BEFORE THE COURT OF SH. [ENTITY] PR[ACT]DING OFFICER:LABOUR COURT XVII:KKD:DELHI DID No.21/07. Unique ID No. 02402C0136772007 Smt. [ENTITY] W/o Sh. Rajdev Bharti, C/o Shahdara General Udyog Shramik Union ( Regd.), 1/2481, Gali No. 26, Moti Ram Road, Modern Shahdara, Delhi110032. [ENTITY] Versus i) M/s. [ENTITY] Exclusif 51/6, Deshbandhu Gupta Road, Karol Bagh, New Delhi 110005. Through Sh. [ENTITY], Sh. [ENTITY], Sh. [ENTITY], Partner Management No.1 ii) M/s. Chetan Exports, 51/6, Deshbandhu Gupta Road, Karol Bagh, New Delhi 110005. Through Sh. [ENTITY], Sh. [ENTITY], Partner. Management No.2 DATE OF INSTITUTION : 17.02.2007. DATE ON WHICH AWARD RESERVED : 07.10.2013. DATE ON WHICH AWARD PASSED : 07.10.2013. DID 21/07 1/30 A W A R D : 1. This is a direct industrial dispute filed by the workman under [SECTION] read with [SECTION] of the [ACT] (hereinafter "the Act") against the management. 2. In her claim, it is submitted by the workman that she was working with management No.1 since 15.03.1999 on the post of Repairman. Her last drawn salary was Rs.2700/ per month. Both the managements are engaged in same kind of business. They are working under the same roof, have a single office without any partition and employees of one management work for the other management also, as per the oral directions given by the managements. The employees are made to work in both the managements in such a way that it is difficult for the employee to find out as to whose employee he/she is, even after working for the managements for years. However, both the managements have been separately registered under [ACT] and EPF. The managements never prepared the records of the workman properly, never issued any appointment letter nor it ever gave the other legal facilities like annual leaves, causal leaves, minimum wages, designation as per the work of the DID 21/07 2/30 workman, salary as per the designation of the workman, overtime, bonus, leave book, wages slip, attendance card, etc, etc. Whenever the workman demanded the same, the managements gave only false assurances. The managements obtained signatures of the workman on some blank papers, printed forms, vouchers with revenue stamps and receipt for full and final settlement on the pretext of giving these facilities. The management showed the appointment of the workman from a date later than the date on which she actually joined and she was covered under the [ACT] and EPF by the management from such later date. The workman has never left the job nor she has taken full and final settlement. When the workman with other female employees of the management demanded the aforesaid legal facilities with arrears of bonus for the last 45 years, managements terminated her services w.e.f 23.10.2006 without any notice or notice pay or retrenchment compensation or payment, illegally and unjustifiably. They also withheld the salary of the workman for the months of September and October 2006. The termination is in violation of [SECTION] of the Act. Employees junior to the workman are still working with the managements, which is in violation of [SECTION] of the Act. The managements have also appointed some other person in place of the DID 21/07 3/30 workman after her termination, which is in violation of [SECTION] of the Act. The workman with other females employees of the managements sent a complaint to the Conciliation Officer, Pusa Road and a demand notice through Sh. [ENTITY], Advocate to the managements. The managements did not reinstate the workman despite receipt of the notice. The workman with other female employees of the managements became a member of Shahdara General Udyog Shramik Union (Regd.) on 03.11.06 and again lodged a complaint in the Labour Office through the Union and raised the demand in respect of the bonus. The Union also sent a demand notice dated 03.11.06 to the managements by registered AD as well as [ACT]. Despite service of the demand notice, no reply was sent by the managements. On the joint complaint dated 23.10.06, the Labour Inspector Sh. [ENTITY] and Sh. [ENTITY] approached the managements on 06.11.06, where the Proprietor of the managements Sh. [ENTITY] refused to reinstate the workman and the other similarly terminated female employees but stated that he shall make the payment of earned wages on 07.11.06 in the factory itself. This statement of Sh. [ENTITY] was recorded by the Labour Inspector Sh. [ENTITY] which was signed by Sh. [ENTITY] and Sh. [ENTITY], (a representative of the Union). However, only the earned wages for DID 21/07 4/30 October 2006, and that too less than minimum wages, was paid on 08.11.06 in the presence of Labour Inspectors Sh. [ENTITY] and Sh. [ENTITY], which the workman accepted under protest, which was noted by the Labour Inspector