Delhi District Court
Shri Sarabjeet Singh vs M/S Novartis India Ltd on 24 February, 2015
IN THE COURT OF SHRI NARINDER KUMAR
ADDITIONAL DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER : LABOUR COURT-XIX
KARKARDOOMA COURTS : DELHI.
LIR No. 547/2011
Unique Case ID No. 02402C0 013502010
Shri Sarabjeet Singh
S/o Shri Jialal Singh
R/o 122, A-3, Gautam Nagar
Near Post Office
New Delhi - 110049 ...........Workman
Versus
M/s Novartis India Ltd.
201, Palika Bhawan
Sector-13, R.K. Puram
New Delhi ..........Management
Date of institution of the case : 11.01.2010
Date of passing the award : 24.02.2015
Ref. No. F.24(169/09)/SWD/Lab./6872-6875 dated 18.12.2009
AWARD
Vide order dated 18.12.2009, Govt. of NCT of Delhi referred
following industrial dispute to this court while specifying the terms
of reference as under:-
"Whether services of Sh. Sarabjeet Singh S/o
Sh. Jialal Singh have been illegally and/or
unjustifiably terminated by the management,
and if yes, to what relief is he entitled?"
2. The workman presented statement of claim on 11.01.2010
with prayer that management be directed to reinstate his services
LIR No. 547/2011 1 of 34
with consequential benefits and shall also pay cost of litigation.
3. The management has filed WS opposing the prayer made by
the claimant on the ground that the decision taken by it
(management) to terminate the services of the workman was in
consonance with the terms and conditions of the employment and
because the workman failed to comply with the transfer orders with
impunity.
4. The workman has filed rejoinder reiterating his version put
forth in the claim and controverting the version put forth by the
management.
Case of the workman:-
5. In brief, the case of the workman, as put forth in the statement
of claim, is that he was appointed as a Medical Representative by
Sandos India Ltd., ultimately known as Novartis India Ltd. i.e. The
management, on 26.08.1985 and in this regard letter of
appointment dated 11.09.1985 was issued. He was confirmed on
04.06.1986 and as such he became permanent employee of the
management.
Further it is the case of workman that on 02.01.1990, he was
transferred from Chandigarh to Delhi after mutual discussion and
consent as per prevailing practice in the company during those
LIR No. 547/2011 2 of 34
days. However, the settlement between the workman and the
management came to an end on 30.06.1992 after having remained
in force since 08.08.1990. Therefore, negotiations for fresh terms of
settlement were being worked out between the management and
the employees. Demand no. 20 was one of the demands raised by
the workmen, which required to be settled. This demand was for
mutual transfers with the consent of concerned Sales and Medical
Representative and in no other way. The management was not
going to accede to this demand. According to the workman, he
being member of Association of Chemical Workers supported the
cause, like any other members, but the management started
pressurizing him by resorting to unfair labour practice on the
employees.
Further, it is case of workman that a dispute arose between
the Union and the management and thereupon appropriate
government i.e. Govt. of Maharashtra vide order dated 25.09.1995
referred the dispute to Industrial Tribunal, Mumbai and it came to
be registered as Industrial Tribunal no. 55/1995.
6. In Para 8 of statement of claim, the workman has referred to
tactics stated to have been applied by the management to put
pressure upon him. According to the workman, management also
LIR No. 547/2011 3 of 34
freezed his work vide order dt. 05.09.1995 with immediate effect.
He wrote letter dated 13.09.1995 that he was not given opportunity
or reason as to why his work was closed.
The relationship between the parties ran into rough weather,
when vide order dated 26.09.1995 the management transferred him
from New Delhi to Ratlam (Madhya Pradesh). He made
representation to the management on 07.10.1995 with prayer for
cancellation or withdrawal of transfer orders till decision of the
above said industrial dispute No. 55/1995 pending adjudication
before Industrial Tribunal, Mumbai, but the management declined
his request vide letter dated 13.10.1995. Ultimately, the
management terminated his services vide letter dated 01.11.1995.
Case of the workman is that the management terminated his
services without providing him opportunity to put forth his
explanation and without conducting any departmental or domestic
inquiry.
