Delhi District Court
Id No. 274/14 Lallan Jha vs Gannon Dunkerly & Co. Ltd. Page No. 1 Out ... on 10 March, 2015
IN THE COURT OF SH. SANJEEV KUMAR
ADDITIONAL DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER LABOUR COURT
KARKARDOOMA COURTS, DELHI.
ID NO. 274/14 (Old DID No. 698/13)
IN THE MATTER BETWEEN:
Sh. Lallan Jha S/o. Sh. Kameshwar Jha,
R/o. 115A, Nyyakhand II, Indirapuram,
District Ghaziabad, UP.
.........workman
VERSUS
M/s. Gannon Dunkerley & Company Limited,
B228, Okhla Industrial Area,
Phase : I,
New Delhi : 20.
.........Management
Date of Institution : 06.11.2013
Date of arguments : 20.02.2015
Date of Award
: 10.03.2015
AWARD
1 Vide this award I shall decide the Industrial Dispute
sent by the Government vide Ref. No. F.24 (427)/Lab./SD/2013/
ID No. 274/14 LALLAN JHA VS GANNON DUNKERLY & CO. LTD. Page No. 1 out of 24
20964 dated 25.10.2013 with following terms of reference.
"Whether Sh. Lallan Jha S/o. Sh.
Kameshwar Jha tendered his
resignation and received his dues in
full and final settlement or his
services have been terminated
illegally and/or unjustifiably by the
management; if so, to what relief is he
entitled and what directions are
necessary in this respect?"
2 Notice of the reference was issued to the Workman.
Brief facts as stated in the statement of claim are that workman was
working with the management since 4.7.2008 as Accounts officer
(Taxation) and his last drawn wages was Rs. 19500/ p.m. The
conduct of the workman was unblemished and never gave any
chance of complaint to the management. The workman was
terminated from the service w.e.f. 22.01.2013 without assigning any
reason and thus the action of the management in terminating his
services is illegal. He further stated that he is not gainfully
employed since his termination despite his best efforts. He sent a
representation dt. 24.1.13 to the management but no reply was
received from the management. Thereafter, he initiated conciliation
proceedings and one representative of the management appeared
ID No. 274/14 LALLAN JHA VS GANNON DUNKERLY & CO. LTD. Page No. 2 out of 24
and filed reply but conciliation was failed. The workman prayed
for reinstatement in the services with full back wages and
continuity of services along with consequential benefits.
3 Per contra, the management has denied the contents of
the statement of claim by filing WS. The management has taken
preliminary objection that claimant is not a workman and is not
covered by the definition of 'workman' a provided u/s. 2 (s) of the
ID Act, 1947. The claimant was employed with management in a
managerial/supervisory capacity as he was drawing wages
exceeding to Rs. 10,000 p.m. as the last drawn salary of the
workman was Rs. 19500/ and he was terminated vide letter dated
22.1.13. It is further alleged that that as per para 14 (a) of the terms
and condition mentioned in the appointment letter issued at the
time of appointment he can be terminated by giving 3 months
notice or payment in lieu of notice. Thus services of the claimant
was terminated by the management by way of discharge simplicitor
without any stigma in terms of terms and condition as mentioned
in the appointment letter. Therefore, his termination is not a
retrenchment.
4 The workman has filed the replication in which he
denied the contents of the written statement as incorrect and
ID No. 274/14 LALLAN JHA VS GANNON DUNKERLY & CO. LTD. Page No. 3 out of 24
reiterated the contents of statement of claim as true and correct. He
denied that he was employed in managerial/ supervisory capacity
and he was drawing wages exceeding to Rs. 10,000/ per month
hence, he is not covered by the definition of 'workman' as provided
under section 2 (s) of th ID Act, 1947.
5 From the pleadings of the parties, the following issues
have been framed vide order dated 9.9.2014 :
1. Whether the workman is workman
as per the section 2 (s) of the ID Act?
OPM.
2. As per terms of reference.
3. Relief.
6 No other issues arise from pleading of parties. In
order to prove his case workman examined himself as WW1 and he
led his evidence through affidavit Ex. WW1/A. The workman also
relied upon documents i.e appointment letter Ex.WW1/1 to 1/6 and
mark X and Y. He was crossexamined at length by the AR for the
management.
