Delhi District Court
And Its vs Sri Kishan Bhageria And Others 1988 (56) ... on 6 December, 2010
IN THE COURT OF DR. T. R. NAVAL ADDITIONAL
DISTRICT & SESSIONS JUDGE / PRESIDING OFFICER
LABOUR COURT KARKARDOOMA COURTS, DELHI.
ID NO.15/10 (New) 1007/98(Old)
Date of Institution : 06.07.1998
Date of Arguments: 22.11.2010
Date of Award : 06.12.2010
IN THE MATTER BETWEEN:
M/s Hindustan Computers Ltd.
801, Sidharth,
96 Nehru Place, New Delhi-19
The management
AND ITS WORKMAN
Shri Om Prakash Kalia
C/o Delhi Labour Union,
Aggarwal Bhawan
G.T. Road, Tis Hazari,
Delhi-54 The workman
AWARD
The Secretary (Labour), Government of NCT of Delhi
vide its order No.F.24(2540)/98-Lab./20999-21003 dated
01.07.1998 referred an industrial dispute between the above
mentioned parties to the Labour Court with the following
terms of reference:
"Whether the refusal of duties to Sh. Om Prakash Kalia
at Delhi is illegal and/or unjustified, and if so, to what
relief is he entitled and what directions are necessary
in this respect?"
ID No.15/10 Page 1 of 26
2. The facts in brief of the workman case,are that he
joined the management on 29.04.1987 and his basic salary
was Rs.1100/- per month besides, other allowances as per
appointment letter dated 14.04.1987. He had been working
with the management efficiently and to the entire
satisfaction of the management. The management entered
into an agreement with a puppet labour union on 10.11.1995
for closure of Noida unit of the management against the
principles of natural justice as the management was having
sufficient business and was earning huge profits. The
workman was not a party of that agreement. The
management asked the Engineers of the Noida unit either to
resign of their own or face the transfer orders to far off
places. The management also paid huge amount to the
labourers working at Noida unit. The six Engineers jointly
wrote a letter dated 18.01.1996 to the management but the
management did not accede to their request. Three of the
Engineers resigned and remaining Engineers including
workman refused to resign. The management did not allow
the workman to enter in his office and perform his duties
w.e.f. 01.02.1996. However, subsequently, he received a
letter dated 29.02.1996 regarding his transfer from Delhi
office to Cochin office. The order of transfer was illegal and
against the code of conduct and prescribed rules. The
management was aware that the workman was about 50
years of age and his wife was ailing who required constant
aid of her husband and it was not possible for the workman
to work at a distant place of country at the fag end of his
age. His transfer was consequent upon his refusal to resign
ID No.15/10 Page 2 of 26
and to victimize him despite of the fact that the management
was having many units in Northern India. The management
neither served him any memo nor issued any charge sheet
and no domestic inquiry was conducted against him. After
receiving his notice dated 31.08.1996 through his union, the
management issued him a charge sheet dated 30.09.1996
and conducted a fake inquiry but failed to communicate him
any final decision of inquiry. Neither subsistence allowance
was paid to him nor he was afforded proper opportunity of
being heard by the inquiry officer. The management did not
send any reply of the notice dated 31.08.1996. He raised an
industrial dispute before the conciliation officer, but the
conciliation proceedings resulted into failure due to non
cooperative attitude of the management. He has been
without employment since 01.02.1996. It has been prayed
that an award may be passed in his favour for his
reinstatement in service with full backwages and
consequential relief alongwith the cost of litigation.
3. The management admitted that Shri O. P. Kalia was
employed by the management as a Customer Engineer. The
management contested his case on the ground that he is not
covered under the definition of workman as provided U/s 2
(s) of the Industrial Disputes Act, 1947, here in after referred
to as the Act. He is a highly qualified Engineer who worked
and discharged his duties with the management as Customer
Engineer at the level of the Sr. Executive in the P-II Scale.
The nature of his duties and responsibilities were of a
managerial, administrative and supervisory in nature which
included recommending the improvement of quality of
ID No.15/10 Page 3 of 26
products, controlling and supervising the functioning of the
testing and repairing department, supervising/getting the
design/systems/testing cards related problems diagnosed
and rectified, ensure quality control check of products
required by the production department, etc. Being a senior
level Customer Engineer he was also having the
responsibility of achieving the target organisation by
production. He was getting professional allowance @ Rs.
