Delhi District Court
Workman vs . on 14 July, 2023
OLD CASE
IN THE COURT OF SH. AJAY GOEL:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I,
ROUSE AVENUE DISTRICT COURTS, NEW DELHI,
LIR NO. 6818/2016
Workman
Sh. Ravinder Raghav & 29 ors.
As represented by
Hotel Mazdoor Union (Regd.)
C-204, Ashok Hotel Staff Quarters,
New Delhi.
Vs.
The Management of
The Management of
M/s Hotel Diplomat
9, Sardar Patel Marg,
New Delhi.
Date of Institution : 03.10.2007
Date of presentation : 16.03.2023
before this court
Date of Arguments : 05.07.2023
Date of Award : 14.07.2023
AWARD
1.Vide this judgment, I shall dispose of complaint U/s 33-A of the Industrial Disputes Act, 1947 filed on behalf of workman. In the complaint, it is averred that management was employing the workmen named above in different categories i.e. Bill Clerk, Steward/Waiters, Cooks, Asst. Cooks, Pantry LIR NO. 6818-16 Page 1 of 17 Men, Helpers, Sweepers etc. to run the business of 4 Star Hotel for the last several years. It is stated that management is running a hotel in the name and style of Hotel Diplomat in New Delhi and is duly approved by department of Tourism, Govt. of India.
2. It is further pleaded that on or before 04.05.2007, the management was employing about 58 workmen to run the hotel, out of 58 workmen of hotel, 20 workmen were working in multi cuisine kitchen as Cooks, Asst. Cooks, Helpers, Pantry men etc. and 9 workmen were working as waiters in the restaurant Hyde Park which is an integral part of the hotel. It is stated that services of the staff were interchangeable in other department of hotel as per appointment letter and one workman Ravinder Raghav was working as bill clerk for preparing food and beverage bills of entire hotel.
3. It is stated that all the workers of hotel including the workmen are members of Hotel Mazdoor Union and had been getting wages benefits and other facilities as per wage settlements entered into between Hotel Mazdoor Union and management from time to time and last long terms wage settlement was entered into on 08.07.1997 which expired on 31.03.2000. It is stated that after the expiry of above settlement, Union served a fresh charter of demands dated 15.04.2000 upon the management and other parties to said settlement on behalf of workman as per the past prevailing practice and management did not consider the demands of workmen despite repeated request and the workmen after long LIR NO. 6818-16 Page 2 of 17 discussions, which was used as a pretext by the management to delay the demand raised their case before Conciliation and on the failure of conciliation proceeding, the demand case has been referred for adjudication before the Court.
4. It was also stated that due to filing of of above case, the management got prejudice and threatened the workmen of termination of services. It is also stated that management threatened the workmen either to settle their accounts with management or face the consequences of closing of restaurant Hyde Park. It is also stated that workman filed complaints against the management for threatening of raising the Industrial Disputes pending before the Hon'ble Court U/s 2(a) of I.D. Act. It is stated that management materialized the above stated threats on 04.05.2007, when it refused duty to 30 workmen named in the present complaint working the kitchen of Hotel and Hyde Park restaurant out of total 58 workmen. It is stated that at the time of forcible removal of some workers on duty and refusal of duty to others, the management did not issue any notice nor made any payment of their dues. It is stated that workmen being aggrieved made a complaint through Union to Labour Department on 04.05.2000 and on complaint, Labour Inspectors deputed and visited the establishment, but there to in front of labour inspectors, the general manager refused to allow the workmen on duty.
5. It is stated that the workman received a notice dated 03.05.2007 sent by the management alongwith bankers cheques in regard to their termination of services w.e.f.
LIR NO. 6818-16 Page 3 of 1705.05.2007 on the ground of closing the Hyde Park Restaurant due to alleged financial losses. It is stated that workmen received the said cheques under protest without prejudice to their right and claim and in their reply, the workmen submitted that closure of restaurant and kitchen of hotel is sham and camouflage and in fact, it is lock out and Hyde Park Restaurant and kitchen of the hotel were not separate and independent unit and is unseverable, therefore, the termination of services of these workmen under the garb of closure is illegal, unjustified and malafide and an act of unfair labour practice.
