Delhi District Court
Id No. 163/10 Mahadev vs . M/S. Superior Crafts Page 1/29 on 24 March, 2011
IN THE COURT OF DR. T.R. NAVAL ADDL. DISTRICT &
SESSIONS JUDGE PRESIDING OFFICER LABOUR
COURT KARKARDOOMA COURTS DELHI
ID No. 163/10 (New) 81/97 (Old)
Date of Institution : 09.05.2005
Date of Arguments : 03.02.2011
Date of Order : 24.03.2011
IN THE MATTER BETWEEN
M/S. Superior Crafts,
D-13, Udhyog Nagar,
New Rohtak Road,
New Delhi-41.
THE MANAGEMENT
AND
Sh. Mahadev
S/o Sh. Raj Lal Yadav
C/o Kapda Mazdoor Lal Jhanda Union,
Mangol Puri, Delhi - 83.
THE WORKMAN
ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 1/29
AWARD
The Secretary (Labour), Government of NCT of
Delhi vide its order No. F.24(3006)/05-Lab./4778-82 dated
17.02.2005 referred an industrial dispute between the
above mentioned parties to the Labour Court with the
following terms of reference:
"Whether the services of Sh. Mahadev S/o Sh. Raj
Lal Yadav have been terminated by the
management illegally and/or unjustifiably, and if so,
to what sum of money as monetary relief alongwith
consequential benefits in terms of existing
laws/Govt. Notifications and to what other relief is
he entitled and what directions are necessary in this
respect?"
2. The facts in brief of the case of the workman
are that the workman joined the management as a helper
on 14.02.2003 and his last drawn salary was Rs. 2785/-
and he had been serving without any complaint from the
management. The management obtained his signatures
and thumb impressions on blank papers. The management
might misuse those documents. The main business of the
management is to manufacture readymade garments and
for that purpose the management had been operating
factories at several other places and more than one
ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 2/29
thousand employees were working with it in different
factories. The Industrial Employment (Standing Orders)
Act, 1946 is applicable on the management and service
conditions of employees of the management including
workman are covered by Modal Standing Orders. As the
management was not maintaining correct service record of
its employees, therefore, almost employees of the
management became member of Trade Union. The Trade
Union raised an industrial dispute and that was referred in
labour court. The management was pressurizing the
workman to withdraw said dispute. The management was
annoyed and terminated his services w.e.f. 31.07.2004.
The management neither issued any notice nor assigned
any reason nor displayed any seniority list before
termination of his services. The management also neither
offered nor paid notice pay or retrenchment compensation
at the time of termination of his services. The termination
of his services amounts to illegal retrenchment. The
management has also violated the principle of 'last come
first go' as no seniority list of the employees was displayed
and juniors to him are still working with the management.
He sent a demand notice and raised an industrial dispute
but those yielded no fruitful result. He had been without
ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 3/29
employment since the date of termination of his services.
The workman prayed for passing an award in his favour for
his reinstatement in services with full back wages
alongwith 18% interest and continuity of services.
3. The management did not dispute the
designation and last drawn salary of the workman. It was
pleaded that management came into existence only on
14.07.2003 and the workman joined the management on
09.03.2004. It was also admitted that an industrial dispute
regarding tenure of service was pending in the labour
court. The management contested his case on the grounds
interalia that the workman did not work for a period of
more than 240 days in one calendar year preceding the
date of termination of his services. He was a probationer
and his services were judiciously dispensed with on
account of unsatisfactory performance of his duties. The
action of the management was absolutely legal. The
management denied all other allegations and prayed for
dismissal of statement of claim.
4. The workman in his rejoinder controverted the
contentions made in the WS and reiterated the averments
ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 4/29
made in the statement of claim.
5. On the pleadings of the parties, an issue, "As
per terms of reference" was framed:
6. In order to prove his case, the workman
examined himself as WW1. He filed and proved his
affidavit as Ex. WW1/A and relied on documents Ex.WW1/1
to Ex.WW1/9. Sh. Jagdish Chand, an official from the office
of the Labour Commissioner was also examined as WW2.
He proved the summoned record as Ex.WW2/1. Sh.