500/- per month and executive allowance @ Rs. 2200/- per
month which are not paid to the non executive
cadre/workman cadre employees. He was lastly employed at
Noida as a Customer Engineer and he was relieved of his
duties pursuant to his transfer to the Cochin. Therefore, he
could have raised the dispute either at Noida or at Cochin
and not at Delhi. Therefore, the present reference by the
appropriate government was sent without jurisdiction. He
was transferred because all the business/commercial
production activities of the management came to an end.
Moreover, as per the terms and condition of the management
the claimant was liable for transfer to any of the division of
the management. He deliberately neglected compliance of
the transfer order and failed to join his duties there despite of
many intimation / letters sent to him. This amounted to
abandonment of his duties. He also abandoned his inquiry
and stopped appearing inspite of repeated communications
by the inquiry officer. He has already attained the age of
superannuation as per terms of Clause 13 of the appointment
letter dated 14.04.1987, on attaining the age of 55 years, on
15.05.2000. He has been gainfully employed. The
management denied all other allegations and prayed for
ID No.15/10 Page 4 of 26
dismissal of statement of claim.
4. The workman in his rejoinder controverted the
contentions made in the written statement and reiterated the
averments made in the statement of claim.
5. On the pleadings of the parties, following issues were
framed:
1. Whether claimant is a workman?
2. Whether business activities of management
came to an end long back if so, to what effect?
3. Whether inquiry held by the management is
not fair and proper?
4. Whether services of claimant were terminated
illegally and/or unjustifiably?
5. Relief.
6. In support of his case, the workman examined himself
as WW1. He filed and proved his affidavit as Ex.WW1/A and
placed reliance on documents Ex. WW1/1 to Ex. WW1/25.
In order to prove its defence, the management
examined Shri Ashok Kumar Sharma as MW1. He filed and
proved his affidavit as Ex. MW1/A and proved documents Ex.
MW1/1 to Ex. MW1/8. MW1 was re-examined and he filed and
proved his affidavit as Ex.MW1/B and placed reliance on
documents Ex. MW1/1 to Ex. MW1/10.
7. I have heard the arguments of Authorized
Representative of the Workman and Counsel for the
management and perused the file.
ID No.15/10 Page 5 of 26
8. On perusal of the pleadings of the parties, analysing
evidence and material placed on record and considering the
arguments addressed by Counsels/Authorised
Representatives for the parties, I have formed my opinions on
the issue and that are discussed here in below:
9. At the outset it is made clear that after settlement of
issues on 04.08.2000, my learned predecessor ordered for
treating Issue No.3 as Preliminary Issue. However, the
parties adduced their evidence on all the issues and counsels
for both the parties submitted on 22.11.2010 that this case
may be decided finally as they had already adduced their
evidence on all the issues.
FINDINGS ON ISSUE NO.1
10. The burden to prove this issue was on the workman and
he had to prove that he is covered under the definition of the
workman. On the other hand the management had to rebut
the evidence of workman to prove that he is not covered
under the definition of workman. WW1 in his affidavit Ex.
WW1/A on this aspect deposed that he was taken into the
employment of management vide appointment letter dated
14.04.1987 on the post of Associate Customer Engineer (Tele
Communication Division). He joined the management on
29.04.1987 in the pay scale of Rs.610-2100 and his basic pay
was fixed as Rs.1100/-. He also proved his appointment
letter as Ex. D6. In his cross examination, he denied the
suggestion that he was discharging duties of supervisory
ID No.15/10 Page 6 of 26
nature.
11. MW1 in his affidavit Ex. MW1/A deposed that he was
holding a Senior Executive position as a Customer Engineer
in P-II level and he was discharging the
supervisory/managerial responsibilities and duties including
supervision and control of the staff reporting to him,
recommending the improvement of quality of products,
controlling and supervising the functioning of the testing and
repairing department, supervising/getting the
design/systems/testing cards related problems diagnosed
and rectified, ensure quality control check of products
required by the production department, etc. Besides, he was
also having responsibility for achieving the target of
organisation by production. The management was also
paying him Rs.500/- per month as Professional Allowance and
Rs.2200/- per month as Executive Allowance. In cross-
examination he admitted that work of Executive Customer
Engineer was of skilled nature and the name of his post was
Customer Engineer. He denied the suggestion that no
employee was working under his control and supervision. He
stated that 7 or 8 persons were working under his control and
supervision. He could not tell the name of any person who
was working under control and supervision of Shri O. P. Kalia.
He explained that he told the number of employees under
Shri Om Prakash Kalia because the post of Customer
Engineer required the supporting staff. He continued to
admit that he did not see any document to know the person
who was working under Shri Om Prakash Kalia. He expressed
his ignorance if Shri Om Prakash Kalia was not having any
ID No.15/10 Page 7 of 26
power to appoint or transfer any employee or to issue memo
or sanction leave or take disciplinary action against any
employee or to settle the dispute of the management with
third party. He admitted that Shri Om Prakash Kalia was not
operating any account of management.
