Delhi District Court
Rinku Singh vs M/S 24 Guarding And Secure Services Pvt. ... on 25 November, 2024
IN THE COURT OF SHRI ARUN GOEL,
PRESIDING OFFICER : LABOUR COURT - X
ROUSE AVENUE COURTS : NEW DELHI
LIR No. 9126/16
Smt. Rinku Singh
W/o Sh Naresh Singh,
R/o H.No.-1019A,
Tugalkabad Mohalla,
New Delhi
Through
All India General Kamgar Union (Regd.),
U-90, Shakarpur,
Delhi-110092
...... WORK LADY
Versus
(1) M/s Select Infrastructure Pvt. Ltd.,
A-3, Jila Kender,
Saket, Delhi-110017
....... MANAGEMENT NO.1
(2) M/s 24 Guarding & Secure Services Pvt. Ltd.,
Plot No-178/1, Neb Sarai,
IGNOU Road, Saket,
Delhi
....... MANAGEMENT NO.2
Date of institution of the case : 25.02.2017
Date of passing the Award : 25.11.2024
LIR No. 9126/16 Page 1/29
A W A R D:
1. A reference No. F-24(325)/Lab./SD/2016/20033, dated 07.09.2016
was received from appropriate government for adjudication and
disposal of industrial dispute between the aforesaid claimant and the
management by formulating the following terms of reference :
"Whether Smt. Rinku Singh, W/o Sh. Naresh Singh,
age-33 years, (Mobile No. 8467996207) has absconded the
service at her own; and or, if her services have been
terminated illegally and/or unjustifiably by the
management; and if so to what relief is she entitled and
what directions are necessary in this respect?"
2. A notice of the aforesaid reference was sent to the work lady for
filing of his statement of claim. On 25.02.2017, AR for the work-lady
along with work-lady appeared and filed statement of claim, wherein it
is stated that the work-lady was employed with the management since
2009 as a 'Security Guard' and her last drawn salary was Rs.9,700/- per
month and that she was working sincerely, diligently, honestly and she
had unblemished record of service with the managements and as such
there was no complaint against her regarding the performance of her
duty.
3. It is further stated that the work lady was not provided with her
legal entitlements and benefits such as HRA, TA, bonus, night shift
allowance, annual increments etc. and that when she repeatedly
demanded for the same, she was only given hollow assurances by the
LIR No. 9126/16 Page 2/29
management.
4. It is further stated that the management had obtained signatures and
thumb impressions from the work lady on blank papers and vouchers at
the time of joining the services of the management stating that the same
would be used in PF and ESIC purposes only. It is further stated that the
management was not maintaining the statutory records of the work-lady
like attendance register, leave register, wages register etc and that the
work-lady was performing a minimum of 4-6 hours overtime daily,
however, the management refused to pay any overtime dues to the
work-lady despite repeated demands. The work lady was recruited by
the management no.1 for the post of security Guard and the
management No.2 was the sham contractor.
5. It is further stated that the management no.1 routed the work lady
through the management no.2 without the consent and knowledge of
the work lady and the management no.2 issued new appointment letter
to the work lady upon objection. The work lady was assured by the
management no.1 at the time of appointment that they would continue
to work with them and the service condition would not be affected in
any way irrespective of the change of any contractor.
6. It is further stated that the work lady continued to work with the
principal employer i.e. management no.1 and their employment was not
LIR No. 9126/16 Page 3/29
for a specific period or project and it become their conditions of
services and their service would not cease to exist at the change of
contractor at any time. Hence, they should have been retained in the
services of the management no.1, even if a new contractor had been
injected in the place of management no.2. Moreover, it is the duty of
the management no.1 to ensure that employment of the contractors are
severed properly after complying the legal provisions, However the
work-lady was retrenched from duty without any prior notice or reason
in contravention of section 25F and 25G of ID Act and as such she is
entitled for reinstatement on duty with all consequential benefits.
