Indian Coffee Board vs The Presiding Officer Labour ...
2010 Latest Caselaw 2060 Del

                    *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             W.P.(C) 4195/1999

%                                                 Date of decision: 20th April, 2010

INDIAN COFFEE BOARD                                                  ..... Petitioner
                  Through:                  Mr. A. Subbarao, Advocate.


                                         versus


THE PRESIDING OFFICER
LABOUR COURT NO.X & ANR.                               .. Respondents
                   Through: Mr. Suryakant Singla, Advocate for R-2.



CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                  YES

2.       To be referred to the reporter or not?                  YES

3.       Whether the judgment should be reported                 YES
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner impugns the award dated 5th August, 1998 of the Labour

Court holding the termination by the petitioner of the services of the respondent

no.2 workman to be illegal and unjustified and directing the petitioner to reinstate

the respondent no.2 workman with full back wages and continuity of service.

2. The respondent no.2 workman was working as a Driver with the petitioner.

He applied for and was granted leave from 24th April, 1981 to 21st August, 1981

for visiting relatives and friends in Dubai. However instead of joining back after

the expiry of the leave period, the respondent no.2 workman applied for extension

of leave from 22nd August, 1981 to 18th December, 1981 on medical grounds. As

the application for extension of leave was not accompanied with medical

certificate, the same was not granted. The petitioner on 13th December, 1981 sent a

memo at the residential address at Delhi of the respondent no.2 workman,

directing the respondent no.2 workman to report back for duties. The said memo

was returned unserved. Another memo was sent on 24th September, 1983; the

same was also returned unserved with the postal endorsement that the workman

was out of station for an unknown period. The petitioner on 30th December, 1983

suspended the respondent no.2 workman and initiated departmental inquiry against

him on the ground of unauthorized absence. Two of the Inquiry Officers appointed

failed to submit a report and a third Inquiry Officer was appointed on 16th October,

1984. The respondent no.2 workman also reported for duties in October, 1984 i.e.

after nearly 3 ½ years. The Inquiry Officer submitted a report dated 22nd February,

1985 in which it is inter alia recorded that the respondent no.2 workman had

pleaded guilty to the charge. The Inquiry Officer nevertheless also returned

findings on merits. It was reported that Rule 3 (i), (ii) &(iii) of the Coffee Board

Employees'(Conduct) Rules 1968 required all employees to maintain absolute

integrity, devotion to duty and to do nothing which is unbecoming of a Board

employee; that the respondent no.2 workman was expected to work regularly and

punctually; but the workman had remained on prolonged unauthorized absence

and which was a misconduct. The Disciplinary Authority of the petitioner vide

order dated 6th May, 1985 dismissed the respondent no.2 workman from service

with immediate effect and further ordered that the entire period of unauthorized

absence from duty be treated as on loss of pay and allowances.

3. The respondent no.2 workman raised an industrial dispute which was

referred to the Labour Court. Though the petitioner filed a reply before the Labour

Court but failed to lead any evidence and was proceeded against ex parte. The

Labour Court held that onus was on the management to prove that the inquiry was

conducted in accordance with the principles of natural justice, that the petitioner

management had not led any evidence in this regard and had not even placed on

record the inquiry proceedings; on the contrary it was the plea of the respondent

no.2 workman that the inquiry was against the principles of natural justice. The

Labour Court accepting the unrebutted statement of the respondent no.2 workman

made the award aforesaid impugned in this petition.

4. Though it is the contention of the petitioner that as per the rules of the

petitioner the remedy of the respondent no.2 workman against the order of the

Disciplinary Authority of the petitioner was a departmental appeal and that the

petitioner is not an industry and the reference of the dispute to the Labour Court

was not maintainable but the counsel for the petitioner without prejudice to the

said contentions has urged that from the counter affidavit filed by the respondent

no.2 workman before this Court and the documents produced by him it emerges

that as per the respondent no.2 workman, he had sent applications for extension of

leave from 20th December, 1981 to 18th April, 1982, from 19th April, 1982 to 16th

August, 1982 and from 17th August, 1982 to 14th December, 1982 on medical

grounds, though without any medical certificate. The applications relied on by the

respondent no.2 workman even for extension of leave from 19th April, 1982 to 16th

August, 1982, 17th August, 1982 to 14th December, 1982 and 15th December, 1982

to 14th April, 1983 were for personal work. The Inquiry Officer has however found

that on applications for extension of leave preferred by the respondent no.2, leave

was extended till 18th April, 1982 but inspite of applications for extension from

19th April, 1982 to 12th February, 1984, leave was not granted; that the respondent

no.2 inspite of opportunity did not produce any document of ill health during the

said time. It is argued that the unauthorized absence of the workman w.e.f. 19th

April, 1982 till October, 1984 was admittedly unauthorized. Relying on State of

Punjab Vs. Dr. P.L. Singla (2008) 8 SCC 469, L&T Komatsu Ltd. Vs. N.

