Delhi District Court
Vishamber Nath Pandey vs M/S Medipol Pharmaceutical India Pvt. ... on 29 August, 2023
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
PRESIDING OFFICER, LABOUR COURT-IX
ROUSE AVENUE COURTS COMPLEX, NEW DELHI
LIR No. 1671/18 CNR No. DLCT13-003223-2018
Sh. Vishamber Nath Pandey
S/o Sh. Ram Tavankal
R/o 621/19, 18 Quarter
Vishwas Nagar, Shahdara
Delhi-110032.
Through:
Shops and Commercial Workers Union (Regd.)
520/B/5, Village Khera, G.T. Road
Near Mansarovar Park
Metro Station Shahdara
Delhi-110095. ......Workman
Versus
M/s. Medipol Pharmaceutical India Pvt. Ltd.
Through its Director Sh. Umesh Gupta
128/5, Swiss House
Vishwas Nagar, New Delhi-110032. ......Management
Date of Institution : 18.08.2018
Date of Award reserved on : 17.08.2023
Date of Award : 29.08.2023
LIR No. 1671/18
Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 1 of 40
REFERENCE U/SEC. 10(1) (C) AND 12(5) OF INDUSTRIAL
DISPUTE ACT, 1947 R/W GOVT. OF NCT OF DELHI,
LABOUR DEPARTMENT NOTIFICATION NO.
F.1/31/616/Estt./2008/7458 DATED 3rd MARCH 2009
AWAR D
BRIEF FACTS AND REASONS FOR DECISION :-
1. Vide this Award the present reference petition referred by the Joint/Deputy Labour Commissioner, East District, Govt. of the National Capital Territory of Delhi shall be disposed which was referred by appropriate Government/Office of Labour Commissioner arising between the parties.
2. The present statement of claim was filed by the workman submitting that initially workman was working as "Helper" with the management since 14.04.1988 and in the year 2001 he was serving as Driver with the management. Legal facilities like wage slip, appointment letter etc. were not provided to the workman by the management. It is submitted that management did not maintain the attendance register, muster roll register and wage register of the workman and deprived the workman of the benefits of the PF and ESI. The management has LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 2 of 40 illegally terminated the services of the workman on 28.12.2016. Any memo, notice or charge-sheet was not issued nor any domestic inquiry was conducted against him. It is submitted by the workman that he has worked for more than 240 days every year with the management preceding the date of termination of his service. Demand notice was also served on the management on 20.01.2018 by way of speed post which was not replied. The termination of workman is illegal and in violation of Section 25F, 25G and 25H of Industrial Disputes Act, 1947. The workman is not gainfully employed since 28.12.2016 which is so pleaded at para no. 15 of the statement of claim and at para no. 16 of evidence by way of affidavit Ex.WW1/A. Hence the workman has prayed for reinstatement in service with continuity and full back wages.
3. In the written statement, it is submitted by the management that it was not in existence in the year 1988 as it was established and registered in the year 1992. The present management got control in the year 1999 only. Sh. Umesh Gupta was appointed as Director on 01.03.2004 prior to which the said Director could not have employed the workman. The workman never served as Driverman in the year 2001. The last employment of the workman with the management was from 01.09.2014 to LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 3 of 40 30.06.2016. The management is maintaining its record through its HR team based at Baddi, Himachal Pradesh and during course of final arguments it was argued by the AR for the management that the service record of the workman was got burnt in a fire at Baddi, Himachal Pradesh. It is submitted that the workman has resigned from the management company and in this way he has abandoned the job. The services of the workman were never terminated. The workman has given resignation to start masala shop by the name of Kashi Ram Masala Store with his brother. The workman has applied for release of his provident fund through letter dated 12.09.2016. A PF settlement letter dated 17.11.2016 was also issued to the workman by the provident fund department of the management before the alleged date of termination. The workman has requested the management for release of PF vide letter dated 12.09.2016 addressed to HR, Manager and the PF department had issued settlement letter dated 17.11.2016. Hence the workman had abandoned the job to run Kashi Ram Masala Store. It is submitted that the workman had claimed termination on 28.12.2016 and after about one year he had approached the Assistant Labour Commissioner, North-East, Jhilmil Colony on 22.12.2017. The Director of the management had to travel throughout India and he resides at Baddi, Himachal Pradesh. It is submitted that the LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 4 of 40 management has appeared through its AR before Conciliation Officer. Workman is running a masala store at Shop no. 4, 621/9, 18 Quarter Chowk, Vishwas Nagar, Delhi-32 and he is earning well. Other averments of the workman are generally denied by the management and it is prayed that the claim of the workman may be dismissed with costs.
4. Rejoinder/Replication is filed by the workman in which workman has reaffirmed the averments made in the claim and denied the averments of the management.
5. On the pleadings of the parties and averments made following issues are framed in the case on 07.09.2021:
1. Whether services of the workman have been terminated illegally and or unjustifiably? OPW
2. Whether the workman is doing the business by the name of Kashi Ram Masala? OPM
3. Whether in view of the finding of issue no. 2 workman is entitled to any compensation? OPM
4. Relief.
6. Workman/Sh.Vishamber Nath Pandey has got examined himself as WW-1 being the sole witness in the case who has relied LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 5 of 40 on documents i.e. Ex.WW1/1 to Ex.WW1/7, Ex.WW1/9 and Ex.WW1/10. Ex.WW1/8 is Mark A being photocopy. WE was closed on 28.04.2022 vide separate statement of AR for workman. Management has got examined MW-1/Sh. Aditya Swaroop as sole witness who has relied on documents Ex.MW1/1, Mark A and Mark B. ME was closed on 01.06.2023 vide separate statement of AR for management.
