Delhi District Court
Sh. Ram Girish vs . M/S. Guru Designs & Ors. Did No. 47/07 on 14 December, 2012
Sh. Ram Girish Vs. M/s. Guru Designs & Ors. DID No. 47/07
IN THE COURT OF DR. P S MALIK THE PRESIDING OFFICER
IN
LABOUR COURT XI, KARKARDOOMA COURTS, DELHI
Computer ID No. 02402C0130922007
Type of Case Direct Industrial Dispute
Date of Institution 13.02.2007
Evidence concluded on 30.01.2012
Final Arguments heard on 30.11.2012
Date of Award 14.12.2012
WORKMAN Vs. MANAGEMENT
Sh. Ram Girish S/o Sh.suresh 1. M/s. S. M. International, 84,
Prasad, C/o Trade Union Co East Enclave Road, Punjabi Bagh,
ordination Center, S - 221/ 161, New Delhi.
Gali No. 4, Vishnu Garden, 2.M/s. Guru Designs, 23 / 12, East
Khayala, New Delhi. Punjabi Bagh, New Delhi.
3. M/s. Pinku Overseas, 2/8, East
Punjabi Bagh, New Delhi.
PRESENT:
None for the parties.
AWARD :-
1. The workman Sh. Ram Girish filed this direct industrial dispute before this court
U/S 10 (4A) of the Industrial Disputes Act against three Managements i.e. (i) M/s.
S.M. International, (ii) M/s. Guru Designs and (iii) M/s. Pinku
Overseas.
2. As per her claim, the claimant Ram Girish claimed to have been
AWARD Page 1 of 18
Sh. Ram Girish Vs. M/s. Guru Designs & Ors. DID No. 47/07
working with the Management since 10.01.2001 as a "Pressman". He was getting
his last drawn wages as Rs.3400/ per month. In the initial claim he filed before the
court, he mentioned three different names of the Management establishments, but
subsequently he dropped one of them and has continued with his claim against two
establishments i.e. M/s. S.M. International and M/s. Guru Designs. He alleged that
initially he was appointed in the Management no. 1 M/s. S.M. International but
subsequently he was transferred in the Management no. 2 M/s. Guru Designs. After
his repeated demands he was given his ESIC card in which the name of the
Management and the date of appointment was wrongly mentioned. When he
requested the Management to correct the same, they got enraged and without any
other legal formalities they terminated his services on 04.01.2007. In doing so they
did not pay him the earned wages of December, 2006. The claimant raised an
industrial dispute and brought the same before this court for adjudication.
3. Thereafter separate written statements were filed on behalf of both the respondent /
Managements. The Management no. 1 M/s. S.M. International specifically pleaded a 'no relationship' case to this workman and hence denied his entire claim.
4. The Management no. 2 M/s. Guru Designs filed its written statement and stated that the workman joined its service on 03.12.2004. He was getting Rs.3200/ per month. Subsequently he was alloted the ESI and the PF facilities also. According to the Management the claimant worked with them till 31.03.2006. And on that very date he showed his intention to resign from the services. Thereafter he tendered a resignation tion dated 31.03.2006. As per this written statement after the aforesaid resignation there was no claim left against the answering Management.
5. In this background of pleadings of the parties, the Ld. Predecessor vide his orders dated 11.12.2007 framed the following issues : AWARD Page 2 of 18 Sh. Ram Girish Vs. M/s. Guru Designs & Ors. DID No. 47/07
1. Whether there is any employer employee relationship between the parties or not?
2. Whether the services of the workman were terminated illegally and / or unjustifiably by the Management and if so, to what relief was he entitled? OPM.
3. Relief.
6. On 18.02.2008 the issues were reframed as follows :
1. Whether there exist any employe - employee relationship between the Management no. 1 and the workman.
2. Whether the services of the workman were terminated illegally and unjustifiably or he had tendered his resignation on 31.03.2006 to the Management no. 2 and had settled his accounts with the Management no. 2 fully and finally?
