Delhi District Court
Shri Bijender Singh vs M/S. T.R. Sawhney Motors Pvt. Ltd on 23 July, 2016
IN THE COURT OF SHRI UMED SINGH GREWAL
POLCXVII ROOM NO. 22 :KKD COURTS: DELHI
LIR 5293/16 (Old No. LIR 25/14/09)
Unique ID No.02402C0235742009
Shri Bijender Singh
S/o Late Shri Ram Singh,
C/o Sanjay Sharma (Adv.) Seat No. K127,
4th Floor, Patel Hall, KKD Court,
Shahdara, Delhi110032
..............Workman
Versus
M/s. T.R. Sawhney Motors Pvt. Ltd.,
At Show Room & workshop 1,3334,
Mela Ram Complex,
East Gokalpur, Wazirabad Road,
Delhi110094
............. Management
DATE OF INSTITUTION : 12.08.2009.
DATE ON WHICH AWARD RESERVED : 22.07.2016.
DATE ON WHICH AWARD PASSED : 23.07.2016.
A W A R D :
1. Vide Order No. F.24(31)/DLC/NE/09/2052 dated 07.08.09
issued by Government of NCT of Delhi, a reference was sent to this
Court with the following terms:
"Whether services of Shri Bijender Singh S/o
LIR 5293/16 1/20
Late Shri Ram Singh have been terminated
illegally and/or unjustifiably by the
management and if so, to what sum of money
as monetary relief alongwith other
consequential benefits in terms of existing
laws/Govt. Notifications and to what other
relief is he entitled and what directions are
necessary in this respect?"
2. Claimant's case is that he had started working with the
management as electrician since 11.08.2003 at the last drawn salary
of Rs.3200/ per month. Earlier, he had filed an application under
Section 33C(2) of the I.D. Act, 1947 in which he had claimed
reinstatement with back wages but such relief was not maintainable
in that application and hence, he withdrew the same on 14.08.2008.
He had performed duties to the entire satisfaction of the
management and never gave opportunity of any complaint. But the
management was not providing him facilities like appointment
letter, ESI and PF etc. from the date of appointment, attendance card
and minimum wages. When he demanded those facilities, the
management got enraged and to teach him a lesson, withheld earned
wages from 01.09.2006 to 13.10.2006. His signatures / thumb
impressions were obtained on blank papers, vouchers, registers and
letter heads etc. forcibly on 13.10.2006. He was beaten and
threatened and his service was orally terminated on the same day i.e.
13.10.2006. He visited establishment of management several times
for joining back in job but the management did not allow him to join
LIR 5293/16 2/20
duty. He sent a demand notice dated 15.11.2006 but he was neither
reinstated nor his dues were cleared. He had given a complaint to
PS Nand Nagri on 13.10.2006 itself that his signatures were
obtained on blank papers forcibly by beating him. He is
unemployed since termination. He never absented from duties and
never resigned from the job.
3. Written statement is to the effect that the case is not
maintainable because the claimant is not entitled to claim anything
which did not exist when he had filed a case U/s 33C(2) of the I.D.
Act, 1947. It is further mentioned that the claimant should have
amended his case U/s 33C(2) of the Act suitably so as to claim
reinstatement with continuity of service and back wages in that case
itself and the remaining relief would have come to him
automatically. It has been denied that his signatures / thumb
impressions were forcibly obtained on blank papers, vouchers,
registers and letter heads by beating him. In fact, he had appeared in
the office of management on 13.10.2006 after a long absence and
voluntarily tendered resignation on the same day consequent to
which the management had sent him a letter on 25.10.2006 to take
full and final amount but he did not appear.
4. Following issues were framed on 19.02.2011:
(i) Whether the claim was maintainable in view of preliminary
objections taken by the management in the written statement?
LIR 5293/16 3/20
Onus on parties.
