Delhi High Court
M/S Swastik Industrial Power ... vs The Labour Commissioner, Govt. Of ... on 7 March, 2011
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 7th March, 2011
+ W.P.(C) 11400/2005
M/S SWASTIK INDUSTRIAL POWER LINES
(P) LTD. ..... Petitioner
Through: Mr. Gulshan Chawla, Advocate.
versus
THE LABOUR COMMISSIONER,
GOVT. OF NCT OF DELHI & ANR ..... Respondents
Through: Mr. Mahesh Srivastava, Advocate
for R-2.
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 challenge in this petition is to the award dated 19th March, 2004
of the Labour Court only in so far as it directs the petitioner employer to
pay to the respondent no.2 workman 50% of the back wages at last drawn
salary of Rs.1,700/- p.m. or minimum wages fixed for that post from time
to time, whichever is higher, from the date of termination i.e. 5th February,
1996 till the date of reinstatement with the consequential benefits. No
challenge has been made to the award in so far as granting the relief of
reinstatement of the respondent no.2 workman.
2. Notice of the petition was issued and the award in so far as directing
payment of 50% of the back wages was stayed subject to the petitioner
employer depositing `10,000/- towards litigation expenses. The said
amount of `10,000/- is stated to have been deposited and the counsel for the
respondent no.2 workman states that the said amount has been withdrawn.
The said interim order has continued in force till now.
3. Though in the year 2008 an application under Section 17B of the I.D.
Act was filed by the respondent no.2 workman but the same was dismissed
in default on 13th August, 2009. No application for its revival has been filed
till now. The record of the Labour Court has been requisitioned.
4. The matter came up before this Court last on 15 th February, 2011
when the counsel for the petitioner employer contended that even though
the petitioner employer had not challenged and had not sought any stay of
the award in so far as for reinstatement, but the respondent no.2 workman
had nevertheless not come forward to rejoin the petitioner employer. The
counsel for the petitioner employer thus contended that the present
proceedings were being pursued only by the Union with the respondent
no.2 workman being nowhere in sight.
5. On the said plea of the counsel for the petitioner employer, the
counsel for the respondent no.2 workman was directed to produce the
respondent no.2 workman in this Court on the next day. He however
expressed inability and sought time till today for the said purpose.
6. Today, the counsel for the respondent no.2 workman states that he
had sent a letter dated 15 th February, 2011 by courier to the respondent no.2
workman, as well as the Union but none has contacted him thereafter. In
the circumstances, the counsels have been heard.
7. Reference made to the Labour court was as under:-
"Whether Shri Prem Singh and Shri Sanjay Kumar have
abandoned their jobs or their services have been terminated
illegally and/or unjustifiably and if so, to what relief are they
entitled and what directions are necessary in this respect?"
8. The counsel for the petitioner employer has contended that the
employer had proved before the Labour Court the letter dated 9 th February,
1996 sent to the respondent no.2 workman to the effect that he had been
absenting without leave since 5 th February, 1996 and asking him to join
duty within 3 days. He has further argued that even in response dated 14 th
March, 1996 to the notice received from the Conciliation officer, the
petitioner employer had pleaded that inspite of the respondent no.2
workman having earlier abandoned the job, the petitioner employer was
even then willing to take him back. The same stand was taken in another
reply dated 18th June, 1996 to the Conciliation Officer. It is argued that in
the circumstances when the respondent no.2 workman had himself
absented, the award for back wages even to the extent of 50% is bad.
9. Per contra, the counsel for the respondent no.2 workman has invited
attention to the award returning a finding that the Labour Inspector had
vide report Ex.WW-1/4 reported that the petitioner employer was not
willing to take back the respondent no.2 workman. He contends that in
view of the said contemporaneous report, the award cannot be faulted with.
He however has no explanation as to why the respondent no.2 workman
inspite of the award has not appeared to join back the employment with the
petitioner employer.
10. A perusal of the record of the Labour Court shows that the finding of
the Labour Court with respect to Ex. WW-1/4 relied upon by the counsel
for the respondent no.2 workman without reference to the said document is
perverse. Ex. WW-1/4 is not a report of the Labour Inspector as construed
by the Labour Court but is merely a notice issued by the Conciliation
Officer in response to the complaint of the respondent no.2 workman. It
was in response to the said notice that the petitioner employer had informed
the Conciliation Officer that it was still willing to take back the respondent
no.2 workman. It is surprising that instead of the said stand of the petitioner
employer before the Conciliation Officer, the reference was made. In fact
there was no dispute in view of the said reply and on which reference could
have been made. The reference to the Labour court itself was thus bad.
11. Though abandonment of service is also a misconduct and for which
action as for termination of employment ought to have been taken by
serving a charge sheet on the respondent no.2 workman and no such action
has been taken, but in view of the proved case of the petitioner employer of
the respondent no.2 workman of his own volition having not joined duty,
the Labour Court has acted perversely in granting the relief of 50% back
wages. The award to the said extent cannot be sustained and is quashed/set
aside.
12. It is also not deemed expedient to allow the award in so far as for
reinstatement though in accordance with law for the reason of the petitioner
employer having not lawfully terminated the employment, to stand
indefinitely. In view of the subsequent event of the respondent no.2
workman having not opted to join the employment with the petitioner
employer, the award to the said extent is also quashed.
13. The petition is accordingly allowed. Since the counsel for the
respondent no.2 workman states that none has been contacting him, it is
deemed not appropriate to direct refund of the litigation expenses of
`10,000/- received from the petitioner employer.
No order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
MARCH 7th , 2011
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