Delhi District Court
Others vs Yelamarti Satyam @ Satteyya And Others. on 7 October, 2013
BEFORE THE COURT OF SH. RAKESH KUMAR SHARMA
PRESIDING OFFICER:LABOUR COURT XVII:KKD:DELHI
DID No.31/07.
Unique ID No. 02402C0136902007.
Smt. Poonam W/o Sh. Jagannath,
C/o Shahdara General Udyog Shramik Union ( Regd.),
1/2481, Gali No. 26, Moti Ram Road,
Modern Shahdara, Delhi110032.
............. Workman
Versus
i) M/s. Chetan Exports,
51/6, Deshbandhu Gupta Road,
Karol Bagh, New Delhi 110005.
Through Sh. Shiv Saran,
Sh. Sandeep Saran, Partner.
.............Management No.1
ii) M/s. Saran Exclusif
51/6, Deshbandhu Gupta Road,
Karol Bagh, New Delhi 110005.
Through Sh. Shiv Saran,
Sh. Sandeep Saran,
Sh. Sanjiv Saran, Partner.
.............Management No.2
DATE OF INSTITUTION : 17.02.2007.
DATE ON WHICH AWARD RESERVED : 07.10.2013.
DATE ON WHICH AWARD PASSED : 07.10.2013.
DID 31/07 1/29
A W A R D :
1. This is a direct industrial dispute filed by the workman under
Section 2A read with Section 10 (4A) of the Industrial Disputes Act
(hereinafter "the Act") against the management.
2. In her claim, it is submitted by the workman that she was working
with management No.1 since February, 1989 on the post of Repairman
(Final). Her last drawn salary was Rs.3200/ per month. Both the
managements are engaged in same kind of business. They are working
under the same roof, have a single office without any partition and
employees of one management work for the other management also, as
per the oral directions given by the managements. The employees are
made to work in both the managements in such a way that it is difficult
for the employee to find out as to whose employee he/she is, even after
working for the managements for years. However, both the managements
have been separately registered under ESIC and EPF. The managements
never prepared the records of the workman properly, never issued any
appointment letter nor it ever gave the other legal facilities like annual
leaves, causal leaves, minimum wages, designation as per the work of the
workman, salary as per the designation of the workman, overtime, bonus,
DID 31/07 2/29
leave book, wages slip, attendance card, etc, etc. Whenever the workman
demanded the same, the managements gave only false assurances. The
managements obtained signatures of the workman on some blank papers,
printed forms, vouchers with revenue stamps and receipt for full and final
settlement on the pretext of giving these facilities. The management
showed the appointment of the workman from a date later than the date
on which she actually joined and she was covered under the ESI and EPF
by the management from such later date. The workman has never left the
job nor she has taken full and final settlement. When the workman with
other female employees of the management demanded the aforesaid legal
facilities with arrears of bonus for the last 45 years, managements
terminated her services w.e.f 23.10.2006 without any notice or notice pay
or retrenchment compensation or payment, illegally and unjustifiably.
They also withheld the salary of the workman for the months of
September and October 2006. The termination is in violation of Section
25 F of the Act. Employees junior to the workman are still working with
the managements, which is in violation of Section 25 G of the Act. The
managements have also appointed some other person in place of the
workman after her termination, which is in violation of Section 25 H of
the Act. The workman with other females employees of the
managements sent a complaint to the Conciliation Officer, Pusa Road and
DID 31/07 3/29
a demand notice through Sh. Naresh Kumar, Advocate to the
managements. The managements did not reinstate the workman despite
receipt of the notice. The workman with other female employees of the
managements became a member of Shahdara General Udyog Shramik
Union (Regd.) on 03.11.06 and again lodged a complaint in the Labour
Office through the Union and raised the demand in respect of the bonus.
