1 IN THE COURT OF SH. [ENTITY]: PRESIDING OFFICER, LABOUR COURT NO. XVII, KARKARDOOMA COURTS, DELHI ID NO. 994/2006 BETWEEN The workman Sh. [ENTITY] S/o. Sh. Mahender Pandey C/o New Azad Hind General Mazdoor Union, Q - 4/70, Mangolpuri, New Delhi - 110083. AND The Management of M/s. Singla Plastic Industries, Shed No. 20, D.S.I.D.C., Industrial Complex, Rohtak Road, Nangloi, New Delhi - 110041. Date of institution of the case : 30.08.2003 Date of reserving the award : 24.04.2008 Date of announcement of award : 28.04.2008 AWARD 1.
The [ENTITY] through its Secretary (Labour) vide reference no. F.24(1941)/2003/Lab.11820-24 dt. 14.08.2003 referred the dispute for adjudication between the management of M/s. Singla Plastic Industries and its workman Sh. [ENTITY] S/o. Sh. Mahender Pandey in the following terms of reference:-
"Whether the services of Sh. [ENTITY] S/o. Sh. Mahender Pandey 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 20.03.1990 at the post of Operator and his last drawn wages were Rs.4800/- per month. The workman was working sincerely and diligently to the satisfaction of the management and never gave any chance of complaint to the management. The management was indulging in anti-labour practice and was not providing the legal benefits to the workman as per labour laws and the workman was demanding the same from the management. In order to fight for his demands the workman joined New Azad Hind General Mazdoor Union which came to the knowledge of the management. On 21.12.2002 the workman demanded casual leave from the management and the management compelled him to sign some blank papers which was opposed by the workman and when the situation worsened the workman called the police by dialing 100 and thereafter matter was settled with the intervention of the police. On 22.12.2002 the management was closed due to weekly holiday and on 23.12.2002 the workman approached the management for work but the management refused to take him back on duty and thereby terminated the services of the workman without issuing any notice or charge - sheet and without paying him any compensation. The workman sent a notice of demand dt. 04.01.2003 to the management but the workman was not reinstated. On 02.01.2003 the workman made complaint to Assistant Labour Commissioner through Union but despite efforts of Labour Inspector the workman was not reinstated and his back wages were not paid. The workman has been regularly approaching the management for the reinstatement in service but he has not been reinstated in service. The workman is unemployed since the date of termination of his service despite best efforts to get alternate employment. It is prayed that an award be passed thereby reinstating the workman in service with full back wages and continuity of service.
3. Notice of statement of claim was issued to management and the management has filed W.S. to the statement of claim and has contested the same. In the W.S. the management has taken the objection that the workman concerned has already left the job of his own and has taken all his dues from the management and the claim of the workman is liable to be dismissed. It is admitted that the workman has been in the employment of management but the date of appointment, designation and wages of workman are denied. It is also denied that the workman has uninterrupted and unblemished record of his service. It is denied that the management has not provided the legal facilities to the workman or that the workman was demanding the same from the management, as alleged. It is also denied that on 21.12.2002 the workman demanded casual leave and the management compelled him to sign on some blank papers. It is denied that on 23.12.2002 the management refused to take the workman on duty and thereby terminated the services of workman, as alleged. It is stated that the workman has already taken all his dues from the management and the management has duly informed the same to the Labour Inspector by a registered letter dt. 02.01.2003. It is stated that the workman is not entitled to any relief.
4. The workman has filed rejoinder to the written statement of management. In the rejoinder, the workman has reiterated the contents of statement of claim and has controverted the allegations of the management as stated in the written statement.
5. From the pleadings of parties following issues were framed by my Ld. Predecessor on 12.04.2005:
1. Whether the workman himself left the job and taken all his dues from the management and the management informed the Labour Inspector in this regard by a registered letter dated 02.01.2003? If so, its effect? OPM.
