Delhi District Court
Sh. Amender Jha vs M/S. Jeewan Nursing Home And Hospital on 21 March, 2018
IN THE COURT OF SHRI UMED SINGH GREWAL
PILOT COURT / POLCXVII, ROOM NO. 514:
DWARKA COURTS: NEW DELHI
LIR No.2928/17
IN THE MATTER OF:
Sh. Amender Jha
S/o Late Sh. Rajeshwar Jha, Age 38 years,
R/o House No. 499, Pandav Nagar,
Naraina, New Delhi, (Mobile No. 9711286253)
through Hindustan Engineering and
General Mazdoor Union (Regd.), D2/24,
Sultanpuri, Delhi, Ph. No. 25961466, 9810479644, 9810079644
..............Workman
Versus
1. M/s. Jeewan Nursing Home and Hospital
2 B, Pusa Road, New Delhi110005
2. M/s. Jeewan Medical Centre Pvt. Ltd.
2 B, Pusa Road, New Delhi110005
(Ph. No. 42430246249) ............. Managements
DATE OF INSTITUTION : 27.09.2017
DATE ON WHICH AWARD RESERVED : 19.03.2018.
DATE ON WHICH AWARD PASSED : 21.03.2018.
A W A R D :
1. Vide Order No. F. No. F.24(185)/17/Ref./CD/Lab./966
970 dated 22.09.2017, issued by Govt. of NCT of Delhi, a reference
LIR No. 2928/17. 1/27
was sent to this Court with the following terms:
"Whether Sh. Amender Jha S/o Late Sh.
Rajeshwar Jha Age 38 years absented from
his duties unauthorizedly or his services 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. Claimant's case is that he had joined the management as
security guard on 24.08.1999 at the initial salary of Rs.1700/ per
month and the management used to take work of 12 hours per day.
His last drawn salary was Rs.5800/ per month. The management
did not provide him appointment letter from the date of joining, pay
slip, attendance card, identity card, ESI, PF, casual leaves, earned
leaves and bonus. He was not provided minimum wages which were
Rs.9048/, 9178/ and Rs.9412/ w.e.f. 01.04.2015, 01.10.2015 and
01.04.2016. The management had obtained his signatures on blank
papers and vouchers at the time of appointment. When he asked it to
cancel the signed blank papers, vouchers and printed proformas, the
management got enraged. His attendance used to be marked on
muster roll and salary was paid by obtaining signatures on wage
register. The practice adopted by management was that it used to fill
up salary register with pencil before getting his signatures. After
getting his signatures, it used to fill up salary register with pen as per
their wish. PF & ESI contribution were also deducted from his
LIR No. 2928/17. 2/27
salary of Rs.5800/ per month which he was opposing since long.
He had asked management to hike salary but no attention was paid
and rather, the management was feeling aggrieved due to that
demand. He had taken photographs of the misdeed of the
management. When he demanded those facilities again, his service
was terminated in the post lunch session of 20.05.2016 by with
holding earned wages from 01.05.2016 to 19.05.2016. He had filed
case against management on 23.05.2016 before the Authority under
Minimum Wages Act for overtime and minimum wages. When it
came to know of that case, it lodged a false complaint against him
and his real brother/coemployee on the allegations that they had
stolen the record of the management. The FIR is still pending.
Demand notice dated 28.01.2017 for reinstatement, earned wages
and promotion etc. went unreplied. It did not show interest to settle
the matter before Conciliation Officer and, hence, the dispute
remained unresolved. He is unemployed since termination.
3. WS is to the effect that the claimant had not joined it on
24.08.1999 at a monthly salary of Rs.1700/ per month on that he
used to work 12 hours per day. In fact, he had joined as Watchman
on 01.08.2003 and appointment letter was issued to him duly. He
was paid minimum wages as announced by the Govt. of NCT of
Delhi from time to time. His last drawn salary was Rs.9570/. All
LIR No. 2928/17. 3/27
statutory benefits were extended to him and, hence, he had worked
satisfactory without any complaint. ESI benefit was not provided to
him because the Hon'ble High Court of Delhi, in WPC No. 6111/11
titled as Delhi Medical Assessment, registered Vs. Union of India &
Another, had stayed deduction of ESI contribution from its
employees, vide order dated 03.02.2012. PF was deducted from his
minimum wages. Prescribed bonus was always paid to him. He used
to avail casual as well as earned leaves. His salary is not outstanding
towards it. He had filed an application under Delhi Estates &
Establishment Act, 1954 and the Minimum Wages Act, 1948 for
arrears of minimum wages and overtime. Contents of that
application are totally contradictory to the contents of present case.
