Delhi District Court
Through vs M/S. Malbro Appliances Pvt. Ltd on 18 November, 2021
Shri Rajesh Kumar Tiwari Vs. M/s Malbro Appliances Pvt. Ltd.
LIR No. 9752/2016
IN THE COURT OF SHRI TARUN YOGESH
PRESIDING OFFICER : LABOUR COURT - VIII
ROUSE AVENUE DISTRICT COURTS : NEW DELHI
LIR No: 9752/16
CNR No. DLCT13-013214-2016
In the matter of
Shri Rajesh Kumar Tiwari
S/o Shri Prabha Shankar Tiwari
R/o H. No. 89, Gali No.5, Rajdhani Enclave,
Near Ram Park Extension, Loni,
Ghaziabad, U.P.
Through
Shri Jagdish Giri (General Secretary)
Dalit Mazdoor Vikas Sanghathan,
C.B. 6, Ring Road, Naraina, New Delhi.
....WORKMAN
VERSUS
M/s. Malbro Appliances Pvt. Ltd.
Through
Shri Rajiv Malhotra(M.D.),
K-91, Udyog Nagar, Industrial Area,
Delhi-110041.
....MANAGEMENT
Date of institution of the case : 05.11.2016
Date of passing the Award : 18.11.2021
AWARD
1. Following dispute between workman and management has
been referred to the Court for adjudication by Deputy Labour
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Shri Rajesh Kumar Tiwari Vs. M/s Malbro Appliances Pvt. Ltd.
LIR No. 9752/2016
Commissioner, West District, Delhi vide Order No.
F.3(246)/15/Ref./WD/Lab./951 dated 05.10.2016:
"Whether the services of workman Shri
Rajesh Kumar Tiwari S/o Shri Prabha
Shankar Tiwari have been terminated
illegally and/ or unjustifiably by the
management; if so, to what relief is he
entitled and what directions are necessary
in this respect?"
2. 'Statement of claim' was filed pursuant to notice of
reference wherein Shri Rajesh Kumar Tiwari (hereinafter referred
as workman) has averred that he had been working as Accountant
sincerely, honestly and diligently without any complaint during his
entire service tenure and his last drawn salary was Rs. 27,676/. It
is further submitted that service benefits including appointment
letter; attendance card; payslip; minimum wages; earned leave;
casual leave; bonus; PF; overtime; medical allowances etc. were
not provided by management despite oral requests and
management being vindictive started harassing him and obtained
his signature upon blank documents and vouchers. Monthly wage
of May 2015 was also withheld by management and his services
were eventually terminated on 21.05.2015 without notice,
retrenchment compensation and enquiry.
3. Legal demand notice dated 30.05.2015 calling upon
management to reinstate him in service with back wages was not
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Shri Rajesh Kumar Tiwari Vs. M/s Malbro Appliances Pvt. Ltd.
LIR No. 9752/2016
complied and settlement could not be effected in the absence of
management before Conciliation Officer. It is also averred that
workman has remained unemployed after his services were
illegally terminated and is therefore entitled to be reinstated in
service with all benefits including back wages.
4. Respondent M/s Malbro Appliances Pvt. Ltd. has filed written
statement contesting the claim inter alia upon following grounds:
i. Statement of claim is misconceived and claimant is guilty of concealing material facts;
ii. Statement of claim is liable to be dismissed as claimant being absentee without information or application for leave has abandoned his employment after taking advance of Rs.25,000/- vide cheque No.198039 dated 24.04.2015 which amount could not be adjusted from his salary and thereafter continued to remain absent w.e.f. 20.05.2015 without applying for leave.
5. Averments in the claim have been denied in corresponding paras of reply on merit and following issues were settled on 10.07.2017 after rejoinder and completion of pleadings:
1. Whether the workman has abandoned his employment with the management w.e.f. 20.05.2017 and, if so, to what effect? ... OPW
2. Whether the workman has taken an advance of Rs. 25,000/- vide cheque no. 198039 dated 24.04.2015 and has not repaid the said amount to the Page 3 of 10 Shri Rajesh Kumar Tiwari Vs. M/s Malbro Appliances Pvt. Ltd.
