Delhi District Court
Labour Court No.1 : Room No. 52 : ... vs State Of Tamil Nadu And Ors. 2004 Llr 35 on 2 April, 2007
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I.D. No. 397/00.
IN THE COURT OF SH. GURDEEP KUMAR: PRESIDING OFFICER:
LABOUR COURT NO.1 : ROOM NO. 52 : KARKARDOOMA : DELHI.
BETWEEN
M/s. Roop Gas Service, A-1/23, New Kodli, Main Road,
Delhi-96.
AND
Its workman Sh. Chuni Lal C/o Delhi General Trade Union
Congress, B-77, New Govind Pura, Chander Nagar, Delhi-51.
AWARD :
Vide Notification No. F. 24 (3318) / 2000 - Lab. 37735
- 39 dated 16.11.2000, Secretary Labour, Delhi Admn., Delhi
has referred this dispute to this court for its adjudication u/s
10 (1)(c) and 12 (5) of the I.D. Act, 1947. The terms of
reference are as under :-
''Whether the services of Sh. Chuni Lal
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?''
Workman's case in brief is that he had been
employed with the management since 01.03.1996 on the
post of a technician and worked for about four years
regularly and continuously and his last drawn wages were
Contd..
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I.D. No. 397/00.
Rs. 2,800/- per month. During the period of his employment
with the management, the workman worked very honestly,
sincerely and to the entire satisfaction of the management
and the workman had never given any chance of
complaint. The management was not providing legal
facilities to him as provided under the law such as medical
leave, casual leave, bonus and also not paying wages as
per Minimum Wages Act. He requested the management
to provide legal facilities but the management did not give
any heed to his request. On 06.05.2000 the workman again
raised his demand to provide the legal facilities from
management on which the management become
annoyed and terminated his services illegally and unlawfully
without serving any notice or paying notice pay in lieu
thereof along with other dues and also did not pay the
earned wages for the month of April, 2000. It is further
averred that management had forcibly obtained his
signatures on the blank papers, blank vouchers and blank
stamped vouchers. He served a demand notice upon the
Contd..
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I.D. No. 397/00.
management on 06.05.2000 through registered post but
neither the management had taken the workman back on
his duty nor paid his earned wages nor given any reply to his
demand notice. He also made a complaint on 11.05.2000
to the Conciliation Officer through his union but the
conciliation proceedings failed to yield any positive result. It
is further averred that act of the management is quite
illegal, unlawful, and against the principles of of natural
justice. The workman is stated to be unemployed since his
termination and could not secure any other job in spite of
his best efforts. He has sought his reinstatement with
continuity of service and full back wages.
2. The management has filed a Written Statement
taking preliminary objection that claimant Chunni Lal is not
a workman as defined under Section 2(s) of the Industrial
Disputes Act, 1947 as the claimant is running his own shop
for the repair of Gas Chulhas at his residence. He has never
been in the employment of the respondent management.
Contd..
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He was entrusted complaint work whenever any complaint was received from any consumer for the repair of his gas chulha etc. Claimant used to visit customers complaint and charges his visit charges as well charges for the repair of gas chulha and for the replacement of any part supplied by him. As such, in view of the facts stated above, there exists no relationship between the parties and no industrial dispute exists between the parties. Therefore, claim is false and fictitious to extract money from the respondent management by blackmailing. Rest of the averments in the Statement of Claim are denied in toto. It is further denied that claimant is jobless as he is running his own shop for the repair chullas.
3. No rejoinder was filed by the claimant. On the above facts / pleadings, following issues were settled on 04.02.2002 :-
1. Whether there existed relationship of employer and employee between the parties?
Contd..
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2. As per terms of reference.
4. On 24.04.2003 management abstained from the proceedings. As such, the management was proceedings ex-parte by my ld. Predecessor. The ex-pate proceedings were set aside vide orders of my ld. Predecessor dated 29.08.2003. The management was again proceeded ex- parte vide orders of 07.12.2004 which were again set aside by my ld. Predecessor on 04.04.2005.
5. The claimant filed his affidavit in evidence duly attested by an Oath Commissioner appointed by the Hon'ble High Court of Delhi. Therein he reiterated all his averments as spelled out in the Statement of Claim. Besides, he relied upon the copy of the salary register Ext. WW1/1 to WW1/25, copy of the demand notice Ext. WW/26, complaint made to the Conciliation Officer on 11.05.2000 Ext. WW1/27.
Contd..
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On the other hand, M.W1 Ms. Roop Kaur Sarawat. Proprietress of the management filed her affidavit in evidence reiterating all the averments in the Written Statement. Besides, she also relied upon the documents Ext. WW1/1 to WW1/25 copy of the salary register.
6. I have gone through the written submissions filed by the management. Neither oral submissions were made by the workman nor any written submissions were filed by the workman. I have also gone through the evidence that has come on record.
