Delhi District Court
Sh. Digember Singh Rana vs M/S. Auto Link Enterprises (India) Pvt. ... on 2 July, 2022
IN THE COURT OF GORAKH NATH PANDEY,
ADDL. DISTRICT & SESSIONS JUDGE,
PRESIDING OFFICER : LABOUR COURT - IV,
ROUSE AVENUE COURTS : NEW DELHI.
LIR No.1208/2017
CNR No.DLCT130053162017
IN THE MATTER OF:-
Sh. Digember Singh Rana,
S/o Sh. Sardar Singh Rana,
R/o C-174, Sangam Vihar,
New Delhi-110062.
...... Workman/Claimant
Versus
M/s. Auto Link Enterprises (India) Pvt. Ltd.,
Baba Potteries Compound,
Opp. Sahara Restaurant, Aruna Asaf Ali Marg,
Vasant Kunj, New Delhi-110070.
....... Management
Date of institution of the case : 29.03.2017
Date of final arguments : 19.05.2022
Date of passing the Award : 02.07.2022
Decision : Award Passed.
AWARD
1. A common reference vide
no.F.24(152)/13/SWD/Lab./6681-6684 dated 02.08.2013, u/s
10(1)(C) and 12 (5) of The Industrial Disputes Act, 1947, was
received from the Dy. Labour Commissioner, (South West), Govt
of NCT of Delhi about an Industrial Dispute in respect of Sh.
Mohan Singh Kandari, S/o Sh. Bhagat Singh and 39 other
workmen and M/s. Auto Link Enterprises (India) Pvt. Ltd.
The management has settled the dispute with some
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of the workmen whereas, the reference in regard to 12 workmen
i.e. Inderjeet Singh, Digamber Singh, Sanjay Singh, Vishal
Bhalla, Ratan Kumar, Deepak Kumar, Deep Prakash, Manish
Kumar, Rajinder Singh Bisht, Vinod Tanwar, Nathi Ram and
Deepak Pokhariyal is pending in this court.
Vide this 'Award' the industrial dispute in respect of
claimant/workman Sh. Digember Singh Rana shall be examined
and disposed off.
2. Notice of the statement of claim was issued to the
workmen. After filing the common statement of claim by the
workmen, the files were segregated. The workman/claimant
herein in the statement of claim claimed that he has been working
with the management continuously from 1st January, 2000 at the
post of Technician and his last drawn salary was Rs.12,000/- per
month; the management terminated his services illegally,
unlawfully and without any notice on 19.04.2013. It is further
claimed that the management was/is an authorized repair and
Service Centre of TATA and Fiat vehicles and was having a
workshop at Bawa Properties Compound, Opposite Sahara
Restaurant, Arun Asaf Ali Marg, Vasant Kunj, New Delhi and
was working in the name and style of "Autolink Enterprises
(India) Pvt. Ltd". Further, the management before shifting to the
premises mentioned above was earlier carrying out its business at
Chirag Delhi and subsequently shifted to Vasant Kunj, New
Delhi in the year 1996-1997 and before taking the dealership of
Tata Motors in the year 2001, the management was carrying out
its business in the name and style "Autolink Daewoo Motors".
The workman contended that he performed his duty
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diligently and honestly to the entire satisfaction of management
and did not give any chance of complaint to the management.
It is alleged by the workman that the management
has been indulged in anti labour practice from the very beginning
and had also violated the various rules and regulations of the
Industrial Legislatures and thereby the management had never
paid the wages to the workman as per the Minimum Wages Act
as applicable in Govt. of NCT of Delhi and the management had
intentionally deprived the workman from legal facilities under
the Industrial Legislatures.
The workman further contended that the
management has suddenly closed the function of the
workshop/company on 20.04.2013 without any notice/intimation
to him and he was not allowed to enter into the premises of the
company for his duties. Aggrieved therefrom, the workman and
his co-workman filed the complaint dated 26.04.2013 before the
Labour Commissioner for taking appropriate legal action against
the management for their illegal acts and conduct and for the
reinstatement/compensation/wages/pending allowances etc. of
the workmen with the management company. Pursuant thereto,
the case of the workmen was assigned to Labour Inspector. On
the direction of the Labour Inspector, the management had paid
dues for the month of April, 2013 to some of the workmen on
23.05.13 and to the remaining workmen on 30.05.13 but failed to
respond to the reinstatement of the services of the workmen.
