Delhi District Court
Mohd. Athar vs Ex Man Raghav Security Services Pvt. Ltd on 20 July, 2024
IN THE COURT OF RITU SINGH,
DISTRICT JUDGE,
PRESIDING OFFICER : LABOUR COURT - IV,
ROUSE AVENUE COURTS : NEW DELHI.
LIR No.9291/2016
CNR No.DLCT13-011902-2016
1. Smt. Reshma Khatoon,
W/o late Mohd. Athar,
Permanent R/o Mubarakchak, Bank,
Munger, Bihar-811202
Presently R/o 4/299, Trilok Puri,
Delhi-110091 ....Claimant No.1/LR
of deceased workman
2. Sh. Mohd. Jakir,
S/o late Sh. Mohd. Athar,
R/o 4/299, Trilok Puri,
Delhi-110091
Through Samajwadi Karamchari
Union (Regd.),
D-212, Gali No.10, Jagatpuri,
Mandoli Road, Delhi-93 ....Claimant No.2/LR
of deceased workman
Versus
1. Ex-Man Raghav Security Services Pvt. Ltd.,
212, Laxmi Chamber,
D-223, Laxmi Nagar,
Main Vikas Marg,
Delhi-110092 ..... Management No.1
2. District Election Officer,
District Election Office,
L.M. Bundh Krishankunj,
Shastri Nagar, Delhi-31 .....Management No.2
Date of Institution : 29.09.2016
Date of Award : 20.07.2024
Decision : Award Passed
LIR No.9291/2016; Mohd. Athar Vs.
Ex-Man Raghav Security Services Pvt. Ltd. Page No. 1 of 29
AWARD
1. Vide this Award, this Court shall decide the Industrial
Dispute which was referred by Deputy Labour
Commissioner, East District, Delhi on a complaint filed by
the workman Mohd. Athar (now deceased and represented
through his legal heirs namely Smt. Reshma Khatoon, wife
and Sh. Mohd. Jakir, son) against the Management, vide
reference no. F.24(304)/E/Lab./14/3806 dated 23.11.2015, u/s
10(1)(c) and 12 (5) of The Industrial Disputes Act, 1947,
wherein the following reference was to be answered.
"Whether services of Sh. Raju Verma S/o
Sh. Ram Swaroop & 06 others (as per
Annexure-A) have been terminated
illegally and/or unjustifiably by the
management and if so, to what sum of
money as monetary relief along with other
consequential benefits in terms of existing
Laws/Govt. Notifications and to what other
relief are they entitled and what directions
are necessary in this respect?".
2. It is pertinent to mention here that since this was a
single reference of 07 workers, which included workman
Mohd. Athar (now deceased) the Ahlmad was directed by the
Ld. Predecessor of this Court to segregate the statements of
claim of all these workmen/claimant by placing copy of
reference and copy of statement of claims of in each file and
accordingly separate case was registered in respect of
reference received regarding workman Sh. Mohd. Athar S/o
Mohd. Abdul and was proceeded as per law.
THE CLAIM OF THE WORKMAN
3. Notice of the reference was issued to the workman
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Ex-Man Raghav Security Services Pvt. Ltd. Page No. 2 of 29
Mohd. Athar. Pursuant thereto, the workman appeared and
filed his statement of claim, claiming therein that he was
employed with the management No.1 w.e.f. November, 2007
and at the time of termination of his services, he was working
with management no.2 as Security Guard and his last drawn
salary was Rs.8632/- per month. It is further submitted that
the management had not provided any legal facilities like
appointment letter, pay slip, ESI Casual and earned leave and
over time benefits etc. which were being demanded by the
workman. It is further stated in the statement of claim that
employer was also paying less than the minimum wages to
the workman and used to take work from him beyond the
prescribed hours without paying overtime wages. According
to workman he demanded said legal facilities from
management on which the management got annoyed and
terminated the services of the workman on 01.01.2015 and
also withheld his earned wages w.e.f. April, 2014. It is stated
by the workman that he alongwith his co-workers made a
complaint in the Labour Office against the management
through Union.
4. Aggrieved by his illegal termination, the workman
served a legal demand notice dated 24.01.2015 upon the
management, demanding his reinstatement in service with all
consequential benefits from the management. The workman
and other co-workmen also filed his statement of claim
before the Labour Commissioner. Management no.2 appeared
therein but the services of the workman was not reinstated.
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Ex-Man Raghav Security Services Pvt. Ltd. Page No. 3 of 29
5. It is claimed that the workman was unemployed from
the date of his illegal termination by the management till his
death and it has been further prayed by way of present claim
that an award be passed in favour of legal heirs of deceased
workman and against management directing the management
to pay comepnsation for illegal termination of the workman
(now deceased).
VERSION OF MANAGEMENT IN ITS REPLY
6. Notice of the statement of claim was issued and served
on the management. Pursuant to service of notice,
management no.1 had entered appearance through its AR on
06.12.2016, but despite several opportunities written
statement has not been filed by management no.1 and
management no.1 through AR had stopped appearing before
Court and hence, the management no.1 was proceeded ex-
parte vide order dated 04.09.2017. Management no.2 had
entered appearance through its AR on 27.03.2018 and filed
written statement on 10.08.2018.
