Delhi District Court
Smt. Meena vs The Management Of Municipal ... on 9 May, 2023
IN THE COURT OF GORAKH NATH PANDEY,
ADDL. DISTRICT & SESSIONS JUDGE,
PRESIDING OFFICER : LABOUR COURT - IV,
ROUSE AVENUE COURTS : NEW DELHI.
LIR No.7953/2016
CNR No.DLCT130051022016
IN THE MATTER OF :
Smt. Meena,
W/o Sh. Ved Prakash,
Lastly posted in Circle No.228, DEMS,
Shahdara South Zone, Delhi.
C/o Municipal Employees' Union,
Agarwal Bhawan, G.T.Road, Tis Hazari,
Delhi-110054.
R/o 184/9, Dr. Ambedkar Basti,
Near Valmiki Mandir, Ghonda,
Delhi - 110053.
....CLAIMANT
VERSUS
The Management of Municipal Corporation of Delhi,
Through its Commissioner,
Dr. S. P. Mukherjee Civic Centre,
J. L. Nehru Marg, Minto Road,
New Delhi.
....MANAGEMENT
Date of institution of the case : 23.04.2016
Date of final arguments : 09.05.2023
Date of passing the Award : 09.05.2023
Decision : Allowed.
AWAR D
1. This award shall decide the Industrial Dispute which
was referred by Dy. Labour Commissioner, East District on a
complaint filed by the aforesaid claimant against the
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Management, vide reference no.F.24(356)/E/Lab./14/4273 dated
14.12.2015, u/s 10 (1) (C) and 12 (5) of The Industrial Disputes
Act, 1947, wherein the following reference was to be answered :-
"Whether services of Smt. Meena, W/o Sh. Ved
Prakash have been terminated illegally and/or
unjustifiably by the management and if so, to what
sum of money as monetary relief along with other
consequential benefits in terms of existing
Laws/Govt. Notifications and to what other relief is
she entitled and what directions are necessary in this
respect?".
2. Notice of the reference was issued to the claimant
and pursuant thereto, the statement of claim was filed by her
claiming therein that she joined the employment of management
w.e.f. 15.01.1996 as a Safai Karamchari. Initially, she was being
treated as a substitute Safai Karamchari and was being paid fixed
wages as revised from time to time under the Minimum Wages
Act. Vide order dated 22.07.2010, the management converted
substitute safai karamcharies engaged from 01.04.1994 to
31.03.1996 into daily wager including the claimant herein. The
claimant worked continuously and uninterruptedly from
15.01.1996 to 09.05.2012. The management vide order dated
21.04.2011 gave offer letter to the claimant for her regularization
on the post of Safai Karamchari and only after its acceptance, the
service of the claimant aforesaid was regularized vide order dated
22.07.2011 by the management after her medical examination
and police verification. The claimant worked sincerely with the
management and never given any opportunity of complaint
during entire service period. The services of the claimant was
terminated vide termination/disengagement order dated
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09.05.2012. The claimant claimed that the order of termination is
bad in law and same amounts to unfair Labour Practice. It is
further submitted by the claimant that she worked for more than
240 days in the year preceding from the date of her illegal
termination and was therefore, entitled to the protection of
Section of 25F, G & H of ID Act, 1947 read with Rule 76, 77 &
78 of Industrial Dispute (Central) Rules, 1957. Letter/demand
notice dated 18.05.2012 was issued to the management which
was not replied. The claimant approached the Conciliation
Officer and conciliation proceedings resulted into failure due to
adamant and non-cooperative attitude of the management. As the
claimant was illegally terminated and was not reinstated, she is
entitled for reinstatement in service with full back wages. It is
claimed that the workman is unemployed since the date of her
illegal termination. As claimed, the management has not issued
any notice/charge-sheet and warning nor any domestic enquiry
was conducted while terminating the service of the claimant. It is
prayed that an award be passed in favour of workman and against
management directing the management to reinstate the claimant
with consequential benefits including full back wages and
continuity in service. It is also prayed that cost of litigation as
provided under Section 11 (7) of Industrial Dispute Act be also
awarded to the workman.
