Delhi District Court
Sh. Kamal vs The on 13 March, 2023
IN THE COURT OF GORAKH NATH PANDEY,
ADDL. DISTRICT & SESSIONS JUDGE,
PRESIDING OFFICER : LABOUR COURT - IV,
ROUSE AVENUE COURTS : NEW DELHI.
LIR No.7553/2016
CNR No.DLCT130029902016
IN THE MATTER OF :
Sh. Kamal,
S/o Sh. Shiv Ram,
R/o C-3/621-22, Nand Nagri, Shahdara, Delhi.
Lastly posted in Circle No.223,
DEMS, Shahdara South Zone,
Delhi.
C/o Municipal Employees' Union,
Agarwal Bhawan, G.T.Road, Tis Hazari,
Delhi-110054. ....WORKMAN/CLAIMANT
VERSUS
The Management of Municipal Corporation of Delhi,
Through its Commissioner,
Dr. S. P. Mukherjee, Civic Centre,
J. L. Nehru Marg, Minto Road,
New Delhi. ....MANAGEMENT
Date of institution of the case : 02.03.2016
Date of passing the Award : 13.03.2023
Decision : Allowed.
AWAR D
1. This award shall decide the Industrial Dispute which
was referred by Dy. Labour Commissioner, East District on a
complaint filed by the aforesaid claimant/workman against the
Management, vide reference no.F.24(439)/E/Lab./14/590 dated
11.02.2016, u/s 10 (1) (C) and 12 (5) of The Industrial Disputes
LIR No.7553/2016
Kamal v. MCD Page No.1/20
Act, 1947, wherein the following reference was to be answered :-
"Whether services of Sh. Kamal, S/o Sh. Shiv Ram
have been terminated illegally and/or unjustifiably by
the management and if so, to what sum of money as
monetary relief along with other consequential
benefits in terms of existing Laws/Govt.
Notifications and to what other relief is he entitled
and what directions are necessary in this respect?".
2. Notice of the reference was issued to the workman
and pursuant thereto, statement of claim was filed by him
claiming therein that he joined the employment of management
in 1996 as a Safai Karamchari. Initially, he was being treated as a
substitute Safai Karamchari and was being paid fixed wages as
revised from time to time under the Minimum Wages Act. Vide
order dated 22.07.2010, the management converted substitute
safai karamcharies engaged from 01.04.1994 to 31.03.1996 into
daily wager including the workman herein. The workman worked
continuously and uninterruptedly from 1996 to 09.05.2012. The
management vide order dated 21.04.2011 gave offer letter to the
workman for his regularization on the post of Safai Karamchari
and only after its acceptance, the service of the workman
aforesaid was regularized vide order dated 09.04.2011 by the
management after his medical examination and police
verification. The workman worked sincerely with the
management and never given any opportunity of complaint
during entire service period. The services of the workman was
terminated vide termination/disengagement order dated
09.05.2012. The workman claimed that the order of termination
is bad in law and same amounts to unfair Labour Practice. It is
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further submitted by the workman that he worked for more than
240 days in the year preceding from the date of his illegal
termination and was therefore, entitled to the protection of
Section of 25F, G & H of ID Act, 1947 read with Rule 76, 77 &
78 of Industrial Dispute (Central) Rules, 1957. Letter/demand
notice dated 18.05.2012 was issued to the management which
was not replied. The workman approached the Conciliation
Officer and conciliation proceedings resulted into failure due to
adamant and non-cooperative attitude of the management. As the
workman was illegally terminated and was not reinstated, he is
entitled for reinstatement in service with full back wages. It is
claimed that the workman is unemployed since the date of his
illegal termination. As claimed, the management has not issued
any notice /charge-sheet and warning nor any domestic enquiry
was conducted while terminating the service of the workman. It
is prayed that an award be passed in favour of workman and
against management directing the management to reinstate the
claimant with consequential benefits including full back wages
and continuity in service. It is also prayed that cost of litigation
as provided under Section 11 (7) of Industrial Dispute Act be also
awarded to the workman.
