Delhi District Court
Smt. Mamta vs Mrs. Rachna Khanna (Principal) on 6 May, 2023
IN THE COURT OF GORAKH NATH PANDEY,
ADDL. DISTRICT & SESSIONS JUDGE/
PRESIDING OFFICER : LABOUR COURT - IV,
ROUSE AVENUE COURTS : NEW DELHI.
LIR No.556/2022
CNR No.DLCT130008432022
IN THE MATTER OF :
Smt. Mamta,
W/o Sh. Rinku Kumar,
R/o D-651, New Sanjay Colony Amar Colony,
Shahdara, Delhi - 110032.
Through
Sh. Umesh Dubey (General Secretary),
Rashtriya Mazdoor Sangh (Regd.1433),
157, Partap Khand Vishwakarma Nagar,
Shahdara, Delhi - 110095.
.....CLAIMANT
VERSUS
Mrs. Rachna Khanna (Principal)
M/s. Mother's Pride,
D-56, D-Block,
Vivek Vihar, Delhi - 110095.
Head Office : Mr. Atul Bhardwaj (Admin),
M/s. Mother's Pride
11/75, West Punjabi Bagh,
Delhi - 110026.
....MANAGEMENT
Date of institution of the case : 19.02.2022
Date of final arguments : 06.05.2023
Date of passing the Award : 06.05.2023
Decision : Allowed.
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AWAR D
1. Vide this Award, I shall decide the Industrial Dispute
which was referred by Dy. Labour Commissioner, East District
on a complaint filed by the aforesaid claimant against the
Management, vide reference no. F.24(109)/Lab/E/2014/9607
dated 23.12.2021, u/s 10(1)(c) and 12 (5) of The Industrial
Disputes Act, 1947, wherein the following reference was to be
answered :-
"Whether the services of workman Ms. Mamta W/o Sh. Rinku
have been terminated illegally and/or unjustifiably by the
Management and if so to what relief is she entitled and what
directions are necessary in this respect?"
2. Notice of the reference was issued to the claimant.
Pursuant thereto, the claimant appeared and filed her statement of
claim claiming that she was in the continuous service of the
management since 23.10.2015 at the post of "Maid/Aaya" and
her last drawn salary was Rs.10,482/- per month; she worked
honestly, efficiently, punctually and regularly and has never
given any chance of complaint to her superior or any official of
the management.
It is further stated in the statement of claim that
though the management provided the ESI and PF facility to the
claimant but did not pay her the minimum wages. The
management also deprived the claimant from legal facilities
under Labour Laws.
It is further stated in the statement of claim that the
claimant repeatedly demanded the legal facilities and minimum
wages from the management and due to the said reason, the
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management got annoyed and had grudge against her. The
management did not pay the earned wages of the claimant for the
month of March, 2020. During lockdown also, the claimant
demanded her earned wages from the management but of no
avail. Finally on 20.07.2020, the management terminated the
services of the claimant without paying due wages. Aggrieved
from the illegal termination, the claimant issued legal demand
notice dated 27.07.2020 to the management for her reinstatement
and payment of back wages which was not replied nor the
services of the claimant was reinstated. The claimant has also
filed her claim petition before the Conciliation Officer but no
settlement could be arrived at between the parties and hence the
present reference.
The claimant claims to be unemployed from the date
of her illegal termination. As claimed, the termination of service
of the claimant is illegal and unjustified as the management
violated the provisions of I.D. Act. It is prayed that an award be
passed in favour of claimant and against management directing
the management to reinstate her with consequential benefits
including full back wages and continuity in service.
