Delhi District Court
Between The vs The on 9 June, 2022
IN THE COURT OF SH. LAL SINGH,
PRESIDING OFFICER, LABOUR COURT NO. 02,
ROUSE AVENUE COURTS, NEW DELHI.
LIR No. 1043/16
Date of Institution 04.02.2011
Date of Award 09.06.2022
BETWEEN THE WORKMAN
Sh. Dinesh Kumar
S/o Sh. Ram Swaroop,
R/o Plot No. 54, Sarai Saho, Palam, New Delhi-45.
Represented by Group-4, Falk Cash Service
Pvt. Ltd., Karamchari Union (Regd.), L-1st,
453/A, Budh Bazar, New Delhi-62.
.... Workman
Vs.
THE MANAGEMENT OF
1. M/s G4S Cash Services (India) Pvt. Ltd.,
Building No. 875/2(B-41-42),
Opp. CNG Pumping Station,
Mahipalpur, New Delhi-37.
2. M/s G4S Cash Service (India) Pvt. Ltd.
Through its Managing Director,
Registered Office at C-16,
Community Centre, Jankapuri,
Behind Janak Cinema, New Delhi-58.
.... Management
AWARD
1. By this award, I shall dispose of the reference sent to this
court by the Office of Deputy Labour Commissioner, South West
District, DTC Colony, Pratap Nagar, Hari Nagar, New Delhi-64,
LIR No. 1043/16 Page 1 of 39
Govt. of the National Capital Territory of Delhi, arising out
between the parties as mentioned herein above, vide notification
No.F24/(470)/10/SWD/Lab./9470-9474 dated 22.12.2010 with the
following terms of reference:-
"Whether the transfer of Sh. Dinesh Kumar S/o Sh. Ram
Swaroop from Delhi to Mangalore by the management is
illegal and/or unjustified, if so,to what relief is he entitled and
what directions are necessary in this respect?"
2. After receiving of the above reference, notice of the
reference was issued to the workman and thereafter, Authorized
Representative of the workman put his appearance and filed the
statement of claim on behalf of the workman.
3. In the statement of claim filed by the workman, it is averred
that he had been working with the M/s G4S Cash Services (India)
Pvt. Ltd. as a Mechanic since 18.06.2003 and his last drawn wage
was Rs. 6,500/- per month and his service record was good. It is
also averred by the workman that the management was earlier
known as Group 4 Securities Pvt. Ltd. and then known as Group 4
Falk Cash Services India Pvt. Ltd. and the management is well
known for its anti-labour and unfair labour practices such as denial
of double payment for extra work of over time after normal duty
hours, non issuance of appointment letters to the workers despite
of their oral requests, arbitrary withdrawal of existing benefits of
workers, victimization of workers by the way of transfer from
Delhi to other States/places with an eye to crush the union of the
workers, dismissal of workers from service on flimsy grounds
LIR No. 1043/16 Page 2 of 39
without complying the principles of natural justice and in
violations of various provisions of I.D. Act, implicating active
union minded workers in false police cases etc. It is also averred
that the Group 4 Falk Cash Services Pvt. Ltd. Karamchari Union is
a registered Trade Union of the workers of the management and
recognized by the management and the workman is an active
member of the union and in the forefront of several peaceful
agitation in support of the demands of the workers and this was
not liked by the management. It is further averred that some
officers of the management asked the workman to leave the union
activities, but the workman refused to leave the union or not
resigned from the union and this was not liked by the
management. It is further averred that the management wanted to
implement its own anti labour policies and also wanted to curtail
certain existing benefits of the workers like discontinue of dinner
allowances after 10:00 p.m., discontinue of conveyance charges of
workers after 10:00 p.m., transfer of unionized workers from
Delhi to other States/places etc., but the union did not agree to the
management's new proposed policy/agenda. It is further averred
that this decision was taken by the union with the consent of
workers/its members and informed the management during the
meeting with the management and this was not liked by the
management and angered the management and hence, the
management stepped up its activities against the workmen of
Delhi to remove them from service in colorful manner. It is further
averred by the workman that in a deep rooted plan to put blame on
workers/union, with an eye to remove the old workers from
service, management slowly diverted its cash business to private
LIR No. 1043/16 Page 3 of 39
security agencies and on the other side calling the union/workers
for negotiations on an eight point agenda and the said agenda was
to curtail certain existing benefits of the workers of Delhi and
transfer the workers from Delhi to other States, which was never a
part of their service condition. It is further averred that the
management was not having any service rules, regulations or
having any certified standing orders to regulate the service
conditions of the workers at Delhi. It is also averred that the union
with the consultation of their members/workmen of Delhi,
opposed the proposed agenda of the management and informed the
management that the union is a progressive union and willing to
work out a mutual solution through negotiations with the
management across the table and submitted a proposal to this
effect to the management. However, cleverly, the management on
one hand having negotiations with the union for the name sake
and on the other hand was planning to demolish the union by the
way of cooking up false cases on some of the active members of
the union behind their back with the help of the local police and
was hatching plan to remove the existing workers from Delhi by
hook or crook, so that they can put fresh workers in place of old
workers through private contractors on the dictated terms of the
management.
