Delhi District Court
Whether The vs Project And on 25 August, 2010
IN THE COURT OF DR. T. R. NAVAL ADDITIONAL DISTRICT &
SESSIONS JUDGE / PRESIDING OFFICER LABOUR COURT
KARKARDOOMA COURTS, DELHI.
ID NO.450/10 (New) 74/203 (Old)
Date of Institution : 10.01.2003
Date of Arguments: 23.08.2010
Date of Award : 25.08.2010
IN THE MATTER BETWEEN:
M/s V. K. Kharbanda Associate,
C166, Preet Vihar, Delhi.
The management
AND
Sh. Gajraj Singh
C/o Samajwadi Karamchari Union,
35, Govind Khand, Vishkarma Nagar,
Delhi95 The workman
A W A R D
The Secretary (Labour), Government of NCT of Delhi
vide its order No.F.24(1936)/2002Lab./2001115 dated 25.10.2002
referred an industrial dispute between the above mentioned parties to
the Labour Court with the following terms of reference:
"Whether Shri Gajraj Singh s/o Sh. Ram Narain Singh has left
the job after full & final settlement of his accounts or his
ID No.450/10 Page 1 of 16
services have been terminated illegally and, or unjustifiably by
the management, and if so, to what sum of money as
monetary relief alongwith consequential benefit in terms of
existing laws/Government notifications and to what other relief
is he entitled and what directions are necessary in this
respect?"
2. The facts in brief of the workman case, are that the
workman had been working with the management as driver and his
last drawn salary was Rs.4000/ p.m. Although, he was working with
honesty and sincerity and he did not give any chance of complaint to
the management, yet the management deprived him of many legal
facilities such as issuance of appointment letter, maintenance of
attendance register, wage slip, casual and earned leave, overtime,
etc. His persistent demand for these facilities, annoyed the
management and due to that reason, the management terminated his
services on 9.11.2001 without paying him wages for the month of
October, 2001, without assigning him any reason, issuing any notice,
giving him charge sheet and conducting any domestic enquiry. He
made complaint to Labour Department through his union. The Labour
Inspector Sh. Rishpal Singh and Sh. Subhash visited the
management but the management did not produce any record. He
sent a notice dated 17.01.2002 to the management vide registered
AD, but the management did not send any reply. On 24.01.2002, it
was told by the management that it had appointed new driver and his
ID No.450/10 Page 2 of 16
services were not required. In this way, the services of workman were
terminated illegally, in violation of provisions of Section 25F of the
Industrial Disputes Act, 1947, here in after referred to as the Act, and
principles of natural justice. He tried his best to get a job elsewhere
but he could not get the same. The workman prayed for passing an
award in his favour and against the management for his
reinstatement in service with full backwages and continuity in service.
3. The management admitted that the workman was
working as driver with it. The management contested his case on the
ground that the management is not covered under the definition of
'Industry' as defined under 2(j) of the Act because the workman was
only a personal or domestic driver of the proprietor, who was
rendering only professional/consultancy services like an individual
advocate or doctor. It was also pleaded that at the time of payment of
wages for the month of October, 2001, the workman requested for
giving him Rs.500/ as extra sum as an advance. A cheque of
Rs.4500/ was given to him which was cleared on 07.11.2001. He did
not turn up on 08.11.2001. He also expressed his desire to pay his
salary for a week as he was not able to continue with his job.
Accordingly, he was given Rs.1000/, less Rs.500/ as an advance,
as his wages. He signed the vouchers in token of having received the
same. In this way, the workman left his job of his own after receiving
ID No.450/10 Page 3 of 16
his full and final dues. He joined his services as driver with Sh.
Pradeep Jain, B53, Vivek Vihar, Delhi. He also served with Sh.
Abhay Tandon. The management denied all other allegations and
prayed for dismissal of the statement of claim.
4. On the pleadings of the parties, following issues were
framed by my Ld. Predecessor:
1. Whether the claimant is a workman within
the meaning of Section 2(s) of the I.D. Act?
2. As per terms of reference.
3. Whether the management is not an industry within
the meaning of Section 2(j) of the I.D. Act? OPM
5. In support of his case, the workman examined himself as
WW1. He proved his affidavit as Ex. WW1/A and placed reliance on
documents Ex. WW1/1 to Ex. WW1/8.
