Delhi High Court
M/S Design Decisions Inc Thr.Anil ... vs Yogesh Arora on 19 August, 2019
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision : 19.08.2019
+ LPA 22/2019
M/S DESIGN DECISIONS INC THR.ANIL KUMAR
..... Appellant
Through: Mr. Rajat Arora and Mr. Niraj Kumar,
Advocates
versus
YOGESH ARORA
..... Respondent
Through: Mr. Satish Kumar Tripathi, Advocate
with respondent in person.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE JYOTI SINGH
JUDGMENT
G.S. SISTANI, J. (Oral)
1. Typographical error in the order dated 22.07.2019, wherein the
date has been wrongly mentioned as 09.08.2019 is corrected and shall
be read as 19.08.2019.
2. The present appeal is directed against the order dated
03.10.2018, by which the appellant had challenged the Award dated
09.10.2017, passed by the learned Labour Court. Challenge is also laid
to an order dated 05.12.2018 passed in the Review Petition filed by the
appellant herein.
3. The respondent was employed with the appellant as an Assistant
architect since the year 1988. The consistent stand of the appellant has
been that the appellant did not dismiss the respondent but it is the
respondent, who had abandoned his job since August 2011.
4. An industrial dispute was raised by the respondent before the
Labour Court in the year 2014. Thereafter, the appropriate
Government, in the year 2015, referred the matter for adjudication
before the Labour Court. An Award was passed on 09.10.2017 by the
learned Labour Court in favour of the respondent workman for
reinstatement with 75% back wages.
5. The Award was challenged by filing a writ petition in the month
of September 2018. The learned Single Judge, while deciding the writ
petition vide order dated 03.10.2018, has modified the Award to the
extent that the quantum of back wages granted by the Labour Court
was reduced from 75% to 50%. Thereafter, a review petition was also
filed, which was dismissed vide order dated 05.12.2018.
6. Mr. Arora, learned counsel appearing for the appellant has
labored hard to contend that the Labour Court as also the learned
Single Judge have failed to take into account the fact that the
respondent had abandoned his services. It is, thus, contended that the
respondent would not be entitled either to back wages or for
reinstatement. Elaborating his argument further, Mr. Arora has drawn
the attention of the Court to a document, placed on record, which
clearly establishes that the respondent was gainfully employed
throughout the period between 2011 till date, as an LIC Agent. The
attention of the court is drawn to the column, which shows the
commission received by the respondent. It is on the basis of this
submission that learned counsel for the appellant contends that this is
not a case where the respondent would be entitled to any back wages.
7. Learned counsel for the appellant has also submitted that the
factum of the respondent having been employed as an Insurance Agent
has not been disputed. Reliance is placed on the affidavit of evidence
filed by the appellant herein to contend that the respondent had
himself stopped reporting for work after August 2011. It is further
contended that even at the stage when the appellant had offered
reinstatement, the respondent has not been cooperating and has not
attended to his duties, although he did join for a period of one and half
months.
8. Mr. Tripathi, learned counsel appearing for the respondent
submits that there is no infirmity or illegality in the order passed by
the learned Labour Court or the learned Single Judge. He submits that
it not in dispute that the respondent was engaged by the appellant and
he continued to work till August 2011, after which he was dismissed,
without holding any inquiry.
9. We have heard learned counsels for the parties and examined
the Award as well as the order passed by the learned Labour Court and
the learned Single Judge respectively.
10. We are of the view that the learned Single Judge has correctly
noted that while the appellant herein had pleaded that the respondent
had abandoned the work and was not terminated, the management had
not held any inquiry to prove the abandonment. Learned Single Judge
has rightly relied on the decision rendered by the Apex Court in the
case of M/S. Scooters India Ltd vs. M. Mohammad Yaqub & Anr,
(2001) 1 SCC 61, wherein the Apex court while dealing with the case
of abandonment had held that an enquiry must be held to prove the
abandonment of employment before the services are terminated on
this ground. In the absence thereof, we find that there is no illegality
or infirmity in the order so passed. As far as the submission made with
regard to the respondent working as an LIC Agent is concerned, the
learned Single Judge has taken the same into consideration keeping in
view the earnings of the respondent and given benefit to the appellant
herein by reducing the back wages from 75% to 50%.
11. It is settled law that while entertaining a writ petition or an
appeal against the Award of an Industrial Tribunal or the Labour
Court, the Court must examine as to whether there is any perversity,
ex facie, or the view taken by the Tribunal is of such a nature which
would completely shock the conscious of the Court. No interference is
required in case a different or distinct view is possible. Taking into
consideration the fact that no inquiry was held to prove the alleged
abandonment, the learned Single Judge has correctly applied the law
to the facts of the case. We find no grounds to interfere in the order
passed by learned Single Judge. The appeal is accordingly dismissed.
12. The amount deposited in this Court shall be released in favour
of the respondent. The interest accrued on the amount already
deposited, be also paid to the respondent, in accordance with the order
of the learned Single Judge, in addition to any other amounts that may
be due to the respondent at this stage.
G.S.SISTANI, J
JYOTI SINGH, J
AUGUST 19, 2019
pkb
