Delhi District Court
Satir vs M/S. Rajasthan Bombay Transport Pvt. ... on 4 April, 2024
IN THE COURT OF SH. ARUN KUMAR GARG
PRESIDING OFFICER : LABOUR COURT-III
ROUSE AVENUE COURTS COMPLEX : NEW DELHI.
CNR No. DLCT13-001803-2020
Ref. No. F.24(33)/DLC/NE/09/1469 Dated 07.05.2010
LIR No. 739/2020
Sh. Satir @ Satbir Singh S/o Sh. Kartar Singh
(Mentioned at Sr. No. 56 of Annexure A attached with the reference)
C/o Rajasthan Bombay Transport Pvt. Ltd. Employees Union,
Plot No. 27, Shyam Kunj, Gola Khurd,
Najafgarh New Delhi .....Workman
VERSUS
M/s. Rajasthan Bombay Transport Pvt. Ltd.
Welcome Metro Station Office,
Welcome, Delhi-110053 .....Management
Date of Institution of the case : 12.05.2010
Date on which Award is passed : 04.04.2024
Judgment:
1. By this judgment, I will dispose off the reference dated
07.05.2010, received from the office of Deputy Labour
Commissioner, North-East District, Labour Department, Govt. of
NCT of Delhi, in terms of Section 10(1)(c) & 12(5) of Industrial
Disputes Act, 1947, vide Ref. Order No. F.24(33)/DLC/NE/
09/1469 Dated 07.05.2010 in the following terms:-
"Whether Dismissal of Sh. Vikas Mogha and 152 Ors.
(In this Case Sh. Satir @ Satbir Singh S/o Sh. Kartar
Singh whose name is mentioned at Sr. No. 56 of
Annexure A)(as per Annexure 'A') from services by the
management vide orders dated 11.01.2010 is illegal
and/ or unjustified; and if so, to what relief are they
entitled to and what directions are necessary in this
respect?"
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Satir Vs. M/s Rajasthan Bombay Transport
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2. The aforesaid reference was received by this Court on
12.05.2010, whereupon, a joint statement of claim was filed by
43 workmen, out of total 153 workmen, through Rajasthan
Bombay Transport Pvt. Ltd. Employees Union alongwith a list of
workmen containing their signatures.
3. As per proceedings dated 31.01.2020, read with proceedings
dated 14.02.2020, it appears that the statement of claim, which
was initially filed with the signatures of 43 workmen, was
subsequently signed by as many as 82 workmen and claim of 70
workmen was dismissed vide order dated 15.05.2012. Therefore,
in its order dated 31.01.2020, it was observed by this Court that
dismissal of claim of 70 workmen, who had not signed the
statement of claim, should be deemed to be a No Dispute Award
and copy of the aforesaid award was accordingly sent to the
appropriate Govt for publication. Reference, with respect to 82
workmen, was thereafter directed to be separated and to be
registered separately with a direction that the joint statement of
claim shall be kept in the file of the workman Sh. Vikas Mogha.
4. The case of the claimant, as per statement of claim, is that
the management had employed a number of persons to perform
the duty on various posts on the feeder buses, i.e. as Drivers and
Conductors, pursuant to a contract of the management with Delhi
Metro Rail Corporation (hereinafter referred to as 'DMRC') to
ply the feeder buses all over Delhi from DMRC Stations to
various destinations. At the time of inception of the employment,
according to workman, the management has received a sum of
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Rs. 30,000/- from each conductor and Rs. 10,000/- from each
driver as a security and a salary of Rs. 5,500/- was fixed for each
driver and of Rs. 5,000/- was fixed for each conductor for a shift
of eight working hours.
5. It is further the case of the claimant that a written contract
pertaining to the terms and conditions of employment of the
workman was duly signed by the workman and the management,
however, neither any copy of the aforesaid document nor any
appointment letter or for that matter-any other documents such as
I-card etc. were ever supplied by the management to either of its
employees despite repeated requests and demands. It is further
the case of workman that despite the aforesaid contract, the
management did not provide even basic facilities to its
employees, though, the workman performed his duties with
complete dedication and devotion towards the management and
gave no chance of complaint to the management.
6. Further, according to claimant, management had made the
working conditions of its employees worst and kept on putting
undue pressure on the employees as to the out-come of their job.
