Delhi District Court
Buckingham & Carnatic Co. Ltd. vs . Venkatayya "(1963) on 18 March, 2009
# 1 #
IN THE COURT OF MS. RENU BHATNAGAR
PRESIDING OFFICER LABOUR COURTX
KARKARDOOMA COURTS, DELHI.
I.D. No. : 170/06
Date of Institution of the case : 25.03.2006
Date on which reserved for Award : 27.02.2009
Date on which Award is passed : 18.03.2009
Between
The Management of
M/s Livewell Aviation Services Pvt. Ltd.
Kirti Deep Building, 207/208, 2nd Floor,
DDA Complex, Nagal Raya, New Delhi46.
Head Office at: 9 Narain Udhyog Bhawan,
Lal Bagh, Industrial Estate, Dr. Abmedkar Road,
Lal Bagh, Mumbai 12
&
Its workman Sh. Muni Ram
S/o Sh. Lachchhi Ram,
C/o Anil Rajput Advocate,
Seat No. K145, 4th Floor
Karkardooma Courts, Delhi.
A W A R D
The workman Sh. Muni Ram raised an industrial
dispute regarding the termination of his services by the
# 2 #
management of M/s Livewell Aviation Services Pvt. Ltd.
Direct statement of claim was filed by the workman in the
court. In the statement of claim, it is stated by the
workman that the workman was working as driver since
August 2004 on a last drawn salary of Rs. 4,000/ per
month ; that he has given no chance of complaint to the
management; that the management was not providing
legal facilities like ESI, PF, Bonus, yearly leaves , weekly
off, overtime etc to the workman and when the workman
had demanded these facilities, then the management had
terminated him on 02.09.2005 without any notice or
chargesheet; that while appointing the workman, the
management has taken his signatures on blank
appointment letters, vouchers and application for
appointment; that the workman had sent a demand
notice, on receipt of which the management had reinstated
the workman but thereafter again he was terminated on
# 3 #
02.01.2006in violation of the provisions of section 25 F of the I.D. Act; that the workman is unemployed since the date of his illegal termination, hence he has claimed reisntaement with full backwages and other consequential benefits.
Notice of the statement of claim was sent to the management who had appeared and contested the claim of the workman by filing the written statement. In the written statement filed by the management, they have taken the preliminary objection that the management has not removed the workman from the service and the workman himself stopped coming because of non availability of Airport entry pass. It is stated that the special branch of Delhi police has not given the clearance in respect of the workman antecedent verification to B.C.A.S. Delhi and as a result B.C.A.S has not renewed workman's Airport entry pass which is required for every # 4 # employee to enter in the Airport to carry out its duties. On merits, it is stated that the workman was appointed as Operator on consolidated salary of Rs. 4,000/ per month. It is denied that he worked honestly and sincerely. It is further stated that the management has paid all the dues of the workman. Hence, it is prayed that the claim be dismissed.
In rejoinder all the averments of the statement of claim are reaffirmed and of the written statement are denied by the workman. It is stated that the clearance certificate in respect of the workman issued by Delhi Police had already reached the management but the management had not taken the workman on duty intentionally. It is denied that the workman was not having Airport entry pass rather in fact the management had not issued any pass to the workman and had terminated him; that no full and final dues were given to # 5 # the workman.
On the pleadings of parties, following issues were framed vide order dated 17.08.06 by my predecessor court: (I) Whether the workman has abandoned his job?
(ii) Whether the services of the workman have been terminated illegally by the management?
(iii) Relief.
No other issue arose or pressed and the case was adjourned for workman evidence.
In support of his case the workman himself appeared as WW1 and filed his evidence by way of affidavit Ex. WW1/A. He has tendered in evidence demand notice dated 13.01.2006 along with its postal receipt Ex. WW1/1 and Ex. WW1/2, daily permit given to the workman by B.C.A.S Ex. WW1/3, letter of B.C.A.S dated 13.09.05 addressed to Police Commissioner Ex. WW1/4, # 6 # receipt of Rs. 3,000/ towards security deposit Ex. WW1/5, another receipt Ex. WW1/6.
