Delhi District Court
Between vs The on 26 August, 2011
IN THE COURT OF DR. SHAHABUDDIN, PRESIDING OFFICER,
LABOUR COURT NO. IX, KARKARDOOMA COURTS, DELHI
I.D. No.172/99 (old), 309/10 (new)
Unique Case ID No. 02402C20008561999
BETWEEN
THE WORKMAN
,
Shri Maheshwar Singh C/o Janvadi General Kamgar Mazdoor Union, E26,
Raja Bazar (Old Qrts.), Baba Kharak Singh Marg, New Delhi - 1.
AND THE MANAGEMENT OF
M/s. Indomag Steel Technology Ltd., 81/1, Adchini Sri Aurobindo Marg, New
Delhi 17.
Date of Institution : 20.03.1999
Date on which award reserved : 24.08.2011
Date of passing of award : 26.08.2011
A W A R D
1.The Secretary (Labour) Govt. of the National Capital Territory of Delhi has referred this dispute arising between the parties named above for adjudication to this labour court vide notification No. F. 24/(502)/ 99/Lab./992125 dated 08.03.1999 with the following terms of reference.
"Whether the services of Shri Maheshwar Singh have been terminated illegally and/or unjustifiably by the management; and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. The main facts as mentioned in the statement of claim of workman are to the effect that he had been working regularly with the management since 26.08.1996 at the post of 'Draftsman' drawing last salary in sum of Rs. 6090/ per month; that he worked honestly and sincerely during the tenure of his service with the management; that on 03.08.1998 some officials of the management namely S/Sh. C.D. Sugdan, Manish Kumar, P.K. Kulkarni and two I.D. No.172/99 (old), 309/10 (new) Page Page numbers of 13 Security Guards respectively had forcibly took his signatures on some typed and blank papers under threat and also insisted for his resignation which was refused by him; that he was terminated by the management without any written orders which amounts to retrenchment without following due procedure and the management had failed to tender retrenchment compensation to him as provided under the provisions Section 25 F of Industrial Disputes Act, 1947 (in short I.D. Act); that the persons junior to him were retained by the management whereas his services were illegally terminated; that he had completed 240 days of continuous service with the management; that he was unemployed since the date of his illegal termination; that he had submitted a demand notice dated 04.08.1998 to the management by regd. post but despite that neither he was taken back on duty nor any attention was paid by the management to his demand notice; that in this way, his services have been terminated by the management illegally and without any justified reasons. Lastly, a prayer was made for his reinstatement with back wages and other consequential benefits as per law.
3. The averments of statement of claim have been strongly denied in the written statement (in short WS) filed on behalf of the management.
4. It has been mentioned in the WS, interalia, that the claimant was not a workman as defined under Section 2(s) of I.D. Act; that he was preparing and doing the engineering drawings for management from time to time based on his individual skills; that he was not working under direct control and supervision of any other person and performed his job on independent basis; that he was drawing salary of Rs. 6100/ per month; that his services were terminated by the management as per terms and conditions of his appointment letter; that management had lost confidence in him and in his working ability; that the management had duly informed him about the termination of his services as per I.D. No.172/99 (old), 309/10 (new) Page Page numbers of 13 the terms and conditions of the employment vide his employment letter dt. 03.08.1998; that he had been given three months' notice pay along with other outstanding dues which he refused to accept at his own will; that nothing was due to him against the management. Lastly, a prayer was made to dismiss his statement of claim.
5. In the rejoinder filed to WS of management, averments made in the statement of claim of the workman were reiterated and those made in the WS were denied.
6. On the basis of the pleadings of the parties, following issues were framed on 21.12.1999:
1. Whether the claimant was a workman?
2. Whether the services of the claimant were terminated illegally and/or unjustifiably?
3. Relief.
7. The workman examined himself earlier as WW1 and also filed his affidavit Ex. WW1/A on record and then evidence of the workman was closed.
