Delhi District Court
{The Requisite Details Of The vs M/S. Ring Road Honda (Sugoi Motor Pvt. ... on 27 January, 2022
Page 1 of 38
IN THE COURT OF MS. NAVITA KUMARI BAGHA, PRESIDING OFFICER,
LABOUR COURT-07, ROUSE AVENUE DISTRICT COURT, NEW DELHI
LID No.475/2016
CNR No. DLCT13-000145-2016
Deepak Chauhan
S/o Sh. Vishan Singh
R/o 158/3, E-Block
Gali No.19, Rama Vihar
Karala, New Delhi-110081
{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:
28-B, 3rd Floor, Shyam Nagar, Okhla Phase III, New Delhi-110020.
Present Address of the Workman:
28-B, 3rd Floor, Shyam Nagar, Okhla Phase III, New Delhi-110020.
Mobile Number of the Workman:
7052462419
Name and Mobile Number of the AR of the Workman:
Sh. Dharmendra Kumar
Mobile No. 9891445632
Details of one of immediate family member of the Workman:
Mrs. Poornima Negi (Wife)
Mobile No. 7011356645
Aadhar Card No. 5297 5852 9286
Aadhar Card Number of the Workman:
6358 2599 8632}
............ Workman
LID No.475/2016
Deepak Chauhan Vs. M/s. Ring Road Honda (Sugoi Motor Pvt. Ltd.)
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Vs.
M/s. Ring Road Honda (Sugoi Motor Pvt. Ltd.)
A-21, Shivaji Marg,
New Delhi-110015
.......... Management
Date of filing of Claim : 05.01.2016
Date of passing Award : 27.01.2022
AWARD
1. The Statement of Claim U/Sec.2A of Industrial Disputes Act, 1947, was
filed by the Workman on 05.01.2016. The brief facts as mentioned in the
Statement of Claim are as follows :-
1. That the Workman had been working continuously
with the Management since 27.07.2013 as Driver and
his last drawn wages were Rs.8,200/- per month.
2. That the Workman had worked with sincerity and
honesty and there was no complaint against him
during his entire service tenure as his conduct and
performance was quite satisfactory. Nor the
Management had ever given him any show-cause
notice or ever charge-sheeted him for any dereliction
of duty or misconduct.
3. That the Management had not given any Appointment
Letter and legal facilities to him despite demands
made by him.
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4. That on 08.10.2014, he met with an accident while he
was on duty as at that time he was returning to office
of Management after dropping vehicle no. DL-10-CH-
0278 of one Mr. Pankaj Jain after its service.
5. That he immediately informed the Management about
the accident through phone and Mr. Pankaj, Mr.
Subhash and Mr. Vikas, who were working with the
Management, had also visited him in Hindu Rao
Hospital where he was taken by the PCR Van and
plaster was put on his right leg. He was dropped at his
home by the aforesaid three persons after getting
treatment at Hindu Rao Hospital. Thereafter, he was
treated at Safdarjung Hospital as he had received
severe injuries on his right knee and left shoulder. He
was issued medical certificate for leave w.e.f.
08.10.2014 to 26.11.2014 from Safdarjung Hospital.
6. That after recovering from the medical problem, he
reported for duty with the Management on 27.11.2014,
but the Management, without assigning any reason,
refused to take him on duty and thus illegally
terminated his services on 27.11.2014 without giving
any Chargesheet or Show-cause Notice and without
paying him his earned wages for the months of
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August, 2014, September, 2014 and 8 days of October,
2014 and retrenchment compensation or any legal
dues.
7. That the Workman sent a demand notice dated
17.04.2015 to the Management requesting therein to
reinstate him with full back wages and pay his legal
dues, but despite receipt of said notice, the
Management neither replied to the said notice nor
reinstated him.
8. That the Workman is unemployed and is without any
Work or job despite his best efforts.
9. That the Workman filed his Statement of Claim before
the Conciliation Officer, Labour Office, Karampura,
Delhi, but the Management before the Conciliation
Officer also refused to take him back on duty and to
pay his legal dues. The Conciliation Officer issued
Failure Report dated 01.10.2015 U/Sec.2-A(1) and (2)
of the Industrial Disputes Act, 1947 and hence the
present case was filed by the Workman in the Court.
2. Notice of Statement of Claim was issued to the Management and upon
service of said notice, the Management filed its Written Statement on
21.04.2016 wherein it denied almost all the averments made in the
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Statement of Claim. The brief facts as mentioned in the Written
Statement of Management are as follows:
1. That the Workman was working under the Management
as casual employee and not as permanent employee
and therefore he was not entitled for any PF, bonus as
per the company policy.
