Delhi District Court
Government Of Delhi vs Jagpal Singh Tyagi 2006 Llr 254. I Have ... on 10 January, 2007
1
I.D.NO. 1266/01.
IN THE COURT OF SH. GURDEEP KUMAR: PRESIDING OFFICER:
LABOUR COURT NO.1 : ROOM NO. 52 : KARKARDOOMA : DELHI.
BETWEEN
M/s. Sun Silk Printing Ink Company, C-231, Khasra No. 487,
Peera Gari, Delhi-41.
AND
Its workman C/o Mazdoor Vikas Morcha X-47, Civil Wing, Tis
Hazari Courts, Delhi-54.
AWARD :
Vide Notification No.F. 24 (1373)/ 2001-Lab./ 17257-
61 dated 02.08.2001, Secretary Labour, Delhi Administration,
Delhi has referred this dispute to this court for its adjudication
u/s 10 (1)(c) and 12 (5) of the I.D. Act, 1947. The terms of
reference are as under :-
''Whether the services of Sh. K.K. Mishra
have been terminated illegally and / or
unjustifiably by the management, and
if so, to sum of money as monetary
relief along with consequential benefits
in terms of existing laws / Govt.
Notifications and to what other relief is
he entitled and what directions are
necessary in this respect?''
Workman's case in brief is that he had been
working continuously with the management on the post of
Contd..
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General Clerk since November, 1989 and his last drawn
wages were Rs. 2,550/- per month. He has been performing
his duties to the entire satisfaction of the management and
never gave any chance of complaint. He was not given
legal benefits such as minimum wages as declared by
Government of Delhi, overtime payment, appointment
letter yearly and casual leave etc. etc. and when he made
verbal demand for the same, the management got
annoyed. On 07.09.2000 his services were terminated by
the management without assigning any reason and
payment. He was not paid earned wages of August 2000,
leave encashment, overtime payment, minimum wages
arrear etc. It is averred that termination of claimant
without payment of notice pay, service compensation,
charge sheet and enquiry is illegal and unjustified. He sent
demand notices through registered A.D on 19.09.2000 and
through UPC on 20.09.2000 to the management which were
not replied by the management despite receipt thereof.
Conciliation proceedings also failed to yield any positive
Contd..
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result. It is further averred that he is unemployed till date
despite his best efforts. He has sought his reinstatement with
continuity of service and full back wages.
2. The management has filed a Written Statement
taking preliminary objection that the terms of reference are
illegal, ultra virus and liable to be rejected as there was no
material before the appropriate government to refer the
matter for adjudication. It is averred that claimant has
been absenting himself from the duty without any prior
information or without any sanction of leave w.e.f.
07.09.2000. The management sent many notices for joining
the duty but the workman appeared and submitted his
resignation and taken all his dues from the management
company. Therefore, there is no dispute between the
parties. It is further averred that claimant worked with the
management as a Sales Representative and hence he was
not a workman as defined in the Industrial Disputes Act. It is
further averred that claim of the claimant is totally false,
Contd..
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frivolous and concocted and same is not maintainable in
the eyes of law. All other allegations as made in statement
of claim are denied by the management in toto.
3. The workman filed rejoinder denying averments
made in the Written Statement reiterating the facts stated
in the Statement of Claim.
4. On the above facts / pleadings, following issues
were settled on 18.09.2003 by my ld. Predecessor :-
1.Whether the claimant submitted his resignation and took his full and final dues, if so, its effect?
2. As per terms of reference.
5. Claimant, K.K. Mishra examined himself as W.W.1. On the other hand, Mr. Ajit Mohan Singh, proprietor of the management examined himself as M.W.1. Besides, management also examined Syed Sarfraz M.W.2, Handwriting and Fingerprint Expert in their evidence.
Contd..
