Delhi District Court
Sh. Hemant Kumar vs M/S. Krishna Prakash Enterprises on 3 December, 2022
IN THE COURT OF GORAKH NATH PANDEY,
ADDL. DISTRICT & SESSIONS JUDGE,
PRESIDING OFFICER : LABOUR COURT - IV,
ROUSE AVENUE COURTS : NEW DELHI.
LID No.113/18
CNR No.DLCT130011202018
IN THE MATTER OF:-
Sh. Hemant Kumar,
S/o Sh. Brajraj,
R/o H.No.196, Near Railway Station Behta Hazipur,
Loni, District Ghaziabad, U.P.
Through
Delhi General Employees Congress Union (Regd.),
D-1162, Gali No.5, Ashok Nagar,
Delhi - 110093.
...... Workman/Claimant
Versus
M/s. Krishna Prakash Enterprises,
Kh.No.1142, near Luthra Estate,
Rajokari, Delhi - 110038.
Through its Prop. Sh. Mirnal Bhagat.
....... Management
Date of institution of the case : 31.03.2018
Date of final arguments : 03.12.2022
Date of passing the Award : 03.12.2022
Decision : Award Passed.
AWARD
1. The workman filed this statement of claim under
Section 2A of The Industrial Disputes Act, 1947 stating therein
that he was working as 'Store Keeper' with the management since
April, 2008 and his last drawn salary was Rs.21,500/- per month;
he had not afforded any opportunity of any complaint whatsoever
to the management nor there was any allegation against him.
LID No.113/2018
Hemant Kumar v. Krishna Prakash Enterprises
Page 1 of 23
It is further stated in the statement of claim that
earlier the management was working in the name and style of
M/s. Adarsh Marketing and its registered office was situated at
HCMR Ware Housing Complex No.4, Mela Ram Vatika,
Sewadham Road, Mandoli, Delhi and at the same address, the
registered office of the present management is situated.
It is further stated in the statement of claim that the
management has not provided the legal facilities to the workman
such as appointment letter, identity card, pay slips, ESI, TA, etc.
The management compelled the workman to work for 12 hours
but no overtime was paid to him.
It has been further stated in the statement of claim
that the workman time and again demanded the said legal
facilities from the management and every time the management
gave false assurance to him to provide the same very soon.
It is further contended that after working so many
years with the management, the workman was transferred to C-
153, Bulandsher Road, Industrial Area, District Ghaziabad, U.P.
where Depot Manager Sanjeet Ojha was posted who always
misbehaved with the workman. Further, the workman tried to
understand him but of no avail. Due to the conduct of the said
Sanjeet Ojha, the workman suffered depression. The workman
also told the above official to accept his resignation but on
01.04.2017, the workman was transferred to Delhi office of the
management. The management thereafter terminated the services
of the workman on 10.04.2017 without issuing any
notice/memo/charge sheet.
It is further stated in the statement of claim that the
workman took advance of Rs.40,000/- from the management for
LID No.113/2018
Hemant Kumar v. Krishna Prakash Enterprises
Page 2 of 23
the marriage of her sister and out of the said amount, the
workman paid Rs.10,000/- to the management and Rs.30,000/- is
yet to be paid by the workman to the management.
Aggrieved from the termination, the workman made
complaint against the management before the Labour Office on
26.06.2017 but no settlement could be arrived at between the
parties.
The workman also issued legal demand notice to the
management dated 06.09.2017 for reinstatement and back wages
which was not replied nor the services of the workman were
reinstated. The workman also filed his statement of claim before
the Conciliation Officer but of no avail and hence the present
case.
The workman claims to be unemployed from the
date of his illegal termination. As claimed, the termination of
service of the workman is illegal and unjustified as the
management violated the provisions of I.D. Act. Further, the
management has not issued any charge-sheet/warning nor
conducted any domestic enquiry while terminating the service of
the workman. It is prayed that an award be passed in favour of
workman and against management directing the management to
reinstate him with consequential benefits including full back
wages and continuity in service.
