Delhi District Court
Sh. Virender Singh vs M/S. Krishna Life Style Technology on 15 October, 2014
BEFORE THE COURT OF SHRI RAKESH KUMAR
SHARMA
PRESIDING OFFICER : LABOUR COURT
XVII:KKD:DELHI
DID No. 99/09.
Unique ID No.02402C0328352009.
Sh. Virender Singh,
S/o Sh. Bharat Singh,
C/o Rashtriya Rajdhani Kshetra Engineering
And General Mazdoor Union (Regd.),
C139, Karampura, New Delhi15.
..............Workman
Versus
M/s. Krishna Life Style Technology,
Motiya Khan, 23, Rani Jhansi Road,
New Delhi.
.............Management
DATE OF INSTITUTION : 04.11.2009.
DATE ON WHICH AWARD RESERVED : 14.10.2014.
DATE ON WHICH AWARD PASSED : 14.10.2014.
A W A R D :
1. This is a direct industrial dispute filed by the workman
DID No.99/09. 1/28
u/s 10 (4A) of the Industrial Disputes Act (hereinafter "the Act")
against the management.
2. In his claim, it is submitted by the workman that he
was working with the management as Store Keeper since
September, 2007. His last drawn salary was Rs.8,000/ per month.
The management was not providing him a number of facilities and
benefits including attendance card, ESI, wage card, casual leave,
etc. as per law. Even the name of the workman was not written on
the attendance register nor he was paid salary on the wages
register. The workman made several demands for the aforesaid
facilities, as a result of which the management got annoyed and
terminated the services of the workman on 20.10.2009 without any
notice or notice pay or chargesheet or enquiry or retrenchment
compensation, in violation of Section 25F of the Act. Hence, the
termination is illegal. The workman continued to approach the
management from 20.10.2009 to 24.10.2009, but the management
flatly refused to reinstate him. The workman also sent a demand
notice dated 26.10.2009 to the management seeking reinstatement
but the management did not reply to the notice. The workman is
DID No.99/09. 2/28
unemployed since the date of his termination despite his best
efforts. He has sought reinstatement with full back wages and all
facilities since the date of his termination i.e. 20.10.2009.
3. The management has contested the claim by filing a
written statement. It is submitted by the management that the
workman was employed since November, 2007 only. As per the
terms and conditions of the service of the employees of the
management, including the workman, the employees can be
transferred to any of the offices of the management all over India.
The workman was transferred to Ludhiana. However, the
workman refused to report at Ludhiana unit. Hence, he is guilty of
insubordination. He stopped reporting for his duties from
20.10.2009. Thereafter on 24.12.2009, the workman visited the
head office of the management where the management made an
out of Court settlement with him and also made payment as per his
demands by way of a cheque which was encashed by him. He is
employed with Jain Uday and Company, Desh Bandhu Gupta
Road, opposite Bali Nursing Home as Sales Man and getting a
salary of Rs.15,000/ per month. As per the records of the
DID No.99/09. 3/28
management, the workman is still in the employment of the
management and it is for him to join his services as stated in the
reply. The other contents of the claim are denied by the
management who has sought dismissal of the claim with costs.
4. From the pleadings of the parties, following issues
were framed :
a) Whether the claimant proves that he was illegally
terminated on 20.10.2009, by the management?
b) Whether the management proves that the claimant
himself abstained from the duties from 20.10.2009
and thereafter he visited the head office of the
management at Bombay on 24.12.2009 and got the
matter finally settled with the management and
received the payment thereon towards all his claims
arising out of the employment?
c) Relief.
5. The workman examined himself as the only witness
(WW1) in support of his case whereas the management examined
its Manager Sh. Anil Mahawar as the only witness (MW1) in
support of its case.
DID No.99/09. 4/28
6. Written arguments were filed by both the parties.
7. Ld. Authorized Representative for workman (ARW)
relied upon the following authorities in support of his
contentions :
1. 2009 LLR 475 Tobu Enterprises Ltd. Vs. Presiding
Officer, Industrial Tribunal and Ors. and
2. 2004 LLR 158, Public Works Department Vs. Dev Sukh
& Ors.
