Delhi District Court
Dhirendra Chaudhary vs M/S V.R.L. Logistics Limited on 13 November, 2024
IN THE COURT OF SHRI ARUN GOEL,
PRESIDING OFFICER : LABOUR COURT - X
ROUSE AVENUE COURTS : NEW DELHI
LID No. 3892/18
SH. DHIRENDRA CHAUDHARY,
AGE ABOUT 36 YEARS
S/O SH.SHANKAR CHAUDHARY
R/O H. NO. 8, PIPAL CHOWK,
DALLU PURA,
DELHI-110096.
C/O SANTOSH SINGH, ADVOCATE
CH. NO. L-8, K.L. SHARMA BLOCK,
GATE NO. 2, TIS HAZARI COURTS,
DELHI-110054
.... WORKMAN
Versus
SH.VIJAY SHANKESHWAR
DIRECTOR/OWNER OF :
1.M/S V.R.L.LOGISTICS LIMITED 3807,SARAI, PHOOS, NEAR KALI MATA MANDIR, OPPOSITE QUEEN MARRY SCHOOL, TISHAZARI DELHI-110054.
2.M/S V.R.L.LOGISTICS LIMITED OFFICE NO.40,1ST FLOOR, RANI JHANSI ROAD, OPPOSITE JHANDEWALAN MATA MANDIR, JHANDEWALAN, NEW DELHI-110055 ..... MANAGEMENTS LID No. 3892/18 Page 1/27 Date of institution of the case : 18.10.2018 Date of passing the Award : 13.11.2024 A W A R D:
1. Present case has been filed by the claimant under Section 2-A (1) (without reference) of the Industrial Disputes Act 1947 (herein after referred to as 'ID Act'). The case of the claimant is that the workman had been in continuous employment of the Management w.e.f. 10.02.2008 at the post of "Field Workman" and his last drawn wages were Rs.21,100/- per month. It is further stated in the claim that both the managements were working in different place, however, their nature of business was same. It is further stated in the claim that the managements used to take work from the workman in both addresses and the workman used to work as per the directions of the managements without any distinction to the name of the management.
During the course of employment, he was working with diligence, sincerity and honesty and he never gave any chance of complaint to management. Thus, the service record of workman was uninterrupted, meritorious and unblemished.
2. It is further stated that management had not been providing legal facilities to the workman during his service tenure such as appointment letter, attendance card, attendance register, E.S.I, bonus etc. The management was also taking overtime work from the workman but was LID No. 3892/18 Page 2/27 not paying any overtime wages.
3. Being annoyed with the repeated demands of the workman for providing the legal facilities along with overtime wages and back wages, the management terminated the workman from his services on 24.11.2017 illegally, arbitrarily and unjustifiably without any notice or information and also did not pay the retrenchment compensation and notice pay to the workman. The management also withheld the earned wages of the workman.
4. Being aggrieved, workman filed a complaint dated 30.11.2017 before the Conciliation Officer, Labour Office, Nimri Colony, Ashok Vihar-4, Delhi-52 through Union against the management. Labour Inspector visited the management establishment and tried to impress upon the management to take the workman back on duty and pay his earned wages but the management despite accepting the workman as its employee, refused for the same.
5. It is further stated in the claim that the workman had also sent a demand notice dated 30.11.2017 and 28.12.2017 to the management through speed post for reinstatement and payment of outstanding wages, to which the management did not give any reply.
6. Thereafter, the workman filed his statement of claim on 05.02.2018 LID No. 3892/18 Page 3/27 before Conciliation Officer, Labour Office, Nimri Colony, Ashok Vihar-4, Delhi through Union, however, due to adamant attitude of the management, conciliation failed and Conciliation Officer gave failure report dated 13.09.2018.
7. It is further stated that the workman was unemployed since the date of his illegal termination and despite efforts he did not get employment anywhere and prayed that the Management be directed to reinstate him to services with full back wages and consequential benefits.
8. Notice of the claim was issued to the management for filing of written statement. The management had filed its amended written statement wherein they have stated that the claimant was appointed in the management company in the year 2008 as a Branch Manager drawing a salary of Rs.7,200/- per month. It is further stated that the claimant was an employee of the management from 2008 to 2012 and that undoubtedly the claimant was in the managerial and administrative capacity as a Branch Manager. Thus, the claimant is not a workman within the definition of Industrial Disputes Act, hence, the claim petition of the claimant is liable to be dismissed. It is further stated in the written statement that in the year 2012, the claimant resigned from the management company for some personal reasons. The claimant's resignation dated 17 September 2012 was duly accepted by the management company and an official order of relieving the claimant of LID No. 3892/18 Page 4/27 his duties was provided to him.
