Delhi District Court
) The Dy. Labour Commissioner (New Delhi ... vs Living Media (India) Ltd on 30 January, 2021
1
IN THE COURT OF Ms. VEENA RANI, PRESIDING OFFICER LABOUR
COURT ROUSE AVENUE COURTS , NEW DELHI
Industrial Dispute No. LIR4804/2016(New) & Old Id No:142/2014
INDUSTRIAL DISPUTE BETWEEN :
Sh. Hanumant Chand S/o Sh. Radhakrishna Chand,
Flat No:4150, Sector4A, Vasundhara, Ghaziabad
Uttar Pardesh201012 .....Workman
VERSUS
1.Management of Living Media (India) Ltd. India Today Group, 9K, Block, Connaught Circus, New Delhi110001
2. Living Media (India) Ltd.
India Today Group, FC8, Film City,
Sector16A, Noida201301 .....Management (s)
Date of Institution : 04042014
Date of Arguments : 28012021 (Through VC)
Date of Award : 30012021 ( Through Videoconferencing)
AWARD
1) The Dy. Labour Commissioner (New Delhi District), Government of NCT of
Delhi vide its order No.F.24(24)/DLC/NDD//2014/126, dated 01042014, referred an industrial dispute of present worker with the above mentioned management to the Labour Court with the following terms of reference: "Whether the services of Sh. Hanumant Chand S/o Sh. Radhakrishna Chand have been terminated illegally and/or unjustifiably by the management; and if yes, to what relief is he entitled and what directions are necessary in this respect ?"
VERSION OF THE CLAIMANT AS PER THE CLAIM:
2) The case of the workman as stated in the claim is that on 26031996 he was employed by the management as a Senior Librarian of Hindi India Today of Living LIR4804/2016, Sh. Hanumant Chand Vs. Living Media (India) Ltd 2 Media India Ltd. Group. He is having professional degree in Library Science and he did his B. Lib. Science from Delhi University and Post Graduation in Library Science from Krukshetra University. He also obtained a post Graduate Degee in Psychology from the University of Delhi.
3) It is averred by the workman that apart from doing his regular duties as Junior Librarian he has also been contributing , off and on to Hindi India Today in the form of sketches, data and articles and he has been regularly assisting the editorial colleagues in providing the inputs for the articles and the reports which have been regularly published in the magazine. It is stated by workman that he was promoted to the post of Senior Librarian and single handed managed his official work.
4) It is alleged by the workman that he was removed from the job without any rhyme and reason on 30112013. His last drawn salary was Rs.27614/ as on November, 2013 after the deduction of Provident Fund, VPF and other taxes. It is stated that in its hurry to remove the workman the management forgot to comply with even the elementary provisions of what they have termed, retrenchment'. It is stated by workman that nevertheless, the management sent another letter amending the earlier retrenchment with a new one effective from 21122013.
5) It is submitted by workman that he has unblemished record of serving with the management and his job was appreciated by his superiors for his sincerity and congenial behavior many times. He was denied benefits as per the Majithia Wage Boards. It is alleged by workman that his services was terminated by the management without complying with the provisions of law without conducting any enquiry and he was never given any charge sheet before dismissal of his services.
Hence, the workman filed the present statement of claim. Workman prayed for reinstatement of his services with full back wages and all other consequential benefits and allowances etc. VERSION OF THE MANAGEMENT AS PER THE WRITTEN STATEMENT LIR4804/2016, Sh. Hanumant Chand Vs. Living Media (India) Ltd 3
6) Management has filed its written statement and in its written statement management raised preliminary objections that this court has no territorial jurisdiction to entertain the claim of the workman as workman was posted at Noida office of the management. It is stated that workman does not falls within the category of a workman as per Industrial Disputes Act, 1947 as he was Senior Librarian in a supervisory with highly qualified degrees and was at independent position in the Library with the management. It is further stated that the services of the workman was retrenched from the Noida Office of the management and workman was also paid his full and final settlement at Noida Office as such this court has no territorial jurisdiction to entertain the present claim. It is submitted that due to advancement of technology and digitization the services of the workman become redundant, therefore, his services was retrenched and full and final amount was given to workman. It is stated that workman was paid three months notice pay, retrenchment compensation @15 days salary for each completed year of service in addition to unpaid salary, gratuity as per the provisions of the Payment of Gratuity Act, therefore, the present claim of the workman is not maintainable and liable to be dismissed. The management has denied all other allegations of the workman as alleged by him in the statement of claim. It is stated that the workman was getting his salary as per rules and laws. It is stated that workman was getting salary more than what he would have been entitled to as per the Majithia Wage Board. Management prayed for dismissal of the claim of the workman.
