Delhi District Court
Ramesh Chand Semwal vs M/S Modi Rubber Ltd. on 14 October, 2013
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IN THE COURT OF SH.S.S.MALHOTRA, PRESIDING OFFICER,
LABOUR COURT NO. IX, KARKARDOOMA COURTS, DELHI
ID NO. 83/05(old), 62/13(new)
Unique Case I.D. No. 02402C0055802005
BETWEEN THE WORKMEN
1 Ramesh Chand Semwal s/o Sh.V.D Semwal
r/o 352, Sameer Vihar, MRL Hosing Complex,
Modi Nagar, District Ghaziabad, U.P
2 Rudra Bahadur s/o Sh.Bhakta Bahadur Mal
r/o C4/7, Umesh Park, Modi Nagar,
District Ghaziabad, U.P
3 D.V Aggarwal s/o Sh.Satya Kumar
r/o KI28, Kavi Nagar, Ghaziabad
AND THE MANAGEMENT OF
M/s Modi Rubber Ltd.
having its Head office at:
47 C, Modi Rubber Ltd.
Shopping Center, New Friends Colony,
N.Delhi
Date of Institution : 25.01.2005
Date on which the matter was received
back after remanding back : 14.3.2013
Date on which award reserved : 30.09.2013
Date of passing of award : 14.10.2013
AWARD
1 Vide this order, I shall dispose off the reference no. F. 24
(2113)/04/Lab./26165 dated 5.1.2005 as received from the Dy. Labour
Commissioner, North West District, Govt. of NCT of Delhi to the following
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effect:
"Whether the services of Sh.Ramesh Chand Semwal s/o Sh.V D
Semwal and others have been illegally and/or unjustifiably terminated by
the management; and if so, to what sum of money as monetary relief
alongwith consequential benefits of existing laws/Govt.Notifications and to
what other relief is he entitled and what directions are necessary in this
respect?
2 After receiving of the reference, notice was sent to the
claimants/workmen with direction to file the statement of claim which they
have filed jointly and as per the statement of claim, Ramesh Chand Semwal
was appointed with the management on 6.4.1977, Rudra Bahadur was
appointed with the management on 1.9.80 and D.V Aggarwal was appointed
with the management on 1.5.87 and their last drawn wages were Rs.5390/,
Rs.4920/ and Rs.6270/ respectively and they had been discharging their
respective duties efficiently, diligently and to the entire satisfaction of their
higher officials and had never afforded any opportunity of complaint to the
management. It is further submitted that the workmen no.1 & 2 have been
allotted residential quarter by the management and as such they are residing
in the same quarter alongwith their family members and on 29.7.97, the
management terminated the services of the workmen no.1 & 2 vide
termination letter dt.29.7.97 and services of the workman no.3 were
terminated vide termination letter dt.8.9.97 without assigning any reason
and without holding any inquiry although by giving one month salary in
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lieu of one month notice by stating that their services are no longer
required. The aforesaid termination letters have been issued by official
having no power to do so and further relying upon the terms contained in
the appointment letters whereby the employer was entitled to terminate the
services of the employee on one month's notice or one month salary in lieu
of notice, without assigning any reason and it is further submitted that such
termination orders have been issued in a most arbitrary manner by way of
pick and choose policy as the services of many senior employees have been
terminated while juniors have been retained and even new recruitments
were made to perform the work which earlier was being done by the
workmen and it is further submitted that the workmen had previously filed a
writ petition against the illegal & arbitrary termination of their services
before the Hon'ble High Court of Delhi and after the dismissal of such writ
petition, they preferred LPA before the Hon'ble High Court but vide order
dt. 29.9.03 the Division Bench of the Hon'ble High Court of Delhi allowed
the workmen to file the present proceedings, in view of the order passed in
Civil Appeal no.3199/99 by the Hon'ble Supreme Court and thereafter the
conciliation proceedings were initiated by the workmen but since the
management did not come forward for conciliation and due to their adamant
attitude , no conciliation could be reached out and ultimately the matter was
referred before this court for adjudication and the workmen accordingly,
have filed the joint statement of claim with a prayer that award be passed in
favour of the workmen and against the management thereby holding that the
services of the workmen were terminated illegally and unjustifiably by the
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management and they are entitled for their reinstatement with full back
wages and other consequential reliefs.
3 The management was served and it filed its common written
statement to the joint statement of claim of all the three workmen by taking
Preliminary Objections that the claim of the workmen is not maintainable as
the claimants have received all their retiral and other dues fully and finally.
