D.C.M. Shiram Industries Ltd. ... vs State Of U.P. And Others
2012 Latest Caselaw 3215 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 26
 

 
Case :- WRIT - C No. - 11213 of 1999
 

 
Petitioner :- D.C.M. Shiram Industries Ltd. Daurala Sugar Works
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Tarun Agarwala,S.D. Singh,Vivek Chaudhary
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble B. Amit Sthalekar,J.

A modification application has been filed on behalf of the petitioner. Since the matter has been finally heard, order on the modification application is not required, and the same shall abide the final directions in the writ petition.

This writ petition has been filed by the petitioners challenging the award of the Labour Court dated 31.8.1998 passed in Adjudication Case No. 43 of 1995.

The facts of the case in brief are that the respondent No. 4 was stated to be employed in the Shop of the petitioners since January 1975. He fell seriously ill in the year 1992 and proceeded on medical leave, which was sanctioned for the period from 1.4.1992 to 22.4.1992. The concerned doctor examined him and recommended him rest from 23.4.1992 to 19.6.1992. The case of the respondent No. 4 (since deceased and now substituted by his widow Smt. Vidya) was that he sent a medical certificate with his son to the Department but leave was not sanctioned to him. When he finally reported for duty on 20.6.1992, he was informed that his services have been terminated w.e.f. 20.6.1992 and was not allowed to join, therefore, he submitted a notice through his counsel on 5.2.1993 and thereafter the petitioner, Employers vide their letter dated 13.2.1993 informed that his services had been terminated w.e.f. 9.7.1972 in terms of Para G12 of the standing orders.

An industrial dispute was raised and proceedings were initiated before the Labour Court as Adjudication Case No. 43 of 1995. On behalf of the petitioners-employers, it was contended that they have received medical application for the period of 1.4.1992 to 23.4.1992 but thereafter the workman himself absented from his duties without seeking leave and thereafter the Management sent a registered letter dated 30.4.1992 to the known address of the respondent No. 4. Through this letter dated 30..1992, the workman was required to inform as to the date when he would report so that he could be taken to the Chief Medical Officer for medical examination but the said letter was returned undelivered.

Thereafter, the Management issued a show-cause-notice on 9.6.2012 requiring the workman to show-cause as to why his services may not be terminated but this letter was also returned back with the postal endorsement the "workman was not residing at the mentioned address but had shifted his residence to Daulatram Colony". The petitioners-employers thereupon published a notice in the local newspaper on 24.6.1992 and a corrigendum was also published on 26.6.1992 and even thereafter when the respondent No. 4, workman did not report for duty the order dated 9.7.1992 was passed terminating his services in terms of Para G12 of the standing orders.

I have heard Sri S.D. Singh, learned counsel appearing for the petitioner as well as the learned Standing Counsel for the respondent Nos. 1 and 2. List has been revised but none appears on behalf of the respondent Nos. 3 and 4, although, as per the office report dated 11.7.2012, neither the undelivered cover nor acknowledgement has been received back. Thus notice on respondent Nos. 3 and 4 shall be deemed to be sufficient.

Sri S.D. Singh submitted that from a reading of the impugned award, it would be amply demonstrated that by List 15 (B) (i), the petitioners-employers had filed 10 documents which included the Photostat copy of the relevant pages of the service book of the workman, carbon copy of the Management's letter dated 9.6.1992, the original envelope by which the letter dated 9.6.1992 was returned back by the postal authorities, the cuttings of the newspaper ("Daily Prabhat") dated 24.6.1992 and 26.6.1992 along with postal receipt of the original legal notice of the workman's counsel dated 4.12.1993 and the Management's reply dated 13.2.1993 along with A.D. Receipt.

The learned counsel submits that from the overwhelming documentary evidence filed by the employers before the Labour Court, it could not be said that the workman had no knowledge about the action proposed to be taken against him but he deliberately did not appear in the office of the Management or report for duty and deliberately evaded the various notices sent to him by Registered A.D. Post.

I have gone through the impugned award and perused the documents on record. Even assuming for a moment that the workman had changed his residence, the undeniable fact which clinches the issue is that on behalf of the Management two newspaper publications has been made; one on 24.6.1992 and other on 26.6.1992 and therefore, even if for a moment, it may be accepted that the registered notices had not been received by the workman or had not been served upon him, the fact cannot be ignored that there was a newspaper publication, which would lead to the irresistible inference of adequate notice on the workman. The Labour Court has miserably failed to consider this aspect of the matter.

The finding recorded by the Labour Court that since the workman had changed the place of residence and shifted to Daulatram Colony, the Management could have easily searched for the workman is absolutely misconceived and worthy of rejection. Once a newspaper publication had been made by the Management, notice on the workman would be deemed to be sufficient and thereafter, it was not required of the Management to keep searching for the workman.

At the time of admission while issuing notice, this Court by its order dated 23.3.1999 had given the following directions:

"In the mean time, the enforcement of the impugned award shall remain stayed provided-

(1) the back wages to the extent of 50 per cent payable under the award are deposited with the concerned Industrial Tribunal-cum-Labour Court within two months from today;

(2) a sum equal to wages payable to the workman from the date of the award till the last preceding month is paid to the respondent workman within two months from today; and,

(3) wages at the rate admissible under Section 17-B of the Industrial Disputes Act, 1947 for the succeeding months shall be paid to the respondent-workman, month by month basis, till further orders of this Court.

The back wages so deposited, in terms of this order, shall be invested in some Nationalized Bank by the concerned Industrial Tribunal-cum-Labour Court under an interest earning term deposit scheme. This deposit shall be subject to the ultimate decision of this petition.

In the event of default in complying with any of the aforementioned conditions, the present stay order shall automatically come to an end and award in question shall become enforceable and recovery proceedings, if any, shall revive."

Sri S.D. Singh submits that the directions contained in the interim order of the Court dated 23.3.1999 have been fully complied with. Since no one has appeared on behalf of the respondents, submission of the learned counsel for the petitioner remains uncontroverted.

In the facts and circumstances of the case, the impugned award dated 31.8.1998 is absolutely illegal and arbitrary and based upon mere presumptions and has been passed without application of mind and deserves to be quashed. Accordingly, the impugned award dated 31.8.1998 passed in Adjudication Case No. 43 of 1995 is quashed. The writ petition is allowed. Since the wages as directed in the direction nos. 2 and 3 of the interim order of this Court dated 23.3.1999, have already been paid to the respondent No. 4, nothing further remains to be paid to him so far as the amount which was directed to be deposited with the Industrial Tribunal-cum-Labour Court, it will be open for the petitioner to apply before the Tribunal for release of the same. However, no recovery shall be made from the Respondent No. 4, of the amount already paid to him under the interim order of this Court.

Order Date :- 26.7.2012

Arun K. Singh