Delhi District Court
{The Requisite Details Of The vs Registered Office At on 7 August, 2023
Page 1 of 65
IN THE COURT OF MS. NAVITA KUMARI BAGHA, PRESIDING OFFICER,
LABOUR COURT07, ROUSE AVENUE DISTRICT COURT, NEW DELHI
LID No.456/2016
CNR No. DLCT130008572010
Deepak Sharma
S/o Sh. Harinarayan Sharma
R/o V.P.O. Dhanni Mahu, Distt. Bhiwani,
Haryana
{The requisite details of the Workman in compliance to judgment of Hon'ble High
Court of Delhi titled as "Director General of Works (CPWD) Vs. Laljeet Yadav &
Ors., W.P.(C) No.2540/2021, DOD 16.07.2021" are as follows:
Permanent Address of the Workman:
V.P.O. Dhanni Mahu, Tehsil - Tosham, Distt. Bhiwani, Haryana
Present Address of the Workman:
V.P.O. Dhanni Mahu, Tehsil - Tosham, Distt. Bhiwani, Haryana
Mobile Number of the Workman:
9871074321
Name and Mobile Number of the AR of the Workman:
Sh. P.S. Mohan Nair
Mob. 9818849980
Details of one of immediate family member of the Workman:
Smt. Sushma Sharma (Wife)
Mobile No. 7011476424
LID No.456/2016
Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd.
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Aadhar Card Number of the Workman:
7062 3909 4744}
............ Workman
Vs.
M/s. G4S Cash Services (India) Pvt. Ltd.
Building No.875/2 (B4142), Opposite CNG Pumping Station,
Mahipalpur, New Delhi110037
Registered Office at:
C16, Community Centre, Janakpuri,
Behind Janak Cinema, New Delhi110058
.......... Management
Date of filing of Claim : 25.08.2010
Date of passing Award : 07.08.2023
AWARD
1.The Statement of Claim U/Sec.10(4A) of Industrial Disputes Act, 1947, was filed by the Workman on 25.08.2010. The brief facts as mentioned in the Statement of Claim are as follows:
1. That the Workman had been working with the Management as Custodian since 28.10.2004 and his last drawn wages were Rs.6,000/ per month.
2. That the Group4, Falk Cash Service Pvt. Ltd. LID No.456/2016
Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 3 of 65
Karamchari Union was a registered trade union of the workers of the Management and the Workman was an active member of the Union.
3. That the Management wanted to implement antilabour policies and wanted to curtail certain existing benefits of the workers and also wanted to implement certain new conditions on the workers including their transfer from one place to another, but the Union did not agree to the same. However, for the betterment of the company, the Union agreed to certain new conditions through their letter dated 06.05.2010 and 07.05.2010. But the Union totally disagreed to the Management's proposal of transferring the workers from Delhi to other stations, though the Union agreed that any individual worker willing to go to other places was free to go wherever he chose. Since the Workman was active member of the Union and used to oppose the new agenda of the Management, the Management tried to victimize him by hook or crook.
4. That just because the Union did not agree to the LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 4 of 65
Management's arbitrary agenda, the Management put illegal lockout at its office and when the Workman went to report for duty on 12.05.2010, it was found that the office was locked and no Management personnel was present in the office and only one guard was sitting outside the office and one handwritten notice was pasted on the gate by the Management regarding immediate closing of its office. No notice or intimation was given to the workers or to the Labour Department about the closure of the office and because of illegal lockout, the Workman and other workers could not resume duty.
5. That the Union officials tried to speak to senior officials of the Management at its registered office of Janakpuri, but no one from the Management spoke to them.
6. That thereafter, the Union lodged a complaint with the Labour Authorities and when the Labour Department's officials visited the office of the Management, the office at Mahipalpur was found locked. A notice was LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 5 of 65
pasted on the gate thereby calling the Management to attend meeting with Deputy Labour Commissioner at his office at Hari Nagar.
7. That since the Management was neither lifting its illegal lockout nor allowing the Workman to resume duty, the Union wrote letters to the Management stating therein that the Workman was having key/code combination of the ATM and was willing to handover the same to the Management, but neither the Management accepted the key/code combination nor sent any responsible official to collect the same. With ulterior motives, the Management broke open some of the ATMs to put blame on the workers and the workers duly protested against the same and also informed the police about it.
8. That though the Workman and other workers were willing to handover key/combination to the responsible official of the Management, but the Management simply informed them through police to submit the key/combination with the guard sitting outside the LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 6 of 65
locked office. But since lakhs of rupees were inside the ATMs, the key/combination could not be handed over to any ordinary person like guard, etc., because if any wrong thing happened, the blame would have automatically come to the concerned workman of the machine.
9. That the Management intentionally diverted its cash business to some private contractors to put blame on the workers for loss of business, whereas the workers were always willing to work. They had urged the Management to lift out the illegal lockout and allow them to resume duty.
10. That the Workman was daily reporting for duty at his work place at Mahipalpur office, but could not resume duty because the office was lying locked. The entire scene was created by the Management against the Workman and other workers because they did not agree to the Management's 'Eight Point Agenda' dated 01.05.2010.
11. That to the surprise of Workman, he received LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 7 of 65
backdated termination letter dated 15.05.2010, posted on 20.05.2010 and delivered to his address on 14.06.2010. Neither any showcause notice or charge sheet was ever issued to him nor any inquiry was held against him. In order to get rid of senior workers and to get a stay from the Court, the Management had cooked up a story of some alleged incident of 15.05.2010, whereas the office at Mahipalpur was illegally locked on 15.05.2010 by the Management and the workers were forcibly kept out from doing their duty. In the aforesaid termination letter, the Management alleged that the company had lost confidence in him and it was not possible to conduct enquiry and that the Management was reserving its right to conduct enquiry before the appropriate forum.
Since the office was illegally locked and not functioning, hence the question of not possible to conduct enquiry, etc. was a cookedup story of the Management just to gain sympathy of the court and to project the workers as criminals.
12. That the Workman denied, the allegations made by the LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 8 of 65
Management in the termination letter, vide his reply dated 07.06.2010 and urged the Management to reinstate him in service with all consequential benefits. But despite receipt of said reply, the Management did not consider his request.
13. That thereafter the Workman served a Demand Notice dated 16.06.2010 upon the Management at its office address of Mahipalpur and Janakpuri urging the Management to reinstate him with continuity of service and full backwages. But despite receipt of said Notice, the Management did not consider his demand.
14. That on 28.05.2010, one Advocate Mr. Jitesh Pandey appeared on behalf of the Management before the Labour Officer and stated that the Management had not locked out its office, whereas the officials of the Labour Department had already personally seen that the office was locked. After completion of proceedings at Labour Office, the Union officials received telephonic message that the office at Mahipalpur and Jhandewalan were got opened and all managerial staff LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 9 of 65
and a few new recruits had joined duty and some private security personnel had also started working for the Management in place of existing regular staff. It was a clearcut act of unfair labour practices and victimization.