7. Final arguments are heard on behalf of parties present and record perused.
8. The issue-wise findings are as follows:-
9. ISSUE NO. 11. Whether services of the workman have been terminated illegally and or unjustifiably? OPW
9.1 The burden of proof of the present issue is on the workman. The workman has claimed his date of employment as 14.04.1988 with the management company and he was initially employed by Sh. Umesh Gupta. It is pleaded that the employment was continuous without any service break since the date of his joining. Initially he was appointed as Helper and in the year 2001 LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 6 of 40 he was serving as Driver with the management. To prove his employment on 14.04.1988 the workman has not brought any written evidence. It is trite law that mere oral averments by the workman in his favour is not sufficient evidence to establish his date of employment from 14.04.1988. The workman has produced Ex.WW1/5 which is ESI identity card where his date of entry is mentioned as 01.10.2001. In the said exhibit at the place of address it is mentioned as Delhi-32 which is at the same postal address where service is effected on the management and management had run its business. Ex.WW1/6 which is another ESI identity card mentions date of employment as 05.12.2007 and the name of the management is also mentioned at the place of address. Another document Ex.WW1/7 is a form bears the heading Date of Insured Person which shows that this form was filled for the workman for getting him insured by his employer. This form bears the date 23.09.2010. It is noted that Ex.WW1/5, Ex.WW1/6 and Ex.WW1/7 all of which bears different insurance number. Workman has also produced Mark A which is a provident fund statement from April 2008 to March 2009 in the name of the workman which shows the worker's share alongwith employer's share. Hence in the year 2008 the management was making contribution during course of employment of the workman in the provident fund and which could LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 7 of 40 not have been continued by the management without workman rendering services with the management during such period. Ex.WW1/9 is driving license of the workman. The management has not cross-examined the workman on any of the exhibits from Ex.WW1/5 to Ex.WW1/7. The above documents are proved by the workman on record showing not only employment with the management but also continuity of his employment with the management. Management has claimed the employment of the workman beginning from 01.09.2014 which is falsified by the evidence produced by the workman. The management during course of final arguments has submitted that the workman was employed for some time then he left the services and thereafter re- employed later on and this was done by the workman several times. Such oral averments of the management are not sufficient in absence of necessary documentary evidence in this regard. At each stage of re-employment the management must have paid the dues of the workman which is not proved. Even in the pleadings such date of re-employment and giving the employment on different dates is not stated by the management. It is settled law that in absence of pleadings no amount of evidence could be led in this regard. In the present case the management does not have both the pleadings and evidence regarding the employment of the workman LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 8 of 40 for the alleged various periods. Hence such plea of the management during course of final arguments is unsubstantiated and stands rejected.
9.2 However the workman must prove on record his actual date of employment claimed by him on 14.04.1988 whereas as per evidence produced by the workman the earliest evidence of his employment is Ex.WW1/5 which mentions his date of entry as 01.10.2001. Hence workman has not produced any evidence prior to 01.10.2001 and his date of employment at best could be taken as 01.10.2001 and not earlier to that in view of citation titled Manager, R.B.I., Bangalore Vs. S. Mani & Ors. dated 14 March, 2005 from Hon'ble Supreme Court of India in Appeal (Civil) 6306-6316 of 2003 which has laid down that atleast some evidence must have been proved by the workman to establish his case and oral averments above would not be sufficient in that respect. The relevant para are reproduced herasunder:
26. xxxxxxxxxxxxxx The concerned workmen in their evidence did not specifically state that they had worked for 240 days. They merely contended in their affidavit that they are reiterating their stand in the claim petition.
Pleadings are no substitute for proof. No workman, thus, took an oath to state that they had worked for 240 days. No document in support of the said plea was produced. It is, therefore not correct LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 9 of 40 to contend that the plea raised by the Respondents herein that they have worked continuously for 240 days was deemed to have been admitted by applying the doctrine of non-traverse. It any event the contention of the Respondents having been denied and disputed, it was obligatory on the part of the Respondents to add new evidence. The contents raised in the letters of the Union dated 30th May, 1988 and 11th April, 1990 containing statements to the effect that the workmen had been working continuously for 240 days might not have been replied to, but the same is of no effect as by reason thereof, the allegations made therein cannot be said to have been proved particularly in view of the fact that the contents thereof were not proved by any witness. Only by reason of non-response to such letters, the contents thereof would not stand admitted. The Evidence Act does not say so.
The Appellant, therefore, cannot be said to have admitted that the Respondents had worked for more than 240 days.
NON-PRODUCTION OF THE DOCUMENTS:
Xxxxxxxxxxx It appears that the learned Tribunal considered the matter solely from the angle that the Appellant has failed to prove its plea of abandonment of service by the Respondents.