Before that authority, the management had filed salary register, the
document regarding payment of minimum wages and overtime to
the claimant, the documents of PF. Genuineness of those document
was verified from PF authority and those were found correct. After
scrutinizing the salary and attendance registers, vouchers, PF record
and PF demand receipts, the Authority had made up its mind to
dismiss the complaint but the claimant withdrew the application. His
signatures were never obtained on blank papers, vouchers or printed
proformas and so, there was no occasion for the claimant to request
management to cancel those documents. His attendance used to be
marked on muster roll and salary was paid by obtaining his
LIR No. 2928/17. 4/27
signatures on salary register. But, it never used to file up salary
register with pencil and thereafter, used to change contents thereof
with pen after obtaining claimant's signatures. His last PF was
deducted at the monthly salary of Rs.9570/.
The claimant left the work place on 20.05.2016
abruptly by stealing some documents, registers and files due to
which it had given complaint against him on 07.06.2016 on which
FIR No. 249/16 was registered against him. The management had
sent letters dated 21.05.2016, 23.05.2016, 27.05.2016 and
31.03.2017 asking him to join back duty but he did not respond. He
was supplied chargesheet dated 28.02.2017 to which he did not file
reply. The domestic enquiry was initiated by appointing an enquiry
officer who sent intimation letters to him regarding date, time and
venue of enquiry but he did not participate inspite of the knowledge.
The management has still not taken any disciplinary action against
him on enquiry report due to pendency of the present dispute. His
name has still not been struck off from roll. Due to his misconduct,
the management has lost confidence in him.
4. Following issues were framed on 30.10.2017:
1. Whether the claimant himself left the job by remaining
unauthorizedly absent w.e.f. 20.05.16? OPM
2. Whether termination of service of claimant by management
LIR No. 2928/17. 5/27
on 20.05.16 is illegal and/or unjustifiable? OPW
3. Relief
5. In order to substantiate the case, the claimant tendered
his affidavit in evidence as Ex.WW1/A mentioning all the facts
stated in statement of claim. He relied upon following documents:
1. Ex.WW1/1 is copy of demand notice dated 28.01.17.
2. Ex.WW1/2 is postal receipt vide which demand notice was sent to
management.
3. Ex.WW1/3 is statement of claim filed before Conciliation Officer.
4. Mark W1 (03 pages) are copies of detail of salary.
5. Mark W2 (02 pages) is copy of Form 6A of EPF and Form 3A of
EPF.
He also tendered following documents on 24.01.2018:
(I) Ex.WW1/4 is transcript of all 8 CDs.
(ii) Ex.WW1/5 is CD no. 1 and its transcript is from point A to
B in Ex.WW1/4.
(iii) Ex.WW1/6 is CD no. 2 and its transcript is from point C to
D in Ex.WW1/4.
(iv) Ex.WW1/7 is CD no. 3 and its transcript is from point E to F
in Ex.WW1/4.
(v) Ex.WW1/8 is CD no. 4 and its transcript is from point G to
H in Ex.WW1/4.
LIR No. 2928/17. 6/27
(vi) Ex.WW1/9 is CD no. 5 and its transcript is from point I to J
in Ex.WW1/4.
(vii) Ex.WW1/10 is CD no. 6 and its transcript is from point K to
L in Ex.WW1/4.
(viii) Ex.WW1/11 is CD no. 7 and its transcript is from point M to
N in Ex.WW1/4.
(ix) Ex.WW1/12 is CD no. 8 and its transcript is from point O to
P in Ex.WW1/4.
6. The management examined one of its Director Dr.
Vivek Sabharwal as MW1 who repeated the contents of WS in his
affidavit in Ex. MW1/A. He relied upon following documents:
1. Ex.MW1/1 is copy of resolution dated 02.06.17.
2. Ex.MW1/2 (02 pages) is copy of EPF eligibility register showing
the date of appointment of the claimant.
