Delhi District Court
Sh. Adan Lal vs M/S Saket City Hospital on 24 July, 2023
IN THE COURT OF MS. BHAVNA KALIA, ADDL.
DISTRICT & SESSIONS JUDGE, POLC-V: RADC:DELHI
NEW LIR No : 6808/16
In the matter of :
Sh. Adan Lal
S/o Sh. Kumer Chand
R/o 3/129, Dakshin Puri Ext.
New Delhi- 110 062. ...Workman/ Claimant.
Versus
M/s Saket City Hospital
Mandir Marg, Saket,
New Delhi .....Management/ Respondent.
Date of Institution : 19.05.2015
Date of pronouncement of the judgment : 24.07.2023
AWARD
PART-A
REFERENCE
The Deputy Labour Commissioner, Govt of NCT, Delhi while exercising his power U/S 10 (1) (c) and 12 (5) of the Industrial Dispute Act, 1947 (hereinafter refer to as the Act) R/w Letter No.F-24(224/Lab./SD/2015/9137, dated 13.05.2015 has sent the following reference to this court for adjudication.
"Whether the services of Sh. Adan Lal S/o Sh. Kumer Chand have been terminated illegally and/or unjustifiably by the management; if so, to what relief is he entitled and what directions are necessary in this respect?"
PART-B CLAIM LIR No. 6808/16 Adan Lal vs. Saket City Hospital Page No. 1 of 26
1. The workman/claimant submitted in his statement of claim as follows:
a) that he was employed as a physiotherapist with the management since 01.03.2006 and his last drawn salary was Rs.12,854/- per month and that he was working sincerely, honestly and without any complaint;
b) that in the month of March, 2013 the management had started harassing him and had started asking him to submit his resignation and hence did not pay his wages for the month of March, 2013 despite several demands;
c) that he had lodged a complaint before Labour Inspector on 12.04.2013 but the management did not appear before the Labour Inspector nor paid his earned wages for the month of March, 2013;
d) that due to harassment by the management, he had suffered depression for which the doctor had advised him to take rest and hence he remained on leave;
e) that after fitness, he reported for duty on 16.06.2014 to 27.06.2014 but the management did not allow him to join his duties and terminated his services on 27.06.2014 without giving any notice, notice pay, retrenchment compensation and without paying his earned wages for the month of March, 2013 or any of his other legal dues;
f) that at the time of termination of his services many workmen junior to him were still in employment of the management;
g) that he had sent demand letter dated 30.06.2014 by speed post demanding the management to reinstate him with full back wages and continuity of service, which was LIR No. 6808/16 Adan Lal vs. Saket City Hospital Page No. 2 of 26 duly served upon the management but the management did not meet his demands;
h) that he had also sent a demand notice dated 29.07.2013 demanding Rs.12,854/- towards his unpaid earned wages for the month of March, 2013 which was duly served upon the management but the management failed to pay his earned wages and when he filed claim for his unpaid earned wages before the authority under Payment of Wages Act 1936, the management paid Rs.32,000/- towards his earned wages for the month of March, 2013 on 04.03.2015;
i) that he initiated conciliation proceedings before Conciliation Officer by filing statement of claim dated 06.08.2014 where the management appeared but did not file any reply and hence the conciliation proceedings failed and matter was referred to the court;
j) that he was unemployed till date despite his best efforts to get alternate employment and hence he was entitled to reinstatement with full back wages and continuity of service.
2. It is prayed by the claimant that an award may be passed in his favour and against the management holding his termination from work as illegal and directing the management to reinstate him in service with continuity of service and with full back wages and all consequential benefits along with costs.
