Delhi High Court
Mount Carmel School vs The Presiding Officer, Labout Court ... on 12 May, 2011
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 12th May, 2011
+ W.P.(C) 6716/1999
% MOUNT CARMEL SCHOOL ..... Petitioner
Through: Mr. Mr. Ashwani Kumar Sakhuja
& Mr. Puneet Saini, Advocates
Versus
THE PRESIDING OFFICER, LABOUT COURT NO.X,
KARKARDOOMA COURT & ORS. ..... Respondents
Through: Ms. Monica Kapoor, Adv. for R-
4,6,13,17,19 & 20.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may No
be allowed to see the judgment?
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The writ petition was filed impugning the award dated 21 st January, 1999 of the Industrial Adjudicator holding that 19 out of the 22 workmen who had raised the dispute of which reference was made, were illegally terminated by the petitioner School and that the said 19 workmen had not W.P.(C)6716/1999 Page 1 of 15 abandoned their services as contended by the petitioner School and directing the petitioner School to reinstate the said 19 workmen together with 50% of the back wages. Though the petitioner School had contested the dispute before the Industrial Adjudicator, cross examined the witnesses of the workmen and also examined two of its own witnesses but thereafter when the matter was listed for remaining evidence of the petitioner School, stopped appearing before the Industrial Adjudicator and the award was accordingly made ex parte. The petitioner School thereafter applied to the Industrial Adjudicator for setting aside of the ex parte award. The said application was dismissed by the order dated 7 th September, 1999 of the Industrial Adjudicator which order is also impugned in this petition.
2. The petition came up first before this Court on 4 th November, 1999 when the counsel for the petitioner School stated that as far as the relief granted in the award of reinstatement was concerned, the petitioner School was not disputing reinstatement and had rather itself offered to the workmen to join back. In view of the said statement of the counsel for the petitioner School, notice of the petition was issued, limited to the award in W.P.(C)6716/1999 Page 2 of 15 so far as awarding 50% of back wages to the 19 workmen aforesaid. Operation of the said part of the award was stayed and remains stayed.
3. The counsel for the petitioner School today also in the hearing has contended that the challenge is only to the award in so far as of back wages to the extent to 50% for the period from the date of termination i.e. 11th October, 1989 and till the date of the award i.e. 21 st January, 1999. In this regard, it may also be noticed that it was the plea of nine of the respondent workmen on 7th January, 2003 before this Court that they had been going to the office of the petitioner School but were not being taken on duty. An agreement was arrived at before this Court that the said nine workmen shall report for duty to the petitioner School on the next date. The order dated 10th March, 2003 records that of the said nine workmen, only three were allowed to join duty; with respect to the other six, it was stated that they were employed as Drivers or Conductors and could not be taken back on duty without obtaining the valid Certificate from the Transport Department as per the directions of the Supreme Court. It was accordingly directed that the petitioner School would issue the necessary experience W.P.(C)6716/1999 Page 3 of 15 certificate to the said six Drivers / Conductors to enable them to obtain the Certificate from the Transport Department. Five other workmen also appeared before this Court on 10th March, 2003 and were without prejudice to the rights and contentions of the respective parties agreed to be taken back on duty. There are no further orders on the file relating to the said aspect. It was however informed that no application under Section 17B of the I.D. Act has been filed inspite of the writ petition having remained pending before this Court for the last over twelve years. It is contended that the said fact alone is indicative of all workmen being employed elsewhere.
4. As far as the challenge to the order refusing to set aside ex parte is concerned, since the petitioner School had already examined two witnesses and has not disclosed as to what other important relevant evidence remained to be led and even otherwise for the reason hereinafter appearing, there is no merit in the same. To be fair, the counsel for the petitioner has not addressed any arguments also on the said aspect.
W.P.(C)6716/1999 Page 4 of 15
5. As far as the 19 workmen whose claim has been allowed are concerned, it was not in dispute that they were the employees of the petitioner School. The petitioner School had admittedly not complied with the provisions of Section 25F of the Industrial Disputes Act, 1947. The defence of the petitioner School to the dispute was that the said employees had abandoned their employment. The Industrial Adjudicator has held that termination of service on any ground whatsoever required the provisions of Section 25F of the Act to be complied with, even if it be by way of abandonment. In this regard, I may notice that it is the consistent position in law as noticed in Anil Chuttani Vs. Oil and Natural Gas Corporation 2010 (117) DRJ 433, Hindustan Associates Engineer Pvt. Ltd. Vs. Sh. K.K. Aggarwal 2010 LLR 312 and in Shakuntala's Export House (P) Ltd. Vs. Secretary (Labour) MANU/DE/0541/2005 also that abandonment is also a misconduct and to be actionable requires an inquiry to be held. No error can thus be found in the award of the Industrial Adjudicator to the said extent.