Ramesh Kumar, Assistant ESIC Office, was examined as
WW3. He filed and proved the document Ex.WW3/1.
In support of its case, the management
examined Sh. Y.K.Sharma, Manager of the management
company, as MW1. He filed and proved his affidavit as
Ex.MW1/A and relied on documents Ex.WW1/M-1 and
Ex.MW1/1 to Ex.MW1/6.
7. After closing of evidence of the parties, I have
heard final arguments of Authorized
Representative/Counsel for both the parties and perused
the file.
ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 5/29
8. On perusal of the pleadings of the parties,
analysing evidence and material placed on record and
considering the arguments addressed by Authorized
Representative for the workman and Counsel for the
management, I have formed my opinions on the issue and
that are discussed here in below:
FINDINGS ON ISSUE
9. In order to decide issue, it has to be firstly
decided whether the management terminated the services
of the workman illegally and/or unjustifiably? It has been
argued on behalf of the management that services of
workman were legally dispensed with during the period of
probation as his work was not satisfactory. On the other
hand, it has been argued on behalf of the workman that
workman was a protracted workman at the time of
termination of services as an industrial dispute was
pending before the labour court. It was the duty of the
management to seek approval/permission from the labour
court where the dispute was pending. Admittedly, the
management did not seek any permission. Therefore, the
termination of services of workman comes in the category
of illegal retrenchment and accordingly, termination was
ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 6/29
illegal and unjustifiable. The Counsel for management
further argued that the workman never completed 240
days continuous service in one calendar year preceding
the date of termination of his services and he was
appointed on probation and the management was
empowered to dispense with the services of the workman
without following any procedure as laid down in the Act.
10. It has been argued on behalf of the
management that burden to prove that he had been in
continuous service of management for a period of 240
days in one calendar year preceding the date of
termination of his service, is on the workman. He relied on
a case R.M.Yellatti vs. Assistant Executive Engineer,
2006 (108) FLR 213 SCC, wherein it was held by Apex
Court that:
"Analysing the above decisions of this Court, it is clear that
the provisions of the Evidence Act in terms do not apply to
the proceedings under section 10 of the Industrial Disputes
Act. However, applying general principles and on reading
the aforestated judgments we find that this Court has
repeatedly taken the view that the burden of proof is on the
claimant to show that he had worked for 240 days in a
given year. This burden is discharged only upon the
workman stepping in the witness box. This burden is
discharged upon the workman adducing cogent evidence,
both oral and documentary. In cases of termination of
ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 7/29
services of daily wages earner, there will be no letter of
appointment or termination. There will also be no receipt or
proof of payment. Thus in most cases, the
workman(claimant) can only call upon the employer
to produce before the Court the nominal muster roll
for the given period, the letter of appointment or
termination, if any, the wages register, the
attendance register etc. Drawing of adverse
inference ultimately would depend thereafter on
facts of each case. The above decisions however make it
clear that mere affidavits or self serving statements made
by the claimant/workman will not suffice in the matter of
discharge of the burden placed by law on the workman to
prove that he had worked for 240 days in a given year. The
above judgments further lay down that mere non-
production of muster rolls per se without any plea of
suppression by the claimant workman will not be the
ground for the Tribunal to draw an adverse inference
against the management. Lastly, the above judgments lay
down the basic principle, namely, that the High Court under
Article 226 of the Constitution will not interfere with the
concurrent findings of fact recorded by the Labour Court
unless they are perverse. This exercise will depend upon
facts of each case."
[Emphasis added]
Thus, as per principles of law laid down in above
case, initial burden to prove that he had been in
continuous service of the management in one calendar
year before the date of termination of his services is on the
workman and thereafter the burden was on the
management to rebut that the workman did not complete
240 days of continuous service with the management in
ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 8/29
one calendar year before the date of termination of his
services. Let us examine the evidence and material placed
on record on the following points:
Length of Service
11. In his statement of claim, the workman alleged
that he was appointed as 'Helper' on 14.02.2003. The case
of the management is that the management was not in
existence on that day and establishment of the
management came into existence only on 14.07.2003. The
workman was appointed on 09.03.2004. WW1 in his
affidavit Ex.WW1/A deposed that he joined the
management on 14.02.2003. In his cross examination,
WW1 reiterated that he joined the management on
14.02.2003. He admitted that he submitted an application
alongwith his bio-data to the management for taking up
his employment. That bio-data was put to the
workman/WW1 who admitted his signatures on the bio-
data Ex.WW1/1 at point A. He also admitted that the
management issued him a letter of appointment. He
denied his signatures on the appointment letter mark M-1,
at point A. The workman also admitted that a declaration
form Ex. WW1/M-2 was signed by him at point A. On
ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 9/29
perusal of bio-data Ex.WW1/M-1, I find that it is dated
08.03.2004. Ex.WW1/M-2 is declaration form on which his
date of appointment has been mentioned as 09.03.2004.