The workman claims to be unemployed from the
date of his illegal termination. It is prayed that an award be
passed in favour of workman and against management directing
the management to reinstate him with consequential benefits
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including full back wages and continuity in service etc.
3. Notice of the statement of claim was issued to the
management. Management appeared and filed written statement
contended that due to continuous losses and deteriorating
financial position and the place having become totally unviable,
the management decided to shift the work and all the personnel at
the Vasant Kunj workshop to the Gurgaon workshop; due to the
shifting of the workshop at Vasant Kunj, the services of all the
employees were also shifted to the Gurgaon workshop and the
workmen were duly informed vide notice dated 01.04.2013 in
this regard to report for work in Gurgaon on 22.04.2013 but the
workman refused to report for work to the workshop at Gurgaon
and has voluntarily abandoned the services of the management;
the management vide notice dated 24.04.2013 also informed the
shifting of the workshop from Vasant Kunj to Gurgaon to the
Labour Department. The management denied that the workman
continuously rendered his services till 19th April, 2013 or that his
services have been terminated illegally, unlawfully and without
any notice. The management denied all the other averments made
in the statement of claim and prayed to dismiss the claim petition.
4. The workman filed rejoinder to the written statement
of the management whereby retreating and reaffirming the
contents of his statement of claim.
5. Vide order dated 19.05.2022, the following issues
were framed in view of pleadings of the parties:-
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ISSUES:
(1) In terms of reference ("Whether Sh. Mohan Singh
Kandari S/o Sh. Bhagat Singh & 39 others whose details are
given in Annexure 'A' are absenting from their duty by not
reporting for duty at the transferred place or their services have
been terminated in the garb of transfer 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) Relief.
The case was, thereafter, fixed for evidence of
workman.
6. In order to discharge the onus and prove the issue,
the claimant had appeared as witness and filed in evidence, his
examination in chief by way of affidavit Ex.WW1/A wherein he
had reiterated the contents of his statement of claim on solemn
affirmation. Besides this, he had also placed on record the
documents Ex.WW1/1 (Colly) i.e. copies of identity card and PF
slip; and Ex.WW1/2 i.e. copy of reference.
7. In rebuttal, management had examined Sh. Ashwani
Kumar Agnimitra as MW1 who filed his affidavit by way of
evidence as Ex.MW1/A, reiterating the factual contents of the
written statement of management on solemn affirmation. MW1
has also placed on record the documents Ex.MW1/1 to
Ex.MW1/8 i.e. Board Resolution (Ex.MW1/1); copy of relevant
pages of Annual Report 2012-2013 of Tata Motors (Ex.MW1/2);
copy of news published in some of the electronic media to show
decreasing the market share of Tata Motors (Ex.MW1/3 (Colly);
copy of letter dated 24.04.2013 written by the management to the
Labour Commissioner (Ex.MW1/4); copy of cash vouchers and a
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relevant chart showing the payment received by the claimant
(Ex.MW1/5 (Colly)); Letter dated 30.05.13 sent to the claimant
alongwith dispatch receipt (Ex.MW1/6); copy of intimation dated
30.05.2013 given to the Deputy Commissioner (Ex.MW1/7) and
copy of the accounting reports of the management for the year
ending 31st March, 2014 (Ex.MW1/8).
8. Management also summoned the witnesses i.e.
MW2 Sh. R. D. Verma, Public Relation Inspector, Post Office
Chankyapuri, New Delhi and MW3 Sh. Daulat Ram Meena, Jr.
Assistant from the office of Deputy Labour Commissioner, South
West, Hari Nagar, Delhi who deposed as under:-
MW2: I am a summoned witness. The summoned record
pertaining to the Post Office Hauz Khas and Vasant Kunj i.e. the
details of postal receipts pertaining to the posts/envelops
submitted by the management on 31.05.2013 alongwith daily
entry register records has already been weeded out. The
certificate issued by Sub-Post Master (HSG-1), Vasant Kunj,
Post Office and Post Master (HSG-1) (NFG), Hauz Khas are
exhibited as Ex.MW2/1 and Ex.MW2/2 respectively.
