Delhi District Court
(124) Flr 72 And M/S P V K Distillery Ltd. vs . Mahendra Ram, on 7 January, 2011
IN THE COURT OF DR. T. R. NAVAL ADDITIONAL DISTRICT
& SESSIONS JUDGE / PRESIDING OFFICER LABOUR
COURT KARKARDOOMA COURTS, DELHI
DID NO.39/10 (New) 46/09 (Old)
Date of Institution : 21.01.2009
Date of Arguments : 06.01.2011
Date of Award : 07.01.2011
IN THE MATTER BETWEEN:
Shri Dinesh Kumar
S/o Shri Mushafir Singh
C/o Delhi Dalit Mazdur vikas Sangathan
CB-6, Ringh Road, Naraina
New Delhi-28
The workman
AND
M/s S.D.S. Security Pvt. Ltd.
AB-14B, Safdarjang Enclave,
New Delhi-110019
The management
AWARD
This award will dispose of a statement of claim filed by
the workman directly in the Labour Court on 21.01.2009.
2. The facts in brief of the workman case are that he joined
the management on 01.12.2001 as Security Guard and his last
drawn salary was Rs.5,300/- per month. Although he had been
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working with honesty and and to the satisfaction of the
management, yet the management was resorting to unfair
labour practice as it was not providing all the legal facilities to
the workman to which she was legally entitled. The
management was taking 12 hours duties in a shift but he was
paid only for 8 hours of duty. The facility of bonus, earned
wages were being given to the employees of the management
at the whims and fancies of the management. The
management during the course of employment procured his
signatures on several blank, printed papers and vouchers etc.
He was working under the supervision and control of field
officer Shri Harish Chander who had taken a loan of Rs.8,000/-
on 02.02.2007 from the workman with a promise to return
within two months. When he did not return the amount in
stipulated time, the workmen requested him to repay the
settled amount but instead of paying the amount, he
threatened the workman that in case he would demand said
amount again then his services would be terminated. As the
workman was in need of money, he again demanded the said
amount on 13.05.2008. When he reported for duty on
14.05.2008, he was not allowed to join/resume his duties and
was asked to come for duty after 10 days and when he again
reported for duty after 10 days he was again asked to come
after 10 days and so on and ultimately on 26.07.2008, he was
finally told that no duty will be assigned to him. Termination
of his services amounts to retrenchment U/s 2 (00) of the
Industrial Dispute Act, here in after referred to as the Act. As
the management failed to observe the mandatory provisions of
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Section 25 of the Act, therefore, his termination is void ab-
initio. He sent a demand notice dated 14.08.2008 through
registered A.D., and UPC. It was received by the management
but neither the management sent any reply nor reinstated him
in service. He raised an industrial dispute before the
conciliation officer which resulted into failure due to
absence/non-participation of the management. The
management neither issued him any memo or charge sheet
nor conducted any inquiry against any mis conduct. He has
been without employment since the date of transfer of his
services. The workman prayed for passing of an award for his
reinstatement in service with full backwages.
3. The management admitted that the workman joined the
management on 01.12.2001 as Security Guard. It was pleaded
by the management that his last drawn salary was Rs.3,633/-
per month. The management contested his case on the
ground inter-alia that the management never terminated or
retrenched his services. Conversely, the workman absented
from his duties unauthorisedly and without any pre intimation
or pre sanctioned leave from 21.05.2008. The management,
before the conciliation officer asked him to join his duties but
he again failed to join his duties with the management. The
management never violated any provisions of the Act and
particularly provisions of Section 25 G of the Act. The
Management denied all other material allegations and prayed
for dismissal of his statement of claim.
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4. In his rejoinder, the workman controverted the objections
raised in WS and reiterated the averments made in the
statement of claim
5. On the pleadings of the parties, following issues were
framed:
1. Whether the workman absented himself from his
duties and if so, to what effect? OPM
2. Whether the management terminated services of
the workman illegally and unjustifiably and if so, to
what effect? OPW
3. Relief.
6. In support of his case workman examined himself as
WW1. He filed and proved his affidavit as Ex. WW1/A and
relied on documents Ex. WW1/1 to Ex. WW1/4 and also filed
documents mark A & B.
In support of its case, the Management examined Shri M.
A. Jinna, Manager (HR) as MW1. He filed and proved his
affidavit as Ex. MW1/A.
7. I have heard the arguments addressed by counsel for the
parties and perused the file.
8. On perusal of the pleadings of the parties, analysing
evidence and material placed on record and considering the
arguments, addressed by counsel for the workman, I have
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formed my opinions on the issues and that are discussed here
in below issue-wise:
FINDINGS ON ISSUE NO.1:
9. The burden to prove this issue was on the Management
and it had to prove that workman absented himself from his
duties. On analysing the evidence and material on record, I
came to the conclusion that the management has failed to
prove that the workman absented himself from his duties. The
reasons which support my decision are firstly, that the
management took contrary stands. In his written statement,
the management pleaded that the workman had been
absenting himself from his duties w.e.f. 21.05.2008 without any
intimation or pre sanctioned leave, whereas in the affidavit Ex.