2. As per terms of reference.
6. To prove his case the workman examined himself as WW1.
7. Management examined Sh. [ENTITY], Partner as MW1 and Sh. [ENTITY], Handwriting and Finger Prints Expert as MW2.
8. I have heard AR for both parties and carefully perused record. My findings on specific issues are as under:
9. in the statement of claim workman has stated that he has been employed with the management since 20.03.90 and the management was not providing the statutory facilities and on 21.12.2002 the workman demanded casual leave and the management compelled him to sign some blank papers which was opposed by the workman and when the situation worsened the workman called the police and the matter was settled with the intervention of police and on 22.12.2002 the management was closed due to weekly holiday and on 23.12.2002 when the workman reported for duty, the management refused to take him back on duty and thereby terminated the services illegally and thereafter on 02.01.2003, the workman made complaint to the labour authorities and on 4.1.2003 the workman sent notice of demand to the management. In the WS management has stated that the workman left the job of his own and has taken all dues from the management.
10. The workman appeared in the witness box as WW1 and he adduced his evidence by way of affidavit Ex. WW1/A. In the affidavit Ex. WW1/A the workman has stated that on 21.12.2002 he asked for the casual leave from the management and the management forced him to sign some papers and he opposed the same and the situation worsened and he called the police and the settlement was arrived with the intervention of police. In the cross-examination of workman/WW1, a suggestion was given by management to the effect that on 21.12.2002 a settlement was arrived with the management. Thereafter , the workman/WW1 further voluntarily stated in the cross-examination that as per the said settlement he was report for duty next day morning. MW1 also stated in cross-examination that on 21.12.2002 the workman had called the police and in the presence of police officials the management had told that the workman will be taken on duty on 22.12.2002 and he will not be allowed to work on 21.12.2002 as he was not well on that day and the police officials had taken in writing on 21.12.2002 that workman will taken on duty from 22.12.2002. Hence the management has also admitted that on 21.12.2002 , this dispute had arisen between the parties and on that account the police had to be called. The plea of the workman is that after 21.12.2002 he approached for work on 23.12.2002 as 22.12.2002 was holiday, and on that day management refused to assign him duties and thereby terminated his services. Although in the WS the management has only taken the plea that workman has taken his dues in full and final settlement, however, the management has not stated in the WS as to on which date, the workman had taken his full and final dues from the management and as to what sum was given to workman as full and final settlement amount and the payment of alleged full and final amount was made to workman in the presence of which witnesses. The management has also not stated in the WS that the workman had submitted resignation and had requested for given him full and final dues but in the cross-examination of workman the management has confronted workman with receipt/settlement mark X (Ex. MW1/2) in order to prove that a sum of Rs. 12,385/- was taken by workman as full and final settlement amount on 31.12.2002 but the workman/WW1 denied his signatures on the receipt/settlement mark X (Ex. MW1/2). As per receipt/settlement mark X (Ex. MW1/2) management had deducted a sum of Rs. 5,000/- which was allegedly taken by workman as advance. In the cross-examination, workman/WW1 was also confronted with one voucher dt. 09.10.2002 mark Y ( Ex. MW1/1) by which a sum of Rs, 5,000/- was allegedly taken by workman as advance from the management but the workman/WW1 denied his signatures on mark Y (Ex.MW1/1) also.