MW3: I am a summoned witness. I have brought the summoned
record pertaining to the Conciliation Proceedings conducted in
the present reference by the Deputy Labour Commissioner, Hari
Nagar, Delhi. Photocopy of the record is Ex.MW3/1 (Colly)
(OSR). Application/intimation filed by the management on
30.05.13 in respect of non reporting of the workman is Mark A.
The management's evidence was closed on 11.03.22.
9. I have heard the final arguments addressed by the
AR for the parties. I have also gone through the written
submissions filed on behalf of the workman. I have also gone
through the materials lying on record. The AR for the
management has also relied upon the citation titled Biddle
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Sawyer Ltd. v. Chemical Employees Union & Ors., 2007 (3)
Bombay CR 586 in support of his contentions. My issue-wise
findings are as under:
Issues No.1
(1) In terms of reference ("Whether Sh. Mohan Singh
Kandari S/o Sh. Bhagat Singh & 39 others whose details are
given in Annexure 'A' are absenting from their duty by not
reporting for duty at the transferred place or their services have
been terminated in the garb of transfer illegally and/or
unjustifiably by the management and if so, to what relief are they
entitled and what directions are necessary in this respect?")
10. The statement of claim filed by the workman along-
with defence of management has been mentioned at the outset.
The workman vide his affidavit Ex.WW1/A deposed that he
worked with the management continuously from 01.01.2000 till
19.04.13 when his service was illegally terminated. He further
deposed that the management has stopped his function at the
workshop on 20.04.13 without any notice/intimation and he was
not allowed to enter into the premises of the management. The
workman has deposed regarding relevant documents in support
of his claim and contentions and prayed for reinstatement of his
services with full back wages, continuity of service etc.
The employment of the workman is not denied in the
written statement filed by the management. The management
further claimed that due to continuous loss, the management
decided to shift the workshop and its employee from the Vasant
Kunj workshop to Gurgaon workshop of the management and
notice dated 01.04.13 was given to all its employees/claimants
herein asking them to report for work in Gurgaon Service Centre
from 22.04.13 onwards. It is further claimed that the management
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shifted the workshop on 20.04.13. It is further noted by the
management that vide notice dated 24.04.13, the Labour
Department/Authority was informed regarding the shifting of the
management at Gurgaon from Vasant Kunj. The claim of the
management remained that the claimant did not report to the
management on 22.04.13 and made false complaint dated
26.04.13; the claim of the workman is false and the claimant is
not entitled for any relief.
The workman in the claim as well as in his affidavit
by way of evidence Ex.WW1/A reiterated his case regarding his
claim and also proved the relevant documents. The
witness/workman was cross-examined by the management at
length but during his cross-examination, the witness reiterated
regarding the contention in the claim as well as affidavit by way
of evidence Ex.WW1/A. The workman categorically deposed
that:
"I was working with the management as a Sr. Technician. I
have an experience of around 13-14 years as a Sr. Technician
with the management".
The witness further denied the suggestion of the
management that he was offered employment at Gurgaon
workshop while deposing that
"It is wrong to suggest that management at the time of
closing down its business activities at Delhi had offered the
alternate job to its employees in Gurgaon".
There is nothing in the cross-examination of the
workman to controvert his contentions at all and the testimony of
the workman/witness in one way or the other remained
unimpeached/uncontroverted. The case of the management
remained that the unit of the management was not closed rather
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the claimant was transferred at other unit but did not report for
duty at Gurgaon. The management examined MW1 who deposed
that vide notice dated 01.04.13, the management informed the
claimant regarding the shifting of office at Gurgaon and asked to
report from 22.04.2013 onwards; the unit was shifted on 20.04.13
and vide notice dated 24.04.13, the Labour Department/Authority
was informed regarding the transfer of its business w.e.f.
22.04.13. The notice dated 24.04.13 to the Labour
Department/Authority is exhibited as Ex.MW1/4. Admittedly, the
management has not placed on record any notice dated 01.04.13
whereby it is claimed that the workman was informed that the
management decided to shift the work and he has to report at
Gurgaon from 22.04.13 onwards. The receipt of any such letter or
transfer order is denied by the workman. The management has
not even annexed the letter dated 01.04.13 with the document
Ex.MW1/4 whereby it is claimed that Labour Authorities were
informed regarding the transfer of the workman at Gurgaon.
