Delhi District Court
Alok Biswas vs M/S Capital Press on 25 February, 2025
IN THE COURT OF RITU SINGH,
DISTRICT JUDGE & ADDL. SESSIONS JUDGE,
PRESIDING OFFICER : LABOUR COURT - IV,
ROUSE AVENUE COURTS : NEW DELHI.
LIR No.1484/2018
CNR No.DLCT13-002752-2018
Sh. Alok Biswas
S/o Sh. Gopal Biswas
R/o Q-110, Mohan Garden,
Budh Bazar Road, Uttam Nagar,
New Delhi-110059
Through Bhartiya Sharmik Union (Regd.3254),
B-58/85, Rama Road, New Delhi-110015 ...Workman
Versus
Sh. Ashish Bhatia (Partner),
M/s Capital Press,
A-49/2, Mayapuri Industrial Area,
Phase-I, New Delhi-110064 .... Management
Date of institution of the case: 24.07.2018
Date of final arguments : 17.02.2025
Date of passing the Award : 25.02.2025
Decision : Award Passed
AWARD
1. Vide this Award, this Court shall decide the Industrial Dispute
which was referred by Joint Labour Commissioner, South
West District, Government of NCT of Delhi, on a complaint
filed by the aforesaid workman against the Management, vide
reference no.F.24(39)/18/SWD/Lab./6735-6737 dated
20.06.2018, u/s 10 (1) (c) and 12 (5) of The Industrial
Disputes Act, 1947, wherein the following reference was to
be answered :-
"Whether services of Sh. Alok Biswas (Age-52),
Mob.9013894058 S/o Sh. Gopal Biswas have been
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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?".
THE CLAIM OF THE WORKMAN
2. Notice of the reference was issued to the workman. Pursuant
thereto, the workman appeared and filed his first statement of
claim in the year 2017 and pursuant to order dated
13.10.2022 of Hon'ble High Court of Delhi, workman had
filed his amended statement of claim. In his amended
statement of claim he has claimed that he was employed with
the management as Machine Man (Skilled worker) since
21.09.1998 and Rs.16,400/- was his last drawn salary. It is
further alleged in the statement of claim that management
used to provide ESIC card, EPF, OTA, 15 days wages as
leave encashment and Bonus 8.33%, but failed to provide
appointment letter, attendance card, leave card, identity card,
house rent, LTC to workman, despite regular verbal demands
of workman and that these repeated demands by workman
was the main reason for termination of the services of
workman on 01.04.2017, in the evening after taking full day
duty, without any notice and reasons and that the workman
had reported for duty on the next day i.e. 02.04.2017, but the
management did not allow to workman to continuing job.
Thereafter, workman filed a complaint before Assistant
Labour Commissioner, South-West, DTC Colony Pratap
Nagar. Hari Nagar, New Delhi 110064 through Union on
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11.5.2017, but the management failed to appear before the
Labour Office, despite service of notice upon management.
3. It is further alleged in the statement of claim that thereafter
demand notice was served upon the management, through the
speed post on 16.6.2017, which was not replied by the
management. Workman had filed his claim statement before
Conciliation Officer, but to no avail.
4. The workman by way of present claim has prayed that an
award be passed in his favour and against management,
directing the management to reinstate him in service
alongwith consequential benefits and full back wages.
VERSION OF MANAGEMENT IN ITS WRITTEN
STATEMENT
5. Notice of the statement of claim was issued and served on the
management and management had entered appearance and
filed its written statement on 07.01.2019 and issues were
framed on the same day and the matter had proceeded to the
stage of ME and during the pendency of the case at the stage
of ME, the workman had moved an application for
amendment of its claim statement, which was disallowed by
the Ld. Predecessor of this Court vide order dated 30.03.2022
and the workman had challenged this order before the
Hon'ble High Court of Delhi and vide order dated
13.10.2022, Hon'ble High Court of Delhi had allowed him to
amend his statement of claim and thereafter the workman had
filed his amended statement of claim to which the
management had filed amended written statement on
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13.12.2022 and thereafter fresh issues were again framed on
23.01.2023.
6. In the amended written statement, management has
contended that the workman was never terminated by the
management, instead management has asserted that
workman himself had left the job of management, over the
issue of less production and by taking advantage of his
exclusive working on the said machine, workman had started
getting less production in few months, for the reasons best
known to him and the management after noticing less
production of materials had requested the workman to work
properly, over which he stated that if the management was not
satisfied with his working, he did not wish to continue and he
had asked for his full final legal dues, on which management
tried to resolve the issue and insisted that he should work
properly and increase production, but sensing his adamancy,
the management had even offered full and final legal dues to
workman, over which he said that he would come on next day
and receive the amount offered by the management, but he
did not turn up thereafter.
