Delhi District Court
Jameel Akhtar vs M/S Sahara India Mass Communication on 14 March, 2024
DLCT130114542016
IN THE COURT OF SH. AJAY GOEL:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I,
ROUSE AVENUE DISTRICT COURTS, NEW DELHI.
Ref. No. F-24(22)DLC/NDD/16/1116
Dated : 16.03.2017
POIT No. 53/2017
Workmen
Jameel Akhtar aged 37 year
S/o Late Amanullah, C/o 112, New Delhi House,
27, Barakhamba Road,
New Delhi-110001 (Mob. No. 9873747068)
Vs.
The Management of
M/s Sahara India Mass Communication,
319-320, Navrang House, 21, K.G. Marg,
New Delhi-110001.
Date of institution : 21.03.2017
Date of presentation : 17.04.2023
before this court
Date of reserving award : 11.03.2024
Date of award : 14.03.2024
AWAR D
1. Labour Department, Govt. of the National Capital
Territory of Delhi has referred this dispute arising between
the parties named above for adjudication to this Tribunal with
following terms of the reference:-
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"Whether the services of Jameel Akhtar aged 37
year S/o Late Amanullah, has been terminated
illegally and/or unjustifiably by the
management, and if so, to what relief are they
entitled and what directions are necessary in this
respect"?
2. Statement of claim has been filed by the workman stating
that the workman has worked with the management since
05/12/1998 as DTP Operate and his last wages are
Rs.30,788/- per month. The workman has been terminated
from his services illegally w.e.f. 04/06/2016. That the
claimant/workman had worked with the management
honestly and with entire dedication and hard work. That the
management is a newspaper establishment; the employees of
the establishment are entitled to the benefits of the statutory
Majithia Wage Board notification w.e.f. dated 11/11/2011
issued by the Central Government. The said notification was
challenged by almost all newspaper establishments and their
representative bodies before Supreme Court of India,
however, the court dismissed all the petitions upholding the
recommendations of Majithia Wage and the notification of
the central Government. Thereafter, as a matter of fact,
looking at the delay caused in the process, Supreme Court
issued specific directions in this regard vide orders dated
07/02/2014 in WP No.246/2011 and accordingly
recommendations of the Wage Boards are valid in law, based
on genuine and acceptable considerations and there is no
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valid ground for interference and in view of the same the
wages as revised/determined shall be payable w.e.f.
11.11.2011 when the Government of India notified the
recommendations of the Majithia Wage Boards. All the
arrears up to March, 2014 shall be paid to all eligible persons
in four equal installments within a period of one year from
that day and further to pay the revised wages from April,
2014 onwards. However, the claimant was not paid his dues
as per the Wage Board Notification which ultimately merged
with the directions dated 07.02.2014 passed by the Hon'ble
Supreme Court. The management even did not comply with
the same and remained making excuses one after the other
when the claimant became vocal on the same. Thereafter, the
management asked the claimant to withdraw his authority
given to Mr. Yashwant Singh regarding filing of the contempt
petition before the Supreme Court and when the claimant
refused to withdraw the said CCP, the management stopped
the salary of the claimant since March, 2015 against which a
complaint was lodged against the management before the
Labour authorities then only the management released the
earned wages and the salary of the claimant. It is further the
case of the workman/claimant that lot of dues of the claimant
are still pending under the Majithia Wage Board and the
directions dated 7/02/2014 and the workman is entitled to
claim the same under the law.
3. It is further the case of the claimant/workman that he is
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entitled to the entire dues besides the interest @ 24% from
the management which is still due towards them and the
management instead of paying the dues, the management had
illegally terminated the service of the workman in arbitrary
manner.
4. It is further the case of the workman that he was working in
the editorial department and reporting to the office at Delhi at
the address mentioned above and the said office is handling
all the matters hence the present claim is being filed against
the head office. Besides that the office of the management
where the claimant was lastly asked to go at NOIDA is a
rented place from where the management is now trying to
shift surreptitiously thereby leaving all the claimants high
and dry. This authority has the territorial as well as statutory
jurisdiction to entertain the claim of the workman as the
liability to release the statutory dues of the employees has
arisen at the head office of the management at Delhi from
where all affairs of the management being controlled and
regulated.
5. That the management as a Mark of reprisal of the forthright
stand of the claimant terminated him from the services w.e.f.
04.06.2016 vindictively and illegally. The workman was not
paid his terminal dues and the benefits of the Majithia Wage
Board as directed by Supreme Court. The claimant is jobless
since then and his benefits under the Majithia Wage Board
are also being withheld by the management forcibly.
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6. It is further the case of the workman that he was daily
reporting for his duties but the office of the management at
Noida stated that the management is being shifted from the
said place and the head office of the management is now
handling all the matters hence the workman vide his demand
notice dated 25.06.2016 issued to the head office of the
management at Sahara India Mass Communication, 319-320,
Navrang House, 21, KG Marg, New Delhi has requested the
management to take him. back on his duties, despite the
receipt of the notice the management has refused to take back
the illegal termination of the workman hence the present
dispute has arisen within the jurisdiction of this Hon'ble
Court.
7. The workman through this claim prayed that the management
is liable to pay a sum of Rs. 2,11,357/- towards the weekly
off allowance and a sum of Rs.77784/- towards arrears of
leave encashment @ 28 days annul in place of 21 days,
totalling Rs.2,89,141/- (Rupees Two Lac Eighty Nine
Thousand One Hundred and Forty One only) from
09.10.1994 till 2012. That the termination of the workman
from his service vide notice dated 04/06/2016 is absolutely
illegal, arbitrary and completely unjustified. He further
prayed that his services be reinstated and all the financial
benefits with back wage be also awarded in his favour in the
interest of justice.
