Delhi District Court
Goverdhan Parasad vs M/S Sonu Exim Pvt. Ltd on 14 March, 2024
IN THE COURT OF MS. REKHA
PRESIDING OFFICER : LABOUR COURT - 07
ROUSE AVENUE COURTS : NEW DELHI
LIR No. 2139/17
CNR No. DLCT13-0085606-2017
Shri Goverdhan Prasad
S/o Sh. Pradhan
R/o B-18, Devli Gaon,
Khanpur, New Delhi-110062
Through: All India General Majdoor Trade
Union (Regd. No. 3025)
Sh. Pramod Kumar Rajput - General Secretary
Sh. Anil Kumar Rajput - Advocate
170, Bal Mukund Khand, Giri Nagar,
Kalkaji, New Delhi -110019 ............ Workman
VERSUS
M/s. Sonu Exim Pvt. Ltd.
E-47/10, Okhla Phase-II,
New Delhi - 110020.
.......... Management
Date of receiving of Reference : 22.07.2017
Date of passing Award : 14.03.2024
AWARD/JUDGMENT
1. Vide Reference No.F.24(568)/Lab./SD/2017/14782
dated 14.07.2017, the following Reference was received for
adjudication, from Dy Labour Commissioner, under Section 10
LIR No. 2139/17 Goverdhan Parasad Vs. M/s Sonu Exim Pvt. Ltd. Page 1
(1)(c) and 12(5) of Industrial Disputes Act, 1947 read with
Notification no. S-110011/2/75/DK (IA) dated 14.04.1975 and
Notification no. F-1/31/61/616/Estt./2008/7458 dated 03.03.2009
in respect of industrial dispute between the Workman and
Management:
"Whether the services of workman Sh.
Goverdhan Prasad S/o Sh. Pradhan, aged-
44 years, 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. Notice of aforesaid Reference was issued to the
Workman and after service of said notice, Statement of
Claim was filed by workman. The brief facts in narrow
compass, relevant and necessary for the disposal of the present
matter, as stated in his Statement of Claim, are as follows:
i. That the workman had been working with
M/s. Sonu Exim Pvt. Ltd. (hereinafter
referred to as "Management") since
01.06.2014 as Press Man with his last
drawn salary was Rs. 10,010/- per month.
The workman never gave a chance of
complaint to the management. During the
course of employment, the services of
LIR No. 2139/17 Goverdhan Parasad Vs. M/s Sonu Exim Pvt. Ltd. Page 2
workman were clean. The service record of
workman is clean. From the date of
appointment till date, the workman has not
received any warning letter or charge-sheet
because the workman has worked hard,
honestly and peacefully in the organization.
But the employer despite assurance did not
provide the benefits under labour laws -
leave book, overtime card, transport
allowance, house allowance, salary hike,
bonus as per the balance sheet of the
institute, and casual national festival
holidays, annual leave, ESI, P.F. to the
workman. On repeated verbal demands of
the workman, the management did neither
implement the legal facilities nor has paid
the amount for previous statutory
benefits.
ii. That on 01.08.2015, the management
without giving any written notice and
earned wages for the period from 01.7.2015
to 31.07.2015 had terminated the services
of the workman. The management despite
oral repeated request of the workman did
neither reinstated the workman nor paid
unpaid dues which is complete in violation
LIR No. 2139/17 Goverdhan Parasad Vs. M/s Sonu Exim Pvt. Ltd. Page 3
of Section 25F of the Industrial Disputes
Act.
iii. That despite Demand Notice dated
03.08.2015 which was sent by the workman
through his Labour Union to management
thereby demanding his reinstatement and
unpaid dues but the management, despite
service of the same, did neither replied nor
complied with the same. The workman gave
a written complaint through his union to
the Regional Assistant Labour
Commissioner, Delhi State Government,
the Assistant Labour Commissioner sent
the Labour Inspector to the institute, but
the management did neither paid the
outstanding salary of the workman nor
reinstated the workman even on the request
of Labour Inspector Also. The Labour
Inspector gave notice to the management
thereby asking the production of record of
the workman in the labour office but all in
vain.
