Delhi District Court
A) 2010 Llr 641, Sh. Arunachaleswarar ... vs Its Workmen on 7 July, 2015
BEFORE THE COURT OF SHRI UMED SINGH GREWAL
POLCXVII, ROOM NO. 22: KKD COURT: DELHI
1) ID 121/10/94
Unique ID No.02402C0367032004
IN THE MATTER OF :
1) Thomson Press ( I ) Ltd.,
K9 & 13 Connaught Circus, New Delhi
2) M/s T.P. Security Printing Works,
B315, PhaseI, Okhla, New Delhi ............Managements
Versus
Its workmen
C/o Thomson Press Employees Union,
H.M.S, 29Neelam Chowk, Faridabad ...........workmen
DATE OF FILING : 23.03.1994.
ARGUMENTS CONCLUDED ON : 29.05.2015.
AWARD PASSED ON : 07.07.2015.
AND
2) ID 120/10/94
Unique ID No.02402C0367062004.
IN THE MATTER OF :
1) M/s.Thomson Press ( I ) Ltd.,
K9 & 13, Connaught Circus, New Delhi
2) M/s T.P. Security Printing Press (I) Ltd,
B315, PhaseI, Okhla, New Delhi ............Managements
Versus
Its workmen
C/o Thomson Press Employees Union,
H.M.S, 29Neelam Chowk, Faridabad ...........workmen
ID 121/10/94 & ID 120/10/94 1/54
DATE OF FILING : 12.02.1996.
ARGUMENTS CONCLUDED ON : 29.05.2015.
AWARD PASSED ON : 07.07.2015.
A W A R D
1. Vide Order No. F. 24 (3487)/93Lab./903743 dated 23.3.1994,
issued by Government of NCT of Delhi, a reference was sent to this
Court with the following terms:
" Whether the services of S/Shri Tikam Singh,
Mohan Singh Raghav, Dilasha Ram, Sone Lal and
Satish Kumar have been terminated illegally
and /or unjustifiably by the management and if so,
to what relief are they entitled and what directions
are necessary in this respect?"
2. The reference was registered as ID no. 73/94, the present
number being ID 121/10/94 ( hereinafter" Tikam Singh's case).
3. Thereafter, vide Order No. F.24(2988)94Lab/4514248 dated
21.4.94, another reference was sent by the Government of NCT of
Delhi with the following terms:
" Whether the retrenchment of the workmen whose
ID 121/10/94 & ID 120/10/94 2/54
names appear in Annexure 'A' is illegal and/or
unjustified and if so, to what relief are they
entitled and what directions are necessary in this
respect?"
Annexure " A"
1 S/Sh. Megh Raj Singh
2 S/Sh. Shiv om
3 S/Sh. Rajender Singh
4 S/Sh. Sukhbir Singh
5 S/Sh. Kanhaiya Lal
6 S/Sh. Hari Nath Singh
7 S/Sh. Satish Kumar Kapoor
8 S/Sh. Rakesh Kumar
9 S/Sh. Janardhan Parshad
10 S/Sh. Ranjeet Singh
11 S/Sh. Yudhister Rai
12 S/Sh. Ravi Dutt Tyagi
13 S/Sh. Haripal Singh
14 S/Sh. Purshottam Dass
15 S/Sh. Shyam Lal
16 S/Sh. Man Singh
4. This reference was registered as ID 1206/94, present number
being ID 120/10/94 (hereinafter " Megh Raj Singh's case).
5. Vide orders dated 30.4.97 passed separately in both the cases,
ID 121/10/94 & ID 120/10/94 3/54
both the cases were consolidated and Tikam' Singh case was treated as
the main/leading case.
6. Before consolidation, separate claims were filed by all the five
workmen in Tikam Singh's case and by all the sixteen workmen in the
Megh Raj Singh's case, However, vide order dated 27.10.95 passed in
Megh Raj Singh's case, it was held that only one claim should have
been filed as there is only one reference order and accordingly filing of
one composite statement of claim was directed. In compliance of the
order, one composite statement of claim was filed by all the sixteen
workmen in Megh Raj Singh's case.
7. During the pendency of the matters, workmen Megh Raj Singh,
Sh. Kanhaiya Lal and Shyam Lal ( all mentioned in Megh Raj Singh's
case) expired and their legal heirs were brought on record.
8. During the pendency of the matters, the workmen Hari Pal
Singh, Man Singh, Mohan Singh Raghav, legal heirs of workman
Kanhaiya Lal and legal heirs of workman Shyam Lal settled the matter
with the management. However, no specific orders regarding disposal
ID 121/10/94 & ID 120/10/94 4/54
of the claims of these persons were passed at the time the statements
regarding the settlement were recorded in the Court.
9. In view of the statement of workman Man Singh recorded on
23.9.99, claim of workman Man Singh is disposed of as settled. The
workman Man Singh shall, however, be bound by his statement
recorded on 23.9.99.
10. In view of separate statements of the workman Sh. Haripal
Singh, his Authorised Representative and Authorised Representative
for management recorded on 27.11.01, the claim of the workman
Sh. Haripal Singh is disposed of as settled. However, both the
parties shall be bound by the respective statements made by them or on
their behalf on 27.11.01 and also by the terms and conditions of the
compromise Ex P1 and settlement Ex P2.
11. In view of joint statement of Smt. Prema Devi ( for herself and
as guardian of minors Suresh Kumar and Mahesh) and Rajesh Kumar,
both legal heirs of deceased workman Kanhaiya Lal and separate
statement of Sh. Afaque Akhtar, Chief Manager (Personnel
ID 121/10/94 & ID 120/10/94 5/54
Administration) of the management recorded on 25.08.07, the claim of
the workman Kanhaiya Lal is also disposed of as settled. Both the
parties shall, however, be bound by their respective statements
recorded on 25.08.07 as well as by the terms and conditions of the
settlement Ex C1.
12. In view of statement of Smt. Phoolmati ( legal heir of workman
Sh. Shyam Lal) recorded on 05.3.10, the claim of the workman
Sh. Shyam Lal is disposed of as settled. However, the legal heirs of
the deceased workman Sh. Shyam Lal shall be bound by the statement
of Smt. Phoolmati recorded on 05.3.10 as well as by Memorandum of
Settlement Ex C2.
13. In view of statement workman Sh. Mohan Singh Raghav
recorded on 06.02.15, the claim of the workman Sh. Mohan Singh
Raghav is disposed of as settled. However, the workman Sh. Mohan
Singh Raghav shall be bound by his statement made on 06.02.15 and
also by the terms and conditions of memorandum of settlement Ex C3.
14. Hence the present dispute survives in respect of the remaining
ID 121/10/94 & ID 120/10/94 6/54
sixteen workmen only.
15. As noted above, separate claims were filed by all the five
workmen in Tikam Singh's case. However, the facts stated in the
claims of workmen Tikam Singh, Dilasa Ram and Satish Kumar are
virtually the same. Similarly, the claims filed by the other two
workmen in Tikam Singh's case i.e. Mohan Singh Raghav and Sh.
Sone Lal are also virtually the same, although a little different from the
facts stated in the claims of Tikam Singh, Dilasa Ram and Satish
Kumar.
