Delhi District Court
Sh. Mahavir Singh vs Ms Century Overseas on 13 October, 2023
IN THE COURT OF CHANDER MOHAN, PRESIDING OFFICER
LABOUR COURT-06, ROUSE AVENUE DISTRICT COURT, D.D.U.
MARG, NEW DELHI.
LC No. 705/2016
Date of Institution 12.01.2015
Date of Award 13.10.2023
BETWEEN THE WORKMAN
Sh. Mahavir Singh S/o Sh. Devi Ram, R/o A-40, Gali No. 4, Vikas Enclave,
Itwar Bazar, Vikar Nagar, Uttam Nagar, New Delhi-110059.
C/o Delhi Pradesh Kamgar Ekta Sangh (Regd.) Plot No. 1, Gali No. 2, Dabri
Village, New Delhi-110045.
AND
THE MANAGEMENT OF
M/s Century Overseas, 37 DLF Industrial Area, Kirti Nagar, New Delhi-
110015.
AWAR D
1.Vide this award I shall dispose of the present claim as filed by the claimant directly before the labour court under Section 2A (1) and (2) of the Industrial Disputes Act, 1947 against the management.
2. Brief facts stated by the claimant in his statement of claim are that he had been working with the management continuously since September 2011 at the post of cutting master and his last drawn salary was Rs. 8050/- per month; that he used to work sincerely and honestly and never gave any chance of complaint to the management; that the management was taking work from him for 12 hours but was not paying the overtime wages; that the management had also not provided him various legal facilities as per labour law i.e. appointment letter, attendance card, pay slip, Government holidays, salary as per minimum wages, bonus etc. for which he had raised demand several times and due to said LC No. 705/2016 Page 1 of 12 reason management got annoyed with him and terminated his services on 10.10.2012 without any prior notice, information and payment of his dues; that management also did not pay him his salary for the period 01.09.2013 to 09.10.2013; that on 10.10.2013 he filed a complaint before conciliation officer but the management refused to take him back on duty; that on 31.10.2013 he sent demand letter to management but management did not reply the same; that workman then filed his claim before the conciliation officer but the management did not cooperate there and later on stopped appearing there; that management terminated his services illegally and unjustifiably, without any reason, chargehseet, inquiry, prior notice and without paying retrenchment compensation and his earned/due salary, in violation of provisions of Section 25 F, G and H of the Industrial Disputes Act 1947 and Central Rule 77 & 78; that he is unemployed since the date of his termination; that despite best efforts he did not get job elsewhere and it has been prayed that an award be passed in his favour and against management thereby directing the management to reinstate him with continuity of service, full back wages and all consequential benefits.
3. Notice of the claim was issued to the management. Management while taking the preliminary objection in WS stated that workman was appointed on fixed tenure initially w.e.f. 01.02.2013 to 31.07.2013 which was extended from 01.08.2013 to 31.01.2014 and during fixed term tenure he started absenting from duty and did not turn up to join duty till the expiry of fixed term tenure on the evening of 31.01.2014, when his services came to an end automatically as per terms of appointment; that after expiry of the fixed term, the claimant has no lien to claim reinstatement/re-employment; that the termination was affected on expiry of fixed term contract and the same does not constitute a retrenchment as stipulated u/s 2 (oo) of the Industrial Disputes Act, 1947; that since the workman has not worked continuously for 240 days hence, no relief can be granted in LC No. 705/2016 Page 2 of 12 favour of the workman.
On merits it has been stated that workman was appointed for a fixed term tenure as a helper and his monthly remuneration was Rs. 8920/-; that the workman abruptly started absenting from his duties from 10.10.2013; that the workman used for work for 8 hours and no overtime accrued to be paid to him. Rest of the contents of the statement of claim were denied as wrong and incorrect and it has been prayed that claim of the workman be dismissed.
4. The workman filed rejoinder in which he denied all the contents of the written statement and reiterated and reaffirmed the facts of the statement of claim as correct and prayed that an award may kindly be passed in his favour in terms of the prayer made by him in the statement of claim.
