Delhi District Court
Vide Order No.F.24(55)/Dlc/E/09/2545 ... vs All India Deaf & Dumb Society As Ex.Ww1/1 ... on 28 February, 2017
IN THE COURT OF SHRI UMED SINGH GREWAL, PILOT
COURT/POLCXVII ROOM NO. 22 :KKD COURTS: DELHI
ID No. 1951/16 (Old ID 265/14/09)
Unique ID No.02402C0350672009
IN THE MATTER OF:
i. Smt. Munni Devi, W/o Sh. Mahabir Singh,
ii. Smt. Meena Devi, W/o Late Sh. Om Prakash,
iii. Smt. Sharda, W/o Sh. Gyan Singh,
iv. Smt. Vimla, W/o Late Sh. Jagdish Prasad &
v. Smt. Vidhata, D/o Sh. Budhiram,
Plot No. 4, 7, Institutional Area, Karkadi Mode,
Vikas Marg Extension, Delhi92
.............Workmen
Versus
M/s. All India Deaf and Dumb Society,
Plot No. 4 & 7, Institutional Area, Karkadi Mode,
Vikas Marg Extension, Delhi92
..............Management
DATE OF INSTITUTION : 19.11.2009.
DATE ON WHICH AWARD RESERVED : 23.02.2017.
DATE ON WHICH AWARD PASSED : 28.02.2017.
A W A R D :
1. Vide Order No.F.24(55)/DLC/E/09/2545 dated
03.11.09 issued by Government of NCT of Delhi, a reference was
sent to this Court with the following terms:
"1. Whether management has closed their
hostel and if so whether Smt. Munni Devi
ID No. 1951/16. 1/20
W/o Sh. Mahabir Singh, Smt. Meena Devi
W/o Late Sh. Om Prakash, Smt. Sharda W/o
Sh. Gyan Singh & Smt. Vimla W/o Late Sh.
Jagdish Prasad have received their full and
final payment and left their job of their own
or their services have been terminated by the
management illegally and/or unjustifiably
and if so to what sum of money as monetary
relief along with other consequential benefits
in terms of existing Laws/Govt. Notifications
and to what other relief are they entitled and
what directions are necessary in this
respect?"
2. "Whether termination of services of Smt.
Vidhata D/o Sh. Budhiram has been
terminated illegally and/or unjustifiably by
the management and if so, to what sum of
money as monetary relief alongwith other
consequential benefits in terms of existing
laws/Govt. Notifications and to what other
relief is she entitled and what directions are
necessary in this respect?"
2. Claimant's case is that she had joined the management
as Aya on 19.08.1993 at minimum wages fixed by Govt. of NCT of
Delhi from time to time. Her job was to cook food for children
staying in hostel and due to that reason, she was provided staff
quarter inside the school campus. The management stopped her
paying full wages from July, 1996 onwards. Since then, it was
making her nominal payment of Rs.100/ saying that she was under
ID No. 1951/16. 2/20
suspension and also the government had stopped grants to the
society and that full amount would be paid as and when grants were
given to the management by the government. She received a legal
notice dated 22.02.2006 from management in which a false story
had been cooked to the effect that her service had been terminated in
1996 and that she was occupying school property illegally. It is
mentioned in the last that she is unemployed since February, 2006
suggesting that her service was terminated in February, 2006 and
not on 01.08.1996.
3. Written statement is to the effect that management is
engaged in social, welfare and charitable work for assisting deaf and
dumbmutes children and their dependents. The claimant had
trespassed into its property for which it filed an eviction suit against
her. After filing of that suit, the claimant filed present case. She
was employed on 19.08.1993 and her service was terminated on
01.08.1996, but she filed the case after elapse of 14 years. The
hostel was closed in 1996 due to stoppage of grants from
government and hence, she was given full and final settlement
amount on 01.08.1996.
4. Following issues were framed on 03.07.2010:
1. Whether the claim is within limitation?
2. After receipt of entire dues from Ministry of Social Welfare,
ID No. 1951/16. 3/20
Govt. of India, whether workmen are entitled for relief
against the management? OPW
3. Whether the services of the workmen were illegally
terminated by the management on 01.08.96?
4. Whether the workman is entitled for relief as claimed.
5. In order to substantiate the case, claimant Munni Devi
tendered her affidavit in evidence as Ex.WW1/A mentioning all the
facts stated in statement of claim. She relied upon documents
marked in connected case bearing LIR No. 160/2009 titled as Smt.
Meena Devi Vs. All India Deaf & Dumb Society as Ex.WW1/1 to
Ex.WW1/4 i.e.
