Delhi District Court
Sh. Ved Prakash vs M/S The Nacon Marketing Services Pvt. ... on 29 September, 2007
1
IN THE COURT OF SH. S.K. SARVARIA
PRESIDING OFFICER, LABOUR COURT NO. XII
ID No. 1369/2004
INDUSTRIAL DISPUTE BETWEEN
Sh. Ved Prakash,
S/o Sh. Sunder Lal,
R/o H.No. 35-36, Hari Nagar Ashram,
Delhi. ................Workman.
AND
M/s The Nacon Marketing Services Pvt. Ltd.,
252B, Ist Floor, Prince Plaza Sant Nagar,
East of Kailash, New Delhi - 65. .........Management.
Date of Institution: 27.10.2004
Date of Argument: 24.9.2007
Date of Award: 29.9.2007
I.D. No. 1367/2004
2
AWARD
1.The Industrial Dispute between the management M/s The Nacon Marketing Services Pvt. Ltd., 252B, Ist Floor, Prince Plaza Sant Nagar, East of Kailash, New Delhi - 65 and its Sh. Ved Prakash, S/o Sh. Sunder Lal, R/o H.No. 35-36, Hari Nagar Ashram, Delhi was referred by Secretary (Labour), Government of The National Capital Territory of Delhi for adjudication in exercise of powers conferred by section 10 (1) (c), 10 (1)
(d) and 12 (5) of the Industrial Dispute Act 1947 (in short Act) vide his Order No. F.24 (1367) /2004 - Lab./5117 - 21, dated 13th August 2004 2005 with the following terms of reference :
"Whether Sh. Ved Prakash, S/o Sh. Sunder Lal has abandoned his job on his own or his services have been terminated illegally and or unjustifiably by the management and if so to wat relief is he entitled and what directions are necessary in this respect?"I.D. No. 1367/2004 3
2. The notice of reference was issued to the workman who filed statement of claim alleging, in brief, that he had been principally employed with the management since 24.4.1993 as Salesman cum Accountant and was getting Rs. 7000/- per month as salary. He was asked by the management to work on the said post in the office of management at 252-B, First Floor, Prince Plaza, Sant Nagar, East of Kailash, New Delhi and the workman was working in the said office since 24.4.1993.
3. The workman reported for duty on 20.6.2003 but the workman was not allowed to work and, therefore, the management illegally terminated the services of workman on 20.6.2003 though nothing was given in writing by the management. No statutory dues such as notice pay, retrenchment compensation , and other dues were paid or offered by the management.
I.D. No. 1367/2004 4
4. On 18.8.2003 the workman issued a demand notice to management through registered post and which was duly served upon the management but the management failed to comply with the said notice. The management sent a reply dated 25.8.2003 to the notice of the workman, however, the contents of the said reply were false and frivolous. The conciliation proceedings were initiated by filing of statement of claim before conciliation officer but the matter could not be reconciled. Hence, the reference.
5. The workman has not been gainfully employed since the day of his illegal termination inspite of his best efforts to get the job. The workman has prayed for an award in his favour directing the management to reinstate the workman in the service with full back wages and continuity of service alongwith other consequential benefits, by award of this Labour Court.
