Delhi District Court
Indian Steel And Metal Workers Union ... vs Sh. Vijay Bikachandant on 7 September, 2022
IN THE COURT OF GORAKH NATH PANDEY,
ADDL. DISTRICT & SESSIONS JUDGE,
PRESIDING OFFICER : LABOUR COURT - IV,
ROUSE AVENUE COURTS : NEW DELHI.
LID No.351/2019
CNR No.DLCT130023592019
IN THE MATTER OF :
Sh. Mohit,
S/o Sh. Ramesh Kumar,
R/o 269, Gali No.84, Mahavir Enclave - 3,
Uttam Nagar, Delhi.
Through:
Indian Steel and Metal Workers Union (Regd.4377),
MS20, Hari Nagar, In front of Khalsa Restaurant,
Mayapuri, New Delhi - 110064.
....WORKMAN
VERSUS
Sh. Vijay Bikachandant
(Chief Managing Director),
M/s. Masyc Projects P. Ltd.,
2023, Community Centre,
Mayapuri, Phase - I, New Delhi 110064.
....MANAGEMENT
Date of institution of the case : 29.05.2019
Date of passing the Award : 07.09.2022
Decision : Dismissed.
LID No.351/2019
Sh. Mohit vs. M/s. Masyc Projects Pvt. Ltd.
Page No.1/22
AWARD
1. The claimant/workman has filed this claim petition
under Section 2A of Industrial Disputes Act, 1947 (hereinafter
referred to as the 'Act') against the management on 29.05.2019
averring that he was working in the employment of the
management since 12.07.2012 as a 'Draftman' and his last drawn
salary was Rs.15,325/ per month. He worked sincerely with the
management and never given any opportunity of complaint
during entire service period. It is alleged by the workman that at
the time of appointment, the management obtained his signatures
on blank papers, blank vouchers and blank appointment letter
and the same can be misused. It is further submitted that the
management had not provided any legal facilities like minimum
wages, overtime, earned leave, bonus etc to them. The workman
time and again demanded the said facilities from the management
but of no avail. The workman also issued the notice to the
management through Union on 25.07.2018 demanding the above
said facilities and due to the said reason, the management got
annoyed and terminated the services of the workman on
26.07.2018 without issuing any notice/charge sheet/memo. The
workman claimed that he was illegally terminated and was not
reinstated, he is entitled for reinstatement in service with full
back wages. As claimed, the management has not issued any
chargesheet and warning nor conducted any domestic enquiry
while terminating the service of the workman. It is prayed that an
LID No.351/2019
Sh. Mohit vs. M/s. Masyc Projects Pvt. Ltd.
Page No.2/22
award be passed in favour of workman and against management
directing the management to reinstate him with consequential
benefits including full back wages and continuity in service.
2. Notice of the statement of claim was issued to the
management and management had filed the written statement to
the statement of claim of workman contended that the workman
got terminated from services in accordance with Cl.3(a) of his
appointment letter dated 12.07.2012; the workman was issued
various warnings during his course of employment pertaining to
unauthorized absenteeism and despite giving various
opportunities, the workman did not show any sign of
improvement; no demand notice for reinstatement had ever got
served upon the management prior to raising the present dispute;
the workman got paid three months notice pay amounting to
Rs.45,975/ besides other entitlements such as pending salary,
leave etc. through cheque and the said cheque has been honoured
on presentation. The management denied the other allegations
made in the statement of claim and lastly prayed to dismiss the
claim petition.
3. The workman also filed rejoinder to the written
statement of the management reiterating the averments made in
the statement of claim.
LID No.351/2019
Sh. Mohit vs. M/s. Masyc Projects Pvt. Ltd.
Page No.3/22
4. Vide order dated 16.01.2020, the following issues
were framed in view of pleadings of the parties :
ISSUES:
(1) Whether the services of the workman were
terminated illegally and/or unjustifiably by the management and
if so, to what consequential relief is the workman entitled for?
OPW.
(2) Whether the act of management in terminating the
services of workman is justified owing to his gross misconduct
and unauthorized absenteeism?OPM
(3) Relief.
The case was, thereafter, fixed for evidence of
workman.
