Delhi District Court
Vide Order No. ... vs Jasod Singh on 20 July, 2015
IN THE COURT OF SHRI UMED SINGH GREWAL
POLC-XVII ROOM NO. 22 :KKD COURTS: DELHI
ID No.69/10
Unique ID No.02402C0005412000
M/s. Competent Automobiles Co. Ltd.
895/C-5, Jain Mandir,
Dada Bari, Mehrauli,
New Delhi-30
............. Management
Its Workman
Sh. Satyapal
S/o Sh. Kitab Singh Narwal,
R/o Village & Post office Rithal Narwal,
Distt. Rohtak, Haryana.
..............Workman
Versus
DATE OF INSTITUTION : 26.11.1999.
DATE ON WHICH AWARD RESERVED : 15.07.2015.
DATE ON WHICH AWARD PASSED : 20.07.2015.
A W A R D :-
1. Vide Order No. F.24(3886)09/Lab.45205-09 Dated
28/.../99, issued by Government of NCT of Delhi, a reference was
sent to this Court with the following terms:-
"Whether the services of Sh. Satya Pal 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 respect?"
ID No.69/10/99 1/15
2. Claimant's case is that he joined the management on
07.09.1987 as maintenance supervisor. His duty was to attend the
generator, car-washing machines, air compressor and tube well. He
used to do electric works on those machines. Some times, he was
directed to do Plaster tiles etc. He never supervised the workers.
On 03.08.1998, he was transferred by chief managing director to
M/s. Competent Construction Company, Gurgaon saying that there
was scarcity of staff at Gurgaon. He worked there up to
06.11.1998. His nature of duty in Gurgaon was totally different.
On 07.11.1998, cashier Mr. Suresh of M/s. Competent
Construction Company, Gurgaon told him that Gurgaon office did
not have sufficient work and so he should go to the Delhi unit.
Accordingly, he reported for duty at Delhi workshop but vice
president Mr. Tondon did not allow him to join duty saying that
duty shall be given to him by chief MD, who was out of India and
would return only on 15.11.1998. He again reported for duty on
15.11.1998 but he was not allowed to join the duty by chief MD. A
letter was given to him on 17.11.1998 by the management that he
had been transferred to Himachal Pradesh. He visited the
management at Delhi and requested it to revoke the transfer letter
as it was illegal and unjustified but management refused to
withdraw the same and in this way his job came to an end.
3. Written statement is to the effect that claimant is not
ID No.69/10/99 2/15
covered under the definition of the workman as he was enjoying
the managerial and supervisory duties. He was transferred to
Mandi (Himachal Pradesh) workshop but he did not join there on
one or the other pretext. It is further mentioned that his services
have still not been terminated.
4. Following one issue was framed on 20.08.2002 :-
"As per terms of reference"
5. In order to prove the case, the claimant tendered his
affidavit in evidence as Ex.WW1/A stating all the facts which he
had mentioned in statement of claim. He deposed that his last
drawn salary was Rs. 3,400/- per month. On 03.08.1998, chief
MD had orally directed him to report at M/s. Competent
Construction Company, Gurgaon where he worked up to
06.11.1998. Cashier of Gurgaon company asked him to report at
Delhi workshop as sufficient work was not left there. He visited
Delhi workshop on 09.11.1998 but he was denied duty that day
and on 15.11.1998 also. He further deposed that vide letter dated
17.11.1998, he was transfered to Mandi (Himachal Pradesh)
illegally. He had filed a complaint in the labour department
against illegal action of the management on 07.12.1998 but he was
not reinstated. Complaint to labour department is Ex.WW1/1, reply
of the management before labour department is Ex.WW1/2,
transfer letter is Ex.WW1/3.
ID No.69/10/99 3/15
6. The management examined its company secretary Mr.
Ashish Srivastava as MW1. During cross-examination, he was
directed to produce the attendance register of the workers
employed at Mehrauli workshop from August, 1998 to November,
1998. Thereafter, he appeared on 05.08.2008 but did not bring the
requisite documents and his cross-examination was deferred.
