Delhi District Court
Through vs (4) M/S. Rise Elevators on 9 January, 2023
IN THE COURT OF GORAKH NATH PANDEY,
ADDL. DISTRICT & SESSIONS JUDGE/
PRESIDING OFFICER : LABOUR COURT - IV,
ROUSE AVENUE COURTS : NEW DELHI.
LIR No.682/2021
CNR No.DLCT130010802021
IN THE MATTER OF :
Sh. Virender Mishra,
S/o Sh. Ramakant Mishra,
R/o WZ-1522, Nangalraya,
New Delhi - 110046.
Through
Shramjivi Vikas Union (Regd.No.3494),
Branch Office, C-152, Gali No.36,
Mahavir Enclave Part - 3,
New Delhi - 110059.
....WORKMAN/CLAIMANT
VERSUS
(1) M/s. Real Elevators Ltd.,
A-21/A, Phase - 2, Industrial Area,
Mayapuri, New Delhi - 110064.
(2) Unit of M/s. Real Elevators Ltd.,
D-1, Matiyala Extn., near Jagdish Tails,
Matiyala, New Delhi - 110075.
(3) Office/Residence: 331 Guru CGHS Ltd.,
Plot No.2, Sector - 6, Dwarka,
New Delhi - 110075.
(4) M/s. Rise Elevators,
E-24, Plot No.6, Shivlok Apartment,
Sector - 6, Dwarka,
New Delhi - 110075.
Through its Director Sh. Shkeel Ahmed.
....MANAGEMENT
LIR No.682/2021
Virender Mishra v. M/s. Real Elevators & Ors.
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Date of institution of the case : 16.04.2018
Date of final arguments : 09.01.2023
Date of passing the Award : 09.01.2023
Decision : Award Passed.
AWAR D
1. Vide this Award, I shall decide the Industrial Dispute
which was referred by Joint Labour Commissioner, South West
District on a complaint filed by the aforesaid claimant/workman
and other five workmen against the Management, vide reference
no. F.24(4)/18/SWD/Lab./1452-1457 dated 12.02.2018, u/s 10(1)
(c) and 12 (5) of The Industrial Disputes Act, 1947, wherein the
following reference was to be answered :-
"Whether services of Sh. Ram Asare (Age - 34 Yrs Mob.
9821513884) S/o Sh. Sukhram and 5 Ors., whose details are given
at Annexure - A have been terminated illegally and/or
unjustifiably by the management and if so, to what relief are they
entitled and what directions are necessary in this respect?"
2. Notice of the reference was issued to the workmen.
Pursuant thereto, the workmen appeared and filed their common
statement of claim. Vide order dated 04.03.2021, the claims of all
the workmen were segregated. The workman Virender Sharma in
the statement of claim claimed that he joined the management in
June, 2013 at the post of 'Skilled Fitterman' and his last drawn
salary was Rs.11,830/- per month; he worked honestly,
efficiently, punctually and regularly and has never given any
chance of complaint to his superior or any official of the
management.
It is further stated in the statement of claim that
there were four units of the companies and management used to
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take work from the workman in all the companies whenever the
Director/Manager ordered to work in the company. Further, on
06.10.2016 when the workman reached to the factory gate of
Real Elevators Ltd, at A-21-A, Phase - II in Industrial Area Maya
Puri, New Delhi, all of sudden, the Police alongwith other Govt.
officials came to the factory and ordered all the workmen to
come out of the company and thereafter, sealed the company.
Thereafter, Director of the company reached there at about 12:40
pm and approached the Maya Puri PS after noting down the
workmen present sitting at the gate of the company. The Director
of the company told every workman to come at the Factory gate
everyday for attendance and also told them that every workmen
will get salary and the seal will be opened very soon. The
Director used to take the attendance at the gate of the factory but
did not give any directions or any notice to the workmen.
It has further been stated in the statement of claim
that the management used to pay the earned wages to the
workman from 7 to 10th of every month. On 08.11.2016, the
Govt. announced the policy of demonetization. The Director of
the company assured the workman and other co-workmen while
taking attendance that because of the demonetization the
company is not getting the amount from the bank and as such the
wages can not be given to them. The management did not pay the
earned wages for the month of October, November and
December, 2016 to the workman and the management also did
not take the attendance on the gate from 11.01.2017.