3. The notice of the statement of claim was issued to
the management. Management made its appearance in this case
and filed the written statement with the contentions that no
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demand notice has been served upon the management; a letter
dated 22.07.2010 was issued from the Office of Assistant
Commissioner of Erstwhile Corporation i.e., MCD, Ambedkar
Stadium, DEMS (HQ), Delhi as 85 workmen including the
present claimant were to be appointed on the post of Cleaning
Staff (Sawachhata Karamchari); the present claimant was
regularized as per the aforesaid letter as Sawachhata Karamchari
with East Delhi Municipal Corporation (EDMC); the claimant
was disengaged vide office order no. 883/AC/SH(S)/2012-2013
dated 09.05.2012; as per the order the matter was examined in
detail in consultation with the Chief Vigilance Officer, MCD and
during the course of examination, it was observed that the
claimant did not fulfill the criteria for regularization and had
been regularized in violation of the prescribed criteria; on
consideration of all aspects of the case by the competent
authority i.e. MCD vide its orders dated 27.04.2012 had given
the direction to disengage the workman; an enquiry was
conducted by the Vigilance Department of EDMC on the
suspicion that some fake persons were acting and representing on
behalf of the actually appointed claimant and the alleged fake
persons were drawing and taking salary also; in view of the
enquiry conducted by the Vigilance Department of EDMC, the
department sent the Report to the concerned office of EDMC,
Udyog Sadan, Patparganj, Delhi - 110092, on the basis of which
the above said authority sent the letter to all the workmen
including the present claimant to submit the documents in respect
of confirmation and verification of the claimant; the claimant
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failed to produce any of the documents of her eligibility for
regularization before the management; the claimant has not
submitted any of the documents which shows that she was
getting Rs.12,400/- as salary from the management and was
continuously working with Shahdara South Zone; the present
petition/claim is not maintainable as the claimant is gainfully
employed with any other organization and is earning sufficient
money; the claimant has concealed and suppressed the material
facts of the present case; the claimant did not explain that she
was the correct/actual person who was appointed by the MCD
and therefore, the present claim petition is liable to be dismissed
on this ground alone, however, it has been admitted that the
present claimant was appointed as a Sawachhata Karamchari
with MCD (prior trifurcation), Town Hall, Delhi. It has been
further stated in the written statement that the workman has not
complied with the terms and conditions as written in offer letter
dated 22.07.2011. It has been prayed that the claim of the
claimant be dismissed as the same is based upon the false and
concocted story.
4. Vide order dated 22.02.2017, the following issues
were framed in view of pleadings of the parties:-
ISSUES:
(1) Whether the enquiry conducted by the management
was in violation of principles of natural justice? OPW
(2) In terms of reference.
(3) Relief.
The case was, thereafter, fixed for evidence of
workman.
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5. In order to discharge the onus and prove the issue,
the claimant had appeared as witness and filed in evidence, her
examination in chief by way of affidavit Ex. WW1/A wherein she
had reiterated the contents of her statement of claim on solemn
affirmation. Besides this, she had also placed on record the
following documents :-
(i) Ex.WW1/1: Representation dated 18.05.2012;
(ii) Ex.WW1/2: Office order dated 22.07.2010;
(iii) Ex.WW1/3: Order dated 21.04.2011 for the medical
examination of the claimant;
(iv) Ex.WW1/4: Medical report of the claimant;
(v) Ex.WW1/5: Office order dated 22.07.2010;
(vi) Ex.WW1/6: Office order dated 09.05.2012;
(vii) Ex.WW1/7: Representation dated 28.03.2013;
(viii) Ex.WW1/8: Letter dated 31.03.2014; and
(ix) Ex.WW1/9: Voter I-card of the claimant.
The claimant was cross-examined by the AR of the
management. Thereafter, the claimant's evidence was closed.