5. In order to discharge the onus and prove the issues,
the workman had appeared as witness and filed in evidence, his
examination in chief by way of affidavit Ex. WW1/A wherein he
had reiterated the contents of his statement of claim on solemn
affirmation. Besides this, he had also placed on record the
following documents :
(i) Ex.WW1/1: Legal demand notice dated 23.07.2018
issued to the management and its postal receipt;
(ii) Ex.WW1/2: Complaint dated 25.07.2018 issued to
the management through Union;
(iii) Ex.WW1/3: Complaint dated 31.07.2018 issued to
the management through Union;
(iv) Ex.WW1/4 and Ex.WW1/5: Legal demand notice
dated 30.07.2018 issued to the management and its postal receipt;
(v) Ex.WW1/6: Statement of claim filed before
Conciliation Officer;
LID No.351/2019
Sh. Mohit vs. M/s. Masyc Projects Pvt. Ltd.
Page No.4/22
(vi) Ex.WW1/7: Appointment letter dated 12.07.2012;
(vii) Ex.WW1/8: Confirmation letter dated 21.01.2013;
(viii) Ex.WW1/9: Pay slips for the months of July, 2012
and June, 2018;
(ix) Ex.WW1/10: Letters dated 14.05.2013, 10.07.2014,
05.04.2015 regarding revise of salary.
As no other witness was examined by the workman,
the workman's evidence was closed vide order dated 31.03.2022
and the case was fixed for management's evidence.
6. In rebuttal, managements had examined Sh. Sandeep
Bhatia as MW1 who filed his affidavit by way of evidence as
Ex.MW1/A, reiterating the factual contents of the written
statement of management on solemn affirmation. He also relied
upon the following documents:
(i) Ex.MW1/1: Authority letter dated 16.04.2022 issued
by the management in his favour;
(ii) Ex.MW1/2: Notice dated 26.07.2018 issued to the
workman;
(iii) Ex.MW1/3: Email dated 29.09.2018 written to the
workman by the management.
The management's evidence was, thereafter, closed.
7. I have heard the arguments and gone through the
records. I have also gone through the written arguments filed by
the workman. The AR for the management also relied upon the
LID No.351/2019
Sh. Mohit vs. M/s. Masyc Projects Pvt. Ltd.
Page No.5/22
following judgments in support of his contentions:
(i) S. N. Tiwari v. Govt. of NCT, Delhi & Anr.,
reported as 2009(LB1)GJX0572Del; and
(ii) Prabhakar v. Joint Director, Sericulture Department
& Anr., reported as 2015(LB1)GJX0863Del.
8. My issuewise findings are as under:
Issues No.1 & 2:
1. Whether the services of the workman were
terminated illegally and/or unjustifiably by the management and
if so, to what consequential relief is the workman entitled for?
OPW.
2. Whether the act of management in terminating the
services of workman is justified owing to his gross misconduct
and unauthorized absenteeism?OPM
9. The onus to prove Issue no.1 was on the workman
whereas the Issue No.2 was to be proved by the management.
The statement of claim of the workman and the defence of the
management have been mentioned at the outset.
The workman claimed that he was employed by the
management on 12.07.2012; his last drawn salary was
Rs.15,325/ and he was illegally terminated on 26.07.2018.
The management on the other hand submitted that
he was terminated from services in accordance with Cl.3(a) of
appointment letter dated 12.07.2012; the workman was issued
various warnings during his course of employment pertaining to
unauthorized absenteeism and despite opportunities, the
LID No.351/2019
Sh. Mohit vs. M/s. Masyc Projects Pvt. Ltd.
Page No.6/22
workman did not show any sign of improvement; the conduct of
the workman started affecting the smooth functionally of the
organization.
10. The WW1/workman/claimant examined himself
vide his affidavit Ex.WW1/A. The witness was crossexamined
by the AR of the management and during crossexamination he
deposed that:
"I have not issued any demand notice to the management before
filing of claim. I have not made any complaint for getting my
blank signature by the management as alleged in para 2 of my
statement of claim. It is correct that I was paid three months
advance salary of Rs.45,975/ towards notice pay by cheque
no.211420 dated 26.07.2018 drawn on Bank of India, Rajouri
Garden Branch. It is correct that I was paid the salary and EL
encashment by the management. (Vol.) It was paid later on in my
account in Bank of India, Mayapuri Branch. It is correct that on
29.09.2018, I sent mail to the management asking for my
experience certificate. I have read the appointment letter
Ex.WW1/7 and signed the same at point A. It is correct that I was
issued letter Ex.MW1/X1 to MW1/X3 by the management during
my service. It is correct that letter Ex.MW1/X4 was issued by
me. (Vol.) It was issued under force. I have not made any
complaint regarding such forceful letter".
