Delhi District Court
Sunil David vs Ms New Delhi Young Mens Christain ... on 29 February, 2024
IN THE COURT OF RITU SINGH,
ADDL. DISTRICT & SESSIONS JUDGE,
PRESIDING OFFICER : LABOUR COURT - IV,
ROUSE AVENUE COURTS : NEW DELHI.
LIR No. 2870/16
CNR No.DLCT13-001292-2013
IN THE MATTER OF:-
Sh. Sunil David
S/o Sh. Sunny David
R/o 41-D, Blck-11,
DDA Slum Flats,
Sarai Kale Khan
New Delhi-110013 ......Claimant
Versus
The Management of
New Delhi Young Men's Christian Association
Jai Singh Road,
New Delhi-110001
....... Management
Date of institution of the case: 01.06.2013
Date of final arguments : 15.02.2024
Date of passing the Award :29.02.2024
Decision :Award Passed
AWARD
1. Vide this Award, this Court shall decide the
Industrial Dispute which was referred by Deputy Labour
Commissioner (New Delhi District) on a complaint filed by the
aforesaid claimant against the Management, vide reference no.
F.No.C-61/LO/NDD/2012/ 24/118 dated 20.02.2013, u/s 10(1)(c)
and 12 (5) of The Industrial Disputes Act, 1947, wherein the
following reference was to be answered :-
"Whether the service of Shri Sunil David S/o Shri
Sunny David have been illegally and or
unjustifiably terminated by the management and if
so, to what relief is he entitled and what directions
LIR No.2870/16.; Sunil David Vs The Management
of New Delhi Young Men's Christian Association Page No. 1 of 45
are necessary in this regard?".
2. Notice of the reference was issued to the claimant.
Pursuant thereto, the claimant appeared and filed his statement of
claim, claiming therein that he was appointed as a Fitness
Instructor in New Delhi Young Men's Christian Association
(hereinafter referred to as YMCA) initially at a consolidated
salary of Rs.3,500/- per month vide appointment letter dated
12.12.2013 though it was written therein that he has been
appointed as 'Part time' Fitness Instructor, however, he used to
work full time in the Gym of YMCA situated at Nizamuddin,
Delhi. His duty hours were from 6:00 a.m to 10:00 a.m. in the
morning and 5 pm to 9 pm in the evening. It is further alleged
that in the appointment letter dated 12.12.2003, it was mentioned
that he was appointed for a period of 12 months however,
workman continued to work beyond the period of 12 months.
3. It is further stated in statement of claim of workman
that vide another 'Letter of Appointment' dated 13.04.2005, the
workman was appointed at the post of Fitness Instructor in the
New Delhi YMCA w.e.f. 01.04.2005 at the basic salary of
Rs.2500/- per month and was put under the pay scale of Rs.2500-
200-3500-275-4875-375-6750-500-9250 (W-V) and was offered
and appointed at a gross salary of Rs.5923/- per month. It is
further stated that workman discharged his duties diligently and
efficiently and in pursuance thereto, the management vide its
letter dated 24.03.2006 titled as 'Letter of Confirmation'
confirmed his appointment w.e.f. 01.04.2006.
LIR No.2870/16.; Sunil David Vs The Management
of New Delhi Young Men's Christian Association Page No. 2 of 45
4. It is further alleged that in the month of June 2011 he was
asked to work in YMCA Public School, New Delhi and to
perform the duties from 8:00 a.m to 1:00 p.m by assisting the
Headmistress in organizing morning assembly and sports
activities and thereafter, from 1:00 pm to 4:00 p.m to assist in the
Administration of school and though the workman had been
performing the above mentioned duty from June 2011, however,
the workman was given written confirmation of employment and
job in YMCA Public School vide letter dated 13.09.2011 which
contains the job description for the workman.
5. It is further alleged that since June 2011 workman was
performing his duties diligently and efficiently but despite that
vide letter dated 04.10.2011, the management terminated his job
w.e.f. 04.10.2011 by stating that New Delhi YMCA, Nizamuddin
has decided to close down the Fitness Centre w.e.f. 01.06.2011
and decided to abolish the post of Fitness Instructor.
6. It is further alleged that the management issued a cheque
bearing no.191837 dated 03.10.2011 drawn on Axis Bank Ltd.
amounting to Rs.53,139/-, which included salary for October
2011, one month's notice pay and encashment of 88 ½ days
earned leave towards full and final settlement of all dues of
workman. The claimant had issued legal demand notice dated
27.10.2011 to the management seeking his reinstatement in
service by management with continuity of service and full back
wages which was not replied by management nor the services of
the claimant was reinstated. Aggrieved by his illegal termination,
the workman filed his claim petition before the Conciliation
Officer, but no settlement could be arrived at between the parties
LIR No.2870/16.; Sunil David Vs The Management
of New Delhi Young Men's Christian Association Page No. 3 of 45
and hence the present reference.
7. The claimant claims to be unemployed from the date
of his illegal termination i.e. 04.10.2011 and has claimed that the
termination of his services was illegal and unjustified as the
management has violated the provisions of I.D. Act. It is prayed
that an award be passed in favour of claimant and against
management directing the management to reinstate him with full
back wages and continuity in service with all consequential
benefits.
8. Notice of the statement of claim was issued to the
management. Management had entered appearance through its
AR.
9. Vide order dated 18.03.2016, the following issues
were framed in view of pleadings of the parties and terms of
reference and issue no.3 herein was directed to be treated as
preliminary issue:
(i) Whether the workman does not fall within the
ambit of the definition of workman as the nature of
his duties were creative and supervisory as claimed
by the management? OPM
(ii) Whether the services of the workman were
terminated by the management on abolishing
the post of Fitness Instructor vide letter dated
04.10.2011 on account of the closure of Fitness
Centre/ Gymnasium owing to the change of land
use by giving him one month's pay in lieu of notice,
if so, its effect? OPM
(iii) Whether the statement of claim filed by the
workman is maintainable as neither the
statement of claim nor verification is signed by
the workman nor by the AR of the workman?
OPW
LIR No.2870/16.; Sunil David Vs The Management
of New Delhi Young Men's Christian Association Page No. 4 of 45
(iv) Whether the claim filed by the workman is bad for
non service of demand notice? OPM
(v) Whether the claimant has not come to the Court
with clean hands and has suppressed the material
facts, if so, its effect? OPM
(vi) Whether the services of the workman were
terminated by the management illegally and
unjustifiably? OPW
(vii) Whether the workman is entitled to the relief
claimed in the statement of claim? OPW
(viii) Relief.
10. During further trial of the case, arguments on
preliminary issue i.e. issue no.3 hereinabove was heard and
adjudicated upon by Ld. Predecessor of this Court on
14.07.2016 and issue no.3 was accordingly heard and disposed
off.
11. Management had filed written statement on
30.09.2016, wherein it was contended that the workman was
employed as Fitness Instructor by the management and he had
been performing the duties of the nature of creativity and
supervision he does not fall within the ambit of the definition of a
"workman" as defined under Section 2(s) of Industrial Dispute
Act. It is further contended that the services of the claimant have
been terminated by the management by abolishing the post of
Fitness Instructor, vide letter dated 04.10.2011 on account of the
closure of the Fitness Centre/ Gymnasium owing to change of
land use by giving him one month's pay in lieu of notice.
Management in its written statement has averred that claimant
has not served any legal and valid demand notice upon the
management to raise any Industrial Dispute.
LIR No.2870/16.; Sunil David Vs The Management
of New Delhi Young Men's Christian Association Page No. 5 of 45
12. It is further contended on behalf of management that
claimant was never asked to perform such duties at YMCA
Public School by any competent person as such also in case he
has ever done such job it was without any authority and claimant
was never a part of the YMCA Public School. It is further alleged
that the letter dated 13.09.2011 issued, if any, by Associate
General Secretary, is without jurisdiction who was not authorized
and competent to issue such letter dated 13.09.2011 thereby
authorizing claimant to assist Head Mistress in organizing
morning assembly, sport activities and to look after the
maintenance of building.
13. Management in its written statement has denied that
claimant was ever posted as an employee by any competent
person to work at YMCA Public School or that he ever
performed any such duty and further denied that claimant was
working in YMCA Public School or was assisting in its
Administration or in looking after the building maintenance of
the school. The management denied the other averments of the
statement of claim and lastly prayed to dismiss the claim petition.
14. The claimant has filed Rejoinder on 04.11.2016 to
the written statement of the workman wherein claimant has
reiterated the contents of statement of claim filed by him.
