Delhi District Court
Through vs M/S. Sony India Pvt. Limited on 29 October, 2014
IN THE COURT OF SH. SANJEEV KUMAR,
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER LABOUR COURT
KARKARDOOMA COURTS, DELHI.
ID No. 07/11 (OLD ID NO. 412/10)
IN THE MATTER BETWEEN:
Sh. Prakash Verma,
S/o. Lt. Sh. Attar Singh Verma,
R/o. 232, Lal Kuan Chungi No. 2,
MB Road, New Delhi : 110 044.
Through :
Delhi State General Workers Congress (Regd.),
8/425, Trilokpuri,
Delhi : 110091.
............ Workman
VERSUS
1. M/s. Sony India Pvt. Limited,
A31, Mohan Cooperative Industrial Estate,
Mathura Road, New Delhi : 110044.
2. M/s. Ess Kay Engineers,
C207, Nirman Vihar, Vikas Marg,
New Delhi : 92.
..........Management
ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 1 out of 50
Date of Institution : 06.04.2010
Date of Judgment : 29.10.2014
A W A R D
The Secretary (Labour), Government of NCT of Delhi
vide its order No. F.24(483)/Lab./SD/09/3224 dated : 31.03.2010
referred an industrial dispute of worker with the above mentioned
managements to the Labour Court with the following terms of
reference:
"Whether the services of Sh. Prakash
Verma S/o. Late Sh. Attar Singh
Verma have been terminated illegally
and/or unjustifiably by the
management, if yes, to what relief he
is entitled and what directions are
necessary in this respect?"
2 Brief facts of the case as mentioned in statement of
claim are that the workman Prakash Verma had been working
w.e.f. 4.1.1995 till 9.11.09 as A/C Operator cum Technician in the
maintenance department of the establishment of Sony India
Private Limited i.e. Management no. 1 (herein after called as M1).
On 1.7.2007 M1 illegally, arbitrarily unjustifiably and with
ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 2 out of 50
ulterior motive to deprive him of security of job, company's pay
scale and other benefits under the beneficial legislations, coerced
him to sign on the appointment letter of one of its agencies namely
M/s. Ess Kay Engineers i.e. Management no. 2 (herein after
referred to as the contractor/M2). Even during the said period he
was shown in the said contractor company he always work under
the supervision and economic control of the management no.1
and the contractor was only name lander with no control of any
kind over his work. Conversion of the status of the workman from
direct employee to contractual employee on papers by the M1
always been only a ruse camouflage and a direct employer
employee relationship between the management and the workman
continued to exists. He further stated that at the time of showing
his name with M2/contractor, M1 had neither terminated his
service nor it had complied the provisions of section 25 (f) of
Industrial Dispute Act (hereinafter called as ID Act). His job was
in the nature of permanent and perennial. He further stated that he
approached to the Union for the redressal and became member of
the union which has raised various demands on his behalf but no
purpose served, therefore, he raised an industrial dispute before
ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 3 out of 50
the Deputy Labour Commissioner by filing statement of claim for
the regularisation of his service and for regular pay scale etc. on
22.10.09. His cause was duly espoused by the above said union
also. Notice was issued to both the managements by the Labour
Commissioner, therefore, management started pressurizing him to
withdraw the case or face the termination. The attendance/ in out
register kept at the main gate of the office premises of M1 was
replaced with new register. On 03.11.09 he was made to signed on
a voucher saying that it relates to the payment of Rs. 9500/ given
him towards bonus on 16.10.09. Same day in the evening he was
pressurized to withdraw the industrial dispute but he declined to
withdraw the same therefore management directed him not to
come for duty on the next day. However, on 4.11.09 he was called
by M1 to join duty but again he was restrained from entering in
the premises of M1. On 5.11.09 an attempt was made to snatch his
entry card given by M1. He was made to sit idle by the M1 in the
DG room w.e.f. 5.11.09 to 8.11.09 and finally w.e.f. 9.11.09 he was
illegally restrained from making any entry in and out register and
was made to go back. He further stated that his termination is
gross violation of Industrial Dispute Act and principles of natural
ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 4 out of 50
justice and is violation of section 33 and 33 A of the ID Act. He
further stated that on 12.11.09 he was served with the legal notice
dt 9.11.09 whereby his service were terminated by M1 through
M2. He further stated that said termination has been done only to
frustrate the conciliation proceedings which were pending before
the conciliation officer to harass him or to defeat his moral. He
further stated that dispute was referred to the present court. He
claimed relief that he be declared the employee of M1 and his
engagement through M2 as a camouflage, his termination order is
set aside and he be reinstate with full back wages and with
continuation of service benefits.
4 Notice of reference was issued to both the
managements. The M1 has filed its written statement in which
preliminary objection was taken that claimant was never the
employee of the M1 and there exists no employeremployee
relationship between the parties. Further stated that he is the
employee of M2 and the said contractor deputed alongwith other
employees at the premises of M1 for rendering the requisite
service. Therefore, when he is not an employee no question of his
termination by M1 arise.
ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 5 out of 50
On merits all the contents of the statement of claim
were denied as incorrect. It is denied that claimant ever worked
under the management. It is further stated that as per information
supplied by the M2 during the period from 200709 the claimant
was working under the direct control and supervision of the M2.
It is further stated that earlier the management was taking the
service of M2 on need bases and for that M2 was being paid as
per the actual bills. However, in the year 2007 M2 started
providing its service some other area also. The M1 negotiated with
M2 to provide the services on consolidated fees basis and signed
the agreement in this regard. In the light of the aforesaid premise
the allegations of the workman that management act was arbitrary,
amounting to unfair labour practice, ruse or camouflage is baseless
and misleading. Further it is denied that claimant had not worked
under direct or indirect control or supervision of M1. It is denied
that management pressurize the workman to withdraw the dispute
filed by him before the Labour commissioner. Further it is denied
that workman was made to signed on any voucher on 3.11.09 or the
management called the workman to withdraw the dispute. It is
stated that claimant was always on the roll of M2 and was paid
ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 6 out of 50
wages by M2. It is denied that M1 had terminated the services of
the workman and thus violated the provision of 33 of ID Act thus
it is clear that the statement of claim filed by the workman be
dismissed.