LIR No. 9752/2016management? If so, to what effect? ...OPM
3. In terms of reference.
4. Relief.
6. Workman in support of his case has tendered his affidavit Ex.WW-1/A in evidence by reiterating his averments in the claim and by relying upon following documents :
(a) Demand notice dated 30.05.2015 Ex.WW-1/1;
(b) Postal receipt Ex.WW-1/2;
(c) Complaint given to Conciliation Officer, Labour Department Ex.WW-1/3;
(d) Bank and payment summary de-exhibited and referred as Mark A;
(e) Copy of bank statement w.e.f. 21.05.2015 to 06.07.2015 Ex.WW-1/5;
(f) Copy of advance account statement de-exhibited and referred as Mark B;
(g) Copy of e-mail dated 31.05.2012 de-exhibited and referred as Mark C
(i) Copy of e-mail dated 11.12.2010 Ex.WW-1/8.
7. His cross-examination and further cross-examination was recorded on 10.07.2019, 05.09.2019 and 30.11.2019.
8. Management on the other hand has examined Shri Sandeep Kumar, Accountant who has tendered his affidavit Ex.MW-1/A in evidence and relied upon documents:
i. Page No. 6 of Bank Statement dated 07.05.2015 Ex.WW-Page 4 of 10
Shri Rajesh Kumar Tiwari Vs. M/s Malbro Appliances Pvt. Ltd.LIR No. 9752/2016
1/M1;
ii. Page No.12 of Bank Statement dated 07.05.2015 Ex.WW-1/M1; and iii. Page No.8 of Bank Statement dated 10.06.2015 Ex.WW- 1/M2.
9. His cross-examination was recorded on 30.11.2019 and matter was thereafter posted for final arguments.
10. Written submissions on behalf of workman was filed on 19.01.2020 and matter was thereafter received in this court by way of transfer on 01.03.2021.
11. Shri Ajay Kumar for workman and Shri Musharraf Ali Khan for management have addressed their submissions by adverting to pleadings, testimony and written arguments in support of their respective contentions.
12. I have minutely perused the record and considered their rival submissions. My issue-wise finding are recorded below:
13. Issue No.1. Whether the workman has abandoned his employment with the management w.e.f. 20.05.2017 (correct date 20.05.2015) and, if so, to what effect? ... OPW
14. Appointment as Accountant on 01.10.2009 and last drawn salary of Rs.27,676/- has not been disputed by management and sole defence against alleged illegal termination is limited to the contention that claimant being absentee without information and without applying for leave has abandoned his employment w.e.f. 20.05.2015.
Page 5 of 10Shri Rajesh Kumar Tiwari Vs. M/s Malbro Appliances Pvt. Ltd.
LIR No. 9752/201615. Claimant, on the other hand, in para 8 of the claim has categorically stated that he has neither abandoned nor absented from service.
16. Demand notice dated 30.05.2015 has been proved as Ex.WW-1/1 wherein management had been called upon to pay a sum of Rs. 3,15,000/- within one month failing which the claimant would be constrained to take legal action. MW-1 Shri Sandeep Kumar during his cross-examination has admitted that demand notice was received by management which was not replied. He has also deposed about notice received from Labour Office in August- September 2015 and denied the suggestion that management did not participate in conciliation proceedings. MW1, nevertheless, neither filed any Authority Letter/Board Resolution in his favour nor filed any document in support of contention regarding abandonment of service.
17. Relevant extract of cross-examination of MW-1 Shri Sandeep Kumar is reproduced below for reference:
"I have not filed any record regarding marking the absence of the workman after 21.05.2015. Even I had not placed any record along with my affidavit. The management is in possession of attendance record of all the employees up to 31.03.2019. I can bring the same. We had kept marking of absence of the workman up to September 2015. We had received the notice Page 6 of 10 Shri Rajesh Kumar Tiwari Vs. M/s Malbro Appliances Pvt. Ltd.LIR No. 9752/2016
from Labour office in August or September 2015. We have not mentioned in the reply to the notice that still we were marking the absence of workman. We have not sent any letter to the workman for asking him to resume his duties except the reply sent to the Labour Commissioner. (Vol. Shri Rajeev Malhotra used to talk telephonically with the workman). It is correct that the management has not mentioned either in the WS or affidavit that Shri Rajeev Malhotra used to talk telephonically with the workman for resuming of his duties.
It is correct that the management has received the demand notice dated 30.05.2015. The management had not replied the demand notice..."
18. It is settled principle of law that abandonment of service has to be inferred from existing facts and circumstances which prove that employee intended to abandon service. To constitute abandonment of service, there must be total or complete giving up of duties so as to indicate an intention not to resume the same. Abandonment or relinquishment of service is always a question of intention and normally such an intention cannot be attributed to an employee without adequate evidence in that behalf. It is a question Page 7 of 10 Shri Rajesh Kumar Tiwari Vs. M/s Malbro Appliances Pvt. Ltd.
