Kuldeep Art Press vs Govt. Of Nct Of Delhi
1998 Latest Caselaw 533 Del

JUDGMENT

K. Ramamoorthy, J.

1. The industrial disputes between the petitioner management, and the third respondent, Ram Gopal, workman, was referred to the Labour Court-IV for adjudication by the first respondent. In his statement of claim before the Conciliation Officer, dated 31.3.1987, the workman, Ram Gopal, states his case and the same could be easily stated in the following terms:

2. He had been working in the petitioner press from 8,2.1980 and on 12.12.86 when he reported for duty for that day, the petitioner, management, refused to give him to work. Such an action on the part of the management amounted to terminating the services without notice and, therefore, the action of the petitioner, management, was illegal and it was an unfair labour practice. He was entitled to be reinstated with all back wages. According to him, he sent registered letter dated 12.2.1987 making his demand valid by another registered letter dated 27.2.1987. The petitioner, management, sent a reply dated 9.3.1987 accusing the workman of being absent from duty without any leave. On 13.3.1987, the workman again reported for duty and the management did not permit him to work. The management made another complaint of his being absent from duty by letter dated 25.3.1987. The workman again went to the Press to do work on 29.3.1987 and the management refused to permit the workman to enter the premises.

3. The Government of NCT of Delhi referred the matter for adjudication by notification dated 14.2.1987. The following was the dispute to be decided:-

"Whether the termination of services of Sh. Ram Gopal is illegal and unjustified and if so to what relief is he entitled and what directions are necessary in this respect?"

4. The Labour Court held an enquiry and on the 3rd of January, 1995 passed an award directing the management to reinstate the workman and pay back wages for the period from 12.12.1986 till the date of reinstatement minus wages for two and a half years. The Labour Court rejected the case of abandonment by the workman, put forth by the management. The Labour Court gave a finding that the management failed to give employment to the petitioner and the non-employment was illegal and contrary to the provisions of the Industrial Disputes Act, 1947.

5. The award of the Labour Court dated the 3rd of January, 1995 is now challenged by the management in this writ petition. The third respondent has filed his counter-affidavit. Mr. S.K. Thane, the learned counsel for the management, submitted that the workman, while in service of the petitioner, management, was working in other establishments and he absented himself from duty and he did not want to work with the petitioner and the petitioner never denied employment to him. The Labour Court itself has given a finding that for about two years the workman was in employment in other establishments and, therefore, according to the learned counsel, the workman was not entitled to raise any dispute under the Industrial Disputes Act, 1947. Mr. Thane, the learned counsel for the petitioner, further submitted that the main grievance of the workman appears to be that the new employer of the workman had dispensed with his services and that is why the workman had raised the dispute and if that is so, the course open to the workman, the third respondent, was to raise a dispute as against the new employer and that cannot give him any cause of action for raising an industrial dispute as against the petitioner, management. The learned counsel, Mr. Thane, submitted that the Labour Court had assumed that there was termination of the services of the third respondent by the petitioner, whereas the factual position is that the third respondent himself did not want to work with the petitioner because he was engaged otherwise and that he has completely vitiated the award of the Labour Court. Mr. Taneja, the learned counsel for petitioner, developed his point by stating that the very finding by the Labour Court, that for a particular period the third respondent would not be entitled to back wages, would go to show that the case of the petitioner, management, is true and acceptable.

6. The learned counsel for the third respondent submitted that the award of the Labour Court cannot be challenged by the management and the Labour Court had given clear findings on the questions of fact and that cannot be canvassed in a petition under Articles 226 of the Constitution of India.

7. The learned counsel for the third respondent pointed out that inconsistent stand has been taken by the petitioner, management, by referring to the letter dated the 19th of December, 1989 from Sareen Offset Printers to the Regional Director, Employees State Insurance Corporation, Rajendra Place, and the certificate dated the 14th of November, 1995 issued by Chandu Lal who was doing business of repairing of automatic offset printing machinery at Lajwanti Garden, New Delhi.