6. The management examined Sh. Ramesh Chandra
Sahoo, Assistant Commissioner as MW1 who filed his affidavit
by way of evidence Ex.MW1/A. Besides this, he had also placed
on record the following documents :-
(i) Ex.MW1/1: Office order dated 09.05.2012;
(ii) Ex.MW1/2: Office order dated 17.06.2011;
(iii) Ex.MW1/3: Letter of some workman; and
(iv) Ex.MW1/4: Photocopy of attendance sheet.
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MW1 was cross-examined by the AR for the
claimant at length. The management's evidence was, thereafter,
closed.
7. I have heard the final arguments addressed by the
AR for the parties. I have also gone through the material lying on
record. My issue-wise findings are as under:
Issues No.1 & 2:
(1) Whether the enquiry conducted by the management
was in violation of principles of natural justice? OPW
(2) In terms of reference.
"Whether services of Smt. Meena, W/o Sh. Ved Prakash have
been terminated illegally and/or unjustifiably by the management and if so,
to what sum of money as monetary relief along with other consequential
benefits in terms of existing Laws/Govt. Notifications and to what other
relief is he entitled and what directions are necessary in this respect?".
8. The onus to prove the above Issues were on the
workman. The statement of claim filed by the claimant and the
defence of the management has been mentioned at the outset.
The claimant claimed that she joined the management w.e.f.
15.01.1996 at the post of Safai Karamchari; her services were
regularized vide office order dated 22.07.11 and her services
were terminated illegally and unjustifiably by the management
vide order dated 09.05.2012. The workman has produced the
relevant documents i.e. Ex.WW1/1 to Ex.WW1/9.
The employer employee relationship is not disputed.
The management in the written statement claimed that since the
claimant did not fulfill criteria for regularization and failed to
produce the supporting documents of her eligibility for
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regulrization, her services were terminated vide order dated
09.05.2012.
The claimant in the claim petition as well as in her
affidavit by way of evidence Ex.WW1/A reiterated her case
regarding her claim and also proved the relevant documents. The
witness/WW1 was cross-examined by the management and
deposed that:
"It is wrong to suggest that I started working as a daily wager
since November, 1997. I continued to work as daily wager till
year, 2010 but I do not remember exact date and month. It is
wrong to suggest that I had not worked for 240 days in a year
for the period 1997-2000. I had deposited the documents
from my own side for regularization of my services. It is
wrong to suggest that all the documents depositing by me
with the management for regularization of my services were
all false and fabricated. It is wrong to suggest that a vigilance
inquiry is going on in respect of documents submitted by me
before the management for regularization of my services. I
had applied for job at the instance of one uncle who resided
in my neighbourhood. I was working in Ward No.228 as daily
wager but I do not recollect the name of my Daroga (Sanitary
Inspector). My daroga had told me regarding permanency of
my job. The name of said Daroga was Sanjay Panwar. It is
wrong to suggest that since I was never made a permanent
employee of the management, hence, no facility such as
I.Card etc. were extended to me by the management. I used to
get my salary in cash. I had requested the senior officers for
my reinstatement but none had helped me. No reason for
termination of my job was conveyed to me by the
management. I have filed the present case for reinstatement
of my job. It is wrong to suggest that I am deposing falsely".
During cross-examination, the claimant reiterated
her case regarding her employment with the management. The
claimant denied the suggestion that she had placed false and
fabricated documents for regularization of her services.
Management/MCD examined MW1 Sh. Ramesh
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Chandra Sahoo in support of its contentions. MW1 was cross-
examined by the AR for the workman and deposed as under:
"(Ld. AR for the workman pointed out that the management
witness has deposed in affidavit para 2 to 6 the contentions
beyond the pleadings. It is noted that anything deposed
beyond pleadings cannot be considered as per law).
I don't know if the workman raised this industrial disputes
before the Conciliation Officer, Govt. of NCT. I have no
knowledge about the conciliation proceedings before the
Labour Department of Govt. of NCT. I have not filed the
complete record pertaining to this case in relation to
termination of services of the concerned workman. It is
incorrect to suggest that we have not filed the complete record
in relation to this matter before this Court as if we would have
placed the complete record that would have shown the
workman has innocent the management has adopted the
policy of hire and fire and has committed unfair labour
practices. There is nothing on record to show that the
management has afforded any opportunity of being heard to
the workman while the management was consulting with the
Office of Chief Vigilance. It is incorrect to suggest that the
matter was never discussed or consulted with the Office of
Chief Vigilance.