4. It is further averred that on 01.05.2010, management
supplied a letter of management's agenda to the union, though in
the said letter name and address of the union was not mentioned
intentionally and the management wanted to implement/inject new
conditions on the workmen and also wanted to curtail certain
LIR No. 1043/16 Page 4 of 39
existing benefits of the workers. It is further averred that the union
did not fully agree with the management but for cordial relations,
union agreed certain proposed new conditions and the same was
informed to the management vide letters dated 06.05.2010 and
07.05.2010, but the union totally disagreed with the management's
proposed agenda/ change of service condition of transferring the
workers from Delhi to other States/places and union informed the
management that if any individual workmen were willing to go to
other State/places/ home town, on their own willing, they are free
to choose the same. It is further averred that in the meantime, the
management slowly diverted its cash business to private
contractors and deployed the private contract workers in place of
permanent workers of the management and when he reported for
duty on 12.05.2010, he (workman) found the office gate of the
management was locked and number of workers were standing
outside the company for joining duty and an unsigned handwritten
notice was found pasted on the gate of the office of the
management stating that the company is closed with immediate
effect. It is also averred that even the said notice was not either on
the letter head of the management nor any seal was put on the
same. It is further averred that the workman and others co-
workmen could not join duty since 12.05.2010 onwards due to
illegal lock out and the office bearers of the union tried to speak
to the management through telephone, but no one from the
management was ready to talk and as such the union lodged a
complaint with Deputy Labour Commissioner, South West,
Labour Office, Hari Nagar, New Delhi on 13.05.2010 for
declaring the lock out as illegal and initiation of prosecution
LIR No. 1043/16 Page 5 of 39
proceedings against the Managing Director and other official of
the management. It is further averred that the union had also sent a
telegram to the Managing Director of the management on
14.05.2010 thereby urging him to lift the illegal lock out of
Mahipalpur and Jhandewalan offices of the management and he
was also informed that the workers were daily reporting for duty,
but the management was not allowing them to resume duty. It is
also averred that the Managing Director was also informed that the
management was forcibly opening ATMs Machines to implicate
workmen in false cases. Thereafter, a telegram was also sent by
the union to the Labour Commissioner of Delhi on 14.05.2010 and
the Commissioner of Police was also intimated vide telegram
dated 14.05.2010 that the management was forcibly opening ATM
counters/machines with duplicate keys with an eye to implicate the
workers in false cases.
5. It is further averred that the Union also sent another letter
dated 18.05.2010 to the Managing Director of the company
through registered post, informing him again that the workmen of
the Mahipalpur and Jhandewalan offices were reporting daily for
duty since 12.05.2010 but the management was not allowing them
to resume duty and illegally locked out the office and he was also
informed that some workers were having ATM vault key and
combination password and they were willing to hand over the
same to the management and requested to send some senior
officers/personnel of the management, so that they can hand over
the same to the management, but none from the management came
forward to collect the same. It is also averred that the union had
LIR No. 1043/16 Page 6 of 39
informed the Managing Director of the company through
registered letter dated 18.05.2010 that some of the management
personnel were breaking the ATM cash vault and hood cover lock
with an intention to implicate custodian category employees in
false cases and through the said letter it was specifically informed
that no senior officials of the management came forward to collect
the key/combination and hence, they could not hand over the same
and further this cannot be handed over to a guard or a third party
because of its security reasons. It is further averred that the union
had also informed the SHO P.S. Vasant Kunj through letter dated
18.05.2010 that the workers were willing to hand over the ATM
vault key and password to the management but the management
was not taking the same from the workmen with an intention to
implicate them in false police cases. Further, on the complaint of
the union about illegal lock out by the management, some officials
from Hari Nagar, Labour Office had visited Mahipalpur office of
the management on 18.05.2010 and found the office locked and no
officials were present in the office. It is further averred that upon
this the official from labour office pasted a notice on the gate of
the office of the management, thereby calling the management to
attend a meeting with Deputy Labour Commissioner, Hari Nagar,
New Delhi on 20.05.2010 at 12:00 noon but none from the
management attended the meeting despite of their knowledge of
meeting.
6. Workman also averred that on 28.05.2010, he was surprised
to receive a back dated letter dated 15.05.2010 from the
management informing that his services had been transferred from
LIR No. 1043/16 Page 7 of 39
Delhi to Mangalore due to indiscipline etc. The workman
contended that it was not because of any exigencies of work at the
transferred place but it was issued with an eye to victimize and
harass him, because of his support to the union on eight point
agenda of the management. Workman also averred that all the
allegations levelled against him were specifically denied by him
vide reply dated 15.06.2010 and he again requested the
management to withdraw the illegal back dated transfer letter and
allow him to resume duty at Delhi. It is further averred that the
management had issued about 400 such back dated transfer letters
to the workers and also issued more than 100 dismissal orders to
the workers in utter violations of principle of natural justice. It is
also stated that against the illegal transfer of workers, they had
requested the union to take up their case at the appropriate forum
and the union officials requested the management to stop the
victimization of workers and urged the management to take the
workmen back on duty at Delhi but there was no response from
the management. It is also averred that thereafter, the executive
committee of the union passed a resolution in its Executive
Committee meeting regarding the illegal transfer of the workmen
from Delhi to other States en-mass by the management and
unanimously authorized the union to file case on behalf of the
workers before the appropriate forum including courts. It is further
averred that the executive committee had also urged Sh. Mohan
Nair, executive member of the union to file the case on behalf of
affected workmen, before the appropriate forum and consequently,
the case was filed before Conciliation Officer at Hari Nagar, where
the matter could not be resolved. It is further averred that the
LIR No. 1043/16 Page 8 of 39
workman is unemployed since refusal of his duty at Delhi by the
management and he could not get any job despite of his best
efforts.
Thus, the workman has prayed that an award be passed in
his favour thereby directing the management to recall its back
dated transfer letter dated 15.05.2010 and allow him to resume
duty at Delhi with continuity of service with all consequential
benefits and also declare the act of the management as illegal and
unjustified.
7. The management has contested the case and filed written
statement to the statement of claim of the workman. However,
after that an application under Section 11 (1) of the ID Act, read
with Order 6 rule 17 CPC for amendment of Written statement
was filed by the management and said application was allowed
vide order dated 21.03.2017. Thereafter, the management has filed
amended written statement. In the amended written statement,
management has taken various preliminary objections including
that the claimant after having been transferred to Manglore on
account of exigency of service and administrative requirement in
accordance with the conditions of employment, has failed to join
his duties at the transferred place as advised vide transfer letter
dated 15.05.2010 issued by the management to him. It is further
contended that the claimant was absenting from his duties
unlawfully and unauthorizedly and thus seriously violated the
terms and conditions of the employment and this Court may
kindly direct him (claimant) to join his duties at the transferred
LIR No. 1043/16 Page 9 of 39
place immediately. It is further contended that a dispute raised
against a bonafide transfer of an employee which is otherwise an
essential and incidental condition of employment, is not an
industrial dispute as defined under section 2 (k) of the Industrial
Disputes Act, 1947, therefore, the present claim whereby the
claimant has disputed the bonafide transfer order, is not
maintainable. It is further contended by the management that the
present claim of the claimant is not maintainable also for the
reason that the same is not properly espoused as required under the
provisions of Industrial Disputes Act, 1947 and the alleged union
as mentioned above has no locus standi to file the present claim on
behalf of the claimant before this Court as the said union has no
representation amongst the workers of the management. It is also
contended by the management that as the cause of claimant has
not been properly espoused and hence, the same is liable to be
rejected on this ground alone. It is also contended that the claimant
alongwith other workers have taken the business of the
management to ransom and by their continued unlawful acts have
caused serious business loss to the management to the extent that
the customers of the management were forced to withdraw their
business including the ATMs from the management, with the
result the post and position on which the claimant was working no
longer exists. However, though there is no vacancy available for
the claimant in NCR, the management as a model employer to
ensure that the claimant does not get affected, accommodated him
and transferred him to Manglore vide its letter dated 15.05.2010
but the claimant instead of realizing about his acts, did not join his
duties at the transferred place and continued to indulge in illegal
LIR No. 1043/16 Page 10 of 39
acts and is still doing so by harassing the management by
approaching this Court with false and frivolous allegations/
complaints against the management.
