Delhi District CourtSh. Parsu Ram Yadav vs Ganga Enterprises on 25 April, 20091

               IN THE COURT OF SHRI GIRISH KATHPALIA;
                PRESIDING OFFICER; LABOUR COURT XIX;
                    KARKARDOOMA COURTS; DELHI

LIR  NO.300/08

           SH. PARSU RAM YADAV
           C/o ENGINEERING AND 
           ALLIED MAZDOOR UNION
           1/2431­A, MODERN SHAHDARA,
           RAM NAGAR,
           DELHI­32                                                                    ...WORKMAN

vs.

           GANGA ENTERPRISES,
           1557/15­A, EAST ROHTAS NAGAR,
           SHAHDARA,
           DELHI­32                           ...MANAGEMENT


                                          Date of reference: 19.01.1993
           Date of taking up the matter for the first time:  26.11.2008
                       Date of conclusion of arguments:  21.04.2009
                                                Date of award:  25.04.2009

Ref.No. F.24 (4685)/92­Lab 2815­20 dated 19.01.93

AWARD

1.On   being   satisfied     as   regards   existence   of   an

industrial dispute between the parties, the Secretary (Labour)

Government of NCT of Delhi in exercise of powers conferred by

Section 10(1)(c) andSection 12(5)of the Industrial Disputes Act

LIR   NO. 300/08                                                                           Page 1 of   17   pages2referred   the   present   dispute   to   the   Labour     Court   I   for

adjudication, from where it was transferred to this court with

the following terms of reference:"Whether   the   services   of     Sh.   Parsu
                     Ram   Yadav     have   been   terminatedillegally   and/or   unjustifiably   by   the
                     management and if so, to what relief
                     is he entitled and what directions are
                     necessary in this respect?"2.         Upon service of court notice workman filed a statement

of   claim   seeking   reinstatement   of   his   services   with   the

management with continuity and back wages. As pleaded by

workman he had been employed with the management since

01.07.85   as   supplyman,   his   last   drawn   monthly   salary   being

Rs.900/­.     When   workman   demanded   statutory   benefits   like

appointment   letter,   ESI   card,   PF   slip   etc.   management   got

annoyed   and   terminated   his   services   illegally   on   03.02.92.

Workman further pleaded that management had issued him a

false letter, to which he issued reply dated 17.02.92.     Despite

service of demand notice and intervention of labour authorities


LIR   NO. 300/08                                                                           Page 2 of   17   pages3management   did   not   reinstate   service   of   the   workman.   Ever

since   termination   of   his   services,   workman   is   unemployed

despite his best efforts.  Hence, this reference.3.         Management in their written statement pleaded that the

workman   was   engaged   by   them   for   delivery   of   cylinders   on

piece   rate   basis.     As   per   management,   they   issued   a

chargesheet dated  14.02.92  for acts of serious misconduct of

workman,   who   had   assaulted   the   lady   manager   of   the   firm.

Management   had   instituted   a   domestic   enquiry   against   the

workman,   conducted   by   Sh.   L.M.   Sabarwal   Advocate,   the

Enquiry   Officer.         After   conducting   an   exparte   enquiry,   the

Enquiry   Officer   delivered   findings,   thereby   holding   the

workman   guilty   of   charges   levelled   against   him.     After

considering   the   report   of   Enquiry   Officer,   management

decided to dismiss the workman from service.   Management

further pleaded that if this court reaches a conclusion that the

enquiry   conducted   by   them   was   not   fair   and   proper,

management be granted opportunity to prove charges in court.4.         Workman   filed   a   detailed   rejoinder,   denying   the

LIR   NO. 300/08                                                                           Page 3 of   17   pages4pleadings   of   the   management   and   reaffirmed   the   claim

contents.  Workman in his rejoinder pleaded that he was never

given   any   information   regarding   institution   and   conduct   of

domestic  enquiry against him.5.         On the basis of pleadings my ld. predecessor framed the

following issues:1. Whether fair and proper enquiry was held?2. As per terms of reference.While framing issues, my ld. predecessor held that issue no.1

shall be treated as preliminary issue.  In support of his case on

issue   no.1,   workman   appeared   as   his   solitary   witness   while

management examined two witnesses.  After hearing both the

sides   at   length,   vide   order   dated   30.03.09   it   was   held   that

workman   had   not   been     aware   about   name   of   the   enquiry

officer and/or date and/or venue of the enquiry proceedings,

since the proceedings had been conducted by the management

without issuing notice to him, and that had  violated his right to

be heard.  Holding the enquiry vitiated, issue no.1 was decided

in favour of workman vide order dated 30.03.2009 and in view

LIR   NO. 300/08                                                                           Page 4 of   17   pages5of   pleadings   of   the   management,   they   were   allowed

