IN THE COURT OF SH. [ENTITY], ADDL. DISTRICT & SESSIONS JUDGE, POLCV: RACC : DELHI NEW DID NO : 132916 In the matter of : Mrs. [ENTITY] W/O Sh. Kelleth Solomen R/O 119B, DDA Flats, Behind Mandakini Apartment, Pitam Pura, Delhi110034. Claimant Versus Travel Corporation (India) Ltd. C35, Connaught Place, New Delhi110001. Management Date of Institution : 08.04.2009 Date of pronouncement : 19.10.2019 AWARD This is a direct Industrial Dispute filed by the claimant against his alleged termination from the services. PARTA REFERENCE/CLAIM 1. As per the claimant she was employed with the management since 16.04.1995 on the post of Telephone Operator. 2. The claimant had made many submissions in the claim petition [CASE NUMBER] 1/16 w.r.t. the working of the management, its business, its being taken over by the other entities but only relevant submissions are being reproduced herein which are necessary for the disposal of issue in hand. 3. As per the claimant, the management was taken over in 2006 by Thomas Cook India Ltd. and in 2008 Thomas Cook UK Ltd. purchased majority share holding of M/s Thomas Cook India Ltd. and accordingly, the present management became a sub subsidiary company of Thomas Cook UK Ltd. 4. It is submitted that the claimant was part of a Trade Union which fact was not liked by the management M/s Thomas Cook India Ltd. after it took over the original management and accordingly, it started discriminating between the union member and non union member employees. 5. Against the said discriminating attitude, proceedings were raised before the Conciliation Officer and during the course of the same a settlement was entered into between the union and management effective from 01.05.2007 and valid till 30.04.2010 whereby it was agreed that the management would protect the interest of workers and will not affect service conditions of original workers. 6. It is also submitted that contrary to the said settlement, the management continued to pressurize the union employees to resign from the job and on their failure to do the same, on [CASE NUMBER] 2/16 07.11.2008 the claimant's services were terminated vide letter of the even date. 7. Hence, feeling aggrieved the present petition has been filed for setting aside the said termination of the claimant and thereby seeking the relief of reinstatement with consequential benefits. PARTB MANAGEMENT'S STAND/REPLY 8. Again the management has made too many submissions but only the one relevant for the purpose of deciding the dispute in hand are being discussed. 9. It is claimed that the services of certain employees were found to be surplus to the requirement of the management and accordingly, by adopting the rule of "last come first go", the management has retrenched the services of claimant along with other employees in terms of provisions of [SECTION] of the [ACT]. PARTC ISSUES 10. From the pleading of the parties the following issues were framed vide order dated 30.09.2009 : a) Whether the services of the workman have been terminated illegally and/or unjustifiably by the management? b) Relief. [CASE NUMBER] 3/16 [ENTITY]'S EVIDENCE 11. In support of her claim claimant examined herself as WW1 and deposed along the lines of statement of claim and also proved on record the documents in support of her case. 12. She was cross examined at length but during the course of her entire cross examination not even a single question was put to her w.r.t. her position in the seniority list w.r.t. her category of Telephone Operator, regarding her place of posting of Delhi nor any seniority list was put to her in this respect. 13. The only suggestion w.r.t. a seniority list [ENTITY] having been put by the management on the notice board prior to her retrenchment stand denied by her. PARTE MANAGEMENT EVIDENCE 14. The management examined Sh [ENTITY], its official as MW1 who also deposed on the lines of the defence taken in the reply to the claim petition and also proved on record the various documents including a photostat and that too almost illegible copy of a so called seniority list of the employees employed at Delhi branch as [ENTITY] consisting of two pages. 15. He has failed to prove on record that infact the management did follow the rule of "last come first go" w.r.t. the retrenchment of [CASE NUMBER] 4/16 the employees of category of Telephone Operator on which the claimant was working prior to the termination of services of the claimant. 16. However, during the course of his cross examination he admitted that at the time of termination of claimant 23 other employees were also working on the very same post of Telephone Operator as of the claimant. PARTF FINDINGS/CONCLUSION 17. After considering the claim, reply, documents and the evidence led on record, the issue wise decision of the court is as under : ISSUE No.1 : Whether the services of the workman have been terminated illegally and/or unjustifiably by the management? 