Delhi District Court
Id 461/12 M/S Somini Surendran vs M/S V.L.C.C. Health Care Ltd. Page 1Of 17 on 30 August, 2013
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IN THE COURT OF SH.S.S.MALHOTRA, PRESIDING OFFICER, LABOUR
COURT NO. IX, KARKARDOOMA COURTS, DELHI
ID NO. 461/12
Unique Case I.D. No. 02402C0348322012
BETWEEN THE WORKLADY
Ms. Somini Surendran w/o Sh. Surendran
House No.59/A, Sultan Garden
Main Nagloi Road, Najafgarh
Delhi110043
AND THE MANAGEMENT OF
M/s VLCC Health Care Limited
F14/39, Model Town II,
New Delhi - 110009
Date of Institution : 01.12.2012
Date on which award reserved : 22.08.2013
Date of passing of award : 30.08.2013
AWARD
1 By this award, I shall dispose off the claim of the worklady as filed by her
directly in this Court against the management under Section 2A of the Industrial
Disputes Act (hereinafter referred to be as 'the I.D. Act') by stating that she has been
serving in the Management since 13.07.94 and her services have been terminated
illegally by the management on 25.05.11 and she has prayed that the management be
directed to reinstate her with full back wages including benefits of continuity of
service and all other consequential benefits.
2 Brief facts as stated by the worklady in her statement of claim, interalia, are
that she had been working with the management since 13.07.1994 and she has
unblemished record of service and even was given regular increment by the
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Management. She was on sanctioned medical leave w.e.f 02.02.11 and was under
the treatment from ESI hospital, Kollam in Kerala which is her home state and after
getting fitness certificate from the ESI she joined the Management on 24.05.11 and
on 25.05.11 at around 3pm Sh. Vijay Luthra, HR Manager of the Management
informed the worklady that her service stands terminated and she was not allowed to
perform her duties from the evening of 25.05.11 itself . She visited the Management
on 26.05.11 and was not allowed to enter the premises as the security guard
informed her that he has already been instructed not to allow her to enter into the
Management Premises and thereafter she send a demand notice to the Management
on 30.05.11 but the Management did not respond to the same and she is unemployed
from date of termination. She searched for an alternate job in Delhi and its
surrounding areas of Haryana, Gurgaon, Noida etc. but she could not get any
alternative employment. Thereafter she filed the conciliation proceedings before the
Conciliation Officer but conciliation could not be possible due to adamant attitude
of the management. The Conciliation Officer issued the communication / failure
report vide letter no.F24.ID/(377)12/NWD/Lab./5591 dated 26.11.12 and as such
the worklady has filed the present statement of claim directly before this Court
under Section 2 A of the I.D. Act by stating that she is unemployed since the date of
her termination and it is prayed that the management be directed to reinstate her at
the same post with full back wages and other consequential benefits. It is further
stated that she had earlier filed a claim directly u/s 10 (4) A of the I.D Act but since
the direct claim u/s 10(4)A of I.D Act was not maintainable and worklady had to
approach the conciliation officer first in view of the amendment in the I.D Act in
the year 2000 and accordingly she withdrew that claim with a liberty to file fresh
claim and thereafter has filed the present proceedings after approaching the
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Conciliation Officer first in accordance with the amended provisions of I.D Act. It is
accordingly prayed that the termination of the work lady be held illegal and the
Management be directed to reinstate her with full back waged and continued service
with other consequential benefits.
3 Management was served and it has filed its written statement taking
preliminary objections, interalia, that the claim of the worklady is not maintainable
as she has not come before this Court with clean hands and has suppressed the
material facts. Infact, the worklady had never been terminated as alleged rather she
herself is guilty of gross unauthorized absenteeism thereby resulting into
abandonment of her employment with the Management. It is further submitted that
the worklady was absent without any intimation or prior approval of the
management and every effort of management to call her back on duty proved
infructous due to the adamant attitude of the worklady. Management had also issued
several correspondences to the worklady including offer to join her duty before the
Mediation Cell proceedings and then even before the Conciliation Officer by filing
separate application in connection thereto but worklady has failed to join the same.