The workman in his statement of claim stated that he
issued notice to the management through Union on 25.07.18 and
therefore, he was terminated illegally on 26.07.18 whereas in the
affidavit of evidence Ex.WW1/A, a new stand has been taken
that he has issued notice dated 23.07.2018, 25.07.18, 30.07.18
and 31.07.18 to the management which was not replied. The
workman claimed that he was terminated on 26.07.2018 and
LID No.351/2019
Sh. Mohit vs. M/s. Masyc Projects Pvt. Ltd.
Page No.7/22
therefore, there is no merit in the contention or reason for issuing
any legal notice dated 25.07.18 for filing of the claim as
mentioned in the claim petition. Further, the testimony of witness
WW1/A in regard to issuance of the legal notice to the
management is contrary to his contention in the statement of
claim and therefore, is not reliable. Further, the workman during
his crossexamination categorically deposed that he has not
issued any demand notice to the management before filing of the
claim. Though the management admitted the appointment of the
workman, the MW1 proved the warnings letters issued to the
workman vide Ex.MW1/X1 to Ex.MW1/X3 and the testimony of
the MW1 in this respect is unimpeached/uncontroverted. The
workman also admitted the documents which are deposed by the
MW1 i.e. appointment letter, his apology letter Ex.MW1/X4 and
termination letter Ex.MW1/2. The workman himself requested
for his experience certificate vide Ex.MW1/3. Further, the
documents relied by the MW1 is sufficient to show that the
workman was terminated in terms of appointment letter
Ex.MW1/7 being trainee.
11. The testimony of the witness/workman and his
crossexamination recorded above is sufficient to show that his
version is not consistent and is contradictory to each other. As
far as the contention of Ld. AR for the workman that neither any
notice was issued by the management nor any internal inquiry
LID No.351/2019
Sh. Mohit vs. M/s. Masyc Projects Pvt. Ltd.
Page No.8/22
was conducted against the workman by the management for the
alleged misconduct, this Court is of the opinion that such inquiry
is only required when the management intends to inflict some
punishment upon the workman.
Honble Delhi high Court in Diamond Toys Company
(P.) Ltd. Vs. Toofani Ram and Anr., W.P. (C) No. 4501/04,
decided on 07.02.2007 held that
"6. It is commonly known that a person, who is working in the
industry keeps on trying for better jobs and better opportunities.
The moment he gets better job, he is free to leave his previous
employer. The industrial law does not require him to pay any
compensation to the employer while leaving his job, as the
industrial laws require an employer to pay retrenchment
compensation when employer wants to terminate the workman.
Thus, there are no fetters on the workman on leaving the job
while there are fetters on the employer in terminating the service
of an employee. If a workman leaves his job all of a sudden and
stops attending the workplace of the employer, Industrial Dispute
Act does not put any obligation on the employer to call back the
workman and request him to come and join his duties. Such a
request can be made by the employer only when employer
considers that a useful workman should not leave the job or
where a workman is governed by certain rules and regulations
under State employment and the employer is supposed to hold an
enquiry under the service rule before termination of service of an
employee. Where the workman is free to leave and join another
employer without even a notice and without obtaining a no
objection from his employer, the employer cannot be compelled
to call such a workman for joining the duties or to conduct an
enquiry into the absence of the workman and then terminate his
services. Leaving the services of an employer by the workman is
a valid mode of his abandonment and there is no illegality
attached to a workman leaving the services of his previous
employer and joining another employer. If the employer does not
consider the abandonment of service or leaving the service by a
workman as a misconduct, the law cannot force the employer to
consider such abandonment as a misconduct and hold an enquiry.