3. Notice of the statement of claim was issued to the
management and management had filed its written statement
contended that the management no.1 and management no.2 are
both the employees of M/s. Mother's Pride and taking salaries
from M/s. Mother's Pride and how can one employee file claim
against the another employee. It is further contended that the
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present claim is liable to be dismissed as this court has no
jurisdiction to decide the case regarding disputes of educational
institutes; the dispute between the parties is not an industrial
dispute as M/s. Mother's Pride is not an industry as it is run by
Shakuntalam Educational Society. The management further
contended in the written statement that the claimant was
appointed on 01.04.2017 at the post of Maid/Aaya on the last
drawn salary of Rs.8385/-. It is further mentioned in the written
statement that the management did not terminate the claimant
from the job. It is further submitted in the written statement that
due to lockdown in March, 2020, April, 2021 and January, 2022,
the schools for small children like Mother's Pride remained
closed most of the time under the Govt. Order. Further, from the
order of MCD, the building of management was demolished.
Before 4-5 months, the building of management at D-56, Vivek
Vihar, Delhi again started and management called its workers but
the claimant refused to join the management. It is further
submitted in the written statement that the work performance of
the claimant was very poor and many oral warnings were given
by the management to her. The management further denied the
other avements of the statement of claim and lastly prayed to
dismiss the claim petition.
4. Vide order dated 14.09.2022, the following issues
were framed in view of pleadings of the parties :-
ISSUES:
(1) Whether the management is an 'Industry' as defined
under Industrial Disputes Act? OPW.
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(2) In terms of reference.
(3) Relief.
The case was, thereafter, fixed for evidence of
claimant.
5. In order to discharge the onus and prove the issue,
the claimant had appeared as witness and filed in evidence, her
examination in chief by way of affidavit Ex.WW1/A wherein she
had reiterated the contents of her statement of claim on solemn
affirmation. Besides this, she had also placed on record the
following documents :-
(i) Ex.WW1/1: Her aadhar card;
(ii) Ex.WW1/2 to Ex.WW1/4: Demand notice issued to
the management and its courier receipts;
(iii) Ex.WW1/5 to Ex.WW1/7: Shipment details;
(iv) Ex.WW1/8: Complaint dated 11.05.2020 made
against the management to Assistant Labour Commissioner;
(v) Ex.WW1/9: Proceedings sheet of Dy. Labour
Commissioner;
(vi) Ex.WW1/10: I-card issued by management to the
claimant; and
(vii) Ex.WW1/11 (OSR): e-Pehchan Card issued to the
claimant by ESIC.
The claimant was cross-examined by the AR for the
Management. The claimant's evidence was thereafter closed.
6. In rebuttal, management examined Sh. Manish
Mehra as MW1 who filed his evidence by way of affidavit as
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Ex.MW1/A, reiterating the factual contents made in the written
statement of management on solemn affirmation. Besides this, he
had also placed on record the following documents:
(i) Ex.MW1/1: Board Resolution;
(ii) Ex.MW1/2: Service record of the claimant;
(iii) Ex.MW1/3: his aadhar card;
(iv) Ex.MW1/4: Vacation notice u/s 349 dated
20.08.2019 issued by the EDMC; and
(v) Ex.MW1/5: Photographs showing demolition of
building.
MW1 was crossexamined by the AR for the
claimant. Managements' evidence was, thereafter, closed.
7. I have heard the final arguments on behalf of the
parties and gone through the relevant materials lying on record.
My issuewise findings are as under:
Issue No.1:
Whether the management is an 'Industry' as defined under
Industrial Disputes Act? OPW.
The onus to prove this issue was on the claimant but
this issue was framed in view of the objection of the management
in the written statement that the dispute between the parties is not
an industrial dispute as the management is run by Shakuntalam
Educational Society, East Delhi and is not an industry and is an
Educational Institute. Section 2 (j) of Industrial Disputes Act,
1947 defines "Industry" which is reproduced as below:
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"2 (j) 'Industry' means any systematic activity carried on by
co operation between an employer and his workmen
(whether such workmen are employed by such employer
directly or by or through any agency, including a
contractor) for the production, supply or distribution of
goods or services with a view to satisfy human wants or
wishes (not being wants or wishes which are merely
spiritual or religious in nature), whether or not,
(i) any capital has been invested for the purpose of carrying
on such activity; or
(ii) such activity is carried on with a motive to make any
gain or profit, and includes
(a) any activity of the Dock Labour Board established under
section 5A of the Dock Workers (Regulation of
Employment) Act, 1948 (9 of 1948 );
(b) any activity relating to the promotion of sales or
business or both carried on by an establishment. but does
not include
(1) any agricultural operation except where such
agricultural operation is carried on in an integrated manner
with any other activity (being any such activity as is
referred to in the foregoing provisions of this clause) and
such other activity is the predominant one. Explanation.