(ii) Whether the management had illegally and/or unjustifiably
terminated the services of the workman on 13.10.06? OPW
(iii) Whether the workman had after long absence appeared on
13.10.06 to tender his resignation voluntarily? OPM
(iv) Whether the workman had cause of action to file the present
claim after receipt of registered letter 25.10.06 for full and
final settlement of his dues?OPW
(v) Relief.
5. In order to substantiate the case, the claimant tendered his
affidavit in evidence as Ex.WW1/A mentioning all the facts stated
in stated in statement of claim. He relied upon following
documents:
(i) Ex.WW1/1 dated 15.11.2006 is demand notice.
(ii) Ex.WW1/2 are postal, UPC & courier receipts vide which
demand notice was sent.
(iii) Ex.WW1/3 dated 17.11.06 are courier receipt and
acknowledgement vide which demand notice was sent.
(iv) Ex.WW1/4 is complaint dated 13.10.06 by claimant to PS
Nand Nagri, Delhi in respect of incident of 13.10.06.
(v) Ex.WW1/5 is ESI Card in which his date of joining with
management is mentioned as 15.07.2004.
(vi) Mark A is statement of claim filed before Conciliation
Officer.
6. The management examined its Director Sh. Sanjiv Sawhney
LIR 5293/16 4/20
as MW1. He deposed that the management was the fastest growing
and number one Maruti Dealership Company in Delhi and NCR
providing number of services to end users of Maruti Automobile and
auto ancillaries. It is engaged even in the business of driving
schools, workshops, true value outlets and taxi services. More than
1200 persons are working in its various establishments. The
claimant had joined the management on 15.07.2004 as an
electrician. He and coworker Sh. Jag Mohan were absent in entire
month of August, 2006. They had worked for just six days in
September, 2006. Both resigned on 29.09.2006. After voluntarily
resigning the job, the claimant never turned up at the work place and
that is why the management was constrained to send him a
registered letter dated 25.10.2006 for collecting full and final
settlement dues. He next deposed that the management was still
ready to give him employment because there is no dearth of
vacancies with it. It is in dire need of skilled workers. He next
deposed that this court, vide order dated 12.10.2011, had directed
the claimant to resume duty alongwith labour inspector next day and
the labour inspector was directed to file report. He alongwith labour
inspector had come to the premises of management on 12.10.2011
itself at 6.00 p.m. but he was asked by the Court to resume duty
w.e.f. 13.10.2011. He did not come for duty on 13.10.2011. Next
deposition is that the management had given him option on
25.10.2008 to join back but he himself chose to claim on the
LIR 5293/16 5/20
pending dues. He relied upon two documents:
(i) Ex.WW1/M1 is the attendance card of the claimant for
September, 2006 (not filed on the case file of this case but it is
annexed in the file of case titled as Jag Mohan Vs. M/s. T.R.
Sawhney Motors (P.) Ltd. bearing LCA 01/07).
(ii) Mark A is letter dated 25.10.2006 by management to
claimant for full and final settlement (not filed on the case file
of this case but it is annexed in the file of case titled as Jag
Mohan Vs. M/s. T.R. Sawhney Motors (P.) Ltd. bearing LCA
01/07).
Issue No. 1:
7. Ld. ARM argued that the claimant is not entitled to claim
anything which did not exist when he had filed a case U/s 33C(2)
of the I.D. Act.
On the other hand, Ld. ARW argued that in the present case,
he is claiming only reinstatement with continuity of service and
back wages. He is not claiming any other relief. So, his case is very
much entertainable.
8. The claimant had filed LCA 02/07 titled as Bijendra Singh
Vs. M/s. T.R. Sawhney Motors (P) Ltd. claiming relief of earned
wages, conveyance allowance and reinstatement with back wages
etc. Thethen POLC Mr. T.S. Kashyap dismissed that case vide
LIR 5293/16 6/20
judgment dated 04.03.2010 holding that claim for earned wages and
conveyance allowance were covered in Schedule 3 of the Act and
hence, those reliefs can be granted only by Industrial Tribunal and
not by Labour Court. The Ld. POLC further held that the workman
cannot claim reinstatement with continuity of service and back
wages in petition U/s 33C(2) of the I.D. Act. The present case is
for reinstatement with continuity of service and back wages and
hence, it is definitely entertainable.
