Delhi District Court
Between The vs The on 4 October, 2021
IN THE COURT OF SH. RAMESH KUMAR-II,
PRESIDING OFFICER LABOUR COURT-06, ROUSE
AVENUE DISTRICT COURT, D.D.U. MARG, NEW DELHI
LIR No. 5851/2016 (new), 387/14 (old)
Date of institution 31.10.2014
Date of transfer of present case 27.05.2019
to this court
Date of Award 04.10.2021
BETWEEN THE WORKMAN
Sh. Shrawan Kumar S/o Sh. Sultan Singh, R/o Village: Sarai
Allawardi, P.O. Palam Vihar, Distt. Gurgaon.
AND
THE MANAGEMENT OF
M/s Press Trust of India Ltd., 4 Parliament Street, New
Delhi-01.
AWARD
1 By this award I shall dispose off the reference sent by the
Dy. Labour Commissioner, Labour Department (New Delhi
District), Government of NCT of Delhi arising out between the
parties named above to labour court vide Notification No. F.No.
C-137/ALC/NDD/2014/48/246 dated 21.07.2014 with the
following terms of reference:-
"Whether the workman Sh. Shrawan
Kumar S/o Sh. Sultan Singh is absenting
from his duty on his own or his services
have been terminated illegally and /or
unjustifiably by the management; if so, to
what relief is he entitled and what
directions are necessary in this respect?"
2 After the receipt of the reference, notice was issued to the
workman with directions to file statement of claim which has
Digitally
signed by
RAMESH
RAMESH KUMAR
LIR No. 5851/16 (new), 387/14 (old) KUMAR Date: 1
2021.10.04
16:47:10
+0530
been filed by him stating therein that he was appointed by the
respondent/management at their establishment on 01.09.1987 as
Attender and later on he was promoted as Operator and his last drawn gross wages were Rs.3004.80/-. It is further stated that during his tenure as the employee, he has worked diligently, honestly and there was no complaint against him and he was also given promotion due to his caliber and hard work. It is further stated that the workman continued to perform his duties till 29.01.1993 and thereafter having been implicated in a false case under section 498 A and 304 B IPC and he was arrested by the police on 29.01.1993 and remained in custody till 15.06.1995, due to which he could not attend his duties and an intimation was also sent to the management in this regard. It is further stated that after his released from the court, he had reported for duty but the management kept on telling him to come subsequently. However, he gave joining report on 07.08.1995 and the management then informed him that he would be called to join the duties but no intimation was received. It is further stated that the management somehow on continuous insistence and reporting for duty by the workman every day did not take him on job and had also not paid him any wages after 29.01.1993. It is further stated that the management without giving him any show cause notice or without conducting any enquiry and even without referring to any service rule duly certified or applicable or any terms and conditions having been earlier accepted by the workman, illegally terminated his services w.e.f. 30.10.1995, giving totally incorrect reasons. However, Ld. District and Sessions Judge, Gurgaon vide order dated 15.06.1995 acquitted the workman on Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 2 KUMAR Date:
2021.10.04 16:47:20 +0530 the charges of 304 B IPC and gave a punishment of simple imprisonment for the offence u/s 498 A IPC and the same having been undergone he was released by the Ld. Session judge. It is further stated that an appeal against the said order was also filed by the workman, which was admitted and the intimation of the same was also made available to the management but the management had illegally terminated his services. Later on the workman was acquitted of the charges by the Hon'ble High Court of Punjab and Haryana, Chandigarh in criminal appeal no. 358 of 1995. It is further stated that the workman being aggrieved of the illegal termination by the management had challenged his termination before the Hon'ble High Court of Delhi vide WPC No. 1612 of 1996, which has been disposed off by the Hon'ble Mr. Justice Balmiki J. Mehta vide order dated 20.05.2013 holding that the management is not a state u/s 12 of the Constitution of India and the workman was directed to approach the appropriate Forum and therefore, the petition was allowed to be withdrawn and he was granted the liberty to file appropriate independent proceedings in a competent Forum/Court for claiming the relief which has been claimed in the petition. It is further stated that there is no delay or unnecessary delay in raising the dispute by sending the demand notice dated 28.09.2013 and thereafter raising the industrial dispute, filing of the statement of claim before the Govt. of NCT of Delhi and/or to claim the relief of reinstatement, back wages and all other consequential reliefs in the proceedings u/s 12 of the Industrial Disputes Act, thereby challenging that the termination of the services of the workman is illegal, arbitrary, contrary to the Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 3 KUMAR Date:
2021.10.04 16:47:27 +0530 principle of natural justice and in violation of the provision of Chapter V-A of the Industrial Disputes Act, 1947. It is further stated that the action of the management is illegal, termination is not only ultra vires to the constitution, violative of Article 14, 16 and 19 of the Constitution but is also in violation of Section 25 F of the Industrial Disputes Act, 1947 and other provisions contained in the Industrial Disputes Act, 1947. It is further stated that the termination letter dated 30.10.1995 is totally illegal, arbitrary and self-contradictory as the management on one hand is admitting that the claimant was sent to jail and had remained in the custody/imprisonment in the criminal case involving death of his wife and on the other hand had terminated his services on account of continuous absence. It is further stated that the workman was never given an opportunity to be heard, no notice was sent or served upon him prior to the alleged termination letter and even the ground of absenteeism is a misconduct, for which show cause notice or appropriate proceedings should have been initiated and therefore, the action of the management in terminating the services is on account of stigma imposed upon him by the management with respect to the death of his wife, criminal case and the misconduct of absenteeism for which no sufficient opportunity to explain the circumstances was given to him and thus the action is violative of the principle of natural justice and also unfair in all means. It is further stated that the workman after receiving the orders of the Hon'ble High Court of Delhi had issued a demand notice dt. 28.09.2013 to the management through speed post and also at the Head Office at Mumbai, but despite the receipt of the same the management had Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 4 KUMAR Date:
2021.10.04 16:47:34 +0530 deliberately and intentionally did not acknowledge or respond the said notice till the dispute was raised before the Conciliation Officer. However, during the pendency of the same a reply has been received vide letter dt. 17.10.2013 by the management. It is further stated that the proceeding were undertaken by the Conciliation Officer, Govt. of NCT of Delhi, New Delhi and on account of the arrogant attitude of the management the proceedings were delayed and resulted into no conciliation thereby the reference has been made to this court for adjudication of the dispute and therefore, the present proceedings are being initiated. It is further stated that the workman had remained unemployed during the entire period from the date of his illegal termination and has not been even paid wages after 29.01.1995 and he is financially put to great hardship, therefore, in these circumstances, it is prayed that this court may be please to pass an order of granting the relief of reinstatement, full back wages, promotions, all consequential benefits and reliefs from the date of illegal termination of services of the workman by the management, holding that the termination is illegal, arbitrary and therefore, be struck down, by passing an appropriate award. 3 The management has contested the present case and filed its written statement thereby taking various preliminary objections that the present statement of claim is barred by limitation and delay as the claimant has preferred the present claim after around 19 years of his termination of employment dt.
30.10.1995 and as such the present claim is not maintainable and liable to be dismissed on this ground alone. That the claimant herein had been unauthorizedly absenting from the duty without Digitally signed by RAMESH RAMESH KUMAR LIR No. 5851/16 (new), 387/14 (old) KUMAR Date: 5 2021.10.04 16:47:45 +0530 leave for more than two and half years amounting to grave and serious misconduct which hampered the day to day working of the management. That the claimant was awarded the punishment of termination from service by the management for such grave and serious misconduct of unauthorized absence, conviction for a crime involving moral turpitude and thus total loss of confidence. That there is no espousal in the present case as required under the law by a substantial number of employees for raising the present Industrial Dispute and the dispute which has been raised by the claimant against the answering management, therefore, has not been validly espoused and hence, cannot be termed as an "Industrial Dispute" as defined under section 2 (k) of the Industrial Disputes Act, 1947 and hence in absence of the same, the whole statement of claim filed by the claimant against the management is liable to be rejected on this ground alone. That the factum of unauthorized absence from work without permission has been duly admitted by the claimant and the statement of claim deserves to be dismissed on this ground alone and the management reserves its right to prove the misconduct of the claimant before this court. On merits, it is submitted that the reference made by the Dy. Labour Commissioner, Govt. of NCT of Delhi, New Delhi is without application of mind and even without considering the factual position in the matter and therefore, the terms of reference made by the Dy. Labour Commissioner with regard to the claimant concerned and the resultant proceeding thereof is wholly misconceived, ill-conceived, bad in law and untenable. Therefore, the terms of reference are liable to be quashed and the management reserves Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 6 KUMAR Date:
2021.10.04 16:47:53 +0530 its right to challenge the same in appropriate proceedings. It is denied that the claimant had worked diligently, honestly and there was no complaint against his act of conduct or that he was give a promotion due to his caliber and hard work. The contents of para 4 of the statement of claim to the extent of incarceration of the claimant under a criminal case are stated to be a matter of record but same were never brought to the knowledge of the management by the claimant during the period of his unauthorized absence. It is also denied that any intimation was sent by the claimant to the management. It is submitted that no such intimation was ever received by the management from the claimant side as vaguely alleged in para under reply and it was only through the communication sent by the claimant dt. 07.08.1995 that the management came to know about the case against the claimant. It is further submitted that the claimant, prior to the letter dt. 07.08.1995 was unauthorizedly absent from his duties without any intimation to the management and even by his own admission, which is denied for want of knowledge, the claimant was in custody till 15.06.1995 and only communicated to the management after around 50 days of his release vide communication dt. 07.08.1995. It is also denied that after his release from court he had reported for duty and the management kept on telling him to come subsequently. It is also denied that the management informed the claimant that he would be called to join the duties or that any payment towards wages after 29.01.1993 is payable to him as he was unauthorizedly absenting from duties. It is further submitted that the acquittal of the claimant by the criminal court has no bearing as far as his Digitally signed by RAMESH RAMESH KUMAR LIR No. 5851/16 (new), 387/14 (old) 7 KUMAR Date:
2021.10.04 16:47:59 +0530 termination from the employment of the management is concerned as the claimant was terminated for the misconduct of unauthorized absence, conviction for a crime involving moral turpitude and thus total loss of confidence by the management in the claimant. Therefore, the action taken by the management is legal, valid and justified in all respect. It is further submitted that it is settled law that acquittal in criminal case does not automatically absolve the claimant from the charges of misconduct in any proceedings under Industrial or Civil Laws. It is further submitted that the management has duly replied to the illegal demand notice dt. 28.09.2013 sent by the claimant by its reply dt. 17.10.2013 and during the course of conciliation proceedings the management had appeared and also filed its detaied reply. All other averments of the statement of claim are denied word by word and ultimately it is prayed that the statement of claim of the workman be dismissed against the management.