2. Notice of the statement of claim was issued to the
management. Management appeared and filed its written
statement contended that (i) the management established in the
year 2012 and is engaged in the business of maintenance, house
keeping & upkeep of warehouse on contract basis; (ii) the
LID No.113/2018
Hemant Kumar v. Krishna Prakash Enterprises
Page 3 of 23
workman did not join its duties with the management w.e.f. April,
2008; (iii) the management has no concern or relation whatsoever
with M/s. Adarsh Marketing; (iv) the workman was not a
workman as defined U/s 2 (S) of I.D. Act; (v) the services of the
workman were neither terminated; (vi) the workman used to
remain absent from its duties without information
unauthorizedly; (vii) he was asked to come on duty several times
but the did not come to resume the duties (viii) he was involved
in misappropriation of money causing breach of trust and he was
involved in putting pressure upon the transporters and their
employees to give him commission; (ix) the workman was also
involved in the incidents of thefts and pilferage; (x) no industrial
dispute exists between the parties as no cause of action arose
between the parties; (xi) the workman is gainfully employed and
is earning its livelihood; (xii) the workman had Rs.30,000/- as an
advance payable to the management and the said amount was
adjusted against the one month notice pay in lieu of notice.
The management denied the other averments made
in the statement of claim and prayed to dismiss the claim petition.
3. Vide order dated 16.05.2019, the following issues
were framed in view of pleadings of the parties:-
ISSUES:
(1) Whether the workman is qualified to be a workman
as provided under Section 2 (s) of the I.D.Act?OPW
(2) Whether the services of workman were terminated
illegally and/or unjustifiably by the management and if so, to
what consequential relief is he entitled for?OPW
(3) Whether the workman himself had abandoned his
job and his service were never terminated by the management?
OPM
(4) Relief.
LID No.113/2018
Hemant Kumar v. Krishna Prakash Enterprises
Page 4 of 23
The case was, thereafter, fixed for evidence of
workman.
4. In order to discharge the onus and prove the issue,
the claimant had appeared as witness and filed in evidence, his
examination in chief by way of affidavit Ex.WW1/A wherein he
had reiterated the contents of his statement of claim on solemn
affirmation. Besides this, he had also placed on record the
following documents :-
(i) Ex.WW1/1: Photocopy of I-card of the workman
issued by the management;
(ii) Ex.WW1/2: Carbon copy of complaint addressed to
the ALC;
(iii) Ex.WW1/3 to Ex.WW1/5: Copy of demand notice
issued to the management and its postal receipts;
(iv) Ex.WW1/6: Envelope;
(v) Ex.WW1/7: Copy of statement of claim filed before
the Conciliation Officer; and
(vii) Ex.WW1/8: Certificate under Section 2A of I.D. Act
issued by the Conciliation Officer.
The evidence of the workman was thereafter closed.
5. In rebuttal, management had examined Sh. Mrinal
Bhagat as MW1 who filed his affidavit by way of evidence as
Ex.MW1/A, reiterating the factual contents of the written
statement of management. He has also placed on record the
documents Mark A: death certificate of Praveen Kumar Bhagat
and Mark B: Certificate of Registration and Allotment of TIN of
M/s. Krishna Prakash Enterprises.
LID No.113/2018
Hemant Kumar v. Krishna Prakash Enterprises
Page 5 of 23
6. I have heard the final arguments addressed by the
AR for the parties. I have also gone through the materials lying
on record. My issue-wise findings are as under:
Issue No.1
Whether the workman is not covered under definition of a
"workman" as defined under Section 2(s) of I.D. Act?OPM
7. The claimant joined the employment of the
management as 'Store Keeper'. The management admitted that he
was appointed as 'Store Keeper'. This issue was framed in view
of the contention of the management in reply/written statement
that the workman worked as 'Store Keeper' and was mainly
discharging Managerial, Supervisory & Administrative
Duties/functions. Though the management has taken this
objections in written statement but did not file any document in
this respect that the claimant worked and discharged Managerial,
Supervisory & Administrative Duties/functions while working as
'Store Keeper'.