3. Ex.MW1/3 (10 pages) are copies of order dated 03.02.12 by the
Hon'ble High Court of Delhi.
4. Copies of salary register from 01.04.11 to 31.12.11 already Mark
A to Mark H now Ex.MW1/4 to Ex.MW1/12 (from page No.66 to
74).
5. Copies of salary register from January, 2012 to March, 2012
already Mark I to K now Ex.MW1/13 to Ex.MW1/15 (from page
No.75 to 77).
LIR No. 2928/17. 7/27
6. Copies of salary register for April, 2012 already Mark L now
Ex.MW1/16.
7. Copy of salary register for July, 2012 already Mark M now
Ex.MW1/17.
8. Copy of salary register for January, 2013 already Mark N now
Ex.MW1/18.
9. Copy of salary register for March, 2013 already Mark O now
Ex.MW1/19.
10. Copy of salary register for October, 2013 already Mark P now
Ex.MW1/20.
11. Copy of salary register for May, 2014 already Mark S now
Ex.MW1/21.
12. Copy of salary register for September, 2014 already Mark T now
Ex.MW1/22 (02 pages).
13. Copy of salary register for October, 2014 already Mark U now
Ex.MW1/23.
14. Copy of salary register for December, 2014 already Mark V now
Ex.MW1/24.
15. Copy of salary register for March, 2015 already Mark W now
Ex.MW1/25.
16. Ex.MW1/26 to Ex.MW1/37 (from page No.209 to 220) are
copies of salary register from April, 2015 to March, 2016.
17. Ex.MW1/38 (from page No.133 to 136) are copies of leave
LIR No. 2928/17. 8/27
salary register for the year 20132014.
18. Copies of bonus register for the period 20132014 already Mark
R now Ex.MW1/39 (from page No.137 to 140).
19. Copies of leave register for the period 20142015 already Mark
X now Ex.MW1/40 (from page No.188 to 189).
20. Ex.MW1/41 is copy of bonus register for the period 20142015.
21. Ex.MW1/42 to Ex.MW1/61 (from page No.14 to 49) are copies
of overtime payment vouchers.
23. Ex.MW1/62 is copy of application dated 27.02.17 filed by the
claimant before Authority for withdrawal of the case.
24. Ex.MW1/63 is copy of order dated 27.02.17 passed by the
Authority.
25. Ex.MW1/64 is copy of letter dated 21.05.16 sent to the claimant
by the management.
26. Ex.MW1/65 is copy of postal receipt vide which letter dated
21.05.16 was sent to claimant.
27. Ex.MW1/66 is copy of letter dated 23.05.16 sent by
management to Labour Commissioner regarding unauthorized
absent of the claimant.
28. Ex.MW1/67 is copy of postal receipt vide which letter dated
23.05.16 was sent to Labour Commissioner.
29. Ex.MW1/68 is copy of letter dated 27.05.17 submitted by the
management to the SHO PS Rajender Nagar.
LIR No. 2928/17. 9/27
30. Ex.MW1/69 is copy of letter dated 27.05.16 sent by
management to claimant regarding unauthorized absence.
31. Ex.MW1/70 is copy of postal receipt vide which letter dated
27.05.16 was sent to claimant.
32. Ex.MW1/71 is copy of letter dated 27.05.16 sent to claimant by
the management.
33. Ex.MW1/72 is copy of postal receipt vide which Ex.MW1/71
was sent to claimant.
34. Ex.MW1/73 is copy of closed envelope containing the letter sent
to claimant by management with the report of postal department
"refused".
35. Ex.MW1/74 (02 pages) is copy of chargesheet dated 28.02.17
sent by management to claimant.
36. Ex.MW1/75 is copy of postal receipt vide which chargesheet
was sent to claimant.
37. Ex.MW1/76 is copy of delivery certificate generated by Internet
showing the receipt of chargesheet by claimant.
38. Ex.MW1/77 is copy of letter dated 31.03.17 sent by
management to claimant.
39. Ex.MW1/78 is copy of postal receipt vide which letter dated
31.03.17 was sent to claimant.
40. Ex.MW1/79 is copy of letter dated 07.04.17 sent by
management to claimant at the union address.
