Delhi District Court
Sh. Rakesh Kumar vs M/S. Alankit Life Care Ltd on 27 July, 2016
IN THE COURT OF SHRI UMED SINGH GREWAL
PO:LCXVII, ROOM NO. 22 : KKD COURTS :DELHI
ID No.2687/16 (Old No. ID 06/12).
Unique ID No.02402C000502012.
Sh. Rakesh Kumar,
S/o Sh. Jai Ram Gupta
C/o C/o All India General Mazdoor Trade Union (Regd.)
170, Bal Mukund Khand, Giri Nagar, Kalkaji,
New Delhi110019.
............. Workman
Versus
M/s. Alankit Life Care Ltd.,
2E/21, Jhandewalan Extn., New Delhi110055.
..............Management
DATE OF INSTITUTION : 04.01.2012
DATE ON WHICH AWARD RESERVED : 26.07.2016.
DATE ON WHICH AWARD PASSED : 27.07.2016.
A W A R D :
1. Vide Order No. F.24(57)/11/Lab./CD/278 dated
29.12.2011, issued by Government of NCT of Delhi, a reference was
sent to this Court with the following terms:
"Whether the services of Sh. Rakesh Kumar S/o Sh.
Jai Ram Gupta, have been terminated illegally and
or unjustifiably by the management and if so; to
what relief is he entitled and what directions are
necessary in this respect?"
2. Claimants' case is that he had started working with the
ID No. 2687/16. 1/15
management from 03.10.2002 as Account Assistant at the last drawn
salary of Rs.11,609/ per month. The management was not providing
him facilities like leave book, attendance card, wage slip, weekly and
yearly offs, double overtime, transport allowance and
accommodation allowance etc. When he demanded those facilities,
his service was terminated illegally on 12.10.10 by withholding
earned wages from 01.08.10 to 11.10.10 by obtaining his signatures
on blank papers and vouchers forcibly. Against termination, he sent
demand notice dated 13.07.11 to the management, but he was neither
reinstated nor earned wages were paid. Case filed before
Conciliation Officer also went unresolved due to adamant attitude of
the management. He is unemployed since the termination of
service.
3. Written statement is to the effect that claimant had started
working with the management from 01.04.07 and not from 03.10.02.
His total salary was Rs.11,609/ comprising of basic pay of
Rs.6,756/, HRA of Rs.2,702/, conveyance allowance of Rs.800/
and advance against bonus of Rs.1351/. He was working as
Storekeeper in the medicine shop of the management. On 08.10.10,
the management came to know that there was a shortage of
Rs.2,20,000/. After coming into knowledge of that fact to the
management, the claimant started missing office. He sent leave
applications from 11.10.10 to 24.10.10. The management was
ID No. 2687/16. 2/15
expecting him to join duty and explain shortage, but it was he who
had caused the shortage and such suspicion turned into conviction
when he furnished resignation on 01.11.10. The management had
lodged a complaint against him to police on 11.11.10 for shortages.
4. Following issues were framed on 04.01.2013:
1. Whether the workman abandoned his job? OPM
2. As per terms of reference.
On 12.04.2003, following additional issue was framed
and it was directed to be treated as issue No. 2 and issue No. 2
already framed, was directed to be treated as issue No. 3:
"Whether the claimant himself resigned on
01.11.10?" OPM.
5. In order to substantiate the case, claimant tendered his
affidavit in evidence as Ex. WW1/A mentioning all the facts stated in
the statement of claim. He relied upon following documents :
a. Ex. WW1/1 dated 13.07.11 is complaint to Assistant Labour
Commissioner.
b. Ex. WW1/2 is his ESI card showing date of his joining the
management as 01.08.2005.
c. Ex. WW1/3 is the salary slip for the month of April, 2010 issued
by management.
d. Ex. WW1/4 is the salary slip the month of July, 2010 issued by
management.
ID No. 2687/16. 3/15
e. Ex. WW1/5 is copy of bank pass book of the claimant.
f. Mark A is demand notice dated 13.07.11.
g. Mark B is copy of statement of claim before Conciliation Officer.
h. Ex.WW1/X1 is claimant's salary slip for the month of September,
2003 issued by M/s. Alankit Assignments Limited.
i. Ex.WW1/X2 is salary slip for the month of November, 2003 issued
by M/s. Alankit Assignments Limited.
j. Ex.WW1/X3 is salary slip for the month of December, 2003 issued
by M/s. Alankit Assignments Limited.
