Delhi High Court
Naresh Kumar & Ors vs M/S Lancer Convent Senior ... on 18 December, 2014
Author: Suresh Kait
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 18th December,2014
+ W.P. (C) No. 1254/2014
NARESH KUMAR & ORS ..... Petitioners
Represented by: Mr.Arun K.Yadav, Adv.
Versus
M/S LANCER CONVENT SENIOR SECONDARY
SCHOOL ..... Respondent
Represented by: Mr. S.N.Gupta, Adv.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. Vide the present petition, petitioners seek setting aside the
relief part of the award dated 13.01.2014, whereby the respondent /
Management was directed to pay Rs.50,000/- each in favour of the
petitioners as lump sum compensation in lieu of reinstatement and
retrenchment compensation.
2. The petitioners seek parity with other similar employees who
settled their claims before this court and the respondent /
Management paid them up to Rs.7,00,000/-. In one case, an
employee namely Raj Bala, who was employed as Aya has received
an amount of Rs.2,50,000/- towards arrears of back wages and later
on settled the matter for Rs.4,50,000/-. Thus, the respondent paid her
more than Rs.7,00,000/- before this Court in W.P.(C) 6280/2011.
3. Similarly, the respondent / Management paid an amount of
Rs.3,00,000/- towards arrears of back wages with the other
employee, namely, Bhagat Singh, who was driver and later on settled
for an amount of Rs.4,50,000/-. Thus, he received an amount of
Rs.8,00,000/- in W.P.(C) 6278/2011.
4. Mr. Arun K. Yadav, ld. Counsel for the petitioner has relied
upon a case of Bhuvnesh Kr. Dwivedi v. Hindalco Industries Ltd.
VIII (2014) SLT 392, wherein held as under:
"33. In the present case, the Respondent has made a vague
submission to the extent that:
"The conduct of the workman throughout the
proceedings before the High Court during 2002
to 2011 shows that he is continuously gainfully
employed somewhere. Admittedly even in the
counter affidavit in the said Writ Petition, it has
not been stated that the workman was not
employed."
Therefore, on the basis of the legal principle laid
down by this Court in the Deepali Gundu Surwase case
(supra), the submission of the Respondent that the
Appellant did not aver in his plaint of not being
employed, does not hold since the burden of proof that
the Appellant is gainfully employed post termination of
his service is on the Respondent. The claim of the
Respondent that the Appellant is gainfully employed
somewhere is vague and cannot be considered and
accepted. Therefore, we hold that the Appellant is
entitled to full back wages from the date of termination
of his service till the date of his reinstatement."
5. The case of the petitioners before the Labour Court was that
they filed a case for their general demand before the labour
department and later on, during the course of pendency of general
demand, the Management had obtained ex-parte injunction order,
thus, misused the process of law against the petitioners. The
respondent / Management also forced the workmen to withdraw the
case of general demand. When the workmen had gone to attend their
duties, the respondent / Management did not allow them to join the
duty, which tantamount to the termination of services of the
petitioners in violation of Sections 25(D), 25(U), 31 and 33 of
Industrial Disputes Act, 1947.
6. Moreover, while terminating the services of the workmen, the
Management had neither served show cause notice or charge sheet
nor conducted domestic enquiry, which was also in violation of
Section 25 (F) of the Act. Thus, the petitioners raised the industrial
disputes qua the alleged illegal termination.
7. The respondent / Management filed written statement stating
therein that the petitioners / workers were not their employees.
Moreover, the drivers / mechanics of the school are covered under
definition of employees as defined under Section 2 (H) of Delhi
School Education Act and Rules, 1973. Therefore, the claim of the
petitioners is not maintainable under the Industrial Disputes Act,
1947.
8. Based upon the pleadings, the ld. Tribunal framed the issues as
under:
"1. Whether the workman had been working with the
management since 2003 at the post of (Driver / Mechanic)
drawing his last wages (@ Rs. 8803) per month?
2. Whether the present claim filed directly by the
workman before this court is not maintainable in view of
the preliminary objection no. 2 of the written statement?