Q. Please tell the Hon'ble Court as to what was the
material or evidence before you by which you have come
to the conclusion the workman does not fulfill the criteria
for regularization?
Ans. We had attendance sheets of the workman which are
collectively mark as MarkA.
We had no other document in this regard. Vol. The other
documents are with the Vigilance Department. We have not
kept any copies of such records. It is incorrect to suggest that
there is no record with the Vigilance Department and I am
telling a lie in this regard.
It is correct that we have stated in para 4 of our written
statement filed before the Court that the Vigilance
Department conducted an inquiry against the workman. I
cannot tell as to what was the material before the Vigilance
Department of the EDMC on the basis of which they have
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arrived to the conclusion that this Meena is not that Meena
which was appointed by the EDMC. It is incorrect to suggest
that there was no material or evidence whatsoever to come to
the conclusion that this Meena is that who was appointed by
the EDMC. Vol. Only Vigilance Department of EDMC
knows about it. I have no document to show that I have
inquired anything in this regard from Vigilance Department of
the EDMC. I have no material or evidence to show even
today in the Court that this Meena is not that Meena who was
appointed by the EDMC. I cannot say as on what basis /
reason on which the services of the workman were terminated
whether it was on the reason that she was not fulfilled the
criteria of regularization or that she is not that Meena who
was appointed by the EDMC. No termination letter was
issued to the workman except office order Ex. MW1/1. I have
no document to show that Ex. MW1/1 was given to the
workman. The averments made in para 1 and 2 of our written
statement which is filed in this Hon'ble Court are correct and
not in para 10 of preliminary objection. I have nothing to
show that there is any term in appointment letter dated
22.07.2011 which the workman was not fulfilling. It is
incorrect to suggest that the workman was fulfilling all the
conditions for regularization of her services. There is nothing
on record to show if no appointment letter or muster roll book
or any other document was given to the workman. It is correct
that the complete record in respect of leave substitute / daily
wager / regular employee is maintained and preserved by the
management. We have not asked any service record from the
workman Smt. Meena. The workman was called to participate
in the Vigilance inquiry. The witness is shown the Court
record but failed to find out any document in this regard. It is
incorrect to suggest that the workman was never called for
Vigilance Inquiry or that any vigilance inquiry was conducted
in this regard. Ex. WW1/5 containing three sheets were
issued by the management and the contents of the same are
correct. Ex. WW1/3, Ex. WW1/4, Ex. WW1/2 and Ex.
WW1/6 are correct and are issued by the management. We
have no evidence whatsoever ever to show that the workman
is gainfully employed elsewhere after her services were
terminated by the management. There is nothing on record to
show that any memo was given to the workman or that any
chargesheet was issued and departmental inquiry was
conducted against her prior to terminating her services. Vol.
The said record is with the vigilance department. The inquiry
report is not filed on record in this case. I have not seen any
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such inquiry report along with memo or show cause notice to
the workman. I have deposed regarding inquiry being part of
procedure. It is incorrect to suggest that I am telling a lie in
this regard that any show cause notice was given to the
workman or that any chargesheet was given an inquiry was
held against the workman. It is correct that EDMC the first
appointment of Safai Karamchari is leave substitute and
subsequently they are converted into muster roll employee
then the EDMC formulate a policy of regularization and then
their services are regularized. I cannot say if no regular or
permanent Safai Karamchari is directly appointed by the
EDMC. It is incorrect to suggest that the management has
terminated the services of the workman for patently false
reasons and in the colourable exercise of its power. It is
correct that the Safai Karamchari who were appointed by the
EDMC in the year, 1996 to 2000 are still working with the
management. No notice or notice pay in lieu of notice was
either offered or paid to the workman. No service
compensation was either offered or paid to her no seniority
list of Safai Karamchari was displayed or on before
09.05.2012. It is correct that the job of Safai Karamchari is of
perennial nature of work and it is going on from the date of
inception of the management and likely to continue for long
times to come. The job of safai is the integral part of the
management. It is incorrect to suggest that the averments
made by me in the affidavit are false. It is incorrect to suggest
that the workman is entitled to the relief of reinstatement with
full back wages and continuity of service".