Sh. [ENTITY] in his proceedings. It is only on 08.11.06 i.e. at the time of payment of earned wages that the workman and other employees came to know for the first time that the managements have shown 20 persons to be employees of M/s. [ENTITY] Exclusif and the remaining three to the employees of M/s. Chetan Exports. When the records of both the managements were checked by the Labour Inspector, it was found that the name of only four employees were registered in the records of M/s. [ENTITY] Exclusif ( Management No. 1) and there were only 3 names in the register of M/s. Chetan Exports (Management No.2). The managements failed to produce records of other 16 employees. It was learnt that no records of these 16 employees was prepared. The earned wages for the month of October 2006 of these 16 employees were paid on a plain paper after obtaining their signatures. The managements admitted these 16 employees also to be the employees of M/s. [ENTITY] Exclusif (Management No.1). The workman has never left the job of her own will and she is still ready to work with the management. The workman is unemployed since the date of her DID 21/07 5/30 termination despite her best efforts. Hence, the present claim seeking reinstatement with full back wages and continuity of services. 3. Both the managements contested the claim by filing a joint written statement. Relationship of employee and employer between the workman and the management No. 1 and sending of the legal notice by the workman are not disputed by the managements. The other contents of the claim are denied by the managements. It is submitted by the managements that workman was working as Helper with management No. 1 w.e.f. November, 2002 and that her last rate of wages was Rs. 3,300/ per month. The management never terminated her services and even today, it is willing to employ the workman. It is the workman who has failed to resume her duties and has not approached the managements. She has herself remained absent from duties despite offer and willingness on the part of the managements to employ her. Even in the conciliation proceedings, the management offered employment to the workman but despite the offer, she failed to resume her duties. The legal notice was duly replied by the management. The workman is gainfully employed with some other employer. The managements have sought dismissal of the claim with costs. DID 21/07 6/30 4. In her rejoinder, the workman has controverted the pleas of the managements and has reiterated those of her claim. 5. From the pleadings of the parties, following issues were framed: 1. Whether the workwoman has been voluntarily absenting from the services of management as stated in para 2 of PO of WS, if so, its effect? OPM 2. Whether services of workwoman have been terminated illegally and / unjustifiably by the management, if so, its effect? OPW. 3. Relief 6. The workman examined two witnesses including herself in support of her case whereas although the managements filed an affidavit of Sh. [ENTITY], the witness was not produced for his cross examination. Evidence of the managements was closed by the order of the Court. 7. Joint written arguments were filed by the managements who have relied upon the following authorities in support of their DID 21/07 7/30 contentions: a) ( 1972) 4 SCC 562, [PRECEDENT]. b) [PRECEDENT], [PRECEDENT]. c) 2009 (5) [CASE NUMBER] M/s. Enn Ess electronics [PRECEDENT]. d) [PRECEDENT], [PRECEDENT]. P. Ltd. 8. Ld. Authorised Representative for workman (ARW) relied upon the following authorities in support of his contentions: a) [PRECEDENT], [PRECEDENT]. b) [PRECEDENT], [PRECEDENT]. c) [PRECEDENT], [PRECEDENT]. d) [PRECEDENT]. DID 21/07 8/30 9. I have heard Authorised Representatives of both the parties and have also gone through the record including the written arguments filed by the managements as well as the authorities relied upon by both the parties. 10. My issuewise findings are as follows: ISSUES NO. 1 & 2 11. Both the issues are being taken up together as both are interconnected. The burden of proving issue No. 1 was on the managements, whereas the burden of proving issue No. 2 was on the workman. 12. It has been held in [PRECEDENT], [PRECEDENT] as follows: "4. He has also placed a decision of the Allabad High Court in [PRECEDENT], wherein a similar fact situation had arisen. In the said decision, it has been observed that the statement of claim supported by the DID 21/07 9/30 affidavit of the claimant constitute the preliminary evidence and it is upon the Management / employer to controvert the same and if not so controverted then nothing further needs to be proved and done by the claimant. However, the primary responsibility of establishing his case rests on the claimant. And in that case, the Allahabad High Court held that the Labour Court had patently erred in holding that the burden of proof lay upon the employers. It further held that the obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. The test would be, who would fail if no evidence is led. The party making the allegation and seeking redressal must seek an opportunity to lead evidence. A similar view was taken by the Division Bench of the said Allahabad High Court in the case of [PRECEDENT]. 