Delhi High Court

The Management Of M/S Amalgamated ... vs Shri Radhey Shyam Sharma C/O ... on 29 October, 2015

Author: I. S. Mehta

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+                                      Judgment delivered on: October 29, 2015

%       W.P.(C) No. 3681/2004


       THE MANAGEMENT OF M/S AMALGAMATED
       COMPONENTS (P) LTD.                         ..... Petitioner
                         Through: Ms. Jeevesh Nagrath, Mr. Shobhit
                                  Phutela and Mr. Mayank Sapra,
                                  Advocates.

                           versus

        SHRI RADHEY SHYAM SHARMA
        C/O ENGINEERING WORKERS LAL
        JHANDA UNION (REGD.)                       .....Respondent
                         Through: Mr. Som Dutt Sharma, Advocate.

        CORAM:
        HON'BLE MR. JUSTICE I.S.MEHTA

                                    JUDGMENT

I. S. MEHTA, J.

1. The present petitioner, i.e., The Management of M/s Amalgamated

Components (P) Ltd. (hereinafter referred to as the „petitioner-

management‟) has preferred the present Writ Petition under Articles 226

and 227 of the Constitution of India for setting aside the impugned Award

dated 13.05.2003 passed by the Presiding Officer, Industrial Tribunal - II,

Karkardooma Courts, Delhi (hereinafter referred to as the „learned

Industrial Adjudicator‟) in I.D. No. 979/90.

2. The brief facts as stated are that the respondent-workman, i.e., Shri

Radhey Shyam Sharma joined the petitioner-management as turner w.e.f.

18.03.1983 and was drawing wages of Rs. 1055/- per month as a skilled

labour/worker. During his engagement with the petitioner-management,

it is alleged that the respondent-workman was late in reporting for his

duties and a letter dated 20.03.1989 was issued to the respondent levelling

charges of late attendance. The respondent-workman demanded Hindi

translation of the above-mentioned letter dated 20.03.1989 and it is

alleged by the respondent-workman that instead of furnishing Hindi

translation of the aforementioned letter dated 20.03.1989, the petitioner-

management suspended the respondent-workman w.e.f. 31.03.1989 and

issued a charge sheet vide letter dated 07.04.1989. The respondent-

workman filed his reply dated 17.04.1989 denying the charges. The

petitioner-management did not find the reply satisfactory and

subsequently, an inquiry was initiated against him vide letter dated

21.04.1989 which was not completed. Thereafter, a compromise dated

19.05.1989 was reached between the worker's Union and the petitioner-

management, to which the respondent-workman, i.e., Shri Radhey Shyam

Sharma was one of the signatory. The respondent-workman has alleged

that he proceeded on sanctioned leave from 29.06.1989 to 08.07.1989 to

his native place after obtaining an oral permission from the management,

as the petitioner-management had never adopted the practice of issuing

sanction of leave in writing. The respondent-workman after availing leave

was not allowed to resume his duties by the petitioner-management and

the said matter was reported to the Assistant Labour Commissioner and

on his intervention, the respondent-workman collected his wages on

10.07.1989. The respondent-workman allegedly reported for duty on

11.07.1989 and 13.07.1989 but he was not taken on duty by the

petitioner-management. Thereafter, the respondent-workman vide

demand letter dated 13.07.1989 demanded his reinstatement with full

back wages and continuity of service. Subsequently, on failure of the

conciliation proceedings, the dispute was referred by the Secretary

(Labour), Government of NCT of Delhi, vide reference No. F-

24(1874)/90-Lab./18403-8 dated 08.06.1990, to the Industrial Tribunal

for adjudication on the following terms of reference:

"Whether Shri Radhey Shyam Sharma has abandoned his services or the same 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?"

The respondent-workman filed his statement of claim before the

learned Industrial Adjudicator, the petitioner-management filed its reply

and thereafter, rejoinder on behalf of the respondent-workman was filed

and after framing the issues, both the parties led their respective evidence

on their behalf and thereafter, the learned Tribunal passed the impugned

Award dated 13.05.2003 in favour of the respondent-workman.

Aggrieved by the aforesaid Award dated 13.05.2003, the petitioner,

i.e., The Management of M/s Amalgamated Components (P) Ltd., has

preferred the present Writ Petition.

3. The learned counsel appearing on behalf of the petitioner-

management has drawn the attention of this Court to the fact that the

respondent-workman has committed misconduct by absenting himself

from duty unauthorisedly from time to time and coming late on duty. The

learned counsel for the petitioner-management has further submitted that

the workman misconducted himself by damaging the machinery at the

workplace and consequently, the workman was suspended for misconduct

vide letter dated 31.03.1989. The learned counsel for the petitioner-

management has further submitted that the worker's Union entered into a

compromise with the management on 19.05.1989.

