Harsha Industries vs Mahesh Chand Sharma
2011 Latest Caselaw 4427 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 12th September, 2011


+                              W.P.(C) 4059/2008


         HARSHA INDUSTRIES                                       ..... Petitioner
                     Through:               Ms. Rashmi B. Singh, Adv.

                                        Versus

    MAHESH CHAND SHARMA                      ..... Respondent
                 Through: Ms. Deepali Gupta, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may           Not necessary
         be allowed to see the judgment?

2.       To be referred to the reporter or not?                Not necessary

3.       Whether the judgment should be reported               Not necessary
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the award dated 19th May, 2007 of the

Industrial Adjudicator on the following reference:-

"Whether the services of Shri Mahesh Chand Sharma have been terminated illegally and/or unjustifiably by the management, and if so, to what relief is he entitled

and what directions are necessary in this respect?"

and holding the respondent workman: i) to have been in employment of the

petitioner w.e.f. 13th April, 1996; ii) to be last drawing a salary of `2,900/-

per month; and, iii) having not been employed anywhere since his

termination on 29th August, 1999, and directing the petitioner employer to

reinstate the respondent workman with 75% back wages and continuity of

service with all legal benefits.

2. Notice of the petition was issued and subject to the petitioner

employer depositing `50,000/- in this Court besides litigation expenses,

the operation of the award stayed. Litigation expenses have been released

to the respondent workman.

3. CM No.2083/2009 was filed by the respondent workman under

Section 17B of the ID Act. The petitioner employer in reply thereto has

stated that the respondent workman is working in the Court only along

with some Advocate in as much as whenever the proprietor of the

petitioner employer has visited the Court he has found the respondent

workman in the Court. The respondent workman denies being employed

anywhere. On 17th May, 2010, it was directed that the respondent workman

be reinstated without prejudice to the respective rights and contentions.

CM No.12762/2010 has been filed by the respondent workman stating that

he was not allowed to join work. CM No.12707/2010 has been filed by the

petitioner employer stating that the respondent workman did not join duty.

As such, Section 17B application is also pending consideration.

4. The possibilities of amicable settlement have been explored. It is felt

that in view of the acrimonious relationship, reinstatement is not a viable

alternative. Even if the writ petition were to be dismissed, there is likely to

be further dispute/litigation. The counsel for the respondent workman, who

appears through legal aid however states that notwithstanding efforts she

has not been able to make the respondent workman understand the

nuances.

5. In the aforesaid circumstances, particularly when in furtherance to

Section 17B, the parties had agreed to reinstatement without prejudice, it is

not felt necessary to now hear Section 17B application and the parties have

been heard on merits of the petition.

6. It was the case of the respondent workman before the Industrial

Adjudicator that he was employed as a skilled workman for the work as a

Cable Drawer in the factory of the petitioner employer; that he was not

paid minimum wages; that he remained sick from 13 th May, 1999 to 28th

August, 1999; that on 29th August, 1999 he reported for duty but was not

taken back on duty. It was the case of the petitioner employer that it was

the respondent workman himself who had of his own volition failed to

report for duty w.e.f. 13th May, 1999 and had accepted full and final

settlement of account by receiving `6,000/- and as such there was no

dispute.

7. The Industrial Adjudicator inter alia found that the petitioner

employer had failed to produce the relevant attendance register; that the

petitioner employer had failed to establish that it was the respondent

workman who had failed to turn up for duty and had not even issued a

single letter calling upon the respondent workman to report for duty. It was

further held that receipt by the respondent workman, who was without

work and salary, of `6,000/- would not tantamount to the respondent

workman giving up his right. Accordingly, it was held that it was the

petitioner employer who had illegally terminated the services of the

respondent workman.