W.P.(C)6716/1999 Page 5 of 15
6. The counsel for the petitioner has referred to Triloki Nath Vs. Sh. Dharam Paul Arora 2006 LLR 1043 where a Division Bench of this Court held that if a workman fails to resume duty even when offer is made before the Conciliation Officer as well as the Industrial Tribunal, it would be irresistibly presumed that he is no longer interested and has abandoned the job. However, in the present case, there is no unequivocal evidence of offer having been made before the Conciliation Officer or before the Industrial Adjudicator. The counsel for the petitioner also similarly relies upon Sonal Garments Vs. Trimbak Shankar Karve 2003 LLR 5 holding that reinstatement awarded, is liable to be set aside when the workman does not report for duty despite offer and that back wages will not be awarded when workman is not responding to the offer of the management to resume duties. In the present case, the finding of the Industrial Adjudicator is of the efforts of the petitioner School to make the workmen re-join being not sincere.
7. The counsel for the petitioner School has however urged that the occasion for holding an inquiry in the present case did not arise because the W.P.(C)6716/1999 Page 6 of 15 dispute was raised immediately after abandonment. I may in this regard notice that reference in the present case is dated 20 th November, 1990 i.e. after more than one year from the date of termination. The petitioner School thus had sufficient time to hold the inquiry. Even if it were to be believed that the workmen had approached the Labour Officer immediately after termination / abandonment, nothing prevented the petitioner School from taking a stand that they were holding an inquiry and thus the approach to the Labour Commissioner was pre mature. The said plea cannot be accepted.
8. The counsel for the petitioner has next contended that the petitioner School was always willing to take back the workmen and rather it was the workmen who had gone on a lightening strike and were holding the petitioner School to ransom. It is urged that for this reason also, the occasion for holding the inquiry did not arise. I am unable to accept the said contention also. The very fact that the reference as to whether the termination was illegal or the workmen had abandoned came to be made after about one year of the incident res ipsa loquitur shows that there was W.P.(C)6716/1999 Page 7 of 15 no such offer by the petitioner School at the contemporaneous time. Had such an offer been there, the occasion for reference again would not have arisen. Had the petitioner School taken back the workmen, the proceedings would have come to an end even before the Industrial Adjudicator. The Industrial Adjudicator also in the award has recorded, on the basis of the material on record, that the workmen had been taking all steps to get their job but the petitioner School was not inclined to take them back on duty and that the petitioner School did not make any sincere efforts to take the workmen on duty. It was further recorded that though the workmen were taken on duty on 11th February, 1990 they were not assigned any work and were again terminated and which resulted in failure of the conciliation proceedings and reference of the dispute.
9. Moreover, it may be noticed at this stage that since notice of the petition limited to the award so far as back wages is concerned was issued and reinstatement was not even challenged, the award in so far as granting the said relief is final, even though appears to have become infructuous W.P.(C)6716/1999 Page 8 of 15 since none of the workmen in the last over 12 years since the award have chosen to implement the same.
10. In so far as the challenge to the award for 50% of the back wages is concerned, the argument of the counsel for the petitioner School is that back wages could not have been awarded automatically without even an inquiry or a finding of the workmen having remained unemployed during the pendency of the proceedings before the Industrial Adjudicator. It is rather contended that it was neither the plea of the workmen nor did they prove so. It is further contended that though affidavits by way of evidence were filed by all the nineteen workmen but only nine tendered themselves for cross examination. It is stated that the said nine workmen who tendered themselves for cross examination also did not depose that they were unemployed during the pendency of the proceedings. It is yet further contended that even before this Court, though the workmen had appeared initially but have now not been appearing for long. The counsel only for the respondents No.4 (as per amended memo of parties filed on 23rd February, 2001) Ashwini Kumar, No.6 Ram Kumar (described in the W.P.(C)6716/1999 Page 9 of 15 memo as Raj Kumar), No.13 Sukhdev Singh, No.17 Suresh Kumar, No.19 Shambhu and No.20 Jaya Singh (wrongly described as Jaga Singh) has appeared. It is yet further contended that the fact that they have not applied under Section 17B of the I.D. Act also is indicative of their having remained employed throughout. Attention is invited to the affidavits by way evidence filed by the 19 workmen which do not contain any statement of being unemployed.
11. The counsel for the petitioner has also referred to:
(i) Novartis India Ltd. Vs. State of West Bengal 2009 LLR 113 holding that for entitlement to back wages, the burden of proof that he remained unemployed would be on the workman; besides other factors, conduct of the concerned workman also plays a vital role.
