Delhi District Court
Sh. Ram Milan vs M/S Salwan Montessori School on 20 July, 2007
ID No. 179/2006/2004
1
IN THE COURT OF SH. S.K. SARVARIA,
PRESIDING OFFICER LABOUR COURT, No. XII, KARKARDOOMA, DELHI
ID No.179/2006/2004
BETWEEN
Sh. Ram Milan,
C/o Awdesh Singh, 796,
Pocket Number - I,
Paschim Puri,
New Delhi - 110063 .........Workman.
AND
1. M/s Salwan Montessori School,
Rajender Nagar,
New Delhi - 110060
2. M/s Salwan Public School,
Old Rajender Nagar,
New Delhi - 110060.
3. Salwan Education Trust,
Marina Arcade, Connaught Circus,
New Delhi - 110001. .........Managements.
ID No. 179/2006/2004
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Date of institution: 01.3.2004
Date of argument: 17.07.2007
Date of judgment: 20.07.2007
AWARD
1. The Industrial Dispute between the management of 1) M/s Salwan Montessori
School, Rajender Nagar, New Delhi - 110060, 2) M/s Salwan Public School, Old
Rajender Nagar, New Delhi - 110060, 3) Salwan Education Trust, Marina
Arcade, Connaught Circus, New Delhi - 110001 and its workman Sh. Ram
Milan, C/o Awdesh Singh, 796, Pocket Number - I, Paschim Puri, New Delhi -
110063 was referred by Secretary (Labour), Government of The National Capital
Territory of Delhi for adjudication in exercise of powers conferred by section 10
(1) (c), 10 (1) (d) and 12 (5) of the Industrial Dispute Act 1947 (in short Act) vide
his Order No. F.24 (3998)/2003-Lab./2894 - 2900 dated 01.03.2004 with the
following terms of reference :
Whether the services of Sh. Ram Milan, S/o Sh. Ram
Bharose have been terminated illegally and / or unjustifiably
by the management and if so, to what relief is he entitled and
ID No. 179/2006/2004
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what directions are necessary in this respect?
2. Notice of reference was issued to the workman who filed statement of
claim alleging in brief that he was working with the managements as Chokidar
since 04.08.1996 on the last drawn salary of Rs.2800/- per month. He was
working with management No. 1 school and his provident fund used to be
deducted in the records of management No.2 and management No.3 is a trust,
who is running several schools in Delhi, Gurgaon and Uttar Pradesh including
management No. 1 and 2.
3. On 14.3.03 the services of the workman were terminated by
managements in defiance of service conditions, without issuing any notice,
without giving any reason, without giving opportunity of being heard to the
workman. The termination of the services of the workman by change in the
service condition is illegal. No inquiry was conducted against the workman nor
any chargesheet was given nor any permission under Delhi School Education
Act was obtained from the Director. Therefore, the termination of the services of
the workman is illegal.
ID No. 179/2006/2004
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4. The workman tried to get duty with the management with the help of the
Labour Department but the management did not cooperate. The claim was filed
by the workman before Conciliation Officer but the management did not
cooperate so the conciliation proceedings failed so this dispute was referred for
adjudication before the Labour Court. The workman is unemployed and could
not get any job despite best efforts.
5. The workman has prayed for reinstatement to the job, continuity of
service along with 18% interest.
6. The management No. 2 and 3 contested the claim of the workman and
filed joint written statement. Although the date of appointment as alleged by the
workman is disputed by the management Nos. 2 and 3 but the management
Nos. 2 and 3 admitted the relationship of workman and employer between the
parties. They submitted that the workman stopped reporting for duty w.e.f.
14.3.03. These management further submitted that the workman has filed a
frivolous and mischievous statement of claim before conciliation officer with
malafide intention and ulterior motives to extort money from the managements
on behest of his trade union friends. If terms and conditions of workman is
ID No. 179/2006/2004
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covered under the provisions of the Delhi School Education Act 1973, then the
present alleged industrial dispute is not maintainable and liable to be rejected.
7. The management No.1 filed separate written statement denying the
relationship of master and servant between the parties and due to this reason
the management No.1 has denied the other facts stated in the statement of
claim and has prayed for dismissal of the claim of the workman.
8. In the rejoinder the workman denied the averments made in the written
statement of management Nos. 1, 2 and 3 and has reaffirm the facts stated in
the statement of claim.