8. The management relied upon MANU/DE/0217/2013
Management of M/s. Amazone Exports Pvt. Ltd. Vs. Secretary of
Labour And Anr. in support of its contentions.
9. I have gone through the record, including the written
arguments filed by both the parties as well as the authorities relied
upon by them.
10. My issueswise findings are as follows :
DID No.99/09. 5/28
ISSUES No. (a) & (b).
11. Both the issues are being taken up together as both are
interrelated. The burden of proving issue No. (a) was on the
workman whereas the burden of proving issue No. (b) was on the
management.
12. However, it has been held in 2003 ( 98) FLR 261,
Tin Box Company Vs Inderjit Singh as follows:
"4. He has also placed a decision of the Allabad High
Court in Airtech Private Ltd. v. State of Uttar Pradesh
and others, wherein a similar fact situation had arisen. In
the said decision, it has been observed that the statement
of claim supported by the affidavit of the claimant
constitute the preliminary evidence and it is upon the
Management / employer to controvert the same and if not
so controverted then nothing further needs to be proved
and done by the claimant. However, the primary
responsibility of establishing his case rests on the
claimant. And in that case, the Allahabad High Court
held that the Labour Court had patently erred in holding
that the burden of proof lay upon the employers. It
further held that the obligation to lead evidence to
establish an allegation made by a party is on the party
making the allegation. The test would be, who would fail
DID No.99/09. 6/28
if no evidence is led. The party making the allegation and
seeking redressal must seek an opportunity to lead
evidence. A similar view was taken by the Division Bench
of the said Allahabad High Court in the case of V.K. Raj
Industries v. Labour Court and others.
5. Agreeing with the view taken in the said decision of the
Allahabad High Court, I hold that the impugned order
dated 22nd February, 1989 passed by the Labour Court
asking the petitioner to lead evidence first cannot be
sustained in law an, I accordingly quash the same. The
claimant is to lead evidence first as it is he who has to
establish his allegations. The matter is remanded to the
Labour Court for adjudication as per provisions of law. It
is made clear that this Court has not expressed its view on
the merits of the reference. In these circumstances there
shall be no order as to costs."
(underlining be me.)
13. It is clear from the authority that the initial burden of
proving his case was on the workman.
14. I shall first decide the question whether the services of
the workman were terminated by the management or whether he
himself absented from his duties and shall come to the question
whether the matter was settled by the workman with the
DID No.99/09. 7/28
management, later on.
15. In his affidavit filed as examinationinchief, the
workman fully supported his case as stated in the claim. He
specifically stated that his services were terminated by the
management and relied upon the demand notice along with postal
receipt and AD card collectively as Ex. WW1/1 and photocopy of
his Pass Book as Mark A. In its written arguments, it is submitted
by the management that "all the documents are not denied by the
management". Hence, all these documents stand proved on
record.
16. In his cross examination, he denied that he did not
report for his duty after 20.10.2009 that the management sent a
reply to his demand notice and that he was merely asked to report
for his duty at Ludhiana and was not terminated, and stated that he
did not receive Mark A (i.e. alleged reply of the management to his
demand notice), that Sh. Anil Mahawar, Store Incharge wanted to
transfer him to Ludhiana and when he (workman) refused to go
there, his services were terminated and that Sh. Anil Mahawar,
DID No.99/09. 8/28
gave him telephonic call on 19.10.2009 asking him not to come for
his duties from the next day.
17. In his affidavit filed as examinationinchief, Sh. Anil
Mahawar as MW1 fully supported the case of the management as
stated in the written statement and specifically stated that the
services of the workman were not terminated and that management
decided to transfer the workman to Ludhiana which the workman
refused and stopped reporting from his duties from 20.10.2009.
He relied upon true copy of resolution of Board of Directors of the
management in his favour as Ex. MW1/1, the alleged letter sent by
the management to the workman calling upon him to join his
duties as Ex. MW1/2 (this is the same letter Mark A which was put
to the workman in his cross examination), two postal receipts both
dated 26.11.2009 as Ex. MW1/5A and Ex. MW1/5B, the initial
written statement filed by the management as Ex. MW1/3 and the
alleged transfer letter of the workman as Ex. MW1/5. In his cross
examination, MW1 admitted that there is no report of the postal
authorities that the workman refused to accept Ex. MW1/2. He
denied that no reply to Ex.WMW1/1 was given by the
DID No.99/09. 9/28
management to the workman and stated that Ex. MW1/2 is the
only letter sent by the management to the workman regarding his
unauthorized absence from Delhi unit and that Ex. MW1/2 was
sent at the address of the village of the workman.