iv. Thereafter, the workman had filed a
Statement of Claim through his union
before the Assistant Labour Commissioner,
LIR No. 2139/17 Goverdhan Parasad Vs. M/s Sonu Exim Pvt. Ltd. Page 4
Delhi State Government, District South
Delhi, Pushpa Bhawan, Pushp Vihar, New
Delhi but the management did neither
appear nor filed any reply before the
Assistant Labour Commissioner despite
service of notices sent by Asst. Labour
Commissioner, hence, the Labour
Conciliation Officer/ Dy. Labour
Commissioner has sent the case to the
Court for adjudication. It is stated that the
workman is living in unemployment and
despite his tireless efforts, the workman
has not got a job anywhere. It was prayed
by the workman that he is entitled to be
reinstated in service with full back wages
and continuity of his service along with all
consequential benefits arising therefrom.
3. DEFENCES:
Notice of Statement of Claim was issued to
Management and Management filed its Written Statement in
which allegations leveled in the statement of claim have been
denied and certain preliminary objections have been taken. In the
Written Statement, the management raised following defences:
i. That the workman has left his job
voluntarily after taking his full and final
payment, and thereafter develop the illegal
LIR No. 2139/17 Goverdhan Parasad Vs. M/s Sonu Exim Pvt. Ltd. Page 5
design to extort money with the false
pretext of termination of his employment.
That the present claim of the workman is
not maintainable in the eyes of law because
no cause of action ever arose to file the
instant claim against the answering
management. It is stated that the workman
expressed his desire through a letter to
leave his job with the management
voluntarily and asked for his full and final
payment. Subsequently, the management
adhered to request the workman and
accordingly, the full and final payment
amounting to Rs.8,167/- was given to the
workman by the management on
31.07.2015, and the declaration was duly
acknowledged and signed by the workman.
ii. It is stated that the workman is not
entitled for any amount including back
wages by the management as the workman
is gainfully employed at present and also
because he had left his job with the
management voluntarily and stated that the
workman has mentioned the wrong date of
appointment. The fact is that the workman
was appointed by the management on
LIR No. 2139/17 Goverdhan Parasad Vs. M/s Sonu Exim Pvt. Ltd. Page 6
20.08.2014 as Pressman, and the workman
has not produced even a tiny piece of
document which may reflect that the had
been appointed on 01.06.2014, or that he
has been terminated on 01.08.2015, hence,
the claim of the workman is liable to be
dismissed.
4. To this Written Statement filed by the Management,
the workman had also filed his rejoinder in which contents of the
statement of claim have been reiterated and allegations levelled
in the Written Statement have been denied.
5. ISSUES:
On the basis of the pleadings of the parties, the
following issues were framed:
1. Whether the claimant has settled the
matter? OPM
2. Whether the services of the workman
were terminated illegally and/or
unjustifiably by the management and if so,
to what relief is she entitled? OPW
3. Relief
6. WORKMAN EVIDENCE:
In order to prove his case, the workman stepped into
the witness-box as WW-1. He exhibited his affidavit as
Ex.WW1/A and relied upon the following documents:
LIR No. 2139/17 Goverdhan Parasad Vs. M/s Sonu Exim Pvt. Ltd. Page 7
Ex.WW1/1 Copy of complaint addressed to ALC.
Ex.WW1/2 Report of Labour Inspector
Ex.WW1/3 Office copy of demand notice dated
03.08.2015
Ex.WW1/4 Copy of Statement of claim filed before
Conciliation Officer.
7. RESPONDENT EVIDENCE:
8. The Management got examined Sh. Satender Kumar S/o Sh. Rama Shankar Upadhyay as MW-1. He exhibited his affidavit as Ex.MW1/A and relied upon the following documents:
Ex. MW1/1 Authority letter
Ex.MW1/2 Request letter for appointment (OSR) (already
exhibited as Ex. WW1/M6)
Ex.MW1/3 Bio-Data Form (OSR) (already exhibited as
Ex.WW1/M5)
Ex.MW1/4 Appointment letter (OSR) (already exhibited as
WW1/M1)
Mark-X1 Photocopy of ESIC temporary identity certificate.
