IN THE COURT OF SH. SANJEEV KUMAR ADDL. DISTRICT & S ESSIONS JUDGE/ PRESIDING OFFICE R LABOUR COURT KARKARDOOMA COURTS, DELHI. DID NO. 143/10 (Old DID No.37/10) IN THE MATTER BETWEEN: Sh. [ENTITY] S/o Mohd. Hafiz C/o Delhi State Kamgar Union (Regd.) Balmukund Khand (Near Bus Stop) Giri Nagar, New Delhi19 The workman AND (I) M/s Coach Classic D17, DSIDC SHEDS Scheme 2, Okhla PhaseII New Delhi110020 (II) M/s Hardeep Enterprises B176, Okhla PhaseI New Delhi110020 The management Date of Institution :29.01.2010 Date of Award :04.03.2014 A W A R D DID No. 143/10 [ENTITY] Vs. M/s Coach [ENTITY] Page No. 1 out of 17 1. This award will dispose of statement of claim filed by the workman directly in the Labour Court on 29.01.2010. 2. The brief facts as stated in claim petition that the workman was working with the Management No.1 since June 2004 on the post of 'Stitcher' and his last drawn salary was Rs.5,400/ per month. The Management No.1 engaged petty contractors including Management No.2. The Management No.1 was not issuing him pay slips, ESI Card, etc. instead, the Management No.2 used to issue ESI Cards to the workman showing his date of employment as 01.04.2008 despite of the fact that he had been working with management No.1 in its premises continuously since June 2004. When he reached at the premises of Management No.1 on 27.05.2004 to perform his duties he was physically prevented to perform his duties besides this his wages for the month of May, 2009 were not paid to him. The act of preventing workman to perform his duties amounts to denial of his duties and illegal retrenchment. He has not been in employment elsewhere. The workman prayed for passing an award for his reinstatement in service with full back wages. 3. Initially, no one appeared on behalf of DID No. 143/10 [ENTITY] Vs. M/s Coach [ENTITY] Page No. 2 out of 17 respondent/management no.1 sides, hence, an exparte award was
passed by award dt.10.12.10 in favour of workman whereby workman was given reinstatement with 50% back wages, thereafter, an application dt. 23.05.11 filed by management no.1 for setting aside exparte order dt.01.11.10 and exparte award dt. 10.12.10. The said application was allowed vide order dt.02.02.12. Thereafter, the written statement filed by the respondent/management no.1 the preliminary objection taken that the workman has worked with management up to March, 2008 and thereafter left the job of his own due to closure of business of answering management and the management never terminated the services of the claimant. The claimant had also not completed 240 days in one preceding year prior to his alleged termination. On merit all contents of claim petitioner were denied. It is denied that no legal facilities was provided to the claimant. Further it is stated that since the management was a small concern and having less than 10 employees, therefore, ESI & PF was not applicable upon the management no.1. Further it is denied that the management used to engage contractor and the contractor used to provide the ESI card to the employees of answering management. However, it DID No. 143/10 [ENTITY] Vs. M/s Coach [ENTITY] Page No. 3 out of 17 is admitted that the claimant worked with management up to March, 2008 and management closed down its business in Delhi in April, 2008, so the question of no payment of wages for the month of May, 2009 does not arise. Further it is denied that the claimant approached to the management for reporting duty on 27.05.09 does not exists as management was closed in April, 2008.
4. After completion of the pleading of both parties, vide order dated 09.4.12, the following issues were framed:
1. Whether the workman has left the service of his own due to the closure of business of the management No.1?
2. Whether the workman has completed 240 days in the management in year preceedings?
3. Whether the claim filed by the claimant is barred by limitation and no Industrial Dispute is maintainable against closure of the management?
4. Whether the services of the workman is illegally and/or unjustifiably terminated by the management and if so to what effect.
5. And then again on 21.11.12 following issues were framed:
1. Whether the workman Vol. absented himself from the service due to the closure of the business of management?
2. Whether the workman has completed 240 days in the service with the management in the preceding year to the alleged date DID No. 143/10 [ENTITY] Vs. M/s Coach [ENTITY] Page No. 4 out of 17 of termination.
