Delhi District Court
Between The vs The on 7 December, 2022
IN THE COURT OF SH. LAL SINGH,
PRESIDING OFFICER, LABOUR COURT NO. 02,
ROUSE AVENUE COURT COMPLEX, NEW DELHI.
LID No. : 455/16
Date of Institution : 28.05.2010
Date of Award : 07.12.2022
BETWEEN THE WORKMAN
Sh. Upender S/o Sh. Rajendra Sirohi
R/o 134, Ahata, Rahmatali, Bazeria,
Railway Road, Gaziabad, UP.
Represented by Group-4, Falk Cash Service
Pvt. Ltd., Karamchari Union (Regd.), L-1st,
453/A, Budh Bazar, New Delhi-62.
.... Workman
VERSUS
THE MANAGEMENT OF
1.M/s G4S Cash Services (India) Pvt. Ltd., Building No. 875/2(B-41-42), Opp. CNG Pumping Station, Mahipalpur, New Delhi-37.
2. M/s G4S Cash Services (India) Pvt. Ltd., Through its Managing Director, Registered Office at C-16, Community Centre, Janakpuri, Behind Janak Cinema, New Delhi-58.
.... Management LID No.455/16 Page 1 of 36 AWARD
1. By this award, I shall dispose of the statement of claim filed by the workman challenging his termination on account of alleged misconduct and loss of confidence.
2. In the statement of claim filed by the workman, it is averred that he had been working with M/s G4S Cash Services (India) Pvt. Ltd. as a Custodian since May 2005 and his last drawn wage was Rs. 6,050/- per month and his service record was good. It is also averred by the workman that the management is well known for its anti-labour and unfair labour practices such as denial of overtime wages for extra work after normal duty hours, non- issuance of appointment letters, arbitrary withdrawal of existing benefits of the workers, etc. It is also averred that the Group 4 Falk Cash Services Pvt. Ltd. Karamchari Union is a registered and recognized Trade Union of the workers of the management and the workmen of the management used to take up their grievances through the union. It is further averred that workman had actively participated in forming the union and the workman was an active member of the union and opposed the arbitrary agenda of transferring workmen from Delhi to other states because at the time of joining of workmen, management informed them that they have been recruited for work at Delhi only. It is further averred that the management wanted to implement its own anti-labour policies and also wanted to curtail certain existing benefits of the workers like discontinue of dinner allowances after 10:00 p.m., discontinue of conveyance charges after 10:00 p.m. and also wanted to implement certain new LID No.455/16 Page 2 of 36 conditions on the workmen including transfer of workmen from one place to another, but the union did not agree with the management's new scheme.
3. It is further averred that the management supplied management's proposed agenda / new rules to the union, curtailing some of the existing benefits and wanted to inject additional burden of job on the workmen and withdraw some of the existing benefits. It is further averred that the union did not fully agree with the proposal of the management, however, for the betterment of the management, the union agreed with certain new conditions through its letters dated 06.05.2010 and 07.05.2010. It is also averred that the union totally disagreed with the management's proposal of transferring the workmen from Delhi to other stations, however, union agreed that any individual workman willing to go to other places, they are free to choose the same. It is further averred that this was not liked by the management and management started to victimize the workmen by hook or crook. It is further averred by the workman that in a deep rooted plan to remove the old workers from service, one side management slowly diverted its cash business to private contractors and on the other side calling the workers union for negotiations on a 10 point agenda and the said agenda was about curtailing of certain existing benefits of the workers and transfer of workers from one place to another. It is further averred that the union strongly opposed this and informed the management that the union is a progressive union and willing to workout a mutual solution. It is also averred that when the workman reported for duty on 12.05.2010, he found that the office of the management LID No.455/16 Page 3 of 36 was locked and no management personnel were present in the office and there was only one Guard sitting outside the office and a handwritten notice was found pasted on the gate by the management stating that the management closed it's office with immediate effect. It is further averred that no notice or intimation was given to the workmen or to the labour department about the closure of the office of the management and because of this illegal lock out, workman alongwith other workmen could not resume duty and the officials of the union tried to speak to senior officials of the management at Registered office at Janakpuri, but no one from the management spoke to the union or to the workers including the present workman and thereafter, the union lodged a complaint with Labour authorities, at Hari Nagar, South-West District, Labour Office, New Delhi, about the illegal lockout of the office of the management and urged the authorities to declare the action of the management as well as lock out as illegal. It is also averred that the union had also requested the officials of the labour department to depute some officials to the office of the management at Mahipalpur and Jhandewalan to assess and verify the facts as mentioned in the complaint lodged by the union about the locking of the office of the management and not allowing the workmen to resume duty. Further, on the complaint of the union about the illegal lock out by the management, some officials from Hari Nagar, Labour office had visited the Mahipalpur office of the management and the same was found locked. It is further averred that upon this the officials from the labour department pasted a notice on the gate of the office of the management, thereby calling the management to attend the meeting with LID No.455/16 Page 4 of 36 Deputy Labour Commissioner's office at Hari Nagar, New Delhi on 20.05.2010 at 12.00 noon but none from the management attended the meeting before the said authority and the management was planning to victimize the workman by hook or crook in a colourful manner.
4. It is further stated that since the management was not lifting its illegal lock out and not allowing the workman to resume duty, therefore, union wrote letters to the management that the workman was having key/combination of the ATM and willing to hand over the same to the management and urged the management to receive the same but with bad intention, management did not accept the key/combination nor send any responsible official to collect the key/combination of the ATM with ulterior motives and on the other hand, the management break opened some of the ATMs to put blame on the workers and workers also informed the police about the same. It is further averred that the workmen were willing to handover key/combination to the responsible officials of the management but management simply informed the workers through police to submit the key/combination with the guard sitting outside the locked office. It is further averred that since, lacs of rupees were inside the ATM, hence, the key/combination cannot be handed over to any ordinary person like guard etc., because if any wrong thing happens, then the blame automatically goes to the concerned workmen of the machine and the workmen through the union, time and again informed the management that they were willing to handover key/combination to the management. It is also averred that the management LID No.455/16 Page 5 of 36 intentionally diverted its cash business to some private contractors with an eye to put blame on the workers that the company losses its business because of the workers, whereas, the workers were always willing to work and urged the management to lift the illegal lockout and allow them to resume duty. It is also averred that the workman was daily reporting for duty at Mahipalpur office but the office was locked and hence, he could not resume duty and the entire scene was created by the management against workmen, because they did not fully agree with the management's eight point agenda dated 01.05.2010. It is further stated that the workman received a backdated termination letter dated 15.05.2010, posted on 20.05.2010 and delivered to his address on 14.06.2010 and this termination letter was prepared after the receiving of telegrams and letters from the union to lift the illegal lock out and after the notice from the office of the Dy. Labour Commissioner, calling management to attend the case.