2. That the Workman has not revealed that being Driver,
his duty was to pick-up and drop the customers'
vehicle/car and to collect money for the invoice
amount/services so provided to the customers and to
deposit the said payment with the Management, but he
became dishonest and siphoned off the payments so
received by him from the customers and did not
deposit the said payments with the Management and
thus siphoned off a total amount of Rs.45,578/- and
also stopped coming to the office after 26.11.2014 in
order to escape the liability for the said amount.
3. That the Workman had joined the services of the
Management on 27.07.2013 and was last present in the
office of the Management on 26.11.2014.
4. That the Management made a police complaint dated
18.12.2014 in P.S. Moti Nagar vide DD No.41-B against
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him regarding siphoning off the money and also
issued legal notice dated 03.08.2015 to him, but
despite service of legal notice and lodging of aforesaid
complaint, he did not pay any amount to the
Management.
5. That he himself left the services of the Management
without any resignation and intimation.
6. That no information was given by him to the
Management either telephonically or by other means
regarding the accident. It has been denied for want of
knowledge that Mr. Pankaj, Mr. Subhash and Mr. Vikas
had visited the Workman in the hospital after accident
or that they had dropped him at his house.
7. That the Workman had not reported for duty on
27.11.2014.
8. That the Workman had never visited the Management
after 08.10.2014 and had voluntarily left the services of
the Management.
3. The Workman filed his Rejoinder to the Written Statement of the
Management on 30.05.2016, wherein he denied almost all the
averments of the Management and emphasized that the submissions
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made by him in his Statement of Claim were true and correct.
4. After completion of pleadings, the following issues were framed by Ld.
Predecessor Court vide order dated 30.05.2016:
1. Whether the workman worked with the management in terms of
averments made in the statement of claim and management
terminated his services illegally/unjustifiably? If so, to what relief
workman is entitled for? OPW
2. Whether workman was working with the management as casual
employee? If so, to what effect? OPM
3. Whether the workman was last seen in the office of management on
26.11.2014 and workman by his own will and mind stopped coming
to the office of management without communication/intimating to
the supervisory officials in order to escape the liabilities for the
amount received by him from the customers and dishonestly
siphoned by the workman and did not turn up to rejoin duties with
the management nor returned money received by him from the
customers on behalf of management? OPM
4. Relief.
5. In order to prove his case, the Workman has examined only one witness
i.e. himself as WW-1. In his affidavit of evidence i.e. Ex.WW-1/A, the
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Workman/WW-1, while reiterating and reaffirming the contents of his
Statement of Claim, has deposed that he has been unemployed since
the date of his illegal termination and despite efforts made by him, he
could not get any job. He, in order to prove his case, has exhibited the
following documents:
(i) Ex.WW-1/1 - Documents pertaining to his medical treatment at
Hindu Rao Hospital and Safdarjung Hospital and copy of RC of
vehicle of Mr. Pankaj Jain (running into six pages).
(ii) Ex.WW-1/2 - Demand Notice dated 17.04.2015.
(iii) Ex.WW-1/3 - Statement of Claim filed before the Conciliation
Officer.
(iv) Ex.WW-1/4 - Written Statement filed by the Management before
the Conciliation Officer.
(v) Ex.WW-1/5 - Replication filed by Workman to the WS of
Management filed before the Conciliation Officer.
(vi) Ex.WW-1/6 - Failure Report dated 01.10.2015 given by the
Conciliation Officer.
(vii) Ex.WW-1/7 - Postal Receipt vide which the Demand Notice
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Ex.WW-1/2 was dispatched.