It is pertinent to mention that the Management was otherwise fully empowered to
take appropriate disciplinary action against the work lady regarding her absence, but
it had not taken any action against the worklady and the name of the worklady still
exists on the rolls of the Management and even in this written statement the
management had again offered the Worklady to join her duties. It is further
submitted that the present claim is not a claim which is covered u/s 2A of the ID
Act, 1947 as she has never been dismissed, discharged, retrenched or otherwise
terminated from services and as such no industrial dispute within the provision of
Section 2A of I.D Act is in existence as it is worklady who is running absent from
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the duty and, therefore, the claim of the worklady be dismissed.
4 It is ,further submitted that no demand notice has been ever served upon
Management before filing the present suit and even otherwise she is gainfully
employed and is earning much more than what she was earning in her employment
with the management.
5 As far as merits are concerned, relationship and length of service not denied
but it is specifically denied that the claimant was terminated from her services on
25.05.11 and the contents of preliminary objections are reiterated.
6 The worklady filed her rejoinder in which she denied that she has never been
terminated from the duty and it is submitted that the Management terminated her
services on 25.05.11 and despite all efforts made by her to resume the duties, she
was not allowed to do so rather the Management prevented her from joining duties.
Meanwhile the management harassed her beyond the limited by calling her
'Umpteen' times as a further measure to harass her so that she is made to abandon
the services even without payment of her statutory benefits like retrenchment
compensation & gratuity. Every show enacted by the management of calling her
back to duty was a farce intent to build up proof against the worklady that she has
abandoned the services while the management never wanted her back on duty and
even otherwise there is no reason why the worklady after so many years of services
with the Management should abandon the employment. Facts of the written
statement are denied by the worklady and the facts of the statement of claim have
been reiterated and reaffirmed as correct.
7 In her rejoinder, the worklady controverted the averments made in the written
statement.
8 After completion of the pleadings, following issues were framed on 20.02.13:
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1.Whether the worklady has absented herself from the duties and abandoned the job of her own: OPM.
2. Whether theservices of the worklady have been terminated illegally and / or unjustifiably by the management?OPW.
3. Relief.
9 After framing up of the issues, the parties were given opportunities to lead evidence and worklady was directed to lead her evidence and accordingly, the worklady examined himself as WW1 and closed his evidence. Thereafter, an opportunity was given to the management to lead its evidence and accordingly, the management examined Sh. Vijay Lakra as MW1 and closed its evidence. 10 I have heard the arguments and perused the record. My issuewise findings are as under:
ISSUE NO.1
11 Onus to prove the issue no.1 was upon the Management and it had to prove that the worklady had absented herself from the duty and abandoned the job. The Management in the WS has taken this objection and in her cross examination by Ld.ARM, she deposed that when she went to report her duty after the medical leave, she was not allowed to enter into the Management premises by the security guard. She had sent a letter to the Management and lodged the complaint. She cannot say whether she had filed the same in the court file or not. The claim of the worklady otherwise is that she was on medical leave w.e.f 02.02.11 after obtaining permission from the management and was not running absent and in her cross examination on this aspect she denied the she did not obtain any permission from the Management before preceding on medical leave on 02.02.11 and she voluntarily ID 461/12 M/s Somini Surendran vs M/s V.L.C.C. Health Care Ltd. Page 5of 17 6 stated that management even had given her form no. 105 with a letter written by the Management for the purposes of applying such leave. She further deposed that form no. 105 has been deposited with ESI hospital at Kerala and photocopy thereof is with her. Photocopy of form no.105 was accordingly, placed on record and copy was given to Ld. ARM and there is no further crossexamination on this aspect. She admitted as correct that the Management in this form no. 105 has written that she is proceeding on leave w.e.f. 02.02.11 to 02.05 11. the said ESI form no.105 was accordingly exhibited as Ex.WW1/XM1. The worklady has otherwise stated this fact in her statement of claim but the Management in the written statement had taken the stand that the work lady was running absent w.e.f. February, 2005. She further denied the suggestion that she has not given any medical certificate to the Management. The medical fitness certificate was dated 23.05.11 and she had not kept the copy of with her and she has given the same to one Sushma Sharma in the Management. She admitted as correct that she had joined the Management on 24.05.11 and again said that she joined the duty on the said date but denied the suggestion that neither she did her duty on 24.05.11 nor she joined the duty on 25.05.11. She further deposed that she did not have any document to show that she had worked with the Management on 24.05.11 or 25.05.11 and she voluntarily stated that she had put her signature on the register kept with the Management. 