I. Ex.WW1/1 is copy of demand notice dated 02.03.2006 sent
by her and other workers to the management.
II. Ex.WW1/2 is copy of UPC receipt vide which demand notice
was sent to the management.
III. Ex.WW1/3 is copy of postal receipt vide which notice was
sent to the management.
IV. Ex.WW1/4 is copy of postal receipt vide which notice was
sent to the management
The claimants Smt. Vidhata, Smt. Vimla and Smt.
Sharda, who have settled the case with management, deposed as
WW2, WW3 and WW4 respectively.
ID No. 1951/16. 4/20
6. The management examined its authorized
representative Sh. B.C. Gupta as MW1 who repeated the contents of
written statement. He deposed that hostel facility was closed by the
management due to nonavailability of funds. The management had
proposed to pay claimant full and final amount, but she did not
agree and gave representations alongwith other workers directly to
the Government of India, Ministry of Welfare, for salary and other
dues. Under immense pressure from different concerns, the
Ministry of Welfare and Government of India, vide order No. 22
24(41)95HW II dated 27.12.96, sanctioned a sum of Rs.1,19,880/
to be disbursed amongst nine employees of the society.
Accordingly, the claimant was to be paid a sum of Rs.12,684.71
towards arrear and full and final payment of workers. That amount
was paid to her and after payment, nothing is left. He relied upon
following documents:
(i) Copy of memorandum dated 19.08.93 vide which claimant
Smt. Munni Devi was employed by the management is Mark
MW1/1.
(ii) Copy of termination letter dated 01.08.96 of claimant Munni
Devi is Mark MW1/2.
(iii) Copies of postal receipts as Mark MW1/3.
(iv) Copy of suit filed by the management is Mark MW1/4.
(v) Copy of Order No. 2224(41) 95HW II dated 27.12.96 is
Mark MW1/5.
(vi) Copy of letter No. F5(12)/9596/GTA/DSW/VOI.II/21856
ID No. 1951/16. 5/20
dated 03.06.97 is Mark MW1/6.
(vii) Copy of notice dated 01.08.96 for closure of hostel is Mark
MW1/7.
Issue No. 3:
7. The matter was settled between management and three
claimants namely Smt. Vidhata, Sharda and Smt. Vimla on
08.12.2016 in Rs.2,50,000/ each and settlement award for those
three claimants have already been passed on that day itself i.e. on
08.12.2016.
Claimant Smt. Meena Devi did not file statement of
claim. She did not appear in the witness box. So, No Claim Award
is passed against her. So, the case is only for claimant Munni Devi.
8. Ld. ARM argued that claimant was engaged by the
management as Aya to work in the hostel vide appointment letter
dated 19.08.93 Mark MW1/1. The hostel facility was closed due to
nonavailability of funds and hence, her service was terminated vide
letter Mark MW1/2 and an amount of Rs.11,364/ was proposed to
be given to her, but she did not agree and directly made
communication with the Central Government. Due to pressure
mounted by several groups, the Central Government, vide letter
Mark MW1/5, sanctioned a sum of Rs.1,19,880/ for payment of
wages and full and final amount to the claimant and other workers.
ID No. 1951/16. 6/20
Accordingly, a sum of Rs.12,684.71 was released to the claimant
vide letter Mark MW1/6. After collection of that amount, nothing is
due to the management. The management had made a vain attempt
in 1997 to take grant from Welfare Department of Government of
India, but the concerned department came to the conclusion vide
letter dated 17.02.1997 that the management had closed hostel
facility w.e.f. 01.04.96 and hence, did not grant any amount. He
further argued that after termination of service, the claimant and
other workers illegally occupied the hostel rooms of the
management. The management gave them legal notice dated
22.02.2006 for eviction. After receiving that notice, the present case
has been filed.
On the other hand, ld. ARW argued that management
had never closed hostel facility. There is a letter Mark W2 issued by
thethen Hostel Manager Ms. Suman Dondey dated 22.03.2001 vide
which Smt. Joshna, Munni Devi and other Ayas were again
employed to work in the mess of the hostel. He further relied upon
letter Mark W1 dated 22.01.99 issued by Ms. Suman Dondey to the
effect that Ms. Jyotsna was working with management since 1993
and was staying in hostel complex. He argued that Deputy
Secretary of Government of India had released a sum of
Rs.1,19,880/ vide letter Mark MW1/5 to pay salary to the claimant
and other workers. That amount was not released as full and final
settlement amount. He further relied upon Mark MW1/6 written by
ID No. 1951/16. 7/20
Planning Officer, (Social Welfare), Government of NCT of Delhi to
concerned SDM in which it is clearly mentioned that the said
amount was only for disbursement of salary to the employees of
hostel of the management.