For the purposes of this sub clause," agricultural
operation" does not include any activity carried on in a
plantation as defined in clause (f) of section 2 of the
Plantations Labour Act, 1951 (69 of 1951 ); or
(2) hospitals or dispensaries; or
(3) educational, scientific, research or training institutions;
or
(4) institutions owned or managed by organisations wholly
or substantially engaged in any charitable, social or
philanthropic service; or
(5) khadi or village industries; or
(6) any activity of the Government relatable to the
sovereign functions of the Government including all the
activities carried on by the departments of the Central
Government dealing with defence research, atomic energy
and space; or
(7) any domestic service; or
(8) any activity, being a profession practised by an
individual or body or individuals, if the number of persons
employed by the individual or body of individuals in
relation to such profession is less than ten; or
(9) any activity, being an activity carried on by a co
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operative society or a club or any other like body of
individuals, if the number of persons employed by the co
operative society, club or other like body of individuals in
relation to such activity is less than ten;]
The claimant examined herself as WW1 and
deposed regarding this case. The employment of the claimant is
not denied by the management. The ratio of the judgment
decided by Hon'ble Delhi High Court in W.P.(C) No.5319/2014
in case titled Gobind Gidwani vs. United Schools Organization
of India and Division Bench of Hon'ble Madras High Court in
case tilted S. Thaligavathi v. Presiding Officer vide
W.A.Nos.1375 and 1376 of 2006 is squarely applicable in the
facts and circumstances of the case. Nothing was asked to the
claimant/WW1 during crossexamination in respect of the
management being not 'Industry' or engaged in various other
activities. Moreover, in view of the aforesaid judgments, the
issue that management herein is an 'Industry' is duly settled.
There is no merit in the objection of the management that it is not
an 'Industry'. This issue is accordingly decided in favour of the
claimant.
Issue No.2:
In terms of reference.
"Whether the services of workman Ms. Mamta W/o Sh. Rinku have been
terminated illegally and/or unjustifiably by the Management and if so to
what relief is she entitled and what directions are necessary in this respect?"
8. The statement of claim of the claimant and defence
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of the management has been mentioned at the outset. The
claimant claimed that she was in the continuous service of the
management since 23.10.2015 at the post of 'Maid/Aaya'; her last
drawn salary was Rs.10482/ per month and her service was
terminated illegally by the management on 20.07.20. On the
other hand, the management claimed that the work performance
of the claimant was very poor and many oral warnings were
given by the management to her; the management did not
terminate the services of the claimant; the management called the
claimant to join the services but she refused.
In order to prove her case, the claimant examined
herself as WW1 and placed/proved on record the above
mentioned documents. The claimant was crossexamined by the
management and during crossexamination, she deposed as
under:
"....I have filed the document to show that I joined the
management. I have not asked for my legal benefits in
writing. It is wrong to suggest that I was not employed by the
management and there was no employer employee
relationship. It is wrong to suggest that my service was not
illegally terminated by the management and I am not entitled
for any relief. It is wrong to suggest that management had not
received any demand notice and no notice was issued by me.
It is wrong to suggest that I am deposing falsely and my
claim is false. It is wrong to suggest that I was not paid salary
by the management and my salary was paid by Shakuntlam
Educational Society. The management running its school
even today".
9. Management examined MW1 who deposed by way
of affidavit Ex.MW1/A and relied upon the documents. The
MW1 was crossexamined and deposed that:
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".......I do not know if the management had received the
demand notice issued by the claimant dated 27.07.2020 or it
was not replied by the management. The management
appeared before the Conciliation Proceeding at Jhilmil. It is
wrong to suggest that the management has not taken the
defence of absentism before the conciliation proceedings. The
attendance register is not filed on record to show that the
claimants were absent from the duty. No show cause notice or
charge sheet was issued nor any inquiry was conducted
against the claimants".