16. Admitted facts are that management no.1 is a company
incorporated under the Companies Act having its registered office at
Connaught Circus, New Delhi. It is having printing presses at
Faridabad, Noida, Madras and several other places in India. The
accounts are being maintained at the registered office. All dealings
with the Sales Tax and Income Tax departments and in respect of
Import and Export matters are dealt with by the registered office. The
workers are transferable from one department to another department
and also from one place to another place. Management No.2 is a unit/
ID 121/10/94 & ID 120/10/94 7/54
division of management no.1. The workers herein were working with
the management for different durations ranging from 5 years to 11
years on different posts. There were some acts of violence at the
Faridabad press, as a result of which management no.1 declared a lock
out. An agreement dated 28.5.91 was entered into between the
management and the Thomson Press Employees Union ( hereinafter
"the Union") to the effect that the entire security printing department
with 196 employees and machines shall be shifted to Okhla, New
Delhi. On 08.06.91, individual transfer letters were given to the
workmen herein pursuant to which they joined their duties at Okhla,
Delhi. However, all the employee so transferred, including the
workmen herein, were kept idle and were never given any job. Vide
separate letters dated 25.2.92, the management transferred the
workmen Mohan Singh Raghav and Sone Lal from Okhla to Madras
asking them to join their duties at Madras w.e.f 29.2.92. The
management laid off the employees at Okhla, Delhi w.e.f 12.3.92.
Both Mohan Singh Raghav and Sone Lal did not join their duties at
Madras: Vide letter dated 20.05.92, all the employees at Okhla were
retrenched with immediate effect. Subsequently, the factory at Okhla
was closed.
ID 121/10/94 & ID 120/10/94 8/54
17. The case of the workmen in the claim is that the management
wanted to break the Union. It had no intention to start security printing
works at Okhla. It only wanted to get rid of 196 employees through the
transfer device which was not genuine and that is why the transferred
employees were kept idle despite repeated reminders by them. Not
only this, the management adopted the policy of pick and choose for
the transfer. Only the employees who disagreed with the management
to join another Union ( INTUC) patronised by it, were transferred to
Okhla. Even the employees who later agreed with the management
were transferred back from Okhla to Faridabad. On 26.2.92, the
workmen Sone Lal and Mohan Singh Raghav gave separate
representations to the management requesting to withdraw their
transfer but the management refused to receive the same and also
refused to allow them duties. Hence, the representations were sent by
them to the management by registered post on 27.2.92. Even
thereafter, both of them continued to go to the management for their
duties but were not allowed by the management. The termination of
the services of workmen Sone Lal and Mohan Singh Raghav was
without any reason or notice pay or service compensation, in violation
of Section 25 F of the Industrial Disputes Act ( hereinafter " the Act").
ID 121/10/94 & ID 120/10/94 9/54
Hence, the termination is illegal. They both gave separate demand
notices dated 25.3.92 to the management and a second demand notice
dated 18.8.92. The second demand notice was refused by the
management. The lay off as well as retrenchment have been effected
without any permission of the Government and, thus, are in violation
of Sections 25 M and 25 N of the Act . The presses at Faridabad and
Okhla have functional integrity. However, no seniority list was
displayed by the management before the retrenchment. The
management did not offer the retrenchment compensation at the time
of serving retrenchment notice. However, some of the workmen have
received the cheque but the same is no bar to raise the present dispute.
The management was bound to ask the workmen to return back i.e to
transfer them back to Faridabad, which was not done. The workmen
have not been able to get gainful employment and are unemployed.
The closure of the factory is also illegal being in violation of Section
25 O of the Act. The workmen have sought reinstatement with
continuity of service and all attending benefits from the date of
retrenchment.
18. The management has contested the claim by filing separate
ID 121/10/94 & ID 120/10/94 10/54
written statement in Tikam Singh's case and a joint written statement
in Megh Raj Singh's case, although the written statements in respect of
Mohan Singh Raghav and Sone Lal are virtually the same. Similarly
the written statements in respect of Tikam Singh, Dilasa Ram and
Satish Kumar are also virtually the same. As preliminary objections, it
is submitted that the reference sent by Secretary Labour, Delhi
Administration is bad in law as the appropriate Government in respect
of Delhi ( a union territory) is the Central Government and not the
State Government. The reference is bad in law as the dispute has not
been espoused as required under the law. The case actually is that of
retrenchment and not that of termination. Hence, in view of Section 7
A read with schedule III of the Act, this Court has no jurisdiction to
decide the present dispute. On merits, it is submitted that all the
printing presses of the management are separate and independent units
having their own Managers and are controlled by the Manager
Incharge of the same and have no functional integrity with each other.
Obviously, for the limited company (which the management no.1
admittedly is), there will necessarily be only one account and one
balance sheet. Again, with regard to Sales Tax, Income Tax
department and Import and Export Department, necessarily, it is the
ID 121/10/94 & ID 120/10/94 11/54
company which is to deal in the subjects as the independent units have
no locusstandi before such authorities. The Delhi unit and Faridabad
unit are separate units having separate accounts, separate insurance and
separate standing orders. The Faridabad unit is registered under the
Haryana Factory Rules under the Factories Act, 1948. There was no
interdependence or functional integrity of any type of between one
unit or the other and one could exist independently without the other.
On account of violence at Faridabad Press, the management had more
or less lost the job of security printing works. When the transfers were
made under the aforesaid agreement from Faridabad to Okhla, it was
thought by the management that probably due to a new
location/situation, the printing of lottery ticket work may possibly be
revived at Delhi. However, that thinking of the management did not
materialize. Inspite of this, the management continued with the
establishment at Okhla for nearly one year to try and see if it can get
the security printing jobs at Okhla as a new unit. In order to utilize the
idle manpower at Okhla, it was decided to transfer the employees back
to Faridabad and close the unit at Okhla. The employees stationed at
Okhla were, therefore, offered alternate jobs from time to time in
different departments at Faridabad where they could have been trained
ID 121/10/94 & ID 120/10/94 12/54
in that work, but due to the adamant, hardened and mischievous
attitude of the workmen herein, they refused to accept the alternate
offers. Those who accepted the offer, have been transferred to
Faridabad. The total strength of the Thomson Press ( India) Ltd is not
relevant and what is relevant is the number of employees employed at
Delhi where the retrenchment has been effected. On the date of
retrenchment, only 38 persons were employed at Delhi Unit. Since all
the remaining employees were retrenched, no question of preparing
any seniority list arose. Some of the workmen did not accept the
cheque towards retrenchment compensation/ notice. Hence, the
management sent the same to their respective permanent addresses
available in the records. Some of them have also encashed the cheques.
Further, since the press at Okhla has been closed, the question of
reinstatement does not arise. As far as the workmen Sone Lal and
Mohan Singh Raghav are concerned, since both the workmen were
transferred to Madras, the question of them reporting for duty at
Faridabad and/or Delhi does not arise. It is correct that the demand
notice dated 18.8.92 was served upon the management. However,
Standing Order 12(d) of the management lays down that "a workman
who remains absent continuously without any prior sanction of leave,
he will be deemed to have abandoned the services of the company on
ID 121/10/94 & ID 120/10/94 13/54
his own and, accordingly, his name shall automatically stand dropped
from the muster Rolls of the company". Since the workmen did not
report for duty at Madras, in terms of the Standing Orders 12 (d), they
are deemed to have left their services and lost their lien on the same.
