Delhi District Court
Permanent Address Of The vs M/S Bharat Prakashan (Delhi) Ltd on 8 June, 2022
IN THE COURT OF SH. MUKESH KUMAR, PRESIDING
OFFICER LABOUR COURT, ROUSE AVENUE COURT
COMPLEX, NEW DELHI
INDUSTRIAL DISPUTE BETWEEN :
Industrial Dispute No. LIR7911/2016
INDUSTRIAL DISPUTE BETWEEN :
Sh. Anil Kumar Choudhary
S/o Sh. Ram Naresh Choudhary,
R/o 494, SiteI, Vikaspuri,
New Delhi110018
(The requisite details of the workman in compliance to judgment of
Hon'ble High Court of Delhi titled as "Director General of Works (CPWD)
Vs. Laljeet Yadav & Ors. W.P.(C) No. 2540/2021, DOD 16.07.21 are as
follows:
Permanent Address of the Workman
R/o 494, SiteI, Vikaspuri, New Delhi110018.
Present Address of the Workman:
R/o 494, SiteI, Vikaspuri, New Delhi110018.
Name and Mobile Number of A.R for Workman:
Sh. K. C. Dubey, A.R, Ch. No. G525,
Karkardooma Court, Delhi. 9810445502
Details of one of immediate family member of the Workman
Smt. Kiran Kumar (wife of workman), AADAHR No. 3515193332700
AADHAR Card Number of workman and Phone No.
AADHAR No. 458727215033, Ph. No. 9891719729
.....Workman
VERSUS
LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 1 of 41.
1 M/s Bharat Prakashan (Delhi) Ltd.
Sanskriti Bhawan, 2322, Laxmi
Narayan Marg, Paharganj,
New Delhi110055
Through its Managing Director
Sh. Parmanand Moharia
(Sh. Anurag Ranjan, A.R, 26A,
Poorvi Marg, N. D.57, 9818060838)
2. Sh. Jitender Mehta
General Manager,
M/s Bharat Prakashan (Delhi) Ltd.
Sanskriti Bhawan, 2322, Laxmi
Narayan Marg, Paharganj, New Delhi110055
(Deleted vide order dated 01.06.2016) .....Management
Date of Institution : 05.05.2016
Date of Arguments : 16.03.2022
Date of Award : 08.06.2022
AWARD
1.The Joint Labour Commissioner (Central District), Government of NCT of Delhi vide its order No. F.24(26)/Lab./CD/16/169, dated 25042016, referred an industrial dispute of present worker with the above mentioned management to the Labour Court with the following terms of reference : LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 2 of 41.
"Whether the services of Sh. Anil Kumar Choudhary S/o Sh. Ram Naresh Choudhary Aged about 50 years have been terminated illegally and/or unjustifiably by the Management; and if yes, to what relief is he entitled and what directions are necessary in this respect ?"
2. VERSION OF THE WORKMAN AS PER THE STATEMENT OF CLAIM :
The case of the workman as stated in the claim is that on 01 042016 he was appointed as Reference Assistant in Panchjanya weekly magazine of M/s Bharat Prakashan (Delhi) Ltd. He was on the probation of 6 months as per the letter of appointment, thereafter he was confirmed vide letter dt. 06111996. He had served with the terms and conditions. Thereafter, he was promoted at the post of Index Assistant , however, the letter dt. 01051997 itself depicts that he continued on the post of "Reference Assistant (Index Assistant)' only. He was promoted to the post of Sr. Index Assistant vide letter dated 18032011. It is averred by the workman that he was working at the post of Sr. Index Assistant but he was illegally transferred to Sr. Executive Advertisement vide letter dt. 08072015, strangely while transferring him all assurance were made for not changing anything but the terms and conditions were drastically changed vide letter dated 03082015. It is stated that apart from other disadvantages, the apparent disadvantage was in the Earned Leave LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 3 of 41.
which was reduced to 15 days only while it was earlier 30 days. The workman stated to have objected to his such nomenclature and transfer vide mail dated 30082015 but no response was made by the management against that.
It is further averred by the workman that despite being a very senior employee of management, the claimant was grilled for hours together by the M.D. Sh. Parmanand Mohariya and G.M. Sh. Jitender Mehta and was pressurized for resigning from the post. It is stated by workman that he was pressurized and mentally tortured in such a manner that he had to take medical treatment and he constrained to take medical leave between 16122015 to 22122015 and he sent email to the management in this regard on 16122015 with medical record but the claimant was terminated through mail dated 16122015 itself and later on termination letter along with a cheque was served upon the claimant. The claimant was not given any notice of three months for his termination, however, three months pay was sent to him which he returned along with the legal notice dated 29122015 to the management and the same was responded by the management.
It is stated by the workman that he sent a demand notice dt. 06022016 through speed post but the management neither replied nor complied the same. The claimant was constrained to approach the ALC vide complaint dt. 16022016, where the management appeared after 23 dates with adamant approach and neither brought the required documents nor heeded the request of reinstatement, LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 4 of 41.
therefore the said proceedings culminated into a failure report. It is averred by the claimant that he is fully covered and is entitled to the benefits of the recommendation of Majithia Wage Board and the directions of Hon'ble Supreme Court. It is stated by claimant that his salary and other allowances were not prepared and given by the management as per the above said reports. It is submitted that the management has been taking all illegal and unjustified action against its employee in the name of modernization and upgradation of the management. It is stated that the internal protest and resentment by the senior employees like the claimant were suppressed by asking their resignations.
It is submitted that the regular employees can not be substituted by the contractual employees while the viceversa has legal sanctity. It is stated that getting resignation or terminating illegally for substituting them by the employees on contractual basis is nothing but a patently illegal action of the management. It is stated that the management is guilty of violating Section 9 of the Industrial Dispute Act. It is further stated that prior to change in the service condition of the claimant, no notice of change was given to him and the changes were brought adversely affecting the service condition of the claimant.