9. It has been admitted by claimant in crossexamination
that management had closed its hostel facility in 1996. It becomes
clear from appointment letter Mark MW1/1 that claimant was
appointed as Aya to work in the hostel. It is also correct that the
management had applied to the Social Welfare Department,
Government of India for grants, but its request was rejected vide
letter dated 17.02.97 in which it is mentioned that management had
closed hostel facility since 01.04.1996. These letters unerringly
point towards the fact that management had closed hostel facility
w.e.f. 01.04.1996. But those documents have been duly countered
by the documents Mark W1 and Mark W2. Mark W2 dated
22.03.2001 has been addressed to coworker of the claimant namely
Smt. Vidhata. It is written on the letter head of the management.
The letter has been issued and signed by a lady namely Ms. Suman
Dondey who has been admitted by MW1 in crossexamination to be
an employee of the management at some point of time. It is
mentioned in that letter that Smt. Vidhata was being appointed as
Aya to the kitchen of the hostel w.e.f. 22.03.2001. She was to do
following works:
ID No. 1951/16. 8/20
(i) ...........................
(ii) Dudh sabji aur anya saman ka hisab rakhna.
(iii) ..........................
(iv) ..........................
(v) Gas Cylinder evam gas chulha ki surakhsa wyawastha
rakhna.
(vi) Chhatrawas ke bachcho ki evam Ayao ki hajari likhana.
(vii) Ayao ko kam batana aur unke kam par nigrani rakhna.
(viii) .................................
(ix) ...................................
(x) Chhatrawas sucharu rup se chalane ke lie awashyak sarv
kamkaj rakhna. Iski jimmedari ap ke upar saup di jati hai. 22
March 2001 se apka ohada Pramukh Aya hoga.
The letter has been signed by other coworkers namely
Vimla, Sharda, Meena Devi, Munni Devi and Joshna. The
designation of coworker Smt. Vidhada is mentioned as Pramukh
Aya. It means the other Ayas who had signed the letter were also
appointed as Ayas. It is true that original of Mark W2 was not
produced by the claimant. But it has been issued on the letter head
of the management. It has been signed and issued from the office of
Ms. Suman Dondey, who was an employee of the management at
some point of time, as admitted by MW1. After production of
photocopy, the onus had shifted to management to prove that the
ID No. 1951/16. 9/20
letter was not issued by it and in this respect, thethen official Ms.
Suman Dondey would have been the most competent witness. Ms.
Suman Dondey has been withheld by management and hence, an
adverse inference is drawn against it.
10. There is another letter Mark W1 issued by same Ms.
Suman Dondey on 22.01.1999 to Smt. Jyotsna in which it is
mentioned that Smt. Jyotsna was working with management since
1993 and that she was residing / staying in the school complex itself.
That letter shows that claimant was working with management even
on 22.01.1999. Mark W1 and Mark W2 have been issued and
signed by Ms. Sumann Dondey and the management is disowning
both these documents. It is quite surprising that appointment letter
Mark MW1/1 and termination letter Mark MW1/2 have also been
issued and signed by same Ms. Suman Dondey. But the
management is strongly relying upon them. In effect, Mark MW1/1,
Mark MW1/2, Mark W1 and Mark W2 have been issued by same
official of the management. So, the management cannot be allowed
to rely upon only those documents issued by that official which are
favouring it and to disown other documents issued by same official
which are going against it.
11. On the strength of Mark W1 and Mark W2, it is held
that either the service of the claimant was not terminated by the
ID No. 1951/16. 10/20
management on 01.08.1996 or she was reemployed shortly
thereafter. That conclusion finds support from the fact that
termination letter Mark MW1/2 does not bear the signature of the
claimant. It means that termination letter Mark MW1/2 was never
delivered to her.
12. Management's case is that it had given claimant full and
final settlement amount of Rs.12,684.71 after receipt of grant from
government. In this regard, it is not supported by the documents
produced by itself. Mark MW1/5 is the letter vide which grant was
released to the management by Government of India in which it is
crystal clearly mentioned in first paragraph that an amount of
Rs.1,19,880/ was released for disbursement of salary to the
employees of hostel of the management. It is mentioned in Mark
MW1/6 i.e. letter written by Planning Officer (Social Welfare),
Government of NCT of Delhi to thethen SDM that the said amount
was being released only for disbursement of salary to the employees
of the hostel of the management. These two letters conclusively
prove that the Central Government had released grant to the
management only for disbursement of salary to the claimant and
other workers in which the share of the claimant was Rs.12,684.71.
