Delhi District Court
Vide Order No. ... vs Union Of India & Ors. 2000 Iv Ad (Delhi) ... on 12 January, 2016
IN THE COURT OF SHRI UMED SINGH GREWAL
PO:LCXVII, ROOM NO. 22 : KKD COURTS :DELHI
ID No. 136/10/96
Unique ID No.02402C0002841996
M/s. Nirulas Corner House Ltd.
'L' Block, Connaught Place,
New Delhi1
............. Management
Versus
Sh. Jitender Kumar Pant
H.No. 26 A, Sector4, M.B. Road,
Pushp Vihar, New Delhi17.
Since deceased through :
1. Shalu W/o of Late Sh. Jitender Kumar,
R/o H. No. 393F, Pocket2, Near Mother Dairy,
Mayur Vihar, PhaseI, East Delhi110091.
2. Kumar Kartikey Pant S/o Late Sh. Jitender Kumar
R/o H. No. 393F, Pocket2, Near Mother Dairy,
Mayur Vihar, PhaseI, East Delhi110091.
..............Workman
DATE OF INSTITUTION : 10.09.1996
DATE ON WHICH AWARD RESERVED : 08.01.2016.
DATE ON WHICH AWARD PASSED : 12.01.2016.
A W A R D :
ID 136/10/96 1/29
1. Vide Order No. F.24(4437)/96/Lab./4277882 dated
03.09.1996, issued by Government of NCT of Delhi, a reference
was sent to this Court with the following terms:
"Whether the dismissal of Sh. Jitender Kumar
Pant from service is illegal and / or unjustified
and if so, to what relief is he entitled and what
directions are necessary in this respect?"
2. Claimant's case is that he joined the management as
Sales Assistant/ Cashier on 04.04.1989 and after successful
completion of probation period of six months, he was confirmed
in October, 1989. His service record was excellent and that is
why in April, 1991, he was promoted as General Assistant which
was equivalent to the post in TM2 Cadre but suddenly, the
management demoted him to the cadre of TM5 which was not
acceptable to him. In order to get the same rank, he wrote several
letters to the management. Aggrieved by his letters, the
management started levelling false accusations against him. A
chargesheet based upon false facts was supplied to him. He
visited the management on 19.09.1995 to submit reply to the
chargesheet when F & B Manager Sh. Subhash asked him to settle
the matter amicably and took original documents from him. When
ID 136/10/96 2/29
he visited the management next day, he found that his entry was
banned. He went to the management on 21.09.1995 during
working hours but he was stopped at the gate by the guard saying
that there were clear instructions from the management not to
allow him to enter the premises. A pamphlet was pasted on the
gate on which it was mentioned that he should not be allowed to
enter in any of the outlets of the management. Sh. Amit Bhasin
was appointed as enquiry officer without his consent. He did not
allow him to put appearance. He did not allow him to defend the
case. The enquiry officer proceeded exparte despite the fact no
notice of enquiry was sent to him. He sent a letter to the enquiry
officer on 30.11.1995 intimating that he had not received any
letter from him about the date, time and venue of the enquiry
proceedings and that he be given opportunity to present his case.
Thereafter, he received a letter dated 01.12.1995 alongwith two
cheques of Rs. 1412.80/ & Rs. 1184.95/.
3. Written statement is to the effect that the claimant
was working as Team Member5 and was last posted in pastry
shop. W.e.f. 27.08.1995, he was transferred to ice cream parlor
ID 136/10/96 3/29
from pastry shop as team member5. He had previously worked
in ice cream parlor. Without any justification, the claimant refused
to work in ice cream parlor and started absenting without
permission. Despite repeated reminders, he did not join his duty in
the ice cream parlor and continued to remain absent. The
management was left with no alternative but to issue him
chargesheet dated 13.09.1995 asking to showcause why
disciplinary action be not initiated against him. The claimant
furnished explanation saying that he be taken on duty at the same
place of posting at which he was working i.e. on the pastry shop.