7) No rejoinder filed by the workman. From the pleadings of the parties the following issues were framed on 11012017: ISSUE No.1: Whether the claimant/workman is not a workman as defined u/s 2(s) of the Industrial Disputes Act 1947 as alleged by the management ? OPM ISSUE No.2: Whether this court has no territorial jurisdiction to entertain and try the present dispute as alleged by the management ? OPM LIR4804/2016, Sh. Hanumant Chand Vs. Living Media (India) Ltd 4 ISSUE No.3: Whether the services of the workman have been retrenched by the management after following the due process of law, if so its effect ? OPM ISSUE No.4: Whether the amount of retrenchment compensation was credited in the account of workman as claimed by the management, if so its effect ? OPM ISSUE No.5: Whether the services of the workman have been terminated by the management illegally and unjustifiably as claimed by the workman ? OPW ISSUE No.6 :Whether the workman is entitled to the relief claimed ? OPW ISSUE No.7: Relief.
EVIDENCE OF THE CAIMANT:
8) Workman has examined himself as WW1 and filed his evidence by way of affidavit which is exhibited as Ex.WW1/A. In his evidenciary affidavit the workman has reiterated the contents of the statement of claim. In his evidenciary affidavit the workman has relied upon and exhibited the documents which were exhibited as Ex.WW1/1 to Ex.WW1/7.
i) Appointment letter of workman is Ex.WW1/1.
ii) Letter of Confirmation of workman is Ex.WW1/2.
iii) Training certificate of workman is Ex. WW1/3.
iv) Promotion letter is Ex. WW1/4.
v) Certificate dt. 15122011 is Ex. WW1/5.
LIR4804/2016, Sh. Hanumant Chand Vs. Living Media (India) Ltd 5
vi) Removal letter of workman dt. 26112013 is Ex. WW1/6 and
vii) retrenchment letter dt. 02122012 is Ex.WW1/7.
(All original seen and returned at the time of recording of evidence of the workman). WW1/workman was also cross examined by the AR of the management.
9) No other witness was examined by workman and his authorized representative closed his evidence on 26022019.
EVIDENCE OF THE MANAGMENT :
10) On 11122019, the Management has examined Sh. Aimann Hasaney as MW1, who tendered his evidence by way of evidenciary affidavit which is Ex.MW1/A, which bears his signatures at point A and B. During his chief examination MW1 has exhibited the documents i.e. Ex.MW1/1 to Ex. Mw1/4, Ex. MW1/6 and Ex.
MW1/8. Court observation was made that document Ex. MW1/5 and Ex. MW1/7 are not mentioned in the affidavit.
11) No other witness was examined by management and evidence of the workman was closed on 25022020 on the statement given by AR of the management.
12) Written submissions of both the parties are already filed on record. I have heard the Authorized Representative of the Workman as well as of management and perused the file. My findings on the issues are as under: Issue No.1 : Whether the claimant/workman is not a workman as defined u/s 2(s) of the Industrial Disputes Act 1947 as alleged by the management ? OPM
13) As far as ISSUE No.1 is concerned. The case of the workman as stated in the claim is that on 26031996 he was employed by the management as a Senior Liberarian of Hindi India Today of Living Media India Ltd. Group. He is having LIR4804/2016, Sh. Hanumant Chand Vs. Living Media (India) Ltd 6 professional degree in Library Science and he did his B. Lib. Science from Delhi University and Post Graduation in Library Science from Krukshetra University. He also obtained a post Graduate Degee in Psychology from the University of Delhi. It is averred by the workman that apart from doing his regular duties as Junior Librarian he has also been contributing , off and on to Hindi India Today in the form of sketches, data and articles and he has been regularly assisting the editorial colleagues in providing the inputs for the articles and the reports which have been regularly published in the magazine. It is stated by workman that he was promoted to the post of Senior Librarian and single handed managed his official work.
