Delhi District Court
Relied Upon The Authorities Reported As ... vs Jagpal on 23 April, 2007
1
IN THE COURT OF SH. S.K. SARVARIA,
PRESIDING OFFICER LABOUR COURT, No. XII, KARKARDOOMA,
DELHI
ID No. 845/2004/2000
BETWEEN
Sh. Pawan Kumar,
C/o Shram Sevi Janata Mazdoor Union,
Shaheed Sukhdev Nagar,
Near A-111/2, Wazirpur, Industrial Area,
Delhi. ..........Workman.
AND
i) M/s Machino Touch Industries,
A-114/2 Wazirpur, Industrial Area,
Delhi.
ii) M/s Jain Metal,
A-114/2 Wazirpur, Industrial Area,
Delhi. ..........Managements.
AWARD
1.The Industrial Dispute between the managements of M/s Machino Touch Industries, A-114/2 Wazirpur, Industrial Area, Delhi ID NO. 845/2004/2000 2 and M/s Jain Metal, A-114/2 Wazirpur, Industrial Area, Delhi and its workman Sh. Pawan Kumar C/o Shram Sevi Janata Mazdoor Union, Shaheed Sukhdev Nagar, Near A-111/2, Wazirpur, Industrial Area, Delhi was referred by Secretary (Labour), Government of The National Capital Territory of Delhi for adjudication in exercise of powers conferred by section 10 (1) (c), 10 (1) (d) and 12 (5) of the Industrial Dispute Act 1947 (in short Act) vide his Order No. F.24 (3452)/2000 - Lab./140879 - 84, dated 12th December 2000 with the following terms of reference :
"Whether the services of Sh. Pawan Kumar have been terminated illegally and/or unjustifiably by the management and if so, to what relief is he entitled, and what directions are necessary in this respect? "
2. The notice of the reference was issued to the workman who filed statement of claim alleging in brief that he was working with the management as Mystri for the last seven years on the last drawn wages of Rs 2300/-- and was working with honesty and dedication and there was no cause of complaint against him during his service period .
ID NO. 845/2004/2000 3
3. The management did not provide him legal facilities like appointment letter, tennis card, bowlers, leave salary, minimum wages etc etc. Demand of these facilities management stalled it on one protects to the other and threatened the workman of termination of the services. On demand of the legal facilities the management terminated the services of the workman on 24/2/2000 without issuing any chargesheet, notice, without paying earned wages and other facilities. On 27/2/2000 the management for the workman for taking his dues. On 27/2/2000 when the workman went to the management at 7.30 p.m. the owner Shri Deepak and Shri Sanjay and Shri Rajinder and Shri Lallan Jha closed the gate and gave beatings to the workman and obtained his signatures on blank papers and vouchers and without making any payment made the workman run from the establishment.
4. The workman made a complaint through the union to the Labour Department on 28/2/2000 but despite the efforts of the Labour inspectors neither the workman was the wrong job nor his dues were paid. The workman has also made a complaint to the Police Post Wazirpur about giving beatings to him by management and about forcibly obtaining his ID NO. 845/2004/2000 4 signatures on blank papers etc on 27/2/2000. The workman also sent a demand noticed dated 24/4/2000 through union by registered AD and UPC but the management neither replied not complied it. Compiled by these facts the workman filed statement of claim before conciliation officer but due to nonappearance of the management the conciliation proceedings failed. Has the reference.
5. The workman is an umpire from the date of termination of his services and could not get a job despite his best efforts.
6. The workman has paid for reinstatement to the job will continue to service and for that wages by Europe award of this tribunal.
7. The management contested the claim and filed written statement. Admitting the relationship of workman employer with the parties. The case of the management is that the workman received his full and final payment on 27/2/2000 in the presence of his union leader namely Shri Lallan Jha and abandoned the employment/design from the services of the management. The management has denied that it has ID NO. 845/2004/2000 5 terminated the services of the workman as alleged by him. The management has denied the other facts stated in the statement of claim and has paid for its dismissal will necessary costs.