8. Written statement filed by the management, wherein
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objections have been taken that the concerned workman was
never employed by the Management M/s Sahara India Mass
Communication, 319-320, Navrang House, 21, KG Marg,
New Delhi in the NCT of Delhi as such question of
termination of services by the answering management does
not arise and same is bad due to misjoinder of necessary
party. It is further contended that workman was appointed by
the management of Sahara India Complex, Sector-11, Noida,
U.P., till end of service he worked at Noida and his services
were also terminated from Noida, U.P. It is further contended
that the Order of Reference made by the Dy. Labour
Commissioner of New Delhi District is without any
jurisdiction and Ld. Industrial Tribunal has also no
jurisdiction to adjudicate the above Order of Reference
because the workman never worked in the State of NCT of
Delhi. He was appointed in the State of U.P. and till
termination he worked at Noida in U.P. and termination order
was also passed from Noida, Gautam Budh Nagar, U.P.
9. Rejoinder has been filed by the workmen, wherein all
objections raised in the preliminary objections have been
denied and the contentions made in the statement of claim are
reiterated and affirmed.
10. On the basis of pleadings of the parties, following issues
were framed by Ld. Predecessor vide order dated
18.09.2018:-
"(i) Whether there exists relationship of employer
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and employee between the workman
and/management? OPW
(ii) Whether Govt. of NCT of Delhi is not the
appropriate government to refer the instant dispute
for adjudication and disposal in accordance with
law?OPM
(iii) Whether this Court does not have the
territorial jurisdiction to try and adjudicate upon
the instant matter? OPM
(iv) As per terms of reference? OPW
(v) Relief.
11. To prove his case, the workman examined himself as WW1,
who tendered his evidence by way of affidavit Ex.WW1/A in
which he has affirmed the contents of the statement of claim.
He has also relied upon documents Ex.WW1/1 to Ex.
WW1/17. He was duly cross-examined by ld. AR for the
management. Thereafter workman evidence was closed.
12. To prove its case, management examined Sh. G.N. Singh, Dy.
Chief Manager of the management as MW1. He tendered his
evidence by way of affidavit Ex.MW1/A in which he has
affirmed the contents of the written statement and relied upon
documents Ex. MW1/1 to Ex. MW1/4. However, later on
management examined another witness namely Sh. M.N.
Sharma, Assistant Senior Manager as MW2. He tendered
his evidence by way of affidavit Ex.MW2/A in which he has
affirmed the contents of the written statement and relied upon
documents Ex. MW2/1 to Ex. MW2/20. Later on
management also examined one Sh. Mrityunjay Kumar
Dubey as MW-3, Jr. Executive as MW3. He tendered his
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evidence by way of affidavit Ex.MW3/A in which he has
affirmed the contents of the written statement and relied upon
documents Ex. MW3/1 to Ex. MW3/4. MW3 was duly cross-
examined by the ld. AR for the workman. Thereafter, ME was
closed and matter was posted for final arguments.
13. Final arguments have been heard at length as advanced by
both parties.
14. I have gone through the entire records of the case including
pleadings of the parties, evidence led and documents proved
during evidence as well as the written arguments filed on
behalf of the workman.
15. My issue wise findings are:-
16. In this case management has not raised any issue of espousal
as it is the matter pertaining to termination of the workman
from his services and in the cases pertaining to termination of
the workman, there is no requirement to look into the issue of
espousal.
17. Before deciding the issue no. 1 which is with regard to
existence of relationship of employer and employee between
the workman and the management, this court shall deal with
the Issue no. 2 & 3 together as same are interconnected with
one another.
Issue no.2 & 3:
(ii) Whether Govt. of NCT of Delhi is not the
appropriate government to refer the instant dispute for
adjudication and disposal in accordance with law?
OPM
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(iii) Whether this Court does not have the territorial
jurisdiction to try and adjudicate upon the instant
matter? OPM
18. The workman has pleaded that the jurisdiction lies before this
tribunal as the workman was working in the Editorial
Department and reporting to the office in Delhi which is the
head office of the management and is handling all the
matters.
19. On the other hand, the management has disputed the same
and contended that the workman was never in their
employment, but was appointed by the management of
Sahara India Complex situated at Sector - 11, Noida UP and
worked with the said management during his entire service.
20. It is argued by the management that this tribunal has to go
through the pleadings as well as material placed on the
record. It is further submitted that Ex. WW1/1 and Mark A
are the appointment letter and Identity card of the workman
which were issued by the Sahara India Mass Communication
Noida. Apart from this the salary breakup Ex. WW1/4 and
Ex. WW1/5 have also been issued by the Sahara India Mass
Communication Noida. Even the termination letter dated
04.06.2016 Ex. WW1/6 has also been issued by the Sahara
India Mass Communication Noida. His salary payments as
well as annual increments (Ex. WW1/12 to Ex. WW1/16
were also done by the Sahara India Mass Communication
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Noida. Likewise his promotions/ re-designation is also done
by the Sahara India Mass Communication Noida.
21. It has been argued by the management that even in his cross-
examination the workman has also confirmed that his
interview, appointment letter, termination letter and his
remaining dues were issued by the Sahara India Mass
Communication Noida. He has stated that he was reporting in
Delhi in its reporting office at Barakhamba Road, however,
he has no document.
