Delhi District Court
Nand Lal S/O Sh. Deep Chand vs Fresh Address: on 12 May, 2014
Nand Lal Vs. Indian Institute of Aeronautics DID No. 95/12
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI:
KARKARDOOMA COURTS: DELHI
REFERANCE CASE (ID) No. 95/12
UNIQUE CASE ID No. 02402C0042892012
In the matter of:
Nand Lal S/o Sh. Deep Chand,
R/o S163, Prem Nagar II,
Delhi 110086. ...... Workman / Claimant
Vs.
M/s. Indian Institute of Aeronautics,
B22, New Rohtak Road,
Multan Nagar, Delhi 110056.
FRESH ADDRESS:
M/s. Indian Institute of Aeronautics,
GRM Public School, Najafgarh Road,
Ranhola, Nangloi, New Delhi. ........ Management.
Date of Institution : 03.02.2012
Date of reserving for award : 03.05.2014
Date of award : 12.05.2014
AWARD
1. CASE OF WORKMAN AS PLEADED IN STATEMENTOFCLAIM
(i) Workman was in the employment of management as a driver for last five
years continuously with a flawless record of service and his last drawn wages were Rs.
8000/ per month.
(ii) The statutory benefits such as bonus etc. were not provided to the
workman by the management, for which workman had seen urging upon it.
Consequently, management became annoyed with workman.
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(iii) Management refused employment orally to the workman on 01.12.2009
without payment of bonus when the workman again asked for the same. The union
sought intervention of the labour inspector vide complaint dated 14.12.2009 for duty and
earned wages but in vain.
(iv) Workman served protest and demand notice dated 13.01.2010 on the
management which stands unrefuted and uncontroverted by management.
(v) The termination amounts to illegal, capricious and unjustified
retrenchment for want of written termination order with cogent reason / ground,
payment of notice wages and retrenchment compensation and the jobs, posts, juniors and
fresh hands in place of workman continue with the management.
(vi) The termination, even otherwise, is the height of malafide, unfair trade
practice and victimization, and also illegal and unjustified.
With these averments, workman prayed for reinstatement with full back wages
for the intervening period of forced unemployment inspite of best efforts w.e.f.
01.12.2009 and a sum of money as monetary relief alongwith consequential benefits in
terms of existing laws / govt. notification, and other relief as this Court deem fit.
2. STAND OF MANAGEMENT AS PLEADED IN WRITTEN STATEMENT OF
DEFENCE.
Management, while denying the case as pleaded by workman in statementof
claim, pleaded that claimant, who was employed with the management, was in a habit to
be irregular and was warned orally at many occasions in the past for his act of irregular,
and claimant was advised to mend his ways and be punctual and regular on duty but
claimant never given a deaf ear to this advice.(sic)
Management has been running an educational institute all over the country under
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the name and style of M/s. Indian Institute of Aeronautics under the Takniki Vikas
Sansthan (Technical Development Society) M3/11, Shrikrishnapuri, Patna, 800001 and
it is duly registered under the Society Act, 1860 (sic) vide registration no.96/1982/1983
and, thus, is not an 'industry' as defined u/s 2 (j) of the Industrial Disputes Act, 1947.
The said institute is being run on 'no profit no loss' basis and comes under the category
of exempted organization under the Income Tax Act. Therefore, employees of the
institute are appointed only on a lump sum consolidated salary on the negotiation basis
and no other allowances are provided the statutory benefit such as bonus etc. (sic).
