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Himachal Pradesh High Court

M/S Krishna Paper Board Industries vs Sh. Rakam Singh And Another on 27 October, 2015

Bench: Chief Justice, Tarlok Singh Chauhan

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No. 12 of 2009 .

Reserved on: 13.10.2015 Decided on: 27.10.2015 M/s Krishna Paper Board Industries ...Appellant.

of Versus Sh. Rakam Singh and another ...Respondents.

rt Coram The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.

Whether approved for reporting? Yes.

For the appellant: Mr. Bimal Gupta, Senior Advocate, with Mr. Vineet Vashisth, Advocate.

For the respondents: Mr. Deepak Kaushal, Advocate, for respondent No. 1.

Mansoor Ahmad Mir, Chief Justice.

1. This Letters Patent Appeal is directed against the judgment and order, dated 22.10.2008, made by the learned Single Judge/Writ Court in CWP No. 1785 of 2007, titled as Rakam Singh versus Presiding Officer, H.P. Industrial Tribunal ::: Downloaded on - 15/04/2017 19:14:37 :::HCHP ­: 2 :­ and another, whereby the writ petition filed by the respondent .

came to be allowed and the award made by the H.P. Industrial Tribunal­cum­Labour Court, Shimla (for short "Labour Court") was set aside (for short "the impugned judgment").

Brief facts:

of

2. Rakam Singh­respondent was engaged as Fitter by the writ respondent­appellant in the year 1996, sustained rt injuries, reported back on 07.11.1997, but was permitted to join on 17.11.1997. He raised a Demand Notice and Reference was made on 20.12.2001, which is as under:

"1. Whether the termination of Sh. Rakam Singh S/o Sh. Janga Ram w.e.f. 1.11.1999 by the General Manager, Krishna Paper Board Industries, Kala Amb District, Sirmour, H.P. without complying with the Section 25­F of the I.D. Act, 1947 is legal and justified? If not, to what service benefit and relief the concerned workman is entitled to?

2. Whether the plea of the General Manager, Krishna Paper Board Industries, Kala Amb, District Sirmour that Shri Rakam Singh S/o Shri Janga Ram workman had left the job of huis own accord w.e.f. 1.11.1999 is justified? If not, its legal effects as per I.D. Act, 1947?"

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3. The respondent filed a claim and urged that his .

retrenchment w.e.f. 1.11.1999 was not in accordance with the Industrial Disputes Act, 1947 (for short "I.D. Act"), was resisted by the appellant. Parties led evidence and the Labour Court, vide award, dated 05.07.2007, decided both the issues against of the respondent and in favour of the appellant, reference was answered and the claim was dismissed.

rt

4. The said award was the subject matter of the writ petition. The learned Single Judge/Writ Court, vide the impugned judgment, held that the respondent was not gainfully employed, declared his termination illegal and also directed his reinstatement with back wages.

5. Learned Senior Counsel for the appellant argued that the Writ Court has travelled beyond its power and competence by exercising the jurisdiction of the Appellate Court, which is not vested with it, and the impugned judgment is illegal. Further argued that the Writ Court has also not taken into account the conduct of the respondent while in service, during the pendency of the Reference and even before the Writ ::: Downloaded on - 15/04/2017 19:14:37 :::HCHP ­: 4 :­ Court.

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6. The question is ­ whether the Writ Court can set aside the findings of the Labour Court, which are based on evidence? The answer is in the negative for the following reasons:

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7. The Labour Court determines the Reference after recording the evidence, oral as well as documentary and after rt hearing the parties, by making the award.

8. The Labour Court came to the conclusion that the respondent was gainfully employed with M/s Vashisht Chemist Kala Amb, M/s Saboo Cylinder Kala Amb & M/s Crystal Engineering Kala Amb and has left his job on his own. It is apt to reproduce para 9 of the award made by the Labour Court herein:

"9. From the scrutiny of the oral as well as documentary evidence, there is no dispute about the appointment of the petitioner by respondent. It has also been proved that the petitioner was appointed as Fitter and due to injury, he was referred for treatment to PGI Chandigarh where he remained admitted. The petitioner received 45% disability as per disability certificate Ex. PW­1/A. The fitness certificate is Ex. PW­1/C. The only plea of ::: Downloaded on - 15/04/2017 19:14:37 :::HCHP ­: 5 :­ the petitioner is that he was nOt permitted to join back his duty despite medical .

certificate produced by him. The petitioner himself has admitted in his cross­examination that he was allowed to join on 17.12.1997. It has also been proved that the petitioner was doing the welding work but due to injury in his right eye, he was unable to do welding work. It has been alleged by the respondent that of the petitioner is already gainfully employed with M/s Vashisht Chemist Kala Amb, M/s Saboo Cylinder Kala Amb rt and M/s Crystle Engineering Kala Amb and he himself has left the job. The case was listed for conciliation on 9.4.2007, 3.5.2007 and 22.6.2007 but the petitioner failed to appear on 3 dates and ultimately on 22.6.2007, he dis­appeared from the Court. It has been proved that after receiving injury, the petitioner is getting Rs. 600/­ as pension from ESI. The petitioner has failed to prove that he has furnished his medical certificate alongwith his application when he reported for duties. He has also failed to prove that he has not been gainfully employed with the above named firms. It has been proved that the petitioner has left the job after receiving injury on his right eye, hence section 25­F of the ID Act, 1947 are not attract in the present case and issue No­1 is decided against the petitioner and in favour of the respondent."