7. In its written statement, it was contended by the
management no.2 that M/s Ex-Men Raghav Security Services
Pvt. Ltd. (i.e. management no.1) was awarded the contract by
it for providing Sweeper-cum-Chowkidars at all the Voter
Centre of District-East, Delhi except AC-58 (Laxmi Nagar)
and that management no.1 had provided Security Guards at
AC-55 (Trilokpuri), AC-56 (Kondli), AC-57 (Patparganj),
AC-59 (Vishwas Nagar), AC-60 (Krishna Nagar), AC-61
(Gandhi Nagar) and AC-62 (Shahdara) and that Guards at
LIR No.9291/2016; Mohd. Athar Vs.
Ex-Man Raghav Security Services Pvt. Ltd. Page No. 4 of 29
Voter Centre of AC-58 (Laxmi Nagar) were not provided by
management no.1 as this Voter Centre was situated within the
office Complex of Deputy Commissioner/District Magistrate
(East). It is further stated by the management no.2 in its reply
that initially the contract with the M/s Ex-Men Raghav
Security Services Pvt. Ltd. (management no.1) was for
providing Security Guards at the Voter Centres for the period
from 01.01.2010 to 31.12.2012, which was later on extended
upto 31.12.2014 and amount (monthly wages) which were to
be paid to Sweeper-cum-Chowkidars were fixed as
Rs.5160.57 per month. It is further stated by management
no.2 in its reply that as per Clause 7 of the terms and
conditions of its contract with management no.1 as
mentioned in the agreement, it was the responsibility of the
Vendor (contractor) to submit the attendance of the Sweeper-
cum-Chowkidar to their office and payment upto 31.12.2012
was made regularly for all the Security Guards deployed at
the Voter Centres as all the attendance was provided by the
vendor to the office of management no.2. It is stated by
management no.2 in its reply that payment for the remaining
period upto 31.12.2014 has been made only for those
Security Guards for whom the attendance was provided to
their office by the vendor however, letter was written to
AEROs of AC-55, 56, 57, 59, 60, 61 & 62 to provide the
attendance to their office so that the payment for remaining
period may be made to the vendor (contractor).
8. It is further contended that the attendance of four cases
including Sh. Amar Pal (AC-60) & Sh. Jitender Singh (AC-
62), Sweeper-cum-Chowkidar were sent to M/s Ex-Man
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Ex-Man Raghav Security Services Pvt. Ltd. Page No. 5 of 29
Raghav Security Services Pvt. Ltd., 280, Laxmi Chamber,
Laxmi Nagar, Delhi vide lettr No. F.DEO(E)/Admn./1(114)/
2009/2078-95 dated 05.09.2016.
9. The management no.2 in its written statement has
denied all the other averments made in the statement of claim
by the workman and has prayed for dismissal of the claim
petition.
10. Thereafter, vide order dated 10.08.2018, the following
issues were framed in view of pleadings of the parties and
terms of reference :
(i) Whether there existed an employer/employee
relationship between workman and management no.2 ?
OPW
(ii) Whether the service of workman has been
terminated illegally and/or unjustifiably by the
management ? OPW
(iii) If the answer to the above mentioned issue is in
affirmative, then as to what consequential relief is the
workman entitled for ? OPW
(iv) Relief.
11. The case was, thereafter, fixed for evidence of
workman.
12. During the pendency of trial of the case, the workman
Mohd. Athar had expired on 09.07.2019 and AR for the
workman had placed on record the death certificate of the
deceased workman Mohd. Athar. AR for the workman had
thereafter filed an application u/o 22 rule 3 r/w Section 151
CPC for impleadment of LR's of deceased workman
alongwith another application u/s 5 of Limitation Act for
condonation of delay in filing the aforesaid application. Vide
LIR No.9291/2016; Mohd. Athar Vs.
Ex-Man Raghav Security Services Pvt. Ltd. Page No. 6 of 29
order dated 06.03.2021, passed by Ld. Predecessor of this
Court, the application u/o 22 rule 3 r/w Section 151 CPC for
impleadment of LR's of deceased workman Mohd. Athar as
well as another application u/s 5 of Limitation Act for
condonation of delay have been dismissed and vide separate
Award dated 06.03.2021, claim of the workman was
dismissed as abated.
13. Thereafter, legal heirs of deceased workman Mohd.
Athar had filed an application for review of order dated
06.03.2021, which was allowed by Ld. Predecessor of this
Court vide order dated 19.07.2022 with the directions to legal
heirs of the deceased workman to file the amended memo of
parties on record. Pursuant to order dated 19.07.2022, AR for
the claimant (legal heirs of deceased workman) had filed
amended memo of parties and accordingly legal heirs of
deceased workman Mohd. Athar i.e. Smt. Reshma Khatoon
(w/o late Mohd. Athar) and Sh. Mohd. Jakir (son of late
Mohd. Athar) were substituted as claimants in present case,
in place of deceased workman.