18. In D.K. Yadav Vs. JMA Industries Limited 1993 (3)
SCC 259, the Hon'ble Supreme Court held as follows:
"It is thus well settled law that right to life enshrined under
Art. 21 of the Constitution would include right to livelihood.
The order of termination of the ,service of an
employee/workman visits with civil consequences of
jeopardizing not only his /her livelihood but also career and
livelihood of dependents. Therefore, before taking any
action putting an end to the tenure of an
employee/workman fair play requires that a reasonable
opportunity to put forth his case is given and domestic
enquiry conducted complying with the principles of natural
justice."
(underlining by me)
19. In Shiv Kumar Vs. Hansita 2011 LLR 13, Hon'ble
Delhi High Court held as follows:
"It is settled legal position that the abandonment of service
cannot be readily inferred. Abandonment of service is a
DID No.99/09. 10/28
question of intention which can be gathered from the totality
of the facts and circumstances of each case. There has to be
a clear evidence on record to show that despite grant of
reasonable opportunity to the employee by the management,
he failed to join back his duties without any sufficient
reasons and therefore in the absence of any such cogent and
convincing evidence, voluntarily abandonment on the part
of the employee cannot be readily inferred.........................
None of these letters were sent by the respondent
management through registered AD and on the other hand the petitioner sent a demand notice dated 21.7.1992 through registered AD which was replied by the respondent management vide their reply dated 24.8.1992 wherein the respondent management also gave reference of the above said letters sent to the petitioner by UPC. The petitioner in his rejoinder dated 3.9.1992 clarified to the respondent management that such letters were never received by him. The petitioner also sought to castigate the respondent in adopting dubious means in obtaining some certificates of posting from the post office to prove service of the said letters. No doubt that under Section 27 of the General Clauses Act service through UPC does give rise to a presumption but certainly service through UPC is a frail piece of evidence. The respondent management has failed to prove on record any dispatch register or any other documentary evidence to show that the said letters were dispatched by the respondent management in their normal and ordinary course of business. The petitioner who had put in 16 years of long service is not expected to be thrown out of employment just based on three UPC letters DID No.99/09. 11/28 purported to have been sent to him requiring him to join back his duties, he would not have sent demand notices just within a period of one andahalf month of his termination and immediately thereafter having raised an industrial Dispute.
10. Hence, the totality of the facts do not justify that in the aforesaid back drop of the circumstances the petitioner would have drop of the circumstances the petitioner would have voluntarily abandoned his services. It is not in dispute that the respondent did not issue any memo or set up an enquiry for the unauthorized absenteeism of the petitioner from his duties and it is quite evident that with the help of such UPC letters the respondent prepared the ground to circumvent the legitimate rights of the petitioner......."
(underlining by me.)
20. In Hindustan Associates Engineer Pvt. Ltd. Vs. Sh. K.K. Aggarwal & Ors. 2011 LLR 312, Hon'ble Delhi High Court held as follows : "As far as the case of abandonment is concerned, the counsel for the respondent No.1 workman has drawn attention to the crossexamination of the witnesses of the petitioner in which it is admitted that no letter or notice asking the respondent No.1 workman to join back was issued. The case of the petitioner is of abandonment with effect from 1st May, 1966. The case of the respondent No.1 workman is of having not been allowed to work since 1st DID No.99/09. 12/28 May, 1996. It is admitted that the respondent No.1 workman at least on 10 th December, 1996 called upon the petitioner to allow him to work. Had the respondent No.1 workman abandoned services, the petitioner instead of opposing the same would have allowed him to join considering the short time within which the said demand was made. Moreover, it has been held in Anil Chuttani v. ONGC, 2010 ( 117) DRJ 433 that for abandonment also a proper enquiry has to be made and which admittedly has not been done in the present case."