LIR No. 2928/17. 10/27
41. Ex.MW1/80 are copies of two postal receipts.
42. Ex.MW1/81 is copy of letter dated 09.05.17 sent by enquiry
officer to the claimant regarding date, time and venue of enquiry.
43. Ex.MW1/82 & Ex.MW1/83 are copies of postal receipts vide
which letter dated 09.05.17 was sent to claimant on his home
address and union address.
44. Ex.MW1/84 is copy of delivery certificate generated by internet.
45. Ex.MW1/85 is copy of letter dated 31.03.17 alongwith postal
receipt Ex.MW1/86.
46. Ex.MW1/87 is copy of reply dated 31.03.17 of demand notice
alongwith postal receipt Ex.MW1/88.
47. Ex.MW1/89 is copy of undated letter written by coemployee
Lalitha and given to the management regarding her visit and
conversation to the claimant.
48. Ex.MW1/90 is copy of undated letter written by coemployees
and given to the management regarding her visit and conversation to
the claimant.
49. Ex.MW1/91 (from page No.222 to 234) are copies of attendance
register from May, 2016 to March, 2017.
50. Ex.MW1/92 (from page No.239 to 253) are copies of attendance
register from April, 2017 to August, 2017.
51. Ex.MW1/93 (from page No.1 to 5) are copies of attendance
register from September, 2017 to January, 2018.
LIR No. 2928/17. 11/27
52. Ex.MW1/94 (from page No.18 to 49) are copies of EPF challan
for the period 20122013.
53. Ex.MW1/95 (from page No.50 to 84) are copies of EPF challan
for the period 20132014.
54. Ex.MW1/96 (from page No.85 to 118) are copies of EPF challan
for the period 20142015.
55. Ex.MW1/97 (02 pages) is copy of application under Section 21
of Delhi Shops and Establishment Act filed by claimant.
56. Ex.MW1/98 (02 pages) is copy of application u/s 20(2) of the
Minimum Wages Act.
57. Ex.MW1/99 (02 pages) is copy of application u/s 20(2) of the
Minimum Wages Act.
ISSUE NOS. 1 & 2
7. Both these issues are interconnected and, hence, are
being taken up together.
8. Ld. ARW argued that claimant had joined the
management security guard on 24.08.1999. He was compelled to
work 12 hours per day at the last drawn salary of Rs.5800/ per
month. He was not issued appointment letter, ESI & PF from the
date of appointment, wages slip, attendance card, identity card,
earned leaves, casual leaves, bonus and overtime as per Minimum
Wages Act, 1948. His signatures were obtained on blank papers and
LIR No. 2928/17. 12/27
vouchers at the time of appointment. When he demanded those
facilities and cancellation of blank papers and vouchers on which his
signatures had been obtained, the management got enraged. PF and
ESI contributions were deducted from the salary of Rs.5800/ per
month. He had asked management to hike his salary but the same
was not done. When he demanded above facilities time and again,
his service was terminated on 20.05.2016 by withholding earned
wages from 01.05.2016 to 19.05.2016. When filed case before the
Authority under Minimum Wages Act on 23.05.2016 for recovery
of wages as per Minimum Wages Act, 1948 and overtime wages, the
management got registered a false FIR against him and his brother.
The management used to obtain his signatures by filling the salary
register with pencil and after his signatures, the contents of register
were written with pen as per the wish of the management. He had
taken photographs of that misdeed of the management.
Ld. ARM replied that claimant's last drawn salary was
as per Minimum Wages Act which at the relevant time was
Rs.9570/ per month. PF was deducted on his basic salary. The
management could not enlarge him the benefit of ESI as the same
was stayed by the order dated 03.02.2012 of Hon'ble High Court
passed in WPC No. 6111/11 titled as Delhi Medical Association,
Registered Vs. Union of India & Anr. Overtime wages were paid to
him through vouchers and not through wage register. He and his
LIR No. 2928/17. 13/27
brother started absenting from duty w.e.f. 20.05.2016 and the
management came to know after sometime that they had stolen
office record and, hence, it sent P.S. Rajinder Nagar a complaint
dated 07.06.2016 to that effect upon which FIR No. 249/16 u/s 380
IPC was registered. The management had lost faith in them due to
their misconduct. It had sent him letters dated 21.05.2016,
23.05.2016, 27.05.2016 and 31.03.2017 to join back duty but he did
not join. Offer was given to him before the Authority under
Minimum Wages Act to join back but he did not avail the offer. In
WS before Conciliation Officer, the management had taken the
defence that his his service had not been terminated. After getting
copy of WS, the claimant did not express his will that he was ready
to join back. He submitted that 8 CDs placed on record by the
claimant to prove that the management used to pay him salary of
Rs.5800/ by writing the salary register with pencil and converting
the same with pen after his signature, are hit by Section 65 B of
Indian Evidence Act because the certificate under that section has
not been filled by the claimant. He submitted that for unauthorized
absence and misconduct of theft, the management has completed
domestic enquiry but it has still not taken any action against him
because the matter is subjudice.
