The Deputy Conservator of Forests vs Girwar Das and Others

Sandeep Mehta, J—Heard learned counsel for the parties.

By way of the instant writ petition, the petitioner has approached this Court assailing the validity and legality of the award Annex. 10 dated 19.8.1999 passed by the Labour Court cum Industrial Tribunal, Bhilwara in Labour Case No. 10/94 whereby the labour dispute instituted on behalf of the respondent workman under the provisions of the Industrial Disputes Act, 1947 was allowed and the removal of the petitioner from service by a so-called order dated 28.8.1989 passed by Deputy Conservator of Forest, was declared to be illegal and the department was directed to take the respondent workman on duty from 29.1.1992 with full back wages and emoluments.

Facts in brief are that the respondent workman Girwar Das was employed as a watchman on daily wage basis in the respondent department on 19.10.1983 and continued to work on the post for almost six years. He claimed that owing to illness of his wife, he was prevented from going on duty from 28.8.1989 onwards. He submitted applications to the authorities for granting him leave during the period of his absence. Ultimately, he went to the department on 29.1.1992 with medical and fitness certificates and requested that he should be taken back on duty but the authorities refused to accede to his demand. Upon this, the respondent workman raised an industrial dispute through his union. Upon failure of conciliation proceedings, the matter was referred to the Industrial Tribunal, Bhilwara for adjudication under the provisions of the Industrial Disputes Act. The Labour Judge framed the following issue for adjudication:-

The respondent workman pleaded in his affidavit that he was initially engaged as watchman in the forest department on 19.10.1983. Thereafter, he was assigned the duties of a Mohrir on 5.7.1984 and continuously worked on the said post till 28.8.1989. After 28.8.1989, his father, his wife and he himself fell ill one after the other and as such, he could not go for attending duty. He procured requisite medical certificates and went to the department for rejoining duty on 25.1.1992 but the respondent authorities did not permit him to resume work. In the statement of claim, the petitioner mentioned that he submitted an application for leave of absence on 20.9.1990 and thereafter, sent request letters dated 3.1.1991, 28.1.1991, 12.2.1991 and 29.1.1992 for extending the leave period. On the other hand, in the evidence affidavit, it was stated by the petitioner that he forwarded leave applications dated 3.11.1989, 3.9.1990, 2.7.1990, 20.7.1990, 20.9.1990, 3.1.1991 and 28.1.1991 to the department praying for leave on the ground of illness of his wife, father and he himself.

The forest department filed a reply to the statement of claim and took a clear stand that the workman abandoned duty without any information from 28.8.1989 onwards. No order of termination was ever passed. Since it was a case of abandonment of duty, the department was not required to comply with the provisions of Industrial Disputes Act and the action of the department in denying permission to the workman from joining duty in the year 1992 was justified. It was specifically pleaded in the reply that registered notices for joining duty were sent to the workman on 10.10.1989 and 27.10.1989 but he did not respond despite receiving the notices. Copies of the registered notices were placed on record with the reply.

The Tribunal considered the pleadings and the affidavits of the parties and held that it was established by the workman''s evidence that he was prevented from going to perform his duty owning to ailments in the family. It was further held that the workman submitted numerous leave applications to the department and in this background, the workman''s absence from duty from 29.8.1989 onwards on the ground of ailment of his father, wife and himself was justified. The Tribunal further held that there was no reason as to why the workman who had worked with the respondent Government department for six years would abandon the job. On this assumption, the learned Tribunal, by its award dated 19.8.1999 concluded that despite the workman''s long absence from duty, the department was required to conduct a domestic inquiry against him before terminating him and the action of the department in denying permission of joining duty to the workman and his alleged removal from service on 28.8.1989 without complying with the mandatory requirements of the Industrial Disputes Act, 1947 was held to be illegal and the claim application was accepted in the above terms. It is against the said award that the forest department has approached this Court by way of the instant writ petition.

Learned counsel for the petitioner contended that the Tribunal''s finding that the services of the respondent workman were terminated by the department on 28.8.1989 is perverse and illegal on the face of record. He submitted that the workman did not even set up a case in his entire claim that his services were terminated on the said date. He further contended that the pleadings of the workman in his statement of claim and the affidavit regarding the dates on which he submitted the leave applications to the department are totally contradictory. He further submitted that the specific assertion made by the department in the reply to the statement of claim that the workman failed to respond despite service of registered notices sent to him for rejoining duty was not controverted by the workman. He submitted that the finding recorded by the Tribunal regarding the department terminating the workman''s services without complying with the mandatory provisions of Industrial Disputes Act is perverse, unjust, illegal and thus, the impugned award deserves to be quashed and set aside.

Learned counsel representing the respondent workman vehemently contended that the Tribunal appreciated the evidence of the parties in a just and proper fashion and reached to a logical conclusion regarding the termination of workman''s services having been effected without following the mandatory procedure of the Industrial Disputes Act. As per him, the Court while exercising the extraordinary jurisdiction is not required to reappreciate the facts on the evidence of the parties and thus, as per him, no interference is called for in the impugned award.

Heard and considered the arguments advanced at the bar and perused the material available on record as well as the impugned award.

The admitted and undisputed case of the workman as per the pleadings available on record and reflected from the Tribunal''s order was that he himself did not go to the work place and failed to attend the duty from 28.8.1989 onwards. In this background, prima-facie, even the issue of reference framed by the Tribunal that the workman was terminated from service by the department was absolutely conjectural unfounded and baseless.

Be that as it may. Upon going through the claim application and the affidavit, it is reflected that the respondent workman gave totally contradictory dates regarding the leave applications filed for justifying his unauthorized absence from duty. As per the claim application, the first leave application was submitted by the workman on 20.9.1990, whereas as per his affidavit, he filed the first leave application on 30.1.1989.

This Court is of the opinion that the averments and the facts stated by the workman in his affidavit which run contrary to the pleadings of the statement of claim, cannot be accepted as they amount to improvements. The pleadings in the statement of claim and the petitioner''s evidence affidavit are highly discrepant as regards the dates on which leave applications were allegedly forwarded to the department by the petitioner. Nonetheless, even going through the alleged leave applications as set out in the affidavit of the workman are also indicative of the fact that the workman attempted to justify his absence by sending leave applications after gaps ranging between 2 months to 6 months. Not only this, as per the admitted pleadings of the workman, for the period between 28.1.1991 to 29.1.1992, he did not send a single leave application to the department. Thus, as per the workman''s own pleading, there was absolutely no justification for the above period of absence of nearly 1 year. In the evidence affidavit, the petitioner did not even mention about any leave application having been forwarded to the department on 29.1.1992. The specific case set up by the department in reply to the statement of claim regarding the workman having abandoned duty on 29.1.1989 and notice sent to him were not controverted in the affidavit filed by the workman.

As a consequence, this Court is of the firm opinion that the department succeeded beyond all manner of doubt in establishing that it was a case wherein the workman abandoned duty and not a case where the department terminated his services without recourse to the mandatory provisions of the Industrial Disputes Act, 1947. As a consequence, there was no requirement to comply with the provisions of Section 25F of the Industrial Disputes Act while denying the workman permission to join duty on 25.1.1992. The impugned award is patently perverse, illegal, contrary to the material available on record and cannot be sustained in the eye of law.

Consequently, the instant writ petition deserves to be and is hereby allowed. The award Annex. 10 dated 19.8.1999 passed by the Labour Court cum Industrial Tribunal, Bhilwara in Labour Case No. 10/94 is hereby quashed and set aside.

No order as to costs.