7. It is further stated that the contracts entered into between the
principal employer and contractors were sham contracts with perfect
paper work to deprive the work lady of her legitimate benefits. She was
not paid minimum wages and no other benefits were given to her.
However, PF and ESI deductions were regularly deducted from her
salary. The contractors were not even having the license to engage the
contract employee.
8. It is further stated that the management no.1 has been taking work
directly from the work lady and supervising the work and it created a
sham contract with other managements only to deprive the work lady of
her legitimate rights. It is further stated that when the work lady has
demanded her statutory benefits from the management, it became
LIR No. 9126/16 Page 4/29
annoyed and pressurized the work lady to give resignation letter
voluntarily and when the work lady refused to give the same, the
management forcefully obtained the apology letter from the work lady
by stating that if she will not give the said letter, her services will be
terminated and that to save her services the work lady wrote the
apology letter to the management on their dictation.
9. It is further stated that services of the work lady were terminated
by the managements without assigning any reason and she was not
taken on duty w.e.f. 12.03.2016, however she was reporting for duty
regularly but she was not taken back on duty.
10. Being aggrieved, the work lady served a demand notice upon the
management calling upon the management to reinstate the work lady in
service with continuity of service with full back wages and all other
consequential benefits, however, the managements did not reply to the
same.
11. It is further stated that no notice was given to the work lady before
terminating her from services and that the work-lady is unemployed
since the date of her illegal termination and prayed that the
Management be directed to reinstate her to services with full back
wages and consequential benefits.
LIR No. 9126/16 Page 5/29
12. Notice of the claim was issued to the management for filing of
written statement. Written statement has been filed on behalf of the
management no.1 wherein it is stated that management no. 1 was a
company incorporated under the provisions of the Companies Act. The
management no. 1 was providing various services, such as, chilled water
supply, security, housekeeping in common area of Select Citywalk, etc.
to the occupiers of Select Citywalk.
13. It is further stated in the written statement that the management No.
1 is a registered principal employer under the Contract Labour
(Regulation and Abolition) Act, 1970, vide Certificate of Registration
bearing no. CLA/PE/38/2008/DLC (S) dated 14.08.2008, issued in
favour of the Respondent no. 1. It is further stated that the management
No. 1 has appointed management No. 2 namely M/s Twenty Four Secure Services (P) Ltd., a company incorporated under the provisions of the Companies Act, 1956, having its registered office at 5, Mathura Road, Jangpura-A, New Delhi 110014 through Agreement dated 28th August, 2008, for providing the security services within the common area of Select Citywalk for a period of one year, with effect from 1st September, 2008 to 31st August, 2009. Thereafter, every year, the management No. 1 has executed a fresh agreement with the management No. 2 for providing the security services within the common area of Select Citywalk. It is further stated that at the time of appointing the management No. 2 as a service provider, the LIR No. 9126/16 Page 6/29 management no. 2 assured the management no. 1 that the respondent no. 2 has obtained the statutory license as a contractor under The Contract Labour (Regulation and Abolition) Act, 1970 to provide the above said services to the Respondent 1 at Select Citywalk.
14. It is further stated in the written statement that as per the clause 4
(f) of the Agreement dated 28th August, 2008 and 24th July, 2015, which were executed between the managements no. 1 & 2, all matters pertaining to employment, supervision, compensation and/or discharges of employees and manpower to be deputed by the management no. 2 at Select Citywalk shall be at its sole discretion and responsibility. It is further stated that as per the provisions of the Agreement dated 28th August, 2008 and 24th July, 2015, the management No. 1 had paid wages, as per the rules of the State Government, to the management no.2 within the due time, as specified in the agreement based on the bills submitted by the management no.2 to the respondent no. 1. All other contentions mentioned in the statement of claim of the work lady are denied.
