Delhi District Court
Between The vs The on 6 July, 2023
IN THE COURT OF CHANDER MOHAN, PRESIDING OFFICER
LABOUR COURT-06, ROUSE AVENUE DISTRICT COURT,
D.D.U. MARG, NEW DELHI.
LIR No. 1171/2019
Date of Institution 20.03.2019
Date of Award 06.07.2023
BETWEEN THE WORKMAN
Sh. Suresh Swami S/o Sh. Jagdish Prasad, Age: 50 Years, Contact No. 8860686061
R/o 2758, Gali Ram Swaroop Sabzi Mandi, Malka Ganj, Delhi-110007.
Through Sh. Vipin Kumar (Secretary), Engineering Worker Lal Jhanda Union
(Regd. No. 3398), C-12, Ramarh, G.T. Karnal Road, Jahangirpuri Mode, Delhi-
110033.
AND
THE MANAGEMENT OF
M/s Liberty Industries, B-2346, Narela, Delhi-40
Also at: (Fresh address filed on record by the workman on 06.02.2020)
M/s Liberty Industrial, Through its Proprietor Sh. Anirudh Singhal,
B-95, 1st Floor, Gujrawala Town, Delhi.
AWAR D
1.By this award I shall dispose of the reference sent by the Deputy Labour Commissioner (North West District), Labour Department, Govt. of the National Capital Territory of Delhi arising between the parties named above to this court vide notification No. F24/ID/544/18/NWD/520/18/Lab/13430-32 dated 28.02.2019 with the following terms of reference:-
"Whether the services of workman Sh. Suresh Swami S/o Sh. Jagdish Prasad, 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. Post the reference, workman filed his statement of claim with the averment that the workman had been working with the management since Digitally signed by CHANDER CHANDER MOHAN MOHAN Date:
January 2007 as a Clerk Cum Field Boy and his last drawn salary was Rs. 2023.07.06 15:53:43 +0530 LIR No. 1171/19 Page 1 of 11 23000/- per month; that the management had given the designation of Foreman to the workman but had never taken work of Foreman from the workman; that the workman was not having any administrative powers i.e. power to terminate, appoint, sanction leave, assign any work to any employee; that the management never issued appointment letter to the workman; that the workman used to work sincerely and honestly and he never gave any chance of complaint to the management; that management used to take work of 10-12 hours per day from the workman but did not pay overtime wages; that management also did not provide various legal facilities viz. Pay slip, appointment letter, HRA CL etc. to the workman; that workman had demanded the legal facilities number of time but management used to give false assurance and did not provide the same; that due to repeated demand of the said facilities, management got annoyed and on 10.08.2018 when the workman had demanded his earned wages for the month of July 2018, management terminated the services of the workman without any reason, chargehseet, conducting inquiry in violation of provisions of Section 25 F of the Industrial Disputes Act 1947; that the management also withheld his salary for the month of July and nine days of August 2018; that on 22.08.2018, workman sent a demand notice to the management but the management did not reply the same; that workman then filed a complaint before ALC; that the labour inspector visited the management establishment and advised management to reinstate the workman and to pay him his unpaid wages but management did not give any heed to the same; that thereafter workman filed his claim before ALC but the management did not cooperate there; that the workman neither left/absented from his services nor resigned or CHANDER MOHAN taken his full and final payment; that the workman is unemployed since the Digitally signed by CHANDER date of his termination; that despite best efforts the workman did not get job MOHAN Date: 2023.07.06 15:53:53 +0530 elsewhere and it has been prayed that an award be passed in favour of the LIR No. 1171/19 Page 2 of 11 workman and against the management thereby directing the management to reinstate the workman with continuity of service, full back wages and all consequential benefits.
3. Notice of the claim was issued to the management. Management while taking the preliminary objection in WS has stated that workman has approached the court with unclean hands and is also hiding, true, material and cogent facts; that the entire complaint is contradictory, irrelevant, illogical and without any rhyme or reason.