14) The concept of workman is central to the concept of an industrial dispute as an industrial dispute can be raised either by a "workman" or an "employer." Since the Industrial Disputes Act, 1947 ("ID Act") is a piece of beneficial legislation, the courts have enlarged the scope and applicability of this Act by giving wide interpretation to the term "workman." Section 2(s) defines workman as any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work, for hire or reward, terms of employment be express or implied and includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of dispute.
15) In John Joseph Khokar vs. Bhadange B. S. & ors 1998 (1) LLJ 447 (Bom) it was held that in determining that whether a person is a workman or not the court has to principally see main or substantial work for which he is employed. Neither designation nor any incidental work done by him will get him outside the purview of this Act.
16) Similarly, in S.K. Maini Vs. M/s Carona Sahu Co. Ltd., (1994) 3 SCC 510 the Supreme Court held in paragraph 9 of the Report: LIR4804/2016, Sh. Hanumant Chand Vs. Living Media (India) Ltd 7 "After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties, it appears to us that whether or not an employee is a workman under Section 2(s) of the Industrial Disputes Act is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any straitjacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases. When an employee is employed to do the types of work enumerated in the definition of workman under Section 2(s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or commercial organizations quite a large number of employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it."
Thereafter, in the same paragraph, it was said: "... the designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the employee concerned and not some works incidentally done. In other words, what is, in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory works. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, LIR4804/2016, Sh. Hanumant Chand Vs. Living Media (India) Ltd 8 the employee will come within the purview of 'workman' as Section 2(s) of the Industrial Disputes Act."
17) The nature of the work of the claimant can be clealrly inferred from the "Performance Appraisal" Ex. MW1/2 which rated the claimantherein under the headings:
a) LIBRARY WORKS filing / maintaining news papers / magazines, Ref. Books, keep binding copy of ITH all editions
b) Stock verification of library
c) Holding Documents Indexing of ITH main issues and regional editions
d) Properly Checking disseminating ITH pdf editions Scanning and making PDF of pixes
e) Contributing to ITH Anniversary and spl edition
f) Proof reading work of ITH story pages providing information input to stories and poll diary items during election
g) sorting of ITH letters which come through email
18) The nature of the work done by the claimantherein predominantly relates to the maintaining of the records / books / indexing etc. which are manual works. There is noting in evidence to suggest that the claimantherein had any sort of administrative or managerial powers.
19) Thus the ISSUE No.2 is decided in favour of the workman and against the management.
Issue No.2: Whether this court has no territorial jurisdiction to entertain and try the present dispute as alleged by the management ? OPM LIR4804/2016, Sh. Hanumant Chand Vs. Living Media (India) Ltd 9
20) It is further stated that the services of the workman was retrenched from the Noida Office of the management and workman was also paid his full and final settlement at Noida Office as such this court has no territorial jurisdiction to entertain the present claim.
21) Perusal of the appointment letter (Ex.WW1/1) reveals the following opening paragraph:
"With reference to our letter of offer dated 20 March 1996 and your subsequent acceptance of it, you are hereby appointed to our organization in New Delhi with effect from 26th March, 1996 ......."
22) The appointment letter was issued by Sh. S.N. Chopra (Manager - Pers.
& Admn) on the letter head of "LIVING MEDIA INDIA LIMITED" with the address: "Hamilton House 1A Connaught Place New Delhi". The words "you are hereby appointed to our organization in New Delhi" sets the situs of employment at New Delhi. All the correspondence of the management with the workmanherein such as : Letter of Confirmation of workman is Ex.WW1/2.; Promotion letter is Ex. WW1/4. Even the "FINAL PAYMENT ADVICE CUMRECEIPT" issued to the workmanherein Removal letter of workman dt. 26112013 (Ex. WW1/6) and the retrenchment letter dt. 02122012 (Ex.WW1/7) mentions the address of New Delhi as the Regd. Office. The said retrenchment letters dt. 26112013 (Ex. WW1/6) and dt. 02122012 (Ex.WW1/7) are both signed by Sh. Pawan Kumar Sharma (General Manager- Human Resources) on the letter head of "INDIA TODAY GROUP". Moreover, the promotion letter dated 25.04.2011 signed by Sh. M.J. Akbar (Editorial Director) (Ex.MW1/8) was also on the letter head of the "INDIA TODAY GROUP" mentioning the address of New Delhi as the Regd. Office. This goes to say that the services of the workmanherein from appointment to promotion was directly regulated by the Delhi office of the management.