Therefore, the question of any action having been taken by the
management does not arise as their services automatically came to an
end. The other contents of the claim are denied by the management
who has sought answering reference in its favour.
19. In the rejoinder, it is submitted by the workmen that Delhi
Administration is the appropriate government and, hence, the reference
made by the Secretary Labour, Govt. of NCT of Delhi is correct. The
reference relates to individual worker who himself has raised the
dispute under Section 2 (a) of the Act. Hence, no espousal is required.
In the eyes of law, there is no abandonment. Moreover, the
management has nowhere specifically stated that workmen had
intention to abandon the employment. The Thomson Press India is
very much in existence. Moreover, the place of employment is very
much open. The management has set up a unit at Okhla. There is a
big factory at Faridabad from where the workmen were transferred and
ID 121/10/94 & ID 120/10/94 14/54
they are entitled to be reinstated there. The premises at Okhla is open
and working and the management is having a process house for the
purpose of printing. At the time of closure of the Okhla premises, the
entire machinery was transferred back to Faridabad/Noida where
lottery tickets, cheques, airline tickets and govt. roadways tickets are
printed. The presses are running at Noida and Faridabad where about
300 workers are working in Security Printing Department only. The
workmen were never given any offer to go back to Faridabad or any
alternate job offer nor any such offer was made before the Delhi
Administration. No reply to the demand notice of the workmen was
sent by the management. The total strength of the management is more
than 100. Hence, the retrenchment is bad as no prior permission was
sought by the management from the appropriate government. The
cheques were encashed by some of the workmen to avoid starvation.
There is no factory in the name of management no.1 at Madras. The
establishment at Okhla is very much in operation and more than 100
workers are working there. The worker is entitled to be transferred
back to the place from where he was transferred if there is no work at
the place to which he was transferred. No reply to the standing order
mentioned by the management in its written statement is required. The
ID 121/10/94 & ID 120/10/94 15/54
Delhi unit was one integral part of the management because no
separate or independent accounting is maintained, balancesheet is one
and the same, the cheques to the workers were sent from the factory at
Faridabad, all correspondence in all respects of the management
including termination, retrenchment, transfer and payment of full and
final accounts was done from Faridabad. The workers were never
employed specifically against any post in the Security Printing
Department rather they have worked on various jobs at Faridabad and
also at Delhi. The other contents of written statement are denied by the
workmen who have reiterated the contents of their claim.
20. From the pleadings of the parties, following issues were framed
on 13.03.1996 in Tikam Singh's case:
1) Whether Delhi Administration has not been
appropriate government to refer this industrial dispute
and dispute has not been rightly refer?
2) As per terms of reference.
21. Later on 14.11.1996 the following additional issues were also
framed in this case ( i.e Tikam Singh's case):
1) Whether this court has no jurisdiction to adjudicate
ID 121/10/94 & ID 120/10/94 16/54
the dispute referred in view of the provisions of
Section 7A read with the IIIrd Schedule of the
Industrial Disputes Act? OPM
2) Whether Shri Sone Lal and Mohan Singh
themselves voluntarily abandoned their services ?
OPM
3) Whether the case of Tikam Singh, Dilasha Ram and
Satish Kumar is a case of legal retrenchment from
service ? OPM
4) Whether the unit where the workmen were working
has been closed and the reference is bad in law on
this ground ? OPM
5) Whether the reference is bad in law on the ground
that the appropriate government has not taken into
account the pleadings of the parties before the
conciliation officer and whether this plea at all can
be raised before this court?
6) Whether the reference is bad on the ground that the
dispute has not been properly espoused?
22. Following issues were framed on 05.01.1996 in Megh Raj
Singh's case:
1) Whether Delhi Administration is not the appropriate
government in respect of the dispute in the present
ID 121/10/94 & ID 120/10/94 17/54
case?
2) As per terms of reference.
23. Later on 14.11.1996 the following additional issues were also
framed in this case ( i.e Megh Raj Singh's case):
1) Whether this court has no jurisdiction to
adjudicate the dispute in view of the
provisions of Section 7A read with the IIIrd
Schedule of the Industrial Disputes Act 1947.
OPM
2) Whether the workmen or any of the them is
gainfully employed ? OPM
3) Whether the Delhi Unit of the management
has been closed and if so its effect, if any ?
OPM
4) Whether the reference is bad in law on the
ground that the appropriate government has
not taken into account the pleadings of the
parties before the conciliation officer and
whether this plea at all can be raised before
this court. OPM
5) Whether the reference is bad on the ground
that the dispute has not been properly
ID 121/10/94 & ID 120/10/94 18/54
espoused ? OPM
24. In support of their case, the workmen examined one Sh. R. D.
Yadav, who was examined separately in both the cases. In addition, in
Tikam Singh's case, Tikam Singh was examined as a witness. The
other workmen in the said case (i.e. Tikam Singh's case) filed a joint
affidavit relying upon the evidence of Sh. R. D.Yadav and Sh. Tikam
Singh. Similarly, in Megh Raj Singh's case, in addition to the witness
Sh. R. D. Yadav, the workman Yudhister Rai was examined as a
witness and the other workmen in the said case filed a joint affidavit
relying upon the evidence of Sh. R.D.Yadav and Sh. Yudhister Rai.
25. The management examined two witnesses in support of its case.
MW1 is Sh. Afaque Akhtar, Chief Manager ( Pers. & Admn.) of
management no.1 and MW2 is Sh. Rahul Rai Gupta, Private Detective.
26. Thereafter, the workmen Yudhister Rai and Satish Kumar
Kapoor ( both in the Megh Raj Singh's case) filed their separate
affidavits in rebuttal to the evidence of MW2 Sh. Rahul Rai Gupta,
Private Detective.
ID 121/10/94 & ID 120/10/94 19/54
27. Separate written arguments were filed by both the parties.
28. The workmen have relied upon the following authorities in
support of their contentions:
a) 2010 LLR 641, Sh. Arunachaleswarar Mills vs
Joint Secretary, Department of Industries and
Labour Secretariat, Fort St. George, & Ors,
b) 2003 I LLJ, Alumina Mazdoor Sangh & Others
vs Ratna Construction Co. and Others,
c) 1994 LLR 199 Carona Sahu Co. Ltd vs Abdul
Karim Munakhan ( Mr.) & Ors,
d) 2006 (3) Apex Court Judgments 753 ( S.C.), State
of Haryana vs Dilbagh Singh,
e) 2005 (2) Apex Court Judgments 57 ( S.C.),
General Manager, Haryana Roadways vs
Rudhan Singh,
f) AIR 2005, SC 851, M/s Maruti Udyog Ltd vs Ram
Lal and others,
g) AIR 2005 SC 392, Om Hemrajani vs State of U.