5. After completion of pleadings, the following issues were framed vide order dated 29.03.2016:
1. Whether the claimant/workman has not completed 240 days continuous service with the management in the preceding year prior to 10.10.2013, if so, its effect? OPM
2. Whether the workman was appointed for fixed tenure initially w.e.f.
01.02.2013 to 31.07.2013 and which was later on extended from 01.08.2013 to 31.01.2014, if so, its effect? OPM
3. Whether the workman himself started abseting from duty w.e.f.
10.10.2013 and did not turn up to join the duty till the expiry of the fixed tenure on 31.01.2014 and thereby the workman himself abandoned the job? OPM
4. Whether the services of the workman were terminated by the management illegaly and unjustifiably as claimed by the workman? OPW
5. Whether the workman is entitled to the relief claimed in the statement of claim? OPW
6. Relief.
Thereafter, matter was listed for WE.
LC No. 705/2016 Page 3 of 126. In workman evidence, the claimant examined himself as WW1. He tendered his evidence by way of affidavit as Ex WW1/A, which reiterates the averments mentioned in the statement of claim. Further the workman tendered in evidence documents i.e. copy of complaint dated 10.10.2013 filed before ALC Ex WW1/1, copy of demand notice dated 31.10.2013 Ex WW1/2, postal receipt dated 31.10.2013 Ex WW1/3, copy of claim dated 31.10.2013 filed before conciliation officer Ex WW1/4, copy of order dated 27.05.2015 passed by the Authority under the Minimum Wages Act, 1948 Ex WW1/5, copy of application dated 08.12.2015 under clause (b) of Sub Sec. (5) of Sec. 20 of Minimum Wages Act Ex WW1/6, copy of identity card issued to the workman by the management Ex WW1/7, copy of production slip dated 29.06.2012 Ex WW1/8, copy of production slip dated 07.09.2013 Ex WW1/9, copy of gate pass dated 25.07.2011 issued by the management to workman Ex WW1/10, copy of gate pass dated 19.09.2011 issued by the management to workman Ex WW1/11, copy of gate pass dated 29.11.2011 issued by the management to workman Ex WW1/12, copy of gate pass dated 25.07.2013 issued by the management to workman Ex WW1/13 and copy of returnable challan dated 24.04.2013 Ex WW1/14.
Workman was duly cross-examined by Ld. AR for the management. Workman closed his evidence on 27.05.2023.
7. Thereafter, opportunity was given to the management to lead evidence. In ME, management examined Sh. Ramesh Pandey, who was working as Manager (HR) with the management. He tendered his evidence by way of affidavit Ex MW1/A and and relied upon the document i.e. appointment letter of the workman dated 01.02.2013 already marked as Mark WW1/X2, Certified standing order of the firm already Marked as Mark A (in cross-examination of workman), details of legal benefit, bearing signature of workman at point A and LC No. 705/2016 Page 4 of 12 B already marked as Mark WW1/X3 and also application dated 01.02.2013 Mark WW1/X1.
He was duly cross-examined by Ld. AR for the workman. Management closed its evidence on 04.08.2023 and matter was listed for final arguments.