Admittedly, the salary/dues of the workman was paid before the
Labour Authorities only after the claim was filed by the workman
before the Appropriate Forum. The non reporting of the workman
was not intimated to the Labour Authorities by the management
in its letter Ex.MW1/4 dated 24.04.13 as the workmen were
supposed to report from 22.04.13 onwards at Gurgaon nor any
action was taken by the management against the workman for
non reporting on duty since 22.04.13 despite the transfer order
and directions. It is reiterated that the dues of the workman was
paid on 23.05.13 before the Labour Authorities and even then
non reporting of the workman on duty was not referred in any
document and only vide Ex.MW1/7 dated 30.05.2013, the
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Labour Authorities were informed regarding non reporting of the
workman on duty. No letter was issued at all to the workman
asking him to join the duties as claimed by the management and
the defence of the management remained to be frivolous. The
claim of the management is further falsified vide Ex.MW3/1 i.e.
conciliation proceedings wherein no reference is found at all
regarding any transfer of the workman or settlement of the
matter.
The testimony of the workman as well as the
management's witnesses corroborates the contention of the
workman and proves his case. In support of the contention, the
management has not filed any letter asking the workman for
joining his duties when he remained absent after the transfer at
the new site (Gurgaon). Admittedly, the management did not
issue any charge sheet or memo/show cause notice to the
workman for non reporting on duty at the transferred place. No
further step by way of enquiry was taken by the management. No
show cause notice etc. was served upon the workman herein.
11. As far as the unauthorized absence of the workman
herein is concerned, The Division Bench of The Hon'ble Delhi
Court in Shakuntala's Export House (P) Ltd Vs. Secretary
(Labour), MANU/DE/0541/2005 has held that abandonment
amounts to misconduct which requires proper inquiry. The
judgment of the Single Judge was upheld by the Division Bench
is reported as 117 (2005) DLT 479. To the same effect is another
judgment in MCD Vs. Begh Raj 117(2005) DLT 438 laying
down that if the workman had abandoned employment, that
would be a ground for holding an enquiry and passing an
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appropriate order and that having not been done, the action of
MCD could not have been sustained.
12. In M/s Fateh Chand vs Presiding Officer Labour
Court & Anr., 2012 LLR 468 Delhi, our own the Hon'ble High
Court observed that the management has to bring on record
sufficient material to show that the employee has abandoned the
service and abandonment cannot be attributed to the employee
without there being sufficient evidence. On failure to report for
duty, the management has to call upon the employee and if he
refuses to report, then an enquiry is required to be ordered
against him and accordingly action taken. In the absence of
anything placed on record by the petitioner management, no
presumption against the respondent can be drawn. It was held to
be a case of violation of Section 25F of the Act.
13. In MCD vs Sukhbir Singh, 1994 ILR 332, in case
of abandonment of service, it was held that the management was
duty bound to conduct an inquiry. Reference in this regard may
also be made to Shakuntala Export House (P) Ltd. vs P.O. Labour
Court X & Anr. 117(2005) DLT 479.
14. In the case of Shiv Dayal Soin and Sons vs,. The
Presiding Officer, Labour Court in LPA 801/2002 decided on
20.12.2007, the Division Bench of the Hon'ble Delhi High Court
has held in para 11 thereof which is as follows:-
"However, it is pertinent to note that a mere accusation that the
Workers had abandoned their jobs is not enough to accept the
said imputation, degree of proof required to establish
abandonment of service, is rather strict and the management in
this case has failed miserably to discharge the said burden of
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proof..."
15. In Shiv Dayal Soin and Sons (supra) also relied
upon in Buckingham and Carnatic Co. vs. Venkatiah AIR 1964
SC 1272 it was observed:
"abandoning or relinquishment of service is always a question
of intention, and normally, such an intention cannot be attributed
to an employee without adequate evidence in that behalf and
thus whether there has been a voluntary abandonment of service
or not is a question of fact which has to be determined in the
light of the surrounding circumstances of each case".
