Delhi District Court
{The Requisite Details Of The vs Laljeet Yadav & Ors on 24 May, 2023
Page 1 of 46
IN THE COURT OF MS. NAVITA KUMARI BAGHA, PRESIDING OFFICER,
LABOUR COURT07, ROUSE AVENUE DISTRICT COURT, NEW DELHI
LIR No.6279/2016
CNR No. DLCT130062652015
Vinod Singh
S/o Sh. Bhagwan Singh
R/o A159, Vijay Nagar, Phase1,
Rohini, New Delhi
Through :
Indian Steel & Metal Workers' Union (Regd.)
1800/9, Govind Puri Extension, Main Road Kalkaji,
New Delhi110019
{The requisite details of the Workman in compliance to judgment of
Hon'ble High Court of Delhi titled as "Director General of Works
(CPWD) Vs. Laljeet Yadav & Ors., W.P.(C) No.2540/2021, DOD
16.07.2021" are as follows:
Permanent Address of the Workman:
Village Minda Nivoda Khand Nadiya Bujur,
Distt. Kanpur, Uttar Pradesh209210
Present Address of the Workman:
D59, Phase1, Near Shaheed Bhagat Singh Chowk,
Vijay Vihar, Delhi110085
Mobile Number of the Workman:
8800917855
Name and Mobile Number of the AR of the Workman:
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Vinod Singh Vs. M/s. Prashad Computers World
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Sh. Shashwat Singh Gaur
Mob. No. 9810300323
Details of one of immediate family member of the Workman:
Smt. Poonam (Wife)
Mob. No. 9716627965
AADHAR Card Number of the Workman:
9286 2984 7458}
............ Workman
Vs.
M/s. Prashad Computers World
312, Shakuntla Building,
59, Nehru Place, New Delhi110019
....... Management
Date of receiving of Reference : 07.08.2015
Date of passing Award : 24.05.2023
AWARD
1. Vide Reference No.F24(542)/Lab./SD/2015/19115 dated 05.08.2015,
the following Reference from Deputy Labour Commissioner was
received on 07.08.2015 for adjudication, sent by him U/Sec.10(1)(c)
and 12(5) of Industrial Disputes Act, 1947 with Govt. of NCT of Delhi,
Labour Department Notification No. F.1/31/61/616/Estt./2008/7458
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dated 03.03.2009 in respect of industrial dispute between the
Workman namely Vinod Singh and Management i.e. M/s. Prashad
Computers World :
"Whether the services of Sh. Vinod Singh S/o Sh.
Bhagwan Singh 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. Notice of aforesaid Reference was issued to the Workman and after
service of notice, Statement of Claim was filed by him on 28.03.2017.
The brief facts as stated in his Statement of Claim are as follows :
1. That the Workman had been working with the
Management on the post of Sales Man w.e.f.
01.03.2013 and his last drawn wages were Rs.10,000/
per month.
2. That the Workman had never given any chance of
complaint to the Management as his services were
satisfactory to the Management.
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3. That the principal nature of the Workman's duties
was clerical, technical and manual i.e. to maintain
record of operation, coordination between various
branches of operation and submission of periodical
reports, etc. to the Management company from time
to time and that he never had any supervisory and
managerial role to play in any manner.
4. That the Management had not provided him the legal
facilities viz. appointment letter, salary slip, leave
book, attendance card, identity card, weekly &
festival holidays, bonus, pay as per the post,
overtime, conveyance allowance, ESI, PF, etc. and
when he raised demand for said facilities, the
Management got annoyed at him and ultimately
terminated his services illegally on 20.11.2014
without giving him any notice and without
conducting any domestic enquiry against him and
without paying his earned wages w.e.f. 01.06.2014 to
19.11.2014 and violated the provision of Sec.25F of
Industrial Disputes Act, 1947.
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5. That at the time of terminating his services, his
juniors namely Dhananjay and Manoj were retained in
their respective posts by the Management and thus,
the Management violated the principle of "last come
first go". That there is malafide intention on the part
of Management to engage fresh hands in place of
Workman.
6. That the termination of services of the Workman is in
violation of Sections 25F, G, H and N of Industrial
Disputes Act, 1947.
7. That he sent through Labour Union a Demand Notice
dated 05.12.2014 to the Management but despite
service of said notice, neither any reply was sent by
the Management nor he was reinstated nor his dues
were paid.
8. That the Management's official had threatened,
abused and manhandled the Workman and police
complaints were made to this effect by him.
9. That thereafter he filed a written complaint through
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Labour Union before the Deputy Labour
Commissioner, pursuant to which the Labour
Inspector requested the Management to reinstate the
Workman, but the Management did not take back him
on duty and also refused to pay the amount due to
him.