15. Thereafter, vide order dated 11.01.2017, the
following issues were framed in view of pleadings of the parties
and terms of reference :-
LIR No.2870/16.; Sunil David Vs The Management
of New Delhi Young Men's Christian Association Page No. 6 of 45
(i) Whether the claimant/workman is not a
workman as defined under Section 2 (s) of the
Industrial Disputes Act, 1947 (as amended up to
date)?
(ii) Whether the services of the claimant/workman
have been terminated by the management on
account of abolition of the post of Fitness
Instructor vide letter dated 04.10.2011 on account
of the closure of the Fitness Centre/Gymnasium
owing to the change of land use by giving him the
one month's pay in lieu of notice as claimed by
the management, if so, its effect? OPM
(iii) Whether the claim of the claimant/workman is
bad for non service of demand notice? OPM
(iv) Whether the services of the workman have been
terminated by the management illegally and/or
unjustifiably? OPW
(v) Whether the claimant/workman is entitled to the
relief claimed in the statement of claim? OPW
(vi) Relief.
16. The case was, thereafter, fixed for evidence of
claimant.
17. In order to prove the case, the claimant appeared as
witness and filed in evidence, his examination in chief by way of
affidavit Ex.WW1/A wherein he reiterated the contents of
statement of claim on solemn affirmation. Besides this, he had
also placed on record the following documents :-
(i) Ex.PW1/1 is the copy of the appointment letter
dated 12.12.2003 issued by the General Secretary of management
in favour of workman/claimant.
(ii) Ex.PW1/2 is the copy of the appointment letter
LIR No.2870/16.; Sunil David Vs The Management
of New Delhi Young Men's Christian Association Page No. 7 of 45
dated 13.04.2005 issued by the Officiating General Secretary of
management in favour of workman/claimant.
(iii) Ex.PW1/3 is the copy of letter of confirmation dated
24.03.2006 issued by the General Secretary of management in
favour of workman/claimant.
(iv) Ex.PW1/4 is the copy of letter dated 13.09.2011
issued by Associate General Secretary of management in favour
of workman/claimant.
(v) Ex.PW1/5 is the copy of letter dated 04.10.2011
issued by General Secretary of management to the workman/
claimant regarding close down the Fitness Centre w.e.f.
01.06.2011 in view of the observations of L&D.
(vi) Ex.PW1/6 is the legal demand notice dated
27.10.2011 sent by workman/claimant to the management.
(vii) Ex.PW1/7 is the original postal receipt and
Ex.PW1/8 is the AD receipt vide which the legal demand notice
dated 27.10.2011 was sent to the management.
(viii) Ex.PW1/9 is the copy of Statement of Claim filed
before the Conciliation Officer, Govt. of NCT of Delhi, New
Delhi Zone, New Delhi.
(ix) Ex.PW1/10 is the copy of reply filed on behalf of
management to the Statement of Claim filed before the
Conciliation Officer, Govt. of NCT of Delhi, New Delhi Zone,
New Delhi.
18. The management has examined Sh. John Prakash as
MW-1 and filed his evidence affidavit Ex. MW1/A wherein he
reiterated the contents of written statement.
19. This Court has heard the final arguments addressed
LIR No.2870/16.; Sunil David Vs The Management
of New Delhi Young Men's Christian Association Page No. 8 of 45
by AR for both the sides and also gone through the documents
and materials on record. The issue-wise findings of this Court are
as under:
ISSUE NO.1
(i) Whether the claimant/workman is not a
workman as defined under Section 2 (s) of the
Industrial Disputes Act, 1947 (as amended up
to date)?
20. The onus to prove this issue is upon the claimant.
21. In order to discharge this onus, the claimant has
examined himself as WW-1 and tendered his evidence by way of
affidavit Ex.WW1/A in which he had testified that he was
initially appointed as "part-time" Fitness Instructor in New Delhi
YMCA vide appointment letter dated 12.12.2003 Ex.WW1/1 and
he has contended that he was "full-time" Instructor, though
abovesaid documents states that he was "part-time" Instructor
and that subsequently vide Letter of Appointment dated
13.04.2005 Ex.PW1/2, he was appointed as Fitness Instructor in
New Delhi YMCA, Centre for Development of Youth and
Challenged, Nizamuddin East w.e.f. 01.04.2005 at basic salary of
Rs.2500/- per month and gross-salary of Rs.5923/- per month
and was on probation period of one year and vide letter of
confirmation dated 24.03.2006 Ex.PW1/3, management had
confirmed his services w.e.f. 01.04.2006, though it has been
contended by the workman that his confirmation vide aforesaid
letter of confirmation dated 24.03.2006 should have resulted in
his confirmation from 12.12.2003, that is, his initial date of
appointment with management.
LIR No.2870/16.; Sunil David Vs The Management
of New Delhi Young Men's Christian Association Page No. 9 of 45
22. On the other hand, the management has examined
Sh. John. Prakash, Head-HR of management, as MW1, who has
adduced his evidence by way of affidavit Ex.MW1/A, wherein, it
has been admitted by management that claimant was appointed
as "Fitness Instructor" by the management and that claimant was
inducted as regular employee by management w.e.f. 01.04.2005
and it is admitted that before his induction as regular employee,
claimant was working as "Fitness Instructor" with management
on part-time basis and had four hours of duty on each day as
"Fitness Instructor" and that he was confirmed in service w.e.f.
01.04.2006, vide letter of confirmation dated 24.03.2006 and that
the claimant was not working on regular basis w.e.f. 12.12.2003.
23. Thus, from conjoint reading of oral and
documentary evidence adduced by claimant and management on
record, there is no dispute to facts that claimant was appointed as
"Fitness Instructor" by New Delhi YMCA, Centre for
Development of Youth and Challenged, Nizamuddin, Delhi vide
its appointment letter dated 12.12.2003 Ex.WW1/1 and was
subsequently made "full-time" Fitness Instructor at same post
and place of posting, vide letter dated 13.04.2005 Ex.PW1/2, by
the management.
24. However, it has been contended by Ld. AR for
management that claimant Sunil David does not fall within
statutory definition of "workman" under Industrial Disputes Act
as he was employed as "Fitness Instructor" in Gymnasium of
New Delhi YMCA, Nizamuddin Centre and therefore, he was
performing duties of only creativity and of supervision and
therefore does not fall within ambit of definition of 'workman' as
LIR No.2870/16.; Sunil David Vs The Management
of New Delhi Young Men's Christian Association Page No. 10 of 45
defined u/s 2 (s) of Industrial Disputes Act and has relied on
judgment of the President, Rashtriya Adarsh Vidyalya Shikshan
Mandal and another vs. Baban & Anr. 2016 (4) All MR 934 , to
buttress his submissions.
25. On the other hand, Ld. AR for the claimant has
argued that the claimant was only a Fitness instructor in the
Gymnasium/Fitness Centre of management at its Nizamuddin
Centre, where he was discharging skilled manual work while
assisting the members of the Gym in use of equipments at the
Gym and in physical activities of the members of the Gym and
that claimant Sunil David has denied that he was discharging any
academic or teaching job, during the course of his employment
with the management and therefore it is pleaded on behalf of
claimant that claimant is well covered within the ambit of
definition of workman u/s 2 (s) of Industrial Disputes Act.
26. At this stage, it is relevant to refer to statutory
definition of the term 'workman' which has been defined in
Section 2 (s) of Industrial Disputes Act, as under :
"Workman means any person (including an
apprentice) employed in any industry to do any
manual, unskilled, skilled, technical, operational,
clerical or supervisory work for hire or reward,
whether the terms of employment be express or
implied, and for the purposes of any proceeding
under this Act in relation to an industrial dispute,
includes any such person who has been dismissed,
discharged or retrenched in connection with, or as a
consequence of, that dispute, or whose dismissal,
discharge or retrenchment has led to that dispute,
but does not include any such person-
(i) who is subject to the Air Force Act, 1950
(45 of 1950), or the Army Act, 1950 (46 of 1950),
or the Navy Act, 1957 (62 of 1957); or
LIR No.2870/16.; Sunil David Vs The Management
of New Delhi Young Men's Christian Association Page No. 11 of 45
(ii) who is employed in the police service or as
an officer or other employee of a person; or
(iii) who is employed mainly in a managerial or
administrative capacity; or
(iv) who, being employed in a supervisory
capacity, draws wages exceeding (ten thousand
rupees) per mensem or exercises, either by the
nature of the duties attached to the office or by
reason of the powers vested in him, functions
mainly of a managerial nature."
