Delhi District Court
Permanent Address Of The vs M/S Bharat Prakashan (Delhi) Ltd on 8 June, 2022
IN THE COURT OF SH. MUKESH KUMAR, PRESIDING
OFFICER LABOUR COURT, ROUSE AVENUE COURT
COMPLEX, NEW DELHI
INDUSTRIAL DISPUTE BETWEEN :
Industrial Dispute No. LIR7913/2016
INDUSTRIAL DISPUTE BETWEEN :
Ms. Anupama Srivastava
W/o Sh. Ashok Srivastava,
R/o C65, Chander Nagar,
Ghaziabad, UP
(The requisite details of the workman in compliance to judgment of
Hon'ble High Court of Delhi titled as "Director General of Works (CPWD)
Vs. Laljeet Yadav & Ors. W.P.(C) No. 2540/2021, DOD 16.07.21 are as
follows:
Permanent Address of the Workman
R/o C65, Chander Nagar, Ghaziabad, UP.
Present Address of the Workman:
R/o C65, Chander Nagar, Ghaziabad, UP.
Name and Mobile Number of A.R for Workman:
Sh. K. C. Dubey, A.R, Ch. No. G525,
Karkardooma Court, Delhi. 9810445502
Details of one of immediate family member of the Workman
Sh. Ashok Srivastava (Husband of workman),
AADHAR No. 319607691268
AADHAR Card Number of workman and Phone No.
AADHAR No. 577308662801, Ph. No. 9311467272
.....Workman
VERSUS
LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 1 of 41.
1 M/s Bharat Prakashan (Delhi) Ltd.
Sanskriti Bhawan, 2322, Laxmi
Narayan Marg, Paharganj,
New Delhi110055
Through its Managing Director
Sh. Parmanand Moharia
(Sh. Anurag Ranjan, A.R, 26A,
Poorvi Marg, N. D.57, 9818060838)
2. Sh. Jitender Mehta
General Manager,
M/s Bharat Prakashan (Delhi) Ltd.
Sanskriti Bhawan, 2322, Laxmi
Narayan Marg, Paharganj, New Delhi110055
(Deleted vide order dated 01.06.2016) .....Management
Date of Institution : 05.05.2016
Date of Arguments : 16.03.2022
Date of Award : 08.06.2022
AWARD
1.The Joint Labour Commissioner (Central District), Government of NCT of Delhi vide its order No. F.24(25)/Lab/CD/16/164, dated 25042016, referred an industrial dispute of present worker with the above mentioned management to the Labour Court with the following terms of reference : LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 2 of 41.
"Whether the services of workman Smt. Anupama Srivastva D/o Late Sh. Harvansh Kashyap, Aged about 43 years have been terminated illegally and/or unjustifiably by the management; and if yes, to what relief is he entitled and what directions are necessary in this respect ?"
2. VERSION OF THE WORKMAN AS PER THE STATEMENT OF CLAIM:
The case of the claimant as stated in the claim is that on 05.03.1992 she was appointed as StenoTypist in the management M/s Bharat Prakashan (Delhi) Ltd. On the basis of her unblemished record of service she was promoted to the post of Private Assistant (PA) and her last drawn salary was Rs. 27000/. She has been working with full devotion and dedication and there has not ever been any complaint against the claimant. It is stated by the claimant that she has been illegally been terminated from the services without any rhyme and reason. The claimant represented against the illegal termination dated 04012016 vide representation dt. 29012016.
The claimant sent a complaint dt. 19012016 through union ALC but all in vain. The claimant filed statement of claim before Conciliation Officer but the management did not respond positively. The claimant also submitted a representation to the management vide her letter dated 18032016. It is averred by the claimant that she falls within the definition of "Nonjournalist newspaper employee" as per section 2 (dd) of Working Journalists and Other LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 3 of 41.
Newspaper Employees (Condition of Service) and Miscellaneous Provisions Act, 1955. She was neither doing any managerial administrative and supervisory works. The claimant earned the promotion in 2011 to the post of Personal Assistant and was placed in the pay scale of Rs. 6970/ pm. It is averred by the claimant that she is fully covered and is entitled to the benefits of the recommendation of Majithia Wage Board and the directions of Hon'ble Supreme Court. It is stated by claimant that her salary and other allowances were not prepared and given by the management as per the above said reports. It is submitted that the management, instead of giving the benefits of the Majithia Wages Board and directions of Hon'ble Supreme Court, has been taking all illegal and unjustified action against its employee including the claimantherein to tender their resignation.
It is submitted that a notification was issued by the Central Government for the implementation of the report of the above said board but the management decided to pay only 30% of the basis pay as an interim measure in contemplation of the implementation of the said report. It is stated that management unjustifiably broke the basis pay into two parts i.e. basis pay and personal pay and same was done to reduce the basis pay at the low level so as the other benefits to be computed on the basis of the basis play should remain minimal. It is further stated that the management has not been paying the yearly increment in the basis pay nor was paying bonus to the claimant and other employees for last four years. It is further averred by the claimant that as per the Majithia Wages Board medical LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 4 of 41.
insurance of all the employees is mandatory but the management deliberately denied to implement the medical insurance benefits to the claimant and their employees, however, it has now been implemented only since FebruaryMarch, 2016.
It is alleged by the claimant that it is not at all the case that the management is going to be wound up. The senior regular employees are being replaced by fresh one being kept merely on contract basis on the unilaterally framed terms and conditions on its whims and fancies. It is stated that as many as 45 contract employees have been engaged by the management. It may be submitted that even a daily wager can not be retrenched or Terminated without following the rule provided under section 25 F and 25 M of the Industrial Dispute Act. It is stated that the case of the claimant is at much better padestral as the claimant was a regular employee and is having absolutely unblemished record of service, still she has been shown the door in violation of all established rules of retrenchment and has unceremoniously been ousted. It is stated that the management shifted its office from Sanskriti Bhawan, Deshbandhu Road, Jhandewalan to the office at 2322, Laxmi Narain Marg, Paharganj, New Delhi110055 just to break the resistance of the employees against the purported illegal activities carried out by the management.