9. The second argument of Ld. ARM is that in case U/s 33C(2)
of the Act, there were two options before workman. The first option
was that he should have challenged the termination by making
necessary amendment U/s 2(A) of the Act. The second course
would have been to claim the relief of only recovery of money by
abandoning the relief of reinstatement with continuity of service and
100% back wages. He should have chosen the first option as by
doing so, the subsequent relief would have been automatically
granted to him by the Court. But he did not adopt any of the course
and his case was dismissed by the Court. Due to that reason, it is
not maintainable and he relied upon Balwant Singh and others Vs.
Union of India and another AIR 1990 P & H 26.
10. In the cited case, the Hon'ble High Court of Punjab and
Haryana held that bare perusal of order 23 Rule 1(4) of CPC makes
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it clear that a person is debarred from instituting a fresh suit after
withdrawal of earlier suit. It further held that the plaintiff was
precluded from instituting a fresh suit in respect of the same subject
matter. In the case in hand, the earlier case was U/s 33C(2) of the
I.D. Act, 1947. Under that Section, the Labour Court cannot grant
relief of reinstatement with continuity of service and back wages
and that is why, the case of the claimant was dismissed. That case
was not withdrawn by him. So, the cited law is not applicable.
Moreover, the strict provisions of Civil Procedure Code 2008 are
not applicable to the labour cases. For getting any relief U/s 33
C(2) of the Act, either there should be settlement or an award in
favour of the workman. Before getting his termination declared
illegal, any workman cannot claim back wages U/s 33C(2) of the
I.D. Act. Due to that reason, the case of the claimant U/s 33C(2) of
the Act was dismissed. The other reason of dismissal was that the
labour court cannot grant reinstatement in that Section. But any
reference case against termination, such relief can definitely be
granted by Labour Court. The present one is the reference case and
hence, it is very much maintainable.
11. In view of above discussion, this issue is decided in favour of
claimant and against management.
Issue Nos. 2, 3 & 4:
LIR 5293/16 8/20
12. All these issues are interconnected and hence, are being taken
together.
13. Ld. ARM argued that the claimant was absent in entire month
of August, 2006. He had worked hardly for six days in September,
2006. After such long absence, he appeared in the office of the
management on 13.10.2006 and orally resigned from the job.
Consequently, the management sent him a registered letter Mark A
for taking full and final settlement amount but he did not turn up.
He further submitted that even in petition U/s 33C(2) of the Act,
the management had given him offer to join back but he did not
respond. This court vide order dated 12.10.2011, had asked him to
rejoin w.e.f. 13.10.2011 but he appeared before management at 6.00
PM on 12.10.2011. He did not appear on 13.10.2011 and
afterwards. His absence proves that he had resigned from the
management on 13.10.2011. He further submitted that factum of
resignation has been admitted by claimant in para No. 10 of demand
notice Ex.WW1/1. He relied upon (i) Gyanendra Sahay V. M/s.
Tara Iron and Steel Co. Ltd. AIR 2005 Supreme Court 2795 and
(ii) Divisional Controller, N.E.K.R.T.C. Vs. H. Amaresh AIR 2006
Supreme Court 2730.
On the other hand, Ld. ARW argued that the management had
obtained signatures and thumb impressions of the claimant on some
blank papers, vouchers, register and letter heads on 13.10.2006
LIR 5293/16 9/20
forcibly by beating and abusing him. He had not tendered any
resignation on that day and that is why he immediately reported the
matter to PS Nand Nagri. He admitted that the claimant was
directed by the court on 12.10.2011 to join the management but he
was not allowed by the management to work on 13.10.2011.