5 The M2 in the written statement has taken
preliminary objection that claimant is not a workman as per
definition of workman given in the Industrial dispute Act, 1947. It
is further stated that claimant had been working with the
management under the auspices of an employment contract dt.
1.7.07 duly signed by him and his services have been terminated
w.e.f. 9.11.09 for violation of the terms of the said employment
contract. It is further stated that M2 is an independent contractor
duly licensed and registered with statutory provisions of service
tax, EPF etc.. It is further stated that prior to filing of the claim,
claimant never reported for any grievance with respect to its
employment with M2. It is further stated that claimant was
employed on the managerial post with M2 and has been deployed
with the M1 and M1 was not responsible for answering to
claimant as there is no employer-employee relationship. It is
further stated by M2 appropriate reply was filed to the notice
ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 7 out of 50
received from Dy. Labour Commissioner. It is denied that M2 has
pressurize workman for withdrawing the complaint. Further, it is
stated that claimant was drawing statutory benefits such as PF etc..
as per law besides regular wages. Further, it is stated that work
performed by the claimant prior to the termination of services by
the answering management was not of permanent nature and
would be guided by exigencies of work assigned to the answering
respondent by any of their client located across entire NCR region
and not only the first respondent.
6 The workman filed the rejoinder to the written statements of both managements in which he reiterated the contents of statement of claim as true and correct and denied the contents of the written statements as false and incorrect. 7 From the pleadings of the parties following issues were framed :
1. Whether there is any individual dispute in absence of a valid espousal is not maintainable in the eye of law?
2. Whether the workman comes under the definition of ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 8 out of 50 workman as define U/s. 25 (s) of Industrial Dispute Act? OPM
3. Whether the workman is entitled to the relief claimed?
OPW 8 However vide order dt.30.09.2014 additional issue "Whether management no.1 and claimant has any "employer employee relationship" also framed.
9 In order proved his case workman has examined himself as WW1 and led his evidence through affidavit EXWW1/A and also relied upon documents WW1/1 to WW1/5. And also tendered additional affidavit EXWW1/A1 in evidence on 20.11.2013 and relied upon additional documents EXWW1/16 to WW1/32.
10 On the other hand M1 examined Sh. Urfee Haider as MW1 who led evidence by affidavit Ex. MW1/A &MW1/B and relied upon documents Ex. MW1/1 to MW1/10 and also relied upon documents marked MW1/1 to mark MW1/15.
11 M2 has examined its proprietor Sh. Sushil Kaushal MW2/1 and he relied upon documents EXMW2/1A.
ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 9 out of 50 12 Argument were heard from Smt. Asha Jain AR for workman and Sh. Vineet Sinha AR for management no.1 and Sh. Rakesh Taneja AR for management no.2.
13 I have considered the arguments and gone through the record my issue wise finding are as under: ISSUE NO. 1 "Whether there is any individual dispute in absence of a valid espousal is not maintainable in the eye of law?
OPM 14 As per complaint Ex. WW1/15 file by workman to the Deputy Labour Commissioner same was filed through Delhi State General workers Congress union against his illegal termination. As per section 10 (4A) of the ID Act (Delhi State amendment) a dispute falling with in scope of section 2A of ID act the individual workman can file a complaint against his illegal dismissal or termination. Relevant section 10(4A) Delhi state amendment is reproduce as below:
(4A) Notwithstanding anything contained in section 9c and in this ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 10 out of 50 section in the case of a dispute falling within the scope of section 2A the individual workman concerned may within twelve months from the date of communication to him of the order of discharge dismissal retrenchment or termination or the date of commencement of the Industrial Disputes (Delhi Amendment) Act, 2003 whichever is later apply in the prescribed manner to the labour court or Tribunal as the case may be shall dispose of such application in the same manner as a dispute referred under sub section (1)."Delhi Act 9 of 2003, S.2 (w.e.f. 2282003).
Section 2A of the ID Act is reproduced as below.
(2A Dismissal, etc., of an individual workman to be deemed to be an industrial dispute. Where any employer discharge , dismisses , retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of such discharge , dismissal, retrenchment or termination shall be deemed to be an ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 11 out of 50 industrial dispute notwithstanding that no other workman nor any union of workman is a party to the dispute.
;
15 Hence, in case of dismissal, termination of a workman no collective espousal is required and individual workman dispute can be espoused by union or even workman can raised dispute without espousal from union therefore claim file by workman is not barred. Issue no. 1 is decided against the management. ISSUE NO. 2
Whether the workman comes under the definiton of workman as define U/s. 2 (s) of Industrial Dispute Act?
OPM"
16 It is stated by Management no.2 in WS that workman is not covered under the definition of 2(s)of the Industrial Dispute Act. The definition of workman as define is section 2(s) is reproduced as under :
"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 regard, ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 12 out of 50 whether the terms of employment be express or implied, and for the purposes of any proceedings 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, 01950 (45 of 1950) or the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed mainly in a managerial or administrative capacity;
or
(iii) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees 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.
