Delhi District Court
The vs The on 25 March, 2008
1
IN THE COURT OF SH. HARISH DUDANI: PRESIDING OFFICER, LABOUR
COURT NO. XVII, KARKARDOOMA COURTS, DELHI .
ID NO. 83/06
BETWEEN
The Workman
Sh. Ramdass Sharma S/o Sh. Rameshwar Dayal Sharma
C/o Jai Jawan Jai Kishan Export Karamchari Union,
362, Bal Mukund Khand, Giri Nagar,
Kalkaji,
New Delhi-110019.
AND
The Management of
M/s. Haldi Ram Products Pvt. Ltd.,
1454/2, Chandani Chowk,
Delhi-110006.
Date of institution of the case : 07.01.2002
Date of reserving the award : 20.03.2008
Date of announcement of award : 25.03.2008
AWARD
1.The National Capital Territory of Delhi through its Secretary (Labour) vide reference no. F.24(3726)/2001/Lab.27907-11 dt. 18.12.01 referred the dispute for adjudication between the management of M/s. Haldi Ram Products Pvt. Ltd. and its workman Sh. Sh. Ramdass Sharma S/o Sh. Rameshwar Dayal Sharma in the following terms of reference:-
"Whether Sh. Ram Dass Sharma S/o Sh. Rameshwar Dayal Sharma has received his full and final claim after leaving the 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 Contd....2
monetary relief alongwith consequential benefits in terms of existing laws/Government Notifications and to what other relief is he entitled and what directions are necessary in this respect?"
2. The workman has filed statement of claim stating therein that he has been employed with the management for the last ten years as Guard and his last drawn salary was Rs.2600/- per month and workman was working sincerely and diligently to the satisfaction of the management and never gave any chance of complaint to the management. The management was not providing legal facilities i.e. appointment letter, pay slip, leave card, ESI, Provident Fund etc. and the workman was orally demanding the same from the management on which the management started remaining annoyed and terminated the services of the workman on 08.09..2000 without issuing any notice or charge-sheet. On 08.09.2000, workman sent notice of demand to the management but the management did not sent any reply to the same and workman was not reinstated. On 29.09.2000, the workman made complaint to the authorities through Union, but no settlement was arrived. It is prayed that an award be passed thereby reinstating the workman in service with full back wages and continuity of service.
3. The notice of statement of claim was issued to the management and the management has filed WS/Reply and has contested the same. In the WS/Reply management has stated that the claimant was initially engaged w.e.f. 01.08.1997 and for his personal reasons he left the job and took his full and final dues on 18.02.2000 and on acceptance of full and final dues by the Contd......
3workman the relationship of employer and employee came to an end. Thereafter, the claimed joined the management w.e.f. 01.08.2000 and worked only for about one month with the management till 7.9.2000 and the claimant himself abandoned the job of his own by remaining unauthorised absent with effect from 8.9.2000 without prior intimation or sanction of leave. The claimant has not completed 240 days of service with the management. The management sent notices dt. 21.09.2000 and in October' 2000 thereby calling upon him to explain his conduct and report for duty but the claimant has not turned up for duty. It is stated that the management had mentioned the aforesaid facts before the Conciliation Officer also but the reference has been made by the appropriate government in mechanical manner. It is denied that the claimant was in the employment of management for last ten years and his last drawn salary was Rs. 26,00/- per month. It is stated that claimant was paid Rs. 2250 + 171/- per month. It is stated that claimant was again engaged w.e.f. 01.08.2000 as Security Guard and abandoned the job of his own w.e.f. 08.09.2000 by remaining unauthorised absent. It is stated that claimant is not entitled to any benefit.
4. The workman has filed rejoinder to the written statement of management. In the rejoinder workman has reiterated the contents of statement of claim and controverted the allegations of management as stated in the WS.
5. From the pleadings of parties following issues were framed by my Ld. Predecessor on 14.07.2004:
1. As in terms of reference.
Contd......
4
6. To prove his case workman examined himself as WW1.
7. The management examined Sh. Hari Prasad Chaudhary, Personnel Manager as MW1 and Sh. Praveen Pahuja, Handwriting and Finger Print Expert as MW2
8. I have heard Authorized Representative for the management and carefully perused record. My findings on specific issues are as under:- ISSUE NO. 1
9. In the statement of claim the workman has stated that he has been employed with the management as Guard for the last 10 years and his last drawn salary was Rs.2600/- per month and the management was not providing the legal facilities and he was demanding the same from the management on which management got annoyed and terminated the services of workman illegally on 08.09.2000. In the W.S. the management has stated that the workman was initially engaged w.e.f. 01.08.1997 and the workman left the job for his personal reasons and took his full and final dues on 18.02.2000 and thereafter the claimant once again joined the management w.e.f. 01.08.2000 and he worked upto 07.09.2000 and the workman remained unauthorizedly absent w.e.f. 08.09.2000 without prior permission and/or sanction of leave as such he has not completed 240 days of service with the management.