12. Counsel for management argued that on the basis of
duties and responsibilities which Shri Om Prakash Kalia was
performing he is covered under the definition of workman.
He relied on a case National Engineering Industries Ltd.
vs. Sri Kishan Bhageria And Others 1988 (56) FLR 148. It
was observed by the Supreme Court that:
"Bearing in mind the aforesaid indication, it would be
necessary to discuss some decisions of this Court. In All
India Reserve Bank Employees Association v. Reserve
Bank of India (2) this Court dealing with certain types of
employees observed "These employees distribute work,
detect faults, report for penalty, make arrangements for
filing vacancies, to mention only a few of the duties
which are supervisory and not merely clerical. At page
46 of the report Hidayatullah, J. as the learned Chief
Justice then was observed that the work in a Bank
involved layer upon layer of checkers and checking is
hardly supervision but where there is a power of
assigning duties and distribution of work there is
supervision (emphasis supplied). There the Court
referred to a previous decision in Llyods Bank Ltd. v.
Pannalal Gupta (3) where the finding of the Labour
Appellate Tribunal was reversed because the legal
inference from proved facts was wrongly drawn and it
was reiterated that before a clerk could claim a special
allowance payable to a supervisor, he must prove that
he supervises the work of some others who are in a
sense below him. It was pointed out by
Hidayatullah, J. that mere checking of the work of
others is not enough because this checking was a
part of accounting and not of supervision and the
work done in the audit department of a bank was
ID No.15/10 Page 8 of 26
not supervision (emphasis supplied).
In Burmah Shell Oil Storage and Distribution Co. of
India v. Burmah Shell Management staff Association and
others (4) this Court observed that a workman must be
held to be employed to do that work which is the main
work he is required to do, even though he may be
incidentally doing other types of work. Therefore, in
determining which of the employees in the
various categories are covered by the definition
of 'workman' one has to see what is the main or
substantial work which he is employed to do. In
The Punjab Co-operative Bank Ltd. vs. R.S. Bhatia
(Dead) Through Lrs (5) it was held that the
accountant was supposed to sign the salary bills
of the staff even while performing the duties of a
clerk. That did not make the respondent
employed in a managerial or administrative
capacity. The workman was, therefore, in that context
rightly held as a clerk.
In P. Maheshwari v. Delhi Administration and
others (6) the question whether a person was
performing supervisory or managerial work was the
question of fact to be decided bearing in mind the
correct principle. The principle therefore is, one
must look into the main work and that must be
found out from the main duties. A supervisor was
one who could bind the company to take some
kind of decision on behalf of the company. One
who was reporting merely as to the affairs of the
company and making assessment for the purpose
of reporting was not a supervisor. See in this
connection Black's Law Dictionary, Special Deluxe, Fifth
Edition. At page 1290. "Supervisor" has been
described, inter alia, as follows:
In a broad sense, one having authority over
others, to superintend and direct.
The term 'supervisor' means any individual
having authority, in the interest of the employer,
to hire, transfer, lay off, recall promote,
discharge, assign, reward, or discipline other
employees, or responsibility to direct them or to
adjust their grievances, or effectively to
recommend such action if, in connection with the
foregoing the exercise of such authority is not a
ID No.15/10 Page 9 of 26
merely routine or clerical nature, but requires the
use of independent judgment.
Reference may be made to the observation of this
Court in Ved Prakash Gupta v. M/s Delton Cable India
(P) Ltd. (7). There on facts a Security Inspector was
held to be a workman. At page 575 of the report this
Court referred to the decision in Llyods Bank Ltd. v.
Panna Lal Gupta (supra) and also the observations of
this Court in Hind Construction and Engineering
Company Ltd. v. Their Workmen. In that case the
nature of the duties performed by the appellant showed
that the substantial part of the work of the appellant
consisted of looking after the security of the factory and
its property by deputing the watchmen working under
him to work at the factory gate or sending them to
watch-towers or around the factory or to accompany
visitors to the factory and making entries in the visitors
register as regards the visitors and in the concerned
registers as materials entering into or going out of the
premises of the factory. There it was found that he had
no power to appoint.