Misconduct of an employee is the one which an employer
LID No.351/2019
Sh. Mohit vs. M/s. Masyc Projects Pvt. Ltd.
Page No.9/22
considers as the misconduct. An enquiry is required to be held
only where an employer intends to impose punishment on the
employee for an alleged misconduct. if an employer does not
intend to impose any punishment on the employee and considers
that if the employee has left his service, let it be so, the law
cannot compel the employer to hold an enquiry and punish an
employee for the misconduct.
7. I consider that it was not necessary for the employer to hold an
enquiry into the abandonment of the service by the respondent. It
was for the respondent to prove that his services were terminated
for some reasons by the employer or without any reason by the
employer. The respondent had taken a stand which was found to
be false. Under these circumstances, the Labour Court's
conclusion that it was a case of retrenchment is perverse".
The ratio of the judgment is squarely applicable in
the facts and circumstances of this case. It is reiterated that the
workman failed to discharge the onus in this case.
12. Hon'ble High Court of Delhi in the case of "Tej Pal
Vs. Gopal Narain & Sons & Anr", (2006) 132 DLT
311, decided on 28.08.2006 discussed the retrenchment as
envisaged under Section 25F is defined under Section 2(oo) of
the Industrial Disputes Act, which reads as under
"2(oo) 'retrenchment' means the termination by the employer
of the service of a workman for any reason whatsoever,
otherwise than as a punishment inflicted by way of
disciplinary action but does not include
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of
superannuation if the contract of employment between the
employer and the workman concerned contains a stipulation
in that behalf; or
(bb) termination of the service of the workman as a result of
LID No.351/2019
Sh. Mohit vs. M/s. Masyc Projects Pvt. Ltd.
Page No.10/22
the nonrenewal of the contract of employment between the
employer and the workman concerned on its expiry or of
such contract being terminated under the stipulation in that
behalf contained therein or)
(c) termination of the service of a workman on the ground of
continued illhealth."
8. A perusal of Section 2(oo) of the Act shows retrenchment
means the termination of services of a workman by
management. Where management does not terminate services
of the workman and writes a letter to the workman to come
and join duties, no inference can be drawn that services of the
workman were terminated. It was not the case of the
workman before the Labour Court that after receiving letter
of the management asking him to join duties, he had gone to
join duties and was not allowed to join duties. The contention
of the workman that employer was supposed to initiate an
inquiry into his absence before terminating his services, is
baseless because in this case employer had not terminated
services. An employer who writes a letter to the workman to
join duties since he was absent, cannot be said to have
terminated the services of the petitioner. Only if the petitioner
had not been allowed to join duties on his reporting, it could
have been said that his services were terminated".
13. It is further settled that where an employer has failed
to make an enquiry before dismissal or discharge of a workman,
it is open for him to justify the action before the labour court by
leading evidence before it. It is relevant to refer the observations
of Hon'ble Supreme Court in Civil Appeal No.142/2021 titled
State of Uttarakahand and Ors. vs. Smt. Sureshwati decided on
20.01.2021. As held in the relevant para no.14
14. This Court has in a catena of decisions held that where an
employer has failed to make an enquiry before dismissal or
discharge of a workman, it is open for him to justify the action
before the Labour Court by leading evidence before it. The entire
matter would be open before the tribunal, which would have the
LID No.351/2019
Sh. Mohit vs. M/s. Masyc Projects Pvt. Ltd.
Page No.11/22
jurisdiction to satisfy itself on the evidence adduced by the
parties whether the dismissal or discharge was justified. A four
Judge Bench of this Court in Workmen of the Motipur Sugar
Factory Private Ltd. v. Motipur Sugar Factory (AIR 1965 SC
1803) held that:
" 11. It is now well settled by a number of decisions of this Court
that where an employer has failed to make an enquiry before
dismissing or discharging a workman it is open to him to justify
the action before the tribunal by leading all relevant evidence
before it. In such a case the employer would not have the benefit
which he had in cases where domestic enquiries have been held.
The entire matter would be open before the tribunal which will
have jurisdiction not only to go into the limited questions open to
a tribunal where domestic enquiry has been property held (see
Indian Iron & Steel Co. v. Workmen (AIR 1958 SC 130) but also
to satisfy itself on the facts adduced before it by the employer
whether the dismissal or discharge was justified. We may in this
connection refer to Sana Musa Sugar Works (P) Limited v.
