Delhi District Court
Sh. Om Prakash vs M/S Punjab Scientific Industries on 24 August, 2007
ID No. 93/2006
1
IN THE COURT OF SH. S.K. SARVARIA
PRESIDING OFFICER LABOUR COURT NO. XII
KARKARDOOMA COURTS, DELHI.
ID No. 93/2006
DISPUTE BETWEEN
Sh. Om Prakash,
S/o late Sh. Maya Ram,
R/o 495/35, Onkar Nagar,
Trinager,
Delhi. ...............WORKMAN
AND
M/s Punjab Scientific Industries,
315/12, Shahzada Bagh,
Dayabasti Industrial Area,
Delhi - 110035. .........MANAGEMENT
Date of Institution: 08.08.2006
Date of argument: 30.7.2007
Date of award: 24.8.2007
AWARD
1.The Industrial Dispute between the management of M/s Punjab ID No. 93/2006 2 Scientific Industries, 315/12, Shahzada Bagh, Dayabasti Industrial Area, Delhi - 110035 and its workman Sh. Om Prakash, S/o late Sh. Maya Ram, R/o 495/35, Onkar Nagar, Trinager, Delhi was referred by Secretary (Labour), Government of The National Capital Territory of Delhi for adjudication in exercise of powers conferred by section 10 (1)
(c), 10 (1) (d) and 12 (5) of the Industrial Dispute Act 1947 (in short Act) vide his Order No. F.24 (450) / 2006/Lab. 1817 - 21 dated: 27.7.04 with the following terms of reference :
"Whether the services of Sh. Om Prakash, S/o late Sh. Maya Ram have been terminated by the management illegally and/or unjustifiably and if so, to what sum of money as monetary relief along with consequential benefits in terms of existing laws / Govt. notification and to what other relief is he entitled, and what directions are necessary in this respect?"
2. The notice of the reference was issued to the workman who filed statement of claim alleging, in brief, that he has been working with the management as fitter / welder since February 1998 on the last drawn ID No. 93/2006 3 salary of Rs. 4,000/- per month. He was working with the management with honesty and dedication but the management did not provide legal facilities like appointment letter, overtime at double rate, attendance card, ESI, Bonus etc., on repeated demands of the same, the management started teasing the workman.
3. On 06.6.03 a general body meeting of the workers was called for legal facilities to the workers which annoyed the management, who tried to terminate the services of the workman. The workman made complaint to the labour department for legal facilities which further annoyed the management who terminated the services of the workman on 20.6.2004. The workman again made complaint to the labour department and in presence of labour inspector on 25.6.04 the management agreed to give a sum of Rs.18,550/- as full and final settlement amount to the workman instead of reinstatement to the job and paid a sum of Rs. 1,000/- as initial payment. But the management instead of paying the settlement amount started issuing letters to the workman to report for duty in violation of the settlement arrived at between labour inspector and the workman. The workman and labour inspector appeared before the ID No. 93/2006 4 management where Proprietor of management Sardar Balwant Singh promised to increase the wages of workman by Rs.250/- and reinstated the workman to the job but no legal facilities were provided by the management to the workman nor any bonus was paid, so the workman made complaint to the concerned officers of the labour department on that the management withheld the wages of the workman for the month of September and October 2005 and on repeated demands of the same the management gave beating to the workman on 13.11.2005. The workman reported this matter to the police.
4. On 07.11.2005 the workman received a sum of Rs. 5600/- by cheque, which is less than the wages of the workman, so the workman along with protest letter returned the same and requested for payment of all his dues. On 17.11.05 the workman reported for duty and he was not allowed to join duties and vide letter dated 15.11.05 the management terminated the services of the workman, without making any payment. The letter of management was dated 15.11.05 which was a festival holiday. On 17.11.05 the workman by registered AD letter requested for reinstatement to the job but the management did not comply or reply the ID No. 93/2006 5 demand notice. The complaint made to the labour department and its officer did not bear any fruit. The statement of claim was filed before conciliation officer but the conciliation proceedings failed. At the time of termination of services of the workman neither notice pay was given nor any service compensation was paid so termination of the services of the workman is in violation of provisions of Section 25F of the Act. The workman is unemployed from the date of termination of services and could not get any job, despite his best efforts.
