Delhi District Court
Vide Order No. F.24(271)/99Lab. ... vs S.T. Hadimani on 3 September, 2015
IN THE COURT OF SHRI UMED SINGH GREWAL
POLCXVII: ROOM NO. 22, KKD COURTS, DELHI
ID No.165/10/99
Unique ID No.02402C0021081999.
M/s. Saini Service Station,
WZ85, Ring Road,
Raja Garden (Near Rajdhani College),
New Delhi15.
..............Management
Versus
Workmen
C/o Rashtriya General Mazdoor Union,
B239, Karampura, New Delhi15.
.............Workmen
DATE OF INSTITUTION : 04.03.1999.
DATE ON WHICH AWARD RESERVED : 26.08.2015.
DATE ON WHICH AWARD PASSED : 03.09.2015.
A W A R D :
1. Vide Order No. F.24(271)/99Lab. 793034 dated
25.02.1999, issued by Government of NCT of Delhi, a reference
was sent to this Court with the following terms:
"Whether S/Sh. Ram Pal, Balwant Singh,
Bed Pal, Subhash, Dinesh, Chander Pal,
Umesh Kumar, Satya Narain, Om Prakash,
ID No.165/10/99. 1/36
Dhirender Kumar, Rajbir, Samay Singh,
Gulab Singh, Ashok Kumar, Anil Kumar, Sai
Milan, Satish Kumar Rakesh KumarI, Nar
Singh, Rakesh KumarII, Pradeep Kumar,
Digamber, Braham Pal & Pramod have
abandoned their service, or their services
have been terminated illegally and / or
unjustifiably by the management, and if so,
to what relief are they entitled and what
directions are necessary in this respect?"
2. The reference was for 24 claimants, but Mr. Chander
Pal did not file statement of claim.
3. The matter was sent to the Mediation Cell where on
29.08.2008, the management settled the case with claimants,
namely, Ram Pal, Dinesh Kumar, Samay Singh, Rakesh Kumar,
Bed Pal, Nar Singh and Satish Kumar for a sum of Rs.5,000/ each.
The amount was paid to them in the form of cheques. It is
mentioned in Mediation Cell report that if the cheques given to
those workmen were dishonoured, they would approach the
management and management would make the payment of the
cheque amount along with a sum of Rs.200/ as cheque
ID No.165/10/99. 2/36
dishonouring charges. Above claimants did not make any
statement before this Court that their cheques were dishonoured.
On the same day, the matter was also settled with claimant Satya
Narain for a sum of Rs.3,000/ and cheque of that amount was
handed over to him on the same day. Claimants Pramod and Rajbir
had expired and so the management settled the case with their
wives, namely, Manju and Usha in the Mediation Cell on the same
day for a sum of Rs.3,000/ and Rs.5,000/ respectively. The
payment has still not been made to them.
4. Claimants' Umesh Kumar, Pradeep, Braham Pal,
Pramod, Balwant Singh, Anil Kumar and Sai Milan did not appear
for deposition.
5. Claimants case is that they were working with the
management with the following details :
S. W/m Name Father's Name Design. Date of Monthly
No. appoint. wages
1 Ram Pal Sh. Badlu Ram Counter 01.02.89 Rs.2103
Salesman
2 Balwan Singh Sh. Devi Prasad Helper 15.10.93 Rs.1937
ID No.165/10/99. 3/36
3 Bed Pal Sh. Sunder Lal Counter 06.03.90 Rs.2103
Salesman
4 Subhash Sh. Harish Counter 02.07.90 Rs.2103
Chand Salesman
5 Dinesh Sh. Chand Kiran Counter 02.07.90 Rs.2103
Sharma Salesman
6 Chanderpal Sh. Fakir Chand Counter 10.10.94 Rs.2103
Salesman
7 Umesh Kumar Sh. Budh Singh Counter 05.10.92 Rs.2103
Salesman
8 Satya Narain Sh. Laxman Counter 10.01.92 Rs.2103
Prasad Salesman
9 Om Prakash Sh. Siya Ram Counter 17.07.91 Rs.2103
Salesman
10 Dhirender Sh. Ram Singh Counter 10.10.86 Rs.2103
Kumar Salesman
11 Rajbir Sh. Sohan Lal Counter 06.03.90 Rs.2103
Salesman
12 Samay Singh Sh. Emrat Singh Counter 14.01.87 Rs.2103
Salesman
13 Gulab Singh Sh. Ramotar Counter 05.10.92 Rs.1937
Salesman
14 Ashok Kumar Raj Kumar Helper 03.07.93 Rs.1937
15 Anil Kumar Sh. Moti Ram Helper 15.09.92 Rs.1937
16 Sai Milan Helper 05.08.91 Rs.1937
