Delhi District Court
Sh. Rajesh Kumar vs Ms Shirdi Industries Ltd on 28 February, 2024
IN THE COURT OF
THE PRESIDING OFFICER, LABOUR COURT - 01
ROUSE AVENUE DISTRICT COURT: NEW DELHI
Presided over by: Ms. Pooja Aggarwal, DHJS
LC No. 248/2016
Old No. 183/2015
CNR No.: DL-CT13000735-2015
In the matter of:
Sh. Rajesh Kumar
S/o Sh. Tara Chand
R/o F-42/D, Krishna Vihar, New Delhi-110086.
C/o Rashtriya Mazdoor Sangh
T-44-D, Karampura, Delhi-110015.
.....Workman
Name/mobile no of A.R: Sh. Kailash Kumar Jonwal
Office at Chamber No. 707, Western Wing,
Tis Hazari Courts, Delhi.
Mobile No. of AR: 9810079644, 9810479644
VERSUS
M/s Shirdi Industries Ltd.
Plot No. 2/88/1, Block No. 2,
2nd Floor, WHS, Kirti Nagar (Main Road),
New Delhi-110015.
Name of AR: Sh. Sunil Kumar
Office at: Chamber No.F-609, Karkardooma Courts, Delhi.
Mobile no.: Not Provided
.....Management
Date of Institution : 19.09.2015
Date of Final Arguments : 06.02.2024
Date of Award : 28.02.2024 Digitally signed by
POOJA POOJA AGGARWAL
AGGARWAL Date: 2024.02.28
16:24:10 +0530
LC No.248/2016 (Old No. 183/2015)
Rajesh Kumar vs. Shirdi Industries Ltd. Page No. 1 of 25
AWARD
1. The present claim under Section 2A(2) of the Industrial
Disputes Act, 1947 has been filed by the workman/
claimant Sh. Rajesh Kumar against the management of
M/s Shirdi Industries Ltd. seeking that the termination of
his services be set aside and he be reinstated in service
with continuity of services and full back wages with all
other consequential benefits.
Facts as per the Statement of Claim
2. As per the statement of claim, the workman Sh. Rajesh Kumar was working as an Accountant with the aforesaid management since 22.02.2010 with his last drawn wages being Rs. 22,000/- per month without their being any complaint against his work or conduct. It has been further stated that the workman / claimant was deprived of various legal benefits such as appointment letter, attendance card, Provident Fund, bonus etc.; no heed was paid by the management when the same was demanded by the workman orally and the management used to remain annoyed with him.
3. Further as per the claim, on 19.05.2014, the management terminated the services of the workman/ claimant by sending an email to his email ID but the management neither paid nor offered his earned wages and also did not give any notice or pay in lieu thereof or retrenchment Digitally signed by POOJA POOJA AGGARWAL LC No.248/2016 (Old No. 183/2015) AGGARWAL Date: 2024.02.28 16:24:27 +0530 Rajesh Kumar vs. Shirdi Industries Ltd. Page No. 2 of 25 compensation.
4. It is further stated that the workman / claimant filed a complaint dated 21.05.2014 before the Assistant Labour Commissioner, Karampura, Delhi through his union after which the management appeared before the Labour Inspector on 02.06.2014 through its Authorized Representative Sh. Sunil Kumar and admitted that the Earned wages of the workman/claimant for the month of May 2014 was due but neither produced any record relating to the workman nor the account of workman was settled and the claimant/workman was also not reinstated by the management after which the Labour Inspector submitted his report dated 18.07.2014.
5. Further it has been asserted in the statement of claim that subsequently, the earned wages of the workman / claimant for the month of May 2014 was directly credited to his bank account. It has been also asserted that the workman / claimant sent a demand notice dated 23.06.2014 by speed post demanding reinstatement with full back wages and continuity of services with all other consequential benefits but the same was not replied by the management despite receiving the same.
