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2007 DIGILAW 1469 (DEL)

ULTIMATE FASHION PVT. LTD v. SHARAFAT ALI

2007-07-25

HIMA KOHLI

body2007
HIMA KOHLI, J. ( 1 ) THE present petition is directed against the award of the Labour court dated 6th October, 2005, whenunder it was held that the termination of the service of the respondent workman by the petitioner management without complying with the provisions of Section 25f of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), was illegal and unjustified and it was directed that the respondent workman be reinstated with 50% back wages. ( 2 ) IN the statement of claim filed by the respondent workman before the Labour Court, he claimed that he joined the services of the petitioner management as a Tailor in November, 1994 and his last drawn salary was Rs. 4000/-per month. It was averred that the petitioner management was not maintaining proper records of statutory benefits like Provident Fund, ESI etc. and when the respondent workman demanded the same, the petitioner management became vindictive and revengeful, and when the respondent workman took a leave of seven days after getting the same approved by the petitioner management and returned to resume duty on 4th December 2000, he was informed by the petitioner management that his services had been terminated. The respondent workman claimed that he was not paid his earned wages for the period w. e. f. 1st november 2000 to 3rd December, 2000, and was neither issued any notice, nor paid any compensation in lieu of notice and therefore, the petitioner management had violated the provisions of Sections 25 F, 25g, 25h of the Act. Thereafter the workman sent a demand notice dated 5th December 2000 to the petitioner management and having received no positive response, an industrial dispute was raised by the respondent workman which was referred for adjudication in the following terms of reference: Whether the services of Sh. Sharafat Ali have been terminated illegally and/ unjustifiably by the management and if so to what sum of money as monetary relief along with consequential benefits in terms of existing laws/ Govt. Notifications and to what other relief is he entitled and what directions are necessary in this respect" ( 3 ) IN its written statement, the petitioner management pleaded that it had never terminated the services of the respondent workman and in fact, he had himself left the job on his own on 31st October 2000, after settling his dues in full and final. While denying the contention of the respondent workman, it was stated that the respondent workman had joined the services of the petitioner management as an 'alter Man' on 1st June 1999 and his last dawn salary was Rs. 3000/-per month. ( 4 ) BASED on the pleadings of the parties, the following issues were framed by the Labour Court on 6th February 2004: "1. Whether the workman himself abandoned the job after settling his dues in full and final" 2. As per terms of reference. " ( 5 ) TAKING into account the evidence tendered by the parties as also the documents placed on record, the Labour Court came to the conclusion that the facts mentioned by the petitioner management in its written statement were contradictory to the position as emerged from the documents on which it placed reliance, and accordingly it was held that it could not be believed that the respondent workman had resigned from his job or that he was given payment by the petitioner management in full and final settlement. Accordingly, the first issue was decided in favour of the respondent workman. So far as the second issue is concerned, it was observed by the Labour Court that there was no dispute about the fact that the respondent workman had worked for more than 240 days in the year preceding his alleged date of termination with the petitioner management and therefore it was necessary for the petitioner management to comply with the provisions of Section 25 F of the Act and since the termination of the respondent workman's service was in contravention of the said provision of law, therefore by way of the impugned award dated 6th October 2005, the termination was held to be illegal and unjustified and it was directed that the respondent workman be reinstated with 50% back wages. ( 6 ) LEARNED counsel the petitioner states that the impugned award is erroneous in so far as the Labour Court has failed to appreciate that the reference in itself was incompetent because the petitioner management had never terminated the services of the respondent workman, but he had himself abandoned his job. ( 6 ) LEARNED counsel the petitioner states that the impugned award is erroneous in so far as the Labour Court has failed to appreciate that the reference in itself was incompetent because the petitioner management had never terminated the services of the respondent workman, but he had himself abandoned his job. It is stated that the impugned award is based on misappreciation of evidence and the correct position is that while the respondent workman had left the job on