Delhi District Court
Sh. Prem Ranjan And Others vs M/S Sds Securities Security (Private) ... on 26 February, 2008
ID No. 365/2006/2004
1
IN THE COURT OF SH. S.K. SARVARIA
PRESIDING OFFICER, LABOUR COURT NO. XII,
KARKARDOOMA COURTS, DELHI.
ID No. 365/2006/2004
BETWEEN
Sh. Prem Ranjan and others,
C/o General Mazdoor Trade Union,
Opposite Labour Office,
Giri Nagar,
Kalkaji,
New Delhi - 110019. ...............WORKMAN
AND
M/s SDS Securities Security (Private) Ltd.,
AB 14 - B, Safdarjung Market,
Behind Kamal Cinema,
Safdarjang Enclave,
New Delhi. .........MANAGEMENT
Date of institution: 27.11.2004
Date of Arguments: 31.01.2008
Date of Award: 26.02.2008
AWARD
1.The Industrial Dispute between the management of M/s SDS Securities Security (Private) Ltd., AB 14 - B, Safdarjung Market, Behind Kamal Cinema, Safdarjang Enclave, New Delhi and its workman Sh. Prem ID No. 365/2006/2004 2 Ranjan and others, C/o General Mazdoor Trade Union, Opposite Labour Office, Giri Nagar, Kalkaji, New Delhi - 110019 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 (981)/2004/Lab. 6007 - 11 dated 04.10.2004 with the following terms of reference:
"Whether the services of Sh. Prem Ranjan and Sh. Nagnarain Rai, have been terminated illegally and/or unjustifiably by the management and if so, to what relief is/are, he/they entitled, and what directions are necessary in this respect? "
2. The notice of the reference was issued to the workmen who filed joint statement of claim alleging that they were employed with the management with the following particular of the service: --
Name of Post Salary Due salary Date of
workman appointment
Prem Ranjan Security Guard Rs.3,254/- 01.12.2003 to 18.09.1995
10.12.2003
Nagnarain Rai Security Guard Rs.3,254/- 01.12.2003 to 28.11.1994
10.12.2003
ID No. 365/2006/2004
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3. The workman did not give any occasion for complaint to the management during their service. But the management did not provide them with the legal facilities like appointment letter, identity card, leave book, weekly and festive holidays, overtime, bonus, wage slips etc. The management, without giving any transfer order, used to work from the workmen by sending them at their unit at 82A, Udyog Vihar, Phase-4 Gurgaon, Haryana. But the management used to pay monthly wages to the workmen from their head office. The three workplaces belong to the same management. By doing these activities management used to make manipulation in the service record of the workmen.
4. The workmen demanded legal facilities from the management orally several times but the management did not pay any attention to it and instead it tried to create difficulties in different manner for the workmen with revengeful attitude. The management tried to force the workmen to give resignation and on refusal of the workmen the management got annoyed and without issuing any transfer order, without issuing any notice or chargesheet, terminated the services of the workmen on 10/12/2003 by adopting and anti labour policy.
ID No. 365/2006/2004 4
5. The workmen, several times, went to the management to demand the duty but the management did not acceded to it.. On 23/12/2003 a demand notice was sent by registered AD and UPC to the management demanding the service but the management did not reply the same despite service of the notice. The statement of claim was filed before Conciliation Officer but due to noncooperation of the management in the conciliation proceedings failed. Hence, the reference. The workmen are unemployed from the date of termination of their services.
6. The workmen have prayed for their reinstatement to the job, continuity of service and fullback wages as per the amendments and increase in the wages done by the Delhi Government from time to time.
7. The management contested the joint claim of the workmen and has filed a written statement. The management admitted the relationship of workmen and employer between the parties. According to the management the workmen were working as Security Guard with the management and were getting salary as per Minimum Wages Act, 1948.
ID No. 365/2006/2004 5 The case of the management is that the services of workmen were never terminated by the management. It has submitted that the workmen are guilty of violating the provisions of law because they without any pre- intimation or pre-sanctioned leave, absented from their duty from 11/12/2004. The management gave so many opportunities to them to join their duties but they failed to do so and rather they have taken full and final dues from the management by their own willingness. The management has also submitted that it has no objection if the workmen come and perform their duties. The management has denied the other facts stated in the joint statement of claim and has prayed for its dismissal.
8. In the joint rejoinder to the written statement the workmen have denied the averments made in the written statement including the allegation of the management that they have taken full and final dues or enchanted from duty. The workmen have reaffirmed the facts stated in the joint statement of claim. The controversies between the parties in the pleadings resulted into framing of the following issues by the tribunal on 3/1/2006: --
ID No. 365/2006/2004 6 ISSUES
1. Whether there did not exist any industrial dispute under the ID Act?
2. Whether the workmen abandoned/absented unauthorisedly of their own after taking full and final dues with effect from 11/12/2004?
3. As per terms of reference.
9. In support of the case the workmen WW1 Shri Prem Ranjan and WW2 Shri Nag Narain have filed their respective affidavit in evidence, they were cross-examined before the learned local commissioner appointed by this tribunal, after which the workmen closed their evidence. The management has examined two witnesses namely MW1 Shri M. A. Zinna its Personal Manager and filed his affidavit in evidence. He was also cross-examined before the learned local commissioner. The management also examined MW2 Shri M. E. Matthews, but has not filed his affidavit in evidence and the management just tendered him for cross examination and he was cross-examined before this tribunal after which the management closed its evidence.
