P.P. Associates vs Mohan Lal & Ors.
2012 Latest Caselaw 6191 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      WP(C) No.6098/2008 & CM Nos. 11661/2008, 934/2009 and
       3256/2011

%                                            Reserved on: 24.08.2012
                                             Decided on: 15th October, 2012
P.P. Associates                                                 ..... Petitioner
                             Through:     Mr. Vinay Sabharwal, Advocate.
                    versus
Mohan Lal & Ors.                                           ..... Respondents

                             Through:     Ms. Isha Khanna, Ms. Nidhi, Advs.
                                         for R-1 & 2.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. By this petition, the Petitioner challenges the award dated 7th April,

2008 passed by the learned Trial Court in ID No.201/2001 whereby the

learned Trial Court directed compensation to the tune of Rs.2,50,000/- and

2,45,000/- to Respondent Nos. 1 and 2 respectively with interest @ 18% pa

till the date of releazation besides a joint litigation cost of Rs.10,000/-.

2. Learned counsel for the Petitioner contends that the learned Trial

Court‟s finding that the plea of the Petitioner was abandonment of service by

Respondent Nos. 1 and 2 is perverse. The Petitioner never took the plea of

abandonment. The case of the Petitioner was that Respondent Nos. 1 and 2

left their duties without any permission or intimation on 23 rd September,

2000 at about 3.45 PM and thereafter started absenting themselves. 1½

months thereafter, due to a policy decision, the Petitioner‟s stitching unit had

to be closed on 7th November, 2000 and the entire factory closed down on 1 st

April, 2001. In view of the absence of Respondent Nos. 1 and 2 from duty

and closure of stitching unit on 7th November, 2000, it was a case of closure

as defined under Section 2(cc) of the Industrial Disputes Act. 1947 (in short

„ID Act‟). Thus, at best, Respondent Nos. 1 and 2 are entitled to closure

compensation. Section 2(cc) of ID Act contemplates even closure of part of

the establishment. As regards closure of the factory on 1 st April, 2001, the

Petitioner duly intimated to the authorities i.e. the Regional Provident Fund

Commissioner (RPFC), Director, Employees State Insurance Coporation

(ESI), Concilition Officer and the Labour Inspector. A perusal of the cross-

examination of the workmen would show that there was no rebuttal to the

evidence of the management that it had closed down the factory on 1 st April,

2001. The workmen in his cross-examination had admitted that he was not

refused duty by the management and thus, the finding of the learned Trial

Court regarding termination of service is perverse and without any basis and

is liable to be set aside.

3. Learned counsel for the Respondents on the other hand contends that

the case of the Petitioner is clearly of abandonment of duties. In the written

statement, it is not pleaded that call back notices were given to Repondent

Nos. 1 and 2 and the management for the first time in their evidence stated

that call back notices have been sent. However, no receipt thereof was

produced. Even the letters allegedly sent to the Government agencies

regarding closure of factory on 1st April, 2001 were rightly not relied upon

by the learned Trial Court as the receipts thereof with the Government

departments were not proved. Though the case of the Petitioner is that it

closed down its stitching and tailoring unit on 7th November, 2000 as a

policy decision and on 1st April, 2001 the entire factory was closed, however,

MW1 in his cross-examination stated that the management has been closed

down with effect from 7th November, 2000 by closing down stitching

department. Thus, there is apparent contradiction in the version of the

management which cannot be thus relied upon and the learned Trial Court

committed no error in discarding evidence of the Petitioner. Respondent

Nos. 1 and 2 have clearly proved that they went to duty but were not

permitted to join and no evidence was produced by the management to rebut

the evidence of the Respondents. Hence there being no error much less an

error of law in the impugned award, the present petition be dismissed.

4. I have heard learned counsel for the parties and perused the record.

The impugned award was passed on a reference sent by the Government in

the following terms of reference:

"Whether S/Sh. Mohan Lal & Kerai Lal have abandoned their services or their services have been terminated illegally and/or unjustifiably by the management and if so, to what sum of money as monetary relief along with consequential benefits in terms of existing laws/Govt. Notifications and to what other relief are they entitled and what directions are necessary in this respect?".

5. Joint statement of claim was filed by Respondent Nos. 1 and 2 stating

that Respondent No.1 joined the Petitoner as a pressman on 1st September,

1997 with a salary of Rs.2800/- and Respondent No.2 joined as pressman on

19th January, 1997 with a salary of Rs.2700/-. They stated that the

management did not provide any statutory facilities in accordance with

Minimum Wages Act, annual earned leave, bonus, attendance card,leave

card, overtime etc. On 24th September,. 2000 when Respondents 1 and 2

presented themselves for duty, the management without assigning any reason

and without any prior notice, told them to give resignation letter and receive

their full and final settlement. On the workmen refusing the same, the

management got annoyed and terminated their services without any notice or

notice pay or retrenchment compensation and did not even pay their earned

wages for the month of September, 2000. Though during conciliation

proceedings on 15th November, 2000, the management assured to take back

Respondent Nos. 1 and 2 on duty and pay their dues, however, when they

went on 16th November, 2000 they were refused to join the duties.

6. In the written statement, the claim of the management is that

Respondent Nos. 1 and 2 left their duties without any permission or

intimation on 23rd September, 2000 at 3.45 PM and never reported for duty

thereafter. The management gave intimation to the Labour Inspector

regarding their unauthorized absence vide letter dated 18th October, 2000.

