Delhi District Court
Between The vs The on 26 April, 2022
IN THE COURT OF SH. RAMESH KUMAR-II, EARLIER
POSTED AS PRESIDING OFFICER-06, LABOUR
COURT, ROUSE AVENUE DISTRICT COURT, D.D.U.
MARG, NEW DELHI.
NOW POSTED AS ADDITIONAL DISTRICT JUDGE-01,
SHAHDARA DISTRICT, KARKARDOOMA COURT,
DELHI
CNR No. DLCT130020542015
LID No. 237/2016
Date of Institution 10.08.2015
Date of Award 26.04.2022
BETWEEN THE WORKMAN
Sh. Om Prakash S/o Late Sh. Barkhu Ram, 10684, Gali No.8,
Andha Mughal Pratap, Nagar Delhi-110007, through All
India General Mazdoor Trade Union (Regd.), 170, Bal
Mukund Khand, Giri Nagar, Kalkaji, New Delhi-19.
AND
THE MANAGEMENTS OF
1 M/s G.P. Associates, Flat No. 16, Jyoti Apartments,
Parwana Road, Pitam Pura, New Delhi-34. Work
Address: A-20, Bada Bagh, Azadpur, G.T. Karnal
Road, Delhi-110033.
2 M/s PEEGEE Associates, Plot No.135, Sector-4,
I.M.T. Manesar, Gurugram (Haryana).
AWARD
1 Vide this Award, I shall dispose of the statement of claim
as filed by the workman directly before the court under Section
10 (4) A of the Industrial Disputes Act, 1947 against the
management.
Digitally
signed by
RAMESH
LIR No.237/2016 RAMESH KUMAR 1
KUMAR Date:
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2 Brief facts as stated by the workman in his statement of
claim are that he has been working with the aforesaid
management continuously, diligently and honestly and his last
drawn wages was Rs. 9386/- per month and he has neither given
any chance of complaint nor there were any charges against him,
but he was deprived of benefits as per labour laws like
appointment letter, leave book, wage slip, overtime, wage
increment, conveyance, housing allowance, bonus, and
attendance card etc., which he was demanding verbally from the
management, to which the management assured that they will
extend the same, however, they did not give the same. It is
further stated that the employer of both establishments is same
and the workman was appointed at Delhi establishment, however,
after some time he was transferred to the other establishment of
the management that is located at Plot No 135 Sector-4, IMT
Manesar, Haryana, but the management did not issue any transfer
letter to the workman and they continued to take work from him.
It is further stated that since the workman was not educated and
had no knowledge of the labour laws, the management in
conspiracy to usurp his employment continued to change the
name of the establishment and used to take his signature on
papers and whenever the workman protested against the same,
the management used to threat him of terminating his services. It
is further stated that when the workman protested against the
same the management terminated his services on 03.01.2014
from Delhi establishment and did not pay the wages for the
period w.e.f. 01.12.2013 to 02.01.2014, which is a violation of
provisions of section 25 F of the Industrial Disputes Act, 1947. It
Digitally
signed by
RAMESH
LIR No.237/2016 RAMESH KUMAR 2
KUMAR Date:
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is further stated that the management had called the workman on
the assurance that they will keep him on the job but the
management did not assign any work and also did not pay his
pending wages and aggrieved therefrom, the workman issued a
legal demand notice to the management praying for reinstatement
alongwith back wages, which was not replied by the
management. It is further stated that the workman also made a
complaint against the management before the concerned
Assistant Labour Commissioner regarding illegal termination of
his services. Thereafter, conciliation proceedings were also
initiated on complaint of the workman but resulted into failure
and the conciliation officer issued the failure report and
thereafter, the workman filed the claim under section 10 (4 A) of
the Industrial Disputes Act. It is further stated that the workman
is unemployed from the date of his illegal termination and
therefore, he is entitled to unpaid wages, overtime, bonus, weekly
off, annual leaves with reinstatement in service with increment in
minimum wages.
3 Notice of the statement of claim was issued to both the
managements and they both have filed their separate written
statements to the statement of claim of workman.
