Vandana v. M/S HBL Globel Pvt. Ltd.

6. On the other hand, Ms. Romila Joshi, ld. Counsel appearing for the Management, submits that the Petitioner/Workman had received various letters showing that she was under-performing, and the said letters were placed on record before the Labour Court. However, the same have been ignored by simply stating that no specific incident of indiscipline and misconduct was pointed out by the Management. She emphasises the fact that the letters were written way back in 2009, even before the Petitioner’s alleged miscarriage is stated to have taken place, for which no medical records have been filed. Thus, it is wrong to suggest that the Management had a grievance against the Petitioner, only due to her absence from work at the time of her miscarriage. In fact, the performance of the Petitioner was not satisfactory, which is evident from the letters dated 1st April, 2009, 24th August, 2009, 20th October, 2009, 3rd December, 2009 and 1st April, 2010. In this letter, the grade and the compensation package qua the Petitioner was restructured, and it was clearly intimated to her that her performance was not satisfactory. On the basis of these letters which went on to be addressed to the Petitioner till the years 2012-2014, the Management claims that the services of the Petitioner were not satisfactory and the termination of her services was legal.

7. Ms. Joshi, ld. Counsel, further argues that in every case where the termination of service is held to be illegal, it is not necessary that reinstatement in service has to be granted automatically. Reliance is placed upon the judgement of the Supreme Court in Municipal Council, Sujanpur v. Surinder Kumar [Civil Appeal No.2474/2006 decided on 5th May, 2006] as also the judgment of the Delhi High Court in Vinod Kumar and Ors. v. Salwan Pubic School & Ors. [2014 LLR 239]. In conclusion, she submits that the Labour Court has judicially calculated the compensation payable in terms of Section 25(F) of the Industrial Disputes Act, 1947. Hence, the impugned Award deserves no interference. Analysis & Findings:

8. Heard ld. Counsels for the parties. Admittedly, there is enormous bitterness between the Petitioner/Workman and the Respondent/Management. The Petitioner was terminated way back in the year 2014 and by that time, she had rendered six years of service. Even if the period between the years 2008 to 2012 is considered, she had rendered uninterrupted service to the Management for a period of four years.

9. A perusal of the record shows that sometime during the year 2012, due to various reasons which need not be gone into in the present petition, the Petitioner had absented herself from work, and the first round of dispute had taken place between the Management and the Petitioner. Thereafter, she was then reinstated with the Management and continued to work with the Management till 2014. However, in respect of this period, a large number of letters have been placed on record by the Management which purportedly allege that the performance of the Petitioner was not satisfactory.