The claim petition as framed is not maintainable as it is not permissible for
several claimants to file a joint statement of claim under I.D Act as the
cause of action of each claimant is unique, distinct, separate and
independent. The claim of the workmen is otherwise barred by time and
latches as despite the order of the Hon'ble High Court of Delhi to approach
the Labour Court under I.D Act within a period of three months from the
date of dismissal of their LPA , the claimants have not taken such recourse
within time as provided by the Hon'ble High Court and the claimants have
approached the Ld.Conciliation Officer only in January,. 2004 and even
otherwise, the claimants are not 'workmen' within the meaning, scope and
definition of section 2(s) of the I.D Act, 1947 and their duties and
responsibilities were of supervisory and administrative in nature. It is
further submitted that the claim of the workmen is not maintainable as it
was clearly mentioned in the letters of the appointment that the services of
the claimants can be terminated on one month's notice on either side and the
management has only terminated the services of the claimants in terms of
the contract of the employment and even otherwise such termination was
due to business exigencies including administrative reasons and there was
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no stigma casted on the work, conduct & performance of the claimants and
it is further submitted that Sh.Ramesh Chand Semwal had been allotted a
residential accommodation and one of the objection of the management is
that the claimant continues to occupy the company's residential quarter and
only with such dishonest intention to retain the residential accommodation,
they approached the Labour Court for their reinstatement despite the fact
that they have already taken the full and final settlement.
Facts with respect to liberalizing the economic policies have also
been mentioned by the management in detail but such facts are not relevant for the purpose of disposing off the claim of the workman. As far as merits are concerned, relationship , length of service and last drawn salary of the claimants is not denied but it is reiterated that the claimants are not the workmen within the meaning, scope and definition of section 2(s) of the I.D Act, 1947. The facts that the claimants had been performing their duties efficiently, diligently are also not denied and it is reiterated that the workmen have been issued the order of discharge without alleging any fact against their conduct and no stigma has been casted upon the claimants and their services have been terminated only because of business exigencies. The working area of claimants Ramesh Chand Semwal, Rudra Bahadur and D.V Aggarwal have been explained in detail and it is reiterated that the management had also been contributing PF and the claimants had been receiving their dues under the PF Scheme which are retiral dues payable to an employee only when he finally leaves the services of the company or Ramesh Chand Semwal vs M/s Modi Rubber ltd.
6/29when the management is no longer interested in continuing his employment. The claimants have received their retiral dues in full and final and consequently, can not raise an Industrial Dispute. As far as proceedings before the Hon'ble High Court and the directions issued by the Hon'ble High Court in the LPA are concerned, the same are stated to be matter of record. It is denied that the management did not come forward for conciliation and on the contrary, it is stated that the management filed its reply to the alleged statement of claim and, therefore, the contention of the workmen about the attitude of the management was without any merits. It is specifically denied that claimants are entitled to reinstatement in service or for back wages and it is reiterated that the claim of the claimants is wholly misconceived, illegal and untenable and the claimants are not eligible to any relief and, therefore, it is prayed that the claim of the workmen be dismissed.
4 Rejoinder was not filed by the workmen & following issues were framed on 12.10.06:
1 Whether the claimants are workmen within the meaning of section 2
(s) of the I.D Act?
2 Whether the management was forced to close down some of its establishments and was justified in discharging the claimants from the services?
3 Whether the claimants have received their dues in full and final settlement with the management?
4 Whether the claim is barred by principle of Estoppal or by latches? 5 Whether the management is referred to BIFR, if so, its effect? 6 As per terms of reference?
7 Relief
5 After framing up of the issues, the workman was directed to Ramesh Chand Semwal vs M/s Modi Rubber ltd.
7/29lead evidence. Workman R.C Semwal examined himself as WW1 and the workman Rudra Bahadur has been examined as WW2 and both of them have been cross examined by Ld.ARM.
However, the workman D.V Aggarwal was also examined as WW3 and was even cross examined in part but he made a statement subsequently on 17.7.08 that he did not want to pursue his claim against the management and he further stated that his claim be dismissed as withdrawn. Thereafter, the court had dismissed the claim of the said workman D.V Aggarwal but simultaneously observed that this fact would also be mentioned at the time of passing of the award finally on merits.
6 Thereafter, an opportunity was given to the management to lead its evidence and it examined Sh.Jai Parkash Gautm as M.W1 but the Ld.ARW could not appear for cross examination of M.W1 and ultimately the opportunity of the workmen to cross examine the M.W1 was closed on 24.3.11 . The workmen thereafter filed an application for granting another opportunity to cross examine the M.W1 but the said application was dismissed and an award was passed against the workmen vide an order dt.6.4.11.