4 The management no.1 took various preliminary
objections in its written statement that the claimant had never
been terminated by the Management No.1 as alleged, rather on
the contrary, the workman himself is guilty of gross unauthorized
absenteeism from his service from June, 2013 thereby resulting
into abandonment of his employment. It is further stated that the
claimant had been absenting from his duty without any
Digitally signed
by RAMESH
KUMAR
LIR No.237/2016 RAMESH Date: 3
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intimation or prior approval of the Management No.1 and every
effort of the Management No.1 to call him back on the duty had
proved infructuous due to the adamant attitude of the workman.
It is further stated that the Management No.1 had indulged into
several correspondences vide which the workman was called
upon to report on duty. It is further stated that it is a case of gross
unauthorized absenteeism by the workman and not of alleged
termination and the name of the workman still exists on the rolls
of the Management No.1 and the claimant can join the duties
immediately. It is further stated that the reference order made by
Govt. of NCT of Delhi is bad in law as the same
has been made mechanically without application of mind and
lastly, the management No.1 prayed to dismiss the claim of the
workman.
5 The management no.2 also took various preliminary
objections in its written statement that the present claim is
untenable in law as the management no.2 has no nexus
whatsoever with the workman and as such there exists no
relationship much less that of master and servant between the
workman and the management no.2. It is further stated that the
workman in question never served the management no.2 in any
capacity or at any point of time and therefore, his claim is liable
to be rejected on this ground alone.
6 The workman thereafter filed separate rejoinder to
written statement of management no.1 and 2, wherein he denied
all the contents of the written statements word by word and he
reiterated and reaffirmed the facts of the statement of claim as
correct and it is prayed that an award may kindly be passed in
Digitally
signed by
RAMESH
RAMESH KUMAR
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favour of the workman in terms of the prayer made by him in the
statement of claim.
7 After completion of the pleadings, following issues were
framed vide order dated 05.04.2016:-
1 Whether the workman has abandoned his
employment with the management no.1 on
account of his unauthorized absenteeism w.e.f.
June, 2013 as alleged? OPM 1
2 Whether there exists relationship of
employer and employee between the workman
and the management no.2? OPW
3 Whether the services of the workman are
terminated by the management illegally and
unjustifiably, if so, to what affect? OPW
4 Relief.
8 After framing of the issues, matter was fixed for
workman evidence. Accordingly, the workman in support of his
claim examined himself as WW1 and he filed his evidence by
way of affidavit Ex.WW1/A wherein he reiterated the contents
of his statement of claim. In support of his claim the workman
relied upon documents i.e. original copy of complaint before
ALC is Ex.WW1/1, photocopy of demand notice is Ex.WW1/2,
statement of claim filed before ALC is Ex.WW1/3 (wrongly
typed as Ex.WW1/2, now be read as Ex.WW1/3) and ESIC Card
is Ex.WW1/4. The workman did not examine any other witness
in support of his case.
9 Thereafter, opportunity was given to the managements to
lead their evidence. In rebuttal the managements examined one
Digitally
signed by
RAMESH
RAMESH KUMAR
LIR No.237/2016 KUMAR Date:
5
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witness i.e. Sh. Rajan Kapoor, as MW1, who filed his evidence
by way of affidavit Ex.MW1/A and relied upon documents i.e.
copy of authority letter is Ex.MW1/1, courier receipts of letter
sent to the workman are Ex.MW1/2 to Ex.MW1/4, copy of
intimation letter sent to DLC, Nimri Colony, Delhi for closure of
the establishment w.e.f. 31.03.2016 which is dated 29.04.2016 is
Ex.MW1/5 (OSR), and photocopy of letter dated 06.06.2013,
14.06.2013 and 25.06.2013 sent to the claimant are colly. Mark
A, Mark B and Mark C. The managements did not examine any
other witness and its Authorized Representative closed
management's evidence on 18.02.2021. After conclusion of
evidence of both the parties, matter was fixed for final
arguments.
10 Both the parties have filed their respective written
arguments in support of their contentions.
11 I have also heard final arguments as addressed by Ld.
Authorized Representative of the managements and also perused
the written arguments as filed by both the parties.
12 I have also perused the record. On perusal of record, my
issue-wise findings are as under:-
ISSUE NO.1 & 3
13 Both these issues are inter-related as the finding of one
issue has a direct bearing on the other issue and as such both
these issues are being taken up together. Onus to prove issue no.1
was upon the management no.1 and management no.1 was
required to prove that the workman has abandoned his
employment with the management no.1 on account of his
unauthorized absenteeism w.e.f. June, 2013, whereas onus to
Digitally
signed by
RAMESH
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prove issue no.3 was upon the workman and he had to prove that
his services were terminated by the managements illegally and
/or unjustifiably.