His explanation was not found satisfactory and hence a domestic
enquiry was initiated. Sh. Amit Bhasin, was appointed as enquiry
officer and he conducted the enquiry as per the principles of
natural justice by providing full opportunity to the claimant to
defend the charges. The enquiry officer found him guilty. A copy
of enquiry report was sent to the claimant for his comment. He
was dismissed from service vide letter dated 26.02.1996. The
management denied that the claimant was ever promoted as
General Assistant in April, 1991. It is mentioned that he was
working as Team Member5 and hence was drawing the wages of
TM5. He never met any official of the management on
ID 136/10/96 4/29
19.09.1995. No pamphlet was pasted on the gate barring his
entry. The enquiry officer gave him full opportunity to cross
examine the witnesses produced by the management. He was also
asked to produce his evidence but he did not appear deliberately
before the enquiry officer.
4. Following issues were framed on 20.04.1998 :
1. Whether the enquiry was not conducted in
accordance with the principle of law?
2. As per terms of reference.
5. In order to prove enquiry invalid, the claimant
tendered his affidavit in evidence as Ex.WW1/A mentioning all
the facts stated in statement of claim. He deposed that he visited
the management on 19.09.1995 to submit reply to the chargesheet.
F & B Manager Sh. Subhash Sethi met him and asked to settle the
matter amicably and for that purpose, he was directed to bring the
original documents. Those documents were handed over to the
management on 20.09.1995. His entry was banned w.e.f.
21.09.1995. When he visited the management on that day, the
security guard did not allow him to enter the premises and showed
ID 136/10/96 5/29
him a pamphlet pasted on the notice board that his entry was
banned. He further deposed that the management deliberately
mentioned his designation as TM5 in all correspondence in order
to give impression that he was working as Team Member5
whereas he had already been promoted as General Assistant which
was equivalent to Team Member2 cadre. He further deposed that
his services were unauthorizedly and unceremoniously terminated
on 27.08.1995. About the enquiry proceedings, he deposed that
the Enquiry Officer was biased and that is why he proceeded ex
parte without informing him the date and venue of enquiry
proceedings. He had sent a letter dated 30.11.1995 to Enquiry
Officer to intimate that he be allowed to present his case but
instead, he received a letter dated 01.12.1995 alongwith cheques
of Rs. 1412/ and Rs. 1184/.
6. The management examined Enquiry Officer Sh. Amit
Bhasin as MW1, who tendered his affidavit in evidence as
Ex.MW1/A. He deposed that he conducted domestic enquiry in
accordance with the law and principles of natural justice. The
claimant was given several opportunities to participate in the
ID 136/10/96 6/29
enquiry by way of notices sent through registered post etc. He
deliberately failed to participate in the enquiry and hence he was
proceeded exparte. He further deposed that on the request of the
claimant, he had decided to hold enquiry de novo and allowed him
to participate as per letter dated 13.12.1995. The claimant again
failed to participate and in this way, enquiry was finally concluded
on 23.12.1995. He relied upon enquiry proceedings as Ex.MW1/1
(collectively) and enquiry report Ex.MW1/2 (collectively).
MW2 Sh. Anil Verma is manager of the management.
He deposed that contention of the claimant that his entry was
barred in the premises of M/s. Nirula Corner House Ltd. at L
Block, Connaught Place, New Delhi w.e.f. 21.09.1995 was false.
Mr. Grover and Mr. Madan had not written any letter/ chit to the
effect that claimant be not allowed to enter the premises. He was
suspended w.e.f. 06.10.1995. A suspended employee has no right
to report for duties and so, ban on his entry after suspension was
justified.
7. On merits (misconduct), wife of the claimant
examined herself as WW2. It is pertinent to mention that claimant
ID 136/10/96 7/29
has expired on 28.09.2014. She deposed that her husband was
appointed as Sales Assistant / Cashier with the management on
04.04.1989. His services were confirmed in October, 1991 after
completion of probation period of 6 months. After confirmation,
his salary was enhanced to Rs.1015/ from Rs.1014/ per month.
Due to his hard work, he got promotion as General Assistant in
April, 1991. The management used to pay her husband allowance
of Rs.79/ as he was working as Cashier. Nature of duty of
Cashier was onerous and that is why he had executed a surety
bond in favour of the management. The management demoted
him to the cadre of Team Member 5 (TM- 5) which was never
accepted by him as it was illegal, arbitrary and unjustified. Due to
that reason he had written several letters to various authorities
which the management never liked and hence started levelling
false acquisitions against him. Due to that sole reason, he was
chargesheeted on 13.09.1995 on false, frivolous and baseless
allegations. She further deposed that her husband had gone to the
office of the management on 19.09.1995 to submit reply to the
chargesheet when F & B Manager Mr. Subhash Sethi met him and
asked for amicable settlement and advised to visit again with
original documents. Her husband again went to the office of the
ID 136/10/96 8/29
management on 20.09.1995 with the original documents which
were kept by Mr. Sethi. His entry was baned in the premises
w.e.f. 21.09.1995. He had never absented himself and rather, the
management did not allow him to do the duty w.e.f. 22.09.1995.