The appointment letter mark M-1 which was subsequently
proved as Ex.MW1/1 shows the date of appointment as
09.03.2004.
12. I have carefully analysed the evidence on
record and came to the conclusion that evidence on record
has established that the workman joined his services with
the management on 09.03.2004 as pleaded by the
management and not on 14.02.2003. The reasons which
support my decision are, firstly, that WW1 himself
admitted that bio-data Ex.WW1/M-1 contains the date as
08.03.2004 and declaration form Ex. WW1/M-2 contains
the date of appointment of workman as 09.03.2004. As per
provisions of Sections 91 & 92 of the Indian Evidence Act,
documentary evidence prevails upon the oral evidence
and these documents have proved that date of
appointment of the workman was 09.03.2004.
13. Secondly, the management also filed and
proved muster roll. One of the copies of the muster roll is
ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 10/29
Ex.WW1/M-2. This also contains the date of appointment of
Sh. Mahadev as 09.03.2004. The document Ex.MW1/2 is
pay slip for the month of March, 2004. The management
also filed and proved muster roll for the month of February,
2004 as Ex.MW1/X-1 and for the month of March, 2004 as
Ex.MW1/X-2. The muster roll for the month of February,
2004 does not contain his name. The muster roll for the
month of March, 2004 contains his name at Sl. No. 325.
Thus, the documentary evidence has further supported the
case of the management on this point.
14. Thirdly, the management has also placed on
record, the service record of its employees for the month
of November, 2003, return of contribution as per
Employees' State Insurance Corporation(Regulation 26) for
the period of October, 2002 to March, 2003. This service
record does not contain the name of the workman as an
employee of the management. Thus, the management has
also discharged the burden to produce the relevant record.
In these circumstances, no adverse presumption can be
drawn against the management as per provisions of
Section 114 g of the Evidence Act.
ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 11/29
15. Lastly, MW1 was cross examined at length. In
spite of that, nothing could come out which could establish
that the date of appointment of workman was 14.02.2003.
In view of the above reasons, discussion and
evidence on record and particularly discussed here in
above, it is held that evidence on record has established
that workman joined the services of the management on
09.03.2004.
16. The workman in his statement of claim alleged
that the management terminated his services on
31.07.2004. His affidavit Ex.WW1/A also contains the same
date as date of termination of his services. MW1 in his
cross examination admitted that the management did not
take any duty from the workman after 31.07.2004. He
explained that his services were dispensed with on
31.07.2004. Thus, the evidence on record has established
that the workman had been working with the management
from 09.03.2004 to 31.07.2004. On calculation, length of
his service comes to 4 months and 22 days or 144 days. In
other words, it is held that the workman has failed to prove
that he had been working with the management for a
continuous period of more than 240 days in one calendar
ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 12/29
year preceding the date of termination of his services.
Appointment of workman on Probation and
dispensation of his services due to unsatisfactory
performance
17. In Samsher Singh v. State of Punjab, AIR
1974 SC 2192, the Supreme Court observed in Para 63
that no abstract proposition could be laid down that where
the services of a probationer were terminated without
saying anything more in the order of termination than that
the services were terminated it could never amount to a
punishment in the facts and circumstances of the case.
The Supreme Court further observed that before a
probationer was confirmed the authority concerned was
under an obligation to consider whether the work of the
probationer was satisfactory or whether he was suitable
for the post and that in the absence of any Rules
governing a probationer in this respect the authority may
come to the conclusion that in account of inadequacy for
the job or for any temperamental or other object not
involving moral turpitude the probationer was unsuitable
for the job and hence must be discharged.