10. In order to prove his case the workman appeared in the witness box as WW1 and adduced evidence by way of affidavit Ex. WW1/A.
11. In order to prove its contention that the services of workman were engaged w.e.f. 01.08.1997 and the workman took his full and final dues on 18.02.2000 and thereafter the workman again joined the management w.e.f.
Contd......
501.08.2000 and he abandoned the services w.e.f. 08.09.2000, the management examined Sh. Hari Prasad Chaudhary, Personnel Manager as MW1 who adduced evidence by way of affidavit Ex. MW1/A. The workman/WW1 denied suggestion of management in his cross - examination to the effect that his services were engaged w.e.f. 01.08.1997. The management has pleaded that an appointment letter was issued to the workman. In the cross - examination the workman was confronted with Bio - Data Form Mark M1 and appointment letter Mark M2 and the workman denied his signatures on both the said documents. In the cross - examination the workman was confronted with one receipt of full and final settlement dt. 18.02.2000 Mark M3 and the workman denied his signatures on the same also. In order to prove that Mark M1 to M3 bear signatures of workman the management has examined Sh. Parveen Pahuja, Handwriting and Finger Print Expert as MW2. MW2 has filed his report Ex. MW2/1 wherein he has stated that he has compared the disputed signatures of the workman on Mark M1 to M3 with admitted signatures of workman appearing on his affidavit Ex. WW1/A dt. 13.10.2004, the reply filed by the workman dt. 13.10.2004, the signatures of workman on the application under Section 151 C.P.C. dt. 13.04.2006, the signatures of workman as appearing on statement dt. 03.08.2004, the signatures of workman on application dt. 01.09.2006 and the specimen signatures of the workman taken on 01.09.2006 and he has come to the conclusion that Mark M1 to Mark M3 bear signatures of workman. MW2 has also filed on record the photographs of the admitted and disputed signatures of the workman Ex. MW2/2 collectively for the purposes of comparison. On Contd......
6perusal of the affidavit and the report of the MW2 it was deemed necessary for the court to compare the admitted and disputed signatures of the workman in view of the Section 45 of the Evidence Act and a comparison of signatures of workman as appearing on the record at various places i.e on his statement recorded before the court as WW1, specimen signatures of the workman taken in the court, signatures of workman appearing on his affidavit Ex. WW1/A and on the statement of claim with Mark M1 to M3 clearly show that the admitted signatures of workman as appearing on record do not tally with the disputed signatures of workman on Mark M1 (Ex. MW1/4) Mark M2 (Ex. MW1/1) and Mark M3 (Ex. MW1/5). MW2 alongwith his report has filed the photographs showing the enlarged disputed and admitted signatures of the workman and a bare perusal of the said photographs shows that neither the formation of any letter or the formation of whole disputed signatures do not resemble with the admitted signatures of the workman. The report of the Handwriting and Finger Print Expert/MW2 does not inspire confidence and it seems that he has given his opinion in favour of the management as his services have been engaged by the management. The management has also not adduced any evidence to the effect that the copy of the alleged appointment letter Ex. MW1/1 (Mark M2) dt. 01.08.1997 was supplied to the workman and the workman acknowledged the receipt of the same. The MW1 stated in the cross - examination that the workman had signed a copy of appointment letter in his presence. However, appointment letter Mark M2 (Ex. MW1/1) has not been signed by MW1 as a witness. The management has also not produced the attendance records or the wages records for the month of August 1997 or prior to that in order to Contd......
