Delhi District Court
Sh. Rajes vs M/S General Cable Energy India Pvt. Ltd on 1 November, 2012
IN THE COURT OF SH. SATINDER KUMAR GAUTAM
ADDITIONAL DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER LABOUR COURT
KARKARDOOMA COURTS, DELHI.
DID No. 69/10
Date of Institution : 01.08.2009
Date of Judgment : 01.11.2012
IN THE MATTER BETWEEN:
Sh. Rajes
h Angira,
S/o late Sh. Ram Kumar Sharma
R/o 2357 T4, First Floor,
Near Shivaji Market, Narela
Delhi
............ Workman
VERSUS
1. M/s General Cable Energy India Pvt. Ltd.
Plot No. F2, B1 Second Floor,
Mohan Cooperative Industrial Estate,
Mathura Road,
New Delhi.
Also At :
Centram Plaza Building TowerA,
3125, Third Floor, Sector53,
Gold Course Road,
DID no. 69/10 Rajesh Angira Versus M/s. General Cable Energy India Pvt. Limited Page No. 1 out of 31
Gurgaon, Haryana.
2. Sh. Aviral Garg (CEO),
S/o Sh. L.R. Garg,
R/o House No.101, Saphire Court,
Essel Towers, Gurgaon,
Haryana.
..........Management
A W A R D
1 The workman, Shri Rajesh Angira filed the claim
petition before the Labour Court for adjudications with the
submissions that he was initially employed with M/s Plaza Cable
Industrial Ltd., E21 Darya Ganj, New Delhi in May 1987 and he
was posted in their office at Bhagirath Palace, Delhi dealing in
account. Subsequently for the reasons known to predecessor of
Management i.e M/s. Plaza Cable Industries Ltd. workman was
designated as 'Sale Tax Officer', but the workman used to work as
clerk, as he was not supervising any worker, or was empowered as
'Sale Tax Officers' nor he was assigned any administrative
power/duty. On 26.4.2006 management and its predecessor in
interest entered into a joint venture agreement, whereby
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management previously known as Navratna Energy Cable Ltd. had
taken over the assets and liabilities of predecessor firm and also
agreed to get employees of predecessor in interest i.e M/s Plaza
Cable Industries Ltd. without the consent, knowledge and desire of
the employees of predecessor in interest. All the employees of
predecessor in interest were forced to sign on certain papers, letter
heads, vouchers, etc. including the claimant to show them as fresh
employees of the management despite they were assured to get all
service benefits etc with dues from date of their respective joining.
2. It is further alleged by the claimant that he was
transferred at Sonipat under force and was assigned clerical work
only, though shown him as Sales Tax Officer without assigning
any administrative or officers power. In the year 2008 certain
documents including letters heads were got signed by the
management from the workman under duress and threats of
termination from the service. It is further alleged that the workman
used to serve with the management with due dedication,
faithfulness, hardworking without any chance of complaint about
his conduct, behaviour,workmanship and dedications to discharge
his duties.
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3. It is further alleged that workman was called at Delhi
office of the management on 17.6.2009 and workman was shocked,
stunned and grieved when he came to know that his services are
illegally and forcefully terminated w.e.f 17.06.2009 and has not
been allowed to discharge his duty.
It is further alleged that workman had also got served
a legal notice dated 14.7.2009 through registered AD and UPC and
same have been duly served upon the management but
management had not sent any reply till date to the said notice.
4. After issuing of the notice of the claim petition, the
management has filed the written statement/reply with the
submissions that present industrial dispute is not maintainable as
this court has got no territorial jurisdiction to entertain the present
industrial dispute for the reason that no cause of action arose in
territorial jurisdiction of Delhi. The appropriate government of
Haryana courts is having territorial jurisdiction to entertain the
present industrial dispute.
5. It is further alleged that present industrial dispute is
not maintainable and liable to be rejected for the reason that Mr.
Rajesh Angira failed to serve a demand notice on the management
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prior to filing the industrial dispute before the Labour court. Sh.