22. Ld. AR for the management has disputed the territorial
jurisdiction in the present matter and had contended that the
concerned workman was never employed by the
Management M/s Sahara India Mass Communication, 319-
320, Navrang House, 21, KG Marg, New Delhi in the NCT
of Delhi as such question of termination of services by the
answering management does not arise. It is further contended
that workman was appointed by the management of Sahara
India Complex, Sector-11, Noida, U.P., till end of service he
worked at Noida and his services were also terminated from
Noida, U.P. To substantiate his claim, Ld. AR for the
management has relied upon case law titled as V.G.
Jagdishan v. M/s Indofos Industries Ltd., Special Leave
Petition (c) 12511 of 2016, wherein the Hon'ble Supreme
Court has observed that:
"3.1 The Labour Court vide award dated
18.04.2006 held the preliminary issue in favour of
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the management and held that the Labour Court at
Delhi has no territorial jurisdiction to decide the
case/complaint/reference. The Labour Court held
that merely because the Corporate Office of the
management was at Delhi the same will not vest the
Labour Court, Delhi with territorial jurisdiction.
The Labour Court held that as the cause of action
has arisen at Ghaziabad, the Court at Ghaziabad
alone had the jurisdiction to try the case.
3.2 Feeling aggrieved and dissatisfied with the
award/order passed by the Labour Court holding
that the Labour Court, Delhi has no territorial
jurisdiction to try the case, the workman preferred
the writ petition before the learned Single Judge of
the High Court. The learned Single Judge dismissed
the said writ petition vide order dated 09.04.2015.
The Letters Patent Appeal (LPA) against the order
passed by the learned Single Judge has been
dismissed by the Division Bench of the High Court
by the impugned judgment and order. Hence, the
workman has preferred the present appeal."
23. On the other hand, Ld. AR for the workman has pleaded that
the jurisdiction lies before this tribunal as the workman was
reporting and lastly worked with the office in Delhi which is
the head office of the management and is handling all the
matters. Ld. AR for the workman has relied upon case titled
as Business Bhaskar Newspaper v. Government of NCT of
Delhi & Ors., W.P. (C) 8550/2018, wherein it has been held
that:
"32. By applying the cause of action test, in the
opinion of this Court, it cannot be held that the
reference by GNCTD is fallacious or the Labour
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Courts in Delhi do not have jurisdiction to
adjudicate the dispute.
33. Moreover, the decision in Braham Prakash v.
GNCTD 2008 (2) SLR 624 which is sought to be
relied upon by the Management would not be
directly applicable in the present case as the said
case relates to a case of termination. Interestingly, in
Brahm Prakash (supra), both the decision of Bikash
Bhusan Ghosh (supra) and Paritosh Kumar Pal
(supra) are dealt with in detail. Brief facts of the
case in Brahma Prakash are that the Workman was
transferred by the Management to Rajasthan on 1st
July, 1999. A criminal complaint was filed against
the Workman for stealing iron scrap and he had to
go to jail. Upon being released on bail in 2001,
when he reached the said office to resume duty, the
Management refused to allow him to join and
terminated his services on 17th July 2001. It was in
this factual background that the Court held that the
situs of the employment of the Workman at the time
of termination was at Rajasthan and the Courts at
Delhi cannot entertain reference on the ground that
the head office of the Respondent Management was
in Delhi or that the PF et cetera was being deposited
in Delhi. The Court in categorical terms held that
since the cause of action which constituted an
infringement of the rights of the Workman arose at
Rajasthan where he was last employed. It was in
these facts and circumstances, the Court held that
the situs of employment was where the Workman
was last employed. In any event, the Court in the
said decision also applied the cause of action test to
hold that violation of the rights of the Workman
took place in Rajasthan and thus came to the
conclusion that the Labour Court in Rajasthan
would have territorial jurisdiction to adjudicate the
matter. The relevant portion of the judgment is set
out below:
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"14. Taking note of the facts and circumstances of
the present case, undoubtedly, the situs of the
employment of the petitioner workman at the time
of termination of his services was at Neemrana,
Rajasthan. Thus, the subject matter of the dispute
substantially arose in the State of Rajasthan.
Consequently, it has to be held that as the immediate
occasion which resulted in the alleged infraction of
the rights of the petitioner workman occurred in the
State of Rajasthan, the courts in Delhi cannot be
vested with territorial jurisdiction on the allegation
that the head office of the respondent management
is in Delhi or that the PF etc. was being deposited in
Delhi or even that the Directors of the respondent
management are residing in Delhi. In other words,
by sifting out the extraneous factors on which the
petitioner workman sought to place emphasis, there
is only one conclusion that can be arrived at, which
is that in the facts and circumstances of the present
case, the cause of action which constituted an
infringement of the rights of the petitioner workman
arose at Rajasthan where he was lastly employed."
34. The situs test sought to be relied upon by the
Management actually, in the opinion of this Court,
points towards Delhi as the situs of the employment
of the Workmen in the present dispute because a
substantial portion of the dispute relates to the
service period of the Workmen in Delhi.
Thus, the reliance of Management on the dictum of
Brahma Prakash (supra) to argue that the
Government of NCT of Delhi did not have power to
refer the matter for adjudication is misplaced.
Considering that out of a period of 31 months for 23
months journalists concerned were posted in Delhi
even by applying the situs test the Labour Courts in
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Delhi would have jurisdiction and the GNCTD
would have power to refer the dispute for
adjudication.
35. Rule 36 of the Working Journalists Rules is very
clear to the effect that complaint under Section 17 of
the Working Journalists Act would be liable to be
filed in the Central office or the Branch office of the
newspaper establishment in which the Workmen is
situated. This Rule does not oust the jurisdiction of
the State Government emanating from the well-
established principle of labour law which
determines the State Government for the purpose of
making a reference. Moreover, the situs test and the
test of cause of action cannot be held to be
contradictory in nature. In fact, they complement
each other and should be applied conjunctively. The
Supreme Court while interpreting Rule 36 in
Samarjit Ghosh v. Bennett Coleman And Co. & Anr.