27. It is also pertinent to refer to landmark judgment of
the seven-Judge Bench of Hon'ble Supreme Court of India in
Bangalore Water Supply and Sewerage Board Vs. A. Rajappa
and others AIR 1964 SC 1671, wherein it was held that :
"Educational institution is an industry in terms of
Section 2(j) of the ID Act, though not all of its
employees are workmen. The premises relied on is that
the bulk of the employees in the university is the
teaching community. Teachers are not workmen and
cannot raise disputes under the Act.
The test is not the predominant number of employees
entitled to enjoy the benefits of the Act. The true test is
the predominant nature of the activity. In the case of the
university or an educational institution, the nature of the
activity is, ex hytphesis, education which is a service to
the community.
Secondly there are a number of other activities of the
University Administration, demonstrably industrial
which are severable although ancillary to the main
cultural enterprise. For instance, a university may have
a large printing press as a separate but considerable
establishment. It may have a large fleet of transport
buses with an army of running staff. It may have a
tremendous administrative strength of officers and
clerical cadres. It may have karamcharis of various
hues.
As the Corporation of Nagpur has effectively ruled,
these operations, viewed in severally or collectively,
may be treated as industry. It would be strange, indeed,
if a university has 50 transport buses, hiring drivers,
conductors, cleaners and workshop technicians. How
are they to be denied the benefits of the Act, especially
LIR No.2870/16.; Sunil David Vs The Management
of New Delhi Young Men's Christian Association Page No. 12 of 45
when their work is separable from academic teaching,
merely because the buses are owned by the same
corporate personality? We find, with all defence, little
force in this process of nullification of the industrial
character of the University's multi-form operations."
28. Thus, it was held by seven-Judge Bench of Hon'ble
Supreme Court of India in Bangalore Water Supply and
Sewerage Board Vs. A. Rajappa and others (Supra) that :
"when work of employees of University is separable
from academic teaching like those of hired drivers,
conductors, cleaners and worshop technicians, it
would be strange if they are denied benefit of
Industrial Disputes Act.
29. It was further held in Bangalore Water Supply and
Sewerage Board Vs. A. Rajappa and others (Supra) that in an
establishment like University, there are number of other
activities, which are server-able although ancillary to main
enterprise.
30. Subsequently in A. Sundarambal Vs. Govt. of Goa,
Daman & Diu A. Sundarambal v. Govt. of Goa, Daman & Diu,
1988 4 SCC 42, wherein Hon'ble Supreme Court of India has laid
down the legal principle that while educational institutions
come within the ambit of "industry", a teacher is not
"workman" for the purpose of the ID Act and the relevant
extract of the judgment of Sundarambal Vs. Govt. of Goa,
Daman & Diu A. Sundarambal v. Govt. of Goa, Daman & Diu,
1988 4 SCC 42 is reproduced herein:
"The question for consideration is whether even after the
inclusion of the above two classes of employees in the
definition of the expression 'workman' in the Act a teacher
in a school can be called a workman we are of the view that
the teachers employed by educational institutions whether
the said institutions are imparting primary, secondary,
LIR No.2870/16.; Sunil David Vs The Management
of New Delhi Young Men's Christian Association Page No. 13 of 45
graduate or post graduate education cannot be called as
'workmen' within the meaning of Section 2(s) of the Act.
Imparting of education which is the main function of
teachers cannot be considered as skilled or unskilled manual
work or supervisory work or technical work or clerical
work. Imparting of education is in the nature of a mission or
a noble vocation. A teacher educates children, he moulds
their character, builds up their personality and makes them
fit to become responsible citizens. Children grow under the
care of teachers. The clerical work, if any they may do, is
only incidental to their principal work of teaching. We agree
with the reasons given by the High Court for taking the
view that teachers cannot be treated as 'workmen' as defined
under the Act. It is not possible to accept the suggestion that
having regard to the object of the Act, all employees in an
industry except those falling under the four exceptions (i) to
(iv) in section 2(s) of the Act should be treated as workmen.
The acceptance of this argument will render the words 'to
do any skilled or unskilled manual, supervisory, technical or
clerical work' meaningless. A liberal construction as
suggested would have been possible only in the absence of
these words. The decision in May and Baker (India) Ltd. vs.
Their Workmen. (supra) precludes us from taking such a
view. We, therefore, hold that the High Court was right in
holding that the appellant was not a 'workman' though the
school was an industry in view of the definition of
'workman' as it now stands."
31. Further, the Constitution Bench of Hon'ble Supreme
Court of India in the case of H.R. Adyanthaya Vs. Sandoz (India)
Ltd., (1978) 2 SCC 213, held as under :
"We thus have three Judge Bench decisions which have
taken the view that a person to be qualified to be a workman
must be doing the work which falls in any of the four
categories, viz, manual, clerical, supervisory or technical
and two two-judge Bench decisions which have by referring
to one or the other of the said three decisions have reiterated
the said law.
As against this, we have three three-judge
Bench decisions which have without referring to the
decisions in May & Baker, WIMCO and Bunnah Shell cases
(supra) have taken the other view which was expressly
negatived, viz., if a person does not fall within the four
exceptions to the said definition he is a workman within the
meaning of the ID Act. These decisions are also based on the
facts found in those cases. They have, therefore, to be
confined to those facts.
Hence the position in law as it obtains today is
that a person to be a workman under the ID Ac must be
LIR No.2870/16.; Sunil David Vs The Management
of New Delhi Young Men's Christian Association Page No. 14 of 45
employed to do the work of any of the categories, viz.,
manual, unskilled, skilled, technical, operational, clerical or
supervisory. It is not enough that he is not covered by either
of the four exceptions to the definition. We reiterate the said
interpretation."
32. It was thus authoritatively laid down in H.R.
Adyanthaya Vs. Sandoz (India) Ltd. (Supra) that "the position
in law as it stands today is that a person to be a workman
under ID Act must be employed to do the work of any of
the categories i.e. manual, unskilled, skilled, technical,
operational, clerical or supervisory and that it is not
enough that he is not covered either of the four exceptions
to the definition ."
33. In the instant case, the claimant herein Sunil David
was employed as "Fitness Instructor" in New Delhi YMCA,
Centre for Development of Youth & Challenged, Nizamuddin
East, initially on part-time basis since 12.12.2003 and
subsequently w.e.f. 01.04.2005, he was appointed on "full-time"
basis as Fitness Instructor by the management and his
appointment with the management as "Fitness Instructor" was
confirmed vide letter dated 24.03.2006 Ex.PW1/3 of the
management.
34. It is relevant to note that the HR-Head of
management Sh. John Prakash had stated that the management of
YMCA is engaged in multifarious activities at its complexes
which are at Nizamuddin and Jai Singh Road in Delhi and at
Greater Noida, UP. Further it is admitted fact that the
complex/branch of YMCA New Delhi at Nizamuddin, Delhi has
a hostel with catering facilities, a Gymnasium and that later in
LIR No.2870/16.; Sunil David Vs The Management
of New Delhi Young Men's Christian Association Page No. 15 of 45
2008-2009, a public school was also started at New Delhi
YMCA, Nizamuddin Centre. Therefore, it is admitted position
that New Delhi YMCA Nizamuddin Centre, Delhi had no public
school functional within its premises in year 2003-2005, that is,
the year when the claimant was appointed by the management as
a 'Fitness Instructor' at New Delhi YMCA at its Nizamuddin
Centre. Therefore, claimant was a "Fitness Instructor" of
Gymnasium/Fitness Centre at Nizamuddin Centre and he cannot
be equated with "Physical Training Instructor" of School as
"Special Teaching Staff" of YMA Public School, as there was no
school in existence in YMCA Nizamuddin Centre, till 2008-
2009.
35. Therefore, indisputably, the claimant was not
employed in any school by the management at the time of his
part-time appointment in the year 2003 as Fitness Instructor and
even subsequently in the year 2005, when he was appointed as
Fitness Instructor on "full-time" basis. Further, claimant was an
employee of management and his work was entirely different and
separate from any kind of academic teaching which is generally
given by 'teacher', professor or lecturers. Thus, the claimant as
"Fitness Trainer" in Gymnasium at New Delhi YMCA, Centre
for Development of Youth and Challenged, Nizamuddin was
required to perform skilled manual work in assisting the
members of Gymnasium in use of Gym equipments and in
performance of fitness exercises, which requires technical
know-how in usage of equipment and skilled manual work in
performing fitness exercises and therefore, it does not qualify as
academic or teaching job. Reliance is also placed on a judgment
of Sangam Education Society Nagpur and another Vs. Bharti
LIR No.2870/16.; Sunil David Vs The Management
of New Delhi Young Men's Christian Association Page No. 16 of 45
Hansraj Borkar and another 1995 (1) MR LJ 847 wherein it was
held that a member of non-teaching staff can raise his claim
before the Labour Court.