6. It was also stated that management has not served 60 days notice to appropriate authority mandatory under Section 25-FFA of I.D. Act. It was also stated that management has not closed the business and is still serving the food, coffee, snacks, beverage to the guest of hotel and it is renovating the restaurant and kitchen and there is every possibility to run the restaurant and kitchen in its original or other form. It was also stated that management has terminated the services of the workman during the pendency of Industrial Dispute without complying with the provisions of section 33 of I.D. Act under the garb of closure of restaurant and kitchen on the ground of financial losses, hence, termination of services are illegal, wrongful, unjustified and malafide and act of unfair labour practice and workmen are entitled for reinstatement in service with continuity and full back wages and other consequential benefits. Hence, present complaint was filed by workmen against the management.
LIR NO. 6818-16 Page 4 of 177. Reply was filed by the management the claim of workmen, wherein the management has taken objections that in the list attached to the complaint, the names of 30 ex- employees are given, out of these 30 employees, 28 employees have already settled their disputes and differences with the management. It was further stated that workmen entered into a settlement with management before the Conciliation Officer on 29.10.2007 wherein they have categorically stated that they have settled all their disputes and the said settlement was duly registered vide registration No. ALC/NDD/2007/1361-1362. It is stated that another settlement was entered into between the management and workmen on 31.10.2007 on same terms and conditions and workmen have settled their disputes under section 18 III B, thus the entire dispute stands duly settled and these settlements were having being entered into by the majority of workmen are binding on all the workmen and in view of this settlement, the complaint under section 33-A is not maintainable. It was stated that management has closed the restaurant 'Hyde Park' complying with provisions of I.D. Act and workmen and workmen had accepted the compensation thus section 33-A of I.D. Act is not applicable to the abovesaid Closure and termination of an employee as a result of closure does not attract Section 33 A of the I. D. Act.
8. On merits, it was stated that management hotel is a very small hotel having only 25 rooms and in fact the management was running restaurant under the name and style of Park Avenue observing normal restaurant working hours. It was LIR NO. 6818-16 Page 5 of 17 stated that restaurant went on suffering huge financial losses consequently the management had to close this restaurant after complying with provisions of I.D. Act and services of employees were terminated after paying them the compensation in terms of I.D. Act. It was also stated that Hyde Park Restaurant was not an integral part of the hotel and it was being run independently mainly or primarily to cater to outside customers. It was also stated that workman Ravinder Raghav was working only as a bill clerk in the restaurant and he was preparing the bills of customers visiting the restaurant and paying their bills for the food enjoyed by them in the restaurant and he was the junior most bill clerk whose services were terminated after paying him compensation for closure which is calculated on the basis of compensation provided U/s 25 F of I.D. Act. It was stated that they have already filed 28 affidavits with settlement arrived U/s 18 (3) B of the I.D. Act which is binding on all the employees.
9. It was also stated that management had given notices to workmen which they have received on 03.05.2007 for closing the restaurant and tendering the compensation w.e.f. 05.05.2007 and these notices were received by the workman 04.05.2007. It was also stated that workmen concerned have encash their banker's cheques and it is the prerogative of the management to close the restaurant, if it was suffering continuous losses and management was at liberty to run a hotel in an economically viable manner. The other contents of claim LIR NO. 6818-16 Page 6 of 17 were denied and it was prayed that claim of workmen may be dismissed.
10. Rejoinder was filed by workmen, wherein all objections raised in the preliminary objections were denied and the contentions made in the complaint are reiterated and affirmed.
11. On the basis of pleadings of the parties, following issues were framed by Ld. Predecessor vide order dated 17.09.2009:-
(1) Whether present complaint U/s 33 A I.D. is not maintainable in view of the fact that 28 out of 30 employees have settled the matter with the management?
(2) Whether management has closed part of the establishment in which 30 workman had been working?
(3) Whether services of the workman have been illegally terminated as alleged by the workman, if so, its effect?
(4) Relief.
12. Workman in support of their case has produced Sh.
Ravinder Raghav as WW-1. Sh. Prakash was examined as WW-2. Sh. Krishan Kumar was examined as WW-3 Thereafter, W. E. was closed by AR for workmen.