He submits that the management has pressurized the workmen
union to give at least Rs. 6,500/- per day to the management for
each metro feeder bus, failing which, management threatened
that the respective staff of the bus, who failed to meet the
aforesaid criteria, would be fired and the security deposit shall be
forfeited. In order to further harass its employees, according to
claimant, the management extended the working shifts of its
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employees from eight hours to 12 hours, despite objections of the
workmen and threatened to deduct a sum of Rs. 10,000/- from
the security amount, even if, one round of the feeder bus is
missed by the workman or the vehicle is found damaged under
any circumstances or the vehicle is challaned by the police.
7. In the month of August, 2009, according to workman,
management filed a false and frivolous case against some of the
workmen in Dwarka District Courts, however, pursuant to a
compromise, the same was disposed off as withdrawn on
24.08.2009 on the basis of statements of the parties. On
24.09.2009, according to the claimant, a joint meeting was held
between the employees of the workmen' union and the Director
of the management and it was mutually decided that the salary of
the Drivers and Conductors would be increased @ Rs.1,000/- and
@ Rs.500/- respectively. Besides, it was agreed that in order to
judge the legitimacy of penalty, a meeting shall be held with
Metro Rail Officials. Besides, it was decided that the photocopy
of the ownership documents of the feeder bus would be provided
to the staff so that unnecessary challans may be avoided.
8. Despite the aforesaid settlement, according to workman, the
management did not change its behavior towards the workman
and made the working conditions of the workman unbearable in
violation of settlement dated 24.09.2009. In January, 2010,
according to claimant, the workmen' union has filed a Civil Suit
against the management to enforce the settlement dated
24.09.2009 and during pendency of the aforesaid Suit, the
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management has illegally terminated the services of its
employees, who were the members of the workmen union
without any justifiable cause and reason w.e.f. 07.01.2010 (sic
07.01.2009).
9. It has further been alleged by the claimant that he is
unemployed since the date of his illegal termination by the
management and is facing grave financial hardships. He has
further alleged that the management used to deduct EPF, Gratuity
and ESI etc. from the salary of the workman, however, no such
facility was ever given/provided to the workman. Since,
according to workman, the management had failed to reinstate
the workman into his job, despite a complaint to the Labour
Department dated 02.02.2010, he was constrained to file the
present statement of claim seeking his reinstatement with full
back wages along with salary and other incentives w.e.f.
December, 2009 and the deficient salary for the month of
November, 2009.
10. Written statement to the claim of the workman was filed by
the management on 24.08.2012, wherein, the management has
not denied the existence of any employer-employee relationship
between the parties. Rather, the claim of the workman has been
disputed by the management on the ground that the contract of
the management with DMRC, to ply metro feeder buses, was
terminated only on the ground of indiscipline, ill-service and
disturbance created by the workman. The aforesaid conduct of
the workman, according to management, has already been
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Judgment dated 04.04.2024 Page 5 of 27
explained by the management in the civil suite filed against the
workman, which was withdrawn by the management only on the
basis of the statement of the present claimant on his behalf as
well as on behalf of his associates. It is further alleged by the
management that the services of the workman were engaged by
the management only for the purpose of contract of the
management with DMRC and since the contract between the
management and DMRC has already been terminated, the
contract of employment of the workman automatically came to
an end.
11. It is further the case of the management that despite
negotiations between the management and the representatives of
the workmen' union and consequent settlement, the claimant
failed to mend his ways and had acted in breach of his
obligations under the aforesaid settlement. Moreover, as per
management, the workman continued to engage himself in illegal
and unlawful activities such as violence, stoppage of work and
illegal strike at the cost of public. Under the aforesaid
circumstances, according to management, the claim of workman
is liable to be dismissed, since, it is the management who has
suffered huge loss to the tune of crores of rupees due to the
conduct of the workman. The management has thus prayed for
dismissal of the claim of workman.
12. Replication to the aforesaid written statement of the
management was thereafter filed by the workman, wherein, he
has once again reiterated all the averments made by him in his
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statement of claim and has denied the contrary averments made
by the management in its written statement. Thereafter, on the
basis of pleadings of the parties, following issues were settled by
Ld. Predecessor of this Court vide order dated 27.09.2012:-
(i) Whether the workmen misconducted themselves
thereby causing losses to the management? OPM
(ii) Whether the services of the workmen were
illegally and/ or unjustifiably terminated by the
management? OPW
(iii) Relief.
13. Workman has thereafter examined himself as WW-1 i.e. as
the sole witness in support of his case and tendered his evidence
by way of affidavit Ex.WW-1/A alongwith a receipt Ex. WW-1/1
in respect of Security deposit made by the workman with the
management at the time of joining the services of the
management.