7. Workman has alleged that he filed complaint no. 1 of 1995
before the Industrial Tribunal u/s 33A of the ID Act. On dismissal of
his complaint, he filed writ petition before the Hon'ble High Court of
Bombay, whereupon the matter was sent back to the Industrial
Tribunal with directions to reassess complaint no. 55/1995. On
LIR No. 547/2011 4 of 34
30.06.2005, an award was passed in his favour to the effect that
services of the employee could not be terminated during pendency
of the Industrial dispute relating to the conditions of service of the
workman.
Management challenged the award dated 30.06.2005 by filing
writ petition before the Hon'ble High Court. The award was set
aside by the Hon'ble High Court vide order dated 21.12.2006.
Thereupon, workman filed Appeal (L) No. 221/2007 before the
Division Bench of Hon'ble High Court of Mumbai, but it was
dismissed. He then filed petition for Special Leave to Appeal before
Hon'ble Apex Court. On 18.09.2009, Hon'ble Apex Court observed
in the petition as under:-
'we once again re-iterate that as far as the applicability of
section 33(2)(b) of the Act is concerned the dispute stands
concluded and the appellant will not raise the dispute under Section
33(2)(b). We clarify that the Industrial Tribunal will decide the
dispute on merits uninfluenced by the observations of the High
Court on the points other than the Section 33(2)(b) of the Industrial
Disputes Act.'
That is how, present statement of claim, on reference by the
government is before this court.
LIR No. 547/2011 5 of 34
The grievance of the workman is that he being a permanent
employee was entitled to all benefits and that non-adherence or
non compliance of statutory principles by the management is
tantamount to violation of his legitimate rights and loss of
opportunity of a fair procedure; and further that his termination is in
violation of laws and rights, the reason being that management did
not issue him any showcause notice or chargesheet or conduct any
departmental enquiry.
Version of management:-
8. The management, in its WS, has admitted factum of
employment of workman, as put forth in the statement of claim, but
nowhere specifically denied that on 04.06.1986 he got the status of
a permanent employee with the management. Management
however denied that only upon mutual discussions the workman
was transferred from Chandigarh to Delhi vide letter dated
02.01.1990.
On the point of transfer of its employees, case of the
management is that 'as per management company's policy,
transfers are effected in the ordinary course of business and the
same forms part of express condition of the employment of all the
Medical Sales Representatives who are not to be consulted prior to
LIR No. 547/2011 6 of 34
effecting transfers since the same are effected keeping in mind the
exigencies of the work of the management.'
9. Management has admitted that settlement between the
management and Union of its employees i.e. Association of
Chemical Workers was there from 08.08.1990 to 30.06.1992.
However, the management denied that a Charter of demand was
put forth before the management company or that same was not
accepted.
As regards dispute raised by the workman u/s 33(2)(b) of the
Act, case of the management is that Hon'ble Apex Court has clearly
excluded the applicability of Section 33(2)(b) of the Act from the
ambit of dispute to be adjudicated by this court, and as such further
pleaded that averments made by the workman in this regard are
totally irrelevant.
As regards demand no. 20 made in the Charter, case of the
management is that reference no. 55/1995 having been dismissed
vide order dated 06.07.2005, said demand is of no relevance.
Management has denied to have put any kind of pressure on the
workman as alleged by him.
10. As regards transfer of the workman from New Delhi to
Ratlam, the management has pleaded that his transfer and transfer
LIR No. 547/2011 7 of 34
of other medical sales representatives from one territory to another
was a regular feature on account of exigencies of business.
Case of the management is that the transfer order of the
workman was passed on 26.09.1995 whereas the management
received intimation regarding making of reference by the
government to the Industrial Tribunal (ID no. 55/1995), on
04.10.1995.
According to the management, the workman refused to
accept the transfer and entered into correspondence with the
company and since he failed to fulfill his obligation as a lawful
employee, his services were terminated. On the aforesaid pleas,
management has denied that the workman was entitled to all the
benefits which were extended to other similarly situated employees.
Management has defended termination of services of the workman,
the same being in compliance with statutory principles and there
being no violation of legitimate rights.
11. As regards, the version of non conducting of domestic
enquiry, Management has pleaded that domestic enquiry was not a
sine qua non for termination of workman as he failed to comply with
the transfer orders.
