Delhi District Court
Industrial Dispute Between : vs M/S. Goel Engineering & Traders on 1 October, 2012
IN THE COURT OF SH. SATINDER KUMAR GAUTAM
ADDITIONAL DISTRICT & SESSIONS JUDGE,
PRESIDING OFFICER LABOUR COURT
KARKARDOOMA COURTS, DELHI.
ID No. 498/10
Date of institution : 24.02.2001
Date of award : 01.10.2012
INDUSTRIAL DISPUTE BETWEEN :
Sh. Shiv Sewak,
C/o. Audyogik Mazdoor Union,
T142, Gali no. 8, Gautampuri,
Delhi.
......... Workman
AND
M/s. Goel Engineering & Traders,
2409/5, G B Road,
Delhi.
.........Management
AWARD
An Industrial Dispute between the management of M/s.
Goel Engineering & Traders, Delhi and it's workman namely Sh. Shiv
Sewak was referred vide reference Order No. F.24(5096)/2000
Lab./538892 dated 15th February, 2000, by Secretary (Labour),
ID No. 498/10 Page No. 1 out of 9
Government of National Capital Territory of Delhi for adjudication in
exercise of powers conferred by Section 10 (1) (c) and 12 (5) of the
Industrial Dispute Act 1947 (in short Act) with the following terms
of reference:
"Whether the services of Sh. Shiv Sewak 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 respect1?"
2. In the year 2004 an exparte award has already been
passed by Sh. Sanjay Kumar, the then Ld. P.O.L.C. which was
thereafter set aside vide WP (C) No. 1590001/2006 &CM No.
12842/2006 by the Hon'ble High Court of Delhi.
3. Thereafter, the written statement filed by the
management alleging that workman himself voluntarily absented
from the service and did not turn up despite issued him various letters
to join back on duty.
4. The workman filed the rejoinder on 26.8.08. Thereafter,
vide order dated 20.11.08, from the pleadings of the parties, the
following issues were framed :
1.Whether the services of the workman were terminated illegally and/or unjustifiably by the management?
2. Whether workman abandoned the services ID No. 498/10 Page No. 2 out of 9 of the management at his own?
3. Relief.
5. After framing of issues, the matter was adjourned to lead the evidence by both the parties. First of all, the workman was given an opportunity to lead the evidence through an affidavit vide order dated 20.11.2008. The workman filed an application U/s. 36 of Industrial Dispute Act which was disposed of vide order dated 21.4.09. Thereafter, matter was adjourned for cross examination of the workman on several occasions but despite that the management did not cross examine the workman. The AR for the management has already withdrawn his authority letter and also debarred from appearance on behalf of the management vide order dated 21.4.09 in this case. The matter was fixed for cross examination of the workman vide order dated 9.4.12, 30.4.12 and 30.4.12 but none came forward for cross examination of the workman hence the workman evidence was closed and matter was fixed for management evidence but the management did not opted to lead evidence. Hence the management evidence was also closed on 13.7.12 and the matter was fixed for final arguments.
6. Having heard the arguments of the parties and also perused the material on record. My issuewise findings are as under : ID No. 498/10 Page No. 3 out of 9 7. ISSUE NO. 1 & 2 Whether the services of the workman were terminated illegally and/or unjustifiably by the management?
Whether workman abandoned the services of the management at his own?
The issue no. 1 "whether the services of the workman were terminated illegally and/or unjustifiably by the management and issue no. 2 whether workman abandoned the services of the management at his own are inter connected and hence the same be decided together.
8. First of all in this case, management has not filed its affidavit of evidence to disproof the contentions raised by the workman in his statement of claim. The management has to rebut all the contentions raised by the workman by the oral and documentary evidence but the management has not denied or contest the claim of the workman by way of oral or documentary evidence. In its written statement, the management has alleged that workman was given minimum wages and discharged to increase the wages. Consequently the workman started absenting from duty w.e.f. 19.6.00 and did not ID No. 498/10 Page No. 4 out of 9 turn up for duty, thereafter, despite of the letter dated 21.6.00, 5.7.00, 17.10.00, 27.1.01, 18.4.01, 27.9.01 etc. his name was continued on the rolls as absentee employee. But this fact has not been proved by the management through oral and documentary evidence.
9. On the other hand, the workman has appeared and filed several documents to show that he had worked with the management and his services were illegally and/or unjustifiably terminated by the management. The workman has filed courier receipts, request letter dated 18.9.06, telegram receipt no. S0053 dated 22.5.07.
10. It has been observed by Hon'ble Madras High Court in Management, Tamil Nadu State Transport Corporation, Coimbatore and Another versus Presiding Officer, Labour Court, Coimbatore and Others2010IIILLJ742 : "Termination of service of workman for unauthorized absence no proof of service of show cause notice to workman, produced proceedings against workmen, rightly held vitiated award for reinstatement of workman with 50% back wages, held did not call for interference."