5. It is averred that all the allegations levelled against the workman in the termination letter were not true and correct and same was a cooked up story of the management. It is also averred that workman through his reply dt. 07.06.2010 denied the allegations and urged the management to reinstate him in service with all consequential benefits but the management did not considered his request. It is further stated that in the said termination letter, the management cleverly stated that the company lost confidence in him and hence, not possible to conduct any enquiry and the management reserves it's right to conduct enquiry before the appropriate forum. It is contended by LID No.455/16 Page 6 of 36 the workman that this was just nothing but an attempt to put workman on severe hardships. It is further averred that no chargesheet or show cause was issued to workman prior to his illegal termination order. It is further averred that after receipt of termination letter, workman served a demand notice dated 16.06.2010 to the management to its office address at Mahipalpur and Janakpuri, urging the management to reinstate him in service with continuity of service and full back wages. It is further averred that on 28.05.2010, at 11 a.m., one Mr. Jitesh Pandey (Advocate of the management) had appeared on behalf of the management before Sh. Sushil Kumar, Labour Officer of Hari Nagar, Labour Office and stated that the management had not received copy of complaint and also stated that the management had not locked out it's office, whereas, the officials of the Labour Department including Sh. Sushil Kumar, Labour Officer, had seen personally that the office of the management was locked. It is further averred that after completion of the proceedings at labour office, the union officials received a telephonic message that the office at Mahipalpur and Jhandewalan have been opened and all the managerial staff and few new recruits had joined duty. It is further averred that some private security personnel also started working for the management in place of the existing regular staff and therefore, the union on behalf of the workmen sent telegrams to the management urging them to allow the workmen to resume duty but the management did not allow them to resume duty. Thereafter, a telegram was also sent by the union to the Deputy Labour Commissioner, Hari Nagar thereby urging to depute some LID No.455/16 Page 7 of 36 officials to the office of the management and ensure that regular workers be taken back to duty in their presence. It is also averred that the above action of the management was illegal, wrongful, malafide besides being an act of victimization and unfair labour practices. It is also averred that the work of the workman was being conducted by the mangement through private contractors/security agencies and also through new recruits. It is further averred that the workman is unemployed since his illegal termination from service and he could not get any job despite of his best efforts.
Thus, the workman has prayed that an award be passed in his favour and against the management, thereby directing the management to reinstate the workman in service with all consequential benefits with continuity of service and full back wages and also declare the acts of the management as illegal and unjustified.
6. Notice of the claim was sent to the management. Thereafter, AR of the management put appearance on behalf of management. The management has contested the case and filed the written statement to the statement of claim of the workman. However, after that an application under Section 11 (1) of the ID Act, read with Order 6 rule 17 CPC for amendment of Written statement was filed by the management and said application was allowed vide order dated 08.05.2017. Thereafter, the management has filed amended written statement. In the amended written statement, management has taken various preliminary objections including that the management deployed the claimant for servicing the ATMs of the Bank to which the management had LID No.455/16 Page 8 of 36 been providing services under a contract and the management provided the claimant with the key/codes combination for the respective ATMs, which were changed by the claimant from time to time as per security requirements of the banks. It is also contended that however, the claimant created obstructions in the performance of duties due to which the work of replenishment of ATMs suffered, as a result of which the Bank instructed the management to hand over the key/codes. It is further stated that the claimant was advised to provide key/codes combination and handover possession of respective ATMs to the bank but he refused to hand over the same and held the company and the bank to ransom, which resulted in taking strict action by the bank against the company and since the claimant did not hand over the key/codes combinations and possession of ATMs, the bank was forced to break the locks and install new locks on the said ATMs. It is further contended that because of the deliberate action on the part of the claimant in not handing over the key/codes combination, it not only caused huge financial loss but also caused loss of reputation and business to the company. It is further stated that because of inaction on the part of claimant, not only the management suffered in its business and loss of reputation, it also caused lot of inconvenience to the banks and its customers, as the claimant held with him ATMs as well as money lying in the ATMs and the same could not be put to use without breaking the locks and installing new locks and due to such acts of the claimant in not handing over the key/codes combination resulting in loss of business and reputation of the management, the management also lost confidence in the claimant. It is further LID No.455/16 Page 9 of 36 contended by the management that any further instructions to the claimant on the job could have further caused loss to its business and reputation and thus it was decided to terminate the services of the claimant and the same was done vide letter dated 15.05.2010, which was duly sent to the claimant at his last known available address.
7. It is further contended that the services of the claimant were terminated after he repeatedly refused to follow the lawful instructions of the management to hand over the key/codes combination resulting in loss of business and reputation of the management company. Management also specifically denied that by the said proposed agenda, the management wanted to inject additional burden of jobs or that the said agenda was to curtail certain existing benefits of the workers and transfer the workers from one place to another. In the written statement, the management also stated that since there was no lockout, hence, there was no question of lifting the same by the management as alleged. The management further contended that in view of the nature of misconduct committed by the claimant and the fact that the management having lost confidence in the workman/claimant, it was not desirable or practicable to conduct domestic enquiry. The management also denied that any demand notice was sent by the claimant to the management. It is further contended that the action of the management thereby terminating the workman is legal, valid and justified in all respect and as such workman is not entitled to any relief against the management. It is prayed by the management that the whole claim of the claimant / workman is without merit or substance and the same is liable to be dismissed.
