1 IN THE COURT OF SH. [ENTITY]: PRESIDING OFFICER, LABOUR COURT NO. XVII, KARKARDOOMA COURTS, DELHI ID NO. 947/2006 BETWEEN Workman, Sh. [ENTITY] S/o Sh Rampher C/o Sharamjivi Vikas Union (Regd.), K-63, Gali no. 53, Sadatpur Extn., Karawal Nagar Delhi-110094. AND The Management, M/s. Raunak Engineering Works, 1738, Hauz Suiwalan Delite Cinema(Behind), New Delhi-110002. Date of institution of the case : 02.07.2004 Date of reserving the award : 22.01.2008 Date of announcement of award : 04.02.2008 AWARD 1.
The [ENTITY] through its Secretary (Labour) vide reference no. F.24(129)/2003-Lab./3402-06 dt. 26.05.2004 referred the dispute for adjudication between the Management of M/s. Raunak Engineering Works, and its workman Sh. [ENTITY] S/o Sh Rampher in the following terms of reference:-
Contd
"Whether the workman of Sh. [ENTITY] S/o Sh.
Rampher has settled his account in full and final with the management or his services 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. The workman has filed statement of claim stating therein that he has been employed with the management since the year 1982 as Machine Man and his last drawn salary was Rs. 2400/- p.m. The workman was working sincerely and diligently to the satisfaction of the management. The management was not providing the legal facilities i.e Appointment Letter, Attendance Card, Leave Book, Pay Slip Earned leave, Casual leave, Annual increment, Over time Wages and Minimum wages etc. and the workman was orally demanding the same from the management on which management got annoyed and obtained signatures of workman on blank papers and vouchers and terminated the services of workman on 13.09.2003 without issuing any notice or charge sheet and earned wages of workman from 01.08.2003 to 13.09.2003, leave wages, bonus, overtime wages and arrears of minimum wages were also not paid. The workman sent a notice of demand to the management on 16.09.2003 but the management did not sent any reply to the Contd
same. The workman presented claim before the conciliation officer but the management relied on false claims and no settlement was arrived. The workman is unemployed since the date of termination of his services. It is prayed that an award be passed thereby reinstating workman in service with full back wages and continuity of service.
3. The notice of statement of claim was issued to the management and management has filed W.S. to the statement of claim and has contested the same. In the W.S. the management has denied that the workman was in the employment of the management since the year 1982 as Machine Man and his last drawn salary was Rs. 2400/- p.m It is stated that the workman has taken a sum of Rs. 7000/- on 10.12.1994 as full and final settlement amount from the management and thereafter he has not been in the employment with the mangement. It is denied that the workman was demanding the legal facilities form the management on which management got annoyed and obtained signatures of workman on blank papers and vouchers and terminated the services of workman on 13.09.2003 as alleged. It is stated that workman is not entitled to any relief.
4. The workman has filed rejoinder to the written statement of management. In the rejoinder workman has reiterated the contents of Contd
statement of claim and has controverted the allegations of management as stated in the WS.
5. From the pleadings of parties following issues were framed by my Ld. Predecessor on 01.03.2005:
1. As per terms of reference.
6. To prove his case, workman examined himself as WW1 and WE was closed on 05.10.2006. In support of his case, management examined Sh. [ENTITY], Proprietor of management as MW1 and ME was closed on 19.11.2007.
7. I have heard AR for the parties and carefully perused the record. My findings on the specific issues are as under:
8. in the statement of claim the workman has stated that he has been employed with the management since the year 1982 as Machine Man and the management was not providing the legal facilities and he was demanding the same from the management on which management got annoyed and obtained his signatures on blank papers and vouchers and terminated his services on 13.09.2003. In the W.S. the management has denied that the workman has been in the employment of management since the year 1982. In para 1 of reply on merits in the W.S. the management has stated that the correct facts Contd
are that the workman was previously working with the management and on 10.12.1994 he has taken his full and final settlement dues from the management and he left the services of the management.
