Shri Shiv Kumar vs Hansita
2010 Latest Caselaw 2592 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                W.P.(C) No.19713/2005

                                          Judgment reserved on:23.3.2010
                                          Judgment delivered on: 17.05.2010

Shri Shiv Kumar                                             .......Petitioner.
                                    Through : Mr. Piyush Sharma with
                                              Mr. Rakesh Kumar, Advs.

                                          versus

Hansita                                                .......... Respondent

                                    Through : Ms. Anupma Beniwal, Adv. for
                                              respondent No. 1.

CORAM

* HON'BLE MR.JUSTICE KAILASH GAMBHIR

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

2.      To be referred to Reporter or not?                             Yes

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

Kailash Gambhir, J.

*

1. By this petition filed under Article 226 of the

Constitution of India, the petitioner seeks to challenge the

impugned Award dated 8.5.2002 passed in ID No. 417/1993

whereby the reference was answered by the learned Labour Court

against the petitioner.

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

deciding the present petition are that the petitioner was

appointed by the respondent as a machine man w.e.f 1.11.1976

with the last drawn wages of Rs. 3200 per month, but was not

given legal facilities and on demanding the same, the

management got annoyed and terminated his services w.e.f

18.06.1992. Aggrieved by the same, the petitioner sent a legal

notice dated 21.7.1992 to the respondent to which he received no

reply. Thereafter, he raised an industrial dispute bearing ID No.

417/1993 whereby vide order dated 8.5.2002 the petitioner

workman was held not entitled to any relief. Thereafter, the

petitioner workman filed an application u/s 11 of the I.D Act r/w

section 114 & O.47 R.1 of CPC for review of the above said award

whereby vide order dated 21.4.2004 the said application was held

to be not maintainable. Hence, aggrieved by the award dated

8.5.2002, the petitioner has now filed the present writ petition.

3. Mr. Piyush Sharma, counsel for the petitioner submitted

that the petitioner was appointed by the respondent management

on the post of machine man-cum-supervisor on 1.11.1976 on an

initial salary of Rs. 450/-per month. Counsel further submitted

that the last drawn salary of the petitioner was Rs. 3,200/- per

month. Counsel also submitted that during the entire tenure of

service, the workman did not give any opportunity of complaint to

his superiors and had worked with the management diligently and

honestly. Counsel further submitted that it is only when the

petitioner had raised certain legal demands that the management

got annoyed and when on 18th June, 1992 the petitioner reported

for duty, he was declined duties by the management. Counsel

thus submitted that the service of the petitioner was illegally and

unjustifiably terminated by the respondent management without

their being any rhyme or reason. Counsel also submitted that no

show cause notice was served upon the petitioner nor any

enquiry was set up by the respondent management before

terminating the services of the petitioner. Counsel thus submitted

that the action of respondent No. 1 was clearly in violation of

Section 25-F of the I.D. Act. Counsel further submitted that the

demand notice was sent by the petitioner vide legal notice dated

21st July, 1992 through Registered A.D. cover and UPC, but

despite the service of the said letter the respondent management

refused to reinstate the petitioner. Counsel also submitted that

the petitioner had duly proved his case and in his affidavit filed

before the learned Labour Court, the petitioner clearly took a

stand that he had never received any letters from the respondent

requiring him to join back his duties. Counsel also submitted that

the petitioner had taken a stand that the respondent had forged

postal receipts so as to cover up its illegal and unjustified action

of termination. Counsel further submitted that in his cross-

examination, the petitioner clearly denied the receipt of letter

dated 8th July, 1992, 22nd June, 1992 and 30th June, 1992

alleged to have been sent by the respondent to the petitioner

through UPC. Counsel also submitted that the service by way of

UPC is a weak piece of evidence and, therefore, the learned

Labour Court wrongly believed the said letters alleged to have

been sent by the respondent to the petitioner under UPC. In

support of his arguments counsel for the petitioner placed

reliance on the judgment of the Apex Court in Shiv Kumar &

Ors. Vs State of Haryana & Ors. 1994 SCC (L&S) 904.