PART-C MANAGEMENT'S STAND/REPLY
3. The management filed written statement and denied the LIR No. 6808/16 Adan Lal vs. Saket City Hospital Page No. 3 of 26 claim of the claimant submitting that there was no entity by the name of Saket City Hospital as impleaded in the statement of claim. It is stated that the claimant had never been terminated from work by the management and on the contrary he himself was guilty of unauthorised absenteeism from his service from 01.04.2013 resulting in abandonment of his employment. It is stated that management had indulged in several correspondences with the workman in order to ask him to report for duty but he remained absent. It is stated that a memorandum of settlement dated 04.03.2015 was signed between the claimant and management vide which both parties had arrived at an amicable settlement to the effect that if the management paid the amount of Rs. 32,000/- to the claimant, then the claimant would not have any further claim from the management under Payment of Wages Act, 1936, which amount was paid by the management to the Claimant before the Court.
4. Management has denied that claimant ever took any leave from the management and hence the question of reporting back to duties after long period of almost one year could not arise. It is further stated that the claimant was gainfully employed and earning much more than what he earned with the answering management.
5. It is prayed that claim of the claimant may be dismissed and no relief may be granted to him.
PART-D REJOINDER LIR No. 6808/16 Adan Lal vs. Saket City Hospital Page No. 4 of 26
6. The Workman denied the submissions made by management in the Written Statement and reiterated the submissions made by him in his Statement of Claim. He submitted that his services were illegally terminated on 27.06.2014 by the management and the management did not make any effort to call him back on duty. He further submitted that settlement in court was only qua matter pending under the Payment of Wages Act, 1936. He further stated that he was unemployed and was willing to join duty with the management.
PART-E ISSUES
7. From the pleadings of the parties, the following issues were framed by Ld. Predecessor Court vide order, dated 08.09.2017:
1. Whether the workman was running unauthorisedly absent from 01.04.2013? OPM
2. Whether the claimant has already settled his entire claim in the PWA as mentioned in the Preliminary objection of reply of the management ? OPM
3. Whether the service of the workman has been terminated illegally and/or unjustifiably by the management? OPW
4. Relief.
PART-F CLAIMANT'S EVIDENCE
8. The claimant tendered in evidence his affidavit Ex.
LIR No. 6808/16Adan Lal vs. Saket City Hospital Page No. 5 of 26 WW1/A and relied on documents from Ex. WW1/1 to Ex. WW1/24 and Mark 1 to Mark 3 which are as follows:-
a) Ex. WW1/1 is photocopy of letter of appointment (OSR);
b) Ex.WW1/2 is the photocopy of salary slip for January, 2013 (computer copy seen and returned);
c) Ex.WW1/3 is photocopy of complaint addressed to ALC (OSR);
d) Ex.WW1/4 is photocopy of report of Labour Inspector (OSR);
e) Ex.WW1/5 is photocopy of letter dated 19.04.2013 (Office copy seen and returned);
f) Ex.WW1/6 and Ex.WW1/7 are photocopies of courier and postal receipts (OSR);
g) Ex.WW1/8 is photocopy of letter dated 27.04.2013 (Office copy seen and returned);
h) Ex.WW1/9 to Ex.WW1/11 are photocopies of courier receipt, postal receipt and proof of delivery (OSR);
i) Ex.WW1/12 is photocopy of letter dated 27.05.2013 (Office copy seen and returned);
j) Ex.WW1/13 to Ex.WW1/15 are photocopies of courier receipt, postal receipt and proof of delivery (OSR);
k) Ex.WW1/16 is photocopy of demand notice dated 30.06.2014 (Office copy seen and returned);
l) Ex.WW1/17 and Ex.WW1/18 are photocopies of postal receipt and proof of delivery (OSR);
m) Ex.WW1/19 is photocopy of received copy of statement of claim filed before Conciliation Officer (Original received copy seen and returned);
LIR No. 6808/16Adan Lal vs. Saket City Hospital Page No. 6 of 26
n) Ex.WW1/20 to Ex.WW1/24 are photocopies of treatment prescription and medical certificates (OSR);
o) Mark M1 is photocopy of memorandum of settlement;
p) Mark M2 is photocopy of receipt;
q) Mark M3 is photocopy of cheque.