15. Written statement has also been filed on behalf of the management no.2, wherein it is stated that the Statement of Claim filed by the work lady is frivolous and is devoid of any merit and deserves to be rejected summarily. It is further submitted that no company by the name of "M/s 24 Guarding & Secure Services Pvt. Ltd." exists, as alleged by the work LIR No. 9126/16 Page 7/29 lady in the Statement of Claim. The work lady was employed with Management No. 2 i.e., M/s Twenty Four Secure Services Pvt. Ltd. Moreover, Notice was also served at the registered office of M/s Twenty Four Secure Services Pvt. Ltd. Therefore, the present reply was filed by M/s Twenty Four Secure Services Pvt. Ltd i.e., the Management No. 2.
16. It is further submitted that Management No. 2 company is one of the primary service providers in India. It has endeavored to bring the best security solutions to its customers. The work lady was employed by Management No. 2 as a Lady Searcher (Employee Code: 3005) with a Gross monthly salary of Rs.11,613/-. The work lady was employed since 12.11.2011 and stopped reporting for duty on 16.03.2016 and subsequently on 28.03.2016, was declared absconder after due process by the Management No. 2. It is further submitted that during the course of employment the work lady indulged in various malpractices including theft and serious dereliction of duties. It is further stated that work lady has herself confessed to the said incidents along with apology letters dated 26.12.2015 and 15.03.2016 undertaking to not repeat such conduct. The work lady's acts have not only caused embarrassment to the Management No. 2 but also tarnished the goodwill of the Management No.2 in the market.
17. It is further submitted that vide apology letter dated 26.12.2015 the LIR No. 9126/16 Page 8/29 work lady confessed to stealing flex boards kept outside the mall premises and further vide apology letter dated 15.03.2016, the work lady confessed to continuously talking on phone and ignoring her duties despite being warned at least three times. She further confessed that owing to her talking on phone female customers were entering the premises without checking. A complaint letter dated 16.03.2016 was also received from the staff against the said incident. The Management No. 2, in view of the above stated serious derelictions of duty, including theft, issued two warning letters dated 26.12.2015 and 05.04.2016 cautioning the work lady. From the above, it is incontrovertible that the work lady was in serious breach of terms and conditions of her employment and thereby caused embarrassment to the Management No. 2. Her acts also caused damage to the goodwill and reputation of the Management No. 2 in the market. However, the Management No. 2 took a lenient view and only issued warning letters instead of terminating the services of Management No. 2.
18. It is further submitted that the work lady was neither terminated nor forced to resign by the Management No. 2. The work lady, without any leave or intimation, stopped reporting for duty on 16.03.2016 and subsequently on 28.03.2016, was declared absconder after due process by the Management No. 2. It is submitted that during the tenure of her service the work lady never performed duties assigned to the work lady satisfactorily. The work lady was negligent in performing her duties. It LIR No. 9126/16 Page 9/29 is further submitted most days of the month, the work lady would absent herself from the duty without any prior intimation or would not report to duty on time or leave early. She was given several oral warnings, however, she failed to adhere to it. In these circumstances, the work lady is not entitled to any relief and present Claim of the work lady is liable to be dismissed with heavy costs.
19. Rejoinder to the written statement filed on behalf of the work-lady wherein is she reiterated and reaffirmed the contentions as mentioned in her statement of claim and denied all the contentions mentioned in the WS filed on behalf of the management.
20. On completion of pleadings of the parties, following issue were settled on 16.03.2022:
1. Whether services of claimant Smt. Rinku Singh W/o Shri Naresh 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?...OPW
2. Whether claimant stopped reporting for duty without any leave or intimation from 16.03.2016 and was declared 'absconder' on 28.03.2016 after due process by management No.2?..OPM2
3. Relief.LIR No. 9126/16 Page 10/29
21. Thereafter, matter was listed for workman evidence. On 07.12.2023, WW-1 Ms. Riku Singh has tendered her affidavit Ex.WW1/A and he relied upon the documents: (i) Ex.WW1/1, copy of ESI card, (2) Ex.WW1/2, photographs with the management, (3) Ex.WW1/3, training certificate, (4) Ex.WW1/4, copy of demand notice, (5) mark A postal receipt. She was duly cross examined by Sh. Sarvesh Rai, AR for the management no. 1 and Ms. Suditi Batra, AR for the management no.2. Thereafter, vide separate statement of the work lady, evidence was closed and the matter was fixed for management evidence.
