IN THE COURT OF SH. SATINDER KUMAR GAUTAM ADDL. DISTRICT & SESSIONS JUDGE PRESIDING OFFICER, LABOUR COURT KARKARDOOMA CO URTS, DELHI. DID No. 174/2011 INDUSTRIAL DISPUTE BETWEEN : Sh. [ENTITY] S/o Sh. [ENTITY], R/o 10/1, Nehru Nagar, New Delhi110065 [ENTITY] VERSUS 1.
M/s [ENTITY]
H. O.:87, Ministry Industrial Complex, M.E.D.C. CORSSS RoadA, Andheri (E), Mumbai400093.
Through its Chairman/Managing Director
2. Mr. [ENTITY] C.E.O. B3, Ashok Bhawan, Building No.93, Nehru Place, New Delhi110019 Management Date of Institution : 26.04.2010 Date of award : 09.07.2013 AWARD DID No.174/11 [ENTITY] Vs. [ENTITY] 1 page our of 11 The claim have been directly filed by [ENTITY] claimant with the submission that he was working as Engineer vide appointment letter dt. 28.04.2004 on the monthly gross salary of Rs. 14, 686/. The work and performance of the workman with the management is utmost at the desire and satisfaction of the management and there is no complaint whatsoever against him. Mr. [ENTITY] has joined the management as Chief Executive Officer at Nehru Place where the workman was posted. The workman is performing his duty deligently, efficiently but the [ENTITY] (C.E.O.) keeping hostile attitude towards the workman with the reason that the workman was very sincere to perform his work which was not appreciable. Mr. [ENTITY] on two or three occasion used very rude language against workman without any cogent reason. Mr. [ENTITY], intentionally and deliberately in order to humiliate and demoralized the workman have been using the rude behaviour. On 06.11.09, when the workman has reached to join duty. He was served with the termination letter by Mr. [ENTITY]. He asked the reason for termination, Mr. [ENTITY] has started laughing and misbehaving with the workman. The workman made several request but Mr. [ENTITY] has not simpathised with him. The workman after terminating from the management has suffered great mental shock and agony. The act of the management is arbitrary illegal and unlawfull. The services of workman is terminated in arbitrarily manner without any cause and justification.
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2. The workman served a legal demand notice dt. 12.11.09, same was duly replied by the management vide dt.25.11.09 rejecting the request of the workman on vague grounds. The removal of the workman is without any inquiry or prior notice etc. The workman is unemployed from the date of termination and he is ready to join the duty with the management. The workman has taken personal loan but because of no job, he is unable to pay the loan installment. Hence prayed to direct the workman to reinstate the workman for service with all other benefits.
3. The management filed the written statement to the claim of the workman with the submission that the claim is not maintainable as filed by the workman in most misconceived manner, and with malafide intention and motives. The workman cheated the management on various times for his illegal acts. The management had warned the workman but workman has not ceased this malpractice of overcharging and misleading the management's clients and lastly when one more written complaint was received dt. 05.10.09 by the management against the workman as workman has misguided and cheated with the management as well as and taken a sum of Rs.500/ for minor fault and for the said repaired bill has not been issued to customer. The amount charged from the customer has not been deposited in the company account. The coworker [ENTITY] told the all factual positions that he and present workman manipulated the money charged from the customers. The workman falls in supervisory category and management lost confidence in worker, DID No.174/11 [ENTITY] Vs. [ENTITY] 3 page our of 11 therefore with heavy heart retrenchment notice under [SECTION] of the [ACT] was issued to the workman either workman give his apology in writing otherwise workman services in the management shall be terminated but after receiving the retrenchment notice in front of other employee, workman did not tender his apology with the management and therefore on dt.5.11.09, management terminated the services of the workman as per retrenchment notice dt. 06.10.09. The complaint against the workman vide letter dt.30.09.09 by M/s Sankalp Peripherals for overcharging