Delhi District Court
Sh. Sandeep Yadav vs M/S A.D.S Advertising Private Ltd on 1 September, 2007
ID No. 359/2005
1
IN THE COURT OF SH. S.K. SARVARIA
PRESIDING OFFICER, LABOUR COURT NO. XII
ID No. 359/2005
DISPUTE BETWEEN
Sh. Sandeep Yadav,
S/o Sh. Satya Pal Singh,
C/o Kamgar Madadgar Union,
B - 58/45, Rama Road,
New Delhi - 110015. ...............WORKMAN
AND
M/s A.D.S Advertising Private Ltd.,
B 283, Okhla Industrial Area,
Phase - I, New Delhi - 110020. .........MANAGEMENT
Date of institution:08.11.2005
Date of argument:25.08.2007
Date of award:01.09.2007
AWARD
1.The Industrial Dispute between the management of M/s A.D.S ID No. 359/2005 2 Advertising Private Ltd., B 283, Okhla Industrial Area, Phase - I, New Delhi - 110020 and its workman Sh. Sandeep Yadav, S/o Sh. Satya Pal Singh, C/o Kamgar Madadgar Union, B - 58/45, Rama Road, New Delhi
- 110015 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 (1221) / 2005/Lab dated 14.10.2005 with the following terms of reference :
"Whether Sh. Sandeep Yadav, S/o Sh. Satya Pal Singh has abandoned his job on his own or his services have been terminated illegally and / or unjustifiably by the management, and if so to what sum of money as monetary relief along with the other consequential benefits is he entitled and what directions are necessary in this respect?"
2. The notice of the reference was issued to the workman who filed statement of claim alleging that he was employed with the management as helper with effect from 5/1/2003 and his last drawn wages were Rs 3000/-- per month. The management did not provide to him and other workmen legal facilities of ESI, PF, appointment letter, identity card, ID No. 359/2005 3 Festival leave , attendance card. When the workman demanded legal facilities the management illegally terminated his services with effect from 14/5/2004 without giving his earned wages for the months of March and April 2005.
3. No chargesheet, show cause notice, warning letter was given to the claimant by the management at the time of termination of his services. The workman served a demand notice through union upon the management but the management did not reply the demand notice dated 11/6/2004 and also did not appear before conciliation proceedings leading to its failure. The workman is unemployed from the date of termination of his services.
4. The workman has prayed for reinstatement to the job with continuity of service and full back wages by award of this Labour Court.
5. The management contested the claim and filed written statement denying the existence of relationship of workman and employer between the parties and stated that the applicant was not an employee of the ID No. 359/2005 4 management so there was no question of giving legal facilities like appointment letter, festival leave, attendance card etc to the workman. Due to denial of existence of relationship of employer and employee between the parties the management has denied the other facts stated in the statement of claim and has prayed for its dismissal.
6. The controversies between the parties in the pleadings resulted in the framing of the following issues by this tribunal on 11/7/2006: -- ISSUES
1. Whether the workman was employed with the management as alleged in Para No.1of the statement of claim? OPW
2. To what relief, if any, is the workman entitled from the management in terms of reference? OPW
7. In support of his case the workman WW1 has filed his affidavit in evidence. He was cross-examined before the local commissioner appointed by this tribunal. The workman has also examined WW2 Shri V . K. Singh, Labour Officer before learned local commissioners and ID No. 359/2005 5 closed his evidence. The management has examined only one witness namely MW1 Shri Rajiv Vats and filed his affidavit in evidence. He was cross-examined on behalf of the workman before the learned local commissioner after which, the management also closed its evidence.
8. I have heard the learned authorised representatives of the parties and have gone through the record of the case and relevant provisions of law, carefully. My findings on the issues framed are as under: --
9. Issue No.1 The workman has alleged that he was employed with the management as helper since 5/1/2003 and his last drawn wages were Rs. 3000/-- per month. The management has denied the existence of relationship of workman employer between the parties.