It is alleged that the claimant has been illegally terminated from service without following section 25F of Industrial Dispute Act and the management violated the Section 25G, 25M & N of the I.D. Act. It is stated that fresh appointments on contract basis were made while the claimant a regular employee has illegally been LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 5 of 41.
terminated from his services. It is stated that the action of the management is against the dignity of labour, unfair labour practice and is evidentially harassing and victimizing towards the claimant.
Workman prayed for his reinstatement along with full back wages from the date of his illegal termination with continuity of service with all consequential benefits and cost of litigation and damages for harassment and victimization while holding the dismissal to be illegal, in the interest of justice.
3. The management filed the written statement and in its written statement it is stated by the management that the present claim is totally misconceived, ill conceived and not tenable and same has been filed only to harass the management. It is submitted that the present reference has been made with respect to the termination letter dated 16122015 served upon the claimant by the management and the said termination letter was subsequently withdrawn by the management vide their letter dt. 31052016 and the entire wages and other benefits applicable as per terms of employment of the claimant were duly served upon him. Hence, the present claim is not maintainable. It is further stated by the management that the employment of the claimant was retrenched w.e.f. 31052016 as his services were not required by the management and the claimant along with the letter of retrenchment was paid all benefits including notice pay for one month, retrenchment compensation calculated in accordance with law, gratuity and all other statutory dues and the same was duly served upon the claimant. It is stated that the claimant herein has acknowledged the receipt of retrenchment letter and the LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 6 of 41.
compensation and other dues as aforesaid has also not disputed by the claimant. It is submitted that the retirement of the claimant is neither the subject matter of present industrial dispute nor forms part of the terms of reference.
It is further stated that the management on the basis of detailed evaluation had come to the conclusion that it can carry on its business with reasonable efficiency and profitability with the number of employees and posts retained and the role of claimant and the work done by him were both surplus and beyond the requirement of the management. It is stated that, however, the management duly complied with the provisions of section 25 F of the Industrial Dispute Act, 1947 and has also taken into account the provisions of Section 25 F of the Industrial Dispute Act, 1947 while carrying out the retrenchment. It is stated that the post of the claimant has been abolished and no new recruitment has been carried out by the management against the said post which was held by the claimant. Management further stated that the claimant is neither a workman as defined in the Industrial Disputes Act, 1947 nor a journalist within the meaning of the Working Journalists and other Newspaper Employees (Condition of Service) and Miscellaneous Provisions Act, the present claim, thus does not fall in the category of Industrial Dispute Act nor the Industrial Dispute Act is applicable in the present case.
It is denied by the management that the promotion of claimant to the post of Index Assistant was not a promotion as has been alleged by the claimant. It is stated that the claimant was promoted to LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 7 of 41.
the post of Senior Index Assistant on 18032011 and then shifted to advertisement from Panchajanya and was made Senior Executive Advertising. It is denied that transfer/shifting of the claimant was illegal as alleged by the claimant. It is also denied that there was any change in condition of employment of the claimant including in earned leave resulting from the said shifting/transfer of the claimant as alleged by him. The management further denied that claimant was forced to resign or grilled as alleged.
It is stated that the claimant is concocting a fictional narrative for reasons best known to him. It is stated that the employment of the claimant was terminated w.e.f. 16122015 therefore there was no occasions for seeking a medical leave and grant thereof w.e.f. 1612 2015, however, the said letter was withdrawn by the management and later on his services were retrenched as stated above. Management denied that they have received any demand notice from the claimant. It is stated that it would be pertinent to add that the management is in complete compliance of recommendations of the Majithia Wages Board and as applicable to it. It is further denied by the management that they have put any pressure to his employee for resignation as alleged by the claimant. It is further denied that the management has involved in any kind of Unfair Labour Practice as alleged by claimant. It is stated that the implementation of the recommendations of the Wage Board is not under challenge in the present dispute and the claimant has not made any complaint to the management or any authority with respect to non implementation of the recommendations of the Wages Board. It is denied by the LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 8 of 41.
management that increments and other benefits as applicable are not being paid to the claimant or the employee of the management. It is reiterated that the management is in complete compliance of the recommendations of the Wage Board and its applicable provisions. Management further denied that they have ever threatened the claimant as alleged by him. It is stated by the management that their action is as per law and they have not violated any provisions of law or I. D. Act. It is prayed by management that the claim of the claimant may be dismissed with cost and award may be passed in favour of the management.
4. REJOINDER OF THE CLAIMANT :
In his rejoinder the workman has reiterated his stands made in the statement of claim and denied the averments of the management. The workman denied all the allegations of the management in his rejoinder.
5. From the pleadings of the parties, the following issues were framed on 26092016: (1) Whether termination of service of claimant by the management on 16.12.2015 is illegal and/or unjustifiable ? OPW (2) Relief
6. EVIDENCE OF THE WORKMAN:
Claimant has examined herself as WW1 and filed his evidence by way of affidavit which is exhibited as Ex.WW1/A. In his evidenciary affidavit the workman has reiterated the contents of the statement of claim. WW1 relied upon the documents which have LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 9 of 41.
been exhibited as Ex.WW1/1 to Ex. WW1/24 and document Mark A and Mark B. The workman has been cross examined by the Authorized Representative of management and in his cross examination WW1 has deposed as under :
"It is correct that I was issued appointment letter at the time of engagement.
Ques. I put it you that there is no clause in the appointment letter not to retrench/terminate your services? Ans. That can be seen from the contents of appointment letter with terms and conditions.
It is correct that I was terminated vide letter dated 16.12.20156. Vol. I was intimated on email. I have filed the print of email by which I was terminated. It is wrong to suggest that I had not filed such mail dated 16.12.2015. It is wrong to suggest that I was not terminated through mail. It is correct that termination order dated 16.12.2015 issued to me was withdrawn subsequently by the management. It is correct that I was treated on rolls of management from 16.12.2015 upto 31.05.2016 and I was given wages for that period and I was paid retrenchment compensation. Vol. I returned the cheque wages as well as retrenchment compensation in accordance with provision of 25 F of ID Act. Ques. Can you say according to you how much retrenchment compensation you were to be paid?