1987 (3) SCC 507 has observed that the said Rule
36 should be interpreted in favour of the Workmen.
Rule 36 of the Working Journalists Rules would,
therefore, have to be read as creating additional
forum of either the Central office including the
office of the Management where the Workman is
employed for the relevant period qua which the
claim is made under Section 17 of the Working
Journalists Act. Such a Branch Office of the
establishment cannot be excluded from the
applicability of Rule 36 simply because the
Workman may have been transferred to another
Branch Office in another State.
36. The Newspaper/Management in the present case
has offices across the country and one of their main
offices is in Delhi as is evident from the affidavit
filed by Mr. Sachin Gupta, the legal head of the
Management who is stated to be working from the
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office of Management at 207, Aakashdeep Building,
Barakhamba Road, New Delhi- 110001. The cause
of action and the direct nexus test, under such
circumstances, also apply to the present case in
terms of the judgment of Supreme Court in Bhushan
Ghosh v. Novartis India Ltd. [2007] 5 SCC 591
wherein the Supreme Court has clearly held that the
place where the part of cause of action arises would
also be the State Government which would have the
jurisdiction under the Industrial Disputes Act, 1947
and therefore under the Working Journalists Act.
37. As far as the Workmen/Respondent Nos.
7,8,9,11 and 13 are concerned, the plea of the
Management is that the Labour Court having
jurisdiction would be the Court located in the South
Delhi District and not the Labour Court in the
Central Delhi District. Insofar as the issue relating
to the two Labour Courts within Delhi is concerned,
this Court has repeatedly emphasised that the
delineation between the civil Courts in various
Districts within Delhi cannot be treated in a water
tight manner. In Rakesh Sharma v. Bhuvneshwar
Dayal, Tr.P.(C) 33/2020 decided on 9th April 2021
& Advance Magazine Publishers Inc. v. Bombay
Rayon Fashion Ltd., Tr.P.(C) 39/2020 decided on
29th September 2020 this Court has held that the
Court in a different district would not be completely
denuded of jurisdiction to adjudicate matters, owing
to the unique and staggered manner in which the
courts in different districts were created.
Furthermore, sometimes there is confusion within
Delhi as to in which District Court or the Labour
Court a particular dispute would be liable to be
entertained. In view of this, insofar as
Workmen/Respondent Nos. 7,8,9,11 and 13 are
concerned, following the orders passed in Rakesh
Sharma (supra) & Advance Magazine (supra), the
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plea relating to jurisdiction is rejected.
38. By applying both the situs test as also the test of
cause of action, this Court further holds that the
Labour Courts in Delhi would have the jurisdiction
to entertain the present claims qua Respondent Nos.
4-15. Accordingly, the issue is decided in favour of
the Workmen."
24. This Tribunal has gone through the case law tittled as V.G.
Jagdishan (supra) relied upon by the management as well as
the case law titled as Business Bhaskar Newspaper (supra)
by the Ld. AR for the workman. The case law tittled as V.G.
Jagdishan (supra) relied upon by the management is of no
help to the case of the management as in this case the
workman was employed in Ghaziabad and was working in
Ghazaibad and his services were retrenched in Ghaziabad.
Thus, the cause of action arose in Ghaziabad only. Whereas
in the case of law titled as Business Bhaskar Newspaper
(supra) the Hon'ble High Court of Delhi applying the cause
of action and situs of the employment test held that where the
workman was lastly posted at time of his termination, would
be the jurisdiction under the Industrial Disputes Act, 1947.
The judgment of Hon'ble Supreme Court in these
circumstances is not applicable in the facts as stated above
because if the whole cause of action as was in that case had
arisen within the jurisdiction of Noida, then the jurisdiction
of this court would be ousted. The judgment of Hon'ble High
Court of Delhi in Business Bhaskar (supra) is clear as it is
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dealing the facts and the law on the point of jurisdiction,
elaborately. The facts of the present case and the case of
Business Bhaskar (supra) are almost similar and court has to
see whether whole cause of action arisen in Noida or part
cause of action has arisen in Delhi. Keeping in view the
existence of availability of office of management in Delhi as
well as the working conditions of the workman, it is crystal
clear that cause of action has partly arisen in Delhi also. The
argument of the management that the wings are different and
office of Sahara Parivar cannot be taken as office of the
workman does not hold water. In the judgment of Business
Bhaskar, the Hon'ble High Court of Delhi has dealt with
number of cases and has explained as to how the question of
jurisdiction is to be decided. Three judgments of Hon'ble
Supreme Court in Vikas Bhushan Ghos, Braham Prakash and
Paritosh Kumar Paul were discussed with respect to issues in
question and came to the conclusion that if the portion of the
dispute relates to the service period of the workman
pertaining to Delhi, then that court will be having
jurisdiction. The Hon'ble High Court of Delhi has also relied
upon two case laws titled as Rakesh Sharma v. Bhubneshwar
Dayal and Advance Magazine Publisher v. Bombay Rayon
Fashion Ltd. observed that court in a different district would
not be completely denuded of jurisdiction to adjudicate
matters if part cause of action is shown to be arisen in Delhi.