I.D. No. 1367/2004 5
6. The management contested the claim and filed written statement, disputing that the claimant is not a workman as defined in Section 2 (s) of the Act, so this Labour Court has no jurisdiction to entertain and adjudicate the present matter. The case of the management is that the claimant has been absenting from the duty unauthorisedly w.e.f. 20.6.2003. The management has alleged that the job of the claimant was to monitor and manage the sales activities of STD, PCO Machines and to collect service revenue from Field Service Engineers and to take accounting of both the activities and submit the records to the management. The management has discontinued sales and services activity of the STD and PCO Machines since December 2004. . The management at present is engaged in marketing of Eureka Forbes water purifiers. The management has not employed any Field Sales and Service Staff nor it is required for the management in the job, the management is currently engaged in. Under these circumstances the services of the claimant have become redundant. I.D. No. 1367/2004 6
7. The management has alleged that the claimant joined the services of the management as a Salesman from 1993 and worked with the management till September 1997. The claimant started his own business of running a photocopier and courier business. The applicant rejoined the services of the management as Sales cum Accounts Manager in August 1999, and was drawing Rs. 6500/- per month as salary. The claimant was regularly getting into fights with staff members and customers. The claimant used to pressurise employees, service staff, to mis represent sales/servicing renenue and then sharing the profit between themselves. On asking for detalis, reports, the applicant would always delay in submitting reports and then manipulate reports by erasing service records. The management has never terminated the services of the claimant on 20.6.2003 or at any point of time. The management has denied the other facts stated in the statement of claim and has prayed for its dismissal.
I.D. No. 1367/2004 7
8. In the rejoinder the workman has denied the avernments made in the written statement and has reaffirmed the facts stated in the statement of claim.
9. The controversies between the parties in the pleadings resulted in the framing of the following issues by the tribunal on 2.3.2006:-
ISSUES
1. Whether the claimant is not a workman as defined in Section 2 (s) of the ID Act? OPM.
2. Whether the workman abandoned the job as alleged in preliminary objection in para-3 of written statement?
OPM.
3. Whether the services of the workman have been terminated illegally and/or unjustifiably by the management? OPW.
4. To what relief if any in terms of reference is the workman entitled.
I.D. No. 1367/2004 8
10. In support of his case the workman as WW-1 has filed his affidavit in evidence and he was cross examined on behalf of management after which the workman closed his evidence. The management has also examined five witness MW-1 namely Sh. Kaushal Chaudhary, MW-2 Sh. Khalid Kamal, MW-3 Sh. Raman Jairath, MW-4 Sh. Raman Kumar, Clerk in Bank of Bank of Baroda, MW-5 Sh. Raghvendra Kumar Tiwari. Affidavits of MW-1 to MW-3 were filed and they gave statement regarding tendering of their affidavits in evidence. Though MW-4 and MW-5 did filed their affidavits in evidence but were examined in chief. MW-1 to MW-5 were cross examined on behalf of workman before learned local commissioner appointed by this Tribunal, after which the management closed its evidence.
11. I have heard learned authorised representatives of the parties and have gone through the written arguments filed on their behalves record of the case and relevant provisions of law carefully. My findings on the issues framed are as under:-
I.D. No. 1367/2004 9
12. ISSUE NO.1 The case of the claimant/workman is that he was working with the management since 24.4.1993 as Salesman cum Accountant and was getting Rs. 7000/- per month as salary. But according to the management the claimant is not the workman as per the definition given in Section 2 (s) of the Act. He was mainly working with the management in the Managerial and administrative work. The management has also alleged that the main job of the claimant was to monitor and manage the sales activities of STD & PCO machines and to collect the revenue from the service engineers and to take the accounting of both the activities and submit the record to the management The management has also alleged the claimant joined the services of the management in 1993 and he worked upto September 1997. He started his another business of running a photocopier and courier business rejoined the services of the management as Sales cum Accounts Manager in August 1999, was drawing Rs. 6500/- per month as salary.
I.D. No. 1367/2004 10
13. There is an important document produced by the workman which is the certificate issued by the management Ex. WW-1/1 which shows that the management issued a certificate stating that the claimant was working as Senior Accountant on 24.4.1993 and was having ten years working experience of computer and manual accounts, and store keeping. He can prepare all types of accounts, & storekeeping and other office routine work etc. No where, in the certificate it is stated that the claimant was doing the supervising work of any account and there was any break in the service of claimant.
