Delhi District Court
Pradeep Rathore S/O. Sh. Virender Singh vs Managing Director Sh. Nirmal Jain And on 5 December, 2016
Pradeep Rathore V/s. M/s. India Infoline Limited ID No. 5855/16
BEFORE LABOUR COURT - XI: KARKARDOOMA COURTS: DELHI
PRESIDING OFFICER: Mr. ANAND SWAROOP AGGARWAL
(Delhi Higher Judicial Service)
(Additional District & Sessions Judge, Delhi)
REFERENCE CASE (ID) No. 5855/16
UNIQUE CASE ID No. 02402C0128072014
In the matter of:
Pradeep Rathore s/o. Sh. Virender Singh
R/o. RZ LBlock, House No. 39, Mahavir Enclave,
Palam, New Delhi 45
C/o. Lok Mazdoor Sanghthan (Regd.),
B58/45, Rama Road, New Delhi - 15 ...... Workman
Vs.
Managing Director Sh. Nirmal Jain and
Director Sh. R. Vectorman
M/s. India Infoline Limited
71/3, 1st Floor, Rama Road,
New Delhi - 110015 ...... Management
Date of institution : 28.04.2014
Date of reserving for award : 15.11.2016
Date of award : 05.12.2016
AWARD
1.Vide Order No. F.3(5)/14/Ref./WD/LAB./731 dated 15.04.2014, Deputy Labour Commissioner (West District), Labour Department, Government of N.C.T. of Delhi made following reference under sections 10 (1) (c) and 12 (5) of the Industrial Disputes Act, 1947 read with Government of India, Ministry of Labour Notification No. S11011/2/75/DK (IA) dated the 14th April 1975 and Notification No. F.1/31/616/Estt/2008/7458 dated 3rd March, 2009 for adjudication by this Page 1 of 20 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/05.12.2016 Pradeep Rathore V/s. M/s. India Infoline Limited ID No. 5855/16 Court: "Whether the services of Sh. Pradeep Rathore S/o Sh. Virender Singh have been terminated illegally and/or unjustifiably by the management; and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. CASE OF THE WORKMEN AS PLEADED IN THE STATEMENT OF CLAIM.
(i) The workman Pradeep Rathore had been working with the management of M/s. India Infoline since 22.07.2010 as a 'Sales Manager' and his last drawn salary was Rs. 13790/ p.m.
(ii) Workman was performing his duties to the utmost satisfaction of the management and he had unblemished and uninterrupted record of his services to his credit.
(iii) During his service tenure the workman was denied the benefit of legal facility and he was demanding the same time and again, and, due to legitimate demands, the management got irritated and terminated the services of the workman w.e.f. 03.09.2013.
(iv) The management has not paid the earned wages from 01.08.2013 to 03.09.2013 and incentive to the workman till date.
(v) The workman has not succeeded to get any job after his illegal termination w.e.f. 03.09.2013 by the management despite his best efforts and now the workman and his family members are living at the verge of starvation and facing very (sic.) financial hardship.
(vi) The action of management in terminating his services of the workman is illegal, bad, unjust and malafide for the amongst reason:
a) The workman is a regular and permanent employee of the management and has unblemished and uninterrupted record of his services to his credit.
b) The services of workman was terminated for legitimate demand of legal Page 2 of 20 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/05.12.2016 Pradeep Rathore V/s. M/s. India Infoline Limited ID No. 5855/16 facilities which amounts to unfair labour practice on the part of the management.
c) The workman has worked with the management for more than 240 days in each calender of months.
d) The service of the workman have been terminated by refusal of duties, orally and without assigning any reason.
e) The work against which workman was working is still continuing and is a permanent work.
f) In case of retrenchment no seniority list was displayed and no notice was given, no notice pay was either offered or paid to the workman at the time of termination of his services.
g) The workman did not commit any misconduct if there was any alleged misconduct having been committed by the workman, he has not been served any memo. or charge sheet, and no domestic enquiry was conducted against him and he was not offered any opportunity to being heard.
h) Even otherwise the impugned termination of services is violation of section 25 F, G, H of the Industrial Disputes Act r/w. rule 76, 77, & 78 of Industrial Disputes (Central) Rule 1957.
(vii) Workman is not gainfully unemployed since the date of termination i.e. 03.09.2013.
(viii) The legal demand notice dated 19.10.2013 was served upon the management but no reply has been received and it was presumed that demand has been rejected.
(ix) The conciliation proceedings were initiating by workman through his union but the same resulted in failure due to adamant and non cooperative attitude of the management. Hence this claim.