(underlining by me)
21. It is clear from the authorities that abandonment of service by an employee is not to be readily assumed and that abandonment is a question of intention to be found from the totality of the facts and circumstances of the case and that for abandonment, a proper enquiry has to be made by the management giving the employee an opportunity to put forward his case/reason for his absence.
22. As noted above, it is nowhere the case of the management that it conducted any domestic enquiry against the workman for his alleged absence.
DID No.99/09. 13/28
23. As noted above, sending of demand notice Ex WW1/1 is not disputed between the parties. The notice is dated 26.10.09 i.e within six days of the alleged abandonment. The present direct industrial dispute was filed on 04.11.09 i.e within 15 days of the alleged abandonment. All these facts clearly show that the workman was very much ready and willing to join his duty.
24. The management relied upon Ex MW1/2 as the reply to the notice of the workman Ex WW1/1. The management has relied upon two postal receipts Ex MW5/A and Ex MW5/B for showing service of Ex. MW1/2. Neither of the receipts contains full / complete address of the workman. Hence, service of Ex MW1/2 is not proved. Hence, it is held that Ex MW1/2 was never served on the workman . Even otherwise, as noted above, the reply Ex MW1/2 is dated 25.11.09. As noted above, the demand notice Ex. WW1/1 is dated 26.10.09. In ordinary course, it would have reached the management by 28.10.2009 and most certainly by 31.10.09. The record further reveals that notice of the present claim was served on the management on 12.11.09. Hence, Ex MW1/2 has been sent (if at all) after notice of the present claim DID No.99/09. 14/28 was served on the management. It is clear that the management did not take any action against the workman for his alleged unauthorised absence. In any case, no action was taken for a period of more than one month from the date of his alleged abandonment, for more than three weeks even after the service of the demand notice Ex WW1/1 and for more than 10 days even after receipt of notice of the present claim from the Court. In his crossexamination, MW1 admitted that except Ex MW1/2, no other letter was sent by the management to the workman regarding his alleged unauthorised absence.
25. In his crossexamination, MW1 admitted that the workman joined the management in September 2007.
26. It is difficult to believe that the workman, who was working with the management for more than two years, himself abandoned the job particularly keeping in view that he gave demand notice and filed the present direct industrial dispute promptly and that no action was taken by the management at all against him for his alleged absence, much less promptly. Hence, I DID No.99/09. 15/28 am of the view that the aforesaid authorities are squarely applicable to the facts of the present case.
27. In its written arguments, it is submitted by management that in his crossexamination, the workman stated that Sh. Anil Kumar Mahawar, Store Incharge of the management wanted to transfer him to Ludhiana and that he refused to go there. It is contended that this fact shows that since the management wanted to transfer him to Ludhiana which was not acceptable to the workman , the workman himself stopped coming for work. I do not find any force in the contention. As noted above, admittedly, the demand notice sent by the workman within six days of the alleged termination/abandonment. He has approached the Court within 15 days of the alleged termination / abandonment. All these facts clearly show that he was very much interested in his job and never absented himself.
28. Even otherwise, in his crossexamination, MW1 stated that there is no written document of the management stating that an employee posted at Delhi can be transferred from Delhi and DID No.99/09. 16/28 there are no Certified Standing Orders of the management. Hence, it is clear that the Model Standing Orders are applicable to the management.
29. I have also found the provision regarding transfer in the Model Standing Orders which is as follows: " (4) Transfer A workman may be transferred according to exigencies of work from one shop or department to another or from one station to another or from one establishment to another under the same employer:
Provided further that if a workman is transferred from one job to another, which he is capable of doing, and provided also that where the transfer involves moving from one State to another such transfer shall take place, either with the consent of the workman or where there is a specific provision to that effect in the letter of appointment, and provided also that (i) reasonable notice is given to such workman, and (ii) reasonable joining time is allowed in case of transfers from one station to another. The workman concerned shall be paid travelling allowance including the transport charges, and fifty per cent thereof to meet incidental charges".
( underlining by me) DID No.99/09. 17/28
30. It is clear from the Model Standing Orders that an employee cannot be transferred from one State to another without his consent unless it is specifically mentioned either in the Standing Orders of the management or in the appointment letter of the employee. The workman in his examinationinchief stated that no appointment letter was given to him. It is nowhere the case of the management that any appointment letter was given to the workman . In his crossexamination, MW1 stated that he did not know whether any appointment letter was given to the workman or not. Hence, it is held that no appointment letter was given to the workman . Hence, the workman could not have been transferred to Ludhiana without his consent. As noted above, the workman specifically stated that he was not interested in going to Ludhiana. Hence, his alleged transfer is bad.
