Delhi District Court
32. In Kendriya Vidhyalaya Sanghathan ... vs . S. C. Sharma on 29 May, 2008
IN THE COURT OF SH. HARISH DUDANI: PRESIDING OFFICER, LABOUR
COURT NO. XVII, KARKARDOOMA COURTS, DELHI
ID NO. 162/2007
BETWEEN
The workmen
1.Sh. Satyabir Singh
2. Sh. Sukhpal,
3. Sh. Ram Gopal,
4. Sh. Mangal Prasad,
5. Sh. Shyam Lal,
6. Sh. Madhu Kant Jha,
7. Sh. Peer Mohammad,
8. Sh. Surender Singh,
9. Sh. Vijay Bahadur &
10.Sh. Gorakh Nath C/o All India Engineering & General Mazdoor Union, E - 127, Karampura, New Delhi - 110015.
AND The Management of M/s. Vishal Udyog, WP - 390, Wazirpur Village, Delhi - 110052.
Date of institution of the case : 02.03.1996 Date of reserving the award : 23.05.2008 Date of announcement of award : 29.05.2008 AWARD
1. The National Capital Territory of Delhi through its Secretary (Labour) vide reference no. F.24(228)/96 - Lab.14235-40 dt.16.02.1996 referred the dispute for adjudication between the management of M/s. Vishal Udyog and its workmen Sh. Sayavir Singh, Sh. Sukhpal, Sh. Ram Gopal, Sh. Mangal Contd.....
Prasad, Sh. Shyam Lal, Sh. Madhu Kant Jha, Sh. Peer Mohammad, Sh. Surender Singh, Sh. Vijay Bahadur & Sh. Gorakh Nath in the following terms of reference:-
"Whether the services of Sh. Satyabir Singh, Sh.
Sukhpal, Sh. Ram Gopal, Sh. Mangal Prasad, Sh.
Shyam Lal, Sh. Madhu Kant Jha, Sh. Peer Mohammad, Sh. Surender Singh, Sh. Vijay Bahadur & Sh. Gorakh Nath have been terminated illegally and/or unjustifiably by the management, and if so, to what relief are they entitled and what directions are necessary in this respect?"
2. The workmen have filed statement of claim stating therein that they have been employed with the management as per particulars furnished below:-
S.No. Name Designation Service Salary per Date of
period month termination
1 Sh. Satyabir Singh Die-maker 01/04/83 Rs.1900/- 16.05.1995
2 Sh. Sukhpal Pressman 10/06/83 Rs.1700/- 24.07.1995
3 Sh. Ram Gopal Pressman 08/06/85 Rs.1100/- 24.07.1995
4 Sh. Mangal Prasad Weeding Man 02/06/82 Rs.1200/- 24.07.1995
5 Sh. Shyam Lal Cutting Man 05/06/80 Rs.1200/- 24.07.1995
6 Madhu Kant Jha Packer 05/06/85 Rs.950/- 24.07.1995
7 Peer Mohd. Hand pressman 15/05/84 Rs.900/- 24.07.1995
8 Surinder Singh Weeding Man 08/06/90 Rs.1100/- 24.07.1995
9 Vijay Bahadur Helper 06/06/88 Rs.750/- 24.07.1995
10 Gorakh Nath Security Guard 07/04/89 Rs.800/- 24.07.1995
Contd.....
The workmen were working sincerely and diligently to the satisfaction of management and never gave any chance of complaint to the management. The management was not providing the legal facilities i.e appointment letter, attendance card, annual leave, leave wages, leave book and minimum wages and the workmen were demanding the said facilities from the management on which management got annoyed and terminated the services of workmen without assigning any reason. It is stated that at the time of appointment of workmen the management had obtained signatures of workmen on some blank papers. The workmen made complaint to Labour Authorities but despite intervention of the Labour Authorities, the management refused to take the workmen on duty. Labour Inspector submitted a report dt. 03.01.1996 to the Union to this effect. The workmen sent notices of demand dt. 05.08.1995 and 12.08.1995, but the workmen were not reinstated. It is stated that the services of the workmen have been terminated in violation of provision of Section 25F of the I.D. Act It is stated that the workmen are unemployed since the date of termination of their services. It is prayed that an award be passed thereby reinstating the workmen in service with full back wages and continuity of service.
3. Notice of the statement of claim was issued to the management and my Ld. Predecessor was pleased to proceed the management ex-parte vide order dt. 27.03.2000 and the case was fixed for ex-parte evidence of workmen and the workmen examined Sh. Satyabir Singh as WW1, Sh. Surender Singh as WW2, Sh. Ram Gopal as WW3, Sh. Mangal Prasad as WW4, Sh. Shyam Lal as WW5, Sh. Pir Mohammad as WW6 and Sh. Vijay Bahadur as WW7.
Contd.....
Thereafter my Ld. Predecessor was pleased to pass an ex-parte award dt. 29.05.2001 wherein it was held that the workmen Sh. Sukhpal, Sh. Madhu Kant Jha and Sh. Gorakh Nath have failed to adduce their evidence and other seven workmen were directed to be reinstated in service with full back wages @ their last drawn salary @ minimum wages prescribed by the appropriate Government whichever is higher from the date of termination of their services. The ex-parte award dt. 29.05.2001 passed by my Ld. Predecessor was set aside by Hon'ble High Court vide order dt. 27.09.2007 passed in WP(C) No. 9075/2006 and the matter was remanded back to the Labour Court for adjudication in accordance with law.