As regards claim regarding back wages, the management has
LIR No. 547/2011 8 of 34
pleaded that since he has substantial income, he is not entitled to
any consequential benefits.
Rejoinder:
12. As notice above, the workman filed rejoinder reiterating his
pleas and controverting the pleas put forth by the management.
Points for determination:
13. From the pleadings of the parties, following issues were
framed on 30.07.2010.
1. Whether the claim as raised by the workman is not
maintainable in terms of preliminary objection no. 1 and 2
of the written statement? OPM
2. As per terms of reference. OPW
3. Relief
Evidence
14. In order to prove his case, workman has stepped into the
witness box as WW1 and also examined WW2 Shri BK Sharma .
On the other hand, management has examined RW1 Sh.
Ravinder Kumar Sagar.
15. I have heard the workman and learned ARs(counsel) for
the parties. My findings on the issues are as under :
Discussion:
Issue no. 1 (Whether the claim as raised by the
LIR No. 547/2011 9 of 34
workman is not maintainable in terms of preliminary objection
no. 1 and 2 of the written statement)?
16. The preliminary objections raised by the management in the
WS are that in terms of order dated 18.09.2009 passed by Hon'ble
Apex Court, the dispute earlier raised by the workman on the
ground of provision of Section 33(2)(b) of the Act stands concluded
and as such he could not raise any plea regarding applicability of
Section 33(2)(b) for his termination.
Admittedly, as per order dated 18.09.2009 passed by
Hon'ble Supreme Court, dispute as far as applicability of Section
33(2)(b) of the Act, stands concluded, but it does not mean that to
narrate complete cause of action, the claimant could not even plead
the relevant facts including the history. Where there is no reference
on point of transfer and Court is not to adjudicate the same,
objections are for the sake of objections. In other words, when this
court is to decide the reference made by the Govt. on merits as
regards termination of services of the workman , there is no merit in
the preliminary objections that claim raised by the workman is not
maintainable at all. This issue is therefore, decided against the
management.
Issue No. 2 : As per terms of reference
LIR No. 547/2011 10 of 34
(Whether services of Sh. Sarabjeet Singh S/o Sh. Jialal Singh
have been illegally and/or unjustifiably terminated by the
management, and if yes, to what relief is he entitled?"
17. The argument raised on behalf of the workman is that
since the management failed to issue show cause notice or charge
sheet or conduct any inquiry, before terminating his services, this
act on part of the management is arbitrary, illegal, unjust and unfair,
reason being that it has not complied with statutory principles of
natural justice by not affording an opportunity to the workman of
being heard, which is his legitimate right.
Another submission is that the workman did not join new
place of posting as matter regarding conditions of service was
pending before the Industrial Tribunal, Bombay but the
management terminated his services in 18 days of the transfer
order, which shown malafides on its part, while dealing with
workman who had served it since 1985. As a consequence, it has
been submitted that the workman being a permanent employee, is
entitled to all benefits admissible to all similarly placed employees
and he deserves to be reinstated in service with continuity of
service and all consequential benefits.
In support of his submissions, learned AR (for workman) has
relied on the following decisions :
LIR No. 547/2011 11 of 34
Novartis India Limited vs State of West Bengal & Others
(2009) 3 SCC 124,
Amar Chakravarty and other's vs Maruti Suzuki India Ltd.,
(2010) 14 SCC 471,
D.K Yadav vs J.M.A Industries Ltd., (1993) 3 SCC 259 and
Uptron India ltd. vs Shammi Bhan & anr. (1998) 6 SCC
538.
18. On the other hand, learned AR (for management) has
referred to Clause (7) of the letter of appointment, wherein it was
agreed that the workman was liable to be transferred (either
temporarily or permanently) to any
department/division/establishment/company in India to submit that
the transfer orders of the workman were passed in the due course
and the workman could file representation or challenge the order of
transfer before the appropriate Court or comply with the transfer
orders and when his representative was turned down by the
management on 13.9.1995 and order attained finality, but he did not
comply with the transfer order, so the management had no option ,
but to terminate his services and that too in accordance with the
terms of contract. So, it has been urged that the management
having terminated services of the workman as per terms of the
LIR No. 547/2011 12 of 34
contract, the order of termination cannot be said to be illegal or
arbitrate in any manner. In this regard, reference has been made to
the decision in Gujarat Electricity Board vs Atmaram Sungomal
Poshani (1989) 2 SCC 602.
