Civil Writ Petition No.2306 of 1983 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Civil Writ Petition No.2306 of 1983 Date of Decision:17.09.2008 M/s Sadhu Forging Private Limited, Faridabad .....Petitioner Vs. Satbir Singh and others .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. Sudhir Mittal, Advocate for the petitioner. Ms. Abha Rathore, Advocate for respondent No.1. **** HARBANS LAL, J. This petition has been moved by M/s Sadhu Forging Private Limited, Faridabad under Article 226 of the Constitution of India for quashing award dated 13.10.1982 Annexure P.8. The facts giving rise to this petition are that Satbir Singh, respondent (hereinafter to be referred as `the workman') joined the service of the petitioner- Company in October, 1979. He worked there till April, 1981. In the month of April, 1981, he along with some other workmen of the petitioner started absenting from duty without any reasonable cause. This strike was declared illegal by the petitioner. On 5.5.1981, a settlement under Section 12(3) of the Industrial Disputes Act, 1947 (For short `the Act') was arrived at between the petitioner and its workmen, according to which, all the workmen except three mentioned therein were to report for duty within two weeks from 5.5.1981. Satbir Singh, respondent- workman did not report for duty even after expiry of two weeks from 5.5.1981 in- spite of the fact that an intimation under registered cover was sent to him for Civil Writ Petition No.2306 of 1983 -2- joining duty in accordance with the settlement. The registered letter was received by him. Ultimately, on 27.5.1981, the petitioner sent another reminder to him at his original village address asking him to report for duty within two days from the receipt of this communication. He did not report for duty as he was not interested in the employment. He had started working somewhere else. This continued absence from duty amounted to abandonment or voluntary retirement of the workman. Ultimately, the workman served demand notice on the petitioner. The dispute was referred to the Presiding Officer Industrial Tribunal, Faridabad (Haryana). After recording evidence and hearing the representatives of the parties, the Presiding Officer, Industrial Tribunal, Faridabad held that “in view of the above, termination amounted to retrenchment and was bad in law for non- compliance of provisions of Section 25-F of the Act. The workman was entitled to his reinstatement with full back-wages.” Feeling aggrieved with this award, the petitioner has filed this petition. In his written statement, the workman has inter-alia pleaded that the termination of his services amounts to retrenchment within the meaning of Section 2(oo) of the Act and the same was illegal for non- compliance of Section 25-F ibid. Notice dated 5.6.1981 (Annexure P.3) was not a proper notice under Section 25-F ibid, as there was no payment or tender of retrenchment compensation simultaneously with this notice. The strike was called off on 21.5.1981. The answering respondent- workman reported on duty as per settlement contained in Annexure P.1, but he was put off, on one pretext or the other. He had reported for duty on 4.6.1981, but he was not taken on duty by the petitioner- Management. Ultimately, he made a complaint on 15.6.1981. There was no abandonment of service or Civil Writ Petition No.2306 of 1983 -3- voluntary retirement. Lastly, it has been prayed that this petition may be dismissed with costs. I have heard the learned counsel for the parties besides perusing the findings returned by the learned Presiding Officer, Industrial Tribunal with due care and circumspection. Mr. Sudhir Mittal, Advocate appearing on behalf of the petitioner eloquently urged that according to settlement, Annexure P.1, the workman ought to have reported for duty on 19.5.1981. He did not do so despite repeated reminders including the one dated 27.5.1981 (Annexure P.2) which was duly received by him. This conduct clearly amounted to abandonment of duty or voluntary retirement from service, according to the Model Standing Orders applicable to the parties. Thus, there is no question of terminating his services. Consequently, the reference was basically wrong and should have been answered against the workman. In his claim statement, the workman alleges to have reported for duty in accordance with Annexure P.1. It implies that he reported for duty on 19.5.1981. In his statement, he asserted that the strike was called off on 21.5.1981 and he reported for duty on 23.5.1981. These are unbelievable statements. To fortify his contentions, he has sought to place abundant reliance upon the observations made in re: Syndicate Bank v. General Secretary, Syndicate Bank Staff Association and another, AIR 2000 SC 2198 wherein the Apex Court has held as under:- “This undue reliance on the principles of natural justice by the Tribunal and even by the High Court has certainly led to miscarriage of justice as far as Bank is concerned. Conduct of Dayananda as an employee of the Bank has been astounding. It