4. The management has filed reply/W.S. to the statement of claim and has contested the same. In the W.S. the management has taken the objection that the reference is bad in law as the matter relates to the illegal and unjustified strike of the workmen who struck work abruptly on 24.7.1995 without any valid reason and consequently the management was compelled to close down its business. It is stated that the workman Sh. Satyabir Singh informed the management on 16.5.1995 that he has got a better job elsewhere and he was required to join the new assignment with immediate effect and the management objected to the same in as much as the workman was required to give notice to the management so that the management could make an alternative arrangement, but the workman Sh. Satyabir Singh did not care for the objection of the management and went away. It is stated that other workmen i.e workmen no. 2 to 12 acting in combination and under common understanding refused to work without any valid reason and as a result of Contd.....
which the management had to close down its factory and suffered huge loss and the management addressed letters dt. 31.07.1995, 05.08.1995 (addressed individually to all the workmen) and letter dt. 25.09.1995 calling upon the workmen to resume the duty forthwith and the copies of the said letters were sent to the Labour Commissioner, but the workmen did not care for the same and they did not send any response which shows that the workmen were not interested in continuing their job with the management and they voluntarily abandoned their job. The management has admitted the date of joining, the designation and wages of the workmen as mentioned in the statement of claim. The management has denied that the services of workmen were terminated by the management, as alleged. It is denied that the management was not providing the statutory facilities to the workmen and the workmen were orally demanding the same on which the management got annoyed and terminated the services of workmen, as alleged. It is stated that the management repeatedly requested the workmen to resume duties and on account of duties not being joined by the workmen, the management was forced to close down its factory. It is stated that the workmen are not entitled to any relief.
4. The workmen have filed rejoinder to the written statement of management. In the rejoinder, the workmen have reiterated the contents of statement of claim and have controverted the allegations of the management as stated in the written statement.
5. From the pleadings of the parties, following issues were framed on 11.04.2008:-
Contd.....
1. Whether the workman Sh. Satyabir voluntarily left the job of management as stated in para 2 of PO of W.S., if so its effect? OPM.
2. Whether the workmen No. 2 to 10 refused to work without any valid reason and they did not join the duties of management despite letters sent to them by the management as stated in paras 3 and 4 of PO of W.S., if so its effect? OPM
3. Whether the management has been closed w.e.f. 24.07.1995 as stated in para 1 of PO of W.S., if so its effect? OPM.
4. As per terms of reference.
6. To prove their case, the workmen have examined Sh. Satyabir Singh as WW1, Sh. Surender Singh as WW2, Sh. Ram Gopal as WW3, Sh. Mangal Prasad as WW4, Sh. Shyam Lal as WW5 and Sh. Peer Mohammad as WW6.
AR for workmen closed WE on 19.04.2008.
7. The management examined Sh. Vinod Aggarwal, Proprietor of the management as MW1 and AR for management closed ME on 20.05.2008.
8. I have heard ARs for both parties and carefully perused record. My findings on specific issues are as under:
ISSUE NO. 1
9. In the statement of claim it is stated that the workman Sh. Satyabir Singh has been in the employment of management since 01.04.1983 as Die- maker and the management was not providing the legal facilities and on demand of the same, the management got annoyed and terminated the services of workman Sh. Satyabir Singh on 16.05.1995. In para 2 of PO of Contd.....
W.S. the management has stated that the workman Sh. Satyabir Singh informed the management on 16.05.1995 that he had got a better job elsewhere and he was required to join his new assignment with immediate effect but the management objected to the same, but the workman Sh. Satyabir Singh did not care for the objection of the management and went away.
10. The contract of service comes to an end where the workman abandons his job but 'abandonment of service' has not been defined in the Act. Etymologically, the work ' abandonment' has been explained to mean ' to leave completely and finally' ; forsake utterly; to relinquish, to renounce, to give up all concern in something; relinquishment of an interest or claim; abandonment when used in relation to an office means 'voluntary relinquishment'. In order to constitute an 'abandonment', therefore, there must be a total or complete giving up of the duties, so as to indicate an intention not to resume the same. Abandonment must be total and under circumstances which clearly indicate an absolute relinquishment. A failure to perform the duties pertaining to an office, must be with an actual or imputed, intention on the part of the officer to abandon and relinquish the office'.
11. In Buckingham & Carnatic Co. Ltd. v. Venkatayya (1963) 2 LLJ 638 Hon'ble Supreme Court held that 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.
12. In GT Lad v. Chemicals and Fibres of India 1979 Lab IC 290, Hon'ble Supreme Court held that:
Contd.....
However, the "intention may be inferred from the acts and conduct of the party'. The question as to whether the job, in fact has been abandoned or not, is a question of fact which is to be determined in the light of the surrounding circumstances of each case. It was further held that a temporary absence from duty cannot be treated as abandonment, but it must be a permanent break intended by the workman.
13. In Dr. (Mrs.) Daksha Sankhla v. Jai Narain Vyas University, Jodhpur and others, 2001 LLR 1071 Hon'ble Court held:
There is distinction between retrenchment and
abandonment from service. The termination
contemplates an act on the part of the employer which puts an end to service to fall within the definition of the expression retrenchment and in case the workman does not report for duty, it would amount to abandonment of services by the employee of his free will and the employer would have done nothing, whatsoever, to put an end to his employment and, therefore, the case does not fall within the meaning of "retrenchment".