14 The workman claimed that he was in the employment of
the management since July 1998 and his last drawn wages was
Rs.9386/- per month and that his services were transferred from
Delhi Establishment to Plot No 135, Sector 4, IMT Manesar,
Haryana without issuing any transfer letter and the management
continued to take work at the said establishment. He further
claimed that his services were terminated from Delhi
establishment w.e.f. 03.01.2014 without assigning any valid
reason and thereafter, he sent a demand notice which was not
replied by the management. On the other hand, the defence of
the management no.1 is that the workman failed to report for his
duties and remained absent from his duties and his services were
never terminated and therefore, his claim is liable to be dismissed
and may kindly be dismissed.
15 The workman in his affidavit Ex.WW1/A reiterated the
contents of his statement of claim and he was cross examined by
Ld. Authorized Representative of the managements on both these
issues. In cross examination the workman admitted as correct
that he had lastly worked with M/s Peegee Associates at Manesar,
Haryana. He further deposed that he did not stop work with M/s
Peegee Associates at Manesar, Haryana. He further admitted as
correct that management no.1 was a contractor firm. He further
denied the suggestion that he was deployed by aforesaid firm
with Grover Sons. However, he admitted as correct that he was
having no complaint against management no.1. He further
Digitally
signed by
RAMESH
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admitted that he used to get his ESI and PF on regular basis. He
further denied the suggestion that management no.1 used to take
bonus or that G P Associates has closed his business in the year
2015 after the death of Mr. Gaurav. He further denied the
suggestion that he was absent from his duties w.e.f. June 2013.
He further denied the suggestion that he has withdrawn the
amount of PF from the competent authority. He further deposed
that he was working at A-20, Bada Bagh, Azadpur, G.T. Karnal
Road, Delhi but he did not know whether management no.1 had
its office at the aforesaid address. He further denied the
suggestion that he sent legal notice after one year of his transfer.
He further deposed that he did not have any documentary proof
to show that he was working since 1998 with the management.
He further denied the suggestion that the management started
his business activity from the year 2008. He further deposed that
he did not have any proof to show that he was working prior to
2009 with the management. He further admitted as correct that he
was working with Mukul Enterprises in the year 2007-08 and he
has filed PF Slip for the year 2007-08. He further denied the
suggestion that he stopped attending his duties w.e.f. 02.06.2013.
During his further cross examination, Ld. Authorized
Representative for managements drawn the attention of WW1
towards letters dated 06.06.2013, 14.06.2013 and 25.06.2013 and
after seeing the same, witness admitted the address mentioned on
the same as his address. The said letters dated 06.06.2013,
14.06.2013 and 25.06.2013 were marked as Mark A, B and C.
The workman further deposed that he had worked after
02.06.2013 at Plot No.135, Sector-4, IMT Manesar, Gurgaon. He
Digitally
signed by
RAMESH
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further deposed that he has not been issued any transfer letter by
the management as mentioned in para 2 of statement of claim. He
further deposed that he was asked by Mr. Jawahar orally that his
services has been transferred. He further admitted as correct that
he had not issued any demand letter to the management and also
that he was not satisfied with the work of the management as
assigned to him and for that reason, he left the services of the
management.
16 MW1 Sh. Rajan Kapoor was also cross examined by Ld.
Authorized Representative for workman and in his cross
examination MW1 deposed that G.P. Associates and P.G.
Associates are different legal identity and he is appearing on
behalf of G.P. Associates to depose in the present matter. He
further deposed that workman had joined the services of the
management in the year 2011 but denied the suggestion that
workman had joined the services of the management in July 1998.
He further deposed that management had sent three letters to the
workman on being his absent to join the services of the
management. He further denied the suggestion that management
is still operating his business. He further deposed that name of the
workman had been continued in the muster role of the
management till the closure of the management and he can
produce the attendance register containing the name of the
workman. He further deposed that lastly workman had worked
with Grover Sons, Manesar, Haryana. He further denied the
suggestion that workman had worked till 03.01.2014 or that
services of the workman had been terminated on 03.01.2014. He
further deposed that facilities of PF and ESI were given to the
Digitally
signed by
RAMESH
LIR No.237/2016 RAMESH KUMAR 9
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workman. He further deposed that he has not brought the
attendance register for the period of 2013-2015 as the same is not
traceable as management establishment is closed since
31.03.2016. He further deposed that he used to main records of
the management at the time when he was employed with the
management of G.P Associates. He further deposed that he has
not brought the Identity Card issued by the management to show
that he was working with the management but simultaneously he
volunteered that he had filed the authority letter in respect of his
employment with G.P. Associates which is exhibited as
Ex.MW1/1. He further deposed that he cannot say whether
management had issued appointment letter to the workman or not.