Rajesh Angira is not a workman within definition and meaning of
Section 2 (s) of Industrial Dispute Act 1947. All the production
activities have already been closed down in July 2009 after paying
all the due to the worker. Sh. Rajesh Angira was also paid Rs.
65,119/ through cheque no. 359524 dated 17th June 2009 sent by
Speed Post dated 18.6.2009 towards his full and final payment. Sh.
Rajesh Angira was working as 'Sale Tax Officer' and enjoying
managerial, administrative and supervisory powers. M/s Navratna
Energy Pvt. Ltd. had taken over the liability and assets of M/s.
Plaza Cable Industries Ltd.. It is denied that any of the employees
were forced to sign letter heads and vouchers and any of the
employee who joined the management in response to taking over
the liability and assets of M/s Plaza Cable Industries Ltd. was
shown as fresh employee. M/s Navratan Energy Pvt. Ltd. has
protected all the wages and period of employment with M/s Plaza
Cable Industries Pvt. Ltd.
7. The rejoinder to the written statement filed on behalf
of workmen and denied all the averments made in the written
statement by reagitating the contents and prayer made in the
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claim petition.
8. From the pleading of the parties, on 14.01.2011
following issues were framed :
1. Whether this court does not have
territorial jurisdiction to decide this case
and if so, to what effect? OPM
2. Whether the claimant is not covered
under the definition of workman as given
u/s 2(s) of the I.D. Act and if so, to what
effect? OPM
3. Whether production activities of the
management has already been closed in
July'09 and if so, to what effect? OPM
4. Whether a claimant has already been
paid his full and final dues and if so, to
what effect? OPM
5. Whether the management terminated
services of the workman illegally and
unjustifiably and if so, to what effect?
OPW
6. Relief
9. In order to substantiated the claim, the claimant
examined himself through an affidavit Ex. WW1/A and relied
upon EMail dated 14.12.09 vide Ex. WW1/1 (voucher/receipt of
full and final settlement), letter of termination dated 11.6.09 - Ex.
WW1/2, copy of demand notice dated 14.7.09 vide Ex. WW1/3,
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copies of postal receipts collectively Ex. WW1/4 etc. Claimant
was cross examined by the AR for the management at length.
10. On the other hand, management also examined MW1
- Madan Lal Bajaj who filed his evidence through an affidavit Ex.
MW1/A which bears his signatures at point A and B. He also rely
upon documents Ex. MW1/1.
11. After completion of evidence of both the parties, the
final arguments have been heard. In his statement of claim filed by
the workman he testified that initially he joined the management of
M/s. Plaza Cable Industries Limited in the month of May, 1987
dealing in accounts and was posted at Bhagirath Palace, New
Delhi.
12. In order to dispose of the claim filed by the workman,
on 14.01.11 the issues were from the pleadings of the parties. The
onus to prove most of the issues is lie upon the management. The
management has taken the legal objections through the written
statement/reply to the statement of claim as such the issue on the
point of jurisdiction of the claim and the claimant comes within
the definition of workmen as defined u/s 2(s) of the I.D. Act will
decide in the first instance.
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13. ISSUE NO. 1 :
Whether this court does not
have territorial jurisdiction to
decide this case and if so, to
what effect? OPM
The management contended through written
statement that this court has no territorial jurisdiction to entertain
the present industrial dispute for the reason that no cause of action
arose in territorial jurisdiction of Delhi. The workman's service
lastly dispensed with from the Sonipat unit as 'Sales Tax Officer
Grade -II'. As such the Haryana Court have the territorial
jurisdiction to entertain the claim. The only territorial jurisdiction
lie in the appropriate government of Haryana/Haryana Court to
entertain the present industrial dispute.
14. The said contention of the management is vehemently
denied by the workman. The claimant while contradicting this plea
alleged that his last posting was at Sonipat however he used to
work at Gurgoan also. His initial appointment was made at Delhi.