9. The date of appointment of the claimant is mentioned as
LIR No. 2928/17. 14/27
24.08.1999 in statement of claim Ex.WW1/M38 filed before the
Authority under Minimum Wages Act on 23.05.2016. In the present
case also, the said date is mentioned as 24.08.1999. The prime issue
before this court is not the date of joining. It is to decide whether he
had voluntarily left the job or his service was terminated illegally.
He admitted in crossexamination that facility of PF
was granted to him from the date of appointment. PF papers are Ex.
MW1/2 in which his date of joining the management is mentioned
as 01.08.2003. So, it is held that claimant had joined the
management not on 24.08.1999 but on 01.08.2003.
10. The first reason of termination of service deposed by
claimant is that when he demanded ESI facility, the same became
bone of contention. The order dated 03.02.2012 passed by Hon'ble
High Court Delhi is on the file as Ex. MW1/3 in which the stay
order for providing ESI scheme was passed. Name of the
management is appearing at serial no. 114. In view of that order, the
management was justified not to extend the facility of ESI to the
claimant.
The second reason of termination stated by claimant is
refusal of management to deduct PF contribution on the basis of
minimum wages. In this regard, the management has filed PF record
from Ex. MW1/94 to Ex. MW1/96 which shows that the PF use to
be deducted from minimum wages. The claimant did not examine
LIR No. 2928/17. 15/27
any witness from PF department to prove that the PF was deducted
on Rs.5800/.
11. In order to prove that the management used to pay him
only Rs.5800/ as salary, the claimant is heavily relying upon 8 CDs.
Contention of ARM is that the CDs are not admissible in evidence
because he did not file certificate u/s 65B of Indian Evidence Act,
1872. He relied upon 'Anvar P.V. Vs. P.K. Basheer & Ors SLT
2014 VOL. VIII Page 223 Supreme Court'. Ld. ARM replied that
strict provisions of CPC and Evidence Act are not applicable to
labour cases.
Ld. ARM is not incorrect in arguing that the provisions
of Evidence Act and CPC are not applicable to labour cases. The
citation relied upon by ARM is not of a labour case. ARM also
admitted that the cited case does not pertain to the labour case. I.D.
Act, 1947 was brought on statute book to provide relief to the down
trodden section of the society. Such persons cannot be expected to
be conversant with the niceties of the law of evidence. Due to that
reason, it is held that CDs are very much admissible in the present
case, being the labour case.
In all CDs, the dates are appearing as 08.07.2013 and
08.05.2015 but it becomes clear from the perusal of CDs that the
claimant is signing the salary register for April 2015 , October 2015,
LIR No. 2928/17. 16/27
February 2016 and March 2016. So the dates 08.07.2013 and
08.05.2013 are not correct one. Those dates do not denote that the
CDs prepared on those dates. The salary registers prove the fact that
the CDs pertain to the months in which the claimant is seen signing
the same.
The salary registers are not proving the fact that
claimant was being paid salary as only Rs.5800/ per month. It
becomes clear from crossexamination of WW1 dated 08.02.2018
that the amount of Rs.13,950/ finding mention in transcript Ex.
WW1/4 from point A to B, was given to claimant and his
brother/coemployee Ashok Kumar Jha. It has been admitted by Ld.
ARM during arguments that the amount of Rs.13,950/, Rs.
16,800/, Rs.15,235/ and Rs.18,100/ referred to transcript Ex.
WW1/4 was the total salary of both brothers for those months.