LIR4804/2016, Sh. Hanumant Chand Vs. Living Media (India) Ltd 10
23) The workmanherein has reiterated in his crossexamination:
"....... I worked at Noida office for 2 years. Vol. I worked for 16 years in Delhi office of the management..."
24) It seems pertinent to notice that provisions of the Industrial Disputes Act appear to be singularly silent on the issue of territorial jurisdiction. The Act does not deal either with the causes of action nor does it remotely indicate what factors will confer jurisdiction on the appropriate Government and equally upon the Tribunal or the Labour Court constituted thereunder. It seems equally wellsettled that the Code of Civil Procedure has not in terms been made applicable to the proceeding under the Act. Consequently the specific provisions of the Code pertaining to jurisdiction do not stricto sensu govern the issue. The finer nuances of the relevant Sections on the subject of jurisdiction of Civil Courts, therefore, do not call for a precise construction. Though this is so, it is equally elementary that even if the language of the specific Section of the Code is not attracted yet the general principles and the value of tests underlying the jurisdiction of Civil Courts are not entirely alien to the issue. This appears to be so both on principle and on binding precedent. The net result, therefore, seems to be that though the Sections of the Code on the point of jurisdiction are not applicable with the force of their technical rigour yet in their absence the broader general principles underlying them would undoubtedly be relevant. (see Paritosh Kumar Pal vs State Of Bihar And Ors. on 15 February, 1984 Equivalent citations: 1985 (33) BLJR 150)
25) The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts, which a plaintiff must prove in order to succeed. These are all those LIR4804/2016, Sh. Hanumant Chand Vs. Living Media (India) Ltd 11 essential facts without the proof of which the plaintiff must fail in his suit. (See Gurdit Singh v. Munsha Singh (1977) 1 SCC 791).
26) The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases of suing; a factual situation that entitles one person to obtain a remedy in court from another person. (See Black's Law Dictionary). In. Stroud's Judicial Dictionary a "cause of action" is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment. In "Words and Phrases" (4th Edn.) the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. (See Navinchandra N. Majithia v. State of Maharashtra and Ors. (2000) 7 SCC 640."
27) In Bikash Bhushan Ghosh and others v. Novartis India Ltd (2007) 5 SCC 591 the workmen of the managementtherein were transferred to Siwan (Bihar), Farrukhabad (U.P.) and Karimganj (Assam). The workmen raised industrial dispute in the State West of Bengal which entertained the said reference thereby referring the dispute for its adjudication to the Industrial Tribunal, West Bengal. The territorial jurisdiction of the tribunal at West Bengal was challenged which passed an award in favour of the workmen therein. The Hon'ble High Court held that that the Tribunal did not have jurisdiction. The matter reached the Apex Court and the Apex Court observed thus:
"Judged in that context also, a part of cause of action arose in Calcutta in respect whereof, the State of West Bengal was the appropriate government. It may be that in a given case, two States may have the requisite jurisdiction in terms of clause (c) of subsection (1) of Section LIR4804/2016, Sh. Hanumant Chand Vs. Living Media (India) Ltd 12 10 of the Industrial Disputes Act. Assuming that other State Governments had also jurisdiction, it would not mean that although a part of cause of action arose within the territory of the State of West Bengal, it would have no jurisdiction to make the reference."
28) In Bageshwar Maurya v. Management Naveen Projects Pvt. Ltd {165 (2009) DLT 12} the employee was posted in Rajasthan and his employment was controlled by the office situated at Delhi. The appointment letter had been issued from the Delhi office and the functioning of the workman was also controlled from the office at Delhi. It is in these facts that the Court found that a substantial part of the cause of action had arisen in Delhi and, therefore, Labour Courts in Delhi would have the jurisdiction to adjudicate the dispute and the Government of NCT would be the appropriate Government. In that case it was accordingly held by the Division Bench of the Hon'ble Delhi High Court :
"The company is conducting its business from Delhi. Thus the Government of NCT of Delhi will be the appropriate Government. Even assuming that a part of cause of action has also arisen in Rajasthan, as has been held by the Supreme Court in Bikash Bhushan Ghosh and others v. Novartis India Ltd., (2007) 5 SCC 591 the fact that other State Government has also jurisdiction would not mean that the state government within whose territory a part of cause of action arose would have no jurisdiction to make the reference."