8. It is further contended in the written statement of the
management that keeping in view the nature of business of the
management and having regard to commercial necessity, the
claimant had been transferred as per the transfer clause of letter of
appointment which is reproduced as under:-
"THAT THE COMPANY SHALL HAVE ABSOLUTE RIGHT AND
DISCRETION TO SHIFT AND/OR TRANSFER YOU FROM ONE
SITE/PREMISES TO ANOTHER, WHETHER LOCATED IN DELHI
OR OUTSIDE, IF THE EXIGENCIES OF WORK OF THE
COMPANY SO DEMANDS. REFUSAL TO CARRY OUT SUCH
ORDERS SHALL CONSTITUTE GROSS MISCONDUCT FOR
WHICH YOUR SERVICES SHALL BE LIABLE TO BE
TERMINATED".
9. It is further contended by the management in the written
statement that the respondent/management had the right and
discretion to carry out its operation as per requirement from time to time and having regard to the respondent's rights, the claimant was transferred on 15.05.2010 due to the circumstances created by the employees themselves, as explained above and keeping in view the administrative requirement and exigencies of work. It is further contended that it is only after the transfer from one place to another, the alleged union made false complaints and forced the willing workers not to join at the transferred place and there is no bar in law that the management cannot transfer the workers in LIR No. 1043/16 Page 11 of 39 view of the express terms of employment with regard to transfer. It is also contended that the union made an attempt to destroy the industrial peace and smooth operation of the company by making false allegations. The transferred employees, instead of joining at the transferred place, filed false and frivolous case. It is further contended that the management presented true and correct position before the Labour Authorities as regards to express conditions of employment and transfer being legal, valid and justified in all respect and the management advised the workers through the Labour Department, to report for duties at the transferred place and the claimant is free to join at the transferred place in accordance with the order of transfer dated 15.05.2010. It is also contended that keeping in view, the express conditions of employment with regard to transfer of services from one place to another, the whole terms of reference and the result proceedings are bad in law.
10. The management has also denied that the service record of the claimant during his employment with the management had been good. It is also denied that the management indulged in anti labour or unfair labour practices as alleged. It is contended that the management is a highly law abiding entity and religiously complies with all the laws of land and affords each and every facility to its employees to which they are entitled to under labour laws. It is also denied that the management had arbitrarily withdrawn any existing benefits as alleged. It is reiterated by the management that the services of the claimant have been transferred due to the exigencies of work, administrative LIR No. 1043/16 Page 12 of 39 requirement and in accordance with the terms and conditions of the employment and the same is legal, valid and justified in all respect and the allegations regarding dismissal of the workmen from services and implication in police cases is without any basis and have no substance and seems to have been made with a view to prejudice this Court and the fact remains that the claimant has failed to report for duties at the transferred place and was absenting unauthorisedly. The management also contended that the proposed agenda was just to streamline the business activities of the management. Further, management specifically denied that on 12.05.2010, when the claimant reported for duty, the claimant found the office gate of the management locked or that the workers were standing outside the company. It is also denied by the management that the said union is either registered or recognized by the management. It is contended that union does not represent the substantial number of the employees of the management and the said union does not have any locus standi to take up any cause of employees of the management including the present claimant. It is also denied that the management under any plan slowly diverted its cash business to private security agencies as alleged. It is also specifically denied by the management that there was any lock out on 12.05.2010 or that because of any illegal lockout the claimant could not join office. The management in its written statement has also denied the other averments of the statement of claim as made by the claimant and prayed that the claim of the claimant be dismissed.
LIR No. 1043/16 Page 13 of 3911. The claimant/workman has filed the rejoinder to amended written statement of the management, in which he denied all the contents of the written statement and he reiterated and reaffirmed the contents of the statement of claim and prayed that each and every averments, contents, preliminary objections of para 1 to 7 and parawise reply of para 1 to 18 of amended written statement of the management be dismissed and pass an award in favour of the workman directing the management to recall its back dated transfer letter/order and reinstate the workman at Delhi with all consequential benefits.
12. Vide order dated 24.01.2012, Ld. Predecessor Court framed following issues:-
1. As per terms of reference.
2. Whether the claim of the workman has been validly espoused? Onus on parties.
3. Relief.
13. In the instant matter, in support of his claim, the workman Sh. Dinesh Kumar has examined himself as WW1 and also examined Sh. Ramji Pandey as WW2 and Sh. Manoj Kumar as WW3.
14. Workman Sh. Dinesh Kumar, who was examined as WW1 has tendered his evidence by way of affidavit vide Ex.WW1/A and in his evidence, he has reiterated all the facts as mentioned in his statement of claim. The workman has also relied upon the documents i.e. copy of transfer letter dated 15.05.2010 vide LIR No. 1043/16 Page 14 of 39 Ex.WW1/1, copy of representation/demand notice by the workman to the management to withdraw transfer letter vide Ex.WW1/2, postal receipts vide Ex.WW1/3, copy of agenda dated 01.05.2010 of the management vide Ex.WW1/4, copy of undated letter of the management addressed to the union vide Ex.WW1/5, copy of reply dated 07.05.2010 of the union to the agenda of the management vide Ex.WW1/6, copy of reply dated 06.05.2010 of the union to the agenda of the management vide Ex.WW1/7, copy of complaint dated 13.05.2010 by the union to the Dy. Labour Commissioner against the management for illegal lock out vide Ex.WW1/8, copy of complaint by the union to the Commissioner of Police, I.P. Estate, New Delhi vide Ex.WW1/9, copy of complaint by the union to the Managing Director of the management vide Ex.WW1/10, copy of complaint by the union to the Labour Commissioner against the management vide Ex.WW1/11, copy of postal receipts vide Ex.WW1/12, copy of complaint by the union against the management to SHO P.S. Vasant Kunj dated 13.05.2010 vide Ex.WW1/13, copy of complaint dated 18.05.2010 by the union to the Managing Director of the management vide Ex.WW1/14, copy of notice dated 18.05.2010 issued by the labour officer to the management against alleged illegal lock out w.e.f.12.05.2010 vide Ex.WW1/15, copy of the notice dated 18.01.2011 of the union regarding extract of the minutes of the union held on 27.05.2010 vide Ex.WW1/15, copy of registration certificate of the union vide Ex.WW1/16 and copy of letter dated 14.03.2011 of the union regarding annual return of the union for the year 2010 along with list of office bearers for the year 2011-2012 vide Ex.WW1/17.