"...........Definition would show that workman means a person employed in an industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward. A school of though that somebody who does not fall under the exceptions enumerated under Section 2(s) of the Act shall be a workman was being followed. In H. R. Adyanthaya and others v. Sandoz (1) Limited and others, (1994) 5 SCC 737, Supreme Court analysed all the ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 13 out of 50 previous judgments and held that it was not sufficient for a person to be a workman that he does not fall within the exceptions given in Section 2 (s). In order to be a workman the specific nature of work as given under Section 2 (s) the Act must be shown to be the one being done by the person. There may be employees who do not do any supervisory or administrative work but may be out of the scope of the definition. Supreme Court reiterated the approach it had taken in May & Baker India Co. Ltd. v. Their Workmen, AIR 1964 SC 472 and Burmah Sheel Oil Storage & Distributing Co. of Association and others, AIR 1971 SC 922. While summarizing the legal position, Supreme Court held as under: "We thus have three three Judge Bench decisions which have taken the view that a person to be qualified to be a workman must be doing the work which falls in any of the four categories, viz., manual, clerical supervisory or technical and two two Judge Bench decisions which have by referring to one or the other of the said three decisions have reiterated the said law. As against this, we have three threeJudge Bench decisions which have without referring to the decisions in May & Baker, WIMCO and Burmah Shell cases have been taken the other view which was expressly negatived, viz., if a person does not fall within the four exceptions to the said definition he is a workman within the meaning of the ID Act. These decisions are also ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 14 out of 50 based on the facts found in those cases. They have, therefore, to be confined to those facts. Hence the position in law as it obtains today is that a person to be a workman under the ID Act must be employed to do the work of any of the categories, viz., manual, unskilled, skilled, technical, operational, clerical or supervisory. It is not enough that he is not covered by either of the four exceptions to the definition. We reiterate the said interpretation......"
17 As per testimony of the workman led through affidavit EXWW1/A he was working as AC cum operator cum technician. He has categorically deposed that he was not working as supervisor or doing managerial duties. In his cross examination no suggestion has been given to him by any of the managements that workman was performing any supervisory or administrative duties. Further as per own admission of M2 in para no.1 of the reply/written statement on merit it has been stated that its employees are field workers mostly employed to attend complaints of AC installations at the client premises and claimants was also employed to do the same job. Further MW2 has himself admitted in the cross examination that he has provided PF facilities to claimant which are generally provided to workman. The workman ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 15 out of 50 cannot be taken out from the ambit of workman if he is appointed under a employment contract though no such contract has been produced by M2 in evidence. The onus was on the managements to proved that claimants do not come in the definition of workman as define u/s 2(s) of ID Act but from the evidence led by managements nothing has came out which take the workman out of ambit of definition of workman as define in section 2(s) of ID Act. Hence I held that managements have failed to proved that claimant is not a workman as per section 2(s) of the Industrial Dispute Act. Hence, issue no. 2 is decided against the Managements.
ADDITIONAL ISSUE Whether management no.1 and claimant has any employeremployee relationship 18 The Ld. AR for the workman has contended that workman was working with the M1 since 1995 as AC operator cum technician and his appointment was illegally shown with the M2 in the year 2007. The management no. 2 is bogus entity and created only for the purpose of depriving the workman from the ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 16 out of 50 legal facilities. In support of his contention he has relied upon the testimony of the workman.
19 The workman in his testimony led through affidavit Ex.WW1/A has almost deposed the same facts as stated in his statement of claim as discussed above. He has also relied upon documents Ex.WW1/1 to 1/15. The workman has also led evidence by way of supplementary affidavit Ex. WW1/A1 and relied upon documents Ex. WW1/16 to 1/32.
In his cross examination he has stated that he joined the management on 04.01.95 as AC Technician cum Operator. He had not done any diploma or any other course relating to AC technician cum operator. He was provided 23 months training from blue star regarding AC and he had filed the certificate of said training. This training programme was regular programme for 23 hours daily. He had admitted that he was not issued any appointment letter by the M1. He stated that prior to working with the M1. He was working with M/s. Temtek Engineers who is dealer in Carrier Aircon and he was working with them from 1992. He admitted the suggestion that management no.2 had issued appointment letter dated 01.07.2007 but he vol. deposed that his ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 17 out of 50 signature was forcibly taken on that letter. He denied the suggestion that there is no relationship of employeremployee between him and M1 and vol. deposed management no.1 was principle employer. He denied the suggestion that he was the employee of M2 and M2 deputed him to other places for work. He denied the suggestion that his name was not entered in the muster roll as he was not the permanent employee of the M1 vol. deposed he used to sign personally in the permanent attendance register. He denied the suggestion that he was paid wages by M2 and vol. deposed that he was paid wages in cash by M1 and he got his signatures on wages register. He stated that he is not aware that his PF account is being maintained by M2.
In his cross examination by M2 workman has stated that he used to get Rs. 3500/per month as salary in the starting. There was no appointment letter for employment which specified his terms of employment with M1. He was allotted an employee number which he do not recollect. He admitted that his name was not reflected in document Ex. MW1/18. He stated that his name is written in the page which is following Ex. WW1/18. He stated that he never resigned from the M1 and M1 prevented him from ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 18 out of 50 working further on 11/12.9.09. He stated that his name was written in the page which is followed Ex. WW1/18. He admitted that this document Ex. WW1/18 does not indicate the name of Sony India (P) Ltd. i.e. M1. He vol. stated that this document is part of WW1/18. He stated that he was appointed by Sanjay in the M1 in the year 1995 and he was drawing salary of Rs. 10,000/ pm in cash. He admitted that there is no document which reflect that he was drawing salary on monthly basis from M1. 22 On the other hand M1 in order to deny that workman is not their employee M1 examined Sh. Urfi Haider its Sr. Executive Legal and Taxation as MW1. He led his evidence through affidavit Ex. MW1/A. In his evidence he has deposed that workman was never employed with the M1 and he was employee of service provider/ independent contractor/M2 and said contractor has deputed him to work alongwith other employees of the contractor at the premises of M1 for the purpose of requisite services. He deposed that claimant has not worked with management no.1 w.e.f. From 04.01.1995 to 09.11.2009 and there is no question of workman working under direct control and supervision of the management no.1. He further deposed as per ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 19 out of 50 information provided by M2 from 2007 to 2009 claimant was employee of M2. He further deposed that M2 was engaged on need bases and they were paid as per actual bills however, M2 started providing service in some other place. The M1 negotiated with the M2 to provide the services on consolidated fee basis and sign the agreement in this regard. The workman was never in the direct control of M1 hence no question arise for termination or compliance of section 25 F of the ID Act.
