Delhi District Court
Workman Sh. Ashwini Grover Raised An ... vs Telecom District Manager on 4 August, 2007
IN THE COURT OF SH. O.P. SAINI, PRESIDING OFFICER,
LABOUR COURT NO. VII, DELHI.
I.D. NO. : 245/2004
B E T W E E N
The workman Sh. Ashwini Gorver
C/o Pramod Kumar Sharma
170, Balmukund Khand,
Giri Nagar, Kalkaji,
New Delhi.
A N D
The Management of M/s Lalit Nayak
Managing Director
Indian Gypsm Ltd.
8th Floor, 15/17, Tolstoy House,
Tostoy Marg, New Delhi.
Ref.: F.(709)/2004/Lab.797801 dated 23.6.2004.
A W A R D
1.Workman Sh. Ashwini Grover raised an industrial : 1 : (RC) dispute against his illegal termination from services, which was referred to this court for adjudication by the Secretary (Labour), Government of National Capital Territory of Delhi, in the following terms of reference : "Whether the services of Sh. Ashwini Grover S/o Late Sh. A.L. Grover have been terminated illegally and/or unjustifiably by the management, and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. Brief facts of the case as made out from the record are that the workman was appointed as depot incharge by the management at Delhi on monthly salary of Rs.3,705/ along with other allowances with effect from 2.9.96. He was put on probation and was confirmed in service after one year. The workman used to work with utmost dedication and his last drawn wages were Rs.10,500/ per month. It is claimed that management is engaged in manufacturing and trading of : 2 : (RC) monopolized item gypsum plaster board. It is alleged that in the month of December, 2002, the management came out with their illegal and unlawful scheme of removing the employees who were working with the management for sometime. The management called the workman on 23.12.2003 and asked him to resign from service without any rhyme or reason. The management tried to force the workman to sign on his resignation and when the workman resisted he was told not to report for duty from the next day. The workman was left with no option and he approached the labour commissioner with a complaint on the very next day, that is, 24.12.2003. It is claimed that the management did not agree to take the workman on duty and ultimately the matter was referred to this court. It is claimed that on the one hand, the management did not take the workman on duty with effect from 23.12.2003 and on the other hand, sent a letter dated 24.3.2004 alleging that he was absenting from duty and was directed to report for duty : 3 : (RC) immediately. When the workman went to office to resume duty in response to the said letter, he was not allowed to join the same. The workman wrote a letter to the management but to no use. It is claimed that the workman has been terminated by the management in illegal and unjustifiable manner in violation of section 25 F of the Industrial Disputes Act (hereinafter to be referred as the 'Act'). It is prayed that since the termination is illegal, the management may be directed to reinstate him with all consequential benefits including continuity of service and full back wages.
3. Management contested the claim and filed its written statement taking a preliminary objection that claimant is not a "workman" as he was working as depot incharge. It is claimed that he was working in managerial capacity. It is admitted that he was appointed with effect from 2.9.96. On merit, it is claimed that claimant voluntarily abandoned his : 4 : (RC) service since 22.12.2003. It is repeatedly claimed that since the workman himself abandoned the employment, he could not ask for reinstatement. It is claimed that on 23.3.2004 personal department was informed that workman was absenting from duty with effect from 22.12.2003 and, thereafter, a letter was written to the workman on 24.3.2004 informing him that he was absent from duty with effect from 22.12.2003 and asking him to report for duty. It is also claimed that the workman was also asked to report for duty before the assistant labour commissioner, but he never joined the same in response to the directions of the assistant labour commissioner. A letter dated 10.4.2006 was also written to the workman asking him to show cause as to why his name should not be struck off from the muster rolls of the management for abandonment of his service. The said letter was received by the claimant but he failed to resume duty. Accordingly, his name was struck off with effect from 10.8.2007 in terms of standing orders of the company and : 5 : (RC) the claimant was asked to collect his legal dues. It is repeatedly claimed that the workman himself abandoned his employment and, as such, he is not entitled to any relief. It is prayed that the claim may be dismissed.
4. Workman filed rejoinder to the written statement, wherein he denied the allegations contained in the written statement and reasserted the averments made in the statement of claim.
5. On the pleadings of the parties, following issues were settled for trial vide order dated 13.4.2006 : I) Whether the workman abandoned his employment? II) Whether the workman is entitled to reinstatement with consequential benefits?
III) Relief.
: 6 : (RC)
6. In support of his case workman has examined himself as WW1, and has placed on record his own affidavit Ex.WW1/A, along with documents Ex.WW1/1 to 7.
7. On the other hand, management has examined Sh.
V.K. Bhatnagar as MW1, who has placed on record his affidavit Ex.MW1/A, along with documents Ex.MW1/1 to 5.