10. That thereafter he filed his Statement of Claim on
15.12.2014 before the Deputy Labour Commissioner,
but the Management did not cooperate and did not
take him back on duty.
11. That the Workman had been unemployed since the
day of illegal termination of his services and could
not secure any alternative employment despite best
efforts made by him.
3. Notice of aforesaid Statement of Claim was issued to the
Management and after service of notice, Written Statement was filed
by the Management on 12.10.2017, wherein it was submitted by the
Management that the Management used to avail the services of the
Workman as and when required and pay for the same then and there
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and thus, he was not having any permanent or temporary
engagement with the Management. It was further submitted that the
Workman had settled disputes with the Management and received
Rs.10,000/ towards full and final settlement on 10.01.2015 and thus,
nothing was due and payable by the Management to him. It was
further submitted that the Labour Inspector Manish Mahajan had
visited the office of the Management on 10.01.2015 and the
Management had briefed him the actual fact, but in order to get out of
the unpleasant situation created by the Workman, the Management
agreed to pay Rs.10,000/ to him as full and final settlement. It was
further submitted that it was incorrect that the Management had
retained Dhanjay and Manoj in place of Workman. It was submitted
that both of them were working independently with the Management
and they had nothing to do with the Workman.
4. Rejoinder to Written Statement was filed by the Workman on
12.03.2018 wherein he denied the contents of the Written Statement
and reiterated and reaffirmed the contents of his Statement of Claim
as true and correct.
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5. After completion of pleadings, the following issues were framed by
the Ld. Predecessor Court vide order dated 12.03.2018:
1. Whether the services of Sh. Vinod Singh S/o Sh. Bhagwan Singh
have been terminated illegally and/or unjustifiably by the
management; and if so, to what relief is he entitled? OPW
2. Relief.
6. In order to prove his case, the Workman has examined only one
witness i.e. himself as WW1. He, in his affidavit of evidence i.e.
Ex.WW1/A, has reiterated and reaffirmed the contents of his
Statement of Claim. While reiterating the averments made in his
Statement of Claim, he, in order to prove his case, has exhibited the
following documents:
(i) Ex.WW1/1 Office copy of Legal Demand Notice dated
05.12.2014, sent by Workman to the Management, along with
Postal Receipt.
(ii) Ex.WW1/2 - Complaint dated 08.12.2014 addressed to
Assistant Labour Commissioner.
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(iii) Ex.WW1/3 - Statement of Claim filed before the Conciliation
Officer.
(iv) Ex.WW1/4 - Report dated 29.01.2015 of Labour Inspector.
(v) Ex.WW1/5 - Office copy of Police Complaint dated 23.05.2015
along with Postal Receipts.
(vi) Ex.WW1/6 - Office copy of Complaint addressed to Human
Right Commission along with Postal Receipt.
(vii) Ex.WW1/7 - Office copy of Demand Notice dated 05.12.2014
sent to Management through Trade Union along with Postal
Receipt.
7. During the crossexamination conducted by the AR of Management,
the Workman/WW1 deposed that he had joined the Management in
the year 2013 at Bajaj House. He denied the suggestion that the
Management was never having any office at Bajaj House. He
deposed that he did not know if the Management was having any
office at 34, Deepak Building, Nehru Place. He deposed that as per
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his knowledge, the Management was functioning from Bajaj House
when he joined the Management and thereafter shifted to Shakuntala
House. He further deposed that he had joined the job with
Management in the year 2013. He denied the suggestion that he had
joined the Management on 07.04.2014 or that he himself had
abandoned the job on 10.07.2014. He deposed that in the course of
his job profile, he also used to collect the cheques from the clients of
the Management. However, he denied the suggestion that he had left
the job on account of his inability to collect payments regarding the
orders raised by him on behalf of the Management. He further
deposed that after his services were terminated by the Management,
he had visited the Management, but instead of taking note of his
request, the Management tried to put pressure upon him to collect the
payments with respect to the orders raised. He deposed that he had
never taken any advance cash payment during his tenure with the
Management. He denied the suggestion that he was habitual to take
advance against his salary and that his salary was used to be
adjusted against the said advance. He deposed that he had tried
many a times to obtain alternate employment after termination of his
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services but he could not succeed. However, he deposed that he was
not having any documentary proof in this regard. He deposed that he
did not remember as to whether the Management had obtained his
signatures on blank documents at any point of time or not. He
deposed that he had not lodged any police complaint in this respect.
He further deposed that he was not remembering the date on which
he had protested against the nonproviding of various facilities under
the various Labour Laws. He admitted it as correct that on
10.01.2015, in the presence of Labour Inspector, he was made a
payment of Rs.10,000/ by the Management. However, he denied the
suggestion that he had put his signatures on a document stating that
he had settled his account with the Management. He also denied the
suggestion that in his complaint addressed to various authorities he
had admitted of having settled his accounts with the Management. He
denied the suggestion that his services were never terminated by the
Management. He also denied the suggestion that he never paid any
visit to the Management after his alleged termination. He also denied
the suggestion that Praveen Jain had never refused to provide him
any duty.