7 On the other hand, the management has examined Sh.
Ashok Kumar as MW1 who led his evidence through an affidavit
ID No. 274/14 LALLAN JHA VS GANNON DUNKERLY & CO. LTD. Page No. 4 out of 24
Ex. MW1/A and also relied upon documents vide Ex. MW1/1 to
MW1/5. He was also cross examined by the Ld. AR for the
workman at length.
8 Having heard the contention raised by Ld. Authorized
Representative of the parties and carefully gone through the
material placed on record. My issue wise finding are as under:
ISSUE NO. 1.
Whether the workman is workman as
per the section 2 (s) of the ID Act?
OPM.
9 The onus is upon the management to prove that
claimant is not covered under the definition of "workman" as per
section 2 (S) of the ID Act, 1947. In order to prove the same
management has examined Sh. Ashok Kumar as MW1 who is the
Manager (Administration) who led his evidence by way of affidavit
and also relied upon documents i.e. the letter dated 20.12.12
alongwith for formate of modified terms and condition which is
Ex.MW1/1, letter dated 08.04.13 i.e. Ex.MW1/2 and reply dated
16.04.13 which is Ex.MW1/3, copy of PF withdrawal form
Ex.MW1/4, a letter dated 24.11.14 Ex.MW1/5 to the workman for
ID No. 274/14 LALLAN JHA VS GANNON DUNKERLY & CO. LTD. Page No. 5 out of 24
sending cheque of Rs. 29819/ as full and final settlement account.
In his cross examination he stated that claimant was
employed as OfficerA in supervisory cadre. He denied that
workman was working in clerical in nature. He admitted that the
workman has no power to sanction leave, appointment, termination
etc. He also admitted that the workman has not doing any
administrative work. Vol. he used to supervise the accounts work of
his juniors as the workman was employed in the account
department. He denied that workman used to report regarding his
day to day work to Assistant Manager. Vol. The workman used to
report for his day to day work to DGM. He state that the services of
the workman were terminated by the management vide letter dated
22.01.13 Ex.WW1/6. He stated that at the time of appointment of
the claimant there was clause in his appointment letter for giving
three month notice either side which was modified later on in
December, 2012 as per terms and condition of his appointment
letter which is applicable for all employees of the company. The
workman has proved his appointment letter Ex. WW1/1.
10 I am fully agree with the contention of the Ld. ARW
that nomenclature of an employee is not material to ascertain
whether he was working as manager administrator but it is a nature
ID No. 274/14 LALLAN JHA VS GANNON DUNKERLY & CO. LTD. Page No. 6 out of 24
of work performed by the workman which determined whether an
employee is covered under the definition of 'workman or not. The
section 2 (s) of the ID Act is produced as under :
The section 2 (s) of the Industrial Dispute Act,1947
defines the "workman" as under :
"Workman" means any person (including an
apprentice) employed in any industry to do any
manual, unskilled, skilled, technical, operational,
clerical or supervisory work for hire or regard,
whether the terms of employment be express or
implied, and for the purposes of any proceedings
under this Act in relation to an industrial dispute,
includes any such person who has been dismissed,
discharged or retrenched in connection with, or as a
consequence of, that dispute, or whose dismissal,
discharge or retrenchment has led to that dispute,
but does not include any such person
(i)who is subject to the Air Force Act,
01950 (45 of 1950) or the Army Act,
1950 (46 of 1950) or the Navy Act, 1957
(62 of 1957); or
(ii) who is employed mainly in a
managerial or administrative capacity;
or
(iii) who, being employed in a
supervisory capacity, draws wages
exceeding one thousand six hundred
rupees per mensem or exercises, either
by the nature of the duties, attached to
the office or by reason of the powers
vested in him, functions mainly of a
managerial nature.
ID No. 274/14 LALLAN JHA VS GANNON DUNKERLY & CO. LTD. Page No. 7 out of 24
11 Definition would show that workman means a person
employed in an industry to do any manual, unskilled, skilled,
technical, operational, clerical or supervisory work for hire or
reward. Somebody who does not fall under the exceptions
enumerated under Section 2(s) of the Act shall be a workman. In
H. R. Adyanthaya and others v. Sandoz (1) Limited and others,
(1994) 5 SCC 737, Supreme Court analysed all the previous
judgments and held that :
it was not sufficient for a person to be a workman
that he does not fall within the exceptions given in
Section 2 (s). In order to be a workman the specific
nature of work as given under Section 2 (s) the Act
must be shown to be the one being done by the
person. There may be employees who do not do any
supervisory or administrative work but may be out of
the scope of the definition.