It has further been stated in the statement of claim
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that the workman and other co-workmen visited another unit of
the management i.e. Real Elevators Ltd. at D-1, Matiyala Extn.,
near Jagdish Tails, Matiyala, New Delhi - 110059 and demanded
their wages from the Director; the Director assured the workmen
that they will be paid the wages from October, 2016 when the
company seal was to be de-sealed but even after October, 2016,
the management did not pay the earned wages and denied for the
payment of wages for the further period.
It is further stated in the statement of claim that the
workman approached the Union and filed a complaint in the
Labour Office, the Labour Inspector called the Director but
instead of coming to the Labour Office, the Director requested
the Labour Inspector that as and when the company is de-sealed,
the management will pay the earned wages to the workman.
Further, on 18.01.2017 at about 01:10 pm, the company was de-
sealed and one of the directors Sh. Parmanand Yadav directed the
workman and other co-workmen that the management will open
the company after clearing the company and told them to come in
Pooja on 26.01.17 and the work will start from 27.1.17 but when
the workman and other co-workmen reached to the factory
premises, the factory premises was locked and none from the
management was present.
It is further stated in the statement of claim that the
Labour Inspector called the management on 20.01.17 and
25.01.2017 and also pasted a notice on the company gate but the
management did not participate in the proceedings before the
Labour Inspector.
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It is further stated in the statement of claim that the
management appeared before the Labour Inspector and refused to
take the workman on job.
The workman claimed that the management is still
running the business of fabrication of Vertical Fabricators Ltd..
D-1 Matiyala Extn., in the name of Expedite Technologies, M/s.
Rise Elevators, M/s, Real Elevators at D-1, Matiyala Extn. New
Delhi - 110059. Further, the management did not take old
workmen on their usual job and as such the management
terminated the services of the workman illegally on 27.01.2017.
The management also appeared before the Labour Inspector on
09.02.2017 but due to the adamant attitude of the management,
no compromise has taken place.
The workman also issued legal demand notice to the
management for his reinstatement and payment of back wages
which was not replied nor the services of the workman was
reinstated. The workman has also filed his claim petition before
the Conciliation Officer but none appeared from the management
and hence the conciliation proceedings resulted in failure and
hence the present reference.
The workman claims to be unemployed from the
date of his illegal termination. As claimed, the termination of
service of the workman is illegal and unjustified as the
management violated the provisions of I.D. Act. It is prayed that
an award be passed in favour of workman and against
management directing the management to reinstate him with
consequential benefits including full back wages and continuity
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in service.
3. Notice of the statement of claim was issued to the
management and management had filed its written statement.
The management in its written statement admitted that the
workman joined the management on 01.09.2014 but denied that
his services were illegally terminated. It is further submitted in
the written statement that the workman left the services of the
management on his own. It is further stated in the written
statement that the management has asked the workman to join
the duties at Matiyala but the workman has not joined his
services. It is further submitted in the written statement that the
management has paid all dues to the workman and nothing is due
against the management. The management denied the averments
of the statement of claim and prayed to dismiss the claim
petition.
4. Vide order dated 25.02.2019, the following issues
were framed in view of pleadings of the parties :-
ISSUES:
(1) Whether there existed a relationship of employer and
employee between the management and workman - Virender
Sharma, Sujeet and Dharmender?OPW
(2) 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
(3) Whether the workmen had deliberately abandoned
the job by declining to join back their duties after they were
called upon to do so when the management after getting its
premises sealed had shifted its office to other place after five
months of the closure?OPM
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(4) Relief.
The case was, thereafter, fixed for evidence of
workman.
5. In order to discharge the onus and prove the issues,
the workman had appeared as witness and filed in evidence, his
examination in chief by way of affidavit Ex.WW1/A wherein he
had reiterated the contents of his statement of claim on solemn
affirmation. Besides this, he had also placed on record the
following documents :-
(i) Ex.WW1/1 and Ex.WW1/2: Complaints dated
16.01.17 and 16.02.2017 made to the Assistant Labour
Commissioner against the management;
(ii) Ex.WW1/3 to Ex.WW1/7: Demand notice dated
27.02.2017 issued to the management and its postal receipts; and
(iii) Ex.WW1/8: Statement of claim filed before the
Conciliation Officer.
The workman was not cross-examined by the
management and hence vide order dated 27.09.2022, the right of
the management to cross-examine the workman was closed.
The workman's evidence was thereafter closed.
6. In rebuttal, the management examined Sh. Shakeel
Ahmed, Director of Management as MW1 who filed his affidavit
by way of evidence as Ex.MW1/A reiterating the factual contents
of the written statement of management on solemn affirmation.