8. The findings aforesaid of the Industrial Adjudicator are findings of

fact not ordinarily interferable in exercise of powers of judicial review

unless shown to be perverse i.e. based on no evidence at all or such which

no reasonable person on the basis of evidence on record could have

reached. No such case of perversity is made out. The counsel for the

petitioner employer has however invited attention to the cross examination

of the respondent workman where the respondent workman admitted that

he performed duty on 29th August, 1999. It is argued that the said

admission is contrary to the case in the claim of having not been allowed to

join duty w.e.f. 29th August, 1999. Attention is further invited to the

admission in the cross examination of having received a letter to join duty.

It is contended that the Industrial Adjudicator has wrongly held that no

such letter was issued. I may however notice that the respondent workman

has in continuation to the alleged admission further stated that after

receiving the letter he visited the petitioner employer but was not allowed

to join duty. It has been enquired from the counsel for the petitioner

whether the petitioner employer has placed the said letter on record. The

counsel for the petitioner employer states that since the respondent

workman had admitted receipt of the letter, need was not felt to prove the

same.

9. I am unable to accept the aforesaid contentions. Reference to the

letter is quite vague. It could very well be the letter during the time when

the petitioner was ill and not working for the petitioner employer. If the

petitioner employer wanted to rely upon any letter written after 29th

August, 1999, should have proved the same before the Industrial

Adjudicator.

10. The counsel for the petitioner employer has further contended that

the attendance register for the month of August, 1999 was produced and

need was not felt to produce the attendance register for the subsequent

dates during which the respondent workman also had stated that he was not

working. It is contended that no purpose would have been served. The said

contention also has no merit. The attendance register would have shown as

to how the absence of the workman was being treated/considered.

11. If it was the case of the petitioner employer that the respondent

workman had of his own stopped reporting for work, the petitioner

employer as per the settled position in Anil Chuttani v. ONGC 2010 (117)

DRJ 433, was required to conduct an inquiry; no such inquiry is stated to

have been conducted. Without conducting such an inquiry, the petitioner

employer could not attribute misconduct of abandonment to the respondent

workman. Similarly a small discrepancy i.e. whether on 29 th August, 1999

the workman was refused work or performed duty cannot be said to make

the award perverse. The view taken by the Industrial Adjudicator is a

plausible view.

12. Similarly no error is found in the view taken by the Industrial

Adjudicator with respect to the receipt of `6,000/-. The said receipt is

purportedly dated 31st March, 2000. The receipt does not bear any date

under signatures of the workman and such payment after long delay cannot

be said to be full and final settlement of all claims of the respondent

workman.

13. I am however in agreement to the counsel for the petitioner

employer that especially in the facts as has transpired before this Court, the

present is not a case where reinstatement is a viable alternative. In view of

the parties having been unable to even without prejudice their rights and

contentions and during the pendency of the present petition work together,

even if the writ petition is to be dismissed, it is felt that the litigation would

continue. It is therefore felt that the compensation in lieu of reinstatement

is the only plausible solution.

14. On enquiry, it is informed that a sum of approximately `1,20,000/-

was due under the award at the time of filing the petition. Considering the

said aspect and the payments which would have been received under

Section 17B of the ID Act and further considering the time of about three

years only for which the respondent workman had worked for the

petitioner employer and yet further considering that the respondent

workman is informed to be forty six years of age, a compensation of ` 3

lacs payable within two weeks of today is deemed to be appropriate, in lieu

of back wages, reinstatement, 17B wages etc.

15. The petition is therefore disposed of dismissing the challenge to the

award as far as the findings in the award are concerned but modifying the

relief granted from that of reinstatement with 75% back wages to that of

payment of lump sum compensation of `3 lacs within two weeks of today.

For any delay in payment of compensation, the respondent workman

besides other remedies shall be entitled to interest thereon at 12% per

annum till the date of payment. Litigation costs have already been paid.

Subject to the payment of `3 lacs as aforesaid, the amount deposited by the

petitioner employer in this Court together with interest accrued thereon be

refunded to the petitioner employer.

RAJIV SAHAI ENDLAW (JUDGE) September 12 , 2011 pp