Delhi District Court
Sunil Kumar vs M/S Travel Oyster India Pvt Ltd on 22 July, 2025
Sunil Kumar Vs. M/s Travel Oyster India Pvt. Ltd.
LIR No.295/2024
IN THE COURT OF DR. SURENDER MOHIT SINGH,
DISTRICT JUDGE
PRESIDING OFFICER: LABOUR COURT-08
ROUSE AVENUE DISTRICT COURTS: NEW DELHI
LIR No.295/2024
CNR No. DLCT-13-001512-2024
Sh. Sunil Kumar
S/o Late Sh. Birbal Kakkar
R/o H.No.16/15, Geeta Colony,
Delhi - 110031
Through : Sh. N.K. Mishra (President)
Karmsheel Mazdoor Sangharsh Union,
Ch.No.X-47, Civil Wing,
Tis Hazari Court, Delhi - 110045
...Workman
Versus
M/s Travel Oyster India Pvt. Ltd.
B-84/1, Okhla Industrial Area, Phase-II,
New Delhi - 110020
Also At:
M/s Travel Oyster India Pvt. Ltd.
W-97, Greater Kailash, Part-II,
New Delhi - 110048
... Management
Date of Institution : 22.03.2024
Date of Award : 22.07.2025
AWARD
1. Reference under Section 10(1)(c) read with Section
12(5) of the Industrial Disputes Act, 1947 has been received from
Deputy Labour Commissioner, South-East District, Labour
Welfare Centre, Bal Mukund Khand, Giri Nagar, Kalkaji, New
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Sunil Kumar Vs. M/s Travel Oyster India Pvt. Ltd.
LIR No.295/2024
Delhi setting out following dispute for adjudication by the
Court:-
"Whether the services of workman Sh. Sunil
Kumar S/o Late Sh. Birbal Kakkar, Aged 46
years, Mobile No.9311199966, have been
terminated illegally and/or unjustifiably by
the management; and if so, to what relief is
he entitled and what directions are necessary
in this respect?"
2. Statement of claim filed by workman Sh. Sunil
Kumar in pursuance to the present Reference stating therein that
he was employed with the management since 18.06.2015 as
'Account Clerk' and his last drawn monthly salary was
Rs.44,000/-. It is averred that there was another firm namely 'M/s
Bihari Lal Jaipuria Ltd. functioning from the same address of
management and Sh. Rishi Jaipuria and Sh. Sudhanshu Jaipuria
were the owners and directors of both the firms. It is further
averred that workman was getting salary from both the firms i.e.
some time from M/s Travel Oyster Pvt. Ltd. and some time from
M/s Bihari Lal Jaipuria Ltd. and some times half-half salary each
from both the firms.
3. It is further averred that workman had been working
sincerely, honestly and diligently as per the directions of
management and has not given any chance of complaint to it
during his entire service tenure due to which there is no
complaint against the workman.
4. It is further averred that service benefits including
appointment letter, attendance card, leave book, pay slip, earned
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LIR No.295/2024
leave and casual leave, overtime, 20% bonus, etc. were not
provided by management and on demanding the same,
management started harassing the workman against the Labour
Laws. Only attendance register was there in which attendance
was marked and salary used to be transferred in bank account.
5. It is further averred that when the workman demanded
his outstanding wages, the management on the pretext of paying
the same, got the signatures of workman on some blank papers,
blank vouchers and terminated the services of workman on
31.12.2020 in violation of Section 25F of I.D. Act without
paying outstanding dues, retrenchment compensation and one
month salary in lieu of notice.
6. It is further averred that demand notice dated
07.04.2021 was also served upon the management seeking
outstanding wages and reinstatement in service but management
failed to submit any reply to the same and the settlement also
could not be effected before the Conciliation Officer, Giri Nagar,
Kalkaji, New Delhi as the management despite giving assurance
to settle the matter failed to attend the proceedings.
7. It is further averred that workman had worked for 240
days every year and has not left the services on his own and is
still ready to work but despite approaching to the management,
neither the workman was taken back on service nor his
outstanding dues were paid. It is also averred that workman has
remained unemployed since the date of termination of his service
and is therefore entitled to be reinstated in service along with all
service benefits including back wages.