7. The Management examined its authorized representative
Sh. Shanti Lal Chaplot as MW1, who deposed that claimant had
started working with the management w.e.f. 01.04.07 and not
03.10.2002. He repeated the contents of written statement and relied
upon following documents :
1. Ex. MW1/1 is Board Resolution.
2. Ex. MW1/2 is inter office memo dt. 11.10.10.
3. Ex. MW1/3 is report lodged with PS Paharganj dt. 11.10.10
against the claimant.
4. Ex. MW1/4 is copy of the registration proof of the
management company under Delhi Shops and Establishments
Act.
8. None appeared for the management to argue the case.
Issue No. 1 & 2.
Whether the workman abandoned his job? OPM
ID No. 2687/16. 4/15
Whether the claimant himself resigned on 01.11.10? OPM.
9. As per written statement and evidence of MW1, the case
of the management is that claimant was working with it as Store
Incharge in the medicine shop. When the stock of the shop was
checked on 08.10.10, the same was found short of Rs.2,20,000/.
Suddenly, the claimant stopped visiting the shop and sent leave
applications from 11.10.10 to 24.10.10. The management was
suspecting him the person behind shortage and that is why it had
sent complaint Ex. MW1/3 to SHO Paharganj Police Station on
11.10.10 itself. Late, the management became fully sure that it was
claimant who had caused shortage as he resigned from job on
01.11.10.
On the other hand, ld. ARW argued that the claimant
was not working as Store Incharge with the management and rather
he was working as Accountant as evident from his salary slips Ex.
WW1/3 and Ex. WW1/4. After lodging of complaint Ex. MW1/3,
the management did not take any action against claimant and that
shows that the said complaint was filed in PS Paharganj only to
justify the termination.
10. Ex. WW1/3 and Ex. WW1/4 are salary slips of the
claimant for the months of April and July, 2010 in which his
designation has been given as Accounts. It means that he was
ID No. 2687/16. 5/15
working in the Accounts Section. The management did not file any
document to prove that he was working as Store Incharge in the
medicine shop. The management did not place on record any
appointment letter or the attendance register which may prove that he
was working as Store Incharge. The complaint Ex. MW1/3 bears the
date and seal of PS Paharganj as 11.10.10 suggesting that same was
given to the police station on that day. The management did not
examine any witness from the police to prove what action was taken
against him. The management has failed to prove whether any FIR
was registered against the claimant on that complaint. Had there
been any substance in the complaint, the police would have definitely
registered FIR and arrested the claimant. But all these facts are
missing making the complaint Ex. MW1/3 doubtful.
The management did not send any letter to the claimant
asking him to resume duty. As per the management, it was claimant
who was going absent and he was required by the management in
connection with misappropriation of Rs.2,20,000/. Had the claimant
been absent, the management would have definitely sent him call
letters to resume duty.
MW1 deposed that claimant had tendered his resignation
on 01.11.10. In cross examination, he admitted that resignation letter
has not been placed on record. In the absence of the resignation
letter, the management has failed to prove that claimant had resigned
on 01.11.10.
ID No. 2687/16. 6/15
In view of above discussion, both issues are decided
against and in favour of the claimant.
Issue No. 3.
11. It is the consistent plea of the claimant that his service
was terminated by the management on 12.10.10 illegally without any
notice, notice pay and retrenchment compensation. Management's
case was that he had abandoned the job as he had caused shortage of
an amount of Rs.2,20,000/ and in the last, he had resigned on
01.11.10. The management has failed to prove its contentions.
Termination of service of claimant without notice and without
tendering notice pay and retrenchment compensation is in violation
to Section 25F of the I.D. Act, 1947. It is not the case of any of the
party that any chargesheet was issued or that any domestic enquiry
was conducted against the claimant. So, this issue is decided in
favour of the claimant and against the management.
Relief.
12. Claimant deposed that he had been working with the
management since 03.10.02 and his service was terminated on
12.10.10. Management's case is that he had joined it only on
01.04.07 and had left it in lurch w.e.f. 25.10.10 after absenting from
11.10.10 to 24.10.10.
Ld. ARW submitted that Ex. WW1/2 is the proof of the
ID No. 2687/16. 7/15
fact that the claimant had joined the management on 01.08.05. He
relied upon salary slips Ex. WW1/X1 and Ex. WW1/X2 to argue that
those slips prove that workman was working with the management
since September, 2003.