31. In its written arguments, it is contended by management that the case of the workman is that of illegal termination and not that his transfer is illegal. No doubt, that this is true. In fact, keeping in view the totality of the facts and DID No.99/09. 18/28 circumstances of the case, it is more believable that the management refused to allow the workman to do his duty at Delhi from 20.10.2009 as it wanted to transfer him to Ludhiana to which he did not agree.
32. Even otherwise, I have held above that the workman did not stop coming to the management on his own and was prevented by the management for joining his duties. Hence, the contention is rejected.
33. I have gone through the authority relied upon by Ld ARM. There cannot be any doubt about the propositions of the law laid down in the authority but it is a settled law that each case is to be decided according to its own facts. I am of the view that the facts of the present case are materially different from those in the authority. Ld. counsel for the management referred to the initial written statement filed by the management in the present case to contend that the management had offered reinstatement to the workman in the written statement, as in the authority and, hence, the claim should be dismissed. I do not find any force in DID No.99/09. 19/28 the contention. In the initial written statement, the management has stated that "management is still interested in retaining the worker at its Ludhiana Office....... as per the company record, the worker is still in employment with the company and it is for him to join his services as stated above in reply to the claim of the worker." (underlining by me). It is clear that the offer of the management, if any, was conditional on the workman joining his duty at Ludhiana. I have held above that the workman cannot be transferred to any place outside Delhi without his consent. Hence, the imposition of the condition is bad and, thus, this is no offer in the eyes of law. Even otherwise, in the entire original / initial written statement it is nowhere prayed by the management that the workman should be directed to join his duties much less at Delhi. Hence, with great respect, I am of the considered view that the authority is not applicable to the facts of the present case.
34. In view of the above discussion, it is held that the services of the workman were terminated by the management and that the workman did not absent himself from his duties. DID No.99/09. 20/28
35. Section 25 F of the Act is as follows:
"25 F. 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
(c) notice in the prescribed manner is served on the appropriate Government for such authority as may be specified by the appropriate Government by notification in the Official Gazette"
36. It is clear from the provision that a person who is in continuous service with the employer for a period of one year or more can be retrenched only after payment of notice pay and DID No.99/09. 21/28 retrenchment compensation as per the provision. As noted above, it is nowhere the case of the management that it paid any amount, much less the notice pay or compensation, to the workman at the time of his retrenchment. Hence, it is held that termination of the services of the workman by the management is illegal.
37. Coming to the issue whether the workman visited the office of the management at Bombay on 24.12.2009 and got the matter settled with the management and received the payment thereon towards his claims arising out of the employment, the case of the management is that the workman himself came to Bombay Headquarter and settled the matter whereas the case of the workman is that he was called/directed by the management to approach the Headquarter at Bombay. It is difficult to believe that the workman would spend money on railway fare etc. on his own when there no guarantee of any settlement. Hence, it is held that the workman was called by the management to Bombay and he himself did not go there.
38. Even otherwise, the plea of settlement is also liable to DID No.99/09. 22/28 be disbelieved in view of the fact that in the second/amended written statement, the management even after the alleged settlement stated that the workman is still in the employment of the management. It is obvious that there was no settlement regarding the present claim as there cannot be any question of the workman continuing as an employee of the management, if there was a settlement.
39. In any case, as noted above, the burden of proving this part of the issue was on the management. In his affidavit filed as examinationinchief, MW1 fully supported the case of the management in this regard and relied upon the settlement as Ex MW1/4. However, significantly, in his crossexamination, MW1 admitted that the cheque given by the management at Bombay Headquater was towards his salary from 01.10.09 to 19.10.09. In his examinationinchief, the workman as WW1 specifically stated that he was forced to sign the settlement for Rs. 4387/. Although, in his crossexamination, he admitted his signatures on the settlement Ex. WW1/M1 (which is the same as Ex. MW1/4), he also stated that he was forced to sign certain documents by the DID No.99/09. 23/28 management at Bombay and was paid an amount of Rs.4387/ by cheque as salary for 20 days. As noted above, the issue is whether the settlement was in respect of claim of the workman arising out of the employment. In view of the categorically admission made by MW1 in his crossexamination that the amount was towards the salary of the workman only, there cannot be any doubt that the settlement was not in respect of the claim of the workman arising out of the employment.