In the instant case the evidence have been
summarised by the Division Bench. Reference may be
made to pages 65, 73, 80, 84 to 94, 95, 96 and 97 of
the Paper Book which indicate the nature of duties
performed by the respondent no.1 herein. His duties
were mainly, reporting and checking up on behalf
of the management. A reporter or a checking
clerk is not a supervisor. The respondent herein
does not appear to us doing any kind of
supervisory work. He was undoubtedly checking
up on behalf of the employer but he had no
independent right or authority to take decision
and his decision did not bind the company. In
that view of keeping the correct principle of law
in mind the Division Bench has come to the
conclusion taking into consideration the evidence
recorded before the Labour Court that the
respondent is a workman and not a supervisor.
That conclusion arrived at in the manner indicated
above cannot, in our opinion, be interfered with under
Article 136 of the Constitution-
[Emphasis supplied]."
ID No.15/10 Page 10 of 26
13. It would be appropriate to reproduced the provisions of
application U/s 2 (s) of the Act:
"2.Definitions.- In this Act, unless there is anything
repugnant in the subject or context. -
(a) to (r)***
[(s) "workman" means any person (including an
apprentice) employed in any industry to do any manual,
unskilled, skilled, technical, operational, clerical or
supervisory work for hire or reward, whether the terms
of employment be express or implied, and for the
purposes of any proceeding under this Act in relation to
an industrial dispute, includes any such person who has
been dismissed, discharged or retrenched in connection
with, or as a consequence of, that dispute, or whose
dismissal, discharge or retrenchment has led to that
dispute, but does not include any such person -
(i) ***
(ii)***
(iii)who is employed mainly in a managerial or
administrative capacity, or
(iv)who, being employed in a supervisory capacity,
draws wages exceeding one thousand six hundred
rupees per mensem or exercises, either by the nature
of the duties attached to the office or by reason of the
powers vested in him, functions mainly of a
managerial nature.]"
14. Keeping in view the cross examination of MW1,
material portion of which has been reproduced here in above
in paragraph No. 11 and applying the principles of law in
National Engineering Industries Ltd. vs. Sri Kishan
Bhageria And Others (supra), I came to the conclusion that
it stands established on record that Shri Om Prakash Kalia is
covered under the definition of workman as he was not solely
performing the duties of supervisory, administrative and
managerial in nature. Besides, opportunity was afforded to
the management to cross examine workman on this part but
management only put one suggestion regarding the nature
ID No.15/10 Page 11 of 26
of duties he was performing and the workman denied that
he was performing duties of supervisory and managerial
nature. On the other hand, MW1 in his cross-examination
admitted material points which includes Shri Om Prakash
Kalia within the definition of workman or the nature of
admission made in cross examination of MW1 are of such
nature which have established that MW1 was not correctly
aware about the nature of duties he was performing.
In view of the above reasons, discussion and evidence
on record and particularly discussed here in above, issue no.
1 is decided in favour of the workman and against the
management and it is held that Shri Om Prakash Kalia is
covered under the definition of workman as provided U/s 2
(s) of the Act.
FINDINGS ON ISSUE NO.2:
15. The burden to prove this issue was on the management
and it had to prove that the business activities of the
management came to an end long back. MW1 in his affidavit
Ex. MW1/B deposed about the change of name of
management firstly from M/s HCL Ltd. to M/s HCL Office
Automation Ltd. w.e.f. 08.02.1996 and from M/s HCL Office
Automation Ltd. to M/s Universal Automation Ltd. MW1 also
proved copy of letter dated 30.03.2002 written for and on
behalf of HCL Office Automation Ltd. to Asst. Commissioner
(A) I, Trade Tax Noida. This letter is regarding surrender of
Sales Tax Registration Certificate alongwith the registration
certificate granted U/s 4 B w.e.f. 13.02.1996. In his affidavit
Ex. MW1/A, MW1 deposed that name of M/s HCL Ltd. was
ID No.15/10 Page 12 of 26
changed from HCL Office Automation Ltd. w.e.f. 08.02.1994
and all the factories, i.e. Gurgaon, Noida, and Dehradoon
were closed down long back. In his cross examination he
denied the suggestion that management was running its
activities at other places. There is no another evidence on
this aspect. Workman in his statement of claim himself
stated about closure of the Noida unit of the management.
MW1 in his cross examination stated that management
company was lying closed since 30.06.1998.
On the basis of pleadings, evidence and material placed
on record, I am of the view that it stands established on
record that business activities of the management came to
an end long back at premises situated at Noida. Accordingly,
this issue is decided in favour of the management and
against the workman.
