Delhi District Court
Sh. Amit Kumar vs . M/S. S. D. Public School & Anr. Did No. ... on 30 November, 2012
Sh. Amit Kumar Vs. M/s. S. D. Public School & Anr. DID No. 07/07
IN THE COURT OF DR. P S MALIK THE PRESIDING OFFICER
IN
LABOUR COURT XI, KARKARDOOMA COURTS, DELHI
Computer ID No. 02402C0006182007
Type of Case Direct Industrial Dispute
Date of Institution 02.01.2007
Evidence concluded on 09.04.2012
Final Arguments heard on 08.11.2012
Date of Award 30.11.2012
WORKMAN Vs. MANAGEMENT
Sh. Amit Kumar S/o Sh. Subhash, 1. M/s. S. D. Pubic School, East
R/o P - 2/624, Sultan Puri, Delhi. Patel Nagar , New Delhi 110008.
2. Management of Sanatan Dharam
Sabha, East Patel Nagar, Lal
Mandir, New Delhi - 110008.
PRESENT:
None for the parties.
AWARD :-
1. The workman Amit Kumar filed this direct industrial dispute before this court U/S
10 (4A) of the Industrial Disputes Act against two Managements i.e. (i) M/s. S.D.
Public School and (ii) Management of Sanatan Dharam Sabha. (Because the
respondents / Managements are a school and its Managing Committee respectively,
hence the word Management hereinafter would be used for them henceforth).
AWARD Page 1 of 18 Sh. Amit Kumar Vs. M/s. S. D. Public School & Anr. DID No. 07/07
2. As per his claim, the workman Amit Kumar was working with the Management M/s. S.D. Public School since 07.05.1996 as a Coordinator. He pleaded his last drawn salary as Rs.3312/ per month. As per the workman the Management was not giving him his legal benefits like PF and ESI facilities. When he demanded the same, the Management was alleged to have got annoyed and terminated his services on 09.11.2006. It is his allegation that this termination of his services was violative of law. He raised an industrial dispute and brought the same before this court for adjudication.
3. The Management filed a joint written statement and pleaded no relationship in the nature of 'an employer and an employee' between it and the workman. It was pleaded that the workman concerned 'was a free lancer who used to call him sometimes as a Supervisor and sometimes as a Coordinator'. As per the written statement the workman was to make arrangements to carry out the cleanliness of the school premises. It was his duty to arrange his workforce on his own. On merits the case of the workman was denied.
4. On the basis of pleadings of the parties, the ld. Predecessor vide his orders dated 11.10.2007 framed the following issues :
1. Whether the workman was working with the Management as a regular employee or he was working as free lance worker as stated in para 2 of the preliminary objection of the written statement?
2. Whether the services of the workman were terminated illegally and / or unjustifiably by the Management, and if so, what relief was he entitled? OPW.
3. Relief.
5. The workman examined him as WW1 in support of his claim and AWARD Page 2 of 18 Sh. Amit Kumar Vs. M/s. S. D. Public School & Anr. DID No. 07/07 almost reiterated his claim in material aspects. He relied upon 12 documents which are Ex. WW1/1 to Ex. WW1/12. Document Ex. WW1/1 (colly.) are the photocopies of 16 cheques. Ex. WW1/2 is the photocopy of the account statement of the Management. Document Ex. WW1/3 (colly.) are the photocopies of seven purchase slips. Document Ex. WW1/4 (colly.) is the photocopies of the leave details of the workman. Ex. WW1/5 is the photocopy of the Icard of the workman. Ex. WW1/6 (colly.) is the photocopies of the details of the employees of the Management including the workman. Document Ex. WW1/7 (colly.) is the photocopies of the magazine showing various photographs of the workman. Ex. WW1/8 (Colly.) is the photocopies of the attendance register. Ex. WW1/9 is the legal notice and documents Ex. WW1/10 and Ex. WW1/11 are its postal receipts. Ex. WW1/12 is its acknowledgment receipt.
6. During his cross - examination he admitted that he used to purchase the material for the school and after that submitted bills in a capacity of an incharge. He also stated that if any safai karamchari had any kind of problem and difficulty in doing work assigned to him by this claimant, then that karamchari used to convey it to the Principal directly and not to this workman.
7. During his cross - examination a document Ex. WW1/M4x was put to this witness.
This witness denied his signatures on this document and also denied to have given it to the Principal on 09.11.2006. This document Ex. WW1/M4x is a letter written by one Sh. Amit Kumar, Safai Supervisor to M/s. S.D. Public School. He denied the factum of engaging any necessary work force of his own for carrying out cleanliness in the Management school.
