Delhi District Court
Arvind Ray S/O Sh. Baikunth Rai vs Proprietor Sh. Narender Dixit (Sic) on 25 April, 2014
Arvind Ray Vs. M/s. G. K. Retail Pvt. Ltd. DID No. 156/10
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI :
KARKARDOOMA COURTS: DELHI
DIRECT INDUSTRIAL DISPUTE (DID No. 156/10)
UNIQUE CASE ID No. 02402C0158402010
In the matter of :
Arvind Ray S/o Sh. Baikunth Rai,
WJZ148, Todapur Inderpuri, Delhi
C/o Hindustan Engineering and General Mazdoor Union,
D2/24, Sultanpuri, New Delhi86 ..... Workman
V/s.
Proprietor Sh. Narender Dixit (sic)
M/s. G.K.Retail Pvt. Ltd.
F405, Sudershan Park Basai Darapur,
New Delhi 110015 ....... Management
Date of Institution : 03.06.2010
Date of reserving for award : 29.03.2014
Date of award : 25.04.2014
STATEMENT OF CLAIM U/S. 10 (4A) OF THE INDUSTRIAL DISPUTES ACT, 1947.
AWARD
1. CASE OF WORKMAN AS PLEADED IN STATEMENT OF CLAIM FILED ON
03.06.2010 UNDER SECTION 10 (4A) OF THE INDUSTRIAL DISPUTES ACT, 1947
(i) Workman was working with the management as 'Salesman' since 01.01.1991 with
his last drawn salary as Rs. 3850/ p.m. During his service tenure workman did not give
any opportunity to the management to have any complaint against him and previous
record of the workman was very good and also his work was satisfactory. At the time
workman joined the management, management got deposited Rs.40,000/ as security
from the workman. Previously management was running the establishment / business
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with the name of M/s Gopal Dairy and, subsequently, it was changed to M/s Gopalji
Dairy and presently management is running the establishment / business as M/s G. K.
Retail Pvt. Ltd. Management changed its name to avoid its legal obligations and also
management did not issue any transfer letter to the workman which was being demanded
by the workman for a long time continuously.
(ii) Management was not providing facilities available under the labour laws such as
ESI from the date of appointment, appointment letter, attendance card, PF, earned leave,
casual leave, bonus, overtime, transfer letter etc. and, further, management was not
making payment of minimum wages @ Rs. 4377/. When workman raised demands for
these facilities management started remaining annoyed with the workman.
(iii) On 20.11.2009, workman, as usual, reported for duty but the management with
retaliatory feelings without any notice and reason terminated the services of the
workman on 20.11.2009. This act of the management is antilabour and illegal.
(iv) On 30.11.2009, workman made a complaint to Asst. Labour Commissioner
through union. Illaqua Labour Inspector was sent to the establishment of management
and in the presence of the Labour Inspector, management admitted that it will take the
workman back on duty but management refused to take the workman back on duty.
(v) On 11.01.2010 workman sent a demand notice through registered A/D through
union which was replied by the management. Also workman sent a demand notice on
15.12.2009 and on account of defects in this notice again demand notice dated 11.01.2010
was sent.
(vi) Management terminated the services of the workman with retaliatory feelings
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and this act of the management comes within the definition of "retrenchment" u/s 2 (oo)
of the Industrial Disputes Act, 1947 and management has violated the Section 25 F, 25 G
and 25H of the Industrial Disputes Act, 1947.
(vii) Since the date of termination of his services by management, workman is
completely unemployed and has no source of livelihood ('rojiroti'). Workman made
endless efforts to get the service but workman could not get any service.
With these averments, workman prayed for an order/award cancelling the order
dated 20.11.2009 vide which his services were terminated illegally by the management.
Also workman prayed for his reinstatement with full back wages alongwith interest @
18% and other legal benefits.
