Delhi District Court
Ms. Jahan Ara vs . M/S. Touch Of India Id No. 321/07 on 20 April, 2012
Ms. Jahan Ara Vs. M/s. Touch of India ID No. 321/07
IN THE COURT OF DR. P S MALIK THE PRESIDING OFFICER
IN
8LABOUR COURT XI, KARKARDOOMA COURTS, DELHI
Computer ID No. 02402C0806752007
F.24(1775)/06-Lab./4413 - 17 Dated
Reference No.
28.11.2007
Type of Case Reference Case
Date of Institution 20.12.2007
Evidence concluded on 22.03.2012
Final arguments heard 27.03.2012
Date of Award 20.04.2012
WORKER Vs. MANAGEMENT
Ms. Jahan Ara W/o Sh. Noor M/s. Touch Of India, 2151/9C/1,
Aalam, C/o Bhartiya Engineering New Patel Nagar, New Delhi - 110
Tatha General Mazdoor Union 008.
(Regd.), Bharat Mill Charkhi Gate,
Plot No. I, Nea Block - D,
Karampura, New Delhi - 110 015.
PRESENT:
None for the parties.
AWARD :
1.The appropriate Government sent a reference no. F.24(1775)/06Lab./4413 - 17 Dated 28.11.2007 to this court in relation to the illegal dismissal of the services of the worker Ms. Jahan Ara by the Management M/s. Touch of India. The reference specifically pointed out as follows : "Whether services of Smt. Jahan Ara W/o Noor Aalam were terminated illegally and /or unjustifiably by the Management and if so, to what sum of money as monetary relief along with other consequential benefits in terms of existing Laws / Government Notifications and to what other relief was she entitled and what directions were necessary in that respect?" AWARD Page 1 of 7
Ms. Jahan Ara Vs. M/s. Touch of India ID No. 321/07
2. As per claim, the worker Jahan Ara claimed to have been working with the Management M/s. Touch of India for the last 10 years and she pleaded her last drawn salary as Rs.3,000/ p.m. This worker Jahan Ara alleged the Management M/s. Touch of India that it kept her services unregistered for about 10 years and when there was a general checking by the ESI Department in the year 2003, she was registered as a worker of the Management company. The worker pleaded to have some important work for which she had to remain away from her work from 01.02.2006 to 28.02.2006. It is her case that when she tried to resume her duties, she was not allowed to do the same. The worker raised an industrial dispute on this point and demanded her reinstatement with full back wages with other consequential benefits.
3. A reply / written statement was filed on behalf of the Management alleging that the worker had abstained (the Management must have meant abandoned) her services w.e.f. 12.12.2005. It is the case of the Management that she took an advance of Rs.10,000/ and did not refund the same. Her last drawn salary was also denied by the Management and it admitted that her last drawn salary was Rs.3736/ p.m. The rest of the claim was denied on merits.
4. In this background of the pleadings of the parties, this court vide its orders dated 27.09.2011 framed the following issues :
1. Whether the worker has willfully abandoned her duties, if yes, from what date and period? OPM.
2. Whether the services of the worker were terminated illegally and / or unjustifiably by the Management? OPW.
3. Relief, if any.
5. The worker examined herself as WW1 through evidence affidavit Ex. WW1/A and almost reiterated her claim. During her cross - examination the Management put three documents Ex. WW1/Mx1, Ex. WW1/Mx3 and Ex. WW1/Mx5. These are three notices which the Management contended to have served upon the worker. The worker has denied, during her cross - examination, receipt of such notices. Thereafter the Management put to AWARD Page 2 of 7 Ms. Jahan Ara Vs. M/s. Touch of India ID No. 321/07 her Ex. WW1/M7 which is a document showing an advance of Rs.10,000/ to the worker. Ex. WW1/Mx8 was a voucher showing the receipt of payment of this amount to the worker.
