Delhi District Court
Id No.898/14 Mohan Kumar vs M/S Expectation Page No. 1 Out Of 11 on 20 January, 2015
IN THE COURT OF SH. SANJEEV KUMAR
ADDITIONAL DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER LABOUR COURT
KARKARDOOMA COURTS, DELHI
ID NO.898/14 ( Old ID No. 223/13)
Sh. Mohan Kumar S/o Sh. Ram Kewal
R/o. H No. E134, Harkesh Nagar, Okhla Tank,
New Delh20
Through: General Mazdoor Trade Union,
Opposite to Old Labour Office,
Balmukund Khand, Giri Nagar, Kalkaji,
New Delhi19.
Versus
M/s Expectation,
D158, Okhla PhaseI,
New Delhi20
Date of Institution : 27.09.2013
Date of argument : 13.01.2015
Date of Award :
20.01.2015
A W A R D
1. The Secretary (Labour), Govt. of NCT, Delhi vide order
ID No.898/14 Mohan Kumar Vs M/s Expectation Page No. 1 out of 11
No. F24 (442)/Lab./SD/2012/4255 dated 07.03.13 referred the present
industrial dispute between the parties for adjudication to the Labour
Court on the following terms of reference :
"Whether the services of Sh. Mohan Kumar S/o.
Sh. Ram Kewal have been terminated illegally
and/or unjustifiably by the management; if so, to
what relief is he entitled and what directions are
necessary in this respect?"
2. Notice of the reference was issued to workman and the
workman filed statement of claim. The brief facts of the case as
mentioned in the statement of claim are that the workman/claimant
was working with the management since 27.1.2001 on the post of
"Pressman" on the monthly salary of Rs. 6422/ per month. He did
not give any opportunity of complaint by the management and work
with full sincerity and honesty. The management had not provided
legal facilities such as appointment letter, weekly and early leave,
bonus, ESI & PF, overtime etc. and when workman demanded these
facilities then misbehave with him and on 06.09.0211 he was
terminated from his service. He was also not paid earn wages from
01.08.2011 to 06.09.11. The management terminated him in violation
of Section 25F of ID Act.
It is further contended that the workman sent a legal
ID No.898/14 Mohan Kumar Vs M/s Expectation Page No. 2 out of 11
demand notice dt. 29.09.2011 through Registered AD/Speed Post
demanding reinstatement with full back wages and other benefits. The
management did not paid any heed to it. He filed a complaint before
Conciliation Officer, Labour Department on which conciliation officer
tried to reinstate the workman in service but management refused to
reinstate him or pay his balance wages, therefore, case was referred to
this court. He claimant relief of restatement with full back wages and
other benefits.
3. Notice of the reference was served upon the management
the management but despite service, none has appeared on behalf of
management nor management failed to file the W.S., hence,
management was proceeded exparte vide order dt. 01.11.14.
4. The workman led his evidence by way of affidavit
Ex.WW1/A and examined himself as WW1. He relied upon
documents i.e. copy ESI card Ex.WW1/1, copy of demand notice dt.
29.09.11, Ex.WW1/2 & 3 are postal receipts, Ex.WW1/4 i.e.
Complaint 29.09.11 filed before Labour Department, Ex.WW1/5 i.e.
Claim filed before the Conciliation officer, Ex.WW1/6 are the gate
passes issued by the management/respondent for the period January,
2001 to January, 2004, Ex.WW1/7 ESI card, Ex.WW1/8 PF slips for ID No.898/14 Mohan Kumar Vs M/s Expectation Page No. 3 out of 11 the period 2004 to 2010 (6 slips collectively). He also relied upon document which is MarkA i.e. PF return for the period October, 2010 to March, 2011 (containing 5 pages).