36. Ld. Counsel for management has relied on judgment
of President, Rashtriya Adarsh Vidyalaya Shikshan Mandal vs.
Baban 2016 (4) All MR 934 in support of his claim that
"Physical Training Instructor" is a teacher and therefore not a
workman and he has therefore insisted that by analogy, a "Fitness
Instructor" of Gym shall not be a workman under Industrial
Disputes Act. However, the aforesaid case is distinguishable
from facts of present case, as aforesaid case was given on basis of
definition of "teacher" on basis of S. 2(26) and other provisions
of Maharastra Employees Private Schools Conditions of service)
Regulation Act 1977, a Physical Training Instructor" in
secondary school is member of 'Special Teaching Staff" and a
physical training instructor was thus treated as member of
teaching staff and thus a teacher.
37. However, in the case at hand, no such statutory Act
or rules/regulations/bye-laws of YMCA has been shown by
management to establish that a Fitness Instructor, who is not
employed in any school nor is a member of "teaching staff" can
be considered as 'teacher' for purposes of Industrial Disputes Act.
Moreover, considering the job profile of a "Instructor of Gym, it
is difficult to hold that he is imparting any teaching or education
so as to bring it within scope of "noble profession or vocation" as
explained in Bangalore Water Supply case (Supra). Therefore, for
the forgoing reasons, this Court is of considered view, that a
"Fitness Instructor" of Gym/Fitness Centre is not engaged in any
LIR No.2870/16.; Sunil David Vs The Management
of New Delhi Young Men's Christian Association Page No. 17 of 45
academic pursuit. Therefore, this Court is of considered opinion
that claimant Sunil David is covered within definition of
workman as defined in S.2 (s) of Industrial Disputes Act, 1947.
38. Accordingly, this issue is decided in favour of
workman and against the management.
ISSUE NO.2
(ii) Whether the services of the claimant/ workman
have been terminated by the management on
account of abolition of the post of Fitness
Instructor vide letter dated 04.10.2011 on
account of the closure of the Fitness
Centre/Gymnasium owing to the change of
land use by giving him the one month's pay in
lieu of notice as claimed by the management, if
so, its effect?OPM
39. The onus to prove this issue was upon the
management.
40. In order to discharge its onus, management has
examined Sh. John Prakash as MW1 who has stated in his
evidence affidavit Ex.MW1/A that services of workman Sunil
David was terminated vide letter dated 04.10.2011 Ex.PW1/5 as
post of Fitness Instructor at Fitness Centre, New Delhi YMCA,
Nizamuddin was abolished w.e.f. 04.10.2011 (after closing of
working hours) as Fitness Centre of New Delhi YMCA
Nizamuddin was closed w.e.f. 01.06.2011, in view of
observations of L&DO and has relied on the same document
Ex.PW1/5 (2 pages) and he has further deposed that workman
was given one month's salary in lieu of notice period as per
LIR No.2870/16.; Sunil David Vs The Management
of New Delhi Young Men's Christian Association Page No. 18 of 45
clause 6 of his confirmation letter dated 24.03.2006 and he was
given a cheque of sum of Rs.53,139/-, which amount was
inclusive of one month's notice salary, salary for the month of
October 2011 and earned leave encashment of 88½ days.
41. In his testimony by way of affidavit Ex.WW1/A, the
workman has not disputed the service of aforesaid letter dated
04.10.2011 vide which he was discharged from the services of
the management after abolition of post of Fitness Instructor after
the Fitness Centre, New Delhi YMCA, Nizamuddin was closed
w.e.f. 01.06.2011. However, it is his claim that he was
performing duties in YMCA Public School since June 2011, as he
was asked by the management to perform his duties in YMCA
Public School and has relied on letter dated 13.09.2011
Ex.PW1/4 of Associate General Secretary, YMCA Nizamuddin
vide which he was directed to work in YMCA Public School and
assist Headmistress in organizing morning assembly sport
activities and in administration and in maintenance of whole
building of YMCA Public School.
42. Thus, it is not in dispute that vide letter dated
04.10.2011 Ex.PW1/5, the services of the workman was
terminated by mentioning therein that the post of Fitness
Instructor of Fitness Centre, New Delhi YMCA, Nizamuddin had
been abolished due to closure of aforesaid Fitness Centre w.e.f.
01.06.2011.
43. It is clear from testimony adduced by parties that the
services of the workman Sunil David was terminated on
04.10.2011 vide letter Ex.PW1/5 after about 4 months of date of
LIR No.2870/16.; Sunil David Vs The Management
of New Delhi Young Men's Christian Association Page No. 19 of 45
closure of the Fitness Centre, New Delhi YMCA Nizamuddin and
therefore, it can be safely inferred that the closure of
Gym/Fitness Centre on 01.06.2011, itself was not reason behind
cessation of the services of workman Sunil David. Instead, he
had continued in the services of the management, even thereafter
for about 4 months. Evidently, even the management has not
disputed the fact that the workman Sunil David had continued in
the services of the management till 04.10.2011, though the
written statement as well as the evidence affidavit of the
management witness Sh.John Prakash is completely silent, on
this aspect regarding the place of posting as well as the
designation/capacity in which the workman Sunil David had
continued in the services of the management during the period
from 02.06.2011 till 04.10.2011, i.e., the period from the date of
closure of Fitness Centre YMCA Nizamuddin on 01.06.2011 till
the date of his termination on 04.10.2011 vide letter Ex.PW1/5
(colly.).
44. It is relevant to note that the workman has
categorically deposed in his evidence affidavit Ex.WW1/A that
from June 2011, he was performing duties in YMCA Public
School as he was asked by the management to perform his duties
in YMCA Public School and has relied on letter dated 13.09.2011
Ex.PW1/4 of Associate General Secretary, YMCA Nizamuddin
vide which he was directed to work in YMCA Public School and
assist Headmistress in organizing morning assembly, sport
activities and in administration and in maintenance of whole
building of YMCA Public School.
LIR No.2870/16.; Sunil David Vs The Management
of New Delhi Young Men's Christian Association Page No. 20 of 45
45. In this regard, it is also relevant to refer to Clause (4)
of letter of appointment dated 13.04.2005 Ex.PW1/2 of the
workman and Clause (3) of letter of confirmation of the workman
dated 24.03.2006 Ex.PW1/3 which reads as under :
"you are liable to be transferred to another department
or place whether in existence or may come into
existence hereinafter either of the place of posting or
any other place where the management may
establish/open its branch/office later on and the
benefits enjoyed in the previous place will not be
applicable or may be withdrawn. The management
reserves its right to re-designate you as and when
required in the same cadre for administrative reason or
otherwise to which please note."
46. The management, on the other hand, has not
challenged the genuineness of abovesaid letter dated 13.09.2011
Ex.PW1/4 itself nor the management has disputed the issuance of
aforesaid letter by the concerned Associate General Secretary,
New Delhi YMCA Nizamuddin. The only objections taken by
management are that the aforesaid letter was issued by its
Associate General Secretary, New Delhi YMCA Nizamuddin
without jurisdiction as he was not authorized and competent to
issue such letter and that this letter is thus inoperative as it had no
Board approval of YMCA. However, the management has neither
examined Sh. Mark Clive, Associate General Secretary, YMCA,
Nizamuddin (who issued said letter dated 13.09.2011), who is
functionary of management itself or any superior authority to
prove that the said Associate General Secretary of management
had no authority to issue such letter. Management has not
adduced in its evidence, any document of the management to
prove powers, functions and the procedures of the management
for the purpose of transfers/re-designation of the workman/
employee to different branches/offices of the management. Even
LIR No.2870/16.; Sunil David Vs The Management
of New Delhi Young Men's Christian Association Page No. 21 of 45
otherwise, it is management's admitted case that Sunil David has
continued to work with it till 04.10.2011 and therefore, as long as
management admits the employment of workman Sunil David
with it till 04.10.2011, the issue of post and place of posting of
workman Sunil David is not material for adjudication of this
issue.
47. The term 'closure' is defined u/s 2 (cc) of Industrial
Disputes Act as 'permanent closing down of a place of
employment or part thereof'. The closure has to be genuine and
bone fide in the sense that it should be a closure in fact and not a
mere pretense of closure. Reliance is placed on the judgment of
Tea District Labour Association Vs. Ex-Employees of Tea
Districts Labour Association (1960) 3 SCR 207. The motive
behind the closure is immaterial and what is to be seen is whether
it is an effective one. Reliance is placed on a case titled as
Andhra Prabha Ltd. Vs. Secretary, Madras Union of Journalists
A.T.R. 1969 SC 90.