It is submitted that the regular employees can not be substituted by the contractual employees while the videversa has legal sanctity. It is stated that getting resignation or terminating illegally for substituting them by the employees on contractual basis LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 5 of 41.
is nothing but a patently illegal action of the management. It is stated that the management is guilty of violating Section 9 of the Industrial Dispute Act. It is further stated that prior to change in the service condition of the claimant, no notice of chang e was given to him and the changed were brought adversely affecting the service condition of the claimant. It is alleged that the claimant has been illegally terminated from service without following section 25F of Industrial Dispute Act and the management violated the Section 25 G, 25M & N of the I.D. Act. It is stated that fresh appointments on contract basis were made while the claimant a regular employees has illegally been terminated from his services. It is stated that the action of the management is against the dignity of labour, unfair labour practice and is evidentially harassing and victimizing towards the claimant.
Workman prayed for his reinstatement along with full back wages from the date of his illeal termination with continuity of service with all consequential benefits and cost of litigation and damages for harassment and victimization while holding the dismissal to be illegal, in the interest of justice.
3. The management filed the written statement and in its written statement it is stated by the management that the present claim is totally misconceived, ill conceived and not tenable and same has been filed only to harass the management. It is submitted that the present reference has been made with respect to the termination letter dt. 04012016 served upon the claimant by the management and the said termination letter was subsequently withdrawn by the LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 6 of 41.
management vide their letter dt. 31052016 and the entire wages and other benefits applicable as per terms of employment of the claimant were duly served upon him. Hence, the present claim is not maintainable. It is further stated by the management that the employment of the claimant was retrenched w.e.f. 31052016 as her services were not required by the management and the claimant along with the letter of retrenchment was paid all benefits including notice pay for one month, retrenchment compensation calculated in accordance with law, gratuity and all other statutory dues and the same was duly served upon the claimant. It is stated that the claimant herein has acknowledged the receipt of retrenchment letter and the compensation and other dues as aforesaid has also not disputed by the claimant. It is further stated that the management on the basis of detailed evaluation had come to the conclusion that it can carry on its business with reasonable efficiency and profitability with the number of employees and posts retained and the role of claimant and the work done by him were both surplus and beyond the requirement of the management. It is stated that, however, the management duly complied with the provisions of section 25 F of the Industrial Dispute Act, 1947 and has also taken into account the provisions of Section 25 F of the Industrial Dispute Act, 1947 while carrying out the retrenchment. It is stated that the post of the claimant has been abolished and no new recruitment has been carried out by the management against the said post which was held by the claimant. Management further stated that the claimant is neither a workman as defined in the Industrial Disputes Act, 1947, the present claim, thus LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 7 of 41.
does not fall in the category of Industrial Dispute Act nor the Industrial Dispute Act is applicable in the present case. It is stated that the management has duly complied with the recommendations of the Wage Board. It is denied by management that the increments and other benefits as applicable are not being paid to the employees of the management. It is further denied that the management has ever threatened its employees to tender resignations.
Management denied that they have received any demand notice from the claimant. It is stated that it would be pertinent to add that the management is in complete compliance of recommendations of the Majithia Wages Board and as applicable to it. It is further denied by the management that they have put any pressure to his employee for resignation as alleged by the claimant. It is further denied that the management has involved in any kind of Unfair Labour Practice as alleged by claimant. It is stated that the implementation of the recommendations of the Wage Board is not under challenge in the present dispute and the claimant has not made any complaint to the management or any authority with respect to non implementation of the recommendations of the Wages Board. It is denied by the management that increments and other benefits as applicable are not being paid to the claimant or the employee of the management. It is reiterated that the management is in complete compliance of the recommendations of the Wage Board and its applicable provisions. Management further denied that they have ever threatened the claimant as alleged by him. It is stated by the management that their action is as per law and they have not violated LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 8 of 41.
any provisions of law or I. D. Act. It is prayed by management that the claim of the claimant may be dismissed with cost and award may be passed in favour of the management.
4. REJOINDER OF THE CLAIMANT :
In his rejoinder the workman has reiterated his stands made in the statement of claim and denied the averments of the management. The workman denied all the allegations of the management in his rejoinder.
5. From the pleadings of the parties, the following issues were framed on 26092016: (1) Whether termination of service of claimant by the management on 04.01.2016 is illegal and/or unjustifiable ? OPW (2) Relief
6. EVIDENCE OF THE WORKMAN :
Workman has examined himself as WW1 and filed his evidence by way of affidavit which is exhibited as Ex.WW1/A. In his evidenciary affidavit the workman has reiterated the contents of the statement of claim. WW1 relied upon the documents which have been exhibited as Ex.WW1/1 to Ex. WW1/27 and documents marked as Mark A to Mark H. In his chief examination WW1 has deposed as under: "I tender my evidence by way of affidavit Ex.WW1/A which bears my signatures at point A & B. I am aware of the contents of my affidavit which are true and correct. I also rely upon documents Ex.WW1/1 i.e. promotion letter dt. 18.02.11 (OSR), Ex.WW1/2 i.e. LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 9 of 41.
salary slip for the month March,12 April,12 May, 2012 and September, 2014 (OSR), Ex.WW1/3 i.e. statement of full & final account dt. 20.01.16, Ex.WW1/4 i.e. representation dt. 04.05.12 (OSR), Ex.WW1/5 i.e. representation dt.14.05.12(OSR), Ex.WW1/6 i.e. letter dt. 17.5.12 (OSR), Ex.WW1/7 i.e. representation dt.21.5.12 (OSR), Ex.WW1/8 i.e. representation dt. 05.06.12 (OSR), Ex.WW1/9 i.e. representation dt. 06.06.12 (OSR), Ex.WW1/10 i.e. representation dt.11.06.12 (OSR), Ex.WW1/11 i.e. representation dt.12.06.12 (OSR), Ex.WW1/12 i.e. letter dt.12.06.12 (OSR), Ex.WW1/13 i.e. representation dt.22.06.12 (OSR), Ex.WW1/14 i.e. representation dt.09.07.12 (OSR), Ex.WW1/15 i.e. office circular No.7/12 dt. 16.07.12 (OSR), Ex.WW1/16 i.e. representation dt.17.07.12 (OSR), Ex.WW1/17 i.e. representation dt.18.07.12 (OSR), Ex.WW1/18 i.e. representation dt.23.07.12 (OSR), Ex.WW1/19 i.e. summary recommendation (OSR), Ex.WW1/20i.e.