Claimant started absenting himself from duties w.e.f. 01.12.2009 in an
unauthorised and illegal manner and abandoned his services with the management on his
own free will and accord. Management has always been keen and willing to allow him to
resume his duties, and even sent a representative namely Mr. Pawan Kumar Singh
(Caretaker) to the home of claimant on 04.12.2009 but he (the representative) could not
find him at home and it was told by someone present there that claimant has gone on
duties. Thereafter, management sent the representative on 06.12.2009 being Sunday and
claimant was advised to resume his duties with immediate effect. However, the claimant
refused to resume his duties with management and threatened to implicate them in a
false claim case. Later on it was learnt that claimant has already taken employment
other management immediately after abandoning the services with management. After
some time management received notice from the Office of Deputy Labour
Commissioner, District West, Karampura, New Delhi, where representative of the
management appeared and requested the claimant to resume his service with immediate
effect but workman did not come. Needless to say that this case has been filed against
the management with malafide intention to extract money only knowing fully that the
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same is false and frivolous. Even today management is ready to taken the claimant back
on duties, without prejudice to their right to take appropriate and necessary disciplinary
against him.
Management never received any protest and demand notice dated 13.01.2010 sent
by claimant as alleged. Management also pleaded that claim filed by claimant is not
maintainable under the provisions of the Industrial Disputes Act, 1947 in as much as no
'industrial dispute' under section 2 (k) of the Industrial Disputes Act, 1947 exists between
the management and the claimant as management never terminated the services of
claimant as alleged or at all. At last, management prayed for dismissal of the claim of
workman.
3. REJOINDER
Despite opportunities given, workman did not file rejoinder to WS of defence of
management.
4. ISSUES
Vide order dated 30.07.2012, following issues were framed:
(i) Whether the workman had abandoned his duties, if yes, from
what date and its effect? OPM.
(ii) Whether the services of the workman were terminated illegally
and/or unjustifiably by the Management? OPW.
(iii) Relief.
5. EVIDENCE
Workman appeared in witness box WW1 Mr. Nand Lal and WE was closed on
04.01.2013 by Sh. Amit Sharma Adv. for workman. Management examined MW1 Mr.
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Ashok Kumar Singh and MW2 Mr. Pawan Kumar Singh. ME was closed on 13.03.2014
by Sh. Sunil Kumar Adv. for management.
6. ARGUMENTS
I have heard Sh. Amit Sharma, Adv. for workman and Sh. Sunil Kumar Adv. for
management and gone through material available on judicial file very carefully. Ld.
counsel for management relied upon case laws reported as (i) Novartis India Limited Vs
State of West Bengal and Ors. (2009) 3 Supreme Court Cases 124; (ii) Uttar Pradesh R.
T. C. Ltd. Vs Sarada Prasad Misra LAWS (SC) - 2006 - 4 - 5 (AIR (SC) 200602466);
(iii) Babu Lal Vs Haryana State Agricultural Mkt. Board ALLSCR - 2009 - 0 - 1344;
(iv) Kendriya Vidyalaya Sangathan Vs S. C. Sharma AIR 2005 SC 768 and (v) M/s
Hindustan Tin Works Pvt. Ltd. Vs. The Employees of M/s Hindustan Tin Works Pvt. Ltd.
and Ors. (1979) 2 SCC 80.
7. DECISION ON PRELIMINARY
Management has taken preliminary objection to the effect that management is not
an 'industry' defined under section 2 (j) of the Industrial Disputes Act, 1947.
Admittedly, management is running an educational institute all over the country.
Obviously, it satisfies the triple tests of systematic activity, cooperation between the
employer and employee and production of goods / services. Merely, because
management is running educational institute as / under a society registered under the
Societies Registration Act, 1860 on 'no profit no loss' basis or that it is an exempted
organization under the Income Tax Act, 1961 does not mean that management does not
come within the definition of 'industry'. Management is held to be an 'industry' as
defined under section 2 (j) of the Industrial Disputes Act, 1947.
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8. My ISSUEWISE findings are as under :
ISSUE NO.1
Whether the workman had abandoned his duties, if yes, from what date and its effect?
OPM.
ISSUE NO.2
Whether the services of the workman were terminated illegally and/or unjustifiably by
the Management? OPW.
Both the issues are being taken up under a common discussion in as much as
decision of Court on one issue will determine the decision of the Court on another issue.
