Delhi District Court
Sh. Naval Kishore Garg vs Jay Prakash Associates Pvt. Ltd. J.A on 31 March, 2023
IN THE COURT OF MS. BHAVNA KALIA,
ADDL. DISTRICT & SESSIONS JUDGE, POLC-V:
RADC:DELHI
NEW LIR No : 8/2023
In the matter of :
Sh. Naval Kishore Garg,
S/o Shri Chornji Lal Garg,
Village & Post IKLOD,
Tehsil Vijapur, Distt. Morena (M.P.)
......Workman/ Claimant.
Versus
Jay Prakash Associates Pvt. Ltd. J.A.
House 63, Vasant Lok, Vasant Vihar,
New Delhi - 110 057
Through Executive Director Hd. Qr.
.....Management/ Respondent.
Date of Institution : 26.04.1988
Date of pronouncement of the judgment : 31.03.2023
JUDGMENT
PART-A REFERENCE The Secretary (Labor) Delhi Admn. Delhi while exercising his powers U/S 10 (1) (c) and 12 (5) of the Industrial Dispute Act, (hereinafter referred to as the Act) R/w Govt. of India, Ministry of Labor, Notification No.S-11011/2/75-DK(IA) dated 14.04.1975 vide letter no. F24 (4507)/87-Lab.704-9 has sent the following reference to this court for adjudication.
"Whether the termination of services of Shri Nawal Kishore Garg is illegal and/or unjustified and if so, to what relief is he entitled LIR No. 8/2023 Page No. 1 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
and what directions are necessary in this respect?"
PART-B CLAIM
1. The workman submitted in his statement of claim as follows:
a) that Jay Prakash Associates was a registered Pvt. Ltd. Co. and its Head Office was in Vasant Vihar, New Delhi;
b) that near about March, 1979, the company was registered as a Pvt. Ltd. company and before registration it was known as Jay Prakash Associates only;
c) that he was initially appointed in the company w.e.f.
14.01.1978 as clerk and was posted at Rishikesh and after about a year, he was transferred to Tehri where he was posted for one year after which he was transferred to Vishakhapatanam where he remained posted till 11.07.1985;
d) that he was sent for training in Accounts vide order dated 09.07.1985 for which he was given advances as T.A. and D.A. of Rs.2000/- and accordingly he proceeded to Delhi and reported there on 15.07.1985;
e) that he submitted his T.A/D.A. bills and the amount of advance was adjusted;
f) that he stayed in Delhi for about four days and met Shri Mohan Mishra, General Manager, Headquarters and Shri Ravi Sarin and other officers of the Company and that Shri Mohan Mishra told him that he would give orders of posting after consulting the Director;
g) that the Executive Director, Headquarters, Shri Suresh Kumar verbally told him that his services were not required, but no written order was given to him;
LIR No. 8/2023 Page No. 2 of 41Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
h) that thereafter, he met the Chairman, Shri Jay Prakash and narrated all the facts, on which he was assured that his posting order will be conveyed by the end of October, 1985 at his residence and so he returned to his native place because it was impossible for the him to stay in Delhi without any source of income.
i) that to his utter surprise, he was served with a notice dated 03.09.1985 of termination from service delivered near about 10.09.1985.
j) that in this order allegations of remaining absent from duty had been made against him without serving a show cause notice.
k) that the order of termination was clearly a punitive one and against the Standing Orders and the principles of natural justice.
l) that he was a mere workman within the meaning of Sec.2(s) of the Act as his main duty was clerical as he had to check the statements and records of other Account Clerks, and was only a Senior Accounts Clerk;
m) that the designation of Accountant given to him was immaterial as he had no right to supervise the work, nor had the powers to appoint or dismiss any clerk and he also had no right to sanction casual leave of any employee;
n) that the order of termination was passed without any enquiry and without giving any opportunity of hearing to him;
o) that even if the order of termination is deemed to be the order of simple termination, it amounts to retrenchment as defined in Sec.2(oo) of the Act and he was neither paid the LIR No. 8/2023 Page No. 3 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
retrenchment compensation nor notice pay which was mandatory under Section 25-F of the Act.
p) that the juniors had been retained in service without any sufficient cause which was in violation of Sec.25-G of the Act;
q) that the company of the management/respondent employed more than 100 workmen and therefore Sec. 25- N of the Act was also applicable and no permission had been taken from Government for retrenchment.
r) that on account of illegal termination by the management, he had been suffering loss of his wages, as he could not get any other employment after his discharge from service by the respondent/management.
2. It is stated that thereafter the dispute was referred by Delhi Administration for adjudication before this court.
3. Workman in his statement of claim has prayed for declaring the order of termination dated 03.09.1985 as illegal and void and for reinstatement of applicant/workman on his previous post with arrears of wages, allowances, bonus etc. along with cost. (during oral submissions, workman retracted the relief of reinstatement considering the year of the case and his own age.) PART-C MANAGEMENT'S STAND/REPLY
4. The management filed written statement denying the claim of the workman. It is stated by the management that reference order was mis-conceived, bad in law and was liable to be rejected as Delhi Administration had made the LIR No. 8/2023 Page No. 4 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
present reference mechanically and without application of mind and without even caring to consider the submissions made by the management during the proceedings in conciliation. It is stated that the Delhi Administration had no territorial jurisdiction to refer the present matter in as much as the workman had last worked with the management at their office at Vishakhapatnam, Andhra Pradesh and he did not report for duty upon his transfer from Vishakhapatnam office to Delhi Office.
5. It is stated that in any event the applicant was not a "workman" as per Section 2(s) of the Industrial Disputes Act, 1947 in as much as he was employed as a temporary Accountant and performing duties essentially of supervisory nature and was drawing a monthly salary of over Rs.1,600/-.
6. On merits it is stated that the workman/applicant was employed by the management as a temporary Accounts Clerk w.e.f. 01.02.1979 and not w.e.f. 14.1.1978 as alleged and that he was posted at their branch in Dobatta, Tehri. It is stated that he was transferred to Visakhapatnam branch where he joined on 4.11.1982. It is stated that he was informed as per telex given on 01.07.1985 to report at the New Delhi Office for a training program and that since he did not report for duty in response to the telex, as per letter dated 09.07.1985, he was again informed to report at the Head Office at New Delhi for the training program on or before 15.07.1985.
