Delhi District Court
All R/O H.No.146 vs M/S. Shri Arihant Cables on 11 August, 2023
IN THE COURT OF GORAKH NATH PANDEY,
ADDL. DISTRICT & SESSIONS JUDGE/
PRESIDING OFFICER : LABOUR COURT - IV,
ROUSE AVENUE COURTS : NEW DELHI.
LIR No.3697/2018
CNR No.DLCT130037482018
IN THE MATTER OF :
Sh. Uday Veer (since deceased)
Through his LRs
(1) Smt. Pinki (Wife)
(2) Master Aditya (Son)
(3) Master Arya (Son)
(4) Master Arun (Son)
All R/o H.No.146, Gali No.4, Saboli Khadda,
Saboli Mandoli, Harsh Vihar,
Delhi - 110093. ....WORKMAN/CLAIMANT
VERSUS
M/s. Shri Arihant Cables,
423-424, Gali No.7, Band Gali,
Friends Colony, Delhi - 110095. ....MANAGEMENT
Date of institution of the case : 18.09.2018
Date of passing the Award : 11.08.2023.
Decision : Award Passed.
AWAR D
1. Vide this Award, I shall decide the Industrial Dispute
which was referred by Dy. Labour Commissioner, East/North
East District on a complaint filed by the aforesaid
claimant/workman against the Management, vide reference no.
F.24(90)/Lab/NE/2018/Ref/890 dated 02.04.2018, u/s 10(1)(c)
LIR No.3697/2018
Sh. Udaveer v. Sh. Arihant Cables
Page No.1/13
and 12 (5) of The Industrial Disputes Act, 1947, wherein the
following reference was to be answered :-
"Whether the services of workman Sh. Udayveer S/o Sh. Balak
Ram have been terminated illegally and/or unjustifiably by the
management; and if so, to what relief is he entitled and what
directions are necessary in this respect?
2. Notice of the reference was issued to the workman.
Pursuant thereto, the workman appeared and filed statement of
claim claiming that he was appointed by the management on
10.01.2007 at the post of Qualling Man and his last drawn salary
was Rs.10300/- per month; he worked honestly, efficiently,
punctually and regularly and has never given any chance of
complaint to his superior or any official of the management.
It is further stated in the statement of claim that the
management deprived the workman from legal facilities such as
PF, I-card, pay slip, attendance card, bonus, overtime etc. Further,
he was compelled to work for 12 hours per day.
It is further stated in the statement of claim that the
management provided the ESI facility to the workman after six
years of his joining.
The workman alleged that when he repeatedly
demanded the above said legal facilities from the management,
the management got annoyed and terminated his services on
09.11.2017 illegally and unjustifiably without any rhyme or
reason and without giving any notice. The management also
withheld the earned wages of the workman for the months of
December, 2016 and January, 2017. Aggrieved from the illegal
termination, the workman issued legal demand notice dated
LIR No.3697/2018
Sh. Udaveer v. Sh. Arihant Cables
Page No.2/13
28.12.2017 to the management for his reinstatement and payment
of back wages which was not replied nor the services of the
workman was reinstated. Thereafter, the workman made
complaint on 13.11.2017 to the Assistant Labour Commissioner
against the management regarding his illegal termination. The
workman has also filed his claim petition before the Conciliation
Officer but no settlement could be arrived at between the parties
and hence the present reference.
The workman claims to be unemployed from the
date of his illegal termination. As claimed, the termination of
service of the workman is illegal and unjustified as the
management violated the provisions of I.D. Act. It is prayed that
an award be passed in favour of workman and against
management directing the management to reinstate him with
consequential benefits including full back wages and continuity
in service.