My findings on the issues are as under :-
ISSUE NO. 1.
7. It is settled law that onus is on the claimant to prove existence of relationship of employer and employee Contd..
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between him and the management. Reference in this regard may be made to a decision of the Hon'ble Apex Court in the case of Workmen of Nilgiri Coop. Marketing Society Ltd. Vs. State of Tamil Nadu and Ors. 2004 LLR 351 wherein Their Lordships have clearly laid down that burden of proof for existence of relationship of employer and employee lies upon the the person who sets up a plea of its existence. In this case the claimant Chuni Lal has claimed existence of relationship of employer and employee between them and the management. In the light of the aforesaid proposition of law laid down by the Hon'ble Apex Court, onus is on the claimant Chuni Lal to prove that relationship.
Reference in this regard may also be made to the decision of Hon'ble Apex Court reported as R.M. Yellatti and Assistant Executive Engineer 2006 (108) FLR 213 and Surendranagar District Panchayat & Anr. Vs. Jethabhai Pitamberbhai 2005 IX AD (S.C) 50. In the light of the said proposition of law, initial burden lies on the claimant Chuni Contd..
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Lal to prove relationship of employer and employee between them and the management.
8. In his deposition as WW1 workman has deposed that he had been employed with the management since 01.03.1996 as Technician and worked for four years regularly and continuously and his last drawn wages were Rs. 2,800/- per month. He further stated that Ext. WW1/1 and WW1/25 are the copies of the salary register maintained by the management. In his cross examination, he stated that no vacancy was published in the newspaper by the management. He joined management on information by one of his neighbours, namely, Prakash. He denied the management suggestion that he was running a shop at his residence during his employment with the management. He further stated that being an illiterate he did not lodge a police report alleging termination of his services by the management. In the cross examination of WW1, the management had suggested that his services had not been Contd..
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terminated by the management and rather the workman himself had left the services of his own. The workman denied that suggestion. This suggestion by the management in the cross examination of WW1, Chuni Lal amounts to an admission on the part of the management regarding existence of relationship of employer and employee between the claimant and the management. Besides, in her cross examination, Mrs. Roop Kaur Sarawat has admitted the workman's claim of existence of relationship of employer and employee between the parties. In her cross examination, Mrs. Roop Kaur Sarawat M.W1 stated that the workman Chuni Lal himself had come to her for employment; that when he was appointed, he was not issued an appointment letter as by that time no appointment letters were being issued by the management to its employees. She further stated that the management had given the requisite instruments and tools required for his job to the workman at the time of his appointment. She further stated that the workman used to attend the Contd..
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complaint assigned to him which used to be received by the management from the customers. She further stated that sometimes even workman Chuni Lal used to receive the complaint but generally the complaints used to be received by the staff employed for that purpose. She further stated that the management used to maintain register for complaint and that it was the duty of the workman Chuni Lal to maintain the register whenever complaints were received by other employee. She further admitted that Ext. MW1/W1 is the photo copy of the register maintained by the management. In her cross examination, she admitted that workman Chuni Lal had joined services with the management in 1996 or 1997. However, she stated that he was not doing the job satisfactorily. All these admissions by M.W1, Mrs. Roop Kaur Sarawat, in her cross examination, go to prove workman's plea of existence of relationship of employer and employee between the claimant Chuni Lal and the management. This coupled with the evidence brought on record by the workman Contd..
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makes it crystal clear that there exists relationship of employer and employee between the claimant Chuni Lal and the management. The issue is accordingly decided in favour of the workman and against the management. ISSUE No. 2.
9. As mentioned earlier, the workman Chuni Lal stated that he was employed with the management since 01.03.1996 and he worked there till May, 2000 when his services were terminated by the management on 06.05.2000. M.W1, Mrs. Roop Kaur Sarawat in her cross examination admitted existence of relationship of employer and employee and also conceded that workman was employed with the management since 1996 or 1997. This goes to prove that workman Chuni Lal had worked with the management for more than 240 days preceding the date of termination of his services on 06.05.2000. In the light of this, Contd..
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the management could have terminated his services only after complying with the provisions of Section 25-F of the Industrial Disputes Act, 1947. While deposing as WW1 workman Chuni Lal stated that the management terminated his services on 06.05.2000 illegally and unjustifiably without serving any notice or paying wages in lieu of notice along with other dues. Besides, he had sent a demand notice to the management which is Ext. WW1/26. Perusal of his cross examination by the management, reveals that this part of his statement has not been challenged by the management. Therefore, his testimony in that regard regarding service of demand notice Ext. WW1/26 goes unrebutted and unchallenged and there are no grounds to disbelieve the same. In the said demand notice the workman had categorically asserted that his services had been terminated by the management w.e.f. 06.05.2000 illegally and unjustifiably. The management did not rebut the same by way of any reply to the demand notice and, therefore, it is deemed to have admitted those Contd..