EVIDENCE OF WORKMAN
14. Thereafter, case was fixed for workman's evidence.
15. In order to prove its case, the claimant Smt. Reshma
Khatoon (wife of deceased workman) appeared as witness
and filed her evidence by way of affidavit Ex.WW1/A
wherein she reiterated the contents of statement of claim, on
solemn affirmation. Besides this, she had also relied on
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Ex-Man Raghav Security Services Pvt. Ltd. Page No. 7 of 29
following documents in her evidence:-
i) Ex.WW1/1 is the copy of complaint filed before the
Labour Office (OSR).
ii) Ex.WW1/2 is the copy of legal demand notice dated
24.01.2015 (OSR) jointly sent by the workmen to
the management.
iii) Ex.WW1/3 is the copy of postal receipt vide which
legal demand notice dated 24.01.2015 (OSR) was
jointly sent by the workmen to the management.
iv) Ex.WW1/4 is the copy of statement of claim jointly
filed by workmen in the Conciliation proceedings
(OSR).
v) Mark A is the copy of statement of claim filed by the
deceased workman before the Shops &
Establishment Act, 1954.
vi) Ex.WW1/5 is the copy of order dated 29.12.2015
passed by Shops & Establishment Act, 1954 (OSR)
in favour of deceased workman.
vii) Mark-B are the copies of attendance register.
16. She was cross-examined by Ld. AR for
management no.2. Thereafter workman's evidence was
closed, at his request.
EVIDENCE OF MANAGEMENT
17. The management no.2 has examined Ms. Madhu
Bhatia as M2W1 who has filed her evidence affidavit
Ex.M2W1/A wherein he reiterated the contents of written
statement. Besides this, he had also relied on the agreement
LIR No.9291/2016; Mohd. Athar Vs.
Ex-Man Raghav Security Services Pvt. Ltd. Page No. 8 of 29
dated 22.03.2010 as Ex.M2W1/1 (OSR).
18. This Court has heard the final arguments addressed
by AR for both the sides and also gone through the
documents and materials on record. The issue-wise findings
of this Court are as under:
ISSUE NO.1
Whether there existed an employer/employee
relationship between workman and management
no.2 ? OPW
19. The onus to prove this issue was on claimants, i.e.
LRs of workman.
20. The workman Mohd. Athar had expired on 09.07.2019
during pendency of proceedings of this case and thus Smt.
Reshma Khatoon (wife of deceased workman Mohd. Athar)
and Sh. Mohd. Jakir (son of deceased workman) were
substituted as his legal representative. Smt. Reshma Khatoon
has been examined to prove the claims of deceased workman
Mohd. Athar and Smt. Reshma Khatoon has tendered her
evidence by way of affidavit Ex.WW1/A wherein she has
specifically stated that workman Mohd. Athar was appointed
by management no.1 in November 2007 and workman was
deployed and working at management no.2 at alleged time of
his termination. In her cross-examination, WW1 Smt.
Reshma Khatoon has fairly conceded that workman Mohd.
Athar (now dead) was appointed by management no.1 to
work in management no.2. She has also conceded in her
cross-examination by Ld. AR for management, that
LIR No.9291/2016; Mohd. Athar Vs.
Ex-Man Raghav Security Services Pvt. Ltd. Page No. 9 of 29
attendance register of workman was maintained by
management no.1 and that it was management no.1 which
was paying monthly wages/salary to workman. She has
deposed in her cross-examination before Court that leaves of
workman were sanctioned by management no.2. WW1
Reshma Khatoon has stated on oath in her evidence affidavit
that deceased workman had employer-employee relationship
with both management nos. 1 and 2. However no
documentary evidence has been placed on record on behalf of
deceased workman to prove employer-employee relationship
with management no.2. It is also relevant to note here that
WW1 Smt. Reshma Khatoon has relied on copy of order
dated 29.12.2015 of Designated Authority in complaint filed
by deceased workman against management under Shops &
Establishment Act, which is marked as Ex.WW1/5 and
perusal of this document Ex.WW1/5 shows that it has been
observed therein that grievances of workman in the complaint
filed before said Authority was that his wages were neither
paid by contractor/management (mentioned therein as M/s
Ex-Man Raghav Security Services Pvt. Ltd. only) nor by
principal employer. Thus, from perusal of document
Ex.WW1/5 relied upon on behalf of workman in his
evidence, it appears that in his claim/complaint filed only
against Ex-Man Raghav Security Services Pvt. Ltd. before
Authority under Delhi Shops & Establishment Act the
management no.2 M/s Ex-Man Raghav Security Services
Pvt. Ltd. (respondent therein) was mentioned as Contractor,
who had deployed the workman (now dead) Mohd. Athar to work with principal employer/management no.2 herein, which clearly shows that workman was under control and LIR No.9291/2016; Mohd. Athar Vs. Ex-Man Raghav Security Services Pvt. Ltd. Page No. 10 of 29 supervision of management no.1.
21. The management no.2, on other hand, has asserted that there is no employer-employee between management no.2 and workman and management no.2 had no direct control and supervision over workman and that management no.2 had never terminated workman. Management no.2 has examined Ms. Madhu Bhatia, SDM (Election) as M2W1 in its defence and she has stated in her evidence affidavit Ex.M2W1/A on oath that management no.1 Ex-Man Raghav Security Services Pvt. Ltd. was awarded contract by management no.2 for providing Sweepers-cum-Chowkidars at all Voter Centres of District East Delhi, except Lakshmi Nagar and this contract awarded to management no.1 was for period from 01.01.2010 till 31.12.2010 which was further extended upto 31.03.2014 and M2W1 has relied on copy of aforesaid contract/agreement dated 22.03.2010 between management no.2 and management no.1 which is exhibited as Ex.M2W1 (colly.).
