M/S Freeze King Industries Pvt. ... vs Presiding Officer, Labour Court ...
2001 Latest Caselaw 513 Del

ORDER

Dr. Mukundakam Sharma, J.

1. This writ petition is preferred by the petitioner/management being aggrieved by the award passed by the Labour Court No. 2, Delhi dated 8.12.1998 in I.D. Case No. 611/1992. By the aforesaid award the Labour Court held that the termination of the services of respondent/workman by the management was illegal and unjustified and that he was entitled to reinstatement to the job of the management with continuity and full back wages.

2. A reference was made on a dispute between the workman and the management with the following terms:-

"Whether the dismissal from service of Shri Arun Kumar is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"

Subsequently however, by a corrigendum dated 4.10.1993 the terms of reference were amended by the Secretary (Labour), Government of the National Capital Territory of Delhi to the effect:-

"Whether Shri Arum Kumar has abandoned his job or his services have been terminated illegally and/or unjustifiably by the management and if so, to what relief is he entitled and what directions are necessary in this respect?"

3. Pursuant to notices issued, the workman filed statement of claim. The Management contested the claim and filed written statement. On the basis of pleadings of the parties two issues were framed to the following effect:

1. Whether the workman has abandoned the job?

2. To what relief, if any, is the workman entitled against the management in terms of reference?

Evidence was received both from the management and the workman and arguments were heard by the learned Labour Court. On appreciation of the evidence on record the Labour Court held that on 20.11.1991 although the workman reported for duty but the management refused to accept the said management and accordingly, it was held that the workman had not abandoned the job as alleged by the management but he was refused duty by the management and the said issue was accordingly, held in favor of the workman. So far issue No. 2 is concerned, it was held by the learned Labour Court that the management having not issued any notice to the workman nor having paid any compensation before the termination of services of the workman, non-compliance of the provisions of section 25(f) of the Act on the part of the management was established on the record and accordingly it was held that the termination of the services of the workman by the management was illegal and unjustified and that he was entitled to reinstatement to the job of the management with full back wages.

4. Mr. Vohra appearing for the petitioner submitted that the reference in the present case was in fact the third reference which is not permissible. He submitted that multiplicity of the same proceedings is not contemplated in law and the original reference having been decided by the Labour Court he became a functus officio and therefore, could not have decided the subsequent reference made to him. Counsel further submitted that the appropriate Government in the instant case was the Central Government and that there was no delegation of the said power of the Central Government to the State Government and therefore, the reference made by the State Government was bad in law and the same was no reference in the eye of law. He further submitted that when the Labour Court had earlier held that there was no dispute and a 'no dispute award' was passed by the said Labour Court, it could not have been held by the Labour Court that there was a valid dispute and pass an award in respect of the said dispute. He also submitted that the conclusions and findings of the Labour Court are perverse, for the Labour Court failed to assess the statement of witnesses examined by the management. He also submitted that grant of back wages by the Labour Court after a lapse of considerable years of termination is bad in law and is therefore, liable to be set aside.

5. Counsel appearing for the respondent/workman refuted all the aforesaid allegations and submissions and contended inter alia that neither the reference was bad in law nor the award could be said to be illegal and without jurisdiction. He submitted that on 16.11.1991 there was a fresh cause of action and therefore, reference pursuant to the said cause of action and dispute, is valid and the Labour Court was bound by the terms of reference. He further submitted that the appropriate Government in the instant case is the State Government and in support of his contention he relied upon the decision of the Full Bench of this Court in M/s. Indian Tourism Development Corporation Vs. Delhi Administration, Delhi and others, reported in 1982 Lab. I.C. 1309. He also submitted that the award was passed in proper assessment of the evidence adduced by the parties and the conclusions and findings of the learned Labour Court being conclusion of fact, the petitioner is not entitled to assail the same through the present writ petition.

6. In the context of the aforesaid submissions of the counsel appearing for the parties I have perused the records placed before me. The issues raised in the present petition by the petitioner that the reference is bad in law and without jurisdiction was never raised before the Labour Court. The same are being raised for the first time in the writ petition. It is disclosed from the records that the respondent workman was employed with the management since 1973 on a monthly salary of Rs. 1,145/-. It is also the admitted position that the workman was transferred on 17.9.1988 to Faridabad and that on refusal of the workman to join there the petitioner suspended the workman and an enquiry proceeding was drawn up against him. After completion of the enquiry on the charges drawn against the respondent/workman and on submission of the enquiry report the management withdrew the order of transfer and by letter dated 16.11.1991 the management asked the workman to join duty in Delhi. It is stated in the pleadings that the workman wanted to join duty on 20.11.1991, keeping his right to back wages for the period of suspension open and legal right reserved, but the management without settling the said dispute refused the workman to join duties. Therefore, a fresh cause of action on a fresh dispute had definitely arisen after 16.11.1991 when the workman was directed to join duties pursuant to which the workman also desired to join his duties when it is alleged that the management did not allow him to join duties. On the aforesaid pleadings and statement of claim it is apparent that a fresh cause of action on a dispute had arisen in terms of which request was made for reference. Initially i.e. on 17.9.1988 the workman was transferred to Faridabad from Delhi. Being aggrieved by the aforesaid order of transfer the respondent/workman approached the Labour Department of Delhi Administration in respect of his alleged malafide transfer. But the Delhi Administration wrongly referred the said dispute as a dispute of illegal termination for which the workman had to again approach Delhi Administration for correction of the said reference. When a corrigendum was issued in respect of the said reference and the reference regarding alleged malafide transfer was referred to the Presiding Officer, Labour Court for passing an award, the management withdrew the order of transfer and the management directed the workman to join duties at Delhi.

