Sanjay Enterprises vs Shri Sita Ram
2011 Latest Caselaw 3703 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision: 3rd August, 2011
+                           W.P.(C) 239/2009

          SANJAY ENTERPRISES                                    ..... Petitioner
                      Through:            Mr. R.K. Jain, Adv.

                                      versus
         SHRI SITA RAM                                 ..... Respondent
                            Through: Mr. Brahmanand Gupta, Adv.for R-2
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may       Not necessary
         be allowed to see the judgment?

2.       To be referred to the reporter or not?             Not necessary

3.       Whether the judgment should be reported            Not necessary
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The writ petition impugns the award dated 29 th August, 2008 of the

Industrial Adjudicator awarding to the respondent workman `60,000/- as

lump sum compensation in lieu of reinstatement.

2. Notice of the petition was issued and subject to the petitioner

employer depositing the award amount in this Court, the operation of the

award was stayed. The counsels for the parties have been heard.

3. The claim of the respondent workman before the Industrial

Adjudicator was that he had been employed with the petitioner employer

as a Coiling man at a salary of `2,700/- per month for six years prior to his

termination; that he was however not issued any appointment letter or

given other benefits and not even paid the minimum wages; that he could

not attend to his duties from 27th September, 2005 to 9th December, 2005

on account of illness; that on 10 th December, 2005 when he returned for

duty, though the petitioner employer obtained his signatures on several

documents but did not pay wages for the month of November, 2005 and

instead terminated his service without any reason whatsoever; that though

he approached the Labour Commissioner on 20 th December, 2005 but

inspite of the recommendation of the Labour Commissioner he was not

reinstated; that he got issued demand notice dated 3 rd January, 2006 but to

no avail.

4. The petitioner employer contested the aforesaid claim by pleading

that the respondent workman had himself settled the account and left the

job of his own volition as he was unable to continue to work; that the

respondent workman had received the entire amount and nothing remained

due to him; that in fact it was the respondent workman who had not come

forward to join the work and had left the employment of his own volition

and had failed to join inspite of offers made before the Labour

Commissioner.

5. The Industrial Adjudicator on the pleadings of the parties framed the

following issues:-

"1. Whether the workman has himself abandoned the service after taking his dues in full and final settlement?

2. Whether the services of the workman have been terminated illegally and if so, to what relief he is entitled?"

6. The Industrial Adjudicator held that the stand of the petitioner

employer of the respondent workman having abandoned his job after 29 th

November, 2005 and also of having settled his account was mutually

contradictory; that the plea of the petitioner employer of settlement could

not be accepted as the settlement was not effected in terms of Section 2(p)

of the Industrial Disputes Act; that the onus to prove abandonment was on

the petitioner employer and which had not been discharged; no muster roll

to show the respondent workman having remained absent from duty had

been produced; no letters were written calling upon the respondent

workman to join back duty; that temporary absence in any case could not

be abandonment. It was further held that the petitioner employer had also

not made out a case of termination in accordance with Section 25F of the

Act.

7. The findings aforesaid are findings of fact, ordinarily not

interfereable in exercise of powers of judicial review unless perverse or

without any basis whatsoever.

8. As far as the contention of the counsel for the petitioner employer of

the respondent workman having left with full and final settlement of

accounts is concerned, the counsel for the petitioner employer upon being

called upon to show the documents proved before the Industrial Tribunal

of full and final settlement, has invited attention to pages 55&56 of the

paper book which are copies of the Employment and Remuneration

Register and a voucher. While the Employment and Remuneration

Register shows the attendance of the respondent workman for the month of

November, 2005 with salary of the respondent workman as `2,950/- per

month and payment of `2,852/-, the voucher dated 10th December, 2005 is

of `2,690/- towards wages, arrears difference from March, 2005 to

November, 2005. The voucher does not contain any endorsement of

settlement. The Register does contain an endorsement of full and final

settlement but not under the signatures of the respondent workman but

made by somebody else at a different place from the place where the

respondent workman has signed. Neither of the said two documents can be

said to be of full and final settlement to enable this Court to infer that there

is any perversity in the award to the said extent.

9. As far as the case of abandonment is concerned, the counsel for the

petitioner has referred to Raju Sankar Poojary v. Chembur Warehouse

Company 2003 LLR 1150 & Sonal Garments v. Trimbak Shankar Karve

2003 LLR 5 of the Bombay High Court and has also invited attention to

the letters written to the Labour Commissioner.

10. The petitioner employer in the letters to the Labour Commissioner

did not make unconditional offer for the respondent workman to join but

contended that the respondent workman was free to join back without

being entitled to any back wages.

11. I am also of the view that once the Labour Commissioner had

admittedly been approached by the respondent workman had there been

any genuine attempt by the petitioner employer to make the respondent

workman join, the dispute would not have gone to the Labour Court.

Similarly it was open to the petitioner employer to inform the Labour

Court that the dispute ought not to be entertained since the petitioner

employer was willing to take back the respondent workman.

12. The counsel for the respondent workman has also invited attention

to the cross examination of the petitioner employer where the petitioner

employer has admitted that he was not interested in taking back the

respondent workman owing to the eye sight of the respondent workman

being affected.

13. As far as the judgments of the Bombay High Court are concerned, I

have in Mount Carmel School v. The Presiding Officer, Labour Court

MANU/DE/1988/2011 dealt with the same and held the view of this Court

to be as in Anil Chuttani v. The Oil & Natural Gas Corporation 2010

(117) DRJ 433 where on a conspectus of the case law in this regard it was

concluded that abandonment is a facet of misconduct and to be actionable,

a domestic enquiry is necessary. No domestic enquiry in the present case

has admittedly been conducted. Moreover as aforesaid the termination is of

November/December, 2005 and admittedly the Labour Commissioner was

approached immediately and the dispute raised before the Industrial

Adjudicator thereafter without any delay. Had the respondent workman

been not interested in continuing with the employment, he would not have

immediately approached the Labour Commissioner or the Industrial

Adjudicator.

14. There is thus no merit in the petition; the same is dismissed. The

amount deposited in this Court together with interest accrued thereon be

released in favour of the respondent workman in full and final settlement

of the award amount. Litigation costs have already been paid.

RAJIV SAHAI ENDLAW (JUDGE) AUGUST 3, 2011 PP..