In order to prove its case, the management examined
Shri V. K. Kharbanda, Proprietor as MW1. He also filed his affidavit
as Ex.MW1/A and relied on documents Ex. MW1/1 to Ex.MW1/4.
6. I have heard the arguments addressed by Authorised
Representatives of both the parties and perused the file.
7. On perusal of the pleadings of the parties, analysing
evidence and material placed on record and considering the
ID No.450/10 Page 4 of 16
arguments addressed by Authorised Representatives for the parties, I
have formed my opinions on the issues and that are discussed here
in below. For the sake of clarity and convenience, issue No. 3 is
decided before the decision of issue No. 1 and 2.
FINDINGS ON ISSUE NO. 3
8. The burden to prove this issue was on the management
and it had to prove that management is not an 'Industry'.
Section 2(j) of the Act runs as under:
"2.Definitions. In this Act, unless there is anything repugnant
in the subject or context,
(a) to (i)***
[(j) "industry" means any business, trade, undertaking,
manufacture or calling of employers and includes any calling
service, employment, handicraft or industrial occupation or
avocation of workmen}"
9. Counsel for the management relied on a case
Bangalore Water Supply v. A. Rajappa, AIR 1978 Supreme Court
548. It was held therein that:
"17. This leads one on to consider another kind of test. It is that,
wherever an industrial dispute could arise between either
employers and their workmen or between workmen and
workmen, it should be considered an area within the sphere of
'industry' but not otherwise. In other words, the nature of the
activity will be determined by the conditions which give rise to
the likelihood of occurrence of such disputes and their actual
ID No.450/10 Page 5 of 16
occurrence in the sphere. This may be a pragmatic test. For
example, a lawyer or a solicitor could not raise a dispute with his
litigants in general on the footing that they were his employers.
Nor could doctors raise disputes with their patients on such a
footing. Again the personal character of the relationship between
a doctor and his assistant and a lawyer and his clerk may be of
such a kind that it requires complete confidence and harmony in
the productive activity in which they may be cooperating so
that, unless the operations of the solicitor or the lawyer or
the doctor take an organised and systematised form of a
business or trade, employing a number of persons, in
which disputes could arise between employers and their
employees, they would not enter the field of industry. The
same type of activity may have both industrial and nonindustrial
aspects or sectors."
[Emphasis supplied]
10. On perusal of the ruling cited above, I find that Hon'ble
High Court has laid down the basic principles for deciding as to which
of the management is covered under the definition of 'industry and
which are not? Besides, the evidence on record has established that
there was 'systematic business' of the management in the form of
consultancy, so this case provides benefit to the workman instead of
the management.
11. Counsel for the management further relied on a case
Karwa Commercial (P) Ltd. v. Baburao K. Malgaonkar & Anr.,
2008 LLR 1133. In this case Bombay High Court observed that:
ID No.450/10 Page 6 of 16
"In order to constitute an industry, the establishment should be
engaged in an activity which is predominantly carried on by
employment of organised labour force for the production of
distribution of goods or for rendering of material services to the
community at large or a part of such community. An activity
pertaining to or in relation to private and personal employment, it
was held there, would have to be excluded from the definition of
industry, the employment of the workman in that case was of a
nature of a private and personal employment in a shop for doing
miscellaneous odd jobs. The Court held that the establishment
was not an "industry" within the meaning of the said Act.***
Applying the ratio of the decision of the Division Bench, I am of
the view that Undertaking of the petitioner cannot be described
as an industry within the meaning of I.D. Act. The petitioner is
basically a family run business which did not engage more than
two employees for doing incidental work. No cooperation
between the employer and the employee in the main activity of
the petitioner i.e. which is trading and the activity does not
suggest the existence of any organised labour for carrying on a
business. There is no organised or systematic activity
comprised of cooperation between the employer and employee
on a scale, necessary to fulfil the definition of the expression
'industry', vide Bangalore Water Supply case."
11. On perusal of this ruling, I find that above case is not
going to provide any benefit to the workman as facts of that case are
quite different. In that case, only two employees were working with
the management and in the present case, there were five employees
who were working with the management at the relevant time and this
fact has been established by the workman during his cross
examination. He stated that Sh. V.K. Kharbanda used to carry out
ID No.450/10 Page 7 of 16
survey of the factories for insurance claims alone. Sometimes, he
asked others to do so. Apart from him, in the office of Sh. V.K.
