Delhi District Court
Sh. Keshav Dayal vs M/S. Luminous Power Technologies Ltd on 14 March, 2022
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
PRESIDING OFFICER, LABOUR COURT-IX
ROUSE AVENUE COURTS COMPLEX, NEW DELHI
LID No. 823/16 CNR No. DLCT13-008175-2016
Sh. Keshav Dayal
JG IIIrd 76A Vikas Puri
New Delhi-110018 ......Workman
Versus
M/s. Luminous Power Technologies Ltd.
C-56, Phase-II, Industrial Area
Mayapuri, New Delhi-110064 ......Management
Date of Institution : 08.07.2016
Date of Award reserved on : 14.03.2022
Date of Award : 14.03.2022
STATEMENT OF CLAIM FILED ON BEHALF OF
WORKMAN
AWAR D
BRIEF FACTS AND REASONS FOR DECISION :-
LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 1-32
1. Vide this Award the statement of claim of the workman filed by him directly before the present Court u/Sec. 2A of Industrial Disputes Act, 1947 shall be disposed which was enabled by appropriate Government/Office of Labour Commissioner vide certificate Ex.WW1/6 dated 03.06.2016. The Labour Commissioner on failure of conciliation report has granted liberty to the workman to file the claim/dispute before the appropriate Labour Court/Industrial Tribunal.
2. The statement of claim was filed by the workman who has pleaded that he was working with management as 'Service Executive' since 01.04.2009 and his last drawn wages were Rs.17,779/- per month. The management did not provide allowance, leaves and when the workman has asked for said facilities then the management kept a grudge against him. In September 2015 management asked him to submit resignation and joined the management of contractor. Request for offer in writing was refused. The workman did not resign from the job. On 25.01.2016 the management again called the workman and asked him to resign and join the contractor as employee or face dire consequences which the workman had refused. On this the management had orally terminated the service of workman on LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 2-32 25.01.2016. His last drawn wages were Rs.17,779/- per month. No memo or chargesheet was issued to the workman. No compensation was paid despite serving the management for more than 6 years. The termination of workman was illegal who was not reinstated despite legal notice Ex.WW1/2 dated 03.02.2016 sent by the workman. The management had sent letter dated 02.02.2016 which was posted on 12.02.2016 and received on 16.02.2016 by creating false ground telling that the workman was not attending the assigned work since 23.01.2016 which was replied by the workman in February 2016 to take him back on the job. The management did not reinstate the workman. His service were terminated illegally and unjustifiably. No domestic inquiry was conducted. A claim before conciliation officer was filed where the management did not appear. Workman was unemployed since 25.01.2016. Hence the workman has prayed that his termination be held illegal with direction to the management to reinstate the workman with full back wages.
3. In reply the management has submitted that the workman was appointed as Service Executive vide appointment letter dated 28.04.2009. Initially the appointment on probation for one year. His work was not upto satisfaction due to which he was LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 3-32 never promoted and till his abandonment of service his designation remained same. Increment was given to the workman from time to time. Due to change of business strategy of the company, the competitive marketing scenario and to reduce the operating cost the management had decided to close down its various service centres across India including Delhi and NCR in the month of October 2015. It was decided that service centre shall be outsourced to the third party in a phased manner. A general office circular was issued by pasting in the notice board at Mayapuri service centre to all the employees about closure of service centre w.e.f 31.12.2015. The employee had to contact with HR department for full and final settlement within 15 days. The company had also entered into authorised service provider with the third party/M/s. Indian Power System for Mayapuri Delhi location on 18.05.2016. The service centre was operated from rented premises and vide letter dated 27.05.2016 to the landlord the premises were vacated on 15.06.2016. The lease was executed on 25.09.2013. The claimant had abandoned the service without assigning any reason since 23.01.2016. Leave was not applied and he was asked to join service vide letter dated 02.02.2016 posted on 12.02.2016. This letter was served on the workman. The outstanding dues of the workman were settled by the management LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 4-32 herein. The date of appointment of workman is admitted as correct as 01.04.2009 vide the appointment letter dated 28.04.2009. The last drawn salary is denied which is claimed by the workman as Rs.17,779/-. However management has not suggested in pleadings the actual last drawn salary. Other allegations of the workman about asking for resignation or to join other contractor was denied. Receipt of legal notice dated 03.02.2016 is denied. It is submitted that the management had called the workman for full and final settlement. It is submitted that claim of the workman is false and forged which is liable to be dismissed.
