Delhi District Court
Through vs Sh. Ankur Jain on 12 July, 2022
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
PRESIDING OFFICER, LABOUR COURT-IX
ROUSE AVENUE COURTS COMPLEX, NEW DELHI
LIR No. 1295/18 CNR No. DLCT13-002043-2018
Sh. Ravi Kumar
S/o Sh. Suresh Kumar
Mobile No. 9654421475
R/o A-944, Gautampuri Phase-I
Badarpur, New Delhi-110044
Through:
Delhi Plumber Allied Industrial Works Union
(Regd. 3899)
1801/9, Govindpuri Extn., Main Road
Kalkaji, New Delhi-110019 ......Workman
Versus
1. Sh. Ankur Jain
M/s. Jain Studios Limited
Jain Studios Campus
Scindia Villa, Ring Road,
Sarojini Nagar, New Delhi-110023
2. Sh. Ankur Jain
M/s. NSTPL-Noida Software Technology Park Ltd.
Jain Studios Campus
Scindia Villa, Ring Road
Sarojini Nagar, New Delhi-110023 ......Management
LIR No. 1295/18
Ravi Kumar v. M/s. Jain Studios Ltd. Page 1 of 26
Date of Institution : 04.06.2018
Date of Award reserved on : 12.07.2022
Date of Award : 12.07.2022
REFERENCE U/SEC. 10(1) (C) AND 12(5) OF INDUSTRIAL
DISPUTE ACT, 1947 WITH GOVT. OF NCT OF DELHI,
LABOUR DEPARTMENT, NOTIFICATION NO.
F.1/31/616/ESTT./2008/7458 DATED 3rd MARCH 2009
AWAR D
BRIEF FACTS AND REASONS FOR DECISION :-
1. Vide this Award the present reference petition referred by the Joint Labour Commissioner, District (SouthWest), Government of the National Capital Territory of Delhi shall be disposed which was referred by appropriate Government/Office of Labour Commissioner arising between the parties.
2. The present statement of claim is filed by the workman. It is submitted by the workman that from 01.01.1999 he was working at the post of 'Rider' on monthly salary of Rs.8,065/- per month to the satisfaction of the management. Management had got LIR No. 1295/18 Ravi Kumar v. M/s. Jain Studios Ltd. Page 2 of 26 signed blank papers from the workman at the time of appointment. Copy of which was not given to the workman. He was not allowed legal facilities which are appointment letter, attendance card, leave book, overtime, bonus, travelling allowance and salary was not paid regularly. When the workman had demanded the legal facilities from the management and earned wages from 01.04.2016 to 16.10.2016 then the management had got signed blank papers from the workman as full and final settlement on 17.10.2016. The management illegally terminated the service of the workman on 17.10.2016. Complaint of which was also given before Labour Commissioner where the management had refused to take workman back on service. The written demand letter was sent to workman through union on 11.02.2017 which was not replied. It is submitted at para no. 8 of the statement of claim and para no. 9 of evidence by way of affidavit Ex.WW1/A that the workman is unemployed despite the best efforts since 17.10.2016 the date of his illegal termination. Accordingly workman has prayed that he may be granted reinstatement with complete back wages with all consequential benefits.
3. The management no. 1 has filed written statement in which it has submitted that management no. 1 has since been LIR No. 1295/18 Ravi Kumar v. M/s. Jain Studios Ltd. Page 3 of 26 closed on January 2018. It is submitted that workman is absenting from his duty without any prior approval or intimation from 17.10.2016. The management had tried workman to call back on duty which had become infructuous due to adamant attitude of workman correspondence dated 20.10.2016 and 02.11.2016 were made with the workman in this regard. He was never interested in continuing the service and want to extract illegal money. Due to huge business and financial losses the management was forced to shut down its establishment in the month of January 2018. It is submitted that the workman was habitual absentee. It is denied that both the respondents used to carry same business dependent on each other. It is submitted that they are separate legal entities and separately registered under Companies Act. It is denied that the management no. 1 did not issue any notice to the workman. It is denied that management no. 1 had not taken approval of the Government and not provided seniority list to the workman. Other averments of the workman are denied and it is prayed that claim of the workman may be dismissed.
