M/S PAUL GARMENTS vs KALI CHARAN @ MUKESH

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of order : 13th March, 2024
+ W.P.(C) 1446/2019
M/S PAUL GARMENTS ….. Petitioner
Through: Mr.Om Prakash Gupta, Advocate

versus

KALI CHARAN @ MUKESH ….. Respondent
Through: Mr.J.K.Sharma, Mr.N.K.Verma and Ms.Dimple, Advocates

CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

ORDER

CHANDRA DHARI SINGH, J (Oral)
1. The instant writ petition under Article 226 of the Constitution of India has been filed on behalf of petitioner seeking the following reliefs:-
“a. An appropriate writ or writs, order/ orders, direction/directions to set aside the impugned award dated 3.12.2018 rendered by Sh. Umed Sigh Grewal, Pilot court/POLC- XVII, Dwarka Courts in L.I.R. No. 1583 of 2018.
b. Pass such other or further orders which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.”

2. The respondent workman had raised an industrial dispute against the petitioner on the ground that he was working since the last 5 years at the last drawn salary of Rs.8,800/- per month and his service was terminated illegally on 9th July, 2017.
3. The petitioner has filed the present petition challenging the award dated 3rd December, 2018, passed by the learned Labour Court in case bearing LIR no. 1583/2018, wherein, the learned Court below held that the respondent workman was illegally terminated and further directed the petitioner to pay lumpsum compensation of Rs. 1,75,000/- to the respondent workman.
4. Learned counsel appearing on behalf of the petitioner submitted that the impugned award is liable to be set aside since the same has been passed without taking into consideration the entire facts and circumstances.
5. It is submitted that the petitioner never terminated the respondent’s services rather it was the respondent who remained absent after 5th July, 2017 without any authorization.
6. It is further submitted that the learned Labour Court ought to have considered that the petitioner had offered the workman to resume his duties, however, the respondent did not show his willingness for the same.
7. It is submitted that the learned Labour Court has wrongly held that the management should give notice to the workman in case of abandonment whereas notice by the management is not mandatory in case of absenteeism without any intimation.
8. Therefore, in view of the foregoing submissions, it is submitted that the present petition may be allowed and the reliefs be granted as prayed.
9. Per Contra, learned counsel appearing on behalf of the respondents vehemently opposed the instant petition submitting to the effect that the same being devoid of any merit is liable to be dismissed..
10. It is submitted that the impugned award has been passed in accordance with the law and there is no illegality or irregularity of kind thereto.
11. It is submitted that the petitioner illegally terminated the workman’s services on 9th July, 2017 and withheld the earned wages from 1st July, 2017 to 9th July, 2017; without prior notice and payment.
12. It is submitted that the above action of the management is covered under the definition of retrenchment as provided under Section 2 (oo) and the management violated the provisions of Section 25F of the Industrial Disputes Act, 1947 (hereinafter “the Act”).
13. It is submitted that the management’s action is violative of the settled legal principles with regard to the termination and after taking the same into its consideration, the impugned award was passed in favour of the respondent workman.
14. Therefore, in view of the foregoing submissions, it is submitted that the instant petition may be dismissed.
15. Heard the learned counsel appearing on behalf of the parties and perused the record.
16. It is the case of the petitioner that the findings of the learned Labour Court are erroneous since the same is contrary to the facts as per which the petitioner had never terminated his services rather it was the respondent workman who absented himself from the job. In rival submissions, the respondent workman has vehemently opposed the instant petition submitting to the effect that the petitioner entity had terminated his services illegally and without following the due process of law, and further failed to reinstate the workman when a demand was made vide notice dated 4th September, 2017.
17. The relevant portion of the impugned award reads as under:
“..8. Ld. ARW argued that claimant’s service was terminated by the management on 09.07.2017 when his demand for legal facilities like minimum wages, ESI, PF, casual and festival leaves and over time wages became persistent. He was not unauthorizedly absent from duty. He cannot be supposed to leave the job without taking adequate retrenchment compensation from the management as length of his service was about 5 years. As his service was terminated, the management did not send him any letter to join back duty or to explain absence. He had sent complaint dated 10.07.2017 to the officfe of ALC against illegal termination, notice of which was issued to the management by Labour Inspector for 3 dates but the management did not take him on duty. The management had not sent any person or rung him up to join back duty.