With these averments the workman prayed for passing an award in favour of the workman holding therein that termination of the services of the workman is illegal and unjustified and he is entitled to reinstatement in services with continuity Page 3 of 20 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/05.12.2016 Pradeep Rathore V/s. M/s. India Infoline Limited ID No. 5855/16 and full back wages alongwith all consequences benefit thereof either monitory or non monitory and costs of the litigation.
3. STAND TAKEN BY MANAGEMENT IN THE WRITTEN STATEMENT OF DEFENCE.
AT THE OUTSET management has pleaded that this forum does not has the jurisdiction to adjudicate this statement of claim as this is the civil dispute and also for the sole reason that there is specific 'Arbitration Clause' in the terms and condition of the employment of Mr. Pradeep Rathore which was duly provided to him alognwith the letter of appointment dated 06.09.2010 and he was also asked to go through the same and it was also made clear that the Annexure 1 and Annexure 2 are the integral parts of the letter of appointment. The management is filing application u/s. 8 of Arbitration and Conciliation Act, 1996 for dismissing the statement of claim, however, to avoid the controversy in future the management is filing the written statement without prejudice to its right to enforce the Clause of Arbitration of the contract which only made the relations in between Pradeep Rathore and management.
PRELIMINARY OBJECTIONS Mr. Pradeep Rathore does not come within the definition of 'workman' as he was admittedly working as Sales Manager and was having salary more than the maximum salary fixed as per law to come under the preview of workman. He was working as Manager and the nature of his duties was supervisory.
This Court does not has the jurisdiction of adjudicate this statement of claim as management is a registered company registered with the ROC Bombay and is having its registered office at Bombay and it has been further mutually agreed between both the parties that the jurisdiction would be of Mumbai Court. Mr. Pradeep Rathore has not come to this Authority with clean hands &, besides misrepresenting the facts, he has also suppressed material facts from this Court. He Page 4 of 20 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/05.12.2016 Pradeep Rathore V/s. M/s. India Infoline Limited ID No. 5855/16 had received all dues on 02.01.2014 before the labour office but he nowhere mentioned this fact in the statement of claim.
ON MERRITS The date when the workman started working with management, post and last drawn salary are matters of record. The workman during his employment performed very badly and was having a very casual approach in discharging his duties. The workman was nonperformer, incompetent, incapable of performing his duties and was orally warned many times to work hard as per requisite requirement of the management.
The workman himself stopped coming to the job without intimation to the management and, as per terms of contract, the continuous three days absence would automatically be deemed to be termination, and the workman should have stopped coming to job only after giving fifteen days mandatory notice but still the management had offered him balance entitlement of salary from 01.08.2013 to 03.09.2013 and even though the management was not supposed to pay the amount in lieu of notice period and was supposed to deduct from the balance entitlement of salary but still, as goodwill gesture, management offered him and paid the amount of notice period which the workman accepted on 02.01.2014.
The workman was not the permanent employee but he was the employee under certain terms and conditions. As per that terms and conditions any party could have terminated the employment by giving fifteen day notice or in lieu of that notice the payment to be made by the terminating party to the other. It was the civil contract and any breach thereof had to be tackled as per the remedial terms and conditions i.e. arbitration proceedings. The services of workman have not been terminated by the management and it was because of willful absence of the workman, the termination has been caused because of terms and conditions of employment.
There is no violation of sections 25F, G, H of the Industrial Disputes Act, Page 5 of 20 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/05.12.2016 Pradeep Rathore V/s. M/s. India Infoline Limited ID No. 5855/16 1947 r/w. Rules 76, 77 and 78 of Industrial Dispute (Central) Rules, 1957 as Mr. Pradeep Rathore does not come within the definition of 'workman' as defined under the Industrial Disputes Act, 1947 and it is not the case of retrenchment. Even otherwise, there are specific terms and conditions of settling the disputes between the parties as per arbitration procedure and, moreover, both the parties are at liberty to terminate the appointment by giving fifteen days notice.
The workman had received a sum of Rs.18,000/ towards the dues upto date August 2012 and further other conciliation proceedings were proceeded ex party because of confusion of dates. On 17.02.2014 the next date was fixed as 14.03.2014 but after the management had come out from the labour office the date was stroked out and changed to 24.02.2014 without any notice to the management. When management, as per date fixed, approached the labour office on 14.03.2014 it was informed that nothing can be done as the matter had already been referred as industrial dispute.