7. It is admitted that workman/applicant was granted advance as TA and DA of Rs.2000/- and was directed to LIR No. 8/2023 Page No. 5 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
report at Delhi Office on or before 15.07.1985. It is denied that workman reported for duty at the Delhi office on 15.07.1985, as alleged. It is denied that he reported at the Delhi office and stayed there for about four days and met General Manager, Hqs, as well as Executive Director Hqs., who told him that his services were not required. It is also denied that the workman had met the Chairman of the company earlier, who as alleged assured the workman that he would get his posting orders and that on his assurance he had left for his native place. It is stated that even after obtaining necessary TA and DA advance, the claimant never reported for duty at the Head Office on or before 15th July, 1985 as directed to him and continued to remain unauthorisedly absent. It is stated that accordingly the management was compelled to issue him a letter no.JAPL:PERS:22/2254 dated 3rd September, 1985 removing his name from the rolls of the company on account of his unauthorised absence from duty.
8. It is submitted that since the name of the workman/applicant was removed from the rolls on account of his unauthorised absence from duty since 15.07.1985, there was no necessity to have issued him any show cause notice. It is also denied that action of management was punitive and against the standing orders or principles of natural justice.
9. It is stated that the management company was engaged in the construction of bridges, dams etc. and that the company was engaged in time bound contracts and had to adhere to time bound schedules in execution of LIR No. 8/2023 Page No. 6 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
commitments undertaken by them. It is stated that in view of the nature of work the management company required regular attendance on the part of employees and could not tolerate any laxity or unauthorised absence from duty of any employee, which could result in dislocation of general work schedule.
10.It is denied that nature of duties being performed by the workman/applicant were clerical in nature and that he had no right to supervise the work of other personnel working under him. It is submitted that the workman being an Accountant was performing duties essentially of supervisory nature. It is stated that he used to supervise the work of other clerks working in the Accounts Department and used to direct them in the day to day execution of work. It is stated that the leave to the clerical staff working in the Accounts Department used to be granted on his recommendations. It is stated that the action against the employees working in the Accounts Department also used to be taken, if so recommended by the workman/applicant. It is submitted that in view of the nature of duties performed by the applicant and his last drawn monthly salary being over Rs.1,600/-, he was not a workman within the meaning of Section 2(s) of the Act.
11.It is submitted that the management did not terminate the service of the applicant and hence there was no occasion for them to have given him any opportunity or to have held any enquiry. It is stated that the name of the applicant was removed from the rolls on account of his continued unauthorised absence from duty w.e.f. 15 th July, LIR No. 8/2023 Page No. 7 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
1985. It is stated that the action was taken by the management as per terms and conditions of service applicable to him.
12.It is stated that the removal of the name of the applicant was on account of his long and continued unauthorised absence from duty which did not amount to termination by the management and the provisions of Section 2(oo), 25F and 25G of the Act were therefore, not attracted. It is stated that further, in any event, the applicant being employed in supervisory nature and drawing a salary of over Rs.1600/- per month was not a "workman" as per Section 2(s) of the Act and hence the provisions of the Act were not applicable to him.
13.It is stated that provisions of Section 25N of the Act, 1947 were not applicable to the management.
14.It is further submitted that as per the information available with the management, the claimant had been gainfully employed after his name was removed from the rolls of the company and in any event it was for the claimant to prove as to what efforts he had made to procure alternative employment and what had been his source of livelihood after his name was removed from the rolls.
15.It is denied that the claimant was entitled to any relief.
PART-D REJOINDER
16.The Workman denied the submissions made by management in the Written Statement and reiterated the submissions made by him in his Statement of Claim. He LIR No. 8/2023 Page No. 8 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
further clarified that his duties were clearly those of a clerk and that he had to complete the salary register and make payment of the salary to the concerned workmen. He stated that fortnightly musters were checked by him to see whether the amount was correctly calculated and entered in the muster. He stated that he was not holding any supervisory post. He stated that he was under the control and supervision of Senior accountant who was under Accounts officer and thereafter the Chief of Finance and Accounts controlled the work. It is reiterated that the claimant was a 'workman' and his services could not be terminated without holding an inquiry. It is further stated that the termination of the applicant from service was pre- planned as he was compelled to vacate the family quarter at Vishakhapatnam and was directed to take his family to his native place. He further denied the contents of the written statement.
PART-E ISSUES
17. From the pleading of the parties, following issues were framed, vide order, dated 04.09.1993 : -
1. Whether the petitioner is not a workman within the meaning of Section 2(s) of the I.D.Act?
2. As in terms of reference.
18. Vide order dated 17.05.1995, on application of the management, following additional issue was framed:
1. Whether Labour Court of Delhi has no territorial LIR No. 8/2023 Page No. 9 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
jurisdiction to try the present reference.
PART-F CLAIMANT'S EVIDENCE
19. In support of his case workman examined three witnesses. He examined himself as WW-1, Shri Ashok Kumar as WW2 and Shri Hari Shankar as WW3.
20.Workman (WW-1) tendered in evidence his affidavit Ex. WW1/A.
21.In his cross examination the workman has deposed that he had not given any application for appointment but said that he had filled up the forms supplied to him by the employer. He said that no appointment letter had been issued to him. He denied the suggestion that he had joined the employer on 01.02.1979 and voluntarily stated that he had joined on 14.01.1978. He said that he was initially posted at Rishikesh and thereafter he was transferred to Vishakhapatnam on 04.11.1982. He admitted that he got telex message from Delhi Office dated 1.7.1985 (wrongly typed as 17/85) to report at New Delhi Office for a training program. He also admitted that he had received a letter dated 9.7.1985 from New Delhi Office informing him to report at the head office at New Delhi for training program on or before 15.07.1985. He admitted that he had already received Rs.2000/- towards TA & DA for reporting at Delhi Office. He denied that he did not report at New Delhi Office till 15.07.1985. He has deposed that on 15.07.1985 he had reached New Delhi Office at about 10- 11 a.m. He said that he had reached New Delhi from LIR No. 8/2023 Page No. 10 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
Vishakhapatnam by train. He said that he did not remember on which date he had started from Vishakhapatnam. He said that he had traveled by first class after getting his reservation done. He said he did not remember by which train he had traveled and did not remember how much he had paid for the train ticket. He said that when he had started from Vishakhapatnam he had broken his journey at Murena (MP) to drop his family and he had stayed there for 1-2 days. He said that his full family including his wife and two minor daughters had traveled with him from Vishakhapatnam to Murena. He said that he did not remember from which train he had traveled from Murena to Delhi. He said that he did not remember the name of the train and neither did he remember the amount paid for the ticket, though he remembered that he had traveled by first class.