In May & Baker India Co. Ltd. v. Their Workmen,
AIR 1964 SC 472 and Burmah Sheel Oil Storage & Distributing
Co. of Association and others, AIR 1971 SC 922. While
summarizing the legal position, Supreme Court held as under:
"We thus have three three Judge Bench decisions
which have taken the view that a person to be
qualified to be a workman must be doing the work
which falls in any of the four categories, viz., manual,
clerical supervisory or technical and two two Judge
ID No. 274/14 LALLAN JHA VS GANNON DUNKERLY & CO. LTD. Page No. 8 out of 24
Bench decisions which have by referring to one or the
other of the said three decisions have reiterated the
said law. As against this, we have three threeJudge
Bench decisions which have without referring to the
decisions in May & Baker, WIMCO and Burmah
Shell cases have been taken the other view which was
expressly negatived, viz., if a person does not fall
within the four exceptions to the said definition he is
a workman within the meaning of the ID Act. These
decisions are also based on the facts found in those
cases. They have, therefore, to be confined to those
facts. Hence the position in law as it obtains today is
that a person to be a workman under the ID Act must
be employed to do the work of any of the categories,
viz., manual, unskilled, skilled, technical, operational,
clerical or supervisory. It is not enough that he is not
covered by either of the four exceptions to the
definition. We reiterate the said interpretation......"
In case of LIC of India versus R. suresh, 2008 (H8)
FLR 1189 (SC), it is held that
"29. A Development Officer has been held , to be a
"workman" in SK Verma. We, however, are not
unmindful of a decision of a threeJudge Bench of
the Court in Mukesh K. Tripathi V. LIC, 2004 (103)
FLR 350; 2004 LLR 993 (SC), wherein the question
was as to whether an apprentice would be a
workman within the meaning of the provisions of
section 2 (s) of the Industrial Dispute Act, 1947. It
is not a case where case of an apprentice is
involved."
12 Now reverting back to the case from the
appointment letter of the workman Ex. WW1/3 it is evident that
workman was appointed as Officer A (Accounts) hence, the
ID No. 274/14 LALLAN JHA VS GANNON DUNKERLY & CO. LTD. Page No. 9 out of 24
designation of the workman was Officer but that designation itself
does not take out the workman from the ambit of workman as
defined under section 2 (s) of the ID Act. In this regard I rely upon
judgements Kirloskar Electirc Company Ltd. vs. Government of
NCT of Delhi 2009(9) AD (Delhi) 125 : 2010 (2) LLJ 701 it is
observed that :
8. In the present case, the Court below taking note of
the nature of duties performed by respondent No. 3 in
the course of his employment with the petitioner company, has rightly reached to a conclusion that his designation either as Accounts Officer or as Assistant Manager, was only a misnomer and does not suggest that he was discharging either supervisory or managerial duties so as to exclude him from the purview of the definition of 'workman' given in Section 2(s) of the Industrial Disputes Act, 1947. It shall be significant to mention that though the petitioner company had filed its written statement before the Labour Court but despite opportunity given to it, neither it crossexamined the witnesses of the workman nor did it produce any evidence to prove its contention that the respondent No. 3 was discharging supervisory or managerial functions. In the facts and circumstances of the case, I do not find any perversity or illegality in the finding of the Court below that respondent No. 3 is covered by the definition of 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947.