In his cross examination he admitted that he has no role to play with regard to work force in M1 including the claimant. He denied that HR or Administration department of M1 used to supervise the work of claimant. He has no knowledge whether M1 has been maintaining any muster roll of its employee. He stated that M1 is registered with contract Labour Regulation & Abolition Act but he do not know since when it is registered. He stated that he has no knowledge that M1 used to deposit the subscription of PF to the PF department for the claimant or not. He cannot tell whether salary of the claimant was being paid by cash or cheque. They have no record pertaining to the employment of the claimant including pertaining to the wages. He stated that ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 20 out of 50 he cannot tell the date since when the contract was given to M2. He admitted that WW1/2 to 1/7 are delivery challan pertaining to M1 and similarly document Ex. WW1/8 to 1/10 are documents pertaining to M1. He is denying the documents dt. 3.4.98and 12.5.00 as they do not have the company stamp or the name of the authorised signatory of company is not mentioned. He stated that he is not in the position to admit or deny the authencity of email letter dt. 12.8.12, 2.12.04, 2.6.05, 24.2.05, 12.7.05, 17.3.06, 2.2.06. He stated delivery challan dated 14.8.02, 19.8.02, 20.5.05, 4.7.05, 2.8.05, 6.9.05, 15.09.05, 19.11.05, 28.4.06 Ex. MW1/W3 to W11 belong to M1. He has no knowledge whether document Ex. WW1/26 to WW1/32 belongs to M1. He admitted that temporary entry Card mark as MW1/W12 belongs to M1. He cannot admit or deny whether Sh. Akhil Kr. & Others as mentioned on Ex. MW1/W2 are employees of M1. He cannot admit or deny whether M1 had given any notice of commencement /completion of contract work as provided in form XVI - B and as required under rule 81 (3) of Contract Labour (Regulation & Abolition) Rules, 1971. He further stated that he cannot admit or deny whether M1 had sent any return in form XXIV as provided under 82 of the ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 21 out of 50 above Rules. He has no knowledge whether M1 is maintaining any register/documents certifying that wages are being paid to the contract workers. The only document on the basis of which he said that claimant is not employee of M1 is the service contract between the claimant and M2. He denied that same signatures of claimant on the said document was obtained under force & coercion. He stated that claimant was directly appointed by M1 or that claimant has always worked as direct employee of M1. He further denied that M2 was only agency of M1 or that contract if any between M1 and M2 were forged, manipulated and sham, created for the purpose of camouflaging the true relationship of employer - employee between claimant and M1. He further denied that M1 is in collusion with M2 and has illegally terminated the services of claimant.
24 The management no. 2 has examined Sunil Kaushal a its proprietor as MW2/1. In his evidence led by way of affidavit Ex. MW2/1A he deposed that he was proprietor of M2. He stated that he relied upon contents of his written statement.
In his cross examination he stated that workman was his employee since Feb. 2006. The workman was employed with ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 22 out of 50 M2 in Feb. 2006 but the employment contract was given to him on 1.7.07 after seeing his performance. He do not remember the date month and year when he has deposited the PF of the workman. The PF account No. DL35079/4 belongs to the workman. He denied the suggestion that said account was never opened by him or same does not pertain to the workman. He admitted that before appointing workman he had not advertised for vacancy nor he has given any representation for his appointment with M2. He denied the suggestion that workman was forced to sign the appointment letter in connivance with the M1. He further stated that he had terminated the services of the workman as he has filed the case against the management no. 1 and 2 against the term of the contract of appointment letter. Management no. 1 had issued a show cause notice to M2 that workman has filed the case against them the copy of the said letter is with M2. He admitted that Bhudev Sharma is regular employee of M1. He denied that the salary of the workman was paid by M1. He stated that he do not know whether M1 was maintaining a register for attendance of permanent employees. He further stated that he do not know whether M1 was marking the attendance of the claimant in the ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 23 out of 50 said register. He stated that he had received a notice from Assistant Labour Commissioner South in 2009 prior to the issuance of termination letter dt. 611.09 to the workman to which workman had refused. He admitted that no enquiry was initiated against the workman. He has filed a case before Labour court. He denied the suggestion that the name of the workman did not exists in the muster roll of M2. He further denied that contract between M1 and M2 are sham and bogus or that they have been created to camouflage true employer employee relationship between M1 and the claimant.
25 It is argued by Ld ARW that from the testimony of the workman and documents proved by workman it is proved that workman was working with the M1 since 1995 and in the year 2007 he was forced to sign on appointment letter issued by M2 to deprive him legal facilities. Hence, it is proved that workman is the employee of the M1. She further argued that since workman has filed the industrial dispute before labour department and the workman was terminated during the pendency of the said case. Therefore, his termination was in violation of section 33(2) (b) of the ID Act as neither one month notice pay was paid to the ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 24 out of 50 workman nor management has sought approval under section 33(2) (b) of the ID Act. She further argued that since workman is able to prove documents from the year 1995 which include delivery challan that he was the employee of the M1 and not of M2 and his record has been shown illegally with the M2 and contract between the M1 and M2 to provide contract labour is false and fabricated documents hence, same cannot be relied upon. She further argued that in case this court come to the conclusion that workman is the employee of M2 in that event the relief to the workman be granted against the M2 as he was terminated illegally. 26 On the other hand, Ld. AR of the M1 has argued that since workman has admitted that appointment letter was issued to him by M2 in year 2007. Therefore onus was on workman to proved that his signature was taken forcibly by the M2 which he failed to proved, therefore, it is proved that there was no employer employee relationship between M1 and workman as on the day of termination he was employee of M2. He further argued that workman was deploy to work with M1 by M2 as there was a contract to provide labour between M1 and M2. Hence, workman was working with M1 only as a contract labour. Hence, no ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 25 out of 50 question of termination of service by M1 arise and submitted that service of the workman was terminated by M2. Therefore, in these circumstances, claim of the workman is liable to be dismissed.