4. Whether the services of the workman had been
terminated illegally and / or unjustifiably by the
management?
5. Relief"
9. Issue nos. 1 and 2 were decided in favour of the petitioners /
workmen for the reason that they were the employees of the
respondent / Management since the date of their employment. The
respondent / Management did not raise any objection that the
claimants were not their employees, moreover, never raised any
dispute whether they were permanent or daily wager or regular
employees.
10. So far as the direct claim filed by the workmen in the year
2007-2008 is concerned, as per the provisions of Section 104 (A) of
the ID Act, which came in force by way of amendment made in the
Act in September, 2010 in Section 2-A of the Act, the workmen can
straightway raise the industrial disputes before the Labour Court.
11. As regards issues no. 3 and 4, the Management alleged that the
workmen had resigned from the services after settling their full and
final accounts with the Management, thus, not entitled for any relief.
12. However, petitioners / workmen contended that their services
were terminated illegally and unjustifiably by the Management.
13. Admittedly, neither any termination letter in writing or any
show cause notice was issued by the respondent / Management, nor
any domestic enquiry was conducted against the petitioners /
workmen. It is also admitted fact that the case for general demand
was pending for adjudication.
14. The petitioners also admitted that they accepted the amount by
cash and cheque. They did not dispute the signatures on the
document of full and final settlement executed by the Management,
however, the procedures for settlement adopted by the Management
was contrary to the Industrial Disputes Act, 1947 and Rule 58 of the
Industrial Disputes Act (Central) Rules, 1957.
15. The legal position to this effect has been clarified in case of
M/s. Delhi Cloth General Mills Ltd. v. the Management of M/s.
Delhi Cloth and General Mills Ltd. decided on 17.10.1968 in Civil
Appeal no. 2006/1966, whereby held that the settlement, if any,
arrived at between the parties has to be executed before the
competent authority.
16. Keeping the facts recorded above into view and the evidence
on record, ld. Tribunal came to the conclusion that Rs.50,000/- each
are sufficient to be paid as compensation in favour of each of the
petitioners.
17. It is relevant to note here that during the hearing of this case,
respondent / Management had offered Rs.50,000/- each to be paid in
favour of the petitioners, which the petitioners refused to accept.
18. The service details of the petitioners are as under: -
DIDs Workers Fathers Designation Date of Date of
No. Name Name & salary appoint institution of
ment / DID
terminat
ion
1/13 Naresh Tara Driver- August2003/ 31.05.2007
Kumar Chand Rs.4,400/- 19.01.2007
2/13 Suresh Sher Driver- 1994/ 09.07.2008
Kumar Singh Rs.8,443/- 16.06.2008
3/13 Mahipal Kirpa Mechanic- 1995/ 27.07.2008
Ram Rs.8,700/- 17.07.2008
4/13 Ram Niwas Jai Driver- 2000/ 09.07.2008
Chandra Rs.8,400/- 17.06.2008
5/13 Mukesh Sher Motor 5 years 27.08.2008
Singh Mechanic- / 17.07.2008
Rs.8,600/-
6/13 Surender Harpal Driver- 22.91.2002/ 02.04.2008
Singh Rs.8,473/- 24.03.2008
9/13 Mehtab Jumma Driver- 2003 04.03.2008
Singh Rs.8,803/- 29.02.2008
Sheikh
19. The present case is under the judicial review and the
evidence need not to be appreciated. However, keeping in view
the facts that respondents in above noted cases have settled the
disputes by paying even up to Rs.8,00,000/-. Therefore, I am of
the considered view that the justice would be met by granting
Rs.2,00,000/- each in favour of the petitioners in addition to
Rs.50,000/- already received by them pursuant to award dated
13.01.2014.
20. Accordingly, the respondent School is directed to pay an
amount of Rs.2,00,000/- each in favour of the petitioners within
four weeks from today, failing which the petitioners shall be
entitled for interest @ 9% per annum on account of delayed
payment.
21. In view of above, instant petition is allowed.
SURESH KAIT, J
DECEMBER 18, 2014
jg