FINDINGS ON ISSUE NO.3:
16. The burden to prove this issue was on the
management. It had to prove that management conducted a
fair and proper inquiry against the workman. In his
statement of claim, workman alleged that charge sheet dated
30.09.1996, Exhibit WW1/M7, was served on him. He was
not paid subsistence allowance during the pendency of
inquiry. Inquiry officer called him to attend proceedings of
inquiry on 09.06.1997 vide letter dated 31.05.1997 which
was posted on 09.06.1997 itself. Proceedings of domestic
inquiry were proved as Ex. WW1/M8. It was further pleaded
that he was not informed about the result of the inquiry
proceedings. MW1 in his cross examination admitted that
ID No.15/10 Page 13 of 26
after receipt of notice of the workman dated 31.08.1996 by
the management, the management issued charge sheet
dated 30.09.1996 to Shri Om Prakash Kalia. He further stated
that Shri Om Prakash Kalia did not participate in inquiry. The
inquiry officer did not give final decision. As the inquiry
officer did not give final decision therefore, no report was
sent to Shri Om Prakash Kalia. He also admitted that no
subsistence allowance was paid to the workman. He
disclosed the reason for non payment of subsistence
allowance as absence of the workman during inquiry
proceedings. Thus the cross examination of MW1 has
established that inquiry officer has failed to conduct just fair
and proper inquiry against the workman, rather the workman
remained incomplete.
In view of the above reasons, discussion and evidence
on record and particularly discussed here in above, issue no.
3 is decided in favour of the workman and against the
management.
FINDINGS ON ISSUE NO.4:
17. The burden to prove this issue was on the workman and
he had to prove that his services were terminated either
illegally and/or unjustifiably. Length of service of the
workman from 29.04.1987 to 31.01.1996 is not in dispute. It
has already been held here in above that a charge sheet was
issued by the workman but the inquiry could not be
completed. It is not a case of the management that services
of the workman were retrenched after issuance of notice or
offering or paying notice pay or retrenchment compensation.
ID No.15/10 Page 14 of 26
It is the case of management that Shri Om Prakash Kalia was
transferred from Noida to Cochin on closure of its unit at
Noida vide transfer letter dated 20.01.1996 with immediate
effect. Management also proved office order regarding
transfer of his services as MW1/5; letter dated 01.02.1996 as
Ex. WW1/M2; annexure of office order dated 20.01.1996 as
Ex. WW1/M3. MW1 also deposed that workman failed to
comply the said order inspite of repeated intimation to him
including letter dated 26.02.1996 as Ex. WW1/5; dated
15.03.1996 as Ex. MW1/M6. WW1 in his affidavit Ex. WW1/A
on this aspect stated that he shocked to receive a letter
dated 29.02.1996 from the management informing him about
his transfer from Delhi to Cochin.
18. It was pleaded on behalf of the workman that order of
his transfer was illegal and against the code of conduct and
against the rules prescribed under the law. Besides, he was
aged more than 50 years having a ailing wife to look after.
19. On the other hand, it has been argued on behalf of the
management that it is a prerogative of the management to
transfer its employees. Keeping in view the exigency of
workman and other administrative reason, the management
was empowered to do so. In support of his arguments
counsel for the management relied on a case Shri Rajendra
Roy vs. Union of India (UOI) and Anr.
MANU/SC/0430/1993 AIR 1993 SC 1236. It was held by the
Apex Court that:
"After considering the respective contentions of the
parties, it appears to us that the appellant has not been
ID No.15/10 Page 15 of 26
able to substantiate that the impugned order of transfer
was passed mala fide against him for an oblique
purpose and/or for wrecking vengeance against him
because the respondent No.2 was anxious to get rid of
him and he seized the opportunity of transferring him
from Delhi to Calcutta by transferring Shri Patra back to
Orissa from Calcutta. It is true that the order of transfer
often causes a lot of difficulties and dislocation in the
family set up of the concerned employees but on that
score the order of transfer is not liable to be struck
down. Unless such order is passed mala fide or in
violation of the rules of service and guidelines for
transfer without any proper justification, the Court and
the Tribunal should not interfere with the order of
transfer."
20. Counsel for management further relied on a case Shri
Gauri Dutt vs. Municipal Corporation of Delhi and Anr.
