Delhi District Court
Sh. Mahipal Singh vs M/S Jahanpanah Club on 26 May, 2007
1
IN THE COURT OF SH. S.K. SARVARIA,
PRESIDING OFFICER LABOUR COURT, No. XII, KARKARDOOMA,
DELHI
ID No. 47/2006/2001
BETWEEN
Sh. Mahipal Singh,
C/o Delhi Mazdoor Manch,
52-C, Okhla Industrial Estate,
New Delhi - 110020. .........Workman.
AND
1.M/s Jahanpanah Club, Housing Scheme Alakhnanda, New Delhi.
2. M/s B.G. Catering, C.B. 15, Hari Nagar, Clock Tower, New Delhi - 110064. ..........Managements.
ID NO. 47/2006/2001 2 AWARD
1. The Industrial Dispute between the managements of M/s Jahanpanah Club, Housing Scheme Alakhnanda, New Delhi M/s B.G. Catering, C.B. 15, Hari Nagar, Clock Tower, New Delhi - 110064 and its workman Sh. Subhashish Dhar, C/o Delhi Mazdoor Manch, 52-C, Okhla Industrial Estate, New Delhi - 110020was referred by Secretary (Labour), Government of The National Capital Territory of Delhi for adjudication in exercise of powers conferred by section 10 (1) (c), 10 (1) (d) and 12 (5) of the Industrial Dispute Act 1947 (in short Act) vide his Order No. F.24 (3717)/2000 - Lab./ 41363 - 73,dated 14th December 2000 with the following terms of reference :
"Whether the services of Sh. Mahipal Singh, have been terminated illegally and/or unjustifiably by the management and if so, to what relief is, he entitled, and what directions are necessary in this respect? "
2. The notice of the reference was issued to the workman who filed statement of claim alleging, in brief, that he was working with the management since 16/8/1998 as Steward on the last drawn wages of Rs ID NO. 47/2006/2001 3 2419/-- continuously. The management did not provide him legal facilities like overtime, wage slip, attendance card etc and on demand of the same the management became annoyed and terminated his services on 17/5/2000 without any reason, without issuing any chargesheet, without any prior intimation by withholding his wages for the month of May 2000.
3. The workman sent the demand notice dated 9/6/2000 which was neither replied nor complied by the management. The dispute was raised by the workman before conciliation officer but due to non appearance of the management there, the conciliation proceedings failed. Hence, the reference.
4. The workman has also alleged that he has impleaded the two managements in this dispute because he was employed with management No.1and management used to change the contractors is but he continued employed with management No.1.
ID NO. 47/2006/2001 4
5. The workman has prayed for reinstatement to job with continuity of service and full back wages along with interest.
6. Both the managements contested the claim of the workman and filed separate written statements. The management No.1 in its written statement denied the relationship of workman and employer between the parties and existence of any industrial dispute with him. It has alleged that it had awarded the contract to management No.2 for running the Restaurant, Bar, Kitchen and Party rooms of the management No.1. The said contractor might have engaged the workman and management No.1 has no control of whatsoever nature on him as he was employee of the said contractor. The management No.1has denied the other facts stated in the statement of claim and has prayed for denial of relief to the workman by rejection of his statement of claim.
7. The management No.2 in its written statement has also denied the relationship of workman and employer between the parties and has alleged that it was merely a contractor whose work is purely of temporary nature with the management No.1 so management No.2 itself ID NO. 47/2006/2001 5 cannot provide a direct and permanent employment to the workman when it itself is working on contractual basis with management No.1. By the agreement/memorandum of understanding dated 26/7/1998 between both the managements the management No.2 was appointed as contractor to run Restaurant, Bar, Kitchen, Party rooms provided by management No.1for a period of three years from the date of signing of the agreement renewable with the mutual consent. On 17/5/2000 the President, Secretary and General Manager of the management No.1stopped the employees of the management No.2 to enter in the club premises and use the said particular premises, articles for the purpose of fulfilling the obligations as per the agreement. The management No2 has filed a civil suit for permanent injunction against the management No.1 which is pending before learned Civil Judge, Delhi and relief claimed in that suit is to prevent the management No.1and its member of managing committee and office bearers from preventing the management No.2and its employees from entering the club premises and using it. The court of learned Civil Judge has passed an interim injunction in favour of management No.2.