The question came up for consideration before this Court recently in Siri Niwas (supra) wherein it was held:
"15 A Court of Law even in a case where provisions of the Indian Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against his contentions. The matter, however, would be different where despite direction by a court the evidence is withheld. Presumption as to adverse inference for non-production of evidence is always optional and one of the factors which is required to be taken into consideration in the background of facts involved in the lis. The presumption, thus, is not obligatory because notwithstanding the LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 10 of 40 intentional non-production, other circumstances may exist upon which such intentional non-production may be found to be justifiable on some reasonable grounds."
Referring to the decision of this Court in Indira Nehru Gandhi Vs. Raj Narain [1975 Supp SCC 1], this Court observed:
"19. Furthermore a party in order to get benefit of the provisions contained in Section 114(f) of the Indian Evidence Act must place some evidence in support of his case. Here the Respondent failed to do so."
In Hariram (supra), this Court observed: "11. The above burden having not been discharged and the Labour Court having held so, in our opinion, the Industrial Court and the High Court erred in basing an order of reinstatement solely on an adverse inference drawn erroneously."
As noticed hereinbefore, in this case also the Respondents did not adduce any evidence whatsoever. Thus, in the facts and circumstances of the case, the Tribunal erred in drawing an adverse inference.
BURDEN OF PROOF:
In Range Forest Officer Vs. S.T. Hadimani [(2002) 3 SCC 25], it was stated: "3 In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 11 of 40 or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside.
[See also Essen Deinki Vs. Rajiv Kumar, (2002) 8 SCC 400] In Siri Niwas (supra), this Court held:
"The provisions of the Indian Evidence Act per se are not applicable in an industrial adjudication. The general principles of it are, however applicable. It is also imperative for the Industrial Tribunal to see that the principles of natural justice are complied with. The burden of proof was on the respondent herein to show that he had worked for 240 days in preceding twelve months prior to his alleged retrenchment. In terms of Section 25-F of the Industrial Disputes Act, 1947, an order retrenching a workman would not be effective unless the conditions precedent therefor are satisfied. Section 25-F postulates the following conditions to be fulfilled by employer for effecting a valid retrenchment :
(i) one month's notice in writing indicating the reasons for retrenchment or wages in lieu thereof;
(ii) payment of compensation equivalent to fifteen days, average pay for every completed year of continuous service or any part thereof in excess of six months."
It was further observed:
"14 As noticed hereinbefore, the burden of proof was on the workman. From the Award it does not appear that the workman adduced any evidence whatsoever in support of his contention that he complied with the requirements of Section 25B of the Industrial Disputes Act. Apart from examining himself in support of his contention he did not produce or call for any document from the office of the Appellant herein including the muster rolls. It is improbable that a person working in a Local Authority would not be in possession of any LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 12 of 40 documentary evidence to support his claim before the Tribunal. Apart from muster rolls he could have shown the terms and conditions of his offer of appointment and the remuneration received by him for working during the aforementioned period. He even did not examine any other witness in support of his case."
Yet again in Hariram (supra), it was opined: "10 We cannot but bear in mind the fact that the initial burden of establishing the factum of their continuous work for 240 days in a year rests with the respondent applicants.
Mr. Phadke placed strong reliance on H.D. Singh (supra) to contend that adverse inference was drawn therein for non- production of certain documents. H.D. Singh (supra) was rendered on its own fact. In that case, a Special Leave Petition was entertained by this Court directly from the Award passed by the Industrial Tribunal. Before this Court, both the parties filed affidavits and several documents. The workmen therein categorically disclosed the number of days they had worked in each year. In that case the name of the workman was struck off as he had allegedly concealed his educational qualification; purportedly on the basis of a confidential circular issued by the bank on June 27, 1976 to the effect that the matriculates will not be retained in the list. As the workman therein in reply to the letter of the Bank stated that he was not a matriculate in 1974 and he passed the examination only in 1975, he was not given any work even after July, 1976 without issuing any written notice terminating his services. Holding that the workman had been retrenched from service, as noticed hereinbefore, affidavits of the parties were filed and, thus, some evidence had been adduced. The number of actual days worked by the workman therein was also brought on records by the Respondent. The said decision, thus, having been rendered in the fact situation obtaining therein does not constitute a binding precedent.
CIRCUMSTANTIAL EVIDENCE:
LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 13 of 40The Tribunal also relied upon some purported circumstantial evidence to hold that the workmen had completed 240 days of work in the following terms:
"That apart, the circumstantial evidence also would show that the plea of the abandonment had been taken by the 2nd party only for the sake of defence in this case and it is not a real one. In order to explain the same when we perused the admitted documents Exs. M1 to M7 together with the admitted evidence of MW3 at para 5 of his deposition, we would see that from 3.3.87 till 11.4.90 either almost all the 1st parties before this Tribunal had continuously requested the management for their reinstatement alleging that they served in the 2nd party Bank continuously from April, 1980 to December, 1982. They also pleaded the same in their respective claim petitions before us. But the management as per Exs. M8 dated 8.5.1991 had not denied the alleged claim of continuous service of the 1st parties at their earliest opportunity. But, on the other hand, Ex.M8 would show that for absorption of the 1st parties the 2nd party had put some other conditions and demanded the 1st parties workmen for their signature if they agreed for those conditions. If that be the case, it could be seen that, at the earliest point of time, the 2nd party Bank had not denied the said claim of continue service made by 1st parties. Hence, the documents Exs. M1 to M8 would also disqualify the 2nd party from claiming said plea namely since because the 1st parties had worked temporarily that too only on leave vacancy they are not entitled for any benefits under the provisions of the I.D. Act."