10. After perusing the evidence which was led before it, the labour court gave the following findings on each of the issues: Issue No.1 In respect of the question as to whether the Petitioner was a Workman under Section 2(s) of the Industrial Disputes Act, 1947, the Labour Court held the Petitioner to be a Workman, as defined under the said provision. Thus, Issue No.1 was decided in favour of the Petitioner and against the Management. Issue No.2 In respect of the issue as to the performance of the Petitioner not being up to the mark and the warning letters which were served upon her for improving her performance, the Labour Court came to the conclusion that the Management failed to establish that the Petitioner was under-performing. It appeared to the labour court that the intention of the Management was to somehow get rid of the Petitioner. Thus, Issue No.2 was decided in favour of the Petitioner and against the Management. Issue No.3 In respect of the issue as to whether she was absenting herself from quality improvement training sessions wrongfully and was guilty of indiscipline and misconduct, the Labour Court held that the Management could not establish the same. Further, the Petitioner had a valid reason not to attend the quality improvement training sessions as she had an infant daughter. Thus, Issue No.3 was decided in favour of the Petitioner and against the Management. Issue No.4 In respect of the issue as to the Petitioner’s unprofessional and callous attitude in her interaction with her colleagues and customers, the Labour Court held that the Management did not lead any evidence of customers or colleagues to establish the same. Thus, Issue No.4 was decided in favour of the Petitioner and against the Management. Issue No.5 In respect of the allegations raised by the Management that the Petitioner had written false and frivolous letters, making baseless allegations against the Management, after examining some of the said letters on record, the Labour Court came to the conclusion that insofar as supply of PCs and the software is concerned, it was clear that the Petitioner was not raising any false or frivolous allegations. Thus, Issue No.5 was decided in favour of the Petitioner and against the Management. Issue Nos. 6 and 7 These two issues were taken up together. In respect of these two issues, the Management relied upon various letters stated to be written by them to the Petitioner. The Petitioner denied the receipt of the said letters. However, the Labour Court held that the said letters were received by the Petitioner inasmuch as it was sent properly, and the proof of dispatch was also placed on record. Thus, these two issues were disposed of in the above terms. Issue No.8 On the question of illegal termination which was considered as Issue No.8, the Labour Court holds that after she was taken back in 2012, various communications were addressed to her. However, there was no specific incident of insubordination or unsatisfactory performance which was pointed out by the Management. No evidence of colleagues or customers was produced to establish the said allegations. Thus, Issue No.8 was decided in favour of the Petitioner and against the Management. The Labour Court’s conclusion on this issue is crucial, and is set out below: “Issue no. 8. Whether the services of the workman were terminated by the management illegally and unjustifiably as claimed by the workman? O.P.W. The onus to prove this issue was upon the claimant/ worklady. From the pleadings as well as the evidence adduced by the parties, it is an admitted position on record that the services of the claimant were dispensed with by the management earlier also in the year 2012, when she had returned back for her duties in the month of August 2012 after availing medical leaves and thereafter when she had filed the case before the Labour Commissioner, then only the management had taken her back on job. It shall be interesting to see that after taking her back on job, frequency of management's issuing her so called warning letters asking the claimant to improve her quality and quantity of performance had increased enormously. It shall be further pertinent to note here that in none of the aforesaid communication as placed on record, neither any specific incident of her insubordination nor claimant's unsatisfactory performance in discharge of her official duties or the manner and mode of her callous attitude in discharge of her duties was mentioned or explained, except one incident of her leaving a caller online or that of making a comment about one of the deceased customers. However, in context of these incidents as well, neither any customer nor any co-employee of the claimant was examined by the management to prove the same on record even by preponderance of probabilities. Furthermore, though management had talked about the conduct of quality improvement training sessions for the claimant and claimant had also admitted about attending those sessions in her communication Mark B. However, no performance appraisal report of the claimant was ever communicated to her, nor it was placed on record in the present case to show any decline in her performance. For a prudent mind, it is not very difficult to understand the plight of an employee who had been taken back on the job by the management under certain compulsions and the anxiety of the management in getting rid of such an employee at the earliest opportunity available to it. Although the management could not be held to have indulged into any illegal act while dispensing with the services of the claimant, however, straightaway dispensing with her services without even chargesheeting her or conducting or holding any inquiry against her for her alleged misconduct and gross insubordination could not be held to be justified either. Therefore, this issue is answered in affirmative while holding the termination of the services of the claimant by the management to be unjustified amounting to her retrenchment and decided in favour of the claimant and against the management.” Issue No.9 On this issue as to whether the Petitioner is entitled to the relief as claimed, the Labour Court arrived at the conclusion that both the parties are extremely animus towards each other. It would not be in the fitness of things to allow the reinstatement in service, as they do not enjoy a good relationship. Considering the bitterness in the relationship between the parties, Issue No.9 was decided in favour of the Petitioner and against the Management. However, instead of reinstatement in service, the Workman was held to be entitled to compensation as provided under Section 25F of the Industrial Disputes Act, 1947. Relief awarded by the Labour Court:

11. Considering the facts and circumstances of the case, the Labour Court found it appropriate to grant relief to the Petitioner/Workman, in the following manner: “In view of my findings to the above issues, it is categorically clear that the claimant had joined the services of the management on 13.08.2008 and had continued to work till 30.12.2014 because once the management had taken her back in its employment in the year 2012, that would have amounted to continued and uninterrupted service of the claimant with the management. As such, the claimant was entitled to compensation under Section 25(F) for her services rendered for a period of 6 years which fact the management had also recognized in the present case by paying her an amount of Rs. 26,180/- towards her gratuity. Therefore, an award for the following reliefs is passed in favour of the claimant and against the management:-

1. an amount of Rs. 13,100/- is awarded in favour of the claimant for her one month's notice pay (the said amount already stands paid by the management);

2. the gratuity for the period of six years calculated at the rate of three month's salary after deducting the amount already paid by the management amounting to Rs. 13,120/- is also awarded in favour of the claimant (Rs.13,100 X 3 = Rs. 39,300 - Rs. 26180 = Rs.13,120/-);

3. the retrenchment compensation @ 15 days average salary for each completed year of continuous service amounting Rs. 39,300/- is also awarded in favour of the claimant;

4. compensation towards incentive, overtime and bonus as management had failed to prove her under performance on record for the relevant period, amounting to Rs. 50,000/- is also awarded. In favour of the claimant; Accordingly, an award for the amount of Rs.1,02,420/- is passed in favour of the claimant and against the management and management is directed to pay the above said amount to the claimant within 30 days of publication of this award, failing which the above said amount shall also be carrying an interest @ 8 percent per annum till the date of its realization. Statement of claim as filed by the claimant is allowed and disposed of accordingly. Copy of the award be sent to the Labour Commissioner for publication. Case file be consigned to record room.”