22.He has further deposed that on 15.07.1985 when he had reached the Head Office at New Delhi, he had met Mr. Mishra (General Manager) and also the Executive Manager in Basant Vihar Office at Basant Lok, without taking any appointment. He did not remember the name of the Executive Manager. He said that he had not talked to their PAs/ Secretaries to meet them but had gone straight to their rooms to see them. He said that firstly he had met Mr. Mishra who directed him to meet the Executive Manager. He said that the executive Manager told him that they had no work at that time for him and asked him to go home. He said that he remained in Basant Lok Office till the closing of the working hours. He said that the next day LIR No. 8/2023 Page No. 11 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
he went to see Mr. God, CMD of the office who told him that in two-three months' time there would be some work in Chamera Office and asked him to wait for the letter. He voluntarily stated that he had got his TA bill passed on 16.07.1985. He further deposed that during these two- three months he remained at home without work. He said that thereafter he got a letter from the management dated 03.09.1985.
23.He admitted that the company was engaged in the business of construction of bridges and dams and other civil works. He admitted that such work was time bound. He further admitted that depending on the nature of work and its exigencies, the employees were transferred to different offices and sites.
24.The witness further deposed that his main duties were making the salary accounts and distributing the same to the employees. He denied the suggestion of the management that he was doing supervisory duties. He also denied that he used to recommend leaves of the staff of accounts department.
25. Witness has further deposed that in January, 1985 his salary was Rs.1,525/- per month and in July his salary was 1675/- per month. He said that from July, 1985 to October, 1994 he had not done any work. He said that he had passed M.Com from Jivaji University, Gwalior. He said that he had not registered himself in any employment exchange. He said that he had tried for job at Cimco and Jiaji Suiting and Shirting. He said that he had applied for job there in accounts department. He said that he had not LIR No. 8/2023 Page No. 12 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
given any application. He said that he did not remember where office of Cimco was located at Gwalior. He said that he knew it was not in Laxmi Bai Colony and maybe it was in Birla Nagar. He said that he did not remember the name of the manager he had met at the Cimco Office. He said that his permanent residence was in MP and that he had not tried for any job in Delhi. He said that he was getting money from his father and he was living in joint family. He said that his father and elder brother were managing shop at Sambalgarh (MP). He said that his entire family was dependent upon his father and elder brother.
26.He has further deposed that M/s Naval Kishore Ashok Kumar grain merchant and commission agent, Sambal Garh Mandi (MP) was a proprietorship firm and it's sole proprietor was his father Shri. Chironji Lal. He said that the name of the firm had been formed on his name and that of his brother in law, Sh. Ashok Kumar. He denied the suggestion that he managed the affairs of this concern. He further deposed that the said firm came in existence in 1984 but he do not know when it closed down. He said that it had worked for two three years. He said that the said firm might have worked till December, 1987 when letters Mark X and Y were issued. He further denied the suggestion that the said firm was still in working order and he looked after the work of the said shop. He denied the suggestion that he never reported for duties/ training program on or before 15.07.1985 in Delhi Office. He further denied the suggestion that he was gainfully LIR No. 8/2023 Page No. 13 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
employed and had been earning much more than what he was getting from the employer. He further denied the suggestion that since he was residing in joint family he did not want to come and join work in Delhi.
27.WW-2 Shri Ashok Kumar Bansal tendered his affidavit in evidence as Ex.WW2/A. He stated that he was 1/3rd owner in M/s Naval Kishore Ashok Kumar and that claimant was also 1/3rd owner in the said firm and further that the claimant was removed as a partner from financial year 1985-86.
28.During his cross examination this witness has deposed that he knew the claimant and his family members for the last more than 20/25 years. He said that he had become partner in M/s Naval Kishore Ashok Kumar in the year 1984 but he did not remember the date and month. He said that when he joined the firm as partner the said firm was newly constituted and the name of the other two partners were Shri Hari Shanker and Shri Naval Kishore. He said that no document in writing regarding partnership deed was executed and the partnership was to the extent of 1/3rd each. He said that all the partners could sit at any time as per mutual agreement and the shop used to remain open from 8.00 am to 5.00 pm. He could not produce any document which might have shown that he was a partner in the said firm. He said that the father of the claimant was running a shop in the village during his life time, which was without name or without any registration with any department. He admitted that name of father of the LIR No. 8/2023 Page No. 14 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
claimant was late Shri Chironji Lal. He said that the registration number of the firm Naval Kishore Ashok Kumar as given by him in his affidavit was correct. He denied that late Shri Chironji Lal was the owner of the firm M/s Naval Kishore Ashok Kumar. He admitted that the registration of the firm was done by office of Commercial Trade Tax Murena, MP. He admitted that claimant had deposed before this court as witness in this case but he was not aware about his statement. He could neither admitted nor deny the genuineness of the certificate Mark X. He said that the firm M/s Naval Kishore Ashok Kumar was closed in the year 1986 or 1987, when the government closed down the operation of commission agents. He said that when the claimant was removed from the partnership no document in writing was executed and the accounts were settled as per practice on the occasion of Diwali. He said that similarly, no document in writing was executed at the time of closure of the firm. He said that the accounts of the firm were used to be written in the ledger. He said that he did not know who used to sign the ledger and that the claimant used to write the ledger. He was not aware if the ledger had been kept or destroyed. He denied the suggestion that the firm M/s Naval Kishore Ashok Kumar was running even today and that the claimant was working in the said firm since beginning till today. He said that he had appeared in the court to depose as a witness at the instance of the claimant. He said that Shri Naval Kishore had not briefed him about the statement nor had given him any expenses LIR No. 8/2023 Page No. 15 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
for travelling and that he had borne his expenses himself.
29. He further deposed that Shri Naval Kishore had worked with Shri Jai Parkash Industries for the last about 10-15 years but was not aware about the exact number of years of his working in the said company. He said that he was not aware if the claimant was transferred to Delhi or had failed to join duty at Delhi. He denied the suggestion that he was deposing falsely.
30.WW-3 Shri Hari Shanker tender his affidavit in evidence as Ex.WW3/1. He stated that he was 1/3rd owner in M/s Naval Kishore Ashok Kumar and that claimant was also 1/3rd owner in the said firm and further that the claimant was removed as a partner from financial year 1985-86.
