Delhi High Court
Management Of M/S Pacco ... vs Govt. Of Nct Of Delhi & Ors. on 19 September, 2011
Author: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
W. P. (C) 6566/2003
Reserved on: September 2, 2011
Decision on: September 19, 2011
MANAGEMENT OF M/S PACCO INDUSTRIAL
CORPORATION ..... Petitioner
Through: Mr. Rakesh Kakar, Advocate.
versus
GOVT. OF NCT OF DELHI & ORS. ..... Respondents
Through: None.
CORAM: JUSTICE S. MURALIDHAR
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 in Digest? No
JUDGMENT
19.09.2011
1. The Petitioner management has filed this writ petition challenging an Award dated 1st
August 2002 passed by the Labour Court in ID No. 530 of 1997. In the Award, the
Labour Court held that the management had illegally terminated the services of
Respondent No. 2 workman and directed his reinstatement with back wages.
2. While directing notice to issue in the writ petition on 15th October 2003, this Court
had declined to stay the reinstatement of the workman but had stayed the impugned
Award in so far as it granted back wages to the workman.
3. Respondent No. 2 workman joined the Petitioner on 1st August 1989. According to
the Petitioner, the workman failed to report for duty from 10th November 1995 to 25th
October 1996. It is further stated that on 26th October 1996, the workman came to the
establishment and informed the security officer that he could not attend his duties owing
to a lung disease. On that date, the management asked the workman to report for duty
along with his fitness certificate from the Employees' State Insurance Corporation
('ESIC'). The workman, however, did not submit any medical certificate. According to
the management, on 14th November 1996, the workman informed the security guard that
he was still unfit and not in a position to report for duty. In the meanwhile, on 31st
October 1996, the workman sent a notice which was replied to by the management on 5th
November 1996 asking the workman to report for duty. It is stated, however, that the
workman still did not report for duty. On 13th December 1996, he was again asked to
report for duty and he again failed to do so.
4. The workman raised an industrial dispute which was referred to the Labour Court in
ID No. 530 of 1997. The case of the management before the Labour Court was that the
workman had abandoned his service although it was willing to take him back on duty.
5. The workman examined himself as WW1. The management examined Mr. Balraj
Verma, the Accounts Manager, as MW1 and one Mr. Muneshwar, the Security
Supervisor, as MW2. Mr. Muneshwar deposed that on 14th November 1996, the
workman came to the establishment and stated that he did not want to work with the
establishment since his physical condition was not good and also that he could not do
heavy work. He is reported to have told MW2 that if the management did not
compensate him then he would file a case in the Labour Court. Thereafter he never
reported for duty.
6. In the impugned Award dated 1st August 2002, the Labour Court disbelieved the
evidence of MW2 Mr. Muneshwar and held that if indeed the workman has abandoned
his duties then the management ought to have held an inquiry. Accordingly, it was held
that the services of the workman had been illegally terminated by the management and
that the workman was entitled to reinstatement with back wages.
7. Mr. Rakesh Kakar, learned counsel appearing for the Petitioner questioned the very
making of the reference since the service of the workman had never been terminated by
the management. He also stated that it was a case of abandonment of service by the
workman. MW1 had stated in his affidavit filed before the Labour Court that on 20th
December 1996 the workman had been asked to report for duty through the Area Labour
Inspector Mr. K. D. Gupta, before whom he promised to report for duty but failed to do
so. It is pointed out that MW1 was not cross-examined by the workman on this aspect. It
is further submitted by Mr. Kakar that the Award of full back-wages was in any event
not justified. Lastly, it is submitted, without prejudice to the earlier submissions, that
even if the termination of the services was held to be illegal, clearly the workman's
health condition did not permit him to undertake heavy work and in such circumstances,
compensation in lieu of reinstatement should have been ordered.
8. The record of the Labour Court has been perused. In its reply dated 5th November
1996 to the workman's letter dated 31st October 1996, the management asked the
workman to report for duty. It obviously was satisfied about the explanation given by
him for his absence from duty on medical grounds. The only issue therefore, was
whether in fact the workman reported for duty.
9. The Labour Court has, on an appreciation of the evidence, come to the conclusion that
the workman did report for duty. It concluded that the evidence of MW2 was
untrustworthy. It was not proved that the workman deliberately refused to report for
duty. Further, if indeed the workman had abandoned his duties, the management should
have held an inquiry.
10. This Court is unable to find any perversity or illegality in the findings of the Labour
Court on facts. Consequently, the direction in the impugned Award to reinstate the
workman does not call for interference. In any event, when this Court directed notice to
issue on 15th October 2003 reinstatement of the workman was not stayed.
11. As regards the back wages, the facts and circumstances of the case did not warrant
the direction to pay full back wages. Accordingly, the back wages to be paid by the
Petitioner to the workman is reduced to 25% for the period from the date of termination
to the date of reinstatement pursuant to the impugned Award.
12. With the above limited modification to the impugned Award, the writ petition is
disposed of.
S. MURALIDHAR, J.
SEPTEMBER 19, 2011
ha
