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Delhi District Court

A) 2010 Llr 641, Sh. Arunachaleswarar ... vs Its Workmen on 7 July, 2015

    BEFORE THE COURT OF SHRI UMED SINGH GREWAL 
       POLC­XVII, ROOM NO. 22: KKD COURT: DELHI
1) ID 121/10/94
Unique ID No.02402C0367032004
IN THE MATTER OF : ­ 
1) Thomson Press ( I ) Ltd.,
   K­9 & 13 Connaught Circus, New Delhi
2) M/s T.P. Security Printing Works,
   B­315, Phase­I, Okhla, New Delhi          ............Managements 

                                  Versus
Its workmen 
C/o Thomson Press Employees Union, 
H.M.S, 29­Neelam Chowk, Faridabad                 ...........workmen 
DATE OF FILING                                            :  23.03.1994.
ARGUMENTS CONCLUDED ON                                    :  29.05.2015.
AWARD PASSED ON                                           :  07.07.2015.
                                   AND
2) ID 120/10/94
Unique ID No.02402C0367062004.
IN THE MATTER OF : ­ 
1)   M/s.Thomson Press ( I ) Ltd.,
     K­9 & 13, Connaught Circus, New Delhi
2)   M/s T.P. Security Printing Press (I) Ltd,
     B­315, Phase­I, Okhla, New Delhi            ............Managements 
                                 Versus
Its workmen 
C/o Thomson Press Employees Union, 
H.M.S, 29­Neelam Chowk, Faridabad                       ...........workmen 


ID 121/10/94 & ID 120/10/94                                             1/54
 DATE OF FILING                                             :  12.02.1996.
ARGUMENTS CONCLUDED ON                                     :  29.05.2015.
AWARD PASSED ON                                            :  07.07.2015.

A W A R D 


1.     Vide Order No. F. 24 (3487)/93­Lab./9037­43 dated 23.3.1994, 

issued by  Government of NCT of Delhi, a reference was sent to this 

Court with the following terms:
                     "   Whether   the   services   of   S/Shri   Tikam   Singh,  
                     Mohan Singh Raghav, Dilasha Ram, Sone Lal and  
                     Satish   Kumar   have   been   terminated   illegally  
                     and /or unjustifiably by the management and if so,  
                     to what relief are they entitled and what directions  
                     are necessary in this respect?"


2.     The   reference   was   registered   as   ID   no.   73/94,   the   present 

number being ID 121/10/94 ( hereinafter" Tikam Singh's case).



3.     Thereafter,   vide   Order   No.   F.24(2988)94­Lab/45142­48   dated 

21.4.94,   another   reference  was  sent  by  the  Government  of   NCT  of 

Delhi with the following terms:


                     " Whether the retrenchment of the workmen whose  


ID 121/10/94 & ID 120/10/94                                                   2/54
                      names   appear   in   Annexure   'A'   is   illegal   and/or  
                     unjustified and if  so,   to   what   relief   are   they  
                     entitled and what directions are necessary in this  
                     respect?"
                            Annexure " A"
                1                     S/Sh. Megh Raj Singh 
                2                      S/Sh. Shiv om
                3                     S/Sh. Rajender Singh 
                4                     S/Sh. Sukhbir Singh 
                5                     S/Sh. Kanhaiya Lal
                6                     S/Sh. Hari Nath Singh 
                7                     S/Sh. Satish Kumar Kapoor 
                8                     S/Sh. Rakesh Kumar 
                9                     S/Sh. Janardhan Parshad 
                10                    S/Sh. Ranjeet Singh 
                11                    S/Sh. Yudhister Rai
                12                    S/Sh. Ravi Dutt Tyagi
                13                    S/Sh. Haripal Singh 
                14                    S/Sh. Purshottam Dass 
                15                    S/Sh. Shyam Lal
                16                    S/Sh. Man Singh 



4.     This reference was registered as ID 1206/94, present number 

being ID 120/10/94 (hereinafter " Megh Raj Singh's case).



5.     Vide orders dated 30.4.97 passed separately in both the cases, 

ID 121/10/94 & ID 120/10/94                                                   3/54
 both the cases were consolidated and Tikam' Singh case was treated as 

the main/leading case.



6.     Before consolidation, separate claims were filed by all the five 

workmen in Tikam Singh's case and by all the sixteen workmen in the 

Megh Raj Singh's case,  However, vide order dated 27.10.95 passed in 

Megh Raj Singh's case, it was held that only one claim should have 

been filed as there is only one reference order and accordingly filing of 

one composite statement of claim was directed.  In compliance of the 

order, one composite statement of claim was filed by all the sixteen 

workmen in Megh Raj Singh's case.



7.     During the pendency of the matters, workmen Megh Raj Singh, 

Sh. Kanhaiya Lal and Shyam Lal ( all mentioned in Megh Raj Singh's 

case) expired and their legal heirs were brought on record. 



8.     During   the   pendency   of   the   matters,   the   workmen   Hari   Pal 

Singh,   Man   Singh,   Mohan   Singh   Raghav,   legal   heirs   of   workman 

Kanhaiya Lal and legal heirs of workman Shyam Lal settled the matter 

with the management. However, no specific orders regarding disposal 



ID 121/10/94 & ID 120/10/94                                                  4/54
 of the claims of these persons were passed at the time the statements 

regarding the settlement were recorded in the Court. 



9.     In view of the statement of workman Man Singh recorded on 

23.9.99, claim of workman Man Singh is disposed of as settled.  The 

workman   Man   Singh   shall,   however,   be     bound   by   his   statement 

recorded on 23.9.99.



10.    In   view   of   separate   statements   of   the   workman   Sh.   Haripal 

Singh, his  Authorised Representative and Authorised Representative 

for  management   recorded  on  27.11.01,  the  claim   of   the  workman 

Sh.   Haripal   Singh   is   disposed   of   as   settled.    However,   both   the 

parties shall be bound by the respective statements made by them or on 

their behalf on 27.11.01 and also by the terms and conditions of the 

compromise Ex   P­1 and settlement Ex P­2. 



11.    In view of  joint statement of Smt. Prema Devi ( for herself and 

as guardian of minors Suresh Kumar and Mahesh) and Rajesh Kumar, 

both   legal   heirs   of   deceased   workman   Kanhaiya   Lal   and   separate 

statement   of   Sh.   Afaque   Akhtar,   Chief   Manager   (Personnel 


ID 121/10/94 & ID 120/10/94                                                    5/54
 Administration) of the management recorded on 25.08.07, the claim of 

the workman Kanhaiya Lal is also disposed of as settled. Both the 

parties   shall,   however,   be   bound   by   their   respective   statements 

recorded on 25.08.07 as well as by the terms and conditions of the 

settlement  Ex C­1.  



12.    In view of statement of Smt. Phoolmati ( legal heir of workman 

Sh.   Shyam   Lal)   recorded   on   05.3.10,  the   claim   of   the   workman 

Sh. Shyam Lal is disposed of as settled.  However, the legal heirs of 

the deceased workman Sh. Shyam Lal shall be bound by the statement 

of Smt. Phoolmati recorded on 05.3.10 as well as by Memorandum of 

Settlement Ex C­2.



13.    In   view   of   statement   workman   Sh.   Mohan   Singh   Raghav 

recorded on 06.02.15,  the claim of the workman Sh. Mohan Singh 

Raghav is disposed of as settled.  However, the workman Sh. Mohan 

Singh Raghav shall be bound by his statement made on 06.02.15 and 

also by the terms and conditions of memorandum of settlement Ex C­3. 



14.    Hence the present dispute survives in respect of the remaining 

ID 121/10/94 & ID 120/10/94                                                6/54
 sixteen workmen only. 



15.     As   noted   above,   separate   claims   were   filed   by   all   the   five 

workmen   in   Tikam   Singh's   case.     However,   the   facts   stated   in   the 

claims of workmen Tikam Singh, Dilasa Ram and Satish Kumar are 

virtually   the   same.     Similarly,   the   claims   filed   by   the   other   two 

workmen   in   Tikam   Singh's  case   i.e.   Mohan  Singh   Raghav   and   Sh. 

Sone Lal are also virtually the same, although a little different from the 

facts   stated   in   the   claims   of   Tikam   Singh,   Dilasa   Ram   and   Satish 

Kumar. 