12. Perusal of wage register Ex.WW1/M25 shows that the
claimant had worked for 31 days in October 2015. His total salary
for 31 days comes out to Rs.9050/ and after deduction of PF of
Rs.1086/, the net amount was Rs.7964/. In that month his brother
Ashok Kumar Jha has worked for 21 days and his salary was intact
as Rs.6,131/. PF contribution was Rs.736/ and, hence, he was paid
a salary of Rs.5395/. Total to that amount comes approx. to
Rs.13,950/ and the same amount is appearing in CDs and transcript.
LIR No. 2928/17. 17/27
The total salary of Rs.16,800/ for claimant and his
brother is appearing in transcript Ex. MW1/4 from point E to F for
February 2016. That amount was counted by coemployee
Amrendra Jha. The wage register Ex. MW1/8 shows that both
brothers had worked on all days February 2016 and so, salary of
each of them was Rs.9180/. PF of each of them was Rs.1102/.
After deducting PF, the net amount of Rs.8078/ was given to each.
The total of these amounts comes approx. to Rs.16,800/ which is
appearing in transcript Ex. MW1/4 and CDs.
Total amount paid to claimant and his brother for April
2015 is appearing as Rs.15,235/ from point G to H in transcript Ex.
MW1/4. That amount was counted by the complainant. As per
salary register Ex. MW1/8, claimant had worked for 27 days in
April 2015. So, after deducting PF of Rs.977/ from gross salary of
Rs.8145/, his net salary comes out to Rs.7168/. The complainant's
brother had worked for 24 days in April 2015 and so, his salary was
Rs.7240/. After deducting PF of Rs.869/, net amount paid to him
was Rs.6371/. Total of both amounts comes out to approx. the same
as mentioned in transcript Ex. WW1/4 from point G to H.
Salary paid to both brothers for March 2016 is
appearing as Rs.18,100/ in CD transcript Ex. WW/14 from point K
to L. The claimant admitted in crossexamination that the said
amount was counted by his brother Amrendra Jha. As per salary
LIR No. 2928/17. 18/27
register Ex. MW1/8 the claimant had worked for 29 days in March
2016 and so, his salary was Rs.8588/. After deducting PF of
Rs.1031/, the net amount of Rs.7557/ was paid to him. Ashok Jha
had worked for 26 days and, hence, his total salary was Rs.7699/.
After deducting PF of Rs.924/, he was paid net amount of
Rs.6775/. Total of both amounts comes approx. to the amount of
Rs.18,100/ mentioned in transcript Ex. WW/14 from point K to L.
So, it is held that the CDs and transcripts are not
proving that the claimant was paid salary @ Rs.5800/ per month.
13. Ld. ARW argued that the amount mentioned in CDs
and transcripts not only included the salary but overtime wages also.
So, the total amount to be paid to the claimant should have been
quite more than the amounts mentioned in transcript Ex. WW1/4
because it is the case of both parties that the claimants used the work
for 12 hours per day. Ld. ARM admitted that claimants used to work
12 hours per day but they were paid earned wages through salary
register and overtime wages were paid by separate vouchers and he
relied upon those vouchers. Ld. ARW argued that claimant has
denied signatures on those vouchers and, hence, the same have
remained unproved. Ld. ARM replied that the same may be
compared, in the absence of handwriting expert report, by the court
itself and in this regard, he relied upon case law 'Murari Lal Vs.
LIR No. 2928/17. 19/27
State of M.P. AIR 1980, Supreme Court 531'.
The claimant denied his signatures on the vouchers but
perusal of signatures appearing on vouchers with his signatures on
his crossexamination, shows that the signatures have been done by
one and the same person i.e. claimant. The claimant had signed the
salary register and simultaneously, he had signed vouchers on which
it is mentioned that the amount was meant for overtime. Hence, it is
held that the management used to pay salary to the claimant by the
salary registers and overtime wages by obtaining his signatures on
separate vouchers. With the help of overtime wages vouchers and
salary register, this court is coming to the conclusion that the
management was paying salary to the claimant which was not below
minimum wages.