Civil Writ Petition No.2306 of 1983 -4- was not a case where the Tribunal should have given any relief to Dayananda and yet the Bank was directed to reinstate him with continuity of service and mercifully the later part of the relief High Court struck down. There was no occasion for the Tribunal to direct that Dayananda be reinstated in service or for the High Court not to have exercised its jurisdiction under Article 226 of the Constitution to set aside the Award.” He puts that in these premises, the impugned award is liable to be set aside. Ms. Abha Rathore, Advocate appearing for the respondent- workman countered these arguments by contending that as is borne out from Annexure P.4 submitted by the workman to the Labour Inspector, he went to duty on 4.6.1981 but the Management put him off by saying `Come Tomorrow' and, thereafter, he was never allowed to join duty. There is no gainsaying the fact that the workman had put in more than 240 days' service and his name was struck off from attendance without any rhyme or reason, which tantamounts to retrenchment. There being retrenchment, the petitioner was obligated to pay compensation under Section 25-F ibid. to the workman, but admittedly he was paid nothing. To buttress this stance, she has sought to place abundant reliance upon the observations made in re: Delhi Cloth and General Mills Co. Limited v. Shambhu Nath Mukherji and others, AIR 1978 SC 8 wherein the Apex Court has held that striking off name of workman from rolls amounts to retrenchment. The mandatory provisions of Section 20-F(a)(b) were required to be complied with. She further relied upon L. Robert D'Souza v. The Executive Engineer, Southern Railway and another, AIR 1982 SC 854 wherein also an Civil Writ Petition No.2306 of 1983 -5- identical view has been taken by the Supreme Court that striking off name of workman from roll without anything more, constitutes retrenchment. I have given a deep and thoughtful consideration to the rival contentions. As observed by the Presiding Officer, Industrial Tribunal, according to the appointment letter Ex.M-1, the workman was appointed on 3.10.1979. He was informed vide Ex.M-6 regarding his absence. The letter was received by him vide Ex.M-4, Acknowledgment Due Card. His name was struck off vide Ex.M-7 dated 5.6.1981 on account of absence. The letter was sent by registered post but the same was received back undelivered. According to the settlement Ex.M-5, the workman had to report for duty within 15 days, i.e., from 5.5.1981. The petitioner has placed on record the settlement dated 5.5.1981 (Annexure P.1). As per the same, the workmen who had gone out of the city or absent for any reason , they could join the duty within two weeks. It implies that the workman being out of the city could join by 20.5.1981, but as observed in the award he did not report for duty upto 27.5.1981 as was clear from Ex.M-1 which was received by him at his village address. It is also observed that the Management was justified in treating him absent from duty. The learned Presiding Officer, Industrial Tribunal by placing reliance upon the observations made in re: L. Robert D'Souza (supra) and another authority held that the striking off the name of the workman from the rolls of the Management amounted to retrenchment. This finding is not liable to be disturbed in view of the consistent view taken in both the authorities referred to by Ms. Abha Rathore on behalf of the workman. In case of Syndicate Bank (supra), one Dayanand was appointed as Clerk-cum- Civil Writ Petition No.2306 of 1983 -6- Typist on probation in the Bank. Subsequently, he was confirmed. In November, 1983, he was transferred to Cottonpet Branch of the Bank where he was to join his duty on or before 3.4.1984. He was relieved from the Branch where he was working on 31.3.1984 on his transfer to Cottonpet Branch. From April 1, 1984 to December, 1985, out of 628 working days, he worked only for 46 days but did not report for duty on April 3, 1984. Thus, obviously the facts of that case are distinguishable from the one in hand. Ms. Abha Rathore, at this juncture argued that a glance through Annexure P.1 would reveal that the settlement was arrived at between M/s. Sadhu Steel Forging Industries, Faridabad, whereas the workman was working with M/s Sadhu Forging Private Limited, Faridabad. Thus, he was not bound by this settlement. Mr. Mittal pointed out that in paragraph No.3 of the petition, it has been averred that on 5.5.1981, a settlement under Section 12(3) of the Act was arrived at between the petitioner and its workmen. In the counter paragraph of the written statement filed by the workman, it is merely mentioned that para No.3 is not denied. Thus, it does not lie in the mouth of the workman to contend that this settlement was not reached between the parties. This contention is digestible. As per Annexure P.5, the demand notice, the workman was drawing salary of Rs.300/- per month as Shaperman and he had put in two years of continuous service. Though in his claim statement Annexure