6. It is further stated that the conciliation proceedings initiated by the workman/claimant before the Conciliation Officer, Karampura, Delhi ended in failure report dated 06.08.2014 wherein the workman / claimant was granted Digitally signed by POOJA POOJA AGGARWAL AGGARWAL Date: 2024.02.28 LC No.248/2016 (Old No. 183/2015) 16:24:41 +0530 Rajesh Kumar vs. Shirdi Industries Ltd. Page No. 3 of 25 liberty to file the present dispute directly before this Court.
7. It is also stated that the workman / claimant had worked for more than 240 days in every year during his entire tenure, his services were terminated without giving/ offering earned wages for May 2014 or any notice / notice pay / retrenchment compensation, without following the provision of Labour Laws, without issuing any seniority list, without permission of appropriate government and his junior workers are still continuing with the management and therefore the termination of services of the workman / claimant is liable to be set aside on account of non compliance of mandatory provisions of Section 25 F, 25 G and 25 H of the Industrial Disputes Act.
8. Further, as per the statement of claim, the workman / claimant could not obtain any employment on or after 19.05.2014 till date and is unemployed since then, hence the present claim.
Facts as per the written statement/reply
9. The management has raised preliminary objections as to the very maintainability of the claim, asserting that the claimant was not covered in the definition of workman under Section 2 (s) of Industrial Disputes Act; as to there not existing any industrial dispute between the parties; as to there being no territorial jurisdiction of the Court since the claimant /workman was appointed by the office of management situated at Mumbai conferring jurisdiction for Digitally signed by POOJA POOJA AGGARWAL AGGARWAL Date: 2024.02.28 16:25:00 +0530 LC No.248/2016 (Old No. 183/2015) Rajesh Kumar vs. Shirdi Industries Ltd. Page No. 4 of 25 proceedings in relation to any dispute to Mumbai and as to the claimant himself having absented himself from his duty without any intimation to the management w.e.f. 23.06.2014. It has also been asserted that the claim has been filed with the ulterior motive to extort money from the management.
10.On merits, it has been asserted by the management that in addition to working as an Accountant, the claimant was also doing Administrative work of handling petty cash for day to day office work and thus he was not a 'workman' under the definition of Industrial Disputes Act. It has also been asserted that the last drawn salary of the claimant / workman was Rs. 15,400/- per month along with entitlement for local conveyance for Rs. 2,600/- and Rs. 4000/- towards actual conveyance. The remaining contents of the statement of claim have been denied on merits, however, it has been asserted that the claimant had been given a letter of appointment dated 24.02.2010 which was duly acknowledged by the claimant which contained a stipulation as to probationary period and the management had not issued any confirmation letter to him. It has also been asserted by the management that due to his ill behaviour in the office, the claimant was served Show Cause Notice dated 22.05.2014 but its reply was still awaited.
11.It has further been asserted by the management that they never terminated the services of the claimant which was Digitally signed by POOJA POOJA AGGARWAL LC No.248/2016 (Old No. 183/2015) AGGARWAL Date: 2024.02.28 16:25:16 +0530 Rajesh Kumar vs. Shirdi Industries Ltd. Page No. 5 of 25 clear even from the attendance record. It has also been asserted by the management that they had taken the claimant back on duty on 03.06.2014 but he created unprofessional and indisciplined atmosphere in the office and also forcefully signed/overwrote on the attendance register. The management has also asserted as to having replied to the demand notice sent by the claimant vide reply dated 26.06.2014 which was duly served upon the union of the claimant but the claimant refused to receive the same. It has been reiterated by the management that they had never terminated the services of the claimant, it had already paid the salary of the claimant for May 2014 and it has been further asserted that the claimant is gainfully employed somewhere else. Thus the management has sought dismissal of the present claim.
12.No rejoinder has been filed by the workman to the written statement/ reply of the management.
