M/S Mohan Overseas Limited vs Sh. Ram Kumar Sharma
2015 Latest Caselaw 6311 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of Decision: 26th August, 2015

+       W.P.(C) 6718/2012

        M/S MOHAN OVERSEAS LTD.                 ..... Petitioner
                    Through: Mr.P.R.Chatterji and Mr.Ricki
                             Kundra, Advocates

                             versus

        SH. RAM KUMAR SHARMA                  ..... Respondent
                     Through Mr.O.P.Ahuja, Advocate

        CORAM:
        HON'BLE MS. JUSTICE SUNITA GUPTA

                                      JUDGMENT

: SUNITA GUPTA, J.

1. Challenge in this writ petition is to the award dated 19.12.2011 passed by learned POLC-V, Karkardooma Courts, Delhi in DID No.737/2008, vide which the respondent-workman was awarded 75% of his wages @ Rs.5,700/- per month with effect from 09.05.2015 till date of passing of award besides cost and litigation expenses to the extent of Rs.20,000/-.

2. The factual matrix of the case as revealed from the award is that the workman was working as a labour in store department of the management since 1997 on a monthly salary of Rs.5,700/- per month. On 09.05.2005, the management terminated his services illegally with

mala fide intention and did not allow him to join his duties. A demand notice was sent on 22.10.2005 but the management did not reply. As such, directions were sought to reinstate him in service with continuity of service and full back wages.

3. The case was contested by the management on the ground that the management never terminated the services of the workman. He himself abandoned his services since 01.05.2002. No notice was ever served by the workman upon the management. On the pleadings of the parties, following issues were framed by the Labour Court:-

(i) Whether the claimant has left the services of the management of his own as claimed in para 3 and 4 of merits of written statement, if so, to what effect?

(ii) Whether the services of the claimant have been terminated illegally and unjustifiably by the management?

(iii) Relief.

4. Both the parties led their respective evidence. Labour Court decided both issues No.(i) and (ii) in favour of the workman holding that the management has not produced any record of attendance and salary register showing that the workman stopped attending his services. Reliance was placed on D.K. Yadav Vs. M/s. J.M.A. Industries Ltd., 1993 (3), SCT, 537 where it was observed by Hon'ble Supreme Court that the order of termination of service of an employee/workman visits with civil consequences of jeopardising not only his/her career but also the livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman, fair play requires that a reasonable opportunity to

put forth his case is given and domestic enquiry is conducted complying with the principles of natural justice.

5. It was further observed that the management did not conduct any enquiry against the workman nor served him any notice, therefore, the management failed to prove that the workman absented himself voluntarily on or after 01.05.2005 and failed to resume his duties. Since no notice of termination was given by the management nor any charge-sheet was given or any domestic enquiry was conducted, as such, the services were illegally terminated by the management.

6. As regards issue No.3, it was observed that since the services of the workman was terminated by the management on 09.05.2005 and a period of 6 years have elapsed and during this period, the workman was earning something to keep his body & soul together and survival of his family, therefore, he was awarded 75% of his wages @ Rs.5,700/- per month besides litigation expenses.

7. Feeling aggrieved, the present writ petition has been filed.

8. Learned counsel for the petitioner submitted that the findings of the learned Presiding Officer, Labour Court are erroneous inter alia, on the following grounds:-

(i) The plea of the workman that he was in the employment of the management since the year 1997 is factually incorrect as he had joined the services of the petitioner with effect from 01.01.2000, which is reflected from resume/bio data dated 01.01.2000

Ex.MW1/3 proved by the management.

(ii) Furthermore, the Labour Court has awarded back wages @ Rs.5,700/- per month, however, absolutely no documentary evidence was filed by the workman to prove that he was getting monthly salary of Rs.5,700/- per month. Instead, the management had filed Form 6 pertaining to return of contribution Ex.MW1/4 which clearly shows that the last drawn salary of the respondent was Rs.3,600/- per month and not Rs.5,700/- per month as claimed by him.

(iii) During the course of his employment, the workman was given Hero Honda Moped worth Rs.18,000/- in April, 2005. The same was not returned by the respondent even after abandoning his job. The petitioner was constrained to initiate appropriate legal proceedings before Chief Metropolitan Magistrate and only pursuant to the orders of Additional Chief Metropolitan Magistrate, Tis Hazari Courts, Delhi, the Moped was returned by the respondent in the year 2015.

(iv) A sum of Rs.10,000/- was taken as advance by the respondent which was never repaid.