11. It is to be noted that in the cross-examination of workman/WW1 the management confronted him with receipt/settlement mark X (Ex. MW1/2) and voucher dt. 09.10.2002 mark Y (Ex. MW1/1) in order to prove that workman has taken full and final settlement amount from the management on 31.12.2002 but in the WS the management has nowhere stated that workman had taken any sum of Rs. 5,000/- as advance on 09.10.2002 or that a sum of Rs. 12,385/- was paid to the workman as full and final settlement amount on 31.12.2002. If the case of the management was that the workman had demanded a sum of Rs. 5,000/- as advance from the management on 09.10.2002 and that the workman has voluntarily left the services of the management on 31.12.2002 after taking a sum of Rs. 12,385/- as full and final settlement then the management could have stated the said facts in the WS but the management has not mentioned the said facts in the WS for the reasons best known to the management. Moreover, in the WS management has nowhere stated that workman executed any voucher on 09.10.2002 whereby he received a sum of Rs. 5,000/- and that the workman executed any receipt/settlement dt. 31.12.2002 after receiving the sum of Rs. 12,385/-. The management had also not filed receipt/settlement mark X (Ex. MW1/2) and voucher mark Y ( Ex. MW1/1) alongwith the WS or till the time of settlement of issues. receipt/settlement dt. 31.12.2002 mark X (Ex. MW1/2) and voucher dt. 09.10.2002 Mark Y (Ex. MW1/1) were produced by the management for the first time in the cross-examination of workman/WW1 and the workman/WW1 denied having signed receipt/settlement mark X (Ex. MW1/2) and voucher dt. 09.10.2002 mark Y ( Ex. MW1/1). As per receipt/settlement mark X (Ex. MW1/2) the payment of the alleged settlement amount of Rs. 12,385/- was paid to workman in the presence of one witness namely Sh. [ENTITY]. However, the management has not produced the said witness namely Sh. [ENTITY] who is cited on receipt/settlement mark X (Ex. MW1/2) in order to prove that workman had voluntarily left the services of the management on 31.12.2002 and the workman had received a sum of Rs. 12,385/- from the management as full and final settlement amount in his presence and thereafter the workman signed receipt/settlement mark X (Ex. MW1/2) in his presence.
12. Voucher dt. 09.10.2002 mark Y ( Ex. MW1/1) is signed by one accountant of the management. However, the management has not examiend the said accountant who had signed voucher , mark Y ( Ex, MW1/1) in order to prove that he has made payment of sum of Rs. 5,000/- as advance to the workman on 09.10.2002 and the workman signed voucher mark Y ( Ex. MW1/1) in his presence. The management has not produced the books of accounts maintained by it in its regular course of business in order to prove that the payment of sum of Rs. 5,000/- to workman on 09.10.2002 and Rs. 12,385/- to the workman on 31.12.2002 were duly reflected in the books of accounts maintained by the management.
13. The case of the management as per receipt/settlement Mark X ( Ex. MW1/2) is that the workman voluntarily left the services of the management on 31.12.2002 after taking full and final settlement amount but the workman has pleaded that on 21.12.2002 a dispute had arisen between the parties on account of which police was called and settlement was arrived between the parties and when on 23.12.2002 he reported for duty the management terminated his services illegally. The management has alleged that workman has taken his full and final settlement dues on 31.12.2002. The management has not proved that the workman has worked with management from 23.12.2002 to 31.12.2002 and that on 31.12.2002 request was made by workman that he be given full and final settlement amount. If the case of the management is that the workman has not worked from 23.12.2002 to 31.12.2002 and that he was absent from duties of the management during the said period and on 31.12.2002 the workman approached the management for full and final settlement dues then the management has not given any such suggestion to the workman/WW1 in his cross-examination in order to prove that the workman was absent from duties from 23.12.2002 to 31.12.2002 and on 31.12.2002 workman approached the management and requested for giving full and final settlement dues.