15. That the Workman has been unemployed since the day of illegal termination of his services and could not get any job despite best efforts made by him.
2. Notice of Statement of Claim was issued to the Management and after service of notice, Written Statement was filed by the Management on 27.02.2012, wherein the Management denied almost all the averments of the Workman made in his Statement of Claim and submitted that the Workman was working with the Management and was deployed for servicing the ATMs of the bank, to which the Management was providing services under a contract, and the Management had provided him with the key/codes combination for the respective ATMs, which were used to be changed by him from time to time as per security requirements of the bank. It was further submitted that the Workman had created obstructions in the performance of duties due to which the LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 10 of 65
work of replenishment of ATMs got suffered, as a result of which the bank instructed the Management to handover the key/codes, but despite asking of the Management, the Workman refused to handover the key/codes combination and possession of respective ATMs to the bank and held the company (Management) and the bank to ransom, which resulted in taking strict action by the bank against the Company/Management. It was further submitted that since the Workman did not handover the key/codes combination and possession of ATMs, the bank was forced to break open the locks and install new locks on the said ATMs and that because of the deliberate act of Workman of not handing over the key/codes combination, not only a huge financial loss was caused to the Management but it also caused loss of reputation and business to the Management and also caused a lot of inconvenience to the banks and its customers and thus, the Management lost confidence in him and terminated his services by letter dated 15.05.2010.
3. In the Rejoinder filed by Workman to the Written Statement of Management, he denied almost all the averments of the Management and reiterated and reaffirmed the contents of his Statement of Claim. LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 11 of 65
4. Vide order dated 29.03.2012, the following issues were framed by the Ld. Predecessor Court:
1. Whether the Workman committed gross misconduct for which he was dismissed from service without holding any enquiry and if so, to what effect? OPM
2. Whether the services of the Workman were illegally and unjustifiably terminated? OPW
3. Relief.
5. In order to prove his case, the Workman has examined only one witness i.e. himself as WW1. The Management has examined three witnesses.
6. When the matter was at the stage of final arguments, an application U/O.6 R.17 CPC was filed by the Management on 28.04.2017 and the said application was allowed by the Ld. Predecessor Court vide order dated 08.05.2017. Amended Written Statement was filed by the Management on 10.07.2017 wherein para 19 was added and it was stated therein that the Workman had been working with the Management and had acquired expertise and skill in the specialized LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 12 of 65
fields of handling cash/bullions from one place to another and managing ATMs, which was the core activity of the Management and because of failure of the other workers to report for duty at the transferred place at the behest and instigation of the Workman, the Management could not continue providing specialized services to its clients and the contract with the clients got terminated. It was further stated that the operation of the Management got gradually reduced and the remaining employees left the employment after taking full and final settlement as per contract of employment in March, 2015 as the operations of the company came to a standstill. It was further stated that there were no existing contact/operations in existence with the Management and the Workman was not entitled to any relief from the Management because of ceasing of its operations.
7. In the Rejoinder filed by Workman to the amended Written Statement of Management, he denied almost all the averments made in para 19 and stated that the Company/Management was having sufficient work at DelhiNCR region and several employees were still working and were on the rolls of Management.
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8. The Workman/WW1, in his affidavit of evidence i.e. Ex.WW1/A, has reiterated and reaffirmed the contents of his Statement of Claim. While reiterating the averments made in his Statement of Claim, he, in order to prove his case, has exhibited the following documents:
(i) Ex.WW1/1 - Termination Letter dated 15.05.2010.
(ii) Ex.WW1/2 - Legal Demand Notice dated 16.06.2010 sent by the Workman to Management.
(iii) Ex.WW1/3 - Two Postal Receipts dated 21.06.2010 vide which the abovesaid demand notice was sent to the Management.
(iv) Ex.WW1/4 - Copy of Management's Agenda dated 01.05.2010.
(v) Ex.WW1/5 - Copy of Letter dated 04.05.2010 written by the Labour Union to the Management.
(vi) Ex.WW1/6 - Copy of Letter of Management written to the Labour Union.
(vii) Ex.WW1/7 - Copy of Letter dated 06.05.2010 of Management written to the Labour Union.
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(viii) Ex.WW1/8 - Copy of Letter of Labour Union dated 06.05.2010.
(ix) Ex.WW1/9 - Copy of Letter of Labour Union dated 06.05.2010.
(x) Ex.WW1/10 - Copy of Letter of Labour Union dated 07.05.2010.
(xi) Ex.WW1/11 - Copy of Complaint dated 13.05.2010 of Labour Union, addressed to Deputy Labour Commissioner.
(xii) Ex.WW1/12 & Ex.WW1/13 - Copy of telegram along with BSNL receipt, sent to Managing Director of Management regarding protest against illegal Lockout.
(xiii) Ex.WW1/14 & Ex.WW1/15 - Copy of telegram along with BSNL receipt, sent to the Labour Commissioner regarding illegal lockout by the Management.
(xiv) Ex.WW1/16 & Ex.WW1/17 - Copy of telegram along with BSNL receipt, sent to Commissioner of Police, I.P. Estate, ITO, New Delhi.
(xv) Ex.WW1/18 - Copy of Complaint dated 18.05.2010, sent by the Labour Union to the Managing Director of Management Company LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 15 of 65
against the locking of offices without any notice and refusal of duty since 12.05.2010 to more than 600 workers despite their regularly reporting for duty.
(xvi) Ex.WW1/19 - Copy of Complaint dated 18.05.2010, sent by the Labour Union to the Managing Director of Management Company against the breaking open of ATM Cash Vault and Machine by the Management.
(xvii) Ex.WW1/20 - Copy of Notice dated 18.05.2010 of Labour Officer vide which the Management was directed to appear before the Deputy Labour Commissioner on 20.05.2010 in respect to complaint dated 13.05.2010 made by the Union regarding illegal lockout w.e.f. 12.05.2010.
(xviii) Ex.WW1/21 - Copy of complaint dated 27.05.2010 filed by Labour Union before the SHO, P.S. Vasant Kunj regarding not allowing the workers to resume duty by the Management.
(xix) Ex.WW1/22 - Copy of Certificate of Registration dated 14.12.2004 of Trade Union i.e. Group4 Falk Cash Service Pvt. LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 16 of 65
Ltd. Karamchari Union.
(xx) Ex.WW1/23 - Copy of Letter dated 14.03.2011 regarding submission of Annual Return of the Union for the year 2010 with list of officer bearers for the year 20112012.
(xxi) Ex.WW1/24 - Copy of list of terminated/transferred employees.
