Delhi District Court
Between The vs The on 3 December, 2022
IN THE COURT OF AJAY GOEL, PRESIDING OFFICER LABOUR
COURT -06, ROUSE AVENUE DISTRICT COURT, D.D.U. MARG,
NEW DELHI
LIR No. 7744/16
Date of Institution 07.10.2016
Date of Award 03.12.2022
BETWEEN THE WORKMAN
Sh. Chandan S/o sh. Jagdish Age: 24 Yas, R/o B-231, Tigri Extn. Ambedkar
Nagar, New Delhi-110062.
Through Delhi Readymade & Leather Karmchari Union (Regd.) A-704,
Transit Camp, Rajiv Gandhi Colony, Govindpuri, New Delhi-110019.
AND
THE MANAGEMENT OF
M/s R & A (Rahul and Anushka)
No-200, Purani Chopal, Shahpurjat, Near Khel Gaon Hauzkhas, New Delhi.
AWAR D
1. By this award I shall dispose of the reference sent by the Joint Labour
Commissioner (South District), Labour Department, Govt. of the National
Capital Territory of Delhi arising between the parties named above to this
court vide notification No. F-24(94)/Lab/SD/2016/6520 dated 06.04.2016
with the following terms of reference:-
"Whether the services of Sh. Chandan S/o Sh. Jagdish
have been terminated illegally and/or unjustifiably by
the management; and if so, to what relief is she entitled
and what directions are necessary in this respect?"
2. After receipt of reference notice was issued to workman with directions
to file statement of claim which was filed stating therein that the workman
had been working with the management continuously since 06.08.2013 at the
post of Tailor and his last drawn salary was Rs. 12000/- per month, that the
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workman during his services never gave any chance of complaint to the
management; that the management was not providing various facilities under
the provisions of labour law like leave book, salary slip, attendance card,
yearly and weekly leave, bonus, overtime, TA, HRA etc; that when the
workman demanded the same, the management got annoyed and terminated
the services of the workman on 10.09.2015 and withheld his salary w.e.f.
01.08.2015 to 09.09.2015; that the workman through his union filed a
complaint on 14.09.2015 before labour officer; that Labour Inspector also
visited the management but the management refused to take back the
workman on duty; that workman sent a demand notice dated 13.09.2015 to
the management; that the management neither took back the workman nor
replied the same; that the workman thereafter filed a complaint before Labour
Commissioner; that notice of the said claim was sent to the management but
the management did not cooperate in the conciliation proceedings and the
conciliation proceedings failed; that thereafter, was referred to labour court
for adjudication; that no notice, no chargesheet was given to the workman
before his termination; that the workman was not paid retrenchment
compensation; that the management had terminated the services of the
workman illegally and unjustified in violation of the provisions of Section 25
of the Industrial Dispute Acts.
Lastly, it has been prayed that an award be passed in favour of the
workman and against the management thereby directing the management to
reinstate the workman with continuity of services and full back wages and
all consequential benefit.
3. Management contested the claim of the workman and filed its WS
wherein, the averments of the claim have been denied by the Management.
The Management has taken the preliminary objections that the correct name
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and description of the management is "RNA" and not "R&A (Rahul &
Anuska)", and as such, the reference is bad and incompetent in law; that the
workman had taken all his full and final amounting to Rs. 11790/ on
10.08.2015, therefore, no industrial Dispute as defined U/S 2A of the
Industrial Dispute Act, 1947 exists.
On merits, it was stated that workman was appointed w.e.f. 01.03.2014;
that management was providing all legal facilities as per labour law; that no
demand notice was ever received by the management. All other averment
made in the claim were specifically denied by the management.
Lastly it has been prayed that the claim of the workman be dismissed
with cost.
4. On pleadings of the parties, following issues were framed by my Ld.
Predecessor vide order dated 02.05.2019 :-
(1) Whether the claim of the workman is not maintainable in view of the
preliminary objection No.1 of WS? OPM
(2) Whether the workman has taken all his full and final amounting to Rs.
11790/- on 10.08.2015? OPM
(3) As per terms of reference. OPW
(4) Relief.
Thereafter, matter was listed for workman evidence.
5. In workman evidence, the claimant examined himself as WW1. He
tendered his evidence by way of affidavit Ex WW1/A and relied upon
documents i.e. Ex WW1/1 to Ex WW1/4. He was also cross-examined by the
management.
The workman closed his evidence on 26.11.2019.
6. In ME, despite sufficient opportunities, the management did not lead any
evidence. Management also stopped appearing in the matter and accordingly,
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ME was closed vide order dated 08.06.2022. Thereafter, matter as listed for
final arguments.
7. At the time of final arguments also, none appeared on behalf of the
management and accordingly, arguments on behalf of the workman were
heard and matter was listed for orders.
8. My issue-wise findings are as under:
Issue No. 1 Whether the claim of the workman is not maintainable in view of
the preliminary objection No.1 of WS? Issue No. 2 Whether the workman has
taken all his full and final amounting to Rs. 11790/- on 10.08.2015? and
Issue No. 3 As per terms of reference.
All the above issues are taken up together, being inter-connected.
9. Onus to prove Issue No. 1 and 2 was upon the management and onus
to prove Issue No. 3 was upon the workman.
As far as Issue No. 1 is concerned, perusal of WS filed on behalf of the
management show that at one place name of the management is mentioned as
"R & A (Rahul & Anuskha)" and at the other it has been mentioned as
"RNA". In the authority letter filed on behalf of the management also, in title
name of the management is mentioned as "R and A Rahul and Anushka" and
at the place of signatures, stamp of "RNA" is affixed.