6. The Management has also examined one Sh. Praveen Kumar Sethi as MW1. He relied upon a document Ex. MW1/1 which is a photocopy of ESIC registration. He relied upon other documents from Ex. WW1/Mx1 to Ex. WW1/Mx8. However the document Ex. MW1/1 was objected to by the AR of the worker as it was a photocopy.
ISSUE NO. 1 :
7. In this issue this court has to adjudicate upon the factum if the worker has willfully abandoned her duties, if yes, from what date and period.
8. It is the case of the Management that this worker stopped attending her work after 12.12.2005 and it is its case that after 12.12.2005 the worker did never turn up to resume her duties. The entire evidence affidavit of the MW1 did not speak even a single word regarding the appointment of the worker in the Management's establishment. Although, there was a small reference in para 1 of reply on merits that this worker was appointed on 01.01.2004 with initial wages of Rs.2784/ p.m. Yet there is no any such averment on the point of her last drawn salary in the affidavit of MW1.
9. Once the relationship between the Management and the worker existing in the nature of 'an employer and an employee' is admitted, then the burden is shifted to the Management and this shift of burden is in accordance with the language and intention of Section 106 the Indian Evidence Act. The point of appointment, the point of last drawn wages, the point of quantum of increment and the point of termination of services are to be brought on record by the Management. These are within the specific knowledge and possession of the Management as it is envisaged U/S 106 of the Indian Evidence Act. The Management has withheld all these informations from this court. It has nowhere deposed regarding the date of appointment and the salary etc. of the worker. However, some pleadings were made in the written statement but the Management has not produced any letter of appointment to the satisfaction of this court. AWARD Page 3 of 7
Ms. Jahan Ara Vs. M/s. Touch of India ID No. 321/07
10. During the course of cross - examination a document Ex. MW1/W1x was put to the Management's witness by the worker and the MW1 stated this document as a forged document. He specifically denied the provisions of para 7 of this appointment letter where the provision of enquiry was made.
11. It has come on record that the Management did never hold any enquiry enquiring into the reasons for non joining of the worker at her work place. It was repeatedly contended by the Management that three notices i.e. Ex. WW1/Mx1, Ex. WW1/Mx3 and Ex. WW1/Mx5 were issued to the worker and in the last notice Ex. WW1/Mx5 it was specifically mentioned that if the worker failed to join her duties, it would be deemed as an abandonment of the services.
12. But the view of this court is somewhat different as the law laid down by the Hon'ble High Court in Shakuntala's Export House (P) Ltd. Vs. Secretary (Labour) and Ors. MANU/DE/0541/2005 and by the Hon'ble Supreme Court in Punjab and Sind Bank Vs. Sakattar Singh (2001) 1 SCC 214 mandates that if a workman abandoned his / her job, then the Management is obliged under the law to hold an enquiry enquiring into those circumstances which prevented him / her to resume the duty. It is only after such an enquiry the Management could inflict a punishment of dismissal etc. But in the present case, the Management had not held any enquiry. It merely issued three notices Ex. WW1/Mx1, Ex. WW1/Mx3 and Ex. WW1/Mx5 to her. Against these three notices only two postal receipts are there. These notices were allegedly sent through courier.
13. This court is of the view that this Management is not a legislative body which could enact or lay down its procedures as per its own convenience. In view of this court, this stand of the Management that it did not hold an enquiry and had intimated its intention in the aforesaid notices is quite illegal and arbitrary. It is against the law laid down by the Hon'ble Delhi High court in case Shakuntala's Export House (P) Ltd. (SUPRA). Here the Management appears to be getting benefited for its own wrongs. In a court of law and specially in the present adjudication, it cannot be allowed to prevail. Hence this court is of the view that the Management has not been able to show that the worker had abandoned her services. This issue is hence held to be "Not AWARD Page 4 of 7 Ms. Jahan Ara Vs. M/s. Touch of India ID No. 321/07 Proved" by the Management and is decided accordingly. ISSUE NO. 2 :
14. In this issue this court has to adjudicate upon the factum if the services of the worker were terminated illegally and / or unjustifiably by the Management.