6. He was duly cross-examined by the AR of Management on 17.11.2016
and during his cross-examination, he deposed that he had joined the
Management on 27.08.2013 as Driver and his salary throughout his
employment was Rs.8,200/- per month and that he used to receive the
salary in cash. He further deposed that his job as a Driver was to bring
the four-wheelers from the houses of the customers and return the same
and further that he used to manage the parking of the vehicles received
after washing. He admitted it correct that he used to receive the
payments from the customers and used to carry documents like
Ex.WW-1/XM-1. He admitted his signatures on point A on documents
Ex.WW-1/XM-2, Ex.WW-1/XM-3, Ex.WW-1/XM-4, Ex.WW-1/XM-6 and
Ex.WW-1/XM-7. However, he denied that he had not deposited the
amount of Rs.45,578/- with the Management which he had received
from the customers or that when the Management demanded the said
amount from him, he left the job without intimation or notice to the
Management. Though he admitted it correct that the factum of accident
was not mentioned in Ex.WW-1/3 i.e. the Statement of Claim filed
before the Conciliation Officer, however he deposed that he had met
with an accident on 08.10.2014 and was carried to Hindu Rao Hospital
by the PCR Van. On the question asked by the AR of the Management
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as to how did the accident occur, he described that on that day, after
dropping vehicle at Rohini, he came back in Metro and got down at
Inderlok Metro Station and started walking towards bus stand for going
to office at Moti Nagar and at that time, he was hit by one bike from
backside, as a result of which he became unconscious and was carried
by PCR van to Hindu Rao Hospital. He further deposed that he had
gone to deliver the RC of the Vehicle alongwith the new vehicle and had
obtained the signature of the customer on the photocopy of the RC and
the said signature was put by the customer in his presence at Point A on
page 5 of Ex.WW-1/1 i.e. the photocopy of the said RC. Regarding the
medical documents pertaining to Safdarjung Hospital, he deposed that
he was feeling pain due to plaster and thus he visited Safdarjung
Hospital with his father. He further deposed that his medical documents
were deposited with Mr. Amit Sehgal, General Manager of the
Management by his sister namely Ramaya Chauhan. He denied receipt
of any Legal Notice dated 03.08.2015 i.e. Mark WW-1/XM-8.
7. In Management's evidence, Management examined only one witness
i.e. MW-1 Sh. J.S. Harit, Assistant Manager of Sugoi Motors Pvt. Ltd
who deposed in his affidavit of evidence i.e. Ex.MW-1/A that the
Workman had joined the service of Management on 27.07.2013 as
Casual Worker and that he was kept as a Driver to pick-up and drop
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customers' vehicles and to collect money for the invoices and services
provided by the workshop and deposit the said amount with the
Management, but he misappropriated/siphoned off a sum of Rs.45,578/-
and did not report for duty and abandoned its services despite notice
dated 03.08.2015 sent by the Advocate of the Management. He further
deposed that the Management had also filed police complaint against
the Workman for siphoning off the funds. He further deposed that the
Workman had been working for various companies even after
November, 2014. He further deposed that the Management had never
terminated the services of the Workman rather he himself had
abandoned the employment. He exhibited the following documents:
(i) Ex.MW-1/1 - Authorization Letter/Board Resolution.
(ii) Mark MW-1/2 - Photocopy of police complaint dated 18.12.2014.
(iii) Ex.MW-1/3 - Legal Notice dated 03.08.2015 (already marked as
Mark WW-1/XM-8) of Management wherein it had called upon the
Workman to make payment of Rs.45,578/- to the Management.
(iv) Ex.MW-1/4 - Postal Receipt.
8. MW-1 was duly cross-examined by the AR of Workman on 26.07.2017.
During his cross-examination, he deposed that the original of police
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complaint i.e. Mark MW-1/2 was not in possession of the Management
as the same was got misplaced. However, he denied that the said
document was forged and fabricated. He further deposed that he had
never visited the police station to pursue the said complaint and that Mr.
Harish Chandra, Manager (HR) was pursuing the said complaint and he
had told him that no action was taken by the police on the said
complaint. However, he denied the suggestion that no action was taken
by the police as the said complaint was fabricated and false.
9. He further deposed that about 250 employees were working with the
Management and that the Management used to keep the complete
record of employees including their fathers' name and addresses. He
admitted it correct that the name of the father of Workman as well as his
address was wrongly mentioned on Legal Notice dated 03.08.2015. i.e.
Ex.MW-1/3.
10. He denied the suggestion that the Management had not provided any
appointment letter to the Workman at the time of joining. He admitted it
correct that the Workman had joined as Driver with the Management on
27.07.2013 and his salary was Rs.8,200/- per month. He further
admitted it correct that the Workman was not issued any Show-cause
Notice or Charge-sheet during his service tenure and that no enquiry
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was ever conduct against him regarding misconduct. He further
admitted it correct that the Management did not provide the facilities of
ESI, PF, Bonus etc. to the Workman.
11. He deposed that he was not having knowledge that the Workman had
informed the Management about the accident or that Mr. Pankaj, Mr.