In parawise reply it has been stated that workman started working with the management from April 2017 and was drawing a salary of Rs. 17000/- per month; that management had issued a duly signed and stamped appointment/employment confirmation letter to the workman; that the workman was not at all sincere towards his work; that he never came to work on time and always indulged in illicit activities at work; that the workman was always told to act decently and in accordance with the rules and regulations of workplace as he always acted according to his own whims and fancies; that workman even failed to remain present on his job for normal working hours and used to come for work sometime for 5-6 hours a day; that the workman and one more employee (Ms. XYZ) were found in a compromising position at work premises on 06.08.2018 and since such behaviour could not be tolerated at the place of work, it was very strongly condemned by the management; that management terminated Ms.XYZ on the same day and all her dues were cleared and when the same thing was told to the workman, he started threatening the management; that due to above incident a conversation took place between the workman and the management wherein Digitally workman was asked to settled all the dues and balances; that a legal notice signed by CHANDER CHANDER MOHAN MOHAN Date:
2023.07.06 15:54:28 +0530 dated 18.08.2018 was also sent to the workman; that the workman also sent a LIR No. 1171/19 Page 3 of 11 reply dated 04.09.2018 alleging false and concocted stories but the workman never approached the management for clearance of his dues and on the contrary threatened the management to defame by spreading a rumor that management is having an affair with the accountant working for the management; that the workman has not mentioned about the legal notice dated 18.08.2018 of the management and his reply dated 04.09.2018 in his claim, which clearly shows the intention of the workman; that the workman was habitual in violating the rules and regulations of the work premises and also indulged in immoral act at work premises therefore there was no question of reinstating him back to work.
Rest of the contents of the statement of claim were categorically denied as wrong and incorrect. Lastly it has been prayed that claim of the workman be dismissed.
4. The workman filed rejoinder in which he denied all the contents of the written statement and reiterated and reaffirmed the facts of the statement of claim as correct and prayed that an award may kindly be passed in his favour in terms of the prayer made by him in the statement of claim.
5. After completion of pleadings, the following issues were framed vide order dated 15.11.2021:
1. Whether the workman has approached this court with unclean hands and hiding true, material and cogent facts regarding the case and thus his claim deserves straights dismissal with heavy exemplary costs? OPM
2. As per terms of reference. OPW
3. Relief.
Digitally Thereafter, matter was listed for WE.
signed by CHANDER CHANDER MOHAN MOHAN Date:
2023.07.06 15:54:37 +0530 LIR No. 1171/19 Page 4 of 11
6. In workmen evidence, the claimant examined himself as WW1. He tendered his evidence by way of affidavit as Ex WW1/A, which reiterates the averments mentioned in the statement of claim. Further the workman tendered in evidence documents i.e. copy of demand notice dated 22.08.2018 sent by the workman to the management as Ex WW1/1, its postal receipt as Ex WW1/2, and copy of claim filed before ALC as Ex WW1/3. Workman was duly cross-examined by Ld. AR for the management. Workman closed his evidence on 09.01.2023.
7. Thereafter, opportunity was given to the management to lead evidence. In ME, management examined Sh. Anirudh Singhal, proprietor of the management. He tendered his evidence by way of affidavit Ex MW1/A and and relied upon the document i.e. copy of appointment letter as Mark A and copy of the notice dated 18.08.2018 as Ex MW1/1. He was duly cross- examined by Ld. AR for the workman. Management closed its evidence on 25.02.2023 and matter was listed for final arguments.
8. I have heard the arguments on behalf of the parties and perused the record. My issue wise findings are as under:
Both the issues are taken up together as they are inter-related and involves common discussion.
The termination of service of the workman is not disputed by the management. The management has tried to justify the said termination on the ground of moral turpitude. As per testimony of Sh. Anirudh Singhal, Proprietor of the management, the workman was caught red handed by him in a compromising position with one female employee on 06.08.2018 and CHANDER MOHAN this behaviour could not be tolerated and therefore, the present workman Digitally signed by CHANDER MOHAN Date: 2023.07.06 15:54:46 +0530 alongwith the woman he was caught with, were terminated. In his cross-LIR No. 1171/19 Page 5 of 11
examination also the said witness reiterated that this fact. However, it is admitted by him that no inquiry was conducted. The law on conducting inquiry before termination is well settled. Where the employer fails to hold inquiry before dismissal or discharge of the workman, he can justify his action by leading evidence before the court and court has the jurisdiction to satisfy itself on evidence adduced as to justifiability of order of discharge or dismissal. In this regard reliance is placed on State of Uttrakhand Vs. Sureshwati (2021) 3 SCC 108. The following observations are relevant.