13. ESI card Ex. WW1/2 shows that the claimant had joined
the employer on 01.08.2005. The code number of employer is
mentioned as 115994450. The claimant did not examine any
witness from ESIC office to prove that the said code was issued to
the management. MW1 was cross examined on the point of ESI
code of the management and he replied that code No. 1140107612
1001 was issued to the management by the ESI. In this regard, he is
fully supported by letter Ex. MW1/W1 dated 29.06.2009 issued by
the ESI to the management in which it is mentioned that code No. 11
401076121001 was alloted to the management. Cross examination
of MW1 and letter Ex. MW1/W1 prove that the ESI card Ex. WW1/2
does not pertain to the management. So, that document cannot be
taken as proof of the fact that claimant had joined the management on
01.08.05.
Salary slips Ex.WW1/X1, Ex. WW1/X2 and Ex.
WW1/X3 for the months of September, 2003, November, 2003 and
December, 2003 are bearing the name of the employer of the
claimant as M/s. Alankit Assignments Limited, whereas the name of
the present management is Alankit Life Care Ltd. Both are different
ID No. 2687/16. 8/15
as the claimant did not place on record any document to prove any
connection between management and M/s. Alankit Assignments
Limited. So, those salary slips also cannot be taken as proof of the
fact that claimant was working with the management since
September, 2003.
The claimant admitted in cross examination that he had
started working with M/s. Alankit Assignments Limited in the year
2002. He further deposed that he joined M/s. Alankit Life Care Ltd.
i.e. management in the year 2006. The management's contention is
that he had joined it on 01.04.2007. All service record of an
employee is supposed to be in the possession of the management. In
order to prove that claimant had joined it on 01.04.2007, the
management did not place on record any document like appointment
letter, attendance card, ESI and PF certificate. There is unexhibited
and unmarked identity card of the claimant in which it is mentioned
that the same was valid from 11.03.2006. That document sorts out
controversy and hence the date 11.03.2006 is taken the date on which
the claimant had joined the management. His service was terminated
on 12.10.10. In this way, he had worked with the management for
04 years and 07 months at the last drawn salary of Rs.11,609/ per
month.
14. Even if, service of a workman has been terminated
illegally, that would not automatically lead to reinstatement with
ID No. 2687/16. 9/15
100% back wages. In Nehru Yuva Kendra Sangathan Vs. Union of
India & Ors. 2000 IV AD (Delhi) 709, Hon'ble Delhi High Court
dealt with the question of reinstatement and back wages and
observed in paragraphs 27 and 28 as under :
"27. We find from the decision of the
Supreme Court rendered in the 1970s and
1980s that reinstatement with back wages was
the norm in cases where the termination of the
services of the workman was held inoperative.
The decisions rendered in the 1990s, including
the decision of the Constitution Bench in the
Punjab Land Development and Reclamation
Corporation Ltd., Chandigarh seem to suggest
that compensation in lieu of reinstatement and
back wages is now the norm. In any case,
since we are bound to follow the decision of
the Constitution Bench, we, therefore,
conclude that reinstatement is not the
inevitable consequence of quashing an order
of termination; compensation can be awarded
in lieu of reinstatement and back wages.
28. Considering the facts of this case, we
are persuaded to award compensation in lieu
of reinstatement and back wages to the
workman"
15. In Municipal Council, Sujanpur Vs. Surinder Kumar
2006 LLR 662, Hon'ble Supreme Court observed that the relief of
reinstatement is not automatic but is in the discretion of the court. In
paragraph 16, it was observed as under :
ID No. 2687/16. 10/15
"Apart from the aforementioned error of law,
in our considered opinion, the Labour Court
and consequently the High Court completely
misdirected themselves insofar as they failed
to take into consideration that relief to be
granted in terms of section 11A of the said Act
being discretionary in nature, a Labour Court
was required to consider the facts of each
case therefor. Only because relief by way of
reinstatement with full back wages would be
lawful, it would not mean that the same would
be granted automatically".
16. In Vinod Kumar & others vs Salwan Public School &
others WP(c)5820/2011 dt.17.11.2014 Hon,ble Justice V.