14. Workman was duly cross-examined by Ld. AR of
management and thereafter, on the submissions of Ld. AR for
workman, workman's evidence was closed vide order dated
14.02.2020.
15. Management has thereafter examined its Director Sh. Harish
Kishor Lakhotia as MW-1, who has tendered his evidence by
way of affidavit Ex.MW1/A alongwith the following documents:-
(i) Ex. MW1/1: Copy of Board Resolution dated
05.03.2012.
(ii) Ex. MW1/1A: Copy of Board Resolution dated
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28.10.2022
(iii) Ex. MW1/2 (colly): Copy of certified copy of
order dated 10.09.2008 and individual statement of the
management and joint statements of the workmen.
(iv) Ex. MW1/3 (colly): Copy of certified copy of the
individual statement of the management and joint
statements of the workmen dated 24.08.2009.
(v) Ex. MW1/4: Copy of certified copy of order dated
24.08.2009.
16. MW-1 was duly cross-examined by Ld. AR for workman
and thereafter, on a separate statement of Ld. AR for
management, management's evidence was closed vide order
dated 01.07.2023. On 26.07.2023, when the matter was listed for
final arguments, an application was filed on behalf of the
management to summon the record in respect of the contract
between the management and DMRC, for plying of metro feeder
buses. The aforesaid application of the management was allowed
by Ld. Predecessor of this Court vide order dated 03.11.2023 and
pursuant thereto, Sh. Praveen Kumar, Manager (Traffic
Integration), DMRC was examined by the management as MW-
2, who has tendered the weeding out policy of DMRC dated
27.03.2015 Mark MW2/A, besides, the complaints received by
DMRC from its customers Mark-MW2/B (colly) in respect of
drivers and conductors of feeder buses.
17. MW-2 was also duly cross-examined by Ld. AR for
workman on the same day and thereafter, matter was adjourned
for final arguments. Final arguments on behalf of both the parties
were thereafter heard on 05.03.2024. Besides, written arguments
have also been filed on behalf of both the parties.
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18. It is submitted by Ld. AR for workman that the workman
has been able to prove his illegal termination, not only, by way of
his uncontroverted testimony in the form of affidavit Ex. WW-
1/A, but also, by way of cross-examination of MW-1. He submits
that MW-1, during his cross-examination, has categorically
admitted having terminated the services of the workman w.e.f.
07.01.2010. He submits that though the management has alleged
that the services of the workman were terminated by the
management on account of his misconduct, however,
management has failed to lead any evidence to prove the alleged
misconduct on the part of workman.
19. He further submits that MW-2, who has been examined by
the management to prove the misconduct on the part of the
workman, could not produce the original record summoned from
him. Although, according to him, the photocopies tendered by
him could not be read by the Court in view of the specific
objections on the part of the workman, however, even if, it is
assumed for the sake of arguments that the aforesaid documents
are genuine documents, none of the aforesaid documents relates
to the present workman. Even otherwise, according to him, in
view of specific deposition of MW-2, that he had no personal
knowledge about the facts of the present case, he was not a
competent witness to prove the misconduct on the part of the
workman which could only have been proved by the
management by examining the complainants, in the complaints
purportedly received by DMRC against the drivers and
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conductors of the feeder buses.
20. Under the aforesaid circumstances, since, according to him,
the management has failed to prove any misconduct on the part
of the workman, termination of services of the workman by the
management w.e.f. 07.01.2010 is illegal and since the testimony
of workman, regarding he being unemployed since the date of
termination of his services, has not been controverted during his
cross-examination, the claimant is entitled to his reinstatement
with full back wages and other consequential reliefs.
21. On the other hand, according to Ld. AR for management, in
the absence of any registration certificate of the union or any
resolution in favour of Mr. Vikas Mogha, the claim of the
workman is liable to be rejected for want of proper espousal of
the same by the union, more so, in view of the admission on the
part of workman, during his cross-examination, that he does not
have any proof linking him to the union. Further, according to
him, it has been admitted by the workman that the management
was constrained to file various cases against the workman to
restrain him from holding demonstration/Dharnas and from
obstructing the plying of feeder buses, thereby confirming
dereliction of duty on the part of the workman which amounts to
the misconduct leading to the termination of the contract between
the management and DMRC for plying of metro feeder buses.
