Delhi District Court
Id No.607/14 Ram Kripal vs . M/S. Oriaen Security Solution Pvt. ... on 21 August, 2014
IN THE COURT OF SH. SANJEEV KUMAR,
ADDITIONAL DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER LABOUR COURT
KARKARDOOMA COURTS, DELHI
ID NO.607/14 (Old ID No. 155/13)
IN THE MATTER BETWEEN
SH. Ram Kripal Yadav S/o Sh. Hari Lal
R/o Jhuggi No.236, Kirti Nagar, 5/35,
New Delhi15
Through: All India General Mazdoor Trade Union,
170, Bal Mukund Khand ,Giri Nagar, Kalkaji,
New Delhi19 .......The workman
VERSUS
M/S. Orion Security Solution Pvt. Ltd.
5E, 1st Floor, Jaggi House, Gali No.5,
Near BSES Power Station, Shahpurjat,
New Delhi49 ......The management
Date of Institution : 07.03.2013
Date of Award
: 21.08.2014
A W A R D
The Secretary (Labour), Government of NCT of Delhi
vide its order No. F.24(404)/Lab./SD/2012/3684 dated 28.02.13
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referred an industrial dispute between the above mentioned parties to
the Labour Court with the following terms of reference :
"Whether the services of Sh. Ram Kripal Yadav S/o Sh.
Hari Lal have been terminated illegally and/or
unjustifiably by the management; if so, to what relief is
he entitled and what directions are necessary in this
respect?"
2. The brief facts are that the workman was working with
the management from 31.03.2011 on the post of 'Security Guard' and
his last drawn salary was of Rs. 8200/ per month. The workman had
been working sincerely, honestly and diligently and there was no
complaint against him by the management. The management did not
provide the legal facilities like appointment letter, leave book, weekly
or yearly leave, over time, salary increement ESI & PF etc. The
workman had demanded the above said legal facilities from the
management orally but the management did not pay the said demand.
On raising demands for above facilities, the management got annoyed
and on 14.07.2012 terminated the services of workman without any
notice. The management also did not pay earned wages for the month
of 0106.12 to 13062012. The management did not issue any
notice/chargesheet nor any domestic enquiry was conducted by the
management which violation of principles of natural justice and the
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management has violated u/s 25F of the I.D. Act, 1947.
3. It is further submitted that on 29.08.12 the workman sent
a legal demand notice through union to the management through speed
post demanding the above said legal facilities & interest with back
wages which served upon the management but the management did
not reply of the same nor paid any heed on the said demands. Despite
several efforts made by the workman the management failed to allow
the workman to resume the duty to the workman. The workman also
made complaint before labour department but all in vain as
management did not resume the workman on duty. The termination of
service of workman is illegal and unjustifiable and despite several
efforts made the workman is unemployed since the date of illegal
termination by the management.
4. The notice of the reference was sent to the management, but
despite service, none has appeared on behalf of management nor
reply to the statement of claim is filed by management, therefore, vide
order dt. 18.02.14 the management was proceeded exparte.
5. The workman led his evidence by way of affidavit
Ex.WW1/A and examined himself as WW1. He relied upon
documents i.e. Ex.WW1/1 copy of complaint to Asst. Labour
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Commissioner, Ex.WW1/2 copy of statement of claim, Ex.WW1/3 &
Ex.WW1/4 are postal receipts, Ex.WW1/5, copy demand notice and
Ex.WW1/6 is copy of Icard.
6. I have heard the arguments addressed by Counsel for the
workman and perused the file.
7. On perusal of the file, I find that the workman
corroborated the contents of statement of claim in his affidavit and
inter alia stated that he had been working with the management since
31.03.11 on the post of 'Security Guard, honestly and sincerely and his
last drawn salary was Rs.8200/ per month. He further deposed that
management had not paid earned wage for the month of 1.06.2012 to
13.06.12 and the management terminated his services of workman on
14.06.12 without issuing any notice or charge sheet. In order to prove
his contention, workman relied upon documents i.e. copy of demand
notice, copy of complaint to Asst. Labour Commissioner, copy of
statement of claim, postal receipts, Ex.WW1/5 and copy of Icard.
8. As mentioned above, the management has opted not to
appear and contest his case, not to refute the allegations or rebut the
evidence adduced by the workman. In these circumstances, there is no
reason to disbelieve the evidence adduced by the workman. The un
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rebutted evidence has established that the management terminated the
services of the workman Sh. Ram Kripal in violation of the provisions
of Section 25F of the Act and violated the principles of natural justice
in as much as he was neither issued any notice, nor offered or paid
notice pay or retrenchment compensation. The management neither
issued any charge sheet, nor any enquiry was held against him. Hence,
it is held that termination of workman is illegal.
9. Ld. AR for workman has claimed reinstatement with full
back wages. It is settled law in case of illegal termination also
reinstatement is not automatic. In Nehru Yuva Kendra Sangathan
Vs. Union of India & Ors. 2000 IV AD (Delhi) 709, Hon'ble Delhi
High Court dealt with the question of reinstatement and back wages
and observed in paragraphs 27 and 28 as under :
"27. We find from the decision of the Supreme Court
rendered in the 1970s and 1980s that reinstatement with
back wages was the norm in cases where the termination
of the services of the workman was held inoperative. The
decisions rendered in the 1990s, including the decision of
the Constitution Bench in the Punjab Land Development
and Reclamation Corporation Ltd., Chandigarh seem to
suggest that compensation in lieu of reinstatement and
back wages is now the norm. In any case, since we are
bound to follow the decision of the Constitution Bench,
we, therefore, conclude that reinstatement is not the
inevitable consequence of quashing an order of
termination; compensation can be awarded in lieu of
reinstatement and back wages.