9. It is further stated in the written statement that the claimant in the year 2013 expressed his desire to join the management company again and presented his resume/CV to the management company. The claimant's representation was considered by the management company and was duly accepted. It is further stated that the appointment of the claimant in the year 2013 was a fresh appointment. The claimant after having given his resignation in the year 2012, left the management company and all of his dues were paid to him. The management company again hired the claimant in the year 2013 after considering his application and the CV/resume. The management company also issued an appointment letter to the claimant setting out the terms & conditions for the job.
10. It is further stated in the written statement that the management company in the year 2017 transferred the claimant to one of its branches at Sidhrawali Transhipment in Haryana under Transfer Order No. HRD/21811 dated 15.12.2017. It is further stated that the appointment letter clearly states that the management company can transfer any of its employee in its branches spread throughout the country. The claimant, after coming to know of his proposed transfer, stopped coming from November 2017, remained unauthorized absent without giving any reason of his absence to the management company.
LID No. 3892/18 Page 5/27The management company sent a notice dated 12.12.2017 stating that the absence of the claimant is objectionable and that the claimant should report to the management company within 7 days, failing which appropriate actions may be taken against the claimant. The terms and conditions are binding on the employees and they cannot refuse the transfer, however, the claimant remained absent from November and did not come to work again.
11. It is further stated in the written statement that the management company, on January 2018, sent a show-cause notice to the claimant asking for a written explanation for various acts of misconduct including his absence. It is further stated that the claimant had not been diligent at his work and also the management company found discrepancy in its financial report and the same was communicated to the claimant as he was responsible for the same. The claimant apologized for the same and assured the management company that such thing will never repeat. The said discrepancy was also mentioned in the show-cause notice sent in January 2018. The claimant in November 2017 on being transferred stopped coming and in haste went to Labour Commissioner praying his transfer be set aside.
12. It is further stated in the written statement that in para 1 of the statement of claim filed by the workman, it is stated that he has been in the continuous employment of the management w.e.f. 10.02.2008 and LID No. 3892/18 Page 6/27 this is ex-facie incorrect for the reasons mentioned in the written statement. It is further stated that the Labour Commissioner sent a notice to the management company for its reply and the management appeared before the said officer and filed its reply categorically stating the same facts mentioned in their written statement. The management admitted that the workman had sent two demand notices dated 30.11.2017 and 28.12.2018, however, it is stated that the workman was not entitled to the back wages as the service provided by the workman was not a continuous one. The claimant remained absent from the last week of November, 2017 and did not join again. It is further stated that all the averments and submissions made by the workman are false and frivolous and prayed that the claim of the workman is liable to be dismissed.
13. Rejoinder has been filed on behalf of the workman to the written statement filed on behalf of the management wherein he reiterated and reaffirmed the contents of his statement of claim and denied the contentions made in the written statement filed on behalf of the management.
14. After completion of pleadings issues were settled vide order dated 17.01.2020:
"1. Whether the service of the workman has been terminated illegally and/or unjustifiably by the management?....OPW LID No. 3892/18 Page 7/27
2. Whether the workman himself has abandoned his job?..OPM
3. Relief. "
15. Thereafter, the matter was listed for workman's evidence. On 10.05.2022, WW-1 has tendered his affidavit Ex.WW1/A and relied upon the following documents: (i) certified copy of bank statement of claimant is Ex. WW-1/1 (Seven pages), (ii) Carbon copy of complaint dated 30.11.2017 addressed to Conciliation Officer, Nimri Colony, Ashok Vihar, Delhi Ex. WW-1/2, (iii) Carbon copy of demand notice dated 30.11.2017 addressed to management Ex. WW-1/3, (iv) Carbon copy of demand notice dated 28.12.2017 addressed to management Ex. WW-1/4. (v) Original failure report dated 05.02.2018 Ex. WW- 1/6. He was cross-examined at length by Sh. Ranvir Singh, AR for the management. Thereafter, the workman evidence was closed vide separate statement of the workman on 02.08.2022. Thereafter, matter was listed for management evidence.
