Delhi District Court
Shri Ram Dass vs M/S. Cosmice Softech Ltd on 3 March, 2012
IN THE COURT OF SATINDER KUMAR GAUTAM
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER LABOUR COURT
KARKARDOOMA COURTS, DELHI.
DID NO. 270/10
Date of Institution : 22.09.2009
Date of Award : 03.03.2012
IN THE MATTER BETWEEN :
Shri Ram Dass, S/o. Ghasi Ram
C/o. S S Upadhyayaa Vice President,
Delhi State HMS Q.No. C4849,
Ashok Hotel Staff Qtr. 50B,
Chankayapuri, New Delhi.
..........Workman
VERSUS
M/s. Cosmice Softech Ltd.,
B1/E11, Mohan CoOp Indl. Estate,
Mathura Road,
New Delhi110 044.
........Management
A W A R D
The claimant Shri Ram Dass filed a direct
industrial dispute in the court wherein he has allege that he was
DID NO. 270/11 Page no. 1 out of 13
working with the management of M/s. Cosmice Softech Ltd.
situated at B1/E11, Mohan CoOp Indl. Estate, Mathura Road,
New Delhi110044 from September, 2002 at the monthly salary
of Rs. 3529/ p.m. which includes the benefit of PF & ESI, the
actual salary of the workman was Rs. 3208/. It is alleged that
due to hard working of the applicant, he was promoted as
StoreKeeper from April, 2006 at the monthly salary of Rs.
6000/ p.m. He worked as clerk cum StoreKeeper and he
always cooperate with the management. The management
refused to take him on duty w.e.f. 1.5.09 without ryam and
reasons on verbal order and without giving any letter in writing
or without paying the earned wages of April. The workman
sent a letter dated 04.5.09 to the Dy. Labour Commissioner and
copy of the same sent to the management but management did
not respond the same. Again on 21.5.09, workman had sent
another letter to the management to take him back on duty as
earlier he was not allowed by the Security Guard to enter in the
premises of the company, copy of letter dated 21.5.09 was sent
to Dy. Labour Commissioner. On the request of workman, the
Vice President Delhi State HMS sent a letter to Dy. Labour
DID NO. 270/11 Page no. 2 out of 13
Commissioner on 13.5.09 requested to take action against the
management and also wrote a letter to Sh. Rahul Bhardwaj,
Director of the management regarding illegal refusal of duty to
the applicant. On the complaint of vice President as well as of
workman, the Labour Inspector visited the management on
8.5.09, 12.5.09, 21.5.09, 25.5.09 and advised the management
to take back the workman but management again refused to the
applicant on duty. .
2. It is further contented by the workman/claimant
that Asst. Labour Commissioner, Delhi Govt. also wrote a
letter to the applicant on 4.6.09, copy to the office of Labour
Minister, Delhi and letter dated 2.7.09 wherein it has been
clearly indicated that the management willing to pay earned
wages Rs. 5390/but is not prepare to take back the workman
on duty. The Labour Department advised the workman to file
the present claim in the labour court regarding termination of
the service. The workman is unemployed since the date of
termination of his services despite his best efforts. The
claimant prayed that management be directed to reinstate in
service with continuity of service and with full back wages.
DID NO. 270/11 Page no. 3 out of 13
3. A notice of aforesaid statement of claim was sent
to the management. The management contested the claim by
filing the written statement. The management admitted that the
workman is employed by the management as 'Office Attendant'
w.e.f. 1.09.2002 at the Delhi Office. It is further stated that
workman himself became absent from duty without leave w.e.f.
1.5.09. He was informed vide letter dated 16.5.09 by the
management that his absence from duty without leave showed
that he was no longer interested in continuing in service and his
services with the company were dispensed with, which he
completely ignored and cooked up a story attributing his
absence to the management. It is further stated that the
averment made by the workman that management refused to
take him on duty or that he was not allowed to enter the
premises of the company is totally baseless. True copy of the
letter dated 16.5.09 is annexed with and marked as Annexure
R3.
4. The workman did not opted to file the rejoinder.
5. From the pleadings of the parties, the following
issues were framed :
DID NO. 270/11 Page no. 4 out of 13
(i) Whether the workman abandoned his job
by unauthorised absence and if so, to
what effect? OPM
(ii) Whether the management terminated
services of the workman illegally and/or
unjustifiably and if so, to what effect?