MW1 Mr. Ashok Kumar Singh in his crossexamination deposed that, ".... It is correct
that the workman had worked with the management for the last five years continuously
and his last drawn wages were Rs.8000/p.m. ....". As per workman his services were
orally terminated on 01.12.2009 by the management after having annoyed with the
demands of workman for statutory benefits such as bonus etc. On the other hand as per
management workman started absenting himself from duties w.e.f. 01.12.2009 in an
unauthorised and illegal manner and has abandoned his services with the management
on his own free will and accord. As regard statutory benefits, management pleaded that
employees of the management / institute are appointed only on a lump sum consolidated
salary on the negotiation basis and no other allowances are provided. Thus, admittedly
management was not providing statutory benefits / allowances to its employees /
workman. To that extent grievance(s) of workman can be said to be well justified.
Workman immediately after alleged termination of his services on 01.12.2009 made
complaint dated 14.12.2009 (Ex. WW1/1) to Assistant Labour Commissioner. As per
report (Ex. WW1/2) of labour inspector establishment of management was visited to by
labour inspector on 14.12.2009; management was called to the office on 21.12.2009 by
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issuing a notice; Mr. Varun Aggarwal and Mr. Abhishek Mishra attended the office on
21.12.2009; 29.12.2009 and 13.01.2010 with authority letter; on 29.01.2010 Mr. Vikrant
Gumre attended the office with authority letter and admitted the workman to be an
employee of the management but refused to pay the earned wages and also refused to
reinstate the workman in service. Labour inspector concluded that management does not
want to settle the matter and advised the workman to file claim before the Conciliation
Officer. It is pertinent to note that there is no crossexamination of workman on report
of labour inspector Ex. WW1/2. Thus, management can be taken to have admitted the
contents of report (Ex. WW1/2) of the labour inspector. Contrary to report of labour
inspector (Ex.WW1/2), management in its WS pleaded that in the Office of Deputy
Labour Commissioner, representative of management appeared and requested the
claimant to resume his duties with immediate effect but workman did not come. But
workman has not been, even suggested, in his crossexamination in terms of above
pleadings of the management. Management has not specifically named the representative
who had so appeared and requested the workman to resume his duties. Report Ex.
WW1/2 does not mention the name of MW1 Mr. Ashok Kumar Singh. MW1 Mr. Ashok
Kumar Singh in his crossexamination deposed as under :
"....Qus. Do you know Mr. Abhishek Mishra?
Ans. There was one Driver with the name of Abhishek Mishra.
I do not know any person with the name of Varun Aggarwal and Vikrant.
Qus. It is put to you that before the Labour Inspector namely Sh S K Chopra,
Sh. Varun Aggarwal, Vikrant and Abhishek Mishra refused to take back the
workman on duty?
Ans. I can not say anything....."
Thus, MW1 Mr. Ashok Kumar Singh himself did not appear and request the
workman to rejoin his duties and also there is no denial about the appearance of Mr.
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Varun Aggarwal, Vikrant and Abhishek Mishra before the labour inspector. MW1 Mr.
Ashok Kumar Singh simply deposed that he does not know any person with the name of
Varun Aggarwal and Vikrant and did not depose that persons with these names were
never employed by management & management never issued authority letters in their
favour as per report Ex. WW1/2. The depositions of MW1 Mr. Ashok Kumar Singh that,
"......... Labour Inspector never visited the office of the management in connection with
the complaint made by the workman to the labour department...." are not reliable in
view of report Ex. WW1/2 and failure of crossexamination of workman, by the
management, as regards report Ex. WW1/2. The alleged offer given by the management
to the workman to resume his duties also cannot benefit the management in the facts and
circumstances in this case, in as much as, the said offer was not unconditional offer but
the same was without prejudice to right of the management to take appropriate and
necessary disciplinary action against the workman.
Stand of management that it never received demand notice Ex. WW1/3A is also
not believable in view of postal registry receipt (Ex. WW1/4) of the same date as Ex.
WW1/3A and also the ADCard Ex. WW1/5 which bears rubber stamp of the name of
the management with the postal rubber stamp of Ramesh Nagar Post Office, Delhi.
