Delhi District Court
Shri Jag Mohan vs M/S. T.R. Sawhney Motors Pvt. Ltd on 23 July, 2016
IN THE COURT OF SHRI UMED SINGH GREWAL
POLCXVII ROOM NO. 22 :KKD COURTS: DELHI
LIR 5294/16 (Old No. LIR 24/14/09)
Unique ID No.02402C0235752009
Shri Jag Mohan
S/o Late Shri Pati Ram,
C/o Sanjay Sharma (Adv.) Seat No. K127,
4th Floor, Patel Hall, KKD Court,
Shahdara, Delhi110032
..............Workman
Versus
M/s. T.R. Sawhney Motors Pvt. Ltd.,
At Show Room & workshop 1,3334,
Hari Chand Mela Ram Complex,
East Gokalpur, Wazirabad Road,
Delhi110094
............. Management
DATE OF INSTITUTION : 12.08.2009.
DATE ON WHICH AWARD RESERVED : 22.07.2016.
DATE ON WHICH AWARD PASSED : 23.07.2016.
A W A R D :
1. Vide Order No. F.24(28)/DLC/NE/09/2034 dated 07.08.09
issued by Government of NCT of Delhi, a reference was sent to this
Court with the following terms:
"Whether services of Shri Jag Mohan S/o
Shri Pati Ram have been terminated illegally
and/or unjustifiably by the management and
LIR 5294/16 1/21
if so, to what sum of money as monetary
relief alongwith other consequential benefits
in terms of existing laws/Govt. Notifications
and to what other relief is he entitled and
what directions are necessary in this
respect?"
2. Claimant's case is that he had started working with the
management as electrician since 10.04.2002 at the last drawn salary
of Rs.4230/ per month. Earlier, he had filed an application under
Section 33C(2) of the I.D. Act, 1947 in which he had claimed
reinstatement with back wages but such relief was not maintainable
in that application and hence, he withdrew the same on 14.08.2008.
He had performed duties to the entire satisfaction of the
management and never gave opportunity of any complaint. But the
management was not providing him facilities like appointment
letter, ESI and PF etc. from the date of appointment, attendance
card and minimum wages. When he demanded those facilities, the
management got enraged and to teach him a lesson, withheld earned
wages from 01.09.2006 to 13.10.2006. His signatures / thumb
impressions were obtained on blank papers, vouchers, registers and
letter heads etc. forcibly on 13.10.2006. He was beaten and
threatened and his service was orally terminated on the same day
i.e. 13.10.2006. He visited establishment of management several
times for joining back in job but the management did not allow him
to join duty. He sent a demand notice dated 15.11.2006 but he was
neither reinstated nor his dues were cleared. He had given a
LIR 5294/16 2/21
complaint to PS Nand Nagri on 13.10.2006 itself that his signatures
were obtained on blank papers forcibly by beating him. He is
unemployed since termination. He never absented from duties and
never resigned from the job.
3. Written statement is to the effect that the case is not
maintainable because the claimant is not entitled to claim anything
which did not exist when he had filed a case U/s 33C(2) of the I.D.
Act, 1947. It is further mentioned that the claimant should have
amended his case U/s 33C(2) of the Act suitably so as to claim
reinstatement with continuity of service and back wages in that case
itself and the remaining relief would have come to him
automatically. It has been denied that his signatures / thumb
impressions were forcibly obtained on blank papers, vouchers,
registers and letter heads by beating him. In fact, he had appeared
in the office of management on 13.10.2006 after a long absence and
voluntarily tendered resignation on the same day consequent to
which the management had sent him a letter on 25.10.2006 to take
full and final amount but he did not appear.
4. Following issues were framed on 19.02.2011:
(i) Whether the claim was maintainable in view of preliminary
objections taken by the management in the written
statement? Onus on parties.
(ii) Whether the management had illegally and/or unjustifiably
terminated the services of the workman on 13.10.06? OPW
(iii) Whether the workman had after long absence appeared on
LIR 5294/16 3/21
13.10.06 to tender his resignation voluntarily? OPM
(iv) Whether the workman had cause of action to file the present
claim after receipt of registered letter 25.10.06 for full and
final settlement of his dues?OPW
(v) Relief.