3. Notice of the statement of claim was issued to the
management and management had filed its written statement
contended that - the present petition is misuse and abuse of the
process of law and is liable to be dismissed on the ground that
there is no relationship of employer and employee between the
parties to the present petition; he was neither regular nor punctual
and diligent to his service and he was a regular absentee and
therefore, he was warned by the management time to time. The
management in the written statement submitted that the workman
was appointed on 02.11.2011 on the wage scale of Rs.7360/- per
LIR No.3697/2018
Sh. Udaveer v. Sh. Arihant Cables
Page No.3/13
month and he was covered under ESI and EPF Act from day one
and ESI smart card and appointment letter duly signed by
management were handed over to him. The management further
admitted that the last drawn salary of the workman was
Rs.10764/- per month. The management claimed that the
workman was given bonus, casual and earned leave as per the
law and proper record is being maintained by the management
and after receiving the entire settlement amount, he left the job.
The management denied the other averments of the statement of
claim and lastly prayed to dismiss the claim petition.
4. Vide order dated 17.12.2019, the following issues
were framed in view of pleadings of the parties :-
ISSUES:
(1) Whether there existed a relationship of employer and
employee between the parties? OPW
(2) Whether the services of workman were terminated
illegally and/or unjustifiably by the management and if so, to
what consequential relief is he entitled for? OPW
(3) Whether the workman was not regular, punctual and
diligent while discharging his services and was illegally
absenting himself from the duties? OPM
(4) Relief.
The case was, thereafter, fixed for evidence of
workman.
5. On 02.04.2022, when the matter was listed for
evidence of the workman, an application was filed by the LRs of
the workman for substitution of the LRs of workman intimating
that the workman had expired on 02.12.2020. The application
LIR No.3697/2018
Sh. Udaveer v. Sh. Arihant Cables
Page No.4/13
was allowed and the LRs of the deceased were brought on
record.
6. In order to prove the case, the wife of the deceased
workman appeared as witness and filed in evidence, her
examination in chief by way of affidavit Ex.WW1/A wherein she
reiterated the contents of statement of claim on solemn
affirmation. Besides this, she had also placed on record the
following documents :-
(i) Ex.WW1/1: Complaint dated 13.11.2017 made by
the deceased workman to the Assistant Labour Commissioner
against the management;
(ii) Ex.WW1/2 and Ex.WW1/3: Demand notice dated
28.12.2017 issued by the deceased workman to the management
and its postal receipt respectively:
(iii) Ex.WW1/4: Claim petition filed by the deceased
workman before the Conciliation Officer;
(iv) Ex.WW1/5: ESIC card of the deceased workman;
(v) Ex.WW1/6 to Ex.WW1/8: Documents related to last
rites of the deceased workman;
(vi) Ex.WW1/9: Aadhar card of WW1;
(vii) Ex.WW1/10: Aadhar card of deceased workman.
WW1 was not cross-examined by the management
despite opportunities and hence vide order dated 20.04.2023, the
right of the management to cross-examine her was closed. The
workman's evidence was thereafter closed.
LIR No.3697/2018
Sh. Udaveer v. Sh. Arihant Cables
Page No.5/13
7. The management did not lead any evidence despite
opportunity and hence, vide order dated 23.05.2023, the right of
the management to lead evidence was closed.
8. I have heard the final arguments addressed by the
AR of the LRs of the deceased workman. None appeared for the
management to address the final arguments. I have also gone
through the materials lying on the record as well as the written
arguments filed by the AR for the LRs. of the deceased workman.
My issue wise findings are as under:-
Issue No.1:
Whether there existed a relationship of employer and
employee between the parties? OPW
The onus to prove the above issue was on the
workman. The management in its written statement admitted the
employment of the workman and therefore, there remains no
dispute regarding the relationship. The issue is accordingly
decided in favour of the workman and against the management.
Issue No.2 & 3:
(2) Whether the services of workman were terminated
illegally and/or unjustifiably by the management and if so, to
what consequential relief is he entitled for? OPW
(3) Whether the workman was not regular, punctual and
diligent while discharging his services and was illegally
absenting himself from the duties? OPM
The onus to prove the Issue No.2 was on the
LIR No.3697/2018
Sh. Udaveer v. Sh. Arihant Cables
Page No.6/13
workman whereas Issue No.3 remains to be proved by the
management. Both these issue shall be decided together being
inter-related.
9. The statement of claim filed by the workman along-
with defence of management has been mentioned at the outset.
