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Judgment
S.P. Kurdukar, C.J.—Both these appeals can be disposed of by this common judgment since they arise out of the Judgment dated May 10, 1993, passed by the learned Single Judge, in Civil Writ Petition No. 3200 of 1982. Letters Patent Appeal No. 534 of 1993 is filed by the New Allenberry Works, Faridabad, whereas Letters Patent Appeal No. 646 of 1993 is filed by the Workman (the writ petitioner) challenging a part of the Judgment denying 50 per cent wages. Letters Patent Appeal No. 646 of 1993 is barred by limitation by 36 days and the appellant therein has filed Civil Miscellaneous Application No. 964 of 1993, for condonation of delay. For the purposes of this Judgment, we may refer to the facts set out in Letters Patent Appeal No. 534 of 1993.
New Allenberry Works is engaged inmanufacturing engine parts. It has got its factory at Faridabad. The said New Allenberry Works is represented by the management as appellant (hereinafter referred to as the appellant). The third respondent Krishana Singh was workman at whose instance reference was made to the Industrial Court for adjudication of the dispute under the Industrial Disputes Act, (hereinafter called the Act), The learned Single Judge has succinctly set out the relevant facts in his judgment and it is not necessary to re-produce the same in detail. We may, however, briefly refer to a few facts which are germane to the decision by this Court.
Few admitted facts are as under.
The third respondent (the writ petitioner) hereinafter called the workman) came to be appointed on May 18, 1977, as a Machinist on a monthly salary of Rs. 346/-. He applied for leave for one month and nine days and the same was granted. He accordingly proceeded on leave from April 17, 1979. However, after the expiry of the leave period, the workman did not join the service and consequently, the management vide registered letter dated May 29, 1979, communicated to the workman about his absence after the expiry of the leave period and he should report for duty within three days from the date of receipt of the letter. It is common premise that the said registered letter was served on the workman. Despite this, the workman did not join the duty, nor he sent any reply. On June 13, 1979, the appellant vide registered letter, informed the workman that since he remained absent without prior sanction of the leave he had lost lien on the job/service. He was informed that he can attend office and collect his dues therefrom. It also refers to the earlier letter dated May 29, 1979. However, the workman did not collect the dues. On June 18, 1979, the workman served demand notice on the appellant through the union which is based at Delhi. It is common premise that the said union is not functional in the appellant establishment. Under the demand notice, the workman called upon the appellant to reinstate him with back wages as his services were terminated illegally. Since there was no response from the appellant, conciliation commenced, which failed. The State Government on the basis of the report of the conciliation officer, vide order dated September 26, 1979, referred the dispute between the appellant and the workman to the tribunal for adjudication. The reference was:-
"Whether the termination of services of Shri Krishana Singh was justified and in order? If not, to what relief is he entitled?"
On receipt of the reference, parties were called upon to file their claim statements. It is the claim of the workman that he went on leave on April 17, 1979, for one moth and nine days which he extended up to June 10, 1979, due to his illness. He reported for duty on June 11/12, 1979, but he was refused. It is further stated in the claim statement that he applied by registered post on May 25, 1979, for extension of leave. On June 11/12, 1979 he went to the factory and met the management, but he was not allowed to join the duties. He was prevented by the Chowkidar to join the duties. This is how it is pleaded by the workman that although he was ready and willing to join the duties, yet he was not allowed to do so by the appellant. The workman prayed that he be reinstated with continuity of service and backwages. The appellant in his claim petition denied that the workman ever sent any application by registered letter on May 25, 1979, praying for extension of leave. They also denied that the workman ever saw the Personnel Officer or any other officer of the appellant with a fitness certificate and he was not permitted to join the duties. The main defence of the appellant in the claim petition was that after the expiry of the leave period of one month and nine days, the workman did not join the duties and he had abandoned the service. The appellant pleaded that on May 20, 1979, the workman was called upon to give explanation as to why he remained absent after the expiry of the leave period and if at all he was interested, he should report for duty within three days from the service of the said letter. Since the workman did not join, nor he replied to the said notice, it was presumed by the appellant, that the workman has abandoned the service and he was no more interested in the job. It is further pleaded by the appellant that by way of precaution again on June 13, 1979 a registered letter is sent to the workman informing him that because of his absence from the duty after the expiry of the leave period he had lost the lien and he was no more in the service of the appellant. By the very same notice, he was asked to come to the office and collect his dues. The workman having failed to comply with any of these notices, has no right whatsoever to claim either reinstatement or back wages. Demand notice issued by the workman dated June 18, 1979, is an after-thought attempt and illegal. The appellant emphatically denied to have received any registered letter alleged to have been sent by the workman on May 25, 1979, as also the alleged meeting with the Personnel Officer or any other officer on June 11/12, 1979 requesting to allow him to join the duties. The workman never came to the factory as alleged and, therefore, the question of disallowing him to join the service was far from truth.