ID NO. 47/2006/2001 6
8. The case of the management No.2 is that during the period of the present crisis the workman voluntarily left the services of the management No.2 and abandoned the job and joined the services with management No.1 and as such the management No.2 under No circumstances can be held liable to reinstate the workman. The management No.2has denied the other facts stated in the statement of claim and has prayed for its dismissal.
9. In the separates rejoinder to the respective written statements the workman has denied the averments made in the written statements and has reaffirmed the facts stated in the statement of claim. The controversies between the parties in the pleadings resulted in the framing of the following issues by the tribunal on 13/3/2006: --
ISSUES
1. Whether there existed the relationship of employer and employee between the parties?
2. As per terms of reference.
ID NO. 47/2006/2001 7 10, Before the issues were framed the managements one after the other became exparte and workman filed affidavit in exparte evidence. Later on the managements moved applications for setting aside the exparte proceedings which were allowed. Thereafter, the workman again filed fresh affidavit evidence in support of his case. He was cross- examined before learned local commissioner appointed by this tribunal after which the workman closed his evidence. The management No.1has filed an affidavit evidence of its witness Shri Gopal Sharma and filed his affidavit in evidence. He was cross-examined before learned local commissioner after which the management No.1closed its evidence. The management No.2has examined only one witness namely M2W1 Shri Shekhar Patel and filed affidavit evidence. He was cross- examined on behalf of the workman after which the management No.2also closed its evidence.
11, The workman and both the managements have filed written arguments.
ID NO. 47/2006/2001 8 12, I have gone through the written arguments filed on behalf of the parties, the record of the case and relevant provisions of law carefully. My findings on the issues framed are an under: -
13, ISSUE NO.1 Some authorities are mentioned in the written arguments filed on behalf of management No.1in support of the contention that the burden to prove the existence of relationship of workman employer between the parties lies on the workman. But these authorities are not produced. However, there cannot be any denial to the contention that the burden to prove the existence of relationship of workman and management the parties in an industrial dispute lies on the workman. But in the present case it is not disputed that the management No.1 being owner of the premises of club in question is the principal employer and management No.2 was only contractor. It is also not disputed that the dispute arose between the managements and the management No.2 is out of the premises in question belonging to management No.1. The case of the workman is that he was employed with the management No.1and had been working with it since 16/8/1998. It is also the case of the workman ID NO. 47/2006/2001 9 that the management No.1used to change the contractor but the workman continued working with the management No.1. This contention of the workman is corroborated by him in his evidence and finds support from the pleadings and evidence of management No.2 also. The witness of management No.1MW1 has admitted in the cross-examination that the contract with management No.2 finished in 2002. Thereafter, one M./S.Tripti Caterer was given the contract. Therefore, the contention of the workman that the management used to change the contractor but he remained employed with the management no.1 is vindicated by the statement of MW1 in the cross-examination. The identity card copy of which is Ex WW1/5 also shows the name of both the managements though it was issued by management No.2. The witness of the management M2W1 has stated in the cross-examination that the gate pass was issued to the workman at the instance of management No.1. The terms and conditions pertaining to the agreement between the both managements are not brought on record. However, undisputedly the management No.1was principal employer and management No.2 was the contractor. There is no evidence about proper compliance of legal requirements of registration of management No.1being principal employer and of taking license by ID NO. 47/2006/2001 10 management No.2 as contractor as per the provisions of Section7 and Section 12 of Contract Labour (Regulation and Abolition ) Act, 1970 . Under these circumstances the principal employer, i.e., the management No.1who is debarred by Section9 of the said Act to employ Contract Labour shall be deemed to be employer of the workman.
14. In the light of the above discussion I hold that there existed the relationship of workman and employer between the workman and management No.1and no relationship existed between the workman and management No.2. The issue is decided in favour of the workman and against management No.1.
15. ISSUE NO.2 In the light of my findings on Issue No.1there existed the relationship of workman and employer between the workman and management No.1but not with management No.2. Therefore, no relief can be granted to the workman against management No.2 nor any relief is claimed by the workman against management No.2 in the statement of claim.