When he reached to the office of the management on 21.09.1995,
the guard did not allow him entry saying that there was clear
instruction from the management not to enter the premises and
pointed out towards a pamphlet pasted at the gate in which it was
mentioned that he was not allowed to enter in premises without
permission of the officers of the management.
Coworker Mr. Krishan Singh came to the support of
the claimant deposing that he had worked as a Counterboy with
the management since March, 1989. His services were terminated
unceremoniously in the year 1997. The claimant was working in
the same organization and was last posted as General Assistant
equivalent to TM2. He further deposed that claimant's entry was
banned in the hotel premises though he was willing to work and
for that purpose, he was visiting the hotel regularly. At one
occasion, he was stopped by security supervisor Mr. R.B. Yadav
at the gate in his presence.
ID 136/10/96 9/29
8. On merits, the management examined its Vice -
President Ms. Nitasha Mehta as MW3. She deposed that she was
working as VicePresident with the management since 07.06.10
and was looking after the work of HR, Training, Marketing and
Operation in that capacity. She had discussed all pending cases
with HR / Legal Department when she joined the management and
due to that reason and also on the basis of record, she was
conversant with the facts of the case. She deposed that Mr. R.
Barua was working in the HR Department of the management and
during discussion, Mr. Barua told her that the claimant was
transferred from pastry shop to icecream Parlour vide transfer
order dated 25.08.1995, but the claimant had refused to take copy
of transfer order. She further deposed that claimant was appointed
as Sales Assistant w.e.f. 07.04.1989 and as per clause 6 of the
appointment letter, his job was transferable from one section /
department to another, from one shift to another, from one
department / branch / unit to another. A decision was taken by the
management to introduce the concept of team member in the
organization to streamline the organizational structure. In this
background, the workman was redesignated as Team Member5
(TM5) vide letter dated 10.09.1993. His designation was
ID 136/10/96 10/29
equivalent to TM5 in the Pastry Shop. Services of the claimant
were transferred from Pastry Shop to Icecream Parlour vide
transfer letter dated 25.08.1996. That letter was tendered to the
claimant by Mr. R. Barua by hand on 26.08.1995 in the office but
the intention of the claimant was mischievous and hence refused
to accept the letter. That fact was told to her by Mr. R. Barua who
has retired w.e.f. 01.10.11. Before it, when the claimant had
refused to take delivery of the notice on 26.08.1995, Mr. R. Barua
had made endorsement on the letter and she identified signatures
of Mr. R. Barua on the letter. After refusal, an interdepartmental
memo dated 25.08.1995 was sent by Sh. Subhash Sethi, F & B
Manager to the Personnel Department informing about the transfer
of the workman from Pastry Shop to Ice Cream Parlour w.e.f.
27.08.1995, but claimant started absenting from duty w.e.f.
27.08.1995. She relied upon the following documents :
I. Ex. MW3/1 appointment letter dated 07.04.1989 of the
claimant.
II. Ex. MW3/2 letter dated 10.09.1993 vide which the
claimant was redesignated as TM5.
III. Ex. MW3/3 is transfer letter dated 25.08.1995.
IV. Ex. MW3/4 is letter dated 25.08.1995 vide which the
Personnel Department was intimated by F& BT
Department about transfer of the claimant to icecream
ID 136/10/96 11/29
parlour.
V. Ex. MW3/5 is chargesheet dated 13.09.1995.
VI. Ex. MW3/6 is transfer letter dated 09.09.1993 vide
which the claimant was transferred to staff canteen
from icecreme parlour.
VII. Ex. MW3/7 is dismissal letter dated 26.02.1996.
VIII.Mark M1 is reply of the claimant to the chargesheet.
X. Mark M2 is copy of attendance register of the claimant
for the months of Aug., Sept. and Oct., 1995.