8. From the side of the management, MW1 Sh. I. VenuGopalan was examined who also filed his affidavit Ex. MW1/A on record in support of the contentions of the management. MW2 Sh. Sudhir Gopal Agarwal was also examined in support of case of management. He also filed his affidavit Ex. MW2/A on record and then the evidence of the management was also closed.
9. It is pertinent to mention here that vide an award passed earlier by Ld. Predecessor of this court dated 09.05.2006, the workman was not found entitled to claim any relief against the management. It was also held by Ld. Predecessor pertaining to issue no. 1 that the claimant herein was not a 'workman' as defined u/s 2(s) of I.D. Act.
10. The workman challenged that award before Hon'ble Delhi High Court. I.D. No.172/99 (old), 309/10 (new) Page Page numbers of 13 Vide order of Hon'ble Delhi High Court dated 19.04.2010 passed in W.P. ( c) no. 12886/2006, this case was remanded back to this court for fresh adjudication on merits in terms of reference after treating the petitioner i.e. claimant as a workman employed on the post of 'Draftsman' with the management. In this way, issue no. 1 had been decided by Hon'ble Delhi High Court in favour of the claimant/workman by treating him as a workman.
11. Now only two remaining issues remain to be decided by this court on merits in this matter.
12. As per statement of workman made before this court on 27.09.2010, he relied upon his affidavit already exhibited as Ex. WW1/A on record filed by him before this court on 23.01.2002 in lieu of his examination in chief and also relied upon the documents as mentioned in that affidavit. i.e. Ex. WW1/1 to WW1/3. Accordingly, the workman was crossexamined before this court on 27.09.2010 by Ld. Authorised Representative for management (in short Ld. ARM) on the basis of that affidavit and those documents and thereafter, the remaining evidence of the workman was closed.
13. Ld. Authorised Representative for the workman (in short Ld. ARW) submitted orally before this could on 28.07.2011 in the presence of other side that Sh. Sudhir Gopal Agarwal was to be treated as MW2 in this case instead of MW1 because Sh. I. VenuGopalan had earlier been examined on behalf of management as MW1 on 20.09.2004. Accordingly, Sh. Sudhir Gopal Agarwal got himself examined on oath before this court as MW2. He was cross examined at length by Ld. ARW on 28.07.2011 and on 05.08.2011 respectively on the basis of his affidavit already filed on record as Ex. MW2/A and thereafter the remaining evidence of the management was also closed.
14. As mentioned above, MW1 Sh. I. VenuGopalan was earlier examined in this case on behalf of management and he had also filed his affidavit earlier as I.D. No.172/99 (old), 309/10 (new) Page Page numbers of 13 Ex. MW1/A on record.
15. Oral final arguments were submitted from both sides which were almost the repetitions of averments of pleadings of both the sides on record. During the course of oral final arguments, Ld. ARM made one more submission that if this court decides the remaining issues in favour of workman, then a one time lump sum compensation may be awarded in favour of workman towards all his claims instead of making order of his reinstatement with full back wages. Ld. ARM also filed some authorities in support of this contention. Similarly, one more oral submission was made by workman himself during the course of oral final arguments to the effect that he was partly employed nowadays and was drawing wages approx. at the rate of Rs. 15000/ to 16000/ (Fifteen Thousand to Sixteen Thousand) per month.
16. Written synopsis of final arguments have also been filed on record on behalf of the management of which copy was supplied to workman side. I have carefully gone through these written arguments of the management. These again appears to be the mere repetitions of averments of pleadings of management side on record.
17. Photocopies of certain authorities have also been filed on record in support of these written arguments of management. These are as under: i. Gujrat State Road Transport Corpn. & Another vs. Mulu Amra 1995 Supp (4) Supreme Court Cases 548.
ii. Senior Superintendent Telegraph (Traffic), Bhopal vs. Santosh Kumar Seal & Others (2010) 6 Supreme Court Cases 773.
iii.State of Orissa and Another vs. Rajkishore Nanda & Others (2010) 6 Supreme Court Cases 777.
iv. State of Chhattisgarh & Anr. Vs. Umendi & Ors. 2011 Lab. I.C. 1401. (Chhattisgarh High Court) v. Arjun Singh & Others vs. Labour Court, Jodhpur & Others 2005 (1) LLN 391 (High Court of Rajasthan).
vi. Pramod Kumar & Another vs. Presiding Officer & Another 2006 I.D. No.172/99 (old), 309/10 (new) Page Page numbers of 13 (1) LLN 254 (High Court of Delhi)
18. I have carefully gone through photocopies of these authorities and with due respect, I will deal with the ratio of these authorities at appropriate stage hereinafter.