16.     Admitted   facts  are   that   management   no.1   is   a   company 

incorporated under the Companies Act having its registered office at 

Connaught   Circus,   New   Delhi.   It   is   having   printing   presses   at 

Faridabad,   Noida,   Madras   and   several   other   places   in   India.     The 

accounts are being maintained at the registered office.   All dealings 

with   the   Sales   Tax   and   Income   Tax   departments   and   in   respect   of 

Import and Export matters are dealt with by the registered office.  The 

workers are transferable from one department to another department 

and also from one place to another place. Management No.2 is a unit/ 



ID 121/10/94 & ID 120/10/94                                                      7/54
 division of management no.1.  The workers herein were working with 

the  management   for  different  durations ranging from  5  years to  11 

years   on   different   posts.     There   were   some   acts   of   violence   at   the 

Faridabad press, as a result of which management no.1 declared a lock 

out.     An   agreement   dated   28.5.91   was   entered   into   between   the 

management and the Thomson Press Employees   Union ( hereinafter 

"the Union") to the effect that the entire security printing department 

with   196   employees   and   machines   shall   be   shifted   to   Okhla,   New 

Delhi.   On   08.06.91,     individual   transfer   letters   were   given   to   the 

workmen herein pursuant to which they joined their duties at Okhla, 

Delhi.   However,   all   the   employee   so   transferred,   including   the 

workmen herein, were kept idle and were never given any job.  Vide 

separate   letters   dated   25.2.92,   the   management   transferred   the 

workmen Mohan Singh Raghav and Sone Lal from Okhla to Madras 

asking   them   to   join   their   duties   at   Madras   w.e.f   29.2.92.   The 

management   laid   off   the   employees   at   Okhla,   Delhi   w.e.f   12.3.92. 

Both Mohan Singh Raghav and Sone Lal did not join their duties at 

Madras: Vide letter dated 20.05.92, all the employees at Okhla were 

retrenched with immediate effect.  Subsequently, the factory at Okhla 

was closed.



ID 121/10/94 & ID 120/10/94                                                         8/54
 17.    The case of the workmen in the  claim  is that the management 

wanted to break the Union.  It had no intention to start security printing 

works at Okhla. It only wanted to get rid of 196 employees through the 

transfer device which was not genuine and that is why the transferred 

employees were kept idle despite repeated reminders by them.   Not 

only this, the management adopted the policy of pick and choose for 

the transfer.  Only the employees who dis­agreed with the management 

to join another Union ( INTUC) patronised  by it, were transferred to 

Okhla.   Even  the  employees  who  later agreed  with  the management 

were   transferred   back   from   Okhla   to   Faridabad.   On   26.2.92,   the 

workmen   Sone   Lal   and   Mohan   Singh   Raghav   gave   separate 

representations   to   the   management   requesting   to   withdraw   their 

transfer   but   the   management   refused   to   receive   the   same   and   also 

refused to allow them duties.  Hence, the representations were sent by 

them   to   the   management   by   registered   post   on   27.2.92.     Even 

thereafter, both of them continued to go to the management for their 

duties but were not allowed by the management.  The termination of 

the   services   of   workmen   Sone   Lal   and   Mohan   Singh   Raghav   was 

without any reason or notice pay or service compensation, in violation 

of Section 25 F of the Industrial Disputes Act ( hereinafter " the Act"). 



ID 121/10/94 & ID 120/10/94                                                     9/54
 Hence,  the termination is illegal.   They both gave separate demand 

notices dated 25.3.92 to the management and a second demand notice 

dated   18.8.92.     The   second   demand   notice   was   refused   by   the 

management. The lay off as well as retrenchment have been effected 

without any permission of the Government and, thus, are in violation 

of Sections 25 M and 25 N of the Act . The presses at Faridabad and 

Okhla   have   functional   integrity.     However,   no   seniority   list   was 

displayed   by   the   management   before   the   retrenchment.     The 

management did not offer the retrenchment compensation at the time 

of serving retrenchment notice.  However, some of the workmen have 

received the cheque but the same is no bar to raise the present dispute. 

The management was bound to ask the workmen to return back i.e to 

transfer them back to Faridabad, which was not done.  The workmen 

have not been able to get gainful employment and are unemployed. 

The closure of the factory is also illegal being in violation of Section 

25   O   of   the   Act.     The   workmen   have   sought   reinstatement   with 

continuity   of   service   and   all   attending   benefits   from   the   date   of 

retrenchment. 



18.     The   management   has   contested   the   claim   by   filing   separate 



ID 121/10/94 & ID 120/10/94                                                    10/54
 written statement in Tikam Singh's case and a joint written statement 

in Megh Raj Singh's case, although the written statements in respect of 

Mohan Singh Raghav and Sone Lal are virtually the same.  Similarly 

the   written   statements   in   respect   of   Tikam   Singh,   Dilasa   Ram   and 

Satish Kumar are also virtually the same.  As preliminary objections, it 

is   submitted   that   the   reference   sent   by   Secretary   Labour,   Delhi 

Administration is bad in law as the appropriate Government in respect 

of Delhi ( a union territory) is the Central Government and not the 

State Government.  The reference is bad in law as the dispute has not 

been espoused as required under the law.  The case actually is that of 

retrenchment and not that of termination. Hence, in view of Section 7 

A read with schedule III of the Act, this Court has no jurisdiction to 

decide   the   present   dispute.     On   merits,   it   is   submitted   that   all   the 

printing presses of the management are separate and independent units 

having   their   own   Managers   and   are   controlled   by   the   Manager 

Incharge of the same and have no functional integrity with each other. 

Obviously,   for   the   limited   company   (which   the   management   no.1 

admittedly   is),   there   will   necessarily   be   only   one   account   and   one 

balance   sheet.     Again,   with   regard   to   Sales   Tax,   Income   Tax 

department and Import and Export Department, necessarily, it is the 



ID 121/10/94 & ID 120/10/94                                                          11/54
 company which is to  deal in the subjects as the independent units have 

no locus­standi before such authorities. The Delhi unit and Faridabad 

unit are separate units having separate accounts, separate insurance and 

separate standing orders.   The Faridabad unit is registered under the 

Haryana Factory Rules under the Factories Act, 1948.  There was no 

inter­dependence or functional integrity of any type of between one 

unit or the other and one could exist independently without the other. 

On account of violence at Faridabad Press, the management had more 

or less lost the job of security printing works. When the transfers were 

made under the aforesaid agreement from Faridabad to Okhla, it was 

thought   by   the   management   that   probably   due   to   a   new 

location/situation, the printing of lottery ticket work may possibly be 

revived at Delhi. However, that thinking of the management did not 

materialize.     Inspite   of   this,   the   management   continued   with   the 

establishment at Okhla for nearly one year to try and see if it can get 

the security printing jobs at Okhla as a new unit.  In order to utilize the 

idle manpower at Okhla, it was decided to transfer the employees back 

to Faridabad and close the unit at Okhla.  The employees stationed at 

Okhla   were,   therefore,   offered   alternate   jobs   from   time   to   time   in 

different departments at Faridabad where they could have been trained 



ID 121/10/94 & ID 120/10/94                                                     12/54
 in   that   work,   but   due   to   the   adamant,   hardened   and   mischievous 

attitude of the workmen herein, they refused to accept the alternate 

offers.     Those     who   accepted   the   offer,   have   been   transferred   to 

Faridabad.   The total strength of the Thomson Press ( India) Ltd is not 

relevant and what is relevant is the number of employees employed at 

Delhi   where   the   retrenchment   has   been   effected.   On   the   date   of 

retrenchment, only 38 persons were employed at Delhi Unit.  Since all 

the remaining  employees were retrenched, no question of preparing 

any   seniority   list   arose.   Some   of   the   workmen   did   not   accept   the 

cheque     towards   retrenchment   compensation/   notice.   Hence,   the 

management   sent   the   same   to   their   respective   permanent   addresses 

available in the records. Some of them have also encashed the cheques. 