Since then, he did not appear in the witness box. Sh. Pramod
Prasad Aggarwal was examined in chief as MW2 but he did not
appear for cross-examination. In this way, MW1 and MW2 did
not give complete evidence and hence their incomplete testimony
cannot be taken into account.
MW3 Sh. R.P. Sharma is the chief accountant of
management's Gazipur branch. He deposed that the claimant was
working as a supervisor. The claimant was transfered to Mandi
(H.P.) workshop of the management w.e.f. 17.11.1998 and on the
same day, he was relieved from Gurgaon side. Salary up to the
month of July was paid to him from Mehrauli workshop and salary
for the subsequent months was paid from the construction division.
He did not abide by the order of the management for joining at
Mandi workshop. It is further deposed that claimant's service has
not been terminated till now. He was directed vide letters dated
15.01.1999, 10.03.1999 and 25.05.1999 to join the duty at the
transfered place but he failed.
ID No.69/10/99 4/15
ISSUE NO. 1.
7. The first objection taken in the written statement was
that the claimant was not a workman as he used to supervise some
employees. Termination letter Ex.WW1/3 shows the designation
of the claimant as maintenance supervisor. To the same effect is
the affidavit in evidence of the claimant. Claimant/WW1 deposed
that his duty was to supervise the generators, car-washing
machines, air compressor, and tube wells. He used to do electrical
works on those machines. Some times he was asked to do sanitary
work and to plaster tiles. He used to purchase the material
required for the maintenance of all those machines. It is further
deposed that the workshop was headed by director, vice president,
general manager, deputy general manager, works manager, and
assistant manager etc. He never supervised any worker. He had
no control over other workers of the management whose strength
was 150: MW3 did not say a single word about the nature of duty
of the claimant. He deposed only one fact that the claimant was
working as a supervisor. He did not depose how many workers
were working the claimant. He did not mince a single word about
the work done by the claimant in the workshop. On the other
hand, nature of his duty has been very well explained by the
claimant. He successfully proved himself a mechanic of
generators, car-washing machines and air compressor etc. In M/s.
Blue Star Ltd. V. N.R. Sharma CWP No. 1259 of 1972 decided
on 22.02.1974, the workers were found mechanic and the Hon'ble
ID No.69/10/99 5/15
High Court of Delhi held that mechanics were not supervisors and
rather, they were workmen. So it is held that the claimant being
mechanic was not a supervisor.
8. The next ground taken in the written statement was
that the claimant was transferred from Delhi workshop to Mandi
(Himachal Pradesh) workshop on 17.11.1998 but he did not report
there despite issuance of several letters and that act amounts to
abandonment of job. The other ground is that the name of the
claimant had not been stuck off from the rolls of the company and
in this way his services were never terminated.
On the other hand, Ld. ARW argued that job of the
claimant was not transferable. Earlier, he was transferred from
Delhi to Gurgaon where his nature of job was totally different.
The claimant had worked at Gurgaon only for few months when
his services were again illegallly transferred to Mandi (H.P.). He
lastly submitted that denial of duty amounts to termination of duty.
9. None has placed on record the appointment letter of
the claimant. In management of M/s. Rajasthan Patrika Ltd. Vs.
Jasod Singh, 2012 LLR 978 decided by the Hon'ble High Court of
Delhi on 04.07.2012, the management had argued that right to
transfer an employee was implicit in every contract of service and
therefore, the workman could be transferred from one office of the
management to another. In that case, the appointment letter of the
ID No.69/10/99 6/15
worker was not placed on file by any party. In the case in hand
also, the appointment letter of the claimant has not been filed. In
the absence of appointment letter, there is no term and condition
on the file to show that the job of the claimant was transferable.
So, taking cue from the cited law it is held that the service of the
claimant was non transferable. To the same effect was the view of
the Supreme Court in Kundan Sugar Mills Vs. Ziyauddin & Ors.
AIR 1960 SC 650.
10. Cashier Mr. Suresh Kumar of M/s. Competent
Construction Company, Gurgaon asked claimant on 07.11.1998 to
report at Delhi workshop as the office at Gurgaon did not have
sufficient work. The claimant visited Delhi workshop on
09.11.1998 but he was not allowed to join the duty by vice
president Mr. Tondon on the ground that such permission would
be given only by chief MD, who was beyond India till 15.11.1998.