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8. In Management's evidence, the Management has examined four
witnesses i.e. MW1 Praveen Jain, MW2 Dhananjay, MW3
Niranjan and MW4 Manish Mahajan.
9. MW1 had filed his affidavit of evidence on 03.09.2019, but the AR of
Workman had raised objection before the Court on 17.10.2019 by
stating that Paragraphs No.2, 3, 4 and 6 of the affidavit of evidence of
MW1 were beyond pleadings and therefore, the said affidavit was
discarded by the Ld. Predecessor Court vide order dated 17.10.2019
and the Management was directed to file fresh affidavit of evidence.
Accordingly, fresh affidavit of evidence was filed by MW1 on
07.11.2019. When the said affidavit was tendered by MW1 on
17.03.2020, objection was again raised by the AR of Workman that
Paragraphs No.5, 6, 7, 10, 12 to 15 of the said affidavit of evidence
were beyond pleadings.
10. MW1 Praveen Jain, in his affidavit of evidence i.e. Ex.MW1/A,
deposed that he was the Proprietor of Management/Respondent. He
further deposed that it was incorrect that the Workman had been working with the Management w.e.f. 01.03.2013. He deposed that the LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 13 of 46 Workman had joined the Management on 07.04.2014 and lastly worked on 10.07.2014 and thus, he worked for only 69 days. He deposed that the Workman had himself left the job on 10.07.2014 and therefore, allegation of termination of his service on 20.11.2014 was totally false. He further deposed that the Labour Inspector namely Manish Mahajan had visited the office of Management on 10.01.2015 and in order to get out of unpleasant situation created by the Workman, the Management had agreed to pay Rs.10,000/ as full and final settlement to him which he had received on 10.01.2015 in the presence of Labour Inspector. He further deposed that the employees namely Dhananjay and Manoj had been working continuously with the Management from the year 2009. The MW1 exhibited/marked the following documents:
(i) Ex.MW1/1 Attendance Register of employees of Management.
(ii) Mark A - Photocopy of Rent Agreement dated 02.09.2009.
(iii) Mark A - Photocopy of Rent Agreement dated 09.01.2014. LIR No.6279/2016
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(iv) Ex.MW1/2 (colly) - Computer Generated copy of Ledger.
(v) Ex.WW1/3 - Certificate U/Sec.65B of Evidence Act.
(vi) Ex.MW1/4 - Receipt of Full & Final Payment.
11. During the crossexamination of MW1 by the AR of Workman, he admitted that the address of Management appearing on the Demand Notice i.e. Ex.WW1/1 was the correct address of the Management. He deposed that the Management used to provide all legal facilities under the Labour Laws to the Workman. He deposed that the attendance was used to be marked by virtue of taking signatures of the employees on the attendance register. But when he was confronted with the Attendance Register i.e. Ex.MW1/1, he found that no signature of any employee was appearing on the same and he changed his stand and said that though no signatures were used to be obtained but the attendance register was used to be always open for its employees to verify about the correctness of its entries. He denied the suggestion that the Management had terminated the services of the Workman w.e.f. 20.11.2014. He voluntarily said that LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 15 of 46 the Workman had left the job as he had failed to revert the payment of around Rs.50,000/ with respect to the goods supplied to various customers. He denied the suggestion that he was deposing falsely with respect to the said aspect. He deposed that the name of the Workman was removed from the muster rolls w.e.f. 10.07.2014 and that no permission from any Authority was obtained prior to removal of his name from the muster rolls. He deposed that it was not the Management which terminated the services of the Workman, rather it was the Workman, who abandoned the job. He deposed that at the time, when Workman was in the employment of the Management, the Management was having work force of around 8 persons. But when he was confronted with the Attendance Register i.e. Ex.MW1/1, it was found that the names of 1215 persons were appearing in the same. He deposed that the Management was not covered by the provisions of EPF Act and ESI Act. He deposed that neither any appointment letter nor salary slip nor identity card was issued to the Workman. He deposed that the Management was still ready to take the Workman back on duty but without payment of back wages. He denied the suggestion that the documents i.e. Ex.MW1/1 to Ex.MW LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 16 of 46 1/4 and Mark A and Mark B were forged and fabricated documents and that the same were prepared only to create false evidence. He admitted it as correct that the Management had employed some other person in place of Workman. He deposed that no separate seniority list was maintained with respect to the employees. He denied the suggestion that the Workman had never abandoned the job on his own. He deposed that with respect to the alleged noncollection of Rs.50,000/ or abandonment of job, neither any Showcause Notice nor any Chargesheet nor any Enquiry was issued/initiated against the Workman.