Further,   since   the   press   at   Okhla   has   been   closed,   the   question   of 

reinstatement does not arise.   As far as the workmen Sone Lal and 

Mohan  Singh  Raghav are concerned, since both the workmen were 

transferred   to   Madras,   the   question   of   them   reporting   for   duty   at 

Faridabad and/or Delhi does not arise.   It is correct that the demand 

notice   dated   18.8.92   was   served   upon   the   management.   However, 

Standing Order 12(d) of the management lays down that "a workman  

who remains absent continuously without any prior sanction of leave,  

he will be deemed to have abandoned the services of the company on  

ID 121/10/94 & ID 120/10/94                                                       13/54
 his own and, accordingly, his name shall automatically stand dropped  

from the muster Rolls of the company".   Since the workmen did not 

report for duty at Madras, in terms of the Standing Orders 12 (d), they 

are deemed to have left their services and lost their lien on the same. 

Therefore,   the   question   of   any   action   having   been   taken   by   the 

management does not arise as their services automatically came to an 

end. The other contents of the claim are denied by the management 

who has sought answering reference in its favour.



19.    In   the  rejoinder,   it   is   submitted   by   the   workmen   that   Delhi 

Administration is the appropriate government and, hence, the reference 

made by the Secretary Labour, Govt. of NCT of Delhi is correct.  The 

reference   relates   to   individual   worker   who   himself   has   raised   the 

dispute under Section 2 (a) of the Act. Hence, no espousal is required. 

In   the   eyes   of   law,   there   is   no   abandonment.     Moreover,     the 

management   has   nowhere   specifically   stated   that   workmen   had 

intention to abandon the employment.     The Thomson Press India is 

very much in existence.   Moreover, the place of employment is very 

much open.  The management has set up a unit at Okhla.  There is a 

big factory at Faridabad from where the workmen were transferred and 



ID 121/10/94 & ID 120/10/94                                                    14/54
 they are entitled to be reinstated there.   The premises at Okhla is open 

and working and the management is having a process house for the 

purpose of printing.  At the time of closure of the Okhla premises, the 

entire   machinery   was   transferred   back   to   Faridabad/Noida   where 

lottery tickets, cheques, airline tickets and govt. roadways tickets are 

printed.  The presses are running at Noida and Faridabad where about 

300 workers are working in Security Printing Department only.   The 

workmen were never given any offer to go back to Faridabad or any 

alternate   job   offer   nor   any   such   offer   was   made   before   the   Delhi 

Administration.   No reply to the demand notice of the workmen was 

sent by the management.  The total strength of the management is more 

than 100.  Hence, the retrenchment is bad as no prior permission was 

sought   by   the   management   from   the   appropriate   government.     The 

cheques were encashed by some of the workmen to avoid starvation. 

There is no factory in the name of management no.1 at Madras.  The 

establishment at Okhla  is very much in operation and more than 100 

workers are working there.   The worker is entitled to be transferred 

back to the place from where he was transferred if there is no work at 

the place to which he was transferred. No reply to the standing order 

mentioned by the management in its written statement is required.  The 



ID 121/10/94 & ID 120/10/94                                                     15/54
 Delhi   unit   was   one   integral   part   of   the   management   because   no 

separate or independent accounting is maintained, balance­sheet is one 

and the same, the cheques to the workers were sent from the factory at 

Faridabad,   all   correspondence   in   all   respects   of   the   management 

including termination, retrenchment, transfer and payment of full and 

final   accounts   was   done   from   Faridabad.   The   workers   were   never 

employed   specifically   against   any   post   in   the   Security   Printing 

Department rather they have worked on various jobs at Faridabad and 

also at Delhi.  The other contents of written statement are denied by the 

workmen who have reiterated the contents of their claim. 



20.    From the pleadings of the parties, following issues were framed 

on 13.03.1996 in  Tikam Singh's case:­
               1) Whether   Delhi   Administration   has   not   been 
                  appropriate government to refer this industrial dispute 
                  and dispute has not been rightly refer?

               2)       As per terms of reference. 



21.    Later on 14.11.1996 the following  additional issues  were also 

framed in this case ( i.e Tikam Singh's case):­ 
                  1) Whether this court has no jurisdiction to adjudicate 

ID 121/10/94 & ID 120/10/94                                                 16/54
                  the   dispute   referred   in   view   of   the   provisions   of 
                 Section   7A   read   with   the   IIIrd   Schedule   of   the 
                 Industrial Disputes Act? OPM

                 2)   Whether   Shri   Sone   Lal   and   Mohan   Singh 
                    themselves   voluntarily   abandoned   their   services   ? 
                    OPM

                 3) Whether the case of Tikam Singh, Dilasha Ram and 
                    Satish Kumar is a case of legal retrenchment from 
                    service ? OPM

                 4) Whether the unit where the workmen were working 
                    has been closed and the reference is bad in law on 
                    this ground ? OPM

                 5) Whether the reference is bad in law on the ground 
                    that the appropriate government has not taken into 
                    account   the   pleadings   of   the   parties   before   the 
                    conciliation officer and whether this plea at all can 
                    be raised before this court?

                 6) Whether the reference is bad on the ground that the 
                    dispute has not been properly espoused?


22.   Following  issues  were   framed   on   05.01.1996   in     Megh   Raj 

Singh's case:­
                 1) Whether Delhi Administration is not the appropriate 
                 government   in   respect   of   the   dispute   in   the   present 


ID 121/10/94 & ID 120/10/94                                                   17/54
                 case?

                2)    As per terms of reference. 



23.   Later on 14.11.1996 the following  additional issues  were also 

framed in this case ( i.e Megh Raj Singh's case):­
                        1)  Whether this court has no jurisdiction to 
                            adjudicate the dispute in view of the 
                            provisions of Section 7­A read with the IIIrd 
                           Schedule of the Industrial Disputes Act 1947. 
                           OPM

                           2)  Whether the workmen or any of the them is 
                               gainfully employed ? OPM

                           3)  Whether the Delhi Unit of the management 
                                has been closed and if so its effect, if any ? 
                                OPM

                           4)   Whether the reference is bad in law on the 
                                ground that the appropriate government has 
                                not taken into account the pleadings of the 
                                parties before the conciliation officer and 
                               whether this plea at all can be raised before 
                               this court. OPM

                          5) Whether the reference is bad on the ground 
                             that   the   dispute   has   not   been   properly 


ID 121/10/94 & ID 120/10/94                                               18/54
                                   espoused ? OPM


24.     In support of their case, the workmen examined one Sh. R. D. 

Yadav, who was examined separately in both the cases. In addition, in 

Tikam Singh's case, Tikam Singh was examined as a witness.   The 

other workmen in the said case (i.e. Tikam Singh's case) filed a joint 

affidavit relying upon the evidence of Sh. R. D.Yadav and Sh. Tikam 

Singh.  Similarly, in Megh Raj Singh's case, in addition to the witness 

Sh.   R.   D.   Yadav,   the   workman   Yudhister   Rai   was   examined   as   a 

witness and the other workmen in the said case filed a joint affidavit 

relying upon the evidence of Sh. R.D.Yadav and Sh. Yudhister Rai.



25.    The management examined two witnesses in support of its case. 

MW1   is   Sh.  Afaque   Akhtar,  Chief   Manager   (   Pers.   &   Admn.)   of 

management no.1 and MW2 is Sh. Rahul Rai Gupta, Private Detective. 



26.    Thereafter,   the   workmen   Yudhister   Rai   and   Satish   Kumar 

Kapoor   (   both   in   the   Megh   Raj   Singh's   case)   filed   their   separate 

affidavits in rebuttal to the evidence of MW2 Sh. Rahul Rai Gupta, 

Private Detective. 



ID 121/10/94 & ID 120/10/94                                                     19/54
 27.   Separate written arguments were filed by both the parties.  