4 The workman thereafter filed rejoinder wherein he denied all the averments of the written statement and reiterated and reaffirmed the facts of the statement of claim as correct and it is prayed that an award may kindly be passed in favour of the workman in terms of the prayer made by him in the statement of claim.
5 After completion of the pleadings of both the parties, the following issues were framed vide order dated 02.09.2015:-
1 Whether the claim of the workman is misconceived and is not maintainable as alleged by the management? OPM Digitally signed by RAMESH RAMESH KUMAR LIR No. 5851/16 (new), 387/14 (old) KUMAR Date: 8 2021.10.04 16:48:06 +0530 2 Whether the claim of the workman is bad on account of delay and latches as per the management as the same has been filed after about 19 years of termination of the employment of the workman i.e. 30.10.1995, if so, its effect? OPM 3 Whether the workman/claimant has been unauthorizedly absented from his duty without any leave for more than two and half years and is guilty of serious misconduct as alleged by the management in paragraph no.3 of the preliminary objection of the written statement, if so, its effect? OPM 4 Whether there is no espousal in the present claim by the substantial number of employees of the management as required under Section 2 (k) of the I.D. Act, if so, its effect? OPM 5 Whether the workman absented himself from his duty and thereby abandoned his job of his own or his services has been terminated by the management? OPW 6 As per terms of reference.
7 Whether the workmen is entitled to the relief claimed in the statement of claim? OPW 8 Relief.
6 After framing up of the issues, the matter was fixed for workman's evidence. The workman examined himself as WW-1 in support of his case and relied upon documents i.e. copy of Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 9 KUMAR Date:
2021.10.04 16:48:16 +0530 appointment letter is Ex.WW1/1; joining report dated 07.08.1995 is Ex.WW1/2; termination letter is Ex.WW1/3; copy of order of Hon'ble High Court of Punjab and Haryana, Chandigarh vide which the workman was acquitted of the charges in criminal appeal no 358 of 1995 is Ex.WW1/4; copy of order of Hon'ble High Court of Delhi, dated 20.05.2013 in WP (C) No. 1612 of 1996 is Ex.WW1/5; copy of demand notice dated 28.09.2013 is Ex.WW1/6; copy of reply of the management dated 17.10.2013 is Ex.WW1/7; copy of statement of claim filed before Conciliation Officer is Ex.WW1/8; certificate issued by the management dated 27.04.1993 which was obtained from the court of Additional Sessions Judge, Gurgaon is Ex.WW1/9 and copy of cutting of news-paper "Jansatta" dated 01.02.1993 is Ex.WW1/10. On the other hand, the management examined one witness i.e. Sh. M.R. Mishra, its Chief Administrative Officer, as MW1 and relied its evidence on documents i.e. copy of letter dated 13.09.1993 is Ex.MW1/1; copy of letter dated 24.09.1994 is Ex.MW1/2; copy of letter dated 30.10.1995 is Ex.MW1/3; copy of letter dated 19.12.1995 is Ex.MW1/4; copy of letter dated 20.12.1995 is Ex.MW1/5, copy of document dated 20.12.1995 is marked as Mark-A; copy of letter dated 18.03.1996 is Ex.MW1/6 (objected to for want of original) and copy of letter dated 18.03.1996 is marked as Mark-B. Thereafter, matter was fixed for final arguments.
7 Ld. Authorized Representative for workman (for short 'Ld. AR for workman) has filed written arguments in support of his contentions.
8 On the other hand, Ld. Authorized Representative for Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 10 KUMAR Date:
2021.10.04 16:48:24 +0530 management (for short 'Ld. AR for management) has also filed written arguments in support of his contentions. 9 I have perused the written arguments as filed by Ld. AR for both parties.
10 I have also perused the record. On perusal of record, my issue-wise findings are as follows:-ISSUE NO.1 & 2
11 The onus to prove these issues was upon the management and the management was required to prove that the claim of the workman is misconceived and is not maintainable and also that his claim is bad on account of delay and latches as per the management as the same has been filed after about 19 years of termination of the employment of the workman i.e. 30.10.1995. 12 The workman in his cross examination admitted that he has filed a dispute regarding his termination before the Labour Department after 19 years, but he volunteered that for his quashing of termination he has filed a writ petition before the Hon'ble High Court of Delhi but he cannot tell the date when he has filed the same before the Hon'ble High Court of Delhi. He further admitted as correct that no order has been passed by the Hon'ble High Court of Delhi for condoning his delay for raising Industrial Dispute before the appropriate authority. He further volunteered that the liberty has been given by the Hon'ble High Court of Delhi to withdraw his writ petition and to file before appropriate forum on his request vide order dated 20.05.2013. 13 MW1 also admitted in his cross examination that the workman had earlier challenged his termination by way of filing writ petition before the Hon'ble High Court and the said petition Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 11 KUMAR Date:
2021.10.04 16:48:31 +0530 was disposed of by the Hon'ble High Court with the direction to the workman to approach the proper forum. 14 In written arguments, Ld.AR for management stated that the present statement of claim has been filed by the claimant after a period of around 19 years and is barred by latches and limitation and his employment was terminated w.e.f 30.01.1995 and intimation for termination was duly communicated to him vide letter dated 30.10.1995 after the management had received a communication dated 07.08.1995 from the claimant. Ld.AR for management further stated that filing and pursuing claim before a Forum or Court without jurisdiction does not extent the period of limitation and is further not a sufficient cause and the Hon'ble High Court of Delhi in its order dated 20.05.2013 has only allowed the claimant to withdraw the writ petition with liberty to file appropriate independent proceedings in a competent Forum and has not passed any order regarding condonation of delay on the part of the claimant in filing the present claim on the ground that he was pursuing his claim before a Forum without jurisdiction. Ld. AR for management further stated that writ petition filed by the claimant being W.P. (C) 1612/1996 was dismissed by the Hon'ble High Court of Delhi on 20.05.2013 and the claimant subsequent to dismissal of the said writ petition had approached the Industrial Adjudicator on 06.11.2013 which is around 166 days after the dismissal of the said writ petition and even the notice dated 28.09.2013 sent by the claimant after the dismissal of writ petition was after around 130 days. 15 In support of his contention, Ld. AR for management has relied upon the judgment of Hon'ble High Court of Punjab & Digitally signed by RAMESH RAMESH KUMAR LIR No. 5851/16 (new), 387/14 (old) KUMAR Date: 12 2021.10.04 16:48:40 +0530 Haryana in case titled as "State of Punjab vs Sh. Kali Dass And Anr." decided on 27 November 1996, where it was held that:
"3. After hearing learned counsel for the parties, we are of the view that there is merit in the submission of the learned counsel for the petitioner. No doubt there is no limitation provided under the Industrial Disputes Act to raise an industrial dispute but can it be said that it can be raised at any time and that too without any application. Is a workman at a better footing or at a higher pedestal than a civil servant or an employee of any other organisation? If the services of an employee of the latter category are dispensed with they are required to challenge the same in the Civil Court within a period of three years. Even for writ petition the Supreme court has observed that three years is a reasonable period within which the aggrieved party must approach to challenge termination as that is the period for filing a civil suit. According to us, the workman cannot be allowed to approach the Labour Court after more than three years of the termination of service. We find support from the authorities relied upon by the learned counsel for the petitioner. Learned counsel for the respondent workman also cited Prem Singh V. Labour Commissioner, Punjab, (1994-1)106 P.L.R. 354 ; Management of Haryana Development Authority Vs. Miss. Neelam Kumari and Anr., 1993 (5) Services Law Reporter 134; Mani Ram V. The Presiding Officer, Labour Court, Ambala and Ors., (1996-2) 113 P.L.R. 39 and Punjab Agro Industries Corporation Ltd. Vs. Presiding Officer, Labour Court, U.T. Chandigarh, 1993 (2) Service Cases Today 169. From these authorities, we find that not only that the moot point as raised in the authorities relied upon by the counsel for the respondent-
workman was in issue but those were decided on the peculiar facts of those cases. There is a detailed discussion on the point in issue in all the authorities referred to by the learned counsel for the petitioner with which we are in respectful agreement. The respondent-workman in the present case has chosen not to raise his little finger for a period of more than 7-1/2 years when he thought of just issue a demand notice. For such a long time, the petitioner- management is even not supposed to keep all the record concerning its workmen. It becomes really difficult to defend such a case. The suit, if it had to Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 13 KUMAR Date:
2021.10.04 16:48:47 +0530 be filed by the workman before a civil Court, would have been hopelessly time-barred. Under the circumstances, we are of the view that the respondent-workman was not entitled to any relief from the Labour Court on the ground of delay. The management has been unnecessarily burdened with the reinstatement of the workman and also the back wages from the year 1991."
16 Ld. AR for management further relied upon the judgment of Hon'ble Supreme Court of India in case titled as Krishi Utpadan Mandi Samity Vs Pahal Singh, decided on 10 April, 2007, wherein it was held that:
"11. The Labour Court was also under an obligation to consider as to whether any relief, if at all could be granted in favour of the workman in view of the fact that the industrial dispute had been raised after 18 years. It was obligatory on the part of the Labour Court to consider that the respondent was in employment for very short period. It had also not arrived at a finding that the respondent was in continuous service within the meaning of Section 2
(g) of the U.P. Industrial Disputes Act or for that matter in terminating the services of the respondent, the appellant did not comply with the requirements of law particularly Section 6-N thereof. In absence of such a finding, the High Court in our opinion should have interfered with the Award.