4. REJOINDER Workman filed rejoinder to the WS of management denying the averments in WS and reaffirming the averments made in the statement of claim.
5. APPLICATION U/S. 8 OF THE ARBITRATION & CONCILIATION ACT, 1996 On 05.09.2014 management moved this application. Workman replied the same on 18.11.2014. On 03.01.2015 Court made following order :
"ORDER:
1. Vide Order No. F.3(5)/14/Ref./WD/LAB./731 dated 15.04.2014, Deputy Labour Commissioner (West District), Labour Department, Government of N.C.T. of Delhi made following reference under section 10 (1) (c) and 12 (5) of the Industrial Disputes Act, 1947 read with Government of India, Ministry of Labour Notification No. S11011/2/75/DK (IA) dated the 14th April 1975 and Notification Page 6 of 20 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/05.12.2016 Pradeep Rathore V/s. M/s. India Infoline Limited ID No. 5855/16 No. F.1/31/616/Estt/2008/7458 dated 3rd March, 2009 for adjudication by this Court: "Whether the services of Sh. Pradeep Rathore S/o Sh. Virender Singh have been terminated illegally and/or unjustifiably by the management;
and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. This order shall dispose off an application under section 8 of the Arbitration & Conciliation Act, 1996 moved by management on 05.09.2014.
3. Workman contested this application by filing reply dated 18.11.2014.
4. I have heard Sh. Ajit Rajput, Adv. for management and Mr. Sunil Kumar, adv. for workman and gone through material available on judicial file with very carefully.
5. By the application in hand management has prayed that statement of claim filed by workman may be dismissed and matter be referred to Arbitrator / Arbitral Tribunal constituted as per letter of appointment dated 06.09.2010 in the interest of justice, equity and fair play. Ld. counsel for the applicant / management submitted that application in hand deserves to be allowed in view of clause no. 16 of letter of appointment which reads as under: "16. Arbitration:
Any dispute or differences whatsoever arising between the two parties out of or relating to the construction, meaning and operation or effect of this contract or the breach thereof shall be settled by Arbitration, in accordance with and subject to the provisions of the Arbitration and Conciliation Act of 1996. It is mutually agreed between the parties that for the purpose of Arbitration under this contract the venue of Arbitration shall be Mumbai only."
Section 8 of the Arbitration & Conciliation Act, 1996 is applicable to a 'judicial authority'. The term 'judicial authority' has not been defined in the Arbitration & Conciliation Act, 1996. In my considered opinion Labour Court as created under the provisions of Industrial Disputes Act, 1947 cannot be said to be a 'judicial authority' so as to be bound by the provisions of Section 8 of the Arbitration & Conciliation Act, 1996. The awards passed by a Labour Court are not enforceable unless and until same are published by the appropriate government under section 17 of the Industrial Disputes Act, 1947. Under section 17 A awards become enforceable on the expiry of 30 days from the date of publication of award under section 17 of the Industrial Disputes Act, 1947. Also, the Labour Court is bound to decide the reference made to it by the appropriate government and decision on the reference made to a Labour Court by appropriate government cannot be avoided by the Labour Court. Labour Court is bound to Page 7 of 20 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/05.12.2016 Pradeep Rathore V/s. M/s. India Infoline Limited ID No. 5855/16 decide the reference. To seek adjudication of an industrial dispute from a Labour Court is statutory right (under the Industrial Disputes Act, 1947) of workman which cannot be defeated by virtue of a term contain in the appointment letter / contract between the parties as in the present case except to the extent as is permissible under the provisions of Industrial Disputes Act, 1947 itself. Statutory right of the workman cannot be defeated by virtue of a contractual term. There is no estoppal against a statute. In such circumstances the question of referring the parties to arbitration under Section 8 of the Arbitration & Conciliation Act, 1996 by Labour Court does not arise.
Matter can also be looked from another angle. Section 10A of the Industrial Disputes Act, 1947 provides for voluntary reference of disputes to arbitration. As per this section parties by their mutual consent may refer an existing / apprehended industrial dispute to arbitration at any time before the dispute has been referred under section 10 to a Labour Court. In this case at no stage prior to reference of the dispute under section 10 to this Court / Labour Court by the appropriate government parties by their mutual consent referred the matter to arbitration. In this case requirements as mentioned in section 10A of the Industrial Disputes Act, 1947 are also not fulfilled inasmuch as the copy of appointment letter / arbitration agreement were not forwarded in terms of section 11 A (3) of the Industrial Disputes Act, 1947.
In view of above detailed discussion, application in hand is hereby dismissed."