LIR No. 1043/16 Page 15 of 39It is pertinent to mention here that two documents i.e. copy of notice dated 18.05.2010 issued by the Labour office to the management against illegal lockout w.e.f. 12.05.2010 as well as copy of notice dated 18.01.2011 of the union regarding extract of minutes of meeting of the union held on 27.05.2010, were both given Exhibits Number as Ex. WW1/15. Therefore, the document i.e. copy of notice dated 18.01.2011 of the union regarding extract of minutes of meeting of the union held on 27.05.2010 may be read as Ex.WW1/15A only for the purpose of separate identification of the said document.
15. In his cross examination, the workman has deposed that he had been working with the management since 2003 as Driver and he had given an application for employment to the management at the time of his appointment. He has further deposed that he was not issued any appointment letter by the management and he had not asked for the letter of appointment in writing to the management at any point of time. In his cross examination, WW1 admitted that he was provided with the benefits of ESIC, PF and annual leave by the management during his service tenure. Workman/WW1 also admitted that documents Ex.WW1/4 to Ex.WW1/17 do not bear his signatures and they are not addressed to him. Further, in his cross examination, WW1 deposed that he became the member of the union since the beginning of his services with the management. However, he has not filed any document to show that he was the member of the union. He has also deposed that prior to the demand notice Ex.WW1/2, he had never written to the management personally complaining of LIR No. 1043/16 Page 16 of 39 violation of any condition of service or raising any demand of Industrial relations. He also stated that he was transferred from Delhi to Mangalore. Workman/WW1 has denied the suggestion that his services were transferred as per terms and conditions of his appointment or that the same was legal and justified. WW1/Workman has admitted that application for employment Ex.WW1/M1 bears his signatures at point X1 and the nomination and declaration form Ex. WW1/M2 also bears his signatures at points X2. WW1/Workman specifically deposed in his cross examination that the contract of employment Mark WW1/M3 does not bear his signature at point A. He has also denied the suggestion that his services were transferred in accordance with the contract of employment Mark WW1/M3 and due to exigencies of work and administrative requirement of work.
16. Workman/claimant has also examined Sh. Ramji Pandey as WW2. Sh. Ramji Pandey, WW2 has filed his evidence by way of affidavit vide Ex.WW2/A. He has relied upon all the documents as relied by WW1.
In his cross examination, WW2 has deposed that union M/s Group 4 Falk Cash Services Karamchari Union was formed in the year 2005 and in April, 2010, the election for the union was held and at the time of election about 500 employees were present at the ground adjacent to Mahipalpur Shamshan Bhumi. In his cross examination, he admitted that he had not placed the list of 70 employees alleged to have been dismissed on 15.05.2010 or that he has also not placed on record the list of 300 employees alleged LIR No. 1043/16 Page 17 of 39 to have been transferred. WW2 denied the suggestion that no meeting of the union took place regarding transfer of employees as mentioned in para 3 of his affidavit. He further denied the suggestion that the transfer of the employees were done due to exigencies of work and administrative requirement and in accordance with the conditions of service applicable to them.
17. The workman has also examined Sh. Manoj Kumar as WW3 in his evidence. Sh. Manoj Kumar WW3 has tendered his evidence by way of affidavit vide Ex.WW3/A and he relied upon the documents i.e. copy of receipt of union dated 20.05.2010 vide Ex.WW3/1 and copy of list of termination (DID) cases pending for adjudication before Labour Court vide Ex.WW3/2 (colly).
In his cross examination, WW3 admitted that the document Ex.WW3/2 (colly) does not bear his signatures at any place and the document Ex.WW3/1 was not prepared by him. He has stated that the said documents were made before his appointment as Treasurer of the union. In his cross examination, WW3 denied to the suggestion that services of workmen were transferred to various locations in accordance with the conditions of employment and exigencies of work.
18. On the other hand, the management had examined three witnesses i.e. Sh. Sanjeev Taku, AR of the management as MW1, Sh. Ravi Kumar, Personnel Officer of the management as MW2 and Sh. Praveen Roy, Vice President of the management as MW3.
LIR No. 1043/16 Page 18 of 3919. Sh. Sanjeev Taku (MW1) has tendered his evidence by way of affidavit vide Ex.MW1/A and he also relied upon the documents vide Ex. MW1/1 i.e. copy of contract of employment between the workman and the management and transfer letter dated 15.05.2010 vide Ex.MW1/2.
He was cross examined by the Authorized Representative of the workman. In his cross examination MW1 admitted that M/s G4S Cash Services India Pvt. Ltd and M/s G4S Cash Solutions India Pvt Ltd, both registered under the provisions of Companies Act. He also stated that both are one and same company and only the change of name is there. In his cross-examination, he denied the suggestion that the management did not issue appointment letter to workman. MW1 also denied the suggestion that management never informed the workman regarding the terms and conditions of the employment at the time of appointment or that workman was informed at the time of his appointment that he was being appointed for Delhi region. He admitted that before the issuance of transfer letter to workman, no chargesheet was issued to the workman. He also denied to the suggestion that transfer letter was issued to the workman as a punishment to workman or that there did not exist exigencies of work and administrative requirement of services of the workman at the transferred place. Further, in his cross examination MW1 admitted that the management did not conduct any domestic inquiry against the workman regarding alleged indiscipline as mentioned in the transfer letter. MW1 also admitted that management did not issue LIR No. 1043/16 Page 19 of 39 any chargesheet against the workman for not joining the duties at the transferred place.