Subhash and Mr. Vikas, employees of the Management, had visited the
Management in the hospital. He denied that the Workman had reported
for duties on 27.11.2014 but the Management refused to take him on
duty and illegally terminated him on 27.11.2014 or that the Management
did not pay earned wages to him of August, 2014, September, 2014 and
8 days of October, 2014.
12. He deposed that the document Ex.WW-1/XM-5 was prepared by Mr.
Jugal Kishore, Accountant of Accounts Department. He admitted it
correct that the said document was not signed by the workman as
acknowledgement of the same. However, he denied that it was a false
and fabricated statement. He further deposed that the Management had
not issued any Charge-sheet or conducted any enquiry regarding
misappropriation/siphoning off of Rs.45,578/- by the Workman.
However, he denied the suggestion that the Workman had not
misappropriated any amount of the Management or that the
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Management had leveled false allegation in order to deny the legitimate
claim of the Workman. He further deposed that the Management had
not issued any Show-cause Notice or Charge-sheet for his absenteeism
w.e.f. 26.11.2014. He further deposed that the Management was not in
possession of any documentary proof to show that the Workman was
gainfully employed after November,2014. He admitted it correct that the
address of Management mentioned on the Demand Notice of Workman
i.e. Ex.WW-1/2 was correct. He admitted it correct that Ex.WW-1/XM-1,
Ex.WW-1/XM-2, Ex.WW-1/XM-3, Ex.WW-1/XM-4, Ex.WW-1/XM-6 and
Ex.WW-1/XM-7 were not bearing the signature of Workman.
13. I have heard the final arguments from Sh. Dharmendra Singh and Sh.
Shashi Bhushan, ARs of the Workman as well as from Sh. Ashok
Chhabra, AR of the Management and perused the record.
14. While coming to the Issues framed vide order dated 30.05.2016, I would
like to take up Issue No.2 before giving my findings on Issue No.1.
ISSUE NO.2
Whether workman was working with the management as casual
employee? If so, to what effect?
15. The onus to prove this issue was on the Management. But the
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Management has failed to produce any documentary evidence to prove
that the Workman was only a Casual employee. The MW-1, during his
cross-examination, denied that the Management had not provided any
Appointment Letter to the Workman. This means that as per the
Management, Appointment Letter was duly issued to the Workman.
Now, if the Management had issued the Appointment Letter to the
Workman, then why it has not produced the office copy of the same
before the Court to prove the true status of employment of the
Workman. It would have become ample clear from the Appointment
Letter if the Workman was a Casual employee, as alleged by the
Management. But the Management has chosen not to produce the said
letter and hence, adverse inference is liable to be drawn against it.
Thus, it is clear that the Management had withheld the said letter
because had it been brought on record, it would have disproved the
Management's case of Workman being a Casual employee.
16. The Workman/WW-1, on the other hand, has categorically deposed in
his affidavit of evidence i.e. Ex.WW-1/A that he had been working
continuously with the Management since 27.07.2013. But despite his
said categorical deposition, he was not cross-examined on the said
point. Nor even any suggestion was given to him to deny the same. It is
settled law that if the opposite party fails to cross-examine a witness on
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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 as follows:
"It is a rule of essential justice that whenever
opponent has declined to avail himself of the
opportunity to put his case in cross-examination, 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 cross-examined on a
particular point, the opposite party must be deemed to
have accepted truth of the statement."
17. Since in the present case, the Management has failed to cross-examine
the WW-1 on the aforesaid points, so, the same are deemed to be
admitted by the Management. Thus, it is clear from the above
discussion that the Management has failed to prove that the Workman
was only a Casual employee whereas the Workman has sufficiently
established that he had been working continuously with the
Management since 27.07.2013. Hence this issue is decided in favour of
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the Workman and against the Management.
ISSUE NO.1
Whether the workman worked with the management in terms of
averments made in the statement of claim and management
terminated his services illegally/unjustifiably? If so, to what relief
workman is entitled for?
18. This Issue has two parts - (i) Whether the workman worked with the
management in terms of averments made in the statement of claim; and
(ii) Whether the management terminated his services
illegally/unjustifiably?
19. Regarding the first part, the Workman has averred in his Statement of
Claim that he had been working continuously with the Management as
driver since 27.07.2013 and his monthly salary was Rs.8,200/-. The
aforesaid salary is an admitted fact and it has already been held above
while deciding Issue No.2, that the Workman has sufficiently established
that he had been working continuously with the Management since
27.07.2013. Otherwise also, it is not disputed fact that he had worked
with the Management for more than 240 days during the period of
twelve calendar months preceding the date of his last working day.