22. In defence, management no.2 has produced Sh. Shivam as M2W1.
He tendered his evidence by way of affidavit Ex.M2W1/A. He had relied upon the following documents: (i) original of Board Resolution dated 27.10.2023 Ex.MW2/1, (ii) copy of salary slip of the work lady Mark- A (colly), (iii) copy of EPF return of management no.2 Mark-B (colly) (iv) copy of ESIC record of management no.2 Mark- C (colly)
(v) copy of register of wages Mark- D (colly) (vi) copy of apology letter dated 26.12.2015 Mark- E (vii) copy of apology letter dated 15.03.2016 Mark- F (viii) copy of complaint letter dated 16.03.2016 Mark- G (xi) copy of warning letter dated 26.12.2015 Mark-H (x) copy of warning letter dated 05.04.2016 Mark-I (xi) copy of Declaration dated 28.03.2016 by management no.2 Mark-J. He was cross examined by Sh. Anil Rajput, AR for the work lady and vide separate statement of Sh. Shivam, evidence on behalf of the management no.2 was closed.
LIR No. 9126/16 Page 11/29Vide separate statement of Sh. Jagdeep Rana, Manager, Legal for Management no.1, evidence on behalf of the management no.1 was closed as they had chosen not to lead any evidence. Thereafter, matter was adjourned for final arguments.
23. Arguments heard from both the parties. Record perused.
24. Now, in the light of evidence available on record and submissions made by both the parties, my issue wise findings are as under: -
ISSUES NO. 1 & 2:
25. Issues no. 1 and 2 are decided together. The work lady has claimed that she was appointed as 'Security Guard in the year 2009 and her last drawn salary was Rs.9,700/- per month. It is further claimed that she was recruited by Management no.1 at the post of 'Security Guard' while management no.2 was a contractor. She further claimed that her service record was unblemished, however, the management was not providing her with statutory and legal facilities and when she demanded the same her services were illegally terminated on 12.03.2016.
26. The management no1 in their written statement has denied employer-employee relationship between the parties. It is stated that the management no.1 has hired the management no.2 for providing security LIR No. 9126/16 Page 12/29 services and the security services were provided by the management no.2. It is further claimed that the work lady was the employee of management no.2.
27. The management no.2 in their written statement has not denied the employer-employee relationship between the parties, however, it is claimed that work lady was employee since 12.11.2011 and she stopped reporting for duty on 16.03.2016 and subsequently on 28.03.2016 she was declared absconder. It is further claimed that the services were not terminated by the management, however, the work lady has herself left the services without intimation.
28. As far as management no.1 is concerned they have denied the employer-employee relationship between the parties and the management no.1 had cross-examined the work lady, who examined herself as WW-1. The relevant part of the cross-examination is reproduced as below:-
" My salary had been given by management no.2 in the account opened by M-2 and identity card was also issued by M-2. There was no other ID card issued by anyone except by M-2. I have been employed by 24 Secure (i.e., M-2). Overtime was done at the instance of M-2 and not at the instance of M-1. It is correct that all the deductions in the Salary,ESI ,PF was done by M-2.It is correct that the M-1 has never taken my signature and thumb impression on blank papers. It is correct that M-1 has no liability towards the claim. (Vol. My services were terminated at the instance of the M-1. It is wrong to suggest that my services were terminated at the instance of M-1)".LIR No. 9126/16 Page 13/29
29. Perusal of the cross-examination conducted on behalf of Management-1 reveals that the work lady herself admitted that all the facilities that is payment of salary, ESI, PF was provided by the M-2, her interview was also taken by the M-2 and it is further admitted that there is no claim towards M-1. Thus, there is no relationship between work lady and M-1.