The employment of the claimant with management
is not denied. The claimant has reiterated her averments in her
evidence and during her crossexamination. The MW1 in his
crossexamination admitted that no show cause notice or charge
sheet was issued nor any inquiry was conducted against the
claimant. The MW1 also admitted in his crossexamination that
no attendance register is filed on record to show that the
claimants were absent from the duty. There is no document filed
on record by the management to prove that the performance of
the claimant was very poor during her tenure. No notice or memo
was issued to the claimant in this regard by the management.
There is no document on record filed by the management to show
that the claimant was ever asked to join the duties when she
remained absent. The testimony of the claimant as well as the
management's witness corroborates the contention of the
claimant and proves her case.
10. It is reiterated that the claimant examined herself as
WW1 and deposed regarding the claim. The witness has also
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proved the relevant documents as above said. The documents
relied by the claimant alongwith testimony are not disputed and
her testimony in one way or the other remained unimpeached.
There is nothing in the testimony of WW1 during her cross
examination to controvert the claim. The management admitted
the employment of claimant. The claimant categorically proved
that he worked with the management and completed 240 days in
the preceding year of his termination. As noted, no inquiry has
been made by the management in the matter as well.
11. It is settled that where an employer has failed to
make an enquiry before dismissal or discharge of a workman, it
is open for him to justify the action before the labour court by
leading evidence before it. It is relevant to refer the observations
of Hon'ble Supreme Court in Civil Appeal No.142/2021 titled
State of Uttarakahand and Ors. vs. Smt. Sureshwati decided on
20.01.2021. As held in the relevant para no.14
14. This Court has in a catena of decisions held that where an
employer has failed to make an enquiry before dismissal or
discharge of a workman, it is open for him to justify the action
before the Labour Court by leading evidence before it. The entire
matter would be open before the tribunal, which would have the
jurisdiction to satisfy itself on the evidence adduced by the
parties whether the dismissal or discharge was justified. A four
Judge Bench of this Court in Workmen of the Motipur Sugar
Factory Private Ltd. v. Motipur Sugar Factory (AIR 1965 SC
1803) held that:
" 11. It is now well settled by a number of decisions of this Court
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.
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The entire matter would be open before the tribunal which will
have jurisdiction not only to go into the limited questions open to
a tribunal where domestic enquiry has been properly held (see
Indian Iron & Steel Co. v. Workmen (AIR 1958 SC 130) but also
to satisfy itself on the facts adduced before it by the employer
whether the dismissal or discharge was justified. We may in this
connection refer to Sana Musa Sugar Works (P) Limited v.
Shobrati Khan (AIR 1959 SC 923), Phulbari Tea Estate v.
Workmen (AIR 1959 SC 1111) and Punjab National Bank
Limited v. Workmen (AIR 1960 SC 160). These three cases were
further considered by this Court in Bharat Sugar Mills Limited
v. Jai Singh (1962) 3 SCR, 684 and reference was also made to
the decision of the Labour Appellate Tribunal in Ram Swarath
Sinha v. Belsund Sugar Co. (1954) LAC 697 . It was pointed out
that "the important effect of omission to hold an enquiry was
merely this: that the tribunal would not have to consider only
whether there was a prima facie case but would decide for itself
on the evidence adduced whether the charges have really been
made out". It is true that three of these cases, except Phulbari Tea
Estate case, were on applications under Section 23 of the
Industrial Disputes Act, 1947. But in principle we see no
difference whether the matter comes before the tribunal for
approval under Section 33 or on a reference under Section 10 of
the Industrial Disputes Act, 1947. In either case if the enquiry is
defective or if no enquiry has been held as required by Standing
Orders, the entire case would be open before the tribunal and the
employer would have to justify on facts as well that its order of
dismissal or discharge was proper. Phulbari Tea Estate
case was on a reference under Section 10, and the same principle
was applied there also, the only difference being that in that case
there was an inquiry though it was defective. A defective
enquiry in our opinion stands on the same footing as no enquiry
and in either case the tribunal would have jurisdiction to go into
the facts and the employer would have to satisfy the tribunal that
on facts the order of dismissal or discharge was proper."