4. On the pleadings of the parties and averments made following issues are framed in the dispute on 28.10.2017 and one additional issue was also framed on 27.10.2018 which are renumbered:
1. Whether the management had closed its running/operating service centres? OPM
2. Whether services of workman were terminated illegally or unjustifiably by management? OPW
3. Relief
5. Workman/Sh. Keshav Dayal has got examined himself LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 5-32 as WW-1 being the sole witness in the case. WW-1 has relied on documents which are Ex.WW1/1 to Ex.WW1/6. WE was closed vide separate statement of AR dated 27.10.2018. Management has got examined MW-1 Sh. Rajesh Sharma, Assistant Manager. MW- 1 has relied on documents which are Ex.MW1/A to Ex.MW1/K and MW-2 Sh. Pravendra Kumar, Territory Service Incharge who has relied on document which is Ex.MW2/1 in defence and ME was closed vide separate statement of AR for management dated 24.12.2021.
6. AR for workman has relied on following citations:
(i) Triveni Glass Limited-A Company v. State of Uttar Pradesh dated 13.02.2008 from Hon'ble High Court of Allahabad at para no. 15, 16, 17, 20, 21, 25(6), 26 6.1 AR for management has relied on following citations:
(i) Pramod Kumar Tiwari v. Hindustan Fertilizers Corporation (1995) ILLJ 192 MP at para no. 6, 7, 8
(ii) Savani Transport Pvt. Ltd. v. Savani Transport Employees (1994) IILLJ 269 Ker at para 13 and 17
(iii) Dal Singar & Ors. v. Material Movement Pvt. Ltd. in W.P. (C) 4179/2011 dated 17.07.2018 at para 31
7. Final arguments are heard and record perused.
LID No. 823/16Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 6-32
8. The issue-wise findings are as follows:-
9. ISSUE NO. 11.Whether the management had closed its running / operating service centres? OPM
9.1 The burden of issue no. 1 is on the management. Section 25FFA r/w Section 25FFF of Industrial Disputes Act, 1947 laid down procedure for closing down an undertaking. The relevant provision of law is reproduced hereasunder:
Section 25FFA in The Industrial Disputes Act, 1947 25FFA. Sixty days' notice to be given of intention to close down any undertaking.-
(1) An employer who intends to close down an undertaking shall serve, at least sixty days before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking: Provided that nothing in this section shall apply to--
(a) an undertaking in which--
(i) less than fifty workmen are employed, or
(ii) less than fifty workmen were employed on an average per working day in the preceding twelve months,
(b) an undertaking set up for the construction of buildings, bridges, roads, canals, dams or for other construction work or project.
(2) Notwithstanding anything contained in sub- section (1), the appropriate Government may, if it is satisfied that owing to such exceptional circumstances as accident in the LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 7-32 undertaking or death of the employer or the like it is necessary so to do, by order, direct that provisions of sub-
section (1) shall not apply in relation to such undertaking for such period as may be specified in the order.] 25FFF. Compensation to workmen in case of closing down of undertakings. (1) Where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched: Provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed his average pay for three months. 1 Explanation. An undertaking which is closed down by reason merely of
(i) financial difficulties (including financial losses); or
(ii) accumulation of undisposed of stocks; or
(iii) the expiry of the period of the lease or licence granted to it; or
(iv) in a case where the undertaking is engaged in mining operations, exhaustion of the minerals in the area in which such operations are carried on; shall not be deemed to be closed down on account of unavoidable circumstances beyond the control of the employer within the meaning of the proviso to this sub section.] (1A) 2 Notwithstanding anything contained in sub section (1), where an undertaking engaged in mining operations is closed down by reason merely of exhaustion of the minerals in the area in which such operations are carried on, no workman referred to in that sub section shall be entitled to any notice or compensation in accordance with the provisions LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 8-32 of section 25F, if
(a) the employer provides the workman with alternative employment with effect from the date of closure at the same remuneration as he was entitled to receive, and on the same terms and conditions of service as were applicable to him, immediately before the closure;
(b) the service of the workman has not been interrupted by such alternative employment; and
(c) the employer is, under the terms of such alternative employment or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has not been interrupted by such alternative employment.
