*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 26th July, 2011
+ W.P.(C) 2866/2008
MAYUR AUTO AGENCY ..... Petitioner
Through: Ms. Purbali Bora , Adv.
Versus
RAMESH SINGH MANRAL ..... Respondent
Through: Respondent-in-person.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may Not necessary
be allowed to see the judgment?
2. To be referred to the reporter or not? Not necessary
3. Whether the judgment should be reported Not necessary
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The challenge in this petition is to the award dated 9 th October, 2006 of the Industrial Adjudicator on the following reference:-
"Whether the services of Sh. Ramesh Singh Manral S/o Sh. Bhupal Singh Manral C/o Rashtriya General Kamgar Mazdoor Union, H.No.379, D-Block, Tisra Pusta, Sonia Vihar, Delhi-94, have been terminated illegally and, or unjustifiably by the W.P.(C)2866/2008 Page 1 of 9 management, and if so, to what sum of money as monetary relief alongwith consequential benefit in terms of existing laws/Government notification and to what other relief is he/are they entitled and what directions are necessary in this respect?"
and directing the petitioner employer to reinstate the respondent workman with full back wages and continuity of service.
2. Notice of the petition was issued and vide order dated 16 th January, 2009, subject to deposit by the petitioner of 50% of back wages in this Court, the operation of the award was stayed. A sum of `87,500/- is stated to have been so deposited. The pleadings have been completed. The petitioner employer in the rejoinder to the counter affidavit of the respondent workman has stated that the petitioner employer has now learnt that the respondent workman has been employed in one M/s Nirmal Bearings since the year 2003 i.e. since prior to preferring the claim against the petitioner employer. Upon the same being put to the respondent workman present in Court on 7 th July, 2011, he denied that he had been so employed though he admitted his signature on one of the documents filed in this regard by the petitioner employer along with its rejoinder; however W.P.(C)2866/2008 Page 2 of 9 the respondent workman offered an explanation therefor. Though the petitioner employer in support of its plea of employment of the respondent workman with M/s Nirmal Bearings has filed other documents also but in view of the disputed questions of fact raised, it was ordered on 7 th July, 2011 that no fresh adjudication can be directed or undertaken. The fact remains that the petitioner employer before the Industrial Adjudicator did not take any such plea; the petition was as such directed to be heard on merits.
3. The possibility of amicable settlement on monetary terms was also explored on 7th July, 2011. While the respondent workman without prejudice to his rights and contentions indicated willingness for settlement upon immediate payment of `1,90,000/-, the counsel for the petitioner employer had on that date taken time to obtain instructions; she has today stated that the petitioner is not willing for the settlement. The counsels have been heard.
4. It was the case of the respondent workman before the Industrial Adjudicator that he had been employed with the petitioner employer since W.P.(C)2866/2008 Page 3 of 9 the year 1997 at a salary of `3,500/- per month; that upon his raising demand for his legal dues, he was not paid salary for the months of July and August, 2002 and his services were terminated without issuing any notice on 16th September, 2002; that he was not reinstated inspite of demand notice dated 1st October, 2002.
5. The petitioner employer had before the Industrial Adjudicator contended that the respondent workman had not completed 240 days in a year with the management; that though he was employed with the petitioner employer since the year 1997 but had on 10 th February, 1999 settled all his dues and left the employment of the petitioner employer; that he rejoined the services in June, 2002 and remained absent from duty from 16th September, 2002 without any intimation and failed to join back inspite of being called upon; it was further pleaded that the petitioner employer was ready to reinstate the respondent workman but without any back wages.
6. The Industrial Adjudicator held that no evidence of the respondent workman having fully and finally settled his account on 10th February, W.P.(C)2866/2008 Page 4 of 9 1999 had been led. It was accordingly held that the respondent workman had been in continuous employment since the year 1997. It was further held that no case as pleaded by the petitioner employer of abandonment of employment by the respondent workman had been made out. It was yet further held that the petitioner employer had failed to prove that it had offered to take back the respondent workman as claimed.