3. Relief.
7. The workman thereafter examined him as WW1 and almost reiterated his claim in material aspects. He relied upon five documents. Ex. WW1/1 is the demand notice. Ex. WW1/2 is its postal receipt. The workman filed a bunch of papers purportedly the leave applications tendered by him to the Management. These leave applications are collectively exhibited as Mark A to Mark E. Page no. 8 and 9 of the attendance sheet of 16.05.2205 were exhibited a Ex. WW1/3. An ESI card was filed as Ex. WW1/4. Ex. WW1/5 is copy of PF slip.
8. These documents from Mark A to Mark E were made the subject matter of the cross
- examination by the ld. counsel for the Management. The workman stated that he did not know the contents of Mark A. He further admitted that Mark A did not have any stamp of M/s. S.M. International. He also admitted that Mark B did not contain his signatures, but it bore the signatures of AWARD Page 3 of 18 Sh. Ram Girish Vs. M/s. Guru Designs & Ors. DID No. 47/07 the Manager Mr. Vinay Kumar. It was further admitted that Mark C and Mark D did not bear the name of M/s. S.M. International. Document Mark E was admitted as a recommendation letter for the appointment of one Sh. Dilbagh Singh. On Ex. WW1/3 it was admitted that the name of the Management was not mentioned. Ld. counsel for the Management also tried to get a view of this witness regarding comaprison of his signatures on various documents including those were relied upon by the claimant in evidence and his claim. Ld. counsel for the Management continued to grill this workman under his cross - examination. On the third date of cross - examination documents Ex. WW1/M1x, Ex. WW1/M2x, Ex. WW1/M3x and Ex. WW1/M5x were put to him. He admitted his signatures on these documents. In fact the Management put another document Ex. WW1/M4x. But this witness denied his signatures on the said document at points A and B. In fact this is a set of five documents out of which Ex. WW1/M1x is purportedly an application for an employment. It bears the date of 03.12.2004. Ex. WW1/M2x is the copy of a letter of appointment appointing him as a Pressman on 03.12.2004 on a salary of Rs.3200/ per month. Document Ex. WW1/M3x is purportedly a resignation letter. Ex. WW1/M4x is a receipt of settlement. Ex. WW1/M5x is a detailed calculation of settlement calculating his due amount on 31.03.2006. Ex. WW1/M6x and Ex. WW1/M7x are two vouchers whereby this claimant / workman purportedly received aforesaid amount as settled in Ex. WW1/M4x and calculated in Ex. WW1/M5x. The workman denied his signatures on Ex. WW1/M4x, Ex. WW1/M6x and Ex. WW1/M7x. However, he admitted his signatures on Ex. WW1/M1x, Ex. WW1/M2x, Ex. WW1/M3x and Ex. WW1/5x.
9. He denied the Management's suggestion that the purported resignation letter Ex. WW1/M3x was given with an intention to resign from AWARD Page 4 of 18 Sh. Ram Girish Vs. M/s. Guru Designs & Ors. DID No. 47/07 the services. He denied a suggestion to have given Ex. WW1/M3x on 31.03.2006. However, he could tell the precise date in 2007 upto which he used to work there with the Management.
10. Thereafter, the Management examined one Dr. K.C. Virmani a partner of M/s. Guru Designs as MW1. He relied upon a partnership deed showing him to be a partner with one Ms. Rita Gupta W/o Sh. Munish Gupta and a minor Ms. Rinki Gupta D/o Sh. Minish Gupta. This MW1 was examined on behalf of M/s. Guru Designs.
11. MW1 during his cross - examination denied a suggestion that M/s. Guru Designs and M/s. S.M. International were both the sister concerns. He admitted that the workman worked in M/s. Guru Designs as a Pressman from 03.12.2004 to 31.03.2006. He admitted that the documents Mark A to Mark D pertained to M/s. S.M. International, but he stopped further to say anything about these documents because he stated to be not concerned with M/s. S.M. International. However, he admitted that the application Ex. WW1/M1x was given to M/s. Guru Designs on 03.12.2004.
12. One Sh. Praveen Kumar was examined on behalf of the Management M/s. S.M. International as MW2. He relied upon a document Ex. MW2/1 which is an authority letter on behalf of the Management M/s. S.M. International. During the cross - examination he stated that he was a Personnel Executive in M/s. S.M. International since December, 2009. He stated that he was issued an Icard by the said Management but the same was not shown by him in the court. During the cross - examination the workman put him a document Ex. MW2/W1x and asked him to speak about the people named therein. He stated that he could not speak anything. He joined the Management in December, 2009. He admitted that one Mr. Munish Kumar Gupta was a partner of M/s. AWARD Page 5 of 18 Sh. Ram Girish Vs. M/s. Guru Designs & Ors. DID No. 47/07 S.M. International.