The Union also sent a demand notice dated 03.11.06 to the managements
by registered AD as well as UPC. Despite service of the demand notice,
no reply was sent by the managements. On the joint complaint dated
23.10.06, the Labour Inspector Sh. Haridas and Sh. S.K. Yadav
approached the managements on 06.11.06, where the Proprietor of the
managements Sh. Shiv Saran refused to reinstate the workman and the
other similarly terminated female employees but stated that he shall make
the payment of earned wages on 07.11.06 in the factory itself. This
statement of Sh. Shiv Saran was recorded by the Labour Inspector Sh.
Haridas which was signed by Sh. Shiv Saran and Sh. Nain Singh, (a
representative of the Union). However, only the earned wages for
October 2006, and that too less than minimum wages, was paid on
08.11.06 in the presence of Labour Inspectors Sh. Haridas and Sh. S.K.
Yadav, which the workman accepted under protest, which was noted by
the Labour Inspector Sh. Haridas in his proceedings. It is only on
DID 31/07 4/29
08.11.06 i.e. at the time of payment of earned wages that the workman
and other employees came to know for the first time that the
managements have shown 20 persons to be employees of M/s. Saran
Exclusif and the remaining three to the employees of M/s. Chetan
Exports. When the records of both the managements were checked by the
Labour Inspector, it was found that the name of only four employees were
registered in the records of M/s. Saran Exclusif (Management No.2) and
there were only 3 names in the register of M/s. Chetan Exports
(Management No.1). The managements failed to produce records of other
16 employees. It was learnt that no records of these 16 employees was
prepared. The earned wages for the month of October 2006 of these 16
employees were paid on a plain paper after obtaining their signatures. The
managements admitted these 16 employees also to be the employees of
M/s. Saran Exclusif (Management No.2). The workman has never left the
job of her own will and she is still ready to work with the management.
The workman is unemployed since the date of her termination despite her
best efforts. Hence, the present claim seeking reinstatement with full back
wages and continuity of services.
3. Both the managements contested the claim by filing a joint written
DID 31/07 5/29
statement. Relationship of employee and employer between the
workman and the management No. 1, last drawn salary of the workman
being Rs.3,200/ per month and sending of the legal notice by the
workman are not disputed by the managements. The other contents of the
claim are denied by the managements. It is submitted by the
managements that workman was working as Helper with management
No. 1 w.e.f. October, 1995 only. The management never terminated her
services and even today, it is willing to employ the workman. It is the
workman who has failed to resume her duties and has not approached the
managements. She has herself remained absent from duties despite offer
and willingness on the part of the managements to employ her. Even in
the conciliation proceedings, the management offered employment to the
workman but despite the offer, she failed to resume her duties. The legal
notice was duly replied by the management. The workman is gainfully
employed with some other employer. The managements have sought
dismissal of the claim with costs.
4. In her rejoinder, the workman has controverted the pleas of the
managements and has reiterated those of her claim.
DID 31/07 6/29
5. From the pleadings of the parties, following issues were framed:
1. Whether the workwoman has been voluntarily absenting
from the services of management as stated in para 2 of
PO of WS, if so, its effect? OPM
2. Whether services of workwoman have been terminated
illegally and / unjustifiably by the management, if so, its
effect? OPW.
3. Relief
6. The workman examined two witnesses including herself in support
of her case whereas although the managements filed two affidavits of Sh.
Pawan Kumar, the witness was not produced for his crossexamination.
Evidence of the managements was closed by the order of the Court.
7. Joint written arguments were filed by the managements who have
relied upon the following authorities in support of their contentions:
a) ( 1972) 4 SCC 562, SAIT Tarajee Khimchand and
others vs Yelamarti Satyam @ Satteyya and others.
b) 2009 (2) RCR ( Civil ) 380, Karnail Singh vs M/s Kalra
Brothers, Sirsa.
c) 2009 (5) RCR ( Civil) 130 M/s. Enn Ess electronics
DID 31/07 7/29
Jalandhar and ors vs Smt. Harbans Kaur & others.
d) AIR 2000 Delhi 300, Surender Bala and another vs M/s
Sundeep Foam Industries. P. Ltd.
