Delhi District Court
Workman Filed Statement Of Claim U/S 10 ... vs Trimbak Shankar Karve 2003 Llr 5 on 17 August, 2007
IN THE COURT OF MS. REKHA RANI : POLC - XIII :
KARKARDOOMA COURTS : SHAHDARA : DELHI
I.D. NO.699/06
Date of Institution : 25.07.2005
Award reserved on : 4.8.2007
Date of Award :17.8.2007
BETWEEN
MANAGEMENT OF : SMT. VEENU GULATI M/S GULATI OFFSET
PRINTERS, B-3/11, MODEL TOWN -1, DELHI-09.
AND
ITS WORKMAN : SH. MAHENDER SINGH R/O WZN-13,
SANTGARH, SHAHDARA, DELHI-04
C/O GENERAL MAZDOOR UNION, T-43, KARMPURA NEW DELHI-
15.
AWARD
1. Workman filed statement of claim U/s 10 (4A) of the Industrial
Disputes Act, 1947 (hereinafter called the Act) against M/s Gulati Offset
Printers (hereinafter called the management) pleading therein following
facts :
Worker had been working with the management as Paperman
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for the last 11 years at wages of Rs.4000/- per month. He worked
honestly and diligently and never gave any cause of complaint to the
management. Management did not give him legal facilities such as, ESI,
PF, casual leave, bonus, overtime allowance. Management also did not
issue him any appointment letter nor maintained his service record. At
the time of appointment management obtained his signatures on some
blank vouchers. When worker requested the management to issue
appointment letter to him, management got annoyed and withheld his
wages w.e.f. December 2004 to February 2005 and terminated his
services on 2.3.2005. He complained to the labour office on 3.3.2005.
Management expressed its desire to pay him the wages w.e.f. December
2004 to February 2005 but refused to reinstate him. He sent a demand
notice to the management on 22.3.2005 by registered post. He
requested the management to reinstate him and also return his blank
stamped vouchers and papers which the management got signed from
him. Management neither reinstated him nor replied to his notice nor
paid him his withheld wages.
Termination of his employment is in violation of Section 25 F of
the Act. He is unemployed since the date of termination of his services.
2
He has prayed for his reinstatement with continuity of service
and full back wages.
2. Management contested his claim vide its written statement. It is
stated that claim is not maintainable in view of notification regarding
Section 2-A. As per notification no.F.25(1) Sectt./Lab./03/22 Dated
27.2.2004 an individual workman concerned may with in twelve months
from the date of communication to him of the order of discharge,
dismissal, retrenchment or termination or the date of communication of
the Industrial Disppute (Delhi Amendment) Act-2003 whichever is later,
file his individual dispute directly. It is submitted that the word order
means a "written order" whereas in this case there was neither any
written order nor any oral order to the above effect hence the claim does
not merit any consideration and the same is liable to be dismissed.
3. It is further pleaded that claimant himself absented from his
duties and directly filed the case in the court on the basis of report of
labour inspector dated 7.6.2005. It is stated that as per section 12 (4) of
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the Act conciliation officer is bound to submit his report to the
appropriate government and thereafter the appropriate government is to
consider the same U/s 12 (5) of the Act. In this case conciliation
proceedings commenced and were concluded and instead of following
the procedure worker filed the present claim on the advice of the
conciliation officer which is unlawful.
4. It is further submitted that workman had been working since
1.9.1994 and his last drawn wages were Rs.3030/- per month. It is
denied that his services were terminated. It is stated that he absented
himself from duty w.e.f. 2.3.2005 and did not report back for duty
despite being repeatedly asked to to do so.
5. It is denied that he was not given legal facilities. It is stated that
his name appeared in the attendance register and he was getting payment
of wages on the register. He was given bonus every year. It is further
stated that since there were only four employees with the management so
employees provident fund facility was not applicable. It is denied that
management obtained his signatures on some papers and vouchers at the
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time of his appointment. It is further denied that the workman demanded
letter of appointment so management withheld his wages w.e.f.
December 2004 to February 2005 and terminated his services on
2.3.2005. It is submitted that management wanted to deliver a notice for
retirement from service on 2.3.2005 to his co-worker Didar Singh who
refused to receive it. It is further stated that workman with another co-
workers informed the management that in case Didar Singh was retired
for whatever reasons they would also not work and left the management
on 2.3.2005.
