Delhi District Court
Om Parkash vs Mohan Overseas P.Ltd on 23 April, 2025
IN THE COURT OF SHRI ARUN GOEL,
DISTRICT JUDGE: POLC - X
ROUSE AVENUE COURTS : NEW DELHI
LIR No. 6652/16
Sh. Om Prakash,
S/o Sh. Viri Singh,
R/o A-2, Shiv Durga Vihar,
Lakadpur, Faridabad,
Haryana
Through
General Mazdoor Trade Union,
Opp. Old Labour Office,
Giri Nagar,
Kalkaji, New Delhi-19
...... WORKMAN
versus
M/s. Mohan Overseas Pvt. Ltd.,
D-171, Okhla Industrial Area,
Phase-1, New Delhi-110020
....... MANAGEMENT
Date of institution of the case : 10.12.2015
Date of passing the Award : 23.04.2024
A W A R D:
1.A reference No. F.24(501)/Lab/SD/2015/18347, dated 24.07.2015 was received from appropriate government for adjudication and disposal of industrial dispute between the aforesaid claimant and the management by formulating the following terms of reference :
LIR No. 6652/16 Page 1/16"Whether the services of Sh. Om Parkash Slo Sh.Viri Singh have been terminated illegally and/or unjustifiably by the management, and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. A notice of the aforesaid reference was sent to the workman for filing of his statement of claim. On 10.12.2015, AR for the workman appeared and filed statement of claim, wherein it is stated that the workman was working with the management since 19.04.2014 as a 'Sample Tailor' and his last drawn salary was Rs.10,480/- per month. During the course of employment, workman was working with diligence, sincerity and honesty and he never gave any chance of complaint to management. Thus, the service record of workman was uninterrupted, meritorious and unblemished.
3. It is further stated that management had not been providing legal facilities to the workman during his service tenure such as appointment letter, ID card, weekly and festival leave, bonus etc. The management was also taking overtime work from the workman but was not paying any overtime wages.
4. It is further stated in the claim that when the workman demanded his legal facilities and due salary, the management got annoyed and started harassing him and stopped giving his earned salary from 01.04.2015 to 25.04.2015 and also terminated the workman from the LIR No. 6652/16 Page 2/16 job illegally on 25.04.2015 without giving any notice or charge sheet. It is stated that this is the anti-labor policy of the management, which the workman opposes.
5. It is further stated in the claim that the workman made a complaint to the Labour Department regarding his illegal dismissal from the job. On the basis of this complaint the managers of the management were called to the Labour Office, however, they did not appear before the Labour Inspector and the workman's due salary was not paid nor was reinstated to his job.
6. Thereafter, workman had sent a demand letter by speed post on 05.05.2015 demanding reinstatement and payment of back wages which was received by the management but they did not pay the due wages nor reinstated him to the job.
7. Being aggrieved, the workman filed his statement of claim before Conciliation Officer, who had sent a notice to the management for appearance, however, none has appeared on behalf of the management, therefore no compromise could be reached there. Thereafter, on the comments of the Labour Conciliation Officer, the Labour Department issued its reference and forwarded the dispute to the Labour Court for adjudication.
LIR No. 6652/16 Page 3/168. It is further stated that the workman was unemployed since the date of his illegal termination and despite efforts he did not get employment anywhere and prayed that the Management be directed to reinstate him to services with full back wages and consequential benefits.
9. Notice of the claim was issued to the management for filing of written statement. Written statement has been filed on behalf of the management wherein it is stated that the management has not terminated the services of the workman but the workman left his services on his own by taking full and final settlement from the management on 25.04.2015. As there is no cause of action, the present claim petition is liable to be dismissed.
10. It is denied in the written statement that the workman used to perform his duties as per the expectation of the management and also denied that the workman wages were Rs10,480/-. It is stated that the performance of workman was very poor and the wages were Rs. 10,375/-. It is further denied that the management has not provided legal benefits such as appointment letter, attendance care, leave book, yearly increment, casual leave, earned leave etc. and further denied that the management has illegally terminated the services of workman.