It is difficult to accept the logic behind the said findings.
Only because the Appellant failed to prove their plea of abandonment of service by the Respondents, the same in law cannot be taken to be a circumstance that the Respondents have proved their case.
The circumstances relied upon, in our opinion, are wholly irrelevant for the purpose of considering as to whether the LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 14 of 40 Respondents have completed 240 days of service or not. A party to the lis may or may not succeed in its defence. A party to the lis may be filing representations or raising demands, but filing of such representations or raising of demands cannot be treated as circumstances to prove their case.
9.3 Hence the workman has proved by preponderance of probability that he was employed with the management w.e.f 01.10.2001 and date of his employment was continuous which was proved vide Ex.WW1/5 to Ex.WW1/7 r/w Mark A and the said evidence remained uncontroverted during the deposition of WW1. The claim of the management that the workman was employed earlier also for different periods and when the workman had left the services earlier is not proved by the management in its evidence nor there are specific pleadings of the management in this regard with date, month and year and how the services of the workman were dispensed earlier. The same is also not specifically deposed by MW1 in his evidence by way of affidavit Ex.MW1/A and hence the management could not rebut the finding of continuous employment of the workman beginning from 01.10.2001.
9.4 To controvert the date of employment of the workman the management has relied on document which is marked as Mark A on record. It is a letter of request for release of PF accumulation LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 15 of 40 by the workman to the Manager, HR on 12.09.2016. Since Mark A is already led in the evidence of the workman which is provident fund statement from April 2008 to March 2009 thereby the another Mark A produced by the management during its evidence is renumbered as Mark C during course of final arguments for the purpose of its identification only and be read as Mark C. Hence Mark C is the document on which management relies that the workman has abandoned the services by moving this letter Mark C with request for release of PF accumulation.
9.5 Vide Mark C dated 12.09.2016 the management has pleaded that the workman had abandoned the service of the management. Mark C is an application to the Manager, HR of the management requesting for release of PF accumulation. This letter mentions that the workman has left the services and now he need to withdraw his PF accumulation. Hence vide Mark C the workman has not left the services of the management but there must be some act earlier to Mark C when the workman has left the service of the management. Mark C is only an act on the part of workman requesting for release of his PF accumulation. It is not in the form of resignation nor there is acceptance of any such resignation in reference of Mark C by the management. The claim of the LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 16 of 40 management is that the workman was last employed till 30.06.2016 whereas the workman has claimed that his services were illegally terminated by the management on 28.12.2016. The management has also relied on Mark B which is receipt of claim form for withdrawal of PF from Employee Provident Fund Organisation (EPFO) which mentions at point A "resign". Management claims that since the workman himself mentioned resign in the said document therefore the workman has resigned and abandoned the services. The said document Mark B at point A is not put to WW1 by the management in cross-examination nor the same is proved by the management by calling the officer from the EPFO on the basis of which the word "resign" is recorded on Mark B. Mark B is secondary evidence and on the basis of which document same is recorded is not proved by the management on record nor such witness is called by the management. Hence Mark B is unproved document which could not be relied for the purpose that whether the workman has resigned from the service or not. In fact during course of final arguments both the parties have admitted the fact that the case of the workman for release of his PF has to be sent by the management only and only after confirmation from the management by such written correspondence the amount has to be released from EPFO. Hence it could not be said that Mark B was LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 17 of 40 prepared independent of Mark C and that the management had mentioned that the workman has resigned in the said forwarding of document to EPFO. In view of above it cannot be said that workman had resigned from the service vide Mark B and Mark C. 9.6 Other than this the management has submitted that it could not produce original of Mark C on record because the said document is burnt in fire occurred at its premises. The occurring of fire is not proved by the management on record and what destruction has occurred in such fire has also not been proved. It is submitted by the management that police complaint in this regard was also lodged whereas no police witness is produced by the management on record with regard to nature and extent of fire and destruction. Other than this it is noted that had such original of Mark C was destroyed then how the management could have filed such document on 18.03.2021 whereas the alleged fire is claimed to have been occurred in the premises of the management in the year 2020. How Mark C could be kept by the management at one place and how Mark C was not destroyed in the said fire remains unexplained. Hence it cannot be said that the original of Mark C was destroyed in the alleged fire claimed by the management occurred in its premises after filing of statement of claim. The LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 18 of 40 written statement was also filed by the management on 18.03.2021. One more fact to be noted is that the MW1 has deposed that the fire occurred in the year 2020 had occurred at its factory at Baddi, Himachal Pradesh. MW1 could not answer that since which date this factory was running.