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LIR No.295/2024
8. Management/M/s Travel Oyster India Pvt. Ltd. has
filed the written statement inter alia contending that claimant
does not come under the category of 'Workman' as he was
working as Manager-Accounts (which is a supervisory post) and
his last drawn salary was Rs.44,000/- which was reduced to
Rs.22,000/- during the Covid-19 period. Hence, his actual last
drawn salary was Rs.22,000/- per month. It is averred that the
services of workman were never terminated illegally rather the
workman himself left the services of management stating that he
is starting his own placement agency from January, 2021. It is
averred that during the Covid period a meeting was organized
between the workers and management wherein decision to cut
the salary of employees including Directors was taken and same
was accepted by all the employees. All the other averments made
in the claim have been denied.
9. Rejoinder has also been filed by workman to the WS
of management wherein the averments made in the statement of
claim were reiterated and reaffirmed.
10. From the pleadings of the parties following issues
were framed vide order dated 13.08.2024 :-
(1) Whether the claimant is not covered under the
definition of workman as per Section-2(S) of I.D.
Act? OPM
(2) Whether the claimant left the services on his own?
OPM
(3) If the issue No.1 & 2 are decided in favour of the
claimant whether the services of claimant have been
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LIR No.295/2024
terminated illegally and unjustifiably by the
management? OPW
(4) Relief.
11. In support of his case, workman got examined himself
as WW-1 and tendered his evidence affidavit as Ex.WW-1/A by
reiterating the averments made in the statement of claim and
relying upon following documents :-
Identification Mark Description
Mark-A Copy of bank statement for the period
01.01.2020 to 31.12.2020.
Ex. WW-1/2 (OSR) Copy of demand notice.
Ex. WW-1/3 (OSR) Copy of receipt of speed post.
Ex. WW-1/4 (OSR) Copy of proceedings before Conciliation
Officer.
12. Workman/WW-1 was cross-examined by AR for
management on 18.10.2024 and during the course of cross-
examination, WW-1 admitted that he was working as Account
Clerk in management M/s Travel Oyster India Pvt. Ltd. since
16.06.2015 to 31.12.2020 and no one was working under him
and he has no company under his name. WW-1 deposed that he
was not doing any work outside the company. WW-1 deposed
that the screen shorts marked as Mark-A to D were put by him as
status on the saying of Sh. Girish (Job Consultant) as it was
assured by Sh. Girish that he will give Rs.500/- on each
successful job. WW-1 denied that he was working as Account
Manager in the management and 3-4 staff persons were working
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LIR No.295/2024
under him. Vide separate statement workman has closed WE on
18.10.2024.
13. Management on the other hand got examined MW-1
Sh. Pawan Kumar, Junior Accountant, M/s Alpha Radios who
tendered his evidence affidavit as Ex.MW-1/A and relied upon
following documents:-
Identification Mark Description
Ex. MW-1/1 (Colly Copies of ledger account for the period
6 pages) 01.11.2019 till 31.03.2021.
Ex. MW-1/2 Copy of the letter dated 20.02.2020.
14. MW-1 was cross-examined by AR for workman on
20.12.2024 and during the course of cross-examination MW-1
deposed that he has no document to show that he was working in
management and has come only to depose in the matter on behalf
of management. MW-1 admitted that in the WS and evidence
affidavit, management has not denied the date of joining of
workman with the management. MW-1 deposed that workman
was working with the management as Account Manager and not
as Account Clerk, however, no document is there on record to
show that workman was working as Accounts Manager. MW-1
admitted that monthly salary of workman was Rs.44,000/- and he
was performing his duty diligently. MW-1 deposed that he
cannot say whether the workman has himself left the job or he
was terminated from his services. MW-1 admitted that for the
period from June, 2020 to September, 2020 workman was not
paid full salary rather half of the salary was paid for the said
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LIR No.295/2024
period. MW-1 admitted that there was no lock-down during the
period from June, 2020 to September, 2020. MW-1 admitted that
he has not placed on record any document to show that during
the period June, 2020 to September, 2020 management was not
functioning. MW-1 deposed that demand notice Ex. WW-1/2
bears the correct address of management. MW-1 admitted that
document Mark ME-1/1 does not bear the signature of any
workman. MW-1 admitted that there were 7-8 employees
working with the management during the period 2015 to 2020
and denied that there were 25-30 employees working with the
management during the said period. MW-1 deposed that there are
two Directors in the management i.e. Sh. Rishi Jaipuria and Sh.
Sudhanshu Jaipuria. Vide separate statement AR for management
closed the ME on 20.12.2024.
15. AR for both the parties have addressed their
submissions/arguments by adverting to pleadings and testimony
in support of their respective contentions.
