Delhi District Court
And vs Sh. Brijesh Kumar on 23 July, 2010
IN THE COURT OF DR. T. R. NAVAL ADDITIONAL DISTRICT &
SESSIONS JUDGE / PRESIDING OFFICER LABOUR COURT
KARKARDOOMA COURTS, DELHI.
ID NO.111/10 (New) 24/2001 (Old)
Date of Institution : 24.12.2001
Date of Arguments: 21.07.2010
Date of Award : 23.07.2010
IN THE MATTER BETWEEN:
M/s Manav Sthali School
R Block, New Rajinder Nagar,
New Delhi60. The management
AND
ITS WORKMAN
Sh. Brijesh Kumar
C/o Shramik Ekta Manch,
208, PocketD, Dilshad Gaden, Delhi. The workman
A W A R D
The Secretary (Labour), Government of NCT of Delhi
vide its order No.F.24(4181)/2000Lab./4354751 dated 22.12.2000
referred an industrial dispute between the above mentioned parties to
the Labour Court with the following terms of reference:
"Whether Sh. Brijesh Kumar has left his services and received
his dues in full and final settlement of all his claims after
resigning or his services 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?"
ID no.111/10 1 of 20
2. The facts in brief of the workman case, are that the
workman had been working with the management as driver for the
last 6 years and his last drawn salary was Rs.3000/ per month.
Management at the time of his appointment, obtained his signatures
on many blank papers, vouchers, appointment letter, etc. without
giving copies thereof to the workman. Although, the workman did not
give any chance of complaint to the management, yet the
management did not provide any legal facility to the workman
including ESI, PF, minimum wages. The management did not
maintain any seniority list. The management terminated his services
on 08.11.99 without giving him any notice. This amounts to illegal
retrenchment in violation of Section 25F of the Industrial Disputes Act
(hereinafter referred to as the Act). The workman sent a demand
notice dated 21.1.2000 to the management but the management
neither sent any reply to this letter nor reinstated him in service. The
conciliation proceedings also failed due to noncooperative attitude of
the management. Conversely, it was submitted before the conciliation
officer that the workman had resigned from his services whereas the
workman neither resigned from services, nor ever intended to resign.
Alleged resignation was never approved by any Director as provided
under the Delhi Education Act. The workman prayed for passing an
award in his favour and against the management for his
reinstatement in services alongwith full back wages as his services
were terminated in violation of provisions of Section 25F of the Act.
ID no.111/10 2 of 20
3. The management admitted that Sh. Brijesh Kumar was
working as driver for the period from 29.10.1998 to 21.5.1999 with the
management and his salary was Rs.3000/ per month. The
management contested his case on the ground interalia that
management is not covered under the definition of an 'industry'. The
services of the workman were never terminated. Conversely, the
workman himself resigned from his services and obtained full and
final payment. He was again appointed in the month of July, 1999. He
again resigned on 11.11.99. The management is not covered under
the Act but it is covered under Delhi School Education Act,1973. The
workman has been gainfully employed after resigning from the
services with the management. The management, while denying all
other allegations, prayed for dismissal of the statement of claim.
4. The workman in his rejoinder controverted the
contentions made in the WS and reiterated the averments made in
the statement of claim.
5. On the pleadings of the parties, following issues were
framed by my Ld. Predecessor:
1) Whether the management/respondent is not an
"industry", as defined under I.D.Act, as pleaded by the
management in PO No.1 of its WS, if so, to what effect?
2) To what relief, if any, is the workman entitled against the
management in terms of reference?
ID no.111/10 3 of 20
6. In support of his case the workman examined himself as
WW1. He proved his affidavit as Ex. WW1/A and placed reliance on
documents Ex. WW1/1 to Ex. WW1/18.
In order to prove its case, the management examined
Shri Ranjit Rautela, Administrative Officer as MW1. He also filed his
affidavit as Ex.MW1/A and relied on documents Ex. MW1/1 to
Ex.MW1/6 and Ex.WW1/18.
7. I have heard the arguments addressed by Authorised
Representatives of both the parties and perused the file.
