Delhi District Court
M/S Oberoi Flight Catering Unit Of East ... vs Sh. Masoor Ahmed Raised An Industrial on 26 March, 2007
IN THE COURT OF SH. O.P. SAINI, PRESIDING OFFICER,
LABOUR COURT NO. VII, DELHI.
I.D. NO. : 35/2004
BETWEEN
The workman Sh. Mansoor Ahmed
S/o Sh. Mustaq Ahmed
R/o E-12/65-B, Hauz Rani,
Malviya Nagar, New Delhi.
AND
The management of
1.M/s Oberoi Flight Catering Unit of East India Hotel, Old Gurgaon Road, New Delhi.
2. M/s East India Hotel, 7, Sham Nath Marg, Delhi.
Ref.: F.24(94)/04-Lab./2525-29 dated 25.2.04.
AWARD
1. Workman Sh. Masoor Ahmed raised an industrial dispute against his illegal removal from the services, which was referred to this court for adjudication by the Secretary (Labour), Government of NCT of Delhi, in the following terms of reference :
"Whether the services of Sh. Masoor Ahmed 1 S/o Sh. Mustaq Ahmed has abandoned his services or his services have been terminated illegally and unjustifiably by the management, and if so, to what sum of money as monetary relief alongwith consequential benefits in terms of existing laws/ Govt. Notifications and to what other relief is he entitled and what directions are necessary in this respect?"
2. Brief facts of the case as made out from the record are that workman was working with the managements as assistant chef since 1977. The managements had established a unit in Saudi Arabia known as M/s Hotel Madina Oberoi. It is a branch/concern of managements no. 1 and 2. It is alleged that in April 1988 managements called upon volunteers for its employees to work at Hotel Madina Oberoi in Saudi Arabia. The managements drafted an application and got it signed from the workman on the assurance that he was being transferred temporarily to Saudi Arabia where a new unit had been established in which only Muslim employees were required. The workman not being conversant with English language signed the same. The workman worked with Hotel Madina Oberoi till 20.4.2003 and was relieved from there on the same date. On return to India he met Vice-President of managements for joining duties as per the assurance of 2 absorption given to him but he was refused duty illegally. Thereafter, he served a demand notice on the managements 22.10.2003 but to no use. He raised an industrial dispute but the same could not be settled and ultimately came to be referred to this court in the above terms of reference. The workman is unemployed since the date of his termination and despite his best efforts he could not secure alternative employment. It is prayed that since the termination of the workman is illegal and unjustified the managements may be directed to reinstate him with all consequential benefits including continuity of service and full back wages.
3. Managements contested the claim and filed their written statement admitting that workman was working with it. It is claimed that managements had entered into an agreement with Saudi Oberoi Company Limited for managements of its hotels in Saudi Arabia. However, it is denied that workman was transferred there. It is further claimed that Saudi Oberoi Company Limited is a separate unit and workman could not have been transferred to it. Hotels at Saudi Arabia are not part of the present managements as they are independent establishments. It is 3 further claimed that workman himself voluntarily approached the managements for being appointed in Saudi Arabia for better prospects. His request was considered and he was offered appointment in the said hotel in Saudi Arabia on 30.5.1998. It is further claimed that as per letter of appointment to Saudi Hotel he was to be absorbed by the present managements if there were suitable vacancy. It is further claimed that as per the agreement of the managements with the Saudi Hotels, the managements of the hotels in Saudi Arabia concluded on 30.4.2003 and accordingly the workman was relieved of his duties on that day. It is admitted that the workman approached the managements for appointment but he was refused as there was no vacancy but after considering the case the managements wanted to accommodate him and accordingly he was offered an employment at Chennai to which workman refused. As such, workman himself is responsible for his non-employment. The offer was made to him on compassionate grounds. Other allegations contained in the claim have also been denied and it is prayed that the claim is false and the same may be dismissed.
4. Workman filed rejoinder to the written statement 4 denying the averments made therein and reiterating the averments made in the claim petition.