It is evident that the management functioning from Delhi having
its registered office at Mathura Road, New Delhi. This fact is also
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shown from the document Ex. WW1/M1 dated 7.3.08. The letter
dated 11.04.07 shows the only address of the management as
E514, Greater Kailash, Delhi. The management also known as
M/s. Navratan Cable Pvt. Limited. This fact is never disputed by
the management. The employment termination notice dated
11.4.07 also shows only two offices one at Dariya Ganj and
another one is at Greater Kailash. The management was got served
the notices of this court at office at Mathura Road, Delhi as given
in the statement of claim. All these goes to show that the
management has been working for it gainful through its registered
office at Delhi. Therefore, this court has got jurisdiction to try and
decide the present claim.
15. In view of the contention raised by the parties, it is a
matter of record that the management has having its registered
office and head quarter at Delhi though it has unit at 'Gurgaon'
and 'Sonipat' also and the management functioning the all office
activities from its head quarter at Delhi. The management has also
admitted that the production activities has been closed down in
Delhi in 2009 which has been contradict by MW - 1 Madan Lal
Bajaj in his cross examination while stated that :
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"........the construction of the new factory is at
Baddi, Himachal Pradesh. No such employees are
being transferred from Sonipat to Baddi. Company
is involved in trade. Te company has recruited few
employees for the construction of the new
factory........."
16. In these circumstances, as per the deposition and the
documents placed on record it is crystal clear that the management
has its registered office at Mathura Road, New Delhi and its
market office at Daryaganj and corporate office was situated at
Gurgoan. In these circumstances, the workman has raised
objection to institute his claim at all the place where it is suited to
him as well as as per the notice served to the management as
mentioned in the claim petition.
17. The section 15 to 20 CPC deals with the place of suit
shall be instituted in the court of competent to try. Section 19
described a suit is for compensation for wrong done to the person
or to movable property, if the wrong was done within the local
limits of the jurisdiction of one court and the defendant resides, or
carries on business, or personally works for gain, within the local
limits of the jurisdiction of another court, the suit may be
instituted at the option of the plaintiff in either of the said courts.
DID no. 69/10 Rajesh Angira Versus M/s. General Cable Energy India Pvt. Limited Page No. 10 out of 31
These have been illustrated in illustration A and B which says
that :
ILLUSTRATION 'A & B'
"(a) A. residing in Delhi, beats B in Calcutta, B may
sue A either in Calcutta or in Delhi.
(b) A. residing in Delhi, publishes in Calcutta
statements defamatory of B. B may sue A either in
Calcutta or in Delhi."
18. The reliance is placed on the judgment 2010 - III -
LLJ - 317 (Del.) Bageshwar Maurya vs. Management, Naveen
Projects P. Limited, it is observed that :
"...............when the appointment letter, transfer order
as well as the termination letter were issued from
Delhi, substantial cause of action has arisen within
the jurisdiction of Delhi, therefore, it cannot be said
that the NCT of Delhi was not the appropriate
Government to make reference.
The fact that the other State government has
jurisdiction will not mean that the State Government
within whose territory a part of cause of action rose
would have no jurisdiction to make the
reference......"
19. In Sarva Shramik Sangh v. M/s Indian Smelting &
Refining Company Limited & Others, 2002(2) SCT 756 (SC) :
[JT 2003(8) SC 243], this Court observed :
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"...A jurisdictional fact is one on the existence or
otherwise of which depends assumption or refusal
to assume jurisdiction by a court, tribunal or the
authority. Said fact has to be established and its
existence proved before a Court under the
Maharashtra Act can assume jurisdiction of a
particular case. If the complaint is made primafacie
accepting existence of the contractor in such a case
what has to be first established is whether the
arrangement or agreement between the complainant
and the contractor is sham or bogus. There is an
inherence admission in such a situation that
patently the arrangement is between the
complainant and the contractor and the claim for a
new and different relationship itself is a disputed
fact. To put it differently, the complainant seeks for
a declaration that such arrangement is not a real
one but something which is a facade. There is no
direct agreement between the complainant and the
principal employer and one such is sought to be
claimed but not substantiated in accordance with
law. The relief in a sense relates to a legal
assumption that the hidden agreement or
arrangement has to be surfaced........."