representation dt.29.01.16 (OSR), Ex.WW1/21 i.e. Advertisement for filling the vacancies and affidavit Ex.WW1/21A under section 65B of Indian Evidence Act, Ex.WW1/22 i.e. membership receipt of union (OSR), Ex.WW1/23 i.e. complaint to ALC dt.19.01.16 with proceeding sheet ( 2 pages colly.), Ex.WW1/24 i.e. statement of claim filed before ALC, Ex.WW1/25 i.e. copy of letter dt. 18.03.16 with postal receipt (OSR), Ex.WW1/26 i.e. letter dt. 31.5.16 (OSR), Ex.WW1/27 i.e reply to letter dt. 31.5.16. I also rely upon document MarkA i.e. terms & conditions of services, MarkB i.e. termination lettr dt. 04.01.16, MarkC i.e. office order No. 17/12 dt. 27.04.12, MarkD i.e. representation dt. 27.4.12 made by claimant and other LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 10 of 41.
employees (3 pages colly.), MarkE i.e. constitution of review committee for annual increment, MarkF i.e. office order No. 18/12 dt. 30.06.12, MarkG i.e. representation dt.02.12.15, MarkH i.e. Annual report.
7. The workman has been cross examined by the Authorized Representative of the management. In her crossexamination WW1 has stated as under: "I am B.A. pass. I was given appointment letter by the Management when I joined the service. It is correct that there is no clause in my letter of appointment showing that I would not retrenched from the services. I am aware of the contents of my affidavit. It is correct that my termination order dated 04.01.2016 was withdrawn after four months. It is correct that I was issued cheque treating me on duty w.e.f 04.01.2016 till 31.05.2016. It is correct that I was given cheque amounting of Rs. 82,971/ in lieu of salary for the period of 05.01.2016 to 31.05.2016. It is correct that at the time of previous termination of my services on 04.01.2016 I was paid salary amounting to Rs. 83,970/ and the said amount has been encashed by me. It is correct that at the time of retrenchment of my services on 31.05.2016 I was forwarded retrenchment compensation amounting to Rs. 3,35,880/. It is correct that I received gratuity amount amounting to Rs. 3,08,174/ on 01.02.2016. Vol ( this was received after 3 months under protest). I can tell when this amount was credited in my bank account only after seeing my passbook which is not available with me at present.
It is correct that the said amount was given to me by way of LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 11 of 41.
cheque. It is wrong to suggest that the said amount was given to me at the time of my previous termination. Vol. ( this was sent vide speed post at my address). The termination order dated 04.01.2016 and the cheque were offered by Manager( HR) at 4.00 p.m by saying that I should not come to the office by the next day but I did not accept the same. Vol. ( this was sent after two days at my residence through speed post). By that time I did not make any complaint before any Forum regarding my termination dated 04.01.2016. I did not returned back the said cheque to the Management till 18.03.2016. Vol. ( Prior to that I had already made complaint to the Labour Deptt).
It is correct that before 18.03.2016 I did not raise any protest in writing before the Management directly. Vol ( Dispute was raised before the Labour Deptt). It is correct that the termination dated 04.01.2016 was withdrawn by the management. On 01.06.2016, I have challenged my termination in the Court and after returned to my house I found one letter dated 31.05.2016 issued by the management whereby my services were retrenched. I have challenged the order dated 04.01.2016 in the Court regarding my illegal termination. I have not challenged the order of the management dated 31.05.2016 before any Forum as I have filed my case against termination dated 04.01.2016. It is wrong to suggest that the retrenchment compensation was given to me was in accordance with the provisions of Section 25 F of I.D. Act. It is correc that I have not filed any complaint against the Management for the compliance of Majathia Committee Recommendation and I was not party to the LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 12 of 41.
dispute which was challenged by various persons / parties before the Hon'ble Supreme Court by way of Writ Petition No. ( C ) 246/2011 titled as ABP Private Limited and Others Vs UOI and Others.
It is correct that earlier also I was given wages in accordance with the Wage Board Recommendation. It is wrong to suggest that the deposition given by me in Paras 6 to 9 is not related to me. It is correct that prior to my termination order the management has never threatened me for termination of my services. It is wrong to suggest that I was retrenched from the services since I was performance my work was reduced. I have applied for job in Hindustan Samachar, Sector 63 Noida prior to one or two months ago. I have given my BioData there. I can produce the copy of the same in the Court. I received a call for interview from there from the (HR) Manager. I appeared in the interview. I can produce only the record of my Bio Data given there and the interview call was received on phone. It is correct that prior to this I did not try for any job as my services were terminated after 24 years of service. My husband is working. I am not employed anywhere."
During his cross examination it is further stated by WW1 That the Biodata vide which she had applied for job is Ex. WW1/M1. It is admitted by WW1 that there is nothing in Ex.WW1/M1 to show that she had given the said Biodata to Hindustan Samachar Sector63, Noida. WW1 Voluntary stated that this is the general biodata which she had been sending to various management. WW1 denied the work which she was doing has reduced or that she was the nunior most for this reason she was retrenched. It is stated by WW1 that LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 13 of 41.
there is no question of my retrenchment as her services were terminated illegally. WW1 denied the suggestion that she was not terminated on account of Majithia Wage Board. She further denied that she was paid as per Majithia Wage Board. It is stated by WW1 that she does not know as to what was supposed to be paid to her as per Majithia Wage Board, but she was paid less then the Majithia Wage Board. WW1 further stated that she had made a complaint to the management in this regard and correspondence in this regard is already on record. WW1 stated that she had not filed any case in any court in this regard. WW1 denied that she was not terminated or that she was retrenched. WW1 has denied that she has filed the false case.
8. No other witness was examined by the workman and his Authorized Representative Sh. K. C. Dubey closed his evidence on 31072017.
