Delhi District Court
{The Requisite Details Of The vs Laljeet Yadav & Ors on 9 June, 2023
Page 1 of 23
IN THE COURT OF MS. NAVITA KUMARI BAGHA, PRESIDING OFFICER,
LABOUR COURT07, ROUSE AVENUE DISTRICT COURT, NEW DELHI
LIR No.2750/2019
CNR No. DLCT130064802019
Smt. Krishna Singh
W/o Sh. Akhilesh Kumar
R/o S566, School Block,
Shakarpur, Delhi
{The requisite details of the Workman in compliance to judgment of
Hon'ble High Court of Delhi titled as "Director General of Works
(CPWD) Vs. Laljeet Yadav & Ors., W.P.(C) No.2540/2021, DOD
16.07.2021" are as follows:
Permanent Address of the Workman:
S573B, 2nd Floor, School Block, Shakarpur, Delhi110092.
Present Address of the Workman:
S573B, 2nd Floor, School Block, Shakarpur, Delhi110092.
Mobile Number of the Workman:
8383804165
Name and Mobile Number of the AR of the Workman:
Sh. Amit Tripathi
Mob. No. 9818985343
Details of one of immediate family member of the Workman:
Miss Yamini Shrivastava (Daughter)
Mob. No. 7065316606
LIR No.2750/2019
Krishna Singh Vs. M/s. Aeon Market Research Pvt. Ltd.
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AADHAR Card Number of the Workman:
8407 9604 8344}
............ Workman
Vs.
M/s. Aeon Market Research Pvt. Ltd.
4344, DSIDC SchemeII, Okhla Phase2,
New Delhi
Also at:
221, 2nd Floor, Okhla Industrial Area, Phase3,
New Delhi
.......... Management
Date of receiving of Reference : 01.11.2019
Date of passing Award : 09.06.2023
AWARD
1. Vide Reference No.F24(588)/Lab./SD/2019/22096 dated 02.09.2019,
the following Reference from Joint Labour Commissioner was
received on 01.11.2019 for adjudication, sent by him U/Sec.10(1)(c)
and 12(5) of Industrial Disputes Act, 1947 read with Govt. of India,
Ministry of Labour Notification No. S110011/2/75/DK(IA) dated
14.04.1975 and Notification No. F1/31/61/616/Estt./2008/7458 dated
03.03.2009 in respect of industrial dispute between the Workman
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Krishna Singh Vs. M/s. Aeon Market Research Pvt. Ltd.
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Smt. Krishna Singh and Management M/s. Aeon Market Research
Pvt. Ltd. :
"Whether the services of Smt. Krishna Singh W/o
Sh. Akhilesh Kumar 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. Notice of aforesaid Reference was issued to the Workman. Statement
of Claim was filed by the Workman on 21.01.2020. The brief facts as
stated in her Statement of Claim are as follows:
1. That the Workman had been working with the
Management on the post of Collection Executive
w.e.f. 01.11.2017 and her last drawn wages were
Rs.13,500/ per month.
2. That the Workman had worked with utmost
sincerity and honesty and never given any chance
of complaint to the Management.
3. That the Management had not provided her the
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legal facilities viz. appointment letter, identity card,
leave book, overtime card, travelling allowance,
salary increment, bonus, national & festival
holidays, earned leave, etc. and when she raised
demand for said facilities, the Management got
annoyed at her and illegally terminated her
services on 08.02.2019 without giving any notice or
Chargesheet and without conducting any domestic
enquiry against her and thus, violated the
provisions of Sec.25F of Industrial Disputes Act,
1947.
4. That thereafter she sent through Labour Union a
Demand Notice dated 17.05.2019 to the
Management, but despite service of said notice,
neither any reply was given by the Management
nor she was reinstated nor her dues were paid.
5. That thereafter she filed a complaint in the Labour
Department. Though the Representatives of the
Management appeared before the Labour Inspector
but they refused to reinstate her and to make
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payment of unpaid dues.
6. That thereafter she filed her Statement of Claim in
the Labour Office, but there also the matter could
not be resolved due to the noncooperative attitude
of the Management.
3. Notice of Statement of Claim was issued to the Management and
after service of notice, Written Statement was filed by the
Management on 27.09.2021, wherein it was submitted that the
Workman was working with the Management as Data Collection
Officer and that she was engaged for interviewing females for
Sanitary Napkins, but she was not adhering to the standard working
hours i.e. 8 hours in a day as she was not even working for half day.
It was further submitted that the Management had never terminated
the services of the Workman, rather she herself had stopped taking
calls w.e.f. 07.02.2019 when she was confronted by the client for not
complying with the quality norms and that due to her habitual
absenteeism and late and short deliveries, the Management suffered
losses. It was denied that she had visited the Management's office
several times after 07.02.2019 for requesting to reinstate her on job.