25. It is also a matter of fact and admitted position of stand taken
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by the management itself that the management is a large
group of companies having its different offices at different
regions or localities. Even otherwise today this court has also
decided two other cases of the same management, wherein
there appears to be some nexus between the different
companies of this group whereby workmen are used for the
work in different capacities for their professional use,
without providing them relevant documents of service.
Further is it is not the case of the management that the
workman was allotted some designated chamber, room, seat
or table or any particular machine or device like computer,
DTP Operating machine etc. which was available only in the
office of Noida and not at Delhi. It is also not the case of the
management that the DTP work was only conducted at their
Noida office and not anywhere else. In this regard neither the
management has produced any evidence nor any document
which could suggest that DTP work was carried out at their
Noida office only. It is the case of the workman that he was
orally instructed to work in the Delhi office and after putting
his attendance, he used to attend the Delhi office of the
management on the oral instructions, however, he has no
documentary proof to prove the same. Even in the other two
cases as mentioned above of the same management having
different workmen, there also the management had pleaded
the same issues, however, in those cases somehow the
workmen could have managed to have a few documents
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purportedly issued on behalf of Delhi office of the
management. It is matter of understanding that issuance of
documents to the workman are in the domain of the
management and not with the workman and thus, the
managements take advantage of these sort of technicalities
and exploit the services of the gullible workmen to their
benefit or wish. The nature of work assigned to workman
was not as such which was to be done at Noida office only. It
is not disputed that the larger entity Sahara Parivar was
having office in Delhi and the management is part of the
same. The workman has also stated that he was working with
Sh. Syed Faisal Ali, but it was not fixed where he was sitting.
It is further stated by him that he was sitting both in Delhi
and Noida.
26. Ld. Counsel for the workman has also relied upon the another
case law titled as Raj Kumar Jaiswal v. Rangi International
Pvt. Ltd, CM (M) 1337/2007 decided on 27.10.2009 Hon'ble
High Court of Delhi has also dealt with the jurisdiction issue
which reads as under:
"11. Besides the aforesaid, I am otherwise also of the
view that the industrial dispute arises at the place
where the employer is exercising effective control.
The state government having jurisdiction over the
place from which the employer exercises effective
control would have jurisdiction to make the
reference under Section 2 of the Industrial Disputes
Act. In the present case, the registered office of the
respondent company is at Delhi and prima facie the
effective control would be at Delhi. Nothing has
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been shown otherwise that there was a separate
establishment at Gurgaon; only if a separate
establishment had been proved could the dispute be
said to have arisen at Gurgaon. Reliance in this
regard can be placed on Workmen of Shri
Rangavilas Motors (P) Ltd. Vs. Shri Rangavilas
Motors (P) Ltd. MANU/SC/0237/1967. The
Supreme Court again in Bikas Bhushan Ghosh Vs.
Novartis India Ltd. MANU/SC/7351/2007 has also
laid down the test of part of the cause of action and
held that even if a part of cause of action in the
industrial dispute arises within the state, than that
state will have jurisdiction to make a reference
despite the fact that other states also have
jurisdiction to make a reference. The petitioner in the
present case has spent major time of his employment
with the respondent at Delhi and for this reason also
I am of the view that the reference was correctly
made to the Labour Court at Delhi.
12. Above all, the Industrial Dispute Act is a social
welfare legislation. Today the boundaries between
Delhi and Gurgaon have disappeared. No prejudice
has been shown to be caused to the respondent
company by continuation of the proceedings in the
Labour Court at Delhi. On the contrary, if the
proceedings which have been underway for long and
in which the respondent has participated without
objection, are terminated and the petitioner directed
to approach the authorities at Gurgaon, his
sufferance would be insurmountable."
27. In view of my aforementioned discussion, findings and
mandate of law applied in Raj Kumar Jaiswal (supra) and
Business Bhaskar (supra), this tribunal holds that the Govt.
of NCT of Delhi is the appropriate government to refer the
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instant dispute for adjudication and disposal in accordance
with law and further that this Court has the territorial
jurisdiction to try and adjudicate upon the instant matter.
Hence, these issues are decided in favour of the workman
and against the management.
Issue no. 1
Whether there exists relationship of employer and
employee between the workman and/
management? OPW
28. So far as the issue with regard to the relationship of employer
and employee between the workman and the management is
concerned, it is not the case of the management that the
workman Jameel at no point of time has ever worked w.e.f.
05/12/1998 as DTP Operator or that his last wages were
Rs.30,788/- per month. Rather, the management in their
written statement has contended that the workman was
appointed by the management of Sahara India Complex,
Sector-11, Noida, U.P., till end of service the workman
worked at Noida and his services were also terminated from
Noida, U.P. Management in their WS has further contended
that the workman was appointed in the state of UP and till
termination he worked at Noida in UP.
29.Even MW-3 in his affidavit Ex. MW3/A has affirmed that Mr.
Jameel Akhtar was working in our establishment namely M/s
Sahara India Mass Communication situated at C-2, 3 and 4,
Sector-11, Noida. Mr. Jameel Akhtar filled a Personal Bio-
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data Ex-MW3/1 and after interview he was appointed on
probation w.e.f. 05.12.98 and an appointment letter had also
been issued to him on 18.12.98 Ex-MW3/2(Colly.). At the
time of joining on 05.12.1998 Mr. Jameel Akhtar submitted
his joining report Ex- MW3/3. That after completion of
probation period management of M/s Sahara India Mass
Communication issued confirmation letter dated 16.12.1999
Ex. MW3/4 to the workman. That photocopy of promotion
letter dated 10.01.2000 issued to the workman working at
Noida by their Command Office, Lucknow through
management of M/s Sahara India Mass Communication Ex.