ID NO. 47/2006/2001 11
16. The termination of services of any workman by the management on any ground whatsoever other than a punitive action and the excluded categories (a) to (c) of S. 2(oo) of the Act amounts to retrenchment of the workman. If the workman had completed one year of the continuous service on the date of termination then the management is required to comply with the provisions of Section 25F of the Act by payment of the requisite retrenchment compensation and one months notice pay in lieu thereof etc prior to retrenchment of the workman. Section 25 B. So far is relevant defines one year's continuous service as 240 days service in an English calendar year. The burden to prove the fact that the workman had completed 240 days of service prior to his retrenchment lies on the workman. The denial of relationship of workman and employer between workman and management No.1by management No.1which was found unjustified, not only leads to the evidence of the workman regarding employment with the management No.1 since 16/8/1998 unrebutted , which is also supported by the identity card Ex WW1/5 , but also is implied admission of the management No.1regarding non-compliance of the provisions of Section 25 F of the Act at the time of termination of the services of the workman by it. The termination of the services of the ID NO. 47/2006/2001 12 workman by the management No.1is, therefore, illegal.
17. They question now arises what relief should be granted to the workman against the management No.1?Recently in U.P. State Brass ware Corporation Ltd. and others Vs. Uday Narain Pandey (2006) 1 SCC 479 the Apex Court has made the following observations:
"Before adverting to the decision relied upon by the learned counsel for the parties, we may observe that although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realising that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and /or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched."
18. In Lords Homeopathic Laboratories private Ltd. Vs. Ms. Lissi Unnikunju and others 2006 IV AD (DELHI) 739 (DB) the Division Bench of our Hon'ble High Court made the following observations:
ID NO. 47/2006/2001 13 "In a large number of cases, this court has granted compensation instead of reinstatement vide Model School for Mentally Deficient Child Vs. Mukh Ram Prasad Maurya and others 109 (2004) DLT 292, Suraj Pal Singh And others Vs. P.O, Labour Court and another 2002 v. AD (Delhi) 706; Harsha Tractors Ltd. Vs. Secretary (Labour) and others 2001 III AD (Delhi) 746; Sh. Pal Singh Vs. National Thermal Power Corporation Ltd. 2002 111 AD (Delhi) 1059; Sain Steel Products Vs. Naipal Singh and others 2001 LLR 566; R. Mugum and others Vs. The P.O. Labour Court and another 2000 VI AD (Delhi) and State Bank of India Vs. J.R.Surma 2002 VII AD (Delhi) 325.
Whether compensation should be awarded for reinstatement is in the Tribunal's discretion vide United Commerce Bank Ltd. Vs. Secretary, U.P. Bank Employees Union and others AIR 1953 SC
437. Various factors have to be seen as to whether reinstatement or compensation should be granted vide The management of Bharat Kala Kendra Vs. R.K. Baveja, 1980 (40) FLR 244 (Delhi).
In Hindustan Steel Ltd. Vs. A.K. Roy, AIR 1970 SC 1401, the Supreme Court observed (vide paragraph
14): - "The Tribunal, however, has the discretion to award compensation instead of reinstatement if the circumstances of a particular case are unusual or exceptional."
This view was followed by a Division Bench of this Court in Jagat Singh Vs. Estate Officer 2002 V AD (Delhi) 713. The same view was taken in Rolston John Vs. CGIT 1995 Supp. (4) SCC 548; DTC Vs. Presiding Officer 2000 LLR 136; Nehru Yuva Kendra ID NO. 47/2006/2001 14 Vs. UOI 2000 IV AD (Delhi) 709; A.K. Chakraborty Vs. Saraswadpur Tea Company Ltd. (1982) 2 SCC 328 etc. In Employers, Management of Central P&D Inst. Ltd. Vs. UOI, AIR 2005 SC 633, the Supreme Court observed that it is not always mandatory to order reinstatement after holding the termination illegal and instead compensation can be granted. The same view was taken by a Division Bench of Delhi High Court in Pramod Kumar Vs. Presiding Officer, 123 (2005) DLT 509"
19. In a recent judgement the Division Bench of our honourable High Court in the case reported to as a Pramod Kumar& Anr. VS The Presiding Officer & Anr. 2006 LLR Delhi302 (D B) has examined the legal position in the following words:
" 9. Since the decision of Federal Court in the case of Western India Automobiles Association v. Industrial Tribunal reported in AIR 1949 FC 111 is a settled law that an Industrial Tribunal has jurisdiction to direct reinstatement and in a case of wrongful dismissal re-instatement is the normal rule. However, there are exceptions to this rule and these exceptions have been recognized in various judgments. Re-instatements has not been consid- ered desirable in cases where there have been strained relation ships between employer and em- ployee or there is lack of trust or loss of confidence.