8. Ld. Authorised Representative for workman (ARW) relied upon
the following authorities in support of his contentions:
a) JT 2004 (7) SC 320, M/s Nicks ( India ) Tools vs Ram
Surat & another.
b) 2008 LLR 549, Sita Ram Vs Motilal Nehru Farmers
Training Institute.
c) 2009 LLR 766, U.P. Rajkiya Nirman Nigam Ltd vs Ram
Kumar Shukla and Anr.
d) 2002IILLJ 66, Thilagam G. and Others vs Presiding
Officer, Labour Court, Salem and Another.
9. I have heard Authorised Representatives of both the parties and
have also gone through the record including the written arguments filed
by the managements as well as the authorities relied upon by both the
parties.
10. My issuewise findings are as follows:
DID 31/07 8/29
ISSUES NO. 1 & 2
11. Both the issues are being taken up together as both are
interconnected. The burden of proving issue No. 1 was on the
managements, whereas the burden of proving issue No. 2 was on the
workman.
12. It has been held in 2003 ( 98) FLR 261, Tin Box Company Vs
Inderjit Singh as follows:
"4. He has also placed a decision of the Allabad High Court in
Airtech Private Ltd. v. State of Uttar Pradesh and others,
wherein a similar fact situation had arisen. In the said decision,
it has been observed that the statement of claim supported by the
affidavit of the claimant constitute the preliminary evidence and
it is upon the Management / employer to controvert the same and
if not so controverted then nothing further needs to be proved
and done by the claimant. However, the primary responsibility of
establishing his case rests on the claimant. And in that case, the
Allahabad High Court held that the Labour Court had patently
erred in holding that the burden of proof lay upon the employers.
It further held that the obligation to lead evidence to establish an
allegation made by a party is on the party making the allegation.
The test would be, who would fail if no evidence is led. The party
making the allegation and seeking redressal must seek an
opportunity to lead evidence. A similar view was taken by the
DID 31/07 9/29
Division Bench of the said Allahabad High Court in the case of
V.K. Raj Industries v. Labour Court and others.
5. Agreeing with the view taken in the said decision of the
Allahabad High Court, I hold that the impugned order dated 22nd
February, 1989 passed by the Labour Court asking the petitioner
to lead evidence first cannot be sustained in law an, I
accordingly quash the same. The claimant is to lead evidence
first as it is he who has to establish his allegations. The matter is
remanded to the Labour Court for adjudication as per provisions
of law. It is made clear that this Court has not expressed its view
on the merits of the reference. In these circumstances there shall
be no order as to costs."
(underlining be me.)
13. It is clear from the authority that the initial burden of proving
the case is on the workman.
14. In her affidavit filed as examinationinchief, the workman as
WW1 almost fully supported her case as stated in her claim and relied
upon complaint dated 23.10.06 sent by the workman with certain other
persons to the Conciliation Officer as Ex WW1/1, legal notice dated
23.10.06 sent on behalf of workman as well as certain other persons to the
managements as Mark A, postal receipts of Mark A as Ex WW1/2 and Ex
WW1/3, two acknowledge cards in respect of the legal notice both as Ex
DID 31/07 10/29
WW1/4, complaint dated 03.11.06 sent by the Shahdara General Udyog
Sharmik Union (regd.) on behalf of workman and certain other persons to
the Labour Department as Ex WW1/5, demand notice dated 03.11.06 on
behalf of workman and certain other persons forwarded by Sh. Nain
Singh, Secretary of the Union to the managements as Ex WW1/6,
annexure (क) to Ex WW1/6 as Ex WW1/7, annexure (ख) to Ex WW1/6
as Ex WW1/8, another copy of the same notice as Ex WW1/9, carbon
copy of Ex WW1/7 as Ex WW1/10, carbon copy of Ex WW1/8 as Ex
WW1/11, two postal receipts in respect of Ex WW1/6 as Ex WW1/12 and
Ex WW1/13 respectively, one UPC receipt in respect of Ex WW1/6 as Ex
WW1/14, another notice dated 03.11.06 sent by Sh. Nain Singh,
Secretary of the Union on behalf of workman and some other persons to
the Bonus Officer as Ex WW1/15, report dated 18.12.06 of Labour
Inspector Sh. Haridas as Ex WW1/16, claim filed by the workman and
certain other persons before the Conciliation Officer as Ex WW1/17, PF
receipts as Mark B (two in number) and her ESIC card as Ex. WW1/18
15. In her crossexamination, she denied that she was appointed with
the management w.e.f. October, 1995 and not since, 1989 and that the
management never terminated her services and that she was remaining
DID 31/07 11/29
absent of her own and that she was employed and earning Rs.8,000/ per
month. She admitted that she did not make any complaint to the Labour
Department / police authorities about taking of her signatures and thumb
impressions by the management on blank papers and vouchers.