opportunity to prove in this court the alleged misconduct of

the workman.6.         Since   this   case   was   practically   the   oldest   case   of   this

court, vide order dated 30.03.09 it was directed to be listed on

day   to   day   basis   with   effect   from   04.04.09   onwards.   But

thereafter, despite repeated adjournments and on each date,

despite   repeated   pass   overs     till   post   lunch   session,   none

appeared   for   management,   though   workman   was   being

represented. Management opted not to appear even in the case

of the claimant's co­worker Rakesh Kumar (who also had been

dismissed   by   way   of   same   alleged   domestic   enquiry),   which

case   at   the   stage   of   arguments   on   enquiry   issue   thereof,

coincided   with   the   present   case   on   18.04.09.   Since

management   had   obtained   certified   copies   of   order   dated

30.03.09   as   reflected   from   record,   it   can   not   be   that

management was unaware about day to day listing of this case.

Inspite of that, matter was repeatedly adjourned for recording

management's  evidence on the alleged misconduct.   Finally,

LIR   NO. 300/08                                                                           Page 5 of   17   pages6when despite repeated opportunities and even imposition of

cost   neither   any   evidence   was   led   by   the   management   nor

anyone   on   their   behalf   appeared,   vide   order   dated   13.04.09

management was proceeded exparte.  Even thereafter, this case

was taken up on as many as seven dates but none appeared for

management.7.         At the stage of hearing arguments on issue no.1 it had

been   explained   to   both   the   sides   on   25.03.09   that   this   case

being   the   oldest   case   of   this   court   had   to   be   disposed   of

preferably in that month itself and with consent of both the

sides,   hearing   was   preponed   to   27.03.09   when   both   sides

appeared   and   concluded   arguments   on   issue   no.1.     Despite

that management opted to stay away from proceedings at the

stage of proving in court the alleged misconduct of workman.8.         Under these circumstances I have heard the authorised

representative   for   workman   and   perused   the   record.     My

findings on the remaining issue are as under:ISSUE NO.29.         In   support   of   his   case,   workman   subsequent   to   the

LIR   NO. 300/08                                                                           Page 6 of   17   pages7decision   on   issue   no.1   restepped   into   the   box   as   WW1   and

deposed   that   his   services   were   illegally   terminated   by   the

management   on   03.02.92;   on   14.02.92   he   received   by   hand

chargesheet dated 14.02.92 at gate of the factory, where he had

been regularly going since 03.02.92; on the basis of his reply

dated   17.02.92,   management   assured   to   take   the   workman

back   on   duty   but   the   same   was   not   done;   union   of   the

workman sat on  dharna  outside   the   factory with  effect from

16.04.92, in which a settlement dated 06.06.92 was arrived at

whereunder workman was to be paid wages for the period from

February 1992 to May 1992 at the rate of  Rs.1056/­ per month.

As   per   workman,   in   view   of   settlement   dated   06.06.92

management   had   no   right   to   hold   any   domestic   enquiry

against him but despite demand notice the management has

not   reinstated   his   services.     Workman   placed   on   record   his

documents   as   Ex.   WW1/1­13.     As   described   above,   none

appeared from management to cross examine the workman.10.        It would be pertinent to record that during the evidence

on enquiry issue, manager of the management had appeared in

LIR   NO. 300/08                                                                           Page 7 of   17   pages8the   box  as   MW1   to   depose   on   oath   the   validity   of   domestic

enquiry   conducted   against   the   workman.     In   her   chief

examination   affidavit,   MW1   also   alleged   that   there   were

complaints   against   the   workman  and   on   being   reprimanded

workman instigated other workers to stop work and when she

tried to take out a bicycle from godown, workman slapped her.

But   rest   of   her   detailed   chief   affidavit   pertains   only   to   the

validity and conduct of enquiry proceedings.   MW1 was cross

examined   at   length   but   only   pertaining   to   her   testimony   on

issue no.1 and understandably so, the learned cross examiner

opted   not   to   cross   examine   her   on   the   point   of   alleged

misconduct since the proceedings were limited at that time to

the   issue   of     validity   of   domestic   enquiry.     Subsequently,   as

described   above   while   recording   evidence   on   the   alleged

misconduct   MW1   did   not   restep   into   the   box   for   her   cross

examination   on   the   alleged   misconduct   of   the   workman

despite repeated adjournments.   Under these circumstances,

testimony of MW1 on the issue of alleged misconduct remains

inchoate and cannot be looked into.LIR   NO. 300/08                                                                           Page 8 of   17   pages911.        Management has, thus failed to establish the misconduct