Ans. I do not know how much I have to get as per the law.
It is wrong to suggest that retrenchment and the compensation are as per law.
LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 10 of 41.
7. The further crossexamination of the WW1 was deferred and continued on 11.07.2017, the witness deposed in the following manner as under :
"At the time of my termination, I was given three months salary and I had returned the same. I have received the gratuity under protest. The three months salary was given to me through cheque and I returned the said cheque along with the notice. The said notice has been received by the management and the management has also replied the same. I have placed the said letter on judicial file and it is matter of record. It is correct that the termination was withdrawn by thy management. (Vol. It was withdrawn after I filed the case). I also returned back the cheque whereby I was paid salary from 16.12.2015 to 31.05.2016 along with retrenchment compensation. This cheque also included the amount of gratuity, leave encashment and other benefits. It is correct that I have not filed any case or appeal against the said retrenchment as my case was already pending in the court. It is correct that I have not raised any dispute in any Court against Majithia Wage Board. (Vol. I had made complaint in this regard to the management and the management assured that all the benefits would be given). It is wrong to suggest that while I was in the employment I was paid as per Majithia Wage Board, however, I was being paid Rs. 20,000/ less. It is wrong to suggest that I did not raise any dispute in any Court in respect of Majithia Wage Board, as I was being paid as per Majithia Wage Board. The reasons for our retrenchment was Majithia Wage Board. (Vol. The retrenchment was done in order to LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 11 of 41.
justify the termination). It is wrong to suggest that the work which I was doing was in fact reduced i.e why I was retrenched. (Vol. I was working for 22 years). It is wrong to suggest that I was given all the benefits which were required to be legally given on account of retrenchment. I am unemployed since the date of my termination and awaiting for the verdict of the Court. I have not tried to search for employment anywhere. It is wrong to suggest that I have filed false affidavit or that I am deposing falsely".
No other witness was examined by the workman and his Authorized Representative Sh. K. C. Dubey closed his evidence on 31072017.
8. EVIDENCE OF THE MANAGMEENT :
The Management has examined Ms. Sharmita Sen, HR Manager of the management as MW1 who tendered her evidence by way of affidavit which is Ex. MW1/A which bears her signature at point 'A' and 'B'. MW1 has deposed that the document given exhibit as MW1/1 is not on court record, therefore, same is de exhibited. The document Ex. MW1/2 in her present affidavit is already exhibited by workman as Ex. WW1/23. The document Ex. MW1/4 is already exhibited by workman in his evidence as Ex. WW1/24. Ex. MW1/3 is the photocopy of cheque dt. 31052016.
9. In his cross examination MW 1 has deposed in the following manner as under :
"I have been appointed HR, Manager w.e.f. 02052016. I LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 12 of 41.
have been appointed on contract basis which has now been renewed up to 31032018. I do not have written authority to sign and depose before this Hon'ble court in this case. However, I have orally been communicated to do so. Mr. Vinod Kumar Chandna was working as Manager in this management, however, he left prior to my joining. The letter dated 13062012, which is already mark A was issued by the said Manager. It is wrong to suggest that the same was not implemented. In fact in pursuance to the same board of directors have also considered the issue and a decision was taken wherein personal pay shall be treated as basis pay for the calculation of all the benefits to be paid to the employees, example gratuity, leave salary etc. It is correct that if personal pay, which was earlier segregated, is added to the basis pay, the total amount of salary might be increases. I do not remember right now the salary of workman. I can bring the salary slip of workman if directed. It is correct that the management pays the salary/wages to the employee as per 8 th category. As per director's report our total revenue was Rs.6.18 crores for the financial year 20142015. I can say about the same after verifying the same from our records which I shall do on the next date. No notice was served upon the workman prior to the termination of service dated 16122015. Vol. Services of the workman was terminated as per contract of employment. No show cause notice or any charge sheet were issued nor any enquiry has been conducted before termination. 9 (i) The General Manager is the appointing authority of the posts upon which the claimant was working. It is correct that a letter revoking termination letter dt. 16122015 was issued. It has been LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 13 of 41.
filed on record. No letter for reinstatement was issued to the workman. Vol. Because the termination order was revoked and the workman was taken back on roll. It is wrong to suggest that no revocation and reinstatement letter were issued to the workman nor have been placed on record. It is correct that the PF amount of the workman was deposited in their respective account after 16122015. I can bring the record in this regard on the next date. Right now I can not say as on which post the claimant was appointed. I may check it from the record and then tell it. I shall also bring the document regarding terms and conditions of employment of the workman on the next date."
10. The further crossexamination of the MW1 was deferred and continued on 05072018, the witness deposed in the following manner as under :
"Though I have not brought the salary slip of the claimant, I shall bring it later on. I have discussed with my General Manager about the total revenue being Rs.6.18 crores for the financial year 201415. But I have not verified it. I will do the same and come with the finding. I have also not brought the record pertaining to PF of the claimant after 16122015. I may bring the same later on . I have checked the record and found that the claimant was appointed on the post of Index Assistant. It is a journalist post. It is correct that there are two types of employees in organization journalist and non journalist. It is incorrect to suggest that transfers can not be made from non journalist to journalist category or vice versa. The then General Manager is the appointing authority for the post of the LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 14 of 41.
claimant. It is the Managing Director who has got the authority to terminate or retrench the employees of the organization. It is correct that workman was not called to perform the duty after 16122015. Vol. As the workman was retrenched and the termination was withdrawn vide letter dt. 31052016 and for the said period from 16th December, 2015 to 31052016 they were considered on the rolls of the company. As an Index Assistant he work was to keep records of all the books in the library. At the time of termination dt. 1612 2015 claimant was a part of advertisement team in the post of Sr. Executive Advertisement. His responsibility in the post was to generate advertisement lead. It was not a promotion but he was shifted from Index Assistant to Sr. Executive Advertisement on 87 2015. He could not generate any advertisement lead during that period. It is incorrect to suggest that the work and performance of the claimant remained the same though the designation of the post of the claimant was changed. It is incorrect to say that his work was collecting news as per instructions of the Editor maintaining records of Panchjanya and other books in the library till the date of termination. I do not know as to whether any notice for general retrenchment was issued or not by the management. The management do not have any retrenchment policy as such. There was no change of the business and or work of the organization during the time of termination.