LID No.455/16 Page 10 of 368. The claimant/workman has filed the rejoinder to the amended written statement of the management, in which he denied all the contents of the amended written statement and reiterated and reaffirmed the contents of the statement of claim and prayed that each and every averments and contents of the preliminary objections of para 1 to 3 and parawise reply of para 1 to 19 of the amended written statement of the management be dismissed and pass an award in favour of the workman, directing the management to reinstate the workman in service with all consequential benefits and also declare the action of the management as illegal and malafide.
9. Vide order dated 29.03.2012, Ld. Predecessor Court framed the following issues:-
1. Whether the workman committed gross misconduct for which he was dismissed from service without holding any enquiry and if yes, to what effect? OPM
2. Whether the services of the workman were illegally and unjustifiably terminated? OPW
3. Relief.
10. In the instant matter, in support of his claim, the workman Sh. Upender has examined himself as WW1. Workman / WW1 Upender has tendered his evidence by way of affidavit vide Ex.WW1/A and in his evidence, he has reiterated all the facts as mentioned in his statement of claim. The workman/WW1 has also relied upon the documents i.e. letter of termination of services dated 15.05.2010 vide Ex.WW1/1, copy of representation/demand notice by the workman to the LID No.455/16 Page 11 of 36 management to reinstate him in service vide Ex.WW1/2, two postal receipts vide Ex.WW1/3 (colly), copy of agenda dated 01.05.2010 of the management vide Ex.WW1/4, copy of letter dated 04.05.2010 given by the union to the management vide Ex.WW1/5, copy of undated letter of the management addressed to the union vide Ex.WW1/6, copy of letter dated 06.05.2010 of the management addressed to the union vide Ex.WW1/7, copy of letter dated 06.05.2010 of the union to the management regarding letter dated 01.05.2010 of the management vide Ex.WW1/8, copy of reply dated 06.05.2010 and 07.05.2010 of the union to the agenda of the management vide Ex.WW1/8A & Ex.WW1/9 respectively, copy of complaint dated 13.05.2010 by the union to the Dy. Labour Commissioner against the management regarding illegal lock out vide Ex.WW1/10, copy of complaint given to Managing Director of the management by the union vide Ex.WW1/11, copy of Bharat Sanchar Nigam Limited Receipt vide Ex.WW1/12, copy of complaint given by the union to the Labour Commissioner against the management vide Ex.WW1/13, copy of Bharat Sanchar Nigam Limited Receipt vide Ex.WW1/14, copy of complaint given by the union to the Commissioner of Police, I.P. Estate, New Delhi against the management vide Ex.WW1/15, copy of Bharat Sanchar Nigam Limited Receipt vide Ex.WW1/16, copy of complaint dated 18.05.2010 given by the union to the Managing Director of the management regarding refusal of duty to more than 600 workers working with the management since 12.05.2010 onwards vide Ex.WW1/17, copy of complaint dated 18.05.2010 given by the union to the Managing Director of the management against the LID No.455/16 Page 12 of 36 management for breaking ATM vault and machine hood cover lock vide Ex.WW1/18, copy of notice dated 18.05.2010 issued by Sh. Sushil Kumar labour officer to the management regarding alleged illegal lock out w.e.f. 12.05.2010 vide Ex.WW1/19, copy of registration certificate of the union vide Ex.WW1/20, copy of letter dated 14.03.2011 of the union to the Deputy Registrar Trade Union's regarding annual return of the union for the year 2010 alongwith list of office bearers for the year 2011-2012 vide Ex.WW1/21 and copy of list of terminated & transferred employees vide Ex.WW1/22.
11. In his cross examination, the workman has deposed that he had been working with the management as Custodian since May 2005 and he had given an application form for employment to the management at the time of his employment with the management. He has further deposed that he was not given any appointment letter by the management and he had never asked for the letter of appointment in writing to the management. In his cross examination, WW1 admitted that the work of the management was to provide replenishment in the ATM and management used to take contract from the Bank and Private Parties for providing the above said business. WW1 also admitted that the work used to be performed by him was work of responsibility. Workman also admitted that he has not filed any document to show that he was active member of the union. He also admitted that prior to the demand notice Ex.WW1/2, he had never written any letter to the management personally complaining of violation of condition of service or raising demand of Industrial relations. He stated that he did not write any LID No.455/16 Page 13 of 36 letter to the management between 01.05.2010 till 15.05.2010 both inclusive asking the management to take back the ATM Code. However, he made a call to Mr. R. S. Chauhan, Manager (ATM) asking him to take ATM codes from him but they did not take back the ATM codes. He admitted that ATM secret codes are quite necessary for operation of any ATM. He denied to the suggestion that he did not provide the ATM Code combination to the management despite management repeatedly asking the same. Workman/WW1 also denied to the suggestion that since, he did not hand over the key/code combination, the banks were forced to break open the locks and installed new locks at the said ATMs. Workman/WW1 has stated that no 'Dharna', 'Gheraow' and/or demonstration took place at the gate of the management between 01.05.2010 till 15.05.2010. The workman has denied to the suggestion that he alongwith other workers did not allow the willing workers/employees to enter the premises of the management company for doing their duty. He denied to the suggestion that because of the obstruction created by him, work of replenishment of ATM suffered and also because of his refusing to handover the key/code combination of the respective ATMs, he held the company and the bank to ransom, which resulted in taking action by the bank against the management. He also denied to the suggestion that because of the acts of insubordination by him and not handing over the key/code combination resulting in loss of business and reputation of the management, the management lost confidence in him. MW1 also denied to the suggestion that his termination by the management LID No.455/16 Page 14 of 36 on account of various acts committed by him leading to loss of confidence, was legal, valid and justified in all respects.
12. On the other hand, the management had examined three witnesses i.e. Sh. Gouranga Kar, Manager Operations of the management as MW1, Sh. Lokender Singh, Vault Executive of the management as MW2 and Sh. Praveen Roy, Vice President of the management as MW3.