9. During his cross-examination, claimant stated that he was governed by the terms and condition as mentioned in the Ex.WW1/1. He admitted that there was no dispute with the management from 01.03.2006 to 31.03.2013 till he was working there. He voluntarily stated that he was not given salary for the Month of March 2013. He stated that generally, he used to be paid salary on the last date of the month. He placed his salary slip Ex.WW1/2, on record to show that he had been given salary on the last date of every month. He admitted that Ex.WW1/2 did not contain the date of 31.01.2013 so as to show that his salary had been disbursed on the last date of every month. He stated that he had not placed any documents to show that the salary was disbursed on the last date of every month. He admitted that he had been given salary for the previous month in the first week of subsequent month. He admitted that first complaint was made on 12.03.2013 to Labour Inspector since he was not paid his salary for the month of March 2013. He denied the suggestion that he had stopped coming to attend his daily duty with the management and therefore, he did not get his salary for the month of March 2013. He voluntarily stated that he had attended his duty till 18.04.2013.
10.He admitted that as per the terms of his appointment letter, LIR No. 6808/16 Adan Lal vs. Saket City Hospital Page No. 7 of 26 his job was transferable. He admitted that in the last week of month of March, he came to know that he had been transferred to some other department. He stated that thereafter, he joined the Department of Pulmonology with Dr. Prashant Sexana on 18.04.2013. He denied the suggestion that in the month of March when he came to know about his transfer, he tried to get the transfer stopped at his level but could not succeed. He denied the suggestion that when he could not stop his transfer to the department of Pulmonology on his own, he remained absent from 01.04.2013 to 17.04.2013.
11. He admitted that he had made an application to Assistant Labour Commissioner, South District for non payment of his salary. He admitted that he did not request for disbursal of his salary to his superiors in the Management in writing.
12.He stated that he worked there only for two days on 18.04.2013 and 19.04.2013. He voluntarily stated that he was being harassed by all the staff present in that Department. He did not place any documents to show that he had worked for two days with the Pulmonology Department. He stated that thereafter, he got sick and went into depression and took leave for 10 days. He stated that his depression continued till 15.06.2014 and then on 16.06.2014, he went there to join his duties till 27.06.2014 but the management did not allow him to even enter the premises.
13. He stated that he had placed documents to show that he was sick and was under treatment for depression vide LIR No. 6808/16 Adan Lal vs. Saket City Hospital Page No. 8 of 26 documents Ex.WW1/20 to Ex.WW1/24. He admitted that he had not filed documents for his future treatment from 26.07.2013 to 15.06.2014. He denied the suggestion that since he was not under any depression during the above said period, therefore, he could not place such documents on record to support so.
14. He admitted that he had approached the relevant Court under Payment of Wages, Act for settlement of his grievance regarding the non payment of his salary for the month of March, 2013. He admitted that his grievance with the management was settled as per settlement Mark M-1 dated 04.03.2015 (wrongly typed as 31.07.2019).
15.He stated that he was still unemployed and dependent upon his father's pension which was Rs. 24,000/- per month. He stated that his family consisted of himself, his wife aged about 46 years, his son aged about 23 years, daughter aged about 20 years and his mother aged about 76 years and his father aged about 82 years.
16. He admitted that in the present scenario physiotherapists are in demand and can earn handsomely. He voluntarily stated that he tried at number of places to get work but no one took him on job. He denied the suggestion that he did not know the skills of physiotherapy and that is the reason he was not taken by the other places where he had applied. He denied the suggestion that he had wasted all his skills of physiotherapy in last 8-9 years waiting for this job.
17.He admitted that he had not placed on record the termination letter dated 27.06.2014. He admitted that he had also not placed on record demand letter dated LIR No. 6808/16 Adan Lal vs. Saket City Hospital Page No. 9 of 26 29.07.2013.