9. Workman/WW1 was crossexamined by the AR of Management and during his crossexamination, he deposed that he was working with the Management as Custodian since the year 2004 and that apart from providing replenishment in the ATMs, the work of Management included cash pickup, cash delivery, petrol pumps withdrawals and billions from the airport for delivering the same to the jewellers. He admitted it as correct that the Management used to take contract from the bank and private parties for providing the above said business. He further admitted it as correct that the aforesaid job of transfer of cash, replenishment in the ATMs, withdrawal from petrol pumps and transfer of bullions from airport to private agencies was used to be done through Custodian. He deposed that the ATMs used to belong to the respective banks and there used to be password for operating the ATMs and the LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 17 of 65
secret password was used to be given by the bank to the Management and the Management used to provide the said secret password to the Custodian. He further deposed that there used to be two passwords for operating ATM - one of which used to remain with him and the other with the second Custodian and one set of both the passwords was used to be kept with the Management for any emergency. He admitted it as correct that the ATM machine would not have been opened without entering both the passwords which were given to him and the other Custodian. He also admitted it as correct that the work used to be performed by him was work of responsibility.
10. He deposed that he had not written any letter to the Management from 01.05.2010 to 15.05.2010 for asking the Management to take back the ATM code. However, he voluntarily said that he had made a call to Mr. R.S. Chauhan, Manager (ATM) asking him to take back ATM codes from him, but they did not take back the same and afterwards he (R.S. Chauhan) stopped picking up his telephonic calls. He denied the suggestion that in between 01.05.2010 to 15.05.2010, he had kept the ATM code combinations with him and did not report for duty or that he did not provide ATM code combinations to the Management despite LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 18 of 65
repeatedly asking by the Management. He voluntarily said that he was visiting the office, but the Management did not take the ATM code combinations from him despite requests made in this regard. He admitted it as correct that he had written request letter also.
11. He admitted it as correct that there was some gate meeting of Union at the gate of Management between 01.05.2010 to 15.05.2010, but he deposed that no Dharna or Gheraow or demonstration had taken place at the gate of the Management between 01.05.2010 to 15.05.2010. He denied the suggestion that the Management had not locked out, rather he alongwith other employees had held Dharna/Gheraow/demonstration and blocked the gate and did not allow the Management to function during the period starting from 01.05.2010 to 15.05.2010. He further denied the suggestion that since he had not handed over the key/codes combination, the banks were forced to break open the locks and install new locks at the ATMs or that because of deliberate act on his part in not handing over the key/codes combination, the Management suffered huge financial loss as well as loss of reputation and business or that because of his refusal to hand over the key/codes combination of the respective ATMs, he had held the company and the bank to ransom, LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 19 of 65
which resulted in taking action by the bank against the Management. He further denied the suggestion that his termination by the Management, on account of various acts committed by him leading to loss of confidence, was legal and valid and justified. He denied the suggestion that he was gainfully employed or was looking after his family expenses. He deposed that his monthly family expenses were met by his father who used to take land on batai.
12. In Management's evidence, the Management examined three witnesses i.e. MW1 Gouranga Kar {Manager (Operations) of the Management}, MW2 Lokender Singh {Vaults Officer of the Management} and MW3 Praveen Roy {VicePresident of Management}.
13. MW1 Gouranga Kar deposed in his Affidavit of Evidence that i.e. Ex.MW1/1 that he was working as Manager (Operations) with the Management Company and was well conversant with the facts and circumstances of the case. He deposed that the Workman was working as Custodian with the Management and that the Management had deployed the Workman for servicing the ATMs of the bank to which the Management had been providing servicing under the contract and the LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 20 of 65
Management had provided him with the key/code combinations for the respective ATMs, but during the period starting from 01.05.2010, the Workman had created obstructions in the performance of duties, due to which the work of replenishment of ATMs suffered, as a result of which, the bank instructed the Management to hand over the key/codes combinations. He further deposed that the Workman was advised to provide key/codes combination of respective ATMs to the bank, but he refused to hand over the same and held the Management Company and the bank to ransom which resulted in taking strict action by the bank against the Management Company. He further deposed that since the Workman did not hand over the key/codes combination of ATMs, the bank was forced to break open the locks and install new locks on the said ATMs and that because of the deliberate act on the part of the Workman in not handing over the key/codes combination, it not only caused huge financial loss, but also caused loss of reputation and business to the Management Company. He further deposed that because of the inaction on the part of Workman, not only the Management suffered in its business and loss of reputation, it also caused a lot of inconvenience to the bank and its customers. He further LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 21 of 65
deposed that due to the acts of insubordination of the Workman in not handing over the key/codes combination, resulting in loss of business and reputation of the Management, the Management lost confidence in the Workman and because of indifferent attitude and conduct of the Workman during that period, any further instructions to him on the job could have further caused loss to its business and reputation and thus, it was decided to terminate the services of the Workman and same was done vide Letter dated 15.05.2010.
14. MW1 further deposed that the Management had neither declared any lockout nor illegally locked the gate nor pasted any handwritten notice on the gate of the Management regarding closing of its office. He deposed that the workers were free to report for work as usual, but the Workman had not reported for duty on 12.05.2010. He further deposed that neither the Workman had reported for work nor handed over the key/codes combination of the ATMs despite repeated advises given by the Management to hand over the key/codes combination of the ATMs and thus, harassed and blackmailed the Management Company and lost the confidence of the Management. He further deposed that in view of the serious acts committed by the Workman and the fact that the LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 22 of 65
Management having lost confidence in him, the Management was left with no option but to terminate his services. He further deposed that in view of the nature of acts committed by the Workman and the fact that the Management had lost confidence in him, it was not desirable or practicable to conduct domestic enquiry.
15. MW1 has exhibited the following documents in his evidence:
(i) Ex.MW1/1 - Request Letter dated 01.05.2010 written by the Management to SHO, P.S. Vasant Kunj for security of office building.
(ii) Ex.MW1/2 - Copy of Agenda of Management dated 01.05.2010.
(iii) Ex.MW1/3 - Letter of Management written to the Labour Union.
(iv) Ex.MW1/4 - Letter of Management dated 06.05.2010 written to the Labour Union.
(v) Ex.MW1/5 - Request Letter dated 12.05.2010 written by the Management to SHO, P.S. Vasant Kunj for protection of Management's property.
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(vi) Ex.MW1/6 - Complaint dated 12.05.2010 of Management addressed to Assistant Commissioner of Police, Vasant Vihar against custodians for handing over the company/bank's property.
(vii) Ex.MW1/7 - Complaint dated 15.05.2010 written by Dilip Singh, Vault Officer of Manager to SHO, P.S. Vasant Kunj regarding life threat given by Jagbir Singh and Sunil Singhal.
(viii) Ex.MW1/8 - Copy of Medical Report of Dilip Singh dated 15.05.2010.
(ix) Ex.MW1/9 - Complaint dated 15.05.2010 written by Vault Officer Devender Singh to S.H.O., P.S. Vasant Kunj regarding life threat given by Jagbir Singh and Sunil Singhal.
(x) Ex.MW1/10 - Copy of Medical Report of Devender Singh dated 15.05.2010.
(xi) Ex.MW1/11 - Copy of Complaint dated 17.05.2010 written by Vault Officer Devender Singh to Deputy Commissioner of Police, Hauz Khas against Jagbir Singh and Sunil Singhal. LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 24 of 65
(xii) Ex.MW1/12 - Copy of Letter dated 18.05.2010 of Management written to Labour Union.