P. and anr,
h) AIR 2004 SC 2401, Engineering Kamgar Union
vs M/s. Electro Steels Castings Ltd and anr,
i) (2003)4 SCC 27, S M Nilajkar and Others vs
Telecom District Manager, Karnataka,
j) (2000) 3 SCC 588, Nar Singh Pal vs UOI and
others,
k) AIR 1960 SC 610 The State of Bombay and others
ID 121/10/94 & ID 120/10/94 20/54
vs The Hospital Mazdoor Sabha and others,
l) 1968 ( IV) DLT 130 M/s Payen and Talbros Ltd
vs Hansraj,
m) 1994 LLR 369 State of Rajasthan vs Usha
lokwani.
29. The management has relied upon the following authorities in
support of their contentions:
a) AIR 1966 Punjab 354, Gondhara Transport Co.
( Pvt) Ltd vs State of Punjab and others,
b) 1943 King's Bench Division 462, Hodge vs Ultra
Electric, Limited,
c) AIR 1936 Privy Council 253 (2), Nazir Ahmad vs
King Emperor,
d) 2014 LLR 12, Scooters India Lt vs Govt. of N.C.T.
of Delhi and Anr. ,
e) 2013 LLR 1009, Assistant Engineer, Rajasthan
State Agriculture Marketing Bord, SubDivision,
Kota vs Mohan Lal,
f) Civil Appeal No. 3838 of 2010, Special Land
Acquistion Officer vs Karigowda & Ors,
g) 2008 (116) FLR 362, M/s. Honda Ram Chander
vs Yeshwant Mahadev Kadam ( Dead) by LRs,
h) (2007) 9 Supreme Court Cases 194, Fazilka Coop.
Sugar Mills vs Jatinder Kumar Gupta and
another,
i) (2007) 7 SCC 366, District Red Cross Society vs
ID 121/10/94 & ID 120/10/94 21/54
Babita Arora and ors,
j) ( 2007) 2 SCC ( L & S) 992, Sukhdeo Pandey vs
UOI and anr,
k) (2005) 7 SCC 447, Rajasthan State Road
Transport Corpn. and others vs Zakir Hussain,
l) (2004) 2 SCC 193, Punjab National Bank vs
Virender Kumar Goel and Others,
m) (2003) 2 SCC 721, Bank of India and Others vs
O.P. Swarnakar and others,
n) 2001 (2) L.L.N 859, Sain Steel Products vs Naipal
Singh and others,
o) AIR 1985 SC 357, Goa Sampling Employees'
Association vs General Superintendance Co. of
India Pvt. Ltd and others,
p) AIR 1973 SC 878, Management of Hindustan
Steel Ltd vs The workmen and others,
q) AIR 1970 SC 737, workmen of Indian Express
Newspaper Private Ltd vs The Management of
Indian Express Newspaper Private Ltd,
r) AIR 1960 SC 815, Tea Districts Labour
Association, Calcutta vs Exemployees of Tea
Districts Labour Association and another,
30. I have gone through the record including the written arguments
filed by both the parties as well as the authorities relied upon by them.
31. My issuewise findings are as follows:
ID 121/10/94 & ID 120/10/94 22/54
ADDITIONAL ISSUE NO.6 in Tikam Singh's case and Additional
Issue no.5 in Megh Raj Singh's case:
Whether the reference is bad on the ground that the dispute has
not been properly espoused? OPM
32. The burden of proving this issue was on the management.
33. In the written arguments dated 29.7.13 filed by the management,
it is submitted by the management that the management does not press
the issue of espousel.
ISSUE No.1 in both cases:
Whether Delhi Administration is not the appropriate government
in respect of the dispute in the reference?
34. As noted above, the present references have been sent by the
Govt. of NCT of Delhi. In its written arguments, it is contended by the
management relying upon Goa Sampling Employees Association
(supra) that the appropriate government in respect of a dispute in a
Union Territory is the Central Govt and that a reference can be validly
made in respect of a dispute arising in a Union Territory by a Central
ID 121/10/94 & ID 120/10/94 23/54
Govt only and that since the references in the present case have not
been sent by the Central Govt, the references themselves are bad.
35. Significantly, the workmen have not submitted a single word in
respect of this issue in their written arguments or even in their written
arguments filed in rebuttal to the written arguments of the
management.
36. I have carefully perused the authority relied upon by the
management. I am of the view that the contention of Ld ARM is
misplaced. It has been held in the authority as follows:
"17. The High Court clearly fell into an error when it
observed that the inclusive definition of the expression
'State Government' does not necessarily enlarge the scope
of the expression, but may occasionally point to the
contrary. Let us assume it to be so without deciding it.
But where the High Court fell into the error was when it
held that the President representing the Central
Government and the Administrator, and appointee of the
President and subject to all orders of the President
constitute two different governments for a Union
Territory. The position, the power, the duties and
functions of the Administrator in relation to the President
have been overlooked. On a conspectus of the relevant
provision of the Constitution and the 1963 Act, it clearly
ID 121/10/94 & ID 120/10/94 24/54
transpires that the concept of State Government is foreign
to the administration of Union Territory and Article 239
provides that every Union Territory is to be administered
by the President. The President may act through an
administrator appointed by him. Administrator is thus
the delegate of the President. His position is wholly
different from that of a Governor of a State.
Administrator can differ with his Minister and he must
then obtain the orders of the President meaning thereby
of the Central Government. Therefore, at any rate the
administrator of Union Territory does not qualify for the
description of a State Government. Therefore, the Central
Government is the appropriate Government."
( Underlining by me)
37. I am of the view that instead of laying down that the State
Government has no authority to make reference in respect of a dispute
arising in a Union Territory, what the Hon'ble Supreme Court has held
is that in the case of Union Territory, there is only one government i.e
Central Govt and there is no State Govt and in this view of the matter,
the Hon'ble Supreme Court in that authority held that the reference
made in that case by the Central Govt was valid.
38. This view of mine gets support from the judgment of Hon'ble
Delhi High Court in NBCC Ltd vs M.K. Jain and Ors, 1981 LAB.
ID 121/10/94 & ID 120/10/94 25/54
I.C.62 wherein it has been held as follows:
".....In the case of Union Territory, therefore, the
Central and State Governments merge and it is
immaterial whether an order of reference is made by one
or the other....."
39. It is clear from this authority that in case of Union Territory, any
order of reference, whether made by Central Govt or by the State Govt,
is valid. I am of the view that the authority is squarely applicable to the
facts of the present case.
40. In view of the above discussion, it is held that the present
references sent by the Govt. of NCT of Delhi are valid. The issue is,
accordingly, decided in favour of the workmen and against the
management.
ADDITIONAL ISSUE NO.1 IN BOTH THE CASES
Whether this Court has no jurisdiction to adjudicate the dispute in
view of provisions of Section 7A read with the IIIrd Schedule of the
Industrial Disputes Act 1947?
41. The burden of proving this issue was on the management.
ID 121/10/94 & ID 120/10/94 26/54
42. It is contended in the written arguments of the management that
the jurisdiction of the Labour Court is confined to the matters specified
in IInd schedule of the Act only. It does not extend to the matters
specified in the IIIrd schedule. It is submitted that entry no. 10 of
schedule III pertains to "retrenchment of workman and closure of
establishment". The contention of the management is that in the
present case, the retrenchment was a consequence of closure of the
establishment and, thus, the matter falls in the IIIrd schedule and, thus,
was exclusively triable by the Industrial Tribunal.