5. The workman has prayed for reinstatement to the job, continuity of service and full back wages.
6. The management was served by way of affixation for 12.10.06 and management was proceeded with ex.parte. Thereafter on 21.11.06 the workman filed affidavit in ex. parte evidence and his statement regarding tendering of affidavit was recorded, after which the management moved an application for setting aside ex.parte order and vide order dated 20.12.06 the application of management was allowed, subject to cost of Rs.700/-, after which the management filed reply / written statement. ID No. 93/2006 6
7. The case of the management as disclosed in the reply / written statement is that the management admitted the relationship of workman and employer between the parties. The case of the management is that workman was not working honesty and sincerely with the management. There were only 4/5 employees in the concern. And the same does not fall within the ambit of ESI Act etc., and the same being a petty unit only Delhi Shops and Establishment Act is applicable to the concern of the management. The appointment letter was duly given to the workman and the attendance register is also maintained by the management. The allegation of the workman regarding non providing of legal facilities are wrong. The workman was not performing his duty properly and he used to remain absent and whenever he was asked to do any work, he used to refuse for the same and used to say that he shall work as per his whims and fancies and also used to remain absent from his duties as per his whims and fancies. Whenever he was assigned the work of making fittings / installations of the machines, he used to make defective ID No. 93/2006 7 fittings and used to harrass, humiliate and defame the management and lower their reputation and he used to threaten the management that he would create such circumstances that the management is harrassed and compelled to accede to his illegal and illegitimate demands and so that the management is compelled to make payment to him as per his whims and fancies and then to relieve him from his duties. He used to pick up quarrels with the old proprietor of the management and used to make false complaints to the Police and to the Labour Department just to harrass and black mail the management. The complaint if any made by the workman to the labour department is wrong and false. It has also denied that it terminated the services of the workman on 20.6.2004. The management has also denied that any settlement was arrived at before labour inspector on 25.6.2004 or the management arrived to pay a sum of Rs.18,550/- to the workman.
8. The management denied that on 13.11.05 the management gave beating to the workman. According to the management the workman attended the duties on 14.11.05 and he was absent on 15.11.05 and 16.11.05 and on 17.11.05 he came on duties and quarreled with the ID No. 93/2006 8 management and abused them and refused to work for the management. Only then the management was compelled to give one month's notice and offered him the balance payment and one month's salary and he received the said amount, thereafter, he never turned up.
9. The management has further submitted that salary of the workman for the month of September 2005 amounting to Rs. 2067/- and for October 2005 to the tune of Rs. 3629/- was offered to the workman but he refused to receive the same, so the management was compelled to send the balance dues amounting to Rs. 5600/- to the workman through cheque, but he refused to accept the same. Later on with the intervention of the labour inspector the workman settled the amount and accepted the salaries of September 2005 and also received the salary of November 2005 after signing on the salary register and received the same and thereafter he left the services and has no claim of any kind against the management. The management has also submitted that the workman is gainfully employed and was having handsome earning. The management has denied the other facts stated in the statement of claim and prayed for its dismissal.
ID No. 93/20069
10. In the rejoinder the workman denied the averments made in the written statement / reply of the management and reaffirmed the facts stated in the statement of claim.
11. The controversies between the parties in the pleadings, resulted into framing of the following issue by this tribunal on 10.01.2007: -
1. To what relief if any, is the workman entitled in terms of reference.
12. The learned local commissioner was appointed for recording evidence of parties but none appeared on behalf of management before learned local commissioner as well as before this tribunal on 24.5.07, so the management was again proceeded with ex.parte.
13. The workman filed written arguments.
14. I have gone through the written argument filed on behalf of the workman, my findings on the issue framed are as under: - ID No. 93/2006 10
15. ISSUE NO.1
16. The workman in his affidavit in evidence has proved the documents Ex.WW1/1 to Ex.WW1/63 to show that he was employed with the management and made complaints against the management to the labour department and to other authorities from time to time. The workman has also proved the Ex.WW1/12 which is the report of labour inspector and shows that before the labour inspector the management on 25.6.04 arrived at the settlement and it was agreed that management shall pay Rs. 18,550/- out of which Rs.1,000/- was paid and remaining amount was to be paid on 02.7.04. The evidence of workman remained unrebutted and unchalleged as the management though initially appeared but subsequently absented from the proceedings and was proceeded with ex.parte as referred before. By unrebutted and unchallenged the workman has been able to establish on record that he was working with the management for more than one year at the time of termination of his services. The management has alleged that the ID No. 93/2006 11 services of the workman were terminated by giving one month's salary to him but it is not the case of the management that retrenchment compensation has been paid to him. The workman has alleged that management has not paid the complete wages, so he returned the cheque of the management. Therefore the termination of the services of the workman by management is in violation of provisions of Section 25F of the Act and is illegal.
