IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 17005 of 2009. Date of Decision : June 30, 2010. M/s Super Screw Private Limited ...... Petitioner . Versus. Presiding Officer, Labour Court No. II, Sector-15-A, Faridabad, and another. ..... Respondents . CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. S.S. Saini, Advocate, for the petitioner. Mr. Adarsh Jain, Advocate, for respondent No. 2. AUGUSTINE GEORGE MASIH, J.. Through this writ petition, challenge has been posed to the Award dated 30.07.2009 (Annexure-P-11), passed by the Labour Court-II, Faridabad, vide which the reference has been answered in favour of respondent No. 2/Workman, holding him entitled to reinstatement in service with continuity thereof alongwith 50% back wages and costs of Rs. 5,000/-. Counsel for the petitioner/Management contends that the Labour Court has not appreciated the fact that the petitioner/Management has exclusive right to create and abolish the posts as per the requirement of the industry and once the post on which the Workman is employed stood abolished, no order of reinstatement could have been passed by the Labour Court as there was no post in existence. His further contention is that respondent/Workman on the abolition of the post was offered an engagement on part time basis, but he refused to accept the same and rather, absented himself from service with effect from 12.03.2001 and, thereafter on C.W.P. No. 17005 of 2009. -2- 09.04.2001, his services were retrenched in accordance with the provisions of the Industrial Disputes Act, 1947, (hereinafter referred to as “the Act”). It is not the case of the respondent/Workman that after abolition of the post of Electrician on which respondent/Workman was appointed, any fresh appointment has been made or the said post has been revived and, therefore, the findings as recorded by the Labour Court and the Award deserve to be set aside. On the other hand, counsel for respondent No. 2/Workman contends that the respondent/Workman was not allowed to join duty with effect from 12.03.2001 as 09th and 10th of March 2001, admittedly were holidays. Respondent/Workman was stopped at the entry gate and he was not allowed to attend his duty on 12.03.2001. The Labour Court on appreciation of the evidence led by the parties had held that the abolition of the post by the petitioner-Management was with a malafide intention to get rid of respondent/Workman, which would amount to unfair labour practice on the part of the petitioner/Management. In case of absence from duty by respondent/Workman as is the pleaded case of the petitioner/Management, the Management should have initiated disciplinary action against the respondent/Workman as absence from duty would amount to mis-conduct and termination of services of respondent/Workman, thus, cannot be said to be in accordance with law. He on this basis contends that the impugned Award deserves to be upheld and the writ petition dismissed. I have heard counsel for the parties and have gone through the records of the case. It is not in dispute that respondent No. 2/Workman was appointed by the petitioner/Management as Electrician with effect from 30.08.1997 as per appointment letter Ex.M-1. He was appointed on full time basis on a C.W.P. No. 17005 of 2009. -3- vacancy, which occurred due to resignation of earlier incumbent on the said post. Respondent/Workman worked with the petitioner/Management till 12.03.2001, when according to the petitioner/Management, respondent/Workman absented from duty, but as per respondent/Workman, his services were terminated as he was stopped at the entry gate and was not allowed to attend his duty on the said date. As per the pleadings of respondent/Workman, no notice or notice pay or retrenchment compensation was paid to him by the petitioner/Management at the time of his illegal termination, thus, violating the provisions of Section 25-F of the Act. Respondent/Workman produced photocopies of ESI Card Mark ‘A’, PF Slips Mark ‘B’ and ‘C’ to show that he was working on regular basis with the petitioner/Management. On his termination, respondent/Workman filed a civil suit for permanent injunction on 13.03.2001, which was withdrawn by him on 04.04.2001 with liberty to avail of the remedy under the Industrial Dispute Act. He submitted the demand notice on 29.04.2001 against his illegal termination. Whereas the stand of the petitioner/Management is that there was no full day work for Electrician and keeping in view the quantum of work of the Electrician, the petitioner/Management decided to abolish the post of Electrician and instead keep only a part time Electrician. On such a decision having been taken, it was decided that respondent/Workman be given the first offer of part time employment, which was for two hours a day at monthly salary of Rs. 600/-. The said notice was displayed on the notice board on 02.03.2001 (Ex.M-2). The claimant refused to accept this letter and thereafter, the said letter was sent to him alongwith another letter dated 03.03.2001 (Ex.M-3) through speed post, but the same was received back with the remark of ‘refusal’. Thereafter, the respondent/Workman remained C.W.P. No. 17005 of 2009. -4- absent from duty without prior permission or sanction of leave. On 21.03.2001, a letter was sent to respondent/Workman at his residential address, advising him to join duty and to explain the reasons for unauthorised absence, but the same was received back un-delivered. Thereafter, the petitioner/Management took a decision to retrench the respondent/Workman from service and accordingly, letter dated 09.04.2001 (Ex.M-11 ) alongwith cheque for Rs. 19,691-45 was sent to him by speed post, i.e., one month notice plus service compensation claim of two months wages as required under Section 25-F of the Act as the respondent/Workman had completed three years and eight months with the petitioner/Management, but the envelope was received back un-delivered. It was pleaded that