Delhi District Court
Aadhar Card And Phone Number Of Workman vs M/S Baptist Church Trust Association) ... on 31 July, 2023
IN THE COURT OF MS. MANISHA TRIPATHY
PRESIDING OFFICER : LABOUR COURT-III
ROUSE AVENUE COURTS COMPLEX : NEW DELHI
CNR No.DLCT-13-007773-2019
Ref. No. :F.24(133)/117/ND/Co.II/18/Lab./1966-68
Dated : 28.08.2019
L.I.R. No. 3062/2019
Sh. Johnson Masih, S/o Sh. Lazar Masih,
Aged about 34 years,
R/o H. No.N-71/B-218,
Purani Chandrawal, Majnu Ka Tila,
Civil Line, Delhi - 110054.
Through Sh. Jai Mangal (Authorized Representative)
Engineering and General Karmchari Lal Jhanda
Union (Regd.), 7704, Dharmpur Laj,
Ghantaghar Sabzimandi, Delhi-110007.
Contact No.9899450311)
The requisite details of the workman in compliance of judgment
of Hon'ble High Court of Delhi titled as Director General of
Works (CPWD) Vs. Laljeet Yadav & Ors. W.P.(C) No.2540-
2021, DOD 16.07.2021 are as follows:
Permanent Address of the workman:
Details no furnished.
Any other address of workman available on record:
Details not furnished.
Name and Mobile Number of A.R. for workman:
Sh. Girja Shankar Sharma, Ld. AR for workman,
Mobile No.9013295006 / 7.
Details of one of immediate family member of the workman:
Details not furnished.
Aadhar Card and Phone Number of workman:
Aadhar Card No.3765 1149 5857
Mobile No.9718886364. .....Workman.
(LIR No.3062/2019) (Johnson Masih Vs. M/s Baptist Church Trust Association) Page No.1 of pages 15
Digitally signed by
MANISHA MANISHA TRIPATHY
TRIPATHY Date: 2023.07.31
15:47:51 +0530
Versus
M/s Baptist Church Trust Association,
(Christian Minority Organization),
21-Raj Niwas Marg, Delhi-110054.
(Ms. Kirti Madan and Sh. V. K. Singh, Ld. Authorized
Representative of the Management)
(Mobile No.9818849440 & 9810144934)
(Email ID of management : [email protected])
.....Management.
Date of Institution of the case : 04.12.2019
Date on which Award is passed : 31.07.2023
-:A W A R D:-
1.The workman Sh. Johnson Masih, raised an industrial dispute regarding the termination of his services by the management of M/s Baptist Church Trust Association. The appropriate Government on being satisfied regarding the existence of Industrial Dispute between the parties, made a reference for adjudication. The said reference is as under:-
"Whether the workman Sh. Johnson Masih S/o Sh. Lazar Masih has abandoned his services or his services have been terminated illegally and / or unjustifiably by the management; if so what relief is he entitled and what direction are necessary in this respect?"
2. Thereafter, notice was issued to the workman, who filed statement of claim. Brief facts necessary for adjudication of present dispute as alleged by the workman are that he had been working with the management since July 2013 as Pantry Boy/Chaprasi on the last drawn salary of Rs.14,300/- per month (LIR No.3062/2019) (Johnson Masih Vs. M/s Baptist Church Trust Association) Page No.2 of pages 15 Digitally signed by MANISHA MANISHA TRIPATHY TRIPATHY Date: 2023.07.31 15:48:04 +0530 but the management had deliberately issued Appointment Letter to him in April 2015. During the course of his employment, he discharged his duties honestly and diligently to the entire satisfaction of the management and never gave any chance of complaint to the management and had clean service record. However, the management intentionally deprived him of the legal facilities such as appointment letter, attendance card, leave book, pay slip, encashment of yearly and casual leaves, increment, bonus, ESI facility and overtime wages. On 01.10.2016, upon his persistent oral demand for the aforementioned legal facilities and yearly increment, Sh. Sumit Nath, Owner/Manager, got annoyed and terminated him from the service, without issuance of any prior notice and payment of service compensation, gratuity amount or without issuance of charge sheet and conducting of any domestic inquiry against him and also withheld his earned wages for the month of September 2016, in violation of Section 25F of the Industrial Disputes Act, 1947. Thereafter, he visited the management regularly with the intention of continuing his duty but he was neither taken back on job nor paid the earned wages and other dues. Therefore, he sent a Demand Notice dated 08.09.2017 to the management through speed post but despite service, the management did not reply to the said notice. Consequently, he filed his statement of claim before the Labour Conciliation Officer on 07.03.2018 and management appeared before the said authority and filed its Written Statement and he also filed his rejoinder to the said Written Statement. Before the Labour Conciliation Officer, the management paid him the earned wages for September 2016 in (LIR No.3062/2019) (Johnson Masih Vs. M/s Baptist Church Trust Association) Page No.3 of pages 15 Digitally signed by MANISHA MANISHA TRIPATHY TRIPATHY Date: 2023.07.31 15:48:15 +0530 his bank account with Punjab National Bank but it failed to reinstate him and clear his other dues. The workman claimed that neither he remained absent from his duties nor left the services of management himself, rather, he was still ready to join his services with the management. He further, claimed that since illegal termination of his services, he has been unemployed. Hence, he has sought reinstatement in the service with full back wages, arrears of minimum wages, earned wages alongwith other legal benefits.
