Delhi District Court
Sh. Dilip Mishra vs Also At on 23 December, 2021
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
PRESIDING OFFICER, LABOUR COURT-IX
ROUSE AVENUE COURTS COMPLEX, NEW DELHI
LIR No. 6717/16 CNR No. DLCT13-007172-2015
Sh. Dilip Mishra
S/o Late Sh. Tilakdhari Mishra
R/o 581, Mahipal Pur
Mata Chowk, New Delhi-110037 ......Workman
Versus
M/s. First Flight Couriers Pvt. Ltd.
A-120, Street No. 3
Near Sheetal Guest House
Mahipal Pur, New Delhi-110037
Through its Managing Director
Also at:
408, Vishal Bhawan, Fourth Floor
95, Nehru Place, New Delhi-110019 ......Management
Date of Institution : 14.07.2015
Date of Award reserved on : 23.12.2021
Date of Award : 23.12.2021
REFERENCE U/SEC. 10(1) (C) AND 12(5) OF INDUSTRIAL
DISPUTE ACT, 1947 WITH GOVT. OF NCT OF DELHI,
LIR No. 6717/16
Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 1-29
LABOUR DEPARTMENT, NOTIFICATION NO.
F.1/31/616/ESTT./2008/7458 DATED 3rd MARCH 2009
AWAR D
BRIEF FACTS AND REASONS FOR DECISION :-
1. Vide this Award the present reference petition referred by the Deputy Labour Commissioner, District (SouthWest), Government of the National Capital Territory of Delhi shall be disposed which was referred by appropriate Government/Office of Labour Commissioner arising between the parties.
2. The present statement of claim is filed by the workman. It is submitted by the workman that he was appointed as "Helper" w.e.f. September 1998. Lastly he was working as "Operation Assistant" on last drawn wages for a sum of Rs.11,500/- per month. He has completed 16 years of service. The managerial staff Sh. Dharam Singh, Sh. P.K. Negi, Mr. Ghosh and Sh. Ashwini Sumant Rai were forcing the workman to resign from service which workman had refused. In the night of 10.09.2014 a loaded truck had to go to Pune and Hyderabad and one bag was incorrectly LIR No. 6717/16 Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 2-29 loaded in the truck which was to be handed over to M/s. Monopoly Carriers and Cargo Pvt. Ltd. The fault was of loading and unloading workers. The workman has discovered this mistake on which he called the Shift Incharge Sh. Dharam Singh. Sh. Dharam Singh had instructed the workman that this additional bag was to be handed over to them i.e. M/s. Monopoly Carriers and Cargo Pvt. Ltd. This bag was so handed over in the morning of 11.09.2014. When the workman reached the office at Mahipal Pur to hand over goods to M/s. Monopoly Carriers and Cargo Pvt. Ltd. then the managerial staff named above had taken signature of workman on blank papers who told the workman that there is no work for him and the service of workman was terminated on 11.09.2014. The earned wages for September 2014 and bonus for the year 2013- 2014 was not paid to the workman. The management did not allow the workman to join the service despite receipt of legal notice dated 10.11.2014. The conciliation proceedings had taken place in which statement of claim was filed by the workman on 10.02.2014 from which the present reference has arisen. Hence the termination of workman is illegal without payment of notice pay, earned wages, bonus, retrenchment compensation and without taking permission from appropriate Government. No seniority list was issued and even junior employees are working with the LIR No. 6717/16 Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 3-29 management. More than 100 employees are working. Hence the workman has submitted that he could not obtain alternative employment till date despite best efforts and remained unemployed due to illegal act of the management. Hence the workman has claimed full back wages, continuity of service, reinstatement of service with all consequential benefits.
3. Summons were served on the management on which the management had appeared and filed written statement. Issues were framed in the matter on 29.08.2017 and issue no. 2 was re-framed vide order dated 10.09.2018.
