The Management R.R.Foundations ... vs Sewa Ram
2013 Latest Caselaw 2233 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 9635/2007
       THE MANAGEMENT R.R.FOUNDATIONS ENGINEER P.LTD.
                                             ..... Petitioner
                  Through: Ms. Anusuya Salwan with Ms. Renuka
                           Arora, Adv.

                          versus

       SEWA RAM                                        ..... Respondent
                          Through: Mr. Rama Shankar with Ms. Renu, Adv.

       CORAM:
       HON'BLE MS. JUSTICE VEENA BIRBAL

                             ORDER

% 14.05.2013

1. By way of this writ petition challenge has been made to impugned award dated 15.11.2007 passed by the Presiding Officer, Labour Court-II in I.D. No.176/2002 whereby it has been held that the termination of service of respondent is illegal and unjustified and a compensation of `1.5 lakh has been awarded in favour of respondent.

2. Briefly, the factual background is as under:-

An industrial dispute raised by the respondent and one Sh. Kanhaiya Lal was referred by Secretary (Labour), Government of NCT of Delhi for adjudication of Labour Court, Delhi vide order dated 26th June, 2002 with the following terms of reference.

"Whether Sh.Sewa Ram S/o Sh.Tota Ram and Sh.Kanhaiya Lal s/o Sh.Diwan Singh have settled their accounts in full and final with the management or their

services have been terminated illegally and/or unjustifiably by the management and if so, to what sum of money as monetary relief along with consequential benefits in terms of existing laws/Govt.Notification and to what other relief are they entitled and what directions are necessary in this respect."

3. Pursuant thereto, the respondent and Kanhaiya Lal had filed their statements of claim before the concerned Labour Court, Delhi.

4. The respondent Sewa Ram had stated that he was employed by the petitioner w.e.f. 1983 as a Peon on a monthly salary of ` 3200/- per month. On 30th November, 2000, petitioner/management terminated his services without assigning any reason. No show cause notice was issued to him nor any inquiry was held by petitioner/management. He had also sent a demand notice. However, petitioner neither complied with the demand of reinstatement nor even replied thereto. He had also approached the conciliation but petitioner did not participate in the conciliation. He had alleged that from the date of termination he was unemployed and had prayed for reinstatement with continuity of service and back wages. The aforesaid claim was opposed by the petitioner by filing a written statement. Petitioner had alleged that the respondent was employed as a Supervisor and had resigned of his own will after taking full and final settlement of his dues and left the services of his own. Petitioner/management had also denied their non participation in the conciliation proceedings. The claim of respondent regarding unemployment since the date of termination was also denied.

5. The claim of co-worker Kanhaiya Lal was also opposed by the petitioner/management by filing separate written statement.

6. On the basis of pleadings of the parties, following issue was framed:-

" Whether Sh.Sewa Ram and Sh.Kanhaiya Lal have settled their accounts in full & final with the management or their services have been terminated illegally, and/or unjustifiably by the management, and if so, to what sum of money as monetary relief along with consequential benefits in terms of existing laws/Govt. Notification and what other relief they entitled and what directions are necessary in this respect?"

7. It may be pointed out that Kanhaiya Lal had failed to appear in the witness box in support of his claim and no arguments were addressed on his behalf. Accordingly, the Labour Court has not given any relief to him.

8. The petitioner/management and respondent/Sewa Ram led their evidence before the Labour Court. In evidence, the respondent examined himself as WW-1 on his affidavit Ex.WW1/A and also produced documents Ex.WW1/1 to Ex.WW1/4 in support of his claim. On behalf of the petitioner, Sh.Jagdish Kumar, MW-1, an employee of the petitioner company had tendered his affidavit in evidence as Ex.MW1/A and had produced documents Ex.MW1/1 to Ex.MW1/4. The management also examined Sh.Shyam Lal, an Accountant from Employees Provident Fund as MW2 who had proved the documents MW 1/2 and 1/3 respectively.

9. After considering the evidence and documents on record, the learned Presiding Officer of the Labour Court had passed the impugned award which has been challenged before this court.