Issues
13.After completion of the pleadings, the following issues were framed by the Ld. Predecessor vide order dated 28.03.2016:-
(i) Whether the claimant is not a workman as defined under Section 2 (s) of the I. D. Act, 1947? OPM
(ii) Whether the workman/ claimant himself absented from his duty without any intimation to the management w.e.f. 23.06.2014, if so, its effect? OPM
(iii) Whether this Court has no territorial jurisdiction to entertain and try the present claim POOJA Digitally signed by POOJA AGGARWAL LC No.248/2016 (Old No. 183/2015) AGGARWAL Date: 2024.02.28 16:25:32 +0530 Rajesh Kumar vs. Shirdi Industries Ltd. Page No. 6 of 25 as alleged by the management? OPM
(iv) Whether the services of the workman were terminated by the management illegally and unjustifiably as claimed by the workman? OPW
(v) Whether the workman is entitled to the relief claimed in the statement of claim? OPW
(vi) Relief.
Workman Evidence
14.To prove his case, the claimant / workman Rajesh Kumar has examined only himself and as WW-1, he has tendered his evidence by way of affidavit Ex.WW-1/A on similar lines as his statement of claim and has also relied upon following documents:
i. Office copy of the complaint dated 21.05.2014 made to the Assistant Labour Commissioner i.e. Ex. WW-1/1 (though mentioned in his affidavit as Ex WW1/2). ii. Labour Inspector Report dated 18.07.2014 i.e. Ex.
WW-1/2 (though mentioned in his affidavit as Ex WW1/3).
iii. Office copy of demand notice dated 23.06.2014 i.e. Ex.
WW-1/3 (though mentioned in his affidavit as Ex WW1/4).
iv. Postal receipt i.e. Ex. WW-1/4.
v. Office copy of complaint dated 23.06.2014 filed by the workman before the Conciliation Officer i.e. Ex. WW- 1/5.
vi. Office copy of replication to the written statement of management filed before the Conciliation Officer i.e. Ex. WW-1/6.
vii. Failure Report dated 06.08.2014 i.e. Ex. WW-1/7.
viii. Photocopy of email dated 19.05.2014 i.e. Mark A LC No.248/2016 (Old No. 183/2015) Digitally signed by Rajesh Kumar vs. Shirdi Industries Ltd. POOJA POOJA AGGARWAL Page No. 7 of 25 AGGARWAL Date: 2024.02.28 16:25:50 +0530 (though mentioned in his affidavit as Ex WW1/1).
15.The workman was duly cross-examined on behalf of the management and during the cross-examination, the WW1 was again examined wherein he relied upon certificate under Section 65B Evidence Act and email dated 19.05.2014 i.e. Ex. WW-1/9. He was further cross- examined on behalf of the management.
Management Evidence
16.The management has also examined only one witness and as MW1, Shri Ramesh Kumar, Accounts Officer, tendered his evidence by way of affidavit i.e. Ex.MW-1/A on similar lines as the written statement. He also relied upon the following documents i.e. i. Reply of notice dated 26.06.2014 i.e. Ex. MW-1/1 ii. Written statement filed before Conciliation Officer i.e. Ex. MW-1/2 iii. Letter dated 03.06.2014 filed before Labour Inspector i.e. Ex. MW-1/3.
iv. Show cause notice dated 22.05.2014 i.e. Ex. MW-
1/4.
v. Copy of letter dated 03.06.2014 alongwith copy of attendance register i.e. Ex. MW-1/5 vi. Appointment letter dated 24.02.2010 i.e. Ex. MW-
1/6.
vii. Salary slip for the month of May 2014 i.e. Ex. MW-
1/7.
He was duly cross-examined on behalf of the workman.
Digitally signed by POOJA POOJA AGGARWAL
AGGARWAL Date: 2024.02.28
LC No.248/2016 (Old No. 183/2015) 16:26:06 +0530
Rajesh Kumar vs. Shirdi Industries Ltd. Page No. 8 of 25
Final Arguments
17.Thereafter final arguments were advanced by Sh. K. K. Jonwal, Authorized Representative of the workman and Sh. Sunil Kumar, Authorized Representative of the management.