8. On perusal of the pleadings of the parties, analysing
evidence and material placed on record and considering the
arguments addressed by Authorised Representatives for the parties, I
have formed my opinions on the issues and that are discussed here
in below issuewise:
FINDINGS ON ISSUE NO.1
9. The burden to prove this issue was on the management and it
had to prove that the management is not covered under the definition
of industry. MW1 on this aspect, deposed in his affidavit Ex.MW1/A
that the management was an educational institution and could not be
said to be carrying out any occupation and therefore, it is not covered
ID no.111/10 4 of 20
under the definition of 'establishment/industry' as defined under
section 2(j) of the Act. In cross examination, MW1 deposed that the
management school was being run by a society named New
Rajdhani Educational Society. It was also admitted by him that
workman was working with the management school as a driver. The
affidavit of workman Ex.WW1/A is silent on this aspect. Thus, it has
to be seen whether the management school is covered under the
definition of an 'industry'?
10. In case of Bangalore Water Supply & Sewerage Board
vs. A. Rajappa and others, (1978) 2 SCC 213, the Hon'ble Supreme
Court held that:
"140. 'Industry' , as defined in Section 2(j) and explained in
Banerji(supra), has a wide import.
(a) Where (i) systematic activity, (ii) organized by cooperation
between employer and employee (the direct and substantial
element is commercial) (iii) for the production and/or distribution
of goods and services calculated to satisfy human wants and
wishes (not spiritual or religious but inclusive of material things
or services geared to celestial bliss e.g. making, on a large
scale prasad or food), prima facie, there is an 'industry' in that
enterprise.
(b) Absence of profit motive or gainful objectives is irrelevant,
the venture in the public, joint, private or other sector.
(c) The true focus is functional and the decisive test is the
nature of the activity with special emphasis on the employer
employee relations.
(d) If the organization is a trade or business it does not cease to
be one because of philanthropy animating the undertaking.
ID no.111/10 5 of 20
141. Although Section 2(j) uses words of the widest amplitude
in its two limbs, their meaning cannot be magnified to overreach
itself.
(a) 'Undertaking' must suffer a contextual and associational
shrinkage as explained in Banerji (supra) and in this judgment;
so also, service, calling and the like. This yields the inference
that all organized activity possessing the tripe elements in I
(supra) although not trade or business, may still be 'industry'
undertakings, callings and services, adventures 'analogus to the
carrying on the trade or business'. All features, other than the
methodology of carrying on the activity viz. in organizing the co
operation between employer and employee, may be dissimilar.
It does not matter, if on the employment terms there is analogy.
142. Application of these guidelines should not stop short of
their logical reach by invocation of creeds, cults or inner sense
of incongruity or outer sense of motivation for or resultant of the
economic operations. The ideology of the Act being industrial
peace, regulation and resolution of industrial disputes between
employer and workmen, the range of this statutory ideology
must inform the reach of the statutory definition. Nothing less,
nothing more.
(a) The consequences are (i) professions, (ii) clubs, (iii)
educational institutions, (iv) cooperatives, (v) research
institutes (vi) charitable projects and (vii) other kindred
adventures, if they fulfill the triple tests listed in I (supra), cannot
be exempted from the scope of Section 2(j).
(b) A restricted category of professions, clubs, cooperatives
and even gurukulas and little research labs, may qualify for
exemption if , in simple ventures, substantially and, going by the
dominant nature criterion, substantively, no employees are
entertained but in minimal matters, marginal employees are
hired without destroying the nonemployee character of the unit.
(c) If, in a pious or altruistic mission many employ themselves,
free or for small honoraria or like return, mainly drawn by
sharing in the purpose or cause, such as lawyers volunteering
to run a free legal services clinic or doctors bidding of the
ID no.111/10 6 of 20
holiness, divinity or like central personality, and the services are
supplied free or at nominal cost and those who serve are not
engaged for remuneration or on the basis of master and servant
relationship, then, the institution is not an industry even if stray
servants, manual or technical, are hired. Such eleemosynary or
like undertakings alone are exempt - not other generosity,
compassion, developmental passion or project."
11. On the basis of the principles mentioned in the aforecited
case and applying the provisions of Section 2(j) of the Act, on the
facts of the present case, I am satisfied that the management is
covered under the definition of 'industry' because it is a private school
engaged in systematic activity of business of education and it was not
being run for pious or altruistic purposes. Therefore, this issue is
decided in favour of workman and against the management.