13. To prove its case, the management examined one Sh.
Shyam Sunder as MW-1. Sh. Shailesh Kumar Jha was examined as MW-2 and thereafter, M. E. was closed.
14. ARGUMENT OF WORKMEN:
LIR NO. 6818-16 Page 7 of 1715. It is argued on behalf of workmen that on or before 04.05.2007, the management was employing about 58 workmen to run the hotel, out of 58 workmen of hotel, 20 workmen were working in multi cuisine kitchen as Cooks, Asst. Cooks, Helpers, Pantry men etc. and 9 workmen were working as waiters in the restaurant Hyde Park which is an integral part of the hotel. It is argued that all the workers of hotel including the workmen are members of Hotel Mazdoor Union and had been getting wages benefits and other facilities as per wage settlements entered into between Hotel Mazdoor Union and management from time to time and last long terms wage settlement was entered into on 08.07.1997 which expired on 31.03.2000. It is further argued that after the expiry of above settlement, Union served a fresh charter of demands dated 15.04.2000 upon the management and other parties to said settlement on behalf of workman as per the past prevailing practice and management did not consider the demands of workmen despite repeated request and the workmen after long discussions, which was used as a pretext by the management to delay the demand raised their case before Conciliation and on the failure of conciliation proceeding, the demand case has been referred for adjudication before the Court.
16. It is also the case of workmen that due to raising of above case, the management got prejudice and threatened the workmen of termination of services and further LIR NO. 6818-16 Page 8 of 17 management threatened the workmen either to settle their accounts with management or face the consequences of closing of restaurant Hyde Park. It is also stated that workman filed complaints against the management for threatening of raising the Industrial Disputes pending before the Hon'ble Court U/s 2(a) of I.D. Act. It is pleaded that management materialised the above stated threats on 04.05.2007, when it refused duty to 30 workmen named in the present complaint working the kitchen of Hotel and Hyde Park restaurant out of total 58 workmen. It is further pleaded that workmen being aggrieved made a complaint through Union to Labour Department on 04.05.2000 and on complaint, Labour Inspectors deputed and visited the establishment, but there too in front of labour inspectors, the general manager refused to allow the workmen on duty.
17. It is further argued on behalf of workmen that the workman received a notice dated 03.05.2007 sent by the management alongwith bankers cheques in regard to their termination of services w.e.f. 05.05.2007 on the ground of closing the Hyde Park Restaurant due to alleged financial losses. It is argued that workmen received the said cheques under protest without prejudice to their right and claim and in their reply, the workmen submitted that closure of restaurant and kitchen of hotel is sham and camouflage and in fact it is lock out and Hyde Park Restaurant and kitchen of the hotel were not separate and independent unit and is unseverable, therefore, the termination of services of these LIR NO. 6818-16 Page 9 of 17 workmen under the garb of closure is illegal, unjustified and malafide and an act of unfair labour practice.
ARGUMENTS OF MANAGEMENT:
18. On the contrary, it is argued on behalf of management that in the list attached to the complaint, the names of 30 ex-employees are given, out of these 30 employees, 28 employees have already settled their disputes and differences with the management. It was further argued that workmen entered into a settlement with management before the Conciliation Officer on 29.10.2007 wherein they have categorically stated that they have settled all their disputes and the said settlement was duly registered vide registration No. ALC/NDD/2007/1361-1362. It is pleaded that another settlement was entered into between the management and workmen on 31.10.2007 on same terms and conditions and workmen have settled their disputes under section 18 III B, thus the entire dispute stands duly settled and these settlements were having being entered into by the majority of workmen are binding on all the workmen and in view of this settlement, the complaint under section 33-A is not maintainable. It was also pleaded that restaurant went on suffering huge financial losses consequently, the management had to close this restaurant after complying with provisions of I.D. Act and services of employees were terminated after paying them the compensation in terms of I.D. Act. It was also argued that LIR NO. 6818-16 Page 10 of 17 workman Ravinder Raghav was working only as a bill clerk in the restaurant and he was preparing the bills of customers visiting the restaurant and paying their bills for the food enjoyed by them in the restaurant and he was the junior most bill clerk whose services were terminated after paying him compensation for closure which is calculated on the basis of compensation provided U/s 25 F of I.D. Act. It was also argued that they have already filed 28 affidavits with settlement arrived U/s 18 (3) B of the I.D. Act which is binding on all the employees. It was also pleaded that management had given notices to workmen which they have received on 03.05.2007 for closing the restaurant and tendering the compensation w.e.f. 05.05.2007 and these notices were received by the workman 04.05.2007. It was further argued that workmen concerned have encashed their banker's cheques and it is the prerogative of the management to close the restaurant, if it was suffering continuous losses and management was at liberty to run a hotel in an economically viable manner.