Due to absence, he was issued a chargesheet dated
13.09.1995, to which he had filed reply on 19.09.1995. The reply
was unsatisfactory as the claimant had demanded that he should
be taken on duty at the same place of posting at which he was
earlier working i.e. at the Pastry Shop. She further deposed that in
the past also i.e. in the year 1993, the claimant was transferred
from Staff Canteen to Icecream Parlour vide letter dated
09.09.1993. Claimant's defence that he was not allowed duty
w.e.f. 27.08.1995 is afterthought. He was held guilty by the
Enquiry Officer and hence his services were terminated vide letter
dated 26.02.1996.
MW4 Mr. Rakesh Aneja is working with the
management since 30.12.1979 in the Finance Department and
hence is familiar with the facts of the case. He deposed about the
ID 136/10/96 12/29
first transfer of the claimant to Icecream Parlour in 1993 vide
letter dated 09.09.1993. Thereafter, he was transferred from Pastry
Shop to Icecream Parlour w.e.f. 27.08.1995 vide letter dated
25.08.1995. He further deposed that nature of duty in Staff
Canteen and Pastry Shop was that of Sales Assistant. Nature of
duty of Icecream Parlour was not inferior to the work which the
claimant was performing in the Staff Canteen and Pastry Shop.
Despite transfer, the claimant did not join and remained
unauthorizedly absent.
Issue No. 1.
9. This issue has already been decided in favour of the
management and against the claimant by this Court vide order
dated 14.09.15 holding that there was no violation of principles of
natural justice by Enquiry Officer and that enquiry report was not
perverse.
Issue No. 2.
10. Ld. ARM argued that claimant was transferred from
Pastry Shop to Icecream Parlour vide transfer order Ex. MW3/3
ID 136/10/96 13/29
dated 25.08.1995 effective from 27.08.1995. But the claimant did
not obey the transfer order and hence did not join the Icecream
Parlour due to which he was chargesheeted vide chargesheet Ex.
MW3/5 dated 13.09.1995. She further submitted that absence of
the claimant has been proved by attendance register Mark M2 for
the months of August, September and October, 1995.
11. Perusal of the attendance register Mark M2 for the
month of August, 1995 shows that claimant had done duty only
upto 26.08.1995. Attendance columns for the remaining days of
August, 1995, for all 30 days of September, 1995 are blank. First
five columns of October, 1995 are also vacant. He was suspended
w.e.f. 06.10.1995. Perusal of appointment letter Ex. MW3/1
shows that as per clause No. 6, the job of the was transferable
from one section / department to another from one shop to another
and from one establishment / branch / unit to another on a
temporary or permanent basis in India. The earlier transfer order
Ex. MW3/6 dated 09.09.1993 shows that he was transferred to
Icecream Parlour. So, the claimant had experience to work in
Icecream Parlour. Second transfer letter Ex. MW3/3 dated
ID 136/10/96 14/29
25.08.1995 shows that his services were transferred from Pastry
Shop to Icecream Parlour w.e.f. 27.08.1995 and intimation
thereof was sent to Personnel Department by F & B Manager vide
communication letter Ex. MW3/4 dated 25.08.1995. Evidence of
witness produced by claimant either before decision on enquiry
issue or subsequent, shows that his case is not that he had done
duty with the management after 26.08.1995. So, claimant's case is
also to the effect that he was absent since 27.08.1995.
12. Ld. ARW justified the absence of the claimant w.e.f.
27.08.1995 on three grounds. The first one is that the transfer
letter which was never communicated to the claimant. The second
is that the claimant's entry was banned in the premises of the
management and hence he could not perform duty. The third
ground is that the claimant was justified in not doing duty because
he was demoted by the management.
13. On first ground, MW3 Ms. Nitasha Mehta deposed in
her affidavit in evidence Ex. MW3/A that an official namely, Mr.
R. Barua of the management was conversant with the facts of the
ID 136/10/96 15/29
case. She had joined the management on 07.06.10 and Mr. R.