17 Satish Kumar Sh. Ramswaroop Counter 01.06.89 Rs.2103
Salesman
ID No.165/10/99. 4/36
18 Rakesh Sh. Tilak Ram Counter 04.08.88 Rs.2103
KumarI Salesman
19 Nar Singh Sh. Mata Baks Counter 01.03.88 Rs.2103
Singh Salesman
20 Rakesh Sh. Hari Singh Counter 01.07.93 Rs.2103
Kumar Salesman
21 Pradeep Sh. Mangal Counter 05.03.90 Rs.2103
Kumar Singh Salesman
22 Digamber Counter 08.07.92 Rs.2103
Salesman
23 Brahampal Sh. Kanchhid Helper 10.02.93 Rs.1937
24 Pramod Sh. Jagdish Helper 04.04.85 Rs.2103
The management was not providing them legal
facilities like appointment letter, overtime wages and bonus etc., for
which they were demanding orally. Persistent demand annoyed the
management. Their signatures were obtained on blank papers.
They requested the officials of the management to tear the papers,
but the management refused. In this regard, they had sent a protest
letter to the management on 11.11.1998 and copy thereof was sent
to PS Moti Nagar. Their services were terminated illegally on
09.12.1998 and wages for the month of November, 1998 were also
withheld.
6. Written statement is to the effect that the claimants
ID No.165/10/99. 5/36
Dinesh Kumar, Nar Singh, Satish Kumar, Ram Pal, Pradeep
Kumar, Rajbir, Ved Prakash, Digamber Singh and Om Prakash
were their employees, but they abandoned the job by absenting
from duties voluntarily. Rest of the claimants, namely, Balwant
Singh, Subhash, Chander Pal, Umesh Kumar, Satya Narain,
Dhirender Kumar, Gulab Singh, Ashok Kumar, Anil Kumar, Sai
Milan, Rakesh KumarII, Braham Pal and Pramod, the plea has
been taken that they were never the employees of the management.
7. Following issues were framed on 17.08.1999:
1. Whether relationship of employer - employee existed
between the parties?
2. As per terms of reference.
8. In order to substantiate their claim, claimants Ram Pal,
Ved Pal, Dinesh Kumar, Subhash, Rajbir Singh, Digamber, Gulab
Singh, Dhirender Kumar, Nar Singh, Ashok Kumar, Satish Kumar,
Rakesh KumarII, Om Prakash, Rakesh KumarI son of Tilak Ram,
Satya Narain and Samay Singh tendered their affidavits in evidence
from Ex. WW1/A to Ex. WW16/A. They deposed that they were
working with the management from the date, on the post and at the
ID No.165/10/99. 6/36
last drawn salary mentioned in their statement of claim. The
management was not providing them the legal facilities. Their
persistent demands for bonus etc. prompted the management to take
their signatures on blank papers and vouchers. They did not
complain to the police against the act of the management fearing
loss of their job, but they requested the management to tear those
papers. When the management did not destroy the papers, they
sent a protest letter to it on 11.11.1998 and copy of the same was
sent to PS Moti Nagar. The management did not allow them to join
the duty on 09.12.1998 without any reason or rhythm. In this way,
their services were terminated without written notice, notice pay or
retrenchment compensation. No chargesheet was supplied to them
and hence there was no question of any domestic enquiry. When
the demand notice sent to the management felt on deaf ears, they
filed a case before the Conciliation Officer, Karampura, New Delhi.
The management did not appear before the Labour Office and
hence the matter was not settled paving way for reference. They
further deposed that the management had falsely alleged that they
had abandoned the job. The real facts are that they were ready to
do the job with the management, but the management was hellbent
to fire them and that is why did not allow them to join back the duty
ID No.165/10/99. 7/36
despite asking of the Labour Inspector. It is claimed that they were
jobless since 09.12.1998.
