Mount Carmel School vs The Presiding Officer, Labout ...
2011 Latest Caselaw 2552 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of decision: 12th May, 2011
+                           W.P.(C) 6716/1999
%        MOUNT CARMEL SCHOOL                      ..... Petitioner
                    Through: Mr. Mr. Ashwani Kumar Sakhuja
                             & Mr. Puneet Saini, Advocates
                                   Versus
         THE PRESIDING OFFICER, LABOUT COURT NO.X,
         KARKARDOOMA COURT & ORS.                 ..... Respondents
                      Through: Ms. Monica Kapoor, Adv. for R-
                               4,6,13,17,19 & 20.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may                        No
         be allowed to see the judgment?

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 writ petition was filed impugning the award dated 21 st January,

1999 of the Industrial Adjudicator holding that 19 out of the 22 workmen

who had raised the dispute of which reference was made, were illegally

terminated by the petitioner School and that the said 19 workmen had not

abandoned their services as contended by the petitioner School and

directing the petitioner School to reinstate the said 19 workmen together

with 50% of the back wages. Though the petitioner School had contested

the dispute before the Industrial Adjudicator, cross examined the witnesses

of the workmen and also examined two of its own witnesses but thereafter

when the matter was listed for remaining evidence of the petitioner School,

stopped appearing before the Industrial Adjudicator and the award was

accordingly made ex parte. The petitioner School thereafter applied to the

Industrial Adjudicator for setting aside of the ex parte award. The said

application was dismissed by the order dated 7 th September, 1999 of the

Industrial Adjudicator which order is also impugned in this petition.

2. The petition came up first before this Court on 4 th November, 1999

when the counsel for the petitioner School stated that as far as the relief

granted in the award of reinstatement was concerned, the petitioner School

was not disputing reinstatement and had rather itself offered to the

workmen to join back. In view of the said statement of the counsel for the

petitioner School, notice of the petition was issued, limited to the award in

so far as awarding 50% of back wages to the 19 workmen aforesaid.

Operation of the said part of the award was stayed and remains stayed.

3. The counsel for the petitioner School today also in the hearing has

contended that the challenge is only to the award in so far as of back wages

to the extent to 50% for the period from the date of termination i.e. 11th

October, 1989 and till the date of the award i.e. 21 st January, 1999. In this

regard, it may also be noticed that it was the plea of nine of the respondent

workmen on 7th January, 2003 before this Court that they had been going

to the office of the petitioner School but were not being taken on duty. An

agreement was arrived at before this Court that the said nine workmen

shall report for duty to the petitioner School on the next date. The order

dated 10th March, 2003 records that of the said nine workmen, only three

were allowed to join duty; with respect to the other six, it was stated that

they were employed as Drivers or Conductors and could not be taken back

on duty without obtaining the valid Certificate from the Transport

Department as per the directions of the Supreme Court. It was accordingly

directed that the petitioner School would issue the necessary experience

certificate to the said six Drivers / Conductors to enable them to obtain the

Certificate from the Transport Department. Five other workmen also

appeared before this Court on 10th March, 2003 and were without prejudice

to the rights and contentions of the respective parties agreed to be taken

back on duty. There are no further orders on the file relating to the said

aspect. It was however informed that no application under Section 17B of

the I.D. Act has been filed inspite of the writ petition having remained

pending before this Court for the last over twelve years. It is contended

that the said fact alone is indicative of all workmen being employed

elsewhere.

4. As far as the challenge to the order refusing to set aside ex parte is

concerned, since the petitioner School had already examined two witnesses

and has not disclosed as to what other important relevant evidence

remained to be led and even otherwise for the reason hereinafter appearing,

there is no merit in the same. To be fair, the counsel for the petitioner has

not addressed any arguments also on the said aspect.

5. As far as the 19 workmen whose claim has been allowed are

concerned, it was not in dispute that they were the employees of the

petitioner School. The petitioner School had admittedly not complied with

the provisions of Section 25F of the Industrial Disputes Act, 1947. The

defence of the petitioner School to the dispute was that the said employees

had abandoned their employment. The Industrial Adjudicator has held that

termination of service on any ground whatsoever required the provisions of

Section 25F of the Act to be complied with, even if it be by way of

abandonment. In this regard, I may notice that it is the consistent position

in law as noticed in Anil Chuttani Vs. Oil and Natural Gas Corporation

2010 (117) DRJ 433, Hindustan Associates Engineer Pvt. Ltd. Vs. Sh.