Barua retired on 01.10.11. During discussion, Mr. R. Barua had
told her that he had tried to deliver transfer letter Ex. MW3/3 to
the claimant but he refused. On 26.08.1995, he made
endorsement on transfer letter itself. She identified the signatures
and handwriting of Mr. R. Barua on transfer letter. In this way,
the management has proved that claimant had refused to take
delivery of the transfer letter Ex. MW3/3. Argument of ld. ARW
on this point has been cut to size by his own suggestion put to
MW3. A suggestion was given to her that transfer letter dated
25.08.1995 Ex. MW3/3 was served upon the claimant and she
admitted the suggestion as correct. It means that the case of the
claimant is also to the effect that he had come to know of the
contents of transfer letter dated 25.08.1995. The claimant had
sent representation Ex. MW2/3 dated 01.09.1995 to the Personnel
Manager of the management. It is mentioned on the top of the
document that representation was for illegal expulsion from duty
without prior notice. It is mentioned on the last page i.e. page No.
3 of Ex. WW2/3 that he had never denied for duties in the same
post and for that purpose, he was visiting the duty place daily.
That representation shows that something wrong had taken place
ID 136/10/96 16/29
with him since 27.08.1995. The last page of the representation
shows that the claimant was ready to join on the same post.
Earlier contents of that representation show that the claimant was
aggrieved due to his demotion done on 27.08.1995 itself. So, he
was ready to join the duty on the same post which he was holding
before demotion. All these documents prove that transfer letter
Ex. MW3/3 was within the knowledge of the claimant.
14. On the second ground, ld. ARW argued that entry of
the claimant was banned in the premises of the management and
that is why he could not mark his attendance. On the other hand,
it has been argued by ld. ARM that claimant has failed to prove
that his entry was barred.
The first correspondence done by the claimant with
the management after 27.08.1995 is Ex. WW2/3 dated
01.09.1995. In that correspondence, he mentioned four reasons of
his dissatisfaction with the management. The first reason is that
there was variation in his pay. The second one is of frequent
transfer. Third one is demotion to lower post. Fourth and last one
is refusal by management for attendance and duty. It is pertinent
ID 136/10/96 17/29
to mention that letter Ex. WW2/3 was written by the claimant to
management in response to transfer order dated 25.08.1995. If the
management had banned his entry or was not allowing him to
mark his attendance, he should have mentioned that fact as the
ground No.1 for his dissatisfaction with the management. Instead
of doing so, he mentioned that ground in the last. It shows that the
main reasons of dissatisfaction with the management were
variation in pay, frequent transfer and demotion. As per his
evidence and document, he was refused duty by F & B Manager
Mr. Subhash Sethi. The claimant had filed statement of claim Ex.
WW1/M1 before Conciliation Officer on 06.10.1995. It is
mentioned in para No. 5 of Ex. WW1/M1 that F & B Manager Mr.
Subhash Sethi had demoted him orally on 27.08.1995 and when
he asked the reason, he refused him to punch the card for
attendance. It is further mentioned that thereafter, he was visiting
the management regularly, but he was not allowed to mark
presence. Such assertions show that his entry was not barred in
the premises of the management. It is mentioned in para No. 9 of
Ex. WW2/M1 that he had visited the management on 19.09.1995.
On that day, he was asked by Mr. Subhash Sethi to submit his
documents so that he may discuss his case with seniors and
ID 136/10/96 18/29
colleagues within 3 - 4 days after 19.09.1995. It proves that his
entry was not banned before 19.09.1995. He did not furnish
explanation why he did not do any duty before his entry was
banned. Mr. Subhash Sethi had demoted the claimant and had
also issued transfer letter. Despite it, why did he believe him by
submitting original documents with him? The claimant did not
furnish any explanation. Moreover, there are some purchase
receipts Ex. WW2/7 collectively. These have been relied upon by
the claimant and his AR argued that his client had visited the
management several times for duty, but the management did not
allow him to mark presence. Such plea is contradictory to the plea
of banning of entry. These receipts are dated 04.09.95,
21.09.1995, 25.09.1995, 26.09.1995, 27.09.1995, 29.09.1995,
30.09.1995, 05.10.1995 and 10.10.1995. If these receipts are
acted upon in favour of the claimant, these prove that the
claimant's entry was not banned in the premises of the
management till 10.10.1995. So, this ground also fails.
15. The third ground is of demotion. Ld. ARW argued
that claimant was initially appointed as Sales Assistant and he was
ID 136/10/96 19/29
promoted as General Assistant in the year 1991. Mr. Subhash
Sethi, F & B Manager demoted him as TM5 and due to that
reason there arose dispute between the claimant and the
management. He further submitted that designation of TM2 is
equivalent to General Assistant and designation of TM5 is
equivalent to Sales Assistant.