20. The claimant was initially employed by M/s. Plaza
Cable P. Limited at Darya Ganj, New Delhi and posted at Bagirath
Palace, Delhi - 6 in the month of April, 2006. the Plaza Cables
was merged into M/s. Navratan Cable Private Limited and all
assets and liabilities of predecessor firm and employees of
predecessor was inducted with all dues and service benefits. In
2008, the claimant was transferred to Sonipat vide Ex. WW1/M3
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issued from E - 514, Greater Kailash, Delhi. The legal notice Ex.
WW1/3 was served upon the management at Mathura Road, New
Delhi. Apart from the above, the management terminated the
service of the claimant vide letter Ex. WW1/2 was issued its
registered office at Mathura Road, New Delhi the revised term of
appointment is Ex. WW1/M2 was also issued from Delhi office.
Therefore, in view of the aforesaid facts and circumstances and the
judgment cited and the provision of the subject matter of territorial
jurisdiction, the cause of action was arise within the territorial
jurisdiction of Delhi thereby because of posting of the claimant at
the time of his termination will not ousted the jurisdiction of Delhi
Government to make reference to the Labour Court. The
management company has no independent separate office at
Sonipat thus, the Government of Delhi will be the appropriate
Government, therefore, in view of foregoing discussion, the issue
no. 1 regarding territorial jurisdiction is decided in favour of the
workman.
21. ISSUE NO. 2 :
Whether the claimant is not
covered under the definition of
workman as given u/s 2(s) of
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the I.D. Act and if so, to what
effect?
The management has contended that the workman
was working as a 'Sales Tax Officer' Grade - II but there is no
such material on record which shows that the workman is being
doing the work of supervisory and managerial. The claimant has
no authority to grant a leave, issue a gate pass or any other
activities shown as supervisory in nature. The management has not
produced any relevant record of the workman or any subordinate
staff or any document which show that the workman was enjoying
exercising managerial, administrative and supervisory powers it
had the same with the management or had there been any truth.
22. As per the provision of Section 114 (2(g)) of Indian
Evidence Act says that :
"(c)......the court may presumed the existence of
any fact which it thinks likely to have happened
regard being had to be common course of natural
events, human and conduct and public and private
business, in their relation to the facts of the
particular case........"
"(g) ........evidence which could be and is not
produced would, if produced, be unfavourable to
the person who withholds its......"
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23. The management witness MW1 Madan Lal Bajaj has
stated that he has deposed on the basis of record only and further
admitted that management is a incorporated company which is
supposed to maintain record of its each and every activity
including service record and nature of duties of its employees but
the management has not produced such record. The management
witness also testified that they deployed the sale tax work but he
unable to give their names and details all these employees.
Therefore, it seems that the management has withhold relevant
record as such adverse inference will be withdrawn against the
management. The Authorised Representative of the management
cross examined the workman and the workman denied the
suggestion that eight employees were working under 'Sales Tax
Officer'. The testimony of MW1 - Madan Lal Bajaj in his
deposition taken a contradictory stand. The management witness
also have dispute that there was no policy applicable to alleged
grade which given to the claimant. Though the AR for the
management have taken the stand that the claimant is bound down
to the policy applicable in addition to term mentioned in the
appointment letter. As per the clause - 13 of the letter vide Ex.
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WW1/M - 1, wherein it is mentioned that the term set out in this
letter are comprehensive and not exhaustive. Thus, the
management has not produced the relevant record which has
specifically in the knowledge of the management. Therefore, the
management has not discharged the burden by producing the
relevant record. As such the adverse inference will be drawn
against the management and to this effect, the workman relied
upon a judgement Shankerbhai Mathalal Prajapat Versus Maize
Products 2003 (96) FLR 829 wherein it is observed in para no.