The workman claimed that he joined the management on
10.01.2007 as Qualling Man and his last drawn wages were
Rs.10,300/- p.m.; his service was illegally terminated on
09.11.2017 without paying his earned wages and legal dues.
The employment of the workman is not denied in
the written statement filed by the management. The management
submitted that the workman was appointed on 02.11.2011 and his
last drawn wages were Rs.10,764/- per month. The only
contention of the management remained that the workman had
resigned and left the services of the management after receiving
the entire settlement amount.
The WW1 (wife of deceased workman) in her
affidavit by way of evidence Ex.WW1/A reiterated the case
regarding the claim of the deceased workman and also proved the
relevant documents including the legal demand notice issued to
the management before filing of this case. The testimony of
WW1 remained unimpeached/uncontroverted as the management
chosen not to cross-examine her.
10. The workman claimed that he was appointed by the
management on 10.01.2007 but nothing has been placed on
LIR No.3697/2018
Sh. Udaveer v. Sh. Arihant Cables
Page No.7/13
record by him to prove the said contention. Ex.WW1/5 i.e. the
Temporary Identity Certificate issued by ESIC to the workman
shows his date of joining with the management as 02.11.2011.
The contention of the management that the workman resigned
from the job of the management after receiving his settlement
amount and he was not regular, punctual and diligent while
discharging his services and was illegally absenting himself from
the duties remained unproved as the management has not led any
evidence in this case. There is no document on record placed by
the management to show that the workman was issued any notice
to join the duties when he remained absent or subsequent enquiry
was made against him. As noted, no inquiry has been made by
the management in the matter as well.
11. It is settled that where an employer has failed to
make an enquiry before dismissal or discharge of a workman, it
is open for him to justify the action before the labour court by
leading evidence before it. It is relevant to refer the observations
of Hon'ble Supreme Court in Civil Appeal No.142/2021 titled
State of Uttarakahand and Ors. vs. Smt. Sureshwati decided on
20.01.2021. As held in the relevant para no.14 -
14. This Court has in a catena of decisions held that where an
employer has failed to make an enquiry before dismissal or
discharge of a workman, it is open for him to justify the action
before the Labour Court by leading evidence before it. The entire
matter would be open before the tribunal, which would have the
jurisdiction to satisfy itself on the evidence adduced by the
parties whether the dismissal or discharge was justified. A four
Judge Bench of this Court in Workmen of the Motipur Sugar
Factory Private Ltd. v. Motipur Sugar Factory (AIR 1965 SC
1803) held that:
" 11. It is now well settled by a number of decisions of this Court
LIR No.3697/2018
Sh. Udaveer v. Sh. Arihant Cables
Page No.8/13
that where an employer has failed to make an enquiry before
dismissing or discharging a workman it is open to him to justify
the action before the tribunal by leading all relevant evidence
before it. In such a case the employer would not have the benefit
which he had in cases where domestic enquiries have been held.
The entire matter would be open before the tribunal which will
have jurisdiction not only to go into the limited questions open to
a tribunal where domestic enquiry has been properly held (see
Indian Iron & Steel Co. v. Workmen (AIR 1958 SC 130) but also
to satisfy itself on the facts adduced before it by the employer
whether the dismissal or discharge was justified. We may in this
connection refer to Sana Musa Sugar Works (P) Limited v.
Shobrati Khan (AIR 1959 SC 923), Phulbari Tea Estate v.