The position of law laid down in Ananda Bazar Patrika (Pvt. ) Ltd. vs. The workmen 1970 (3)SCC 248 is as follows: ID No. 274/14 LALLAN JHA VS GANNON DUNKERLY & CO. LTD. Page No. 10 out of 24 "The question, whether a person is employed in a supervisory capacity or on clerical work, in our opinion, depends upon whether the main and principal duties carried out by him are those of a supervisory character, or of a nature carried out by a clerk. If a person is mainly doing supervisory work, it would have to be held that he is employed in supervisory capacity' and, conversely, if the main work done is of clerical nature, the mere fact that some supervisory duties are also carried out incidentally or as a small fraction of the work done by him will not convert his employment as a clerk into one in supervisory capacity. This principal finds support from the decisions of this Court in South Indian Bank Ltd. Vs. A. R. Chacko 1964 (8) FLR 128 and Management of M/s May and Baker (India) Ltd. vs. Their Workmen 1961 (2) FLR 594. In the present case, we have, therefore, to examine the evidence to see whether the Labour Court is right in holding that, because of the main work of Gupta being clerical in nature, he was not employed in supervisory capacity. "
In S. K. Maini v. M/s. Carona Sahu Company Limited AIR 1994 SUPREME COURT has held as under: "9. After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties, it appears to us that whether or not an employee is a workman under S.2(s) of the Industrial Disputes Act is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any straitjacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases. When an employee is employed to do the types of work enumerated in the definition of workman under Section 2(s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or commercial organisations quite a large number of ID No. 274/14 LALLAN JHA VS GANNON DUNKERLY & CO. LTD. Page No. 11 out of 24 employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it. In this connection, reference may be made to the decision of this Court in Burmah Shell Oil Storage and Distribution Company of India Ltd. v. Burmah Shell Management Staff Association, (1970) 2 Lab LJ 590 : (AIR 1971 SC 922). In All India Reserve Bank Employees' Association v. Reserve Bank of India, (1 965) 2 Lab LJ 175 : (AIR 1966 SC
305), it has been held by this Court that the word 'supervise' and its derivatives are not words of precise import and must often be construed in the light of context, for unless controlled, they cover an easily simple oversight and direction as manual work coupled with the power of inspection and superintendence of the manual work of others. It has been rightly, contended by both the learned counsel that the designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the concerned employee and not some works incidentally done. In other words, what is, in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also some manual or clerical work, the employee should be held to be doing supervisory works. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of 'workman' as defined in S. 2(s) of the Industrial Disputes Act. In Mcleod and Co. v.
Sixth Industrial Tribunal, West Bengal, AIR 1958 Cal 273, P. B. Mukharji, J. of the Calcutta High ID No. 274/14 LALLAN JHA VS GANNON DUNKERLY & CO. LTD. Page No. 12 out of 24 Court as the learned Chief Justice then was, observed that :
"whether a person was a workman within the definition of the Industrial Disputes Act would be the very foundation of the jurisdiction of the Industrial Tribunal. The Court further observed that in order to determine the categories of service indicated by the use of different words like "supervisory", "managerial", and "administrative", it was not necessary to import the notions of one into the interpretation of the other. The words such as 'supervisory', 'managerial' and ,administrative' are advisedly loose expressions with no rigid frontiers and too much subtlety should not be used in trying to precisely define where supervision ends and management begins and administration starts. For that would be theoretical and not practical. It has to be broadly interpreted from a common sense point of view where tests will be simple both in theory and in their application. The learned Judge further observed that a supervisor need not be a manager or an administrator and a supervisor can be a workman so long as he did not exceed the monetary limitation indicated in the section and a supervisor irrespective of his salary is not a workman who has to discharge function mainly of managerial nature by reasons of the duties attached to his office or of the powers vested in him. The aforesaid decision of the Calcutta High Court was noted with approval by this Court in National Engineering Industries Ltd. v. Shri Kishan Bhageria, AIR 1988 SC 329. It may be noted in this connection that in view of the amendment of Section 2(s) enlarging the ambit of the classification of various types of workmen except managerial force, entire labour force has been included within the definition of workman under Section 2(s) as has been indicated by this Court in S. K. Verma v. Mahesh Chandra, (1983) 3 SCR 799 : (AIR 1984 SC 1462). But if the principal function is of supervisory nature, the concerned employee will not be workman only if he draws a particular quantum of salary at the relevant time as indicated in Section 2(s). In the ID No. 274/14 LALLAN JHA VS GANNON DUNKERLY & CO. LTD. Page