19. On the point of non-conducting of any inquiry, the contention
raised by learned AR (for Management) is that same would not
vitiate termination order, the reason being that credible evidence
has been attained by the management before this Court to justify
the termination in this regard. On this point, reference has been
made to the decision in Workman Vs. Firestone Tyre & Rubber
Co. (1973) 1 SCC 813 and Amar Chakravarty vs Maruti Suzuki (I)
Ltd. 2010 (14) SCC 471.
Ultimately, it has been submitted in the written
arguments that in the present case when there was loss of
confidence upon the employee, the employee having not joined the
place of posting under transfer orders and this having amount to
misconduct, dismissal from service is the appropriate order passed
by the management.
20. Admittedly, workman was employed with the
management as Medical Sales Representative in April 1985. As
noticed above, management has not specifically denied, in reply,
LIR No. 547/2011 13 of 34
para No. 2 of the statement of claim that on 04.6.1986 workman got
status of a permanent employee of the management.
There is no dispute between the parties that earlier workman
was transferred from Chandigarh to Delhi on 02.1.1990 but the
management has disputed the case of the claimant that he was so
transferred earlier after mutual discussion and consent.
Management has admitted that there was long term settlement
between the management and Union of employees, i.e. Association
of Chemical Workers and same was gathered by settlement dt.
08.8.1990 which remained enforced up to 30.6.1992.
As per case of the workman demand No. 20 was that no
transfer should be made except by way of mutual consent of
concerned sales and medical representatives. Management has
also admitted case of the workman that demand No. 20, one of the
demands of Charter, raised by the Union before the management,
but its case is that this demand has got no relevance because of
dismissal of ID reference by the Hon'ble High Court of Mumbai.
21. Admittedly, workman was transferred from Delhi to
Ratlam (Madhya Pradesh) vide order dt. 25.9.1995. According to
the workman , he received this transfer order on 05.10.1995.
Management has no where specifically disputed receipt of transfer
LIR No. 547/2011 14 of 34
orders by the workman on 05.10.1995. Admittedly, workman made
representation dt. 07.10.1995 to the management against his
transfer with prayer for his cancellation or withdrawal of his transfer
order. During pendency of the industrial dispute before Industrial
Tribunal, Mumbai the representation submitted by the workman
was rejected. It is also admitted that services of the workman were
terminated on 01.11.1995 and that too without conducting any
departmental inquiry.
22. Transfer order is dt. 26.9.1995 Ex.WW1/14. The
workman was transferred w.e.f. 09.10.1995. According to the
workman, he received transfer order on 05.10.1995. The
management has not denied this fact. So as to seek relief or
cancellation or withdrawal of transfer order, the workman submitted
representation dt. 07.10.1995 to the management. The
management, while admitting this fact, has further pleaded that the
revision was rejected. According to the workman it was rejected on
13.10.1995. It is also not in dispute.
It is true that the management has led evidence on the point
of misconduct of the workman in his having not joined at the
transferred place in view of decisions in Workman vs Firestone
Tyre and Rubber Co.'s case (supra) and Amar Chakravarty's
LIR No. 547/2011 15 of 34
case (supra).
Record reveals that the management did not comply with the
statutory requirements before terminating the services of the
workman.
In his letter of request for withdrawal or cancellation of
transfer order, the workman submitted to the management that
industrial dispute had already been referred by the Govt. of
Maharashtra vide order dt. 25.9.1995 regarding demands in respect
of Medical Sales Representatives and those included the demand
regarding transfer by consent. He further submitted that the
demands being subject matter before the Industrial Tribunal, the
management should recall the order of transfer till the final award
was passed by the Industrial Tribunal.
A perusal of reference order passed by the Govt. of
Maharashtra while referring an industrial dispute to the Industrial
Tribunal would reveal that it was forwarded so on 25.9.1995.
Management has pleaded that it came to know of the reference
order only on 04.10.1995 and the transfer order was passed on
26.9.1995 cannot be said to be malafide.
23. Workman has pleaded that if the management received
this intimation on 04.10.1995, in view of pendency of the dispute
LIR No. 547/2011 16 of 34
before the Industrial Tribunal, the management should not have
gone ahead for implementation of the transfer order which
ultimately resulted into termination of service.