"18. This court has in a catena of decisions held that where an employer has failed to make an emquiry before dismissal or discharge of a workman, it is open for him to justify the action before the Labour Court by leading evidence before it. The entire matter would be open before the tribunal which would have the jurisdiction to satisfy itself on the evidence adduced by the parties whether the dismissal or discharge was justified."
"19. A four Judge Bench of this Court in Workmen of the Motipur Sugar Factory Private Ltd. v. Motipur Sugar Factory (AIR 1965 SC 1803) held that:
11. It is now well settled by a number of decisions of this Court that where an employer has failed to make an enquiry before dismissing or discharging a workman it is open to him to justify the action before the tribunal by leading all relevant evidence before it.
In such a case the employer would not have the benefit which he had in cases where domestic enquiries have been held.
Ld. AR for the management has tried to justify not holding the inquiry on the ground that it may have cast a stigma on the female with whom the present workman was caught in a compromising position. This alibi for not conducting inquiry may be true but at the same time, it was duty of the management to place some material before the court to prove the above allegations so that an objective opinion is formed. In the absence of any CHANDER MOHAN such material, the court cannot arrive at a conclusion that any such incident had indeed happened. The only material before the court is a bald statement Digitally signed by CHANDER MOHAN Date: 2023.07.06 15:54:55 +0530 LIR No. 1171/19 Page 6 of 11 contained in evidence by way of affidavit (MW1/A) of the proprietor of the management that he had seen the said immoral act of the workman, which, in the opinion of the court is not sufficient to prove the said allegation. Merely because the workman has admitted in his cross-examination that he knows the name of the lady about which the management has mentioned in its WS and she was a co-worker, an inference of immoral act cannot be drawn. The said statement only proves that the said co-worker was working with the management during the relevant time. Accordingly, it is held that the management has failed to justify the termination of the workman and therefore, same is held to be bad in law.
9. As far as reinstatement is concerned, it does not seem to be an ideal option. On this point, this court finds support from the judgment of the Hon'ble Supreme Court of India in case titled as Employers, Management of Central P & D Inst. Ltd Vs. Union of India & Another, AIR 2005 Supreme Court 633 in which it was held that "it is not always mandatory to order reinstatement after holding the termination illegal and instead compensation can be granted by the court."
Recently the Hon'ble Delhi High Court in the case titled as Vikas Kumar Vs. South Delhi Municipal Corporation, WP (C) 8692/2018 observed as follows (paragraph 23 and 24): (Neutral citation 2023/DHC/000420).
"23. The aim and object of the Industrial Disputes Act is to impart social justice to the workman but the same does not imply or guarantee automatic relief of reinstatement especially in light of the recent shift in law of granting compensation in lieu of reinstatement, especially in cases where granting reinstatement would not serve the purpose and be improper.
Digitally signed by 24. Section 11 A, ID Act, gives the Labour Courts/ Tribunal plenary CHANDER CHANDER MOHAN jurisdiction to grant appropriate relief in case of discharge or dismissal of MOHAN Date:
2023.07.06 workmen. Labour Courts/Tribunals are empowered to use their discretion 15:55:02 +0530 to grant relief of either reinstatement with back wages or compensation as the case may be."LIR No. 1171/19 Page 7 of 11
10. This court is of the opinion that since both the parties have lost faith in each other, reinstatement of the claimant in service would not be in the interest of both the parties and compensation in lieu of reinstatement would be a better option. However, the workman has not proved that he was not gainfully employed. Simple averment cannot be taken as proof and he should have proved that he tried many places by applying but did not get the job. Some overt act was required to be brought on record.
The Hon'ble Supreme court in case titled as Kendriya Vidyalaya Sangathan And Another Vs. S C Sharma, (2005) 2 Supreme Court cases 363, has observed as follow:
"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."
11. As already discussed, there is nothing on record to suggest that workman remained unemployed for such a long period. It cannot be presumed that workman remained idle for such a long period. Now as far as, the quantum of compensation is concerned paragraph 41 of case titled Vikas Kumar Vs. South Delhi Municipal Corporation, WP (C) 8692/2018 is relevant :
"41.This court in Jagbir Singh Vs. Haryana State Agriculture Marketing Board, (2009) 15 SCC 327 held that while awarding compensation in lieu of reinstatement, a host of factors should be kept in mind and inter alia held as under:
"16 While awarding compensation, the host of factors, inter-alia, manner and method of appointment, nature of employment and length of service are relevant. Of course, each case will depend upon its own facts and circumstances.....".