30. The management no.2 had not denied the existence of employer employee relationship, however, it is claimed that the work lady had joined the services on 12.11.2011. On the other hand, the work lady has claimed that she did joined the services of the management in the year 2009. The management no.2 had examined Sh. Shivam as M2W1 who tendered his evidence by way of affidavit. He was cross-examined and during his cross-examination, ID card was put by the AR for the work lady to the witness, who admitted that the same was issued by the management and it was exhibited as M2/W1. Perusal of the ID exhibited as M2W1 reveals that the same that it has been issued on 14.01.2009 with expiry date of 13.01.2010. Thus, Ex.M2/W1 clearly establishes that the work lady was working with the management in the year 2009.
31. The management in the present case has taken defence that they have not terminated the services of the work lady in fact she had LIR No. 9126/16 Page 14/29 abandoned her services and had not reported for duties since 16.03.2016, thus the management has taken the defence that the work lady had abandoned her services, in that case the onus is upon the management no.2 to prove this fact. The law regarding the abandonment of services by an employee and how it is to be inferred is explained by Hon'ble Supreme Court in case titled as G.T. Lad v. Chemical and Fibres of India Ltd., (1979) 1 SCC 590 wherein Court observed as follows:
"5a. Re Question 1:In the Act, we do not find any definition of the expression "abandonment of service". In the absence of any clue as to the meaning of the said expression, we have to depend on meaning assigned to it in the dictionary of English language. In the unabridged edition of the Random House Dictionary, the word "abandon" has been explained as meaning "to leave completely and finally; forsake utterly; to relinquish, renounce; to give up all concern in something".
According to the Dictionary of English Law by Earl Jowitt (1959 Edn.) "abandonment" means "relinquishment of an interest or claim". According to Black's Law Dictionary "abandonment" when used in relation to an office means "voluntary relinquishment". It must be total and under such circumstances as clearly to indicate an absolute relinquishment. The failure to perform the duties pertaining to the office must be with actual or imputed intention, on the part of the officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the party, and is a question of fact. Temporary absence is not ordinarily sufficient to constitute an "abandonment of office".
LIR No. 9126/16 Page 15/296. From the connotations reproduced above it clearly follows that to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same. In Buckingham & Carnatic Co. v. Venkatiah [AIR 1964 SC 1272 : (1964) 4 SCR 265 : (1963) 2 LLJ 638 : (1963-64) 25 FJR 25] it was observed by this Court that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to a employee without adequate evidence in that behalf. Thus, whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstances of each case.
Thus, there was nothing in the surrounding circumstances or the conduct of the appellants indicating or suggesting an intention on their part to abandon service which in view of the ratio of Gopal Chandra Misra case[Union of India v. Gopal Chandra Misra, (1978) 2 SCC 301 : 1978 SCC (L&S) 303] , can be legitimately said to mean to detach, unfasten, undo or untie the binding knot or link which holds one to the office and the obligations and privileges that go with it. Their absence from duty was purely temporary and could, by no stretch of imagination, be construed as voluntary abandonment by them of the Company's service. In Express Newspapers (P) Limited v. Michael Mark [AIR 1963 SC 1141 : (1963) 3 SCR 405 : (1962) 2 LLJ 220 : 22 FJR 346] , which is on all fours with the present case, it was LIR No. 9126/16 Page 16/29 held that if the employees absent themselves from the work because of strike in enforcement of their demands, there can be no question of abandonment of employment by them. In the present case also the appellants' absence from duty was because of their peaceful strike to enforce their demand. Accordingly, we are of the view that there was no abandonment of service on the part of the appellants."
32. In the present case, management no.2 has examined Sh. Sivam M2W1. He was cross-examined by the Ld. AR for the work lady and during his cross-examination the witness stated as follows:-
" At this stage, witness is shown copy of the identity card. He admits the same to have been issued by the management which is Ex.M2/W1. It is wrong to suggest that the workman had not abandoned his services from 16.03.2016. It is wrong to suggest that management had forcibly taken apology letter from the workman. It is wrong to suggest that the workman did not commit repeated mistakes during his employment with the management no. 2.