3. Notice of the statement of claim was sent to the management, which appeared and contested the claim of the workman by filing its Written Statement, wherein it stated that the workman was employed by it purely on ad-hoc basis as reflected in the appointment letter dated 01.04.2015. It further stated that the workman was quite irregular and irresponsible towards his duty as he was in the habit of taking leave from time to time, without informing the management. It further stated that the workman was also in habit of consuming liquor during the working hours and despite repeated instructions from the management, he failed to mend his ways and also misbehaved with his colleagues under the influence of intoxication. During a surprise check, he was also found to be performing his duty incorrectly. It claimed that the services of the workman have never been terminated by the management, rather, he left the employment of management of his own and that the salary of workman for the month of September 2016 for a sum of Rs.10,536/ was paid to him on 30.09.2016 vide cheque no.509967 dated 30.09.2016 drawn on Punjab National Bank, (LIR No.3062/2019) (Johnson Masih Vs. M/s Baptist Church Trust Association) Page No.4 of pages 15 Digitally signed by MANISHA MANISHA TRIPATHY TRIPATHY Date: 2023.07.31 15:48:28 +0530 Civil Lines, Delhi and thereafter, he did not return on duty. It also claimed that the workman is working in another firm and is earning handsome amount and as such the claim of the workman is liable to be dismissed with heavy cost.
4. In rejoinder to the Written Statement of the management, all the averments of the management were denied and that of Statement of claim were reaffirmed by the workman.
5. From the pleadings of the parties, vide order dated 24.11.2021 the following issues were framed:-
(i). Whether the workman has abandoned his job himself as stated in the preliminary objections of the written statement? OPM.
(ii). Whether the services of the workman were terminated by the management illegally and unauthorizedly on 01.10.2016 as stated by the workman in his statement of claim? OPW.
(iii). Whether the workman is entitled for reinstatement in services with back wages, continuity of services and other consequential reliefs as prayed for by the workman in the statement of claim ? OPW.
(iv). Relief.
6. No other issue arose or was pressed for and accordingly the case was adjourned for evidence of the workman.
7. Thereafter, workman led his evidence by stepping into the witness box as WW1. He tendered his evidence by way of (LIR No.3062/2019) (Johnson Masih Vs. M/s Baptist Church Trust Association) Page No.5 of pages 15 Digitally signed by MANISHA MANISHA TRIPATHY TRIPATHY Date: 2023.07.31 15:48:41 +0530 affidavit as Ex.WW1/A wherein he reiterated on oath the averments made in his statement of claim. He relied upon the following documents:-
(i). Copy of the Aadhar Card Ex.WW1/1;
(ii). Copy of the Appointment Letter dated
01.04.2015 Ex.WW1/2;
(iii). Legal Notice dated 08.09.2017 sent by the workman Ex.WW1/3;
(iv). Postal Receipt regarding dispatch of above said Demand Letter Ex.WW1/4; and
(v). Copy of Statement of Claim filed before Conciliation Officer Mark A;
(vi). Copy of the Written Statement / Reply dated 25.04.2018 of the management to the Statement of Claim filed before the Labour Officer, Labour Department, Nimri Colony, Ashok Vihar, Delhi Mark B.
8. He was cross examined by Ld. AR for the management. Thereafter, on the statement of workman, workman evidence was closed and case was fixed for management evidence.