31.In his cross examination the witness deposed that the affidavit was prepared at Sambalgarh Courts and he had read over the contents of the affidavit. He further deposed that he had known the claimant for the last about 20 years and he also knew his deceased father namely Shri Chironji Lal. He said that since the name of his son was Naval Kishore, Shri Chironji Lal had named the firm as Nawal Kishore Ashok Kumar. He said that he did not know as to on which date the firm came in existence, but said that it came into existence 18-20 years ago. He said that Shri Chironji Lal was also a partner in the said firm along with him , Ashok Kumar and Naval Kishore. He said that as far as he knew there were three owners of the said firm namely Chironji Lal, Hari Shanker and Ashok Kumar. He further deposed that at the time of formation of the firm documents such as partnership deed were executed but he LIR No. 8/2023 Page No. 16 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
was not aware as to where those documents were lying. He said that Shri Naval Kishore was not working in the firm since the beginning as he was doing service. He said that Naval Kishore was not owner of the said firm and the owner was Shri. Chironji Lal. He said that Shri Naval Kishore was not a partner in the said firm.
32.He has further deposed that in para 2 of his affidavit it might be written that Shri Naval Kishore was one of the partners to the extent of 1/3rd share, however, his statement to the effect that Shri Naval Kishore was not partner was also correct. He further deposed that he was not aware as to on whose instructions the affidavit Ex.WW3/A was got prepared. As far as he remembered he might have gone through the contents of the affidavit as he said that he never signed any paper without going through its contents. He did not remember as to when the affidavit Ex.WW3/A was prepared and he could not assign the reason as to why he did not remember about the affidavit. He said that the firm remain in existence for about 1 year to 1½ year. He voluntarily stated that he joined the partnership of the firm on the request of Shri Chironji Lal and on the dissolution of the firm he gave the accounts to Shri Chironji Lal. He said that as far as he remembered, the firm was closed about 15 years ago. He said that he was not aware if the said firm was still running. He said that after the firm was closed for a few years he was still in service at three places and thereafter he worked as commission agent. He said that he had come to depose as a witness at the instance of Shri Naval LIR No. 8/2023 Page No. 17 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
Kishore. He said that Shri Naval Kishore had not briefed him about his statement as well as his case. He said that he had not been paid any expenses by Shri Naval Kishore and he had come to depose in court only as he had old relations with Sh. Naval Kishore. He further deposed that earlier Shri Naval Kishore was serving in Jai Parkash Associates. He said that he was not aware if Shri Nawal Kishore was transferred to Delhi. He said that he was writing the account books and ledger of the firm but the same was not with him and he had handed over those registers to Shri Chironji Lal and he did not know what was done to those registers by Sh. Chironji Lal. He said that no document was executed at the time of closure of the firm. He said that all the three partners were partners of equal shares. He said that Mark X and Mark Y were not in his handwriting. He denied the suggestion that Shri Nawal Kishore was the owner of the firm. He denied the suggestion that he was deposing falsely.
33. Thereafter, WE was closed.
PART-G MANAGEMENT EVIDENCE
34.Management, in support of its case examined three witnesses i.e. Shri K.K.Sharma, Accounts Officer (Assistant) as MW-1; Shri P.N.Mishra as MW-2 and Shri R.R.Kumar (earlier posted as Resident Manager- Personnel of Management) Addl. General Manager- Personnel as MW-3.
35. MW-1 Shri K.K.Sharma, Accounts Officer tendered his LIR No. 8/2023 Page No. 18 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
affidavit in evidence as Ex.MW1/A and relied on the documents Ex.MW1/1 to Ex.MW1/4 which are as follows:
Ex.MW1/1 is the leave application applied by MW-1 from 17.06.1984 to 01.07.1984 and sanctioned by the Departmental Head, Shri N.K. Garg.
Ex.MW1/2 is also the leave application applied by MW-1 from 24.06.1983 to 03.07.1983 and sanctioned by Shri N.K.Garg.
Ex.MW1/3 is a memo issued by Shri N.K.Garg to MW-1.
Ex.MW1/4 is service certificate issued to MW-1 by Shri N.K. Garg.
36.MW 1 stated in his affidavit that he was in employment since 1981 and knew the claimant very well, who was firstly Senior Accounts Officer at Rishikesh, thereafter at Tehri and lastly, at Vishkhapatnam. He stated that the claimant was supervising day to day execution of work of accounts clerks and other employees in the accounts department. He stated that the claimant used to grant short leave as well as other leaves to the employees working under him and was performing duties mainly of supervisory and managerial nature and drawing a salary of Rs. 1,675/- per month and hence he was not a workman as per the Act. He stated that all the employees in the accounts department were under direct control of the claimant and as per his recommendations disciplinary actions were taken against junior employees. He stated that the claimant used to issue show cause and memo to LIR No. 8/2023 Page No. 19 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
his subordinates. He stated that there was a training program at Delhi for officers in July, 1985 and the claimant had to participate in the said program being senior officer of the company. He stated that the claimant in the years 1982- 1985, many times granted leave to him, Shri P.N.Mishra and others and also issued show cause notices and memos. He stated that he, Shri P.N.Mishra and 4-5 other employees were under direct control and supervision of the claimant and claimant also used to pass conveyance vouchers of his subordinates. He said that he had applied for leave for the period 17.06.1984 to 01.07.1984 which was sanctioned by the then departmental head who was the claimant. The leave application is Ex.MW1/1. He said that another leave application Ex.MW1/2 was again sanctioned by the claimant for the period 24.06.1983 to 03.07.1983. He stated that as departmental head, the claimant had issued him a memo dated 08.07.1984 which is Ex.MW1/3. He stated that inspite of letters and communications the claimant did not come to Delhi for the training program and thereafter neither reported at Delhi Office nor Vishakhapatnam site which was closed in the year 1990 after completion of work. He said that the company waited for the claimant from 07.07.1985 to September, 1985 and thereafter sent all his legal benefits to him which he received without protest. He further stated that the claimant was running a ration shop in the name of Naval Kishore Ashok Kumar at his native place at Murena, MP since 1984 and the claimant had no case LIR No. 8/2023 Page No. 20 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
whatsoever.