Workmen (AIR 1959 SC 1111) and Punjab National Bank
Limited v. Workmen (AIR 1960 SC 160). These three cases were
further considered by this Court in Bharat Sugar Mills Limited
v. Jai Singh (1962) 3 SCR, 684 and reference was also made to
the decision of the Labour Appellate Tribunal in Ram Swarath
Sinha v. Belsund Sugar Co. (1954) LAC 697 . It was pointed out
that "the important effect of omission to hold an enquiry was
merely this: that the tribunal would not have to consider only
whether there was a prima facie case but would decide for itself
on the evidence adduced whether the charges have really been
made out". It is true that three of these cases, except Phulbari Tea
Estate case, were on applications under Section 23 of the
Industrial Disputes Act, 1947. But in principle we see no
difference whether the matter comes before the tribunal for
approval under Section 33 or on a reference under Section 10 of
the Industrial Disputes Act, 1947. In either case if the enquiry is
defective or if no enquiry has been held as required by Standing
Orders, the entire case would be open before the tribunal and the
employer would have to justify on facts as well that its order of
dismissal or discharge was proper. Phulbari Tea Estate
case was on a reference under Section 10, and the same principle
was applied there also, the only difference being that in that case
there was an inquiry though it was defective. A defective
enquiry in our opinion stands on the same footing as no enquiry
and in either case the tribunal would have jurisdiction to go into
the facts and the employer would have to satisfy the tribunal that
on facts the order of dismissal or discharge was proper."
Subsequently in Delhi Cloth and General Mills Co. v.
Ludh Budh Singh (1972) 1 SCC 595 this Court held that :
"(1) If no domestic enquiry had been held by the management, or
if the management makes it clear that it does not rely upon any
domestic enquiry that may have been held by it, it is entitled to
straightway adduce evidence before the Tribunal justifying its
action. The Tribunal is bound to consider that evidence so
adduced before it, on merits, and give a decision thereon. In such
LIR No.3697/2018
Sh. Udaveer v. Sh. Arihant Cables
Page No.9/13
a case, it is not necessary for the Tribunal to consider the validity
of the domestic enquiry as the employer himself does not rely on
it.
....
(3) When the management relies on the enquiry conducted by it, and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management, are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.
Reliance is also placed on the judgment of this Court in Workmen of Firestone Tyre & Rubber Co. of India (P) Ltd. v. The Management of Firestone Tyre & Rubber Co. of India (P) Ltd and Others. (1973) 1 SCC 813 wherein the broad principle regarding holding of the enquiry were spelt out as:
"32. From those decisions, the following principles broadly emerge:
"(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality. (3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide. (4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.LIR No.3697/2018
Sh. Udaveer v. Sh. Arihant Cables Page No.10/13 (5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct. (9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation. (10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Management of Panitole Tea Estate v. Workmens, (1971) 1 SCC 742 within the judicial decision of a Labour Court or Tribunal.
..........
40. Therefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under Section 11-A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case and hold that no misconduct is proved.
LIR No.3697/2018Sh. Udaveer v. Sh. Arihant Cables Page No.11/13
41. We are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference under Section 11-A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to re- appraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, Section 11-A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11-A."
12. In view of the aforesaid discussions, the management herein has not been able to discharge its onus in support of contentions in the written statement. It is duly proved from the materials on record and the testimony of the witness/WW1 that the services of the claimant/workman was terminated illegally/unjustifiably by the management. The Issue no.2 is accordingly decided in favour of the workman and against the management whereas issue no.3 is decided against the management.
LIR No.3697/2018Sh. Udaveer v. Sh. Arihant Cables Page No.12/13 "Relief"
13. The claimant herein has sought the relief of reinstatement in the service with full back wages along with the continuity of service and all the consequential benefits. As the claimant has already expired, the relief of reinstatement claimed by the workman has become redundant. In the present case, the deceased workman admittedly served the management for 6 years before his illegal termination. Considering the above, it is appropriate that management is directed to pay lumpsum compensation of Rs.50,000/- (Rs. Fifty Thousand Only) to the LRs of the deceased workman in lieu of back wages and all other consequential benefits/dues. Management is directed to pay the said compensation within 30 days of publication of this award to the LRs of deceased workman, failing which, the amount shall also be carrying an interest @ 8% per annum till the date of its realization.
14. Award is passed and reference is answered accordingly. Signed copy of the award be sent to the Labour Commissioner for publication. The award be also sent to server.
15. File be consigned to Record Room after necessary compliance.
Announced in the open (Gorakh Nath Pandey),
Court on 11.08.2023 Addl. District & Sessions Judge,
Presiding Officer Labour Court- IV,
Rouse Avenue District Courts.
LIR No.3697/2018
Sh. Udaveer v. Sh. Arihant Cables
Page No.13/13