29) In. M/s. Lipton Ltd. v. Their Employees {A.I.R. 1959 S.C. 676} the dispute arose between M/s. Lipton Limited, London having an office at Asaf Ali Road, New Delhi and its employees of the Delhi office, who had formed an Union Some of the employees were employed 'outside Delhi'. The Union raised an industrial dispute which was referred to the Industrial Tribunal, Delhi by the Delhi Government. The contention that the Delhi Government was not LIR4804/2016, Sh. Hanumant Chand Vs. Living Media (India) Ltd 13 competent to make the reference was disposed of by the Hon'ble Supreme Court in the following terms:
"It may be made clear, however, at this stage that one of the points taken before the Industrial Tribunal on behalf of the, Lipton Ltd. was that the Industrial Tribunal had no jurisdiction to make an award in respect of employees of the Delhi office who were employed outside the State of Delhi. This point of jurisdiction was decided against the Appellant and the Industrial Tribunal pointed out that all the workmen of the Delhi office, whether they worked in Delhi or not, received their salaries from the Delhi office; they were controlled from the Delhi office in the matter of leave, transfer, supervision etc. and therefore, the Delhi State Government was the appropriate Government within the meaning of Section 2 of the Industrial Disputes Act, 1947 relating to the dispute which arose between the Lipton Ltd. and the Union and under Section 18 of the said Act the award made by the Tribunal was binding on all persons employed in the Delhi office. The Appellate Tribunal upheld the decision of the Industrial Tribunal on this point and though this question of jurisdiction was raised in the appeals before us, it was not seriously pressed by the learned Attorney General. We are of the view that the industrial Tribunal had jurisdiction to adjudicate on the dispute between the Lipton Ltd. and its workmen of the Delhi office."
30) The point of jurisdiction is really concluded by the decision of the Supreme Court in M/s. Lipton Ltd. v. Their Employees {A.I.R. 1959 S.C. 676} where it has been ruled that the Government of the State within which controlling office / head office of a Company is situated is the appropriate Government for referring any dispute between that Company and its workmen who are paid their salary and controlled by that office, irrespective of the fact that those workers work at a place which is outside the limits of that State.
LIR4804/2016, Sh. Hanumant Chand Vs. Living Media (India) Ltd 14
31) The appointment letter was issued by Sh. S.N. Chopra (Manager - Pers.
& Admn) on the letter head of "LIVING MEDIA INDIA LIMITED" with the address: "Hamilton House 1A Connaught Place New Delhi". The words "you are hereby appointed to our organization in New Delhi" sets the situs of employment at New Delhi. All the correspondence of the management with the workmanherein such as : Letter of Confirmation of workman is Ex.WW1/2.; Promotion letter is Ex. WW1/4. Even the "FINAL PAYMENT ADVICE CUMRECEIPT" issued to the workmanherein Removal letter of workman dt. 26112013 (Ex. WW1/6) and the retrenchment letter dt. 02122012 (Ex.WW1/7) mentions the address of New Delhi as the Regd. Office. The said retrenchment letters dt. 26112013 (Ex. WW1/6) and dt. 02122012 (Ex.WW1/7) are both signed by Sh. Pawan Kumar Sharma (General Manager- Human Resources) on the letter head of "INDIA TODAY GROUP". Moreover, the promotion letter dated 25.04.2011 signed by Sh. M.J. Akbar (Editorial Director) (Ex.MW1/8) was also on the letter head of the "INDIA TODAY GROUP" mentioning the address of New Delhi as the Regd. Office. This goes to say that the services of the workmanherein from appointment to promotion was directly regulated by the Delhi office of the management.
32) In view of the facts of the present case the ISSUE No.2 is decided in favour of the workman and against the managementherein.