The claimant reported for duty on 15.11.1998 in the presence of
chief MD but the MD did not allow him to do so. Thereafter, a
transfer letter Ex.WW1/3 was issued to him. Chronology on these
events shows that the transfer letter had been issued in order to
pressurize the claimant to leave the management. So, in stead of
issuing termination letter , transfer letter was issued knowing well
that the claimant would not join the farthest area of Mandi and
would resign consequently. So termination letter is in the garb of
transfer letter. In, the management of Himilaya Embroidery
ID No.69/10/99 7/15
mills Vs. Tarseem Lal and Ors, 28 (1995) Delhi Law Times 249,
the workman was not allowed to join the duty. The Hon'ble High
Court of Delhi held that refusal of the work to a workman
amounted to dismissal.
Taking into account, all these facts it is held that
services of the claimant have been terminated illegally and
unjustifiably by the management.
Relief
11. Now the law is well settled that expulsion from job in
total violations of Section 25-F of the I.D. Act does not
automatically lead to reinstatement and 100% back wages. For
that purpose, several other factors are also to be taken into
account.
12. It is settled law that even in case of illegal termination
reinstatement is not automatic. In Nehru Yuva Kendra Sangathan
Vs. Union of India & Ors. 2000 IV AD (Delhi) 709, Hon'ble Delhi
High Court dealt with the question of reinstatement and back
wages and observed in paragraphs 27 and 28 as under :-
"27. We find from the decision of the
Supreme Court rendered in the 1970s and
1980s that reinstatement with back wages
was the norm in cases where the
termination of the services of the workman
was held inoperative. The decisions
rendered in the 1990s, including the
ID No.69/10/99 8/15
decision of the Constitution Bench in the
Punjab Land Development and Reclamation
Corporation Ltd., Chandigarh seem to
suggest that compensation in lieu of
reinstatement and back wages is now the
norm. In any case, since we are bound to
follow the decision of the Constitution
Bench, we, therefore, conclude that
reinstatement is not the inevitable
consequence of quashing an order of
termination; compensation can be awarded
in lieu of reinstatement and back wages.
28. Considering the facts of this case, we
are persuaded to award compensation in
lieu of reinstatement and back wages to the
workman"
13. In Municipal Council, Sujanpur Vs. Surinder
Kumar 2006 LLR 662, Hon'ble Supreme Court observed that the
relief of reinstatement is not automatic but is in the discretion of
the court. In paragraph 16, it was observed as under :-
"Apart from the aforementioned error of
law, in our considered opinion, the Labour
Court and consequently the High Court
completely misdirected themselves insofar
as they failed to take into consideration that
relief to be granted in terms of section 11A
of the said Act being discretionary in
nature, a Labour Court was required to
consider the facts of each case therefor.
Only because relief by way of reinstatement
with full back wages would be lawful, it
would not mean that the same would be
ID No.69/10/99 9/15
granted automatically".
14. In Vinod Kumar & others vs Salwan Public School
& others WP(c)5820/2011 dt.17.11.2014 Hon,ble Justice V.
Kameshwar Rao has held as under:-
11.Having considered the rival submissions
of the counsels for the parties, I do not find
any infirmity in the order of the Labour
Court. It is a settled position of law that
even if termination has been held to be
illegal, reinstatement with full back wages
is not to be granted automatically. The
Labour Court is within its right to mould
the relief by granting a lump-sum
compensation. In fact, I note that the
Labour Court has relied upon three
judgments propounding the law that the
Labour Court can mould a relief by
granting lump sum compensation; the
Labour Court is entitled to grant relief
having regard to facts and circumstances of
each case.