16. I have minutely perused the record and considered
their rival submissions. My issue-wise finding are recorded
below:
17. Issue No.1 - Whether the claimant is not covered
under the definition of workman as per Section-2(S) of I.D. Act?
OPM
18. The onus to prove this issue was upon the
management.
19. Section 2(s) of the I.D. Act defines "workman", which
is quoted below for ready reference:
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LIR No.295/2024
"2(s) "Workman" means any person
(including an apprentice) employed in
any industry to do any manual,
unskilled, skilled, technical,
operational, clerical or supervisory
work for hire or reward, whether the
terms of employment be express or
implied, and for the purposes of any
proceeding under this Act in relation to
an industrial dispute, includes any such
person who has been dismissed,
discharged or retrenched in connection
with, or as a consequence of, that
dispute, or whose dismissal, discharge
or retrenchment has led to that dispute,
but does not include any such person--
(i) who is subject to the Air Force Act,
1950 (45 of 1950), or the Army Act,
1950 (46 of 1950) or the Navy Act,
1957 (62 of 1957); or
(ii) who is employed in the police
service or as an officer or other
employee of a prison; or
(iii) who is employed mainly in a
managerial or administrative capacity;
or
(iv) who, being employed in a
supervisory capacity, draws wages
exceeding [ten thousand rupees] 13 per
mensem or exercises, either by the
nature of the duties attached to the
office or by reason of the powers vested
in him, functions mainly of a
managerial nature."
20. As per the above provision, a person to be qualified as
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LIR No.295/2024
a "workman" has to do any work of manual, unskilled, skilled,
technical, operational, clerical or supervisory in nature. But, the
latter part of the section excludes four classes of employees
including a person employed in a supervisory capacity drawing
wages exceeding Rs.10,000/- per month or exercises functions
mainly of a managerial nature.
21. In Sharad Kumar v. NCT of Delhi, (2002) 4 SCC 490,
the Hon'ble Supreme Court held that the determining factor for a
person to be qualified as "workman" as defined under section
2(s) of the I.D. Act is the nature of work done by him and not
merely on the designation of his post. In S.K. Maini v. Carona
Sahoo Co. Ltd., (1994) 3 SCC 510 the Hon'ble Supreme Court
also held that whether or not an employee is a "workman" under
section 2(s) of the I.D. Act is required to be determined with
reference to his principal nature of duties and functions; and the
designation of an employee is not of much importance and what
is important is the nature of duties being performed by the
employee.
22. In Ananda Bazar Patrika (P) Ltd. v. Workmen, (1970)
3 SCC 248 the Hon'ble Supreme Court held that merely having a
junior does not make an employee a supervisor or managerial
cadre.
23. The law is well settled that the key factor for
determining whether an employee qualifies as a "workman"
under section 2(s) of the I.D. Act, is the primary nature of duties
and functions performed by him in the establishment, rather than
his designation or job title.
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24. During the course of arguments, management alleged
that the claimant does not come under the category of workman
as he worked as Manager Accounts on a supervisory post and
three other employees were working under him and claimant
was drawing a salary of Rs.44,000/- per month.
25. The burden to prove the aforesaid facts is upon the
management and in order to prove the same it examined MW-1
and also relied upon ledger account i.e. Mark-ME-1/1 (Colly 6
pages). Although, MW-1 deposed that claimant was working as
Manager Accounts, however, the management has not adduced
any appointment letter, salary slip or organizational chart. MW-1
also failed to place on record any documentary proof or evidence
to show that the claimant was working as supervisor or as
Account Manager. Further, the Ex. ME-1/1 (Colly 6 pages) is an
unsigned document and hence it cannot be relied upon.
26. Management has not placed on record any specific
document relating to the actual work and functions performed by
the workman. There is no evidence on record to show that the
claimant was discharging managerial duties. In the absence of
any concrete material to demonstrate the nature of duties
discharged by the claimant, I of the considered opinion that the
management has failed to discharge its burden.
27. Accordingly, issue no.1 is decided in favour of
workman and against the management.
28. Issue no.2 - Whether the claimant left the services on
his own? OPM
29. The onus to prove this issue was upon the
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LIR No.295/2024
management.
30. For abandonment to be established, there must be
clear evidence of the workman's intention to relinquish his
position which often demonstrated through prolonged absence
without valid justification and abandonment has to be seen from
facts and circumstances of each case.