Q; Whether the management was running smoothly and in normal way or not ?
Ans. The business was working smoothly, however, there was no LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 15 of 41.
work at the position the claimant was working.
There was no letter issued for abolishing the post of the claimant. It is wrong to suggest that the work of establishment was going on smoothly, library and indexing work were very much there, the job of the claimant was in place but he was terminated by way of victimization. I do not remember as to how many employees have been employed either on regular or contract basis after 16122015. It is incorrect to suggest that any person has been appointed at the place of the claimant on the contract basis. Without checking the records I can not say as to what amount is paid as salary to a contract worker similar to the claimant. (objected to by ARM).
11. The crossexamination of MW1 was again deferred and continued on 04082018, the witness deposed in the following manner as under :
"I have brought profit and loss statement for the year ended 31.03.2015 and for the year ended 31.03.2016 and the photocopy of same are exhibited as Ex.MW1/W1 (OSR) and Ex.MW1/W2 (OSR) respectively. I have also brought the salary slip for the month of August to October 2015 of the workman Anil Kumar Chaudhary.
Photocopy of same is Ex.MW1/W3 (OSR) running into three pages. No PF for the period 16.12.2015 to 31.05.2016 has been deposited for the claimant, however, the same shall be paid once the settlement of the claim of the workman is finalised. It is incorrect to say that the personal pay is the part of basic pay as shown in salary slip Ex.MW 1/W3. It is wrong to suggest that the basic pay has been factored into basic pay and the personal pay illegally. It is correct that on the LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 16 of 41.
component of personal pay, no allowances like HRA, conveyance, DA etc. are calculated and paid. It is correct that for the purpose of all allowances/benefits, the basic pay and the personal pay are taken as basic pay but for HRA and conveyance. It is correct that as per Majithia Wage Board Award (hereinafter read as MWBA) which was effective from 11.11.2011, the arrears of the same was to be paid in four equal installments. It is incorrect to suggest that the workman was not paid arrears as per MWBA i.e. in the four equal installments.
At present, I cannot show the record in this regard but I can produce the same if so required. It is incorrect to say that the claimant was not paid the arrears in four equal installments and rather was pressurized to sign a declaration for the arrears to be paid during the span of five years. I cannot say as to whether the management was implementing the MWBA only on the basis of 30% of the basic pay vol. I have to check the record. It is correct that the salary of the employees upto March 2017 are fixed on the basis of VIII category of classification of Newspaper Establishment. It is also correct that the VIII category of classification is meant for the establishment having turnover less than one crore. It is incorrect to suggest that the management has placed itself at level No. 8th, while in fact it was at level No. 6th. I cannot say as to whether the claimant was entitled for medical insurance under the MWBA w.e.f November 2011 but the same was not paid vol. I have to check the record. It is correct that the management grants annual increment to all its employees regularly.
LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 17 of 41.
Q: Can you tell the reasons for the management not granting annual increment to the claimant for the year 2011 to 2015? Ans. Because the claimant was falling under Majithia pay scale and as per the pay scale, the claimant had already reached the upper limit of the said scale.
12. I have to check the Majithia Wage Board Award and applicable pay scales from the record. It is wrong to suggest that the claimant was not being paid his increment annually as part of victimization and harassment. It is correct that the management is engaging the personnels on contract basis. Around 1516 personnels have been engaged on contract basis since December 2015. It is wrong to suggest that till date around 45 personnels have been taken on contract basis. It is correct that Mr. Hanumant Chand has been appointed on contract basis. I cannot tell his salary at present vol. I can check the record. I need to check the record to say as to whether his job is collecting news and views from different newspapers and media houses. I cannot say that the claimant's name used to appear in the Editorial Index and was deliberately omitted from the same later on just to victimize and harass. It is wrong to suggest that the claimant was wrongfully transferred from Editorial staff to Advertisement Department against its own transfer policy. It is wrong to suggest that the claimant's job was to collect news and views from newspaper, magazine and media but he was transferred to Advertisement Department as part of victimization and harassment of the claimant. I cannot say that any response was given on behalf of the management to the email communication LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 18 of 41.
dated 20.12.2015, which is already Ex.WW1/10 vol. I have to check the record. Photocopy of termination letter is Ex.MW1/W4 (OSR). Further, cross examination is deferred at request and for want of producing documents showing payment of benefits of Majithia Report in four equal installments to the workman; the basis of pay for the compliance of Majithia report; with regard to medical insurance as per Majithia report; salary of Hanumant Chand and reply to email communication Ex.WW1/10. The terms and conditions of service effective from January 1, 1985, in original now Ex.MW1/W5 (running into 4 pages) and certified copy of the order sheet of conciliation proceedings of 26.02.106 to 31.03.2016 which is now Ex.MW1/W6 shown to the witness.
It is correct that no show cause notice or any inquiry was conducted as per the said terms and conditions prior to the termination of the services of the claimant. I have to check as to whether management had appeared during the course of conciliation proceedings. I need to check the relevant documents for the proof that the management appeared before the Conciliation Officer. I will bring aforesaid proofs on the next date of hearing.