9. EVIDENCE OF THE MANAGMEENT :
The Management has examined Ms. Sharmita Sen, HR Manager of the management as MW1 who tendered her evidence by way of affidavit which is Ex. MW1/A which bears her signature at point 'A' and 'B'. The document given exhibit as MW1/1 is letter dt. 04012016 which is already MarkedB. The document Ex.MW1/2 has already been exhibited by workman as Ex.WW1/26. The document Ex.MW1/4 is also already exhibited by workman in his evidence as Ex.WW1/27. Ex.MW1/3 is the photocopy of cheque dt. 31052016.
LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 14 of 41.
10. In her cross examination MW 1 has deposed in the following manner as under :
"I have been appointed HR, Manager w.e.f. 02052016. I have been appointed on contract basis which has now been renewed up to 31032018. I do not have written authority to sign and depose before this Hon'ble court in this case. However, I have orally been communicated to do so. Mr. Vinod Kumar Chandna was working as Manager in this management, however, he left prior to my joining. The letter dated 13062012, which is already mark A was issued by the said Manager. It is wrong to suggest that the same was not implemented. In fact in pursuance to the same board of directors have also considered the issue and a decision was taken wherein personal pay shall be treated as basis pay for the calculation of all the benefits to be paid to the employees, example gratuity, leave salary etc. It is correct that if personal pay, which was earlier segregated, is added to the basis pay, the total amount of salary might be increases. I do not remember right now the salary of claimant. I can bring her salary slip if directed. It is correct that the management pays the salary/wages to the employee as per 8th category. As per director's report our total revenue was Rs.6.18 crores for the financial year 20142015. I can say about the same after verifying the same from our records which I shall do on the next date. No notice was served upon the workman prior to the termination of service dated 0401 2016. Vol. Services of the workman was terminated as per contract of employment. No show cause notice or any charge sheet were issued nor any enquiry has been conducted before termination. The LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 15 of 41.
General Manager is the appointing authority of the posts upon which the claimant was working. It is correct that a letter revoking termination letter dt.04012016 was issued. It has been filed on record. No letter for reinstatement was issued to the workman. Vol. Because the termination order was revoked and the workman was taken back on roll. It is wrong to suggest that no revocation and reinstatement letter were issued to the workman nor have been placed on record.
10 (i) It is correct that the PF amount of the workman was deposited in their respective account after 04012016. I can bring the record in this regard on the next date. Right now I can not say as on which post the claimant was appointed. I may check it from the record and then tell it. I shall also bring the document regarding terms and conditions of employment of the workman on the next date. Though I have not brought the salary slip of the claimant, I shall bring it lateron. I have discussed with my General Manager about the total revenue being Rs.6.18 crores for the financial year 201415. But I have not verified it. I will do the same and come with the finding. I have also not brought the record pertaining to PF of the claimant after 04012016. I may bring the same later on.
11. I have checked the record and found that the claimant was appointed on the post of Index Assistant. It is a journalist post. It is correct that there are two types of employees in organization journalist and non journalist. It is incorrect to suggest that transfers can not be made from non journalist to journalist category or vice LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 16 of 41.
versa. The then General Manager is the appointing authority for the post of the claimant. It is the Managing Director who has got the authority to terminate or retrench the employees of the organization. It is correct that workman was not called to perform the duty after 04012016. Vol. As the workman was retrenched and the termination was withdrawn vide letter dt. 31052016 and for the said period from 04012016 to 31052016 they were considered on the rolls of the company. As a Personal Assistant her work was to assist the Editor as per his instructions like drafting letters, taking dictation etc. At the time of termination dt. 04012016 claimant was working as Personal Assistant to the Editor. I do not know as to whether any notice for general retrenchment was issued or not by the management. The management do not have any retrenchment policy as such. There was no change of the business and or work of the organization during the time of termination. Q. Whether the management was running smoothly and in normal way or not ?
Ans. The business was working smoothly, however, there was no work at the position the claimant was working.
There was no letter issued for abolishing the post of the claimant. It is wrong to suggest that the work of establishment was going on smoothly, and her work were very much there, the job of the claimant was in place but she was terminated by way of victimization. I do not remember as to how many employees have been employed either on regular or contract basis after 04012016. It is incorrect to suggest that any person has been appointed at the LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 17 of 41.
place of the claimant on the contract basis. Without checking the records I can not say as to what amount is paid as salary to a contract worker similar to the claimant. The profit and loss statement for the year ended 31.03.2015 and for the year ended 31.03.2016 and the photocopy of same are already exhibited as Ex.MW1/W1 (OSR) and Ex.MW1/W2 (OSR) respectively in case LIR No:7911/16 case titled Anil Kumar Vs. M/s Bharat Prakashan Delhi Limited. I will bring the salary slip for the month of August to October 2015 of the workman. No PF for the period 04012016 to 31.05.2016 has been deposited for the claimant, however, the same shall be paid once the settlement of the claim of the workman is finalised. It is wrong to suggest that the basic pay has been factored into basic pay and the personal pay illegally.
12. It is correct that on the component of personal pay, no allowances like HRA, conveyance, DA etc. are calculated and paid. It is correct that for the purpose of all allowances/benefits, the basic pay and the personal pay are taken as basic pay but for HRA and conveyance. It is correct that as per Majithia Wage Board Award (hereinafter read as MWBA) which was effective from 11.11.2011, the arrears of the same was to be paid in four equal installments. It is incorrect to suggest that the workman was not paid arrears as per MWBA i.e. in the four equal installments. At present, I cannot show the record in this regard but I can produce the same if so required. It is incorrect to say that the claimant was not paid the arrears in four equal installments and rather was pressurized to sign a declaration for the arrears to be paid during the span of five years. I LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 18 of 41.
cannot say as to whether the management was implementing the MWBA only on the basis of 30% of the basic pay vol. I have to check the record. It is correct that the salary of the employees upto March 2017 are fixed on the basis of VIII of classification of Newspaper Establishment.