At present the name of the work lady is not on the rolls of the management no.2. Vol. The management had declared the work lady as absconder and had struck off the name of the work lady in the rolls of the management no.2. The management had not sent any notice to the work lady asking her to join her duties. Vo. The management had made oral requests to the work lady to join her duties, the management had also issued absconding letter dated 26.03.2016 which is Mark-J".
33. Perusal of the cross-examination of the M2W1 reveals that the management no.2 had not issued any notice to the work lady asking her LIR No. 9126/16 Page 17/29 to join her duties. The management had never made any offer to the the work lady before the conciliation officer to rejoin his duties. The management had never during the pendency of the case asked the worklady to rejoin his duties. if for the sake of argument it is admitted that the work lady had abandoned her services, the management could have issued notice to her,to report for duties but no such action had been done. On the other hand, the work lady claimed that her services were terminated on 12.03.2016. She had immediately served the demand notice upon the management claiming reinstatement. Thereafter she filed her claim before conciliation proceedings alleging her illegal termination. If the work lady had abandoned her services, she would not have immediately taken steps to get her join reinstated with the management. This conduct on the part of the work lady does not shows any intention of abandonment of her services.
34. During arguments, it was also stated by AR for the management that the work lady was issued certain warning letters and there was misconduct on the part of the work lady, however, this contention of the management is not maintainable as the management has not alleged that the services of the work lady was terminated by way of punishment. Moreover, it is an admitted fact on behalf of the management that they have not conducted any domestic enquiry against the work lady, thus the management has failed to prove that the work lady had abandoned her services. Management has also failed to prove that before LIR No. 9126/16 Page 18/29 terminating services of the work lady they had complied with Section 25 (F) of the I.D Act and had paid retrenchment compensation to the work lady. Hence both these issues are decided in favour of the work lady.
RELIEF:
35. The work lady in this case has prayed for reinstatement and back wages with all consequential benefits. It was argued during final arguments that the workman was drawing salary of Rs.9,700/- per month at the time of termination of employment. As regards the back wages, the law is settled by the Hon'ble Supreme Court of India in case of UP State Brassware Corporation Ltd. vs. Uday Narain Pandey, JT 2005 (10) SC 344, wherein it has been held :
"The Industrial Courts while adjudicating on disputes between the management and the workman, therefore, must taken such decisions which would be in consonance with the purpose the law seeks to achieve. When justice is the buzzword in the matter of adjudication 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. A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance. The Court, therefore, emphasised that LIR No. 9126/16 Page 19/29 while granting relief, application of the mind on the part of the Industrial Court is imperative. payment of full back wages, therefore, cannot be the natural consequence."
36. While dealing with the relief of reinstatement. In case of Surender Kumar Verma Vs. Central Government Industrial TribunalcumLabour Court, New Delhi (supra), (1980) 4 SCC 443, it has been further observed as under :
"Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been, and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable visAvis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums; the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the court to make appropriate consequential orders. The court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not, comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the LIR No. 9126/16 Page 20/29 employer if the relief is granted.
37. The above noted observations have been reiterated in the case of Sita Ram Vs Motilal Nehru Farmers' Training Institute, JT 2008 (3) SC 644 ; Jagbir Singh Vs. Haryana State Agricultural Marketing Board, JT 2009 (9) SCC 396 and Ashok Kumar Sharma Vs. Oberoi Flight Services, 2009 XI AD (SC) 401.
38. The Hon'ble High Court of Delhi in the case of Management of Asiatic Airconditioning and Refrigeration Pvt. Ltd. vs. POLCX and Ors. reported in 2005ILLJ 79 has laid down a list of illustrative factors for determination of compensation in lieu of back wages.