43. In their written arguments, the workmen have, again, not stated
anything in respect of this issue.
44. It is pertinent to mention here that the terms of reference in
Megh Raj Singh's case is specifically regarding the "retrenchment" of
the workmen. As noted above, it is the admitted case of the parties that
the factory at Okhla has been closed. Similarly, although in Tikam
Singh's case, the terms of reference pertain to the "termination" of the
services of the workmen, it is the case of the workmen, except Mohan
Singh Raghav and Sone Lal, themselves in their respective claims
ID 121/10/94 & ID 120/10/94 27/54
particularly the prayer made therein where the workmen have sought
the benefits from the date of "retrenchment" that their case is of
retrenchment only and not termination.
45. However, I have found that Section10 of the Act ( relevant
portion) is as follows :
"10. Reference of disputes to Boards Courts or
Tribunal-(1) Where the appropriate Government
is of opinion that any industrial dispute exists or
is apprehended, it may at any time, by order in
writing
(a) refer the dispute to a Board for promoting a
settlement thereof; or
(b) refer any matter appearing to be connected
with or relevant to the dispute to a Court for
inquiry; or
( c) refer the dispute or any matter appearing to
be connected with, or relevant to, the dispute, if it
relates to any matter specified in the Second
Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be
connected with, or relevant to, the dispute,
whether it relates to any matter specified in the
ID 121/10/94 & ID 120/10/94 28/54
Second Schedule or the Third Schedule, to a
Tribunal for adjudication:
Provided that where the dispute relates to any matter specified
in the Third Schedule and is not likely to affect more than one hundred
workmen, the appropriate Government may, if it so thinks fit, make the
reference to a Labour Court under clause (c):"
( underlining by me)
46. It is clear from the proviso underlined by me above that the Govt
has the power to refer even the dispute falling in the third schedule to a
Labour Court in cases where the dispute is not likely to affect more
than 100 workmen. It is not the case of management that the dispute
affects more than 100 workmen. On the contrary, its case is that on the
date of retrenchment, only 38 persons were employed at Delhi, out of
whom 17 have already settled their disputes with the management and
thus the dispute remains in respect of 21 workmen ( before this Court
in these two references) only. In his crossexamination recorded on
15.7.97, WW R D Yadav admitted that " .... It is correct to suggest
that at the time of closure, there were 38 employees were remained at
Okhla unit....." . Hence, it is clear that since the dispute pertained to
less than 100 workmen only, in exercise of its powers under the
aforesaid proviso, ( although not specifically stated in the order of
ID 121/10/94 & ID 120/10/94 29/54
reference) the reference has been made to this Court i.e. a Labour
Court . Hence, it is held that this Court has the jurisdiction to entertain
and decide the present disputes and, thus, the contention of the
management in this regard is rejected. The issue is, accordingly,
decided in favour of the workmen and against the management.
ADDITIONAL ISSUE No. 4 in Tikam Singh's case and Additional
Issue no.3 in Megh Raj Singh's case.
Whether the Delhi unit of the management has been closed and if
so, its effect, if any ?
47. The burden of proving this issue was on the management.
48. In Tikam Singh's case, all the workmen except Mohan Singh
Raghav and Sone Lal, in para 9 (d) of their respective claims have
themselves claimed that the factory at Okhla, Delhi has been closed
down. In Megh Raj Singh's case, in the claim itself, the workmen have
themselves sought a declaration that the closure of a factory at Okhla
is illegal. This clearly shows that all these workman admit that the
factory at Okhla has closed down.
ID 121/10/94 & ID 120/10/94 30/54
49. As far as the workmen Sone Lal and Mohan Singh Raghav in
Tikam Singh's case are concerned, as noted above, they both have
relied upon the evidence of R D Yadav and Tikam Singh. As noted
above, the case of Tikam Singh, in his claim is that the factory at
Okhla (Delhi) has closed down. It is clear that even the workmen Sone
Lal and Mohan Singh Raghav admit that the factory at Okhla(Delhi)
has closed down. Even otherwise, in his crossexamination recorded
on 15.7.97, WW R D Yadav admitted that ".... It is correct that the
Delhi unit was closed on 20.5.92".
50. In view of the above discussion it is held that the factory at
Okhla (Delhi) has closed down. This part of the issue is, accordingly,
decided in favour of the management and against the workmen. The
effect of closure, if any, shall be decided later on in this award.
Additional Issue No. 2 in Megh Raj Singh's case.
Whether the workmen or any of them is gainfully employed?
51. At the time of framing of issues the burden of proving this fact
was placed on the management. I am of the view that the initial burden
of proving that the workman is unemployed despite his efforts is on the
ID 121/10/94 & ID 120/10/94 31/54
workman and only after this burden is discharged by the workman, the
onus shifts to the management.
52. As noted above, the workmen in Tikam Singh's case relied upon
the evidence of R.D. Yadav and Tikam Singh. In para No. 8 of his
affidavit in evidence, Tikam Singh deposed that he and his colleagues
are unemployed. To the same effect is the deposition of R.D. Yadav in
para No. 8. To the same effect is the evidence of R.D. Yadav and
Yudhisthar Rai in Megh Raj Singh's case. MW1 did not say a single
word in both cases regarding gainful employment of the workmen.
Management examined Mr. Rahul Rai Gupta as MW2, who is
running a private detective agency in the name of M/s. Secret Watch
Detective Pvt. Ltd. He enquired into the employment of Ravi Dutt
Tyagi, Ranjit Singh, Sukhbir Singh, Rajinder Singh, Satish Kumar,
Purshottam Dass, Shiv Om and Janaradhan Prasad. It is mentioned in
report in respect of workman Satish Kumar that he was found working
in a factory M/s. Garg Metal Industries, Sector 3, Tigaon Road, Near
SRS Value Bazar, Ballabgarh, Faridabad. The said factory was dealing
in plastic dana, bags and sheets and was owned by a person resident of
village Tanther. The factory was famous by the name of Ram Dairy or
ID 121/10/94 & ID 120/10/94 32/54
sarpanch ki factory. The secret agency contacted the owner, who told
them that Satish Kumar was working with him for over a decade.
Thereafter, they talked to Satish Kumar and audio video graphed him.
He told the agency that he was working in the factory for the last 16
years and his monthly salary was Rs.8,000/.
Regarding Purshottam Das, it is stated that he is agent of LIC.
He leaves for job in the morning at about 9.30 and returns home at 7.30
p.m. His office is located in State Bank Complex, Chawala Colony,
Ballabhgarh, Code of his agentship has been described as 0016812J.
About Shiv Om, it is deposed that he was audio video graphed
in which he admitted that he was engaged in the cultivation of
agricultural land.
Report about Janardhan Prasad is that he was working as an
electrician for quite some time at "Jyoti Trading Corporation" located
at 1/43 A, NIT, Faridabad121001. The shop was owned by Mr. M.L.
Kapoor whose mobile number was 9213364054. He was earning Rs.
8,000/ per month. He was also audio video graphed in which he
admitted that he was working as an electrician.
In this way, the management has discharged onus of proof that
Satish Kumar, Pursottam Das, Shiv Om and Janaradhan Prasad were
gainfully employed after termination of their services.