(1B) For the purposes of sub sections (1) and (1A), the expressions" minerals" and" mining operations" shall have the meanings respectively assigned to them in clauses (a) and
(d) of section 3 of the Mines and Minerals (Regulation and Development) Act, 1957 (67 of 1957 ).] (2) Where any undertaking set up for the construction of buildings, bridges, roads, canals, dams or other construction work is closed down on account of the completion of the work within two years from the date on which the undertaking had been set up, no workman employed therein shall be entitled to any compensation under clause (b) of section 25F, but if the construction work is not so completed within two years, he shall be entitled to notice and compensation under that section for every 1 completed year of continuous service] or any part thereof in excess of six months.] 9.2 The management has to show before the present Court that they have complied with the above provision of law. It is admitted case of management during the course of arguments and LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 9-32 in the pleading otherwise that they did not apply for prior permission from appropriate Government at least before 90 days before the intended closure in which reason of closure must have been mentioned. The management is not engaged in the exempted industries. However the management has submitted the arguments that though the defence of management is not of illegal termination but the management has validly closed its operation in the area Mayapuri, Delhi where the workman was employed. Management has relied on proviso to Section 25FFA(1) in which it is laid down that nothing in this Section shall apply to an undertaking in which there are less than 50 workmen are employed or less than 50 workman are employed on an average per working day in preceding 12 months. The management has submitted that in the industrial undertaking of the management at Mayapuri, Delhi the total number of workman employed were less than 50 therefore their case falls under exemption clause of Section 25FFA of Industrial Disputes Act, 1947 and therefore they have validly closed the undertaking. Hence the closure is valid and in accordance with law and therefore management has claimed its no liability to the claimant herein. Ld. AR for the claimant has argued that the management has stated the law erroneously. The correct law is that the total number of 50 or more workman must be LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 10-32 counted in the entire undertaking all over India as available with the management. In this regard the workman has relied on citation titled Triveni Glass Limited-A Company v. State of Uttar Pradesh dated 13.02.2008 from Hon'ble High Court of Allahabad at para no. 15, 16, 17, 20, 21, 25(6), 26 which are reproduced hereasunder:
15. Section 6-W of the U.P. Industrial Disputes Act provides the procedure for closure of an undertaking of an industrial establishment and requires the employer to seek permission of the State Government. It is similar to Section 25-0 of the Industrial Disputes Act, 1947. Section 6-V of the U.P. Industrial Disputes Act provides that the provisions of Section 6-W and 6-X shall apply to an industrial establishment pertaining to an industry in which not less than 300 workmen are employed on an average per working day for the preceding 12 months. The contention of the petitioner's counsel is that the five plants were independent units and Plant No. 1 could not be regarded as an undertaking of an industrial establishment. He submits that there is no functional integrality between the five plants and that each plant was a separate industrial establishment. The term undertaking has not been defined in the Industrial Disputes Act. The term industrial establishment has however been defined in Section 25-L(a) and the relevant part of the definition for purposes of this case is as follows;
(a) Industrial establishment" means:- (i) a factory as defined in Clause m of Section 2 of the Factories Act.
16. Counsel for both the parties relied upon the decision of the Apex Court in S.G. Chemicals and Dyes Trading Employees Union v. S.G. Chemical and Dyes Trading Limited and Anr. 1986 SCC (L & S) 303 as for the scope of LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 11-32 the expression 'undertaking of an industrial establishment' occurring in Section 25-0 of the Central Act and Section 6-W of the U.P. Act and the tests for determining when a unit can be said to be a part of the Industrial establishment. The company S.G. Chemical and Dyes Trading Limited was a wholly owned subsidiary of Ambalal Sara Bhai Enterprises Limited. It was operating in Bombay through three divisions, namely, the Pharmaceutical Division at Worli employing 100 workmen, the Laboratory and Dyes Division at Trombay employing 60 workmen and the Marketing and Sales Division at Express Buildings Church Gate employing 90 workmen. The registered office of the company was situate in the same place as the Marketing Division, namely, in Express Building. Ambalal Sara Bhai Enterprises Limited also owned a Dyes Factory called S.G. Chemical and Dyes situate at Ranauli in Vadodra district in the State of Gujrat. The Company S.G. Chemical and Dyes Trading limited gave notice to the government of Maharashtra that it intended to close down the undertaking/establishment/office of the Chemical and Dyes Division located at Express Building, Churchgate. The notice described the 'industry' as Marketing and Sales operations of Chemical and Dyes" In the statement of reasons for the closure it was stated that Ambalal Sarabhai Enterprises had agreed to sell its business and undertaking at Ranauli to M/s Indian Dyes Stuff Industries Ltd. Bombay and that there would be no work left for the staff of the marketing and sales division at Express Building Church Gate, Bombay. The Employees Union contended that the closure of the Church Gate Division was contrary to the provisions of Section 25-0 of the Industrial Disputes Act. According to the union the aggregate number of workmen employed in the three divisions of the company exceeded 100 and therefore for the purpose of Section 25-0 it was the aggregate strength of the workmen of the company employed in all its three divisions, which was to be taken into account as there was functional integrality amongst all the three divisions and the company was bound to apply to the appropriate government LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 12-32 for permission for closure and as prior permission was not applied for the closure was illegal.