22. He submits that pursuant to termination of contract of the
management, to ply feeder buses, with DMRC, services of the
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workman have automatically ceased to continue and hence there
was no termination of the services of workman by the
management, much less, the alleged termination is illegal and/ or
unjustifiable. He submits that admittedly various complaints
were made by the passengers, against the drivers and conductors
of feeder buses, directly to the DMRC for non adhering to the
time schedule, for misbehave, for being rude, for not maintaining
the buses and for non issuance of tickets, which have led to
termination of contract of management with DMRC and hence,
the workman cannot take advantage of his own wrongs by
seeking his reinstatement in the job which has come to an end
pursuant to termination of contract between the management and
DMRC.
23. In rebuttal to the submissions made on behalf of the
workman, it is submitted by Ld. AR for management that there is
no admission on the part of the management regarding
termination of services of the workman w.e.f. 07.01.2010. In fact,
according to him, a bare perusal of the cross-examination of
MW-1 categorically shows that he has never admitted
termination of services of the workman by the management.
Rather, his plea was that it was on account of misconduct on the
part of the workman that the contract between the management
and the DMRC was terminated.
24. He submits that there was no requirement of certificate
and/or affidavit U/s 65 B of Indian Evidence Act, 1872, in
support of weeding policy of DMRC. Moreover, according to
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him, the testimony of MW-2 is sufficient to prove the misconduct
on the part of workman, in view of the explanation offered by
him during his cross-examination for omission in the complaints
about the identity of drivers and contractors, while alleging that
complainants are generally not aware of identities of drivers and
conductors and had filed their complaints identifying bus number
and route number.
25. Thus, according to Ld. AR of Management, the
management has discharged its onus to prove misconduct on the
part of the workman leading to termination of its contract with
DMRC which has resulted in automatic termination of services
of the workman and that the management has never terminated
the services of the workman as alleged, much less, illegally or
unjustifiably. He has thus prayed for dismissal of present claim
of the workman.
26. I have heard the submissions made on behalf of the parties
and have carefully perused the material available on record in the
light of submissions made on behalf of parties. My issue-wise
findings, on the issues settled by Ld. Predecessor of this Court
vide order dated 27.09.2012, are as follows:-
Issue no. (i):Whether the workmen misconducted
themselves thereby causing losses to the management?
OPM
27. Onus to prove the aforesaid issue was upon the
Management. As has already been observed hereinabove, the
management has not disputed the existence of employer-
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employee relationship between the parties. So far as the plea of
workman, regarding illegal termination of his services by the
management w.e.f. 07.01.2010, is concerned, the management
has countered the same alleging that it was due to misconduct on
the part of workman in resorting to violence, illegal strike,
stoppage of work, non-adhering to the schedule for plying feeder
buses and severe indiscipline that the contract for plying feeder
buses, executed between the management and DMRC, was
terminated by DMRC and hence, the services of the workman,
which were availed by the management pursuant to the aforesaid
contract, automatically came to an end.
28. It has further been alleged by the management in its written
statement that the aforesaid conduct of the workman was brought
by the management to the notice of workmen union on several
occasions and despite repeated assurances of the union, the
workman has failed to mend his ways. The aforesaid conduct of
the workman, according to management, is further apparent on a
bare perusal of statements of the workman recorded in civil suits
filed by the management against its workmen, wherein, they have
admitted that they had resorted to illegal strike/dharna etc.
29. A bare perusal of the record reveals that as per written
statement of the management, it is not even the case of the
management that the management had ever served any show
cause notice or, for that matter, conducted any inquiry against the
workman for the alleged misconduct. A perusal of record further
reveals that though the management has placed on record the
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statements of some of the workmen recorded by Ld. Civil Courts,
where the cases, filed by the management against its workmen,
were pending, however, the management has failed to produce
the pleadings of the parties in the aforesaid civil suits to prove
any admission on the part of workmen of alleged acts of
misconduct.
30. None of the statements of the workmen recorded by Ld.
Civil Courts in the aforesaid suits shows that there was any
admission by any of the workmen of their involvement in any
illegal strike, dharna or stoppage of work. A perusal of statement
dated 10.09.2008 Ex. MW-1/2 of some of the workmen shows
that it was stated by them that they had no intention whatsoever
to hold any demonstration, blockade, dharna etc. at various
offices, units, locations belonging to management or at any place
where the bus belonging to management are either plying or
parked. Besides, they had undertaken not to create any
obstruction/demonstration or disruption of services either
themselves or through their agents. It was on the basis of
aforesaid statement of some of the workmen and consequential
statement of Ld. Counsel for management that Ld. Civil Court
had disposed of the Civil Suit bearing no. 661/2008 as
compromised/withdrawn while restraining the defendants/
workmen from holding any dharna/demonstration at any of the
offices, units, locations belonging to management or from
creating any obstruction in plying of buses belonging to
management.