8. I have heard the arguments on behalf of the parties and perused the record. My issue wise findings are as under.
9. Issue No. 1. Whether the claimant/workman has not completed 240 days continuous service with the management in the preceding year prior to 10.10.2013, if so, its effect? OPM The workman has contended in his claim that he joined the management in September 2011 and management terminated his services on 10.10.2013. On the other hand, it is contention of the management that workman was appointed on a fixed tenure initially from 01.02.2013 to 31.07.2013 which was extended from 01.08.2013 to 31.01.2014 and during this period he started absenting from duty and did not turn up to join duty till the expiry of its tenure i.e. 31.01.2014 when his services came to an end automatically on expiry of said period. A specific plea has been taken by the management in para 3 of its WS that the workman has not worked continuously 240 days in preceding year prior to 10.10.2013, when he started absenting from duty. The workman has specifically denied for not working for a period of 240 days in the year preceding to his termination in his rejoinder dated 29.03.2016. It appears that the workman to prove, interalia, the fact that he had worked continuously for a period of 240 days preceding to his termination moved an application dated 28.10.2016 seeking the records from the management including the attendance register, wages register, and record pertaining to ESI and PF. Vide order dated 03.08.2017, the said application was disposed off by my Ld. Predecessor after LC No. 705/2016 Page 5 of 12 observing that the management has placed on record the copies of application of service, appointment letter, copy of extension letter, copy of form 11 under EPF, copy of ESI card, copy of salary register, copy of attendance register. During the course of arguments Ld. AR for the management failed to point out from record absence of the workman during the year preceding to the termination of the workman to show that workman had not completed the said service of 240 days. It is a matter of common knowledge that all the records pertaining to attendance and leaves remain in the possession of the management and management was required to show from record (after the same was summoned by the workman) that workman fell short of 240 days of service in the year preceding to his termination. However, except a bald assertion no further effort was made by the management to prove this fact. It is pertinent to mention here that the onus to prove the same was put upon the management while the issues were framed. Accordingly, the present issue is decided in favour of the workman and against the management and it is held that the workman had completed 240 days of service in the year prior to his termination.
10. Issue No. 2. Whether the workman was appointed for fixed tenure initially w.e.f. 01.02.2013 to 31.07.2013 and which was later on extended from 01.08.2013 to 31.01.2014, if so, its effect? OPM It is contention of the management that the workman was appointed for fixed tenure initially w.e.f. 01.02.2013 to 31.07.2013 which was later on extended from 01.08.2013 to 31.01.2014. On the other hand, the workman has contended that he was appointed in September 2011 and terminated on 10.10.2013. The management intends to take benefit of Section 2(oo)(bb) of the Industrial Disputes Act and as per Ld. AR for the management the termination of the service of the workman as a result of non-renewal of contract of employment will not amount to retrenchment. The above exception i.e. Section LC No. 705/2016 Page 6 of 12 2(oo)(bb) of Industrial Disputes Act has come under judicial scrutiny several times particularly in the cases where the same is restored to arbitrary and only periodic extensions are given to the workman to deny them the protection of Section 20 F of Industrial Disputes Act. The Hon'ble Supreme Court in case titled as Junagadh Municipal Corporation Vs. Dipakbhai Pratapbhai Karamata, CLPA 335 2020 has categorically observed that such excepted categories required a rigorous test. The following observations are relevant:
"49. The above referred to decisions on the interpretation of Section 2 (oo)(bb) explain the legal position to the effect that a claim of an employer on a term based employee providing for automatic termination whether within the terms fixed or on expiry of the said term, cannot be taken for granted to sustain the order 2 of termination. On a plain reading of Section 2 (oo)(bb), it is quite clear that such term based employment would fall outside the scope of 'retrenchment' so long as the requirement of such fixed period of employment was bona fide required by the employer. It was therefore, repeatedly pointed out that such excepted categories required a rigorous test rather than accepting the plea of employer on its face value or otherwise it would cause serious prejudice to an employee, who can be taken for a ride by unscrupulous employers by contending that the term of employment was for specific period though as a matter of fact such period of employment lasted quite for a long spell.