7 The workmen thereafter filed a writ petition before the Hon'ble High Court of Delhi being writ number 5861/11 thereby challenging the award passed by Ld.Predecessor which was disposed off vide order dt. 22.2.13 by the Hon'ble High Court thereby setting aside the award dt.6.4.11 and the Hon'ble High Court simultaneously granted an opportunity to the workmen to cross examine M.W1 and as such the matter was received back by this Ramesh Chand Semwal vs M/s Modi Rubber ltd.
8/29court and was fixed for 14.3.13 for cross examination of M.W1 and on which date, M.W1 was cross examined in part and the cross examination of M.W1 was finally concluded on 9.5.13 .
8 The management thereafter filed two applications i.e. one with the prayer that the management be granted opportunity to produce and show the certified copies of the documents filed before this court in order to prove the veracity of the photocopies filed on record and another application for examining one more witness regarding making offer to the workmen for joining. Both these applications were disposed off vide detailed order dt.24.5.13 and as such all the miscellaneous applications stand disposed off and thereafter , the matter was fixed for final arguments. 9 I have heard the arguments and perused the record. My issuewise findings are as under:
ISSUE NO.1
10 Onus to prove this issue was upon the workmen and they had to prove that they are workmen within the meaning of section 2(s) of the I.D Act. The workmen Ramesh Chand Semwal and Rudra Bhadur in their statement of claim stated that they were appointed by the management on 6.4.77 and 1.9.80 respectively and they had been working to the entire satisfaction of the management but the management in the WS although admitted the relationship yet denied their status by stating that the claimants were not covered under the definition of section 2(s) of the I.D Act as their respective duties were of administrative and supervisory in nature and then in para Ramesh Chand Semwal vs M/s Modi Rubber ltd.
9/29no.2 of the WS, the details of claimant Ramesh Chand Semwal are mentioned by stating that he was responsible to ensure that production and sales statements were prepared on a monthly and quarterly basis and he was also responsible for evaluation and comparison between budgeted amounts and actual amounts in respect of production and sales. He was also required to maintain monthwise stock as also to liase with the banks and to provide them with necessary data and information.
11 As far as claimant Rudra Bahadur is concerned, it is stated that he was working in the publicity department of the company and was reporting to the Manager, Advertising and his duties included maintenance of all records of advertisements released by the company. He was responsible for maintaining all the records of regular advertisements released by company in various tyre, journals, tyre market papers and in nutshell, he was responsible for maintaining the entire advertising activities and he used to assist for printing the POP items as well as follow up their status and besides such activities, he used to discharge his duties in the publicity department.
12 Now, coming to the evidence part. In cross examination, WW1 deposed that he joined the services of the management in Sales Department and he remained in this department till 1994. In 1994, he was moved to the Finance Department and worked lastly as 'Executive Assistant Finance'. His job responsibilities in the Finance Department was mentioned in Ex.WW1/M1 which bears his signatures . He volunteered that a junior employee in the company can not do the work, or perform duty which he Ramesh Chand Semwal vs M/s Modi Rubber ltd.
10/29wants to do rather he has to do the work as per the directions of the management. He even went to the saying that narration of duties and responsibilities performed and entrusted to him have been set out at page no.13 of the WS.
13 Similarly, WW2 in his cross examination deposed that he joined the management on 1.9.80 and continued his employment till 29.7.97. He admitted that he received his increments and promotions from time to time. He admitted that while he was in the employment of the management, he was responsible for maintaining all records for advertisements releasing by the department but denied that he was responsible for doing the jobs pertaining to banner display, processing their bills for payment , obtaining proper supports, & maintaining the records of regular advertisements released by the department . He volunteered that these activities were not done by him. He deposed that he only used to assist the Manager (Advertisement) in respect of the duties performed by him. He further deposed that he used to assist the Manager(Advertisement) by doing the jobs of a peon. He volunteered that he was initially appointed as a peon but his post was redesignated as 'Dispatch Clerk' and he continued working as a peon as well as dispatch clerk. He deposed that he was not promoted from the post of office assistant and when his services were terminated, he was working at the post of 'Office Assistant'. This is the entire evidence. 14 Before coming to the legal aspect , let us read section 2(s) of the I.D Act and the same is reproduced as under: "Workman" means any person (including an apprentice) employed in any Ramesh Chand Semwal vs M/s Modi Rubber ltd.