14. In Gyanendra Sahay Vs. M/s. Tata Iron and Steel Co. Ltd.
(supra), the workman had written letter in his own handwriting for
voluntarily retirement. His request was accepted by the
management with immediate effect. The workman had accepted the
retiral benefits without any protest. In this background, the Apex
Court held that he cannot turn around and say that he was compelled
to submit premature/voluntary retirement letter. In the case in hand,
the resignation letter of the claimant has not been filed by the
management. So, he cannot be said to have resigned from the job.
He did not accept his dues tendered by the management vide letter
dated 25.10.2006. So, the facts of the cited case and case in hand
are diametrically opposite to each other.
In Divisional Controller, N.E.K.R.T.C. Vs. H. Amaresh
(supra), the allegations against the workman were that he was doing
duty on bus as conductor under the influence of liquor and did not
issue tickets to the passengers and in this way, he had
misappropriated money of the corporation. Charge regarding
pilferage was proved against him. Such are not the facts of the case
LIR 5293/16 10/20
in hand and hence, the cited law is not applicable.
15. As per the arguments of Ld. ARM, the claimant had resigned
from job orally. Following crossexamination of MW1 prove that
resignation was in writing:
"... Resignation letter was not written or signed in my
presence. The resignation was accepted on the same day. A
copy of the resignation letter, after acceptance was given to
the workman..."
So, arguments of Ld. ARM and crossexamination of MW1
are contradictory to each other. Crossexamination of MW1 proves
that the resignation was in writing. The management did not place
on record the resignation letter. Moreover, as per para No. 6 of
reply on merits of statement of claim, the claimant had resigned on
13.10.2006 but as per para No. 4 of affidavit in evidence of MW1,
he had resigned on 29.09.2006.
16. It is not disputed that the management had sent a letter Mark
A dated 25.10.2006 to the claimant inviting him to take full and
final settlement money in view of his resignation. In response, the
claimant had sent demand notice dated 15.11.2006 Ex.WW1/1
mentioning in para No. 10 that he had received a letter dated
25.10.2006 from the management for full and final settlement of his
dues. It is further mentioned that when he reached to the premises
of the management, he was again ill treated and the management
LIR 5293/16 11/20
refused to pay him dues and also refused to take him back in job.
Para No. 10 of the reply shows that the claimant had not resigned
from the job and that is why, he mentioned in that paragraph that the
management had refused to take him back in job. So, there is no
admission, as argued by Ld. ARM, in Ex.WW1/1 by the claimant
that he had resigned from the job.
Letter dated 25.10.2006 Mark A for full and final settlement
is based upon the resignation of the claimant. The basis of that letter
is the resignation letter but the management did not place on record
the resignation letter of the claimant. The parties are expected to
produce best evidence before the court. The resignation letter was
the best evidence but it has been withheld by the management and
the only reason may be that the claimant had not resigned from the
job.
MW1 deposed in examinationinchief that the claimant had
resigned on 29.09.2006. He deposed in crossexamination that the
management had sent 23 letters to the workman after 29.09.2006
calling upon him to join duty. Had the claimant resigned on
29.09.2006, what was the reason for management to send him letters
inviting to join duty.
It is correct that as per attendance card Ex.WW1/M1 for the
month of September, 2006, the claimant had worked on 6, 7, 8, 9, 10
& 29, September, 2006. The alphabet 'A' is appearing against the
date 30.09.2006. It means that the management was treating him
LIR 5293/16 12/20
absent on 30.09.2006. Had the claimant resigned on 29.09.2006, the
management would not have shown him absent on 30.09.2006. It is
correct that the claimant had worked with management in
September, 2006 only for six days but his absence from 11.09.2006
to 28.09.2006 was condoned by the management by allowing him to
join duty on 29.09.2006.