MANU/DE/2194/2009. Delhi High Court held that:
"In Gujrat Electricity Board and Anr. v. Atmaram
Sungomall Poshani MANU/SC/0200/1989: AIR 1989 SC
1433, the Supreme Court observed:
Transfer of a Government servant appointed to a
particular cadre of transferable posts to the other is an
incident of service. No Government servant or
employee of Public undertaking has legal right for being
posted at any particular place. Transfer from one place
to another is generally a condition of service and the
employee has no choice in the matter. Transfer from
one place to other is necessary in public interest and
efficiency in the public administration. Whenever, a
public servant is transferred he must comply with the
order but if there be any genuine difficulty in
proceeding on transfer it is open to him to make
representation to the competent authority for stay,
modification or cancellation of the transfer order. If the
order of transfer is not stayed, modified or cancelled the
concerned public servant must carry out the order of
transfer. In the absence of any stay of the transfer
order public servant has no justification to avoid or
evade the transfer order merely on the ground of
having made a representation, or on the ground of his
ID No.15/10 Page 16 of 26
difficulty in moving from one place to the other. If he
fails to proceed on transfer in compliance to the transfer
order, he would expose himself to disciplinary action
under the relevant rules, as has happened in the instant
case. The respondent lost his service as he refused to
comply with the order of his transfer from one place to
the other.***
Furthermore, nothing has come on record to prove
the mala fide of the respondent apart from mere
averments made by the petitioner in his statement that
the transfer is a malafide transfer. It is well settled that
the plea of mala fide should be proved by bringing on
record definite material and cogent evidence in this
regard. No mala fide could be deduced on the basis of
vague suggestions. There is no reason to read between
the lines and come to the conclusion that the impugned
order of transfer was punitive or malafide."
21. Counsel for management further relied on a case N. K.
Sharma & Anr. vs. Presiding Officer & Anr.
MANU/DE/0031/2000. It was held by High Court of Delhi that:
"Simply because some averments are made in the onex
and the order of transfer is leveled as discriminatory
and/or as actuated by mala fides, it does not become
discriminatory or cannot be said to have been passed
on account of mala fides. To make out a case for
interference for a matter of records there should be
concrete material which should be unimpeachable in
character. It was so held in 1989 SLR 593 and the
workman in this case has not been able to produce
concrete material which could be unimpeachable in
character. No special ground of vindictiveness has been
established in this case by the workman and in the
absence of any such evidence it is not possible to draw
conclusion of vindictiveness against him on the part of
the management. From the statements of the
witnesses produced by the parties in this case and on
the basis of the points urged before me I am of the
opinion that the order of transfer of the workman does
not call for any interference by this Tribunal."
ID No.15/10 Page 17 of 26
22. So far as principles of law in above referred cases are
concerned, there is no dispute that it is the prerogative of
management to transfer the services of workman from its
one unit to another unit or office keeping in view the
exigency of workman and administrative reasons. The
workman has neither alleged or proved the malafideness on
behalf of the management in this regard.
23. It has been argued on behalf of the workman that
workman was aged more than 50 years. He was having
ailing wife to look after and the management did not
considered his difficulties as it was very difficult for him to
join his duties at Cochin, admittedly a place far away from
Noida. Besides, the management did not care to complete
the inquiry and to find out the reason for absence of the
workman at the transferred place and therefore, a legal right
of the workman has been violated.
24. Counsel for the workman relied on a case The Imperial
Tobacco Company of India Ltd. v. Its Workmen,
Respondents AIR 1962 SC 1348. It was held therein that:
"There can be no doubt in this case that the inquiry was
not conducted in the manner required by the Standing
Orders of the appellant. Even though Akhileshwar
Prasad had withdrawn from the inquiry-whether rightly
or wrongly-the inquiry should have been completed and
all evidence should have been taken ex parte.
Thereafter it was the duty of the branch manager to
appraise that evidence and record his conclusion as to
what misconduct had been proved and also to decide
what punishment he intended to inflict. Thereafter he
had to ask the employee what he had to say against the
ID No.15/10 Page 18 of 26
intended punishment and it was only after taking the
explanation of the employee as to the intended
punishment that he could pass an order punishing him.
The fact that Akhileshwar Prasad withdrew from
the inquiry at an early stage did not absolve the
inquiry officer from concluding the inquiry by
taking evidence exparte. It also did not absolve
the branch manager from follwoing the procedure
prescribed in C1. 18 (b) (10) of the Standing
Orders. Even though Akhileshwar Prasad had
withdrawn from the inquiry, the branch manager
should have appraised the evidence, recorded his
conclusions and the punishment he intended to
inflict and should have called upon Akhileshwar
Prasad to say what he wanted to say against the
intended punishment. It was only thereafter that
he could proceed to punish Akhileshwar Prasad.
What happened in this case however was that as soon
as Akhileshwar Prasad withdrew from the inquiry, it was
closed and the branch manager proceeded to pass the
order of dismissal which we have already set out above,
without seeing that the inquiry was completed and all
that was required by Cl. 18(b) (10) to be done was
done. In the circumstances the labour court was right
in holding that the inquiry which resulted in the
dismissal of Akhileshwar Prasad in this case was not a
valid inquiry as required by the Standing Orders of the
appellant."