8. The expression "workman" is defined in Section 2
(s) of the Industrial Disputes Act as -
"workman" means any person (including an apprentice)
employed in any industry to do any manual, unskilled or skilled,
technical, operational, clerical or supervisory work for hire or
reward, whether the terms of employment be express or implied
and for the purposes of any proceeding under this Act in relation
to an industrial dispute, includes any such person who has been
dismissed, discharged or retrenched in connection with, or as a
consequence of, that dispute, or whose dismissal, discharge or
retrenchment has led to that dispute, but does not include any
such person -
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the
Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of
1957); or
(ii) who is employed in the police service or as an officer or
LID No.113/2018
Hemant Kumar v. Krishna Prakash Enterprises
Page 6 of 23
other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative
capacity; or
(iv) who, being employed in a supervisory capacity, draws
wages exceeding ten thousand rupees 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."
The definition of "workman" as contained in Section 2
(s) of the Industrial Disputes Act, 1947 is exhaustive. The
position in law as it obtains today is that a person to be a
workman under the Industrial Disputes Act, 1947 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 such person is not covered by either of the
four exceptions to the definition. Even if a person does not
perform managerial / supervisory or administrative duties, with a
view to hold that such person is a workman, it must be
established that such person performs skilled or unskilled,
manual, supervisory, technical, operational or clerical work for
hire or reward. The question as to whether an employee is a
"workman" as defined under section 2 (s) of the Industrial
Disputes Act, 1947 has to be determined with reference to his
dominant/principal/main/ substantial nature of duties and
functions. Such question is required to be determined with
reference to the facts and circumstances of each case and the
material on record. It is not possible to lay down any strait jacket
formula which can be determinative of the real nature of duties
and functions being performed by an employee in all cases.
9. While interpreting this provision, the Constitution
Bench of the Supreme Court in H.R. Adyanthaya and Others Vs.
LID No.113/2018
Hemant Kumar v. Krishna Prakash Enterprises
Page 7 of 23
Sandoz (India) Ltd. and Others, 1994 (5) SCC 737 held that an
employee is a workman under the Act if he is employed to do the
work of any of the categories, viz., manual, unskilled, skilled,
technical, operational, clerical or supervisory. In the other words,
if the work of a person did not fall within any of the categories of
manual, clerical, supervisory or technical, he would not qualify to
be workman.
10. Similarly, in S.K. Maini Vs. M/s Carona Sahu Co.
Ltd., (1994) 3 SCC 510, the Supreme Court held in paragraph 9:
"After giving our careful consideration to the facts and
circumstances of the case and the submissions made by the
learned counsel for the parties, it appears to us that whether
or not an employee is a workman under Section 2(s) of the
Industrial Disputes Act is required to be determined with
reference to his principal nature of duties and functions. Such
question is required to be determined with reference to the
facts and circumstances of the case and materials on record
and it is not possible to lay down any straitjacket formula
which can decide the dispute as to the real nature of duties
and functions being performed by an employee in all cases.
When an employee is employed to do the types of work
enumerated in the definition of workman under Section 2(s),
there is hardly any difficulty in treating him as a workman
under the appropriate classification but in the complexity of
industrial or commercial organizations quite a large number
of employees are often required to do more than one kind of
work. In such cases, it becomes necessary to determine under
which classification the employee will fall for the purpose of
deciding whether he comes within the definition of workman
or goes out of it."
Thereafter, in the same paragraph, it was said:
"...the designation of an employee is not of much importance and
what is important is the nature of duties being performed by the
employee. The determinative factor is the main duties of the
employee concerned and not some works incidentally done. In
other words, what is, in substance, the work which employee
does or what in substance he is employed to do. Viewed from
this angle, if the employee is mainly doing supervisory work but
incidentally or for a fraction of time also does some manual or
clerical work, the employee should be held to be doing
LID No.113/2018
Hemant Kumar v. Krishna Prakash Enterprises
Page 8 of 23
supervisory works. Conversely, if the main work is of manual,
clerical or of technical nature, the mere fact that some
supervisory or other work is also done by the employee
incidentally or only a small fraction of working time is devoted
to some supervisory works, the employee will come within the
purview of 'workman' as Section 2(s) of the Industrial Disputes
Act."