16. WW2 is Sh. Nain Singh, General Secretary of Shahdara General
Udyog Sharmik (Regd). In his affidavit filed as examinationinchief, he
stated that 23 terminated employees of the management including the
workman joined the Union after 23.10.06 and authorised him for future
proceedings against the managements. All 23 employees including the
workman made a complaint dated 03.011.06 through Union to Assistant
Labour Commissioner and also sent a demand notice on the same day to
the Bonus Officer for payment of bonus. On the complaint dated
23.10.06, the Labour Inspector Sh. Haridas with Labour Inspector Sh.
S.K. Yadav with him ( WW2) went to the Office of the managements
where Sh. Shiv Saran, partner of both the managements told the Labour
Inspector in his presence and in presence of all the 23 employees that he
is not ready to take back all the 23 employees on duty and that he shall
make payment of earned wages of pending months to 23 employees on
07.11.06 in the factory premises. This statement of Sh. Shiv Saran was
DID 31/07 12/29
noted by the Labour Inspector Sh. Haridas in his official register and
signatures of Sh. Shiv Saran and that of WW2 were taken on the
statement. The payment was made on 08.11.06 by Sh. Shiv Saran in the
presence of Labour Inspector Sh. Haridas, Labour Inspector Sh. S.K.
Yadav, WW2 to all the 23 employees, pertaining to wages of October
2006 and overtime. Sh. Shiv Saran had admitted before the Labour
Inspector Sh. Haridas in his (WW2's) presence that out of the 23
employees, 20 were employees of M/s. Saran Exclusif and remaining
three were employees of M/s. Chetan Export and that the managements
had not prepared records of most of the employees. WW2 relied upon the
same documents Ex. WW1/1 to Ex. WW1/17 as relied upon by WW1.
17. The testimony of WW2 goes unrebutted, unchallenged and
uncontroverted as there is no crossexamination of WW2 at all. Hence,
the testimony of WW2 is deemed to be admitted by the managements.
18. As noted above, although the managements filed two affidavits of
Sh. Pawan Kumar, the witness did not appear for his crossexamination.
Hence, the affidavits cannot be read. The result is that no evidence has
been led by both the managements.
DID 31/07 13/29
19. In D.K. Yadav Vs. JMA Industries Limited 1993 (3) SCC 259, the
Hon'ble Supreme Court held as follows:
"It is thus well settled law that right to life enshrined under Art. 21
of the Constitution would include right to livelihood. The order of
termination of the service of an employee/workman visits with civil
consequences of jeopardizing not only his /her livelihood but also
career and livelihood of dependents. Therefore, before taking any
action putting an end to the tenure of an employee/workman fair
play requires that a reasonable opportunity to put forth his case is
given and domestic enquiry conducted complying with the
principles of natural justice."