4. In the written statement it is submitted by the management that the workman has stolen a bag which was to be dispatched to Srinagar having high value COD consignment. The workman has illegally kept this high value COD consignment in the cabin of driver under the seat of conductor. While on the way to airport the workman had dropped this consignment at the tea stall of his friend after diverting normal/usual route to airport. Sh. Dharam Singh called the workman not to deliver the consignment at the airport but before that workman had already delivered the consignment and left for his home. The driver of the vehicle had LIR No. 6717/16 Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 4-29 confirmed that the excess bag was dropped by the workman at tea stall. The workman was confronted on 11.09.2014 when he came on duty. The workman had requested not to lodge FIR against him and that he will return the bag immediately. The workman has prayed for forgiveness and returned the bag to the shift Incharge Sh. Dharam Singh with assurance that he will not repeat this act in future. A show cause notice was issued to the workman on 11.09.2014. Instead of giving explanation the workman has absented from 12.09.2014. This resulted in abandonment of duty by the workman. The management could not bring him back despite best effort and correspondence dated 16.09.2014, 01.10.2014 and 16.10.2014. It is admitted by the management that no disciplinary action was taken by the management against the workman and name of the workman still exist on the rolls of management.
5. It is contended by the management that no other workman nor any union of workman is party to the dispute and therefore the present reference does not fall u/Sec. 2(A) of Industrial Disputes Act, 1947 and on this account claim is liable to be dismissed. It is laid down u/Sec. 2(A) of Industrial Disputes Act, 1947 that dismissal extra of an individual to be deemed to be an LIR No. 6717/16 Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 5-29 industrial dispute. Under Sub-Section (1) it is specifically laid down that notwithstanding that no other workman nor any union of workman is a party to the dispute it shall be deemed to be an industrial dispute where employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman. Under Sub-Section (2) the application can be directly made before the Labour Court or Tribunal after expiry 45 days from the date of application before the Conciliation Officer. In appropriate case even reference by the Government may not be required as laid down in case titled Hospital Employees Union vs. Union of India (2003) I LLJ SC 1127. Another citation titled Rajender Singh v. SBI dated 04.05.2017 in LPA no. 716/2015 from Hon'ble High Court of Delhi (DB) at para no. 15 to 23 and 26 to 29 are reproduced herein for ready reference. Hence above contention of the management in the present reference is rejected. The relevant paras are reproduced hereasunder:
15. It is noteworthy that Section 10A has been provided in Chapter III of the Industrial Disputes Act, 1947 under the heading "Reference of dispute to Boards, Courts or Tribunals".
Section 2A features in Chapter I.
16. We also find that Section 2 contains a non-obstante clause and stipulates that the provisions of Section 2A would take effect LIR No. 6717/16 Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 6-29 "notwithstanding anything contained in Section 10".
17. However, the spirit, intendment and purpose of the legislation cannot rest on consideration of the non-obstante clause alone. We find that Section 10(4A) also contains a non- obstante clause.
18. Section 10(4A) enables an individual workman seeking reference of disputes to "boards, court or tribunals" to approach the Labour Court or the Tribunal for adjudication of the dispute, within 12 months from the date of communication to him inter alia of an order of discharge, dismissal, retrenchment or termination. Thus, the legislative intent of Section 10(4A) appears to enable a workman to directly approach the Labour Court or Tribunal, without having recourse to the machinery prescribed in other provisions of the Industrial Disputes Act, 1947.
19. Section 10(4A) clearly does not deal with the substantive rights and liabilities of the parties but only enables invocation of a remedy upon the happening of the event of discharge, dismissal, retrenchment or termination of service. The opportunity to do so is also circumscribed by the period of limitation in as much as the Legislature has made available this option to the workman as exercisable only within 12 months from the date of communication of the order in question.
20. So far as Section 2A is concerned, sub-section (1) thereof contains a deeming provision so far as disputes connected with or arising out of discharge, dismissal, retrenchment or termination of service of a workman. It deems such dispute of even an individual workman to be treated as an industrial dispute, notwithstanding that no other workman nor any union of a workman is a party to the dispute.