37. During cross examination this witness has deposed that he never worked with Shri Naval Kishore at Rishikesh or Tehri. He further stated that the claimant used to issue memo etc. to him when he went on leave. He produced original documents Ex.MW1/1 and Ex.MW1/2 and photocopies marked X1 and X2. He denied the suggestion that Ex. MW1/1 and Ex. MW1/2 were not signed by claimant and they were subsequently fabricated and for this reason they were not filed either with affidavit or during examination in chief. He stated that five persons were employed in the accounts department at Vishakhapatnam namely the claimant, his officer Mr. Halimuddin, he himself, Shri Rakesh Sharma and Shri Rakesh Jain . He stated that roughly 2000 employees and officers were working in Vishakhapatnam in the relevant years. He further stated that claimant used to issue memos to other employees apart from him as well and claimant was sanctioning authority for giving leaves to the employees. He stated that the originals of Ex.MW1/1 to Ex.MW1/2 were with the company. He denied the suggestion that nobody was working under the claimant or that had no supervisory powers over any other employee. He said that he came to Delhi about 10 years back and was there at Vishakhapatnam for five years after the claimant left. He said that he had no personal knowledge whether claimant was in Delhi or not. He further stated that he had also no personal knowledge as to whether Mr. Garg reported at Delhi or not. He said that he was also not LIR No. 8/2023 Page No. 21 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
aware that the claimant was called to Delhi for attending a training program. He said that he had no knowledge whether anybody other than the claimant was called for the program. He said that the projects of the management were going on at three or four places at the relevant time when the claimant was called for the training. He stated that there were 1500 to 2000 employees at the Vishakhapatnam site and the salary to the workmen were being paid by the contractor. He stated that the claimant used to verify the attendance and payment record of the employees after his verification. He stated that he did not know if the said record was in the custody of the management now. He denied the suggestion that payment verification for approval was never done by the claimant. He said that Mr. Rakesh Jain who was an accountant at the relevant time, was responsible for making payment to senior officers. He denied the suggestion that Shri Rakesh Jain was designated as Sr. Accountant and was supervising the work of the claimant. He deposed that there was no accounts manager in Vishakhapatnam. He stated that the claimant was directly reporting to Shri N.C Sharma, Director. He stated that the department was handling payments to the labour staff only and the said work was being handled by the claimant. He further deposed that out of the employees in the Accounts Department, Shri Halimuddin and Shri Rakesh Sharma were Accounts Assistant and Sh. Rakesh Jain was Accountant. He said that he had no knowledge if Delhi office had sent the terminal benefit to the claimant or not. He said that he LIR No. 8/2023 Page No. 22 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
had never visited Muraina (MP) at his address at any time. He further said that he had no personal knowledge about the claimant running a shop at Muraina. He denied the suggestion that no terminal benefits were paid to the claimant. He denied the suggestion that the claimant was an ordinary clerk and had no supervisory duties. He denied the suggestion that he had filed a false affidavit.
38.MW-2 Shri P.N.Mishra tendered in evidence in affidavit Ex. MW2/A and also relied upon the documents i.e. the leave application of the workman duly sanctioned by the workman and the memo given by the workman (Shri N.K.Garg) to him. Leave application which was sanctioned by the claimant (Shri N.K.Garg) is Ex. MW2/1 the memo given to him by the claimant (Shri N.K.Garg) is Ex. MW2/2.
39. He also deposed on similar lines as MW1.
40.During cross examination this witness has deposed that the claimant was doing all managerial work in the accounts department and had very good administration. He denied the suggestion that the claimant had no supervisory or managerial duties and he was only a clerk. He said that he had never been to Muraina and he had no personal knowledge of the claimant running a ration shop at Muraina. He said that in July, 1995, he was in Vishakapatnam. He said that since the claimant was their boss, he had the knowledge regarding his going for training program to Delhi. He said that he had no personal knowledge if the claimant reached Delhi and reported to the Head Office or not. He denied the LIR No. 8/2023 Page No. 23 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
suggestion that no terminal benefits were paid or offered to the claimant. He further denied the suggestion that his affidavit was false or that he was deposing falsely.
41.MW-3 Shri R.R Kumar tendered his affidavit in evidence as Ex.MW-3/A and he also deposed on similar lines as MW1.
42.During cross examination he deposed that he joined the management in the year 1997. He stated that the claimant never worked under his control and that the claimant was having power of supervision & control since the date of his appointment. He said that the claimant left the job of the management in September 1985. He denied the suggestion that the claimant was not permitted to join the duty by the management. He said that the claimant was called for training to Delhi from Vishakhapattanam. He further said that the claimant left Vishakhapattanam but he neither came to join the training nor reported back at Vishakhapattanam. He denied the suggestion that the workman reported for duty at Delhi office on 15.7.1985 but was not permitted to join the duty. He denied the suggestion that bills of the claimant were not reimbursed by the management. He denied the suggestion that he was deposing falsely.
Thereafter, M.E. was closed.
43.Vide award dated 04.07.2009, Ld. Predecessor Judge had given finding that this Court had no territorial jurisdiction to deal with this matter and decided the additional issue regarding Jurisdiction framed on 17.05.1995 in favour of LIR No. 8/2023 Page No. 24 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
the management and against the workman.
Ld. Predecessor had given the finding on the other two issues framed on 04.09.1993 which is as under :
"In view of the findings on above issues, both the issues get redundant. The claimant is accordingly held not entitled to any relief. Reference is answered accordingly."
44.The workman challenged the impugned award before Hon'ble High Court wherein vide order dated 31.10.2022 it was held as under :
".....this Court is of the considered view that part of cause of action had arisen in Delhi and hence Government of NCT of Delhi is well within its power under Section 10 of the ID Act to refer the dispute for adjudication to the learned Labour Court. Hence the present Writ Petition succeeds, and the impugned Award is hereby set aside.
Since the learned Labour Court has not decided the terms of reference, the present matter is remanded back to the learned Labour Court for deciding the terms of reference in terms of reference in accordance with law......"
PART H DECISION AND REASONS
45.After considering the claim, reply, documents and the evidence led on record and also the submissions made by the parties the decision of the court along with reasons on the issues is as follows:-
Issue No.1. Whether the petitioner is not a workman within the meaning of Section 2(s) of the I.D.Act?
46. To determine the above stated issue it is important to see the definition of workman as defined under Section 2(s) of the Act. Section 2(s) of the Act defines workman as:
"workman" means any person (including an LIR No. 8/2023 Page No. 25 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person--
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. "
The Hon'ble Supreme Court in the case of S.K.Maini Vs. Carona Sahu Co. Ltd. (1994 AIR 1824) has held that "Whether or not an employee is a workman under Section 2(s) of the Act is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any straitjacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases....."