11/29industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be expressed or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person i who is subject to Air Force, 1950 (45 of 1950), or the Army Act, 1950(46 of 1950), or the Navy Act,1957 (62 of 1957); or ii who is employed in the police service or as an officer or other employee of a prison; or iii who is employed mainly in a managerial or administrative capacity; or iv who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
The scope of section 2(s) of the I.D Act is quite wide and any employee who is employed in any industry to do manual, unskilled ,skilled technical, clerical or supervisory work for hire or reward is included in the definition of section 2(s) of the I.D Act and in the proviso, the employee who is mainly employed in managerial or administrative capacity or who had been employed in supervisory capacity and draws wages exceeding ten thousand rupees per mensem has been excluded from the definition of the workman in section 2(s) of the I.D Act.
15 Law is well settled in judgment titled as Arkal Govind Raj Rao vs Ciba Geigy of India Ltd.Bombay AIR 1985, Supreme Court 985. Mere designation of any person does not take a particular employee away from the definition of section 2(s) of the I.D Act nor it can include within the Ramesh Chand Semwal vs M/s Modi Rubber ltd.
12/29definition of section of 2(s) of the I.D Act and it is only the predominant duty of the workman which is deciding factor as to what status the workman enjoys. It is settled proposition of law that mere fact that a salary of particular employee is exceeding Rs.10,000/ (which was Rs.1600/ prior to 15.9.10) is also not sufficient to bring out a particular employee out of the purview of section 2(s) of the I.D Act.
In the judgment titled as Anand Bajar Patrika (Pvt) Ltd. Vs. The Workmen, 1970 (3) SCC 248, it was inter alia held that "the question, whether a person is employed in a supervisory capacity or on clerical work depends upon whether the main and principal duties carried out by him are those of a supervisory character, or of a nature carried out by a clerk."
Further, in the judgment titled as Yogender Kumar Vs. B.R. Kohli & Co., 106 (2003) DLT 232, it was interalia held by the Hon'ble High Court of Delhi that "Whether or not an employee is a workman under section 2(s) of the I.D. Act is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and material on record and it is not possible to lay down any straitjacket formula which can decide the dispute as to the real nature of duties and functions performed by an employee in all cases. When an employee is required to do more than on kind of work it becomes necessary to determine under which classification under section 2 (s) the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it. The designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the employee concerned and not some works incidentally done.
Ramesh Chand Semwal vs M/s Modi Rubber ltd.
13/29Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory work. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of 'workmen' as defined in section 2 (s) of the I.D. Act."
16 Coming to the facts of the present case. The fact whether a workman is working as a mere worker or whether he enjoys the status of supervisor or administrator are entirely dependent upon the duties which have been assigned to him. Facts which have been mentioned in para no.13 of the WS with respect to the assignment of the duties to the workman mainly do not reflect that the claimant Ramesh Chand Semwal and Rudra Bahadur had been doing any such act which can be brought within the category of administrative or managerial or even supervisory nature. They were doing their work which were assigned to them irrespective of their designation or change of designation and they were not supervising any work of whatsoever nature. There is not even a single duty, out of the duties as mentioned in para no.12 & 13 of the WS with regard to the duty assigned to the workmen, which the workmen would have been able to do independently and which may come within the definition of finality of that assignment as far as that duty is concerned. Each and every duty of the workmen as have been assigned to them is subject to verification of their Ramesh Chand Semwal vs M/s Modi Rubber ltd.
14/29higher ups and it appears to the court that the workmen were doing the work of 'Assistant' rather the work which is of managerial/administrative & supervisory. Further, the nature of duties as assigned to the workmen also reflects that the workmen were not having any power to control or command any other employee for getting the work done from any of the employee as an Incharge. The work of processing the data may come to the workman from lower staff, it has then to be reprocessed by the workman and then it has to be forwarded to the higher ups. There is no evidence of M.W1 on the record which may suggest that any act of the workman Sh.Ramesh Chand Semwal or Sh.Rudra Bahadur was such that it has to be deemed as final without further processing and discussing the same by their higher ups.
17 Further, how many workers were working under the workman Sh.Ramesh Chand Semwal or Sh.Rudra Bahadur, what directions the workman could have been able to give to their subordinates, what were the specific duties, which they had to supervise and whether there was any job assigned to them had any character of its finality, are such facts which are missing from the job profile of the workman. However, when M.W1 was being cross examined, he admitted as correct that the management issued a letter regarding change of designation of workman Rudra Bahadur which letter is dt.30.1.93 Ex.M.w 1/XW1 but he denied that despite issuance of letter, the workman was working as a 'peon' and not at the redesignated post. He further deposed that the workman himself has given in writing as to which duty he has to do.