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20. Regarding the second part of the Issue, the case of the Workman is that
he had met with an accident on 08.10.2014 and was advised bedrest by
the doctor till 26.11.2014 and when he went to office on 27.11.2014, the
Management did not allow him to join duty and illegally terminated his
services.
21. But the case of the Management is that the Workman had committed
embezzlement of an amount of Rs.45,578/- as mentioned in document
Ex.WW-1/XM-5 and when he was asked to pay the said amount, he
himself stopping coming to the office and left the job. However, the
Management's own witness i.e. MW-1 has categorically admitted in his
cross-examination that the Management had neither issued any Charge-
sheet nor conducted any enquiry against the Workman regarding the
misappropriation/siphoning off of Rs.45578/-. The aforesaid document
i.e. Ex.WW-1/XM-5 is outstanding statement of accounts of Mr. Deepak
Driver. It is pertinent to mention here that the same does not bear the
signature of Workman acknowledging the amount mentioned in the said
document as outstanding against him. The MW-1 during his cross-
examination has deposed that the aforesaid document was prepared by
Mr. Jugal Kishore, Accountant of Accounts Department. He has admitted
it correct that the same was not signed by the Workman as
acknowledgement of the same. The aforesaid document has not been
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duly proved by the Management as Mr. Jugal Kishore was not brought
to the witness box to prove the aforesaid document. So far as the other
documents i.e. Ex.WW-1/XM-2, Ex.WW-1/XM-3, Ex.WW-1/XM-4,
Ex.WW-1/XM-6 and Ex.WW-1/XM-7, on which the Workman has
admitted his signatures at Point A, are concerned, it is pertinent to
mention here that the signatures have been admitted by the Workman
on the said documents only on the gate passes and from none of these
documents, it could be held that he had committed embezzlement of
amount of Rs.45.578/-.
22. Though the Management's case is that it had lodged a police complaint
dated 18.12.2014 against the Workman for siphoning off the money, but
it has utterly failed to prove the said complaint. Only photocopy of the
said complaint i.e. Mark MW-1/2 has been placed on record. Neither the
original of the same was placed on record nor any record was
summoned from the police station to prove it. Thus, the said document
has remained unproved on record. Otherwise also it is pertinent to
mention here that the said complaint, even if presumed to be lodged,
was lodged on 18.12.2014 i.e. after lapse of considerable time of illegal
termination of Workman on 27.11.2014. Hence, it could not be ruled out
that the said complaint was a result of afterthought and filed for using it
as a defensive tool in future.
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23. Thus, it is clear from the aforesaid analysis that the Management has
failed to prove on record that the Workman had siphoned off the
aforesaid amount.
24. The Workman/WW-1, on the other hand, has categorically deposed that
he had met with an accident on 08.10.2014 while coming back after
delivering vehicle to one customer namely Mr. Pankaj Jain and was
taken to Hindu Rao Hospital by PCR Van as he had become
unconscious. He has further deposed that he had informed the
Management through phone regarding his accident and his three
colleagues namely Pankaj, Subhash and Vikas had visited him also in
the Hindu Rao Hospital. He has also proved his medical documents viz.
Ex.WW-1/1.
25. The MW-1 has not categorically denied the factum of Workman's
receiving fracture in right knee and left shoulder due to accident; or his
informing the Management about the said accident; or visiting of the
Workman in the hospital by other employees namely Pankaj, Subhash
and Vikas; or the said three persons being employees of the
Management. He has simply stated that he does not have the
knowledge about the aforesaid facts. The relevant portion of his
testimony in this regard is reproduced hereinbelow:
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"I do not have knowledge that the Workman has informed
the management about the accident and Mr. Pankaj, Mr.
Subhash and Mr. Vikas employees of the management had
visited the workman in the hospital. I do not know whether
Mr. Pankaj, Mr. Subhash and Mr. Vikas were working with
the management at that point of time. I am also not aware
whether the workman had suffered fracture in his right
knee and left shoulder or that his leg was plastered."
26. Thus, neither the aforesaid facts have been specifically denied by the
Management's witness nor the aforesaid three persons were brought by
the Management to the witness box to prove the contrary. Hence, in this
scenario the aforesaid facts are deemed to be admitted by the
Management. The Workman has duly proved Ex.WW-1/1 which consists
of Medical Certificate issued by Safdarjung Hospital (as per which the
Workman was suffering from injury in right knee and left shoulder and
was advised rest from 08.10.2014 to 26.11.2014), OPD Cards of
Safdarjung Hospital, copy of RC of vehicle of Mr. Pankaj Jain and
document containing Information in Medical Legal Cases issued by
Hindu Rao Hospital (as per which the Workman was brought to Hindu
Rao Hospital by PCR Van on 08.10.2014 with alleged history of road
accident).