The learned counsel for the petitioner-management has submitted

that the respondent workman himself abandoned the services of the

petitioner-management w.e.f. 29.06.1989 and further submitted that all

the claims and dues of the respondent-workman were paid on 10.07.1989

in presence of the Labour Inspector and now, nothing is due in favour of

the respondent-workman since the respondent-workman was requested

many times to join the services of the petitioner-management but he

abandoned the services of the petitioner-management and joined the

services of M/s. Motief Components Pvt. Ltd. where he was gainfully

employed during the relevant period.

The learned counsel for the petitioner-management has further

submitted that the impugned Award dated 13.05.2003 is perverse, illegal

and contrary to the facts on record.

The learned counsel for the petitioner has further submitted that, as

on date, the workplace has already been closed down w.e.f. 30.06.2003,

therefore, the plea of the respondent-workman for re-instatement loses its

significance and placed reliance on the case titled as Ramrao & Ors. vs.

All India Back-ward Class Bank Employees welfare Association & Ors.,

2004 (2) SCC 76.

The learned counsel for the petitioner-management has further

submitted that since the workman himself abandoned the employment of

the management and did not work during the relevant period, therefore,

he is not entitled to back-wages.

The learned counsel further submitted that the respondent-

workman is now dragging the management into undue litigation for his

unlawful monetary gains and the impugned Award dated 13.05.2003 is

liable to be set aside and has placed reliance on the following judgments:

a) Syed Yakoob vs. K.S. Radhakrishnan & Others, AIR 1964 SC 477.

b) Management of Madurantakam Coop. Sugar Mills Ltd. vs. S.

Viswanathan, (2005) 3 SCC 193.

c) Atlas Cycles (Haryana) Ltd. vs. Kitab Singh, (2013) 12 SCC 573.

d) Ramrao and Others vs. All India Backward Class Bank Employees

Welfare Association and Others, (2004) 2 SCC 76.

e) Pasupuleti Venkateswarlu vs. The Motor and General Traders, AIR

1975 SC 1409.

f) M/s Purafil Engineers, Pune vs. Shaikh Anwar Abdul Rahman,

2000 LLR 268 Bombay.

g) R.K. Kitchen Equipments, Mumbai vs. Majid Yusuf Hurape & Ors.

2003 LLR 920 Bombay.

h) Raju Sankar Poojary vs. Chembur Warehouse Company and Anr.,

2003 LLR 1150 Bombay.

i) State of Punjab vs. Jagbir Singh, 2004 LLR 1131 SC.

j) Sonal garments vs. Trimbak Shankar Karve, 2003 LLR 5 Bombay.

4. On the other hand, the learned counsel appearing on behalf of the

respondent-workman has submitted that the workman was employed with

the management as a skilled workman w.e.f. 18.03.1983. The learned

counsel has further submitted that the management got annoyed due to

the general demand raised by the workmen in the industry and the

respondent-workman was one of them. The management consequently

levied false charges against the respondent-workman of late attendance

and of arriving late to the workplace. Subsequently, the management also

suspended the respondent-workman by levying fresh charges of

damaging the machinery at the workplace. The dispute pertaining to the

general demand between the worker's Union and the petitioner-

management was compromised on 19.05.1989 to which respondent-

workman, i.e., Shri Radhey Shyam Sharma was one of the signatory.

Thereafter, on 29.06.1989, the respondent-workman proceeded on

sanctioned leave to his native place up to 08.07.1989 and when he

reported for duty on 10.07.1989, the petitioner-management refused to

take him on duty. Thereafter, the respondent-workman took the Labour

Inspector to the workplace and the management paid him wages for the

month of June, 1989 and asked him to report for work on 11.07.1989. On

11.07.1989, the respondent-workman reported for duty but the petitioner-

management refused to take him on duty. The respondent-workman again

on 13.07.1989 reported for duty but the management again refused to take

him on duty. Consequently, the respondent-workman raised an industrial

dispute on 21.07.1989 and further submitted that the respondent-

workman is further ready to join his duty at the workplace run by the

petitioner-management.

5. In the instant case, the petitioner-management has taken the plea

that the respondent-workman had himself abandoned the services of the

petitioner-management w.e.f. 30.06.1989. The petitioner-management

further relied upon the compromise dated 19.05.1989 (Ex. WW1/M10)

reached between the petitioner-management and the worker's Union

pertaining to the general demand of the workers against the management

in which the respondent-workman, i.e., Shri Radhey Shyam Sharma was

one of the signatory.