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assertions to be correct. This goes to show that the management has not complied with the provisions of Section 25-F of the Industrial Disputes Act, 1947 before removal of the workman from service on 06.05.2000. Even otherwise, it is not the case of the management that it had served any notice, show cause or one month's wages in lieu of notice, served any charge sheet on the workman or conducted a domestic enquiry before removing him from service on 06.05.2000. As mentioned earlier, the workman is entitled to protection under Section 25-F of the Industrial Disputes Act, 1947 as he had worked for more than 240 days with the management before his services were terminated on 06.05.2000. Termination of his services is deemed to be illegal and unjustifiable and violative of the provisions of Section 25-F of the Industrial Disputes Act, 1947.
10. The termination of services as above has been defined as retrenchment. The case of the claimant is not covered under any exception of the definition of Contd..
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retrenchment u/s 2 (oo) of the I.D. Act, 1947. It is settled law that retrenchment of the workman without compliance of provisions of of Section 25-F of the I.D. Act, 1947, is ab- initio illegal besides being inoperative and ineffective. Further, it follows that the workman continued to be in service.
11. In the light of the aforesaid evidence, I hold that the services of the workman were terminated illegally and unjustifiably by the management. In the light of the fact that workman Chuni Lal is out of service with the management since 06.05.2000 and a period of more than six and half years has elapsed since then, it is a fit case to award compensation in lieu of reinstatement and back wages. On this view, I am fortified by the case law in the case of Pramod Kumar and Anr. Vs. Presiding Officer and Anr. 2006 LLR 302, the workmen had worked only for two year with the respondent corporation and their services were terminated without compliance of Section 25-F of the Industrial Disputes Act, 1947 i.e. providing for retrenchment Contd..
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compensation at the time of their termination. It was held by Their Lordships that in view of long passage of time, direction for reinstatement with back wages could not be granted and claimants were granted compensation of Rs. 50,000/- each along with interest @ 8% per annum. As observed by Their Lordships in that case, it is settled law that an Industrial Tribunal has jurisdiction to direct reinstatement and in a case of wrongful dismissal, reinstatement is the normal rule. However, there are exceptions to this rule and these exceptions have been recognized in various judgments. It has been further observed by Their Lordships that reinstatement has not been considered desirable in cases where there have been strained relationships between employer and employee or there is lack of trust or loss of confidence. 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. Those observations were made by Their Lordships in the light of the pronouncement of the Hon'ble Apex Court in Rattan Singh Contd..
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Vs. Union of India, (1997) 11 SCC 396; Rolston John Vs. Central Government Industrial Tribunal-cum-Labour Court, 1995 (Supplementary) 4 SCC 549 (1194 Lab IC 973), Gujarat State Road Transport Corporation Vs. Mulu Amra AIR 1994 SC 112 and MP Shikshak Sangh Vs. State of MP, 1995 1995 Supplementary (1) SCC 556. In the case of Haryana Tourism Corp. Ltd. Vs. Fakir Chand, (2003) 8 SCC 248 the Hon'ble Apex Court directed a compensation of Rs. 70,000/-, instead of reinstatement with 25% 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.
12. In the facts and circumstances of the case and applying the aforesaid proposition of law laid down by our own Hon'ble High Court and by the Apex Court, I am of the Contd..
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considered view that it is a fit case to award compensation in lieu of reinstatement and back wages. Keeping in view the nature of the job which the workman used to do for the management, possibility of his having worked as Technician during the intervening period cannot be ruled out. A period of almost seven years has elapsed ever since his services were terminated on 06.05.2000. Keeping in view the tenure of four years of his service and a period of almost seven years have been elapsed since his services were terminated, it is a fit case to award compensation in lieu of the reinstatement and back wages. After taking into account all the relevant factors including length of service, his last drawn wages, the nature of his job in the light of which the possibility of his having worked intermittently cannot be ruled out, I am of the considered view that a compensation of Rs. 60,000/- (Rupees Sixty Thousand Only) would be sufficient and adequate compensation in lieu of reinstatement, back wages and other dues. The claimant Chuni Lal is accordingly awarded compensation Rs. 60,000/-
Contd..
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(Rupees Sixty Thousand Only) in lieu of reinstatement, back wages and other dues. The management is directed to pay the said sum of Rs. 60,000/- (Rupees Sixty Thousand Only) to claimant Sh. Chuni Lal within two months from the date of publication of the award, failing which the workman shall be entitled to interest on that amount @ 8% per annum from the date of publication of the award till payment / realization of that amount.
The reference is answered accordingly. Dated : 02.04.2007. (GURDEEP KUMAR) PRESIDING OFFICER:
LABOUR COURT NO.I. Typed 1+6 copies K.K.RDOOMA:DELHI.
Contd..