27. Hence, on the basis of above analysis, it is clear that on the basis of
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preponderance of probabilities, the Workman has been able to establish
that he had met with an accident on 08.10.2014 and he had informed
about the same on the same day to the Management also.
28. The case of the Management is that the Workman had himself
abandoned the job as he had committed embezzlement of Rs.45,578/-
and when he was asked about the said amount, he stopping coming to
the office. It is already held above that the Management has failed to
prove on record that the Workman had committed embezzlement of the
aforesaid amount. So far as the point of abandonment of job is
concerned, let us see what is the law regarding abandonment of job and
whether the Workman himself had abandoned the job?
29. 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 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
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Deepak Chauhan Vs. M/s. Ring Road Honda (Sugoi Motor Pvt. Ltd.)
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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 surrounding circumstances of each case.
30. It has already been held above that the Workman has been able to
establish that he had met with an accident on 08.10.2014 and he had
informed about the same on the same day to the Management also. He
has also sufficiently established that he was advised bedrest by doctor
from 08.10.2014 to 26.11.2014. Thus, his absence from job for the said
period was not voluntary absenteeism but for the aforesaid reason. The
Workman/WW-1 has categorically deposed in his affidavit of evidence
that he had sent Demand Notice dated 17.04.2015. i.e. Ex.WW-1/2 to
the Management mentioning therein about his illegal termination by the
Management and making demand for his reinstatement with full back
wages and payment of his legal dues, 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 cross-examined on the said point.
It is also pertinent to mention here that in his cross-examination, MW-1
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has admitted that the address of Management mentioned on Demand
Notice Ex.WW-1/2 is the correct address. 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 before this Court 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 embezzlement and abandonment
of job by the Workman himself. 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.
31. Now even if it is presumed for the sake of arguments that the Workman
himself had stopped coming to office without informing the Management
about his accident, 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
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Deepak Chauhan Vs. M/s. Ring Road Honda (Sugoi Motor Pvt. Ltd.)
Page 25 of 38
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."
32. 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 i.e. from 09.10.2014 to
26.11.2014. Nor is it a case of Management that it had issued any notice
during the aforesaid period to the Workman to join duty. As per the
Management, only one notice i.e. Ex.MW-1/3 was sent to Workman. But
this was sent on 03.08.2015 i.e. much after the date of illegal
termination and hence it will not serve any purpose. Moreover, the said
notice was issued just to call upon the Workman to pay Rs.45,578/- to
the Management, it was not issued to him to ask him to join the duty. It
will not be out of place to mention here that the MW-1 has admitted in
his cross-examination that the name of father of Workman and his
address on the aforesaid notice is incorrect. Hence, the service of said
notice could not be deemed to be affected upon the Workman.
33. It has been held by Hon'ble Delhi High Court in Municipal Corporation
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Deepak Chauhan Vs. M/s. Ring Road Honda (Sugoi Motor Pvt. Ltd.)
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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.
34. It has been held by Hon'ble Delhi High Court in Fateh Chand's case
(supra) as follows:
"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
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Deepak Chauhan Vs. M/s. Ring Road Honda (Sugoi Motor Pvt. Ltd.)
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petitioner management, no presumption against the
respondent can be drawn."
(underlining added)
35. Thus, it is clear that when any Workman absents from duty, then it is 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 ever 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. The MW-1 has categorically admitted in his cross-examination that the Management had not issued any Show-cause Notice or Chargesheet to the workman for his absenteeism w.e.f. 26.11.2014. Now if the case of Management for not issuing any such notice due to the reason of Workman having committed embezzlement of ₹45,578/- is taken into consideration, then it was incumbent upon the Management to hold enquiry against the Workman as per law. But it has been deposed by MW-1 that the Management had not issued any Chargesheet or conducted any inquiry regarding misappropriation or siphoning off of Rs.45,578/- by the Workman.