8. I have heard the arguments at the bar and have carefully gone through the file.
9. My findings on the issues are as under : ISSUES NO.1 TO 3:
10. All issues shall be disposed of together as they are interconnected.
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11. It is submitted by learned authorized representative (Ld. AR) for workman that he was not allowed to join duties with effect from 23.12.2003. It is repeatedly claimed that workman joined the duties with effect from 2.9.96 and worked sincerely till 22.12.2003. However, the management asked him to resign his service and when the workman resisted he was told not to report for duty with effect from 23.12.2003 and when he reported for duty he was not allowed to resume the duties. It is submitted that on the very next day, the workman lodged a complaint with the assistant labour commissioner vide Ex.WW1/5. It is submitted that workman never abandoned his employment and his services have been terminated illegally and unjustifiably and he may be ordered to be reinstated with consequential benefits including continuity of service and full back wages.
12. On the other hand, Ld. AR for the management : 8 : (RC) submitted that the workman abandoned his employment with effect from 22.12.2003. It is submitted that the management offered to take him back on duty before the assistant labour commissioner but he did not report for duty. It is also submitted that management wrote letters Ex. MW1/2, 3 and 5 to the workman asking him to report for duty but he did not report and ultimately his services were terminated vide order dated 10.8.2004, Ex.MW1/5. It is submitted that since the workman himself abandoned his employment, he is not entitled to any relief.
13. Section 2(oo) of the Act defines "retrenchment" as under: "'retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include
(a) voluntary retirement of the workman; or : 9 : (RC)
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf ; or (bb) termination of the service of the workman as a result of the nonrenewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill health"
14. In an authority reported as S.M. Nilajkar & Ors.
Vs. Telecom District Manager, Karnataka (2003) 4 SCC 27, Hon'ble Supreme Court dealt with the meaning of "retrenchment" and observed in paragraph 12 as under : "Retrenchment" in its ordinary connotation is discharge of labour as surplus though the business or work itself is continued. It is well settled by a catena of decisions that labour laws being beneficial pieces of legislation are to be : 10 : (RC) interpreted in favour of the beneficiaries in case of doubt or where it is possible to take two views of a provision. It is also well settled that Parliament has employed the expression "the termination by the employer of the service of a workman for any reason whatsoever" while defining the term "retrenchment", which is suggestive of the legislative intent to assign the term "retrenchment" a meaning wider than what it is understood to have in common parlance. There are four exceptions carved out of the artificially extended meaning of the term "retrenchment", and therefore, termination of service of a workman so long as it is attributable to the act of the employer would fall within the meaning of "retrenchment" dehors the reason for termination. To be excepted from within the meaning of "retrenchment" the termination of service must fall within one of the four excepted categories. A termination of service which does not fall within categories (a), (b), (bb) and (c) would fall within the meaning of "retrenchment".
15. Section 25 F of the Act, provides conditions to be complied with at the time of retrenchment of a workman and : 11 : (RC) lays down as under : "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 the 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 for such authority as may be specified by the appropriate Government by notification in the Official Gazette"
16. In an authority reported as G.T. Lad & Ors. Vs. Chemicals & Fibres of India Ltd. 1979 AISLJ 318, Hon'ble : 12 : (RC) Supreme Court observed that for deciding whether there is abandonment of service or termination, following points are to be kept in mind :
(a) To constitute abandonment there must be total or complete giving up of duties so as to indicate an intention not to resume the same.
(b) Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf.
(c) Whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstances of each case.
(d) If the employees absent themselves from the work because of strike in enforcement of their demands, there can be no question of abandonment of employment by them.
17. The claim of the workman is that he was : 13 : (RC) terminated by the management by way of refusal of duties with effect from 23.12.2003, when he refused to tender his resignation as per wishes of the management. On the contrary, the management claims that he abandoned his employment with effect from 22.12.2003 and did not report for duty despite repeatedly being asked by the management to do so as well as on the orders of assistant labour commissioner. Now, let me examine as to which of two versions is correct?
18. The claim of the workman is that he was not allowed to resume duty with effect from 23.12.2003, when he refused to tender his resignation. He wrote a letter dated 24.12.2003, Ex.WW1/5 to the assistant labour commissioner about the incident and requested him to intervene into the matter. The workman had deposed these facts in his affidavit.
The workman has been crossexamined in detail by the management and these facts have gone unchallenged in the : 14 : (RC) crossexamination. The fact that he was not allowed to resume duty on 23.12.2003 has not been challenged by the management in the crossexamination. The fact that he lodged a complaint Ex.WW1/5 with the assistant labur commissioner on 24.12.2003 has also gone unchallenged. On the other hand, management wrote first letter to the workman on 24.3.2004 vide Ex.MW1/3. If the workman was absenting with effect from 22.12.2003, why the management wrote to him after three months asking him to report for duty, more so when as per their own version he was working in a very sensitive position. The management is not expected to wait for three months when an employee posted in a very sensitive position is absenting from duties unauthorizedly or has abandoned his employment without any rhyme or reason for three months. As such, the version of the management does not inspire any confidence that the workman himself abandoned his employment. Moreover, abandonment of employment by an employee cannot be inferred : 15 : (RC) readily in the absence of any other fact or circumstance. MW1 Sh. V.K. Bhatnagar has admitted in his crossexamination that no inquiry was conducted in the absence/abandonment of duties by the workman. As such, when the management remained silent for over three months regarding the absence/abandonment of duties by the workman and no inquiry was conducted, it cannot be believed that the workman himself abandoned his employment. The management, as such, has failed to prove that the workman himself abandoned his employment or is absenting from duties.