13. The law related to the onus of proof in a labour adjudication was laid down by the Hon'ble Superior Courts in various cases.
14. The Hon'ble Supreme Court in case Workmen of Nilgiri Coop. Marketing Society Limited Vs. State of Tamil Nadu & Ors. 2004 LLR 351 has observed as follows :
49. "It is a well settled principle of law that the person who sets up a plea of existence of relationship of employer and employee, the burden would be upon him."
50. "In N.C. John Vs. Secretary Thodupuzha Talul Shopand Commercial Establishment Workers' Union and Others [1973 Lab. I.C. 398], the Kerala High Court held :
"The burden of proof being on the workmen to establish the employer - employee relationship an adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employer - employee relationship."
51. In Swapan Dos Gupta & Others vs. The First Labour Court of West Bengal and Others, [1975 Lab. IC 202] it has been held that "Where a person asserts that he was a workman of the Company, it is for him to prove the fact. It is not for the Company to prove that he was not an employee of the Company, but of some other person."
15. The law was also elaborated by the Hon'ble Delhi High Court in UCO Bank Vs. Presiding Officer & Another 1999 V AD (Delhi) 514 and in Automobile Association of Upper India Limited Vs. PO Labour Court & Anr. 2006 LLR
851.
16. In Automobile Association of Upper India Limited Vs. PO Labour Court & Anr.
(SUPRA) it was observed by the Hon'ble Delhi High Court that, 'it is well settled that the primary burden of proof to establish a plea rests on a person so claiming in this behalf reference can be appropriately made to the judicial pronouncement in III (2001) SLT 561; (2001) 9 SCC 713 (715), State of Gujarat & Ors. Vs. Pratamsingh Narsinh Parmar, III (2004) SLT 180; 2004 LLR 351 (para 49), Nilgiri Coop. AWARD Page 6 of 18 Sh. Ram Girish Vs. M/s. Guru Designs & Ors. DID No. 47/07 Marketing Society Ltd. Vs. State of Tamil Nadu, 2001 LLR 148, Dhyan Singh Vs. Raman Lal, 1996 Lab. I.C.202, Swapan Vs. First Labour Court,West Bengal, and 1973 Lab. I.C. 398 N.C. John Vs. TTS & CE Workers Union. Thus burden lies on a person claiming the establishment to be an industry to place positive facts before the Court in this behalf. For this reason, the primary burden to establish the relationship of employment also lies on the workman who is claiming the same.'
17. In UCO Bank Vs. Presiding Officer & Another 1999 V AD (Delhi) 514 (SUPRA), it was held by the Hon'ble High Court, 'Now I shall deal with the second issue relating to burden of proof : Principles regarding burden of proof are stipulated in Chapter - VII of Indian Evidence Act, 1872 (Section 101 to 114A). General Principal, which is laid down in these sections particularly Section 101 and 102 is that he who asserts must prove i.e. burden of proof is the obligation to adduce evidence to the satisfaction of the Tribunal or Court in order to establish the existence or non - existence of a fact contended to by a party. Burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it, for a negative is usually incapable of proof. Dealing with aforesaid Principles contained in Indian Evidence Act, Mr. O.P. Malhotra in his book entitled "The Law of Industrial Disputes", Fifth Edition (Volume 1) Page - 842 states as under : 'The expression 'burden of proof' has two distinct and often blurred meanings viz. (i) the burden of proof as a matter of law and pleadings. This, burden, as it has been called, for establishing a case, whether by preponderance of evidence or beyond a reasonable doubt, and (ii) the burden of proof in the sense of introducing evidence. In the Indian Evidence Act, Sec. 101 uses the expression in the former sense while Sec. 102 uses it in the latter sense. The former type of onus viz. The burden of proof of the facts in issue is usually known as the general burden of proof or the burden of proof on pleadings. This type of burden of proof has been called by jurists, the 'legal burden', the legal or persuasive burden is the burden borne by the party who will loose the issue unless he satisfies the Tribunal of the facts to the appropriate degree of conviction and it is aptly termed the "Risk of Non Persuasion" by Vigmore. The phrase 'legal AWARD Page 7 of 18 Sh. Ram Girish Vs. M/s. Guru Designs & Ors. DID No. 47/07 burden' was coined by