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4. Rejoinder to Written Statement was filed by the Workman on
01.11.2021, wherein she denied the contents of the Written
Statement and reiterated and reaffirmed the contents of her
Statement of Claim as true and correct.
5. Vide order dated 07.04.2022, the following issues were framed for
adjudication:
1. Whether the services of the Workman have been illegally and/or
unjustifiable terminated by the Management? OPW
2. Relief.
6. In order to prove her case, the Workman examined only one witness
i.e. herself as WW1. But nobody had appeared from the side of
Management to crossexamine her and therefore, opportunity of
Management to crossexamine WW1 was closed vide order dated
29.11.2022. Despite grant of opportunity, no evidence was led by the
Management.
7. The Workman/WW1, in her affidavit of evidence i.e. Ex.WW1/A, has
reiterated and reaffirmed the contents of her Statement of Claim.
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While reiterating the averments made in her Statement of Claim, she,
in order to prove her case, has exhibited the following documents:
(i) Ex.WW1/1 - Demand Notice dated 17.05.2019.
(ii) Ex.WW1/2 (colly) - Two Postal Receipts vide which the
aforesaid Demand Notice was sent to the Management.
(iii) Ex.WW1/3 - Report dated 20.05.2019 of Labour Inspector.
(iv) Ex.WW1/4 - Action Taken Report dated 13.09.2021 of
Inspecting Officer under Payment of Bonus Act.
(v) Ex.WW1/5 - Official Identity Card of the Workman, issued to
her by the Management.
(vi) Mark WW1/Z1 - Copy of ESI Contribution Details of
Workman.
(vii) Mark WW1/Z2 - Copy of PF Statement of Workman.
8. I have heard the final arguments from Sh. Amit Tripathi, AR of
Workman, but nobody has appeared from the side of Management to
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address arguments. I have perused the record.
9. My issuewise findings are as under :
ISSUE NO.1
Whether the services of the Workman have been illegally and/or
unjustifiable terminated by the Management?
10. The onus to prove this issue was upon the Workman. So far as the
relationship of employeeemployer between the Workman and
Management is concerned, the same has been duly admitted by the
Management in its Written Statement. The case of the Workman is
that she was working with the Management on the post of Collection
Executive w.e.f. 01.11.2017 but her services were illegally terminated
by the Management on 08.02.2019, whereas the case of the
Management is that the Workman was neither performing her duty
properly nor she was punctual and regular in attending her duty and
she herself had stopped attending her duties w.e.f. 07.02.2019.
11. For proving her case, the Workman/WW1 has deposed in her
affidavit of evidence i.e. Ex.WW1/A that she was working with the
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Management on the post of Collection Executive w.e.f. 01.11.2017
and her last drawn wages were Rs.13,500/ per month and that she
had worked sincerely and honestly and never given any chance of
complaint to the Management, but the Management had not provided
her the legal facilities viz. leave book, overtime card, salary as per her
designation, bonus, salary increment, casual leave, festival holidays,
etc. and when she raised demand for said facilities, the Management
got annoyed at her and illegally terminated her services on
08.02.2019 without giving any notice or Chargesheet and violated the
provisions of Sec.25F of Industrial Disputes Act, 1947. She has
further deposed that despite service of Demand Notice i.e. Ex.WW
1/1, she was not reinstated and that from the date of illegal
termination of her services, she is completely unemployed and could
not get any employment despite various efforts made by her. Since
she was not crossexamined by the Management, therefore, her
testimony has gone unchallenged and uncontroverted. So, I have no
reason to disbelieve her testimony and thus in this scenario, hold that
the Workman has become successful in proving the aforesaid facts.
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12. If we analyze the case of the Management, we find that the
Management in its Written Statement has taken the plea of
absenteeism and abandonment of job by the Workman. But the
Management has utterly failed to prove the said alleged fact as it has
not led any evidence.
13. Abandonment of job means voluntary and absolute relinquishment of
job. The failure to perform duties must be with actual or imputed
intention on the part of the employee to abandon and relinquish the
job. Temporary absence is not ordinarily sufficient to constitute an
abandonment of office. In Buckingham Co. Vs. Venkatiah & Ors .
(1964) 4 SCR 265 the Hon'ble Supreme Court has held that under
common law an inference that an employee has abandoned or
relinquished service is not easily drawn unless from the length of
absence and from other surrounding circumstances an inference to
that effect can be legitimately drawn and it can be assumed that the
employee intended to abandon service. Abandonment or
relinquishment of service is always a question of intention, and
normally, such an intention cannot be attributed to an employee
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without adequate evidence in that behalf. Thus, whether there has
been a voluntary abandonment of service or not is a question of fact
which has to be determined in the light of surrounding circumstances
of each case.