18. In Dhanjibhai Ramjibhai v. State of
ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 13/29
Gujarat, AIR 1985 SC 603, the Supreme Court held that
there was no right in the probationer to be confirmed
merely because he had completed the period of probation
of two years and had passed the requisite tests and
completed the prescribed training. The function of
confirmation implies the exercise of judgment by the
confirming authority on the overall suitability of the
employee for permanent absorption in service.
19. In Ajit Singh v. State of Punjab, 1983(1) LLJ
410, the Supreme Court held that:
"In order that an incompetent or inefficient servant was not
foisted upon him because the charge of incompetence or
inefficiency was easy to make but difficult to prove, concept
of probation was devised, to guard against errors of human
judgment in selecting suitable personnel for service, the new
recruit was put on test for a period before he was absorbed
in service or got a right to the post. Period of probation gave
a sort of locus paententiae to the employer to observe work,
ability, efficiency, seniority and competence of the servant
and if he was found not suitable for the post, the master
reserved a right to dispense with his service without
anything more during or at the end of the prescribed period
ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 14/29
which was styled as period of probation. The Supreme Court
further observed that the power to put the employee on
probation for watching his performance and the period
during which the performance was to be observed was the
prerogative of the employer."
20. In Life Insurance Corporation of India and
another v. Raghavendra Seshagiri Rao Kulkarni,
1977(8) Supreme Court Cases, 461, the Apex Court
observed as under :
"The period of probation is a period of test during which
the work and conduct of an employee is under scrutiny. If on
an assessment of his work and conduct during this period it
is found that he was not suitable for the post it would be
open to the employer to terminate his services . His
services cannot be equated with that of a permanent
employee who, an account of his status, is entitled to be
retained in service and his services cannot be terminated
abruptly without any notice or plausible cause........."
21. In cases Samsher Singh v. State of Punjab,
(supra), Dhanjibhai Ramjibhai v. State of Gujarat,
(supra), Ajit Singh v. State of Punjab, (supra), Life
Insurance Corporation of India and another v.
Raghavendra Seshagiri Rao Kulkarni, (supra), it has
been laid down that the management may terminate or
ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 15/29
dispense with services of a workman on unsatisfactory
performance of his duties. Let us examine whether these
principles are applicable on the present case?
22. The case of the management is that the
workman was appointed on probation on 09.03.2004 and
his services were dispensed with on 31.07.2004, as his
work was not satisfactory. On the other hand, it has been
argued that the plea of the management was not correct
and the documents placed on record were false and
fabricated. Let us examine the evidence on this aspect.
23. MW1, in his affidavit Ex.MW1/A on this aspect,
deposed that the claimant Mahadev was appointed by the
management as a 'Tailor' w.e.f. 09.03.2004 vide
appointment letter Ex.MW1/1 and his services were
dispensed with in accordance with letter Ex.MW1/6. On
perusal of Ex.MW1/6, I find that it has been mentioned in
this letter dated 31.07.2004 addressed to Sh. Mahadev
that he was appointed as a 'Tailor' on probation for a
period of 6 months w.e.f. 09.03.2004. His work was found
unsatisfactory. Therefore, his services were being
dispensed with with immediate effect.
ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 16/29
24. On analyzing the evidence, I find material
contradiction in the evidence produced by the
management. As mentioned above, the appointment letter
Ex.MW1/1 provides that Sh. Mahadev was appointed on
09.03.2004 as 'Helper'. Ex.MW1/6/Dispense Letter contains
the designation of Sh. Mahadev as 'Tailor'. There is no
document showing as to when Sh. Mahadev was promoted
or appointed from Helper to Tailor. Obviously, the work of
helper and tailor is different. As a tailor the work of Sh.
Mahadev might be unsatisfactory but as a helper his work
might not be unsatisfactory. The other documents on
record, including Ex.MW1/2, also contain the designation of
Sh. Mahadev as Helpr only. MW1 in his affidavit has also
stated his designation as Tailor. Thus, the management has
produced contradictory evidence which leads to the
conclusion that plea of the management that work of Sh.