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6. Claimant W.W.1, K.K. Mishra tendered his affidavit in evidence duly attested by Oath Commissioner appointed by the Hon'ble High Court of Delhi reiterating averments spelled out in the statement of claim. Besides, he stated that management issued him ESI card which is Ext. WW1/1, carbon copy of demand notice dated 19.09.2000 is Ext. WW1/2 which was sent through postal receipt Ext. WW1/3 and A.D. Card Ext. WW1/4 and UPC Ext. WW1/5, copy of statement of claim filed before the Conciliation Officer Ext. WW1/6.
7. On the other hand, the M.W1 Ajit Mohan Singh, Proprietor of management also tendered his affidavit in evidence, duly attested by the Oath Commissioner appointed by the Hon'ble High Court of Delhi. Therein he reiterated all averments by the management as spelled out in the Written Statement. He proved photocopy of appointment letter issued to the workman as MW1/1, letters Contd..
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sent to the workman to join duties are Ext. MW1/2 & MW1/3, copy of resignation letter Ext. WW1/4, copy of full and final receipt Ext. WW1/5.
8. I have gone through the written arguments filed by both the parties. I have also carefully gone through the evidence and other relevant material available on record. My findings on the issues are as under :-
ISSUE NO. 1.
9. It is not in dispute that the claimant Mr. K.K. Mishra was employed with the management as a General Clerk. It is also not in dispute that he had worked with the management for more than 240 days before his services were terminated by the management on 07.09.2000. However, the plea of the management is that the workman himself absented from duty w.e.f. 07.09.2000 without any Contd..
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prior sanction of leave and he did not report for duty despite several letters sent to him by the management. Rather he came to the management on 05.01.2001, submitted his resignation and taken all his dues from the management. Onus is on the management to prove their plea.
10. Coming to the alleged absence of the workman w.e.f. 07.09.2000 without any intimation or sanction of leave, M.W1 Ajit Mohan Singh, Proprietor of the management deposed that workman was absenting from his duty from the said date without any information or sanctioned leave. He further deposed that the management sent letters Ext. MW1/2 and MW1/3 to the workman at the address given by him asking him to join his duties. The management has not placed on record any documentary proof such as A.D card to prove delivery of those letters by the management to the workman. Ext. MW1/3 is photocopy of reply allegedly sent by the management to the workman's demand notice Contd..
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dated 19.09.2000. In that reply it has been alleged by the management that workman himself was absenting from duty without any information or sanctioned leave from 07.09.2000 and he was advised to join his duties immediately. The said reply has been disowned by M.W1 Ajit Mohan Singh, Proprietor in his cross examination. Initially he stated that he did not remember that if the demand notice dated 19.09.2000, admittedly received by him, vide A.D Card Ext. MW1/4, was replied or not. Then he categorically stated that the said letter was not replied. Thereby the management has disowned Ext. MW1/3. Therefore, it does not help the management in any manner whatsoever. Besides, there is nothing on record by the management to prove that same was despatched and delivered to the workman. In the absence of any such evidence, the said letter cannot be deemed to have been received by the workman. There is no cogent and authentic evidence by the management to prove that it had sent letters to the workman telling him that his services Contd..
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had not been terminated but he himself was absenting from duty without any information or sanctioned leave w.e.f. 07.09.2000.
11. The workman deposing as WW1 has categorically denied that he was absenting from duty from 07.09.2000. He has categorically deposed that it is the management who had terminated his services w.e.f. 07.09.2000 which he had reiterated in his demand notice Ext. WW1/2 duly served upon the management vide A.D card Ext. WW1/4. Therefore, the evidence that has come on record goes to show that the management has failed to prove its plea regarding unauthorized absence of the workman from 07.09.2000. In the demand notice Ext. WW1/2 workman had categorically asserted termination of his services by the management from 07.09.2000 when he reported for duty on that day. As already mentioned above, the said demand notice was duly received by the management vide A.D card Ext. WW1/4 which is also admitted by M.W1 Ajit Mohan Contd..
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Singh in his cross examination. Also as already mentioned above, the management has disowned Ext. MW1/3 purported to be a reply to the demand notice. Besides, there is no proof of service of the said reply on the workman by any specific mode. Therefore, there is no iota of evidence by the management to show that said assertions in the demand notice Ext. WW1/4 were controverted by the management in any manner whatsoever. On that account an adverse inference is attracted against the management that the workman was not absent from duty w.e.f. 07.09.2000 unauthorizedly and that his services were terminated by the management on 07.09.2000.