It is denied that management withheld wages of the workman. It
is stated that management paid wages regularly till January 2005 and had
paid wages for the month of February 2005 in the labour office. It is
further stated that labour inspector visited the management and he was
apprised that proprietor of the management is a widow who is struggling
with her business after the death of her husband and that management
had not terminated services of the workman. On the contrary workman
was absent from duty since February 2005. Management submitted its
reply to the labour inspector on 11.3.2005 and labour inspector also
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submitted his report which is self-explanatory. It is denied that any
enquiry was needed when the workman himself remained absent from
duty and refused to join. It is denied that workman is unemployed. It is
stated that he alongwith his co-workers are running their own printing
press at Karol Bagh, New Delhi.
6. Following issues were framed :
1. Whether the services of the workman was terminated on
2.3.2005 unlawfully and unjustifiably as alleged in para
2 of the statement of claim? OPW
2. Whether the claim is not maintainable in view of the
preliminary objections 1 & 2 as raised in the written
statement?OPM
3. Whether the workman remained absent w.e.f. 2.3.2005
and never reported back for duty? OPM
4. Relief.
7. Workman examined himself as WW-1 and thereafter closed his
evidence. Management examined Smt. Veenu Gulati as MW-1 and
thereafter closed its evidence.
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8. I have carefully perused the case file and also heard Ld.
Authorised Representative for both parties.
ISSUE NO. 2
9. It is stated on behalf of the management that after
commencement of conciliation proceedings the conciliation officer was
to submit his report to the appropriate government as per Section 12 (4)
and thereafter appropriate government was to consider the same as per
Section 12 (5) of the Act. On the contrary the conciliation officer
wrongly advised the workman to file claim U/s 10 (4A) of the Act.
There is substance in the contention of the management.
10. Ld. AR for management has further contended that worker can
file claim under section 10(4A) of the Act directly in the court only if
there is a written order of discharge, dismissal, retrenchment or
termination as the word order means written order and since there is no
written order of termination, the claim is not maintainable. There is
nothing in the Act which supports the contention of the management that
the order means written order. Communication of discharge, dismissal,
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retrenchment or termination may be oral also.
ISSUE NO. : 1 & 3
11. These are connected issues and thus taken up together for
adjudication.
12. Workman has pleaded that management did not give him legal
facilities such as appointment letter, attendance card, bonus, PF and ESI
facility and also obtained his signatures on blank stamped vouchers. It is
stated that when he demanded those blank stamped papers and also
issuance of appointment letter management terminated his services on
2.3.2005.
13. Management denied that it did not give legal facilities to the
workman as alleged. It is stated that his name was on the attendance
register and he was paid bonus every year. It is stated that PF facility
was not applicable to the management as it had only four employees. It
is denied that the management obtained his signatures on blank stamped
papers and vouchers. It is denied that management terminated his
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services on 2.3.2005. It is stated that management wanted to retire
Didar Singh as he had attained the age of 65 years and was finding it
difficult to work. Then the workman alongwith his other co-workers
namely Mahender Singh and Ravinder Singh stated that if Didar Singh
would retire they would also not work and left the management. It was
also pleaded that as the services of the workman were never terminated
management offered workman to join duty immediately failing which it
shall be presumed that he only wants to indulge himself in baseless and
frivolous litigation (para 6 of written statement).
14. So whereas the workman has alleged unlawful termination of
his services, management has alleged that he abandoned his employment
by remaining absent from duty unauthorisedly.
15. Perusal of the evidence adduced by both sides show that there is
no substance in the case of the workman.
16. During his cross-examination it was put to the workman that his
attendance was marked on the attendance register and he was given ESI
9
facility. It was also put to him that he was given bonus every year and
that PF scheme was not applicable to the management. The workman
admitted these facts to be true. The relevant extract of his cross-
examination is re-produced below :
"It is correct that my attendance used to be marked on an
attendance register and I was given ESI Facility. The
scheme of Provident Fund was not applicable on the
management. I used to get bonus from the management.