8. The controversies between the parties in the pleadings resulted in framing of the following issue by the tribunal on 19/4/2002: --
ISSUES
1. Whether the workman resigned himself from his services and if so what effect? OPM
2. Whether the workman has taken full and final dues from the management? OPM
3. As per terms of reference. OPW
9. In support of his case the workman filed his affidavit in evidence. Before he was cross-examined the management filed application for amendment of the written statement for incorporating the plea that it has closed the factory/establishments in 31/8/2003. The application was allowed by order dated 28/2000 2006 and the management filed amended written statement to which the rejoinder was filed by the workman. As a result of amendment of written statement ID NO. 845/2004/2000 6 following additional issue was framed on 28/2/2006 by this tribunal: --
10. ISSUE NO.1A Whether the management has closed the factory/establishments in 31/8/2003? OPM
11. After the framing of the additional issue the workman filed additional affidavit in evidence. He was cross-examined before another local commissioners appointed by this tribunal after which the workman closes evidence. The management also examined only one witness namely M. W.1 Shri Deepak Gupta and filed his affidavit in evidence. He was also cross-examined before learned the local commissioner after which the management also closed its evidence.
12. Both parties have filed written arguments and oral arguments are also addressed on their behalves.
13. I have gone through the written arguments filed on behalf of the parties, the record of the case and relevant provisions of law carefully. My findings on the issues framed are as under: -
ID NO. 845/2004/2000 7 14. ISSUE NO.S 1 AND 2 Both the issues are interconnected so are being decided together for the sake of convenience.
15. The management has relied upon the documents Ex WW1/M.8 and M.9 to show that is a more Rs 14,422/-- was paid by the management to the workman on 27/2/2000 and full and final amount.
The workman has admitted his signatures on both the documents and also his handwriting on Ex WW1/M.9. The case of the management is that full and final dues were paid to the workman and workman himself left the job while according to the workman he was forced to sign the documents by the management. The workman has alleged that his services were terminated by the management wrong 24/2/2000 and he was called on 27/2/2000 to receive his dues. On 27/2/2000 when the workman went to the management at 7.30 p.m. the owner Shri Deepak and Shri Sanjay and Shri Rajinder and Shri Lallan Jha closed the gate and gave beatings to the workman and obtained his signatures on blank papers and vouchers and without making any payment made the workman run from the establishment. Both parties have stuck to their ID NO. 845/2004/2000 8 respective case in the pleadings and evidence.
16. The learned authorised representative of the management has relied upon the authorities reported as State of Uttranchal Vs Jagpal Singh Tyagi LLR 2006 254 SC, M/s J.K. Cotton SPG. & WVG Mills Co. Ltd. Kanpur Vs State of U.P. & Others LAB. I.C. 1990 1511 SC, Maharashtra State Road Transport Corporation vs C.R. Shingote 2001 LLR 341 SC, Hira Mills, Ujjain Vs Babu and Two Others 1998 LLR 524 M.P., Laffans India Pvt. Ltd. VS Pancham Singh Rawat & Another 2003 LLR 147 Bomb.,K. Haridas L. Shenoy VS Johnson & Johnson Ltd. & Others 2005 LLR 291 Bomb., Ravindran T. Vs Presiding Officer Labour Court, Coimbatore and Another 2002 LLR 1108 MAD.
17. From the above authorities relied on behalf of the management it is clear that many workman tenders his resignation voluntarily and has accepted full and final dues from the management, on subsequent industrial dispute raised by him against the management, he's not ID NO. 845/2004/2000 9 entitled to any relief against the management. The central point in these authorities was that the workman in question was found to have voluntarily resigned from the job. Therefore, it is to be seen whether the workman in this case has voluntarily resigned from the job. If yes, on the basis of the above authorities relied on behalf of the management, he's not entitled to any relief against the management.