14. To prove his case workman Sh. Satyabir Singh appeared in the witness box as WW1 and he adduced evidence by way of affidavit Ex. WW1/A. In his affidavit Ex. WW1/A the workman Sh. Satyabir Singh has stated that his services were terminated on 16.05.1995 and thereafter he made complaint with other workers to the Labour Authorities on 28.07.1995 but he was not reinstated and he sent letters dt. 05.08.1995 and 12.08.1995 to the management through Union, but he was not reinstated. The workman/WW1 Contd.....
stated in the cross - examination that he has worked with the management till 16.05.1995. The workman/WW1 denied suggestion of management in the cross - examination that he voluntarily left the services of management. The management examined Sh. Vinod Aggarwal as MW1 who has tendered affidavit Ex. MW1/A in respect of workman Sh. Satyabir Singh. In the W.S., the management has taken the plea that the workman Sh. Satyabir Singh voluntarily left the services of management on 16.05.1995 as he had got a better employment. But in para 2 of the affidavit Ex. MW1/A the management has stated that the workman Sh. Satyabir Singh under common understanding in complicity with other workers collectively stopped attending to his duties abruptly w.e.f. 24.07.1995 without any valid reason. In para 4 of the affidavit Ex. MW1/A the management has stated that all the workers acted in combination and their refusal to work w.e.f. 24.07.1995 was under common understanding. The management has taken the plea that management had sent letters to the workman thereby directing to join the duties despite that he did not join the duties of the management. MW1 admitted in the cross - examination that he had received notice dt. 05.08.1995 from the workman. MW1 further stated in the cross - examination that the management had sent reply to the notice dt. 05.08.1995 to the workers. It is to be noted that case of the other workers except workman Sh. Satyabir Singh is that their services were terminated on 24.07.1995 and they sent notices to the management on 05.08.1995 and 12.08.1995. The workman Sh. Satyabir Singh has also taken the plea that after termination of his services on 16.05.1995 he had sent Contd.....
notices to the management alongwith other workers on 05.08.1995 and 12.08.1995. In para 4 of PO of W.S. the management has stated that it had sent letters dt. 31.07.1995, 05.08.1995 and 25.09.1995 to the workers thereby calling them to resume their duties. The management has neither pleaded nor proved that the management sent any letter to the workman Sh. Satyabir Singh before alleged termination of other workers i.e on 24.07.1995, thereby directing workman Sh. Satyabir Singh to join the duties of the management immediately. The management has pleaded that first letter which was sent to workman Sh. Satyabir Singh is dated 31.07.1995. The management has not explained that if only workman Sh. Satyabir Singh was absent from duties of the management from 16.05.1995 then why no letter was sent to him immediately after 16.05.1995 thereby directing him to join duties of the management. The plea of the management is that the letter dated 05.08.1995 Ex. MW1/1 was sent to workmen. The workmen have pleaded that no such letter was ever sent to the workmen by the management and it is a fabricated document. In letter Ex. MW1/1 the management has stated that the workman Sh. Satyabir Singh has been absenting from duties of the management since 24.07.1995. It is to be noted that the case of workman Sh. Satyabir Singh is that his services were terminated on 16.05.1995 and the management has stated that the workman Sh. Satyabir Singh has been absenting from duties of the management from 16.05.1995. But the management has not explained Contd.....
that if workman Sh. Satyabir Singh was absenting from duties of the management since 16.05.1995 then why in letter Ex. MW1/1 it was mentioned that he has been absenting from duties since 24.07.1995. The management has pleaded that copy of the letter dt. 05.07.1995 was also sent to Labour Commissioner and the said copy which was sent to Labour Commissioner is Ex. MW1/2. In Ex. MW1/2 which is addressed to Labour Commissioner the management has stated that you have been absent from duties since 24.07.1995. If any letter was addressed by the management to the Labour Commissioner then in the said letter the management would have mentioned that the workman Sh. Satyabir Singh has been absenting from duties since 16.05.1995, but in the letter Ex. MW1/2 which was allegedly sent to Labour Commissioner it is stated that he (Labour Commissioner) has been absent from duties since 24.07.1995. The letters Ex. MW1/1 and Ex. MW1/2 do not prove the case of the management that the management sent any letter to the workman Sh. Satyabir Singh thereby informing him that he has been absent from duties since 16.05.1995 and the workman Sh. Satyabir Singh was directed to join the duties of the management. The management has relied on envelopes Mark B and Mark C in order to prove that the letters were sent to workman Sh. Satyabir Singh. The envelope Mark C does not bear any stamp of postal authorities which could prove that it was dispatched to the addressee mentioned therein through postal authorities. Moreover, even if it is presumed that envelopes Mark B and Mark C were sent to the workman Sh. Satyabir Contd.....
Singh containing letter dt. 05.08.1995 Ex. MW1/1, but the said letter i.e Ex. MW1/1 does not prove the case of the management that they had informed the workman Sh. Satyabir Singh that he has been absent from duties since 16.05.1995 and the workman Sh. Satyabir Singh was directed to resume duties immediately. The management has failed to prove that any letter was sent to workman Sh. Satyabir Singh thereby informing him that he has been absent from duties of the management since 16.05.1995 and he was directed to resume duties of the management. MW1 stated in the cross - examination that the management has not issued any memo or charge - sheet to the workers and no enquiry was conducted against the workers. The management has not explained that if the workman Sh. Satyabir Singh had absented from the duties of the management then why no memo or charge - sheet was issued to him regarding his unauthorized absence and then why no enquiry into his alleged absence was conducted by the management. The management has also not proved that any conclusion was recorded by the management that it is not reasonably practical to hold any such enquiry. The evidence adduced on record has proved that the management has terminated the services of workman Sh. Satyabir Singh on 16.05.1995 and the management has made a lame excuse that the workman Sh. Satyabir Singh voluntarily left the services of the management on 16.05.1995. This issue stands answered accordingly.