8. The letter dated the 19th of December, 1989 written by Sareen Offset Printers, C-8, Mayapuri Industrial Area reads as under:-

"This is to inform you that my factory is running for last 2-1/2 years. The following three workers are working with me:-

1. Ram Gopal 2-1/2 years

2. Sukh Pal 1 year

3. Mare 1 year"

9. The certificate dated the 14th of November, 1995 issued by Chandu Lal reads as under:-

"I hereby confirm that I know, Sh. Ram Gopal S/o Sh. Bishamber Dayal, R/o 79, RZA, Jeewan Park near Janak Puri, New Delhi - 110059 from last 7 yrs. He worked under me on daily wages @ Rs. 100/- to 125/- per day for repairing of offset printing machine from period May/June 1987 to 1993. I use to send him to attend repairing of machines to my various clients when & where it is required by me. He was attending about 15 to 20 such visits approximately every months."

10. The letter dated the 19th of December, 1989 was filed by the management before the Labour Court and, according to the learned counsel for the third respondent, was not proved in accordance with law and that cannot be looked into for any purposes.

11. The certificate referred to above was filed by the petitioner management along with the its reply to the application filed by the third respondent under Section 17B of the Industrial Disputes Act, 1947 in the writ petition. The submission by the learned counsel for the third respondent, workman, was that in the letter dated the 19th of December, 1989 Sareen Offset Printers would state that the workman, Ram Gopal, was working for 2-1/2 years. That means Ram Gopal was working from June, 1987 to 1993. According to the learned counsel for the third respondent, a person cannot work in two places. This only, according to the learned counsel for the third respondent, to highlight the attitude of the management against the workman and the management had put forth a false case.

12. The Labour Court, after considering the documentary and the oral evidence, held:-

"In order to prove his plea the workman, Ram Gopal, himself has examined as WW1 and stated that he worked with the management since 8.2.80 to 11.11.86 continuously without any break. He also stated that he demanded annual increment, doubt overtime and was not provided attendance card and his attendance on register and leave card. It is also slated that on demanding those facilities the management got annoyed and terminated his services w.e.f. 12.12.86 when he went to resume duty and he was also not taken on duty when he presented and to went to join duty on 13.3.87, 293.87 and 4.5.87, on the basis of management letters sent to him. He also stated that he was not paid wages for the period w.e.f. 1.12.86 to 11.12.86. In addition to that he proved the demand notice sent to the management dated 12.2.87 Ex. WW1/1 by postal receipt Ex. WW1/2, another demand notice dated 27.2.87 EX. WW1/3, by postal receipt, EX. WW1/4 received by the management by AD card EX. WW1/5, through which the demand notice EX. WW1/3 was received by the management. Third demand notice EX. WW1/6, postal receipt EX. WW1/7 UPC receipt EX. WW1/8 has also been proved. Complaint to ALC EX. WW1/9 and fourth demand notice EX. WW1/10 against taking the workman on duty on. 29.3.87. Postal receipt and AD card are EX. WW1/11 and WW1/12. Statement of claim filed before conciliation officer is EX. WW1/13 and when the workman was not taken on duty on 4.5.87 he also sent another demand through EX. WW1/14 and proved postal receipt EX. WW1/15, and WW1/16 and AD card EX. WW1/17. On cross-examination also the workman stated that Sh. Kuldip Dugal refused to take him on duty on 11.12.86 in the evening and he did not take him on work from 12.12.86. It has also been stated on cross-examination that he had demanded grant of increment during his service. The workman on cross-examination denied the suggestion put by counsel for the management that he remained absent from duty w.e.f. 11.1.86 and did not report for duty on 13.3.87, 29.3.87 and 4.5.87. However, no suggestion has been given by the management to the workman in the entire cross-examination that he was dismissed from duty after holding enquiry into the alleged misconduct of the workman for his habitual absence from duty.