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31. Similarly, in their statement dated 24.08.2009 Ex. MW-1/3,
three of the employees of the management namely Ashok Kumar
S/o Sh. Bhoop Singh, Jitender S/o. Sh. Jai Prakash and Lakh
Ram S/o. Sh. Raj Mahan have undertaken that they shall duly
inform the management before resorting to any strike and shall
merely hold peaceful demonstration, if any, beyond a distance of
100 Mts from the premises of management. It was on the basis
of aforesaid statement of the workmen and consequential
statement of Ld. Counsel for management that Ld. Civil Court
had disposed of the Civil Suit bearing no. 182/2009 as withdrawn
while directing the defendants/workmen to remain bound by their
statement.
32. In any case, the management has failed to prove that either
of the aforesaid statements were even given by the claimant in
the present case.
33. Though, MW-1 in his evidence by way of affidavit has
reaffirmed all the allegations of misconduct on the part of
workman, as per written statement of management, once again on
oath, however, the aforesaid deposition of MW-1 is nothing more
than his self serving statement, in as much as, he has failed to
produce any cogent evidence in support of the same. It is
significant to note in this regard that during his cross-
examination, a specific question was put to MW-1, as to whether
any notice was ever given by the management to either of its
employees for alleged acts of misconduct on their part. Though,
MW-1 has responded to the aforesaid question in affirmative,
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however, he expressed his inability to produce the alleged notices
on the pretext that the same pertain to the period 2008-2010. It is
relevant to note in this regard that the notice of the present
statement of claim was served upon the management way back in
the year 2011 and a written statement was filed by the
management in the year 2012 and hence, the management was
not only bound to annex the aforesaid notices alongwith the
written statement but also to maintain and preserve the entire
record which is relevant for adjudication of the present claim of
the workman.
34. In fact, a bare perusal of the written statement filed on
behalf of management shows that there is no pleading of the
management to the effect that any notice of alleged misconduct
on the part of workman was ever served by the management
upon the workman and such a plea on the part of MW-1 during
his cross-examination is clearly an after-thought.
35. Even otherwise, a careful scrutiny of the testimony of MW-
1 shows that he is not even a reliable witness. It is significant to
note in this regard that though in his evidence by way of
affidavit, MW-1 has tried to take a plea that there was no
agreement between the parties for refund of the amount deposited
by the workman with the management vide receipt Ex. WW-1/1,
however, during his cross-examination, he has admitted that the
amount against the aforesaid receipt was received by the
management as security. Use of the word 'security' for a deposit,
in my considered opinion, itself implies that the same is liable to
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be refunded to the depositor unless it is forfeited as per the
agreed terms and conditions. MW-1 has also tried to take a plea
that the aforesaid security stood forfeited on account of violations
by the workman of the terms and conditions of his employment
agreement, however, in my considered opinion, since forfeiture
of security amounts to a penalty, the same can take place only
after a notice to show cause against forfeiture is served upon the
depositor. No such notice or for that matter any intimation,
served by the management upon the workman regarding
forfeiture of the aforesaid security, has been placed on record by
the management.
36. In fact, the management has even failed to produce and
prove the contract of employment of the workman by the
management despite categorical stand of the workman that
though an agreement in writing was executed between the parties
in respect of his employment by the management, however, the
management had not supplied any copy thereof to the workman.
It is further significant to note that though MW-1 in his evidence
by way of affidavit has denied that any work was taken by the
management from the workman beyond the shift of eight hours,
however, during his cross-examination, he has admitted that he
used to be called upon to perform the duty upto 12 hours as and
when required. In view of the aforesaid discussion, in my
considered opinion, testimony of MW-1 can't form the basis of
any finding to the effect that the workman had misconducted
himself so as to cause loss to the management.
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37. The next piece of evidence, relied upon by the management
in support of its plea that the workman has misconducted himself
so as to cause loss to the management, is various complaints
allegedly made by the customers of DMRC to the DMRC against
the drivers/conductors of the feeder buses, which are Mark MW-
2/B(Colly).
38. It is significant to note in this regard that copy of none of
the aforesaid complaints were ever filed by the management until
conclusion of cross-examination of its star witness i.e. MW-1 on
01.07.2023, despite the fact that the written statement to the
claim of workman was filed by the management way back in the
year 2012. During his cross-examination dated 01.07.2023, MW-
1, while alleging that the DMRC had given written complaints to
the management regarding misconduct of the drivers and
conductors, has expressed his inability to produce the said
complaints on the ground that the same had not been
maintained/kept by the management due to passage of time.