27 On the other hand Ld. AR for management no. 2 has argued that claimant was employee of management no.2 and was appointed in 2007 and was deployed to work with M2 with whom M2 has contract to supply labour. He argued that claimant has violated term of employment by filing case against M1 hence his services was terminated. He further argued that since workman has clearly admitted in his cross examination that no relief has been sought by M1 therefore, no claim lie against M2 hence claim is liable to be dismissed.
28 I have considered the arguments and gone through the record. I am agree with the contention of Ld. AR for M1 that onus is upon the workman to prove that he is the employee of the management as held in In N.C. John Vs. Secretary Thodupuzha Taluk Shop and Commercial Establishment Workers Union and others 1973 Lab, IC 398, the Kerala High Court relied upon in Nilgiri case(supra) it is held that :
ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 26 out of 50 "the burden of proof being on the workmen to establish the employeremployee relationship and adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employeremployee relationship."
29 I am also agree with the contention of Ld. AR for Management no.1 that sole testimony of workman is not sufficient to prove his employment but he also required to corroborate it with documentary evidence and other independent witness. As stated above the workman in his testimony has deposed that he was the employee of M1 and was working with M1 since 4.1.95 till 9.11.09 as AC Operator cum Technician. But in his statement of claim as well as in his testimony he has not deposed that on what salary he was appointed with M1, though in the crossexamination he has stated that he was initially appointed on the salary of Rs. 3500/ per month and his last drawn salary was Rs. 10000/ per month. But he admitted that he has no proof that M1 is giving salary to him. He has not produced any appointment letter. In his cross examination he has stated that he was not given appointment letter by the management. But has failed to explain why he has not demanded appointment letter despite working so long with M1. He has stated that his PF was deducted by Management but ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 27 out of 50 management has not given PF deposit slip or ESI benefit. Again he failed to explain if M1 has not given PF deposit slip or ESI facilities why before his termination he had not made any complaint regard to Labour department or any other authority. Further he stated that despite various oral representation/demands made to M1 to regularize his service against existing post needful was not done by management but he has failed to explain why from 4.1.95 till 9.11.09 he had not made any complaint against M1 for not regularizing him. This led to presumption that his allegations are after thought and has been only made to strengthen the case that he is employee of the M1 probably on the advice of union. He stated that he was marking attendance in attendance register but no such attendance register has been produced by him nor any application has been made to summon the attendance register of muster role. Hence the workman has failed to produced any of the documentary evidence such as appointment letter, muster roll, attendance register,leave record, wages slip or PF and ESI which are cogent proof of employment, as mentioned in Automobile Association of Upper India vs P.O. Labour Court II and Anothers 2006 LLR551. In this case our own High Court held ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 28 out of 50 as under: "14. Engagement and appointment in service can be established directly by the existence and production of an appointment letter, a written agreement or by circumstantial evidence of incidental and ancillary records which would be in the nature of attendance register, salary registers, leave record, deposit of provident fund contribution and employees state insurance contributions etc. 29 As far as documents relied upon by workman is concerned, he has proved on record documents Ex. WW1/1 to 1/32. WW1/1 is notice of the M2 given to the workman intimating him about his termination which do not proved that he is employee of M1. WW1/ 2 is carbon copy of printed delivery challan of M1 dt. 28.7.00 1/ 3 is original delivery challan dt. 6.10.00 1/ 4 is delivery challan dt. 6.8.00 1/5 is delivery challan dt. 19.8.12 1/6 is delivery challan dt. 11.7.00 which bears name of workman which proved these articles has been delivered to him, 1/8 and 9 are gate passes respectively allowing him to take the goods out of management premises. WW1/23 are 14 delivery challans of various dates from 1998 to 2006 ( original, some are carbon copy and some are photocopies) which are exhibited collectively regarding handing over of goods to Parkash. Since no suggestion ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 29 out of 50 has been given to workman that these documents are forged or fabricated hence these documents authenticity is not disputed therefore these documents proved that workman has received the goods mentioned in these delivery challan or gate pass. 30 WW1/26 are 16 service report(exhibited collectively) made by OVN Trading Engineers Pvt. Ltd. regarding attending various complaints of DG set from dt. 27.9.97 to 23.09.2008, WW1/27 is also service reports made by Voltas Ltd WW1/28 is also service report, 1/29 service request which shows goods were brought to them by workman for repairs on behalf of Sony India , 1/30 is gate pass, 1/31 (13 receipts)issued by Ureka Forbes Ltd. regarding purchasing of purifier, 1/32 are the service reports, 1/33 dealer Aircon India P Ltd., service report of the repairing work. No suggestion has been given to witness that these are fake or fabricated service report. Hence all these delivery challan and service report proved by the workman undoubtedly established that workman was working for M1 from year 1995 but do not proved that he was employee of M1. The other documents proved by workman also corroborate claimant testimony that he was working for management no.1 much prior to year 2001. ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 30 out of 50 Management has failed to explain if workman was deployed by M2 to work at M1 in year 2007 than why workman was given goods for repairs or to take to various company. There is nothing in the testimony of the MW1 Urfee Haider to discard the testimony and documents proved by claimant that he was working for management no.1 since 1995 . But from the documents proved by workman it is not proved on what designation he was working with management no1 and what was his salary or designation or that he has worked 240 days in a year prior to his termination. The document EXWW1/M2/2 proved that M/s MEFIYER Air Conditioner Pvt. Ltd. was established in the name of workman and his wife as Directors on 18.11.2005 and office address of said firm is his residential address. Though workman in his cross examination has stated that he do not know about the said company. But he has failed to explain how the said company got register in his and his wife name and from his residential address. He has given no complaint that somebody else has registered company by his name and address. Therefore I find it hard to believe that he has not opened the said company which means that in the year 2005 workman was running his owned company ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 31 out of 50 dealing with AC. Hence while running his own company in year 2005 he cannot be employee of M1. Therefore from the documents relied upon by workman he is not able to proved that he was employee of M1.