ID NO. 47/2006/2001 15 Reinstatement is also denied when an employee had been found to be guilty of subversive activity or acting prejudicial to the interest of the Industry. Courts have also denied reinstatement with back wages in cases where long time has lapsed. Refer- ence in this regard may be made to the judgment of the Supreme Court in cases of Rattan Singh v.. Union of India, (1997) 11 SCC 396; Rolston John v. Central Government Industrial Tribunal-cum-Labour Court, 1995 (Supp) 4 SCC 549: (1994 Lab IC 973); Gujarat State Road Transport Corporation v. Mulu Amra, 1995 Supp (4) SCC 548: AIR 1994 SC 112 and MP Shikshak Sangh v. State of MP, 1995 Supp (1) SCC 556.
10. In the case of Haryana Tourism Corp. Ltd. v. Fa- kir Chand, (2003) 8 SCC 248: 2003 Lab IC 3678. Supreme Court directed payment of compensation of Rs. 70.000 , instead of reinstatement with ?.5% back wages taking into consideration factors like (a) workers were daily wagers (b) workers were not recruited through employment exchange or regular mode of selection (c) services of the workers were terminated long back and (d) consideration nature of work, the workers must have done similar work at least intermittently.
11.In a number of matters, this Court has also ex- amined the same issue and it has been repeatedly held that where a long period has lapsed since the date of termination, compensation should be paid in lieu of re-instatement and back wages. Reference in this regard may be made to the judgments in the cases of Murari Lal Sharma v. Nehru Yuva Kendra Sangathan, (2002) 96 DLT 412 (DB) and K.H. Pandhi v. The Presiding Officer.
Addl. Labour Court, (2004) 110 DLT 101: 2004 Lab ID NO. 47/2006/2001 16 IC 1401 and Pal Singh v. NTPC Ltd., (2002) 96 DLT 877: 2002 Lab IC 1923."
20. In the present case there appears to be complete lack of faith between the parties and the management No.1 has even gone to the extent of denying the relationship of workman and employer with the workman. With the new protector already appointed by management No.1as admitted by MW1 in the cross-examination, it is unlikely that the vacancy of the workman still exists with management No.1. The services of the workmen were terminated by management No.1about Seven Years Ago. Therefore, in the Light of the above authorities and overall facts and circumstances of the case the workman, in my view, is entitled to a lump-sum compensation in the sum of Rs 40,000/-- from the management No.1in lieu of reinstatement to the job, continuity of service and back wages. The Issue No.2is also decided in favour of the workman and against the management No. 1.
ID NO. 47/2006/2001 17
21. In the light of my findings on the above issues the workman is entitled to a lump sum amount of Rs 40,000/-- from the management No.1in lieu of reinstatement to the job, continuity of service and back wages. In case the said amount is not paid by the management No.1 to the workman within two months of publication of the award the workman shall be entitled to recover the said amount along with simple interest @ 9% per annum from the date of this award till recovery of the said amount. The workman is not entitled to any relief against management No.2. The reference is answered accordingly. The copies of the award be sent to learned Secretary (Labour), Government of National Capital Territory of Delhi. The award be also sent to the server (www.delhicourts.nic.in). The file be consigned to the record room. ANNOUNCED IN THE OPEN COURT ON THIS 26TH DAY OF MAY , 2007.
(S.K.SARVARIA) PRESIDING OFFICER LABOUR COURT NO.XII, KARKARDOOMA COURTS, DELHI.
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