12. It is now well-settled principle of law that "delay defeats equity"
13. The Labour Court exercises its wide jurisdiction under Section 11 A of the Industrial Disputes Act, but such jurisdiction must be exercised judiciously. A relief of reinstatement with all back wages is not to be given without considering the relevant factors therefor, only because it would be lawful to do so. As noticed herein before, in this case, even the basic requirements for grant of any relief had not been found by the Labour Court.
14. In Haryana State Co-operative Land Development Bank v Neelam [(2005) 5 SCC 91] this Court opined:-
"18. It is trite that the courts and tribunals having plenary jurisdiction have discretionary power to grant an appropriate relief to the parties.
Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 14 KUMAR Date:
2021.10.04 16:48:54 +0530 The aim and object of the Industrial Disputes Act may be to impart social justice to the workman but the same by itself would not mean that irrespective of his conduct a workman would automatically be entitled to relief. The procedural laws like estoppel, waiver and acquiescence are equally applicable to the industrial proceedings. A person in certain situation may even be held to be bound by the doctrine of acceptance sub silentio. The respondent herein did not raise any industrial dispute questioning the termination of her services within a reasonable time. She even accepted an alternative employment and has been continuing therein from 10-8-1988. In her replication filed before the Presiding Officer of the Labour Court while traversing the plea raised by the appellant herein that she is gainfully employed in HUDA with effect from 10-8-1988 and her services had been regularised therein, it was averred: "6. The applicant workman had already given replication to the ALC-cum-Conciliation Officer, stating therein that she was engaged by HUDA from 10-8-1988 as clerk-cum-typist on daily-wage basis.
The applicant workman has the right to come to the service of the management and she is interested to join them."
19. She, therefore, did not deny or dispute that she had been regularly employed or her services had been regularised. She merely exercised her right to join the service of the appellant."
15. Yet again in U.P. State Electricity Board V. Rajesh Kumar, [(2003) 12 SCC 548], this Court held that: although a period of limitation is prescribed for making a reference, but facts and circumstances of each case is required to be considered in dealing with stale claims".
16. Recently in Assistant Engineer, C.A.D., Kota Vs Dhan Kunwar [AIR (2006) SC 2670], it was held:
"6. It may be noted that so far as delay in seeking the reference is concerned, no formula of universal application can be laid down. It would depend on facts of each individual case."
17. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. The Appeal is allowed".
17 On the other hand, Ld.AR for workman in his written Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 15 KUMAR Date:
2021.10.04 16:49:02 +0530 arguments contended that the workman gave a demand notice to the management on 22.11.1995 seeking reinstatement and challenging the illegal termination and thereafter, considering the Press Trust of India as instrumentality of the State, a writ petition bearing WP (C) No. 1612/1996 was filed in the Hon'ble High Court of Delhi by the workman challenging the illegal termination and the said writ petition was admitted and after due deliberations, came up for hearing before the Hon'ble High Court of Delhi and the Hon'ble High Court of Delhi vide order dated 20.05.2013 (Ex.WW1/5) passed the following order:
"1. This writ petition is filed against the respondent- Press Trust of India Ltd. which is not a State as per Article 12 of the Constitution of India.
2. Accordingly, counsel for the petitioner prays for and is granted liberty to withdraw the petition so that petitioner can file appropriate independent proceedings in a competent forum/court for claiming the reliefs which have been claimed in the writ petition.
3. Dismissed as withdrawn with the aforesaid liberty."
18 Ld.AR for workman further contended that thereafter, a demand notice dated 28.09.2013 was again sent to the management through registered post and despite of receipt of the same, no response or reply was sent and thereafter, the workman raised an industrial dispute by filing a claim before the Conciliation Officer Ex.WW1/8 thereby resulting into the present reference. Ld.AR for workman further contended that the Hon'ble High Court of Delhi vide order dated 20.05.2013 directed to approach the appropriate forum i.e. by raising I.D. and as such there is no delay in the raising the present dispute and moreover there is no time period suggested for raising a Digitally signed by LIR No. 5851/16 (new), 387/14 (old) RAMESH 16 RAMESH KUMAR KUMAR Date:
2021.10.04 16:49:10 +0530 dispute under the I.D. Act and the said period stands duly condoned as per the above said order.
19 I have given my thoughtful consideration to the respective contentions of both the parties.
20 I have perused the record. A perusal of record shows that after his acquittal from the said criminal case on 15.06.1995, the workman approached the management and gave the joining report dated 07.08.1995 which is Ex.WW1/2. However, the management did not consider the said joining report of the workman and terminated his services vide termination letter, Ex.WW1/3 on account of his continuous absence for more than two and half years and in view of his conviction for a crime involving moral turpitude. The said termination letter is dated 30.10.1995. Thereafter, the workman issued a legal notice dated 22.11.1995 to the management seeking quashing of order of termination dated 30.10.1995 but to no avail and then he approached the Hon'ble High Court of Delhi and filed a writ petition against the management vide WP (C) No. 1612/1996 thereby challenging his illegal termination, however Hon'ble High Court of Delhi vide its order dated 20.05.2013 (Ex.WW1/5) granted liberty to the workman to file appropriate independent proceedings before a competent forum/court for claiming the reliefs which have been claimed in the writ petition, since the said writ petition was filed against the Press Trust of India Ltd. which was not a State as per Article 12 of the Constitution of India. Thereafter, the workman again issued a demand notice dated 28.09.2013 to the management which is Ex.WW1/6 thereby demanding his reinstatement and all other benefits Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 17 KUMAR Date:
2021.10.04 16:49:17 +0530 including back wages, consequential reliefs and promotion. The management had also given reply to the said demand notice of the workman vide its reply dated 17.10.2013 which is Ex.WW1/7. Thereafter, in the year 2013 the workman approached the Labour Department and filed his statement of claim before the Conciliation Officer. 21 Though the workman did not state in his claim as to on which date he approached the Industrial Adjudicator, however, Ld. AR for management clarified this fact in written arguments that the claimant subsequent to dismissal of Writ Petition (C) No. 1612/1996 on 20.05.2013 had approached the Industrial Adjudicator on 06.11.2013 which is around 166 days after the dismissal of the said writ petition. The workman has remained silent on this aspect during the entire proceedings. Demand notice dated 28.09.2013 Ex.WW1/6 also shows that there was a delay of around 130 days in sending the said notice after the dismissal of the said writ petition. However, it cannot be said that the present claim has been raised by the workman after about 19 years of termination of his employment as alleged by the management as the said delay had been occurred due to the filing of said writ petition by the workman before Hon'ble High Court of Delhi assuming the Press Trust of India Ltd. as a State as per Article 12 of the Constitution of India. Even if it is presumed that there was some delay in raising the present claim, yet this court is of the opinion that the relief, if any, cannot be denied to the workman merely on the ground of delay and it would always be in the interest of justice if the matter is decided on merits instead of technicalities.
Digitally signed by RAMESH RAMESH KUMAR LIR No. 5851/16 (new), 387/14 (old) KUMAR Date: 18 2021.10.04 16:49:23 +0530 22 On the point of delay in raising an industrial dispute this court finds support from the judgment of the Hon'ble Supreme Court of India in case of "Raghubir Singh Vs. General Manager, Haryana Roadways, Hissar, Civil Appeal No. 8434 of 2014 (Arising out of SLP (C) No. 22487 of 2012), wherein it was observed that:-
"11. In our view of the facts and circumstances of the case on hand, the reference was made by the State Government to the Labour Court for adjudication of the eXisting industrial dispute; it has erroneously held it to be barred by limitation. This award was further erroneously affirmed by the High Court, which is bad in law and therefore the same is liable to be set aside.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx This Court in Avon Services Production Agencies (Pvt.) Ltd. v. Industrial Tribunal, Haryana & Ors. [2], after interpreting the phrases at any time rendered in Section 10 (1) of the Act, held thus:-
"7. Section 10 (1) enables the appropriate Government to make reference of an industrial dispute which eXists or is apprehended at any time to one of the authorities mentioned in the section. How and in what manner or through what machinery the Government is apprised of the dispute is hardly relevant. The only requirement for taking action under Section 10 (1) is that there must be some material before the Government which will enable the appropriate Government to form an opinion that an industrial dispute eXists or is apprehended. This is an administrative function of the Government as the eXpression is understood in contradistinction to judicial or quasi-judicial function Therefore, it is implicit from the above case that in case of delay in raising the industrial dispute, the appropriate government under Section 10 (1) of the Act has the power, to make reference to either Labour Court or Industrial Tribunal, if it is of the opinion that any industrial dispute eXists or is apprehended at any time, between the workman and the employer. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
12. Therefore, in our considered view, the observations made by this Court in the Rajasthan Digitally signed by LIR No. 5851/16 (new), 387/14 (old) RAMESH 19 RAMESH KUMAR KUMAR Date:
2021.10.04 16:49:30 +0530 State Agriculture Marketing Board case (supra) upon which the learned Additional Advocate General for the State of Haryana has placed reliance cannot be applied to the fact situation of the case on hand, for the reason that the Labour Court has erroneously rejected the reference without judiciously considering all the relevant factors of the case particularly the points of dispute referred to it and answered the 2nd issue regarding the reference being barred by limitation but not on the merits of the case. The said decision has no application to the fact situation and also for the reason the catena of decisions of this Court referred to supra, wherein this Court has categorically held that the provisions of Limitation Act under Article 137 has no application to make reference by the appropriate government to the Labour Court/Industrial Tribunal for adjudication of eXisting industrial dispute between workmen and the employer.
13. In the case on hand, no doubt there is a delay in raising the dispute by the appellant; the Labour Court nevertheless has the power to mould the relief accordingly. At the time of adjudication, if the dispute referred to the Labour Court is not adjudicated by it, it does not mean that the dispute ceases to exist. The appropriate government in exercise of its statutory power under Section 10 (1) (c) of the Act can refer the industrial dispute, between the parties, at any time, to either the jurisdictional Labour Court/Industrial Tribunal as interpreted by this Court in the Avon Services case referred to supra. Therefore, the State Government has rightly eXercised its power under Section 10 (1)
(c) of the Act and referred the points of dispute to the Labour Court as the same are in accordance with the law laid down by this Court in Avon Services & Sapan Kumar Pandit cases referred to supra.