31. In M/s Fateh Chand Vs. Presiding Offcer, Labour
Court & Anr, W.P. (C) No.758/2007 the Hon'ble High Court of
Delhi held that :
"8.....It is also a settled legal position
that abandonment of service is different
from absenteeism. Abandonment of
service is the voluntarily
relinquishment of ones services with
the intention not to resume the same. It
is a matter of inference to be drawn
from the facts and circumstances of
each case and mere absenteeism for a
continuous period does not mean that
the employee has abandoned his
service. The management has to bring
on record sufficient material to show
that the employee has abandoned the
service and abandonment cannot be
attributed to the employee without there
being sufficient evidence. On the
failure to report for duty, the
management has to call upon the
employee and if he refuses to report,
then an enquiry is required to be
ordered against him and accordingly
action taken. In the absence of anything
placed on record by the petitioner
management, no presumption against
the respondent can be drawn."
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LIR No.295/202432. It is settled position of law that abandonment of service is the voluntarily relinquishment of ones service with the intention not to resume the same and it is different from absenteeism.
33. Further, the burden of proving abandonment rest squarely on the management. The management must follow due process in terminating the employment of a workman for abandonment. The management must ensure that he has given notice to the absentee workman to report back to work and he must provide opportunity to the workman to explain his absence from work. The management should also conduct proper enquiry, if no response is received from the workman.
34. Coming to the facts of the present case, the management alleged that it has never terminated the service of the claimant rather the claimant himself left the service of the management by stating that he has started his own placement agency.
35. The management/MW-1, in order to prove that the claimant has left voluntarily and started placement agency, has heavily relied upon document Mark-A to D. On perusal of these documents, it reveals that these documents are photocopies of whatsapp screen shorts bearing mobile No.9311199966 sharing some ads. The said documents are undated. During the cross- examination WW-1 denied running any placement agency, however, he admitted that the screen shots (Mark-A to D) were put by him as status for a job consultant (Sh. Girish) and he has placed some job advertisements on behalf of Sh. Girish for Page:12 of 18 Sunil Kumar Vs. M/s Travel Oyster India Pvt. Ltd.
LIR No.295/2024Rs.500/- per job in the year 2024. The aforesaid evidences on record are irrelevant as the year of termination is 2020.
36. Management has not adduced any document like attendance register or any other documentary evidence to prove that workman remained absent w.e.f January, 2021 and during cross-examination MW-1 also deposed that he is not aware whether the workman himself left the job or he was terminated from his services.
37. Management has also failed to show that he has issued any show-cause or warning notice to the claimant thereby calling him back for work or it has conducted an enquiry against the claimant.
38. Moreover, it is also pertinent to mention here that no suggestions were put to the claimant/WW-1 by the AR of management regarding the alleged absenteeism from job.
39. Hence, I am of the considered opinion that the management has failed to adduce any documentary evidence to show that the claimant has voluntarily left the job.
40. Accordingly, issue no.2 is decided in favour of workman and against the management.
41. Issue no.3 - If the issue No.1 & 2 are decided in favour of the claimant whether the services of claimant have been terminated illegally and unjustifiably by the management? OPW
42. The onus to prove this issue was upon the claimant.
43. Section 25F of Industrial Disputes Act, 1947 provides conditions precedent to retrenchment to workman as under:
Page:13 of 18 Sunil Kumar Vs. M/s Travel Oyster India Pvt. Ltd.LIR No.295/2024
44. "No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until:
(a) The workman has been given one month 's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice.
(b) The workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days 'average pay or any part thereof in excess of six months; and
(c) Notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette."
45. Section 25F of the Industrial Disputes Act mandates that an employer must provide one months notice or wages in lieu of notice and compensation equivalent to 15 days' average pay for every completed year of service before retrenching an employee.
46. In Devinder Singh v. Municipal Council, Sanaur (2011 (6) SCC 584), the Hon'ble Supreme Court observed in paragraphs 19 to 21 as under:
"19. Section 25 couched in negative form. It imposes a restriction on the employer's right to retrench a workman and lays down that no workman employed in any industry who has been Page:14 of 18 Sunil Kumar Vs. M/s Travel Oyster India Pvt. Ltd.LIR No.295/2024
in continuous service for not less then one year under an employer shall be retrenched until he has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired or he has been paid wages for the period of notice and he has also been paid, at the time of retrenchment, compensation equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months and notice in the prescribed manner has been served upon the appropriate Government or the authority as may be specified by the appropriate Government by notification in the Official Gazette.
