M/S. Fateh Chand vs Presiding Officer, Labour Court & ...
2012 Latest Caselaw 280 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                           Judgment reserved on:         13.09.2011
                           Judgment delivered on:        16.01.2012

+           W.P.(C) No. 758/2007

M/s. Fateh Chand                                     ......Petitioner

              Through: Mr. Abhinav Jain, Adv.

                           Vs.

Presiding Officer, Labour Court & Anr.        ......Respondents

         Through: Mr. R. K. Maan, Adv.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

KAILASH GAMBHIR, J.

1. By this petition filed under Article 226 of the Constitution of

India, the petitioner seeks to challenge the award dated

30.8.2006, whereby the learned Labour Court has granted

reinstatement of the respondent no.2 workman with 40% of his

salary as back wages.

2. Briefly stated, the facts of the case relevant for deciding the

present petition are that the respondent no. 2 workman was

working with the petitioner management as a general worker with

last drawn wages as Rs.2100/- per month. As per the workman, his

services were illegally terminated by the petitioner w.e.f.

25.12.2001 without any order in writing. The workman served a

legal notice dated 28.12.2001 upon the petitioner which was not

replied to and an industrial dispute was raised whereby vide an

award dated 30.8.2006, the respondent workman was granted

reinstatement alongwith 40% wages. Feeling aggrieved with the

same, the petitioner has preferred the present petition.

3. Assailing the said order, the learned counsel for the petitioner

has raised the grievance that the learned Labour Court had

ignored the earlier settlement dated 23.4.2005 entered into

between the parties whereby the respondent had received an

amount of Rs.12,000/- towards full and final settlement of his

alleged claim. The other grievance raised by the petitioner was

that the respondent no.2 did not remain totally unemployed as

after his alleged removal from the service on 25.12.2001, he was

engaged in agricultural activities wherefrom he was earning

substantial amount of income. It was also contended that the

income from the agricultural source was within the knowledge of

the respondent no.2 and it was obligatory upon him to have

disclosed his income and on his failure to do so, the learned Labour

Court ought to have drawn an adverse inference against him. The

counsel for the respondent on the other hand supported the award

passed by the learned Labour Court and submitted that no fault can

be found with the reasoning given by the Court.

4. I have heard learned counsel for the parties and given my

thoughtful consideration to the arguments advanced by them.

5. A reference at the instance of the respondent workman was

made by the Govt. of NCT of Delhi to adjudicate the dispute

between the petitioner management and the respondent in the

following terms.:

"Whether Shri Daya Shankar S/o Shri Mithai Lal abandoned his services by remaining absent or his services have been terminated illegally and/or unjustifiably by the management, if so, to what relief is he entitled and what directions are necessary in this respect."

6. As per the statement of claim filed by the respondent

no.2/workman, he claimed his employment with the petitioner

management as general worker for about fifteen years from the

date of filing of the claim and his grievance was that he was

illegally terminated by the petitioner management without

adhering to the mandate of Section 25-F of the Industrial Disputes

Act. The stand taken by the petitioner management before the

Labour Court was that the respondent no.2/workman had left the

job on 25.12.2001 voluntarily and thereafter he did not return back

on his duty without any rhyme or reason. Both the parties led

evidence in terms of the aforesaid reference and the respondent

no.2 workman examined himself as WW-1, while the petitioner

management had examined one Mr. Brij Kishan as MW-1. Based

on the evidence led by the parties, the learned Labour Court found

the termination of the respondent workman as illegal, unjust and in

violation of Section 25-F of the Industrial Disputes Act. The

learned Labour Court disbelieved the defence taken by the

petitioner management that the respondent workman had himself

abandoned his job by not returning back on his duty. The learned

Labour Court found that the respondent no.2 workman had sent a

demand notice through regd. A.D. covers through which he made a

request for taking him back on duty and for the payment of his

outstanding dues but no reply was sent by the petitioner

management. The said demand notice was proved on record by the

respondent no.2 in his evidence as Ex. WW-1/1 and the receipt of

the said demand notice was also admitted by the petitioner

management before the conciliation officer in their reply. The

learned Labour Court further found that the respondent no. 2 was

not cross-examined by the petitioner management to give any

contrary suggestion to him that he never reported back to the

petitioner management for joining his duty. On the other hand,

MW-1 Mr. Brij Kishan in his cross-examination duly admitted the

fact that the petitioner management did not write any letter to

the respondent no.2 workman after his alleged absenteeism from

25.12.2001, calling upon him to resume his duties. The said

witness had also admitted that no charge sheet was issued to the

respondent workman because of his absenteeism from the duty.

The Labour Court after placing reliance on the case of MCD Vs.

Brij Mohan, LLR 1994, page 332 came to the conclusion that it

cannot be assumed that the workman had abandoned the

employment as it was the duty of the petitioner management to

show their readiness to allow the workman to resume his duty.