14. Further, the workman cannot be denied to seek relief only on the ground of delay in raising the dispute as held in the case of S.M. Nilajkar & Ors. v.
Telecom District Manager, Karnataka [4] it was held by this Court as follows:-
"It was submitted on behalf of the respondent that on account of delay in raising the dispute by the appellants the High Court was justified in denying relief to the appellants. We cannot agree......In Ratan Chandra Sammanta and Ors. v.
Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 20 KUMAR Date:
2021.10.04 16:49:36 +0530 Union of India and Ors. (supra) 1993 AIR SCW 2214, it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself, lapse of time results in losing the remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. However, we do not think that the delay in the case at hand has been so culpable as to disentitle the appellants for any relief. (Emphasis laid by the Court) In view of the legal principles laid down by this Court in the above judgment, the reference of the industrial dispute made in the case on hand by the State Government to the Labour Court to adjudicate the eXisting industrial dispute between the parties was made within a reasonable time, considering the circumstances in which the workman was placed, firstly, as there was a criminal case pending against him and secondly, the respondent had assured the workman that he would be reinstated after his acquittal from the criminal case. Moreover, it is reasonable to adjudicate the industrial dispute in spite of the delay in raising and referring the matter, since there is no mention of any loss or unavailability of material evidence due to the delay. Thus, we do not consider the delay in raising the industrial dispute and referring the same to the Labour Court for adjudication as gravely erroneous and it does not debar the workman from claiming rightful relief from his employer.
15. In the case of Ajaib Singh v. The Sirhind Co-Operative Marketing Cum- Processing Service Society Limited & Anr. [5] this Court has opined that relief cannot be denied to the workman merely on the ground of delay, stating that:-
10. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the labour court can be generally questioned on the ground of delay alone.
Even in a case where the delay in shown to be eXisting, the tribunal, labour court or board, dealing with the case can appropriately mould the Digitally signed by LIR No. 5851/16 (new), 387/14 (old) RAMESH 21 RAMESH KUMAR KUMAR Date:
2021.10.04 16:49:43 +0530 relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/ termination or dismissal. The Court may also in appropriate cases direct the payment of part of the back wages instead of full back wages.....(Emphasis laid by the Court) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
17. Further, the Labour Court on an erroneous assumption of law framed the additional issue regarding the limitation in raising the dispute and its reference by the State Government to the Labour Court. Thus, the Labour Court has ignored the legal principles laid down by this Court in the cases referred to supra. The award passed by the Labour Court was accepted erroneously by both the learned single Judge and the Division Bench of the High Court by dismissing the Civil Writ Petition & the Letters Patent Appeal without eXamining the case in its proper perspective, keeping in view the power of the State Government under Section 10 (1) (c) and the object and intendment of the Act. Not adjudicating the eXisting industrial dispute on merits between the parties referred to it may lead to disruption of industrial peace and harmony, which is the foremost important aspect in Industrial Jurisprudence as the same would affect the public interest at large.
18. The Labour Court has failed to e Xercise its statutory power coupled with duty by not going into the merits of the case and adjudicating the points of dispute referred to it while answering the additional issue No. 2 framed by it regarding limitation. Therefore, it is a fit case for us to eXercise the jurisdiction of this Court for the reason of non adjudication of dispute on merits between the parties with regard to the justifiability of the order of dismissal passed by respondent."
23 Therefore, keeping in view the discussion herein above and also keeping in view the aforesaid law point, it is held that the management has failed to prove that the claim of the work- man is misconceived and is not maintainable and is bad on ac- count of delay and latches. The judgments relied upon by Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 22 KUMAR Date:
2021.10.04 16:49:49 +0530 Ld.AR for management on the aspect of delay and latches in raising the claim are not applicable in the facts of the present case keeping in view the law laid down by Hon'ble Supreme Court of India in case titled as "Raghubir Singh Vs. General Manager, Haryana Roadways (supra)". Accordingly, issue no.1 & 2 are decided in favour of the workman and against the management.ISSUE NO. 3 & 5
24 These issues are inter-related as the finding of one issue has a direct bearing on the other issue and as such all these issues are being taken up together. The onus to prove issue no.3 was upon the management and the management had to prove that the workman/claimant has been unauthorizedly absented from his duty without any leave for more than two and half years and is guilty of serious misconduct, whereas the onus to prove issue no.5 was upon the workman and he had to prove that he absented himself from his duty and thereby abandoned his job of his own or his services has been terminated by the management. 25 The WW1 Sh. Shrawan Kumar was cross examined by Ld. AR for management on these issues and in his cross examination the workman deposed that his last date of reporting on the post of Transmission Operator in the management was 29.01.1993 and he worked with the management on 29.01.1993 from 10:00 a.m. to 12:30 p.m. He further deposed that Ex.WW1/9 is the document issued by Mr. K.S. Jolly, Deputy General Manager on 27.04.1993 on request of his father Captain Sultan Singh that he worked in the office in the morning 29.01.1993 and left the office between 12:00 noon to 12:30 p.m. He further deposed that he has Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 23 KUMAR Date:
2021.10.04 16:49:56 +0530 no documentary proof to show that he has left the office on 29.01.1993 by permission of the management. He further admitted as correct that w.e.f. 12:30 p.m. on 29.01.1993 till date of termination, he continued to absent unauthorizedly from the office without prior permission. However, he volunteered that he was confined in judicial custody w.e.f. 29.01.1993 to 15.06.1995.
He further deposed that he was in the police custody from 03.00 p.m. on 29.01.1993 to 30.01.1993 and he was thereafter, sent to judicial custody on 30.01.1993 to 15.06.1995. He again volunteered that he was arrested by the police on 29.01.1993. He further deposed that during this period he has given Vakalatnama to his counsel who was contesting his dispute before Gurgaon Court in his FIR matter. He further admitted as correct that he has taken parole for ten days in December 1993 due to marriage of his sister and also that during the period of parole also he has not written any letter to the management regarding his judicial custody. He further deposed that the name and address mentioned in Ex.WW1/M1 and Ex.WW1/M2 bear his correct residential address but he has not received Ex.WW1/M1 and Ex.WW1/M2 and he cannot tell whether document Ex.WW1/M1 and Ex.WW1/M2 were received in residential address or not. He further denied the suggestion that the letter Ex.WW1/M1 and Ex.WW1/M2 were duly received. He further admitted as correct that till the date of termination he was not having any judicial pronouncement in his favour that he was acquitted from the charges mentioned in FIR. He further admitted as correct that he had sent a demand notice dt. 28.09.2013 regarding his termination order dated 30.10.1995 to the management. He Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 24 KUMAR Date:
2021.10.04 16:50:04 +0530 further admitted as correct that he was absent unauthorizedly without prior permission for more than 2 ½ years. 26 MW1 Sh. M.R. Mishra was also cross examined by Ld.AR for workman and in his cross examination MW1 deposed that the attendance record of the workman is available in the office for the period he was attending to his duties but there is no record of attendance of the workman with the management after the day he last attended the duty. He further deposed that the workman last attended the duty on 29.01.1993 and in September 1993 a letter was written to the workman that he was on unauthorized leave and was not attending his duties. He further deposed that the letter was sent by the manager concerned but was not sent by him and the name of the manager was Sh. Krishan Anand. He further deposed that he has never seen about the conduct of the workman nor have any link with the same. He further deposed that there are no codified rules regarding the conduct and discipline of the workman but he volunteered that the employees are aware about the disciplinary rules. He further deposed that they have not filed any disciplinary rule. During his further cross examination, Ld. AR for workman put a question to MW1 that "has he communicated any disciplinary or conduct rule to the workman in any of the letters?, to which this witness replied that "it was not required since in the appointment letter it was duly mentioned that any leave without the permission of the management will amount to misconduct. This witness further deposed that the appointment letter of the workman is already on record as Ex.WW1/1 and there is no other document with respect to the appointment and employment of the workman filed in the Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 25 KUMAR Date:
2021.10.04 16:50:10 +0530 court record. He further admitted as correct that one Mr. Mahesh Prasad might be working as economic head in January 1993 and also that the workman had gone after informing Mr. Mahesh Prasad during second half of the 29.01.1993. He further deposed that the management does not keep track of the news which are not sent or published through PTI. He further deposed that he is not aware of any news published in Jansatta on 01.02.1993 that the workman of PTI has been arrested on the charges of abatement of suicide of his wife. He further deposed that he has no information given by the father of the workman regarding the arrest of the workman by the police on the charges of abatement of suicide of his wife. He further deposed that one Mr. K.S. Jolly was also in the employment of the management but he is not aware that Mr. Jolly had appeared in the criminal case on behalf of PTI. He further deposed that he is also not aware regarding appearance by Mr. Mahesh Prasad on behalf of the management in the said criminal case. He further admitted as correct that the workman had written a letter on 07.08.1995 for joining his duties but he is not aware whether the letter was given by the workman in person in the office or it was received through post. He further admitted as correct that the said letter is on court record as Ex.WW1/2. He further deposed that prior to that letter no chargesheet, no inquiry, no show cause notice was issued by the management to the workman. He further denied the suggestion that they had given a termination letter immediately to the workman but he volunteered that prior to termination letter he was given letter asking him to report for duty. During his further cross examination, Ld.AR for workman put a question to this Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 26 KUMAR Date:
2021.10.04 16:50:16 +0530 witness and he was being asked to tell about any document on record to show that there is term and condition of the employment that a workman who was charged in the criminal case and was later on acquitted, can be terminated from the employment on that ground, to which he replied that there is nothing on record to show any such document. He further deposed that there was no hearing given to the workman before termination. He further deposed that contents of para 6 of his affidavit of evidence are correct. During his further cross examination Ld.AR for workman again put a question to this witness and he was being asked that "Is it correct that he was not aware about the facts of the case before 07.08.1995 as stated in his affidavit", to which he replied that he was aware about his unauthorized leave but he was not aware of his incarceration. He further deposed that the management was not aware about the criminal case pending against the workman. He further deposed that he is not aware that Mr. K.S. Jolly and Mr. Mahesh Prasad had appeared in the criminal case against the workman alongwith the record from the management. He further deposed that he is also not aware of any case wherein the employee was involved in the criminal case and had not been attending the duties for quite some time but no action was taken against him. He further deposed that he is not aware about there being any employee by name of Sh. Inder Raj Singh in Transmission Department or that he was also arrested by the police in the same case in which the workman was taken into custody. He further deposed that he also cannot say whether said Sh. Inder Raj Singh was allowed to resume the duty after he was released from the jail. He further Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 27 KUMAR Date:
2021.10.04 16:50:23 +0530 admitted as correct that Ex.WW1/9 was issued by the management and also that the management had received the letter dated 07.08.1995. He further denied the suggestion that the management has acted illegally and against the principles of natural justice or that the management has acted in unjust haste to terminate the services of the workman or that the termination of the workman is illegal and unjustified or that the workman is entitled to reinstatement with full back wages or that he is concealing the correct facts from this court. 27 The main contention of Ld.AR for management in written arguments is that the claimant had been unauthorizedly absenting from duty without leave for more than two and half years amounting to grave and serious misconduct which seriously hampered the day to day working of the management. Ld. AR for management further contended that the claimant informed the office in the morning of January 29, 1993 that he is leaving the office to attend personal work and since then he remained absent without any further intimation and the management had issued a letter dated 13.09.1993, Ex.MW1/1 to him to report for duty failing which the management would be constrained to take appropriate action as per rules and the said letter was duly service upon the claimant and the management had subsequently issued another letter dated 24.09.1994 Ex.MW1/2 to the claimant stating that in case he did not report for duty or no intimation is received from him within the stated time it would be presumed that the claimant was no more interested in the employment of the management and steps would be taken for termination of his employment. Ld.AR for management further contended that both Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 28 KUMAR Date:
2021.10.04 16:50:31 +0530 the letters were sent at the correct address of the claimant which has been admitted by him in his cross examination and even receipt has not been denied by him. Ld.AR for management drawn the attention to the relevant cross examination of the workman which is reproduced as under:
"The name and address mentioned in Ex.WW1/M1 and Ex.WW1/M2 bear my correct residential address. I have not received Ex.WW1/M1 and Ex.WW1/M2. I cannot tell whether document Ex.WW1/M1 and Ex.WW1/M2 were received in residential address or not."
