Mayur Auto Agency vs Ramesh Singh Manral
2011 Latest Caselaw 3541 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of decision: 26th July, 2011

+                                  W.P.(C) 2866/2008

         MAYUR AUTO AGENCY                                     ..... Petitioner
                     Through:             Ms. Purbali Bora , Adv.

                                   Versus

         RAMESH SINGH MANRAL                    ..... Respondent
                     Through: Respondent-in-person.

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 challenge in this petition is to the award dated 9 th October, 2006

of the Industrial Adjudicator on the following reference:-

"Whether the services of Sh. Ramesh Singh Manral S/o Sh. Bhupal Singh Manral C/o Rashtriya General Kamgar Mazdoor Union, H.No.379, D-Block, Tisra Pusta, Sonia Vihar, Delhi-94, have been terminated illegally and, or unjustifiably by the

management, and if so, to what sum of money as monetary relief alongwith consequential benefit in terms of existing laws/Government notification and to what other relief is he/are they entitled and what directions are necessary in this respect?"

and directing the petitioner employer to reinstate the respondent

workman with full back wages and continuity of service.

2. Notice of the petition was issued and vide order dated 16 th January,

2009, subject to deposit by the petitioner of 50% of back wages in this

Court, the operation of the award was stayed. A sum of `87,500/- is stated

to have been so deposited. The pleadings have been completed. The

petitioner employer in the rejoinder to the counter affidavit of the

respondent workman has stated that the petitioner employer has now learnt

that the respondent workman has been employed in one M/s Nirmal

Bearings since the year 2003 i.e. since prior to preferring the claim against

the petitioner employer. Upon the same being put to the respondent

workman present in Court on 7 th July, 2011, he denied that he had been so

employed though he admitted his signature on one of the documents filed

in this regard by the petitioner employer along with its rejoinder; however

the respondent workman offered an explanation therefor. Though the

petitioner employer in support of its plea of employment of the respondent

workman with M/s Nirmal Bearings has filed other documents also but in

view of the disputed questions of fact raised, it was ordered on 7 th July,

2011 that no fresh adjudication can be directed or undertaken. The fact

remains that the petitioner employer before the Industrial Adjudicator did

not take any such plea; the petition was as such directed to be heard on

merits.

3. The possibility of amicable settlement on monetary terms was also

explored on 7th July, 2011. While the respondent workman without

prejudice to his rights and contentions indicated willingness for settlement

upon immediate payment of `1,90,000/-, the counsel for the petitioner

employer had on that date taken time to obtain instructions; she has today

stated that the petitioner is not willing for the settlement. The counsels

have been heard.

4. It was the case of the respondent workman before the Industrial

Adjudicator that he had been employed with the petitioner employer since

the year 1997 at a salary of `3,500/- per month; that upon his raising

demand for his legal dues, he was not paid salary for the months of July

and August, 2002 and his services were terminated without issuing any

notice on 16th September, 2002; that he was not reinstated inspite of

demand notice dated 1st October, 2002.

5. The petitioner employer had before the Industrial Adjudicator

contended that the respondent workman had not completed 240 days in a

year with the management; that though he was employed with the

petitioner employer since the year 1997 but had on 10 th February, 1999

settled all his dues and left the employment of the petitioner employer; that

he rejoined the services in June, 2002 and remained absent from duty from

16th September, 2002 without any intimation and failed to join back inspite

of being called upon; it was further pleaded that the petitioner employer

was ready to reinstate the respondent workman but without any back

wages.

6. The Industrial Adjudicator held that no evidence of the respondent

workman having fully and finally settled his account on 10th February,

1999 had been led. It was accordingly held that the respondent workman

had been in continuous employment since the year 1997. It was further

held that no case as pleaded by the petitioner employer of abandonment of

employment by the respondent workman had been made out. It was yet

further held that the petitioner employer had failed to prove that it had

offered to take back the respondent workman as claimed.

7. The counsel for the petitioner employer relying upon Manager,

R.B.I., Bangalore Vs. S. Mani AIR 2005 SC 2179 has contended that the

onus was upon the respondent workman to prove that he had completed

240 days of employment prior to termination and the Industrial

Adjudicator has wrongly placed the onus on the petitioner employer.

8. In the present case the employment of the respondent workman with

the petitioner employer with effect from the year 1997 was admitted by the

petitioner employer. The termination was in the year 2002. It was

however the defence of the petitioner employer that the period with effect

from 1997 was not to be counted since the respondent workman had of his

own left the employment and settled his account on 10 th February, 1999

and had rejoined the services only in June 2002. The onus to prove the

same was on the petitioner employer. It was the petitioner employer which

was averring a break in the service and for the reason whereof it was

contended that 240 days had not been completed. In these facts, no error

can be found with the Industrial Adjudicator holding that the onus was on

the petitioner employer to prove such break in employment. The Apex

Court in similar circumstances in Director, Fisheries Terminal Division

Vs. Bhikhubhai Meghajibhai Chavda AIR 2010 SC 1236 held the onus

and the best evidence to be in possession of the employer.

9. Even otherwise the counsel for the petitioner employer has been

unable to show as to what evidence could have been available with the

respondent workman in this regard and which the respondent workman

could have proved. On the contrary, the evidence of full and final

settlement on 10th February, 1999 claimed by the petitioner employer, in

the normal course of human conduct and business is expected to be in

custody and possession of petitioner employer only.

10. Even otherwise the plea of the petitioner employer is of the

respondent workman having abandoned the employment. The Industrial

Adjudicator has rightly held that abandonment is a facet of misconduct and

to be actionable, requires a domestic inquiry. Admittedly, no domestic

inquiry has been conducted.

11. Even otherwise the findings of the Industrial Adjudicator of there

being no break in employment and of the respondent workman having not

abandoned the employment are findings of fact, not easily interfereable in

exercise of jurisdiction of judicial review.

12. There is thus no merit in the challenge to the award.

13. However as far as the relief granted by the Industrial Adjudicator is

concerned, I find that now after lapse of nearly nine years, it is not

practical/feasible to direct reinstatement in employment. Even otherwise

after such acrimonious relationship, reinstatement is not deemed

appropriate. Though the respondent workman has denied employment

with M/s Nirmal Bearings but it cannot be lost sight of that no application

under Section 17B of the I.D. Act has been filed by the respondent

workman. In the circumstances, it is deemed expedient to award

compensation in lieu of reinstatement and back wages. As aforesaid, a

sum of `87,500/- has already been deposited by the petitioner employer in

this Court and which as on 11th May, 2011 had a maturity value of

`93,328/-. It may be noticed that though the petitioner employer was

directed on 16th January, 2009 to deposit the said amount within four

weeks but the said amount was not deposited for a year. The litigation

expenses of `7,500/- were also not deposited by the petitioner employer.

Considering all the said factors, I deem appropriate that besides permitting

the respondent workman to withdraw the amount lying in this Court, the

petitioner employer pays a further sum of `50,000/- towards compensation

in lieu of reinstatement and back wages and a sum of `10,000/- towards

litigation expenses i.e. total sum of `60,000/- to the respondent workman

within four weeks of today. It is ordered accordingly.

14. The writ petition is disposed of. The Registry to forthwith release

the amount deposited in the present proceedings in this Court together with

all interest accrued thereon to the respondent workman.

RAJIV SAHAI ENDLAW (JUDGE) JULY 26, 2011 bs (corrected and released on 9th August, 2011)