It is correct that my name wasthere on the attendance
register from the day I was recruited in the
establishment."
17. So his plea is falsified that management did not maintian his
service record nor gave him bonus, ESI, PF facility or attendance card.
18. Workman further alleged that management obtained his
signatures on blank stamped papers and vouchers at the time of his
appointment and when he requested the management to cancel those
documents, management terminated his services. He did not name any
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individual in his statement of claim who allegedly obtained his
signatures on blank stamped papers and vouchers. In his cross-
examination it was put to him that MW-1 Smt. Veenu Gulati proprietor
of the management never obtained his signatures on any blank
documents, which he admitted to be true. He also admitted that he did
not lodge any kind of complaint anywhere against the management for
obtaining his signatures on blank papers. Relevant extract from his
cross-examination is as under :
"The present proprietor Ms. Veenu Gulati never obtained
my signatures on blank documents. It is correct that till I
worked with the management I did not lodge any kind of
complaint against the management to any authority. It is
correct that I received February 2005 wages before the
labour officer."
Neither in his statement of claim nor anywhere else workman
named anybody from the management who forced him or induced him to
sign blank documents.
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19. So the workman has not been able to show the circumstances
which led to termination of his services. The circumstances alleged were
denial of legal facilities and taking his signatures on blank documents as
discussed above. He has not been able to prove the same.
20. Case of the management on the contrary is that it never
terminated his services. Rather he himself remained absent from duty
w.e.f. 2.3.2005.
21. Management has consistently pleaded that it wanted to retire
Didar Singh as he had become old and was finding it difficult to work.
22. Management placed on record its reply to the labour inspector
which was proved as Ex.MW1/1 dated 16.3.2005. It was stated in the
reply that Didar Singh had attained the age of 65 years and he showed
his inability to work, so the management asked him to retire. This fact
was not appreciated by his co-workers namely Jeet Singh, Mahender
Singh and Ravinder Singh. They stated that in case Didar Singh is
retired they would also not work. MW-1 Smt. Veenu Gulati proved
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these facts in her testimony. Management repeated the same plea in
their reply to the demand notice of the workman which was proved as
Ex.MW1/3 dated 4.4.2005. It is reiterated that Didar Singh was asked to
retire at the age of 65 years as it was difficult for him to work but the
workman also stopped work and left. It was pleaded that the
management did not terminate his services. It is also pleaded that the
management asked him to report for duty even in front of the labour
inspector. Management once again called upon him to report to work.
The witness was not cross-examined on this point when she was in the
witness box. It was not put to her that her plea of retirement of Didar
Singh on attaining the age of 65 years was not true and that the workman
did not strike work.
23. Workman pleaded in para 4 of his statement of claim that on
3.3.2005 he complained to the labour office. Labour Inspector visited
the management. Management refused to pay his wages w.e.f.
December 2004 to February 2005 and also refused to reinstate him in
front of the labour inspector. Worker in his demand notice Ex.WW1/2
has also written that the management refused to take him back on duty as
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per report of the labour inspector. Even in statement of claim filed
before the conciliation officer which was proved as Ex.WW1/4 workman
wrote that labour inspector had given report to the effect that the
management refused to take him back on duty.
24. Report of the labour inspector proved by the workman himself
as Ex.WW1/5 may be referred to. At page 2 the labour inspector
reported that it advised Jeet Singh and Mahender Singh to go back to
work but they stated that they would not go back to work without
payment of full back wages. Worker in his cross-examination also
admitted that he refused to join duty unless and until he was paid his full
back wages for the period of enforced unemployment. The relevant
extract of his cross-examination is as under :
"It is correct that in the labour office I declined to join
back my duty till I get my back wages of the
unemployed period. Ex.WW1/M1 was given to me by
the conciliation officer. Ex.WW1/M2 to Ex.WW1/M4
are the letters sent by the management and received at
our union office."
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25. Workman in his cross-examination admitted that he was not in
possession of any such report of the labour inspector which he has
mentioned in Ex.WW1/2 and WW1/4 at point A that the management
refused to take him back on duty.
26. Workman himself in his cross-examination stated that he did not
go to the management after 2.3.2005 when his services were terminated.