12. Another plea of the management is that subsequently on 05.01.2001 the workman himself came to the management, submitted his resignation letter Ext. MW1/4 which was accepted on that very day and he was paid dues in full and final vide receipt-cum-settlement Ext. MW1/5. The said documents were put to the workman in Contd..
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his cross examination and were marked as Mark X and Z but the workman denied that the said documents were signed by him. He categorically stated that the said documents do not bear his signatures. He categorically denied that on 05.01.2001 he requested the management for full and final payment and that he was paid full and final payment by the management on that very day. He further stated that after 07.09.2000 he only wrote a letter to the management and never visited the management. The onus is on the management to prove the resignation letter Ext. MW1/4 and the full and final payment receipt Ext. MW1/5 (marked as Mark X and Z in the cross examination of the W.W.1, K.K. Mishra, workman). In order to prove that the said documents are signed by the workman, the management has examined M.W1 Ajit Mohan Singh, its proprietor and M.W.2 Syed Sarfraz Handwriting and Fingerprint Expert. M.W2 Syed Sarfraz deposed that he had examined the disputed and admitted signatures and given his detailed report Ext. MW2/1. According to him, the questioned Contd..
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signatures and the sample signatures are written by one and the same person that is workman, K.K. Mishra. He also placed on record the photographs Ext. MW2/2 collectively and the nine negatives Ext. MW2/3 collectively. In his cross examination, he produced Ext. MW2/4 a copy of certificate issued in his favour by the Institute of Forensic Science, Arra, Bihar in order to show that he had done five years specialized course from the said institute. However, in his cross examination he could not disclose the name of the University to which the said institute is affiliated. He also admitted that the said certificate Ext. MW2/4 is signed by his own father. Therefore, there is nothing on record to show that M.W.2 Syed Sarfraz is a Handwriting and Fingerprint Expert duly recognized by a Government Agency / University and, therefore, his report does not inspire any confidence and cannot be believed. I myself have compared admitted signatures of the workman on the statement of claim, letter of authority, statement of claim filed before the Conciliation Officer Ext. WW1/6 with the Contd..
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disputed signatures in Ext. MW1/4 and MW1/5. I am of the considered view that there are no similarities in the aforesaid admitted and disputed signatures. Dissimilarities in the admitted and the disputed signatures can be seen with necked eyes. Therefore, there is cogent and authentic evidence by the management to prove that the signatures on the resignation letter Ext. MW1/4 and the full and final receipt Ext. MW1/5 are the signatures of the workman, K.K. Mishra.
13. Besides, M.W1, Ajit Mohan Singh, proprietor of the management, in his cross examination failed to disclose the name of the subscriber of the contents of Ext. MW1/4. He also did not disclose the name even of the contents of full and final receipt Ext. MW1/5. As a result, the contents of full and final documents are not proved by the management. Consequently, these documents Ext. MW1/4 and MW1/5 cannot be considered in evidence and, therefore, do not help the management in any manner whatsoever.
Contd..
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14. The aforesaid plea of the management regarding resignation by the workman on 05.01.2001 and receipt of full and final dues on that very day by the workman is not believable for the simple reason that at no point of time the management had informed the Conciliation Officer regarding resignation by the workman and payment of his full and final dues on 05.01.2001. After the demand notice Ext. WW1/2 dated 19.09.2000, the workman had filed statement of claim before the Conciliation Officer dated 11.10.2000 carbon copy of which is Ext. WW1/6. Reference was made by the Labour Commissioner on 02.08.2001. M.W1 Ajit Mohan Singh in his cross examination stated he did not appear before the Conciliation Officer in connection with the said petition filed by the workman. However, he stated that he had written a letter to Mr. K.R. Verma, Assistant Labour Commissioner, Conciliation Officer carbon copy of which is Ext. MW1/6. As admitted by him in his cross examination, document Ext. MW1/6 does not bear Contd..