He further denied the suggestion that lastly the workman had
worked with the management till 03.01.2014. During his further
cross examination Ld. Authorized Representative for workman
drawn the attention of this witness towards document Ex.WW1/2
and after seeing the same, the witness submitted that the address
mentioned thereon is the correct address of the management
which is mentioned from Point A to A. He further deposed that
the letters sent to the workman i.e. Mark A, Mark B and Mark C
were sent through courier by the management. He further
admitted as correct that he has not filed the tracking report
thereon. He further denied the suggestion that the management
had never sent the above mentioned letters i.e. Mark A, Mark B
and Mark C to the workman. He further denied the suggestion
that the workman was not absenting from his duties w.e.f. June
2013. He further deposed that management had not conducted
any domestic inquiry in respect of unauthorized absence of the
Digitally
signed by
LIR No.237/2016 RAMESH 10
RAMESH KUMAR
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workman. He further denied the suggestion that the management
is still running or that the management started its business in year
2008.
17 The defence/contention of the management no.1 since
beginning is that the services of the workman have not been
terminated, rather he absented from the duty and did not join the
duty despite receiving various letters Mark A, B & C as sent by
the management no.1 regarding his unauthorized absence from
the duty. Ld. AR for managements confronted the said letters
Mark A, B & C to the workman during his cross examination and
the workman admitted that address mentioned therein are correct.
18 I have perused the said letters which are Mark A, B & C.
The said letters have been sent by the management to the
workman at his residential address which the workman admitted
thereon during his cross examination. Since the workman
admitted his signatures on letters Mark A, B & C, therefore, the
said letters can be read in evidence.
19 Further, the management has also placed on record courier
receipts Ex.MW1/2 to Ex.MW1/4 vide which the said letters
were sent to the workman. Therefore, this court is of the opinion
that the said letters were delivered to the workman, but he did not
join the duties intentionally as he did not want to join the duties
of the management no.1 as he himself admitted during his cross-
examination that he was not satisfied with the work of the
management as assigned to him and for that reason he left the
service of the management.
20 In the light of aforesaid facts and circumstances, it is held
that the management no.1 has successfully been able to prove
Digitally
signed by
RAMESH
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that the workman did not join his duties despite having received
the said letters Mark A, B & C and therefore, it stands proved
that the workman himself remained absented from the duty
unauthorizedly and thus his services cannot be said to have
terminated by the management no.1 illegally and unjustifiably in
violation of provisions of section 25 of the Industrial Disputes
Act.
21 So far as the contention of Ld. Authorized Representative
for workman that the services of workman were terminated by
the management illegally without issuing any notice, charge
sheet or without conducting any domestic enquiry in violation of
provisions of sections 25 F of the Industrial Disputes Act, 1947 is
concerned, it is a settled law that such enquiry is only required
when the management intends to inflict some punishment upon
the claimant.
22 On this point Ld. Authorized Representative for
managements has placed reliance on the judgments of the
Hon'ble High Court of Delhi titled as Diamond Toys Co. (P)
Ltd. Vs. Toofani Ram and Anr., W.P. (C) No.4501/2004 and
Tej Pal Vs. Gopal Narain & Sons & Anr. (2006) 132 DLC 311.
23 The Hon'ble Delhi High Court in Diamond Toys
Company (P.) Ltd. Vs. Toofani Ram and Anr. (supra) held
that:
"6. It is commonly known that a person, who is
working in the industry keeps on trying for better
jobs and better opportunities. The moment he gets
better job, he is free to leave his previous employer.