16. On 19.11.2022 MW-1 Sh. Surendra Nayak, has tendered his evidence by way of affidavit Ex.MW1/X and relied upon the following documents: (i) Ex.MW1/A (OSR) copy of resignation of the claimant dated 17 September 2012, (ii) Ex.MW1/B(OSR) copy of office order of the management company dated 26 September 2012 accepting and relieving the claimant, (iii) Ex.MW1/C (OSR) copy of resume/CV of LID No. 3892/18 Page 8/27 the claimant, (iv) Ex.MW1/D (OSR) copy of the new appointment letter dated 01.02.2013, (v) Ex.MW1/E(OSR) is copy of notice dated 12.12.2017, (vi) Ex.MW1/F(OSR) copy of transfer order dated 15.12.2017, (vii) Ex.MW1/G (Colly). (OSR) is copy of the show cause 29.01.2018, (viii) Copy of attendance sheet of claimant is Mark-H (Colly), (ix) Copy of salary slip of claimant is Mark-I (Colly). He was cross examined at length by Sh. Santosh Singh, AR for the workman. During the course of cross examination, on 31.10.2023 MW-1 has produced the following documents: (i) resignation letter of the workman dated 17.09.2012 which is Mark-J, (ii) Copy of internal transfer order dated 21.11.2017 which is Mark 'K', (iii) Copy of salary slip in the month of September 2017 which is Mark 'L' (colly 3 pages),
(iv) Copy of attendance sheet which is Mark 'M' (colly 4 pages), (v) Copy of appointment letter dated 01.02.2013 which is Mark 'N', (vi) Copy of appointment letter dated 01.03.2008 which is Mark 'O', (viii) Copy of officer order dated 26.09.2012 which is Mark "P", (ix) Copy of attendance sheet which Mark Q (colly 6 pages). On 05.03.2024 he further produced the following documents: (i) Mark-J resignation letter of workman dated 17.09.2012 as Ex. MW1/A (OSR) already exhibited vide order dated 19.11.2022, (ii) Mark-N appointment letter dated 01.02.2013 as Ex. MW1/D (OSR) already exhibited vide order dated 19.11.2022, (iii) Mark-P copy of office order dated 26.09.2012 as Ex. MW1/B (OSR) already exhibited vide order dated 19.11.2022. Thereafter, vide separate statement of MW-1 Sh. Surendra Nayak, LID No. 3892/18 Page 9/27 management evidence was closed and the matter was listed for final arguments.
17. Arguments heard on behalf of both the parties. In the light of evidence available on record and submissions made by both the parties, my issue-wise findings are as under:
ISSUES NO. 1 AND 218. Both these issues are decided together. In the present case, the workman has stated that he was working at the post of "Field Workman" with the management w.e.f. 10.02.2008 with the last drawn salary @ Rs.21,100/- per month. It is further stated that the management was not providing with legal facilities and also not giving payment of over time and when he demanded the same his services were illegally terminated on 24.11.2017. Thereafter, workman lodged a complaint before Conciliation Officer on 30.11.2017 and also sent demand notice dated 30.11.2017 and 28.12.2017 upon the management but neither the demand notice was complied nor any reply was given to the demand notice. Thereafter, workman filed statement of claim before the Conciliation Officer on 05.02.2018, but the conciliation resulted in failure and Failure Report dated 13.09.2018 was given.
19. Management, on the other hand, had not denied that the workman was working with the management in the year 2008, however, it is LID No. 3892/18 Page 10/27 stated that the workman was working as a Branch Manager and he gave resignation on 17.09.2012. Thereafter, in the year 2013 he expressed his willingness to rejoin the company and submitted his documents. He was again reappointed vide letter dated 01.12.2013. In the year 2017, he was transferred to one of the Branch of the management at Haryana vide letter dated 15.12.2017, but the workman after coming to know about the proposed transfer absented himself from duties in the month of November, 2017. A notice dated 12.12.2017 was also issued to the workman to rejoin duties within 7 days but he failed to do so. A show cause notice dated 29.01.2018 was issued to the workman but the workman failed to rejoin his duties. He had abandoned his duties with the management. Thus, the employer employee relationship has been admitted by the management.