28.   The   workmen   have   relied   upon   the   following  authorities  in 

support of their contentions:

             a)     2010 LLR 641, Sh. Arunachaleswarar Mills vs 
                    Joint Secretary, Department of Industries and 
                    Labour Secretariat, Fort St. George, & Ors, 
             b)     2003  I LLJ, Alumina Mazdoor Sangh & Others 
                    vs Ratna Construction Co. and Others,
             c)     1994 LLR 199 Carona Sahu Co. Ltd vs Abdul 
                    Karim Munakhan ( Mr.) & Ors, 
             d)     2006 (3) Apex Court Judgments 753 ( S.C.), State 
                    of Haryana vs Dilbagh Singh, 
             e)     2005 (2) Apex Court Judgments 57 ( S.C.), 
                    General Manager, Haryana Roadways vs 
                    Rudhan Singh,
             f)     AIR 2005, SC 851, M/s Maruti Udyog Ltd vs Ram  
                    Lal and others,
             g)     AIR 2005 SC 392, Om Hemrajani vs State of U. 
                    P. and anr,
             h)     AIR 2004 SC 2401, Engineering Kamgar Union 
                    vs M/s. Electro Steels Castings Ltd and anr,
             i)     (2003)4 SCC 27, S M Nilajkar and Others vs 
                    Telecom District Manager, Karnataka,
             j)     (2000) 3 SCC 588, Nar Singh Pal vs UOI and 
                    others,
             k)     AIR 1960 SC 610 The State of Bombay and others  

ID 121/10/94 & ID 120/10/94                                             20/54
                     vs The Hospital Mazdoor Sabha and others,
             l)     1968 ( IV) DLT 130 M/s Payen and Talbros Ltd 
                    vs Hansraj,
             m)     1994 LLR 369 State of Rajasthan vs Usha 
                    lokwani.


29.   The management has relied upon the following  authorities  in 

support of their contentions:

             a)     AIR 1966 Punjab 354, Gondhara Transport Co. 
                    ( Pvt) Ltd vs State of Punjab and others,
             b)     1943 King's Bench Division 462, Hodge vs Ultra 
                    Electric, Limited,
             c)     AIR 1936 Privy Council 253 (2), Nazir Ahmad vs 
                    King Emperor,
             d)     2014 LLR 12, Scooters India Lt vs Govt. of N.C.T.  
                    of Delhi and Anr. ,
             e)     2013 LLR 1009, Assistant Engineer, Rajasthan 
                    State Agriculture Marketing Bord, Sub­Division,  
                    Kota vs Mohan Lal,
             f)     Civil Appeal No. 3838 of 2010, Special Land 
                    Acquistion Officer vs Karigowda & Ors,
             g)     2008 (116) FLR 362, M/s. Honda Ram Chander 
                    vs Yeshwant Mahadev Kadam ( Dead) by LRs,
             h)     (2007) 9 Supreme Court Cases 194, Fazilka Coop.  
                    Sugar Mills vs Jatinder Kumar Gupta and 
                    another,
             i)     (2007) 7 SCC 366, District Red Cross Society vs 


ID 121/10/94 & ID 120/10/94                                       21/54
                     Babita Arora and ors,
             j)     ( 2007) 2 SCC ( L & S) 992, Sukhdeo Pandey vs 
                    UOI and anr,
             k)     (2005) 7 SCC 447, Rajasthan State Road 
                    Transport Corpn. and others vs Zakir Hussain,
             l)     (2004) 2 SCC 193, Punjab National Bank vs  
                    Virender Kumar  Goel and Others,
             m)     (2003) 2 SCC 721, Bank of India and Others vs 
                    O.P. Swarnakar and others,
             n)     2001 (2) L.L.N 859, Sain Steel Products vs Naipal 
                    Singh and others, 
             o)     AIR 1985 SC 357, Goa Sampling Employees' 
                    Association vs General Superintendance Co. of 
                    India Pvt. Ltd and others,
             p)     AIR 1973 SC 878, Management of Hindustan 
                    Steel Ltd vs The workmen and others,
             q)     AIR 1970 SC 737, workmen of Indian Express 
                    Newspaper Private Ltd vs The Management of 
                    Indian Express Newspaper Private Ltd,
             r)     AIR 1960 SC 815, Tea Districts Labour 
                    Association, Calcutta  vs Ex­employees of Tea 
                    Districts Labour Association and another,


30.   I have gone through the record including the written arguments 

filed by both the parties as well as the authorities relied upon by them. 



31.    My issuewise  findings  are as follows:

ID 121/10/94 & ID 120/10/94                                           22/54
 ADDITIONAL ISSUE NO.6 in Tikam Singh's case and Additional  
Issue no.5 in Megh  Raj Singh's case:­
Whether the reference is bad on the ground that the dispute has 
not been properly espoused? OPM


32.   The burden of proving this issue was on the management.



33.   In the written arguments dated 29.7.13 filed by the management, 

it is submitted by the management that the management does not press 

the issue of espousel.



ISSUE No.1 in both cases:­ 

Whether Delhi Administration is not the appropriate government 
in respect of the dispute in the reference?


34.   As noted above, the present references have been sent by the 

Govt. of NCT of Delhi. In its written arguments, it is contended by the 

management   relying   upon  Goa   Sampling   Employees   Association 

(supra)   that the appropriate government in respect of a dispute in a 

Union Territory is the Central Govt and that a reference can be validly 

made in respect of a dispute arising in a Union Territory by a Central 


ID 121/10/94 & ID 120/10/94                                       23/54
 Govt only and that since the references in the present case have not 

been sent by the Central Govt, the references themselves are bad.   



35.   Significantly, the workmen have not submitted a single word in 

respect of this issue in their written arguments or even in their written 

arguments   filed   in   rebuttal   to   the   written   arguments   of   the 

management. 



36.   I   have   carefully   perused   the   authority   relied   upon   by   the 

management.     I   am   of the view  that  the contention of  Ld ARM is 

misplaced.  It has been held in the authority as follows:

              "17. The High Court clearly fell into an error when it  
              observed   that   the   inclusive   definition   of  the   expression  
              'State Government' does not necessarily enlarge the scope  
              of   the   expression,   but   may   occasionally   point   to   the  
              contrary.   Let us assume it to be so without deciding it.  
              But where the High Court fell into the error was when it  
              held   that   the   President   representing   the   Central  
              Government and the Administrator, and appointee of the  
              President   and   subject   to   all   orders   of   the   President  
              constitute   two   different   governments   for   a   Union  
              Territory.     The   position,   the   power,   the   duties   and  
              functions of the Administrator in relation to the President  
              have been overlooked.   On a conspectus of the relevant  
              provision of the Constitution and the 1963 Act, it clearly  

ID 121/10/94 & ID 120/10/94                                                   24/54
               transpires that the concept of State Government is foreign  
              to the administration of Union Territory and Article 239  
              provides that every Union Territory is to be administered  
              by   the   President.   The   President   may   act   through   an  
              administrator  appointed  by him.    Administrator is thus  
              the   delegate   of   the   President.     His   position   is   wholly  
              different   from   that   of   a   Governor   of   a   State.  
              Administrator can differ with his Minister and he must  
              then obtain the orders of the President meaning thereby  
              of   the   Central   Government.   Therefore,   at   any   rate   the  
              administrator of Union Territory does not qualify for the  
              description of a State Government. Therefore, the Central  
              Government is the appropriate Government."

                                                      ( Underlining by me)

37.   I   am   of   the   view   that   instead   of   laying   down   that   the   State 

Government has no  authority to make reference in respect of a dispute 

arising in a Union Territory, what the Hon'ble Supreme Court has held 

is that in the case of Union Territory,  there is only one government i.e 

Central Govt and there is no State Govt and in this view of the matter, 

the Hon'ble Supreme Court in that authority held that the reference 

made in that case by the Central Govt was valid. 



38.   This view of mine gets support from the judgment of Hon'ble 

Delhi High Court in  NBCC Ltd vs M.K. Jain and Ors, 1981 LAB. 


ID 121/10/94 & ID 120/10/94                                                        25/54
 I.C.62 wherein it has been held as follows:

                    ".....In the case of Union Territory, therefore, the  
              Central   and   State   Governments   merge   and   it   is  
              immaterial whether an order of reference is made by one  
              or the other....."


39.   It is clear from this authority that in case of Union Territory, any 

order of reference, whether made by Central Govt or by the State Govt, 

is valid. I am of the view that the authority is squarely applicable to the 

facts of the present case. 



40.   In   view   of   the   above   discussion,   it   is   held   that   the   present 

references sent by the Govt. of NCT of Delhi are valid.  The issue is, 

accordingly,   decided   in   favour   of   the   workmen   and   against   the 

management. 