5. On the pleadings of the parties, following issue was settled for trial by my learned predecessor vide order dated 24.01.2005:-
(i) As per terms of reference.
6. In support of his case, workman examined himself as WW-1 and placed on record his affidavit EX.WW1/1 alongwith document EX.WW1/2.
7. On the other hand, managements has examined MW-
1 Sh. Rakesh Sareen, who has placed on record his affidavit EX.MW1/A alongwith documents EX.MW1/1 to 4.
8. I have heard the arguments at the bar and have carefully gone through the file.
9. My findings on the issue are as under:-
It is submitted by the learned Authorized Representative (AR) for the workman that he was terminated 5 illegally and unjustifiably. He was working with the managements since 1977. The managements transferred him to Saudi Arabia against his wishes on the pretext that only Muslims can be posted in Saudi Arabia and when he returned to Delhi he was refused duty. It is repeatedly claimed that workman neither volunteered to be posted in Saudi Arabia nor took any full and final settlement nor resigned his job for being appointed in Saudi Arabia. It is repeatedly claimed that the act of the managements amounts to termination of the services of the workman illegally and unjustifiably and the same may be set aside and the workman may be ordered to be reinstated with full back wages.
10. On the other hand, learned AR for the managements submitted that workman himself sought an employment in Saudi Arabia in a hotel managed by the present managements but the hotel was not part of the managements. Hotel Madina Oberoi is separate and independent unit and had nothing to do with the managements and, as such, on being appointed to that hotel in Saudi Arabia the workman seized to be an employee of the managements. However, the managements offered him an appointment at Chennai and he refused to 6 accept the same, as such, he is guilty of abandonment of employment. It is claimed that managements were under no obligation to provide him job on his return to India. My attention has been invited to the following authorities:-
(I) M/s Purafil Engineers, Pune Vs. Shaikh Anwar Abdul Rahman, 2000 (84) FLR 144.
(II) Competition Printing Press Vs. Shriut Jaiprakash Singh and another, 2001 (89) FLR 809.
11. Both the parties have also invited my attention to the cross-examination of the witnesses.
12. It is the admitted case of the parties that the workman was employed with the managements. It is also their admitted case that he was appointed to Hotel Madina Oberoi on 30.5.1988. It is also their admitted case that the workman was relieved from his duties from the said hotel on 30.4.2003. However, the questions are: What were the terms on which the workman was appointed/transferred in Saudi Arabia? Whether hotel in Saudi Arabia is part of the present managements? Whether the managements were obliged to take the workman back on duty on his return from Saudi Arabia? I may add at the very outset that the managements 7 have placed on record memorandum EX.WW1/DMB dated May 30, 1988. The managements have relied heavily on this document in support of their claim. However, I may say that this document has no value in the eyes of law as it is the only first page of the entire memorandum and the whole of the memorandum has not been placed on record by the managements. Not only this, the last paragraph of the page is not complete and the most crucial line has been obliterated, perhaps deliberately, at the time of photocopying the document, as it contains the terms which shall govern the workman during his tenure in the foreign land. This document is of no help to the managements.
13. The claim of the managements is that workman himself approached the managements for being appointed in Saudi Arabia for better prospects. It is also their case that the hotel at Saudi Arabia is a separate and independent unit and there was an agreement between the present managements and that hotel. However, no document has been placed on record to this effect. MW-1 Sh. Rakesh Sareen categorically admitted in the cross-examination that these documents are not available with the managements. He even sought an 8 adjournment for producing these documents in the court but on the next date expressed his inability to produce those documents. In the cross-examination he even took the plea that workman orally resigned his job with the present managements when he was selected by Saudi Arabia Hotel but he did not produce any documentary evidence in this regard. He further claims in the cross-examination that account of the workman was finally settled when he left for Saudi Arabia, but he again failed to produce any document to the effect that his account was settled. If the workman had resigned or finally settled his accounts with the present managements or volunteered himself to be posted in Saudi Arabia with a separate and independent employment, the documents must have been in possession of the managements but it has not produced any document on record. In these circumstances, an adverse inference has to be drawn against the managements that they have taken a false and unjustified plea to the effect that the workman offered himself for an appointment in Saudi Arabia, resigned his job, took his full and final settlement and thereafter, joined at Saudi Arabia. Even if, their document EX.WW1/DMB is believed to be correct, even then this document speaks of his transfer and not 9 of his resignation orally or in writing.