"the determinative factor is the main duties of the employee concerned and not some works LIR No. 8/2023 Page No. 26 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
incidentally done. In other words, what is, in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory works. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is done by the employee incidentally or only a small fraction of working time is devoted to some supervisory work, the employee will come within the purview of Section 2(s) of the Act."
In the present matter, the claimant has stated that he was appointed as a clerk with the management on 14.01.1978 and he was primarily doing clerical work throughout his tenure with the management. He has stated that he had to complete the salary register and make payment of salary to the concerned workmen. He has stated that he had to check the muster rolls fortnightly to see whether the amount was correctly calculated and entered in the muster. He has stated that he was never holding any supervisory post and was under the control and supervision of senior accountant who was under accounts officer and thereafter the Chief of Finance and Accounts. However, the management has denied the stand of the claimant that he was a workman as defined in the Act as stated that he was employed as a temporary accountant and performing duties essentially of supervisory nature. It is stated that claimant used to do work of supervising of other clerks working in the accounts department and used to direct them in their day to day execution of work. It is stated that leave to the clerical staff working in the accounts department used to be granted on LIR No. 8/2023 Page No. 27 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd. recommendations of the claimant. It is further stated that claimant used to grant short leave to other employees working in the accounts department. It is further stated that action against the employees working in the accounts department used to be taken, if recommended by the claimant. It is stated that the duties performed by the claimant were essentially of supervisory nature for which he was drawing salary in the sum of Rs.1600/- per month approx. During the course of final arguments, AR for the management has relied on the judgment in case of Triloki Nath Choudhary Vs Shri Hari Overseas (P) Ltd. (Neutral citation 2019: DHC 2388) to state that person working as an accountant is not a workman. However, the Supreme Court in the case of South Indian Bank Ltd. Vs. AR Chacko (1964 AIR 1522) has observed that :
"...this brings us to the last objection that on appointment as accountant, the respondent Chacko ceased to be a workman. Admittedly, the mere fact that he was designated as accountant would not take him out of the category of workman...
"...the Labour Court appears to have taken proper note of this distinction between accountants who are really officers and accountants who are merely senior clerks with supervisory duties and on a consideration of the evidence on the record as regards the duties actually performed by the respondent Chacko, has come to the conclusion that he was merely a senior clerk, doing mainly clerical duties and going by the designation of accountant and was in reality a workman as defined in the Industrial Disputes Act and doing an element of supervisory work..."
Even though the above stated judgment is in reference to specifically an accountant working in a Bank, however, the principle for deciding the nature of duties of such accountant to LIR No. 8/2023 Page No. 28 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd. determine whether he is a workman or not, have been elaborately discussed.
Hence, in order to ascertain whether the claimant in the present case was a workman or not, it is important to go through the evidence led by the parties.
During cross examination of WW-1 he has stated that his main duties were making the salary accounts and distributing the same to the employees. He has denied that he was doing any supervisory duties. He denied the suggestion that he used to recommend the leaves of staff of accounts department. MW-1 in his affidavit Ex.MW1/A stated that the claimant was a senior accounts officer at Rishikesh and thereafter at Tehri and Vishakhapatnam. He has stated that claimant was supervising day to day execution work of accounts clerks and other employees in the accounts department. He further stated that claimant used to grant short leaves and other leaves to the employees working under him and was performing duties mainly of supervisory and managerial nature. He stated that all the employees in the accounts department were under direct control of the claimant and as per his recommendations disciplinary actions were taken against junior employees. It is stated that claimant used to issue show cause and memo to his subordinates. He stated that the claimant in the years 1982 - 1985, many times granted him, Shri P.N.Mishra and others short leaves, full leaves and also issued show cause and memo to employees working under him. He stated that he and 4-5 other employees were under direct control and supervision of the claimant and when he had applied for leave for the period 17.06.1984 to 1.7.1984 vide Ex.MW1/1, and 24.06.1983 to 03.07.1983 vide Ex.MW1/2, the LIR No. 8/2023 Page No. 29 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd. same was sanctioned by the then departmental head, who was the claimant. He stated that as departmental head, the claimant had issued him a memo dated 08.07.1984 Ex.MW1/3 and had also issued him a service certificate dated 06.10.1987 Ex.MW1/4. During his cross examination, he denied the suggestion that Ex.MW1/1 and Ex.MW1/2 were not signed by the claimant and they were subsequently fabricated and that is why they were not filed with his affidavit or during his examination in chief and were produced by him during cross examination. He stated that the original documents were with the company. He stated that claimant used to issue memos to other employees as well as sanctioned their leaves. He denied the suggestion that nobody was working under the claimant or that he had no supervisory powers over other employees. He stated that the claimant used to verify the attendance and payment record of the employees after the same was verified by him. He denied the suggestion that the same was not done by the claimant. He further denied the suggestion that one Mr. Rakesh Jain was designated as Senior Accountant and was supervising the work of the claimant. He said that his department was handling payments to the labor staff and the said work was being handled by the claimant. He denied the suggest that the claimant was an ordinary clerk and had no supervisory duties.
MW-2 has also deposed on similar lines as MW-1 During his cross examination he has stated that claimant was doing all the managerial work in the accounts department and had very good administration. He denied the suggestion that the claimant had no supervisory or managerial duties and was only a clerk.
LIR No. 8/2023 Page No. 30 of 41Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
Similarly MW-3 has stated in his cross examination that the claimant was having power of supervision and control since the date of his appointment.