The industrial law does not require him to pay any
Digitally
signed by
RAMESH
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compensation to the employer while leaving his
job, as the industrial laws require an employer
to pay retrenchment compensation when employer
wants to terminate the workman. Thus, there are
no fetters on the workman on leaving the job while
there are fetters on the employer in terminating the
service of an employee. If a workman leaves his job
all of a sudden and stops attending the workplace
of the employer, Industrial Dispute Act does not
put any obligation on the employer to call back the
workman and request him to come and join his
duties. Such a request can be made by the
employer only when employer considers that a
useful workman should not leave the job or where
a workman is governed by certain rules and
regulations under State employment and the
employer is supposed to hold an enquiry under the
service rule before termination of service of an
employee. Where the workman is free to leave and
join another employer without even a notice and
without obtaining a no objection from his
employer, the employer cannot be compelled to call
such a workman for joining the duties or to
conduct an enquiry into the absence of the
workman and then terminate his services. Leaving
the services of an employer by the workman is a
valid mode of his abandonment and there is
no illegality attached to a workman leaving
the services of his previous employer and joining
another employer. If the employer does not
consider the abandonment of service or leaving the
service by a workman as a misconduct, the law
cannot force the employer to consider such
Digitally
signed by
RAMESH
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abandonment as a misconduct and hold an
enquiry. Misconduct of an employee is the one
which an employer considers as the misconduct.
An enquiry is required to be held only where an
employer intends to impose punishment on the
employee for an alleged misconduct. if an employer
does not intend to impose any punishment on the
employee and considers that if the employee has
left his service, let it be so, the law cannot compel
the employer to hold an enquiry and punish an
employee for the misconduct.
7. I consider that it was not necessary for the
employer to hold an enquiry into the abandonment
of the service by the respondent. It was for the
respondent to prove that his services were terminated for some reasons by the employer or without any reason by the employer. The respondent had taken a stand which was found to be false. Under these circumstances, the Labour Court's conclusion that it was a case of retrenchment is perverse".
The ratio of the aforesaid judgment is squarely applicable in the facts and circumstances of this case. It is reiterated that the claimant failed to discharge the onus in this case. 24 The Hon'ble High Court of Delhi in the case of "Tej Pal Vs. Gopal Narain & Sons & Anr" (supra) discussed the retrenchment as envisaged under Section 25 F is defined under Section 2 (oo) of the Industrial Disputes Act, which reads as under:-
"2 (oo) 'retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise Digitally signed by RAMESH RAMESH KUMAR LIR No.237/2016 KUMAR Date: 14 2022.04.26 16:29:59 +0530 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 reaching the age of superannuation if the contract of 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 the stipulation in that behalf contained therein or)
(c) termination of the service of a workman on the ground of continued ill-health."
A perusal of Section 2 (oo) of the Act shows retrenchment means the termination of services of a workman by management. Where management does not terminate services of the workman and writes a letter to the workman to come and join duties, no inference can be drawn that services of the workman were terminated. It was not the case of the workman before the Labour Court that after receiving letter of the management asking him to join duties, he had gone to join duties and was not allowed to join duties. The contention of the workman that employer was supposed to initiate an inquiry into his absence before terminating his services, is baseless because in this case employer had not terminated services. An employer who writes a letter to the workman to join duties since he Digitally signed by RAMESH LIR No.237/2016 RAMESH KUMAR 15 KUMAR Date:
2022.04.26 16:30:04 +0530 was absent, cannot be said to have terminated the services of the petitioner. Only if the petitioner had not been allowed to join duties on his reporting, it could have been said that his services were terminated".
25 In the present case, the workman did not join his duties and admittedly he never approached the management no.1 for joining his duty after alleged date of termination nor produced anything to prove that he was stopped by the management from joining his duties. He even has not accepted the offer to join the duties even during the proceedings. Admittedly it was the workman who has left the job as the work assigned to him by the management was not liked by him. The workman has not joined his services nor proved his willingness to join the duty. 26 On this point this court finds support from the judgment of Hon'ble Supreme Court in Vijay S. Sathaye Vs. Indian Air Lines Ltd. & Ors., SLP (C) No. 2422024221 of 2007. Relevant paras 9 to 13 of the judgment has been reproduced as under:-
"9. It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntarily abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer.
10. In M/s. Jeewanlal (1929) Ltd., Calcutta v. Its Workmen, AIR 1961 SC 1567, this court held as under:-
Digitally signed by RAMESH LIR No.237/2016 RAMESH KUMAR 16 KUMAR Date:
2022.04.26 16:30:10 +0530 "......there would be the class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee." (See also: Shahoodul Haque v. The Registrar, Cooperative Societies, Bihar & Anr., AIR 1974 SC 1896.