9. The Labour Court, after examining the evidence, held that the respondent has failed to prove the following points:

(i) That he has furnished the medical ::: Downloaded on - 15/04/2017 19:14:37 :::HCHP ­: 6 :­ certificate alongwith the application/ joining report;

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                      (ii)    That    he    was      not    gainfully
                      employed with any forum; and





                      (iii)    That        his     services       were




                                           of
                      terminated.

10. This finding has been returned on the basis of rt evidence. It was not the case of the respondent that the Labour Court has taken into account inadmissible evidence or has returned its findings without any basis.

11. The Apex Court in the case titled as Bhuvnesh Kumar Dwivedi versus M/s. Hindalco Industries Ltd., reported in 2014 AIR SCW 3157, held that the findings of fact reached by Tribunal as a result of the appreciation of evidence cannot be questioned in writ proceedings and the Writ Court cannot act as an Appellate Court. It is profitable to reproduce para 18 of the judgment herein:

"18. A careful reading of the judgments reveals that the High Court can interfere with an Order of the Tribunal only on the procedural level and in cases, where the decision of the lower ::: Downloaded on - 15/04/2017 19:14:37 :::HCHP ­: 7 :­ courts has been arrived at in gross violation of the legal principles. The .

High Court shall interfere with factual aspect placed before the Labour Courts only when it is convinced that the Labour Court has made patent mistakes in admitting evidence illegally or have made grave errors in law in coming to the conclusion on facts. The High Court granting contrary of relief under Articles 226 and 227 of the Constitution amounts to exceeding its jurisdiction conferred upon it. rt Therefore, we accordingly answer the point No. 1 in favour of the appellant."

12. The same view has been taken by the Apex Court in the case titled as Iswarlal Mohanlal Thakkar versus Paschim Gujarat Vij Company Ltd. & Anr., reported in 2014 AIR SCW 3298.

13. This Court has also laid down the same principle in a batch of writ petitions, CWP No. 4622 of 2013, titled as M/s Himachal Futuristic Communications Ltd. versus State of HP and another, being the lead case, decided on 04.08.2014. It is worthwhile to reproduce para 13 of the judgment herein:

"13. Applying the test to the instant case, the question of fact determined by the Tribunal cannot be made subject matter of the writ petition and more so, ::: Downloaded on - 15/04/2017 19:14:37 :::HCHP ­: 8 :­ when the writ petitioner(s) have failed to prove the defence raised, in answer to .

the references before the Tribunal. "

14. The Labour Court has recorded in para 9 of the award, quoted hereinabove, that it tried to settle the dispute, learned counsel for the parties were directed to cause the of presence of the parties and was listed for conciliation on 09.04.2007, 03.05.2007 and 22.06.2007, but the respondent failed rt to appear on the said dates. The respondent has not made any averment about the same in the writ petition. Thus, the conduct of the respondent assumes great importance.

15. The Apex Court in the case titled as Uttar Pradesh State Textile Corporation Limited versus Suresh Kumar, reported in (2011) 15 Supreme Court Cases 180, held that the conduct of an employee is also relevant. Para 7 of the judgment reads as under:

"7. The other question relates to the back wages for a period of one year and five months. We are of the opinion that the grant of back wages is a matter of discretion vested in the Court and the conduct of an employee is an extremely relevant factor on this aspect. The financial status of the employer must also be kept in mind. We are therefore of ::: Downloaded on - 15/04/2017 19:14:37 :::HCHP ­: 9 :­ the opinion that the conduct of the Respondent and the financial status of .

the appellant does not justify the payment of any back wages."

16. It is also apt to record herein that in terms of order, dated 18.03.2009, passed in the LPA, the impugned judgment of was stayed so far it relates to payment of back wages only, but despite that fact, the respondent had not joined the duties.

rt Thereafter, an application, being CMP No. 227 of 2012, was moved on 20.03.2012, by the appellant with the permission to bring on record the fact that the respondent was still working with M/s Shree Parwati Steel & Alloys, Village Kheri, Trilokpur Road, Kala Amb, District Sirmaur (H.P.). The respondent was asked to file reply vide order, dated 03.05.2012. It is pertinent to reproduce the relevant portion of the said order herein:

"CMP No. 227 of 2012

Reply to the application not filed. Be filed within three weeks from today. Respondent, Rakam Singh shall clearly indicate whether he has received any monetary benefit from M/S Shree Parwati Steel & Alloys, Village Kheri, Trilokpur Road, Kala­Amb, District Sirmaur (H.P.) and if so, for what purpose.

List on 28th June, 2012."

