1 IN THE COURT OF SH. [ENTITY]: PRESIDING OFFICER, LABOUR COURT NO. XVII, KARKARDOOMA COURTS, DELHI . DID NO. 734/06 BETWEEN The [ENTITY] Sh. [ENTITY] S/o Sh. Chandrika Singh C/o Delhi General Mazdoor Front, B. K. 1/33B, Janta Flat, Shalimar Bagh, Delhi- 110088. AND The management of M/s Gurukripa Steel Udyog C-60/3, Wazirpur Industrial Area, Delhi- 110052. AWARD 1.
[ENTITY] has filed statement of claim under [SECTION] of [ACT] on 29.03.2005 stating therein that he has been employed with the management since 1997 as a Power Press Man and his last drawn wages were Rs.3850/- per month and the workman was working sincerely and diligently to the satisfaction of management and never gave any chance of complaint to the management. The management is being operated by power and about 150 employees have been working with the management in two shifts. The management used to take 4 hours extra overtime work from the management but management was not making payment of overtime wages. It is stated that management is also running its establishment in two different names i.e. M/s Hari Om Steel Udyog and M/s Hemant Steel Udyog at aforesaid address although the workmen as well as the management are the same. The management has not issued letter of appointment to the workman and the management was not maintaining the attendance register, leave book and facility of provident fund and bonus was not being provided to the workman. The workman joined Delhi General Mazdoor Front Union to fight for his demands on which management got annoyed. On 27.01.2005 the workman went to his native village with prior permission of the management and on coming back on 14.02.2005 he reported to management for duty but management refused to assign him duty and the services of workman were termination without issuing any notice or charge sheet. The workman made complaint dt. 04.03.2005 to the Labour Authorities through union and the workman sent notice of demand dt. 04.03.2005 to the management through union but the workman was not reinstated. The workman is unemployed since the date of termination of his services. It is prayed that an award be passed thereby reinstating the workman in service with full back wages and continuity of service.
2. The notice of statement of claim was issued to the management but the management failed to appear despite service and was proceeded ex- parte by my Ld. Predecessor vide order dt. 08.09.2005 and the case was fixed for ex-parte evidence of workman.
3. In support of his case workman examined himself as WW1 and Sh. [ENTITY], Assistant, ESI Corporation as WW2 and WE was closed.
4. I have heard AR for workman and carefully perused record.
5. The case of the workman is that he has been in the employment of management since 1997 as Power Press Man and on 27.01.2005 he went to his native village with prior permission of the management and when he came back he approached the management for job on 14.02.2005 but management refused to assign him duty and thereby terminated his services. To prove his case workman examined himself as WW1 and adduced evidence by way of affidavit Ex. WW1/A. The workman has relied on copy of the notice dt. 04.03.2005 issued to the management by Delhi General Mazdoor Front Union (Regd.) Ex. WW1/1, postal receipt Ex. WW1/2, AD card Ex. WW1/3, copy of complaint dt. 04.03.2005 made to Assistant Labour Commissioner by Delhi General Mazdoor Front (Regd.) Ex. WW1/4, copy of the return of contributions filed by M/s Gurukripa Steel Udyog with ESI Corporation for the period from October 2000 to March 2001Ex. WW1/5, copy of ESI card Ex. WW1/6, report of Labour Inspector Ex. WW1/7. WW2 proved returns of contributions filed by M/s Gurukripa Steel Udyog with ESI Corporation for the period from October 1999 to March 2000 Ex. WW2/2, April 2000 to September 2000 Ex. WW2/3, April 2001 to September 2001 Ex. WW2/4, April 2002 to September 2002 Ex. WW2/5, October 2002 to March 2003 Ex. WW2/6, April 2003 to September 2003 Ex. WW2/7, October 2003 to March 2004 Ex. W2/8, April 2004 to September 2004 Ex. WW2/9, October 2004 to March 2005 Ex. WW2/10, April 2005 to September 2005 Ex. WW2/11 and October 2005 to March 2006 Ex. WW2/12. As per Ex. WW2/7 to Ex. WW2/10 the workman has been in the continuous employment of management and he has worked continuously for 240 days in the year preceding his termination. Ex. WW2/10 is the return of contributions filed by management with ESI Corporation for the period from October 2004 to March 2005. The allegation of the workman is that his services were terminated on 14.02.2005 without issuing any notice or charge sheet and without complying with the provisions of [SECTION] of [ACT]. The name of the workman is not mentioned as employee of management in Ex. WW2/11 which is the return of contribution filed by management with ESI Corporation for the period from April 2005 to September 2005 which shows that the name of the workman has been deleted from the rolls of the management after March 2005.
6. In the affidavit Ex. WW1/A workman has stated that his services were terminated by management on 14.02.2005 and he sent notice dt. 04.03.2005 to the management which is Ex. WW1/1 vide postal receipt Ex. WW1/2 and the same was delivered to the management and the AD card in respect of delivery of notice to the management is Ex. WW1/3. The contents of of affidavit of workman Ex. WW1/A have remained unrebutted. The workman has proved that he has worked continuously for 240 days with the management in the year preceding his termination and that his services have been terminated by the management on 14.02.2005 without compliance of provisions of [SECTION] of [ACT].
7. 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.
8. 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".
9. 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]."
10. 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.
11. In para 10 of statement of claim and in para 11 in the affidavit Ex. WW1/A the workman has stated that he has been regularly approaching the management for reinstatement in service but he has not been reinstated and he could not get alternate employment despite best efforts to get the alternate employment. Although, the workman has stated that he could not get alternate employment despite efforts made by him but the workman has nowhere stated that he had approached some other managements and he could not get employment there and the workman has also not stated the name of the managements which were visited by him for employment and the workman has not proved on record any copy of the application which was sent by him to any other management for employment. The workman has also not proved that in the absence of any employment how he was sustaining himself and his family. In these circumstances it cannot be said that workman might have remained wholly unemployed during the intervening period, however, the management has failed to rebut the plea of the workman that he has not been employed in any establishment after his disengagement from the management. In the circumstances workman shall be entitled to reinstatement in service and back wages @ 50% of his salary for the intervening period i.e. from the date of disengagement of his service on 14.02.2005 till his reinstatement. Award passed accordingly. Copies of the award be sent to appropriate Government for publication as per law. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT TODAY i.e. ON 29.05.2007.
([ENTITY]) PRESIDING OFFICER LABOUR COURT NO. XVII KARKARDOOMA COURTS, DELHI 29.05.2007 After lunch Pr. None.
Award dictated and announced separately.
Copies of award be sent to appropriate Govt. for publication in accordance with law. File be consigned to record room.
POLC/29.05.2007