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15/2918 No doubt the contention that the claimant Rudra Bahadur was working as a 'peon' can not be accepted as he was lastly drawing the wages of Rs.4920/ which was more than the limit of Rs.1600/p.m as mentioned in the I.D Act and this may be the contention of the management that such salary may bring the workman out of the purview of the definition of section 2(s) of the I.D Act but the court is of the opinion that even the argument of the management is not well found. It is well settled law that by mere receiving the salary of more than the limit prescribed in the I.D Act would not be able to confer the status of supervisor on the employee. Even the claimant can not be said to have been working as a 'peon' and this is quite a exaggeration of facts on the part of the workman and even otherwise it can not be presumed nor the management has been able to prove that he was given any supervisory work by it . All the functions which have been mentioned in para no.13 of the WS may cover some wider power given to the workman for better & effective administrative control by the management of the internal activities of the establishment but their duties in the considered opinion of this court are not sufficient to give the status of Supervisor, Manager or Administrator to the workman. Accordingly, the issue no.1 is decided in favour of the workmen and against the management.
ISSUE NO.2 19 Onus to prove this issue was upon the management and it had to prove that the management was forced to close down some of its Ramesh Chand Semwal vs M/s Modi Rubber ltd.
16/29establishments and was justified in discharging the claimants from the services. Management has elaborately stated various facts in its WS that it had certain business exigencies due to which it had to close down some of its establishments and by saying so, the management intends to justify the action of terminating the services of the workmen. Court is of the opinion that whether the management was forced to close down some of its establishments or whether it was justified in discharging the claimants from the services, can only be viewed by keeping the provisions of I.D Act in mind. If the management intends to close a particular unit wherefrom any of its worker has been terminated, then the management was supposed to fulfill the necessary criteria as provided by the provisions of the I.D Act. Even the Hon'ble High Court had given the liberty to the workmen, that forum of writ petition which the workmen had chosen is not an appropriate forum rather the appropriate forum would be the provisions of the I.D Act and, therefore, this court is of the opinion that even if the management was forced to close down some of its establishment then it has to close down such establishments only by following principles as prescribed under I.D Act and the management by opting such provisions should have dealt with the workman accordingly. Therefore, this issue is not relevant to be decided by this court as to under what circumstances, the management was forced to close down some of its establishments and suffice is to say that if the management had to close its establishment, it was duty bound to protect the rights available to its employee in accordance with the provisions as prescribed under I.D Act which admittedly has not been followed. This part Ramesh Chand Semwal vs M/s Modi Rubber ltd.
17/29of the issue is answered accordingly and as far as issue i.e whether the management was justified in discharging the claimants from the services is concerned, the same would be disposed off while disposing off the issue no.6 where the court would be disposing off the issue i.e. whether the services of the workmen have been terminated illegally or unjustifiably by the management.
ISSUE NO.3 20 Onus to prove this issue was upon the management and it had to prove that the claimants have received their dues in full and final settlement with the management. In para no.1 of the preliminary objections of the WS, the management has taken this objection that the claim of the workmen is not maintainable as they have received all the retiral and other dues in full and final settlement. In evidence, M.W1 Sh.Jai Prakash Gautam reiterated the facts as mentioned in para no.1 of the affidavit of evidence.
In cross examination, he deposed that he has not filed any document on record to prove that the workmen have already taken their gratuity. He volunteered that the workmen had taken only PF from the management. He further deposed that as regards the phrase used in para no.2, the workmen have taken gratuity, PF and the like benefits in full and final settlement from the management for the services rendered and from the word' like benefits' he means that the workmen had been given the wages in lieu of one month's notice and towards retiral benefits, the workmen have already withdrawn their PF and except one month's notice pay and PF, the Ramesh Chand Semwal vs M/s Modi Rubber ltd.
18/29workmen have not received anything from the management. He further deposed that he did not know as to whether the workmen filed the statement of claim to the effect that Ramesh Chand Semwal has to receive Rs.5,03,613/ and Rudra Bahadur has to receive an amount of Rs.4,91,912/ and he deposed that he had to check the record as to whether such statement is available with the management or not and when the matter was adjourned to inform about the same, he deposed on next date of hearing that he has checked his documents with respect to his previous statement dt.16.9.10 and he stated that he has not been able to trace out any record in the office of the management. He was further suggested that in account books of the management, it was mentioned that an amount of Rs.5,03,613/ was due in favour of Sh.R.C Semwal or an amount of Rs.4,91,912/ was due against Rudra Bahadur but he denied this suggestion. The workmen in their evidence has stated that they had not received any full and final settlement and they were cross examined by Ld.ARM. In the cross examination of WW1 and WW2, there is no specific suggestion as to how much amount was given by the management to the workmen towards full and final settlement.