7. It is further contended by the management in its amended
written statement that present claim is not maintainable as
management has closed its business completely and
permanently w.e.f. 01.10.2020 and has also surrendered its
ESIC and PF Codes and vide letter dated 09.11.2020, both the
departments were given intimation regading the same.
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8. The management has admitted in its written statement that
workman was working on the post of Machine man, however
claimed that workman had joined the services of the
management on 01/02/2000 only and that last drawn salary of
workman was Rs. 14,400/- per month. Management has
denied that the services of the workman were terminated on
01/04/2017 by it and also denied that on 02/04/2017, the
workman had reported for duty, but was not allowed. The
management has claimed that over the issue of less
production, the workman had himself left the employment of
the management.
9. In the written statement, management has denied that the
workman was unemployed, since the date of his termination
and claimed that the workman was gainfully employed,
otherwise he would not have left his employment at his own
and even otherwise in the wake of permanent closure of the
management firm w.e.f. 01/10/2020, the workman is not
entitled to get any relief specially the relief of reinstatement
in services. The management has denied that the workman is
entitled for reinstatement with full back wages and all
consequential benefits.
ISSUES
10. Initially, issues were framed by Ld. Predecessor of this Court
on 07.01.2019 and subsequently, after the amendment of the
statement of claim by the workman, management had filed
amended written statement and thereafter the issues were
framed afresh on 23.01.2023 which are as under :
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(i) Whether the present petition is not maintainable as the
management has closed its business completely and
permanently w.e.f 01.10.2020 and has also surrendered
its ESIC and PF codes ? OPM
(ii) Whether the workman himself had left the job on the
issue of less production after settling all his dues in full
and final ? OPM
(iii) Whether the services of workman were terminated
illegally and/or unjustifiably by the management and if
so, to what consequential relief is he entitled for? OPW
(iv) Relief.
EVIDENCE OF WORKMAN
11. The case was initially fixed for evidence of workman and he
had tendered his first evidence affidavit Ex.WW1/A on
07.08.2019 and he was cross-examined on 26.03.2021 and
thereafter, pursuant to order dated 13.10.2022 of Hon'ble
High Court of Delhi, he had filed his amended statement of
claim and he had again tendered his additional evidence by
way of additional affidavit Ex.WW1/A1 and he was again
cross-examined on 10.04.2023.
12. In order to prove the case, the workman appeared as witness
WW1 and he has filed his evidence by way of affidavit
Ex.WW1/A and additional evidence affidavit Ex.WW1/A1
and his examination-in-chief has been recorded on
07.08.2019 and again on 10.04.2023, wherein he reiterated
the claim in his statement of claim, on solemn affirmation.
Besides this, he had also relied on the documents as
Ex.WW1/1 to Ex.WW1/9. He was cross-examined by Ld.
AR for the management on 26.03.2021 and he was cross-
examined on his additional evidence affidavit on 10.04.2023.
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EVIDENCE OF MANAGEMENT
13. The management has examined Sh. Ashish Bhatia, Partner of
M/s Capital Press as MW-1, who had tendered his evidence
affidavit bearing verification dated 09.05.2023 as
Ex.MW1/A on 28.11.2023 wherein he reiterated the contents
of written statement and was cross-examined on 18.04.2024.
Besides this, he had also relied in his evidence affidavit
Ex.MW1/A on documents Ex.MW1/1 to Ex.MW1/4 (colly.)
It is clarified herein that the MW1 Ashish Bhatia had filed
two evidence affidavits on record, but has relied only on his
evidence affidavit bearing verification of 09.05.2023.
14. The management has examined Sh. Dinesh, UDC from the
office of ESIC as MW2 and he has proved that letter dated
09.11.2020 sent by management received by ESIC on
11.11.2020, was giving intimation regarding closure of the
management firm on permanent basis w.e.f. 01.10.2020 and
this letter is already exhibited as Ex.MW1/1.
15. The management has further examined Sh. Ravi Kant, from
EPFO, RO, Delhi as MW-3, who has proved the payment
details in respect of M/s Capital Press (DL/CPM/12369)
wherein the management had deposited PF upto September
2020 as Ex.MW3/1 (colly.).