Then I do not understand as to how his AR suggested to the management
witness in her cross-examination that workman approached the
management after 2.3.2005 but the management refused him duty.
27. Even in his cross-examination workman again stated that he
would not resume duty unless and until management paid his full back
wages.
"Even today I have the same stand regarding joining my
duty which I took in the labour office. Vol. My
complete wages were not paid in the labour office."
15
28. Worker admitted that he had received letters of the management
Ex.WW1/M2 to WW1/M4. Ex.WW1/M2 is reply of the management to
the notice of the workman. It is dated 19.4.2005. It was stated in this
letter :
"The other two i.e. Sh. Mahinder and Sh. Jeet Singh be
also advised properly because they themselves refused
to join back till they are paid their back wages."
29. In Ex.WW1/M2 dated 19.4.2005 the management wrote that its
proprietor is widowed woman working with only four employees and it
was impossible for her to work if she terminated all the four employees.
She called upon Didar Singh and Ravinder to settle their accounts. She
reiterated that employment of Mahender Singh and Jeet Singh was never
terminated. She offered them to come back on duty even in fron of the
labour inspector but they refused unless they were given full back
wages. This fact is not disputed by the workman that he did not want to
resume duty unless and until he is paid full back wages for the period of
his unemployment after 2.3.2005.
16
30. Worker has failed to prove that his services were terminated on
2.3.2005 and he has remained unemployed since then. Management has
disputed the same and has alleged that he alongwith his three co-workers
is running his own printing press at Karol Bagh, Delhi. Management
offered him to come back on duty even in front of the labour inspector as
is clear from the report of the labour inspector proved by the workman
himself as Ex.WW1/5. Even as per her letter dated 19.4.2005
Ex.WW1/M2 management asked the General Secretary of the union of
the workman to advice him properly to resume duty. The same fact is
repeated by her in her reply to the demand notice vide Ex.WW1/M2
dated 19.4.2005.
31. In view of aforesaid it is clear that the management never
terminated services of the workman on 2.3.2005 as alleged. Rather
management called upon the workman to join duty but he wanted his full
back wages to be paid first. If the workman was sitting idle and was
finding difficult to find alternative work, as alleged he would have
resumed duty by leaving the issue of payment of back wages to be
adjudicated in the court. The fact that he refused to join duty unless
17
and until his full back wages were paid shows that he was not without
means of livelihood as alleged by him.
In Sonal Garments vs. Trimbak Shankar Karve 2003 LLR 5
the facts of the case were similar to the present case. The workman pleaded
that he was terminated from the employment w.e.f. 23.4.1991 orally
without any notice or payment of retrenchment compensation. The
employer pleaded that the workman was never terminated from
employment but he remained absent from February 1991. It was stated in
the written statement that if the workman was really interested in resuming
duty he could do so. It was the specific case of the employer that worker
was never terminated by him but he remained absent unauthorisedly and he
was welcome to join his duties. The Labour Court held that the workman
was illegally terminated and he was held entitled to reinstatement with full
back wages and continuity of service. Hon'ble High Court held that award
of granting of full back wages was totally erroneous as offer of the
employer was not heeded and accepted by the workman and he never
reported for work. It was observed :
"Whenever the employer offers to reinstate the workman
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at any stage of the dispute or proceeding and if the
workman does not accept the offer even without prejudice
to his rights and contentions, he will not be entitled to
claim for reinstatement and he will also be not entitled to
claim any back wages from the date of such offer,
conditional or unconditional."
Workman pleaded in para 7 of his statement of claim that he
was not given any opportunity of hearing nor any enquiry was held againt
him. As such termination of his services is unfair labour practice. It is
proved by the management that it repeatedly made unconditional offer to
the workman to join duty but he did not respond. What more was required.