11. Given the circumstances and the facts of the present
case, it appears more apparent that the workman herein working
as Store Keeper with the management was not looking after
Managerial, Supervisory & Administrative Duties/functions. The
workman herein accordingly, falls under the definition of
'workman' within the I.D. Act. Thus Issue No.1 is decided in
favour of the workman and against the management herein. The
claimant is a workman as defined u/s 2(s) of the Industrial
Disputes Act, 1947.
Issue No.2 & 3:
(2) Whether the services of workman were terminated
illegally and/or unjustifiably by the management and if so, to
what consequential relief is he entitled for?OPW
(3) Whether the workman himself had abandoned his
job and his service were never terminated by the management?
OPM
The onus to prove the Issue no.2 was on the
workman whereas the Issue No.3 was to be proved by the
management. Both these issues shall be decided together being
interrelated.
12. The statement of claim filed by the workman along-
with defence of management has been mentioned at the outset.
The workman claimed that he worked with the management since
April, 2008 as 'Store Keeper' and his last drawn wages were
LID No.113/2018
Hemant Kumar v. Krishna Prakash Enterprises
Page 9 of 23
Rs.21,500/- p.m.; his service was illegally terminated on
10.04.2017 without paying his legal dues. The workman has
produced the relevant documents i.e. Ex.WW1/1 to Ex.WW1/8
i.e. legal demand notice issued to the management and its postal
receipt, Icard issued by the management, statement of claim
filed before Conciliation Officer etc.
The employer and employee relationship is
admitted. The only defence of the management remained that the
services of workman was never terminated rather he himself had
abandoned the services; he used to remain absent from its duties
without information unauthorizedly; he was asked several times
to join the duty but he did not resume the duties; he was involved
in misappropriation of money causing breach of trust; he was
involved in putting pressure upon the transporters and their
employees to give him commission; he was involved in the
incident of theft.
It is reiterated that the workman examined himself as
WW1 and deposed regarding the claim. The witness has also
proved the relevant documents as abovesaid. The documents
relied by the WW1 are not disputed. The witness during cross
examination deposed as under:
" I joined my duty at Adarsh Marketing in the year 2008 and
worked there till 2012 and thereafter, I joined the management
herein. Sh. P. K. Bhagat, was the owner of Adarsh Marketing.
Sh. P. K. Bhagat is the father of Sh. Mrinal Bhagat. Mrinal
Bhagat is the owner of management herein. Sh. P. K. Bhagat
has died.
I used to work as a storekeeper with the management herein.
Apart from me, there were 6/7 persons working in the store. I
was working under Mr. Deepak Pant, Store Supervisor. My
LID No.113/2018
Hemant Kumar v. Krishna Prakash Enterprises
Page 10 of 23
duty involves supervision of inward and outward stock. I used
to decide where the stock was to be kept in the store. I used to
direct the above 6/7 persons to put up the stock in the store.
These persons used to keep the stock in the store under my
guidance. I used to decide where to put up the stock in the
store.
I never complained to the Labour Department regarding the
allegations against the management regarding non issuance of
appointment letter and non compliance of the Labour Laws.
During the course of my employment, I was transferred to the
Unit of the management at C153, Bulandshaher Road,
Ghaziabad. It is wrong to suggest that I was working at the said
place at the time of my termination. No termination letter was
issued to me by the management. It is wrong to suggest that
some complaints were pending against me and when the
management initiated the disciplinary action against me, I
stopped coming on duty. It is wrong to suggest that I
abandoned my employment. I am ready to join the
management but I will join and work only at Delhi. I am not
aware that the Head Office of the management is situated in
District Ghaziabad, U.P. I had an advance of Rs.30000/ from
the management. It is correct to say that the management has
adjusted the said amount against one month notice pay.
Presently, I am working at Grocery Store, Noida Extn. It is
wrong to suggest that I am working in the said store since June,
2017. I am married and has three children. My household
expenses are about Rs.7000/ to 8000/ p.m. My all three
children are school going children. My family members and
my relatives used to help me in incurring my household
expenses. It is wrong to suggest that I abandoned my
employment. It is further wrong to suggest that I am not
entitled for any relief from the management".