Shobrati Khan (AIR 1959 SC 923), Phulbari Tea Estate v.
Workmen (AIR 1959 SC 1111) and Punjab National Bank
Limited v. Workmen (AIR 1960 SC 160). These three cases were
further considered by this Court in Bharat Sugar Mills Limited
v. Jai Singh (1962) 3 SCR, 684 and reference was also made to
the decision of the Labour Appellate Tribunal in Ram Swarath
Sinha v. Belsund Sugar Co. (1954) LAC 697 . It was pointed out
that "the important effect of omission to hold an enquiry was
merely this: that the tribunal would not have to consider only
whether there was a prima facie case but would decide for itself
on the evidence adduced whether the charges have really been
made out". It is true that three of these cases, except Phulbari Tea
Estate case , were on applications under Section 23 of the
Industrial Disputes Act, 1947. But in principle we see no
difference whether the matter comes before the tribunal for
approval under Section 33 or on a reference under Section 10 of
the Industrial Disputes Act, 1947. In either case if the enquiry is
defective or if no enquiry has been held as required by Standing
Orders, the entire case would be open before the tribunal and the
employer would have to justify on facts as well that its order of
dismissal or discharge was proper. Phulbari Tea Estate
case was on a reference under Section 10, and the same principle
was applied there also, the only difference being that in that case
there was an inquiry though it was defective. A defective
enquiry in our opinion stands on the same footing as no enquiry
and in either case the tribunal would have jurisdiction to go into
LID No.351/2019
Sh. Mohit vs. M/s. Masyc Projects Pvt. Ltd.
Page No.12/22
the facts and the employer would have to satisfy the tribunal that
on facts the order of dismissal or discharge was proper."
Subsequently in Delhi Cloth and General Mills
Co. v. Ludh Budh Singh (1972) 1 SCC 595 this Court held that :
"(1) If no domestic enquiry had been held by the management, or
if the management makes it clear that it does not rely upon any
domestic enquiry that may have been held by it, it is entitled to
straightway adduce evidence before the Tribunal justifying its
action. The Tribunal is bound to consider that evidence so
adduced before it, on merits, and give a decision thereon. In such
a case, it is not necessary for the Tribunal to consider the validity
of the domestic enquiry as the employer himself does not rely on
it.
....
(3) When the management relies on the enquiry conducted by it, and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management, are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.
Reliance is also placed on the judgment of this Court in Workmen of Firestone Tyre & Rubber Co. of India (P) Ltd. v. The Management of Firestone Tyre & Rubber Co. of India (P) Ltd and Others. (1973) 1 SCC 813 wherein the broad principle regarding holding of the enquiry were spelt out as:
"32. From those decisions, the following principles broadly emerge:
"(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality. (3) When a proper enquiry has been held by an employer, and LID No.351/2019 Sh. Mohit vs. M/s. Masyc Projects Pvt. Ltd.Page No.13/22
the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide. (4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct. (9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the LID No.351/2019 Sh. Mohit vs. M/s. Masyc Projects Pvt. Ltd.
Page No.14/22punishment is so harsh as to suggest victimisation. (10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Management of Panitole Tea Estate v. Workmens, (1971) 1 SCC 742 within the judicial decision of a Labour Court or Tribunal.
..........
40. Therefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under Section 11A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case and hold that no misconduct is proved.
41. We are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference under Section 11A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to re appraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, Section 11A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11A."
LID No.351/2019Sh. Mohit vs. M/s. Masyc Projects Pvt. Ltd.
Page No.15/22The contention of the AR of the workman that no notice was issued to the workman nor any enquiry was held appears to have no substance as the workman was terminated in terms of appointment letter.
14. In the given facts and circumstances, on the basis of material placed and proved on record and in view of aforesaid discussions, it is held that the act of the management in terminating the services of the workman was justified owing to his gross misconduct and unauthorized absenteeism and that his services was never terminated illegally and unjustifiably by the management. Accordingly, Issue no.1 is decided against the workman whereas Issue No.2 is decided in favour of management and against the workman/claimant.