FINDINGS ON ISSUE NO.2
12. For the sake of clarity, this issue is bifurcated into three
parts.
1) Whether Sh. Brijesh Kumar has left his services after
resigning and received his dues in full and final after
settlement of all his claims?
2) Whether the services of Sh. Brijesh Kumar have been
terminated illegally and/or unjustifiably?
3) Relief.
ID no.111/10 7 of 20
Findings On Point No. 1
13. The burden to prove this point was on the management.
MW1 on this aspect deposed in his affidavit Ex.MW1/A that Sh.
Brijesh Kumar joined the management as a driver w.e.f. 29.10.98 and
he worked upto 21.5.99 and thereafter he left the services and
received his full and final payment. He was again appointed in
July,1999 and resigned on 11.11.1999. MW1 relied on documents
Ex.MW1/1 to MW1/18. Ex.MW1/5 is letter dated 11.11.1999 written
by Sh. Brijesh Kumar, driver to the Director. Ex.MW1/6 is a copy of
letter dated 18.12.1999. MW1 in his cross examination admitted that
the management is a recognized school by the government of Delhi.
14. It has been argued on behalf of Authorized
Representative of Workman that there was violation of provisions of
Section 8 of Delhi Education Act as it was mandatory for the
management to seek approval of the Director for accepting
resignation but no approval was taken by the management.
15. Section 8 of the Delhi Education Act,1993 provides that:
"8. Terms and conditions of service of employees of
recognized private school - (1)***
(2)Subject to any rule that may be made in this behalf, no
employee of a recognised private school shall be dismissed,
removed or reduced in rank nor shall his service be otherwise
ID no.111/10 8 of 20
terminated except with the prior approval of the Director."
16. MW1 in his cross examination, admitted that approval of
Director of Education was neither sought nor taken by the school for
accepting resignation of the workman. The workman in his affidavit
Ex.WW1/A deposed that neither he submitted any resignation nor
expressed his intention to resign from the services. I have perused
Ex.MW1/5 which is the alleged resignation letter. It is dated
11.11.1999. It has been written thereon that resignation accepted and
it was signed by Administrative Officer. The management has not
filed any document either dated 11.11.1999 or subsequent thereto, to
establish that workman was informed about the acceptance of his
resignation letter and further that he was paid all his dues.
17. It has been argued on behalf of workman that even if it is
presumed for the sake of arguments, that workman submitted his
resignation letter, then also his alleged resignation letter was never
given any effect to as his resignation was never accepted and that
acceptance, if any, was never communicated to the workman. In
support of his arguments, he relied on a case State Bank of Patiala
vs. Phoolpati, 2005 LLR 481. It was held therein:
"7.It is a settled position in law that unless the employee is
relieved from the duty after acceptance of the offer of voluntary
retirement of resignation, jural relationship of the employee and
the employer does not come to an end."
ID no.111/10 9 of 20
18. Authorized Representative of Workman further relied on
a case M/s J.K.Cotton SPG and Weaving Mills Co. vs. State of
U.P. & Others, 1990(61) FLR 329. It was held by Hon'ble Supreme
Court that:
"By entering upon a contract of employment a person does not
sign a bond of slavery and a permanent employee cannot be
deprived of his right to resign. A resignation by an employee
would, however, normally require to be accepted by the
employer in order to be effective."
On analysing the evidence and material on record, I am
of the view that management could not prove that the workman left
his services after resigning of his own and receiving his full and final
dues. The reasons which support my decision are, firstly, that it was
pleaded on behalf of the management that workman resigned twice,
firstly on 21.05.1999 and secondly, on 11.11.1999. The management
has failed to file any documentary proof that he ever resigned on
21.05.1999.
19. Secondly, the alleged resignation of the workman is in
violation of Section 8 of Delhi Education Act as admittedly it was not
approved by the Director of Education, Government of Delhi.
20. Thirdly, the management could not place on record that
ID no.111/10 10 of 20
the workman was paid all his dues soon after acceptance of his
alleged resignation letter.
21. Fourthly, the workman sent demand notice Ex.WW1/2 to
the management, through RC, postal receipt of which was proved as
Ex.WW1/3, that the management terminated his services illegally.
Had the workman resigned from his services, he would not have
written or sent any demand notice to the management.