6. I have heard the arguments addressed by Ld. Counsel for the workman and perused the file.
7. On perusal of the record, I found that the workman corroborated the contents of statement of claim in his affidavit and inter alia stated that he had been working with the management since January, 27.01.2001 on the post of 'Pressman, honestly and sincerely and his last drawn salary was Rs. 6422/ per month. He further deposed that management had not paid earned wage for the period of 1.08.2011 to 06.09.11, and on demand of said medical claim, the management terminated his services of workman on 06.09.11 without issuing any notice or charge sheet. In order to prove his contention, workman relied upon documents, ESI, PF, demand notice, and claim filed before conciliation officer. Since the workman has stated in statement of claim as well as in the affidavit that he was employed with the management on 27.01.2001 but there is no documentary evidence to prove this fact, however, the ESI card Ex.WW1/7 relied upon by the workman shows his date of joining as 01.12.2005. ID No.898/14 Mohan Kumar Vs M/s Expectation Page No. 4 out of 11 Further the workman has also filed PF which are for the period 20052010 which shows that he was not appointed by the management prior to year 2005. The PF slip only shows the annual contribution of Rs. 78/ have been deposited in the year 20052006. It is proved that the contribution of only December was deducted by the management. Hence, from documents produced by the workman itself it is evident that his testimony that he joined the management on 01.12.2005. therefore, I reject the oral testimony of workman to the extend that he joined the management on 27.1.2001, however, as mentioned above, the management has opted not to appear and contest his case, not to refute the allegations or rebut the evidence adduced by the workman. In these circumstances, there is no reason to disbelieve the evidence adduced by the workman. The unrebutted evidence has established that the management terminated the services of the workman Sh. Mohan Kumar in violation of the provisions of Section 25F of the Act and violated the principles of natural justice in as much as he was neither issued any notice, nor offered or paid notice pay or retrenchment compensation. Since the management terminated the service of the workman illegally and/or unjustifiable without issuing any charge sheet, nor any enquiry was held against him. ID No.898/14 Mohan Kumar Vs M/s Expectation Page No. 5 out of 11
9. Ld. AR for workman has claimed reinstatement with full back wages. It is settled law in case of illegal termination also reinstatement is not automatic. In Nehru Yuva Kendra Sangathan Vs. Union of India & Ors. 2000 IV AD (Delhi) 709, Hon'ble Delhi High Court dealt with the question of reinstatement and back wages and observed in paragraphs 27 and 28 as under : "27. We find from the decision of the Supreme Court rendered in the 1970s and 1980s that reinstatement with back wages was the norm in cases where the termination of the services of the workman was held inoperative. The decisions rendered in the 1990s, including the decision of the Constitution Bench in the Punjab Land Development and Reclamation Corporation Ltd., Chandigarh seem to suggest that compensation in lieu of reinstatement and back wages is now the norm. In any case, since we are bound to follow the decision of the Constitution Bench, we, therefore, conclude that reinstatement is not the inevitable consequence of quashing an order of termination; compensation can be awarded in lieu of reinstatement and back wages.
28. Considering the facts of this case, we are persuaded to award compensation in lieu of reinstatement and back wages to the workman............................................................................. ........................................"
10. In Municipal Council, Sujanpur Vs. Surinder Kumar 2006 LLR 662, Hon'ble Supreme Court observed that the relief of reinstatement is not automatic but is in the discretion of the court. In paragraph 16, it was observed as under : ID No.898/14 Mohan Kumar Vs M/s Expectation Page No. 6 out of 11 "Apart from the aforementioned error of law, in our considered opinion, the Labour Court and consequently the High Court completely misdirected themselves insofar as they failed to take into consideration that relief to be granted in terms of section 11A of the said Act being discretionary in nature, a Labour Court was required to consider the facts of each case therefor. Only because relief by way of reinstatement with full back wages would be lawful, it would not mean that the same would be granted automatically".
11. In Vinod Kumar & others vs Salwan Public School & others WP(c)5820/2011 dt.17.11.2014 Hon,ble Justice V. Kameshwar Rao has held as under:
11.Having considered the rival submissions of the counsels for the parties, I do not find any infirmity in the order of the Labour Court. It is a settled position of law that even if termination has been held to be illegal, reinstatement with full back wages is not to be granted automatically. The Labour Court is within its right to mould the relief by granting a lumpsum compensation. In fact, I note that the Labour Court has relied upon three judgments propounding the law that the Labour Court can mould a relief by granting lump sum compensation; the Labour Court is entitled to grant relief having regard to facts and circumstances of each case.