48. In Pipraich Sugar Mills Ltd. Vs. Pipraich Sugar
Mills Mazdoor Union, (1956) SCR 872, the appellant company
could not work its mills to full capacity owing to short supply of
sugar-cane and it was held therein that :
"Thus this Court in Pipraich (supra) was
dealing with the question whether the discharge
of the workmen on closure of the undertaking
would constitute retrenchment and whether the
workmen were entitled on that account to
retrenchment compensation; and it was
observed that retrenchment connoted in its
ordinary acceptation that the business itself was
being continued but that a portion of the staff
or the labour force was discharged as surplus-
LIR No.2870/16.; Sunil David Vs The Management
of New Delhi Young Men's Christian Association Page No. 22 of 45
age and the termi-nation of services of all the
workmen as a result of the closure of the
business could not, therefore, be properly
described as retrenchment, which in the
ordinary parlance meant discharge from the
service and did not include discharge on
closure of business."
49. Section 25-FFF of Industrial Dispute Act provides
procedure to be followed in case of closure of undertaking and
reads as under:
"Compensation to workmen in case of closing down of
undertakings -
(1) Where an undertaking is closed down for any reason
whatsoever, every workman who has been in continuous
service for not less than one year in that undertaking
immediately before such closure shall, subject to the
provisions of sub-section (2), be entitled to notice and
compensation in accordance with the provisions of
Section 25F, as if the workman had been retrenched:
Provided that where the undertaking is closed down
on account of unavoidable circumstances beyond the
control of the employer, the compensation to be paid to
the workman under clause (b) of section 25F, shall not
exceed his average pay for three months.
-An undertaking which is closed down by reason merely
of -
(i) financial difficulties (including financial
losses); or
(ii) accumulation of undisposed stocks; or
(iii) the expiry of the period of the lease or licence
granted to it; or
(iv) in case where the undertaking is engaged in
mining operations, exhaustion of the minerals in the area
in which such operations are carried on,
shall not be deemed to be closed down on account of
unavoidable circumstances beyond the control of the
employer within the meaning of the proviso to this sub-
section.
Notwithstanding anything contained in sub-section
(1) where an undertaking engaged in mining operations
is closed down by reason merely of exhaustion of the
minerals in the area in which such operations are carried
on, no workman referred to in that sub-section shall be
entitled to any notice or compensation in accordance
with the provisions of section 25F, if -
LIR No.2870/16.; Sunil David Vs The Management
of New Delhi Young Men's Christian Association Page No. 23 of 45
(a) the employer provides the workman with alternative
employment with effect from the date of closure at the
same remuneration as he was entitled to receive, and on
the same terms and conditions of service as were
applicable to him, immediately before the closure;
(b) the service of the workman has not been interrupted
by such alternative employment; and
(c) the employer is, under the terms of such alternative
employment or otherwise, legally liable topay to the
workman, in the event of his retrenchment, compensation
on the basis that his servie has been continuous and has
not been interrupted by such alternative employment.
(1B) For the purposes of sub-sections (1) and (1A),
the expressions "minerals" and "mining operations" shall
have the meanings respectively assigned to them in
clauses (a) and (b) of section 3 of the Mines and
Minerals Act, 1957.
(2) Where any undertaking set-up for the
construction of buildings, bridges, roads, canals, dams or
other construction work is closed down on account of the
completion of the work within two years from the date
on which the undertaking had been set-up, no workman
employed therein shall be entitled to any compensation
under clause (b) of Section 25F, but if the construction
work is not so completed within two years, he shall be
entitled to notice and compensation under that section for
every (completed year of continuous service) or any part
thereof in excess of six months."
50. It has been held in Messrs. Avon Services
(Production Agencies) Pvt. Ltd. V. Industrial Tribunal, Haryana,
Faridabad reported in 1979 (1) SCC 1 and in paragraphs 4 and 5
observed as follows :
"Now, even if a closure of an undertaking as contemplated by
Section 25-FFF need not necessarily comprehend a closure of
the entire undertaking and a closure of a distinct and separate
unit of the undertaking would also be covered by Section 25-
FFF, the question is whether painting sub-section was itself an
undertaking? ..... To style a job of a particular worker doing a
specific work in the process of manufacture as in itself an
undertaking is to give meaning to the expression undertaking
which it hardly connotes. An employer may stop a certain
work which was part of an undertaking but which could
not be classified as an independent undertaking, the
stoppage of work in this context would not amount to
LIR No.2870/16.; Sunil David Vs The Management
of New Delhi Young Men's Christian Association Page No. 24 of 45
closure of the undertaking."
5.Therefore, according to the test laid down by the Supreme
Court to decide whether the word "undertaking" occurring in
Section 25-FFF, for the purpose of closure of an undertaking
the word does not necessarily mean entire undertaking if there
is a separate industrial activity which can be classified as such
or, to use the language of the Straw Board Manufacturing
Co.'s case, if there is a functional integrality to the particular
unit of an undertaking, then such separate and restricted
industrial activity or functional integrality would render that
particular unit of a larger undertaking an undertaking for the
purposes of Section 25-FFF. It is in the light of this test which
has been laid down by the Supreme Court in Avon Services'
case that the question will have to be decided,"
51. From the evidence of both the parties, it is clear that
letter dated 04.10.2011 was issued to claimant informing him of
termination of his service, due to abolition of his post on closure
of Fitness Centre of New Delhi YMCA Nizamuddin, only after
lapse of about 4 months since closure of Fitness Centre, YMCA
Nizamuddin which itself is a violation of S. 25 FFF r/w Section
25-F of Industrial Disputes Act, which mandates issuance of
notice of proposed closure to the workman, one month prior to
date of proposed closure or payment of one month's salary in lieu
of such notice period at time of such closure or before it and act
of management is further in derogation of mandatory legal
provisions u/s 25-FFF r/w Section 25-F of Industrial Disputes
Act regarding payment of compensation to workman and service
of notice of closure by the management to appropriate
Government by management.
52. Therefore, from foregoing discussion, it is clear that
the discharge/termination of workman Sunil David after about 4
months of closure of Fitness Centre of New Delhi YMCA
Nizamuddin Delhi, was not due to said closure and instead it was
LIR No.2870/16.; Sunil David Vs The Management
of New Delhi Young Men's Christian Association Page No. 25 of 45
a pretence adopted by management to terminate the workman
and was also bad in eyes of law for non-compliance of
mandatory statutory provisions of Section 25-FFF r/w Section
25-F of Industrial Disputes Act one month advance notice of
proposed closure or one month's salary in lieu thereof, payment
of compensation and of Section 25-FFF r/w S. 25 F(c) r/w Rule
76-B of Industrial Disputes Act (Central) Rules 1957 regarding
service of notice by management on appropriate Government.
53. Thus, this Court is of considered opinion that
termination of services of workman Sunil David by management
was not on account of closure of Fitness Centre/Gym YMCA
Nizamuddin Centre. Accordingly, this issue is decided against the
management and in favour of the workman.
ISSUE NO.3:
(iii) Whether the claim of the claimant/workman is
bad for non service of demand notice? OPM
54. The onus to prove this issue was upon the
management.
55. In this regard, it is relevant to note that in Sindhu
Resettlement Corporation Limited Vs. Industrial Tribunal of
Gujarat and Others AIR 1968 SC 529 it was held by Hon'ble
Supreme Court of India that:
"If no dispute at all was raised by the respondents with the
management, any request sent by them to the Government would only be a demand by them and not an industrial dispute between them and their employer. An industrial dispute, as defined, must be a dispute between employers and employers, employers and workmen, and workmen and workmen. A mere demand to a Government, without a LIR No.2870/16.; Sunil David Vs The Management of New Delhi Young Men's Christian Association Page No. 26 of 45 dispute being raised by the workmen with their employer, cannot become an industrial dispute. Consequently, the material before the Tribunal clearly showed that no such industrial dispute, as was purported to be referred by the State Government to the tribunal, had ever existed between the appellant Corporation and the respondents and the State Government, in making a reference, obviously committed an error in basing its opinion on material which was not relevant to the formation of opinion. The Government had to come to an opinion that an industrial dispute did exist and that opinion could only be formed on the basis that there was a dispute between the appellant and the respondents relating to reinstatement. Such material could not possibly exist when, as early as March and July, 1958, respondent No.3 and respondent No.2 respectively had confined their demands to the management to retrenchment compensation only and did not make any demand for reinstatement. On these facts, it is clear that the reference made by the Government was not competent."