10. The burden to prove the existence of relationship of workman and employer between the parties lies on the workman. The workman has produced WW2 Shri V . K. Singh, Labour Officer who has proved the ID No. 359/2005 6 conciliation proceedings as Exhibit WW2/1 to show that one 16/9/2004, before conciliation officer, the management paid wages to the workman for the months of April and May 2004 amounting to Rs 4065/-- and the management was ready to take the workman on duty and the workman was ready to join duty. Further, the letter dated 15/9/2004 Ex WW2/3 is also proved by WW.2 and shows that the management has intimated the Assistant Labour Commissioner that the workman has stopped coming to the duty and the management was awaiting the workman to resume his services. Therefore, these two documents prove the existence of relationship of workman and employer between the parties. The management through its witness MW1 has also proved the voucher Ex MW1/A prepared in the name of the workman and also salary of Rs 4065/-- paid to him by Ex MW1/A. Therefore, the inevitable conclusion is that there existed relationship of workman and employer between the parties. The issue is accordingly decided in favour of the workman against the management.
11. Issue No.2 The thrust of the argument of the management is that the workman ID No. 359/2005 7 has failed to prove that he worked for 240 days or more the management. At the most he was a daily wager so his services cannot be regularised. Reliance is placed upon the authority Gangadhar Pillai vs. M./S. Siemens Ltd, 2007 Lab. I. C. 590, S. C. wherein the following law was laid down: --
"..................The concept of 240 days in a year was introduced in the industrial law for a definite purpose. Under the Industrial Disputes Act, the concept of 240 days was introduced so as to fasten a statutory liabilities upon the employer to pay compensation to be computed in the manner specified in Section 25F of the Industrial Disputes Act, 1947 before he is retrenched from services and not for any other purpose. In the event a violation of the said provision takes place, termination of services of the employee may be found to be illegal, but only on that account, his services cannot be directed to be regularized. Direction to reinstate the workman would mean that he gets back the same status."
12. Reliance is further placed upon the authority Secretary, State of Karnataka and Others versus Uma Devi, 2006 SCC (L.& S) 753, S. C. wherein it was held that absorption, regularisation, or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees is not permissible despite the long continued service in the ID No. 359/2005 8 public employment.
13. The argument of learned authorized representative of the workman is that the management nowhere in the written statement or before conciliation officer raised the question that the workman was employed for less than 240 days with the management and this plea is taken for the first time at the time of final arguments and so should be rejected. He has argued that the authorities relied on behalf of the management are inapplicable to the present industrial dispute. It is also argued that the witness of management MW1 has even denied what is written in the written statement so the management should be treated as without any defence and without any written statement. It is argued that the workman is entitled to reinstatement to the job with continuity of service and full back wages for the intervening period.
14. I have carefully heard the learned authorised representatives of the parties and have gone through the authorities produced on behalf of management and record of the case carefully. The authorities relied on behalf of the management applies to the public employees working with ID No. 359/2005 9 the government, public sector undertakings or government companies. They cannot be treated on equal footing with the workers working with the private management as they are subject to laws and rules framed by the government. In the Act the terms permanent employee, temporary employee, ad hoc employees etc are not defined. What matters here is whether or not the claimant/workman has worked with the management continuously for one year or in other words 240 days or more in a year preceding termination of his services. In Delhi Cantonment Board VS Central Govt. Industrial Tribunal and Ors. 2006 LLR 835 (Del), it was observed:
"In-service law there is an important difference between the temporary employee and a permanent employee. A permanent employee has a right to the post whereas the temporary employee does not, vide State ofU.P. vs. Kaushal Kishore Shukla, (1991) I SCC 691. However, there is no such distinction in industrial law. It may be noted that the Industrial Disputes Act makes no distinction between a permanent employee and a temporary employee (whether a probationer, casual daily wage, or ad hoc employee)."