In the affidavit filed by Sh. Kuldip Ray, Proprietor, and the statement on cross-examination it is only the case of the management that the workman remained absent from duty and did not on duty. In his statement on affidavit the management has also proved in rebuttal the documents and letters EX. M1 to M5, M6 to M12 and M13 to M32. He has also proved document EX. M33 but from these documents the management himself has alleged that the workman remained absent and that he did not join duty. But it has established beyond all disputes that no enquiry was conducted by the management in order to establish the alleged misconduct of the absence of the workman, and if the workman was behaving in that way it was the duty of the management to issue charge-sheet alleging the misconduct by the habitual absence as alleged in the WS and after giving the workman due opportunity of being heard after holding a proper enquiry proper disciplinary action could be taken against him by punishing him properly. But here it has been established beyond all disputes that the workman had remained in employment for years together and the employer-employee relationship cannot be terminated except in accordance with the law applicable. It has also been established beyond all disputes that the workman who remained in the employment for more than six years cannot afford to live without work and no other gainful employment has been specifically for a particular period during or after the termination of his services. In view of these facts being of record, letters received by the management and the letters written by the management to the workman it proved beyond disputes that the conflict has gone between the parties and that is why the management who got annoyed from raising demand and alleged the absence did not permit the workman to join duty despite he presented him on the dates stated, and took the plea that he did not come to join duty. In these circumstances I find that the management terminated the service of the workman by way of punishment for the alleged absence without holding any enquiry into the alleged misconduct and thereby that termination amounted to dismissal without holding any enquiry and in violation of the principles of natural justices. That being the said termination is absolutely illegal and unjustified unwarranted under the law and liable to be set aside, and accordingly the workman is entitled to the relief of reinstatement."

13. The learned counsel for the petitioner, Mr. Taneja, submitted that the finding by the Labour Court is not supported by any evidence. I am unable to accept this submission. The Labour Court had gone into the documents and also the oral evidence and the appreciation of the documentary and the oral evidence is very cogent and the approach by the Labour Court is in accordance with law. I do not find any infirmity in the finding given by the Labour Court on the question of the entitlement of the workman for reinstatement.

14. Regarding the claim for back wages, the Labour Court held:-

"So far as the question of back wages is concerned the workman staled that he remained unemployed after the termination of his services except for twenty four months during which he stated his employment elsewhere. The management in its evidence stated that he remained in the gainful employment for two and half years with Sareen Offset Printers and letter proved EX. M-33. However, that letter has not been proved by a competent person who issued that letter, but keeping in view the stand of the workman who did not dispute that fact on cross-examination of Sh. Kuldip Ray I find that the workman remained gainfully employed for two and a half years and accordingly the workman is not entitled for the hack wages for that period. However, the management could not prove-the gainful employment for the entire remaining period from the date of termination, therefore, I find that the workman is entitled to the back wages at the rate of Rs. 1000/- p.m. or the minimum wage permissible under the Minimum Wages Act from time to time for the remaining period i.e. the period from date of his termination i.e. 12.12.80 till the date of his reinstatement minus two and a half year, for which the management proved his gainful employment. Accordingly the management be directed to reinstate the workman immediately and pay his back wages for the period w.e.f. 12.12.86 till the date of his reinstatement minus two and a half year at the rate of Rs. 1,000/- p.m. or the minimum wage permissible under the Minimum Wages Act from time to time which ever is higher. Accordingly this issue stand decided against the management and in favour of the workman."

15. This is also challenged by Mr. Taneja, the learned counsel for the petitioner and he submitted that once the Labour Court come to the conclusion that the workman would not be entitled to back wages for a period of about two years, that would go to show positively that the workman was gainfully employed and he had no intention to coming back to duty in the petitioner, management, and, therefore, the Labour Court had contradicted itself and that is a good ground for holding that the award is not sustainable in law.

16. The learned counsel for the third respondent submitted that there was a misconception on the part of the petitioner, management, with reference to the finding given by the Labour Court on this aspect. The Labour Court had very clearly noticed the case of the workman that the management refused to permit the workman to work from 12.12.1986. According to the workman, on the 11th of December, 1986 some demand was made for overtime by the workman and that was opposed by the petitioner, management. According to the learned counsel for the third respondent, it is only after the petitioner, management, refused to work illegally prevented the third respondent from continuing to work with the petitioner. The third respondent had to earn for himself and that cannot be taken advantage of by the petitioner to try to establish that the workman had willfully absented himself from duty and, therefore, the petitioner, management, was justified in its action.