18.He denied the suggestion that since he had absented himself from 01.04.2013 onwards and never reported for duties with the management it was a sheer case of unauthorized absenteeism. He denied the suggestion that he absented himself without prior approval /intimation since no leave was granted to him. He denied the suggestion that the demand notices and the termination was not served upon the management or that it is a case of abandonment of employment or that he had instituted a false case for personal gain and with malafide intention to harass the management or that he was gainfully employed or that he had filed a false case in order to extract money from the management.
PART-G MANAGEMENT EVIDENCE
19. Management examined one witness in ME i.e. MW-1, Sh. Deepak Sharma, Assistant Manager (Human Resource) working with the management who tendered his evidence by way of affidavit Ex. MW1/A and relied on documents exhibited as Ex.MW1/1.
20.During his cross examination, he stated that he was not aware if the name of the management was G.M.Modi Hospital and Research Centre for Medical Sciences and thereafter name of the management was changed to Saket City Hospital (A unit of Gujarmal Hospital & Research Centre for Medical Science) prior to 2006.
21.He admitted that he had stated in para no.1 of his affidavit LIR No. 6808/16 Adan Lal vs. Saket City Hospital Page No. 10 of 26 Ex.MW1/A that he was deposing on the basis of records maintained in respect of the present case with the company. On being asked whether he had filed the relevant record qua the workman in the court in the present matter, he stated in the negative. He voluntarily stated that the matter was already settled before the then PO, Ms. Illa Rawat vide order dated 4.3.2015 and that settlement order had been filed as M1 to M3. He stated that he was not aware if any other record apart from the settlement was maintained by the company with respect to the workman or not.
22.He stated that as far as he was aware, the "duly maintained record" as stated in para 1 of his affidavit was only the settlement agreement with regard to the workman. He denied the suggestion that he was deposing only on the basis of the settlement before PO, Ms. Illa Rawat.
23.He said that he was not aware about the exact date and time of appointment of the workman w.e.f. 1.3.2006 on the post of Physiotherapist. He said he was not aware whether the appointment letter issued to workman Ex.WW1/1 was issued by G.M. Modi Hospital and Research Centre for Medical Sciences or not. He stated that he was not aware if salary slip Ex.WW1/2 was issued by the management to the workman or not. He said that he was also not aware if the workman was not paid salary for the month of March, 2013 by the management. He said that he was not aware if the workman was harassed by the management in April 2013. He said that he was not aware if the workman made any complaint dated 12.04.2013 LIR No. 6808/16 Adan Lal vs. Saket City Hospital Page No. 11 of 26 Ex.WW1/3 before Labour Department regarding non payment of salary for the month of March, 2013. He said that he was also not aware if the workman had sent an application Ex.WW1/5 to the management regarding harassment and non payment of salary for the month of March, 2013. On being asked whether the management paid the salary of the workman for the month of March, 2013 before the then PO, Ms. Illa Rawat vide mutual settlement mark M-1, he stated that as per settlement Mark M-1 the amount due to the workman was paid by the management.
24.He stated that the management had not received letters/applications for extension of leave Ex.WW1/8 & Ex.WW1/12. He denied the suggestion that the management had received letters/applications for extension of leave Ex.WW1/8 and Ex.WW1/12.
25. He said that he was not aware that the workman had filed statement of claim dated 06.08.2014 before Labour Department (Ex.WW1/19) and was also not aware if the Inspector, Labour Department had issued report dated 22.10.2013 (Ex.WW1/4).
26. He denied the suggestion that the workman visited the management for reporting for his duty from 16.06.2014 to 27.06.2014 but the management refused to take him on duty. He voluntarily stated that the workman was a habitual absentee. He denied the suggestion that after 27.06.2014 the workman again visited the management several times but the management refused to take him on duty.