12 It is worth observing here that the management did not confront its attendance register to the worklady at this stage. MW1 was also crossexamined by Ld.ARW in this respect and MW1 denied the suggestion that the worklady had approached her with a request to sign necessary form for the period 02.02.11 to 24.05.11 to enable her to avail medical facility from ESI and he volunteered that the process of getting the form signed form from the management for taking the medical ID 461/12 M/s Somini Surendran vs M/s V.L.C.C. Health Care Ltd. Page 6of 17 7 facilities from ESIC hospitals had also stopped w.e.f. 2009 and the employee could have availed this facility online after 2009. He denied the suggestion that worklady is not being shown on the rolls of the management since 25.05.11 and he further deposed that such leave balance of the worklady as per the record, in the month of February, 2011 was minus 2 and earned leave were 6. To the question that despite the refusal of the management to sign the ESI Form, ESI benefit were still released by ESI department the witness stated that ESIC department might have reimbursed the claim of the worklady as the management had been complying with all the requisite formalities including the deposit of necessary contribution of the workman in this respect. The advice given to the worklady to join duty was on telephone but he again could not recollect as to by which telephone number of the management to which phone number of the workman, such request was made. He cannot show any communication sent by the Management to the worklady asking her to join the duties in the year 2011. He also denied that the worklady had approached the management with medical fitness certificate from the ESIC but the management did not take her back on duty. He also admitted as correct that he has not moved any application before the court of Dr. Shahabuddin, POLCIX, KKD Courts with a prayer that the workman be directed to join the management and he volunteered that the court asked him about this fact to which he showed his willingness to take the worlady back on duty. He further denied that the worklady filed reply dt. 30.12.12 to that application of the Management before the Conciliation Officer in rejoining duties.
13 This is entire evidence concerning this issue. The claim of the worklady is that the worklady has been running absent from duty since February, 2011 and she willfully absented herself from the duty and had not joined the Management despite ID 461/12 M/s Somini Surendran vs M/s V.L.C.C. Health Care Ltd. Page 7of 17 8 asking her before the Conciliation Officer, before the Mediation Centre and before the Court and therefore she is not interested to join the work and her such conduct amounts to abandoning the job.
14 The claim of the worklady on the other hand is that she had applied for leave to the Management which leave was sanctioned although she did not have any document as such documents have already been deposited by her with the management and she further deposited the same with ESI Hospital and as such she was not absent from the duty but she was on authorized medical leave. 15 The Management had been denying this version of the worklady throughout unless form no. 105 was confronted to the MW1 during crossexamination and she has been able to prove that said ESI form no. 105 has been duly endorsed by the Management by writing that she is proceeding on leave from 02.02.11 to 02.05.11 with the consent of the management. Here the defence of the Management stands exposed. The crossexamination of MW1 further clarified that the Management had been depositing the necessary contribution in the ESIC by making necessary deductions from the salary of the worklady and this fact also proves that she was on authorised leave during this period as if she would not have been on authorized leave, she would have been shown as running absent from the duty in the record of the management. Even the Management would not have deposited her ESIC contribution for the period if she would have been running absent unauthorizedly. Therefore, the worklady has been able to prove that she was on sanctioned medical leave atleast from 02.02.11 to 02.05.11. Further, she has further deposed that that she got medical certificate / fitness certificate from 23.02.11 and joined on 24.05.11 and when she was further crossexamined to show such medical leave, she deposed that no copy in original of this document was with her and she stated that it had ID 461/12 M/s Somini Surendran vs M/s V.L.C.C. Health Care Ltd. Page 8of 17 9 been given to Ms. Sushma. There is no further crossexamination of Management to the worklady on this aspect that Ms.Sushma has not taken this document from the worklady and even a suggestion has not been given to the worklady that there is no worker with the name of Sushma in the Management or to the question that any fitness certificate was not handed over to Ms. Sushma. Therefore, the worklady has also been able to prove that he was unwell upto 23.05.11 16 If the worklady has been able to prove that she was unwell upto 23.05.11 then there is no question of remaining unauthorized absent by the worklady. Further the Management in this entire period from February, 2011 for May, 2011 has not been able to prove that it had written any letter to worklady thereby asking her as to why she has not joined the duty nor there is any letter of calling her back to join the duty. This fact also proves that the workman was not running absent from the duty. Therefore this contention of the Management otherwise also cannot be accepted that the worklady has been running absent. Therefore this issue is decided in favour of the worklady.