18.The final arguments as advanced have been carefully considered alongwith the evidence on record and after thoughtful consideration of the same, issue wise findings are as under:
Issue No. (i): Whether the claimant is not a workman as defined under Section 2 (s) of the I. D. Act, 1947?
19.The onus to prove this issue was upon the management.
20.As per the statement of claim as well as Ex.WW1/A, the claimant Sh. Rajesh Kumar was working as an Accountant with the management. The factum of the claimant working as an Accountant with the management has not been disputed by the management. However, in their written statement, the management has set up the case that the claimant was also doing administrative work of handling of petty cash for the day to day office work and hence he was not a workman under Section 2 (s) of the Industrial Disputes Act, 1947.
21.For the sake of convenience, Section 2 (s) of the Industrial Disputes Act, 1947 is reproduced as under: POOJA Digitally signed by POOJA AGGARWAL AGGARWAL Date: 2024.02.28 LC No.248/2016 (Old No. 183/2015) 16:26:22 +0530 Rajesh Kumar vs. Shirdi Industries Ltd. Page No. 9 of 25 "(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person--
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
(Emphasis supplied)
22.In the present case, though MW1/Sh Ramesh Kumar has testified in his affidavit i.e. Ex MW1/A that the claimant was also doing administrative work, his self serving testimony in this respect was discredited during his own cross-examination, wherein he has himself admitted that the main work of the workman was clerical in nature and no managerial, administrative, supervisory or financial powers were given to the workman. Hence, the LC No.248/2016 (Old No. 183/2015) Digitally signed by Rajesh Kumar vs. Shirdi Industries Ltd. POOJA POOJA AGGARWAL Page No. 10 of 25 AGGARWAL Date: 2024.02.28 16:26:36 +0530 management has itself disproved its own stand.
23.Further, the management has also failed to bring on record any other evidence to prove that the claimant was performing administrative work sufficient to exclude him from the ambit and scope of definition of workman. Not even a single suggestion as to him having administrative powers were put to WW1/ claimant/workman during his cross-examination either.
24.That being so, the management has failed to prove that the claimant was also discharging administrative functions sufficient to exclude him from the ambit of Section 2(s) of the Industrial Disputes Act. Thus, with the management having failed to discharge the onus cast upon it, the issue no. (i) is decided against the management and in favour of the claimant/workman.
Issue No. (iii). Whether this Court has no territorial jurisdiction to entertain and try the present claim as alleged by the management?
25.This issue is being decided before issue no. (ii) for the sake of convenience. The onus to prove this issue was on the management as well.
26.In their written statement as well as in the evidence by way of affidavit of MW1/Sh. Ramesh Kumar Sharma i.e. Ex MW1/A, the management has asserted that as the claimant was appointed by the Mumbai Office of the management, the proceedings regarding the dispute should be in POOJA Digitally signed by POOJA LC No.248/2016 (Old No. 183/2015) AGGARWAL AGGARWAL Date: 2024.02.28 16:26:52 +0530 Rajesh Kumar vs. Shirdi Industries Ltd. Page No. 11 of 25 Mumbai. It is pertinent to note here that it is not the case of the management that there exists no jurisdiction with the Delhi Courts and even during his cross-examination, MW1 has himself admitted that the claimant was appointed in Delhi and was also working in Delhi. It has also come on record during the cross-examination of WW1/Claimant Rajesh that the North Zone registered office of the management was in Delhi. Hence, it is evident that with the claimant working in Delhi, the cause of action regarding his termination also arose in Delhi itself and not Mumbai.
27.It is also not lost sight of that the management has failed to bring on record any legal proposition or facts which excludes the jurisdiction of this court within whose jurisdiction the claimant was working at the time and the cause of action arose and even during the course of final arguments, the Ld AR for the management did not press this issue.