40. In view of above discussion, it is held that the management has failed to prove that the dispute raised in the present claim was settled.
41. In view of the above discussion, both the issues are decided in favour of the workman and against the management.
ISSUE NO. (c) RELIEF
42. In his affidavit filed as examinationinchief, the workman specifically stated that he was unemployed since the date DID No.99/09. 24/28 of his termination despite efforts. In his crossexamination, he admitted that he worked with Jain Uday Hoissery after his alleged termination and volunteered that he worked there for about four days on trial basis but was removed by it after the present management talked to it on telephone. He denied that presently he was working with Sh. Nikhil Gupta at Gandhi Nagar, Delhi. No such person by the name of Nikhil Gupta was summoned by the management to prove this fact. MW1 in his examinationinchief again stated that the workman is gainfully employed at Gandhi Nagar, Delhi as Storekeeper and getting salary of Rs. 15,000/ per month. This testimony of MW1 goes unrebutted, unchallenged and uncontroverted as there is no crossexamination of MW1 in this regard. Hence, this testimony is deemed to be admitted by the workman. However, it is not stated by MW1 since when the workman is working at Gandhi Nagar, Delhi. Even otherwise, since the termination, it is now almost five years It is difficult to believe that the workman would remain idle for the entire period of almost five years.
43. As noted above, in his crossexamination, MW1 DID No.99/09. 25/28 admitted that the workman joined the management in September 2007. It is clear that the workman worked with the management for a little more than two years. Keeping in view the totality of the facts and circumstances of the case, the fact that the management does not appear to be interested in reinstating the workman as it took no action regarding the alleged unauthorised absence and also came up with the pleas of transfer and settlement, which I have rejected, I am of view that it is a fit case where reinstatement should not be granted and, thus, the workman is entitled to compensation in lieu of reinstatement only.
44. MW1, in his crossexamination, admitted that last drawn salary of the workman was Rs.8000/ per month.
45. Keeping in view the totality of the facts and circumstances of the case, I am of the view that interest of justice is best served if the workman is given lump sum compensation of Rs. 1,00,000/ (Rupees One Lac) in lieu of reinstatement, etc.
46. Coming to costs, I have held above that the DID No.99/09. 26/28 management has terminated the services of the workman illegally. Yet, it took the plea of absence from duty which I have disbelieve as above. It also sought to transfer the workman illegally to Ludhiana and even before the Court (in the written statement) insisted that the workman should join his duty at Ludhiana only. The alleged reply Ex MW1/2 to the demand notice of the workman was prepared only after the notice of the present claim was served on the management. I have also disbelieved the plea of settlement taken by the management. In the written statement as well as in the affidavit of MW1 filed as examinationinchief, it is stated by the management that the workman joined the management in November, 2007 only. However, as noted above, in his cross examination, MW1 admitted that the workman joined in September 2007. Hence, the averment in the claim as well as in affidavit of MW1 in this regard is false to the knowledge of the management. Keeping in view the totality of the facts and circumstances of the case, I am of the view that it is a fit case where exemplary costs should be imposed upon the management. Hence, a cost of Rs.1,00,000/ (Rs. One Lac) is imposed upon the management.
DID No.99/09. 27/28
47. The management is directed to pay both the amounts i.e. Rs.1,00,000/ (Rupees One Lac) as compensation and Rs. 1,00,000/ (Rupees One Lac) as costs to the workman within one month from the date of publication of this award failing which it shall be liable to pay interest @ 9% per annum from today till realization / payment on both the amounts.
48. The requisite number of copies be sent to the Govt. of NCT of Delhi for publication of the award. File be consigned to record room.
Dictated to the Steno & announced (RAKESH KUMAR SHARMA) in the open Court on 15.10.2014. POLCXVII/KKD, DELHI. DID No.99/09. 28/28