15. Before parting, it is further to be seen whether an industrial dispute came into existence or not prior to filing of the present claim. In case no industrial dispute came to be existed before filing of the claim then claim is not maintainable. It is well settled law that an industrial dispute comes into existence after a demand is raised by the workman regarding his grievance and the same has been declined by the management.
16. The Hon'ble Supreme Court in case Sindhu Resettlement Corporation Ltd., Vs. Industrial Tribunal of Gujrat LID No.351/2019 Sh. Mohit vs. M/s. Masyc Projects Pvt. Ltd.
Page No.16/22and others, AIR 1968, Supreme Court 529 (V 55 C 115) was pleased to observe that serving of demand notice to the management prior to the filing of the case was essential. Hon'ble Supreme Court held as under : "It may be that the Conciliation officer reported to the Government that an industrial dispute did exist relating to the reinstatement of respondent No. 3 and payment of wages to him from 21 st February, 1958, but when the dispute came up for adjudication before the Tribunal, the evidence produced clearly showed that no such dispute had ever been raised by either respondent with the management of the appellant. 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 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. The only reference that the Government could have made had to be related to payment of retrenchment compensation which was the only subject matter of dispute between the appellant LID No.351/2019 Sh. Mohit vs. M/s. Masyc Projects Pvt. Ltd.
Page No.17/22and the respondents".
17. It has been held by the Hon'ble Delhi High Court in the case of Fedderslloyd Corpn. Pvt. Ltd. vs. LG of Delhi (AIR 1970 DELHI 60) that prior to making a demand to the Conciliation Officer, the workman has to raise his/her demand with the management to bring an industrial dispute into existence. The relevant para of the judgment reads as under:
"We are of the view that the decision of Supreme Court in AIR 1968 SC 529 referred to above has finally established the proposition that a demand by the workman must be raised first on the Management and rejected by them before industrial dispute can be said to arise and exist and that the making of such a demand to the Conciliation Officer and its communication by him to the Management, who reject the same is not sufficient to constitute an industrial dispute".
Similarly, in Orissa Industries Pvt. Ltd vs. Presiding Officer IT [1975 (31) FLR 305] the Hon'ble High Court has categorically held that in the absence of a demand notice, no industrial dispute can be said to exist between the parties.
18. Hon'ble High Court of Delhi further in case Nagender Sharma vs Management of M/s Rajasthan Timber Corporation, ILR (2006) 1 Delhi 1030 and in another case S.N. Tiwari vs Govt of NCT of Delhi and anr. W.P. (C) 593/2008 had LID No.351/2019 Sh. Mohit vs. M/s. Masyc Projects Pvt. Ltd.
Page No.18/22discussed the Sindhu Resettlement judgment (Supra) and held that the service of the demand notice was essential prior to the filing of the case against the management. Hon'ble High Court of Delhi in case S.N. Tiwari vs Govt of NCT, Delhi & Anr. in W.P. (C.) No. 593/2008 had observed in para no.4 as under:
"Mr. N.P. Singh learned counsel appearing on behalf of the petitioner has contended that the judgment of the Supreme Court in Sindhu Resettlement Corporation Ltd's case (Supra) has lost its ground in view of insertion of Section 2A in the Industrial Disputes Act, 1947 by way of amendment in the Act w.e.f. 01.12.1965. Learned counsel appearing on behalf of the petitioner has also placed reliance on two judges Bench decision of the Supreme Court in Shambhu Nath Goyal Vs. Bank of Baroda (1978) 2 SCC 353 to contend that for coming into existence of an industrial dispute, a written demand by the workman is not a sine qua non and according to learned counsel, an industrial dispute comes into existence as soon as the workman approaches the Conciliation Officer with his grievance against the alleged termination. This argument advanced on behalf of the petitioner is of no consequence because the judgment of the Supreme Court in Shambhu Nath Goyal's case (Supra) has already been considered by this Court in its earlier judgment in Nagender Sharma's case (Supra) where the judgment in Sindhu Resettlement Corporation Ltd's case was also considered and after consideration of those judgments, it was held that unless the workman serves a demand notice for his reinstatement on the management, the industrial dispute does not come into existence till that time. The Labour Court has placed reliance on the judgment of this Court in Nagender Sharma's case in which all judgments including the judgment in Shambhu Nath Goyal's case have been considered and therefore this Court is of the opinion that the view taken by the court below in the impugned award by no means can be said to be perverse calling for an interference by this Court in exercise of its extraordinary discretionary writ jurisdiction under Article 226 of the Constitution of India. This writ petition therefore fails and is hereby dismissed in limine."LID No.351/2019
Sh. Mohit vs. M/s. Masyc Projects Pvt. Ltd.