31 Even otherwise I am agree with the contention of Ld. ARM that since workman had not denied that he signed the appointment letter issued by M2 on 01.07.2007 hence workman was in the employment of M2 since 01.07.2007 hence he cannot be employee of M1 atleast from 01.07.2007 and therefore he was not the employee of M1 on the day when he was terminated. Claimant in his cross examination has stated that on 01.07.2007 he has signed on the appointment letter issued by M2 but has voluntarily stated that he was coerced to sign on the appointment letter by M2 but he has failed to explained if he was forced to signed on it then why he has not made complaint to any authority in this regard till 22.10.2009 when he filed the complaint EXWW1/11 before Deputy Labour Commissioner demanding regularization of service with M1 hence first time he made complaint after more than 2 year of signing the appointment letter of M2 hence claimant contention cannot be accepted that he was forced to sign on ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 32 out of 50 appointment letter issued by M2. He knowingly worked as employee of M2 without making any complaint which proved workman voluntarily decided to join service of M2 but later on taken the stand that he was forced to sign on appointment letter of M1 probably due to advice given by trade union office bearer who filed the complaint ExWW1/11 on behalf of workman. In my view the day workman signed on the appointment letter of M2 he joined service of M2 he ceased to be employee of M1 even if it is presumed that he was the employee of M1 as no person can be employee of two management. Therefore on the day of his termination i.e. on 09.11.2009 he was not the employee of M1. 32 The another contention of Ld. ARW that contract between M1 and M2 is sham and camouflage hence workman should be treated as employee of principal employer i.e. M1 is also not tenable. Undoubtedly if Court finds contract between principal employer and contract is sham and camouflage than it can declare a workman as employee of principal employer instead of contractor. In International Airport Authority vs International Air Cargo Workers union and another 2009 (13) SCC374 it is held that ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 33 out of 50 "The industrial adjudicator can grant the relief sought if it finds that contract between principal employer and the contractor is sham, nominal and merely a camouflage to deny employment benefits to the employer and that there is in fact a direct employment, by applying tests like: who pays the salary; who has the power to remove/dismiss from service or initiate disciplinary action; who can tell the employee the way in which the work should be done, in short who has direction and control over the employee. But where there is no notification under section 10 of the CLRA Act and where it is not proved in the industrial adjudication that the contract was sham/nominal and camouflage, then the question of directing the principal employer to absorb or regularize the services of the contract labour does not arise. 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 contractor, if the right to regulate employment is with the contractor, and the ultimate supervision and control lies with the contractor. 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 ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 34 out of 50 and control of the principal employer but that is secondary control. The primary control is with the contractor."
33 Now reverting back to the case The workman in his affidavit EXWW1/A has deposed that he was never deputed by the contractor at the premises of the management for the purpose for rendering the requisite service during the period he was shown by the management in the employment of M1. He was always made to work under the direct control and supervision of Sony India P Ltd Sanjay JR Manager Anil Kumar Assistant Manager, Punit Rampal and Sumit Arora supervise his work even economic control over him and his working was that of Sony India. but he has not examined any witness in support of his testimony that his work was being supervised by the aforesaid persons mentioned in his affidavit. Further claimant has deposed M2 was always been only name lander and has no control of any kind what so over his employment and other terms and conditions. The conversion of his status from the direct employee to contractual employee was on papers by Sony and always been only a rouse camouflage and direct employer employee relationship between him and the M1 continued to exists. But he has failed to explained why he did not ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 35 out of 50 filed any complaint when he was converted from direct employee to contractor employee.
34 MW1 Urfee Haider has deposed through his affidavit EXMW1/B that M1 has entered into service agreement with M2. By virtue of said agreements M2 is to render various maintenance service such as AC maintenance and repairs, plumbing work, electrical work and officer premises maintenance etc. In order to perform the work M2 deputed its employee at the office premises of M1. The workman was also deputed by M2. He has proved various agreements from year 1995 to till 08.04.2013. which were EXMW1/1 to MW1/10 and mark M1 to M15. All these documents proved that there was contract between M1 and M2 to provide various maintenance service. MW2 proprietor of M2 has deposed that he was depositing PF of workman and workman PF account no. was DL/35079/4. Though workman has denied said account as his PF account but no application has been filed by him to summon the record to rebut the contention that PF account does not pertain to him. Similarly he has filed no application to summon the record that he was being paid salary by M1. Thus in these circumstance, I do not find oral testimony of workman ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 36 out of 50 reliable that he was working under the control and supervision of the officer as mentioned above in his affidavit or that he was getting salary from the M1. The onus was upon the workman to proved that contract between M1 and M2 is sham and camouflage but in my view he has failed to discharge the said onus. 35 I also do no find force in the contention of Ld. ARW that since management no.1 is not having registration to engage labour on contract as required under section 7 of Contract Labour (Abolition and Regulation ) Act hereinafter called as CLRA and Management no.2 does not have license to provide labour on contract as required under section 12 of the above said Act hence contract between management no.1 and 2 is sham and camouflage. The CLRA no where provide that if principal employer is not registered under the Act or contractor has not taken license there contract to supply labour would be void. The section 24 of CLRA only provide that a person who contravenes the provision of the Act would be liable for imprisonment upto three month or with fine. Hence in these circumstance I held that workman has failed to proved that contract between M1 and M2 to provide service for various maintenance work was sham and camouflage. ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 37 out of 50 36 In view of above discussion I held that claimant has failed to proved that he was the employee of M1 but he was employee of M2 on the day of his termination and had not worked for 240 days prior to his termination with management no.1. Additional Issue is decided accordingly against the workman. ISSUE NO. 3
Whether the workman is entitled to the relief claimed?
37 The workman has sought following relief in his statement of claim :
1. Declare that the claimant is the employee of Sony India P Ltd. And his engagement through the agency of R 2 is only a camouflage;
2. Set aside the termination order dated 9.11.09 served upon the claimant on 12.11.09 by the R2 as being illegal;
3. Direct the management of Sony India P Ltd to reinstate the claimant workman back in service with all consequential benefits including back wages w.e.f. The date of termination of his ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 38 out of 50 services, increment and continuity of services; and
4. direct the management No. 1 to regularize the service of claimant w.e.f. His initial date of joining i.e. The claimant be given the regular scale of the company as given to the other regular staff of the management performing similar work w.e.f.
