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Delhi High CourtIndian Cases

Emsons Radio Corporation And Shri … vs The Secretary (Labour) Government Of … on 1 August 2006

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Delhi High Court
Emsons Radio Corporation And Shri … vs The Secretary (Labour) Government Of … on 1 August, 2006
Equivalent citations: 131(2006)DLT454, (2007)ILLJ140DEL
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
JUDGMENT

Shiv Narayan Dhingra, J.

1. By this writ petition petitioner has challenged the Award passed by Labour Court on 24.1.96 and also challenged the reference made by the Government of India under Section 10 of the Industrial Disputes Act ( for short the Act ) on 24.4.96 referring the following dispute:

Whether the services of Shri Ram Avadh have been terminated illegally and/or unjustifiably and if so to what relief is he entitled and what directions are necessary in this respect?
2. Facts in brief are that respondent Workman claimed that he was working as Machine Man on monthly salary of Rs. 440/- and his services were illegally terminated without complying with the provisions of Industrial Dispute Act on 17.5.87. He got issued a demand notice but despite this he was not reinstated. A reference of dispute was made to Labour Court. Workman filed claim stating that he was still unemployed. He prayed for reinstatement with full back wages. Employer in his reply disputed the date of appointment of the Workman( which is not material) and stated that Workman started absenting himself with effect from 17.5.1987. Despite several letters written to him he did not report back for duty. It was stated that management had not terminated his services so reference was bad in the eye of law. No industrial dispute had arisen because Workman had abandoned the services. On the basis of claim and counter claim following issues were framed by the labour Court:

1) Whether the reference is bad in view of para (b) of preliminary objections ?
2) As per terms of reference.
3. After recording evidence of both the sides, Labour Court came to the conclusion that it was a case of termination of services of Workman by the employer. Workman had put about three years service but at the time of termination neither notice nor notice pay or retrenchment compensation was paid to him. Labour Court ordered for reinstatement of the Workman with full back wages.

4. The petitioner has challenged the reference on the ground that the Conciliation Officer wrongly recommended making of a reference of industrial dispute by the Administration. The Conciliation Officer had no jurisdiction to recommend reference. Conciliation Officer only had jurisdiction to submit a failure report.

5. Regarding Award it is stated by the petitioner that the Labour Court, even though took notice of the contentions of management as pleaded in the written statement and had framed issue about the reference being without jurisdiction, but did not give a finding on this issue and therefore the entire Award was illegal and invalid. It is stated that the findings of the Labour Court on facts were also perverse. The letters exchanged between the parties were not disputed by the parties and they were admitted documents needing no further proof but Labour Court has taken adverse inference against the management for not proving letters/ telegrams. The drawing of adverse inference by the Labour Court was contrary to Evidence Act.

6. In the counter affidavit workman reiterated the stand taken by him before the Labour Court.

7. During the arguments, learned Counsel for the petitioner vehemently argued that the respondent workman was not a machine man and he had worked only as a helper with the petitioner. He has wrongly claimed himself as a machine-man to claim wages of a skilled labour, since helper is considered as an unskilled labour. This contention of the petitioner cannot be entertained as this has been raised for the first time in the writ petition. I have gone through the record of the proceedings of the Labour Court and I find that this contention was not raised before the Labour Court. In his testimony before Labour Court workman had clearly stated that he joined respondent on 3.5.1982 and his initial salary was Rs. 150/- per month but his last drawn wage was Rs. 440/- per month i.e. that of a machine man. In cross examination no suggestion has been given to the Workman that he was not a machine man or that his last drawn salary was not Rs. 440/- per month. It does not lie in the mouth of the management now to say that petitioner(tm)s last drawn salary was that of a helper and not that of a machine man.

8. Other argument of petitioner is about abandonment of service by the Workman. In my opinion this Court cannot sit in appeal over the order of Labour Court to re-appreciate the evidence produced in the matter. Suffice it to say that evidence of the Workman and the management both was recorded during the proceedings and the Labour Court had discussed the evidence recorded and arrived at a finding of fact that it was not a case of workman abandoning the service but it was a case of petitioner terminating the service of the workman. It is undisputed fact that no inquiry was conducted by management about unauthorized absence of the workman. Workman(tm)s contention that he had gone to join the services and was not allowed to join, has remained unrefuted. The cross examination of this workman shows that no suggestion was given to him that he was asked to perform his duty but he refused to do. Rather suggestion was given that he was working with some other company. It is not a case where the Labour Court has arrived at a decision on the basis of no evidence or has arrived at a conclusion which is contrary to the evidence on the record. The alleged letters had no bearing on the issue before Labour Court.

9. As far as legality of the reference is concerned, though the Labour Court has not addressed this issue but Award cannot be set aside on this ground. There was a dispute between the parties which was liable to be referred by the Authority and competent authority referred this dispute. It is immaterial that Conciliation Officer gave a report asking the authority to refer the dispute. Counsel for petitioner has failed to show how the report was beyond jurisdiction or how the reference was bad.

10. Since it is a case of illegal termination of service by the employer and the Workman had stated he was unemployed, the granting of full back wages was justified when no evidence was produced by the employer that Workman was in service. Moreover the monthly salary was only Rs. 440/-. Petitioner has failed to make out a case for interference with the award by this Court.

11. Accordingly, the writ petition is dismissed with costs. Costs are quantified at Rs. 10,000/-.