7. The counsel for the petitioner employer relying upon Manager, R.B.I., Bangalore Vs. S. Mani AIR 2005 SC 2179 has contended that the onus was upon the respondent workman to prove that he had completed 240 days of employment prior to termination and the Industrial Adjudicator has wrongly placed the onus on the petitioner employer.
8. In the present case the employment of the respondent workman with the petitioner employer with effect from the year 1997 was admitted by the petitioner employer. The termination was in the year 2002. It was however the defence of the petitioner employer that the period with effect from 1997 was not to be counted since the respondent workman had of his own left the employment and settled his account on 10 th February, 1999 W.P.(C)2866/2008 Page 5 of 9 and had rejoined the services only in June 2002. The onus to prove the same was on the petitioner employer. It was the petitioner employer which was averring a break in the service and for the reason whereof it was contended that 240 days had not been completed. In these facts, no error can be found with the Industrial Adjudicator holding that the onus was on the petitioner employer to prove such break in employment. The Apex Court in similar circumstances in Director, Fisheries Terminal Division Vs. Bhikhubhai Meghajibhai Chavda AIR 2010 SC 1236 held the onus and the best evidence to be in possession of the employer.
9. Even otherwise the counsel for the petitioner employer has been unable to show as to what evidence could have been available with the respondent workman in this regard and which the respondent workman could have proved. On the contrary, the evidence of full and final settlement on 10th February, 1999 claimed by the petitioner employer, in the normal course of human conduct and business is expected to be in custody and possession of petitioner employer only. W.P.(C)2866/2008 Page 6 of 9
10. Even otherwise the plea of the petitioner employer is of the respondent workman having abandoned the employment. The Industrial Adjudicator has rightly held that abandonment is a facet of misconduct and to be actionable, requires a domestic inquiry. Admittedly, no domestic inquiry has been conducted.
11. Even otherwise the findings of the Industrial Adjudicator of there being no break in employment and of the respondent workman having not abandoned the employment are findings of fact, not easily interfereable in exercise of jurisdiction of judicial review.
12. There is thus no merit in the challenge to the award.
13. However as far as the relief granted by the Industrial Adjudicator is concerned, I find that now after lapse of nearly nine years, it is not practical/feasible to direct reinstatement in employment. Even otherwise after such acrimonious relationship, reinstatement is not deemed appropriate. Though the respondent workman has denied employment with M/s Nirmal Bearings but it cannot be lost sight of that no application W.P.(C)2866/2008 Page 7 of 9 under Section 17B of the I.D. Act has been filed by the respondent workman. In the circumstances, it is deemed expedient to award compensation in lieu of reinstatement and back wages. As aforesaid, a sum of `87,500/- has already been deposited by the petitioner employer in this Court and which as on 11th May, 2011 had a maturity value of `93,328/-. It may be noticed that though the petitioner employer was directed on 16th January, 2009 to deposit the said amount within four weeks but the said amount was not deposited for a year. The litigation expenses of `7,500/- were also not deposited by the petitioner employer. Considering all the said factors, I deem appropriate that besides permitting the respondent workman to withdraw the amount lying in this Court, the petitioner employer pays a further sum of `50,000/- towards compensation in lieu of reinstatement and back wages and a sum of `10,000/- towards litigation expenses i.e. total sum of `60,000/- to the respondent workman within four weeks of today. It is ordered accordingly. W.P.(C)2866/2008 Page 8 of 9
14. The writ petition is disposed of. The Registry to forthwith release the amount deposited in the present proceedings in this Court together with all interest accrued thereon to the respondent workman.
RAJIV SAHAI ENDLAW (JUDGE) JULY 26, 2011 bs (corrected and released on 9th August, 2011) W.P.(C)2866/2008 Page 9 of 9