Delhi District Court
Sh. Nageshwar Prasad Gupta vs M/S Shaiv Bpo Services on 8 February, 2011
BEFORE THE COURT OF SH RAKESH KUMAR SHARMA
PO : LABOUR COURT : KKD : DELHI
DID No. 106/09
Unique ID No. 02402C0338282009
IN THE MATTER OF :
Sh. Nageshwar Prasad Gupta
S/o Sh. Banarsi Dass Gupta
lC/o Sh. S.K. Jain
Chamber No. 363, Western Wing
Tis Hazari Courts
Delhi-110054 ..............Workman
versus
M/s Shaiv BPO Services
58, Second Floor
Rani Jhansi Road
Opp. Mata Jhandewalan Temple
New Delhi-110055 ...........Management
DATE OF FILING : 17.11.2009
ARGUMENTS CONCLUDED ON : 03.02.2011
AWARD MADE ON : 08.02.2011
AWARD
1.This is a direct industrial dispute filed by the workman against the management U/s 10(4A) of the Industrial Disputes Act, 1947 (hereinafter "the Act"). It is stated in the claim that the workman was in permanent and continuous employment with the management since 01.02.2008, on the post of field workman. His last drawn wages were 1/5 Rs. 6,500/- per month. The management had been resorting to unfair labour practice since vary beginning and was flouting various provisions of Labour Legislation. The workman was neither issued an appointment letter nor service record was used to be maintained. No PF or ESI facilities were extended to him. No bonus were paid nor any leave facility was provided to the workman. When the workman demanded his legal entitlements from the management verbally, the management, instead of providing the same, withheld earned wages of the workman w.e.f. 01.07.2009. On 16.09.209, when the workman reported for duty and demanded his due earned wages, the Field Manager and Office Manager, refused to take the workman on duty, saying that his services were no more required. Hence, the services of the workman were terminated by the management orally, without assigning any reason and without any justification in utter disregard of principles of natural justice, arbitrarily and in violation of mandatory provisions of the Act. Hence, the termination is illegal and void ab-initio. Despite service of the demand notice dated 29.09.2009, sent by the workman, the management has neither reinstated the workman nor paid him his wages. Despite his best efforts, the workman is unemployed since the date of his termination. Hence, the present dispute. The workman 2/5 has claimed reinstatement alongwith his due earned wages with continuity of service with full back wages alongwith all consequential benefits.
2. Notice of the claim was issued to the management. The management failed to appear before the Court and even to file its written statement despite service and was proceeded ex-parte.
3. The workman examined himself as the only witness in support of his case.
4. I have heard the AR of the workman and have also gone through the record.
5. Section 25-F of the Act, is as follows :
"25.F : 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 ;
(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 (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)." (underlining by me).3/5
6. In his affidavit filed in examination in chief, the workman fully supported his case as stated in the statement of claim and referred to photocopy of a cheque issued by the management towards his wages for the month of June, 2009 as Ex. WW 1/1, demand notice dated 29.09.2009 as Ex. WW 1 /2, its RC receipt as Ex. WW 1/3, AD card as Ex. WW 1 /4 and UPC receipt as Ex. WW 1/5.
7. The testimony of the workman goes unrebutted, unchallenged and uncontroverted as there is no cross-examination of the workman at all. There is nothing on record to disbelieve the testimony of the workman, particularly when there is not even a written statement filed by the management.
8. It is a settled law that strict rules of evidence are not applicable in the proceedings under the Act. WW 1 is the photocopy of the cheque issued by the management in favour of the workman. In the statement of claim as well as in his affidavit filed in examination in chief, the workman has specifically stated that the cheque was issued towards his salary for the month of June, 2009. Hence, the relationship of employer and employee between the parties stands proved on record.
9. It is stated in the affidavit of the workman that he worked with the management from 01.02.2008 to 15.09.2009 i.e. for a period of 4/5 more than one year. Hence, Section 25-F of the Act, is applicable in the facts and circumstances of the case.
10. Since, the provision of Section 25-F are couched in mandatory form retrenchment of the workman is void ab-initio and non-est for non compliance thereof. Hence, the case of the workman stands proved on record.
11. In view of the above discussion, the claim is allowed. Consequently, I pass the following award :
AWARD The management is directed to reinstate the workman with full back wages from the date of termination with all consequential benefits within 30 days of the publication of this award.
A copy of this award be sent to the appropriate government for publication.
File be consigned to RR.
Dictated to the Steno and announced in the open court on 08.02.2011 (A.S. JAYACHANDRA) POLC/KKD/DELHI/XVII 5/5