alleged against the workman.12.        Since   no   notice   or   salary   in   lieu   thereof   and

compensation   was   paid,   termination   of   services   of   the

workman   by   the   management   was   clearly   in   violation   ofsection 25Fof the Industrial Disputes  Act and hence illegal and

unjustifiable.13.               As   such,     issue   no.   2   is   decided   in   favour   of   the

workman and it is held proved that services of the workmen

were   terminated   by   the   management   illegally   and

unjustifiably.RELIEF14.        During   arguments,   ld.   authorised   representative   for

workman   contended   that   this   is   a   fit   case   to   direct

reinstatement of services of the workman with full back wages.

Entire emphasis on behalf of workman was on the time spent

in   this   litigation   on   account   of   laxity,   if   not   deliberate

protraction   by   the   management.   Learned   authorised

representative for workman placed reliance on the judgments

LIR   NO. 300/08                                                                           Page 9 of   17   pages10of ISHWAR SINGH vs DTC, 1999  LLR 130;HINDUSTAN TIN

WORKS PVT. LTD. vs THE EMPLOYEES OF  HINDUSTAN TIN

WORKS   PVT.   LTD.,   Civil   Appeal656/68   decided   by   Hon'ble

Supreme Court; and NTC vs GURU NATH VITHAL, 1993 (66)

FLR 242.15.       As discussed hereafter, law pertaining to reinstatement

and   back   wages     has   undergone   considerable   change

subsequent to the judgments cited above.16.In   the   case   ofKISHAN   SWAROOP   vs   PROJECT   AND

EQUIPMENT CORPORATION OF INDIA LTD, 145(2007) DLT

603, Hon'ble Delhi High Court observed thus:"This   court   must   also   take   into
                                consideration   the   fact   that   over
                                the   past   decade,   the   law   as
                                regards   reinstatement   and   back
                                wages   has   undergone   sea
                                change,   the   position   now   being
                                that reinstatement and full back
                                wages   may   not   be   a   natural
                                consequence   in   all   cases   of
                                illegal   termination   of   services.LIR   NO. 300/08                                                                           Page 10 of   17   pages11Thus the labour court cannot be
                                faulted   in   molding   the   relief   by
                                directing payment of lump sum
                                compensation to be paid to the
                                petitioner   workman   in   lieu   of
                                reinstatement."17.           Hon'ble Supreme Court held in the case ofGENERAL

MANAGER   HARYANA   ROADWAYS   vs   RUDHAN   SINGH,   AIR

2005 SC 3966 that there is no thumb rule that in   every case

where termination of services is held to be violative ofsection

25Fof the Act, entire back wages should be awarded. What is to

be   seen   is   the   manner   and   method   of   selection   and

appointment, nature of appointment, any special qualification

required for the job and length and nature of employment.18.In the  case ofTELECOM DISTRICT MANAGER & ORS.

vs KESHAB DEB,  Civil Appealno. 3324/08 arising out of SLP(C)

no.   9494/04     decided   on   06/05/08,   Hon'ble   Supreme   Court

held as under:"19. Even in a case where an order of


LIR   NO. 300/08                                                                           Page 11 of   17   pages12termination   is   illegal,   an   automatic
                      direction   for   reinstatement   with   full
                      back   wages   is   not   contemplated.   He
                      was at best entitled to one month's pay
                      in   lieu   of   one   month's   notice   and
                      wages   of   15   days   of   each   completed
                      year   of   service   as   envisaged   undersection 25Fof the Industrial Disputes
                      Act. He could not have been directed
                      to be regularized in service or granted
                      any temporary status. Such a  scheme
                      has   been   held   to   be   unconstitutional
                      by   this   court   inA   UMA   RANI   vs
                      REGISTRAR                                  COOPERATIVE
                      SOCIETIES   &   ORS,   (2004)   7SCC   112
                      and   SECRETARY,   STATE   OF
                      KARNATAKA &  ORS. vs UMA DEVI  &
                      ORS., AIR 2006 SC 1806.20. We are therefore of the opinion that
                      grant   of   compensation   instead   of   a
                      direction   of   reinstatement   with   back
                      wages would meet the ends of justice."19.           Taking the same view, Hon'ble Supreme Court in the

case of UP STATE BRASSWARE CORPORATION LTD vs UDAY


LIR   NO. 300/08                                                                           Page 12 of   17   pages13NARAIN PANDEY, (2006) 1SCC 479 observed:"42.   A   person   is   not   entitled   to   get
                      something   only   because   it   would   be
                      lawful   to   do   so.   If   that   principle   is
                      applied, the functions of an industrial
                      court   shall   lose   much   of   their
                      significance.43. The changes brought about by the
                      subsequent   decisions   of   this   court,
                      probably having regard to the changes
                      in   the   policy   decisions   of   the
                      government in the wake of prevailing
                      market   economy,   globalization,
                      privatization   and     outsourcing,   is
                      evident."20.In   the     case   ofRAJESH   vs   SECRETARY   OF   NCT