4. An application was moved on behalf of management no. 2 on 13.05.2019 wherein it has pleaded that Corporate Insolvency Resolution process is undergoing before Hon'ble NCLT vide order LIR No. 1295/18 Ravi Kumar v. M/s. Jain Studios Ltd. Page 4 of 26 dated 08.02.2019 vide which moratorium was extended in the matter. It is submitted that management no. 2 has no relationship with the workman in the nature of employer and employee. It is prayed that present proceeding may be rejected and in the alternative kept in abeyance in view of proceedings are pending before Hon'ble NCLT. Order of Hon'ble NCLT dated 08.02.2019 is available on record. Vide para no. 11 moratorium in terms of Sec. 14 of said Code was declared and the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any Court of law, Tribunal, Arbitration panel or other authority shall come under moratorium. The order in CP No. IV-1344 (PB/2018) from Hon'ble NCLT dated 08.02.2019 specifically directed and held at para no. 11 the moratorium whereby no proceeding can be continued against management no. 2 in the present proceeding. Further, the document Ex.WW1/4 filed by the workman shows that he was receiving salary from management no. 1 only and that his principle employer was management no. 1. The workman has claimed relief of reinstatement with back wages and therefore the relief is claimed against the management no. 1 only and management no. 2 is only performa party. In such event no relief can be granted against management no. 2 for which workman has LIR No. 1295/18 Ravi Kumar v. M/s. Jain Studios Ltd. Page 5 of 26 approached the Hon'ble NCLT if he has any grievance against management no. 2. Hence in this Award no relief is granted against management no. 2.
5. The AR for both management have appeared on 11.04.2019 and on 13.05.2019. The management was proceeded ex-parte on 31.07.2019 and defence was struck off. However the exparte order was set aside vide order dated 22.01.2020 and written statement is filed by the management no. 1 was taken on record. The management was again proceeded ex-parte on 02.02.2021. The AR for management has appeared and joined the proceedings on 25.03.2021 submitting that it has sent E-mail to discharge him from this case as management is not contacting him since last many days. Hence matter was listed for ex-parte workman's evidence.
6. On the pleadings of the parties and averments made following issues are framed in terms of reference on 22.01.2020 which are reproduced hereasunder:
1. Whether the services of workman were terminated illegally and/or unjustifiably by the management and if so, to what consequential relief is the workman entitled for? OPW LIR No. 1295/18 Ravi Kumar v. M/s. Jain Studios Ltd. Page 6 of 26
2. Whether the workman himself was guilty of unauthorized absenteeism without any prior permission/intimation from management no. 1? OPM-1
3. Relief.
7. WW1 was examined ex-parte in evidence on 25.03.2021 as sole witness. The documents relied upon by WW1 are Ex.WW1/1 to Ex.WW1/4. Ex-parte evidence was closed vide separate statement of workman on 25.03.2021.
