Delhi District Court
Vide This Judgment vs Union Of India & on 22 November, 2022
IN THE COURT OF AJAY GOEL, PRESIDING OFFICER-06,
LABOUR COURT, ROUSE AVENUE DISTRICT COURT, D.D.U.
MARG, NEW DELHI.
LID No. 27/2020
Date of Institution 04.02.2020
Date of Award 22.11.2022
BETWEEN THE WORKWOMAN:
Sh. Munesh Pal, S/o Sh. Mohan Lal, Mob. No. 9891377759, aged
55 years, R/o F-113, Aman Vihar, Kirari Suleman Nagar, North-
West, Delhi-110086 C/o Santosh Singh, Advocate, Ch. No. L-8, K.
L. Sharma Block, Gate No. 2, Tis Hazari Courts, Delhi-110054.
VERSUS
THE MANAGEMENT OF:
M/s. Air Command Echo Cooling Pvt. Ltd. through its Proprietor
Sh. Tilak Raj Sharma, Pocket No. 30, C.S.C. 1, H-32, DDA
Market, Pockt-H, Sector-3, Rohini, Delhi-110085.
AWARD
1. Vide this judgment, I shall dispose off the present statement of claim
as filed by the workman directly in labour court under the provisions of
Industrial Dispute Act, 1947 (for short 'I.D. Act') against the
management.
2. Brief facts as stated by the workman in his statement of claim are
that workman had been in the continuous employment of management
w.e.f. 01.02.2017 at the post of All Rounder/Store-Keeper and his last
drawn wages were Rs. 12,000/- per month. It is further stated that
workman was not being provided any legal facilities and when same were
demanded, the management only provided ESI Coverage to the
workman. Thereafter workman demanded his various other legal
facilities from the management again and again which annoyed the
LID No. 27-20 1
management and thus management terminated the services of the
workman on 26.08.2018 illegally and arbitrarily and his earned wages
were also withheld. Thereafter, the workman sent a demand letter dated
26.07.2019 to the management through his union and despite service of
same, the management did not comply with same. It is averred that
thereafter, statement of claim was filed by workman before conciliation
officer but due to adamant attitude of management, the conciliation failed
and failure report dated 30.10.2019 was given in the proceedings. Hence,
present statement of claim was filed before the court.
3. Vide order dated 16.03.2021, the Ld. Predecessor of this court has
imposed cost of Rs. 25,000/- upon management for not filing WS despite
grant of time. Later on, written statement was filed by management and it
was taken on record, however cost was not paid.
4. In the written statement, it has been stated that services of workman
were never terminated and rather, he is guilty of unauthorised
absenteeism w.e.f. 23.08.2018. It is stated that real fact is that workman
purchased an Air Conditioner for a sum of Rs. 36,500/- from the
management on 21.05.2018 and had sum of Rs. 20,000/- only in cash
against invoice No. 182 am he promised to pay balance amount as soon
as possible and thereafter, he started absenting w.e.f. 23.08.2018 from his
duties with an intention not to pay the balance amount and later on, he
submitted his resignation and asked to settled his accounts. It is further
stated that management has to recover balance amount of AC that is why
it had written letters to the workman and demanded their balance amount
and in his reply to said letters, the workman stated that he had already
paid the balance amount in installments without any proof of same. It
was stated that management has to recover balance amount of Rs.
16500/- of AC plus one month notice pay from workman because at the
time of joining, the workman from his own hands had given in writing to
management that if he leaves the employment without any information
then he will pay one month pay to the management. The other contents of
claim were denied and it was prayed that claim of workman be dismissed.
LID No. 27-20 2
5. The Ld. Predecessor of this court vide its order dated 23.03.2021,
has clarified that if the management fails to comply with the order with
regard to cost, the written statement shall not be considered. Thereafter,
management neither appeared nor paid the cost, hence they were
proceeded ex-parte vide order dated 31.05.2022.
6. In ex-parte workman's evidence, workman produced himself in
witness box as WW-1 who tendered his evidence by way of affidavit and
relied upon some documents as detailed in affidavit. Thereafter, W.E. was
closed and matter was posted for ex-parte final arguments.
7. I have heard the arguments and perused the record. My findings are
as under:
8. It is the case of claimant that workman had been in the continuous
employment of management w.e.f. 01.02.2017 at the post of All
Rounder/Store-Keeper and his last drawn wages were Rs. 12,000/- per
month. It is further pleaded that workman was not being provided any
legal facilities and when same were demanded, the management only
provided ESI Coverage to the workman. Thereafter workman demanded
his various other legal facilities from the management again and again
which annoyed the management and thus management terminated the
services of the workman on 26.08.2018 illegally and arbitrarily and his
earned wages were also withheld. It is also the case of workman that he
sent a demand letter dated 26.07.2019 to the management through his
union and despite service of same, the management did not comply with
same. It is pleaded that thereafter, statement of claim was filed by
workman before conciliation officer but due to adamant attitude of
management, the conciliation failed and failure report dated 30.10.2019
was given in the proceedings.
9. As far as evidence of workman is concerned, he has filed his
evidence by way of affidavit and also relied upon some documents in
support of his case. The copy of ESIC is proved as Ex. WW-1/1. Ex.