11. It is further denied that the management has never received any LIR No. 6652/16 Page 4/16 notice from Labour Office or that the management has been served with any demand notice on dated 05.05.2015. It is stated that the workman has left his services on his own will and need without any pressure, coercion and threat.
12. In the written statement the management has denied all the remaining contentions made by the workman in his statement of claim and prayed that the present claim is liable to be dismissed.
13. Rejoinder to the written statement filed on behalf of the workman wherein he reiterated and reaffirmed the contentions as mentioned in his statement of claim and denied all the contentions mentioned in the WS filed on behalf of the management.
14. On completion of pleadings of the parties, following issues were settled on 12.07.2017:
"1) Whether the workman has abandoned his duties as alleged by the management in its written statement?
OPM
2) Whether the services of the workman have been terminated illegally and/or unjustifiably by the management on 25.04.2015? OPW
3) Relief."
15. Thereafter, matter was listed for workman evidence. On 06.04.2021 LIR No. 6652/16 Page 5/16 WW-1 Om Prakash has tendered his affidavit Ex.WW1/A and relied upon the following documents: (i) Demand Letter dated 05.05.2015 i.e., Ex.WW1/1, (ii) Speed Post Receipts i.e., Ex.WW1/2, (iii) Complaint dated 06.05.2014 lodged with Labour Commissioner Ex.WW1/3 and
(iv) Claim filed before the Conciliation Authority. He was cross examined at length by Sh. Pinaki Ranjan Chatterjee, AR for the management. Thereafter, vide separate statement of Sh. R.S.Kaushik, AR for the workman, workman evidence was closed and the matter was listed for management evidence.
16. In defence, management has produced Sh. Mohan Singh Rawat as MW-1. He tendered his evidence by way of affidavit Ex.MW1/A and relied upon the following documents: (i) Board Resolution dated 20.03.2018 i.e. Ex.DW-1/1, (ii) Copy of Full & Final Settlement dated 07.05.2015 i.e. Ex.DW-1/2 (original seen and returned), (iii) Appointment Letter dated 19.04.2014 i.e. Ex.DW-1/3. (The same has already been exhibited as Ex.WW-1/MX-1.) (iv) Copy of ESIC Challans for February 2015, March 2015 and April 2015 i.e. Ex.DW-1/4A (original seen and returned), Ex.DW-1/4B (original seen and returned) and Ex.DW-1/4C (original seen and returned), (v) Copy of EPF Challans i.e. Mark DW-1/Z-1 (colly.) (consisting of 14 pages). There is no Ex.DW-1/5, (vi) Copy of Salary Register of Workman for the month of April 2015, March 2015, February 2015 and January 2015 i.e. Ex.DW-1/6 (colly.) (consisting of 04 pages) (original seen and LIR No. 6652/16 Page 6/16 returned) and (vii) Copy of Complaints dated 20.03.2015, 18.12.2014, 05.12.2014 and 06.10.2014 i.e. Ex.DW-1/7 (colly.) (original seen and returned). He was cross examined at length by Sh. R. S. Kaushik, AR for the workman.
17. Management has further produced Sh. Surender Kumar as MW-2.
He was also cross examined by Sh. R.S. Kaushik, AR for the workman and Sh. Atul Malik, UDC as MW-3. He brought summoned record i.e., ESIC details of the workman which included E-Pehchan Card, Nominee details, benefit availed from ESIC, employers contribution from December, 2012 till June, 2024 which was exhibited as Ex.MW3/1 (colly). Thereafter, vide separate statement of AR for the management, management evidence was closed and the matter was adjourned for final arguments.
18. Arguments heard from both the parties. AR for the workman has relied upon the following judgements:
(i) Jayantibhai Raojibhai Patel vs. Municipal Council, Narkhed and Ors reported as (2019) 17 SCC 184.
(ii) MCD vs. Vijay Pal and Ors reported as 140(2007)DLT351 Record perused.