3. The notice of the statement of claim was issued to
the management. Management made its appearance in this case
and filed the written statement with the contentions that the
claimant was initially taken as substitute Safai Karamchari
against daily wages on the pay scale of Rs.2500/- - 3200/- on
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Kamal v. MCD Page No.3/20
22.07.2011; the substitute safai karamcharies who considered for
regularization were appointed prior to 1996; the claimant herein
was appointed in the month of July, 2011 and it was impossible
that the claimant could have been considered for regularization in
the year 2011; the claimant managed to get his case considered
for regularization after creating the forged and false documents
with connivance of the officials from the accounts as well as
Sanitation Department; there were certain malafide done by the
claimant including other 84 safai karamcharies in connivance
with the officials of Accounts Department and Sanitation
Department for their regularization; an enquiry was conducted
against the workman by the Vigilance Deptt and after inquiry the
claimant including 84 substitute Safai Karamcharies were
disengaged/terminated vide office order no. 883/AC/SH(S)/2012-
2013 dated 09.05.2012 as they were found involved in fake
regularization and also managed to destroy the original records
with the connivance of accounts and sanitation department
officials. It has been prayed that the claim of the claimant be
dismissed as the same is based upon the false and concocted
story.
4. Vide order dated 10.08.2017, the following issues
were framed in view of pleadings of the parties:-
ISSUES:
(1) Whether workman was a leave substitute employee
of management and is not a permanent employee?
(2) Whether services of workman were terminated by
management illegally or unjustifiably? OPW
(3) Relief.
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Kamal v. MCD Page No.4/20
The case was, thereafter, fixed for evidence of
workman.
5. In order to discharge the onus and prove the issue,
the claimant had appeared as witness and filed in evidence, his
examination in chief by way of affidavit Ex. WW1/A wherein he
had reiterated the contents of his statement of claim on solemn
affirmation. Besides this, he had also placed on record the
following documents :-
(i) Ex.WW1/1: Demand notice dated 18.05.2012;
(ii) Ex.WW1/2: Copy of medical record of the
workman;
(iii) Ex.WW1/3: Copy of office order dated 22.07.2011
issued by the management;
(iv) Ex.WW1/4: Copy of office order dated 24.05.11;
(v) Ex.WW1/5: Joining letter;
(vi) Ex.WW1/6: Copy of relieving order; and
(vii) Ex.WW1/7: Copy of voter I-card.
The claimant was cross-examined by the AR of the
management. Thereafter, the workman's evidence was closed.
6. The management examined Sh. Ramesh Chandra
Sahoo, Assistant Commissioner as MW1 who filed his affidavit
by way of evidence Ex.MW1/A. Besides this, he had also placed
on record the following documents :-
(i) Ex.MW1/1: Office order dated 09.05.2012;
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Kamal v. MCD Page No.5/20
(ii) Ex.MW1/2: Office order dated 17.06.2011;
(iii) Ex.MW1/3: Application filed by the workman; and
(iv) Ex.MW1/4: Seizure memo.
MW1 was cross-examined by the AR for the
workman at length. The management's evidence was, thereafter,
closed.
7. I have heard the final arguments on behalf of the
workman as well as management. I have also gone through the
material lying on record. My issue-wise finding is as under:
Issues No.1 & 2:
(1) Whether workman was a leave substitute
employee of management and is not a permanent employee?
(2) Whether services of workman were terminated
by management illegally or unjustifiably? OPW
8. The statement of claim filed by the claimant and the
defence of the management has been mentioned at the outset.
The claimant claimed that he joined the management in 1996 at
the post of Safai Karamchari; his services were regularized vide
office order dated 09.04.11; his services were terminated illegally
and unjustifiably by the management vide order dated
09.05.2012. The workman has produced the relevant documents
i.e. Ex.WW1/1 to Ex.WW1/7.
The employer employee relationship is not disputed.
The management in the written statement claimed that since the
workman created forged and false douments with connivance of
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the officials from the accounts as well as sanitation department
for his regularization and hence his services were terminated vide
order dated 09.05.2012.