5. Agreeing with the view taken in the said decision of the Allahabad High Court, I hold that the impugned order dated 22nd February, 1989 passed by the Labour Court asking the petitioner to lead evidence first cannot be sustained in law an, I accordingly quash the same. The claimant is to lead evidence first as it is he who has to establish his allegations. The matter is remanded to the Labour Court for adjudication as per provisions of law. It is made clear that this Court has not expressed its view on the merits of the reference. In these circumstances there shall be no order as to costs." (underlining be me.) 13. It is clear from the authority that the initial burden of DID 21/07 10/30 proving the case is on the workman. 14. In her affidavit filed as examinationinchief, the workman as WW1 almost fully supported her case as stated in her claim and relied upon complaint dated 23.10.06 sent by the workman with certain other persons to the Conciliation Officer as Ex WW1/1, legal notice dated 23.10.06 sent on behalf of workman as well as certain other persons to the managements as Mark A, postal receipts of Mark A as Ex WW1/2 and Ex WW1/3, two acknowledge cards in respect of the legal notice both as Ex WW1/4, complaint dated 03.11.06 sent by the Shahdara General [ENTITY] Union (regd.) on behalf of workman and certain other persons to the Labour Department as Ex WW1/5, demand notice dated 03.11.06 on behalf of workman and certain other persons forwarded by Sh. [ENTITY], Secretary of the Union to the managements as Ex WW1/6, annexure () to Ex WW1/6 as Ex WW1/7, annexure () to Ex WW1/6 as Ex WW1/8, another copy of the same notice as Ex WW1/9, carbon copy of Ex WW1/7 as Ex WW1/10, carbon copy of Ex WW1/8 as Ex WW1/11, two postal receipts in respect of Ex WW1/6 as Ex WW1/12 and Ex WW1/13 respectively, one [ACT] receipt in respect of Ex WW1/6 as Ex WW1/14, another notice dated 03.11.06 DID 21/07 11/30 sent by Sh. [ENTITY], Secretary of the Union on behalf of workman and some other persons to the Bonus Officer as Ex WW1/15, report dated 18.12.06 of Labour Inspector Sh. [ENTITY] as Ex WW1/16, claim filed by the workman and certain other persons before the Conciliation Officer as Ex WW1/17, her [ACT] card as Ex. WW1/18, PF receipts as Ex. WW1/19 to Ex. WW1/22 and leave application as Mark A (Thus Mark A has been used twice) 15. In her crossexamination, she denied that she was appointed with the management w.e.f. November, 2002 and not since, 1999 and that the management never terminated her services and that she was remaining absent of her own and that she was employed and earning Rs.8,000/ per month. She admitted that she did not make any complaint to the Labour Department / police authorities about taking of her signatures and thumb impressions by the management on blank papers and vouchers. 16. WW2 is Sh. [ENTITY], General Secretary of Shahdara General [ENTITY] (Regd). In his affidavit filed as examinationinchief, he stated that 23 terminated employees of the management including the workman joined the Union after 23.10.06 and authorised him for future DID 21/07 12/30 proceedings against the managements. All 23 employees including the workman made a complaint dated 03.011.06 through Union to Assistant Labour Commissioner and also sent a demand notice on the same day to the Bonus Officer for payment of bonus. On the complaint dated 23.10.06, the Labour Inspector Sh. [ENTITY] with Labour Inspector Sh. [ENTITY] with him (WW2) went to the Office of the managements where Sh. [ENTITY], partner of both the managements told the Labour Inspector in his presence and in presence of all the 23 employees that he is not ready to take back all the 23 employees on duty and that he shall make payment of earned wages of pending months to 23 employees on 07.11.06 in the factory premises. This statement of Sh. [ENTITY] was noted by the Labour Inspector Sh. [ENTITY] in his official register and signatures of Sh. [ENTITY] and that of WW2 were taken on the statement. The payment was made on 08.11.06 by Sh. [ENTITY] in the presence of Labour Inspector Sh. [ENTITY], Labour Inspector Sh. [ENTITY], WW2 to all the 23 employees, pertaining to wages of October 2006 and overtime. Sh. [ENTITY] had admitted before the Labour Inspector Sh. [ENTITY] in his (WW2's) presence that out of the 23 employees, 20 were employees of M/s. [ENTITY] Exclusif and remaining three were employees of M/s. Chetan Export and that the managements DID 21/07 13/30 had not prepared records of most of the employees. WW2 relied upon the same documents Ex. WW1/1 to Ex. WW1/17 as relied upon by WW1. 