The expression opportunity of hearing was explained in
University of Delhi vs. Suresh Chand 2007 LLR 344 wherein workman
was working as Chawkidar. He did not turn up for duty w.e.f. 10.4.1995
onwards. The employer sent memos to the workman about his
unauthorised absence and called upon him to join duty on 28.4.1995,
6.6.1995 and 6.7.1995 but the workman did not join duty. On industrial
19
dispute being raised by the workman against alleged termination of his
services w.e.f. 1.12.1995 the Tribunal held that it was duty of the
management to conduct enquiry against the workman following the
principles of natural justice and since the management did not conduct
enquiry, the Tribunal granted reinstatment with full back wages. Our own
Hon'ble High Court quashed the award and observed :
"where respondent's absence was an undisputed fact and
the medical certificates showed that he was suffering from anxiety and depression and it was also undisputed that he had not reported to CMO, despite a direction by the University, no further enquiry need be conducted into the facts and the only thing to be seen was the explanation of the respondent . When no explanation came forth from the respondent despite repeated notices and memos by the university, I consider that the principles of natural justice had been sufficiently complied with by the University. I consider thaat there are very few persons today in Delhi or in India who are not suffering from one or the other anxiety or depresssion. If such medical certificates are 20 acknowledged as valid medical certificates for long unauthorised absence, I consider no work can be done in any of the government departments. In fact, the over protectionism which is being provided to the government employees and other employees, has resulted into total fall in the efficiency and work culture in the government Offices. The appointment to the Government services is being considered by the employees as a license to thwart the work culture and discipline of the organisation." In Madhu Bala Sharma (Smt.) vs. Central Govt. Industrial Tribunal-cum-Labour Court & Anr. 2007 LLR 239 the employee was absent from duty w.e.f. 20.4.1992. She did not care to make any application for leave and despite notices casually gave explanation. Her counsel argued that once the worker had sent her explanation thereby saying that she was interested in job the employer should not have taken a view that she was not interested in job. Hon'ble High Court observed that an explanation given by the workman was casual and there was enough to infer that she was not interested in the job.
21
"What Mr. Buther has ignored is that explanation given should satisfy the bank that she was interested in service with the bank. As mentioned in the impugned award, there were reasons from which the bank could infer that the explanation was not satisfactory. Even after the expiry of 30 days of the notice, the petitioner did not care to make anyother application for leave. The petitioner admittedly even after the expiry of 30 days did not send to the management any documents showing that she was actually ill or was under medical advice not to join her duties. In my opinion the management could rationally and reasonably take the view that the explanation was not bona fide and that the petitioner was not interested in continuing with the job."
Workman in the present case is on a worse footing. Admittedly he did not report to the management at all after 2.3.2005 when his services were allegedly terminated. He did not respond to the offer of the management to resume duty. The management repeatedly informed him 22 that his services were never terminated by it. Even then he did not report for duty to the management. So there was sufficient reason to infer that he was not interested in continuing with the job.
In New Indian Co-operative Bank Ltd. vs. Shankar B. Bangera 2007 LLR 149 the worker was absent from duty w.e.f. 2.12.1992. employer wrote letters to him to join duty but he failed to comply. Ultimately the employer struck off his name from the muster rolls. Worker raised an industrial dispute complaining that termination of his services was illegal for want of disciplinary enquiry. Tribunal passed award in favour of the workman. Hon'ble High Court set aside the award and observed :
"What was required of the petitioner was to give reasonable opportunity to the respondent to report for work or to explain his absence, and the petitioner has done the same and that was sufficient compliance of principles of natural justice - The order of reinstatement is unsustainable"
In Beemakunju vs. F.C.I. 2001 LLR 743 it was held that 23 abandonment of employment can be infered from the conduct of the workman if he has been put to notices regarding his unauthorised absence and called upon to join duty and he has failed to comply with the same. It was held that trend of the decisions of the Hon'ble Apex Court shows that it is not mandatory to conduct domestic enquiry in all the cases of unauthorised absence. It was observed that failure of the workman to report for duty despite opportunity to join within stipulated time or explain the position to the satisfaction of the management amounts to misconduct and there is no need to hold an enquiry in such cases.