22. During her cross-examination, M2W1 Ms. Madhu Bhatia has stated that workman was working at premises of management no.2 and he was appointed by management no.1 and she has stated further in her cross-examination that it was management no.1 which had issued identity card to deceased workman, which he used for purpose of gaining access to premises of management no.2 and that attendance of workman Mohd. Athar was marked in register of management no.1, left at office of management no.2.
LIR No.9291/2016; Mohd. Athar Vs. Ex-Man Raghav Security Services Pvt. Ltd. Page No. 11 of 29
23. The testimony of M2W1 Ms. Madhu Bhatia has remained intact and during her cross-examination, she remained consistent on her version that deceased workman was only working in premises of management no.2 from 01.01.2010 to 31.03.2014 and that workman was deployed there through contractor, i.e. management no.1. She has categorically denied the suggestion of AR for workman that deceased workman had worked in management no.2 from 01.11.2007 till 31.12.2014 and also denied suggestion that deceased workman was illegally terminated by management no.2 on 01.01.2015. She also denied the suggestion that management no.2 had direct control and supervision over workman.
24. No documentary evidence has been produced by WW1 Reshma Khatoon in her evidence to show that deceased workman Mohd. Athar was employee of management no.2. There is absolutely no evidence on record to show that workman Mohd. Athar (now dead) was given any benefit, uniform, punching card, identity card by management no.2. There is absolutely no evidence on record to show that management no.2 had any direct control and supervision on him. Instead, admittedly salary of workman (now dead) was paid by management no.1 and even his attendance was maintained by management no.1 and thus it is clear that control and supervision of workman Mohd. Athar during said period was always with management no.1.
25. In the case of International Airport Authority of India Vs. International Air Cargo Workers' Union (2009) 13 SCC LIR No.9291/2016; Mohd. Athar Vs. Ex-Man Raghav Security Services Pvt. Ltd. Page No. 12 of 29 374, after considering the decision of Hon'ble Supreme Court of India in the case of Steel Authority of India Ltd. and Ors. Vs. National Union Waterfront Workers and Ors. (2001) 7SCC, it has been observed and held in paragraphs 38 and 39 as under :-
"38. The tests that are applied to find out whether a person is an employee or an independent contractor may not automatically apply in finding out whether the contract labour agreement is a sham, nominal and is a mere camouflage. For example, if the contract is for supply of labour, necessarily, the labour supplied by the contractor will work under the directions, supervision and control of the principal employer but that would not make the worker a direct employee of the principal employer, if the salary is paid by a contractor, if the right to regulate the employment is with the contractor, and the ultimate supervision and control lies with the contractor.
39. The principal employer only controls and directs the work to be done by a contract labour, when such labour is assigned/allotted/sent to him. But it is the contractor as employer, who chooses whether the worker is to be assigned/allotted to the principal employer or used otherwise. In short, worker being the employee of the contractor, the ultimate supervision and control lies with the contractor as he decides where the employee will work and how long he will work and subject to what conditions. Only when the contractor assigns/sends the worker to work under the principal employer, the worker works under the supervision and control of the principal employer but that is secondary control. The primary control is with the contractor."
26. In SAIL Vs. National Union Waterfront Workers, (2001) 7 SCC 1, it was observed that in the absence of a notification under Section 10 of the CLRA Act, unless there are allegations or findings regarding a contract being sham, the workmen of the contractor, cannot be held to be LIR No.9291/2016; Mohd. Athar Vs. Ex-Man Raghav Security Services Pvt. Ltd. Page No. 13 of 29 employees of the appellant (principal employer therein), but shall be considered employee of the contractor.
27. In judgment of Sunflag Iron and Steel Company Ltd. Vs. State of Maharashtra AIR 2015 BOM 38 it was categorically observed by Hon'ble Bomaby High Court that :
"Contract Labour is employee of contractor and not of principal employer."
28. Thus it has been settled through judicial precedents that the contractual employees are engaged through contractors, their service conditions are governed by the contracts between the workman and the contractor. The appointment orders to the contractual employees are not given by the principal employer, but are given by the contractor. They work with the principal employer through contractor, only during the contract period. After the contract period is over, their contractor may enter into a contract with another establishment and shift them to work there. From that view of the matter also, they cannot be treated like permanent employees of the principal employer.
29. Thus, applying the analogy of the abovesaid judicial precedents and legal provisions to facts of present case, in the present case neither any documentary evidence showing extension of contract of the contractor/management no.1 with the workman Mohd. Athar (now deceased) has been shown to exist nor are there allegations by workman (now dead) that the contract between management no.1 and 2 was sham and bogus and in these conditions, the workman Mohd. Athar LIR No.9291/2016; Mohd. Athar Vs. Ex-Man Raghav Security Services Pvt. Ltd. Page No. 14 of 29 (now dead) cannot be held to be employee of management no.2.
30. Thus, in light of judgment in Sunflag Iron and Steel Company Ltd. Vs. State of Maharashtra (Supra), this Court has come to conclusion that workman Mohd. Athar (now deceased) was employee of contractor, i.e. management no.1 only during the relevant period and nothing has been shown or proved on record to hold that management no.2 was his employer. Thus, in view of foregoing discussion, this Court is of the considered opinion that there was no an employer- employee relationship between management no.2 and workman (now deceased). Accordingly, this issue is decided against workman and in favour of management no.2.