5. In order to substantiate the case, the claimant tendered his
affidavit in evidence as Ex.WW1/A mentioning all the facts stated
in stated in statement of claim. He relied upon following
documents:
(i) Ex.WW1/1 dated 15.11.2006 is demand notice.
(ii) Ex.WW1/2 is postal receipt vide which demand notice was
sent.
(iii) Ex.WW1/3 dated 17.11.06 is UPC receipt vide which
demand notice was sent.
(iv) Ex.WW1/4 is courier receipt vide which demand notice was
sent.
(v) Ex.WW1/5 is courier receipt vide which demand notice was
sent.
(vi) Ex.WW1/6 dated 17.11.06 is UPC receipt vide which
demand notice was sent.
(vii) Ex.WW1/7 courier receipt receipt vide which demand
notice was sent.
(viii) Ex.WW1/10 is complaint dated 13.10.06 by him to PS
Nand Nagri, Delhi in respect of incident of 13.10.06.
(ix) Ex.WW1/11 is statement of claim before Conciliation
LIR 5294/16 4/21
Officer.
(x) Ex.WW1/12 is written statement before Conciliation Officer.
(xi) Ex.WW1/12 is ESI Card in which his date of joining the
management is mentioned as 15.07.2004.
(xii) Ex.WW1/13 is his identity card issued by management.
6. The management examined its Director Sh. Sanjiv Sawhney
as MW1. He deposed that the management was the fastest growing
and number one Maruti Dealership Company in Delhi and NCR
providing number of services to end users of Maruti Automobile
and auto ancillaries. It is engaged even in the business of driving
schools, workshops, true value outlets and taxi services. More than
1200 persons are working in its various establishments. The
claimant had joined the management on 15.07.2004 as an
electrician. He and coworker Sh. Bijender Singh were absent in
entire month of August, 2006. They had worked for just six days in
September, 2006. Both resigned on 29.09.2006. After voluntarily
resigning the job, the claimant never turned up at the work place
and that is why the management was constrained to send him a
registered letter dated 25.10.2006 for collecting full and final
settlement dues. He next deposed that the management was still
ready to give him employment because there is no dearth of
vacancies with it. It is in dire need of skilled workers. He next
deposed that this court, vide order dated 12.10.2011, had directed
LIR 5294/16 5/21
the claimant to resume duty alongwith labour inspector next day
and the labour inspector was directed to file report. He alongwith
labour inspector had come to the premises of management on
12.10.2011 itself at 6.00 p.m. but he was asked by the Court to
resume duty w.e.f. 13.10.2011. He did not come for duty on
13.10.2011. Next deposition is that the management had given him
option on 25.10.2008 to join back but he himself chose to claim on
the pending dues. He relied upon two documents:
(i) Ex.WW1/M1 is the attendance card of the claimant for
September, 2006 (not filed on the case file of this case but it
is annexed in the file of case titled as Jag Mohan Vs. M/s.
T.R. Sawhney Motors (P.) Ltd. bearing LCA 01/07).
(ii) Mark A is letter dated 25.10.2006 by management to
claimant for full and final settlement (not filed on the case
file of this case but it is annexed in the file of case titled as
Jag Mohan Vs. M/s. T.R. Sawhney Motors (P.) Ltd. bearing
LCA 01/07).
Issue No. 1:
7. Ld. ARM argued that the claimant is not entitled to claim
anything which did not exist when he had filed a case U/s 33C(2)
of the I.D. Act.
On the other hand, Ld. ARW argued that in the present case,
he is claiming only reinstatement with continuity of service and
LIR 5294/16 6/21
back wages. He is not claiming any other relief. So, his case is
very much entertainable.