The workman during his crossexamination
reiterated that he worked with the management; he denied the
suggestion that he stopped coming to duty and his services were
not terminated by the management. The management's witness
MW1 deposed regarding the contention in the written statement
vide his affidavit Ex.MW1/A. He was crossexamined and
deposed that :
LID No.113/2018
Hemant Kumar v. Krishna Prakash Enterprises
Page 11 of 23
"The present management/proprietorship was started in the year
2012. M/s. Adarsh Marketing was being looked after by my
father. I do not know when M/s. Adarsh marketing was started. I
was not looking after the work of M/s. Adarsh Marketing. It is
wrong to suggest that I looked after the working of M/s. Adarsh
marketing and I am deposing falsely in this regard. M/s. Adarsh
Marketing was closed in 2018 when my father was expired. It is
wrong to suggest that the workmen worked with M/s. Adarsh
Marketing before 2012. Sunil Kumar Dwivedi is working with
management since 2015. It is wrong to suggest that Sunil Kumar
Dwivedi is working with management since May, 2012. Sunil
Kumar Dwivedi was issued appointment letter by the
management. It is wrong to suggest that no appointment letter
was issued to Sunil Kumar Dwivedi. Sunil Kumar Dwivedi was
a store keeper and his last drawn salary was Rs. 21,500/- per
month. There was no dispute with the workman Sunil Kumar
Dwivedi regarding his working till he worked with the
management. Document Ex. WW1/1 does not bears my
signature. ESI and PF facilities is applied upon the management
and the said facilities were given to the workmen. It is wrong to
suggest that no legal benefits were given to the workmen and
when they asked for the benefits, they were illegally terminated
without paying their legal dues including salary. The amount of
salary and notice pay amount was given to the workmen before
Labour Inspector. It is wrong to suggest that the notice pay was
received under protest of the workmen. It is wrong to suggest
that the workmen are entitled for compensation as no
compensation was paid to the workmen before the Labour
Inspector. The management is ready and willing to pay
compensation to the workmen as per law and also ready to take
them on duty. No letter was issued to the workman when they
allegedly absented calling them to join the duty. No show cause
notice, memo or charge-sheet was issued to the workmen nor
any domestic inquiry was conducted against them. It is wrong to
suggest that workmen are entitled for the relief as claimed in the
petition; I am deposing falsely to deny the claim. The name of
the workmen was struck off on the last day of the month of their
working with the management. No intimation was given to the
Labour Department or in any department regarding struck off
their names. It is wrong to suggest that workman Mahendra
Singh was working as Senior Executive and has no supervisory
function. Mahendera Singh used to operate computer. It is
wrong to suggest that Mahendra Singh had no power to sanction
leave of any employee nor any employee used to report him. It
is wrong to suggest that no appointment letter was issued to
Mahendra Singh.
Workman Deepak Pant was working as Supervisor. It is
wrong to suggest that Deepak Pant has no supervisory function.
It is wrong to suggest that Deepak Pant had no power to
LID No.113/2018
Hemant Kumar v. Krishna Prakash Enterprises
Page 12 of 23
sanction leave of any employee nor any employee used to report
him. It is wrong to suggest that no appointment letter was issued
to Deepak Pant and he was looking after the loading-uploading
the materials and used to assist the store keeper.
It is wrong to suggest that Workman Hemant Kumar was not
working as Supervisor rather he was store keeper. It is wrong to
suggest that Hemant Kumar has no supervisory function. It is
wrong to suggest that Hemant Kumar had no power to sanction
leave of any employee nor any employee used to report him. It
is wrong to suggest that no appointment letter was issued to
Hemant Kumar".
There is no document placed on record by the
management to show that workman was issued any notice to join
his duties when he remained absent or subsequent enquiry was
made against him. MW1 in his crossexamination admits that no
letter was issued to the workman when he allegedly absented
calling him to join the duty; no show cause notice, memo or
charge sheet was issued to the workman nor any domestic inquiry
was conducted against him.