14. Though, in the present case, the Management should have proved its
averment of abandonment of job by the Workman, but it has failed to
do so as no evidence was led by it. The Workman/WW1, on the other
hand, has categorically deposed in her affidavit of evidence that he
had sent Demand Notice dated 17.05.2019 i.e. Ex.WW1/1 to the
Management mentioning therein about illegal termination of her
services by the Management and making demand for her
reinstatement, but despite service of said notice, the Management did
not give any reply to the said notice. The Management has neither
crossexamined the WW1 nor denied the service of aforesaid Demand
Notice. Therefore, the service of aforesaid Demand Notice is deemed
to be affected on the Management. Failure to reply to the said notice
makes a case for drawing an adverse inference against the
Management. Had the stand, taken by Management regarding
abandonment of job by the Workman, been correct, the Management
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would have replied to the Demand Notice of Workman denying therein
her allegation of illegal termination; and asserting its point of
abandonment of job by the Workman herself. But it never did so. Thus,
it is not a case where it could be said that the Workman had voluntarily
and willfully absented from duty or herself abandoned the job.
15. Now even if it is presumed for the sake of arguments that the
Workman herself had stopped attending to her duties, then it was the
duty of Management to ask her to join duty because it is settled law
that if a Workman fails to report for duty, the Management is bound to
call upon him to join duty. It has been held by Hon'ble Delhi High Court
in M/s. Fateh Chand Vs. Presiding Officer, Labour Court & Anr.,
2012(3) SCT 724 as follows:
"It is also no more res integra that even in a case of
unauthorized absenteeism or to prove abandonment
of service on the part of the workman the
management must place on record necessary
material to prove that enough efforts were made by it
to call upon the workman to resume back his duty
and the workman has shown his clear reluctance for
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the same."
16. But in the present case, no such material has been placed on record.
The Management has nowhere stated that it had asked the Workman
to join duty during the period of her absenteeism. Nor is it a case of
Management that it had issued any notice during the said period to the
Workman to join duty.
17. It has been held by Hon'ble Delhi High Court in Municipal
Corporation of Delhi Vs. Sukhvir Singh & Ors., 53 (1994) DLT 821
that when the employment of the Workman is not for a specific period,
then the denial of employment to him by the employer/management
shall have to be only according to law and if the Workman has
abandoned the employment certainly that could have been a ground
for holding an enquiry against him and passing appropriate order.
18. It has been held by Hon'ble Delhi High Court in Fateh Chand's case
(supra) as follows:
"It is also a settled legal position that abandonment
of service is different from absenteeism.
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Abandonment of service is the voluntarily
relinquishment of one's services with the intention
not to resume the same. It is a matter of inference to
be drawn from the facts and circumstances of each
case and mere absenteeism for a continuous period
does not mean that the employee has abandoned his
service. The management has to bring on record
sufficient material to show that the employee has
abandoned the service and abandonment cannot be
attributed to the employee without there being
sufficient evidence. On the failure to report for duty,
the management has to call upon the employee and if
he refuses to report, then an enquiry is required to be
ordered against him and accordingly action taken. In
the absence of anything placed on record by the
petitioner management, no presumption against the
respondent can be drawn."
(underlining added)
19. Thus, it is clear that when any Workman abandons the job, then it is incumbent upon the Management to call him upon to report for duty LIR No.2750/2019 Krishna Singh Vs. M/s. Aeon Market Research Pvt. Ltd. Page 15 of 23
and on his refusal to do so, to hold enquiry against him. But in the present case, admittedly no such enquiry was held. Nor any evidence is produced on record in support of any effort made by the Management to call upon the Workman to join her duty.
20. Thus, it is clear that it is not a case of abandonment of job by the Workman rather it is a case of retrenchment. The Workman has proved that she had worked with the Management w.e.f. 01.11.2017 to 08.02.2019, meaning thereby that she had worked for more than 240 days during the period of twelve calendar months preceding the date of her last working day. It is settled law that once the workman has completed 240 days of continuous service, the termination of his services without complying with the provision of Sec.25F of Industrial Disputes Act, 1947, is illegal. It has been held by Hon'ble High Court of Delhi in Rameshwar Dayal Vs. Presiding Officer, Labour Court, Delhi, (Delhi), 2007(5) AD (Delhi) 138 that once the requirement of 240 days of continuous service is fulfilled, the workman cannot be retrenched without following and/or complying with the provision of Section 25F of the Industrial Disputes Act. The LIR No.2750/2019 Krishna Singh Vs. M/s. Aeon Market Research Pvt. Ltd. Page 16 of 23
Hon'ble Court has held as follows:
"In view of various judgments of the Apex court and this court, it is now a settled position of law that irrespective of whether a workman was daily wager or not, once he has completed 240 days of continuous service, the termination of his services without complying with the provision of Section 25F of the Act, is illegal. It was held by a division bench of this court in the case of Delhi Cantonment Board v. Central Government industrial Tribunal and Ors., 129(2006) DLT 610 (DB) that in industrial law there is no difference between permanent and temporary employees as in service law and that as long as a person is a "workman" within the meaning of Section 2(s) of the Act and had put in 240 days of service in the year prior to the date of termination of his service, it is mandatory to comply with the provision of Section 25F of the Act."