(xiii) Ex.MW1/13 - Copy of Complaint U/Sec.200 Cr.P.C. filed by Devender Singh against Jagbir Singh, Sunil Singhal and Dhan Singh in the Court of ACMM, Patiala House Court.
(xiv) Ex.MW1/14 - Copy of application filed U/Sec.156(3) Cr.P.C. by Devender Singh in the Court of ACMM, Patiala House.
(xv) Ex.MW1/15 - Copy of Request Letter dated 22.05.2010 of Management addressed to SHO, P.S. Vasant Kunj for implementation of injunction as per High Court Order. (xvi) Ex.MW1/16 - Copy of Complaint dated 29.05.2010 addressed to SHO, P.S. Vasant Kunj regarding life threat given by Jai Pal Singh. (xvii) Ex.MW1/17 - Copy of Letter dated 14.06.2010 of Management addressed to SHO, P.S. Vasant Kunj regarding breach of High Court Order and threatening to burn the company premises. (xviii)Ex.MW1/18 - Copy of Letter dated 15.06.2010 of Management LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 25 of 65
addressed to SHO, P.S. Vasant Kunj regarding life threat from workers.
(xix) Ex.MW1/19 - Copy of Bill/Invoice dated 15.06.2010. (xx) Ex.MW1/20 - Copy of statement showing deductions by clients of Management.
16. The crossexamination of MW1 was conducted by the AR of Workman on two dates i.e. on 22.04.2013 and 29.07.2013. During his cross examination, he deposed that at the time of lockout, he was working with Management, but he again said that lockout had never taken place though it was a LabourManagement dispute, which used to take place. He admitted it as correct that M/s. G4S Cash Solutions (India) Pvt. Ltd. was a registered company and he was working as Manager (Operations) with the same. He further deposed that the name of M/s. G4S Cash Services (India) Pvt. Ltd. was changed to M/s. G4S Cash Solutions (India) Pvt. Ltd.
17. He further deposed that Major Vikrant Khare was the General Manager of the company during the period starting from 01.05.2010 to LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 26 of 65
20.05.2010. He further deposed that the Management was having Branch at Jhandewalan besides Branch at Mahipalpur and he was not looking after the operations of Jhandewalan Branch. He admitted it to be correct that he was unaware of the work of the Branch of Jhandewalan. He further deposed that the Management company was having work of cash in transit, ATM services and bullion services in the month of May, 2010.
18. MW1 admitted it as correct that he was not having any documentary proof in support of Para 4 of his Affidavit of Evidence. (In Para 4 of his affidavit of evidence, he had stated that the services of the Workman were terminated after he repeatedly refused to follow the lawful instructions of the Management to handover the key/codes combination resulting in loss of business and reputation of the Management company.) He denied the suggestion that no showcause notice was issued by the Management prior to termination of services of the Workman. But after seeing the Court file, he admitted that no show cause notice was filed on record. He admitted it as correct that the Management used to resolve issues pertaining to any dispute between the Management and the Workman through the Union. He further LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 27 of 65
deposed that he was not having any knowledge regarding 8Point Agenda of the Management given by the Management to the Union for their reply. He denied the suggestion that the Union and the Workman had called a gate meeting to discuss about Management's 8Point Agenda. He deposed that he was not having knowledge about the reply or proposal given by the Union to the Management's 8Point Agenda. When a specific question was put to him by the AR of Workman that since the Workman and the Union had not agreed to the proposal of 8 Point Agenda of the Management, the Management stopped Workman receiving on duty w.e.f. 13.05.2010, the MW1 replied that he did not know about the clauses of the Agenda, but it was incorrect that the Management had stopped receiving the Workman on duty w.e.f. 13.05.2010.
19. He deposed that he had attended his duty at Mahipalpur on 13.05.2010 but could not say without consulting the record as to how many workers had marked attendance at Mahipalpur on 13.05.2010. He denied the suggestion that on 13.05.2010, no official was present at the gate or that no attendance register was kept there as the Management had locked out. He further deposed that the workers were on strike on 13.05.2010 LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 28 of 65
which continued for 2025 days. He further deposed that the Management had once issued notice to the workers to call off the strike and resume duty but he was not remembering the date of said notice. He denied the suggestion that no strike call was given by the Workmen or that no such notice was issued to them.
20. He further deposed that the Management had never sent any notice to the Labour Department informing about the workers proceeding on strike. He voluntarily said that a letter dated 01.05.2010 i.e. Ex.MW1/1 was given to the concerned SHO. He deposed that he was not aware if the Management was summoned by the Labour Department on the complaint of the Union regarding illegal lockout or that a case pertaining to illegal lockout was pending before the Court against the Management. He denied the suggestion that the Custodians wanted to deliver Key/Codes Combinations to the Management in the presence of I.O. of P.S. Vasant Kunj, but the Management did not intentionally collect the same because they wanted to implicate the Workman in false cases. He admitted it correct that the Management had not registered any case against the Custodians regarding the refusal of handing over of Key/Codes Combinations. He deposed that the entire Key/Codes LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 29 of 65
Combinations were broken by the Management company in the presence of bank staff who installed the fresh machines. However, he denied the suggestion that no such action was initiated. He denied the suggestion that the workers had never refused to hand over Key/Codes Combinations or that he was deposing falsely to implicate them.
21. He denied the suggestion that some workers had asked the Management to take them back on duty. He deposed that he was having no knowledge about any Demand Notice sent by the Workman stating therein that false allegations were made against him and that he be taken on duty. He denied the suggestion that the Management had failed to take Workman on duty even after receipt of Demand Notice. He deposed that the Workmen were not taken on duty because they were on strike. He further deposed that he was not having any document to show that the Workmen were on strike.
22. He admitted it as correct that the CCTV was installed outside the office and in case the workers would have gone on strike or would have created ugly scenes, the same would have been recorded in the CCTV footage. He further admitted it as correct that no such CCTV footage LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 30 of 65
was filed in the Court. He deposed that he could not say if the Workman was illegally terminated by the Management.
23. MW2 Lokender Singh also deposed on similar lines in his affidavit of evidence as of MW1. He was crossexamined by the AR of Workman on 22.07.2014. During his crossexamination, he deposed that he had worked with the Management at its office at Mahipalpur as Vault Officer since 01.11.2011 and from April, 2012, he had been working as Vault Executive. He further deposed that his duty was to collect gold and cash from Custodians and keep the same in the Vault at office and to distribute the cash and gold to the Custodians to deliver to various clients. He deposed that he could not produce the ledger of delivery of collection of cash and gold from the Vault of the company for the period starting from 01.05.2010 to 30.05.2010 as the same could not be traced. However, he denied the suggestion that the Management was intentionally not producing the said document. He further deposed that he was working as Custodian during the period starting from 01.05.2010 to 30.05.2010 and during said period, he used to perform his duty outside company's office on route. He admitted it correct that he was not used to be aware of what was happening in the company when he used LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 31 of 65
to be on route duty. He further deposed that Mr. Khare was the General Manager of company in the month of May, 2010.
