Delhi High Court
Daulat Singh Gosain vs The Mangt. Of S.M.S. Associates P. ... on 30 November, 2011
Author: P.K.Bhasin
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% W.P.(C) 6945/2007
+ Date of Decision: 30th November, 2011
# DAULAT SINGH GOSAIN ....Petitioner
! Through: Mr. Thomas Ommen, Advocate
Versus
$ THE MANGT. OF S.M.S.
ASSOCIATES P. LTD. ....Respondent
Through: Mr. A.K. Hajelay, Advocate
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
JUDGMENT
P.K.BHASIN, J: (ORAL)
The petitioner-workman (who shall hereinafter be referred to as
'the workman') is aggrieved by the award dated 14th March, 2007 passed
by the Labour Court whereby the dispute raised by him that his services
had been terminated illegally by his employer, the respondent herein
(hereinafter referred to as 'the management') has been decided against
him and the learned Presiding Officer of the Labour Court has come to
the conclusion that the workman had failed to establish that his services
were terminated illegally and in fact he himself had abandoned his job in
order to avoid return of some loan amount which he had taken from the
management.
2. After having heard learned counsel for the parties and going
through the record, which includes the statement of claim filed by the
workman before the Labour Court as well as management's written
statement, I am of the view that the impugned award cannot be sustained.
A perusal of the amended written statement filed by the management
clearly shows that because of the unauthorized absence of the workman
from duty for two weeks the management had sent a letter requiring him
to show cause as to why necessary action be not taken against him,
including holding of an enquiry against him, and then he was charge-
sheeted also for his absence but before any disciplinary proceedings
could be initiated the workman approached the labour authorities and got
a reference made to the Labour Court for adjudication of the industrial
dispute raised by him as to whether he himself had abandoned his job, as
was the management's stand or the management had terminated his
services illegally. The Labour Court decided the reference against the
workman. Since the management itself had decided to charge-sheet the
workman vide charge-sheet dated 25th May, 1994 its plea to the effect
that the workman had abandoned his job with effect from 11 th May, 1994
on the face of it is unsustainable and the learned Labour Court has totally
ignored these averments made in the amended written statement of the
management and without any cogent reason come to the conclusion that
workman had abandoned his job.
3. In the amended written statement the respondent-management had
also taken a plea that in case the Court would come to the conclusion that
action of the management suffered from any technical defect or it was
not in conformity with the principles of natural justice then it would lead
evidence before the Court itself to prove the charge levelled against the
workman vide its charge-sheet dated 25th May, 1994. Even this averment
in the written statement of the management confirms that even as per the
management this is a case of the termination of services of the workman
for misconduct and not of abandonment of job by the workman himself.
4. It was contended by the learned counsel for the management that
though the workman was charge-sheeted but finally no proceedings were
initiated against him as the management had presumed abandonment of
job by him because of his not reporting for duty. That, in my view,
would make no difference at all in view of the fact that after having come
to the conclusion that it was a case of misconduct on the part of the
workman the management could not have converted its case into that of
abandonment of job by the workman by not proceeding further with the
contemplated disciplinary proceedings against him. The fact that the
workman was charge-sheeted on 25th May, 1994 shows that till that time
even the management was treating the workman as its employee though
he was not reporting for duty. Learned counsel for the workman had also
stated that there are no rules and regulations framed by the management
providing that an employee remaining continuously absent from duty for
a particular period could be deemed to have abandoned his job. So, for
this reason also the management's defence that the workman had himself
abandoned his job could not be accepted. In taking this view I am
fortified by the decision of the Hon'ble Supreme Court in "G.T.Lad &
Others Vs. Chemical and Fibres of India Ltd.", (1979) 1 SCC 590.
5. For the foregoing reasons, this writ petition is allowed and the
impugned award of the Labour Court is set aside and it is held that the
workman had not abandoned his job with the management but in fact his
services were terminated illegally as was his case.
6. Regarding the relief to be given to the workman, during the course
of hearing counsel for the workman had stated that he would be satisfied
in case reasonable payment is made to him by the management in lieu of
the relief of reinstatement in the event of this Court coming to the
conclusion that the impugned award was liable to be set aside.
7. So, considering all the facts and circumstances the workman is
awarded compensation in lieu of the relief of reinstatement to the extent
of ` 3 lacs considering the fact that undisputedly he was drawing a salary
of ` 2800 per month which in normal course would have increased also
as also the fact that sixteen years have gone by from the date of
termination of his job. This much compensation is acceptable also to the
workman, as stated by his counsel.
8. The management is also burdened with costs of ` 10,000.
P.K. BHASIN, J
NOVEMBER 30, 2011/pg