17. The question for determination before the Apex Court as stated in paragraph 17 of the reports was whether the undertaking of the company the Church Gate Division formed part of the industrial establishment of the company, namely, the Trombay Factory so as to constitute the Trombay Factory and the Church Gate Division one establishment. The Worli Division did not fall for consideration because the evidence in the case was confined to the Trombay Factory. It was held by the Apex Court that the evidence established that the functions of the Church Gate Division and the Trombay Factory were neither separate nor independent but were so integrally connected as to constitute the Church Gate Division and the Trombay Factory into one establishment. In this case the Supreme Court considered the question as to what would be the proper test to be adopted for determining whether the undertaking is a part of the same industrial establishment. The apex court held;
The term "undertaking" occurring in Section 25 FF tell for interpretation by this Court in Hindustan Steel Ltd v. Workmen. In that case, this Court held (at p. 310 of the Reports): (SCC p. 570, para 10) The word undertaking as used in Section 25-FFF seems to us to have been used in its ordinary sense connoting thereby any work, enterprise, project or business undertaking. It is no intended to cover the entire industry or business of the employer as was suggested on behalf of the respondent. Even closure or stoppage of a part of the business or activities of the employer would seem in law to be covered by this sub-section. The question has indeed to be decided on the facts of each case.
It is thus clear that the word "undertaking" in the expression "an undertaking of an industrial establishment" in Section 25- 0 means an undertaking in its ordinary meaning and sense as defined by this Court in the case of Hindustan Steel Ltd. If an LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 13-32 undertaking in its ordinary meaning and sense is a part of an industrial establishment so that both taken together constitute one establishment, Section 25-0 would apply to the closure of the undertaking provided the condition laid down in Section 25-K is fulfilled. The tests to determine what constitutes one establishment were laid down by this Court in Associated Cement Company case. The relevant passage is as follows:
What then is "one establishment" in the ordinary industrial or business sense? The question of unity or oneness presents difficulties when the industrial establishment consists of parts, units, departments, branches etc. If it is strictly unitary in the sense of having one location and one unit only, there is little difficulty in saying that it is one establishment. Where, however, the industrial undertaking has parts, branches, departments units etc. with different locations, near or distant, the question arises what tests should be applied for determining what constitutes 'one establishment'. Several tests were referred to in the course of arguments before us, such as geographical proximity, unity of ownership, management and control, unity or employment and conditions of service, functional integrality, general unity of purpose etc. It is, perhaps, impossible to lay down any one test as an absolute invariable test for all cases. The real purpose of these tests is to find out the true relation between the parts, branches, units etc. If in their true relation they constitute one integrated whole, we say that the establishment is one; if on the contrary they do not constitute one integrated whole, each unit is then a separate unit. How the relation between the units will be judged must depend on the facts proved, having regard to the scheme and object of the statute which gives the right of unemployment compensation and also prescribes disqualification therefore. Thus, in one case the unity of ownership, management and control may be the important test; in another functional integrality or general unity may be the important test; and in still another case, the important test maybe the unity of employment. Indeed, in a LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 14-32 large number of cases several tests may fall for consideration at the same time.
These tests have been accepted and applied by this Court in different cases, for instance, in South India Millowners, Association v. Coimbatore District Textile Workers' Union, Western India Match Com. Ltd. v. Workmen and Workmen v. straw Board Manufacturing Col. Ltd. In Western India Match Co. case the court held on the facts that there was functional integrality and interdependence of community of financial control and management of the sales office and the factory in the appellant company and that the two must be considered part of one and the same unit of industrial production.
The most important aspect in this particular case relating to closure, in our opinion, is whether one unit has such componental relation that closing of one must lead to the closing of the other or the one cannot reasonably exist without the other. Functional integralilty will assume an added significance in a case of closure of a branch or unit.
20. There is also evidence of functional integrality in administration and maintenance of accounts. The employer's witness C.P. Yadav admitted that under the Companies Act, the company was registered by the name of Triveni Sheet Glass which was changed subsequently to Triveni Glass Ltd;
that it has been registered as Triveni Glass Ltd., under the Factories Act; that there there is a common balance sheet for all the plants and not separate balance sheets for each of the Plants; that there is a single registration under the Factories Act and no registration Plant-wise; that there is only a single Personnel Department, single Administration Department, single Accounts Department and single Time Office. He also admitted that according to necessity, the workmen of Triveni Glass Ltd., are transferred to Rajamundhry and Meerut where there are separate factories of the petitioner. It was also admitted by him that the workmen of Plant Nos. 1, 2, 3, 4 and LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 15-32 5 were some time transferred from one Plant to another according to need; that all the five Units are situated in one premises; that there is a single registration for all five Units in the name of Triveni Glass Ltd; that there are 577 workmen working in the Plants added together. It is stated in paragraph 14 of the counter affidavit filed in the writ petition that the management for all the five units is the same and all the units are under the same managing director. In paragraph 35 of the counter affidavit it is stated that the batch house maintenance, carpentry, auto shop, power house, oil pump, civil work, R&D, accounts, store, workshop, warehouse, general house for all five plants are permanently located in plant No. 1. The averments made in paragraph 14 and 35 have been denied in general terms in the rejoinder affidavit. In para 37 of the rejoinder affidavit it is stated that staff of batch house, maintenance house etc. provides service to all units.