MW3/5. Similarly MW3 has produced number of documents
ranging from Ex. MW3/6 to Ex. MW3/20 with regard to
promotion letter, incrment letters, annual increment, special
allowances, industry allowance, warning letter, salary
certificate, termination letter and attendance and payments
made to the workman. All these documents in one way or
other duly proves the association of management with the
workman concerned. It is also a matter of fact and admitted
position that management is a large group of companies
having its different offices at different regions or localities.
Even management witnesses have also admitted the
appointment, working and other service particulars fo the
workman with the management. Hence, by no stretch of
imagination it can be said that there is no employer employee
relationship between the management and the workman
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concerned. In view of admitted position of the management
and the documents placed on record by the management
itself, it is sufficiently proved that there exists relationship
between the workman and the management concerned.
Hence, this issue is decided in favour of the workman and
against the management.
Issue no. 4
As per terms of reference. OPW
Whether the services of Jameel Akhtar aged 37
year S/o Late Amanullah, has been terminated
illegally and/or unjustifiably by the management,
and if so, to what relief are they entitled and what
directions are necessary in this respect"?
30. It is contended by the ld. A.R. for the workman that the
workman joined into the employment of management on
05.12.1998 as DTP Operator and his last wages were Rs.
30,788/- per month. Thereafter, the management issued him
different letters for allowances and increments and promotion
to the workman. It is contended by the workman that
management started not paying his salary w.e.f. March 2015
and when workman demanded for clearing his dues and 10
months salary, the management issued the workman a
warning letter dated 26.06.2009 and lateron vide letter dated
04.06.2016 Ex. MW3/17 terminated the services of the
workman without having any cause which is illegal and in
gross violation of provisions of law.
31. Ld. AR for the Management has contended that services of
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the workmen were rightly suspended by the management as
the workman was issued warning letter Ex. MW3/12 for
reporting late on duty or leave early from office and the
workman was also found absent from his proper place of
duty during normal working hours without permission of the
competent authority and without sufficient cause, thereby
showing casual and negligent attitude and lack of
commitment. which constituted gross misconduct as per
Certified Standing Orders of Sahara India TV Network
specifying and thereafter services of the workman was
terminated and the termination of the workman was done
under disciplinary action of management.
32. On the other hand, ld. A.R. for the workman argued that the
management did not conduct any fair enquiry and no
opportunity of being heard was given to the workman and
has terminated the services of the workman illegally and
unjustifiably in gross violation of principles of natural justice
as neither any inquiry was held nor he was issued any
chargesheet.
33. In the cross-examination of MW-1, MW-1 has categorically
admitted that the services of the workman were terminated.
He further admitted that the workman was working sincerely
and honestly and his work conduct from the date of his
joining till his termination was proper or that workman was
not paid regular monthly salary from March 2015 till his
termination. management was paying late salary to its
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employees after September 2014.
34. In light of the above discussion and the evidence come on
record, it appears that the management has failed to establish
that they have complied with the principles of natural justice
and they have conducted the full fledged inquiry proceedings
prior to the termination of the workman concerned. In view
of the same, this tribunal holds that the management did not
conduct any inquiry while terminating the services of the
workman concerned. Hence, his services were terminated in
complete violation of the principles of natural justice.
35. When the inquiry proceedings are either held to be invalid or
if the tribunal comes to the conclusion that no inquiry
whatsoever has taken place, in such case, the management is
supposed to plead to prove charges of misconduct before this
tribunal or to lead evidence to that effect.
36. The Constitution Bench of the Hon'ble Supreme Court in
Karnataka State Road Transport Corpn. vs.
Respondent:Smt. Lakshmidevamma & Anr., AIR 2001 SC
2090, wherein it has been held that:
"3. In Shambu Nath Goyal vs . Bank of Baroda &
Others MANU/SC/0256/1983 : (1983) IILLJ415SC
this Court held: "The rights which the employer
has in law to adduce additional evidence in a
proceeding before the Labour Court or Industrial
Tribunal either under section 10 or section 33 of
the Industrial Disputes Act questioning the legality
of the order terminating the service must be
availed of by the employer by making a proper
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request of the time when it files its statement of
claim or written statement or makes an application
seeking either permission to take certain action or
seeking approval of the action taken by it"
(emphasis supplied)
15. The question again arose in the case of
Shambu Nath Goyal's case (supra) as to the
propriety of waiting till the preliminary issue was
decided to give an opportunity to the management
to adduce evidence, because after the decision in
the preliminary issue on the validity of the
domestic enquiry, either way, there was nothing
much left to be decided thereafter. Therefore, in
Shambu Nath Goyal's case this Court once again
considered the said question in a different
prospective. In this judgment, the Court after
discussing the earlier cases including that of
Shankar Chakravarti vs . Britannia Biscuit Co. Ltd.
