Sh. Vipin Kumar vs BWFS on 1 September 2026

BEFORE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM

LABOUR COURT-II, DELHI

I.D. No. 40/2014 Sh. Vipin Kumar, S/o Sh. Chattar Singh, R/o 1154, Jatav Mohalla, Nazafgarh, Delhi- 110043.

...Claimant/Workman VERSUS The Management of The Bird Worldwide Flight Services (India) Pvt. E-9, Connaught House, Connaught Place, New Delhi-110001.

…Management/Respondent Counsels: For Applicant/ Claimant: In person.

For Management/ Respondent: Sh. Kunal Mehta, Ld. AR.

AWARD 01.09.2026

This is an application under section 2A of the Industrial Disputes Act (hereinafter referred to as “the Act”) filed by the claimant. Claimant after obtaining the failure report under section 2A of the Act had filed the claim petition before this Tribunal with the prayer to reinstate him with full back wages. Workman has stated that he was appointed vide letter dated 31.07.2010 as loader on contract basis w.e.f. 01.08.2010 for period of one

year by the management and since then he has been serving with the management with honestly and diligently. It is further his case that his job was perennial in nature. His last drawn wages was Rs. 6,000/- per month. The management had been violating the labour legislation like Minimum Wages Act, ESIC and EPF Act etc. Though the management had been deducting ESI and EPF contribution from the wages every month but did not provide him with ESIC facilities nor it gave any account number of EPF. When he demanded the same, the management got annoyed and he had called the workman on 24.06.2011 by telephonic message in its office at about 01:00 P.M. When he reached in the office, his personnel identity card (PIC) issued by the BCAS was snatched and his services were terminated. He has visited several times to the management to allow him to do duty but management had not allowed. Hence, he was constrained to serve a demand notice dated 28.07.2011 upon the management under registered post/AD demanding for reinstatement in service with continuity of service with full back wages along with all consequential benefits, however, management had rejected the demand vide its undated letter falsely stating that the workman was absented from duty. Hence, he has filed the present claim. Management has filed its written statement, stating that the claim is barred under the provisions of Section 2A(1) of the Act because the claimant had earlier raised the same dispute before the court of Sh. Chander Gupta, Ld. Presiding Office, Labour Court, Delhi and did not pursue the same. Claimant is also guilty of concealment of material facts so much so the certificate issued by the Conciliation Officer clearly shows that the proceedings before the Conciliation Court stood completed on 27.03.2014, whereas the present dispute has been filed on 01.05.2014, which is not in consonance of the provisions of Section 2A(2) of the Act. On merit, he has submitted that since the contractual employment of the claimant came to an end automatically after its expiry of one year period on 31.07.2011. Since the claimant had abandoned the service of the management-BWFS on 24.06.2011, therefore, nothing has been survived in the claim. Even, the management on its own sent a cheque of Rs. 4275/- representing the salary of the claimant due for the period from 01.06.2011

to 23.06.2011. The said amount was duly received by the claimant vide cheque No. 345535 and it is also admitted by the claimant that the said cheque was duly presented by him voluntarily in his bank without any protest and demur to the respondent. Thereafter, claimant has abandoned the service of the management on 24.06.2011.

Claimant has filed the rejoinder denying the averments made in the written statement and affirmed the fact mentioned in his claim statement.

After completion of the pleadings, vide order dated 10.04.2018, following issues have been framed i.e.:

(i) Whether the claimant is entitled for reinstatement in service with back wages?

(ii) Whether the termination of the claimant by the management is illegal and against the provision of I.D. Act?

(iii) Whether the claim filed by the claimant is not legally maintainable in view of various preliminary objections?

(iv) Relief.

Workman, in order to prove his contention, has entered into the witness box. He had reiterated the facts as mentioned by him in his claim statement. He has stated that management’s action in terminating his services is in violation of provision of sections 25-F, G, & H of the Act. He had relied upon several documents i.e.:- Ex. WW1/1: Copy of appointment letter dated 31.07.2010. Ex. WW1/2: Copy of the demand notice dated 28.07.2011. Ex. WW1/3: Copy of the demand notice for reinstatement by the claimant. Ex. WW1/4: Copy of the postal envelope. Ex. WW1/5: Copy of the letter of the claimant issued to the management.

Workman was put to the test of cross-examination, where he admitted that after receipt of the demand notice the management had given a reply on 08.11.2011 alongwith a cheque for Rs. 4275/- towards

wage for 24 days in the month of June, 2011. He further admitted that he had encashed the said cheque. He admitted that he had earlier filed another proceeding in the labour court at Karkardoma. That proceeding has been disposed of with a direction to him for approaching the labour commissioner.