6. ISSUES On 20.02.2015 Court made the following order:
"20.02.2015 Present: Mr. Sunil Kumar and Ms. Binita Jaiswal, Advocates for workman.
Mr. Rajkumar Rajput, Adv. for management.
Heard on issues. On the basis of material available on judicial file, following issues are framed:
i) Whether Mr. Pradeep Rathore falls within the definition of 'workman' under section 2 (s) of the Industrial Disputes Act, 1947? OPW
ii) As per terms of reference.
iii) Whether Mr. Pradeep Rathore himself stopped coming to the job without intimation to the management? If so, to what effect? OPM
(iv) Whether Mr. Pradeep Rathore has not approach this Court with clean hands inasmuch as he has concealed the factum of amount paid by management and accepted by Page 8 of 20 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/05.12.2016 Pradeep Rathore V/s. M/s. India Infoline Limited ID No. 5855/16 the workman on 02.01.2014? If so, to what effect? OPM
(v) Relief.
Ld. counsel for management submitted that an issue may also be framed regarding territorial jurisdiction of this Court inasmuch as management is having registered office at Mumbai. This is a reference case and the reference has been made by Govt. of NCT of Delhi.
This Court is bound to decide the reference on merits and this Court as a Labour Court originating under the provisions of Industrial Disputes Act, 1947 cannot go into the question of competency of appropriate government to make the reference. No other issue either arises or pressed. List of witnesses be filed by both the parties within 15 days positively. Put up for WE on 06.04.2015."
7. EVIDENCE Workman appeared in witness box as WW1 Mr. Pradeep Rathore. Workman relied upon documents namely Ex. WW1/1 Demand Notice dated 19.10.2013; Ex. WW1/2 Courier Receipt; Ex. WW1/3 Complaint dated 17.10.2013 addressed to Asst. Labour Commissioner; Ex. WW1/4 Statement of claim filed before Conciliation Officer; Ex. WW1/5 Election Icard; Ex. WW1/6 - ICard of workman; Ex. WW1/7 Letter of Offer; Ex. WW1/8 Letter of Appointment and Ex. WW1/9 Bank Statement. In his crossexamination workman was shown Ex. WW1/M1X - Appointment letter dated 06.09.2010 and Ex. WW 1/M2x - Receipt for salary of August and Bonus, 2013 and Ex. WW1/M3X - Cheque for Rs.18,000/. WE was closed by ld. Counsel for workman on 05.10.2015.
Management examined MW1 Mr. Hargovind Singh who tendered his examination in chief vide evidence affidavit Ex. MW1/A and produced documents namely Ex. MW1/1 - Letter of Authority; Ex. MW1/2 - [subsequently marked as Mark MW1/2 and Ex. MW3/2 (2 pages)] - Pay slip for March 2013 and Pay slip for August, 2013; Ex. MW1/3 - [subsequently marked as Mark MW1/3 and Ex. MW3/3 (4 pages)] Employee Personal Detail; Ex. MW1/4 (subsequently marked Page 9 of 20 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/05.12.2016 Pradeep Rathore V/s. M/s. India Infoline Limited ID No. 5855/16 as Mark - MW1/4 as Mark MW3/4) - Pay slip for the month of April 2009; Ex. MW1/5 (also Ex. WW1/M3X) - Cheque for Rs.18,000/ and Ex. MW1/6 (colly.) [subsequently marked as Mark MW1/6 and Ex. MW3/5 (colly.) (24 pages)] - Biometric Attendance Record.
The exhibition of documents Ex. MW1/2 to Ex. MW1/4 and Ex. MW1/6 was objected to being photocopied documents. These documents were exhibited on 11.05.2016 subject to production of their original on the next date of hearing. However on 15.07.2016 MW1 Hargovind Singh did not produce the originals of Ex. MW1/2 to Ex. MW1/4 and Ex. MW1/6. Ld. counsel for management submitted that for the time being these documents exhibited as Ex. MW1/2 to Ex. MW1/4 and Ex. MW1/6 might be taken as Marked Documents instead of exhibited documents with liberty to management to prove these documents through other lawful means. Thus Court observed that these documents be read as Marked documents for the time being.
Management also examined MW2 Mr. Subhneet Haritas who tendered his certificate u/s. 65B of Evidence Act, 1872 as Ex. MW2/1. This witness was partly crossexamined on 11.05.2016 and his remaining crossexamination was deferred with a direction to produce records from the logs regarding the locking the card of workman. However on 15.07.2016 ld. counsel for management submitted that MW2 - Mr. Subhneet Haritas has left the services of the management and as such he may be deleted from the array of management's witnesses. Ld. counsel for workman had no objection to the same subject to legal rights of the workman on the basis of depositions made by MW2 Mr. Subhneet Haritas.