8. The claimant had filed LCA 01/07 titled as Jag Mohan Vs.
M/s. T.R. Sawhney Motors (P) Ltd. claiming relief of earned wages,
conveyance allowance and reinstatement with back wages etc. The
then POLC Mr. T.S. Kashyap dismissed that case vide judgment
dated 04.03.2010 holding that claim for earned wages and
conveyance allowance were covered in Schedule 3 of the Act and
hence, those reliefs can be granted only by Industrial Tribunal and
not by Labour Court. The Ld. POLC further held that the workman
cannot claim reinstatement with continuity of service and back
wages in petition U/s 33C(2) of the I.D. Act. The present case is
for reinstatement with continuity of service and back wages and
hence, it is definitely entertainable.
9. The second argument of Ld. ARM is that in case U/s 33C(2)
of the Act, there were two options before workman. The first
option was that he should have challenged the termination by
making necessary amendment U/s 2(A) of the Act. The second
course would have been to claim the relief of only recovery of
money by abandoning the relief of reinstatement with continuity of
service and 100% back wages. He should have chosen the first
option as by doing so, the subsequent relief would have been
automatically granted to him by the Court. But he did not adopt
LIR 5294/16 7/21
any of the course and his case was dismissed by the Court. Due to
that reason, it is not maintainable and he relied upon Balwant
Singh and others Vs. Union of India and another AIR 1990 P &
H 26.
10. In the cited case, the Hon'ble High Court of Punjab and
Haryana held that bare perusal of order 23 Rule 1(4) of CPC makes
it clear that a person is debarred from instituting a fresh suit after
withdrawal of earlier suit. It further held that the plaintiff was
precluded from instituting a fresh suit in respect of the same subject
matter. In the case in hand, the earlier case was U/s 33C(2) of the
I.D. Act, 1947. Under that Section, the Labour Court cannot grant
relief of reinstatement with continuity of service and back wages
and that is why, the case of the claimant was dismissed. That case
was not withdrawn by him. So, the cited law is not applicable.
Moreover, the strict provisions of Civil Procedure Code 2008 are
not applicable to the labour cases. For getting any relief U/s 33
C(2) of the Act, either there should be settlement or an award in
favour of the workman. Before getting his termination declared
illegal, any workman cannot claim back wages U/s 33C(2) of the
I.D. Act. Due to that reason, the case of the claimant U/s 33C(2)
of the Act was dismissed. The other reason of dismissal was that
the labour court cannot grant reinstatement in that Section. But any
reference case against termination, such relief can definitely be
LIR 5294/16 8/21
granted by Labour Court. The present one is the reference case and
hence, it is very much maintainable.
11. In view of above discussion, this issue is decided in favour of
claimant and against management.
Issue Nos. 2, 3 & 4:
12. All these issues are interconnected and hence, are being taken
together.
13. Ld. ARM argued that the claimant was absent in entire month
of August, 2006. He had worked hardly for six days in September,
2006. After such long absence, he appeared in the office of the
management on 13.10.2006 and orally resigned from the job.
Consequently, the management sent him a registered letter Mark A
for taking full and final settlement amount but he did not turn up.
He further submitted that even in petition U/s 33C(2) of the Act,
the management had given him offer to join back but he did not
respond. This court vide order dated 12.10.2011, had asked him to
rejoin w.e.f. 13.10.2011 but he appeared before management at 6.00
PM on 12.10.2011. He did not appear on 13.10.2011 and
afterwards. His absence proves that he had resigned from the
management on 13.10.2011. He further submitted that factum of
resignation has been admitted by claimant in para No. 10 of demand
notice Ex.WW1/1. He relied upon (i) Gyanendra Sahay V. M/s.
LIR 5294/16 9/21
Tara Iron and Steel Co. Ltd. AIR 2005 Supreme Court 2795 and
(ii) Divisional Controller, N.E.K.R.T.C. Vs. H. Amaresh AIR 2006
Supreme Court 2730.
On the other hand, Ld. ARW argued that the management
had obtained signatures and thumb impressions of the claimant on
some blank papers, vouchers, register and letter heads on
13.10.2006 forcibly by beating and abusing him. He had not
tendered any resignation on that day and that is why he immediately
reported the matter to PS Nand Nagri. He admitted that the
claimant was directed by the court on 12.10.2011 to join the
management but he was not allowed by the management to work on
13.10.2011.