The claimant in the claim as well as in his affidavit
by way of evidence Ex.WW1/A reiterated his case regarding his
claim and also proved the relevant documents. The witness/WW1
was cross-examined by the management and deposed that:
"It is wrong to suggest that I had started working with the
management since July, 2011. I was posted at Ward No.223
in July, 2011 under Sh. Vinod Kumar Sharma, ASI. I had
lastly worked in May, 2012 but I do not remember the exact
date. It is wrong to suggest that I do not remember the exact
date. It is wrong to suggest that I had filed forged documents
in connivance with accounts department for my
regularization of my service. It is correct that I had not
worked regularly for a period more than a week or 10 days in
a month in 2011. It is wrong to suggest that management had
never declined to assign me job as a daily wager even after
May, 2012. I am working as a daily wage labourer since May,
2012 and earning arund Rs.6000/- to Rs.6500/- per month. It
is wrong to suggest that I am deposing falsely".
During cross-examination, the claimant reiterated
his case regarding his employment with the management. The
workman denied the suggestion that he had placed forged and
fabricated documents on record in collusion with the accounts
department for the purpose of regularization of his services.
Management/MCD examined MW1 Sh. Ramesh
Chandra Sahoo in support of its contentions. MW1 was cross-
examined by the AR for the workman and deposed as under:
"Ex. WW1/1 is the correct copy of the representation made by
the workman to the management. Ex. WW1/2 is the correct
copy of medical examination and Ex. WW1/3 is the correct of
copy office order dated 22.07.2011. Ex. WW1/5 is the correct
copy of the representation made by the workman to the
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management. Ex. WW1/4 is the correct office order dated
24.05.2011. Ex. WW1/6 is the correct copy of the relieving
order of the workman dated 04.08.2011.
I cannot say that the workman joined the services of the
management w.e.f. 1996 as Safai Karamchari. I have not seen
attendance record of the year, 1996 and 1997. It is incorrect to
suggest that I am deliberately not placing the true facts before
this Court to that effect to join the services of the management
w.e.f. 1996. It is correct that the attendance record is
maintained by the management and the same is authentic
record in regard to attendance and payments made to the
workman. It is incorrect to suggest that we have deliberately
not placed the attendance record of 1996 and 1997. It is
correct that the workman was not given any muster roll book
or appointment letter. It is correct that the workman was
appointed as muster roll employee and was paid salary in
once in a month. It is correct that vide order 22.10.2010, the
workman was converted from substitute Safai Karamchari to
Muster roll / daily wage Safai Karamchari. It is correct that
the workman continuously work from 1996 to 09.05.2012
with the management. It is correct that vide office order dated.
22.07.2011, the services of the workman was regularized in
the regular pay scale. It is correct that the services of the
workman were terminated vide order dated 09.05.2012. It is
also correct that the job of Safai Karamchari is of perennial
nature. No memo or charge-sheet issued if any to the
workman has been filed on record. No notice was issued nor
notice pay and service compensation was paid to the
workman. The Safai Karamcharies employed during the
period 1997-99 are still working with the management.
Q. Was any seniority list of the workman drawn?
Ans. No.
I have no document to show that the workman has been
gainfully employed anywhere after 09.05.2012".
The MW1 admits that the workman continuously
worked from 1996 to 09.05.2012 with the management; vide
office order dated 22.07.2011, the services of the workman was
regularized in the regular pay scale; services of the workman
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Kamal v. MCD Page No.8/20
were terminated w.e.f. 09.05.2012 by the management; no memo
or charge sheet issued if any to the workman has been filed on
record; the workman was not given any muster roll. There is
nothing in the cross-examination of the MW1 to controvert the
claim of the claimant. Even the testimony of MW1 during his
cross-examination proves the case of the workman. The claimant
categorically proved that he worked with the management and
completed 240 days of working in the preceding year of his
termination. There is no document on record placed by the
management to show that any Vigilance Inquiry was conducted
against the workman. The contention and claim of the workman
appears to be coherent. As noted there is no enquiry conducted
by the management before the termination of the services of the
management.