21 To understand the word' full and final settlement', it is to be understood first that what amount may come or may be included in full and final settlement. As far as I.D Act is concerned, there is no definition of the phrase ' full and final settlement' but as far as various pronouncements are concerned, the word 'full and final settlement' would simply mean that it would include such an amount which if paid by the management and Ramesh Chand Semwal vs M/s Modi Rubber ltd.
19/29accepted and received by the workmen then thereafter there would be no claim either of the management upon the workmen or viceversa with respect to any monetary benefits qua the terms and nature of employment. Therefore, if a wider view is taken then it would include that all amount which the management paid to the workmen at the time of leaving/retiring/terminating the job i.e. their earned wages , leave encashment, bonus, amount of PF, amount towards gratuity if payable, retiral benefits and which may also include any other amount which the workmen owe to the management including the amount which the management has given to the workmen during its tenure by way of advancing loan or by way of any legal facility attached to the job entrusted to the workmen like accommodation or conveyance if any, or any other such benefit which the workmen have to return to the management at the time of such settlement & after adjusting all such benefits, the terms of full and final would be arrived at.
22 If the court applies this test to the present facts and circumstances then it is clear that apart from one month's salary and amount deposited towards PF, no other amount has been given to the workmen. The substantive dispute in between the parties is going on with respect to accommodation provided to some of the employees which is specifically mentioned in these pleadings.
23 Court is, therefore, not in agreement with the contention of the management that both the workmen have settled their matter fully and finally and even otherwise there is no pleading on the court record which Ramesh Chand Semwal vs M/s Modi Rubber ltd.
20/29may suggest that before issuing the termination letter, the management had ever called upon the workmen to come and collect the full and final settlement rather the language which is used in the termination letter in para no.2 is reproduced as under:
" You may collect all your dues alongwith compensation in full and final settlement from our accounts department on any working day during working hours after submitting clearance certificate"
Therefore, this termination letter itself depicts that full and final settlement was still to be given to the workmen on the date of termination and it has nowhere come in the entire evidence of the management as to on which particular date, how much amount, under which particular head had been given to the workmen so as to justify the plea taken by the management in the WS and reiterated in affidavit of evidence that the management has given full and final settlement. The issue is accordingly, decided against the management.
ISSUE NO.4 24 Onus to prove this issue was upon the management and it had to prove that the claim is barred by principle of Estoppal or by latches. The basic argument of Ld.ARM on this issue is that the workmen have alleged that they have been terminated on 29.7.97 and they have approached the Labour Court in April, 2005 and, therefore, the claim of the workmen is barred by law. The supplementary contention of the management is that the claim of the workmen is barred by the principle of Estoppal and by Ramesh Chand Semwal vs M/s Modi Rubber ltd.
21/29contending Estoppal, the plea of the management is that the workmen had approached the Hon'ble High Court of Delhi in writ petition without any basis which writ petition was dismissed by the Hon'ble High Court of Delhi and when the workmen preferred the LPA against the order of dismissal of the writ petition, and the said LPA was disposed off with the liberty to the workmen to seek the relief under I.D Act within 3 months and it is contended that since the workmen did not initiate the proceedings under I.D Act within the period so granted by the Hon'ble High Court of Delhi, the claim of the workmen is barred by law. It is interalia argued by Ld.ARM that the claimants were supposed to approach the Labour Court within a period of 3 month from 29.9.03 i.e. the date of the order in the LPA but the claimants approached the Labour Authorities after much delay and, therefore, the present claim is barred by delay and latches and it is further argued that the workmen have not filed any positive evidence on court record to prove that why there was any delay despite the orders of the Hon'ble court in approaching the Labour authorities. 25 Court has specifically enquired from Ld.ARM that since there is no limitation period provided under I.D Act for filing a claim then under what provisions of law, this issue was raised as a preliminary objection and where from the theory of Estoppal and latches have been brought in I. D Act but no specific reply has been given rather it is stated by Ld.ARM in the written arguments that although ID Act does not specify the limitation for initiating the proceedings in the Labour cases yet he has supported his argument that this is a case where the workmen initially approached the Ramesh Chand Semwal vs M/s Modi Rubber ltd.
22/29wrong forum and then did not comply with the directions given, by the Hon'ble High Court of Delhi and the whole intention of the workmen was to delay the proceedings so that they may retain the residential accommodation provided to them and as such they had been causing wrongful loss to the management.