GOVERNMENT   OF   DELHI,   WP(C)   NO.635/2008   decided   on

19/05/2008, Hon'ble Mr. Justice J.M. Malik of the Delhi High

Court   consolidated   various   judicial   pronouncements   on   this

aspect and followed the above described view of the Hon'ble

Supreme   Court   to   the   effect   that   direction   of   reinstatement


LIR   NO. 300/08                                                                           Page 13 of   17   pages14with full back wages on the termination being declared illegal

used to be the result earlier but now, with passage of time, a

pragmatic view of the matter has to be taken realizing that an

industry may not be compelled to pay to the workman for the

period during which he apparently contributed little or nothing

at all to it. Back wages also should not be granted mechanically

only because on some technical grounds a termination order is

struck down.21.          Falling back to the present case,   management in their

written   statement     did   not   deny   that   workman   had   been

working with them as a cylinder supplyman.       Such a job, as

being   done   by   the   workman   hardly   needs   any   specialized

formal   qualification.   It   can   also   be   not   denied   that   there   is

substantial requirement of persons who can do such work in so

many establishments of gas supply in Delhi. The requirement

of such workers being substantial, it cannot be believed that

the workman would have been sitting idle subsequent to the

termination of  his  services  during  past  more than  seventeen

years.       However,   it   also   cannot   be   ruled   out   that   for   initial

LIR   NO. 300/08                                                                           Page 14 of   17   pages15about   one   year   the   workman   would   have   remained

unemployed after termination of his services on 03.02.92 since

as   per   admitted   case   of   both   the   sides,   workers   of   the

management   were   on   dharna   with   effect   from   16.04.92   in

which settlement dated 06.06.92 was arrived at for revision of

workman's   wages   and   as   per   management's   own   case     the

punishment   of   dismissal  from   service   was   communicated   to

the workman on 13.08.92.22.         For past more than seventeen years   the workman has

not   contributed   towards   the   growth   of     the   management.

Rather  the sustained litigation during  this period of seventeen

years would have brought substantial  rot in  relations between

the   parties.     Under     such   circumstances,     reinstatement   of

services   of the workman with the management would serve

interest   of   neither   of   the   parties,   nor   would   the   same   bring

about   industrial   peace.     To   my   mind,     it   would   be   more

appropriate to award lump sum compensation to the workman

in lieu of  reinstatement of his services.23.       Workman pleaded the length of his service tenure with

LIR   NO. 300/08                                                                           Page 15 of   17   pages16management   as   01.07.85   to   03.02.92,   which   period   is   not

challenged by the management in their pleadings. So far as last

drawn   monthly   salary   is   concerned,     workman   pleaded   the

same to be Rs.900/­, which had been enhanced by agreement

dated 06.06.92 Ex. WW1/1 to Rs.1056/­ per month.24.       Looking   into   the   length   of   the   period   of   service   of

workman, nature of   work, period of approximately one year

during which workman would have remained unemployed as

discussed   above     and   other   relevant   factors,   a   sum   of   Rs.

25,000/­ would be a fair and reasonable amount towards lump

sum compensation in lieu of reinstatement and back wages of

the workman.25.       Accordingly,    the   workman   is   held   entitled   to   receive

from the management a sum of Rs.25,000/­  towards lump sum

compensation in lieu of  reinstatement of his services and back

wages.26.       Since     the   workman   was   compelled   to     initiate   and

prosecute these protracted proceedings over a span of about

seventeen years,  management shall pay him  a further sum of

LIR   NO. 300/08                                                                           Page 16 of   17   pages17Rs. 15,000/­  towards cost of litigation.27.                 Reference accordingly stands answered. Copies of

this   award   be   sent   for   publication   and   file   be   consigned   to

records leaving the parties bear their own cost.



ANNOUNCED IN THE OPEN COURT 
ON 25th APRIL, 2009
                                                 (GIRISH KATHPALIA)
                 ADDITIONAL DISTRICT & SESSIONS JUDGE,
                 PRESIDING OFFICER, LABOUR COURT­ XIX,
                         KARKARDOOMA COURTS, DELHI 




LIR   NO. 300/08                                                                           Page 17 of   17   pages