7. I have heard the final arguments addressed by the
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AR for the parties and gone through the relevant materials lying
on the record. My issue wise findings are as under:-
Issue No.1:
Whether there existed a relationship of employer and employee
between the management and workman - Virender Sharma,
Sujeet and Dharmender?OPW
This issue is not pertaining to the workman namely
Virender Mishra herein. The issue is disposed off accordingly.
Issue No.2 & 3:
(2) 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
(3) Whether the workmen had deliberately abandoned
the job by declining to join back their duties after they were
called upon to do so when the management after getting its
premises sealed had shifted its office to other place after five
months of the closure?OPM
The onus to prove the Issue No.2 was on the
workman whereas Issue No.3 was to be proved by the
management. Both these issues shall be decided together being
interrelated.
8. The statement of claim filed by the workman along-
with defence of management has been mentioned at the outset.
The workman claimed that he joined the management in June,
2013 as 'Fitterman (Skilled)' and his last drawn wages were
Rs.11830/- p.m.; his service was illegally terminated on
27.01.2017 without paying his legal dues.
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The employment of the workman is not denied in the
written statement filed by the management. The management
claimed that the service of the workman was never terminated
rather he himself left the job; the management asked the
workman to join the duties but he did not resume his duties; the
management had also paid all the dues to the workman. The
workman in the claim as well as in his affidavit by way of
evidence Ex.WW1/A reiterated his case regarding his claim and
also proved the relevant documents including the legal demand
notice issued to the management before filing of this case and
ESI card. The testimony and the documents relied upon by the
workman are not disputed and remained unimpeached and
uncontroverted as the cross-examination of the workman was not
conducted by the management.
The management's witness MW1 deposed regarding
the contention in the written statement vide his affidavit
Ex.MW1/A. He was crossexamined and deposed that:
"I do not remember if any appointment letter was issued to the
workman or not. The management used to keep the record of
attendance and wages of the workman. No attendance register
has been filed on record. It is wrong to suggest that I have filed
the attendance record as Virender Mishra was with the
management from June, 2013 to 06.10.2016 regularly.
No letter was issued to the workman for calling on duty after
management was reopened. No letter was given by the workman
to show that he was unwilling to work with the management.
The workman did not ask in writing to settle his account at any
time nor the management offered to settle the account of the
workman in writing. I have not filed any document or details
regarding the employment of the workman as deposed in my
affidavit. I and my wife are running factory at Matiyala which is
a partnership firm namely Real Elevator. It is wrong to suggest
that I was running four units at a time and I was the MD in all
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the firms. (Vol. I was not MD of any firm or company)".
The MW1 in his crossexamination admits that no
letter was issued to the workman for calling him on duty after
management was reopened. It is further admitted by him that the
workman did not give any letter to show that he was unwilling to
work with the management. He further admits that the workman
did not ask in writing to settle his account at any time nor the
management offered to settle the account of the workman in
writing. There is no document placed on record by the
management to show that the workman was issued any notice to
join his duties at the shifted place when he remained absent or
subsequent enquiry was made against him. It is reiterated that the
claimant examined himself as WW1 and deposed regarding the
claim. The witness/workman has also proved the relevant
documents as above said. The documents relied upon by the
claimant alongwith testimony remained
uncontroverted/unimpeached as the management did not cross-
examine the workman. There is nothing in the testimony of MW1
to controvert the claim of the workman. The contention and
claim of the workman appears to be coherent. As noted, no
inquiry has been made by the management in the matter as well.
9. It is settled that where an employer has failed to
make an enquiry before dismissal or discharge of a workman, it
is open for him to justify the action before the labour court by
leading evidence before it. It is relevant to refer the observations
of Hon'ble Supreme Court in Civil Appeal No.142/2021 titled
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Virender Mishra v. M/s. Real Elevators & Ors.
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State of Uttarakahand and Ors. vs. Smt. Sureshwati decided on
20.01.2021. As held in the relevant para no.14 -
14. This Court has in a catena of decisions held that where an
employer has failed to make an enquiry before dismissal or
discharge of a workman, it is open for him to justify the action
before the Labour Court by leading evidence before it. The entire
matter would be open before the tribunal, which would have the
jurisdiction to satisfy itself on the evidence adduced by the
parties whether the dismissal or discharge was justified. A four
Judge Bench of this Court in Workmen of the Motipur Sugar
Factory Private Ltd. v. Motipur Sugar Factory (AIR 1965 SC
1803) held that:
" 11. It is now well settled by a number of decisions of this Court
that where an employer has failed to make an enquiry before
dismissing or discharging a workman it is open to him to justify
the action before the tribunal by leading all relevant evidence
before it. In such a case the employer would not have the benefit
which he had in cases where domestic enquiries have been held.