9. It is settled that where an employer has failed to
make an enquiry before dismissal or discharge of a workman, it
is open for him to justify the action before the labour court by
leading evidence before it. It is relevant to refer the observations
of Hon'ble Supreme Court in Civil Appeal No.142/2021 titled
State of Uttarakahand and Ors. vs. Smt. Sureshwati decided on
20.01.2021. As held in the relevant para no.14
14. This Court has in a catena of decisions held that where an
employer has failed to make an enquiry before dismissal or
discharge of a workman, it is open for him to justify the action
before the Labour Court by leading evidence before it. The entire
matter would be open before the tribunal, which would have the
jurisdiction to satisfy itself on the evidence adduced by the
parties whether the dismissal or discharge was justified. A four
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Judge Bench of this Court in Workmen of the Motipur Sugar
Factory Private Ltd. v. Motipur Sugar Factory (AIR 1965 SC
1803) held that:
" 11. It is now well settled by a number of decisions of this Court
that where an employer has failed to make an enquiry before
dismissing or discharging a workman it is open to him to justify
the action before the tribunal by leading all relevant evidence
before it. In such a case the employer would not have the benefit
which he had in cases where domestic enquiries have been held.
The entire matter would be open before the tribunal which will
have jurisdiction not only to go into the limited questions open to
a tribunal where domestic enquiry has been properly held (see
Indian Iron & Steel Co. v. Workmen (AIR 1958 SC 130) but also
to satisfy itself on the facts adduced before it by the employer
whether the dismissal or discharge was justified. We may in this
connection refer to Sana Musa Sugar Works (P) Limited v.
Shobrati Khan (AIR 1959 SC 923), Phulbari Tea Estate v.
Workmen (AIR 1959 SC 1111) and Punjab National Bank
Limited v. Workmen (AIR 1960 SC 160). These three cases were
further considered by this Court in Bharat Sugar Mills Limited
v. Jai Singh (1962) 3 SCR, 684 and reference was also made to
the decision of the Labour Appellate Tribunal in Ram Swarath
Sinha v. Belsund Sugar Co. (1954) LAC 697 . It was pointed out
that "the important effect of omission to hold an enquiry was
merely this: that the tribunal would not have to consider only
whether there was a prima facie case but would decide for itself
on the evidence adduced whether the charges have really been
made out". It is true that three of these cases, except Phulbari Tea
Estate case, were on applications under Section 23 of the
Industrial Disputes Act, 1947. But in principle we see no
difference whether the matter comes before the tribunal for
approval under Section 33 or on a reference under Section 10 of
the Industrial Disputes Act, 1947. In either case if the enquiry is
defective or if no enquiry has been held as required by Standing
Orders, the entire case would be open before the tribunal and the
employer would have to justify on facts as well that its order of
dismissal or discharge was proper. Phulbari Tea Estate
case was on a reference under Section 10, and the same principle
was applied there also, the only difference being that in that case
there was an inquiry though it was defective. A defective
enquiry in our opinion stands on the same footing as no enquiry
and in either case the tribunal would have jurisdiction to go into
the facts and the employer would have to satisfy the tribunal that
on facts the order of dismissal or discharge was proper."
Subsequently in Delhi Cloth and General Mills Co. v.
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Kamal v. MCD Page No.10/20
Ludh Budh Singh (1972) 1 SCC 595 this Court held that :
"(1) If no domestic enquiry had been held by the management, or
if the management makes it clear that it does not rely upon any
domestic enquiry that may have been held by it, it is entitled to
straightway adduce evidence before the Tribunal justifying its
action. The Tribunal is bound to consider that evidence so
adduced before it, on merits, and give a decision thereon. In such
a case, it is not necessary for the Tribunal to consider the validity
of the domestic enquiry as the employer himself does not rely on
it.
....
(3) When the management relies on the enquiry conducted by it, and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management, are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.
Reliance is also placed on the judgment of this Court in Workmen of Firestone Tyre & Rubber Co. of India (P) Ltd. v. The Management of Firestone Tyre & Rubber Co. of India (P) Ltd and Others. (1973) 1 SCC 813 wherein the broad principle regarding holding of the enquiry were spelt out as:
"32. From those decisions, the following principles broadly emerge:
"(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality. (3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the LIR No.7553/2016 Kamal v. MCD Page No.11/20 employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide. (4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct. (9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation. (10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Management of Panitole Tea Estate v.
Workmens, (1971) 1 SCC 742 within the judicial decision of a LIR No.7553/2016 Kamal v. MCD Page No.12/20 Labour Court or Tribunal.