16. This Court has heard the final arguments addressed by ARs of
both the parties and also gone through the documents and
materials on record. The written submissions were filed on
behalf of the workman as well as on behalf of management
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and perused. The issue-wise findings of this Court are as
under:
ISSUE NO.1
Whether the present petition is not maintainable as the
management has closed its business completely and
permanently w.e.f 01.10.2020 and has also surrendered its
ESIC and PF codes ? OPM
17. The onus to prove this issue no.1 was on the management.
18. To discharge its onus, the management has claimed in its
amended written statement that the management had closed
its business completely and permanently w.e.f 01.10.2020
and has surrendered its ESIC and PF codes and that vide its
letters dated 09.11.2020, it had been intimated both the
departments regarding the same. The workman has denied
claim of the management that management has been closed
w.e.f. 01.10.2020. Ld. AR for workman has also pointed out
that in first evidence affidavit (not relied upon by
management), bearing attestation date of 23.02.2022, the
management has not made any claim of closure of its
business w.e.f. 01.10.2020 and it is only in second evidence
affidavit of management witness, filed in May 2023, that
management had claimed closure of management w.e.f.
01.10.2020.
19. The management witness MW1 Ashish had deposed on the
lines of management version, in his evidence affidavit
Ex.MW1/A and he has relied on copy of letters dated
09.11.2020 sent to ESI Department and PF department,
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which is exhibited as Ex.MW1/1 and Ex.MW1/2
respectively. The management had thereafter summoned Sh.
Dinesh, UDC from Regional Office, ESIC who was
examined as MW2 and he had conceded the receipt of letter
dated 09.11.2020 from management by the department on
11.11.2020, regarding closure of the management firm, but
he had also clarified in his cross-examination that despite
direction vide letter dated 19.08.2021 of the ESI department,
followed by reminder sent by ESI department to
management, the management had failed to furnish requisite
documents as per the abovesaid directions and reminder of
ESI department and MW2 has categorically deposed in his
cross-examination that office of ESI department cannot
confirm whether the establshment of management has been
actually closed.
20. Thereafter, the management had summoned and examined
MW3 Sh. Ravi Kant, SSA from EPFO department and MW3
Sh. Ravi Kant has categorically conceded in his cross-
examination that EPFO department had not received any
intimation from the management regarding its closure and
that the account of the management in EPFO has not been
closed as there is no such intimation received from the
management regarding its closure.
21. Further, the management has not filed its bank account
statement of the financial year 2020-2021, ITR returns of the
management of the year 2020-2021 and other relevant
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documents on record, during the management testimony in
Court to prove that management had closed its business w.e.f.
01.10.2020.
22. Thus, in the absence of any cogent and reliable ocular or
documentary evidence, there is no reasonable ground to hold
that management has closed its business w.e.f. 01.10.2020. In
view of the foregoing observations, this Court is of the
considered opinion that management has failed to establish
that it had closed its business completely and permanently
w.e.f 01.10.2020. Accordingly, issue no.1 is decided against
the management.
ISSUE NO.2
Whether the workman himself had left the job on the
issue of less production after settling all his dues in full
and final ? OPM
&
ISSUE NO.3
Whether the services of workman were terminated
illegally and/or unjustifiably by the management and if
so, to what consequential relief is he entitled for? OPW
23. This Court proceeds to consider and decide issue no.2 and 3
together as they are inter-related.
24. The onus to prove the issue no.2 was on the management and
onus to prove issue no.3 was on the workman.
25. The workman has claimed in his amended statement of claim
that he had been working as Machine Man in management
w.e.f. 21.09.1998, regularly and uninterruptedly and his
services were terminated by management on 01.04.2017 after
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taking full duty on 01.04.2017, without any reason, without
any notice and without holding any departmental inquiry. He
has further claimed in amended statement of claim that he
had reported for duty on 02.04.2017 but the management had
not allowed him to work in the management.
26. On the other hand, the management has pleaded in its written
statement to amended statement of claim that the workman
had himself left the services of the management after working
in March 2017, over issue of less production, when the
management had asked him to work properly and that though
management had made efforts to resolve the dispute with the
workman, but due to his adamancy, the management had
made offer to workman to take his full and final legal dues,
but the workman had left the services of the management,
without taking any legal dues and had never returned. The
management has claimed that it had contacted him on his
mobile phone several times, but workman did not report for
his duties, though the management had waited for him for
two months.
27. The workman in his cross-examination by Ld. AR for the
management has categorically denied that he had voluntarily
left the job of management on 01.04.2017 and he had also
denied that had never visited the management again
thereafter, to join his duties.