21. Sub-section 2 of Section 2A which contains the non-obstante clause vis-a-vis Section 10 of the enactment, enables such LIR No. 6717/16 Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 7-29 workman (i.e. one who stands discharged/dismissed/retrenched/ or whose services have been terminated) to make an application directly to the Labour Court or Tribunal for adjudication of the dispute referred to therein. Sub-section 2 prescribes that such workman would first have to make an application to the Conciliation Officer of the appropriate government for conciliation of the dispute and enables the workman to, on expiry of forty five days from the date of making such application, to make an application directly to the Labour Court or Tribunal for adjudication of the dispute. As a result, the workman stands exempted from awaiting the outcome of the conciliation and a reference being made by the conciliation officer in accordance with the other provisions of Section 10 of the Industrial Disputes Act, 1947.
22. We find that the Parliament has provided no exception to the enabling provision contained in Section 10(4A) of the enactment.
23. It has been argued that the impugned judgment dated 27 th April, 2015 has treated Section 2A as having an overriding effect over Section 10(4A) of the Industrial Disputes Act observing that there was repugnancy between the two provisions. Reference stands made to Article 254 of the Constitution of India which is concerned with inconsistency between laws made by the Parliament and laws made by the legislators of States. XXXXXXXXXXX
26. We also note that, so far as Section 10(4A) of the Industrial Disputes Act, 1947 and Section 2A of the enactment are concerned, they provide two different remedies to a workman who stands discharged/dismissed/retrenched for redressal of his grievance. Section 10(4A) enables a workman to directly approach the Labour Court or the Industrial Tribunal within a period of one year from the communication of the order of discharge/dismissal/retrenchment without taking recourse to the procedure prescribed under Section 10. On the other hand, by LIR No. 6717/16 Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 8-29 virtue of Section 2A, a dispute/difference between a workman and his employer connected with or arising out of discharge dismissal retrenchment or termination of service is deemed to be an industrial dispute. Furthermore, the workman is enabled to approach the Conciliation Officer within a period of three months from the occurrence and after expiry of three months from the date of so approaching him, the workman can make a further application directly to the Labour Court or Tribunal for adjudication of the dispute. That is to say, under Section 2A, the second option available to the workman does not have to await the references by the Conciliation Officer.
27. In view of the above discussion, we are unable to agree with the observations in the impugned order that there was a repugnancy between the two statutory provisions.
28. Even if it could be held that there was a repugnancy between them, by virtue of the operation of the proviso to Article 239AA(3)(c), Section 10(4A) being a law made by the Legislative Assembly of the Government of NCT of Delhi which was reserved for consideration of the President and having received his assent on 13th July, 2003 and stands enacted thereafter, would prevail over the central legislation.
29. Thus, the claim made by the appellant, which came to be registered as ID No. 52/2011, could not have been rejected on the ground that the appellant has not complied with the provisions of sub-section 2 of Section 2A of the Industrial Disputes Act. On the other hand, the Industrial Tribunal was bound to have considered the same and decided it on its merits.
6. The workman did not issue any demand notice and did not reply to show cause notice dated 11.09.2014 that is why his service could not be terminated. The case of the workman is false.
LIR No. 6717/16Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 9-29 Accordingly management has prayed for dismissal of the case of the workman.
7. On the pleadings of the parties and averments made following issues are framed in the case on 29.08.2017 and issue no. 2 was re-framed on 10.09.2018. Hence issue no. 1 and 3 and reframed issue no. 2 in terms of order dated 10.09.2018 are reproduced hereasunder:
1. Whether the services of workman (Dilip Mishra) were terminated by management (First Flight Courier Pvt. Ltd.) illegally or unjustifiably? OPW
2. Whether the workman had started absenting himself voluntarily after receiving the show cause notice dated 11.09.2014 related to his alleged misconduct? OPM
