Delhi District Court
Parmanand vs M/S Vector-E-Commerce Pvt. Ltd on 21 December, 2024
IN THE COURT OF SUJIT SAURABH, PRESIDING
OFFICER, LABOUR COURT-IX, ROUSE AVENUE
DISTRICT COURT, NEW DELHI
LIR No. 1123/2017
CNR No. DLCT13-004658-2017
PARMANAND Vs. M/S VECTOR-E-COMMERCE PVT.
LTD.
Sh. Parmanand
S/o Sh. Dharampal,
R/o 4/41, Gautam Gali,
New Vishwas Nagar, Shahdara,
Delhi-110032
Through Samajwadi Karamchari Union (Regd.)
D-212, Gali No.10, Jagatpuri,
Mandoli Road, Delhi-110093 ......Workman
Versus
M/s Vector-E-Commerce Pvt. Ltd,
54A/3, Basement Industrial Area,
Dilshad Garden, Delhi-110095 ......Management
Date of Institution : 12.04.2017
Date of Award : 21.12.2024
AWARD
1.This is a reference under Section 10(1)(C) read with Section 12 (5) of the Industrial Dispute Act, 1947 (in short, 'ID Act'). The reference has been sent to the Court for adjudication by Dy. Labour Commissioner, North-East District, Govt. of National Capital Territory of Delhi, vide order dated 06.04.2017 bearing notification No. F.24 (9)/Lab./NE/2016/768, in the industrial dispute arising LIR No.1123/2017 Parmanand Vs. M/S Vector-E-Commerce Pvt. Ltd. Page 1 of 16 between the workman namely, Sh. Parmanand and the management of M/s Vector-E-Commerce Pvt. Ltd, (hereinafter, referred to as 'Management'). The terms of reference read as follow:
"Whether services of Sh. Parmanand S/o Sh. Dharmapal, Age 31 years have been terminated illegally and/ or unjustifiably by the management and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. As per statement of claim, the workman was working with the management as Delivery Man since November 2014 and his last drawn monthly salary was Rs.15,711/- (Rupees fifteen thousand seven hundred and eleven only). On 13.04.2016, the workman was going to Sahibabad (U.P.) for some delivery when he met with an accident and he received severe injuries. He was taken to Guru Teg Bahadur Hospital by some unknown persons and from there he was taken to Indira Gandhi State Insurance Hospital, Jhilmil. On 25.05.2016, he was granted fitness. Thereafter, he resumed his duties. The management started pressurizing him for more work. Due to the aforesaid accident, the workman asked the management to give him lighter works. Instead of considering his request, the management terminated his services w.e.f 20.08.2016 without any notice or payment. The workman lodged a complaint with Labour Office on 08.09.2016. On 08.11.2016, the workman sent a demand notice to the management through Speed Post. The management did not reply to the notice. On 15.11.2016, the workman raised an industrial dispute before Conciliation Officer. Despite repeated summoning, the management did not appear before the Conciliation Officer. On the basis of report of Conciliation Officer, the Deputy Labour Commissioner referred the dispute to the Court.
LIR No.1123/2017 Parmanand Vs. M/S Vector-E-Commerce Pvt. Ltd. Page 2 of 16The workman has stated that the management neither issued any charge-sheet nor conducted any domestic inquiry and did not follow the mandate of Section 25 F of the I.D. Act. He has further stated that he could not find any employment despite his best efforts. He has prayed for reinstatement with back wages and continuity of service.
3. On notice, the management put up appearance thorough authorized representative and filed written statement.
In the written statement, the management has admitted employer-employee relationship between the management and the workman. On one hand, the management has admitted that the service of the workman was terminated vide letter dated 28.09.2016. On the other hand, the management has pleaded that the workman himself abandoned the services of the management.
4. Vide order dated 20.07.2018, following issues were framed by the Ld. Predecessor Court for adjudication: -
i. Whether the services of workman have been terminated illegally and / or unjustifiably by the management? O.P.W. ii. It the answer to the above mentioned issue no.1, is in affirmative, then as to what consequential relief is he entitled for? O.P.W. iii. Whether the workman had abandoned his services with effect from 18.08.2018 on his own? O.P.M. iv. Relief.