3.10 that :
".........Moreover the labour court has totally shit its
eyes to the fact that issue with regard to the
maintainability of the reference was agitated by the
respondent and it was the respondent's duty by
placing adequate reliable evidence before the Labour Court to establish that the petitioner was not a workman. For that purpose, the respondent was required to place before the Labour Court the nature of duties assigned to the petitioner while he worked as Junior Shift Chemist in the starch department. Neither oral nor any documentary evidence has been produced. The respondent has neither placed on record, the duty manual nor a copy of the advertisement that might have been issued inviting the applications to fill up the post of Junior Chemist. If that be so it can well be said that the respondent has totally failed to discharge its duty and the laour court has committed grave error in not deciding the issue in favour of the petitioner. Needless to say that is the respondent duty to DID no. 69/10 Rajesh Angira Versus M/s. General Cable Energy India Pvt. Limited Page No. 16 out of 31 produce cogent and reliable evidence to substantiate its say. It may be noted that the nature of objection that has been raised by the respondent goes to very root of this proceedings and therefore, it is for the respondent to establish the fact that the petitioner is not a workman within the meaning of section 2 (o) of the ID Act.
24. The section 2 (s) of the Industrial Dispute Act defines the "workman" as under : "Workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or regard, whether the terms of employment be express or implied, and for the purposes of any proceedings under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person
(i)who is subject to the Air Force Act, 01950 (45 of 1950) or the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed mainly in a managerial or administrative capacity;
or
(iii) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties, attached to DID no. 69/10 Rajesh Angira Versus M/s. General Cable Energy India Pvt. Limited Page No. 17 out of 31 the office or by reason of the powers vested in him, functions mainly of a managerial nature.
"...........Definition would show that workman means a person employed in an industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward. A school of though that somebody who does not fall under the exceptions enumerated under Section 2(s) of the Act shall be a workman was being followed. In H. R. Adyanthaya and others v. Sandoz (1) Limited and others, (1994) 5 SCC 737, Supreme Court analysed all the previous judgments and held that it was not sufficient for a person to be a workman that he does not fall within the exceptions given in Section 2 (s). In order to be a workman the specific nature of work as given under Section 2 (s) the Act must be shown to be the one being done by the person. There may be employees who do not do any supervisory or administrative work but may be out of the scope of the definition. Supreme Court reiterated the approach it had taken in May & Baker India Co. Ltd. v. Their Workmen, AIR 1964 SC 472 and Burmah Sheel Oil Storage & Distributing Co. of Association and others, AIR 1971 SC 922. While summarizing the legal position, Supreme Court held as under: "We thus have three three Judge Bench decisions which have taken the view that a person to be qualified to be DID no. 69/10 Rajesh Angira Versus M/s. General Cable Energy India Pvt. Limited Page No. 18 out of 31 a workman must be doing the work which falls in any of the four categories, viz., manual, clerical supervisory or technical and two two Judge Bench decisions which have by referring to one or the other of the said three decisions have reiterated the said law. As against this, we have three threeJudge Bench decisions which have without referring to the decisions in May & Baker, WIMCO and Burmah Shell cases have been taken the other view which was expressly negatived, viz., if a person does not fall within the four exceptions to the said definition he is a workman within the meaning of the ID Act. These decisions are also based on the facts found in those cases. They have, therefore, to be confined to those facts. Hence the position in law as it obtains today is that a person to be a workman under the ID Act must be employed to do the work of any of the categories, viz., manual, unskilled, skilled, technical, operational, clerical or supervisory. It is not enough that he is not covered by either of the four exceptions to the definition. We reiterate the said interpretation......"
25. In case of LIC of India versus R. suresh, 2008 (H8) FLR 1189 (SC), it is held that "29. A Development Officer has been held , to be a "workman" in SK Verma. We, however, are not unmindful of a decision of a threeJudge Bench of the Court in Mukesh K. Tripathi V. LIC, 2004 (103) DID no. 69/10 Rajesh Angira Versus M/s. General Cable Energy India Pvt. Limited Page No. 19 out of 31 FLR 350; 2004 LLR 993 (SC), wherein the question was as to whether an apprentice would be a workman within the meaning of the provisions of section 2 (s) of the Industrial Dispute Act, 1947. It is not a case where case of an apprentice is involved."
