M/S.Ceeko Transformers vs P.O.Labour Court No.1 & Ors
2011 Latest Caselaw 2722 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of decision: 20th May, 2011

+                           W.P.(C) 2163/2000

         M/S.CEEKO TRANSFORMERS                    ..... Petitioner
                      Through: Mr. Suman Malhotra & Ms. Savita
                               Malhotra, Advocate.

                                      versus

    P.O.LABOUR COURT NO.1 & ORS.            ..... Respondents
                 Through: Mr. K.C. Dubey, Advocate.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                      Yes

2.       To be referred to the reporter or not?               Yes

3.       Whether the judgment should be reported              Yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the award dated 5th August, 1999 of the

Industrial Adjudicator granting the relief to the respondent no.2 workman

of reinstatement with 75% of the back wages. The petition came up before

this Court first on 5th May, 2000 when the counsel for the petitioner

employer stated that the challenge was being made only to the extent of

grant of 75% of the back wages. Notice of the petition was issued and the

award to the extent of grant of 75% of the back wages was stayed and

remains stayed. The counsels have informed that though the respondent

no.2 workman, in implementation of the award was reinstated but

thereafter the petitioner employer effected closure and closure

compensation has been paid to the respondent no.2 workman and the

dispute in that regard does not survive. The counsels have argued only on

the validity of the award in so far as for back wages to the extent of 75%.

The termination being of 3rd June, 1988 and the award being of 5th August,

1999, the period of back wages is for a period of approximately 11 years. It

was enquired from the counsel for the petitioner employer as to what was

the amount due under the award; the counsel states that no computation has

been done. The counsel for the respondent no.2 workman states that back

wages, even if calculated at the rate of minimum wages, approximately

`3.75 lacs would be due under the award.

2. The Industrial Adjudicator though holding that on termination being

held illegal, workman becomes entitled to full back wages, reduced the

same by 25% for the reason of the respondent no.2 workman having not re-

joined the service despite offer by the petitioner employer. The counsel for

the petitioner employer has contended that in the face of the said finding of

fact of the respondent no.2 workman having not joined service inspite of

offer of the petitioner employer, the Industrial Adjudicator ought not to

have awarded any back wages whatsoever to the respondent no.2

workman.

3. In the facts of the present case, as well as similar facts in other cases

coming before this Court, a very disturbing feature which emerges is of a

dispute being referred and entertained and kept pending inspite of the

employers taking a stand on record of having not terminated the services

and/or of being willing to take back the workman. It appears that

references are being made, disputes entertained and kept pending without

regard to the pleadings. Once the employer, before the Conciliator or

before the Industrial Adjudicator takes a stand that no termination had been

effected or the termination even if effected, the employer is willing to take

back the workman or that it is the workman who had abandoned the

employment, the dispute at least in so far as of cessation of employment,

ought not to be referred, entertained or kept pending and immediate

directions/orders should be made to make the workman join back duty with

the employer and to make the employer so pleading take back the

workman on duty. The special process, of pre-dispute conciliation

and courts of Industrial Adjudicators were created/established under the

Industrial Disputes Act feeling the need for special treatment for workmen

and for disposing of the dispute(s) of the workmen with their employers

expeditiously and to avoid the workmen from venting their grievances in

the Civil Court, proceedings wherein were felt to be technical and long

drawn. It was expected that by creating such special procedure and forum,

the adjudication of the said disputes would be free from the technicalities

of the civil procedure which the Civil Court is required to follow and will

provide a forum where the disputes would be considered, dealt with and

adjudicated with a humane approach and expeditiously. However it

appears that somewhere along the way, the said purpose behind

establishment of the Industrial Adjudicators and Conciliators has been lost

and the Conciliators instead of bringing about conciliation and

notwithstanding the written response of the employer of having not

terminated the services or of being willing to take the workman, have been

reporting failure of conciliation and mindlessly references of disputes are

being made and the Industrial Adjudicator proceeding to answer the

reference as to illegality and validity of termination when the employers in

their pleadings have denied termination and expressed willingness to take

back the employee.

4. This Court is of the opinion that whenever before the Conciliator,

the employer takes a stand of having not terminated or of willingness to

take back the employee, it is the duty of the Conciliator to ensure that the

workman joins duty with the employer and if Conciliator finds either that

the workman is not willing to so join back the duty or that the employer

notwithstanding having taken such a stand is creating impediments to the

workman joining back duty, to make a report thereon. Else, if duty is so re-

joined, attempt should be made at resolving the dispute as to emoluments

for the interregnum and if such dispute remains unsettled, to refer the

dispute to the said limited extent only, for adjudication by Industrial

Adjudicator.