24. MW2 further deposed that he had heard that the Management had given an 8Point Agenda to the Union for discussing with them. He admitted it as correct that after holding meeting with the members of the Union, the Union had given proposal to the Management's Agenda. But he stated that he was not aware if the said proposal was accepted by the Management or not. He admitted it as correct that the work of Management from 01.05.2010 to 11.05.2010 was going on smoothly. He deposed that on 12.05.2010, he was on route duty and hence he did not know whether the Workman was refused to join duty. He further deposed that he could not produce any document before the Court to show that the Management had advised the Workman to handover the Key/Codes Combination of the company.
25. He deposed that the Management had not instructed the Workman to handover Key/Code Combinations in his presence. He admitted it as correct that the locks of the ATMs were not broken open in his presence. He deposed that he was not aware as to who had broken the LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 32 of 65
ATM locks, neither he was aware about the installing of new locks on the ATMs. He further deposed that he did not know as to how many ATM locks were broken open. He deposed that he was not aware whether the Management had kept any account of cash received from the brokenopen ATM machines. However, he denied the suggest that since no ATM locks were broken open, therefore, no record of cash received from such machines was maintained with the Management.
26. He further deposed that he was not having any knowledge if the Workman had offered to handover Key/Codes Combinations of ATM to the Management but the Management did not come forward to collect the same. He deposed that he was not having any knowledge if the document Ex.MW1/19 was prepared/forged after the termination of the Workman. He admitted it as correct that on 12.05.2010, when the Workman reached the office of Management, the gate was locked.
27. In Para 10 of his affidavit of evidence, the MW2 stated that because of inaction on the part of Workman in not handing over the Key/codes Combinations to the Management, the Management company was forced to engage outside agencies to break open the ATMs and paid LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 33 of 65
huge sum of money. But when he was asked by the AR of Workman to given details of the said huge sum of money, he replied that he was not having any knowledge of the same. When he was asked question that the Management had terminated the services of the Workman because the Workman had supported the Union and objected to the 8Point Agenda of the Management, he replied that it was correct, but later on when the question was explained to him, he replied that he was not having knowledge about the same. When he was given suggestion that the Management was not possessing any document to show that it had suffered very huge loss of business and reputation on account of acts of Workman, he replied that he did not know about the same and further that he was not possessing any such document in this regard. He admitted it as correct that he was not having any documentary evidence to prove that the Management had suffered huge losses in terms of business and reputation due to the Workman.
28. MW3 Praveen Roy has deposed in his affidavit of evidence i.e. Ex.MW3/A that he used to work as Vice President with M/s. G4S Cash Services (India) Pvt. Ltd. w.e.f. 02.09.2011 to 31.12.2014 and he had LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 34 of 65
been working with M/s. G4S Facilities Services (India) Pvt. Ltd. as Vice President w.e.f. 01.01.2015. He further deposed that the Workman had been working with the Management and had acquired expertise and skill in the specialized fields of handling cash/bullion from one place to another and managing ATMs, which was the core activity of the Management, but on account of failure of the Workman to report for duties at the transferred place, the Management could not continue providing specialized services to its clients and thus, the operation of the Management gradually reduced and the remaining employees left the employment after taking full and final dues in March, 2015. He further deposed that there were no contract/operations in existence with the Management company as the operation of the Management had stopped since March, 2015 and thus, the Workman was not entitled to any relief from the Management due to ceasing of its operations. It is pertinent to mention here that this witness seems to be confused as he has deposed that the Workman had failed to report for duty at the transferred place, whereas it not at all the case of the Management that the Workman was transferred but he failed to join duty there.
29. During his crossexamination conducted by the AR of Workman, the LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 35 of 65
MW3 admitted it as correct that the Management Company had not surrendered its certificate issued by the Registrar of Companies. He deposed that he was not having knowledge whether the company had surrendered its ESI and PF Number/Registration. He further deposed that he was not aware whether the company had closed its bank accounts or not. He deposed that he was not aware if the company had paid Rs.5,000/ as cost to several workmen whose cases were pending in the Court. However, he voluntarily said that it was a company having different departments and the payment used to get processed through the accounts or the legal department. He said that he could not say whether the company was having its bank accounts running with the HDFC Bank and Bank of America.
30. I have heard the final arguments from Sh. Mohan Nair, AR of the Workman and Sh. L.K. Tyagi, AR of the Management and perused the record including the written arguments filed by the parties.
31. My issuewise findings are as follows:
ISSUE NO.1 LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 36 of 65
Whether the Workman committed gross misconduct for which he was dismissed from service without holding any enquiry and if so, to what effect?
32. The onus to prove this issue was upon the Management. The case of the Management is that the Workman had committed gross misconduct due to which the Management lost confidence in him and therefore, terminated his services vide letter dated 15.05.2010 i.e. Ex.WW1/1 without conducting domestic enquiry as it was not practicable to hold enquiry. It is settled law that where the services of a workman are terminated by the management/employer without conducting any enquiry, the onus is upon the management/employer to prove that it was not possible to conduct the enquiry. The Hon'ble Supreme Court has held in Amar Chakravarty Vs. Maruti Suzuki India Ltd., 2010(14) SCC 471 as follows:
"When no enquiry is conducted before the service of a workman is terminated, the onus to prove that it was not possible to conduct the enquiry and that the termination was justified because of misconduct by the LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 37 of 65
employee, lies on the management. It bears repetition that it is for the management to prove, by adducing evidence, that the workman is guilty of misconduct and that the action taken by it is proper. In the present case, the services of the appellantsworkmen having been terminated on the ground of misconduct, without holding a domestic enquiry, it would be for the management to adduce evidence to justify its action."
33. So far as the present case is concerned, the evidence from the side of Management for not holding the enquiry is the oral testimony of MW1 who has deposed that neither the Workman had reported for work nor handed over the key/codes combination of the ATMs despite repeated advises given by the Management to hand over the same and thus, harassed and blackmailed the Management Company and lost the confidence of the Management and in view of the nature of acts committed by the Workman and the fact that the Management had lost confidence in him, it was not desirable or practicable to conduct domestic enquiry. But this explanation is not sufficient for not conducting the enquiry before the termination of services. The Management has LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 38 of 65
failed to prove that the circumstances/situation was so adverse or hostile that it was not practical to conduct enquiry. Since, the Management has failed to lead any cogent evidence in this regard, therefore, it is held that the plea of Management that it was not practical to hold enquiry, is not sustainable.
34. However, it is settled law that even if no enquiry is held before termination of services, the employer can lead evidence before the Court to justify its action. The Hon'ble Supreme Court has held in Workmen of M/s. Firestone Tyre and Rubber Co. of India P. Ltd. Vs. Management, AIR 1973 SC 1227 as follows:
"Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra."