14. In the reply before conciliation officer Ex. MW-1/6, the management nowhere has stated that the claimant has left the job of his own and rejoined the services in August 1999 as Sales cum Accounts Manager. The same is the position of the reply Ex. MW-3/W-2 of the management in response to the demand notice Ex. MW-3/W-1 issued by the workman. Therefore, the story of the management that the claimant left the job and rejoined its services again in August 1999 cannot be believed. The case of the workman that he was in continuous service of I.D. No. 1367/2004 11 the management is proved by the certificate issued by the management Ex. WW-1/1.
15. The management has not led any documentary evidence to establish that the claimant was doing the Supervisory work or he was doing managerial and administrative duties with the management. The management has relied upon the evidence of MW-3 one of the, Directors of the management firm , who was initially examined in chief as MW-1 and before learned local commissioner he was cross examined as MW-3 so the necessary correction is made in examination in chief of MW-3. Affidavit in evidence which was earlier marked as Ex. MW-1/1 is now marked as Ex. MW3/A to avoid confusion. MW-3, Sh. Raman Jairath, in his affidavit in evidence has stated that the claimant was engaged in managerial and administrative work. The main job of the claimant was to monitor and manage the sales activity of STD and PCO machines and to collect the service revenue form field service engineers and to pay accounting of both the activities and submit records to the management. The management has also relied on the statement made I.D. No. 1367/2004 12 by the workman in the cross examination that his main job was to monitor and manage sales activities of STD and PCO machines and to collect revenue from service engineers and to take accounting of both the activities and submit the record to the management. But the management has not proved by documentary evidence the nature of duties/work of claimant, while he was working in the employment of the management. Admittedly the claimant was looking after the sales activities and the accounts of the management and certificate Ex.WW- 1/1 shows that he was also having the 10 years experience of working in computer and manual accounts and storekeeping and he can prepare all types of accounts and store keeping and other routine work of office. But no where in the evidence it is stated that the claimant was engaged in managerial and administrative work of management. The management has also alleged that he was re-employed, but his designation is no where specified by the management in reply to the statement of claim before conciliation officer Ex. MW-1/6. Therefore, it is not made clear or established by evidence by the management that the workman was looking after the sales activities and collecting revenues, or was doing I.D. No. 1367/2004 13 the accounts work of the management or was working as supervisor with the management. Even if the oral evidence of management coupled with aforesaid admission of the workman in the cross examination supports the case of management, and leads to adverse inference that the claimant was working as Supervisor and was engaged in doing administrative and managerial activities the opposite view also emerges from the Certificate Ex. WW-1/1 and oral evidence of workman. Under these circumstances the following case law becomes relevant.
16. In K. C. P. Employees' Association, Madras v.
Management of K. C. P. Ltd. AIR 1978 SC 474, it was observed by the Apex Court:
"5. In Industrial Law, interpreted and applied in the perspective of Part IV of the Constitution, the benefit of reasonable doubt on law and facts, if there be such doubt, must go to the weaker section, labour. The Tribunal will dispose of the case making this compassionate approach but without over-stepping the proved facts, correct the balance-sheets and profit and loss accounts of the Central Workshop to the extent justified by the Act and the evidence and finish the list within three months of receipt of this order. The I.D. No. 1367/2004 14 appeals are dismissed. No costs."
17. In Workmen VS M/s Williamson Magor & Co. Ltd. and Anr
- 1982 SCC (L&S) 42, the Apex Court observed:
"............When, however, the word 'victimisation' can be interpreted in two different ways, the interpretation which is in favour of the labour should be accepted as they are the poorer section of the people compared to the management.
13. This Court in the case of Employees' Association v. Management of K.C.P. Ltd., Madras observed: (SCC p. 44, para 5) In Industrial Law, interpreted and, applied in the perspective of Part IV of the Constitution, the benefit of reasonable doubt on law and facts, if there be such doubt, must go to the weaker section, labour. The Tribunal will dispose of the case making this compassionate approach but without overstepping the proved facts, . . .
14. We would therefore accept the interpretation of the word 'victimisation' in the normal meaning of being the victim of unfair and arbitrary action, and hold that there was victimisation of the superseded workmen."