3. Relief.
8. The workman being sole witness deposed as WW1/Sh. Dilip Mishra whose cross-examination was deferred on 15.10.2018 on request of AR of management that copy of evidence by way of affidavit was supplied to him on that date. Thereafter opportunity was granted to the management on 10.12.2018. Management again took adjournment on 15.10.2019. On non cross-examination of LIR No. 6717/16 Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 10-29 workman the right to cross-examine the workman was closed on behalf of management vide order dated 09.12.2019. The AR for management Sh. K. K. Pandey had withdrawn from his assignment/authorisation as the management was not contacting the AR. It is further submitted that management has shut down its business activities as none of its employees/officers were in contact with the management/AR. Hence the AR of the management had withdrawn his authorization on 09.12.2019. Thereafter vide order dated 12.02.2020 management evidence stands closed by the order of this Court/Tribunal. The workman WW1 has remained uncross- examined and his evidence was unrebutted and unimpeached. On non-appearance of management at the stage of final arguments the management was proceeded ex-parte vide order dated 06.04.2021.
9. Ex-parte final arguments are heard and record perused.
10. The issue-wise findings are as follows:-
11. ISSUE NO. 1 & 21. Whether the services of workman (Dilip Mishra) were terminated by management (First Flight Courier Pvt. Ltd.) illegally or unjustifiably? OPW LIR No. 6717/16 Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 11-29 AND
2. Whether the workman had started absenting himself voluntarily after receiving the show cause notice dated
11.09.2014 related to his alleged misconduct? OPM 11.1 The burden to prove present issue no. 1 is on the workman and of issue no. 2 is on the management. The date of employment of workman from September 1998 is unrebutted and the management has claimed that the workman has left the services or the workman on his own which is abandonment. The abandonment is claimed w.e.f 12.09.2014 as per para no. 4 of reply on merits in the written statement. Hence it is admitted case of the management that the workman has worked for more than 240 days in a year with the management. The workman has alleged termination of service which he proves by deposing as WW1 that he was not allowed to work under the management since from 11.09.2014 and despite visiting several time he was not allowed to work. He had also sent legal notice dated 10.11.2014 Ex.WW1/2 and postal receipts are Ex.WW1/3 to Ex.WW1/6. The claim before Conciliation Officer is Ex.WW1/7. Hence workman has proved his intention to work under management which is unrebutted and unimpeached. The onus is hence shifted on the management to LIR No. 6717/16 Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 12-29 prove abandonment of service and that there is not illegal retrenchment. The case of the management is that workman has abandoned the services w.e.f 12.09.2014. It is settled law that abandonment of service was to be proved by the management and the burden of proof of abandonment lies on the management. This was also law laid down in the case titled Eagle Hunter Solutions Limited. v. Sh. Prem Chand (Supra) 2018 LLR 1171 in W.P.(C) 9786/2018 & CM Nos. 38128-29/2018, dated 17.09.2018 at para no. 8, 9 and 10 wherein it is laid down that the onus to prove abandonment of job is on the employer. The employer must produce positive evidence of abandonment for example written communication with the workman to join his duties. The sole statement in evidence of abandonment which is controverted by the workman are not suffice to make out the case of abandonment. Animus to abandon must be shown to have exists before the date of case of abandonment is made out. The relevant para are reproduced hereasunder :
8. Operating, as I am, within the limited peripheries of certiorari jurisdiction, I do not find any manifest error in the impugned award of the Labour Court, as would warrant interference by me under Article 226 of the Constitution of India. At the cost of reiteration, it may be mentioned that the position, in law, is well settled that the onus to prove abandonment is on the employer. Mere filing of affidavit alleging that the workman had abandoned the services is entirely insufficient to LIR No. 6717/16 Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 13-29 discharge the said onus. That apart, the affidavit filed by MW-
1, too, only referred to the respondent having been offered employment by the petitioner, during the course of the conciliation proceedings. Even on that aspect, MW-1, the only witness of the respondent, was, at best, ambivalent, confessing that it was not possible for him to state whether any written communication had been served on the respondent or not. He neither produced any record, to support his plea of abandonment, as set up by the petitioner, nor sought time to produce any such record.