..........
40. Therefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under Section 11A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case and hold that no misconduct is proved.
41. We are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference under Section 11A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to re appraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, Section 11A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11A."
10. It is reiterated that in this case no steps were taken by the management in respect of charge sheet and inquiry at all nor the management proved any reason of termination of LIR No.7553/2016 Kamal v. MCD Page No.13/20 claimant. In view of the aforesaid discussions, it is held that the management herein has not been able to discharge its onus in support of contentions. It is duly proved from the materials on record and the testimony of the witnesses that the services of the claimant were terminated illegally/unjustifiably by the management. In view of the above discussions, the Issue no.1 is decided against the management whereas Issue No.2 is decided in favour of the workman and against the management.
Relief:
11. The claimant herein has sought the relief of reinstatement in the service with full back wages along with the continuity of service and all the consequential benefits. The term "reinstatement" has not been elucidated in the Industrial Disputes Act, 1947. The Shorter Oxford English Dictionary, Vol. II, 3rd Edition stated that, the word "reinstate" means to reinstall or reestablish (a person or thing in a place, station, condition etc.); to restore to its proper and original state; to reinstate afresh and the word "reinstatement means the action of reinstating; reestablishment. "As per Black's Law Dictionary, 6th Edition, "reinstatement" means 'to reinstall, to reestablish, to place again in a former state, condition, or office, to restore to a state or position from which the object or person had been removed'.
12. In Hindustan Tin Works Pvt. Ltd. Vs. The Employees of Hindustan Tin Works Pvt. Ltd., (1979 (2) SCC 80).
LIR No.7553/2016 Kamal v. MCD Page No.14/20The three judges Bench of the Hon'ble Supreme Court has laid down :
"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 stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances..."
13. In cases of wrongful termination of service, reinstatement with continuity and back wages is the normal rule as held by the Hon'ble Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya and Ors., (2013) 10 SCC 324. The concept of reinstatement was also discussed therein:
"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money..... The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments." (emphasis supplied).
Further, the Hon'ble Supreme Court laid down the LIR No.7553/2016 Kamal v. MCD Page No.15/20 following principles to govern the payment of back wages:
(Deepali Gudnu Surwase case, SCC pp. 356-58, para 38) "38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2 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.
38.3 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 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 averment 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. 38.4 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 or full back wages. 38.5 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 victimising the employee or workman, then the court or tribunal concerned 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 LIR No.7553/2016 Kamal v. MCD Page No.16/20 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 keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a 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.
38.6 In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation 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-a-
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 frame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees".
14. In the case titled as Tapash Kumar Paul Vs BSNL & Anr, and reported as of JT 2014 (7) SC 589, the Hon'ble Supreme Court has held that the court may either award the compensation or order for reinstatement in the cases which do not fall within the five categories as described by the Hon'ble Supreme Court in the aforesaid judgment. The relevant portion of this judgment is reproduced as under :
"It is no doubt true that a Court may pass an order substituting an order of reinstatement by awarding compensation but the same has to be based on justifiable grounds viz.(i) where the industry is closed; (ii) where the employee has superannuated or going to retire shortly and no period of service is left to his credit; (iii) where the workman has been rendered incapacitated LIR No.7553/2016 Kamal v. MCD Page No.17/20 to discharge the duties and cannot be reinstated and/or; (iv) when he has lost confidence of the Management to discharge duties. What is sought to be emphasised is that there may be appropriate case on facts which may justify substituting the order of reinstatement by award of compensation, but that has to be supported by some legal and justifiable reasons indicating why the order of reinstatement should be allowed to be substituted by award of compensation. In the instant matter, we are not satisfied that the appellant's case falls in to any of the categories referred to hereinbefore which would justify compensation in lieu of reinstatement. We thus find no justification for the High Court so as to interfere with the Award passed by the Tribunal which was affirmed even by the single Judge, but the Division Bench thought it appropriate to set aside the order of reinstatement without specifying any reasons whatsoever, as to why it substituted with compensation of a meager amount of Rs.20,000/- to the appellant."