The entire matter would be open before the tribunal which will
have jurisdiction not only to go into the limited questions open to
a tribunal where domestic enquiry has been properly held (see
Indian Iron & Steel Co. v. Workmen (AIR 1958 SC 130) but also
to satisfy itself on the facts adduced before it by the employer
whether the dismissal or discharge was justified. We may in this
connection refer to Sana Musa Sugar Works (P) Limited v.
Shobrati Khan (AIR 1959 SC 923), Phulbari Tea Estate v.
Workmen (AIR 1959 SC 1111) and Punjab National Bank
Limited v. Workmen (AIR 1960 SC 160). These three cases were
further considered by this Court in Bharat Sugar Mills Limited
v. Jai Singh (1962) 3 SCR, 684 and reference was also made to
the decision of the Labour Appellate Tribunal in Ram Swarath
Sinha v. Belsund Sugar Co. (1954) LAC 697 . It was pointed out
that "the important effect of omission to hold an enquiry was
merely this: that the tribunal would not have to consider only
whether there was a prima facie case but would decide for itself
on the evidence adduced whether the charges have really been
made out". It is true that three of these cases, except Phulbari Tea
Estate case, were on applications under Section 23 of the
Industrial Disputes Act, 1947. But in principle we see no
difference whether the matter comes before the tribunal for
approval under Section 33 or on a reference under Section 10 of
the Industrial Disputes Act, 1947. In either case if the enquiry is
defective or if no enquiry has been held as required by Standing
Orders, the entire case would be open before the tribunal and the
employer would have to justify on facts as well that its order of
dismissal or discharge was proper. Phulbari Tea Estate
LIR No.682/2021
Virender Mishra v. M/s. Real Elevators & Ors.
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case was on a reference under Section 10, and the same principle
was applied there also, the only difference being that in that case
there was an inquiry though it was defective. A defective
enquiry in our opinion stands on the same footing as no enquiry
and in either case the tribunal would have jurisdiction to go into
the facts and the employer would have to satisfy the tribunal that
on facts the order of dismissal or discharge was proper."
Subsequently in Delhi Cloth and General Mills Co. v.
Ludh Budh Singh (1972) 1 SCC 595 this Court held that :
"(1) If no domestic enquiry had been held by the management, or
if the management makes it clear that it does not rely upon any
domestic enquiry that may have been held by it, it is entitled to
straightway adduce evidence before the Tribunal justifying its
action. The Tribunal is bound to consider that evidence so
adduced before it, on merits, and give a decision thereon. In such
a case, it is not necessary for the Tribunal to consider the validity
of the domestic enquiry as the employer himself does not rely on
it.
....
(3) When the management relies on the enquiry conducted by it, and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management, are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.
Reliance is also placed on the judgment of this Court in Workmen of Firestone Tyre & Rubber Co. of India (P) Ltd. v. The Management of Firestone Tyre & Rubber Co. of India (P) Ltd and Others. (1973) 1 SCC 813 wherein the broad principle regarding holding of the enquiry were spelt out as:
"32. From those decisions, the following principles broadly emerge:
"(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.LIR No.682/2021
Virender Mishra v. M/s. Real Elevators & Ors.
Page No.12/21(3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide. (4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct. (9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation. (10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, LIR No.682/2021 Virender Mishra v. M/s. Real Elevators & Ors.
Page No.13/21as held by this Court in Management of Panitole Tea Estate v. Workmens, (1971) 1 SCC 742 within the judicial decision of a Labour Court or Tribunal.
..........
40. Therefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under Section 11-A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case and hold that no misconduct is proved.
41. We are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference under Section 11-A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to re- appraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, Section 11-A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11-A."
It is reiterated that in this case no steps were taken by the management in respect of charge sheet and inquiry at all.
10. In view of the aforesaid discussions, the LIR No.682/2021 Virender Mishra v. M/s. Real Elevators & Ors.
Page No.14/21management herein has not been able to discharge its onus in support of contentions in the written statement. It is duly proved from the materials on record and the testimony of the witness/workman that the services of the claimant/workman was terminated illegally/unjustifiably by the management. The Issue no.2 is accordingly decided in favour of the workman and against the management whereas the Issue No.3 is decided against the management.