The management in its written statement claimed
that the workman was involved in misappropriation of money
causing breach of trust; in the incident of theft and was also
involved in putting pressure upon the transporters and their
employees to give him commission. No document has been
placed or proved on record by the management to prove the said
contention. Even no FIR/complaint has been made by the
management against the workman before any Authority to prove
the contention that the workman misappropriated any fund and
was involved in any theft. No witness from the transporters/their
employees to whom the workman allegedly asked for
commission is produced or examined. The contention and claim
LID No.113/2018
Hemant Kumar v. Krishna Prakash Enterprises
Page 13 of 23
of the workman appears to be coherent.
13. There is nothing in testimony of WW1 during his
cross examination to controvert the claim. The workman
categorically proved that he worked with the management and
completed 240 days of working in the preceding year of his
termination. As noted, no inquiry has been made by the
management in the matter as well.
14. It is settled that where an employer has failed to
make an enquiry 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. It is relevant to refer the observations
of Hon'ble Supreme Court in Civil Appeal No.142/2021 titled
State of Uttarakahand and Ors. vs. Smt. Sureshwati decided on
20.01.2021. As held in the relevant para no.14 -
14. This Court has in a catena of decisions held that where an
employer has failed to make an enquiry 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. 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.
The entire matter would be open before the tribunal which will
have jurisdiction not only to go into the limited questions open to
a tribunal where domestic enquiry has been properly held (see
Indian Iron & Steel Co. v. Workmen (AIR 1958 SC 130) but also
to satisfy itself on the facts adduced before it by the employer
whether the dismissal or discharge was justified. We may in this
LID No.113/2018
Hemant Kumar v. Krishna Prakash Enterprises
Page 14 of 23
connection refer to Sana Musa Sugar Works (P) Limited v.
Shobrati Khan (AIR 1959 SC 923), Phulbari Tea Estate v.
Workmen (AIR 1959 SC 1111) and Punjab National Bank
Limited v. Workmen (AIR 1960 SC 160). These three cases were
further considered by this Court in Bharat Sugar Mills Limited
v. Jai Singh (1962) 3 SCR, 684 and reference was also made to
the decision of the Labour Appellate Tribunal in Ram Swarath
Sinha v. Belsund Sugar Co. (1954) LAC 697 . It was pointed out
that "the important effect of omission to hold an enquiry was
merely this: that the tribunal would not have to consider only
whether there was a prima facie case but would decide for itself
on the evidence adduced whether the charges have really been
made out". It is true that three of these cases, except Phulbari Tea
Estate case, were on applications under Section 23 of the
Industrial Disputes Act, 1947. But in principle we see no
difference whether the matter comes before the tribunal for
approval under Section 33 or on a reference under Section 10 of
the Industrial Disputes Act, 1947. In either case if the enquiry is
defective or if no enquiry has been held as required by Standing
Orders, the entire case would be open before the tribunal and the
employer would have to justify on facts as well that its order of
dismissal or discharge was proper. Phulbari Tea Estate
case was on a reference under Section 10, and the same principle
was applied there also, the only difference being that in that case
there was an inquiry though it was defective. A defective
enquiry in our opinion stands on the same footing as no enquiry
and in either case the tribunal would have jurisdiction to go into
the facts and the employer would have to satisfy the tribunal that
on facts the order of dismissal or discharge was proper."
Subsequently in Delhi Cloth and General Mills Co. v.
Ludh Budh Singh (1972) 1 SCC 595 this Court held that :
"(1) If no domestic enquiry had been held by the management, or
if the management makes it clear that it does not rely upon any
domestic enquiry that may have been held by it, it is entitled to
straightway adduce evidence before the Tribunal justifying its
action. The Tribunal is bound to consider that evidence so
adduced before it, on merits, and give a decision thereon. In such
a case, it is not necessary for the Tribunal to consider the validity
of the domestic enquiry as the employer himself does not rely on
it.
....
(3) When the management relies on the enquiry conducted by it, and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management, are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it LID No.113/2018 Hemant Kumar v. Krishna Prakash Enterprises Page 15 of 23 derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.
Reliance is also placed on the judgment of this Court in Workmen of Firestone Tyre & Rubber Co. of India (P) Ltd. v. The Management of Firestone Tyre & Rubber Co. of India (P) Ltd and Others. (1973) 1 SCC 813 wherein the broad principle regarding holding of the enquiry were spelt out as:
"32. From those decisions, the following principles broadly emerge:
"(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality. (3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide. (4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be LID No.113/2018 Hemant Kumar v. Krishna Prakash Enterprises Page 16 of 23 defective.
