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2019 Supreme(Del) 1910
IN THE HIGH COURT OF DELHI AT NEW DELHI
REKHA PALLI, J.
Corporation Limited — Appellant
Versus
Chetan Kandpal And Another — Respondent
Writ Petition (Civil) No. 9755 of 2017
Decided on : 25-09-2019
Advocate Appeared:
Jagriti Ahuja, Adv., Ateev Mathur, Adv., Aditya Bakshi, Adv., Rajeev Saxena, Adv., Rachit Sahney, Adv., Manish Khurana, Adv.
The main legal point established in the judgment is the interpretation of the definition of workman under Section 2(s) of the Industrial Disputes Act and the determination of whether the termination amounted to retrenchment under Section 2(oo).
Headnote:
Industrial Dispute - Termination of Services - Industrial Disputes Act, 1947 - Section 2(s), Section 2(oo) - Summary: The court addressed the termination of services of the respondent and the definition of workman under Section 2(s) of the Industrial Disputes Act, as well as whether the termination amounted to retrenchment under Section 2(oo). The court found in favor of the respondent, directing the petitioner to reinstate him with full back wages.
Fact of the Case:
The respondent's services were terminated by the petitioner, leading to an industrial dispute. The Tribunal found in favor of the respondent, directing the petitioner to reinstate him with full back wages.
Finding of the Court:
The court found that the termination of the respondent's services was not justified and directed the petitioner to reinstate him with full back wages.
Issues: The issues included whether the respondent was a workman under Section 2(s) of the Industrial Disputes Act and whether the termination amounted to retrenchment under Section 2(oo).
Ratio Decidendi: The court held that the termination of the respondent's services was not justified and amounted to retrenchment, leading to the direction for reinstatement with full back wages.
Final Decision: The court allowed the petition, quashed the impugned award, and remanded the matter back to the Tribunal for fresh adjudication.
JUDGMENT :
Rekha Palli, J.
Vide the present petition under Article 226 and 227 of the Constitution of India, the petitioner/management assails the award dated 14.06.2017 passed by the Central Government Industrial Tribunal-II, Karkardooma Courts, Delhi in ID No.233/2011, whereunder the Tribunal after holding that the services of the respondent/workman had been illegally terminated, directed the petitioner to reinstate him with all consequential benefits.
2. Learned counsel for the petitioner, on instructions, submits that the petitioner is willing to amicably settle the matter with the respondent by paying him a lump sum compensation of Rs.5,00,000/- along with an experience certificate, which offer is not acceptable to the respondent and consequently the petition has been heard on merits.
3. The respondent had joined the services of the petitioner as a Relationship Manager in its Lucknow branch on 06.08.2007. On finding that the respondent s performance was not satisfactory, he was on 20.08.2008 asked to undergo training by way of a Performance Improvement Plan. Upon the closure of the petitioner s branch at Lucknow, the respondent was on 08.08.2008, transferred to Delhi. The petitioner terminated the services of the respondent on 22.05.2009 by paying him a sum of Rs 98,550/- in accordance with the terms and conditions of his appointment, which amount was duly accepted by him without any demur or protest. After a period of six months, the respondent issued a legal notice to the petitioner requesting for the withdrawal of his termination order. The said notice was replied to by the petitioner on 26.11.2009 wherein, the respondent s request was rejected.
4. In these circumstances, the respondent then raised an industrial dispute which was referred by the appropriate government to the learned Tribunal. In his statement of claim filed before the Tribunal, the respondent claimed that not only was he made to undergo the Performance Improvement Plan without any justification, but that he was also subsequently terminated, not because his services were unsatisfactory, but only as the petitioner was unwilling to retain him after its Lucknow office was closed.
5. The petitioner filed its written statement opposing the respondent s claim wherein it was urged that the industrial dispute itself was not maintainable as the respondent, having been appointed as a Relationship Manager, did not fall within the definition of workman under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter I.D. Act). It was further claimed by the petitioner that the respondent after having accepted all his terminal dues without any demur, was estopped from challenging his termination at this belated stage and that the termination of the respondent was strictly in accordance with the terms and conditions of his employment and that in any event, the respondent had been paid compensation exceeding what would be payable to him in accordance with Section 25(F) of the I.D. Act.
6. Based on pleadings of the parties, the following issues were framed by the Tribunal on 07.09.2011:-
1. Whether the claimant is not a workman within the meaning of section 2(s) of the Act?
2. Whether his termination of services vide order dated 22.5.2009 amount to retrenchment, as defined in section 2(oo) of the Act? If yes its effect
3. As in terms of reference.
4. Relief
7. The parties thereafter led their respective evidence and the impugned award came to be passed on 14.06.2017 whereunder the Tribunal, after deciding all the issues in favour of the respondent, directed the petitioner to reinstate him with full back wages. The findings of the tribunal read as under:-
Findings on issue no.1:- Burden to prove issue no.1 lies on management of HSBC but there is no evidence of management of HSBC which can show that claimant is not workman within meaning of section 2(s) of I.D. Act, 1947
In want of evidence of management on aforesaid issue No.1 is liable to be decided against management of HSBC an