20. Management also examined Sh. Ravi Kumar as MW2. Sh. Ravi Kumar MW2 had tendered his evidence by way of affidavit vide Ex. MW2/A and he also relied upon the documents already filed and exhibited as Ex. MW1/1 and MW1/2.
In his cross examination MW2 denied the suggestion that workman was not supplied with copy of appointment letter. MW2 admitted that as on 01.04.2009 M/s G4S Cash Solutions India Pvt. Ltd. was not even in existence. However, he stated that at the time M/s G4S Cash Services India Pvt. Ltd. was existed.
21. Management has also examined Sh. Praveen Roy as MW3. Sh. Praveen Roy, MW3 has tendered his evidence by way of affidavit vide Ex. MW3/A and he relied upon the documents Ex. MW3/1 i.e. copies of PF contribution statement and Ex. MW3/2 i.e. copies of ESI record/statement.
In his cross examination, MW3 stated that he does not remember as to when the name of M/s G4S Cash Services India Pvt. Ltd. was changed to M/s G4S Cash Solutions India Pvt. Ltd. MW3 admitted that the appointment letter of the concerned workman was not issued in his presence.
22. Arguments of Ld. AR for the workman and Ld. AR for the management heard and they have also filed their respective written submissions/arguments.
LIR No. 1043/16 Page 20 of 3923. Ld. AR of the workman submitted that the workman had been working with the management of M/s G4S Cash Services India Pvt. Ltd. as Mechanic since 18.06.2003 and his last drawn wage was Rs. 6,500/- per month and service record of workman was good. He also submitted that Group 4 Falk Cash Service Pvt. Ltd. Karamchari Union is a registered and recognized Trade Union of workers of the management and the workman was an active member of the union. He also argued that the case of the workman has been espoused through his union. Further, no appointment letter was issued to the workman by management. He also argued that transfer order issued by the management to the workman was illegal, malafide, just to victimize the workman because of his not accepting the eight point agenda of the management including transfer conditions. AR of the workman submitted that workman is entitled for his reinstatement in service at Delhi with all consequential benefits.
24. On the other hand, Ld. AR of the management submitted that in view of nature of business of the management and having regard to commercial necessity, the claimant had been transferred as per transfer clause of letter of appointment and further the claimant after having been transferred to Mangalore on account of exigency of service and administrative requirements in accordance with condition of employment, failed to join his duties at the transferred place and hence his claim is not maintainable. He also submitted that the cause of the claimant needs to be espoused and in absence of the same the case is liable to be dismissed.
LIR No. 1043/16 Page 21 of 3925. I have considered the above submission of Ld. AR of workman as well as Ld. AR of the management and also given thoughtful consideration to their respective written submissions and also carefully perused the file and gone through the evidence on record.
26. My issue wise finding are as under:
Firstly, I shall deal with issue No.2.
Issue No.2: Whether the claim of the workman has been validly espoused ? Onus on both the parties.
Onus to prove this issue was upon both the parties. In the instant matter, the management had taken the defence that the present claim petition is not maintainable because the same is not properly espoused as per provisions of ID Act, 1947. It is the contention of the management that the alleged union has no locus standi to file the present claim on behalf of the claimant/workman. However, the workman has vehemently opposed the said contention of the management and the workman has contended that the claim of the workman has been properly espoused by his union and the union has locus standi to raise the claim of the workman as the Group 4 Falk Cash Service Pvt. Ltd. Karamchari Union is a registered and recognized Trade Union of the workers of the management and the workman was an active member of the union.
So as to prove its contention on this issue, the workman has examined WW-2 Sh. Ramji Pandey. In his cross examination by the management, WW-2 specifically deposed that in the year 2010 LIR No. 1043/16 Page 22 of 39 election for union was held in April, 2010 and at the time of election about 500 employees were present at the ground adjacent to Mahipalpur Shamshan Bhumi. However, he cannot tell the date on which the said election took place. WW-2 also stated that the members were informed orally as well as through phone and letters, however, he has not placed on record any copy of such letters. He also deposed that he does not remember as to who was the returning officer of the election in the year 2010 and also whether any meeting of executive committee of union took place prior to the election to decide the election of the union. He specifically deposed that in April 2010 election, meeting attendance of members present was marked. He further stated that in 2010 Mr. K. C. Kumar was general secretary of the union and Mr. Satinder Kumar Singh was president of the union. He further stated that the union does not get any membership form filled from any worker when he becomes a member of the union and only a slip is filled and issued to the member. He further deposed that the union has got its bye laws and during his evidence he has produced the copy of bye laws /copy of Constitution of the Union vide Ex. WW-2/M1X. WW2 Sh. Ramji Pandey also deposed that he had filed copy of elected members/office bearers in the year 2010. In his cross examination he denied the suggestion that no meeting of union took place regarding transfer of employees as mentioned in para no.3 of his affidavit and that is why no date, time and venue has been mentioned or that the transfer of employees was done due to exigencies of work and administrative requirements and in accordance with service conditions applicable to them. He admitted that the workers working with the LIR No. 1043/16 Page 23 of 39 management were getting ESI and PF facilities from the management. WW-2 also stated that in the year 2005 to 2010, there were about 450 to 500 workers as members of the union. He also admitted that he has not placed on record the copies of receipt if any, issued to any worker while becoming member of the union or that he has not placed any documentary proof to show that claimant was a member of the union. He also admitted that that he has not placed on record the records of the meetings of the union for the period 2010, 2011 and 2012 except dated 11.04.2010.
Further, the workman also examined WW-3 Manoj Kumar, who in his cross examination by management deposed that election of the union took place in the month of November, 2010. In response to a question put by the AR of the management to state as to how notice of election was given to the workers in the year November, 2010, WW-3 stated that notice was given verbally to worker and one Sh. Manveer Singh was the returning officer.
It is the contention of the AR of the management that the cause of the claimant needs to be properly espoused, whereas in the instant matter the cause of the claimant has not been properly espoused and in the absence of the same, the present case is liable to be dismissed.
