Delhi District Court
Vide Order No. ... vs Sports Authority Of India Kamgar Union & ... on 21 March, 2015
IN THE COURT OF SHRI UMED SINGH GREWAL
PRESIDING OFFICER : LABOUR COURT
XVII:KKD:DELHI
ID No.341/06/03
Unique ID No.02402C0012112002.
M/s. S.J.M. International Ltd.,
F13, Udyog Nagar, Rohtak Road,
New Delhi41.
..............Management
Versus
Its Workmen
C/o New Azad Hind General Mazdoor Union,
4/70, Mangolpuri, New Delhi83.
.............Workmen
DATE OF INSTITUTION : 04.01.2003.
DATE ON WHICH AWARD RESERVED : 21.03.2015.
DATE ON WHICH AWARD PASSED : 23.03.2015.
A W A R D :
1. Vide Order No. F.24(2179)/2002Lab./21127680
dated 27.11.02, issued by Government of NCT of Delhi, a
reference was sent to this Court with the following terms:
"Whether the services of Sh. Mukandi Lal
ID No.341/06/03. 1/19
and 5 others as shown in Annexure'A' have
been terminated illegally and, or
unjustifiably by the management, and if so,
to what sum of money as monetary relief
alongwith consequential benefit in terms of
existing laws / Government notifications and
what other relief are they entitled and what
directions are necessary in this respect?"
Annexure - 'A'
S. No. Name Father's Name
1 Sh. Mukandi Lal Sh. Dal Chand
2 Sh. Narender Kumar Sh. Ram Parsad
3 Sh. Chander Bhan Sh. Mukandi Lal
4 Sh. Suresh Kumar Sh. Kunwal Pal
5 Sh. Durgesh Kumar Sh. Hari Chand
6 Lakahan Lal Parmanand
2. Claimants' case is that Mukandi Lal, Chander Bhan,
Suresh Kumar, Durgesh Kumar and Lakhan Lal were employed
with the management in October 1999, October 1999, October
2000, May 1999 and 15.10.2000 respectively on monthly salary
of Rs.4,000/, Rs.4,000/, Rs.3,500/, Rs.4,000/, Rs.4,000/
respectively. About 100 persons were working regularly in two
shifts with the management during those days. Management was
ID No.341/06/03. 2/19
not providing them legal benefits such as service card, appointment
letter, attendance card, payment register and ESI cards etc. When
the workmen asked for those benefits, their signatures were
forcibly taken on blank papers. When the management tried to take
their signatures on blank papers on the second occasion, the
workmen refusal infuriating the management, which fired them
ultimately on 01.12.01, 01.12.01, 05.12.01, 05.12.01 and 03.12.01
respectively. The workmen have sought reinstatement with
continuity of service and with full back wages.
3. The management filed written statement and took the
plea that the claimants had not worked with it for 240 days and that
they left its services on their own after entering into final
settlement.
4. Following issues were framed on 16.04.2007 :
1. Whether the workmen have worked continuously for
240 days in a year with the management. OPW
2. If answer to issue No. 1 above is in affirmative,
whether the workmen voluntarily left the services of
the management in the month of December, 2001 as
ID No.341/06/03. 3/19
stated in para 3 of reply on merits in the WS., if so its
effect?OPM.
3. As per terms of reference.
5. The reference was made in respect of six workmen but
workman Narender Kumar did not file statement of claim. Hence,
he is not entitled to any relief.
6. In order to establish their case, workmen Mukandi Lal,
Chander Bhan, Lakhan Lal, Suresh Pal and Durgesh Kumar
tendered their respective affidavits in evidence and relied upon
documents from Ex. WW1/1 to Ex. WW1/19. Ex. WW1/1 is a
complaint to Assistant Labour Commissioner on 13.12.2002 by the
Union, Ex. WW1/2 is a complaint dated 27.01.02 to Central
Director, ESIC, Ex. WW1/3 is a complaint dated 11.01.02 to EPF
Commissioner, Ex. WW1/4 is complaint dated 11.01.02 to ACP,
Ex. WW1/5 dated 10.01.02 is a letter to the union from Labour
Inspector, Labour Department, Ex. WW1/6 is Labour Inspector
report, Ex. WW1/7 dated 26.12.01 is again a Labour Inspector
report. In the same way, other documents are the complaints to
various authorities by the Union.