Lord Denning while the phrase 'persuasive burden' was used by Dr. Glanville Williams. Other jurists have referred to it as the "burden of proof on the pleadings". This burden is entitled to be called the legal burden because its incident is determined by the substantive law, and the adjective persuasive gives some indication of its real nature. The pleadings do not always indicate which party bears the burden, and the answer to a somewhat controversial question is assumed if it is said to be "fixed", for the epithet is designed to emphasis the fact that this burden does not shift in the course of a trial a matter of words about which there is room for two views in the case of issues to which certain rebuttable presumptions of law are applicable. The latter type of onus is called the professional or the tactical burden. The burden of proof in the first sense is fixed at the beginning of the trial by the state of pleadings and it is settled as a question of law. Remaining unchanged, throughout the trial exactly where the pleadings place it and never shifts in any circumstances whatsoever. The burden of proof in the second sense, however, constantly shifts as one scale of evidence or the other preponderates".
The point of consideration is as to whether these rules of evidence would be applicable even in adjudication pleadings under the Industrial Law. This question was decided by Supreme Court in the case of Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd. (1979) II LLJ 194 wherein Supreme Court observed that through the Adjudicatory Authorities under the Act have all the trappings of a court, they are not hide bound by the statutory provisions of the Evidence Act Section-11 (3) of the Industrial Disputes Act confers on them powers of a Civil Court under the Code of Civil Procedure only in respect of matters specified therein. Such Authorities are created for adjudication of Industrial Disputes between the parties arrayed before them. Their function being of a quasi - judicial nature, they have to adjudicate such disputes on the basis of pleadings of the parties and the evidence adduced before them in accordance with Rules of Natural Justice.
Therefore, any party appearing before anyone of such AWARD Page 8 of 18 Sh. Ram Girish Vs. M/s. Guru Designs & Ors. DID No. 47/07 Authorities must make a claim or demur the claim of the other side. When there is a burden upon the party to establish a fact so as to invite a decision in its favour, it has to lead the evidence. The obligation to lead evidence to establish an averment made by a party is on the party making the averment. The test would be who would fall if no evidence is led. Such party, therefore, must seek opportunity to lead evidence.
18. In the light of this law this court is of the view that the requirement of evidence by the workman and the Management is not simultaneous. It is a primary duty of the claimant to show that at least a prima facie case exists in his favour and thereafter if he succeeds in doing that the Management's evidence would be taken into consideration either in rebuttal or in the establishment of alternative factual circumstances put forward by it in defence.It is clear that burden of proving facts keeps shifting from one party to the other.
ISSUE NO. 1 :
19. In this issue this court has to adjudicate upon the factum if there existed any employer- employee relationship between the Management no. 1 and the workman.
20. Right from the beginning it was a stand of the Managements that these two are separate entities and are not related to each other. On the other hand, the workman kept on stressing that these two establishments were really one and working under the same Management with a deceptive separation between them. Earlier he used to work with the Management no. 1 M/s. S.M. International and subsequently he was transferred to the Management no. 2 M/s. Guru Designs. This is an interesting point that this workman initially impleaded a third employer M/s. Pinku Overseas also but subsequently dropped it because of some legal procedural hurdles. The initial stand of this workman was that all these separate establishments were basically the same Managements. Their names AWARD Page 9 of 18 Sh. Ram Girish Vs. M/s. Guru Designs & Ors. DID No. 47/07 were fictitious and a tool to deceive the legal proceedings.