28. The management witness MW1 Sh. Ashish Bhatia had
deposed on the lines of the averments made in the amended
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written statement of management and in his evidence
affidavit Ex.MW1/A he had denied that the management had
terminated the services of the workman and again reiterated
regarding permanent closure of management w.e.f.
01.10.2020.
29. The contention of the management that the workman had
himself left the services of the management after March
2017, over the issue of less production has to be assessed in
the light of the judicial precedents and the factual matrix of
the present case.
30. The plea of abandonment cannot be assumed in absence of
any supporting credible evidence on record and in this regard,
it is relevant to refer to judgment of the Division Bench of
Hon'ble High Court of Delhi in Shakuntala's Export House
(P) Ltd Vs. Secretary (Labour), MANU/DE/0541/2005
wherein it was held that abandonment as misconduct,
requires proper inquiry. The judgment of the Single Judge
was upheld by the Division Bench is reported as 117 (2005)
DLT 479. To the same effect is another judgment in MCD Vs.
Begh Raj 117 (2005) DLT 438 laying down that if the
workman had abandoned employment, that would be a
ground for holding an enquiry and passing an appropriate
order and that having not been done, the action of MCD could
not have been sustained.
31. In M/s Fateh Chand vs Presiding 0fficer Labour Court &
Anr., 2012 LLR 468 Delhi, the Hon'ble High Court of Delhi
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observed that the management has to bring on record
sufficient material to show that the employee has abandoned
the service and abandonment cannot be attributed to the
employee without there being sufficient evidence. On failure
to report for duty, the management has to call upon the
employee and if he refuses to report, then an enquiry is
required to be ordered against him and accordingly action
taken. In the absence of anything placed on record by the
petitioner management, no presumption against the
respondent can be drawn. It was held to be a case of violation
of Section 25F of the Act.
32. In MCD vs Sukhbir Singh, 1994 ILR 332 , in case of abandonment of service, it was held that the management was duty bound to conduct an inquiry. Reference in this regard may also be made to Shakuntala Export House (P) Ltd. vs P.O. Labour Court X & Anr. 117(2005) DLT 479.
33. In the case of Shiv Dayal Soin and Sons Vs,. The Presiding Officer, Labour Court in LPA 801/2002 decided on 20.12.2007, the Division Bench of the Hon'ble Delhi High Court has held in para 11 thereof which is as follows:
"However, it is pertinent to note that a mere accusation that the Workers had abandoned their jobs is not enough to accept the said imputation, degree of proof required to establish abandonment of service, is rather strict and the management in this case has failed miserably to discharge the said burden of proof..."
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34. In Shiv Dayal Soin and Sons (supra) also relied upon in Buckingham and Carnatic Co. vs. Venkatiah AIR 1964 SC 1272 it was observed:
"abandoning or relinquishment of service is always a question of intention, and normally, such intention cannot be attributed to an employee without adequate evidence in that behalf."
35. In the case at hand, the management has claimed that management had contacted the workman on his mobile and that the workman had informed that he would join after 10 days and that the management had waited for him for two months, but workman had failed to join his duties. The management has neither pleaded in its amended written statement nor has led any documentary evidence to prove that any show cause notice/notice was sent to the workman regarding his abandonment of duty or directing him to join the duty.
36. Further, no document has been placed on record by the management to show that workman was issued any charge sheet for alleged misconduct of absenteeism from duty of the management or any subsequent enquiry was conducted against him in terms of abovecited judicial precedents. The workman has admitted in his cross-examination that he had received a letter from management to join his duties and he had also admitted that he had sent his reply to said letter of management and has relied on copy of his abovesaid reply LIR No..1484/2018; Alok Biswas Vs. M/s Capital Press Page No. 14 of 30 dated 13.06.2017 to letter of management, which is Ex.WW1/9. Apparently the management had sent its letter dated 07.06.2017, only after the workman had filed his complaint against the management before the concerned Assistant Labour Commissioner on 11.05.2017 and even thereafter management had failed to join conciliation proceedings, to settle the dispute with workman and to offer him reinstatement in services of management, before Conciliation Officer, to show its bonafides and thus claim of management also lacks bonafide.
37. The burden is entirely upon the management to prove that the workman had abandoned the employment. As observed earlier, one of the methods to prove such abandonment is through enquiry proceedings and when there is an absence of an enquiry proceeding, it cannot be assumed, by a mere plea by the management, that there was an abandonment of employment by the workman.