(underlining by me)
20. In Shiv Kumar Vs. Hansita 2011 LLR 13, Hon'ble Delhi High
Court held as follows:
"It is settled legal position that the abandonment of service cannot
be readily inferred. Abandonment of service is a question of
intention which can be gathered from the totality of the facts and
circumstances of each case. There has to be a clear evidence on
record to show that despite grant of reasonable opportunity to the
employee by the management, he failed to join back his duties
without any sufficient reasons and therefore in the absence of any
such cogent and convincing evidence, voluntarily abandonment on
the part of the employee cannot be readily inferred.........................
None of these letters were sent by the respondent management
DID 31/07 14/29
through registered AD and on the other hand the petitioner sent a demand notice dated 21.7.1992 through registered AD which was replied by the respondent management vide their reply dated 24.8.1992 wherein the respondent management also gave reference of the above said letters sent to the petitioner by UPC. The petitioner in his rejoinder dated 3.9.1992 clarified to the respondent management that such letters were never received by him. The petitioner also sought to castigate the respondent in adopting dubious means in obtaining some certificates of posting from the post office to prove service of the said letters. No doubt that under Section 27 of the General Clauses Act service through UPC does give rise to a presumption but certainly service through UPC is a frail piece of evidence. The respondent management has failed to prove on record any dispatch register or any other documentary evidence to show that the said letters were dispatched by the respondent management in their normal and ordinary course of business. The petitioner who had put in 16 years of long service is not expected to be thrown out of employment just based on three UPC letters purported to have been sent to him requiring him to join back his duties, he would not have sent demand notices just within a period of one anda half month of his termination and immediately thereafter having raised an industrial Dispute.
10. Hence, the totality of the facts do not justify that in the aforesaid back drop of the circumstances the petitioner would have drop of the circumstances the petitioner would have voluntarily abandoned his services. It is not in dispute that the respondent did not issue any memo or set up an enquiry for the unauthorized absenteeism of the petitioner from his duties and it is quite evident DID 31/07 15/29 that with the help of such UPC letters the respondent prepared the ground to circumvent the legitimate rights of the petitioner......."
(underlining by me.)
21. In Hindustan Associates Engineer Pvt. Ltd. Vs. Sh. K.K. Aggarwal & Ors. 2011 LLR 312, Hon'ble Delhi High Court held as follows : "As far as the case of abandonment is concerned, the counsel for the respondent No.1 workman has drawn attention to the cross examination of the witnesses of the petitioner in which it is admitted that no letter or notice asking the respondent No.1 workman to join back was issued. The case of the petitioner is of abandonment with effect from 1st May, 1966. The case of the respondent No.1 workman is of having not been allowed to work since 1st May, 1996. It is admitted that the respondent No.1 workman at least on 10 th December, 1996 called upon the petitioner to allow him to work. Had the respondent No.1 workman abandoned services, the petitioner instead of opposing the same would have allowed him to join considering the short time within which the said demand was made. Moreover, it has been held in Anil Chuttani v. ONGC, 2010 ( 117) DRJ 433 that for abandonment also a proper enquiry has to be made and which admittedly has not been done in the present case."
(underlining by me)
22. It is clear from the authorities that abandonment of service by an employee is not to be readily assumed and that abandonment is a question DID 31/07 16/29 of intention to be found from the totality of the facts and circumstances of the case and that for abandonment, a proper enquiry has to be made by the management giving the employee an opportunity to put forward his case/reason for his absence.
23. As noted above, it is nowhere the case of the management that it conducted any domestic enquiry against the workman for her alleged absence or even that it issued any notice calling upon her to resume her duties. Further, although it is stated in the written statement that management offered employment to the workman in the conciliation proceedings, no evidence has been led by the management at all.