19. I have gone through the entire records of the case including pleadings of the parties, evidence led and documents proved during evidence. My issue-wise findings are given below:-
20. Issue No. 1. Whether present complaint U/s 33 A of I.D. is not maintainable in view of the fact that 28 out of 30 employees have settled the matter with the management? And Issue No. 2. Whether management has LIR NO. 6818-16 Page 11 of 17 closed part of the establishment in which 30 workman had been working? And Issue No. 3. Whether services of the workman have been illegally terminated as alleged by the workman, if so, its effect? :- All these issues are taken up together being inter-connected.
21. The workman in its Complaint filed before this Tribunal has stated in Para No. 6 that they have raised an Industrial Dispute in I.D. No. 106/2006 for regularization of their services which is pending before the Industrial Tribunal. The Management in its Written Statement did not deny the pendency of the said dispute and in fact stated that dispute pending before this court being ID No. 106/2006 stands settled and only formalities had to be carried out.
22. Now, the workmen have pleaded that their services were illegally terminated by the management during the pendency of their dispute pertaining to the regularisation of their service. However, on the contrary, it is the stance of the management that workmen have settled the dispute with management and they have already filed 28 affidavits with settlement arrived U/s 18 3 B of the I. D Act which is binding on all the employee.
23. For a decision of application under section 33 (A) of the ID Act, following facts are required to be proved:-
i) That petitioner is a workman.
ii) He/his union has raised an Industrial Dispute, which is
pending in the tribunal.
LIR NO. 6818-16 Page 12 of 17
iii) His service conditions has been changed during the
pendency of the industrial dispute.
iv) No permission has been taken by the management from
the tribunal prior to the changing of service conditions.
24. In the present matter, it is not disputed that general demand matter is pending before this court. It is also not in dispute that petitioner were workmen. It is also not in dispute that they have been terminated during the pendency of the same. However, AR for management has argued that section 33 of the Act is attracted only in such cases where the services of the workman have been terminated for an act of misconduct and the termination of service is punitive but in the present case, it is admitted position that workmen were retrenched from service upon the closure of Hyde Park Restaurant.
25. It is further pertinent to mention here that all 30 workmen as per list attached have duly accepted the retrenchment compensation by encashing the banker's cheques sent to them towards retrenchment compensation and other legal dues. So when the retrenchment of workmen as a result of closure of restaurant under Chapter V-A of I.D. Act does not fall within the purview of the section 33 and as such management was not required to make an application for approval under section 33 of the Act.
26. It is further relevant to note here that factum of retrenchment is duly admitted by the workmen. Further even in para No. 9 of the claim itself, it is mentioned that workmen received a notice dated 03.05.2007 sent by management LIR NO. 6818-16 Page 13 of 17 alongwith bankers cheques in regard to their termination of services w.e.f. 05.05.2007 on the ground of closing the Hyde Park Restaurant due to alleged financial losses. Though it has been averred that workmen received the said bankers cheques under protest but they have failed to show any document regarding their protest as to what steps they have taken against the same. If they were not interested in settlement then they should not have received the retrenchment compensation and should not have presented the cheques for encashment issued by management in this regard.
27. WW-1 during his cross-examination recorded on 16.02.2010 has duly admitted that "It is correct that cheque in the amounts specified in the letter were also sent to individual workmen. It is correct that all the workmen to whom letters had been issued, got the cheques encashed.... It is correct that cheque, I received was encashed by me.... It is correct that we raised a dispute about the termination of services of the 30 workmen after closure of the restaurant" .