8. Ex-parte final arguments are heard and record perused.
8.1 AR for workman has filed and relied on following citations:
(i) Bank of Baroda v. Ghemarbhai Harjibhai Rabari 2005 (10) SCC 792
2. Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED) & Ors. 2013 (10) SCC 324
3. Hindustan Tin Works Pvt. Ltd. v. Employees of Hindustan Tin Works 1979 AIR 75
9. The issue-wise findings are as follows:-
10. ISSUE NO. 1 & 2 LIR No. 1295/18 Ravi Kumar v. M/s. Jain Studios Ltd. Page 7 of 261. Whether the services of workman were terminated illegally and/or unjustifiably by the management and if so, to what consequential relief is the workman entitled for? OPW AND
2. Whether the workman himself was guilty of unauthorized absenteeism without any prior permission/intimation from management no. 1? OPM-1
10.1 The burden to prove present issue no. 1 is on the workman and of issue no. 2 is on the management. The WW1 has deposed as sole witness and tendered his evidence by way of affidavit Ex.WW1/A. Since the workman has prayed for reinstatement for this necessary consideration is that he should have worked atleast 240 days continuously in the year beginning backward from the last day from which the alleged termination has been claimed. The workman has filed Ex.WW1/4 the salary slip with bank statement. The annexed document with the said exhibit at serial no. 5 is the register with employee detail for the month of June 2015 mentions name of workman as Sh. Ravi Kumar which shows that workman has employed with the management in the month of June 2015. The salary slip for the month of August 2000 is Ex.WW1/4. The statement of account of management no. 1 for the period 01.12.2015 to 30.07.2016 mentions name of the workman with his mobile number about expenses incurred by him LIR No. 1295/18 Ravi Kumar v. M/s. Jain Studios Ltd. Page 8 of 26 towards mobile phone recharge. The date of termination is allegedly 17.10.2016. The expenses incurred are also shown on 30.07.2016. The management has pleaded in preliminary submissions that management no. 1 has closed due to heavy business and financial losses in the month of January 2018. The salary slip of the workman Ex.WW1/4 proves that the workman was employed with management no. 1 and not employed with management no. 2. Management no. 1 has not denied the date of appointment of workman since 01.01.1999 which is claimed as matter of record.
10.2 Further, the workman has relied on citation titled Bank of Baroda v. Ghemarbhai Harjibhai Rabari 2005 (10) SCC 792 at para no. 8 and 10 in that workman has prima facie established that he has worked with the management and management has not even rebut such evidence then the question of workman further proving his case did not arise. One fact is to be seen that the workman was allegedly terminated on 17.10.2016 and he sent demand letter to the management on 11.02.2017 which is after about 04 months. Workman has rendered his service allegedly for a period of about 18 years and which is quite a long service. The management no. 1 has mentioned about its closure which remains LIR No. 1295/18 Ravi Kumar v. M/s. Jain Studios Ltd. Page 9 of 26 unproved on record. Mere pleading that it has closed is not sufficient when the management no. 1 is a limited partnership firm as per its written statement. The closure of partnership firm must be shown on record which management no. 1 has failed to show. There must be accounting of assets and liability at the time of closure which have not been filed. Necessary certificate of closure to the concerned Registrar is not filed if the partnership was registered. In case of closure of undertaking requirement of Sec. 25FFA Industrial Disputes Act, 1947 needs to be complied with and if the said provision of law is not applicable then it has to be specifically pleaded and proved on record. This has not been done by the management no. 1. In these circumstances it is found that the workman has worked continuously for 240 days in a year since the last date of his termination dated 17.10.2016. Therefore he is entitled to protection u/Sec. 25F Industrial Disputes Act, 1947.
10.3 The management has submitted that workman has abandoned his job for this purpose the management must prove on record that it has issued necessary notice to the workman to rejoin the service and on failure thereof necessary inquiry must have been conducted. The self serving statement of the management cannot serve the purpose either in pleadings or in evidence without LIR No. 1295/18 Ravi Kumar v. M/s. Jain Studios Ltd. Page 10 of 26 supporting documents and in absence of any admission in this regard by the workman. In fact management has not filed any documentary evidence in this regard and due to intermittent appearance the managements are proceeded ex-parte many times in this case. In these circumstances of the case the management has failed to prove the abandonment of service by the workman.