Record reveals that the workman filed complaint under
Section 33-A of the ID Act before the Industrial Tribunal, Bombay on
25.11.1995 challenging the order of transfer as well as order of
termination of his service.
24. From the material available on record and the sequence
of events, it is obvious that the workman was under bonafide
impression that the management would consider his request for
withdrawal or cancellation of transfer order since the Industrial
Tribunal, Bombay was already seized of the dispute between the
Union and the management. Otherwise, he would not have thought
for filing of complaint No. 1 of 1995 before the Industrial Tribunal. In
Gujarat Electricity Board's case (supra) it was held that in the
absence of any stay of the transfer order a public servant has no
justification to avoid or evade the transfer order merely on the
ground of having made a representation, or on the ground of his
difficulty in moving from one place to the other. But in the given
facts and circumstances of this case, management cannot take
advantage of the decision in Gujarat Electricity Board's case, as
LIR No. 547/2011 17 of 34
herein, the workman under bonafide belief did not comply with the
transfer orders.
In Y.P. Sarabhai vs Union Bank of India, IV (2006) SLT
673=2006 (5) SCC 377 it was held that the conduct of the appellant
did not entitle him to any relief in these proceedings as the
appellant remained absent from his duty for a very long time i.e.
From 03.06.1997 to 23.11.1997 without any reasonable cause and
justification in spite of the respondents requests to join the duty and
in spite of the respondent's granting him further time to join the duty. The conduct of the appellant in remaining absent from such a long time showed that he was bent upon to evade the transfer order in any possible manner. But herein, the workman under bonafide belief did not comply with the transfer orders and as such, this decision also does not come to the aid of the management.
25. It is true that the Hon'ble High Court of Bombay set aside the award passed in favour of the workman while observing that the Association of Chemical Workers had not even a single member from the category of Medical Sales Representative and no such representative was concerned with the dispute.
It is also true that the Hon'ble High Court of Bombay observed that the workman had resigned from the membership of Association LIR No. 547/2011 18 of 34 of Chemical Workers Union five months prior to the aforesaid reference. But there is nothing on record to suggest that the workman knew, even after having resigned as member of the aforesaid union, that there no other medical sales representative was member of the said union.
Let's see if, in the given situation, the management was justified in terminating the services of the workman.
26. In Novartis India Ltd.'s case (Supra) the respondents therein were posted at Kolkata by the same management - respondent herein. For a long time, they were posted there. They were transferred to far away places. They did not initiate proceedings questioning the validity of orders of transfer. Since the question as regards the validity of orders of transfer in similar matters was pending decision in a court of law, they were advised to wait till the decision in the notice of motion in the suit filed before the City Civil Court, Mumbai was rendered. Even after the direction went against the employees, the respondents did not join their services at their transferred places. In the given circumstances, Hon'ble Apex Court observed that these respondents might have committed misconduct, their services, however, were terminated without holding any domestic enquiry and only one month's wages LIR No. 547/2011 19 of 34 were paid. No amount by way of salary or otherwise nor any subsistence allowance was paid to the employees.
27. In Para 18, Hon'ble Apex Court dealt with the point of misconduct when an employee does not join at his transferred place and observed in the manner as :
"a disciplinary proceeding was required to be initiated if an employee commits a misconduct by not joining at his transferred place". It was held that the order of discharge is not a substitute for an order of punishment and if an employee is to be dismissed from services on the ground of misconduct, he was entitled to an opportunity of hearing. Had such an opportunity of hearing been given to them, they could have shown that there were compelling reasons for their not joining at the transferred places. Even a minor punishment could have been granted.
Herein admittedly, the workman got employed with the management in April 1985 and undisputedly got the status of a permanent employee in 1986. In the given situation, even if the employee did not comply with the transfer orders and he might not have indulged in good conduct, a disciplinary enquiry was still required to be initiated as per observations of the Hon'ble Apex Court in Novartis's case (supra) the reason being that order of discharge is not a substitute for an order of punishment. The workman, whose services have been terminated by the management on the ground that he did not join at his transferred LIR No. 547/2011 20 of 34 place, was entitled to an opportunity of hearing as further observed therein. Only during inquiry and on having been provided an opportunity for being heard, he could show that there were compelling reasons for having not joined at the transferred place.