13. The further crossexamination of the MW1 was again deferred and continued on 22.12.2018. The witness deposed in the following manner as under :
Ques. Have you checked the amount of salary being paid by the contract worker similar to claimant. Have you checked whether the PF for the period 16.12.2015 to 31.05.2016 have been deposited for the claimant or not? Have you checked as to whether salaries have LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 19 of 41.
been paid as per MWBA and the four installment for the arrears w.e.f 11.11.2011 have been paid or not? Have you checked whether medical insurance as per MWBA was being given to the claimant, Have you checked whether Mr. Hanumant Chand have been appointed on contract or not? Have you checked the terms and condition placed on record as Ex. MW1/W5 given at the time of appointment is correct or not. Have you checked whether certified copies of the order sheets of conciliation proceedings of 26.02.2016 to 31.03.2016 placed on record as MW1/W6 is correct or not. Ans. There are no contract worker similar to the claimant. As already informed PF is already withheld with the company and shall be deposited as per the rule. Yes, the salary have been paid as per MWBA however as there was a financial crunch with the company so it was paid in five installments which was in agreement with the claimant. Mail pertaining to the payment of installments under MWBA is now marked as A (five pages). The concent of the claimant is Mark B. Yes medical insurance is being given to all the employees wherein the company is being bearing the entire premium. This is effective 27.02.2016. Copy of the insurance policy is exhibited as MW1/5 (running 5 pages) (OSR). Yes, Mr. Hanumant Chand was appointed now he has resigned from his services and 31.12.2017 was his last working day. There was no reply made to communication dated 30.08.2015 as by that time the claimant had already accepted vide letter dated 03.08.2015 the offer to be shifted to the new role in a new department. Yes, the terms and conditions have been checked and the same is correct. Yes, I have LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 20 of 41.
checked and it is correct.
It is mentioned in the service agreement and terms and conditions that the employees of journalist and non journalist are inter changeable and may be transferred viceversa. It is wrong to suggest that employees of journalist and nonjournalist are inter changeable and may be transferred viceversa. Ex.MW1/2 bears my signature. It is correct that I am HR Manager and do not enjoy of power of General Manager. (Vol.) Although the letter was signed by me, the direction came from the board. Can you bring the direction given by the board to you to issue such letter. I can check and look for it. It is wrong to suggest that I am deposing falsely. It is wrong to suggest that I was not having any directions from board to issue such letters. It is wrong to suggest that I depose falsely at the instance of the management and the management victimized the claimant with intention to escape the payment of salary as per MWBA and to replace him by way of contract employees.
14. No other witness was examined by the management despite opportunities. The evidence of the management was closed vide order dated 03122020.
15. I have heard the final argument of Authorized Representative of the Workman and the management. Perused the records as well as the written submissions filed on behalf of the parties. My findings on the issues are as under:
16. ISSUE NO:1 "Whether termination of service of claimant by the LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 21 of 41.
management on 16122015 is illegal and/or unjustifiable? OPW"
17. Both the parties have filed their written submissions in support of their arguments and A.R for workman have relied upon the judgment which are as under :
On the issue of terms of reference.
(1) 1967 I LLJ 423 Sc, Delhi Cloth General Mills Co. Ltd. (2) AIR 1979 SC 1356 Pottery Panchat.
(3) ILR (1981) II Delhi, Indian Bank Vs. R.K. Baweja (4) 1982 LAB.IC 1309, M/s Indian Tourism Development Cor. (5) 1987, I LLJ 141 English Electric Company of India Ltd. (6) 1997 I AD (Delhi) 134 Shri Moolchand Khairati Hos. On the issue of applicability of I.D. Act. (7) The Associated Press Vs. Luinda Keys Long & Anr. WP(C) No. 3738/2008 dated 31..07.2009.
(8) M/s Bennet Coleman & Co. Ltd. Vs. State of Bihar & Ors. (SC) Crl. Appeal No. 269/2015 dated 10.02.2015. On the issue of Majithia Wage Board Award. (9) Shobha Ram Vs. Ramesh Chandra Aggarwal, WP (C) No. 246/11.
On the issue of reinstatement with full back wages. (10) (1981) 3 SCC 225 : Mohan Lal Vs. Mgt. of M/s Bharat Elec Ltd.
(11) AIR 1986 SC 458 : Workmen of American Vs. Mgt. Amercian Express.
(12) 2015 (1) Scale 360 : Jasmir Singh Vs. State of Haryana & Anr.
LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 22 of 41.
(13) 2010 (4) Scale 203 : Anoop Sharma Vs. Executive Engineer Public Health Div.
(14) 2010 (1) Scale 613 : Harjinder Singh Vs. Punjab Ware House Corpn.
(15) (2013) 10 SCC 324 : Deepali Gundu Survse Vs. Kranti Junior Mahavidyalya & Ors.
(16) (2007) 2 SCC 433 : J.K. Synthetics Ltd. Vs. K.P. Aggarwal & Anr.
(17) (2015) 8 SCC 150 : Fisheries Deptt. State of U.P. Vs. Charan Singh.
(18) 2014 (10) Scale, 135 : Raghubir Singh Vs. General Manager, Har. Roadway.
(19) 2019 (173) DRJ 281 (DB) : LPA 533/2017, Mahender Pal Vs. DTC.
18. On the other hand, A.R for the management also filed bunch of judgments relied upon by the management which are as under :
(1) Parry and Co. Ltd. Vs. P.C. Pal (AIR 1970 SC 1334) (2) Dadi Jagannadham Vs. Jammulu Ramulu and Ors. (2001) 7 Supreme Court cases 71) (3) Voltas Ltd. Vs. State of Maharashtra [2013(6) Mh. L.J 460) (4) Mool Chand Kharati Ram Hospital and Ayurvdic Research Institute Vs. Secretary (Labour) Government of N.C.T of Delhi [2002 (1) L.L.N 1191] (5)Workmen of Bengal Electric Lamp Works Ltd. Vs. Bengal Electric Lamp works Ltd. And Ors. [(1958) I LLJ 571] LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 23 of 41.