LIR No. 6808/16Adan Lal vs. Saket City Hospital Page No. 12 of 26
27.He stated that the management had not received demand notice Ex.WW1/16. He denied the suggestion that the management had received demand notice Ex.WW1/16 and despite receiving of notice, the management had not taken back the workman on duty.
28.He stated that he did not have any documentary proof to show that the workman was gainfully employed since the day of his termination from work. He voluntarily stated that the workman was a highly skilled worker. He said that he was not aware if the management filed any documents to show that they tried to contact the workman to join duty. On being asked whether the management did not file any documents to show that they tried to contact the workman as they never tried to contact the workman, he said that he was not aware of the same. He said that he was not aware whether management had issued any notice, memo, charge sheet to the workman or conducted inquiry with regard to absenteeism of the workman. He denied the suggestion that the management had not taken workman on duty despite his reporting for duty several times. On being asked whether the workman was unemployed since the date of termination from services by the management, he stated that the services of the workman were never terminated by the management and that he was not aware whether the workman was unemployed or not after he claimed to have been allegedly terminated from work. He voluntarily stated that the workman must have been gainfully working as he was a highly skilled person.
LIR No. 6808/16Adan Lal vs. Saket City Hospital Page No. 13 of 26
29.He said that he did not know where his affidavit Ex.MW1/A was got attested. He denied the suggestion that workman was entitled for reinstatement with full back wages. He said that he knew the contents of his affidavit Ex.MW1/A. He denied the suggestion that he had filed a false affidavit or that he was deposing falsely.
30.Thereafter management's evidence was closed.
PART H-DECISIONS AND REASONS
31.Arguments were heard on behalf of both the parties.
32.After considering the claim, reply, documents and the evidence led on record, and also case laws filed by the parties, the issue wise decision of the court is as under :-
33.Issue No. 1. Whether the workman was running unauthorisedly absent from 01.04.2013? OPM
34.Unauthorised absence from work is when an employee fails to turn up for work without providing a valid reason, or without notifying their employer of their absence. In State of Punjab v. Dr. P. L Singla1, the Hon'ble Supreme Court has explained unauthorised absence as follows:
"Unauthorized absence (or overstaying leave), is an act of indiscipline. Whenever there is an unauthorised absence by an employee, two courses are open to the employer. The first is to condone the unauthorized absence by accepting the explanation and sanctioning leave for the period of the unauthorized absence in which event the misconduct stood condoned. The 1 CIVIL APPEAL NO. 4969 OF 2008(Arising out of SLP [C] No.13011 of 2006) decided on 31.07.2008 LIR No. 6808/16 Adan Lal vs. Saket City Hospital Page No. 14 of 26 second is to treat the unauthorized absence as a misconduct, hold an enquiry and impose a punishment for the misconduct. An employee who remains unauthorisedly absent for some period (or who overstays the period of leave), on reporting back to duty, may apply for condonation of the absence by offering an explanation for such unauthorized absence and seek grant of leave for that period. If the employer is satisfied that there was sufficient cause or justification for the unauthorized absence (or the overstay after expiry of leave), the employer may condone the act of indiscipline and sanction leave post facto. If leave is so sanctioned and the unauthorized absence is condoned, it will not be open to the employer to thereafter initiate disciplinary proceedings in regard to the said misconduct unless it had, while sanctioning leave, reserved the right to take disciplinary action in regard to the act of indiscipline. We may note here that a request for condoning the absence may be favourably considered where the unauthorized absence is of a few days or a few months and the reason for absence is stated to be the sudden, serious illness or unexpected bereavement in the family. But long unauthorized absences are not usually condoned."
The Hon'ble Supreme Court in the case of D.K.Yadav Vs. J.M.A.Industries Ltd. (1993 SCC (L&S) 723) has also held as under:
The order of termination of the service of an LIR No. 6808/16 Adan Lal vs. Saket City Hospital Page No. 15 of 26 employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman, fair play requires that a reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice.