Rs.150/ for repair of SMPS which was under warranty without any money receipt by the workman. The complaint against the workman vide letter dt. 05.10.09 by M/s S.S. Informatics who had brought a lap top to get the repaired and workman has overcharged Rs. 500/. One complaint against workman vide letter dt. 10.10.09 by Mr. [ENTITY] and and fourth complaint dt. 24.10.09 by M/s Basant Enterprises for overcharging by the workman. He proved that the workman was never honest or sincere with the service of management. The workman was overcharging and misleading the the customer of the management. He has not deposited amount charged from the customer in the management's account which has been admitted by the other co worker also that manipulation has been done by the workman alongwith others also but other worker has tendered their apology before the management but workman never tendered. Mr. [ENTITY] has never shown any hostile, rude attitude as alleged. After receiving several DID No.174/11 [ENTITY] Vs. [ENTITY] 4 page our of 11 complaints against the workman. The management has lost confidence upon workman, therefore, after conducting enquiry, issued a retrenchment notice dt. 06.10.09, and discharged from the services on 05.11.2009. the serious charges against the workman has been proved and therefore, workman cannot be taken back on the muster roll of the management. The reply of the legal notice dt. 12.11.09 has been sent by the management and there is no illegalities in removal of the workman. The claim filed by claimant is false and vehemently denied and same is liable to be dismissed with heavy cost.
4. [ENTITY] to the written statement filed by the workman denying the contentions raised in the written statement as well as repeated the context of the claim petition and prayer too.
5. From the pleading of the parties, vide dt. 07.02.2011, the following issues were framed:
1. Whether the services of the workman were terminated illegally by the management?
2. Relief.
6. No other issues were arise or framed. After framing of issues, both parties were directed to lead evidence. In order to prove his contentions made in the statement of claim/rejoinder, the workman tendered his affidavit Ex.WW1/A and also relied upon document Ex.WW1/1 to Ex.WW1/10B.
7. The management also examined three witnesses MW1 DID No.174/11 [ENTITY] Vs. [ENTITY] 5 page our of 11 [ENTITY], C.E.O., MW2 [ENTITY], Proprietor and MW3 [ENTITY], Assistant Engineer and also relied upon documents Ex.MW1/1 to Ex.MW1/7.
ISSUE WISE FINDINGS ARE AS UNDER Issue No.1 Whether the services of the workman were terminated illegally by the management?
8. Parties have lead their evidence. The workman has contended that he has worked for one year with M/s Adcom. the advantage computer at Nehru Place sincerely without any complaint. No show cause notice have ever been issued nor the workman was removed from the job. The management has made counter allegations while alleging that they do not have trust on the workman as he has mislead, deceived to the management and committed misconduct with management. There were several complaints received from the customers that he has overcharged and manipulated money for his own. There were other coworker who involved in the cheating, malpractice with the present workman. They have been tendered their apology as such after giving warning, they started working again honestly but the present workman due to adamant attitude has not bent upon to tender the apology. The due opportunity was given to the workman.
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9. The management has given sufficient opportunity and conducted the enquiry and after found him guilty, his service was terminated. Mr. [ENTITY], in his cross examination have stated that he has set up an enquiry against the workman [ENTITY] but no such record is placed on record of this file as no such record is available with them. The out come of the enquiry which set up by him was only verbal and oral and the same was not in any writing process. It is matter of fact that no legal enquiry was conducted by the management. The workman is a permanent employee of the management and have been served with the management from last more than five years. There was no complaint whatsoever on record filed by the management.