17. The testimony of WW2 goes unrebutted, unchallenged and uncontroverted as there is no crossexamination of WW2 at all. Hence, the testimony of WW2 is deemed to be admitted by the managements. 18. As noted above, although the managements filed an affidavit of Sh. [ENTITY], the witness did not appear for his crossexamination. Hence, the affidavit cannot be read. The result is that no evidence has been led by both the managements. 19. In [PRECEDENT], the Hon'ble Supreme Court held as follows: "It is thus well settled law that right to life enshrined under [SECTION] of the [ACT] would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardizing not only his /her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable DID 21/07 14/30 opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice." (underlining by me) 20. In [PRECEDENT], Hon'ble Delhi High Court held as follows: "It is settled legal position that the abandonment of service cannot be readily inferred. Abandonment of service is a question of intention which can be gathered from the totality of the facts and circumstances of each case. There has to be a clear evidence on record to show that despite grant of reasonable opportunity to the employee by the management, he failed to join back his duties without any sufficient reasons and therefore in the absence of any such cogent and convincing evidence, voluntarily abandonment on the part of the employee cannot be readily inferred None of these letters were sent by the respondent management
through registered AD and on the other hand the petitioner sent a demand notice dated 21.7.1992 through registered AD which was replied by the respondent management vide their reply dated 24.8.1992 wherein the respondent management also gave reference of the above said letters sent to the petitioner by [ACT]. The petitioner in his rejoinder dated 3.9.1992 clarified to the respondent management that such letters were never received by him. The petitioner also sought to castigate the respondent in adopting dubious means in obtaining some certificates of posting from the post office to prove service of the said letters. No doubt that under [SECTION] of the [ACT] service through [ACT] does give rise to a presumption but certainly service through [ACT] is a frail piece of evidence. The respondent management has failed to prove on record any dispatch register or any other documentary evidence to show that the said letters were dispatched by the respondent management in their normal and ordinary course of business. The petitioner who had put in 16 years of long service is not expected to be thrown out of employment just based on three [ACT] letters purported to have been sent to him requiring him to join back his duties, he would not have sent demand notices just within a period of one anda half month of his termination and immediately thereafter having raised an industrial Dispute.
10. Hence, the totality of the facts do not justify that in the aforesaid back drop of the circumstances the petitioner would have drop of the circumstances the petitioner would have voluntarily abandoned his services. It is not in dispute that the respondent did not issue any memo or set up an enquiry for the unauthorized absenteeism of the petitioner from his duties and it is quite evident that with the help of such [ACT] letters the respondent prepared the ground to circumvent the legitimate rights of the petitioner "
(underlining by me.)
21. In [PRECEDENT], Hon'ble Delhi High Court held as follows : "As far as the case of abandonment is concerned, the counsel for the respondent No.1 workman has drawn attention to the cross examination of the witnesses of the petitioner in which it is admitted that no letter or notice asking the respondent No.1 workman to join back was issued. The case of the petitioner is of abandonment with effect from 1st May, 1966. The case of the respondent No.1 workman is of having not been allowed to work since 1st May, 1996. It is admitted that the respondent No.1 workman at least on 10 th December, 1996 called upon the petitioner to allow him to work. Had the respondent No.1 workman abandoned services, the petitioner instead of opposing the same would have allowed him to join considering the short time within which the said demand was made. Moreover, it has been held in [PRECEDENT] that for abandonment also a proper enquiry has to be made and which admittedly has not been done in the present case."