3. Whether the unit of the management has already been closed w.e.f. March, 2008?
4. Whether the service of the workman is terminated illegally and/or unjustifiably by the management and if yes, to its effect?
6. In order to prove his claim, workman examined himself in evidence through an affidavit Ex.WW1/A and also relied upon documents Ex.WW1/1 to Ex.WW1/8. The witness was cross examined at length by Ld. ARs for both management.
7. In order to prove its claim management no.1 examined MW1 [ENTITY], Power of Attorney Holder (witness for management no.1) by way of affidavit Ex.MW1/A and also relied upon documents which are exhibited as Ex.MW1X and Ex.MW1/1 (10 pages colly.). MW2 [ENTITY], Insurance Inspector, ESI department was also summoned alongwith documents i.e. A proprietorship concern of Mr. [ENTITY] Ex.MW2/1, copy of ESI card issued by the corporation to the claimant [ENTITY] regarding employment with Ms. Harshdeep International Ex.MW1/3. The witnesses were cross examined by AR for workman.
DID No. 143/10 [ENTITY] Vs. M/s Coach [ENTITY] Page No. 5 out of 17
8. After completion of evidence of both parties, I have heard the arguments of Ld. ARs for both parties and gone through the material on record.
9. Though issues frame on both the dates are almost similar except issue no.3 of issue framed on 09.04.2012.which is infact additional issue because issue no.3 of issue dt .21.11.12 is covered in issue no1 of issue dt.09.04.2012 hence, in these circumstances, I take up the issue famed on 09.04.2012 .
ISSUE WISE FINDINGS ARE AS UNDER ISSUE NO.1 Whether the workman has left the service of his own due to the closure of business of the management No.1?
10. Since the management no.1 has admitted in written statement that workman was its employee therefor onus to prove this issue is upon the management no.1 to proved that its has closed its business in April, 2008 and thereafter workman remained absent. The management examined MW1 [ENTITY] and MW2 [ENTITY], Insurance inspector. MW2 [ENTITY] in his evidence by way of affidavit has deposed that the workman was working DID No. 143/10 [ENTITY] Vs. M/s Coach [ENTITY] Page No. 6 out of 17 with management till March, 2008 and the workman left the job with management no.1 in the month of March, 2008 due to closure of business of management no.1. In his cross examination, he admitted that no information was given to any department with regard to the closure of management's business. In these circumstances, The management no.1 has failed to prove any documentary evidence except self statement of MW1/1 to prove that management was closed in April, 2008 and management also failed to prove that the workman left service due to closure of business of management no.1 hence, both the issue 1 is decided in favour of workman.
ISSUE No.2 Whether the workman has completed 240 days in the management in year preceedings
11. The management in written statement has admitted that the workman has worked with management no.1 till March, 2008 and thereafter, he voluntarily left the job. The management DID No. 143/10 [ENTITY] Vs. M/s Coach [ENTITY] Page No. 7 out of 17 has never transferred to claimant to any concern at any point of time and it might be the claimant who after leaving job with the respondent no.1 in March, 2008. Since management has not given any date when the workman has joined the management no.1. In the claim petition as well as testimony of workman it is stated that workman was working with management no.1 since June 2004. There is no denial of the said fact . Hence it remained undisputed that workman was working with M1 Since June 2004. It is the case of management as set out in written statement that workman worked till March, 2008 with management no.1 thereafter he left job from april 2008 as management no.1 was closed. Now it is to be seen whether the workman has left the job of management no.1 or not.
12. The workman in his claim petition has stated that the management no.1 engaged petty contractors and these petty contractors used to issue ESI card to workman and one such petty contractor i.e. management no.2 herein issue ESI card to the workman showing his date of employment as 1st April, 2008. Though the workman was working continuously since June, 2004 at the premises of management no.1 but no document qua his work DID No. 143/10 [ENTITY] Vs. M/s Coach [ENTITY] Page No. 8 out of 17 with the management no.1 was issued to him despite his repeated requests. On 27.05.09 when the worker reached to perform his duties at the premises of the management no.1, he was physically prevented to enter into premises and thus his services amount to termination on 27.05.09. similar fact has been deposed by the workman in his evidence through affidavit Ex.WW1/A. In his cross examination workman has denied that the he has not worked with management no.1 after March, 2008 and he left the job and joined with management no.2 for better employment. The workman has proved document Ex.WW1/5 i.e. voucher, however, workman has not placed on record any documents to prove that he is being working with management no.1 after March, 2008.
