IN THE COURT OF SHRI [ENTITY] : POLC : V : KARKARDOOMA: DELHI. Old ID NO. 849/00 New ID NO. 30/06 BETWEEN The Management of M/s. Anksama International, 332, Sant Nagar, East of Kailash, New Delhi-65. AND The Workman Sh. [ENTITY] C/o Rashtriya Mazdoor Kisan Ekta Union, C-330, Lal Bagh, G.T. Karnal Road, Azadpur, Delhi-33. DATE OF REFERENCE : 16.06.00 DATE OF CONCLUDING ARGUMENTS : 22.12.06 DATE OF AWARD : 22.12.06 AWARD The Secretary (Labour) Govt. of N.C.T. of Delhi has referred the Industrial Dispute for adjudication to this Court vide [CASE NUMBER] dated 16.06.00 in the following terms of reference : 'Whether the services of Sh. [ENTITY] have been terminated illegally and/or unjustifiably by the management and if so, to what relief is he entitled and what directions are necessary in this respect?' 2. Precisely, the case of the workman is that he was in the employment of management since November 1993 as a 'Purchase Clerk' and his last drawn wages were Rs.4000/- per month. According to him he was performing his duties with due diligence and honestly. 3. But for raising demand for legal benefits his services were terminated by the management on 31.10.98 without assigning any valid reason. It is claimed that since the services of workman were terminated illegally, he is entitled to be reinstated with continuity in service and full back wages. 3. The management contested the claim of claimant asserting that the claimant is not a workman within the meaning of [SECTION] [ACT] as he was appointed by the management as a Purchase Officer and discharging the duties which were supervisory and managerial in nature. It is further stated that the claimant unauthorisedly absent from his duty since 06.08.1998. On merits the management has denied all the averments made by the workman that he was its regular employee. Thus it was prayed that the claim of the workman is false and is liable to be dismissed. 4. In rejoinder the workman re-asserted his allegations of claim and controverted the case of management. 5. Upon the pleadings of parties following issues for trial were framed: (1) Whether the claimant is a workman as defined by [SECTION] of [ACT]? (2) Whether the claimant himself abandoned his job by remaining absent continuously w.e.f. 6.8.98 unauthorisedly and by not reporting for duty despite letters written to him? (3) As per terms of reference. 6. To prove its case the workman has examined himself as WW-1 and relied upon documents Ex.WW1/1. On the other hand management has examined Mr. [ENTITY] as MW-1 and relied upon documents Ex.MW1/1 to Ex.MW1/6 and MW1/X2. 7. I have heard the ARs for the parties and perused the record. No case law referred or relied upon by either of the party. 8. On my due consideration of material on record; submissions made by AR for parties and relevant legal provisions and case law; my findings on issues are as follows: ISSUE NO. 1. The workman claimed to be performing manual job as a Purchase Clerk with the management since November 1993. Whereas the management asserted that he was working as Purchase Officer. The plea of the management thus was that the workman was performing the functions "mainly of a managerial nature" and did not fall within the definition of workman enshrined U/[SECTION] [ACT]. To the admission of MW-1 the proprietor of the management when the workman joined the management, the management was assembling light fittings and was trading the same. It had only three workmen. He did not state that at that time management had any Purchase Officer. Secondly to the own admission of the MW-1 the management had received application of the workman seeking employment with the management. However the management has not produced this application on record. Moreover to the own admission of the MW-1 workman was not issues appointment letter. Mere mentioning of Purchase Officer by the workman in Ex.WW1/1 did not clinch controversy about his designation. In [PRECEDENT] the Hon'ble Apex Court held that "The designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee". In the given case as well since the claimant was performing duties of Purchase Clerk which included sale and purchase by him. This implies that his job was mainly manual. It is obvious that he was not performing the functions of managerial nature. Issue is accordingly answered in favour of the claimant that he was a workman as enshrined U/[SECTION] [ACT]. ISSUE NO. 2 : The burden to prove the issue lay upon the management. Reliance placed upon : [PRECEDENT]. As recorded above it is not in dispute that the workman was in the employment of the management since November 1993. The workman claimed that his services were terminated by the management w.e.f. 31.10.98 whereas the management had claimed that workman left the service of the