(6) Ranbir Singh Vs. Execitive Eng. P.W.D [2021 SCC On line SC 670] (7) Nilpur Tea Estate Vs. State of Assam & Ors. [(1996) 1 Supreme Court Cases 60] (8) Avishek Raja & Ors. Vs. Sanjay Gupta (2017) 8 Supreme Court Cases 435] (9) Messrs Bharat Iron works Vs. Balubhai Patel and Others [(1976) 1 Supreme Court Cases 517] (10) State of Uttar Pradesh and another Vs. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti & Ors. [(2008) 12 SCC 675] (11) L. Robert D'Souza Vs. Executive Engine Southern Railway and another [(19820 1 SCC 645] (12) Sirsilk Ltd. Vs. Government of Andhra Pradesh and another (AIR 1964 SC 160)
19. In his arguments, it is submitted by A.R for workman that services of workman has been illegally terminated by the management and Section of I.D has been violated and management has also violated section 25 F and G. It is also submitted that the management in their written statement has admitted that the services of workman has been terminated by management and later on termination letter was revoked by the management and workman was reinstated by the management and subsequently the workman has been retrenched from the services of the company by paying retrenchment wages along with other legally recoverable wages. During the course of arguments. It is also submitted by A.R for LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 24 of 41.
workman that the turnover of the management was very high but the category of the management not changed as per the turnover which is reflecting in Ex.MW1/W2 and with the sole intention that not to pay the legally recoverable dues and to minimize the wages as per the recommendations of Majithia Wage Board Award, the category of the management company was not changed and it was shown in lower category so that the management can avoid the increased wages as per the Majithia Wage Committee report.
20. On the other hand, A.R for management has submitted that the category Ex.MW1/W2 is showing the profit and loss of the management company.
21. Herein in the present case, it is to be noted that the category of the company was high but the same was not shown in the higher category even the turn over of the company was high only with the sole motive to defeat the interest of the workman by not extending the benefit of wages increased due to the Majithia Wage Board Award which were to be paid to workmen after the approval of committee report.
22. In his arguments it is also argued by workman that workman has been harassed with the sole motive to terminate them and to withheld their wages and the action of the management in terminating the workman was illegal and unjustifiable. It is also submitted that even some of the workmen were transferred to some other places with the sole motive to harass so they themselves can leave the management or to remain absent at their place of posting so that the management can take appropriate action against them. It is LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 25 of 41.
further submitted by A.R for workman that the subsequent action on the part of management by revoking the termination was an after thought action only with the sole motive to defeat the very interest of workman and to act against the terms of reference after withdrawal of the termination, the workman has been reinstated and they were later on retrenched by paying the retrenchment compensation which clearly malafide on the part of management and this itself clearly indicates that the management had terminated the services of the workman illegally and unjustifiably and later on the colour is given to the termination as of retrenchment by paying the wages as applicable as per the post of workman.
23. A.R for workman also submits that as per section 25 F which reads as under :
"25 F. Conditions Precedent to Retrenchment of Workmen No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until :
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay (for every completed year of continuous service ) or any part thereof in excess of six months; and LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 26 of 41.
(c) notice in the prescribed manner is served on the appropriate Government (or such authority as may be specified by the appropriate Government by notification in the Official Gazette)".
The termination is held to be illegal if the conditions of Section 25 F are not complied with.
24. In his arguments it is submitted by A.R for workman that the management has decided to pay only 30% of basic pay as per interim measure. It is submitted that in that course, it illegally and unjustifiable broke the basic pay in two parts i.e 1. Basic Pay and 2. Personal Pay and it was done to reduce the basic pay as lower level so as the other allowances shall be computed on that basis of the basic pay could be kept at the minimum level and by reducing the basic pay meant to reduce the amount of allowances also and consequently the total salary is effected by not following the the recommendations of the Majithia Wage Board Award. It is also submitted that the management stopped the yearly increments in the basic pay and also not paid bonus to the workman for so many years. A.R for workman also raised the issue of biasness against the management and submitted that the management against the dignity of labour, unfair labour practice and harassed and victimized the workmen apart from violating the principles of natural justice and the fundamental right to life consisting right to livelihood/earning. A.R for workman prayed that the action of the management by terminating the services of the workman and later on by paying the retrenchment compensation and the workman is entitled for LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 27 of 41.
reinstatement with full back wages.
25. On the other hand, A.R for management also submitted that the services of the workman were terminated in terms of his service conditions as per the bye laws of terms and conditions of service effective for 01.01.1985 in clause 18, which read as under :
"The employment will be liable to be terminated on either side on giving three months notice or payment of salary in lieu thereof".
It is also submitted that the management however taking into consideration the considerable period of employment and on legal advice and as an abundant caution took a policy decision to follow the procedure of retrenchment as provided under Section 25 F of I.D Act and for that reason the management has issued letter dated 31.05.2016 withdrawing the termination letter dated 16.12.2015 and the claimant was considered on the employment w.e.f 17.12.2015 to 31.05.2016. It is further submitted that the management had taken a decision and retrenched the claimant from his employment w.e.f 01.06.2016 and all compliances under the provisions of Industrial Dispute Act including the payment of retrenchment compensation, notice pay and other compliances were duly carried out by the management and a sufficient amount as retrenchment compensation has been paid to the workman.
26. In his statement of claim, the workman has prayed for reinstatement with full back wages from the date of his alleged illegal termination and continuity of services, while the arguments of workman was roaming around the claim of wages as per the Majithia Wage Board Award. In his arguments, AR for the LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 28 of 41.
workman has argued that there is a gross violation of Section 25 F and 25 G. In the claim petition, the claimant has raised the allegations of harassment and illegal termination of his services by the management. During the course of his arguments, A.R for the workman submits that the workman has been victimized by the management only with the purpose to defeat their claim of increased wages as per the Majithia Wage Board Award and the management has withheld the wages of workman illegally.
27. Before coming to the final conclusion, I deem it appropriate to refer the relevant provisions of Industrial Dispute Act which has been referred by the AR for the workman. Present reference is a reference under Section 10 of I.D. Act. Section 10 (4) of Industrial Dispute Act reads as under :
[(4) Where in an order referring an industrial dispute to [a Labour Court, Tribunal or National Tribunal] under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, 10[the Labour Court or the Tribunal or the National Tribunal, as the case may be], shall confine its adjudication to those points and matters incidental thereto.