It is also correct that the VIII of classification is meant for the establishment having turnover less than one crore. It is incorrect to suggest that the management has placed itself at level No. 8th, while in fact it was at level No. 6th. I cannot say as to whether the claimant was entitled for medical insurance under the MWBA wef November 2011 but the same was not paid vol. I have to check the record. It is correct that the management grants annual increment to all its employees regularly.
Q: Can you tell the reasons for the management not granting annual increment to the claimant for the year 2011 to 2015? Ans. Because the claimant was falling under Majithia pay scale and as per the pay scale, the claimant had already reached the upper limit of the said scale.
It is correct that the Majithia Wage Board Award was applicable and the pay scales of the claimant was being governed as per the said board. It is wrong to suggest that the claimant was not being paid his increment annually as part of victimization and harassment. It is correct that the management is engaging the personnels on contract basis. Around 1516 personnels have been engaged on contract basis since December 2015. It is wrong to LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 19 of 41.
suggest that till date around 45 personnels have been taken on contract basis. It is correct that Mr. Hanumant Chand has been appointed on contract basis. I cannot tell his salary at present vol. I can check the record. The terms and conditions of service effective from January 1, 1985, in original already Ex.MW1/W5 (running into 4 pages) and certified copy of the order sheet of conciliation proceedings of 26.02.106 to 31.03.2016 which are already Ex.MW 1/W6 shown to the witness. These documents are already exhibited in case LIR No. 7911/16 case titled Anil Kumar Vs. M/s Bharat Prakashan Delhi Limited. The same may also be read in this case also. It is correct that no show cause notice or any inquiry was conducted as per the said terms and conditions prior to the termination of the services of the claimant. I have to check as to whether management had appeared during the course of conciliation proceedings. I need to check the relevant documents for the proof that the management appeared before the Conciliation Officer. I will bring aforesaid proofs on the next date of hearing. It is incorrect to suggest that any person has been appointed on contract basis for the job the claimant was performing.
It is correct that the PF of the claimant has been withheld and the management shall deposit the same later on as per rule. Yes, the salaries of the employees have been paid as per MWBA, however, as there was a financial crunch with the company so it was paid in five installments which was in agreement with the claimant. The mail pertaining payment in installment has already been marked A(5 pages) in case LIR No:7911/16 case titled Anil Kumar Vs. M/s LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 20 of 41.
Bharat Prakashan Delhi Limited. Same may be referred in this case also. Yes medical insurance is now being given to all employees wherein the company is bearing the entire premium amount. However, such scheme was not in place prior to 2016. This is effective w.e.f. 27022016. Yes, Mr. Hanumant Chand was appointed but now he has resigned from his services on 31122017. Yes, the terms and conditions as Marked A has been checked and found correct. Ex.WW1/26 bears my signature. It is correct that I am HR Manager and do not enjoy of power of General Manager. Vol. Although the letter was signed by me, the direction came from the board."
13. No other witness was examined by the management despite opportunities. The evidence of the management was closed vide order dated 03122020.
14. I have heard the final argument of Authorized Representative of the Workman and the management. Perused the records as well as the written submissions filed on behalf of the parties. My findings on the issues are as under:
15. ISSUE NO:1 "Whether termination of service of claimant by the management on 04012016 is illegal and/or unjustifiable ? OPW"
16. Both the parties have filed their written submissions in support of their arguments and A.R for workman have relied upon the judgment which are as under :
On the issue of terms of reference.
LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 21 of 41.
(1) 1967 I LLJ 423 Sc, Delhi Cloth General Mills Co. Ltd. (2) AIR 1979 SC 1356 Pottery Panchat. (3) ILR (1981) II Delhi, Indian Bank Vs. R.K. Baweja (4) 1982 LAB.IC 1309, M/s Indian Tourism Development Cor. (5) 1987, I LLJ 141 English Electric Company of India Ltd. (6) 1997 I AD (Delhi) 134 Shri Moolchand Khairati Hos. On the issue of applicability of I.D. Act. (7) The Associated Press Vs. Luinda Keys Long & Anr. WP(C) No. 3738/2008 dated 31..07.2009.
(8) M/s Bennet Coleman & Co. Ltd. Vs. State of Bihar & Ors. (SC) Crl. Appeal No. 269/2015 dated 10.02.2015. On the issue of Majithia Wage Board Award. (9) Shobha Ram Vs. Ramesh Chandra Aggarwal, WP (C) No. 246/11.
On the issue of reinstatement with full back wages. (10) (1981) 3 SCC 225 : Mohan Lal Vs. Mgt. of M/s Bharat Elec Ltd.
(11) AIR 1986 SC 458 : Workmen of American Vs. Mgt. Amercian Express.
(12) 2015 (1) Scale 360 : Jasmir Singh Vs. State of Haryana & Anr. (13) 2010 (4) Scale 203 : Anoop Sharma Vs. Executive Engineer Public Health Div.
(14) 2010 (1) Scale 613 : Harjinder Singh Vs. Punjab Ware House Corpn.
(15) (2013) 10 SCC 324 : Deepali Gundu Survse Vs. Kranti Junior Mahavidyalya & Ors.
LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 22 of 41.
(16) (2007) 2 SCC 433 : J.K. Synthetics Ltd. Vs. K.P. Aggarwal & Anr.
(17) (2015) 8 SCC 150 : Fisheries Deptt. State of U.P. Vs. Charan Singh.
(18) 2014 (10) Scale, 135 : Raghubir Singh Vs. General Manager, Har. Roadway.
(19) 2019 (173) DRJ 281 (DB) : LPA 533/2017, Mahender Pal Vs. DTC.
17. On the other hand, A.R for the management also filed bunch of judgments relied upon by the management which are as under :
(1) Parry and Co. Ltd. Vs. P.C. Pal (AIR 1970 SC 1334) (2) Dadi Jagannadham Vs. Jammulu Ramulu and Ors. (2001) 7 Supreme Court cases 71) (3) Voltas Ltd. Vs. State of Maharashtra [2013(6) Mh. L.J 460) (4) Mool Chand Kharati Ram Hospital and Ayurvdic Research Institute Vs. Secretary (Labour) Government of N.C.T of Delhi [2002 (1) L.L.N 1191] (5)Workmen of Bengal Electric Lamp Works Ltd. Vs. Bengal Electric Lamp works Ltd. And Ors. [(1958) I LLJ 571] (6) Ranbir Singh Vs. Execitive Eng. P.W.D [2021 SCC On line SC 670] (7) Nilpur Tea Estate Vs. State of Assam & Ors. [(1996) 1 Supreme Court Cases 60] (8) Avishek Raja & Ors. Vs. Sanjay Gupta (2017) 8 Supreme Court Cases 435] LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 23 of 41.