21. As per Sec.25F, the employer is bound to give to Workman, at the time of retrenchment, one month's notice or pay in lieu thereof and a LIR No.2750/2019 Krishna Singh Vs. M/s. Aeon Market Research Pvt. Ltd. Page 17 of 23
compensation equivalent to 15 days' average pay for every completed year of continuous service. The present case is not one where the Management had issued any notice or given any notice pay or retrenchment compensation to the Workman in accordance with Sec.25F of Industrial Disputes Act. Hence, it is held that the termination of services of Workman by the Management is illegal. Accordingly, this issue is decided in favour of the Workman and against the Management.
Relief:
22. The Workman has prayed for her reinstatement in service with full back wages and continuity of service with all consequential benefits.
23. It has been held by Hon'ble Supreme Court in Hindustan Tin Works (P) Ltd. Vs. Employees of M/s Hindustan Tin Works Pvt. Ltd. & Ors., (1979) 2 SCC 80 that full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. It has been further held in the said case by Hon'ble Apex Court as follows:
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"When it was held that the termination of services was neither proper nor justified, it would not only show that the workmen were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workmen were always ready to work but they were kept away therefrom on account of an invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them."
24. It is pertinent to mention here that in the landmark judgment titled as Deepali Gundu Surwase Vs. Kranti Junior Adhyapak & Ors., 2013(10) SCC 324, the Hon'ble Supreme Court has held that in cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. The Hon'ble Apex Court has held as follows:
"The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee LIR No.2750/2019 Krishna Singh Vs. M/s. Aeon Market Research Pvt. Ltd. Page 19 of 23
will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasijudicial body or Court that the action taken by the employer is ultra vires the relevant LIR No.2750/2019 Krishna Singh Vs. M/s. Aeon Market Research Pvt. Ltd. Page 20 of 23
statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."
25. It has also been held in Deepali Gundu's case (supra), "Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully LIR No.2750/2019 Krishna Singh Vs. M/s. Aeon Market Research Pvt. Ltd. Page 21 of 23
employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments."
26. In the present case, the Workman/WW1 has specifically deposed in her affidavit of evidence that she had been unemployed since the day of illegal termination of her services and could not find any job despite efforts made by her. Thus, the onus had shifted to the Management LIR No.2750/2019 Krishna Singh Vs. M/s. Aeon Market Research Pvt. Ltd. Page 22 of 23
to prove the contrary. The Management was required to lead cogent evidence of gainful employment of the Workman during the said period. But the Management has failed to do so. Otherwise also, the Management has not pleaded in its Written Statement that the Workman was gainfully employed. Thus, there is no pleading or evidence from the side of Management regarding gainful employment of the Workman and hence, it is clear that the Management has failed to prove that the Workman was gainfully employed after illegal termination of her employment on 08.02.2019.
27. The Hon'ble Supreme Court in Deepali Gundu's case (supra) has held that the Courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
28. Hence, in view of the aforesaid discussion/analysis and the law laid down by the Hon'ble Apex Court, the Statement of Claim as filed by LIR No.2750/2019 Krishna Singh Vs. M/s. Aeon Market Research Pvt. Ltd. Page 23 of 23
the Workman is allowed and the Management is directed to reinstate the Workman in service with continuity of service and full back wages along with all other consequential benefits.
29. Award is passed accordingly. Reference stands answered in aforesaid terms. Copy of this Award be sent to Labour Commissioner for publication. Case file be consigned to the Record Room.
(Announced in open Digitally signed
by NAVITA
Court on 09.06.2023) NAVITA KUMARI
BAGHA
KUMARI Date:
BAGHA 2023.06.09
16:01:27
+0530
(Navita Kumari Bagha)
Presiding Officer, POLC07,
Rouse Avenue District Court, New Delhi
LIR No.2750/2019
Krishna Singh Vs. M/s. Aeon Market Research Pvt. Ltd.