After examining himself the workman has closed his evidence.
In support of its defence, the management has examined Sh. Satish Rama Krishna Marvalli as MW1 who has tendered his evidence by way of affidavit Ex. MW1/A. In his affidavit he has substantiated all the averments of the written statement. No documents are filed by MW1 in his evidence.
After examining MW1 the management has also closed the evidence.
I have heard the submissions of AR for both the parties and have gone through the file. My issuewise findings is as under: Issue No. 1 :
# 7 # It is the case of the workman that he was working with the management as Driver since August 2004 on a monthly salary of Rs. 4,000/ and on demanding legal facilities the management has terminated him on 02.09.2005 without any rhyme or reason. On the other hand it is stated by the management that they had not terminated the workman but he himself stopped coming to duties on account of nonavailability of entry pass. It is stated that Special Branch of Delhi Police has not given the clearance in respect of the above workman antecedent verification to B.C.A.S as a result of which B.C.A.S. has not renewed workman's Airport entry pass which is required for every employee to enter in the Airport to carry out his duties. It is stated that the company management has paid all the dues to the workman.
The onus to prove abandonment is upon the management as is held in by the Hon'ble High Court of # 8 # Punjab and Haryana in its judgment reported as "2001 LLR141" (referred hereinafter).
To prove its defence the management has examined one witness MW1 Sh. Satish Rama Krishna Marvalli who has given his oral version with respect to the averment of the written statement. Apart from the oral testimony of MW1 the management has not placed on record any documentary evidence to show that in fact no clearance was given by the police due to which the entry pass of the workman was not renewed by B.C.A.S. No application by virtue of which, as per the statement of MW1, the management had enquired about the verification report of B.C.A.S wherein as per the statement of MW1, it was informed that the verification was not received as the address of the workman was wrong, is placed on record by the management to # 9 # substantiate their avements. It is stated by MW1 that the management had sent one letter to the workman on 11.10.05 informing him that since his entry pass has not been renewed by B.C.A.S, the management has struck off his name from the rolls of the management. No such letter dt. 11.10.05 is placed on record by the management. As per the admission of MW1 in his cross examination they had not sent any reply to the demand notice of the workman. No document is placed on record by the management to show that they had made a payment of full and final dues to the workman as claimed by the management in the written statement. Hence without any documentary evidence the oral testimony of the MW1 cannot prove the defence of the management, in view of specific denial of the workman. The action of the management in striking off the name of the workman from its rolls on 11.09.05 without payment of full and final # 10 # dues is indicative of their intention that they have terminated the workman. There is iota of judgments on the point that abandonment of job by workman depends upon the intention of the workman and has to be gathered from surrounding circumstances. It should be shown that the workman had the intention to sever his relationship with the management permanently. It is held in Buckingham & Carnatic Co. Ltd. Vs. Venkatayya "(1963) 2 LLJ 638" by the Hon'ble Supreme Court as under :
"Abandonment or relinquishment of service is always a question of intention, and, normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf."
In GT Lad Vs. Chemicals and Fibres of India # 11 # "(1979) Lab IC 290" it is held by the Hon'ble Supreme Court as under :
"However, the "intention may be inferred from the acts ad conduct of the party'. The question as to whether the job, in fact has been abandoned or not, is a question of fact which is to be determined in the light of the surrounding circumstances of each case. It was further held that a temporary absence from duty cannot be treated as abandonment, but it must be a permanent break intended by the workman."
In the present case, the management has struck off the name of the workman from its rolls on 11.09.2005. As per the statement of the management the workman's name was struck off since his entry pass was not renewed # 12 # by the B.C.A.S, hence, from their own statement it is clear that the workman had not himself stopped coming to duty but he was stopped on account of non supply of Airport entry pass to him. Though, there is no evidence on the file to show that the antecedents of the workman by the police were not verified, but even then from the defence of management it is clear that the workman has not himself stopped reporting for duties and rather his entry was restrained in the Airport premises as he was not given entry pass by the B.C.A.S. From these facts of the case it is clear that the workman had no intention to abandon the job i.e. to sever his relationship permanently with the management.
