Delhi District Court
Between The vs The on 28 November, 2018
IN THE COURT OF SH. ATUL KUMAR GARG,
PRESIDING OFFICER, LABOUR COURT NO. XVI, SOUTH
WEST DISTRICT, DWARKA COURTS, NEW DELHI
LIR No. 1091/17
Date of institution 21.04.2017
Date of decision 28.11.2018
BETWEEN THE WORKMAN
Sh. Manish Dabas,
S/o Sh. Ramesh Chander,
aged about 30 years,
R/o H.No. 313, Veeran Pana,
V&PO Kanjhawala, Delhi-110081.
VERSUS
THE MANAGEMENT OF
1. M/s Security & Intelligence Services Ltd.,
B-88, Defence Colony, Ring Road,
New Delhi-110024.
2. M/s Delhi Integrated Multi Modal,
Transit System (DIMTS) Ltd.,
1st Floor, Maharana Pratap,
ISBT Building, Kashmere Gate,
Dehi-110006.
AWARD
1. By this award I shall dispose off the reference as sent by Sh.
Anil Bhatnagar, Deputy Labour Commissioner, Labour
LIR No. 1091/17.
Sh. Manish Dabas Vs M/s SIS Ltd and M/s DIMTS Ltd. 28.11.2018 Page No. 1 of 11
Department, District North, Government of the National Capital
Territory of Delhi, Delhi, arising out between the parties named
above to this court vide notification No. F.24/
(06)/239/Co.I/ND/16/Lab./01 dated 05.04.2017 with the following
terms of reference:-
"Whether the services of Sh. Manish Dabas S/o Sh.
Ramesh Chander have been terminated illegally and/
or unjustifiably by the management; if so, to what
relief is he entitled and what directions are necessary
in this respect?"
2. Notice of the reference was issued to the workman. Workman
had appeared and filed the statement of claim. In his statement of
claim, claimant has stated that he was appointed by the management
no. 1 on 01.10.2013 as Conductor. He has been working as
Conductor bearing Conductor ID No. 8047 in the Kanjhawala Depot
Delhi with his hard work and honesty. He further submitted that the
management No. 2 is the Delhi Integrated Multi Modal Transit
System (DIMTS) Ltd. has been appointed by Government of
National Capital Territory of Delhi to management the operation of
stage carriages, operated by private corporate entities on gross cost
LIR No. 1091/17.
Sh. Manish Dabas Vs M/s SIS Ltd and M/s DIMTS Ltd. 28.11.2018 Page No. 2 of 11
model, under a concession agreement signed between Department of
Transport, GNCTD and the private companies in Delhi.
Management no. 1 and Management no. 2 have an arrangement and
contract between them requires deployment of conductors. He
continues to work till the month of May, 2016 till his services have
been terminated by the management without issuing any memo or
any charge-sheet or without holding any enquiry against him. He
further submitted that the aforesaid managements were not providing
him the legal facilities such as minimum wages, attendance card,
ESIC Card, bonus etc. he had demanded the above said legal
facilities orally from the managements. He further submitted that on
12.03.2016, the workman being the representative of the other
workmen, filed a written representation/ legal notice on behalf of all
the conductors serving in Delhi Cluster Service to the management
no. 1 regarding the illegalities committed by the DIMTS against
their Employees and consequent violation of service rules, which
was signed by the workman and other workmen. He further
submitted that the managements used to remain annoyed with him.
He further stated that the management terminated his service on
LIR No. 1091/17.
Sh. Manish Dabas Vs M/s SIS Ltd and M/s DIMTS Ltd. 28.11.2018 Page No. 3 of 11
05/06.05.2016 illegally and unjustifiably without issuing him any
memo or charge sheet or without holding enquiry against him.
Management had also withheld his payment for the month of May,
2016. He further submitted that the last drawn full salary of the
workman has been Rs. 10582/- per month when he was dismissed
from service. He is unemployed since the date of his termination.
Hence, he has made prayer that he be given reinstatement with full
back wages.
2. Management no. 1 had appeared, however he has not filed any
written statement despite have been provided the opportunity and
hence, he was proceeded ex-parte.
3. Management no. 2 had appeared and filed the written
statement whereby he has taken the preliminary objections stating
that the workman has filed the present claim against the management
without any basis or justification. He submitted that the present
claim is malafide and afterthought and an abuse of the process of
law. He further submitted that the present claim has been filed with
LIR No. 1091/17.