(underlining by me)
22. It is clear from the authorities that abandonment of service by an employee is not to be readily assumed and that abandonment is a question of intention to be found from the totality of the facts and circumstances of the case and that for abandonment, a proper enquiry has to be made by the management giving the employee an opportunity to put forward his case/reason for his absence.
23. As noted above, it is nowhere the case of the management that it conducted any domestic enquiry against the workman for her alleged absence or even that it issued any notice calling upon her to resume her duties. Further, although it is stated in the written statement that management offered employment to the workman in the conciliation proceedings, no evidence has been led by the management at all.
24. As noted above, in her affidavit filed as examinationinchief, the workman relied upon a number of documents from Ex. WW1/1 to Ex. WW1/22. The testimony of the workman in respect of these documents goes unrebutted, unchallenged and uncontroverted as there is no cross examination of the workman in respect of these documents. Hence, all these documents stand proved on record. The documents include Ex. WW1/5 which is a complaint sent by the Shahdara General Udyog Shramik Union (Regd.) on behalf of the workman and certain other persons to the Labour Department in respect of illegal termination of the workman on 23.10.2006. The complaint Ex.WW1/5 is dated 03.11.2006 i.e. within 11 days from the date the services of the workman were allegedly terminated. The documents also include Ex. WW1/6, which is a demand notice on behalf of the workman and certain other persons forwarded by Sh. [ENTITY], Secretary of the union to the managements. This demand notice is dated 03.11.2006 i.e. within 11 days of the alleged termination. As noted above, it is not disputed between the parties that conciliation proceedings were initiated by the workman against the managements. The present claim was filed on 17.02.2007 i.e. within less then four months from the date of alleged termination. Hence, prompt action has been taken by the workman which clearly shows that she was very much interested in doing the job. Significantly, in her crossexamination, no suggestion was given to the workman that she was offered job before the Conciliation Officer.
25. As noted above, in her claim, the workman has contended that she joined the management w.e.f. 15.03.1999. On the other hand, the case of the management is that she joined w.e.f. November, 2002. As noted above, in her examinationinchief, the workman herself relied upon the [ACT] card as Ex. WW1/18. This card shows the date of appointment as 05.11.2002. Even Ex. WW1/19 to Ex. WW1/22 does not contain any PF receipt prior to the year 2002. Although, in the claim, it was specifically stated by the workman that her signatures were obtained by the management on blank documents showing that she joined the management at a later date then the date on which she actually joined, significantly, this fact is not stated in the affidavit. As noted above, in her cross examination, the workman stated that no complaint was filed by her with the police / labour authorities regarding obtaining of her signatures on blank papers by the management. Hence, this plea of the workman is rejected.
26. It was contended by Ld. ARW that he filed an application seeking a direction to managements to produce attendance register, wages register, bonus register, leave register, balance sheet, cash book and ledger, all from the year 1995 to 2007. His contention is that adverse inference should be drawn against the managements for nonproduction of the aforesaid records. The record reveals that certain records were brought by the managements on 30.11.2009 and 26.02.2010, which were shown to ld. ARW. Thereafter, the application was never pressed by ld. ARW. No direction was ever given by this Court to the managements to produce any of the records sought to be summoned by the claimant. Hence, no adverse inference can be drawn against the managements and thus, the contention of Ld. ARW in this regard is rejected.
27. I have carefully gone through the authorities relied upon by ld. ARW. There cannot be any dispute with regard to the propositions of law laid down in the authorities, but it is a settled law that each case is to be decided according to its own facts. I am of the view that facts in the present case are materially different from those in the authorities. As noted above, in the present case, no directions to produce documents were ever passed by this Court. On the contrary, the management itself produced the summoned record and thereafter, the application was not pressed by ARW. This was not so in any of the authorities relied upon by Ld. ARW. Hence, with great respect, I am of the view that none of the authorities relied upon by Ld. ARW is applicable to the facts of the present case.