22. Fifthly, the workman also informed the SHO of the area
about the termination of his services vide his complaint, copy of which
was proved as Ex.WW1/6. It was received in Police Station on
24.02.2000. The management has filed and proved the receipt of
payment as Ex.MW1/4. It is dated 06.11.1999 and that receipt is prior
to the date of alleged resignation i.e. dated 11.11.1999. Therefore, it
will not provide any benefit to the management.
In view of the reasons, discussion and evidence on
record and particularly discussed here in above, point no.1 of issue
No. 2 is decided in favour of the workman and against the
management.
Findings On Point No. 2
23. The burden to prove this point was on the workman and
he had to prove that the management terminated his services illegally
ID no.111/10 11 of 20
and/or unjustifiably. It has been argued on behalf of the management
that the workman has failed to establish that he worked for more than
240 days with the management. Authorized Representative of
Management relied on a case reported as Surendra Nagar District
Panchayat vs. Dahyabhai Amar Singh, 2006(108) FLR 193 SCC. It
was held therein that:
"To attract provisions of section 25F, the workman claiming
protection under it, has to prove that there exists relationship of
employer and employee; that he is workman within the meaning
of section 2 (s) of the Act; the establishment in which he is
employed is an industry within the meaning of the Act and he
must have put in not less than one year of continuous service
as defined by section 25B under the employer. These
conditions are cumulative. If any of these conditions are missing
the provisions of section 25F will not attract. To get relief from
the Court the workman has to establish that he has right to
continue in service and that his service has been terminated
without complying with the provisions of section 25F of the
Act."
24. Authorized Representative of Management also relied on
a case reported as R.M.Yellatti vs. Assistant Executive Engineer,
2006 (108) FLR 213 SCC, it was held by Apex Court that:
"Analysing the above decisions of this Court, it is clear that the
provisions of the Evidence Act in terms do not apply to the
proceedings under section 10 of the Industrial Disputes Act.
However, applying general principles and on reading the
aforestated judgments we find that this Court has repeatedly
taken the view that the burden of proof is on the claimant to
show that he had worked for 240 days in a given year. This
ID no.111/10 12 of 20
burden is discharged only upon the workman stepping in the
witness box. This burden is discharged upon the workman
adducing cogent evidence, both oral and documentary. In
cases of termination of services of daily wages earner, there will
be no letter of appointment or termination. There will also be no
receipt or proof of payment. Thus in most cases, the workman
(claimant) can only call upon the employer to produce before
the Court the nominal muster roll for the given period, the letter
of appointment or termination, if any, the wages register, the
attendance register etc. Drawing of adverse inference ultimately
would depend thereafter on facts of each case. The above
decisions however make it clear that mere affidavits or self
serving statements made by the claimant/workman will not
suffice in the matter of discharge of the burden placed by law
on the workman to prove that he had worked for 240 days in a
given year. The above judgments further lay down that mere
nonproduction of muster rolls per se without any plea of
suppression by the claimant workman will not be the ground for
the Tribunal to draw an adverse inference against the
management. Lastly, the above judgments lay down the basic
principle, namely, that the High Court under Article 226 of the
Constitution will not interfere with the concurrent findings of fact
recorded by the Labour Court unless they are perverse. This
exercise will depend upon facts of each case."
25. In case of (i) Chief Engineer, Ranjit Sagar Dam and
another vs. Sham Lal, 2006(110) FLR 552 SCC; (ii) State of
Maharastra vs. Dattaatraya Digambar Birajdar, 2007 (114) FLR
1191 SCC; (iii) Krishna Bhagyajala Nigam Ltd., 2006 (110) FLR
1212 SCC; (iv) Batala Cooperative Sugar Mills Ltd. vs. Sowarn
Singh, 2006(107) FLR 815 SCC, relied on by Counsel for the
management the principles laid down in cases R.M.Yellatti vs.
ID no.111/10 13 of 20
Assistant Executive Engineer (supra) were reiterated.
26. Authorized Representative of Management further relied
on a case reported as Dhara vs. Presiding Officer & another, 2007
V AD (Delhi) 296, wherein it was held by Delhi High Court that:
"The other alternate plea of the petitioner is to the effect that
assuming that he had not worked for 240 days continuously in
the preceding 12 months prior to his termination, still the
provisions of Section 25 G would be attracted. This argument of
the petitioner is misconceived for the reason that a bald
statement made in the statement of claim to the effect that the
persons junior to the petitioner was thrown out, is not sufficient.
