Delhi District Court
Through vs Sh. Rajiv Sehgal on 15 November, 2014
IN THE COURT OF SHRI CHANDRA SHEKHAR: POLCV:
KARKARDOOMA COURT: DELHI
DID NO : 22/09
Unique Case ID No : 02402C0777702007
In the matter of :
Sh. Hari Shankar Sharma
S/o Sh. Phoolchand Sharma
Through :
Sh. A. K. Shukla, Authorized Representative,
Chamber no. K71A, Gate no.2,
Tis Hazari Court, Delhi110054.
..........Workman
VERSUS :
M/s. Sehgal Electricals India,
290, Flyover Market, Defence Colony, New Delhi110014.
Sh. Rajiv Sehgal, Owner
PS Nizamuddin, South District.
.........Management
Date of Institution : 04.12.2007
Date of reserving award : 15.11.2014
Date of pronouncement : 15.11.2014
AWARD
The workman filed the direct claim (without reference sent by the
Government) stating that he was working with the management as Generator
Mechanic since January, 1980 and his last drawn salary was a sum of Rs.
3500/ per month. He was doing his duties diligently. The management was
earlier doing its work with the same name at 2/11, Pant Nagar, Jangpura
Extn., New Delhi. He was also working there. The management was not
providing legal benefits such as appointment letter, attendance card, leave
DID No : 22/09 1/10
book, pay slip, annual and casual leaves, weekly leaves etc. The management
was not paying overtime wages to him. The management was not providing
minimum wages. The management used to take work on Holidays also and
was not paying his earned wages for the same. He demanded the aforesaid
benefits from the management due to which management got annoyed and to
punish him management started retaining his earned wages. He demanded his
earned wages. The management obtained his signatures forcibly on blank
papers and vouchers and on 29.10.2007 terminated his services illegally
without any reasons. The management also did not pay his earned wages for
the period 01.08.2007 to 29.10.2007. He made a complaint to the Police on
30.10.2007 against the misconduct of the management. He sent a demand
notice also on 31.10.2007 through registered post and UPC but the
management did not reply. He visited the office of management for doing
work but, the management did not permit him to work. He is still ready to
work with the management. The management made allegations against him
regarding his absence by writing letters repeatedly. He went to join services
with the management but the management did not allow him to do so. He did
not leave the services of the management nor he was ever absent from his
duties. The management abused and threatened him. Therefore, he made a
complaint to the Police on 22.11.2007. He is unemployed since the date of his
illegal termination despite his efforts. He has completed the service of 240
days with the management in a preceding year from the date of his illegal
termination. In last, a request was made that direction be given to the
management to reinstate his services with continuity of service and full back
wages.
2. A notice of the aforesaid claim was sent to the management. The
management contested the same by filing written statement stating that claim
DID No : 22/09 2/10
has been filed on false and baseless facts; the workman has not come to the
court with clean hands. The management was formed in the year 1999. The
workman used to work as a temporary Helper on daily wages in between
October, 2003 to 11th October, 2007. He himself left the job. The payment
was made on the basis of number of days of actual work. The workman was in
the habit of absenting himself from his duties without any information for
months. The management denied that workman ever worked at 2/11, Pant
Nagar, Jangpura Extn., New Delhi. The management firm maintained
Attendance Register and Ledger Books regarding payments to the workmen.
The management was not required to maintain leave book, pay slip, leave
details, appointment letters etc. The management never forcibly took
signatures of the workman on any blank paper or voucher. The management
never retained earned wages of the workman. The management never
received any notice from the workman. The management never threatened or
abused the workman. The workman was gainfully employed. The workman
never worked continuously for 240 days in a year preceding to his alleged date
of illegal termination. In last, a request is made that claim filed by the
workman may be dismissed.
3. The workman filed rejoinder restressing the same facts as stated by
him in his statement of claim and controverting the facts stated by the
management and on 25.08.2008 as per pleadings of the parties, following
issues were framed for adjudication and disposal of the case :
(1) Whether workman was regularly or
temporarily employed by management? OPW
(2) Whether workman left service of his own
accord on 11.10.07?
(3)Whether alleged termination of service of
DID No : 22/09 3/10
workman was illegal and/or unjustified? OPW
(4) Relief.