Ex.MW1/6 Form No. 1 (OSR) (already exhibited as
Ex.WW1/M4)
Ex.MW1/7 Form No.2 (OSR) (already marked as Mark-B)
Ex.MW1/8 Form No.11 (OSR) (already exhibited as
Ex.WW1/M2)
Ex.MW1/9 Form F (OSR) (already marked as Mark A)
Ex. MW1/10 Form 16 (OSR) (already exhibited as Ex. WW1/M3)
Ex.MW1/11 Letter sent by the workman to the management
(OSR) (already marked as Mark-C)
Ex.MW1/12 Full and final payment receipt (OSR) (already marked
as Mark-D)
LIR No. 2139/17 Goverdhan Parasad Vs. M/s Sonu Exim Pvt. Ltd. Page 8
9. I have heard the arguments and perused the material available on record.
10. The issuewise findings are as under :
11. ISSUE No. 11. Whether the claimant has settled the matter? OPM The onus to prove issue no. 1 was conferred upon the management/respondent.
Before proceeding further, it is pertinent to mention here that so far as the relationship of employeeemployer between the Workman and Management is concerned, the same has been categorically admitted by the Management in its Written Statement as well as in the evidence of MW01 .
In order to discharge its onus, MW1Satender Kumar deposed that the workman has never been terminated at any moment of time by the management and workman expressed his desire through a letter Ex. MW1/11 to leave his job with the management voluntarily and asked for his full and final payment. Consequently, the management had accepted his request and on 31.07.2015, made full an final payment of Rs. 8,167/ to the workman and declaration Ex. MW1/12 was duly acknowledged and signed by the workman.
On the other hand, WW1/workman deposed that his services had been illegally terminated by the management on LIR No. 2139/17 Goverdhan Parasad Vs. M/s Sonu Exim Pvt. Ltd. Page 9 01.08.2015 without giving any notice and rhyme & reason.
It is relevant to pen down here that during the cross examination, WW1/workman denied the suggestion that he had written any letter to the management seeking full land final settlement of his dues. The document MarkC (Ex. MW1/11) was not written by him to the management. The signatures appearing at pointA on MarkD (Ex. MW1/12) are not of him. He denied the suggestion that the management made the payment of Rs. 8167/ towards full and final settlement of his dues on 31.07.2015. He also denied the suggestion that he voluntarily resigned from the job as he joined services with another concerned at excessive salary and voluntarily said that his services were terminated by the management. He denied the suggestion that he was not entitled to any amount as he had already settled his dues with the management.
Further, perusal of file shows that an application U/s 45 of Indian Evidence Act had been moved on behalf of the management for opinion/leading evidence of handwriting expert and which vide order dt. 20.02.2020 was allowed by the Court but on 20.02.2020, MW1 had been examined and crossexamined and discharged on 20.02.2022 and matter was fixed for remaining management's evidence but despite opportunity given, no further evidence was lead on behalf of the management.
It is very very relevant to pen down here that on 25.05.2022, ld. AR of the management stated that the LIR No. 2139/17 Goverdhan Parasad Vs. M/s Sonu Exim Pvt. Ltd. Page 10 management did not want to examine any handwriting expert or any other witness. Hence, on the statement of Executive of management, ME was closed.
Here, it is said that when the workman flatly refused to accept that he had written the alleged resignation letter MarkC (Ex. MW1/11) and signatures on alleged Acknowledgement of full land final payment MarkD (Ex. WW1/12) and management's application was allowed for opinion/leading evidence of handwriting expert, then what stopped the management to lead evidence of Handwriting Expert for verification of signatures of workman on those documents by the handwriting expert to substantiate its claim but the management chose otherwise.
Further, during the crossexamination, MW1Satender Kumar stated that resignation letter EX. Mw1/11 did not bear any date nor bear any acceptance of the same from the side of management. No formal acceptance of the resignation was ever communicated in writing to the claimant.
In light of above, it is said that the Management has utterly failed to discharge its onus to prove that the workman has settled the matter with the management. Hence, issue no. 1 is decided against the management and in favour of the claimant/workman.
12. ISSUE No. 22. Whether the services of workman were terminated illegally and/or unjustifiably by the management and if so, to what relief is she entitled? OPW LIR No. 2139/17 Goverdhan Parasad Vs. M/s Sonu Exim Pvt. Ltd. Page 11 The onus to prove this issue was conferred upon the workman.
