M/S.Roshinlal Gupta & Sons vs Presiding Officer & Anr.
2014 Latest Caselaw 7105 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of decision: 23rd December, 2014.

+                                 W.P.(C) No.46/2003

       M/S.ROSHINLAL GUPTA & SONS                 ..... Petitioner
                    Through: Mr. R.K. Singh, Adv.
                            Versus
    PRESIDING OFFICER & ANR.                 ..... Respondents

Through: Mr. Ramakant Tripathi, Adv. for R-2.

CORAM :-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This petition under Article 226 of the Constitution of India impugns

the Award dated 23rd March, 2002 of the Labour Court-X, Delhi in I.D.

No.2258/95 (old I.D.No.381/88) answering the following reference:-

"Whether the services of Sh. Nawal Kishore have been terminated illegally and / or unjustifiably and if so, to what relief is he entitled and what directions are necessary in this respect?"

in favour of the respondent no.2 workman Sh. Nawal Kishore and

directing the petitioner to reinstate the respondent no.2 workman with full

back wages.

2. On 3rd January, 2003, notice of the petition was issued to the

respondent no.2 workman and vide ex parte order the operation of the

Award was stayed subject to the petitioner depositing the entire back wages

in terms of the Award of the Labour Court in this Court. The order dated

22nd January, 2003 records that an amount of Rs.1,47,000/- has been

deposited in this Court. However since as per the calculation of the Labour

Court, the back wages came to Rs.2,20,269/- the petitioner sought

permission to deposit the balance amount after seeking clarification from the

Labour Court. The respondent no.2 workman failed to file counter affidavit

inspite of opportunity. On 9th March, 2004, Rule was issued in the petition

and the ex parte ad interim order dated 3rd January, 2003 made absolute till

the disposal of the writ petition with the direction that the amounts deposited

by the petitioner be kept in a fixed deposit, to be renewed from time to time.

Though the petition was listed from time to time but none appeared for the

parties; on one occasion when the counsels appeared they sought

adjournment. The petition, on 17th December, 2013 was dismissed in default

of appearance of the parties but was on 15th May, 2014 restored on the

application of the petitioner. The petition came up before this Court on 15 th

December, 2014 when, though the counsel for the petitioner appeared none

appeared for the respondent no.2 workman. The matter was accordingly

adjourned to 16th December, 2014 when upon Mr. S. Shahi, Advocate for the

respondent no.2 workman being contacted telephonically, one Mr. Ramakant

Tripathi, Advocate appeared and informed that Mr. S. Shahi had been

selected in the West Bengal Higher Judicial Service; and took adjournment

to take appropriate steps. The counsel for the petitioner, in the circumstances

was heard and the matter posted to 22nd December, 2014 and thereafter to

today. The counsel for the respondent no.2 workman has been heard.

3. The Labour Court, in the impugned Award, has observed:-

(i) that the case of the respondent no.2 workman was that he was

employed with the petitioner as a "Layerman" since 30th April,

1985 on monthly wages of Rs.450/-; that the petitioner withheld

his earned wages from 1st October, 1987 to 12th November,

1987 and terminated his services on 12th November, 1987,

without any notice;

(ii) that it was the case of the petitioner that the respondent no.2

workman was working with it on a part time basis and was a

habitual latecomer and did not do the work assigned to him and

misbehaved with others in the petitioner Company and had left

the job on his own accord and had started working with an

electrician and there was no relationship of employee and

employer between the parties; it was also pleaded that the

respondent no.2 workman had so worked, only from 1st

January, 1987 to 11th November, 1987 and it was denied that

the respondent no.2 workman had been working with the

petitioner since 30th April, 1985; and,

The Labour Court, on appreciation of the pleadings, documents and

oral evidence led, found, (a) that it was the admitted position that no

domestic enquiry had been conducted by the petitioner; (b) that even as per

the petitioner, the respondent no.2 workman had remained in its service for

more than 240 days; (c) the petitioner presumed abandonment without

showing the circumstances for the same; (d) that the petitioner was bound to

establish that the respondent no.2 workman had absolutely no intention to

resume duty and was bound to hold domestic enquiry even in case of

abandonment; and, (e) that thus the action of the Management terminating

the service of the respondent no.2 workman was illegal and unwarranted.

Accordingly, the Award of reinstatement with full back wages was passed.

4. The contention of the counsel for the petitioner was that the

respondent no.2 workman was doing the work of laying / affixing to the

floor the carpets sold, supplied and delivered by the petitioner; that he was a

daily wager, working on part time basis. Reliance in this regard is placed on

the cross examination recorded on 20th March, 1995 by the Labour Court of

the respondent no.2 workman and which is as under:-

"It is incorrect to suggest that I had worked as part time. It is incorrect to suggest that I had worked in all the three companies with the Management. I had worked in three companies different times during 1985- 1987. The other two firms are Roshin Lal Gupta and Sons and third is S.K. India Pvt. Ltd."

and on basis whereof it was contended that admission of working in

three companies is admission of part time employment.