Mahadev was not satisfactory, is not convincing.
In view of the reasons, discussion and evidence
on record and particularly discussed here in above, it is
held that management though has established that
workman was appointed as 'Helper' on probation, yet, the
management has failed to prove that it dispensed with the
ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 17/29
services of the workman as 'Helper' as his work was found
unsatisfactory.
Principle of Last Come First Go
25. It has been argued on behalf of the workman
that the management violated the principle of Last Come
First Go as it neither prepared the seniority list, nor
displayed it on the date of termination of his services. The
Authorized Representative of workman relied on a case
Director, Fisheries Terminal Division vs. Bhikubhai
Meghajibhai Chavda, 2009 (123) FLR 875. The Supreme
Court observed that:
"16.It is not in dispute that the respondent's service was
terminated without employing with the provisions of section 25-F of Industrial Disputes Act. Section 25-G of the Act provides for the procedure for retrenchment. The section reads -
25.G. Procedure for retrenchment.- Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman."
The Labour Court based on the pleadings and evidence on record has come to the conclusion that the services of some of the employees junior to the respondent was continued after the respondent was discharged from its duties. The ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 18/29 dates of joining of some of the fellow employees of the respondent like Mohanbhai, Kalubhai and Nanjibhai were not produced by the appellants. The appellants have clearly failed to prove that the services of no junior employee was continued when the services of the respondent was terminated. Thus, the procedure laid down in section 25-G has also not been followed. The findings on facts by the labour cannot be termed as perverse and need no interference."
26. Turning to the case in hand, I find that the workman has established on record that there was violation of principles of 'Last come First go'. The reasons which support my decision are firstly that MW1 in his cross examination admitted that workman was an employee in the unskilled category. He did not know whether any seniority list was displayed on the notice board on or immediately before 31.07.2004? He further stated that he could not say without checking the records whether the persons junior to him in unskilled category were in the employment of the management on 31.07.2004. He continued to admit that the management appointed fresh workers after 31.07.2004 in unskilled category without offering any job to the claimant. Even otherwise, it is not the case of the management that the management followed the principle of 'Last Come First Go'. The services ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 19/29 of workman were allegedly dispensed with on account of unsatisfactory work and without complying the provisions of Section 25 F/N of the Act or principles of natural justice.
In view of the above reasons, discussion and evidence on record and particularly discussed here in above, it is held that there was violation of provisions of Section 25-G of the Act and the management did not follow the principle of Last come First Go.
Violation of Section 33(1) of the Act
27. It has been vehemently argued on behalf of the workman that the workman violated the provisions of Section 33 clause (1) of the Act. It would be appropriate to reproduce the provisions of Section 33(1) of the Act, which runs as under:
"33.Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings. - (1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before [an arbitrator or] a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall, -
(a)in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings; or
(b)for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 20/29 concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending."
(2) During the pendency of any such proceedings in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute [or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman]-(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or (b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer."
28. I have analyzed the evidence on record and came to the conclusion that there was violation of provisions of Section 33(1) of the Act. The reasons which support my decision are firstly, that the workman in his statement of claim alleged that an industrial dispute regarding date of his appointment was pending before the conciliation officer on the date when his services were terminated on 31.07.2004. In the corresponding paragraph, the management pleaded that the management was duly contesting that case in regard to ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 21/29 the date of appointment before the concerned authority. Thus, the management admitted the pendency of an industrial dispute on the date of termination of services of workman.
29. Secondly, the workman has filed and proved the proceedings of Industrial Dispute No. 9/04 as Ex.WW2/1. These proceedings have further supported that conciliation proceedings were pending on the date of termination of services of workman. Even otherwise, Section 58 of the Indian Evidence Act provides that facts admitted need not to be proved. As the management has admitted the fact of pendency of industrial dispute before the conciliation officer, that itself has proved that an industrial dispute was pending before the conciliation officer on the date of termination of his services.