ISSUE NO.2 17 Onus to prove this issue was upon the worklady and she had to prove that her services have been terminated illegally and/or unjustifiably by the management. The worklady in the statement of claim has stated that she was on medical leave w.e.f 2.2.2011 to 23.5.11 and she joined the duties on 24.5.11 but on 25.5.2011 at about 3 p.m Sh.Vijay Luthra, H.R Manager of the management informed the workman that her services have been terminated and as such her termination in such manner is illegal as neither she has been given any notice nor any compensation before terminating her services.
18 Management on the other hand has stated that the worklady was absenting ID 461/12 M/s Somini Surendran vs M/s V.L.C.C. Health Care Ltd. Page 9of 17 10 from her duties without any intimation or prior approval of the management and every effort of the management to call her back on duty has been failed and it is not the case of absconding from her duty and since the worklady has absented from her duties, she is not entitled for any relief. Evidence of both the parties is in terms of their respective defences. However, there is worth observing fact in the cross examination of M.W1. It is admitted fact that the workman earlier had filed a claim before this court which was subsequently dismissed as withdrawn on account of non fulfilling of mandatory process of first initiating the proceedings before the Conciliation Officer for atleast 45 days in terms of amendment in section 10 (4) A of the I.D Act w.e.f 15.9.10. It is also admitted fact that the management had filed the written statement in that claim and even issues have been framed prior to the withdrawal of the statement of claim and in cross examination, M.W1 in the present claim has admitted that the management has filed the WS before the court of Dr.Shahbuddin, the then POLCIX, KKD Courts and it bears the signatures of the AR for the management at point A and B respectively and the same is Ex.M.W 1/XW1. Court has also called the file of previous I.D i.e. I.D no.451/11. Para no.4 of the preliminary objections of the WS filed by the management in previous ID No.451/11 signed by Sh.Vijay Lakra himself who has appeared as M.W1 reads as under:
That the defendant in the event of such misconduct and subsequent to breach of the terms of employment, issued a notice of termination dated May, 25, 2011, terminating the services of the workman by giving one month's notice pay in full and final settlement in accordance to the clause 11 of the abovesaid contract.
19 Interestingly, this para no.4 of the preliminary objections of the previous I.D ID 461/12 M/s Somini Surendran vs M/s V.L.C.C. Health Care Ltd. Page 10of 17 11 no.451/11 is not finding mention in the present WS and here the management has taken the defence that the worklady has abandoned the job by remaining absent from February, 2011 and in fact she has never been terminated. So, there are two different written statements and two different defences of the management on the court record. In the previous written statement where the termination was admitted on the alleged ground of running absent by the worklady and in the present written statement, the fact of terminating the services by the management is denied and the plea of abandonment of services have been taken. There is no explanation at all as to under what circumstances, the previous WS was filed nor there is any explanation with regard to contradictory pleas and it is an admitted fact that the previous written statement has not been withdrawn by the management.