8. Thereafter the Management examined one Sh. Jagdish Anand as MW1.
He deposed to be a General Secretary of the respondent no. 2 since AWARD Page 3 of 18 Sh. Amit Kumar Vs. M/s. S. D. Public School & Anr. DID No. 07/07 31.07.2009 and the Manager of the respondent no. 1 since 03.08.2009. He reiterated the pleadings made by the Management in the written statement. He relied upon three documents i.e. Ex. MW1/1 to Ex. MW1/3. Document Ex. MW1/1 is the list of Managing Committee constituted on 03.08.2009. The name of this witness was written at point 'A' at serial no. 3 of Ex. MW1/1. Document Ex. MW1/2 is a document addressed to "To Whomsoever It May Concern". It was signed by some authority Sh. Deepak Anand for whom a court of law is not something to be respected but was 'To Whomsoever'. This document bears a date 10.03.2011 and reads that Sh. Jagdish Lal Anand was proposed and elected as General Secretary of Shri S.D. Sabha (Regd.) w.e.f. 31.07.2009. Document Ex. MW1/3 is a Housekeeping Agreement purportedly between the M/s. Max Protection & Detective Services and the Management M/s. S.D. Public School.
9. The Management also examined one handwriting expert Sh. Syed Sarfraz Ahmed as MW2. To the claimant a document Ex. WW1/M4x was put during his cross - examination. As per the Management this was a letter written by the workman to the Management vide which he offered his willingness to leave his job. But in the court the workman has denied his signatures on this letter. In order to prove that the signatures appearing at point 'A' of this letter Ex. WW1/M4x belongs to the workman, this handwriting expert Sh. Syed Sarfraz Ahmed was examined as MW2. In the opinion of this expert witness these signatures belonged to the claimant.
10. The law related to the onus of proof in a labour adjudication was laid down by the Hon'ble Superior Courts in various cases.
11. The Hon'ble Supreme Court in case Workmen of Nilgiri Coop.
Marketing Society Limited Vs. State of Tamil Nadu & Ors. 2004 LLR AWARD Page 4 of 18 Sh. Amit Kumar Vs. M/s. S. D. Public School & Anr. DID No. 07/07 351 has observed as follows :
49. "It is a well settled principle of law that the person who sets up a plea of existence of relationship of employer and employee, the burden would be upon him."
50. "In N.C. John Vs. Secretary Thodupuzha Talul Shopand Commercial Establishment Workers' Union and Others [1973 Lab. I.C. 398], the Kerala High Court held :
"The burden of proof being on the workmen to establish the employer - employee relationship an adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employer - employee relationship."
51. In Swapan Dos Gupta & Others vs. The First Labour Court of West Bengal and Others, [1975 Lab. IC 202] it has been held that "Where a person asserts that he was a workman of the Company, it is for him to prove the fact. It is not for the Company to prove that he was not an employee of the Company, but of some other person."
12. The law was also elaborated by the Hon'ble Delhi High Court in UCO Bank Vs. Presiding Officer & Another 1999 V AD (Delhi) 514 and in Automobile Association of Upper India Limited Vs. PO Labour Court & Anr. 2006 LLR 851.