38. The requirement of conducting an enquiry against misconduct, including absenteeism, is one of the basic postulates of a fair proceeding before imposing punishment. Merely on an allegation by the management that the workman had abandoned the employment, a Court of law cannot come to a finding that the workman had abandoned the employment. When denial of employment alleged by the workman is countered by the plea based on abandonment of employment, it is necessary for the management to prove the LIR No..1484/2018; Alok Biswas Vs. M/s Capital Press Page No. 15 of 30 abandonment. Indubitably, abandonment of employment by the workman is essentially a question of fact as observed in G.T. Lad and Others Vs. Chemical and Fibres of India Ltd. (1979) 1 SCC 590 wherein it was held that:
"The ideal tool for establishing the plea of abandonment of employment is through an enquiry proceeding. However, there may be situations where the circumstances themselves could lead to an inference that the workman had abandoned the employment, but whether such circumstances exist or not is for the management to prove with through evidence that the workman had abandoned the employment. A long period of unauthorised absence is a certain indication of such abandonment. What constitutes a long period also depends on the facts of each case."
39. The Hon'ble Supreme Court of India has in a catena of decisions held that where an employer has failed to make an enquiry before dismissal or discharge of a workman, it is open for him to justify the action before the Labour Court by leading evidence before it and the entire matter would be then open before the Court/Tribunal, which would have the jurisdiction to satisfy itself on the evidence adduced by the parties, whether the dismissal or discharge was justified and reliance in this regard is placed on the judgment of Workmen of the Motipur Sugar Factory Private Ltd. v. Motipur Sugar Factory, (AIR 1965 SC 1803), and Delhi Cloth and General Mills Co. v. Ludh Budh Singh (1972) 1 SCC 595
40. As noted, no inquiry has been made by the management in the present matter as well. It is settled that where an employer has failed to make an enquiry before dismissal or discharge of a LIR No..1484/2018; Alok Biswas Vs. M/s Capital Press Page No. 16 of 30 workman, it is open for him to justify the action before the Labour Court by leading evidence before it and reliance in this regard is placed on 'Workmen of Motipur Sugar Factory Pvt. Ltd. Vs. Motipur Sugar Factory', AIR 1965 SC 1803 wherein it was held that:
"11. It is now well settled by a number of decisions of this Court that where an employer has failed to make an enquiry before dismissing or discharging a workman it is open to him to justify the action before the tribunal by leading all relevant evidence before it. In such a case the employer would not have the benefit which he had in cases where domestic enquiries have been held. The entire matter would be open before the tribunal which will have jurisdiction not only to go into the limited questions open to a tribunal where domestic enquiry has been property held (see Indian Iron & Steel Co. v. Workmen) but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified. We may in this connection refer to Sana Musa Sugar Works (P) Limited Vs. Shobrati Khan, Phulbari Tea Estate Vs. Workmen, and Punjab National Bank Limited Vs. Workmen. These three cases were further considered by this Court in Bharat Sugar Mills Limited Vs. Jai Singh."
41. Since there was no enquiry conducted in present case against the workman by the management, before discharging/ terminating his services on the grounds of alleged absence from duty, therefore the management had a primary duty to adduce sufficient evidence during trial to prove abandonment by the workman. However, management has not led any evidence to prove abandonment by the workman. The only plea of AR of the management is that notice was sent to the workman by the management, asking him to join his duties LIR No..1484/2018; Alok Biswas Vs. M/s Capital Press Page No. 17 of 30 and this fact has been admitted by the workman in his cross- examination as well as in his reply Ex.WW1/9. However, the contention of the management that the workman had failed to resume the job even after service of notice dated 07.06.2017 sent by the management, is by itself not a reason to presume that workman had any intention of abandoning the employment of management as the management itself had never filed on record copy of any the notice, sent by the management to the workman nor the management had taken any such plea in its pleadings or even in its evidence. Even otherwise, in the absence of any such notice on record, it is not possible for this Court to assess whether the said notice was regarding abandonment of employment by the workman or merely a show- cause notice seeking explanation for absence from the workman. Thus, there is absolutely nothing on record to substantiate the claim of the management that workman had abandoned his employment. Moreover, it is pertinent to bear in mind that temporary absence from duty is not abandonment.
42. In view of the aforesaid discussions, this Court is of the opinion that there is no credible evidence on record to hold that the workman had abandoned or had intention to abandon the services of the management and accordingly, in view of the abovesaid observations, issue no.2 is decided against the management and in favour of the workman.