(9) Messrs Bharat Iron works Vs. Balubhai Patel and Others [(1976) 1 Supreme Court Cases 517] (10) State of Uttar Pradesh and another Vs. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti & Ors. [(2008) 12 SCC 675] (11) L. Robert D'Souza Vs. Executive Engine Southern Railway and another [(19820 1 SCC 645] (12) Sirsilk Ltd. Vs. Government of Andhra Pradesh and another (AIR 1964 SC 160)
18. In his arguments, it is submitted by A.R for workman that services of workman has been illegally terminated by the management and Section of I.D has been violated and management has also violated section 25 F and G. It is also submitted that the management in their written statement has admitted that the services of workman has been terminated by management and later on termination letter was revoked by the management and workman was reinstated by the management and subsequently the workman has been retrenched from the services of the company by paying retrenchment wages along with other legally recoverable wages. During the course of arguments. It is also submitted by A.R for workman that the turnover of the management was very high but the category of the management not changed as per the turnover which is reflecting in Ex.MW1/W2 and with the sole intention that not to pay the legally recoverable dues and to minimize the wages as per the recommendations of Majithia Wage Board Award, the category of the management company was not changed and it was shown in lower category so that the management can avoid the increased LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 24 of 41.
wages as per the Majithia Wage Committee report.
19. On the other hand, A.R for management has submitted that the category Ex.MW1/W2 is showing the profit and loss of the management company.
20. Herein in the present case, it is to be noted that the category of the company was high but the same was not shown in the higher category even the turn over of the company was high only with the sole motive to defeat the interest of the workman by not extending the benefit of wages increased due to the Majithia Wage Board Award which were to be paid to workmen after the approval of committee report.
21. In his arguments it is also argued by workman that workman has been harassed with the sole motive to terminate them and to withheld their wages and the action of the management in terminating the workman was illegal and unjustifiable. It is also submitted that even some of the workmen were transferred to some other places with the sole motive to harass so they themselves can leave the management or to remain absent at their place of posting so that the management can take appropriate action against them. It is further submitted by A.R for workman that the subsequent action on the part of management by revoking the termination was an after thought action only with the sole motive to defeat the very interest of workman and to act against the terms of reference after withdrawal of the termination, the workman has been reinstated and they were later on retrenched by paying the retrenchment compensation which clearly malafide on the part of management and this itself clearly LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 25 of 41.
indicates that the management had terminated the services of the workman illegally and unjustifiably and later on the colour is given to the termination as of retrenchment by paying the wages as applicable as per the post of workman.
22. A.R for workman also submits that as per section 25 F which reads as under :
"25 F. Conditions Precedent to Retrenchment of Workmen No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until :
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay (for every completed year of continuous service ) or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government (or such authority as may be specified by the appropriate Government by notification in the Official Gazette)".
The termination is held to be illegal if the conditions of Section 25 F are not complied with.
23. In his arguments it is submitted by A.R for workman that the management has decided to pay only 30% of basic pay as per interim LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 26 of 41.
measure. It is submitted that in that course, it illegally and unjustifiable broke the basic pay in two parts i.e 1. Basic Pay and 2. Personal Pay and it was done to reduce the basic pay as lower level so as the other allowances shall be computed on that basis of the basic pay could be kept at the minimum level and by reducing the basic pay meant to reduce the amount of allowances also and consequently the total salary is effected by not following the the recommendations of the Majithia Wage Board Award. It is also submitted that the management stopped the yearly increments in the basic pay and also not paid bonus to the workman for so many years. A.R for workman also raised the issue of biasness against the management and submitted that the management against the dignity of labour, unfair labour practice and harassed and victimized the workmen apart from violating the principles of natural justice and the fundamental right to life consisting right to livelihood/earning. A.R for workman prayed that the action of the management by terminating the services of the workman and later on by paying the retrenchment compensation and the workman is entitled for reinstatement with full back wages.
24. On the other hand, A.R for management also submitted that the services of the workman were terminated in terms of his service conditions as per the bye laws of terms and conditions of service effective for 01.01.1985 in clause 18, which read as under :
"The employment will be liable to be terminated on either side on giving three months notice or payment of salary in lieu thereof".
It is also submitted that the management however taking into LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 27 of 41.
consideration the considerable period of employment and on legal advice and as an abundant caution took a policy decision to follow the procedure of retrenchment as provided under Section 25 F of I.D Act and for that reason the management has issued letter dated 31.05.2016 withdrawing the termination letter dated 16.12.2015 and the claimant was considered on the employment w.e.f 17.12.2015 to 31.05.2016. It is further submitted that the management had taken a decision and retrenched the claimant from his employment w.e.f 01.06.2016 and all compliances under the provisions of Industrial Dispute Act including the payment of retrenchment compensation, notice pay and other compliances were duly carried out by the management and a sufficient amount as retrenchment compensation has been paid to the workman.
25. In his statement of claim, the workman has prayed for reinstatement with full back wages from the date of his alleged illegal termination and continuity of services, while the arguments of workman was roaming around the claim of wages as per the Majithia Wage Board Award. In his arguments, AR for the workman has argued that there is a gross violation of Section 25 F and 25 G. In the claim petition, the claimant has raised the allegations of harassment and illegal termination of his services by the management. During the course of his arguments, A.R for the workman submits that the workman has been victimized by the management only with the purpose to defeat their claim of increased wages as per the Majithia Wage Board Award and the management has withheld the wages of workman illegally.
LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 28 of 41.