In rebuttal, One Sh. Subash Chander Bakshi, on behalf of the management has entered into the witness box. He has reiterated the facts as mentioned in his WS. He has relied upon only single document i.e. appointment letter of the claimant (Ex. MW1/1).

Management’s witness was put to the test of cross-examination, where he admitted that workman was appointed on 01.08.2010 vide letter dated 31.07.2010. He also admitted that management came into existence in 2009 and all its employees were employed initially for a period of 1 year on contractual basis and later on whoever was continuing was regularized in service. He further admitted that the persons who were employed by BWFS in the year 2009 and 2010, the management was deducting the contribution for ESI and EPF from their wages. He did not know, if the persons employed in the management BWFS in the year 2010 were provided with ESI card or not. He denied that the workman had demanded for issue of ESI card but the same was not supplied to him by the management. He denied that being annoyed by the demand of the workman for ESI card, the management called him to its office on 24.06.2011 and forcibly took away his airport entry pass (PIC). He further admitted that no notice was ever sent to the workman when he absconded from 24.06.2011. He admitted that the letter marked as Ex. WW1/M2 was sent to the workman after receipt of his demand notice dated 28.07.2011.

Whole case of the claimant rests upon the premise that his services were terminated before expiry of the contract period, which would have come to an end on 31.07.2011? His further case is that when he demanded the ESI & PF facilities from the management, management got annoyed him and his services have come to an end on 24.06.2011. He has proved the appointment letter, demand letter as well as the proceedings he has initiated before the Labour Court, Karkardoma.

While the management’s case rests upon the premise that workman has abandoned his services on 24.06.2011 and they have paid the amount of Rs. 4275/- through Cheque for the work he has done in June, 2011 which was encashed by the claimant.

In the light of the above argument and evidence, my issue wise findings are as follow:

Issues

For the sake of convenience, the issue no. 3 is taken first. Management has taken the various preliminary objections in this regard stating that claim of the claimant is not maintainable in view of the bar of section 2-A of the proceeding. Claimant is stopped for claiming further because he has already initiated the proceeding before the State Labour Court, where he had withdrawn his claim and re-filed the same before this Tribunal.

Before we proceed further, it is necessary to produce the text of section 2A: “2A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute.- [(1)] where any employer discharges, dismisses, retrenches, or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute not withstanding that no other workman nor any union of workmen is a party to the dispute.

Not withstanding anything contained in section 10, any such workman as is specified in sub-section

(1) may, make an application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of forty-five days from the date he has made the application to the

Conciliation Officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of this act and all the provisions of this act shall apply in relation to such adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government.

The application referred to in sub-section (2) shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in sub-section (1). From the perusal of the aforesaid section, it clearly establishes that a dispute connected with or arising out of discharge, dismissal, retrenchment or otherwise termination of services of the workman can be directly agitated by workman Under section 2A of the act, and it is not necessary that such disputes should be sponsored by a trade union or a substantial number of workmen. However, what is required is that a workman who has been discharged, dismissed, retrenched or terminated as specified in sub-section

(1) of section 2A can make an application directly to Labour Court or Tribunal for adjudication of his individual dispute after the expiry of 45 days from the date he has made an application to the conciliation officer of the appropriate government for conciliation of the dispute. Sub-section (3) of section 2A lay down the time limit for making such application to the Labour Court or Tribunal. It provides that such application to Labour Court or tribunal shall be made before expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of services as specified in sub- section-1. This right is available to the workman without affecting the remedy available under section 10 of the Act.

Reading of section 2A (3) leads to an irresistible conclusion that time stipulated for invoking jurisdiction of the Labour Court or the Tribunal as the case maybe, has to be necessarily before the expiry of three years from date of discharge, dismissal, retrenchment or otherwise termination of services as specified in sub-section (1). It is mandatory, not directory. Now, in the present case, admittedly, services of the workman were allegedly terminated on 24.06.2011. Failure report has been given on 19.03.2014 and he has filed the claim petition on 05.05.2014. All the conditions set out in condition 2A (2) and 2A (3) of the Act are fulfilled, therefore, the preliminary objection as mentioned in issue no. 3 is not maintainable in view of the above said findings. Another objection of the management is that workman has earlier approached the state labour court in karkardoma and later on withdrawn the same, but, that does not effect, if, the claimant fulfils the condition prescribed under section 2A (2) and 2A

(3) of the Act. No finding on merit has been given by the said labour court, so, the principle of res-judicata cannot operate. It is only the technicality that the workman had withdrawn the claim from there. Therefore, issue no. 3 goes in favour of the workman and against the management.