ISSUE NO. 2
15. Appropriate Government has made reference in respect of workman Sh. Satyabir Singh and nine other workmen. My Ld. Predecessor had passed Contd.....
an ex-parte award dt. 29.05.2001 and as per the said award the workmen Sh. Sukhpal, Sh. Madhu Kant Jha and Gorakh Nath have failed to adduce evidence and they were not even entitle for any relief. Before passing of the ex-parte award dt. 29.05.2001 the workmen Sh. Satyabir Singh had examined himself as WW1, Sh. Surender Singh as WW2, Sh. Ram Gopal as WW3, Sh. Mangal Prasad as WW4, Sh. Shyam Lal as WW5, Sh. Peer Mohammad as WW6 and Sh. Vijay Bahadur as WW7. Ex-parte award dt. 29.05.2001 passed by my Ld. Predecessor was set aside by the Hon'ble High Court vide order dt. 27.09.2007 passed in WP(C) No. 9075/06. Thereafter, the workman Sh. Satyabir Singh appeared in the witness box as WW1, Sh. Surender Singh as WW2, Sh. Ram Gopal as WW3, Sh. Mangal Prasad as WW4, Sh. Shyam Lal as WW5 and Sh. Peer Mohammad as WW6 and AR for workmen closed WE on 19.04.2008. The workmen Sh. Sukhpal, Sh. Madhu Kant Jha, Sh. Gorakh Nath and Sh. Vijay Bahadur have not proved the allegation that their services have been terminated illegally and/or unjustifiably by the management.
16. In the statement of claim the workmen except the workman Sh. Satyabir Singh have stated that the management was not providing statutory facilities and they were demanding the same from the management on which management got annoyed and terminated their services illegally on 24.07.1995. In the W.S. the management has stated that all the workmen except the workman Sh. Satyabir Singh acting in combination and under common understanding refused to work without any valid reason and the management sent letters dated 31.07.1995, 05.08.1995 and 25.09.1995 to Contd.....
them calling upon them to resume the duties and copies of the said letters were endorsed to the Labour Commissioner also and the workmen did not report for duties. WW2 Sh. Surender Singh, WW3 Sh. Ram Gopal, WW4 Sh. Mangal Prasad, WW5 Sh. Shyam Lal and WW6 Sh. Peer Mohammad have adduced evidence by way of affidavits Ex. WW2/A, Ex. WW3/A, Ex. WW4/A, Ex. WW5/A and Ex. WW6/A and in their affidavits they have reiterated the contents of statement of claim that their services were illegally terminated by the management on 24.07.1995.
17. Workman/WW2 Sh. Surender Singh denied suggestions of management in the cross - examination that the management has not terminated his services and he voluntarily stopped reporting for duties. In the cross - examination of WW2 no suggestions have been given to the effect that the management sent letters dated 31.07.1995, 05.08.1995 and 25.09.1995 to him but despite the said letters he did not join the duties. In the cross - examination workman/WW2 stated that he became member of All India Engineering & General Mazdoor Union after disengagement from the management. In the cross - examination the workman/WW2 further stated that he does not know whether the management had written any letter to the aforesaid Union on 31.07.1995 for directing the workman to join the duties. The plea of the management is that the letter was sent to workman/WW2 vide envelope Mark E which was received back undelivered. The plea of AR for workmen is that the envelope Mark E is fabricated document and no postal receipt in respect of the same has been proved by the management. The Contd.....
management has not proved any postal receipt or any other document issued by the postal authorities in order to prove that the envelope Mark E was dispatched to the addressee mentioned therein and the endorsement on the same is by postal authorities and the same is correct. Moreover, the plea of the management in the W.S. is that it had sent three letters i.e letters dt. 31.07.1995, 05.08.1995 and 25.09.1995 to the workmen but the management has not proved the dispatch of the aforesaid three letters to the workman.
18. Workman/WW3 Sh. Ram Gopal stated in the cross - examination that he lastly worked with the management on 24.07.1995 and he stated in the cross - examination that the management had not provided any other statutory benefits except ESI Card. The workman/WW3 denied suggestion of management in the cross - examination to the effect that he voluntarily left the services of the management. Workman/WW3 stated in the cross - examination that he does not know whether the management had sent any letter dt. 31.07.1995 to the Union thereby calling upon the Union to direct the workman to join duties. Workman/WW3 admitted in the cross - examination that the envelope Mark H and Mark I bear his correct address. The contention of AR for workmen is that the envelopes Mark H and Mark I are fabricated documents and no receipt in respect of dispatch of the same has been proved by the management. The management has not proved any postal receipt or any other document issued by the postal authorities in order to prove that the envelopes Mark H and Mark I were dispatched to the addressee mentioned Contd.....
therein and the endorsements on the same are by postal authorities and the same are correct. In the cross - examination of workman/WW3 the management has not given any suggestion to the effect that the management sent him letters dt. 31.07.1995, 05.08.1995 and 25.09.1995 but despite that he failed to join the duties of the management.