LID No.456/2016
Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 39 of 65
It has been held by Hon'ble High Court of Delhi in Johnson and Johnson Ltd. Vs. Gajendra Singh Rawat, 2016 (233) DLT 388 as follows:
"First question for consideration is what is the effect of not conducting a disciplinary inquiry before terminating the services of the workman. The issue was dealt in detail in Municipal Corporation of Greater Bombay Vs. P.S. Malvenkar, AIR 1978 SC 1380. In that case, the services of the workman were terminated on account of unsatisfactory record of service. On factual matrix of the case, it was found that the order of termination was not punitive in character so as to invite disciplinary inquiry. It was further held that even if order of termination of service of the workman was punitive in character and could not have been passed save and except as a result of a disciplinary inquiry, the impugned order cannot be struck down as invalid on the ground of noncompliance with the requirement of standing orders since the workman availed of the opportunity open to her before the Labour Court when LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 40 of 65
the management adduced sufficient evidence to show that the impugned order terminating the service of the workman was justified."
35. Thus, it is clear that the order of termination of services of a workman cannot be held to be illegal merely on the ground of nonconducting of domestic enquiry as the employer can lead evidence before the Labour Court to justify its order of termination of services of the workman. Now let us see whether in the present case the Management has been successful in justifying its action of termination of services of the Workman? The case of the Management is that the services of the Workman were terminated as the Management had lost confidence in him due to the gross misconduct committed by him.
36. It is settled law that termination of services of a workman on account of loss of confidence would not amount to retrenchment. Though the employer can terminate a workman for loss of confidence but such loss of confidence must be based on objective reasons. It has been held by Hon'ble Supreme Court in Kanhaiyalal Agrawal Vs. The Factory Manager, Gwalior Sugar Co. Ltd., AIR 2001 SC 3645 as follows: LID No.456/2016
Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 41 of 65
"Loss of confidence cannot be subjective based upon the mind of the Management. Objective facts which would lead to a definite inference of apprehension in the mind of the Management regarding trustworthiness or reliability of the employee must be alleged and proved."
It has been held by Hon'ble Supreme Court in L. Michael Vs. M/s. Johnson Pumps Ltd., AIR 1975 SC 661 as follows:
"An employer who believes or suspects that his
employee, particularly one holding a position of
confidence, has betrayed that confidence can, if the conditions and terms of the employment permit, terminate his employment and discharge him without any stigma attaching to the discharge. But such belief or suspicion of the employer should not be a mere whim or fancy. It should be bonafide and reasonable. It must rest on some tangible basis and the power has to be exercised by the employer objectively, in good faith, which means honestly with due care and prudence. If the exercise of such power is challenged on the LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 42 of 65
ground of being colourable or male fide or an act of victimization or unfair labour practice, the employer must disclose to the Court the grounds of his impugned action so that the same may be tested judicially."
37. Thus, it is clear that the plea of 'loss of confidence' should not be a mere whim or fancy of the Management, rather it must be bonafide and reasonable, based on objective facts which led the Management to form opinion of untrustworthiness of the employee. The Hon'ble Supreme Court has held in the case of Kanhaiyalal Agrawal Vs. The Factory Manager, Gwalior Sugar Co. Ltd., AIR 2001 SC 3645 that for invoking the principle of 'loss of confidence', the following must be pleaded and proved: (i) That the workman was holding a position of trust and confidence; (ii) That by abusing such position, he had committed acts which results in forfeiting the same; and (iii) That to continue him in service would be embarrassing and inconvenient to the employer or would be detrimental to the discipline or security of the establishment.
38. In the present case, so far as the point of the Workman holding a position of trust and confidence is concerned, the Workman/WW1 has himself LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 43 of 65
admitted in his crossexamination that he was working with the Management as Custodian and the job of transfer of cash, replenishment in the ATMs, withdrawal from petrol pumps and transfer of bullions from airport to private agencies was used to be done through Custodian and that his work was the work of responsibility. Hence, it is admitted fact that the Workman was holding position of trust and confidence.
39. Now let us see that whether the Workman had committed acts of gross misconduct which led to loss of confidence in him. The evidence from the side of Management is the testimony of MW1 and MW2 who have deposed that the Workman was working as Custodian with the Management and that the Management had deployed him for servicing the ATMs of the bank, to which the Management had been providing servicing under the contract, and the Management had provided him with the key/codes combinations for the respective ATMs, but during the period starting from 01.05.2010, he had created obstructions in the performance of duties, due to which the work of replenishment of ATMs suffered, as a result of which, the bank instructed the Management to hand over the key/codes combinations, but despite being advised to provide key/codes combination of respective ATMs to the bank, the LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 44 of 65
Workman refused to handover the same and held the Management Company and the bank to ransom, which resulted in taking strict action by the bank against the Management Company. They further deposed that since the Workman did not handover the key/codes combination of ATMs, the bank was forced to break open the locks and install new locks on the said ATMs and that because of the deliberate act on the part of the Workman in not handing over the key/codes combination, it not only caused huge financial loss, but also caused loss of reputation and business to the Management Company. They further deposed that because of the inaction on the part of Workman, not only the Management suffered in its business and loss of reputation, it also caused a lot of inconvenience to the bank and its customers and due to the acts of insubordination of the Workman in not handing over the key/codes combination, the Management lost confidence in him and thus, it was decided to terminate his services and same was done vide Letter dated 15.05.2010.
40. Though the Management has alleged that the Workman had created obstructions in the performance of duties, but none of the MWs have clarified in their testimonies as to how, when and where the Workman LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 45 of 65
had created obstructions in the performance of duties. Though the MW 1 and MW2 have deposed that the Workman was advised to provide key/codes combination of respective ATMs to the bank to which he refused, but they have failed to specify the name of the person who had advised him to provide the key/codes combination and further that on which date and at what place he was so advised. The MW1 has admitted in his crossexamination that he was not having any documentary evidence regarding the refusal of Workman to handover the key/codes combination. He has also admitted it as correct that no showcause notice in this regard was filed on record. He has also admitted it as correct that the Management had not registered any case against the Workman regarding refusal to handover the key/codes combinations. Had the Workman refused to handover the key/codes combination, the Management must have filed complaint against him or at least given any showcause notice to him in this regard. But neither any complaint was filed against him nor any showcause notice was given to him and this leads towards nothing but that the version of Management on this point is not believable. It is pertinent to mention here that the MW2 has also deposed during his crossexamination that LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 46 of 65
he could not produce any document to show that the Management had advised the Workman to handover the key/codes combination. The MW 2 has deposed that the Management had not instructed the Workman to handover key/codes combinations in his presence.