14. But what was the loss straw that broke the camel's
back? The claimant admitted in crossexamination that he had
demanded hike in wages in May 2016. He further admitted that the
management did not agree to increase of wages. He further admitted
that there was no dispute between him and management before
20.05.2016 as he was working satisfactorily. He concluded by
admitting that if the management had increased his salary as per his
demand, he would not have filed the case against it. Such type of
crossexamination shows that the relations between the parties were
LIR No. 2928/17. 20/27
strained because the claimant was demanding hike which was not
acceptable to the management. That fact may be the prime reason
for both parties to take action against each other. Due to existence of
that reason, the management might have terminated claimant's
service. It is very much possible that claimant might also have left
the job voluntarily as the management had not accepted his demand
of salary hike. That reason is a double edged weapon. It cuts both
ways. So, existence to that fact is not sufficient to hold that the
management had terminated claimant's service or that the claimant
had himself left the job. Some more is to be seen.
15. In WS, the management took the defence that it had
sent claimant letters dated 21.05.2016, 23.05.2016, 27.05.2016 &
31.03.2017 to join back duty but he did not respond. Ld. ARW
argued that the claimant used to reside in premises No. 499, 2 nd
Floor but the notices were sent on premises no. 490A and 498A and,
hence, could not be served. The management had sent notice on
wrong address deliberately though it was aware that he was residing
in premises no. 499A as that number was given by management to
police while registering FIR against him.
It is correct that the address of the claim is mentioned
as 2nd Floor, 499A in FIR. It is also correct that the management had
sent letter dated 21.05.2016 Ex. MW1/64 to the claimant asking
LIR No. 2928/17. 21/27
him to join back but that notice was sent on premises no, 490A,
Pandav Nagar. The said address was not of the claimant and, hence,
the letter is not supporting the plea of Ld. ARM that the
management had sent him notice/letter dated 21.05.2016 to join
back. Two notices both dated 23.05.2016 are on the file as Ex. MW
1/65 and Ex. MW1/66 but none of them was sent to the claimant.
The addresses reveal that they were sent to Deputy Labour
Commissioner and SHO P.S. Rajinder Nagar. The management had
sent claimant letter dated 27.05.2016 Ex. MW1/69 on premises no.
490A, Pandav Nagar, New Delhi in which it is mentioned that he
had refused to accept the previous letter dated 21.05.2016. It is
further mentioned that if he did not accept the letter, it would be
presumed that he was not willing to resume duty. That letter was put
to the claimant in crossexamination and he denied the suggestion
that he had refused to receive the letter dated 27.05.2016. He
voluntarily stated that he was residing on the 2nd Floor and he did
not know if someone had refused to receive the same. Volunteered
portion of his statement shows that he used to reside on the 2 nd Floor
of premises No. 498A. Perusal of notice dated 27.05.2016 also
shows that the same was sent on the same address but it was
returned undelivered with the report of refusal. The claimant has
explanation why he refused to take delivery that notice.
LIR No. 2928/17. 22/27
16. It is the case of the claimant himself that he had filed a
case before the Authority under Minimum Wages Act. He admitted
that the statement of claim filed before that authority was Ex. WW
1/M38. That case was filed on 23.05.2016 by not mentioning that
his service was terminated on 20.05.2016. Had his service been
terminated, he would have definitely mention that fact in that case.
The management had filed WS dated 17.08.2016 Ex.
MW1/39 before the Authority under Minimum Wages Act
mentioning in para no. 8 that the claimant may join it at any time.
The claimant did not make any averment in rejoinder that he was
ready to join back duty.
The management had filed WS Ex. WW1/M42 before
the Conciliation Officer mentioning in para no. 4 that it had still not
terminated his service. Even after receipt of copy of WS, the
claimant did not move application before the Conciliation Officer
that he was ready to join back duty.
17. It held by Hon'ble High Court of Delhi in 'M/s. Trina
Engineering Co. Pvt. Ltd. Vs. The Secretary (Labour) & Others
LLR 2006 Page 51 Delhi' that restatement of a workman even
without back wages will not be tenable when the management had
not refused duties as alleged by him who was repeatedly called back
to resume duties but failed to do so despite that the offer for
LIR No. 2928/17. 23/27
resumption of duty which was also made before Conciliation Officer
by the management.
It was held by Hon'ble High Court of Delhi in 'Tejpal
Vs. Gopal Narain and Sons and Another LLR 2006 Page 1142
Delhi' that the labour court had rightly declined to grant relief to a
workman alleging wrongful termination but not reporting for duty as
offered to him.