ADDITIONAL ISSUE NO.1 IN BOTH THE CASES

Whether this Court has no jurisdiction to adjudicate the dispute in  
view of provisions of Section 7­A read with the IIIrd Schedule of the  
Industrial Disputes Act 1947?



41.   The burden of proving this issue was on the management.




ID 121/10/94 & ID 120/10/94                                                       26/54
 42.    It is contended in the written arguments of the management that 

the jurisdiction of the Labour Court is confined to the matters specified 

in  IInd   schedule  of  the Act  only. It  does  not  extend to the matters 

specified in the IIIrd schedule.   It is submitted that entry no. 10 of 

schedule   III   pertains   to  "retrenchment   of   workman   and   closure   of  

establishment".     The   contention   of   the   management   is   that   in   the 

present case, the retrenchment was a consequence of closure of the 

establishment and, thus, the matter falls in the IIIrd schedule and, thus, 

was exclusively triable by the Industrial Tribunal.



43.    In their written arguments, the workmen have, again, not stated 

anything in respect of this issue.  



44.    It   is   pertinent   to   mention   here   that   the   terms   of   reference   in 

Megh Raj Singh's case is specifically regarding the "retrenchment" of 

the workmen.  As noted above, it is the admitted case of the parties that 

the  factory  at   Okhla  has been closed. Similarly, although in Tikam 

Singh's case, the terms of reference pertain to the "termination" of the 

services of the workmen, it is the case of the workmen, except Mohan 

Singh   Raghav   and   Sone   Lal,   themselves   in   their   respective   claims 


ID 121/10/94 & ID 120/10/94                                                          27/54
 particularly the prayer made therein where the workmen have sought 

the   benefits   from   the   date   of   "retrenchment"   that     their   case   is   of 

retrenchment only and not termination.

 

45.    However,     I   have  found   that  Section10   of   the   Act   (   relevant 

portion) is as follows :

                          "10. Reference of disputes to Boards Courts or  
                          Tribunal-(1) Where the appropriate Government  
                          is of opinion that any industrial dispute exists or  
                          is apprehended, it may at any time, by order in  
                          writing ­­ 

                          (a) refer the dispute to a Board for promoting a  
                          settlement thereof; or 

                          (b)  refer  any  matter  appearing  to be connected  
                          with   or   relevant   to   the   dispute   to   a   Court   for  
                          inquiry; or

                          ( c) refer the dispute or any matter appearing to  
                          be connected with, or relevant to, the dispute, if it  
                          relates   to   any   matter   specified   in   the   Second  
                          Schedule, to a Labour Court for adjudication; or 

                          (d) refer the dispute or any matter appearing to be  
                          connected   with,   or   relevant   to,   the   dispute,  
                          whether it relates to any matter specified in the  

ID 121/10/94 & ID 120/10/94                                                          28/54
                          Second   Schedule   or   the   Third   Schedule,   to   a  
                         Tribunal for adjudication:

       Provided that where the dispute relates to any matter specified  
in the Third Schedule and is not likely to affect more than one hundred  
workmen, the appropriate Government may, if it so thinks fit, make the  
reference to a Labour Court under clause (c):"

                                                       ( underlining by me)

46.    It is clear from the proviso underlined by me above that the Govt 

has the power to refer even the dispute falling in the third schedule to a 

Labour Court in cases where the dispute is not likely to affect more 

than 100 workmen.  It is not the case of management that the dispute 

affects more than 100 workmen.  On the contrary, its case is that on the 

date of retrenchment, only 38 persons were employed at Delhi, out of 

whom 17 have already settled their disputes with the management and 

thus the dispute remains in respect of 21 workmen ( before this Court 

in these two references) only.   In his cross­examination recorded on 

15.7.97, WW R D Yadav admitted that  " .... It is correct to suggest  

that at the time of closure, there were 38 employees were remained at  

Okhla unit....." .  Hence, it is clear that since the dispute pertained to 

less   than   100   workmen   only,   in   exercise   of   its   powers   under   the 

aforesaid   proviso,   (   although   not   specifically   stated   in   the   order   of 


ID 121/10/94 & ID 120/10/94                                                        29/54
 reference)   the   reference   has   been   made   to   this   Court   i.e.   a   Labour 

Court .  Hence, it is held that this Court has the jurisdiction to entertain 

and   decide   the   present   disputes   and,   thus,   the   contention   of   the 

management   in   this   regard   is   rejected.     The   issue   is,   accordingly, 

decided in favour of the workmen and against the management. 



ADDITIONAL ISSUE No. 4 in Tikam Singh's case and Additional  

Issue no.3 in Megh Raj Singh's case.

Whether the Delhi unit of the management has been closed and if 
so, its effect, if any ?


47.    The burden of proving this issue was on the management.  



48.    In  Tikam  Singh's  case,  all  the workmen except   Mohan Singh 

Raghav and Sone Lal, in para 9 (d) of their respective claims have 

themselves claimed that the factory at Okhla, Delhi has been closed 

down.  In Megh Raj Singh's case, in the claim itself, the workmen have 

themselves sought a declaration that the closure of a factory at  Okhla 

is  illegal.  This  clearly shows that  all  these workman admit  that the 

factory at Okhla has closed down.



ID 121/10/94 & ID 120/10/94                                                       30/54
 49.    As far as the workmen Sone Lal and Mohan Singh Raghav in 

Tikam   Singh's   case   are   concerned,   as   noted   above,   they   both   have 

relied upon the evidence of R D Yadav and Tikam Singh.   As noted 

above,   the  case  of   Tikam  Singh,  in his claim  is that  the factory  at 

Okhla (Delhi) has closed down.  It is clear that even the workmen Sone 

Lal and Mohan Singh Raghav admit that the factory at Okhla(Delhi) 

has closed down.   Even otherwise, in his cross­examination recorded 

on 15.7.97,   WW R D Yadav admitted that ".... It is correct that the  

Delhi unit was closed on 20.5.92".



50.    In   view   of   the  above  discussion  it   is  held  that   the   factory   at 

Okhla (Delhi) has closed down. This part of the issue is, accordingly, 

decided in favour of the management and against the workmen. The 

effect of closure, if any, shall be decided later on in this award. 



Additional Issue No. 2 in Megh Raj Singh's case.

Whether the workmen or any of them is gainfully employed?

51.    At the time of framing of issues the burden of proving this fact 

was placed on the management.  I am of the view that the initial burden 

of proving that the workman is unemployed despite his efforts is on the 


ID 121/10/94 & ID 120/10/94                                                       31/54
 workman and only after this burden is discharged by the workman, the 

onus shifts to the management. 



52.    As noted above, the workmen in Tikam Singh's case relied upon 

the evidence of R.D. Yadav and Tikam Singh.   In para No. 8 of his 

affidavit in evidence, Tikam Singh deposed that he and his colleagues 

are unemployed.  To the same effect is the deposition of R.D. Yadav in 

para No. 8.   To the same effect is the evidence of R.D. Yadav and 

Yudhisthar Rai in Megh Raj Singh's case.   MW1 did not say a single 

word in both cases regarding gainful employment  of the workmen. 

       Management examined Mr. Rahul Rai Gupta as MW2, who is 

running a private detective agency in the name of M/s. Secret Watch 

Detective Pvt. Ltd.   He enquired into the employment of Ravi Dutt 

Tyagi,   Ranjit   Singh,   Sukhbir   Singh,   Rajinder   Singh,   Satish   Kumar, 

Purshottam Dass, Shiv Om and Janaradhan Prasad.   It is mentioned in 

report in respect of workman Satish Kumar that he was found working 

in a factory M/s. Garg Metal Industries, Sector ­3, Tigaon Road, Near 

SRS Value Bazar, Ballabgarh, Faridabad.  The said factory was dealing 

in plastic dana, bags and sheets and was owned by a person resident of 

village Tanther. The factory was famous by the name of Ram Dairy or 



ID 121/10/94 & ID 120/10/94                                                 32/54
 sarpanch ki factory.  The secret agency contacted the owner, who told 

them   that   Satish   Kumar   was   working   with   him   for   over   a   decade. 

Thereafter, they talked to Satish Kumar and audio ­ video graphed him. 

He told the agency that he was working in the factory for the last 16 

years and his monthly salary  was Rs.8,000/­.  