ID 121/10/94 & ID 120/10/94 33/54
53. Regarding other claimants, the management did not examine any
other witness. It is not in dispute that workmen are residing in NCR.
After termination of their services, they are running their household.
In this portion of the country, there is no dearth of employment. At
the most, it can be said that their terms of employment and
remuneration may not be so attractive as were when they were
employed with the management.
ADDITIONAL ISSUE No.5 in Tikam Singh's case and
ADDITIONAL ISSUE no.4 in Megh Raj Singh's case:
Whether the reference is bad in law on the ground that the
appropriate government has not taken into account the pleadings of
the parties before the conciliation officer and whether this plea at all
can be raised before this Court. OPM
54. The burden of proving this issue was on the management. In the
written arguments of the management nothing has been stated by the
management in respect of this issue. Accordingly, the issue is liable to
be decided as not pressed by the management. Even the workmen
have also not stated a single word in respect of the issue in their written
ID 121/10/94 & ID 120/10/94 34/54
arguments. Even otherwise, neither party relied upon any pleadings of
the parties before the Conciliation Officer in its respective evidence.
Hence, the issue is decided in favour of the workmen and against the
management.
ADDITIONAL ISSUE No.2 in Tikam Singh's case:
Whether Shri Sone Lal and Mohan Singh themselves voluntarily
abandoned their services? OPM
55. As noted above, it is not disputed between that both these
workmen were transferred by the management to Madras Unit and that
neither of them joined his duties at Madras. As noted above, in its
written statement the management has relied upon Standing Order 12
(d) to contend that since both these workmen did not join their duties at
Madras and were, therefore, absent continuously and without any prior
sanction of leave, they are deemed to have abandoned the services of
the management on their own and, thus, their names automatically
stood dropped from the muster Rolls of the management. In their
separate rejoinders both these workmen have stated that no reply to the
Standing Order mentioned by the management is required. It is clear
that both these workmen admit that Standing Order 12 (d) of the
ID 121/10/94 & ID 120/10/94 35/54
management provides contended by the management. It is pertinent to
mention here that in their entire respective claims neither of these
workmen have challenged the Standing Order on any ground much less
on the ground that they violate principles of natural justice. Since it is
admitted by the workmen that the Standing Order as contended by the
management exits, it is clear the action of the management under the
said Standing Order cannot be stated to be illegal or unjustified. Even
otherwise, as noted above both these workmen relied upon the
evidence of the workmen Tikam Singh and R D Yadav in support of
their case. Neither R D Yadav nor Tikam Singh stated anything about
these two persons in their respective affidavits filed as examinationin
chief.
56. In 2003 ( 98) FLR 261, Tin Box Company Vs Inderjit Singh,
it has been held as follows:
"4. He has also placed a decision of the Allabad High
Court in Airtech Private Ltd. v. State of Uttar Pradesh
and others, wherein a similar fact situation had arisen. In
the said decision, it has been observed that the statement
of claim supported by the affidavit of the workman
constitute the preliminary evidence and it is upon the
Management / employer to controvert the same and if not
so controverted then nothing further needs to be proved
ID 121/10/94 & ID 120/10/94 36/54
and done by the workman. However, the primary
responsibility of establishing his case rests on the
workman. And in that case, the Allahabad High Court
held that the Labour Court had patently erred in holding
that the burden of proof lay upon the employers. It
further held that the obligation to lead evidence to
establish an allegation made by a party is on the party
making the allegation. The test would be, who would fail
if no evidence is led. The party making the allegation and
seeking redressal must seek an opportunity to lead
evidence. A similar view was taken by the Division Bench
of the said Allahabad High Court in the case of V.K. Raj
Industries v. Labour Court and others.
5. Agreeing with the view taken in the said decision of the
Allahabad High Court, I hold that the impugned
orders dated 22nd February, 1989 passed by the Labour
Court asking the petitioner to lead evidence first cannot
be sustained in law an, I accordingly quash the same. The
workman is to lead evidence first as it is he who has to
establish his allegations. The matter is remanded to the
Labour Court for adjudication as per provisions of law. It
is made clear that this Court has not expressed its view on
the merits of the reference. In these circumstances there
shall be no order as to costs."
57. It is clear from the authority the initial burden of proving his
case was on the workman.
ID 121/10/94 & ID 120/10/94 37/54
58. It is clear that no evidence has been led by or on behalf of these
two workmen. Hence, it is held that the workman Sone Lal
abandoned his services on his own. The issue is, accordingly, decided
in favour of the management and against Sone Lal. This issue is not
required to be decided in respect of Mohan Singh Raghav as
management has settled the dispute with him consequent to which
settlement award has already been passed.
Whether the closure of unit at Okhla is justified?
59. Ld. ARW argued that management was running several factories
at Faridabad Okhla and other places in India. The strength of the
workmen in Faridabad factory alone is more than 1000. Only one
factory located at Okhla was closed. He further submitted that all
offices are controlled from the registered located at Connaught Place,
Delhi. The accounts are also being maintained at the registered office.
Balance sheets and other communications with the government are
made from the registered office. All dealings with the sales tax and
income tax departments and that of import and export matters are dealt
by the registered office. The workers were liable to be transferred from
one branch to other branch and from one department to other
ID 121/10/94 & ID 120/10/94 38/54
department. He submitted that strength of workers of all the factories
should be taken into account and hence provisions of Chapter VB of
the Industrial Disputes Act are applicable.
On the other hand, ld. ARM argued that provisions of
Section VA are applicable because strength of workers at Okhla office
was less than 100. He further submitted that when the claimants were
fired from the job, their number was 38.
60. In Workmen of Indian Leafs Tobacco Development Co. Ltd.
Vs. Management, AIR 1970, SC 860, the Apex Court held that no
Industrial Tribunal, even in a reference u/s 10(1) (d) can interfere with
the discretion exercised by a company in the matter of closing down
some of its branches or depots. Such stoppage of part of a business is
an act of management which is entirely in discretion of the company
carrying on the business.
In Hindustan Steel Limited Vs. The Workmen and
others, 1973 3 SCC, 564, the Apex Court held that the word
"undertaking" as used in Section 25FFF seems to have been used in
its ordinary sense connoting thereby any work, enterprise, project or
business undertaking. It was further held that it was not intended to
ID 121/10/94 & ID 120/10/94 39/54
cover the entire industry or the business of the employer as was
suggested on behalf of the claimants. Even closure or stoppage of a
part of the business or activities of the employer would seem in law to
be covered by this subsection.
In Workmen Vs. Straw Board Manufacturing Company
Ltd. (1974) 4 SCC 681, the Supreme Court laid down the test of
closure of unit and observed that most important aspect in a case
relating to closure is whether one unit has such componental relation
that the closing of one must lead to the closing of the other or the one
cannot reasonably exist without the other.
61. So, the sole factor to decide functional integrity is whether
the closure of one unit would lead to the closure of other. It the case of
the claimants themselves that when the unit at Okhla was closed, other
units were still working. So, closure of units at Okhla did not lead to
the closure of other unit. Hence, it is held that there was no functional
integrity between other unit and Okhla unit. That conclusion gains
strength from Section (cc) of the Act which reads as under :
"2(cc) "Closure" means the permanent closing down of a place of
employment or par thereof".