9. Perusal of para no. 3 of affidavit in evidence of MW-1 shows that management’s plea is that after attending duty on 05.07.2017, the claimant came for duty on 07.07.2017, collected salary and did not appear thereafter. It is next mentioned in that the management had requested him through so many modes to join back duty but he did not respond.

The management did not disclose either in written statement or affidavit in evidence of MW-1 about the modes adopted by it to call back claimant on duty. It did not place on record any letter/ memo written to claimant to join back duty or to explain absence. MW-1 deposed that so many modes were adopted by the management to call him back. He did not depose in his affidavit in evidence that one of the mode adopted by management was that he himself had rung up claimant to join back duty. He stated that fact first time only in cross-examination by deposing that he had asked claimant on phone twice or thrice to join back but he refused. He could not remember the day on which he had rung him up. He failed to remember the phone number of the claimant on which he had called him up. He could not recollect whether he had used mobile or landline phone to rung him up.

10. The initiative to bring the public authority in motion was
taken by claimant and not by management. Such action had taken by claimant by sending the complaint dated 10.07.2017 Ex. WW- 1/1 to the office of ALC against termination. His swift action also shows that he had not abandoned the job by remaining absent unauthorizedly. The Labour Inspector Ms. Saroj Devi had sent management notices for 18.07.2017, 03.08.2017 and 29.08.2017 but the matter could not be resolved. These facts are mentioned in her report Ex. WW-1/2 dated 06.09.2017. There is no finding by the Labour Inspector that the matter could not be resolved due to the unauthorized absence of the claimant.

***
12. It is not the plea of the management that it had issued any
notice or tendered notice pay and retrenchment compensation to the claimant before terminating his service. Rather, it had taken the defence that the claimant had abandoned the job by remaining absent unauthorizedly. That defence has already been found false. By terminating claimant’s service in that manner, the management has violated the provisions of section 25F of ID Act 1947. So, this issue is also decided in favour of the claimant and against management.
***

The claimant did not depose about the date and month of his employment with the management. His simple assertion is that he had worked for about 5years. On the other hand, manalgement’s plea is that he had joined only on 01.12.2012 and that plea is con-oborated by the wage register from Ex. MW-l/W-2 to Ex. MWl/W- 5 from May to August 2017 in which date of his joining of management is mentioned as 01.12.2012. Ld. ARW tried to assail wage registers by terming them as fabricated. But his argument has no foundation because the claimant has also relied upon wage register of employees of the management as Mark W-2 for May 2017. Comparison of Mark W-2 with wage register Ex. MW-l/W-2 for May 2017, produced by the management, show that both are identical one.
***

The claimant deposed that his last drawn salary was 8800/- per month. But that amount has been stated by the management as 16,470/-. Management’s plea is corroborated by wage register Ex. MW-l/W-3 of its employees for June 2017 in which the name of the claimant is appearing at serial no. 9 and his salary is mentioned as 14,470/-.

Taking into account the length of service of about 5years and last drawn salary of Rs. 16,470/- per month, the management is directed to pay lump-sum compensation of Rs. 1, 75,000/- to him. The management is directed to pay that amount to claimant within one month from today failing which it shall be liable to pay interest @9% per annum from today till realization. Parties to bear their own costs. Award is passed accordingly…”