In other words even though the requirement of employment was perennial by adopting the methodology of employing a person for a specific period as many a times, an unscrupulous employer can always resort to abusing the provision contained in Section 2 (oo)(bb) to thwart the other statutory protection available to an employee under Section 2 (oo), namely, in the case of a 'retrenchment' vis-a-vis the consequential" benefits contained under Section 25-F of the Industrial Disputes Act. Therefore, when such extraordinary circumstances are brought out in the matter of employment and termination is resorted to by taking umbrage under Section 2 (oo)(bb) of the Industrial Disputes Act, in the interest of justice, we are of the view that a close scrutiny of the real position will have to be necessarily made to rule out the possibility of any injustice being caused to an employee. It cannot be lost sight of that Section 2 (oo) (bb) is specifically meant to cover only such employment which would be needed for an employer for a specific period alone and beyond which the requirement will not be there and even on such occasions, the employer should not be put into an unnecessary predicament of facing the other consequences that would normally occur while resorting to retrenchment. The benefit of the said exception will have to be strictly restricted to such specific situations alone and the same LC No. 705/2016 Page 7 of 12 cannot be allowed to be misused or abused by the employers even in regard to cases where the nature and requirement of employment is perennial.."
Hence, it can be seen that Section 2 (oo)(bb) is meant to cover only employment which would be needed for a employer for a specific period or is seasonal in nature. No evidence is on record to show that the nature of work on which the workman was employed was not perennial in nature. The Hon'ble Supreme Court in case titled as K.V.Anil Mithra & Anr. Vs. Sree Sankaracharya University of Sanskrit & Anr. CA No. 9068/2014 has held that the benefit of Section 25 F of Industrial Disputes Act is even available to casual labouror provided the other conditions are fulfilled. The following observations are relevant:
"23. The scheme of the Act 1947 contemplates that the workman employed even as a daily wager or in any capacity, if has worked for more than 240 days in the preceding 12 months from the alleged date of termination and if the employer wants to terminate the services of such a workman, his services could be terminated after due compliance of the twin clauses (a) and (b) of Section 25 F of the Act 1947.."
Accordingly, it is held that though the workman may be contractual employees engaged for a limited period and his services extended for a limited period but management cannot take aid of Section 2 (oo) (bb) to deny the workman benefit of 25 F of Industrial Disputes Act.
11. Issue No. 3. Whether the workman himself started abseting from duty w.e.f. 10.10.2013 and did not turn up to join the duty till the expiry of the fixed tenure on 31.01.2014 and thereby the workman himself abandoned the job? OPM The onus to prove absentisem on the part of the workman was on the management. This court has failed to find any cogent evidence lead by the management to prove that workman remained absent. Infact the management LC No. 705/2016 Page 8 of 12 has even failed to specify the days or period of absence of workman. Ld. AR for the workman has tried to place reliance on copies of the register of attendance, wages, fine, damage etc. which were filed by the management in response to the order of my Ld. Predecessor dated 03.08.2017. As per Ld. AR for the management, the workman has been marked absent in the said register and therefore, his absence stands proved. This court is not in agreement with this contention of Ld. AR for the management. Merely because the management marks absent, a workman in its attendance register etc. is not in itself is sufficient to hold workman guilty of unauthorized absent. Such register remain in possession of the management and therefore, they fall in the category of self serving documents prepared by the management for its own convenience. Therefore, it would not be safe to place reliance on the same without any corroboration. Even otherwise if it is presumed that workman remained absent, no warning letter etc. has been placed on record by the management informing the workman to join his duty or explain his absence and without the same an adverse inference ought to be drawn by the court. In view of the above reasons it is held that management has failed to prove that the workman himself started abseting from duty w.e.f. 10.10.2013 and did not turn up to join the duty till the expiry of the fixed tenure on 31.01.2014 or that the workman himself abandoned the job. Accordingly, this issue is decided in favour of the workman and against the management.
12. Issue No. 4 Whether the services of the workman were terminated by the management illegaly and unjustifiably as claimed by the workman? OPW In view of the findings on issue No. 1, 2 and 3, it is held that the termination of services of the workman is in violation of section 25 F of Industrial Disputes Act and therefore the termination is held bad in law. Accordingly, this issue is decided in favour of the workman and against the LC No. 705/2016 Page 9 of 12 management.