7prove that the workman was not in the employment of management prior to 01.08.1997 and that he was taken on the rolls of management w.e.f. 01.08.1997 on that account his name has been mentioned in the attendance records and wages records w.e.f. 01.08.1997. In the cross - examination of WW1 a suggestion was given to the effect that Bio-Data Form Mark M1 (Ex. MW1/4) bears correct particulars of the workman. The column 11 of the Bio- Data Form Mark M1 (MW1/4) requires details of previous experience to be mentioned but the said column does not contain any details regarding the previous employment of workman. No suggestions have been given to WW1 in the cross-examination that he was not previously employed with any other employer on that account column no. 11 of Mark M1 (Ex. MW1/4) does not bear any particulars of previous employer. It is to be noted that in Mark M1 to M3 the address of the workman is mentioned as J - 718, Kartar Nagar, Gali No. 3, Asmanpur, Delhi, but the workman/WW1 stated in the cross- examination that is address at the relevant time was J - 718, Gali No. 2, Kartar Nagar, Delhi. The management has not suggested to the workman in the cross-examination that Mark M1 (Ex. MW1/4), Mark M2 (Ex. MW1/1) and Mark M3 (Ex. MW1/5) bear incorrect address of the workman as he had furnished the said incorrect address to the management. As per case of the management, receipt dt. 18.02.2000 Mark M3 (Ex. MW1/5) was executed in the presence of two witnesses i.e Sh. Manik Lal Rawat and Sh. Raja Ram. However, the management has not produced the said witnesses who have Contd......
8been cited on Mark M3 (Ex. MW1/5) in order to prove that the workman had voluntarily left the service of management on 18.02.2000 after receiving a sum of Rs.4415/- as full and final settlement amount in their presence. The management has also not produced books of accounts maintained by the management in its regular course of business to prove that a sum of Rs.4415/- was paid to the workman on 18.02.2000 and the same was duly reflected in the books of accounts of the management. The plea of the management is that the management in its Form which were filed with PF authorities and ESI, had informed them that the workman had left the service of management on 18.02.2000 and the management has relied on the copies of the Form No. 10 in respect of Employee's Provident Fund Scheme, 1952 Ex. MW1/6 and copy of Form 6 in respect of Employee's State Insurance Corporation Ex. MW1/7. Although the management is relying on Ex. MW1/6 and Ex. MW1/7 in order to prove that the Provident Fund authorities and ESI authorities were informed that the workman had left the employment on 18.02.2000 but the management has not proved that Ex. MW1/6 and Ex. MW1/7 were in fact filed with the authorities mentioned therein and that Ex. MW1/6 and Ex. MW1/7 are the true copies of the Forms which were filed with the authorities mentioned therein. It is also to be noted that Ex. MW1/6 and Ex. MW1/7 are only in one page and the complete documents of Ex. MW1/6 and Ex. MW1/7 have not been filed by the management on record in order to prove that if the said documents were filed with the authorities mentioned therein then the said documents were filed Contd......
9on which dates. The management has not proved that if Ex. MW1/6 and Ex. MW1/7 were filed with the authorities mentioned therein then the same were filed prior to the date when the workman raised dispute of his service with the present management and the same were not filed with the authorities mentioned therein after the date of raising dispute by the workman in order to defeat the claim of the workman.
12. The plea of the management is that the workman left the services of management w.e.f. 08.09.2000. In para 3 of reply on merits in the W.S. the management has stated that the workman has not reported for duty despite two notices. The management has relied on copy of notice dt. 21.09.2000 Ex. MW1/10 and copy of notice dt. 20.10.2000 Ex. MW1/11. In the notice Ex. MW1/10 the management has not stated as to on which address of the workman the same was dispatched. The management has not proved that notices Ex. MW1/10 and Ex. MW1/11 were posted to the workman at the correct address of the workman and despite receipt of the said notices the workman did not report for duties. MW1 stated in the cross-examination that the notices were sent to the workman on his address available in the office record. On Ex. MW1/11 the management has mentioned the address of the workman as J - 7/8, Kartar Nagar, Gali No. 3, Asmanpur, Delhi. The management has itself filed on record the appointment letter Ex. MW1/1 and Bio - Data Ex. MW1/4 on which the address of the workman is mentioned as J
- 718 and not as J - 7/8 as mentioned on Ex. MW1/11. In the cross- examination of workman/WW1 a suggestion was given to the effect that Contd......
10address of the workman is J - 718, Gali No. 3, Kartar Nagar, Delhi. The management has not suggested to workman/WW1 in the cross-examination that his address is J - 7/8 (the address which is mentioned on notice Ex. MW1/11). The management has not explained that if the management had address of workman as J - 718 as mentioned on Ex. MW1/1 and Ex. MW1/4 then why the notice Ex. MW1/11 was dispatched at the address of J - 7/8. The management has not proved any postal receipt or UPC receipt in order to prove that the notices Ex. MW1/10 and Ex. MW1/11 were dispatched to the workman and on Ex. MW1/11 the management has mentioned the wrong address of the workman. In these circumstances also it cannot be said that the notices Ex. MW1/10 and Ex. MW1/11 were served on the workman. The management has failed to prove that the notices Ex. MW1/10 and Ex. MW1/11 were sent to the workman whereby workman was called upon to join duties of the management.