19. Now, in the light of evidence available on record and submissions LIR No. 6652/16 Page 7/16 made by both the parties, my issue wise findings are as under: -
ISSUES NO. 1 AND 2:
20. The case of the workman is that he was working with the management since 19.04.2014 as a "Sample Tailor" with monthly salary of Rs.10,480/- The workman was doing his work diligently, however, management was not providing legal facilities like appointment letter, Identity card, leaves, holidays, overtime, bonus, leave book etc. When the workman demanded these facilities from the management they illegally terminated his services w.e.f. 25.04.2015 without complying with the provisions of I.D. Act. The management has filed two pages written statement wherein it is stated on behalf of the management that the workman has himself left the job after taking full and final settlement on 25.04.2015. Hence, the relationship has not been denied between the parties. Thus, the management in the present case has taken the defence of abandonment.
21. The law regarding the abandonment of services by an employee and how it is to be inferred is explained by Hon'ble Supreme Court in case titled as G.T. Lad v. Chemical and Fibres of India Ltd., (1979) 1 SCC 590 wherein Court observed as follows.
"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 LIR No. 6652/16 Page 8/16 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 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 or 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 or 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".
6. From the connotations reproduced above it clearly follows that to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same. In Buckingham & Carnatic Co. v. Venkatiah [AIR 1964 SC 1272 : (1964) 4 SCR 265 : (1963) 2 LLJ 638 : (1963-64) 25 FJR 25] it was observed by this Court that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to a employee without adequate evidence in that behalf. Thus, whether there LIR No. 6652/16 Page 9/16 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.
22. Thus, there was nothing in the surrounding circumstances or the conduct of the appellants indicating or suggesting an intention on their part to abandon service which in view of the ratio of Gopal Chandra Misra case [Union of India v. Gopal Chandra Misra, (1978) 2 SCC 301 : 1978 SCC (L&S) 303], can be legitimately said to mean to detach, unfasten, undo or untie the binding knot or link which holds one to the office and the obligations and privileges that go with it. Their absence from duty was purely temporary and could, by no stretch of imagination, be construed as voluntary abandonment by them of the Company's service. In Express Newspapers (P) Limited v. Michael Mark [AIR 1963 SC 1141 : (1963) 3 SCR 405 : (1962) 2 LLJ 220 : 22 FJR 346] , which is on all fours with the present case, it was held that if the employees absent themselves from the work because of strike in enforcement of their demands, there can be no question of abandonment of employment by them. In the present case also the appellants' absence from duty was because of their peaceful strike to enforce their demand. Accordingly, we are of the view that there was no abandonment of service on the part of the appellants."
23. As the management has taken the defence of abandonment, the onus LIR No. 6652/16 Page 10/16 was upon them to prove this fact. The management had examined their witness MW-1 Sh. Mohan Singh Rawat, who was cross examined by AR for the workman about the fact that the workman had abandoned his job. The relevant para of the cross examination is reproduced as below:
"Q. You have mentioned in Para No.12 of your affidavit of evidence, the word "AWOLed". What does this word mean? A. This is the third form of word "awol" which means "left/disappear without intimation".
The management had not given any notice to workman to join duty (Vol. The management had come to know that he had joined job somewhere else). It is correct that we have not mentioned in Written Statement or in my affidavit of evidence that the workman had joined job somewhere else."
24. Perusal of the cross examination of the witness reveals that the management has not given any notice to the workman to join his duties in fact management has stated in their written statement that the workman had taken full and final settlement from the management. Infact that management in the cross examination of workman dated 28.02.2025 had given following suggestions to the workman:
It is incorrect to suggest that I was called by the management on 07.05.2015 for settlement of account or that the management had offered me Rs.21,740/- towards full and final settlement of my account."
25. Perusal of the suggestions given on behalf of the management clearly reveals that the management has offered full and final settlement LIR No. 6652/16 Page 11/16 to the workman, however, full and final settlement has not been accepted by the workman. Thus, the management has disclosed false facts in their written statement that the workman has left the job of the management after taking full and final settlement from them. During arguments, it was also argued by Ld. AR for the management that the workman was not diligent in performing his duties. However, during cross examination, the witness from the management admitted that the management had not given any written notice/memo to the workman regarding misconduct or have conducted any departmental inquiry.
Moreover, perusal of the written statement of the management reveals that they have not taken the defence that services of the workman have been terminated as a punishment. The workman has sent demand notice to the management and filed a case before the conciliation officer and also filed the present LIR which clearly shows that he never had the intention of abandoning his job or to end the relationship of employer and employee between the parties.