21. In the S.G. Chemical's case the court had applied the functional integrality test, which was most appropriately applicable in the facts of that case but it observed that the test to be applied would depend upon the facts of the case and in a given case several tests may be applied. The question in that case was whether the marketing and sales division and the Trombay Factory were a part of one industrial establishment. It was held by the apex court that an undertaking of an industrial establishment need not be a factory. In the marketing and sales division no manufacturing process was going on and even though the marketing and sales division was registered under the Bombay Shops Establishment Act and was situate in an altogether different premises but the functions performed by the marketing and sales division demonstrated an integrality with the Trombay factory and the Trombay factory could not have functioned independently without the marketing and sales division. The real purpose of the test (sic) is to find out whether the units constitute one integrated whole. In this case all the plants are owned by the same company and are under common management. They are LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 16-32 under the same managing director. Thus if unity of ownership, management and control test is applied all the plants though separate units would be part of the same industrial establishment. The conclusion would also be the same if the geographical proximity test is applied as all the plants are situated in the same premises there being a common entrance gate into the premises which houses all the five plants although within the premises there are separate gates of entry for each of the plants. There is only a single registration under the Factories Act. Section 4 of the Factories Act provides that on the application of the occupier different departments of one factory can be treated separate factories under the Factories Act and several factories can be treated as a single factory. In this case there is only a single registration under the Factories Act and each of the plants does not have any separate registration. There is nothing to show that the condition (sic) of service of the workmen in the five plants are not the same. There is also evidence to indicate that employees from one plant have sometimes been transferred to another plant. All the plants are owned by the same company and under a common management. They are engaged in the manufacture of glass even though it may be glass of different kinds. There is a common balance sheet for all the plants. There is a single personal department, administrative and accounts department and time office, which regulates all the plants. Thus there appears to be a unity of propose ownership and control. The five plants function together and from part of the same industrial establishment. It is also not in dispute that the employers had applied for permission for closure of other plants even though in those plants there were less than 300 workmen. This act of the employers shows that they were treating the plants as part of one industrial establishment. The finding of fact recorded by the Arbitrator that the plants are part of one establishment is supported by the evidence and the circumstances and does not suffer from any illegality.
25. The contention of the petitioner's counsel that the LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 17-32 financial condition of the industry was very poor, the plants had been closed and the industry was dead and the workmen could not be reinstated may now be considered. While the financial condition of the company may not be sound but the company itself maintain that efforts for revival of one of the plants are being made. It is however not necessary to go into that question for the purposes of this writ petition but it may be noticed that the arbitrator has recorded a finding that the employers had engaged contract labour in large number without observing the provisions of the Contract Labour Regulation and Abolition Act, 1970. The consequences of closure illegal for want of permission have been provided in Sub Section 6 of Section 6-W of the U.P. Industrial Disputes Act, which reads as follows;
(6). Where no application for permission under Sub-section (1) is made within the period specified therein, or where the permission for closure has been refused, the closure of the undertaking shall be deemed to be illegal from the date of closure and the workmen shall be entitled to all the benefits under any law for the time being in force as if the undertaking had not been closed down.
26. On the plain language of this provision it is clear that noncompliance with the requirement to obtain permission is fatal to the closure and the workmen are entitled to all the benefits as if the undertaking had not been closed down. In view of the consequences of a closure without permission provided by the statute itself the contention advanced that the industry is in poor financial condition would not come to the rescue of the employer. In S.G. Chemical's case the apex court in respect of the analogous provision of sub Section 6 of Section 25-0 observed that where no application for permission under Sub-section 1 of Section 25-0 is made the closure of the undertaking is to be deemed to be illegal from the date of the closure and the workmen are to be entitled to all the benefits under any law for the time being inforce as if LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 18-32 the undertaking had not been closed down. The rationale of the provision can be gathered from the scheme of the Industrial Disputes Act, which reflects the policy of the Act to encourage continuity of production. Section 6-X of the UP. Industrial Disputes Act even gives power to the State Government to direct in the circumstances provided under that section that the undertaking shall be re-started within such time as may be specified in the order. The interest of the workmen is involved in the industry. It is in the public interest also that production should continue. It is for this reason that sub Section 2 of Section 6-W of the U.P. Industrial Disputes Act provides that when an application for permission has been made the State Government shall make enquiry and give reasonable opportunity to the employer, the workmen and the persons interested in the closure and have regard to the continuance and adequacy of the reason stated by the employer, the interest of the general public and all other relevant factors. The State Government is also required to record reasons either for granting or refusing permission.