17. The learned counsel for the third respondent referred to number of authorities to show that under circumstances similar to the one now before me, the courts had decided in favour of the workman and the ratio decidendi laid down in those authorities would govern this case and the writ petitioner has not made out any case for interference. The rulings referred to by the learned counsel for the third respondent are:-

1. "Hindustan Steel Ltd. v. The Presiding Officer, Labour Court, Orissa and Ors.",

2. "Ashok Pandurang Taware v. S.D. Rane, Presiding Officer, and Anr.", 1982 (45) IFLR (Bombay) 150

3."Bharat Singh v. Management of New Delhi and Ors.",

4. "L. Robert D'Souza v. Executive Engineer, Southern Railway, and Anr.",

5. "Nilpur Tea Estate v. State of Assam and Ors., (1996) 1 SCC 60

6. "Baba Saheb Devgonda Patil v. Managing Director, Shri Panchgonda Sahakari Sakhar Kharkhana Ltd.,", 1988(2) LLJ 413.

7. "Municipal Corporation of Delhi v. Shri Sukhvir Singh and Ors.", 53 (2994) DLT 821

18. In Baba Saheb Devgonda Patil's case 1988 (2) LLJ 413, the Division Bench of the Bombay High Court held that the intention to abandon is normally not to be easily attributed to an employee and in the end, everything would depend on the established facts and circumstances of each case.

19. In MCD's case , wherein the question was whether the workman was engaged only for a particular period by the Municipal Corporation of Delhi, this Court held that the Municipal Corporation of Delhi did not produce the best evidence to prove its case and upheld the order of the Labour Court. The Labour Court had rejected the case of the MCD that the workman was employed only on 'daily-wages basis' and after a particular date he did not turn up for work.

20. In Nilpur Tea Estate's case (1996) 1 SCC 60 the case before the Supreme Court was: The management issued a charge-sheet to the workman alleging certain misconduct coming within the purview of the standing orders. A domestic inquiry was held and on the basis of the inquiry officer against the workman, the services of the workman were dispensed with. There was an industrial dispute and the Labour Court passed an award setting aside the order of termination and directing the reinstatement of the workman. The validity of the award passed by the Labour Court in January, 1988 was challenged. The writ petition was dismissed by the High Court on the 24th of June, 1993. The writ appeal was dismissed on the 29th of September, 1993. During the pendency of the writ petition, the workman was reinstated. The management, by order dated the 19th of April, 1988, terminated the services of the workman. The second order of termination was not challenged by the workman. On the 11th of October, 1993, the management requested the workman to vacate the staff quarter. A suit was filed by the management for possession before the Civil Court. Thereafter, the workman filed an application under Section 33-C(2) of the Industrial Disputes Act, 1947 on the 16th of February, 1994 for computation of the amount of money due to him as back wages payable by the management. The Labour Court in that application passed an order directing the management to, pay the workman the sum of Rs.1,54,851 as dues towards the wages and other benefits payable to the workman for the period commencing from 1.2.1982 till the March, 1994 when the services of the workman were terminated in the second time.

21. The writ petition as well as the writ appeal filed by the management challenging the order of the Labour Court in the application filed by the workman under Section 33-C(2) were dismissed.

22. The argument on behalf of the management was that the direction to pay any amount beyond the period 19.4.1988, when the second order of termination was passed, was not in accordance with law. The Supreme Court accepted that contention mid held that the workman was entitled to wages and other benefits only for the period from 1.2.1988 to 18.4.1988.

23. I am unable to appreciate how this decision could help the management, petitioner in this case, I am of the view that the Labour Court, while passing the award, had considered all the relevant materials and had rendered Findings in accordance with the provisions of law and on the basis of the evidence available on record. I do not find an merits in the case of the petitioner, management. Accordingly, the writ petition is dismissed.

24. There shall be no orders as to costs.