20 Now, coming to the aspect of abandonment. While disposing off the issue no.1, the workman has been able to prove that she was not running absent rather she was on medical leave and even she had been able to file form no.105 of ESIC which was duly signed by the management thereby recommending her leave w.e.f 2.2.11 to 2.5.2011 although she remained on leave upto 23.5.2011. Therefore, the contention of the management in the present WS that she was running absent from February, 2011 upto 23.5.11 has not been corroborated by the management itself. As far as overstay by the worklady from 2.5.11 to 23.5.11 is concerned, the worklady by mentioning the fact that she has filed medical certificates on 24.5.11 to the management has been able to give reasonable explanation of her absence from 2.5.2011 to 23.5.11 and this explanation becomes more relevant when the worklady has deposed that the medical certificate was given to one Ms.Sushma Sharma, the Manager of the management and there is no further cross examination on this aspect. Even the overstay from 2.5.11 to 23.5.11 has been proved thereby negating ID 461/12 M/s Somini Surendran vs M/s V.L.C.C. Health Care Ltd. Page 11of 17 12 the contention of the management that she had been absenting for this period. Therefore, the worklady has been able to prove that she was terminated on 25.5.11 and while terminating the services, no notice has been given to the worklady u/s 25 F of the I.D Act . The management claims that one month's notice was given to the worklady alongwith her termination letter in the previous written statement but in evidence, the said fact could not be proved as to whether such amount was given or not and by what mode i.e. cash or cheque and whether the said cheque was got encashed by the worklady. It is otherwise an admitted fact that the worklady was working with the management since 1994 and in absence of the compliance of provisions of section 25(F) of the I.D Act, such termination becomes illegal. Accordingly, the worklady has been able to prove that her services have been terminated illegally and/or unjustifiably by the management. RELIEF 21 Keeping in view findings of this court on issue no.1 & 2 the worklady is entitled to relief. Management however, has argued that in this matter, the worklady is not entitled for back wages as from the very beginning, the management is harping upon that the worklady should join the management and in support of its contention, he has relied upon following judgments:
1 Diamond Toys Co.(P) Ltd. Vs Toofani Ram & Anr.
2 Hridyanand Vs G.P Stores, Allahabad & ors 1996 LLR 433, Allahabad High Court 3 M/s Trina Engineering Co(P) Ltd. Vs Secretary(Labour) and ors 2006 (108) FLR 1082 Delhi High Court 4 Suja Agencies vs Uday Singh B Rawat and Anr.
ID 461/12 M/s Somini Surendran vs M/s V.L.C.C. Health Care Ltd. Page 12of 17 13 5 Mukesh Khanna vs Chandigarh Administration, Chandigarh & Anr. 2000, LLR 168, Punjab and Haryana High Court 6 U.P State Brassware Corpn. Ltd. & Anr. Vs Uday Narain Pandey 2006, 1 Supreme Court Cases 479 7 Sonali Garments vs Trimbak Shankar Karve 2003 LLR 5 22 It is argued by Ld.ARW that even in the cross examination before this court, the worklady was asked to join the duties in terms of the fact written in the WS where also she was offered to join the management but the witness has replied that she would only join the management if her previous accounts are settled and it is argued by the management that once the worklady has put a condition for joining the management, she is not entitled for any back wages from the date of making such offer by the management. The worklady has argued that all such suggestions of the management are for the sake of the suggestions and infact she had visited the management several times but she was not kept on duty. As far as evidence is concerned, the contention of the Ld.ARM is well found as in the cross examination, the worklady has admitted that the management had offered her to join the duties after the alleged termination. She volunteered that she would join the duty subject to the condition that her back wages, PF and other benefits including continuity of service be given to her but she further deposed that she has visited the management various times i.e. on 14.4.12, 15.4.12, 18.4.12, 1.5.12 & 2.5.12 but the management did not allow the worklady to join the management and suggestions given to that effect to M.W 1 were denied. Management also ID 461/12 M/s Somini Surendran vs M/s V.L.C.C. Health Care Ltd. Page 13of 17 14 denied that the worklady reported for duty in conciliation proceedings on 23.10.12, 26.10.12 & 30.10.12 and even on 14.2.13, 15.2.13, 16.2.13 and 22.2.13 and all such suggestions were denied and as such the Ld.ARW has argued that the management is only asking for joining the duty but infact the management was never interested to allow the worklady to join the duty nor any terms have ever been settled in between the parties as to on what terms or on what basis, the worklady would join the management.