13. In Automobile Association of Upper India Limited Vs. PO Labour Court & Anr.
(SUPRA) it was observed by the Hon'ble Delhi High Court that, 'it is well settled that the primary burden of proof to establish a plea rests on a person so claiming in this behalf reference can be appropriately made to the judicial pronouncement in III (2001) SLT 561; (2001) 9 SCC 713 (715), State of Gujarat & Ors. Vs. Pratamsingh Narsinh Parmar, III (2004) SLT 180; 2004 LLR 351 (para 49), Nilgiri Coop. Marketing Society Ltd. Vs. State of Tamil Nadu, 2001 LLR 148, Dhyan Singh Vs. Raman Lal, 1996 Lab. I.C.202, Swapan Vs. First Labour Court,West Bengal, and 1973 Lab. I.C. 398 N.C. John Vs. TTS & CE Workers Union. Thus burden lies on a person claiming the establishment to be an industry to place positive facts before the Court in this behalf. For this reason, the primary burden to establish the relationship of employment also lies on the workman who is claiming the same.' AWARD Page 5 of 18 Sh. Amit Kumar Vs. M/s. S. D. Public School & Anr. DID No. 07/07
14. In UCO Bank Vs. Presiding Officer & Another 1999 V AD (Delhi) 514 (SUPRA), it was held by the Hon'ble High Court, 'Now I shall deal with the second issue relating to burden of proof : Principles regarding burden of proof are stipulated in Chapter - VII of Indian Evidence Act, 1872 (Section 101 to 114A). General Principal, which is laid down in these sections particularly Section 101 and 102 is that he who asserts must prove i.e. burden of proof is the obligation to adduce evidence to the satisfaction of the Tribunal or Court in order to establish the existence or non - existence of a fact contended to by a party. Burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it, for a negative is usually incapable of proof. Dealing with aforesaid Principles contained in Indian Evidence Act, Mr. O.P. Malhotra in his book entitled "The Law of Industrial Disputes", Fifth Edition (Volume 1) Page - 842 states as under : 'The expression 'burden of proof' has two distinct and often blurred meanings viz. (i) the burden of proof as a matter of law and pleadings. This, burden, as it has been called, for establishing a case, whether by preponderance of evidence or beyond a reasonable doubt, and (ii) the burden of proof in the sense of introducing evidence. In the Indian Evidence Act, Sec. 101 uses the expression in the former sense while Sec. 102 uses it in the latter sense. The former type of onus viz. The burden of proof of the facts in issue is usually known as the general burden of proof or the burden of proof on pleadings. This type of burden of proof has been called by jurists, the 'legal burden', the legal or persuasive burden is the burden borne by the party who will loose the issue unless he satisfies the Tribunal of the facts to the appropriate degree of conviction and it is aptly termed the "Risk of Non Persuasion" by Vigmore. The phrase 'legal burden' was coined by Lord Denning while the phrase 'persuasive burden' was used by Dr. Glanville Williams. Other jurists have referred to it as the "burden of proof on the pleadings". This burden is entitled to be called the legal burden because its incident is determined by the substantive law, and the adjective persuasive gives some indication of its real nature. The pleadings do not always indicate which party bears the burden, and the answer to a somewhat controversial question is AWARD Page 6 of 18 Sh. Amit Kumar Vs. M/s. S. D. Public School & Anr. DID No. 07/07 assumed if it is said to be "fixed", for the epithet is designed to emphasis the fact that this burden does not shift in the course of a trial a matter of words about which there is room for two views in the case of issues to which certain rebuttable presumptions of law are applicable. The latter type of onus is called the professional or the tactical burden. The burden of proof in the first sense is fixed at the beginning of the trial by the state of pleadings and it is settled as a question of law. Remaining unchanged, throughout the trial exactly where the pleadings place it and never shifts in any circumstances whatsoever. The burden of proof in the second sense, however, constantly shifts as one scale of evidence or the other preponderates".
The point of consideration is as to whether these rules of evidence would be applicable even in adjudication pleadings under the Industrial Law. This question was decided by Supreme Court in the case of Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd. (1979) II LLJ 194 wherein Supreme Court observed that through the Adjudicatory Authorities under the Act have all the trappings of a court, they are not hide bound by the statutory provisions of the Evidence Act Section-11 (3) of the Industrial Disputes Act confers on them powers of a Civil Court under the Code of Civil Procedure only in respect of matters specified therein. Such Authorities are created for adjudication of Industrial Disputes between the parties arrayed before them. Their function being of a quasi - judicial nature, they have to adjudicate such disputes on the basis of pleadings of the parties and the evidence adduced before them in accordance with Rules of Natural Justice. Therefore, any party appearing before anyone of such Authorities must make a claim or demur the claim of the other side. When there is a burden upon the party to establish a fact so as to invite a decision in its favour, it has to lead the evidence. The obligation to lead evidence to establish an averment made by a party is on the party making the averment. The test would be who would fall if no evidence is led. Such party, therefore, must seek opportunity to lead evidence.
AWARD Page 7 of 18 Sh. Amit Kumar Vs. M/s. S. D. Public School & Anr. DID No. 07/07
15. In pursuance of the law as aforesaid, this court is of the view that prima facie it is a burden on the workman to prove that he had a relationship with the Management in the nature of 'an employer and an employee'. He has also to show and prove the other details of this relationship. This burden of proof keeps shifting between the parties during the course of an adjudication.
ISSUE NO. 1 :
16. In this issue this court has to adjudicate upon the factum if the workman was working with the Management as a regular employee or he was working as a free lance worker as stated in para 2 of the preliminary objections of the written statement.