No. 13 out of 24 instant case, it, however, appears to us that Shri Maini as Manager/ Incharge of the shop was made responsible and liable to make good such amount of credit whether such sale on credit had been made by him or by any other member of the staff in employment under him with or without his knowledge. Under the terms and conditions of service, he was asked to take charge of the shop to which his service was transferred. Mr. Maini, under the terms and conditions of service, was required to be held responsible and liable for any loss suffered by the Company due to deterioration of the quality of the stock or any part thereof and loss of any of the other articles lying in the shop caused by reason of any act of negligence and/ or omission to take any precaution by the employees. Mr Maini was also required to notify to the Company by trunk call and/ or telegram not later than three hours after the discovery in the said shop of any fire, theft, burglary, loot or arson. He was required to investigate into the matter immediately and get the cause and amount of loss established by local authorities. Mr. Maini as In charge of the Shop was required to keep and maintain proper accounts as approved by the Company indicating the exact amount to be paid from the receipts from the respective staff. Under Clause XIII of the terms and conditions of the service, Mr. Maini would remain fully responsible to the Company for damages or loss caused by acts or commission of the loss of the employees of the shop. Under Chapter XV of the terms and conditions of service, the shop in charge was required to keep himself fully conversant with all the regulations in force which may come into force from time to time with regard to Octroi, Sales Tax and Shops and Commercial Establishment Act and/or any other local regulation applicable to the shop. Clause XXI indicates that noncompliance with any of the local or State Acts or Central Acts would be viewed seriously and manager would be held responsible for any fine/penalty imposed and/or prosecution launched against the Company. It also appears that in the event of a salesman being absent, ID No. 274/14 LALLAN JHA VS GANNON DUNKERLY & CO. LTD. Page No. 14 out of 24 the shop incharge is empowered to appoint temporary helper for the said period to work as acting salesman. Similarly, in the event of helper being absent, the shop manager is also empowered to appoint parttime sweeper and to entrust the work of a helper to a sweeper. Such functions, in our view, appear to be administrative and managerial. By virtue of his being incharge of the shop, he was the principal officer incharge of the management of the shop. We therefore find justification in the finding of the High Court that the principal function of the appellant was of administrative and managerial nature. It is true that he himself was also required to do sortie works of clerical nature but it appears to us that by and large Sri Maini being incharge of the management of the shop had been principally discharging the administrative and managerial work. A manager or an administrative officer is generally invested with the power of supervision in contradistinction to the stereotype work of a clerk. This Court in Lloyds Bank Ltd. v. Pannalal Gupta (1961) 1 Lab LJ 18 . (AIR 1967 SC 428) has indicated that a manager or administrator generally occupies a position of command or decision and is authorised to act in certain matters within the limits of his authority without the sanction of his superior. In the instant case within the authority indicated in the terms and conditions of his service, Sri Maini was authorised to take decisions in the matter of temporary appointments and in taking all reasonable steps incidental to the proper running of the shop.
Precisely for the said reason, Sri Maini had signed the statutory forms as an employer. It should be borne in mind that an employee discharging managerial duties and invested with the power of appointment and discharge of other employees. It is not unlikely that in big set up such power is not invested to a local manager but such power is given to some superior officers also in the management cadre at divisional or regional level. The unit in a local shop may not be large but management of such small unit may fulfill the requirements and incidences ID No. 274/14 LALLAN JHA VS GANNON DUNKERLY & CO. LTD. Page No. 15 out of 24 of managerial functions. On a close scrutiny of the nature of duties rind functions of the Shop Manager with reference to the admitted terms and conditions of service of Sri Maini, it appears to us that the High Court was justified in holding that the (sic) was not a workman under S. 2(s) of the Industrial Disputes Act. In the aforesaid facts, it is not necessary to go into the question as to whether or not domestic enquiry had been properly conducted or the Enquiry Officer had acted with bias. It is also not necessary to decide for the purpose of the disposal of the appeal as to whether or not the Company was entitled to lead fresh evidence in support of the domestic enquiry before the Labour Court. The appeal is, therefore, dismissed without, however, any order as to Cost. Appeal dismissed.
13 Hence in these circumstances, I held that mere designation of workman as account officer do not take him out from the ambit of workman. The management is required to proved that claimant was doing supervisory, administrative or managerial duty to take him out of the ambit of workman.