Kharbanda, there was a lady who used to work on computer, a
person who used to do typing and one another retired person who
used to come to office. Besides, the management was carrying out
the systematic activities. This is a proprietorship concern that
provides services to the customers having regular income. Moreover,
the workman was also engaged in the activities of the management
and he used to go to bank to collect money for the firm as established
in the cross examination of the workman, besides, serving Sh. V.K.
Kharbanda in the capacity of a driver.
In view of above reasons, discussion and evidence on
record and particularly discussed here in above, it has been
established that the management is covered under the definition of
'industry' as given u/s 2(j) of the Act and therefore, issue No. 3 is
decided in favour of the workman and against the management.
FINDINGS ON ISSUE NO. 1
13. The burden to prove this issue was on the workman and
he had to prove that he was covered under the definition of 'workman'
mentioned in Section 2(s) of the Act.
Section 2 (s) of the Act provides as under:
ID No.450/10 Page 8 of 16
"2.Definitions. In this Act, unless there is anything repugnant in the
subject or context.
(a) to (r)***
[(s) "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) ***
(ii)***
(iii)who is employed mainly in a managerial or administrative
capacity, or
(iv)who, being employed in a supervisory capacity, draws wages
exceeding one thousand six hundred 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.]"
14. WW1 on this aspect deposed in his affidavit Ex.WW1/A
that he was working with the management as a driver for the last 8
years and he was getting Rs. 4000/ per month as his salary. WW1 in
his cross examination, stated that the wages used to be paid by Sh.
V. K. Kharbanda who was the proprietor of the firm. Nothing in his
cross examination could come out which could establish that Sh.
Gajraj Singh was not covered under the definition of 'workman'.
Therefore, on the basis of evidence on record, and
particularly discussed here in above, issue No. 1 is decided in favour
ID No.450/10 Page 9 of 16
of the workman and against the management and it is held that the
workman Sh. Gajraj Singh is covered under the definition of
'workman' as mentioned in Section 2(s) of the Act.
FINDINGS ON ISSUE NO. 2
15. For the sake of clarity, this issue is divided into two parts:
(i) Whether Sh. Gajraj Singh s/o Sh. Ram Narain Singh
has left the job after full and final settlement of his
accounts? or
(ii)Whether his services have been terminated illegally
and/or unjustifiably by the management?
16. The burden to prove point No.1 was on the management
and it had to prove that the workman left his job after making
settlement and taking his full and final dues. I have examined the
evidence on record and come to the conclusion that management
has failed to establish that the workman left his job after full and final
settlement of his account. The reasons which support my decision
are, firstly, the management has not filed and proved any document
to show that the workman resigned form his job or he wanted to
leave the job of the management. The management has filed
voucher of Rs.500/ dated 09.11.2001, Ex.WW1/M1 duly signed by
the workman as a token of having received Rs.500/. The writing in
English language on Ex. WW1/M1 that he received his full and final
ID No.450/10 Page 10 of 16
settlement of his account is not in handwriting of the workman. This
document can only be treated as an acknowledgement of salary for
the period from 01.11.2001 to 07.11.2001 minus an advance of
Rs.500/ taken by him. It cannot be treated as a document of
resignation or document proving that the workman voluntarily
abandoned his job after receiving his full and final dues from the
management.
17. Secondly, WW1 in his affidavit, Ex.WW1/A, stated that
he went to resume his duty on 09.11.2001 but Mr. Kharbanda did not
allow him to resume his duties and thereby terminated his services.
In cross examination, the workman denied that he expressed his
inability to work after 09.11.2001 with the management and only
demanded Rs.1000/ as wages for working a week in November,
2001. Nothing in cross examination could come out on record which
could establish that the workman tendered his resignation or left his
job voluntarily or he received his full and final dues from the
management after leaving his job.
18. Thirdly, in cross examination WW1 admitted a
suggestion that the management offered a sum of Rs.14,000/ to him
for amicable settlement of the dispute with the management. Another
suggestion was also admitted by the workman WW1 that he did not
ID No.450/10 Page 11 of 16
agree to receive Rs. 20,000/ offered by the management for his full
and final settlement. This has established that even the management
was aware that the workman did not leave his job voluntarily and did
not settle his account that is why initially he was offered Rs.14,000/
and subsequently, a sum of Rs.20,000/ was offered to him for
settlement of his dispute with the management.
In view of the reasons, discussion and evidence on
record and particularly discussed here in above, this issue is decided
in favour of the workman and against the management and it is held
that the workman did not leave his job after full and final settlement of
his accounts.