14. In Gyanendra Sahay Vs. M/s. Tata Iron and Steel Co. Ltd.
(supra), the workman had written letter in his own handwriting for
voluntarily retirement. His request was accepted by the
management with immediate effect. The workman had accepted
the retiral benefits without any protest. In this background, the
Apex Court held that he cannot turn around and say that he was
compelled to submit premature/voluntary retirement letter. In the
case in hand, the resignation letter of the claimant has not been filed
by the management. So, he cannot be said to have resigned from
the job. He did not accept his dues tendered by the management
vide letter dated 25.10.2006. So, the facts of the cited case and case
LIR 5294/16 10/21
in hand are diametrically opposite to each other.
In Divisional Controller, N.E.K.R.T.C. Vs. H. Amaresh
(supra), the allegations against the workman were that he was
doing duty on bus as conductor under the influence of liquor and
did not issue tickets to the passengers and in this way, he had
misappropriated money of the corporation. Charge regarding
pilferage was proved against him. Such are not the facts of the case
in hand and hence, the cited law is not applicable.
15. As per the arguments of Ld. ARM, the claimant had resigned
from job orally. Following crossexamination of MW1 prove that
resignation was in writing:
"... Resignation letter was not written or signed in my
presence. The resignation was accepted on the same day. A
copy of the resignation letter, after acceptance was given to
the workman..."
So, arguments of Ld. ARM and crossexamination of MW1
are contradictory to each other. Crossexamination of MW1 proves
that the resignation was in writing. The management did not
place on record the resignation letter. Moreover, as per para No.
6 of reply on merits of statement of claim, the claimant had resigned
on 13.10.2006 but as per para No. 4 of affidavit in evidence of
MW1, he had resigned on 29.09.2006.
16. It is not disputed that the management had sent a letter Mark
LIR 5294/16 11/21
A dated 25.10.2006 to the claimant inviting him to take full and
final settlement money in view of his resignation. In response, the
claimant had sent demand notice dated 15.11.2006 Ex.WW1/1
mentioning in para No. 10 that he had received a letter dated
25.10.2006 from the management for full and final settlement of his
dues. It is further mentioned that when he reached to the premises
of the management, he was again ill treated and the management
refused to pay him dues and also refused to take him back in job.
Para No. 10 of the reply shows that the claimant had not resigned
from the job and that is why, he mentioned in that paragraph that
the management had refused to take him back in job. So, there is
no admission, as argued by Ld. ARM, in Ex.WW1/1 by the
claimant that he had resigned from the job.
Letter dated 25.10.2006 Mark A for full and final settlement
is based upon the resignation of the claimant. The basis of that
letter is the resignation letter but the management did not place on
record the resignation letter of the claimant. The parties are
expected to produce best evidence before the court. The resignation
letter was the best evidence but it has been withheld by the
management and the only reason may be that the claimant had not
resigned from the job.
MW1 deposed in examinationinchief that the claimant had
resigned on 29.09.2006. He deposed in crossexamination that the
management had sent 23 letters to the workman after 29.09.2006
LIR 5294/16 12/21
calling upon him to join duty. Had the claimant resigned on
29.09.2006, what was the reason for management to send him
letters inviting to join duty.
It is correct that as per attendance card Ex.WW1/M1 for the
month of September, 2006, the claimant had worked on 6, 7, 8, 9,
10 & 29, September, 2006. The alphabet 'A' is appearing against
the date 30.09.2006. It means that the management was treating
him absent on 30.09.2006. Had the claimant resigned on
29.09.2006, the management would not have shown him absent on
30.09.2006. It is correct that the claimant had worked with
management in September, 2006 only for six days but his absence
from 11.09.2006 to 28.09.2006 was condoned by the management
by allowing him to join duty on 29.09.2006.