18. In S.M. Nilajkar and Others v. Telecom Distt. Manager, Karnataka, (2003) 4 SCC 27; 2003 LLR 470 (SC), the Apex Court was of the opinion that the labour laws being beneficial pieces of legislation I.D. No. 1367/2004 15 are to be interpreted in favour of beneficiaries, According to the Court, in case of doubt or where It la possible to take two views of a provision, the benefit must go to the labour.
19. In the light of K. C. P. Employees' Association's Case (Supra),Williamson Magor & Co. Ltd. 's Case (Supra) S.M. Nilajkar and Others Case (Supra), out of two equally good, the view which favours the workman needs to be accepted. Thus I hold that claimant is a workman within the meaning of Section 2 (s) of the Act.
20. In view of the above issue no.1 is decided in favour of workman and against the management.
21. ISSUE NO.2 &3 Both the issues are interconnected and so are being decided together.
I.D. No. 1367/2004 16
22. The contention on behalf of management is that the management has written several letters Ex.MW-1/1 dated 2.8.2003 and Ex. MW-1/2 dated 25.7.2003 and Mark 'A' dated 25.6.2003, calling upon the workman to report for duty. In the reply to the statement of claim of management in the Conciliation Proceedings, the management has asked the workman to report for duty, but the workman did not do so. So the workman is not entitled to relief of reinstatement to the job and back wages. Reliance is placed upon the authorities New India Cooperative Bank Ltd. VS Shankar B. Bangera 2006 III CLR 904 Bom., TrilokiNath VS Sh. Dharampaul Arora & ANOther 2006 IV AD (Delhi) 192, Sh. Raju Shanker Poojary Vs Chembur Warehouse Company & Another 2003 LAB. I.C. 2937 Bom., Extrusion Process Ltd. Vs Rajendra A. Sev. & Another 2004 LLR 865 Bom., Continental Construction Ltd. Vs Presiding Officer & Another 2004 (102) FLR 1190 H.P., Tej Pal Vs Gopal Narain & Sons & Another 2006 LLR 1142 Del., Competition Printing Press Vs Sariut Jaiprakash Singh & Another 2001 I CLR 948 Bom., Sonal Garments VS Trimbak I.D. No. 1367/2004 17 Shankar Karve 2003 LLR 5 Bom., Suja Agencies VS Uday Sing B. Rawat& Another 2004 LLR 2004 20 Bom., Hindustan Petroleum Corporation Ltd. VS D. N. Vidhata and Another 2004 LLR 21 Bom., M/s Purafil Engineers, Pune VS Shaikh Anwar Abdul Rahman 2000 LLR 268 Bom., State of Punjab VS Jagir Singh, 2004 III CLR 969 SC. In these cases the workman was offered employment/ to join duty in the Conciliation Proceedings and/or in the written statement before the industrial adjudicator and he did not avail this opportunity so it was held that the workman was not entitled to reinstatement to the job and back wages.
23. It is true that if the management offers the workman an opportunity to join duty during the conciliation proceedings or proceedings before industrial adjudicator and workman does not avail the same then he is not entitled to the relief of reinstatement to the job, continuity of service and back wages in an industrial dispute raised against the management as per above case law cited on behalf of I.D. No. 1367/2004 18 management. But the offer made by the management should not be an eye wash or empty formality. In the present case although in the reply Ex.. MW-3/W-2 dated 25.8.2003 the management though, offered the workman to join duty but at the same time made indications in this reply that the management who was availing duties of workman as Manager, Sales and Accounts, his responsibilities included handling of sales team, customer interacation, handling cash transactions and supervising accounts of the company and the workman was to submit the details of transactions handled by him. But the management nowhere has specified the amount of the cash to be submitted or deposited by the workman with the management or any shortfall thereof, in the reply Ex. MW-3/W-2 and reply Ex. MW-1/6 before conciliation officer, or in the written statement filed here. Therefore, offer of joining the duty given to the workman is alongwith a hidden threat of the management with regard to allegations about cash transactions handled by him. Similarly in the reply before Conciliation Officer Ex. MW-1/6 although the management offered duty in the conciliation proceedings, I.D. No. 1367/2004 19 but has also stated that the management was willing to pay gratuity to the workman upon resignation from the employment. Therefore, this offer is also made alongwith offer to the workman to submit resignation and take gratuity from the management. Therefore, the offer made by the management to the workman in reply Ex. MW-1/6 and before conciliation officer Ex. MW-3/W-2 cannot be said to be genuine offer to workman to join duty. In the written statement filed in this Labour Court the management has shut the door for workman by stating that it has changed the nature of its activities and the services of the workman have become redundant, without specifying reasons why the workman cannot look after the present accounts, sales and store work etc. of management.