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any date nor there is any proof of despatch to the Conciliation Officer and its acknowledgment in his office. Therefore, it cannot be said that the management had sent written letter to the Conciliation Officer in response to claim Ext. WW1/6 filed before the Conciliation Officer. In the said document it has not been asserted by the management that workman had resigned from the job on 05.01.2001 and he was paid any specific amount in full and final payment of his dues. If the workman had tendered his resignation vide Ext. MW1/4 on 05.01.2001 and the workman had been paid full and final dues on that very date vide Ext. MW1/5 nothing prevented the management to appear before the Conciliation Officer and to make submission in that regard. There is no iota of evidence that management ever appeared before the Conciliation Officer and informed him regarding resignation by the workman on 05.01.2001 and payment of full and final dues by the management to the workman on 05.01.2001. This falsifies the plea of the management in that regard.
Contd..
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15. The management did not produce its books of accounts or any record maintained by it to prove the payment as mentioned in Ext. MW1/5. Vide Ext. MW1/5 management claims to have paid a sum of Rs. 18,610.85 paise in full and final payment of dues. However, the management did not produce any authentic record to prove receipt of that payment by the workman. This further falsifies the plea of the management regarding resignation by the workman and its acceptance on 05.01.2001 and payment of full and final dues on that very date vide Ext. MW1/5.
16. In the written arguments management A.R has relied upon the case law reported as State of Uttranchal Vs. Jagpal Singh Tyagi 2006 LLR 254. I have gone through the same. Therein it was held by Their Lordships that when a workman received the benefits under a settlement, he cannot challenge its validity without justifiable reasons. It is Contd..
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further held by Their Lordships that settlement will not be held illegal when the workman failed to prove that it was obtained by fraud or concealment of facts.
17. As discussed above, the management has failed to prove its plea of resignation by the workman and payment of his full and final dues under settlement and, therefore, with due respect to their Lordships, the said case law does not help the management in any manner whatsoever. He has also relied upon the case law reported as National Engineering Industries Ltd. Vs. State of Rajasthan & others 2000 LLR 228. Therein it was held by Their Lordships that settlement arrived at on a holiday cannot be held to be invalid. This also does not help the management in any manner as the management has failed to prove the alleged settlement with the workman.
18. In the light of the evidence that has come on record as discussed above, the management has failed to Contd..
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prove its plea regarding unauthorized absence of the workman w.e.f. 07.09.2000 and his not reporting for duty despite directions to do so. It has also failed to prove its plea of resignation and settlement by payment of full and final dues on 05.01.2001. Therefore, this issue is decided against the management and in favour of the workman. ISSUE No. 2.
19. It is not the case of the management that it had served any notice, show cause or charge sheet on the workman before terminating his service on 07.09.2000. Therefore, it is a clear case of violation of the provisions of Section 25-F of the Industrial Disputes Act, 1947. In the light of the facts and the evidence on issue No. 1 above, I am of the considered view that the services of the workman, K.K. Mishra were terminated by the management on 07.09.2000 illegally and unjustifiably without any notice, charge sheet or domestic enquiry in violation of Section 25-F of the I.D. Act, Contd..
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1947. It is also proved on record that the workman has served the management for more than a year when his services were terminated.
20. The termination of services as above has been defined as retrenchment. The case of the claimant is not covered under any exception of the definition of retrenchment u/s 2 (oo) of the I.D. Act, 1947. It is settled law that retrenchment of the workman without compliance of provisions of of Section 25-F of the I.D. Act, 1947, is ab- initio illegal besides being inoperative and ineffective. Further, it follows that the workman continued to be in service.
21. In the light of the aforesaid evidence, I hold that the services of the workman were terminated illegally and unjustifiably by the management. As such, the workman is held entitled to reinstatement with continuity of service. Coming to the question of back wages, A.R for the management has referred to the case law reported as Contd..