MW1/A, it was mentioned that the workman resigned from his
services and received his all legal dues.
10. Secondly, the management has failed to file and prove
any documents either to establish that the workman resigned
from his services or he was absenting from his duties
21.05.2008. MW1 in his cross-examination admitted that in his
affidavit, it was written by him that the workman resigned and
he can file the copy thereafter. The management has not filed
any documents in this regard, therefore an adverse inference
U/s 114 (g) of the Indian Evidence Act is drawn in favour of the
workman and against the management and it is held that the
management has failed to file and prove said documents as it
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was favourable of the workman.
11. Thirdly, MW1 in his cross-examination admitted that as
the workman was absenting from his duties w.e.f. 21.05.2008
so the management wrote letters to workman calling upon him
to join his duties and he could file copies of that letters in the
court. No such documents was filed in the court. As
mentioned above, if the workman had resigned from his
services then there was no occasion for the management to
issue letters to the workman calling upon him to join his
duties.
12. Lastly, the workman in his affidavit Ex. WW1/A, has
stated that the management terminated his services on
26.07.2008 by not assigning him any duty. He was cross
examined but nothing come out which could established that
his statement in that regard was not true.
In view of the above reasons, discussion and evidence on
record and particularly discussed here in above, issue no.1 is
decided in favour of the workman and against the
management and it is held that the management could not
prove that the workman had been absenting from his duties
unauthorisedly w.e.f. 21.05.2008.
FINDINGS ON ISSUE NO.2:
11. The burden to prove this issue was on the workman and
he had to prove that management terminated his services
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either illegally and/or unjustifiably. MW1, in his cross
examination admitted that the workman joined the
management on 01.12.2001 and his last drawn salary was Rs.
3,633/-. It has also been established on record that the
workman had been working with the management admittedly
upto 21.05.2008. Thus, it has been established on record that
the workman had been in continuous service of management
for a period of more than 240 days preceding the date of
termination of his services. It is not a case of the management
that the workman was assigned any reason or that he was
served any memo or notice or offered or paid wages, in lieu of
notice or retrenchment compensation. It is also not a case of
the management that the workman was issued any charge
sheet for committing misconduct of unauthorised absence or
an inquiry against the workman was conducted. The workman
in his affidavit Ex. WW1/A has categorically stated that initially
the management refused to assign any duty on 14.05.2008
and finally he was told on 26.07.2008 that he would not be
given duty. The management could not rebut his statement or
could not shake his testimony. Thus, the evidence on record
has established that the management violated the provisions
of Section 25F of the Act and the principals of natural justice.
In view of the above reasons, discussion and evidence on
record and particularly discussed here in above, issue no.1 is
decided in favour of the workman and against the
management.
DID No. 39/10 7 of 10
FINDINGS ON ISSUE NO.3:RELIEF:
13. WW1 in his statement of claim and affidavit stated that
he had been without employment since the date of termination
of his services. In cross examination he denied the suggestion
that he was serving elsewhere. He also stated that his wife
was working and she was bearing the expenses of his family.
However, he could not give details where the workman tried to
get alternate job after termination of his services in May 2008.
In these circumstances and in view of the principles of law laid
down in case Reetu Marbles and Prabhakant Shukla 2010
(124) FLR 72 and M/s P V K Distillery Ltd. Vs. Mahendra Ram,
1009(2) SCT 369 it is held that the workman is entitled to get
backwages to the extent of 50%.
14. 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 we direct that the respondent shall
be paid 50 per cent of the back wages from the date of
termination of service till reinstatement."
15. 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
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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 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.***"
ORDER
16. Consequent upon decisions of all issues in favour of the workman and against the management, case is decided in favour of the workman and against the management and it is held that management terminated services of the workman not only illegally but also unjustifiably and he is entitled to get DID No. 39/10 9 of 10 reinstatement in service with 50% of his backwages.
17. Accordingly, Appropriate Government is advised to direct the management to reinstate the workman as Security Guard within 30 days from the date of publication of this award and also pay him 50% of his backwages at last drawn salary, i.e., Rs.3,633/- per month or 50% of the minimum wages fixed for the post of security guard at relevant time whichever are higher since the date of termination of his services till the date of realization.
Award is, accordingly passed.
15. Copy of award be sent to the Secretary Labour, Govt. of NCT, Delhi for publication as per rules.
File be consigned to record room.
Announced in the Open Court on 7th January 2011 (DR. T. R. NAVAL) Additional District & Sessions Judge Presiding Officer, Labour Court, Karkardooma Courts, Delhi.
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