Counsel for the petitioner further submitted that one of the

letters was alleged to have been sent by the respondent on 22nd

June, 1992 which infact was a holiday in the respondent

management and the petitioner cross-examined the witnesses of

the respondent management on this aspect also. Counsel for the

petitioner further submitted that in response to the reply of the

respondent dated 24.8.92, the petitioner categorically took a

stand that he had never received any letters as were referred to

by the respondent in their reply and through dubious means the

respondent had obtained the service of posting from the post

office. In the said rejoinder, the petitioner also took a stand that

he was willing to join his duties and from the said reply also

called upon the respondent to appear before the Assistant

Labour Commissioner for disposal of the case. Mr. Sharma

submitted that in the letter dated 25.9.92 sent by the

respondent to the Assistant Labour Commissioner which was

proved on record as Ex. RW1/X nowhere the respondent took a

stand that any such request was sent to the petitioner thereby

calling upon him to join back his duties.

4. Refuting the said submissions, counsel for the

respondent submitted that the petitioner himself had abandoned

his service and, therefore, the case of the petitioner was not a

case of illegal termination. Counsel further submitted that vide

letters dated 22nd June, 1992, 30th June, 1992 and 8th July, 1992

the petitioner was called upon to resume back his duties, but the

petitioner himself did not come forward to join his duties. Counsel

further submitted that the said letters were proved on record by

the respondent through the evidence of Mr. Inderjeet Singh, MW-

2 and an employee of the management who himself had posted

these letters. Counsel further submitted that even in the cross-

examination, the petitioner had duly admitted the correctness of

his address stated on these letters and that the presumption

under Section 27 of the General Clauses Act would arise against

the petitioner and in favour of the management. Based on the

above submissions, counsel stated that no fault can be found in

the order passed by the learned Labour Court and in any case

this Hon'ble Court will not reappreciate the findings of the facts as

arrived at by the learned Labour Court the same being the final

fact finding Court. Counsel for respondents No. 1 and 2

specifically submitted that the respondent firm already stands

closed and, therefore, in any case the petitioner cannot be

granted reinstatement. Counsel for the respondent further

submitted that in the registered A.D. reply sent to the petitioner

the respondent categorically took a stand that the petitioner was

duly called upon to join back his duties through various letters

sent under UPC. The contention of counsel for the respondent

was that the petitioner at least cannot dispute the fact of the

receipt of the reply.

5. I have heard learned counsel for the parties and

perused the records.

6. Indisputably, the petitioner was appointed on the post

of Machine man-cum-supervisor on 1.11.1976 and after putting

in service of 16 years he was not allowed to join his duties. Just

within a period of little over one month, the petitioner sent a

demand notice to the respondent management calling upon the

respondent management to allow the petitioner to join back his

duties.

7. The entire thrust of the respondent management to

claim abandonment on the part of the petitioner is based on

letters dated 22.06.1992 and 30.6.1992 and letter dated

7.7.1992 sent by the management through UPCs thereby calling

upon the petitioner to join back his duties. The Ld. Labour Court

has drawn presumption of service of these letters as the same

were sent by UPC carrying correct address of the petitioner and

the labour court finding no justifiable reasons given by the

petitioner not to join back his duties despite receipt of the said

letters found the petitioner not entitled to any relief of

reinstatement or grant of any back wages.

8. It is a settled legal position that the abandonment of

service cannot be readily inferred. Abandonment of service is a

question of intention which can be gathered from the totality of

the facts and circumstances of each case. There has to be a clear

evidence on record to show that despite grant of reasonable

opportunity to the employee by the management, he failed to

join back his duties without any sufficient reasons and therefore

in the absence of any such cogent and convincing evidence,

voluntarily abandonment on the part of the employee cannot be

readily inferred. As per the respondent management, the

petitioner remained absent from his duties w.e.f. 19.06.1992

without permission or leave and was called upon to join back his

duties vide letter dated 22.06.1992 which was proved on record

by the management as Ex. RW 1/1 with certificate of posting

proved on record as RW 1/II. On the failure of the petitioner to

join back his duties another letter dated 30.06.1992 was sent by

the respondent yet again through UPC thereby giving one last

opportunity to the petitioner to return back to his work latest by

7.7.1992, failing which the necessary presumption would be

drawn against the petitioner that he had abandoned his services.

