Salig Ram & Co. vs Radhey Shyam & Ors
2011 Latest Caselaw 3100 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Date of decision: 4th July, 2011.

+             W.P.(C) No.878/2009 & CM No.1951/2009 (for stay)

%      SALIG RAM & CO.                                            ..... Petitioner
                    Through:            Mr. Arun Mehta, Adv.

                                    Versus

    RADHEY SHYAM & ORS                       ..... Respondents
                  Through: Mr. Brahmanand, Adv.
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
       in the Digest?                                  No.

RAJIV SAHAI ENDLAW, J.

1. The petitioner employer impugns the award dated 13th August, 2007

of the Industrial Adjudicator on the following reference:-

"Whether Sh. Radhey Shyam, Hari Nandan Singh, Ram Naresh, Binder Dev, Upender Prasad, Sahib Hussain, Hafij Ali, Azizulla, Ram Pravesh, Vakil Ahamad, Ram Ayodhya, Fikkan, Madan Pal and Taj Mohammad have resigned or their services

have been terminated illegally and/or unjustifiably by the management, and if so, to what relief are they entitled and what directions are necessary in this respect?"

2. Though the reference as aforesaid was made on a dispute raised by

fourteen workmen but the claim before the Industrial Adjudicator was filed

by seven workmen only and pursued by only five out of the said seven

workmen namely Radhey Shyam, Ram Naresh, Binder Dev, Fikkan and Taj

Mohammad. Sh. Sahib Hussain & Sh. Vakil Ahamad two of the seven

workmen, during the pendency of the proceedings before the Industrial

Adjudicator arrived at a settlement with the petitioner employer and

recording payment of `39,976/- and `42,400/- by the petitioner employer to

the said two workmen, the dispute qua them was finally disposed of and

proceeded qua the claim of the remaining five workmen impleaded in this

writ petition as respondents no.1 to 5.

3. The claim of the contesting respondent workmen was that they were

not being paid their wages within time; they were not being paid increase of

`71/- as per the Notification of the Government w.e.f. 1st February, 2000;

that when they demanded their salary for May, 2000, on 17th June, 2000 their

signatures were forcibly obtained on resignation letters; they were not

allowed to enter into the premises w.e.f. 26th June, 2000; they were not

communicated the acceptance of their resignation letters; they withdrew their

resignations on 27th June, 2000 but were still not permitted to join their duty.

4. The petitioner employer contested the aforesaid claim by contending

that except Sh. Fikkan, the remaining four workmen had tendered their

resignations and had settled their dues fully and finally; that their

resignations were duly accepted and the question of withdrawal of

resignation did not arise. With respect to Sh. Fikkan, it was pleaded that he

had left the services of the petitioner employer w.e.f. 12th May, 2000 and did

not report for duty thereafter.

5. The Industrial Adjudicator has held that the works of the petitioner

employer in which the respondent workmen were employed stood closed

w.e.f. 30th June, 2000; that though the respondent workmen had stated that

their resignations were taken forcibly but they were not able to show that

they filed any complaint against the petitioner employer in this regard. On

the basis of the material before him, the Industrial Adjudicator found that

there was some sort of understanding whereby the petitioner employer was

to pay full and final dues of the workmen against their resignations; that it

was the admitted position that the settled amount was not paid by the

petitioner employer even after obtaining the resignations; that the resignation

letters were duly accepted by the petitioner employer; that after acceptance

of the resignations, the same could not be withdrawn.

6. The Industrial Adjudicator after holding so held that it was not in

dispute that the resignations were not absolute but the petitioner employer

was required to pay the dues of the workmen in full and final settlement in

lieu of resignation and which dues were not paid. It was thus held that the

dispute did not stand settled with the resignation letters. With respect to Sh.

Fikkan it was held that the petitioner employer had failed to make out a case

of abandonment of employment; no notice calling upon him to join back

duty was issued and short term absence could not lead to presumption of

abandonment.

7. The Industrial Adjudicator further held that in view of the works of

the petitioner employer having closed down, reinstatement could not be

directed. Accordingly, compensation in lieu of reinstatement was awarded

to the respondent workmen.

8. From the material on record, it is borne out that the case of the

petitioner employer is that the petitioner employer had delivered cheques for

amounts agreed to be paid in full and final settlement to the respondent

workmen. The said cheques of course remained un-encashed. The amount

which the petitioner employer claims to be due and tendered to each of the

workman in the year 2000 and the lump-sum compensation in lieu of

reinstatement awarded by the Industrial Adjudicator to each of the workmen

is as under:-

       Respondent             Amount due and        Amount awarded by the
                           tendered according to     Industrial Adjudicator
                          the petitioner employer

1. Sh. Radhey Shyam                31,794                    45,000

2. Sh. Ram Naresh                  36,716                    50,000

3. Binder Dev                      42,651                    60,000

4. Sh. Fikkan                       Nil                      50,000

5. Sh. Taj Mohammad                23,811                    35,000

9. The counsel for the petitioner employer has urged that the award is

liable to be set aside insofar as qua workmen other than Sh. Fikkan for the

reason that the Industrial Adjudicator having not found the resignations

tendered by the workmen to have been forced and involuntary and having

further found the resignations to have been accepted prior to the alleged

withdrawal thereof, erred in holding the petitioner employer to have

terminated the services of the respondent workmen and erred in awarding

compensation therefor. It is contended that in view of the findings of the

Industrial Adjudicator, the Industrial Adjudicator ought not to have granted

anything more to the said four workmen than what had been tendered by the

petitioner employer as aforesaid.