17. Definition of 'workman' is given in Section 2 (s) of the Industrial Disputes Act which reads as follows : Section 2 (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 purpose 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) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957);
or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial AWARD Page 8 of 18 Sh. Amit Kumar Vs. M/s. S. D. Public School & Anr. DID No. 07/07 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.
18. This definition of 'workman' at no place makes a distinction between a daily wager or a free lancer or bonded labour or a regular employee or any other species of the 'workman'. It envisages a term 'workman' as any person employed in any capacity mentions therein to serve any work for hire or reward. It excludes four particular categories of persons and allowed all other remaining ones as to come under the flag of workman. Therefore, the preliminary objection taken by the Management in para no. 2 of its preliminary objections in the written statement appears to be a stand beyond the domain of the law concerned. When viewed through the frame of reference of the Industrial Disputes Act, the term free lance worker appears to be a meaningless term. Anyone who has worked for the Management is a workman provided he qualifies the test given in Section 2 (s) of the Industrial Disputes Rules as aforementioned. Hence this court strikes out this issue and holds the same as not required for being adjudicated upon.
19. It is decided accordingly.
ISSUE No. 2 :
20. In this issue this court has to adjudicate upon the factum if the services of the workman were terminated illegally and / or unjustifiably by the AWARD Page 9 of 18 Sh. Amit Kumar Vs. M/s. S. D. Public School & Anr. DID No. 07/07 Management, and if so, what relief was he entitled.
21. From the law laid down by the Hon'ble Superior Courts as aforesaid it is clearly for the workman to show the existence of a relationship in the nature of 'an employer and an employee' between the Management and him. The workman carries a primary burden to show the existence of such a relationship. But here the Management had admitted the existence of that relationship between it and the workman / claimant. In the evidence affidavit also it was specifically stated that this relationship lasted from the year 2000 to 2006.
22. The burden of proof keeps shifting between the parties. Once the relationship in the nature of 'an employer and an employee' stands proved by way of an admission of the Management, the burden of workman to prove the existence of that relationship stands discharged. Thereafter it starts the domain of the Management to prove other details of the relationship. The Legislature made it very clear in Section 106 of the Indian Evidence Act which envisages the circumstances when a particular piece of evidence is within the specific possession of a particular party. If the workman was employed in the service of the Management and it was not disqualified by any unlawful categorization e.g. the one of 'free lance worker', then it was for the Management to prove the precise date of appointment, dates of absence, quantum of wages and if any, the termination of that relationship. The Management has to produce all these records from under its possession. Because the Management is under a legal obligation to prepare, keep and produce it before authorities under various provisions of the Industrial Disputes Act and other related Statutes. This burden of the Management could have been easily discharged by production of this record before the court. But this AWARD Page 10 of 18 Sh. Amit Kumar Vs. M/s. S. D. Public School & Anr. DID No. 07/07 record was not produced by the Management.
23. In fact the Management has produced almost no record. They relied upon three documents. Ex. MW1/1 is a list of the Managing Committee which came in existence on 03.08.2009. Document Ex. MW1/2 is a letter of some reverential personality who has addressed the court "Whomsoever It may Concern". This personality was pleased to enlighten the court on a matter that Sh. Jagdish Lal Anand was unanimously proposed and elected as General Secretary of Shri S.D. Sabha (Regd.). This court ought to feel elated for such an enlightenment. And it is done too. Third document is Ex. MW1/3 which shows that a Housekeeping Agreement was entered into between M/s. Max Protection & Defective Services and S.D. Public School. By this document the Management seeks to show that the work which this workman used to do earlier has now been outsourced.
24. As it is observed by this court previously that the workman denied his signatures on document Ex. WW1/M4x. This appears to be a letter written on 09.11.2006. This letter was addressed to M/s. S.D. Public School. It purports to be bearing the signatures of the claimant at point 'A'. During the cross - examination this document was put to the claimant and the claimant denied the factum of giving this letter to the Management. He further denied his signatures on it at point 'A'.
25. The Management examined its second witness Sh. Syed Sarfraz Ahmed to prove that the document Ex. WW1/M4x bears the signatures of Sh. Amit Kumar the complainant. The handwriting expert Sh. Syed Sarfraz Ahmed MW2 in his report Ex. MW2/1 has supported the version of the Management.