& Anr. MANU/SC/0374/1979 : (1979)IILLJ194SC,
which was a judgment of this Court subsequent to
that of Cooper Engineering (supra), the following
principles were laid down:
"We think that the application of the management to
seek the permission of the Labour Court or
Industrial Tribunal for availing the right to adduce
further evidence to substantiate the charge or
charges framed against the workman referred to in
the above passage in the application which may be
filed by the management during the pendency of its
application made before the Labour Court or
Industrial Tribunal seeking its permission under
section 33 of the Industrial Disputes act,1947 to
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take a certain action or grant approval of the action
taken by it. The management is made aware of the
workman's contention regarding the defeat in the
domestic enquiry by the written statement of
defence filed by him in the application filed by the
management under section 33 of the Act. Then, if
the management chooses to exercise its right it must
make up its mind at the earliest stage and file the
application for that purpose without any
unreasonable delay. But when the question arises
in a reference under s. 10 of the Act after the
workman had been punished pursuant to a finding
of guilt recorded against him in the domestic
enquiry there is no question of the management
filing any application for permission to lead
further evidence in support of the charge or
charges framed against the workman, for the
defeat in the domestic enquiry is pointed out by the
workman in his written claim statement filed in
the Labour Court or Industrial Tribunal after the
reference had been received and the management
has the opportunity to look into that statement
before it files its written statement of defence in
the enquiry before the Labour Court or Industrial
Tribunal and could make the request for the
opportunity in the written statement itself. If it
does not choose to do so at that stage it cannot be
allowed to do it at any later stage of the
proceedings by filing any application for the
purpose which may result in delay which may lead
to wrecking the morale of the workman and
compel him to surrender which he may not
otherwise do."
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While considering the decision in Shambu Nath
Goyal's case, we should bear in mind that the
judgment of Vardarajan,J. therein does not refer to
the case of Cooper Engineering (supra). However,
the concurring judgment of D.A.Desai, J.
specifically considers this case. By the judgement in Goyal's case the management was given the right to adduce evidence to justify it domestic enquiry only if it had reserved it right to do so in the application made by it under section 33 of the Industrial Disputes Act, 1947 or in the objection that the management had to file to the reference made under section 10 of the Act, meaning thereby the management had to file to exercise its right of leading fresh evidence at the first available opportunity and not at any time thereafter during the proceedings before the Tribunal/Labour Court. ................
37. It is evident from the above that on pronouncement of the decision of the preliminary issue as to whether the domestic enquiry has violated the principles of natural justice, the management was to decide whether it will adduce any evidence before the labour Court. That was held to be the appropriate stage. All these decisions again came to e examined in Shankar Chakravarti v. MANU/SC/0374/1979Britannia Biscuit co. Ltd. & Anr. : (1979) IILLJ194SC and the decision in Cooper Engineering Ltd.'s case indicating the stage of opportunity was cited with approval and it was further opined that such an opportunity had to be asked for. The Bench held that if request is made in the statement of claim or written statement, POIT No. 53/17 Page No. 28 of 36 DLCT130114542016 depending upon whether the proceedings were under Section 23 or Section 10 of the Industrial Disputes Act, the Labour Court or the Industrial Tribunal must give such an opportunity. If the request is made before the proceedings are concluded the labour Court/Industrial Tribunal should ordinarily grant an opportunity to adduce evidence. It was further held that if no request is made at any stage of the proceedings, there is no duty in law on the Labour Court or the Industrial Tribunal to give such an opportunity.
37. Perusal of court record shows that except issuing the show cause notice, warning letter and censure letter no authentic/admissible document has been placed on record to substantiate their allegations. Even the management witness categorically admitted that prior to termination of the workman, no chargesheet was issued to the workman, therefore, this tribunal has no reasons to disbelief the testimony of the workman. Therefore, this tribunal holds that the management has terminated the services of the workman illegally and unjustifiably vide order dated 04.06.2016. It is also observed that warning letter was issued on 26.06.2009 and termination was issued after near about seven years i.e. on 04.06.2016 on the same ground which was mentioned on 26.06.2009. The management has indulged in an unfair labour practice as enumerated in Fifth Schedule at Item No. 5(a) (b) and (f) of the I.D. Act as the services of the workman were terminated in the utter disregard of the principles of POIT No. 53/17 Page No. 29 of 36 DLCT130114542016 natural justice. This tribunal therefore, sets aside the order dated 04.06.2016.
38. In the present case the management has contended that the services of the workman were terminated by the management and the workman has collected his full and final payment from Noida and have proved the payment made to the workman. However, workman has contended that the management has made payment of unpaid salary of the workman, which were not paid to them timely, nor any retrenchment compensation were paid to him. It is further contended that no seniority list was displayed or no service compensation was either given or offered to the workmen during termination of his service and as such the management did not comply with the provisions of Section 25F G and H of the I.D Act as the services of the workman was terminated in violation of the principles of the last come first go as no seniority list was either displayed or exhibited before his termination. It is a well settled position of law that the provisions contained in Section 25F(a) and (b) are mandatory and termination of service of workman, without giving one month's notice or pay in lieu thereof and retrenchment compensation is null and void/illegal/inoperative as held by the Hon'ble Supreme Court in Devinder Singh vs. Municipal Council, Sanaur, AIR 2011 SC 2532.
"19. Section 25 couched in negative form. It imposes a restriction on the employer's right to POIT No. 53/17 Page No. 30 of 36 DLCT130114542016 retrench a workman and lays down that no workman employed in any industry who has been in continuous service for not less then one year under an employer shall be retrenched until he has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired or he has been paid wages for the period of notice and he has also been paid, at the time of retrenchment, compensation equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months and notice in the prescribed manner has been served upon the appropriate Government or the authority as may be specified by the appropriate Government by notification in the Official Gazette.
20. This Court has repeatedly held that the provisions contained in Section 25F(a) and (b) are mandatory and termination of the service of a workman, which amounts to retrenchment within the meaning of Section 2(oo) without giving one month's notice or pay in lieu thereof and retrenchment compensation is null and void/illegal/inoperative."