20. This Court has repeatedly held that the provisions contained in Section 25F
(a) and (b) are mandatory and termination of the service of a workman, which amounts to retrenchment within the meaning of Section 2(oo) without giving one month's notice or pay in lieu thereof and retrenchment compensation is null and void/illegal/inoperative--State of Bombay v. Hospital Mazdoor Sabha AIR 1960 SC 610, Bombay Union of Journalists v. State of Bombay AIR 1964 SC 1617, State Bank of India v.
N. Sundara Money (supra), Santosh Gupta v. State Bank of Patiala (1980) 3 SCC 340, Mohan Lal v. Bharat Electronics Ltd.(1981) 3 SCC 225, L. Robert D'Souza v. Southern Railway (supra), Surendra Kumar Verma v.
Central Government Industrial
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Sunil Kumar Vs. M/s Travel Oyster India Pvt. Ltd.
LIR No.295/2024Tribunal-cum-Labour Court (1980) 4 SCC 443, Gammon India Ltd. v.
Niranjan Dass (1984) 1 SCC 509, Gurmail Singh v. State of Punjab (1991) 1 SCC 189 and Pramod Jha v.
State of Bihar (2003) 4 SCC 619.
21.In Anoop Sharma v. Executive Engineer, Public Health Division, Haryana (supra), the Court considered the effect of violation of Section 25F, referred to various precedents on the subject and held the termination of service of a workman without complying with the mandatory provisions contained in Section 25-F
(a) and (b) should ordinarily result in his reinstatement."
47. In view of above settled position of law, coming to the facts of the present case, management contended that workman/claimant failed to work honestly and sometimes he was not regular for which management had orally warned the claimant to be regular on the duty. However, the management has not placed on record any warning letter, memo or show cause notice issued to the claimant during his employment regarding his irregularity.
48. Further no domestic enquiry was conducted by the management to substantiate the allegations.
49. In the absence of any documentary proof such as warnings, complaints or inquiry report, the management's claim of unsatisfactory performance, negligence or indiscipline remains unsubstantiated. The management has also failed to prove that Page:16 of 18 Sunil Kumar Vs. M/s Travel Oyster India Pvt. Ltd.
LIR No.295/2024the claimant had absconded from duty. The evidences on record clearly shows that no notice/wages in lieu of notice and retrenchment compensation was given to the claimant prior to termination of his services by the management.
50. As discussed above, I am of the considered opinion that the management has violated the provision of Section 25F of Industrial Disputes Act and consequently, illegally terminated the services of the claimant. Accordingly, this issue is also decided against the management and in favour of claimant. RELIEF :-
51. It is a well settled law that reinstatement with full back wages is not to be granted automatically in case of illegal termination and Labour Court can mould the relief by granting lump sum compensation in lieu of reinstatement and back wages as held in (i) Municipal Council Sujanpur Vs. Surinder Kumar 2006 LLR 662; (ii) Nehru Yuva Kendra Sanghathan Vs. Union of India & Ors. 2000 IV AD (Delhi) 709; (iii) Vinod Kumar & Ors. Vs. Salvan Public School & Ors. W.P.(C) 5820 Dated 17.11.2014.
52. Accordingly, I deem it appropriate to grant compensation to the claimant instead of reinstatement with full back wages. Upon considering the length of service and last drawn wage of claimant i.e. Rs.37,147/- as per the bank statement (Mark-A) filed by the workman, a lump sum amount of Rs.8,50,000/- is awarded to claimant as compensation.
53. Amount of compensation be paid to claimant within two months from the date of award failing which management Page:17 of 18 Sunil Kumar Vs. M/s Travel Oyster India Pvt. Ltd.
LIR No.295/2024shall also pay interest @ 6% per annum on aforesaid amount from the date of award till the date of realization.
54. Reference stands answered in aforesaid terms.
55. Copy of Award be sent to Deputy Labour Commissioner, South-East District, Labour Welfare Centre, Bal Mukund Khand, Giri Nagar, Kalkaji, New Delhi for publication.
File be consigned to record room.
Announced in the open court on
Digitally
signed by
SURENDER
Dt: 22.07.2025 SURENDER
MOHIT
MOHIT
SINGH
SINGH Date:
2025.07.23
17:06:44
+0530
(Dr. Surender Mohit Singh)
District Judge,
POLC-08/RACC
New Delhi
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