WORKMAN'S EVIDENCE (WE)
5. The workman led evidence in support of his claim.
Sole witness examined on behalf of the workman is workman LIR No.1123/2017 Parmanand Vs. M/S Vector-E-Commerce Pvt. Ltd. Page 3 of 16 himself. He stepped in the witness box as WW1 and tendered his affidavit in evidence Ex. WW1/A. He relied upon following documents: -
i. Copy of appointment letter Ex. WW1/1, ii. Copy of his Axis bank passbook Ex.WW1/2, iii. Copy of complaint filed before Labour Office Ex.WW1/3, iv. Copy of termination letter dated 28.09.2016 Ex.WW1/4, v. Copy of demand notice dated 8.11.2016 Ex.WW1/5, vi. Copy of postal receipt dated 8.11.2016 Ex.WW1/6, vii. Copy of statement of claim filed before Dy. Labour Commissioner, Vishwakarma Nagar, Delhi Ex.WW1/7, viii. Copy of notice for reporting for duty dated 25.01.2017 Ex.WW1/8, ix. Copy of his reply dated 13.02.2017 Ex.WW1/9 and x. Copy of postal receipt dated 13.02.2017 Ex.WW1/10.
MANAGEMENT'S EVIDENCE (ME)
6. The management also led evidence in its favour.
Sole witness examined on behalf of the management is Shrihari K.V. He is authorized signatory of the management company. He stepped in the witness box as MW1 and tendered his affidavit in evidence Ex. MW1/A. He relied upon following documents: -
i. Authorization letter issued by the management Ex. MW1/1, ii. Copy of appointment letter Mark-A, iii. Pay slip of the workman for the month of May 2016, June 2016, July 2016 Mark-B (colly), iv. Copies of letter dated 14.09.2016 and 21.09.2016 Mark-C (colly) v. Copy of termination letter dated 28.09.2016 Mark-D, vi. Copy of attendance sheet of the workman for period October LIR No.1123/2017 Parmanand Vs. M/S Vector-E-Commerce Pvt. Ltd. Page 4 of 16 2015 to October 2016 and June 2017 to October 2017 Mark-
E (colly), vii. Copy of termination revocation letter dated 02.11.2016 Mark-F, viii. Copy of organizational statement dated 11.11.2016 Mark-G (colly) and ix. Copy of notice for reporting for duty dated 25.01.2017 Mark-H. FINAL ARGUMENTS
7. I have heard arguments on behalf of both the parties. The parties have reiterated their pleadings.
ISSUE WISE FINDINGS
8. It is not in dispute that the management is an industry within the definition of Section 2(j) of the I.D. Act. It is also not in dispute that the dispute is an industrial dispute within the meaning of Section 2(k) of the I.D. Act. It is also not in dispute that the workman was in continuous service of the management. It is admitted fact that the workman was working with the management as 'Assistant Delivery'. It is also admitted fact that the service of the workman was terminated w.e.f. 18.08.2016.
9. Findings on issue no.3 have bearing upon issue no.1 and 2. Hence, issue no.3 shall be decided first.
10. Issue No. 3: Whether the workman had abandoned his services with effect from 18.08.2018 on his own? O.P.M. 10.1 The management has alleged that the workman had abandoned the service of management on his own. To substantiate the allegation, LIR No.1123/2017 Parmanand Vs. M/S Vector-E-Commerce Pvt. Ltd. Page 5 of 16 the management has relied upon documents Mark-C (colly), document Mark-D and document Mark-E (colly). Mark-C (colly) are letters of warning on long absenteeism. Mark-D is termination letter dated 28.09.2016. Mark-E (colly) is attendance sheet of the workman. 10.2 On the other hand, the workman has pleaded that his services were terminated illegally by the management. 10.3 The attendance sheet Mark-E (colly) is computer system generated. However, the management has not filed requisite certificate under section 65-B of the Indian Evidence Act, 1872. Hence, the document is not admissible in evidence. 10.4 Ex.WW1/3 is a complaint given by the workman to Deputy Labour Commissioner, Vishwakarma Nagar, Delhi. The complaint is dated 08.09.2016. In the complaint Ex.WW1/3, the workman has alleged termination of his service w.e.f. 20.08.2016. 10.5 Apparently, letter dated 14.09.2016 and 21.09.2016 Mark-C (colly) were sent to the workman after filing of his complaint Ex.WW1/3. The management's witness MW-1 Sh. Shrihari K.V. has admitted this fact in his cross-examination. To quote 'It is correct that the document Mark-C is issued to the workman after workman made a complaint before the Assistant Labour Commissioner on 08.09.2016 and the complaint is Ex.WW1/3.'. 10.6 Service of the workman was terminated with retrospective effect. This is evident from the termination letter dated 28.09.2016 Mark-D. Relevant portion of the letter Mark-D reads as follows:
"This is in continuation to our Warning letters sent to you on Wednesday, 14 September 2016 & Wednesday, 21 September 2016, calling upon you to return to work. We note with regret that you have neither returned to work nor explained the reason for your continued unauthorized absence.LIR No.1123/2017 Parmanand Vs. M/S Vector-E-Commerce Pvt. Ltd. Page 6 of 16
As per company policy & your offer letter clause 15, we hereby inform that your employment with the Company has been terminated effective from Thursday, 18 August 2016 and your last working day will be same. Your Full and Final Settlement will be completed by bank transfer."