ID No.341/06/03. 4/19
7. Management examined its Production Manager Arun
Sachdev as MW1, who deposed that the claimants were appointed
in the management only for a small period and they had started
working with it w.e.f. October, 2001 and worked only upto
December, 2001. He further deposed that workman Mukandi Lal
was appointed vide appointment letter Ex. MW1/M1 bearing
signatures of the workman. He further deposed that Mukandi Lal
left job ultimately on 01.12.01 after taking full and final payments
witnessed by the documents Ex.WW1/M2 and Ex. WW1/M3. He
next deposed that workman Chander Bhan was appointed vide
appointment letter Ex. WW2/M1 and he also left the services on
01.12.01 after taking full and final payment vide documents Ex.
WW2/M2 and WW2/M3. About claimant Lakhan Lal, he deposed
that he was taken into services vide appointment letter Ex.
WW1/M1 on 01.10.01 and he worked only upto 30.11.01 when he
hanged up his gloves on 30.11.01 and took full and final payment
witnessed by documents Ex. WW3/M1 and Ex. WW3/M2. Similar
stance has been taken regarding remaining two workmen Suresh
Kumar and Durgesh Kumar, who have been shown to have
voluntarily left the services on 04.12.01.
ID No.341/06/03. 5/19
Issue No. 1.
8. Onus of proof of this issue is upon the workmen. Ld.
ARM argued that all five workmen had started working with the
management from October, 2001 and had worked only upto
December, 2001 and hence they had not worked with it for 240
days in the preceding year. He drew the attention of the Court
towards cross examination of all witnesses in which they deposed
that they had not produced any document to show that they were
working since October, 1999. WW2 Chander Bhan admitted in
cross examination that he was appointed with the management on
01.10.01. To the same effect is the cross examination of WW3
Lakhan Lal. WW4 Suresh Kumar deposed in cross examination
that he did not have document of proof to show his employment
with the management prior to 01.10.01. Ld. ARM further relied
upon the appointment letters of the workmen in which they have
been shown to have been appointed on 01.10.01. Ld. ARM relied
upon Range Forest Officer And S.T. Hadimani, CA No. 1283/202
decided by Hon'ble Apex Court on 15.02.2002.
ID No.341/06/03. 6/19
On the other hand, ld. ARW argued that the original
appointment letters should be in the custody of the workmen, but
those have been produced by the management. Appointment dates
have been mentioned with different ink. Despite availing
opportunity, the management did not file the remaining documents,
though it had undertaken on 18.08.10 to produce the same.
9. It is correct that all claimants have deposed in cross
examination that they had not produced any document to show that
they were working with the management since October, 1999.
Some workmen even admitted that they had started working with
the management on 01.10.01. The next sentence of their cross
examination shows that they had stated voluntarily that they had
joined the management in October, 1999 and their services were
terminated on 01.12.2001. That sentence wipes out the earlier
sentence in which they had admitted their appointment with the
management on 01.10.01. So the management cannot take benefit
of one bald sentence.
General practice followed by institutions, business
concerns, firms and companies is that original appointment letters
are delivered to the workmen. The proper custody of such
ID No.341/06/03. 7/19
documents is always deemed to be with the workman. That general
practice has been turned turtle by the management in the present
case by placing on record the original appointment letters claiming
that those were bearing their signatures. Such letters should have
been in the custody of the workmen. So, it is held that the original
letters have not been produced from proper custody.
These appointment letters bear the date of appointment
in different inks, if compared with the ink of other contents.
Moreover, these are two types of letters, different in shape and size
and also different in contents. All letters are shown to have been
issued on 01.10.01. It is quite strange that the management
prepared appointment letters of two types on the same day having
different terms and conditions. The management should have taken
a specific plea in the written statement that the workmen were
appointed with it on a specific date. No such date of appointment
has been mentioned in the written statement. The logical
conclusion is that till the date of filing of written statement, the
management had not filled up the date of appointment in their
letters. They filled up the letters according to their convenience.
Cross examination of MW1 Arun Sachdev was
deferred on 18.08.10 to produce the details of computation of full
ID No.341/06/03. 8/19
and final settlement. He did not produce the said record for next
five consecutive dates. Ultimately, he appeared on 25.03.11 only to
depose that attendance register, wage register and other record
pertaining to the employees from the year 2002 to 2005 were not
traceable and for it, the management had filed a complaint Ex.
MW1/2 before the Commissioner of Police. This chronology of
events creates doubt that management did not produce the relevant
record deliberately. MW1 had undertaken on 18.08.10 to produce
the record. On 12.03.11, a complaint was moved before
Commissioner of Police to the effect that the record was missing
and was not traceable. It is further mentioned that the record had
been misplaced. Moving of that complaint before Commissioner
of Police after giving undertaking to the court makes intention of
the management mala fide.