Management then examined MW3 Ms. G. Chitra who tendered her examination vide evidence affidavit Ex. MW3/A and produced documents namely
- Ex. MW3/1 - PhotoIdentity Card; Ex. MW3/2 (colly. 2 pages) - Consolidated Pay slip for the month of April 2012 to July 2013; Ex. MW3/3 (colly. 4 pages) - Employment Personal Details; Mark MW3/4 - HDFC Pay Slip of Mr. Pradeep Page 10 of 20 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/05.12.2016 Pradeep Rathore V/s. M/s. India Infoline Limited ID No. 5855/16 Rathore given by him alongwith personal details and Ex. MW3/5 (colly. 24 pages)
- Attendance as per Attendance Punching Card from August, 2012 to August, 2013. ME was closed on 12.08.2016 by ld. Counsel for management.
8. ARGUMENTS I have heard Mr. Sunil Kumar Adv. for workman and Sh. Raj Kumar Rajput Adv. for management. Material available on judicial file perused very carefully.
9. MY ISSUEWISE FINDINGS ARE AS UNDER: ISSUE No.1 Whether Mr. Pradeep Rathore falls within the definition of 'workman' under section 2 (s) of the Industrial Disputes Act, 1947? OPW Nature of duties are to be taken into consideration to ascertain where an employee is a workman or not. The designation of the employee is no longer the criterion for determination of the status of an employee. In order to decide as to whether an employee, even though designated as an officer, is a workman or not the primary or substantial duties as performed by him are relevant.
Letter of appointment (Ex. WW1/8, also Ex. WW1/M1X) is silent about specific nature of duties to be performed by Mr. Pradeep Rathore; although he was designated as Sales Manager. In his crossexamination also requisite suggestions have not been given to him to show that Mr. Pradeep Rathore was performing duties supervisory in nature, as per preliminary objection of the management in its WS. Further MW1 Mr. Hargovind Singh in his crossexamination deposed as under: "As per my knowledge workman was working as Business Development Manager with the management.
Q. Kindly tell what was the nature of work assigned to Mr. Pradeep Rathore?
Ans.Work of the Pradeep Rathore was to collect the cheques of Page 11 of 20 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/05.12.2016 Pradeep Rathore V/s. M/s. India Infoline Limited ID No. 5855/16 the premium amount from the clients availing the insurance facilities as well as insurance related documents from such clients pursuant to insurance calls. The insurance policy was to be delivered to the client through clients. No other work except this was assigned to Mr. Pradeep Rathore. However, if circumstances so arose Pradeep Rathore used to make call to the clients for seeking clarifications his address etc. Q. Kindly tell as to which officer of the management company used to provide phone numbers of the clients to Mr. Pradeep Rathore?
Ans. The numbers were used to be provided by telecallers who used to make the lead with the clients.
Mr. Pradeep Rathore used not to make calls to customers for new policies.
Q. Kindly tell whether Mr. Pradeep Rathore was also assigned some administrative work like sanctioning of leaves, and as to how many persons were working under Mr. Pradeep Rathore ?
Ans. Mr. Pradeep Rathore was working as BDM. A BDM
was authorized to appoint Sales Manager on his own. If
Mr. Pradeep Rathore had appointed any Sales Manager (s), leaves of such Sales Manager(s) is sanctioned by the BDM. I cannot tell as to how many Sales Manager Mr. Pradeep Rathore had appointed inasmuch as at relevant point of time I was not employed with the management. If Mr. Pradeep Rathore had appointed any Sales Manager, he would have the power to instruct the Sales Manager(s) as to which company insurance company is to be collected and as to the place said policy is delivered. Besides this Mr. Pradeep Rathore was having no power as BDM.
It is incorrect to suggest that Mr. Pradeep Rathore was not working as BDM. I cannot tell as to whether anybody was working as subordinate to Mr. Pradeep Rathore or not inasmuch as at the relevant time I was not in the employment of the management. I had not attended the conciliation proceedings. (Vol. I joined the management on 26.08.2014). I do not know whether management participated in the conciliation proceedings or not............."