Udayakumar (2008) 1 SCC 224 and New India Assurance Co. Ltd. Vs. Vipin

Behari Lal Srivastava (2008) 3 SCC 446 it is contended that the said admitted

unauthorized absence of the respondent no.2 workman is an act of indiscipline and

in the circumstances the penalty of dismissal imposed by the petitioner on the

respondent no.2 workman cannot be said to be unjustified.

5. It is further informed that the respondent no.2 workman has till date been

paid a total sum of Rs.7,95,924/- by the petitioner either pursuant to the orders in

the present proceedings or in compliance of the recovery orders of the Asstt.

Collector or in compliance of the order under Section 17B of the ID Act made in

these proceedings. The counsel for the petitioner has further contended and it is

not controverted by the counsel for the respondent no.2 workman that the

respondent no.2 workman has attained the age of superannuation. The counsel for

the petitioner sates that notwithstanding the same, in compliance of order under

Section 17B, the respondent no.2 workman is being nevertheless paid the monthly

minimum pension to which he would have been entitled to as an employee of the

petitioner.

6. Per contra, the counsel for the respondent no.2 workman, to meet the plea

of the petitioner being not an industry and the reference being not maintainable

also for the reason of the alternative remedy of departmental appeal relies on Tea

Board Vs. First Industrial Tribunal, West Bengal 1978 LAB I.C. NOC 179

where a Division Bench of the Calcutta High Court held the Tea Board to be an

industry and on Jai Bhagwan Vs. Management of the Ambala Central Co-

operative Bank Ltd. AIR 1984 SC 286 where the existence or availability of

another remedy was held not to come in the way of the right of the workman to

raise an industrial dispute. He also contends that the petitioner failed to even

produce the inquiry proceedings before the Labour Court and in the circumstances

no fault can be found with the Labour Court deciding the reference in favour of

the respondent no.2 workman.

7. In my opinion the principle of res ipsa loquitur applies to the present case.

The respondent no.2 workman remained absent for an unusually long time from

22nd August, 1981 to October, 1984. Not only has no evidence/document

whatsoever of illness has been produced but no particulars of the serious

prolonged illness, if any, suffered by the respondent no.2 workman have been

stated. It is unbelievable that the respondent no.2 workman remained ill for such a

long period of time. The respondent no.2 workman has also not given any

particulars of the other reasons which compelled him to remain at Dubai or Abu

Dhabi. It appears that the respondent no.2 workman had gone to Dubai/Abu Dhabi

for better employment prospects and continued to work and earn there for about

three years. The respondent no.2 workman however at the same time wanted to

retain a lien on his employment with the petitioner. The same cannot be permitted.

Besides the judgment (supra) cited by the counsel for the petitioner, the Supreme

Court recently in Union of India Vs. Bishamber Das Dogra

MANU/SC/0887/2009 has reiterated that absenteeism is a gross violation of

discipline. It goes without saying that such absenteeism of a workman can

paralyze the working/functioning of the employer. The Labour Court has clearly

ignored the facts which stare one in the face in the facts of the present case. The

award of the Labour Court thus cannot be sustained and is liable to be set aside. In

any case the relief granted by the Labour Court of reinstatement is now not

possible upon the respondent no.2 workman attaining the age of superannuation. It

appears that the respondent no.2 workman has also substantially recovered back

wages awarded by the Labour Court. Indulgence only to the extent that the

respondent no.2 workman shall not be liable to refund of the monies so received

by him notwithstanding quashing of the award of the Labour Court, can be granted

to the respondent no.2 workman. However the respondent no.2 workman is not

found entitled to any other payment than those already received from the

petitioner.

8. The petition in the circumstances is allowed. The award dated 5th August,

1998 of the Labour Court is set aside/quashed.

Litigation expenses having already been paid to the respondent no.2

workman, no order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 20th April, 2010 pp