ID 121/10/94 & ID 120/10/94 40/54
So, the Labour Court is to see the strength of the workers of the
closed unit. It the case case of the workers that about 196 persons
were transferred to Okhla unit on 10.08.1991 from Faridabad as per
triparty agreement dated 28.05.1991. Notice for lay off was displayed
on 11.03.1992 and management was closed down on 20.05.1992.
Before it, 114 workers had opted employment at other unit. So, 82
workers were left who did not want to join the other unit. Hence, the
number of workers was 82 and after termination of their services, their
strength was only 38. So, it is held that provisions of Chapter VA of
the Act are applicable and not of VB. This conclusion is further
strengthened by the following portion of judgment of District Red
Cross Society Vs. Babita Arora and Others, (2007) 7 Supreme Court
Cases 366:
"9. The question which arises for consideration is
whether the respondent is entitled to protection of
Section 25F and 25G of the Act if the establishment in which she was working itself has been closed down though certain other wings or units of the appellant District Red Cross Society, Karnal have not been closed down and are still functioning. Section 25F of the Industrial Disputes Act lays down the conditions precedent to retrenchment of workmen and it reads as under :
"25F. Conditions precedent to retrenchment of ID 121/10/94 & ID 120/10/94 41/54 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 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 on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette."
10. Section 25FFF deals with compensation to workmen in case of closing down of undertakings. The relevant part of subsection (1) of Section 25 FFF (omitting the proviso) reads as under :
"25FFF. Compensation to workmen in case of closing down of undertakings(1) where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of subsection (2), be ID 121/10/94 & ID 120/10/94 42/54 entitled to notice and compensation in accordance with the provisions of Section 25F, as if the workman had been retrenched:
Provided..."
Therefore, the legislature has treated closing down of undertakings which automatically result in termination of services of all workmen working therein differently from a retrenchment simpliciter as defined in Section 25F of the Act.
13. In Workmen Vs. Straw Board Manufacturing
Company Ltd. (1974) 4 SCC 681, this Court laid down the test of closure of unit by observing that the most important aspect in a case relating to closure is whether one unit has such componental relation that the closing of one must lead to the closing of the other or the one cannot reasonably exist without the other. Functional integrity will assume an added significance in the case of closure.
14. It appears that after the aforesaid decisions of the Supreme Court, the legislature by an amendment made in the year 1982 to the Industrial Disputes Act defined the word "closure" by adding Section 2(cc). Section 2(cc) of the Act reads as under: "2. (cc) 'closure' means the permanent closing down of a place of employment or part thereof;"
15. It is, therefore, clear that in order to attract Section 25FFF it is not necessary that the entire establishment or an employer should be closed. If a unit or part of an undertaking which has no ID 121/10/94 & ID 120/10/94 43/54 functional integrity with other units is closed, it will amount to closure within the meaning of Section 25 FFF of the Act. In J.K. Synthetics v. Rajashthan Trade Union Kendra, it has been observed that the closure need not be of the entire plant. A closure can also be of a part of the plant. In Maruti Udyog Ltd. v. Ram Lal, (2005) 2 SCC 638, it was held as under in para 21 of the Report:(SCCp.647) "21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25 F thereof is to apply only for the purpose of computation of compensation and for no other. The expression 'as if' used in Section 25FF and Section 25FFF of the 1947 ACt is of great significance. The said term merely envisages computation of compensation flowing therefrom. Both Section 25FF and Section 25 FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."ID 121/10/94 & ID 120/10/94 44/54
16. The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25 FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of all appellant Red Cross Society like Drug DeaddictioncumRehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units viz. Drug DeaddictioncumRehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from the Government and are functioning as separate entities and the mere fact that termination of services of the respondent was by way of retrenchment which was illegal on account of noncompliance with the provisions of Section 25F of the Act."
ID 121/10/94 & ID 120/10/94 45/54Effect of closure?
62. Following was held in M/s Maruti Udyog Ltd. vs. Ram Lal ( supra): "27. Applicability of Section 25 H of the 1947 Act in the case of closure of an undertaking came up also for consideration before this Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh etc. v. Presiding Officer, Labour Court, Chandigarh and others etc. (1990) 3 SCC 682), wherein a Constitution Bench in no uncertain terms held:
"....... Very briefly stated Section 25 FFF which has been already discussed lays that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of subsection (2), be entitled to notice and compensation in accordance with the provisions of Section 25 F, as if the workman had been retrenched" ( Emphasis supplied). Section 25 H provides for reemployment of retrenched workmen. In brief, it provides that where any workmen are retrenched, and the employer proposes to take into his employment any person, he shall give an opportunity to the retrenched workmen to offer themselves for reemployment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of ID 121/10/94 & ID 120/10/94 46/54 an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to workman " deemed to be retrenched" a right to claim reemployment as provided in Section 25 H. In such cases, as specifically provided in the relevant sections the workmen concerned would only be entitled to notice and compensation in accordance with Section 25 F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workmen is " as if the workmen had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of Section 25 F".
33. We have noticed hereinbefore that the consequences other than payment of compensation envisaged in Section 25 F of the 1947 Act cannot, thus, be invoked in favour of the Respondents in view of the fact that they were not in the employment of the company on the appointed day i.e. on 13.10.1990."
63. In the event of closure of enterprise, the position has been cleared by the Apex Court in S.M. Nilajkar And Others Vs. Telecom District Manager, Karnataka, (2003), 4 Supreme Court Cases 27 in the following words : "16. It is pertinent to note that in Hariprasad ID 121/10/94 & ID 120/10/94 47/54 Shivshanker Shukla V. A.D. Divelkar (7 AIR 1957 SC
121) the Supreme Court held that "retrenchment" as defined in Section 2(oo) and as used in Section 25F has no wider meaning than the ordinary accepted connotation of the word, that is, discharge of surplus labour or staff by the employer for any reason whatsoever otherwise than by way of punishment inflicted in disciplinary action. Retrenchment was held to have no application where the services of all workmen were terminated by the employer on a real and bona fide closure of business or on the business or undertaking being taken over by another employer. The abovesaid view of the law taken by the Supreme Court resulted in promulgation of the Industrial Disputes (Amendment) Ordinance, 1957 with effect from 27.04.1957, later on replaced by an Act of Parliament (Act 18 of 1957) with effect from 6.6.1957 whereby Section 25FF and Section 25 FFF were introduced in the body of the Industrial Disputes Act, 1957. Section 25 FF deals with the case of transfer of undertakings with which we are not concerned. Section 25FFF deals with closing down of undertakings. The term "undertaking" is not defined in the Act. The relevant provisions use the term "industry". Undertaking is a concept narrower than industry. An undertaking may be a part of the whole, that is, the industry. It carries a restricted meaning. (See Banglore Water Supply & Sewerage Board v. A Rajappa (1978) 2 SCC 213 and ID 121/10/94 & ID 120/10/94 48/54 Hindustan Steel Ltd. v. Workmen (1973) 3 SCC 564.) With this amendment it is clear that closure of a project or scheme by the State Government would be covered by closing down of an undertaking within the meaning of Section 25FFF. The workman would therefore be entitled to notice and compensation in accordance with the provisions of Section 25F though the right of the employer to close the undertaking for any reason whatsoever cannot be questioned..."