The Bombay High Court held in 'Sonal Garments Vs.
Trimbak Shankar Karve LLR 2003 Page 5 Bombay' that if the
workman himself started absenting from duty and did not accept the
offer of the management to resme duty despite several letters and
substantial offers made in the WS and also before the court, he is not
entitled to either restatement or back wages.
It was held by Bombay High Court in 'Raju Shankar
Pujari Vs. Chamboor Warehouse Co. & Another LLR 2003 Page
1150 Bombay' that a workman cannot reap the benefit of his own
fault when he fails to respond the offer of the employer to join
duties, more particularly to such offer was reiterated before the
Conciliation Officer and the Labour Court.
It was held by Bombay High Court in 'Competition
Printing Press Vs. Shriut Jaiparkash Singh & Another LLR 2001
Page 1150 Bombay' that if the workman himself started absenting
from duty and did not accept the offer of the management to resume
LIR No. 2928/17. 24/27
the same despite different letters and substantive offers made in WS,
he is not entitled to any relief.
It was held by Bombay High Court in 'M/s. Purafil
Engineers Pune Vs. Sheikh Anwar Abdul Rehman in LLR 2000
Page 268 Bombay' that the object of the labour laws is not meant to
harass the employers. But to get injustice undone. This machinery
cannot be exploited to extract mere money from the employers in an
unjust way. It is very clear from the conduct of the workman that he
is not interested in reinstatement when offered in 1992, he will not
be entitled to get any relief.
It was held by Punjab & Haryana High Court in
'Mukesh Khanna Vs. Chandigarh Administration, Chandigarh
and Another LLR 2000 Page 168 Punjab & Haryana' that the
workman who challenged his termination was not interested in his
job but wanted to make money without doing any work and hence
he is not entitled to seek any relief in as much as the provisions of
Industrial Disputes Act are meant to help the needy. These are not to
be invoked to help a person who is greedy.
It was held by Bombay High Court in 'New India
Coop. Bank Ltd. Vs. Shankar B. Bangera in LLR 2007 Bombay
Page 149' that abandonment of service has been rightly presumed
when the employee was repeatedly informed through notices for
resumption of duty but he had failed to do so.
LIR No. 2928/17. 25/27
It was held by Delhi High Court in 'Parshuram Shah
Vs. Govt. of NCT of Delhi & Another in LLR 2008 Page 256
Delhi' that the workman was offered service during conciliation
proceedings. The management witness was not cross examined
regarding the offer made during Conciliation proceedings. The stand
of the respondentmanagement that the workman had abandoned his
job voluntarily remained unrebutted.
It was held by Bombay High Court in 'M/s. N.R.K. House Vs. P.V. Tommy and Another in LLR 2009 Page 2 Bombay' that sufficient material on reord showed that the petitioner employer did not terminate the services of the workman. Having regard to the finding that there is no termination and the workman had voluntarily stayed away from employment, he is not entitled to back wages.
18. It is correct that management had got registered FIR against claimant and his brother u/s 380 IPC but police has still not taken any action against them. They have still not been summoned for was investigation. They have not been arrested. Non taking of any action by police against claimant even after elapse of 18 months from the registration of FIR shows that police is doubting the veracity of the version of the management regarding theft. Moreover act of theft is a misconduct for which domestic inquiry is must LIR No. 2928/17. 26/27 before removing workman from his service. It is the admitted case of the management that it had conducted enquiry against clsaimant for that miconduct but is not relying upon enquiry report. So, registration of FIR u/s 380 IPC against claimant is of no consequence in this case.
19. In view of above discussion, facts, circumstances and the law enunciated above, it is held that claimant had himself left the job on 20.05.2016 by remaining absent unauthorizedly and that his service was not terminated by the management. Both these issues are decided in favour of the management and against claimant.
ISSUE NO. 320. Consequent to decision on issue Nos. 1 and 2, it is held that claimant is not entitled to any relief. Statement of claim is dismissed. Parties to bear their own costs. Reference is answered accordingly. Award is passed accordingly.
21. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication. File be consigned to Record Room.
Dictated & announced (UMED SINGH GREWAL) in the open Court on 21.03.2018. PILOT COURT/POLCXVII DWARKA COURTS, NEW DELHI LIR No. 2928/17. 27/27