56. A similar point came for consideration of two Judge Bench of the Hon'ble Apex Court in Shambu Nath Goyal Vs. Bank of Baroda AIR 1978 SC 1088, where the question of raising a demand upon the management was considered and the Hon'ble Supreme Court of India held thus :
"A bare perusal of the definition would show that where there is a dispute or difference between the parties contemplated by the definition and the dispute or difference is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person there comes into existence an industrial dispute. The act nowhere contemplates that the dispute would come into existence in any particular, specific or prescribed manner. For coming into existence of an industrial dispute a written demand is not a sine qua non, unless of course in the case of public utility service, because Section 22 forbids going on strike without giving a strike notice."
57. In the case at hand, the management in its written statement has not taken any categorical objection regarding non-service of legal demand notice dated 27.10.2011 of the workman, on the management and there is LIR No.2870/16.; Sunil David Vs The Management of New Delhi Young Men's Christian Association Page No. 27 of 45 no clear and categorical denial by the management regarding service of aforesaid notice upon the management. Even during the management's evidence, wherein management has examined Sh. John Prakash, Head HR of the establishment of the management as MW-1, no such objection regarding non-service of legal demand notice dated 27.10.2011 of the workman upon the management, has been taken by the aforesaid management witness and no evidence was adduced on this point in the management evidence.
58. It is also pertinent to note that the workman has deposed in his evidence affidavit Ex.WW1/A that he had sent legal demand notice dated 27.10.2011 demanding reinstatement with continuity of service with full back wages from the management and has placed the copy of demand notice on record which is Ex.PW1/6 and has further stated in his evidence affidavit that he has sent the aforesaid notice at the correct address of the management vide speed post and registered post and has filed postal receipt thereof as Ex.PW1/7 and AD receipt as Ex.PW1/8. Perusal of the speed post receipt Ex.PW1/7 and AD receipt Ex.PW1/8, shows that the same bears the address of the management of New Delhi YMCA, Jai Singh Road, Delhi.
59. Therefore from the testimonies of the parties, it has been proved that legal demand notice dated 27.10.2011 Ex.PW1/6 was sent by the workman to the management at its correct address via speed post and registered post and therefore, there is legal presumption of service of the aforesaid demand notice upon the management in terms of LIR No.2870/16.; Sunil David Vs The Management of New Delhi Young Men's Christian Association Page No. 28 of 45 Section 27 of General Clauses Act. Management has not been able to dispel this presumption. Therefore, in the absence of any categorical denial of service of legal demand notice dated 27.10.2011 of the workman on the management and in the absence of any evidence adduced on this point by the management, there is nothing on record to rebut the legal presumption in terms of aforesaid statutory provisions. Accordingly, this issue is decided against the management and in favour of the workman.
ISSUE NO.4
(iv) Whether the services of the workman have been terminated by the management illegally and/or unjustifiably? OPW
60. The onus to prove this issue was on the workman.
61. In the case at hand, the management had apparently terminated the services of workman w.e.f 04.10.2011, vide its letter dated 04.10.2011 Ex.PW1/5, under guise of closure of Fitness Centre at YMCA Nizamuddin Centre w.e.f. 01.06.2011. This Court has already observed after detailed discussion in Issue No2, that termination of services of workman Sunil David by management was not on account of closure of said Fitness Centre/Gynasium of New Delhi YMCA Nizamuddin, Delhi as he was terminated by management after about 4 months of stated closure of Fitness Centre/Gymnasium.
62. Also, there is no dispute to fact that the workman Sunil David had continued in services of management till 04.10.2011, that is, for period of about 4 months even after LIR No.2870/16.; Sunil David Vs The Management of New Delhi Young Men's Christian Association Page No. 29 of 45 closure of the said Fitness Centre of New Delhi YMCA Nizamuddin, Delhi on 01.06.2011. Workman Sunil David has stated in his evidence affidavit Ex.WW1/A that he was working in YMCA Public School w.e.f. June 2011 and relied on letter dated 13.09.2011 of Associate General Secretary of YMCA, which is Ex.PW1/5, though management has disputed authority of Associate General Secretary to issue such letter.
63. At this stage, it is relevant to refer to Clause (4) of letter of appointment dated 13.04.2005 Ex.PW1/2 of the workman Sunil David, he could be transferred by management to another and according to this Clause department or place, existing or future, where the management had its branch/ office or which may come into existence and workman could be re- designated in same cadre for administrative reasons and same conditions were reiterated in his letter of confirmation dated 24.03.2006 Ex.PW1/3. The workman was also required to assist in other programme of YMCA from time to time as per the terms of his letter of appointment Ex.PW1/2. Thus, it is clear that workman was employed as "Fitness Instructor" in Centre for Development of Youth & Challenged, Nizamuddin Delhi Centre of New Delhi YMCA and the aforesaid letter of appointment of the claimant contained provision regarding his transfer to other branches/ office of New Delhi YMCA and a clear provision regarding change of his designation within the same cadre on administrative grounds, which implies that the services of the workman were not only transferable within the branches/offices of the management but his conditions of service also included that he could be re-designated by the management within the same cadre, thereby implying re-designation of his post. LIR No.2870/16.; Sunil David Vs The Management of New Delhi Young Men's Christian Association Page No. 30 of 45
64. Thus the aforesaid provision of letter of appointment dated 13.04.2005 Ex.PW1/2 of the workman would explain his transfer to YMCA Public School after re-designating him to assist the Head Mistress in organizing the morning assembly and sports activities of the aforesaid school as well as in administration and maintenance of the building of the school as provided vide letter dated 13.09.2011 Ex.PW1/4 issued by Associate General Secretary of YMCA Nizamuddin, Delhi to the workman. Though the management has averred that the aforesaid letter dated 13.09.2011 was issued by the aforesaid Associate General Secretary of YMCA Nizamuddin, Delhi without authority and jurisdiction and therefore, it has been contended by the management that the said letter dated 13.09.2011 Ex.PW1/4 is inoperative. However, the factum of issuance of said letter dated 13.09.2011 Ex.PW1/4 to workman by Associate General Secretary YMCA has neither been disputed by the management nor its genuineness has been challenged by the management. Further, the management has neither examined Sh. Mark Clive, Associate General Secretary, YMCA, Nizamuddin (who issued abovesaid letter dated 13.09.2011), who is functionary of management itself or any superior authority to prove that the said Associate General Secretary of management had no authority to issue such letter. Management has not adduced in its evidence, any document of the management to prove powers, functions and the procedures of the management for the purpose of transfers/ re-designation of the workman/employee to different branches/ offices of the management. Moreover, no such objections were taken by the management in its letter dated 04.10.2011 vide which the services of the workman Sunil David was terminated LIR No.2870/16.; Sunil David Vs The Management of New Delhi Young Men's Christian Association Page No. 31 of 45 by the management and the aforesaid objections regarding lack of authority of the Associate General Secretary, YMCA Nizamuddin, Delhi to issue any such letter was taken for the first time in the written statement filed by the management in the Court and even these objections have not been proved by adducing even documentary evidence on this point. It is relevant to note here that letter of appointment dated 13.04.2005 Ex.PW1/2 was issued by the Officiating General Secretary and the letter of appointment dated 13.04.2005 Ex.PW1/2 is completely silent regarding the Officials/authority of the management who shall have the power to transfer or re-designate him as per Clause (4) of aforesaid letter of appointment Ex.PW1/2 (colly.) and in these circumstances, it cannot be said that the workman Sunil David was at fault in complying with the directions issued vide letter dated13.09.2011 by the Associate General Secretary, YMCA Nizamuddin, Delhi. It is also relevant to note that the management has not challenged the aforesaid letter dated 13.09.2011 Ex.PW1/4 in any Court of law by filing suit for declaration of the said letter as null and void.
65. Even otherwise, Ld. AR for the claimant has submitted during final arguments that New Delhi YMCA, has its office/branches at 3 places in NCR of Delhi i.e. at Jai Singh Road, Delhi, secondly at Nizamuddin, Delhi and third one at Greater Noida, UP and it has been argued by Ld. AR for the claimant that New Delhi YMCA still operates Gymnasium/Fitness Centre at its Jai Singh Road Centre, Delhi and Greater Noida Centre, UP and that the same is still functional at both the aforesaid Centres of New Delhi YMCA. Ld. AR for the management and Sh. John Prakash, HR-Head of the LIR No.2870/16.; Sunil David Vs The Management of New Delhi Young Men's Christian Association Page No. 32 of 45 management have fairly conceded that the management has Gymnasium operating at the branch of the management at Jai Singh Road and Greater Noida Centre, UP. Thus, it is clear that other two Fitness Centres of YMCA are functioning at Jai Singh Road, Delhi and at Greater Noida, UP and management has not led any evidence to show that there was no post or vacancy at aforesaid Fitness Centres of YMCA or that no fresh Fitness Instructor was recruited after closure of Fitness Centre at Nizamuddin.
