Delhi District Court
Ms. Nisha Nakul vs M/S. Jaypee Brothers on 24 January, 2017
IN THE COURT OF SHRI UMED SINGH GREWAL
PILOT COURT / POLCXVII ROOM NO. 22 :KKD
COURTS: DELHI
LIR 1305/16 (Old ID No. 136/13).
Unique ID No.02402C0322592013.
Ms. Nisha Nakul
W/o Sh. Deepak Nakul,
61A, Saini Street, Bhagwan Nagar,
New Delhi110014.
..............Workman
Versus
M/s. Jaypee Brothers,
Medical Publishers (P) Ltd.
4838/24, Ansari Road, Daryaganj,
New Delhi110002.
............. Management
DATE OF INSTITUTION : 01.10.2013.
DATE ON WHICH AWARD RESERVED : 23.01.2016.
DATE ON WHICH AWARD PASSED : 24.01.2017.
A W A R D :
1. Vide Order No. F.24(118)/13/Lab./CD/750 dated
25.09.2013 issued by Government of NCT of Delhi, a reference
was sent to this Court with the following terms:
"Whether the services of Smt. Nisha Nakul
W/o Sh. Deepak Nakul have been
terminated illegally and unjustifiably by the
management after having leave sanctioned
to undergo cancer treatment and if so what
LIR 1305/16 1/18
relief is she entitled and what directions are
necessary in this respect?"
2. Claimant's case is that she had joined the management
as Office Coordinator on 01.07.2008. She was diagnosed with
breast cancer in March, 2012. The Doctor advised her medical
tests including biopsy of the lump. Biopsy test confirmed cancer
and she was advised to consult a qualified oncologist and so she
consulted Dr. Amit Bhargav at Moolchand Hospital, Lajpat Nagar,
Delhi. Dr. Bhargav advised her some more tests to detect the
extent of cancer spread. She consulted a number of oncologist and
decided to got ahead with treatment with International Oncology
Hospital, Fortis, Sector 62, Noida U.P. as she found doctors there
more helpful. Dr. Rajiv Singh advised her for BCS (Breast
Conservative Surgery) Chemotherapy, Radiation, Physiotherapy
and post treatment with special care. She was advised at least 08
cycle of chemotherapy and radiation sittings more than 32 days
followed by physiotherapy. She conveyed the state of affairs to her
immediate superiors / division / department head Sh. Tarun Vij.
As the time frame of the treatment was not clear, she initially
applied for leave for three months, on 04.05.2012 as she was to
undergo surgery on the very next day. She was operated upon BCS
on 04.05.12 and was advised bed rest for the whole month with
intermediate surgery of chemoport implantation. Chemotherapy
LIR 1305/16 2/18
started in June, 2012. Chemotherapy was frequent and hard as the
cycle was of 15 days instead of 21 days. She was not clear how
many days would it take for treatment and hence she had sent e
mails to the management for extension of leave and had also
sought permission from Sh. Tarun Vij on telephone. Her leaves
were approved by the management by email, till 06.02.13. The
cycles of chemotherapy and radiotherapy were over by 05.12.12
and thereafter physiotherapy started. Due to weak health, Breast
Conservative Surgery and Axillary clearance, she was advised
against taking hard work from left hand. She was declared fit to
join the office w.e.f. 06.02.13. When she visited the premises of
the management on 06.02.13 for joining back, she was surprised by
Sh. Tarun Vij who told her that management had terminated her
services from that day itself.
3. Written statement is to the effect that claimant is not a
worklady as per provisions of Industrial Disputes Act as she was
working in a managerial and administrative capacity as her
designation was of Office Coordinator and she was drawing gross
salary of Rs.20,898/ per month.
Regarding detection of breast cancer and consequent
treatment, the contents of statement of claim have been admitted
in para No. 2 of written statement. The factum of taking of leaves
LIR 1305/16 3/18
for three months on 04.05.12 has also been admitted in para No. 3
of written statement with the addition that she was granted leaves
without pay. Moving of leave applications by way of emails and
telephone conversation with Sh. Tarun Vij, completion of treatment
upto 05.12.12 and medical fitness to join duty w.e.f. 06.02.13 have
been admitted in para No. 4, 5 and 6 of written statement.
4. Following issues were framed on 19.02.15:
1). Whether the claimant is a 'workman' as defined u/s
2 (s) of the I.D. Act? OPW.
2) As per the terms of reference.
5. In order to substantiate the case, the claimant tendered
her affidavit in evidence as Ex.WW1/A mentioning all the facts
stated in statement of claim. She relied upon following
documents :
1. Appointed letter dated 25.09.08 issued by the management to the
worklady as Ex.WW1/1
2. Photocopy of Identity card of the worklady as Ex.WW1/2
3. Photostat copy of OPD card dated 10.12.12 as Ex.WW1/3
4. Doctor report dated 19.03.13 as Ex.WW1/4.
5. External Beam Radiotherapy Schedule from 15.10.12 to
05.12.12 as Ex.WW1/5.