At the outset it is noted that MW1 Mr. Hargovined Singh joined the Page 12 of 20 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/05.12.2016 Pradeep Rathore V/s. M/s. India Infoline Limited ID No. 5855/16 management on 26.08.2014 but Mr. Pradeep Rathore was appointed on 22.07.2010 and his services were allegedly terminated on 03.09.2013. Thus, MW1 Mr. Hargovind Singh cannot be said to be having personal knowledge about the facts of this case. SURPRISINGLY he has deposed that Mr. Pradeep Rathore was working as Business Development Manager, which case has not even been pleaded by management in the WS. In the facts and circumstances of this case MW1 Mr. Hargovind Singh can be said to be an incompetent witness so as to be able to depose about the nature of duties performed by Mr. Pradeep Rathore. Appointment letter of workman is silent about specific nature of duties of Mr. Pradeep Rathore, who has been mentioned as Sales Manager in the appointment letter. No suggestion whatsoever has been given to workman in his crossexamination regarding Mr. Pradeep Rathore performing duties supervisory in nature. No document produced by management shows that Mr. Pradeep Rathore was performing duties supervisory in nature. The mere act of making lead with the clients cannot be said to be supervisory in nature. When Mr. Pradeep Rathore was not performing supervisory duties, the amount of salary being drawn by him is totally immaterial for the purposes of determining status of Mr. Pradeep Rathore (i.e. whether or not he is a 'workman' u/s. 2(s) of the Industrial Disputes Act, 1947). To be covered under exemption (iv) to section 2(s), the employee must have been (i) employed in a supervisory capacity and, in addition, (ii) drawing wages exceeding ten thousand rupees per mensem. Both of these conditions are to be satisfied simultaneously. Here first condition is not satisfied. Notably it is not the case of management even that Mr. Pradeep Rathore was exercising functions mainly of a managerial nature. The nature of duties performed by workman during his previous employment with other employer(s) are totally immaterial for determining the issue in hand in this case. In view of above detailed discussion it is held that Mr. Pradeep Rathore falls within the definition of 'workman' u/s. 2(s) of the Industrial Disputes Act, 1947 and management has failed to prove that his nature of duties was supervisory as Page 13 of 20 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/05.12.2016 Pradeep Rathore V/s. M/s. India Infoline Limited ID No. 5855/16 pleaded in preliminary objections in the WS.
ISSUE NO2. : As per terms of reference.
"Whether the services of Sh. Pradeep Rathore S/o Sh. Virender 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?"
ISSUE NO.3 Whether Mr. Pradeep Rathore himself stopped coming to the job without intimation to the management? If so, to what effect? OPM ISSUE NO.4 Whether Mr. Pradeep Rathore has not approach this Court with clean hands inasmuch as he has concealed the factum of amount paid by management and accepted by the workman on 02.01.2014? If so, to what effect? OPM ISSUE NO.5 Relief.
All these issues, being interconnected, are being discussed under a common discussion. There is no dispute as to date of appointment (i.e. 22.07.2010) of workman. As per workman the management illegally terminated his services on 03.09.2013. But, as per management, workman himself stopped coming to the job without intimation and, as per terms of contract, the continuous absence for three days would automatically be deemed to be termination. The services of workman, as pleaded by management, have not been terminated by the management and it was because of willful absence of the workman that the termination has been caused because of terms and condition of employment. AT THE OUTSET, it is observed that termination under the term of employment as pleaded by management is covered u/s. 2(oo) of the Industrial Disputes Act, 1947 unless termination of services of workman is by way of punishment inflicted by way of disciplinary action. Willful unauthorized absence is a misconduct regarding which management may take disciplinary action against the workman but unauthorized absence, as such, without any disciplinary action having been taken against the Page 14 of 20 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/05.12.2016 Pradeep Rathore V/s. M/s. India Infoline Limited ID No. 5855/16 workman, cannot result in automatic termination of services of workman.
HERE relevant clause of appointment letter reads as under : "2.8 Regularity in attendance and punctuality at work are an implied condition of service and any absence without intimation or authorisation for a period extending beyond three days continuously may lead to termination from the employment without any notice or notice pay in lieu of notice under this clause. Any termination effected under this clause may be appealed to the authority signing the letter of transfer or any superior authority, who is empowered to modify, rescind or confirm the said order if the reasons for your absence are satisfactory."
Even this clause does not stipulate that services of workman are to be automatically mandatorily terminated under the circumstances as mentioned therein. It gives a discretion to the management by using the work "may". When such is the case there cannot be automatic termination unless and until management gives reason for exercising discretion against the workman resulting into termination of services of workman. Management has filed on record no document to show that it had terminated the services of workman in exercise of its powers under abovesaid clause. Being guided by the principles of natural justice, it can be said that management was bound to exercise its power under abovesaid clause by, at least, issuing showcause notice to the workman seeking explanation about the alleged unauthorized absenteeism. But management did not follow this procedure.