28.That being so, it is held that the management has failed to discharge the onus cast upon it, and issue no. (iii) is accordingly decided against the management and in favour of the claimant.
Issue No. (ii): Whether the workman/ claimant himself absented from his duty without any intimation to the management w.e.f. 23.06.2014, if so, its effect?
29.The onus to prove this issue was on the management. Digitally signed by
POOJA POOJA AGGARWAL
LC No.248/2016 (Old No. 183/2015) AGGARWAL Date: 2024.02.28
16:27:08 +0530
Rajesh Kumar vs. Shirdi Industries Ltd. Page No. 12 of 25
30.It is a settled proposition of law that absenteeism is different from abandonment and that when the plea of abandonment of service by the workman is taken by the management, it is for the management to prove not just the factum of the claimant being absent but it also has to place on record sufficient material to show that it had called the employee to report for duty and if he did not so report, then enquiry is to be initiated against him.
31.Strength for this interpretation is drawn from Fateh Chand v. Labour Court, 2012 SCC OnLine Del 281, wherein it has been held by the Hon'ble Delhi High Court that:
" It is also a settled legal position that abandonment of service is different from absenteeism. Abandonment of service is the voluntarily relinquishment of ones services with the intention not to resume the same. It is a matter of inference to be drawn from the facts and circumstances of each case and mere absenteeism for a continuous period does not mean that the employee has abandoned his service. The management has to bring on record sufficient material to show that the employee has abandoned the service and abandonment cannot be attributed to the employee without there being sufficient evidence. On the failure to report for duty, the management has to call upon the employee and if he refuses to report, then an enquiry is required to be ordered against him and accordingly action taken. In the absence of anything placed on record by the petitioner management, no presumption against the respondent can be drawn. No enquiry in this case was set up by the petitioner management and even no letter was sent by the management to the respondent workman calling upon him to resume POOJA Digitally signed by POOJA LC No.248/2016 (Old No. 183/2015) AGGARWAL AGGARWAL Date: 2024.02.28 16:27:22 +0530 Rajesh Kumar vs. Shirdi Industries Ltd. Page No. 13 of 25 his duty. The case in hand is a clear case of violation of Section 25-F of the Industrial Disputes Act as the petitioner management failed to adhere to the procedure prescribed under Section 25-F of the I.D. Act before dispensing with the service of the respondent workman."
(Emphasis supplied)
32.In the case at hand, MW1 Sh Ramesh Kumar has testified in Ex. MW1/A that the claimant/ workman was absent from the duty without any intimation to the management w.e.f. 23.06.2014. However, except self serving oral testimony, the management has failed to bring on record any corroborative evidence in the form of even any attendance register reflecting the presence of the claimant/workman till 23.06.2014.
33.It is also pertinent to note that MW1 Sh. Ramesh Kumar has himself admitted in his cross-examination that no letter was written by the management regarding absenteeism of the workman, no chargesheet was issued nor any domestic enquiry was conducted by the management and even in the reply dated 26.06.2014 i.e. Ex MW1/1, which had been purportedly sent by the management after 3 days from the alleged date of absenteeism, there is no mention of the claimant/ workman being absent since 23.06.2014.
34.In these circumstances, with there being nothing on record to even remotely suggest that the management ever made any endeavour to ask the workman to report for duty, the plea of absenteeism appears to be a mere afterthought and Digitally signed by POOJA POOJA AGGARWAL AGGARWAL Date: 2024.02.28 LC No.248/2016 (Old No. 183/2015) 16:27:35 +0530 Rajesh Kumar vs. Shirdi Industries Ltd. Page No. 14 of 25 no presumption can be drawn against the claimant/ workman.