The petitioner was under an obligation to furnish the names of
the persons who he claimed were junior to him, but were
retained in service. No particulars were furnished nor was any
affidavit filed by the petitioner before the Labour Court giving the
names of the said persons to the Labour Court to have upheld
the claim of the petitioner. Had the petitioner made assertions to
the said effect duly backed with evidence that he was thrown
out of work and juniors to him had been retained in employment
and had such an evidence remained unrebutted, then a
conclusion could have been drawn in favour of the petitioner
and against the respondent. Such is not the case here. Any
reliance placed on the judgment in the case of Amarpal (supra)
cannot be of any avail to the petitioner. Hence, it cannot be held
that the provisions of Section 25G of the Act are attracted to the
present case and any hostile discrimination was meted out
against the petitioner."
27. On the other hand, Authorized Representative of
Workman placed reliance on cases reported as Executive Engineer,
ID no.111/10 14 of 20
Bari Doad Drainage Division, Amritsar vs. Tarsem Singh and
Another, 2007 LLR 509. It was held by Punjab & Haryana High Court
that:
"The department withheld the muster rolls and attendance
record pertaining to the workman. Similarly payment register of
casual workers including that of workman relating to the period
after December 1996 was not produced, which led the Labour
Court to draw an adverse inference against the petitioner
department. As per section 25D of the Act, it is obligatory on the
part of the department to maintain whole record concerning the
service period of a workman and to produce the same as and
when directed by the Court or appropriate forum."
28. After analysing the evidence, and applying above
narrated principles on the facts and evidence of present case, I came
to the conclusion that the evidence placed on record has established
that the management terminated the services of workman not only
illegally but also unjustifiably. The reasons which support my
decision are, firstly, that it was admitted by the management that the
workman had worked with it from 29.10.98 to 21.05.99 and again
from July, 1999 to 11.11.99. As mentioned above, the management
has failed to file and prove on record that workman resigned from his
services on 21.05.99. The management has not filed any record
about the absence of the workman for the period from 21.5.99 to the
date of July,1999 when he was allegedly reappointed. WW1 workman
deposed that he had been working with the management since 1993
ID no.111/10 15 of 20
to 08.11.1999. If the total period of service is calculated then it comes
to more than 240 days in one calendar year preceding the date of
termination of his services.
29. Secondly, it is not the case of the management that
management either issued any charge sheet or conducted any
enquiry or offered or paid any retrenchment compensation to the
workman or complied the principle of last come first go as per
provisions of section 25F and 25G, respectively of the Act. Therefore,
the termination of the services of workman amounted to illegal
retrenchment as same was done in violation of various provisions of
the Act and principles of natural justice.
30. Thirdly, the case laws cited by the management and
reported as (i) Surendra Nagar District Panchayat vs. Dahyabhai
Amar Singh, supra; (ii) R.M.Yellatti vs. Assistant Executive
Engineer, supra; (iii) Chief Engineer, Ranjit Sagar Dam and
another vs. Sham Lal, supra; (iv) State of Maharastra vs.
Dattaatraya Digambar Birajdar, supra; (v) Krishna Bhagyajala
Nigam Ltd., supra; (vi) Batala Cooperative Sugar Mills Ltd. vs.
Sowarn Singh, supra; and (vii) Dhara vs. Presiding Officer &
another, supra will not provide any benefit to the management as
these rulings lay down the general/legal principles as narrated here in
above.
ID no.111/10 16 of 20
31. In view of the reasons, discussion and evidence on
record and particularly discussed here in above, point no.2 of issue
no.2 is also decided in favour of the workman and against the
management.
RELIEF
32. Authorized Representative of Workman has submitted
that workman is entitled for full back wages. He relied on a case
reported as Aparna Arvind Ambekar vs. Secretary, B.P.T.
Hammallage Cooperative Canteen Society Ltd. and Others,
2008ILLJ743(Bom). The Hon'ble High Court held that:
"It is an error on the part of Labour Court in not granting
reinstatement with continuity of service and full back wages to
the petitioner. Once it arrived at the conclusion that the
termination was illegal, the ground that some other person was
appointed to that place was not sustainable. But as the
petitioner already attained the age of superannuation, it will be
appropriate to enhance the compensation."