2. CASE OF MANAGEMENT AS PLEADED IN WRITTEN STATEMENT.
While denying the case as pleaded by the workman in the statement of claim,
management took the stand that workman joined the services of the management on
01.04.2008 and his last drawn salary was Rs. 3955/ p.m and lastly workman was
working as a 'salesman' on the outlet of the management situated at Ranjeet Nagar, New
Delhi from where workman after manipulating the funds took Rs. 45,000/ and left away
the outlet without any intimation after closing the shop on 11.11.2009 and thereafter
never came to resume his duties.
Workman was extended all the legal facilities including the minimum wages for
which he was entitled and applicable to the firm of the management. There arose no
occasion when the workman ever demanded the legal facilities. Also on 20.11.2009,
workman did not visit the management and rather workman at his own started absenting
from duty w.e.f. 12.11.2009 that too after taking away a cash of Rs. 45,000/ from the
outlet of the management. Management in the WS also denied the averments made by
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workman regarding the visit of the Labour Inspector with the workman to the
establishment of the management. As alleged even after sending letters after letters,
workman did not resume his duty. As per management, services of the workman have
never been terminated or retrenched and, therefore, question of observation of relevant
provisions of the Industrial Disputes Act, 1947 does not arise. Management also denied
the averments made by workman regarding the demand notices dated 01.11.2010 and
15.12.2009.
As per management, noticing the conduct of the workman, management
immediately started writing letters to join his duties and to clear the accounts of the
outlet but instead of doing so workman filed false and frivolous litigation against the
management before this court as well before Minimum Wages Authority and Authority
under Delhi Shops and Establishments Act, 1954 at Karampura, Delhi. Further, as a
preliminary objection, management pleaded that claim filed by the workman u/s 10 (4A)
Industrial Disputes Act (Delhi Amendment) 2003, is not maintainable and is liable to be
dismissed in view of the fact that services of the workman were never terminated at any
point of time much less as alleged nor any communication of termination was effected
on the workman as required for filing of claim u/s 10 (4A) of Industrial Disputes Act
(Delhi Amendment), 2003.
3. Rejoinder
Workman filed rejoinder to the WS of the management wherein workman denied
the stand taken by the management and reaffirmed the averments made in the statement
ofclaim.
4. ISSUES
Vide order dated 22.03.2011 following issues were framed by the ld. predecessor
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of this court :
(i) Whether the workman has abandoned his duties, if yes, from what date
and period? OPM.
(ii) Whether the services of the workman have been terminated illegally
and/or unjustifiably by the management?OPW
(iii) Relief, if any.
5. EVIDENCE
Workman appeared in the witness box as WW1 Mr. Arvind Ray. Management
examined MW1 Mr. Manish Saxena, Accounts Manager.
6. DISPOSAL OF THE APPLICATION OF WORKMAN SEEKING
PRODUCTION OF RECORDS FROM THE MANAGEMENT.
Vide order dated 15.02.2014 an application moved by workman seeking
summoning / production of records from the management was dismissed.
7. ARGUMENTS
I have heard Sh. Kailash Jonwal, Adv. for workman and Sh. Ajani Kumar
Chaudhary, Adv. for management. Written submissions have also been filed on behalf of
the management. Ld. counsel for workman relied upon case laws reported as (i) M/s D.
C. M. Ltd. Vs. State of Uttar Pradesh and Ors. 2003 LLR 136; (ii) The Management of
M/s Escorts Ltd., Faridabad Vs. Kesar Chand & Anr. 2009 LLR 678; (iii) D. K. Yadav
Vs. M/s J. M. A. Industries Ltd. 1993 LLR 584; (iv) Deepali Gundu Surwase Vs. Kranti
Junior Adhyapak Mahavidyalaya (D. ED.) and Ors. 2013 STPL (Web) 703 SC; (v) Janki
Vashdeo Bhojwani and Ors.Vs. Indusind Bank Ltd. & Ors. AIR 2005 SC 439 and (vi) H.
D. Singh Vs Reserve Bank of India and Ors. AIR 1986 SC 132. Ld. counsel for
management relied upon case law reported as (i) Shri Tej Pal Vs. M/s Gopal Narain &
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Sons and Anr. W. P. (C) 15504/2004 D.O.D. 28.08.2006 by Hon'ble Mr. Justice Shiv
Narain Dhingra, Judge Hon'ble High Court of Delhi and (ii) Diamond Toys Co. (P) Ltd.