It has also been admitted by claimant in crossexamination that she
had received a sum of Rs.12,684/ from management but that sum
was only for wages and not for full and final settlement amount.
ID No. 1951/16. 11/20
13. Management's case is that when the service of the
claimant was terminated on 01.08.1996, she alongwith other Ayas
illegally encroached upon its hostel rooms in 1996 itself. Had the
claimant and other Ayas encroached upon the property of the
management in 1996, the management would have initiated eviction
process shortly thereafter, but it sent claimant and other Ayas legal
notice on 22.02.2006 and filed a civil suit against them in July,
2006. Had service of the claimant been terminated in 1996, the
management would have initiated eviction proceedings in 1996
itself and would have waited till 2006.
14. In view of above discussion, it is held that management
had not closed its hostel facility w.e.f. 01.04.1996. It is further held
that service of the claimant was not terminated on 01.08.1996 but in
February, 2006. No notice, notice pay and retrenchment
compensation was given to the claimant before terminating her
service. It was not a case of misconduct and hence, there was no
need of chargesheet and domestic enquiry. Termination of service
of claimant in that manner is totally in violation to the provisions of
Section 25F of the I.D. Act, 1947. This issue is decided in favour of
claimant and against management.
Issue No. 1:
ID No. 1951/16. 12/20
15. Ld. ARM argued that service of the claimant was
terminated on 01.08.1996, but she filed the present case only on
19.11.2009 i.e. after elapse of 13 years. Ld. ARW argued that
service of the claimant was terminated in 2006 and not in 1996.
Moreover, delay in filing the case cannot be ground to reject the
case.
16. It has already been observed in issue No. 3 that service
of the claimant was terminated in February, 2006 and not on
01.08.1996. The reference was received on 19.11.2009. Before
arrival of reference in the court, the claimant would have
approached the Labour Department at least six months before. It
means she might have approached the Labour Office in the middle
of 2009. Her service was terminated in February, 2006. So, there is
no much delay in filing the present case. Moreover, it was held by
Apex Court in Raghuveer Vs. General Manager, Haryana
Roadways, Hisar, Civil Appeal No. 8434/2014 decided on
03.09.2014 that the labour case cannot be dismissed only on the
ground of delay. At the most, the labour court can mould the relief.
This issue is decided in favour of claimant and against management.
Issue No. 2:
17. The claimant was employee of management and not of
ID No. 1951/16. 13/20
Ministry of Social Welfare, Government of India. Whatever is to be
given to the claimant, is to be given by management and not by the
said Ministry.
Issue No. 4:
18. Even if service of a workman has been terminated
illegally, that would not automatically lead to reinstatement and
100% back wages. In Nehru Yuva Kendra Sangathan Vs. Union
of India & Ors. 2000 IV AD (Delhi) 709, Hon'ble Delhi High Court
dealt with the question of reinstatement and back wages and
observed in paragraphs 27 and 28 as under :
"27. We find from the decision of the
Supreme Court rendered in the 1970s and
1980s that reinstatement with back wages
was the norm in cases where the termination
of the services of the workman was held
inoperative. The decisions rendered in the
1990s, including the decision of the
Constitution Bench in the Punjab Land
Development and Reclamation Corporation
Ltd., Chandigarh seem to suggest that
compensation in lieu of reinstatement and
back wages is now the norm. In any case,
since we are bound to follow the decision of
the Constitution Bench, we, therefore,
conclude that reinstatement is not the
inevitable consequence of quashing an order
of termination; compensation can be
awarded in lieu of reinstatement and back
ID No. 1951/16. 14/20
wages.
28. Considering the facts of this case, we
are persuaded to award compensation in lieu
of reinstatement and back wages to the
workman"
19. In Municipal Council, Sujanpur Vs. Surinder
Kumar 2006 LLR 662, Hon'ble Supreme Court observed that the
relief of reinstatement is not automatic but is in the discretion of the
court. In paragraph 16, it was observed as under :
"Apart from the aforementioned error of law,
in our considered opinion, the Labour Court
and consequently the High Court completely
misdirected themselves insofar as they failed
to take into consideration that relief to be
granted in terms of section 11A of the said
Act being discretionary in nature, a Labour
Court was required to consider the facts of
each case therefor. Only because relief by
way of reinstatement with full back wages
would be lawful, it would not mean that the
same would be granted automatically".
20. In Vinod Kumar & others vs Salwan Public School &
others WP(c)5820/2011 dt.17.11.2014 Hon,ble Justice V.