However, as has already been observed hereinabove, the notice
of the present statement of claim was served upon the
management way back in the year 2011 and a written statement
was filed by the management in the year 2012 and hence, the
management was, not only, bound to annex the aforesaid
complaints alongwith the written statement, but also, was bound
to maintain and preserve the entire record which is relevant for
adjudication of the present claim of the workman.
39. In order to prove the aforesaid complaints, management has
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examined a witness from DMRC as MW-2. However, even he
had failed to produce the original record in respect of the alleged
complaints on the pretext that as per the weeding out policy of
DMRC, such complaints are weeded out after a period of six
months. Though, he has produced photocopy of various
complaints, allegedly received by DMRC from its customers
regarding conduct of drivers and feeder buses, however, the same
were not even certified by DMRC. Moreover, admittedly, in
none of the complaints any allegation has been leveled against
the present claimant. Though, it is submitted by MW-2 that the
names of the alleged drivers and conductors are not mentioned in
the aforesaid complaints since the passengers are generally not
aware of identities of drivers and conductors and they are
identified only on the basis of route numbers and bus numbers,
however, no roster of deployment of drivers and conductors
employed by the management for feeder buses, has been
produced either by MW-1 or by MW-2 so as to enable this Court
to ascertain whether either of the aforesaid complaints relates to
the present claimant.
40. In view of the aforesaid discussion, in my considered
opinion, management has failed to discharge its onus to prove
any misconduct on the part of claimant so as to cause any loss to
the management.
41. Issue no. (i) is thus decided against the management.
Issue no.(ii): Whether the services of the workmen
were illegally and/or unjustifiably terminated by the
LIR No. 739/2020
Satir Vs. M/s Rajasthan Bombay Transport
Judgment dated 04.04.2024 Page 19 of 27
management? OPW
42. Onus to prove the aforesaid issue was upon the workman. It
is significant to note that there is no dispute on the part of
management, in its written statement or even in evidence by way
of affidavit of MW-1, about the date on which the services of the
workman stood terminated. A perusal of cross-examination of
MW-1 shows that different reasons have been alleged by both the
parties for termination of contract of management by DMRC.
43. Thus, the only dispute between the parties is about the
circumstances under which the services of workman were
terminated, in as much as, while the workman is alleging illegal
termination of his services by the management, the management
is alleging automatic termination of his services pursuant to
termination of contract between the management and DMRC due
to misconduct of the workman. It has already been observed
hereinabove that the management has failed to prove any
misconduct on the part of workman leading to termination of the
contract between the management and DMRC.
44. Management has also taken a plea that since the services of
the workman were availed by the management only to ply the
metro feeder buses pursuant to the contract of management with
DMRC, after termination of the aforesaid contract, employment
of the workman came to an end. However, the management has
failed to produce or prove the contract of employment executed
between the workman and the management despite specific plea
of the workman that an agreement in this regard was executed
LIR No. 739/2020
Satir Vs. M/s Rajasthan Bombay Transport
Judgment dated 04.04.2024 Page 20 of 27
between the parties in writing. In the absence of production of
the aforesaid contract, management has failed to prove that
services of the workman with the management were co-terminus
with that of the tenure/continuation of agreement between the
management and DMRC.
45. It is significant to note in this regard that MW-1 during his
cross-examination has admitted that the management used to
provide transport services in Delhi, Mumbai and Jaipur and
hence, termination of contract of management by DMRC can't
have the effect of closure of its transport business leading to
automatic termination of services of the workman. It is not even
the case of management that one month's advance notice or any
pay in lieu of such notice or any retrenchment compensation was
paid by the management to the workman before termination off
his services.
46. So far as the plea of management, regarding non-
maintainability of the present claim on account of improper
espousal of the present claim by the workmen union without
authority, is concerned, in my considered opinion, the said
objection is not sustainable in view of the fact that after coming
to the Court, the statement of claim has been duly signed by the
workman and the claim of the workmen, who have failed to sign
the statement of claim, were dismissed by Ld. Predecessor of this
Court.
47. In view of the aforesaid discussion, in my considered
opinion, workman has been able to prove illegal termination of
LIR No. 739/2020
Satir Vs. M/s Rajasthan Bombay Transport
Judgment dated 04.04.2024 Page 21 of 27
his services by the management on the touchstone of
preponderance of probabilities.