K.K. Aggarwal 2010 LLR 312 and in Shakuntala's Export House (P) Ltd.

Vs. Secretary (Labour) MANU/DE/0541/2005 also that abandonment is

also a misconduct and to be actionable requires an inquiry to be held. No

error can thus be found in the award of the Industrial Adjudicator to the

said extent.

6. The counsel for the petitioner has referred to Triloki Nath Vs. Sh.

Dharam Paul Arora 2006 LLR 1043 where a Division Bench of this Court

held that if a workman fails to resume duty even when offer is made before

the Conciliation Officer as well as the Industrial Tribunal, it would be

irresistibly presumed that he is no longer interested and has abandoned the

job. However, in the present case, there is no unequivocal evidence of

offer having been made before the Conciliation Officer or before the

Industrial Adjudicator. The counsel for the petitioner also similarly relies

upon Sonal Garments Vs. Trimbak Shankar Karve 2003 LLR 5 holding

that reinstatement awarded, is liable to be set aside when the workman

does not report for duty despite offer and that back wages will not be

awarded when workman is not responding to the offer of the management

to resume duties. In the present case, the finding of the Industrial

Adjudicator is of the efforts of the petitioner School to make the workmen

re-join being not sincere.

7. The counsel for the petitioner School has however urged that the

occasion for holding an inquiry in the present case did not arise because the

dispute was raised immediately after abandonment. I may in this regard

notice that reference in the present case is dated 20 th November, 1990 i.e.

after more than one year from the date of termination. The petitioner

School thus had sufficient time to hold the inquiry. Even if it were to be

believed that the workmen had approached the Labour Officer immediately

after termination / abandonment, nothing prevented the petitioner School

from taking a stand that they were holding an inquiry and thus the

approach to the Labour Commissioner was pre mature. The said plea

cannot be accepted.

8. The counsel for the petitioner has next contended that the petitioner

School was always willing to take back the workmen and rather it was the

workmen who had gone on a lightening strike and were holding the

petitioner School to ransom. It is urged that for this reason also, the

occasion for holding the inquiry did not arise. I am unable to accept the

said contention also. The very fact that the reference as to whether the

termination was illegal or the workmen had abandoned came to be made

after about one year of the incident res ipsa loquitur shows that there was

no such offer by the petitioner School at the contemporaneous time. Had

such an offer been there, the occasion for reference again would not have

arisen. Had the petitioner School taken back the workmen, the proceedings

would have come to an end even before the Industrial Adjudicator. The

Industrial Adjudicator also in the award has recorded, on the basis of the

material on record, that the workmen had been taking all steps to get their

job but the petitioner School was not inclined to take them back on duty

and that the petitioner School did not make any sincere efforts to take the

workmen on duty. It was further recorded that though the workmen were

taken on duty on 11th February, 1990 they were not assigned any work and

were again terminated and which resulted in failure of the conciliation

proceedings and reference of the dispute.

9. Moreover, it may be noticed at this stage that since notice of the

petition limited to the award so far as back wages is concerned was issued

and reinstatement was not even challenged, the award in so far as granting

the said relief is final, even though appears to have become infructuous

since none of the workmen in the last over 12 years since the award have

chosen to implement the same.

10. In so far as the challenge to the award for 50% of the back wages is

concerned, the argument of the counsel for the petitioner School is that

back wages could not have been awarded automatically without even an

inquiry or a finding of the workmen having remained unemployed during

the pendency of the proceedings before the Industrial Adjudicator. It is

rather contended that it was neither the plea of the workmen nor did they

prove so. It is further contended that though affidavits by way of evidence

were filed by all the nineteen workmen but only nine tendered themselves

for cross examination. It is stated that the said nine workmen who

tendered themselves for cross examination also did not depose that they

were unemployed during the pendency of the proceedings. It is yet further

contended that even before this Court, though the workmen had appeared

initially but have now not been appearing for long. The counsel only for

the respondents No.4 (as per amended memo of parties filed on 23rd

February, 2001) Ashwini Kumar, No.6 Ram Kumar (described in the

memo as Raj Kumar), No.13 Sukhdev Singh, No.17 Suresh Kumar, No.19

Shambhu and No.20 Jaya Singh (wrongly described as Jaga Singh) has

appeared. It is yet further contended that the fact that they have not applied

under Section 17B of the I.D. Act also is indicative of their having

remained employed throughout. Attention is invited to the affidavits by

way evidence filed by the 19 workmen which do not contain any statement

of being unemployed.