26. Before coming to the final conclusion, I deem it appropriate to refer the relevant provisions of Industrial Dispute Act which has been referred by the AR for the workman. Present reference is a reference under Section 10 of I.D. Act. Section 10 (4) of Industrial Dispute Act reads as under :
[(4) Where in an order referring an industrial dispute to [a Labour Court, Tribunal or National Tribunal] under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, 10[the Labour Court or the Tribunal or the National Tribunal, as the case may be], shall confine its adjudication to those points and matters incidental thereto.
27. AR for the workman also refer Section 25 F and 25 G, which reads as under :
Section 25F of Industrial Disputes Act : Conditions precedent to retrenchment of workmen. No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 29 of 41.
(b) The workman has been paid, at the time of retrenchment, compensation which shall be equivalent o fifteen days; average pay [for every completed year of continuous service] or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the official gazette].
Section 25G of the Industrial Disputes Act: procedure for retrenchment. Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.
28. Though in his arguments, the grievances of claimant appears to be regarding non payment of increased wages as per the Majithia Wage Board Award, but, in his prayer in his claim petition, the workman is praying for reinstatement with full back wages.
29. On the other hand, AR for the management submits that there is no denial regarding termination of the services of workman by the LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 30 of 41.
management as pleaded in the written statement by the management, but at the same time, the termination was revoked by the management on 31.05.2016 and the period of termination was considered as continuity of service of the workman. Finally, the workman has been retrenched by the management by paying him the retrenchment compensation and by following the due process of law.
30. It is further submitted by AR for the management that the only question remains for adjudication is to decide the issue of retrenchment whether the adequate retrenchment compensation is given to the workman or not. It is further submitted by AR for the management that though the matter was ended at the stage when the retrenchment compensation was paid to the workman, but the Ld. Predecessor of this Court vide order dated 26.09.2016 has been pleased to held that this Court cannot go beyond the terms of reference and continued with the present matter to adjudicate the reference.
31. It is further submitted by AR for the management that as per Section 10 (4) of the Industrial Dispute Act as amended up to date. Section 10 (4) of Industrial Dispute is as under :
(4) Where in an order referring an industrial dispute to [a Labour Court, Tribunal or National Tribunal] under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, [the Labour Court or the Tribunal or the National Tribunal, as the case may be,] shall confine its LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 31 of 41.
adjudication to those points and matters incidental thereto.
32. It is submitted by AR for the management that the termination and revocation of termination and thereafter the payment of retrenchment compensation is a series of action and reaction on the part of management and as per Section 10 (4) of Industrial Dispute Act made it clear that the payment of retrenchment compensation and revocation of termination is an incidental matter in continuity of the termination of service of the workman by the management. AR for the management has also relied upon the latest judgment of the Hon'ble Apex Court cited as Ranbir Singh vs Executive Engineer PWD 2021 SCC online SC670 in the aforesaid judgment, the Hon'ble Apex Court has also referred the judgment of Hon'ble Apex Court titled as B S N L vs Ghurumal (2014) 7 SCC 177. In the judgment, the Hon'ble Apex Court refer the para no. 34 of the judgment as under :
34.The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non payment of retrenchment compensation and notice pay as mandatorily required under Section 25F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation.
Since such a workman was working on dailywage basis and even after he is reinstated,he has no right to seek LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 32 of 41.
regularisation [see State of Karnataka v. Umadevi (3) [State of Karnataka v. Umadevi (3),(2006) 4 SCC 1 :
2006 SCC (L&S) 753] ]. Thus, when he cannot claim regularisation and he has no right to continue even as a dailywage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.
33. It is also submitted by AR for the management in his arguments that the only claim of the workman is to asked for the increased wages as per the Majithia Wage Board Award and such petition is maintainable only under Section 17 of the Working Journalist and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 and the present petition of the workman for reinstatement is not maintainable in the present form. In his arguments it is submitted by AR for management that the claimants in their claim petition as well as in their arguments has leveled the allegations of victimization and threats. It is submitted that no such single complaint for any alleged threat has been lodged by the claimant to the police or the same is also not filed on record. It is submitted that there is no case either initiated by any Court or pending before any Court of law. Even no such documents has been LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 33 of 41.
produced regarding the threats and victimization.
34. In his arguments it is also submitted by A.R for management that admittedly there is no effort on the part of claimant after the retrenchment and the claimant has admitted in his examination.
"I am unemployed since the date of my termination and awaiting the verdict of the Court. I have not tried to search for employment anywhere:
This deposition of the claimant itself clearly indicates that claimant is sitting idle and he is having a family to look after and it is not possible that a person having family can sit without job as the claimant being the sole bread earner has to look after his family for daily needs.
35. In his arguments, it is also submitted by A.R for management that after the publication of report of Majithia Wage Board Award the same has been challenged by so many workmen before the Hon'ble Supreme Court and same has been finally decided by Hon'ble Supreme Court vide judgment titled as Avishek Raja & Ors. Vs. Sanjay Gupta (2017) 8 SCC 435. The Hon'ble Supreme Court in para 29 has been pleased to held as under :
29. having clarify all doubts and ambiguities in the matter and upon holding that none of the newspaper establishment should, in the facts of the cases before us, be held guilty of commission of content, we direct that hence fourth all complaints with regard to non implementation of Majithia Wages Board Award or otherwise be dealt LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 34 of 41.
with in terms of mechanism, as provided under section 17 of the Act. It would be more appropriate to resolve such complaints and grievances by resort to the enforcement and remedial machinery provided under the Act rather than by any future approaches to the Court in exercise of the contempt jurisdiction of the Court or otherwise".
36. From the bare reading of the aforesaid para it is clear that the Hon'ble Apex Court has been pleased to held that the recommendation of the Majithia Wage Board Award can be enforced by adopting the mechanism provided under the Working Journalist and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 and no contempt petition shall be entertained for non implementation of the MWBA.
37. A.R for the workman has also relied upon the judgment titled as Tapas Kumar Kaul Vs. Bharat Sanchar Ltd. (2014) 15 SCC 313, in para no. 4 it has been held by Hon'ble Apex Court :
4. It is no doubt true that a court can pass an order substituting an order for reinstatement by awarding compensation but the same has to be based on justifiable ground viz. Where the industry is closed II where the employee is superannuated and has going to retire short (III) where the workman has been rendered incapacitated to discharge the duty and can not be reinstated and/or when he has lost confidence of the management to discharge duties.