As regards decision in Novartis India Limited Vs. State of West Bengal (supra), the arguments raised on behalf of the management is that same is not applicable to the facts of the present case as therein the question involved was only on the point of back wages.
It is significant to note that at the same time, learned AR (management) has himself relied on observations in para No. 34 of the same judgment, that transfer is an incidence of service and unless an order of transfer is passed contrary to the provisions of statutory rules or settlement, the same should not be interfered.
28. In Novartis's case (supra), the matter in dispute herein was also in dispute between same management and other employees on the point of back wages, as rightly submitted by learned AR (management), but it does not mean that other valuable observations made by the Hon'ble Apex Court therein on significant aspects are of no relevance for the purpose of this dispute.
Reference may also be made to decision in Bikash Bhushan LIR No. 547/2011 21 of 34 Ghosh vs Novartis India Ltd. (2007) 5 SCC 591 wherein it was observed that the legality of orders of transfer has a direct nexus with the order of termination.
29. It may be mentioned herein that in the written arguments, learned AR (Management) has advanced an additional argument that the workman does not fall within the definition of "workman" of the Industrial Disputes Act.
Learned AR (workman) has rightly submitted that no such objection was raised by the management in the written statement. Record reveals that the management did not seek any manner of the written statement so as to plead this additional plea. Learned AR (workman) has also referred to decision in HR Adyanthaya and others vs. Sandoz (India) Ltd. and others (1994) SCC 737 to submit that the claimant is a workman . Therein it was observed that the medical representatives drawing salary "more than Rs. 750/- per mensem (excluding commission)" or "Rs.9000/- per annum (including commission)" prior to amendment of Sales Promotion Employees (Conditions of Service) Act, 1976 by Act 48 of 1986 w.e.f. 06.5.1987 were not covered by the definition of 'sales promotion employees' under Section 2(d) of that Act, as it stood originally and could not be deemed to be workmen by virtue of LIR No. 547/2011 22 of 34 Section 6(2) of that Act.
Herein as per the appointment letter Ex.CW1/2 dt. 26.8.1985, the claimant was entitled to a basic salary of Rs.130/- per month, dearness allowance, conveyance allowance and living allowance. Therefore, even as per decision in HR Adyanthaya's case (supra), it cannot be said that claimant is not a workman. In course of arguments, learned AR (management) was candid enough to say that as per decision in HR Adyanthaya's case (supra) as per provisions of the Sales Promotion Employees (Conditions of Service) Act, 1976 by Act 48 of 1986 w.e.f. 06.5.1987, Medical Representatives were covered by the definition of 'Sales promotion'.
Even otherwise during the pendency of earlier litigation between the claimant and the management under Section 33-A of the ID Act, 1947, no objection appears to have been raised by the management that claimant was not a workman .
30. Admittedly, decision in Writ Petition no. 2787 of 2005 filed by the management against the claimant herein has attained finality as per decision by the Hon'ble Apex Court in Civil Appeal No. 6473 of 2009 decided on 18.9.2009 and this Court is required to decide the reference on merits.
LIR No. 547/2011 23 of 34 Here, the transfer order is dated 26.09.1995 whereupon he made representation dated 07.10.1995 but it was rejected on 13.10.1995 and ultimately the management even terminated the services of workman on 01.11.1995. In this way, the management terminated his services with post haste.
File reveals that even prior to the passing of transfer order, the management issued order Ex. CW1/12 dt.05.9.1995 freezing the work of the workman till further instructions. Management has not put forth any justification for freezing the work of the workman. The workman immediately took up the matter with the management vide Ex. CW1/13 that there was no reason given in the letter Ex. CW1/12 for closing his work. He clearly alleged that it was victimization. Having regard to the fact of closing of the work of the workman in September 1995, prior to his transfer vide order dated 26.09.1995, and termination of his services within 18 days, this conduct on part of management speaks volume against it.