12. MW2 Dhananjay deposed in his affidavit of evidence i.e. Ex.MW2/A that he was working with the Management since the year 2009 and that the Workman had joined the Management on 07.04.2014 and lastly worked on 10.07.2014 and left the job on his own. He further deposed that on 10.01.2015, Labour Inspector namely Manish Mahajan had visited the office of the Management and an amount of Rs.10,000/ as full and final payment was made before the Labour Inspector.
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13. During his crossexamination by the AR of Workman, the MW2 deposed that he had not got any documentary proof that he was employed with the Management since the year 2009 but could produce the same if required. He denied the suggestion that the Workman had never abandoned the job on his own. He deposed that he was not aware as to whether the Management had ever called upon the Workman to join back the duties in writing. He denied the suggestion that the Management had terminated the services of the Workman w.e.f. 20.11.2014.
14. MW3 Niranjan deposed in his affidavit of evidence i.e. Ex.MW3/A that he was working with the Management since the year 2004 and that the Workman had joined the Management on 07.04.2014 and lastly worked on 10.07.2014 and left the job on his own. He further deposed that on 10.01.2015, Labour Inspector namely Manish Mahajan had visited the office of the Management and an amount of Rs.10,000/ as full and final payment was made before the Labour Inspector.
15. During his crossexamination by the AR of Workman, the MW3 LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 18 of 46 deposed that he had got no documentary proof of being employed with the Management since the year 2004. He denied the suggestion that he was not maintaining the attendance register of the employees. He also denied the suggestion that the Attendance Register i.e. Ex.MW1/1 was prepared on a very single day. He denied the suggestion that the Workman had joined the Management on 01.03.2013.
16. MW4 Manish Mahajan i.e. Labour Inspector deposed during his examinationinchief that in January, 2015, he was posted as Labour Inspector and after receiving Ex.WW1/2, he visited the premises of the Management along with Workman on 10.01.2015 and the Management had paid Rs.10,000/ to the Workman on 10.01.2015 and for balance amount, the Management had said that they would appear before the Labour Office along with the documents if there was any dues and the Management had reinstated the Workman on his job on that day. He deposed that the document already exhibited as Ex.MW1/4 was pertaining to the said Receipt of Rs.10,000/ by the Workman on 10.01.2015. He deposed that the Workman had LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 19 of 46 received the said payment in his presence. He further deposed that though it was written on the aforesaid document that it was full and final payment, but the Management had told him on that day that they would appear before the Labour Office along with the documents if there would be any dues.
17. During his crossexamination by the AR of Workman, the MW4 admitted it as correct that the Ex.MW1/4 was stating about the full and final payment towards "salary" only. He admitted it as correct that the payment made in the aforesaid document was not towards leave encashment, bonus, etc. He deposed that the Management had not produced any record pertaining to the Workman during his visit on 10.01.2015 or thereafter. He denied the suggestion that the Workman had never signed on Ex.MW1/4. It is pertinent to mention here that though this witness had deposed that the Management had reinstated the Workman on his job on 10.01.2015, but neither it is the case of the Management that the Workman was reinstated on 10.01.2015 nor he (Labour Inspector) had mentioned about it in his report dated 29.01.2015. Rather in his report, he has mentioned that the LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 20 of 46 Management had refused to reinstate the Workman and the Workman was advised by him to file his case before the appropriate authority.
18. I have heard the final arguments from Sh. Shashwat Singh Gaur, AR of Workman and Sh. Sanjeev Kumar Gupta, AR of Management and perused the record.
19. The AR of Management has argued that the Workman has not worked with the Management for 240 days in the preceding 12 months from the date of alleged termination of his services, as he had joined the job with Management on 07.04.2014 and lastly worked on 10.07.2014 and that the MW1 has specifically deposed in Para 5 of his affidavit of evidence i.e. Ex.MW1/A in this regard. But the AR of Workman has vehemently argued that the aforesaid contention of AR of Management is liable to rejected as the same is beyond pleadings. He has submitted that he had specifically raised this objection even at the time of tendering of evidence by MW1 on 17.03.2020. On perusal of record, it is revealed that nowhere in the entire Written Statement, it has been mentioned that the Workman had worked with the LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 21 of 46 Management from 07.04.2014 to 10.07.2014. In fact, in the entire Written Statement, no date of joining of Workman has been mentioned. Thus, the submission of AR of Workman is correct that it is beyond pleadings.
20. Regarding the evidence led by MW1 on this point of 240 days, the AR of Workman, while placing reliance upon the judgement delivered by Hon'ble Delhi High Court in case titled as Prakash Rattan Lal Vs. Mankey Ram, has argued that the same could not be considered as it is settled law that the evidence, which is beyond pleadings, cannot be taken into consideration by the Court.