13. Sh. Gouranga Kar (MW1) has tendered his evidence by way of affidavit vide Ex.MW1/A (on the affidavit exhibit number as Ex. MW1/1 has been given instead of Ex. MW1/A). MW1 also relied upon the documents i.e. copy of request for security of office building dated 01.05.2010 addressed to SHO PS Vasant Kunj, New Delhi vide Ex.MW1/1 (Colly.), copy of management's agenda dated 01.05.2010 vide Ex.MW1/2, copy of reply of the management to the union's letter dated 04.05.2010 vide Ex.MW1/3, copy of another reply of the management dated 06.05.2010 to the letter of union vide Ex.MW1/4, copy of request letter dated 12.05.2010 for protection of the management's property as addressed to SHO PS Vasant Kunj, New Delhi vide Ex.MW1/5, copy of police complaint dated 12.05.2010 against the Custodians as given to Assistant Commissioner of Police, Vasant Vihar, New Delhi vide Ex.MW1/6, copy of another police complaint dated 15.05.2010 against Mr. Jagbir Singh and Sunil Singhal for giving life threats, as given to SHO PS Vasant Kunj, New Delhi vide Ex.MW1/7, copy of OPD treatment prescription slip of Singh Dilip dated 15.05.2010 vide Ex.MW1/8, copy of another police complaint dated 15.05.2010 against Mr. Jagbir Singh and Sunil Singhal for giving life threats, as given to SHO LID No.455/16 Page 15 of 36 PS Vasant Kunj, New Delhi vide Ex.MW1/9, copy of treatment prescription slip of Singh Devander dated 15.05.2010 vide Ex.MW1/10, copy of complaint dated 17.05.2010 against Mr. Jagbir Singh and Sunil Singhal as given to Dy. Commissioner of Police, Hauz Khas, New Delhi vide Ex.MW1/11, copy of notice dated 18.05.2010 to the President of the union regarding meeting scheduled with the management on dated 19.05.2010 vide Ex.MW1/12, copy of complaint u/s 200 Cr.P.C. filed by Davinder Singh against Jagbir Singh, Sunil Singhal and Dhan Singh before the court of Ld. Addl. CMM, South-East, Patiala House Court, New Delhi vide Ex.MW1/13, copy of application u/s 156 (3) Cr.P.C. filed by Davinder Singh against Jagbir Singh, Sunil Singhal and Dhan Singh before the court of Ld. Addl. CMM, South East, Patiala House Court, New Delhi vide Ex.MW1/14, copy of request letter dated 22.05.2010 for implementation of injunction as per High Court Orders as addressed to SHO PS Vasant Kunj, New Delhi vide Ex.MW1/15, copy of another police complaint dated 29.05.2010 against Jai Pal Singh for giving life threats, as addressed to SHO PS Vasant Kunj vide Ex.MW1/16, copy of complaint dated 14.06.2010 regarding breaching the High Court order and threatening to burn the company premises and life threat for Managing Director, as addressed to SHO PS Vasant Kunj North (South District) vide Ex.MW1/17, copy of another police complaint dated 15.06.2010 as addressed to SHO PS Vasant Kunj-North, New Delhi, regarding life threats from the workers vide Ex.MW1/18, copy of bill dated 15.06.2010 raised by V and C Services regarding LID No.455/16 Page 16 of 36 breaking / repairing of the ATMs vide Ex.MW1/19, copy of account statement vide Ex.MW1/20.
14. MW-1 Sh. Gouranga Kar was cross examined by the AR for the workman. In his cross examination, MW1 has admitted that the management M/s G4S Cash Services (India) Pvt. Ltd. is in operation. He deposed that M/s G4S Cash Services (India) Pvt. Ltd. and M/s G4S Cash Solutions (India) Pvt. Ltd. are not separate companies but the name of M/s G4S Cash Services (India) Pvt. Ltd. has now been changed to M/s G4S Cash Solutions (India) Pvt. Ltd. MW1 has denied to the suggestion that prior to the termination of the employees including the present workman, the management did not issue any show cause notice to them. However, after seeing the file, he stated that show cause notice was sent to the workman by the management but same is not on the court file. He further denied to the suggestion that no such show cause notice was ever issued and therefore, it is not on record. He admitted that the management used to resolve all issues pertaining to any dispute between the management and the workman through the union. He denied to the suggestion that the dispute arose when the management decided to put pressure upon the workmen by threatening to transfer them outside Delhi. He further deposed that he does not have any knowledge regarding 8 point agenda of the management given by the management to the union for their reply. During his cross examination, MW1 stated that he does not know about the clauses of the agenda. He also stated that it is incorrect that the management stopped receiving the workman on duty w.e.f. 13.05.2010 onwards. He further deposed that he joined his duties LID No.455/16 Page 17 of 36 at 08.00 a.m. on 13.05.2010 and the workers were on strike on that day and the strike continued for 20-25 days. He further deposed that the management once issued notice to the workers but he does not remember the date, calling them to call off the strike and resume duty. MW1 denied to the suggestion that no strike call was given by the workers nor any such notice was issued to them. He deposed that the management never sent any notice to the labour department informing about the workers proceeding on strike. He further deposed that the letter dated 01.05.2010 of the management to the SHO regarding the strike is Ex.MW1/1 (colly.). MW1 denied to the suggestion that the custodians wanted to deliver key codes and combinations to the management in the presence of the IO of the PS Vasant Kunj or that the management intentionally not collected the same as they wanted to implicate the workman in false police cases. He admitted that the management had not registered any police case against custodians regarding refusal of handing over key codes and combinations. MW1 further deposed that the entire key code and combinations were broken by the company itself in the presence of the bank staff, who installed a fresh machine. He has denied to the suggestion that no such action was initiated. MW1 admitted that no police was called while breaking the key codes and combinations and bank official was called while breaking the key codes and combinations. He also denied to the suggestion that the workers never refused to hand over the key codes. MW1 further denied to the suggestion that the gunmen posted with the management were deliberately transferred outside Delhi in order to harass them. He also deposed that the workmen were not taken LID No.455/16 Page 18 of 36 on duty because they were on strike. However, MW1 stated that he does not possess any document to show that the workmen were on strike. He has denied to the suggestion that no such document is in existence. MW1 admitted that CCTV camera has been installed outside the office and also that in case the workers would have gone on strike or would have created ugly scenes, that would have been recorded in the CCTV footage. He also admitted that no such CCTV footage has been filed in the court. He has denied to the suggestion that since no such act was done by the workers, therefore, no such footage has been filed or that the workmen were terminated from service because of their not agreeing with the proposed 8-point agenda of the management and opposing the illegal lock-out of the company. He further deposed that he cannot say if the workman has been illegally terminated by the management.