16. Observation of the Hon'ble Supreme Court in the
case of G. T. Lad v. Chemical and Fibres of India Ltd., reported
in (1979) 1 SCC 590 throws great deal of light on this aspect,
The Court noted as under:
"5a. Re Question 1: In the Act, we do not find any definition of
the expression 'abandonment of service.' In the absence of any
clue as to the meaning of the said expression, we have to depend
on meaning assigned to it in the dictionary of English language.
In the unabridged edition of the Random House Dictionary, the
word 'abandon' has been explained as meaning 'to leave
completely and word 'abandon' has been explained as meaning
'to leave completely and finally; forsake utterly; to relinquish,
renounce; to give up all concern in something'. According to the
Dictionary of English Law by Earl Jowitt (1959 Edn.)
'abandonment' means 'relinquishment of an interest of claim'.
According to Black's Law Dictionary 'abandonment' when used
in relation to an office means 'voluntary relinquishment.' It must
be total and under such circumstances as clearly to indicate an
absolute relinquishment. The failure to perform the duties
pertaining to the office must be with actual imputed intention,
on the part of the officer to abandon and relinquish the office.
The intention may be inferred from the acts and conduct of the
party, and is a question of fact. Temporary absence is not
ordinarily sufficient to constitute an 'abandonment of office'."
17. The workman claimed that he joined the
management on 01.01.2000 and his services were terminated on
19.04.2013 without assigning any reason. The workman has
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relied upon the relevant documents referred above in support of
the claim. There is no document on record placed by the
management to show that workman was issued any notice/charge
sheet for non joining his duties or subsequent enquiry was made
against him. Merely bald averments/assertions are not sufficient
to prove the contentions by the management that workman had
abandoned the management.
18. It is reiterated that the workman examined himself as
WW1 and deposed regarding the claim. The witness has also
proved the relevant documents as above said. The documents
relied by the workman alongwith his testimony are not disputed
and his testimony in one way or the other remained
unimpeached. There is nothing in testimony of WW1 during his
cross examination to controvert the claim. The management
admitted the employment of workman. The workman
categorically proved that he worked with the management and
completed 240 days of working in the preceding year of his
termination. As noted, no inquiry has been made by the
management in the matter as well. It is settled that where an
employer has failed to make an enquiry before dismissal or
discharge of a workman, it is open for him to justify the action
before the labour court by leading evidence before it.
19. It is argued by the claimant that no enquiry was
made against him nor any notice/charge sheet was issued by the
management. It is further settled that where an employer has
failed to make an enquiry before dismissal or discharge of a
workman, it is open for him to justify the action before the labour
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court by leading evidence before it. It is relevant to refer the
observations of Hon'ble Supreme Court in Civil Appeal
No.142/2021 titled State of Uttarakahand and Ors. vs. Smt.
Sureshwati decided on 20.01.2021. As held in the relevant para
no.14 -
14. This Court has in a catena of decisions held that where an
employer has failed to make an enquiry before dismissal or
discharge of a workman, it is open for him to justify the action
before the Labour Court by leading evidence before it. The entire
matter would be open before the tribunal, which would have the
jurisdiction to satisfy itself on the evidence adduced by the
parties whether the dismissal or discharge was justified. A four
Judge Bench of this Court in Workmen of the Motipur Sugar
Factory Private Ltd. v. Motipur Sugar Factory (AIR 1965 SC
1803) held that:
" 11. It is now well settled by a number of decisions of this Court
that where an employer has failed to make an enquiry before
dismissing or discharging a workman it is open to him to justify
the action before the tribunal by leading all relevant evidence
before it. In such a case the employer would not have the benefit
which he had in cases where domestic enquiries have been held.
The entire matter would be open before the tribunal which will
have jurisdiction not only to go into the limited questions open to
a tribunal where domestic enquiry has been property held (see
Indian Iron & Steel Co. v. Workmen (AIR 1958 SC 130) but also
to satisfy itself on the facts adduced before it by the employer
whether the dismissal or discharge was justified. We may in this
connection refer to Sana Musa Sugar Works (P) Limited v.
Shobrati Khan (AIR 1959 SC 923), Phulbari Tea Estate v.