21. The Hon'ble High Court of Delhi has held in Prakash Rattan Lal Vs. Mankey Ram, 2010(21) R.C.R.(Civil) 304 as follows:
"4. The sole purpose of pleadings is to bind the parties to a stand. When the plaintiff makes certain allegations, the defendant is supposed to disclose his defence to each and every allegation specifically and state true facts to the court and once the facts are stated by both the parties, the court has to frame LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 22 of 46 issues and ask the parties to lead evidence. It is settled law that the parties can lead evidence limited to their pleadings and parties while leading evidence cannot travel beyond pleadings. If the parties are allowed to lead evidence beyond pleadings, then the sacrosanctity of pleadings comes to an end and the entire purpose of filing pleadings also stand defeated. The other purpose behind this is that no party can be taken by surprise and new facts cannot be brought through evidence which have not been stated by the defendant in the written statement. The law provides a procedure for amendment of the pleadings and if there are any new facts which the party wanted to bring on record, the party can amend pleadings, but without amendment of pleadings, a party cannot be allowed to lead evidence beyond pleadings.
5. I am supported in this view by judgments of Supreme Court in AIR 1975 1 SCC 212; Harihar Prasad Singh & Ors. Vs. Balmiki Prasad Singh wherein the Supreme Court has held that evidence LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 23 of 46 adduced cannot travel beyond the pleadings. In AIR 1987 2 SCC 555; Ram Sarup Gupta by LRs Vs. Bishun Narain Inter College & Ors., the Supreme Court again reiterated that the evidence cannot travel beyond the pleadings."
22. The Hon'ble Supreme Court of India has held in Ram Sarup Gupta by LRs v. Bishun Narain Inter College & Ors., AIR 1987 2 SCC 555 as follows:
"It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise." LIR No.6279/2016
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23. Thus, it is settled law that the evidence cannot travel beyond the pleadings and that in the absence of pleadings, evidence, if any, produced by the parties cannot be considered. Since in the present case, the Management has nowhere pleaded in its Written Statement regarding noncompletion of 240 working days by the Workman in the preceding 12 months from the date of alleged termination of his services, therefore, the contention of the AR of Management in this regard is liable to be rejected as it pertains to the evidence which was led in the absence of pleadings.
24. It is also pertinent to mention here that in Para 1 of his Statement of Claim, the Workman had specifically mentioned that he had been working with the Management w.e.f. 01.03.2013 and while replying to the said paragraph in its Written Statement, the Management did not deny the said fact. So nondenial of said fact amounts to its admission. Hence, it is held that the contention of AR of Management that the Workman had not worked for 240 days in the preceding 12 months from the date of alleged termination of his services is devoid of merits and hence rejected.
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25. Before proceeding further to give my findings on the issues framed in this case, it is pertinent to mention here that in the Written Statement filed by the Management, the relationship of employeeemployer between the Workman and Management was denied and it was stated that the Workman had no permanent or temporary employment with the Management and hence, there was no occasion to terminate his services. But during evidence, no suggestion was given to Workman/WW1 that he was not employee of the Management. Rather suggestion was given to him that he had joined the Management on 07.04.2012 and abandoned the job on his own and further that he was habitual of taking advance against his salary and his salary was used to be adjusted against the said advance. Thus, from these suggestions, it is clear that the Management has admitted the relationship of employeeemployer between the Workman and the Management. It is also pertinent to mention here that even the MWs have also deposed that the Workman had joined employment with Management on 07.04.2014 and himself left the job on 10.07.2014. The MW1, who was Proprietor of Management, deposed during his crossexamination that the name of the Workman LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 26 of 46 was removed from the muster rolls w.e.f. 10.07.2014. Thus, he has admitted that the name of Workman was there on the muster rolls of the Management prior to 10.07.2014, meaning thereby that he has admitted that the Workman was employee of the Management. Hence, the relationship of employeeemployer between the Workman and Management has stood duly established/proved on record.
26. My issuewise findings are as under : ISSUE NO.1 Whether the services of the Workman have been terminated illegally and/or unjustifiably by the Management and if so, to what relief is he entitled?
27. The onus to prove this issue was upon the Workman. The case of the Workman regarding illegal termination of his services is that the Management had not provided him the legal facilities as per labour laws and when he demanded the said facilities, the Management got annoyed at him and illegally terminated his services. The Workman had stated in his Statement of Claim that during the tenure of his LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 27 of 46 employment with the Management, the Management had not provided him the legal facilities viz. appointment letter, salary slip, leave book, attendance card, identity card, weekly & festival holidays, bonus, pay as per the post, overtime, conveyance allowance, ESI, PF, etc. and when he demanded for the said facilities, the Management got annoyed at him and ultimately terminated his services illegally on 20.11.2014.