Subsequently in Delhi Cloth and General Mills Co. v.
Ludh Budh Singh (1972) 1 SCC 595 this Court held that :
"(1) If no domestic enquiry had been held by the management, or
if the management makes it clear that it does not rely upon any
domestic enquiry that may have been held by it, it is entitled to
straightway adduce evidence before the Tribunal justifying its
action. The Tribunal is bound to consider that evidence so
adduced before it, on merits, and give a decision thereon. In such
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
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it.
....
(3) When the management relies on the enquiry conducted by it, and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management, are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.
Reliance is also placed on the judgment of this Court in Workmen of Firestone Tyre & Rubber Co. of India (P) Ltd. v. The Management of Firestone Tyre & Rubber Co. of India (P) Ltd and Others. (1973) 1 SCC 813 wherein the broad principle regarding holding of the enquiry were spelt out as:
"32. From those decisions, the following principles broadly emerge:
"(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality. (3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide. (4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to LIR No.556/2022 Smt. Mamta v. M/s. Mother's Pride Page No.13/22 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 punishment is so harsh as to suggest victimisation. (10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Management of Panitole Tea Estate v.
Workmens, (1971) 1 SCC 742 within the judicial decision of a Labour Court or Tribunal.
..........
40. Therefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under Section 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 LIR No.556/2022 Smt. Mamta v. M/s. Mother's Pride Page No.14/22 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."
12. It is reiterated that in this case no steps were taken by the management in respect of charge sheet and inquiry at all. In view of the aforesaid discussions, the management herein has not been able to discharge its onus in support of contentions. It is duly proved from the materials on record and the testimony of the witnesses that the services of the claimant was terminated illegally/unjustifiably by the management. Issue No.2 is accordingly decided in favour of the claimant and against the management.
LIR No.556/2022Smt. Mamta v. M/s. Mother's Pride Page No.15/22 Issue No.3:
Relief
13. The claimant herein has sought the relief of reinstatement in the service with full back wages along with the continuity of service and all the consequential benefits. The term "reinstatement" has not been elucidated 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'.
14. In Hindustan Tin Works Pvt. Ltd. Vs. The Employees of Hindustan Tin Works Pvt. Ltd., (1979 (2) SCC 80). The three judges Bench of the Hon'ble Supreme Court 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..."
15. In cases of wrongful termination of service, reinstatement with continuity and back wages is the normal rule LIR No.556/2022 Smt. Mamta v. M/s. Mother's Pride Page No.16/22 as held by the Hon'ble Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya and Ors., (2013) 10 SCC 324. The concept of reinstatement was also discussed therein:
"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 punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments." (emphasis supplied).
Further, the Hon'ble Supreme Court laid down the following principles to govern the payment of back wages:
(Deepali Gudnu Surwase case, SCC pp. 356-58, para 38) "38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2 The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
38.3 Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she LIR No.556/2022 Smt. Mamta v. M/s. Mother's Pride Page No.17/22 was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. 38.4 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 at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award or full back wages. 38.5 The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned 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 keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a 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.
38.6 In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation 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 LIR No.556/2022 Smt. Mamta v. M/s. Mother's Pride Page No.18/22 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 the luxury of spending money on a lawyer with certain amount of frame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees".
16. 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 :
"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 emphasised 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 LIR No.556/2022 Smt. Mamta v. M/s. Mother's Pride Page No.19/22 meager amount of Rs.20,000/- to the appellant."