During the cross-examination of the workman by the management, the
workman stated that it is correct that the name of the management is "R N A"
and not "M/s R & A (Rahul And Anuska)". The address of the management
as mentioned in the reference as well as in the ESIC temporary identify
certificate, Ex WW1/4, is also the same. Thus, the identity of the
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management is not in dispute and " R and A Rahul and Anushka" and "R
NA" are the same and as such, this issue does not effect the decision of the
case. The management should have raised this issue at the time of reference
only. Moreover, management in its WS has not denied the relationship of
employer and employee.
The claim of the workman is that he was working with the management
since 06.08.2013 at the post of Tailor and his last drawn salary was Rs.
12000/- per month and his services were terminated illegally by the
management on 10.09.2015.
Workman during his cross-examination denied the suggestion that he
was appointed with the management w.e.f. 01.03.2014. He further stated that
he does not have any proof to show that he was employed w.e.f. 06.08.2013.
The workman, in order to prove the relationship of employer and employee
has duly proved on record documents i.e. copy of demand notice dated
13.09.2015 as Ex WW1/1, Original postal receipt as Ex WW1/2, Copy of
statement of claim filed before ALC as Ex WW1/3 and copy of ESI
Temporary identification certificate as Ex WW1/4.
Perusal of document Ex WW1/4, shows that it bears the name of the
workman as well as the name of the management as RNA and its address as
mentioned in the reference.
10. So far as issue No. 2 is concerned, the plea taken by the management in
its WS is that the workman had taken all his full and final amounting to Rs.
11790/ on 10.08.2015, therefore, no industrial Dispute as defined U/S 2A of
the Industrial Dispute Act, 1947 exists.
The workman in his crossexamination has denied the suggestion that
he had taken his full and final dues from the management on 20.08.2015. He
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denied that document i.e. copy of full and final settlement, Mark E, bears
his signatures. However, the management has not produced any document
in support of his case and had chosen to remain absent. Management neither
examined any witness nor produced any record to disprove the case of the
workman. The full and final settlement has not been proved by the
management. Onus to prove the above fact was upon the management as per
Section 101 of Indian Evidence Act. But, they have failed to do so. It is
settled law that if any party fails to prove the contention and as per 1988,
Delhi 332 and AIR 1968, SC 1413, adverse inference has to be taken against
them. Accordingly, the claim of claimant has remained unrebutted and
unchallenged and there is no reason to disbelieve version of the workman.
In view of the above discussion, it is held that workman was an
employee of the management and his services were terminated illegally and
unjustifiably by the management. Accordingly, all the issues are decided in
favour of the workman and against the management.
Issue No. 4 Relief
As far as relief part is concerned, the workman in para 6 of his affidavit
has specifically stated that despite efforts he could not get any job. Workman
has not placed on record any document to show that he was not gainfully
employed during the time and as to what efforts he had made to get other job
on his being unemployed. Hence, his claim that he was unemployed, is not
accepted. The workman must have done some work for his survival and it
cannot be said that he is unemployed since the date of termination and thus,
he is not entitled to back wages.
This court is of the opinion that since both the parties have lost faith in
each other, reinstatement of the workman in service would not be in the
interest of both the parties and the compensation in lieu of reinstatement
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would be a better option.
On this point, this court finds support from the judgment of the
Hon'ble Supreme Court of India in case titled as Employers, Management
of central P & D Inst. Ltd Vs Union of India & Another, AIR 2005 Supreme
Court 633 in which it was held that
"it is not always mandatory to order reinstatement
after holding the termination illegal and instead
compensation can be granted by the court."
Similar views were expressed by the Hon'ble Delhi High Court in
case titled as Indian Hydraulic Industries Pvt. Ltd Vs Krishan Devi and
Bhagwati Devi & Ors. ILR (2007) I Delhi 219 wherein it was held by the
court that
"even if the termination of a person is held illegal,
Labour Court is not supposed to direct reinstatement
along with full back wages and the relief can be
moulded according to the facts and circumstances of
each case and the Labour Court can allow
compensation to the workman instead of
reinstatement and back wages."
Further since much time has elapsed since date of termination of
services of the workman, it cannot be presumed that he would have remained
idle for such a long period.
It has to be kept in mind that the workman has not stated about what
efforts he had made to secure the alternate employment after the alleged
termination. [2011 (131) FLR 24], the Hon'ble Bombay High Court stated in
the case that no evidence led by the respondent to show that they made any
efforts to secure employment during pendency of the litigation-respondents not entitled to any back wages.
In 2021 LLR 1040, the Hon'ble Supreme court of India also stated in para 'C' that workmen is not entitled to relief of back wages if he has not LIR No. 7744/16 Page 7 of 8 pleaded that he was not gainfully employed after his dismissal and has not proved his version by leading cogent and convincing evidence. The workman has not proved that he was not gainfully employed. Simple statement cannot be taken as proof and he should have proved that he tried many places by applying but did not get the job. Some overt act was required to be brought on record. Therefore, keeping in view all these facts and also keeping in view the aforesaid law point, this court deems it appropriate to grant a lump sum compensation to the workman in lieu of her reinstatement.
Since no record of salary has been produced by the workman and it has also not been proved that what actual salary workman was getting, this court grants a lump sum compensation of Rs. 60,000/- (Sixty thousand) to the claimant/workman in lieu of his reinstatement and all other consequential benefits. The amount of compensation shall be paid to the workman by the management within one month from the date when this award becomes enforceable failing which the amount shall carry an interest @ 9% p.a. from the date it becomes due till the time it is realized.
With these observations the statement of claim of the workman filed under the provisions of the Industrial Disputes Act is disposed off. Reference is answered and disposed off accordingly.
A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules. PRONOUNCED IN OPEN COURT ON 03.12.2022 (AJAY GOEL) PRESIDING OFFICER:LABOUR COURT-06 ROUSE AVENUE DISTRICT COURT NEW DELHI.
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