Arihant Polymers Pvt. Ltd. vs Sh. Uma Shankar
2011 Latest Caselaw 2290 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Date of decision: 28th April, 2011.

+                  W.P.(C) 7235/2009 & CM No.2930/2009 (for stay)

%        ARIHANT POLYMERS PVT. LTD.             ..... Petitioner
                     Through: Mr. S.K. Ray, Adv. for Mr. K.K.
                              Tyagi, Adv.

                                   Versus

         SH. UMA SHANKAR                                     ..... Respondent
                      Through:            Mr. S. Shahi, Adv. with respondent in
                                          person.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                              No

2.       To be referred to the reporter or not?                       No

3.       Whether the judgment should be reported             No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The writ petition impugns the award dated 14 th August, 2008 of the

Industrial Adjudicator answering the following reference:-

"Whether the services of Shri Uma Shankar have been terminated illegally and / or unjustifiable by the management,

and if so, to what relief is he entitled and what directions are necessary in this respect?"

in favour of the respondent workman but granting the relief only of

payment of lump-sum compensation of `50,000/- to the respondent

workman.

2. Notice of the writ petition was issued and subject to the deposit of

the awarded amount in the Court, execution of the award stayed. The said

amount of `50,000/- has been deposited in the Court. The counsels for the

parties have been heard.

3. It has been enquired from the counsel for the petitioner employer as

to for how many years the respondent workman had worked for the

petitioner employer and at what wages. The counsel for the petitioner

employer states that the respondent workman had worked for six years and

the last drawn salary was `2,100/- per month.

4. The petitioner employer had contested the dispute before the

Industrial Adjudicator by contending that it was the respondent workman

who had abandoned the employment. The counsel for the petitioner

employer has today also argued that abandonment is borne out from the

respondent workman having not joined duty inspite of several letters

written.

5. It is not as if the Industrial Adjudicator has in the award not

considered the said aspect. The letters stated to be written by the petitioner

employer, were stated to be sent to the respondent workman through UPC.

The Industrial Adjudicator has held that there is no proof of their service

on the respondent workman and the service could not be believed in view

of the categorical statement of the respondent workman in his evidence

denying receipt of the said letters. It has also been noted that the only

letter which was sent by registered post AD was admittedly received back

with the postal endorsement that the addressee was not met inspite of

repeated visits.

6. The finding returned by the Industrial Adjudicator of the respondent

workman having not abandoned the job, is a finding of fact and ordinarily

findings of fact are not interfereable in exercise of power of judicial review

under Article 226 of the Constitution of India. Nothing has been shown

that such finding of fact is perverse or not borne out from the record or

unreasonable.

7. I have also enquired from the counsel for the petitioner employer

whether any enquiry was held by the petitioner employer. The answer is in

the negative. I have on consideration of the case law on the said aspect

recently in Hindustan Associates Engineer Pvt. Ltd. Vs. Sh. K.K.

Aggarwal MANU/DE/0291/2011 and also in Anil Chuttani Vs. ONGC

2010 (117) DRJ 433 held that abandonment is also a misconduct and an

employer for terminating the services of an employee/workman on the

ground of abandonment is required to hold an inquiry. In the present case,

the inquiry admittedly has not been held and the order of termination on

the ground of abandonment would be illegal for the said reason also.

8. It has been enquired from the counsel for the respondent workman

whether he has challenged or intends to challenge the award. The counsel

states that no challenge has been made and no challenge will be made in

future. He also states that though under the award interest was also

awarded but the respondent workman in the event of the writ petition being

disposed of today will not claim any interest save the interest earned on the

amount deposited in this Court.

9. No case for interference is made out; the writ petition is dismissed.

The amount of `50,000/- deposited in this Court together with interest

earned thereon be released to the respondent workman forthwith. Costs of

litigation have already been paid.

RAJIV SAHAI ENDLAW (JUDGE) APRIL 28, 2011 bs