10. MW2 [ENTITY], Proprietor through affidavit has stated that the workman have charged Rs. 500/ for repair of the laptop which was under warranty and when he asked to give the bill of the repair, the workman asked Rs.2,000/ for the repair. He shocked to learnt this but to money he paid Rs.500/ to [ENTITY], claimant. He further shocked to learnt from the management that the said amount of Rs.500/ charged by the workman from him was never been deposited in the company account for this misguiding and over charging, he made a complaint to Branch Chief Executive Officer of the management for taking action against the workman. The said complaint is dt. 5.10.09 vide Ex.MW2/1. MW3 [ENTITY], Assistant Engineer of the management have stated on oath through affidavit that he alongwith DID No.174/11 [ENTITY] Vs. [ENTITY] 7 page our of 11 worker [ENTITY], present workman and [ENTITY] manipulated the service charges received by us and over charged the various customers of the management. The amount was not deposited with the management. On 05.11.09, when the management was came to know about their illegal act and regretted the same and tender the apology letter dt.05.11.09 Ex.MW3/1. It is matter of fact that no enquiry officer was appointed nor any regular enquiry was conducted though the preliminarily enquiry was conducted within the department itself for the misconduct and involve in alleged corrupt practice by the workman, as such the service was being terminated. No chargesheet or show cause notice was issued to the workman nor any domestice enquiry was conducted which is violating of the principle of natural justice eye of law.
The Supreme Court of India in case [PRECEDENT] wherein it is held that : " It is now well settled thatthe services of a permanent employee, whether employed by the government, or got. Company or govt.
instrumentality , cannot be terminated abruptly and arbitrarily, either by giving him a month's or three month's notice or pay in lieu thereof "
It is also held in [PRECEDENT] wherein it is held that : " any provision in the regulation enabling DID No.174/11 [ENTITY] Vs. [ENTITY] 8 page our of 11 management to terminate the services of a permanent employee by giving three months notice or pay in lieu thereof, would be bad as violative or [SECTION] of the [ACT]."
11. Therefore, in view of the facts & circumstances and the judgment cited above the termination of the services of workman are held to be illegal and unjustified. Accordingly, this issue is decided infavour of workman.
RELIEF
12. In view of the findings on issue no.1. Since the termination is held to be illegal and unjustified, the workman is entitled for reinstatement in service. The contention of management that the workman is involve in illegal activities of misconduct, cheating with management on various time with illegal act despite warning and the oral enquiry. The coworker were tendered apology. The management has categorically stated that they have lost confidence in the workman as such removal from service. There is no question of reinstatement in service as the management has lost confidence. It will better come to award a lumpsum compensation instead of reinstatement. It is matter of fact that the workman is an engineer and well experienced. He can get alternative job but he never disclosed that he searched any employment. He has not enrolled in any employment exchange for reemployment. DID No.174/11 [ENTITY] Vs. [ENTITY] 9 page our of 11
13. Hon'ble Delhi High Court in case of [PRECEDENT] held that:
"The workmen have established that there has no termination by the management and that they were refused duty though they presented themselves hence it has been a clear case of illegal termination."
In another judgment [CASE NUMBER] & Anr.Vs. [ENTITY] & Ors. Hon'ble High Court of Chhattishgarh has held that:
" Compensation of Rs.1 lakh, in lieu of reinstatement and backwages will be appropriate relief when the services of the workman were terminated without payment of retrenchment compensation and one month's notice or wages in lieu thereof."
In case of [PRECEDENT] held that:
" Even when the termination of a workman is held to be illegal, the relief of reinstatement with backwages is not automatic since the courts can grant compensation in lieu of reinstatement and back wages.
14. Accordingly, in view of the aforesaid discussion, facts and circumstances, it is matter of fact that the management lost confidence on workman as he cause wrong full loss to the management. As such the question of reinstatement in service does not full fill the purpose, therefore, the workman [ENTITY] S/o Sh. [ENTITY] be awarded Rs.1,00,000/ ( One lac only) as lump sum compensation in lieu of DID No.174/11 [ENTITY] Vs. [ENTITY] 10 page our of 11 reinstatement and back wages. The Claim is answered accordingly.
15. Copy of award be sent to the Secretary Labour, Govt. of NCT, Delhi for publication of the award. One copy of the award be also sent to Civil Court for execution in accordance as per rules. The award be also sent to server (www.delhicourts.nic.in). File be consigned to Record Room.
Announced in Open Court on this 9th July, 2013 ([ENTITY]) Additional District & Sessions Judge Presiding Officer, Labour Court, Karkardooma Courts, Delhi.
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