Pioneer Pest Control vs Rajbir Singh & Another
2010 Latest Caselaw 1241 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                           W.P.(C) No.6880/2007

                                    Date of decision : 05.3.2010

Pioneer Pest Control.                                     .......Petitioner.
                               Through : Mr. B.K. Mishra, Adv.

                                    versus
Rajbir Singh & Another.                            .......... Respondents.
                              Through : Mr. Baidhyanath Sah, Adv. for
                                        respondent No.1.

CORAM

* HON'BLE MR.JUSTICE KAILASH GAMBHIR

1.     Whether the Reporters of local papers may
       be allowed to see the judgment?                     Yes

2.     To be referred to Reporter or not?                   Yes

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

Kailash Gambhir, J. (ORAL)

*

1. By this petition filed under Article 226/227 of the

Constitution of India, the petitioner seeks quashing of the Award

dated 8.1.2007 passed by the Labour Court whereby the reference

was answered in favour of the workman and against the petitioner

company.

2. Brief facts as set out by the petitioner relevant for deciding

the present petition are that the respondent was appointed as Pest

Control Helper with the petitioner on 30.4.2001 and after 31.7.2004

he did not report for duty. Thereafter a legal notice dated 15.9.2004

was sent by the respondent workman to the petitioner alleging illegal

termination of his service to which the petitioner replied vide notice

dated 22.9.2004. Subsequently, an industrial dispute bearing ID No.

66/2004 was raised by the respondent and an award dated 8.1.2007,

the respondent was awarded a lump sum compensation of Rs. 35,000/-

in lieu of reinstatement, continuity of service and back wages. Feeling

aggrieved by the same, the petitioner has preferred the present

petition.

3. Counsel for the petitioner submits that he had never

terminated the services of the respondent as he himself had stopped

coming for duty. Counsel further submits that the petitioner

successfully proved on record that the respondent was being paid

salary through cheque on monthly basis. Counsel further submits that

the respondent in his demand notice and the statement of claim took a

false stand of claiming non-payment of his salary, over time wages,

bonus, gratuity, etc and that when it was demanded by the

respondent, the petitioner management got annoyed and terminated

the services of the respondent. The contention of the counsel for the

petitioner is that the petitioner had been paying the salary to the

respondent, as proved on record through the bank statement,

therefore there was no reason for the respondent to have raised such

a false claim of denial of back wages and other benefits to him.

Counsel further submits that in the reply sent by the petitioner to the

said demand notice, the management clearly took a stand that all his

demands and charges were false and fabricated. The respondent

workman was also called upon to give the complete details of his

outstanding dues with proof so that the same could be verified by the

petitioner and instead of giving any response to the same, the

respondent preferred to raise an Industrial Dispute against the

petitioner.

4. Counsel for the respondent on the other hand supports the

finding of the Ld. Labour Court and as per him the same does not call

for any interference by this court while exercising power of

superintendence under Article 22 of the Constitution of India.

5. I have heard counsel for the parties at considerable length

and gone through the records.

6. As per the case set up by the respondent workman, he was

employed with the petitioner management on the post of pest

controller since 28.03.1998 and was illegally removed from service on

3.9.2004, after putting in more than six years of service. It is not in

dispute between the parties that the petitioner management did not

set up any enquiry against the respondent workman for his

absenteeism and even no letter or show cause notice was given by

the petitioner management to the respondent workman so as to call

upon him to show as to under what circumstances he has left the job

or has started absenting himself from duties. The respondent

workman , on the other hand, served demand notice dated 15.9.2004

upon the petitioner management and the same was replied by the

petitioner management vide reply dated 22.09.2004 denying the

demands of the respondent workman. After raising the said demand,

the respondent raised an industrial dispute against his illegal

termination from service.

7. Absenteeism from service is a question of intention which can be

gathered from facts of each case and voluntary abandonment of

service on the part of the workman cannot be readily inferred merely

on account of the fact that the respondent did not join back on his

duties on account of one or the other reasons. Willful refusal on the

part of the workman to report back on his duties must call for some

action from the side of the management which may include serving of

a show cause notice and other follow up actions and in the facts of a

given case, the appropriate action could have been setting up of an

enquiry against the respondent for his misconduct of unauthorized

absenteeism. Abandonment of service is thus a question of fact to be

determined in the circumstances of each case and if in a given case

the petitioner management is successfully able to prove on record

that despite repeated efforts made by the petitioner management

there was refusal on the part of the respondent to join back on his

duties without any sufficient cause, then, it would imply the

abandonment of services by the workman. But normally no workman

would abandon his employment unless there are compelling

circumstances which are sometimes created by the petitioner

management itself or such a workman is able to get a better job or

has better opportunities for self employment. So far the facts of the

present case are concerned, the petitioner management brought MW-

1 Rakesh Kishore, Proprietor, who adduced evidence on behalf of the

petitioner management and in his cross-examination clearly admitted

the fact that the management did not issue any letter to the

respondent workman so as to call upon him to join his duties. He also

admitted that no chargesheet was given to the respondent workman

and no enquiry was conducted against him. The said witness also

admitted that the petitioner management had employed another

workman in place of the respondent workman. Hence, in the face of

the said evidence of the petitioner management the plea of

abandonment taken by the petitioner does not cut any ice. The

respondent workman remained in the employment of the petitioner

management for about six years and in any circumstances he would

not have volunteered to leave his job, therefore, I find myself in

agreement with the findings arrived at by the Ld. Labour Court taking

a view that the services of the workman were illegally terminated by

the petitioner management. The Ld. Labour Court also correctly

placed reliance on the judgment of the Apex Court in Workmen Vs.

M/s Williamson Magor & Co. Ltd. and Anr. 1982 SCC (L&S)

and S.M. Nilajkar and others Vs. Telecom Distt. Manager,

Karnataka, (2003) 4 SCC 27; 2003 LLR 470 (SC), wherein the

Apex Court took a view that the labour laws being beneficial pieces of

legislation are to be interpreted in favour of beneficiaries and in case

of any doubt or wherever it is possible to take two views of a

provision, the benefit must go to the labour.

8. In the light of the above discussion I do not find any

perversity or illegality in the award passed by the Ld. Labour Court.

The case law cited by the counsel for the petitioner in support of his

arguments is of no help to the petitioner in the facts of the present

case. The Ld. Labour Court has already granted compensation

amount in favour of the respondent workman in lieu of reinstatement

to the job, continuity of service and back wages and there is no

further scope to upset or reduce the amount of compensation. At the

time of admission, the petitioner has already deposited the said

amount of Rs.35,000/- in the FDR and it is directed that the said

amount be released by the Registrar in favour of the respondent with

upto date interest accrued thereon. There is no merit in the present

petition and the same is hereby dismissed.

March 05, 2010                   KAILASH GAMBHIR,J
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