17. Hon'ble High Court of Delhi in the matter titled as Thomas Reuters Private Limited vs. Ld. Presiding Officer, Labour Court & Ors. cited as MANU/DE/2665/2021, dated 30.09.2021 has held that in cases of illegal dismissal, the normal rule is reinstatement with full back wages. The Hon'ble High Court of Delhi in Paras No. 102, 106 and 119 thereof has held as under :
"102. In view of the conspectus of the aforesaid judgements, be it ingeminated that whenever an employee is dismissed, removed or terminated and the action of the employer is found to be illegal, the normal rule, albeit subject to exceptions, is that the employee should be restored to the position which he or she held before the umbilical cord broke between the employer and the employee. As noticed by the Hon'ble Supreme Court, the word 'reinstatement' means to reinstall/re- establish/restore to the earlier position or former state, condition or office.
"106. Recent trend of judgements shows that Courts have been holding that reinstatement may not be a natural or automatic consequence of setting-aside of dismissal order. However, reading of the two aforesaid judgements and other recent judgements, in my considered view, leads to an inevitable conclusion that for the purpose of grant of relief of reinstatement, Courts have always understood and appreciated the difference in the nature of employment of the employee as well as the length of service. In the present case, Respondent No.2 was a regular employee, with over nineteen years of continuous and unblemished service and clearly falls within the axiomatic jurisprudence and legal regime laid down by the Hon'ble Supreme Court in Hindustan Tin Works (supra) and not in the exceptions in the later judgements.
"119. On a reading of the above conspectus of judgements and the principles propounded in Deepali Gundu (supra), it is clear that the law on back wages is no longer res integra. In cases of wrongful termination, reinstatement with back wages is the normal rule, subject to course to a caveat that while deciding the issue of back wages, Courts may take into consideration a host of factors, such as length of service of the employee, LIR No.556/2022 Smt. Mamta v. M/s. Mother's Pride Page No.20/22 financial condition of the employer, etc. The employee is required to plead that he or she was no gainfully employed or was employed on lesser wages. As observed in Deepali Gundu (supra), in cases where the Competent Court or Tribunal finds that employer has acted in gross violation of statutory provisions and/or Principles of Natural Justice, etc. then it shall be fully justified in directing payment of full back wages and in such cases, Superior Courts should not exercise powers under Article 226 or Article 136 of the Constitution of India and interfere with the Award, only because there is possibility of forming a different opinion. Hon'ble Supreme Court has also struck a note of caution that Courts must always keep in view that in cases of wrongful termination, wrongdoer is the employer and sufferer is the employee/workman and thee is thus no justification to give a premium to the employer for their wrongdoing by relieving them of the burden to pay back wages."
18. In the present case, the claimant had worked with the management for more than 3 years before her illegal termination on 20.07.2020, 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.
19. In the present case, the management has not led any evidence to show that the claimant herein is gainfully employed elsewhere by summoning of relevant witnesses or proving the documents as per law. The claimant is, therefore, entitled for full back wages as well.
20. The reference is answered accordingly in favour of LIR No.556/2022 Smt. Mamta v. M/s. Mother's Pride Page No.21/22 the claimant and against the management and the claimant namely Smt. Mamta is entitled for reinstatement in services on the post on which she was working on the date of termination with full back wages with effect from 20.07.2020 i.e. the date of termination of the claimant up-to-the date of the award with other consequential benefits.
21. Management is directed to pay the amount accrued in favour of claimant within three months from the date of publication of award. If the management fails to pay the amount within the time stipulated, the accrued amount shall carry interest @ 9% per annum from the date of accrual and till the final payment is made.
22. Award is passed and reference is answered accordingly.
23. Award be uploaded on the website of RADC. A copy of the award be sent to the concerned Dy. Labour Commission for publication as per rules. File be consigned to the Record Room.
Announced in the open (Gorakh Nath Pandey),
Court on 06.05.2023 Addl. District & Sessions Judge,
Presiding Officer Labour Court IV,
Rouse Avenue District Courts.
LIR No.556/2022
Smt. Mamta v. M/s. Mother's Pride
Page No.22/22