35.The onus to prove this issue was upon the management. The management has taken the stand that they never terminated the services of the workman and that the workman stopped reporting for work from 1.4.2014. The workman has stated that in the month of March, 2013, the management had started harassing him and had started asking him to submit his resignation and hence did not pay his wages for the month of March, 2013 despite several demands. He stated that due to harassment by the management, he had suffered depression for which the doctor had advised him to take rest and hence he remained on leave. He further stated that after fitness, he reported for duty on 16.06.2014 to 27.06.2014 but the management did not allow him to join his duties and terminated his services on 27.06.2014 without giving any notice, notice pay, retrenchment compensation and without paying his earned wages for the month of March, 2013 or any of his other legal dues. The management has stated in its written statement that they never terminated the services of the workman and that he had remained unauthorisedly absent LIR No. 6808/16 Adan Lal vs. Saket City Hospital Page No. 16 of 26 from 01.04.2013, after he was transferred to the Pulmonology department.
36.During his cross-examination, workman stated that he admitted that as per the terms of his appointment letter, his job was transferable. He admitted that in the last week of month of March, 2013, he came to know that he had been transferred to some other department. He denied the suggestion that when he could not stop his transfer to the department of Pulmonology on his own, he remained absent from 01.04.2013 to 17.04.2013. He stated that he worked there in the Pulmonology Department, only for two days on 18.04.2013 and 19.04.2013. He voluntarily stated that he was being harassed by all the staff present in that Department. However, he did not place any documents to show that he had worked for two days with the Pulmonology Department. He stated that thereafter, he got sick and went into depression and took leave for 10 days. He stated that his depression continued till 15.06.2014 and then on 16.06.2014, after fitness, when he went to join his duties till 27.06.2014, the management did not allow him to even enter the premises.
37. He stated that he had placed documents to show that he was sick and was under treatment for depression vide documents Ex.WW1/20 to Ex.WW1/24. He admitted that he had not filed documents for his future treatment from 26.07.2013 to 15.06.2014. He denied the suggestion that since he was not under any depression during the above said period, therefore, he could not place such documents on record to support so. He denied the suggestion that LIR No. 6808/16 Adan Lal vs. Saket City Hospital Page No. 17 of 26 since he had absented himself from 01.04.2013 onwards and never reported for duties with the management it was a sheer case of unauthorized absenteeism. He denied the suggestion that he absented himself without prior approval /intimation since no leave was granted to him.
38.Management witness stated that the management had not received letters/applications for extension of leave Ex.WW1/8 & Ex.WW1/12. He denied the suggestion that the management had received letters/applications for extension of leave Ex.WW1/8 and Ex.WW1/12. He said that he was not aware whether management had issued any notice, memo, charge sheet to the workman or conducted inquiry with regard to absenteeism of the workman. He denied the suggestion that the management had not taken workman on duty despite his reporting for duty several times. On being asked whether the workman was unemployed since the date of termination from services by the management, he stated that the services of the workman were never terminated by the management and that he was not aware whether the workman was unemployed or not after he claimed to have been allegedly terminated from work.
39.The documents relied upon by the workman have been perused. In his letter to management dated 19.04.2013 Ex. WW1/5, workman has stated that he suffered from depression and needed 10 days leave. He again applied for 30 days leave on 27.04.2013 (Ex. WW1/8) and again 30 days leave on 27.05.2013 (Ex. WW1/12), which letters management have stated that they did not receive.