Further the management closed its factory on 1st April, 2001 and intimation

whereof was duly given to all Government authorities like RPFC, Director,

ESI, Conciliation Officer, Labour Inspector etc. Respondent Nos. 1 and 2

were also informed about closure of the unit. Further, the stitching unit had

already been closed on 7th November, 2000 and since the industry ceased to

exist, there is no industrial dispute in existence. It is the case of closure and

Respondent Nos. 1 and 2 are entitled to closure compensation only.

7. On the basis of pleading sof the parties, following issues were

framed:-

1. Whether workman left their duties without any persmission or intimation on 23/09/2000?

2. Whether management has been closed down w.e.f. 01/04/2001?

3. Whether S/Shri Mohan Lal & Kerai Lal have been abandoned their services or their services have been terminated illegally and/or unjustifiably by the management and if so, to what sum of money as monetary relief along with consequential benefits in termsof existing laws/Govt. Notifications and to what other relief are they entitled and what directions are necessary in this respect?

8. A perusal of the statement of MW1 Anil Sharma shows that he has not

been able to prove receipt of call back notices to Respondent Nos. 1 and 2.

He admitted that copy of closure notice Ex. MW1/7 was not delivered to

Respondent Nos. 1 and 2. The grievance of the management against the

workmen appeared to be that they used to come late and in this regard

though no memo or chargesheet was given, however, letter of warning was

given. However, the relief of no such letter was proved. Neither any

attendance register nor any chargesheet was proved. MW1 further stated

that the management closed down the stitching unit with effect from 7th

November, 2000.

9. The date of joining and the date of last presenting for duty on 23rd

September, 2000 have not been disputed. The only issue that remained for

consideration before the learned Trial Court was whether it was a case of

termination or unauthorized absence from duty. On the basis of evidence

on record, learned Trial Court came to the conclusion that the management

has failed to prove the genuniness of MW1/5 & 6. It has also failed to prove

that call back notices were served on the Respondent Nos. 1 and 2. It was

further held that the management withheld the best evidence which was in its

possession and thus the first issue as to whether the workmen left their duties

without any permission or intimation on 23 rd September, 2000 was held

against the management. On the basis of evidence on record and the fact that

the Petitioner has not been able to prove any of its documents, I find that

there is no illegality committed by the learned Trial Court in arriving at the

finding regarding first issue against the Petitioner.

10. As regards the second issue whether management has been closed

down w.e.f. 01/04/2001 or not, learned Trial Court came to the conclusion

that in view of the contradictory reply and false plea of the management, the

said issue is requird to be decided against the Petitioner. This finding of the

learned Trial Court is contrary to the record. MW1, the witness of the

Petitoner has proved on record the letters to the various authorities like the

Labour Conciliation Officer, Regional Provident Fund Commisisoner and

ESIC along with the acknowledgement due. Further there is no

contradiction in the testimony of MW1 and the written written statement.

MW1 in his testimony has stated that the management closed down with

effect from 7th November, 2000 by closing down stiching department and on

1st April, 2001, the management closed down completely.

11. As regards the third issue, the learned Trial Court came to the

conclusion that it was not the case of abandonment but of illegal termination.

As per the Petitioner it was the case of unauthorized absence and neither

termination nor abandonment. In this connection it may be noted that

admittedly as per both the parties, Respondent Nos. 1 and 2 did not work

beyond 23rd September, 2000. The management has not been able to prove

the call back notices sent to Respondent Nos. 1 and 2. The workmen sent

the demand notices by Regd. A.D. cover and UPC dated 28 th September,

2000 and lodged a complaint with the Assistant Labour Commissioner on 5 th

October, 2000. Complaint was further lodged with the Labour Conciliation

Officer on 17th November, 2000. Thus, the evidence of the Respondents is

unrebutted. Even if the finding of the learned Trial Court is contrary to the

facts on record on the first issue, however, that is of no avail to the

Petitioner. The closure of the stiching unit took place on 7th November,

2000 and complete closure took place on 1st April, 2001, much later than the

date of illegal termination of the Respondents. It is the case of the Petitoner

that the Respondents were negligent in attending the duties and not that there

services wsere discharged due to closure.

12. The scope of interference in a writ petition against the order of the

Trial Court is limited. This Court can inferefere with the findings of the

learned Trial Court only if the finding is perverse or based on no evidence or

the Trial Court omits to consider material evidence on record. After hearing

learned counsel for the parites and perusal of the record, I find no irregularity

much less any illegality or perversity in the above findings of the learned

Trial Court on issues No. 1 and 3. As regards the relief of compensation, I

find no error in granting compensation to the tune of Rs.2,50,000/- and

Rs.2,45,000/- to Respondent Nos. 1 and 2 respectively, however, grant of

interest @18% pa is unawarranted. Thus, the impugned award is modified

to the extent that the Petitioner shall pay interest @ 9% pa on compensation

amount from the date of the award, besides a joint litigation cost of

Rs.10,000/- to the Respondents. Since the Petitioner has already deposited

25% of the award amount in terms of order of this Court dated 22nd August,

2008, which has been ordered to be kept in the fixed deposit, the petitioner is

not required to pay interest on that amount. The registry shall release the

said amount deposited by the Petitoner in this Court along with interest to

the Respondents/workmen forthwith. The Petitioner shall pay the remaining

75% awarded amount along with uptodate interest to the

Respondents/workmen within six weeks from today.

11. The petition and applications are disposed of accordingly.

(MUKTA GUPTA) JUDGE

OCTOBER 15, 2012 VKM