9. The controversies between the parties in the pleadings lead to framing
of the following issues by the tribunal on 28.10.2005:-
1. Whether the claim is not maintainable and is bad as per preliminary
objection of the respondents?
2. Whether there is relationship of employer and employee between the claimant and respondent No.1?
ID No. 179/2006/2004 6
3. As per terms of reference.
4. Relief.
10. In support of his case the workman filed affidavit in evidence, he was cross examined before learned local commissioner appointed by this Tribunal, after which he closed his evidence.
11. The managements have examined only one witness MW1 Sh. Deepak Kumar Datta Office Superintendent and filed his affidavit in evidence. He, like workman was also cross examined before learned local commissioner appointed by this tribunal, after which the managements also closed their evidence.
12. Both parties filed written arguments and have addressed oral arguments also.
13. I have heard learned authorized representatives of the parties and have gone through the written arguments, record of the case, relevant provisions of law carefully my findings on the issues framed are as under: -
ID No. 179/2006/2004 7 ISSUE NO. 1
14. The preliminary objection taken in the written statement by managements is that the service conditions of workman are governed by the Delhi School Education Act 1973 so the raising of the dispute under the Act is not maintainable and bad in law. The managements have not produced the terms and condition of employment of the workman to show that the same are governed by Delhi School Education Act 1973. Therefore, this plea of the managements is not tenable.
15. Another preliminary objection taken by management No. 2 and 3 is that workman himself of his own accord stopped reporting for duty. But this plea of the management No. 2 and 3 is vague plea far short of treating the workman to have abandoned the job. The management No. 2 and 3 have not specified from which date the workman stopped reporting for duty or any show cause notice was issued to him, calling upon him to report for duty or any disciplinary proceedings were taken against him. Further the witness of the management MW1 in the cross examination has stated that when they received notice, he came to know that the managements have terminated the services of the ID No. 179/2006/2004 8 workman. Therefore, the plea of the management No. 2 and 3 that the workman himself stopped reporting for duty is not proved on record.
16. The next preliminary objection taken by the managements in the written statement is that the industrial dispute is not maintainable because an industrial dispute cannot be said to exist until and unless a demand is made by the workman on the managements and it has been rejected by the managements. Therefore, filing of statement of claim before conciliation without raising a demand does not show that industrial dispute existed between the parties. This plea of the managements is also not tenable in the light of authority Shambu Nath Goyal Vs. Bank of Baroda, Jullundur 1971 FLR (36) SC 195 relied upon by learned authorized representative of the workmanwherein following observations were made:
".........The term industrial dispute connotes a real and substantial difference having some element of presidency and continuity till resolved and likely if not adjusted to endanger the industrial peace of the under taking or the community. When parties are at variance and the dispute of difference is connected with the employment, or non - employment or the terms of employment or with the conditions of labour there comes into existence an industrial ID No. 179/2006/2004 9 dispute. To read into definition the requirement of written demand for bringing into existence an industrial dispute would tantamount to re - writing the section."
17. Filing of statement of claim before Conciliation Officer in itself is raising demand against the managements, therefore, this objection of the managements is also liable to be rejected. The management No. 2 and 3 have also raised the preliminary objection that workman is gainfully employed so the industrial dispute is not maintainable against the managements. This plea of the managements is nullified by the statement of witness of the management MW1, who in the cross examination has stated that he did not now if the workman was unemployed after 14.3.03, he also admitted that he did not have any document to show the employment of the workman.
18. The last preliminary objection taken by management Nos. 2 and 3 and also by management No. 1 is that contents of statement of claim are not verified by the workman and the same is liable to be dismissed. This plea of the managements is also liable to be rejected as no provision of law is shown which requires rejection of claim of the workman on account of its non verification. The ID No. 179/2006/2004 10 statement of claim is duly signed by the workman, who has also filed affidavit in evidence in support of his case, therefore, if there is any procedural lapse on the part of the workman in the verification of the statement of claim, there is no need for taking too technical view with regard to procedural aspect, to dismiss the claim petition.
19. As regard the preliminary objection No. 2 of management No.1 regarding disputed relationship of workman and employer between the parties, since a separate issue has been framed on this aspect the same shall be dealt with in relevant issue No. 2.