In Competition Printing Press vs. Shriut Jaiprakash Singh and another 2001 LLR 768 the worker alleged that employer had illegally terminated his services w.e.f. 10.11.1981 whereas employer pleaded that he was absent from duty unauthorisedly w.e.f. 10.11.1989. The labour Officer had called both the parties on 29.11.1989 to resolve their dispute. The employer submitted before him that he had never terminated the services of the workman and he could report for work. It was borne out from the record that the workman refused to get reinstated without back wages from 10.11.1989 to 29.11.1989. The employer was not willing to pay the 24 amount of back wages. The workman persisted in his demand that reinstatement with back wages. It was observed that the workman by not accepting the offer of the reinstatement had abandoned employment and as such was not entitled to reinstatement and back wages. Hon'ble Court held:
"Had it been that the petitioner employer terminated the employment of the woriman, no offer of reinstatement would have been made to the workman throughout constantly and continuously even till the stage of the proceedings before the Labour Court. They have placed these facts on record in writing. Even the workman had admitted in his oral evidence that such offers were made to him by the employer and he did not accept the same as there was no offer of back-wges and that he was not prepared to join his duty without back-wages. This very fact of adamant and obstinate attitude on the part of the workman clearly indicates that he himself had abandoned the employment by remaining absent from 10.11.1989 for the reasons best known to him and under wrong advice he approached the Government machinery with ulterior 25 motives to extract some money if possible. In my opinion no genuine and bonafide workman who was aggrieved by an illegal order of termination would deny the offer of reinstatement and would not readily give up the valuable job for the sake of few days back-wages. Alternatively the workman could have accepted reinstatement before the Government Labour Officer and even before the Conciliation Officer praying to refer the dispute restricting to the entitlement of the back wages as he was already reinstated during the proceedings before the Government Labour Officer or the Conciliation Officer as the case may be. Lastly he could have accepted the offer of reinstatement made by the petitioner employer in the written statement even before the Labour Court. He could have made such an application to the Labour Court reserving his right to get back wages and joining the employment without prejudice to the aforesaid right. The workman did not do any such thing which leaves no manner of doubt that the workman never intended to get 26 employment under the petitioner. I have therefore absolutely no doubt that the petitioner employer had not terminated the employment of the respondent workman and that he himself had remained absent from employment from 10.11.1989 and lodged a false complaint with the Government Labour Officer and continued the litigation vexatiously mala fide to extract some money from the employer if possible, but from the conduct of the petitioner employer it is clear that in principle he was satisfied that since he had not terminated the employment of the workman why he should pay any amount towards the back wages to the workman. I am not able to blame the petitioner employer in any manner. Accordingly to me, the conduct of the workman was totally unreasonable in refusing to accept the reinstatement without back wages on the first date of hearing before the Government Labour Officer."
The present case is identical. Here also the management had 27 been repeatedly saying that it never terminated the services of the workman and workman is free to join duty but the workman instead of joining duty insisted on back wages being paid first.
In another similar case entitled Mukesh Khanna vs. Chandigarh Administration, Chandigarh & Another 2000 LLR 168 the workman challenged his termination. The employer denied that he terminated his services. He alleged that workman never wanted to work as he was already engaged in his own business. In the Court counsel for employer stated that if workman was really interested in job he could report for duty. Workman submitted joining report on 29.3.1999 but thereafter did not work. Hon'ble High Court observed that the workman was not really interested in job and he was interested only in arrears of back wages without work. It was held :
"We are satisfied that the petitioner is really not interested in the job and that he is actually wanting to grab the arrears of salary on one pretext of the other. In any event even when the petitioner was given an opportunity to join duty in March 1999 he submitted the joining report "for a single day". This single act puts the 28 matter beyond any shadow of doubt about the real intentions of the petitioner. It is clear that the petitioner is himself not attending to his duties. He is not interested in the job. He wants to make money out the case. The provisions of Industrial Disputes Act are meant to help the needy. These are not to be invoked to help a person who is greedy. We are satisfied that the petitioner belongs to the latter category and is wanting to make money out of the Management, without doing any work. We cannot help him in doing so."
In the present case workman never accepted the offer of the management to report for duty. He only wanted back wages. The court cannot become instrument in helping him in his malafide motives of making money without work.
32. In view of aforesaid both the issues are decided in favour of the management and against the workman.
29 ISSUE NO. : 4
33. In view of the aforesaid, I hold that the workman is not entitled to any relief. File be consigned to record room.
Announced in open court
on 17.8.2007 PRESIDING OFFICER
LABOUR COURT NO. XIII
KARKARDOOMA COURTS: DELHI
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