Sh. Manish Dabas Vs M/s SIS Ltd and M/s DIMTS Ltd. 28.11.2018 Page No. 4 of 11
the sole intention to harass and cause undue pressure on the
answering management without there being any concern or dispute
the answering management with the workman. He further submitted
that claimant is not a workman within the meaning of Section 2(s) of
the Industrial Disputes Act, 1947 as there is no employer and
employee relationship between the workman and the answering
management. He further submitted that even otherwise it is stated
that the claim of the claimant is false and not maintainable. He stated
that the present claim is barred by the settled principles of law and is
vexatious, without a clear right to sue and there being no relationship
of employee and employer between the workman and the answering
management. He further submitted that the management no. 2 in its
capacity as Pricipal Employer of an Establishment is registered
within the provisions of Section 7 of the Contract Labour
(Regulation and Abolition) Act, 1970 before the Registering Officer,
Ashok Vihar, North and North West district, Nimri Colon, Delhi vide
No. CLA/PE/01/ND/08. He submitted that the claim of the claimant
is liable to be dismissed.
LIR No. 1091/17.
Sh. Manish Dabas Vs M/s SIS Ltd and M/s DIMTS Ltd. 28.11.2018 Page No. 5 of 11
4. Rejoinder has not been filed by the workman.
5. From the pleadings of the parties, vide order dated 09.01.2018,
following issues have been framed:-
1. Whether the service of the workman is terminated legally on
05/06.05.2016 by the management? OPP.
2. Relief, if any
No other issue arose or pressed and the matter was listed for
workman evidence. Thereafter the management no. 2 had not come
forward.
6. Workman had filed the workman evidence whereby he has
reiterated the facts as mentioned by him in his statement of claim.
He has relied upon the documents Ex. WW 1/A to Ex. WW 1/H. Ex.
WW 1/A is the reference dated 05.04.2017, Ex. WW 1/B is the
appointment letter of workman issued by the management no. 1
dated 01.10.2013, Ex. WW 1/C is the written representation dated
12.03.2016, Ex. WW 1/D is the computerised salary slip for the
month of May, 2016, Ex. WW 1/E is the computerised salary slip for
LIR No. 1091/17.
Sh. Manish Dabas Vs M/s SIS Ltd and M/s DIMTS Ltd. 28.11.2018 Page No. 6 of 11
the month of April, 2016, Ex. WW 1/F is the demand notice dated
17.10.2016 along with its postal receipt, Ex. WW 1/G is the demand
notice dated 17.10.2016 along with its postal receipt and Ex. WW
1/H is the statement of claim dated 09.11.2016 filed by the workman
before the labour office.
7. This witness has not been cross examined by the management
as both the management has not turned up to contest the present
case.
8. If we look into the evidence of the workman, then it appears
that the evidence of the workman is coherent, firms and reliable to
the effect that he was the employee with the management no. 1 for
the last five years as Conductor. His testimony remained
uncontroverted, unchallenged and unrebutted. From the document
Ex. WW 1/B which is the letter of contractual appointment
addressed to the workman and signed by the management no. 1,
workman has proved that he was employed with the management no.
1. Workman has further proved its case from the document Ex. WW
LIR No. 1091/17.
Sh. Manish Dabas Vs M/s SIS Ltd and M/s DIMTS Ltd. 28.11.2018 Page No. 7 of 11
1/D, Ex. WW 1/E that he has been employed with the management
no. 1. From his unchallenged testimony, workman further proved
that his services had been terminated illegally and unjustifiably by
the management no. 1 on 05/06.05.2016. Hence, this issues goes in
favour of the workman and against the management. There is no
evidence on record that the workman is the employer of the
management no. 2.
9. Now, the question arises, what relief can be given to the
workman. Workman claims that he be given reinstatement with full
back wages.
10. It is held by the Hon'ble Supreme Court of India in the case
titled BSNL V. Bhurumal that the learned counsel for the appellant
referred to two judgments wherein this Court granted compensation
instead of reinstatement. In BSNL V. Man Singh, Court has held that
when the termination is set aside because of violation of Section 25-
F of the Industrial Disputes Act, it is not necessary that relief of
reinstatement be also given as a matter of right. In Incharge Officer
LIR No. 1091/17.