18. Both parties have stuck to the case in this regard in the pleadings and evidence. The signatures on the documents Ex WW1/M.8 and M.9 admitted by the workman in the cross-examination and in the pleadings as well. But his case is that he was forced to sign the documents by the management and was paid nothing. A workman who has amicably settled his disputes with the management by tendering resignation or by receiving full and final dues cannot be expected to make a complaint against the management of the same day to the police alleging that he was forced to sign documents. The fact that workman lodged complaint to the Police Post Wazirpur, Delhi copy of which is Ex WW1/ 1 on 27/2/2000 alleging that his services were terminated by the management on 24/2/2000 and he was called on ID NO. 845/2004/2000 10 27/2/2000 to receive his dues. Further alleging that on 27/2/2000 when the workman went to the management at 7.30 p.m. the owner Shri Deepak and Shri Sanjay and Shri Rajinder and Shri Lallan Jha closed the gate and gave beatings to the workman and obtained his signatures on blank papers and vouchers and without making any payment made the workman run from the establishment tilts the balance of the evidence in favour of the workman or at least brings the evidence of the parties on these two issues at par. The question is went to dues emerge from evidence of the parties which are equally possible and one of these views leans towards the case of workman and the other towards that of the management, which view is to be accepted.
19. In K. C. P. Employees' Association, Madras v. Management of K. C. P. Ltd. AIR 1978 SC 474, it was observed by the Apex Court:
"5. In Industrial Law, interpreted and applied in the perspective of Part IV of the Constitution, the benefit of reasonable doubt on law and facts, if there be such doubt, must go to the weaker section, labour. The Tribunal will dispose of the case making this compassionate approach but without over-stepping the proved facts, correct the balance-sheets and profit and loss accounts of the Central Workshop to the extent ID NO. 845/2004/2000 11 justified by the Act and the evidence and finish the lis within three months of receipt of this order. The appeals are dismissed. No costs."
20. In Workmen VS M/s Williamson Magor & Co. Ltd. and Anr - 1982 SCC (L&S) 42, the Apex Court observed:
"............When, however, the word 'victimisation' can be interpreted in two different ways, the interpretation which is in favour of the labour should be accepted as they are the poorer section of the people compared to the management.
13. This Court in the case of Employees' Association v. Management of K.C.P. Ltd., Madras observed: (SCC p. 44, para 5) In Industrial Law, interpreted and, applied in the perspective of Part IV of the Constitution, the benefit of reasonable doubt on law and facts, if there be such doubt, must go to the weaker section, labour. The Tribunal will dispose of the case making this compassionate approach but without overstepping the proved facts, . . .
14. We would therefore accept the interpretation of the word 'victimisation' in the normal meaning of being the victim of unfair and arbitrary action, and hold that there was victimisation of the superseded workmen."
21.In S.M. Nilajkar and Others v. Telecom Distt. Manager, Karnataka, (2003) 4 SCC 27; 2003 LLR 470 (SC), the Apex Court was of the ID NO. 845/2004/2000 12 opinion that the labour laws being beneficial pieces of legislation are to be interpreted in favour of beneficiaries, According to the Court, in case of doubt or where It is possible to take two views of a provision, the ben- efit must go to the labour.
22. In the light of the above the authorities it is clear that on the question whether the workman himself voluntarily resigned or received full and final dues from the management on 27/2/2000 or he was forced to sign documents and was paid nothing, the two views emerge, the view which is in favour of the workman is to be accepted. Therefore, in the given facts and circumstances of the case the case of the workman that he was forced to sign the documents regarding resignation/acceptance of full and final dues from the management and was paid nothing is to be accepted. This makes the authorities relied on behalf of the management of no help to the management.
23. In view of the above both Issue No.s 1 and 2 are decided in favour of the workman and against the management.
ID NO. 845/2004/2000 13
24. ISSUE NO1 A The management has amended the reinstatement and has taken the plea that it has closed down its business/manufacturing activities since 31/8/2003 irrevocably. The witness of management M. W.1 has proved the copy of the closure notice dated 31/7/2003 given two The Labour Commissioner, Delhi with one copy each toThe Regional Provident Fund Commissioner and to The Regional Director ESI C copy which is Ex M. W.1/16 and the copies of the postal receipts are Ex M. W.1/17 to Ex M. W.1/19. The workman in his cross-examination has admitted that it was correct that the management dues to do the work of sheets belai and this work was closed with effect from 31/8/2003 he voluntarily added that now the work of utensils has started.