21. On behalf of M/s. Guru Designs one Dr. K.C. Virmani was examined. He was a partner with the wife and daughter of one Sh. Munish Kumar Gupta. As per this witness MW1 this firm was working in the name of M/s. Guru Designs. On the other hand Sh. Munish Kumar Gupta had entered into a partnership agreement with Sh. Praveen Kumar MW2 as the later stated on oath before the court. One firm was in the name of wife and daughter of Sh. Munish Kumar Gupta and the other firm was in his own personal name. The partnership deed of the second firm M/s. S.M. International was not produced before this court. Therefore, it cannot be ascertained as to who else is a partner in that firm. Both of these two firms i.e. M/s. Guru Designs and M/s. S.M. International are being run by the members of the same family. What is the more significant just to create a partnership without incurring loss, he had introduced his minor daughter in M/s. Guru Designs. A minor cannot do business. Therefore, this partnership appears to be a tool to achieve some objectives other than those appearing on the face of Ex. MW1/1. Both these concerns i.e. M/s. Guru Designs and M/s. S. M. International in addition to being run by the same family appear to have been using the same common stationery as were relied upon by the workman in the form of documents Mark A to Mark D.
22. This file has been perused by the court. The original authority lettters were filed before this court on 19.04.2007. On that date the authority letter on behalf of M/s. S.M. International was filed under the signatures of Sh. Munish Kumar Gupta. Although it is not a legal bar but a significant circumstance in going through the details of the case that both these Managements were represented by the same ld. counsel. Both the witnesses though from different Managements yet were identified by the same ld. counsel before the AWARD Page 10 of 18 Sh. Ram Girish Vs. M/s. Guru Designs & Ors. DID No. 47/07 Oath Commissioner at the time of preparing their evidence affidavits.
23. In addition to these observations as aforesaid, these two Managements are not protected by any legal cover as the two companies would have been protected under the cover of a 'corporate veil'. Therefore, this court holds that for the purpose of this adjudication both these Management are one and the same entity and their distinction is only for the name sake.
24. The relationship in the nature of 'an employer and an employee' has been admitted by the Management no. 2 through its admissions in pleadings and evidence both. Hence this admission coupled with the observation of the court becomes applicable to the Management no. 1 also with Mr. Munish Kumar Gupta as the central figure in the name and nature of the employer. It is hereby held that the workman has been able to prove the existence of his relationship in the nature of 'an employer and an employee' to the Management no. 1 also and hence to both the respondents. ISSUE NO. 2 :
25. In this issue this court has to adjudicate upon the factum if the the services of the workman were terminated illegally and unjustifiably or he had tendered his resignation on 31.03.2006 to the Management no. 2 and had settled his accounts with the Management no. 2 fully and finally.
26. Two cases were filed before this court for the same relief and against the same group of Managements. In addition to this case filed by the claimant Sh. Ram Girish against the Managements M/s. S.M. International, M/s. Guru Designs and M/s. Pinku Overseas, one Smt. Kamlesh also filed a direct industrial dispute no. 185/07 against the Managements M/s. Guru Designs and M/s. Pinku Overseas. But subsequently, as it was done in this case also, AWARD Page 11 of 18 Sh. Ram Girish Vs. M/s. Guru Designs & Ors. DID No. 47/07 M/s. Pinku Overseas was dropped from the array of the respondents / Managements. This was a development very similar to the present case.
27. Because both these cases were pending trial before this court and their evidence were recorded together, therefore, this court deems it fit to take a judicial notice of the material available on both the files.
28. In both these cases, the Management M/s. Guru Designs had relied upon a set of documents i.e. a resignation, a receipt / acknowledgment, two vouchers and a full and final settlement statement. What is more startling is the similarity of details and appearance between these two sets of documents in both of these connected cases. In Smt. Kamlesh Vs. M/s. Guru Designs the resignation letter bears the date 13.07.2007 and in the present case it bears a date of 31.03.2006. Both these documents are identical in appearance and details except a few personal nouns. This court at the time of pronouncement of judgments into these two cases had placed these sets of documents side by side and compared them.
29. This court makes the following observations keeping in view that a court is always an 'Expert of Experts'. Many handwriting experts, ballistic experts, medical experts and the experts from various fields come to the courts and give their opinions regarding the similarity and dissimilarity of the exhibits placed in evidence. It is the court which on an objective criterion examines them and gives finality to a particular piece of evidence. This court is using the same sense and power in these present two cases also.