66. Thus from the cumulative reading of the entire evidence adduced by both the parties and documents on record, it is abundantly clear that workman Sunil David had continued to work with the management till 04.10.2011, even after the closure of the Fitness Centre, YMCA Nizamuddin on 01.06.2011 and since no plausible evidence has been brought on record by the management to show that workman Sunil David was not working at YMCA Public School w.e.f June 2011, therefore, this Court has no hesitation in holding that workman Sunil David had been working in diverted capacity at YMCA Public School since June 2011 and this observation finds support from letter dated 13.09.2011 Ex.PW1/4. Therefore, it appears that under the guise of closure of the Fitness Centre/Gymnasium of YMCA Nizamuddin, workman Sunil David has been virtually retrenched from his services by management vide letter dated 04.10.2011 Ex.PW1/5, without compliance of mandatory statutory provisions of Section 25-F of Industrial Dispute Act and therefore, his termination is illegal and unjustified and is accordingly void ab initio for non-compliance of mandatory statutory provisions of Industrial Disputes Act. LIR No.2870/16.; Sunil David Vs The Management of New Delhi Young Men's Christian Association Page No. 33 of 45
67. Accordingly, this issue is decided in favour of workman and against the management.
ISSUE NOS. 5 & 6(v) Whether the claimant/workman is entitled to the relief claimed in the statement of claim?
OPW
&
(vi) Relief.
68. 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. The term "reinstatement" has not been defined in the Industrial Disputes Act, 1947. The Shorter Oxford English Dictionary, Vol. II, 3rd Edition stated that, the word "reinstate" means to reinstall or reestablish (a person or thing in a place, station, condition etc.); to restore to its proper and original state; to reinstate afresh and the word "reinstatement means the action of reinstating; reestablishment. "As per Black's Law Dictionary, 6th Edition, "reinstatement" means 'to reinstall, to reestablish, to place again in a former state, condition, or office, to restore to a state or position from which the object or person had been removed'.
69. In the case titled as Tapash Kumar Paul Vs BSNL & Anr, and reported as of JT 2014 (7) SC 589, the Hon'ble Supreme Court has held that the Court may either award the compensation or order for reinstatement in the cases which do not fall within the five categories as described by the Hon'ble Supreme Court in the aforesaid judgment. The relevant portion of this judgment is reproduced as under :
LIR No.2870/16.; Sunil David Vs The Management of New Delhi Young Men's Christian Association Page No. 34 of 45 "It is no doubt true that a Court may pass an order substituting an order of reinstatement by awarding compensation but the same has to be based on justifiable grounds viz.(i) where the industry is closed;
(ii) where the employee has superannuated or going to retire shortly and no period of service is left to his credit; (iii) where the workman has been rendered incapacitated to discharge the duties and cannot be reinstated and/or; (iv) when he has lost confidence of the Management to discharge duties. What is sought to be emphasized is that there may be appropriate case on facts which may justify substituting the order of reinstatement by award of compensation, but that has to be supported by some legal and justifiable reasons indicating why the order of reinstatement should be allowed to be substituted by award of compensation. In the instant matter, we are not satisfied that the appellant's case falls in to any of the categories referred to hereinbefore which would justify compensation in lieu of reinstatement. We thus find no justification for the High Court so as to interfere with the Award passed by the Tribunal which was affirmed even by the single Judge, but the Division Bench thought it appropriate to set aside the order of reinstatement without specifying any reasons whatsoever, as to why it substituted with compensation of a meager amount of Rs.20,000/ to the appellant."
70. Hon'ble Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya and Ors., (2013) 10 SCC 324 discussed the concept of reinstatement as under:
"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money..... The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly LIR No.2870/16.; Sunil David Vs The Management of New Delhi Young Men's Christian Association Page No. 35 of 45 punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments." (emphasis supplied).
71. In the present case, the workman worked with management for almost 8 years prior to his illegal termination on 04.10.2011, as such, this Court is of the considered view that the case of the claimant does not fall in any of the categories as mentioned by Hon'ble Supreme Court in the case of Tapash Kumar Paul Vs BSNL & Anr,(Supra) and therefore, in the present case claimant is entitled to be reinstated in services, with continuity of services alongwith all consequential benefits.
72. As regards the issue of back-wages, Hon'ble Supreme Court in Hindustan Tin Works Pvt. Ltd. Vs. The Employees of Hindustan Tin Works Pvt. Ltd. , (1979 (2) SCC 80) has laid down :
"In the very nature of things there cannot to a straight jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances..."
73. The Hon'ble Supreme Court in the case M.P. State Electricity Board v. Jarina Bee, (2003) 6 SCC 579 had observed that the award of full back wages was not the natural consequence of an order of reinstatement.
74. In G.M. Haryana Roadways v. Rudhan Singh, [(2005) 5 SCC591 ], it was held :-
"8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of LIR No.2870/16.; Sunil David Vs The Management of New Delhi Young Men's Christian Association Page No. 36 of 45 service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year."
75. In Allahabad Jal Sansthan v. Daya Shankar Rai, 2005 SCC (L&S) 631, the Hon'ble Supreme Court of India was pleased to hold that "in the event of order of dismissal being set aside, reinstatement with full back wages, was a usual result, earlier but now with the passage of time, it has come to be realized that industry was being compelled to pay the workman for a period during which he hardly contributed little or nothing at all, for a period that was spent unproductively, and as a result the workman was being compelled to go back to a situation which prevailed many years ago when he was dismissed. It was necessary to develop a pragmatic approach to the problems dogging industrial relations."
76. Again in U.P.S.R.T.C. Ltd. v. Sarada Prasad Misra and another (2006) 4 SCC 733, it was held that the grant of back LIR No.2870/16.; Sunil David Vs The Management of New Delhi Young Men's Christian Association Page No. 37 of 45 wages is discretionary. It was reiterated that initially it was for the employee to prove that he had not been gainfully employed. It was observed:-
"16. From the above cases, it is clear that no precise formula can be adopted nor "cast-iron rule" can be laid down as to when payment of full back wages should be allowed by the court or tribunal. It depends upon the facts and circumstances of each case. The approach of the court/tribunal should not be rigid or mechanical but flexible and realistic. The court or tribunal dealing with cases of industrial disputes may find force in the contention of the employee as to illegal termination of his services and may come to the conclusion that the action has been taken otherwise than in accordance with law. In such cases obviously, the workman would be entitled to reinstatement but the question regarding payment of back wages would be independent of the first question as to entitlement of reinstatement in service. While considering and determining the second question, the court or tribunal would consider all relevant circumstances referred to above and keeping in view the principles of justice, equity and good conscience, should pass an appropriate order."
77. The Hon'ble Supreme Court of India in case titled as Novartis India Ltd. vs. State of West Bengal (SLP (C) No.21254/2007) was pleased to hold that:
"This Court, in a number of decisions opined that grant of back wages is not automatic. The burden of proof that he remained unemployed would be on the workmen keeping in view the provisions contained in Section 106 of the Evidence Act, 1972."
78. In Muir Mills Unit of NTC (U.P.) Ltd. v. Swayam Prakash Srivastava and another, (2007) 1 SCC 491, it was held :-
"46. We are also of the view that the award of the Labour Court is perverse as it had directed grant of back wages without giving any finding on the gainful employment of Respondent 1 and held that the discontinuance of the services of a probationer was illegal without giving any finding to the effect that the disengagement of Respondent 1 was in any manner stigmatic. In the decision in M.P. SEB v. Jarina Bee 2 this Court held that payment of full back wages was not the natural consequence of setting aside an order of removal. In the instant case, though the termination was as far back as in 1983, the industrial adjudicator has not given any finding on LIR No.2870/16.; Sunil David Vs The Management of New Delhi Young Men's Christian Association Page No. 38 of 45 unemployment. This Court in a recent case of State of Punjab v. Bhagwan Singh18 has held that even if the termination order of the probationer refers to the performance being "not satisfactory", such an order cannot be said to be stigmatic and the termination would be valid."