28. While replying to the said averments in its Written Statement, the Management did not state that it had provided the said facilities to the Workman. At the stage of evidence, the Workman/WW1 again reiterated the said averment and deposed that the Management had not provided him the legal facilities viz. appointment letter, salary slip, leave book, attendance card, identity card, weekly & festival holidays, bonus, pay as per the post, overtime, conveyance allowance, ESI, PF, etc. and when he raised demand for said facilities, the Management got annoyed at him and illegally terminated his services on 20.11.2014 without giving him any notice. But despite the aforesaid categorical testimony of the Workman, he was not cross LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 28 of 46 examined on the aforesaid points. Nor even a suggestion was given to him to deny the same. It is settled law that if the opposite party fails to crossexamine a witness on a certain point, then the said party is deemed to have accepted the same as true. It is held by Hon'ble Supreme Court in Sarwan Singh Vs. State of Punjab, AIR 2002 SC 3652, "It is a rule of essential justice that whenever opponent has declined to avail himself of the opportunity to put his case in crossexamination, it must follow that evidence tendered on that issue ought to be accepted."
It is also held by Hon'ble High Court of Delhi in Satyendra Kumar Sharma Vs. Jitender Kudsia, 2005 DLT 498, "Section 137 and 138 of Evidence Act Cross examination - If a witness is not crossexamined on a particular point, the opposite party must be deemed to have accepted truth of the statement."
29. Since in the present case, the Management has failed to cross LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 29 of 46 examine the WW1 on the aforesaid points, so, it is deemed to be admitted by the Management that it had not provided the aforesaid legal facilities to the Workman and when he raised demand for said facilities, the Management got annoyed at him and terminated his services on 20.11.2014. It is also pertinent to mention here that even the MW1, in his crossexamination, has admitted that no appointment letter or salary slip or identity card was ever issued to the Workman by the Management. He did not deny the fact that no ESI or PF facility was made available to the Workman. He only said that Management was not covered by the provisions of EPF Act and ESI Act. But as the Management was having 1115 employees working with it, so, ESI Act was applicable and the Management was required to provide the facility of ESI to the workers.
30. The MW1, MW2 and MW3 have deposed that the Workman himself had abandoned the job on his own on 10.07.2014. Abandonment of job means voluntary and absolute relinquishment of job. The failure to perform duties must be with actual or imputed intention, on the part of the employee to abandon and relinquish the LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 30 of 46 job. Temporary absence is not ordinarily sufficient to constitute an abandonment of office. In Buckingham Co. Vs. Venkatiah & Ors . (1964) 4 SCR 265 the Hon'ble Supreme Court has held that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf. Thus, whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstances of each case.
31. The MW1 had deposed during his crossexamination that the Workman had left the job as he had failed to revert the payment of around Rs.50,000/ with respect to the goods supplied to various customers. But the said averment has neither been pleaded in the LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 31 of 46 Written Statement nor proved by way of cogent evidence. The Workman/WW1, on the other hand, has categorically deposed in his affidavit of evidence that he had sent Demand Notice dated 05.12.2014 i.e. Ex.WW1/1 to the Management mentioning therein about illegal termination of his services by the Management and making demand for his reinstatement, but despite service of said notice, the Management did not give any reply to the said notice. But despite his categorical deposition, he was not crossexamined on the said point. It is also pertinent to mention here that in the cross examination of MW1, he admitted that the address mentioned on Ex.WW1/1 was the correct address of Management. Hence, the service of aforesaid Demand Notice is deemed to be affected on the Management. Failure to reply to the said notice makes a case for drawing an adverse inference against the Management. Had the stand, taken by Management regarding abandonment of job by the Workman, been correct, the Management would have replied to the Demand Notice of Workman denying therein his allegation of illegal termination; and asserting its point of abandonment of job by the Workman himself on account of his failure to revert payment to the LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 32 of 46 Management of Rs.50,000/ with respect to the goods supplied to various customers. But it never did so. Thus, it is not a case where it could be said that the Workman had voluntarily and willfully absented from duty or himself abandoned the job.
32. Now even if it is presumed for the sake of arguments that the Workman himself had stopped coming to the office, then it was the duty of Management to ask him to join duty because it is settled law that if a Workman fails to report for duty, the Management is bound to call upon him to join duty. It has been held by Hon'ble Delhi High Court in M/s. Fateh Chand Vs. Presiding Officer, Labour Court & Anr., 2012(3) SCT 724 as follows:
"It is also no more res integra that even in a case of unauthorized absenteeism or to prove abandonment of service on the part of the workman the management must place on record necessary material to prove that enough efforts were made by it to call upon the workman to resume back his duty and the workman has shown his clear reluctance for the same."