On these broad pleadings, the tribunal framed the issues for adjudication and allowed the parties to lead oral as well as documentary evidence. Both the parties led oral and documentary evidence before the tribunal. After hearing the arguments of the parties, the learned presiding officer of the tribunal by his award dated December 31, 1980, negatived the claim set up by the workman. The tribunal came to the conclusion that in the absence of cogent and satisfactory evidence, the workman must be deemed to have abandoned the service. The reference was accordingly answered in favour of the appellant. Aggrieved by the award, the workman filed Civil Writ Petition No. 3200 of 1982 in this Court. The learned Single Judge vide his impugned judgment and order dated May 10, 1993, allowed the writ petition holding that there is no abandonment on the part of the workman and on the facts and circumstances of the case, it must be held that the services of the workman were terminated amounting to retrenchment. Since there was non-compliance of the mandatory provisions of Section 25-F of the Act, the learned Single Judge directed that the workman be reinstated with continuity of service. As far as the back wages are concerned, looking to the facts and circumstances of the case, the learned Single Judge awarded a consolidated amount of Rs. 30,000/- by way of back wages in full and final satisfaction of the claim of the workman. It is this judgment which is sought to be challenged by the contesting parties in both these appeals.
Mr. Mutneja, the learned counsel appearing in support of the appeal filed by the New Allenberry Works, raised four contentions, namely, - (i) in the facts and circumstances of the case, it must be held that the workman has abandoned service and, therefore, there was no question of retrenchment or giving any back-wages, (ii) assuming that there is retrenchment as pleaded by the workman, the case of the workman will fall in one of the exceptions of Section 2(oo), to be more precise, Section 2(oo) (a) of the Act, (iii) the tribunal on appreciation of oral and documentary evidence has reached a finding that the workman has abandoned service. The learned Single Judge was not justified in setting aside the said finding of fact and holding that the services of workman came to be terminated amounting to retrenchment and his case did not fall in any of the exceptions as provided in Section 2(oo) of the Act, (iv) assuming that there is retrenchment there is substantial compliance of Section 25-F of the Act since the appellant vide letter dated June 13, 1979, had called upon the workman to come and collect the dues. It is the workman who did not come to collect the dues and if this be so, it cannot be said that there was non-compliance of Section 25-F of the Act, and (v) in view of the provisions of Sections 17-A and 19 of the Act, the writ petition was belated as the award was not enforceable after the expiry of the period of one year.
The learned counsel for the workman supporting the impugned judgment submitted that no interference is called for. As regards the appeal filed by the workman he contended that the grant of Rs. 30,000/- by way of back wages is wholly unjustified and the workman be paid full back wages as prayed for.
Both the parties have referred to several judgments of the High Courts and the Supreme Court in support of their respective contentions, but in our opinion, reference to these judgments may not be necessary since, the crucial question relating to the issue as to whether the workman has abandoned the service or came to be retrenched, will decide the fate of the controversy. It is in these circumstances that we first advert to the issue of abandonment of service.
As indicated earlier, the workman has pleaded that on May 25, 1979, he sent a registered letter with medical certificate requesting the appellant to extend leave period. As far as this registered letter is concerned, the appellant has denied the receipt of the same. It is undoubtedly true that the workman has not placed on record the copy of the letter or the medical certificate alleged to have been sent on May 25, 1979, but the workman has produced on record the registered postal receipt, Exhibit DW 1. It is stated by the workman that he got the letter despatched through his neighbour as he was ill. The tribunal has also not rejected the authenticity of the registered postal receipt, Exhibit DW 1. It cannot be ignored that the workman is an illiterate person coming from a remote part of the State of Bihar. We would have ordinarily not accepted the word of the workman, but there is intrinsic evidence to support the claim of the workman that he had, in fact, sent a letter on May 25, 1979, by registered post, requesting the appellant to extend his leave due to his illness. The intrinsic evidence is in the form of the statement recorded by the Conciliation Officer in which he makes reference to the letter dated May 25, 1979. The demand notice issued by the workman on June 18, 1979, is on the record and it also makes a categorical reference as under:-
"...... The workman wrote to the management for extension of leave on medical ground and he sent a medical certificate on May 25, 1979 by registered A.D. vide which he requested leave upto June 10, 1979........."