10. In R.M. Yellatti v. The Asst. Executive Engineer, JT
2005 (9) SC 340, the management had failed to produce the muster
roll etc. and adverse inference was drawn against it. In Municipal
Corporation of Delhi Vrs. Rajinder Singh Negi, 101 (2002) Delhi
Law Times 481, its Commissioner was directed to produce the
ID No.341/06/03. 9/19
wages record of the workman, but not produced. Hon'ble High
Court of Delhi held that Range Forest Officer citation (supra)
(heavily relied upon by the management in the present case) was
not applicable. To the same effect is Sports Authority of India Vs.
Sports Authority of India Kamgar Union & Ors., 2005 LLR 541.
11. Appointment letters are not beyond doubt.
Management did not produce record of the workmen despite
undertaking and direction. Taking into account all these facts, it is
held that claimants had started working with the management in
October, 1999 and not in October, 2001 as claimed by the
management. So this issue is decided in favour of the claimants
and against the management.
Issue No. 2.
12. Ld. ARM argued that the claimants had left the job
voluntarily in December, 2001 after taking full and final payment
from the management after executing the receipts and vouchers.
Ld. ARW argued that the management has failed to prove the
receipts and vouchers and also the claimed that settlement is not as
ID No.341/06/03. 10/19
per Rule 58 of the Industrial Disputes (Central) Rules, 1957.
13. The vouchers and receipts were put to all five
claimants in cross examination and they deposed that those
documents were not bearing their signatures. Thereafter, the onus
shifted to the management to prove that those documents were
bearing the signatures of the workmen. It should have moved an
application to send those vouchers to FSL or any private
handwriting expert to know whether those were bearing signatures
of the claimants or not. No such step was taken by the
management. Moreover, it was held by the Hon'ble High Court in
the Management, The Cooperative Store Ltd. Vs. Shri Ved
Prakash Bhambri, 36(1988) Delhi Law Times 185 that settlement
should be as per Rule 58 of the Industrial Disputes (Central) Rules,
1957. In the case in hand, the management did not examine any
official from the Labour Office to prove that copies of the said
settlement were sent to the Labour Office. That is in violation to
Rule 58 of the Industrial Disputes (Central) Rules, 1957 and hence
it cannot be termed as settlement. So this issue is also decided
against the management and in favour of the workmen.
ID No.341/06/03. 11/19
Issue No. 3.
14. In view of decision on issue Nos. 1 & 2, the Court has
already reached to the conclusion that claimants were appointed
with the management in October, 1999 and their services were
terminated in December, 2001. The management did not examine
any witness or produce any document to show that any notice or
retrenchment compensation was given to the claimants. Hence, it is
held that services of the workmen have been terminated by the
management unjustifiably and illegally.
Relief.
15. Ld. ARW claimed reinstatement with full back wages
and continuity of services. It is settled law that even in case of
illegal termination reinstatement is not automatic. 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
ID No.341/06/03. 12/19
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"
16. 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 :
"Apart from the aforementioned error of
law, in our considered opinion, the Labour
ID No.341/06/03. 13/19
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".
17. 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
ID No.341/06/03. 14/19
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
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 ID No.341/06/03. 15/19 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 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 ID No.341/06/03. 16/19 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 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.
ID No.341/06/03. 17/19Haryana 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 between a daily wager who does not hold a post and a permanent employee."
18. As held above, claimants joined the management in ID No.341/06/03. 18/19 October, 1999 and their services were terminated in December, 2001. Relations between parties are strained. Taking into the account the proposition of law laid down by the Hon'ble Apex Court, reinstatement and full back wages is not the just relief. In lieu of those reliefs, a lump sum compensation of Rs.40,000/ (Rupees Forty Thousand) each is granted to workmen Mukandi Lal, Chander Bhan, Suresh Kumar, Durgesh Kumar and Lakhan Lal.
Award is passed accordingly. The management is directed to pay the said amount to the said workmen within a month from the date of publication of this award, failing which it shall be liable to pay interest @12 per cent per annum from today till realization. The reference is answered accordingly.
19. The requisite number of copies be sent to the Govt. of NCT of Delhi for publication of the award. File be consigned to record room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 23.03.2015. POLCXVII/KKD, DELHI.
ID No.341/06/03. 19/19