LIR No. 9752/2016of fact to be determined in the light of surrounding circumstances of each case and temporary absence is not ordinarily sufficient to constitute abandonment of service as held by the Full Bench of Hon'ble Supreme Court of India in G.T. Lad & Ors. Vs. Chemical & Fibers of India Ltd. (1979) 1 SCC 590.
19. MW-1 Shri Sandeep Kumar in his cross-examination has admitted that demand notice dated 30.05.2015 was not replied and also deposed that no letter was sent to the workman asking him to resume his duties except reply sent to Laour Commissioner which document nonetheless has been neither filed nor proved by management.
Finding : Issue No.1 is therefore decided against the management as mere contention without any positive evidence is not sufficient to prove abandonment or relinquishment of service.
20. Issue No.2: Whether the workman has taken an advance of Rs. 25,000/- vide cheque no. 198039 dated 24.04.2015 and has not repaid the said amount to the management? If so, to what effect?...OPM
21. Claimant Shri Rajesh Kumar Tiwari (WW-1) has deposed to have taken advance of Rs.25,000/- in his cross-examination recorded on 10.07.2019. Copies of page No. 6 and 12 of Bank Statement dated 07.05.2015 and copy of Bank Statement dated 10.06.2015 have been admitted as Ex.WW-1/M1 and Ex.WW-1/M2 and claimant during further cross-examination on 05.09.2019 has also deposed that advance Rs.25,000/- taken on 24.04.2015 was Page 8 of 10 Shri Rajesh Kumar Tiwari Vs. M/s Malbro Appliances Pvt. Ltd.
LIR No. 9752/2016to be deducted in installments of Rs.10,000/- w.e.f. May 2015. Finding : Issue No.2 is therefore decided in favour of management.
22. Issue No.3: Whether the services of workman Shri Rajesh Kumar Tiwari S/o Shri Prabha Shankar Tiwari have been terminated illegally and/ or unjustifiably by the management; if so, to what relief is he entitled and what directions are necessary in this respect?
23. Since abandonment of service could not be proved in the absence of adequate evidence and it is incumbent upon employer to hold an enquiry before treating service as terminated on ground of abandonment of service as held by Hon'ble Bombay High Court in Riaz Ahmed Vs. Munir Ismail Mohd. & Ors. 1991 SCC Online Bom 329 so termination of service without compliance of mandatory conditions of Section 25F of Industrial Dispute Act cannot be justified.
24. Finding: Issue No. 3 is therefore decided against the management RELIEF
25. Reinstatement with full back wages is not automatic and Labour Court can mould the relief by granting lump sum compensation as held in Municipal Council Sujanpur Vs. Surinder Kumar 2006 LLR 662 and Nehru Yuva Kendra Sanghathan Vs. Union of India & Ors. 2000 IV AD (Delhi) 709.
26. Workman Shri Rajesh Kumar Tiwari in his cross-examination Page 9 of 10 Shri Rajesh Kumar Tiwari Vs. M/s Malbro Appliances Pvt. Ltd.
LIR No. 9752/2016has deposed of having tried searching alternate employment in two places but could not get any employment. He, nonetheless, claimed to have applied orally without any application in writing which is ridiculous and is unbelievable that he has remained idle. Further, WW-1 has also deposed that he has no record or instruction w.r.t. overtime and did not lodge any complaint regarding non-payment of bonus and wages as per Minimum Wages Act.
27. I therefore deem it appropriate to grant compensation to the workman instead of reinstatement with full back wages. Statement of claim is accordingly allowed granting lump sum amount of Rs.5,00,000/- considering the length of service and last drawn wage of Rs.27,676/-.
28. Amount of compensation be paid to claimant within two months from the date of award failing which management shall also pay interest @ 6% per annum on the aforesaid amount from the date of award till the date of realization.
29. Reference stands answered in aforesaid terms.
30. Copy of Award be sent to Deputy Labour Commissioner, West District, New Delhi for publication.
31. Case file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT
DATED: 18.11.2021 TARUN Digitally signed by
TARUN YOGESH
YOGESH Date: 2021.11.20
13:19:24 +0530
(TARUN YOGESH)
PRESIDING OFFICER - LABOUR COURT-08
ROUSE AVENUE COURTS: NEW DELHI
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