NOW I WOULD CONSIDER WHETHER WORKMAN REMAINED UNAUTHORISEDLY ABSENT FROM DUTIES AND, IF YES, FOR WHAT PERIOD. As per workman the management illegally terminated his services on 03.09.2013 by way of refusal of duties orally without assigning any reason. Management in the WS is silent about the period during which workman allegedly remained unauthorisedly absent. Workman in his crossexamination has been made to depose as under : Page 15 of 20 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/05.12.2016 Pradeep Rathore V/s. M/s. India Infoline Limited ID No. 5855/16 ".............. It is correct that my attendance was being marked by the punching card. I have gone for my duty upto 02.09.2013. I do not remember when did I last marked my attendance by the punching card. I do not remember that I have lastly punched my card to record my presence on 20.08.2013............................................
I have got the punching card available with me but at present I have not brought with me which I can bring if asked to do so.................................................
It is wrong to suggest that I on my own stopped coming at the work place of the management without informing them any of the reason. It is wrong to suggest that as I have not attended the working place of continuous period of more than 3 days my services are deemed to be terminated. It is correct that I have not written any of the letter to the higher officer of the company against my alleged termination. (vol. I had a word with Mr. Mukesh Chugh, Asst. Vice President)......"
None of MWs has deposed about the period during which workman allegedly remained absent unauthorisedly. Even document Ex. MW3/5 (Colly. 24 pages) does not prove that workman was unauthorisedly absent from 21 August 2013 onwards. MW3 Ms. G. Chitra in her crossexamination deposed as under: " Presently I am working as HR - Manager. It is correct that as per Ex.MW 3/5 (Colly. 24 pages) the attendance from 26.08.2012 to 25.09.2012 the attendance is marked as 'A' means Absent but the management disbursed the salary for the months of August 2012 and September 2012 vide Ex.MW3/2 at point - A and point - B. It is wrong to suggest that Ex.MW 3/5 is false, fabricated and manipulated by the management. It is correct that attendance of the workman used to be recorded digitally by using punch cards. (Vol. In case card is not punched on account of workman being on duty elsewhere, in such a case attendance of the workman can be marked / regularised on the next date when he comes to the office. In such circumstances the fact of workman has been performed duty without punching the card used to be affirmed by the Reporting Officer of the Page 16 of 20 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/05.12.2016 Pradeep Rathore V/s. M/s. India Infoline Limited ID No. 5855/16 workman.) Workman was working as Sales Manager. It is wrong to suggest that I am deposing falsely and giving the evidence on the instance of management."
Management has not examined the Reporting Officer of the workman, as has been referred to by MW3 Ms. G. Chitra. Nor there is any explanation for the nonexamination of reporting officer of workman. The Reporting Officer of the workman was the best witness to prove, as alleged by management, that workman was unauthorisedly absent from duty but management has not examined the said Reporting Officer.
ALSO MW1 Mr. Hargovind Singh in his crossexamination deposed as under : "............I do not know whether management served any notice upon Mr. Pradeep Rathore before terminating his services. I do not know whether management replied the demand notice sent by Mr. Pradeep Rathore. I do not know whether the Mr. Pradeep Rathore worked with management for a period about three years. (vol. Same is matter of record of the management).
Q. It is put to you that there was no complaint
against Mr. Pradeep Rathore ?
Ans. As it has been told to me that there was complaint
of late coming against the management. Also Mr. Pradeep Rathore was not doing his work properly i.e. not reaching the destined place timely as instructed.
No written memo/chargesheet was given to Mr. Pradeep Rathore on account of his late coming/not working properly. (Vol. As told to me verbally by Associate Vice President Mr. Pradeep Rathore was told verbally in this regard). I cannot tell whether any domestic enquiry was conducted against Mr. Pradeep Rathore or not. It is correct that I am appearing as a witness on the instructions of the management. It is wrong to suggest that management illegally terminated the services of Mr. Page 17 of 20 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/05.12.2016 Pradeep Rathore V/s. M/s. India Infoline Limited ID No. 5855/16 Pradeep Rathore. It is wrong to suggest that I am deposing falsely. (Vol. I have deposed as per the records of the management)."