Kameshwar Rao has held as under:
11.Having considered the rival submissions
of the counsels for the parties, I do not find
any infirmity in the order of the Labour
ID No. 1951/16. 15/20
Court. It is a settled position of law that even
if termination has been held to be illegal,
reinstatement with full back wages is not to
be granted automatically. The Labour Court
is within its right to mould the relief by
granting a lumpsum compensation. In fact, I
note that the Labour Court has relied upon
three judgments propounding the law that the
Labour Court can mould a relief by granting
lump sum compensation; the Labour Court is
entitled to grant relief having regard to facts
and circumstances of each case.
12. Further, the Supreme Court in the
following judgments held as under:
(a) In the matter reported as Jaipur
Development Authority v. Ramsahai, (2006)
11 SCC 684, the court has stated:
"However, even assuming that there had
been a violation of Sections 25G and 25H of
the Act, but, the same by itself, in our opinion,
would not mean that the Labour Court should
have passed an award of reinstatement with
entire back wages. This Court time and again
has held that the jurisdiction under Section
11A must be exercised judiciously. The
workman must be employed by State within
the meaning of Article 12 of the Constitution
of India, having regard to the doctrine of
public employment. It is also required to
recruit employees in terms of the provisions
of the rules for recruitment framed by it. The
respondent had not regularly served the
appellant. The job was not of perennial nature. There was nothing to show that he, when his services were terminated any person ID No. 1951/16. 16/20 who was junior to him in the same category, had been retained. His services were dispensed with as early as in 1987. It would not be proper to direct his reinstatement with back wages. We, therefore, are of the opinion that interest of justice would be subserved if instead and in place of reinstatement of his services, a sum of Rs 75,000 is awarded to the respondent by way of compensation as has been done by this Court in a number of its judgments."
(b) In the matter reported as Nagar Mahapalika v. State of U.P., (2006) 5 SCC 127, the court has stated:
"23. Noncompliance with the provisions of Section 6N of the U.P. Industrial Disputes Act, although, may lead to the grant of a relief of reinstatement with full back wages and continuity of service in favour of the retrenched workmen, the same would not mean that such a relief is to be granted automatically or as a matter of course. 25 .....The appellant herein has clearly stated that the appointments of the respondents have been made in violation of the provisions of the Adhiniyam. An appointment made in violation of the provisions of the Adhiniyam is void. The same, however, although would not mean that the provisions of the Industrial Disputes Act are not required to be taken into consideration for the purpose of determination of the question as to whether the termination of workmen from services is legal or not but the same should have to be ID No. 1951/16. 17/20 considered to be an important factor in the matter of grant of relief. The Municipal Corporation deals with public money. Appointments of the respondents were made for carrying out the work of assessment. Such assessments are done periodically. Their services, thus, should not have been directed to be continued despite the requirements therefor having come to an end. It, therefore, in our considered view, is not a case where the relief of reinstatement should have been granted."
(c) In the matter reported as Talwara Coop. Credit and Service Society Ltd. v. Sushil Kumar, (2008) 9 SCC 486, the court has stated:
"8. Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section 11A of the Industrial Disputes Act, 1947 are required to strike a balance in a situation of this nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment viz. whether the appointment had been made in accordance with the statutory rules so far as a public sector undertaking is concerned, etc., should be taken into consideration."
(d) In the matter reported as Jagbir Singh v. Haryana State Agriculture Mktg. Board, (2009) 15 SCC 327, the court has stated :
"7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an ID No. 1951/16. 18/20 employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. ...
14. An order of retrenchment passed in violation of Section 25F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee."
21. It has been deposed by claimant that she was unemployed since February, 2006 despite her best effort. She was working as an Aya with the management. In that capacity, she had gained an experience of about 13 years. Had she tried seriously, she would have definitely got job of equal status and salary. Her deposition that she is jobless since 2006 is general and vague. Her service was terminated about 11 years ago. Taking into account all these facts, relief of reinstatement is totally ruled out.
ID No. 1951/16. 19/2022. The claimant had worked with the management from 1993 to 2006 i.e. for long 13 years. From 1993 to 1996, her salary was Rs.500/ per month. Thereafter, the management used to pay her only nominal amount. Taking into account all these facts, a lumpsum compensation of Rs.3,25,000/ (Rupees Three Lacs Twenty Five Thousands Only) is granted to the claimant. The management is directed to pay the said amount to her within a month from the date of publication of the award failing, which it shall be liable to pay interest @ 9 per cent per annum on it from today till its realization. Reference is answered accordingly. Award is passed accordingly.
23. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication. File be consigned to record room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 28.02.2017. PILOT COURT/POLCXVII KKD COURT, DELHI ID No. 1951/16. 20/20