28. AR for the workman also refer Section 25 F and 25 G, which reads as under :
Section 25F of Industrial Disputes Act : Conditions precedent to retrenchment of workmen. No workman LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 29 of 41.
employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) The workman has been paid, at the time of retrenchment, compensation which shall be equivalent o fifteen days; average pay [for every completed year of continuous service] or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the official gazette].
Section 25G of the Industrial Disputes Act: 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 LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 30 of 41.
category, unless for reasons to be recorded the employer retrenches any other workman.
29. Though in his arguments, the grievances of claimant appears to be regarding non payment of increased wages as per the Majithia Wage Board Award, but, in his prayer in his claim petition, the workman is praying for reinstatement with full back wages.
30. On the other hand, AR for the management submits that there is no denial regarding termination of the services of workman by the management as pleaded in the written statement by the management, but at the same time, the termination was revoked by the management on 31.05.2016 and the period of termination was considered as continuity of service of the workman. Finally, the workman has been retrenched by the management by paying him the retrenchment compensation and by following the due process of law.
31. It is further submitted by AR for the management that the only question remains for adjudication is to decide the issue of retrenchment whether the adequate retrenchment compensation is given to the workman or not. It is further submitted by AR for the management that though the matter was ended at the stage when the retrenchment compensation was paid to the workman, but the Ld. Predecessor of this Court vide order dated 26.09.2016 has been pleased to held that this Court cannot go beyond the terms of reference and continued with the present matter to adjudicate the reference.
32. It is further submitted by AR for the management that as per Section 10 (4) of the Industrial Dispute Act as amended up to date. LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 31 of 41.
Section 10 (4) of Industrial Dispute is as under :
(4) Where in an order referring an industrial dispute to [a Labour Court, Tribunal or National Tribunal] under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, [the Labour Court or the Tribunal or the National Tribunal, as the case may be,] shall confine its adjudication to those points and matters incidental thereto.
33. It is submitted by AR for the management that the termination and revocation of termination and thereafter the payment of retrenchment compensation is a series of action and reaction on the part of management and as per Section 10 (4) of Industrial Dispute Act made it clear that the payment of retrenchment compensation and revocation of termination is an incidental matter in continuity of the termination of service of the workman by the management. AR for the management has also relied upon the latest judgment of the Hon'ble Apex Court cited as Ranbir Singh vs Executive Engineer PWD 2021 SCC online SC670 in the aforesaid judgment, the Hon'ble Apex Court has also referred the judgment of Hon'ble Apex Court titled as B S N L vs Ghurumal (2014) 7 SCC 177. In the judgment, the Hon'ble Apex Court refer the para no. 34 of the judgment as under :
34.The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 32 of 41.
payment of retrenchment compensation and notice pay as mandatorily required under Section 25F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on dailywage basis and even after he is reinstated,he has no right to seek regularisation [see State of Karnataka v. Umadevi (3) [State of Karnataka v. Umadevi (3),(2006) 4 SCC 1 :
2006 SCC (L&S) 753] ]. Thus, when he cannot claim regularisation and he has no right to continue even as a dailywage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.
34. It is also submitted by AR for the management in his arguments that the only claim of the workman is to asked for the increased wages as per the Majithia Wage Board Award and such petition is maintainable only under Section 17 of the Working Journalist and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 and the present petition of the workman for reinstatement is not maintainable in the present LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 33 of 41.
form. In his arguments it is submitted by AR for management that the claimants in their claim petition as well as in their arguments has leveled the allegations of victimization and threats. It is submitted that no such single complaint for any alleged threat has been lodged by the claimant to the police or the same is also not filed on record. It is submitted that there is no case either initiated by any Court or pending before any Court of law. Even no such documents has been produced regarding the threats and victimization.
35. In his arguments it is also submitted by A.R for management that admittedly there is no effort on the part of claimant after the retrenchment and the claimant has admitted in his examination.
"I am unemployed since the date of my termination and awaiting the verdict of the Court. I have not tried to search for employment anywhere:
This deposition of the claimant itself clearly indicates that claimant is sitting idle and he is having a family to look after and it is not possible that a person having family can sit without job as the claimant being the sole bread earner has to look after his family for daily needs.
36. In his arguments, it is also submitted by A.R for management that after the publication of report of Majithia Wage Board Award the same has been challenged by so many workmen before the Hon'ble Supreme Court and same has been finally decided by Hon'ble Supreme Court vide judgment titled as Avishek Raja & Ors. Vs. Sanjay Gupta (2017) 8 SCC 435. The Hon'ble Supreme LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 34 of 41.
Court in para 29 has been pleased to held as under :
29. having clarify all doubts and ambiguities in the matter and upon holding that none of the newspaper establishment should, in the facts of the cases before us, be held guilty of commission of content, we direct that hence fourth all complaints with regard to non implementation of Majithia Wages Board Award or otherwise be dealt with in terms of mechanism, as provided under section 17 of the Act. It would be more appropriate to resolve such complaints and grievances by resort to the enforcement and remedial machinery provided under the Act rather than by any future approaches to the Court in exercise of the contempt jurisdiction of the Court or otherwise".
37. From the bare reading of the aforesaid para it is clear that the Hon'ble Apex Court has been pleased to held that the recommendation of the Majithia Wage Board Award can be enforced by adopting the mechanism provided under the Working Journalist and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 and no contempt petition shall be entertained for non implementation of the MWBA.
38. A.R for the workman has also relied upon the judgment titled as Tapas Kumar Kaul Vs. Bharat Sanchar Ltd. (2014) 15 SCC 313, in para no. 4 it has been held by Hon'ble Apex Court :
4. It is no doubt true that a court can pass an order substituting an order for reinstatement by awarding compensation but the same has to be based on justifiable LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 35 of 41.
ground viz. Where the industry is closed II where the employee is superannuated and has going to retire short (III) where the workman has been rendered incapacitated to discharge the duty and can not be reinstated and/or when he has lost confidence of the management to discharge duties. What is sought to be emphasized is that there may be appropriate case on facts which may justify substituting the order of reinstatement by award of compensation, but that has to be supported by some legal and justifiable reason indicating why the order of reinstatement would be allowed to be substituted by award of compensation.