27. In support of his above contention Ld. AR of the management has relied upon the judgment titled as Lord Krishna Textile Mills/National Textile Corpn. Ltd. Vs Rampal Singh 2015 LLR 747, wherein the Hon'ble High Court Delhi, held as under:-
LIR No. 1043/16 Page 24 of 39"21. A perusal of this Section shows that the dispute regarding discharge, dismissal, retrenchment or termination of the workman and any dispute or difference between that workman and his employer connected with or arising out of such discharge, dismissal, retrenchment or termination is deemed to be an industrial dispute under Section 2A(1) of the ID Act notwithstanding the fact that no other workman nor any union of workmen is a party to that dispute. Further, as per sub-section 2 of Section 2A of the ID Act, such a workman as aforementioned is empowered to directly approach the labour court or a tribunal for adjudication of the dispute as referred in section 2A(1). However, in the cases of disputes not falling under sub-section 1 of the said section the position is the same as that before the 1965 amendment. For the disputes not covered under section 2A (1) of the ID Act, its espousal must still be through a Union or a substantial number of fellow workmen".
Further, AR for the management also relied upon the judgment titled as Hira Singh Vs. Management M/s Hotel Samrat & others, passed by Hon'ble High Court of Delhi in LPA No. 171& 172/2007, wherein it was observed as under:-
"15. There is, thus, normally a need to prove the espousal by way of resolution. Reason is simple. Union/Association is also a body of workmen which may be a registered body and is to act in accordance with its rules, regulations and byelaws. It thus follows that whenever it has to act for cause which is to be taken up, there has to be a resolution in the Executive Committee to this effect. Else it is to be shown by the Secretary or President who has given LIR No. 1043/16 Page 25 of 39 the demand notice or sign the claim etc. that there is a general authority given to him by the Executive committee to take up such causes. ... "
In the Hira Singh's Judgment (Supra), it was further observed as under:-
"..it was a common case of the parties that the issue of regularization is not covered by Section 2A of the Industrial Disputes Act and therefore, it needed espousal of the union.."
28. However, on the other hand, Ld. AR for workman has relied upon judgment titled as Batra Hospital Employees Union Vs. Batra Hospital & Medical Research, passed by Hon'ble High Court of Delhi in W.P (C) No.5349/2004 decided on 22.01.2018, wherein it was held that:-
"24. As such, espousal, either by the Union or by a substantial number of workmen in the establishment concerned, would be sufficient to elevate the dispute to the status of an "industrial dispute". In the present case, as the registered union of the workmen of the respondent-Hospital had initiated the industrial dispute, the requirement of an "espousal" is clearly satisfied. That apart, there is, on record, a note, in vernacular, stating that, on 28th June 1999, a meeting of the Executive Committee of the petitioner Union met and decided that, as the Management of the respondent-Hospital had refused to pay bonus, a dispute, in that regard, be instituted in the Labour Court.
25. Mr. Manish Sharma relies on a judgment of a learned Single Judge of this Court, in Management of M/s Hotel Samrat v G.N.C.T., 136 (2007) DLT 290, to support his contention that the LIR No. 1043/16 Page 26 of 39 industrial dispute, in the present case was not properly espoused. He has specifically drawn my attention to paras 8 to 14 of the said judgment. A reading of the said paras, however, reveal that they do not advance the case of the respondent to any extent. Rather, the learned Single Judge, in the said decision relied on J.H. Jadhav (supra) but held that, as it was a lone workman who had sought to raise the dispute, the cause suffered from want of proper espousal. The present case is obviously distinguishable".
26. Clearly, therefore, the contention of Mr. Manish Sharma that the dispute in the present case, suffered from want of the requisite "espousal", has no legs to stand on.
27. Before closing the discussion on Mr. Sharma's preliminary submissions and embarking on an analysis of the merits, it would be worthwhile to revisit the following words of V. R. Krishna Iyer, J., in Mumbai Kamgar Sabha v. Abdul Bhai Faizal Bhai, (1976) 3 SCC 832, which bear his indelible imprint:-
"7 Fairness to respondent's Counsel constrains us to consider in limine a flawsome plea forcibly urged that the union figured as the appellant before us but being no party to the dispute (which was between the workers on the one hand and the establishments on the other) had no locus standi. No right of the union qua union was involved and the real disputants were the workers. Surely, there is terminological lapse in the cause title because, in fact, the aggrieved appellants are the workers collectively, not the union. But a bare reading of the petition, the description of parties, the grounds urged and grievances aired, leave us in no doubt that the battle is LIR No. 1043/16 Page 27 of 39 between the workers and employers and the union represents, as a collective noun, as it were, the numerous humans whose presence is indubitable in the contest, though formally invisible on the party array. The substance of the matter is obvious and formal defects, in such circumstances, fade away. We are not dealing with a civil litigation governed by the Civil Procedure Code but with an industrial dispute where the process of conflict resolution is informal, rough-and-ready and invites a liberal approach. Procedural prescriptions are handmaids, not mistresses, of justice and failure of fair play is the spirit in which courts must view processual deviances. Our adjectival branch of jurisprudence, by and large, deals not with sophisticated litigants but the rural poor, the urban lay and the weaker societal segments for whom law will be an added terror if technical mid descriptions and deficiencies in drafting pleadings and setting out the cause title create a secret weapon to non- suit a party. Where foul play is absent, and fairness is not faulted, latitude is a grace of processual justice. Test litigations, representative actions, pro bono publico and like broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to bypass the real issues on the merits by suspect reliance on peripheral procedural shortcomings. Even Article226, viewed in wider perspective, may be amenable to ventilation of collective LIR No. 1043/16 Page 28 of 39 or common grievances, as distinguished from assertion of individual rights, although the traditional view, backed by precedents, has opted for the narrower alternative. Public interest is promoted by a spacious construction of locus standi in our Socio-economic circumstances and conceptual latitudinarianism permits taking liberties with individualisation of the right to invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker. Less litigation, consistent with fair process, is the aim of adjectival law. Therefore, the decisions cited before us founded on the jurisdiction under Article 226 are inept and themselves somewhat out of tune with the modern requirements of jurisprudence calculated to benefit the community".