11. For the purpose of termination, there has to be positive action on the part of the employer while abandonment of service is a consequence of unilateral action on behalf of the employee and the employer has no role in it. Such an act cannot be termed as 'retrenchment' from service. (See: State of Haryana v. Om Prakash & Anr., (1998) 8 SCC 733).
12. In Buckingham and Carnatic Co. Ltd. v.
Venkatiah & Anr., AIR 1964 SC 1272 while dealing with a similar case, this Court observed:
"Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf." A similar view has been reiterated in G.T. Lad & Ors. v. Chemicals and Fibres India Ltd., AIR 1979 SC 582.
13. In Syndicate Bank vs. General Secretary, Syndicate Bank Staff Association & Anr., AIR 2000 SC 2198; and Aligarh Muslim University & Ors. v. Mansoor Ali Khan, AIR 2000 SC 2783, this court ruled that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he should be treated to have resigned and ceases to be in service. In such a case, there is no need to hold an enquiry or to give any Digitally signed by RAMESH LIR No.237/2016 RAMESH KUMAR 17 KUMAR Date:
2022.04.26 16:30:16 +0530 notice as it would amount to useless formalities. A similar view has been reiterated in V.C. Banaras Hindu University & Ors. v. Shrikant, AIR 2006 SC 2304; Chief Engineer (Construction) Keshava Rao (dead) by Lrs., (2005) 11 SCC 229; and Regional Manager, Bank of Baroda v. Anita Nandrajog, (2009) 9 SCC 462".
27 The contention of the workman that no notice or charge sheet was issued to him nor any enquiry was conducted by the management against him is not sustainable as it is settled that where an employer has failed to make an enquiry before dismissal or discharge of a workman, it is open for him to justify the action before the labour court by leading evidence before it. It is relevant to refer the observations of Hon'ble Supreme Court in Civil Appeal No.142/2021 titled State of Uttarakahand and Ors. Vs. Smt. Sureshwati decided on 20.01.2021. As held in the relevant para no.14:-
14. This Court has in a catena of decisions held that where an employer has failed to make an enquiry before dismissal or discharge of a workman, it is open for him to justify the action before the Labour Court by leading evidence before it. The entire matter would be open before the tribunal, which would have the jurisdiction to satisfy itself on the evidence adduced by the parties whether the dismissal or discharge was justified. A four Judge Bench of this Court in Workmen of the Motipur Sugar Factory Private Ltd. v. Motipur Sugar Factory (AIR 1965 SC 1803) held that:
11. It is now well settled by a number of decisions of Digitally signed by RAMESH RAMESH KUMAR LIR No.237/2016 KUMAR Date: 18 2022.04.26 16:30:21 +0530 this Court that where an employer has failed to make an enquiry before dismissing or discharging a workman it is open to him to justify the action before the tribunal by leading all relevant evidence before it. In such a case the employer would not have the benefit which he had in cases where domestic enquiries have been held. The entire matter would be open before the tribunal which will have jurisdiction not only to go into the limited questions open to a tribunal where domestic enquiry has been property held (see Indian Iron & Steel Co.
