Delhi District Court
Sh. Rajbir Singh vs M/S Cobra Group on 11 September, 2007
1
IN THE COURT OF SH. S.K. SARVARIA,
PRESIDING OFFICER LABOUR COURT, No. XII, KARKARDOOMA,
DELHI
DID No. 57/2007
INDUSTRIAL DISPUTE BETWEEN
Sh. Rajbir Singh,
S/o Sh. Budhsen,
C/o Sh. P.L. Shrivastava, Authorised Representative,
C-B-280, Ring Road, Naraina,
New Delhi - 110028. ..........Workman.
AND
M/s Cobra Group,
C-128/1, Mohammad Pur Gaon,
New Delhi - 110066. ...........Management.
Date of Institution: 23.3.2007
Date of Argument: 18.8.2007
Date of award:11.09.2007
DID NO. 57/2007
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AWARD
1.This direct industrial dispute is raised by filing statement of claim under Section 10 (4A) Industrial Disputes Act 1947 (in short Act) by the workman aforesaid alleging in brief that he was employed with the management as Field Worker for the last 1 year, on the last drawn wages of Rs. 5000/- per month. He was working with honesty and dedication but the management did not provide him with the legal facilities like overtime, bonus, appointment letter, attendance card, leave book, pay slip, yearly leave, etc. etc. On demand of the same the management became annoyed and after obtaining the signatures of the workman on blank papers, vouchers etc., terminated the services of workman on 1.11.2006, by abusing the workman.
2. A demand notice dated17.3.2007 was sent by workman by registered AD/UPC, which was neither replied nor complied with by the management. An application was made to the Labour Department, but despite efforts of the Labour Inspector, the workman is neither given job nor his balance wages were paid. The workman is unemployed from the DID NO. 57/2007 3 date of termination of his services. The workman has prayed for reinstatement to the job with continuity of service and full back wages.
3. The notice was issued to the management on 2.4.2007, to appear in the court on 4.4.2007. But none appeared on behalf of management despite service on 4.4.2007, so the management was proceeded with exparte.
4. In the exparte evidence the workman has filed his affidavit in evidence and he gave statement as WW-1 regarding tendering of his affidavit in evidence.
5. I have heard the learned authorised representative of the workman, and have gone through written arguments filed on his behalf, record of the case and relevant provisions of law carefully.
6. The workman in his affidavit in evidence has proved the facts stated in the statement of claim as referred before. He has proved the documents copy of the demand notice dated 16.3.2007/17.3.2007 Ex. DID NO. 57/2007 4 WW-1/1, the postal receipt of the demand notice Ex. WW-1/2, the postal receipt of demand notice sent through speed post Ex. WW-1/3, receipt of Under Postal Cover Ex. WW-1/4, report of the Labour Inspector dated 14.3.2007 Ex. WW-1/5, Copy of the complaint dated 16.3.2004 made to the Labour Department against the management Ex. WW-1/6, Identity card of the workman issued by the management on 18.1.2005 Ex. WW-1/7.
7. In the absence of cross examination of workman, the management being exparte and the authorised representative of the management having been de-barred in the court, whatever is stated by the workman in his affidavit in evidence remained unchallenged and unrebutted, so there is no reason to disbelieve the same.
8. The termination of services of any workman by the management on any ground whatsoever other than a punitive action or in the excluded categories (a) to (c) of Section 2(oo) of the Act 1947 amounts to retrenchment of the workman as defined in the said provision of law. If the workman had completed one year / 240 days of the continuous DID NO. 57/2007 5 service with the management, as on the date of termination of his services, then the management is required to comply with the provisions of Section 25F of the Act by payment of the requisite retrenchment compensation besides issuance of one month's notice or one month's notice pay in lieu thereof prior to retrenchment / termination of the service of the workman.
9. The relationship of workman and employer between the parties is not disputed in the pleadings. The workman in his unrebutted evidence has proved that he was working with the management for the last one year, but there is no record to show that the management has complied with the provisions of section 25-F of the Act. The management having not complied with the provisions of section 25-F of the Act while terminating the services of workman, therefore, the termination of services of workman is illegal.