4. An opportunity was given to the workman to lead workman
evidence. He examined himself as WW1/1 and exhibited his affidavit as
WW1/A and relied upon documents Ex. WW1/1 to WW1/22 and faced
crossexamination conducted by the management.
5. Thereafter, opportunity was given to the management to lead
management evidence. The management examined Sh. Rajiv Sehgal,
Proprietor as MW1, who exhibited his affidavit as MW1/A and also relied
upon documents Ex. MW1/1 to MW1/5 and also relied upon documents
marked as MarkA and MarkB and faced crossexamination conducted by the
workman.
6. I have heard submissions of both the parties on final arguments.
AR for the workman stated that the management did not produce the
attendance record despite having the same. Hence, an adverse inference may
be drawn against it. The management illegally terminated the services of the
workman without giving show cause notice, notice pay and compensation as
per section 25F of the Industrial Dispute Act, 1974. The workman was
regularly working with the management. The management never conducted
any enquiry against the workman. The workman has proved his case against
the management.
7. The AR for the management submitted that the workman was in
habit of remaining absent from his duties without intimation. He was only a
daily wager. The management was not in existence in the year 1980 and it
came into existence only in the year 1999. Therefore, the claim of the
DID No : 22/09 4/10
workman that he was working with the management since 1980 is false.
8. I have considered the submissions of both the parties and perused
the record. My finding on issues are as under:
(A) FINDINGS ON ISSUE NO.1 :
"Whether workman was regularly or
temporarily employed by management?
OPW"
The onus to prove this issue was on the workman. The workman
has stated in his statement of claim and in his affidavit that he was employed
with the management since 1980 as Generator Mechanic and his last drawn
salary was a sum of Rs. 3,500/ per month. The management has admitted in
its written statement that:
"the workman herein, worked with the
management as a temporary Helper
from October, 2003 till 11.10.2007."
The workman has stated in his claim that management was not
providing appointment letter, attendance card, leave book, payslips, annual
leave etc. Proprietor of the management, MW1 Sh. Rajiv Sehgal stated in
para no. 8 of his affidavit that:
"workman had been working as a
temporary Helper from October, 2003
on daily basis and the payment was
made to him on the basis of number of
days of actual work."
It is observed that the management was in the custody of entire
record of the service of workman but MW1 stated in his cross examination
that:
DID No : 22/09 5/10
"I have not brought the Attendance
Register of the relevant period. Vly. the
said register is not traceable."
"It is correct that before signing any
document, I usually read it."
"I read all the documents before signing
the same and filing the same in the
court."
"It is correct that document Ex.
MW1/W1 bears my signatures at
pointA. Vly. Ex. MW1/W1 is a
photocopy of my letter head."
It is observed that a perusal of document Ex. MW1/W1 shows that
letter head of the management is in photocopy but, it bears the signatures of
MW1 at pointA and the signatures are not in photocopy. A perusal of this
document also shows that MW1 has given a certificate to the workman on
02.05.2007 that:
"workman was working with the
management as a Generator Mechanic since
the last fifteen years. He is having good
character and hard working person. I wish
him to success in all fields."
It clearly shows the admission of management that workman
worked with the management regularly atleast for the last fifteen years.
Moreover, the management was in the custody of best evidence. The
management could have produced the relevant record of the workman to
show that workman was not a regular employee and he was working only on
temporary basis. It seems that it is justified to draw inference in the aforesaid
facts and circumstances that workman was not a temporary employee but, he
was regular employee of the management therefore, issue no. 1 is decided in
favour of the workman and against the management.
DID No : 22/09 6/10
(B) FINDINGS ON ISSUE NO. 2 :
"Whether workman left service of his
own accord on 11.10.07?"
The onus to prove this issue was on the management as the
management stated in its written statement that workman was in the habit of
absenting himself from his services and he had left the services of management
on 11.10.2007. However, a perusal of record shows that the management has
not filed and exhibited any record showing that the workman was absent from
his services since 11.10.2007. The management could have filed the record of
attendance of workman but, management did not file the same. The workman
has stated that management had sent letters to him to join service but, when
he went to join his services, management did not allow him to join. In the
aforesaid facts, it is apparent that the management has not proved from any
concrete documentary evidence that the workman absented from his services
since 11.10.2007 therefore, issue no. 2 cannot be decided in favour of the
management and the same is decided in favour of the workman.