13. On the other hand management through the testimony of MW2 [ENTITY] has proved on record the ESI Form5 regarding employment of workman with M/s Hardeep Enterprises B176/2, Okhla PhaseI, New Delhi20 which is a proprietorship concern of Ms. [ENTITY] which is Ex.MW2/1 as per which workman is employed with management from April, 2005 to September, 2005. The management itself has admitted that the workman worked with management no.1 till March, 2008, hence it DID No. 143/10 [ENTITY] Vs. M/s Coach [ENTITY] Page No. 9 out of 17 is proved on record that the workman was wrongly shown with management no.2 in ESI record. As stated above Management no.1 has failed to prove that the workman left job in March, 2008 due to closure of management no.1. Hence, I do not find any ground to disbelieve the testimony of workman that he worked with management till 27.05.09 when he was not allowed by management no.1 to join on duty working. I held that workman has been able to proved that he worked continuously with the management from June 2004 till 27.05.2009 hence he worked with management no.1 more than 240 days in one preceding year before his termination. Accordingly, this issue no.2 is also decided in favour of workman.
ISSUE No 3 Whether the unit of the management has already been closed w.e.f. March, 2008?
13. In view of findings on the issue No.1, 2 & 4, I held that the workman never left the services, and he was not allowed to join duty on 29.05.2009 hence his services were illegally terminated by the management no.1. Management no1 has failed to proved that workman was working with any other management. Since, this DID No. 143/10 [ENTITY] Vs. M/s Coach [ENTITY] Page No. 10 out of 17 claim has been filed by workman on 29.01.10, the workman was terminated on 29.05.2009. The claim has been filed within one year from his date of termination which is requirement of [SECTION] of the [ACT], hence the petition is not barred by limitation act. Accordingly these issues is decided against management.
Issue no.4 Whether the service of the workman is terminated illegally and/or unjustifiably by the management and if yes, to its effect?
13. In view of finding of finding of issue no.1 I held that workman was not allowed to join duty by management no.1 on 29.05.2009 and thus he was terminated from services illegally . Issus no.1 is decided accordingly.
RELIEF
14. The workman was deployed since June, 2004 on the monthly salary of Rs. 5400/ per month and his services were terminated on 27.05.09 without any notice or retrenchment compensation. The managements document Ex.MW1/1 shows that the workman has worked continuously with the management for more than five year. DID No. 143/10 [ENTITY] Vs. M/s Coach [ENTITY] Page No. 11 out of 17 The workman as continuously served to the management more than 240 days in one calender year. As per the contentions of the workman that he has served the management from 2004 to 2009. The salary of the workman was drawn in his bank account. However, the workman has not proved through any documentary evidence that he sincerely searched for job or that he is not a gainful employee. He has not filed any document to show that he has searched for employment. He has not enrolled himself in any employment exchange nor shown any document to this effect. Therefore, the question of payment of back wages does not arise. This view is also strengthen by judgment of "[PRECEDENT] where in Supreme Court while rely upon various judgements of Supreme Court held compensation in lieu of reinstatement or back wages would be appropriate. The relevant para of judgement is reproduced as below: "8. In the case of [PRECEDENT] this Court considered the matter thus :
"2. [PRECEDENT].
DID No. 143/10 [ENTITY] Vs. M/s Coach [ENTITY] Page No. 12 out of 17 "21. The question, which, however, falls for our consideration is as to whether the Labour Court was justified in awarding reinstatement of the appellants in service.
22. Keeping in view the period during which the services were rendered by the respondent (sic appellants); the fact that the respondent had stopped its operation of bee farming, and the sen/ices of the appellants were terminated in December 1996, we are of the opinion that it is not a fit case where the appellants could have been directed to be reinstated in service.