20. The management has claimed that the workman had resigned in the year 2012. The workman in his rejoinder had denied this fact. During cross examination the management had put the resignation letter dated 17.09.2012 to the workman, who denied his signature on the same. He also denied the CV submitted for rejoining in the year 2013. As the workman had denied these documents, the onus was upon the management to prove that these documents bear the signature of the workman. However, the management had not produced on record any expert witness to prove the signature of the workman on these documents. The management had examined Sh. Surendra Nayak as LID No. 3892/18 Page 11/27 MW-1, who admitted that he does not know where the alleged resignation Ex.MW1/A was prepared. He also submitted that Ex.MW1/C, which is the CV of the workman and Ex.MW1/D, which is letter of appointment were not prepared in his presence. The management had stated that it is providing all the legal facilities to the workman. In that case, they could have brought on record documents like PF/ESI contribution to show that during the period i.e., 17.09.2012 and on his alleged rejoining on 01.02.2013, the workman was not working with the management. Accordingly, the management has not been able to prove this fact.
21. The management has further alleged that the workman was a Branch Manager and he was working in the managerial and administrative capacity and is not covered under the definition of workman as per the ID Act. As the management had taken this objection that the workman is not covered under the ID Act, the onus was upon them to prove on record to show that he was working under Administrative/Supervisor/Managerial capacity. However, no document has been placed on record by the management. MW-1 during his cross examination, has admitted that the workman was looking after fieldwork. Even if, the duty of the workman was having some supervisory capacity but the major part of his duty was fieldwork, in that case, he would fall within the definition of workman. There is nothing on record to establish that he was doing any LID No. 3892/18 Page 12/27 supervisory/managerial duties.
22. Another contention raised by the management is that the workman had abandoned his services. The workman has stated that he lastly worked with the management on 24.11.2017 and his services were terminated. MW-1 in his cross examination has admitted that last date of working of the workman with the management was 24.11.2017. The workman has further stated that he had filed a complaint before the Conciliation Officer dated 30.11.2017. Management had admitted that a complaint was filed dated 30.11.2017 by the workman before the Conciliation Officer. Management has further admitted demand notice dated 30.11.2017 was also sent by the workman.
23. Management has stated that the workman had stopped coming for his duties due to his proposed transfer to Haryana. Management has filed on record the transfer letter Mark-X6 dated 15.12.2017. Perusal of the transfer letter reveals that it is dated 15.12.2017, however, the workman has allegedly terminated on 24.11.2017. The Conciliation proceedings have already started by him on 30.11.2017, in that case, the contention of the management that he had stopped coming from duties due to his transfer does not appears to be plausible. Moreover, the workman has denied that he has received transfer letter. Perusal of the transfer letter reveals that it does not bear the signature of the workman. The management further stated that they had issued a show cause notice LID No. 3892/18 Page 13/27 Mark-X5 to the workman asking him to report for his duties but he failed to report for his duties, which shows that he has abandoned his services. The workman denied the receipt of Mark-X5. The Mark X-5 does not bear the signature of workman. It is also useful to have relevant part of contents of X-5 before us. There is a stamp at the bottom of Mark-X5 which states as follows: "not to allow him for duty without our permission in writing." . This stamp on the Mark-X5 reveals the intention of the management that they do not want the workman to join his duties. Moreover, nothing has been produced on record to show that Mark-X5 was in fact delivered to the workman. The management has further alleged that they had issued a show cause notice dated 29.01.2018 which Ex.MW1/G. The workman has denied the receipt of Ex.MW1/G. Management has also annexed acknowledgment receipt to show that the same is received by the workman. Perusal of the acknowledgment receipt reveals that the same does not bear the stamp of the post office, hence, it is not a reliable evidence to establish that Ex.MW1/G was served upon the workman. The Ld. AR for the management has also relied upon three judgments to support their case stating that it has to be presumed that the workman has not reported for his duties and abandoned his services.
(i) MCD vs. Chattarbhuj Bhushan Sharma reported as 2006 (92) DRJ 171;
(ii) State of Haryana vs. Om Prakash and Anr reported as (1998) 8 Supreme Court Cases 733;
(iii) Sukhdev Singh vs. Delhi Development Authority reported as 2011 SCC Online Del 4680;
LID No. 3892/18 Page 14/2724. The first judgement titled as MCD vs. Chattarbhuj Bhushan Sharma (supra) relied upon by the management is not applicable to the facts of the present case. Therein, the workman has not joined his duties after being transferred from one place to another. The receipt of transfer order upon the workman has been proved. Herein, the management has failed to prove that the transfer order has ever been served upon the workman, moreover the workman has initiated the conciliation proceedings even before the transfer by the management.