24. As noted above, in her affidavit filed as examinationinchief, the workman relied upon a number of documents from Ex. WW1/1 to Ex. WW1/20. The testimony of the workman in respect of these documents goes unrebutted, unchallenged and uncontroverted as there is no cross examination of the workman in respect of these documents. Hence, all these documents stand proved on record. The documents include Ex. WW1/5, which is a complaint sent by the Shahdara General Udyog Shramik Union (Regd.) on behalf of the workman and certain other DID 31/07 17/29 persons to the Labour Department in respect of illegal termination of the workman on 23.10.2006. The complaint Ex.WW1/5 is dated 03.11.2006 i.e. within 11 days from the date the services of the workman were allegedly terminated. The documents also include Ex. WW1/6, which is a demand notice on behalf of the workman and certain other persons forwarded by Sh. Nain Singh, Secretary of the union to the managements. This demand notice is dated 03.11.2006 i.e. within 11 days of the alleged termination. As noted above, it is not disputed between the parties that conciliation proceedings were initiated by the workman against the managements. The present claim was filed on 17.02.2007 i.e. within less then four months from the date of alleged termination. Hence, prompt action has been taken by the workman which clearly shows that she was very much interested in doing the job. Significantly, in her cross examination, no suggestion was given to the workman that she was offered job before the Conciliation Officer.
25. As noted above, in her claim, the workman has contended that she joined the management w.e.f. February, 1989. On the other hand, the case of the managements is that she joined w.e.f. October, 1995. As noted above, the managements filed two affidavits of Sh. Pawan Kumar DID 31/07 18/29 as examinationinchief. Since the witness was not produced for his cross examination, the affidavits cannot be read in favour of the managements. However, there cannot be any doubt that the affidavits can be read against the managements. In his second affidavit, MW Sh. Pawan Kumar stated that the workman joined the management on 01.06.1994. No document has been filed, much less proved, by the workman showing that she was working with the management prior to 01.06.1994. Although, in the claim, it was specifically stated by the workman that her signatures were obtained by the management on blank documents showing that she joined the management at a later date than the date on which she actually joined, significantly, this fact is not stated in her affidavit. As noted above, in her cross - examination, the workman stated that no complaint was filed by her with the police / labour authorities regarding obtaining of her signatures on blank papers by the managements. Hence, this plea of the workman is rejected.
26. It was contended by Ld. ARW that he filed an application seeking a direction to managements to produce attendance register, wages register, bonus register, leave register, balance sheet, cash book and ledger, all from the year 1995 to 2007. His contention is that adverse inference DID 31/07 19/29 should be drawn against the managements for nonproduction of the aforesaid records. The record reveals that certain records were brought by the managements on 30.11.2009. Thereafter, the application was never pressed by ld. ARW. No direction was ever given by this Court to the managements to produce any of the records sought to be summoned by the claimant. Hence, no adverse inference can be drawn against the managements and thus, the contention of Ld. ARW in this regard is rejected.
27. I have carefully gone through the authorities relied upon by ld. ARW. There cannot be any dispute with regard to the propositions of law laid down in the authorities, but it is a settled law that each case is to be decided according to its own facts. I am of the view that facts in the present case are materially different from those in the authorities. As noted above, in the present case, no directions to produce documents were ever passed by this Court. On the contrary, the management itself produced the summoned record and thereafter, the application was not pressed by ARW. This was not so in any of the authorities relied upon by Ld. ARW. Hence, with great respect, I am of the view that none of the authorities relied upon by Ld. ARW is applicable to the facts of the DID 31/07 20/29 present case.
28. In view of the above discussion, it is held that the workman joined the management w.e.f. 01.06.1994 only.
29. It is difficult to believe that the workman, having worked with management No. 1 for more than 12 years, herself stopped coming to do her duties particularly when, admittedly, prompt action has been taken by her and no enquiry, admittedly, has been conducted by the management into her alleged absence. Despite service of Ex. WW1/6, she was not allowed to join her duties. Hence, I am of the view that the aforesaid authorities are squarely applicable to the facts of the present case.