WW1 Ram Pal deposed in cross examination that in
pursuance to the statement before the Conciliation Officer, they
had joined the management on or about 09,10.11.1998. He told the
date of his joining the management as 01.02.1989.
WW2 Ved Pal deposed in cross examination that he
joined the management on 03.06.90. Mr. Mahesh Saini, who was
the proprietor of the management, had sold the petrol pump to one
Mr. Khanna. He further deposed that all the workers had raised
general demands before Mr. Mahesh Saini in October, 1998. After
lodging a complaint in the Labour Office, Karampura, Mr. Mahesh
Saini entered into compromise with them and took them back on
duty. It is further deposed that they had worked for the entire
month of November, 1998, after joining the management, but the
proprietor paid them salary of only 45 days.
WW3 Sh. Dinesh Kumar deposed in cross examination
that he had joined the management on 01.01.1988 and that his last
drawn salary was Rs.2103/. He was enjoying facility of PF and
ESI. He admitted it correct that salary was being paid to the
claimants against salary register. He was not member of any
ID No.165/10/99. 8/36
labour union while he was in job. He joined the union after
termination of service. He admitted that the matter was settled with
the management during conciliation proceedings and as per the
settlement, they were to join the management, but the management
did not allow them to join. He contradicted himself by deposing
that after settlement, he performed duty for about one month in
November, 1998.
9. WW4 Subhash deposed in cross examination that the
management used to pay them salary after obtaining signatures on
the wage register.
WW5 Rajbir Singh deposed that his last drawn salary
was Rs.1940/ per month. He was covered under PF and ESI
Scheme. He admitted that he had no complaint against the
management as he was given all the legal facilities. He further
admitted that in pursuance to settlement in Labour Office, they
were taken back on duty. He contradicted himself by deposing
that when they reported for duty, the management refused to give
them salary for the past period. It is admitted by him that they had
given notice to the management if their demands were not
accepted, they would proceed on strike.
ID No.165/10/99. 9/36
WW6 Digamber deposed that he joined the
management as Helper in July, 1992 and he was promoted as a
Salesman in 1996. His last drawn salary was Rs.21.03/ per month.
He had only one grievance against the management that it was not
paying him even minimum wages. He admitted in cross
examination that he and other claimants had worked with the
management for 6 - 7 days after the incident of 29.10.1998. He
took Uturn and deposed that he had worked for the whole month
of November, 1998. He admitted that they had set on dharna at the
petrol pump from where they were removed by the police.
10. WW7 Gulab Singh denied the suggestion that he
worked with the management. He could not remember whether he
was covered under the ESI and PF. He could not remember
whether he complained against the management about adulteration
in the petrol pump and less weighing. He admitted that they had
proceeded on strike on 29.10.1998. He took Uturn and deposed
that they had not gone on strike ever.
WW8 Dhirender Kumar deposed that he had left
services of the management w.e.f. 1992 - 1993 due to delivery of
his wife. He approached the management for reemployment but
ID No.165/10/99. 10/36
was not reemployed. He further deposed that he did not try to get
any other employment anywhere.
WW9 Nar Singh deposed in cross examination that he
was employed with the management since 01.03.1988 as Helper.
He denied the suggestion that he joined the management on
01.03.1990. His only grudge against the management was that it
was not providing overtime at the double rate, bonus and earned
leaves. He claimed that the management wanted him to sign some
blank papers and on his refusal the management terminated his
services. He further deposed that he had no dispute of any kind
with the management prior to 09.12.1998. He admitted that he
along with other workers had gone on strike against which the
management had obtained injunction from Civil Court. He further
admitted that they had worked with the management for 5 - 6 days
in the month of November, 1998 and remained on strike for
remaining days of the month. He further admitted that they had
demanded full wages from the management for the month of
November, 1998.
11. WW10 Ashok Kumar deposed in cross examination
that all the claimants who were working with the management were
ID No.165/10/99. 11/36
getting casual and other leaves. He denied the suggestion that he
was not employed with the management, but he admitted that he
and other workers had gone on strike and that the had demonstrated
on the petrol pump from where they were removed by police.
WW11 Satish Kumar deposed in cross examination
that he was not aware if he was covered under PF, but ESI was
applicable to him. He had no complaint against the management
except payment of overtime wages and bonus. He claimed that he
had not gone on strike. He admitted that in the case before Labour
Office, the management had informed the Labour Inspector that it
did not terminate their services. He further admitted that Labour
Inspector had instructed them to report for duty and in pursuance,
they had resumed their duties in the first week of November, 1988.
