Delhi High Court
The Management Of Marine Products ... vs Ram Pal Singh on 9 November, 2006
Author: S N Dhingra
Bench: S N Dhingra
JUDGMENT
Shiv Narayan Dhingra, J.
1. By this writ petition, the petitioner has challenged the validity of award dated 15.4.2002 passed by the Labour Court-VII, Delhi whereby the Labour Court directed the petitioner to reinstate the respondent with 25% back wages.
2. Briefly, the facts are that the respondent was initially working with the petitioner, thereafter he was regularised with Orissa Shrimp Seed Production Supply and Research Centre (OSSPARC in short) at Orissa as a driver. He was working at Orissa, in the meantime the petitioner acquired a Maruti Van and the petitioner required a contingency driver on a consolidated salary of Rs. 1,300/- p.m. The respondent, who was a regular employee with OSSPARC, Orissa, availed the opportunity and offered for working in Delhi as a Contingent Driver on a consolidated salary of Rs. 1,300/- p.m. The letter of the petitioner, written in respect of offering the service reads as under:
Kindly refer to your Telex No. 887 dated 13.6.89 regarding Shri Ram Pal Singh, Driver. The post of driver for the Maruti Van which has already been purchased is yet to be created. Pending creation of post of driver, this office will consider to take the services of Sh. Ram Pal Singh as contingent driver, on a consolidated salary of Rs. 1300/- per month. Later on, in case he is employed on long term basis, MEPDA can review the matter to consider to grant him regular scale and other benefits.
In case Shri Ram Pal Singh, Driver, is interested to come over to New Delhi on a consolidated salary of Rs. 1300/- per month, his formal consent may be sent immediately.
3. It is admitted fact that the respondent worked with the petitioner up to 17.12.1991 and thereafter he absented without any leave application. He reported for duty on 28.8.1992 stating that he was suffering from T.B. and undergone treatment in his native place, but he was not allowed to join on the ground that he has already abandoned his service. The respondent challenged the action of the petitioner in not allowing him to join and the following dispute was referred for adjudication to the Industrial Tribunal:
Whether Sh. Ram Pal Singh has abandoned his services or the same have been terminated illegally and/or unjustifiably by the management, if so, to what relief is he entitled and what directions are necessary in this respect?
4. The Industrial Tribunal held that it was not a fit case for management to punish. The respondent had fallen sick so, he could not report for duty and when he went to join the duty, he was not allowed to do so. The management neither issued any show-cause notice nor held any enquiry before terminating the service, therefore, the Tribunal directed that the respondent be reinstated with 25% back wages.
5. The petitioner had become ex-parte before the Tribunal after filing written statement. The petitioner counsel submitted that the petitioner had engaged a counsel in Delhi and the Counsel without any intimation to the petitioner, had stopped appearing in the case and, therefore, the petitioner got proceeded ex-parte.
6. The award of the Tribunal has been challenged on the ground that the petitioner was not afforded an opportunity to defend his case because of the negligence of the advocate. The petitioner was not an industry within the meaning of Section 2(j) of Industrial Dispute Act. The Labour Court failed to consider the ratio of Supreme Court in Himanshu Kumar Vidyarthi and Ors. v. The State of Bihar and Ors. 1997 (4) SSC 391. It is submitted that the services of the respondent were not terminated by the petitioner by any of its act. The termination contemplates an act on the part of the an employer by which the services are put an end. It was the respondent who had stopped coming to the office. He was a contingent driver engaged to drive Maruti and when he failed to report to the office, the petitioner, was bound to engage someone else as a driver so as to drive the Maruti Van for official purpose. The case of the respondent was covered under Section 2(oo)(bb) and did not amount to retrenchment.
7. In the counter affidavit, the respondent had not disputed the facts but has taken the stand that the award of the Tribunal was justified and perfectly legal.
8. It is apparent on the persual of the award that it was a stand of the respondent that he was a Contingent Driver. The letter reproduced in para 2 above shows that no permanent post of driver was created and the respondent was engaged as a Contingent Driver. He had worked as a Contingent Driver for about two years at a salary of Rs. 1300/- p.m., when he absented without any intimation. There was no act on the part of the petitioner in terminating the services. The petitioner had engaged only one driver for driving the Maruti Van and if the respondent had informed to the petitioner that he had fallen sick and was not in a position to come to the office temporarily, the petitioner would have made an alternative arrangement only for few days. But in view of the act of the respondent in not intimating either about his illness or going to his village or his intention to rejoin the petitioner after sometime, no fault can be found with the petitioner in engaging someone else to drive the vehicle and when the respondent reported after about 2 1/2 months telling him that he had abandoned the service in the eyes of the petitioner. However, considering the fact that the respondent had earlier worked with the petitioner then he was permanently absorbed at the post of a driver in Orissa and again shifted to Delhi when he found that there was a vacancy in Delhi, I consider that the interest of justice would be served if the respondent is given a suitable compensation. The award of the Tribunal is modified, instead of direction of reinstatement and 25% back wages, it is directed that the respondent be paid a sum of Rs. 40,000/- as lump sum compensation in lieu of reinstatement and back wages.