28. In view of the above discussion, it is held that the workman joined the management w.e.f. 05.11.2002 only.
29. It is difficult to believe that the workman, having worked with management No. 1 for almost four years, herself stopped coming to do her duties particularly when, admittedly, prompt action has been taken by her and no enquiry, admittedly, has been conducted by the management into her alleged absence. Despite service of Ex. WW1/6, she was not allowed to join her duties. Hence, I am of the view that the aforesaid authorities are squarely applicable to the facts of the present case.
30. During the arguments, it was contended by Ld. [ENTITY] that the factum of termination of her services has not been mentioned by the workman in Ex. WW1/1 as well as in the legal notice Mark A which both are dated 23.10.2006 i.e. the date of alleged termination. The contention of Ld. [ENTITY] is that this fact itself shows that services of the workman were never terminated by the management and that she herself stopped coming to the job. In his reply / arguments, Ld. ARW merely stated that this facts is irrelevant. While it is true fact that the factum of termination is relevant, I am of the view that the fact that factum of termination has not been mentioned in those two documents loses its bite in view of other evidence placed on record by the workman which clearly shows that she has approached the authorities against her alleged termination promptly. Admittedly, the workman never worked with the management after 23.10.06. Whereas the contention of the workman is that her services were terminated, the contention of the managements is that she herself stopped coming. As noted above, service of legal notice by the workman is not disputed by the managements. Although, the managements have stated in the written statement that the notice was replied, no copy of the reply has been placed on record, much less proved. Further, it is nowhere the case of the management that it asked the workman to join her duties in its reply to the notice or even otherwise, called her to join her duties or conducted any domestic enquiry against her, as required by law. Significantly, in their written arguments, the managements have submitted that accounts of the workman have been fully and finally settled. This contention is against the pleadings of the managements. No document has been placed on record by the managements in this regard, much less proved. Hence, the contention of Ld. [ENTITY] is rejected.
31. I have carefully perused the authorities relied upon by Ld. [ENTITY] that there cannot be any dispute about the propositions of law laid down in the authorities, but it is a settled law that each case is to be decided according to its own facts. None of the authorities relied upon by the management pertains to Labour Court. It has been held in [PRECEDENT] as follows :
"The provisions of the [ACT] per se are not applicable to an industrial adjudication. The general principles of it are, however applicable. It is also imperative for the Industrial Tribunal to see that the principles of natural justice are complied with. The burden of proof was on the respondent herein to show that he had worked for 240 days in preceding twelve months prior to his alleged retrenchment. In terms of [SECTION] of the [ACT], an order retrenching a workman would not be effective unless the conditions precedent therefore are satisfied. [SECTION] postulates the following conditions to be fulfilled by employer for effecting a valid retrenchment:
(i) one month's notice in writing indicating the reasons for retrenchment or wages in lieu thereof;
(ii)payment of compensation equivalent to fifteen days, average pay for every completed year of continuous service or any part thereof in excess of six months."
(underlining by me)
32. It is clear from the authority that [ACT] is not strictly applicable to the proceedings before the Labour Court. Even otherwise, all the authorities pertain to the mode of proof only. Hence, with great respect, I am of the view that none of the authorities relied upon by the management is applicable to the facts of the present case.
33. In view of the above discussion, I have no hesitation in holding that the workman was not voluntarily absenting from the services of the management and that her services have been terminated by the management.
34. It is nowhere the case of the management that it complied with [SECTION] of the Act while terminating / retrenching the services of the workman. Hence, there cannot be any doubt that the termination of the services of the workman is in violation of [SECTION] of the Act and is, therefore, illegal and unjustified.
35. However, as far as violation of [SECTION] alleged by the workman is concerned, neither in the claim nor in the rejoinder, nor even in her affidavit filed as examinationinchief, the workman has given particulars of any person junior to her retained by the management at the time of her alleged termination or who was engaged by the management after her termination. Hence, it is held that the workman has failed to prove violation of [SECTION] of the Act.
36. The effect of the illegal termination shall be considered while deciding issue No. 3.
37. In view of the above discussion, both the issues are decided in favour of the workman and against the managements. ISSUE NO. 3.