9. In support of its defence, Management examined Sh. Sumit Nath as MW-1, who tendered his evidence by way of affidavit as Ex.MW1/A wherein he reiterated on oath the averments made in the written statement of the management. He relied upon the following documents:-
(LIR No.3062/2019) (Johnson Masih Vs. M/s Baptist Church Trust Association) Page No.6 of pages 15 Digitally signed by MANISHA MANISHA TRIPATHY TRIPATHY Date: 2023.07.31 15:48:52 +0530
(i). Copy of Attendance Register Ex.RW1/A;
(ii). Copy of cheque bearing no.509967 dated 30.09.2016 for a sum of Rs.10,536/- drawn on Punjab National Bank, Civil Lines, Delhi Mark A;
(iii). Consolidated Salary Slip of BCTA Staff for the month of September 2016 and October 2016 Ex.RW1/C;
(iv). Statement of its Bank Account of Punjab National Bank Mark B;
(v). Copy of original Appointment Letter of Sh.
Sumeet Nath as Secretary-cum-Treasurer
Ex.RW1/D.
10. He was cross examined by Ld. AR for the workman. Thereafter, management evidence was closed and case was fixed for final arguments.
11. Both the parties chose to file written submissions instead of addressing oral arguments. I have perused the record carefully including written submissions filed on behalf of both the parties. My issue wise findings are as under:-
12. For the sake of convenience, I shall take up issue no.1 and issue no.2 together as both issues are interconnected.
13. ISSUES No.1 & 2(i). Whether the workman has abandoned his job himself as stated in the preliminary objections of the written statement? OPM.
(LIR No.3062/2019) (Johnson Masih Vs. M/s Baptist Church Trust Association) Page No.7 of pages 15 Digitally signed by MANISHA MANISHA TRIPATHY TRIPATHY Date: 2023.07.31 15:49:05 +0530
(ii). Whether the services of the workman were terminated by the management illegally and unauthorizedly on 01.10.2016 as stated by the workman in his statement of claim? OPW.
13.1. On these issues, it was deposed by the workman that he was working with the management since July 2013 on the last drawn wages of Rs.14,300/- per month, though, he was deliberately issued appointment letter in April 2015. During the course of employment, he performed his duty to the satisfaction of the management and had clean service record, yet, he was deprived of basic facilities such as appointment letter, attendance card, leave book, pay slip, bonus, annual and casual leaves, annual increment and festival leaves, double payment for overtime, ESI facility and payment of minimum wages etc. On 01.10.2016, upon his oral demand for above said legal facilities and annual increment, Sh. Sumit Nath, Owner of the management got annoyed and terminated his services without assigning any reason and issuing any notice to him and also refused to pay his earned wages for September 2016. The workman further deposed that he kept on visiting the management in order to continue his duty but neither he was taken on duty nor his earned wages and due amount were paid to him. Consequently, he was compelled to issue legal notice dated 08.09.2017 to the management and raise the industrial dispute.
13.2 On the other hand, it was deposed by management witness MW-1 that the workman was employed by the management purely on ad-hoc basis vide appointment letter (LIR No.3062/2019) (Johnson Masih Vs. M/s Baptist Church Trust Association) Page No.8 of pages 15 Digitally signed by MANISHA MANISHA TRIPATHY TRIPATHY Date: 2023.07.31 15:49:16 +0530 dated 01.04.2015. It was further deposed that the workman did not perform his duty as per the satisfaction of the management and was in the habit of taking leaves from time to time without informing the management and was extremely irregular and irresponsible towards his job. It was further deposed that the workman was also in habit of consuming liquor on duty in the office of the management and used to misbehave with other workmen under intoxication and despite repeated instructions by the management failed to mend his ways . It was further deposed that the management never dismissed the workman from his services and that the workman had himself left the service of management without any reason and without intimating the management.