OPW
(iii) Relief.
6. The parties are given an opportunity to lead
evidence. The workman filed his affidavit as Ex. WW1/A and
relied upon documents Ex. WW1/1 to WW1/14. The workman
was cross examined by the AR for the management at length on
different aspects.
7. To disprove the claim of the workman, the
management has examined MW1 Sh. K.H.N Singh, Chief
Administrator Officer through an affidavit as Ex. MW1/A and
also relied upon documents marked as Annexure R1/1 to
R1/6.
8. After concluding the evidence of the parties, final
arguments heard on the issues framed and findings on the
issues are as under :
9. In this case, the issue no. 1 and 2 are interlinked.
DID NO. 270/11 Page no. 5 out of 13
Hence, decided both the issues together.
10. ISSUE NO. 1 :
Whether the workman
abandoned his job by unauthorised absence
and if so, to what effect?
AND
ISSUE NO. 2 : Whether the management
terminated services of the workman illegally
and/or unjustifiably and if so, to what effect?
The issues no. 1 and 2 are decided by the common
findings as both the issues are based on common question of
law as such be decided together with the common findings.
11. In cross examination, the workman has admitted
that he was given an appointment letter and he accepted the
terms and conditions of the same at the time of joining the
management and he signed the same. It is further that he
worked with the management till April, 2009. He denied the
suggestion that he had taken the leave without informing the
management since May, 2009, though his entry was banned in
the management. The workman admitted that he received letter
dt. 16.5.09 sent by the management regarding dispensed of his
DID NO. 270/11 Page no. 6 out of 13
services due to unauthorised absence. It is denied by the
workman that he received a full and final settlement of Rs.
17412/ arrived between the workman and the management,
vol. the same was offered me in labour department but I
refused to accept the same.
12. To counter the claim of the workman, the
management also examined Sh. K.H.N. Singh, Chief
Administrative Officer and testified that in para 5.2 of the
letter of appointment prescribed the condition on account of
which the company may immediately terminated the services
of the workman without giving any compensation or notice in
which if the employee remained absent without leave or
remained absent beyond the period of leave originally granted
or subsequently extended, you shall be considered as having
voluntarily terminated your employment without giving any
notice etc.. The workman absented from duty w.e.f. 1.5.09 and
on 16.5.09, the management intimated that his absence from the
duty without leave showed that he is no longer continued his
service and his services were dispensed with the workman
received a cheque of Rs. 17412/ dated 27.5.09 as full and final
DID NO. 270/11 Page no. 7 out of 13
settlement from the management.
13. In view of the averments made, the management
has terminated the services of the workman of his own on
16.5.09 in terms of the clause 5.2 of the appointment letter, no
show cause notice or any domestic inquiry was conducted
which is violation of principles of natural justice. The clause
made in the appointment letter does not ifsofacto a judgement
in ram. The principles of natural justice is to be followed by the
management before terminating the services of the workman
even in case of prolong absence of the employee. This view is
strengthen with the following judgements :
The Hon'ble Delhi High court in 2011 LLR 312,
M/s. Hindustan Associates Engineer Pvt. Ltd., Vs. Sh. KK
Aggarwal & Ors. wherein it is held that :
"Plea of the management that the workman
has abandoned the job of his own accord
would not be tenable since no evidence was
led and also in response, the Management did
not send offer to the workman to resume his
duty. Even in the case of abandonment of
employment by a workman, holding of enquiry
is imperative."
14. So far as the abandonment is concerned, the
DID NO. 270/11 Page no. 8 out of 13
counsel for the workman drawn the attention of the court to the
cross examination of the management witness as well as on the
written statement that no letter or notice asking the workman
to join back was issued. The management admitted that the
claimant has been appointed by the management. The period of
not allowing the workman will be excluding the period of 240
days from counting the service of the claimant and the
workman himself has not voluntarily absented from duty. The
management has not deployed him during the period of when
he was not deputed in any of the unit. It has been held in Anil
Chuttani Vs. ONGC, 2010 (117) DRJ 433 that :
"for abandonment also a proper enquiry has to be
made and which admittedly has not been done in the
present case."