30. The set of documents containing resignation letter, receipt / settlement, two vouchers and full and final settlement statements are identical in both these cases. But in the temporal space these are separated by more AWARD Page 12 of 18 Sh. Ram Girish Vs. M/s. Guru Designs & Ors. DID No. 47/07 than one year. By no stretch of imagination a similarity can be inculcated between two sets of documents until and unless both are prepared simultaneously in the same sitting. The proverb 'simultaneous' is given a special force in this sentence.
31. Such simultaneous preparation of two sets of documents is possible only in a circumstance when a poor and vulnerable workman approaches the Management for a job and the Management using its powers and position got some papers signed by him or her with the contents left blank. These papers thereafter are supplied contents according to the needs of the Management.
32. As a matter of precaution this court gives a test to this observation (in the previous paragraph) if it is excessive in force or is going to affect the Management adversely without any ground of its culpability. This court considers a fictitious scenario that this stand by the Management was genuine and bonafide. Under such fictitious circumstances, the Management would have given an intimation of these resignations and payments of the settlement amounts to the appropriate authorities in the Government because the same is compulsory under the provisions of Rule 58 (4) of the Industrial Disputes Rules. Under these rules, if any settlement is arrived at between the parties at a place other than the office of a Conciliation Officer, then it has to be submitted to the office of the Labour Commissioner so that its propriety and justifiability could be examined. But in the present case there is neither a pleading nor an evidence that the Management had ever taken any step in compliance of this Rule. It appears to have been working to hide this settlement from the eyes of law. In this settlement there is a tinge of malafide; a tinge of high handedness; and a tinge of impropriety. Therefore, the observation of this court that either the settlement between the parties was sham and bogus or the documents purporting to show such a settlement were AWARD Page 13 of 18 Sh. Ram Girish Vs. M/s. Guru Designs & Ors. DID No. 47/07 forged and fabricated is well founded.
33. Consequent to this observation, this court using its powers U/S 11 of the Industrial Disputes Act directs that the documents prepared and put by the Management to show any settlement between the parties stand repudiated. And hence there is no need to look into these documents.
34. After raising a curtain of the repudiated documents from the face of the Management, its real nature is before the court. There is no settlement or resignation from the services. Hence in view of this court the service of the workman was terminated in a way which rendered him dissatisfied.
35. Now the court proceeds to look into the other aspects of this case. As it has been laid down by the Hon'ble Superior Courts (SUPRA) primarily it was for the workman to show the existence of the relationship between the Management and him in the nature of 'an employer and an employee'. This was admitted by the Management. After this admission, the 'onus to prove' was shifted as per the mandate of provisions of Section 106 the Indian Evidence Act. The Management ought to have brought the entire documentation (certainly the genuine ones) regarding this workman before the court. It ought to have brought the wages register, the attendance register and complete record of ESIC and PF so that all other aspects of the case would have been properly adjudicated upon. But the Management did not bring the said documents despite opportunities given to it. This paves the way for this court to draw a presumption U/S 114 Illustration (g) of the Indian Evidence Act that had such an evidence been produced on record by the Management, it would have gone against the stand taken by it. Except this fictitious record, the Management has shown nothing on the point of initial appointment. The same remained shrouded in doubt AWARD Page 14 of 18 Sh. Ram Girish Vs. M/s. Guru Designs & Ors. DID No. 47/07 because there was an ambiguity in the work fields of these Managements. Cumulatively this court has no legal option other than to accept the pleadings of the workman that he was appointed by the Management on 10.01.2001 under the auspicies of M/s. S.M. International and subsequently he was transferred to M/s. Guru Designs.
36. In the pleadings the Management denied the statements of the workman and his monthly salary of Rs.3400/ per month and stated that it was Rs.3200/ per month. But no independent proof was produced before the court to show that it was Rs. 3200/ per month. Therefore, this court holds that the workman be deemed to have been receiving the wages as per the Minimum Wages Act prevailing at the relevant point of time in his employment with the Management.
37. The workman pleaded his termination on 04.01.2007. The concerned record e.g. the returns to the ESI and PF were under the control of the Management. It was never produced before the court. The Management releid upon some documents which this court has already declined to receive in evidence. Hence again this court has no other legal alternative than to presume that the Management had accepted the pleadings of the workman and the date of termination of service as 04.01.2007.