10. Learned counsel appearing for petitioner has contended that the respondent had resigned from the services of petitioner/management of his

own and had accepted an amount from the petitioner/management in full and final settlement.

11. On the other hand, learned counsel for the respondent has contended that the findings of Labour Court are based on evidence on record. It is contended that there is no illegality in the impugned order which calls for interference of this court in exercise of its jurisdiction under Article 226 of the Constitution of India.

12. I have heard counsel for the parties and perused the material on record.

13. To substantiate that the respondent had resigned from the service of petitioner/management, learned counsel for the petitioner has relied upon copy of voucher dated 26.7.2001 Ex. MW 1/1 and letter by the Provident Fund Organisation Ex.MW 1/2 to the petitioner/management wherein it is stated that the respondent had withdrawn the provident fund amount. The petitioner has also relied upon letter Ex.MW 1/3 written by it to the Regional Provident Fund Commissioner requesting for giving copies of withdrawal form of respondent and of one more co-worker, copy of stores indent Ex.MW 1/4.

14. As regards voucher dated Ex.MW 1/1 whereby it is alleged that respondent had received full and final settlement amount, the respondent has denied having taken the said amount in full and final settlement of his dues with the petitioner/management in the evidence. During his cross- examination, respondent has categorically stated that the said amount was paid to him as he had been made to stand surety for the driver of petitioner in a criminal case at Patiala House Courts and the said driver had absconded as a result of which surety bond was forfeited. Since, he had deposited FDR

with the court, payment of ` 5000/- was due to him from the petitioner and it was only the amount of surety which was paid to him by the petitioner. Nothing has been placed to rebut the same. Even voucher Ex.MW 1/1 is not signed by the respondent.

15. No other document to prove that respondent had resigned from the services of petitioner has been produced by the petitioner/management nor is there any other document to show that there was full and final settlement between the petitioner and respondent. Even the witness Sh. Jagdish MW1 who appeared on behalf of the petitioner was not even able to reply as to whether respondent had been employed with the petitioner/management since 1983. The other documents relied upon by the petitioner/management as are stated above, i.e., Ex.MW1/2 to Ex.MW1/4 do not help the petitioner in any manner to substantiate its stand.

16. The Labour Court has observed that the onus to prove the issue that the respondent having left the services of his own after taking full and final settlement was on the petitioner/management which they failed to discharge. The findings of the learned Labour Court in this regard are as under:-

"Even otherwise, onus to prove the issue of the workman having left the service of his own accord after taking full and final settlement was clearly on the management which they failed to discharge. It has been throughout claimed that a payment of ` 5000/- had been made to the workman Ex.MW 1/1 but for the reasons that voucher did not even bear signature of workman, said document has no evidentiary value as being a proof of full and final settlement.

In view of the discussion above, it becomes quite clear that there was no full and final settlement of accounts between

the parties as alleged by management and on the contrary the service of workman was terminated in a most high handed and arbitrary manner. Claimant has a long service since 1983 and since termination has been done without compliance of provisions of section 25-F I.D.Act, 1947, said termination is absolutely illegal and unjustified. However, workman for all purpose is deemed to continue to be in service and since he has remained unemployed not of his own accord, inspite of his best efforts to find another job, claimant would be entitled to reinstatement with continuity and back wages to the extent of 75% but since the workman has already spent considerable number of years in litigation and keeping in view the facts and circumstances, it shall be more appropriate to award compensation in lieu of reinstatement. As such I award a sum of rs.1,50,000/- (`.One lac fifty thousand only)."

17. The finding of the learned Labour Court that there was no full and final settlement of accounts between the parties are based on evidence on record. On the basis of material on record, the Labour Court rightly held that termination of respondent is in violation of section 25-F of the Act.

18. No illegality or perversity is seen in the findings of the Labour Court. Considering the length of service of respondent i.e., having worked with petitioner/management since 1983, the Labour Court has only granted compensation of ` 1,50,000/- to respondent in lieu of reinstatement. No case for interference is made out.

The writ petition is dismissed. There is no order as to costs.

VEENA BIRBAL, J MAY 14, 2013 ssb