If the claimant had resigned on 13.10.2006, the management
would have given all his dues on that very day. Why the
management waited for 25.10.2006 to send a letter Mark A to him to
collect full and final settlement? There is no explanation with the
management why it did not give all dues to him on 13.10.2006
itself? It is pertinent to mention that case of the claimant is that his
service was terminated on 13.10.2006 by obtaining his signatures on
blank papers by beating and abusing him against which he had sent
complaint Ex.WW1/4 promptly to SHO PS Nand Nagri on
13.10.2006 itself. That complaint bears the seal of PS Nand Nagri
and it shown to have been received on 13.10.2006. Had the
claimant resigned on 13.10.2006, he would not have filed complaint
Ex.WW1/4 against management on the same day.
17. In view of above discussion, it is held that the claimant had
neither resigned on 29.09.2006 nor on 13.10.2006. In fact, his
service was terminated by the management on 13.10.2006. No
notice in writing was given to him before terminating his service.
LIR 5293/16 13/20
No notice pay and retrenchment compensation was tendered to him.
There is no allegation of misconduct and hence, there was no
question of chargesheet and domestic enquiry. In this way,
termination of service of the claimant by management on
13.10.2006 is illegal.
Issue No. 5:
18. Claimant deposed that he had started working with the
management on 11.08.2003. His that deposition has been cut to size
by ESI Card Ex.WW1/5 relied upon by himself. As per that card, he
had joined the management on 15.07.2004. To the same effect is
the evidence of MW1. So, the date of claimant joining the
management is taken as 15.07.2004 and not 11.08.2003. Ld. ARW
argued that the claimant is jobless since termination. On the other
hand, Ld. ARM argued that the claimant was skilled worker and is
working somewhere else after snapping of ties with the
management.
19. Even if service of a workman has been terminated illegally,
that would not automatically lead to reinstatement and 100% back
wages as was held in Nehru Yuva Kendra Sangathan Vs. Union of
India & Ors. 2000 IV AD (Delhi) 709, Hon'ble Delhi High Court
dealt with the question of reinstatement and back wages and
observed in paragraphs 27 and 28 as under :
LIR 5293/16 14/20
"27. We find from the decision of the
Supreme Court rendered in the 1970s and
1980s that reinstatement with back wages
was the norm in cases where the termination
of the services of the workman was held
inoperative. The decisions rendered in the
1990s, including the decision of the
Constitution Bench in the Punjab Land
Development and Reclamation Corporation
Ltd., Chandigarh seem to suggest that
compensation in lieu of reinstatement and
back wages is now the norm. In any case,
since we are bound to follow the decision of
the Constitution Bench, we, therefore,
conclude that reinstatement is not the
inevitable consequence of quashing an order
of termination; compensation can be
awarded in lieu of reinstatement and back
wages.
28. Considering the facts of this case, we
are persuaded to award compensation in lieu
of reinstatement and back wages to the
workman"
In Municipal Council, Sujanpur Vs. Surinder Kumar 2006
LLR 662, Hon'ble Supreme Court observed that the relief of
reinstatement is not automatic but is in the discretion of the court.
In paragraph 16, it was observed as under :
"Apart from the aforementioned error of law,
in our considered opinion, the Labour Court
and consequently the High Court completely
misdirected themselves insofar as they failed
LIR 5293/16 15/20
to take into consideration that relief to be
granted in terms of section 11A of the said
Act being discretionary in nature, a Labour
Court was required to consider the facts of
each case therefor. Only because relief by
way of reinstatement with full back wages
would be lawful, it would not mean that the
same would be granted automatically".
In Vinod Kumar & others vs Salwan Public School & others
WP(c)5820/2011 dt.17.11.2014 Hon,ble Justice V. Kameshwar Rao
has held as under:
11.Having considered the rival submissions
of the counsels for the parties, I do not find
any infirmity in the order of the Labour
Court. It is a settled position of law that even
if termination has been held to be illegal,
reinstatement with full back wages is not to
be granted automatically. The Labour Court
is within its right to mould the relief by
granting a lumpsum compensation. In fact, I
note that the Labour Court has relied upon
three judgments propounding the law that the
Labour Court can mould a relief by granting
lump sum compensation; the Labour Court is
entitled to grant relief having regard to facts
and circumstances of each case.