The MW1 during cross-examination deposed that - I
can not say as on what basis/reason on which the services of the
workman were terminated whether it was on the reason that she
was not fulfilled the criteria of regularization or that she is not
that Meena who was appointed by the EDMC; no termination let-
ter was issued to the workman except office order Ex.MW1/1; I
have no document to show that Ex.MW1/1 was given to the
workman; I have nothing to show that there is any term in ap-
pointment letter dated 22.07.2011 which the workman was not
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fulfilling; the inquiry report is not filed on record in this case; I
have not seen any such inquiry report alongwith memo or show
cause notice to the workman. MW1 also admits that many of the
Safai Karamchari who joined the management from 1996 to 2012
are working with the management as regular employees. There is
nothing in the cross-examination of the MW1 to controvert the
claim of the claimant. The claimant categorically proved that she
worked with the management and completed 240 days of work-
ing in the preceding year of her termination. There is no docu
ment on record placed by the management to show that any Vigi
lance Inquiry was conducted against the claimant. The contention
and claim of the claimant appears to be coherent. As noted, there
is no enquiry conducted by the management before the termina
tion of the services of the management.
9. 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. 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
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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 properly 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
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 :
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"(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 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 LIR No.7953/2016 Meena v. MCD Page No.14/24 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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40. 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 11A, 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 11A 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 11A 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 11A."
10. It is reiterated that in this case no steps were taken by the management in respect of charge sheet and inquiry at all nor the management proved any reason of termination of claimant. In view of the aforesaid discussions, it is held that the LIR No.7953/2016 Meena v. MCD Page No.16/24 management herein has not been able to discharge its onus in support of contentions. It is duly proved from the materials on record and the testimony of the witnesses that the services of the claimant were terminated illegally/unjustifiably by the management. In view of the above discussions, the Issues no.1 and Issue No.2 are decided in favour of the workman and against the management.
Relief
11. 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'.
12. In Hindustan Tin Works Pvt. Ltd. Vs. The Employees of Hindustan Tin Works Pvt. Ltd., (1979 (2) SCC 80). The three judges Bench of the Hon'ble Supreme Court has laid down :
LIR No.7953/2016 Meena v. MCD Page No.17/24"In the very nature of things there cannot to a straight jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances..."
13. In cases of wrongful termination of service, reinstatement with continuity and back wages is the normal rule as held by the Hon'ble Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya and Ors., (2013) 10 SCC 324. The concept of reinstatement was also discussed therein:
"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).
Further, the Hon'ble Supreme Court laid down the following principles to govern the payment of back wages:
(Deepali Gudnu Surwase case, SCC pp. 356-58, para 38) LIR No.7953/2016 Meena v. MCD Page No.18/24 "38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2 The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
38.3 Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. 38.4 The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then, it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award or full back wages. 38.5 The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must LIR No.7953/2016 Meena v. MCD Page No.19/24 always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
38.6 In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-a-
vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of frame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees".
14. 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 :
"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 emphasised is that there may be LIR No.7953/2016 Meena v. MCD Page No.20/24 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."
15. Hon'ble High Court of Delhi in the matter titled as Thomas Reuters Private Limited vs. Ld. Presiding Officer, Labour Court & Ors. cited as MANU/DE/2665/2021, dated 30.09.2021 has held that in cases of illegal dismissal, the normal rule is reinstatement with full back wages. The Hon'ble High Court of Delhi in Paras No. 102, 106 and 119 thereof has held as under :
"102. In view of the conspectus of the aforesaid judgements, be it ingeminated that whenever an employee is dismissed, removed or terminated and the action of the employer is found to be illegal, the normal rule, albeit subject to exceptions, is that the employee should be restored to the position which he or she held before the umbilical cord broke between the employer and the employee. As noticed by the Hon'ble Supreme Court, the word 'reinstatement' means to reinstall/re- establish/restore to the earlier position or former state, condition or office.