It has been deposed in cross examination by WW12
Rakesh KumarII son of Hari Singh that he used to reside at
WZ509, Basi Darapur, New Delhi since 1993. He had furnished
that address to the management for correspondence and used to
receive letter etc. on that address.
12. WW13 Om Prakash admitted in his cross examination
that his attendance used to be marked in attendance register and
ID No.165/10/99. 12/36
that he was paid salary after signatures on wage register. He was
covered under ESI and PF. He admitted that he had gone on strike.
WW14 Rakesh Kumar denied the suggestion that he
was never employed by the management.
WW15 Satya Narain denied the suggestion that letters
Ex. WW15/2, Ex. WW15/3 were false and fabricated and were not
received by him on the address of the management. He further
deposed that some of his known persons like Ganga Ram, Nar
Singh and Om Prakash were working with the management. He
admitted it correct that Conciliation Officer had advised them to
report for duty and in pursuance when they reported for duty, the
management did not allow them to join.
WW16 Samay Singh denied the suggestion that he
was working as counter attendant at the last drawn salary of
Rs.2105/ per month. He was covered under ESI and PF scheme.
His name was entered in attendance register. He denied that
documents Ex. WW16/1 to Ex. WW16/25 were forged and
fabricated.
13. The management examined two witnesses. MW1 Mr.
Mahesh Kumar Saini is the proprietor. He deposed that
ID No.165/10/99. 13/36
management was a partnership firm consisting himself and his
father Atar Singh Saini, who expired long back. He further
deposed that Ram Pal was working as Helper since 01.07.89 and
his last drawn salary was Rs.1940/ per month. Dinesh was
working as a Counter Attendant since 01.01.1989 at the last drawn
salary of Rs.2105/. Sh. Om Prakash was working as Helper since
01.08.1995 at the last drawn salary of Rs.1940/ per month. Sh. Raj
Singh was working as a Helper since 01.04.1994 at last drawn
salary of Rs.1940/ per month. Sh. Samay Singh was appointed as
Counter Attendant on 01.02.1987 and his last drawn salary was
Rs.2105/ per month. Sh. Satish Kumar was appointed as Helper
on 01.03.1990 and his last drawn salary was Rs.1940/ per month.
Rakesh Kumar1 was employed as Helper on 01.01.1989 at last
drawn salary of Rs.1940/ per month. Sh. Nar Singh was appointed
as Helper on 01.03.1990 at last drawn salary of Rs.1940/ per
month. Sh. Pradeep Kumar was also appointed Helper on
01.07.1992 at last drawn salary of Rs.1940/ per month. About
remaining workers, he deposed that they were never employed by
him at any point of time. It is further deposed that the management
never terminated the services of the claimants who were employed
with it. They were covered under ESI & PF and all other legal
ID No.165/10/99. 14/36
facilities were also granted to them. He never obtained their
signatures on blank papers or vouchers. They did not report for
duty on 29.10.1998 and thereafter made a false complaint to the
Labour Inspector. The management apprised the Labour Inspector
about real facts and thereafter the Inspector directed the claimants
to join duty. They worked for some days after rejoining, but again
absented and made a false complaint to the Assistant Labour
Commissioner. The ALC advised the claimants to report for duty.
In pursuance, they reported for duty, worked for few days in the
month of November, 1998, but disappeared again. They had
worked for few days in the whole month of November, 1998, but
they were insisting for the salary of whole month, which the
management denied. After denial by the management, the
claimants did not join the duty and in this way abandoned the job.
He further deposed that the claimants set on dharna on the petrol
pump and did not allow the vehicle to take petrol / diesel. The
management filed a civil suit against them and the Court of the then
Civil Judge Ms. Archna Sinha restrained them from observing a
dharna there. They were evicted with the help of the police.
MW2 Mr. S.K. Raja was Manager (Retail Sales) Delhi
Divisional Office of Indian Oil Corporation. It is pertinent to
ID No.165/10/99. 15/36
mention that management was running an outlet of Indian Oil
Corporation. He deposed that his company used to supply petrol,
diesel and lubricants to the petrol pump of Mahesh Kumar Saini.