5. It has also been noticed in a large number of cases the employers

take the plea of the employee having abandoned the service. I am of the

view that if the workman has approached the Conciliator/Industrial

Adjudicator within a short span and expeditiously, the

Conciliator/Industrial Adjudicator should again ensure that the employee

joins back duty. It is the settled legal position in law that abandonment is a

misconduct and to be actionable it is incumbent upon the employer to

conduct an enquiry. The Conciliator/Industrial Adjudicator is expected to

advise the parties so and to attempt to resolve the controversy at the

threshold only rather than put it through the usual course of trial.

6. Similar is the position before the Industrial Adjudicator. If the

Industrial Adjudicator finds from the pleadings, a willingness of the

employer to take back the employee, there is no need for the Industrial

Adjudicator to proceed with the trial and the reference should be answered

immediately by observing that the employer having expressed willingness

to take back the employee, the dispute as to validity of termination does

not survive and proceed to determine only the dispute if any remaining as

to the emoluments for the period for which the workman has not worked.

7. However what is found by this Court is that the Industrial

Adjudicators are acting as a Civil Court only and functioning on the

premise that a reference having been made, they have to necessarily

proceed with the trial and answer the reference on the basis of the evidence

led before them. In the process, as aforesaid, the spirit in providing a

special mechanism for adjudication of such disputes has been lost; rather

the same leads to disputes as the present one where notwithstanding a

finding of the willingness of the petitioner employer to take back the

workman, the direction for reinstatement was made after 11 years of the

origin of the dispute. I cannot but express frustration at such a scenario. I

have during the hearing also enquired from the counsels, both of whom

have experience of conducting proceedings before the Industrial

Adjudicators also as to whether the record of the conciliation proceeding is

brought before the Industrial Adjudicator or not. They both reply in the

negative. In my opinion, the record of conciliation proceeding should, as a

matter of course, be attached to the file of the Industrial Adjudicator, to

enable the Industrial Adjudicator to know the stand of the workman and

the employer in the conciliation proceedings and to continue with the effort

at conciliation.

8. The petitioner employer in the present case has demonstrated that

even prior to the conciliation proceedings, upon the respondent no.2

workman making a complaint to the Labour Inspector, the petitioner

employer vide its letter of 13th/14th June, 1998 contended that it was in fact

the respondent no.2 workman who had stopped coming for duty from 3 rd

June, 1988 and that the petitioner employer had not terminated his services

and had not refused duty to him and requested the Labour Inspector to

advise the respondent no.2 workman to report for duty without any further

delay. The counsel for the petitioner employer has also drawn attention to

the evidence before the Industrial Adjudicator where the said letter was

proved.

9. The counsel for the petitioner employer has also invited attention to

another letter of July, 1998 to the Conciliation Officer where also a similar

stand was taken. The said letter is also shown to have been proved before

the Industrial Adjudicator. I am surprised that notwithstanding the said

stand in writing of the petitioner employer, the dispute was allowed to

brew. It is not understandable as to why in view of such a stand

conciliation was not effected and was instead reported to have resulted in

failure and which consequently resulted in the reference of a dispute being

made to the Industrial Adjudicator.

10. The petitioner employer even before the Industrial Adjudicator, in

reply to the statement of claim of the respondent no.2 workman, took the

same stand and reiterated that the respondent no.2 workman was free to

join the duty even then without any further loss of time. Even if the Labour

Inspector and the Conciliator had failed, at least the Industrial Adjudicator

in view of the said reply/written statement ought to have brought the

dispute insofar as to the validity of the termination to an end. There is no

explanation whatsoever as to why it was not so done.

11. The counsel for the respondent no.2 workman has of course

contended that it is common practice for the employers to on the one hand

take such a stand and on the other hand not allow the workman to join. It is

contended that the same is a ploy adopted by the employers to avoid

liability for back wages. Though such advocacy skills can be appreciated

but I am still at a loss as to why the Labour Inspectors/Conciliators/

Industrial Adjudicators should allow themselves to play in the hands of

such advocacy skills. The Labour Inspector/Industrial Adjudicator as

aforesaid is required to immediately take steps for making the employer

abide by his written word and if finds the employer to be not so willing, to

make appropriate record thereof. Else it can lead to only such situations ,as

this Court is faced with today, that while the workman has pleaded and

given evidence that he has remained unemployed, the employer has

pleaded that he has never terminated and it is the employee who has

abandoned the services and that the employer has always been willing to

take back the workman.

12. The counsel for the respondent no.2 workman has argued that this

Court in exercise of writ jurisdiction ought not to re-appreciate evidence.

However, the question involved is not of re-appreciation of evidence but of

the entitlement, if any, of the respondent no.2 workman to back wages in

the face of a finding of the respondent no.2 workman having not rejoined

service with the petitioner despite offer by the petitioner employer and of,

what should be the measure of that back wages in such circumstances.