29. It is the contention of the workman that when the management issued transfer letter, then he alongwith other workers approached to Group 4 Falk Cash Services Pvt. Ltd., Karamchari Union and the said union after consultation with the workers and holding a meeting, passed a resolution regarding the illegal transfer of the workman and other workers and thereafter, they approached to the Conciliation Officer of the Labour Department. The workman so as to prove that there was a resolution dated 27.05.2010, has placed on record the copy of the notice dated 18.01.2011 of the union regarding extract of the minutes of the union held on 27.05.2010 vide Ex.WW1/15 (Ex.WW1/15A). Moreover, the management addressed letters to the abovesaid union to give reply to its above mentioned Eight LIR No. 1043/16 Page 29 of 39 Point Agenda. Further, it has also come on record that it was the same union which had sent complaint dated 13.05.2010 against the management to the Dy. Labour Commissioner against illegal lock out since 12.05.2010 onwards. Moreover, the abovesaid union also made a complaint to Commissioner of Police against the management alleging that the management was operating ATMs with duplicate keys with an eye to implicate the workers in false cases. Further, the abovesaid union also sent various complaints to the concerned authorities including the management. Thus it is amply clear that the abovesaid union had been taking up the cause of workers and moreover, the management had been also interacting/communicating with the said union since the very beginning of the dispute between the workers and the management.
Though, the workman has not placed on record copy of resolution passed by the executive committee of the union on 27.05.2010. However, considering all the above facts and circumstances and also in view of the judgment relied upon by the workman in case titled as Batra Hospital Employees Union Vs. Batra Hospital & Medical Research(Supra), it has been established that the abovesaid union had been taking up the cause of the workman alongwith other co-workers from the very beginning of the dispute between the workmen and the management. Moreover the Group 4 Falk Cash Services Pvt. Ltd. Karamchari Union, was registered union, vide registration certificate Ex.WW1/16 and its Executive Committee also held a meeting against illegal transfer of the workers of the management. Thus, considering all the above LIR No. 1043/16 Page 30 of 39 facts and circumstances and material place on record and also in view of the law laid down in aforesaid judgment relied by the workman, it is held that the workman has successfully proved that his claim/cause has been validly espoused.
So far as, the judgments relied upon by the Ld. AR for the management are concerned, same are of no help to the management in any manner, particularly, in view of the abovesaid discussion. Thus, accordingly, the Issue no.2 is decided in favour of the workman and against management.
30. Now, I shall deal with issue No.1.
ISSUE NO. 1: As per the terms of reference.
The onus to prove this issue was upon the workman and it is for him to prove that his transfer from Delhi to Managlore by the management was illegal and/or unjustified. It is the case of the workman that he was appointed as Mechanic by the management since, 18.06.2003 and he was illegally transferred from Delhi to Mangalore by the management. In his cross examination also workman/WW1 has deposed that he had been working with the management since 2003 as Driver and he had given an application for employment to the management at the time of his appointment. However, he was not issued any appointment letter by the management and he had not asked for the letter of appointment in writing to the management at any point of time. In his cross examination, workman/WW1 admitted that his services were transferred from Delhi to Mangalore. WW1/workman also denied LIR No. 1043/16 Page 31 of 39 to the suggestion that his services were transferred as per the terms and conditions of his appointment or that the same was legal and justified. During his cross examination, Ld. AR for management had shown certain documents to the workman i.e. application for employment, nomination and declaration form and contract of employment. The workman admitted his signatures on application for employment Ex.WW1/M1 at point X1 and nomination and declaration form Ex.WW1/M2 at point X2. However, WW1/ workman specifically denied that his services were traferred in accordance with contract of employement Mark WW1/M3. He categorically stated the contract of employment Mark WW1/M3 does not bears his signatures at point A. It is pertinent to mention here that in the statement of claim, workman has averred that he had been working with the management as a Mechanic, since 18.06.2003, whereas in his cross examination he deposed that he was working with the management since 2003 as Driver. However, in the written statement, the management has not specifically stated whether the workman was engaged as a Mechanic or as a Driver with the management. Moreover, in the application for employment Ex.WW1/M1, the post applied by the workman has been mentioned as Mechanic and the workman/WW1 has admitted his signatures at point X on the said document. Otherwise also, it is not disputed by the management regarding employment of the workman with the management.
LIR No. 1043/16 Page 32 of 39MW2 Sh. Ravi Kumar, in his cross examination has denied the suggestion that the workman was not supplied with the copy of appointment letter or that workman was not given copy of any appointment letter by him. MW2 Sh. Ravi Kumar stated that the copy of appointment was given by him to the workmen appointed after 01.04.2009 signed by Sh. Vivek Sundriya, Manager (Personnel). However, in the instant case, the workman had stated to have joined with the management since 18.06.2003 as Mechanic. Thus, this itself shows that MW2 Sh. Ravi Kumar had not issued any appointment letter to the present workman.
Moreover, WW3 Sh. Manoj Kumar also categorically denied to the suggestion that the services of workmen were transferred to various locations in accordance with the conditions of employment and exigencies of work.
31. However, it is also the contention of the management that in view of the nature of business of the management and having regard to the commercial necessity, the claimant/workman had been transferred as per the transfer clause of the letter of appointment, which is as under:-
"THAT THE COMPANY SHALL HAVE ABSOLUTE RIGHT AND DISCRETION TO SHIFT AND/OR TRANSFER YOU FROM ONE SITE/PREMISES TO ANOTHER, WHETHER LOCATED IN DELHI OR OUTSIDE, IF THE EXIGENCIES OF WORK OF THE COMPANY SO DEMANDS. REFUSAL TO CARRY OUT SUCH ORDERS SHALL CONSTITUTE GROSS MISCONDUCT FOR WHICH YOUR SERVICES SHALL BE LIABLE TO BE TERMINATED."LIR No. 1043/16 Page 33 of 39
32. On the other hand, in support of his contentions, Ld. AR for workman has relied upon judgment titled as Kundan Sugar Mills Vs Ziyauddin & Others, AIR 1960 SC 650, wherein the Hon'ble Apex Court, held as under:-
"... None of these cases holds, as it is suggested by the learned counsel for the appellant, that every employer has the inherent right to transfer his employee to another place where he chooses to start a business subsequent to the date of the employment. We, therefore, hold that it was not a condition of service of employment of the respondents either express or implied that the employer has the right to transfer them to a new concern started by him subsequent to the date of their employment".
Further in the judgment titled as Management of Rajasthan Patrika Ltd. Vs Jasod Singh, W.P. (C) No. 6621/2005, decided by Hon'ble High Court of Delhi on 04.07.2012, wherein the Hon'ble High Court of Delhi has observed as under:-
"..there was no express agreement between the parties wherein the petitioner-management had a right to transfer the respondent- workman from one office to another ".