Workmen (AIR 1959 SC 1111) and Punjab National Bank
Limited v. Workmen (AIR 1960 SC 160). These three cases were
further considered by this Court in Bharat Sugar Mills Limited
v. Jai Singh (1962) 3 SCR, 684 and reference was also made to
the decision of the Labour Appellate Tribunal in Ram Swarath
Sinha v. Belsund Sugar Co. (1954) LAC 697 . It was pointed out
that "the important effect of omission to hold an enquiry was
merely this: that the tribunal would not have to consider only
whether there was a prima facie case but would decide for itself
on the evidence adduced whether the charges have really been
made out". It is true that three of these cases, except Phulbari Tea
Estate case , were on applications under Section 23 of the
Industrial Disputes Act, 1947. But in principle we see no
difference whether the matter comes before the tribunal for
approval under Section 33 or on a reference under Section 10 of
the Industrial Disputes Act, 1947. In either case if the enquiry is
defective or if no enquiry has been held as required by Standing
Orders, the entire case would be open before the tribunal and the
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employer would have to justify on facts as well that its order of
dismissal or discharge was proper. Phulbari Tea Estate
case was on a reference under Section 10, and the same principle
was applied there also, the only difference being that in that case
there was an inquiry though it was defective. A defective
enquiry in our opinion stands on the same footing as no enquiry
and in either case the tribunal would have jurisdiction to go into
the facts and the employer would have to satisfy the tribunal that
on facts the order of dismissal or discharge was proper."
Subsequently in Delhi Cloth and General Mills Co. v.
Ludh Budh Singh (1972) 1 SCC 595 this Court held that :
"(1) If no domestic enquiry had been held by the management, or
if the management makes it clear that it does not rely upon any
domestic enquiry that may have been held by it, it is entitled to
straightway adduce evidence before the Tribunal justifying its
action. The Tribunal is bound to consider that evidence so
adduced before it, on merits, and give a decision thereon. In such
a case, it is not necessary for the Tribunal to consider the validity
of the domestic enquiry as the employer himself does not rely on
it.
....
(3) When the management relies on the enquiry conducted by it, and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management, are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.
Reliance is also placed on the judgment of this Court in Workmen of Firestone Tyre & Rubber Co. of India (P) Ltd. v. The Management of Firestone Tyre & Rubber Co. of India (P) Ltd and Others. (1973) 1 SCC 813 wherein the broad principle regarding holding of the enquiry were spelt out as:
"32. From those decisions, the following principles broadly emerge:
"(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality. (3) When a proper enquiry has been held by an employer, and LIR No.1208/2017 Sh. Digamber Singh vs. M/s. Autolink Enterprises (India) Pvt. Ltd.Page No.15/23
the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide. (4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct. (9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation. (10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Management of Panitole Tea Estate v. Workmens, (1971) 1 SCC 742 within the judicial decision of a Labour Court or Tribunal. ..........
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Page No.16/2340. Therefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under Section 11-A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case and hold that no misconduct is proved.
41. We are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference under Section 11-A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to re- appraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, Section 11-A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11-A."
It is reiterated that in this case no steps were taken by the management at all.
20. In view of the aforesaid discussions, it cannot be said that the workman abandoned his job by not joining his duty at the other site (Gurgaon) with the management. The management herein has not been able to discharge its onus to show that the workman had abandoned his service on his own by LIR No.1208/2017 Sh. Digamber Singh vs. M/s. Autolink Enterprises (India) Pvt. Ltd.
Page No.17/23not joining at the other site and it is duly proved that the management has terminated the services of the workman illegally and unjustifiably. The citation relied upon by the AR for the management is not applicable in the facts and circumstances of the case. Issue No.1 is decided accordingly in favour of the claimant/workman and against the management.
'Relief'
21. The claimant herein has sought the relief of reinstatement in the service with full back wages along with the continuity of service and all the consequential benefits. The term "reinstatement" has not been elucidated in the Industrial Disputes Act, 1947. The Shorter Oxford English Dictionary, Vol. II, 3rd Edition stated that, the word "reinstate" means to reinstall or reestablish (a person or thing in a place, station, condition etc.); to restore to its proper and original state; to reinstate afresh and the word "reinstatement means the action of reinstating; reestablishment. "As per Black's Law Dictionary, 6th Edition, "reinstatement" means 'to reinstall, to reestablish, to place again in a former state, condition, or office, to restore to a state or position from which the object or person had been removed'.