64. In view of the citation of Maruti Udyog Ltd. Vs. Ram Lal and Others and S.M. Nilajakar and others (supra), it is held that the workmen who had completed one year in the enterprise are entitled to the compensation as per Section 25F of the I.D. Act, in case enterprise is closed down for whatsoever reason.
ISSUE NO. 2 i.e. "As per terms of reference" of both cases and issue No. 3 of Tikam Singh's case.
65. Although in Tikam Singh's case, the terms of reference pertain to the termination of services of the workmen, it is the case of the workmen except Mohan Singh Ragav and Sone Lal in their claims, particularly the prayer made therein where they have sought the ID 121/10/94 & ID 120/10/94 49/54 benefits from the date of retrenchment. The prayer makes it clear that their case is of retrenchment only and not of termination. The terms of reference in Megh Raj Singh's case is basically regarding retrenchment of workmen.
It is the admitted position of both the parties that the factory at Okhla has been closed down. In the case of closure, the workmen who have completed one year in the job, are entitled to compensation as per Section 25F of the I.D. Act. As per Section 25F of the I.D. Act, one month's notice is to be given to the workman to be retrenched. If the notice is not given, he is to be paid wages for the period of notice.
Further, he is required to be paid retrenchment compensation which shall be equal to 15 days average pay for every completed year of continuous service.
66. It is the admitted position of the parties in cross examination that no individual notice was given to the retrenched workmen. Rather, a composite notice was pasted on the notice board of the factory. In Alumina Mazdoor Sangh and Others Vs. Ratna Construction Co. and Others, 2003ILLJ, Orissa 793, pasting of notice of retrenchment on the notice board was held not substitute for ID 121/10/94 & ID 120/10/94 50/54 the individual notice. The Hon'ble High Court of Orissa held that pay in lieu of notice was necessary. It has been pleaded by ld. ARM that notice pay plus closure compensation was given to the workmen.
Some workmen like Shiv Om, Sukhbir Singh and Hari Nath Singh have encashed the compensation cheques.
Workmen Satish Kumar Kapoor, Yudhisthar Rai, Rajinder Singh, Ranjit Singh and Purshottam Das had completed 10 years, 8 years, 5 years, 5 years and 3 years with the management. The workmen Satish Kumar, Ravi Dutt Tyagi, Dilasa Ram, Rakesh Kumar had completed 5 years, 5 years, 4 years and 3 years with the management. Compensation cheques were sent to them, but they refused to take delivery. Those cheques have been placed on the file.
Workmen Tikam Singh, Megh Raj Singh and Janaradhan Prasad had completed 8 years, 5 years and 6 years with the management. They had taken delivery of compensation of cheques, but did not get encashed. Workmen Shiv Om, Sukhbir Singh and Hari Nath Singh had completed 5 years, 5 years and 3 years with the management and they have utilized the closure compensation.
67. Workmen Satish Kumar Kapoor, Yudhisthir Rai, Rajinder ID 121/10/94 & ID 120/10/94 51/54 Singh, Ranjeet Singh, Purshottam Das, Satish Kumar, Ravi Dutt Tyagi, Dilasa Ram and Ramesh Kumar were given notice pay and closure compensation of Rs.7,410, Rs.6147, Rs.3689/, Rs.3084, Rs.
2347, Rs.3084, Rs.3,622, Rs.2958 and Rs.2352 respectively whereas they were entitled to Rs.9180, Rs.7620, Rs.4721, Rs.4630/, Rs.3,085, Rs.4630, Rs.4655, Rs.3841/ and Rs.3,090/ respectively. Workmen Tikam Singh, Megh Raj Singh and Janaradhan Prasad were sent notice pay and closure compensation of Rs.6,022/, Rs.3078/ and Rs.4224/ whereas they were entitled to Rs.7495/, Rs.4,623/ and Rs.5404/ respectively. Workmen Shiv Om, Sukhbir Singh and Hari Nath consumed / utilized the notice pay and closure compensation of Rs.
3689/, Rs.3650/ and Rs.2347/ respectively, but they were entitled to Rs.4,721/, Rs.4683/ and Rs.3,085/ respectively. Hence, above stated workmen were not given adequate compensation as per Section 25F of the I.D. Act and hence their retrenchment is illegal.
68. Ld. ARM argued that the workmen Shiv Om, Sukhbir Singh and Hari Nath Singh have utilized compensation cheques and hence they are entitled to nothing. This argument by ld. ARM has been cut to size by Nar Singh Pal Vs. Union of India and Others, ID 121/10/94 & ID 120/10/94 52/54 (2000) 3 Supreme Court Cases 588 in which it was held that acceptance of retrenchment compensation cannot validate an invalid order of termination.
Relief
69. Claimants were not given adequate compensation as per Section 25F of the I.D. Act. So, a compensation to the tune of Rs.
25,000/ per year for every year completed in the service is given to the workmen.
Grant of compensation.
70.
S. Name Date of Date of Compensation
No. joining retrenchment
01. Sh. Satish Kumar Kapoor 12.01.1982 20.05.1992 Rs.2,50,000/
02. Sh. Yudhister Rai 02.05.1984 20.05.1992 Rs.2,00,000/
03. Sh. Rajender Singh 14.09.1987 20.05.1992 Rs.1,25,000/
04. Sh. Ranjeet Singh 21.11.1987 20.05.1992 Rs.1,25,000/
05. Sh. Purshottam Dass 13.06.1989 20.05.1992 Rs.75,000/
06. Sh. Satish Kumar 28.11.1987 20.05.1992 Rs.1,25,000/
07. Sh. Ravi Dutt Tyagi 07.11.1987 20.05.1992 Rs.1,25,000/
08. Sh. Dilasha Ram 22.07.1988 20.05.1992 Rs.1,00,000/
09. Sh. Rakesh Kumar Tyagi 30.01.1989 20.05.1992 Rs.75,000/
ID 121/10/94 & ID 120/10/94 53/54
10. Sh. Tikam Singh 21.02.1984 20.05.1992 Rs.2,00,000/
11. Sh. Megh Raj Singh 05.12.1987 20.05.1992 Rs.1,25,000/
12. Sh. Janaradhan Prashad 07.06.1986 20.05.1992 Rs.1,25,000/
13. Sh. Shiv Oum 02.11.1987 20.05.1992 Rs.1,25,000/
14. Sh. Sukhvir Singh 24.10.1987 20.05.1992 Rs.1,25,000/
15. Sh. Hari Nath Singh 13.06.1989 20.05.1992 Rs.75,000/
71. The management is directed to pay the said amount to the abovesaid workmen within a month from the date of publication of this award failing which it shall be liable to pay interest @ 12 per cent per annum from today till realization. Award is passed accordingly
72. Copy of this judgment be placed in the case file of Megh Raj Singh.
73. The requisite number of copies be sent to the Govt. of NCT of Delhi for publication of the award. File be consigned to record room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 07.07.2015. POLCXVII/KKD, DELHI.
ID 121/10/94 & ID 120/10/94 54/54