Sh. Mansa Ram vs The Management Of M/S Pelican ...
2011 Latest Caselaw 1571 Del

         *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 18th March, 2011

+                               W.P.(C) 15953/2006

%        SH. MANSA RAM                                      .... Petitioner
                      Through:             Mr. H.K. Chaturvedi, Advocate
                                    Versus
         THE MANAGEMENT OF M/S PELICAN
         CERAMIC INUDUSTRIES           ....Respondents
                     Through: None.
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 petition impugns the award dated 30th November, 2005 of

the Labour Court answering the reference:

"Whether the termination of the services of Shri Mansa Ram is illegal and / or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"

against the petitioner workman.

2. Notice of the petition was issued but could not be served on the

respondent employer and was returned with the endorsement that the

premises to which notice was addressed had been demolished by the

DDA.

3. The petitioner workman thereafter furnished a fresh address of

Mr. Ravi Khullar stated to be a partner of the respondent firm and

notice sent to which address was reported to have been refused by the

wife of the said Sh. Ravi Khullar. This Court vide order dated 11 th

May, 2010 proceeded ex parte against the respondent employer. The

record of the Labour Court has been requisitioned and the counsel for

the petitioner has been heard.

4. The counsel for the petitioner workman has stated that the

petitioner workman was appointed as a helper with the respondent

employer with effect from 16th February, 1990 and was in the year

1993 drawing wages, according to the petitioner workman of `1119/-

per month (and according to the respondent employer of `1078/- per

month). It is not in dispute, that the petitioner workman asked for and

was sanctioned leave from 4th June, 1993 to 15th June, 1993 and was to

report on duty from 16th June, 1993; he did not show / report for duty;

that he however sent a Medical Certificate of a "Vaid" for the period

16th June, 1993 to 1st July, 1993; that he was to therefore join duty on

2nd July, 1993 but did not so join duty; he finally reported for work

only on 19th July, 1993.

5. The case of the respondent employer before the Labour Court

was that upon the petitioner workman not reporting for duty on 16 th

June, 1993, he was vide letter dated 21st June, 1993 informed that he

was unauthorizedly absent from duty and asked to report for duty

immediately and his attention was also invited to the Certified Standing

Orders to the effect that in case he did not report for duty within eight

days of expiry of his leave, he would lose lien on his post. It is the case

of the respondent employer that it was only upon the receipt of the said

letter of the respondent employer that the petitioner workman sent the

Medical Certificate of a "Vaid" for the period 16 th June, 1993 to 1st

July, 1993. The respondent employer further claims that upon the

petitioner workman remaining absent after 2nd July, 1993 also, another

registered letter dated 6th July, 1993 to the same effect as the letter

dated 21st June, 1993 (supra) was sent to him and upon his remaining

absent for eight days from 2nd July, 1993 he was in accordance with the

Certified Standing Orders deemed to have left the services and his

name was struck off from the rolls of the company with effect from

13th July, 1993. The respondent employer further claims that when the

petitioner reported on 19th July, 1993, he did not even claim having

sent any Medical Certificate for the period beyond 1 st July, 1993 but

merely stated that he was not in his village, to which address letter

dated 6th July, 1993 was sent. It is further the case of the respondent

employer that though the name of the petitioner workman was so

struck off from the rolls, but the respondent employer on 19th July,

1993 offered to take him back in employment but which the petitioner

workman refused. The respondent employer also claims to have sent a

letter dated 26th July, 1993 to the same effect to the petitioner

workman, offering to take him back in employment. The respondent

employer also claims that a similar offer was made to the petitioner

workman before the Conciliation Officer also but the petitioner

workman did not accept.

6. The counsel for the petitioner workman before this Court

contended that the award is contrary to the D.K. Yadav Vs. M/s J.M.A.

Industries Ltd. JT 1993 (3) Supreme Court 617 holding that without

giving an opportunity of hearing to the workman and without holding

any enquiry, the Standing Orders providing for automatic loss of lien in

case of expiry of eight days absence from duty could not be enforced.

The said judgment was cited by the petitioner workman before the

Labour Court also. However, notwithstanding the same, the Labour

Court decided against the petitioner for the reason of the respondent

employer having proved / established having offered to take back the

petitioner workman into employment and the petitioner workman

having not accepted the same. In view of the said factual finding, a

case of abandonment was held to have been made out and it was

further held that there is no illegality or unjustness in the action of the

respondent employer.

7. In view of the aforesaid finding of fact in the award, it has been

enquired from the counsel for the petitioner workman as to how the

award could be said to be perverse or contrary to law. The counsel for

the petitioner workman has contended that the findings aforesaid of the

Labour Court of having offered employment to the petitioner workman

are contrary to the record in as much as the witnesses of the respondent

employer in his cross examination before the Labour Court admitted

that no such notices had been issued to the petitioner workman.

8. Ordinarily the findings of fact returned by the Labour Court /

Industrial Tribunal are not to be interfered with in exercise of

jurisdiction under Article 226 of the Constitution of India. However, in

view of the contention raised, the record of the Labour Court has been

perused to find out whether there is any perversity in the said findings.

The petitioner workman in his cross examination, though denied the

suggestion that on 19th July, 2003 when he admittedly visited the works

of the respondent employer, he was offered employment but admitted

receipt of the letter dated 26th July, 1993 of the respondent employer

offering him employment; though he claimed to have been refused

work when he went to the respondent employer after two / three days

of the receipt of the said letter but admitted that he had not replied to

the same.

9. As far as the argument with respect to the cross examination of

the respondent employer‟s witness is concerned, I do not find any

admission as argued. The petitioner workman along with the writ

petition has not even filed the copy of the cross examination with

respect whereto argument has been raised. From the record of the

Labour Court also no part of the cross examination was highlighted.

On the contrary, I find that the respondent employer has also proved

before the Labour Court the copy of the reply filed before the

Conciliation Officer and which is also found to contain the offer of the

respondent employer to take back the petitioner workman into duty. It

appears that the reference made to the Labour Court was not at all

necessary and has been made mindlessly. Thus, no perversity can be

found in the award of the Labour Court.

10. A perusal of the writ petition also shows that what has been

argued has not been pleaded. Rather the petition is based on D.K.

Yadav (supra) and on other judgments following the said judgment.

11. I have in Anil Chuttani Vs. The Oil & Natural Gas Corporation

2010 (117) DRJ 433 had the occasion to consider such provisions in

the Certified Standing Order. However, in view of the facts, the legal

question is not found to arise. When, notwithstanding the action under

the Standing Order, even if contrary to law, the respondent employer

had offered to take back the petitioner workman into employment and

the petitioner workman has been held to have not availed of the said

opportunity, no case for interference with the award in writ jurisdiction

is made out.

The petition is dismissed. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) MARCH 18, 2011 „gsr‟ (Corrected and released on 18th April, 2011)