35.Hence, it is held that the management has failed to discharge the onus cast upon it as the workman/ claimant himself having absented from his duty without any intimation to the management w.e.f. 23.06.2014. Thus, this issue is decided against the management and in favour of the workman/claimant.
Issue no. (iv): Whether the services of the workman were terminated by the management illegally and unjustifiably as claimed by the workman?
36.The onus to prove this issue was on the claimant/workman.
37.At the very outset, it is noted that the existence of relationship of employer-employee between the claimant/ workman and the management stands proved as WW1 workman/ claimant has testified in Ex WW1/A that he was working as an Accountant with the management since 22.02.2010 which has also been admitted by the MW1 in his cross-examination.
38.In respect of his termination from service, WW1 workman/ claimant has testified that his services were terminated by the management vide e-mail sent on 19.05.2014 without paying or offering his earned wages for the month of May nor the management gave or offered any notice or pay in lieu thereof or even retrenchment compensation. He has also relied upon the e-mail i.e. Ex WW1/9 (earlier Mark A) Digitally signed by POOJA POOJA AGGARWAL LC No.248/2016 (Old No. 183/2015) AGGARWAL Date: 2024.02.28 16:27:51 +0530 Rajesh Kumar vs. Shirdi Industries Ltd. Page No. 15 of 25 and his certificate under Section 65B Indian Evidence Act.
39.The factum of the services of the claimant/ workman having been terminated by the management vide the said e-mail i.e. Ex WW1/9 has also been admitted by the MW1 Sh Ramesh Kumar who admitted that the e-mail Ex MW1/W1 (earlier Mark A/ Ex WW1/9) was sent by the Director to the workman and that vide the said e-mail dated 19.05.2014, the services of the workman were terminated.
40.Hence, the factum of the services of the claimant/workman having been terminated by the management on 19.05.2014 stands proved.
41.With the workman/ claimant being in continuous service with the management since 2010 i.e. for more than one year, it was incumbent upon the management to comply with the provisions of Section 25F Industrial Disputes Act before terminating the services of the claimant/workman.
42.By virtue of Section 25F of the Industrial Disputes Act, before terminating the services of the workman, it was incumbent upon the management to:
• give one month's notice to the workman or pay wages for the period of the notice in lieu of such notice, • at the time of retrenchment, pay compensation equivalent to fifteen days' average pay for every completed year of continuous service or any part Digitally signed by POOJA POOJA AGGARWAL AGGARWAL Date: 2024.02.28 LC No.248/2016 (Old No. 183/2015) 16:28:05 +0530 Rajesh Kumar vs. Shirdi Industries Ltd. Page No. 16 of 25 thereof in excess of six months; and • serve notice in the prescribed manner on the appropriate Government.
43.As already noted above, in Ex WW1/A, the claimant/ workman has categorically testified to the effect that the management neither gave nor offered any notice or pay in lieu thereof or even retrenchment compensation which testimony has gone un-rebutted as the claimant/workman was not cross-examined on this aspect for reasons best known to the management. The fact that the claimant/workman was not paid any retrenchment compensation, leave encashment or other legal dues has also been admitted by MW1 during his cross-examination.
44.Hence, it stands proved that no notice or pay in lieu thereof had been given or even offered by the management to the claimant/workman at the time of terminating his services and there was also no payment of retrenchment compensation to the workman/ claimant and thus the non- compliance of Section 25F Industrial Disputes Act, by the management at the time of terminating the services of the claimant stands proved rendering the termination of the workman/claimant by the management as illegal.
45.Further, the testimony of WW1 Sh Rajesh as to his services having been terminated by the management without issuing seniority list and without permission of the appropriate government as well as his testimony as to his Digitally signed by POOJA POOJA AGGARWAL AGGARWAL Date: 2024.02.28 16:28:18 +0530 LC No.248/2016 (Old No. 183/2015) Rajesh Kumar vs. Shirdi Industries Ltd. Page No. 17 of 25 juniors still continuing with the management performing the same work and by the newly appointed employees has not been contradicted by the management by way of cross- examination and the same has gone un-rebutted and thus the non-compliance of Section 25G and 25H of the Industrial Disputes Act also stands proved.