25. The second judgement relied upon by the management titled as State of Haryana vs. Om Prakash (supra) is also not applicable to the facts of the present case. Therein, it was proved that the workman has ceased to report for his duties. Management has not placed on record any evidence to establish that the workman has ever ceased to report for duty. Infact, filing of proceedings before the Conciliation Officer immediately after the alleged termination on 24.11.2017 shows that the workman has never abandoned his duties and he was willing to serve with the management. On the other hand the stamp annexed at the bottom of the Ex.MW1/G shows that the management was not willing to allow the workman to join his duties without their permission.
26. Management has also relied upon the judgement titled as Sukhdev Singh vs. Delhi Development Authority (supra) and this judgment is LID No. 3892/18 Page 15/27 also not applicable to the facts of the present case. Therein, the management had sent reminders to the workman to join his duties. Herein, the management has failed to establish that any reminder has been sent to the workman to join his duties.
27. Thus, the defence taken by the Management is of abandonment of service. In the case of GT Lad vs. Chemical Fibres of India, AIR 1979 SC 582, Hon'ble Supreme Court framed a specific question as regards true meaning of the expression "abandonment of service" and held as under:
"In the Act, we do not find any definition of the expression "abandonment of service".In the absence of any clue as to the meaning of the said expression, we have to depend on meaning assigned to it in the dictionary of English language. In the unabridged edition of Random House Dictionary, the word "abandon" has been explained as meaning to leave completely and finally; forsake utterly, to relinquish, renounce, to give up all concern in something. According to the Dictionary of English Law by Earl Jowitt (1959 edition) "abandonment" means "relinquishment of an interest or a claim".
According to Blacks Law Dictionary "abandonment" when used in relation to an office means "voluntary relinquishment". It must be total and under such circumstances as clearly to indicate an absolute relinquishment. The failure to perform the duties pertaining to the office must be with actual or imputed intention, on the part of the officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the party, and is a question of fact. Temporary absence is LID No. 3892/18 Page 16/27 not ordinarily sufficient to constitute as "abandonment of office".From the connotations reproduced above it clearly follows that to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same. Abandonment or relinquishment is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf".
28. In the case of Competition Printing Press vs. Jai Prakash Singh, 2001 SCC Online Bom 262, Hon'ble Bombay High Court and in the case of Sankaranarayanan, P.I., Ernakulam vs. Spices Board Kochi, 1999 II LLJ 592, Hon'ble Kerala High Court held that abandonment of service is a question of intention which has to be gathered from conduct of the employee.
29. Perusal of the above judgements reveal that the fact of abandonment has to be established by the management. The management herein failed to establish the fact of abandonment of services by the workman. On the other hand, conduct of the workman in filing conciliation proceedings and sending demand notice shows that he has not abandoned his job and is willing to work with the management. Hence, the workman has been able to prove that his services have been illegally terminated. The management has also admitted that no domestic enquiry has ever been conducted against the workman. Hence, both these issues are decided in favour of the workman.
LID No. 3892/18 Page 17/27RELIEF :
30. The workman in this case has prayed for reinstatement and back wages with all consequential benefits. The AR for the claimant has relied upon the judgment of Hon'ble supreme court tittled as Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 to press for the relief of reinstatement and full back wages. It is further argued that in para 38 the Hon'ble court has stated that in case of wrongful termination, reinstatement is the normal rule. The relevant part of the Judgment is reproduced as follows:
"38. The propositions which can be culled out from the aforementioned judgments are:
38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule."
31. The above mentioned Judgment of the Hon'ble court was discussed by the Hon'ble Delhi High Court in case tittled as Mohit Jain v. Thomas Cook (India) Limited 2014 SCC OnLine Del 7322. Wherein the Court has made following observation. The same are as follows "3. In the case of Deepali Gundu Surwase v.Kranti Junior Adhyapak Mahavidyala (D.ED.), (2013) 10 SCC 324, the Hon'ble Supreme Court has observed that in a very nature of things there cannot be a strait jacket formula for awarding relief of reinstatement with back wages. All relevant considerations will enter the verdict. More or less, it would LID No. 3892/18 Page 18/27 be a motion addressed to the discretion of the Tribunal."
