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Judgment
Rajiv Sahai Endlaw, J.—The challenge in this petition is to the award dated 19th March, 2004 of the Labour Court only in so far as it directs the Petitioner employer to pay to the Respondent No. 2 workman 50% of the back wages at last drawn salary of Rs. 1,700/- p.m. or minimum wages fixed for that post from time to time, whichever is higher, from the date of termination i.e. 5th February, 1996 till the date of reinstatement with the consequential benefits. No challenge has been made to the award in so far as granting the relief of reinstatement of the Respondent No. 2 workman.
Notice of the petition was issued and the award in so far as directing payment of 50% of the back wages was stayed subject to the Petitioner employer depositing Rs. 10,000/- towards litigation expenses. The said amount of Rs. 10,000/- is stated to have been deposited and the counsel for the Respondent No. 2 workman states that the said amount has been withdrawn. The said interim order has continued in force till now.
Though in the year 2008 an application u/s 17B of the I.D. Act was filed by the Respondent No. 2 workman but the same was dismissed in default on 13th August, 2009. No application for its revival has been filed till now. The record of the Labour Court has been requisitioned.
The matter came up before this Court last on 15th February, 2011 when the counsel for the Petitioner employer contended that even though the Petitioner employer had not challenged and had not sought any stay of the award in so far as for reinstatement, but the Respondent No. 2 workman had nevertheless not come forward to rejoin the Petitioner employer. The counsel for the Petitioner employer thus contended that the present proceedings were being pursued only by the Union with the Respondent No. 2 workman being nowhere in sight.
On the said plea of the counsel for the Petitioner employer, the counsel for the Respondent No. 2 workman was directed to produce the Respondent No. 2 workman in this Court on the next day. He however expressed inability and sought time till today for the said purpose.
Today, the counsel for the Respondent No. 2 workman states that he had sent a letter dated 15th February, 2011 by courier to the Respondent No. 2 workman, as well as the Union but none has contacted him thereafter. In the circumstances, the counsels have been heard.
Reference made to the Labour court was as under:
Whether Shri Prem Singh and Shri Sanjay Kumar have abandoned their jobs or their services have been terminated illegally and/or unjustifiably and if so, to what relief are they entitled and what directions are necessary in this respect?.
The counsel for the Petitioner employer has contended that the employer had proved before the Labour Court the letter dated 9th February, 1996 sent to the Respondent No. 2 workman to the effect that he had been absenting without leave since 5th February, 1996 and asking him to join duty within 3 days. He has further argued that even in response dated 14th March, 1996 to the notice received from the Conciliation officer, the Petitioner employer had pleaded that inspite of the Respondent No. 2 workman having earlier abandoned the job, the Petitioner employer was even then willing to take him back. The same stand was taken in another reply dated 18th June, 1996 to the Conciliation Officer. It is argued that in the circumstances when the Respondent No. 2 workman had himself absented, the award for back wages even to the extent of 50% is bad.
Per contra, the counsel for the Respondent No. 2 workman has invited attention to the award returning a finding that the Labour Inspector had vide report Ex.WW-1/4 reported that the Petitioner employer was not willing to take back the Respondent No. 2 workman. He contends that in view of the said contemporaneous report, the award cannot be faulted with. He however has no explanation as to why the Respondent No. 2 workman inspite of the award has not appeared to join back the employment with the Petitioner employer.
A perusal of the record of the Labour Court shows that the finding of the Labour Court with respect to Ex. WW-1/4 relied upon by the counsel for the Respondent No. 2 workman without reference to the said document is perverse. Ex. WW-1/4 is not a report of the Labour Inspector as construed by the Labour Court but is merely a notice issued by the Conciliation Officer in response to the complaint of the Respondent No. 2 workman. It was in response to the said notice that the Petitioner employer had informed the Conciliation Officer that it was still willing to take back the Respondent No. 2 workman. It is surprising that instead of the said stand of the Petitioner employer before the Conciliation Officer, the reference was made. In fact there was no dispute in view of the said reply and on which reference could have been made. The reference to the Labour court itself was thus bad.
Though abandonment of service is also a misconduct and for which action as for termination of employment ought to have been taken by serving a charge sheet on the Respondent No. 2 workman and no such action has been taken, but in view of the proved case of the Petitioner employer of the Respondent No. 2 workman of his own volition having not joined duty, the Labour Court has acted perversely in granting the relief of 50% back wages. The award to the said extent cannot be sustained and is quashed/set aside.
It is also not deemed expedient to allow the award in so far as for reinstatement though in accordance with law for the reason of the Petitioner employer having not lawfully terminated the employment, to stand indefinitely. In view of the subsequent event of the Respondent No. 2 workman having not opted to join the employment with the Petitioner employer, the award to the said extent is also quashed.
The petition is accordingly allowed. Since the counsel for the Respondent No. 2 workman states that none has been contacting him, it is deemed not appropriate to direct refund of the litigation expenses of Rs. 10,000/- received from the Petitioner employer.
No order as to costs.