31. In Uptron India Ltd.'s case (Supra), Clause 17(g) of the Contract of employment provided that services were liable to automatic termination. Hon'ble Apex Court observed that this provision conferred a discretion upon the management to terminate or not to terminate the services of an employee who overstays the LIR No. 547/2011 24 of 34 leave. The discretion in this regard has to be based on an objective consideration of all the circumstances and material which may be available on record. In Para 20 of the judgment, Hon'ble Apex Court further observed as under :
"There are questions which would naturally arise while deciding to terminate the services of the employee for overstaying the leave, such as, what are the circumstances which compelled the employee to proceed on leave; why he overstayed the leave; was there any just and reasonable cause for overstaying the leave; whether he gave any further application for extension of leave; whether any medical certificate was sent if he had, in the meantime, fallen ill? Who would answer these questions and who would furnish the material to enable the management to decide whether to terminate or not to terminate the services are again questions which have an answer inherent in the provision itself, namely, that the employee against whom action on the basis of this provision is proposed to be taken must be given an opportunity of hearing. The principles of natural justice, which have to be read into the offending clause, must be complied with and the employee must be informed of the grounds for which action was proposed to be taken against him for overstaying the leave.
32. Hon'ble Apex Court further observed that services of a permanent employee cannot be terminated abruptly or arbitrarily, either by giving him a month's or three month's notice or pay in lieu thereof or even without notice, notwithstanding that there may be a stipulation to that effect either in the contract of service or in the Certified Standing Orders.
LIR No. 547/2011 25 of 34 Although herein, Clause C of letter of confirmation Ex. CW1/4 dated 04.06.1986, provides that services of the workman can be terminated by giving one month's notice to other party or one month's salary in lieu of such notice and the management reserved the right to terminate service without any notice or compensation whatsoever if found to be guilty of committing an act of misconduct yet having regard to the decision in Uptron India Ltd.'s case (supra), this court finds that the extent of the misconduct attributed to the workman did not call for termination of his services (when he was a permanent employee and had rendered a service of about 10 years).
33. Section 11 A of the ID Act provides that where the court is satisfied that the order of discharge or dismissal was not justified, it may, by its Award, set aside the order of discharge or dismissal and direct reinstatement of workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require.
It is well settled that punishment imposed can be interfered with on being satisfied that it was considerably disproportionate to the degree of guilt. It is also true that once LIR No. 547/2011 26 of 34 misconduct is established, the maximum punishment stipulated can be awarded, but still the court has full discretion to award lesser punishment.
34. In the course of arguments, Ld. AR(M) has submitted that this is a case of loss of confidence of the management in the workman and in respect of his submissions referred to decision in L. Micheal and Anr. Vs M/s Johnson Pumps India Ltd. 1975 1 SCC
574. Herein, termination from services of workman by management is by way of punishment and as such the aforesaid decision is distinguishable on facts.
This Court feels that simply because a workman does not join the new place of posting and that too in bonafide belief, it cannot be said to be a loss of confidence of the management in the workman. Rather, as per material available on record and having regard to the malafides on the part of the management, rather this Court feels that this is a case of loss of confidence of the workman in the management.
At this stage, it is pertinent to highlight the conduct of management from the period it ordered for freezing of work for the workman onwards.
LIR No. 547/2011 27 of 34 Malafides of Management :
(a)The management freezed the work of the workman vide order dt. 05.9.1995 without any reasons.
(b)Management ignored to consider that it itself had got referred industrial dispute to Industrial Tribunal on the point of service conditions, including "transfer with mutual consent, and the previous settlement that remained in force between the management and its employees from 08.8.1990 to 30.6.1992.
(c) Management did not afford reasonable opportunity to the workman to join the new place of posting, by extending the period of joining after rejection of his representation . Rather, it appears from the plea put forth in the WS, the management disliked even filing of representation against transfer order.
(d) The management terminated the services of the workman within 18 days of the transfer orders. Bonafides of Workman :
(a) The workman, on freezing of the work immediately took up the matter with the management, so as to be apprised of reasons as to why his work had been withdrawn .
(b) The workman was under mistaken belief that demand No. 20 put forth on behalf of the employees of the management, was going to be adjudicated by the Industrial Tribunal and as such he filed representation to the management.
(c) Workman filed complaint No. 1 of 1995 before the Industrial Tribunal, Mumbai U/S 33-A of the ID Act and on its dismissal filed Writ Petition before the Hon'ble High Court of Bombay and ultimately challenged the order passed by the Hon'ble High Court before Hon'ble Apex Court.