"106. Recent trend of judgements shows that Courts have been holding that reinstatement may not be a natural or automatic consequence of setting-aside of dismissal order. However, reading of the two aforesaid judgements and other recent judgements, in my considered view, leads to an inevitable conclusion that for the purpose of grant of relief of reinstatement, Courts have always understood and appreciated the difference in the nature of employment of the employee as well as the length of service. In the present case, Respondent No.2 was a regular employee, with over nineteen years of LIR No.7953/2016 Meena v. MCD Page No.21/24 continuous and unblemished service and clearly falls within the axiomatic jurisprudence and legal regime laid down by the Hon'ble Supreme Court in Hindustan Tin Works (supra) and not in the exceptions in the later judgements.
"119. On a reading of the above conspectus of judgements and the principles propounded in Deepali Gundu (supra), it is clear that the law on back wages is no longer res integra. In cases of wrongful termination, reinstatement with back wages is the normal rule, subject to course to a caveat that while deciding the issue of back wages, Courts may take into consideration a host of factors, such as length of service of the employee, financial condition of the employer, etc. The employee is required to plead that he or she was no gainfully employed or was employed on lesser wages. As observed in Deepali Gundu (supra), in cases where the Competent Court or Tribunal finds that employer has acted in gross violation of statutory provisions and/or Principles of Natural Justice, etc. then it shall be fully justified in directing payment of full back wages and in such cases, Superior Courts should not exercise powers under Article 226 or Article 136 of the Constitution of India and interfere with the Award, only because there is possibility of forming a different opinion. Hon'ble Supreme Court has also struck a note of caution that Courts must always keep in view that in cases of wrongful termination, wrongdoer is the employer and sufferer is the employee/workman and thee is thus no justification to give a premium to the employer for their wrongdoing by relieving them of the burden to pay back wages."
16. In the present case, the claimant had worked with the management for more than 16 years before her illegal termination on 09.05.2012, as such, this court is of the considered view that the case of the claimant does not fall in any of the categories as mentioned by Hon'ble Supreme Court in the case of Tapash Kumar Paul Vs BSNL & Anr,(Supra) and therefore, in the present case claimant is entitled to be reinstated in services.
17. The claimant in statement of claim as well as in her LIR No.7953/2016 Meena v. MCD Page No.22/24 affidavit Ex.WW1/A deposed that she is unemployed since the date of her illegal termination despite her best efforts. In the present case, the management has not been able to show that the claimant herein is gainfully employed elsewhere by summoning of relevant witnesses or proving the documents as per law. The claimant is, therefore, entitled for full back wages as well.
18. The reference is answered accordingly in favour of the claimant and against the management and the claimant namely Smt. Meena is entitled for reinstatement in services on the post on which she was working on the date of termination with full back wages with effect from 09.05.2012 i.e. the date of termination of the claimant up-to-the date of the award with other consequential benefits.
19. Management is directed to pay the amount accrued in favour of claimant within three months from the date of publication of award. If the management fails to pay the amount within the time stipulated, the accrued amount shall carry interest @ 9% per annum from the date of accrual and till the final payment is made.
20. Award is passed accordingly.
21. Award be uploaded on the website of RADC. A signed copy of the award be sent to the concerned Dy. Labour Commissioner for publication as per rules.
LIR No.7953/2016 Meena v. MCD Page No.23/2422. File be consigned to the Record Room.
Announced in the open (Gorakh Nath Pandey),
Court on 09.05.2023 Addl. District & Sessions Judge,
Presiding Officer Labour Court- IV,
Rouse Avenue District Courts, New Delhi.
LIR No.7953/2016
Meena v. MCD Page No.24/24