ISSUE No.3: Whether the services of the workman have been retrenched by the management after following the due process of law, if so its effect ? OPM ISSUE No.5: Whether the services of the workman have been terminated by the management illegally and unjustifiably as claimed by the workman ? OPW
33) The Issues No.3 & 5 are intricately connected and will be disposed of together.
LIR4804/2016, Sh. Hanumant Chand Vs. Living Media (India) Ltd 15
34) The case of the management that due to advancement of technology and digitization the services of the workman became redundant, therefore, his services was retrenched and full and final amount was given to workman. The workman was paid three months notice pay, retrenchment compensation @15 days salary for each completed year of service in addition to unpaid salary, gratuity as per the provisions of the Payment of Gratuity Act. The management issued "Notice of change in the condition of service" dated 02.12.2013 to intimate the workmanherein that his services were not required as the "utilization of the Library exceedingly gone down and as such your post as a Senior Librarian is redundant."
35) Statutorily, the expression 'retrenchment' is defined in Section 2(oo) and means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action. The use of the words 'for any reason whatsoever' in Section 2(oo) of the Industrial Disputes Act, 1947 purportedly accords a very wide interpretation to the meaning of 'retrenchment' so as to include any and every termination in its fold. However, the latter part of Section 2(oo) circumscribes the scope of the expression 'retrenchment' by carving out four exceptions thereto. These four exceptions are : (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation or (bb) termination of the service of the workman as a result of the nonrenewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or (c) termination of the service of a workman on the ground of continued illhealth.
36) In order to ascertain whether the termination of the services of the petitioner constitutes illegal retrenchment, it is first and foremost necessary to appreciate the meaning and scope of the expression 'retrenchment' as well as the LIR4804/2016, Sh. Hanumant Chand Vs. Living Media (India) Ltd 16 distinction between legal and illegal retrenchment. It connotes the discharge of surplus labour in a running or continuing industry for any reason whatsoever, otherwise than as a punishment by way of disciplinary action. The reasons behind the discharge of labour as surplusage in a running or continuing industry may be multifarious, viz. change in the economic policy of the industry, rationalisation in the industry, installation of a new labour saving machinery, etc.
37) It is noteworthy that the Industrial Disputes Act, 1947 does not impose an absolute embargo on retrenchment. What the Industrial Disputes Act, 1947 aims, in essence, is to protect the manner in which retrenchment is carried out by the management. In this regard, Section 25F, contained in Chapter VA of the said Act, assumes relevance as it lays down the conditions which the management must mandatorily comply with before retrenching a workman. The conditions stipulated in Section 25F of the Act are reproduced thus:
Section 25F. Conditions precedent to retrenchment of workmen No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and LIR4804/2016, Sh. Hanumant Chand Vs. Living Media (India) Ltd 17
(c) notice in the prescribed manner is served on the appropriate government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.
38) Implicit in Section 25F of the Industrial Disputes Act, 1947 is the distinction between legal retrenchment and illegal retrenchment. A retrenchment effected after due compliance with the mandatory conditions stipulated in Section 25F of the Industrial Disputes Act, 1947 constitutes legal retrenchment. Any retrenchment effected in derogation of any of the conditions stipulated in the said Section 25F constitutes illegal retrenchment. However, while retrenching a workman in accordance with Section 25F of the Industrial Disputes Act, 1947, it also needs to be ensured that the workman has rendered 240 days of continuous service preceding the date of his retrenchment.
39) The scope of the inquiry had to be confined within the parameters of the decision of Supreme Court in Workmen of Subond Tea Estate v. Outgoing Management of Subond Tea Estate & Ors. , wherein five propositions were laid down as follows :
i) that the management can retrench its employees only for proper reasons, which means that it must not be actuated by any motive of victimization or any unfair labour practice,
ii) that it is for the management to decide the strength of its labour forces, for the number of workmen required to carry out efficiently the work in his industrial undertaking must always be left to be determined by the management in its discretion,
iii) if the number of employees exceeded the reasonable and legitimate needs of the undertaking it is open to the management to retrench them, LIR4804/2016, Sh. Hanumant Chand Vs. Living Media (India) Ltd 18
iv) workmen may become surplus on the ground of rationalisation or economy reasonably or bona fide adopted by the management or on the ground of other industrial or trade reasons, and
v) the right to effect retrenchment cannot normally be challenged but when there is a dispute about the validity of retrenchment the impugned retrenchment must be shown as justified on proper reasons, i.e., that it was not capricious or without rhyme or reason.