his own on 31st October, 2000, his resignation was accepted with effect from 1st November, 2000 and the Labour Court erred in not taking into account the Ledger of salary account of the respondent workman. ( 7 ) IT is contended that the petitioner management had set up the case of abandonment of service and that so far as the principles governing abandonment are concerned, an inference of abandonment or relinquishment of service is not easy to draw and that the surrounding circumstances needed to be examined. Counsel for the petitioner states that an intention to abandon service would be gathered from the period of absence, response to a notice calling upon the workman to resume duty, and from the acts and the conduct of a party and the same is purely a question of fact, which was not appreciated by the Labour Court. ( 8 ) A bare perusal of the impugned award shows that the findings arrived therein are strictly based on the evidence tendered by the witnesses of the parties, the documents produced and the pleadings of the parties. It is recorded in the impugned award that the respondent workman while appearing as ww1 deposed in his affidavit tendered by way of evidence all the facts which he mentioned in his statement of claim. However the petitioner management did not put the alleged photostat copies of the resignation and the receipt of money in full and final settlement by the respondent workman to him in his cross- examination. In fact while the cross-examination of the respondent workman took place on 12th October, 2004, the aforesaid documents, marked as MW1/4 to MW 1/6 were filed by the petitioner management on the date of examination of the first management witness on 18th February, 2005, thereby depriving the respondent workman of an opportunity to admit or deny the said documents. In fact while the cross-examination of the respondent workman took place on 12th October, 2004, the aforesaid documents, marked as MW1/4 to MW 1/6 were filed by the petitioner management on the date of examination of the first management witness on 18th February, 2005, thereby depriving the respondent workman of an opportunity to admit or deny the said documents. While the respondent workman denied the suggestion of the petitioner management that he had received all his dues in full and final settlement on 31st, October, 2000 or that he did not worked for the petitioner management thereafter, no suggestion was put to the respondent workman by the petitioner management that he had resigned from his job. ( 9 ) THE position as it emerges from a perusal of the impugned award as also the pleadings and the documents placed on record is that the petitioner management in its written statement filed before the Labour Court had no where stated that the respondent workman had resigned from his job and the only plea that was taken was that the workman had left his job on his own and had already received his full and final payment on 31st October, 2000. However the documents on which the petitioner management sought to place reliance, namely, the alleged resignation letter being Ex. MW1/4, copy of full and final receipt being Ex. MW1/5 and the voucher of paying Rs. 5000/- to the respondent workman being Ex. MW1/6 were all dated subsequent to 31st October 2000,. e. alleged resignation letter was dated 1. 11. 2000 and the receipt and the voucher were both dated 2. 11. 2000, which clearly indicated foul play and malafides on the part of the petitioner management. It is also pertinent to note that the petitioner management had failed to specify in its written statement the amount that was accepted by the respondent workman in full and final settlement of his dues. ( 10 ) FURTHER, it is a settled position of law that a writ court should not interfere with factual findings of the lower courts and should restrain itself from reappreciating evidence while exercising powers of judicial review under Article 226 of the Constitution of India. Accepting the arguments made on behalf of the petitioner shall amount to reappricating the findings of facts. Reference in this regard may be made to the following judgments: (i) Sadhu Ram Vs. Accepting the arguments made on behalf of the petitioner shall amount to reappricating the findings of facts. Reference in this regard may be made to the following judgments: (i) Sadhu Ram Vs. Delhi Transport Corporation. AIR 1984 SC 1967. (ii) Harbans Lal Vs. Jag Mohan, (1985) 4 SCC 333 . (iii) (Calcutta Port Shramik Union Vs. Calcutta River Transport Association and ors. , 1988 (Supp) SCC 768. (iv) Sudhoo Vs. M/s Haji Lal Mohd. Biri Works and Ors. , 1990 Lab.. C. 1538 ( 11 ) IN view of the above discussion, it can safely be deduced that the impugned award does not suffer from any perversity, illegality or an error apparent on the face of the record. The learned Presiding Officer has recorded his findings in the impugned award after due application of mind and therefore, there is no reason for this Court to interfere with the impugned award. The writ petition fails and is accordingly, dismissed.