On perusal of the documents filed by the workman in support of his statement of claim, it is seen that in Annexure A and in letters sent to the claimant, he has been referred to as accountant/accounts clerk by the management. In the telegram dated 09.07.1985 sent to the claimant for attending training and in the traveling bill, the claimant has been mentioned as accountant. Further in the documents Ex. MW1/1, MW1/2, MW1/3, MW2/1 and MW2/2 the designation of the claimant has been mentioned as Departmental Head, Accounts Department. However, on the basis of just the designation mentioned in the documents, it is not possible to assess whether the claimant was a workman as per the definition given in the Act. To understand the nature of duties of the claimant as stated by the claimant, the statement of claim and rejoinder alongwith other documents have been perused. In the statement of claim, the claimant has stated that he was initially appointed in the company as clerk and was posted at Rishikesh. He has stated that he was a mere workman as his main duty was clerical in nature. He has further stated that he had to check the statements and records of other account clerks and thus was only a senior accounts clerk. He has stated that he had no right to supervise the work nor he had the powers to appoint or dismiss any clerk. He has further stated that he had no right to sanction casual leave of any employee. On denial by the management regarding the status of claimant as workman in their written statement, the claimant has explained in his rejoinder that he had to complete the salary register and make payment of salary to concerned workmen and LIR No. 8/2023 Page No. 31 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd. that he used to check the musters fortnightly to see whether the amount was correctly calculated and entered in the muster. He stated that he was never holding any supervisory post and was himself under the control and supervision of senior accountant who was under Accounts Officer and who was thereafter under Chief of Finance and Accounts who controlled the work. The management in their written statement has stated that the claimant was essentially performing duties of supervisory nature. In para 2 of the written statement, the management has admitted that the claimant was employed by them as a temporary accounts clerk and was posted at Tehri. They have denied that the nature of duties being performed by the claimant were clerical in nature and that he had no right to supervise the work of others working under him. They have said that the claimant was performing duties essentially of supervisory nature as he used to supervise the work of other clerks working in the accounts department and used to direct them in the day to day execution of work. It is stated that he also used to recommend granting of leave to the clerical staff working in the accounts department and also used to grant short leave to other employees. It is stated that he would also recommend if any action was to be taken against any employee. It is further stated in para 6 of the written statement that the management would give a detailed list of duties which were being performed by the claimant at the appropriate time. On perusal of the file it is seen that the said detailed list of duties was never provided during the course of the trial. The witnesses produced by the management have stated that the claimant had supervisory powers, he used to sanction leaves, he used to issue memos and he did look at the LIR No. 8/2023 Page No. 32 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd. overall work of juniors working under him, but nowhere has it been stated as to what was the actual work being done by the claimant. In order to reach a conclusion, the court has also taken support of judgment of Hon'ble Delhi High Court in Mahavir Prasad Vs M/s Kanhiya Lal Sri Ram passed in W.P.(C) 8027/2014 dated 25.10.2018 in which the Hon'ble High Court has affirmed the view taken by the Labour Court that the claimant in that case who was working as a Head Munim was held to be a workman. Though the nature of work performed by the claimant in the present case has not been explained by him in detail, the same has also not been explained by the management. It is clear that the claimant was employed as a clerk in the management and may be gradually he was given supervisory powers to certain extent. After going through the entire evidence this court is of the view that the substantial work performed by the claimant was clerical in nature and in addition he may have also performed some supervisory work. Hence, the claimant is held to be a workman within the meaning of Section 2 (s) of the Act.
Hence, this issue is answered in favor of the claimant. Issue No.2. As in terms of reference- Whether the termination of services of Shri Naval Kishore Garg is illegal and /or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?
47. There is no doubt about the fact that the services of the claimant were terminated by the management vide letter dated 03.09.1985, the termination being in effect from 15.07.1985. The reason given by the management for termination of services of LIR No. 8/2023 Page No. 33 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd. the claimant was that he had remained unauthorisedly absent from duty for more than eight continuous days, thus having lost the lien on the job under Clause 14 (XI) of the Standing Orders of the company. The management has stated that the claimant was asked to report to Delhi office on or before 15.07.1985 for a training program vide telex dated 01.07.1985. It is stated that since the claimant did not report for duty in response to the said telex, he was again informed to report at Delhi Office vide letter dated 09.07.1985. It is further stated that for the said purpose advance of Rs.2000/- towards TA/DA was allowed to the claimant but he failed to report till 15.07.1985 and hence remained unauthorisedly absent from duties. The claimant, however, has stated in his rejoinder in para 2 that he did report to the office on 15.07.1985 and submitted his joining report to the Head Office. He has stated that he stayed in Delhi for about 4 days and met higher officials in the company and he was told that he would be given orders for posting after discussion with the Director but no order was given to him. He has stated that the Chairman of the company assured him that his posting order will be conveyed to him by the end of October, 1985 at his residence and hence he returned to his native place in Murena, MP. The management has stated that the submission of the claimant that he met higher officials of the company and stayed in Delhi for four days are only made up stories. However, no witness has been examined by the management to counter the statement made by the claimant. In fact, the claimant seems to have submitted one traveling bill for the period from 12.07.1985 to 18.07.1985 for which no question was put to him and the same, hence stands admitted. Further the management has stated that LIR No. 8/2023 Page No. 34 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd. since the claimant failed to report for duty on 15.07.1985, his name was removed from the rolls of the company as per the Standing Orders of the company as it appeared that claimant had decided to abandon the job. The AR for the workman has stated that even if the claimant was terminated from services as per the Standing Orders of the company, the management was bound by the principles of natural justice to hold a proper inquiry before terminating services of the claimant. The AR for the workman has relied on the judgment of Hon'ble Supreme Court in the case of D.K.Yadav Vs. J.M.A.Industries Ltd. (1993 SCC (L&S) 723) to emphasize the same. The AR for the management has countered the argument stating that the said judgment is of the year 1993 and applicable only thereafter and hence was not applicable to the management when the services of the claimant were terminated in the year 1985. In the opinion of the court, the following of principles of natural justice need no support from any judgment. The same are embedded in our legal and judicial system and must be followed irrespective of any situation. Thus, the Hon'ble Supreme Court in the above-mentioned case has but reminded us of the need to follow the principles of natural justice. Hence, the submission of the claimant that he was removed illegally without giving him sufficient opportunity to put forward his case is held to be correct. His services were terminated in September from a back date in July, quite arbitrarily. Hence, this court is of the opinion that the claimant was terminated from services illegally and/or unjustifiably.
Thus, this issue is answered in favor of the claimant.
Relief.
LIR No. 8/2023 Page No. 35 of 41Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
48. Since it has been held above that the present case is clearly a case of illegal termination of services of the claimant/workman by the management, the Court has to decide as to what relief is the claimant entitled to.
49. As far as relief part is concerned, the workman has made a prayer in statement of claim that the management may be directed to declare the order of termination dated 03.09.1985 as illegal and void and direction may be given to the management for reinstating the claimant on his previous post with arrears of wages, allowances, bonus etc. along with payment of cost. However, during the course of submissions being made by the parties, the workman has stated that he is well past the age for joining back the company for work and hence, he has not pressed for relief of reinstatement but has only pressed that he may be duly monetarily compensated in the present matter.