P.6, he has mentioned that he was drawing salary to the tune of Rs.287/- per month. The position as emerges out of the facts enumerated above is that the striking off the name of the workman from the rolls of the Management amounted to retrenchment and he was not given any retrenchment compensation. The learned Presiding Officer, Industrial Tribunal has also observed in the award Civil Writ Petition No.2306 of 1983 -7- that “it was case of both the parties that he (referring to the workman) was not paid any notice pay or retrenchment compensation as provided in Section 25-F of the Act.” The name of the workman was retrenched in the month of April, 1981. Vide impugned order, he was ordered to be reinstated but it is an admitted case of both the parties that he has not been reinstated as yet. As noticed in the order dated 27.10.2006 passed by this Court, the compliance of Section 17-B of the Act had been made by way of delivering a demand draft in the sum of Rs.29,561/- on 10.5.2006 to the workman. It is indicative of the fact that in compliance with the provisions of Section 17-B ibid the workman had been receiving the dues. In re: Rajasthan Lalit Kala Academy v. Radhey Shyam, 2008(3) Service Cases today 841, the respondent was appointed on 7.6.1980 on a monthly salary of Rs.300/- to do the work of a Junior Clerk. On 4.4.1981, his services were terminated. On an industrial dispute being raised, the Industrial Tribunal, Jaipur by an award dated 24.9.1983 set aside the order of termination and directed reinstatement of the respondent with effect from 24.9.1983 with 50% back-wages. The respondent claimed to have submitted his joining report on the very next date of award. He again submitted his joining report to the Secretary of the appellant but was not taken back on duty. The Apex Court observed that interest of justice would be met if instead and in place of direction for reinstatement and back-wages, a sum of Rs.3 lacs is directed to be paid to the respondent by way of compensation, over and above the amount, the respondent is entitled to receive in terms of award dated 24.9.1983, which has attained finality. In re: Haryana State Electronics Development Corporation Limited v. Mamni , (2006) 9 Supreme Court Cases 434, the appointment of the workman was made for a short period. Civil Writ Petition No.2306 of 1983 -8- The services were terminated without complying with the conditions as laid down in Section 25-F of the Act. A period of 14 years had elapsed since the date of termination of his services. It was held by the Apex Court that since there was no material on record to show that she had not been working during that period, instead of reinstatement with full back-wages, the compensation of Rs.25,000/- be paid. In re: UP State Brassware Corporation Limited and another v. Uday Narain Pandey , (2006) 1 Supreme Court Cases 479, it has been observed that “in this view of the matter, we are of the opinion that interest of justice would be sub-served if the back wages payable to the respondent for the period 1.4.1987 to 26.3.1993 is confined to 25% of the total back-wages payable during the said period. The judgments and orders of the Labour Court and the High Court are set aside and it is directed that the respondent herein shall be entitled to 25% back-wages of the total back-wages payable during the aforesaid period and compensation payable in terms of Section 6-N of the U.P. Industrial Disputes Act. If, however, any sum has been paid by the appellant herein, the same shall be adjusted from the amount payable in terms of this judgment.” As ruled in re: Uday Narain Pandey's case (supra) as well as Mamni's case (supra), the onus lies upon the workman to prove that he was not gainfully employed during the period for which back-wages are being claimed. The petitioner has alleged that the workman was called upon to resume his duty whereas the latter has come up with the plea that he was not allowed to join the duty. There is nothing on the record to show that the workman was appointed as Shaperman on permanent basis. It was unlikely that he would have remained unemployed during the period of 27 Civil Writ Petition No.2306 of 1983 -9- years. In any event, it would be wholly unjust at this distance of time, i.e., after a period of more than 27 years to direct his reinstatement in service. Keeping in view the peculiar facts and circumstances of this case, I am of the opinion that instead and in place of the direction for reinstatement of the respondent- workman together with back-wages from 1981, interest of justice would be sub-served if the petitioner is directed to pay a sum of Rs.2 lacs to him. I direct the petitioner to pay this amount to the workman- respondent within a period of 12 weeks from today failing which, the same shall carry interest at the rate of 6% per annum till the date of actual payment. The impugned award is accordingly modified directing the parties to bear their own costs. Disposed of accordingly. September 17, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No