19. I perused the entire judicial file minutely in view of rival submissions and my decision on remaining issues i.e. issue nos. 2 and 3 is as under: ISSUE NO. 2:
20. Before dealing with this issue further, I refer to the provisions of Section 25 F of I.D. Act which are as under: "25F. Conditions Precedent to Retrenchment of Workmen No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay (for every completed year of continuous service ) or any part thereof in excess of six months; and ( c ) notice in the prescribed manner is served on the appropriate Government (or such authority as may be specified by the appropriate Government by notification in the Official Gazette).?
21. In my considered opinion, the primary burden of proof of this issue was upon the workman. In coming to this conclusion, I also find support from an important judgment of Hon'ble Delhi High Court given in the case of UCO Bank vs. Presiding Officer & Another 1999 V AD (Delhi) 514. In para 13 of this judgment, Hon'ble Delhi High Court held mainly to the effect that I.D. No.172/99 (old), 309/10 (new) Page Page numbers of 13 principles regarding burden of proof are stipulated in Chapter VII of Indian Evidence Act, 1872 (in short Evidence Act) and that Sections 101 to 114 A of Evidence Act were relevant on his aspect and the Hon'ble Delhi High Court further held in this judgment that General Principal, which is laid down in these Sections, particularly under Sections 101 and 102 of Evidence Act was that he who asserts must prove i.e. burden of proof is the obligation to adduce evidence to the satisfaction of the Tribunal or Court to establish the existence or non existence of a fact contended to by a party. It was further held in his judgment that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it, for a negative is usually incapable of proof.
22. On this point, I, further find support from an important judgment of Hon'ble Allahabad High Court on this point given in the case of Canara Bank Lucknow vs. Union of India & Ors. 1998 LAB.I.C. 2923 (Allahabad High Court). The Hon'ble High Court held in para 11 of this judgment mainly to the effect that section 101 of Evidence Act postulates that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. It was further held that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Reference was also made by the Hon'ble High Court to the provisions of Sections 102, 103 and 106 respectively of the Evidence Act pertaining to burden of proof in such like cases.
23. Now turning to the evidence of workman on record, pertaining to this issue, the workman has deposed in his affidavit Ex. WW1/A filed on record mainly to the effect that he was appointed on 26.08.1996 as 'Draftsman' on monthly salary of approx. Rs. 6099/ including medical allowance, L.T.A. and Long tour I.D. No.172/99 (old), 309/10 (new) Page Page numbers of 13 allowance; that the copy of appointment letter issued to him by the management was Ex. WW1/1; that some officials of the management had forcibly taken his signatures on 03.08.1998 on some blank papers at the point of revolver and they also insisted for his resignation which was refused by him; that he also lodged a police complaint in this regard on 03.08.1998 and that copy of the same was Ex. WW1/2; that after 03.08.1998, he was not allowed to join his duties and his services were terminated without holding any enquiry or without giving any charge sheet to him; that he was not paid retrenchment compensation nor was it tendered to him; that he had sent a legal demand notice dt. 04.08.1998 through his union demanding his reinstatement but there was no response to the same from the side of the management; that the copy of demand notice was put on record as Ex. WW1/3; that persons junior to him were retained in service whereas he was retrenched by management without paying any retrenchment compensation despite the fact that he had completed 240 days of continuous service in a year; that he was unemployed since the date of his illegal termination and did not get any job despite his best efforts.