ISSUE NO.2 Whether the service of workman has been terminated illegally and/or unjustifiably by the management ? OPW
31. The onus to prove this issue is on workman.
32. The workman has asserted that he was appointed by management no.1 on 05.11.2007 and that at the time of his alleged illegal termination on 01.01.2015, he was deployed to work with management no.2.
33. The management no.2, on the other hand, has denied employer-employee relationship with workman instead, management no.2 has asserted that it had engaged management no.1 as contractor by virtue of agreement/contract dated 22.03.2010 Ex.M2W1/1 (colly.) LIR No.9291/2016; Mohd. Athar Vs. Ex-Man Raghav Security Services Pvt. Ltd. Page No. 15 of 29 which was for providing security guards at various Voter Centres in Delhi for period from 01.01.2010 till 31.12.2010 and that the abovesaid contract was extended upto 31.03.2014. Management no.2 has asserted that up till 31.03.2014, all wages were paid to security guards deployed at its premises by management no.1 and that claimant was never terminated by management no.2 or on 01.01.2015 and that it had no direct control or supervision on workman.
34. This Court had given specific finding in Issue no.1 hereinabove after detailed discussion, that there was no employer-employee relationship between management no.2 and workman and therefore, in these circumstances, no question of termination of workman by management no.2 arises. It is also important to note that the workman had served demand notice dated 24.01.2015 Ex.WW1/2 regarding his illegal termination only upon management no.1 and workman had demanded reinstatement in service with full back wages, from management no.1 only and not from management no.2. Instead, only a copy of aforesaid demand notice was forwarded to management no.2 with request to withhold the payment of management no.1/contractor till release of wages/monetary benefits by management no.1 to claimant/workman.
35. In this regard, it is important to refer to judgment of the Hon'ble Supreme Court in landmark case of Sindhu Resettlement Corpn. Ltd. Vs. Industrial Tribunal Gujarat & Ors. reported as AIR 1968 SC 529 held that since the workmen had not raised any demand with the management LIR No.9291/2016; Mohd. Athar Vs. Ex-Man Raghav Security Services Pvt. Ltd. Page No. 16 of 29 challenging their retrenchment or seeking reinstatement, the question of reinstatement could not have been referred by the appropriate Government in the Labour Court. In the aforesaid case, the workmen had invoked the conciliation machinery without raising a demand to the employer and it was held that a mere demand to a Government, without a dispute being raised by the workmen with the employer, cannot become an industrial dispute.
36. The above judgment was followed by a Division Bench of Hon'ble High Court of Delhi in Fedders Lloyd Corpn. Pvt. Ltd. vs. LG of Delhi AIR 1970 Delhi 60 and the relevant observations of the Hon'ble High Court of Delhi in para 13 of the judgment is reproduced herein :
"The Supreme Court has also clarified that even if the Conciliation Officer found that an industrial dispute existed and so reported to the Govt., this could not be regarding as the existence of the industrial dispute which has to be founded upon a demand by the workmen on the employers. If this is the ratio of the Supreme Court decision, it cannot be said that an industrial dispute existed in the present case as no demand was made by respondent no.3."
37. The judgment of the Hon'ble Delhi High Court in the case of New Delhi Tailoring Mazdoor Union Vs S.C. Sharma Company (Pvt.) limited etc, 1979 (39) F.L.R. 195, following the judgment of Hon'ble the Supreme Court in the case of Sindhu Resettlement Corporation Limited (Supra), has held that in the absence of demand notice having been served upon the management before conciliation proceedings, would vitiate the order of reference.
LIR No.9291/2016; Mohd. Athar Vs. Ex-Man Raghav Security Services Pvt. Ltd. Page No. 17 of 29
38. In Nagender Sharma Vs. Management of M/s Rajasthan Timber Corporation ILR (2006) 1 Delhi 1030, a series of judgments of the Hon'ble Apex Court have been discussed and referred to including the aforesaid judgment of the Hon'ble Supreme Court in the case of Shambhu Nath Dayal Vs. Bank of Baroda (1978) 2 SCR 793 and the judgment of Hon'ble Supreme Court in the case Sindhu Resettlement Corporation Limited Vs. Industrial Tribunal of Gujrat AIR 1968 SC 529. According to the judgment in Sindhu Resettlement (Supra) the Hon'ble Apex Court was of the view that "If no dispute at all is raised by the respondents with the management, any request sent by them to the Government would only be by them and not an industrial dispute between them and their employer". It was opined in the judgment of Sindhu Resettlement Corporation Limited Vs. Industrial Tribunal of Gujrat that :
"A mere demand to a government, without a dispute being raised by the workmen with their employer cannot become an industrial dispute." The facts of Shambhu Nath Dayal (supra) case were distinguished in these words" It is noteworthy that in Shambhu Nath Dayal Case (supra) the petitioner had agitated against his dismissal and had even filed on appeal before the bank against the same. Therefore, the court was of the view that the petitioner had been persistently demanding reinstatement from its employer and for this reason, rendered the judgment as noticed above."