25. The witness of management M. W.1 was recalled on the application of the workman for his further cross-examination on 15/12/2006 in which he admitted that it was correct that the directory of the Wazirpur Smart Industries Association for the year 2005 Ex M. W.1/W.2 contains the name of M./S. Vinayak International, telephone number and address at point A. he also stated in the cross-examination ID NO. 845/2004/2000 14 that in the directory for the year 2005 the nature of business/manufacturing off Vinayak International and his name had been printed wrongly. In his earlier cross-examination 11/8/2006 M. W.1 has stated that it was correct that his father is proprietor of Vinayak International. But M. W.1 in the further cross-examination on 15/12/2006 has also proved the letter dated 20/12/2005 Ex M. W.1/W.3 by which his father being proprietor of the said concern has written to the Association regarding the mistake a printing the name of the M. W.1 and has requested to rectify the same.
26. In view of the above, from overall evidence on this issue it emerges that the management of M./S. Machino Touch Industries has closed its operation completely with effect from 31/8/2003 and the other concern M./S. Vinayak International is functioning from the same address. There seems to be a printing errors in the directory of the said Association regarding publishing the name of the M. W.1 and his concern at the request was made by his father proprietor of the other concern the prod before for ratification of the error in the directory. The M. W.1 has also stated in the cross-examination on 15/12/2006 that ID NO. 845/2004/2000 15 M./S. Vinayak International was in existence since 2001, i.e., prior to closure of M./S. Makino Tech Industries. There are some other arguments raised on behalf of the workman regarding nonproduction of record by the management but in such matters there is no need for any fishing and roving inquiry when the workman himself in the cross- examination has admitted that the management has closed its work of sheets belai since 31/8/2003. There is also no evidence on record that the firm of father of M. W.1 has taken over the assets and missionaries of the management was earning the same business/manufacturing activity. The runner-up was representative of management has relied upon the two authorities mentioned in the written arguments that has not produce these authorities and instead has produced the copy of 3 Civil Ct. Manual Volume 28 which do not contain the facts. However, the point raised in the written arguments on bra for management is entitled to be accepted in the given facts and circumstances of the case.
27. Above the above I hold that the management has been able to prove that it has closed down its operation since 31/8/2003 permanently. The Issue No. 1A case, therefore, decided in favour of the management ID NO. 845/2004/2000 16 and against the workman.
28. ISSUE NO.3 Unnecessary controversies are raised by the parties with regard to date of appointment of the workman and leaving the job and his reappointment. What actually matters is whether the workman has completed one years continuous service or 240 days or more service preceding date of termination of his service to ascertain whether provisions of Section 25 F. of the Act are attracted or not.The termination of services of any workman by the management on any ground whatsoever other than a punitive action and the excluded categories (a) to (c) of S. 2(oo) of the Act amounts to retrenchment of the workman. If the workman had completed one year of the continuous service on the date of termination then the management is required to comply with the provisions of Section 25F of the Act by payment of the requisite retrenchment compensation and one months notice pay in lieu thereof etc prior to retrenchment of the workman. Section 25 B. So far is relevant defines one year's continuous service as 240 days service in an English calendar year. The burden to prove the fact that the workman had completed 240 days of service prior to ID NO. 845/2004/2000 17 his retrenchment lies on the workman.
29. In the present case it is not suited at the workman had completed more than one year or more than 240 days of service with the management as on 24/2/2000. The plea of the management that the workman himself left the job and received full and final dues on 27/2/2000 though not believed case implied admission of the management regarding noncompliance of the provisions of Section 25 F. of the Act. Therefore, the termination of the services of the workman by the management being in violation of the provisions of Section 25 F. of the Act, is illegal. The question now arises but relief to be granted to the workman against the management.
30. Recently in U.P. State Brass ware Corporation Ltd. and others Vs. Uday Narain Pandey (2006) 1 SCC 479 the Apex Court has made the following observations:
"Before adverting to the decision relied upon by the learned counsel for the parties, we may observe that although direction to pay full back wages on a ID NO. 845/2004/2000 18 declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realising that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and /or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched."