10.4 It is settled law that abandonment of service was to be proved by the management and the burden of proof of abandonment lies on the management. This was also law laid down in the case titled Eagle Hunter Solutions Limited. v. Sh. Prem Chand (Supra) 2018 LLR 1171 in W.P.(C) 9786/2018 & CM Nos. 38128-29/2018, dated 17.09.2018 at para no. 8, 9 and 10 wherein it is laid down that the onus to prove abandonment of job is on the employer. The employer must produce positive evidence of abandonment for example written communication with the workman to join his duties. The sole statement in evidence of abandonment which is controverted by the workman are not suffice to make out the case of abandonment. Animus to abandon must be shown to have exists before the date of case of abandonment is made out. The relevant para are reproduced hereasunder :
8. Operating, as I am, within the limited peripheries of certiorari LIR No. 1295/18 Ravi Kumar v. M/s. Jain Studios Ltd. Page 11 of 26 jurisdiction, I do not find any manifest error in the impugned award of the Labour Court, as would warrant interference by me under Article 226 of the Constitution of India. At the cost of reiteration, it may be mentioned that the position, in law, is well settled that the onus to prove abandonment is on the employer. Mere filing of affidavit alleging that the workman had abandoned the services is entirely insufficient to discharge the said onus. That apart, the affidavit filed by MW-
1, too, only referred to the respondent having been offered employment by the petitioner, during the course of the conciliation proceedings. Even on that aspect, MW-1, the only witness of the respondent, was, at best, ambivalent, confessing that it was not possible for him to state whether any written communication had been served on the respondent or not. He neither produced any record, to support his plea of abandonment, as set up by the petitioner, nor sought time to produce any such record.
9. That apart, it was necessary for the petitioner to succeed in its case, to prove that the respondent had abandoned his services on 8th February, 2012. Even it was to be shown that thereafter, during conciliation proceedings, an offer of employment was extended to the respondent, that would not have sufficed to establish a case of abandonment, by the respondent, of his services, on 8th February, 2012.
10. In view thereof, I had pointedly queried, of learned counsel for the petitioner, as to whether there was any material to indicate that the respondent had abandoned his services on 8th February, 2012. His only reliance, in this connection, is to the deposition of the respondent, during cross-examination on 16th August, 2016, in which he states that he "left the management on 01.03.2012". This sole statement, in my view, cannot suffice to make out a case of "abandonment" by the respondent, of the services of the petitioner especially as, in his cross- examination before the Labour Court, the respondent expressed his willingness to re-join the services of the LIR No. 1295/18 Ravi Kumar v. M/s. Jain Studios Ltd. Page 12 of 26 petitioner even at that stage.
Animus to abandon, it is well-settled, must necessarily be shown to exist, before a case of abandonment can be said to have been made out. No evidence, of any such animus on the part of the Respondent No.1, is forthcoming in the present case.
10.5 The workman has deposed that he remained unemployed during this period. Despite his best efforts to search for job. It was held in case titled Sachiv Krishi Upaj Mandi Samiti, Sanawad v. Mahendra Kumar S/o Mangilal Tanwarao, 2004 LLR 405 = 2003 SCC OnLine MP 720 : (2004) 101 FLR 176 (MP) : (2004) 4 LLJ (Supp) (NOC 307) 953 : 2004 LLR 405 that if the termination of an employee is based on no inquiry, no charge and not by way of punishment, then it becomes a case of illegal retrenchment. In such case, the workman will be entitled to reinstatement with full back wages. The relevant para is reproduced hereasunder:
4. Parties led evidence. It was, however, concluded on facts and evidence that respondent has worked continuously for more than 240 days in one calendar year, that no charge-
sheet or any inquiry was held prior to his termination, that no retrenchment compensation was paid prior to impugned termination, and that it was a case of dismissal without any basis or charge.
5. Learned Counsel for the petitioner was unable to point out to me any mistake of law or fact in the impugned award, in so far as the aforementioned findings of facts were concerned.
LIR No. 1295/18 Ravi Kumar v. M/s. Jain Studios Ltd. Page 13 of 26These findings are the only findings which need to be rendered on facts and evidence. Indeed, in order to attract the protection of labour laws, these are the only issues which need to be examined on facts on both sides. As observed supra, if the termination of an employee is based on no inquiry, no charge and not by way of punishment, then it becomes a case of illegal retrenchment. If an employee has worked for more then 240 days in one calendar year then he is entitled to have the protection of Labour Laws provided the employer is an Industry subjected to Labour Laws.
6. Learned Counsel for the petitioner contended that no order for payment of back wages could be given. I do not agree to this submission, as it has no merit. Firstly, once the termination is held to be bad in law then directions to pay back wages is a natural consequence and has to follow. It is only when the employer (as in this case petitioner) is able to show and prove that terminated employee was working for gains even after termination, the order for payment of back wages will not be passed.