v. Workmen (AIR 1958 SC 130) but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified. We may in this connection refer to Sana Musa Sugar Works (P) Limited v. Shobrati Khan (AIR 1959 SC 923), Phulbari Tea Estate v. Workmen (AIR 1959 SC 1111) and Punjab National Bank Limited v. Workmen (AIR 1960 SC
160). These three cases were further considered by this Court in Bharat Sugar Mills Limited v. Jai Singh (1962) 3 SCR, 684 and reference was also made to the decision of the Labour Appellate Tribunal in Ram Swarath Sinha v. Belsund Sugar Co. (1954) LAC 697. It was pointed out that "the important effect of omission to hold an enquiry was merely this: that the tribunal would not have to consider only whether there was a prima facie case but would decide for itself on the evidence adduced whether the charges have really been made out". It is true that three of these cases, except Phulbari Tea Estate case, were on applications under Section 23 of the Industrial Disputes Act, Digitally signed by RAMESH LIR No.237/2016 RAMESH KUMAR 19 KUMAR Date:
2022.04.26 16:30:27 +0530 1947. But in principle we see no difference whether the matter comes before the tribunal for approval under Section 33 or on a reference under Section 10 of the Industrial Disputes Act, 1947. In either case if the enquiry is defective or if no enquiry has been held as required by Standing Orders, the entire case would be open before the tribunal and the employer would have to justify on facts as well that its order of dismissal or discharge was proper. Phulbari Tea Estate case was on a reference under Section 10, and the same principle was applied there also, the only difference being that in that case there was an inquiry though it was defective. A defective enquiry in our opinion stands on the same footing as no enquiry and in either case the tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the tribunal that on facts the order of dismissal or discharge was proper." Subsequently in Delhi Cloth and General Mills Co. v. Ludh Budh Singh (1972) 1 SCC 595 this Court held that: "(1) If no domestic enquiry had been held by the management, or if the management makes it clear that it does not rely upon any domestic enquiry that may have been held by it, it is entitled to straightway adduce evidence before the Tribunal justifying its action. The Tribunal is bound to consider that evidence so adduced before it, on merits, and give a decision thereon. In such a case, it is not necessary for the Tribunal to consider the validity of the domestic enquiry as the employer himself does not rely on it.
(3) When the management relies on the enquiry Digitally signed by RAMESH LIR No.237/2016 RAMESH KUMAR 20 KUMAR Date:
2022.04.26 16:30:33 +0530 conducted by it, and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management, are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.
Reliance is also placed on the judgment of this Court in Workmen of Firestone Tyre & Rubber Co. of India (P) Ltd. v. The Management of Firestone Tyre & Rubber Co. of India (P) Ltd and Others. (1973) 1 SCC 813 wherein the broad principle regarding holding of the enquiry were spelt out as:
"32. From those decisions, the following principles broadly emerge:
"(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if Digitally signed by LIR No.237/2016 RAMESH 21 RAMESH KUMAR KUMAR Date:
2022.04.26 16:30:38 +0530 applicable, and principles of natural justice. The enquiry should not be an empty formality. xxxxxx (3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide. (4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
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2022.04.26 16:30:43 +0530 (6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective. (7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective. (8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.
(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.
(10) In a particular case, after setting aside the order of dismissal, w hether a workman should be reinstated or paid compensation is, as held by this Court in Management of Panitole Tea Estate v.
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2022.04.26 16:30:49 +0530 Workmens, (1971) 1 SCC 742 within the judicial decision of a Labour Court or Tribunal. xxxxxxxx
40. Therefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under Section 11 A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case and hold that no misconduct is proved.
41. We are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference under Section 11A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to reappraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the Digitally signed by RAMESH LIR No.237/2016 RAMESH KUMAR 24 KUMAR Date:
2022.04.26 16:30:54 +0530 punishment of dismissal or discharge. That is why, according to us, Section 11A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11A."
28 The contention of the Ld. Authorized Representative for workman that no notice was issued to the workman nor any enquiry was held appears to have no substance as there is nothing on record to show that the workman joined his duties or he was stopped by the management no.1 or his services were terminated by the management no.1 illegally and unjustifiably. Therefore, it is held that the management no.1 has successfully been able to prove its stand that the services of the workman were never ever terminated by the management no.1, rather it was the workman, who himself had abandoned the job. Hence, this court is of the opinion that this is a clear case of abandonment. Therefore, keeping in view all these facts and circumstances, it is held that the services of the workman were never terminated by the management no.1 illegally and unjustifiably in violation of provisions of section 25 F of the Industrial Disputes Act, 1947.
29 Further, it is observed that the management no.1 has also
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pleaded that the workman was gainfully employed and he during his cross-examination admitted that he was not satisfied with the work of the management as assigned to him and for that reason he left the service of the Management. He also admitted that he is making his livelihood through agricultural income. 30 On this point, Ld. AR for managements has placed reliance on the judgment of the Hon'ble Supreme Court of India in North East Karnataka Road Vs. M. Nagangouda in Appeal (civil) 129 of 2007 on 9 January, 2007, wherein it was held on the said question, we are unable to accept the reasoning of the Labour Court that the income received by the respondent from agricultural pursuits could not be equated with income from gainful employment in any establishment. In our view, "gainful employment" would also include self-employment wherefrom income is generated. Income either from employment in an establishment or from self- employment merely differentiates the sources from which income is generated, the end use being the same. Since the respondent was earning some amount from his agricultural pursuits to maintain himself, the Labour Court was not justified in holding that merely because the respondent was receiving agricultural income, he could not be treated to be engaged in "gainful employment".