Kameshwar Rao has held as under:
11.Having considered the rival submissions of
the counsels for the parties, I do not find any
infirmity in the order of the Labour Court. It is
a settled position of law that even if
termination has been held to be illegal,
reinstatement with full back wages is not to be
granted automatically. The Labour Court is
within its right to mould the relief by granting
a lumpsum compensation. In fact, I note that
the Labour Court has relied upon three
judgments propounding the law that the
Labour Court can mould a relief by granting
lump sum compensation; the Labour Court is
entitled to grant relief having regard to facts
and circumstances of each case.
12. Further, the Supreme Court in the
following judgments held as under:
(a) In the matter reported as Jaipur
ID No. 2687/16. 11/15
Development Authority v. Ramsahai, (2006)
11 SCC 684, the court has stated:
"However, even assuming that there had been
a violation of Sections 25G and 25H of the
Act, but, the same by itself, in our opinion,
would not mean that the Labour Court should
have passed an award of reinstatement with
entire back wages. This Court time and again
has held that the jurisdiction under Section
11A must be exercised judiciously. The
workman must be employed by State within the
meaning of Article 12 of the Constitution of
India, having regard to the doctrine of public
employment. It is also required to recruit
employees in terms of the provisions of the
rules for recruitment framed by it. The
respondent had not regularly served the
appellant. The job was not of perennial nature. There was nothing to show that he, when his services were terminated any person who was junior to him in the same category, had been retained. His services were dispensed with as early as in 1987. It would not be proper to direct his reinstatement with back wages. We, therefore, are of the opinion that interest of justice would be subserved if instead and in place of reinstatement of his services, a sum of Rs 75,000 is awarded to the respondent by way of compensation as has been done by this Court in a number of its judgments."
(b) In the matter reported as Nagar Mahapalika v. State of U.P., (2006) 5 SCC 127, the court has stated:
"23. Noncompliance with the provisions of ID No. 2687/16. 12/15 Section 6N of the U.P. Industrial Disputes Act, although, may lead to the grant of a relief of reinstatement with full back wages and continuity of service in favour of the retrenched workmen, the same would not mean that such a relief is to be granted automatically or as a matter of course. 25 .....The appellant herein has clearly stated that the appointments of the respondents have been made in violation of the provisions of the Adhiniyam. An appointment made in violation of the provisions of the Adhiniyam is void. The same, however, although would not mean that the provisions of the Industrial Disputes Act are not required to be taken into consideration for the purpose of determination of the question as to whether the termination of workmen from services is legal or not but the same should have to be considered to be an important factor in the matter of grant of relief. The Municipal Corporation deals with public money. Appointments of the respondents were made for carrying out the work of assessment. Such assessments are done periodically. Their services, thus, should not have been directed to be continued despite the requirements therefor having come to an end. It, therefore, in our considered view, is not a case where the relief of reinstatement should have been granted."
(c) In the matter reported as Talwara Coop. Credit and Service Society Ltd. v. Sushil Kumar, (2008) 9 SCC 486, the court has stated:
"8. Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is ID No. 2687/16. 13/15 also not automatic. The Industrial Courts while exercising their power under Section 11A of the Industrial Disputes Act, 1947 are required to strike a balance in a situation of this nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment viz. whether the appointment had been made in accordance with the statutory rules so far as a public sector undertaking is concerned, etc., should be taken into consideration."
(d) In the matter reported as Jagbir Singh v. Haryana State Agriculture Mktg. Board, (2009) 15 SCC 327, the court has stated :
"7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. ...
14. An order of retrenchment passed in violation of Section 25F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished ID No. 2687/16. 14/15 between a daily wager who does not hold a post and a permanent employee."
17. The claimant deposed that he was jobless since termination of his service. Admittedly, he was working in Accounts Section. There is no dearth of job for accountants in shops, agencies, business houses, other institutions requiring accountants. If he had tried seriously, he would have got job of same status and salary. His deposition that he is jobless is general and vague in nature. Taking into account all these facts, a lumpsum compensation of Rs.1,20,000/ (Rupees One Lac and Twenty Thousand Only) is granted to him. The management is directed to pay the said amount to him within one month from the date of publication of the award, failing which it shall be liable to pay interest on it @ 9% per annum from today till its realization. Parties to bear their own costs. Reference is answered accordingly. Award is passed accordingly.
18. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication. File be consigned to Record Room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 27.07.2016. POLCXVII/KKD, DELHI.
ID No. 2687/16. 15/15