7.7. The burden to prove that employee was working for gains after termination lies on the employer. In the absence of any evidence not tendered, the direction to pay back wages has to follow. It is, however, necessary for the employee to state on oath that he remained unemployed after the termination of his service. In this case, the petitioner failed to lead any evidence on this issue against the respondent and on the other hand, the respondent did say that he remained unemployed. In view of this, the direction to pay back wages cannot be said to be illegal or unreasonable once it was held that termination is bad in law.
10.6 More than 6 years have passed from the date of alleged retrenchment of the workman. However Hon'ble Supreme Court LIR No. 1295/18 Ravi Kumar v. M/s. Jain Studios Ltd. Page 14 of 26 of India has held in case titled as Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Ors. in Civil Appeal No. 6767 of 2013 at para no. 33 and 34 which is reproduced hereasunder:
33. The propositions which can be culled out from the aforementioned judgments are:
i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
ii) 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.
iii) 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 averments 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 LIR No. 1295/18 Ravi Kumar v. M/s. Jain Studios Ltd. Page 15 of 26 lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
iv) 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 of full back wages.
v) 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 victimizing the employee or workman, then the concerned Court or Tribunal 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 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 be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give 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.
vi) In a number of cases, the superior Courts have interfered LIR No. 1295/18 Ravi Kumar v. M/s. Jain Studios Ltd. Page 16 of 26 with the award of the primary adjudicatory authority on the premise that finalization 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-à-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 fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).
vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of of judgment is also against the very concept of reinstatement of an employee/workman.
34. Reverting to the case in hand, we find that the management's decision to terminate the appellant's service was preceded by her suspension albeit without any rhyme or reason and even though the Division Bench of the High Court declared that she will be deemed to have rejoined her duty on 14.3.2007 and entitled to consequential benefits, the management neither allowed her to join the duty nor paid wages. Rather, after making a show of holding inquiry, the management terminated her service vide order dated LIR No. 1295/18 Ravi Kumar v. M/s. Jain Studios Ltd. Page 17 of 26 15.6.2007. The Tribunal found that action of the management to be wholly arbitrary and vitiated due to violation of the rules of natural justice. The Tribunal further found that the allegations levelled against the appellant were frivolous. The Tribunal also took cognizance of the statement made on behalf of the appellant that she was not gainfully employed anywhere and the fact that the management had not controverted the same and ordered her reinstatement with full back wages.
Accordingly issue no. 1 is decided in favour of workman and against the management and issue no. 2 is decided against the management and in favour of workman.
11. R E L I E F 11.1 The office of management no. 1 is at Sarojini Nagar, New Delhi which is admitted in the written statement of management no. 1. The number of employees employed by management no. 1 are less than 100 keeping in view Ex.WW1/4 with which documents are annexed showing name of employees. The management no. 1 had failed to prove that it has closed its business. The workman herein had worked with the management from 01.01.1999 till 17.10.2016 which is a period of about 17 years. The last drawn salary was Rs.8,065/- per month. The LIR No. 1295/18 Ravi Kumar v. M/s. Jain Studios Ltd. Page 18 of 26 management was limited proprietorship firm which does not have a big operational platform. The workman has filed statement of account of management no. 1 annexed with Ex.WW1/4 which shows debit and credit transactions were upto Rs.1,10,000/- only for the year August 2016. It was a small enterprise. In these circumstances of the case, it is desirable that a lump sum compensation amount will be suffice for the workman in this case. The relevant citation is reproduced hereasunder:
In the case titled Prem Chand v. Management of M/s The Joint Director (High Court of Delhi) Civil Writ Petition No. 950 of 2008 | 06-02-2008 (5) The learned Labour Court thereafter examined the question as to the nature of the relief to be granted to the workman. The power and jurisdiction of the Labour Court to grant appropriate relief in the event termination being set aside, for not following the provisions of Section 25-F of the Industrial disputes Act, is well recognized through a catena of judgments on this issue.