27. It is well settled law that the designation and salary is not a criteria to decide the issue of workman. The nature of duties is to be described and management has not produced any order or document to show that the claimant has enjoyed any ministerial or supervisory work. This is supported with the of Hon'ble High court of Delhi in their judgement LKP Merchant Financing Limited Versus Govt. of NCT of Delhi and Others 2003 II AD (Delhi) 497.
28. In view of the aforesaid discussion and authority cited, this issue is decided in favour of the workman and against the management.
29. ISSUE NO. 3 : Whether production activities of the management has already been closed in July'09 and if so, to what effect?
OPM.
DID no. 69/10 Rajesh Angira Versus M/s. General Cable Energy India Pvt. Limited Page No. 20 out of 31 The onus to prove this issue is upon the management. The management witness MW1 - Madan Lal Bajaj has not stated in his affidavit anywhere that the management production activities have already been closed in July, 09 though the management has contended in the written statement. There is no documentary evidence placed on record which showed to be proved that the management production activities have been closed in Delhi in July, 2009. The workman in his cross examination has denied this averments and further testified that it is not in his knowledge that the land belongs to factory building was acquired by National Highway Authority of India.
30. The management strongly contended that manufacturing unit was closed in July, 2009 and the management has not lead any specific cogent evidence to this effect nor filed any documents in support of this contention. In case of management establishment has been is closed down, the relief of reinstatement cannot be granted to the workman as the most he can be compensated by management in lieu of reinstatement and back wages and other benefits etc. as provided under the Industrial Dispute Act. With these observation, this issue stands disposed of against the DID no. 69/10 Rajesh Angira Versus M/s. General Cable Energy India Pvt. Limited Page No. 21 out of 31 management.
31. ISSUE NO. 4 & 5
Whether a claimant has already been paid his full and final dues and if so, to what effect?
& Whether the management terminated services of the workman illegally and un justifiably and if so, to what effect?
Both the issues no. 4 and 5 decided together by the common observation as both have involved common question of law and facts. The management through out in its pleadings has repeatedly agitated that all the workmen/ employees have already been collected their full and final dues as the production activities have already been closed down in July, 2009. The present claimant has also granted his dues of Rs. 65119/ through the cheque no. 395942 dated 17.6.09 sent by speed post dated 18.6.09 towards his dues and on this receipts of full and final payment of DID no. 69/10 Rajesh Angira Versus M/s. General Cable Energy India Pvt. Limited Page No. 22 out of 31 dues is placed on record. The claimant has received his dues without any protest as such the the present industrial dispute is not required to be arose.
32. The workman in his cross examination on behalf of the management admitted that he received the Ex. WW1/2 by post. It is also admitted that he received a cheque of Rs. 65119/ and got the same encashed. In his cross examination, the workman admitted that he sent the demand notice Ex. WW1/3 to the management. He denied the suggestion that he accepted the cheque of Rs. 65119 without protest vol. He sent email to the management in this regard, copy of the same is Ex. WW1/1. The MW1 Madan Lal Bajaj has stated that at the time of discharge of the claimant, he was paid his entire dues vide Ex. WW1/2 which include the three months notice pay alongwith full and final notice pay i.e. basic pay which include his full and final payment of dues. The Ex. WW1/2 was sent through post as the claimant refused to receive the same personally.