33. However, in support of its contention, management has relied upon the document i.e. contract of employment vide Mark WW1/M3. Perusal of clause (viii) of the Contract of Employment Mark WW1/M3 shows that service of workman was transferable from one place to another. However, the workman in his evidence specifically denied his signatures on contract of employment Mark WW1/M3. Since, the workman has categorically denied his LIR No. 1043/16 Page 34 of 39 signatures on the document i.e. Contract of Employment Mark WW1/M3, hence, it was incumbent upon the management to prove that the signature on Contract of Employment Mark WW1/ M3 at point A pertains to workman. However, in the instant case, the management has not filed any application whereby seeking permission for examination of handwriting expert so as to prove that contract of employment Mark WW1/M3 bears signature of the workman. Moreover, the management has also not examined its official/officer who had signed the said contract of employment Mark WW1/M3 on behalf of the management. Thus, it is apparently clear that the contract of employment Mark WW1/M3 remained unproved and same is of no help to the management. In these circumstances, management could not established that at the time of appointment of workman, the contract of employment Mark WW1/M3 existed or that it was signed by the workman and official of the management. Since, the contract of employment Mark WW1/M3 could not be proved by the management in accordance with law, thus, the alleged terms and conditions of contract of employment Mark WW1/M3 was not applicable upon the workman in any manner.
34. It is the contention of the workman that when he refused to leave the union of the management, then, the management with malafide intentions issued the Eight Point Agenda dated 01.05.2010 to the union, which was replied by the union on 06.05.2010 and 07.05.2010 thereby opposing the said agenda. There is force in the contention of the workman that the agenda dated 01.05.2010 was issued by the management just to victimize LIR No. 1043/16 Page 35 of 39 the workmen, as thereafter, the management transferred the workman from Delhi to Mangalore. In the instant case, admittedly, no chargesheet was issued to the workman for not joining the duties at transferred place. Moreover, even no enquiry, whatsoever, was held by the management against alleged agitations of the workman. It appears that the management had arbitrarily transferred the workman from Delhi to Mangalore, particularly, in absence of any such valid terms and conditions regarding transfer. This itself shows that the management had transferred the workman from Delhi to other State illegally with malafide intentions just to get rid off the workman, as it appears that it was in the mind of the management that the workman may not join his duties if he is transferred to such a distanced place i.e. Mangalore. Thus, in view of the abovesaid legal position as discussed above and also considering the facts and circumstances of the case as well as material placed on record, it is held that the transfer of workman from Delhi to Mangalore by the management was illegal and/or unjustified.
35. So far as another contention of the management that the workman was transferred due to business exigencies is concerned, the management has not placed on record any contract between the management and its clients of other States, hence, there is no force in the said contention of the management. Moreover, the management has also not filed on record any documentary evidence so as to establish that its clients situated in Delhi had terminated the contract with it. Thus, in absence of same it cannot be said that the management had lost its business in Delhi.
LIR No. 1043/16 Page 36 of 39Thus, issue no.1 is decided in favour of the workman and against the management.
ISSUE NO.3 (RELIEF)
36. So far as, relief part is concerned, in the statement of claim, the workman has prayed that the management be directed to recall its back dated transfer letter dated 15.05.2010 and allow the workman to resume his duty at Delhi with continuity of service with all consequential benefits. Thus, the workman prayed for his reinstatement with all consequential benefits. However, in the given facts and circumstances of the case, this court is of the considered opinion that both the parties have lost faith in each other, hence, reinstatement of the workman in service would not be in the interest of both the parties. Rather this court is of the opinion that instead of reinstatement, if the compensation is granted to the workman, then, the interest of justice would be served.
In the judgment titled as Indian Hydraulic Industries Pvt. Ltd Vs Kishan Devi and Bhagwati Devi & Ors. ILR (2007) I Delhi 219, passed by the Hon'ble High Court of Delhi, wherein it was held that:-
"It is now settled law that even if the termination of a person is held illegal, the Labour Court is not supposed to direct reinstatement along with full back wages and the relief can be moulded according to the facts and circumstances of each case.LIR No. 1043/16 Page 37 of 39
The Labour Court can allow compensation to the workman instead of reinstatement and back wages.."
Further, in the judgment titled as Central P & D Inst. Ltd. Vs. Union of India & Another, AIR 2005 Supreme Court 633, as passed by Hon'ble Supreme Court of India, it was held as under:-
"it is not always mandatory to order reinstatement after holding the termination illegal, and instead compensation can be granted."
37. Thus, now coming to the aspect of compensation, the period of service of the workman as well as the last drawn salary of the workman are also required to be taken into consideration. The workman claimed that his last drawn salary was Rs.6,500/- per month. The management did not specifically dispute this fact in its written statement. Accordingly, the last drawn salary of the workman is deemed to be as Rs.6,500/- per month. The length of service of the workman is about 7 years. The present case is pending since 2011. Therefore, considering all the above facts and circumstances as well as keeping in view of the aforesaid legal position, this court is of the considered opinion that the ends of justice will be served if a lump sum compensation is awarded to the workman in lieu of his reinstatement, back wages and consequential benefits. Accordingly, a lump sum compensation of Rs. 1,52,000/- (Rupees One Lac Fifty Two Thousand Only) is awarded to the workman in lieu of reinstatement, back wages and consequential benefits. The management is directed to pay the said LIR No. 1043/16 Page 38 of 39 lump sum compensation amount of Rs. 1,52,000/- (Rupees One Lac Fifty Two Thousand Only) to the workman within two months from the date of publication of award, failing which, the workman shall be entitled to recover the said lump sum compensation amount of Rs. 1,52,000/- (Rupees One Lac Fifty Two Thousand Only) from the management alongwith the interest @ of 9% per annum from the date of award till the date of realization of the said amount. Reference is answered accordingly.
38. A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules.
39. File be consigned to Record Room as per rules after due compliance. Digitally signed LAL by LAL SINGH Date:
SINGH 2022.06.09
16:14:47 +0530
Announced LAL SINGH
in the open court PRESIDING OFFICER, LABOUR COURT-02
on 09.06.2022 ROUSE AVENUE COURTS, NEW DELHI
LIR No. 1043/16 Page 39 of 39