Om Prakash vs Camy Enterprises
2012 Latest Caselaw 3479 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI


%                     W.P. (C) 16624/2006


+                         Date of Decision: 24th May, 2012

#      OM PRAKASH                       ....Petitioner
!              Through: Mr. Archit Vasudevki &
                        Ms. Leena Tuteja, Advocates

                           Versus

$      CAMY ENTERPRISES               ...Respondent
                 Through: Mr. A.K. Mishra, Advocate

       CORAM:
*      HON'BLE MR. JUSTICE P.K.BHASIN

                       JUDGMENT

P.K.BHASIN, J:

By way of this writ petition the petitioner-workman, who was employed with the respondent Company, had challenged the award dated 29-08-06 in ID Case No. 1344/1997 whereby the Labour Court had held that the respondent-management had not terminated the service of the petitioner-workman but he had himself abandoned his job and, therefore, he was not entitled to any relief. The

petitioner-workman felt that his services were terminated illegally and he was entitled to be re-instated in service with full back wages and so he knocked at the doors of this Court for getting that relief.

2. The petitioner-workman, as per his case, was employed as an Injection Moulding Machine Operator with the respondent-management since 15.2.85 till the illegal termination of his services on 18.2.97. Thereafter he had approached the labour authorities for getting re-instated in service but since he could not get that relief there the dispute between him and the respondent-management was referred for adjudication to the Labour Court vide Reference Order dated 26.8.1997 with the following term of reference:-

"Whether the services of Sh. Om Prakash 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?"

3. The petitioner-workman filed his statement of claim challenging the termination of his services to be illegal and he claimed that he had not abandoned his job.

4. The management filed its written statement denying the allegations of illegal termination of the services of the petitioner-workman and pleaded that it had never terminated

his services but he himself had stopped coming for duty and so had abandoned his job. The management had also pleaded that it was in any case ready to take back the petitioner in duty and also to pay him all his dues, if he so desired.

5. After examining the evidence adduced from both the sides the Labour Court vide its impugned Award dated 29-8- 06 came to the conclusion that there was no termination of the service of the petitioner-workman by the respondent- management and in fact he himself had abandoned the job and so he was not entitled to get any relief.

6. The petitioner - workman felt aggrieved by the Award of the Labour Court and filed the present writ petition.

7. The learned counsel for the petitioner-workman contended that the award of the Labour Court is not in accordance with law as there was no evidence from which it could be concluded that the petitioner had abandoned the job.

8. On the other hand, the learned counsel for the management argued that the impugned award does not suffer from any illegality or infirmity as on the basis of oral and documentary evidence before the Labour Court it was clearly established that the workman had abandoned his job himself.

9. After having gone through the pleadings of the parties and evidence adduced before the Labour Court, impugned Award and considering the submissions made on behalf of both the parties I have come to the conclusion that the impugned award needs to be set aside as the Labour Court's conclusion that the petitioner-workman had himself abandoned the job is not substantiated from the management's evidence. The respondent-management did not mention in its written statement since when the petitioner- workman had been absenting and till when. The documents produced before the Labour Court by the management contradict themselves as the attendance register shows that the petitioner-workman had started absenting himself from 12th January, 1997 while the letter of the respondent- management dated 22nd January, 1997 sent to the petitioner- workman shows that he was informed that he was absenting from 1st January, 1997. Same suggestion was given to the petitioner in his cross-examination. Therefore, considering the fact that in its written statement the respondent- management had not pleaded as to from which date the petitioner was absent and when his name was struck off, which as per the attendance sheets filed before the Labour Court was done w.e.f. 1st March, 1997, it appears that when

the written statement was filed by the management it was not certain about its own case and records were prepared subsequently for being produced in evidence.

10. In these circumstances, the Labour Court had no reason to disbelieve the statement on oath of the petitioner-workman that he was refused duty w.e.f. 18th February, 1997. He had also examined one co-worker Om Parkash as WW-2 who had also deposed that the service of the petitioner-workman had been terminated in the year 1997 since he was demanding overtime wages. To him also it was not suggested that petitioner was not reporting for duty from 1st January, 1997 or 12th January, 1997.

11. Further, the petitioner-workman had been employed with the respondent Company for 12 years and I see no reason as to why he would have abandoned his job. He had raised the dispute in 1997 itself. That negatives the case of abandonment of job by the petitioner. And even otherwise, in none of the letters allegedly sent to the petitioner by the respondent it was mentioned that in case of his failure to report for duty it would be presumed that he was no more interested to work with it. Instead, threats of taking disciplinary action were given but no such proceedings were

initiated. In fact, even if that had been so mentioned that would not have made any difference and removing the name of the petitioner from the rolls would have amounted to termination of his services by the management itself give no rules applicable to its employers showing that any employee absenting from duty could be deemed to have abandoned his job upon not reporting for duty after absence for a particular period. Thus, it has to be held that services of the petitioner- workman were in fact terminated as threatened by the management in its letters addressed to the petitioner- workman and its plea of abandonment of job by the petitioner himself cannot be accepted in the absence of any circumstances suggesting that intention of the petitioner.

12. Therefore, this writ petition is allowed and the Labour Court's award is set aside. The petitioner-workman is ordered to be re-instated in service but considering all the facts and circumstances only with 50% of back wages.

P.K. BHASIN, J MAY 24, 2012