30. During the arguments, it was contended by Ld. ARM that the factum of termination of her services has not been mentioned by the workman in Ex. WW1/1 as well as in the legal notice Mark A which both are dated 23.10.2006 i.e. the date of alleged termination. The contention of Ld. ARM is that this fact itself shows that services of the workman were never terminated by the management and that she herself stopped coming to the job. In his reply / arguments, Ld. ARW merely stated that DID 31/07 21/29 this facts is irrelevant. While it is true fact that the factum of termination is relevant, I am of the view that the fact that factum of termination has not been mentioned in those two documents loses its bite in view of other evidence placed on record by the workman which clearly shows that she has approached the authorities against her alleged termination promptly. Admittedly, the workman never worked with the management after 23.10.06. Whereas the contention of the workman is that her services were terminated, the contention of the managements is that she herself stopped coming. As noted above, service of legal notice by the workman is not disputed by the managements. Although, the managements have stated in the written statement that the notice was replied, no copy of the reply has been placed on record, much less proved. Further, it is nowhere the case of the management that it asked the workman to join her duties in its reply to the notice or even otherwise, called her to join her duties or conducted any domestic enquiry against her, as required by law. Significantly, in their written arguments, the managements have submitted that accounts of the workman have been fully and finally settled. This contention is against the pleadings of the managements. No document has been placed on record by the managements in this regard, much less proved. Hence, the contention of Ld. ARM is rejected. DID 31/07 22/29
31. I have carefully perused the authorities relied upon by Ld. ARM that there cannot be any dispute about the propositions of law laid down in the authorities, but it is a settled law that each case is to be decided according to its own facts. None of the authorities relied upon by the management pertains to Labour Court. It has been held in MANU/SC/0727/2004 Municipal Corporation, Faridabad Vs. Siri Niwas as follows :
"The provisions of the Indian Evidence Act per se are not applicable to an industrial adjudication. The general principles of it are, however applicable. It is also imperative for the Industrial Tribunal to see that the principles of natural justice are complied with. The burden of proof was on the respondent herein to show that he had worked for 240 days in preceding twelve months prior to his alleged retrenchment. In terms of Section 25F of the Industrial Disputes Act, 1947, an order retrenching a workman would not be effective unless the conditions precedent therefore are satisfied. Section 25F postulates the following conditions to be fulfilled by employer for effecting a valid retrenchment:
(i) one month's notice in writing indicating the reasons for retrenchment or wages in lieu thereof;
(ii)payment of compensation equivalent to fifteen days, average pay for every completed year of continuous service or any part thereof in excess of six months."
(underlining by me) DID 31/07 23/29
32. It is clear from the authority that Evidence Act is not strictly applicable to the proceedings before the Labour Court. Even otherwise, all the authorities pertain to the mode of proof only. Hence, with great respect, I am of the view that none of the authorities relied upon by the management is applicable to the facts of the present case.
33. In view of the above discussion, I have no hesitation in holding that the workman was not voluntarily absenting from the services of the management and that her services have been terminated by the management.
34. It is nowhere the case of the management that it complied with Section 25F of the Act while terminating / retrenching the services of the workman. Hence, there cannot be any doubt that the termination of the services of the workman is in violation of Section 25F of the Act and is, therefore, illegal and unjustified.
35. However, as far as violation of Sections 25G & H alleged by the workman is concerned, neither in the claim nor in the rejoinder, nor even in her affidavit filed as examinationinchief, the workman has given DID 31/07 24/29 particulars of any person junior to her retained by the management at the time of her alleged termination or who was engaged by the management after her termination. Hence, it is held that the workman has failed to prove violation of Sections 25G & H of the Act.
36. The effect of the illegal termination shall be considered while deciding issue No. 3.
37. In view of the above discussion, both the issues are decided in favour of the workman and against the managements. ISSUE NO. 3.
38. It has been held by Hon'ble Supreme Court in Jagbir Singh Vs. Haryana State Agriculture Marketing Board 2009 (3) SCT 790 as follows :
"15. It would be, thus, seen that by catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25F although may be set aside but an award of reinstatement should not, however, be automatically passed...................."
(underlining by me) DID 31/07 25/29
39. It is clear from the authority that reinstatement is not automatic even if the order of termination / retrenchment is held to be bad.