Vs. Toofani Ram and Another WP(C) No. 4501/04 decided by Hon'ble Mr. Justice Shiv
Narain Dhingra, Judge Hon'ble High Court of Delhi.
8. My ISSUEWISE findings are as under :
ISSUE NO.1
Whether the workman has abandoned his duties, if yes, from what date and period?
OPM.
ISSUE NO.2
Whether the services of the workman have been terminated illegally and/or unjustifiably
by the management? OPW
Both the issues are being dealt with under a common discussion in as much as
decision of the Court on one issue will have a direct bearing on the decision of the Court
on another issue. In fact, decision of the Court on one issue will determine the fate of
another issue. If issue no.1 is decided in favour of management, issue no.2 will have to
be decided against the workman. If issue no.2 is decided in favour of workman, issue
no.1 will have to be decided against the management.
AT THE OUTSET, it is pertinent to note that written statement of defence filed
on behalf of the management has been signed by one Mr. Rajeev Garg, Accounts
Manager on the basis of BOARD RESOLUTION arising out of Board of Directors
Meeting held on 24.12.2010. The said resolution also provided that, "......... And it is
agreed that all acts, deeds and things lawfully done by Mr. Narender Dixit, one of the
directors shall be construed as acts, deeds and things done by him by virtue of powers
conferred upon him in the meeting of Board of Directors." But neither Mr. Rajeev Garg
nor Mr. Narender Dixit appeared in the witness box to prove the case pleaded by
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management in its WS. This is so despite the fact that workman in the statementof
claim specifically mentioned the name of Mr. Narender Dixit as proprietor of the
management. It is alright that Mr. Narender Dixit cannot be said to be proprietor of M/s
G. K. Retail Pvt. Ltd. but possibility of his being proprietor of M/s Gopal Dairy and M/s
Gopalji Dairy cannot be ruled out altogether. It was for Mr. Narender Dixit to appear in
the witness box and withstand / suffered the cross examination by the workman. Mere
filing of WS does not serve any purpose unless and until the contents thereof are duly
established / proved on judicial file either in the cross examination of the witness(es) of
the workman itself or by examining relevant and proper witnesses by the management.
In the facts and circumstances of this case, Mr. Rajeev Garg as signatory to WS /
authorised representative vide resolution dated 24.12.2010 and Mr. Narender Dixit being
the director of the management (as well as owner of the management) were the relevant
and proper witnesses on behalf of management. But, without there being any
explanation from the management, neither of these two witnesses has been examined by
the management to prove its case as pleaded in written statement of defence filed by the
management. In the absence of examination of relevant and proper witnesses by the
management to prove the contents of WS and thereby making the Court to conclude that
defence taken by management in its WS has totally remained unsubstantiated, even the
suggestions of facts given by management in the cross examination of witnesses of the
workman looses much their significance in as much as stand taken by the management in
its WS has remained totally unsubstantiated. In this case management has examined
MW1 Mr. Manish Saxena, Accounts Manager of the management. MW1 Mr. Manish
Saxena, in his cross examination deposed that, "I have not filed any board resolution in
my favour for deposing on behalf of management. I have also not filed any document
showing therein that I am working as an Accountant..........". Ordinary commonsense /
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prudence required Mr. Manish Saxena to file documentary proof of his working as
Accounts Manager of the management. But despite his above depositions made on
11.04.2013, and on 11.04.2013 and, subsequently, his remaining cross examination
having been deferred on several occasions till 26.11.2013, on which date cross
examination of MW1 Mr. Manish Saxena was concluded, MW1 Mr. Manish Saxena
did not produce any documentary evidence to show that he (MW1 Mr. Manish Saxena)
is working as Accounts Manager of the management. It is alright that for a person to be
able to depose as a witness on behalf of a company like the management, it is not
mandatory to have a board resolution authorising such person to appear as a witness but
to be able to be a witness such person must be shown to be having a first hand / personal
knowledge of the facts as pleaded in the WS or as deposed by such person in his
affidavit. Even in the case of record(s) based evidence, management is duty bound to
examine firstly the person who maintained the said record(s) or under whose supervision
the said record(s) were prepared in the ordinary course of its business / official dealings.