18. Perusal of the above extracted paragraphs of the impugned order state that in terms of the reference made to the learned Labour Court, it was tasked to adjudicate as to whether the respondent workman remained absent from the duties deliberately or his service was terminated illegally by the management.
19. In this regard, the learned Labour Court noted that the respondent workman had filed his claim stating that he was compelled to work 10 hours per day but overtime wages were not paid. Other facilities like minimum wages, ESI, provident fund, bonus, casual and festival leaves and overtime wages were also not extended to him by the petitioner herein. The petitioner management was enraged because of the said demands and due to the same, the management terminated the respondent’s services on 9th July, 2017 against which the workman had sent a complaint to the Labour Department on 10th July, 2017 which was dealt by a Labour Inspector but the respondent workman was neither taken back on duty nor were his dues paid by the management.
20. Thereafter, he sent a demand notice dated 4th September, 2017 to which the petitioner again did not respond. Subsequently, the workman filed his claim before the Conciliation Officer which remained unresolved due to non co-operative attitude of the management and hence, the industrial dispute.
21. In the proceedings before it, the learned Labour Court framed the first issue which was to decide whether the respondent workman left the job himself by remaining absent without any authorization.
22. With respect to the above stated issue, in paragraph number 11 of the impugned award, the learned Labour Court observed that as per the settled position of law, in case of abandonment of services by a workman, it is incumbent upon an employer to give a notice to the workman, thereby, calling upon him to resume duties.
23. In light of the same, the learned Labour Court held that there is no evidence on record which states that the management had sent any communication; rather, the respondent workman filed a complaint dated 10th July, 2017 (Ex. WW-1/1) to the office of the Assistant Labour Commissioner against his termination on 9th July, 2017. It was, therefore, held that the said conduct of the respondent workman by filing the complaint immediately defeats the allegation leveled by the petitioner management that the workman was absent on his own.
24. This Court does not find any infirmity with the said finding of the learned Labour Court and therefore, no interference with respect to the same is required as no evidence contrary to the above said finding has been adduced by the petitioner herein.
25. The other issue that the learned Labour Court dealt with was to decide whether the termination of service of the workman on 9th July, 2017 was illegal or not. In this regard, in paragraph number 12 of the impugned award, the learned Labour Court held that since it has been decided that the workman did not remain absent without any authorization, therefore, the management has violated the principle of retrenchment prescribed under Section 25F of the Act as there is no notice or retrenchment compensation provided to the workman before terminating his service. Hence, the termination is illegal.
26. Furthermore, the learned Labour Court observed that after the termination of his service, neither did the workman get himself registered with the employment exchange nor did he registered himself with the Pradhanmantri Kaushal Vikas Yojana or Rojgar Mela. Moreover, as per the deposition of the workman it was stated that he did not want to work with the management due to its attitude. In view of the same, the learned Labour Court did not grant him the relief of reinstatement, instead it granted lumpsum compensation.
27. This Court is of the view that evidently the contention of the petitioner does not have any merit since it did not bother to issue any notice or letter to the respondent workman upon his alleged absenteeism. Further, the petitioner entity did not take any action against the respondent workman. Accordingly, this Court is of the considered view that the learned Labour Court rightly held that the workman’s services were terminated illegally in violation of the provisions of Section 25F of the Act.
28. It is a settled legal proposition that this Court should exercise its power under Article 226 of the Constitution of India very cautiously and sparingly, and in exceptional circumstances, only in a given case where it is demonstrated that there is something palpably erroneous. This Court does not sit in appeal and is not permitted to liberally re-appreciate the evidence. That being so, the petitioner has been unable to show any error apparent on the face of the impugned award which warrants the interference of this Court under Article 226.
29. In view of the above discussions of facts and law, this Court finds no force in the propositions put forth by the petitioner. It is held that the present writ petition is not a fit case for interference under the extraordinary writ jurisdiction of this Court, and therefore, the present writ petition is liable to be dismissed since the same is bereft of any merits. Therefore, the impugned award dated 3rd December, 2018, in LIR No. 1583/2018, passed by the learned PILOT Court/POLC-XVII, Room No. 514, Dwarka Courts, New Delhi, is, hereby, upheld.
30. Accordingly, the instant petition stands dismissed along with pending applications (if any).
31. The order be uploaded on the website forthwith.

CHANDRA DHARI SINGH, J
MARCH 13, 2024
dy/ryp/av

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