39. The Hon'ble High Court of Delhi in the case Nagender Sharma (Supra) had referred to an earlier judgment of the case New Delhi Tailoring Mazdoor Union Vs. S.C. Sharma 1979 (39) FLR 195 and had reproduced a portion of the said judgment to bring home the point that case of the Sambhu Nath Dayal (Supra) was decided on the particular facts of the LIR No.9291/2016; Mohd. Athar Vs. Ex-Man Raghav Security Services Pvt. Ltd. Page No. 18 of 29 said case and the law laid down in the Sindhu Resettlement (Supra) case was good law and has followed and the relevant extract from judgment of Nagendra Sharma (Supra) is being reproduced herein under :
"It is clear that the Bench in Shambhu Nath Goyal's case has not overruled Sindhu Resettlement Corporation Ltd; but distinguished it. Shambhu Nath Goyal's case has been decided on its particular facts, and a demand had actually been made on the management. The two cases, can, therefore, be reconciled. In any event, a decision of a smaller bench cannot be deemed to have overruled the decision of a larger bench. In case of any conflict the decision of a larger bench of three in Sindhu Resettlement Corporation Limited must prevail. In State of U.P. Vs. Ram Chander (Supra) the Supreme Court has observed that the opinion expressed by larger benches is to be followed in preference to smallar benches. Sindhu Resettlement Corporation Limited is, therefore, still good law and has to be followed."
40. Placing reliance on judgment of Hon'ble High Court of Delhi in case of Nagender Sharma's case (Supra) which in turn held that law laid down in case of Sindhu Resettlement (Supra) is good law, it can be said that in the present case since the workman had not raised demand of reinstatement or illegal termination from the management no.2 by sending demand notice to it and thus, there was no industrial dispute in existence between the workman and management no.2, when the workman had approached the government and present reference was made to this Labour Court for adjudication. Since, the workman had never made grievance of his illegal termination to management no.2 nor he had made any demand of reinstatement in service with back wages from management no.2, as demand letter was addressed to management no.1 only, therefore, in light of LIR No.9291/2016; Mohd. Athar Vs. Ex-Man Raghav Security Services Pvt. Ltd. Page No. 19 of 29 aforesaid judicial precedents no question of illegal termination of workman by management no.2 arises as no such demand was made by workman from management no.2.
41. The proceedings of present case were conducted ex- parte against management no.1 which has failed to appear and defend the case, despite due service.
42. Since the testimony of WW-1 Smt. Reshma Khatoon in support of present claim regarding fact that Mohd. Athar (now deceased) was employee of management no.1 and was illegally terminated on 01.01.2015 by management no.1 has remained unchallenged and unrebutted by management no1., therefore, unrebutted version of WW-1 Smt. Reshma Khatoon has to be accepted against management no.1 regarding claim of illegal termination of its workman Mohd. Athar on 01.01.2015. Thus, in view of foregoing discussion, this Court holds that it has been proved that workman Mohd. Athar (now deceased) was employee of management no.1 only and he was illegally and unjustifiably terminated by management no.1 w.e.f. 01.01.2015. Accordingly, this issue is decided in favour of workman and against management no.1. Further, in absence of employer-employee relation between management no.2 and workman, no question of illegal termination of workman by management no.2 arises and accordingly, this issue is decided against workman and in favour of management no.2.
RELIEF
43. The AR of deceased workman has prayed for LIR No.9291/2016; Mohd. Athar Vs. Ex-Man Raghav Security Services Pvt. Ltd. Page No. 20 of 29 compensation along with full back wages and consequential benefits in favour of legal heirs of deceased workman as workman has already expired on 09.07.2019.
44. This Court has considered the arguments and perused the record. It is settled law that reinstatement and back wages are not automatic and it depends upon the facts and circumstances of each case. In Ashok Kumar Sharma Vs Oberoi Flight Services reported as AIR 2010 Supreme Court 502, Hon'ble Supreme Court while relying upon various judgments of the Hon'ble Supreme Court held that lump-sum compensation in lieu of reinstatement and back wages would be appropriate. The relevant para of judgment is reproduced as under:
"21. The question, which, however, falls for our consideration is as to whether the Labour Court was justified in awarding reinstatement of the appellants in service.
22. Keeping in view the period during which the services were rendered by the respondent (sic appellants); the fact that the respondent had stopped its operation of bee farming, and the sen/ices of the appellants were terminated in December 1996, we are of the opinion that it is not a fit case where the appellants could have been directed to be reinstated in service.
23. Indisputably, the Industrial Court, exercises a discretionary jurisdiction, but such discretion is required to be exercised judiciously. Relevant factors therefore were required to be taken into consideration; the nature of appointment, the period of appointment, the availability of the job, etc. should weigh with the court for determination of such an issue.
24. This Court in a large number of decisions opined that payment of adequate LIR No.9291/2016; Mohd. Athar Vs. Ex-Man Raghav Security Services Pvt. Ltd. Page No. 21 of 29 amount of compensation in place of a direction to be reinstated in service in cases of this nature would subserve the ends of justice. Jaipur Development Authority v. Ramsahai [(2006) 11 SCC 684] : (2006 AIR SCW 5963), M.P. Admn. v. Tribhuban [(2007) 9 SCC 748] : (2007 AIR SCW 2357) and Uttaranchal Forest Development Corpn. v. M.C. Joshi [(2007) 9 SCC 353] :
(2007 AIR SCW 7305).
25. Having regard to the facts and circumstances of this case, we are of the opinion that payment of a sum of Rs.
1,00,000 to each of the appellants, would meet the ends of justice. This appeal is allowed to the aforementioned extent. In the facts and circumstances of this case, there shall be no order as to costs."