When for good and sufficient reasons, to be specifically disclosed by management, such
a person is not able to attend the Court as a witness only then management can be
permitted to make an attempt to prove such record(s) based evidence through any other
witness. It is pertinent to note that law does not attaches as presumption of truthfulness /
correctness to the record(s) allegedly maintained by company like the management in
purported course of its official / business dealings.
In this case, MW1 Mr. Manish Saxena deposed that, "....... I have joined the
management for the last one year. I have personal knowledge of this case. It is wrong to
suggest that I do not have personal knowledge regarding this case... I have no knowledge
about the alleged security of Rs.40,000/ taken by the management from the
workman.......I am deposing before this court on the basis of my own personal knowledge
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as well as on the basis of the record available with the Management...... I joined the
Management on 01.03.2012. Before 01.03.2012 I had no connection with the
Management in any manner.........". As MW1 Mr. Manish Saxena joined the
management only on 01.03.2012 and he was having no connection in any manner with
the management prior to 01.03.2012, MW1 Mr. Manish Saxena cannot at all be said
taken to be having any personal knowledge of the facts as pleaded by management in its
written statement of defence. Thus, it is observed that facts as pleaded by management in
its WS, despite opportunity given to management to prove the same on judicial file, can
be said to have remained totally unsubstantiated on judicial file. MW1 Mr. Manish
Saxena cannot be taken to have duly proved Attendance Register Ex.MW1/1 on judicial
file for many reasons including that (i) there is no explanation as to why the person who
maintained the said register or in whose presence / under whose supervision it was
prepared has been examined. Obviously, MW1 Mr. Manish Saxena did not prepare Ex.
MW1/1 nor Ex.MW1/1 was prepared by or in the presence or under the supervision of
MW1 Mr. Manish Saxena as MW1 Mr. Manish Saxena joined the management only on
01.03.2012; (ii) Ex.MW1/1 is not in the handwriting of any of the workmen; (iii)
Ex.MW1/1 does not bear the signatures of anybody on behalf of management; (iv)
management has not even disclosed as to who prepared / maintained the said register and
as to why such person has not been examined as a witness by the management to prove
Ex.MW1/1; (v) entries in Ex.MW1/1 have not been corroborated by producing salary /
wages register admittedly maintained by the management in view of depositions of
MW1 Mr. Manish Saxena that, ".... Que. : Kindly tell the details of the record
maintained by the Management on the basis of which you are making depositions in the
court? Ans.: Attendance register, salary / wages register, ESI and PF records...."; (vi)
none of the workmen named in the Ex. MW1/1 has been examined by the management
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to add to the veracity of contents of Ex. MW1/1; (vii) careful perusal of Ex. MW1/1,
particularly keeping in view the writing / ink / pen used in preparing the Ex. MW1/1,
does not suggest that Ex. MW1/1 has been maintained by it in usual / ordinary course of
its official dealings.
Thus, it can be said that stand taken by management can be said to have remained
totally unsubstantiated on judicial file for want of examination of proper and relevant
witness by the management.
ADDITIONALLY, it is pertinent to note that Ex. WW1/7 and Ex. WW1/8
(letters written by management to workman) mentions that, "...... And as per records Rs.
45,000/ shortage found during the period....". Somewhat inconsistent with these
averments, management in the WS pleaded that workman starting absenting from the
duties after taking away a cash of Rs.45,000/ from the outlet of the management. It has
nowhere been brought on judicial record by the management as to alleged shortage of
funds pertained to which specific period of time. Also, MW1 Mr. Manish Saxena in
his cross examination deposed that, "....... I have not filed any documentary proof on
record showing embezzlement of Rs.45,000/. It is wrong to suggest that no such
document has been filed because workman did not embezzle the said sum. Management
had not lodged any complaint against the workman in this regard............". Thus, it is
observed that stand taken by management that workman took away a cash of Rs.45,000/
or embezzled the said amount has not been even attempted to be proved / established on
judicial file. This stand of management is held to be baseless.