11. Hon'ble Delhi High court in 2011 LLR 312, M/s. Hindustan Associates Engineer Pvt. Ltd., versus Sh. K. K. Aggarwal & Ors. wherein it is held that : "Compensation, in lieu of reinstatement, has been rightly granted by the Labour Court and plea that the workman has abandoned the job ID No. 498/10 Page No. 5 out of 9 of his own accord would not be tenable by its own version hence the writ petition against Award of the Labour Court is liable to be rejected and the workman will be entitled to 9% interest on the payment of Rs. 2,56,025 as granted compensation in lieu of reinstatement.
"Plea of the management that the workmen has abandoned the job of his own accord would not be tenable since no evidence was led and also in response, the Management did not send offer to the workmen to resume his duty. Even in the case of abandonment of employment by a workmen, holding of enquiry is imperative."
12. Keeping in view of the aforesaid discussion and the ratio of the judgment, it has come to the conclusion that the services of the claimants have been terminated illegally and/or unjustifiably. Even in case of abandonment of employment by workman holding of enquiry in imperative. Accordingly, issue no.1 & 2 is decided in favour of workman and against the management.
RELIEF
13. In view of the findings on issue no.1 & 2 it is matter of fact that the workman has been facing the trial since 2000, due to illegal actions taken by the management. The management from the very beginning have not come forward to contest the claim of the workman though admitted in the written statement that the workman is its employee. The workman in rejoinder stated that he had gone several times to the management for joining his duty back but not ID No. 498/10 Page No. 6 out of 9 allowed by the management. It is not proved that the workmen from the date of their termination till date he is unemployed and not doing any work. In case of reinstatement again there are apprehension of victimization to the workman. The workman also about to attend the age of superannuation. On 29.10.09 workman tendered his affidavit in evidence and has admitted his age as 46 years. In these circumstances it will be deemed fit and in the interest of justice, to award a lumpsum compensation instead of reinstatement.
14. This view is also strengthen In judgment of 2010I LLJ245 (Del) High Court of Delhi in case titled as Mohd. Shakir Versus Sunder Lal Jain Hospital it was held that:
"illegality of dismissal/termination from service of a workman did not in itself ipso facto result in his reinstatement. The long history of litigation and acrimony between the parties leading to trust deficit in this case was considered by the Labour Court and it had rightly concluded that reinstatement might not be appropriate remedy will justified award of compensation in lieu of the reinstatement of the workman."
15 The workman has served the management for more than 20 years and from the date of alleged termination. In this case earlier also an exparte award was passed in the year 2004 which was set aside by the management by moving in the Hon'ble High court and the workman was awarded reinstatement with 50% of back wages and continuity of services and all other legal benefits. The claimant is ID No. 498/10 Page No. 7 out of 9 at the age of superannuation. There is no cordial relationship between the parties due to tardy litigations. The management has also lost the confidence upon the workman therefore, in order to avoid unfair practice and meet the ends of justice it will be better to award the lump sum compensation to the workman. This view is strengthened by the judgement of Indian Acrylies Ltd. And Anr. Versus Presiding officer, Labour Court, Patiala and Ors. 2011 LLR 794 wherein it was observed that : "Compensation of Rs.5, 25, 000/ to each workmen, in lieu of reinstatement when the termination of the workmen has been held to be illegal, would be appropriate whereas the workmen has worked only for less than three years and over 15 years have been passed from termination." it was observed in para no.11 "
Their lordships of the Hon'ble Supreme Court in Santosh Kumar Seal's case (supra), have granted an amount of Rs.40,000/ only in lieu of reinstatement in service by taking note of a fact that the workmen's service was terminated more than 25 years earlier to the order of reinstatement. Same is the position in other two cases cited by counsel for the appellant.
Para no.12. In the present case, counsel for the appellant/ management was very fair when he stated that the management is ready to pay an amount of Rs. 4, 50,000/ to each workmen, towards final settlement of all disputes."
21. Therefore, in view of the aforesaid discussion & authority cited, it will be better to award a lumsum compensation to the workman instead of reinstatement which is meaningless, since the ID No. 498/10 Page No. 8 out of 9 management and the workman both have lost their confidene in each other. Therefore, in these circumstances and considering the record and tenure of service, it deem fit to grant a lumpsum amount of Rs. 2 lakhs (Two Lakhs) as compensation toward reinstatement & back wages to the claimant Shiv Sewak. The workman is also awarded interest at the rate of 9% per annum from the date of passing the award till its realisation. Accordingly, the claim of claimant is answered accordingly.
16 Copy of award be sent to the Secretary Labour, Govt. of NCT, Delhi for publication. The award be also sent to server (www.delhicourts.nic.in). File be consigned to Record Room. Announced in the open court on 1st October, 2012.
(SATINDER KUMAR GAUTAM) PRESIDING OFFICER LABOUR COURT KARKARDOOMA COURTS : DELHI.
ID No. 498/10 Page No. 9 out of 9