26 Ld.ARW on the other hand has relied upon judgment titled as Ajab Singh vs The Sirhind Cooperative Marketing cum Processing Service Society Ltd.& another AIR 1999 Supreme Court 1351 in which it was interalia held that:
"The provisions of Art.137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the Act and that the relief under it can not be denied to the workmen merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the labour court can be generally questioned on the ground of delay alone. Even in a case where the delay is shown to be existing, the tribunal, labour Court or board, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retenchment/termination or dismissal. The Court may also in appropriate cases direct the payment of part of the back wages instead of full back wages".
I have gone through the rival contentions of both the Ld.ARs and this court is of the opinion that contention of Ld.ARM is well found but Ramesh Chand Semwal vs M/s Modi Rubber ltd.
23/29only to the extent that the court may look into the fact as to why the workmen were causing delay and may mould the relief while granting the relief for the period falling in between the date of termination and date of filing the claim and then reasons for delaying the proceedings so as to grant the relief as far as back benefits are concerned but it can not outrightly reject the claim on the ground of delay and latches. Accordingly, this issue is decided against the management.
ISSUE NO.5 27 Onus to prove this issue was upon the management and it had to prove that the management was referred to BIFR. Court is of the opinion that this issue was not required to be framed at all as the management in its WS took the plea that the management had referred the matter to BIFR u/s 15 of the Sick Industrial Company Act (in short 'SICA') within the prescribed period and there was no rejoinder filed by the workmen but in the evidence, the workmen have admitted that the management had referred the matter to BIFR. However, the workmen simultaneously deposed that all such process of referring the matter to BIFR for some different reasons i.e. for cheating the public at large particularly the workmen. Court is not referring any opinion on such contention. However, the fact remains that the management was referred to BIFR. This court is still of the opinion that there is no provision under I.D Act thereby granting any benefit either to the workmen or to the management if any of the management has been referred to BIFR and the court is also of the opinion that the provision of I.D Act have an overriding effect as far as employee and employer relationship is Ramesh Chand Semwal vs M/s Modi Rubber ltd.
24/29concerned. Therefore, there is no effect as far as rights of the parties are concerned even if the management had been referred to BIFR. The issue is answered accordingly.
ISSUE NO.6 28 Onus to prove this issue was upon the workmen and they had to prove that they had been terminated illegally and unjustifiably by the management and simultaneously, the court is taking up & disposing off the left over part of the issue no.2 i.e. whether the management was justified in discharging the claimants from the services. As far as termination/discharging the workman is concerned, it is not disputed fact. The management has terminated the services of the workmen vide written letter dt.29.7.97. Now, the only fact remains is whether the management was justified in terminating the services in this way. The simple answer to this question is in negative. Court is of the opinion that services of an employee upon whom the provisions of I.D Act are applicable has to be discharged/terminated only in view of the provisions of ID Act itself and no other Act. The management was in financial difficulty, the management had to close some of its units, the management had certain other difficulties in operating its existing unit, may be relevant facts as far as management and its operations are concerned but such facts do not have any adverse implication on the rights of the employees. It is well settled proposition of law that even under I.D Act the termination of the services of the workmen is not barred and section 25(F) of the I.D Act interalia reads that services can be terminated but by following procedure as provided under section 25(F) of the I.D Act Ramesh Chand Semwal vs M/s Modi Rubber ltd.
25/29i.e. it has to pay retrenchment compensation to the workmen, it has to pay other benefits to the workmen including one month's salary and and if the management intended to close its activities then it has to follow the provisions of section 25(FFF) of the ID Act by giving closure benefit as provided in the I.D Act itself. The defence that the management had financially crumbled or the management had certain business exigencies or there were recession in the world economy or there were drop in demand of truck and bus tyres which was major contribution for huge losses in the revenue and profitability of the tyre units and as such the management had lost a considerable market share of sales in various segments, may be certain surrounding factors which the management can take care of, while disposing off the claim of each workman but definitely there is no provision of such excuses under the provision as mentioned in I.D Act. It is admitted fact that while terminating the services of the workman, the procedure as provided u/s 25 (F) of I.D Act was not followed and therefore, the court is of the opinion that such termination of the workmen was in violation of the principles of section 25(F) of the I.D Act.
29 It is argued by Ld.ARM that the workmen were appointed on the basis of appointment letter which interalia included the condition that they can be terminated by giving one month's notice and the management paid the salary of one month to the workman alongwith termination letter and, therefore, this termination is only in accordance with the contract as entered into in between the claimants and the management and can not be said to be illegal.
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26/29Ld.ARW on the other hand has argued that under the provisions of Labour Law, no such condition can be entered into in the appointment letter and even if there is such condition, the same is in violation of section 23 of Indian Contract Act as the same is against the public policy and such condition is void abinitio.