46.It is thus held that the claimant/ workman has discharged the onus cast upon him which has not been rebutted by the management and the issue no. (iv) is accordingly decided in favour of the claimant and against the management.
Issue no. (v): Whether the workman is entitled to the relief claimed in the statement of claim? and Issue no.(vi): Relief
47.The workman/ claimant has claimed reinstatement with all consequential benefits.
48.In Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324, the following legal proposition has been enumerated by the Hon'ble Supreme Court:
"38. The propositions which can be culled out from the aforementioned judgments are:
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, Digitally signed by POOJA POOJA AGGARWAL LC No.248/2016 (Old No. 183/2015) AGGARWAL Date: 2024.02.28 16:28:32 +0530 Rajesh Kumar vs. Shirdi Industries Ltd. Page No. 18 of 25 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 averments 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 .....
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 victimizing the employee or workman, then the concerned Court or Tribunal 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 always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no Digitally signed by POOJA POOJA AGGARWAL AGGARWAL Date: 2024.02.28 LC No.248/2016 (Old No. 183/2015) 16:28:45 +0530 Rajesh Kumar vs. Shirdi Industries Ltd. Page No. 19 of 25 justification to give 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 ...
38.7 ...."
(Emphasis supplied)
49.In Jasmer Singh v. State of Haryana, (2015) 4 SCC 458, it has been held by the Hon'ble Supreme Court that:
"20. In view of the aforesaid statement of law the setting aside of the Award by the learned Single Judge which is affirmed by the Division Bench is vitiated in law as the same is contrary to the judgments of this Court referred to supra, upon which the learned counsel for the appellant has rightly placed reliance in support of the correctness of the finding recorded by the labour court on the various issues, particularly the finding of fact that the workman has worked for more than 240 days in a calendar year and termination order is void ab initio in law for non- compliance of Section 25- F (clauses (a) and (b)), 25-G and 25-H of the Act, therefore, the Industrial Tribunal-cum-Labour Court has rightly set aside the order of termination of services of the workman and awarded the order of reinstatement with continuity of service and full back wages.
21. The said relief in favour of the appellant- workman, particularly the full back wages is supported by the legal principles laid down by this Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D. ED.) & Ors, wherein the Division Bench of this Court to which one of us was a member, after considering three-Judge Bench decision, has held that if the order of termination is void ab initio, the workman is entitled to full back wages.
22. The relevant para of the decision is extracted hereunder:-
"The very idea of restoring an employee to the position which he held POOJA before Digitally signed by POOJA LC No.248/2016 (Old No. 183/2015) AGGARWAL AGGARWAL Date: 2024.02.28 16:28:58 +0530 Rajesh Kumar vs. Shirdi Industries Ltd. Page No. 20 of 25 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. With the passing of an order which has the effect of severing the employer-employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. 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 Digitally signed by POOJA POOJA AGGARWAL AGGARWAL Date: 2024.02.28 LC No.248/2016 (Old No. 183/2015) 16:29:10 +0530 Rajesh Kumar vs. Shirdi Industries Ltd. Page No. 21 of 25 including the emoluments".
(Emphasis supplied)
50.In the present case, as discussed above in issue no. (iii), the management has terminated the services of the claimant/ workman illegally without complying with the provisions of the Industrial Disputes Act and thus the workman is held to be entitled to reinstatement in service with continuity in service.
51.In respect of the quantum of back wages to be awarded, it is noted that as per the testimony of the claimant/workman in Ex. WW1/A, he has not been able to obtain any employment either better or worse since 19.05.2014 till date. The management has failed to discredit his testimony through cross-examination nor has it led any evidence to suggest that workman was gainfully employed anywhere after 19.05.2014.