23. Indisputably, the Industrial Court, exercises a discretionary jurisdiction, but such discretion is required to be exercised judiciously. Relevant factors therefore were required to be taken into consideration; the nature of appointment, the period of appointment, the availability of the job, etc. should weigh with the court for determination of such an issue.
24. This Court in a large number of decisions opined that payment of adequate amount of compensation in place of a direction to be reinstated in service in cases of this nature would subserve the ends of justice. (See [PRECEDENT]), [PRECEDENT] [ENTITY] Vs. M/s Coach [ENTITY] Page No. 13 out of 17 [PRECEDENT] and Uttaranchal Forest Development Corpn. v. M.C. Joshi [(2007) 9 SCC 353] : (2007 AIR SCW 7305
25. Having regard to the facts and circumstances of this case, we are of the opinion that payment of a sum of Rs. 1,00,000 to each of the appellants, would meet the ends of justice. This appeal is allowed to the aforementioned extent. In the facts and circumstances of this case, there shall be no order as to costs."
9. The aforereferred two decisions of this Court and few more decisions were considered by us in the case of [PRECEDENT] albeit in the context of retrenchment of a daily wager in violation of [SECTION] of [ACT] who had worked for more than 240 days in a year and we observed thus :
3. [PRECEDENT].
"7. It is true that earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in long line of DID No. 143/10 [ENTITY] Vs. M/s Coach [ENTITY] Page No. 14 out of 17 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 to the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice."
10.It is not necessary to multiply the decisions of this Court wherein award of compensation in lieu of reinstatement and back wages has been held to be adequate and in the interest of justice.
11.In light of the aforesaid legal position, the view of the High Court that monetary compensation in lieu of reinstatement of the workman would be proper cannot be said to be unjustified."
In case titled as [PRECEDENT] it was held that:
" illegality of dismissal/termination from service of a workman did not in itself ipso facto result in his reinstatement. The long history of litigation and acrimony between the parties leading to trust deficit in this case was considered by the Labour Court and it had rightly concluded that reinstatement might not be appropriate remedy will justified award of DID No. 143/10 [ENTITY] Vs. M/s Coach [ENTITY] Page No. 15 out of 17 compensation in lieu of the reinstatement of the workman."
14. In another judgment of [ENTITY] vide 2012 LLE 317 Employers in relation to the [PRECEDENT] vs. Their workmen represented by the Secretary, [ENTITY] Colliery Mazdoor Sangh, Hazaribagh, it was held that that : Compensation instead of reinstatement would be appropriate to the workmen who were engaged only as casual, hence Division Bench allowed compensation of Rs.30,000 each in addition to the last drawn wages received by them as provided by [SECTION] of the [ACT].
15. In another case [PRECEDENT], the Hon'ble Allahabad High Court has held that:
"noncompliance of provisions of [SECTION] of the [ACT] providing for retrenchment compensation and one month's notice at the time of termination is not a rule of thumb to grant reinstatement with back wages since the compensation of Rs.50,000/ in lieu thereof would be appropriate relief hence the Award of the Labour Court granting reinstatement is set aside."
16. In view of the judgment cited above, and considerig the fact that since workman has worker for a short period of DID No. 143/10 [ENTITY] Vs. M/s Coach [ENTITY] Page No. 16 out of 17 approximately 4 years workman is awarded a compensation of Rs. 75,000/ (Seventy Five Thousand). Accordingly, to meet in the end of justice, the workman be awarded Rs.75, 000/ as retrenchment compensation in lieu of reinstatement in service. Claim is answered accordingly.
17. Copy of award be sent to the Secretary Labour, Govt. of NCT, Delhi for publication of the award. The claim is answered accordingly. Copy of award be also sent to Ld. Senior Civil Judge having jurisdiction, in compliance of provisions of [SECTION] of the Act as amended by [ACT], which runs as under: "(10) The Labour Court or Tribunal or National Tribunal, as the case may be, shall transmit any award, order or settlement to Civil Court having jurisdiction and such Civil Court shall execute the award, order or settlement as if it were a decree passed by it."
The award be also sent to server (www.delhicourts.nic.in). File be consigned to Record Room. Announced in the Open Court on this 4th March 2014 ([ENTITY]) Presiding Officer, Labour Court, Karkardooma Courts, Delhi.
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