5. I am unable to read any admission. The respondent No.2 workman

denied the suggestion of working in three companies at same time and

clarified that he had worked in the three companies at different times.

Moreover, the suggestion of the petitioner itself was that all the three

companies were of the same management. That, perhaps also explains the

contradiction in the version, qua the date of joining employment, of the

petitioner and the respondent No.2 workman. The suggestion in cross-

examination is indicative of the management of the petitioner carrying on

same business of sale and delivery of carpets in three different names.

However, upon the same being put to the counsel for petitioner he fairly

admitted that he is not able to make a categorical statement in this regard.

Suffice it is to state that it was neither so suggested in cross-examination nor

is it the plea in this petition.

6. The counsel for the respondent no.2 workman of course contended

that all the three companies in which the respondent no.2 workman deposed

having worked, were of the same Management.

7. Unfortunately, in this case also, the Labour Court record has neither

been requisitioned inspite of this petition having remained pending for the

last nearly eleven years nor did either of the counsel at any stage seek

requisitioning thereof. The same is thus not available. No such request was

made during the hearing also. At this belated stage, I do not want to defer the

matter any further on this ground.

8. However the need for this Court to take a view on the aforesaid

controversy does not arise in as much as the counsel for the respondent no.2

workman has also stated that the respondent no.2 workman belonged to the

State of Bihar and had long back left for Bihar and has now for the last many

years been residing at Bihar only and is not interested in coming back to

Delhi. It is also informed that he is now about sixty years of age.

9. Though the counsel for the petitioner has no instructions as to what is

the age of retirement if any in the petitioner Company but again in view of

the respondent no.2 workman being not willing to be reinstated as awarded

by the Labour Court, the same also is ir-relevant.

10. The only question thus, both counsels agree, is as to what is the

monetary compensation if any to be given to the respondent no.2 workman.

11. After considering and discussing the various factors I had suggested

the a lump sum amount of Rs.2,50,000/- be paid to the respondent no.2

workman.

12. Though initially the counsel for the petitioner resisted contending, that

from the admission of the respondent no.2 workman having left for Bihar the

case of abandonment is clearly proved and that the petitioner was not

required to hold any domestic enquiry and the Award is liable to be set aside

in entirety and the petitioner is entitled to refund of the monies deposited in

this Court but upon persuasion by this Court to take a sympathetic view,

finally agreed to the said proposal.

13. The counsel for the respondent no.2 workman though not able to say

that the said proposal is unfair, stated that he has no instructions from the

respondent no.2 workman in this regard.

14. I have deemed the amount of Rs.2,50,000/- to be proper, considering

the fact, (i) that the last drawn wages of the respondent no.2 workman were

admittedly Rs.450/- per month; (ii) that the respondent no.2 workman

according to his own case also had worked with the petitioner only for 29

months i.e. a little over two years; (iii) the respondent no.2 workman in the

present proceedings neither filed a counter affidavit nor deemed it

appropriate to file an application under Section 17B of the Industrial

Disputes Act, 1947 - evidently he was not entitled thereto and was gainfully

employed elsewhere; (iv) the respondent no.2 workman has not even really

contested this case - he has not even claimed the cost for defending this

petition; (v) the Award of the Labour Court is perfunctory, without

discussing any evidence and merely on the ground of the petitioner having

not held domestic enquiry; and, (vi) though I have in Shri Balley Vs. M.C.D.

MANU/DE/0648/2010 held such inquiry to be necessary even where daily

rated workman is alleged to have abandoned his employment but I find a co-

ordinate bench, in Water Supply & Sewage Disposal Vs. P.O. Labour Court

(201) 2013 DLT 50 to have held such domestic enquiry to be not necessary

where the Management avers the daily wager to have abandoned the work;

(vii) there is on record an affidavit to the effect that the petitioner Company

is lying closed since 1st November, 2013, on death of its managing partner.

15. Accordingly, the petition is partly allowed, by modifying the Award

of the Labour Court from that of reinstatement of the respondent no.2

workman with full back wages, to payment by the petitioner of a lump sum

amount of Rs.2,50,000/- to the respondent no.2 workman in full and final

satisfaction of all claims whatsoever of the respondent no.2 workman against

the petitioner.

16. It is axiomatically directed that out of the amount lying deposited in

this Court and the interest accrued thereon, a sum of Rs.2,50,000/- be

released in favour of the respondent no.2 workman and the balance if any be

refunded back to the petitioner. It is further directed that the said sum of

Rs.2,50,000/- of the share of the respondent no.2 workman be also kept in a

maximum interest bearing deposit till the same is withdrawn by the

respondent no.2 workman; if the respondent no.2 workman does not

withdraw the said amount with further interest if any accrued thereon on or

before 31st March, 2016, the respondent no.2 workman would be deemed to

be not interested in claiming the said amount and the said amount be also

refunded to the petitioner.

RAJIV SAHAI ENDLAW, J.

DECEMBER 23, 2014./„pp‟..