79. The Hon'ble High Court of Delhi in case titled as Indian Hydraulic Industries Pvt. vs Kishan Devi And Bhagwati Devi passed in Equivalent citations: (2007) IIILLJ 55 Del has held as under:
"5. It is now settled law that even if the termination of a person is held illegal, the Labour Court is not supposed to direct reinstatement along with full back wages and the relief can be moulded according to facts and circumstances of each case. The Court has to adopt a pragmatic approach and take into account the allegations made by the work-women, the nature of contribution by the work-women to the industry, the time gap and averments made about the unemployment and proof of unemployment as the relevant factors to be considered in such cases. The Labour Court can allow compensation to a workman instead of reinstatement and back wages. Undisputably, both the work-women were considered as part-time employees by the Tribunal. Both were working for two hours per day for cleaning and sweeping of floors. Obviously, the rest of the time of the day was being utilized by the work-women for similar work at other places. They could not be said to be unemployed in the sense as of a full time worker is rendered unemployed.
80. In Kendriya Vidyalaya Sangathan and Anr. v. S.C.Sharma, the Hon'ble Supreme Court of India had observed as under:
"When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard".
81. The Hon'ble High Court of Delhi in case titled as Indian Hydraulic Industries Pvt. vs. Kishan Devi And Bhagwati Devi passed in Equivalent citations: (2007) IIILLJ 55 Del has LIR No.2870/16.; Sunil David Vs The Management of New Delhi Young Men's Christian Association Page No. 39 of 45 also held as under:
"7. In the present case looking into the fact that the respondents were part-time employees working only for two hours a day and had absented from duty of their own, I consider it a fit case where compensation should have been awarded by the Labour Court instead of reinstatement and back wages. I consider that a compensation of Rs. 36,000/- to each workwoman shall meet the ends of justice. The writ petition is allowed to this extent and the relief granted by the Labour Court is modified and it is directed that in lieu of reinstatement and back wages, a compensation of Rs. 36,000/- be paid to the each work-woman. This amount has already been paid to the respondents asper record, under the directions of this Court. No order as to costs."
82. The Hon'ble Supreme Court of India in case titled as Rajasthan State Road Transport vs Phool Chand (D) in Civil Appeal no.1756/2010 has held as under:
"It is necessary for the workman in such case to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee".
83. The Hon'ble Delhi High Court in the cases titled The Commissioner, Kendriya Vidyalaya Sangathan v. Dr. Dharmendra Singh reported as 2016 SCC Online Del 4718, has held as under:-
"44. So far as grant of back wages is concerned, it depends upon case to case. The issue of payment of back wages on reinstatement of a workman has been discussed by this court in LPA No.24/2013 titled "Delhi Transport Corporation v. Sarjeevan Kumar" decided on 21st January, 2013, the legal proposition in this regard was enunciated as under:-
(i) Payment of full backwages is not automatic on Labour Court/Tribunal granting reinstatement of workman.
(ii) The same principle is equally applicable in case an order of dismissal is set aside by the Labour Court/Tribunal on the ground of non-compliance of Section 25F of the I.D. Act.
LIR No.2870/16.; Sunil David Vs The Management of New Delhi Young Men's Christian Association Page No. 40 of 45
(iii) The Labour Court/Tribunal shall give reasons for determining the specified quantum of backwages.
(iv) The burden is on the workman to show that he is entitled to full backwages or to a reasonable backwages and he is not gainfully employed during the period he was not in service of the management.
(v) Once materials are placed by workman on the above, the burden shifts on to the Management to disprove such claim.
(vi) In the event, the Labour Court/Tribunal fails to give any reason to quantify backwages, the High Court can go into the said issue and decide on on quantum.
45. In Writ Petition No.966 of 1995 titled Vijay D. Wani v. The Cantonment Executive Officer Cantonment Board, the Bombay High Court has granted 50% backwages to the delinquent employee which was upheld by the Hon'ble Supreme Court in Cantonment Executive Officer v. Vijay D. Wani reported in AIR 2008 SC 2953 relevant para 9 and 10 are recapitulated as under:
9. So far as grant of back wages is concerned, it depends upon case to case. But in the present case as the respondent was found guilty by the Cantonment Board but the order of Cantonment Board was sent aside because it suffered from bias and it will be unfair to deny 50% back wages to the respondent (herein). The Division Bench also directed that more than 13 years have passed, therefore, it did not permit the respondent to proceed against the petition afresh. The Division Bench decided the matter on 10th January, 2005 and now more than 16 years have lapsed.
Therefore, it would not be fair to permit the respondent to proceed afresh in the matter. Consequently, we do not find any merit in this appeal and the same is dismissed.
10. The respondent be reinstated with the benefit of 50% back wages and continuity of service".
84. The Hon'ble Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya and Ors., (2013) 10 SCC 324 had held that:
"33. The propositions which can be culled out from the aforementioned judgments are:
i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudication authority or the Court may take into consideration the length of service of the employee/workman, the nature of LIR No.2870/16.; Sunil David Vs The Management of New Delhi Young Men's Christian Association Page No. 41 of 45 misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
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(iv) The cases in which the Labour Court/Industrial Tribunal exercises power Under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages.
However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not a all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.
(v) The cases in which the competent Court or Tribunal finds that he employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
(vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-a-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford LIR No.2870/16.; Sunil David Vs The Management of New Delhi Young Men's Christian Association Page No. 42 of 45 the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan nd Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).
(vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman."
85. In view of the above referred legal propositions, the issue of back-wages of the workman in the present case, is to be examined. The initial burden to prove that the workman is unemployed was on him and the workman was supposed to discharge the onus by leading cogent and convincing evidence in this regard. The workman in his statement of claim as well as in his affidavit Ex.WW1/A deposed that he is unemployed since the date of his illegal termination, despite his best efforts. On other hand, during cross-examination of the workman, management has been able to show that workman Sunil David was working with another Fitness Centre named "TRIM N TUFF", as pamphlet of aforesaid Fitness Centre was shown to workman in his cross-examination and workman after seeing the said pamphlet, had admitted that his mobile number was mentioned on it and the said pamphlet has been exhibited as Ex.WW1/M1, though the workman had explained that he did not have this mobile number, while he was working with management. He had also admitted in his cross-examination by Ld. AR of the management that he had been connected with working of Gym. Thus, management has been able to show that workman Sunil David was gainfully employed, after his termination by the LIR No.2870/16.; Sunil David Vs The Management of New Delhi Young Men's Christian Association Page No. 43 of 45 management. The management has been able to bring out in cross-examination of workman, that he was working with some other Fitness Centre, after his termination and even it was admitted by workman in his cross-examination that he used to participate in power-lifting competitions at State and National level and admittedly his last participation in such competition was in year 2017, which shows that the workman was not sitting idle during period after his termination, instead there are sufficient evidence on record to show that he was engaged in other Fitness Centre by name of "TRIM & TUFF" and was also participating in power-lifting competitions at State & National level and had also maintained a decent standard of living as revealed from his admitted monthly household expenses. Therefore, in these facts and circumstances, this Court is of the considered view that workman Sunil David is entitled for 40% of back wages from the management, from the date of his illegal termination i.e. 04.10.2011 till date. The workman Sunil David is accordingly granted the following reliefs:-
i) The workman Sunil David, S/o Sh. Sunny David is directed to be reinstatement in service from the date of his illegal termination, i.e., 04.10.2011, with continuity of service, alongwith all the consequential benefits.
ii) The workman Sunil David is also entitled to 40% of back wages from the management, as per his last drawn wages, w.e.f the date of termination till date.
86. The management is directed to pay the above said wages to the workman within 30 days of publication of this award, failing which, the amount shall also be carrying an interest @ 8% per annum till the date of its realization. Issue LIR No.2870/16.; Sunil David Vs The Management of New Delhi Young Men's Christian Association Page No. 44 of 45 Nos. 5 & 6 is disposed off accordingly.
87. Award is passed and reference is answered accordingly.
88. Award be uploaded on the website of RADC. Signed copy of the award be sent to the concerned Dy. Labour Commissioner for publication as per rules.
89. File be consigned to the Record Room after necessary compliance. RITU Digitally signed by RITU SINGH SINGH Date: 2024.02.29 16:17:10 +0530 Announced in the open (RITU SINGH), Court on 29.02.2024 Addl. District & Sessions Judge, Presiding Officer Labour Court- IV, Rouse Avenue District Courts 29.02.2024 LIR No.2870/16.; Sunil David Vs The Management of New Delhi Young Men's Christian Association Page No. 45 of 45