9. That apart, it was necessary for the petitioner to succeed in its case, to prove that the respondent had abandoned his services on 8th February, 2012. Even it was to be shown that thereafter, during conciliation proceedings, an offer of employment was extended to the respondent, that would not have sufficed to establish a case of abandonment, by the respondent, of his services, on 8th February, 2012.
10. In view thereof, I had pointedly queried, of learned counsel for the petitioner, as to whether there was any material to indicate that the respondent had abandoned his services on 8th February, 2012. His only reliance, in this connection, is to the deposition of the respondent, during cross-examination on 16th August, 2016, in which he states that he "left the management on 01.03.2012". This sole statement, in my view, cannot suffice to make out a case of "abandonment" by the respondent, of the services of the petitioner especially as, in his cross- examination before the Labour Court, the respondent expressed his willingness to re-join the services of the petitioner even at that stage.
Animus to abandon, it is well-settled, must necessarily be shown to exist, before a case of abandonment can be said to have been made out. No evidence, of any such animus on the part of the Respondent No.1, is forthcoming in the present case.
LIR No. 6717/16Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 14-29 11.2 The management has claimed in the written statement that it has issued show cause notice to the workman on 11.09.2014. This show cause notice is neither proved in cross-examination of WW1 nor it was produced by the management in his own evidence. Receipt of any notice is denied by the workman. Hence for the purpose of abandonment management has failed to discharge onus that any show cause notice was issued to the workman.
11.3 The management has claimed that workman has stolen one of the package of the goods which were transported in the night on 10.09.2014. The workman claimed that he was Helper w.e.f September 1998 and working as Operation Assistant on the date of his termination. This fact is not denied by the management nor rebutted in the written statement. According to the management one Cargo which was to be delivered to M/s Monopoly Carriers & Cargo Pvt. Ltd. was stolen by the workman unlawfully under the seat of the driver of the truck. This information was confirmed by the management from the driver of the truck. Management has claimed that workman has delivered this consignment to his friend who worked at tea stall and the truck was also diverted for this purpose. No witness is produced by the management to prove this fact. It is not clear that why the truck driver diverted the truck LIR No. 6717/16 Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 15-29 without any valid reason when the truck driver has no interest in alleged stealing of the bag. Further, the truck driver was also not brought in the witness box hence self serving statement of management is not believed and therefore they are discarded. Further, the workman has claimed that he is not involved in loading and unloading the cargo. This is claimed by the workman at para no. 3 of the statement of claim. The management has not specifically controverted this aspect deposed by WW1 at para no. 4 of his evidence by way of affidavit. Hence the workman has proved on record that he was not connected with loading and unloading the cargo. Therefore the loading of wrong packet/cargo in the truck must pertain to such loading and unloading cargo workers and not the workman in the present reference. Therefore the management cannot claim that it was the workman who has loaded this cargo on the truck. Further, the workman has deposed that he has handed over this cargo to M/s Monopoly Carriers & Cargo Pvt. Ltd. where it had to be finally delivered but the management had not produced any evidence to the contrary to show that this cargo was not so delivered nor management has brought on record the said tea stall vendor where the alleged cargo was delivered by the workman. Therefore the claim of misconduct of the workman by the management has no basis in evidence or in law and therefore stands LIR No. 6717/16 Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 16-29 rejected.
11.4 Since it is already held above that the burden of proof of abandonment was on the management which management has failed to discharge therefore it is held that the management has illegally terminated the service of the workman. No show cause notice was given to the workman nor any inquiry was conducted against the workman. No FIR was lodged regarding the said fact. There is gross violation of principal of natural justice. Notice pay is not paid to the workman. 15 days average pay for every completed year in absence of 6 months was not paid to the workman in terms of Sec. 25F(b) of Industrial Disputes Act, 1947. Notice to appropriate Government was also not issued. Hence the retrenchment of workman is held illegal and bad in law.