10.7 As per termination letter Mark-D, the last working day of the workman was 18.08.2016. However, the first letter to the workman asking him to report to work was issued on 14.09.2016. Relevant portion of letter dated 14.09.2016 reads as follows:
"You are therefore advised to report to work within 2 days from receipt of this letter. Should you fail to return to work, it would be presumed that you have no explanation to offer and you have intentionally abandoned your services with the organization and the company will take action accordingly."
10.8 Relevant portion of letter dated 21.09.2016 reads as follows:
"It has been observed that you have proceeded on leave without any prior permission or information to DC-In Charge or Regional Manager from Friday, 19 August 2016.
We have sent you the 1st letter on Wednesday, 14 September 2016 and have not received any response from you and therefore advised to report to work within 2 days from receipt of this letter. Failing to return to work, it would be presumed that you have no explanation to offer and you have intentionally abandoned your services with the organization and the company will take action accordingly.
If you are not able to return to work for any reason other than the above, please contact the undersigned."
10.9 From the sequence of events noted above, it is evident that the management was in hurry to terminate the services of the workman in the garb of abandonment of service.
10.10 The plea of management is that the termination of the workman was revoked vide letter dated 02.11.2016 Mark-F. However, the workman did not resume his duty. Thereafter, a notice dated LIR No.1123/2017 Parmanand Vs. M/S Vector-E-Commerce Pvt. Ltd. Page 7 of 16 25.01.2017 was sent to the workman calling upon him to report for duty.
10.11 The workman has admitted receipt of notice dated 25.01.2017 in his letter dated 13.02.2017 Ex.WW1/9. He has stated that, on receiving letter dated 25.01.2017, he went to report for duty at Dilshad Garden office of the management on 08.02.2017. However, the management did not assign him duty.
At this juncture, it is worth noting that it is not the plea of the management that the workman did not report for duty pursuant to notice dated 25.01.2017.
10.12 On perusal of letter dated 14.09.2016 and 21.09.2016 Mark- C (colly) and termination letter dated 28.09.2016 Mark-D, it is apparent that the absence of the workman, if any, was for a short duration.
10.13 From the written statement of the management it is evident that the management was aware of the accident met by the workman. In para no.5 of the written statement, the management has stated that the workman had been granted 24 days paid leave on account of the accident met by him in April 2016. Similar averments have been made by MW-1 Shrihari K.V. in para no.5 of his evidence by way of affidavit.
10.14 Thus, from the evidence adduced by the workman and materials on record, it is clear that the workman had no intention to abandon the services of management. Temporary absence from the service, if any, was due to the accident met by the workman during discharge of his duties.
10.15 It is settled position of law that temporary absence from the service alone is not sufficient to constitute abandonment. Intention of LIR No.1123/2017 Parmanand Vs. M/S Vector-E-Commerce Pvt. Ltd. Page 8 of 16 the workman to completely detach from the service is essential for abandonment. There must be total and complete giving up of duties so as to indicate an intention not to resume the same. 10.16 In G. T. Lad & Ors Vs. Chemicals & Fibres of India Ltd. 1979 SCC (1) 590, Hon'ble Supreme Court has dealt with the issue of abandonment. It has been held as follows:
"In the Act, we do not find any definition of the expression 'abandonment of service'. In the absence of any clue as to the meaning of the said expression, we have to depend on meaning assigned to it in the dictionary of English language. In the unabridged edition of the Random House Dictionary, the word 'abandon' has been explained as meaning 'to leave completely and finally; for- sake utterly; to relinquish, renounce; to give up all concern in something'. According to the Dictionary of English Law by Earl Jowitt (1959 edition) 'abandonment' means' relinquishment of an interest or claim'. According to Black's Law Dictionary 'abandonment' when used in relation to an office means 'voluntary relinquishment. It must be total and under such circumstances as clearly to indicate an absolute relinquishment. The failure to perform the duties pertaining to the office must be with actual or imputed intention, on the part of the officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the party, and is a question of fact. Temporary absence is not ordinarily sufficient to constitute an abandonment of office'.