If the claimant had resigned on 13.10.2006, the management
would have given all his dues on that very day. Why the
management waited for 25.10.2006 to send a letter Mark A to him
to collect full and final settlement? There is no explanation with the
management why it did not give all dues to him on 13.10.2006
itself? It is pertinent to mention that case of the claimant is that his
service was terminated on 13.10.2006 by obtaining his signatures
on blank papers by beating and abusing him against which he had
sent complaint Ex.WW1/10 promptly to SHO PS Nand Nagri on
13.10.2006 itself. That complaint bears the seal of PS Nand Nagri
and it shown to have been received on 13.10.2006. Had the
LIR 5294/16 13/21
claimant resigned on 13.10.2006, he would not have filed complaint
Ex.WW1/10 against management on the same day.
17. In view of above discussion, it is held that the claimant had
neither resigned on 29.09.2006 nor on 13.10.2006. In fact, his
service was terminated by the management on 13.10.2006. No
notice in writing was given to him before terminating his service.
No notice pay and retrenchment compensation was tendered to him.
There is no allegation of misconduct and hence, there was no
question of chargesheet and domestic enquiry. In this way,
termination of service of the claimant by management on
13.10.2006 is illegal.
Issue No. 5:
18. Claimant deposed that he had started working with the
management on 10.04.2002. His that deposition has been cut to
size by ESI Card Ex.WW1/12 relied upon by himself. As per that
card, he had joined the management on 15.07.2004. To the same
effect is the evidence of MW1. So, the date of claimant joining the
management is taken as 15.07.2004 and not 10.04.2002. Ld. ARW
argued that the claimant is jobless since termination. On the other
hand, Ld. ARM argued that the claimant was skilled worker and is
working somewhere else after snapping of ties with the
management.
LIR 5294/16 14/21
19. Even if service of a workman has been terminated illegally,
that would not automatically lead to reinstatement and 100% back
wages as was held in Nehru Yuva Kendra Sangathan Vs. Union of
India & Ors. 2000 IV AD (Delhi) 709, Hon'ble Delhi High Court
dealt with the question of reinstatement and back wages and
observed in paragraphs 27 and 28 as under :
"27. We find from the decision of the
Supreme Court rendered in the 1970s and
1980s that reinstatement with back wages
was the norm in cases where the termination
of the services of the workman was held
inoperative. The decisions rendered in the
1990s, including the decision of the
Constitution Bench in the Punjab Land
Development and Reclamation Corporation
Ltd., Chandigarh seem to suggest that
compensation in lieu of reinstatement and
back wages is now the norm. In any case,
since we are bound to follow the decision of
the Constitution Bench, we, therefore,
conclude that reinstatement is not the
inevitable consequence of quashing an order
of termination; compensation can be
awarded in lieu of reinstatement and back
wages.
28. Considering the facts of this case, we
are persuaded to award compensation in lieu
of reinstatement and back wages to the
workman"
In Municipal Council, Sujanpur Vs. Surinder Kumar
2006 LLR 662, Hon'ble Supreme Court observed that the relief of
LIR 5294/16 15/21
reinstatement is not automatic but is in the discretion of the court.
In paragraph 16, it was observed as under :
"Apart from the aforementioned error of
law, in our considered opinion, the Labour
Court and consequently the High Court
completely misdirected themselves insofar as
they failed to take into consideration that
relief to be granted in terms of section 11A
of the said Act being discretionary in nature,
a Labour Court was required to consider the
facts of each case therefor. Only because
relief by way of reinstatement with full back
wages would be lawful, it would not mean
that the same would be granted
automatically".
In Vinod Kumar & others vs Salwan Public School &
others WP(c)5820/2011 dt.17.11.2014 Hon,ble Justice V.
Kameshwar Rao has held as under:
11.Having considered the rival submissions
of the counsels for the parties, I do not find
any infirmity in the order of the Labour
Court. It is a settled position of law that even
if termination has been held to be illegal,
reinstatement with full back wages is not to
be granted automatically. The Labour Court
is within its right to mould the relief by
granting a lumpsum compensation. In fact, I
note that the Labour Court has relied upon
three judgments propounding the law that
the Labour Court can mould a relief by
granting lump sum compensation; the
Labour Court is entitled to grant relief
LIR 5294/16 16/21
having regard to facts and circumstances of
each case.