9.3 Management has referred to Ex.WW1/2 the legal notice issued by the workman at para no. 4 and 5 whereby workman was asked to join another contractor. The management submits that the workman himself submits in his legal notice that offer was given to the workman to join another contractor therefore he has knowledge of closure of undertaking. Other than this the management has referred to Ex.WW1/3 dated 02.02.2016 whereby notice was sent to the workman that he was absent without leave and without any information and therefore he is unauthorisedly absent. This letter Ex.WW1/3=Ex.MW1/I was sent by the management by speed post LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 19-32 Ex.MW1/J. Ex.MW1/J which is copy of receipt of speed post is dated 12.02.2016. The workman has replied to this legal notice by stating that Ex.WW1/3 was issued by the management much afterthought. The legal notice Ex.WW1/2 was issued by the workman to the management and only in response to this legal notice, in further proceeding before Assistant Labour Commissioner vide Ex.WW1/5 a certificate was issued by Assistant Labour Commissioner in this regard dated 03.06.2016 vide Ex.WW1/6. Ex.WW1/6 mentions the receipt of industrial dispute of the workman before the conciliation officer on 11.03.2016. Other than this the speed post Ex.MW1/J was issued at address Tilak Nagar and at address Mainpuri. However the management has referred to Ex.MW1/E dated 16.11.2015 whereby this notice was put on the notice board at the office of management at Mayapuri. It mentions that management has decided to close the service centre at Mayapuri on 31.12.2015. Vide this letter the management seeks to claim that it had already initiated closure of undertaking and given sufficient prior notice to the workman for a period of 60 days u/Sec. 25FFA of Industrial Disputes Act, 1947 as the worker himself has claimed termination of his service on 25.01.2016. It is deposed by MW1 that the workman was called vide Ex.WW1/3 on 23.01.2016 for full and final settlement. It is LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 20-32 admitted as correct that the service of workman was terminated on 25.01.2016. The workman was offered closure compensation which workman has failed to collect within 15 days from 31.12.2015 vide closure notice Ex.MW1/E. It is admitted that service centre at Patparganj is still in operation. Workman was not offered alternate employment at Patparganj since there was no vacant post is in existence at that time.
9.4 As far as closure of undertaking is concerned the same is already discussed above under issue no. 1 which is decided against the management and in favour of workman and therefore it is held that management has not validly closed the undertaking. It should have sought prior permission from the appropriate Government. No notice u/Sec. 25FFF is proved by the management on record as the closure notice Ex.MW1/E is not proved on record on such and such date by the management. No compensation of retrenchment u/Sec. 25FFF was paid to the workman. Even when the undertaking was closed in unavoidable circumstances that is beyond the control of employer but compensation is to be paid to the workman under clause (b) of Sec. 25F shall not exceed his average pay of three months. Infact no notice pay was given to the workman. The WW1 has deposed that his last drawn salary was Rs.16,500/- per month LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 21-32 and during evidence it is deposed by workman in pleading that his last drawn salary was Rs.17,779/-. This deposition of salary in the month January 2016 is not challenged by the management during cross-examination in reference to salary Rs.17,779/- was in the month of December 2016.
9.5 In the case titled Pramod Kumar Tiwari v. Hindustan Fertilizers Corporation (1995) ILLJ 192 MP at para 6, 7 and 8 it is submitted by the management that in view of above citation by the expression undertaking means a separate and distinct business or commercial or trade or industrial activity. It is not intended to cover the entire industry or business of the employer. However in the same para it is held that if any indistinct mini part of an industry having a separate existence gets closed then the employer is expected to engage his workers into other wings of his industry. Therefore the management is required to prove on record that the industry of the management is distinct in each part whether they are at Mayapuri or at Patparganj or Gurugram or at any other place. This is neither in the pleadings of the management nor in the evidence. To the contrary vide Ex.WW1/1 the appointment letter the workman mandates liability to be transferred in future department or establishment forming part of the company or to any LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 22-32 of its associates in Delhi. In such view of the matter the management itself has not considered every undertaking at distinct places as separate entity. Therefore the citation relied upon by the management on this account is held not applicable in the circumstances of the case.
9.5.1 Further the other citation relied upon by the management titled Savani Transport Pvt. Ltd. v. Savani Transport Employees (1994) IILLJ 269 Ker at para 13 and 17 the matter was remanded by Hon'ble High Court of Kerala to the Hon'ble Tribunal to decide the issue a afresh that whether there was functional integrality and thereafter to arrive at a fresh conclusion.
9.5.2 Similarly the citation titled Dal Singar & Ors. v. Material Movement Pvt. Ltd. in W.P.(C) 4179/2011 dated 17.07.2018 at para no. 31 the Honble High Court of Delhi has requested the Hon'ble Labour Court to decide the reference afresh in time bound manner and the issue of closure of industry was therefore not decided therein. Hence both the above citations are held being not applicable to the facts of the case when the issue is yet to be decided afresh by Hon'ble Labour Court.