It has been repeatedly stated that reinstatement is not the rule. It may be useful at this juncture to set down a brief background of the trend of judicial pronouncements on this aspect. Till the years 1980-85, the general trend was of reinstatement in the event termination is found illegal. The power of Industrial tribunal to direct reinstatement was recognised in Western India Automobiles association Vs. Industrial Tribunal AIR 1949 FC 111. Exceptions to this rule are also recognised in various judgments and reinstatement can be validly denied for many reasons including, inter alia, the nature of job, the workman not being a regular worker or not recruited through employment exchange or other regularly prescribed mode of selection. Such exceptions were also noted by the Supreme court in the case of Haryana Tourism Corporation Ltd. Vs. LIR No. 1295/18 Ravi Kumar v. M/s. Jain Studios Ltd. Page 19 of 26 Fakir Chand and Ors. AIR 2003 SC 4465. To decide this matter, the Labour Court has examined a number of authorities, and in particular, the decision of this Court in Nehru Yuva kendra Sangathan Vs. Union of India, 2000 IV ad (Delhi) 709 wherein this Court had dealt with the question of reinstatement and back wages. It is noticed in paragraphs 27 and 28 thereof that although in the 1970s and 1980s, reinstatement with back wages was the norm in all cases where termination was found to be illegal, the trend of later decisions of the Supreme Court seems to suggest that now the award of compensation in lieu of reinstatement and back wages is the norm. This Court therefore held that;
"reinstatement is not the inevitable consequence of quashing an order of termination; compensation can be awarded in lieu of reinstatement and back wages. "
The learned Labour Court also adverted to the decision of the Supreme Court in m. L. Binjolkar Vs. State of Madhya Pradesh 2005 VI (SCC) 224, to the same effect where, in paragraph 7, the Supreme Court has referred to a number of earlier decisions of that Court and concluded that "
"the earlier view was that whenever there is interference with the order of termination or retirement, full back wages were the natural corollary. It has been laid down in the cases noted above that it would depend upon several factors and the court has to weigh the pros and cons of each case and to take a pragmatic view. . . . . . . . . . "
(6) THE same position has been reiterated by the Supreme Court in paragraph 56 of its decision in U. P. State Brasware Corporation Ltd. Vs. Uday Narain pandey 2006 1 (SCC)
479). Reference may also be made to a decision of a Division bench of this Court in Pramod Kumar and Anr. Vs. The Presiding Officer and Anr. 123 (2005) DLT 509 where also a plea taken by the petitioner that the learned single Judge ought to have directed reinstatement instead of merely awarding compensation to the workman, was considered only to be LIR No. 1295/18 Ravi Kumar v. M/s. Jain Studios Ltd. Page 20 of 26 rejected. It is in the light of these pronouncements that the learned Labour Court has looked at the circumstances of the petitioner's case. A reading of paragraphs 26 and 27 of the impugned award shows that in deciding to award compensation instead of reinstatement, while the learned Labour Court was conscious of the fact that compensation in lieu of reinstatement and back wages is now the norm, at the same time, it has also considered the fact that the petitioner had worked with the management on a part time basis for two hours on monthly wages of Rs. 500/-per month for about six years. The Labour Court has felt that since the petitioner was only a part time employee, working for only two hours in a day with the management, therefore instead of reinstatement, compensation would be a better alternative. It has therefore decided to award compensation of Rs. 20,000/- to be paid to the petitioner within one month of publication of the award failing which interest @ of 10% would be payable to the workman. According to the Labour Court, this amount would be sufficient to meet the ends of justice. A rough calculation will show that the Labour Court has in fact directed payment of compensation equivalent to 40 months of earnings. To put it differently, it has given him compensation amounting to the salary drawn over a period of three years, which is also more than half of his tenure with his employer. It is noteworthy that Supreme Court in the case of O. P. Bhandari Vs. Indian Tourism Development Corporation Ltd. (1986) 4 SCC 337 held that compensation equivalent to 3. 33 years' salary (including allowances) as admissible on the basis of last pay and allowances would be a reasonable amount to award in lieu of reinstatement. In that case, the Court has taken into consideration the fact that the corpus, if invested at prevailing rate of interest, will yield 50% of the annual salary and allowances and the workman would get 50% of what he would have earned by way of salary and allowances with four additional advantages:
(i)He will be getting this amount without working (ii)He can work somewhere else and can earn annually whatever he is worth over and above, getting 50% of the salary he would have LIR No. 1295/18 Ravi Kumar v. M/s. Jain Studios Ltd. Page 21 of 26 earned. (iii)If he had been reinstated, he would have earned the salary upto the date of superannuation (upto 55, 58 or 60 as the case may be) unless he died earlier. As against this, he would be getting the aforesaid 50% annually till he dies, regardless of his superannuation, after his demise, his heirs would keep getting it in perpetuity. (iv)The corpus of lump sum compensation would remain intact, in any event.