In order to discharge its onus, the workman/WW1 Goverdhan Prasad deposed that he had been working with the management since 01.06.2014 as a Pressman and did not give any chance of complaint to the management during his service period with the management. Though, statutory facilities were orally demanded by the workman from the management but same were not provided by the management to the workman. Further, on 01.08.2015, the management without giving any rhyme and reason and earned wages w.e.f. 01.07.2015 to 31.07.2015 had illegally terminated his services with the management. It is also deposed that a demand letter dt. 03.08.2015 had been sent by the workman to the management through his Labour Union demanding his unpaid earned wages and request of his reinstatement but all in vain. Also, a written complaint was given by workman to the Asst. Labour Commissioner, consequently, Labour Inspector was sent to institution of management by Asst. Labour Commissioner but the management flatly refused to take the workman on duty and matter could not be compromised before Asst. Labour Commissioner.
On the other hand, the management got examined Sh. Satender Kumar as MW01. He deposed that the workman has never been terminated at any moment of time by the management and workman expressed his desire through a letter to leave his job LIR No. 2139/17 Goverdhan Parasad Vs. M/s Sonu Exim Pvt. Ltd. Page 12 with the management voluntarily and asked for his full and final payment. The management had accepted his request and on 31.07.2015 made full an final payment of Rs. 8,167/ to the workman and declaration was duly acknowledged and signed by the workman.
It is relevant to pen down here that the Court has already given its opinion while deciding the issue no. 1 that the management has failed to prove that the workman has settled the matter with the management. So, defence of the management that the claimant/workman has settled the matter with the management by accepting full and final settlement on 31.07.2015 has no merit.
It is worthwhile to mention here that during the cross examination, WW1/workman denied the suggestion that the management did not terminate his services on 01.08.2015.
At this juncture, the reference may be made to the definition of retrenchment as contained in Section 2 (oo) of Industrial Disputes Act which reads as follows:
(oo) " retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include--
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in LIR No. 2139/17 Goverdhan Parasad Vs. M/s Sonu Exim Pvt. Ltd. Page 13 that behalf; or (bb) termination of the service of the workman as a result of the non- renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or] (c) termination of the service of a workman on the ground of continued ill-
health;]
13. Clearly, retrenchment means termination for any reason whatsoever. The present case does not fall within the exceptions contained in the said provision. Therefore, I am of the view that this is a case of retrenchment and the management was bound to comply with the provisions of Section 25F and Section 25G of ID Act which read as follows:
25F. Conditions precedent to retrenchment of workmen.- 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 [for every completed year of continuous service] or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served LIR No. 2139/17 Goverdhan Parasad Vs. M/s Sonu Exim Pvt. Ltd. Page 14 on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette].
25G.Procedure for retrenchment.--Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.
It will not be out of place to mention here that the management has not taken the plea that the management has given any notice to workman prior to his retrenchment, or given any notice pay or retrenchment compensation. Thus, it amounts to illegal termination of services of the workman. Since the Management had neither issued any prior notice to the Workman nor given any notice pay or retrenchment compensation to him nor given any notice in accordance with Sec.25F(c) of Industrial Disputes Act to the appropriate government, therefore, it is held that termination of services of the workman by the Management was illegal. Hence, issue no. 2 is decided in favour of the workman and against the management.
14. RELIEF:
LIR No. 2139/17 Goverdhan Parasad Vs. M/s Sonu Exim Pvt. Ltd. Page 15 The Workman has prayed for his reinstatement with full back wages and continuity of service with all consequential benefits.
It is worthwhile to mention here that the workman has claimed in his statement of claim and evidence WW1/A that his last drawn salary was Rs. 10,010/ per month and this fact has not been disputed by the management in its Written Statement and Evidence.
Hence, in light of above, it stands proved that the last drawn salary of the workman was Rs. 10,010/ per month.
It is also worthy to note here that WW1/workman testified that he is unemployed and despite his best efforts, he could not get the job. Further, during crossexamination, he denied the suggestion that he voluntarily resigned from the job as he joined services with another concern at excessive salary and voluntarily stated that his services were terminated by the management.
Now coming to the reinstatement of workman with full back wages.