LID No. 823/16Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 23-32 9.6 Hence the citation relied upon by the management is held not squarely applicable to the facts of the present case. The management has not refuted that there was common balance sheet, single registration, a single personnel department, single administration department, single accounts department. In fact the management has failed to show that each undertaking was a separate division. Other than this in case titled Savani Transport Employees (supra) at para no. 13 reliance is placed on case titled S.G. Chemicals and Dyes Trading Employees Union v. S.G. Chemicals and Dyes Trading Ltd. and Anr. 1986 SCC (L&S)
303. It is also relied in the citation Triveni Glass Limited-A Company (supra) at para no. 16. In fact the said citation from Hon'ble Supreme Court of India has laid down the test for determining whether the undertaking is a distinct entity or a common entity with a whole. The management has failed to show on record by way of evidence that it had a distinct entity which is already discussed in para above. In view thereof it is held that the management has failed to discharge burden of proof of the present issue that it was a separate and independent unit running at Mayapuri, Delhi to claim exemption u/Sec. 25 FFA of Industrial Disputes Act, 1947. Other than this the management has also failed to prove on record that it has validly closed the running of the LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 24-32 undertaking which is operating service centre at Mayapuri, Delhi. No permission was taken from the appropriate authority nor it is shown that the management was suffering from any such financial hardship due to which it has become impossible to continue to run the establishment/undertaking. During the course of final arguments the management at the very beginning has given up the claim of abandonment of service by the workman. In these circumstances present issue is decided against the management and in favour of workman.
10. ISSUE NO. 22. Whether services of workman were terminated illegally or unjustifiably by management? OPW 10.1 The findings under issue no. 1 above, are equally applicable under the present issue and be read as part and parcel of the present issue. The same are not repeated herein for the sake of brevity.
10.2 It is admitted as correct by MW-1 that service centre at Mayapuri is also running by an outsourced agency. It is admitted as correct that no written communication was sent to the workman to join after abandonment of job. It is admitted LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 25-32 that no memo or chargesheet was issued to the workman and no domestic inquiry was conducted against the workman. The workman has challenged Ex.MW1/E in which management has failed to show that it was so put to notice of workman. It is admitted as correct that management has employed the workman as Service Executive without specifying the place of working.
10.3 MW-2 has deposed that head office of management is at Gurugram in the year 2014 and before that Mayapuri station was working till 31.12.2015. It is admitted as correct that the appointment letter of the workman has clause mentioning of transfer to any service centre. This is also pointed out by the workman in Ex.WW1/1 at page no. 2 at para no. 11. It is admitted as correct that the service centre at Patparganj was operational till 31.03.2019 and that service centre was already full and therefore no employee was shifted to that office. No written offer was given to the workman to work either in UP or Bihar but it was orally offered to the workman. MW2 does not remember that on which date notice for full and final settlement was given to the workman but it was in the month January or February 2016. He does not know if salary was paid to the workman in the month of January 2016 or if any full and final settlement amount was transferred to LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 26-32 the workman. MW2 do not have knowledge of letter Ex.WW1/3 dated 02.02.2016 the alleged notice to the workman to join back his duties.
10.4 WW-1 had deposed that no specific area was alloted to him to attend complaints and he used to attend complaints for entire Delhi. The issuance of closure notice dated 16.11.2015 is denied. The workman does not know the name of the contractor to whom the management has assigned the service work. It is deposed that he had applied in other firms for job but he could not get work as everybody used to asked him the reason for leaving the previous job. It is denied that he is working as independent electrician. The WW1 had deposed at para no. 12 of evidence by way of affidavit that he is unemployed since 25.01.2016 and could not get job despite best efforts.
10.5 Though management had initially taken the ground that workman has abandoned the job but during course of arguments this ground itself is given up by the management. Management submits that it restricts its arguments only in respect of closure of undertaking. However as far as abandonment is concerned there are specific guidelines thereto moreso when the last day LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 27-32 workman was present in the office and the industrial dispute between the parties before the conciliation officer are of near about same period. It therefore requires that atleast there should have been some inquiry against the workman which is totally absent in this case and the above pleading of the management could not be sustained and stands dismissed in view of citation referred below:
Sachiv Krishi Upaj Mandi Samiti, Sanawad v. Mahendra Kumar S/o Mangilal Tanwarao, 2004 LLR 405 = 2003 SCC OnLine MP 720 : (2004) 101 FLR 176 (MP) : (2004) 4 LLJ (Supp) (NOC 307) 953 : 2004 LLR 405 that if the termination of an employee is based on no inquiry, no charge and not by way of punishment, then it becomes a case of illegal retrenchment. In such case, the workman will be entitled to reinstatement with full back wages.
4. Parties led evidence. It was, however, concluded on facts and evidence that respondent has worked continuously for more than 240 days in one calendar year, that no charge-
sheet or any inquiry was held prior to his termination, that no retrenchment compensation was paid prior to impugned termination, and that it was a case of dismissal without any basis or charge.