The date of his initial joining; and
5. without prejudice to the above direct the R2 to reinstate the claimant back in service with all consequential benefits including back wages w.e.f. The date of termination of his services, increment and continuity of services and
6. Direct the respondents to pay the earned wages of the claimant for the month of October, 2009 till the date of illegal termination of his services w.e.f. 9.11.09; and
7. Pass such other and further orders as this court may deem fit and proper in the interest of justice including initiation of prosecution as per law. ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 39 out of 50 38 In view of my finding of additional issue I held that workman is not entitle to relief no.1,3,4 as he was not employee of M1 at the time of his termination. As far as relief no.2 is concerned onus is upon the workman to proved he was terminated illegally by M2. The workman has stated in his statement of claim that Sony India was exploiting him therefore, he made oral representation/demand to the management Sony India i.e. M1 for regularising his service against the existing post but need ful was not done by the management therefore, he has approached to the workman union named Delhi State General Worker congress and Union made various demands on his behalf but nothing fruit full came out thus he raised the dispute before the Dy. Labour commissioner for regularisation of service and regular pay scale on 22.10.09. The notice was issued against both the managements and during the pendency of said dispute he was served a letter dt. 9.11.09 on 12.11.09 whereby his service was terminated by M2 and since he was terminated during the pendency of industrial dispute hence, management had violated the section 33 and 33 A of Industrial Dispute Act as no approval has been taken for his termination from the Conciliation Officer. Same facts he has ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 40 out of 50 reiterated in his evidence led by way of affidavit Ex WW1/A. No suggestion has been given by the management that workman has not filed the complaint before conciliation officer for regularisation of his service. He proved the said complaint as EX.WW1/11. Further from the termination letter EXWW1/1 sent to workman by M1 also it is proved that workman was terminated because workman has filed the complaint before Labour deparment. Even MW2 in his reply of WS to the statement of claim has admitted in para 1 in reply on merit that workman service were terminated on 9.11.09 for violation of terms of contract. But no such employment contract has been placed on record by MW2 which the workman has allegedly violated. He has admitted in the cross examination that workman was terminated only because he has filed case against the M1 and M2. In my view merely filing a case by the workman against the management is not a such misconduct that it warranted termination of a workman. Admittedly no show cause notice or domestic enquiry was conducted against the workman and thus he was not given opportunity to explain his conduct even if same was misconduct. Hence in my view without any domestic enquiry or ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 41 out of 50 show cause notice the termination of workman was illegal. Further, I am agree with the contention of Ld. ARW that M2 has violated the provision of 33 (2) (b) of the ID Act as workman was terminated during pendency of Industrial dispute raised by him vide complaint dt. 22.10.2009 EXWW1/11 as no approval was sought by M2 as required u/s 33(2)(b) of ID Act regarding his action of termination of workman. The Section 33(2) (b) which is reproduced as under :
33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings. (1) During the pendency of any conciliation proceedings before a concilliation officer or a Board or of any proceedings before an arbitrator or a Labour Court or Tribunal or nation Tribunal in respect of an industrial dispute no employer shall,
(a) In regard to any matter concerned with the dispute,alter, to the prejudice of the workman concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding,or
(b) For any misconduct connected with the dispute, discharge or punish, whether any dismisal or otherwise, any workman concerned in such dispute (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 42 out of 50 workman concerned in such dispute or, where there are no such standing order, in accordance with the terms of the contract, whether express or implied, between him and the workman
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
39 What could be effect of non compliance of provision of section 33(2)(b) has been discussed in case Jaipur Zila Sahkari Bhoomi Vikas Bank Ltd. Vs Shri Ram Gopal Sharma AIR2002SC643. In this case Supreme Court has held that non approval of order of dismissal or failure to make an application seeking approval than order of dismissal become inoperative. It is held in para 13 that :
"The proviso to Section 33(2)(b), as can be seen from its very unambiguous and clear language, is mandatory. This apart, from the object of Section 33 and in the context of the proviso to Section 33(2)(b), it is obvious that the conditions contained in the said proviso are to be essentially complied with. Further ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 43 out of 50 any employer who contravenes the provisions of Section 33 invites a punishment under S.31(1) with imprisonment for a term which may extend to six months or with fine which may extend to Rs.1000/ or with both. This penal provision is again a pointer of the mandatory nature of the proviso to comply with the conditions stated therein. To put it in other way, the said conditions being mandatory, are to be satisfied if an order of discharge or dismissal passed under Section 33(2)(b) is to be operative. If an employer desires to take benefit of the said provision for passing an order of discharge or dismissal of an employee, he has also to take the burden of discharging the statutory obligation placed on him in the said proviso. Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative or void, defeats the very purpose of the proviso and it becomes meaningless. It is wellsettled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous. The proviso cannot be diluted or disobeyed by an employer. He cannot disobey the mandatory provision and then say that the order of discharge or dismissal made in contravention of Section 33(2)(b) is not void or inoperative. He cannot be permitted to take advantage of his own wrong. The interpretation of statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. The proviso to Section 33(2)(b) affords protection to a workman to safeguard his interest and it is a shield against victimization and unfair labour practice by the employer during the pendency of industrial dispute when the relationship between them are already strained. An employer cannot be permitted to use the provision of Section 33(2)(b) to ease out a workman without complying with the conditions contained in the said proviso for any alleged misconduct said to be unconnected with the already ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 44 out of 50 pending industrial dispute. The protection afforded to a workman under the said provision cannot be taken away. If it is to be held that an order of discharge or dismissal passed by the employer without complying with the requirements of the said proviso is not void or inoperative, the employer may with impunity discharge or dismiss a workman."