9. Although, in the W.S. the management has denied that the workman has been in the employment of the management since 1982 however, the management has not stated the date of appointment of workman with the management. The workman appeared in the witness box as WW1 and he adduced evidence by way of affidavit Ex. WW1/A. In para 1 of the affidavit Ex. WW1/A the workman has stated that he has been in the employment of management since the year 1982. In the cross-examination workman/WW1 no suggestions have been given to the effect that he has not been employed by the management since the year 1982. In the cross-examination of workman/WW1 the management has also not given any other suggestion to the effect that he (workman) has been employed with the management since any other date. In the cross-examination of workman/WW1 the management has failed to rebut the statement of workman to the effect that he has been employed by the management since the year 1982. The workman has relied on copy of notice of demand dt. 16.09.2003 Ex. WW1/1, copy of the claim filed before the Conciliation Officer Ex. WW1/5 and letters Ex. WW1/6 to Ex. WW1/8. Copy of demand notice Ex. WW1/1, copy of the claim filed before the Contd
Conciliation Officer Ex. WW1/5 and the letters Ex. WW1/6 to Ex. WW1/8 do not prove the date of appointment of workman with the management. In his statement of claim and affidavit Ex. WW1/A the workman has stated that the management had not issued him letter of appointment, attendance card, leave book and pay-slip etc. As the plea of the workman is that the management had not issued him any document by which he could prove his date of appointment with the management in the circumstances, only course open before the workman was to ask the management to produce the relevant records. But the management has also not filed any record in order to prove that the workman has not been employed by the management since the year 1982. The management examined Sh. [ENTITY], Proprietor as MW1 who adduced evidence by way of affidavit Ex. MW1/A and in the affidavit Ex. MW1/A also the management has also not mentioned the date of appointment of workman with the management and in affidavit Ex. MW1/A the management has also not mentioned that the workman has not been employed with the management since the year 1982. MW1 stated in the cross-examination that the management had not issued any letter of appointment to the workman and the management had also not issued any attendance card to the workman. MW1 further stated in the cross-examination that the management is not maintaining ledger books and the management is also not maintaining attendance register Contd
and wages register. Once the management had not issued letter of appointment and any attendance card to the workman and the management has also not proved that any wages slip was issued to the workman in the circumstances, the workman cannot be possessed of any document by which he could prove the date of appointment with the management. As MW1 stated in the cross-examination that the management is not maintaining attendance register, wages register and any ledger books in the circumstances the workman cannot call upon the management to produce any records in order to prove his date of appointment with the management (as MW1 denied in the cross-examination that the management was maintaining attendance register, wages register or ledger books). The management has failed to rebut the contention of workman that he has been employed with the management since the year 1982.
10. The workman has pleaded that his services were terminated by the management illegal on 13.09.2003. But the management has stated that the workman voluntarily left the services of management after taking his full and final settlement amount on 10.12.1994. In order to prove its contention that the workman has voluntarily left the services of management after taking full and final settlement amount on 10.12.1994 the management has relied on receipt dt. 10.12.1994 Ex. MW1/A. The receipt dt. 10.12.1994 Ex. MW1/A was put to Contd
the workman in his cross-examination and the workman denied that it bears his LTI at point A. The management has not examined any Handwriting and Finger Print Expert in order to prove that the receipt dt. 10.12.1994 Ex. MW1/A bears LTI of the workman. The plea of the management is that the workman had executed receipt dt. 10.12.1994 Ex. MW1/A in presence of Representative of Progressive National Labour Union (Regd.). Perusal of receipt dt. 10.12.1994 Ex. MW1/A shows that it has been prepared on the letterhead of the management and in the same it is stated that the workman has received a sum of Rs.7000/- from the management on 10.12.1994 on account of his dues of services, arrears of minimum wages, earned wages and leave wages and he is left with no claim against the management. In receipt dt. 10.12.1994 Ex. MW1/A it is nowhere stated that the workman has resigned from the services of the management and that he has voluntarily left the services of the management. The workman/WW1 had denied in the cross-examination his LTI on Ex. MW1/A. In the circumstances, it was for management to prove that the receipt dt. 10.12.1994 Ex. MW1/A was executed by the workman voluntarily in presence of witness mentioned therein and that the same was executed by the workman after receiving a sum of Rs.7,000/- (Rupees Seven Thousand Only) as full and final settlement amount. As per receipt dt. 10.12.1994 Ex. MW1/A, the same was executed in the presence of Representative of Progressive Contd
National Labour Union (Regd.). However, the management has not examined witness in whose presence the said receipt dt. 10.12.1994 Ex. MW1/A was executed. MW1 stated in the cross-examination that the management is not maintaining any ledger books. MW1 denied suggestion of AR for the workman in the cross-examination to the effect that the management is deliberately not producing the ledger books as it does not contain any record of payment of sum of Rs.7,000/- to the workman on 10.12.1994. The management has not produced the books of accounts maintained by it in its due course of business in order to prove that a sum of Rs.7000/- was paid to the workman on 10.12.1994 and that the same was duly reflected in the books of accounts maintained by the management. MW1 further stated in the cross-examination that no copy of receipt dt. 10.12.1994 Ex. MW1/A was sent to the Labour authorities and Ex. MW1/A was not recorded in the presence of Labour authorities. The management has not produced any record in order to prove that the workman has not performed duties with the management after 10.12.1994 to rebut the claim of the workman that his services were terminated by the management on 13.09.2003. The management has failed to prove that the workman had voluntarily left the services of the management ; on 10.12.1994 after receiving a sum of Rs.7000/- as full and final settlement amount.