9.7 It is submitted by the management during course of final arguments that its head office is situated at Delhi. Normally at the head office only all the record of personnel are maintained and the HR is usually situated at head office only. The management has not produced any evidence to show its HR department was functioning from Baddi, Himachal Pradesh. Other than this the workman was not employed at Baddi, Himachal Pradesh and it is admitted as correct by MW1 that the workman had worked at Delhi where he used to drive vehicles. He could not depose how the attendance of workman was marked at Delhi. It is admitted that no fire had ever occurred at Delhi. He is not aware if any muster roll exists with the management for the working of workman at Delhi. Hence there is no reason with the management to keep the record of the workman at Baddi, Himachal Pradesh when he is driving the vehicle of the management at Delhi. In fact the management is mandatorily required to maintain muster roll u/Sec. 25D of LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 19 of 40 Industrial Disputes Act, 1947 which it did not maintain as per deposition of MW1 as MW1 cannot be permitted to say that he is not aware about maintenance of muster roll. Hence the management has miserably failed to prove on record that Mark C was destroyed in a fire at Baddi, Himachal Pradesh. It has deliberately not produced the necessary record of the workman. Mark C as secondary evidence is not a proof of resignation of the workman and it cannot be relied for the said purpose as last date of employment of workman as claimed by the management as 30.06.2016 and not 12.09.2016 and therefore management has failed to prove that the workman has resigned at any point of time. The management has failed to prove the secondary evidence Mark C which it had to prove as per text laid down as per citation titled Gurcharan Kaur Chakal v. Nirvair Singh & Ors. in CR No. 5079 of 2013 dated 06.11.2013 from Hon'ble High Court of Punjab & Haryana in which it is clearly laid down that under what circumstances the photostat copy has to be produced and how it has to be proved u/Sec. 63(2) r/w Section 65 of Indian Evidence Act, 1872 as secondary evidence. It is laid down that mechanical process by which such photocopies were made must ensure accuracy of such process. The reasons beyond one's control are to be proved when original document is not produce. Definite LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 20 of 40 conclusion must be reached about the correctness of photostat copy. Other than this the circumstances mentioned u/Sec. 65 of of Indian Evidence Act, 1872 must be proved warranting leading of secondary evidence. When the photocopy does not appear above suspicion then it cannot be admitted. Necessary foundation for leading secondary evidence in the shape of photostat copy must be laid down.
9.8 Reliance was also placed in the said case on case titled Smt. J. Yashoda v. Smt. K. Shobha Rani 2007(2) RCR (Civil) 840 wherein it is laid down by Hon'ble Supreme Court of India while dealing with admissibility of photocopy of a document that when the original of such document was in possession of third party then the conditions mentioned u/Sec. 65 of Indian Evidence Act, 1872 must be satisfied failing which the photocopy could not be allowed as secondary evidence. So long as higher or superior evidence is within reach/possession then no inferior proof in relation to it shall be permitted. Secondary evidence cannot be admitted without non-production of original being first accounted for in such a manner as to bring it within one or other of the cases provided under the Section. The factual foundation for non- production of original document must be laid down. The secondary LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 21 of 40 evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of original. Mere admission of a document in a evidence does not amount to its proof. Mere denial to produce original document without foundational facts does not entitle a party to lead secondary evidence. The Hon'ble Supreme Court of India has cautioned for admitting secondary evidence of a photostat copy of cases falling under Clause (c) of Section 65 of Indian Evidence Act, 1872 where the original document is alleged to have been lost or destroyed by the party in whom it created an enforceable right then to a person who seeks to produce photostat copy having no interest in manipulating it. It was obligatory on the part of the party to lead secondary evidence to first establish loss of original document beyond all reasonable doubt. It may be possible that secondary evidence of such a document may be tampered with or changed and it would be against public policy to take a chance of running a risk of fraud being committed it was so laid down in case titled Benga Behra v. Braja Kishore Nanda 2007 (3) RCR (Civil) 240 from Hon'ble Supreme Court of India. It was further laid down that it would be normally unsafe on mere asking to allow production of photocopies as secondary evidence and it may not be clear as to whether these are copies of original. Authenticity of photostat document must be established when there is no proof of LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 22 of 40 its accuracy or its having been compared with the original then it cannot be considered as secondary evidence. Even when permission to produce secondary evidence is granted it is open to the parties to argue about its probative value. The relevant citation is reproduced hereasunder:
This issue has arisen before the Hon'ble Supreme Court and various High Courts on various occasions and has been answered in different but mutually reconciliable ways based on facts of each case. Thus, it is desirable to figure out the basic principles enunciated by the courts in this regard with a view to answer following questions:
1. In what circumstances Photostat Copy can be tendered in evidence?
2. Whether photostat copy of a document comes within the meaning & definition of 'secondary evidence' as contained in section 63 of the Act?
Since, the questions are inextricably linked these will be answered together. However, before discussing the judgments on the issue, it would be appropriate to examine the relevant provisions of the Act reproduced below wherein in fact the answer to questions raised above lies:
Section 63. Secondary Evidence.- Secondary evidence means and includes--
(1) Certified copies given under the provisions hereinafter contained;
(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) Copies made from or compared with the original;LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 23 of 40
(4) Counterparts of documents as against the parties who did not execute them;
(5) Oral accounts of the contents of a document given by some person who has himself seen it.