15. It was further observed as follows:
"7. A perusal of the above definition shows that there is no distinction in industrial law between a permanent employee and a temporary employee. As long as the person is employed to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for ID No. 359/2005 10 hire or reward, he is a workman under the Industrial Disputes Act; and will get the benefits of that Act.
8. Thus, it has been held in Chief Engineer (Irrigation) Chepauk Madras v. N. Natesan, (1913) If LLJ 446 (447) (Mad.) and in Management of Crompton Engineering Co. (Madras) Private Ltd. v. Presiding Officer, Additional Labour Court (1974) I LLJ 459 (Mad.) that even a , temporary employee falls within the definition of workman. Similarly in Elumalai v. Management of Simplex Concrete Piles (India) Ltd., (1970) II LLJ 454 and Tapan Kumar Jena v. General Manager, Calcutta Telephones, (1981) Lab.I.C. (NOC) 68 (Cal.) (DB) it was held that a casual employee is also a workman. In other words, every person employed in an industry, irrespective of, whether he is temporary, permanent or a probationer is a workman vide Hutchiali v. Karnataka State Road Transport Corporation, (1983) I LLJ 30(37) (Kant.) (DB), provided he is doing the kind of work mentioned in Section 2(s)."
16. Uma Devi 's case (supra) is, therefore, distinguishable on facts and does not help the management here. Gangadhar Pillai's case (supra) is also distinguishable on facts and is of no help to the management as in that case the workman was employed on contractual basis and the provisions of Section 2 (00) (bb) of the Act were applicable there. Here, what to talk of fixed term employment of the workman on contractual basis, the management has even denied the relationship of workman and employer between the parties.
17. It is true that it is the duty of the workman to prove on record that he ID No. 359/2005 11 has worked for one year continuously or 240 days or more preceding date of termination of his services. The workman has alleged so in a statement of claim by alleging that he was working with the management since 5/1/2003 and his services were terminated on 14/5/2004. In a case where the management has denied the existence of relationship of workman and employer between the parties in an industrial dispute and the plea of the management is found false and the lone witness produced by the management has even denied what is mentioned in the written statement and has admitted that he has produced additional vouchers which itself prove the existence of relationship workman and employer between the parties and the witness of management has also stated that he did not know specifically whether the facts mentioned in his affidavit are also mentioned in the written statement or not, it is difficult to disbelieve the workman whose evidence throughout remains trustworthy with regard to existence of relationship of workman and employer between parties as also the period of employment alleged by him in a statement of claim. In the given facts and circumstances of the case even if it is assumed that there are two views with regard to period of continuous employment of one year of the workman with the ID No. 359/2005 12 management, one view favouring the management and other the workman, the benefit of doubt goes to the workman.
18. 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 appeals are dismissed. No costs."
19. 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 ID No. 359/2005 13 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."
20. 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 are to be interpreted in favour of beneficiaries, According to the Court, in case of doubt or where It is possible to take two views of a provision, the benefit must go to the labour.
21. In the light of the above discussion and the authorities and also keeping in view the fact that nowhere in the written statement the management has alleged that the workman has not worked continuously for more than one year with it and the plea of the management of nonexistence of relationship of workman and employer between the ID No. 359/2005 14 parties is found false, I hold that the workman has worked with the management continuously for more than 240 days preceding termination of his services on 14/5/2004. The plea of management regarding denial of the to relationship of workman empire between parties is in itself implied admission of the management regarding noncompliance of the provisions of Section 25 F of the Act resulting into illegal termination of the services of the workman by the management.
22. The question now arises what relief should be granted to the workman against the management.
23. 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 may not be compelled to pay to the workman for the ID No. 359/2005 15 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."