36. Thus, in view of the aforesaid discussion, it is clear that the Management has failed to prove that the Workman had siphoned off the LID No.475/2016 Deepak Chauhan Vs. M/s. Ring Road Honda (Sugoi Motor Pvt. Ltd.) Page 28 of 38 amount of Rs.45,578/- or that he himself had abandoned his services with the Management, whereas the Workman has sufficiently established that the reason of his absence from duty from 09.10.2014 to 26.11.2014 was that he had met with an accident on 08.10.2014 and he had informed about the same on the same day to the Management also.
37. Thus, it is clear that it is not a case of abandonment of job by the Workman rather it is a case of retrenchment. It is not disputed that the Workman had worked with Management for more than 240 days during the period of twelve calendar months preceding the date of his last working day. It is settled law that irrespective of whether a Workman was daily wager or not, once he has completed 240 days of continuous service, the termination of his services without complying with the provision of Sec.25-F of Industrial Disputes Act, 1947, is illegal. (Reliance is placed on Rameshwar Dayal Vs. Presiding Officer, Labour Court & Anr., 2007 (95) DRJ 523; Delhi Cantonment Board Vs. Central Govt. Industrial Tribunal, 2006 (88) DRJ 75). The MW-1 has categorically stated in his deposition that more than 250 workers were working with the Management. Hence Sec.25-N of Industrial Disputes Act, 1947 is attracted in this case. As per Sec.25-N, the employer is bound to give to Workman, at the time of retrenchment, three months' notice or pay in lieu thereof and a compensation LID No.475/2016 Deepak Chauhan Vs. M/s. Ring Road Honda (Sugoi Motor Pvt. Ltd.) Page 29 of 38 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.25-N of Industrial Disputes Act. Hence, it is held that the termination of services of Workman by the Management is illegal. Accordingly, this issue is decided in favour of the Workman and against the Management. ISSUE NO.3 Whether the workman was last seen in the office of management on 26.11.2014 and workman by his own will and mind stopped coming to the office of management without communication/intimating to the supervisory officials in order to escape the liabilities for the amount received by him from the customers and dishonestly siphoned by the workman and did not turn up to rejoin duties with the management nor returned money received by him from the customers on behalf of management?
38. The onus to prove this issue was upon the Management. The first limb of this issue is that whether the Workman was last seen in the office of Management on 26.11.2014? It is pertinent to mention here that though in the Preliminary Objections mentioned in the Written Statement, the LID No.475/2016 Deepak Chauhan Vs. M/s. Ring Road Honda (Sugoi Motor Pvt. Ltd.) Page 30 of 38 Management has stated that the Workman was last present in the office of Management on 26.11.2014 but in reply on merits, it has taken a total contradictory stand and stated that the Workman had never visited the Management after 08.10.2014 (para 6). Thus, the Management itself is not clear that as to on which date the Workman had lastly visited the office of Management. Otherwise also, the Management has neither produced any Attendance Register nor examined any witness who had seen him in the office on 26.11.2014. Neither any suggestion was given to the Workman in his cross-examination in this regard. Hence, the Management has failed to discharge its onus to prove that the Workman was last seen in the office of Management on 26.11.2014. The Workman, on the other hand, has proved his medical documents i.e. Ex.WW-1/1 as per which he had not joined office from 09.10.2014 to 26.11.2014 due to medical reasons. Hence, it is clear that the Management has failed to prove that the Workman was last seen in the office of Management on 26.11.2014.
39. Regarding the second limb of the Issue, it has already been decided while giving findings on the Issue No.1 that the Management has failed to prove that the Workman had siphoned off the amount received from the customers or that he had himself abandoned the job. Hence, this issue is also decided in favour of the Workman and against the LID No.475/2016 Deepak Chauhan Vs. M/s. Ring Road Honda (Sugoi Motor Pvt. Ltd.) Page 31 of 38 Management.
Relief:
40. The Workman has prayed for his reinstatement with full back wages and continuity of service and all consequential benefits. The AR of Workman, while placing reliance upon case-law titled as Deepali Gundu Surwase Vs. Kranti Junior Adhyapak & Ors., 2013(10) SCC 324 has submitted that the Workman deserves to be reinstated with full back wages and continuity of service.
41. 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 LID No.475/2016 Deepak Chauhan Vs. M/s. Ring Road Honda (Sugoi Motor Pvt. Ltd.) Page 32 of 38 of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them."
42. The AR of Management, while placing reliance upon the judgment titled as Jagbir Singh Vs. Haryana State Agriculture Marketing Board and another (2009) 15 SCC 327, has argued that in cases of illegal termination, the Courts must apply their mind and reinstatement and payment of full back wages should not be granted automatically and some factors viz. whether the appointment was made in terms of statutory rules, delay in raising the industrial dispute, the period of appointment, availability of job, etc. should be considered while granting consequential relief.