31. In Lords Homeopathic Laboratories private Ltd. Vs. Ms. Lissi Unnikunju and others 2006 IV AD (DELHI) 739 (DB) the Division Bench of our Hon'ble High Court made the following observations:
"In a large number of cases, this court has granted compensation instead of reinstatement vide Model School for Mentally Deficient Child Vs. Mukh Ram Prasad Maurya and others 109 (2004) DLT 292, Suraj Pal Singh And others Vs. P.O, Labour Court and another 2002 v. AD (Delhi) 706; Harsha Tractors Ltd. Vs. Secretary (Labour) and others 2001 III AD (Delhi) 746; Sh. Pal Singh Vs. National Thermal Power Corporation Ltd. 2002 111 AD (Delhi) 1059; Sain Steel Products Vs. Naipal Singh and others 2001 LLR 566; R. Mugum and others Vs. The P.O. Labour Court and another 2000 VI AD (Delhi) and State Bank of India Vs. J.R.Surma 2002 VII AD (Delhi) 325.
ID NO. 845/2004/2000 19 Whether compensation should be awarded for reinstatement is in the Tribunal's discretion vide United Commerce Bank Ltd. Vs. Secretary, U.P. Bank Employees Union and others AIR 1953 SC
437. Various factors have to be seen as to whether reinstatement or compensation should be granted vide The management of Bharat Kala Kendra Vs. R.K. Baveja, 1980 (40) FLR 244 (Delhi).
In Hindustan Steel Ltd. Vs. A.K. Roy, AIR 1970 SC 1401, the Supreme Court observed (vide paragraph
14): - "The Tribunal, however, has the discretion to award compensation instead of reinstatement if the circumstances of a particular case are unusual or exceptional."
This view was followed by a Division Bench of this Court in Jagat Singh Vs. Estate Officer 2002 V AD (Delhi) 713. The same view was taken in Rolston John Vs. CGIT 1995 Supp. (4) SCC 548; DTC Vs. Presiding Officer 2000 LLR 136; Nehru Yuva Kendra Vs. UOI 2000 IV AD (Delhi) 709; A.K. Chakraborty Vs. Saraswadpur Tea Company Ltd. (1982) 2 SCC 328 etc. In Employers, Management of Central P&D Inst. Ltd. Vs. UOI, AIR 2005 SC 633, the Supreme Court observed that it is not always mandatory to order reinstatement after holding the termination illegal and instead compensation can be granted. The same view was taken by a Division Bench of Delhi High Court in Pramod Kumar Vs. Presiding Officer, 123 (2005) DLT 509"
ID NO. 845/2004/2000 20
32. In the present case the management has already closed its operations since 31/8/2003. The findings on Issue No.1and2 returned in favour of the workman by taking one of the two possible equally good view. The services of the workman was terminated about seven years ago. On account of closure of establishment of the management the question of reinstatement to the job to the workman or continuity in service does not arise. Therefore, keeping in view overall facts and circumstances of the case and the above authorities the workman, in my view, is entitled to a lump-sum compensation in the sum of Rs 40,000/--
from the management. Out of this amount is the management shall be entitled to detect 50% of the free of the learned local commissioner that is a sum of Rs 350/-- and the workman shall be entitled to the balance amount of Rs 39,650/--. The Issue No.3is accordingly decided in favour of the workman against the management.
33. In the light of my findings on the issues the workman is entitled to a lump-sum compensation in the sum of the 39,650/was from the management in case the sad amount is not paid by the management within two months of publication of the award, the workman shall also be ID NO. 845/2004/2000 21 entitled to a simple interest at the rate of 9% per annum on this amount from the date of the so are the recovery of the said amount.The reference is answered accordingly. The copies of the award be sent to learned Secretary (Labour), Government of National Capital Territory of Delhi. The award be also sent to the server(www.delhicourts.nic.in).
The file be consigned to the record room.
ANNOUNCED IN THE OPEN COURT ON THIS 23RD DAY OF APRIL, 2007.
(S.K.SARVARIA) PRESIDING OFFICER LABOUR COURT NO.XII, KARKARDOOMA COURTS, DELHI.
ID NO. 845/2004/2000