Delhi District Court
Shri Shabir Ali S/O Mohd. Israil vs M/S Adigear International on 3 November, 2015
IN THE COURT OF SHRI NARINDER KUMAR
ADDITIONAL DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER : LABOUR COURTXIX
KARKARDOOMA COURTS : DELHI.
LIR No. 596/2012
Unique Case ID No. 02402C0 360482012
Shri Shabir Ali S/o Mohd. Israil
C/o Readymade Garment Export Employees Union (Regd.)
I441, Karampura
New Delhi - 110 015 ............Workman
Versus
M/s Adigear International
Through General Manager (HR)
A40, Mayapuri Industrial Area
PhaseI, New Delhi 110 064 ............Management
Date of institution of the case : 07.12.2012
Date of passing the award :03.11.2015
Ref. No. F.24 (190/12)/SWD/Lab./56115614 dated 21.09.2012
A W A R D
Vide reference dt. 21.09.2012, Government of NCT, Delhi referred
present dispute between the parties under the Industrial Disputes Act, 1947
(hereinafter referred to as the Act) to this court, for adjudication specifying the
terms of reference as under :
"Whether services of said Sh. Shabir Ali S/o Mohd. Israil have
LIR No. 596/2012 1 of 9
been terminated illegally and/or unjustifiably by the management,
and if so, to what relief is he entitled?"
Case of the claimant:
2. The workman filed present claim against the management claiming
that he joined employment with the management in February 2005 as Sewing
Operator; that his last drawn wages were of 8,112/ per month and that he was
having clean service record. He alleges that he was deprived of legal facilities
like appointment letter, attendance card, leave book, pay slip, weekly off,
bonus, overtime etc. and on his repeated demands for the same, the
management got annoyed and terminated his services illegally on 06.05.2012.
He claims to have worked for more than 240 days in the year preceding his
termination.
The claimant alleges to have filed complaint dated 21.05.2012
against management, before Assistant Labour Commissioner, Hari Nagar,
Delhi. The Labour Inspector advised the management but in vain. Thereafter,
he filed statement of claim before the Asstt. Labour Commissioner but no
settlement could be arrived at. He claims to have remained unemployed ever
since his alleged termination. Hence, this claim. The workman has prayed for
directions to the management to reinstate his service with full back wages,
continuity of service and all consequential benefits.
Version of the management:
3. The management has opposed the claim by filing WS wherein all
the allegations have been refuted specifically and categorically. As per its
LIR No. 596/2012 2 of 9
claim, the workman was appointed on 12.06.2008 and he himself left the job on
31.07.2010 after taking his full and final payment. It has further been asserted
that his last drawn salary was Rs. 6000/ per month. Management has denied
that the claimant worked for more than 240 days continuously in the year
preceding his alleged termination. Hence, it has prayed for dismissal of the
present claim.
Rejoinder :
4. The workman has filed rejoinder controverting the allegations
made in the written statement and reiterating the averments made in the claim.
Points for determination :
5. From the pleadings of the parties, following issues have been
framed on 20.11.2013:
1.As per terms of reference.
Evidence
6. In order to prove his case, workman has stepped in the witness box as his own witness as WW1 and tendered his evidence Ex.WW1/A and documents Ex.WW1/1 and Ex.WW1/2.
On the other hand, the management has examined MW1 Sh. Amit Singhal, its Accountant. MW1 has tendered in evidence his affidavit Ex.MW1/A and documents Ex.MW1/1 and MW1/2.
7. Arguments heard. File perused.
8. ISSUES : As per terms of reference ("Whether services of said Sh. Shabir Ali S/o Mohd. Israil have been terminated illegally and/or unjustifiably by the management, and if so, to what relief is he entitled?") LIR No. 596/2012 3 of 9
9. As noticed above, case of the workman is that he got employed with the management as a 'Sewing Operator' and that management illegally and unjustifiably terminated his services on 06.05.2012. Workman has testified in affidavit that he was in employment with the management since February, 2005.
Management has denied this version of the workman and pleaded that accordingly he got employed with the management on 12.06.2008 and that he left the job on 31.07.2010 after receiving full and final payment. In this way management has denied to have terminated services of the workman w.e.f. 06.05.2012.
10. In support of his case, workman has proved on record his ESI card issued by the ESI Corporation. Same is Ex.WW1/2. As per this document the workman joined employment on 20.11.2006.
Workman has not produced on record any document to suggest that he got employed with the management in February, 2005.
In his cross examination, the management did not dispute the date of appointment of the workman, as recorded in Ex.WW1/2. From this document, it stands proved that the workman joined employment with the management on 20.11.2006 and not in February, 2005.
11. As regard termination of his services, workman has testified that he used to ask the management to provide him the legal facilities like appointment letter, attendance card, leave book, pay slip, weekly offs, bonus and overtime etc. and that the management used to put off the matter while assuring him that LIR No. 596/2012 4 of 9 it would provide all these facilities. Ultimately, the management terminated his services on 06.05.2011, without any reason.