In view of above detailed discussion it can be said that management has failed to prove that workman stopping coming to his duties of his own. By applying the principle of preponderance of probabilities it can be said that management illegally terminated the services of workman in violation of provisions of section 25F of the Industrial Disputes Act, 1947 r/w. Rule 76 of Industrial Disputes (Central) Rules, 1957. However no case for violation of provisions of section 25G r/w. Rule 77 of the Industrial Disputes (Central) Rules 1957 is made out for want of requisite averments/evidence required for proving the violation of this/these provision(s). Case for violation of section 25H Industrial Disputes Act, 1947 r/w. Rule 78 of the Industrial Disputes (Central) Rules, 1957 is beyond the terms of reference nor the said violation is made out as per averments made in the statement of claim. ISSUE NO.3 IS DECIDED ACCORDINGLY.
FURTHER the fact that workman did not disclose in the statement of claim about receipt of Rs.18,000/ vide Ex. WW1/M2X on 02.01.2014 and, in fact, pleaded in statement of claim filed before the court on 09.07.2014 that management has not paid earned wages from 01.08.2013 to 03.09.2013 and incentive are not such an omission/act so as to make the workman suffer any loss in this case on merits. The issue of payment/or otherwise of the wages/incentive is not the material issue before this Court. The material issue before this Court is about the illegal or otherwise termination of services of workman by the management. Therefore this omission/act on the part of workman is inconsequential for the purposes of adjudication of reference in question. ISSUE NO.4 IS DECIDED ACCORDINGLY.
Also it is noted that clause 2.6 of the appointment letter reads as under: "2.6 Upon your confirmation in service with company, the notice period for Page 18 of 20 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/05.12.2016 Pradeep Rathore V/s. M/s. India Infoline Limited ID No. 5855/16 termination of employment from either side would be 15 days." This clause in the appointment letter, so far as termination of services / employment by the management is concerned, is unenforceable being in conflict with section 25F of the Industrial Disputes Act, 1947.
NOW MERELY BECAUSE management terminated the services of workman illegally / unjustifiably in violation of provisions of Section 25 F of the Industrial Disputes Act, 1947 does not mean that workman is automatically entitled to be reinstated in service with management with full back wages. Whether the workman is entitled to be reinstated in service or not depends on the facts and circumstances of this case at the discretion of this Court keeping in view the totality of the facts and circumstances of this case. Workman is having short length of service with the management. Further, keeping in view the totality of facts and circumstances of this case, in my considered opinion, order for reinstatement of workman in service with the management may not result in cordial industrial relations between the workman and the management. Hence, reinstatement is declined.
In the case in hand workman has pleaded that workman has not succeeded to get any job after his illegal termination w.e.f. 03.09.2013 by the management despite his best efforts and now the workman and his family members are living at the verge of starvation and facing very (sic.) financial hardship. Except the bald averments / depositions nothing has been brought on record by the workman to show that he made serious sincere efforts for getting job after termination of his services by the management. Workman has not explained as to how he has been maintaining himself and his family since 03.09.2013 till today. Further workman in his crossexamination has deposed as under: "........My wife and my daughter (about 3 years old) is dependent on me. My monthly household expenses around Rs.7000/ to 8000/. I assist my brother oftenly in his work and in lieu of that he is giving me consideration in term of money. It is correct that I Page 19 of 20 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/05.12.2016 Pradeep Rathore V/s. M/s. India Infoline Limited ID No. 5855/16 have told before the Court on the last to last date of hearing that I was working as a Tiles Designing. It is wrong to suggest that I am serving and earning an amount of Rs.17,000/ to 18,000/ per month.........."
In view of above discussion workman is not entitled to full back wages. But obviously workman must have suffered financial prejudices on account of illegal termination of his services by the management.
In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the tune of Rs.80,000/ (Rupees Eighty Thousand Only) to the workman for illegal / unjustified termination of his services by the management and for consequences thereof / back wages would meet the ends of justice. If this amount of Rs.80,000/ (Rupees Eighty Thousand Only) is not paid to workman within one month of award coming into force management shall be liable to pay interest @ 9% per annum on this amount from the date of the award till its payment. A sum of Rs. 20,000/ (Rupees Twenty Thousand only) is also awarded to workman as costs of litigation payable by the management. ISSUES NOS. 2 AND 5 DECIDED ACCORDINGLY.
10. Reference is answered accordingly.
11. A copy of the award be sent of Office of the concerned Deputy Labour Commissioner for further necessary action.
12. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 05.12.2016.
(ANAND SWAROOP AGGARWAL) POLCXI, Karkardooma Courts, Delhi* Page 20 of 20 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/05.12.2016