15. Management also examined Sh. Lokender Singh as MW2. Sh. Lokender Singh (MW2) has tendered his evidence by way of affidavit vide Ex. MW2/A. In his cross examination, MW2 has admitted that work of the management from 01.05.2010 upto 11.05.2010 was smoothly going on. In his cross examination, he further stated that on 12.05.2010, he was on route, hence he does not know whether the workman had refused to join duty. MW2 denied to the suggestion that the workman was not taken on duty on 12.05.2010. MW2 also stated that he heard that management advised the workman to handover the key/codes to the management. He denied to the suggestion that workmen offered handing over key/code of ATM to the management. MW2 admitted that Mr. Balan was the LID No.455/16 Page 19 of 36 Managing Director of the company during the period of 01.05.2010 to 30.05.2010. He stated that he does not know if Ex.MW1/19 bears the signatures of Mr. Balan at point X. MW2 shown his ignorance if document Ex.MW1/19 was prepared/forged after termination of the workman. He admitted that on 12.05.2010 when workmen reached the office of the management, gate was locked. In his cross examination MW2 also shown his ignorance if the services of the workman was terminated because workman supported his union and objected to implement Eight Point Agenda of the management.
16. Management has also examined Sh. Praveen Roy as MW3. Sh. Praveen Roy, MW3 has tendered his evidence by way of affidavit vide Ex. MW3/A and he relied upon the documents Ex. MW3/1 PF contribution statements and Ex. MW3/2 ESI records as filed in case ID No. 1286/16 i.e. Sonu Dogra vs M/s G4S Cash Services (India) Pvt. Ltd.
In his cross examination, MW3 stated that he does not remember as to when the name of M/s G4S Cash Services India Pvt. Ltd. was changed to M/s G4S Cash Solutions India Pvt. Ltd. MW3 admitted that the appointment letter of the concerned workman was not issued in his presence.
17. Arguments of Ld. AR for the workman and Ld. AR for the management heard and they have also filed their respective written submissions/arguments.
18. Ld. AR for the workman submitted that the workman had been working with the management of M/s G4S Cash Services (India) Pvt. Ltd. as Custodian since May 2005 and his last drawn wage was Rs. 6,050/- per month and service record of workman LID No.455/16 Page 20 of 36 was good. He also submitted that Group 4 Falk Cash Service Pvt. Ltd. Karamchari Union is a registered and recognized Trade Union of workers of the management and the workman was an active member of the union. He also argued that the services of the workman were illegally and wrongfully terminated by the management w.e.f. 15.05.2010 through a back dated termination letter dated 15.05.2010 in violation of the principles of natural justice and also in contravention of Section 25F of the ID Act 1947 on flimsy ground without holding any enquiry. He also submitted that no chargesheet or show cause notice was issued to the workman prior to his illegal termination from service. He has also submitted that termination of the workman by the management was illegal and malafide, just to victimize the workman because of his not accepting the eight point agenda of the management. He also argued that the workman had never committed any misconduct as alleged against him and hence, there is no question of loss of confidence in him by the management. AR of the workman submitted that workman is entitled for his reinstatement in service at Delhi with all consequential benefits.
19. On the other hand, Ld. AR for the management submitted that the management deployed the workman for servicing the ATMs of the bank, to which, the management had been providing services under a contract. He also argued that the management provided the workman with the key/codes combination for the respective ATMs, which were changed by the claimant / workman time to time as per the security requirement of the bank. He also submitted that the claimant/workman created LID No.455/16 Page 21 of 36 obstructions in the performance of duties, due to which, the work of replenishment of ATMs suffered, as a result of which, the bank instructed the management to handover the keys/codes but despite of request, the workman refused to handover the same and held the company and the bank to ransom, which resulted in taking strict action by the bank against the company. He further argued that because of deliberate action on the part of the workman in not handing over the key/codes combination, it not only caused huge financial loss but also caused loss of reputation and business to the management company. AR for the management also argued that the services of the claimant were terminated on the ground of misconduct resulting in loss of confidence as well as after he refused to follow the lawful instructions from the management to hand over the key/codes combination and as such the action of the management was legal, valid and justified in all respect.
20. I have considered the above submission of Ld. AR for workman as well as Ld. AR for the management and also given thoughtful consideration to their respective written submissions and case laws relied by them and also carefully perused the file and gone through the evidence on record.
21. My issue wise finding are as under:
Firstly, I shall deal with issue No.1.
Issue No.1: Whether the workman committed gross misconduct for which he was dismissed from service without holding any enquiry and if yes, to what effect? OPM Onus to prove this issue was upon the management.LID No.455/16 Page 22 of 36
In the instant matter, the management had terminated the workman from service vide termination letter dated 15.05.2010 vide Ex. WW1/1 without holding any enquiry. It is the contention of the AR for the management that the services of the workman/claimant were terminated after he repeatedly refused to follow the lawfull instructions of the management to handover the key/codes combination, resulting in loss of business and reputation of the management. It is also the contention of the Ld. AR for the management that in case of misconduct resulting in loss of confidence, employer is not bound to hold any enquiry and it is not mandatory for the management to hold enquiry before termination and management can prove the misconduct of the workman by adducing evidence during trial before the trial court and in the instant case also management has adduced the sufficient evidence to show the misconduct of the workman. The management examined Sh. Gouranga Kar as MW1 so as to establish the contentions of the management. MW1 in his affidavit Ex.MW1/A (on the affidavit exhibit number has been given as Ex. MW1/1 instead of Ex. MW1/A) stated that the management deployed the claimant for servicing the ATMs of the bank to which the management had been providing service under a contract. In his affidavit, he further stated that the management provided the claimant with the key/codes combination for the respective ATMs, which were changed by the claimant from time to time as per security requirements of the bank and during the period from 01.05.2010, the claimant created obstructions in performance of duties due to which, the work of replenishment of ATMs suffered, as a result of which, the bank instructed the LID No.455/16 Page 23 of 36 management to handover the key/codes. Further, MW1 in his affidavit also stated that the claimant was advised to provide key/codes combination of the respective ATMs to the bank, but the workman refused to handover the same and held the management and the bank to ransom, which resulted in taking strict action by the bank against the management company. It is also stated by MW1 in his affidavit that the services of the claimant were terminated after he repeatedly refused to follow the lawful instructions of the management to handover the key/codes combination resulting in loss of business and reputation of the management company and the management having lost confidence in the workman/claimant.