6. Admittedly, the respondent-workman is in the employment of the

petitioner-management w.e.f. 01.01.1984 as per Para 1 of the written

statement, which is reproduced as under:

"1....The true fact is the claimant was working with the management from 01.01.1984..."

There is no plea taken by the petitioner-management that the

respondent-workman was not in their employment during the relevant

period, i.e., 01.01.1984 to 19.05.1989. There is no plea on behalf of the

petitioner-management that the respondent-workman was not a signatory

to the compromise taken place between the management and the worker's

Union leaders pertaining to the general demands of the workers. Here,

even otherwise, if this Court notes, the date of employment, of the

respondent-workman with the management as per the date of appointment

admitted by the management in their written statement, i.e., 01.01.1984,

the respondent-workman has acquired the status of a 'workman' under

Section 2(s) of the Industrial Disputes Act, 1947 prior to the compromise

dated 19.05.1989 and worked for 240 days under the petitioner-

management in the relevant year thereby attracting the mandatory

provisions of Section 25-F and Section 25-G of the Industrial Disputes

Act, 1947.

7. The aforesaid compromise dated 19.05.1989 reached between the

petitioner-management and the worker's Union was pertaining to the

general demand in the year 1989 and the respondent-workman, i.e., Shri

Radhey Shyam Sharma's signature on the management document (Ex.

WW1/M10) is an evidence of the fact that the respondent-workman was

fighting against the petitioner-management for the rightful cause of the

workers and the management was not pleased with the stand taken by the

respondent-workman in the said general demand. It is further evident that

the management's own document dated 20.03.1989 seeking explanation

from the respondent-workman for his late attendance, notice dated

01.07.1989 issued against the respondent-workman for unauthorised

absence and the charge-sheet dated 07.04.1989 are nothing but good

pressure-building tactics adopted by the petitioner-management against

the respondent-workman at the relevant period. Consequently, the same

dispute between the parties ultimately resulted in the aforementioned

compromise dated 19.05.1989 which means that the respondent-workman

till 19.05.1989 was holding the status of a 'workman‟ within the meaning

of Section 2(s) of the Industrial Disputes Act, 1947. The services of the

workman who had completed 240 days during the relevant year could

only be terminated in accordance with Section 25-F and Section 25-G of

the aforementioned Act.

8. Further, the plea of the petitioner-management is that the

respondent-workman absented himself from duty without prior

permission of the petitioner-management since 29.06.1989 and the

respondent-workman, despite being issued notices dated 01.07.1989 and

07.07.1989, did not report for duty. Therefore, the respondent-petitioner

abandoned the services of the petitioner-management. The petitioner-

management has further contended that the respondent-workman is not

entitled to back-wages as he himself has abandoned the services of the

petitioner-management.

The said plea, i.e., abandonment of services, taken by the

petitioner-management, does not seem to be correct in presence of

documents available on record. The Division Bench of the Delhi High

Court in the case of B.G. Saraswat vs. Engineers India Ltd., 61 (1996)

DLT 588, has made the observation that unless there is material available

to show intention on the part of the workman to totally give up duties, it

will not be possible to arrive at the conclusion that the respondent-

workman would have abandoned the services of the petitioner-

management. The respondent-workman has specifically stated that after

the aforementioned compromise dated 19.05.1989, he obtained oral

sanction of leave w.e.f. 29.06.1989 to 08.07.1989. Thereafter, the

aforesaid fact is also communicated to the petitioner-management by the

respondent-workman through his letter dated 13.07.1989 (Ex. WW1/6).

Moreover, the aforesaid plea taken by the petitioner-management, i.e.,

abandonment of services by the respondent-workman, loses its

significance for want of inquiry pertaining to alleged misconduct. On the

contrary, the plea of the respondent-workman that he reported for duty on

11.07.1989 and 13.07.1989 and the petitioner-management refused to

take him on duty, has to be accepted in absence of any domestic inquiry

to this effect.

9. So far as the question of merit on this point is concerned, it is the

learned Industrial Adjudicator who has already adjudicated the plea on

the basis of material evidence placed before him. The adequacy,

inadequacy, sufficiency or insufficiency of evidence on this point and the

inference of the fact to be drawn from the said finding is within the

exclusive jurisdiction of the Industrial Adjudicator. Reliance in this

regard is placed on Syed Yakoob vs. K.S. Radhakrishnan & Others, AIR

1964 SC 477.

10. The next contention put forth by the petitioner-management that

the respondent-workman is not entitled to back wages as he refused to

work during the relevant period does not seem to be correct. The learned

counsel for the petitioner-management has relied upon the following

judgments in support of its contention:

a) R.K. Kitchen Equipments, Mumbai vs. Majid Yusuf Hurape & Ors.