management of his own w.e.f. 6.8.98 even without collecting wages for the month of July 1998. The management was directed to place on record the attendance register and the wages register. But it produced the wages register only uptill August 1998. It did not produce the attendance register stating that the same was not traceable. It is an admitted fact that management was still functional. Thus it is highly unbelievable that the attendance register was untraceable whereas the other documents inclusive of wages register were available with the management. Even the wages register for the period of August, September and October 1998 has not been filed on record. In these circumstances adverse inference has to be drawn against the management that the attendance register was withheld for the reason that it did not support its plea of workman having left the services of the management w.e.f. 6.8.98. Similarly the management intentionally withheld filing of wages register for the period August, September and October 1998. On this count as well adverse inference can safely be drawn against the management that it should have demolished its plea and supported the claim of the workman that he continued to serve the management uptill 31.10.98. In addition to the above as borne from the record the management failed to prove the service of letters Ex.MW1/1 to Ex.MW1/5. Ex.MW1/1 was dated 10.11.98 whereas Ex.MW1/5 was dated 10.4.99 later than 31.10.98. In the cross MW-1 admitted that management was ready to take the workman back on job but subject to disciplinary proceedings for his unauthorised absence. This means the workman was treated to be unauthorisedly absence for which no show cause notice was issued nor domestic enquiry was held management pre-supposed that the workman had left the service of the management w.e.f. 6.8.98. Such an assumption is fallacious. In this backdrop the workman has to be believed that he continued to work with the management uptill 31.10.98. The workman in his testimony has not averred that he made best possible efforts to find alternative job. He also failed to prove that he was not gainfully employed whereas he stated to be was helping his wife who is a running nursing bureau. In this perspective though the alleged termination of the workman is held to be violative of [SECTION] [ACT] and as laid in [PRECEDENT] he is entitled to reinstatement. However as he has failed to prove that he was not gainfully employed and that he tried to find alternative job it would not be fit and prudent to award him reinstatement. 13. In [PRECEDENT], the Supreme Court observed (vide paragraph 14). " The Tribunal, however, has the discretion to award compensation instead of reinstatement if the circumstance of a particular case are unusual of exceptional. " 14. In [PRECEDENT], the Supreme Court observed that it is not always mandatory to order reinstatement after holding the termination illegal, and instead compensation can be granted. The same view was taken by a Division Bench of Delhi High Court in [PRECEDENT]. 15. In [CASE NUMBER] decided on 10.2.06 M/s. [PRECEDENT]., the Hon'ble DB consisting of Hon. Mr. Justice [ENTITY], CJ and Mr. Justice [ENTITY], J held that " it was open to the Labour Court to award compensation instead of reinstatement on the facts of the case. The Hon'ble DB opined the discretion exercised by the labour court directing the grant of compensation instead of reinstatement on the facts of the case ought not be disturbed. To bring the industrial peace and harmony in the society and considering the importance of industrial growth which are to go hand in hand; I deem it a fit case whereby workman be awarded the liquidated compensation @ Rs.5000/- per year for six years service. Accordingly in the given circumstances justice will be out and if the workman is awarded liquidated compensation for the period six years amounting to Rs.30,000/-. The workman is further awarded one month notice pay i.e. Rs.4,000/-. In addition as deemed just and prudent the workman be awarded Rs.5000/- by way of litigation expenses. Issue is answered accordingly. 17. ORDER : In the light of my above discussion the workman is awarded liquidated compensation of Rs.39,000/-. Reference is also answered accordingly. A copy of this award be sent to the appropriate government for its publication. File be consigned to record room. Dated: 22.02.07 ( [ENTITY] ) PRESIDING OFFICER: LABOUR COURT-V: DELHI. Old ID NO. 849/00 New ID NO. 30/06 22.2.07
Present : ARs for parties.
MW-1 cross examined. Concluded. M.E. closed.
Arguments heard. Reserved for award at 2.30 p.m. POLC:V 22.2.07 2.30 p.m. Present : As above.
Award passed separately. At this stage AR for workman moved an application. Heard. As sought posted for payment for 15.3.07.
POLC:V 22.2.07