13.3 Even though the management claimed that it had never terminated the services of the workman and it was workman himself who had left the services of the management, admittedly no memo / show cause notice was issued to the workman asking him to explain his unauthorized absence from duty and no inquiry proceedings were initiated against him. Admittedly, no call letter was issued either by the management to the workman asking him to join his duty. When the workman sent legal notice calling upon the management to allow him to join duty alongwith other consequential benefits, the management did not send any reply to the said notice. When the dispute was raised by the workman before Conciliation Officer, even though in its reply to the statement of claim of the workman the management pleaded that it had not terminated the servies of the workman and workman had himself left his job, yet it did not offer the (LIR No.3062/2019) (Johnson Masih Vs. M/s Baptist Church Trust Association) Page No.9 of pages 15 Digitally signed by MANISHA MANISHA TRIPATHY TRIPATHY Date: 2023.07.31 15:49:30 +0530 workman to resume his services. During the cross examination of MW-1 before this court when a specific query was put in this regard, it was categorically stated by him that the management was not willing to reinstate the workman on duty.
13.4 Had the services of the workman not been terminated by the management, it would have issued show cause notice or call letter asking the workman to explain his absence from duty or to join his duty. Similarly, when workman was willing to join his duty, he would have been offered by the management to rejoin his duty but it was categorically refused by the management. Thus, from the facts and circumstances, it is apparent that it was the management which had terminated the services of the workman.
13.5 It is pertinent to mention that the management also tried to attribute misconduct on the part of the workman by alleging unsatisfactory performance, consumption of liquor on duty and misbehaviour by the workman under intoxication. It was suggested to the workman during his cross examination that he had taken 100 leaves from November 2015 to October 2016 without informing the management and that he was caught consuming alcohol in public in office / BCTA compound and that staff members had complained to the management regarding his misconduct under intoxication and thereafter, he had stopped coming to duty and joined employment somewhere else. However, no evidence whatsoever was produced by the management to substantiate any of the above-said allegations. It is well settled position of law that mere suggestions are not (LIR No.3062/2019) (Johnson Masih Vs. M/s Baptist Church Trust Association) Page No.10 of pages 15 Digitally signed by MANISHA MANISHA TRIPATHY TRIPATHY Date: 2023.07.31 15:49:41 +0530 evidence and as such in absence of any evidence, the management failed to establish that the workman had any reason to leave his job or the workman had abandoned his job himself.
13.6 It is also noted that in management evidence, the management produced Copy of Attendance Register Ex.RW1/A and Consolidated Salary Slip of BCTA Staff for the month of September 2016 and October 2016 Ex.RW1/C. Attendance Register Ex.RW1/A reflects that the workman had attended his duties for 4 days in October 2016 and Consolidated Salary Slip Ex.RW1/C shows that an amount of Rs.2,083/- was due to the workman for the work performed by him in October 2016, which was not collected by him. However, both these documents were not put to the workman in his cross-examination and were introduced for the first time in management evidence without any explanation in this regard. Further, by these documents the management has attempted to lead evidence beyond its pleadings as it was not even pleaded by the management in its written statement that the workman had worked with it in October 2016 beyond the date of alleged termination on 01.10.2016. Also, both these documents were not proved by respective authors or witnesses as per law. Therefore, Ex.RW1/A and Ex.RW1/C are not read in evidence.
13.7 In view of the discussion above, issues no.1 and 2 are decided in favour of the workman and against the management.
14. ISSUE No.3 & 4:-
(iii). Whether the workman is entitled for reinstatement in services with back wages, (LIR No.3062/2019) (Johnson Masih Vs. M/s Baptist Church Trust Association) Page No.11 of pages 15 Digitally signed by MANISHA MANISHA TRIPATHY TRIPATHY Date: 2023.07.31 15:50:21 +0530 continuity of services and other consequential reliefs as prayed for by the workman in the statement of claim ? OPW.
(iv). Relief.
14.1 The workman herein has sought the relief of reinstatement in the service with full back wages, arrears of minimum wages, earned wages alongwith other legal benefits.
14.2 So far as claim of workman to earned wages is concerned, in his statement of claim it was alleged by the workman that he was terminated from the services on 01.10.2016 without paying earned wages for September 2016, however, the same was subsequently paid in his bank account at the instance of Conciliation Officer during conciliation proceedings. On the other hand, management claimed in its Written Statement that earned wages of Rs.10,536/- for September 2016 was paid to the workman by way of cheque no.509967 dated 30.09.2016 drawn on Punjab National Bank, Civil Lines, Delhi. Same was admitted by the workman in his cross examination and also reiterated by Ld. AR for the workman in form of a suggestion to MW-1 during cross examination of said witness. In view of the admission of the workman regarding already receiving payment towards his earned wages, the workman is held not entitled to any earned wages.