38. It has been held by Hon'ble Supreme Court in [PRECEDENT] as follows :
"15. It would be, thus, seen that by catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of [SECTION] although may be set aside but an award of reinstatement should not, however, be automatically passed "
(underlining by me)
39. It is clear from the authority that reinstatement is not automatic even if the order of termination / retrenchment is held to be bad.
40. MW [ENTITY], in his affidavit filed as examinationinchief, has stated that the management has closed down its manufacturing activities w.e.f. 30.05.2008, although this fact has not been proved. Further, the workman has worked with the management for a period of less than four years. It is almost seven years since the date of her termination. Keeping in view the totality of the facts and circumstances of the case, I am of the view that it is not a fit case to grant reinstatement to the workman and thus the workman is entitled to compensation only in lieu of reinstatement.
41. In the claim, the workman has claimed her last drawn wages to be Rs.2,700/ per month. In their written statement, the managements have submitted that the last drawn wages of the workman were Rs.3,300/ per month. There cannot be any doubt that relief can be given to the workman only on the basis of the last drawn wages claimed by her i.e. on the basis of Rs.2,700/ per month. Hence, it is held that the last drawn wages of the workman were Rs.2700/ per month.
42. In the claim, it is specifically stated by the workman that she is unemployed since the date of her termination despite her best efforts. In the written statement, the managements have submitted that the workman is gainfully employed with some other employer. No particulars of any such employer have been given in the entire written statement by the managements. In her affidavit filed as examinationinchief, the workman again specifically stated that she is unemployed since the date of her termination despite her best efforts. In her cross examination, she stated that she has three children, out of which, two daughters are married and that she is residing in the rented house and that her household expenses are about Rs.7,000 - Rs.8,000/ per month. She denied that she is employed and earning Rs.8,000/ per month and that she is maintaining the household expenses. As noted above, the management filed an affidavit of Sh. [ENTITY] as examinationin chief. Since this witness did not appear for his cross examination, the affidavit cannot be read in favour of the managements. However, there cannot be any doubt that it can be read in favour of the workman. In the entire affidavit of Sh. [ENTITY], it is not stated that the workman is gainfully employed anywhere. Keeping in view the totality of the facts and circumstances of the case, I am of the view that it stands established on record that the workman is unemployed since the date of her termination despite her best efforts.
43. Keeping in the view the totality of the facts and circumstances of the case, I am of the view that interest of justice is best served if the workman is given compensation of Rs.1,00,000/ (Rupees One Lac Only) in lieu of reinstatement. The managements shall also pay an amount of Rs.11,000/ (Rupees Eleven Thousand Only) as costs of these proceedings.
44. However, a perusal of the record shows that costs were imposed on the managements several times which have not been paid by them. A cost of Rs.2,000/ (Rupees Two Thousand Only) was imposed on 30.08.2012, a cost of Rs.5,000/ (Rupees Five Thousand Only) was imposed on 30.10.2012 and a cost of Rs. 6,000/ (Rupees Six Thousand Only) was imposed on 20.12.12. During the arguments, it was contended by Ld. [ENTITY] that the leading of evidence by the managements was made subject to these costs and, at best, the evidence of the managements can be closed for non payment of these costs and, thus, the managements are not required to pay these costs. I do not find any merits in the contention. The costs were adjournment costs which have to be paid by the managements.
45. The management No. 1 is directed to pay the aforesaid amount of Rs.1,00,000/ (Rupees One Lac Only) and both the managements are directed to pay the aforesaid amounts of Rs.11,000/ (Rupees Eleven Thousand Only) and Rs.13,000/ (Rupees Thirteen Thousand Only) total Rs.24,000/ (Rupees Twenty Four Thousand Only) to the workman within one month from the date of publication of this award failing which they shall be liable to pay interest @ 9% per annum on all the amounts from today till realization. The claim is, thus, allowed.
46. The requisite number of copies of this award be sent to the Government of NCT of Delhi for its publication. File be consigned to Record Room.
Dictated to the Steno and announced in the open Court on 07.10.2013. ([ENTITY]) POLCXVII/KKD/DELHI