30. My attention goes to a case Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Shri Ram Gopal Sharma and ors., 2002 LAB. I.C. 513. The question that arose for consideration before the Apex Court was, "If the approval is not granted under Section 33(2) (b) of the Industrial Disputes Act, 1947 whether the order of dismissal becomes ineffective from the date it was passed ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 22/29 or from the date of non-approval of the order of dismissal and whether failure to make application under Section 33(2) (b) would not render the order of dismissal inoperative?***
15. The view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merit and as such the order of dismissal or discharge does not become void or inoperative unless such an order is set aside under Section 33A, cannot be accepted. In our view, not making an application under Section 33(2) (b) seeking approval or withdrawing an application one made before any order is made thereon, is clear case of contravention of the proviso to Section 33(2)
(b). An employer who does not make an application under Section 33(2) (b) or withdraws the one made, cannot be rewarded by relieving him of the statutory obligation created on him to make such an application. If it is so done, he will be happier or more comfortable than an employer who obeys the command of law and makes an application inviting scrutiny of the authority in the matter of granting approval of the action taken by him. Adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. An employer by design can avoid to make an application after dismissing or discharging an employee or file it and withdrew before any order is passed on it, on its merits, to take a position that such order is not operative or void till it is set aside under Section 33A notwithstanding the contravention of Section 33(2) (b) proviso, driving the employee to have recourse to one or more proceeding by making a complaint under Section 33A or to raise another industrial dispute or to make a complaint under section 31(1). Such an approach destroys the protection specifically and expressly given to an employee under the said proviso as against possible victimization, unfair labour practice or harassment because of pendency ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 23/29 of industrial dispute so that an employee can be saved from hardship of unemployment."
[Emphasis added]
31. My attention also goes to a case Gujarat Agricultural University vs. All Gujarat Kamdar Karmachari Union, 2009 IX AC (S.C.) 12. It was held by Apex Court that:
"16.It is true that daily wagers are not the holders of a post but the expression 'conditions of service' occurring in Section 33(1) (a) is not restricted to the holders of post. The expression, 'conditions of service' is of wide range and relates to the workmen who may be temporary, adhoc, daily rated, permanent, semi-permanent or otherwise. What Section 33 provides is that, inter alia, during the pendency of any proceeding before the Labour Court or Industrial Tribunal in respect of an industrial dispute, the employer shall not in regard to the matter connected with the dispute, change conditions of service prejudicially to such workmen. We find no merit in the contention that since daily rated employers do not hold any post and, therefore, there are no conditions of service for such employees."
32. Turning to the case in hand, I find that principles of law laid down in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Shri Ram Gopal Sharma and ors., (supra) and Gujarat Agricultural University vs. All Gujarat Kamdar Karmachari Union, (supra) support the case of the workman and in the circumstances, in which the ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 24/29 services of the workman were dispensed with cannot be held as legal or justified.
In view of the above reasons, discussion and evidence on record and particularly discussed here in above, issue is decided in favour of workman and against the management and it is held that the management terminated the services of workman not only illegally but also unjustifiably.
Relief
33. WW1 in his cross examination stated that he was not earning anything as he could not get any job. He got his name registered in the Employment Exchange. Statement of MW1 is silent on gainful employment of workman. The workman in cross examination could not tell the details where he tried to get alternate job.
34. In a case Reetu Marbles and Prabhakant Shukla 2010 (124) FLR 72, it was held by Hon'ble Supreme Court that:
"In our opinion the High Court was unjustified in awarding full back wages. We are also of the opinion that the Labour Court having found the termination to be illegal was unjustified in not granting any back wages at all. Keeping in view the facts and circumstances of this case ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 25/29 we direct that the respondent shall be paid 50 per cent of the back wages from the date of termination of service till reinstatement."