23 I have given my thoughtful consideration to the respective contentions of both the parties.
24 No doubt the management had been offering the worklady to join the duties. The worklady has also been able to demonstrate that she visited the management various times but she was not allowed to resume the duty, IN these circumstances, the court is of the opinion that offer which was given by the management was only half hearted offer to the worklady as in absence of the complete proposal as to when the worklady would join and what would be the salary at the time of her joining has never reached the stage of consensus . The court is also of the opinion that once the confidence have already been shaken, the worklady was under reasonable apprehension that she would not be given the same respect what she was getting earlier before her illegal termination. The court is also of the opinion that once the management has terminated the worklady on 25.5.11 in terms of the previously filed WS , such offer in the 2nd WS appears to be an afterthought and the workman in such circumstances is well within its anticipation about ID 461/12 M/s Somini Surendran vs M/s V.L.C.C. Health Care Ltd. Page 14of 17 15 the conduct of the management. In these circumstances, non joining of the worklady in such half hearted offer of the management, in the considered opinion of the court appears to be reasonable. Therefore, it can not be said that the worklady would not be entitled for entire back wages in the circumstances. The worklady otherwise has claimed for reinstatement and the court in view of the discussions held herein above, the court is of the opinion that there is complete loss of faith in between both the parties and in such circumstances, reinstatement of the worklady would not be in the interest of both the parties and compensation would be better option. 25 As far as the quantum of compensation is concerned, worklady claims that her services have been terminated on 25.5.2012 and she is unemployed since then. Worklady is an able bodied person and it cannot be presumed that she was sitting without work for all such period . No doubt there may be certain initial difficulties to have alternate job but it cannot be presumed that worklady had been sitting idle without any work and the court is of the opinion that in such cases the lump sum compensation would meet the ends of justice. The court also find support from the following judgments:
1 Rameshwar Dayal vs Presiding Officer Labour Court no.VI, Delhi & Anr.2007 (3) LLJ 729(DHC) wherein the Hon'ble Delhi High Court came to the conclusion that 'a lump sum amount of Rs.50,000/ as compensation in lieu of reinstatement and back wages towards full and final settlement of all claims of the workman was an appropriate relief'.
2 In Kishan Lal and Ors Vs Govt.of NCT of Delhi & ors 2007 VI AD(Delhi) 13, the Hon'ble Delhi High Court ID 461/12 M/s Somini Surendran vs M/s V.L.C.C. Health Care Ltd. Page 15of 17 16 held mainly to the effect that 'in lieu of grant of relief of reinstatement and full back wages, the management was directed to pay to each of the workmen a lump sum compensation of Rs.40,000/ towards full and final settlement of all claims of each of such workmen'
26 Keeping in view the totality of the facts and circumstances, a lump sum compensation to the extent of Rs.2,00,000/ including gratuity, back wages, earned wages and other consequential benefits is awarded to the workman. Accordingly, the management is directed to pay the awarded amount from date of award within a period of one month, failing which this amount shall carry a simple interest @ 8% per annum till realization.
A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
ANNOUNCED IN OPEN (S.S.MALHOTRA)
COURT ON 30th AUGUST,2013 PRESIDING OFFICER
LABOUR COURTIX/KKD COURTS:DELHI
ID 461/12 M/s Somini Surendran vs M/s V.L.C.C. Health Care Ltd. Page 16of 17
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ID no.461/12
30.8.2013
Present: Sh.Syed Sajjad Ali, ld.ARW
Sh.Sourabh Munjal, Ld.ARM
Vide separate award, a lump sum compensation to the extent of Rs.2,00,000/ is awarded to the workman. Accordingly, the management is directed to pay the awarded amount from date of award within a period of one month, failing which this amount shall carry a simple interest @ 8% per annum till realization.
A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
(S.S.MALHOTRA) POLCIX/30.8.2013 ID 461/12 M/s Somini Surendran vs M/s V.L.C.C. Health Care Ltd. Page 17of 17