32. Thus, the grant of relief of reinstatement and back wages has to be given by taking into account the facts of each case. In recent case of Punjab National Bank vs. Manoj Kumar in W.P.(C) 4770/2007 decided 16th October, 2024, the Hon'ble Delhi High Court while dealing with the relief of reinstatement and full back wages has observed as follows:
"Reinstatement is an act which aims to rectify an act of wrongful termination by restoring an employee to their previous position on the same terms and conditions of their appointment. However, the settled position of law is clear with regard to the said relief as the Courts in a catena of judgments, have repeatedly held that the ordinary principles of reinstatement do not automatically apply in all cases."
52. Undoubtedly, if a termination is found to be violative in terms of non-compliance of prerequisites as mentioned under Section 25F of the ID Act, the relief of reinstatement ordinarily follows, however, the jurisprudence qua the same has shifted in the recent times as the Courts have consistently held that the said relief is not automatic and the workman shall be fairly compensated in lieu of the relief of reinstatement.
53. Reliance in this regard can be placed upon the judgment passed by the Hon‟ble Supreme Court in Jagbir Singh v. Haryana State Agriculture Marketing Board and Another , wherein it was held that the relief of reinstatement shall not be granted automatically, and the relief to be granted depends upon the peculiar facts and circumstances wherein the Labour Court may also award monetary compensation instead of reinstatement to meet the ends of justice. The relevant extracts of the same are as follows:
"7. It is true that the earlier view of the Supreme Court LID No. 3892/18 Page 19/27 articulated in many decisions reflected the legal position that if the termination of an employee was 6 (2009) 15 SCC 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, the Supreme 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. An order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not be automatically passed.
The award of reinstatement with full back wages in a case where the workman particularly a daily wager, who has completed 240 days of work in a year preceding the date of termination has not been found to be proper. Compensation instead of reinstatement has been held to meet the ends of justice. The Supreme Court has distinguished between a daily wager who does not hold a post and a permanent employee. ****
14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25- F 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 between a daily wager who does not hold a post and a permanent employee."
LID No. 3892/18 Page 20/2754. The finding of the learned Tribunal qua the grant of relief of reinstatement to the present workman, with full back wages, was opposed by the learned counsel for the PNB. He placed reliance upon a recent decision passed by this Court in AIIMS v. Ashok Kumar (Supra), wherein it was held as follows:
"25. Bearing in mind the reasoning afforded by the learned Labour Court, this Court deems it imperative to briefly state the position of law as to in what circumstances may the Court grant the relief of compensation in lieu of reinstatement. The Hon'ble Supreme Court in State of Uttarakhand v. Raj Kumar, (2019) 14 SCC 353, observed as to how and when must the Labour Court/Tribunal grant the relief of compensation in lieu of reinstalment along with back wages. The relevant paragraphs are reproduced herein below:
".....9. In our opinion, the case at hand is covered by the two decisions of this Court rendered in BSNL v. Bhurumal [BSNL v. Bhurumal, (2014) 7 SCC 177 : (2014) 2 SCC (L&S) 373] and Distt. Development Officer v. Satish Kantilal Amrelia [Distt. Development Officer v. Satish Kantilal Amrelia, (2018) 12 SCC 298 : (2018) 2 SCC (L&S) 276]. 10. It is apposite to reproduce what this Court has held in BSNL [BSNL v.
Bhurumal, (2014) 7 SCC 177 : (2014) 2 SCC (L&S) 373] : (SCC p. 189, paras 33-35)
33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are LID No. 3892/18 Page 21/27 terminated illegally and/or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily- wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.
34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of nonpayment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] ]. Thus when he cannot claim regularisation and he has no right to continue even as a daily-wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.
LID No. 3892/18 Page 22/2735. We would, however, like to add a caveat here. There may be cases where termination of a dailywage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied......"
26. Upon perusal of the aforementioned judicial dictum, it is inferred that ordinarily when the termination is found to be illegal, the principle of grant of reinstatement with full back wages has to be applied as per the facts and circumstances of each case and shall not be awarded mechanically. It is further observed that termination of a daily-wage worker where, found illegal on account of procedural defects, reinstatement with back wages is not to be construed automatically rather, in the interest of justice, the workman shall be granted a relief in the form of a lump sum monetary compensation as it is more appropriate.