45. In Delhi Horticulture Vs. Delhi Administration (1992) 1 LLN 939, which was a case involving termination of a casual worker in violation of Section 25-F of the Industrial Disputes Act, the Hon'ble Supreme Court of India directed the employer to pay a compensation of INR 23,000 in lieu of dismissal as opposed to reinstatement for the following reasons :
"(i) the workman had worked only for a brief period of 11 months
(ii) no junior to the workman was allowed to continue in service
(iii) the workman was engaged as a casual labour for a brief period on daily wages
(iv) there was a gap of 8 years computing from the date of removal
(v) at the time of removal, the workman was only 18-
19 years of age and even after 8 years he would be LIR No.9291/2016; Mohd. Athar Vs. Ex-Man Raghav Security Services Pvt. Ltd. Page No. 22 of 29 reinstated only as a casual labour on daily wages."
46. The Hon'ble High Court of Delhi in case titled as Indian Hydraulic Industries Pvt. vs Kishan Devi And Bhagwati Devi (2007) IIILLJ 55 Del has held as under:
"5. It is now settled law that even if the termination of a person is held illegal, the Labour Court is not supposed to direct reinstatement along with full back wages and the relief can be moulded according to facts and circumstances of each case. The Court has to adopt a pragmatic approach and take into account the allegations made by the work-women, the nature of contribution by the work-women to the industry, the time gap and averments made about the unemployment and proof of unemployment as the relevant factors to be considered in such cases. The Labour Court can allow compensation to a workman instead of reinstatement and back wages. Undisputably, both the work-women were considered as part-time employees by the Tribunal. Both were working for two hours per day for cleaning and sweeping of floors. Obviously, the rest of the time of the day was being utilized by the work-women for similar work at other places. They could not be said to be unemployed in the sense as of a full time worker is rendered unemployed.
47. In the case at hand, it has been established on record that workman Mohd. Athar (now deceased) was an employee of the management no.1 and as per the evidence adduced, it has been established on record that he had been in the service of management no.1 from November 2007 till his illegal termination by the management no.1 on 01.01.2015, that is, for about six years and one month. The workman had expired on 09.07.2019 during pendency of proceedings of present case and thus reinstatement has not LIR No.9291/2016; Mohd. Athar Vs. Ex-Man Raghav Security Services Pvt. Ltd. Page No. 23 of 29 been prayed and therefore, in the facts and circumstances of the present case, lump-sum compensation, to legal heirs of deceased workman shall be appropriate relief and shall meet the ends of justice, in the present case.
48. Regarding the issue of payment of back wages to the workman, in G.M. Haryana Roadways Vs. Rudhan Singh (2005) 5 SCC 591, it was held that :
"There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calender year."
49. The Hon'ble Supreme Court of India in case titled as Novartis India Ltd. vs. State of West Bengal (SLP (C) LIR No.9291/2016; Mohd. Athar Vs. Ex-Man Raghav Security Services Pvt. Ltd. Page No. 24 of 29 No.21254/2007) was pleased to hold that:
"This Court, in a number of decisions opined that grant of back wages is not automatic. The burden of proof that he remained unemployed would be on the workmen keeping in view the provisions contained in Section 106 of the Evidence Act, 1972."
50. In Muir Mills Unit of NTC (U.P.) Ltd. v. Swayam Prakash Srivastava and another, [(2007) 1 SCC 491], it was held :-
"46. We are also of the view that the award of the Labour Court is perverse as it had directed grant of back wages without giving any finding on the gainful employment of Respondent 1 and held that the discontinuance of the services of a probationer was illegal without giving any finding to the effect that the disengagement of Respondent 1 was in any manner stigmatic. In the decision in M.P. SEB v. Jarina Bee 2 this Court held that payment of full back wages was not the natural consequence of setting aside an order of removal. In the instant case, though the termination was as far back as in 1983, the industrial adjudicator has not given any finding on unemployment."
51. The Hon'ble High Court of Delhi in case titled as Indian Hydraulic Industries Pvt. vs Kishan Devi And Bhagwati Devi, (2007) IIILLJ 55 Del has held as under:
"5. It is now settled law that even if the termination of a person is held illegal, the Labour Court is not supposed to direct reinstatement along with full back wages and the relief can be moulded according to facts and circumstances of each case. The Court has to adopt a pragmatic approach and take into account the allegations made by the work- women, the nature of contribution by the work-women to the industry, the time gap and averments made about the unemployment and proof of unemployment as the relevant factors to be considered in such cases. The Labour Court can allow compensation to a workman instead of reinstatement and back wages.
LIR No.9291/2016; Mohd. Athar Vs. Ex-Man Raghav Security Services Pvt. Ltd. Page No. 25 of 29 Undisputably, both the work-women were considered as part-time employees by the Tribunal. Both were working for two hours per day for cleaning and sweeping of floors. Obviously, the rest of the time of the day was being utilized by the work-women for similar work at other places. They could not be said to be unemployed in the sense as of a full time worker is rendered unemployed.
52. In Kendriya Vidyalaya Sangathan and Anr. v. S.C.Sharma, (2005) 2 SCC 363, the Hon'ble Supreme Court of India had observed as under:
"When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard".