28 Ld.AR for management further contended that in absence of any response from the workman was left with no option to termination his services from its employment w.e.f. 30.01.1993 and intimation for termination was duly communicated to the claimant vide letter dated 30.10.1995 Ex.MW1/3 after the management had received a communication dated 07.08.1995 from him. Ld.AR for management further contended that the claimant was found guilty of commission of an offence under section 498A of IPC for cruelty towards his pregnant wife leading to her hanging herself to death vide order dated 15.06.1995 and was subsequently acquitted of the said charge vide order dated 30.03.2007 (Ex.WW1/4) by the Hon'ble High Court of Punjab and Haryana at Chandigarh. Ld.AR for management further contended that the claimant has deliberately not filed the order dated 15.06.1995 passed by Ld. Sessions Judge, Gurgaon which clearly states that the claimant was in judicial custody from 30.01.1993 to 15.06.1995 and had further taken parole for ten days in December 1993 and thus was in a Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 29 KUMAR Date:
2021.10.04 16:50:37 +0530 position to communicate with the management but failed to do so. Ld.AR for management further contended that the claimant at the time of his termination of employment was not acquitted of his charges as he had wrongfully claimed in his letter dated 07.08.1995 (Ex.WW1/2) and he was thus terminated from his employment for such grave and serious misconduct of unauthorized absence, conviction for a crime involving moral turpitude and thus total loss of confidence was awarded the punishment of termination from service by the management.
Ld.AR for management further contended that the incarceration of the claimant under a criminal case was never brought to the knowledge of the management by the claimant during the period of his unauthorized absence and it was only through the communication sent by him dated 07.08.1995 that the management came to know about the case against the claimant and prior to the said letter the claimant was unauthorizedly absent from his duties without any intimation to the management. Ld.AR for management further contended that even by his own admission, the claimant was in custody till 15.06.1995 and only communicated to the management after around 50 days of his release vide communication dated 07.08.1995 but the claimant after his release from the court did not report for duty. Ld.AR for management further drawn the attention towards relevant cross examination of the workman which is reproduced as under:
"I have no documentary proof to show that I have left the office on 29.01.1993 by permission of the management. It is correct that w.e.f. 12.30 p.m. on 29.01.1993 till the date of termination, I continued absent unauthorizedly from office Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 30 KUMAR Date:
2021.10.04 16:50:43 +0530 without permission. Vol. I was confined in judicial custody w.e.f. 29.01.1993 to 15.06.1995. I was in the police custody from 03.00 p.m. on 29.01.1993 to 30.01.1993 and thereafter, I was sent to judicial custody on 30.01.1993 to 15.06.1995. Vol. I was arrested by police on 29.01.1993. During the period I have given vakalatnama to my counsel who was contesting my dispute before Gurgaon court in my FIR matter. It is correct that I have taken parole for ten days in December 1993 due to marriage of my sister. It is correct that during the period of parole also I have not written any letter to the management regarding my judicial custody."
29 Ld.AR for management further contended that thus as is evident from the aforesaid facts that the claimant at no point of time had either sought permission for absence, nor at any point of time permission was granted by the management for absence and it is settled law that leave has to be both sought and granted failing which such absence is unauthorized. Ld.AR for management further contended that the claimant after leaving the office of the management on 29.01.1993 communicated with the management for the first time on 07.08.1995, thus he remained unauthorizedly absent from office for a period of 920 days and same has been duly admitted by the claimant. Ld.AR for management further contended that the claimant to escape the consequences of his unauthorized absence has pleaded knowledge on the part of the management of his incarceration and trial and for that he has relied upon a letter dated 27.04.1993 Ex.WW1/9 issued by the management which is deposition of employee of the management in criminal proceedings dated Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 31 KUMAR Date:
2021.10.04 16:50:59 +0530 09.03.1995 and the claimant has further relied on a news-paper cutting Ex.WW1/10 but none of the documents can be construed to be either an application for grant of leave on the part of the claimant or an approval on the part of the management for grant of leave.
30 In support of his contentions, Ld. AR for management has relied upon following judgments:-
a Burn & Co., Calcutta vs Their Employees (Supreme Court of India, decided on 11 October 1956); b Workmen Of M/s Firestone Tyre & Rubber Co. of India P. Ltd. vs Management & Others, Civil Appeal No. 1995 of 1972 (AIR 1973 Supreme Court 1227); c Indian Iron & Steel Co. Ltd. & Anr. vs Their Workmen, Civil Appeal No. 44, 45, 336 and 337 of 1957 (AIR 1958 Supreme Court 130, V 45 C 21); d Delhi Transport Corporation vs Sardar Singh (2004) 7 Supreme Court Cases 574;
e The Tata Engineering and Locomotive Company Ltd., Jamshedpur Vs The Presiding Officer, Industrial Tribunal, Ranichi and Anr. Civil Writ Jurisdiction Case no. 1330/1984 dated 04.08.1989; and f State of West Bengal & Ors. vs Sankar Ghosh (214) 3 Supreme Court Cases 60.
31 On the other hand, in written arguments Ld.AR for workman drawn the attention towards letter of appointment Ex.WW1/1 of the workman wherein no terms and conditions have been specified with regard to his remaining absent from duty as alleged by MW1 in his cross examination. Ld. AR for Digitally signed by RAMESH RAMESH KUMAR LIR No. 5851/16 (new), 387/14 (old) KUMAR Date: 32 2021.10.04 16:51:05 +0530 workman further contended that on his release and acquittal from the criminal case, the workman gave letter dated 07.08.1995 Ex.WW1/2 to the management on which the management without giving any opportunity and contrary to the principle of natural justice issued letter Ex.WW1/3 terminating his services. Ld. AR for workman further contended that the acquittal of the workman under section 304 B of IPC in the criminal case by the Sessions Court is Ex.MW1/9 wherein the charges of section 498- A was also held to be not punishable against him and the appeal was allowed against the same by Hon'ble High Court of Chandigarh vide its order Ex.WW1/4. Ld. AR for workman further contended that it is pertinent to mention herein that at page 232 of Ex.WW1/9 the statement of Sh. Mahesh Parshad of the management was recorded and he was cross examined on 09.03.1995 and the certified copy of the said statement is placed on record and judicial notice of the same can be taken by this court which has been relied upon by the workman in his affidavit as Ex.WW1/9. Ld. AR for workman further contended that therefore, it is absolutely clear that the management was fully aware about the workman being under judicial custody and it was also in their record. Ld. AR for workman further contended that the copy of the publication as news in "Jansatta" dated 01.02.1993 Ex.WW1/10 also clears that the new of the arrest of the claimant was known publically and the management cannot show its ignorance about the said fact. Ld.AR for workman also drawn the attention towards cross examination of MW1 Sh. M.R. Mishra, wherein MW1 admitted that he does not have any authorization to depose on behalf of the management and has Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 33 KUMAR Date:
2021.10.04 16:51:12 +0530 also admitted that he has not dealt with the matter related to the workman. He has also admitted that he has no access nor has gone through the attendance record of the workman and according to him no record of attendance of the workman is available. He has further admitted that no action was taken prior to receipt of the letter dated 07.08.1995 of the workman Ex.WW1/2 and no enquiry or show cause notice was given to the workman. He has referred to the terms of appointment letter which are not contained in the said appointment letter Ex.WW1/1. He has also admitted that there is no other document governing the disciplinary and service rule. He has also admitted that Sh. Mahesh Prashad was the officer Incharge. He has shown no knowledge of Mr. Mahesh Prashad and Mr. K.S. Jolly appearing in the criminal case on behalf of the management to produce the records who were fully aware that the workman was under judicial custody during the said period w.e.f. 29.01.1993 to 15.06.1995. He has further stated that letters were given to the workman but no proof of delivery or service of the said letters have been shown in the court record. He has further admitted that no hearing was given to the workman before his termination. He has further denied of having any knowledge regarding one Sh.