11.5 However, the workman has failed to show violation of Section 25G of Industrial Disputes Act, 1947 as the burden of proof is on the workman first to prove that there was such category of person as "Operation Assistant" by designation who were so categorized and their seniority list was prepared. He has also to prove that where he stood in such seniority list. In such circumstances of the case, it is held that workman has failed to LIR No. 6717/16 Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 17-29 discharge burden of proof in view of above provision of law and therefore it is held that workman is not entitled to benefit of Section 25G and Section 25H of Industrial Disputes Act, 1947 r/w Central Rules no. 77 and 78 of Industrial Disputes Act, 1957. The relevant citation titled MCD v. Rajpal 2011 SCC Online Delhi 2048 from Hon'ble High Court of Delhi at para no. 8 and 13 is reproduced hereasunder:-
8. It is correct that to apply Section 25G of the Act, it is not necessary that the workman should have worked for 240 days in a calendar year. At the same time, a person is not entitled to benefit under Section 25G of the Act if conditions required are not fulfilled/satisfied. While onus on many a condition is on the management, but onus regarding "particular category"
is on the workman. In Regional Manager, SBI vs. Rakesh Kumar Tewari, 2006 (1) SCC 530, it has been observed by the Supreme Court:
"14. Section 25G requires the employer to "ordinarily retrench the workman who was the last person to be employed in a particular category of workman unless for reasons to be recorded the employer retrenches any other workman". This "last come first go" rule predicates (1) that the workman retrenched belongs to a particular category (2) that there was no agreement to the contrary and (3) that the employer had not recorded any reasons for not following the principle. These are all questions of fact in respect of which evidence would have to be led, the onus to prove the first requirement being on the workman and the second and third requirements on the employer. Necessarily a fair opportunity of leading such evidence must be available to both parties. This would in turn entail laying of a foundation for the case in the pleadings. If the plea is not put forward such an opportunity is denied, quite apart from the principle that no LIR No. 6717/16 Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 18-29 amount of evidence can be looked into unless such a plea is raised. [See Siddik Mahomed Shah v. Mt. Saran; Bondar Singh and Ors. v. Nihal Singh and Ors.]."
13. We also find that the pleadings in the present case relating to Section 25G are vague even in the affidavit by way of evidence filed by the respondents, (copy of such affidavit filed by Rajpal, is available on record), at best is ambiguous. It is merely alleged that there has been violation of Section 25F, G and H of the Act read with Rules 76, 77 and 78 of the Industrial Disputes Central Rules, 1957. No other details, facts and particulars have been stated.
11.6 The workman has deposed that he remained unemployed during this period. Despite his best efforts to search for job. It was held in case titled Sachiv Krishi Upaj Mandi Samiti, Sanawad v. Mahendra Kumar S/o Mangilal Tanwarao, 2004 LLR 405 = 2003 SCC OnLine MP 720 : (2004) 101 FLR 176 (MP) : (2004) 4 LLJ (Supp) (NOC 307) 953 : 2004 LLR 405 that if the termination of an employee is based on no inquiry, no charge and not by way of punishment, then it becomes a case of illegal retrenchment. In such case, the workman will be entitled to reinstatement with full back wages. The relevant para is reproduced hereasunder:
4. Parties led evidence. It was, however, concluded on facts and evidence that respondent has worked continuously for more than 240 days in one calendar year, that no charge-
sheet or any inquiry was held prior to his termination, that LIR No. 6717/16 Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 19-29 no retrenchment compensation was paid prior to impugned termination, and that it was a case of dismissal without any basis or charge.
5. Learned Counsel for the petitioner was unable to point out to me any mistake of law or fact in the impugned award, in so far as the aforementioned findings of facts were concerned. These findings are the only findings which need to be rendered on facts and evidence. Indeed, in order to attract the protection of labour laws, these are the only issues which need to be examined on facts on both sides. As observed supra, if the termination of an employee is based on no inquiry, no charge and not by way of punishment, then it becomes a case of illegal retrenchment. If an employee has worked for more then 240 days in one calendar year then he is entitled to have the protection of Labour Laws provided the employer is an Industry subjected to Labour Laws.