Sh. Manish Dabas Vs M/s SIS Ltd and M/s DIMTS Ltd. 28.11.2018 Page No. 8 of 11
V. Shankar Shetty, it was held that those cases where the workman
had worked on daily - wage basis, and worked merely for a period
of 240 days or two to three years and where the termination had
taken place many years ago, the recent trend was to grant
compensation in lieu of reinstatement. In this judgment of Shankar
Shetty, this trend was reiterated by referring to various judgments,
as is clear from the following discussion. 2. Should an order of
reinstatement automatically follow in a case where the engagement
of a daily - wager has been brought to an end in violation of Section
25-F of the Industrial Disputes Act, 1947 (for short " The ID Act")?
The course of the decisions of this Court in recent years has been
uniform on the above question. 3. In Jagbir Singh V. Haryana Sstate
Agriculture Mktg. Board, delivering the judgment of this Court, one
of us (R.M. Lodha, J.) noticed some of the recent decisions of this
court, namaly, U.P. State Brassware Corpn. Ltd. Vs Uday Narain
Pandey, Uttranchal Forest Development Corpn. V. M.C. Joshi, State
of M.P. V. Lalit Kumar Verma, M.P. Admn. Vs. Tribuban, Sita Ram
Vs. Moti Lal Nehru Farmers Training Institute, Jaipur Development
Authority V. Ramasahai, GDA V. Ashok Kumar and Mahboob
LIR No. 1091/17.
Sh. Manish Dabas Vs M/s SIS Ltd and M/s DIMTS Ltd. 28.11.2018 Page No. 9 of 11
Deepak V. nagar Panchayat, Gajruala and stated as follows:
(Jagbir Singh case, SCC pp. 330 & 335, paras 7 & 14)
7. It is true that the earlier view of this Court articulated in many
decisions reflected the legal position that if the termination of an
employee was found to be illegal, the relief of reinstatement with full
back wages would ordinarily follow. However, in recent past, there
has been a shift in the legal position and in a long line of cases, this
court has consistently taken the view that relief by way of
reinstatement with back wages is not automatic and may be wholly
inappropriate in a given fact situation even though the termination
of an employee is in contravention of the prescribed procedure.
Compensation instead of reinstatement has been held to meed the
ends of justice.
11. In the instant case, the workman was terminated on
05/06.05.2016 and it is not believable that he might have remained
idle. In such circumstances, I deem it appropriate to grant
compensation to the workman instead of reinstatement. Considering
the length of the service and the fact that the management no. 1 has
LIR No. 1091/17.
Sh. Manish Dabas Vs M/s SIS Ltd and M/s DIMTS Ltd. 28.11.2018 Page No. 10 of 11
not paid his earned wages, back wages, gratuity and notice pay, this
court has considered it fit to grant a lump sum amount of
compensation of Rs. 90,000/-. The compensation shall be in lieu of
above said benefit. The aforesaid amount shall be paid by the
Respondent/Management within two months from the date this
Award becomes enforceable, failing which the management shall also pay interest @ 9% per annum on the aforesaid amount from the date of Award till the date of realization.
12. A copy of the award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules. File be consigned to Record Room as per rules.
PRONOUNCED IN OPEN COURT ON 28.11.2017 ATUL KUMAR GARG Digitally signed by ATUL KUMAR GARG Date: 2018.12.03 15:24:56 (ATUL KUMAR GARG) +0530 RESIDING OFFICER LABOUR COURT-XVI/ SOUTH WEST DISTRICT, DWARKA COURTS, NEW DELHI.
LIR No. 1091/17.
Sh. Manish Dabas Vs M/s SIS Ltd and M/s DIMTS Ltd. 28.11.2018 Page No. 11 of 11 LIR No. 1091/17.
Sh. Manish Dabas Vs M/s SIS Ltd and M/s DIMTS Ltd.
28.11.2017 Present: None.
Vide my separate order dictated and announced in the open court, Award is passed accordingly. Copies of award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.
(ATUL KUMAR GARG) RESIDING OFFICER LABOUR COURT-XVI/ SOUTH WEST DISTRICT, DWARKA COURTS, NEW DELHI.
LIR No. 1091/17.
Sh. Manish Dabas Vs M/s SIS Ltd and M/s DIMTS Ltd. 28.11.2018 Page No. 12 of 11