40. MW Pawan Kumar, in his affidavits filed as examinationinchief, has stated that the management has closed down its manufacturing activities. However, in both the affidavits, different dates of closure have been given. Whereas in the first affidavit, the date given is November, 2007, in the second affidavit, the date is 30.05.2008. However, since no evidence has been led by the managements, there cannot be any doubt that this fact has not been proved. It is almost seven years since the date of her termination. Keeping in view the totality of the facts and circumstances of the case, I am of the view that it is not a fit case to grant reinstatement to the workman and, thus, the workman is entitled to compensation only in lieu of reinstatement.
41. As noted above, it is not disputed between the parties that the last drawn salary of the workman was Rs.3,200/ per month.
42. In the claim, it is specifically stated by the workman that she is unemployed since the date of her termination despite her best efforts. In DID 31/07 26/29 the written statement, the managements have submitted that the workman is gainfully employed with some other employer. No particulars of any such employer have been given in the entire written statement by the managements. In her affidavit filed as examinationinchief, the workman again specifically stated that she is unemployed since the date of her termination despite her best efforts. In her cross examination, she stated that she has four children, out of which, one is school going. She denied that she is employed and earning Rs.8,000/ per month. She volunteered that her household expenses are borne by her husband. As noted above, the management filed two affidavits of Sh. Pawan Kumar as examinationinchief. Since this witness did not appear for his cross examination, the affidavits cannot be read in favour of the managements. However, there cannot be any doubt that they can be read in favour of the workman. In neither of affidavits of Sh. Pawan Kumar, it is stated that the workman is gainfully employed anywhere. Keeping in view the totality of the facts and circumstances of the case, I am of the view that it stands established on record that the workman is unemployed since the date of her termination despite her best efforts.
43. Keeping in the view the totality of the facts and circumstances of DID 31/07 27/29 the case, I am of the view that interest of justice is best served if the workman is given compensation of Rs.3,00,000/ (Rupees Three Lac Only) in lieu of reinstatement.
44. Coming to costs, as noted above, the case of the managements in the written statement is that the workman joined management No. 1 w.e.f. October, 1995. However, their own witness MW1 in his second affidavit filed as examinationinchief itself, has given the date of joining of the workman as 01.06.1994. It is clear that the date of joining mentioned by the management in the written statement was false to their knowledge. Hence, I am of the view that it is a fits case where exemplary costs should be imposed on the managements. Hence, a cost of Rs.22,000/ (Rupees Twenty Two Thousand Only) is imposed on the managements.
45. Further, a perusal of the record shows that costs were imposed on the managements several times which have not been paid by them. A cost of Rs.2,000/ (Rupees Two Thousand Only) was imposed on 30.08.2012, a cost of Rs.5,000/ (Rupees Five Thousand Only) was imposed on 30.10.2012. During the arguments, it was contended by Ld. ARM that the leading of evidence by the managements was made subject DID 31/07 28/29 to these costs and, at best, the evidence of the managements can be closed for non payment of these costs and, thus, the managements are not required to pay these costs. I do not find any merits in the contention. The costs were adjournment costs which have to be paid by the managements.
46. The management No. 1 is directed to pay the aforesaid amount of Rs.3,00,000/ (Rupees Three Lacs Only) and both the managements are directed to pay the aforesaid amounts of Rs.22,000/ (Rupees Twenty Two Thousand Only) and Rs.7,000/ (Rupees Seven Thousand Only) total Rs.29,000/ (Rupees Twenty Nine Thousand Only) to the workman within one month from the date of publication of this award failing which they shall be liable to pay interest @ 9% per annum on all the amounts from today till realization. The claim is, thus, allowed.
47. The requisite number of copies of this award be sent to the Government of NCT of Delhi for its publication. File be consigned to Record Room.
Dictated to the Steno and announced in the open Court on 07.10.2013. (RAKESH KUMAR SHARMA) POLCXVII/KKD/DELHI DID 31/07 29/29