It also needs to be noted that his leave would have expired on May 26, 1979, and before his leave could expire, he had sent an application/letter on May 25, 1979, requesting the appellant to extend the leave. Having regard to the status and calibre of the workman, we are unable to imagine that the workman could have sent any other communication save and except the application for extension of leave on May 25, 1979. The evidence of the workman recorded by the tribunal also inspires confidence in us to believe him because he has fairly conceded to have received a registered letter dated May 29, 1979. It also needs to be noted the anxiety of the workman to join and continue in service. In the statements of claim filed by the workman, he has categorically averred that by his letter dated May 25, 1979, he had requested leave up to June 10, 1979. Consistent with this, the workman had gone to the factory on June 11/12, 1979, and requested the Personnel Officer to allow him to join the service. The story of the workman, therefore, appears to us to be more reliable and acceptable and we see no hesitation in accepting the same. As far as the tribunal is concerned, without assigning any reasons as to why the workman''s word should not be accepted, has just disposed of the evidence of the workman by saying that the evidence of the workman cannot be accepted. If the entire controversy is looked into, bearing in mind the chain of circumstances, we prefer to accept the evidence of the workman on the best of probabilities. In addition to this, it may not be out of place to mention that the workman in his demand notice dated June 18, 1979, has also set out these facts and also averred that on June 11/12, 1979, he had gone to the factory premises and met the Personnel Officer requesting him to allow him to join the service. As against this, the main evidence placed on record by the learned counsel for the appellant is the two registered letters, dated May 29, 1979 and June 13, 1979 letter, if read in the facts and circumstances of the case that on May 25, 1979, the workman had sent a letter/application by registered post to the appellant praying for extension of leave, it is only thereafter that the appellant thought to write to the workman on May 29, 1979. The registered letter sent by the workman did not come back to the sender and having accepted the evidence of the workman that he had sent the registered letter on May 25, 1979, it would be appropriate to hold that since the said registered letter was not returned to the sender, it must have reached the addressee. The workman has admitted the receipt of the letter dated May 29, 1979, but since before that date he had already sent the letter on May 25, 1979, by registered post, requesting the appellant to extend leave up to June 10, 1979, he accordingly made efforts to join the service on June 11/12, 1979. It is in these circumstances that we are of the opinion that the learned Single Judge was right in holding that the workman did not abandon the service and the services of the workman were terminated amounting to retrenchment. Mr. Mutneja, the learned counsel for the appellant, vehemently urged that the plea of abandonment raised by the appellant must be accepted since the workman did not choose to report as per the registered letter dated May 29, 1979, and if the workman has failed to report as per the letter dated May 29, 1979, it would clearly fall in exception to Section 2(oo)(a) of the Act. We are unable to accept this contention in view of the finding recorded hereinbefore as regards the abandonment.
It was then urged by Mr. Mutneja, that the tribunal on appreciation of oral and documentary evidence reached a finding of fact that the workman has abandoned the service. It is not permissible for a writ Court to disturb the same. We are unable to accept this contention. The tribunal has failed to consider various circumstances which go to support workman''s case. It is, therefore, permissible for writ Court to disturb the finding of fact. The contention of the appellant as regards the applicability of Section 2(oo)(a) must, therefore, fail.
Once it is held that there was no abandonment on the part of the workman, it must follow that the termination would amount to retrenchment.
Mr. Mutneja, the learned counsel, then urged that assuming that there is termination amounting to retrenchment yet there is substantial compliance of Section 25-F of the Act, and in order to support this contention, he drew support from the registered letter dated June 13, 1979 alleged to have been sent to the workman. In our opinion, the conditions prescribed u/s 25-F of the Act, are not complied with. The key words in Section 25-F are, "..... the workman has been paid in lieu of such notice......" Even Clause (b) of Section 25-F of the Act has not been complied with inasmuch as the appellant has not worked out the total amount payable to the workman under the said clause. If this is so, in our opinion, it cannot be held that the provisions of Section 25-F of the Act were complied with. If that be so, the termination order amounting to retrenchment is illegal and cannot be sustained.
Coming to the contention raised by Mr. Mutneja, the learned counsel for the appellant, relating to the enforceability of the award under Sections 17, 17-A and 19 of the Act, it need not detain us any longer because it will always be subject to the decision in a writ petition under Article 226 of the Constitution.
In order to complete the judgment we may refer to the decisions of the Supreme Court which are relied upon by Mr. Mutneja. In our opinion, these judgments do not help the appellant and are distinguishable. G. T. Lad and Others Vs. Chemical and Fibres of India Ltd., Orissa State Electricity Board v. Orissa Tiles Limited J.T. 1993(3) 613 and Gurmail Singh and Others Vs. State of Punjab and Others, .
Lastly, it was contended by Mr. Mutneja, that the award of Rs. 30,000/- towards the back wages by the learned Single Judge is totally illegal and the only course left open to the Court was to send the issue down to the tribunal for adjudication. Ordinarily, that may be the correct position and the learned Single Judge was very much aware of this legal position, but having regard to the time elapsed, the learned Single Judge has awarded a lumpsum of Rs. 30,000/-. There is no error in the exercise of the discretionary powers in that behalf and we see no reason to interfere with the said discretion.
In the result, the Letters Patent appeal No. 534 of 1993 has no substance and the same is dismissed without costs.
Coming to the Letters Patent Appeal No. 646 of 1993, the same is beyond time by 36 days. We condone, the delay. In view of our findings recorded hereinbefore, we do not see any reason to interfere with the discretion exercised by the learned Single Judge in awarding an amount of Rs. 30,000/- towards the back wages to the workman. Letters Patent Appeal No. 646 of 1993 to stand dismissed. No order as to costs.
(sd) Swatanter Kumar, J.