12. Further, the Supreme Court in the
following judgments held as under:
(a) In the matter reported as Jaipur
Development Authority v. Ramsahai, (2006)
11 SCC 684, the court has stated:
"However, even assuming that there had
been a violation of Sections 25G and 25H
of the Act, but, the same by itself, in our
opinion, would not mean that the Labour
Court should have passed an award of
reinstatement with entire back wages. This
Court time and again has held that the
jurisdiction under Section 11A must be
exercised judiciously. The workman must be
employed by State within the meaning of
Article 12 of the Constitution of India,
having regard to the doctrine of public
employment. It is also required to recruit
employees in terms of the provisions of the
rules for recruitment framed by it. The
respondent had not regularly served the
appellant. The job was not of perennial nature. There was nothing to show that he, when his services were terminated any person who was junior to him in the same category, had been retained. His services were dispensed with as early as in 1987. It would not be proper to direct his reinstatement with back wages. We, therefore, are of the opinion that interest of justice would be subserved if instead and in place of reinstatement of his services, a sum of Rs 75,000 is awarded to the respondent by way of compensation as has been done by LIR 5294/16 17/21 this Court in a number of its judgments."
(b) In the matter reported as Nagar Mahapalika v. State of U.P., (2006) 5 SCC 127, the court has stated:
"23. Noncompliance with the provisions of Section 6N of the U.P. Industrial Disputes Act, although, may lead to the grant of a relief of reinstatement with full back wages and continuity of service in favour of the retrenched workmen, the same would not mean that such a relief is to be granted automatically or as a matter of course. 25 .....The appellant herein has clearly stated that the appointments of the respondents have been made in violation of the provisions of the Adhiniyam. An appointment made in violation of the provisions of the Adhiniyam is void. The same, however, although would not mean that the provisions of the Industrial Disputes Act are not required to be taken into consideration for the purpose of determination of the question as to whether the termination of workmen from services is legal or not but the same should have to be considered to be an important factor in the matter of grant of relief. The Municipal Corporation deals with public money. Appointments of the respondents were made for carrying out the work of assessment. Such assessments are done periodically. Their services, thus, should not have been directed to be continued despite the requirements therefor having come to an end. It, therefore, in our considered view, is not a case where the relief of reinstatement LIR 5294/16 18/21 should have been granted."
(c) In the matter reported as Talwara Coop. Credit and Service Society Ltd. v. Sushil Kumar, (2008) 9 SCC 486, the court has stated:
"8. Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section 11A of the Industrial Disputes Act, 1947 are required to strike a balance in a situation of this nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment viz. whether the appointment had been made in accordance with the statutory rules so far as a public sector undertaking is concerned, etc., should be taken into consideration."
(d) In the matter reported as Jagbir Singh v. Haryana State Agriculture Mktg. Board, (2009) 15 SCC 327, the court has stated :
"7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. ...LIR 5294/16 19/21
14. An order of retrenchment passed in violation of Section 25F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee."
20. It is the case of the claimant that he was working as electrician with the management. So, he was a skilled worker. He did not pinpoint any vehicle agency, electricity shop or business house or any other business concern visited in connection with re employment. His testimony of being idle is general and vague. Such skilled labourer would have definitely got job of the same status and salary if he had tried seriously. He had worked with the management from 15.07.2004 to 13.10.2006 i.e. for about two years and three months at the last drawn salary of Rs.4,230/ per month. Taking into account all these facts, a lumpsum compensation of Rs.60,000/ (Rupees Sixty Thousands Only) is granted to the claimant. The management is directed to pay the said amount to the claimant within a month from the date of publication of the award failing which it shall be liable to pay interest @ 9 per cent per annum from today till realization. Reference is answered accordingly. Award is passed accordingly.
LIR 5294/16 20/2121. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication. File be consigned to Record Room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 23.07.2016. POLCXVII/KKD, DELHI.
LIR 5294/16 21/21