39. In recent case of Punjab National Bank vs. Manoj Kumar in W.P. (C) 4770/2007 decided 16th October, 2024, the Hon'ble Delhi High Court while dealing with the relief of reinstatement and full back wages has observed as follows:
"Reinstatement is an act which aims to rectify an act of wrongful termination by restoring an employee to their previous position on the same terms and conditions of their appointment. However, the settled position of law is clear with regard to the said relief as the Courts in a catena of judgments, have repeatedly held that the ordinary principles of reinstatement do not automatically apply in all cases."
52. Undoubtedly, if a termination is found to be violative in LIR No. 9126/16 Page 21/29 terms of non-compliance of prerequisites as mentioned under Section 25F of the ID Act, the relief of reinstatement ordinarily follows, however, the jurisprudence qua the same has shifted in the recent times as the Courts have consistently held that the said relief is not automatic and the workman shall be fairly compensated in lieu of the relief of reinstatement.
53. Reliance in this regard can be placed upon the judgment passed by the Hon‟ble Supreme Court in Jagbir Singh v. Haryana State Agriculture Marketing Board and Another , wherein it was held that the relief of reinstatement shall not be granted automatically, and the relief to be granted depends upon the peculiar facts and circumstances wherein the Labour Court may also award monetary compensation instead of reinstatement to meet the ends of justice. The relevant extracts of the same are as follows:
"7. It is true that the earlier view of the Supreme Court articulated in many decisions reflected the legal position that if the termination of an employee was 6 (2009) 15 SCC 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, the Supreme 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. An order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not be automatically passed.
The award of reinstatement with full back wages in a case where the workman particularly a daily wager, who has completed 240 days of work in a year preceding the date of termination has not been found to be proper. Compensation instead of reinstatement has LIR No. 9126/16 Page 22/29 been held to meet the ends of justice. The Supreme Court has distinguished between a daily wager who does not hold a post and a permanent employee. ****
14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25- F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee."
54. The finding of the learned Tribunal qua the grant of relief of reinstatement to the present workman, with full back wages, was opposed by the learned counsel for the PNB. He placed reliance upon a recent decision passed by this Court in AIIMS v. Ashok Kumar (Supra), wherein it was held as follows:
"25. Bearing in mind the reasoning afforded by the learned Labour Court, this Court deems it imperative to briefly state the position of law as to in what circumstances may the Court grant the relief of compensation in lieu of reinstatement. The Hon'ble Supreme Court in State of Uttarakhand v. Raj Kumar, (2019) 14 SCC 353, observed as to how and when must the Labour Court/Tribunal grant the relief of compensation in lieu of reinstalment along with back wages. The relevant paragraphs are reproduced herein below:LIR No. 9126/16 Page 23/29
".....9. In our opinion, the case at hand is covered by the two decisions of this Court rendered in BSNL v. Bhurumal [BSNL v. Bhurumal, (2014) 7 SCC 177 : (2014) 2 SCC (L&S) 373] and Distt. Development Officer v. Satish Kantilal Amrelia [Distt. Development Officer v. Satish Kantilal Amrelia, (2018) 12 SCC 298 : (2018) 2 SCC (L&S) 276]. 10. It is apposite to reproduce what this Court has held in BSNL [BSNL v.
Bhurumal, (2014) 7 SCC 177 : (2014) 2 SCC (L&S) 373] : (SCC p. 189, paras 33-35)
33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily- wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.
34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of nonpayment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the LIR No. 9126/16 Page 24/29 services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] ]. Thus when he cannot claim regularisation and he has no right to continue even as a daily-wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.
35. We would, however, like to add a caveat here. There may be cases where termination of a dailywage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied......"
26. Upon perusal of the aforementioned judicial dictum, it is inferred that ordinarily when the termination is found to be illegal, the principle of grant LIR No. 9126/16 Page 25/29 of reinstatement with full back wages has to be applied as per the facts and circumstances of each case and shall not be awarded mechanically. It is further observed that termination of a daily-wage worker where, found illegal on account of procedural defects, reinstatement with back wages is not to be construed automatically rather, in the interest of justice, the workman shall be granted a relief in the form of a lump sum monetary compensation as it is more appropriate.