Immediately after his alleged termination on 02.01.2006 he had sent a demand notice to the management on 13.01.2006, which was admittedly received but not replied by the management. All this # 13 # shows that the workman has no intention to abandon the job.
A bald and uncorroborated statement of MW1 without any documentary evidence is not sufficient to prove abandonment more so when the management own pleadings contradict their defence of abandonment of job by workman.
I am supported by the judgment of Hon'ble High Court of Punjab and Haryana in the case reported as "2001 LLR141" as under :
"Abandonment of Service - By a Workman-- Onus to prove lies on management" - There was no positive, cogent or reliable evidence produced by management to prove abandonment by the workman There was only a simple, bald and uncorroborated statement of # 14 # management witness in examination in chief - It is neither trustworthy nor sufficient to prove abandonment of service by the workmanNo infirmity in the award of Labour Court "
Accordingly, in view of above discussion, it is held that the management has failed to prove that the workman has abandoned the job, hence, this issue is decided against the management and in favour of the workman.
ISSUE NO. 2
It is the case of the workman that he joined the management in the year 2004 and was terminated on 02.09.2005 whereupon he sent demand notice after which he was again reinstated by the management but was again terminated on 02.01.2006. In the written statement filed by the management, no reply is given by the # 15 # management with regard to the date of joining of the workman or the date of his alleged termination. The management is even silent with regard to the averment of the workman that once he was terminated on 02.09.2005, again reinstated and again terminated on 02.01.2006. On all these facts alleged by the workman, the management has remained silent. Not a single question is put to the workman in his cross examination to contradict this statement of the workman. The averment of the management that the name of the workman has been struck off from the rolls of the management on 02.09.05 has not been substantiated by producing any documentary evidence on record i.e. the alleged letter dated 11.10.05. The defence of the management that the workman has abandoned the job has already been disbelieved by me in my findings on issue No. 1. As admitted by MW1 in his cross examination, the management has not sent any # 16 # letter to the workman to join his duties nor any reply to the demand notice of the workman is sent nor it is proved that any full and final dues were paid to the workman nor it is proved that any notice, notice pay or retrenchment compensation was given to the workman as per the provisions of section 25F of I.D Act, hence, it is proved that the management has terminated the workman. Accordingly, this issue is decided against the management and in favour of the workman.
ISSUE NO. 3
The Hon'ble Supreme Court of India in a case reported as AIR 2005 SC 633 has held as under :
"It is not always mandatory to order reinstatement after holding the termination illegal, and instead compensation can be granted."
This view was also taken by a Division Bench of # 17 # the Hon'ble Delhi High Court in a case reported as "123 (2005) DLT 509" titled as Pramod Kumar Vs. Presiding Officer.
Same view was also taken by the Hon'ble Delhi High Court in a case in its order dt. 10.2.2006, in LPA 1647/2005 in case titled as M/s Lords Homeopathic Laborites Pvt. Ltd. Vs. Ms. Lissy Unnikunju & Ors., The Hon'ble Delhi High Court recently in a case reported as "ILR (2007) I DELHI 219" has held that Even if termination of a person is held illegal, Labour Court is not supposed to direct reinstatement alongwith full back wages and the relief can be moulded according to the facts and circumstances of each case. Labour Court can allow compensation to a workman instead of reinstatement and back wages.
In view of the judgments referred above and seeing the record of this case, I am of the view that the ends of the justice would be met if the workman is granted # 18 # compensation.
Accordingly, the workman is granted compensation of Rs. 65,000/.
The Award is passed accordingly. Ahlmad is directed to send six copies of this award to the appropriate Government. The file be consigned to Record Room. Announced in the open court on 18th March, 2009 (Renu Bhatnagar) Presiding Officer Labour CourtX Karkardooma Courts, Delhi