[Emphasis added]
25. On the other hand it has been argued on behalf of the
management that case law relied on by the counsel for
workman is not relevant because in the given circumstances,
the non joining of duties by the workman amounted to
abandonment of his services. He relied on a case Gian
Chand vs. Secretary (Labour) Delhi Administration
MANU/DE/0663/1994, 1995(70) FLR 880. It was held by Delhi
High Court that:
ID No.15/10 Page 19 of 26
"In the Counter Affidavit filed by Respondent No.1, it
has been stated that the Appropriate Government has
carefully considered the rival contentions of the parties
and their respective documents produced on record and
there is no error of jurisdiction in passing the impugned
order. It has further been stated there in that after
consideration of these documents the appropriate Govt.
has come to the conclusion that the petitioner No.1's
termination, as alleged by him, is not a termination but
in fact, an abandonment of service by the petitioner
himself. The petitioner has been transferred in
Delhi itself and admittedly he has not joined his
duties there. In this fact and circumstances of this
case and documents available on record, the
appropriate Government has rightly came to the
conclusion that there is abandonment of services by the
petitioner no.1 himself and not termination."
[Emphasis added]
26. On the other hand counsel for workman argued that
non joining of duties by the workman does not amount to
abandonment of services. He relied on a case Gangaram
K. Medekar vs. Zenith Safe Manufacturing Company
and others 1996 (1) L.L.N.703. Bombay High Court held
that:
"In cases of voluntary abandonment of service, it is a
matter of intention. It depends on facts of each case. It
is a matter of inference being drawn on given set of
facts. The employer unilaterally cannot say that the
workman is not interested in employment. It is for this
reason that a domestic enquiry is required to be held.
Even before the Labour Court, the employer is required
to prove clearly by evidence that the workman had
voluntarily abandoned his service. If the Labour Court
finds that there is no evidence led by the employer and
if the Labour Court finds that it is word against word,
then the benefit goes to the workman and not the
employer. The primary onus to lead evidence to prove
voluntary abandonment of service is on the employer."
ID No.15/10 Page 20 of 26
27. Keeping in view the principles of law laid down in above
referred cases relied on by counsel for management
National Engineering Industries Ltd. vs. Sri Kishan
Bhageria And Others (supra), Shri Rajendra Roy vs.
Union of India (UOI) and Anr. (supra), Shri Gauri Dutt
vs. Municipal Corporation of Delhi and Anr. (supra), N.
K. Sharma & Anr. vs. Presiding Officer & Anr. (supra),
Gian Chand vs. Secretary (Labour) Delhi
Administration (supra), and counsel for workman The
Imperial Tobacco Company of India Ltd. v. Its
Workmen, Respondents (supra) and Gangaram K.
Medekar vs. Zenith Safe Manufacturing Company and
others (supra), and applying those on the facts of present
case, I came of the conclusion that non reporting of duties
at Cochin by workman cannot be treated as abandonment of
services. The reason which support my decision are that
workman had been making efforts to join his duties since the
date when duties were refused to him on 01.02.1996.
28. Secondly, the management has failed to complete
inquiry and to find out the actual cause of non joining of
duties by the workman. Thus although the management did
not terminate services of the workman in writing yet it
resulted into denying the duties to the workman. Lastly, the
principles of law laid down in case Gian Chand vs.
Secretary (Labour) Delhi Administration (supra) relied on
by counsel for management will not provide any benefit as in
that case transfer was for Delhi to Delhi whereas in the
present case it was for Noida to Cochin.
In view of the reasons, discussion and evidence on
ID No.15/10 Page 21 of 26
record and particularly discussed here in above, it stands
established on record that denial/refusal of duties to Shri Om
Prakash Kalia was neither legal nor unjustifiable and it
amounted to termination of services of the workman in
violations of provisions of Section 25 F of the Act and
principles of natural justice as the management failed to
prove the reason of non joining of duties at Cochin by the
workman. Accordingly, this issue is decided in favour of the
workman and against the management.
FINDINGS ON ISSUE NO.5:RELIEF:
29. It has been argued on behalf of the management that
before transferring the services of workman from Cochin, he
was transferred from Delhi to Noida and therefore, it was the
duty of the workman to file his case either at Noida or at
Cochin and not at Delhi. On the other hand it was argued
that Head Office of the workman was situated at Delhi. All
the letters were issued from the office situated at Delhi,
workman was a resident of Delhi therefore, he initiated legal
action in Delhi. On perusal of file, I find that neither of the
parties adduced any evidence on this aspect. Even their
affidavits are silent. Therefore, no observation on this point
is given as presumably it was not pressed.