24. Much reliance is placed upon the reply dated 25.8.2003 Ex. MW-3/W-2, calling upon the workman to join duty. But these letters though are supported by UPC receipt and postal receipt but no AD card was produced showing the receipt of either of the letters by the workman. In view of sending of the letter by UPC etc the rebuttable I.D. No. 1367/2004 20 presumption of service may arise, but since the workman has denied having received these letters, coupled with the fact that in the reply to the demand notice Ex. MW-3/W-2 of the management, there is no mention of these letters issued to the workman to report for duty nor the reply before conciliation officer Ex. MW-1/6 finds mention of these letters, under these circumstances, the issuance of and service of these letters Ex. MW-1/1 and Ex. MW-1/2, upon the workman calling upon him to join duty is doubtful. So no benefit can be derived from these letters by the management. Therefore, in the given facts and circumstances of the case it cannot be said that the management made genuine offer to workman to join duty.
25. In the light of the above discussion, the authorities relied upon on behalf of management do not help the management as the alleged offer of employment made by the management to workman was only for name sake, eye wash, empty formality and was not genuine. Therefore, the management has failed to prove that it is the workman who has I.D. No. 1367/2004 21 abandoned the services of management on 20.6.2003. Under these circumstances, I am of the view that the services of the workman were terminated by the management and believe the case of the workman in this regard. Therefore, both the issues no.2 and 3 are decided in favour of workman and against the management.
26. ISSUE NO.4 The workman has raised this case due to illegal termination of his services. The management has tried to make allegations against the workman regarding mishandling of cash or about integrity of workman and has even produced the witnesses MW-1 and MW-2 who have stated in their respective affidavits in evidence that on various occasions the claimants use to pick up fights with staff members and customers and he used to pressurise the employees of the company, servicing staff to misrepresent sales/servicing revenue and then sharing the profit between themselves. These are bald allegations and unsubstantiated by documentary evidence of the management. The management has not I.D. No. 1367/2004 22 quantified any kind of financial loss or any amounts in such alleged mishandling of cash or transactions by the workman. The allegations made by the management against the workman are also not specified, despite the opportunity to lead evidence. No particular instance or transactions is specified. The management has not proved on record that any show cause notice was issued to the workman for alleged mishandling of the cash by the workman. It is not the case in which any charge sheet was issued against the workman or any domestic enquiry was got conducted against him. The management has not brought anything in writing to prove any misconduct on the part of the workman. Therefore, merely on the basis of bald allegations about integrity of workman and misappropriation of the cash in the cash transactions without specific evidence there cannot be adverse finding against the workman on this point, particularly when the management has not issued any charge sheet nor got conducted any domestic enquiry amongst workman nor sought any opportunity in written statement to prove any misconduct against the workman. Although in the light of Diamond Toys Case referred below, it was not necessary for management to take I.D. No. 1367/2004 23 disciplinary action against the workman in case workman has abandoned the job but the management here has not been able to prove that the workman abandoned the job. On behalf of the management reliance is placed upon the judgment of Hon'ble High Court of Delhi in writ petition No. 4501/2004 titled as Diamond Toys Co. (P.) Ltd. Vs Shri Toofani Ram & Another, wherein following observations were made:-
"Where the workman is free to leave and join another employer without even a notice, without obtaining a no objection from his employer, the employer cannot be compelled to call such a workman for joining the duties or to conduct an enquiry into the absence of the workman and then terminate his services. Leaving the services of an employer by the workman is a valid mode of his abandonment and there is no illegality attached to a workman leaving the services of his previous employer and joining another employer. If the employer does not consider the abandonment of service or leaving the service by a workman as a misconduct, the law cannot force the employer to consider such abandonment as a misconduct and hold an enquiry. Misconduct of an employee is the one which an employer considers as the misconduct. An enquiry is required to be held only where an employer intends to impose punishment on the employees for an alleged misconduct, if an employer does not intend to impose any punishment on the employee and considers that if the employee has left his service, let it be so, the law cannot compel the employer I.D. No. 1367/2004 24 to hold an enquiry and punish an employee for the misconduct."