7. Nothing illegal and perverse has been pointed out by the

petitioner management to assail the said findings arrived at by the

learned Labour Court. It is a settled legal position that the labour

courts are the final fact finding courts and unless the findings

given by the labour court are illegal or perverse on the very face

of it, this court in exercise of its powers under Article 227 of the

Constitution of India will not interfere to reverse such findings. It is

also no more res integra that even in a case of unauthorized

absenteeism or to prove abandonment of service on the part of the

workman the management must place on record necessary material

to prove that enough efforts were made by it to call upon the

workman to resume back his duty and the workman has shown his

clear reluctance for the same. Here it would be relevant to refer to

the judgment of the Apex Court in the case of Scooters India Ltd.

vs. Mohammad Yaqub (2001)1SCC61 where the workman when

reported for duty was not allowed to join and according to the

standing orders automatically terminated, the Court held that it

was not a case of absenteeism but retrenchment in the following

para:

"12. The question which then arises is whether the principles of natural justice were followed in this case. As has been set out hereinabove Mr Swarup had submitted that the workman had been given an opportunity to join the duty and that he did not join duty even though repeatedly called upon to do so. It is contended that the principles of natural justice have been complied with in this case. However, the material on record indicates otherwise. The Labour Court in its award sets out and accepts the respondent's case that he had not been allowed to join duty. The respondent has given evidence that even though he personally met the Chief Personnel Officer he was still not allowed to enter the premises. The evidence is that in spite of slip Ext. W-2, he was prevented from joining duty when he attempted to join duty. The slip Ext. W- 2 had been signed by the Security Inspector of the appellant. This showed that the respondent had reported for work. As against this evidence the appellant has not led any evidence to show that the workman had not reported for duty. Even though the slip Ext. W-2 had been proved by the workman, the Security Inspector, one Mr Shukla, was not examined by the appellant. Further the evidence of the Senior Timekeeper of the appellant established that the workman had worked for more than 240 days within a period of 12 calendar months immediately preceding the date of termination of service. This was proved by a joint inspection report, which was marked as Ext. 45-A. It was on the basis of this material and this evidence that the Labour Court came to the conclusion that there was retrenchment without following the provisions of law. As the workman was not allowed to join duty, Standing Order No. 9.3.12 could not have been used for terminating his services.

13. In this view of the matter, in our view, the decisions of the Labour Court as well as High Court are correct and require no interference. Accordingly, the appeal stands dismissed. There will, however, be no order as to costs."

Undoubtedly, unauthorized absenteeism is a ground for termination

and has been held to be misconduct in a catena of judgments. But

when is it an unauthorized absenteeism is to be determined from

the facts and circumstances of each case. Here it would be relevant

to refer to the judgment of the Division Bench this court in the case

of Ram Niwas vs. Union of India 2010(4)AD(Delhi)281 where

in the facts of the case the petitioner was compulsorily retired on

the ground of unauthorized absenteeism, but the court held such

action illegal as the petitioner was prevented from coming to work

as he was not paid his wages and it cannot be said to be

unauthorized absenteeism. It would be relevant to reproduce the

said para here as under:

"It is evident from the factual narration noted above, that the petitioner was compelled to go on serving the respondents despite not receiving wages for the work which he had already done for the previous months. It was only when he reached such a stage of penury and object deprivation, that he was unable to bear the expenses of commutation to his place of work, that the petitioner unable to report for duty. In these facts, there is substance in the submission of the petitioner that he was not absent unauthorisedly from his place of work, but was prevented by the conduct of the respondent in accessing his place of work.

The action of the respondents in compelling him to perform duties and refusing him to pay for the same, has to be held to be unconstitutional. The absence of the petitioner from service from 16th January, 2004 onwards in the circumstance noticed above was clearly not actionable. The impugned order is therefore unsustainable in law."

Similarly, in the facts of the case at hand, the respondent was also

prevented from reporting on duty and thus it cannot be said to be a

case of absenteeism as contended by the counsel for the petitioner.

8. It is also a settled legal position that abandonment of

service is different from absenteeism. Abandonment of service is

the voluntarily relinquishment of ones services with the intention

not to resume the same. It is a matter of inference to be drawn from

the facts and circumstances of each case and mere absenteeism for

a continuous period does not mean that the employee has

abandoned his service. The management has to bring on record

sufficient material to show that the employee has abandoned the

service and abandonment cannot be attributed to the employee

without there being sufficient evidence. On the failure to report for

duty, the management has to call upon the employee and if he

refuses to report, then an enquiry is required to be ordered

against him and accordingly action taken. In the absence of

anything placed on record by the petitioner management, no

presumption against the respondent can be drawn. No enquiry in

this case was set up by the petitioner management and even no

letter was sent by the management to the respondent workman

calling upon him to resume his duty. The case in hand is a clear

case of violation of Section 25-F of the Industrial Disputes Act as

the petitioner management failed to adhere to the procedure

prescribed under Section 25-F of the I.D. Act before dispensing

with the service of the respondent workman. The plea taken by the

petitioner management that the respondent workman after having

absented himself from the duty was working as an agriculturist is

a plea worth outright rejection. If the petitioner management had

not permitted the respondent workman to join back on his duties

and during such period even if he had worked as an agriculturist to

sustain and survive himself, the same cannot be taken against to

deprive the respondent workman to claim back wages. The

learned Labour Court has already been considerate enough to

grant 40% of the back wages instead of granting full back wages.

9. So far the plea taken by the petitioner management that the

dispute between the parties was settled on 23.4.2005, it would be

suffice to mention that the said settlement had nothing to do with

the above claim raised by the respondent no.2 under Section 10 of

the I.D. Act as the said settlement relates to the LCA No.47/2002

whereby only the differential amount of wages was paid by the

management to the respondent no.2 workman.

10. In the light of the aforesaid discussion, this court does not

find any merit in the present petition, and the same is accordingly

dismissed.

January 16, 2012                      KAILASH GAMBHIR, J
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