LIR No. 6808/16Adan Lal vs. Saket City Hospital Page No. 18 of 26 Workman has filed his medical documents on record which are from Ex. WW1/20 to Ex. WW1/24. In the last medical certificate filed dated 26.06.2013, the concerned doctor has recommended 30 days further rest, which means that the medical certificate was valid till 26.07.2013. The workman went to join the services of the management one year after that i.e. after fitness, he reported for duty on 16.06.2014 till 27.06.2014, but since his services were allegedly terminated, he sent demand notice on 30.06.2014 (Ex. WW1/16). No fitness has been filed on record and no proper explanation has been given by the workman as to where he was for this period of one year. Only thing that the workman has stated is that he was unwell, but no medical (for almost one year absence) or fitness has been filed on record to show the same. The nature of work of the workman, being a therapist was important for the management being a Hospital. When the workman failed to report for duty, and this scenario continued, it could not have been possible for the management to believe that the workman would join back. However, since management had not terminated services of the workman, it means that that the workman was still on rolls of the management. Management did not send any notice to the workman after his sanctioned leave, if any, was over, to join back duty. Rather they did not even sanction his leave despite his writing letters to them. The management remained silent and when workman came to join back duty a year later, they did not let him join. The principles of natural justice demand that workman should LIR No. 6808/16 Adan Lal vs. Saket City Hospital Page No. 19 of 26 have been given an opportunity to explain why he did not turn up for work. This has what has been held by the Hon'ble Supreme Court in D.K Yadav's case (Supra).
40.Hence, this issue is decided in favour of the workman and against the management.
41.Issue No. 2 - Whether the claimant has already settled his entire claim in the PWA as mentioned in the Preliminary objection of reply of the management ? OPM
42.It is evident from Mark M1 that the parties had settled the matter only qua entire claim in the PWA in the Labour Court of Ms. Illa Rawat vide settlement Mark M-1 dated 04.03.2015 (wrongly typed as 31.07.2019) as the statement specifically says so.
43.Issue No. 3 - Whether the service of the workman has been terminated illegally and unjustifiably by the management? OPW
44.The contention of the AR of the workman is that even if the workman remained unauthorisedly absent from work, no notice or memo was issued to the workman nor any enquiry was held, hence the service of the workman was illegally terminated.
45.As far as the submission that neither any notice was issued by the management nor any internal inquiry was conducted against the workman by the management for the alleged misconduct, this Court is of the opinion that such inquiry is only required when the management intends to inflict some punishment upon the workman. Well, this punishment was inflicted upon the workman when he was not allowed to join work in June 2014. The LIR No. 6808/16 Adan Lal vs. Saket City Hospital Page No. 20 of 26 management should have held an enquiry in such a case, for the reasons stated in deciding issue no. 1.
46.Accordingly, issue no. 3 is decided against the management and in favour of the workman.
47.Issue No. 4 - Relief.
48.Consequent to the decision on Issues No.1 & 3, it is held that the workman/claimant is entitled to certain reliefs under the Act.
49.As far as relief part is concerned, the workman has made a prayer in statement of claim that an award may be passed in his favour and against the management holding his termination from work as illegal and directing the management to reinstate him in service with continuity of service and with full back wages and all consequential benefits along with costs. However, reinstatement and backwages cannot be claimed as a matter of right.
50.On this point, this court finds support from the judgment of the Hon'ble Supreme Court of India in case titled as Rajasthan State Road Transport Corporation, Jaipur v Phool Chand (D) Through Lrs. 1, in which it was held that "In our considered opinion, the Courts below completely failed to see that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his 1 Civil Appeal No.1756 of 2010 (date of decision 20.09.2018) LIR No. 6808/16 Adan Lal vs. Saket City Hospital Page No. 21 of 26 reinstatement in service."
It further held that It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee."