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33. But in the present case, no such material has been placed on record.
The Management has nowhere stated that it had asked the Workman to join duty during the period of his absenteeism. Nor is it a case of Management that it had issued any notice during the said period to the Workman to join duty. Rather the MW1 has categorically admitted in his crossexamination that the Management had neither issued any notice to the Workman regarding abandonment of job nor issued any chargesheet nor initiated any enquiry against him.
34. It has been held by Hon'ble Delhi High Court in Municipal Corporation of Delhi Vs. Sukhvir Singh & Ors., 53 (1994) DLT 821 that when the employment of the Workman is not for a specific period, then the denial of employment to him by the employer/management shall have to be only according to law and if the Workman has abandoned the employment, certainly that could have been a ground for holding an enquiry against him and passing appropriate order.
35. It has been held by Hon'ble Delhi High Court in Fateh Chand's case (supra) as follows:
LIR No.6279/2016
Vinod Singh Vs. M/s. Prashad Computers World Page 34 of 46 "It is also a settled legal position that abandonment of service is different from absenteeism.
Abandonment of service is the voluntarily relinquishment of one's services with the intention not to resume the same. It is a matter of inference to be drawn from the facts and circumstances of each case and mere absenteeism for a continuous period does not mean that the employee has abandoned his service. The management has to bring on record sufficient material to show that the employee has abandoned the service and abandonment cannot be attributed to the employee without there being sufficient evidence. On the failure to report for duty, the management has to call upon the employee and if he refuses to report, then an enquiry is required to be ordered against him and accordingly action taken. In the absence of anything placed on record by the petitioner management, no presumption against the respondent can be drawn."
(underlining added)
36. Thus, it is clear that when any Workman abandons the job, then it is LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 35 of 46 incumbent upon the Management to call him upon to report for duty and on his refusal to do so, to hold enquiry against him. But in the present case, admittedly no such enquiry was held. Nor any evidence is produced on record in support of any effort made by the Management to call upon the Workman to join his duty.
37. Hence, in view of the aforesaid analysis, it is clear that the Management has failed to prove that the Workman had abandoned the services, whereas the Workman has been able to prove that his services were terminated by the Management on 20.11.2014.
38. Last but not the least, it was contended by the AR of Management that the Workman was paid an amount of Rs.10,000/ on 10.01.2015 in the presence of the Labour Inspector as full and final settlement amount and thus, nothing was due against the Management. But the Management's own witness i.e. MW4 Labour Inspector has deposed that the said full and final payment was towards "salary" only and it was not towards leave encashment, bonus, etc. Thus, the Management has failed to prove that the full and final payment of all the dues was made to the Workman.
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39. Thus, it is clear that it is not a case of abandonment of job by the Workman rather it is a case of retrenchment. As per Sec.25F, the employer is bound to give to Workman, at the time of retrenchment, one month's notice or pay in lieu thereof and a compensation equivalent to 15 days' average pay for every completed year of continuous service. The present case is not one where the Management had issued any notice or given any notice pay or retrenchment compensation to the Workman in accordance with Sec.25F of Industrial Disputes Act. Hence, it is held that the termination of services of Workman by the Management is in violation of Sec.25F of Industrial Disputes Act and hence is illegal.
40. Apart from challenging the legality of termination of services of Workman under Sec.25F of Industrial Disputes Act, the Workman has challenged it for violation of Sec.25G of Industrial Disputes Act also. The AR of Workman has argued that at the time of termination of services of the Workman, the Management had retained the junior employees namely Dhanajay and Manoj. Sec.25G introduces the rule of 'last come, first go' as per which the employer has to retrench LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 37 of 46 the employees in an ascending order. As per Sec.25G, those who fall in the same category shall suffer retrenchment only in accordance with the principle of 'last come, first go'. Thus, as per Sec.25G, an employer, at the time of retrenchment of a workman, is required to retrench the workman who was the last person to be employed in that category. Now so far as the present case is concerned, the Workman has failed to prove that employees Dhananjay and Manoj were junior to him and were employed in the same category as of his own. The Management's witness i.e. MW1 has categorically deposed in his affidavit of evidence that Dhananjay and Manoj had been working continuously with the Management since the year 2009. But despite his categorical testimony, neither any question was put to him nor any suggestion was given to him to deny the said fact. The Management has examined Dhananjay as MW2 and he had also categorically deposed that he had been working with the Management since the year 2009. But again, no suggestion was put to him to deny the said fact. It is settled law that if the opposite party fails to crossexamine a witness on a certain point, then the said party is deemed to have accepted the same as true. It is worth mentioning here that the MW2 LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 38 of 46 had deposed during his crossexamination that he could produce the documentary proof of his being employed with Management since the year 2009, but the AR of Workman did not ask him to produce any such proof. The Workman's own case is that he had started working with the Management in the year 2013. Thus, it is clear that the employees Dhananjay and Manoj were not junior to him. Hence, it is held that termination of services of Workman is not in violation of Sec.25G of Industrial Disputes Act, 1947.