13. As far as reinstatement is concerned, it does not seem to be an ideal option. On this point, this court finds support from the judgment of the Hon'ble Supreme Court of India in case titled as Employers, Management of Central P & D Inst. Ltd Vs. Union of India & Another, AIR 2005 Supreme Court 633 in which it was held that "it is not always mandatory to order reinstatement after holding the termination illegal and instead compensation can be granted by the court."
Recently the Hon'ble Delhi High Court in the case titled as Vikas Kumar Vs. South Delhi Municipal Corporation, WP (C) 8692/2018 observed as follows (paragraph 23 and 24): (Neutral citation 2023/DHC/000420).
"23. The aim and object of the Industrial Disputes Act is to impart social justice to the workman but the same does not imply or guarantee automatic relief of reinstatement especially in light of the recent shift in law of granting compensation in lieu of reinstatement, especially in cases where granting reinstatement would not serve the purpose and be improper.
24. Section 11 A, ID Act, gives the Labour Courts/ Tribunal plenary jurisdiction to grant appropriate relief in case of discharge or dismissal of workmen. Labour Courts/Tribunals are empowered to use their discretion to grant relief of either reinstatement with back wages or compensation as the case may be."
14. This court is of the opinion that since both the parties have lost faith in each other, reinstatement of the claimant in service would not be in the interest of both the parties and compensation in lieu of reinstatement would be a better option. However, the workman has not proved that he was not gainfully employed. Simple averment cannot be taken as proof and he should have proved that he tried many places by applying but did not get the job. Some overt act was required to be brought on record.
The Hon'ble Supreme court in case titled as Kendriya Vidyalaya Sangathan And Another Vs. S C Sharma, (2005) 2 Supreme Court cases 363, LC No. 705/2016 Page 10 of 12 has observed as follow:
"When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim."
15. As already discussed, there is nothing on record to suggest that workman remained unemployed for such a long period. It cannot be presumed that workman remained idle for such a long period. Now as far as, the quantum of compensation is concerned paragraph 41 of case titled Vikas Kumar Vs. South Delhi Municipal Corporation, in WP (C) 8692/2018 decided by Hon'ble High Court of Delhi, is relevant :
"41.This court in Jagbir Singh Vs. Haryana State Agriculture Marketing Board, (2009) 15 SCC 327 held that while awarding compensation in lieu of reinstatement, a host of factors should be kept in mind and inter alia held as under:
"16 While awarding compensation, the host of factors, inter-alia, manner and method of appointment, nature of employment and length of service are relevant. Of course, each case will depend upon its own facts and circumstances.....".
16. Though management has stated that the workman joined in the year 2013 only but during his cross-examination MW1 admitted document Ex WW1/7 to be issued by the management to the workman and said document bears the date 25.07.2011 and if the service of the workman is calculated from said date, it comes to around two years.
Keeping in view the fact that workman served the management for a period of two years, his last drawn salary declared by him to be Rs. 8050/-, nature of his job and other facts and circumstances of the present case this court deems it appropriate to grant a lump sum compensation to the tune of 70,000/- (seventy thousand) to claimant in lieu of his wrongful termination, reinstatement and all other entire benefits. The amount of compensation shall be paid to the LC No. 705/2016 Page 11 of 12 workman by the management within one month from the date when this award becomes enforceable failing which the amount shall carry on interest @ 9% p.a. from the date i.e. becomes due till the time it is realized.
17. Issue No. 5 Whether the workman is entitled to the relief claimed in the statement of claim? OPW and Issue No. 6 Relief.
In view of the findings of the court on issue No. 1, 2, 3 and 4, it is held that the workman is entitled to relief against the management as stated above and award to that effect is hereby passed. The claim of the workman under Section 2A (1) and (2) of the Industrial Disputes Act, 1947 is disposed off accordingly.
A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt/Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules. Announced in open court on 13.10.2023 (CHANDER MOHAN) PRESIDING OFFICER: LABOUR COURT-06 ROUSE AVENUE DISTRICT COURT NEW DELHI.
LC No. 705/2016 Page 12 of 12