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43. It is reiterated that the workman examined himself as WW1 and deposed in support of his claim and has proved the relevant documents as above said. The management has admitted that workman was its employee (though allegedly from 01.02.2000) and management had also not disputed that the workman had continued to work with the management till March 2017. The documents relied by the workman alongwith his testimony are not disputed and his testimony in one way or the other remained unimpeached. There is nothing in testimony of WW1 during his cross examination to controvert his claim. The management admitted the employment of workman. The workman categorically proved that he worked with the management and completed 240 days of work in the period of 12 month preceding the date of his termination.
44. In view of the evidence led by both the parties and documents produced on record, this Court holds that workman has been able to establish that he was employee of the management and his services have been illegally terminated by the management on 01.04.2017, without complying with the statutory provisions of Section 25-F of ID Act and accordingly, issue no.3 is decided in favour of the workman and against the management.
ISSUE NO.4 RELIEF LIR No..1484/2018; Alok Biswas Vs. M/s Capital Press Page No. 19 of 30
45. The workman herein has sought the relief of reinstatement in the service with full back wages and all the consequential benefits. During final arguments, Ld. AR for management has taken plea that workman has already attained the age of 58 years and he has argued that workman, having attained 58 years of age, has already attained the age of superannuation and is not entitled for reinstatement. Ld. AR for the management has relied on the judgment of Rameshwar Dayal Gupta Vs. Abaskar Construction Pvt. Ltd. (decided on 08.07.2010) in W.P. (c ) 7933/2005 in support of his averment that the normal age of retirement is 58 years.
46. Ld. AR of the workman has contended that there is neither any contractual stipulation nor any certified Standing Orders of the management, which prescribes the age of superannuation as 58 years. The workman has fairly conceded that in 2019 he was of 52 years of age as mentioned in his evidence affidavit filed on record in the year 2019 and presently he is approximately of 58 years of age. The workman has admitted in his evidence affidavit Ex.WW1/A that he was of 52 years of age as on date of filing of affidavit on 03.04.2019 and he has not disputed that he has attained 58 years of age.
47. It is admitted that workman was working in management as Machine Man and there was no appointment letter issued to him by management and that there was no certified Standing Order of management firm applicable to workman. It is not LIR No..1484/2018; Alok Biswas Vs. M/s Capital Press Page No. 20 of 30 disputed that there was no agreement or settlement regarding the age of superannuation between the workman and the management in the present case. Therefore, in view of these admitted facts and in absence of certified Statutory Order of the management, the service conditions of workman are governed by provisions of Industrial Employment (Standing Orders) Act 1946. The AR of management had not disputed applicability of Industrial Employment (Standing Orders) Act 1946 to the management. Thus, in absence of any agreement and certified Standing Orders, the age of superannuation shall be 60 years as per Rule 25 of Industrial Employment (Standing Orders) Act 1946 as Rule 25 of Industrial Employment (Standing Orders) 1946 stipulates that :
"The age for retirement or superannuation of the workmen may be sixty years or such other age as may be agreed upon between the employer and the workmen by an agreement, settlement or award, which may be binding on the employer and the workmen under any law for the time being in force."
48. Further, it is settled law that if no age of retirement has been predecided by the parties or there is no provision to this effect in employment contract or appointment letter, the retirement age of 60 is fair and reasonable as held in Mangey Ram Vs. National and Grindlays Bank Ltd., 1987 Lab.IC 1560. Thus, in view of the abovesaid discussion, this Court holds that there is no reasonable ground to uphold the contention of the LIR No..1484/2018; Alok Biswas Vs. M/s Capital Press Page No. 21 of 30 management that workman has reached the age of superannuation on attaining 58 years of age.
49. The term "reinstatement" has not been elucidated in the Industrial Disputes Act, 1947. The Shorter Oxford English Dictionary, Vol. II, 3rd Edition stated that, the word "reinstate" means to reinstall or reestablish (a person or thing in a place, station, condition etc.); to restore to its proper and original state; to reinstate afresh and the word "reinstatement means the action of reinstating; reestablishment. "As per Black's Law Dictionary, 6th Edition, "reinstatement" means 'to reinstall, to reestablish, to place again in a former state, condition, or office, to restore to a state or position from which the object or person had been removed'.
50. In Hindustan Tin Works Pvt. Ltd. Vs. The Employees of Hindustan Tin Works Pvt. Ltd., (1979 ) 2 SCC 80, the three judges Bench of the Hon'ble Supreme Court has laid down :
"In the very nature of things there cannot to a straight jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances..."