40) In The Management Of M/S Jor Bagh vs Workmen {reported in 1997 (75) FLR 382} it was held:
"23. When the Labour Court in the instant case had already come to a conclusion that decision had been taken bona fide by the management, it could not go beyond that and thereafter ought to have confined itself about the legality of the retrenchment, since the policy was not subject matter of dispute. Moreover, questions falling under items 10 and 11 of the Schedule IV are such over which Labour Court would have no jurisdiction. Jurisdiction, if any, would have been that of the Tribunal by virtue of provisions of Section 7 of the Act.
24. Since the only ground, on which the Labour Court held that the retrenchment of the workmen to be illegal, namely, violation of Section 9A of the Act, which provision could not have been made applicable to the facts and circumstances of the case, in the absence of any reference and lack of jurisdiction, in view of the limited reference, which had been made, there is no other option left except to quash and set aside that part of the award made by the Labour Court. Labour Court rightly came to the conclusion that Section 25F had been duly complied with. It may also be noticed that during the course of arguments in this Court also, it was not challenged on behalf of the workmen that there has been no compliance of Section 25F. The entire stress had been on the question of serving a notice under Section LIR4804/2016, Sh. Hanumant Chand Vs. Living Media (India) Ltd 19 9A and for that the retrenchment as illegal. Since that was not a question on which reference was made or sought, the Labour Court was not required to go into that question. Having gone to such matters, it acted beyond its jurisdiction. It was only the question of legality of the retrenchment, which was the subject matter of reference, which as per the claims lodged by the workmen before the Labour Court was on grounds other than Section 9 A which points were held against the workmen by the Labour Court. The Labour Court came to the conclusion that there has been due compliance of Section 25F of the Act and Chapter VB was not applicable."
41) The workmanherein has not averred any malafide on part of the managementherein. In view of the facts averred and proved by the parties there seems to be no violation of the S.25F of the I.D. Act. A management can retrench its employees only for proper reasons, which means that it must not be actuated by any motive of victimization or any unfair labour practice. It is for the management to decide the strength of its labour forces, for the number of workmen required to carry out efficiently the work in his industrial undertaking must always be left to be determined by the management in its discretion. If the number of employees exceeded the reasonable and legitimate needs of the undertaking it is open to the management to retrench them, workmen may become surplus on the ground of rationalisation or economy reasonably or bona fide adopted by the management or on the ground of other industrial or trade reasons. The right to effect retrenchment cannot normally be challenged but when there is a dispute about the validity of retrenchment the impugned retrenchment must be shown as justified on proper reasons, i.e., that it was not capricious or without rhyme or reason.
42) Thus the ISSUE No.3 & 5 are decided against the workman and in favour of the management.
LIR4804/2016, Sh. Hanumant Chand Vs. Living Media (India) Ltd 20
43) However, the workmanherein is not without remedy and has the silverlining of S.25 G of the I.D. Act. This will be discussed under the heading of RELIEF herein below.
ISSUE No.4: Whether the amount of retrenchment compensation was credited in the account of workman as claimed by the management, if so its effect ? OPM
44) It is nowhere the case of the claimant that his salary was withheld by the management.
45) The management witness MW1 has deposed in paragraph no.5 of his affidavit of evidence (Ex.MW1/A) that the claimant's bank account was credited with the amount due to him towards three months notice pay, retrenchment compensation @15 days salary for each completed year in addition to unpaid salary, gratuity as per the provisions of the Gratuity Act.
46) Workman on the other hand has admitted in his crossexamination: "I have not placed on record my latest bank statement....... After deductions my last paid salary was around Rs.28000/.... At this stage, the witness is shown his affidavit Ex.WW1/A wherein he has referred his salary to be Rs.27,614/ as on November, 2013....."
47) The onus to prove this issue was on the management and it was for the workman to place his pass book to show that the amount was not credited in his bank account. However, the workmanherein had not placed on record his pass book.
48) Thus ISSUE No.4 is also decided against the workman and in favour of the management.