30. It has also been argued on behalf of the management
that workman is not entitled for the relief of reinstatement in
service as he has already attained the age of superannuation
of service as per the rules and regulations of the
management and secondly, that he had been gainfully
ID No.15/10 Page 22 of 26
employed elsewhere.
31. On perusal of statement of WW1, Shri Om Prakash Kalia
recorded on 08.02.2002, I find that he told his age as 59
years. Eight years have passed. On calculation, his age
comes to about 67 years as on this day. WW1 on this aspect
in his affidavit deposed that date of birth of workman was
15.05.1995. As per terms of Clause 13 of appointment dated
14.04.1987, he completed age of 55 years on 15.05.2000. On
perusal of Clause 13 of appointment letter Ex. D6, I find that
it has been mentioned therein that workman will be retired
from services on attaining the age of superannuation age of
55 years. Thus, it has been established on record that
workman has attained the age of superannuation and he is
not entitled to get relief of reinstatement in service.
32. On perusal of cross-examination of WW1, I find that he
admitted that he had been working to maintain his family by
doing the work of T.V. Repairs, etc.
33. In case of Kishan Swaroop Vs. Project and
Equipment Corporation of India Ltd.,MANU/DE/3010/2007
it was held by Delhi High Court that in each and every case of
illegal and unjustified termination of services, the relief of
reinstatement and full back wages is not to be granted
automatically and the Labour Court can mould the relief by
granting lump sum compensation in lieu thereof.
34. In case of Allahabad Jal Sansthan v. Daya Shankar
Rai,(2005) 5 SCC 124, it was held that:
ID No.15/10 Page 23 of 26
"6. A law in absolute terms cannot be laid down as to in
which cases, and under what circumstances, full back wages
can be granted or denied. The Labour Court and/or Industrial
Tribunal before which industrial dispute has been raised,
would be entitled to grant the relief having regard to the
facts and circumstances of each case. For the said purpose,
several factors are required to be taken into consideration ".
35. In case of Hindustan Tin Works (P) Ltd. v.
Employees (1979) 2 SCC 80 a three-Judge Bench of Apex
Court laid down:
"11. In the very nature of things there cannot be a
straitjacket 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. But the discretion must be exercised in a
judicial and judicious manner. The reason for exercising
discretion must be cogent and convincing and must appear
on the face of the record. When it is said that something is
to be done within the discretion of the authority, that
something is to be done according to the rules of reason and
justice, according to law and not humour. It is not to be
arbitrary, vague and fanciful but legal and regular***"
36. As the management has proved that business activities
of the management has been closed down and workman has
attained the age of superannuation, therefore, it would not
be feasible to reinstate the workman in his services. As held
in cases, Kishan Swaroop Vs. Project and Equipment
Corporation of India Ltd.(supra), Allahabad Jal
Sansthan v. Daya Shankar Rai,(supra) Hindustan Tin
Works (P) Ltd. v. Employees(supra), it would be just, fair
and appropriate, if lump sum compensation is awarded to the
workman in lieu of reinstatement in service and back wages.
ID No.15/10 Page 24 of 26
ORDER
37. Consequent upon the decisions of all the issues in favour of the workman and against the management, terms of reference are answered in favour of the workman and against the management and it is held that as refusal of duties to Shri Om Prakash Kalia by the management was neither legal nor justifiable. It amounted to termination of services of workman illegally and unjustifiably. Therefore, workman is entitled to get relief of lump sum compensation in the present case.
38. As the workman has suffered due to illegal action of the management and he has suffered legal injury, I am of the view that considering the salary, length of service and all other relevant factors, it would be just, fair and appropriate if an amount of Rs.1,00,000/- (Rupees One Lac Only) is awarded in favour of workman Shri Om Prakash Kalia and against the management in lieu of his reinstatement in service and back wages. It is made clear that this amount will be apart from the terminal benefits, if any, the workman is entitled to get from the management as per rules.
39. The appropriate Government is advised to direct the management to pay a sum of Rs.1,00,000/- (Rupees One Lac Only) to the workman within 30 days from the date of publication of this award, failing which, the workman will also be entitled to get future interest @ 8% from the date of award till realization of the said amount.
ID No.15/10 Page 25 of 26Award is passed accordingly.
40. Copy of award be sent to Secretary Labour, Govt. of NCT, Delhi for publication as per rules.
File be consigned to Record Room.
Announced in the open court this the 6th day of December, 2010.
(DR. T. R. NAVAL) Additional District & Sessions Judge Presiding Officer: Labour Court Karkardooma Courts,Delhi.
ID No.15/10 Page 26 of 26