Now, issue no. 2 has been taken. In order to prove its case, workman’s case rests upon the premises that on 24.06.2011 workman services have been terminated illegally without following any provision of law. Before proceeding further, the language of Section 2(oo), which defines the term 'retrenchment', and Section 25F of the Act, which sets out the conditions to be complied with by an employer before retrenching a workman, is required to be reproduced herein: [(oo) “retrenchment” means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include—

(a) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or [(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or] (

c) termination of the service of a workman on the ground of continued ill-health;] 25F. Conditions precedent to retrenchment of workmen: No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until- (a) the workman has been given one month’s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay 2 [for every completed year of continuous service] or any part thereof in excess of six months; and

(c) notice in the prescribed manner is served on the appropriate Government 3 [or such authority as may be specified by the appropriate Government by notification in the Official Gazette]. From the perusal of the above sections, it is clear that in industrial law, there is no absolute protection given to the claimant/workman against retrenchment under the Industrial Disputes Act, 1947. An employee can be retrenched by an employer if certain conditions are fulfilled. The first exception has been provided within the definition itself, namely when a

workman is terminated by way of disciplinary action. Other exceptions include voluntary retirement, superannuation as per contract, non-renewal or termination of a contract on its expiry, and termination due to continued ill-health. Here, admitted position of both management and workman is that his services came to an end on 24.06.2011. The only difference is that management has submitted that workman has abandoned his job while the workman submitted that his services have been terminated as he demanded for the PF and ESI facilities. On 24.06.2011, his personnel identity card (PIC) was snatched and he was not allowed to enter into the airport premises for performing his duties. For this management has not brought any evidence by producing the documents showing his absence from 24.06.2011 onwards. Moreover, the management’s witness has admitted in his cross-examination that the management has not sent any letter calling the claimant to join his duty. Therefore, in the absence of evidence of management, workman assertion is accepted as true considering the fact that his services stood terminated on 24.06.2011, much before the expiry of the contract which has come to an end on 31.07.2011. The facts further establish that on 28.07.2011, workman had written to the management the letter regarding his illegal termination. If, he has abandoned his job, then, he would not write such letter to the management asking to reinstate. Hence, issue no. 2 goes in favour of the workman and against the management.

Now, the question arises as to what relief the workman is entitled. As a general rule, when termination is declared illegal, the appropriate relief is reinstatement with full back wages. It has been held by the Hon’ble Supreme Court of India in the case titled as Employers, Management of central P& D Inst. Ltd. vs. Union of India & Another, AIR 2005 Supreme Court 633 that it is not always mandatory to order reinstatement even after the termination is held illegal. Instead, compensation can be granted by the industrial adjudicator. Similar views were expressed by Hon’ble High Court of Delhi in the case titled as Indian Hydraulic Industries Pvt. Ltd. Vs. Kishan Devi and Bhagwati Devi & Ors., ILR (2007) Delhi 219 wherein it was held by the court that even if the termination is found to be illegal, the relief of

reinstatement with full back wages need not be granted automatically, and the relief may be moulded according to the facts and circumstances of each case, and the court can allow compensation to the claimant instead of reinstatement with back wages. The same principle has been reiterated by the Apex Court in Maharashtra State Road Transport Corporation vs. Mahadeo Krishna Naik 2025 Latest Caselaw 157 SC, wherein it was observed that upon dismissal being aside by a court of Law, reinstatement with full back wages is not an automatic relief and in certain situations, lump sum compensation is a better relief.

Considering the fact that, claimant has served only 11 months and the fact that he has been contesting this litigation for 15 years, a lump sum compensation of Rs. 3,00,000/- (Rupees Three Lac Only) is considered as an appropriate relief. Hence, management is hereby directed to pay compensation of Rs. 3,00,000/- (Rupees Three Lac Only) to the claimant within two months of notification of this award, failing which the management shall also pay interest @ 9% per annum on the aforesaid amount from the date of award until realization. A copy of this award be sent to the appropriate government for notification under section17 of the Act. The file is consigned to record room.

Date: 01.09.2026

ATUL KUMAR GARG

(Presiding Officer) CGIT-Cum- Labour Court-II