14.3 So far as relief of reinstatement and back wages are concerned, the law relating to grant of reinstatement and back wages is well settled. Even in cases where termination is held to be illegal, it is not always mandatory to grant reinstatement or (LIR No.3062/2019) (Johnson Masih Vs. M/s Baptist Church Trust Association) Page No.12 of pages 15 Digitally signed by MANISHA MANISHA TRIPATHY TRIPATHY Date: 2023.07.31 15:50:34 +0530 full back wages. The Hon'ble Apex Court of India in Employers, Management of Central P & D Inst. Ltd. Vs Union of India & Another, AIR 2005 SC 633 held that it is not always mandatory to order reinstatement after holding the termination illegal and instead compensation can be granted by the court. Similar views were expressed by Hon'ble Delhi High Court in cases titled as Kishan Swaroop Vs. Project and Equipment Corporation of India Ltd. (2008) ILLJ 1052 Del and Indian Hydraulic Industries Pvt. Ltd Vs Krishan Devi and Bhagwati Devi & Others, ILR (2007) I Delhi 219 wherein it was held that in each and every case of illegal and unjustified termination of services, the relief of reinstatement and full back wages is not to be granted automatically by the Labour Court and the relief can be moulded according to the facts and circumstances of each case and the Labour Court can allow compensation to the workman instead of reinstatement and back wages.
14.4 In the instant case, the workman has claimed that he was working with the management since July 2013 on last drawn wages of Rs.14,300/-, however, he was issued appointment letter only in April 2015 and was subsequently terminated from his services on 01.10.2016. The Onus to prove the period of his employment with the management was on the workman. The workman has not produced any evidence to substantiate his claim that he was working with the management w.e.f. July 2013. The workman could have sought production of attendance register, wage regsiter etc. of the relevant period of July 2013 to March 2015 under Section 11 (3) (b) ID Act, which would have thrown light on whether the workman was working with the management (LIR No.3062/2019) (Johnson Masih Vs. M/s Baptist Church Trust Association) Page No.13 of pages 15 Digitally signed by MANISHA MANISHA TRIPATHY TRIPATHY Date: 2023.07.31 15:50:44 +0530 during the said period or not. However, no steps for production of relevant documents were taken by the workman. In absence of any evidence to the contrary, the appointment letter dated 01.04.2015 Ex.WW1/2 prevails. As such, the date of appointment of the workman is taken as 01.04.2015.
14.5 The workman worked for management for a period of approximately 18 months. There is a long gap of around 7 years since his services were terminated by management.
14.6 The workman has pleaded that he has remained unemployed since termination of his services by the management but has not pleaded that he searched for alternative employment, nor he has led any evidence to show what efforts, if any at all, were made by him to search for employment. Also, in these days of high cost of living, It cannot be presumed that workman would have remained idle for such a long period of around 7 years. Therefore, it can be presumed that workman must have been working somewhere.
14.7 In totality of the facts and circumstances and in light of the case law cited above, I am of the view that in the present case reinstatement of workman would not be justifiable and ends of justice would be met by granting lump sum compensation to the workman instead of his reinstatement. Considering the length of service of the workman, nature of his duties and all other attendant facts and circumstances, I award a lump sum compensation of Rs.50,000/- in favour of the workman and against the management, which includes the cost of litigation expenses. The management is directed to pay the said amount to the workman within a period of one month from the date of publication of the award, failing which the amount shall carry an (LIR No.3062/2019) (Johnson Masih Vs. M/s Baptist Church Trust Association) Page No.14 of pages 15 Digitally signed by MANISHA MANISHA TRIPATHY TRIPATHY Date: 2023.07.31 15:50:56 +0530 interest @ 6% p.a. from the date it becomes due till the time it is realized. Ordered accordingly.
15. Reference stands answered in aforesaid terms. Requisite number of copies of this award be sent to the competent authority for necessary compliance, as per rules.
17. File be consigned to the Record Room after due compliance. MANISHA MANISHA TRIPATHY Digitally signed by (Announced in the open TRIPATHY Date: 2023.07.31 15:51:03 +0530 Court on 31.07.2023) (MANISHA TRIPATHY) Presiding Officer Labour Court-III Rouse Avenue Courts, New Delhi (LIR No.3062/2019) (Johnson Masih Vs. M/s Baptist Church Trust Association) Page No.15 of pages 15