MW1 Mr. Ashok Kumar Singh in his crossexamination deposed as under :
"....... The management did not received notice Ex. WW1/3A. I can not tell
who signed the AD card Ex. WW1/5. Rubber stamp on Ex. WW1/5 does not
pertains to the management.
Qus. Kindly clarify what observations in the rubber stamp prompted to you
to answer in the last question in negative?
Ans. Size of the rubber stamp used by the management is smaller in size,
however shape wise (Circular) it is a same as on Ex. WW1/5.
It is wrong to suggest that I am deposing falsely while replying the last
answer....."
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But management did not produce its rubber stamp to prove that rubber stamp on
Ex. WW1/5 did not pertain the management. Thus, Management can be said to have
been duly served with demand notice Ex. WW1/3A. But management did not reply the
demand notice Ex. WW1/3A. In view of Ex. WW1/3A, Ex. WW1/4 and Ex. WW1/5 the
depositions made by workman in his crossexamination that, ".... It is correct that I have
not sent any demand notice prior to file the present claim case....." cannot benefit the
management in any manner. Workman made complaint Ex. WW1/1, dated 14.12.2009,
through union &, thus, may be that workman sent the demand notice through the said
union. Also possibility of workman making above depositions due to ignorance of law /
legal terminology cannot be ruled out altogether. In any case there is positive evidence
on judicial file in the form of Ex. WW1/3A, Ex. WW1/4 and Ex. WW1/5 regarding
management having been served with the demand notice.
AT THIS JUNCUTRE, it would be pertinent to refer to certain case laws as
regards plea of abandonment of service by the workman on his own accord as taken by
management.
Hon'ble Supreme Court of India in in the case law reported as G. T. Lad & Ors.
V/s. Chemical and Fibres of India Ltd. (1979) 1 SCC 590 observed / ruled as under:
"5a. Re Question No.1: ........According to Black's Law Dictionary
'abandonment' when used in relation to an office means 'voluntary
relinquishment'. It must be total and under such circumstances as clearly to
indicate an absolute relinquishment. The failure to perform the duties pertaining
to the office must be with actual or imputed intention, on the part of the officer
to abandon and relinquish the office. The intention may be inferred from the acts
and conduct of the party, and is a question of fact Temporary absence is not
ordinarily sufficient to constitute an 'abandonment of office'.
6. From the connotations reproduced above it clearly follows that to
constitute abandonment, there must be total or complete giving up of duties so as
to indicate an intention not to resume the same. In Buckingham & Carnatic Co.
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v. Venkatish (1964) 4 SCR 265, it was observed by this Court that under
common law an inference that an employee has abandoned or relinquished
service is not easily drawn unless from the length of absence and from other
surrounding circumstances an inference to that effect can be legitimately drawn
and it can be assumed that the employee intended to abandon service.
Abandonment or relinquishment of service is always a question of intention, and
normally, such an intention cannot be attributed to a employee without adequate
evidence in that behalf. Thus, whether there has been a voluntary abandonment
of service or not is a question of fact which has to be determined in the light of
the surrounding circumstances of each case."
Also, Hon'ble Delhi High Court in the case law reported as Shri Shiv Kumar V/s.
Hansita 2011 LLR 13 observed / ruled as under:
"8. It is a settled legal position that the abandonment of service cannot be
readily inferred. Abandonment of service is a question of intention which can be
gathered from the totality of the facts and circumstances of each case. There has
to be a clear evidence on record to show that despite grant of reasonable
opportunity to the employee by the management, he failed to join back his duties
without any sufficient reasons and therefore in the absence of any such cogent
and convincing evidence, voluntarily abandonment on the part of the employee
cannot be readily inferred.......".
Further, Hon'ble Delhi High Court in the case law reported as M/s Fateh Chand
V/s. Presiding Officer, Labour Court and Anr. MANU/DE/0137/2012 observed / ruled as
under:
"7. ........... It is also no more res integral that even in a case of unauthorized
absenteeism or to prove abandonment of service on the part of the workman the
management must place on record necessary material to prove that enough
efforts were made by it to call upon the workman to resume back his duty and the
workman has shown his clear reluctance for the same....................