24. In Lords Homeopathic Laboratories private Ltd. Vs. Ms. Lissi Unnikunju and others 2006 IV AD (DELHI) 739 (DB) the Division Bench of our Hon'ble High Court made 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 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).ID No. 359/2005 16
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"
25. In a recent judgement the Division Bench of our honourable High Court in the case reported to as a Pramod Kumar & Anr. VS The Presiding Officer & Anr. 2006 LLR Delhi302 (D B) has examined the legal position in the following words:
" 9. Since the decision of Federal Court in the case of Western India Automobiles Association v.ID No. 359/2005 17
Industrial Tribunal reported in AIR 1949 FC 111 is a settled law that an Industrial Tribunal has jurisdiction to direct reinstatement and in a case of wrongful dismissal re-instatement is the normal rule. However, there are exceptions to this rule and these exceptions have been recognized in various judgments. Re-instatements has not been considered desirable in cases where there have been strained relation ships between employer and employee or there is lack of trust or loss of confidence. Reinstatement is also denied when an employee had been found to be guilty of subversive activity or acting prejudicial to the interest of the Industry. Courts have also denied reinstatement with back wages in cases where long time has lapsed. Reference in this regard may be made to the judgment of the Supreme Court in cases of Rattan Singh v.. Union of India, (1997) 11 SCC 396; Rolston John v. Central Government Industrial Tribunal- cum-Labour Court, 1995 (Supp) 4 SCC 549: (1994 Lab IC 973); Gujarat State Road Transport Corporation v. Mulu Amra, 1995 Supp (4) SCC 548:
AIR 1994 SC 112 and MP Shikshak Sangh v. State of MP, 1995 Supp (1) SCC 556.
10. In the case of Haryana Tourism Corp. Ltd. v.
Fakir Chand, (2003) 8 SCC 248: 2003 Lab IC 3678.
Supreme Court directed payment of compensation of Rs. 70.000 , instead of reinstatement with 5% back wages taking into consideration factors like (a) workers were daily wagers (b) workers were not recruited through employment exchange or regular mode of selection (c) services of the workers were terminated long back and (d) consideration nature of work, the workers must have done similar work at least intermittently.
ID No. 359/200518
11. In a number of matters, this Court has also ex- amined the same issue and it has been repeatedly held that where a long period has lapsed since the date of termination, compensation should be paid in lieu of re-instatement and back wages. Reference in this regard may be made to the judgments in the cases of Murari Lal Sharma v. Nehru Yuva Kendra Sangathan, (2002) 96 DLT 412 (DB) and K.H. Pandhi v. The Presiding Officer. Addl. Labour Court, (2004) 110 DLT 101: 2004 Lab IC 1401 and Pal Singh v.
NTPC Ltd., (2002) 96 DLT 877: 2002 Lab IC 1923."
26. In the present case there seems to be complete lack of faith between the parties and the management has even denied the existence of relationship of workman and employer between the parties. The service tenure of the workman was only a little more than one year. Therefore, in the light of the before mentioned authorities and keeping in view overall facts and circumstances of the case the workman, in my view, is entitled to a lump-sum compensation in the sum of Rs 25,000/-- from the management in lieu of relief of reinstatement to the job, continuity of service and back wages. However the management shall be entitled to deduct the 50% of the fee of Rs 700/-- paid to learned local commission for recording evidence. Therefore a sum of Rs 350/-- is to be deducted from the aforesaid compensation amount of which 25,000/-- and the workman shall be entitled to Rs 24,650/-- only from the management, in ID No. 359/2005 19 all. The Issue No.2 is accordingly decided in favour of the workman against the management.
27. In the light of my findings of the above issues the workman is entitled to a lump-sum compensation in the sum of Rs 24,650/-- from the management in lieu of reinstatement to the job continuity of service and back wages. In case the said amount is not paid by the management within 2 months from the date of publication of the award, the workman shall be entitled to recover the same along with simple interest @9% per annum from the date of the award, till recovery of the said amount. 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 Open Court on this
1st day of September, 2007 (S.K. SARVARIA)
Presiding Officer Labour Court No. XII
Karkardooma Courts, Delhi.