22. In support of its contentions, the management has relied upon the judgment titled as Johnson and Johnson Ltd. Vs Gajendra Singh Rawat, passed by Hon'ble High Court of Delhi in W.P.(C) 7826/2008 & Crl. MA 15112/2008 on 09.09.2016, wherein it was held as under:
"12. First question for consideration is what is the effect of not conducting a disciplinary inquiry before terminating the services of the workman. The issue was dealt in detail in Municipal Corporation of Greater Bombay (supra). In that case, the services of the workman were terminated on account of unsatisfactory record of service. On factual matrix of the case, it was found that the order of termination was not punitive in character so as to invite disciplinary inquiry. It was further held that even if order of termination of service of the workman was punitive in character and could not have been passed save and except as a result of a disciplinary inquiry, the impugned order cannot be struck down as invalid on the ground of non- compliance with the requirement of standing orders since the workman availed of the opportunity open to her before the Labour LID No.455/16 Page 24 of 36 Court when the management adduced sufficient evidence to show that the impugned order terminating the service of the workman was justified. This view was fortified by a catena of decisions where it has been consistently held that no distinction can be made between cases where the domestic enquiry is invalid or defective and those where no enquiry has infact been held as required by the relevant standing orders and in either case it is open to the employer to justify his action before the Labour Tribunal by adducing all relevant evidence before it. Reference in this regard was made to The Punjab National Bank Ltd Vs. Its Workmen (1960)1 S.C.R.806, Management of Ritz Theatre(P) Ltd Vs. Its Workmen(1963) 3 S.C.R.461, Workmen of Motipur Sugar Factory (Private) Ltd. Vs. Motipur Sugar Factory (1965) 3 S.C.R. 588, Delhi Cloth and General Mills Co. Ltd Vs. Ludh Budh Singh (1972) 1 LLJ 180, State Bank of India Vs. R.K.Jain and Ors.(1972) 1 S.C.R 755, Workmen of Messrs Firestone Tyre & Rubber Company of India(P) Ltd. Vs. Management & Ors.(1973) 3 S.C.R.587 and Cooper Engineering Limited Vs. P P Mundhe (1976) 1 S.C R 361.
In Santa Cement Works & Anr Vs. Bachchan Lal Srivastava & Ors, 1997 II CLR 67 also reference was made to D.K.Yadav Vs. J.M.A. Industries,1993 (67) FLR 111(SC) wherein it was held that although the recent trend is to insist on giving an opportunity of hearing, despite any provision in the Standing Orders, however, even if no enquiry was held before termination of services, the employer can lead evidence before the Tribunal to justify its action. In view of the same, even if before terminating the services of the workman, no enquiry was held, the termination order cannot be held to be illegal on that ground alone as the management availed the opportunity of leading evidence before the Labour Court and adduced evidence justifying its action taken against the workman."
23. However, it is the contention of the workman that workman has not committed any misconduct and all the allegations against the workman are false and frivolous. It is also the contention of LID No.455/16 Page 25 of 36 the workman that since, the workman alongwith other workmen through the union opposed the Proposed Agenda of the management and hence, the management has taken action against the workman by dismissing him from service.
24. In the judgment titled as L. Michael & Another vs M/s. Johnson Pumps Ltd. (1975)1 SCC 574 Hon'ble Supreme Court has held as under:
"20. In the light of what we have indicated, it is clear that loss of confidence is often a subjective feeling or individual reaction to an objective set of facts and motivations. The Court is concerned with the latter and not with the former, although circumstances may exist which justify a genuine exercise of the power of simple termination. In a reasonable case of a confidential or responsible post being misused or a sensitive or strategic position being abused, it may be a high risk to keep the employee, once suspicion has started and a disciplinary enquiry cannot be forced on the master. There, a termination simpliciter may be bona fide, not colourable, and loss of confidence may be evidentiary of good faith of the employer.
21. In the present case, the catalogue of circumstances set out in the earlier part of the judgment strikes a contrary note. The worker was not told when he wrote; the union was not disclosed when they demanded; the Labour Court was treated to verbal statements like 'very reliable sources' and other credulous phrases without a modicum of evidence to prove bona fides. Some testimony of unseemly attempts by the workman to get at secrets outside his orbit, some indication of the source of suspicion, some proof of the sensitive or strategic role of the employee, should and would have been forthcoming had the case been bona fide. How contradictory, that even when a strong suspicion of leaking out sensitive secrets was being entertained about the employee who LID No.455/16 Page 26 of 36 was being given special merit increments over and above the normal increments! A case of res ipsa loauitur. Circumstances militate against the 'I say so' of M.W.1 that the management had suffered an ineffable loss of confidence. To hit below the belt by trading legal phrases is not Industrial Law. We are constrained to express ourselves unmistakably lest industrial unrest induced by wrongful terminations based on convenient loss of confidence should be generated.
22. Before we conclude we would like to add that an employer who believes or suspects that his employee, particularly one holding a position of confidence, has betrayed that confidence, can, if the conditions and terms of the employment permit, terminate his employment and discharge him without any stigma attaching to the discharge. But such belief or suspicion of the employer should not be a mere whim or fancy. It should be bona fide and reasonable. It must rest on some tangible basis and the power has to be exercised by the employer objectively, in good faith, which means honestly with due care and prudence. If the exercise of such power is challenged on the ground of being colourable or mala fide or an act of victimisation or unfair labour practice, the employer must disclose to the Court the grounds of his impugned action so that the same may be tested judicially."