49) ISSUE No.6 :Whether the workman is entitled to the relief claimed ? OPW LIR4804/2016, Sh. Hanumant Chand Vs. Living Media (India) Ltd 21 ISSUE No.7: Relief.
50) As far as the Issues No. 6 & 7 are concerned the workman is entitled to the limited relief under S.25G & 25Hof the I.D. Act.
As per S.25G. of the I.D. Act. Procedure for retrenchment. Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.
According to 25H. Reemployment of retrenched workmen. Where any workmen are retrenched and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity [to the retrenched workmen who are citizens of India to offer themselves for reemployment, and such retrenched workmen] who offer themselves for reemployment shall have preference over other persons.
The claimantherein has deposed in his affidavit of evidence in paragraph No.11 that the management has proposed to set up and integrated "knowledge center"
where the new staff is to be recruited. The proposed knowledge center is to be designed to work as the "centralized library". The claimantherein is fully trained and highly qualified and can thus be an asset to the management again. The management has stated in its Written Statement that the Centralized Library was never established. Be that as it may. It is hoped that the management shall consider the reemployment of the claimantherein whenever the need arises and in that circumstance it shall be the statutory duty of the management to first ask LIR4804/2016, Sh. Hanumant Chand Vs. Living Media (India) Ltd 22 the claimantherein as per law. In view of the provisions of S.25G & 25H of the I.D. Act the directions to that effect are being passed accordingly.
The ISSUES No.6 & 7 disposed of in terms of the directions to the management that the management shall consider the reemployment of the claimantherein whenever the need arises and in that circumstance it shall be the statutory duty of the management to first ask the claimantherein as per law. In view of the provisions of S.25G & 25H of the I.D. Act the directions to that effect are being passed accordingly.
51) Reference is answered as per the relief granted. Matter Disposed of Accordingly. A copy of the order be uploaded on the website of RADC. A copy of the same be also delivered to both the parties as well as to the concerned Department through electronic mode or through Dak, if possible. File be consigned to Record Room.
52) Announced as per the advisory / orders of the Hon'ble High Court vide its order/letter No.R235/RG/DHC/2020 DATED 16052020 and the Amended Protocol Letter No:24/DJ/RADC. 2020 dated 07052020 of Ld. District & Sessions JudgeCumSpecial Judge (PCAct),CBI, Rouse Avenue District Courts, New Delhi.
Digitally signed by VEENA VEENA RANI Date:
Announced through Video Conferencing. RANI 2021.02.09 15:23:04 +0530 Dated:30012021 ( VEENA RANI ) Presiding Officer Labour Court Rouse Avenue Courts,New Delhi Judge Code : DL0271 LIR4804/2016, Sh. Hanumant Chand Vs. Living Media (India) Ltd 23 IN THE COURT OF Ms. VEENA RANI, PRESIDING OFFICER LABOUR COURT ROUSE AVENUE COURTS , NEW DELHI Industrial Dispute No. LIR4804/2016(New) & Old Id No:142/2014 INDUSTRIAL DISPUTE BETWEEN : Sh. Hanumant Chand .....Workman VERSUS Management of Living Media (India) Ltd, India etc .....Management (s) Date:30012021 Matter taken up through videoconferencing hosted by Reader of the court. Present :Sh. Janmesh Kumar, Authorized representation of workman Through VC.
Sh. Prem Singh, AR for management through VC.
Clarification done. Heard.
Vide my separate detailed Award dictated and announced, the claim of the claimant is decided with directions to the management that the management shall consider the reemployment of the claimantherein whenever the need arises and in that circumstance it shall be the statutory duty of the management to first ask the claimant herein as per law. In view of the provisions of S.25G & 25H of the I.D. Act the directions to that effect are being passed accordingly. A copy of the award be uploaded on the website of RADC. A copy of the same be also delivered to both the parties as well as to the concerned Department through electronic mode or through Dak, if possible. File be consigned to Record Room. Digitally signed by VEENA VEENA RANI RANI Date:
2021.02.09 Announced in the open court.
15:22:52 +0530
Dated: 30012021 ( VEENA RANI )
Presiding Officer Labour Court
Rouse Avenue Courts,New Delhi
Judge Code : DL0271
LIR4804/2016, Sh. Hanumant Chand Vs. Living Media (India) Ltd