It is mentioned in letter Ex. MW3/2 dated 10.09.1993
that with a view to streamline the organizational structure based
upon skill proficiencies, it had been decided to introduce the Team
Member concept w.e.f. 10.09.1993. Accordingly, the claimant
was being redesignated as Team Member5 (TM5). That letter
proves to the hilt that claimant was redesignated as TM5 in the
year 1993 and not in 1995. That fact was admitted by the
claimant in statement of claim Ex. WW1/M1 also filed before
Conciliation Officer. It is mentioned in para No. 4(d) of Ex.
WW2/M1 that the management had suddenly demoted him as
TM5 without any reason in October, 1993. These documents
prove that redesignation of the claimant was on 10.09.1993 and
not on 25.08.1995. All the correspondences like Ex. WW2/3, Ex.
WW2/4 and Ex. WW2/5 made by him with the management about
demotion on 27.08.1995 are absolutely false. The proper time for
ID 136/10/96 20/29
the claimant to agitate against redesignation was in September,
1993. He had no occasion to agitate after transfer order on
25.08.1995. So, the claimant has failed to justify any reason for
nonjoining the management at the transferred place.
16. In view of above discussion, the management has
successfully proved misconduct against the claimant.
17. MW3 was asked in cross examination whether there
was any other incident of absence against the claimant and she
replied that she cannot say whether the claimant ever absented
from duty prior to 1993 as she had to check up the documents.
Thereafter, the management did not place on record any paper
showing any incident of absence of the claimant. MW3 did not
give any satisfactory reply whether claimant was promoted or not.
MW4 deposed that he was not sure, but possibly the claimant was
promoted once. On previous absence, MW4 deposed that he
cannot say whether the claimant absented from duty prior to
25.08.1995. From such kind of evidence, it transpires that there is
only one incident of claimant's absence from duty. For one
ID 136/10/96 21/29
solitary incident, termination of services is the excessive
punishment disproportionate to the misconduct proved against
him. So, it is held that termination of services of claimant is not
illegal, but it is unjustifiable.
18. It is settled law that even in case of illegal termination
reinstatement is not automatic. In Nehru Yuva Kendra
Sangathan Vs. Union of India & Ors. 2000 IV AD (Delhi) 709,
Hon'ble Delhi High Court dealt with the question of reinstatement
and back wages and observed in paragraphs 27 and 28 as under :
"27. We find from the decision of the
Supreme Court rendered in the 1970s and
1980s that reinstatement with back wages
was the norm in cases where the
termination of the services of the workman
was held inoperative. The decisions
rendered in the 1990s, including the
decision of the Constitution Bench in the
Punjab Land Development and
Reclamation Corporation Ltd., Chandigarh
seem to suggest that compensation in lieu
of reinstatement and back wages is now the
norm. In any case, since we are bound to
follow the decision of the Constitution
Bench, we, therefore, conclude that
ID 136/10/96 22/29
reinstatement is not the inevitable
consequence of quashing an order of
termination; compensation can be awarded
in lieu of reinstatement and back wages.
28. Considering the facts of this case, we
are persuaded to award compensation in
lieu of reinstatement and back wages to the
workman"
19. In Municipal Council, Sujanpur Vs. Surinder
Kumar 2006 LLR 662, Hon'ble Supreme Court observed that the
relief of reinstatement is not automatic but is in the discretion of
the court. In paragraph 16, it was observed as under :
"Apart from the aforementioned error of
law, in our considered opinion, the Labour
Court and consequently the High Court
completely misdirected themselves insofar
as they failed to take into consideration
that relief to be granted in terms of section
11A of the said Act being discretionary in
nature, a Labour Court was required to
consider the facts of each case therefor.
Only because relief by way of reinstatement
with full back wages would be lawful, it
would not mean that the same would be
granted automatically".
ID 136/10/96 23/29
20. In Vinod Kumar & others vs Salwan Public School
& others WP(c)5820/2011 dt.17.11.2014 Hon,ble Justice V.