27. Reliance is further placed upon the authority State Vs Meena Kumari 1986 RLR 319, wherein our Hon'ble High Court has made the following observations:-
"The trial court while appreciating the evidence must use common sense and ordinary reason before jumping into conclusion about discrepencies (Whether petty or material). Witness may make wrong or confusing statements due to nervousness or lack of understanding and if in accuracy is consequential mountain should not be made of mole hill. Trial judge must look at case as a whole and not find fault with minor details of little or no value."
28. The Meena Kumari's Case (Supra) in not applicable to represent this dispute as it pertains to criminal case and not an industrial dispute. The Diamond Toys Co. (P.) Ltd.'s Case (Supra) is distinguishable on facts and circumstances as in that case the workman was offered employment during the conciliation proceedings which he refused. But in the present case the management did not make any genuine offer to the workman to join duty. Therefore, in the light of my I.D. No. 1367/2004 25 findings on the above issue no.s 2 & 3, the Diamond Toys Co. (P.) Ltd.'s Case (Supra) does not help the management as question of genuine offer of management to workman is not touched upon in that case and this question is very much in issue, here.
29. The termination of services of any workman by the management on any ground whatsoever other than a punitive action or in the excluded categories (a) to (c) of Section 2(oo) of the Act 1947 amounts to retrenchment of the workman as defined in the said provision of law. If the workman had completed one year / 240 days of the continuous service with the management as on the date of termination of his services, then the management is required to comply with the provisions of Section 25F of the Act by payment of the requisite retrenchment compensation besides issuance of one month's notice or one month's notice pay in lieu thereof prior to retrenchment / termination of the service of the workman.
I.D. No. 1367/2004 26
30. In the present case as is established from Ex. WW-1/1 issued by the management to the workman the workman has completed more than 240 days of service or 1 year's continuous service as on 20.6.2003. The plea of the management that the workman himself abandoned the job is implied admission of the management regarding non-compliance of provisions of Section 25-F of the Act rendering termination of the service of workman on 20.6.2003 by management, illegal.
31. The question now arises what relief should be granted to the workman against the management for his illegal termination. In U.P. State Brass ware Corporation Ltd. and others Vs. Uday Narain Pandey (2006) 1 SCC 479 the Apex Court has made the following observations:
"Before adverting to the decision relied upon by the learned counsel for the parties, we may observe that although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realising that an industry I.D. No. 1367/2004 27 may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and /or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched."
32. In Lords Homeopathic Laboratories private Ltd. Vs. Ms. Lissi Unnikunju and others 2006 IV AD (Delhi) 739 (DB) our Hon'ble High Court made the the following observations:
"In a large number of cases, this court has granted compensation instead of reinstatement vide Model School for Mentally Deficient Child Vs. Mukh Ram Prasad Maurya and others 109 (2004) DLT 292, Suraj Pal Singh And others Vs. P.O, Labour Court and another 2002 v. AD (Delhi) 706; Harsha Tractors Ltd. Vs. Secretary (Labour) and others 2001 III AD (Delhi) 746; Sh. Pal Singh Vs. National Thermal Power Corporation Ltd. 2002 111 AD (Delhi) 1059; Sain Steel Products Vs. Naipal Singh and others 2001 LLR 566; R. Mugum and others Vs. The P.O. Labour Court and another 2000 VI AD (Delhi) and State Bank of India Vs. J.R.Surma 2002 VII AD (Delhi) 325.