Undoubtedly, unauthorized absenteeism is a ground for termination ad has been
held to be misconduct in a catena of judgments. But when is it an unauthorized
absenteeism is to be determined from the facts and circumstances of each
case.....".
8. It is also a settled legal position that abandonment of service is different
from absenteeism. Abandonment of service is the voluntarily relinquishment of
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ones services with the intention not to resume the same. It is a matter of inference
to be drawn from the facts and circumstances of each case and mere absenteeism
for a continuous period does not mean that the employee has abandoned his
service. The management has to bring on record sufficient material to show that
the employee has abandoned the service and abandonment cannot be attributed to
the employee without there being sufficient evidence. On the failure to report for
duty, the management has to call upon the employee and if he refuses to report,
then an enquiry is required to be ordered against him and accordingly action taken.
In the absence of anything placed on record by the petitioner management, no
presumption against the respondent can be drawn.........".
Stand of management that it had sent MW2 Mr. Pawan Kumar Singh to the workman for asking the workman to resume his duties is also not worth reliance. Management in the WS pleaded that on 04.12.2009 workman was not found at home and someone present there told that workman has gone on duties. MW2 Pawan Kumar Singh deposed in the same fashion in para. 2 of his affidavit Ex. MW2/A. But in his cross examination MW2 Pawan Kumar Singh deposed as under: "......... son of the workman replied that workman had gone for work. I cannot tell the name of the son of the workman who had met me. Que: Whether whatever you have deposed just now, you have to your counsel prior to preparation of Ex. MW2/A?
Ans: Yes. .....".
In view of above deposition MW2 Mr. Pawan Kumar Singh can be said to have made improvements upon his version regarding his alleged visit at the home of workman on 04.12.2009. Also depositions of MW2 Mr. Pawan Kumar Singh ".....On 06.12.2009 I had met MR. Nand Lal at his house who had told me that he would not join the office and he would get his case decided by the court.." are not consistent with the pleadings of management in its WS in as much as management in the WS pleaded that on 06.12.2009 claimant / workman refused to resume his duties and threatened to implicate the management in a false claim case. It is not out of place to mention here that workman Page 11 to 15 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD.DELHI.12.05.2014 Nand Lal Vs. Indian Institute of Aeronautics DID No. 95/12 filed his direct industrial dispute on 03.02.2012. MW2 Mr. Pawan Kumar Singh even did not tell the name of the son of workman whom he allegedly met on 04.12.2009. Also, depositions of MW1 Mr. Ashok Kumar Singh & MW2 Mr. Pawan Kumar Singh cannot be said to be consistent with each other regarding visit of MW2 Mr. Pawan Kumar Singh to the home of workman on 04.12.2009 and 06.12.2009 in view of following depositions of MW1 Mr. Ashok Kumar Singh : "...Qus. Kindly tell whether the management had sent notice to the workman when he allegedly stopped reporting to duties as deposed by you? Ans. Caretaker Sh. Pawan Kumar Singh had visited the house of workman at Prem Nagar with a copy of the notice twice. The caretaker was informed by the person available at the given address that the workman was gone for duties at another place. I have not filed on record copy of said notice nor I possessed the same with me right now. It must be definitely available in the office. The person available did not take the said notice submitting that same shall be received by Nand Lal, workman.
It is wrong to suggest that I am deposing falsely in reply to last question in as much there is no reference to any such notice in the pleadings as well as in the affidavit."
Notably, MW1 Mr. Ashok Kumar Singh did not depose that son of workman had met MW2 Mr. Pawan Kumar Singh. Also, MW2 Mr. Pawan Kumar Singh did not at all depose about the notice, regarding which MW1 Mr. Ashok Kumar Singh has made above depositions. Even the WS of management is silent about the notice referred to by MW1 Mr. Ashok Kumar Singh in his crossexamination. No such notice has been produced on judicial file. Also, admittedly, no chargesheet was served upon the workman.