39. It is submitted by A.R for workman that Hon'ble Apex Court has been pleased to set aside the order of Hon'ble High Court and restore the award of the tribunal with the reinstatement of workman. It is submitted by the A.R for workman that in the present case the management has not issued any charge sheet. No departmental proceedings have been conducted against the workman and he has been terminated without any justifiable reason therefore, the workman is entitled for reinstatement with full back wages, as due to loss of employment he suffered mental trauma, benefit of health, loss of study, loss of social status.
40. From the above discussion, it is clear that the workman was terminated on 16.12.2015 without conducting any disciplinary enquiry without serving any charge sheet to workman and later on the termination has been withdrawn by the management and they were reinstated and were treated as continue in service for the period LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 36 of 41.
of termination and later on the claimant has been retrenched by paying the retrenchment compensation. In these circumstances, I am of the considered opinion that the services of the workman has been illegally terminated by the management. Accordingly, the issue is decided in favour of the workman and against the management.
41. Relief :
In the claim petition in the prayer clause, the workman has prayed for reinstatement with full back wages and other consequential benefits with continuity of service. The reference has been received by the Court regarding illegal termination of the workman and the reliefs for which the workman is entitled for and what directions are necessary in this respect. The entire arguments of A.R for workman was roaming around the issue of illegal termination as well as the fact that they have not been given the retrenchment compensation as per the Majithia Wage Board Award. There was an issue raised by the A.R for workman that the management has shown the establishment in 8th category, where the business of establishment should be less than one crore. In the documents exhibited by the workman vide Ex.WW1/4 where the letter was issued to the workman vide letter dated 03.10.1997, the management has informed the claimant that the management has decided to keep the establishment in 6th category and the wages were paid as per the recommendations of Bachawat Pay Commission. When the establishment was already in 6th category, therefore LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 37 of 41.
showing of the establishment in 8th category as reflected in Ex.WW1/21, after the recommendations of Majithia Wage Board Award appears to have been kept deliberately to minimize the wages of the claimant and same is uncalled for. However, in the documents available on record file, it is also proved on record that the recommendations of Majithia Wage Board Award has already been implemented by the management vide Mark A running in five pages, wherein the workers has been informed by the management that they have implemented the recommendations of Majithia Wage Board Award and the fifth installment is already paid as reflected in email dated 04.03.2016. Therefore, it can not be accepted that the management has not implemented the recommendations of Majithia Wage Board Award.
42. By putting the establishment in 8th category may cause the financial loss to the workman but no such deposition is made to the effect that how much amount is calculated as per the recommendations of Majithia Wage Board Award. As it is already discussed above regarding Section 10 (4) of the Industrial Dispute Act where it is mandated that the tribunal or the Labour Court shall confine its adjudication to those points and matters which are incidental thereto.
43. Here in the present case, if we take the dispute in series of action and reaction, firstly the workman has been terminated by the management which has been held to be illegal as per the findings LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 38 of 41.
given in the issue no. 1 but at the same time the termination was revoked by the management and the absent period was treated as continuity in service and the retrenchment compensation has been paid to the workman by the management following the provision of Section 25 G of Industrial Dispute Act. In view of the latest judgment of Hon'ble Apex Court in case titled as Ranbir Singh vs Executive Engineer PWD 2021 SCC online SC 670 in the aforesaid judgment, the Hon'ble Apex Court has also referred the judgment of Hon'ble Apex Court titled as BSNL vs Ghurumal (2014) 7 SCC 177. In the judgment, the Hon'ble Apex Court refers the para no. 34 of the judgment as under :
34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non payment of retrenchment compensation and notice pay as mandatorily required under Section 25F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation.
Since such a workman was working on dailywage basis and even after he is reinstated,he has no right to seek regularisation [see State of Karnataka v. Umadevi (3) [State of Karnataka v. Umadevi (3),(2006) 4 SCC 1 :
2006 SCC (L&S) 753] ]. Thus when he cannot claim LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 39 of 41.
regularisation and he has no right to continue even as a dailywage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.
44. The management has also filed on record the terms and conditions of service vide Ex.MW1/W5 where in clause 18 which read as under :
"The employment will be liable to be terminated on either side on giving three months' notice or payment of salary in lieu thereof. However, no notice would be necessary to be given by the company if in the opinion of the company an employee is found guilty of any of the mis conducts as are generally understood in employment, particularly disobedience insubordination, insolance, any acts subversive of discipline, habitual negligence of duties, breach of trust, dishonesty or embezzlement, illegal strikes, habitual late attendance or absence; goslow, neglect etc. etc".
45. The claimant is signatory to these terms and conditions dated 06.11.1996, as after the revocation of termination the workman was reinstated by the management and period of five months was treated as continuity of service and he has been given retrenchment LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 40 of 41.
compensation, therefore in my considered opinion the workman is not entitled for any relief from this Court. Accordingly his claim is dismissed. However, it is made clear that the workman shall be at liberty to file recovery petition under the I.D Act u/s 33 C (2) or under Section 17 of Working Journalists and other Newspaper Employees (Condition of Service) and Miscellaneous Provisions Act as applicable for the increased wages, if any as per the recommendations of Majithia Wage Board Award. The reference is answered accordingly. Copy of Award be uploaded on the website of RADC. Copy of the same be also sent to concerned department through electronic mode or through Dak. File be consigned to record room after due compliance.
Announced in the open court.
Dated : June 08, 2022.
(Mukesh Kumar) Presiding Officer Labour Court Rouse Avenue Courts Complex, New Delhi.
LID No. 7911/2016, Anil Kumar Choudhary Vs. Bharat Prakashan (Delhi) Ltd. Page No. 41 of 41.