FINDINGS ON POINT NO. II
19. The burden to prove this point was on the workman. It is
not in dispute that Sh. Gajraj Singh joined the management as a
driver. It is also not in dispute that he worked for a period of more
than 240 years in one calendar year. It is not in dispute that he was
neither issued any notice nor any charge sheet. No enquiry was held
against him for any misconduct. It has also been held here in above
that workman did not leave his job voluntarily after full and final
settlement with the management Consequently, it stands established
that refusal for duties to the workman in the circumstances
mentioned above amounted to termination of his services not only
ID No.450/10 Page 12 of 16
illegally but also unjustifiably in as much as the management did not
comply the provisions of Section 25F of the Act and the principles of
natural justice.
In view of the reasons, discussion and evidence on
record and particularly discussed here in above, this point is also
decided in favour of the workman and against the management and it
is held that the management terminated services of the workman not
only illegally but also unjustifiably.
20. As regards the gainful employment of the workman,
WW1 in his affidavit stated that he was jobless since the date of
termination of his services and he could not get employment else
where despite his best efforts. However, in cross examination, he
admitted that he had been working with Mr. Pradeep Jain r/o B53,
Vivek Vihar for about 12 days as a driver. He also admitted that he
was working with Sh. Achal Jain as a driver and he got that service
after submitting an application Ex.WW1/M2. During cross
examination, he also stated that he was not doing any job, he went to
his village for looking after his agricultural land. The cross
examination of WW1 has established that he worked intermittently as
and when he could secure the job and during agricultural seasons he
had been looking after his agricultural work.
ID No.450/10 Page 13 of 16
21. In case of Kishan Swaroop Vs. Project and
Equipment Corporation of India Ltd.,MANU/DE/3010/2007 it was
held by Delhi High Court that in each and every case of illegal and
unjustified termination of services, the relief of reinstatement and full
back wages is not to be granted automatically and the Labour Court
can mould the relief by granting lump sum compensation in lieu
thereof.
22. In case of Allahabad Jal Sansthan v. Daya Shankar
Rai,(2005) 5 SCC 124, it was held that:
"6. A law in absolute terms cannot be laid down as to in which
cases, and under what circumstances, full back wages can be
granted or denied. The Labour Court and/or Industrial Tribunal
before which industrial dispute has been raised, would be
entitled to grant the relief having regard to the facts and
circumstances of each case. For the said purpose, several
factors are required to be taken into consideration".
23. In case of Hindustan Tin Works (P) Ltd. v. Employees
(1979) 2 SCC 80 a threeJudge Bench of Apex Court laid down:
"11. In the very nature of things there cannot be a straitjacket
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
ID No.450/10 Page 14 of 16
view all the relevant circumstances. But the discretion must be
exercised in a judicial and judicious manner. The reason for
exercising discretion must be cogent and convincing and must
appear on the face of the record. When it is said that something
is to be done within the discretion of the authority, that
something is to be done according to the rules of reason and
justice, according to law and not humour. It is not to be arbitrary,
vague and fanciful but legal and regular***"
ORDER
24. Consequent upon the decisions of all the issues in favour of the workman and against the management, the terms of reference are answered in favour of the workman and against the management and it is held that workman Sh. Gajraj Singh did not leave his job after full and final settlement of his accounts with management. It is further held that the management terminated services of the workman not only illegally but also unjustifiably and therefore, he is entitled for relief. However, keeping in view the salary, length of service and all other relevant factors including the fact that drivers rarely remain without job, it would be just, fair and appropriate if an amount of Rs. 75,000/ (Rupees Seventy Five Thousand Only) is awarded in favour of the workman and against the management in lieu of his reinstatement in services and back wages. It is further clarified that if said amount is not paid to the workman within 30 days from the date of publication of this award, then the workman will also be entitled to ID No.450/10 Page 15 of 16 get future interest @ 8% from the date of award till realization of the said amount.
Award is accordingly, passed.
25. Copy of award be sent to the Secretary Labour, Govt. of NCT, Delhi for publication as per rules.
File be consigned to Record Room.
Announced in the open court th this the 25 day of August, 2010.
(DR. T. R. NAVAL) Additional District & Sessions Judge Presiding Officer: Labour Court Karkardooma Courts,Delhi.
ID No.450/10 Page 16 of 16