10. The issue no.1 is, therefore, decided in favour of the workman and against the management.
DID NO. 57/2007 6
11. ISSUE NO.2 The burden to prove this issue was upon the management .The question now arises what relief should be granted to the workman, against the management. As none appeared on behalf of management despite service on 4.4.2007, so the management was proceeded with exparte. The management being exparte has failed to prove that the workman was unauthorisedly absent from duty w.e.f April 2006. Therefore, for want of evidence on behalf of management, the issuee is decided in favour of workman and against the management.
12. ISSUE NO.3 In the light of my findings on issue no.1, that the services of the workman were illegally terminated and the fact that the . Recently in U.P. State Brass ware Corporation Ltd. and others Vs. Uday Narain Pandey (2006) 1 SCC 479 the Apex Court has made the following observations:
"Before adverting to the decision relied upon by the learned counsel for the parties, we may observe that although direction to pay full back wages on a declaration that the order of termination was invalid DID NO. 57/2007 7 used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realising that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and /or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched."
13. In Lords Homeopathic Laboratories private Ltd. Vs. Ms. Lissi Unnikunju and others 2006 IV AD (Delhi) 739 (DB) our Hon'ble High Court the following observations were made:
"In a large number of cases, this court has granted compensation instead of reinstatement vide Model School for Mentally Deficient Child Vs. Mukh Ram Prasad Maurya and others 109 (2004) DLT 292, Suraj Pal Singh And others Vs. P.O, Labour Court and another 2002 v. AD (Delhi) 706; Harsha Tractors Ltd. Vs. Secretary (Labour) and others 2001 III AD (Delhi) 746; Sh. Pal Singh Vs. National Thermal Power Corporation Ltd. 2002 111 AD (Delhi) 1059; Sain Steel Products Vs. Naipal Singh and others 2001 LLR 566; R. Mugum and others Vs. The P.O. Labour Court and another 2000 VI AD (Delhi) and State Bank of India Vs. J.R.Surma 2002 VII AD (Delhi) 325.
Whether compensation should be awarded for DID NO. 57/2007 8 reinstatement is in the Tribunal's discretion vide United Commerce Bank Ltd. Vs. Secretary, U.P. Bank Employees Union and others AIR 1953 SC
437. Various factors have to be seen as to whether reinstatement or compensation should be granted vide The management of Bharat Kala Kendra Vs. R.K. Baveja, 1980 (40) FLR 244 (Delhi).
In Hindustan Steel Ltd. Vs. A.K. Roy, AIR 1970 SC 1401, the Supreme Court observed (vide paragraph
14): - "The Tribunal, however, has the discretion to award compensation instead of reinstatement if the circumstances of a particular case are unusual or exceptional."
This view was followed by a Division Bench of this Court in Jagat Singh Vs. Estate Officer 2002 V AD (Delhi) 713. The same view was taken in Rolston John Vs. CGIT 1995 Supp. (4) SCC 548; DTC Vs. Presiding Officer 2000 LLR 136; Nehru Yuva Kendra Vs. UOI 2000 IV AD (Delhi) 709; A.K. Chakraborty Vs. Saraswadpur Tea Company Ltd. (1982) 2 SCC 328 etc. In Employers, Management of Central P&D Inst. Ltd. Vs. UOI, AIR 2005 SC 633, the Supreme Court observed that it is not always mandatory to order reinstatement after holding the termination illegal and instead compensation can be granted. The same view was taken by a Division Bench of Delhi High Court in Pramod Kumar Vs. Presiding Officer, 123 (2005) DLT 509"
DID NO. 57/2007 9
14. In the present case the workman has worked for one year with the management and keeping in view over all facts and circumstances of the case and in the light of the above authorities the workman, in my view is entitled to a lump sum compensation in the sum of Rs. 25000/- against the management. in lieu of reinstatement to the job, continuity of service and full back wages. If the said amount is not paid within 2 months from the date of publication of the award, the workman will be entitled to interest @9% per annum from the date of award, till realisation of the said amount.
The reference is answered accordingly. The copies of the award be sent to learned Secretary (Labour), Government of National Capital Territory of Delhi. The award be also sent to the server(www.delhicourts.nic.in). The file be consigned to the record room.
ANNOUNCED IN THE OPEN COURT ON THIS 11th DAY OF SEPTEMBER, 2007.
(S.K.SARVARIA) PRESIDING OFFICER LABOUR COURT NO.XII, KARKARDOOMA COURTS, DELHI.DID NO. 57/2007