13. In para 6 of the affidavit Ex. MW1/A the management has stated that they paid salary for August 2000 and 7 days for September 2000 to the workman on 12.12.2000 before the Labour Inspector and vouchers for the same are Ex. MW1/15 and Ex. MW1/16. It is to be noted that the case of the management is that the workman has been absenting from duties w.e.f. 08.09.2000 and the workman has pleaded that his services have been terminated w.e.f. 08.09.2000. The management has not examined the Labour Inspector in whose presence payments were made to workman on 12.12.2000 as per vouchers Ex. MW1/15 and Ex. MW1/16. In the cross - examination of workman/WW1 also no suggestions were given to the effect that payments Contd......
11were made to the workman on 12.12.2000 in presence of Labour Inspector vide vouchers Ex. MW1/15 and Ex. MW1/16 and the workman was offered employment by the management in the presence of the Labour Inspector, but the workman did not accept the offer of employment made by the management. The management did not prefer to confront the workman in the cross-examination with the vouchers Ex. MW1/15 and Ex. MW1/16 in order to prove that the same bear signatures of the workman and the payments were made to workman vide said vouchers on 12.12.2000 and the workman was offered employment by the management before the Labour Inspector but the workman did not accept the offer of employment made by the management. The management has stated in para 7 of the affidavit Ex. MW1/A that the workman filed claim before the Conciliation Officer and the management filed reply to the same and the reply filed by the management before Asstt. Labour Commissioner is Ex. MW1/17 whereby Asstt. Labour Commissioner was requested to direct the workman to report for duties. In the cross-examination of workman/WW1 no suggestions were given to the effect that the management had participated in the conciliation proceedings and the management filed reply to the claim of the workman and the same is Ex. MW1/17 and by the said reply the Asstt. Labour Commissioner was requested to direct the workman to report for duties. The management has not summoned the record of conciliation proceedings in order to prove that the reply Ex. MW1/17 was filed by the management before the Conciliation Officer and that the management had offered employment to the workman in the conciliation proceedings, but the workman did not accept the offer of employment made by the management. The management has not Contd......
12explained that if proceedings were pending before the Conciliation Officer then why the alleged payments vide vouchers Ex. MW1/15 and Ex. MW1/16 were made on 12.12.2000 when the case was pending before the Conciliation Officer and why in the reply Ex. MW1/17 which was allegedly filed by the management before the Conciliation Officer it was not mentioned that the payments had been made to workman on 12.12.2000 in presence of the Labour Inspector. The management has failed to prove that the notices Ex. MW1/10 and Ex. MW1/11 were sent by the management thereby calling upon the workman to resume duty or that any offer of employment was made to workman by the management before the Labour Inspector or in the conciliation proceedings and the workman did not accept the offer of employment made to him by the management. The management has failed to prove that the workman voluntarily left the services of the management on 18.02.2000 and thereafter he again joined the services of the management on 01.08.2000 and thereafter the workman voluntarily absented from the duties w.e.f. 08.09.2000. The evidence adduced on record proves that it is the management which has denied duties to the workman w.e.f. 08.09.2000 and the management has made a lame excuse that the workman had absented from the duties w.e.f. 08.09.2000 and that the workman has not worked continuously for 240 days in a year with the management.
14. In D.K. Yadav v. JMA Industries Ltd. 1993-II-LLJ-696 it was held that "the law must therefore be now taken to be well settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Art. 14 and such law would be liable to be tested on the anvil of Art. 14 and the Contd......
13procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Art. 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi-judicial enquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or, to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial enquiry and not to administrative enquiry. It must logically apply to both."
15. In The Executive Engineer, Irrigation Division-I, Jaipur & Anr. v. Nar Narain 1994-LLR-538 it was held that "the employee is always in a disadvantageous position vis-a-vis the employer. He is not in a position to dictate the terms of employment qua the employer. It is the sweet-will of the employee to engage a workman on the terms and conditions which suit the employer. However, when a workman leaves service after working for a year or more, the natural conduct which is expected of the employer is to make an enquiry as to why the workman is not coming on duty."
16. In Kendriya Vidhyalya Sanghathan and Anr. v. S.C. Sharma 2005- LLR-275, it was held by Hon'ble Supreme Court that for terminating services without holding the enquiry a conclusion has to be recorded that it was not reasonably practicable to hold the enquiry proceedings and since such a finding had not been recorded by the authorities, the termination was illegal.
Contd......
14
17. Section 2(oo) of the Industrial Disputes Act 1947 reads as under:
"retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include-
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non-
renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill-health.