Yet another letter dated 8.7.1992 was sent by the respondent

management to the petitioner by UPC and this time an amount of

Rs.33,500/- was also sought to be returned by him, which

amount the respondent management found outstanding against

him. None of these letters were sent by the respondent

management through registered AD and on the other hand the

petitioner sent a demand notice dated 21.7.1992 through

registered AD which was replied by the respondent management

vide their reply dated 24.08.1992 wherein the respondent

management also gave reference of the above said letters sent to

the petitioner by UPC. The petitioner in his rejoinder dated

3.9.1992 clarified to the respondent management that such

letters were never received by him. The petitioner also sought to

castigate the respondent in adopting dubious means in obtaining

some certificates of posting from the post office to prove service

of the said letters. No doubt that under Section 27 of the General

Clauses Act service through UPC does give rise to a presumption

but certainly service through UPC is a frail piece of evidence. The

respondent management has failed to prove on record any

dispatch register or any other documentary evidence to show that

the said letters were dispatched by the respondent management

in their normal and ordinary course of business . The petitioner

who had put in 16 years of long service is not expected to be

thrown out of employment just based on three UPC letters

purported to have been sent to him requiring him to join back his

duties. Had the petitioner been not willing to join back his duties,

he would not have sent demand notices just within a period of

one-and-a-half month of his termination and immediately

thereafter having raised an Industrial Dispute.

9. Hence, the totality of the facts do not justify that in

the aforesaid back drop of the circumstances the petitioner would

have voluntarily abandoned his services. It is not in dispute that

the respondent did not issue any memo or set up an enquiry for

the unauthorized absenteeism of the petitioner from his duties

and it is quite evident that with the help of such UPC letters the

respondent prepared the ground to circumvent the legitimate

rights of the petitioner. It is a settled legal position that

normally this court while exercising jurisdiction under Article 226

of the Constitution of India, would not interfere in the findings of

facts arrived at by the Tribunal but in the facts of the present

case, the findings on the very face of it appear to be irrational

and perverse. In the case of Seema Ghosh vs.TISCO (2006) 7

SCC 722 it was held that when the judgment of the Labour Court

is perverse and against the facts and records, the High Court is

entitled to exercise its jurisdiction under Article 226 and to

interfere with the perverse finding and set aside the same. It

would be worthwhile to refer to yet another judgment of the Apex

Court in the case of ONGC v ONGC Contractual Workers

Union (2008)12 SCC 275 where it was held that:

"We have examined the arguments advanced by the learned counsel. This Court has held time and again that the High Court had the authority to enquire as to whether a finding arrived at by the Tribunal was based on evidence and to correct an error apparent on the face of the record. The observations in Trambak Rubber Industries Ltd. case2 are to this effect and it has been highlighted that the High Court would be fully justified in interfering with an award of an Industrial Court on account of a patent illegality. In Seema Ghosh case3 this Court observed that the High Court's interference under Articles 226 and 227 of the Constitution with an award of the Labour Court was justified as the award had been rendered contrary to the law laid down by this Court and as a measure of "misplaced sympathy", and was thus perverse. The other judgments cited by Mr Dave lay down similar principles and need not be dealt with individually. It will be seen therefore that the interference would be limited to a few cases and as already noted above, in the case of a patent illegality or perversity."

Therefore, the Labour Court, without giving any weightage to the

claim of the petitioner, unreasonably inferred voluntary

abandonment on his part just based on the said UPC letters

alleged to have been sent by the respondent.

10 . Hence, in the light of the above discussion, I find

considerable merit in the present petition and the same is

allowed. The respondent is accordingly directed to reinstate the

petitioner on the post of 'machine man' with continuity of service

and grant of 50% of back wages.

May 17, 2010                         KAILASH GAMBHIR, J.