6. Summary of Radiation Treatment as Ex.WW1/6.
LIR 1305/16 4/18
7. Discharge summary of Radiation Treatment as Ex.WW1/7 .
8. Doctor report dated 24.09.12 as Ex.WW1/8.
9. Discharge summary of Chemotherapy dated 24.09.12 as
Ex.WW1/9.
10. Discharge summary of Chemotherapy dated 10.09.12 as
Ex.WW1/10.
11. Discharge summary of Chemotherapy dated 27.08.12 as
Ex.WW1/11.
12. Discharge summary of Chemotherapy dated 13.08.12 as
Ex.WW1/12 .
13. Discharge summary of Chemotherapy dated 28.07.12 as
Ex.WW1/13.
14. Discharge summary of Chemotherapy dated 11.07.12 as
Ex.WW1/14.
15. Inpatient Bill dated 27.06.12 as Ex.WW1/15.
16. Inpatient Bill dated 13.06.12 as Ex.WW1/16.
17. Doctor report dated 18.04.12 as Ex.WW1/17.
18. Doctor report after surgery dated 14.05.12 as Ex.WW1/18.
19. Doctor report after surgery dated 09.05.12 as Ex.WW1/19.
20. Laboratory investment report of Max Hospital dated 02.05.12
as Ex.WW1/20.
21. Final test report operation dated 04.05.12 as Ex.WW1/21.
22. Test report dated 03.05.12 as Ex.WW1/22.
23. Cancer marker test report dated 27.04.12 as Ex.WW1/23.
24. Report of PET CT scan dated 30.04.12 as Ex.WW1/24.
25. Cytopathology report dated 23.04.15 as Ex.WW1/25.
LIR 1305/16 5/18
26. Mail sent to management on 15.03.13 as Ex.WW1/26.
27. Mail sent to workman by management dated 02.03.13 as
Ex.WW1/27.
28. Mail reminder dated 15.03.13 as Ex.WW1/28.
29. Mail reply of the management sent to the workman dated
02.03.13 as Ex.WW1/29.
30. Mail of the management for full and final settlement as
Ex.WW1/30.
31. Reply to the mail of the workman dated 27.02.13 as
Ex.WW1/31.
32. Mail of the management for full and final settlement dated
21.02.13 as Ex.WWl/32.
33. Mail sent to the workman dated 06.02.13 as Ex.WW1/33.
34. Mail sent to the management dated 06.02.13 as Ex.WW1/34.
35. Application for leave by mail sent to the management and reply
and acceptance to the said leave sent by management from
04.08.12 to 31.12.12 as Ex.WW1/35.
6. The management examined its Manager (Credit
Control) Sh. Manoj Pokhriyal as MW1. He deposed that the
claimant was working in a Managerial and Administrative capacity
at a salary of Rs.27,000/ per month and due to that reason she was
not a workman. Her responsibility was to manage all the related
work for getting orders from pharma companies and managing
with authors and computation of their royalties, promotion
activities of the product and execution of the orders. Such duty
LIR 1305/16 6/18
required coordination and management with other departments.
She used to report directly to the directors of the management and
hence, she was in a high profile job of managerial and
administrative capacity. Her service was terminated in accordance
with the terms of contract in February, 20133 and she was
repeatedly offered to collect the outstanding dues accrued during
her service tenure but she refused to take with oblique motives.
She is gainfully employed since termination of service.
7. None appeared for management to argue the case.
Issue No. 1.
8. Ld. ARW was assisted by claimant in arguments.
They submitted that claimant's nature of duty was to take out books
from book selves and addresses of the customers from computer in
order to handover to Peons who used to dispatch books to
customers by courier. After dispatch of books, she used to follow
up the matter to know whether the books had reached to the
customers or not. She used to send emails to the prospective
customers telling them about the merits of the books. Her other
duty was to reply emails of Sh. Tarun Vij. An Accountant had left
the job in November, 2011 and since then, she used to feed into
computer the details of the royalty of authors prepared by Sh.
LIR 1305/16 7/18
Tarun Vij. She acted in that capacity till March, 2012. In addition,
she used to attend telephone calls. They unanimously argued that
the above nature of duties suggests that claimant is a workman
within the meaning of Section 2(s) of the I.D. Act, 1947.
On the other hand, case of the management is that the
claimant's designation was OfficerCoordinator and she used to
do all related works for getting orders from pharma companies for
books, to interact with authors and compute their royalties etc.
which was required coordination with other departmental
personnel. She used to act independently.