What is sought to be emphasized is that there may be appropriate case on facts which may justify substituting the LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 35 of 41.
order of reinstatement by award of compensation, but that has to be supported by some legal and justifiable reason indicating why the order of reinstatement would be allowed to be substituted by award of compensation.
38. It is submitted by A.R for workman that Hon'ble Apex Court has been pleased to set aside the order of Hon'ble High Court and restore the award of the tribunal with the reinstatement of workman. It is submitted by the A.R for workman that in the present case the management has not issued any charge sheet. No departmental proceedings have been conducted against the workman and he has been terminated without any justifiable reason therefore, the workman is entitled for reinstatement with full back wages, as due to loss of employment he suffered mental trauma, benefit of health, loss of study, loss of social status.
39. From the above discussion, it is clear that the workman was terminated on 04.01.2016 without conducting any disciplinary enquiry without serving any charge sheet to workman and later on the termination has been withdrawn by the management and they were reinstated and were treated as continue in service for the period of termination and later on the claimant has been retrenched by paying the retrenchment compensation. In these circumstances, I am of the considered opinion that the services of the workman has been illegally terminated by the management. Accordingly, the issue is decided in favour of the workman and against the management.
40. Relief :
LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 36 of 41.
In the claim petition in the prayer clause, the workman has prayed for reinstatement with full back wages and other consequential benefits with continuity of service. The reference has been received by the Court regarding illegal termination of the workman and the reliefs for which the workman is entitled for and what directions are necessary in this respect. The entire arguments of A.R for workman was roaming around the issue of illegal termination as well as the fact that they have not been given the retrenchment compensation as per the Majithia Wage Board Award. There was an issue raised by the A.R for workman that the management has shown the establishment in 8th category, where the business of establishment should be less than one crore. In the documents exhibited by the workman vide Ex.WW1/4 where the letter was issued to the workman vide letter dated 03.10.1997, the management has informed the claimant that the management has decided to keep the establishment in 6th category and the wages were paid as per the recommendations of Bachawat Pay Commission. When the establishment was already in 6th category, therefore showing of the establishment in 8th category as reflected in Ex.WW1/21, after the recommendations of Majithia Wage Board Award appears to have been kept deliberately to minimize the wages of the claimant and same is uncalled for. However, in the documents available on record file, it is also proved on record that the recommendations of Majithia Wage Board Award has already been implemented by the management vide Mark A running in five pages, wherein the workers has been informed by the management that LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 37 of 41.
they have implemented the recommendations of Majithia Wage Board Award and the fifth installment is already paid as reflected in email dated 04.03.2016. Therefore, it can not be accepted that the management has not implemented the recommendations of Majithia Wage Board Award.
41. By putting the establishment in 8th category may cause the financial loss to the workman but no such deposition is made to the effect that how much amount is calculated as per the recommendations of Majithia Wage Board Award. As it is already discussed above regarding Section 10 (4) of the Industrial Dispute Act where it is mandated that the tribunal or the Labour Court shall confine its adjudication to those points and matters which are incidental thereto.
42. Here in the present case, if we take the dispute in series of action and reaction, firstly the workman has been terminated by the management which has been held to be illegal as per the findings given in the issue no. 1 but at the same time the termination was revoked by the management and the absent period was treated as continuity in service and the retrenchment compensation has been paid to the workman by the management following the provision of Section 25 G of Industrial Dispute Act. In view of the latest judgment of Hon'ble Apex Court in case titled as Ranbir Singh vs Executive Engineer PWD 2021 SCC online SC 670 in the LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 38 of 41.
aforesaid judgment, the Hon'ble Apex Court has also referred the judgment of Hon'ble Apex Court titled as BSNL vs Ghurumal (2014) 7 SCC 177. In the judgment, the Hon'ble Apex Court refers the para no. 34 of the judgment as under :
34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non payment of retrenchment compensation and notice pay as mandatorily required under Section 25F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation.
Since such a workman was working on dailywage basis and even after he is reinstated,he has no right to seek regularisation [see State of Karnataka v. Umadevi (3) [State of Karnataka v. Umadevi (3),(2006) 4 SCC 1 :
2006 SCC (L&S) 753] ]. Thus when he cannot claim regularisation and he has no right to continue even as a dailywage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 39 of 41.
such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.
43. The management has also filed on record the terms and conditions of service vide Ex.MW1/W5 where in clause 18 which read as under :
"The employment will be liable to be terminated on either side on giving three months' notice or payment of salary in lieu thereof. However, no notice would be necessary to be given by the company if in the opinion of the company an employee is found guilty of any of the mis conducts as are generally understood in employment, particularly disobedience insubordination, insolance, any acts subversive of discipline, habitual negligence of duties, breach of trust, dishonesty or embezzlement, illegal strikes, habitual late attendance or absence; goslow, neglect etc. etc".
44. The claimant is signatory to these terms and conditions dated 06.11.1996, as after the revocation of termination the workman was reinstated by the management and period of five months was treated as continuity of service and he has been given retrenchment compensation, therefore in my considered opinion the workman is not entitled for any relief from this Court. Accordingly her claim is dismissed. However, it is made clear that the workman shall be at liberty to file recovery petition under the I.D Act u/s 33 C (2) or LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 40 of 41.
under Section 17 of Working Journalists and other Newspaper Employees (Condition of Service) and Miscellaneous Provisions Act as applicable for the increased wages, if any as per the recommendations of Majithia Wage Board Award. The reference is answered accordingly. Copy of Award be uploaded on the website of RADC. Copy of the same be also sent to concerned department through electronic mode or through Dak. File be consigned to record room after due compliance.
Announced in the open court.
Dated : June 08, 2022.
(Mukesh Kumar) Presiding Officer Labour Court Rouse Avenue Courts Complex, New Delhi.
LID No. 7913/2016, Aanupama Srivastava Vs. Bharat Prakashan (Delhi) Ltd. Page No. 41 of 41.