28. From above deposition, it is apparent that cheques were duly issued by management to workmen and said cheques were duly encashed by them. It is also clear that the workmen have raised the dispute about termination of services of the workmen after closure of the restaurant and not on account of any punishment inflicted or for any misconduct.
29. As far as testimony of WW-2 Sh. Prakash-II is concerned, in his cross-examination, he deposed that "I do LIR NO. 6818-16 Page 14 of 17 not know about the documents Ex. WW-1/1 to 1/48. I do not know what is written in this affidavit". So it is clear that WW-2 has no knowledge about the documents Ex. WW-1/1 to 1/48 tendered in his examination in chief and he has no knowledge regarding the contents of affidavit, so his deposition is of no help to the case of workmen.
30. It is not disputed that 28 workmen have already settled the dispute with management and have duly received the retrenchment compensation by way of cheques issued to them by management. The position would have been different if the workmen Ravinder Raghav and Prakash have not got encashed the cheques but they have duly received the payment from management and they are not entitled to knock the doors of the court. It is clear from the order dated 24.11.2009, the Ld. Predecessor has observed that case of Raghav and Prakash cannot be decided on the basis of settlement arrived before Conciliation Officer because same will be binding only on 28 workmen and not on these two persons. During the course of cross-examination, both the workmen have demolished their case and it is clear that this litigation has become now fancy litigation. If the workmen was not satisfied with compensation given to them, they should have returned the same before proceeding with the matter.
31. Rather, the retrenchment of complainants on account of closure of restaurant of management, in no case, be regarded as punitive. Further the definition of 'retrenchment' under section 2 (oo) of the I. D. Act by itself stipulates that retrenchment LIR NO. 6818-16 Page 15 of 17 means termination by an employer of the services of a workman for any reason, whatsoever, otherwise than as a punishment inflicted by way of disciplinary action. The termination of service of workmen was not on account of any punishment by way of disciplinary action.
32. The reliance is placed upon judgments passed by Hon'ble Supreme Court in case titled as Mahendra Singh Dhantwal Vs. Hindustant Motors Ltd. 1976 (33) FLR, 67 SC wherein Hon'ble Supreme Court held as under:-
"Termination simplicitor or automatic termination of service under the conditions of service or under the standing orders is outside the scope of section 33 of the Act. This does not mean that the employer has the last word about the termination of service of an employee and can get away with it by describing it to be a simple termination in his letter of discharge addressed to the employee. It is also not a correct proposition of law that in case of a complaint under Section 33-A the Tribunal would be debarred from going into the question whether notwithstanding the form of the order, in substance, it is an action of dismissal for misconduct and not termination simplicitor ".
33. This Tribunal further relies upon another judgment passed by Hon'ble High Court of Madras in vase titled as Silver Cloud Estate Vs. Labour Court, 1960 2 LLJ 571 wherein it was held that "retrenchment effected bonafide for LIR NO. 6818-16 Page 16 of 17 reasons other than punishment cannot come within the meaning of Section 33 (2) (b) of the Act ".
34. It has come on record that management closed down the Hyde Park Restaurant w.e.f. 05.05.2007 and as a result of the closure of restaurant, the workmen became surplus to the requirements of management and therefore, they were retrenched from service and the section 33-A of the I.D. Act would apply only in case of discharge or dismissal for misconduct.
35. Thus on all counts, these issues are decided in favour of the management and against the workmen and it is held that present complaint U/s 33 A of I.D. is not maintainable in view of the fact that 28 out of 30 employees have settled the matter with the management. It is further held that management has closed part of the establishment in which 30 workmen had been working. It is also held that services of the workman have not been illegally terminated and rather they have received retrenchment compensation from management.
36. Relief:- In view of the observation made above, it is held that present complaint is dismissed. The award is passed accordingly. Copy of the award be sent to the appropriate Government for publication as per rules. File be consigned to the Record Room.
Announced in the open Tribunal on this 14.07.2023.
(Ajay Goel) Presiding Officer Industrial Tribunal-I/ Rouse Avenue Court, New Delhi LIR NO. 6818-16 Page 17 of 17