(ii) U.P. State Brassware Corporation Ltd. Vs. Udai Narain Pandey 2006 LLR 214 where also the Supreme Court held that where the workman did not plead that after his purported W.P.(C)6716/1999 Page 10 of 15 retrenchment, he was wholly unemployed, back wages were limited to 25% only.
(iii) Allahabad Jal Sansthan Vs. Daya Shankar Rai (2005) 5 SCC 124 laying down that for the grant of full back wages, it is necessary for the workman to plead and prove that he had been sitting idle or had not obtained any other employment in the interregnum and in the absence of any plea or evidence restricting the relief of back wages to 50% only.
(iv) Thankur Singh Rawat Vs. Jagjit Industries Ltd. 2006 LLR 18 where a Division Bench of this Court has held that there is a discretion in grant of back wages by the Court and that the initial duty is of the workman to plead and prove that he will be unemployed and it will then be for the management to assert and prove if workman was at all employed and upon default by the workmen in taking such plea they could be denied back wages.
W.P.(C)6716/1999 Page 11 of 15
12. The counsel for the petitioner School has also contended that the petitioner School having offered employment to the workmen and the workmen having not opted to join, also disentitles the workmen to any back wages. Attention in this regard is also invited to the documents on the paper book where the workmen have admitted that they were asked by the petitioner School to join back but subject to rendering an apology or giving an undertaking of good conduct in future. Reliance is placed on:
(i) Bharat Petroleum Corporation Ltd. Vs. Workmen Employed in the Refinery Division of Bharat Petroleum Corporation Ltd. 2001 LLR 26 holding the condition imposed by the employer in that case of the workmen giving such undertaking as a condition to being allowed to work to be not illegal unjustified or improper.
(ii) Glaxo Laboratories Employees Union Vs. Glaxo India Ltd.
1996 LLR 885 also holding that insistence upon such an undertaking could not be described as change in condition of service within the meaning of Section 9A of the Industrial Disputes Act, 1947.
W.P.(C)6716/1999 Page 12 of 15
(iii) Ajay Enterprises Ltd. Vs. Secretary (Labour) Govt. of NCT of Delhi 2007 LLR 86 where this Court also held that if employees create hindrance, no fault can be found with the employer in asking for undertaking and on refusal to give undertaking, refusing to take back such employees.
13. It is not as if the Industrial Adjudicator has not considered the aforesaid aspect. The award notices the same but returns a finding of the efforts made by the petitioner School to take back the workmen to be not sincere. As observed aforesaid, the very fact of reference having been made, industrial dispute having remained pending for 10 years, this writ petition having been preferred impugning the award of reinstatement, only at the stage of admission, the challenge to reinstatement being given up and the disputes which arose as to the workmen joining back even during the pendency of the present petition, all are supportive of the factual finding aforesaid of the Industrial Adjudicator. An employer willing to take back the workman would not allow the industrial dispute at least before the Industrial Adjudicator to go on and insist upon the Industrial Adjudicator W.P.(C)6716/1999 Page 13 of 15 ensuring such joining back or at least returning a finding thereon. I am therefore not inclined to accept the said plea.
14. However, merit is found in the plea aforesaid of the counsel for the petitioner School of the respondent workmen having neither pleaded nor proved that they were unemployed. I have perused the statement of claim as well as the affidavits by way of evidence; no such plea is found therein. As noticed above, all the 19 workmen did not even tender their affidavits in examination or offered themselves for cross examination. Before this Court also they go unrepresented. The Courts in the judgment aforesaid have noticed that there can be no formula as to the back wages and a pragmatic approach considering all the facts and circumstances is to be taken.
15. Having considered the matter and for the reasons:
(i) that the petitioner is a School engaged in education of children;
W.P.(C)6716/1999 Page 14 of 15
(ii) that 12 years from the date of the award have passed.
(iii) that most of the workmen have not opted to even appear before this Court.
(iv) that no application under Section 17B having been filed.
(v) that there being no plea till date of the employment of the workmen.
(vi) that Mediation attempted several times being unsuccessful.
it is deemed expedient that the award impugned in this petition be modified by ordering that the petitioner School pays to the appearing respondents as noticed hereinabove a sum of `40,000/- each within four weeks of today failing which the same shall also incur interest at the rate of 10% per annum.
The petition is disposed of. Costs of litigation have already been paid.
RAJIV SAHAI ENDLAW (JUDGE) MAY 12, 2011 'gsr' W.P.(C)6716/1999 Page 15 of 15