12. Further, the Supreme Court in the
following judgments held as under:
(a) In the matter reported as Jaipur
Development Authority v. Ramsahai, (2006)
11 SCC 684, the court has stated:
"However, even assuming that there had
been a violation of Sections 25-G and 25-H
of the Act, but, the same by itself, in our
opinion, would not mean that the Labour
Court should have passed an award of
reinstatement with entire back wages. This
Court time and again has held that the
jurisdiction under Section 11-A must be
ID No.69/10/99 10/15
exercised judiciously. The workman must be
employed by State within the meaning of
Article 12 of the Constitution of India,
having regard to the doctrine of public
employment. It is also required to recruit
employees in terms of the provisions of the
rules for recruitment framed by it. The
respondent had not regularly served the
appellant. The job was not of perennial nature. There was nothing to show that he, when his services were terminated any person who was junior to him in the same category, had been retained. His services were dispensed with as early as in 1987. It would not be proper to direct his reinstatement with back wages. We, therefore, are of the opinion that interest of justice would be subserved if instead and in place of reinstatement of his services, a sum of Rs 75,000 is awarded to the respondent by way of compensation as has been done by this Court in a number of its judgments."
(b) In the matter reported as Nagar Mahapalika v. State of U.P., (2006) 5 SCC 127, the court has stated:
"23. Non-compliance with the provisions of Section 6-N of the U.P. Industrial Disputes Act, although, may lead to the grant of a relief of reinstatement with full back wages and continuity of service in favour of the retrenched workmen, the same would not mean that such a relief is to be granted automatically or as a matter of course. 25 .....The appellant herein has clearly stated that the appointments of the respondents have been made in violation of ID No.69/10/99 11/15 the provisions of the Adhiniyam. An appointment made in violation of the provisions of the Adhiniyam is void. The same, however, although would not mean that the provisions of the Industrial Disputes Act are not required to be taken into consideration for the purpose of determination of the question as to whether the termination of workmen from services is legal or not but the same should have to be considered to be an important factor in the matter of grant of relief. The Municipal Corporation deals with public money. Appointments of the respondents were made for carrying out the work of assessment. Such assessments are done periodically. Their services, thus, should not have been directed to be continued despite the requirements therefor having come to an end. It, therefore, in our considered view, is not a case where the relief of reinstatement should have been granted."
(c) In the matter reported as Talwara Coop. Credit and Service Society Ltd. v. Sushil Kumar, (2008) 9 SCC 486, the court has stated:
"8. Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section 11-A of the Industrial Disputes Act, 1947 are required to strike a balance in a situation of this nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment viz. whether the appointment had been made in accordance ID No.69/10/99 12/15 with the statutory rules so far as a public sector undertaking is concerned, etc., should be taken into consideration."
(d) In the matter reported as Jagbir Singh v. Haryana State Agriculture Mktg. Board, (2009) 15 SCC 327, the court has stated :
"7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. ...
14. An order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee."
15. The claimant had worked with the management from ID No.69/10/99 13/15 1987 to 1998 i.e. for long eleven years. His services were terminated about 17 years ago. Mutual confidence between the parties had totally broken down and that is why the claimant was transferred to Gurgaon in August, 1998. The management again transferred him to Mandi (H.P.) in November, 1998. So reinstatement would not do justice with any of the party. Service of the claimant was terminated without notice or notice pay and retrenchment compensation though he had served the management for eleven years.
It has been deposed by the claimant that he was not gainful employee since the date of termination of service. He did not depose about the details of institutions/business house/workshops visited by him in the search of job. He was mechanic of generator, car-washing machines, air compressor and tube well. All these instruments are used in car servicing agencies. This court is not oblivious of the fact that the number of vehicles is increasing in Delhi and NCR in a threatening speed. With ever increasing vehicles, the number of car servicing agencies is also increasing creating jobs even for rukies. So the claimant is not justified to say that he is unemployed since termination. Taking into account all these facts, a lump-sum compensation of Rs. 2,75,000/- (Two lacs Seventy Five Thousands only) is granted to the claimant. The management is directed to pay the said amount to the workman within a month from the date of publication of this award failing which it shall be liable to pay interest @ 12 per cent ID No.69/10/99 14/15 per annum from today till realization. Award is passed accordingly.
16. The requisite number of copies be sent to the Govt. of NCT of Delhi for publication of the award. File be consigned to record room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 20.07.2015. POLC-XVII/KKD, DELHI.
ID No.69/10/99 15/15