2003 LLR 920 Bombay

b) Raju Sankar Poojary vs. Chembur Warehouse Company and Anr.,

2003 LLR 1150 Bombay

c) M/s Purafil Engineers, Pune vs. Shaikh Anwar Abdul Rahman, 2000 LLR 268 Bombay.

d) State of Punjab vs. Jagbir Singh, 2004 LLR 1131 SC

e) Sonal garments vs. Trimbak Shankar Karve, 2003 LLR 5 Bombay

The aforementioned cases are relating to the facts where the

workman has abandoned the services of the management. whereas in the

instant case, the petitioner-management has illegally terminated the

services of the respondent-workman.

In the present case, the respondent-workman has already acquired

the status of a 'workman' as defined under Section 2(s) of the Industrial

Disputes Act, 1947 and worked for 240 days during the relevant year

and the petitioner-management failed to discharge the onus of proving

the compliance of Section 25-F and 25-G of the aforesaid Act. Since,

the element of misconduct and his subsequent refusal to join duties

during the relevant period has not been proved against the respondent-

workman in any domestic inquiry or before the Industrial Adjudicator,

therefore, the right which has already accrued in favour of the

respondent-workman under Section 2(s) of the said Act cannot be

abrogated by the petitioner-management by denying him back wages

and reinstatement in service for no fault on the part of the respondent-

workman. The Hon'ble Supreme Court of India, in the case titled as

Jasmer Singh vs. State of Haryana, (2015) 4 SCC 458, made the

following observations:

"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."

(Emphasis Supplied)

11. The learned counsel for the petitioner-management has further

submitted that the respondent-workman is gainfully employed with M/s

Motief Components Pvt. Ltd. and also submitted that the learned

Industrial Adjudicator has incorrectly concluded that this fact has not

been established. The learned counsel for the petitioner-management

placed reliance on Management of Madurantakam Coop. Sugar Mills

Ltd. vs. S. Vishwanathan (Supra) wherein the Hon'ble Supreme Court

has held that the High Court can go into a question of fact while

exercising a power under Articles 226 or 227 of the Constitution of the

India if the finding of fact is perverse or if the same is not based on legal

evidence. The petitioner-management has also placed reliance on the case

titled as Atlas Cycles (Haryana) Ltd. vs. Kitab Singh, (Supra) wherein

the Hon'ble Supreme Court has held that High Court may issue a writ of

certiorari while exercising Writ jurisdiction under Article 226 of the

Constitution of India if the finding of fact is based on no evidence.

In the instant case, the respondent-workman in his statement of

claim has specifically stated that he is unemployed since his termination

as he could not get any alternative job and wants to serve the petitioner-

management. This version is supported with his affidavit. The petitioner-

management in rebuttal in its written statement failed to state before the

Industrial Adjudicator, specifically the particulars or whereabouts of

respondent-workman's gainful employment. The petitioner-management

in its affidavit has stated that the respondent-workman joined the

company M/s Motief Components at Hyderabad. In this regard, the

Industrial Adjudicator after appreciating evidence placed before him, on

merits has specifically stated that the evidence led by the management

does not establish the period of gainful employment of respondent-

workman. Thus, this finding of the learned Industrial Adjudicator is based

on appreciation of evidence placed before him and it does not lead to

perversity.

12. It is apparent from the records that as per the petitioner-

management's pleadings, the respondent-workman was in the

employment of petitioner-management since 01.01.1984 and further, the

petitioner-management admits that the salary of the respondent-workman

for the month of June, 1989 was paid to him in presence of the Labour

Inspector on 10.07.1989.

13. The onus of closure of unit or industry lies on the petitioner-

management who would follow the principle of last come first go before

closing the industry. Reliance is placed on Harjinder Singh v. Punjab

State Warehousing Corporation, AIR 2010 SC 1116.

14. The contention of the learned counsel for the petitioner-

management, that as on date, the industry has been closed down and

therefore, the respondent-workman is not entitled to reinstatement is not

convincing. The closure of the industry was not the issue before the

Industrial Adjudicator. The petitioner-management for the first time is

raising this issue in the present Writ Petition. The judgment, i.e., Ramrao

and Others vs. All India Backward Class Bank Employees Welfare

Association and Others (Supra) relied upon the by the petitioner-

management is not applicable to the present case. Therefore any new

material placed before this Court under Articles 226 and 227 of the

Constitution of India would certainly not amount to closure of industry

without adjudicating the same before the Industrial Adjudicator. Reliance

is placed on judgment rendered by the Hon'ble Supreme Court in the case

titled as Raj Kumar Dixit vs. Vijay Kumar Gauri Shankar, 2015 (6)

SCALE 265.