5. Learned Counsel for the petitioner was unable to point out to me any mistake of law or fact in the impugned award, in so far as the aforementioned findings of facts were concerned. These findings are the only findings which need to be rendered on facts and evidence. Indeed, in order to attract the protection of labour laws, these are the only issues which need to be examined on facts on both sides. As observed supra, if the termination of an employee is based on no inquiry, no charge and not by way of punishment, then it LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 28-32 becomes a case of illegal retrenchment. If an employee has worked for more then 240 days in one calendar year then he is entitled to have the protection of Labour Laws provided the employer is an Industry subjected to Labour Laws.
6. Learned Counsel for the petitioner contended that no order for payment of back wages could be given. I do not agree to this submission, as it has no merit. Firstly, once the termination is held to be bad in law then directions to pay back wages is a natural consequence and has to follow. It is only when the employer (as in this case petitioner) is able to show and prove that terminated employee was working for gains even after termination, the order for payment of back wages will not be passed.
7.7. The burden to prove that employee was working for gains after termination lies on the employer. In the absence of any evidence not tendered, the direction to pay back wages has to follow. It is, however, necessary for the employee to state on oath that he remained unemployed after the termination of his service. In this case, the petitioner failed to lead any evidence on this issue against the respondent and on the other hand, the respondent did say that he remained unemployed. In view of this, the direction to pay back wages cannot be said to be illegal or unreasonable once it was held that termination is bad in law.
10.6 Such last drawn salary of the workman is to be considered which is taken by the workman in the pleadings which is for a sum of Rs.17,779/-. The management had pleaded that the work and conduct of the workman was not upto the mark but the pleadings in this respect are not specific. No notice in this respect LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 29-32 was given to the workman which could materialise in the chargesheet. In view thereof it cannot be said that the conduct of workman was not upto the mark. It appears that the management is trying to give colour to its case as if the workman was inefficient. However even prior to giving any notice the management had admittedly issued common notice to all the employees vide Ex.MW1/E and by such pleading the management is trying to cover its own wrong doing by making false accusation against the workman. In fact MW-2 has deposed that the salary of workman was also increased. It is admitted as correct that the workman was doing his work and upto the satisfaction of the company. Other than this Ex.WW1/MX1 congratulates the workman an express appreciation the work of the workman herein for the Mission 2000 achievement. In such circumstances of the case, it is held that termination of workman as on 25.01.2016 by the management is illegal, unjustified and has without any basis in law. Hence it is held that termination of the workman is in violation of Section 25FFA, Sec. 25FFF r/w Sec. 25F and Sec. 25G of Industrial Disputes Act, 1947 in view of the fact that the undertaking of management continue to run at other places and no offer was given to the workman for transfer at such other places. In fact MW2 has deposed that workman was asked to work in other states but no LID No. 823/16 Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 30-32 such written offer was brought on record which shows that work was available with the management which was not granted to the workman as per law. Accordingly, present issue is decided in favour of workman and against the management.
11. R E L I E F 11.1 In view of findings above, since all the issues are decided in favour of workman, para no. 26 of citation titled Triveni Glass Limited-A Company v. State of Uttar Pradesh is referred to wherein it is specifically laid down that non-compliance with the requirement to obtain permission is fatal to the closure and the workmen are entitled to all the benefits as if the undertaking had not been closed down. In view of the above settled law workman is held entitled and has been granted the following reliefs:
(i) Immediate reinstatement from the date of publication of this Award with;
(ii) Full back wages since 25.01.2016 from the date of his illegal termination @Rs.17,779/- per month the last drawn wages upto the date of publication of Award with;
(iii) All consequential benefits from the date of his termination till the date of his reinstatement.LID No. 823/16
Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 31-32
(iv) All the due amount be paid within one month of the date of publication of present Award with interest @ 9% per annum from the date of publication till its realization.
(v) The workman is also awarded the cost of litigation for a total sum of Rs.20,000/- u/Sec. 11(7) of Industrial Disputes Act, 1947.
Reference stands answered in the aforesaid terms.
11.2 A copy of Award be sent to the Competent Authority/appropriate Government i.e., Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication which thereafter become enforceable u/Sec. 17A of Industrial Dispute Act, 1947. Award is passed accordingly.
File be consigned to record room after due compliance.
Announced in the open Court
on 14.03.2022. JOGINDER Digitally signed by JOGINDER
PRAKASH NAHAR
PRAKASH Date: 2022.03.14 15:44:02
NAHAR +0530
(JOGINDER PRAKASH NAHAR)
PRESIDING OFFICER LABOUR COURT-IX
ROUSE AVENUE COURT COMPLEX /NEW DELHI
LID No. 823/16
Keshav Dayal v. M/s. Luminous Power Technologies Ltd. Page 32-32