6. Learned Counsel for the petitioner contended that no order for payment of back wages could be given. I do not agree to this submission, as it has no merit. Firstly, once the termination is held to be bad in law then directions to pay back wages is a natural consequence and has to follow. It is only when the employer (as in this case petitioner) is able to show and prove that terminated employee was working for gains even after termination, the order for payment of back wages will not be passed.
7.7. The burden to prove that employee was working for gains after termination lies on the employer. In the absence of any evidence not tendered, the direction to pay back wages has to follow. It is, however, necessary for the employee to state on oath that he remained unemployed after the termination of his service. In this case, the petitioner failed to lead any evidence on this issue against the respondent and on the other hand, the respondent did say that LIR No. 6717/16 Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 20-29 he remained unemployed. In view of this, the direction to pay back wages cannot be said to be illegal or unreasonable once it was held that termination is bad in law.
11.7 More than 5 years have passed from the date of alleged retrenchment of the workman. However Hon'ble Supreme Court of India has held in case titled as Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Ors. in Civil Appeal No. 6767 of 2013 at para no. 33 and 34 which is reproduced hereasunder:
33. The propositions which can be culled out from the aforementioned judgments are:
i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent LIR No. 6717/16 Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 21-29 evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
iv) The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.
v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept LIR No. 6717/16 Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 22-29 in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).
vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of of judgment is also against the very concept of reinstatement of an employee/workman.
34. Reverting to the case in hand, we find that the LIR No. 6717/16 Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 23-29 management's decision to terminate the appellant's service was preceded by her suspension albeit without any rhyme or reason and even though the Division Bench of the High Court declared that she will be deemed to have rejoined her duty on 14.3.2007 and entitled to consequential benefits, the management neither allowed her to join the duty nor paid wages. Rather, after making a show of holding inquiry, the management terminated her service vide order dated 15.6.2007. The Tribunal found that action of the management to be wholly arbitrary and vitiated due to violation of the rules of natural justice. The Tribunal further found that the allegations levelled against the appellant were frivolous. The Tribunal also took cognizance of the statement made on behalf of the appellant that she was not gainfully employed anywhere and the fact that the management had not controverted the same and ordered her reinstatement with full back wages.
11.8 That the litigant cannot be blamed or penalised for the lack of infrastructure which is principle cause of delay of cases. In most of these cases employer is in advantageous position. In case titled Hindustan Tin Works Pvt. Ltd. v. The Employees of Hindustan Tin Works Pvt. Ltd. (1979 (2) SCC 80) the Hon'ble Supreme Court has laid down as under:
"In the very nature of things there cannot to a straight jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that LIR No. 6717/16 Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 24-29 stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances..."
11.9 It is the case of the management that the workman has stolen his bag which was to be dispatched to Srinagar having high value COD consignment. The workman has illegally kept this high value COD consignment in the cabin of driver under the seat of conductor. While on the way to airport the workman had dropped this consignment at the tea stall of his friend after diverting normal usual route to airport. Sh. Dharam Singh called the workman not to deliver the consignment at the airport but before that workman had already delivered the consignment and left for his home. The driver of the vehicle had confirmed that the excess bag was dropped by the workman at tea stall. The workman was confronted on 11.09.2014 when he came on duty. The workman has requested not to lodge FIR against him and that he will return the bag immediately. The workman has also prayed for forgiveness and returned the bag to the shift incharge Sh. Dharam Singh with assurance that he will not repeat this in future. A show cause notice was issued to the workman on 11.09.2014. Instead of giving explanation the workman has absented from 12.09.2014 and this resulted in abandonment of duty by the workman. The LIR No. 6717/16 Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 25-29 management could not bring him back despite best effort and had made correspondence dated 16.09.2014, 01.10.2014 and 16.10.2014. It is admitted by the management that no disciplinary action was taken by the management against the workman. However WW1 was not cross-examined by the management on any of the above aspect.