33. The management has not explained as to what amount as failed to prove that the full and final dues were paid to workman. It is evidence that the workman had been serving the DID no. 69/10 Rajesh Angira Versus M/s. General Cable Energy India Pvt. Limited Page No. 23 out of 31 management since 1987 and his last drawn salary was Rs. 28,033/ and it is very surprising that the total amount paid by the management was Rs. 65119 which include three months notice pay. The said amount paid through a cheque sent by post by the management but the workman has not accepted the same willingly and protested the same by sending Email, communicated vide mail Ex.WW1/5. There was no show cause & notice was given to the workman nor any departmental inquiry was conducted by the management while terminated the service of the management. It is contended that the management has served the employment termination notice Ex. WW1/M1 to the workman. In the document Ex. WW1/M1 it is mentioned that Navratna Energy Cable Pvt. Limited and Plaza have signed a joint venture Agreement dated 26.4.06 under which M/s Plaza Cable has agreed to terminate the employment of all of its employees and M/s Navratna Cable has agreed to engage all or substantially all such employees. It is also mentioned in Ex. WW1/M1 that Plaza has paid all salaries and charges due to the workman by way of full and final settlement and the workman has no outstanding claims or dues of any kind against M/s Plaza Cable. The workman has DID no. 69/10 Rajesh Angira Versus M/s. General Cable Energy India Pvt. Limited Page No. 24 out of 31 accepted the document Ex. WW1/M2 and accepted all the terms of the employment as all the previous employment and postings and accepted his transfer at Sonipat. The service of the workman was terminated on 17.6.09 vide termination letter Ex WW1/2 with the reason that the current business situation and the market factors affecting their business model, the company has taken a decision to terminate his service with immediate effect in terms of clauseVIII of his Employment Contract whereby the management waive off the notice period vide payment of ninety (90) days salary in lieu thereof. But the management has not forward to produce the statement of account, balance sheet, financial crises by any mode to the claim for any other employee may staying the business situations without any substantiate evidence. In this respect the workman has successfully proved that his services were terminated illegally which is otherwise clear from the letter of termination dated 17.6.09 which has not disclosed a similar reason or justification for termination of the service of the workman. The said letter does not disclose any mistake on the part of the workman. It is also clear that the services of the workman were terminated without paying compensation hence it is clear that the DID no. 69/10 Rajesh Angira Versus M/s. General Cable Energy India Pvt. Limited Page No. 25 out of 31 termination of the workman was illegal and against the settled provisions of law. The management has also not sought the permission from the appropriate authorities/government to be taking a harsh steps before terminating the service of the workman. The management has not given any details of the other employees for the termination and giving their service benefit nor any intimation was sent to the appropriate government. The management has not produced any cogent and reliable evidence to substantiate the plea taken by the management.
34. In Suresh Bhati Versus Kapil Industries, bearing WPC (Civil) No. 1163446/2006 decided on 25.7.06, the Hon'ble High Court observed that : ".......none payment of retrenchment compensation to the workman will tendering the termination illegal..........".
35. The said judgement is also supported by State of Maharashtra in Shadial Giani Syed 2002 LLR Page 1155 Mumbai High Court.
36. The proviso to S. 25O cannot transplanted by any interpretation to be a proviso to S. 25 N which deals with entirely DID no. 69/10 Rajesh Angira Versus M/s. General Cable Energy India Pvt. Limited Page No. 26 out of 31 a different topic of conditions precedent to retrenchment of workmen. Retrenchment presupposes the termination of surplus workmen in a going concern which is not closed own. If the concern itself is closed own, al the workmen would be terminated by closure and on such closure, for calculating the compensation payable to them as closure compensation, the amount of compensation may be computed adopting the measure for compensation as if it was retrenchment and to that extent, S.25 FFF may be pressed into service by the closed undertaking. However, if the impugned notices are treated to have effected on the retrenchment of workmen for going project or establishment, the proviso to S. 25 - O (1) cannot be pressed into service by any judicial interpretation; such interpretation would go against the very legislative intent in enacting S. 25N )1) without any such proviso : Lal Mohammad vs. Indian Rly. Construction Co. Limited AIR 1999 SC 355 (1999) 1 SCC 596.
37. Whether the restrictions imposed under S. 25O (as amended in 1982), are reasonable is to be determined in the light of the Directive Principles of State Policy which through Art. 41 works against underserved want or unemployment; that DID no. 69/10 Rajesh Angira Versus M/s. General Cable Energy India Pvt. Limited Page No. 27 out of 31 reasonableness is to be considered on the touchstone of the Act's policy and purpose : DCM Ltd. v. Union of India AIR 1989 Del.
193.