41. The case of the Workman is that he had never refused to handover the key/codes combination, rather when the Management was neither lifting its illegal lockout nor allowing the Workman to resume duty, the Labour Union had written letter i.e. Ex.WW1/18 to the Management stating therein that the Workman was having key/combination of the ATM and was willing to handover the same to the Management, but neither the Management accepted the key/combination nor sent any responsible official to collect the same. The Workman/WW1 had categorically stated during his crossexamination that he had made a call to Mr. R.S. Chauhan, Manager (ATM) asking him thereby to take ATM codes from him and he told him that they would take back the ATM code but did not take back the ATM codes and afterwards Mr. R.S. Chauhan stopped picking up his telephonic calls. But despite his categorical testimony on this point, he was not even given any suggestion to deny the said facts. He had also categorically stated during his crossexamination that he LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 47 of 65
had been visiting the office but the Management did not take the ATM code combination from him despite requests made in that regard. But again, no suggestion to deny the said fact was given to him. It is settled law that if the opposite party fails to crossexamine a witness on a certain point, then the said party is deemed to have accepted the same as true. Thus, in the absence of any suggestion to contrary, the testimony of WW1 on the aforesaid point is deemed to be accepted by the Management. It is not out of place to mention here that the Management's own witness i.e. MW2 has not denied the fact of Workman's offer to handover key/codes combination to the Management and Management's inaction to come forward to collect the same. He has simply stated that he was not having any knowledge in this regard.
42. The further case of the Management is that the Workman had not reported for duty on 12.05.2010. But the Workman has deposed that the Management wanted to implement antilabour policies and to curtail certain existing benefits of the workers, but the Labour Union did not agree to the same and since he was the active member of the Union and used to oppose the new agenda of the Management, the LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 48 of 65
Management tried to victimize him by hook or crook and that just because the Union did not agree to the Management's arbitrary agenda, the Management put illegal lockout at its office and when he went to report for duty on 12.05.2010, it was found that the office was locked and only one guard was sitting outside the office and one handwritten notice was pasted on the gate by the Management regarding immediate closing of its office. He has further deposed that no notice or intimation was given to the workers or to the Labour Department about the closure of the office and because of illegal lockout, he and other workers could not resume duty. He has placed on record several documents viz. Ex.WW1/11, Ex.WW1/12, Ex.WW1/14, Ex.WW1/16, Ex.WW1/18 and Ex.WW1/20 regarding illegal lockout by Management. It is pertinent to mention here that these documents have not be disputed/objected to by the Management as no question or suggestion was put to the WW1 for denying the authenticity of these documents.
43. Though the MW2 has deposed in his affidavit of evidence that the Workman had not reported for duty on 12.05.2010, but during his cross examination, he said that on 12.05.2010, he was on route duty and LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 49 of 65
hence he did not know whether the Workman was refused to join duty. Though, in his affidavit of evidence, he said that the Management had never declared any lockout and that the gate of Management was not locked, but during his crossexamination, he admitted it as correct that on 12.05.2010, when the Workman reached the office of Management, the gate was locked.
44. Though, the Management's stand in its Written Statement throughout was that neither any written notice regarding closing of office was pasted on the gate of Management nor there was any lockout, but during the crossexamination of WW1, he was given an altogether new suggestion that the Management had not locked out but in fact, the Workman along with other employees had held dharna, gheraow and/or demonstration and blocked the game from 01.05.2010 to 15.05.2010 and did not allow the willing workers to enter the premises of the Management to do their duty. The MW1 has also raised a new ground during his crossexamination as he has said that the workers were on strike on 13.05.2010. This is obviously beyond pleadings. It is settled law that the evidence, which is beyond pleadings, cannot be taken into consideration by the Court. The Hon'ble High Court of Delhi has held in LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 50 of 65
Prakash Rattan Lal Vs. Mankey Ram, 2010(21) R.C.R.(Civil) 304 as follows:
"4. The sole purpose of pleadings is to bind the parties to a stand. When the plaintiff makes certain allegations, the defendant is supposed to disclose his defence to each and every allegation specifically and state true facts to the court and once the facts are stated by both the parties, the court has to frame issues and ask the parties to lead evidence. It is settled law that the parties can lead evidence limited to their pleadings and parties while leading evidence cannot travel beyond pleadings. If the parties are allowed to lead evidence beyond pleadings, then the sacrosanctity of pleadings comes to an end and the entire purpose of filing pleadings also stand defeated. The other purpose behind this is that no party can be taken by surprise and new facts cannot be brought through evidence which have not been stated by the defendant in the written statement. The law provides a procedure for amendment of the pleadings and if there are any new facts which the party wanted to bring on record, the party can amend pleadings, but without LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 51 of 65
amendment of pleadings, a party cannot be allowed to lead evidence beyond pleadings.
5. I am supported in this view by judgments of Supreme Court in AIR 1975 1 SCC 212; Harihar Prasad Singh & Ors. Vs. Balmiki Prasad Singh wherein the Supreme Court has held that evidence adduced cannot travel beyond the pleadings. In AIR 1987 2 SCC 555; Ram Sarup Gupta by LRs Vs. Bishun Narain Inter College & Ors., the Supreme Court again reiterated that the evidence cannot travel beyond the pleadings."
The Hon'ble Supreme Court of India has held in Ram Sarup Gupta by LRs Vs. Bishun Narain Inter College & Ors., AIR 1987 2 SCC 555 as follows:
"It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 52 of 65
object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise."
45. Thus, it is settled law that the evidence cannot travel beyond the pleadings and that in the absence of pleadings, evidence, if any, produced by the parties cannot be considered. Since in the present case, the Management has nowhere pleaded in its Written Statement regarding strike or holding of dharna, gheraow and/or demonstration and blocking of gate by the Workman, therefore, the evidence of Management in this regard is liable to be rejected being beyond pleadings. Moreover, it is not out of place to mention here that no witness has been examined by the Management who had himself seen the Workman participating in any such dharna or gheraow or demonstration. It is also not out of place to mention here that the MW1 has deposed that the Management had never sent any notice to the Labour Department informing about the workers proceeding on strike, though a letter dated 01.05.2010 was given to the SHO regarding the LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 53 of 65
strike. But his testimony on this point contradicts his own version that the strike was started by the workers on 13.05.2010. If the strike had started on 13.05.2010, then how come letter written to SHO on 01.05.2010 could be regarding the strike? The MW1 has deposed that he was not having any document to show that the workmen were on strike. He admitted it as correct that the CCTV was installed outside the office and in case the workers would have gone on strike or would have created ugly scenes, the same would have been recorded in the CCTV footage. He further admitted it as correct that no such CCTV footage was filed in the Court. Thus, it is clear that the Management has failed to prove that the Workman had not come to report for duty on 12.05.2010, whereas the Workman has proved vide documents Ex.WW1/11, Ex.WW1/12, Ex.WW1/14, Ex.WW1/16, Ex.WW1/18 and Ex.WW 1/20 that there was lockout by the Management w.e.f. 12.05.2010.
46. The MW1 and MW2 have deposed in their affidavits of evidence that since the Workman had not handed over the key/codes combination of ATMs, the banks were forced to break open the locks and install new locks on the said ATMs and that because of the deliberate act on the LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 54 of 65
part of the Workman in not handing over the key/codes combination, it not only caused huge financial loss, but also caused loss of reputation and business to the Management Company. But during cross examination of MW1, he deposed that the Management company had broken the entire key/codes combinations of the ATMs, whereas in his affidavit of evidence he stated that the bank had broken open the locks of ATMs. The MW2 has deposed that the locks of the ATMs were not broken open in his presence and that he was not aware as to who had broken the ATM locks, neither he was aware about the installing of new locks on the ATMs. He further deposed that he did not know as to how many ATM locks were broken open. He deposed that he was not aware whether the Management had kept any account of cash received from the brokenopen ATM machines. He deposed that he was not having any knowledge if the Management was not possessing any document to show that it had suffered huge loss of business and reputation on account of acts of Workman. He admitted it as correct that he was not having any documentary evidence to prove that the Management had suffered huge losses in terms of business and reputation due to the Workman.
LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 55 of 65
47. Thus, it is clear from the above analysis that the Management has failed to prove that the Workman had committed gross misconduct and caused huge loss of business and reputation to the Management, which resulted into loss of confidence in him. Hence, this issue is decided in favour of the Workman and against the Management. ISSUE NO.2 Whether the services of the Workman were illegally and unjustifiably terminated?
48. The onus to prove this issue was upon the Workman. The Workman/WW1 has deposed that due to illegal lockout by the Management, he was not allowed to join duty on 12.05.2010 and subsequently his services were illegally terminated by the Management through back dated Termination Letter dated 15.05.2010 i.e. Ex.WW1/1 which he had received on 14.06.2010. The Management has admitted the termination of services of the Workman vide Termination Letter Ex.WW1/1. The only plea of the Management was that the services of the Workman were terminated as he had committed gross misconduct LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 56 of 65
which resulted into loss of confidence in him. But it has already been held, while giving findings on Issue No.1, that the Management has failed to prove that the Workman had committed any gross misconduct. Hence, it is held that the termination of his services by the Management is illegal as neither the Management had issued any prior notice to the Workman nor given any notice pay or retrenchment compensation to him nor given any notice in accordance with Sec.25F(c) of Industrial Disputes Act to the appropriate government. Hence, this issue is also decided in favour of the Workman and against the Management. Relief:
49. The Workman has prayed for his reinstatement with full back wages and continuity of service with all consequential benefits. But the AR of Management, during the final arguments, has contended that the Workman could not granted the relief of reinstatement as the Management is no more existing because its operations have already been stopped. But it is pertinent to mention here that the Management's own witnesses i.e. MW1, MW2 and MW3 have categorically deposed that it is only the name of the company which has been changed from LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 57 of 65
"M/s. G4S Cash Services India Pvt. Ltd." to "M/s. G4S Cash Solutions India Pvt. Ltd." Neither MW1 nor MW2 have uttered anything about the cessation of operations of the Management company. It was only MW3 who has stated that the operations of the Management had stopped completely w.e.f. March, 2015. But even this witness, during his cross examination, deposed that the Management company had not surrendered its Certificate of Incorporation issued by the Registrar of Companies. He did not state that the Management company had surrendered its ESI or PF numbers/registration; he simply said that he was not having knowledge about the same. He further said that he was not aware whether the Company had closed its bank accounts or not. He further said that he could not say if the Company was having bank accounts running with HDFC Bank and Bank of America. When he was asked question that the Management Company had paid Rs.5,000/ as cost to several workmen whose cases were pending in the Court, he replied that he was not aware about the same. He voluntarily said as follows:
"It is a company and there are different departments so this payment get processed through the LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 58 of 65
accounts or the legal department."
Thus, it is clear from the testimony of MW3 that the Management company is very much in existence and having many functioning departments.
50. Now so far as the relief of reinstatement and back wages are concerned, it is pertinent to mention here that in the landmark judgment titled as Deepali Gundu Surwase Vs. Kranti Junior Adhyapak & Ors., 2013(10) SCC 324, the Hon'ble Supreme Court has held that in cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. It has also been held by Hon'ble Supreme Court in Hindustan Tin Works (P) Ltd. Vs. Employees of M/s Hindustan Tin Works Pvt. Ltd. & Ors., (1979) 2 SCC 80 that full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. It has been further held in the said case by Hon'ble Apex Court as follows:
"When it was held that the termination of services was neither proper nor justified, it would not only show that the workmen were always willing to serve but if they LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 59 of 65
rendered service they would legitimately be entitled to the wages for the same. If the workmen were always ready to work but they were kept away therefrom on account of an invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them."
51. The Hon'ble Apex Court has held in this regard in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak & Ors., 2013(10) SCC 324 as follows:
"The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 60 of 65
suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 61 of 65
relieving him of the obligation to pay back wages including the emoluments."
52. It has also been held in Deepali Gundu's case (supra), "Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 62 of 65
that the employee was gainfully employed and was getting the same or substantially similar emoluments."
53. Following the judgment of Deepali Gundu Surwase (sapra), the Hon'ble Supreme Court has again held in Jayantibhai Raojibhai Patel Vs. Municipal Council, Narkhed, 2019(17) SCC 184 that denial of back wages to employee, who has suffered due to illegal act of employer would amount to indirectly punishing employee concerned and rewarding employer by relieving him of obligation to pay back wages including emolument.
54. In the present case, the Workman/WW1 has specifically deposed in his affidavit of evidence that he was unemployed since the day of illegal termination of his services and could not find any job despite efforts made by him. Thus, the onus had shifted to the Management to prove the contrary. The Management was required to lead cogent evidence of gainful employment of the Workman during the interregnum period. But no such evidence has been led by the Management. The Workman/WW1 had deposed in his crossexamination that his monthly family expenses were met by his father who used to take land on batai. LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 63 of 65
But not even any suggestion was given to him to deny the said fact. There is no evidence from the side of Management regarding gainful employment of the Workman except a bald suggestion given to the Workman/WW1 that he was gainfully employed. But aforesaid suggestion is just a bald suggestion without any material to support the same. Not even the name of the alleged employer of the Workman was mentioned. Thus, it is clear that the Management has failed to prove that the Workman was gainfully employed.
55. It has also been held by Hon'ble Supreme Court in Deepali Gundu's case (supra), "The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 64 of 65
the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages."
(underlining added)
56. Since in the present case also, the Management has failed to prove that the Workman is not guilty of any misconduct, therefore, he is required to be granted full back wages.
57. The Hon'ble Supreme Court in Deepali Gundu's case (supra) has held that the Courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
58. Hence, in view of the aforesaid discussion/analysis and the law laid down by the Hon'ble Apex Court, the Statement of Claim as filed by the Workman is allowed and the Management is directed to reinstate the LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd. Page 65 of 65
Workman in service with continuity of service and full back wages along with all other consequential benefits.
59. Award is passed accordingly. Reference stands answered in aforesaid terms. Copy of this Award be sent to Labour Commissioner for publication. Case file be consigned to the Record Room. (Announced in open Court on 07.08.2023) NAVITA Digitally by NAVITA signed KUMARI KUMARI BAGHA Date: 2023.08.07 BAGHA 18:54:59 +0530 (Navita Kumari Bagha) Presiding Officer, POLC07 Rouse Avenue District Court, New Delhi LID No.456/2016 Deepak Sharma Vs. M/s. G4S Cash Services (India) Pvt. Ltd.