LIR No. 547/2011 28 of 34
(d) Workman entered into correspondence with the respondent by way of humble request.
35. Having regard to all the facts and circumstances, the conduct of the workman , which cannot be termed to be a good conduct, his bonafide in non-compliance with the transfer orders and malafides on part of the management, this Court finds that the management did not terminate the services of workman in accordance with law, and rather his services have been terminated with malafides.
(Issue No.3)-Relief
36. As a result, this Court deems it a fit case where action taken by the management in illegally and mala fide terminating services of the workman deserves to be set aside and the workman deserves to be reinstated in service with continuity in service and all consequential benefits.
As regards back wages,
37. On the point of grant of back wages, reference has been made to the material available on record and decision in para No. 12 in L. Michel's case (supra).
From time to time, Hon'ble Apex Court has laid down guidelines to be taken into consideration for determination of LIR No. 547/2011 29 of 34 backwages. In Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Others CDJ 2013 SC 765, Hon'ble Apex Court has observed as under:-
"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. With the passing of an order which has the effect of severing the employer-employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. 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, LIR No. 547/2011 30 of 34 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".
38. This court finds that malafide conduct of the management in terminating services of permanent employee should also be one of the factors to be considered in such like matters, at the time of grant of relief of back wages.
It is true that conduct of the workman is to be taken into consideration, but herein this Court has found that although his conduct in non-joining of the office at the new place of posting cannot be termed to be a good conduct yet the conduct of the management in terminating the services of the workman, as noticed above, has also not been good.
It is well settled that on setting aside of order of LIR No. 547/2011 31 of 34 termination of services, order for payment of full back wages is the general rule.
39. As per decision in Taranjitsingh I. Bagga Vs. MSRT Corporation Amravati, 2008 (3) MhLJ 743, the moment a person is sacked he can find alternate means of his wherewithal. In this situation , it would be unjust to insist upon a technical requirement of pleading and proof of absence of gainful employment by an employee who is wrongfully dismissed".
40. In his cross examination, workman has stated that he is unemployed since 1995. On the contrary, management witness (MW1) has testified that the workman was gainfully employed. It was suggested to him by learned AR (for management) that he was in a business of breeding and selling of dogs at Chhaterpur. The witness denied this suggestion . He stated in his cross-examination that he has three sons, aged 21 years and twins of 19 years of age, who all got their education from English medium school and that they all of them were doing B. Pharma.
It is true workman has admitted in his cross-examination that his family members used to deposit money in his bank account from 2009 till 2012 which is reflected in the income tax returns filed by him, but he could not tell the break up of his total gross income LIR No. 547/2011 32 of 34 as reflected in his income tax returns filed in Court on 17.3.2012. He volunteered to have sold property- two bedroom with drawing- dining flat, at Sector-10, Mohali, Chandigarh to meet his expenses, but displayed ignorance about the sale proceeds.
At the same time, it may be mentioned that the management has not led any evidence on record to suggest that the workman was employed as a Medical Sales Representative with any concern, ever since termination of his services.
41. Having regard to all the facts and circumstances including the conduct of the workman, this court deems it a fit case not to allow back wages to the workman for the period from 01.11.1995, i.e. date of his termination from services, till the making of reference.
The reference has remained pending before this Court since 11.1.2010. Having regard to the malafides on the part of the management, this Court finds that the workman should be allowed back wages @ 25% for the period from 11.1.2010 onwards i.e. for the period of pendency of industrial dispute before this Court.
As a result, while setting aside order of termination of services of the workman, the workman is held entitled to relief of reinstatement of service with continuity of service and consequential benefits, with back wages 25% only for the period LIR No. 547/2011 33 of 34 from 11.1.2010, i.e. the date of receipt of reference of present industrial dispute, while withholding relief of back wages for the period from termination of services till 10.1.2010.
Reference is answered. Copy of Award be sent for publication and file be consigned to Record Room. ANNOUNCED IN OPEN COURT ON 24th Day of February 2015 (Narinder Kumar) Addl. District & Sessions Judge Presiding Officer Labour Court-XIX Karkardooma Courts, Delhi LIR No. 547/2011 34 of 34