Page No.19/2219. Though Hon'ble Supreme Court in case Shambhu Nath Goel vs Bank of Baroda, AIR 1978 (2) SCC 353 observed that a written demand by the workman is not a sine qua non but Hon'ble Supreme Court in case Sindhu Resettlement Corporation Ltd. Vs Industrial Tribunal of Gujrat and others, AIR 1968, Supreme Court 529 (V55C 115) has observed that in the absence of written demand notice an Industrial Dispute did not exist. Even otherwise, Hon'ble Supreme Court in case Shambhu Nath Goel's case (Supra) did not over rule the judgment passed by Hon'ble Supreme Court in case Sindhu Resettlement (supra). Since Hon'ble High Court of Delhi in case S.N. Tiwari vs Govt of NCT Delhi and Anr in W.P.(C) No.593/2008, after considering the judgments passed by Hon'ble Supreme Court in cases Sindhu Resettlement Corporation Ltd. Vs Industrial Tribunal of Gujrat and others, AIR 1968, Supreme Court 529 (V55C 115) and Shambhu Nath Goel vs Bank of Baroda Jullundure, 1978 AIR 1088, had upheld the judgment passed by the Labour Court, wherein, the Labour Court had relied upon the judgment passed by Hon'ble Supreme Court in case Sindhu Resettlement (supra) and held that the impugned award passed by the Labour Court in the said case, by no means can be said to be perverse calling for any interference by the Hon'ble High Court in Exercise of its extra ordinary discretionary writ jurisdictions under Article 226 of the Constitution of India. Therefore, I am of the view that the claimant was under obligation to serve the LID No.351/2019 Sh. Mohit vs. M/s. Masyc Projects Pvt. Ltd.
Page No.20/22demand notice to the management prior to the filing of the case against the management and in the absence of service of demand notice to the management by the claimant prior to the filing of the case against it, the Industrial Dispute did not exist between the claimant and the management.
20. The workman was required to prove on record that prior to filing the present claim, he had raised his demand with the management. In the present case, the workman stated that he was illegally terminated on 26.07.18. The witness during cross examination categorically deposed that: "I have not issued any demand notice to the management before filing of claim".
It is clear from the crossexamination of the workman that he had not made any oral/written demand with the management. The workman was required to establish on record that he had raised his demand through a demand notice. However, the workman has not pleaded in the statement of claim that he had sent any demand notice. Admittedly, the workman has not sent any demand notice to the management before filing the present claim. Since, in the present case, no demand was raised by the workman, thus, in view of the settled law, no industrial dispute came into existence prior to filing of the present claim. Thus, in view of the judgment of the Hon'ble Delhi High Court passed in the case of Fedderslloyd LID No.351/2019 Sh. Mohit vs. M/s. Masyc Projects Pvt. Ltd.
Page No.21/22(supra), the present claim is not maintainable and same is liable to be dismissed.
ISSUE NO.3:
RELIEF:
In view of the aforesaid discussions, it is held that since in the present case, no industrial dispute existed prior to filing of the present claim, therefore, the claim petition filed by the workman is not maintainable and the same is hereby dismissed.
21. Digitally signed copy of the award be sent to the Office of the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules and judicial file be consigned to Record Room after compliance of necessary legal formalities.
22. The award be also uploaded on server. GORAKH Digitally signed by GORAKH NATH NATH PANDEY Date: 2022.09.16 PANDEY 16:04:44 +0530 Announced in the open court (Gorakh Nath Pandey) on 07.09.2022 Addl. District & Sessions Judge Presiding Officer Labour Court IV Rouse Avenue District Courts.
LID No.351/2019Sh. Mohit vs. M/s. Masyc Projects Pvt. Ltd.
Page No.22/22