22. In the case titled as Tapash Kumar Paul Vs BSNL & Anr, and reported as of JT 2014 (7) SC 589, the Hon'ble Supreme Court has held that the court may either award the compensation or order for reinstatement in the cases which do not fall within the five categories as described by the Hon'ble Supreme Court in the aforesaid judgment. The relevant portion of this judgment is reproduced as under :
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"It is no doubt true that a Court may pass an order substituting an order of reinstatement by awarding compensation but the same has to be based on justifiable grounds viz.(i) where the industry is closed; (ii) where the employee has superannuated or going to retire shortly and no period of service is left to his credit; (iii) where the workman has been rendered incapacitated to discharge the duties and cannot be reinstated and/or; (iv) when he has lost confidence of the Management to discharge duties. What is sought to be emphasized is that there may be appropriate case on facts which may justify substituting the order of reinstatement by award of compensation, but that has to be supported by some legal and justifiable reasons indicating why the order of reinstatement should be allowed to be substituted by award of compensation. In the instant matter, we are not satisfied that the appellant's case falls in to any of the categories referred to hereinbefore which would justify compensation in lieu of reinstatement. We thus find no justification for the High Court so as to interfere with the Award passed by the Tribunal which was affirmed even by the single Judge, but the Division Bench thought it appropriate to set aside the order of reinstatement without specifying any reasons whatsoever, as to why it substituted with compensation of a meager amount of Rs.20,000/ to the appellant."
23. Hon'ble Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya and Ors., (2013) 10 SCC 324 discussed the concept of reinstatement as under:
"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money..... The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments." (emphasis supplied).LIR No.1208/2017
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24. It is settled law that reinstatement and back wages are not automatic and it depends upon the facts and circumstances of each case. In Ashok Kumar Sharma Vs Oberoi Flight Services reported as AIR 2010 Supreme Court 502, Hon'ble Supreme Court while relying upon various judgments of the Hon'ble Supreme Court held that compensation in lieu of reinstatement and back wages would be appropriate. The relevant para of judgment is reproduced as under :
"8. In the case of Sita Ram v. Moti Lal Nehru Farmers Training Institute 2(2008 AIR SCW 2256) this Court considered the matter thus :
"2. JT 2008 (3) SC622.
"21. The question, which, however, falls for our consideration is as to whether the Labour Court was justified in awarding reinstatement of the appellants in service.
22. Keeping in view the period during which the services were rendered by the respondent (sic appellants); the fact that the respondent had stopped its operation of bee farming, and the sen/ices of the appellants were terminated in December 1996, we are of the opinion that it is not a fit case where the appellants could have been directed to be reinstated in service.
23. Indisputably, the Industrial Court, exercises a discretionary jurisdiction, but such discretion is required to be exercised judiciously. Relevant factors therefore were required to be taken into consideration; the nature of appointment, the period of appointment, the availability of the job, etc. should weigh with the court for determination of such an issue.
24. This Court in a large number of decisions opined that payment of adequate amount of compensation in place of a direction to be reinstated in service in cases of this nature would subserve the ends of justice. (See Jaipur Development Authority v. Ramsahai [(2006) 11 SCC 684] : (2006 AIR SCW 5963), M.P. Admn. v.
Tribhuban [(2007) 9 SCC 748] : (2007 AIR SCW 2357) and Uttaranchal Forest Development Corpn. v. M.C. Joshi [(2007) 9 SCC 353] : (2007 AIR SCW 7305).LIR No.1208/2017
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25. Having regard to the facts and circumstances of this case, we are of the opinion that payment of a sum of Rs. 1,00,000 to each of the appellants, would meet the ends of justice. This appeal is allowed to the aforementioned extent. In the facts and circumstances of this case, there shall be no order as to costs."
9. The afore-referred two decisions of this Court and few more decisions were considered by us in the case of Jagbir Singh v. Haryana State Agriculture Marketing Board3(2009 AIR SCW 4824) albeit in the context of retrenchment of a daily wager in violation of section 25F of Industrial Disputes Act who had worked for more than 240 days in a year and we observed thus :
3. JT 2009 (9) SCC 396."7.
It is true that earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention to the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice."