Issue No.4 "Relief"
11. The claimant herein has sought the relief of reinstatement in the service with full back wages along with the continuity of service and all the consequential benefits. The prayer of the workman is denied by the management claiming that he is not entitled for any relief. The term "reinstatement" has not been elucidated in the Industrial Disputes Act, 1947. The Shorter Oxford English Dictionary, Vol. II, 3rd Edition stated that, the word "reinstate" means to reinstall or reestablish (a person or thing in a place, station, condition etc.); to restore to its proper and original state; to reinstate afresh and the word "reinstatement means the action of reinstating; reestablishment.
"As per Black's Law Dictionary, 6th Edition, "reinstatement"
means 'to reinstall, to reestablish, to place again in a former state, condition, or office, to restore to a state or position from which the object or person had been removed'.
12. In the case titled as Tapash Kumar Paul Vs BSNL & LIR No.682/2021 Virender Mishra v. M/s. Real Elevators & Ors.
Page No.15/21Anr, and reported as of JT 2014 (7) SC 589, the Hon'ble Supreme Court has held that the court may either award the compensation or order for reinstatement in the cases which do not fall within the five categories as described by the Hon'ble Supreme Court in the aforesaid judgment. The relevant portion of this judgment is reproduced as under :
"It is no doubt true that a Court may pass an order substituting an order of reinstatement by awarding compensation but the same has to be based on justifiable grounds viz.(i) where the industry is closed; (ii) where the employee has superannuated or going to retire shortly and no period of service is left to his credit; (iii) where the workman has been rendered incapacitated to discharge the duties and cannot be reinstated and/or; (iv) when he has lost confidence of the Management to discharge duties. What is sought to be emphasized is that there may be appropriate case on facts which may justify substituting the order of reinstatement by award of compensation, but that has to be supported by some legal and justifiable reasons indicating why the order of reinstatement should be allowed to be substituted by award of compensation. In the instant matter, we are not satisfied that the appellant's case falls in to any of the categories referred to hereinbefore which would justify compensation in lieu of reinstatement. We thus find no justification for the High Court so as to interfere with the Award passed by the Tribunal which was affirmed even by the single Judge, but the Division Bench thought it appropriate to set aside the order of reinstatement without specifying any reasons whatsoever, as to why it substituted with compensation of a meager amount of Rs.20,000/ to the appellant."
13. Hon'ble Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya and Ors., (2013) 10 SCC 324 discussed the concept of reinstatement as under:
"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money..... The reinstatement of such an employee, which is preceded by a LIR No.682/2021 Virender Mishra v. M/s. Real Elevators & Ors.Page No.16/21
finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments." (emphasis supplied).
14. It is settled law that reinstatement and back wages are not automatic and it depends upon the facts and circumstances of each case. In Ashok Kumar Sharma Vs Oberoi Flight Services reported as AIR 2010 Supreme Court 502, Hon'ble Supreme Court while relying upon various judgments of the Hon'ble Supreme Court held that compensation in lieu of reinstatement and back wages would be appropriate. The relevant para of judgment is reproduced as under :
"8. In the case of Sita Ram v. Moti Lal Nehru Farmers Training Institute 2(2008 AIR SCW 2256) this Court considered the matter thus :
"2. JT 2008 (3) SC622.
"21. The question, which, however, falls for our consideration is as to whether the Labour Court was justified in awarding reinstatement of the appellants in service.
22. Keeping in view the period during which the services were rendered by the respondent (sic appellants); the fact that the respondent had stopped its operation of bee farming, and the sen/ices of the appellants were terminated in December 1996, we are of the opinion that it is not a fit case where the appellants could have been directed to be reinstated in service.LIR No.682/2021
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23. Indisputably, the Industrial Court, exercises a discretionary jurisdiction, but such discretion is required to be exercised judiciously. Relevant factors therefore were required to be taken into consideration; the nature of appointment, the period of appointment, the availability of the job, etc. should weigh with the court for determination of such an issue.
24. This Court in a large number of decisions opined that payment of adequate amount of compensation in place of a direction to be reinstated in service in cases of this nature would subserve the ends of justice. (See Jaipur Development Authority v. Ramsahai [(2006) 11 SCC 684] : (2006 AIR SCW 5963), M.P. Admn. v. Tribhuban [(2007) 9 SCC 748] : (2007 AIR SCW 2357) and Uttaranchal Forest Development Corpn. v. M.C. Joshi [(2007) 9 SCC 353] : (2007 AIR SCW 7305).