39. The division of Patna High Court in Gaffar and Ors. vs. Union of India (UOI) and Ors., 1983(31)BLJR282 have highlighted the importance of Rule 77 of I.D Rules and failing to implement the same renders the termination/retrenchment illegal. The relevant portion of the judgement is reproduced below:
"4. The Rule 77 of the Industrial Disputes (Central) Rules, 1957 which is mentioned below requires preparation and publication of a list of all workmen in the concerned category at least 7 days in advance:POIT No. 53/17 Page No. 31 of 36
DLCT130114542016 Maintenance of seniority list of workmen--The employer shall prepare a list of all workmen in the particular category from which retrenchment is contemplated arranged according to the seniority of their service in that category and cause a copy thereof to be pasted on a Notice Board in a conspicuous place in the premises of the Industrial Establishment at least seven days before the actual date of retrenchment.
This provision has been included in the Rules so that the object of Section 25G of the Industrial Disputes Act may be effectively achieved. The Industrial rule relating to retrenchment of 'last come, first go' where other things are equal has been recognised for long and affords a healthy safeguard against discrimination. The principle was given statutory recognition by amendment of the Act in 1953. The Rule 77 was framed with a view to facilitate a retrenched workman to verify that he is not being discriminated against otherwise it may be impracticable for him to collect relevant information and' enforce his right. The minimum time of seven days allowed for this purpose is not unnecessarily long, for the workman should get an adequate opportunity to scrutinize the correctness of the seniority list before he is thrown out Viewed from this angle, it should be held that the requirement mentioned in Rule 77 is mandatory and its violation renders an order of retrenchment illegal."
40. In view of the admitted position and the mandate of the law, this tribunal holds that the management has clearly committed unfair labour practice as mentioned in Fifth Schedule at Item No. 5(a), (b) and (f) of the I.D. Act by terminating the services of the workman concerned by way of victimization and in colourable exercise of employer's rights POIT No. 53/17 Page No. 32 of 36 DLCT130114542016 as no proper grounds/reasons were afforded as to why services of the workman was terminated. This tribunal further holds that the management did not follow the principles of natural justice as no domestic/departmental inquiry was conducted and his services were terminated with undue haste without offering any opportunity of being heard. It is matter of record that the management has not taken any stance that after the termination of the workman, he is gainfully employed somewhere else and has kept silence on the point of alternative employment. The workman did not took plea that he tried to get alternate job. Neither any document has been produced on record nor any evidence has been led to this effect. So, both the parties have failed to prove their rival stand on the issue of gainful employment and balance approach has to be adopted by the court.
41. It is settled principle of law that once the termination is held to be illegal the normal relief is to award reinstatement and continuity in service with backwages. The Hon'ble High Court in Delhi Transport Corporation vs Ram Kumar And Another, 1982 (44) FLR 356 has held that once the termination is held to be illegal and unjustified, the normal rule is to award reinstatement with full backwages and continuity in service except when the workman is gainfully employed coupled with receiving wages equivalent to his last drawn salary at the time of his illegal termination. The Para POIT No. 53/17 Page No. 33 of 36 DLCT130114542016 14 of the aforementioned judgement is as follows:
"......The principle is that when an employee after protracted litigation with the employer succeeds in showing that the termination of his service was unjustified he would normally be entitled to reinstatement with full back wages expecting of course if it could be shown that he had been gainfully employed in the meanwhile. Thus full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure, See Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha MANU/SC/0369/1979 : (1980)ILLJ137SC . Thus if the employer wishes to show that workman gainfully employed he must establish and prove that fact; no presumption of being gainfully employed can be raised. It is not dispute that no evidence has been led or even shown on the record by the appellant which shows that workman was at any time in between employed elsewhere. In that view there would be no justification for denying him full back wages. The mere fact of long time having elapsed is certainly not a reason to deny him his normal relief of reinstatement because as said in Panitole Tea Estate case. "If his dismissal was wrongful then merely because proceedings for adjudication of the industrial disputes have taken a long time is by itself no reason for not directing his reinstatement if it is otherwise justified being in accordance with normal rule."
42. Further, reliance upon case of Deepali Gundu Surwase vs Kranti Junior Adhyapak & Ors., Civil Appeal No. 6767/2013 decided on 12.08.2013 wherein the Hon'ble Supreme Court has held that onus to prove that the gainful POIT No. 53/17 Page No. 34 of 36 DLCT130114542016 employment shifts to the management once the workman has pleaded that he/she is not gainfully employed elsewhere. The Para 33 of the aforementioned judgement is as follows:
"33 (iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
43. In view of my aforementioned observations, finding, mandate of law it is held that that the management did not follow the principles of natural justice as no domestic/departmental inquiry was conducted and services of the workman were terminated on 04.06.2016 with undue haste without offering any opportunity of being heard and also indulged in unfair labour practice and it is held that the workman is entitled for POIT No. 53/17 Page No. 35 of 36 DLCT130114542016 reinstatement and continuity in services with 50 % back wages w.e.f. from his termination till passing of this award. Hence, this issue is decided in favour of the workman and against the management.
Issue no.5 :
Relief:
44. In view of my aforementioned findings on issues no. 1 to 4, this tribunal holds that workman Sh. Jameel Akhtar S/o late Sh. Amanullah is entitled for reinstatement and continuity in service. The workman is also entitled for 50 % back wages with all consequential benefits either monetary or otherwise w.e.f. from his termination till passing of this award. The management is directed to implement the award within 60 days of its publication, failing which, the management will be liable to pay interest @ 8 % per annum from the date of accrual to till the final payment is made. The award is passed accordingly.
45. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Record Room. Digitally signed by AJAY AJAY GOEL GOEL Date:
Announced in open Tribunal 2024.03.16 12:37:15 +0530 on this 14.03.2024 (Ajay Goel) POIT-I/RADC, New Delhi.POIT No. 53/17 Page No. 36 of 36