38. In view of the aforesaid discussion and the material on record as well as authorities cited though it is a matter of fact that an amount of Rs. 65119 was received by the workman under protest vide Ex. WW1/5 but same is not full and final settlement of the dues for the service incurred since 1987. It is a matter of fact that while recession to the employees the management has not proved any evidence which showed that the management establishment have been in the criss due to the financial unfair labour practice. Therefore, the contention as alleged in the termination letter is not substantiate by any ocular and trustworthy evidence accordingly these issues no. 4 & 5 are decided against the management.
39. ISSUE NO. 6 : RELIEF It is admitted fact by the workman that he is not made any efforts for getting his employment or he did not enrolled himself with any Employment Exchange though his house hold DID no. 69/10 Rajesh Angira Versus M/s. General Cable Energy India Pvt. Limited Page No. 28 out of 31 expenses are Rs. 6000/ p.m. which is incurred by him while doing tuition work which means that he is gainfully employed. Though the workman in his evidence admitted that his last drawn salary was Rs. 28,033/ now his income by tuition work is Rs. 6000/ it is herculean in task to incurred house hold expenses which is miger one and seems that the workman's evidence cannot be relied upon on this account. Therefore, the workman is not entitled for back wages. At the time of deposition on 25.3.11 he has alleged that he is 44 years of age and has 16 years service are left to be spent. If the claimant has made sincere efforts being qualified and experience person and can get much better job of opportunity but it seems that he deliberately concealing the true facts on this account. Therefore, instead of giving a relief of reemployment it will be better in the interest of justice to award him a lump sum compensation. This view is strengthen by the judgement of Indian Acrylies Ltd. And Anr. vs. Presiding officer, Labour Court, Patiala and Ors. 2011 LLR 794, wherein it was observed that : "........Compensation of Rs.5, 25, 000/ to each workmen, in lieu of reinstatement when the termination of the workmen has been held to be illegal, would be appropriate whereas the workmen has worked only for less than three years and over 15 years have been passed from termination." it was observed in para no.11 " Their lordships of the Hon'ble DID no. 69/10 Rajesh Angira Versus M/s. General Cable Energy India Pvt. Limited Page No. 29 out of 31 Supreme Court in Santosh Kumar Seal's case (supra), have granted an amount of Rs.40,000/ only in lieu of reinstatement in service by taking note of a fact that the workmen's service was terminated more than 25 years earlier to the order of reinstatement. Same is the position in other two cases cited by counsel for the appellant. Para no.12. In the present case, counsel for the appellant/management was very fair when he stated that the management is ready to pay an amount of Rs. 4, 50,000/ to each workmen, towards final settlement of all disputes........"
41. The Hon'ble High Court of Delhi recently held in 2012 VII AD (Delhi) 658 Delhi Transport Corporation Versus Chander Mohan as under : ".....the relief of reinstatement and back wages given to the respondentworkman, a daily wager, cannot be sustained at all and the discretion exercised by the Labour Court while directing the management to reinstate the workman with full back wages cannot be said to have been exercised reasonably...."
42. Therefore, in view of the aforesaid discussion & authority cited, be award a lumpsum compensation to the workman Rajesh Angira instead of reinstatement. In these circumstances and considering the record of service tenure of the workmen, it deem fit, if the workmen be awarded a lump sum of Rs. 2,00,000/only (Rupees two lacs).
43. The management be directed to pay a sum of Rs. DID no. 69/10 Rajesh Angira Versus M/s. General Cable Energy India Pvt. Limited Page No. 30 out of 31 2,00,000/ to the workman namely Mr Rajesh Angira within thirty days after date of publication of this award, failing which, the workman will also be entitled to get future interest @ 8% p.a. from the date of publication of award till its realization. Accordingly, reference is answered.
44. Copy of the Award be sent to the Secretary (Labour) Government of National Capital Territory of Delhi for necessary action. The award be also sent to server (www.delhicourts.nic.in).
The file be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 1ST DAY OF NOVEMBER, 2012.
(SATINDER KUMAR GAUTAM) PRESIDING OFFICER LABOUR COURT KARKARDOOMA COURTS : DELHI.
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