19. The workman/WW4 Sh. Mangal Prasad denied suggestion of management in the cross - examination to the effect that the management had sent him letters thereby directing him to join duties but he did not join the duties of the management. Workman/WW4 stated in the cross - examination that he does not know whether the management had sent any letter dt. 31.07.1995 to the Union thereby calling upon the Union to direct the workmen to join duties. Workman/WW4 Sh. Mangal Prasad admitted in the cross - examination that envelopes Mark F and Mark G bear his correct address. The contention of AR for workmen is that the envelopes Mark F and Mark G are fabricated documents and no postal receipt in respect of the same has been proved by the management. The management has not proved any postal receipt or any other document issued by the postal authorities in order to prove that the envelopes Mark F and G were dispatched to the addressee mentioned therein and the endorsements on the same are by postal authorities and the same are correct. In the cross - examination of workman/WW4 the management has not given any suggestion to the effect that the management sent him letters dt. 31.07.1995, 05.08.1995 and 25.09.1995 but despite that he failed to join the duties of the management.
Contd.....
20. WW5 Sh. Shyam Lal stated in the cross - examination that the management was not providing the statutory facilities of PF and bonus etc. and he denied suggestion of management in the cross - examination to the effect that he voluntarily left the services of management. WW5 further stated in the cross - examination that the management had terminated his services alongwith other workers. WW5 stated in the cross - examination that he does not know whether the management had sent any letter dt. 31.07.1995 to the Union thereby calling upon the Union to direct the workmen to join duties. In the cross - examination WW5 denied that envelope Mark J bears his correct address. The contention of AR for workmen is that the envelope Mark J has been fabricated by the management and the management has not proved any postal receipt in respect of dispatch of the said envelope to the workman. The management has not proved any postal receipt or any other document issued by the postal authorities in order to prove that the envelope Mark J was dispatched to the addressee mentioned therein and the endorsement on the same is by postal authorities and the same is correct. In the cross - examination of WW5 the management has not given any suggestion to the effect that the management sent him letters dt. 31.07.1995, 05.08.1995 and 25.09.1995 but despite that he failed to join the duties of the management.
21. WW6 Sh. Peer Mohammad stated in the cross - examination that the management had pushed him out of the employment and after termination of his services he met Sh. K.K. Shukla of the Union. WW6 stated in the cross -
Contd.....
examination that he does not know whether the management had sent any letter dt. 31.07.1995 to the Union thereby calling upon the Union to direct the workmen to join duties. WW6 denied suggestion of management in the cross - examination that he voluntarily left the services of management in collusion with other workers. WW6 admitted in the cross - examination that envelope Mark K bears his correct address. The contention of AR for workmen is that the envelope Mark K has been fabricated by the management and the management has not proved any postal receipt in respect of dispatch of the said envelope to the workman. The management has not proved any postal receipt or any other document issued by the postal authorities in order to prove that the envelope Mark K was dispatched to the addressee mentioned therein and the endorsement on the same is by postal authorities and the same is correct. In the cross - examination of WW6 the management has not given any suggestion to the effect that the management sent him letters dt. 31.07.1995, 05.08.1995 and 25.09.1995 but despite that he failed to join the duties of the management.
22. The plea of the management is that the workmen had voluntarily left the services of management and the management sent them letters dt. 31.07.1995, 05.08.1995 and 25.09.1995 but despite that the workman did not report for duties and the copies of the said letters were also sent to the Labour Commissioner. The management has relied on the letter dt. 31.07.1995 Ex. MW1/4 which was allegedly sent to the General Secretary of the Union. The workmen denied in the cross - examination that they were in the receipt of any Contd.....
such letter by the Union. The management has not summoned any official of the Union in order to prove that the letter dt. 31.07.1995 Ex. MW1/4 was received by the Union of the workmen. Although, the management has relied on Ex. MW1/4 in order to prove that the said letter was sent to the Union, but in the W.S. the plea of the management is that the letter dt. 31.07.1995 was sent to the workmen. The management has not proved on record any letter dt. 31.07.1995 which was addressed to the workmen. Another plea of the management is that they had sent letters dt. 05.08.1995 to the workers thereby calling them to join duties. The management has relied on copies of letters dt. 05.08.1995 which are Ex. MW1/1, Ex. MW1/7, Ex. MW1/13, Ex. MW1/19, Ex. MW1/27 and Ex. MW1/31. In the aforesaid letters dt. 05.08.1995 which are Ex. MW1/1, Ex. MW1/7, Ex. MW1/13, Ex. MW1/19, Ex. MW1/27 and Ex. MW1/31 the management has stated that the workmen are absenting from duties since 24.07.1995 and they have also referred to one letter dt. 26.07.1995 of management in this regard. However, no letter dt. 26.07.1995 has been proved by the management on record which has been referred to in the aforesaid letters dt. 05.08.1995 which are Ex. MW1/1, Ex. MW1/7, Ex. MW1/13, Ex. MW1/19, Ex. MW1/27 and Ex. MW1/31. The management has relied on copies of letters dt. 05.08.1995 but the management has failed to prove that they were dispatched to the workmen at their correct addresses. MW1 stated in the cross - examination that as far as he remembers the notices dt. 05.08.1995 might have been posted to the workers after 1 or 2 days from 05.08.1995 and after return of notices dt. 05.08.1995 undelivered, the Contd.....