15. The compensation in lieu of reinstatement has
been rightly granted and the plea that the workman has
abandoned the job of his own accord would not be tenable by
its own version.
16. The management has not been able to prove
through evidence that the termination of the service of the
workman was not illegal and violation of section 25 F of the
DID NO. 270/11 Page no. 9 out of 13
Industrial Dispute Act. The question arise where the direction
for reinstatement on account of 25 H is justified or not section
25 (H) says that :
"25 H. Reemployment of retrenched workman.
Where any workmen are retrenched, and the
employer proposes to take into his employ any
persons, he shall, in such manner as may be
prescribed, give an opportunity (to the
retrenched workmen who are citizens of India
to offer themselves for reemployment, and
such retrenched workmen) who offer
themselves for reemployment shall have
preference over other persons."
17. In case 2011 LLR 254 Gujarat High Court in
case Ahmedabad Municipal Transport Services Vs. Atul
Chimanial Shah wherin it is held that :
" Being aggrieved by this order of termination the
respondent herein approached the Labour court, for
reinstatement in service with back wages. The Labour court after considering the statement of claim put up by the respondent and written statement of the petitioner passed an award directing the petitioner to reinstate the respondent in service with 25 % back wages and cost of Rs. 1000/."
18. In view of the averments and the aforesaid discussion and the judgements cited, though the workman may be absented from the service of the management but the order DID NO. 270/11 Page no. 10 out of 13 of termination forthwith in consonance of absentism of the workman without forwarding any absentee report, show cause notice or conducted any domestic inquiry is violation of principles of natural justice and against the basic structure of constitution.
19. Keeping in view the aforesaid discussion, the issues no. 1 and 2 are decided in favour of the claimant/workman and against the management.
20. RELIEF Now the question is : Relief. In the instance case, the claimant did not forward himself for employment in other establishments and he is unemployed since the date of his termination. It is submitted by him that he may be ordered to be reinstated with full back wages while the management has opposed it. In an authority reported as Theworkman of M/s. Fireston Tyre & Rubber Co. of India (P) Ltd. etc. Vs. The management & Ors. Etc. 1973 (1) SCC 813, Hon'ble Supreme Court while dealing with the relief to be granted to the workman observed in paragraph 32 sub paragraph 10 as under : DID NO. 270/11 Page no. 11 out of 13 "10. In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is asheld by this court in The Management of Panitole Tea Estate Vs. the workmen (1971) 1 SCC 742 within the judicial decision of a Labour Court of Tribunal."
21. In 2011 LLR 794 P & H High court in Indian Acrylics Ltd., and Anr. vs. Presiding Officer, Labour Court, Patiala & Ors. wherein it is held that : "Compensation to each workman, in lieu of reinstatement when the termination of the workman has been held to be illegal, would be appropriate whereas the workman has worked only for less than three years and over 15 years have passed from termination."
22. As such it is admitted by the management that the workman Ram Dass was its employee and the service of the workman was dispensed with on 16th May, 2009. Long time has elapsed since the date of his termination. There is no effort made for reemployment nor enrolled himself in any employment exchange. It deem it proper that reinstatement would not be an appropriate relief and compensation would be a better alternative. Considering the length of service, the period for which the workman has faced the litigation and other DID NO. 270/11 Page no. 12 out of 13 facts and circumstances appearing on the file, it deem it proper that a compensation of Rs. One Lakh, in lieu of reinstatement and back wages would be an appropriate relief. I, accordingly grant a compensation of Rs. One lakhs (Rupees One Lakhs), in lieu of reinstatement and back wages to the workman Ram Dass to be payable by the management within one month of publication of the award, failing which the workman would be entitled to interest @ 9% per annum till its realization.
23. Copy of award be sent to the Secretary Labour, Govt. of NCT, Delhi for publication & Ld. Civil Court for execution of the award. The award be also sent to server (www.delhicourts.nic.in). File be consigned to Record Room. Announced in the open Court on 3rd March, 2012.
(Satinder Kumar Gautam) Additional District & Sessions Judge Presiding Officer : Labour Court Karkardooma Courts,Delhi.
DID NO. 270/11 Page no. 13 out of 13