Inder Raj Singh, as per the document of the management Ex.MW1/9 which it is revealed clearly that Sh. Inder Raj Singh was also a co-accused and was acquitted and had not attended his duties of being in judicial custody and was subsequently allowed to resume the duty after he was released from the judicial custody in the criminal case". Ld. AR for workman further contended that MW1 has clearly stated that the workman was on leave and has Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 34 KUMAR Date:
2021.10.04 16:51:19 +0530 not asserted in his deposition that the workman was absent and there is clear distinction between absence and leave. Ld. AR for workman further contended that the period of absence was neither willful nor unauthorized but on account of arrest of the workman on the charges under section 304B/498A IPC and he was later on acquitted and released and he immediately reported for duty but meanwhile no action was contemplated by the management until the joining letter dated 07.08.1995 was given. Ld. AR for workman further contended that the workman did not abandon the employment due to compelling circumstances of having been arrested and immediately on his release reported for duty and the management was aware of the said fact as Sh. Mahesh Prasad was sent by the management as a witness in the criminal trial in which the workman was already under judicial custody. The principle of natural justice has been violated grossly by the management in haste and illegally and the malafide act of remaining silent till receiving the letter dated 07.08.1995 of the workman for joining duty. Ld. AR for workman further contended that no show cause notice, charge sheet or enquiry was conducted and no service regulations on record show workman guilty or liable to be terminated due to criminal case not involving any context of the employment/service. Ld. AR for workman further contended that no complaint of deficiency in the services of the workman admittedly he was sincere, honest and hard-working employee and legal justification that he was arrested and confined to judicial custody w.e.f. 21.01.1993 and reported for duty after being discharged from jail, acquitted from all charges. Ld. AR for workman further contended that the Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 35 KUMAR Date:
2021.10.04 16:51:27 +0530 evidence given by Sh. Mahesh Prasad of the management in criminal case is sufficient to reject the allegation of unauthorized absence and no knowledge to the management as per Ex.WW1/9 and the action of the management is therefore, completely in violation of the settled law and provisions of Industrial Disputes Act as well as principle of natural justice and contrary to all fairness in dealing with the fate of a poor employee. 32 I have given my thoughtful consideration to the respective contentions made by Ld. AR for both the parties. 33 I have perused the record. Here it be noted that the management had issued the termination letter Ex.WW1/3 dated 30.10.1995 thereby terminating the services of the workman, when the workman moved his application for rejoining his duty on 07.08.1995 and prior to 07.08.1995, the management did not inform the workman that his services have already been terminated on the ground of unauthorized absence from the duty.
As per termination letter Ex.WW1/3 (also Ex.MW1/3), the management had terminated the services of the workman in view of his continuous absence for more than two and half years and in view of his conviction for a crime involving moral turpitude. 34 Admittedly the workman was in judicial custody w.e.f. 30.01.1993 till 15.06.1995, due to which he was absent from the duty. However, the management has showed its ignorance that they were not aware about the incarceration of the workman in a criminal case till 07.08.1995.
35 In order to prove that the management was aware about the fact that the workman was in judicial custody w.e.f. 30.01.1993 till 15.06.1995, Ld. AR for workman has placed on record Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 36 KUMAR Date:
2021.10.04 16:51:34 +0530 certified copy of statement of one Sh. Mahesh Prasad, Editor in Economic Division of the management, who was sent by the management as a witness with summoned record in criminal case filed against the workman herein. The statement of said Sh. Mahesh Prasad is Ex.WW1/9. Ld.AR for workman has also placed on record copy of the publication in newspaper "Jansatta" dated 01.02.1993, Ex.WW1/10 wherein the news of the arrest of the claimant was published. However, Ld.AR for management in additional written submissions contended that Ex.WW1/9 and Ex.WW1/10 were not filed by the workman alongwith his statement of claim and were filed subsequently without seeking permission of the court, thus the documents as per settled law cannot be part of the proceedings and cannot be taken into consideration. This contention of Ld.AR for management is not well found keeping in view the fact that strict principles of CPC are not applicable in the proceedings under the Industrial Disputes Act, 1947 and even the court can take judicial notice of the relevant evidence/document placed before it at any stage.
36 I have perused the statement of said Sh. Mahesh Prashad which is Ex.WW1/9. This statement of Sh. Mahesh Prasad was recorded in the said criminal case on 09.03.1995, wherein he deposed during cross examination that "Sarwan Kumar never attended the office after 29.01.1993 as he was arrested in this case". It means that the management was fully aware of the fact that the workman was in judicial custody after 29.01.1993. Therefore, this contention of the management is also not found well that they were not aware about the fact that the workman was in judicial custody, keeping in view the statement of Shri Digitally signed by RAMESH RAMESH KUMAR LIR No. 5851/16 (new), 387/14 (old) KUMAR Date: 37 2021.10.04 16:51:40 +0530 Mahesh Prasad, which is Ex.WW1/9. Further, a perusal of deposition of workman would also show that he was cross examined by Ld.AR for management on the aspect of taking parole for ten days in December 1993, but the management did not explain as to how and from whom they got the said information. Therefore, all these facts prove that the management was fully aware that the workman was in judicial custody after 29.01.1993.
37 In support of his contention Ld.AR for workman relied upon the judgment of Hon'ble Calcutta High Court in case titled as Sikha Rani Singha And Anr. vs General Manager, Calcutta, decided on 31 January 2005 Calcutta High Court, wherein it was held that:
"14. (Uptron India Ltd. V. Shammi Bhan) : In paragraph 20 of this decision two Judges' Bench of the Apex Court observed that for overstaying the leave no person could be removed without giving an opportunity for hearing to him. The Apex Court observed that the principles of natural justice, which have to be read into offending clause, must be complied with and the employee must be informed of the grounds for which action was proposed to be taken against him for overstaying the leave.
17. (D.K. Yadav v. JMA Industries Ltd.): Three Judges' Bench of the Apex Court while considering an identical issue observed that no opportunity was given and no enquiry was held. When he reported to duty on subsequent days and expressed his readiness to joint duty he was prevented from reporting to duty. In such circumstances, the Apex Court held that the order of termination was violative of principles of natural justice. The Apex Court directed reinstatement with back wages.
38 Ld.AR for workman further relied upon the judgment of Hon'ble Supreme Court of India in case titled as Uptron India Limited vs Shammi Bhan & Anr. on 6 February 1998, wherein it was held that:
Digitally signed by RAMESH RAMESH KUMAR LIR No. 5851/16 (new), 387/14 (old) KUMAR Date: 38 2021.10.04 16:51:46 +0530 "16. This Court in West Bengal State Electricity Board & Ors. Vs. Desh Bandhu Ghosh & Ors. (1985) 3 SCC 116 held that any provision in the Regulation enabling the management to terminate the services of a permanent employee by giving three months' notice or pay in lieu thereof, would be bad as violative of Article 14 of the Constitution. Such a Regulation was held to be capable of vicious discrimination and was also held to be naked `hire and fire' rule. This view was reiterated in Central Inland Water Transport Corporation Limited & Anr. Vs. Brojo Nath Ganguly & Anr. (1986) 3 SCC 156.
18. The whole case law was reviewed by the Constitution Bench in Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress & Ors. 1991 Supp (1) SCC 600, and except the than Chief Justice Sabyasachi Mukharji, who dissented, the other 4 judges reiterated the earlier view that the services of a confirmed employee could not be legally terminated by a simple notice.
20. There is another angle of looking at the problem. Clause 17(g), which has been extracted above, significantly does not say that the services of a workman who overstays the leave for more than seven days shall stand automatically terminated. What it says is that "the services are liable to automatic termination." This provision, therefore, confers a discretion upon the management to terminate or not to terminate the services of an employee who overstays the leave. It is obvious that this discretion cannot be exercised, or permitted to be exercised, capriciously. The discretion has to be based on an objective consideration of all the circumstances and material which may be available on record. What are the circumstances which compelled the employee to proceed on leave; why he overstayed the leave; was there any just and reasonable cause for overstaying the leave; whether he gave any further application for extension of leave; whether any medical certificate was sent if he had, in the meantime, fallen ill? These are questions which would naturally arise while deciding to terminate the services of the employee for overstaying the leave. Who would answer these questions and who would furnish the material to enable the management to decide whether to terminate or not to terminate the services are again questions which have an answer inherent in the provision itself, namely, that the employee against whom action on the basis of this provision is proposed Digitally signed by LIR No. 5851/16 (new), 387/14 (old) RAMESH RAMESH KUMAR 39 KUMAR Date:
2021.10.04 16:51:53 +0530 to be taken must be given an opportunity of hearing. The principles of natural justice, which have to be read into the offending clause, must be complied with and the employee must be informed of the grounds for which action was proposed to be taken against him for overstaying the leave.
39 Ld.AR for workman further relied upon the judgement of Hon'ble Supreme Court of India in case titled as V.C. Banaras Hindu University Vs. Shrikant, Appeal (civil) 4147 of 2003, wherein it was held that:-
"It is thus in this context one ought to read the doctrine of natural justice being an inbuilt requirement on the Standing Orders. Significantly, the facts depict that the respondent workman remained absent from duty from 13.10.1990 and it is within a period of four days that a letter was sent to the workman informing him that since he was absenting himself from duty without authorized leave he was advised to report back within 48 hours and also to tender his explanation for his absence, otherwise his disinterestedness would thus be presumed."
The well settled principle of law as regards necessity to comply with the principles of natural justice was again reiterated, stating:-
"Arbitrariness is an antithesis to rule of law, equity, fair play and justice contract of employment there may be but it cannot be devoid of the basic principles of the concept of justice. Justice-oriented approach as is the present trend in Indian jurisprudence shall have to read as an inbuilt requirement of the basic of concept of justice, to wit, the doctrine of natural justice, fairness, equality and rule of law."
A provision relating to abandonment of service came up for consideration yet again in Viveka Nand Sethi Vs. Chairman, J&K Bank Ltd. & Ors. [(2005) 5 SCC 337] before a Division Bench of this Court. This Court opined that although in a case of that nature, principles of natural justice were required to be complied with, a full-fledged departmental enquiry may not be necessary, holding:-
"A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 40 KUMAR Date:
2021.10.04 16:52:02 +0530 expired or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance with the requirements of the principles of natural justice."