31 Since the workman was receiving agricultural income, therefore, it cannot be said that he was not gainfully employed. 32 In the given facts and circumstances and on the basis of material placed and proved on record and in view of aforesaid discussion, it is held that the services of the workman were never terminated by the management no.1 illegally and unjustifiably, rather he has abandoned his employment with the management no.1 on account of his unauthorized absenteeism w.e.f. June, 2013. Accordingly, issues no.1 and 3 are decided in favour of Digitally signed by RAMESH LIR No.237/2016 RAMESH KUMAR 26 KUMAR Date:
2022.04.26 16:31:06 +0530 management no.1 and against the workman. ISSUE NO.2
33 Onus to prove this issue was upon the workman and he had to prove that there exists relationship of employer and employee between him and the management no.2.
34 The workman was also cross examined by Ld. AR for managements on this issue and during his cross examination, Ld. AR for managements put a question to WW1 and he was being asked to tell to whom he is seeking relief as he has filed claim against two managements M/s G.P. Associates and M/s Peegee Associates, to which this witness replied that both managements are same and he wants to do duty with M/s G.P. Associates at Azadpur, Delhi. He further admitted as correct that he did not want to work with M/s Peegee Associates and also admitted that he had not visited at M/s Peegee Associates after June 2013 to perform his duties. He further admitted as correct that management no.2 had not issued any termination letter to him and also admitted that he had not filed any complaint against management no.2 before any authority during his service tenure. He further denied the suggestion that the address mentioned is of Grover Sons, who was the principal employer of the P.G. Associates. He further denied the suggestion that he had never worked with P.G. Associates. He further deposed that he had worked with the management for 7-8 months, but he has not placed any documents in this regard. He further denied the suggestion that he had not worked with the principal employers i.e. M/s Grover Sons for 7-8 months after June, 2013. He further denied the suggestion that Mr. Jawahar was the manager of the Digitally signed by RAMESH LIR No.237/2016 RAMESH KUMAR 27 KUMAR Date:
2022.04.26 16:31:12 +0530 principal employer at the establishment located at G.T. Karnal Road. He further denied the suggestion that at G.T. Karnal Road, the manufacturing activity/factory was of Grover Sons and that the said location manufacturing of ladies undergarments used to be undertaken. He further denied the suggestion that manufacturing was done by Grovers Sons. He further admitted as correct that the labels and tags on the manufacturing products used to be of Grover Sons. He further deposed that he was assigned the work by Mr. Jawahar, who used to be manager, supervision and control of the management.
35 A perusal of record shows that the workman did not produce any documentary evidence to show that there was any employer and employee relationship between him and management no.2.
36 Onus to prove employer and employee relationship between him and management no.2 was upon the workman but admittedly he has not placed on record any document showing his employment with management no.2. No documentary evidence has been filed by the workman by which it can be appreciated that he had been working with the management no.2. The workman has also not moved any application thereby summoning the records of the management no.2 like attendance register/wages register etc. to prove his employment with the management no.2. Otherwise also the workman is not claiming any relief against management no.2. Therefore, keeping in view all these facts and circumstances, it is held that the workman has failed to prove that there was any employee and employer relationship between him and management no.2. This issue is Digitally signed by RAMESH RAMESH KUMAR LIR No.237/2016 KUMAR Date: 28 2022.04.26 16:31:18 +0530 also decided against the workman.
ISSUE NO.4 (RELIEF) 37 In view of the findings of the court on issues no.1 to 3, it is held that the workman is not entitled to any relief against the managements and an award to that effect is passed today. Reference is answered and disposed off accordingly. 38 A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt/Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
PRONOUNCED ON 26.04.2022 THROUGH VIDEO CONFERENCING Digitally signed RAMESH by RAMESH KUMAR KUMAR Date: 2022.04.26 16:31:25 +0530 (RAMESH KUMAR-II) EARLIER POSTED AS PRESIDING OFFICER LABOUR COURT- 06/ROUSE AVENUE DISTRICT COURT NEW DELHI.
NOW POSTED AS ADDITIONAL DISTRICT JUDGE- 01/SHAHDARA DISTRICT/KARKARDOOMA COURT/DELHI.
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