28. Considering the facts of this case, we are
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persuaded to award compensation in lieu of reinstatement
and back wages to the
workman.............................................................................
........................................"
10. In Municipal Council, Sujanpur Vs. Surinder Kumar
2006 LLR 662, Hon'ble Supreme Court observed that the relief of
reinstatement is not automatic but is in the discretion of the court. In
paragraph 16, it was observed as under :
"Apart from the aforementioned error of law, in our
considered opinion, the Labour Court and consequently
the High Court completely misdirected themselves
insofar as they failed to take into consideration that relief
to be granted in terms of section 11A of the said Act
being discretionary in nature, a Labour Court was
required to consider the facts of each case therefor. Only
because relief by way of reinstatement with full back
wages would be lawful, it would not mean that the same
would be granted automatically".
11. In Vinod Kumar & others vs Salwan Public School &
others WP(c)5820/2011 dt.17.11.2014 Hon,ble Justice V. Kameshwar
Rao has held as under:
11.Having considered the rival submissions of the counsels for
the parties, I do not find any infirmity in the order of the Labour
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Court. It is a settled position of law that even if termination has
been held to be illegal, reinstatement with full back wages is not
to be granted automatically. The Labour Court is within its right
to mould the relief by granting a lumpsum compensation. In fact,
I note that the Labour Court has relied upon three judgments
propounding the law that the Labour Court can mould a relief by
granting lump sum compensation; the Labour Court is entitled to
grant relief having regard to facts and circumstances of each
case.
12. Further, the Supreme Court in the following judgments held
as under:
18.(a) In the matter reported as Jaipur Development Authority v.
Ramsahai, (2006) 11 SCC 684, the court has stated: "However,
even assuming that there had been a violation of Sections 25G
and 25H of the Act, but, the same by itself, in our opinion, would
not mean that the Labour Court should have passed an award of
reinstatement with entire back wages. This Court time and again
has held that the jurisdiction under Section 11A must be
exercised judiciously. The workman must be employed by State
within the meaning of Article 12 of the Constitution of India,
having regard to the doctrine of public employment. It is also
required to recruit employees in terms of the provisions of the
rules for recruitment framed by it. The respondent had not
regularly served the appellant. The job was not of perennial nature. There was nothing to show that he, when his services were terminated any person who was junior to him in the same category, had been retained. His services were dispensed with as early as in 1987. It would not be proper to direct his reinstatement ID No.607/14 Ram Kripal Vs. M/s. Oriaen Security Solution Pvt. Ltd. Page not 7 out of Page no. 10 with back wages. We, therefore, are of the opinion that interest of justice would be subserved if instead and in place of reinstatement of his services, a sum of Rs 75,000 is awarded to the respondent by way of compensation as has been done by this Court in a number of its judgments." (b) In the matter reported as Nagar Mahapalika v. State of U.P., (2006) 5 SCC 127, the court has stated:
"23. Noncompliance with the provisions of Section 6N of the U.P. Industrial Disputes Act, although, may lead to the grant of a relief of reinstatement with full back wages and continuity of service in favour of the retrenched workmen, the same would not mean that such a relief is to be granted automatically or as a matter of course.
25.....The appellant herein has clearly stated that the appointments of the respondents have been made in violation of the provisions of the Adhiniyam. An appointment made in violation of the provisions of the Adhiniyam is void. The same, however, although would not mean that the provisions of the Industrial Disputes Act are not required to be taken into consideration for the purpose of determination of the question as to whether the termination of workmen from services is legal or not but the same should have to be considered to be an important factor in the matter of grant of relief. The Municipal Corporation deals with public money. Appointments of the respondents were made for carrying out the work of assessment. Such assessments are done periodically. Their services, thus, should not have been directed to be continued despite the requirements therefor having come to an end. It, therefore, in our considered view, is not a case ID No.607/14 Ram Kripal Vs. M/s. Oriaen Security Solution Pvt. Ltd. Page not 8 out of Page no. 10 where the relief of reinstatement should have been granted." (c) In the matter reported as Talwara Coop. Credit and Service Society Ltd. v. Sushil Kumar, (2008) 9 SCC 486, the court has stated: "8. Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section 11 A of the Industrial Disputes Act, 1947 are required to strike a balance in a situation of this nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment viz. whether the appointment had been made in accordance with the statutory rules so far as a public sector undertaking is concerned, etc., should be taken into consideration." (d) In the matter reported as Jagbir Singh v. Haryana State Agriculture Mktg. Board, (2009) 15 SCC 327, the court has stated :
"...7. It is true that the 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 a 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 of the prescribed procedure.
14. An order of retrenchment passed in violation of Section 25F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of ID No.607/14 Ram Kripal Vs. M/s. Oriaen Security Solution Pvt. Ltd. Page not 9 out of Page no. 10 reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee."
12. The workman has claimed relief of reinstatement with full back wages and other consequential benefits. However, since he has only worked for a period of one and half year and hence he worked for a very short time, therefore it would not be appropriate to grant reinstatement to workman. Therefore, considering the facts and circumstances, I grant a compensation of Rs.40,000/(Forty Thousand) as retrenchment compensation in lieu of reinstatement and back wages and all other consequential relief. Award is passed accordingly.
11. Copy of award be sent to the Secretary Labour, Govt. of NCT, Delhi for publication as per rules.
File be consigned to Record Room.
Announced in the Open Court on this 21st August, 2014 (Sanjeev Kumar) Presiding Officer, Labour Court, Karkardooma, Delhi.
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