26. On the other hand, management neither in their written statement nor in conciliation proceedings ever offered the workman to rejoin his duties. Thus, the management has failed to show that the workman has abandoned his job. The workman on oath has stated that his job has been terminated on the other hand, the management has not filed on record any document to show that they have complied with Section 25F of the I.D. Act before terminating the services of the workman.
LIR No. 6652/16 Page 12/16Accordingly, both these issues are decided in favour of the workman.
RELIEF:
27. The workman in this case has prayed for reinstatement and back wages with all consequential benefits. It was argued during final arguments that the workman was drawing salary of Rs.10,480/- per month at the time of termination of employment. The period for which the workman had worked with the management was less than one and half years more over management has filed on record ESI documents which clearly show that workman is employed some where else. The judgement Jayantibhai (supra) relied upon by Ld. AR for the workman is not applicable to the facts of the present case as in the said case the proceedings were against the Government Department herein the proceedings are against private entity more over in the said case the workman was employed for more than 8 years while herein the workman only worked for a period of one and half years with the management. As regards the back wages, the law is settled by the Hon'ble Supreme Court of India in case of UP State Brassware Corporation Ltd. vs. Uday Narain Pandey, JT 2005 (10) SC 344, wherein it has been held :
"The Industrial Courts while adjudicating on disputes between the management and the workman, therefore, LIR No. 6652/16 Page 13/16 must taken such decisions which would be in consonance with the purpose the law seeks to achieve. When justice is the buzzword in the matter of adjudication under the Industrial disputes act, it would be wholly improper on the part of the superior Courts to make them apply the cold letter of the statutes to act mechanically. Rendition of justice would bring within its purview giving a person what is due to him and not what can be given to him in law. A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance. The Court, therefore, emphasised that while granting relief, application of the mind on the part of the Industrial Court is imperative. payment of full back wages, therefore, cannot be the natural consequence."
28. The above noted observations have been reiterated in the case of Sita Ram Vs Motilal Nehru Farmers' Training Institute, JT 2008 (3) SC 644 ; Jagbir Singh Vs. Haryana State Agricultural Marketing Board, JT 2009 (9) SCC 396 and Ashok Kumar Sharma Vs. Oberoi Flight Services, 2009 XI AD (SC) 401.
29. The Hon'ble High Court of Delhi in the case of Management of Asiatic Airconditioning and Refrigeration Pvt. Ltd. vs. POLCX and Ors. reported in 2005ILLJ 79 has laid down a list of illustrative factors for determination of compensation in lieu of back wages.
LIR No. 6652/16 Page 14/1630. While dealing with the relief of reinstatement. In case of Surender Kumar Verma Vs. Central Government Industrial TribunalcumLabour Court, New Delhi (supra), (1980) 4 SCC 443, it has been further observed as under :
"Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been, and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums; the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the court to make appropriate consequential orders. The court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not, comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted.
31. In view of the above stated facts and law, the court is of the considered opinion that reinstatement of the workman could not be LIR No. 6652/16 Page 15/16 justified as the period for which the workman had worked with the management less than one and half year. The justice would be served by granting him lump-sum compensation instead of reinstatement. Taking into account, the period of the services of the workman, the nature of duties performed by him and other surrounding circumstances, an award of Rs.50,000/- granted in favour of the workman and against the management which includes the cost of litigation.
32. The management is directed to pay the said amount of award within a period of one month from the date of publication of award failing which the management shall be liable to pay an interest of 9% per annum from the date, it becomes due and till realization order accordingly.
33. In view of the above, the claim of the workman is disposed of. The present reference stands answered accordingly. A copy of the award be sent to the appropriate Government for its publications as per rules.
34. File be consigned to record room.
Digitally signedARUN by ARUN GOEL Date: Announced in open court GOEL 2025.04.23 15:17:58 +0530 on Dated: 23.04.2025 (Arun Goel) District Judge, POLC - X Rouse Avenue Courts New Delhi: 23.04.2025 LIR No. 6652/16 Page 16/16