12. Further, the Supreme Court in the
following judgments held as under:
(a) In the matter reported as Jaipur
Development Authority v. Ramsahai, (2006)
11 SCC 684, the court has stated:
"However, even assuming that there had
been a violation of Sections 25G and 25H of
LIR 5293/16 16/20
the Act, but, the same by itself, in our opinion,
would not mean that the Labour Court should
have passed an award of reinstatement with
entire back wages. This Court time and again
has held that the jurisdiction under Section
11A must be exercised judiciously. The
workman must be employed by State within
the meaning of Article 12 of the Constitution
of India, having regard to the doctrine of
public employment. It is also required to
recruit employees in terms of the provisions
of the rules for recruitment framed by it. The
respondent had not regularly served the
appellant. The job was not of perennial nature. There was nothing to show that he, when his services were terminated any person who was junior to him in the same category, had been retained. His services were dispensed with as early as in 1987. It would not be proper to direct his reinstatement with back wages. We, therefore, are of the opinion that interest of justice would be subserved if instead and in place of reinstatement of his services, a sum of Rs 75,000 is awarded to the respondent by way of compensation as has been done by this Court in a number of its judgments."
(b) In the matter reported as Nagar Mahapalika v. State of U.P., (2006) 5 SCC 127, the court has stated:
"23. Noncompliance with the provisions of Section 6N of the U.P. Industrial Disputes Act, although, may lead to the grant of a relief of reinstatement with full back wages and continuity of service in favour of the LIR 5293/16 17/20 retrenched workmen, the same would not mean that such a relief is to be granted automatically or as a matter of course. 25 .....The appellant herein has clearly stated that the appointments of the respondents have been made in violation of the provisions of the Adhiniyam. An appointment made in violation of the provisions of the Adhiniyam is void. The same, however, although would not mean that the provisions of the Industrial Disputes Act are not required to be taken into consideration for the purpose of determination of the question as to whether the termination of workmen from services is legal or not but the same should have to be considered to be an important factor in the matter of grant of relief. The Municipal Corporation deals with public money. Appointments of the respondents were made for carrying out the work of assessment. Such assessments are done periodically. Their services, thus, should not have been directed to be continued despite the requirements therefor having come to an end. It, therefore, in our considered view, is not a case where the relief of reinstatement should have been granted."
(c) In the matter reported as Talwara Coop. Credit and Service Society Ltd. v. Sushil Kumar, (2008) 9 SCC 486, the court has stated:
"8. Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section 11A of the Industrial Disputes Act, 1947 are LIR 5293/16 18/20 required to strike a balance in a situation of this nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment viz. whether the appointment had been made in accordance with the statutory rules so far as a public sector undertaking is concerned, etc., should be taken into consideration."
(d) In the matter reported as Jagbir Singh v. Haryana State Agriculture Mktg. Board, (2009) 15 SCC 327, the court has stated :
"7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. ...
14. An order of retrenchment passed in violation of Section 25F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee."LIR 5293/16 19/20
20. It is the case of the claimant that he was working as electrician with the management. So, he was a skilled worker. He did not pinpoint any vehicle agency, electricity shop or business house or any other business concern visited in connection with re employment. His testimony of being idle is general and vague. Such skilled labourer would have definitely got job of the same status and salary if he had tried seriously. He had worked with the management from 15.07.2004 to 13.10.2006 i.e. for about two years and three months at the last drawn salary of Rs.3,200/ per month. Taking into account all these facts, a lumpsum compensation of Rs.60,000/ (Rupees Sixty Thousands Only) is granted to the claimant. The management is directed to pay the said amount to the claimant within a month from the date of publication of the award failing which it shall be liable to pay interest @ 9 per cent per annum from today till realization. Reference is answered accordingly. Award is passed accordingly.
21. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication. File be consigned to Record Room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 23.07.2016. POLCXVII/KKD, DELHI.
LIR 5293/16 20/20