33. In case of M/s P V K Distillery Ltd. Vs. Mahendra Ram,
1009(2) SCT 369, it was held that illegal termination does not create
a right of reinstatement with full employment benefits and full back
wages to an employee. It was observed that:
"14. In case of Haryana Urban Development Authority v.
Om Pal, 2007(2) SCT 749, it is stated that, it is now also well
settled that despite a wide discretionary power conferred upon
the Industrial Courts under Section 11A of the 1947 Act, the
ID no.111/10 17 of 20
relief of reinstatement with full backwages should not be
granted automatically only because it would be lawful to do so.
Grant of relief would depend on the fact situation obtaining in
each case. It will depend upon several factors; one of which
would be as to whether the recruitment was effected in terms
of the statutory provisions operating in the filed, if any.***
18. In case of Allahabad Jal Sansthan v. Daya Shankar Rai,
2005(2) SCT 699, this court has observed: A law in absolute
terms cannot be laid down as to in which cases, and under
what circumstances, full back wages can be granted or denied.
The Labour Court and/or Industrial Tribunal before which
industrial dispute has been raised, would be entitled to grant
the relief having regard to the facts and circumstances of each
case. For the said purpose, several factors are required to be
taken into consideration.***
19. In case of Madurantakam Coop. Sugar Mills Ltd. vs. S.
Vishwanathan, 2005(2) SCT 111, the quantum of back wages
was confined to 50%, stating: It is an undisputed fact that the
workman had since attained age of superannuation and the
question of reinstatement does not arise. Because of the
award, the respondent workman will be entitled to his retiral
benefits like gratuity, etc. and accepting the statement of the
learned Senior Counsel for the appellant Mills that it is
undergoing a financial crisis, on the facts of this case we think
it appropriate that the full back wages granted by the Labour
Court be reduced to 50% of the back wages.***
21. Giving a realistic approach to the matter and in spite of all
these circumstances we are restricting ourselves to the
question of 50% of the total back wages. Although services of
the respondent have been terminated unjustifiably and illegally,
it itself does not create a right of reinstatement with full
employment benefits and full back wages.***"
34. WW1 in his affidavit Ex.WW1/A deposed that since the
ID no.111/10 18 of 20
date of termination of his services, he had been without employment.
In his cross examination, he has stated that he applied for the job of
driver at several places but he could not give the details of the
organisations where he applied.
35. In view of the above discussions and principles of law
laid down in above referred cases, I am of the view that it would be
just, fair and appropriate if 50% of the back wages are granted to the
workman. The reasons in support of my decision are, firstly, that in
cross examination, WW1 deposed that he did not know the name and
number of the management where he applied for job. Secondly, it is
common knowledge that demand of drivers in Delhi is high and an
experienced driver rarely remains without employment.
ORDER
36. Consequent upon the decision of both the issues in favour of workman and against the management, terms of reference are answered in favour of workman and against the management and it is held that Sh. Brijesh Kumar did not leave his services of his own after receiving full and final settlement of all his claims after resignation. The services of workman were terminated illegally and unjustifiably. Therefore, workman is entitled to get relief of reinstatement in services with 50% of back wages.
Accordingly, the appropriate Government is advised to ID no.111/10 19 of 20 direct the management to reinstate the workman in service on the post of 'Driver' within 30 days from the date of publication of this award and also to pay 50% of back wages @ his last drawn salary i.e. Rs.3000/ or minimum wages fixed for skilled workers at the relevant time since the date of termination of his services i.e. 08.11.1999 till the date of his reinstatement in service. If amount of back wages is not paid to the workman within a month from the date of publication of this award then, he will also be entitled to get 8% simple interest on the amount of arrears of back wages from the date of award till the date of realisation.
37. Copy of award be sent to Secretary Labour, Govt. of NCT, Delhi for publication as per rules.
File be consigned to Record Room.
Announced in the open court rd today the 23 day of July,2010.
(DR. T. R. NAVAL) Additional District & Sessions Judge Presiding Officer: Labour Court Karkardooma Courts,Delhi.
ID no.111/10 20 of 20