11.10 The management has miserably failed to substantiate its allegations against the workman of theft of one of the additional bag on 10.09.2014. The management has failed to show that the workman has abandoned the service. The sole statement of the management to this effect is not an evidence and does not have any probatory value. Evidence of abandonment must be shown by the management. No inquiry was conducted against the workman and no charge was framed by the management. Admittedly workman has worked for 240 days in a year as employment of workman since September 1998 and he is working till the year 2014 is not a disputed fact between the parties. Hence it is held that the services of the workman were illegally terminated by the management without payment of statutory benefits. Hence the termination is bad in law. The termination is in violation of principle of natural justice in not conducting any inquiry. However it is admitted case by the LIR No. 6717/16 Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 26-29 workman that the office of management has since been closed in Delhi though without evidence it is stated that the management must be working at its office situated at Bombay. However workman is not pressing for reinstatement. The workman has asked for compensation for illegal termination/retrenchment of his service.
11.11 The management has failed to prove on record that workman was employed somewhere else. In the facts and circumstances of the case when the age of workman is nearly 55 years it is more difficult for him to find a job. In case of wrongful termination of service reinstatement with continuity of service and back wages is normal rule. The workman has worked for the management for about 16 years. In fact and circumstances of the case and keeping in view the citation titled Hindustan Tin Works Pvt. Ltd. (supra) the workman is held entitled to 100% full back wages till the date of publication of this Award. It is noted that during the course of final arguments the workman has submitted that he is no longer interested in employment with the management as the office of management at Delhi has since been closed who has shifted to Bombay. In view thereof the compensation in the present matter is accordingly modified for a sum of Rs.3 lakhs in lump sum LIR No. 6717/16 Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 27-29 amount to be paid to the workman from the date of publication of this Award for his illegal termination/retrenchment of his service u/Sec. 25F of Industrial Disputes Act, 1947. The due payment shall carry interest @ 9% from the date of publication of this Award till the recovery of due amount. Cost of litigation for a sum of Rs.40,000/-is also awarded in favour of workman and against the management u/Sec. 11(7) of Industrial Disputes Act 1947 keeping in view the conduct of management that it has contested the case but it has failed to lead evidence in the present matter. Accordingly issue no. 1 and 2 are decided in favour of workman and against the management.
RELIEF
12. In view of findings under issues above termination of the workman in the present case is held illegal, in violation of principles of Sec. 25F of Industrial Disputes Act, 1947. Accordingly workman is held entitled and has been granted the following reliefs:
(i) Compensation for a sum of Rs.3 lakhs in lump sum amount to be paid to the workman from the date of publication of this Award LIR No. 6717/16 Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 28-29 u/Sec. 25F of Industrial Dispute Act, 1947.
(ii) All the due amount be paid within one month with interest @ 9% per annum from the date of publication of this Award till its realization.
(iii) The workman is also awarded the cost of litigation for a total sum of Rs.40,000/- u/Sec. 11(7) of Industrial Disputes Act, 1947.
Reference stands answered in the aforesaid terms.
A copy of Award be sent to the competent
authority/appropriate Government i.e. Deputy Labour
Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication which thereafter become enforceable u/Sec. 17A of Industrial Dispute Act, 1947. Award is passed accordingly.
File be consigned to record room after due compliance.
Announced in the open Court
on 23.12.2021 JOGINDER
Digitally signed by JOGINDER
PRAKASH NAHAR
PRAKASH NAHAR Date: 2021.12.23 13:11:12
+0530
(JOGINDER PRAKASH NAHAR)
PRESIDING OFFICER LABOUR COURT-IX
ROUSE AVENUE COURT COMPLEX /NEW DELHI
LIR No. 6717/16
Dilip Mishra v. First Flight Couriers Pvt. Ltd. Page 29-29