       Regarding Purshottam Das, it is stated that he is agent of LIC. 

He leaves for job in the morning at about 9.30 and returns home at 7.30 

p.m.   His office is located in State Bank Complex, Chawala Colony, 

Ballabhgarh,  Code of his agentship has been described as 0016812J.    

       About Shiv Om, it is deposed that he was audio ­ video graphed 

in   which   he   admitted   that   he   was   engaged   in   the   cultivation   of 

agricultural land.  

       Report   about   Janardhan  Prasad   is  that   he   was  working  as  an 

electrician for quite some time at "Jyoti Trading Corporation" located 

at 1/43 A, NIT, Faridabad­121001.  The shop was owned by Mr. M.L. 

Kapoor whose mobile number was 9213364054.  He was earning Rs.

8,000/­ per month.   He was also audio ­ video graphed in which he 

admitted that he was working as an electrician.  

       In this way, the management has discharged onus of proof that 

Satish Kumar, Pursottam Das, Shiv Om and Janaradhan Prasad were 

gainfully employed after termination of their services.  

ID 121/10/94 & ID 120/10/94                                                   33/54
 53.    Regarding other claimants, the management did not examine any 

other witness.  It is not in dispute that workmen are residing in NCR. 

After termination of their services, they are running their household. 

In this portion of the country, there is no  dearth of employment.  At 

the   most,   it   can   be   said   that   their   terms   of   employment   and 

remuneration   may   not   be   so   attractive   as   were   when   they   were 

employed with the management. 



ADDITIONAL   ISSUE   No.5   in   Tikam   Singh's   case   and  

ADDITIONAL ISSUE  no.4 in Megh Raj Singh's case:­


Whether   the   reference   is   bad   in   law   on   the   ground   that   the  
appropriate government has not taken into account the pleadings of  
the parties before the conciliation officer and whether this plea at all  
can be raised before this Court. OPM


54.    The burden of proving this issue was on the management.  In the 

written arguments of the management nothing has been stated by the 

management in respect of this issue.  Accordingly, the issue is liable to 

be  decided as not pressed by the management.   Even the workmen 

have also not stated a single word in respect of the issue in their written 

ID 121/10/94 & ID 120/10/94                                                 34/54
 arguments.  Even otherwise, neither party relied upon any pleadings of 

the parties before the Conciliation Officer in its respective evidence. 

Hence, the issue is decided in favour of the workmen and against the 

management. 



ADDITIONAL ISSUE No.2 in Tikam Singh's case:­

Whether Shri Sone Lal and Mohan Singh themselves voluntarily 
abandoned their services? OPM



55.    As   noted   above,   it   is   not   disputed   between   that   both   these 

workmen were transferred by the management to Madras Unit and that 

neither of them joined his duties at Madras.   As noted above, in its 

written statement the management has relied upon Standing Order 12 

(d) to contend that since both these workmen did not join their duties at 

Madras and were, therefore, absent continuously and without any prior 

sanction of leave, they are deemed to have abandoned the services of 

the   management   on   their   own   and,   thus,   their   names   automatically 

stood   dropped   from   the   muster   Rolls  of  the   management.   In  their 

separate rejoinders both these workmen have stated that no reply to the 

Standing Order mentioned by the management is required.  It is clear 

that   both   these   workmen   admit   that   Standing   Order   12   (d)   of   the 

ID 121/10/94 & ID 120/10/94                                                    35/54
 management provides contended by the management. It is pertinent to 

mention   here   that   in   their   entire   respective   claims   neither   of   these 

workmen have challenged the Standing Order on any ground much less 

on the ground that they violate principles of natural justice.  Since it is 

admitted by the workmen that the Standing Order as contended by the 

management exits, it is clear the action of the management under the 

said Standing Order cannot be stated to be illegal or unjustified. Even 

otherwise,   as   noted   above   both   these   workmen   relied   upon   the 

evidence of the workmen Tikam Singh and R D Yadav in support of 

their case.  Neither R D Yadav nor Tikam Singh stated anything about 

these two persons in their respective affidavits filed as examination­in­

chief. 



56.      In 2003 ( 98) FLR 261, Tin Box Company Vs Inderjit Singh, 

it has been held as follows:

               "4. He has also placed a decision of the Allabad High  
               Court in Airtech Private Ltd. v. State of Uttar Pradesh  
               and others, wherein a similar fact situation had arisen.  In  
               the said decision, it has been observed that the statement  
               of   claim   supported   by   the   affidavit   of   the   workman  
               constitute   the   preliminary   evidence   and   it   is   upon   the  
               Management / employer to controvert the same and if not  
               so controverted then nothing further needs to be proved  

ID 121/10/94 & ID 120/10/94                                                       36/54
              and   done   by   the   workman.     However,  the   primary  
             responsibility   of   establishing   his   case   rests   on   the  
             workman.   And in that case, the Allahabad High Court  
             held that the Labour Court had patently erred in holding  
             that   the   burden   of   proof   lay   upon   the   employers.     It  
             further   held   that   the   obligation   to   lead   evidence   to  
             establish an allegation made by a party is on the party  
             making the allegation.  The test would be, who would fail  
             if no evidence is led. The party making the allegation and  
             seeking   redressal   must   seek   an   opportunity   to   lead  
             evidence.  A similar view was taken by the Division Bench  
             of the said Allahabad High Court in the case of V.K. Raj  
             Industries v. Labour Court and others. 
             5. Agreeing with the view taken in the said decision of the  
             Allahabad   High   Court,   I   hold   that   the   impugned  
             orders   dated 22nd February, 1989 passed by the Labour  
             Court asking the petitioner to lead evidence first cannot  
             be sustained in law an, I accordingly quash the same. The  
             workman is to lead evidence first as it is he who has to  
             establish his allegations.   The matter is remanded to the  
             Labour Court for adjudication as per provisions of law. It  
             is made clear that this Court has not expressed its view on  
             the merits of the reference.  In these circumstances there  
             shall be no order as to costs."
                                       

57.   It is clear from the authority the initial burden of proving his 

case was on the workman.  




ID 121/10/94 & ID 120/10/94                                                    37/54
 58.    It is clear that no evidence has been led by or on behalf of these 

two   workmen.     Hence,   it   is   held   that   the   workman   Sone   Lal 

abandoned his services on his own.  The issue is, accordingly, decided 

in favour of the management and against Sone Lal.  This issue is not 

required   to   be   decided   in   respect   of   Mohan   Singh   Raghav   as 

management   has   settled   the   dispute   with   him   consequent   to   which 

settlement award has already been passed. 



       Whether the closure of unit at Okhla is justified?

59.    Ld. ARW argued that management was running several factories 

at   Faridabad   Okhla   and  other  places  in  India.     The strength   of   the 

workmen   in  Faridabad factory alone is more than 1000.   Only one 

factory   located   at   Okhla  was  closed.    He  further  submitted  that  all 

offices are controlled from the registered located at Connaught Place, 

Delhi. The accounts are also being maintained at the registered office. 

Balance   sheets   and   other   communications   with   the   government   are 

made from the registered office. All dealings with the sales tax and 

income tax departments and that of import and export matters are dealt 

by the registered office. The workers were liable to be transferred from 

one   branch   to   other   branch   and   from   one   department   to   other 



ID 121/10/94 & ID 120/10/94                                                  38/54
 department.   He submitted that strength of workers of all the factories 

should be taken into account and hence provisions of Chapter VB of 

the Industrial Disputes Act are applicable.  

              On   the   other   hand,   ld.   ARM   argued   that   provisions   of 

Section VA are applicable because strength of workers at Okhla office 

was less than 100.   He further submitted that when the claimants were 

fired from the job, their number was 38.  



60.    In  Workmen of Indian Leafs Tobacco Development Co. Ltd.  

Vs. Management, AIR 1970, SC 860, the Apex Court held that no 

Industrial Tribunal, even in a reference u/s 10(1) (d) can interfere with 

the  discretion exercised by a company in the matter of closing down 

some of its branches or depots.  Such stoppage of part of a business is 

an act of  management which is entirely in discretion of the company 

carrying on the business. 