management sent them again but he does not remember the date of sending the same again. Thereafter, MW1 further stated in the cross - examination that notices dt. 05.08.1995 were sent to workmen three times. Although, MW1 stated in the cross - examination that notices dt. 05.08.1995 were sent to workmen three times however, the management has not proved any record of dispatch of aforesaid notices dt. 05.08.1995 to workmen three times as pleaded by the management. MW1 admitted in the cross - examination that he had received notice dt. 05.08.1995 from the workmen. The copy of notice dt. 05.08.1995 is Ex. WW1/3. Thereafter MW1 further stated in the cross - examination that the management had sent reply to the notice dt. 05.08.1995 of the workers but he does not remember the date of sending the reply. The management has not proved any reply which was sent to notice dt. 05.08.1995 of the workmen. It is to be noted that the management is also relying on notices dt. 16.09.1995 which were allegedly sent to workers which are Ex. MW1/12, Ex. MW1/18, Ex. MW1/24, Ex. MW1/30 and Ex. MW1/34. But in the said notices the management has not mentioned that the management is in receipt of notices dt. 05.08.1995 (Ex. WW1/3) from the workmen, rather on the contrary the management has referred to letter dt. 05.08.1995 which was allegedly sent by the management. In the notice dt. 05.08.1995 Ex. WW1/3 the workmen have made allegation that the services of workman Sh. Satyabir Singh were terminated on 16.05.1995 and services of other workers were terminated on 24.07.1995. In the notice dt. 05.08.1995 Ex. WW1/3 the workmen had pleaded that they be reinstated in service. The management has Contd.....
not explained that if they were in receipt of notices dt. 05.08.1995 Ex. WW1/3 from the workmen (as admitted by MW1 in the cross - examination) then why they did not send any reply to the same thereby contradicting the contentions of workmen and directing them to join the duties of the management. In the letters dt. 16.09.1995 Ex. MW1/12, Ex. MW1/18, Ex. MW1/24, Ex. MW1/30 and Ex. MW1/34 which were allegedly sent by management to the workmen, the management has nowhere stated that the contents of notices dt. 05.08.1995 Ex. WW1/3 are false and the workman should report for duties immediately. Although the management has relied on letters dt. 16.09.1995 Ex. MW1/12, Ex. MW1/18, Ex. MW1/24, Ex. MW1/30 and Ex. MW1/34 but the management has failed to prove any postal receipt or any record from the postal authorities in order to prove that the said notices were dispatched to the workmen at their correct addresses. The management has failed to prove that they sent letters dt. 31.07.1995, 05.08.1995 and 16.09.1995 thereby directing the workmen to report for duties and despite receipt of the said letters the workman did not report for duties. The management had pleaded that the copies of letters were also sent to Labour Commissioner and the management has relied on copies of the said letters which are Ex. MW1/2, Ex. MW1/6, Ex. MW1/8, Ex. MW1/12. Ex. MW1/14, Ex. MW1/18, Ex. MW1/20, Ex. MW1/24, Ex. MW1/28 and Ex. MW1/32. It is to be noted that in aforesaid letters which were addressed to Labour Commissioner the management has not stated the name of workmen who are absenting from duties, but rather the management Contd.....
has stated that you have been absent from duties. The management has not summoned any witness from the Office of Labour Commissioner in order to prove that the aforesaid letters were sent by the management. Moreover, even if it is presumed that the said letters were sent to Labour Commissioner but these letters do not bear the name of any workman against whom there are allegations of absenting from duties and the contents of the letter reads that you (Labour Commissioner) has been absent from duties.
23. On the one hand the management has taken the plea that the workmen voluntarily absented from duties from 24.07.1995 but on the other hand in the cross - examination MW1 stated that as far as he remembers there was strike in the management from 24.07.1995. MW1 stated in the cross - examination that before resorting to strike the workmen had not given any notice to management. MW1 further stated in the cross - examination that the management had not lodged any complaint to police regarding strike. Thereafter MW1 further voluntarily stated in the cross - examination that the management had sent individual notices to the workers. But the management has not proved any such notices on record which were addressed to the workmen in which it was stated that they have resorted to illegal strike w.e.f. 24.07.1995. The management has also not proved any letters which were addressed to Labour Authorities thereby informing them that the workmen have been on illegal strike w.e.f. 24.07.1995. Aforesaid discussions clearly prove that it is the management which had denied duties to the workmen Contd.....
namely Sh. Surender Singh, Sh. Ram Gopal, Sh. Mangal Prasad, Sh. Shyam Lal and Sh. Peer Mohammad i.e WW2, WW3, WW4, WW5 and WW6 w.e.f. 24.07.1995 and the management has made lame excuse that they had absented from duties w.e.f. 24.07.1995. This issue stands answered accordingly.
ISSUES NO. 3 AND 4
24. Since both these issues involve common discussion of facts and law hence for the sake of brevity both these issues are being taken up together. In issues no. 1 and 2 above it has been held that the management has terminated the services of workman Sh. Satyabir Singh from 16.05.1995 and the management had terminated the services of workmen Sh. Surender Singh, Sh. Ram Gopal, Sh. Mangal Prasad, Sh. Shyam Lal and Sh. Peer Mohammad from 24.07.1995 and the management has made lame excuse that they have voluntarily absented from duties.
25. In D.K. Yadav v. JMA Industries Ltd. 1993-II-LLJ-696 it was held that "the law must therefore be now taken to be well settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Art. 14 and such law would be liable to be tested on the anvil of Art. 14 and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Art. 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural Contd.....
justice. The aim of both administrative inquiry as well as the quasi-judicial enquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or, to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial enquiry and not to administrative enquiry. It must logically apply to both."