12. The Management has honoured the impugned Award dated 15th October, 2019 and has admittedly paid the entire awarded sum. The Petitioner, however, has preferred the present petition challenging the relief which was granted by the Labour Court. From the findings discussed above, the labour Court, has held that the termination of the Petitioner’s services was illegal and there was a concerted effort made to somehow ensure that she can be removed from service. This finding of the Labour Court has been clearly held in answer to Issue No.8, and is not under challenge. Thus, the illegality of the termination not being under challenge, the only question which this Court is primarily considering is whether the compensation awarded to the Petitioner is just and reasonable, or whether the Petitioner is entitled to the relief of reinstatement in service with back wages as sought in the claim petition.

13. The judgments in Municipal Council, Sujanpur (supra) as also Vijay Kumar (supra) cited by the Management clearly hold that reinstatement in service is not automatic, whenever the termination of service is held to be illegal. In Deepali Gundu Surwase (supra), the Supreme Court observed that in cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. The question of back wages, however, has to be considered depending on the length of service, nature of misconduct, etc.

14. However, in its recent decisions, the Supreme Court has held that reinstatement in service need not be granted in all cases of illegal termination of service, and reasonable compensation in lieu of reinstatement, may be granted by the Court, depending upon the facts and circumstances of each case.

15. In Allahabad Bank and Ors. v. Krishan Pal Singh (SLP(C) NO. 19648/2019, decided on 20th September 2021), held as under:

16. Thus, the Supreme Court has clearly recognised the fact that reinstatement is not an automatic consequence of wrongful termination, especially when the Workman has, during the pendency of litigation, not performed any services with the Management. The Supreme Court has, accordingly, awarded lump sum compensation in lieu of reinstatement.

17. Even in Ranbir Singh v. Executive Eng. P.W.D. (Civil Appeal NO. 4483/2010, decided on September 2, 2021), wherein it was observed as under: “6..…In other words, we find that reinstatement cannot be automatic, and the transgression of Section 25F being established, suitable compensation would be the appropriate remedy. 7. In such circumstance, noticing that, though the appellant was reinstated after the award of the Labour Court in 2006, the appellant has not been working since 2009 following the impugned order, and also taking note of the fact that the appellant was, in all likelihood, employed otherwise, also the interest of justice would be best subserved with modifying the impugned order and directing that in place of Rs. 25000/- (Rupees Twenty Five Thousand), as lumpsum compensation, appellant be paid Rs.3.25 lakhs (Rupees Three Lakhs and Twenty Five Thousand), as compensation, taking into consideration also the fact that the appellant had already been paid Rs. 25000/- (Rupees Twenty Five Thousand) as compensation.”

18. Similar is the view of the Supreme Court in Ram Manohar Lohia Joint Hospital and Ors. v. Munna Prasad Saini and Ors. [AIR 2021 SC 4400] as also in Madhya Bharat Gramin Bank v. Panchamlal Yadav [2021 LLR 681].

19. Therefore, in view of the recent jurisprudence which has evolved qua the award of compensation in lieu of reinstatement in cases of illegal termination of services, this Court is not inclined to award reinstatement with back wages and continuity of service in the present case.

20. However, this Court also cannot ignore the fact that the Petitioner had rendered four years of continuous service and two years thereafter, till she was terminated. Her last drawn salary was Rs.13,100/- per month. Considering that, the Petitioner rendered services with the Management since 2008 to 2014 i.e., for a period of six years, the Labour Court has strictly calculated her compensation in terms of 15 days average salary for each completed year of continuous service, amounting to Rs.39,300/-. The bonus and other compensation have been valued at Rs.50,000/-. She also had complained of ill treatment by the Management who continued to serve several letters upon her. Thus, in the absence of any specific incident where either misconduct, misbehaviour or insubordination was recorded, the termination of service has also been held to be illegal.

21. The impugned Award in the present case was rendered in 2019 i.e., after a period of five years from the termination of service. During this entire period, the Petitioner has pursued the litigation against the Management diligently. However, the lump sum compensation that has been awarded by the Labour Court is only to the tune of Rs.1,02,420/-. Considering that she was working as a tele-caller and she also had joined back her duties by the time she was terminated, this Court is of the opinion that it would be reasonable, in the facts and circumstances of the present case, to award a further compensation of Rs.[1] lakh to the Petitioner, along with Rs.50,000/- as litigation expenses.

22. Let the said amount of Rs. 1,50,000/- be paid by the Respondent/Management to the Petitioner/Workman, within eight weeks, failing which, the said amount would be payable along simple interest at 7% per annum.

23. With the above observations, the present petition along with all pending applications, is disposed of. The impugned Award dated 15th October, 2019 stands modified in the above terms.