18. As already discussed in Part A and Part B above, the claimant has made submissions wr.t. being discriminated on account of being a member of the Union as well as non adherence of the terms and conditions of the settlement arrived at between the union and management BUT the same being irrelevant for the purpose of deciding the dispute in hand, the court has not discussed the same. 19. In the considered opinion of this court, the sole issue is as to whether the exercise of retrenchment undertaken by the management which also involves retrenchment of the services of [CASE NUMBER] 5/16 claimant is justified in terms of the provisions of [ACT] in this respect or not. 20. For this purpose, the provisions of [SECTION]G of [ACT] are relevant which are reproduced as under : "Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman." 21. It is also the submission made by the management in its WS that while doing the exercise of retrenchment of the services of category of the employees holding the post of Telephone Operator (the post the claimant was holding), it did follow the rule of "last come first go". 22. Accordingly, the onus was upon the management to prove that it did follow the said rule. 23. The question as to whether any seniority list w.r.t. the category of employees holding the post of Telephone Operator was infact ever prepared by the management or not is of utmost relevance. 24. As already discussed and noted in Part E above, the [CASE NUMBER] 6/16 management has not made even a single effort during the course of its evidence to prove this thing. 25. Infact the management has even failed to produce any record pertaining to the employees holding the post of Telephone Operator in Delhi branch in which the claimant was posted. 26. The management has simply placed reliance upon a photostat and that too almost illegible copy of a so called branchwise categorywise list of employees based on seniority which is marked as [ENTITY]. 27. The said [ENTITY] is a consolidated list w.r.t. all the employees posted at Delhi branch. 28. Accordingly, the court itself has undertaken the exercise in this respect. 29. Before proceeding further it is pertinent to hold that the said [ENTITY] cannot be relied upon as the same stand not proved in terms of the provisions of [ACT] as original of the same and the basis of drawing the said list has not been proved by the management. 30. Still for the purpose of discussion, the court has been able to infer that only the claimant has been shown to be holding the post of Telephone Operator in the said [ENTITY]. 31. However, as already noted in Part E above, contrary to the said list [ENTITY], the MW1 deposed during the course of his cross examination that as on the date of retrenchment of services of [CASE NUMBER] 7/16 the claimant, 23 other persons were also holding the very same post of Telephone Operator. 32. Accordingly, seen in the light of said testimony of MW1 it can be safely stated that the said so called seniority list [ENTITY] cannot be relied upon as except claimant no other person has been shown to be holding the post of Telephone Operator in the said list. 33. Hence, the said list [ENTITY] besides on other ground, also stand rejected in view of the contrary testimony of MW1. 34. Accordingly, in these circumstances, it is very much clear that the management has miserably failed to prove that it did comply with the provisions of [SECTION]G of the [ACT] in following the rule of "last come first go" prior to retrenching the services of the claimant. 35. The above finding of the court also gets support from the judgment of Hon'ble Supreme Court of India in the matter titled as [PRECEDENT] having the relevant para bearing No.46 to 52 reproduced herein as under : "46. The learned Senior Counsel for the appellant Company further contended that violation of the above statutory provisions of the [ACT] and the infraction of the same on the part of the appellant Company in retrenching the [CASE NUMBER] 8/16 workmen concerned must have been pleaded and proved by them, which has not been done by them in the instant case, and therefore, the finding recorded by the Industrial Court is wholly erroneous in law and the same is liable to be set aside. He further contended that the said finding of the Industrial Court has been erroneously accepted by the Division Bench of the High Court without examining the case in proper perspective and erroneously rejected the contention of the appellant Company as the same is devoid of merit. He further placed reliance upon the decision of this Court on [PRECEDENT], in support of his contention wherein this Court has observed that the complainant must set out in the first instance the deviation to show that the management