at the time of termination of services of respondent/Workman, there were 40 employees working with the petitioner/Management and there were 25 machines, but at the time when the evidence was recorded, i.e., January, 2008, there were 40 machines. From a perusal of the pleadings and the evidence which has been led before the Labour Court, it is apparent that a decision was indeed taken by the petitioner/Management to abolish the post of the Electrician as no full time work was available for the Electrician in the Company and instead engage Electrician on part time basis. Respondent No. 2/Workman was looking after the work of Electrician and was also operating the generator set of the Company. It is the prerogative of the petitioner/Management to create or abolish the post depending upon the requirement of the work. There is nothing on the record, which would suggest that the petitioner/Management had acted with a malafide intention to get rid of respondent/Workman as nothing has come on record, which would show that after the termination of services of the respondent/Workman either the post has been recreated or any person has been appointed as Electrician. What has come on record in the C.W.P. No. 17005 of 2009. -5- statement of MW-1/Suresh Kumar Saini is that the Security Guards have been trained for operation of the generator set and they are now looking after the operation of the said generator set of the Company. Merely because the number of machines have increased from 25 in the year 2001 to 40 in the year 2008, would not justify the requirement of a full time electrician. As a matter of fact, no person has been appointed even on part time basis as Electrician by the petitioner/Management after the termination of services of respondent/Workman. As per the documentary evidence, which has been placed on record by the petitioner/Management, a decision was taken by the petitioner- Management to abolish the post of full time Electrician as there was no work available in the Company. A decision was also taken to engage a part time Electrician for two hours a day with a monthly income of Rs. 600/-. This engagement as a part time Electrician was offered to respondent/Workman on 02.03.2001 (Ex.M-2). Respondent No. 2/Workman refused to accept this letter, when the offer was made to him. The petitioner/Management decided to send this letter dated 02.03.2001 to the claimant by registered post and issued another letter dated 03.03.2001, which was sent by speed post, vide postal receipt (Ex.M-4). The envelopes containing the letter dated 02.03.2001 and 03.03.2001 were received back from the postal authorities with the remarks of refusal. The dak matter received back was produced before the Labour Court as Ex.M-5. Respondent/Workman absented from duty from 12.03.2001 without any prior permission or sanction of leave. The petitioner/Management sent a letter dated 21.03.2001 to the claimant, advising him to join duty and to explain the reasons for his unauthorised absence. This letter was sent at the residential address of respondent/Workman and the same was also received back un-delivered with the remarks that ‘despite various C.W.P. No. 17005 of 2009. -6- visits not found, thus, returned’ . Copy of letter dated 21.03.2001 as Ex.M-9 and the envelope as Ex.M-10 have been produced and, thereafter, a decision to retrench the respondent/Workman from service was taken by the petitioner/Management and, accordingly his services were retrenched on 09.04.2001. Letter dated 09.04.2001 alongwith cheque for Rs. 19,691-45 was sent to him by speed post which included one month notice pay, i.e., equal to two months wages. Copy of the letter dated 09.04.2001 (Ex.M-11), photocopies of the cheque dated 04.04.2001 (Ex.M-12), and postal receipt (Ex.M-13) were produced before the Labour Court. The envelope containing letter dated 09.04.2001 alongwith cheque dated 04.04.2001 referred to above, was received back un-delivered with the remarks, i.e., ‘despite various visits not found, thus, returned’ has been produced before the Labour Court as Ex- M-14. The address as mentioned on the envelopes, which were received back un-delivered and produced before the Labour Court by the petitioner/Management, have been admitted by respondent No. 2/Workman to be that of his residential address. In his cross-examination also he has admitted that he was not available during the period 09.04.2001 to 16.04.2001 at home and there is possibility that the envelopes might have been returned to the petitioner/Management by the postal authorities. In the light of the above, it cannot be said that the termination of services of the respondent/Workman was not in accordance with law. As has been held above, abolition of the post of full time Electrician by the petitioner/Management is its prerogative unless the same is with a malafide intention to victimise or to get rid of respondent No. 2/Workman, especially when after termination of his services, no Electrician has been appointed by the petitioner/Management either on full time basis or on part time basis. Rather, an offer was made to respondent No. 2/Workman to take up the C.W.P. No. 17005 of 2009. -7- engagement as part time Electrician with the petitioner/Management, which petitioner/Management has been able to prove, was not accepted by respondent No. 2/Workman. The findings as recorded by the Labour Court, thus, cannot be sustained. It would not be out of way to mention here that the amount of compensation as offered to the respondent No. 2/Workman has not been disputed by respondent/Workman. In view of the above, the present writ petition is allowed. The impugned Award dated 30.07.2009 (Annexre-P-11), passed by the Labour Court-II, Faridabad, is hereby set aside. The reference is answered against the respondent No. 2/Workman, holding that the termination of services of respondent No. 2/Workman was in accordance with law. (AUGUSTINE GEORGE MASIH) JUDGE June 30, 2010. sjks.