7. In view of the aforesaid position the said dispute had become infructuous and therefore, a 'no dispute award' was passed by the Labour Court. Once the management had withdrawn the said malafide transfer order the respondent exercised his right to join his duties and the respondent workman reported for duty on 20.11.1991 but he was not allowed to join by the management and his services were terminated by the management on 20.11.1991, which was challenged by the aforesaid reference as illegal and unjustified. It is therefore apparent that under the aforesaid circumstances the initial reference had become infructuous and in that view of the matter a 'no dispute award' was passed. So far the present dispute which was referred to the Labour Court for adjudication there is indeed a dispute between the parties which was legally referred to in terms of the aforesaid reference and therefore, the submission of the learned counsel appearing for the petitioner is without any merit.

8. So far the contention of the counsel appearing for the petitioner that the reference is without jurisdiction and is not maintainable on the ground that the Central Government is the 'appropriate government' the said submission is also without merit in view of the decision of the Full Bench of this court in M/s. India Tourism Development Corporation (Supra). In the said decision the Full Bench of this Court decided that the Administration in the Union Territory of Delhi is vested in the President and he had entrusted the same functions to the Lt. Governor and that all industrial disputes which are outside the definition in section 2(a)(i) of the Act are the concern of the State Government under section 2(a)(ii) of the Act. Having held thus the Full Bench decided that the President is State Government within the meaning of section 2(a)(ii) of the Industrial Disputes Act in relation to Union Territory of Delhi. In view of the aforesaid position and the decision of the Full Bench of this court, the issue and the plea raised by the counsel appearing for the petitioner is no longer res integra and in my considered opinion in view of the aforesaid Full Bench decision the reference by the State Government is legal and valid and the said submission is also without any merit.

9. It was also submitted by the learned counsel appearing for the petitioner that the findings recorded by the Labour Court are perverse. A bare reading of the award passed would indicate that the Labour Court while considering the first issue has considered the evidence adduced by the parties and on consideration thereof has recorded its findings. The Labour Court has referred to the documentary evidence namely - Ex. WW1/1, Ex. WW1/2 and Ex. WW1/4 which are letter written by the respondent to the management seeking to allow him to join the duties. It was also found by the Labour Court that the witness of the management nowhere in its affidavit of evidence stated that the workman was taken on duty on 20.11.1991. It is also established that the workman was in the employment of the management since 1.1.1973 and his services were terminated by the management on 20.11.1991. Therefore, the Labour Court rightly held that there was no compliance of the provisions of section 25F of the Industrial Disputes Act. The findings recorded by the Labour Court are findings of fact and this court while exercising jurisdiction under Article 226 of the Constitution of India would not and should re-appreciate the evidence in order to come to a contrary finding. The Labour Court has held conclusively on evidenced on record that there was no abandonment of service by the workman and the petitioner did not allow him to join and terminated the services without compliance of the mandatory provisions of Section 25F of the Industrial Disputes Act. The Supreme Court also in GT Land and others Vs. Chemical and Fibres of India Ltd., has held that abandonment or relinquishment of service is always a question of intention and normally such an intention cannot be attributed to an employee without adequate evidence in that behalf and that it is a question of fact to be determined in the light of surrounding circumstances of each case. There is no record to prove and indicate an intention on the part of the workman to abandon his service. No such intention could also be deduced from the attending or surrounding circumstances. The findings recorded ex facie prove and establish that they are based on records and can not be interfered with in a petition under Article 226 of the Constitution of India as was held by the Supreme Court in the decision of Secretary, Haryana State Electricity Board Vs. Suresh and others, reported in 1992 (2) SLR 1.

10. Having held thus, I am now left to decide the last issue raised by the petitioner that the payment of back wages by the Labour Court was unjustified. There is no evidence on record placed by the petitioner to prove and establish that the respondent/workman was otherwise engaged or employed in any other establishment from the date of termination of this services. Therefore, he is entitled to payment of back wages. But the question is whether he is entitled to be paid full back wages or part thereof. The services of the petitioner were terminated by the management on 20.11.1991 and the award came to be passed on 8.12.1998. In any case the management was deprived of the services of the respondent/workman for all these years. Since there was a delay of about 7 years in deciding the matter by the Labour Court and in the facts and circumstances of the present case I am of the opinion that payment of 50% back wages would meet the ends of justice.

11. With the aforesaid modification in the award passed by the Labour Court, the petition stands dismissed holding that the workman shall be entitled to reinstatement and also to the continuity of services. But so far as the back wages are concerned, the petition stands allowed to the limited extent that the workman/respondent shall be entitled to be paid only 50% of the back wages from the date of his termination till the date of his reinstatement. There will be no order as to costs.