has committed unfair labour practice and only then the other party be asked to lead evidence to rebut the same. 47. It is very clear that the averments of the appellant Company in its written statement that its action in retrenching the workmen is sought to be justified before the Industrial Court, which, in fact, is not justified on the basis of evidence on record. It is clear from the pleadings at Paras 3 and 4 of the written statement filed by the appellant Company before the Industrial Court which would clearly show that the action of the appellant Company is a clear case of mala fides which cannot be sustained in law. Further, there are no valid reasons assigned in the [CASE NUMBER] explanatory note to justify the action of the Company in not following the principle of "last come first go" as mandated under [SECTION]G of the [ACT] read with [SECTION] of the [ACT] to retrench the workmen concerned who are seniors to the workmen who were retained in the department. At the time of filing written statement by the appellant Company before the Industrial Court, no reason was assigned in retaining junior workmen to the workmen concerned in the department. For the reasons recorded above, we have to hold that the concurrent finding of fact recorded by the High Court with regard to noncompliance with [SECTION]G of the [ACT] by the appellant Company is also the statutory violation on the part of the appellant Company in retrenching certain senior workmen concerned. Therefore, the courts below have rightly answered the issue against it. Hence, the same cannot be termed as erroneous for our interference with the same. 48. The principle of "last come first go" should have been strictly adhered to by the appellant Company at the time of issuing retrenchment notice served upon the workmen concerned as provided under [SECTION]G of the [ACT] read with [SECTION] of the [ACT] which is not properly complied with by it for the reason that the custom clearance and dock clearance are totally different departments and it has retained 7 workmen who are undisputedly junior to the workmen concerned, which action is sought to be justified by [CASE NUMBER] 10/16 the appellant Company without giving justifiable reasons. Further, no categorywise seniority list of the workmen was displayed on the noticeboard of the appellant Company as required in law. 49. The learned Senior Counsel on behalf of the appellant Company placed reliance on the decision of this Court rendered in [PRECEDENT], in justification of the action of the appellant Company retaining certain junior workmen in the department/unit at the time of retrenching workmen concerned. The relevant paragraphs are extracted hereunder : (SCC pp.40910 paras 56) "5. The keynote thought of the provision, even on a bare reading, is evident. The rule is that the employer shall retrench the workman who came last, first, popularly known as "last come first go". Of course, it is not an inflexible rule and extraordinary situations may justify variations. For instance, a junior recruit who has a special qualification needed by the employer may be retained even though another who is oneup is retrenched. There must be a valid reason for this deviation, and, obviously, the burden is on the Management to substantiate the special ground for departure from the rule. 6. Shri [ENTITY] brought to our notice the decision in [PRECEDENT] to make out that it was not a universal principle which could not be departed [CASE NUMBER] 11/16 from by the Management that the last should go first. The Management had a discretion provided it acted bona fide and on good grounds. [ENTITY], J., in that very ruling, while agreeing that a breach of the rule could not be assumed as prompted by the mala fides or induced by unfair labour practice merely because of a departure or deviation, further observed that the tribunal had to determine in each case whether the Management had acted fairly and not with ulterior motive. The crucial consideration next mentioned by the learned Judge is that the Management's decision to depart from the rule must be for 'valid and justifiable reasons', in which case the senior employee may be retrenched before his junior in employment. Surely, 'valid and justifiable reasons are for the Management to make out' and if made out, [SECTION]G will be vindicated and not violated. Indeed, that very decision stresses the necessity for valid and good grounds for varying the ordinary rule of 'last come first go'. There is none made out here, nor even alleged, except the only plea that the retrenchment was done in compliance with [SECTION]G gradewise. Absence of mala fides by itself is no absolution from the rule in [SECTION] Affirmatively, some valid and justifiable grounds must be proved by the Management to be exonerated from the 'last come first go' principle. 