48. Issue no. (ii) is thus decided in favour of workman.
(iii) Relief.
49. Workman has prayed for his reinstatement in the job with
full back wages and other consequential benefits.
50. No doubt, Section 11A of Industrial Disputes Act, 1947
gives a wide discretion to this Court in determination of the relief
which can be awarded to a workman after his termination is held
to be illegal, however, it is settled legal position that the aforesaid
discretion is to be exercised by the Court judiciously while taking
into consideration the relevant facts. The relevant factors to be
considered by the Court in determining the question whether the
workman is entitled to reinstatement with or without back wages
and continuity of services or to the compensation in lieu of rein-
statement have been succinctly stated by Hon'ble Supreme Court
in Mehboob Deepak vs. Nagar Panchayat Gajraula (2008) 15
SCC 575 in the following words:
"6. Such termination of service, having regard to the
fact that he had completed 240 days of work during a
period of 12 months preceding the said date, required
compliance with the provisions of Section 6-N of the
U.P. Industrial Disputes Act. An order of retrenchment
passed in violation of the said provision although can be
set aside but as has been noticed by this Court in a large
number of decisions, an award of reinstatement should
not, however, be automatically passed.
LIR No. 739/2020
Satir Vs. M/s Rajasthan Bombay Transport
Judgment dated 04.04.2024 Page 22 of 27
7. The factors which are relevant for determining the
same, inter alia, are:
(i) whether in making the appointment, the statutory
rules, if any, had been complied with;
(ii) the period he had worked;
(iii) whether there existed any vacancy; and
(iv) whether he obtained some other employment on the
date of termination or passing of the award.
XXX XXX XXX XXX
12. It is now well settled by a catena of decisions of this
Court that in a situation of this nature in stead and in
place of directing reinstatement with full back wages,
the workmen should be granted adequate monetary
compensation. (See M.P. Admn. v. Tribhuban [(2007) 9
SCC 748 : (2008) 1 SCC (L&S) 264] .)
13. In this view of the matter, we are of the opinion that
as the appellant had worked only for a short period, the
interest of justice will be subserved if the High Court's
judgment is modified by directing payment of a sum of
Rs 50,000 (Rupees fifty thousand only) by way of dam-
ages to the appellant by the respondent. Such payment
should be made within eight weeks from this date, fail- ing which the same will carry interest at the rate of 9% per annum."
51. The relevant factors in this regard have also been stated by Hon'ble Supreme Court in Jagbir Singh vs Haryana State Agri- cultural Marketing Board (2009) 15 SCC 327 in following words after reference to precedents:
"17. While awarding compensation, a host of factors, inter alia, manner and method of appointment, nature of employment and length of service are relevant. Of course, each case will depend upon its own facts and circumstances."LIR No. 739/2020
Satir Vs. M/s Rajasthan Bombay Transport Judgment dated 04.04.2024 Page 23 of 27
52. The following observations of Hon'ble Supreme Court in U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey [(2006) 1 SCC 479 are also worth quoting since Hon'ble Supreme Court in these observations has also tried to highlight the rationale behind such a shift in trend:
"41. The Industrial Courts while adjudicating on dis- putes between the management and the workmen, there- fore, must take such decisions which would be in con- sonance with the purpose the law seeks to achieve. When justice is the buzzword in the matter of adjudica- tion under the Industrial Disputes Act, it would be wholly improper on the part of the superior courts to make them apply the cold letter of the statutes to act mechanically. Rendition of justice would bring within its purview giving a person what is due to him and not what can be given to him in law.
42. A person is not entitled to get something only be- cause it would be lawful to do so. If that principle is ap- plied, the functions of an Industrial Court shall lose much of their significance.
43. The changes brought about by the subsequent de- cisions of this Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing, is evident.
44. In Hindustan Motors Ltd. v. Tapan Kumar Bhat- tacharya [(2002) 6 SCC 41 : 2002 SCC (L&S) 818] this Court noticed Raj Kumar [(2001) 2 SCC 54 : 2001 SCC (L&S) 365] and Hindustan Tin Works [(1979) 2 SCC 80 : 1979 SCC (L&S) 53 : (1979) 1 SCR 563] but held:
(SCC p. 45, para 16) "16. As already noted, there was no application of mind to the question of back wages by the Labour Court. There was no pleading or evidence whatso-
ever on the aspect whether the respondent was em-
LIR No. 739/2020Satir Vs. M/s Rajasthan Bombay Transport Judgment dated 04.04.2024 Page 24 of 27 ployed elsewhere during this long interregnum. In- stead of remitting the matter to the Labour Court or the High Court for fresh consideration at this distance of time, we feel that the issue relating to payment of back wages should be settled finally. On consideration of the entire matter in the light of the observations referred to supra in the matter of awarding back wages, we are of the view that in the context of the facts of this particular case in- cluding the vicissitudes of long-drawn litigation, it will serve the ends of justice if the respondent is paid 50% of the back wages till the date of rein- statement."