Kameshwar Rao has held as under:
11.Having considered the rival submissions
of the counsels for the parties, I do not find
any infirmity in the order of the Labour
Court. It is a settled position of law that
even if termination has been held to be
illegal, reinstatement with full back wages
is not to be granted automatically. The
Labour Court is within its right to mould
the relief by granting a lumpsum
compensation. In fact, I note that the
Labour Court has relied upon three
judgments propounding the law that the
Labour Court can mould a relief by
granting lump sum compensation; the
Labour Court is entitled to grant relief
having regard to facts and circumstances of
each case.
12. Further, the Supreme Court in the
following judgments held as under:
(a) In the matter reported as Jaipur
Development Authority v. Ramsahai,
(2006) 11 SCC 684, the court has stated:
"However, even assuming that there had
been a violation of Sections 25G and 25H
of the Act, but, the same by itself, in our
ID 136/10/96 24/29
opinion, would not mean that the Labour
Court should have passed an award of
reinstatement with entire back wages. This
Court time and again has held that the
jurisdiction under Section 11A must be
exercised judiciously. The workman must be
employed by State within the meaning of
Article 12 of the Constitution of India,
having regard to the doctrine of public
employment. It is also required to recruit
employees in terms of the provisions of the
rules for recruitment framed by it. The
respondent had not regularly served the
appellant. The job was not of perennial nature. There was nothing to show that he, when his services were terminated any person who was junior to him in the same category, had been retained. His services were dispensed with as early as in 1987. It would not be proper to direct his reinstatement with back wages. We, therefore, are of the opinion that interest of justice would be subserved if instead and in place of reinstatement of his services, a sum of Rs 75,000 is awarded to the respondent by way of compensation as has been done by this Court in a number of its judgments."
(b) In the matter reported as Nagar Mahapalika v. State of U.P., (2006) 5 SCC 127, the court has stated:
ID 136/10/96 25/29"23. Noncompliance with the provisions of Section 6N of the U.P. Industrial Disputes Act, although, may lead to the grant of a relief of reinstatement with full back wages and continuity of service in favour of the retrenched workmen, the same would not mean that such a relief is to be granted automatically or as a matter of course. 25 .....The appellant herein has clearly stated that the appointments of the respondents have been made in violation of the provisions of the Adhiniyam. An appointment made in violation of the provisions of the Adhiniyam is void. The same, however, although would not mean that the provisions of the Industrial Disputes Act are not required to be taken into consideration for the purpose of determination of the question as to whether the termination of workmen from services is legal or not but the same should have to be considered to be an important factor in the matter of grant of relief. The Municipal Corporation deals with public money. Appointments of the respondents were made for carrying out the work of assessment. Such assessments are done periodically. Their services, thus, should not have been directed to be continued despite the requirements therefor having come to an end. It, therefore, in our ID 136/10/96 26/29 considered view, is not a case where the relief of reinstatement should have been granted."
(c) In the matter reported as Talwara Coop. Credit and Service Society Ltd. v. Sushil Kumar, (2008) 9 SCC 486, the court has stated:
"8. Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section 11A of the Industrial Disputes Act, 1947 are required to strike a balance in a situation of this nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment viz. whether the appointment had been made in accordance with the statutory rules so far as a public sector undertaking is concerned, etc., should be taken into consideration."
(d) In the matter reported as Jagbir Singh v. Haryana State Agriculture Mktg. Board, (2009) 15 SCC 327, the court has stated :
"7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a ID 136/10/96 27/29 shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. ...
14. An order of retrenchment passed in violation of Section 25F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee."
21. Relief of reinstatement is impossible because the claimant has died on 28.09.14. His salary in April, 1992 was about Rs.1500/ per month. He had joined the management on 04.04.1989 and his services were confirmed in October, 1989 after successful completion of probation period of six months. His services were terminated on 26.02.1996. It means that he had worked with the management for about 7 years. Taking into account all these facts, a lumpsum compensation of Rs.2,00,000/ ID 136/10/96 28/29 (Rupees Two Lacs Only) is granted to the LRs of deceased workman. The management is directed to pay the said amount to them within a month from the date of publication of this award failing which it shall be liable to pay interest @ 9 per cent per annum from today till realization. Reference is answered accordingly. Award is passed accordingly.
22. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication. File be consigned to Record Room.
Announced in the open (UMED SINGH GREWAL) court on 12.01.2016 POLCXVII/KKD COURTS ID 136/10/96 29/29