55. The learned counsel for the PNB has also relied upon another judgment of the Hon‟ble Supreme Court passed in Senior Superintendent Telegraph (Traffic) Bhopal v. Santosh Kumar Seal and Ors.7 , wherein a similar view was taken that even if the termination of the workman is found to be illegal, being in violation of Section 25F of the ID Act, the relief of reinstatement shall not be mechanically granted. The workmen therein were engaged as daily wagers, 25 years before the date of judgment, who worked for a period of 2 to 3 years, therefore, the reinstatement with full back wages granted by the learned Tribunal was found to be unjustified and the workmen were awarded a compensation amount to the tune of Rs. 40,000/- each in lieu of the services rendered by them during the relevant period.
56. The principle discussed herein above has also been affirmed by the Hon'ble Supreme Court in the judgment M.P. Admn. v. Tribhuban, wherein it was directed that that non- compliance of Section 25F of the ID Act entitles a workman for some relief and such relief does not necessarily has to be the reinstatement, instead, if the Court deems fit, compensation may be awarded.
57. Therefore, it is transpired that the Hon‟ble Supreme Court, in a catena of decisions, has time and again substituted the direction of reinstatement with full back wages by monetary LIR No. 9126/16 Page 26/29 compensation."
40. The work lady in this case is engaged in a private company and the nature of the job performed by the worklady is of security guard. The termination of the worklady is bad due to non compliance of provision of retrenchment. If the work lady is reinstated in the job. It may result in fresh industrial dispute as the workman as the management can again terminate her job as they have levelled serious allegation of theft upon her. The trust between the work lady and the management had broken. Keeping in view these facts the court is not inclined to grant relief of reinstatement to the workman.
41. As regards the back wages, the law is settled by the Hon'ble Supreme Court of India in case of UP State Brassware Corporation Ltd. vs. Uday Narain Pandey, JT 2005 (10) SC 344, wherein it has been held :
"The Industrial Courts while adjudicating on disputes between the management and the workman, therefore, must taken such decisions which would be in consonance with the purpose the law seeks to achieve. When justice is the buzzword in the matter of adjudication 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. A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance. The Court, LIR No. 9126/16 Page 27/29 therefore, emphasised that while granting relief, application of the mind on the part of the Industrial Court is imperative. payment of full back wages, therefore, cannot be the natural consequence."
42. As far as relief of full back wages is concerned, it does not appear plausible that the worklady would not be engaged in some kind of work. she has not produced any evidence to show the efforts made by her to find new employment. The Hon'ble Supreme court in judgement titled as Rajasthan State Road Transport vs Phool Chand (D) through LRs, AIR 2018 Supreme Court 4534 while dealing with the relief of full back wages has held as under:
"11. In our considered opinion, the Courts below completely failed to see that the back wages could not awarded by the Court as of right to the workman consequent upon setting aside of his dismissal / termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favor and directed his reinstatement in service.
12.It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee."LIR No. 9126/16 Page 28/29
43. In view of the above stated facts and law, the court is of the considered opinion that reinstatement of the work lady could not be justified. The justice would be served by granting her lump-sum compensation instead of reinstatement. Taking into account, the period of the services of the work lady, the nature of duties performed by her and other surrounding circumstances, an award of Rs.1,50,000/- granted in favour of the work lady which includes the cost of litigation.
44. The management is directed to pay the said amount of award within a period of one month from the date of publication of award failing which the management shall be liable to pay an interest of 6% per annum from the date, it becomes due and till realization order accordingly.
45. Present claim of the work lady is disposed of accordingly. A copy of this order be sent to the Competent Authority for publication and compliance as per rules.
46. File be consigned to record room.
Digitally signedARUN by ARUN GOEL Date: Announced in open court GOEL 2024.11.26 14:18:20 +0530 on Dated: 25.11.2024 (Arun Goel) District Judge, POLC - X Rouse Avenue Courts New Delhi: 25.11.2024 LIR No. 9126/16 Page 29/29