WW-1/1 shows the name of insured person as of workman alongwith his
other particulars. The name of management is also found mentioned
LID No. 27-20 3
therein as employer alongwith its address. On the basis of Ex. WW-1/1,
there is no doubt that there was relationship of employer and employee
between workman and management.
10. The demand letter has been proved as Ex. WW-1/2 alongwith its
postal receipt which is Ex. WW-1/3. The demand letter shows that it was
issued to proprietor of management and it also bears the address of
management and the postal receipt also bears the similar contents. Thus,
it is clear that by way of demand letter, the workman had raised his
legitimate demands, however, despite service of demand letter, the
management did not pay any heed to the same.
11. Further Ex. WW-1/4 is the failure report issued by Office of Joint
Labour Commissioner wherein it has been specifically mentioned that
"management was called in this office to attend the conciliation
proceedings and submitting their proposal for settlement to
resolve the said dispute. The management neither appeared on
any date nor filed any written statement. Therefore, the matter
could not be resolved and finally the proceedings were concluded
on 07.10.2019 ". This shows that management adopted adamant attitude
and even did not bother to participate in conciliation proceeding.
12. Though written statement was filed by management thereby pleading
its defence, however, same was taken on record subject to cost and said
cost has never been paid by the management and thus as discussed above,
the same cannot be considered in terms of order of my Ld. Predecessor.
13. All these documents have been duly proved on record as per law and
there is no rebuttal to the same. These documents are sufficient to held
that workman was the employee of management.
14. The management has not contested the present case by leading
evidence in support of their case and during trial, they did not appear
before the court to defend case and thus they, were proceeded ex-parte.
15. So management has chosen to remain ex-parte in the matter and
there is no reason for this court to disbelieve the version of workman for
want of any contrary evidence from other side. In these circumstances,
LID No. 27-20 4
the claim of claimant has remained unrebutted and unchallenged and
there is no reason to discard the testimony of claimant.
16. From discussion of above evidence, it is proved and established that
workman was working with management and his services have been
terminated illegally by the management.
17. Relief :- In view of the findings of the court on issues, it is held that
the workman is entitled to reliefs against the management.
18. As far as relief part is concerned, the claimant/workman has made a
prayer in statement of claim that he is unemployed since the date of
termination of his services and as such the management be directed to
reinstate him in service with full back wages including benefits of
continuity of service and all other consequential benefits.
19. However, it has to be kept in mind that workman has not placed on
record any document as to what efforts he had made to get other job on
his being unemployed and he must have done some work for his survival
and it cannot be said that he is unemployed since the date of termination
and thus, he is not entitled to back wages.
20. 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 the compensation in lieu of reinstatement
would be a better option.
21. 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."
22. Similar views were expressed by the Hon'ble Delhi High Court
in case titled as Indian Hydraulic Industries Pvt. Ltd Vs Krishan
Devi and Bhagwati Devi & Ors. ILR (2007) I Delhi 219 wherein it
was held by the court that " even if the termination of a person is
LID No. 27-20 5
held illegal, Labour Court is not supposed to direct reinstatement
along with full back wages and the relief can be moulded
according to the facts and circumstances of each case and the
Labour Court can allow compensation to the workman instead of
reinstatement and back wages."
23. Further, since much time has elapsed since date of termination of
services of the claimant, it cannot be presumed that he would remain idle
for such a long period.
24. It has to be kept in mind that the claimant has not stated about what
efforts he had made to secure the alternate employment after the alleged
termination. [2011 (131) FLR 24], the Hon'ble Bombay High Court
stated in the case that no evidence led by the respondent to show that they
made any efforts to secure employment during pendency of the litigation- respondents not entitled to any back wages.
25. In 2021 LLR 1040, the Hon'ble Supreme court of India also stated in para 'C' that workmen is not entitled to relief of back wages if he has not pleaded that he was not gainfully employed after his dismissal and has not proved his version by leading cogent and convincing evidence.
26. The workman has not proved that he was not gainfully employed.
Simple statement 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. Therefore, keeping in view all these facts and also keeping in view of the aforesaid law point, this court deems it appropriate to grant a lump sum compensation to the workmen in lieu of his reinstatement. Accordingly, considering his salary, this court grants a lump sum compensation of Rs.70,000/- (Rupees Seventy Thousand only) to the claimant /work man in lieu of his reinstatement and all other consequential benefits. The amount of compensation shall be paid to the workman by the management within one month from the date when this award becomes enforceable failing which the amount shall carry an interest @ 9% p.a. from the date it becomes due till the time it is LID No. 27-20 6 realized.
27. With these observations the statement of claim of the workman filed under the provisions of the Industrial Disputes Act is disposed off. Reference is answered and disposed off accordingly.
28. 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.
Digitally
signed by
AJAY AJAY GOEL
Pronounced in open court Date:
on 22.11.2022
GOEL 2022.11.23
14:52:05
+0530
(AJAY GOEL)
PRESIDING OFFICER LABOUR COURT-06/
ROUSE AVENUE COURT, NEW DELHI.
LID No. 27-20 7