9. It is the admitted position of both parties and also
proved by appointment letter Ex. WW1/1 that designation of the
claimant was Office Coordinator. Nature of her duty has not been
specified in that letter. She deposed in para No. 2 of affidavit in
evidence that she was not working as a Superior Officer. Instead,
she was being directed by higher officers to do particular work.
She did not use to work independently. In cross examination, she
deposed that her job was to send emails dictated by Sh. Tarun Vij.
She volunteered that her work was more of a Computer Operator.
Even in the previous employment, she used to work as Data Entry
Operator. In order to justify the contention that the claimant was
working in an administrative capacity, MW1 deposed in cross
LIR 1305/16 8/18
examination that 6 or more employees were working under her but
he could not recollect their names. The management did not place
on record any document which may prove that the claimant was
empowered by it to recruit any employee or to take penal action
against the erring employee. It is not the case of the management
that claimant was empowered to write ACRs of employees of the
management. It is also not its case that the claimant used to grant
leaves to the employees. Absence of these powers prove that
claimant was powerless in respect of administrative and financial
matters. Such an employee is definitely a workman under Section
2(s) of the I.D. Act, 1947. So, this issue is decided in favour of the
claimant and against the management.
Issue No. 2.
10. Claimant's consistent stand is that her service was
illegally terminated on 06.02.13. On the other hand, case of the
management in written statement and evidence of MW1 is that
service of the claimant was terminated as per the terms of contract
and she was offered to collect outstanding dues.
Both the parties are unanimous on the point that
service of the claimant had come to an end on 06.02.13. As per
claimant, her service was terminated illegally. Case of the
management is that her service came to an end in accordance with
LIR 1305/16 9/18
terms and conditions of the service. The management did not
place on record copy of terms and conditions to prove this
contention. Perhaps, the management is trying to take benefit of
clause No. 1 (iii) of appointment letter Ex. MW1/1 in which it is
mentioned that claimant's service might be terminated by way of
giving one month notice in writing or by tendering one month
salary in lieu of such notice. But subclause (iii) is part of clause
No. 1. Head of clause No. 1 shows that it pertains only to the
probation period employee which was of six months from
25.09.2008. As per that letter, claimant's probation period would
have come to an end on 24.03.2009. Her service was terminated in
February, 2013. Before termination, the claimant had long been
confirmed in service. So, the management cannot use clause No. 1
(iii) of appointment letter Ex. WW1/1 to justify termination.
Moreover, till 06.02.13, the claimant had worked with the
management for about 3 and half years i.e. more than 240 days.
After completion of 240 days of working with the management, the
management was required to follow the provisions of Section 25F
of the I.D. Act, 1947 which it did not.
The management also took plea that the claimant was
offered dues which had accrued to her upto the date of termination
but she did not collect. The claimant also admitted in cross
examination that she had received a call from management to
LIR 1305/16 10/18
receive outstanding dues. She volunteered that she had been told
by Sh. Vishwanathan of the company that she will not get anything
from the Court and so, she should receive whatever was offered.
Volunteered operation shows that it was not an offer from the
management and rather, it was a threatening call. The
management did not place on record any voucher or cheque which
it may have prepared to handover to the claimant as compensation.
In fact, the management had not offered claimant any
compensation. So, termination of service of the claimant by the
management on 06.02.13 in that manner was totally in violation of
Section 25F of the I.D. Act, 1947 and hence this issue is decided
in favour of the claimant and against the management.
Relief.
11. Even if, the service of a workman has been terminated
illegally, that would not automatically lead to reinstatement with
100% back wages. 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
LIR 1305/16 11/18
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"
12. 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 :
"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
LIR 1305/16 12/18
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".
13. 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 as under:
(a) In the matter reported as Jaipur
Development Authority v. Ramsahai, (2006)
11 SCC 684, the court has stated:
LIR 1305/16 13/18
"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:
LIR 1305/16 14/18"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 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.
LIR 1305/16 15/18Credit 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 11A 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 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 LIR 1305/16 16/18 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."
14. The claimant admitted in cross examination that after termination, she joined a new employer i.e. CBS Publisher w.e.f. September, 2013. So, she remained unemployed only for 7 months. It rules out the possibility of reinstatement.
15. The claimant had worked with the management for three and half years and her last drawn salary was Rs.21,000/ per month. Taking into account all these facts, a lumpsum compensation of Rs.2,00,000/ (Rupees Two Lacs Only) is granted to her. The management is directed to pay the said amount to her within one month from the date of publication of the award, failing which it shall be liable to pay interest on it @ 9% per annum from today till its realization. Parties to bear their own costs. Award is passed accordingly. The reference is answered accordingly.
LIR 1305/16 17/1816. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication.
File be consigned to Record Room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 24.01.17. PILOT COURT/POLCXVII KKD COURTS, DELHI.
LIR 1305/16 18/18