26. In The Executive Engineer, Irrigation Division-I, Jaipur & Anr. v. Nar Narain 1994-LLR-538 it was held that "the employee is always in a disadvantageous position vis-a-vis the employer. He is not in a position to dictate the terms of employment qua the employer. It is the sweet-will of the employee to engage a workman on the terms and conditions which suit the employer. However, when a workman leaves service after working for a year or more, the natural conduct which is expected of the employer is to make an enquiry as to why the workman is not coming on duty."
27. In Kendriya Vidhyalya Sanghathan and Anr. v. S.C. Sharma 2005- LLR-275, it was held by Hon'ble Supreme Court that for terminating services without holding the enquiry a conclusion has to be recorded that it was not reasonably practicable to hold the enquiry proceedings and since such a finding had not been recorded by the authorities, the termination was illegal.
28. Section 2(oo) of the Industrial Disputes Act 1947 reads 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-
Contd.....
(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.
29. Section 25F of the Industrial Disputes Act 1947 provides that:
Conditions precedent to retrenchment of workmen. - 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 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 or such authority as may be specified by the appropriate Government by notification in the Official Gazette.
Contd.....
30. The management has not proved that they conducted any enquiry and the management has also not proved that any conclusion was recorded by the management that it was not reasonably practicable to hold the enquiry proceeding. It is held accordingly that the services of workmen Sh. Satyabir Singh, Sh. Surender Singh, Sh. Ram Gopal, Sh. Mangal Prasad, Sh. Shyam Lal and Sh. Peer Mohammad have been terminated illegally by the management.
31. The next question which is to be decided is regarding the relief which is to be given pursuant to illegal termination of services of workmen Sh. Satyabir Singh, Sh. Surender Singh, Sh. Ram Gopal, Sh. Mangal Prasad, Sh. Shyam Lal and Sh. Peer Mohammad.
32. In Kendriya Vidhyalaya Sanghathan and Anr. vs. S. C. Sharma 2005-LLR-275 it was held that "for entitlement of back wages on reinstatement of a employee, the employee has to show that he was not gainfully employed and the initial burden is on him. Thereafter, if the workman places materials in that regard, the employer can bring on record materials to rebut the claim".
33. In U.P. State Brassware Corpn. Ltd. & Anr. vs. Udai Narain Pandey 2006-LLR-214, it was held that "no precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed since it depends upon the facts and circumstances of each case, as such it will not be correct to contend that it is automatic hence should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of the Industrial Disputes Act."
Contd.....
34. In decision dt. 10.2.2006 in LPA No. 1647/05 titled as "M/s Lords Homeopathic Laboratories Pvt. Ltd. v. Ms. Lissy Unnikunju & ors. wherein our own Hon'ble High Court relied on decision in Employers, Management of Central P & D Inst. Ltd. v. Union of India AIR 2005 SC 633. where the Hon'ble Supreme Court observed that it is not always mandatory to order reinstatement after holding the termination illegal, and instead compensation can be granted.
35. In J. K. Synthetics Ltd. vs. K. P. Agrawal & Anr., 2007 LLR 358 it was held that:
17. There is also a misconception that wherever reinstatement is directed, 'continuity of service' and 'consequential benefits' should follow, as a matter of course. The disastrous effect of granting several promotions as a 'consequential benefit' to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualized while granting consequential benefits automatically. Whenever courts or Tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether 'continuity of service' and/or 'consequential benefits' should also be directed we may in this behalf refer to the decisions of this Court in A.P.S.R.T.C. v. S. Narasa Goud, 2003 (2) SCC 212: 2003 LLR 225 (SC);
Contd.....
A.P.S.R.T.C. v. Abdul Kareem, 2005 LLR 943: 2005 (6) SCC 36 and R.S.R.T.C. v. Shyam Bihari Lal Gupta, 2005 (7) SCC 406: 2005 LLR 1196 (SC).
18. Coming back to back-wages, even if the court finds it necessary to award back-wages, the question will be whether back-wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case............
36. The management has taken the plea that it has been closed. The management has examined Sh. Vinod Aggarwal as MW1 who adduced evidence by way of affidavits Ex. MW1/A to Ex. MW1/F and in the said affidavits the management has stated that the work of the factory came to grinding halt and the management was forced to close down its factory. However, the management has not pleaded as to when the management closed down its factory. The management has also not proved that they had written to ESI Authorities that the management has been closed and on that account return of ESI contribution was not filed by the management after its closure. The management has also not proved that they informed the Labour Commissioner, Sales Tax Authorities (if the management was having Sales Tax number) and the bank authorities where the management was having its accounts that the management has been closed. However, WW4, Mangal Prasad, WW5 Sh. Shyam Lal and WW6 Sh. Peer Mohammad stated in the cross - examination that the management is lying closed at present. In the cross - examination of MW1 also a suggestion was given by AR for workmen to the effect that after closure of management at WP 390, Wazir Pur Village, Contd.....
the management shifted to A-18 Wazir Pur Industrial Area and from there management shifted to A-99/6 Wazir Pur Industrial Area. By giving this suggestion to MW1 in the cross - examination the workmen have admitted that the management has been closed at its existing address i.e WP 390, Wazir Pur Village. Although, the workmen have taken the plea that after closure of the management at present address the management has shifted to other place, but no such evidence has been adduced by the workmen in order to prove that the management is functioning at any other address. Moreover, WW1, WW3, WW4 and WW5 admitted in the cross - examination that they are doing some agriculture work in order to make a living.