26. The Industrial Disputes Act is a unique Act and is probably the only AWARD Page 11 of 18 Sh. Amit Kumar Vs. M/s. S. D. Public School & Anr. DID No. 07/07 one which allows the authorities administrative as well as judicial to review the terms of an agreement entered into between the employer and its workman. For this purpose the authorities are well equipped by law to transcend the contours of 'working principles of contract' between the parties including the rule of 'privity of contract'. Specific provisions have been enacted by the legislature vide Rule 58 (4) of the Industrial Disputes Rules wherein an settlement between the parties is to be submitted to the office of the Labour Commissionerso that its propriety and justification could be examined. In the same and similar tune the references are sent by the appropriate Government to the court to adjudicate the aspects of propriety and justification in an alleged act of termination of services of the workman.
27. In the present case, the Management has tried to hide more than what it had revealed before the court. It had admitted that this workman remained in contact with the Management for a number of year from 2000 to 2006. But it had concealed the other aspects. The phrase 'from 2000 to 2006' corresponds to an inherent counting error of 730 days. The period from 31.12.2000 to 01.11.2006 is 730 days (2 years) less than the period from 01.01.2000 to 31.12.2006. However, in both the cases the period extends from the year 2000 to 2006. A court of law granting relief to a vulnerable party to an industrial dispute, cannot allow such a big error to creap into its judgments. Hence this court chooses an interpretation of time period amongst the available periods which is more favourable to the workman i.e. fom 01.01.2000 to 31.12.2006. Here the last date as pleaded by the workman himself is 09.11.2006. Therefore, the period of service admitted would be construed as 01.01.2000 to 09.11.2006.
28. The workman could not bring any documentary evidence on record to AWARD Page 12 of 18 Sh. Amit Kumar Vs. M/s. S. D. Public School & Anr. DID No. 07/07 show that he was working there with the Management since 07.05.1996. However, the photocopies of the documents relied upon by him contained some photocopies of some cheques pertaining to the years of 2000, 2001 and 2002. The workman also relied upon the photocopy of his Icard as Ex. WW1/5. But its original was never produced before the court. Moreover, this photocopy does not show any date of appointment. It shows only the designation of the claimant as Coordinator (IV Employees). In such circumstances, based upon this material available on record, no precise date of appointment other than the one admitted by the Management and interpreted by the court in the previous paragraph could be ascertained. Therefore, this court holds that the period of working of this claimant with the Management was from 01.01.2000 to 09.11.2006.
29. The next point of determination is that of the last drawn salary. The workman pleaded it as Rs.3312/ p.m. while the Management in its reply on merits has not denied it specifically. During the evidence of the workman some photocopies of cheques were placed on record which show that an amount of Rs.1600/ p.m. was being regularly paid to this claimant with a slight variation in amount during some particular months. The photocopies pertaining to the year 2000 showed an average amount of Rs.1600/ was being paid. It remained unaltered in the year 2001 with a slight month wise variations. The amount reflected in the cheque pertaining to the year January, 2002 also showed an amount of Rs.1600/ p.m. being paid to the workman. Definitely this amount would have not reflected total quantum of the workman's wages. Had it been an amount of wages, this would have shown a yearly increament in its magnitude. Therefore, this court is of the view that this average amount of Rs.1600/ p.m. was either a part of AWARD Page 13 of 18 Sh. Amit Kumar Vs. M/s. S. D. Public School & Anr. DID No. 07/07 wages or was a reimbursement to this workman on made some account which was not specified by the parties before the court. The respondent / Management would have disproved the workman / claimant's version or proved its own version containing other details by producing its accounts books and the salary and wages register of this claimant for whom the identity card Ex. WW1/5 was issued. But this was not done so. The Management appears to have acquiesced to this part of pleadings of the claimant. Holding it as a constructive admission, this court holds that the last drawn wages of this workman is Rs.3312/ per month.
30. Now this court has to ascertain the mode of termination of services of this workman in the year 2006. The Management is completely silent on this aspect. However, it has produced a document Ex. WW1/M4x whereby a description was shown to have been sent to the Management M/s. S.D. Public School wherein the claimant Amit Kumar had expressed his intentions not to work with the Management. On this document the workman had denied his signatures at point A and the Management had tried to prove these signatures under the authorship of this claimant by examining MW2 Sh. Syed Sarfraz Ahmed an handwriting expert.