ISSUE No. 1 pertains to alleged abandonment of his services by the workman.
As regards abandonment of services by a workman, Hon'ble Supreme Court of India in
in the case law reported as G. T. Lad & Ors. V/s. Chemical and Fibres of India Ltd.
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(1979) 1 SCC 590 observed / ruled as under:
"5a. Re Question No.1: ........According to Black's Law Dictionary
'abandonment' when used in relation to an office means 'voluntary
relinquishment'. It must be total and under such circumstances as clearly to
indicate an absolute relinquishment. The failure to perform the duties pertaining
to the office must be with actual or imputed intention, on the part of the officer
to abandon and relinquish the office. The intention may be inferred from the acts
and conduct of the party, and is a question of fact Temporary absence is not
ordinarily sufficient to constitute an 'abandonment of office'.
6. From the connotations reproduced above it clearly follows that to
constitute abandonment, there must be total or complete giving up of duties so as
to indicate an intention not to resume the same. In Buckingham & Carnatic Co.
v. Venkatish (1964) 4 SCR 265, it was observed by this Court that under
common law an inference that an employee has abandoned or relinquished
service is not easily drawn unless from the length of absence and from other
surrounding circumstances an inference to that effect can be legitimately drawn
and it can be assumed that the employee intended to abandon service.
Abandonment or relinquishment of service is always a question of intention, and
normally, such an intention cannot be attributed to a employee without adequate
evidence in that behalf. Thus, whether there has been a voluntary abandonment
of service or not is a question of fact which has to be determined in the light of
the surrounding circumstances of each case."
Also, Hon'ble Delhi High Court in the case law reported as Shri Shiv Kumar V/s.
Hansita 2011 LLR 13 observed / ruled as under:
"8. It is a settled legal position that the abandonment of service cannot be
readily inferred. Abandonment of service is a question of intention which can be
gathered from the totality of the facts and circumstances of each case. There has
to be a clear evidence on record to show that despite grant of reasonable
opportunity to the employee by the management, he failed to join back his duties
without any sufficient reasons and therefore in the absence of any such cogent
and convincing evidence, voluntarily abandonment on the part of the employee
cannot be readily inferred.......".
Further, Hon'ble Delhi High Court in the case law reported as M/s Fateh Chand
V/s. Presiding Officer, Labour Court and Anr. MANU/DE/0137/2012 observed / ruled as
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under:
"7. ........... It is also no more res integral that even in a case of unauthorized
absenteeism or to prove abandonment of service on the part of the workman the
management must place on record necessary material to prove that enough
efforts were made by it to call upon the workman to resume back his duty and the
workman has shown his clear reluctance for the same....................
Undoubtedly, unauthorized absenteeism is a ground for termination ad has been
held to be misconduct in a catena of judgments. But when is it an unauthorized
absenteeism is to be determined from the facts and circumstances of each
case.....".
8. It is also a settled legal position that abandonment of service is different
from absenteeism. Abandonment of service is the voluntarily relinquishment of
ones services with the intention not to resume the same. It is a matter of inference
to be drawn from the facts and circumstances of each case and mere absenteeism
for a continuous period does not mean that the employee has abandoned his
service. The management has to bring on record sufficient material to show that
the employee has abandoned the service and abandonment cannot be attributed to
the employee without there being sufficient evidence. On the failure to report for
duty, the management has to call upon the employee and if he refuses to report,
then an enquiry is required to be ordered against him and accordingly action taken.
In the absence of anything placed on record by the petitioner management, no
presumption against the respondent can be drawn.........".