14 In the appointment letter or annexure EX.WW1/1 containing terms and conditions annexed with the appointment letter nothing is mentioned what would be nature of duty of the workman. The workman in his examination in chief and cross examination depose that his nature of duty was clerical in nature. He denied the suggestion that he was doing supervisory duty and supervising the work of other employees. The management in the ID No. 274/14 LALLAN JHA VS GANNON DUNKERLY & CO. LTD. Page No. 16 out of 24 WS had not stated that what kind of duty workman was performing except stated that he was employed in the managerial or supervisory capacity. MW1 Ashok also in his examination in chief had not deposed what kind of duty workman was performing. In his cross examination, he admitted that workman has no power to sanction leave, appointment, termination etc. and was not doing any administrative work. He has voluntarily stated that he used to supervise the accounts work of his juniors as the workman was employed in the account department but has not deposed in what manner workman used to supervise the account work of junior. Neither the name of any junior whose work workman was allegedly supervising has been mentioned. Therefore, in these circumstances, I held that management has failed to prove that workman was doing any supervisory administrative or managerial work hence, issue no. 1 is decided accordingly against the management.
ISSUE NO. 2.
16 As per terms of reference The onus was on the workman to prove that he was terminated illegally and/or unjustifiably by the management. The workman deposed that he was terminated by the management ID No. 274/14 LALLAN JHA VS GANNON DUNKERLY & CO. LTD. Page No. 17 out of 24 without any reason on 22.2.13. The management has also admitted that workman was terminated from 22.2.13 vide letter dated 22.1.13 by giving him one month notice by way of discharge simplicitor as per the terms of appointment letter. As per clause 14 (a) of terms and condition as mentioned in annexure of appointment letter Ex. WW1/1 workman service can be terminated by giving 3 months notice or payment of three month salary in lieu of notice. As per termination letter EXWW1/6 management has only given one month notice in accordance with revised term and condition of appointment.
17 As per contention of Ld. AR for management the terms and conditions of all employees were revised vide letter Ex. MW1/1 dated 20.12.12 whereby period of notice was reduced from 3 months to one month, but the management had not produced any document that said revised terms and conditions of employment was ever served to the workman or brought Ex. MW1/1. The letter EXMW1/1 itself contained the condition that letter be circulated among all the employees and the acceptance letter is to be taken from the workman which should reach to management by 27.12.12. Hence, revise term and conditions become effective only after acceptance of the revise term and condition by workman. The ID No. 274/14 LALLAN JHA VS GANNON DUNKERLY & CO. LTD. Page No. 18 out of 24 workman through letter EXWW1/1 has categorically stated that he has not accepted the revised terms and condition. It is not the case of the management that workman has given acceptance letter. Neither any such acceptance has been proved by management. Thus management has failed to prove that workman has accepted the revised terms and conditions. Hence, in my view, the revised terms and condition were not applicable on workman and his terms and conditions are remained same as mentioned in the annexture given with appointment letter EXWW1/3and the management required to give 3 months notice. Admittedly, the management has not given three months notice as only one month notice was given. Thus, in my view termination of the workman was illegal in view of non compliance of conditions of 14 (a) of the terms and conditions as contained Ex. WW1/1. Thus I hold that workman has been terminated illegally. Issue no. 2 is decided accordingly against the management.
RELIEF 18 Ld. AR for workman has claimed reinstatement with full back wages and consequential benefits. On the other hand Ld. ARM has argued that even if workman termination was illegal due ID No. 274/14 LALLAN JHA VS GANNON DUNKERLY & CO. LTD. Page No. 19 out of 24 to non compliance of three month notice period the workman will not be entitle to three month notice pay only as mention in original terms and condition.
19 It is settled law that even in case of illegal termination also reinstatement is not automatic. In Nehru Yuva Kendra Sangathan Vs. Union of India & Ors. 2000 IV AD (Delhi) 709, Hon'ble Delhi High Court dealt with the question of reinstatement and back wages and observed in paragraphs 27 and 28 as under : "27. We find from the decision of the Supreme Court rendered in the 1970s and 1980s that reinstatement with back wages was the norm in cases where the termination of the services of the workman was held inoperative. The decisions rendered in the 1990s, including the decision of the Constitution Bench in the Punjab Land Development and Reclamation Corporation Ltd., Chandigarh seem to suggest that compensation in lieu of reinstatement and back wages is now the norm. In any case, since we are bound to follow the decision of the Constitution Bench, we, therefore, conclude that reinstatement is not the inevitable consequence of quashing an order of termination; compensation can be awarded in lieu of reinstatement and back wages.
28. Considering the facts of this case, we are persuaded to award compensation in lieu of reinstatement and back wages to the workman............"