Further in para14 of judgement it is held that : ".....The order of dismissal or discharge an employees brings an end of relationship of employer and employee from the date of dismissal but that order remains incohate as it is subject to approval of the authority under the said provision. In otherward relationships comes to an end dejure only when authority grants approval. If approval is not given nothing more is required to be done by the employee, as it will have to be deemed that the order of dismissal or discharge had never been passed. Consequence of it is that the employee is deemed to continue in service entitling him all benefits available. This being the position there is no need of a separate order for his reinstatement." 40 Hence in these circumstances I held that order of termination of workman was non est due to violation of provision of 33(2) (b) of ID Act. Thus I held that since workman was terminated illegally.
41 I do not find force in the contention of Ld. AR for management no.2 since workman in the cross examination has stated that he is not claiming any relief against M2 therefore claimant is not entitle to seek any relief from M2 even if ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 45 out of 50 termination is held illegal. I held that since termination of workman was illegal therefore he is entitle to reinstatement with continuity of service hence I order M1 to reinstate him. 42 As far as back wages is concerned grant of full back wages is not automatic. In Thakur Singh Rawat Vs. Jagjeet Singh & Ors. 2006, LLR 16 DHC while discussing various judgement of higher courts Hon,ble Judge has culled out various principles which could be considered while granting back wages which are mentioned in para no.18 which is reproduced as under:
(i) back wages is the normal rule to follow if a wrongful retrenchment or dismissal is set aside by the court.
(ii) There is an element of discertion in the grant of back wages which the Court has to exercise keeping in view the facts and circumstances not only of the workmen but also of the management.
(iii) The question whether the workman was or was not employed is a relevant consideration while granting back wages.
(iv) If the workman gainfully employed the back wages could be fully or partly denied to him.
43 Further in Reetu Marbles and Prabhakant Shukla 2010 (124) FLR 72, it was held by Hon'ble Supreme Court that:
"In our opinion the High Court was unjustified ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 46 out of 50 in awarding full back wages. We are also of the opinion that the Labour Court having found the termination to be illegal was unjustified in not granting any back wages at all. Keeping in view the facts and circumstances of this case we direct that the respondent shall be paid 50 per cent of the back wages from the date of termination of service till reinstatement."
44 In another case M/s P V K Distillery Ltd. Vs. Mahendra Ram, 1009(2) SCT 369, it was held that illegal termination does not create a right of reinstatement with full employment benefits and full back wages to an employee. It was observed that :
"14. In case of Haryana Urban Development Authority v. Om Pal, 2007(2) SCT 749 , it is stated that, it is now also well settled that despite a wide discretionary power conferred upon the Industrial Courts under Section 11A of the 1947 Act, the relief of reinstatement with full back wages should not be granted automatically only because it would be lawful to do so. Grant of relief would depend on the fact situation obtaining in each case. It will depend upon several factors; one of which would be as to whether the recruitment was effected in terms of the statutory provisions operating in the filed, if any.***
18. In case of Allahabad Jal Sansthan v. Daya Shankar Rai, 2005(2) SCT 699, this court has observed: A law in absolute terms cannot be laid down as to in which cases, and under what ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 47 out of 50 circumstances, full back wages an be granted or denied. The Labour Curt and/or Industrial Tribunal before which industrial dispute has been raised, would be entitled to grant the relief having regard to the facts and circumstances of each case. For the said purpose, several factors are required to be taken into consideration.***
19. In case of Madurantakam Coop. Sugar Mills Ltd. vs. S. Vishwanathan, 2005(2) SCT 111, the quantum of back wages was confined to 50%, stating: It is an undisputed fact that the workman had since attained age of superannuation and the question of reinstatement does not arise. Because of the award, the respondent workman will be entitled to his retiral benefits like gratuity, etc. and accepting the statement of the learned Senior Counsel for the appellant Mills that it is undergoing a financial crisis, on the facts of this case we think it appropriate that the full back wages granted by the Labour Court be reduced to 50% of the back wages.***
21. Giving a realistic approach to the matter and in spite of all these circumstances we are restricting ourselves to the question of 50% of the total back wages. Although services of the respondent have been terminated unjustifiably and illegally, it itself does not create a right of reinstatement with full employment benefits and full back wages.***"
45 In view of the aforesaid judgements I shall examine whether the workman is entitled for full back wages or not. ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 48 out of 50 Workman in his affidavit has deposed that he is unemployed after his termination as he could not get job elsewhere but he has not mentioned what effort he has made for alternative job. Where he has applied for job. He was an electrician. From the certificate EXWW1/24 it is evident that he has taken training in AC acquaintance thus he was a AC technician. AC technician has a great demand. The workman himself admitted in the cross examination that he worked as AC technician on daily basis. He has not deposed what he is earning but considering his qualification and field definitely he would earning equally to salary he was getting from M2. Further the workman has filed a case against the M1 and M2 despite the fact that he was not the employee of M1 which forced M2 to terminate him though act of M1 was not legal. Hence somewhat he is also responsible for his termination. Hence in these circumstance it would not be appropriate to grant back full back wages. Hence considering all the facts I order to grant 20% back wages from the date of termination till the date of award. Further if the management no.2 fail to make the payment after 30 days of publication of award it would be liable to pay interest @ 8% per annum on the awarded ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 49 out of 50 amount. Issue no.3 decided accordingly 46 RELIEF In view of my finding of issue no. 3, I direct M2 to reinstate the workman with continuity of service. M2 shall also pay 20% back wages to workman from the date of termination till the date of award with in 30 days of publication of award and if the M2 fail to make the payment it would be liable to pay interest @ 8% per annum on the awarded amount. The reference is answered accordingly. Reference is answered accordingly. Copy of the award be sent to the Secretary (Labour) Government of National Capital Territory of Delhi for necessary instruction.
Announced in the Open Court
On this 29th October, 2014 (SANJEEV KUMAR)
Presiding Officer, Labour Court
Karkardooma Courts, Delhi.
ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 50 out of 50
ID No. 07/11 Prakash Verma vs. M/s. Sony India Pvt. Limited, Page No. 51 out of 50