52.Though during the course of final arguments, it had been vehemently argued on behalf of the management that the claimant/workman has been reinstated by the management on 03.06.2014, however, the fact that the claimant/ workman was not so reinstated stands proved from the admission of the MW1 in his cross-examination whereby he has admitted that the workman was not taken back despite filing of claim before the ALC (Assistant Labour Commissioner) which had been filed by the claimant after his termination. Digitally signed by POOJA POOJA AGGARWAL AGGARWAL Date:
2024.02.28 16:29:23 +0530 LC No.248/2016 (Old No. 183/2015) Rajesh Kumar vs. Shirdi Industries Ltd. Page No. 22 of 25
53.Further, it is noted that though the management has placed reliance on Ex. MW1/E to contend that the management had been informed as to the claimant having entered the office and marked his attendance forcibly from 20.05.2014 to 02.06.2014, but even this letter remains unproved as the author thereof has not been examined.
54.Be that as it may, even if for the sake of arguments, it is assumed that the document had been proved, it would still not have proved that the claimant had been reinstated w.e.f. 03.06.2014 because as per the testimony of MW1 in cross-examination, the last attendance of the workman was marked on 16.05.2014 as per their record, but the management has failed to put forth any reason for marking the attendance of the claimant/ workman only till 16.05.2014 and not till 19.11.2014 on which date the termination letter i.e. Ex MW1/W1 (earlier Mark A/ Ex WW1/9) had been issued or even till 23.06.2014 i.e. the date from which the management had alleged that the claimant/workman had absented himself but failed to prove such assertion. This absence of explanation is indicative of the falsity of the stand of the management as to claimant/ workman having been reinstated by them and does not affect the assessment of award of back wages.
55.It is also pertinent to note here that in his cross-
examination, WW1/ claimant has admitted that he had reported for duty with the management on 11.06.2014 and during his cross-examination, WW1/ workman/ claimant Digitally signed by POOJA POOJA AGGARWAL LC No.248/2016 (Old No. 183/2015) AGGARWAL Date: 2024.02.28 16:29:35 +0530 Rajesh Kumar vs. Shirdi Industries Ltd. Page No. 23 of 25 has also relied upon one e-mail i.e. Ex WW1/8 dated 11.06.2014 by virtue of which the management had asked him not to attend office from today i.e. 11.06.2014 till 23.06.2014 mentioning therein that he would be entitled to salary thereof and no leave would be adjusted against his absence. However, it appears that the same was merely an attempt to create a paper trail since there is no material on record to show that any salary was paid for the said period and thus even this document/ testimony of WW1 is not sufficient to deny full back wages to the claimant/ workman.
56.Thus, in view of the legal principles enumerated above, the workman is held entitled for reinstatement along with full back wages other consequential benefits.
57.The claim of the claimant is accordingly allowed. The management is directed to re-instate the claimant/workman to the post where he was working on the date of termination with full back wages on his last drawn wages w.e.f 19.05.2014 i.e date of termination till date along with other consequential benefits. Issue no. (v) and (vi) are decided accordingly.
58.Copy of Award be uploaded on the website of RADC and be also sent to the concerned department through proper channels as per rules.
59.File be consigned to the record room after necessary Digitally signed by POOJA POOJA AGGARWAL LC No.248/2016 (Old No. 183/2015) AGGARWAL Date: 2024.02.28 16:29:47 +0530 Rajesh Kumar vs. Shirdi Industries Ltd. Page No. 24 of 25 Digitally signed compliance. by POOJA POOJA AGGARWAL Announced in the Open Court AGGARWAL Date:
2024.02.28 today i.e. 28th February 2024 16:30:17 +0530 (POOJA AGGARWAL) Presiding Officer Labour Court-01, Rouse Avenue District Courts, New Delhi LC No.248/2016 (Old No. 183/2015) Rajesh Kumar vs. Shirdi Industries Ltd. Page No. 25 of 25