It is not necessary to multiply the decisions of this Court wherein award of compensation in lieu of reinstatement and back wages has been held to be adequate and in the interest of justice.
In light of the aforesaid legal position, the view of the High Court that monetary compensation in lieu of reinstatement of the workman would be proper cannot be said to be unjustified."
In case titled as Mohd. Shakir And Sunder Lal Jain Hospital 2010ILLJ245 (Del) High Court of Delhi, it was held that:
"Illegality of dismissal/termination from service of a workman did not in itself ipso facto result in his reinstatement. The long history of litigation and acrimony between the parties leading to trust deficit in this case was considered by the Labour Court and it had LIR No.1208/2017 Sh. Digamber Singh vs. M/s. Autolink Enterprises (India) Pvt. Ltd.Page No.21/23
rightly concluded that reinstatement might not be appropriate remedy will justified award of compensation in lieu of the reinstatement of the workman."
Hon'ble Supreme Court in the matter of 'Rajasthan State Transport Corporation, Jaipur Vs Sri Phool Chand' in Civil Appeal No. 1756/2010 has reiterated that to be entitled for back wages during the pendency of proceedings, the employee should not be employed in any establishment during the pendency of such proceedings. Further if a worker had been employed during the pendency of such proceedings and had been receiving adequate remuneration, no back wages would be payable for the period of such pendency. It was further held that a worker cannot automatically be entitled to back wages and has no right to claim back wages purely on the basis that the dismissal order has been set aside. As held :
"In order to claim back wages, a worker is required to prove (by adducing evidence) that he was not gainfully employed anywhere after dismissal, and had no earnings to maintain himself and / or his family. An employer is required to prove that a worker was gainfully employed elsewhere - however the initial burden lies on the worker to substantiate his unemployment."
Further in 'Deepali Gundu Surwase Vs Kranti Junior Adhyapak Mahavidyalya (D.Ed) & Ors. reported as (2013) in SCC 324, Hon'ble Supreme Court held that in the case of wrongful termination of a worker, reinstatement with continuity of service and back wages was a normal rule. However, the payment of back wages has to be determined as per the facts and circumstances of his case and cannot be automatically granted on a order of reinstatement of the worker. The worker has to specifically raise the claim for back wages as well as present supporting evidence demonstrating his unemployment. This court also set out various factors for calculating the back wages, which include, among others.
(a) the length of service of a worker ;
(b) the nature of misconduct, if any, proved against worker ; and
(c) the financial condition of employer.
25. In the present case, the workman served the LIR No.1208/2017 Sh. Digamber Singh vs. M/s. Autolink Enterprises (India) Pvt. Ltd.
Page No.22/23management for more than 13 years before his illegal termination on 19.04.2013. Since, the parties are litigating for more than 5 years, the relationship of the workman with the management will not be cordial due to the rift and prolonged litigation. Further, the workman may not be considered sitting idle after his termination. Hence, in these circumstances, it would not be in the interest of justice and industrial piece to direct reinstatement and the ends of justice can be met by granting lump sum compensation. Considering the above facts, the statement of claim as filed by the workman is allowed and it is appropriate that management is directed to pay lumpsum compensation of Rs.2,50,000/- (Rs. Two Lacs Fifty Thousand only) as retrenchment compensation in lieu of reinstatement, back wages and all other consequential benefits / dues to the workman.
26. Management is directed to pay the said compensation within 30 days of publication of this award to the workman, failing which, the amount shall also be carrying an interest @ 8% per annum till the date of its realization.
27. Award is passed and reference is answered accordingly qua the workman herein. Digitally signed copy of the award be sent to the Labour Commissioner for publication. The award be also sent to server. File be consigned to the Record Room. GORAKH Digitally signed by GORAKH NATH PANDEY NATH Date: 2022.07.07 PANDEY 14:28:57 +0530 Announced in the open (Gorakh Nath Pandey), Court on 02.07.2022 Addl. District & Sessions Judge/ Presiding Officer Labour Court- IV, Rouse Avenue District Courts.
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