25. Having regard to the facts and circumstances of this case, we are of the opinion that payment of a sum of Rs. 1,00,000 to each of the appellants, would meet the ends of justice. This appeal is allowed to the aforementioned extent. In the facts and circumstances of this case, there shall be no order as to costs."
9. The afore-referred two decisions of this Court and few more decisions were considered by us in the case of Jagbir Singh v. Haryana State Agriculture Marketing Board3(2009 AIR SCW 4824) albeit in the context of retrenchment of a daily wager in violation of section 25F of Industrial Disputes Act who had worked for more than 240 days in a year and we observed thus :
3. JT 2009 (9) SCC 396."7.
It is true that earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention to the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice."
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Page No.18/21It is not necessary to multiply the decisions of this Court wherein award of compensation in lieu of reinstatement and back wages has been held to be adequate and in the interest of justice.
In light of the aforesaid legal position, the view of the High Court that monetary compensation in lieu of reinstatement of the workman would be proper cannot be said to be unjustified."
In case titled as Mohd. Shakir And Sunder Lal Jain Hospital 2010ILLJ245 (Del) High Court of Delhi, it was held that :
"Illegality of dismissal/termination from service of a workman did not in itself ipso facto result in his reinstatement. The long history of litigation and acrimony between the parties leading to trust deficit in this case was considered by the Labour Court and it had rightly concluded that reinstatement might not be appropriate remedy will justified award of compensation in lieu of the reinstatement of the workman."
Hon'ble Supreme Court in the matter of 'Rajasthan State Transport Corporation, Jaipur Vs Sri Phool Chand' in Civil Appeal No. 1756/2010 has reiterated that to be entitled for back wages during the pendency of proceedings, the employee should not be employed in any establishment during the pendency of such proceedings. Further if a worker had been employed during the pendency of such proceedings and had been receiving adequate remuneration, no back wages would be payable for the period of such pendency. It was further held that a worker cannot automatically be entitled to back wages and has no right to claim back wages purely on the basis that the dismissal order has been set aside. As held :
"In order to claim back wages, a worker is required to prove (by adducing evidence) that he was not gainfully employed anywhere after dismissal, and had no earnings to maintain himself and / or his family. An employer is required to prove that a worker was gainfully employed elsewhere - however the initial burden lies on the worker to substantiate his LIR No.682/2021 Virender Mishra v. M/s. Real Elevators & Ors.Page No.19/21
unemployment."
Further in 'Deepali Gundu Surwase Vs Kranti Junior Adhyapak Mahavidyalya (D.Ed) & Ors. reported as (2013) in SCC 324, Hon'ble Supreme Court held that in the case of wrongful termination of a worker, reinstatement with continuity of service and back wages was a normal rule. However, the payment of back wages has to be determined as per the facts and circumstances of his case and cannot be automatically granted on a order of reinstatement of the worker. The worker has to specifically raise the claim for back wages as well as present supporting evidence demonstrating his unemployment. This court also set out various factors for calculating the back wages, which include, among others.
(a) the length of service of a worker ;
(b) the nature of misconduct, if any, proved against worker ; and
(c) the financial condition of employer.
15. In the present case, the workman served the management for more than 3 years before his illegal termination on 27.01.2017. Since, the parties are litigating for about 4 years, the relationship of the workman with the management will not be cordial due to the rift and prolonged litigation. Further, the workman may not be considered sitting idle after his termination. Hence, in these circumstances, it would not be in the interest of justice and industrial piece to direct reinstatement and the ends of justice can be met by granting lump sum compensation. Considering the above facts, the statement of claim as filed by the workman is allowed and it is appropriate that management is directed to pay lumpsum compensation of Rs.40,000/- (Rs. Forty Thousand only) to the workman.
16. Management is directed to pay the said compensation within 30 days of publication of this award to the LIR No.682/2021 Virender Mishra v. M/s. Real Elevators & Ors.
Page No.20/21workman, failing which, the amount shall also be carrying an interest @ 8% per annum till the date of its realization.
17. Award is passed and reference is answered accordingly. Digitally signed copy of the award be sent to the Labour Commissioner for publication. The award be also sent to server.
18. File be consigned to Record Room. GORAKH Digitally signed by GORAKH NATH NATH PANDEY Date: 2023.01.12 PANDEY 15:28:12 +0530 Announced in the open (Gorakh Nath Pandey) Court on 09.01.2023 Addl. District & Sessions Judge Presiding Officer Labour Court- IV Rouse Avenue District Courts.
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