17. The question now arises what relief should be granted to the workman, against the management.
18. In U.P. State Brass ware Corporation Ltd. and others Vs. Uday Narain Pandey (2006) 1 SCC 479 the Apex Court has made the following observations:
"Before adverting to the decision relied upon by the learned counsel for the parties, we may observe that although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is ID No. 93/2006 12 being taken by the court realising that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and /or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched."
19. In Lords Homeopathic Laboratories private Ltd. Vs. Ms. Lissi Unnikunju and others 2006 IV AD (Delhi) 739 (DB) our Hon'ble High Court the following observations were made:
"In a large number of cases, this court has granted compensation instead of reinstatement vide Model School for Mentally Deficient Child Vs. Mukh Ram Prasad Maurya and others 109 (2004) DLT 292, Suraj Pal Singh And others Vs. P.O, Labour Court and another 2002 v. AD (Delhi) 706; Harsha Tractors Ltd. Vs. Secretary (Labour) and others 2001 III AD (Delhi) 746; Sh. Pal Singh Vs. National Thermal Power Corporation Ltd. 2002 111 AD (Delhi) 1059; Sain Steel Products Vs. Naipal Singh and others 2001 LLR 566; R. Mugum and others Vs. The P.O. Labour Court and another 2000 VI AD (Delhi) and State Bank of India Vs. J.R.Surma 2002 VII AD (Delhi) 325.
Whether compensation should be awarded for reinstatement is in the Tribunal's discretion vide ID No. 93/2006 13 United Commerce Bank Ltd. Vs. Secretary, U.P. Bank Employees Union and others AIR 1953 SC 437. Various factors have to be seen as to whether reinstatement or compensation should be granted vide The management of Bharat Kala Kendra Vs. R.K. Baveja, 1980 (40) FLR 244 (Delhi).
In Hindustan Steel Ltd. Vs. A.K. Roy, AIR 1970 SC 1401, the Supreme Court observed (vide paragraph
14): - "The Tribunal, however, has the discretion to award compensation instead of reinstatement if the circumstances of a particular case are unusual or exceptional."
This view was followed by a Division Bench of this Court in Jagat Singh Vs. Estate Officer 2002 V AD (Delhi) 713. The same view was taken in Rolston John Vs. CGIT 1995 Supp. (4) SCC 548; DTC Vs. Presiding Officer 2000 LLR 136; Nehru Yuva Kendra Vs. UOI 2000 IV AD (Delhi) 709; A.K. Chakraborty Vs. Saraswadpur Tea Company Ltd. (1982) 2 SCC 328 etc. In Employers, Management of Central P&D Inst. Ltd. Vs. UOI, AIR 2005 SC 633, the Supreme Court observed that it is not always mandatory to order reinstatement after holding the termination illegal and instead compensation can be granted. The same view was taken by a Division Bench of Delhi High Court in Pramod Kumar Vs. Presiding Officer, 123 (2005) DLT 509"
20. Keeping in view the fact that on 25.6.04 there was full and final ID No. 93/2006 14 settlement between the parties and management had agreed to pay Rs. 18,550/- out of which Rs.1,000/- was paid and balance amount of Rs. 17,750/- was not paid and instead of paying the remaining amount to the workman the management reinstated the workman to the job and the documents Ex. WW1/1 to Ex.WW1/63 relied by the workman, shows the complete lack of faith between the parties, the reinstatement of the workman to the job would not be in the interest of justice. In view of above authorities and overall facts and circumstances of the case the workman, in my view, is entitled to a lump sum compensation in the sum of Rs.50,000/- in lieu of reinstatement to the job, continuity of service and full back wages. The issue is accordingly decided in favour of the workman and against the management.
21. In view of my findings on the above issue, the workman is entitled to a lump sum compensation in the sum of Rs.50,000/- from the management in lieu of reinstatement to the job, continuity of service and full back wages. If the said amount is not paid within 2 months from the date of publication of the award, then the workman will be entitled to interest @9% per annum from the date of award, till realisation of the ID No. 93/2006 15 decreetal amount. The reference is answered accordingly. The copies of the award be sent to learned Secretary (Labour), Government of National Capital Territory of Delhi. The award be also sent to the server (www.delhicourts.nic.in). The file be consigned to the record room.
Announced in Open Court on this
24th day of August 2007 (S.K. SARVARIA)
Presiding Officer Labour Court No. XII,
Karkardooma Courts, Delhi.