20. In view of the above issue No. 1 is decided in favour of the workman and against the management.
ISSUE NO. 2
21. The workman has alleged that he was employed with the managements. The management No. 3 being a trust is running two schools ID No. 179/2006/2004 11 being management No. 1 and management No. 2 and some other school also. The management No. 2 and 3 have not disputed the existence of relationship of employee and employer between the parties but the management No. 1 in the separate written statement has disputed this fact. The workman in his evidence has alleged that he was employed with the managements and the witness of managements in the cross examination has stated that the Provident Fund Slip Ex.WW1/4 and Ex.WW1/5 and the identity card Ex.WW1/2 were issued by management No.2 and the identity card was signed by the principal. Therefore the document proved by the workman and the authenticity of which is admitted impliedly by MW1 in the cross examination shows that the workman was employed with management No.2 and this relationship is also admitted by management No. 2 and 3 in the joint written statement. The case of the workman is that his Provident Fund used to be deducted by management No.2 who used to pay salary to him but work used to be taken from him by management No. 1. As the management No.3 is trust and is running both the schools, the workman whose Provident Fund used to be deducted by management No.2 and salary used to be given by management No.2 shall be deemed to be employee of management No. 2 and 3 irrespective of the fact, even if, for some times he was asked to do work with management No.1 school, ID No. 179/2006/2004 12 as a stop gap adjustment. Therefore, though the existence of relationship of employer and employee existed between management Nos. 2 and 3 and the workman there did not exist any such relationship between the workman and management No.1. The issue is accordingly decided in favour of management No.1 and against the workman.
ISSUE NO.3
22. The workman has alleged that he was employed with the management w.e.f. 04.8.96 as Chowkidar on the last drawn wages of Rs.2800/-. The management No. 2 and 3 has disputed that the workman joined on 04.8.96 but have not raised any any specific plea with regard to a monthly wages pleaded by the workman, which shall be deemed admitted by management No. 2 and 3, therefore, it is proved on record that the workman was working with management No. 2 and 3 on monthly wages of Rs.2800/-. In the arguments raised on behalf of the management, the question of 240 days of service within one year is raised in the written statement, the workman specifically pleaded that he joined the services of the management on 04.8.1996 and his services were terminated on 14.3.2003. The witness of the management has stated in the ID No. 179/2006/2004 13 cross examination that he did not know whether identity card was issued to the workman by management No. 2 on 04.8.96. The identity card Ex.WW1/2 and WW1/3 does not show the date of appointment or date of issue of identity card to the workman. The Provident Fund Slip Ex.WW1/4 and Ex.WW1/5 show that these pertain to the year 1990 - 2000 and 2001 - 2002 and raises the presumption that the workman not only was a regular employee but has worked with the management for more than one year continuously within the mean of Section 25B read with Section 25F of the Act making it essential on the part of the management to comply the provisions of Section 25F of the Act prior to retrenchment / termination of the services of the workman. The witness of management MW1 has stated in the cross examination that he did not know whether any compensation, notice pay, retrenchment compensation was paid to the workman before terminating his services by the management, therefore, the evidence of MW1 has also not rebutted the case of the workman that before terminating his services the provisions of Section 25F were not complied nor any show cause notice was issued to him.
23. In the light of my findings of above issue No.2, it is clear that it is not a case where the workman stopped coming to duty but it is a case where the ID No. 179/2006/2004 14 services of the workman were terminated by the management who having not complied with provision of Section 25F, the termination of the services of the workman by management No. 2 and 3 is illegal and unjustified. Therefore, there is no need to go into other arguments raised on behalf of the workman and the authorities relied with regard to question of Section 2(oo)(bb) of the Act or Section 33(1)a read with Section 33(2) a of the Act in the written arguments. The question now arises what relief should be granted to the workman against the management.
24. In U.P. State Brass ware Corporation Ltd. and others Vs. Uday Narain Pandey (2006) 1 SCC 479 the Apex Court has made the following observations:
"Before adverting to the decision relied upon by the learned counsel for the parties, we may observe that although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realising that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and /or for a period that was spent unproductively as a result whereof the employer would be compelled to go ID No. 179/2006/2004 15 back to a situation which prevailed many years ago, namely, when the workman was retrenched."