14. It is next contended by the managements that an offer was made to him to join at Chennai but he refused to join, as such, he abandoned his employment. This plea is also against the law as well as facts on the file. If the workman was working at Delhi, the managements were duty bound to let him join his duties at Delhi on his return from Saudi Arabia and thereafter they were at liberty to deal with him as per their service rules. The managements cannot be allowed first to refuse him duty at Delhi and then ask him to join duty at Chennai on compassionate grounds. When the workman was transferred from Delhi to Saudi Arabia, the managements were under obligation to let him join at Delhi. The managements have failed to prove that it is the workman who is responsible for abandoning his job. There is no question of abandonment and it amounts to termination and the termination in such a way that it amounts to retrenchment within the meaning of law.
15. It is a settled proposition of law that plea of abandonment is not to be presumed or to be accepted readily. 10 In this regard I am fortified by an authority reported as G.T. Lad & Ors. Vs. Chemicals & Fibres of India Ltd. 1979 AISLJ 318, wherein Hon'ble Supreme Court observed that for deciding whether there is abandonment of service or termination, following points are to be kept in mind :-
(a) To constitute abandonment there must be total or complete giving up of duties so as to indicate an intention not to resume the same.
(b) 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.
(c) Whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstances of each case.
(d) If the employees absent themselves from the work because of strike in enforcement of their demands, there can be no question of abandonment of employment by them.
16. Section 2 (oo) of the Industrial Disputes Act (hereinafter to be referred as the "Act") defines "retrenchment" as under:-
"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 -11
(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 a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill-
health"
17. Section 25 F of the Act, provides conditions to be complied with at the time of retrenchment of a workman and lays down as under :-
"No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at 12 the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government for such authority as may be specified by the appropriate Government by notification in the Official Gazette"
18. In an authority reported as S.M. Nilajkar & Ors. Vs. Telecom District Manager, Karnataka (2003) 4 SCC 27, Hon'ble Supreme Court dealt with the meaning of "retrenchment" and observed in paragraph 12 as under :-
"12. "Retrenchment" in its ordinary connotation is discharge of labour as surplus though the business or work itself is continued. It is well settled by a catena of decisions that labour laws being beneficial pieces of legislation are to be interpreted in favour of the beneficiaries in case of doubt or where it is possible to take two views of a provision. It is also well settled that Parliament has employed the expression "the termination by the employer of the service of a workman for any reason whatsoever" while defining the term "retrenchment", which is suggestive of the legislative intent to assign the term "retrenchment" a meaning wider than what it is understood to have in common parlance. There are four exceptions carved out of the artificially extended meaning of the term "retrenchment", and therefore, termination of service of a workman so long 13 as it is attributable to the act of the employer would fall within the meaning of "retrenchment" dehors the reason for termination. To be excepted from within the meaning of "retrenchment" the termination of service must fall within one of the four excepted categories. A termination of service which does not fall within categories (a), (b), (bb) and (c) would fall within the meaning of "retrenchment.
19. In view of the facts and law quoted above I am satisfied that the workman was terminated by the managements illegally and unjustifiably and the workman is not guilty of abandonment. Since the termination is illegal and unjustified, I set the same aside.
20. Now the question is : To what relief the workman is entitled? It is submitted by the workman that he is unemployed since the date of his termination. It is submitted by him that he may be ordered to be reinstated with full back wages while the managements have opposed it. In an authority reported as The workmen of M/s Firestone Tyre & Rubber Co. of India (Pvt.) Ltd. etc. vs. The Management & Ors. etc, 1973 (1) SCC 813, Hon'ble Supreme Court while dealing with the relief to be granted to 14 the workman observed in paragraph 32 sub paragraph 10 as under:
"10. In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in The Management of Panitole Tea Estate Vs. The workmen (1971) 1 SCC 742 within the judicial decision of a Labour Court of Tribunal."