38. The last element is the mode of termination of service. The Management stated that it was a voluntary resignation, but the workman denied it. The court found the stand of the Management as malafide supported by the documents of obscure nature. Therefore, there is no legal hurdle in presuming that the services of the workman was terminated in an environment of duress and high handedness which constitute retrenchment within the meaning of Section 2 (oo) of the Industrial Disputes Act which is reproduced below : AWARD Page 15 of 18 Sh. Ram Girish Vs. M/s. Guru Designs & Ors. DID No. 47/07 "Retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include
(a) Voluntary retirement of the workman; or
(b) retirement of the workman on employment between the employer and the workman concerned contains a stipulation in that behalf;
or (bb) termination of the service of the workman as a result of the non -
renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill - health.
39. The Hon'ble Supreme Court in case Anoop Sharma Vs. Executive Engineer, Public Heath Division No. 1 Panipat (Haryana) (2010) 5 Supreme Court Cases 497 has held that : "We have no hesitation to hold that termination of service of an employee by way of retrenchment without complying with the requirement of giving one month's notice or pay in lieu thereof and compensation in terms of Section 25 F (a) and (b) has the effect of rendering the action of employer as nullity and the employee is entitled to continue in employment as if his service was not terminated."
40. In Krishna Bahadur Vs. Puran Theater, 2004 (103) FLR 146 SC., AWARD Page 16 of 18 Sh. Ram Girish Vs. M/s. Guru Designs & Ors. DID No. 47/07 the Hon'ble Court held that the requirement of Section 25 F (b) the Industrial Disputes Act was imperative. The contravention thereof would render the retrenchment. In the present case there is violation of not only Section 25 F (a) & (b) the Industrial Disputes Act but of Rule 77 the Industrial Disputes Rules also.
41. Following the aforesaid laws laid down by the Hon'ble Supreme Court of India in Anoop Sharma (Supra) and Krishna Bahadur (Supra) this court also holds that the retrenchment of the workman in the present matter was wrong. The impugned retrenchment of the workman by the Management was legally defective.
42. Hence this court is of the view that the termination of services of the workman Ram Girish was bad in law. This court is also of the view that this wrong done to the claimant can only be compensated by awarding him an appropriate amount of compensation. As this court has already held that his service period was from 10.01.2001 to 04.07.2007 and his last drawn wages was Rs.3400/ per month. He would have received an approximate amount of Rs.13,600/ at the time of his retrenchment. This is apart from his gratuity and other consequential benefits. It ought to have been given to him 04.07.2007. But it was not given so.
43. This court is of the view that the payable compensation amount should be determined after having regard to the date of appointment, the date of termination, the total length of employment of the workman, his last drawn salary, the present value of rupees as compared to that on the date of retrenchment (i.e. with special effect of inflation in economy and the devaluation of money) and the circumstances in which he was retrenched.
RELIEF : AWARD Page 17 of 18 Sh. Ram Girish Vs. M/s. Guru Designs & Ors. DID No. 47/07
44. At the time of retrenchment of the claimant from the services, he would have got an approximate amount of Rs.13,600/ as compensation in accordance with the language of Section 25 F of the Industrial Disputes Act. Keeping in view the total length of employment of the workman, his last drawn salary, the present value of rupees as compared to that on the date of retrenchment (i.e. with special effect of inflation in economy and the devaluation of money) this amount of Rs.13,600/ would have grown to double of its original amount. Therefore, this amount of Rs. 13,600/ would have grown double as Rs.27,200/. Hence this court holds the claimant entitled to receive a compensation in the sum of Rs.27,200/ under the provisions of Section 25 F of the Industrial Disputes Act.
45. This court further deems it fit to allow the claimant a sum of Rs.50,000/ as damages for his illegal retrenchment. In addition to this amount a sum of Rs2800/ as litigation expenses is also awarded in favour of the claimant.
46. A copy of this award be sent to the office of the concerned Dy. Labour Commissioner for necessary action.
47. The original documents be returned against acknowledgment back to the party which has filed them and further subject to the filing of the certified copies of the same.
48. File be consigned to the Record Room after completing due formalities. ANNOUNCED IN THE OPEN COURT ON 14.12.2012.
AWARD Page 18 of 18