(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct. (9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation. (10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Management of Panitole Tea Estate v. Workmens, (1971) 1 SCC 742 within the judicial decision of a Labour Court or Tribunal.
..........
40. Therefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under Section 11-A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case and hold that no misconduct is proved.
41. We are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference under Section 11-A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to re- appraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, Section 11-A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry.
LID No.113/2018Hemant Kumar v. Krishna Prakash Enterprises Page 17 of 23 Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11-A."
15. It is reiterated that in this case no steps were taken by the management in respect of charge sheet and inquiry at all. Further, there is no letter or correspondence from the management to show that workman was ever asked to join the duty if he has not reported for work.
16. In view of the aforesaid discussions, it is held that the management herein has not been able to discharge its onus in support of contentions. It is duly proved from the materials on record and the testimony of the witnesses that the services of the claimant were terminated illegally/unjustifiably by the management. In view of the above discussions, the Issues no.2 is decided in favour of the workman and against the management whereas the Issue no.3 is decided against the management.
Issue no.4:
Relief
17. Ld AR for workman has argued that since the workman had been terminated illegally, he is entitled for reinstatement with full back wages. The prayer of the workman is denied by the management claiming that he is not entitled for any relief.
18. I have considered the arguments and gone through the record. It is settled law that reinstatement and back wages are LID No.113/2018 Hemant Kumar v. Krishna Prakash Enterprises Page 18 of 23 not automatic and it depends upon the facts and circumstances of each case. In Ashok Kumar Sharma Vs Oberoi Flight Services reported as AIR 2010 Supreme Court 502, Hon'ble Supreme Court while relying upon various judgments of the Hon'ble Supreme Court held that compensation in lieu of reinstatement and back wages would be appropriate. The relevant para of judgment is reproduced as under :
"8. In the case of Sita Ram v. Moti Lal Nehru Farmers Training Institute 2(2008 AIR SCW 2256) this Court considered the matter thus :
"2. JT 2008 (3) SC622.
"21. The question, which, however, falls for our consideration is as to whether the Labour Court was justified in awarding reinstatement of the appellants in service.
22. Keeping in view the period during which the services were rendered by the respondent (sic appellants); the fact that the respondent had stopped its operation of bee farming, and the sen/ices of the appellants were terminated in December 1996, we are of the opinion that it is not a fit case where the appellants could have been directed to be reinstated in service.
23. Indisputably, the Industrial Court, exercises a discretionary jurisdiction, but such discretion is required to be exercised judiciously. Relevant factors therefore were required to be taken into consideration; the nature of appointment, the period of appointment, the availability of the job, etc. should weigh with the court for determination of such an issue.
24. This Court in a large number of decisions opined that payment of adequate amount of compensation in place of a direction to be reinstated in service in cases of this nature would subserve the ends of justice. (See Jaipur Development Authority v. Ramsahai [(2006) 11 SCC 684] : (2006 AIR SCW 5963), M.P. Admn. v.
Tribhuban [(2007) 9 SCC 748] : (2007 AIR SCW 2357) and Uttaranchal Forest Development Corpn. v. M.C. Joshi [(2007) 9 SCC 353] : (2007 AIR SCW 7305).
25. Having regard to the facts and circumstances of this LID No.113/2018 Hemant Kumar v. Krishna Prakash Enterprises Page 19 of 23 case, we are of the opinion that payment of a sum of Rs. 1,00,000 to each of the appellants, would meet the ends of justice. This appeal is allowed to the aforementioned extent. In the facts and circumstances of this case, there shall be no order as to costs."
9. The afore-referred two decisions of this Court and few more decisions were considered by us in the case of Jagbir Singh v. Haryana State Agriculture Marketing Board3(2009 AIR SCW 4824) albeit in the context of retrenchment of a daily wager in violation of section 25F of Industrial Disputes Act who had worked for more than 240 days in a year and we observed thus :
3. JT 2009 (9) SCC 396."7.
It is true that earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention to the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice."