              In  Hindustan   Steel   Limited   Vs.   The   Workmen   and  

others,   1973   3   SCC,   564,   the   Apex   Court   held   that   the   word 

"undertaking" as used in Section 25­FFF  seems to have been used in 

its ordinary sense connoting thereby any work, enterprise, project or 

business undertaking.   It was further held that it was not intended to 


ID 121/10/94 & ID 120/10/94                                                   39/54
 cover   the   entire   industry   or   the   business   of   the   employer   as   was 

suggested on behalf of the claimants.   Even closure or stoppage of a 

part of the business or activities of the employer would seem in law to 

be covered by this sub­section.   

               In Workmen Vs. Straw Board  Manufacturing Company  

Ltd.   (1974)   4   SCC   681,   the   Supreme   Court   laid   down   the   test   of 

closure   of   unit   and   observed   that   most   important   aspect   in   a   case 

relating to closure is whether one unit has such componental relation 

that the closing of one must lead to the closing of the other or the one 

cannot reasonably exist without the other.  



61.            So, the sole factor to decide functional integrity is whether 

the closure of one unit would lead to the closure of other.  It the case of 

the claimants themselves that when the unit at Okhla was closed, other 

units were still working.  So, closure of units at Okhla did not lead to 

the closure of other unit.  Hence, it is held that there was no functional 

integrity between other unit and Okhla unit.   That conclusion gains 

strength from Section (cc) of the Act which reads as under :­

"2(cc)   "Closure"   means   the   permanent   closing   down   of   a   place   of  

employment or par thereof".    


ID 121/10/94 & ID 120/10/94                                                      40/54
        So, the Labour Court is to see the strength of the workers of the 

closed unit.   It the case case of the workers that about 196 persons 

were transferred to Okhla unit on 10.08.1991 from Faridabad as per 

triparty agreement dated 28.05.1991.  Notice for lay off was displayed 

on   11.03.1992   and   management   was   closed   down   on   20.05.1992. 

Before it, 114 workers had opted employment at other unit.   So, 82 

workers were left who did not want to join the other unit.  Hence, the 

number of workers was 82 and after termination of their services, their 

strength was only 38. So, it is held that provisions of Chapter VA of 

the  Act   are  applicable   and  not  of  VB.   This conclusion is further 

strengthened   by   the   following   portion   of   judgment   of  District   Red  

Cross Society Vs. Babita Arora and Others, (2007) 7 Supreme Court  

Cases 366:­

         "9.   The   question  which   arises   for   consideration   is  
         whether   the  respondent  is  entitled  to protection of  

Section 25­F and 25­G of the Act if the establishment in which she was working itself has been closed down though certain other wings or units of the appellant District Red Cross Society, Karnal have not been closed down and are still functioning. Section 25­F of the Industrial Disputes Act lays down the conditions precedent to retrenchment of workmen and it reads as under :

"25­F. Conditions precedent to retrenchment of ID 121/10/94 & ID 120/10/94 41/54 workmen. ­ No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until­
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette."

10. Section 25­FFF deals with compensation to workmen in case of closing down of undertakings. The relevant part of sub­section (1) of Section 25­ FFF (omitting the proviso) reads as under :

"25­FFF. Compensation to workmen in case of closing down of undertakings­(1) where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub­section (2), be ID 121/10/94 & ID 120/10/94 42/54 entitled to notice and compensation in accordance with the provisions of Section 25­F, as if the workman had been retrenched:
Provided..."

Therefore, the legislature has treated closing down of undertakings which automatically result in termination of services of all workmen working therein differently from a retrenchment simpliciter as defined in Section 25­F of the Act.

        ­­                 ­­            ­­                ­­
        13.  In   Workmen   Vs.   Straw   Board     Manufacturing  

Company Ltd. (1974) 4 SCC 681, this Court laid down the test of closure of unit by observing that the most important aspect in a case relating to closure is whether one unit has such componental relation that the closing of one must lead to the closing of the other or the one cannot reasonably exist without the other. Functional integrity will assume an added significance in the case of closure.

14. It appears that after the aforesaid decisions of the Supreme Court, the legislature by an amendment made in the year 1982 to the Industrial Disputes Act defined the word "closure" by adding Section 2(cc). Section 2(cc) of the Act reads as under:­ "2. (cc) 'closure' means the permanent closing down of a place of employment or part thereof;"

15. It is, therefore, clear that in order to attract Section 25­FFF it is not necessary that the entire establishment or an employer should be closed. If a unit or part of an undertaking which has no ID 121/10/94 & ID 120/10/94 43/54 functional integrity with other units is closed, it will amount to closure within the meaning of Section 25­ FFF of the Act. In J.K. Synthetics v. Rajashthan Trade Union Kendra, it has been observed that the closure need not be of the entire plant. A closure can also be of a part of the plant. In Maruti Udyog Ltd. v. Ram Lal, (2005) 2 SCC 638, it was held as under in para 21 of the Report:(SCCp.647) "21. How far and to what extent the provisions of Section 25­F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25­FF and Section 25­FFF of the 1947 Act leaves no manner of doubt that Section 25­ F thereof is to apply only for the purpose of computation of compensation and for no other. The expression 'as if' used in Section 25­FF and Section 25­FFF of the 1947 ACt is of great significance. The said term merely envisages computation of compensation flowing therefrom. Both Section 25­FF and Section 25­ FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."
ID 121/10/94 & ID 120/10/94 44/54

16. The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25­ FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25­F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of all appellant Red Cross Society like Drug Deaddiction­cum­Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units viz. Drug Deaddiction­cum­Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from the Government and are functioning as separate entities and the mere fact that termination of services of the respondent was by way of retrenchment which was illegal on account of non­compliance with the provisions of Section 25­F of the Act."

ID 121/10/94 & ID 120/10/94 45/54

Effect of closure?

62. Following was held in M/s Maruti Udyog Ltd. vs. Ram Lal ( supra):­ "27. Applicability of Section 25 H of the 1947 Act in the case of closure of an undertaking came up also for consideration before this Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh etc. v. Presiding Officer, Labour Court, Chandigarh and others etc. (1990) 3 SCC 682), wherein a Constitution Bench in no uncertain terms held:

"....... Very briefly stated Section 25 FFF which has been already discussed lays that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub­section (2), be entitled to notice and compensation in accordance with the provisions of Section 25 F, as if the workman had been retrenched" ( Emphasis supplied). Section 25 H provides for re­employment of retrenched workmen. In brief, it provides that where any workmen are retrenched, and the employer proposes to take into his employment any person, he shall give an opportunity to the retrenched workmen to offer themselves for re­employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of ID 121/10/94 & ID 120/10/94 46/54 an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to workman " deemed to be retrenched" a right to claim re­employment as provided in Section 25 H. In such cases, as specifically provided in the relevant sections the workmen concerned would only be entitled to notice and compensation in accordance with Section 25 F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workmen is " as if the workmen had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of Section 25 F".
­­ ­­ ­­ ­­ ­­ ­­ ­­ ­­ ­­
33. We have noticed hereinbefore that the consequences other than payment of compensation envisaged in Section 25 F of the 1947 Act cannot, thus, be invoked in favour of the Respondents in view of the fact that they were not in the employment of the company on the appointed day i.e. on 13.10.1990."