10. Both parties have filed written arguments.
ID No. 365/2006/2004 7
11. I have gone through the written arguments filed on behalf of the parties, the record of the case and relevant provisions of law. My finding on the issues framed are as under: --
ISSUE NO. 1
12. The case of the management is that no industrial dispute exists between the parties as there is no cause of action and the workmen who themselves have absented from duty. This plea of the management is not tenable as the disputes between the parties are essentially disputes between workmen and employer wiz whether the services of workmen were terminated illegally or the workman themselves absented from duty and so it falls within the definition of industrial dispute as given in the section 2(k) of the Act. Therefore, the contention of the management that no industrial dispute exists between the parties is not correct. The issue is accordingly decided in favour of the workmen and again the management.
ID No. 365/2006/2004 8 ISSUE NO. 2
13. The case of the workmen is that on demand of legal facilities by them from time to time the management be came annoyed and tried to force them to resign and when they did not agree the management terminated their services on 10/12/2003. The management, on the other hand, has alleged that the workmen are absent from duty and have received their full and final dues with effect from 11/12/2004 and despite so many opportunities given to them to join duty they have failed to do so. The burden to prove this issue was upon the management but the management has not led any convincing evidence to show that on 11/12/2004 or afterwards it has issued any notice to the workmen calling upon them to join duty or has issued any show cause notice regarding the workmen remaining absent from duty or has sent any of its employees to the place of the workmen asking them to join duty. Therefore, the plea of the management that the workmen absented from duty with effect from 11/12/2004 is not proved on record. The management has not even produce the attendance record of the workmen to show that they were being marked absent in the attendance ID No. 365/2006/2004 9 register. It has also not proved that the workman had received their full and final dues. Therefore, the Issue No.2is also decided in favour of the workmen and again the management.
ISSUE NO. 3
14. The termination of services of any workmen by the management on any ground whatsoever other than a punitive action and the excluded categories (a) to (c) of S. 2(oo) of the Act amounts to retrenchment of the workmen. If the workmen had completed one year of the continuous service on the date of termination then the management is required to comply with the provisions of Section 25F of the Act by payment of the requisite retrenchment compensation and one months notice pay in lieu thereof etc prior to retrenchment of the workman. Section 25 B. So far is relevant defines one year's continuous service as 240 days service in an English Calendar Year.
15. In this case there is no dispute between the parties that as on 10/12/2003 both the workmen had completed continuous service of ID No. 365/2006/2004 10 more than one year with the management. The plea of the management that the workmen absented from duty with effect from 11/12/2004 is not proved on record in the light of my findings on Issue No.2, above. This plea in itself shows the implied admission of the management regarding noncompliance of the provisions of Section 25 F of the Act rendering the termination of the services of the workmen by management on 10/12/2004, illegal.
16. The question now rises what relief should be granted to the workmen against the management. 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 back to a ID No. 365/2006/2004 11 situation which prevailed many years ago, namely, when the workman was retrenched."
17. In Lords Homeopathic Laboratories private Ltd. Vs. Ms. Lissi Unnikunju and others 2006 IV AD (DELHI) 739 (DB) the Division Bench of our Hon'ble High Court made the following observations:
"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 compensation instead of reinstatement ID No. 365/2006/2004 12 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"
18. In the present case the management has been able to prove through the evidence of two witnesses and the documents Ex.MW1/2, Ex.MW1/2A and Ex.MW1/2B that the workmen were employed with another Services M/S. SL V Security Services Private Ltd, Gurgaon. Although the argument is raised on behalf of the workmen that the documents were not put to the workmen concerned during their cross- examination so should not be believed but I do not accept this argument, as though it would have been better if the documents were put to the workman in the cross-examination, but not only the personal manager of ID No. 365/2006/2004 13 the management MW1 Shri M.A. Zinna but also MW2 Shri M.E. Mathews from the said M/S. SL V Security Services Private Ltd, Gurgaon has testified to the fact that these two workmen had worked there. Therefore, I believe the evidence of management in this regard. But this evidence of management does not wipe out its liability completely as the date of termination of the services of the workmen 10/12/2003 and the said evidence only proves the gainful employment of the workman Shri Nag Narayan from 01/02/2004 to 2/5/2004 and that of the workman Shri Prem Ranjan from 24/2/2004 to 30/6/2004 as admitted by MW2 in the cross-examination. Therefore, keeping in view overall facts and circumstances of the case the workmen, in my view, are entitled to a lump-sum compensation in the sum of the Rs. 35,000/-- each from the management in lieu of reinstatement of the job, continuity of service and back wages. However, out of this amount of compensation the management shall be entitled to deduct 50% of the fee of Rs 1000/-- paid by to the learned local commissioner for the purpose of recording evidence of the parties. Therefore, after deducting a sum of Rs 250/- each from the said amount the workmen are entitled to a lump-sum compensation in the sum of Rs 34,750/-- each from the ID No. 365/2006/2004 14 management. The issue is accordingly decided in favour of the workmen and against the management.
19. In the light of my findings of the above issues the workmen are entitled to a lump-sum compensation in the sum of Rs 34,750/-- each from the management in lieu of reinstatement of the job, continuity of service and back wages. If the said amount is not paid by the management within two months of publication of the award, the workmen shall be entitled to recover the same along with simple interest at the rate of 9% per annum from the date of this award till the recovery of the said amount. 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 26th day of February, 2008 (S.K. SARVARIA) Presiding Officer Labour Court No. XII Karkardooma Courts, Delhi.