In this case, as per workman his services were terminated on 20.11.2009. Immediately, thereafter, workman made a complaint (Ex.WW1/4 dated 30.11.2009) regarding termination of his services by the management on 20.11.2009. Thereafter, workman sent demand notice dated 15.12.2009 to the management. The date of 15.12.2009 is also mentioned on Ex.WW1/4, and the facts suggest that Ex.WW1/4 was sent to management as a demand notice dated 15.12.2009. Subsequently, workman sent another demand notice Ex.WW1/1 (dated 11.01.2010) to the management. In this regard workman is also relying upon postal receipt Ex.WW1/2 and AD card Ex.WW1/3. In view of Ex.WW1/2 and Ex.WW1/3 (acknowledgment card) management can be taken to have been served with the demand notice Ex.WW1/1 but management denied its Page 12 to 17 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/25.04.2014 Arvind Ray Vs. M/s. G. K. Retail Pvt. Ltd. DID No. 156/10 service with demand notice Ex.WW1/1. Admittedly, Ex.WW1/1 and Ex.WW1/3 were having correct address of management. MW1 Mr. Manish Saxena simply deposed that, ".... I cannot identify the signatures of the receiver on Ex.WW1/3.....", but did not even volunteered that the said signature were not pertaining to anybody from the management. MW1 Mr. Manish Saxena, not being in the employment of management on 19.01.2010, could not have deposed that, ".... Document Ex.WW1/1 was never received by the Management...", as deposed by him in his cross examination. MW1 Mr. Manish Saxena could not have deposed that, "............ It is wrong to suggest that the workman visited the Management alongwith the Labour Inspector on 30.11.2009 for duties but the Management refused for the same....." in as much as MW1 Mr. Manish Saxena joined the management on 01.03.2012 only and prior thereto he was having no connection in any manner with the management. Workman filed this direct industrial dispute on 03.06.2010. The promptness exercised by workman in taking steps vide Ex.WW1/4 (dated 30.11.2009), demand notice date 15.12.2009, another demand notice Ex.WW1/1 (dated 11.01.2010) and filing this case in Court on 03.06.2010 suggest that workman never intended to relinquish / abandon his services with the management. Workman himself is relying upon document Ex.WW1/7 (dated 05.12.2009) and Ex.WW1/8 (dated 30.12.2009). But on the basis of these documents it cannot be said that management really wanted to make the workman to rejoin his duties with the management in as much as the said letters also asked the workman, ".....to deposit Rs. 45,000/ (Rupees Forty Five Thousand only) immediately otherwise company will take legal action against you." and this Court has already observed that management has absolutely failed to establish on judicial file its stand as regards alleged embezzlement of funds to the tune of Rs.45,000/. Management has not even filed on record the alleged Page 13 to 17 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/25.04.2014 Arvind Ray Vs. M/s. G. K. Retail Pvt. Ltd. DID No. 156/10 letter dated 15.11.2009 and proof of its dispatch to the workman. In all likelihood letters Ex.WW1/7 and Ex.WW1/8 were issued by management after the visit of the labour inspector on 30.11.2009 pursuant to complaint of workman Ex.WW1/4 to the Assistant Labour Commissioner. Differences in the contents of Ex.WW1/4 and Ex.WW1/1, in the totality of facts and circumstances of this case, do not go to the root of the matter and do not rule out altogether the possibility of stand of workman regarding termination of his services by management on 20.11.2009 being true. There is no proof by the management that it paid minimum wages to workman @ Rs. 4377/ effective from 01.02.2009. Except a bald averment in the WS, nothing has been brought on record by the management that it provided all the legal facilities including minimum wages to the workman. Wages / salary register admittedly maintained by management has not been produced by management to show that it paid minimum wages to workman.
As regards alleged security deposit of Rs.40,000/ by the workman, MW1 Mr. Manish Saxena deposed that, "..... I have no knowledge about the alleged security of Rs. 40,000/ taken by the management from the workman....". Workman on oath deposed about security deposit of Rs.40,000/ by him with the management. MW1 Mr. Manish Saxena did not specifically denied the said depositions / averments of the workman but simply deposed about his ignorance about the said security deposit. In a way the said stand of workman can be said to have gone unrebutted. But Court cannot blindly believe such depositions to be true and correct. Normal course of human behaviour suggest that in the year 1991, workman could not have deposited Rs.40,000/ as security for getting the job / service like in the case in hand. It is not the case of workman that he was appointed as a stockist etc. by the management. Workman has not shown his capability to possess huge sum of Rs.40,000/ (as it was in the year 1991) in the year 1991. Also, it is pertinent to note that despite the stand of the management that it has not terminated / Page 14 to 17 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/25.04.2014 Arvind Ray Vs. M/s. G. K. Retail Pvt. Ltd. DID No. 156/10 retrenched the services of the workman, at no point of time during proceedings before this case, management offered the workman to rejoin his duties with the management. This also suggest that management never really intended that workman should be made to rejoin his duties with the management.