25. In Lords Homeopathic Laboratories private Ltd. Vs. Ms. Lissi Unnikunju and others 2006 IV AD (Delhi) 739 (DB) our Hon'ble High Court the following observations were made:
"In a large number of cases, this court has granted compensation instead of reinstatement vide Model School for Mentally Deficient Child Vs. Mukh Ram Prasad Maurya and others 109 (2004) DLT 292, Suraj Pal Singh And others Vs. P.O, Labour Court and another 2002 v. AD (Delhi) 706; Harsha Tractors Ltd. Vs. Secretary (Labour) and others 2001 III AD (Delhi) 746; Sh. Pal Singh Vs. National Thermal Power Corporation Ltd. 2002 111 AD (Delhi) 1059; Sain Steel Products Vs. Naipal Singh and others 2001 LLR 566; R. Mugum and others Vs. The P.O. Labour Court and another 2000 VI AD (Delhi) and State Bank of India Vs. J.R.Surma 2002 VII AD (Delhi) 325.
Whether compensation should be awarded for reinstatement is in the Tribunal's discretion vide United Commerce Bank Ltd. Vs. Secretary, U.P. Bank Employees Union and others AIR 1953 SC 437. Various factors have to be seen as to whether reinstatement or compensation should be granted vide The management of Bharat Kala Kendra Vs. R.K. Baveja, 1980 (40) FLR 244 (Delhi).
In Hindustan Steel Ltd. Vs. A.K. Roy, AIR 1970 SC 1401, the Supreme Court observed (vide paragraph 14): - "The Tribunal, however, has the discretion to award ID No. 179/2006/2004 16 compensation instead of reinstatement if the circumstances of a particular case are unusual or exceptional."
This view was followed by a Division Bench of this Court in Jagat Singh Vs. Estate Officer 2002 V AD (Delhi) 713. The same view was taken in Rolston John Vs. CGIT 1995 Supp. (4) SCC 548; DTC Vs. Presiding Officer 2000 LLR 136;
Nehru Yuva Kendra Vs. UOI 2000 IV AD (Delhi) 709; A.K. Chakraborty Vs. Saraswadpur Tea Company Ltd. (1982) 2 SCC 328 etc. In Employers, Management of Central P&D Inst. Ltd. Vs. UOI, AIR 2005 SC 633, the Supreme Court observed that it is not always mandatory to order reinstatement after holding the termination illegal and instead compensation can be granted. The same view was taken by a Division Bench of Delhi High Court in Pramod Kumar Vs. Presiding Officer, 123 (2005) DLT 509"
26. In the light of the above authorities and keeping in view the fact that the services of the workman were terminated more than 4 years ago and it is most unlikely that the management has not employed any person by now during the intervening period or the post is still vacant with the management also keeping in view the wages of the workman and overall facts and circumstances of the case and the above authorities, the workman in view is entitled to lump sum compensation in the sum of Rs. 55,000/- from the management No.2 and 3, in lieu of reinstatement to the job continuity of service and back wages. Out of the ID No. 179/2006/2004 17 amount of compensation the management shall be entitled to deduct 50% of the fee of the learned local commissioner given by the management. The managements have paid the fee of Rs.1,000/- to learned local commissioner and are entitled to deduct Rs.500/- out of this amount and workman shall be entitled to the balance amount of Rs. 54,500/- from the management Nos. 2 and
3.
27. The issue is accordingly decided in favour of the workman and against the management No. 2 and 3. The workman, however, is not entitled to anything against management No.1.
ISSUE NO. 4 RELIEF
28. In the light of my findings on the above issues the workman is entitled to a lump sum compensation in the sum of Rs. 54,500/- from management No. 2 and 3. In case the said amount is not paid by the management Nos. 2 and 3, within 2 months from publication of the award, the the workman shall be entitled to recover the same alongwith simple interest @9% per annum from the date of award till recovery of the said amount. The workman is not entitled to any relief ID No. 179/2006/2004 18 against the management No.1. The reference is answered accordingly. The copies of the award be sent to learned Secretary (Labour), Government of National Capital Territory of Delhi. The award be also sent to the server (www.delhicourts.nic.in). The file be consigned to the record room.
Announced in Open Court on this
20th day of March 2007 (S.K. SARVARIA)
Presiding Officer Labour Court No.
Karkardooma Courts, Delhi.