The said petrol pump was inspected by the officer of the Indian Oil
Corporation on 20.03.2003 and found some irregularities. The
inspection report is Ex. MW2/1. Due to irregularities, sales and
supply of petrol, diesel and lubricants was stopped w.e.f.
20.02.2003 and the dealership was terminated on 08.04.2003 vide
letter Ex. MW2/2.
Issue No. 1.
14. Onus of proof of a fact is upon the person who alleges
that fact. It is the case of all 16 claimants that they were employed
with the management since long. So, they were required to prove
relationship of employer and employee with the management. It
was held in Range Forest Officer Vs. S.T. Hadimani, 2002I,
LLJ, 1053 that :
".....In our opinion the Tribunal was not
right in placing the onus on the management
without first determining on the basis of
cogent evidence that the respondent had
worked for more than 240 days in the year ID No.165/10/99. 16/36 preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside."
It was held by the Apex Court in R.M. Yallatti Vs. Assistant Executive Engineer, 2006 (108), FLR 213 SCC as under : "Analysing the above decisions of this Court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Dispute Act. However, applying general principles and on reading the afore stated judgments we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had ID No.165/10/99. 17/36 worked for 240 days in a given year. This burden is discharged only upon the workmen stepping the witness box. This burden is discharged upon the workmen adducing cogent evidence, both oral and documentary. In case of termination of services of daily wages earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workmen (claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment of termination, if any, the wages register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self serving statement made by the claimant / workmen will not suffice in the matter of discharge of the burden placed by law on the workmen to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere nonproduction of muster rolls per se without any plea of suppression by the claimant workmen will not be the ground for the Tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic ID No.165/10/99. 18/36 principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the Labour Court unless they are perverse. This exercise will depend upon facts of each case."
Following observations of the Hon'ble Apex Court in Surendranagar District Panchayat Vs. Dahyabhai Amarsinh, AIR 2006 SC 110 are relevant: "10. In the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he has actually worked with the employer for not less than 240 days during the period twelve calender months preceding the date of termination. What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. No proof of receipt of salary or wages or any record or order in that regard was produced; no co worker was examined; muster roll produced by the employer has not been contradicted. It is improbable that workman who claimed to have worked with the appellant for such a long period would not possess any documentary evidence to prove nature of his engagement and the period of work he had ID No.165/10/99. 19/36 undertaken with his employer. Therefore, we are of the opinion that the workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 month of the date of termination of his service. The Courts below have wrongly drawn an adverse inference for non production of the record of the workman for ten years. The scope of enquiry before the Labour Court was confined to only 12 months preceding the date of termination to decide the question of continuation of service for the purpose of Section 25F of the Industrial Dispute Act. The workman has never contended that he was regularly employed in the Panchayat for one year to claim the uninterrupted period of service as required under Section 25B(1) of the Act. In the fact & situation and in the light of the law on the subject, we find that the workman - respondent is not entitled for the protection or compliance of Section 25F of the Act before the service was terminated by the employer. As regards noncompliance of Section 25G and 25H suffice is to say that Witness Vinod Mishra examined by the appellant has stated that no seniority list was maintained by the department of daily wagers. In the absence of regular employment of the workman, the ID No.165/10/99. 20/36 appellant was not expected to maintain seniority list of the employees engaged on daily wages and in the absence of any proof by the respondent regarding existence of the seniority list and his so called seniority no relief could be given to him for non compliance of provisions of the Act. The courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the court. In order to entitle the court to draw inference unfavourable to the party, the court must be satisfied that evidence is in existence and could have be proved."
15. Claimants Umesh Kumar, Pradeep Kumar, Pramod Pal, Balwant and Sai Milan did not appear in the witness box. They did not tender any document in evidence. So, they have failed to prove that they were employed with the management.