37. In North East Karnataka Road Transport Corporation v. M. Nagangouda, 2007 LLR 340, it was held that gainful employment of a workman during interregnum will also include either self-employment or earning some amount from agricultural pursuits to maintain himself.
38. The plea of AR for management is that the management has been closed. However, the management has not proved that any compensation was paid or offered to the workers after closure of the management. Moreover, the management has not filed any document on record to prove the date of its closure. In the circumstances, the workman/WW1 Sh. Satyabir Singh shall be entitled to compensation calculated in terms of Section 25F of the I.D. Act, 1947 till the date of termination of his services i.e 16.05.1995 and the other workmen i.e. WW2 Sh. Surender Singh, WW3 Sh. Ram Gopal, WW4 Sh. Mangal Prasad, WW5 Sh. Shyam Lal and WW6 Sh. Peer Mohammad shall be Contd.....
entitled to compensation calculated in terms of Section 25F of the I.D. Act, 1947 till the date of termination of their services i.e 24.07.1995. The workmen have not proved that after disengagement from the management what efforts were made by them in order to secure alternate employment and the workmen have not proved that if they made any effort to secure any employment and they approached which managements. The workmen have not proved as to what efforts were made by them to mitigate the days of their hardship. However, the management has also not proved that the workmen have been employed in any establishment after disengagement from the management. Moreover, the management has also not proved the date of its closure and admittedly the services of workmen were terminated long back i.e in the year 1995. In the circumstances, instead of passing any order of reinstatement and back wages the workmen Sh. Satyabir Singh, Sh. Surender Singh, Sh. Ram Gopal, Sh. Mangal Prasad, Sh. Shyam Lal and Sh. Peer Mohammad i.e WW1 to WW6 shall be entitled to compensation of a sum of Rs.50,000/- (Rupees Fifty Thousand Only) each. The workmen Sh. Satyabir Singh, Sh. Surender Singh, Sh. Ram Gopal, Sh. Mangal Prasad, Sh. Shyam Lal and Sh. Peer Mohammad i.e WW1 to WW6 shall also be entitled to a sum of Rs.5,000/- (Rupees Five Thousand Only) on account of cost of these proceedings under Section 11(7) of the I.D. Act, 1947. The workmen Sh. Sukh Pal, Sh. Madhu Kant Jha, Sh. Gorakh Nath & Sh. Vijay Bahadur have failed to prove that their services have been terminated illegally and/or unjustifiably by the management Contd.....
hence, they are not entitled to any relief. Reference stands answered accordingly. Copies of the award be sent to appropriate Government for publication as per law. File be consigned to Record Room. ANNOUNCED IN THE OPEN COURT.
TODAY i.e. ON 29.05.2008.
(HARISH DUDANI) PRESIDING OFFICER LABOUR COURT NO. XVII KARKARDOOMA COURTS, DELHI ID NO. 162/2007 29.05.2008 Pr. None.
The management has filed two applications under Section 340 Cr.P.C. thereby stating that the workmen Sh. Satyabir Singh/WW1 and Sh. Peer Mohammad/WW6 have stated in paras 10 and 9 of their affidavits respectively filed on record that they are out of job and could not find any job despite making efforts.
Copies of applications were given to AR for workmen who stated that he does not want to file reply to the same and will address arguments on the same. Arguments on the applications under Section 340 Cr.P.C. have been heard. The contention of AR for management is that the workmen Sh. Satyabir Singh and Sh. Peer Mohammad have filed affidavits in the form of evidence before this court wherein they have stated that they are unemployed. But the workman Sh. Satyabir Singh has been employed with M/s. Durga Steel, B - 22/2, Wazirpur Industrial Area, Delhi and the workman Sh. Peer Mohammad has been employed with M/s. Sanchit Metal Works, A - 131, Wazirpur Industrial Area, Delhi. It is to be noted that in the cross - examination of workmen Sh. Satyabir Singh/WW1 and Sh. Peer Mohammad/WW6 the management has not suggested ot them that they are employed with the aforesaid managements as stated in the applications under Section 340 Cr.P.C. so that they could have admitted or denied the same. It is to be noted Contd......
that the workmen Sh. Satyabir Singh/WW1 and Sh. Peer Mohammad/WW6 had filed their affidavits in the form of evidence in this court on 12.02.2001 thereby stating about their unemployment. The management has not stated in the applications under Section 340 Cr.P.C. that the workmen Sh. Satyabir Singh/WW1 and Sh. Peer Mohammad/WW6 were in the employment of aforesaid managements on 12.02.2001 also when the workmen Sh. Satyabir Singh/WW1 and Sh. Peer Mohammad/WW6 filed their affidavits before this court and on that account the contents of the affidavits of workmen Sh. Satyabir Singh/WW1 and Sh. Peer Mohammad/WW6 are false. Moreover, in its own evidence the management has neither pleaded nor proved that the workmen Sh. Satyabir Singh/WW1 and Sh. Peer Mohammad/WW6 have been employed with the managements as stated above and the contents of their affidavits are false. The management has not summoned any record from the managements as mentioned above in order to prove the employment of workmen Sh. Satyabir Singh/WW1 and Sh. Peer Mohammad/WW6 with the aforesaid managements.
The applications under Section 340 Cr.P.C. are devoid of merits and the same are dismissed.
Award dictated and announced separately. Copies of award be sent to appropriate Government for publication as per law. File be consigned to record room .
POLC/29.05.2008