11. The counsel for the petitioner has also referred to:

(i) Novartis India Ltd. Vs. State of West Bengal 2009 LLR 113

holding that for entitlement to back wages, the burden of

proof that he remained unemployed would be on the

workman; besides other factors, conduct of the concerned

workman also plays a vital role.

(ii) U.P. State Brassware Corporation Ltd. Vs. Udai Narain

Pandey 2006 LLR 214 where also the Supreme Court held

that where the workman did not plead that after his purported

retrenchment, he was wholly unemployed, back wages were

limited to 25% only.

(iii) Allahabad Jal Sansthan Vs. Daya Shankar Rai (2005) 5

SCC 124 laying down that for the grant of full back wages, it

is necessary for the workman to plead and prove that he had

been sitting idle or had not obtained any other employment in

the interregnum and in the absence of any plea or evidence

restricting the relief of back wages to 50% only.

(iv) Thankur Singh Rawat Vs. Jagjit Industries Ltd. 2006 LLR

18 where a Division Bench of this Court has held that there is

a discretion in grant of back wages by the Court and that the

initial duty is of the workman to plead and prove that he will

be unemployed and it will then be for the management to

assert and prove if workman was at all employed and upon

default by the workmen in taking such plea they could be

denied back wages.

12. The counsel for the petitioner School has also contended that the

petitioner School having offered employment to the workmen and the

workmen having not opted to join, also disentitles the workmen to any

back wages. Attention in this regard is also invited to the documents on

the paper book where the workmen have admitted that they were asked by

the petitioner School to join back but subject to rendering an apology or

giving an undertaking of good conduct in future. Reliance is placed on:

(i) Bharat Petroleum Corporation Ltd. Vs. Workmen Employed

in the Refinery Division of Bharat Petroleum Corporation

Ltd. 2001 LLR 26 holding the condition imposed by the

employer in that case of the workmen giving such undertaking

as a condition to being allowed to work to be not illegal

unjustified or improper.

(ii) Glaxo Laboratories Employees Union Vs. Glaxo India Ltd.

1996 LLR 885 also holding that insistence upon such an

undertaking could not be described as change in condition of

service within the meaning of Section 9A of the Industrial

Disputes Act, 1947.

(iii) Ajay Enterprises Ltd. Vs. Secretary (Labour) Govt. of NCT

of Delhi 2007 LLR 86 where this Court also held that if

employees create hindrance, no fault can be found with the

employer in asking for undertaking and on refusal to give

undertaking, refusing to take back such employees.

13. It is not as if the Industrial Adjudicator has not considered the

aforesaid aspect. The award notices the same but returns a finding of the

efforts made by the petitioner School to take back the workmen to be not

sincere. As observed aforesaid, the very fact of reference having been

made, industrial dispute having remained pending for 10 years, this writ

petition having been preferred impugning the award of reinstatement, only

at the stage of admission, the challenge to reinstatement being given up and

the disputes which arose as to the workmen joining back even during the

pendency of the present petition, all are supportive of the factual finding

aforesaid of the Industrial Adjudicator. An employer willing to take back

the workman would not allow the industrial dispute at least before the

Industrial Adjudicator to go on and insist upon the Industrial Adjudicator

ensuring such joining back or at least returning a finding thereon. I am

therefore not inclined to accept the said plea.

14. However, merit is found in the plea aforesaid of the counsel for the

petitioner School of the respondent workmen having neither pleaded nor

proved that they were unemployed. I have perused the statement of claim

as well as the affidavits by way of evidence; no such plea is found therein.

As noticed above, all the 19 workmen did not even tender their affidavits

in examination or offered themselves for cross examination. Before this

Court also they go unrepresented. The Courts in the judgment aforesaid

have noticed that there can be no formula as to the back wages and a

pragmatic approach considering all the facts and circumstances is to be

taken.

15. Having considered the matter and for the reasons:

(i) that the petitioner is a School engaged in education of

children;

(ii) that 12 years from the date of the award have passed.

(iii) that most of the workmen have not opted to even appear

before this Court.

(iv) that no application under Section 17B having been filed.

(v) that there being no plea till date of the employment of the

workmen.

(vi) that Mediation attempted several times being unsuccessful.

it is deemed expedient that the award impugned in this petition be

modified by ordering that the petitioner School pays to the appearing

respondents as noticed hereinabove a sum of `40,000/- each within four

weeks of today failing which the same shall also incur interest at the rate of

10% per annum.

The petition is disposed of. Costs of litigation have already been

paid.

RAJIV SAHAI ENDLAW (JUDGE) MAY 12, 2011 'gsr'