19. As such, the version of the workman appears to be correct that he was not allowed to resume duties with effect from 23.12.2003, more so, when the same has gone unchallenged and uncontested in the crossexamination. I, accordingly, hold that the workman has been terminated illegally and unjustifiably by the management in violation of : 16 : (RC) section 25 F of the Act. Since the termination is illegal and unjustified, the same is set aside.
20. Now, the question is as to what relief, the workman is entitled? In an authority reported as The Workmen of M/s Firestone Tyre & Rubber Co. of India (Pvt.) Ltd. etc. vs. The Management & Ors. 1973 (1) SCC 813, Hon'ble Supreme Court in paragraph 32 sub paragraph 10 observed as under: "10. In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in The Management of Panitole Tea Estate Vs. The workmen (1971) 1 SCC 742 within the judicial decision of a Labour Court of Tribunal."
21. Similarly, in another authority reported as Nehru Yuva Kendra Sangathan Vs. Union of India & Ors. 2000 IV AD (Delhi) 709, Hon'ble Delhi High Court dealt with the : 17 : (RC) question of reinstatement and back wages and observed in paragraphs 27 and 28 as under : "27. We find from the decision of the Supreme Court rendered in the 1970s and 1980s that reinstatement with back wages was the norm in cases where the termination of the services of the workman was held inoperative. The decisions rendered in the 1990s, including the decision of the Constitution Bench in the Punjab Land Development and Reclamation Corporation Ltd., Chandigarh seem to suggest that compensation in lieu of reinstatement and back wages is now the norm. In any case, since we are bound to follow the decision of the Constitution Bench, we, therefore, conclude that reinstatement is not the inevitable consequence of quashing an order of termination; compensation can be awarded in lieu of reinstatement and back wages.
28. Considering the facts of this case, we are persuaded to award compensation in lieu of reinstatement and back wages to the workman ...................................................... ....................................................................."
: 18 : (RC) 22. Similarly, in another authority reported as M.L.
Binjolkar Vs. State of Madhya Pradesh, 2005 VI (S.C.) 413, Hon'ble Supreme Court observed in paragraph 7 as under : "................ Though the High Court has not specifically dealt with the question as to what would be the appropriate quantum, keeping in view the law laid down by this Court in various cases e.g. Hindustan Motors Ltd. Vs. Tapanj Kumar Bhattarcharya & Anr. (2002 (6) SCC 41), Rajendra Prasad Arya Vs. State of Bihar (200 (9) SCC 514), Sonepat Cooperative Sugar Mills Ltd. Vs. Ajit Singh (2005 (3) SCC 232), Haryana State Cooperative Land Development Bank Vs. Neelam (2005 (5) SCC 91), Manager, Reserve Bank of India, Bangalore Vs. S. Mani & Ors. (2005 (5) SCC 100) and Allahabad Jal Sansthan Vs. Daya Shankar Rai & Anr. (2005 (5) SCC 124), we do not find any scope for interference. The earlier view was that whenever there is interference with the order of termination or retirement, full back wages were the natural corollary. It has been laid down in the cases noted above that it would depend upon several factors and the court : 19 : (RC) has to weigh the pros and cons of each case and to take a pragmatic view. ........."
23. Similarly in another authority reported as U.P. State Brassware Corporation Limited and another Vs. Uday Narain Pandey, (2006) 1 SCC 479, Hon'ble Supreme Court observed in paragraph 56 as under:
56. A Division Bench of this Court in M.L. Binjolkar v. State of M.P. (2005) 6 SCC 224, referring to a large number of decisions, held: (SCC p. 228, para 6) "6 [7] ... The earlier view was that whenever there is interference with the order of termination or retirement, fullback wages were the natural corollary. It has been laid down in the cases noted above that it would depend upon several factors and the Court has to weigh the pros and cons of each case and to take a pragmatic view."
: 20 : (RC)
24. In the instant case, workman has worked with the management with effect from 2.9.96 to 23.12.2003. The management has not come out with any reason for his termination. However, considering the length of service as well as the strained relations between the parties, I am not inclined to order reinstatement. In the facts and circumstances of the case, payment of compensation would be a better option.
25. Considering the length of service as well as last drawn salary of the workman, I deem it proper that compensation of Rs.1,50,000/ would be appropriate and would meet the ends of justice. I, accordingly, grant compensation of Rs.1,50,000/ (Rupees One Lakh Fifty Thousand only) to the workman, to be paid by the management within one month of the publication of the award, failing which interest at the rate of 10% (ten percent) would be payable by the management to the workman. All issues are accordingly, decided in favour of the : 21 : (RC) workman and against the management.
26. The reference is answered in the above terms and award is passed accordingly. Six copies of the award be sent to the appropriate government. File be consigned to record room.
Dated : 4.8.2007 (O.P. SAINI)
PRESIDING OFFICER, LABOUR
COURT NO. VII, DELHI.
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