Further, in the judgment titled as STATE BANK OF TRAVANCORE Vs PREM SINGH, passed by Hon'ble High Court of Delhi in W.P.(C) 11160/2004 & CM APPLN. 32904/2017, 42326/2018 on 10.04.2019, observed as under:
"32. The plea of 'loss of confidence' by the employer has to be bona fide. Loss of confidence cannot be subjective. It has to rest on some objective facts, which would induce a reasonable apprehension in the mind of the management regarding the LID No.455/16 Page 27 of 36 trustworthiness of the employee and the power has to be exercised by the employer objectively in good faith, which means honestly with due care and prudence. Otherwise, a valuable right of reinstatement to which an employee is ordinarily entitled to, on a finding that he is not guilty of any misconduct, will be irretrievably lost to the employee."
Thus, in view of legal position as held in aforesaid judgment, it is amply clear that the alleged misconduct by the workman is required to be duly proved by the management and plea and contention of loss of confidence as asserted by the management has to be bona fide and loss of confidence cannot be subjective, rather it has to rest on some objective facts which would induce a reasonable apprehension in the mind of the management regarding the trustworthiness of the employee and power has to be exercised by the employer objectively in good faith, which means honestly with due care and prudence.
25. As per the workman, he joined with the management since May 2005 as a Custodian and his last drawn wage was Rs. 6,050/- per month. In his affidavit Ex.WW1/A, workman stated that his service record was good. It is further stated by the workman in his affidavit that Group 4 Falk Cash Service Pvt. Ltd. Karamchari Union was the registered and recognized union of the workers of the management and he had also actively participated in several peaceful agitations in support of the cause of the workers of the company alongwith other workers of the management company. The workman/WW1 in his affidavit stated that through the union, time and again, the workers informed the management and the police officials that they were willing to handover the key/codes in the presence of some officials but the management did not come LID No.455/16 Page 28 of 36 forward to collect the same. It is further stated by the workman in his affidavit that during the illegal lockout period, the management started diverting it's cash business to some private contractors with an eye to blame on the workers, whereas, the workers were daily reporting for duty at the work place but the management did not allow them to resume duty and forcibly kept them out from duty, because they opposed the management's Eight Point Agenda. In his cross examination also, WW1/workman has denied to the suggestion that he did not provide the ATM code combination to the management despite the management repeatedly asking for the same. WW1 also stated that he made a call to Mr. R. S. Chauhan, Manager (ATM) asking him to take ATM codes from him (workman) and he told him that they will take back the ATM codes but they did not take back the ATMs code and afterwards, Mr. R. S. Chauhan stopped picking up his telephone calls.
26. MW1 Sh. Gouranga Kar in his affidavit stated that due to the acts of insubordination by the claimant and also his not handing over the key/codes combination, resulting in loss of business and reputation of the management, the management lost confidence in the workmen and accordingly, it was decided to terminate the services of the claimant / workman and the same was done vide letter dated 15.05.2010.
However, in his cross examination, MW1 admitted that the management had not registered any police case against custodians regarding refusal of handing over the key codes and combinations. MW1 also stated that management never sent any notice to labour department informing about the workers proceedings on strike. He also stated that the workmen were not taken on duty because they LID No.455/16 Page 29 of 36 were on strike. MW1 also stated that he does not possess any document to show that the workmen were on strike. MW1 also admitted that in case the workers would have gone on strike or would have created ugly scenes, that would have been recorded in the CCTV footage. MW1 also admitted that no such CCTV footage has been filed in the court.
27. Moreover, in his cross examination, MW2 Lokender Singh stated that he had heard that the management had given an Eight Point Agenda to the union to discuss with them. MW2 also admitted that after the meeting, the union had given its proposal to the management's agenda to the management. However, he has shown his ignorance if any settlement had been arrived at between the union and management. Further in his cross examination, MW2 also admitted that key/codes of ATM are separately given to the custodian and not disclose one key/code to another custodian. He further stated that he cannot produce any document showing that management advised the workman to handover key/codes with the company. MW2 specifically stated that management had not instructed the workman to handover the key/codes in his presence. MW2 also admitted that lock of the ATM was not broken/opened in his presence. Rather, he stated that he heard that some of the ATMs locks were broken. MW2 categorically deposed in his cross examination that he does not know who had broken the ATMs locks. He further stated that he had heard that ATMs locks were break open by 10-15 employees who were standing at the gate of the company. However, he also stated that he does not know their names. Further, in his cross examination, MW2 also specifically stated that he does not know whether the management LID No.455/16 Page 30 of 36 had lodged any complaint with the police against the workman for breaking open ATMs locks. MW2 in his cross examination also stated that he does not know whether the workman offered handing over key/code of ATMs to the management but the management did not come forward to collect the same. Moreover, to a specific question put by the AR for the workman from MW2 Sh. Lokender Singh, MW2 stated that he does not possess any document to show that management suffered huge financial losses or reputation on account of acts of the workman.
28. On the contrary, the workman specifically stated in his affidavit Ex.WW1/A that just because the union did not agree with the management's Eight Point Agenda dt. 01.05.2010, hence, on 12.05.2010 when he (workman) and other fellow-workmen reported for duty, they found that the office of the management was locked and no management personnel was present there or nearby and a handwritten notice was found pasted on the gate of the management company stating that management closed it's office with immediate effect. Further in his cross examination, WW1 denied to the suggestion that because of the obstructions created by him, the work of replenishment of ATMs suffered or that because of his refusing to handover the key/code combination of the respective ATMs, he held the company and the bank to ransom which resulted in taking action by the bank against the management. WW1/workman also specifically denied to the suggestion that because of the acts of insubordination by him and not handing over the key/code combination resulting in loss of business and reputation of the management, hence the management also lost confidence in him. Thus, the LID No.455/16 Page 31 of 36 workman/WW1 has specifically denied all the allegations of the management regarding alleged misconduct and loss of confidence.