51. In cases of wrongful termination of service, reinstatement with continuity and back wages is the normal rule as held by the Hon'ble Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya and Ors., (2013) 10 LIR No..1484/2018; Alok Biswas Vs. M/s Capital Press Page No. 22 of 30 SCC 324. The concept of reinstatement was also discussed therein:
"The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money..... The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments.
The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments." (emphasis supplied).
52. Further, the Hon'ble Supreme Court in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya and Ors. (Supra), laid down the following principles to govern the payment of back wages:
"In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2 The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
LIR No..1484/2018; Alok Biswas Vs. M/s Capital Press Page No. 23 of 30 Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. 38.4 The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then, it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award or full back wages. 38.5 The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the LIR No..1484/2018; Alok Biswas Vs. M/s Capital Press Page No. 24 of 30 employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages."
53. In the case titled as Tapash Kumar Paul Vs BSNL & Anr, JT 2014 (7) SC 589, the Hon'ble Supreme Court has held that the Court may either award the compensation or order for reinstatement in the cases which do not fall within the five categories as described by the Hon'ble Supreme Court in the aforesaid judgment. The relevant portion of this judgment is reproduced as under :
"It is no doubt true that a Court may pass an order substituting an order of reinstatement by awarding compensation but the same has to be based on justifiable grounds viz.(i) where the industry is closed; (ii) where the employee has superannuated or going to retire shortly and no period of service is left to his credit; (iii) where the workman has been rendered incapacitated to discharge the duties and cannot be reinstated and/or; (iv) when he has lost confidence of the Management to discharge duties. What is sought to be emphasised is that there may be appropriate case on facts which may justify substituting the order of reinstatement by award of compensation, but that has to be supported by some legal and justifiable reasons indicating why the order of reinstatement should be allowed to be substituted by award of compensation. In the instant matter, we are not satisfied that the appellant's case falls in to any of the categories referred to hereinbefore which would justify compensation in lieu of reinstatement. We thus find no justification for the High Court so as to interfere with the Award passed by the Tribunal which was affirmed even by the single Judge, but the Division Bench thought it appropriate to set aside the order of reinstatement without specifying any reasons whatsoever, as to why it substituted with compensation of a meager amount of Rs.20,000/- to the appellant."
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54. The Hon'ble High Court of Delhi in the matter titled as Thomas Reuters Private Limited vs. Ld. Presiding Officer, Labour Court & Ors. cited as MANU/DE/2665/2021, dated 30.09.2021 has held that in cases of illegal dismissal, the normal rule is reinstatement with full back wages and relevant paras are reproduced herein :
" In view of the conspectus of the aforesaid judgments, be it ingeminated that whenever an employee is dismissed, removed or terminated and the action of the employer is found to be illegal, the normal rule, albeit subject to exceptions, is that the employee should be restored to the position which he or she held before the umbilical cord broke between the employer and the employee. As noticed by the Hon'ble Supreme Court, the word 'reinstatement' means to reinstall/re- establish/restore to the earlier position or former state, condition or office.
"106. Recent trend of judgments shows that Courts have been holding that reinstatement may not be a natural or automatic consequence of setting-aside of dismissal order. However, reading of the two aforesaid judgments and other recent judgments, in my considered view, leads to an inevitable conclusion that for the purpose of grant of relief of reinstatement, Courts have always understood and appreciated the difference in the nature of employment of the employee as well as the length of service. In the present case, Respondent No.2 was a regular employee, with over nineteen years of continuous and unblemished service and clearly falls within the axiomatic jurisprudence and legal regime laid down by the Hon'ble Supreme Court in Hindustan Tin Works (supra) and not in the exceptions in the later judgments.
"119. On a reading of the above conspectus of judgments and the principles propounded in Deepali Gundu (supra), it is clear that the law on back wages is no longer res integra. In cases of wrongful termination, reinstatement with back wages is the normal rule, subject to course to a caveat that while deciding the issue of back wages, Courts may take into consideration a host of factors, such as length of service of the employee, financial condition of the employer, etc. The LIR No..1484/2018; Alok Biswas Vs. M/s Capital Press Page No. 26 of 30 employee is required to plead that he or she was no gainfully employed or was employed on lesser wages. As observed in Deepali Gundu (supra), in cases where the Competent Court or Tribunal finds that employer has acted in gross violation of statutory provisions and/or Principles of Natural Justice, etc. then it shall be fully justified in directing payment of full back wages and in such cases, Superior Courts should not exercise powers under Article 226 or Article 136 of the Constitution of India and interfere with the Award, only because there is possibility of forming a different opinion. Hon'ble Supreme Court has also struck a note of caution that Courts must always keep in view that in cases of wrongful termination, wrongdoer is the employer and sufferer is the employee/workman and thee is thus no justification to give a premium to the employer for their wrongdoing by relieving them of the burden to pay back wages."