10. Insofar as the respondent Sh. Fikkan is concerned, the finding of the

Industrial Adjudicator of Sh. Fikkan having not abandoned the employment

is controverted.

11. Per contra, the counsel for the respondent workmen has contended

that the language of all the resignation letters is identical; they are all in the

same handwriting; there is no explanation as to how the amount tendered

according to the petitioner employer has been computed; that the other two

workmen who had also preferred the claim but who ultimately settled with

the petitioner employer have been paid amounts comparable to the amount

awarded by the Industrial Adjudicator and there is no explanation

whatsoever as to why the said two workmen who had served the petitioner

employer for terms shorter than the respondent workmen were paid more

amount than what was tendered according to the petitioner employer to the

respondent workmen.

12. The counsel for the petitioner employer is not able to offer any

explanation as to why the two workmen with whom the petitioner employer

had settled, were paid amounts more than those offered/tendered to the

respondent workmen. On enquiry, the counsel for the petitioner employer

informed that while according to the petitioner employer a total sum of

approximately `1.40 lacs was payable to the four workmen, the Industrial

Adjudicator has found a sum of `2.40 lacs to be due to the five workmen and

of which `1.20 lacs has been deposited in this Court as a condition for stay

of implementation of the award.

13. At the outset I may state that I am not inclined to interfere with the

award for the reason that the same is not found to be prejudicial to the

petitioner employer. According to the petitioner employer a sum of

approximately `1.40 lacs was payable by it in the year 2000. The award

pronounced in the year 2007 i.e. after about seven years is for a sum of `2.40

lacs only. A sum of `1.40 lacs invested even in Government Securities

would after seven years yield more than `2.40 lacs. The award does not

grant any interest to the respondent workmen. Now, a further time of nearly

four years since the making of the award has elapsed without the respondent

workmen receiving any benefit of the award till date. Needless to add that

once it is found that the petitioner employer has enjoyed the sum of `1.40

lacs payable by it nearly eleven years ago, the award cannot be said to be

perverse. The writ petition is liable to be dismissed on this ground alone.

14. The award as aforesaid is dated 13th August, 2007. The present writ

petition was preferred only in February, 2009. There is no explanation

whatsoever for the long delay in preferring the writ petition. The writ

petition is thus also liable to be dismissed on the ground of laches,

acquiescence and waiver.

15. Even otherwise, no merit is found in the challenge on merits by the

petitioner employer to the award. As far as the respondent Sh. Fikkan is

concerned, the plea of the petitioner employer was of the said respondent

having not reported for duty after 12th May, 2000. The case of the

respondent Sh. Fikkan is that he had proceeded on leave for one month on

12th May, 2000 and thereafter on 26th June, 2000 his services were

terminated. The Industrial Adjudicator has rightly held that no inquiry into

abandonment was conducted by the petitioner employer. It is now the

settled position in law that abandonment is a facet of misconduct and to be

actionable, requires inquiry and which admittedly was not conducted.

Reference in this regard can be made to Anil Chuttani Vs. ONGC (2010)

117 DRJ 433. Thus there is no error in the award qua respondent Sh. Fikkan.

16. As far as the remaining respondent workmen are concerned, the

Industrial Adjudicator has held that since the petitioner employer failed to

pay the amount in terms of settlement inspite of having obtained the

resignations of the respondent workmen, the petitioner employer was in

default and thus liable to pay compensation. It was further held that no

closure compensation was paid.

17. I find some merit in the plea of the respondent workmen of the

resignations having been forced. It is the case of the petitioner employer

also that its works were closed down on 30th June, 2000. The factum of

resignation shortly prior thereto shows that it was the petitioner employer

who wanted the respondent workmen to resign and the resignations were not

of own volition of the respondent workmen. Finding no error in the relief

granted, the deficiency even if any in the reasoning given by the Industrial

Adjudicator would be no ground for interfering with the award.

18. There is thus no merit in the writ petition, the same is dismissed. The

amount of `1.20 lacs deposited by the petitioner employer in this Court

together with interest accrued thereon be released by the Registry of this

Court prorata to the respondent workmen. The petitioner employer is

granted an opportunity to comply with the award and is directed to pay 50%

balance amount of the award to the respondent workmen in terms of the

award within four weeks of today failing which the petitioner employer shall

be liable to pay interest on the said 50% balance amount at the rate of 10%

per annum from the date of the award till the date of payment.

It is clarified that the direction for payment of such interest is made

since the petitioner employer has availed the benefit of the interim order of

this Court and to balance equities arising from the said interim order at the

time of final decision of the writ petition. (See Abhimanyoo Ram Vs. State

of UP (2008) 17 SCC 73 and Ramesh Chandra Sankla Vs. Vikram Cement

(2008) 14 SCC 58).

Costs of litigation have already been paid.

RAJIV SAHAI ENDLAW (JUDGE) JULY 04, 2011 Bs..