It is not necessary to multiply the decisions of this Court wherein award of compensation in lieu of reinstatement and back wages has been held to be adequate and in the interest of justice.
In light of the aforesaid legal position, the view of the High Court that monetary compensation in lieu of reinstatement of the workman would be proper cannot be said to be unjustified."
19. In case titled as Mohd. Shakir And Sunder Lal Jain Hospital, 2010 ILLJ 245 (Del) High Court of Delhi, it was held that :
"legality of dismissal/termination from service of a workman did not in itself ipso facto result in his LID No.113/2018 Hemant Kumar v. Krishna Prakash Enterprises Page 20 of 23 reinstatement. The long history of litigation and acrimony between the parties leading to trust deficit in this case was considered by the Labour Court and it had rightly concluded that reinstatement might not be appropriate remedy will justified award of compensation in lieu of the reinstatement of the workman."
20. Hon'ble Supreme Court in the matter of 'Rajasthan State Transport Corporation, Jaipur Vs Sri Phool Chand', in Civil Appeal No. 1756/2010 has reiterated that to be entitled for back wages during the pendency of proceedings, the employee should not be employed in any establishment during the pendency of such proceedings. Further if a worker had been employed during the pendency of such proceedings and had been receiving adequate remuneration, no back wages would be payable for the period of such pendency. It was further held that a worker cannot automatically be entitled to back wages and has no right to claim back wages purely on the basis that the dismissal order has been set aside. As held :
"In order to claim back wages, a worker is required to prove (by adducing evidence) that he was not gainfully employed anywhere after dismissal, and had no earnings to maintain himself and / or his family. An employer is required to prove that a worker was gainfully employed elsewhere - however the initial burden lies on the worker to substantiate his unemployment."
21. Further in 'Deepali Gundu Surwase Vs Kranti Junior Adhyapak Mahavidyalya (D.Ed) & Ors. reported as (2013) in SCC 324, Hon'ble Supreme Court held that in the case of wrongful termination of a worker, reinstatement with continuity of service and back wages was a normal rule.
LID No.113/2018Hemant Kumar v. Krishna Prakash Enterprises Page 21 of 23 However, the payment of back wages has to be determined as per the facts and circumstances of his case and cannot be automatically granted on a order of reinstatement of the worker. The worker has to specifically raise the claim for back wages as well as present supporting evidence demonstrating his unemployment. This court also set out various factors for calculating the back wages, which include, among others.
(a) the length of service of a worker ;
(b) the nature of misconduct, if any, proved against worker ; and
(c) the financial condition of employer.
22. In the present case, the workman served the management before his illegal termination on 10.04.2017. The relationship with the management will not be cordial due to the rift and prolonged litigation. Further, the workman in his cross- examination admits that presently he is working at Grocery Store, Noida Extn. Hence, in these circumstances, it would not be in the interest of justice and industrial piece to direct reinstatement and the ends of justice can be met by granting lump sum compensation. Considering the above facts, the statement of claim as filed by the workman is allowed and it is appropriate that management is directed to pay lumpsum compensation of Rs.50,000/- (Rs. Fifty Thousand only) to the workman in lieu of back wages and all other consequential benefits/dues.
23. Management is directed to pay the aforesaid amount to the workman within 30 days of publication of this award, failing which, the amount shall also be carrying an interest @ 8% per annum till the date of its realization. Award is passed LID No.113/2018 Hemant Kumar v. Krishna Prakash Enterprises Page 22 of 23 accordingly.
24. Digitally signed copy of the award be sent to the Office of the Deputy Labour Commissioner for publication as per rules. The award be also uploaded on server.
25. Judicial file be consigned to Record Room after compliance of necessary legal formalities. GORAKH Digitally signed by GORAKH NATH NATH PANDEY Date: 2022.12.09 PANDEY 14:58:30 +0530 Announced in the open court (Gorakh Nath Pandey) on 03.12.2022 Addl. District & Sessions Judge Presiding Officer Labour Court- IV Rouse Avenue District Courts.
LID No.113/2018Hemant Kumar v. Krishna Prakash Enterprises Page 23 of 23