16. WW4 Subhash placed on record a document tiled as salary slip. In fact, these three receipts of Rs.300/ each issued purport to have been for the salary of June, 1996, February, 1997 and April, 1998. He has placed on record an undated letter ID No.165/10/99. 21/36 purporting to be written by MW1 Mahesh Saini asking him to report for duty within 24 hours of receipt of the letter. In the same way, WW7 Gulab Singh has relied upon salary slips of the month of June, 1996 and April, 1997. His case is that MW1 Mahesh Saini had written an undated letter to him asking to rejoin the duty within 24 hours of the receipt of the letter. WW8 Dhirender Kumar stated that the management had written him an undated letter asking him to join the duty within 24 hours of the receipt of that letter. He relied upon an ESIC certificate on which the name of the employer is not mentioned. WW10 Ashok Kumar deposed that the management had issued him a receipt dated 08.04.1997 when he was paid salary of Rs.300/ for the month of March, 1997. WW11, he claimed, proprietor had written him a letter Ex. WW11/4 asking him to rejoin the duty.
All the salary receipts have not been signed either by proprietor or his officials. Those have been written on the letter head of the management. The claimant did not place on record the originals of those documents. They should have examined accountant or manager from the management to prove those receipts, but neither accountant nor manager was examined by them. Originals of the letters purporting to be written by MW1 Mr. ID No.165/10/99. 22/36 Mahesh Saini have also not been placed on the file. What is baffling is that the claimants did not put the letters to MW1 purporting to be written by him, asking them to rejoin. To prove those letters, prime duty of the claimants was to ask MW1 in cross examination whether those letters were bearing his signatures or not. Not a single question was asked from MW1 on these documents. Initially, these documents were exhibited, but it becomes clear from order sheet dated 27.03.2003 that some documents were exhibited in the evidence of workmen from WW1 to WW11. It is further mentioned that these witnesses were directed by the Court to file the originals, but they took the plea that the originals were in the possession of the union. The court gave its findings that if union did not produce those documents, the documents already exhibited in the evidence of WW1 to WW11 shall be treated as marked documents. Due to that order sheet, the documents relied upon by WW4, WW7 and WW10 are of no consequence.
WW8 Dhirender Kumar also relied upon those kinds of documents. He washed away the effect of those documents by deposing in cross examination that he had left the services of the management in 1992 - 1993 as his wife was to deliver a baby. ID No.165/10/99. 23/36 After some time, he came to management and asked for a job but management refused to reemploy him.
Due to above reasons, claimants Subhash, Gulab Singh, Dhirender Kumar and Ashok Kumar have failed to prove their relationship of employee with the management.
17. It has been admitted in written statement as well as by MW1 that claimant Om Prakash was employed with the management. Om Prakash deposed as WW13 that he joined the management on 17.07.91 and his last drawn salary was Rs.2103/ per month. Upto the date of termination of service i.e. 09.12.1998, he had worked with the management for more than 7 & ½ years. To the same effect is the admission of the management regarding Digamber. He deposed that he was working as counter salesman with the management since 08.07.1992 at the last drawn salary of Rs.2103/. Upto the date of termination of service i.e. 08.07.1992, he had worked with the management for more than 6 years. In view of admission by the management, claimants Om Prakash and Digamber have successfully proved that they were employees of the management.
In view of the above discussion, this issue is partly ID No.165/10/99. 24/36 decided partly in favour of the workmen and partly in favour of the management.
Issue No. 2.
18. Management had taken the defence in written statement and it has been deposed by MW1 also that some of his workmen had abandoned the job by absenting themselves. Onus of proof of that fact is upon the management because that fact has been alleged by it. In order to prove it, the management should have placed on record the the attendance or wage register showing the particular date from which the claimants had abandoned the job. There are some letters purporting to be written by MW1 to some workmen asking them to join the duty back. MW1 did not rely upon those letters in evidence. Those letters were not put to him even by the claimants. So, the management has failed to prove the plea of abandonment.
19. Claimants Umesh Kumar, Pradeep Kumar, Braham Pal, Pramod, Balwant Singh, Anil Kumar and Sai Milan did not appear for deposition and so they have failed to prove themselves ID No.165/10/99. 25/36 as employees of the management. Claimants Subhash, Gulab Singh, Dhirender Kumar, Ashok Kumar and Om Prakash contested the claim fiercely. In view of no relationship with the management, there arises no question of termination of service of Umesh Kumar, Pradeep Kumar, Braham Pal, Pramod, Balwant Singh, Anil Kumar, Subhash, Gulab Singh, Dhirender Kumar, Ashok Kumar and Rakesh KumarII S/o Sh. Hari Singh.