40 Ld.AR for workman further relied upon the judgement of Hon'ble High Court of Delhi in case titled as K.G. Khosla Compressors Ltd. Vs. Nirmal Chawla, 2001 (7) AD 739: 2002 (95) DLT 491: 2002 (4) LLJ 1075, wherein it was held that:
"41. The name of the Respondent was on the rolls of the Petitioner till September, 1972. Given this position, the formality of the Respondent applying for leave of absence of producing a medical certificate justifying her absence could certainly have been taken care of on her rejoining her duties. If she had then failed to submit a proper application for leave duly supported by a medical certificate from a competent authority, disciplinary action could have been taken against her. In the circumstances, there was no reason for the Petitioner to refuse to take the Respondent on duty, in situ. She was, after all, its employee even at that time.
42. For these reasons, it is not possible for me to conclude that the finding given by the Labour Court in this regard can be faulted. I confirm the finding of the Labour Court which had already been extracted earlier."
41 This court is very much convinced with the aforesaid judgments as relied upon by Ld.AR for workman. Further, even if it is presumed that the management had no knowledge about the incarceration of the workman during the period of his absence from the duty, then also it was incumbent upon the management to issue a show cause notice or conduct an enquiry against the workman regarding his unauthorized absence from the duty, when the workman had approached the management for rejoining his duties after releasing from judicial custody, but the management did not do so. Moreover, the management also did not try to ascertain the fact as to whether the absence of the Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 41 KUMAR Date:
2021.10.04 16:52:07 +0530 workman from duty was willful or due to compelling circumstances. The management was required to prove that the absence of the workman from duty was willful. If the workman was absent willfully, then same would amount to misconduct. Admittedly the workman was in judicial custody w.e.f. 30.01.1993 to 15.06.1995, therefore, it cannot be said that the absence of the workman from his duty was willful, rather it was only due to his being in judicial custody which was beyond his control, due to which he could not report on his duty resulting in his unauthorized absence but it cannot be said that the unauthorized absence of the workman was willful and as such it cannot be held that such unauthorized absence of the workman from duty amounted to misconduct for which his services could have been terminated, that too, without affording an opportunity of being heard. Therefore, this court is of the opinion that prior to issuing termination letter Ex.WW1/3 (also Ex.MW1/3), the management must have issued a show cause notice to the workman regarding his absence from the duty when he approached the management for rejoining his duty after releasing from judicial custody, but the management neither afforded any opportunity to the workman of being heard, nor issued any show cause notice to him, nor conducted any enquiry against him regarding his absence from the duty. This act on the part of the management itself shows that the management did not follow the principles of natural justice while terminating the services of the workman vide termination letter Ex.WW1/3 (also Ex.MW1/3).
Further, a perusal of letter of appointment Ex.WW1/1 of the workman would show that no terms and conditions have been Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 42 KUMAR Date:
2021.10.04 16:52:13 +0530 specified with regard to remaining absent of the workman from duty. The management has also not produced its service regulation under which an employee can be terminated without following the principles of natural justice or on the basis of any criminal case which was not connected with the service or employment. The management has also not proved as to how the absence of the workman seriously hampered their day to day working. It is also the deposition of MW1 that prior to letter Ex.WW1/2, no charge sheet, no enquiry and no show cause notice was issued to the workman by the management. The management could have taken action against the workman prior to letter dated 07.08.1995 but the management remained silent till when the workman had approached for rejoining his duty after releasing from judicial custody. It appears that the management had straight away issued the termination letter Ex.WW1/3 (also Ex.MW1/3) to the workman thereby terminating his services w.e.f. 30.01.1993, when he had approached the management for rejoining his duties vide letter Ex.WW1/2, that too without affording him a single opportunity of being heard or to explain the reason of his absence from the duty.
42 I have also perused the judgments as relied upon by Ld.AR for management in support of his contentions. 43 Ld.AR for management has relied upon the judgment of Hon'ble Supreme Court of India in case titled as Burn & Co., Calcutta vs Their Employees (supra), wherein it was held that:
"2. Ashimananda Banerjee was arrested by the Government under the West Bengal Security Act and detained in jail from 25-1-1949 to 5-4-1951. The Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 43 KUMAR Date:
2021.10.04 16:52:19 +0530 Company terminated his services on 22-4-1949. The Tribunal made an order that he should be re- employed, and that is not now in question. But he further claims that he is entitled to be reinstated. The Appellate Tribunal has accepted that claim on the ground that he had been discharged without the Company framing a charge or holding an enquiry, and that the rules of natural justice had been violated. We are unable to agree with this decision. The ground of discharge is the continued absence of the employee, and his inability to do work, and it is difficult to see what purpose would be served by a formal charge being delivered to him and what conceivable answer he could give thereto. The order of the Appellate Tribunal is manifestly erroneous and must be set aside."
44 The aforesaid judgment is not applicable in the facts of the present case as in that case the services of the workman had already been terminated while he was in judicial custody, whereas in the present case the services of the workman were terminated by the management when the workman after releasing from judicial custody approached the management and gave the application dated 07.08.1995 for joining his duties, which is Ex.WW1/2.
45 Ld. AR for management further relied upon the judgment of Hon'ble Supreme Court of India in case titled as Workmen of M/s Firestone Tyre & Rubber Co. of India P. Ltd. Vs Management & Ors. (supra), wherein it was held that:-
"27. From those decisions, the following principles broadly emerge (1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to Digitally signed by LIR No. 5851/16 (new), 387/14 (old) RAMESH 44 RAMESH KUMAR KUMAR Date:
2021.10.04 16:52:25 +0530 the employer and employee to, adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action; and it is open to the employee to adduce evidence contra. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to, suggest victimisation".
46 This judgment as relied upon by Ld.AR for management is also not applicable in the facts of the present case as the management could not prove the misconduct of the workman. 47 Ld. AR for management further relied upon the judgment of Hon'ble Supreme Court of India in case titled as Indian Iron & Steel Co., Ltd. & Anr. vs Their Workmen (supra), wherein it was held that:
".......What happened in the case of these men is that on diverse dates between July 5, 1953, and July 10, 1953, they were taken in custody by the police and remained in custody for some time; they applied for leave when in custody but leave was refused. The Industrial Tribunal took the view that Standing Order No. 9 was not an inflexible rule, and a mere application for leave was sufficient to arrest the operation of the Standing Order. When the case was before the Appellate Tribunal, Mr. S. K. Acharya on behalf of the workmen conceded that he was not in a position to support the view of the Fifth Industrial Tribunal in this respect; he contended, however, that the Industrial Tribunal had in each case considered the justification for absence without leave, and in view of the circumstance that the men were in custody, the Company was not justified in refusing leave. This contention found favour with the Labour Appellate Tribunal.
15. The point is now covered by a decision of this Court: Burn and Co., Calcutta Vs. Their Employees. In that case one Ashimananda Bannerji was arrested under the West Bengal Security Act and detained in jail from January 25, 1949, to April 5, Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 45 KUMAR Date:
2021.10.04 16:52:31 +0530 1949. The Company terminated his services on April 22, 1949, on the ground of continued absence. The Appellate Tribunal Ordered his reinstatement on the ground that he had been discharged without a charge and without holding an enquiry. This Court observed:
"We are unable to agree with this decision. The ground of discharge is the continued absence of the employee, and his inability to do work, and it is difficult to see what purpose would be served by a formal charge being delivered to him and what conceivable answer he could give thereto. The order of the Appellate Tribunal is manifestly erroneous and must be set aside."
The same principle should apply in the present case. It is true that the arrested men were not in a position to come to their work, because they had been arrested by the police. This may be unfortunate for them; but it would be unjust to hold that in such, circumstances the Company must always give leave when an application for leave is made. If a large number of workmen are arrested by the authorities in charge of law and order by reason of their questionable activities in connection with a labour dispute, as in this case, the work of the Company will be paralysed if the Company is forced to give leave to all of them for a "more or less indefinite period. Such a principle will not be just; nor will it restore harmony between labour and capital or ensure normal flow of production. It is immaterial whether the charges on which the workmen are arrested by the police are ultimately proved or not in a court of law. The Company must carry on its work and may find it impossible to do so if a large number of Workmen are absent. Whether in such circumstances leave should be granted or not must be left to the discretion of the employer. It may be readily accepted that if the workmen are arrested at the instance of the Company for the purpose of victimisation- and in order to get rid of them on the ostensible pretext of continued absence, the position will be different. It will-then be a colourable or mala fide exercise of power under the relevant Standing Order; that, however, is not the case here.".
48 This judgment as relied upon by Ld.AR for management is also not applicable in the facts of the present case as the management has not placed on record any service condition of Digitally signed by LIR No. 5851/16 (new), 387/14 (old) RAMESH 46 RAMESH KUMAR KUMAR Date:
2021.10.04 16:52:37 +0530 its employee or standing orders.
49 Ld. AR for management further relied upon the judgment of Hon'ble Supreme Court of India in case titled as Delhi Transport Corporation vs Sardar Singh (supr), wherein it was held that:
"9. When an employee absents himself from duty, even without sanctioned leave for very long period, it prima facie shows lack of interest in work. Para 19 (h) of the Standing Order as quoted above relates to habitual negligence of duties and lack of interest in the Authority's work. When an employee absents himself from duty without sanctioned leave the Authority can, on the basis of the record, come to a conclusion about the employee being habitually negligent in duties and an exhibited lack of interest in the employer's work. Ample material was produced before the Tribunal in each case to show as to how the concerned employees were remaining absent for long periods which affect the work of the employer and the concerned employee was required at least to bring some material on record to show as to how his absence was on the basis of sanctioned leave and as to how there was no negligence. Habitual absence is a factor which establishes lack of interest in work. There cannot be any sweeping generalization. But at the same time some telltale features can be noticed and pressed into service to arrive at conclusions in the departmental proceedings.
50 This judgment is also not applicable in the facts of the present case as the workman was not a habitual absentee, rather he was in judicial custody due to which he could not join his duty.
51 Ld. AR for management further relied upon the judgment of Hon'ble Supreme Court of India in case titled as State Of West Bengal & Ors vs Sankar Ghosh (supra), wherein it was held that:-
"In Deputy Inspector General Vs. S.