This was also reiterated in the case of Workmen Vs. Bharat Fritz Werner (P) Ltd. and Anr. (1990) 3 SCC 565. Thus, I do not find that the decision taken by the labour Court in this regard is in any way perverse or arbitrary nor do I feel that it has occasioned any failure of justice. A Writ Court is not exercising appellate jurisdiction and the scope for interference is very limited. Reference in this regard may also be had to the cases of Syed Yakoob Vs. K. S. Radhakrishnan AIR 1964 SC 477 where it was observed that;"there is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of appreciation of evidence cannot be reopened or questioned in writ proceedings. "
In the case of State Bank of Bikaner and Jaipur Vs. Om Prakash Sharma (2006) 5 SCC123, the Supreme Court held that the High Court cannot sit in appeal over the award of the Labour Court, but jurisdictional errors can be corrected while exercising power of judicial review. Similarly, in Apparel Export Promotion council Vs. A. K. Chopra (1999) 1 SCC 759 it was observed that"since the High Court does not sit as an appellate authority over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent for that of the departmental authorities. "
Furthermore, in the case of Govt. of A. P. And Others Vs. Mohd. Nasrullah Khan (2006) 2 SCC373 paragraph 11 states as LIR No. 1295/18 Ravi Kumar v. M/s. Jain Studios Ltd. Page 22 of 26 follows:"11. By now it is well established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an appellate authority. Its jurisdiction is circumscribed and confined to errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of Natural Justice. Judicial review is not akin to adjudication on merit by re-appreciating the evidence as an appellate authority. "
(7) Lastly Learned counsel for the petitioner has also sought to urge that his client is hopeful of getting some regular employment with the respondent. He has suggested that this Court keep this matter on board on the plea that pendency of this writ petition will assist his client in securing favourable consideration from the respondent in this regard. In conjunction with this suggestion, the petitioner has sought to link ground (c) of his writ petition, which has been reproduced above, to state that it was entirely within the powers of the respondent to recruit the petitioner in any 4th class post as part time employee without even the necessity for a regular or sanctioned post. I do not think such a plea can be of any avail to the petitioner. In my opinion the statute does not vest the Labour Court with any power to direct the employer to "adjust" the petitioner in any other Class IV employment, "as if he was only a part-time employee," as sought to be contended by petitioner's counsel, reinstatement can only be granted in the same employment and not in any other employment with the employer. The tactic of filing such a petition in this court, and then using the very fact of its pendency to create some sort of pressure on the respondent to give the petitioner further employment, has only to be deprecated. To my mind, it would be wholly unethical for this Court to lend itself to such tactics on the part of a litigant. (8) THE contention of the petitioner to the effect that since his client had only claimed reinstatement without any claim for back wages or compensation, therefore its decision to award compensation in lieu of reinstatement, demonstrates that the impugned award is perverse and occasioned a failure of justice, LIR No. 1295/18 Ravi Kumar v. M/s. Jain Studios Ltd. Page 23 of 26 since it did not have any jurisdiction to do so, is also devoid of merit. An examination of Section 10 (4) of the Industrial Disputes Act shows clearly that the Labour Court is required to confine its adjudication to the points of dispute referred and "matters incidental thereto". In this case the workman had applied directly to the Labour Court under Section 10 (4A) as amended vide Delhi Act 9 of 2003 which came into effect from 22. 8. 2003. This states as follows:
"(4A) Notwithstanding anything contained in Section 9c and this section, in the case of dispute falling within the scope of Section 2a, the individual workman concerned may, within twelve months from the date of communication to him of the order of discharge, dismissal, retrenchment or termination or the date of commencement of the Industrial Dispute (Delhi Amendment) Act, 2003, whichever, is later, apply in the prescribed manner, to the Labour Court or the Tribunal, as the case may be, for adjudication of the dispute and the Labour Court or tribunal, as the case may be, shall dispose of such application in the same manner as a dispute referred under sub-section (1). "
What is noteworthy is that in the case of any application moved to the Labour court under this provision, the Labour Court is enjoined to, "dispose off such application in the same manner as a dispute referred to in sub-section (1). " It follows therefore, that the Learned Labour Court was bound to dispose off this application in the same manner as any other dispute that might have been referred to it. From this, it can be concluded that the provisions of Section 10 (4) which apply to all other references and spells out the nature of the labour Court's jurisdiction, as well as the scope of its adjudicatory powers whilst disposing off such references, would be equally applicable while deciding an application made directly to the Labour Court under Section 10 (4a). To my mind, the expression "shall dispose of such application in the same manner", can only mean that while deciding this application, it will apply the same principles and shall have same powers as are available to the Labour Court and be subjected to the same restrictions by which Labour Court is LIR No. 1295/18 Ravi Kumar v. M/s. Jain Studios Ltd. Page 24 of 26 bound in case of references made to it in the ordinary course under Section 10.
(9) It is settled law that if the Labour Court is of the opinion that the award of said compensation would meet the ends of justice in a particular case, then keeping in mind the relevant facts and circumstances of that case, the labour Court has the power to award compensation even though there may be no claim for back wages or reinstatement made by the workman. This power is derived from Section 11-A of Industrial Disputes Act which deals with power of labour Courts, Tribunals and National Tribunals to give appropriate relief in case of Discharge or Dismissal of workmen. In Anglo-American Direct Tea Trading company Ltd. Vs. Workmen of Nahortoli Tea Estate (1961) 2 LLJ 625 (SC), the supreme Court through Justice Wanchoo held that Section 11-A vests the industrial adjudicators with the discretionary jurisdiction to give 'such other relief to the workmen. . . . . in lieu of discharge or dismissal as the circumstances of the case may require,' where for some valid reason it considers that reinstatement with or without conditions will not be fair or proper. Compensation in such a case is the solatium for unjustified and premature termination of employment. In this case also, the same has been done. The relief of compensation is clearly incidental to any adjudication that goes into the question of unlawful termination of service of an employee. Even going by the general principles of Industrial Adjudication, it would be incorrect to conclude that compensation in lieu of reinstatement is not incidental to a dispute relating to dismissal or discharge of a workman. As already stated above, it is unquestionable that even after finding that termination is illegal, the Labour Court has the power to decline reinstatement if it is of the view that compensation will suffice.
Keeping in view the above facts compensation for a sum of Rs.3,00,000/- is awarded to the workman herein from the management no. 1 on which simple interest is awarded @5% p.a. LIR No. 1295/18 Ravi Kumar v. M/s. Jain Studios Ltd. Page 25 of 26 to the workman from the date of publication of this Award till its realization.
Reference stands answered in the aforesaid terms. A copy of Award be sent to the Competent Authority/appropriate Government i.e. Joint/Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication which thereafter become enforceable u/Sec. 17A of Industrial Dispute Act, 1947. Award is passed accordingly.
File be consigned to record room after due compliance.
Announced in the open Court
on 12.07.2022. JOGINDER Digitally signed by
JOGINDER PRAKASH
PRAKASH NAHAR
Date: 2022.07.13
NAHAR 13:05:30 +0530
(JOGINDER PRAKASH NAHAR)
PRESIDING OFFICER LABOUR COURT-IX
ROUSE AVENUE COURT COMPLEX /NEW DELHI
LIR No. 1295/18
Ravi Kumar v. M/s. Jain Studios Ltd. Page 26 of 26