Section 65. Cases in which secondary evidence relating to documents may be given.- Secondary evidence may be given of the existence, condition or contents of a document in the following cases--
(a) when the original is shown or appears to be in the possession or power--
of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;
LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 24 of 40(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case
(g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
Photostat copy of a document is generally sought to be admitted as secondary evidence by virtue of Section 63 (2) of the Act which provides that copies of original made from mechanical process ensuring in itself the accuracy of such copies are admissible as secondary evidence. While the photostat copies can be used for court purposes as evidential documentation but it is desirable that original be examined in all possible cases but when original is not available for reasons beyond one's control, photostat copy of a document may be examined to reach definite conclusions. However, before that the party seeking to produce the same must show that any of the circumstances mentioned in Section 65 of the Act exists warranting leading of secondary evidence. The controversy is generally with regard to cases falling under clauses (a) or (c) of Section 65 of the Act wherein the original is alleged to be lost or in the possession of opposite party. The Hon'ble Supreme Court in Ashok Dulichand v. Madhavlal Dube 1975(4) SCC 664, while dealing with a case under clause (a) of Section 65 of the Act, upheld the decision of the High Court wherein it recorded a finding that the photostat copy did not appear to be above suspicion and could not be admitted. In arriving at this finding, considered the facts that there was no other material on the record (except the affidavit of appellant himself) to indicate that the original document was in the possession of respondent No. 1, the appellant failed to explain as to what were the circumstances under which the photostat copy was prepared and who was in possession of the original document at the time its photograph was taken;
LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 25 of 40respondent No. 1 in his affidavit denied being in possession of or having anything to do with such document. Thus, it was held that no foundation had been laid by the appellant for leading secondary evidence in the shape of the photostat copy.
In Smt. J. Yashoda v. Smt. K. Shobha Rani 2007 (2) RCR (Civil) 840, the Hon'ble Supreme Court while dealing with issue of admissibility of photocopy of a document, original whereof was in possession of third party, came to a conclusion that since, the conditions mentioned in Section 65 of the Act were not fulfilled, photostat copy could not be allowed to be produced as secondary evidence. The court relied on Ashok Duli Chand's case (supra) and observed as under:
"The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section."
The Hon'ble Supreme Court in H. Siddiqui (Dead) by LRs. v. A. Ramalingam 2011 (2) RCR (Civil) 696 while dealing with Section 65 of the Act opined that though the said provision permits the parties to adduce secondary evidence, yet such a course is subject to a large number of limitations. In a case where the original documents are not LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 26 of 40 produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It has been further held that mere admission of a document in evidence does not amount to its proof. Therefore, it is the obligation of the Court to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.
Recently in U. Sree v. U. Srinivas 2013 (1) RCR (Civil) 883, the Hon'ble Supreme Court has held that mere denial by the party to produce the original document in whose possession it is stated to be does not lay down foundational facts for producing secondary evidence. Likewise in cases falling under clause (c) of Section 65 of the Act wherein the original document is alleged to be lost or destroyed and a photostat copy is sought to be produced, the courts have cautioned against eager admissibility of such copies, specifically when it is lost or destroyed by the party in whom it created an enforceable right and who seeks to produce photostat copy of the same whereas, on the other hand, if a photostat copy is produced by a party who has no interest in manipulating it, it is generally admitted as secondary evidence.
While dealing with a case falling under clause (c) of Section 65 of the Act, the Hon'ble Supreme Court in Benga Behra v. Braja Kishore Nanda 2007 (3) RCR (Civil) 240, wherein the Will was sought to be proved by way of secondary evidence, observed that it was obligatory on the part of first respondent to establish the loss of original will beyond all reasonable doubt. Since his testimony in this regard remained uncorroborated, therefore, photocopy could not be admitted as secondary evidence. This Court in Mukesh Kumar alias Motta v. State of Haryana 2011 (1) RCR (Civil) 675 while relying on Division Bench judgment of Patna High Court in Chaudhuri Janardan Parida and Ors. v. Prandhan Das, AIR 1940 Patna 245 (DB) observed as under:
LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 27 of 40"Therefore, it may be noticed that to permit secondary evidence of such a document which has been destroyed by a person in whose possession it was and in whose favour it created an enforceable legal right or an obligation is normally not to be allowed as secondary evidence. The secondary evidence of such a document may be tampered with or changed and it would be against public policy to take a chance of running the risk of fraud being committed. Besides, the destruction of the instrument may make a party liable for a contract which had either not been agreed to or had been rescinded with the destruction of document. Therefore, secondary evidence in such circumstances where document itself has been destroyed by the person in whom it created an enforceable legal right or an obligation is normally not be allowed."