In his cross examination also, the workman stated to have lastly worked with the management upto May, 2012. Admittedly, he was not issued any termination letter by the management, but the same does not adversely effect case of the workman for the reasons which are going to be given herein after.
As noticed above, management has come up with the plea that the workman left the job on 31.07.2010 and received full and final payment, but his services were never terminated on 06.05.2012. In this regard management has examined MW1 Sh. Amit Singhal, its Accountant. In his affidavit Ex.MW1/A, MW1 has testified that the workman left the job on 31.07.2010 and received full and final payment.
In this situation, it was for the management to place on record all the relevant documents. But the management has not placed on record any document to suggest that the workman left the job on 31.07.2010 or that he had received such and such amount by way of full and final payment. MW1 could not tell in his cross examination as to upto which date workman remained in employment with the management. When he was questioned about service record of the workman, MW1 clearly stated that same could not be produced as the management closed its business last year.
It is significant to note that management has not led any evidence in proof of factum of closure of the management establishment and MW1 has admitted this fact.
LIR No. 596/2012 5 of 9 In absence of any documentary evidence, it cannot be said that the workman of his own left the job with the management or received any amount by way of full and final settlement. Case of the workman is that regarding termination of his services, he submitted complaint Ex.WW1/1 to the Assistant Labour Commissioner. Ex.WW1/1 is dated 11.07.2012. In this complaint Ex.WW1/1, the workman alleged that management terminated his services w.e.f. 06.05.2012 and that he had worked for a period exceeding 240 days continuously.
12. MW1 admitted in his cross examination that the workman had filed statement of claim with the labour department and that the management did not participate in those proceedings. There is no explanation for non participation by the management in those proceedings. MW1 further could not tell as to much amount was collected by the workman from the management at the time of finalization of accounts. He candidly admitted that there is no document on record to show that workman received payment by way of full and final from the management.
13. In view of the above discussion, the only conclusion that can be drawn is that the management has failed to establish his defence plea that the workman left the job on 31.07.2010. Rather, it stands proved that the management terminated services of the workman on 06.05.2012.
14. Preconditions laid down in Section 25F of the Act read as under :
"No workman employed in any industry who has been in continuous service for not less than one year under an employer LIR No. 596/2012 6 of 9 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 (or such authority as may be specified by the appropriate Government by notification in the Official Gazette.)"
15. There is nothing on record to suggest that before terminating services of the workman, the management complied with the preconditions as available under Section 25 F of the Act. Therefore, this court finds that the management illegally terminated services of the workman.
Once the court has held that the management illegally terminated services of the workman, the question arises as to which relief the workman is entitled?
RELIEF The normal rule is that in case of illegal termination of services, workman is entitled to reinstatement with full backwages and continuity in LIR No. 596/2012 7 of 9 service except in certain situation. In this regard reference may made to decision in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D. ED.) & Ors. (2013) 10 Supreme Court Cases 324.
16. Herein, workman has testified in support of his claim that his last drawn wages were to the tune of Rs. 8,112/. On the other hand, management has come up with the plea that his last drawn salary was to the tune of Rs. 6,000/. Management could easily produce wages register to prove the rate of wages of the workman. Workman filed an application seeking directions to the management for production of documents vide order dated 01.04.2015. Management was directed to produce all those documents pertaining to the workman, but management has not produced any service record of the workman. Therefore, adverse inference has to be drawn against the management that in case the record was produced it would have gone in favour of the workman and not supported the management on the point of wages last drawn by the workman. So, it is held that last drawn wages of the workman were to the tune of Rs. 8,112/.
17. In the course of arguments, Ld. AR(W) has not presses hard for relief of reinstatement. So, it is to be seen as to what lump sum compensation should be awarded to the workman on account of his illegal termination by the management.
As discussed above, workman remained employed with the management from 20.11.2006 to 06.05.2012. Workman has testified in his affidavit that ever since termination of his services, he could not get any other job. It is in the LIR No. 596/2012 8 of 9 cross examination of the workman that he has four children. The eldest son of the workman is of 7 years. He is residing in a rented accommodation and paying monthly rent @ 1,100/. In his cross examination, he displayed ignorance about the monthly expenditure on his family. Workman is a tailor. It is not believable that during all this period, ever since termination of his services, he remained sitting idle.
18. Having regard to all the facts and circumstances, the nature of employment of the workman, length of service, illegal termination of services by the management and the inconvenience, pain and agony suffered by him, as a result of his illegal termination, this court deems it is a fit case to allow him lump sum compensation to the tune of Rs. 1,50,000/.
19. In view of above findings, the claim is partly allowed for payment of compensation for a sum of Rs. 1,50,000/ with interest @ 9/% from the date of publication of award till its realization.
Reference is answered accordingly. Copies of this award be sent for publication and case file be consigned to record room. ANNOUNCED IN OPEN COURT ON 03rd Day of November 2015 (Narinder Kumar) Addl. District & Sessions Judge Presiding Officer Labour CourtXIX Karkardooma Courts, Delhi LIR No. 596/2012 9 of 9