0530 (Ajay Goel) POIT-I/RADC, New Delhi. POIT No. 1058/16 Page No. 44 of 44