50. In order to decide the relief to be granted to the claimant, this court has again gone through the file and the evidence to determine the amount of compensation that may be granted to the claimant. Even though the claimant has stated in his cross examination that from July, 1985 to October, 1994 he had not done any work and also could not find work even after trying, he has himself produced witnesses who have stated that the claimant was a partner in the partnership by the name of M/s Naval Kishore Ashok Kumar. WW-2 has stated that when he became partner in a firm in the year 1984, the firm was newly constituted and its two partners were Shri Hari Shanker and the claimant and they all were partners to the extent of one third each. He has stated that all the partners could sit at any time as LIR No. 8/2023 Page No. 36 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd. per mutual agreement and the shop used to remain open from 8.00 am to 5.00 pm. He has voluntarily stated that the firm was closed in the year 1986 or 1987 when the Government closed down the operation of commission agents but no document was executed in writing for the same. He denied the suggestion that the firm was still running and that the claimant was working in the said firm since the beginning till now. Similarly WW-3 has stated that the claimant was a partner in the said firm but has stated that the claimant was not working in the said firm since the beginning as he was doing service. He has also stated that the firm remained in existence for about 1 or 1½ year and he said that if the firm was still running, he did not know. He said that as far as he remembered, the firm was closed about 15 years back. He has further stated that father of claimant was also owner/ partner in the said firm. All the three witnesses have made slightly different statements regarding the number of persons who were partners in the said Firm but there is no disputing the fact that there was a firm by the name of M/s Naval Kishore Ashok Kumar which was opened in the year 1985/1985 and claimant was a partner in the said firm.
i. The Court, in order to decide the issue of relief, has to see whether the claimant has placed on record any document to show as to what efforts he had made to get another job on his being unemployed. Just merely saying that he had been unemployed since July 1985 to October 1994 and that he could not get job despite best efforts, the same would not suffice as no proof has been filed of the same. Rather proof has come to the LIR No. 8/2023 Page No. 37 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
contradictory by the witnesses of the claimant himself that he was a partner in the firm M/s Naval Kishore Ashok Kumar for the period ending 1985. Further vide statement given by the claimant in the court on 18.05.1982 on the question of interim relief, he has stated on Oath that he remained partner in a firm M/s Naval Kishore Ashok Kumar for the financial year Diwali Year 1984 - 85 and that he had no connection with this firm. On the same date, MW-1 Shri Prakash Chand stated that in May, 1991 he had visited the shop of the claimant and had seen the claimant working in the said firm; he had obtained copies of the bills from some customers marked as Mark X and Mark Y;
he had taken photograph of the claimant in his village; and he denied the suggestion that he had not seen the claimant working at the firm. The claimant has admitted his photograph which was shown by MW-1 in the court. No question was asked regarding bills marked as Mark X and Mark Y, hence the same are taken to be admitted by the claimant. Thus from the above discussion, it is clear that there was a firm in the name of M/s Naval Kishore Ashok Kumar in which claimant was a partner which was opened in the year 1985- 86 (as stated by WW-2 and WW-3 in their affidavit) and date of dissolution of the said firm (if the same has been actually dissolved) is not known and also no deed of dissolution of LIR No. 8/2023 Page No. 38 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
partnership has been submitted. Further the claimant has also not denied or questioned the issuance of bills mark X and Y in which the date of registration of the firm is apparently 09.11.1984. Irrespective of the fact of date of opening of the firm, it is evident that the firm was running and the claimant was a partner in the year 1985-86 and also in the year 1991. Thus, the stand of the claimant that he was without work is incorrect. However, there is no way to assess whether the claimant had been earning much more than what he was getting from the employer/management. He had denied the said suggestion in his cross examination but there is no other record filed to prove the same. In any case, the stand of the claimant that he was not working and not earning post his termination from work by the management, is untrue. In view of the above discussed circumstances, the Court has to decide the amount of compensation it can award to the claimant.
ii. On this point, this court finds support from the judgment of the Hon'ble Supreme Court of India in case titled as Rajasthan State Road Transport Corporation, Jaipur v Phool Chand (D) Through Lrs.1, in which it was held that:
"It is necessary for the workman in such cases to 1 Civil Appeal No.1756 of 2010 (date of decision 20.09.2018) LIR No. 8/2023 Page No. 39 of 41 Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee."
The workman, in support of his case for compensation, has relied on the judgment of the Hon'ble High Court in Triloki v. Ashok Hotel 2023 LLR 127 to state that while awarding compensation, the courts must keep in mind factors such as manner and method of appointment, nature of employment and length of service. It is further stated that in the said case the Court awarded a compensation in the sum of Rs. 10,00,000/- to the workman when termination from work had taken place around 20 years back.
However, in the said case compensation was awarded in lieu of reinstatement and alternate employment of the workman has not been discussed.
iii. Therefore, keeping in view all these facts-
a) That the workman was terminated from work illegally and/or unjustifiably;
b) That the workman had worked for almost 6-7 years with the management;
c) That the workman was getting good salary and regular increments during his employment;
d) That workman himself was working in the year 1985- 86 and 1991and maybe in between and after that also;
LIR No. 8/2023 Page No. 40 of 41Naval Kishore Garg Vs. Jai Prakash Associates Pvt. Ltd.
e) That no proof of efforts made has been shown by workman, to gain alternate employment;
f) That he was paid his termination from work benefits; and also keeping in view the aforesaid law point, this court deems it appropriate to grant lump sum compensation in the sum of Rs.2,50,000/- (Rupees Two Lakh Fifty Thousand only) to the workman in lieu of his reinstatement and all other consequential benefits. The amount of compensation shall be paid to the workman by the management within one month from the date when this award becomes enforceable failing which the amount shall carry an interest @ 8% p.a. from the date it becomes due (when award becomes enforceable) till the time it is realized.
51. With these observations the statement of claim of the workman filed under the provisions of the Act is disposed off. Reference is answered and disposed off accordingly.
52. Let a copy of the award be sent to the appropriate Government for its publication as per rules. Announced in the Open Court On 31.03.2023 (BHAVNA KALIA) ADDL. DISTRICT & SESSIONS JUDGE, PRESIDING OFFICER LABOUR COURT-V, RACC/DELHI.
LIR No. 8/2023 Page No. 41 of 41