31. This document Ex. WW1/M4x is a strange document. It startles the cognition of the court. A person who could have written his name Amit Kumar was not allowed to write the descriptive body of this letter. It creates a doubt on the very nature of this document. The letter was written by someone else. The workman was allowed only to mark his signatures at point A in the right side bottom of this piece of paper. If this was a voluntary act of the claimant / workman, why it was not allowed to be written in the handwriting of the workman himself is an unanswered question. The language and its tone which this letter AWARD Page 14 of 18 Sh. Amit Kumar Vs. M/s. S. D. Public School & Anr. DID No. 07/07 contains is highly unlikely to have been written by a person to his erstwhile employer after six long years of his employment. In all likelihood it appears that there was some blank paper earlier signed by this claimant and that paper was subsequently filled in with the description of Management's choice. But that is not something which can be allowed to prevail in proceedings before a court of law. Had it been a voluntary piece of resignation, then it would have been accompanied by a calculation of claimant's dues, gratuity etc. payable to this claimant. But it too was not so.
32. If all the pieces of evidence placed by both the parties are viewed collectively, then they portray a picture wherein the Management used to get continuous work from this claimant from 01.01.2000 to 09.11.2006 as a class IV employee employed for the purpose of cleanliness etc. This complete documentation was neither prepared nor tendered to the authorities as required by law. When it was required by this court pursuant to this industrial dispute, it was produced in a strange manner - without clear pleadings - without corroborative evidence.
33. The combination of a doubtful description of letter Ex. WW1/M4x coupled with the reverend enlightenment through Ex. MW1/2 is a highly deficient response to the claim of the claimant. It appears that the services of the workman were terminated in a manner rendering the claimant / workman dissatisfied and hence constituting a 'retrenchment' as defined U/S 2 (oo) of the Industrial Disputes Act which reads as follows : "Retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include AWARD Page 15 of 18 Sh. Amit Kumar Vs. M/s. S. D. Public School & Anr. DID No. 07/07
(a) Voluntary retirement of the workman; or
(b) retirement of the workman on employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non -
renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill - health.
34. The Hon'ble Supreme Court in case Anoop Sharma Vs. Executive Engineer, Public Heath Division No. 1 Panipat (Haryana) (2010) 5 Supreme Court Cases 497 has held that : "We have no hesitation to hold that termination of service of an employee by way of retrenchment without complying with the requirement of giving one month's notice or pay in lieu thereof and compensation in terms of Section 25 F (a) and (b) has the effect of rendering the action of employer as nullity and the employee is entitled to continue in employment as if his service was not terminated."
35. In Krishna Bahadur Vs. Puran Theater, 2004 (103) FLR 146 SC., the Hon'ble Court held that the requirement of Section 25 F (b) the Industrial Disputes Act was imperative. The contravention thereof would render the retrenchment. In the present case there is violation of not only Section 25 F (a) & (b) the Industrial Disputes Act but of Rule 77 the Industrial Disputes Rules also.
AWARD Page 16 of 18Sh. Amit Kumar Vs. M/s. S. D. Public School & Anr. DID No. 07/07
36. Following the aforesaid laws laid down by the Hon'ble Supreme Court of India in Anoop Sharma (Supra) and Krishna Bahadur (Supra) this court also holds that the retrenchment of the workman in the present matter was wrong. The impugned retrenchment of the workman by the Management was legally defective.
37. Hence this court is of the view that the termination of services of the workman Arun Kumar was bad in law. This court is also of the view that this wrong done to the him can only be compensated by awarding him an appropriate amount of compensation. As this court has already held that his service period was from 01.01.2000 to 09.11.2006 and his last drawn wages was Rs.3312/ per month. He would have received an approximate amount of Rs.13,250/ at the time of his retrenchment. This is apart from his gratuity and other consequecial benefits It ought to have been given to him in the year 2006. But it was not given so.
38. This court is of the view that compensation amount should be determined after having regard to the date of appointment, the date of termination, the total length of employment of the workman, his last drawn salary, the present value of rupees as compared to that on the date of retrenchment (i.e. with special effect of inflation in economy and the devaluation of money) and the circumstances in which he was retrenched.
RELIEF :
39. After this period of six years this amount of Rs.13,250/ would have grown to double of its original amount. Therefore, this amount of Rs.13,250/ would have grown double as Rs.26,500/. By this court, this amount is rounded of to Rs.35,000/ as to include the litigation expenses and other AWARD Page 17 of 18 Sh. Amit Kumar Vs. M/s. S. D. Public School & Anr. DID No. 07/07 benefits that ought to have been given to the workman, had he been able to continue his service.
40. Reference is answered accordingly.
41. A copy of this award be sent to the office of the concerned Dy. Labour Commissioner for necessary action.
42. The original documents be returned against acknowledgment back to the party which has filed them and further subject to the filing of the certified copies of the same.
43. File be consigned to the Record Room after completing due formalities. ANNOUNCED IN THE OPEN COURT ON 30.11.2012.
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