55. The learned counsel for the PNB has also relied upon another judgment of the Hon‟ble Supreme Court passed in Senior Superintendent Telegraph (Traffic) Bhopal v. Santosh Kumar Seal and Ors.7 , wherein a similar view was taken that even if the termination of the workman is found to be illegal, being in violation of Section 25F of the ID Act, the relief of reinstatement shall not be mechanically granted. The workmen LID No. 3892/18 Page 23/27 therein were engaged as daily wagers, 25 years before the date of judgment, who worked for a period of 2 to 3 years, therefore, the reinstatement with full back wages granted by the learned Tribunal was found to be unjustified and the workmen were awarded a compensation amount to the tune of Rs. 40,000/- each in lieu of the services rendered by them during the relevant period.
56. The principle discussed herein above has also been affirmed by the Hon'ble Supreme Court in the judgment M.P. Admn. v. Tribhuban, wherein it was directed that that non- compliance of Section 25F of the ID Act entitles a workman for some relief and such relief does not necessarily has to be the reinstatement, instead, if the Court deems fit, compensation may be awarded.
57. Therefore, it is transpired that the Hon‟ble Supreme Court, in a catena of decisions, has time and again substituted the direction of reinstatement with full back wages by monetary compensation."
33. The workman in this case is engaged in a private company and the nature of the job performed by the workman is of ordinary character. The management has already transferred the workman to new place which is opposed by the workman and in that case if the workman is reinstated in the job. It will result in fresh industrial dispute as the workman will not want to work at new place of posting. Keeping in view these facts the court is not inclined to grant relief of reinstatement to the workman.
34. As regards the back wages, the law is settled by the Hon'ble Supreme LID No. 3892/18 Page 24/27 Court of India in case of UP State Brassware Corporation Ltd. vs. Uday Narain Pandey, JT 2005 (10) SC 344, wherein it has been held :
"The Industrial Courts while adjudicating on disputes between the management and the workman, therefore, must taken such decisions which would be in consonance with the purpose the law seeks to achieve. When justice is the buzzword in the matter of adjudication under the Industrial disputes act, it would be wholly improper on the part of the superior Courts to make them apply the cold letter of the statutes to act mechanically. Rendition of justice would bring within its purview giving a person what is due to him and not what can be given to him in law. A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance. The Court, therefore, emphasised that while granting relief, application of the mind on the part of the Industrial Court is imperative. payment of full back wages, therefore, cannot be the natural consequence."
35. As far as relief of full back wages is concerned, it does not appear plausible that the workman would not be engaged in some kind of work. He has not produced any evidence to show the efforts made by him to find new employment. The Hon'ble Supreme court in judgement titled as Rajasthan State Road Transport vs Phool Chand (D) through LRs, AIR 2018 Supreme Court 4534 while dealing with the relief of full back wages has held as under:
"11. In our considered opinion, the Courts below completely failed to see that the back wages could not awarded LID No. 3892/18 Page 25/27 by the Court as of right to the workman consequent upon setting aside of his dismissal / termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favor and directed his reinstatement in service.
12.It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee."
36. In view of the above stated facts and law, the court is of the considered opinion that reinstatement of the workman could not be justified. The justice would be served by granting him lump-sum compensation instead of reinstatement. Taking into account, the period of the services of the workman, the nature of duties performed by him and other surrounding circumstances, an award of Rs.2,50,000/- granted in favour of the workman which includes the cost of litigation.
37. The management is directed to pay the said amount of award within a period of one month from the date of publication of award failing which the management shall be liable to pay an interest of 6% per annum from the date, it becomes due and till realization order LID No. 3892/18 Page 26/27 accordingly.
38. A copy of the award be sent to the appropriate Government for its publication as per rules with regard to the Failure Report No. No. ID/35/ND/CO-II/2018/1032-1034 dated 13.09.2018.
39. File be consigned to record room Digitally signed ARUN by ARUN GOEL Announced in open court Date:
GOEL 2024.11.13
on Dated: 13.11.2024 10:44:52 +0530
(Arun Goel)
District Judge
POLC- X/RADC
New Delhi
LID No. 3892/18 Page 27/27