Contd
11. The aforesaid discussions and the evidence adduced on record shows that the workman has been in the employment of management since the year 1982 and the services of workman were terminated by the management on 13.09.2003.
12. In [PRECEDENT] was held that "the law must therefore be now taken to be well settled that procedure prescribed for depriving a person of livelihood must meet the challenge of [SECTION] and such law would be liable to be tested on the anvil of [SECTION] and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of [SECTION]. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi-judicial enquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or, to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial enquiry and not to administrative enquiry. It must logically apply to both."
13. In The [PRECEDENT] was held that "the employee is always in a Contd
disadvantageous position vis-a-vis the employer. He is not in a position to dictate the terms of employment qua the employer. It is the sweet-will of the employee to engage a workman on the terms and conditions which suit the employer. However, when a workman leaves service after working for a year or more, the natural conduct which is expected of the employer is to make an enquiry as to why the workman is not coming on duty."
14. In [PRECEDENT] it was held by Hon'ble Supreme Court that for terminating services without holding the enquiry a conclusion has to be recorded that it was not reasonably practicable to hold the enquiry proceedings and since such a finding had not been recorded by the authorities, the termination was illegal.
15. [SECTION] of the [ACT] reads as under:
"retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include-
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non-
renewal of the contract of employment between the employer and the Contd
workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill-health.
16. [SECTION] of the [ACT] provides that:
Conditions precedent to retrenchment of workmen. - No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until -
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.
17. The management has not proved that they conducted any enquiry and the management has also not proved that any conclusion was recorded by Contd
the management that it was not reasonably practicable to hold the enquiry proceeding. It is held accordingly that the services of workman have been terminated illegally by the management.
18. The next question which is to be decided is regarding the relief which is to be given pursuant to illegal termination of services of workman.
19. In [PRECEDENT] was held that "for entitlement of back wages on reinstatement of a employee, the employee has to show that he was not gainfully employed and the initial burden is on him. Thereafter, if the workman places materials in that regard, the employer can bring on record materials to rebut the claim".
20. In [PRECEDENT] it was held that "no precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed since it depends upon the facts and circumstances of each case, as such it will not be correct to contend that it is automatic hence should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of the [ACT]."
Contd
21. The workman appeared in the witness box as WW1 and he has adduced his evidence by way of affidavit Ex. WW1/A. In para 14 of affidavit Ex. WW1/A the workman has stated that he has been unemployed since the date of disengagement from the services of the management. In the cross- examination of the workman/WW1 no suggestions have been given to the effect that the workman has been gainfully employed after disengagement from the services of the management.
22. In [PRECEDENT], it was held that gainful employment of a workman during interregnum will also include either self-employment or earning some amount from agricultural pursuits to maintain himself.
23. The management has not proved that the workman has been employed in any establishment after his disengagement from the management. Although in para 14 of his affidavit Ex. WW1/A the workman has stated that he is unemployed since the date of termination of his services, but the workman has not proved that as to what efforts were made by him to secure alternate employment and that as to which managements he had approached for employment after his disengagement from the management. The workman has not proved that he had sent any applications to any other managements for employment after disengagement from the management. The workman has Contd
not proved that he took any steps to mitigate days of his hardship by trying to secure alternate employment. In the circumstances, the workman shall be entitled to back wages @ 50% from the date of disengagement of his services from the management i.e 13.09.2003. Moreover, this is a case wherein the management has not maintained any record in respect of the workman and the management has taken the plea that the workman has not been in the employment of the management since the 10.12.1994 in the circumstances, it would be appropriate if instead of ordering reinstatement, the workman is compensated in terms of money. Accordingly, the workman shall be entitled to compensation calculated in terms of [SECTION] of the [ACT]. The workman shall also be entitled to a sum of Rs.10,000/- (Rupees Ten Thousand Only) on account of cost of these proceedings under [SECTION] of the [ACT]. Reference stands answered accordingly. Copies of the award be sent to the appropriate Government for publication as per law. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT.
TODAY i.e. ON 04.02.2008.
([ENTITY]) PRESIDING OFFICER LABOUR COURT NO. XVII KARKARDOOMA COURTS, DELHI 04.02.2008 Present:- Workman in person.
None for management.
Award dictated and announced, separately. Copies of the award be sent to appropriate Government for publication as per law. File be consigned to Record Room.
POLC/04.02.2008