Delhi High Court
M/S Fairdeal Industries vs Sunil Kumar Mishra on 28 September, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 28.09.2015
+W.P.(C) 5271/2013
M/S FAIRDEAL INDUSTRIES
..... Petitioner
Through: Mr K.C. Dubey, Adv.
versus
SUNIL KUMAR MISHRA
..... Respondent
Through: Mr Sanjeev Kumar, Adv.
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA
JUDGMENT
: SUNITA GUPTA, J. (ORAL)
1. This writ petition under Articles 226 and 227 of the Constitution of India moved
by petitioner challenges the award dated 07.07.2012 passed by the learned Presiding
Officer, Labour Court, Karkardooma Courts, Delhi in DID No.253/2010.
2. The respondent - workman filed a claim petition against the petitioner -
management inter alia on the allegation that he worked with the petitioner - management
since 1998 as an operator and was getting Rs.18,500/- per month. However, in the month
of March, 2008 he was threatened to resign from service by force and was asked not to
report for duty with effect from 01.04.2008. The workman requested the petitioner -
management to allow him to join duties, but his services were illegally terminated on
31.03.2008 without giving any charge-sheet and without holding any enquiry. The
petitioner - management also did not pay any wages from 01.02.2008 to 31.03.2008
amounting to Rs.37,000/- and PF amounting to Rs.58,000/- approximately. A demand
notice dated 20.02.2009 was also served upon the management but the management
failed to fulfil the demands of the workman. As such he claimed reinstatement in service
with full back-wages.
3. The claim of the workman was contested by the management inter alia on the
allegations that the workman was never terminated by the management and he himself
resigned from the management in February, 2008 and did not join duties. It was not
denied by the management that the workman was in the employment of the management
on the post of operator since 1998 but it was denied that his salary was Rs.18,500/- per
month. It is alleged that the last drawn wages of the workman was Rs.5400/- per month.
The management is ready to pay the legal dues to the workman amounting to Rs.36,273/.
No notice of demand was served upon the management. All of a sudden, a legal notice
dated 20.02.2009 was received levelling baseless allegations.
4. Both the parties adduced their respective evidence. By the impugned award dated
07.07.2012, the Labour Court directed reinstatement of the workman at the same post
with continuity of service. He was also awarded 25% of back-wages, which were to be
paid within three (3) months failing which the workman was entitled to recover the
compensation amount with interest @ 9% per annum from the date of the award. This
award has been challenged by the petitioner - management.
5. The basic grievance of the petitioner - management is that the salary of the
workman was Rs.5400/- per month and not Rs.18,500/- per month as alleged by the
workman for which he had not placed on record any document. The workman initiated
recovery proceedings of his dues against the management @ Rs.18,500/- per month.
During the course of arguments, learned counsel for the respondent - workman also
submits that although 25% back-wages have been awarded in favour of the workman
and, therefore, the workman has initiated execution proceedings for recovery of this
amount @ Rs.18,500/- per month which is refuted by the management. A perusal of the
impugned award goes to show that the Labour Court has not gone into the aspect as to
what was the exact salary of the workman as there is no finding in this regard. Even
while awarding 25% of the back-wages, it does not spell out as to on what rate the
workman is entitled to get 25% of back-wages. Under the circumstances, since the
controversy regarding the exact salary of the workman still remains as such the matter is
required to be remanded back to the learned Labour Court for giving a specific finding on
this aspect.
6. Learned counsel for the petitioner further submits that in the written statement
itself the management had taken the plea that the workman had not adopted due process
as enshrined under Industrial Disputes Act, 1947 by approaching the Labour
Commissioner or Labour Inspector against illegal termination by the management and
straightway approached the Labour Court. No notice of demand was served upon the
management, as such, the claim of the workman was not maintainable. Even no issue in
regard to this aspect of the matter was framed by the Labour Court.
7. During the course of arguments, learned counsel for the petitioner - management
submits that earlier an offer was given to the respondent - workman to join the
management as operator on which he was appointed, however, the workman had declined
the offer. It is further submitted by counsel for the petitioner - management that without
prejudice to rights and contentions of the petitioner - management, the management is
ready to take back the workman on duty as operator at a salary of prevailing rate of
minimum wages for unskilled workmen which is Rs.10,010/-. However, the workman,
who is present in person in the Court today, submits that he is not ready to join the
management on the wages as offered by counsel for the petitioner - management as his
salary was Rs.18,500/- per month.
8. Keeping in view all the facts and circumstances, the award dated 07.07.2012 is set
aside and the matter is remanded back to the concerned Labour Court for framing a
specific issue in regard to maintainability of the claim of the workman and specific
finding be also given regarding the exact salary of the workman. The parties be afforded
opportunity to lead evidence. It is impressed upon the Labour Court to decide the matter
afresh as expeditiously as possible.
LCR be sent back forthwith alongwith a copy of this order.
The parties are directed to appear before the concerned Labour Court on
19.10.2015.
The petition stands disposed of accordingly.
(SUNITA GUPTA)
JUDGE
SEPTEMBER 28 2015/rd