30 I have given my thoughtful consideration to the contentions of the respective parties. Court is of the opinion that the contention of the workmen appears to be well found and not only such condition is in violation of section 23 of Indian Contract Act but it is also violation of section 25(J) of the I.D Act which reads as under:
Effect of Laws inconsistent with this Chapter:(1) The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law (including standing orders made under the Industrial Employment (Standing orders) Act, 1946 (20 of 1946) Provided that where under the provisions of any other Act or rules, orders or notifications issued thereunder or under any standing orders or any award, contract of service or otherwise, a workman is entitled to benefits in respect to any matter which are more favourable to him than those to which he would be entitled under this Act, the workman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act) (2) For the removal of doubts, it is hereby declared that nothing contained in this Chapter shall be Ramesh Chand Semwal vs M/s Modi Rubber ltd.27/29
deemed to affect the provisions of any other law for the time being in force in any State in so far as that law provides for the settlement of industrial disputes,but the rights and liabilities of employers and workmen in so far as they relate to lay off and retrenchment shall be determined in accordance with the provisions of this Chapter) Therefore, the contention of the management is not well found and as such the issue no.6 is decided in favour of workmen by holding that the workmen have been able to prove that they had been terminated illegally and unjustifiably by the management.
ISSUE NO. 7 RELIEF 31 Keeping in view findings of this court on issues, the workmen are entitled to relief. However, the workmen have claimed reinstatement and compensation alongwith full back wages. Court is of the opinion that keeping in view the fact that the claimants have been terminated on 29.7.97 i.e. around 16 years back and prior to that they have put up around 20 & 17 years respectively in the management and also keeping in view the fact that the claimants may not have been without any work for 16 years, the court is of the opinion that it is not a fit case where reinstatement be ordered. Even otherwise, the reinstatement is not a matter of right as it was held in judgments titled as Senior Superintendent Telegraph (Traffic), Bhopal vs Santosh Kumar Seal and ors (2010), 6 Supreme Court Cases 773 and Jagbir Singh vs Haryana State Agriculture Marketing Board and Anrs.AIR 2009 SC 3004.
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28/29It is otherwise argued by Ld.ARM that after the financial condition of the management has improved, it had offered the workmen for their reinstatement but they have not joined the management and, therefore, the workmen are not entitled for any compensation w.e.f date of offer of employment with package. I have given my thoughtful consideration to the arguments of Ld.ARM and the court is of the opinion that such offer was duly discussed by the Ld.Predecessor in order dt.22.7.10 and even otherwise, no worker would be without work awaiting such offer of the management after 13 years of termination. Therefore, the contention of the ARM is not well found for the reasons that the offer has been given at much belated stage. Keeping in view all such facts, the court is of the opinion that the compensation would be a better option.
As far as the quantum of compensation is concerned, the court accordingly, is granting the following compensation:
1 3 months' notice pay (last drawn wages or minimum wages whichever is higher) as number of workmen in the management is more than 100 as prescribed under section 25(N) of the I.D Act 2 Retrenchment compensation for 20 years which is equivalent to 10 months' salary to the workman Sh.Ramesh Chand Semwal and for 18 years which is equivalent to 9 months' salary to workman Sh.Rudra Bahadur in view of section 25 F(b) of the I.D Act.
3 No compensation for the period from the date of termination upto the date receiving the reference in the court.
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29/294 50% of last paid wages or minimum wages whichever is higher from time to time w.e.f. date of receiving the reference in the court upto the date of award.
An Award is passed accordingly to the above effect and the management is directed to pay the awarded amount to the workmen within a period of one month failing which the awarded amount shall carry the interest @ Rs.8% p.a.from the date of award till the payment.
As far as claim of workman D.V Aggarwal is concerned, a 'No dispute award' is passed against him.
A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
ANNOUNCED IN OPEN (S.S.MALHOTRA)
COURT ON 14 OCTOBER, 2013 PRESIDING OFFICER
th
LABOUR COURTIX/KKD COURTS:DELHI
Ramesh Chand Semwal vs M/s Modi Rubber ltd.
30/29
ID no.296/11
5.4.2013
Present: Workman in person
Vide my separate award, a lump sum compensation to the extent of Rs.25,000/ is awarded to the workman. Accordingly, the management is directed to pay the awarded amount from date of award within a period of one month, failing which this amount shall carry a simple interest @ 8% per annum till realization.
A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
(S.S.MALHOTRA) POLCIX/5.4.2013 Ramesh Chand Semwal vs M/s Modi Rubber ltd.
31/29Ramesh Chand Semwal vs M/s Modi Rubber ltd.