Further, it is noted that management in its WS pleaded that management learnt that workman has already taken employment of some other management immediately after abandoning the services with the management, but management has absolutely Page 12 to 15 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD.DELHI.12.05.2014 Nand Lal Vs. Indian Institute of Aeronautics DID No. 95/12 failed to prove / establish its stand on judicial file. Even the name of the alleged other management has not been pleaded in WS / suggested to workman in his cross examination.
In view of the above detailed discussion, by applying the principle of preponderance of probabilities, it can be said that management terminated the services of workman on 01.12.2009 and management has failed to establish that workman himself abandoned his services with management. This being a case of termination of services of workman, the same is covered under section 2A of the Industrial Disputes Act, 1947. Services of workman were terminated on 01.12.2009. Workman filed this claim on 03.02.2012 directly in Court. Vide Ex. WW1/3 workman approached the Conciliation Officer prior to filing claim before the Court so as to comply the provisions of section 2 A (2) of the Industrial Disputes Act, 1947. Claim of the workman is within limitation under section 2 A (3) of of the Industrial Disputes Act, 1947. Thus, claim filed by workman is found to be maintainable under section 2A of the Industrial Disputes Act, 1947. Issue no.1 is decided against the management and issue no.2 is decided in favour of workman.
ISSUE NO.3: Relief.
Merely because, issue no.2 has been decided in favour of workman does not mean that workman is automatically entitled to reinstatement in service with the management with full / partial back wages. Each case deserves to be decided keeping in view entirety of the facts and circumstances of this case, particularly, the conduct of both the parties. Workman in his cross examination deposed as under: "..... I am not working anywhere as of now. My family comprises my wife and four children. Three of them are school going and one is married. I Page 13 to 15 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD.DELHI.12.05.2014 Nand Lal Vs. Indian Institute of Aeronautics DID No. 95/12 have my own house. I am working with my brother by selling peanuts. It is wrong to suggest that I am employed as a driver elsewhere. It is wrong to suggest that I am not working with my brother........". In view of above depositions, admittedly, workman is working with his brother by selling peanuts. Also it has remained totally unexplained from the side of workman as to how workman is able to meet the expenses of his family if he is totally unemployed. Workman after the termination of his services resorted to legal remedies by sending complaint Ex.WW1/1 dated 14.12.2009, demand notice Ex.WW1/3A dated 13.01.2010 and making claim before conciliation officer Ex.WW1/3 dated 01.02.2010 but, thereafter, for no explanation filed the direct industrial dispute before the Court on 03.02.2012. If the workman was totally unemployed after the termination of his services by the management on 01.12.2009, one fails to understand as to why workman filed this direct industrial dispute before the Court after so much delay till 03.02.2012. In such circumstances, possibility of workman being gainfully employed elsewhere cannot be ruled out altogether. Further, the possibility of workman being a driver having good experience remaining unemployed throughout the intervening period in a city like Delhi is the least. Such delay in invoking the jurisdiction of the Court, to my mind, also disentitles the workman for reinstatement in service with the management. The reinstatement in service also deserves to be declined in as much as, keeping in view the stand of the management in the WS, the grievance of the workman will remain in existence because management is not making payment of bonus / other statutory benefits / allowances to its employees.
In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the tune of Rs.75,000/ (Rupees Seventy Five Thousand only) to the workman for illegal / unjustified termination of his services by the Page 14 to 15 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD.DELHI.12.05.2014 Nand Lal Vs. Indian Institute of Aeronautics DID No. 95/12 management and for consequences thereof / back wages would meet the ends of justice. If this amount of Rs.75,000/ (Rupees Seventy Five 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.8,000/ (Rupees Eight Thousand only) is also awarded to workman as costs of litigation payable by the management.
9. Reference is answered accordingly.
10. A copy of the award be sent to Office of the Deputy Labour Commissioner (District West) for further necessary action.
11. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 12.05.2014
(ANAND SWAROOP AGGARWAL)
POLCXI, Karkardooma Courts, Delhi
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