(v) At no point of time, the petitioner terminated the services of the respondent. He himself suddenly stopped coming to the office with effect from 01.05.2005. This fact stands admitted by the respondent in his cross-examination where he admitted that the management was calling him every week for full & final settlement.

(vi) Since the respondent was never terminated by the petitioner,

therefore, question of issuing any charge-sheet or initiating any departmental enquiry does not arise.

9. On the other hand, counsel for the workman submits that the services of the workman were illegally terminated on 09.05.2005 and despite notice given by the respondent, he was not taken back by the petitioner-management. It was not disputed that the moped was given by the petitioner. However, it was submitted that the workman had gone to the management to return the moped on several occasions but the petitioner did not take delivery for reasons best known to them. Now the moped has been returned before the Chief Metropolitan Magistrate, Tis Hazari Courts, Delhi.

10. As regards, the factum of taking advance of Rs.10,000/-, it was submitted that the same was taken at the time of marriage of son of the respondent, but the petitioner did not pay salary to the workman for subsequent two months. The award is a well-reasoned one and does not suffer from any infirmity which calls for interference.

11. The question whether the workman himself abandoned the services of the petitioner or he was illegally terminated by the petitioner is under serious challenge. It is the case of the petitioner that the management never terminated the services of the workman and he himself stopped attending his duties. In cross-examination, the respondent-workman has admitted that no action was taken by him against the management from 09.05.2005 to 22.10.2005 because he was being called by the management every week for full & final

settlement. If the version of the management is accepted that he was never terminated, then question of issuing any charge-sheet or initiating departmental enquiry does not arise.

12. There is also a dispute as to when the respondent joined the services of the petitioner as according to the workman, he joined the department since 1997 whereas the Bio data Ex.MW1/3 submitted by him is dated 01.01.2000. Moreover, respondent himself filed his Employees State Insurance Corporation identity card before the Labour Court wherein date of his appointment is shown as 15.02.2000. Therefore, it is to be ascertained as to when the workman actually joined the services of the management.

13. Even if it is taken that this aspect does not assume much significance as it is the undisputed case of the parties that the workman was an employee of the petitioner but question of his salary assumes significance as according to the workman, his monthly salary was Rs.5,700/- per month for which, he has not placed on record any documentary evidence whereas it is the case of the petitioner that the salary of the workman was Rs.3,600/- per month and in support thereof, the management had placed on record ESI return of contribution.

14. The plea of the workman that after his illegal termination, he went number of times to the petitioner to return the moped, does not inspire confidence because if that had been the case there was no plausible reason for the petitioner not to take the vehicle back and to

resort to legal proceedings for recovery of the vehicle. It is undisputed case of the parties that the proceedings for recovery of vehicle was initiated by the management before the Ld. CMM and it was only pursuant to the orders of the Court that the Moped was returned by the respondent in the year 2015.

15. Moreover, the crucial question as to whether it was the case of abandonment of service by the respondent or illegal termination of services by the petitioner has not been answered properly by the learned Labour Court. The Labour Court primarily based its findings relying upon D.K. Yadav (supra) for holding that before terminating the services of an employee, a domestic enquiry is required to be conducted and in the instant case, since no such domestic enquiry was conducted, therefore, it was observed that the workman did not get any opportunity to present his case before the Enquiry Officer.

16. However it is not the case of management that the services of the workman was ever terminated, rather it is their case that the workman himself abandoned the services. The workman has admitted in his cross examination that he did not initiate any action against the management during the period 01.05.2005 to 22.10.2005. The explanation furnished by him is that during this period the management had been calling him for full and final settlement. No categorical finding has been given by the Labour Court whether it was the case of abandonment of duties or termination of service. Moreover, although the management has been directed to pay wages at the rate of Rs.5,700/- per month, however, no specific finding has

been given as to what was the salary given to the workman. The Labour Court has not dealt with these issues in the light of evidence brought before it.

17. It is settled law that in exercise of the jurisdiction u/s 226/227 of the Constitution of India, this Court does not sit as a Court of appeal over the award of inferior court. However, once it is shown that certain important facts on record have not been considered which were material for determination of the real issues between the parties, then this Court can interfere in the findings of the lower court.

18. In view of the above discussion, the award dated 19.11.2011 passed by the Labour Court is set aside. The matter is remanded back to the learned POLC-V to re-hear the matter. In case of need, the parties may be afforded opportunity to lead further evidence and then give its findings preferably within a period of three months from the date of receipt of order.

(SUNITA GUPTA) JUDGE AUGUST 26, 2015 neelam