43. He has further argued that the Workman in the present case had worked with the Management for 1 year and 3 months only and the Hon'ble Superior Courts have granted compensation instead of reinstatement in such kind of cases. He has placed reliance upon the following judgments: Dharamraj Nivrutti Kasture Vs. Chief Executive Officer and Anr., (2019) 11 SCC 289; Management of Hindu Educational Society Vs. Govt. of NCT of Delhi, 2009 (158) DLT 212; Rameshwar Dayal Vs. Presiding Officer, Labour Court & Anr., 2007(5) AD(Delhi) 138; Shivji Sharma Vs. Secretary Labour, 2015(4) AD(Delhi) 116; Sukhbir Singh Vs. LID No.475/2016 Deepak Chauhan Vs. M/s. Ring Road Honda (Sugoi Motor Pvt. Ltd.) Page 33 of 38 Delhi Transport Corporation, 2012(192) DLT 517; and Talwara Cooperative Credit & Service Society Ltd. Vs. Sushil Kumar, 2008(9) SCC 486. Though there is no dispute with respect to the proposition of law laid down in the above-said authorities, but every case has its own facts and circumstances and the ratio of law laid down in a particular authority is to be applied according to the peculiar facts and circumstances of that case. The Hon'ble Supreme Court has also held in Smt. Sulochana Devi Vs. DDA, 2014(2) PLR (Delhi) 7:
"The Apex Court had laid down in catena of judgments that while applying the ratio laid down in a case, the facts of the reiterated case in which such a proposition of law has been laid down, must also be correlated and seen in the light of the fact of the cases in which it is sought to be applied. The propositions of law which are laid down in different case cannot be treated like theorems or principles of mathematics and made applicable to the facts of the case in hand in an implied manner."
So far as the above-mentioned case-laws cited by the AR of Management are concerned, the same are distinguishable on the basis of facts and circumstances stated therein and therefore the same are not going to render any help to the Management.
LID No.475/2016 Deepak Chauhan Vs. M/s. Ring Road Honda (Sugoi Motor Pvt. Ltd.) Page 34 of 38
44. 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 had dealt with judgment cited by the Management i.e. Jagbir Singh Vs. Haryana State Agriculture Marketing Board (supra) and 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 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 LID No.475/2016 Deepak Chauhan Vs. M/s. Ring Road Honda (Sugoi Motor Pvt. Ltd.) Page 35 of 38 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/quasi-judicial 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. 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."
45. 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 LID No.475/2016 Deepak Chauhan Vs. M/s. Ring Road Honda (Sugoi Motor Pvt. Ltd.) Page 36 of 38 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 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."
46. In the present case, the Workman/WW-1 has specifically deposed in his affidavit of evidence that he was unemployed since the day of his illegal termination 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. But Management has failed to lead any such cogent evidence. There is no evidence from the side of Management regarding gainful employment of the Workman except a bald statement made by MW-1 in his affidavit of evidence LID No.475/2016 Deepak Chauhan Vs. M/s. Ring Road Honda (Sugoi Motor Pvt. Ltd.) Page 37 of 38 wherein he has stated that the Workman has been working for various companies even after November, 2014. But in his cross-examination, he has stated that the Management is not in possession of any documentary proof to show that the Workman is gainfully employed after November, 2014. Thus, the aforesaid statement is just a bald statement without any material to support the same. Not even the name of any such alleged company is also mentioned. Thus, it is clear that the Management has failed to prove that the Workman was gainfully employed after illegal termination of his employment on 27.11.2014.
47. 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.
48. 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 LID No.475/2016 Deepak Chauhan Vs. M/s. Ring Road Honda (Sugoi Motor Pvt. Ltd.) Page 38 of 38 with all other consequential benefits. Award is passed accordingly.
49. Copy of this Award be sent to the Labour Commissioner for publication.
Case file be consigned to the Record Room.
Digitally signed by NAVITA NAVITA (Announced on 27.01.2022) KUMARI KUMARI BAGHA Date: BAGHA 2022.01.27 17:14:19 +0530 (Navita Kumari Bagha) Presiding Officer, POLC-07 Rouse Avenue District Court, New Delhi LID No.475/2016
Deepak Chauhan Vs. M/s. Ring Road Honda (Sugoi Motor Pvt. Ltd.)