13. The counsel for the respondent no.2 workman has also contended

that all the judgments to the effect that there is a discretion in the

Industrial Adjudicator qua back wages are of post the year 2008; prior

thereto the view taken was that upon termination of employment being

found to be illegal, full back wages necessarily follow; it is contended that

the award in the present case being of prior to the year 2000, the

judgments as then prevalent ought to be applied. Without going into the

question whether there has been any change in the view taken by the

Courts as argued, the contention cannot be accepted.

14. The judgments of the Courts are not to be interpreted like statutes

and are not prospective. What is laid down by the Courts is deemed to

have been the law since its enactment, unless the Courts choose to

specifically lay down that interpretation so taken will be prospective only.

That is not the position here.

15. The counsel for the respondent no.2 workman has next contended

that the effect of the offer made by the petitioner employer has to be

weighed. The argument is that had there been any genuine offer on the part

of the petitioner employer to take back the workman, the dispute would

have got resolved. It is contended that merely because the petitioner

employer has shown such a stand to have been taken in writing would not

entitle the petitioner employer to challenge the award on the said ground.

16. The counsel for the petitioner has also invited attention to the order

dated 11th October, 2000 in the present proceedings recording that the

respondent no.2 workman had joined duty with the petitioner employer

w.e.f. 19th September, 2000. Attention is also invited to the order dated

16th May, 2003 where the petitioner had agreed to pay to the respondent

no.2 workman back wages last drawn or minimum wages whichever is

higher from the date of the award till the date of the closure of the

petitioner on 1st February, 2001. He has also referred to -

i. M/s Purafil Engineers v. Shaikh Anwar Abdul Rahman 2000 LLR 268 where the Bombay High Court held that where the workman was offered reinstatement which he did not accept he will not be entitled to get any wages from the date of that offer.

ii. Sonal Garments v. Trimbak Shankar Karve 2003 LLR 5 where again the Bombay High Court held that back wages will not be awarded when the workman is not responding to the offer of the Management to resume duties.

17. The legal position in this regard is no longer res integra. The

Division Bench of this Court also in Triloki Nath Vs. Sh. Dharam Paul

Arora 2006 LLR 1043 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. Similarly in Sonal Garments (supra) it was

held 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. The Supreme Court also in Government of Tamil Nadu

v. K. Rajaram Appasamy (1997) 5 SCC 57 held that where the employee

chooses not to join the duty, the direction to pay 50% of the back wages

could not be sustained. The Supreme Court in State of Punjab v. Jagir

Singh (2004) 8 SCC 129 also held that where despite several opportunities

given, the workman did not join his duties, the Labour Court and the High

Court committed manifest error in granting back wages. Reference may

also be made to Shri Sat Narain Gupta v. CTC Limited

MANU/DE/7379/2007 where this Court refused to interfere in the award

of 40% of the back wages inspite of a finding of the workman having

himself declined to join duties for the reason of the same being in the

discretion of the Industrial Adjudicator and no ground for interfering with

the said discretion having been made out. I have also in Ramesh Chand v.

Arihant Polymers Pvt. Ltd. MANU/DE/0417/2010 refused to interfere

with an award declining back wages where it was proved that the workman

had declined to rejoin duty inspite of being called upon to do so.

18. The question which arises is whether there is any valid or proper

finding by the Industrial Adjudicator of the respondent workman inspite of

offer having not rejoined duty. The reasoning in this regard is dehors the

discussion of any evidence and the finding cursory. There is some merit in

the contention of the counsel for the respondent workman that neither the

parties nor the Industrial Adjudicator were fully conscious of the aforesaid

aspect. However, after such long lapse of time it is not deemed expedient

to remand the matter to the Industrial Adjudicator for returning a finding

on this aspect.

19. The award contains a finding of the last drawn wages of the

respondent workman to be Rs.650/- per month. The Industrial Adjudicator

has in the award not indicated whether the back wages awarded are to be

computed at the rate of the last drawn wages or after taking into

consideration the increments, if any, to which the workman would have

become entitled. Calculated at the rate of last drawn wages, the back

wages for 11 years approximately would be about Rs.80,000/- and 75%

thereof would be approximately Rs.60,000/-. Considering the said factor

as well as the long lapse of time since the award, I feel that interest of

justice would be served if the award is modified by directing the petitioner

to pay to the respondent no.2 workman a sum of Rs.40,000/- towards back

wages.

20. The petition is accordingly allowed to the aforesaid extent. The

award of the Industrial adjudicator impugned in this petition, insofar as qua

back wages is modified by awarding lump sum back wages of Rs.40,000/-

only to the respondent no.2 workman payable within eight weeks of today

failing which the same shall attract interest at 10% per annum. The petition

is disposed of. Costs of litigation have already been paid.

RAJIV SAHAI ENDLAW (JUDGE) MAY 20, 2011 Pp/M

(corrected and released on 1st June, 2011)