53. The Hon'ble High Court of Delhi in case titled as Indian Hydraulic Industries Pvt. vs. Kishan Devi And Bhagwati Devi, (2007) IIILLJ 55 Del has also held as under:
"7. In the present case looking into the fact that the respondents were part-time employees working only for two hours a day and had absented from duty of their own, I consider it a fit case where compensation should have been awarded by the Labour Court instead of reinstatement and back wages. I consider that a compensation of Rs. 36,000/- to each workman shall meet the ends of justice. The writ petition is allowed to this extent and the relief granted by the Labour Court is modified and it is directed that in lieu of reinstatement and back wages, a compensation of Rs. 36,000/- be paid to the each work-woman. This amount has already been paid to the respondents asper record, under the directions of this Court. No order as to costs."
54. The Hon'ble Supreme Court of India in case titled as LIR No.9291/2016; Mohd. Athar Vs. Ex-Man Raghav Security Services Pvt. Ltd. Page No. 26 of 29 Rajasthan State Road Transport vs Phool Chand (D) (2018) 18 SCC 299 has held as under:
"It is necessary for the workman in such case to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee".
55. The Hon'ble Delhi High Court in the cases titled The Commissioner, Kendriya Vidyalaya Sangathan v. Dr. Dharmendra Singh, 2016 SCC Online Del 4718, has held as under:-
"44. So far as grant of back wages is concerned, it depends upon case to case. The issue of payment of back wages on reinstatement of a workman has been discussed by this court in LPA No.24/2013 titled "Delhi Transport Corporation v. Sarjeevan Kumar" decided on 21st January, 2013, the legal proposition in this regard was enunciated as under:-
(i) Payment of full backwages is not automatic on Labour Court/Tribunal granting reinstatement of workman.
(ii) The same principle is equally applicable in case an order of dismissal is set aside by the Labour Court/Tribunal on the ground of non-compliance of Section 25F of the I.D. Act.
(iii) The Labour Court/Tribunal shall give reasons for determining the specified quantum of backwages.
(iv) The burden is on the workman to show that he is entitled to full backwages or to a reasonable backwages and he is not gainfully employed during the period he was not in service of the management.
(v) Once materials are placed by workman on the above, the burden shifts on to the Management to disprove such claim.
(vi) In the event, the Labour Court/Tribunal LIR No.9291/2016; Mohd. Athar Vs. Ex-Man Raghav Security Services Pvt. Ltd. Page No. 27 of 29 fails to give any reason to quantify backwages, the High Court can go into the said issue and decide on on quantum.
In Writ Petition No.966 of 1995 titled Vijay D. Wani v. The Cantonment Executive Officer Cantonment Board, the Bombay High Court has granted 50% backwages to the delinquent employee which was upheld by the Hon'ble Supreme Court in Cantonment Executive Officer v. Vijay D. Wani reported in AIR 2008 SC 2953 relevant para 9 and 10 are recapitulated as under:
9. So far as grant of back wages is concerned, it depends upon case to case. But in the present case as the respondent was found guilty by the Cantonment Board but the order of Cantonment Board was sent aside because it suffered from bias and it will be unfair to deny 50% back wages to the respondent (herein).
The Division Bench also directed that more than 13 years have passed, therefore, it did not permit the respondent to proceed against the petition afresh. The Division Bench decided the matter on 10th January, 2005 and now more than 16 years have lapsed.
Therefore, it would not be fair to permit the respondent to proceed afresh in the matter. Consequently, we do not find any merit in this appeal and the same is dismissed.
The respondent be reinstated with the benefit of 50% back wages and continuity of service".
56. In the case at hand, it has already been observed by this Court that the length of service of the workman (now dead) with the management no.1 was for a period of approximately six years and in these circumstances, grant of compensation for his illegal termination would be appropriate relief and reliance is in this regard is placed on the judgment in G.M. Haryana Roadways Vs. Rudhan Singh (Supra).
57. It has been held by the Hon'ble High Court in Shyamji Srivastava & Ors. Vs. Management of M/s Public Works Departments & Ors. 2014 LLR 130 that :
LIR No.9291/2016; Mohd. Athar Vs. Ex-Man Raghav Security Services Pvt. Ltd. Page No. 28 of 29 "Principal employer is liable for payment of wages to the workmen as per section 21 (4) of the Contract Labour (Regulation & Abolition) Act when the immediate employer i.e. contractor fails to discharge his obligation.
Even it is categorically stated in Section 34 of the Industrial Disputes Act, 1947 that in the event of the contractor failing to pay wages, the principal employer should be liable to pay the wages to the workmen."
58. Therefore, in light of the foregoing discussion and observations, this Court deems it fit to direct management no.1 to pay lump-sum compensation of sum of Rs.4,00,000/- to the legal heirs of deceased workman, that is, Smt. Reshma Khatoon (his wife) and Mohd. Jakir (his son), who have been substituted as claimants in place of deceased workman.
59. Management no.1 is directed to pay the aforesaid amount within 30 days of publication of this award to the claimants, failing which, the amount shall also be carrying an interest @ 8% per annum till the date of its realization.
60. Award is passed and reference is answered accordingly.
61. Digitally signed copy of the award be sent to the Labour Commissioner for publication. The award be also sent to server. File be consigned to Record Room.
Digitally signedRITU by RITU SINGH Date:
SINGH 20:23:21 +0530 2024.07.20 Announced in the open (RITU SINGH) Court on 20.07.2024 District Judge, Presiding Officer Labour Court- IV, Rouse Avenue District Courts, New Delhi LIR No.9291/2016; Mohd. Athar Vs. Ex-Man Raghav Security Services Pvt. Ltd. Page No. 29 of 29