29. Moreover, MW1 Sh. Gouranga Kar has relied upon the documents Ex.MW1/6 i.e. complaint dated 12.05.2010 given to the Assistant Commissioner of Police, Vasant Vihar, New Delhi, against Custodians for handing over the company/bank's property, document Ex.MW1/7 i.e. complaint dated 15.05.2010 addressed to SHO Vasant Kunj, New Delhi, against Mr. Jagbir Singh and Sunil Singhal for giving life threats, document Ex.MW1/11 i.e. complaint dated 17.05.2010 addressed to Deputy Commissioner of Police, Hauz Khas, New Delhi against Mr. Jagbir Singh and Sunil Singhal, document Ex.MW1/16 i.e. complaint dated 29.05.2010 addressed to SHO PS Vasant Kunj regarding life threat given by Jai Pal Singh and document Ex.MW1/18 i.e. complaint dated 15.06.2010 addressed to SHO PS Vasant Kunj, New Delhi regarding life threats from workers. By relying abovesaid complaints given to the Police by the management, MW1 Sh. Gouranga Kar trying to show that management had given various complaints against the workers for not handing over the key/codes combinations/management's/bank's property as well as threats given by the workers. However, in the abovesaid complaints given by the management to the police, the name of the present workman is no where reflected or mentioned. If the present workman had created any obstruction or refused to handover the key/code combination of the ATMs, then certainly the management should have also lodged the complaints against the present workman. Since, no complaint has been given against the present workman, specifically mentioning his name before any LID No.455/16 Page 32 of 36 authority including police, this itself shows that the workman had not created any obstruction and also not committed any alleged misconduct. Moreover, management also failed to establish that the workman refused to handover the key/code combination to the management. Rather the workman in his evidence specifically stated that the management did not come forward to collect the key/code combination despite of his telephonic request to Sh. R. S. Chauhan, Manager (ATM) of the management.
Thus, in view of the abovesaid discussion and evidence on record, it is difficult to believe the alleged version of the management regarding the misconduct alleged to be committed by the workman. Therefore, in the absence of any convincing evidence against the workman regarding the misconduct, the management has failed to establish the alleged misconduct against the workman.
Accordingly, the issue No.1 is decided against the management and in favour of the workman.
30. Now I shall deal with the Issue No.2.
Issue No.2: Whether the services of the workman were illegally and unjustifiably terminated? OPW The onus to prove this issue is upon the workman. It is the contention of the workman that his services were terminated illegally and unjustifiably by the management. It is the contention of the management that the services of the workman was terminated due to misconduct and loss of confidence. Since, as per the findings on issue No.1, on the point of misconduct, the management has failed to prove that the workman had committed LID No.455/16 Page 33 of 36 any misconduct, for which his services were terminated. As such, it is held that the services of the workman were terminated by the management illegally and unjustifiably.
Accordingly, issue No.2 is decided in favour of the workman and against the management.
ISSUE NO.3 (RELIEF)
31. Since, it is held that the services of workman were terminated by the management illegally and unjustifiably, hence, termination of workman is hereby set aside.
However, so far as, relief part is concerned, in the statement of claim, the workman has prayed that the management be directed to reinstate the workman in service with all consequential benefits alongwith continuity of service and with full back wages and declare the acts of the management as illegal and unjustified. Thus, the workman prayed for his reinstatement with all consequential benefits. However, in the given facts and circumstances of the case, this court is of the considered opinion that both the parties have lost faith in each other and long time has been passed since the termination of the workman, hence, reinstatement of the workman in service would not be in the interest of both the parties. Rather this court is of the opinion that instead of reinstatement, if the compensation is granted to the workman, then, the interest of justice would be served.
In the judgment titled as Indian Hydraulic Industries Pvt. Ltd Vs Kishan Devi and Bhagwati Devi & Ors. ILR (2007) I Delhi 219, passed by the Hon'ble High Court of Delhi, wherein it was held that:-
LID No.455/16 Page 34 of 36"It is now settled law that even if the termination of a person is held illegal, the Labour Court is not supposed to direct reinstatement along with full back wages and the relief can be moulded according to the facts and circumstances of each case. The Labour Court can allow compensation to the workman instead of reinstatement and back wages.."
Further, in the judgment titled as Central P & D Inst. Ltd. Vs. Union of India & Another, AIR 2005 Supreme Court 633, as passed by Hon'ble Supreme Court of India, it was held as under:-
"it is not always mandatory to order reinstatement after holding the termination illegal, and instead compensation can be granted."
32. Thus, now coming to the aspect of compensation, the period of service of the workman as well as the last drawn salary of the workman are also required to be taken into consideration. The workman claimed that his last drawn salary was Rs. 6,050/- per month. The management did not specifically dispute this fact in its written statement. Accordingly, the last drawn salary of the workman is deemed to be as Rs.6,050/- per month. The length of service of the workman is about 05 years. The present case is pending since 2010. Therefore, considering all the above facts and circumstances as well as keeping in view the aforesaid legal position, this court is of the considered opinion that the ends of justice will be served if a lump sum compensation is awarded to the workman in lieu of his reinstatement, back wages and consequential benefits. Accordingly, a lump sum compensation of LID No.455/16 Page 35 of 36 Rs. 1,33,000/- (Rupees One Lac Thirty Three Thousand Only) is awarded to the workman in lieu of reinstatement, back wages and consequential benefits. The management is directed to pay the said lump sum compensation amount of Rs. 1,33,000/- (Rupees One Lac Thirty Three Thousand Only) to the workman within two months from the date of publication of award, failing which, the workman shall be entitled to recover the said lump sum compensation amount of Rs. 1,33,000/- (Rupees One Lac Thirty Three Thousand Only) from the management alongwith the interest @ of 9% per annum from the date of award till the date of realization of the said amount.
33. A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules.
34. File be consigned to Record Room as per rules after due compliance. Digitally signed LAL by LAL SINGH Date:
SINGH 2022.12.07 16:29:27 +0530 Announced LAL SINGH in the open court PRESIDING OFFICER, LABOUR COURTÂ02 on 07.12.2022 ROUSE AVENUE COURT COMPLEX, NEW DELHI LID No.455/16 Page 36 of 36