45. The Court, therefore, emphasised that while granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages, there- fore, cannot be the natural consequence."
53. Similar are the observations of Hon'ble Supreme Court in Uttaranchal Forest Development Corpn. v. M.C. Joshi [(2007) 9 SCC 353:
"9. Although according to the learned counsel appearing on behalf of the appellant the Labour Court and the High Court committed an error in arriving at a finding that in terminating the services of the respondent, the provisions of Section 6-N of the U.P. Industrial Dis- putes Act were contravened, we will proceed on the basis that the said finding is correct. The question, how- ever, would be as to whether in a situation of this nature, relief of reinstatement in services should have been granted. It is now well settled by reason of a catena of decisions of this Court that the relief of rein- statement with full back wages would not be granted automatically only because it would be lawful to do so. For the said purpose, several factors are required to be taken into consideration, one of them being as to whether such an appointment had been made in terms of LIR No. 739/2020 Satir Vs. M/s Rajasthan Bombay Transport Judgment dated 04.04.2024 Page 25 of 27 the statutory rules. Delay in raising an industrial dis- pute is also a relevant fact."
54. In view of the aforesaid authoritative pronouncements, in my considered opinion, the claimant can't seek his automatic reinstatement into the services of the management, with or without back wages and continuity of service, merely on the basis of finding of this Court that his services were terminated by the management illegally and this Court is required to take a decision regarding the relief to be granted to the claimant while considering the peculiar facts and circumstances of the case. Some of the relevant factors for the aforesaid determination, in view of the aforesaid authoritative pronouncements, are the length of services of the workman with the management, status of present employment of the workman and the period which has elapsed since the date of termination of services of the workman till the date of award.
55. In the case in hand, the workman has admittedly worked with the management only for small period of less than two years and a period of more than 14 years has elapsed since the date of termination of his services by the management. Considering the longevity of the period which has expired from the date of his illegal termination till the date of this award, it can't be accepted that the claimant would have remained unemployed till date.
56. Thus, in the peculiar facts and circumstance of the present case, in my considered opinion, in view of dicta laid down by Hon'ble Supreme Court in the judgments referred to hereinabove, LIR No. 739/2020 Satir Vs. M/s Rajasthan Bombay Transport Judgment dated 04.04.2024 Page 26 of 27 workman is not entitled to relief of reinstatement. Ends of justice, in my considered opinion, would be served by awarding him a lump sum compensation to the extent of Rs. 70,000/- in lieu of his reinstatement. A lump sum compensation of Rs. 70,000/- is thus awarded in favour of workman in lieu of his reinstatement. Management is directed to pay the aforesaid compensation to the workman within a period of 15 days from the date of publication of the award, failing which, the aforesaid amount shall be payable by the management alongwith simple interest @ 9% per annum from the date of the award till the date of actual payment thereof.
57. Reference dated 07.05.2010 is thus answered in affirmative in the following terms:
"Dismissal of the workman Sh. Satir @ Satbir Singh S/o Sh. Kartar Singh (whose name is mentioned at Sr. No. 56 of Annexure A to the reference) by the manage- ment is illegal and hence, the management shall pay a lump sum compensation of Rs. 70,000/- to him in lieu of his reinstatement within a period of 15 days from the date of publication of the award, failing which, the aforesaid amount shall be payable by the management alongwith simple interest @ 9% per annum from the date of the award till the date of actual payment thereof."
58. Requisite number of copies of this award be sent to the competent authority for publication as per rules. ARUN Digitally by ARUN signed Announced in the open Court on this 4th day of April, 2024. KUMAR Date:
KUMAR GARG This award consists of 27 number of signed pages. GARG 2024.04.04 15:09:19 +05'30' (ARUN KUMAR GARG) Presiding Officer Labour Court-III Rouse Avenue Court, New Delhi LIR No. 739/2020 Satir Vs. M/s Rajasthan Bombay Transport Judgment dated 04.04.2024 Page 27 of 27