It has been deposed by WW6 and WW13 that while terminating their services on 06.12.1998, the management had not issued any notice. No notice pay, compensation, chargesheet was issued to them. In the absence of any chargesheet, there can be no question of no domestic enquiry. So the management had violated the provisions of Section 25F of the I.D. Act. So this issue is decided in favour of the claimants Digamber and Om Prakash, but against Umesh Kumar, Pradeep Kumar, Braham Pal, Balwant Singh, Anil Kumar, Subhash, Gulab Singh, Dhirender Kumar, Ashok Kumar and Rakesh KumarII (issue No. 1 Rakesh KumarI) Relief.
20. Claimants Digamber and Om Prakash deposed that their services were terminated by the management without notice, ID No.165/10/99. 26/36 notice pay and retrenchment compensation etc. On the other hand, case of the management is that they had abandoned the job. The management has failed to prove that plea. It is not the case of the management that any notice pay or retrenchment compensation was given to Digamber and Om Prakash. Even if the workmen have been terminated illegally, it would not lead to automatic reinstatement. 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 : "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 ID No.165/10/99. 27/36 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"
21. 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 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".ID No.165/10/99. 28/36
22. 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 the Act, but, the same by itself, in our opinion, would not mean that the Labour Court should have passed an award of ID No.165/10/99. 29/36 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 ID No.165/10/99. 30/36 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 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 ID No.165/10/99. 31/36 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 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 ID No.165/10/99. 32/36 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."
23. It has been proved by MW2 S.K. Raja that management was running a petrol pump, to which supply of diesel and petrol was stopped by Indian Oil Corporation due to some irregularities. Licence of the pump was cancelled in 2003. So, reinstatement is not the proper relief to claimants Digamber and Om Prakash. These two claimants did not pin point the name of the petrol pump, concern, institution visited by them in search of job. Taking into account their length of service and last drawn wages, a ID No.165/10/99. 33/36 lump sum compensation of Rs.80,000/ (Rupees Eighty Thousand Only) and Rs.1,00,000/ (Rupees One Lac Only) is granted to claimants Digamber and Om Prakash respectively. The management is directed to pay the said amount to these to workmen within a month from the date of publication of this award failing which it shall be liable to pay interest @9 per cent per annum from today till realization.
24. Since claimant Chander Pal has not filed any statement of claim, he is not entitled to any relief.
25. Claimants, namely, Ram Pal, Dinesh Kumar, Samay Singh, Rakesh KumarI son of Sh. Tilak, Bed Pal, Nar Singh and Satish Kumar have already settled their claim with the management for a sum of Rs.5,000/ each in the Mediation Cell on 29.09.08. On the same day, the matter was also settled by Satya Narain for a sum of Rs.3,000/ with the management. Claim of claimants, namely, Ram Pal, Dinesh Kumar, Samay Singh, Rakesh KumarI son of Sh. Tilak, Bed Pal, Nar Singh, Satish Kumar and Satya Narain is disposed off as settled.
ID No.165/10/99. 34/36
26. Claimants Pramod and Rajbir had expired and their case was settled by their wives, namely, Manju and Usha with the management in the Mediation Cell on 29.08.08 for a sum of Rs.3,000/ and Rs.5,000/ respectively. The payment has still not been made to them. The management is directed to pay the said amount to Ms. Manju and Ms. Usha with interest @9 per cent per annum from 29.08.2008 till realization.
27. Due to decision on issue Nos. 1 & 2, claim of claimants Umesh Kumar, Pradeep Kumar, Braham Pal, Balwant Singh, Anil Kumar, Subhash, Gulab Singh, Dhirender Kumar, Ashok Kumar, Rakesh KumarII son of Sh. Har Singh and Sai Milan is dismissed.
Liability
28. It is not in dispute that the proprietor Mr. Mahesh Kumar Saini has expired and his LRs, namely, Ms. Yogita Saini being wife, Mr. Rajan Saini and Mr. Paras Saini being sons and Ms. Astha Saini being daughter of the proprietor have been impleaded. ID No.165/10/99. 35/36 Their liability to pay the compensation is only to the extent of the value of the property taken over by them from the management. So, the compensation be realized from Ms. Yogita Saini, Mr. Rajan Saini, Mr. Paras Saini and Ms. Astha Saini from the estate / property of the firm derived by them.
29. The reference is answered accordingly. 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 03.09.2015. POLCXVII/KKD, DELHI. ID No.165/10/99. 36/36