These observations were made in a case where the person seeking to produce the photostat copy could not explain that from where he got the photostat. A doubt was, thus, created on authenticity of the photostat copy. It was therefore observed:
"Photostat copies of documents can be prepared by manipulation and presented as original. Therefore, it would normally be unsafe on the mere asking to allow production of photostat copies as secondary evidence. These are admittedly not certified copies of the original and it is not clear as to whether these are copies of the original"
Thus it may be said that before being admitted as secondary evidence being copies prepared by mechanical process, the authenticity of the Photostat document has to be established where photostat copy of a document is produced and there is no proof of its accuracy or of its having been compared with or its being true reproduction of the original, it cannot be considered as secondary evidence. In other words, photostat copy of a document is not admissible as secondary evidence unless proved to be genuine or is admitted by opposite party. Clause (2) of section 63 has two requirements first - the copies should be prepared from LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 28 of 40 a mechanical process and second - the process should be such which in itself ensures accuracy of copy. While every Photostat copy is prepared by mechanical process however, it may or may not be accurate, therefore its admissibility as secondary evidence in view of clause (2) of Section 63 of the Act is subject to proof of the fact that it was a correct copy of original document. Similar observations have been made by this Court in Prem Lata v. Dwarka Prasad and Ors. CR No. 4913 decided on 23.08.2013 and Rajasthan Golden Transport Company v. LRs of Amrit Lal, 1998 (3) RCR (Civil) 95. Therefore, even when the permission to produce photostat copy of a document as secondary evidence is granted, it is open for the parties to argue about the probative value attached to it. When it is shown that photostat copy by itself is a suspicious document, it cannot be relied upon. Following observations of the Hon'ble Madhya Pradesh High Court in Kanchan Malhotra v. Yashvir Singh 1986(1) HLR 387 are relevant in this regard:
"Now, it may be stated that the photostat copy could not just be readily accepted as a reliable piece of secondary evidence unless there was clinching proof that (i) this photostat copy truly represented some original or its counter-foil, (ii) this photostat copy was prepared by mechanical process by someone at some particular place on any particular date and at any particular time and (iii) the original or its counter-foil from which this photostat copy was prepared, was produced at the relevant time by any person in custody of such document."
Since the aforesaid requirements were not met in that case, it was held that Photostat copy itself being suspicious document, no probative value could be attached to it.
The proposition of law laid down in aforesaid judgments provides answers to the questions raised above. Thus a Photostat copy of a document can be produced in evidence only when it is alleged and proved that the original was in existence and is lost or destroyed or is in possession of opposite party who failed to produce it or in any other circumstances mentioned in section 65 of the Act. These foundational LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 29 of 40 facts, however, are to be proved by leading cogent evidence. As regards the question whether photostat copy of a document comes within the meaning & definition of 'secondary evidence' as contained in section 63 of the Act, there cannot be absolute answer because every photostat copy may not be accurate. For this purpose the probative value of the Photostat copy has to be proved independently. The principles culled out from the aforesaid discussion are summarized below:
a) Photostat copy of a document can be allowed to be produced only in absence of original document.
b) When a party seeks to produce Photostat copy it has to lay the foundational facts by proving that original document existed and is lost or is in possession of opposite party who failed to produce it. Mere assertion of the party is not sufficient to prove these foundational facts.
c) The objections as to non existence of such circumstances or non existence of foundational facts must be taken at earliest by the opposite party after the photostat copy is tendered in evidence.
d) When the opposite party raises objection as to authenticity of the Photostat copy its authenticity has to be determined as every copy made from a mechanical process may not be accurate. Both the requirements of clause (2) of section 63 are to be satisfied.
e) Allowing production of Photostat copy in evidence does not amount to its proof. Its probative value has to be proved and assessed independently. It has to be shown that it was made from original at particular place and time.
f) In cases where the Photostat copy is itself suspicious it should not be relied upon. Unless the court is satisfied that the Photostat copy is genuine and accurate it should not be read in evidence.
g) The accuracy of photostat copy shall be established on oath to the satisfaction of court by the person who prepared such copy or who can LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 30 of 40 speak of its accuracy. The abovesaid principles must be followed by the courts while admitting a photostat copy as secondary evidence and assessing its probative value.
In the case in hand, the photostat copy of the alleged family settlement dated 02.03.1995 is sought to be produced by way of secondary evidence. Vide impugned order, the trial Court has dismissed the application moved by the petitioner and others on the only ground that there is no disclosure about the loss of the alleged family settlement dated 02.03.1995 in the plaint. Proper opportunity has not been afforded to the petitioner to lay down foundation for leading secondary evidence.
9.9 In view of the above it is held that the management herein has miserably failed to prove on record the foundational facts of leading secondary evidence and the non-availability of original document of Mark C with the management is found doubtful. Further, management has also failed to prove the correct reproduction of Mark C by mechanical process. Further, Mark C is in the form of declaration of resignation of another date and therefore it cannot be termed as resignation for any purpose. The Mark B has also not been proved that on what basis the word "resign" is written in the same and thereby management herein has failed to prove on record that the workman herein at all resigned from the services of the management. There was no reason with the management to keep the documents of the workman at Baddi, Himachal Pradesh when the workman was working at Delhi and LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 31 of 40 head office of management was also situated at Delhi. The rules and bye laws of the management are also not produced that how such administration was conducted by the management at various places. In fact the muster roll of the workman must have been available only at Delhi which could be produced by the management keeping in view Section 25D of Industrial Disputes Act, 1947.