Whether compensation should be awarded for reinstatement is in the Tribunal's discretion vide United Commerce Bank Ltd. Vs. Secretary, U.P. Bank Employees Union and others AIR 1953 SC I.D. No. 1367/2004 28
437. Various factors have to be seen as to whether reinstatement or compensation should be granted vide The management of Bharat Kala Kendra Vs. R.K. Baveja, 1980 (40) FLR 244 (Delhi).
In Hindustan Steel Ltd. Vs. A.K. Roy, AIR 1970 SC 1401, the Supreme Court observed (vide paragraph
14): - "The Tribunal, however, has the discretion to award compensation instead of reinstatement if the circumstances of a particular case are unusual or exceptional."
This view was followed by a Division Bench of this Court in Jagat Singh Vs. Estate Officer 2002 V AD (Delhi) 713. The same view was taken in Rolston John Vs. CGIT 1995 Supp. (4) SCC 548; DTC Vs. Presiding Officer 2000 LLR 136; Nehru Yuva Kendra Vs. UOI 2000 IV AD (Delhi) 709; A.K. Chakraborty Vs. Saraswadpur Tea Company Ltd. (1982) 2 SCC 328 etc. In Employers, Management of Central P&D Inst. Ltd. Vs. UOI, AIR 2005 SC 633, the Supreme Court observed that it is not always mandatory to order reinstatement after holding the termination illegal and instead compensation can be granted. The same view was taken by a Division Bench of Delhi High Court in Pramod Kumar Vs. Presiding Officer, 123 (2005) DLT 509"
33. In the present case the management's case is that since December 2004 it has discontinued the sales activities of STD and PCO I.D. No. 1367/2004 29 machines and at present the management is engaged in Eureka Forbes Water Purifier and the services of the applicant has become redundant at present. The pleadings and evidence of the parties and the facts and circumstances of the case show that there is complete lack of faith between the parties to the present industrial dispute. Therefore, relief of reinstatement to the job will not be an appropriate relief in the given facts and circumstances of the case. Such a relief would not be of any fruitful purpose owing to lack of faith between the parties, which is of utmost importance in the industry for a useful and productive purpose.
Keeping in view the nature of job of the workman and his wages and over all facts and circumstances of the case the workman in my view is entitled to a lump sum compensation in the sum of Rs. 1 lac from the management in lieu of reinstatement to the job and back wages. In case the said amount is not paid within 2 months of publication of award, the workman shall be entitled to recover the same alongwith simple interest @ 9% p.a, from the date of the award till its realisation.
The issue no.4 is also decided accordingly in favour of workman and against the management.I.D. No. 1367/2004 30
34. In view of my findings on the above issues the workman is entitled to a lump sum compensation in the sum of Rs. 1 lac from the management in lieu of reinstatement to the job and back wages.. In case the said amount is not paid within 2 months of publication of award, the workman shall be entitled to recover the same alongwith simple interest @ 9% p.a, from the date of the award till its realisation.
The reference is answered accordingly. The copies of the award be sent to learned Secretary (Labour), Government of National Capital Territory of Delhi. The award be also sent to the server (www.delhicourts.nic.in). The file be consigned to the record room.
ANNOUNCED IN THE OPEN COURT ON THIS 29TH DAY OF SEPTEMBER,2007.
(S.K.SARVARIA) PRESIDING OFFICER LABOUR COURT NO.XII, KARKARDOOMA COURTS, DELHI.I.D. No. 1367/2004