50. The learned Senior Counsel further contended that the above legal principle is also laid down in [PRECEDENT], wherein this Court has held that breach of [SECTION]G of the [ACT] would not per se make the action of the Company mala fide and as such, the action of the appellant Company in issuing retrenchment notice to the workmen cannot be quashed ipso facto. The learned Senior Counsel contented on behalf of the appellant Company that in the present case, the principle laid down in Om Oil & Oil Seeds Exchange case referred to supra is aptly applicable to the case on hand. 51. We are of the opinion that the High Court has rightly held that the ratio of the said case cannot be disputed, however, the facts of that case and facts of the case on hand are totally different. In Om Oil & Oil Seeds Exchange case, it was established by the employer that the clerk working in a particular branch of the business had shown particular aptitude performance and considering the said performance and his expertise, the management felt in the interest of business to retain him though he is junior to other retrenched workmen, therefore, the same was held to be valid in law. The High Court has rightly held in the impugned judgment and order that in the instant case the appellant Company had not adduced any such evidence or reasons of jurisdiction for retaining the junior workmen to the retrenched workmen. The reason assigned by the appellant Company is considered by the Industrial Court and held that there was a clear breach of [SECTION]G of the [ACT] read with [SECTION] of the [ACT] in not following the principle of "last come first go". The legal principle laid down in this aspect in Jorehaut Tea Co. does not apply to the fact situation of the case on hand, as the appellant Company has not published the seniority list at all on its noticeboard, which is the concurrent finding of fact of the High Court. The same cannot be termed erroneous as it is based on legal evidence on record. It is for the appellant Company to establish as to whether there is a deviation of the above principle or not by producing justifiable and valid reasons but it has failed to do so by producing cogent evidence on record. Therefore, reliance placed upon the aforesaid judgments of this Court by the learned Senior Counsel for the appellant Company are misplaced as they are not applicable to the fact situation on hand as the facts of those cases are distinguishable from the facts of this case on hand. 52. Further, the contention urged by the learned Senior Counsel on behalf of the Company that the allegation of contravention of [SECTION]G of the [ACT] is not sufficient to hold that the "last come first go" principle is not followed by the Company unless the necessary material particulars in this regard are pleaded and proved by the workmen. This contention in our view is wholly untenable in law and cannot be accepted by this Court. The respondent Union
had laid factual foundation in this regard and proved the same by adducing evidence on record."
36. Having held so, the mere fact that the management has paid one month notice pay as well as paid compensation in terms of the provisions of [SECTION] of the [ACT], cannot be read in its favour as in the absence of non compliance of the provisions of [SECTION]G of the [ACT] the said payment is inconsequential.
37. Accordingly, in these circumstances, issue no.1 is held in favour of the claimant holding that the services of the claimant have been terminated by the management illegally and unjustifiably.
ISSUE No.2 : RELIEF
38. In view of the outcome of issue no.1, the claimant is held entitled to the relief of reinstatement with full backwages at the rate of minimum wages as applicable in the case of a skilled worker from time to time if the actual wages are lower than that and in case the actual wages are higher than that, at the rate of actual wages, along with continuity of services and all other consequential benefits besides a compensation of Rs.5 lacs towards harassment, illegal termination and legal cost.
39. Furthermore, out of the amount payable to the claimant in terms of the above relief, the amount already paid to the claimant at the time of her illegal retrenchment be deducted by the management without any interest portion.
40. In case the management fails to give effect to the award within 30 days from the date of publication of the same, claimant is also entitled to simple interest @9% p.a. on the amount payable to her till the date the same is actually paid.
41. Ordered accordingly.
42. Let copy of the award be sent to the appropriate Govt for its publication as per rules.
File be consigned to record room.
Announced in the Open Court ( [ENTITY]) th On 19 Oct., 2019 ADDL. DISTRICT & SESSIONS JUDGE, PRESIDING OFFICER LABOUR COURTV, RACC/DELHI [ENTITY]