15. Hon'ble High Court of Delhi in the matter titled as Thomas Reuters Private Limited vs. Ld. Presiding Officer, Labour Court & Ors. cited as MANU/DE/2665/2021, dated 30.09.2021 has held that in cases of illegal dismissal, the normal rule is reinstatement with full back wages. The Hon'ble High Court of Delhi in Paras No. 102, 106 and 119 thereof has held as under :
"102. In view of the conspectus of the aforesaid judgements, be it ingeminated that whenever an employee is dismissed, removed or terminated and the action of the employer is found to be illegal, the normal rule, albeit subject to exceptions, is that the employee should be restored to the position which he or she held before the umbilical cord broke between the employer and the employee. As noticed by the Hon'ble Supreme Court, the word 'reinstatement' means to reinstall/re- establish/restore to the earlier position or former state, condition or office.
"106. Recent trend of judgements shows that Courts have been holding that reinstatement may not be a natural or automatic consequence of setting-aside of dismissal order. However, reading of the two aforesaid judgements and other recent judgements, in my considered view, leads to an inevitable conclusion that for the purpose of grant of relief of reinstatement, Courts have always understood and appreciated LIR No.7553/2016 Kamal v. MCD Page No.18/20 the difference in the nature of employment of the employee as well as the length of service. In the present case, Respondent No.2 was a regular employee, with over nineteen years of continuous and unblemished service and clearly falls within the axiomatic jurisprudence and legal regime laid down by the Hon'ble Supreme Court in Hindustan Tin Works (supra) and not in the exceptions in the later judgements.
"119. On a reading of the above conspectus of judgements and the principles propounded in Deepali Gundu (supra), it is clear that the law on back wages is no longer res integra. In cases of wrongful termination, reinstatement with back wages is the normal rule, subject to course to a caveat that while deciding the issue of back wages, Courts may take into consideration a host of factors, such as length of service of the employee, financial condition of the employer, etc. The employee is required to plead that he or she was no gainfully employed or was employed on lesser wages. As observed in Deepali Gundu (supra), in cases where the Competent Court or Tribunal finds that employer has acted in gross violation of statutory provisions and/or Principles of Natural Justice, etc. then it shall be fully justified in directing payment of full back wages and in such cases, Superior Courts should not exercise powers under Article 226 or Article 136 of the Constitution of India and interfere with the Award, only because there is possibility of forming a different opinion. Hon'ble Supreme Court has also struck a note of caution that Courts must always keep in view that in cases of wrongful termination, wrongdoer is the employer and sufferer is the employee/workman and thee is thus no justification to give a premium to the employer for their wrongdoing by relieving them of the burden to pay back wages."
16. In the present case, the claimant had worked with the management for more than 16 years before his illegal termination on 09.05.2012, as such, this court is of the considered view that the case of the claimant does not fall in any of the categories as mentioned by Hon'ble Supreme Court in the case of Tapash Kumar Paul Vs BSNL & Anr,(Supra) and therefore, in the present case claimant is entitled to be reinstated in services.
LIR No.7553/2016 Kamal v. MCD Page No.19/2017. The reference is answered accordingly in favour of the claimant/workman and against the management and the claimant/workman namely Sh. Kamal is entitled for reinstatement in services on the post on which he was working on the date of termination with full back wages with effect from 09.05.2012 i.e. the date of termination of the claimant up-to-the date of the award with other consequential benefits.
18. Management is directed to pay the amount accrued in favour of claimant within three months from the date of publication of award. If the management fails to pay the amount within the time stipulated, the accrued amount shall carry interest @ 9% per annum from the date of accrual and till the final payment is made.
19. Award is passed and reference is answered accordingly.
20. Digitally signed copy of Award be uploaded on the website of RADC. A copy of the award be sent to the concerned Dy. Labour Commission for publication as per rules.
21. File be consigned to the Record Room.
Digitally signed by GORAKH GORAKH NATH
NATH PANDEY
Date: 2023.03.18
PANDEY 14:51:02 +0530
Announced in the open (Gorakh Nath Pandey),
Court on 13.03.2023 Addl. District & Sessions Judge,
Presiding Officer Labour Court- IV,
Rouse Avenue District Courts, New Delhi.
LIR No.7553/2016
Kamal v. MCD Page No.20/20