35. In M/s P V K Distillery Ltd. Vs. Mahendra Ram, 1009(2) SCT 369, it was held that illegal termination does not create a right of reinstatement with full employment benefits and full back wages to an employee. It was observed that:
"14. In case of Haryana Urban Development Authority v. Om Pal, 2007(2) SCT 749, it is stated that, it is now also well settled that despite a wide discretionary power conferred upon the Industrial Courts under Section 11A of the 1947 Act, the relief of reinstatement with full back-wages should not be granted automatically only because it would be lawful to do so. Grant of relief would depend on the fact situation obtaining in each case. It will depend upon several factors; one of which would be as to whether the recruitment was effected in terms of the statutory provisions operating in the filed, if any.***
18. In case of Allahabad Jal Sansthan v. Daya Shankar Rai, 2005(2) SCT 699, this court has observed: A law in absolute terms cannot be laid down as to in which cases, and under what circumstances, full back wages can be granted or denied. The Labour Court and/or Industrial Tribunal before which industrial dispute has been raised, would be entitled to grant the relief having regard to the facts and circumstances of each case. For the said purpose, several factors are required to be taken into consideration.***
19. In case of Madurantakam Coop. Sugar Mills Ltd. vs. S. Vishwanathan, 2005(2) SCT 111, the quantum of back wages was confined to 50%, stating: It is an undisputed fact that the workman had since attained age ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 26/29 of superannuation and the question of reinstatement does not arise. Because of the award, the respondent workman will be entitled to his retiral benefits like gratuity, etc. and accepting the statement of the learned Senior Counsel for the appellant Mills that it is undergoing a financial crisis, on the facts of this case we think it appropriate that the full back wages granted by the Labour Court be reduced to 50% of the back wages.***
21. Giving a realistic approach to the matter and in spite of all these circumstances we are restricting ourselves to the question of 50% of the total back wages. Although services of the respondent have been terminated unjustifiably and illegally, it itself does not create a right of reinstatement with full employment benefits and full back wages.***"
36. In Chand Ram vs. Management of MCD and another, LPA 356/2009; Manu/DE/2526/09, the Delhi High Court through Hon'ble Chief Justice observed:
"There cannot be any dispute that the relief of reinstatement with full back wages is not to be given automatically and each case has to be considered on its own merits. The legal position that emerges is that ordinarily, where a workman, whose services were terminated illegally, will be entitled to reinstatement but the court may award compensation in lieu of reinstatement if the facts are unusual, exceptional or where grant of compensation would subserve the ends of justice. Each case will have to be considered on its own merit. However, in the absence of any cogent or valid reason it would not be proper for the Labour Court/Tribunal to deny the relief of reinstatement to a workman, whose services have been illegally terminated. In the instant case, the Labour Court refused the relief of reinstatement only on the ground that the period of 7 years had lapsed ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 27/29 by the time the case was disposed of. It is clearly seen from the record that the proceedings were delayed only on account of the management. The management, in spite of giving several opportunities, has not led any evidence in the matter. In these circumstances, the refusal to grant reinstatement was not proper. In the result, the appeal is allowed. The award of the Labour Court is modified to the extent that the appellant will be entitled to reinstatement in service with 50% back wages."
Order
37. Consequent upon the decision of sole issue in favour of the workman and against the management, terms of reference are answered in favour of the workman and against the management and it is held that services of Sh. Mahadev s/o Sh. Raj Lal were terminated by the management not only illegally but also unjustifiably and therefore, he is entitled for reinstatement in service with 50% of back wages.
38. The appropriate government is advised to direct the management to reinstate the workman Sh. Mahadev on the post of Helper and pay 50% of back wages @ Rs. 2785/- per month from the date of termination of his services i.e. 31.07.2004 till date of his reinstatement in service. It is further ordered that if back wages are not ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 28/29 paid within 30 days from the date of publication of this award, simple interest @ 8% from the date of award till realization will also be payable to the workman by the management.
Award is accordingly passed.
39. Copy of award be sent to the Secretary Labour, Govt. of NCT, Delhi for publication as per rules.
Copy of award be also sent to Ld. Senior Civil Judge, District West Delhi in compliance of provisions of Sec. 11(10) of the Act as amended by Industrial Disputes (Amendment) Act, 2010 (No. 24 of 2010), which runs as under:-
"(10) The Labour Court or Tribunal or National Tribunal, as the case may be, shall transmit any award, order or settlement to a Civil Court having jurisdiction and such Civil Court shall execute the award, order or settlement as if it were a decree passed by it."
File be consigned to Record Room.
Announced in the open court this the 24th day of March, 2011.
(DR. T. R. NAVAL) Additional District & Sessions Judge Presiding Officer: Labour Court Karkardooma Courts,Delhi.
ID No. 163/10 Mahadev vs. M/s. Superior Crafts Page 29/29