(C) FINDINGS ON ISSUE NO. 3:
"Whether alleged termination of service
of workman was illegal and/or
unjustified? OPW"
The onus to prove this issue was on the workman. The workman
has stated in his statement of claim that his services were illegally terminated
by the management on 29.10.2007. The management has exhibited document
Ex. MW1/1 dated 07.11.2007 which shows that workman was absent from
11.10.2007 without any intimation; so, his services were terminated on
16.10.2007 vide letter no. nil dated 16.10.2007. Therefore, it seems that
DID No : 22/09 7/10
management had terminated the services of workman on 16.10.2007 itself.
The management has not stated in written statement that services of the
workman were terminated after issuance of show cause notice, chargesheet
and conducting of any enquiry and opportunity was given to the workman to
defend his case. The management has also not shown from the judicial record
that management complied section 25F of the Industrial Disputes Act, 1947
therefore, it seems that services of the workman were illegally terminated by
the management. Moreover, in case law titled as Appellants: Shakuntala's
Export House (P) Ltd. Vs. Respondent: Secretary (Labour) and Ors., LPA
707/2005 and CMs 5337 and 5338/2005, decided on: 15.04.2005 by the Hon'ble High Court of Delhi MANU/DE/0541/2005 it has been held that:
"What is required to be noted in the instant case is that relying on the decision of this court, the court has settled that abandonment amounts to misconduct which requires proper enquiry".
In the present case, it is crystal clear that management did not conduct any enquiry against the workman before termination of his services. Therefore, workman has proved that management illegally terminated his services hence, the issue no. 3 is also decided in his favour and against the management.
(D) FINDINGS ON ISSUE No. 4:
"Relief."
A perusal of record shows that management stated that workman was only a temporary employee and the management was paying the workman on the basis of days in a month on which he worked with the management. The document Ex. MW1/W1 issued by the management on DID No : 22/09 8/10 02.05.2007 and signed by MW1 Sh. Rajiv Sehgal at pointA, shows that MW1 has given a certificate to the workman stating that workman was working with the management as Generator Mechanic for the last fifteen years. It clearly shows that workman was working with the management since the year 1992. It was held in the case law titled as "Western India Automobiles Association Vs. Industrial Tribunal reported in MANU/FE/0005/1949" that:
"It is a settled law that an industrial tribunal has jurisdiction to direct reinstatement and in a case of wrongful dismissal, reinstatement is the normal rule."
However, there are certain exceptions to aforesaid rule and these exceptions have been recognized in various judgments passed by the Hon'ble Supreme Court of India. The reinstatement has not been considered desirable, where; there have been strained relationship between employer and employee or there is lack of trust or loss of confidence. Reinstatement is also denied when an employee has been found to be guilty of subversive activity or acting prejudicial to the interests of the industry. The Hon'ble Supreme Court in case of "Rattan Singh Vs. Union of India & Anr. MANU/SC/1746/1997" has even denied reinstatement with back wages in cases where long time has been lapsed.
It seems that in the present case a long time has been lapsed since 16.10.2007 when workman was illegally terminated by the management, therefore, it seems that it shall not be in the interest of justice to give directions to the management to reinstate his services and it seems that interest of justice shall be sub served if the workman is given adequate compensation for illegal termination of his services. The workman has stated in his evidence that he could not get work despite his best efforts and he is not DID No : 22/09 9/10 gainfully employed, he is unemployed since the date of his illegal termination. The management has not led any evidence to show that workman was gainfully employed. However, it cannot be believed that workman failed to earn anything after termination of his services. Therefore, management is directed to pay 70% of back wages to the workman since 04.12.2007 i.e, since the date of filing of claim till the date of passing of this award as compensation alongwith cost of Rs. 25,000/ towards litigation expenses within a period of one month from the date of publication of the award and if the management fails to pay the same within the said period, management is directed to pay the same with interest @ 9% p.a. till actual payment of aforesaid amount to the workman. The claim of the workman is disposed off accordingly.
A copy of this award be sent to the appropriate Government for its publications as per rules and a copy be also sent to the court of Senior Civil Judge, Saket Courts, Delhi through Ld. District and Sessions Judge, East, KKD Courts for execution of award by the concerned court or by allocating the same to some other Civil Judge working under him.
ANNOUNCED IN THE OPEN COURT (CHANDRA SHEKHAR)
On 15th November, 2014 POLCV:KKD:DELHI
DID No : 22/09 10/10