14. As per aforesaid discussions it has been admitted by both the parties that the dispute had arisen between the parties on 21.12.2002 on which account police was called . In the circumstances, it is not expected that that management will make payment of full and final dues on 31.12.2002 without his submitting resignation or his making request in writing for making payment of full and final settlement dues. In Para-8 of the statement of claim and affidavit Ex. WW1/A the workman has stated that he made complaint to the labour authorities on 02.01.03 through his union but despite the efforts of Labour Inspector the workman was not reinstated and the management refused to produce the service record to the Labour Inspector and also refused to pay earned wages for the month of December 2002. In the cross- examination of workman/WW1 no suggestion has been given bt the management to the effect that he had not made any complaint to the Labour Authorities or that the Labour Inspector had not made any efforts for reinstatement of the workman. The management has filed on record one letter dt. 02.01.2003 Ex. MW1/3 addressed to the Labour Inspector and in the said letter management has stated about the personal visit of labour inspector to the factory of management on 02.01.2003. The management has not summoned the Labour Inspection in order to prove that on his visit to management on 02.01.2003 in pursuance to complaint of workman, the management had told the Labour Inspector that workman has left the service of the management on 31.12.2002 after taking full and final settlement dues and that receipt/settlement Mark X ( Ex. MW1/2) was shown to the Labour Inspector in order to prove that workman has voluntarily left the services of the management. The management has also not proved that alongwith the letter Ex. MW1/3 any copy of the receipt/settlement Mark X ( Ex. MW1/2) was sent to the Labour Authorities thereby proving that the workman has executed receipt/settlement Mark X ( Ex. MW1/2) in token of having received full and final settlement amount. On one hand, the management has filed letter Ex. MW1/3 on record which was allegedly sent to the Labour Inspector wherein reference has been made to the personal visit of the Labour Inspector to the management on 02.01.2003 but on the other hand MW1 denied the suggestion of workman in his cross-examination to the effect that the workman came to the management alongwith Labour Inspector and the Labour Inspector had told the management to reinstate the workman but he management refused to reinstate him. The management has neither stated in the WS nor in the affidavit Ex. MW1/A that the Labour Inspector had visited the management on 02.01.2003 and the Labour Inspector apprised of the fact that the workman has left the services of the management on 31.12.2002 after taking a sum of Rs. 12,385/- as full and final settlement amount and the workman has executed receipt/settlement Mark X ( Ex. MW1/2). The management has failed to prove that provisions of [SECTION] of the [ACT] were complied with. The management has failed to prove that the workman has voluntarily left the services of the management after taking full and final settlement dues. This issue is decided in favour of the workman and against the management.
15. ISSUE NO.2 The plea of the workman is that his services have been terminated illegally by the management w.e.f. 23.12.2002. Although the management had taken the plea that the workman voluntarily left the services of the management after taking full and final settlement dues but in findings on Issue No.1 above it has been held that the management has failed to prove that the workman has voluntarily left the services of management by taking full and final settlement dues. The aforesaid discussions prove that the services of the workman have been terminated by the management w.e.f. 23.12.2002 and the management has made a lame excuse that the workman has voluntarily left the services of the management after taking full and final settlement dues.
16. 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."
17. In The [PRECEDENT] was held that "the employee is always in a 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."
18. 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.
19. [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 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.
20. [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.
21. The management has not proved that they conducted any enquiry and the management has also not proved that any conclusion was recorded by the management that it was not reasonably practicable to hold the enquiry proceeding. It is held accordingly that the services of workwoman have been terminated illegally by the management.
22. The next question which is to be decided is regarding the relief which is to be given pursuant to illegal termination of services of workwoman.
23. 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".
24. 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]."
25. The workman adduced evidence by way of affidavit Ex. WW1/A in which the workman has stated that he has remained unemployed since the date of termination of his services by the management and he could not secure alternate job despite his best efforts. The management has not proved that the workman has been gainfully employed in any establishment after disengagement from the management. The workman/WW1 stated in the cross-examination that his family consists wife and four children and monthly expenditure of his family is about Rs. 5,000/-. The workman has not proved as to which managements were approached by him after disengagement from the management for alternate employment and that he could not secure alternate employment in the said managements. The workman has not proved as to what steps were taken to mitigate the days of his hardships. Although the workman/WW1 has stated in cross-examination the monthly expenditure of his family is Rs. 5,000/- but he has not explained as to how he was able to meet this expenditure of his family. These circumstances proves that the workman might have doing some other work in order to make a living. In the circumstances, the workman shall be entitled to back wages @ 50 % from the date of disengagement his services from the management w.e.f. 23.12.2002 till date. As per evidence adduced on record, the atmosphere between the parties was hostile and on that account the police had to be called on 21.12.2002. The atmosphere of hostility existing between the parties would not let the parties work in haromonious manner. In the circumstances, no order of reinstatement of workman in the services of management is being passed. 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 award be sent to appropriate Govt. for publication as per law. File be consigned to record room. ANNOUNCED IN THE OPEN COURT TODAYi.e.ON 28.04.2008 ([ENTITY]) PRESIDING OFFICER LABOUR COURT NO. XVII KARKARDOOMA COURTS DELHI