12. Further, the Supreme Court in the following judgments held ID No.898/14 Mohan Kumar Vs M/s Expectation Page No. 7 out of 11 as under:
18.(a) In the matter reported as Jaipur Development Authority v.
Ramsahai, (2006) 11 SCC 684, the court has stated: "However, even assuming that there had been a violation of Sections 25G and 25H of the Act, but, the same by itself, in our opinion, would not mean that the Labour Court should have passed an award of reinstatement with entire back wages. This Court time and again has held that the jurisdiction under Section 11A must be exercised judiciously. The workman must be employed by State within the meaning of Article 12 of the Constitution of India, having regard to the doctrine of public employment. It is also required to recruit employees in terms of the provisions of the rules for recruitment framed by it. The respondent had not regularly served the appellant. The job was not of perennial nature. There was nothing to show that he, when his services were terminated any person who was junior to him in the same category, had been retained. His services were dispensed with as early as in 1987. It would not be proper to direct his reinstatement with back wages. We, therefore, are of the opinion that interest of justice would be subserved if instead and in place of reinstatement of his services, a sum of Rs 75,000 is awarded to the respondent by way of compensation as has been done by this Court in a number of its judgments." (b) In the matter reported as Nagar Mahapalika v. State of U.P., (2006) 5 SCC 127, the court has stated:
"23. Noncompliance with the provisions of Section 6N of the U.P. Industrial Disputes Act, although, may lead to the grant of a relief of reinstatement with full back wages and continuity of ID No.898/14 Mohan Kumar Vs M/s Expectation Page No. 8 out of 11 service in favour of the retrenched workmen, the same would not mean that such a relief is to be granted automatically or as a matter of course.
25.....The appellant herein has clearly stated that the appointments of the respondents have been made in violation of the provisions of the Adhiniyam. An appointment made in violation of the provisions of the Adhiniyam is void. The same, however, although would not mean that the provisions of the Industrial Disputes Act are not required to be taken into consideration for the purpose of determination of the question as to whether the termination of workmen from services is legal or not but the same should have to be considered to be an important factor in the matter of grant of relief. The Municipal Corporation deals with public money. Appointments of the respondents were made for carrying out the work of assessment. Such assessments are done periodically. Their services, thus, should not have been directed to be continued despite the requirements therefor having come to an end. It, therefore, in our considered view, is not a case where the relief of reinstatement should have been granted." (c) In the matter reported as Talwara Coop. Credit and Service Society Ltd. v. Sushil Kumar, (2008) 9 SCC 486, the court has stated: "8. Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section 11 A of the Industrial Disputes Act, 1947 are required to strike a balance in a situation of this nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment viz. whether the appointment had been ID No.898/14 Mohan Kumar Vs M/s Expectation Page No. 9 out of 11 made in accordance with the statutory rules so far as a public sector undertaking is concerned, etc., should be taken into consideration." (d) In the matter reported as Jagbir Singh v. Haryana State Agriculture Mktg. Board, (2009) 15 SCC 327, the court has stated :
"...7. It is true that the 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 a 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 of the prescribed procedure.
14. An order of retrenchment passed in violation of Section 25F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee."
12. Now reverting back to the case, the workman has claimed relief of reinstatement with full back wages and other consequential benefits but on perusal of file I found that workman has worked from ID No.898/14 Mohan Kumar Vs M/s Expectation Page No. 10 out of 11 01.12.2005 to 06.09.2011, thus he has worked for a short period of approximate six year. In view of the facts and circumstances, it would not be appropriate to grant reinstatement to workman. Therefore, considering the facts and circumstances, I grant a compensation of Rs. 2,00,000/(Two Lac) as retrenchment compensation in lieu of reinstatement and back wages and all other consequential relief. Award is passed accordingly.
11. Copy of award be sent to the Secretary Labour, Govt. of NCT, Delhi for publication as per rules.
File be consigned to Record Room.
Announced in the Open Court on this 20st January, 2015 (Sanjeev Kumar) Presiding Officer, Labour Court, Karkardooma, Delhi.
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