24. The workman was crossexamined at length by Ld. ARM earlier on 31.10.2003 and subsequently before this court again on 27.09.2010 after the case was remanded back to this court for trial afresh on merits. In my considered opinion, there was no substantial rebuttal to the evidence of the workman from the side of the management mainly on the point that he had completed 240 days of continuous service with the management during the preceding 12 months from the alleged date of his termination and further on the point that his services were terminated by the management without paying him any retrenchment compensation as per provisions of Section 25 F of I.D. Act.
25. Even in the crossexamination of workman conducted on 27.09.2010 before this court, he deposed, interalia, that he was appointed with the I.D. No.172/99 (old), 309/10 (new) Page Page numbers of 13 management w.e.f. 26.08.1996 at the post of 'Draftsman'; that he had worked with the management approx. for two years; that it was correct that his services were terminated by the management on 03.08.1998; that after termination of his services by the management, he tried to get an alternate job but he did not know the names of companies where he searched for such job but he did not now the names of companies where he searched for such job.
26. MW2 Sh. Sudhir Gopal Agarwal, admitted, in his crossexamination, inter alia, that the management removed the workman from his services on the ground that there was a clause of three months' notice period or salary in lieu thereof in his appointment letter and that on the basis of that clause, his services were dispensed with by the management. MW2 further admitted in his cross examination that they did not held any enquiry against the workman before removal of his service; that it was correct that two persons juniors to him namely Sh. Raj Kumar and Sh. Durga Dass were working with the management at the time when the services of the workman herein were removed; that the workman made report to the police vide his application Ex. WW1/2; that management removed the workman from his service due to lack of confidence in him; that he had no knowledge whether management got approved any standing orders regarding terms and conditions of employment of its employees and regarding removing of workman simplicitor without observing other conditions; that a cheque was tendered to workman in lieu of his three months' wages but he refused to accept the same. I have carefully gone through entire material on record. The management has not produced any cogent evidence on record to satisfy this court as to on what basis the management lost confidence in the workman and if so, as to whether any prior warning was given to workman to improve his work or his reputation . Further, no such evidence put on record that management really tendered cheque to workman but he I.D. No.172/99 (old), 309/10 (new) Page Page numbers of 13 intentionally refused the acceptance of the same.
27. From the above mentioned own deposition of workman as well as from the deposition of MW 2, coupled with entire material on record, I am of the considered view that the workman has been successful to satisfy this court by cogent evidence, both oral and documentary, that he had really completed 240 days of continuous service with the management during preceding twelve months from alleged date of his termination and hence the provisions of section 25 F of I.D. Act are found fully attracted in his case.
28. As revealed from judicial file, the management did not pay retrenchment compensation to the workman herein before terminating his services nor complied with other terms and conditions of the provisions of Section 25 F of I.D. Act before terminating the services of the workman herein as the same were necessary before terminating his services in the peculiar facts and circumstances of this case. In other words, the management has clearly not complied with the provisions of Section 25 F of I.D. Act before terminating the services of the workman herein.
29. In view of the above mentioned discussion coupled with entire material on record, I am of the considered opinion that the workman has been successful to satisfy this court that his services were terminated illegally and unjustifiably by the management and more particularly in violation of the provisions of Section 25 F of I.D. Act.
30. The main contention of the management side was there was a clause of removal of service of the workman by the management after giving three months' notice. However, I do not find any substance in this submission of the management because in the peculiar facts and circumstances of the present case where the workman had completed 240 days of continuous service with the management during the preceding 12 months from his alleged date of I.D. No.172/99 (old), 309/10 (new) Page Page numbers of 13 termination, he was entitled for retrenchment compensation and the management was bound to pay the same to the workman as well as to comply with other terms and conditions of Section 25 F of I.D. Act before terminating his services which are found lacking on the part of the management in this matter. Further, the management has not put any cogent evidence on record, either oral or documentary, to satisfy this court that it was authorised by standing orders of the management to remove the workman in such like situation without complying with conditions of S. 25 F of I.D. Act. Hence, the workman has proved this issue in his favour by way of cogent evidence to the effect that his services were terminated by the management illegally and unjustifiably without complying with provisions of Section 25 F of I.D. Act. Hence, this issue is decided accordingly against the management and in favour of the workman.