9.10 In such view of the matter the workman has proved by preponderance of probability that he was employed with the management since 01.10.2001 as reflected in Ex.WW1/5 and his service was continuous. However the workman has not called muster roll from the management nor produced any other evidence to show that he was in the rolls of the management and he worked daily from 01.07.2016. Workman has failed to establish his service till 28.12.2016 and merely oral averments of the workman would not be sufficient. However Mark C which is document produced by the management can be read against the management to the fact that workman was continuously in touch with the management on the date of preparation of Mark C on 12.09.2016 and therefore the workman was not running away from the services of the management. Workman has proved his valid driving licence vide LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 32 of 40 Ex.WW1/9 that he could have driven the vehicle of the management. The date of birth is proved by the workman vide Ex.WW1/10. The date of birth of workman is reflected as 05.05.1971 on the basis of which the date of retirement of the workman would be on 04.05.2031 keeping in view the period of employment of the workman as 60 years. In these circumstances of the case it is held that the management has illegally and unjustifiably terminated the service of the workman not on 28.12.2016 but on 01.07.2016 whereas the last date of employment of the workman with the management was 30.06.2016 which is the date admitted by the management as last date of employment of the workman with the management. Keeping in view the above established facts on record it is held that the services of the workman were illegally and unjustifiably terminated by the management on 01.07.2016 and not as claimed by the workman on 28.12.2016. The workman has no evidence on record to show that he has worked till 28.12.2016 and mere self serving oral affirmations in this respect cannot be believed. Hence the date of illegal termination of workman is taken as 01.07.2016 and accordingly relief is moulded u/Sec. 11A of Industrial Disputes Act, 1947. Accordingly present issue is decided in favour of the workman and against the management.
LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 33 of 40 10. ISSUE NO. 22. Whether the workman is doing the business by the name of Kashi Ram Masala? OPM 10.1 The burden of proof of the present issue is on the management. In cross-examination of WW1 it is denied that workman had resigned from the management company for doing the work of business of spices with his brother. It is deposed that WW1 never worked in the business of spices with his brother and he was unemployed till date. After unemployment he used to sit for 1-2 hours in the shop of his brother on charity basis and he also used to provide services at the Mandir of Balaji Maharaj. On such denial by the workman running the masala shop it cannot be said that the workman was running such shop. Though the WW1 has admitted that he was sitting at the masala shop of his brother for 1- 2 hours from which it cannot be inferred that the workman was constructively employed. The management has not got any evidence to show that workman was gainfully employed equal to level of service to the last job served. The oral averments of the management in deposition of MW1/A that the workman was running masala shop at Shop no. 4, 621/9, 18 Quarter Chowk, Vishwas Nagar, Delhi-32 has no basis. It is only a conjuncture of LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 34 of 40 the management. The oral averments of the management are rebutted oral deposition of the workman and in absence of any document or any other substantive evidence it cannot be said that the workman was gainfully employed at any point of time after date of his illegal termination. Hence it is held that management has failed to prove the gainful employment of the workman from the date of his alleged illegal termination on 28.12.2016 and accordingly present issue is decided against the management and in favour of workman.
11. ISSUE NO. 3 and ISSUE NO. 43. Whether in view of the finding of issue no. 2 workman is entitled to any compensation? OPM AND Relief.
11.1 The findings under issue no. 1 and 2 above, are equally applicable under the present issue and be read as part and parcel of the present issue. The same are not repeated herein for the sake of brevity.
11.2 The workman has pleaded in the statement of claim at LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 35 of 40 para no. 15 and para no. 16 of the evidence by way of affidavit Ex.WW1/A that he is unemployed till date since the date of his illegal termination is discharged by the workman by so stating in his evidence by way of affidavit which is hence shifted on management for which management failed to substantiate this fact in evidence. Hence it is held that workman was unemployed during the period of his illegal termination. The relevant citation titled Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya and Ors., (2013) 10 SCC 324 is reproduced hereasunder:
"38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
38.2 The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
38.3 Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 36 of 40 was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
38.4 The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then, it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award or full back wages.
38.5 The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 37 of 40 premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
38.6 In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-a-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of frame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees".
Workman is therefore held entitled to compensation from the management. Accordingly present issue is decided in favour of workman and against the management.
12. ISSUE NO. 4: RELIEF 12.1 In view of findings under issues above it is held that this case falls under the category of illegal termination in violation of LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 38 of 40 principle of Sec. 25F of Industrial Disputes Act, 1947 without any justification and non-compliance of principles of natural justice. Accordingly workman is held entitled and has been granted the following reliefs u/Sec. 11A of Industrial Disputes Act, 1947 among other provisions of law as under:
(i) Immediate reinstatement with management from the date of publication of this Award with;
(ii) Full back wages since 01.07.2016 from the management from the date of his illegal termination @ minimum wage as applicable on 01.07.2016 per month upto the date of publication of Award with;
(iii) All consequential benefits from the date of his termination till the date of his reinstatement with management.
(iv) All the due amount be paid by the management within one month of the date of publication of present Award with interest @6% per annum from the date of publication till its realization.
Reference stands answered in the aforesaid terms.
12.2 A copy of Award be sent to the Competent Authority/appropriate Government i.e., Joint/Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area LIR No. 1671/18 Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 39 of 40 concerned for publication which thereafter become enforceable u/Sec. 17A of Industrial Dispute Act, 1947. Award is passed accordingly and claim stands disposed in above terms.
File be consigned to record room after due compliance.
Announced in the open Court
on 29.08.2023. JOGINDER Digitally signed by
JOGINDER PRAKASH NAHAR
PRAKASH Date: 2023.08.29 16:41:41
NAHAR +0530
(JOGINDER PRAKASH NAHAR)
PRESIDING OFFICER LABOUR COURT-IX
ROUSE AVENUE COURT COMPLEX/NEW DELHI
LIR No. 1671/18
Vishambhar Nath Pandey v. M/s. Medipol Pharmaceutical India Pvt. Ltd. Page 40 of 40