From the connotations reproduced above it clearly follows that to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same. In Buckingham Co. v. Venkatiah & Ors. it was observed by this Court that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf. Thus, whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstances of each case.
In Vijay S. Sathaye Versus Indian Airlines Ltd. & Ors.LIR No.1123/2017 Parmanand Vs. M/S Vector-E-Commerce Pvt. Ltd. Page 9 of 16
SLP(C) Nos. 24220-24221 of 2007, at para no.12, Hon'ble Supreme Court has quoted with approval the observation made in Buckingham and Carnatic Co. Ltd. v. Venkatiah & Anr., AIR 1964 SC 1272 which is as follows:
"Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf."
In M/s Engineers India Ltd versus Presiding Officer Labour Court W.P.(C) No.17858/2004 (Judgment dated 05.03.2018), Hon'ble High Court of Delhi has noted as follows:
"Intention, or animus, to abandon, is the necessary sine qua non, for any case of "abandonment" to be said to exist. In the absence of intention, there is no abandonment. Any clause contemplating "deemed abandonment", even if it exists, cannot be so interpreted as to deem abandonment to have taken place, even where intention to abandon is not apparent."
10.17 From the above discussions, it is manifestly clear that the absence of the workman from duty, if any, was not intentional to constitute the same as 'abandonment from services. Accordingly, the issue is decided against the management
11. Issue No.1: Whether the services of workman have been terminated illegally and / or unjustifiably by the management? O.P.W. 11.1 The management claims that the service of the workman was terminated after conducting domestic inquiry. However, the report of domestic inquiry has not been brought on record by the management.
On the other hand, the workman has specifically pleaded that no domestic enquiry was conducted by the management before his LIR No.1123/2017 Parmanand Vs. M/S Vector-E-Commerce Pvt. Ltd. Page 10 of 16 termination.
11.2 Termination of service of a workman by the employer is essentially a retrenchment unless it falls under any of the exceptions mentioned in section 2(oo) of the I.D. Act.
11.3 Section 2(oo) of the I.D. Act, reads as follows:
(oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include--
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill-health 11.4 Hon'ble Supreme Court, in K.V. Anil Mithra & Anr. Versus Sree Sankaracharya University of Sanskrit & Anr. Civil Appeal No. 9067 of 2014 (Judgment dated 27.10.2021), has held as follows:
"22. The term 'retrenchment' leaves no manner of doubt that the termination of the workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action are being termed as retrenchment with certain exceptions and it is not dependent upon the nature of employment and the procedure pursuant to which the workman has entered into service...."
11.5 Since, the management has failed to prove domestic enquiry, misconduct can not be attributed to the workman. Moreover, the case of the workman does not fall under any of the exceptions under LIR No.1123/2017 Parmanand Vs. M/S Vector-E-Commerce Pvt. Ltd. Page 11 of 16 section 2(oo). Hence, the termination of services of the workman is essentially a retrenchment.
11.6 Section 25F of the I.D. Act, lays down the condition precedents for retrenchment. It reads as follows:
25F. Conditions precedent to retrenchment of workmen. -- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until--
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette 11.7 From bare perusal of the provisions of section 25F, it is clear that no workman employed in any industry who has been in continuous service for not less than one year under an employer can be terminated without following conditions provided therein.
In K.V. Anil Mithra(supra), Hon'ble Supreme Court has noted as follows:
"23. The scheme of the Act 1947 contemplates that the workman employed even as a daily wager or in any capacity, if has worked for more than 240 days in the preceding 12 months from the alleged date of termination and if the employer wants to terminate the services of such a workman, his services could be terminated after due compliance of the twin clauses (a) and (b) of Section 25F of the Act 1947 and to its non-observance held the termination to be void ab initio bad....."LIR No.1123/2017 Parmanand Vs. M/S Vector-E-Commerce Pvt. Ltd. Page 12 of 16
11.8 Though the termination letter Mark-D states that full and final settlement will be completed by bank transfer, nothing has been brought on record by the management to show that any payment was made to the workman pursuant to termination of his service, leave apart retrenchment compensation.