12. Hence it can be seen that for determination of compensation, the length of service of the workman is one of the important considerations. It is case of CHANDER MOHAN the workman that he had been working with the management as a Clerk-cum-
Digitally signed byfield Boy since January 2007 however, he had been given designation of CHANDER MOHAN Date: 2023.07.06 15:55:11 +0530 LIR No. 1171/19 Page 8 of 11 Foreman; that his last drawn salary was Rs. 23000/- per month; that management did not provide him various legal facilities as per labour law and when he workman demanded the same, management got annoyed and terminated his services on 10.08.2018 illegally, unjustifiably and arbitrarily in violation of provisions of Section 25 F of the Industrial Disputes Act 1947. On the other hand, management has taken the plea that the workman had joined the services of the management in April 2017 and he was drawing a salary of Rs. 17000/- per month. The management confronted the workman with copy of one document Ex MW1/M1 during his cross-examination and the workman admitted his signatures on the same. He further admitted that his mobile number was also mentioned on the said document as point B. I have carefully examined the said document. It is in the form of a certificate issued by the management vide which, it appears that the service of the workman was confirmed. As per the said document, the workman was working with the management from April 2017 till 29.06.2018. The workman has put his signatures at the bottom of the said document and also admitted the same in his cross-examination. No doubt the said document is only a photocopy but at the same time, while the workman was confronted with the said document, he never disputed its authenticity or offered any alternative explanation for the same therefore it was exhibited as Ex WW1/M1. Infact the workman had voluntered that he also has a certificate of prior to April 2017 which was issued by the management to him and he can produce the same. However, no such document was ever produced before the court. Accordingly, this court is of the opinion that the management has produced a document duly acknowledged by the workman under his signatures, to prove that the workman was employed with the management from April 2017 till CHANDER MOHAN 29.06.2018 i.e. for a period of about one year two months and his salary was Digitally signed by CHANDER MOHAN Date: 2023.07.06 Rs. 17000/- per month. This court has also take note of the fact that though 15:55:32 +0530 LIR No. 1171/19 Page 9 of 11 MW1 in his cross-examination has expressed his inability to show the attendance register and wages register for the period 2007 till year 2018 in his cross-examination but this court is of the opinion that adverse inference ought not to be drawn in view of the document Ex MW1/M1 which has already been proved by the management to show the period for which the workman had worked. The workman has not even produced any co-worker etc. in support of his claim that he worked with the management for about 10 years. No document like ESI card etc was even produced by him. Accordingly, it is held that there is no evidence on record to prove that workman worked with the management from 2007 till 2018 or his salary was Rs. 23000/- as claimed by him. However, the MW1 has admitted in his cross- examination that the salary of July and some days of August 2018 is pending.
13. Keeping in view the fact that workman served the management for a period of one year two month, his last drawn salary to be Rs. 17000/-, his salary of July and some days of August is admittedly due, nature of his job and other facts and circumstances of the present case, this court deems it appropriate to grant a lump sum compensation to the tune of Rs. 1,20,000/- (one lakh twenty thousand) to claimant in lieu of his wrongful termination, reinstatement and all other entire benefits. The amount of compensation shall be paid to the workman by the management within one month from the date when this award becomes enforceable failing which the amount shall carry on interest @ 9% p.a. from the date i.e. becomes due till the time it is realized.
14. Issue No. 3 Relief In view of the above findings of the court it is held that the workman is entitled to relief against the management as stated above and a ward to that effect Digitally signed by CHANDER CHANDER MOHAN MOHAN Date:
2023.07.06 15:56:23 +0530 is hereby passed. Reference stands answered and disposed off accordingly.LIR No. 1171/19 Page 10 of 11
A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt/Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
Announced in open court CHANDER Digitally signed by
CHANDER MOHAN
on 06.07.2023 MOHAN Date: 2023.07.06
15:53:11 +0530
(CHANDER MOHAN)
PRESIDING OFFICER: LABOUR COURT-06
ROUSE AVENUE DISTRICT COURT
NEW DELHI.
LIR No. 1171/19 Page 11 of 11