Digitally
signed by
RAMESH
LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 47
KUMAR Date:
2021.10.04
16:52:43
+0530
Samuthiram [(2013) 1 SCC 598], this Court in paragraph 24, 25 and 26 of the judgment has elaborately examined the meaning and scope of the "honourable acquittal" and held as follows :-
"26. As we have already indicated, in the absence of any provision in the service rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile, etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say that in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so."
52 This judgment is also not applicable in the facts of the present case as the management has not conducted any enquiry against the workman regarding his absence from the duty. 53 Ld. AR for management further relied upon the judgment of Hon'ble High Court of Patna (Ranchi Bench) in case titled as The Tata Engineering and Locomotive Company Ltd., Jamshedpur Vs The Presiding Officer, Industrial Tribunal, Ranichi and Anr. (supra):
Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 48 KUMAR Date:
2021.10.04 16:52:49 +0530 "17. In the present case, the services of the respondent no.2 was terminated on the ground of his absence without leave or permission and not on the ground of his detention by the police in a murder case.
Continuous absence without permission or leave is a misconduct and the petitioner could have proceeded against respondent no.2 on this ground. The law laid down by the Supreme Court in Burn & Co. and Indian Iron shall, therefore, apply to the facts of this case and not the law laid down in Dock Labour Board (supra).
18. The law laid down by the Supreme Court in Burn & Co. (supra) and Indian Iron (supra) applies squarely to the facts of this case. Following those cases, it is held that even if no formal charge was delivered to respondent no.2, his discharge from service could not have been held to be bad in law. The award of respondent no.1 as contained in Annexure 12 cannot be sustained."
54 This judgment is also not applicable in the facts of the present case as the absence of the workman from the duty was not willful but it was only due to his being in judicial custody which was beyond his control.
55 Ld. AR for management further relied upon the judgment of Hon'ble High Court of Delhi in case titled as Trina Engineering Company (P) Vs The Secretary (Labour) And Ors. on 26 July 2005, wherein it was held that:
"10. However, the Labour Court was not satisfied that service of these letters had been proved by observing:
"But the service of none of these letters has been proved either on the workman or on the Conciliation Officer. The 4 letters which are alleged to have been written by the management to the workman have been returned back with the report that the addressee is not available at the given address. It has not been proved by the management that these letters were correctly addressed and have in fact been tendered to the workman by the postman. In fact, the postman has not at all been produced by the management."
11. It may be noted that while recording that the management has not been able to show that the Digitally signed by LIR No. 5851/16 (new), 387/14 (old) RAMESH 49 RAMESH KUMAR KUMAR Date:
2021.10.04 16:52:55 +0530 letters were correctly addressed, the Labour Court has ignored the cross examination of the workman wherein he was confronted with the address mentioned on these letters and he accepted the address to be correct. If the letters were dispatched at the last known address of the workman which the workman accepts as correct, the Labour Court could not have observed that the management has failed to show that the letters were addressed at the correct address. Further, when these letters were sent at correct address and were returned back with the remarks that the addressee was not available, it was not necessary for the management to produce postman to show that the letters were sent at the correct address. This is more so when there is no cross-examination on this aspect and not even a suggestion is given that the letters were not posted or remarks of the postal authorities were incorrect/procured. A worker working with an employer gives his address and any letter addressed by the employer to him at the address given by the workman would be deemed to be proper service of the letter.
12. In so far as letters sent to the Conciliation Officer are concerned, again only the ground that the Conciliation Officer was not summoned to prove those letters, these letters are ignored. However, the Labour Court, in the process, glossed over a very relevant piece of document, namely, acknowledgment cards which had been received back evidencing the receipt of those letters by the Conciliation Officer. These AD cards were produced and exhibited by the witnesses of the management. The Conciliation Officer, to whom the letters were sent, is a Government officer and letters were sent to him at this office. When the AD cards are received back it would be sufficient proof of service of letter to the Conciliation Officer and, therefore, it was not necessary for the management to produce the Conciliation Officer for proving those letters that too in the absence of any cross-examination. That apart, in cross examination of the workman, he himself admitted that the Conciliation Officer had told him that he had received a letter from the management".
56 The management has placed on record two letters Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 50 KUMAR Date:
2021.10.04 16:53:03 +0530 Ex.WW1/M1 and Ex.WW1/M2, which according to the management were sent to the workman regarding his absence from the duty w.e.f. 01.04.1993. Though the workman admitted in his cross examination that the name and address mentioned in Ex.WW1/M1 and Ex.WW1/M2 bear his correct residential address, however he denied the suggestion that letters Ex.WW1/M1 and Ex.WW1/M2 were duly received. Onus was upon the management to prove that the said letters were received by the workman or they were delivered at his residential address. To prove that the said letters were received by the workman the management has not placed on record any proof regarding the service of said letters upon the workman. Since the management has not placed on record any proof of services of letters upon the workman, therefore, it cannot be said that the letters Ex.WW1/M1 and Ex.WW1/M2 were received by the workman or they were delivered at his residential address. Further the management nowhere in its written statement has stated that they had sent the letters Ex.WW1/M1 and Ex.WW1/M2 to the workman regarding his absence from the duty w.e.f. 01.04.1993. Therefore, in these circumstances, the judgment relied upon by Ld. AR for management in case titled as "Trina Engineering Company (P) Vs The Secretary (Labour) And Ors. (supra)" is not applicable in the facts of the present case.
57 Therefore, keeping in view the discussion made herein above and also keeping in view the law points as cited by Ld. AR for workman, it is held that the workman himself was not Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 51 KUMAR Date:
2021.10.04 16:53:09 +0530 absented from his duty, rather he was absented from the duty due to compelling circumstances and it is further held that the workman had not abandoned his job of his own, rather his services had been terminated by the management illegally and/or unjustifiably, without following the principles of natural justice and in violation of provisions of Sections 25 F, G & H of the Industrial Disputes Act, 1947. Issues no. 3 and 5 are decided in favour of the workman and against the management.
ISSUE NO.4
58 The onus to prove this issue was also upon the management and the management was required to prove that there is no espousal in the present claim by the substantial number of employees of the management as required under Section 2 (k) of the I.D. Act.
59 The management has not led any evidence to prove this issue. The management has also not cross examined the workman on this issue. The testimony of the workman has remained unrebutted on this aspect. Further, the present claim is with respect to termination of services. It is not a general demand case where espousal is required. It appears that the management has taken this objection only for the sake of objection. Therefore, this issue is also decided in favour of the workman and against the management.
ISSUE NO.6 (AS PER TERMS OF REFERENCE) 60 In view of findings of this court on issue no.3 and 5, this issue is also decided in favour of the workman and against the management as this court has already held that the services of the Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 52 KUMAR Date:
2021.10.04 16:53:15 +0530 workman had been terminated by the management illegally and/or unjustifiably, without following the principles of natural justice and in violation of provisions of Sections 25 F, G & H of the Industrial Disputes Act, 1947.ISSUE NO.7 & 8
61 As far as relief part is concerned, the workman has stated in his statement of claim that he had remained unemployed during the entire period from the date of his illegal termination and he is financially put to great hardship and as such he has made prayer that the management be directed to reinstate him in service with full back wages, promotions, all consequential benefits and reliefs from the date of illegal termination of his services by the management. However, this court is of the opinion that since both the parties have lost faith in each other, reinstatement of the workman in service would not be in the interest of both the parties and the compensation in lieu of reinstatement would be a better option. Further, it is not believable that the workman would be sitting idle from around 28 years.
62 This court finds support from the judgment of the Hon'ble Supreme Court of India in case titled Employers, Management of central P & D Inst. Ltd Vs. Union of India & Another, AIR 2005 Supreme Court 633 wherein it was held that:-
"it is not always mandatory to order reinstatement after holding the termination illegal and instead compensation can be granted by the court."
63 Similar views were expressed by the Hon'ble Delhi High Digitally signed by LIR No. 5851/16 (new), 387/14 (old) RAMESH 53 RAMESH KUMAR KUMAR Date:
2021.10.04 16:53:22 +0530 Court in case titled as Indian Hydraulic Industries Pvt. Ltd Vs Krishan Devi and Bhagwati Devi & Ors. ILR (2007) I Delhi 219 wherein it was held that:-
"even if the termination of a person is held illegal, Labour Court is not supposed to direct reinstatement along with full back wages and the relief can be moulded according to the facts and circumstances of each case and the Labour Court can allow compensation to the workman instead of reinstatement and back wages."
64 Coming now to the aspect of compensation. The workman claimed that his last drawn salary was Rs.3004.80/- per month. The management did not dispute this fact in its written statement. Accordingly, the last drawn salary of the workman is deemed to be as Rs.3004.80/- per month. As per appointment letter Ex.WW1/1 the date of appointment of the workman is 30.08.1987. As per termination order Ex.WW1/3, the date of termination is 30.01.1993. Therefore, total length of service of the workman comes to around 05 years 05 and months. The present case is pending before the court since 31.10.2010. Therefore, keeping in view all these facts and also keeping in view of the aforesaid law points, this court deems it appropriate to grant a lump sum compensation to the workman in lieu of his reinstatement. Accordingly, this court grants a lump sum compensation of Rs. 7,00,000/- (Rupees Seven Lacs only) to the workman in lieu of his reinstatement, back wages and all other consequential benefits. The amount of compensation shall be paid to the workman by the management within one month from the date when this award becomes enforceable failing which the amount shall carry an interest @ 7% per annum from the date it Digitally signed by RAMESH LIR No. 5851/16 (new), 387/14 (old) RAMESH KUMAR 54 KUMAR Date:
2021.10.04 16:53:30 +0530 becomes due till the time it is realized. Reference is answered and disposed off accordingly.
65 A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
Digitally signed by PRONOUNCED IN OPEN RAMESH COURT ON 04.10.2021 RAMESH KUMAR KUMAR Date:
2021.10.04 16:53:36 +0530 (RAMESH KUMAR-II) PRESIDING OFFICER:
LABOUR COURT-06 ROUSE AVENUE DISTRICT COURTS/NEW DELHI LIR No. 5851/16 (new), 387/14 (old) 55