11.9 There is nothing on record to show that the management had paid retrenchment compensation to the workman before terminating his services. Neither any notice was given to the workman nor wages for the statutory period of notice was given to the workman as per section 25(F) of the I.D. Act. The first notice of warning is dated 14.09.2016 and the termination letter is dated 28.09.2016. Even if, the notice of warning is considered to be a notice under section 25F of the ID Act, mandatory period of one month's notice has not elapsed in this case before termination of the workman. Hence, the termination of the workman is held to be illegal. Accordingly, the issue is decided in favour of the workman and against the management.
12. Issue no. 2 and 4 are essentially one and same. Hence both the issues are taken up together.
Issue No.2: If the answer to the above-mentioned issue no.1, is in affirmative, then as to what consequential relief is he entitled for? O.P.W. Issue No.4: Relief.
12.1 The workman has stated that he is unemployed since the time of termination of his service. He has prayed for reinstatement with full back wages.
12.2 As per letter Ex.MW1X/2, salary of the workman was revised LIR No.1123/2017 Parmanand Vs. M/S Vector-E-Commerce Pvt. Ltd. Page 13 of 16 from 1,77,720/- to 1,88,528/- with effect from 01.01.2016 and his gross monthly salary was 15,711/- (Rupees Fifteen Thousand Seven Hundred and Eleven only). This fact has been admitted by MW1 Shrihari KV.
12.3 From the evidences led by the parties and materials on record, it is evident that the workman had worked with the management for less than two years.
Coy of appointment letter Mark-A has been brought on record by the management whereas copy of appointment letter Ex.WW1/1 has been brought on record by the workman. As per appointment letter, the workman was offered position of 'Assistant Delivery' with effect from November 27, 2014. This is admitted fact that the service of the workman was terminated with effect from 18.08.2016. Thus, in all possibilities, the workman had worked for a period less than two years.
12.4 So far as claim of back wages is concerned, a workman can not claim back wages as a matter of right. It is necessary for the workman to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family.
In Rajasthan State Road Transport Corporation, Jaipur Versus Shri Phool Chand (Dead) Through L.Rs. Civil Appeal No.1756 of 2010 (Judgment dated 20.09.2018), Hon'ble Supreme Court has observed as follows:
11. In our considered opinion, the Courts below completely failed to see that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/termination order. In other words, a workman has no right to claim back wages from his employer as of right LIR No.1123/2017 Parmanand Vs. M/S Vector-E-Commerce Pvt. Ltd. Page 14 of 16 only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service.
12. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee.
12.5 In this case, the workman has not brought on record any positive evidence to prove his unemployment. Mere self-serving affidavit of the workman is wholly insufficient to discharge the burden. (Reliance placed on Range Forest Officer Versus S.T. Hadimani AIR 2002 Supreme Court 1147) 12.6 Considering the facts and circumstances of the case, it would not be appropriate to apply ordinary principle of reinstatement with full back wages. In considered view of the court, it would be just and reasonable to award a lumpsum monetary compensation of Rs.
5,00,000/- (Rupees five lacs only) to the workman towards full and final satisfaction of the dispute. Accordingly, compensation of Rs.5,00,000/- (Rupees five lacs only) is awarded to the workman. The compensation amount includes the litigation expenditure. The issues are decided accordingly.
13. In the light of above findings, the statement of claim of the workman is disposed of and the reference is answered in following terms:
"The management has terminated services of the LIR No.1123/2017 Parmanand Vs. M/S Vector-E-Commerce Pvt. Ltd. Page 15 of 16 workman illegally and unjustifiably. Thus, the workman is entitled to claim compensation from the management. A lumpsum amount of compensation of Rs.5,00,000/- (Rupees five lacs only) would meet the end of justice. The management shall pay the compensation amount to the workman within six weeks from the date when the award becomes enforceable, failing which the same shall carry an interest @ 9% per annum"
14. A copy of the Award be sent to the Competent Authority/ Govt. of NCT of Delhi for publication as per rules.
File be sent to record room for consignment after due compliance of the order.
Digitally signed by SUJIT Pronounced in open Court today SUJIT SAURABH Date: i.e. 21.12.2024 SAURABH 2024.12.21 17:56:20 +0530 (SUJIT SAURABH) Presiding Officer, Labour Court-IX Rouse Avenue Court Complex, Delhi 21.12.2024 LIR No.1123/2017 Parmanand Vs. M/S Vector-E-Commerce Pvt. Ltd. Page 16 of 16