ISSUE NO. 3 : RELIEF :
31. Now the question arises as to what relief is to be given to the workman against the management in the given facts and circumstances of this case.
32. During the course of oral final arguments, the workman himself admitted that he was partly employed nowadays and was getting wages approx. @ Rs. 15000/ to 16000/ p.m.
33. Admittedly, the relations between the workman and the management were not cordial at the time of illegal termination of services of workman by the management. Such relations do not appear to be cordial even at this stage. This case is also very old pertaining to year 1999 and as per own submission of workman, he is partly employed nowadays. In such a situation, reinstatement of the workman with the management with full back wages would not be an appropriate relief in this matter.
34. In my further considered opinion, the most appropriate relief to the I.D. No.172/99 (old), 309/10 (new) Page Page numbers of 13 workman in the peculiar facts and circumstances of this case would be a one time lumpsum compensation to be awarded in his favour toward his reinstatement, back wages and all other consequential benefits.
35. In reaching the above conclusion, I also find support from various judgments relied upon by the management and filed along with written arguments of the management put on record of this case. To my considered view and with due respect, the ratio of such relied upon authorities appears to the following effect.
36. In Mulu Amra's Case (Supra), the Hon'ble Supreme Court of India held mainly to the effect that a lumpsum compensation in lieu of reinstatement was more appropriate when the employee was dismissed from his job about 25 years ago.
37. In Santosh Kumar Seal & Others Case (Supra), the Hon'ble Supreme Court of India held mainly to the effect that the reinstatement with back wages was not an automatic relief even if termination of employee was found to be illegal or in contravention of prescribed procedure and it was further held that monetary compensation in such like cases was also appropriate.
38. In State of Chhattisgarh & Anr.Case (Supra), the Hon'ble Chhattisgarh High Court held mainly to the effect that reinstatement was always not necessary consequence when the management did not comply with the provisions of Section 25 F of I.D. Act and that one time lumpsum compensation is also appropriate in such like cases.
39. In Arjun Singh's Case (Supra), the Hon'ble Rajasthan High Court held mainly to the effect that when a long time had elapsed since the termination of services of the workman illegally by the management, awarding of one time lumpsum compensation in lieu of reinstatement was also an appropriate relief.
40. In Pramod Kumar & Another Case (Supra), Hon'ble Delhi High Court I.D. No.172/99 (old), 309/10 (new) Page Page numbers of 13 held mainly to the effect that award of compensation to a workman in stead of reinstatement with back wages was not appropriate relief when long time had passed since the termination of services of the workman by the management in violation of provisions of Section 25 F of I.D. Act. These authorities were heavily relied upon by Ld. ARM during course of final arguments.
41. On the basis of above mentioned discussion and taking into consideration the overall facts and circumstances of this at this stage and in view of the mandate of above mentioned authorities relied upon by management, I am of the considered opinion that a one time lumpsum compensation in sum of Rs. 1,50,000/ (Rs. One Lac and Fifty Thousand only) to the workman and against the management in this matter would meet the ends of justice. Accordingly, the management is directed to pay a onetime lumpsum compensation to the workman in sum of Rs. 1,50,000/ (Rs. One Lac and Fifty Thousand) within one month from the date of publication of this award in lieu of his reinstatement, back wages and all other consequential benefits, failing which the same shall be recoverable by workman against the management at simple interest @ of 10% per annum from today till such payment is made by the management.
42. An award is passed to the above effect in favour of workman and against the management and reference is answered accordingly.
43. A copy of this Award be sent to the Deputy Labour Commissioner, Govt. of NCT of Delhi of Distt./Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
Announced in the open court today (DR.SHAHABUDDIN)
i.e. on 26.08.2011 Presiding Officer
Labour Court No. IX
Karkardooma Courts, Delhi
I.D. No.172/99 (old), 309/10 (new) Page Page numbers of 13