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17. He has filed the reply/affidavit and has not denied .

the factum of receipts, dated 09.10.2008, 09.11.2008 and 08.12.2008 filed alongwith CMP No. 227 of 2012. In this backdrop, relevant portion of the reply to paras 11 and 12 in CMP No. 227 of 2012 is reproduced herein:

of "............It is further denied that the respondent has actively worked rt anywhere else including M/s. Parvati Steels & Alloys and the Annexure 'M' belongs to some other person. Moreover, on face of the Annexure 'M' prima­facie it is not clear that the same are salary slips or the payment for some other purpose."

18. It was for the respondent to explain as to whether these receipts are salary slips or receipts of any other dues. He has replied evasively, thus, is admission on his part, or is suggestive of the fact that he has concealed the material facts.

19. In the writ petition, the appellant has specifically denied para 3 of the writ petition wherein the respondent has averred that his services were orally terminated on 01.11.1999 without issuing any notice to him. It is apt to reproduce para 3 of the reply on merits filed by the writ respondent­appellant herein:

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­: 11 :­ "3. That the contents of para 3 as alleged are wrong, hence denied. In .

fact the petitioner at his own on 31.10.1999 left the job. His services were never terminated by the replying respondent. It is humbly submitted that at the time when the petitioner showed his intention not to work he was paid all his wages upto 31.10.1999 on 1.11.1999 whereas the replying of respondent used to pay salary to his workers by 7th of every month. Since the petitioner showed his intention to leave rt the job from 1.11.1999 he was paid the entire wages on 1.11.1999 itself. Further averments in this paragraph so far approaching the Labour Tribunal by the petitioner are matter of record. However, it is denied that services of the petitioner were orally terminated by the replying respondent."

20. The respondent has neither filed any rejoinder nor any affidavit in response to the averments contained in para 3 of the reply, have remained unrebutted. The said pleadings are corroborated by the evidence recorded by the Labour Court read with the findings recorded by it.

21. Learned Senior Counsel for the writ respondent­ appellant, while relying upon the judgment rendered by the Apex Court in the case titled as Vijay S. Sathaye versus Indian Airlines Limited and others, reported in (2013) 10 ::: Downloaded on - 15/04/2017 19:14:37 :::HCHP ­: 12 :­ Supreme Court Cases 253, argued that the respondent had .

chosen to remain absent for a long period, thus, it was a case of voluntary abandonment of service.

22. It is apt to reproduce paras 11 to 13 of the said judgment herein:

of "11. Even otherwise, the petitioner was asked to continue in service till the rt decision is taken on his application.

However, he did not attend the office of the respondents after 12.11.1994. In view of the above, as the petitioner had voluntarily abandoned the services of the respondents, there was no requirement on the part of the respondents to pass any order whatsoever on his application and it is a clear cut case of voluntary abandonment of service and the petitions are liable to be dismissed.

12. It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntarily abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer.

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13. In M/s. Jeewanlal (1929) Ltd. v. Workmen, AIR 1961 SC 1567, this .

Court held as under:

"......there would be the class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee."

of (See also: Shahoodul Haque v.

Registrar, Coop. Societies, AIR 1974 SC rt 1896."

23. The appellant has specifically averred before the Labour Court that the services of the respondent were not terminated, but he had left the job of his own and has further stated that the averments contained in the claim of the respondent were contradictory. It is apt to reproduce paras 4 and 5 of the reply filed by the appellant before the Labour Court herein:

"4. Contents of para No. 4 of the petition are palpably false and the same are denied as such. The petitioner has himself contradicted his averments of this paragraph int he succeeding paragraph No. 5 of the petitioner wherein he has alleged that he was verbally retrenched with effect from 1­ 11­1999. This mean that upon his a report, he was taken in service with effect from 17­12­1997 and remained employed till 31­10­1999. The ::: Downloaded on - 15/04/2017 19:14:37 :::HCHP ­: 14 :­ petitioner has paid for this period his wages.

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5. Contents of para 5 of the petition are incorrect. Hence the same are denied. The petitioner himself left the job on 31­ 10­1999 and received his full and final settlement of wages on 1­11­1999. In pursuance whereof, the petitioner was paid his bonus on 6­11­1999.

of Simultaneously, the petitioner applied for pension under E.S.I Scheme claiming therein to be disabled to do his rt job and subsequently, he was granted disability pension from E.S.I of which, he is still in receipt of. Now, the petitioner has become dishonest and wants to claim alleged re­instatement with alleged consequential benefits, whereas the facts are otherwise as submitted in the preceding paragraphs."

24. The Writ Court was not within its power, competence and jurisdiction, in view of the discussions made hereinabove, to overturn the findings of the Labour Court and grant the relief, which is not permissible in view of the given facts of the case.

25. Having glance of the above discussions, the Labour Court has made the award, which is well reasoned, speaking one and based on evidence, thus, merits to be upheld.

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26. Keeping in view the discussions made hereinabove, .

the impugned judgment is set aside, the appeal is allowed, the writ petition is dismissed and the award made by the Labour Court is upheld.

27. Accordingly, the appeal is allowed alongwith all of pending applications.

                         rt                       (Mansoor Ahmad Mir)
                                                     Chief Justice

                                                 (Tarlok Singh Chauhan)
                                                         Judge
    October 27, 2015



          ( rajni )







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