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Indian Engineering Works (Bombay) Pvt. Ltd. Vs. The Presiding Officer 5th Labour Court and others 1994 LLR 94 and Chairman, Governing Council Anjuman Arts, Commerce and Science and Others Vs. Sayyed Mohammad Shafi 1996 LLR 481. In the case before the Hon'ble Apex Court, the enquiry revealed that the employee was gainfully employed during the intervening period. It was held by Their Lordships that he is not entitled to back wages but only to the admitted salary from the date of reinstatement. In the Indian Engineer Works ( Bombay) Pvt. Ltd. Vs. The Presiding Officer 5th Labour Court and Others (supra), the management had led evidence which conclusively showed that the workman was gainfully employed in another company. It was held by their Lordships that the dismissed workman owed a duty to the industrial adjudicator to honestly disclose full particulars of the facts which are purely withing his knowledge and that any attempt to mislead the Tribunal must surely be looked at askance. It is settled law that onus is on the workman to Contd..
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prove that he was unemployed during the intervening period. Reference in this regard may be made to the case law reported as M.L. Binjolkar Vs. State of M.P (2005) 6 SCC 224 has held as under :-
"The earlier view was that whenever there is interference with the order of termination or retirement, full back wages were the natural corollary. It has been laid down in the cases referred to in this case (listed below) that it would depend upon several factors and the Court has to weigh the pros and cons of each case and to take a pragmatic view. That being so, it would not be appropriate to interfere with the quantum of 50% fixed by the High Court.
In another case titled Kendriya Vidyalaya Sangathan Vs. S.C. Sharma (2005) 2 SCC 363 Their Lordships has held as under :-
"Initial burden is on the employee and he has to show that he was not gainfully employed. It is thereafter that the employer can bring on record materials to rebut the claim of the employee. In the present case, the employee had neither pleaded nor placed any Contd..22
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material in that regard and, therefore, High Court erred in holding that he was entitled to full back wages."
22. In view of the said proposition of law laid down by the Hon'ble High Court onus is on the workman to prove that he is entitled to full back wages. The workman WW1, K.K. Mishra in his affidavit in evidence stated that from the day of termination of his services he is unemployed despite his best efforts. In his cross examination it was suggested by the management that he was working with M/s. Roop Quoting Company at Sarita Vihar, Delhi. However, the workman denied the same. On the other hand, M.W1, Ajit Mohan Singh, proprietor of the management stated that the workman is gainfully employed since the aforesaid date. The said part of the statement of M.W1, Ajit Mohan Singh is not challenged in his cross examination conducted by the workman A.R. There is not even a bare suggestion to the management witness that workman K.K. Mishra has been unemployed and without any source of income during the Contd..
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intervening period and that he is not gainfully employed during the said period. In his own cross examination, workman WW1 K.K. Mishra stated that he is married having three children out of whom two are school going. He further stated that expenditure of his house is Rs. 4,000/- to 5,000/- per month but they are able to survive. However, the workman, K.K. Mishra did not disclose the source of those Rs. 4,000/- to Rs. 5,000/- per month to meet his household expenses.
23. In the light of this and the un-rebutted and unchallenged statement of M.W.1 Ajit Mohan Singh, it cannot be believed that the workman K.K. Mishra has remained unemployed and had no source of income during the intervening period. The source of Rs. 4,000/- to Rs. 5,000/- required for his family expenses every month is a fact which is purely within the knowledge of the workman. Since, he has not disclosed the same, the only inference that can be drawn is that workman K.K. Mishra has been Contd..
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gainfully employed during the intervening period. On this I am fortified by the case law of Indian Engineer Works (Bombay) Pvt. Ltd. Vs. Presiding Officer, 5th Labour Court (supra) and also Chairman, Governing Council Anjuman Arts, Commerce and Science and others Vs. Sayeed Mohammad Shafi (supra). In the light of the said evidence, I am of the considered view that the workman K.K. Mishra is not entitled to any back wages for the intervening period.
The reference is answered accordingly. Dated : 10.01.2007. (GURDEEP KUMAR) PRESIDING OFFICER:
LABOUR COURT NO.I. Typed 1+6 copies K.K.RDOOMA:DELHI.
Contd..