21. Similarly, in another authority reported as 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 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 15 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.......................................................... ......................................................................."
22. In another authority reported as M.L. Binjolkar Vs. State of Madhya Pradesh, 2005 VI (S.C.) 413, Hon'ble Supreme Court observed in paragraph 7 as under :
"................ Though the High Court has not specifically dealt with the question as to what would be the appropriate quantum, keeping in view the law laid down by this Court in various cases e.g. Hindustan Motors Ltd. Vs. Tapanj Kumar Bhattarcharya & Anr. (2002 (6) SCC 41), Rajendra Prasad Arya Vs. State of Bihar (200 (9) SCC 514), Sonepat Cooperative Sugar Mills Ltd. Vs. Ajit Singh (2005 (3) SCC 232), Haryana State Cooperative Land Development Bank Vs. Neelam (2005 (5) SCC 91), Manager, Reserve Bank of India, Bangalore Vs. S. Mani & Ors. (2005 (5) SCC 100) and Allahabad Jal Sansthan Vs. Daya Shankar Rai & Anr. (2005 (5) SCC 124), we do not find any scope for interference. The earlier view was that whenever there is interference with the order of termination or retirement, full back wages were the natural corollary. It has been laid down in the cases noted above that it would depend upon several factors 16 and the court has to weigh the pros and cons of each case and to take a pragmatic view. ........."
23. Similarly in a recent authority reported as U.P. State Brassware Corporation Limited and another Vs. Uday Narain Pandey, (2006) 1 SCC 479, Hon'ble Supreme Court observed in paragraph 56 as under:-
56. A Division Bench of this Court in M.L. Binjolkar v. State of M.P. (2005) 6 SCC 224, referring to a large number of decisions, held:
(SCC p. 228, para 6) "6 [7] ... The earlier view was that whenever there is interference with the order of termination or retirement, fullback wages were the natural corollary. It has been laid down in the cases noted above that it would depend upon several factors and the Court has to weigh the pros and cons of each case and to take a pragmatic view."
24. In view of the law quoted above it is by now an established rule that reinstatement with full back wages are not natural consequence of termination being set aside. While considering the reinstatement with back wages numerous factors are to be considered including the service length of the workman, the nature of relationship between the parties, the 17 fact whether reinstatement would lead to industrial peace or would it aggravate a tense situation. It has to be considered whether compensation would be a better alternative to reinstatement. In the present case the workman was employed with the managements since 1977. For a long period he worked outside the country. A long period has elapsed since his return to India. In these circumstances it would not be appropriate to grant reinstatement. I consider that award of compensation would serve ends of justice better. Considering the service length of the workman, his pay, his long service in a foreign country as well as the fact that there were no complaints against him, I consider that a compensation of Rupees two lakhs (Rs.2,00,000/- only) would serve the ends of justice well. I accordingly grant a compensation of Rs. two lakhs (Rs.2,00,000/- only) to the workman to be paid by the managements within a month after the publication of the award failing which they shall be liable to pay interest @ 9% per month. The issue is accordingly decided in favour of the workman and against the managements.
25. In view of above discussion, reference is answered in 18 above terms and award is passed accordingly. Six copies of the award be sent to the appropriate Govt. for publication. File be consigned to record room.
Announced in open court. ( O.P. SAINI ) DATED : 26.03.2007 PRESIDING OFFICER :
LABOUR COURT NO.VII : DELHI 19
26.03.07 Present: Workman in person.
None for managements.
Vide my separate order award is passed in favour of the workman and against the management. A compensation of Rs. two lakhs (Rs.2,00,000/- only) granted to the workman. Six copies of the award be sent to the appropriate Government for publication. File be consigned to record room.
POLC-VII/ 26.03.07 20