In Municipal Council, Sujanpur Vs. Surinder ID No. 274/14 LALLAN JHA VS GANNON DUNKERLY & CO. LTD. Page No. 20 out of 24 Kumar 2006 LLR 662, Hon'ble Supreme Court observed that the relief of reinstatement is not automatic but is in the discretion of the court. In paragraph 16, it was observed as under : "Apart from the aforementioned error of law, in our considered opinion, the Labour Court and consequently the High Court completely misdirected themselves insofar as they failed to take into consideration that relief to be granted in terms of section 11A of the said Act being discretionary in nature, a Labour Court was required to consider the facts of each case therefor. Only because relief by way of reinstatement with full back wages would be lawful, it would not mean that the same would be granted automatically".
In Vinod Kumar & others vs Salwan Public School & others WP (C)5820/2011 dt.17.11.2013 Hon,ble Justice V. Kameshwar Rao has held as under:
11.Having considered the rival submissions of the counsels for the parties, I do not find any infirmity in the order of the Labour Court. It is a settled position of law that even if termination has been held to be illegal, reinstatement with full back wages is not to be granted automatically. The Labour Court is within its right to mould the relief by granting a lumpsum compensation. In fact, I note that the Labour Court has relied upon three judgments propounding the law that the Labour Court can mould a relief by granting lump sum compensation; the Labour Court is entitled to grant relief having regard to facts and circumstances of each case. 20 Recently, in Recently in W.P. (C) 780/2001 titled as ID No. 274/14 LALLAN JHA VS GANNON DUNKERLY & CO. LTD. Page No. 21 out of 24 N.K. Joshi versus M/S Modern Bakeries (India) Ltd. & Anrs. dt. 31.07.2014 Hon,ble Justice Vibhu Bhakru has uphold the grant of compensation in a case where termination of workman has held to be illegal. The relevant para 10 is reproduced as below:
"10. It is a trite law that the relief of reinstatement with back wages would not necessarily follow even if the dismissal of an employee from his services is held to be illegal. The relief of reinstatement and back wages is not an automatic remedy in case termination of an employee is turned down as illegal. In certain cases, compensation instead of reinstatement would be an appropriate relief. The exact nature of relief and remedy would depend upon the facts and circumstances of the case. There are various factors that need to be considered in evaluating the relief to be granted to a workman, including length of service of employee, manner and method of appointment, permanent or temporary employment, the period since dismissal of the services etc. The Supreme Court in the case of Jagbir Singh v. Haryana State Agriculture Mktg. Board: (2009) 15 SCC 327 examined catena of decisions and held as under: "7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.
ID No. 274/14 LALLAN JHA VS GANNON DUNKERLY & CO. LTD. Page No. 22 out of 24
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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."
21 Now reverting back to the case, the workman was employed with the management on 1.7.2008 and was terminated from service on 22.2.13 thus he has worked for about 4 ½ years approximately which is a short span. Further the letter of the workman Ex. WW1/1 proved that workman has himself not challenged his termination but has stated that he be given three months notice before his termination. Further as per terms of appointment, workman can be again terminated by management by giving three month notice even if I order reinstatement. Thus in these circumstances, in my view it would not be appropriate to reinstate the workman and it would be appropriate to grant lump sum compensation. Considering the fact that workman has worked for about 4 ½ year and since last two year he is litigating this case, I grant compensation of Rs. 1,50,000/ (One lacs Fifty thousand only) as retrenchment compensation in lieu of retrenchment, back wages and other consequential benefits. Reference is answered ID No. 274/14 LALLAN JHA VS GANNON DUNKERLY & CO. LTD. Page No. 23 out of 24 accordingly. The management is directed to pay the awarded compensation within 30 days from the date of publication of award, if the management fail, the management would be liable to pay interest @ 8% per annum on the awarded amount. The claim is answered accordingly.
22 The copy of award be sent to the Secretary Labour, Govt. of NCT, Delhi for publication of the award. The claim is answered accordingly. File be consigned to Record Room. The award be also sent to server (www.delhicourts.nic.in). Announced in Open Court on this 10th March, 2015.
(SANJEEV KUMAR) Additional District & Sessions Judge Presiding Officer, Labour Court, Karkardooma Courts, Delhi.
ID No. 274/14 LALLAN JHA VS GANNON DUNKERLY & CO. LTD. Page No. 24 out of 24 ID No. 274/14 LALLAN JHA VS GANNON DUNKERLY & CO. LTD. Page No. 25 out of 24