63. In the event of closure of enterprise, the position has been cleared by the Apex Court in S.M. Nilajkar And Others Vs. Telecom District Manager, Karnataka, (2003), 4 Supreme Court Cases 27 in the following words :­ "16. It is pertinent to note that in Hariprasad ID 121/10/94 & ID 120/10/94 47/54 Shivshanker Shukla V. A.D. Divelkar (7 AIR 1957 SC

121) the Supreme Court held that "retrenchment" as defined in Section 2(oo) and as used in Section 25­F has no wider meaning than the ordinary accepted connotation of the word, that is, discharge of surplus labour or staff by the employer for any reason whatsoever otherwise than by way of punishment inflicted in disciplinary action. Retrenchment was held to have no application where the services of all workmen were terminated by the employer on a real and bona fide closure of business or on the business or undertaking being taken over by another employer. The abovesaid view of the law taken by the Supreme Court resulted in promulgation of the Industrial Disputes (Amendment) Ordinance, 1957 with effect from 27.04.1957, later on replaced by an Act of Parliament (Act 18 of 1957) with effect from 6.6.1957 whereby Section 25­FF and Section 25­ FFF were introduced in the body of the Industrial Disputes Act, 1957. Section 25 FF deals with the case of transfer of undertakings with which we are not concerned. Section 25­FFF deals with closing down of undertakings. The term "undertaking" is not defined in the Act. The relevant provisions use the term "industry". Undertaking is a concept narrower than industry. An undertaking may be a part of the whole, that is, the industry. It carries a restricted meaning. (See Banglore Water Supply & Sewerage Board v. A Rajappa (1978) 2 SCC 213 and ID 121/10/94 & ID 120/10/94 48/54 Hindustan Steel Ltd. v. Workmen (1973) 3 SCC 564.) With this amendment it is clear that closure of a project or scheme by the State Government would be covered by closing down of an undertaking within the meaning of Section 25­FFF. The workman would therefore be entitled to notice and compensation in accordance with the provisions of Section 25­F though the right of the employer to close the undertaking for any reason whatsoever cannot be questioned..."

64. In view of the citation of Maruti Udyog Ltd. Vs. Ram Lal and Others and S.M. Nilajakar and others (supra), it is held that the workmen who had completed one year in the enterprise are entitled to the compensation as per Section 25­F of the I.D. Act, in case enterprise is closed down for whatsoever reason.

ISSUE NO. 2 i.e. "As per terms of reference" of both cases and issue No. 3 of Tikam Singh's case.

65. Although in Tikam Singh's case, the terms of reference pertain to the termination of services of the workmen, it is the case of the workmen except Mohan Singh Ragav and Sone Lal in their claims, particularly the prayer made therein where they have sought the ID 121/10/94 & ID 120/10/94 49/54 benefits from the date of retrenchment. The prayer makes it clear that their case is of retrenchment only and not of termination. The terms of reference in Megh Raj Singh's case is basically regarding retrenchment of workmen.

It is the admitted position of both the parties that the factory at Okhla has been closed down. In the case of closure, the workmen who have completed one year in the job, are entitled to compensation as per Section 25­F of the I.D. Act. As per Section 25­F of the I.D. Act, one month's notice is to be given to the workman to be retrenched. If the notice is not given, he is to be paid wages for the period of notice.

Further, he is required to be paid retrenchment compensation which shall be equal to 15 days average pay for every completed year of continuous service.

66. It is the admitted position of the parties in cross examination that no individual notice was given to the retrenched workmen. Rather, a composite notice was pasted on the notice board of the factory. In Alumina Mazdoor Sangh and Others Vs. Ratna Construction Co. and Others, 2003­I­LLJ, Orissa 793, pasting of notice of retrenchment on the notice board was held not substitute for ID 121/10/94 & ID 120/10/94 50/54 the individual notice. The Hon'ble High Court of Orissa held that pay in lieu of notice was necessary. It has been pleaded by ld. ARM that notice pay plus closure compensation was given to the workmen.

Some workmen like Shiv Om, Sukhbir Singh and Hari Nath Singh have encashed the compensation cheques.

Workmen Satish Kumar Kapoor, Yudhisthar Rai, Rajinder Singh, Ranjit Singh and Purshottam Das had completed 10 years, 8 years, 5 years, 5 years and 3 years with the management. The workmen Satish Kumar, Ravi Dutt Tyagi, Dilasa Ram, Rakesh Kumar had completed 5 years, 5 years, 4 years and 3 years with the management. Compensation cheques were sent to them, but they refused to take delivery. Those cheques have been placed on the file.

Workmen Tikam Singh, Megh Raj Singh and Janaradhan Prasad had completed 8 years, 5 years and 6 years with the management. They had taken delivery of compensation of cheques, but did not get encashed. Workmen Shiv Om, Sukhbir Singh and Hari Nath Singh had completed 5 years, 5 years and 3 years with the management and they have utilized the closure compensation.

67. Workmen Satish Kumar Kapoor, Yudhisthir Rai, Rajinder ID 121/10/94 & ID 120/10/94 51/54 Singh, Ranjeet Singh, Purshottam Das, Satish Kumar, Ravi Dutt Tyagi, Dilasa Ram and Ramesh Kumar were given notice pay and closure compensation of Rs.7,410, Rs.6147, Rs.3689/­, Rs.3084, Rs.

2347, Rs.3084, Rs.3,622, Rs.2958 and Rs.2352 respectively whereas they were entitled to Rs.9180, Rs.7620, Rs.4721, Rs.4630/­, Rs.3,085, Rs.4630, Rs.4655, Rs.3841/­ and Rs.3,090/­ respectively. Workmen Tikam Singh, Megh Raj Singh and Janaradhan Prasad were sent notice pay and closure compensation of Rs.6,022/­, Rs.3078/­ and Rs.4224/­ whereas they were entitled to Rs.7495/­, Rs.4,623/­ and Rs.5404/­ respectively. Workmen Shiv Om, Sukhbir Singh and Hari Nath consumed / utilized the notice pay and closure compensation of Rs.

3689/­, Rs.3650/­ and Rs.2347/­ respectively, but they were entitled to Rs.4,721/­, Rs.4683/­ and Rs.3,085/­ respectively. Hence, above stated workmen were not given adequate compensation as per Section 25­F of the I.D. Act and hence their retrenchment is illegal.

68. Ld. ARM argued that the workmen Shiv Om, Sukhbir Singh and Hari Nath Singh have utilized compensation cheques and hence they are entitled to nothing. This argument by ld. ARM has been cut to size by Nar Singh Pal Vs. Union of India and Others, ID 121/10/94 & ID 120/10/94 52/54 (2000) 3 Supreme Court Cases 588 in which it was held that acceptance of retrenchment compensation cannot validate an invalid order of termination.

Relief

69. Claimants were not given adequate compensation as per Section 25­F of the I.D. Act. So, a compensation to the tune of Rs.

25,000/­ per year for every year completed in the service is given to the workmen.

Grant of compensation.

70.

  S.             Name               Date of        Date of     Compensation
  No.                               joining     retrenchment
  01.    Sh. Satish Kumar Kapoor   12.01.1982    20.05.1992    Rs.2,50,000/­
  02.       Sh. Yudhister Rai      02.05.1984    20.05.1992    Rs.2,00,000/­
  03.      Sh. Rajender Singh      14.09.1987    20.05.1992    Rs.1,25,000/­
  04.       Sh. Ranjeet Singh      21.11.1987    20.05.1992    Rs.1,25,000/­
  05.      Sh. Purshottam Dass     13.06.1989    20.05.1992     Rs.75,000/­
  06.       Sh. Satish Kumar       28.11.1987    20.05.1992    Rs.1,25,000/­
  07.      Sh. Ravi Dutt Tyagi     07.11.1987    20.05.1992    Rs.1,25,000/­
  08.        Sh. Dilasha Ram       22.07.1988    20.05.1992    Rs.1,00,000/­
  09.    Sh. Rakesh Kumar Tyagi    30.01.1989    20.05.1992     Rs.75,000/­



ID 121/10/94 & ID 120/10/94                                               53/54
   10.      Sh. Tikam Singh        21.02.1984   20.05.1992   Rs.2,00,000/­
  11.     Sh. Megh Raj Singh      05.12.1987   20.05.1992   Rs.1,25,000/­

12. Sh. Janaradhan Prashad 07.06.1986 20.05.1992 Rs.1,25,000/­

13. Sh. Shiv Oum 02.11.1987 20.05.1992 Rs.1,25,000/­

14. Sh. Sukhvir Singh 24.10.1987 20.05.1992 Rs.1,25,000/­

15. Sh. Hari Nath Singh 13.06.1989 20.05.1992 Rs.75,000/­

71. The management is directed to pay the said amount to the abovesaid workmen within a month from the date of publication of this award failing which it shall be liable to pay interest @ 12 per cent per annum from today till realization. Award is passed accordingly

72. Copy of this judgment be placed in the case file of Megh Raj Singh.

73. The requisite number of copies be sent to the Govt. of NCT of Delhi for publication of the award. File be consigned to record room.

Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 07.07.2015. POLC­XVII/KKD, DELHI.

ID 121/10/94 & ID 120/10/94 54/54