15. The worker has clearly shown her relationship with the Management in the nature of "an employer and an employee". Her last drawn wages by way of admission of the Management, are found to be Rs.3736/ p.m.
16. On the point of termination of the services of the worker, the Management claims it to be 12.12.2005 while the worker says that she worked there till 31.01.2006. On 01.02.2006 she proceeded on leave for the whole of the month of February and in March, 2006 she was not allowed to resume her duties. The worker could not produce any specific material on this point to show that she worked there till 31.01.2006. Hence by way of admission of the Management, this court is inclined to presume that she worked there till 12.12.2005.
17. This court has already held in the previous issue that if according to the version of the Management, the worker stopped attending her duties, then the Management ought to have held an enquiry. But such an enquiry was never held. It shows that the Management had not fulfilled its duties. There was no reason for this worker to have left her services without any dispute.
18. Hence this court is inclined to infer that this was a termination of the services of the worker by the Management and it was well covered within the definition of "retrenchment" U/S 2 (oo) of the Industrial Disputes Act.
19. It has nowhere been the case of the Management that the services of the worker were retrenched in accordance with the Section 25 F of the Industrial Disputes Act.
20. The Hon'ble Supreme Court in case Anoop Sharma Vs. Executive Engineer, Public Heath Division No. 1 Panipat (Haryana) (2010) 5 Supreme Court Cases 497 has held that : AWARD Page 5 of 7 Ms. Jahan Ara Vs. M/s. Touch of India ID No. 321/07 "We have no hesitation to hold that termination of service of an employee by way of retrenchment without complying with the requirement of giving one month's notice or pay in lieu thereof and compensation in terms of Section 25 F
(a) and (b) has the effect of rendering the action of employer as nullity and the employee is entitled to continue in employment as if his service was not terminated."
21. In Krishna Bahadur Vs. Puran Theater, 2004 (103) FLR 146 SC., the Hon'ble Court held that the requirement of Section 25 F (b) the Industrial Disputes Act was imperative. The contravention thereof would render the retrenchment. In the present case there is violation of not only Section 25 F (a) & (b) the Industrial Disputes Act but of Rule 77 the Industrial Disputes Rules also.
22. Following the aforesaid laws laid down by the Hon'ble Supreme Court of India in Anoop Sharma (Supra) and Krishna Bahadur (Supra) this court also holds that the retrenchment of the worker in the present matter was wrong. The impugned retrenchment of the worker by the Management was legally defective and bad in law. This issue is hence decided accordingly.
RELIEF :
23. Because of the Management's illegal action of termination of the worker's services, the worker has suffered a wrongful loss and the same has to be reimbursed to her. She is found entitled to her reinstatement in service. She be reinstated accordingly.
24. The Management has placed on record a document Ex. WW1/Mx8 thereby contending that an amount of Rs.10,000/ was given to this worker, but it has nowhere proved through any expert evidence that this document bears the signatures of the worker. The signature of the worker is there within the area of the revenue stamp itself. It is not as per the expected practice that half of the signatures are on the revenue stamp and the remaining half on the document. Such signed revenue stamp can be used as per convenience of the Management at any document it likes. Therefore, this court does not find it proper to rely upon this document and deduct any relief of the worker.
25. The worker has deposed before the court that she has been unemployed during this period of this industrial dispute. Therefore, this AWARD Page 6 of 7 Ms. Jahan Ara Vs. M/s. Touch of India ID No. 321/07 court further allows back wages @ 40% of the last drawn wages to be given to the worker from the date of her retrenchment i.e. 12.12.2005 till the date of this order. The amount be given to this worker accordingly.
26. Reference is answered accordingly.
27. A copy of this award be sent to the office of the concerned Dy. Labour Commissioner for necessary action.
28. The original documents be returned against acknowledgment back to the party which has filed them and further subject to the filing of the certified copies of the same.
29. File be consigned to the Record Room after completing due formalities. ANNOUNCED IN THE OPEN COURT ON 20.04.2012.
AWARD Page 7 of 7