There is no dispute as regards workman completing not less than one year of continuous service with the management in terms of provision of section 25 F of the Industrial Disputes Act, 1947. Workman has, however, failed to prove violation of provisions of section 25 G and 25 H of the Industrial Disputes Act, 1947 for want of necessary pleadings as well evidence in this regard. Services of a workman can be terminated by management orally as well and there is no need that there has to be an order in writing terminating the services of workman.
In view of above detailed discussion, by applying the principle of preponderance of probabilities, it is observed that management has failed to establish on judicial file that workman voluntarily abandoned his services. Issue no.1 is decided against the management and issue no.2 is decided in favour of the workman. ISSUE No. 3: Relief, if any.
Workman in his cross examination has deposed as under: "...Presently I am living at Delhi with my wife in rented house and rent is approx. Rs.1000/pm. My total monthly expenditure is around Rs.2000/. Presently I am not doing any job however I have tried at Sharma Dairy and Kumar Dairy but failed to get the job because management has called not to take me on job. I went to Sharma Dairy and Kumar Dairy in the year Dec.'2009 and in the year 26.02.2011 I went to the Kumar Dairy for getting job.
Apart from two dairies I have tried to getting job one or two places but failed to get the job. Presently I am physically fit and sitting idle at my home. It is wrong to suggest that I am gainfully employed and I am Page 15 to 17 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/25.04.2014 Arvind Ray Vs. M/s. G. K. Retail Pvt. Ltd. DID No. 156/10 deposing falsely in this regard."
Management has not led any specific / positive evidence to show that as a matter of fact workman is gainfully employed. As per workman, he made efforts to search for fresh job after illegal termination of his services by the management but he was not successful in getting fresh job. Workman in the statementofclaim pleaded that he has no source of livelihood ('rojiroti'). Services of the workman, were terminated by management on 20.11.2009 and it has remained unexplained from the side of the workman that as to how he is able to meet expenses of his family from the date of termination of his services till date. In the totality of facts and circumstances of this case, it is observed that management has failed to prove the gainful employment of the workman and at the same time, workman has failed to show as to how he is able to meet the expenses of his family if he is totally unemployed and sitting idle at home. In such circumstances, the possibility of the workman being employed somewhere cannot be ruled out altogether. Accordingly, it is observed that workman is not entitled to full back wages. Also, keeping in view the issue raised herein by the management, it is observed that it would not be in the interest of cordial industrial relations between the management and workman to order for reinstatement of the workman in service with the management.
In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the tune of Rs.1,50,000/ (Rupees One Lac Fifty Thousand only) to the workman for illegal / unjustified termination of his services by the management and for consequences thereof / back wages would meet the ends of justice. If this amount of Rs.1,50,000/ (Rupees One Lac Fifty Thousand only) is not paid to workman within one month of publication of this award, management shall be liable to Page 16 to 17 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/25.04.2014 Arvind Ray Vs. M/s. G. K. Retail Pvt. Ltd. DID No. 156/10 pay interest @ 9% per annum on this amount from the date of the award till its payment. A sum of Rs.10,000/ (Rupees Ten Thousand only) is also awarded to workman as costs of litigation payable by the management.
9. A copy of the award be sent to Office of the Deputy Labour Commissioner (District West) for further necessary action.
10. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 25.04.2014
(ANAND SWAROOP AGGARWAL)
POLCXI, Karkardooma Courts, Delhi
Page 17 to 17 (ANAND SWAROOP AGGARWAL)
POLC - XI/KKD/DELHI/25.04.2014