18. Section 25F of the Industrial Disputes Act 1947 provides that:
Conditions precedent to retrenchment of workmen. - No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and Contd......15
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.
19. The management has not proved that they conducted any enquiry and the management has also not proved that any conclusion was recorded by the management that it was not reasonably practicable to hold the enquiry proceeding. It is held accordingly that the services of workman have been terminated illegally by the management.
20. The next question which is to be decided is regarding the relief which is to be given pursuant to illegal termination of services of workman.
21. In Kendriya Vidhyalaya Sanghathan and Anr. vs. S. C. Sharma 2005-LLR-275 it was held that "for entitlement of back wages on reinstatement of a employee, the employee has to show that he was not gainfully employed and the initial burden is on him. Thereafter, if the workman places materials in that regard, the employer can bring on record materials to rebut the claim".
22. In U.P. State Brassware Corpn. Ltd. & Anr. vs. Udai Narain Pandey 2006-LLR-214, it was held that "no precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed since it depends upon the facts and circumstances of each case, as such it will not be correct to contend that it is automatic hence should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of the Industrial Disputes Act."
Contd......
16
23. In decision dt. 10.2.2006 in LPA No. 1647/05 titled as "M/s Lords Homeopathic Laboratories Pvt. Ltd. v. Ms. Lissy Unnikunju & ors. wherein our own Hon'ble High Court relied on decision in Employers, Management of Central P & D Inst. Ltd. v. Union of India AIR 2005 SC 633. where the Hon'ble Supreme Court observed that it is not always mandatory to order reinstatement after holding the termination illegal, and instead compensation can be granted.
24. In the statement of claim the workman has not stated that he is unemployed since the date of termination of his services by the management or that despite efforts he could not secure alternate employment. The workman adduced evidence by way of affidavit Ex. WW1/A and in the affidavit Ex. WW1/A also the workman has not stated that he is unemployed since the date of termination of his services by the management. In para 7 of affidavit Ex. WW1/A the workman has stated that he has worked more than 10 years with the management and he is entitled to receive all the legal facilities provided under provisions of law.
25. In Municipal Council, Sujanpur v. Surinder Kumar 2006 LLR 662 Hon'ble Supreme Court held that it is well settled principle that the burden of proof, having regard to the principles analogous to section 106 of the Evidence Act, lies upon the concerned workman to prove that he was not gainfully employed after his alleged termination i.e. during pendency of the industrial dispute.
26. In case titled as Thankur Singh Rawat and others v. Jagjit Industries Ltd. 2006-I LLJ 775 our own Hon'ble High Court held that if there is any Contd......
17pleading of workman remaining unemployed from termination of his services till passing of award and neither any evidence is let in to prove such employment. The claim of the workman for back wages shall not be sustainable.
27. In Municipal Corporation, Sagar v. Presiding Officer, Labour Court, Sagar and Anr. 2006 LLR 549 it was held that back-wages on reinstatement of a workman is not a rule of thumb and in view of the Supreme Court judgement, the burden of proof lies upon the workman to prove that he remained unemployed after termination of his service whereas in the present case, the workman did not whisper a word about his unemployment and as such the Award of the Labour Court granting full back-wages is set aside.
28. The workman has neither stated in his statement of claim nor in his affidavit Ex. WW1/A that he is unemployed since the date of termination of his services by the management or that he could not secure alternate employment despite efforts. The workman has neither pleaded nor proved that he is unemployed since the date of termination of his services by the management. In the circumstances, no order of reinstatement of workman in service and no order regarding back wages is being passed. The management has illegally terminated the service of workman and moreover, the management has relied on documents i.e Mark M1 to Mark M3 which the management failed to prove that the same have been executed by the workman, in order to set-up the false defense that the workman had left the services of management on 18.02.2000 in the circumstances, interest of justice would be served if the workman is compensated in terms of money. In the totality of circumstances, the Contd......
18workman shall be entitled to compensation of a sum of Rs.50,000/- (Rupees Fifty Thousand Only) towards satisfaction of all his dues towards his employment with the management and cost of these proceedings. Reference stands answered accordingly. Copies of this award be sent to appropriate Govt. for publication as per law. File be consigned to record room. ANNOUNCED IN THE OPEN COURT.
TODAY i.e. ON 25.03.2008.
` (HARISH DUDANI)
PRESIDING OFFICER
LABOUR COURT NO. XVII
KARKARDOOMA COURTS,
DELHI
19
ID NO. 83/2006
25.03.2008
Pr. None.
Award dictated and announced separately. Copies of award be sent to appropriate Government for publication as per law. File be consigned to record room.
POLC/25.03.2008