It further held that "In some cases, the Court may decline to award the back wages in its entirety whereas in some cases, it may award partial depending upon the facts of each case by exercising its judicial discretion in the light of the facts and evidence. The questions, how the back wages is required to be decided, what are the factors to be taken into consideration awarding back wages, on whom the initial burden lies etc. were elaborately discussed in several cases by this Court wherein the law on these questions has been settled. Indeed, it is no longer res integra. These cases are, MP State Electricity Board v. Jarina Bee (Smt.)1, G.M. Haryana Roadways vs. Rudhan Singh2, U.P. State Brassware Corporation vs. Uday Narain Pandey3, J.K. Synthetics Ltd. vs. K.P. Agrawal & 1(2003) 6 SCC 141 2(2005) 5 SCC 591 3(2006) 1 SCC 479 LIR No. 6808/16 Adan Lal vs. Saket City Hospital Page No. 22 of 26 Anr.1, Metropolitan Transport Corporation vs. V. Venkatesan2, Jagbir Singh vs. Haryana State Agriculture Marketing Board & Anr.3 and Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya(D.Ed.) & Ors". 4 It further held that "The Court is, therefore, required to keep in consideration several factors, which are set out in the aforementioned cases, and then to record a finding as to whether it is a fit case for award of the back wages and, if so, to what extent."
51.In Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya(D.Ed.) & Ors.5, for awarding back wages certain propositions have been laid down by the Court.
52.The Hon'ble Delhi High Court in case titled as Indian Hydraulic Industries Pvt. Ltd v. Krishan Devi and Bhagwati Devi & Ors.6 has held 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. The Court has to adopt a pragmatic approach and take into account the allegations made by the work-women, the nature of contribution by the work-women to the industry, the time gap and averments made about the unemployment and 1(2007) 2 SCC 433 2(2009) 9 SCC 601 3(2009) 15 SCC 327 4(2013) 10 SCC 324.
5(2013) 10 SCC 324.
6 ILR (2007) I Delhi 219 LIR No. 6808/16 Adan Lal vs. Saket City Hospital Page No. 23 of 26 proof of unemployment as the relevant factors to be considered in such cases. The Labor Court can allow compensation to the workman instead of reinstatement and back wages."
53.In K.V Anil Mithra and Anr. v. Sree Sankracharya University of Sanskrit and Anr.1 it has been further held that "What appropriate relief the workman may be entitled for regarding non-compliance of Section 25F of the Act 1947 has been discussed in various cases and the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases".
54.Keeping in view the above legal propositions, it has to be kept in mind that workman has not placed on record any document to show as to what efforts he had made to get another job on his being unemployed. He has merely stated that he has been unemployed since 27.06.2014 and could not get job despite best efforts but no proof has been filed for the same.
55.Therefore, keeping in view all these facts-
a) that Workman was transferred to another Department in the Hospital after which he stopped attending to work stating that he was unwell;
b) he got unwell, he applied for leave and without getting any proper reply or authorised leave, he proceeded on leave, and that also for not a short period, but for almost a year;
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c) that the workman was absent without intimation for a whole year almost but still in the meantime, management did not pass any adverse order against him;
d) That job of a therapist in the hospital cannot be kept vacant and must be filled as soon as possible;
e) That workman admitted in his cross examination that in the present scenario, physiotherapists are in demand and can earn handsomely;
f) That he had worked with the management for about 7 years;
g) that workman has not produced any medical to show his state of fitness considering that he had taken leave on medical grounds;
and also keeping in view the aforesaid law point, this court deems it appropriate to grant lumpsum compensation i.e. the sum of Rs. 1,20,000/- (Rupees One lakh twenty thousand only) to the 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 @ 8% p.a. from the date it becomes due till the time it is realized.
56.The workman is not entitled to reinstatement of his services, as he failed to join the services at another Department in the hospital and did not honor the employment contract, remaining on leave without proper authorisation.
57.With these observations the statement of claim of the LIR No. 6808/16 Adan Lal vs. Saket City Hospital Page No. 25 of 26 workman filed under the provisions of the Act is disposed off.
58.Reference is answered and disposed off accordingly.
59.Let copy of the award be sent to the appropriate Govt for its publication as per rules.
Announced in the Open Court On 24.07.2023.
(BHAVNA KALIA) ADDL. DISTRICT & SESSIONS JUDGE, PRESIDING OFFICER LABOUR COURT-V, RACC/DELHI.
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