55. The principle of law which emerges from analysis of judicial precedents is that grant of reinstatement with full back wages is the normal rule when termination is found to be illegal, especially, in situations where services of regular or permanent workman is terminated illegally or malafidely and reliance in this regard is also placed on judgment of Anoop Sharma Vs. Executive Engineer, Public Health Division No.1 Panipat (2010) 5 SCC 497. Similarly in Hindustan Tin Works Pvt. Ltd. Vs. Employees of Hindustan Tin Works Pvt. Ltd. (1979) 2 SCC 80, wherein Hon'ble Supreme Court of India had held that relief of reinstatement with continuity of service can be granted when termination of service is found to be invalid. It is also pertinent to note that regular service of permanent character cannot be compared to short or intermittent daily wage employment, as held in General Manager Roadways Vs. Dudan Singh 2005 SCC (2 & 5) 716.
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56. In present case, the workman was admittedly employee of the management since 2000 and he had continuously and uninterruptedly worked with the management for almost 17 years till his termination after March 2017. The management has claimed, but failed to establish closure of the management firm and therefore, in light of legal position discussed hereinabove and considering that the case of the workman does not fall in any of the categories as mentioned by Hon'ble Supreme Court in the case of Tapas Kumar Paul Vs. BSNL & Anr. (Supra), this Court holds that the workman is entitled to reinstatement in service of the management.
57. Further, the workman in his statement of claim as well as in his affidavit Ex.WW1/A deposed that he is unemployed since the date of his illegal termination, despite his best efforts to find job. However, in his cross-examination he has admitted that he had worked intermittently during the period after his termination uptill 2019 and the relevant part of his cross- examination is reproduced hereunder:
"In the year 2018, I searched for job and got the same and I worked for 2-3 days however, my services were terminated at the instruction of the management Capital Press. In the middle of 2018, I visited Vandana Printing Press and I worked for 2-3 days however, my services were terminated at the instructions of the management Capital Press. In the month of August and September, 2018, I visited at Saraswati Office at Naraina but could not get the job. In the month of December, 2018, I visited at Sardarji office, Mundika and got the job and worked about 2-3 days. Thereafter, I did not vist in the printing press but I worked as daily wage worker for 3-4 days. Thereafter I visited in the month of January and February, 2019 and worked as a Helper of Electrician for only 2-4 days but the LIR No..1484/2018; Alok Biswas Vs. M/s Capital Press Page No. 28 of 30 contractor was not satisfied with my job so I could not continue."
58. In the present case, the workman has himself admitted in his cross-examination that he had been working intermittently, at different places during the period from 2017 to 2019, though for short periods and therefore, it appears that the workman was not completely unemployed, during the period after his illegal termination and was gainfully employed, though for short periods. Therefore, this Court is of the considered opinion that the workman is not entitled for full back wages and accordingly, this Court holds that the workman is entitled to back wages @ 20% of his last drawn salary, for the period from the date of his termination upto the date of this Award.
59. Thus, this Court holds that the workman Sh. Alok Biswas is entitled for reinstatement in services of the management as well as back wages @ 20% of his last drawn salary, for the period from the date of his termination upto the date of this Award.
60. Issue no.4 is disposed off, in terms of aforesaid direction.
61. Management is directed to pay the amount accrued in favour of workman within three months from the date of publication of award. If the management fails to pay the amount within the time stipulated, the accrued amount shall carry interest @ 8% per annum from the date of accrual and till the final payment is made.
62. The reference is answered accordingly in favour of the workman and against the management.
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63. Award is passed accordingly.
64. Digitally signed copy of Award be uploaded on the website of RADC. A copy of the award be sent to the concerned Dy. Labour Commissioner for publication as per rules.
Digitally
65. File be consigned to the Record Room. RITU signed by RITU SINGH Date:
SINGH 2025.02.25
04:01:39
+0530
Announced in the Open Court (RITU SINGH)
on 25.02.2025 District Judge & Addl. Sessions Judge
POLC-IV, RADC
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