41. Apart from Sec.25F and Sec.25G, the Workman has challenged his retrenchment under Sec.25H of Industrial Disputes Act also. As per Sec.25H, if the employer wants to employ some person, then he is required to first give an opportunity to the retrenched workmen to offer themselves for the reemployment and further that they should be given preference over the other persons. The AR of Workman has vehemently argued that the Management has violated the provisions of Sec.25H as new persons were recruited by the Management whereas no opportunity was provided to the Workman for re employment. There is force in his contention as the MW1 i.e. the LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 39 of 46 Proprietor of Management has categorically admitted in his cross examination that in place of Workman, the Management had employed some other person. It is not the case of the Management that it had given opportunity to the Workman for his reemployment. Hence, it is a case of violation of Sec.25H of Industrial Disputes Act, 1947 also.
42. The Workman has also challenged the termination of his services under Sec.25N of Industrial Disputes Act. But since, the Workman has failed to prove that more than 100 workmen were employed by the Management on an average per working day for the preceding twelve months, therefore, Sec.25N is not attracted in the present case.
43. Hence, in view of the aforesaid analysis, it is clear that the Management has violated the provisions of the Sec.25F and Sec.25 H of Industrial Disputes Act at the time of retrenchment/termination of services of the Workman. Hence, it is held that the services of workman have been terminated illegally and/or unjustifiably by the Management. Accordingly, this issue is decided in favour of the LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 40 of 46 Workman and against the Management.
Relief:
44. The Workman has prayed for his reinstatement with full back wages and continuity of service with all consequential benefits.
45. It has been held by Hon'ble Supreme Court in Hindustan Tin Works (P) Ltd. Vs. Employees of M/s Hindustan Tin Works Pvt. Ltd. & Ors., (1979) 2 SCC 80 that full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. It has been further held in the said case by Hon'ble Apex Court as follows:
"When it was held that the termination of services was neither proper nor justified, it would not only show that the workmen were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workmen were always ready to work but they were kept away therefrom on account of an invalid act of the employer, there is no justification for not awarding LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 41 of 46 them full back wages which were very legitimately due to them."
46. It is pertinent to mention here that in the landmark judgment titled as Deepali Gundu Surwase Vs. Kranti Junior Adhyapak & Ors., 2013(10) SCC 324, the Hon'ble Supreme Court has held that in cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. The Hon'ble Apex Court has held as follows:
"The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 42 of 46 up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasijudicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 43 of 46 Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."
47. It has also been held in Deepali Gundu's case (supra), "Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 44 of 46 lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments."
48. In the present case, the Workman/WW1 has specifically deposed in his affidavit of evidence that he was unemployed since the day of illegal termination of his services and could not find any job despite efforts made by him. Thus, the onus had shifted to the Management to prove the contrary. The Management was required to lead cogent evidence of gainful employment of the Workman during the said period. The Workman/WW1 had also deposed in his cross examination that he had tried many times to obtain alternate employment after his termination but could not succeed. But not even any suggestion was given to him to deny the said fact. Otherwise also, the Management has not pleaded in its Written Statement that LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 45 of 46 the Workman was gainfully employed. Thus, there is no evidence from the side of Management regarding gainful employment of the Workman and hence, it is clear that the Management has failed to prove that the Workman was gainfully employed after illegal termination of his employment on 20.11.2014.
49. The Hon'ble Supreme Court in Deepali Gundu's case (supra) has held that the Courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
50. Hence, in view of the aforesaid discussion/analysis and the law laid down by the Hon'ble Apex Court, the Statement of Claim as filed by the Workman is allowed and the Management is directed to reinstate the Workman in service with continuity of service and full back wages along with all other consequential benefits.
51. Award is passed accordingly. Reference stands answered in LIR No.6279/2016 Vinod Singh Vs. M/s. Prashad Computers World Page 46 of 46 aforesaid terms. Copy of this Award be sent to Labour Commissioner for publication. Case file be consigned to the Record Room.
Digitally
signed by
NAVITA
NAVITA KUMARI
(Announced in open KUMARI BAGHA
Date:
Court on 24.05.2023) BAGHA 2023.05.24
18:20:50
+0530
(Navita Kumari Bagha)
Presiding Officer, POLC07,
Rouse Avenue District Court, New Delhi
LIR No.6279/2016
Vinod Singh Vs. M/s. Prashad Computers World