The Hon'ble Supreme Court has held in caselaw titled as Jasmer Singh Vs. State of Haryana, 2015(4) SCC 458 as follows:
"The workman has worked for more than 240 days in a calendar year and termination order is void ab initio in law for noncompliance of Sections 25F (clauses (a) and (b)), 25G and 25H of the Act, LIR No. 2139/17 Goverdhan Parasad Vs. M/s Sonu Exim Pvt. Ltd. Page 16 therefore, the Industrial TribunalcumLabour Court has rightly set aside the order of termination of services of the workman and awarded the order of reinstatement with continuity of service and full back wages. The said relief in favour of the appellantworkman, particularly the full back wages is supported by the legal principles laid down by this Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D. ED.) & Ors., 2013(4) S.C.T. 716 : (2013) 10 SCC 324, wherein the Division Bench of this Court to which one of us was a member, after considering threeJudge Bench decision, has held that if the order of termination is void ab initio, the workman is entitled to full back wages."
It has been held by Hon'ble Supreme Court in Hindustan Tin Works (P) Ltd. Vs. Employees of M/s Hindustan Tin Works Pvt. Ltd. & Ors., (1979) 2 SCC 80 that full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. It has been further held in the said case by Hon'ble Apex Court as follows:
"When it was held that the termination of services was neither proper nor justified, it would not only show that the workmen were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workmen were always ready to work but they were kept away therefrom on account of an invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them."
It is pertinent to mention here that in the landmark judgment titled as Deepali Gundu Surwase Vs. Kranti Junior Adhyapak & Ors., 2013(10) SCC 324, the Hon'ble Supreme Court has held that in cases of wrongful termination of service, reinstatement with continuity of service and back wages is the LIR No. 2139/17 Goverdhan Parasad Vs. M/s Sonu Exim Pvt. Ltd. Page 17 normal rule. Following the judgment of Deepali Gundu Surwase (sapra), the Hon'ble Supreme Court has again held in Jayantibhai Raojibhai Patel Vs. Municipal Council, Narkhed, 2019(17) SCC 184 that denial of back wages to employee, who has suffered due to illegal act of employer would amount to indirectly punishing employee concerned and rewarding employer by relieving him of obligation to pay back wages including emolument.
The Hon'ble Apex Court has held in this regard in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak & Ors., 2013(10) SCC 324 as follows:
"The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to LIR No. 2139/17 Goverdhan Parasad Vs. M/s Sonu Exim Pvt. Ltd. Page 18 get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."
(underlining added) It has also been held in Deepali Gundu's case (supra), "Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments."
(underlining added)
15. In the present case, the Workman/WW1 had specifically deposed in his affidavit of evidence that he is unemployed and he could not get the job despite his best efforts. Thus, the onus had shifted to the Management to prove the contrary. The Management was required to lead cogent evidence of gainful LIR No. 2139/17 Goverdhan Parasad Vs. M/s Sonu Exim Pvt. Ltd. Page 19 employment of the Workman during the intervening period. But the Management has failed to do so.
Thus, there is no evidence from the side of Management regarding gainful employment of the Workman, whereas nothing came from the crossexamination from the workman that he was gainfully employed somewhere else. Hence, it is clear that the Management has failed to prove that the Workman was gainfully employed after illegal termination of his employment since 01.08.2.015.
The Hon'ble Supreme Court in Deepali Gundu's case (supra) has held that the Courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
16. Hence, in view of the aforesaid discussion/analysis and the law laid down by the Hon'ble Apex Court, the Statement of Claim as filed by the Workman is allowed and the Management is directed to reinstate the Workman in service with continuity of service and full back wages along with all other consequential benefits.
LIR No. 2139/17 Goverdhan Parasad Vs. M/s Sonu Exim Pvt. Ltd. Page 20
17. Award is passed accordingly. Reference stands answered in aforesaid terms. Copy of this Award be sent to Labour Commissioner for publication. Case file be consigned to the Record Room after due compliance. Digitally signed by REKHA REKHA Date:
2024.04.06 10:37:08 +0530 Dictated in the open Court (REKHA) th on 14 March, 2024 Presiding Officer Labour Court - 07 Rouse Avenue District Court, New Delhi LIR No. 2139/17 Goverdhan Parasad Vs. M/s Sonu Exim Pvt. Ltd. Page 21